Safety-Kleen Corporation

National Labor Relations Board - Board Decisions

Oct 12, 1982

265 N.L.R.B. 84 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Safety-Kleen Corporation and Truck Drivers Union,
Local No. 407 of the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America and Textile Processors,
Service Trades, Health Care, Professional and
Technical Employees International Union, Local
No. 1 affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Cases 8-CA-14173 and 8-
CA-14876
October 12, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On July 8, 1982, Administrative Law Judge
Sidney J. Barban issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed an answering brief to Respondent's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge, to modify his remedy, 2 and to adopt his
recommended Order, as modified herein.3
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 In adopting the Administrative Law Judge's Decision and recom-
mended Order, we hereby modify the remedy to require that Respondent
expunge from its files any reference to the discharge of Thomas E.
Foster on.September 2, 1980, and notify Foster in writing that this has
been done and that evidence of this unlawful discharge will not be used
as a basis for future personnel actions against him, Sterling Sugars Inc.,
261 NLRB 472 (1982)
s In par. I(c) of his recommended Order, the Administrative Law
Judge uses the broad cease-and-desist language, "in any other manner."
However, we have considered this case in light of the standards set forth
in Hickmott Foods; Inc., 242 NLRB 1357 (1979), and have concluded that
a broad remedial order is inappropriate since it has not been shown that
Respondent has a proclivity to violate the Act or has engaged in such
egregious or widespread misconduct as to demonstrate a general disre-
gard for the employees' fundamental statutory rights. Accordingly, we
have modified the recommended Order so as to use the narrow injunc-
tive language, "in any like or related manner."
We have further modified the Administrative Law Judge's recom-
mended Order to include the full reinstatement language traditionally
provided by the Board. We also modify the proposed notice to conform
with the provisions of the recommended Order.
265 NLRB No. 11
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Safety-Kleen Corporation, Warrensville Heights
and Niles, Ohio, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraph l(c):
"(c) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of the rights guaranteed them by Section 7
of the Act."
2. Substitute the following for paragraph 2(a):
"(a) Offer Thomas E. Foster immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed, and make
him whole for any loss of earnings he may have
suffered due to the discrimination practiced against
him, in the manner set forth in the section of this
Decision entitled 'The Remedy."'
3. Substitute the attached notice for that of the
Administrative 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 Act gives em-
ployees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT discourage membership in or
activities on behalf of Truck Drivers Union,
Local No. 407 of the International Brother-
hood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other
labor organization, by discriminating in regard
to hire or tenure of employment of employees,
or in regard to any term or condition of em-
ployment.
84
SAFETY-KLEEN CORPORATION
WE WILL NOT coercively interrogate our
employees concerning activities on behalf of
or in support of a labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL offer Thomas E. Foster immediate
and full reinstatement to his former job or, if
that job no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or any other rights and privileges
previously enjoyed, and WE WILL make him
whole for any loss of earnings he may have
suffered by reason of the discrimination prac-
ticed against him, plus interest.
WE WILL expunge from our files any refer-
ence to the discharge of Thomas E. Foster, on
September 2, 1980, and WE WILL notify him
that this has been done and that evidence of
this unlawful discharge will not be used as a
basis for future personnel actions against him.
SAFETY-KLEEN CORPORATION
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge: This
matter was heard in Cleveland, Ohio, on July 27-29 and
August 18, 1981, before Administrative Law Judge
Charles W. Williamson. Administrative Law Judge Wil-
liamson having become unavailable to the National
Labor Relations Board (herein the Board), before issuing
a decision in this matter, these cases have been assigned
to me for the preparation and issuance of a decision and
other appropriate action.
The complaint in Case 8-CA-14173 was issued on Oc-
tober 20, 1980, based on a charge filed on September 3,
1980, by the Charging Party in that case named above
(herein Local 407). The complaint in Case 8-CA-14876,
together with an order consolidating cases, was issued on
July 6, 1981, based on a charge filed on May 27, 1981,
by the Charging Party in Case 8-CA-14876 named
above (herein Local 1).
The complaint in Case 8-CA-14173 alleges that Re-
spondent violated Section 8(a)(1) of the National Labor
Relations Act (the Act) at its Warrensville Heights,
Ohio, facility by interrogating an employee on August
29, 1980, concerning union activities of its employees,
and violated Section 8(a)(3) and (1) of the Act at that fa-
cility by terminating the employment of Thomas E.
Foster on September 2, 1980, because of Foster's union
or other concerted activity.
The complaint in Case 8-CA-14876 alleges that Re-
spondent violated Section 8(a)(3) and (1) of the Act by
terminating the employment of Charles Padden, Richard
Milheim, and Ronald Vanasdal at its facility in Niles,
Ohio, on or about May 23, 1981; and violated Section
8(a)(5) of the Act by failing and refusing to recognize or
bargain with Local I as the exclusive representative of
its routemen at that facility.
The answers to the complaints deny the unfair labor
practices alleged, but admit allegations of the complaints
sufficient to justify the assertion of jurisdiction (Respond-
ent, while engaged in the rental and servicing of parts
cleaning machines at branch offices in various States, in-
cluding Warrensville Heights and Niles, Ohio, during a
recent 12-month period, received goods directly from
outside Ohio at each of the Ohio branch offices men-
tioned of a value of $50,000), and to support a finding
that Local 407 is a labor organization within the meaning
of the Act. It was stipulated at the hearing that Local I
is a labor organization within the meaning of the Act.
Upon the entire record in this case, and after due con-
sideration of the briefs filed by the General Counsel and
Respondent, I make the following:
FINDINGS AND CONCLUSIONS
I. INTRODUCTION
The employees involved in this proceeding are em-
ployed at two of Respondent's branch offices as driver
salesmen-service men (herein routemen or salesmen)
whose duties include persuading customers to permit the
installation on the customers' premises of equipment
owned by Respondent for cleaning vehicle parts, and to
use other services furnished by Respondent. The equip-
ment involved apparently is not usually sold, but is
rented to the customer so long as the latter desires to uti-
lize Respondent's services. The salesmen are expected to
service Respondent's machines, and some machines
owned by customers, on the customer's premises, on a
rather rigid schedule, by installing or leaving fresh tanks
of cleaning fluid to be used in operation of this equip-
ment. The routemen are also expected to sell the custom-
ers related items distributed by Respondent, such as
brushes, cleaners, wiper blades, etc., which items are re-
ferred to in the records as "Allied Product."
The drivers are paid, in part, by commissions, for the
services they perform. It also appears that branch man-
agers receive substantial bonuses if the drivers perform
scheduled services each week, "on-time," and this is re-
ported in weekly forms to Respondent by Friday of that
week.
II. CASE 8-CA-14173
This case involves the four drivers at Respondent's
Warrensville Heights branch (referred to herein as "the
Cleveland Branch") at the times material: Thomas E.
Foster, Steven Sanducci, Joseph Bartok, and Noel
Shriver.
Foster, who had been terminated in 1979, without his
fault, from one of Respondent's branches, was reem-
ployed at the Cleveland branch in March 1980 (all dates
in this section are in 1980, unless otherwise noted). In
filling out his job application, Foster noted that he had
one traffic violation in the preceding 2 years, although
he had, in fact, had a second traffic citation some 22
months previous; but, he testified, at the time he com-
pleted his application he did not recall this former viola-
85
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion. The Cleveland branch manager at the time, Paul
Herbert, urged his superiors that Foster should be re-
tained, notwithstanding the error on his application, be-
cause he was such a good salesman. George Mortimer,
the regional manager of Respondent's Pittsburgh region,
which includes both the Cleveland and the Niles, Ohio,
branches, agreed, and on May 9 Foster was advised that
Respondent had taken into account that he had "perhaps
forgot[ten] this other violation," and that he would be
retained, but would be on probation for I year and be
required to take a defensive driving course.
It would appear that Foster quickly became one of
Respondent's most productive salesmen, as indicated by
a promotional newsletter put out by the Pittsburgh
region, urging the salesmen in that region to greater sales
efforts, in which, inter alia, the following appeared:
BRANCH OF THE PERIOD
Showing us all what a well-run Branch with talent-
ed salesmen looks like, Mark Wimmer backed up by
Tom Foster, Noel Shriver, Steve Sanducci and Joe
Bartok of the Cleveland Branch stole the show in
period 7.... CONGRATULATIONS TO YOU
MARK AND TO YOUR SALES TEAM FOR A
SPLENDID PERFORMANCE IN PERIOD 7.1
SALES AND SERVICE REPRESENTATIVE
OF THE PERIOD
There's no doubt about the super job done in
Period 7 by Tom Foster of the Cleveland Branchl
Tom performed 295 services, put out 22 Parts-
washers; 3 I.C.'s; 11 C.O.M.S. and sold $1,098.00 in
Allied Product. This was certainly a fine effort by
Tom. CONGRATULATIONS TO YOU TOM
FROM THE PITTSBURGH REGION!
On August 25, Foster, Sanducci, and Bartok signed au-
thorization cards for Local 407, and, on August 28, the
Union sent a letter to the Cleveland Branch manager
claiming to represent a majority of the routemen and re-
questing recognition of the union as the representative of
the routemen for collective bargaining. Branch Manager
Mark Wimmer (who had replaced Branch Manager Paul
Herbert in June 1980) admits that he received the letter
on August 29.2
Sanducci and Bartok were in the office when the letter
from Local 407 was received. They recall Wimmer
reacting with perturbation, advising Mortimer of its re-
ceipt on the telephone. After this telephone conversation,
Mortimer called to talk with Sanducci. According to
Sanducci's testimony, which is not denied, Mortimer
asked how Sanducci was doing, and then asked, "What's
going on," to which Sanducci replied, "Nothing." Mor-
Respondent divides its sales year into 13 4-week periods, each start-
ing on a Sunday and ending on a Saturday. The seventh period would be
a 4-week period ending in mid-July 1980.
2 It seems clear and I find that Wimmer had little difficulty in ascer-
taining the identity of the employees who had signed for the Union.
Wimmer recalled that the letter from Local 407 said that "at least three
of the people . . . wanted to bring the Union in." In a situation such as
this, where only one of four employees did not join with the others in
seeking union assistance, the probabilities are strong that Respondent
would soon become informed, particularly where, as here, Respondent
engaged in questioning the employees concerning their activities.
timer again asked, "What is going on" Sanducci respond-
ed, "Nothing. I don't know what you are talking about."
Mortimer said, "Come on. What is going on? What is
going on down there?" Sanducci answered that nothing
was going on, and asked, "Why are you calling me?"
Mortimer then referred to the fact that, when there was
some question about Sanducci's eligibility for the hospital
plan, he had helped Sanducci to secure hospitalization in-
surance. Mortimer continued, "In the future, I would
hope you.would do me some favors, too." "You do me a
favor, I do you a favor." Sanducci professed not to
know what Mortimer meant, to which the latter re-
sponded, "I think you know what I mean," and asked to
talk to Wimmer.
Foster came into the office after the other two. Mor-
timer also asked to talk to him. In the course of refer-
ences to Foster's wife and children and to Foster's need
to enroll in the safe driving course (Foster said that he
had done so), and similar matters, Mortimer asked if
there were any problems at the branch that he should
know about, which Foster appears to have avoided an-
swering, and ended by saying that he would help Foster
with any problem concerning the safe driving course,
commenting, "I might be needing a favor from you some
day." During the course of this conversation, Mortimer
told Foster that he "was doing a super job . . . an out-
standing job."
According to Sanducci, Mortimer had never called to
speak to him about work before.
The next workday was Tuesday, September 2. At the
end of that day, Wimmer discharged Foster for allegedly
"falsifying documents." The immediate cause, from
Wimmer's testimony, was the fact that on three reports,
two dated August 28 and one dated August 29, 1980,
Foster stated that he had "pulled" (i.e., removed) Re-
spondent's machines from the premises of three custom-
ers, apparently at the customers' request, when, in fact,
he had not yet done so. Foster explained that in each
case his truck was overloaded and he informed the cus-
tomer that he would pick the machine up at a later time.
Foster also testified, without contradiction, that he had
told Wimmer on those occasions that he had been unable
to pick up the machine at two of the customers, without
any response from Wimmer. Wimmer's testimony does
assert that there was room on Foster's truck to bring the
machines in "on those particular days," but this testimo-
ny appears vague, not positive, and based not on person-
al recollection, but on after-the-fact calculations or esti-
mates. I credit Foster.
According to Foster's testimony, which I credit, on
September 2, Foster told Wimmer that he had brought in
the machine from the third customer involved and
showed it to Wimmer in the warehouse at Wimmer's re-
quest. Wimmer denied that Foster had returned the ma-
chine because the serial number on the machine did not
match Respondent's records. To the extent Wimmer's
testimony is different, it is not credited. Wimmer agreed,
on cross-examination, that this discrepancy in serial num-
bers was not unusual where the driver who placed, or
replaced the machine at the customer's premises did not
keep a careful record. Foster, who had not placed this
86
SAFETY-KLEEN CORPORATION
particular machine, asserted that this was the reason the
serial numbers did not match in this case. There was no
evidence that these alleged "falsifications" with respect
to "pulling" these three machines caused any detriment
to Respondent or benefited Foster.
Wimmer also asserted that Foster's alleged "falsifica-
tion" of his employment application, his participation in
a practice called "plugging tickets," and his failure to
turn in cash receipts on one occasion in early July were
factors in Wimmer's decision to discharge Foster. In
some confusing testimony, Wimmer also indicated that
he had suspicions that Foster was selling Respondent's
products at unauthorized prices.3 Each of these alleged
reasons for Foster's termination will be considered here-
under.
1. The employment application incident, as has been
noted, occurred well before Wimmer came to the Cleve-
land Branch and his testimony makes clear that he is ill-
informed as to the details (he is in error as to the number
of Foster's violations, the term of this probation, and the
terms of Respondent's letter).
2. The so-called practice of "plugging tickets" is not
fully or clearly explained in the record. It may refer to
several similar practices, only one of which is referred to
in any detail in the record.
Because Respondent places considerable emphasis on
routemen performing prescribed services for customers
(e.g., replacement of used drums of solvent at the cus-
tomer's premises with drum of fresh solvent), on a fairly
rigid schedule, and even makes the branch manager's
bonus contingent on these services being performed and
reported by the end of the workweek, a practice grew
up at the Cleveland Branch (and perhaps elsewhere) for
routemen who on their regular visits found the custom-
er's place of business temporarily closed, to nevertheless
leave drums of fresh solvent, without actually installing
them, and write up the service as being performed, and
sign the ticket with their own names on behalf of the
customer.' The ticket would then be sent to Respond-
ent's main office showing that the service had been per-
formed on time.d Some of the routemen were instructed
as to that practice by the then Cleveland Branch man-
ager, Paul Herbert, who was replaced by Wimmer in
June 1980. Within 2 weeks thereafter, Wimmer found out
about this practice of "plugging tickets," and directed
that it be stopped. It is significant that Wimmer concedes
that from this point in late June Foster did not again
engage in the practice of "plugging tickets."
According to Wimmer, however, about the time he re-
placed Herbert as branch manager at Cleveland, Re-
spondent's main office informed him that several custom-
' On cross-examination, Wimmer stated that he never raised this matter
with Foster because "[t]here was nothing I could positively state or say
why. But this made me suspicious."
4 Wimmer's testimony indicates that there are on file with Respondent
agreements by the customers which permit the dropoff of drums in just
this manner.
s I infer from the record as a whole that the practice of "plugging
tickets" may have included, on occasion, writing up tickets for submis-
sion to Respondent's main office when the drums of solvent had not actu-
ally been left at the customer's premises, or some other scheduled service
had not actually been performed, when the driver anticipated performing
the service the following week.
ers (Wimmer consistently said "four," but could recall
only three) complained that they had not received the
services for which they were being billed, and refused to
pay. Notwithstanding that these alleged incidents oc-
curred during Herbert's tenure, Wimmer says that Re-
spondent deducted from him the bonuses that had been
paid, presumably to Herbert, on these sales. Some of
these incidents, but not all of them, Wimmer attributed
to Foster. Wimmer recalled specifically that Respondent
informed him that one of the three complaining custom-
ers, Mrs. Krantz of Street and Dirt Bike, had complained
of being billed for services not performed by Foster.
However, when called as a witness by the General
Counsel, Krantz testified that she had not had any com-
plaint about Respondent or its services and had never
complained about being charged for services not per-
formed. I credit Krantz who appears to be a disinterested
third party.
3. At the end of a workday, on a Friday in early July
1980, Foster failed to turn in the invoices and cash re-
ceipts from his route. On the following Monday he
turned in the invoices and the receipts collected. Foster,
in his testimony seemed to equate this with Respondent's
practice at the time of permitting routemen to give Re-
spondent personal checks against their daily collection
when the routeman had no opportunity to go back to the
bank.6 Wimmer says he discontinued the practice. When
Wimmer brought this incident to the attention of Divi-
sion Manager Mortimer, the latter instructed Wimmer
not to fire Foster, but to watch him.
4. Lastly, as has been noted, there is no evidence to
support the alleged suspicion that Foster sold Respond-
ent's products at unauthorized prices. Foster denies that
he did so.
Ill. ANALYSIS AND CONCLUSIONS
A. Interrogation
Immediately upon being informed of Local 407's claim
to represent the routemen at the Cleveland Branch, Re-
gional Manager Mortimer called one of the four route-
men at work-a most unusual action-to inquire what
was going on at the branch. Shortly thereafter Mortimer
spoke to another routeman at the branch office, in an at-
tempt to find out what the problems were at the branch.
When the men sought to avoid Mortimer's questions, he
became insistent and suggested that cooperation by the
men would be tied in to favors by Respondent. In these
circumstances, I find that Respondent engaged in coer-
cive interrogation in violation of Section 8(a)(1) of the
Act.
B. Discharge ofFoster
Foster was one of the best salesmen-at times the very
best salesman-in the Pittsburgh region. In August
Foster and two other routemen signed Local 407 author-
ization cards. On August 29, Respondent received the
Union's claim to represent a majority of the four route-
^ On one occasion, while Herbert was branch manager, Foster admits
giving Herbert a bad check.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
men at the Cleveland Branch. At the end of the next
scheduled workday, September 2, Branch Manager
Wimmer discharged Foster.
The record shows that Wimmer was strongly opposed
to the unionization of the routemen. Wimmer's precise
reason for discharging Foster when he did is somewhat
difficult to pin down. However, shortly before that date,
Foster had noted on records which he turned in that Re-
spondent's machines had been removed ("pulled") from
the premises of three customers (apparently at their re-
quest), when, in fact, because his truck was fully loaded,
Foster had merely promised to return to pick up the ma-
chines. Respondent argues that this constituted "falsifica-
tion" of records justifyiAg discharge. However, while
such terminology (falsification) may be technically cor-
rect, it seems overblown here, where there is no evi-
dence that Foster's action harmed Respondent or benefit-
ed Foster. Moreover, Foster testified, and Wimmer does
not deny, that Foster informed Wimmer, about the time
that he submitted these erroneous reports, that he actual-
ly had to return to the customer's premises for two of
the machines, and Wimmer at the time made no com-
ment.
In its brief (p. 5), Respondent narrows the reason for
Foster's termination down to an asserted "confrontation"
between Foster and Wimmer on September 2 concerning
one of these machines. Thus, at the end of the day, on
September 2, in response to Wimmer's inquiry, Foster
advised that he had that day brought in one of the three
machines. However, when Foster showed Wimmer the
machine in the warehouse which he claimed to have
brought back, Wimmer disputed Foster's assertion be-
cause the serial number on the machine did not match
the number on Respondent's records. But at the hearing,
Wimmer conceded, as Foster testified, that this discrep-
ancy often happened because of the carelessness of previ-
ous routemen in recording serial numbers of replacement
machines.
Wimmer also testified to number of other reasons for
firing Foster, as follows: (1) Wimmer referred to an as-
serted "falsification" of Foster's application for employ-
ment, an omission, clearly not intentional, which oc-
curred before Wimmer became branch manager, and
which Respondent had long ago decided did not require
Foster's discharge; (2) Foster's asserted "falsification" of
records showing services performed as of a certain time,
which had not, in fact, then been performed, which
records Foster and other routemen had prepared in ac-
cordance with the instructions of the prior branch man-
ager, and which, Wimmer conceded, Foster had discon-
tinued as of the previous June at Wimmer's direction;7
(3) Foster's failure in the previous July, on one occasion,
to turn in cash receipts obtained on Friday until the fol-
lowing Monday, for which Regional Manager Mortimer
at the time told Wimmer not to discharge Foster; and (4)
an asserted suspicion that Foster had sold Respondent's
I Wimmer particularly asserted that one specified customer complained
to Respondent that she had not received the services for which she was
being billed-due to Foster's action--causing Wimmer to "lose money
out of his pocket." That customer testified at the hearing that she had
had no complaint with Respondent's services, and had never complained
to Respondent about being billed for services she never received.
products at unauthorized prices, a matter concerning
which, admittedly, there is no proof.8
Respondent, of course, has the right to discharge its
employees for any reason, at any time, or for no reason
at all, so long as it does not violate the Act, or other law
or binding agreement. However, in this case there are a
number of factors that indicate an improper motive in
the termination of Foster. Thus, not only did Respondent
actively welcome Foster back into its employ in March
1980, but, also because he was an outstanding salesman,
rejected several improprieties on Foster's part as reasons
to terminate him when they occurred. But immediately
after being informed that three out of four salesmen at
the Cleveland Branch had authorized a union to repre-
sent them, Respondent terminated Foster, according to
Branch Manager Wimmer in substantial part because of
those matters which Respondent had previously con-
doned.
The asserted immediate cause of Foster's discharge
was three erroneous notations on company reports (that
he had "pulled," i.e., removed, machines from the prem-
ises of three customers when he had not actually yet
done so) which do not appear to have been of any sig-
nificant consequence and two of which notations
Wimmer knew and had passed off without comment
prior to learning of the employees' union activity. It is
also contended that Wimmer fired Foster because the
serial numbers on one of these machines which Foster
claimed to have brought in on September 2 differed from
the number contained in Respondent's records. But here,
too, Wimmer admitted that this occurred from time to
time where the routeman who placed the machine was
careless. It is not contended that Foster was at fault in
this respect.
Respondent, however, contends (br. p. 8) that the fact
that Respondent did not terminate all four of the route-
men, or at least two of them "so that there might be at
least a tie in the election process," argues against an im-
proper motive in firing Foster. However, it is not neces-
sary to fire all union members to chill an organizational
attempt, one is frequently sufficient.9 Respondent may
well have thought that, at the moment, Foster was the
only one of the unionized routemen who was vulnerable.
It has been found that Branch Manager Wimmer was
aware of the identity of the three employees who signed
for the Union and the one who did not. By firing one
employee among the union group, Respondent could (by
replacing him) achieve the tie vote that Respondent sug-
gests.
Based on the above, and the record as a whole, I am
convinced and find that Respondent discharged Thomas
E. Foster because of his activities in support of Local
407, in violation of Section 8(aXl) and (3) of the Act.
a When Wimmer terminated Foster, he also brought up a bad check
Foster had given Respondent at some time before Wimmer became
branch manager. Though Respondent cross-examined Foster on the
point, so far as I am aware, Wimmer did not mention this in his testimo-
ny or assert it as a reason for Foster's discharge.
9 Though the record is silent on the point, Respondent in its brief as-
serts that there was a representation election at the Cleveland Branch
which Local 407 lost.
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SAFETY-KLEEN CORPORATION
IV. CASE 8-CA-14876
This case involves the routemen at Respondent's Niles,
Ohio, Branch, also referred to in the record and herein
as the "Youngstown Branch." At times material to the
complaint, the routemen at the Youngstown Branch
were Charles Padden, Richard Milheim, and Ronald J.
Vanasdale. The branch manager was Jacob (Jake) Kle-
mann. The Youngstown Branch, like the Cleveland
Branch, is included in Respondent's Pittsburgh region.
At the time George Mortimer was the regional manager.
On May 5, 1981 (all dates in this section are in 1981
unless otherwise noted), Padden, Vanasdale, and Milheim
signed authorization cards designating Local I as their
bargaining representative.
Albert A. Meranto, business representative of Local 1,
and district chairman of the Union's Youngstown Dis-
trict, attempted unsuccessfully, until late in the afternoon
on Friday, May 22, to contact Mortimer, by phone. That
afternoon Mortimer returned Meranto's earlier call. Ac-
cording to Meranto, he explained who he was, that he
represented Local 1, and that he was from Youngstown.
Meranto said he had Mortimer's employees "signed 100
percent," and that he would like to sit down with Mor-
timer and "sign a recognitional agreement." Mortimer
said he would be out of town until the following
Wednesday, at which time "he would get back to [Mer-
anto]." According to Mortimer, in this conversation
Meranto said that "he had signed cards from several of
my people" and that he would like to talk to Mortimer.
Mortimer denied that Meranto said he wanted to talk
about Respondent "signing a representation agreement,"
and asserted further that Meranto did not further identify
the employees he claimed to represent, saying only that
he covered the entire State of Ohio. Mortimer testified
that he told Meranto that he would be going to Pitts-
burgh the following week and would call Meranto at the
end of the week. He, nevertheless, did not do so and has
had no further contact with Meranto. As between the
two versions of this conversation, I credit Meranto. In
particular I believe that it is much more likely that Mer-
anto told Mortimer that he wanted to meet with Mor-
timer to secure Respondent's recognition of the Union as
the employees' representative, as Meranto claims, than
that he did not, as Mortimer says. That would be the
principal, if not the only purpose of such a meeting. If
Mortimer's version were accepted it would appear that
Meranto did not state any reason for wanting to meet
with Mortimer, nor did the latter ask the purpose. That
is improbable. Similarly, since Meranto had 100 percent
of the unit signed up, it would be likely that he said so.
Certainly, he would not have claimed to represent
merely "several employees," as to represent Mortimer as-
serts, rather than claiming at least majority representa-
tion. There is no dispute that Meranto did not specifical-
ly identify the Branch office that he claimed to repre-
sent, but there also seems to be no dispute that Meranto
stated that he was based in Youngstown, although Mor-
timer also says Meranto stated that he had jurisdiction
over the entire State of Ohio.
The employees at the Youngstown Branch were given
off Friday, May 22, and Monday, May 25, as a Memorial
Day holiday. When Milheim and Vanasdale arrived for
work on Tuesday morning, they found all the locks
changed so that they could not get in to work. When
Branch Manager Klemann arrived he told the routemen
that they had been terminated as of the close of business
on Friday, May 22. He advised them that each of them
would receive a mailgram (which Klemann had sent
from his home on Saturday) confirming their termination
for "lack of performance increase in period 5." Respond-
ent contends that over a week prior to May 22 it had de-
cided to fire the three routemen as of that date for the
reasons set forth hereunder.
Klemann testified that, about the middle of May, he
was at his "wit's end" with the routemen, that "sales had
dropped drastically and the entire branch was going
downhill." For this reason, he asked Mortimer to come
to the branch on May 14 and meet with the men. Mor-
timer did so. However, before considering that meeting
and its aftermath, it will be useful to discuss the evidence
of the Youngstown Branch drivers' performance for pe-
riods 3, 4, and 5. 10
According to Respondent's records for the entire Pitts-
burgh region (Resp. Exhs. 13-15), ranking the drivers ac-
cording to their commissions received on sale and serv-
ices, Milheim and Vanasdale steadily increased their
commission in each period, including commissions on
"Services," "Placements," and "Allied Products."
Padden, who was not hired until March 31, also shows
an increase in each category in period 5 over period 4."
These three routemen were ranked about midway among
all the drivers in the Pittsburgh region; a number of driv-
ers who ranked below them are still employed by Re-
spondent.
In contrast to the documents noted above, Respondent
also introduced another exhibit (Resp. Exh. 11), asserted-
ly prepared by Regional Manager Mortimer, which ap-
pears to show that Milheim had an increase in services in
period 4 over period 3, but a decrease in services in
period 5 over period 4.12 This exhibit seems to show
that Milheim had a decrease in Allied Product sales in
periods 4 and 5 with respect to the previous periods. On
the other hand, Vanasdale is shown to have increased his
number of services in period 4 over period 3, and in
period 5 over period 4. The exhibit shows, as Vanasdale
recalled, that his Allied Product sales decreased, which
Vanasdale attributed in part to his hand being in a cast
during periods 4 and 5,13 and also to his being regularly
used in a territory other than his own during period 5.
10 According to my calculations, period 3 ran from March I to March
28; period 4 ran from March 29 to April 25; and period 5 ran from April
26 to May 23.
" The only category showing a negative trend on these records are
Respondent's calculations "annualizing" the routemen's commissions It is
not explained why Respondent expected that the routemen's annual com-
mission would decrease while their actual commissions for each period
increased.
" Milheim explained that this was due to his being assigned at the be-
ginning of period 5 to a new territory in .which the customers were dis-
satisfied with Respondent because of prior poor service by another
branch office. He reported this to management,
's Mortimer's testimony indicates that Respondent normally tended to
excuse poor performance due to an injury.
89
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On cross-examination Milheim and Vanasdale testified
to their recollection of their past performance in various
areas. To the extent that their recollection appears to
differ from the records, I have given it little weight.
Padden, who was a new employee, is shown by Re-
spondent's Exhibit 11 to have less services and product
sales in period 5 than in period 4, which he attributed to
the fact that in period 4 Klemann was riding with him
and assisting in his sales and services, while in period 5
he was performing alone. The record indicates that nor-
mally new employees are not evaluated by Respondent
until after 90 days. 14
About the first of May 1981, Respondent established a
new standard of performance for the routemen, Klemann
advising them that they would be expected to make $25
a day in commissions, which he said would give them
$6,000 a year. However, Klemann told Padden that, be-
cause he was so new, he would not be expected to
achieve this goal at that time. Padden states that, never-
theless, he made the $25-a-day standard the first week,
but fell slightly below the following 2 weeks before he
and the other two routemen were terminated. Vanasdale
asserts that the first week, still hampered by the injury to
his hand, he fell below the standard, but exceeded the
$25-a-day standard the following 2 weeks. Milheim testi-
fied that during the first week he exceeded the new
standard, but fell slightly below on the second week.
About May 20, Klemann spoke to Milheim about this,
and, after hearing Milheim's explanation for his failure to
make the $25 standard, told Milheim that he would be
given 2 weeks to come up to the standard and expressed
confidence in his ability to accomplish this. Milheim ex-
ceeded the $25 standard on May 20 and 21, for which he
was complimented by Klemann. None of the routemen
worked on May 22. All were discharged as of the end of
that day for asserted poor performance, as has been
noted.
Mortimer and Klemann testified that after an early
morning meeting with the Youngstown routemen on
May 14 that they agreed that Klemann should discharge
all three routemen at the end of that period (which
would end May 23), because of their performance and
apparent lack of enthusiasm. 15
Mortimer states that on the next day, May 15, he sent
the following memorandum to Klemann, which Klemann
asserts that he received on May 18. Mortimer also says
that he sent a copy of the memo to his superior, Clyde
Phillips, who also says he received this memo on May
18. The memo states:
Jake:
After talking with your sales reps Paden [sic], Mil-
heim and Vanasdale yesterday and after going over
their production during Periods 3, 4, and 5, I advise
you seriously consider replacing these three men.
14 On March 6, after his first 90 days, Milheim was given a favorable
rating and a $10 raise for satisfactory performance. Similarly Vanasdale
was given an excellent appraisal and a $10 raise on April 16. Klemann
contends both immediately dropped drastically, or went downhill.
15 Klemann asserts that after this meeting "we [Klemann and Mor-
timer] agreed that all three should be terminated." Mortimer testified that
Klemann said that "he would terminate them at the end of the period."
Their lack of enthusiasm for the job was apparent
and as you can see their figures bave been consist-
ently below objectives.
You should plan to make your changes at the end
of Period 5.
However, there are a number of factors that would in-
dicate that Klemann had not anticipated terminating the
Youngstown routemen as of May 22. As has been noted,
on May 20, Klemann told Milheim that Milheim would
have two additional weeks to start making the new $25
commission standard, and, in fact, expressed confidence
that Milheim could do so. On May 21, Klemann con-
gratulated Milheim for making the standard on May 20
and 21.
On Tuesday, May 19, Klemann took pains to compli-
ment and thank Vanasdale for the production he had ac-
complished the preceding week.
On May 21, Klemann suggested to Padden that he
work on Friday, May 22, and take off Tuesday, May 26,
from work instead, which Klemann admits would not be
possible if Padden were to be discharged on May 22.
Also, on Tuesday, May 19 (or Wednesday, May 20),
Klemann called Padden into his office to ask if Padden
were having trouble with his job, and when Padden re-
plied that "there was a lot about the product" that had
not been explained to him, Klemann gave him an instruc-
tional book to take home and study, explaining that "it
would give [Padden] the product knowledge that [he]
needed."
As of May 22, Klemann did not have replacements for
the three routemen. He had interviewed one man who
promised to come to work on June 1. On Saturday, May
23, Klemann called Manpower (temporary help) for two
additional men to begin work on May 26.
V. ANALYSIS AND CONCLUSIONS
These three discharges present a very difficult case.
Though Respondent contends that each of the three em-
ployees was terminated for poor performance on the job,
there is substantial evidence indicating that their work
performance was not as bad as Respondent contends, or
was affected by factors which, under ordinary circum-
stances, one would expect Respondent to excuse-two of
the employees, who were recently rated as good or supe-
rior producers, were hampered by injury or other ex-
tenuating circumstances; and the third was a new em-
ployee, who the branch manager had said would be
given more time to meet Respondent's standards.
It is further strange that, according to Respondent's
own account, having delayed these terminations for 9
days, Respondent nevertheless felt impelled to discharge
its entire sales force at one stroke on the day Respondent
learned that they had joined the Union, even though Re-
spondent had no one ready to replace them.'I I would
16 Respondent says that it decided on May 14 to discharge the three
routemen on May 22. But on that date it had only one replacement who
promised to come to work on June 1. On Saturday, May 23, Respondent
first contacted Manpower for temporary help.
90
SAFETY-KLEEN CORPORATION
not expect such conduct from an organization like Re-
spondent's, so strongly geared to sales and service.
Even though it is stated that Respondent's branch
manager had decided on May 14, at the regional manag-
er's suggestion, to fire the three routemen on May 22,
the record shows that the branch manager, in the week
prior to May 22, engaged in conduct quite inconsistent
with an intention to let these three salesmen go on that
date.
However, there is no getting around the fact that not
only did the branch manager and the regional manager
testify that they decided on May 14 to discharge the
three salesmen on May 22, but also both of them and the
regional manager's superior testified that, by May 18, the
regional manager had confirmed this in writing by a
memo in which he recommended that the branch man-
ager "seriously consider replacing these three men" as of
May 22. While I might be inclined, on this record, to dis-
credit the branch manager, I have no basis for discredit-
ing the regional manager and his superior. I therefore
find that the memo is genuine and antedates the Union's
request for recognition.
This leaves then only one possibility that I can see,
that notwithstanding the memo, the branch manager
would not have fired the sales force on May 22 except
for the fact that the Union's telephone call requesting
recognition came in that day. There is some evidence
that would support that proposition, as I have noted, but
not enough, in my opinion, to justify a finding that the
discharge of Vanasdale, Milheim, and Padden violated
Section 8(aX1) and (3) of the Act.
In the absence of any other evidence of bad faith on
Respondent's part at this branch, I also find that Re-
spondent did not violate Section 8(a)(5) by failing and re-
fusing to recognize and bargain with Local 1 as the rep-
resentative of the routemen at the Youngstown Branch.
In the circumstances, I shall recommend the dismissal
of the allegations that Respondent violated Section
8(aXl), (3), and (5) in Case 8-CA-14876.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 407 and Local I are each a labor organization
within the meaning of Section 2(5) of the Act.
3. By coercively interrogating employees concerning
their union activities, Respondent violated Section 8(a)(l)
of the Act.
4. By discharging Thomas E. Foster because of his
support of Local 407, and activities on its behalf, Re-
spondent violated Section 8(a)3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has engaged in
and is engaging in unfair labor practices in violation of
Section 8(a)(1) and (3) of the Act, it will be recommend-
ed that Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the poli-
cies of the Act.
Having found that Respondent discriminated against
Thomas E. Foster in violation of the Act, it will be rec-
ommended that Respondent offer Thomas E. Foster im-
mediate and full reinstatement to his former position or,
if that position no longer exists, to a substantially equiva-
lent position at its Cleveland, Ohio, branch, without prej-
udice to his seniority or other rights and benefits, and
make him whole for any loss of pay or benefits which he
may have suffered as a result of the discrimination
against him by payment to him of a sum of money equal
to that he would have earned as wages and other bene-
fits from the date of his termination to the date of his re-
instatement, less his net interim earnings during that
period, and interest thereon, to be computed in the
manner prescribed in F W Woolworth Company, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977). See, generally, Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I issue the following recommended:
ORDER 7
The Respondent, Safety-Kleen Corporation, Warrens-
ville Heights and Niles, Ohio, its officers, agents, succes-
sors, and assigns, shall:
I. Cease and desist from:
(a) Discouraging membership in or activities on behalf
of a labor organization by discriminating in regard to
hire or tenure of employment of employees, or in regard
to any term or condition of employment.
(b) Coercively interrogating employees concerning ac-
tivities on behalf of or support of a labor organization.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them under Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer Thomas E. Foster immediate and full rein-
statement to his former position or, if that position no
longer exists, to a substantially equivalent position at Re-
spondent's Cleveland Branch, and make him whole for
any loss of earnings or benefits he may have suffered by
reason of the discrimination against him, in accordance
with the provisions set forth in the section hereinabove
entitled "The Remedy."
(b) Expunge from its files any reference to the dis-
charge of Thomas E. Foster on September 2, 1980, and
notify him in writing that this has been done and that
evidence of this unlawful discharge will not be used as a
basis for future personnel actions against him.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
" In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
91
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cards, personnel records and reports, and all other
records necessary to effectuate the Order herein.
(d) Post at its Warrensville, Ohio, branch, also known
as the Cleveland Branch, copies of the attached notice
marked "Appendix."'8 Copies of the notice, on forms
provided by the Regional Director for Region 8, after
being duly signed by Respondent's authorized repre-
sentative, shall be posted by Respondent immediately
I8 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
upon receipt thereof, and be maintained for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director for Region 8, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has'taken to comply herewith.
IT IS FURTHER ORDERED that the complaint in Case 8-
CA-14876 be and it hereby is dismissed as to alleged vio-
lations of the Act not found hereinabove in this Deci-
sion.
92