Safety Kleen Oil Services

National Labor Relations Board - Board Decisions

Aug 12, 1992

308 N.L.R.B. 208 (N.L.R.B. 1992)

208
308 NLRB No. 38
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.
In sec. III, par. 29 of the judge’s decision, he stated that employee
Ronald Mills had to wait at Hitchcock to have his oil offloaded from
6 p.m. until 1 a.m.; in fact Mills testified that he worked from 6
a.m. until 1 a.m. We correct this error.
2 All dates are in 1990 unless otherwise indicated.
3 The name of the Union has been changed to reflect the new offi-
cial name of the International Union.
Safety Kleen Oil Services, Inc., a wholly-owned sub-
sidiary of Safety Kleen Corp. and Daniel
Tamucci and John Fisher and David Jackson.
Cases 22–CA–16922, 22–CA–16984, and 22–CA–
17081
August 12, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On December 23, 1991, Administrative Law Judge
Joel P. Biblowitz issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed cross-exceptions and a sup-
porting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified and to adopt the recommended
Order as modified.
1. The judge found, and we agree, that the Respond-
ent violated Section 8(a)(1) of the Act by promising to
keep its Linden, New Jersey facility in operation if the
employees rejected the Union in an upcoming Board
election. The General Counsel has excepted to the
judge’s failure to find that the Respondent also vio-
lated Section 8(a)(1) by threatening employees with
discharge for engaging in protected concerted activities
and by soliciting employee complaints and promising
to remedy them. We find merit in the General Coun-
sel’s exceptions.
a. The threat. The Respondent is engaged in the col-
lection and recycling of hazardous waste materials.
The Respondent’s drivers transport the waste oil and
are paid a base salary plus a commission based on the
amount of oil collected. In January 1990,2 the Re-
spondent announced to its drivers that they would have
to charge customers 5 cents per gallon to collect their
oil. A few weeks later, the Respondent informed the
drivers that beginning January 29, they must test for
halogen at each pickup and charge the customer for the
cost of the test. The drivers complained to Supervisor
Anton Tantalos that they felt these changes would turn
away customers and result in decreased commissions.
On January 29, the day the testing requirement was
to go into effect, all the drivers called in sick. That
same day, the drivers met with a representative of
Local 575, Automatic Sales, Servicemen and Allied
Workers, a/w International Brotherhood of Teamsters,
AFL–CIO3 (the Union) and each signed a union card.
Later that day, employee Daniel Tamucci informed
Tantalos that the drivers had talked to a union rep-
resentative, signed union cards, and decided to seek
union representation. Tantalos reported this conversa-
tion to his supervisor, Gary Farrar. Farrar responded
that the Respondent would never put up with ‘‘having
a union vote come in’’ and that all the drivers would
be fired before the Union came in.
Farrar arranged a meeting with the drivers for the
following day. Farrar, Vice President of Personnel Bob
Burian, and Personnel Manager Kevin McKenzie met
Tantalos at the Linden facility prior to meeting with
the employees. Tantalos told them that all the drivers
had signed union cards and were seeking union rep-
resentation.
Six employees testified about the meeting and gave
similar accounts of what was said. Burian told the
drivers that he knew the drivers had ‘‘pulled a
workstop’’ and that he knew about the Union. He stat-
ed that there was no way he would agree to having a
union in Safety Kleen. Burian then said that they were
‘‘playing hardball with the big boys,’’ and that he
would ‘‘close them down in a minute.’’ He added that
if they did not like what was happening with the Com-
pany, he could tear up their contracts and they could
go work for another oil collection company. The driv-
ers also testified that they told Burian about their prob-
lems with the testing requirement and the nickel
charge, and that he promised to provide training on the
halogen testing and guaranteed the employees that they
would be paid 90 percent of their commission.
Burian testified that he opened the meeting by ask-
ing the drivers where they were the previous day and
by stating that he did not believe they were sick. He
then stated, ‘‘You obviously have some major com-
plaints or concerns, otherwise I don’t believe you were
sick. I believe you all took off, and you did it
concertedly.’’ When the drivers said that they were
sick, Burian said that ‘‘if you want me to sit down and
listen to your problems you guys are going to have to
be big boys.’’ Burian testified that he chastised Super-
visors Farrar and Tantalos in front of the drivers, ask-
ing them ‘‘how the hell could they be running a busi-
ness and not listening to employees, because I felt that
their complaints were legitimate.’’
209SAFETY KLEEN OIL SERVICES
4 Tantalos, whom the judge found to be an articulate and credible
witness, testified that he and Farrar met with Burian prior to meeting
with the drivers and informed him that the drivers had signed union
cards. While Burian testified that he was unaware that the employees
had contacted the Union as of the January 30 meeting, the judge
found that Burian was not ‘‘a particularly credible or convincing
witness.’’
5 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
6 In its brief, the Respondent does not appear to dispute this find-
ing.
The drivers who attended the meeting were sus-
pended for the day by Burian and were not paid for
that day or the day of the sickout.
Although the judge agreed with the General Counsel
that the sickout was to protest the change in working
conditions, he did not find that the threat to ‘‘close
them down in a minute’’ violated Section 8(a)(1) be-
cause, in the judge’s view, the threat referred to their
sickout and the fact that he knew they were not sick.
The judge found that this statement did not rise to the
level of an 8(a)(1) violation. We disagree.
The Board has held that an employer’s threat to dis-
charge employees if they engage in a strike or other
protected work stoppage violates Section 8(a)(1) of the
Act. Robertson Industries, 216 NLRB 361 (1975),
enfd. 560 F.2d 396 (9th Cir. 1976). The General Coun-
sel argues that the Respondent’s threat following the
sickout was aimed at discouraging protected concerted
activity. We agree.
The Board has found a sickout to be protected con-
certed activity in those cases where there is evidence
that the employer knew or had reason to know that the
employees were not really sick, but were engaged in
a work stoppage to protest their working conditions.
See Toledo Commutator, 180 NLRB 973, 977–978
(1970) (employer was aware that employees who left
the facility were engaging in a group protest over the
lack of response to their previous complaints); Citizens
Trust Bank, 206 NLRB 320, 323 (1973) (employer
knew or had grounds for the belief that the employees
were dissatisfied with their wages and were likely to
take further concerted action).
Here, Burian acknowledged at the January 30 meet-
ing that he knew the employees were not sick and that
he was aware that they were acting concertedly to pro-
test their working conditions. The drivers told Burian
their concerns about the testing and the 5-cent charge
and he acknowledged that these were legitimate com-
plaints. Because the Respondent knew that the sickout
was to protest the changes in the drivers’ working con-
ditions, we find that his threat could reasonably be un-
derstood as a threat to penalize protected concerted ac-
tivity. Accordingly, Burian’s threat to ‘‘close them
down in a minute’’ if they engage in such protected
conduct violated Section 8(a)(1) of the Act.
b. Solicitations of grievances and promises to rem-
edy them. We also agree with the General Counsel that
the Respondent violated Section 8(a)(1) by soliciting
grievances and promising to remedy them. The judge
failed to discuss this allegation. The drivers, whom the
judge found ‘‘generally, to be credible witnesses,’’ tes-
tified that at an employee meeting on the day after the
sickout Burian stated that it was obvious that the em-
ployees had major complaints, and he asked what they
were. The employees told him about the 5-cent charge
and testing requirements. Burian stated that these were
legitimate complaints and should have been dealt with
sooner. At the end of the meeting, Burian promised to
provide training and a 90-percent commission guaran-
tee. The drivers further testified that at that meeting
Burian also stated that he knew that the drivers had
gone to the Union and there was no way he would
agree to have a union represent them.4 Thus, we find
that at the time that Burian solicited the employees’
grievances and promised to remedy them, he was
aware that the employees had contacted a union.
It is well settled that an employer interferes with the
Section 7 rights of employees by soliciting employee
grievances and promising to remedy them during a
union organizational campaign. Nissan Research &
Development, 296 NLRB 598, 610 (1989). Accord-
ingly, we find that the Respondent violated Section
8(a)(1) by soliciting employee complaints and promis-
ing to remedy them.
2. For the reasons stated below, we adopt the
judge’s finding that the Respondent violated Section
8(a)(3) and (1) of the Act by discharging Robert Ott.
On May 3, the Respondent suspended Ott, allegedly
for being absent from work for 7 days in 1990, for
collecting a load of oil containing 50-percent water on
April 23, and for causing $250 in damage in an auto-
mobile accident on April 27. On May 11, the Respond-
ent informed Ott that his performance was ‘‘inad-
equate’’ and that he was terminated. Farrar testified
that it was costing the Respondent too much to keep
Ott employed.
The judge found, and we agree, that under Wright
Line5 the General Counsel established a prima facie
case that Ott’s union activity was a motivating factor
in the Respondent’s decision to discharge him.6 In
finding that the Respondent failed to meet its burden
under Wright Line to show that it would have dis-
charged Ott even in the absence of the employee’s
union activity, the judge stated that while the asserted
reasons for the discharge ‘‘would normally be grounds
for termination,’’ he was convinced otherwise. In
agreeing with the judge that the Respondent failed to
rebut the General Counsel’s prima facie case, we do
not rely on that statement. Rather, we find that the Re-
spondent’s asserted reasons for discharging Ott in-
volved conduct of a sort that the Respondent had not
210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
previously treated as grounds for discharge and that the
Respondent therefore treated Ott in a disparate manner.
As to the 50-percent water pickup, Ott testified that
he had no way of disputing the amount of water in that
load, but that the Respondent could deduct the amount
of water from his total gallons in determining his earn-
ings, as had been done in the past. Ott testified that
he picked up three loads on the day the water content
was found to be high, and that the largest was at Rucci
Oil. Ott testified that he tested this waste oil as it was
going into the truck and found nothing wrong. The
record indicates that other drivers who collected loads
containing over 50 percent water were never dis-
ciplined as a result, and that Ott was not warned prior
to his suspension that his load on that day had an un-
acceptably high water percentage.
As to the accident, Ott testified that he was involved
in two accidents while driving for the Respondent and
in neither case was he warned that this conduct could
result in termination. Most significantly, the record
shows that other employees have been in similar acci-
dents and not been as severely disciplined. Jackson tes-
tified that he was in an accident in 1989 which re-
sulted in $700 worth of damage. He was suspended for
3 days without pay. Davis testified that he drove into
a display and planter at Goodyear, causing $150 in
damage, and was not disciplined. Tantalos testified that
the only driver to be discharged for his driving record
was involved in an oil spill and, on a separate occa-
sion, a five-car accident that resulted in serious bodily
injury and totally damaged cars.
As to his absenteeism, the judge found that Ott was
unsure whether he was absent 7 days in 1990, but that
he could have been. Ott testified that he was never
warned by the Respondent that his absenteeism was a
problem. Other employees with a record of absentee-
ism were not discharged or given as severe discipline.
Fisher testified that he was absent 7 days in 1990 and
late on one occasion, and was only given a reprimand.
The record shows that Fisher was also late for work
several days in November 1989 for which he was sus-
pended 1 day.
The record indicates that Ott was treated disparately
from other employees who had similar work-related
deficiencies. Thus, we find that the Respondent does
not normally treat the asserted problems as grounds for
discharge. Therefore, we conclude that the Respondent
has not established that it would have discharged Ott
in the absence of his union activities. Accordingly, we
agree with the judge that the Respondent violated Sec-
tion 8(a)(3) and (1) by its treatment of Ott.
AMENDED CONCLUSIONS OF LAW
Insert the following as Conclusions of Law 4 and 5
and renumber the subsequent paragraphs.
‘‘4. The Respondent violated Section 8(a)(1) by
threatening employees with discharge for engaging in
protected concerted activities.
‘‘5. The Respondent violated Section 8(a)(1) by so-
liciting employee complaints and grievances and prom-
ising to remedy them.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Safety
Kleen Oil Services, Inc., a wholly-owned subsidiary of
Safety Kleen Corp., Linden, New Jersey, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Promising to keep a facility open if the em-
ployees withdraw their support from the Union.’’
2. Insert the following as paragraphs 1(b) and (c)
and reletter the subsequent paragraphs.
‘‘(b) Threatening employees with discharge for en-
gaging in protected concerted activity.
‘‘(c) Soliciting employee complaints and grievances,
and promising to remedy them.’’
3. 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 promise to keep the Linden facility
open in exchange for your withdrawing support from
Local 575, Automatic Sales, Servicemen and Allied
Workers, a/w International Brotherhood of Teamsters,
AFL–CIO or any other labor organization.
WE WILL NOT threaten employees with discharge for
engaging in protected concerted activity.
WE WILL NOT solicit your complaints and griev-
ances, and promise to remedy them.
WE WILL NOT discharge, constructively discharge,
close a facility, or otherwise discriminate against you
because of your membership in, or activities on behalf
of, the Union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer employees Daniel Graham, John
Szpilka, Robert Ott, David Jackson, John Fisher,
Emanuel Davis, and Ronald Mills immediate and full
reinstatement to their former jobs or, if those positions
211SAFETY KLEEN OIL SERVICES
1 Unless indicated otherwise, all dates referred to herein relate to
year 1990.
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights
or privileges previously enjoyed and WE WILL make
them whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them
with interest.
WE WILL remove from our company records any
reference to the unlawful discharges and constructive
discharges of the above-named persons, and notify
each of them in writing that this has been done and
that the unlawful discharge will not be used against
them in any way.
SAFETY KLEEN OIL SERVICES, INC., A
WHOLLY-OWNED SUBSIDIARY OF SAFETY
KLEEN CORP.
Tracy Galligan, Esq., for the General Counsel.
Richard J. Delello, Esq. and Steven S. Glassman, Esq.
(Grotta, Glassman & Hoffman, P.A.), for the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me in Newark, New Jersey, on 5 hearing days
commencing April 22, 1991, and concluding on June 19,
1991. The second amended complaint, which issued on Janu-
ary 2, 1991, was based on unfair labor practice charge, and
an amended charge, filed by Daniel Tamucci on April 5 and
10, 1990,1 John Fisher on May 4 and David Jackson on June
15. The complaint alleges that Safety Kleen Oil Services,
Inc., a wholly owned subsidiary of Safety Kleen Corp. (Re-
spondent), violated Section 8(a)(1) of the National Labor Re-
lations Act by impliedly threatening its employees with dis-
charge for engaging in union or other protected concerted ac-
tivities, solicited employee complaints and grievances, and
promised its employees improved terms and conditions of
employment. The complaint also alleges that Respondent
threatened its employees with unspecified reprisals because
of their membership in, and activities on behalf of, Local
575, Automatic Sales, Servicemen and Allied Workers, a/w
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO (the Union),
and promised its employees that their compensation would
not be reduced, as had previously been announced, and that
their terms and conditions of employment would improve if
they rejected the Union as their collective-bargaining rep-
resentative. The complaint further alleges that Respondent
violated Section 8(a)(3) of the Act by discharging Daniel
Graham and John Szpilka on April 5, Robert Ott on May 11,
and David Jackson on June 5. It is further alleged that Re-
spondent violated Section 8(a)(3) of the Act by terminating
its business operation at its Linden, New Jersey facility on
about May 7 and imposing more onerous working conditions
on John Fisher, Emanuel Davis, and Ronald Mills by requir-
ing them to travel a longer distance in the performance of
their work, which resulted in the constructive discharge of
these employees on about May 9 (for Mills and Fisher) and
June 6 (for Davis).
On the entire record, including the briefs received and my
observation of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent maintains a facility in Linden, New Jersey (the
Linden facility), where it is engaged in the business of col-
lecting waste oil. During 1990 Respondent purchased and re-
ceived at the Linden facility goods and materials valued in
excess of $50,000 directly from suppliers located outside the
State of New Jersey. Respondent admits, and I find, that it
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE FACTS
There are four 8(a)(1) allegations. The first two allegations
involve a speech that Robert Burian, the senior Vice Presi-
dent of Administration and human resources for Safety Kleen
Corp. (SKC), made to Respondent’s drivers (also called sales
services representatives) at a meeting on January 30; the
complaint incorrectly alleges that this meeting took place on
February 6. It is also alleged that on about March 20 Burian
threatened these employees with unspecified reprisals be-
cause of their union activities and that on April 3 he prom-
ised that their compensation would not be reduced as had
previously been announced and that their terms and condi-
tions of employment would be improved if they rejected the
Union as their collective-bargaining representative. The com-
plaint further alleges that Respondent unlawfully discharged
employees Daniel Graham and John Szpilka on April 5; Dan-
iel Tamucci was also discharged on that day, but as this mat-
ter was satisfactorily resolved by the parties, the allegation
regarding his discharge was withdrawn. The complaint also
alleges that Respondent unlawfully discharged Robert Ott (on
about May 11) and David Jackson (on about June 5), and
constructively discharged John Fisher and Ronald Mills (on
about May 9) and Emanuel Davis (on about June 6).
SKC is engaged in the collection and recycling of hazard-
ous waste materials in 49 States. The basic operational level
is the branch office, headed by a branch manager, and there
are 164 of these throughout the country. This system works
its way up to regions, divisions, and SKC’s principal office
in Elgin, Illinois. SKC operates six lines of business: parts
washing, paint refinishing, dry cleaning, fluid recovery, anti-
freeze collection and waste oil collection. Not all branches
have all of these operations. The employees involved here
are involved only in the last of these business operations.
SKC became involved in this business principally through
the purchase and acquisition of existing companies, some
large, some small. An example of the former was its pur-
chase of Breslube, Inc., a Canadian company, in 1987, by
Respondent. This was the start of this business and was fol-
lowed by the purchase of numerous smaller waste oil collec-
212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion businesses, including County Waste Oil, which was
owned by Tamucci. Respondent’s drivers drive their trucks
around a specified area soliciting facilities such as gas sta-
tions, auto dealerships, and anybody else with used oil. They
then transfer the oil to their truck and, usually, at the end
of the day, offload the oil at a facility of Respondent or an-
other company, similarly engaged. It would be the latter situ-
ation if Respondent had previously determined to sell the
waste oil to a unrelated company, rather than retain it in one
of its tanks. The principal reasons for Respondent to sell the
oil to another company are that it lacks storage tanks in the
area or that market conditions make it more profitable to sell
the waste oil. Subsequently this waste oil is shipped to a lo-
cation where it is recycled or rerefined and then sold.
When Respondent purchased County Waste Oil in about
June 1988, it hired Tamucci, its owner, as well as Anton
Tantalos who worked with Tamucci. Tamucci was given a
1-year employment contract, in addition to direct monetary
compensation for his company. Tamucci serviced parts of
Westchester County in New York and Fairfield County in
Connecticut; Tantalos covered other parts of Westchester
County as well as Putnam County. Initially, Tamucci parked
his truck at his home in Westchester County, did his route,
usually filling his truck, and offloaded the oil at Hitchcock
Oil, (Hitchcock) (unrelated to Respondent), in Bridgeport,
Connecticut. Tamucci testified that, at times, it took four to
six hours to offload at Hitchcock. From about October
through December 1988, Tamucci offloaded his oil onto a
rented trailer at a Ryder Truck Rental facility in Stratford,
Connecticut (adjacent to Bridgeport). The trailer then took
the oil to an SKC facility in Medina, Pennsylvania, where it
was offloaded into storage tanks. In about January 1989 Re-
spondent arranged for its drivers (including Tamucci) to off-
load their oil at Nassau Oil (Nassau) in Brooklyn, New York.
Although Nassau was unrelated to Respondent, Respondent
maintained a trailer at the Nassau facility for its drivers and
supervisors. From this time until about December 1989,
some of Respondent’s drivers offloaded their oil at Nassau.
From January through about December 1989 Tamucci left
his home, collected his oil until his truck was filled or almost
filled and then drove to Brooklyn where his truck was
offloaded at Nassau, and returned home with his truck. This
was the period of Respondent’s expansion in the area; nu-
merous drivers were hired and Tantalos was promoted from
driver to regional manager of the area.
Graham began his employ with Respondent in February
1989; he lived in Yonkers, New York, in Westchester Coun-
ty and initially covered Rockland, Orange, Sullivan and Ul-
ster Counties in New York. About 2 months later, when
Tantalos was promoted from driver to area regional manager,
Graham began to service Westchester, Putnam, and Dutchess
Counties in New York, and Danbury and Ridgefield Counties
in Connecticut. For the first two weeks of his employment,
he offloaded and left his truck overnight at Nassau; subse-
quent to that, Respondent arranged for him to park his truck
overnight at a Ryder Truck Rental lot near his home in Yon-
kers. For the next 6 months he parked at this facility with
his truck full, drove to Nassau in the morning and offloaded
his truck, did his route, parked the truck at the Ryder lot, and
drove his car home. In about December 1989, Tantalos told
him that Respondent had decided that he would no longer
park his car at Ryder (either because it wasn’t safe or legal);
from that time to the conclusion of his employment with Re-
spondent, he parked at an SKC branch in Thornwood, in
mid-Westchester County, New York. This branch did not and
does not have a waste oil collection operation. The other
change, at that time, was that he and the other drivers began
to offload at an SKC facility in Linden, New Jersey. His pro-
cedure during this period was to take his truck from the
Thornwood branch in the morning, do his route and fill his
truck (hopefully) with used oil, drive to Linden to offload
and return to the Thornwood branch where he parked his
empty truck and drove his car home. Because he and the
other drivers had to wait so long at Linden to be offloaded,
this often resulted in a 16-hour day for him. Since the drivers
are paid salary plus commission and he was not paid for the
extra time, he complained to Tantalos about this delay at
Linden. Tantalos arranged for the drivers to be paid an addi-
tional $30 a load to compensate for the delay. After about
2 weeks of offloading at Linden, (Tamucci testified that he
only offloaded there on one occasion) Tantalos hired a
‘‘jockey’’ to drive Graham and Tamucci’s trucks from the
Thornwood branch to be offloaded at Linden at night. The
procedure for both Tamucci and Graham from about Decem-
ber 1989 until they were fired on April 5, was for them to
pick up their empty truck in the morning at the Thornwood
branch, drive their route and return their full truck to the
Thornwood branch and return home. In their absence, the
jockey drove their trucks to Linden, offloaded, and returned
the trucks to the Thornwood branch where Graham and
Tamucci picked them up the next morning. Respondent paid
the jockey.
Szpilka began working for Respondent as a driver in July
1989; his route was Suffolk County, Long Island, New York.
Originally, he reported for work and offloaded at Nassau;
from about January 1 until his discharge on April 5, he re-
ported to, and offloaded at, Linden. He testified that offload-
ing at Linden could take as much as 6 hours, not including
driving. Originally, Szpilka parked his truck overnight at a
Ryder facility in Amityville, Long Island. Shortly thereafter,
Tantalos Amityville (that does not have a waste oil collection
operation) for Szpilka to park his truck overnight at the
branch. Fisher began his employ with Respondent as a driver
in September 1989; at this time, he reported for work and
offloaded his truck at Linden. His route was northern New
Jersey; he lived in Pennsylvania. His procedure from the date
he began until about May was to drive his car from his home
to Linden, where he picked up his empty truck. He took his
truck on his route, returned to Linden, did his paperwork and
left the truck to be offloaded by the employees at the facility
and he returned home in his car. Because Respondent was
operating both Linden and Nassau for offloading at the time,
Charles LoPiccolo was, generally, the supervisor at Linden
while Tantalos was at Nassau. George Green began his em-
ploy as a driver for Respondent in November 1989. Like
Fisher, he began reporting to, and offloading at, Linden, and
was supervised principally by LoPiccolo. His route was,
originally, New York City and was subsequently expanded to
include all of New York State. Davis began working for Re-
spondent as a driver in August 1989; originally, his area was
Bergen and Passaic Counties in New Jersey and Rockland
County in New York. Subsequently, Passaic County was
taken away and Orange County, New York was added. From
the time he first began until about May, he reported to the
213SAFETY KLEEN OIL SERVICES
Linden facility, took his truck, covered his route, and re-
turned his truck to Linden by 5 p.m. He left it and it was
offloaded and ready for him to take it the next morning. His
supervisors were LoPiccolo and Tantalos. Ott began working
for Respondent as a driver in July 1989; his route was, origi-
nally, Brooklyn and Queens. He was originally based at Nas-
sau, where he picked up his truck, performed his route and
returned to Nassau where his truck was offloaded while he
waited. Beginning about January 1, he reported to Linden,
where he picked up his truck in the morning, did his routes,
and returned the truck to Linden at the end of the day, where
it was offloaded in his absence. Jackson began working for
Respondent in August 1989 as a driver; the area he covered
was Morris and Hunterdon Counties in New Jersey. From the
time he began working for Respondent he reported to, and
offloaded at, Linden. He picked up his truck in the morning,
covered his route and returned to Linden where his truck was
offloaded. Tantalos and LoPiccolo were his supervisors.
Mills began working for Respondent as a driver in June
1989; he covered Union, Essex, and a part of Hudson County
in New Jersey. He worked out of Linden, where his truck
was offloaded. All of the above drivers are alleged as
discriminatees except for Tamucci (whose case was settled
prior to trial and withdrawn from the complaint) and Green.
The only other driver for Respondent during the period in
question was Noel Hann.
The events were, apparently, precipitated by two changes
Respondent instituted in the working conditions of these
drivers: the institution of a 5-cent-a-gallon charge for picking
up the used oil and a requirement that the oil be tested by
the drivers prior to receipt. When Respondent began operat-
ing in the area, in order to generate business and clientele,
it was paying its ‘‘customers’’ between 5 and 10 cents a gal-
lon for the oil it picked up. In about October or November
1989 Tantalos informed the drivers that they should stop that
practice Farrar, vice president of Respondent, told Tantalos
that the drivers would have to commence charging the cus-
tomers 5 cents a gallon for all oil taken. When he informed
the drivers of this new requirement, they were upset because
of the perceived effect this would have upon their earnings.
In addition, shortly thereafter, Respondent informed the driv-
ers that they would have to test all the oil picked up to make
sure that it did not contain water or other contaminants. The
drivers were also concerned about this, fearing that testing
would slow up their collections and require them to refuse
to accept some contaminated oil, which would also affect
their earnings. Farrar testified that Respondent instituted the
testing requirement to prevent the collection of oil with too
large a water content. Respondent, occasionally, sends its
drivers to collect water (known as a water run), but in an or-
dinary oil collection, too much water is unsatisfactory. In an
effort to alleviate the driver’s concerns about this testing re-
quirement, Respondent guaranteed the drivers 90 percent of
their usual pay during the early stages of this testing period.
The drivers were not satisfied with this. In addition to these
two changes, the drivers were also concerned about Respond-
ent’s plan to ‘‘integrate’’ them into its branch network. His-
torically, Respondent has developed new business lines and
when it was felt that they were ready, these new lines were
‘‘rolled out’’ and integrated into the branches in the area.
This meant that the employees would be supervised by the
branch manager and their salaries would be adjusted to be
consistent with the existing salaries at the branch. In about
late 1989 the drivers learned that they would be integrated
into one of SKC’s branches sometime during 1990 and they
were fearful of the affect that it would have on their pay.
In late January the drivers discussed among themselves
their dissatisfaction with the 5-cent charge and the new test-
ing requirement. With the exception of Tamucci and
Graham, they all offloaded and reported to Linden and that
is where their discussions took place. They also discussed
these concerns with Tantalos and spoke to Tamucci and
Graham over the phone about these complaints. As a result
of these discussions, the drivers engaged in a 1-day sickout
on Monday, January 29. During the prior week, all the driv-
ers (including LoPiccolo, who was a driver as well as assist-
ant manager) were discussing different possible action they
could take to protest the 5-cent charge and the testing re-
quirement. Picketing the Linden facility was discussed, but
rejected. Instead, all the drivers (except Szpilka) and
LoPiccolo met at a diner on January 29. Later that day they
met at Green’s house and met with the representatives of the
Union at a nearby diner and signed authorization cards for
the Union. All, or almost all, the drivers had called in sick
that day and late in the day. Tamucci told Tantalos that the
drivers were meeting with a representative of the Union be-
cause of their discontent with the 5-cent charge and the test-
ing requirement. Tantalos had been in contact with Farrar
throughout the day about the absence of the employees. After
hearing from Tamucci, Tantalos called Farrar. He testified
that he told him what Tamucci had said and that Farrar was
upset that they had gone to a union. Farrar told Tantalos that
he was upset with him for not being aware of what was tak-
ing place and that he thought that Tamucci was the ring-
leader and that the company would never put up with having
a union. He said: ‘‘They would all get fired before the Union
would come in.’’ He told Tantalos to call all the drivers and
tell them not to come in the following morning, but to come
in that afternoon when there would be a meeting at Linden,
and Tantalos did so. Farrar testified that in his telephone
conversations with Tantalos on that day, Tantalos never men-
tioned the Union and he never said that he thought that
Tamucci was the ringleader or that the company would never
put up with a union and all the drivers would be fired first.
Burian testified that when he learned of the sickout on Janu-
ary 29, he arranged to go to the Linden facility the following
day, and he did so. He also arranged for Farrar to meet him
there.
The meeting with the employees was scheduled for about
2 p.m. on Tuesday, January 30. Tantalos testified that
Burian, Farrar, and Kevin McKenzie, employee relations
manager for SKC, arrived earlier in the day to meet with
him. They met at the Linden facility and went out to lunch
while discussing the situation. Tantalos’ testimony regarding
these discussions is far from a model of clarity. On direct
examination, he testified: ‘‘I think they found out at that
point that they all signed union cards and they were very,
very upset . . . .’’ When asked how they knew, he testified:
‘‘I guess I had told them that . . . .’’ In answer to questions
on cross-examination, he testified that they told him to be
careful in what he said to the drivers, but they did not elabo-
rate. He also testified that earlier that day, Farrar told him
that if he had known that the drivers had signed union cards,
he would have fired them. Farrar testified that he never made
such a statement. Burian testified that at the lunch meeting
214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 He testified: ‘‘come hell or high water, union, no union, what-
ever.’’ Then he added: ‘‘This was at subsequent meetings.’’
they reviewed the drivers’ complaints and he criticized Farrar
for not listening to the drivers because they had valid com-
plaints. They agreed that they would rectify the complaints,
principally by proper training for testing. He testified that he
never said that he would fire the drivers if he had known that
they signed union cards; in fact, he didn’t yet know of their
union activity. The parties stipulated that the Union filed a
petition to represent these employees on February 5; Re-
spondent alleges that it didn’t learn of the Union until it re-
ceived this petition a few days later.
There is substantial testimony, often conflicting, about
what was said at this January 30 meeting with the drivers.
Tamucci and Graham did not attend. Fisher testified that
Burian said that he knew they engaged in a work stoppage
and he knew that they weren’t sick. He said that they were
playing in ‘‘big boys school. It’s hard ball.’’ He said that he
would close them down in a minute. He testified that Burian
knew that they went to the Union or he assumed that he
knew. Burian asked why they engaged in the work stoppage
and the employees told him about the 5-cent charge and the
testing requirement and how it affected their pay. He told
them that they wouldn’t have to test and that he would dis-
cuss it further with Farrar. Green testified that Burian said:
‘‘We are all big boys and we are playing hard ball here.’’
He also said that they shouldn’t all get sick again and that
he knew that they went to the Union. Szpilka testified that
Burian said that he knew that they went to the Union and
‘‘now you are playing hardball with the big boys.’’ He said
that there were no unions at SKC and there was no way that
he would agree to have a union represent them. Davis testi-
fied that Burian told them that they had engaged in a strike;
he knew that they weren’t sick. He said: ‘‘You are now play-
ing in big boy’s school. If you want to play hard ball, you
are messing with the wrong person.’’ He then reminded the
drivers that they had all signed employment contracts with
Respondent when they began their employ. He offered to
tear up those contracts for any driver who wanted to go to
work for a different company. Ott testified that Burian
opened the meeting by saying: ‘‘This is bullshit. We’re in
big boy school now and this has got to stop.’’ Jackson testi-
fied that Burian described their sickout as ‘‘a bunch of
bullshit’’ and that he knew that they weren’t sick. He said
that if the drivers ever take off again like they did on the
prior day they would be fired. Mills testified that Burian
opened the meeting saying: ‘‘You are in big boys school
now’’ and told them that there were no unions at SKC and
that he wouldn’t stand for one representing them. He also
said: ‘‘We know that you guys went to a union,’’ but the
employees denied it. The employees complained about the 5-
cent charge and the testing requirement; Burian agreed that
they should have received some training on the testing before
being required to do it, and he asked them to try it for a
month and he would get them some training. He also told
them that Respondent would guarantee them 90 percent of
their commission to compensate them for the charge and the
testing.
Tantalos testified that Burian said that he was there to lis-
ten to their complaints and that he had previously been un-
aware of the 5-cent charge and the testing requirement and
that he would see what he could do to straighten out the situ-
ation. He also told the drivers that they didn’t need a union,
that SKC didn’t have any union representing its employees
and that they wouldn’t tolerate a union for the drivers.
Burian testified that when this meeting took place he had no
idea that the employees had gone to a union and it was not
mentioned at the meeting. He arrived before Farrar and told
the employees that he believed that they were not sick the
prior day. He said: ‘‘I came down here because there is a
problem. If you want me to sit down and listen to your prob-
lems you guys are going to have to be big boys.’’ He asked
what the problems were. When they told him of their griev-
ances he said that they had legitimate complaints, but used
the wrong method of objecting to the problems. He told them
that he and Farrar would arrange for them to be properly
trained for testing. He also told them that they had no valid
complaint about the 5-cent charge; other area charge three or
four times as much for oil pickups. Finally, he told them that
they would be integrated into the branch network ‘‘come hell
or high water.’’2 He also informed them that he was angry
with Farrar and Tantalos for not communicating properly
with the drivers regarding their complaints. Later that day a
notice was posted on the bulletin board of Respondent’s trail-
er at Linden, stating that the drivers would receive a 90-per-
cent commission guarantee and they would receive training
in the near future. Farrar testified that Tantalos picked him
up at the airport that day and he arrived at the meeting while
Burian was speaking. There was no mention of a union and
they told the drivers that they would provide them with the
proper training and a 90-percent guarantee on their commis-
sion.
The first of these training sessions for the drivers took
place at the Raddison Hotel in Newark on February 14; al-
though there was some testimony regarding this meeting,
there are no allegations that anything said at this meeting is
violative of the Act and so it will not be discussed further.
Tantalos testified that sometime in February, he met with
Farrar at Farrar’s office in Breslau, Canada. He testified that
Farrar asked him who was the ringleader for the Union and
who he felt was in favor of the Union. Tantalos told him that
a lot of the drivers left other jobs to take drivers’ positions
with Respondent with the understanding that they would be
earning a good salary, but were later told that they would be
integrated into the branches and wouldn’t make as much in
the future and they were unhappy about it. Farrar said that
‘‘he couldn’t wait’’ until Respondent was integrated into
SKC so that it would be ‘‘out of his hair.’’ Farrar asked
Tantalos if he thought that Tamucci was the ringleader for
the Union and Tantalos said that he didn’t think so, he
thought that it was a group decision of most of the drivers.
Farrar called Tamucci an ‘‘asshole’’ for risking the loss of
his $80,000 earnings. Farrar then named all the drivers and
asked Tantalos how each would vote in the Board election.
Tantalos said that he thought that all the drivers, except
Hann and Green, would vote in favor of the Union.
There was also testimony about a meeting that Burian held
with the drivers at the Linden trailer about 2 days prior to
the election. Fisher testified that, at this meeting, Burian said
that he would do everything in his power to keep the Union
out: ‘‘He would not stand for it.’’ He then testified: ‘‘They
tried making us promises to keep it out.’’ The promise was
that the drivers would remain at Linden for 1 more year
215SAFETY KLEEN OIL SERVICES
‘‘guaranteed.’’ When one of the drivers asked him to put it
in writing, he refused. Burian also said something about sala-
ries, but Fisher could not remember what it was. Davis testi-
fied that Burian said that if they didn’t vote the Union in,
they wouldn’t be integrated into the branches and their sala-
ries would not be affected until January 1, 1991. One of the
employees asked him to put this guarantee in writing and he
said: ‘‘Absolutely not.’’ He said that a union was the worst
thing that could happen and they wouldn’t tolerate it. Mills
testified that Burian said that if they didn’t vote in the Union
he would keep the Linden facility in operation. The balance
of his testimony about this meeting was imprecise; all he
could recollect was Burian saying that he wouldn’t put up
with a union and ‘‘would close us down.’’ He could not be
any more specific. Burian testified that he spoke to the driv-
ers (except for Tamucci, Graham, and Szpilka) at the Linden
trailer on April 3. He told them to give integration a chance;
that SKC’s other employees who were rolled out into
branches were happy with the operation. ‘‘But I said, why
don’t you just give it a chance and see how it goes.’’ He
made no promises to them that they would remain at Linden
and wouldn’t be integrated until January 1991; they asked for
such a guarantee, but he refused to give it. He did tell them
that he would do everything in his power to keep the Union
out.
Burian testified that upon receiving the Union’s petition,
he determined that the unit requested (apparently, the Linden
drivers) was not appropriate for a number of reasons. Prin-
cipally, the Linden facility was not a branch, but was ‘‘an
expedient way to enter the market place in New York before
integration.’’ In addition, these employees would soon be in-
tegrated into a branch of Respondent. Finally, Tamucci,
Graham, and Szpilka were not in this unit since they did not
park at the facility. Counsel for Respondent, by letter dated
March 8, wrote to the Board’s Regional Office requesting
that the petition be dismissed because Respondent ‘‘will
eliminate its oil collection activities out of Linden and either
transfer or lay off all affected oil collection drivers.’’ At-
tached documents are alleged to establish that some of the
drivers would be laid off while others would be offered posi-
tions with SKC at locations throughout the region. At the
Board conference the parties stipulated to an election to be
conducted on April 5. The election agreement is not in evi-
dence so I do not know if the unit description is any more
specific than the Linden drivers. When asked on cross-exam-
ination why he entered into this agreement rather than con-
testing the unit which he alleges is inappropriate, Burian tes-
tified: ‘‘We didn’t think going through the whole hearing
process and probably go up to the full Board . . . was going
to be worth all the legal fees involved.’’
The Board election took place on April 5; the ballots of
Tamucci, Graham, and Szpilka were challenged because they
were not on the eligibility list prepared by the Respondent.
Tamucci testified that a week prior to the election he learned
that Respondent had omitted his name from the eligibility
list. The election result was five in favor of the Union, two
against and, apparently, five challenged ballots, although this
is not entirely clear from the record, nor is it clear who,
other than Tamucci, Graham, and Szpilka, would have been
challenged. Tantalos testified that minutes after the election
results were announced Burian approached him and told him
to fire Tamucci, Graham, and Szpilka. Tantalos asked Burian
what reason he should give them for being terminated and
Burian said that he should tell them that they were ending
the oil collection operations out of the Thornwood and Am-
ityville branches where they parked their trucks. Tantalos tes-
tified that he was surprised at this decision because Tamucci
and Graham were the best producers (they collected the most
oil in the area and, possibly, in the east coast). He was also
previously unaware that Respondent was going to cease its
oil collections out of these branches. As directed, he in-
formed Tamucci, Graham, and Szpilka that they were being
terminated and that was their last day of employment with
Respondent. For, at least the next few months (Tantalos was,
fired about a month later), their routes were covered by
Tantalos (who hadn’t done a route himself for almost a
year), Fisher, Hann, Ott, and Joe Kriscie, one of Respond-
ent’s managers from North Carolina, who came to the area
to assist them. Tantalos testified, further, that subsequent to
his discharge he met one of Respondent’s oil collection driv-
ers who was working out of the Branford, Connecticut
branch. The driver told him that he lived in Briarcliff, West-
chester County, New York. When Tantalos remarked that he
had a long haul, the driver (whose name Tantalos could not
remember) told him that ‘‘once in a while’’ he parked at the
Thornwood branch. He did not say whether he had authoriza-
tion to park there.
Tamucci, Graham, and Szpilka agree with this testimony
of Tantalos; shortly after the election results were announced
Tantalos told them that they were being terminated. Tamucci
said that Tantalos told him that the reason he was given was
that the trucks could not park at the branches because it was
not environmentally safe. Tamucci testified that this was
‘‘absolutely bull’’; he testified that trucks belonging to the
Thornwood branch were parked overnight at the branch even
though they contained contaminated solvents, the same as his
truck. He testified that he parked his truck inside the fenced
in area at the Thornwood branch when there was space avail-
able. If there was no space available, he parked outside the
fence, on the street. Graham testified that after Tantalos told
them that they were being terminated, Szpilka asked why,
and he said that it was environmentally unsound to park the
trucks at the branches. That was the first time he heard that.
He testified, like Tamucci, that he parked inside the fenced
in area when space was available at the branch. About half
the time there was no space available and he parked in a
driveway at the branch. By letters dated April 6, Respondent
informed Tamucci, Graham, and Szpilka that, pursuant to
their employment agreements with Respondent (the letter
states that Tamucci’s agreement is dated June 16, 1988; no
dates are given for the other two agreements), their employ-
ment with Respondent will terminate on May 17 (for
Tamucci and Graham) and July 23 (for Szpilka, presumably
because his agreement was executed on July 23, 1989, and
was for a 1-year period). The letter further states that they
have no obligation to perform future services for Respondent
and that they are not to come to the premises of Respondent
or SKC and that their paychecks for the remaining period
would be mailed to them. The letter concludes by reminding
them of the noncompetition restriction contained in their em-
ployment contracts (within a 100-mile radius of New York
City for 2 years). The letter gives no reason for their dis-
charge.
216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Burian testified that these employees were terminated for
a number of reasons: Respondent had been unable to obtain
permits for the Thornwood and Amityville branches to con-
struct and maintain tanks for the storage of waste oil and Re-
spondent had decided that waste oil collection would not be
rolled out into these two branches. He further testified: ‘‘We
had too many drivers at that time anyway,’’ and that whereas
all the other drivers were based out of Linden, Tamucci,
Graham, and Szpilka parked at these branches, but were not
managed by the branch managers: ‘‘We were very concerned
as to who was overseeing these three guys . . . We were
very apprehensive about having three people floating and not
having supervision.’’ Between the filing of the petition and
the Board conference he decided that they would be termi-
nated for these reasons. He testified that at the Board’s infor-
mal conference he informed the Union and the Board agent
of this decision. He waited until after the election to fire
them for labor relations reasons: if he fired them prior to the
election the other employees would have felt that they had
no job security and would probably have voted for the
Union. Farrar testified that he learned from Burian that the
trucks would no longer be parking at the Thornwood and
Amityville branches. He testified: ‘‘probably most of the
pressure [for these terminations] came from our environ-
mental department.’’ The principal reason was that they were
unable to obtain permits to construct waste oil collection
tanks at these branches and they had ‘‘serious concerns . . .
relative to the security . . . . ’’ When he realized this, he
didn’t seriously consider transferring them to Linden be-
cause: ‘‘in my opinion, [they] were operating at an insuffi-
cient level of productivity . . . .’’ He felt that the existing
trucks could assume their business. He testified further that
an additional reason for terminating Tamucci was that, as
part of his agreement to sell County Waste Oil to Respond-
ent, Respondent agreed to pay him an amount in excess of
his regular earnings, and Respondent wanted to save this
amount.
Tantalos, Fisher, and Jackson each testified that Tamucci
and Graham collected the most oil of all of Respondent’s
drivers in the area. They were aware of the amounts because
each driver was required to write the amount of his daily
pickups on a bulletin board at the Linden facility.
As stated above, one of Respondent’s principal defenses
regarding the terminations of Tamucci, Graham, and Szpilka
is that they parked their trucks at the Thornwood and Amity-
ville branches of SKC, and Respondent was unable to obtain
the required permits for the construction of waste oil tanks
at these branches. It is undisputed that they parked their
trucks at these facilities for their convenience and efficiency
and had no other connection with the facilities: they were not
supervised by the branch manager and their output was not
considered production by that branch. Also as stated above,
in the past, Tantalos and Tamucci had parked their trucks
(sometimes full) at their homes. Farrar testified that Tamucci,
Graham, and Szpilka complained about the amount of driv-
ing that they had to do when they were offloading at Nassau
and the Linden facility and, as a result, Respondent decided
that as a ‘‘stop-gap measure’’ they would allow them to park
at these branches. This decision was based on Respondent’s
belief that ‘‘ultimately we would be able to have tank storage
and construction completed at these branches.’’ This turned
out not to be correct.
Ott began working for Respondent on July 25, 1989; he
offloaded at Nassau until about January 1, when he began re-
porting to, and offloading at, Linden. From that time until he
was fired in May he reported to Linden, where he left his
truck which was offloaded in his absence. On May 3 he was
told by Farrar that he was being suspended because of exces-
sive absenteeism, 50 percent water in one of his pickups and
an accident that he had with his truck. Ott told Farrar that
he had no way of disputing the amount of water present in
one of his truckloads of waste oil, but if he wished, he could
deduct the amount of water from his total gallons in deter-
mining his earnings. Farrar refused this offer. He testified
that he was never previously warned about being disciplined
for a high water percentage. By letter dated May 7, Ott was
informed that he was ‘‘hereby put on suspension, indefi-
nitely’’ for three reasons:
1) A driving accident that is described by yourself as
your fault, we are presently awaiting the police accident
report.
2) Year to date you have seven days of being absent,
which is entirely unacceptable.
3) On April 23, 1990, a load of used oil collected
by you after being tested resulted in 50% water, which
is also entirely unacceptable.
You will be notified further of your status of em-
ployment . . . .
By letter dated May 11, Respondent informed Ott that his
performance during his employment with Respondent was
‘‘inadequate,’’ and that he was terminated from employment.
Ott testified that he was involved in two accidents while
driving a truck for Respondent: the first occurred in Septem-
ber or October 1989. In that situation his truck swerved on
wet pavement and ‘‘nicked’’ a car; it was determined to be
an unavoidable accident. The other accident occurred on
April 27; in this occurrence he parked his truck at a bus stop.
Somebody parked behind him and when he attempted to
back up to exit the space, he was unable to see the car be-
hind him and he hit the front grill of the car. At the time
he was suspended there had been no definite amount of dam-
ages determined, but he testified that it couldn’t have been
in excess of $100. Jackson testified that he was involved in
an accident in September 1989 which resulted in $700 worth
of damages; he was suspended for three days without pay.
As to his absenteeism, Ott was unsure whether he was absent
seven days in 1990, but he could have been. The remaining
reason he was given for his discharge was that one of his
oil pickups on April 23 contained 50 percent water. He testi-
fied that after receiving the letter of May 7 he checked his
record which showed only three pickups on April 23; one,
Rucci Oil, was, by far, the largest pickup of the day. This
was one of Green’s customers, but he was out sick that day
and LoPiccolo assigned him to do the pickup. At this pickup
he tested the waste oil as he usually did and found nothing
unusual about the waste oil going into his truck. As to
whether his load on that day was 50 percent water, he testi-
fied that Respondent has these records, so he doesn’t know,
but it was possible. Tantalos testified that while employed by
Respondent he fired a driver who was involved in an acci-
dent. It involved five other vehicles, a few of which were to-
tally damaged, and some people went to the hospital. Farrar
217SAFETY KLEEN OIL SERVICES
testified that he remembers that Ott was absent too often
from work, had picked up a load that was 50 percent, water
and was involved in an accident for which he was at fault.
The accident report states that the estimated amount of dam-
age to the bumper guard and grill of the other vehicle was
$250. Farrar concluded from these incidents: ‘‘It was costing
us too much to keep him employed.’’
Jackson began his employ with Respondent as a driver on
August 28, 1989; he always reported to, and offloaded at,
Linden until May, when LoPiccolo told him that Respondent
was no longer collecting waste oil at Linden and that he was
to report to, and park his car and truck at, a Rollins Truck
Leasing (Rollins) facility in Newark (along with Mills) and
he was to offload his truck at a facility of Lionetti (not relat-
ed to Respondent) in Old Bridge, New Jersey, about an
hour’s drive from Rollins. This change resulted in a shorter
drive from home to pick up his truck, but additional driving
on his run. Under this procedure, he drove his car to Rollins
in the morning, did his run for the day, offloaded at Lionetti,
and when they had completed offloading his truck, he re-
turned to Rollins, left his truck in that lot, and drove his car
home. His performed his paperwork while waiting at
Lionetti, or at Rollins, where he changed into and out of his
uniform. When he needed certain documents or Respondent’s
paperwork, LoPiccolo met him at Rollins and gave it to him.
Jackson was fired on June 5; in a letter dated that day and
signed by LoPiccolo, Respondent informed him that he was
terminated immediately as ‘‘a result of your foul and abusive
language directed toward your supervisor. When I inquired
as to the relocation of your truck, your response was ‘this
is bullshit’ and subsequently hung up the telephone on me.’’
The letter also states that Jackson was given a written ‘‘prior
disciplinary notice of possible termination resulting from
abusive language towards a supervisor’’ on April 24. On that
date, LoPiccolo gave Jackson a ‘‘Disciplinary Notice.’’ This
letter states:
Please be advised that your recent failure to show up
for work on April 17, 1990 due to car trouble is unac-
ceptable. It is your responsibility to be at work punc-
tually, and failure to do so may result in your termi-
nation.
In addition on April 16, 18, 19 and 20 you took it
upon yourself to leave work early (2 to 3:00 p.m.) due
to personal reasons. When I approached you on this
subject you responded with yelling and abusive lan-
guage. Further outbursts from you may also result in
termination of employment.
As for the June 5 termination notice, Jackson testified that
LoPiccolo called him at home the prior day at about 6 a.m.
and asked him why he had not worked the prior day. Jackson
asked him what he was talking about, that he had worked
the entire prior day. LoPiccolo said that he had spoken to the
people at Rollins the prior day and they said that his truck
was there the entire day. Jackson said: ‘‘That’s bull, I
worked all day and I have receipts to prove it.’’ He testified:
‘‘I don’t say B.S. in full a lot. I mean there’s times we have
used profanity around each other, but at this particular time,
no, I did not.’’ LoPiccolo told him that from then on he was
to pick up his truck at the Rollins facility in Edison, New
Jersey, and Jackson hung up the phone. Jackson worked all
of that day as well as June 6; at the end of that day
LoPiccolo met him at Rollins in Edison and gave him the
June 5 letter. That was his last day of employment for Re-
spondent.
As stated above, the April 24 disciplinary notice refers to
his failure to appear for work on April 17 and his alleged
leaving work between 2 and 3 p.m. on April 16, 18, 19, and
20 and responding to LoPiccolo with abusive yelling when
he spoke to him about this. Jackson testified that on April
16 he informed LoPiccolo that his car was being repaired
and that Green would be driving him to work the following
day and they would be in late that morning. Both were still
reporting to the Linden facility. Green’s car would not start
on the morning of April 17 after he picked up Jackson, and
Jackson called LoPiccolo and informed him of the difficulty.
He told him that they would try to make it in and asked if
LoPiccolo had any drivers in the area who could give them
a lift to work. LoPiccolo said that he didn’t and neither Jack-
son nor Green was able to get to work that day. Green testi-
fied that his car overheated and his radiator cracked on the
day in question as he was driving Jackson to work. He never
made it to work that day and was never disciplined for the
absence: ‘‘No one ever said anything to me.’’ As to the other
allegation contained in the April 24 notice, Jackson testified
that at the beginning of April, he told LoPiccolo that he
would have to leave work a little early in the middle of April
because his children (aged 10 and 11) would be on school
vacation; he is a single parent. LoPiccolo told him that he
had no problem with that. On the 4 days in question he left
work between 3:45 and 4 p.m., not between 2 and 3 p.m.,
as alleged. Jackson testified further that when LoPiccolo
spoke to him about this subject, he said that somebody had
been watching him leave work early and had instructed him
to write him up for it. When Jackson reminded him that he
had told LoPiccolo 2 weeks earlier that he would be leaving
earlier on those days and he had said that there would be no
problem, LoPiccolo said: ‘‘I have nothing to do with it. This
is what they told me to do.’’ Jackson testified that he did not
use profanity in this conversation.
LoPiccolo testified that Jackson’s termination was precip-
itated by his request that Jackson move his truck to Edison
in order for him to ‘‘keep better track of him.’’ He testified:
‘‘He gave me a whole lot of trouble.’’ He testified that he
wanted him to move his truck to Edison because: ‘‘I didn’t
hear from him as much as I wanted.’’ As to who made the
decision that he should move his truck, he testified: ‘‘I be-
lieve it was my decision.’’ When he called Jackson to tell
him of the decision, Jackson said: ‘‘This is bullshit’’ and
hung up the phone on LoPiccolo. He reported the incident
to Farrar, who told him to fire Jackson, which he did.
LoPiccolo also testified that the April 24 notice was due to
Jackson leaving work between 2 and 3 p.m. for personal rea-
sons. When he spoke to Jackson about this, he used abusive
language. As to what was said, he first testified: ‘‘He did say
bullshit a lot.’’ Asked if he specifically remembered what
Jackson said on this occasion, he testified: ‘‘He said that I
was picking on him and that it was bullshit . . . I believe
he also called me an asshole.’’ Jackson testified that
Tantalos, LoPiccolo, and all the drivers have, at times, used
profanity and he knows of no other driver who has been dis-
ciplined for it. Mills testified that he has called LoPiccolo a
scumbag, asshole, and a jerkoff on two or three occasions
218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and LoPiccolo used profanity to him; LoPiccolo denies this.
He also testified that all the drivers have cursed at
LoPiccolo.
In addition to the above terminations that are alleged to
violate Section 8(a)(3) of the Act, it is also alleged that Re-
spondent made the job so unpleasant for Fisher, Mills, and
Davis that they were forced to quit. That this constituted
constructive discharge of these employees in violation of
Section 8(a)(3) of the Act. The principal change in working
conditions of these drivers (as well as Jackson) that allegedly
resulted in their constructive discharges, was the elimination
of Linden as a place for the drivers to offload, and leave,
their trucks. This is also alleged to violate Section 8(a)(3) of
the Act. Burian testified that Respondent acquired the Linden
facility, which is 1 of 13 recycling plants operated by Re-
spondent. However, waste oil is not recycled there; it is only
dumped by the trucks and collected there until it can be dis-
persed to one of Respondent’s facilities that recycles or re-
refines oil, or sold to a third party. Beginning in about May,
Respondent commenced construction at the Linden facility.
While conceding that there was construction at the facility at
this time, the General Counsel’s position is that offloading
could still have taken place during the period of construction.
The construction permit for this facility was issued on May
29 for a locker and lunchroom building. Although Burian
testified that this renovation and construction had been
planned prior to the appearance of the Union, the earliest
date contained on this application and permit is May 25.
Burian testified that the drivers’ trailer was right where con-
struction was to begin and was in the center of the construc-
tion site, and for that reason Respondent transferred its oil
collection drivers from the Linden facility. (The tanks that
the drivers offloaded their oil into were about 50 yards be-
hind their trailer and were not affected by the construction)
The facility being constructed on the site, while referred to
in the permit as a locker room and lunchroom was actually
more than that. It was for the recycle center employees who
worked with hazardous materials. The locker room was a
one-way system of decontaminating them and their
workclothes so that when they exited it they were clean and
decontaminated and on their way home.
Farrar testified that when Respondent purchased the Lin-
den facility he knew that it was meant to be a temporary re-
pository for the waste oil drivers until they could be inte-
grated into one of its branch offices. He testified that when
he learned that the construction at Linden would necessitate
that the drivers cease offloading there for a period he had to
locate other sources to accept and dispose of the drivers’ oil.
He was able to locate only two companies that his environ-
mental department would approve of Lionetti in New Jersey
and Hitchcock in Bridgeport, Connecticut, and he negotiated
prices with these companies. He testified that there aren’t
many ‘‘players’’ in the area and that these were the only two
possibilities that were approved. In addition, Lionetti was not
large enough to handle all of their oil and that is why Hitch-
cock was used as well. The only plant owned by Respondent
that could have accepted this oil was in Modina, Pennsyl-
vania, west of Philadelphia, which he testified would be a 4-
or 5-hour drive. It actually appears to be between 100 and
120 miles from Linden. By inter office memorandum dated
April 26, Farrar wrote to LoPiccolo, saying that, effective
May 3, Ott, Green, Mills, Jackson, Hann, Davis, and Fisher
would offload their waste oil at Lionetti and another com-
pany, which would be purchasing the oil from Respondent
and that the drivers were to park their empty trucks at the
Rollins and Ryder maintenance facilities. On May 2, Farrar
sent a similar letter to LoPiccolo naming only Lionetti (the
other company had not been approved by Respondent’s envi-
ronmental department) with the effective date of May 7. On
May 7, Farrar wrote to LoPiccolo stating that effective that
date the above-mentioned drivers would offload at Lionetti in
New Jersey and at Hitchcock in Bridgeport, Connecticut. The
memorandum does not specify which drivers were to offload
at Lionetti and which were to offload at Hitchcock. In about
November, Respondent resumed offloading waste oil at Lin-
den, but with only one oil tank whereas there had previously
been one or two tanks.
Tantalos was fired by Respondent in April, but he was
aware that they were upgrading the facility, ‘‘but nothing
that would affect the day to day operations with . . . the oil
coming in. However, he doesn’t know for sure since he was
not present during the period of major construction work.
Mills began working for Respondent as a driver in June
1989; he covered Union, Essex, and part of Hudson County
in New Jersey. Until sometime in April he offloaded only at
Linden. About a week or two after Tamucci and Graham
were discharged, LoPiccolo reduced his route by taking away
the Essex County portion and assigned him to collect oil
from the routes of Tamucci and Graham. About 2 weeks
after the election, LoPiccolo told him that Farrar said that he
would no longer be offloading at Linden; that the Linden fa-
cility would be closed and he would offload at the Hitchcock
facility in Bridgeport, Connecticut, and park his truck in
Newark. He testified that after he complained about this,
LoPiccolo told him to try it, so on about May 1 he went to
Hitchcock to offload. He did his oil pickups and drove to
Bridgeport. He testified that he had to wait to have his oil
tested and offloaded and it took him from 6 p.m. until 1 a.m.
when he returned home after returning the truck to Newark.
Shortly thereafter he informed LoPiccolo that he was quitting
and gave him 2 weeks’ notice. He never made the trip to
Hitchcock again. Mills testified to a number of reasons for
quitting: he determined that the number of hours he spent
driving to and from Hitchcock, and the time there, would re-
duce his earnings. He also considered that the 5-cent charge
and the testing requirement instituted in January would re-
duce his earnings. For these reasons he quit.
Fisher began working for Respondent as a driver covering
the northwestern Jersey area; from that time until a few
weeks after the election he offloaded and kept his truck at
the Linden facility. Shortly after the election, he was as-
signed to do some pickups in Szpilka’s former territory in
Long Island. In addition, about a week or two after the elec-
tion, LoPiccolo told him that beginning the following Mon-
day, he would park his truck at a Ryder facility in Edison,
New Jersey (which was about the same distance from his
home as Linden), and offload the truck at Hitchcock in
Bridgeport, Connecticut. Under this new procedure
LoPiccolo met him every few days at the Ryder facility in
Edison and gave him whatever paperwork he needed. Be-
cause of this change he had to do his paperwork in the truck
and had no place to change out of his uniform and no tele-
phone to call his customers. He went to Hitchcock on one
occasion. He testified that LoPiccolo told him to do it in 2
219SAFETY KLEEN OIL SERVICES
3 The drivers were paid salary plus a commission based on the
amount of oil picked up.
days; to fill up his truck on 1 day and drive to Bridgeport
the next day because it was too much to do all in one day.
He filled up his truck during the day and parked it at Ryder
in Edison. The next morning he drove to Bridgeport, which
took 2 hours. He waited for 2 hours while the Hitchcock em-
ployees tested his oil; they then sent him ‘‘to the other side
of town’’ to offload the oil and he returned the truck to
Ryder in Edison. He testified: ‘‘So, by the time that you
drive there, drive back, everything, you are talking a ten hour
day with no commission because you can’t pick up oil.’’3 He
testified that Lionetti, in Old Bridge, New Jersey, where
some of the other drivers offloaded, is, at most, 15 miles
from Ryder, in Edison, where he parked his truck. After this,
he determined that he could no longer make enough money
working for Respondent and he quit a day or two later.
Davis began working for Respondent as a driver in August
1989; he covered northeast New Jersey and Orange and
Rockland Counties in New York. He offloaded at the Linden
facility from August 1989 through April. He testified that on
about May 4, Farrar came to Linden and told the drivers
(among other things) that Linden could no longer accept oil
on a daily basis and that they would each be assigned a new
place to park and a place to offload their oil. Two days later
he received a memo from Farrar saying that he would be
parking at a Rollins Truck Rental facility in Edison, New
Jersey, and offloading at Hitchcock in Bridgeport, Connecti-
cut. For the next month he followed the procedure of taking
his truck out in the morning, spending the day filling it up
and parking it at Rollins in Edison. The next day he drove
to Bridgeport, which he testified took about 2-1/2 hours,
spent 3 to 4 hours being offloaded at Hitchcock, and drove
back to Edison, using the entire day. For this last month of
his employment he therefore had only one productive day
out of every two. He quit on June 6 for the loss of pay
caused by his working only 1 out of days as well as the ‘‘un-
bearable working conditions’’ of having his truck as an of-
fice and having to meet with LoPiccolo in his truck when-
ever he needed something. In his resignation letter dated
June 7, Davis stated only: ‘‘Effective June 6, 1990, I hereby
sever the employer/employee relationship between Safety
Kleen Oil Services/Breslube and myself.’’
LoPiccolo testified that Davis only offloaded at Hitchcock
on three or four occasions and after that he changed the sys-
tem so that he would offload at Lionetti in Old Bridge, New
Jersey. He made the change because there were only two
drivers left there. Davis never gave him a reason for quitting.
Respondent moved into evidence documents stating that on
May 29 and 30 and June 5 Davis offloaded oil at Lionetti
in Old Bridge, New Jersey.
Of Respondent’s drivers who worked throughout this pe-
riod, only Green and Hann were not fired or had not quit by
June; there is little to discuss about Hann as he did not tes-
tify and was rarely mentioned. Green testified as a witness
for the General Counsel. He began working for Respondent
as a driver in November 1989; he covered New York City
and then ‘‘started running all of New York.’’ He testified
that several weeks prior to the election, while he was with
McKenzie (SKC’s Employment Relations Manager) in the
parking lot near the trailer at Linden, he told McKenzie:
‘‘Kevin, you know I am not going to vote for the Union.’’
McKenzie answered: ‘‘I know that.’’ The reason why he was
not going to vote for the Union was that he felt that the
agreement that he and the other drivers had with SKC would
not allow him to do so and ‘‘I knew that Safety Kleen
wasn’t going to have a union.’’ Up until the time of the elec-
tion Green was offloading at Linden. A few days prior to the
election, McKenzie told him that he would begin offloading
at an SKC branch in Fairless Hills, Pennsylvania, about an
hour and a half from Linden, and parking his truck at a
Ryder facility in Elizabeth, New Jersey. McKenzie and
Green went into the main building at Linden where
McKenzie called the Fairless Hills plant and told them that
Green would be offloading his oil there. Apparently,
McKenzie was asked about bookkeeping problems, because
he told the Fairless Hills representative that Green’s expenses
would be handled by the SKC office in Elgin, Illinois. At
this time McKenzie said to Green: ‘‘These guys were hurting
themselves and they were going to flush themselves out.’’
During the period when he was offloading at Fairless Hills
and parking at Ryder in Elizabeth, he was the only one of
the drivers at these locations and he kept in contact with su-
pervision (principally LoPiccolo) mainly by telephone. Dur-
ing this period he offloaded in the morning. He left Ryder
at about 7 a.m. and arrived in Fairless Hills at about 8:30.
Offloading took about an hour and a half after they took a
sample of the oil and then he returned to his route, prin-
cipally New York City.
IV. ANALYSIS
There are four 8(a)(1) allegations in the complaint. The
first two relate to statements made by Burian at the meeting
following the sickout; although the complaint alleges that
this meeting took place on about February 6, the evidence
establishes that it occurred the prior Tuesday, January 30. It
is alleged that at this meeting Burian impliedly threatened
the employees with discharge for engaging in union activities
and solicited employee complaints and promised its employ-
ees improved terms and conditions of employment, in viola-
tion of Section 8(a)(1) of the Act. I found the drivers, gen-
erally, to be credible witnesses, although, with rare excep-
tion, that could not answer questions briefly. Their answers,
often, were extended explanations of unasked questions. In
addition, their answers were, at times, exaggerated, probably
as a result of their continuing anger at Respondent. There are
a number of versions of this January 30 meeting, with some
unifying points. A number of the witnesses agree that Burian
referred to ‘‘hard ball’’ and/or ‘‘big boy’s school.’’ A review
of this meeting fails to establish any violations of Section
8(a)(1) of the Act. Burian was tough and threatened to
‘‘close them down in a minute,’’ but that was in reference
to their sickout and the fact that he knew that they weren’t
sick. Szpilka testified that Burian said that there was no way
he would agree to have a union represent them and Mills tes-
tified that he said that he wouldn’t stand for a union rep-
resenting them. These statements do not rise to the level of
an 8(a(1) violation and I recommend that the allegations re-
garding this meeting be dismissed.
It is next alleged that Respondent, by Burian, violated Sec-
tion 8(a)(1) of the Act, on about March 20, at the Linden
facility, by threatening its employees with unspecified repris-
als because of their membership in, and activities on behalf
220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of, the Union. There is no testimony about any such meeting
with the employees so this allegation is dismissed. The final
8(a)(1) allegation is that Respondent, by Burian, violated
Section 8(a)(1) of the Act, on about April 3, by promising
its employees that their compensation would not be reduced,
as had previously been announced, and that their terms and
conditions of employment would be improved if they re-
jected the Union as their collective-bargaining representative.
Fisher and Mills each testified that Burian said he would
keep the Linden facility open (Fisher testified for 1 year) if
they voted against the Union. Davis testified that Burian said
that if they didn’t vote the Union in, they wouldn’t be inte-
grated into the branches and their salaries would not be af-
fected until January 1, 1991. Burian denies making any such
promises. Of these witnesses, I found Fisher and Davis the
most credible although, as stated above, they could not an-
swer briefly and directly. Although Burian is, obviously, a
very intelligent and capable executive of Respondent, I did
not find him to be a particularly credible or convincing wit-
ness, and I would credit the testimony of Fisher and Davis
over Burian. The testimony of Fisher and Davis differed.
Fisher testified that the promise was to keep the Linden facil-
ity open; Davis testified that the promise was that they
wouldn’t be integrated and their salaries would not be af-
fected until January 1, 1991. This difference is not surprising
since the meeting took place over a year before this hearing
and the two issues—closing Linden and integration—loosely
related for the drivers. I find it more likely that he promised
to keep the Linden facility open if they rejected the Union.
Such a promise clearly violates Section 8(a)(1) of the Act.
Turning to the 8(a)(3) allegations, the Board set forth the
rule to be followed in such cases in Wright Line, 251 NLRB
1083 (1980) ‘‘First we shall require that the General Counsel
make a prima facie showing sufficient to support the infer-
ence that protected conduct was a ‘motivating factor’ in the
employer’s decision. Once this is established, the burden will
shift to the employer to demonstrate that the same action
would have taken place even in the absence of the protected
conduct.’’ I will initially discuss the allegedly unlawful ter-
minations of Graham, Szpilka, Ott, and Jackson; the alleg-
edly unlawful constructive discharges of Fisher, Davis, and
Mills will be discussed next.
There is no question that the General Counsel has satisfied
his initial burden under Wright Line regarding the termi-
nations of Graham, Szpilka, Ott, and Jackson. Graham and
Szpilka (along with Tamucci) were discharged 15 minutes
after the election in which the Union received more votes
than Respondent; Ott and Jackson were fired 1 and 2 months
after the election. The discharges of April 5 are especially
puzzling; the evidence establishes that Tamucci and Graham
were the two best producers of Respondent’s drivers and yet
the April 6 letter informing them officially of their discharge
has an extremely unpleasant tone. It tells them not to come
on Respondent’s property and reminds them of the non-
competition clause contained in their agreements with Re-
spondent. Respondent never explained what necessitated a
tone such as this when these employees allegedly did nothing
to cause their termination. Further puzzling is the rush Re-
spondent was apparently in to fire these three employees
when there is no evidence that they had to leave the
Thornwood and Amityville branches immediately. This is es-
pecially true for Szpilka, whose agreement did not expire
until late July. Respondent never answered why they didn’t
let him work until that time rather than keeping him on the
payroll for over 3 months without working. I also find faulty
Burian’s testimony that an additional reason for firing these
three employees is that since they were parking at the
branches they were unsupervised: ‘‘We were very apprehen-
sive about having three people floating and not having super-
vision.’’ Apparently, Respondent did not have that same ap-
prehension when, in about early May, it stopped dumping at
Linden and it had about seven drivers ‘‘floating’’ all over the
states so that the only way they could meet LoPiccolo was
by calling him and meeting him in their trucks. Additionally,
in the circumstances here, I cannot overlook the fact that
within 2 months of the Board election, about 80 percent of
Respondent’s drivers were no longer working for Respond-
ent, and one of the remaining drivers (Green) had told one
of Respondent’s representatives prior to the election that he
was going to vote against the Union.
There is also evidence of Respondent’s animus toward the
Union. Tantalos testified to two occasions (by telephone the
day of the sickout and at a meeting in Canada in February)
in which Farrar expressed animus toward the Union. Farrar
asked him who was the ‘‘ringleader’’ for the Union, called
Tamucci an ‘‘asshole’’ because he assumed that he was the
ringleader and said that all the drivers would be fired before
Respondent would recognize the the Union. Although Farrar
testified that he never made these statements, I found that
Tantalos was an articulate and credible witness. Although he
clearly favored the drivers over Respondent, and, obviously,
resented his treatment by Respondent, I found him to be
more credible than Farrar and would therefore credit this tes-
timony. Finally, there is the testimony of Green who, al-
though a witness for the General Counsel, was the most im-
partial and disinterested of all the witnesses. He credibly tes-
tified that a few days prior to the election McKenzie told
him that the drivers were ‘‘hurting themselves’’ and would
‘‘flush themselves out.’’ Other reasons for my finding will
be discussed below separately for each of the alleged
discriminatees in the discussion of whether Respondent has
satisfied its burden for each.
Respondent’s principal defense for firing Graham and
Szpilka (as well as Tamucci) is that they were unable to ob-
tain permits at the Thornwood and Amityville branches of
SKC to construct waste oil tanks and it was environmentally
unsafe to park the loaded trucks at these branches. With the
exception of Tantalos’ testimony that subsequent to the event
in question, he met an SKC waste oil driver who told him
that ‘‘once in a while’’ he parked his truck at the Thornwood
branch, there is no dispute with the fact that subsequent to
April 5, waste oil drivers were not parking at these SKC
branches. Farrar testified, and Respondent’s Brief argues, that
early in 1990 Respondent realized that these permits would
not be granted and that parking full trucks at these branches
exposed Respondent to possible liability. Even if true, Re-
spondent never satisfactorily explained why it did not look
for an alternative to firing these employees. Prior to the ad-
vent of the Union, Respondent went to considerable expense
of hiring a jockey to bring Tamucci’s and Graham’s truck to
Linden; this was done solely for the convenience of three
drivers. It would seem that subsequently Respondent could
have looked for an alternative to firing them, such as locat-
ing a Rollins or Ryder facility for them to park and letting
221SAFETY KLEEN OIL SERVICES
Tamucci and Graham offload at Hitchcock, where they had
previously offloaded, certainly more convenient for them
than it was for Fisher, Davis, and Mills. This is especially
true since the undisputed testimony is that Tamucci and
Graham were Respondent’s best producers in the area and
that Respondent continued to collect oil in the area. Finally,
Tantalos’ credited testimony that, on two occasions, Farrar
said that Tamucci was the ringleader reinforces this finding;
if Respondent was looking for a reason to fire him, it would
look highly suspicious unless they also fired Graham and
Szpilka. Burian testified, and Respondent’s brief argues, that
at the Board conference he told the Union and the Board
agent that Tamucci, Graham, and Szpilka would be fired.
However, this, obviously, occurred after the drivers’ union
activity and Farrar’s statements of animus toward the Union
and Tamucci and establishes only that Respondent decided,
prior to April 5, to fire them. It does not establish that Re-
spondent made this decision for nondiscriminatory reasons. I
therefore find that Respondent has not satisfied its burden
and that by firing Graham and Szpilka on April 5 Respond-
ent violated Section 8(a)(1) and (3) of the Act.
Ott was fired 1 month after the election, allegedly, because
of an accident he had a week earlier, being absent from work
for 7 days in 1990 and returning with a load containing 50
percent water on April 23. It is true that on April 27 Ott’s
truck backed into an automobile and caused about $250 dam-
age to it. It, apparently, is also true that he was already ab-
sent 7 days in 1990 and had 50 percent water in a pickup
on April 23. Although these are, of course, serious matters
and would normally be grounds for termination, two factors
convince me otherwise in this matter. Respondent failed to
establish that Ott had been previously warned about any such
conduct and that it would subject him to termination and Re-
spondent has failed to establish that any other employee has
been fired for similar conduct. In addition, if these facts were
the sole basis of this hearing I might have found it insuffi-
cient for a violation. However, with the animus that Re-
spondent has displayed elsewhere in this record, and the si-
multaneous terminations by Respondent, I find that these
facts correlate with Respondent’s other unlawful activity. I
therefore find that Respondent has not sustained its burden,
and that by firing Ott on about May 3, Respondent violated
Section 8(a)(1) and (3) of the Act.
The final unlawful discharge alleged involves Jackson,
who was fired on June 5. Jackson’s discharge was allegedly
caused by a disciplinary notice dated April 24 together with
an incident that occurred on June 4. There are two separate
situations listed in the disciplinary notice: his failure to re-
port for work on April 17 and the allegation that he left work
between 2 and 3 p.m. on April 16, 18, 19, and 20. As to
the former, Jackson informed LoPiccolo on the prior day that
Green would be driving him to work the following day. Both
Green and Jackson testified that Green’s car did not work
and they could not make it to work, but that Jackson called
LoPiccolo and asked if any of Respondent’s vehicles were in
the area to pick them up and drive them to work. Further
weakening Respondent’s case is the fact that Green, whose
automobile breakdown caused them to be unable to report
for work, never received a similar warning. He testified: ‘‘No
one ever said anything to me.’’ The most obvious reason for
this disparate treatment is that Green had previously told
McKenzie that he would vote against the Union. As regards
the latter allegation in the disciplinary notice, Jackson im-
pressed me as a soft-spoken credible individual, and I credit
his testimony over LoPiccolo. I therefore find that he had
previously notified LoPiccolo that during the week in ques-
tion he would have to leave work early to care for his chil-
dren, and LoPiccolo offered no objection. When he did leave
early that week (an hour or two each day) he was written
up, not only for that alleged offense, but for using profanity
toward LoPiccolo when he was told of the problem. I credit
Jackson that he did not use profanity at this time. Addition-
ally, it should be remembered that these employees are truck-
drivers living in the real world of working men. These are
not diplomats at the United Nations or members of the Presi-
dent’s Cabinet. As the testimony establishes, profanity is an
everyday occurrence in these situations and, even if it did
occur, I am sure that LoPiccolo did not recoil in horror at
the utterance of these words.
The alleged ‘‘straw that broke the camel’s back’’ as far as
Jackson’s employment was involved, was the early morning
June 5 telephone call from LoPiccolo to Jackson. Having
found Jackson to be a more credible witness than LoPiccolo,
I credit his testimony that he did work the prior day and re-
sponded: ‘‘That’s bull’’ to LoPiccolo’s allegation. In the cir-
cumstances of this matter, the use of profanity to answer this
allegation might have been warranted considering the lengths
that Respondent was going to find a reason to fire him.
These facts lead to the conclusion that what LoPiccolo told
Jackson about the disciplinary notice was true: ‘‘I have noth-
ing to do with it. This is what they told me to do.’’ I there-
fore find that Respondent has not satisfied its burden that
Jackson would have been fired even absent the protected ac-
tivities and find that this discharge violates Section 8(a)(1)
and (3) of the Act.
The final allegation involves the alleged constructive dis-
charges of Fisher, Mills, and Davis. Basically, it is alleged
that by requiring them to offload at Hitchcock in Bridgeport,
Connecticut, Respondent attempted to, and did, make work
so unpleasant for them (because of their union activity) that
they quit their employment. Respondent defends that required
construction at the Linden facility necessitated stopping off-
loading at that facility, and the only alternate places it could
locate were Lionetti and Hitchcock. Lionetti did not have
adequate capacity for all the drivers, so some had to offload
at Hitchcock for this period. They allege that driving this dis-
tance is not uncommon in the industry. There is no dispute
about the standard to be followed:
To establish a constructive discharge the General Coun-
sel must prove two elements, first that the employer im-
posed intolerable work conditions compelling the em-
ployee to leave his or her job, and second that the em-
ployer imposed the conditions because of the employ-
ee’s union activity.
Alaska Cummins Services, 281 NLRB 1194, 1195 (1986); in
Crystal Princeton Refining Co., 222 NLRB 1068 (1976), the
Board used the standard: ‘‘so difficult or unpleasant as to
force him to resign.’’ The initial question is therefore how
intolerable or unpleasant were the working conditions that
Respondent imposed on Fisher, Davis, and Mills after the
election. From the time they began working as drivers for
Respondent they were all parking and offloading at Linden.
222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 As is probably obvious, I am not a cartographer, but these figures
are necessary in this determination, and are as close as I can esti-
mate.
That means that their workday began by driving to the Lin-
den facility, taking their trucks on their routes (New Jersey,
as well as Rockland and Orange County, New York, West
of the Hudson River) and returning to the Linden facility
where they left their truck to be offloaded and picked up in
the morning. The nonproductive parts of their day are driving
to a facility to offload the oil and waiting with their truck
while it is offloaded, if they have to wait. These are the two
alleged intolerable changes to their working conditions that
Respondent imposed on them after the election. Previously,
these three employees did not have to wait during this period
because they parked their trucks at Linden. At Hitchcock,
they did have to wait while their oil was tested and
offloaded. They testified that this testing and offloading took
about 3 or 4 hours, nonproductive time that they would not
have had to spend if they were offloading at Linden.
The other aspect of the allegedly intolerable conditions is
not as easy to measure because these drivers had different
routes. Mills’ route covered Union, Essex, and part of Hud-
son County, an area encompassing the Linden facility and,
apparently, never more than 15 or 20 miles from Linden.
Fisher’s route was northern New Jersey, whose farthest point
was 30 or 40 miles from Linden. Davis’ route was northeast
New Jersey and Orange and Rockland Counties in New
York, an area ranging from 30 to 60 miles from Linden.4
Subsequent to the election they were all assigned to offload
at Hitchcock in Bridgeport; again the additional driving is
different for each of them because of their routes. The
change was greatest for Mills, whose route had been closest
to Linden and was the most southerly. From midpoint of his
route to Bridgeport, Connecticut, is approximately 75 miles.
It appears that the distance from mid-point of Fisher and
Davis’ routes to Bridgeport is also about 75 miles. In addi-
tion, after offloading at Hitchcock, they had to return to New
Jersey to park their truck; Mills parked in Newark, Fisher
and Davis in Edison, about 15 miles south of Linden. Fi-
nally, as a practical matter, it must be noted that for these
drivers to drive to Hitchcock it required them to cross the
Hudson River, probably by way of the George Washington
or the Tappan Zee Bridges. These are routes that are often
slow moving due to heavy traffic, delaying their trips.
These drivers were paid on a salary plus commission
basis; their earnings, obviously, depended on their production
(the amount of oil they collected) which depended on the
amount of time they could spend on the road. To take the
most extreme example, Mills was never more than 30 min-
utes to an hour from Linden; when he finished his route, he
drove to Linden, left his truck, and went home. Fisher and
Davis, whose farthest points were about an hour to an hour
and a half from Linden, also left their trucks there on return-
ing and went home. Under the new system they had to drive
about 75 to 90 miles each way, which would take about 2
hours each way, and wait about 3 hours for their oil to be
tested and offloaded, for a total of about 7 hours. This rep-
resented about 6 hours extra of nonproductive time for these
drivers for each load of oil. This clearly represents intoler-
able working conditions so difficult or unpleasant as to cause
the employees to quit.
Counsel for Respondent, in his brief, defends that Re-
spondent’s drivers offloaded at Hitchcock even prior to the
appearance of the Union. However, this involved Tamucci
and Tantalos, who lived in Westchester County, New York.
The evidence establishes that Tamucci collected oil in this
area and lived in Rye Brook, New York, which is about 35
miles south of Bridgeport; this drive is straight up interstate
95, without any bridges to cross, clearly distinguishable from
the situations involving Mills, Fisher, and Davis. Counsel for
Respondent also challenges the General Counsel’s theory of
constructive discharge on two additional grounds: that Mills
and Fisher only drove to Bridgeport on one occasion and that
the earnings of these employees were not adversely affected
by the change. As to the former, it is true that Mills and
Fisher drove there only once; they testified that the length of
time that this required convinced them even after one trip
that they would lose too much pay because of this change.
In his brief, counsel for Respondent cites Razco, Inc., 231
NLRB 660 in support of his argument that one trip is not
enough to support a constructive discharge. In that case the
administrative law judge, as affirmed by the Board, found no
constructive discharge of employee Zippy, not because she
only worked at the new location for 1 day, but because the
working conditions at the new location ‘‘measured by the
standards of a reasonable person, did not rise to this level
of severity.’’ Davis testified that he began offloading at
Hitchcock beginning on about May 6 and offloaded there
until he quit on June 6; because of the amount of time this
consumed, he followed a procedure of doing his route on 1
day and spending the following day driving to, and offload-
ing at, Hitchcock. He therefore had only one productive day
out of every 2 during this period. To counter this testimony,
LoPiccolo testified that after Davis had offloaded at Hitch-
cock on three or four occasions he transferred him to off-
loading at Lionetti, New Jersey, where he was at the time
he quit. In support of this, Respondent introduced documen-
tary evidence establishing that on May 29 and 30 and June
5, Davis offloaded at Lionetti. I credit the testimony of Davis
over LoPiccolo; I found his testimony more open and believ-
able than I found LoPiccolo, and I therefore find that Davis
offloaded for the month at Hitchcock. Respondent’s docu-
mentary evidence establishes only that on 3 days during the
latter part of this period he offloaded at Lionetti.
Counsel for Respondent, in questioning Fisher, showed
him his payroll records, which established that his pay for
the week ending May 4 was his highest earnings for, at least,
the prior 6 months. Counsel for Respondent, in questioning
Mills, showed him his payroll record, which established that
his last paycheck was about $100 higher than his average bi-
weekly paycheck. However, these payroll records do not as-
sist Respondent in defending the constructive discharge de-
fense. Fisher and Mills only drove to Bridgeport on one oc-
casion, so I would not expect it to have much affect on their
pay, especially for Mills, who did his route and drove to
Bridgeport on the same day. In addition, after Tamucci,
Szpilka, and Graham were fired, Fisher, Davis, Mills and Re-
spondent’s other drivers were sent to the territory to do their
pickups. This would tend to increase their earnings. Finally,
Mills testified that his last check was high because it in-
cluded money Respondent owed him from prior deductions.
The final issue is whether the second test of Crystal
Princeton has been met in establishing a constructive dis-
223SAFETY KLEEN OIL SERVICES
5 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.
charge: whether the change was made because of the em-
ployees’ union activities. I find that it was. Respondent de-
fends that Fisher, Davis, and Mills were transferred to Hitch-
cock because construction at Linden foreclosed continuing
offloading at the facility. The employees who testified on the
subject testified that construction did begin at the Linden fa-
cility in May, but that it didn’t involve the area where the
trailer and oil tanks were, and they could have continued to
offload there during this construction period. Burian and
Farrar testified that the construction foreclosed the possibility
of offloading, although Burian also testified that the tanks
were not affected by the construction. Of the documents re-
lating to the construction that Respondent moved into evi-
dence, the application was dated May 25 and the permit was
granted on May 29, certainly after the union activity and the
Board election, and after Fisher, Davis, and Mills were trans-
ferred to Bridgeport. There is no way for me to make a de-
finitive finding of whether offloading could continue at Lin-
den during construction other than to repeat that I have pre-
viously credited the testimony of the drivers over Burian and
Farrar and have previously found that Respondent had ani-
mus toward the Union and the drivers for bringing the Union
in. These findings suggest that Respondent used the construc-
tion at Linden as an excuse for making the drivers’ jobs
more difficult. Counsel for Respondent states in his brief that
it is a common occurrence and a generally accepted proce-
dure for Respondent, and other similarly situated companies,
to sell oil to third parties and this is supported by the record
here. Additionally, the evidence fails to establish that any of
Respondent’s drivers offloaded at Linden between May and
November, although this would be difficult to prove since
none of Respondent’s drivers were there during this period.
I have previously found that Farrar expressed animus toward
the Union, that Burian made promises to the employees 2
days before the election, contingent on them rejecting the
Union, and that during this period McKenzie told Green that
the drivers would ‘‘flush themselves out.’’ In addition, I have
previously found that Respondent discharged Graham,
Szpilka, Ott, and Jackson because of their union activities, in
violation of Section 8(a)(1) and (3) of the Act. It is not a
difficult step from these findings to a finding that Respond-
ent temporarily closed Linden and transferred Fisher, Davis,
and Mills to offloading at Hitchcock because of their union
activities. As stated above, this was a substantial change for
them, one that required almost 7 hours of their time in driv-
ing and waiting when their previous drive time to Linden
was fairly short and they did not have to wait while the
trucks were offloaded. In addition, Respondent offered them
no assistance, monetary or otherwise, to alleviate these extra
burdens. This compares poorly with Respondent’s attitude to-
ward the drivers prior to the election. At that time Respond-
ent gave them a 90-percent guarantee on their wages, a
bonus for the time it took while their trucks were offloaded,
and obtained a jockey for Tamucci and Graham to save them
the time of driving to Linden, waiting for their trucks to be
offloaded, and returning to Thornwood. Fisher, Davis, and
Mills were offered no such benefit for the additional non-
productive hours they had to spend driving to, and waiting
at, Hitchcock. For all these reasons, I find that the second
test of Crystal Princeton has been met, that Fisher, Davis,
and Mills were transferred because of the union activities and
that these constructive discharges violate Section 8(a)(1) and
(3) of the Act. I also find that Respondent temporarily closed
the Linden facility for offloading waste oil because of the
employees’ union activity, in violation of Section 8(a)(1) and
(3) of the Act.
CONCLUSIONS OF LAW
1. Safety Kleen Oil Services, Inc., a wholly owned sub-
sidiary of Safety Kleen Corp., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
promising to keep its Linden facility in operation if the em-
ployees rejected the Union in an upcoming Board election.
4. Respondent violated Section 8(a)(1) and (3) of the Act
by firing Daniel Graham, John Szpilka, Robert Ott, and
David Jackson because of their membership in, and activities
on behalf of, the Union.
5. Respondent violated Section 8(a)(1) and (3) of the Act
by constructively discharging John Fisher, Emanuel Davis,
and Ronald Mills because of their membership in, and activi-
ties on behalf of, the Union.
6. Respondent violated Section 8(a)(1) and (3) of the Act
by temporarily ceasing waste oil collection at the Linden fa-
cility because of the drivers’ union activities.
7. The Respondent did not further violate the Act as also
alleged in the second amended complaint.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
As I have found that Respondent unlawfully terminated
Daniel Graham, John Szpilka, Robert Ott, David Jackson,
John Fisher, Emanuel Davis, and Ronald Mills, I shall rec-
ommend that Respondent be ordered to offer each of them
immediate reinstatement to their former positions of employ-
ment or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, and to expunge from its files any
references to the terminations. It is also recommended that
Respondent be ordered to make whole Graham, Szpilka, Ott,
Jackson, Fisher, Davis, and Mills for any loss of earnings
they suffered as a result of the discrimination against them.
Backpay shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), and New Horizons for the
Retarded, 283 NLRB 1173. See, generally, Isis Plumbing
Co., 138 NLRB 716 (1962). As the Linden facility reopened
for waste oil collection in about November, no remedy is re-
quired in this regard.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 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, Safety Kleen Oil Services, Inc., a wholly
owned subsidiary of Safety Kleen Corp., its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Promising benefits to its employees if they withdraw
their support from the Union.
(b) Discharging or constructively discharging its employ-
ees, or closing a facility employed by these employees, be-
cause of their membership in, or activities on behalf of, the
Union.
(c) In any other manner interfering with, restraining, or co-
ercing its employees in the exercise of their Section 7 rights.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Graham, Szpilka, Ott, Jackson, Fisher, Davis,
and Mills immediate reinstatement to their former positions
of employment or, if those positions are no longer available,
to substantially similar positions without prejudice to their
seniority or other rights and privileges, and make them whole
for the loss they suffered as a result of the discrimination in
the manner set forth above in the section.
(b) Expunge from its files any reference to these termi-
nations and notify them, in writing, that this has been done
and that evidence of this unlawful activity will not be used
as a basis for future actions against them.
(c) Post at its facility in Linden, New Jersey, and at all
of its facilities in the States of New Jersey, New York, and
Connecticut, copies of the attached notice marked ‘‘Appen-
dix.’’6 Copies of the notice, on forms provided by the Re-
gional Director for Region 22, after being signed by Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to ensure that the
notices are not altered, defaced or covered by any other ma-
terial.
(d) Preserve and, on request, make available to the Board
or its agents for examination or copying, all records and doc-
uments necessary to analyze and determine the amount of
backpay owed to Graham, Szpilka, Ott, Jackson, Fisher,
Davis, and Mills.
(e) Notify the Regional Director in writing, within 20 days
from the date of this Order, what steps Respondent has taken
to comply.
IT IS FURTHER ORDERED that the complaint is dismissed as
to allegations not specifically found.