Superior Emerald Park Landfill, LLC

National Labor Relations Board - Board Decisions

Sep 30, 2003

340 N.L.R.B. 449 (N.L.R.B. 2003)

SUPERIOR EMERALD PARK LANDFILL, LLC 449
Superior Emerald Park Landfill, LLC and Interna-
tional Union of Operating Engineers, Local 139,
AFL–CIO. Cases 30–CA–16148 and 30–RC–
6468
September 30, 2003
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN AND WALSH
On May 13, 2003, Administrative Law Judge Paul
Buxbaum issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed cross-exceptions and a supporting brief.
The General Counsel filed an answering brief to the Re-
spondent’s exceptions. The Respondent filed an answer-
ing brief to the cross-exceptions and a reply brief to the
General Counsel’s answering brief. The General Coun-
sel filed a reply brief to the Respondent’s answering
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 record in
light of the exceptions and briefs and has decided to af-
firm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order and direct a second
election.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
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 adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) by promulgating, maintaining, and enforcing an unlawful no-
distribution policy, we find it unnecessary to pass on the judge’s find-
ing that the Respondent promulgated and enforced this policy in reac-
tion to union organizing and with antiunion animus.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) by unlawfully soliciting grievances and impliedly promising to
remedy them, Chairman Battista finds it unnecessary to rely on (a) the
statement by the Respondent’s general manager, Robert Borkenhagen,
asking employees to give him a chance to prove himself; and (b) the
judge’s finding that the Respondent changed from a past practice of
passive grievance solicitation to an active practice of grievance solicita-
tion.
Chairman Battista also finds it unnecessary to pass on the judge’s
finding that the Respondent violated Sec. 8(a)(1) when Borkenhagen
told employees that if the Union won, bargaining would start from
“zero,” or “scratch,” because this finding would be cumulative of other
violations found, i.e., the threat to freeze wages, and would not affect
the remedy.
orders that the Respondent, Superior Emerald Park Landfill,
LLC, of Muskego, Wisconsin, its officers, agents, succes-
sors, and assigns, will take the following action set forth
in the Order.
[Direction of Second Election omitted from publica-
tion.]

Brent E. Childerhose and Joyce Ann Seiser, Esqs., for the Gen-
eral Counsel.
Bruce F. Mills and Kelly J. Klick, Esqs., of Milwaukee, Wis-
consin, for the Respondent.
William J. Burg, of Pewaukee, Wisconsin, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
PAUL BUXBAUM, Administrative Law Judge. This case
was tried in Milwaukee, Wisconsin, on January 23 and 24,
2003. In Case 30–CA–16148 the original charge was filed
September 4, 2002, and amended charges were filed September
12 and October 31. The complaint was issued October 31,
2002, and an amended complaint issued on January 15, 2003.
In Case 30–RC–6468, on September 4, 2002, the Union filed
objections to an election held on August 28, 2002. Additional
objections were filed September 12 and October 31.1 On No-
vember 7, 2002, the Regional Director issued an order consoli-
dating cases and notice of hearing on objections to conduct
affecting the results of the election.2 By this order, the two
cases were consolidated for hearing.
The unfair labor practice charges and objections to the elec-
tion arise from the same alleged misconduct. The Company is
alleged to have maintained and enforced an overly broad no-
solicitation policy, to have improperly interrogated its employ-
ees regarding union activities, improperly promised its employ-
ees improved working conditions, and impliedly promised im-
proved benefits. It is further alleged that the Company threat-
ened its employees by asserting that if they decided to be repre-
sented by the Union, the Company would bargain from scratch
and would freeze wages and benefits until a collective-
bargaining agreement was reached. The Company is also al-
leged to have threatened its employees with discharge in the
event that they participated in a strike. Finally, it is alleged that
the Company threatened an employee with a wage adjustment
due to union activities, promised an employee a wage increase,
and granted wage increases with the purpose of interfering with
employees in their exercise of their rights under the Act. These
actions are alleged to have violated Section 8(a)(1) of the Act
and to have compromised the results of the election held on
August 28, 2002. The Company filed answers to the complaint
and amended complaint, denying all material allegations.3
1 Some of the Union’s objections were subsequently withdrawn.
(GC Exh. 1(j) fn. 2.)
2 In his report and order regarding the Union’s election objections,
the Regional Director added further objections arising from his investi-
gation. (GC Exh. 1(j) pp. 4–5.)
3 The Company also filed a pretrial motion to dismiss the objections
to the election on the basis that they lacked the specificity required by
340 NLRB No. 54
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 450
On the entire record,4 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Company, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, a limited liability corporation, processes and
stores municipal trash and other forms of waste at its facility in
Muskego, Wisconsin, where it annually purchased and received
goods and materials valued in excess of $50,000 directly from
suppliers located outside the State of Wisconsin. The Company
admits,5 and I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Organizing Campaign and the Company’s Response
The facility involved in this case, Superior Emerald Park
Landfill, LLC has eight employees who process municipal
trash, asbestos, and other waste products. It is organized as a
limited liability corporation under the laws of Wisconsin.6 This
corporation is owned by Onyx Waste Services, which, in turn,
is part of Onyx North America. A French corporation, Vivendi
Environment, owns Onyx North America.
In 2001, the Company hired Jeff Lauer and Eric Schauer,
two heavy equipment operators who figure prominently in this
matter. Lauer had been a member of Local 139, International
Union of Operating Engineers, since 1988. Approximately 3
months after the Company hired him, he telephoned Matthew
DeHahn, the business representative and organizer for the Un-
ion. Lauer proposed that the Union begin an organizing cam-
paign among the Company’s heavy equipment operators. This
suggestion was adopted by the Union.
Lauer and Schauer were very active in the organizing effort.
Lauer testified that he solicited involvement from other em-
ployees and attended meetings. Schauer agreed with counsel
for the Company’s characterization of him as having “openly
supported” the Union. (Tr. 56.) He wore hats and T-shirts with
union insignia and carried a lunchbox with a union sticker.

Sec. 102.69(a) of the Board’s Rules and Regulations. (GC Exh. 1(l).)
The General Counsel filed an opposition. (GC Exh. 1(o).) I denied the
motion, finding that the allegations, taken as a whole, were sufficiently
specific and that the Regional Director possessing broad discretion in
this area did not abuse that discretion by deciding to accept the filing of
the objections. (Tr. 10–11.)
4 The transcript contains some minor errors. At Tr. 22, I asked
counsel for the Respondent about the contents of the answer to the
amended complaint. At L. 5, he is quoted as saying, “We denied deny-
ing.” He actually said, “We denied everything.” At Tr. 55, L. 13, the
witness is asked to confirm that he “didn’t ta[p]e that meeting then.” In
fact, he was asked to confirm that he hadn’t taped that meeting. At Tr.
71, LL 18–19, the witness testified that he was asked if “we had a
meeting that might.” The actual reference was for a meeting that night.
5 See Respondent’s answer, pars. 2 and 3. (GC Exh. 1(i).)
6 The corporate name is Onyx Superior EPL [Emerald Park Land-
fill], LLC.
Schauer also performed clandestine taping of three meetings
with management officials relating to the organizing campaign.
On June 13, 2002, Lauer and Schauer signed a letter author-
izing the Union to act as their collective-bargaining representa-
tive. Two other equipment operators also signed this authoriza-
tion letter. The letter asserted that the four signatories consti-
tuted a bargaining unit of four full-time equipment operators. It
requested that the Company make immediate arrangements to
negotiate a collective-bargaining agreement with the Union.
(GC Exh. 2.)
This demand for recognition of the Union was presented to
Gene Kramer, the Company’s general manager, on June 18.7
Both Schauer and Lauer delivered the recognition letter to
Kramer. Schauer also used a concealed tape recorder to record
their conversation.8 After receiving the letter, Kramer abruptly
terminated the meeting. Schauer testified that he “just shooed
us out of his office,” and Lauer described Kramer as “kind of
boot[ing] us out of the office.” (Tr. 30 and 70.)
While the evidence does not disclose the Company’s precise
response to the request for recognition, it is evident that it was
not favorable. As a result, on July 15, the Union filed a petition
for an election. On July 29, the Regional Director approved a
Stipulated Election Agreement that determined that the appli-
cable unit would consist of eight employees, those being the
“full time and part-time equipment operators, mechanics, and
ground maintenance employees” of the landfill. (GC Exh. 1(j)
p.1.) The election was held on August 28, 2002. All of the
eligible employees voted. There were no challenged ballots.
The election results were evenly divided, four employees hav-
ing voted for the Union and four against it. On September 4,
the Union filed its initial objections to conduct that it asserted
had affected the results of the election. (GC Exh. 1(a).)
In order to assess the validity of the Union’s contentions, it is
necessary to examine the events that transpired during the rep-
resentation campaign. Very shortly after Lauer and Schauer
presented their request for recognition to General Manager
Kramer, he was replaced. His replacement as general manager
was Robert Borkenhagen. Borkenhagen had worked for the
parent company for 5 years and was serving as general manager
at another facility. He testified that during the “second or third
week in June” he was contacted concerning the position of
general manager at Superior Emerald Park. (Tr. 151.) One
week later, he attended a meeting to discuss this position. At
the meeting, he was offered the job and was told that he would
be advised of his start date.
Borkenhagen assumed his new position on July 19; a day af-
ter the Union filed its petition for an election. Borkenhagen
testified that he was unaware of this filing when he commenced
his duties as general manager. Shortly after taking over, he met
with his predecessor, Kramer, and with the facility manager,
Thomas Marach. They reviewed the records regarding the
Company’s equipment, and Borkenhagen concluded that the
7 Lauer testified that this happened on June 18. Schauer simply indi-
cated that it was in mid-June. As will become apparent, Schauer gener-
ally showed considerable difficulty in recounting dates and chronology.
By contrast, Lauer was quite precise about these matters.
8 This tape was not introduced into evidence.
SUPERIOR EMERALD PARK LANDFILL, LLC 451
equipment was “in pretty rough shape.” (Tr. 155.) He testified
that he understood that having to work with such equipment
was “very frustrating” for the employees. (Tr. 155.) He was
aware of underutilized equipment at some of the parent com-
pany’s other facilities and decided to “look at the possibility of
acquiring other equipment” from those facilities. (Tr. 156.) He
testified that he made this decision in order to create a more
“effective, efficient, environmentally sound operation.” (Tr.
157.)
Four days after assuming his new position, Borkenhagen
learned that the Union had filed a petition for a representation
election. According to Lauer, on that same day, Borkenhagen
came into the employees’ lunchroom and introduced himself to
Lauer and Schauer.9 Schauer reported that Borkenhagen told
them that he was going to try to obtain more equipment and staff
and was “going to make necessary changes to make it a better
place to work.” (Tr. 32.) Lauer testified that Borkenhagen de-
scribed his own prior membership in the Union and offered to
try to work out any differences. Lauer went on to relate that
“somewhere toward the end [of their discussion] he [Borkenha-
gen] asked us if we had a meeting that night.” (Tr. 71.) Lauer
did not respond to this question, but Schauer told Borkenhagen
that “no, we didn’t have one. We had one Monday . . .” (Tr.
71).10 Borkenhagen reported that he knew that Lauer and
Schauer were primary union organizers. When asked if he had
ever questioned them about “where and when union meetings
were held,” he denied making such inquiries. (Tr. 157.) He
opined that such information was “irrelevant to me.” (Tr. 171.)
Both Lauer and Schauer testified that they had a further dis-
cussion with Borkenhagen on a second occasion. The conver-
sion took place in the lunchroom on July 29.11 Borkenhagen
told the two union activists that he was trying to obtain more
equipment. Schauer testified that Borkenhagen then asked
“where and when” a union meeting would be held. (Tr. 33.)
Schauer went on to relate that he responded in a manner similar
to his response to the earlier questioning about union meetings.
In other words, he intentionally confused union meetings with
meetings at the Regional Office, telling Borkenhagen that the
meeting was on Monday. Lauer testified that Borkenhagen told
the men that he wanted to “see if we could work out the differ-
ences and get this thing settled.” (Tr. 72.) As previously indi-
cated Borkenhagen denied making any inquiry as to the dates
and places of union meetings.

9 Lauer testified that this conversation took place on July 23.
Schauer reported that it occurred around July 25. Given my assessment
of Schauer’s poor ability to recount such information and Lauer’s con-
trasting precision in these matters, I credit Lauer.
10 Lauer testified that Schauer’s reference to a meeting on Monday
was not a union meeting, but rather an event involving the Regional
Office. While never made explicit, I conclude that the reference may
have been to the filing of the election petition on Monday, July 15.
Lauer also testified that Schauer’s answer was incorrect, since a union
meeting was actually scheduled for that evening.
11 I credit Lauer’s testimony as to the date. Schauer testified that the
conversation occurred approximately a week before a meeting at the
Regional Office on July 29. This would not make sense, as it would
place the meeting before the date Schauer recollected for the occur-
rence of the first meeting with Borkenhagen. This illustrates Schauer’s
unreliability as to dates and chronology.
Schauer testified that Borkenhagen engaged the two activists
in a third conversation of a similar nature. He reported that this
occurred in early August. According to Schauer, Borkenhagen
told the men that he wished he had gotten the job as general
manager earlier so that they could have resolved some of the
issues and problems.
On August 7, the Company commenced a series of meetings
with its employees designed to present its position regarding
the organizing campaign. Martin Demeter, the Company’s vice
president for human resources, testified that the two meetings
on August 7 were “kickoff meetings to begin our discussions
with the employees about the union organizing campaign.” (Tr.
141.) The meetings were held in the lunchroom during each
group of employees’ lunch period. The first meeting began at
11 a.m., and was attended by four employees, Lauer, Schauer,
Gene Zabler, and Tina Zabler. Present on behalf of manage-
ment were Demeter, Borkenhagen, and Marach.
Borkenhagen began the meeting by introducing himself as
the new general manager. He also introduced Demeter. He
explained the purpose of the meeting. There were some pre-
liminary questions regarding the facility’s current equipment.
After this, the discussion turned to the issue of union represen-
tation. At approximately this point in the meeting, Schauer
began recording the conversation by use of a concealed tape
recorder.12 As this recording and a transcript prepared from it
are key evidence in this trial, it is necessary to examine the
circumstances involved in their preparation. All witnesses who
were present at the meeting and examined the transcript of the
recording are in essential agreement about two things. First,
they agree that the recording and its transcription do not capture
everything that was said at the meeting. The tape does not
begin at the commencement of the meeting. It does not contain
Borkenhagen’s introductory remarks and the discussion about
the facility’s present equipment.13 In addition, due to the na-
ture of clandestine taping, portions of the recorded discussion
were unintelligible. These missing portions are noted on the
transcription.
Although everyone agrees that the tape and transcript are in-
complete, all of the witnesses who were asked about the accu-
racy of the portions of the tape and transcript that are in exis-
tence confirmed that they are accurate. In particular, Facility
Manager Marach testified that he listened to the tape and read
the transcript. From this, he concluded that “[t]he parts that I
could make out were accurately transcribed.” (Tr. 139.)
Schauer testified that he listened to the tape and verified its
accuracy before turning it over to a union official. After the
union official obtained a transcription, Schauer studied the tape
12 The original tape is GC Exh. 9(a). A transcription of this tape is
GC Exh. 3. Counsel for the General Counsel also offered an annotated
version of the transcription. (GC Exh. 5.) The annotations are de-
signed to show those portions that are asserted to constitute evidence of
the alleged unfair labor practices. I admitted this document only for the
limited purpose of illuminating the General Counsel’s legal arguments.
13 Counsel for the Company also asked Borkenhagen if the recording
began after some discussion of the union campaign. He responded that
this may have been the case. I place little weight on this testimony
since Borkenhagen was never asked to relate the content of any such
preliminary discussion of the campaign.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 452
and transcript and made corrections to the transcription. These
corrections were incorporated into the completed transcript.
Based on this essentially uncontroverted testimony, I con-
cluded that the tape and transcript were admissible under the
framework established in Rules 1001–1003 of the Federal
Rules of Evidence. I reached this conclusion because the accu-
racy of the transcribed portions of the meeting is not in dispute.
I have also considered the issue of the incompleteness of the
tape and transcription. At trial, counsel for the Company raised
the possibility that other things were said that could be viewed
as affirmative defenses to some of the General Counsel’s alle-
gations. Nevertheless, no evidence was presented that the tran-
scribed portions of the meeting left out any conversations that
would have constituted any such affirmative defense. In fact,
there is no evidence that any missing portion of the meeting
involved statements that would materially affect the result in
this case. There is nothing to suggest that the lack of complete-
ness undermined the fundamental accuracy and reliability of
the tape and transcript or that the tape and transcript failed to
correctly convey the tenor and import of the Company’s pres-
entation during the meeting.
As reflected in the tape and transcription, Borkenhagen re-
peatedly addressed two themes that are contended to be im-
proper as constituting both unfair labor practices and conduct
affecting the fairness of the representation election. Borkenha-
gen offered to “do whatever I possibly can . . . to address any
concerns or issues . . . that ha[ve] happened in the past . . .
[w]hether it be equipment, personnel, needs, changes in the
company, changes in the economy . . . .” (GC Exh. 3 p. 1.)
Shortly thereafter, he observed that “now is the time to bring
some of those questions out.” (GC Exh. 3 p. 1.)
The second theme that Borkenhagen articulated concerned
his view of how negotiations would proceed if the employees
voted in favor of union representation. He informed the meet-
ing participants that he had experience with such matters and
that:

whatever we currently have now is basically thrown out the
window, we start all over with the negotiations, and every-
thing is negotiated, everything’s negotiated. Its just not a
format or foundation you start from, its zero.

(GC Exh. 3 p. 2.) Not long after, Borkenhagen returned to this
point, asserting that in the event the Union becomes involved,

basically what that really does is freezes everything currently
the way it is. So if it goes on for three months, it goes on for
six months, it goes on for a year, two years, whatever, ah, [un-
intelligible portion] from a legal perspective I, I don’t know
what the lengths of times are, but I know that it can go at least
to the minimum of as much as a year and possibly more de-
pending on what the circumstances and issues may become,
but everything is basically frozen from the point on. You start
from ground zero. Benefits, wages, ah, everything and then
you negotiate and whatever you negotiate, you negotiate and
whatever you agree on or company and Union agree on that’s
where we start. At least there’s a foundation. It doesn’t mean
it’s going to get signed and it doesn’t mean the company is
going to agree to anything that the Union comes up with.
They don’t have to agree to anything, they’re not in a position
to. Ah, but that’s when they do come to a mutual agreement
is when the negotiations, at least have a star[t]ing plateau.
Any other questions?

(GC Exh. 3 p. 3.) In response to a question from an employee,
Borkenhagen reiterated this view of the negotiating process.
He opined that “really you start from scratch.” (GC Exh. 3 p.
9.) Putting it yet another way, he observed that the parties
“throw everything out and start over.” (GC Exh. 3 p. 9.)
Finally, near the conclusion of the meeting, Borkenhagen as-
serted that it is possible that the Company and the Union might
never reach an agreement. Ominously, he went on to state,
“[b]ut I do know if that’s the case, the company is going to do
whatever it has to to survive.” (GC Exh. 3 p. 9.)
Immediately after the conclusion of this meeting, the Com-
pany convened a second lunchroom meeting with another
group of affected employees. The same management represen-
tatives attended. Attending employees included David Brick-
ler, Steve Dziekan, and Jose Rivera. The contents of this meet-
ing were not recorded or transcribed. Brickler testified that
Borkenhagen did not tell the employees that if they voted for
union representation, bargaining “would begin from scratch.”
He also indicated that Borkenhagen never told them that wages
would be “frozen.” (Tr. 180.) On the other hand, Dziekan
testified that Borkenhagen told them that:

Nothing changes as we are right now as a company. No pay
changes. No benefit. Everything stays the same until nego-
tiations are finalized[.] [Tr. 186.]

One week after these kickoff meetings, the Company held a
second set of meetings designed to address the organizing cam-
paign. The meetings were held in the same location and at the
same times as the first set. The same management officials and
employees attended. Unlike the first set of meetings, no tape
recording was made.
Demeter described the purpose of the second meetings as
“primarily to go over our benefit package.” (Tr. 142.) Borken-
hagen testified that he began each of these meetings by again
introducing himself and Demeter. Demeter then made a pres-
entation about such company benefits as health insurance, the
401(k) plan, and the employee assistance programs. At the
conclusion of this overview, Demeter brought up the subject of
union negotiations. He testified that he raised this issue “be-
cause I suggested to the attendees that everything I just pre-
sented would be negotiated” if the Union were to become the
representative of the employees. (Tr. 142.) Borkenhagen de-
scribed Demeter’s comments about this issue, testifying that
Demeter told the employees:

that everything had to be negotiated. Could make more, could
make less. Don’t know. Everything had to be negotiated.

(Tr. 158–159.) Significantly, Borkenhagen also testified that
beyond the explanation of the Company’s benefit package, the
meeting had another purpose. This purpose was to suggest to
the employees that:

if there [are] any issues or problems and they don’t want to
confront us there [are] other methods and means within the
organization to pursue. [Tr. 158.]

SUPERIOR EMERALD PARK LANDFILL, LLC 453
Around the time of the second set of meetings, approxi-
mately 2 weeks prior to the election, the Company installed a
locked bulletin board in the lunchroom. The Company posted
two documents regarding the organizing campaign on this bul-
letin board.14 One of these documents is entitled,
“QUESTIONS AND ANSWERS.” (Emphasis in the original.)
(GC Exh. 6.) This posed a set of questions and responses re-
garding the consequences of a union victory in the election.
The first question asked what would happen to “current wages
if the Union is voted in.” The response was:

Your current wages will remain the same with no changes
during negotiation of a contract. No changes can be imple-
mented by Superior Emerald Park Landfill in any benefits! It
is possible that negotiations may take a long time—even up to
one year. Your wages and benefits would be frozen at current
wage policy levels for the period of negotiations until a final
agreement is reached.

(GC Exh. 6 p. 1.) Another of the questions posed in the docu-
ment concerned the effect of an impasse between the Union and
the Company. The answer to this question indicated that the
Union would have two choices, either to accept the Company’s
final offer or to “call you out on economic strike.” Among the
consequences of such a strike, the Company asserted that:

You can be permanently replaced on your job; so when the
strike ends, you may not have a job to return to. By law, Su-
perior Emerald Park Landfill is not required to rehire you if
you have been permanently replaced.

(GC Exh. 6 p. 2.) The final question addressed in the document
asked what voting for union representation would do for the
employees. The response observed that the Company hoped
that it had shown that a union was not the answer to existing
problems. It went on to note:

Of course, things here at Superior Emerald Park Landfill are
not perfect. But we have tried—and will continue to try—to
make changes, improvements and corrections whenever we
can. We believe we can do that best by working together with
you directly without a third party that may not share the same
concerns as we do. [GC Exh. 6 p. 2.]

The second company document posted on the lunchroom
bulletin board was entitled, “WHAT ARE ‘UNION
NEGOTIATIONS’ ALL ABOUT?” (Emphasis in the original.)
(R. Exh. 2.) This addressed a number of issues. The first of
these concerned the timing of a collective-bargaining agree-
ment. It asserted that the Union would try to persuade employ-
ees that it would obtain a collective-bargaining agreement that
will “get you more” and that this would happen “‘right away.’”
The Company responded that:

THIS IS NOT TRUE!!! Here are some hard FACTS
concerning what Union negotiations are all about.
Negotiations do not begin “right away.” There might
be all sorts of court fights. It is not at all unusual for it to

14 The record does not disclose the order in which the documents
were posted. It is apparent from their contents that both were posted
during the period leading up to the August 28 election.
take many months, even years, from election day to the
day a contract is signed.

(Emphasis in the original.) (R. Exh. 2.) The document goes on
to note that the parties could reach impasse and that the Union
could call a strike. In that event,

Superior Emerald Park Landfill may exercise its right to per-
manently replace economic strikers. This means that the
strikers will have lost their jobs, at least until their replace-
ments quit! [R. Exh. 2.]

As would be expected, the representation election campaign
involved dissemination of literature by both sides. Lauer testi-
fied that early on the morning of August 23 he placed union
literature on a lunchroom table. This consisted of brochures
describing the Union’s programs and benefits. (GC Exh. 8.)
Lauer reported that he placed a quantity of these designed to
provide one for each prospective voter. When Lauer returned
to the lunchroom to eat his lunch he observed that the literature
was gone.
Facility Manager Marach testified that he removed the union
materials from the lunchroom table. He reported that he of-
fered to return the materials to Schauer. Schauer confirmed a
conversation with Marach and indicated that Marach told him
that, “we cannot have any union literature on company prop-
erty.” (Tr. 53.) Marach testified that he informed Schauer
about a much more limited restriction. He indicated that such
materials were not permitted “in the lunchroom on the lunch-
room tables.” (Tr. 122.)
Marach also spoke to Lauer about the literature. Lauer testi-
fied that Marach told him that the materials were not “allowed
on company property and that he had the material and if I
wanted it back he’d give it back.” (Tr. 74.)
At trial, Marach was asked if he told Lauer and Schauer that
union literature “was excluded from company property.” He
responded that he had said this. He was asked why he made
this response and he noted that union literature “was not al-
lowed on company property in accordance with our employee
handbook.” (Tr. 125.) Marach reported that the reason for the
restriction on placement of materials on the lunchroom tables
was that these tables were used by the Company as a means to
distribute written information to employees about “benefits,
programs offered by the company, notices of safety meet-
ings . . . [t]hings of that nature.” (Tr. 123.) Nevertheless, Ma-
rach conceded that he was aware of two other instances of em-
ployee use of the tables for distribution of materials. One such
use concerned placement of a signup sheet for Girl Scout cook-
ies. The second use involved a picture of a stock car that is
owned by two employees and is sponsored by the Lions Club.
The Company had not taken any action to remove these items
from the lunchroom tables.
Other witnesses confirmed the uses of the lunchroom tables
for distribution of information. Schauer agreed that “at times”
the Company used the tables “as a kind of mailbox for employ-
ees.” (Tr. 60–61.) He also noted that he had observed use of
the tables for Girl Scout cookie materials and information re-
garding Lions Club functions. By the same token, Dziekan
testified that the Company uses the tables to distribute items.
The only other things he has observed on the tables are the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 454
union literature and the Girl Scout cookie signup sheet. When
asked if the Company had a policy about placing noncompany
materials on the tables, he indicated that there was “[n]othing
really carved in stone that you couldn’t do that.” (Tr. 189.)
Gene Zabler also testified that a Girl Scout cookie signup sheet
had been placed on a lunchroom table.
Three days after the controversy regarding union literature
on lunchroom tables, the Company convened its third and final
set of meetings in response to the organizing campaign. These
meetings were held at the same time and place as the earlier
meetings. The first of the two meetings was attended by Bork-
enhagen, Marach, Lauer, Schauer, and Gene and Tina Zabler.
Once again, Schauer brought a concealed tape machine and
recorded the meeting.15 As with the earlier tape and transcript,
nobody has contended that the transcription of portions of the
meeting that could be recovered from the tape is inaccurate in
any way. The evidence also shows that, like the transcription
of the earlier meeting, the transcript is not complete. In fact,
the transcript commences by noting that the “[t]ape started in
mid-stream.” (GC Exh. 4 p. 1.) It also contains notations
showing that portions of the tape were illegible, including por-
tions where too many people were speaking at the same time.
As with the earlier tape and transcript, I concluded that the
General Counsel’s motion to admit this evidence was well sup-
ported. No evidence was presented to suggest that any tran-
scribed statements were incorrect. While the tape did not cap-
ture the beginning of the meeting, it is apparent from the initial
portion of the transcription that at least part of the missing dis-
cussion concerned the type of wheels on a piece of company
equipment and the best way to use that vehicle. There was no
testimony indicating that matters involving the organizing cam-
paign were discussed prior to the commencement of the re-
cording. Likewise, there was no evidence presented suggesting
that the missing portions of the transcript contained any state-
ments that would materially affect the assessment of the propri-
ety of management’s conduct. I conclude that the tape and
transcription convey the substance of the discussion in an accu-
rate and reliable manner, preserving the tone and context of the
Company’s message. As a result, I have admitted the tape and
transcript into evidence.
It is contended that Borkenhagen made a number of state-
ments at the meeting that constituted unfair labor practices and
conduct affecting the fairness of the representation election.
These statements involved several topics. Borkenhagen repeat-
edly took note of his own efforts to obtain more equipment
from other branches of the Company. He listed those items
already acquired and promised to seek more, even though he
indicated that he was angering other company officials in the
process. He also promised to “try and put some justification to
get some additional help,” observing at another point that he
believed that “we’re a little short handed here.” (GC Exh. 4 pp.
3 and 11.) He indicated that getting more staff would not be an

15 The original tape is GC 10(a). The transcription is GC Exh. 4. As
with the transcription of the tape of the earlier meeting, counsel for the
General Counsel also submitted an annotated version of the transcript.
(GC Exh. 5.) I admitted this for the limited purpose of illustrating his
legal arguments.
easy matter, but “I’m gonna try, gonna try, gonna try.” (GC
Exh. 4 p. 3.)
In his talk, Borkenhagen also addressed the recent contro-
versy about the placement of union literature on the lunchroom
tables. He noted that Marach had explained to Schauer and
Lauer that putting this material on the tables was “not allowed”
due to “company policy.” (GC Exh. 4 p. 4.) Indeed, he drew a
direct connection between the decision not to permit such
placement of union literature and the ongoing organizing effort.
He told the employees that, “[w]e’re campaigning[,] we feel we
have to do this [prohibit the materials on lunchroom tables] to
be competitive.” (GC Exh. 4 p. 4.) Lauer asked Borkenhagen
if there was a written memo concerning this issue. Borkenha-
gen simply reiterated that it was “company policy.” (GC Exh.
4 p. 4.)
One of Borkenhagen’s most persistent themes throughout the
meeting was expressed by his repeated pleas to “give me a
chance,” so that he would have “an opportunity to prove my-
self.” (GC Exh. 4 pp. 4, 5, and 12.) He coupled this request for
time to prove himself as the new general manager with the
suggestion that if he failed to satisfy the employees, “you can
bring election up at a later date.” (GC Exh. 4 p. 5.) He summa-
rized this point near the end of his talk as follows:

Thanks guys, I do appreciate it though. I hope you give me
an opportunity to prove myself. Six months from now or a
year from now you can all go through the same process.

(GC Exh. 4 p. 12.) He also promised that, “regardless of what
happens,” he would “constantly come to you guys for ques-
tions.” (GC Exh. 4 p. 15.)
As had become customary, the Company followed this meet-
ing with another meeting involving the remaining affected em-
ployees. The second meeting was not recorded. The Company
introduced a document that sheds light on Borkenhagen’s presen-
tation at this meeting. This document consisted of a copy of
Borkenhagen’s typed notes that he used to guide his remarks
during both meetings on August 26.16 (R. Exh. 3.) Among his
talking points was a discussion of the collective-bargaining proc-
ess. He characterized this by observing that “[i]t’s all negotia-
ble.” (R. Exh. 3 p. 1.) In the event of impasse, the Union would
possess the option of striking. If this occurred, “you can be per-
manently replaced during an economic strike—that’s the law.”
(R. Exh. 3 p. 1.)
Borkenhagen’s notes also contained references to two themes
that he addressed in the first meeting as revealed in the transcript.
He observed that he had been newly installed as general manager
and asked that the employees, “[g]ive me a chance.” This com-
ment is placed directly beneath another note to tell the employees
that his accomplishments in obtaining new equipment were made
because he “saw a need, not as a response to grievances.” (R.
Exh. 3 p. 2.)
Two days after the August 26 meetings, the election was
held, resulting in a tie vote. One other allegation of election
misconduct must be discussed. Schauer testified that he re-
16 The copy placed into evidence contains check marks and high-
lighting that were added after August 26. (R. Exh. 3 p. 2.) I have dis-
regarded these additions.
SUPERIOR EMERALD PARK LANDFILL, LLC 455
ceived an increase in pay “right around our election time.” (Tr.
49.) He reported that Marach told him that his wages were
“under review.” (Tr. 49 and 64.) He noted that this wage re-
view was abnormal, since wages were traditionally reviewed
and adjusted in the spring.17 On further questioning, Schauer
indicated that the wage increase took effect “the week after the
election.” (Tr. 51.) Schauer also reported that he was uncertain
as to the meaning of Marach’s comment that his wages were
being reviewed. He did not know whether this meant that they
were being considered for increase or decrease. In contrast to
Schauer, Marach testified that this conversation about a wage
review took place after the election. He further testified that he
never spoke to any employees about a pay raise prior to the
election. Employee pay raises were announced approximately
4 to 6 days after the election and became effective during the
second week of September.18 Borkenhagen testified that he
decided to grant pay raises because he thought the election was
over and he “wanted to . . . get some parity between the em-
ployees and their wages based on their skills, qualifications and
experience.” (Tr. 172.) When asked if the organizing cam-
paign had anything to do with his decision to grant the raises,
he replied, “Absolutely not.” (Tr. 172.)
After the election, the Union filed unfair labor practice
charges and objections to the fairness of the election. On con-
sideration of the initial charges and subsequent amendments,
the Regional Director filed a complaint and notice of hearing
and an order consolidating the unfair labor practice charges
with the election objections since they are “directly related
and/or identical.” (GC Exh. 1(j) p. 5.)
B. Legal Analysis
With this history of the organizational campaign and the
Company’s response as the backdrop, I will now address each
of the General Counsel’s allegations of impropriety. Although
the allegations are discussed individually, I have been guided
by the requirement that such allegations be measured against
the overall context of the history of labor relations between the
Company and its employees. The Board has held that “the
totality of relevant circumstances” must be appraised and that
written and oral statements should not be viewed in isolation
from each other. Mediplex of Danbury, 314 NLRB 470, 471
(1994); and UARCO, Inc., 286 NLRB 55, 58 (1987), review
denied 865 F.2d 258 (6th Cir. 1988).
In addition to assessment based on overall appraisal of the
events under consideration, I have also considered the unique
aspects of relations between the employer and employees in-
volved during an organizational campaign. The Supreme Court
has outlined the type of realistic appraisal required by noting
that:

[a]ny assessment of the precise scope of employer expression,
of course, must be made in the context of its labor relations

17 This appears to be incorrect. Both Lauer and Marach report that
the annual raises took effect on July 1, 2002.
18 GC Exh. 11 displays the amount of each employee’s raise. While
the amounts varied, all but two of the eight unit employees were
granted some increase in compensation. Lauer and Schauer were
among those who received an increase.
setting. Thus, an employer’s rights cannot outweigh the equal
rights of the employees to associate freely, as those rights are
embodied in S[ection] 7 and protected by S[ection] 8(a)(1)
and the proviso to S[ection] 8(c). And any balancing of those
rights must take into account the economic dependence of the
employees on their employers, and the necessary tendency of
the former, because of that relationship, to pick up intended
implications of the latter that might be more readily dismissed
by a more disinterested ear.
. . . .
Thus, an employer is free to communicate to his employees
any of his general views about unionism or any of his specific
views about a particular union, so long as the communications
do not contain a “threat of reprisal or force or promise of
benefit.”

NLRB v. Gissel Packing Co., 395 U.S. 575, 614 (1969). With
this guidance, I will turn to the allegations set forth in the Gen-
eral Counsel’s complaint.
1. The Company’s no-solicitation rule
Before reaching the events of the actual organizing cam-
paign, the General Counsel contends that the Company’s preex-
isting no-solicitation rule was unlawful. That rule is located in
the Company’s employee handbook. (R. Exh. 1.) The record
does not disclose the length of time this rule has been in effect,
but there is no contention that it was imposed in connection
with the organizing campaign.
In evaluating rules governing employee solicitation, the
Board has defined the legal consequences arising from the use
of two terms-of-art, “working hours” and “working time.”
Superficially, these phrases sound similar. For both legal and
practical reasons, the Board has held that they are actually radi-
cally dissimilar. In its leading case on this question, the Board
described and reaffirmed its previous holdings that no-
solicitation rules using the term “working hours” are presumed
to be unlawful, “because that term connotes periods from the
beginning to the end of workshifts, periods that include the
employees’ own time.” Our Way, Inc., 268 NLRB 394, 395
(1983). By contrast, no-solicitation rules that employ the
phrase “working time” are presumed to be lawful, “because that
term connotes periods when employees are performing actual
job duties, periods which do not include the employees’ own
time such as lunch and break periods.” Our Way, Inc., supra at
395. The guiding principle is that rules prohibiting employee
solicitation during working time must “state with sufficient
clarity that employees may solicit on their own time.” Our
Way, Inc., supra at 395.
I will consider the validity of the Company’s rule, while
keeping in mind the Board’s interpretations of these terms-of-
art. The Company’s entire rule is:

Solicitation
In order to prevent disruption of operations, interference with
work, and inconvenience to other employees, solicitation for
any cause or distribution of literature of any kind during
working hours is not permitted. Nor may an employee who is
not on working time, solicit an employee who is on working
time for any cause or distribute literature of any kind to that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 456
person. Working time does not include lunch periods or
breaks. Persons not employed by Superior Services may not
solicit for any purpose or engage in distribution of literature of
any kind on Superior Services’ premises at any time.

(R. Exh. 1.) (Emphasis added.) Unfortunately, the author of
this rule chose to employ both the presumptively valid and the
presumptively invalid phrases. In addition, the writer chose to
properly define the limited scope of the term “working time” as
excluding lunch or breaktime, but failed to provide any limiting
definition for the term “working hours.”
I conclude that by conflating two similar phrases with vastly
different meanings in law and practice, the employer has cre-
ated a substantial ambiguity. In at least three recent decisions,
the Board has emphasized that such an ambiguity created by an
employer renders a work rule invalid. See Altorfer Machinery,
332 NLRB 130 (2000) (ambiguity that puts in doubt employ-
ees’ right to engage in union solicitations is construed against
the employer who formulated the offending provision); Grouse
Mountain Lodge, 333 NLRB 1322 (2001) (ambiguity that puts
in doubt employees’ right to engage in union solicitation with-
out fear of punishment is construed against employer); and
Baptist Medical Center, 338 NLRB 346, 363 (2002) (“[w]here,
as here, the language of a no-solicitation rule is ambiguous and
can reasonably be interpreted by employees in such a way as to
cause them to refrain from exercising their statutory rights, the
rule is deemed to be invalid . . .”).
Other evidence does not overcome the presumption of inva-
lidity created by the ambiguous drafting of the Company’s rule.
The Board has permitted an employer to produce extrinsic evi-
dence that, despite the language of an overbroad rule, it com-
municated to its employees an intension to permit solicitation
during breaks and lunch periods. Our Way, Inc., supra at 395
fn. 6. No such evidence was presented in this case. Further-
more, the Board has observed that the presumption of invalidity
is not rebutted by evidence showing that employees have ig-
nored the no-solicitation rule without incurring disciplinary
consequences from their employer. Ichikoh Mfg., Inc., 312
NLRB 1022 (1993), enf. 41 F.3d 1507 (6th Cir. 1994), and
Altorfer Machinery, supra.
In agreeing with the General Counsel’s assessment of the
Company’s no-solicitation rule, I find the language of the Sec-
ond Circuit to be particularly apt:

The true meaning of the [employer’s] rule might be the sub-
ject of grammatical controversy. However, the employees of
respondent are not grammarians. The rule is at best ambigu-
ous and the risk of ambiguity must be held against the prom-
ulgator of the rule rather than against the employees who are
supposed to abide by it.

NLRB v. Miller, 341 F.2d 870, 874 (2d Cir. 1965). Reading the
Company’s rule in its entirety, employees would have no assur-
ance that solicitations made while they are at lunch or on work-
breaks would not run afoul of the rule. As a result, the rule is
overbroad and unlawful.
2. Preventing distribution of union literature
The General Counsel contends that the Company’s unlawful
effort to prevent prounion solicitations included statements of
two supervisors, Marach and Borkenhagen, informing employ-
ees that distribution of union literature was prohibited on com-
pany property. It is also alleged that Marach removed union
literature that had been placed on the lunchroom tables for dis-
tribution to employees.19
The Board has recognized that there are differences between
oral solicitations and distribution of written materials. Employ-
ers have greater latitude to limit distribution of materials be-
cause of potential workplace hazards arising from litter. As a
result, rules limiting oral solicitations must be confined to em-
ployees’ working time. No-distribution rules may include pro-
hibitions affecting working areas even during nonworking peri-
ods. Hale Nani Rehabilitation & Nursing Center, 326 NLRB
335 fn. 2 (1998). As to nonworking areas, the Board has de-
lineated a broad protection for distribution of literature. In
Mid-Mountain Foods, 332 NLRB 229 (2000), enf. 269 F.3d
1075 (D.C. Cir. 2001),20 it held that

[s]imply put, employees have the right to distribute literature
in nonworking areas . . . . This right would have been contra-
vened in the instant case even if the supervisors involved had
removed both prounion and antiunion literature. In the ab-
sence of a showing (which has not been made here) that the
literature was strewn about in an unsightly or hazardous man-
ner, its removal from employee break areas violates Section
8(a)(1) of the Act.

332 NLRB 229 at 230. Finally, the Board has held that the
employer’s right to preclude distribution of literature in work-
ing areas does not extend to a mixed use area. For example, if
an area is used for production during most of the day, but
serves as a lunchroom during the lunch period, distribution of
literature may not be prohibited. United Parcel Service, 327
NLRB 317 (1998), affd. 228 F.3d 772 (6th Cir. 2000), citing
Rockingham Sleepwear, 188 NLRB 698, 701 (1971).
The evidence in this case shows that on August 23 Lauer
placed brochures describing the Union’s programs and benefits
on a table located in the employees’ lunchroom. He testified
that he left sufficient copies to provide one for each employee
in the proposed bargaining unit. Assuming that he did not
leave one for himself, this would have amounted to seven cop-
ies. It is uncontroverted that Facility Manager Marach confis-
cated these materials.
Lauer and Schauer testified that in separate conversations
Marach told each of them that the brochures were removed
because union literature was not permitted on company prop-
erty. In his own testimony, Marach waffled. At first, he indi-
cated that he merely told Lauer and Schauer that union litera-
ture was not allowed on the lunchroom tables. Later on, he
conceded that he told them that the employee handbook prohib-

19 The complaint states that Marach “implied” that the Company had
removed this literature. (GC Exh. 1(g) p. 3.) In fact, the evidence
showed that Marach directly informed Lauer and Schauer that he had
removed the literature from the lunchroom.
20 The D.C. Circuit enforced the Board’s decision in Mid-Mountain
Foods on other grounds. It indicated that it would “leave to another
day” consideration of the Board’s views concerning the right to distrib-
ute literature in nonworking areas. Mid-Mountain Foods, Inc. v. NLRB,
269 F.3d 1075, 1077 (D.C. Cir. 2001).
SUPERIOR EMERALD PARK LANDFILL, LLC 457
ited the possession of union literature on company property.
Marach also testified that the reason for refusing to allow union
literature on the lunchroom tables was that these tables were
used by the Company to distribute written information to the
employees about programs, benefits, and meetings. Marach did
note that he was aware that employees had used the tables for
placement of literature about Girl Scout cookies and a Lions
Club sponsored stock car.
Viewed in the light most favorable to the Company, the evi-
dence shows that the lunchroom was a mixed use area since
occasional meetings were held there. Such meetings appear to
have been relatively infrequent and there is no doubt that the
primary purpose of the room was as a lunch facility. There is
no evidence whatsoever to indicate that the distribution of a
small number of brochures led to any unsightly, disorganized,
or hazardous condition in the lunchroom. Likewise, there is no
evidence that distribution of these brochures impeded the use of
the tables for distribution of company materials in any signifi-
cant way. For these reasons, the Board’s holding in Mid-
Mountain Foods, supra, precludes the Company from prohibit-
ing distribution of union literature by placing it on the lunch-
room tables.
Beyond the Board’s general rule granting a right to distribute
literature in the manner under discussion, I find that the Com-
pany’s actions constituted unfair labor practices because those
actions were improperly motivated by antiunion animus. The
Board has clearly held that promulgating or enforcing a rule
against distribution of union literature is unlawful if it is done
as a response to union organizing. Waste Management of Palm
Beach, 329 NLRB 198 (1999). The evidence demonstrates that
this is what the Company chose to do. In reaching this conclu-
sion, I place emphasis on the testimony of Dziekan, the Com-
pany’s site foreman. When asked if the Company had a preex-
isting policy against placing literature on the lunchroom tables,
he testified that there was “[n]othing really carved in stone that
you couldn’t do that.” (Tr. 189.) Further evidence of a change
in the Company’s policy at the time of the organizing campaign
was the discussion of the distribution issue that took place at
the employee meeting of August 26. Questions were raised
regarding the recent confiscation of the Union’s brochures.
Borkenhagen reported that Marach had told Lauer and Schauer
that placement of these materials on the tables was prohibited
by “company policy.” (GC Exh. 4 p. 4.) He was challenged
regarding the existence of such a policy. Lauer asked him
whether there was anything in writing. In response, he simply
reiterated that it was company policy to prohibit placement of
the brochures on the lunch tables.
Based on Dziekan’s testimony and Borkenhagen’s evasive
statements during the August 26 meeting, I conclude that there
was no preexisting policy about use of lunchroom tables for
distribution or display of written materials. This conclusion is
bolstered by the evidence that placement of materials involving
other subjects was tolerated and by the fact that the Company
did not offer any evidence of a preexisting policy regarding this
issue.21

21 I recognize that the Company did introduce its written solicitation
policy. I have previously found this to be impermissibly ambiguous.
It is clear that the Company first enforced any purported pol-
icy against distribution of literature on lunchroom tables during
the organizing campaign. The timing of this new policy is
certainly probative of discriminatory intent. Even more tell-
ingly, Borkenhagen told the employees why the policy was
being enforced. He explained that

Its not allowed. Whether you like it or not, this isn’t owned
by the Union. I assure you the Union would not allow me to
go to their building . . . and it is company policy. We’re cam-
paigning[,] we feel we have to do this to be competitive.

(GC Exh. 4 p. 4.)22 By making this statement to its employees,
management clearly revealed the intention motivating the sud-
den enforcement of a policy against distribution of materials by
placement on the lunchroom tables.
Based on the evidence and the reasonable inferences to be
drawn from it, I find that the Company’s behavior mirrors con-
duct found to be unlawful in Cannondale Corp., 310 NLRB
845 (1993). In that case, the Board upheld an administrative
law judge’s conclusion that adoption of a no-distribution rule
was animated by the intention of discouraging union activity
and that the asserted reasons for the rule were pretextual. The
judge observed that

the timing of the promulgation of the rule was closely related
to the union campaign which began shortly before. More-
over, announcement of the rule was accompanied by an an-
nouncement of an antiunion policy that implicitly explains the
reason for the rule. There was no other explanation for the
rule, either in writing or orally, at the time it was announced to
the employees. In these circumstances, it is clear, and I find,
that the rule [was] promulgated to combat the Union and not
for any other purpose.
The Respondent has not been able to show that the rule
was promulgated to maintain production or discipline.
First of all, that reason was not given to the employees at
the time the rule was promulgated and announced. Sec-
ondly, [a supervisor’s] testimony about the reason for the
rule implicates union activity.

310 NLRB at 849. Likewise, Borkenhagen explained that the
purpose of the rule was to prevent the Union from using the
Company’s facility as a platform for advocating representation.
As a result, the Company’s promulgation and enforcement of
the policy was improperly motivated and unlawful. By the
same token, Marach’s and Borkenhagen’s statements to em-
ployees regarding that policy were also unlawful.

Interestingly, the Company also introduced evidence of a provision in
the handbook requiring employer authorization for placement of any
materials on the Company’s bulletin board. (R. Exh. 1.) In context, the
absence of a provision regarding the need for similar employer permis-
sion for placement of articles on the lunchroom tables is noteworthy.
22 Although not material in any event, I reject the logic of Borkenha-
gen’s analogy between the Union’s offices and the Company’s prem-
ises. His attempt to equate the two facilities ignores the Company’s
significance as the workplace. It was the only site with obvious access
to the entire work force, including union sympathizers, union oppo-
nents, and undecided employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 458
3. Alleged coercive interrogations
The General Counsel contends that Borkenhagen engaged in
a series of coercive interrogations of Schauer and Lauer. In
support of this allegation, Lauer and Schauer testified that
Borkenhagen spoke to the two union activists in the lunchroom.
He introduced himself to the two men and expressed an inten-
tion to make changes in the workplace. He offered to try to
work out any differences. Toward the end of the conversation,
he asked the men if they had “a meeting that night.” (Tr. 71.)
Schauer replied in an evasive manner that avoided confirming
the existence of the planned meeting.
Lauer and Schauer also testified that they had a second
lunchroom conversation with Borkenhagen a week later.
Schauer contends that Borkenhagen again asked the men
“where and when” a union meeting would be held. (Tr. 33.)
He reported that he responded in the same manner as during the
first conversation. Lauer described this meeting in his testi-
mony but did not indicate that Borkenhagen asked any ques-
tions regarding union meetings. Schauer also described a third
meeting of the three men. He did not report any questioning by
Borkenhagen during that discussion. Borkenhagen testified
that he never asked questions about union meetings, explaining
that such information was “irrelevant to me.” (Tr. 171.)
There is an evident conflict in the testimony of the three men
involved in these conversations. I have already noted that
Schauer was a poor historian.23 This impression is reinforced
by the fact that he testified that Borkenhagen asked the same
question during each of the first two meetings and received the
same response. Unlike Schauer, I have concluded that Lauer
was a careful, precise, and reliable historian. He corroborated
Schauer’s account of the first conversation. As counsel for the
Company notes, it is therefore striking that he failed to corrobo-
rate Schauer’s assertion that Borkenhagen repeated his ques-
tioning during the second conversation. As to Borkenhagen’s
blanket denials, I find his professed indifference to the details
of the organizing campaign at odds with the large quantum of
evidence showing that he spearheaded the Company’s counter-
offensive. On balance, I find that the first alleged interrogation
occurred in the manner described by Schauer and Lauer. I
further find that the second alleged interrogation did not occur.
Schauer has simply confused the contents of two conversations.
Lastly, there was no evidence whatsoever that any interrogation
took place during the third conversation.
Having found that Borkenhagen did interrogate Lauer and
Schauer on one occasion by asking them for information about
the date and place of a union meeting, I must assess the legality
of this questioning. In its leading case in this area, the Board
has eschewed any per se rules about interrogations. Instead, it
has mandated an approach based on assessment of the totality
of the relevant circumstances. Rossmore House, 269 NLRB
1176 (1984), affd. 760 F.2d 1006 (9th Cir. 1985). Among the
factors to be considered are the general context, the nature of
the information being sought, the identity of the questioner, the

23 I find this to be somewhat puzzling since he was clearly aware that
events involved in the organizing campaign could result in litigation. It
will be recalled that Schauer was the individual who taped certain key
conversations.
location of the encounter, and the method of interrogation.
Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964).
Applying this analysis, I note that while the questioner was a
high-ranking supervisor, he asked a single question during an
informal discussion. He directed this question to two open
union activists. There was nothing intimidating or coercive in
the manner of the questioning. I do not find evidence of coer-
cion from Schauer’s decision to reply to the question in an un-
truthful manner. While this has sometimes been construed as
evidence of such coercion, in this situation I adopt the reason-
ing of the Seventh Circuit, noting that the probative value of
this factor is doubtful, since

[a]lthough the assumption is that an intimidated worker is
more likely to lie, one can argue with equal plausibility that it
is the meek who confess—that it requires a brazenness incon-
sistent with an inference of intimidation for a worker to lie to
his supervisor.

NLRB v. Acme Die Casting Corp., 728 F.2d 959, 962 (7th Cir.
1984). I do not find that Schauer’s misleading answer to Bork-
enhagen’s question was the product of intimidation.
Both the General Counsel and the Company cite Board
precedents in support of their characterizations of Borkenha-
gen’s questioning. I find the cases primarily relied on by the
General Counsel to be distinguishable. In Kellwood Co., 299
NLRB 1026 (1990), enf. 948 F.2d 1297 (11th Cir. 1991), the
employee was not an active or open union supporter. He was
taken to a private area for the questioning. The questions were
asked persistently and were designed to ascertain how the em-
ployee planned to vote in the election scheduled for the next
day. These highly intimidating circumstances stand in stark
contrast to the single question propounded during a nonthreat-
ening conversation with two open union activists. Likewise, in
Multi-Ad Services, Inc., 331 NLRB 1226 (2000), enf. 255 F.3d
363 (7th Cir. 2001), the meeting was held in the department
manager’s office. Two management officials interviewed one
employee. During the meeting, “the managers focused on the
topic of union representation and probed the reasons for [the
employee’s] union interest.” 331 NLRB at 1226. As in Kell-
wood, the questions were designed to obtain information about
the employee’s attitude toward union representation. By con-
trast, Borkenhagen’s question did not seek to reveal this type of
highly personal information. In addition, the informal and cas-
ual circumstances clearly contrast with those described in the
referenced precedents.
The Company relies on a recent decision, John W. Hancock,
Jr., Inc., 337 NLRB 1223 (2002). In that case, during an in-
formal discussion, a supervisor asked an employee how many
workers attended a union meeting. The Board noted that

[t]he question arose casually as part of an ordinary conversa-
tion, nothing in the record suggests that [the supervisor’s] tone
was hostile, and no threat of reprisal, explicit or implicit, ac-
companied the question.

337 NLRB, at 1225. The Board noted that the nature of the
supervisor’s question was not coercive since the information
sought was not designed to uncover the union sentiments of any
SUPERIOR EMERALD PARK LANDFILL, LLC 459
individual. The questioning was not found to be unlawful.
These circumstances mirror those involved in this case.
Based on the totality of circumstances, I do not find that
Borkenhagen’s questioning of Lauer and Schauer was coercive
or unlawful. The atmosphere of the questioning, the limited
nature of the single question, the employees’ open union sym-
pathies, and the absence of any threat or intimidation direct this
conclusion.
4. Explicit and implicit preelection promises of benefits
The General Counsel contends that Borkenhagen made
promises of benefits during his three lunchroom conversations
with Lauer and Schauer. In addition, Borkenhagen is alleged to
have made further promises of benefits during his speeches to
employees on August 7 and 26. In each instance, the promised
benefits consisted of improved working conditions, including
additional equipment and personnel.24
Lauer and Schauer testified that during their three lunchroom
discussions, Borkenhagen told the men that he would “make
necessary changes to make it a better place to work.” (Tr. 32.)
Specifically, he indicated that he would try to obtain more
equipment and staff. While Borkenhagen disputed Lauer and
Schauer’s account of his questioning regarding a union meet-
ing, he was not asked to deny, and he did not deny, having
made this commitment to attempt to obtain more equipment
and personnel. I credit Lauer and Schauer’s description of
Borkenhagen’s statements in this regard.
The transcript of Borkenhagen’s comments to employees
during the August 7 meeting shows that he offered to do “what-
ever I possibly can” to address issues involving “equipment,
personnel, needs, changes in the company, changes in the
economy.” (GC Exh. 3 p. 1.) Significantly, he told the em-
ployees that “now is the time to bring some of those questions
out.” (GC Exh. 3 p. 1.) During the August 26 meeting, Bork-
enhagen described items of equipment that he had acquired and
again promised to seek even more. He also noted that it would
be difficult to obtain more staff, but added that, “I’m gonna try,
gonna try, gonna try.” (GC Exh. 4 p. 3.) He repeatedly sug-
gested that the employees give him a chance to prove himself
and he noted that if he failed to satisfy them, “you can bring
election up at a later date.” (GC Exh. 4 p. 5.)
The Supreme Court has held that promises of benefits made
during an organizing campaign may be unlawful, noting that

[t]he danger inherent in well-timed increases in benefits is the
suggestion of a fist inside the velvet glove. Employees are not
likely to miss the inference that the source of benefits now
conferred is also the source from which future benefits must
flow and which may dry up if it is not obliged.

24 Counsel for the Company argues that the General Counsel failed
to prove that Borkenhagen’s statements that he would try to obtain
more equipment and personnel were promises that would be seen to
benefit the employees. This is disingenuous. If Borkenhagen did not
perceive these items to be of value to the employees, why did he re-
peatedly discuss them in the course of his efforts to win the representa-
tion election? It is apparent from the overall context that additional
equipment and more workers constituted something desirable from the
point of view of the existing employees.
NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964). The
fact that an employer couches the promises of benefits in lan-
guage that does not guarantee anything specific does not re-
move the taint of illegality. In Reliance Electric Co., 191
NLRB 44 (1971), enf. 457 F.2d 503 (6th Cir. 1972), at preelec-
tion meetings, management officials told the employees that
they would “look into” or “review” problems. The Board noted
that

such cautious language, or even a refusal to commit Respon-
dent to specific corrective action, does not cancel the employ-
ees’ anticipation of improved conditions if the employees op-
pose or vote against the unions.
Accordingly, in view of the foregoing, particularly the
timing of the February and the May meetings which coin-
cided with the organizational campaigns of the unions, we
find . . . that all of these meetings violated Section 8(a)(1)
of the Act and that the May meetings interfered with the
freedom of choice of the employees in the election.
191 NLRB at 46.
Borkenhagen’s repeated promises to try to obtain more
equipment and staff were made during the context of discus-
sions about the Union’s organizing campaign. An implicit link
was drawn between Borkenhagen’s promises and the upcoming
election. Indeed, during at least one portion of his commentary
on August 7, Borkenhagen made the connection much more
explicit. When he asserted that “now is the time” to raise issues
such as equipment and personnel, he could not have been
clearer in suggesting the linkage between the upcoming elec-
tion and management’s desire to improve employees’ working
conditions. Such a linkage was unlawful.
I have considered Borkenhagen’s status as a new general
manager. His pleas to be given a chance in this new capacity
form a recurring theme in labor law cases. The Board has held
that where such requests for an opportunity to prove oneself are
not coupled with promises of benefits, they are not objection-
able. Noah’s New York Bagels, 324 NLRB 266 (1997), citing
National Micronetics, 277 NLRB 993 (1985). On the other
hand, requests for the employees to give a new manager a
chance to prove himself are unlawful when they are linked to
express and implied promises of benefits. In Reno Hilton, 319
NLRB 1154 (1995), the Board held that

[i]n our view, [a new supervisor’s] request for a chance to
“deliver,” taken in the context of his earlier references to
benefits already bestowed, and in the broader context of the
Respondent’s unlawful promises of benefits, grants of bene-
fits, and implied promises to remedy grievances, would be in-
terpreted by reasonable employees as an implied promise ei-
ther to grant additional benefits or to remedy employees’
grievances, or both. Accordingly, we find that [the] state-
ments violated Section 8(a)(1).

319 NLRB at 1156. As in Reno Hilton, supra, Borkenhagen’s
pleas for time to prove himself were made in the context of
comments alluding to benefits (additional equipment) already
provided and future benefits that he would attempt to obtain
(more equipment and more personnel). Given the context, his
pleas were unlawful. The General Counsel has established that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 460
the Company engaged in improper solicitation of grievances
and promises of benefits as alleged in the complaint.
I note that in concluding that management’s solicitation of
grievances violated the Act, I have considered the Company’s
defense. That defense centered on the contention that none of
the solicitations of grievances:

significantly varie[d] from either the Company Policy, the
past practice of Borkenhagen or the past practice of Gene
Kramer, Borkenhagen’s predecessor.

(R. Br. at 46.) The evidence does not support this assertion.
The Company has a written policy entitled “Complaint/Problem
Solving Procedure.” It simply provides that employees should
not hesitate to discuss problems with their supervisors. It goes
on to instruct that if this procedure does not adequately resolve
a problem, it is appropriate to contact the human resource de-
partment. (R. Exh. 1.) I cannot find that Borkenhagen’s re-
peated solicitations of grievances in the period immediately
preceding the election were made consistently with this policy.
Other than a vague observation that “[c]ommunication is a two-
way street,” the written policy is entirely devoted to the manner
in which employees may initiate discussion of work issues. In
other words, it articulates a passive stance in which the Com-
pany pledges its willingness to receive and discuss complaints
initiated by employees. This is a far cry from the very active
pattern of inviting such complaints initiated by Borkenhagen in
conjunction with the Company’s campaign against union repre-
sentation.
The Company did present witnesses who indicated that
Borkenhagen had occasionally asked individual employees
“how things are going” and if they had “problems and con-
cerns.” (Tr. 106.) Chris Duba testified that this happened at
least weekly. On the other hand, Foreman Dziekan said that it
was “not very often” that Borkenhagen would raise such issues.
(Tr. 189.) Borkenhagen himself essentially confirmed his con-
formity with the Company’s overall passive stance, noting that
he maintained an “open door policy.” (Tr. 157.) The evidence
also showed that Kramer followed a similarly passive practice
regarding employees’ problems. For example, Dziekan testi-
fied that Kramer approached him about such things “[a] couple
of times throughout the years.” (Tr. 186.) David Brickler indi-
cated that Kramer never asked him if he had any problems to
discuss. Gene Zabler described both Kramer’s and Borkenha-
gen’s stance as simply telling employees to see them if they had
any problems or concerns. There was also some testimony that
management would invite employees to raise issues of concern
during quarterly meetings or safety meetings.
I conclude that the Company’s policy as written and prac-
ticed was primarily the adoption of a passive attitude involving
a willingness to address problems when an employee initiated
such a dialogue. Beyond this, Borkenhagen, and to a consid-
erably lesser degree Kramer, would make occasional casual
references to employees regarding the existence of problems or
concerns. This evidence of the Company’s past behavior is a
far cry from the repeated solicitation of grievances made during
the period immediately preceding the election. In particular,
the evidence regarding past practices cannot remove the taint
from solicitations made during Borkenhagen’s obliquely
worded, but nevertheless obvious, conversations with Lauer
and Schauer regarding the union campaign. This is even truer
of his solicitations made during meetings that the Company had
convened for the purpose of presenting its views regarding the
representation issue. Indeed, it must be recalled that during the
first of those meetings, Borkenhagen raised problems involving
equipment, staffing, and other employee needs. Shortly after-
wards, he told the assembled employees that “now is the time
to bring some of those questions out.” (GC Exh. 3 p. 1.)
Additional insight into the Company’s reason for the solici-
tation of grievances was provided by Borkenhagen’s testimony
that one of the purposes of the meeting convened to discuss
benefits with the employees was to suggest to them that if they
did not wish to “confront” their employer regarding outstanding
issues or problems, there were “other methods and means
within the organization to pursue.” (Tr. 158.) This testimony
draws the clear connection between the solicitation of griev-
ances and the Company’s desire to defeat the organizational
campaign.
The evidence will not support a finding that the solicitations
of grievances at issue were made in conformity to any preexist-
ing policy or practice. Instead, the evidence demonstrates that
they were made for the purpose of interfering with the employ-
ees’ Section 7 rights.
5. The Company’s descriptions of the consequences
of union representation
The General Counsel contends that the Company made in-
correct and improper predictions regarding the consequences of
a union victory in the representation election. Specifically, it is
alleged that during the two meetings with employees on August
7, Borkenhagen indicated that the Company would bargain
from scratch, would freeze wages and benefits, and might never
reach agreement with the Union. It is also alleged that the
Company posted campaign literature that mischaracterized the
law regarding replacement of economic strikers in such a man-
ner that the Company threatened its employees with discharge
in the event the Union called them out on strike.
Borkenhagen’s assertions regarding the collective-bargaining
process made during the first employee meeting are preserved
on the transcript of Schauer’s tape recording. After he solicited
grievances and made promises of benefits, he turned to the
question of how things would proceed if the Union were
elected as the employees’ representative. He noted that he had
past experience with the collective-bargaining process. He
asserted that “whatever we currently have now is basically
thrown out the window” and that the “foundation you start
from, its zero.” (GC Exh. 3 p. 2.) He went on to tell the em-
ployees that everything is frozen “currently the way it is.” (GC
Exh. 3 p. 3.) This freeze could last for a year, “or possibly
more.” (GC Exh. 3 p. 3.) In response to an employee’s ques-
tion about this, Borkenhagen reiterated that, “really you start
from scratch.” (GC Exh. 3 p. 9.) Near the end of the discus-
sion, he told the employees that it was possible that the Com-
pany and the Union might never reach any agreement. He pre-
dicted that if this should happen, “the company is going to do
whatever it has to to survive.” (GC Exh. 3 p. 9.)
SUPERIOR EMERALD PARK LANDFILL, LLC 461
While no tape or transcript of the second meeting was made,
I conclude that Borkenhagen made similar assertions regarding
the consequences of a union victory in the representation elec-
tion. I credit Dziekan’s testimony that Borkenhagen told the
employees that there would be “[n]o pay changes. No benefit.
Everything stays the same until negotiations are finalized.” (Tr.
186.) This is entirely consistent with the tenor and import of
his remarks as contained in the transcription of the first meet-
ing. It is logical to conclude that Borkenhagen would not have
significantly varied his presentation to the two groups of simi-
larly situated employees.
In assessing Borkenhagen’s statements on August 7, I have
also considered the Company’s written comments on these
same campaign issues. In a preelection posting, the Company
informed its employees that “[y]our current wages will remain
the same with no changes during negotiation of a contract.”
Several sentences later, this was stated another way. Employ-
ees were told that “[y]our wages and benefits would be frozen
at current wage policy levels for the period of negotiations until
a final agreement is reached.” The document also asserts that
negotiations could last “even up to one year.” (GC Exh. 6 p. 1.)
In another campaign posting, the Company warned that it could
take “many months, even years, from election day to the day a
contract is signed.” (R. Exh. 2.)
In assessing employer campaign assertions of the type made
by Borkenhagen, the Board has stressed that context is all im-
portant. It has noted that

[a]n employer can tell employees that bargaining will begin
from “scratch” or “zero” but the statements cannot be made in
a coercive context or in a manner designed to convey to em-
ployees a threat that they will be deprived of existing benefits
if they vote for the union.

Somerset Welding & Steel, Inc., 314 NLRB 829, 832 (1994).
(Citations omitted.) Similar considerations apply to assertions
regarding a freeze of wages or benefits. As former Chairman
Stephens noted in a concurring opinion, the Board has held that

in some circumstances, comments referring to a “freeze” may
well indicate an employer’s retaliatory intent to withhold pe-
riodic wage increases from employees simply because they
have chosen union representation . . . . In other circum-
stances, however, an employer may simply be alluding to the
fact that the advent of a union in the workplace will interject
an additional, perhaps time consuming step in the process by
which customary wage increases are implemented.

Mantrose-Haeuser Co., 306 NLRB 377, 378 fn. 1 (1992), con-
curring opinion.
I find that the key consideration in assessing Borkenhagen’s
assertions about bargaining from scratch and the freezing of
wages and benefits concerns the message he conveyed regard-
ing the Company’s preexisting policy of performing annual
wage reviews and granting appropriate pay increases based on
those reviews. The Company’s vice president for human re-
sources testified that the Company’s “[c]urrent policy calls for
a review of performance of every employee in early summer
with wage increase process the first pay period after July 1st.”
(Tr. 144.) He testified that this policy has been in effect for at
least 4 years. I find that Borkenhagen’s remarks, taken in the
context of the Company’s written campaign literature, were
designed to sow doubt in the employees’ minds regarding the
continued application of this annual wage review and increase
policy. The overall impression to be gained from his remarks
and the Company’s written assertions is that pay would be fro-
zen and would remain frozen until a contract was achieved.
Furthermore, the Company went to considerable pains to em-
phasize that this process could take a year or even longer. The
choice of this time period conveyed a subtle, yet important,
message. The election was scheduled for a date 10 months in
advance of the next annual wage review and increase. Thus, if
a freeze could remain in effect for a year or longer, employees
were left with the distinct possibility that they would be forego-
ing the 2003 wage review process.
In reaching this conclusion, I recognize that at one point in
its literature the Company made a more precise statement re-
garding the annual review process. In its preelection posting, it
told the employees that wages would be frozen “at current
wage policy levels.” (GC Exh. 6 p. 1.) This may be read to
mean that annual reviews would be preserved. However, this
language was immediately preceded by a statement that “cur-
rent wages will remain the same with no changes during nego-
tiation of a contract.” (GC Exh. 6 p. 1.) This bold statement,
coupled with Borkenhagen’s similar assertions, vitiates any
curative effect of the Company’s one-time formulation of a
more accurate comment.25
The Company’s statements and its attempt to defend those
statements in this case bear notable resemblance to the facts in
Teksid Aluminum Foundry, 311 NLRB 711 (1993). In that
case, the company told its employees that wages would be fro-
zen until an agreement with the union was reached. It warned
that negotiations could take months or even years. At trial, the
company contended that these statements simply meant that the
company’s practice of granting preset step increases would
continue during negotiations. The Board affirmed the adminis-
trative law judge’s rejection of this position. In discussing the
company’s argument, the judge noted that

[w]hile that is a permissible reading, it represents an attempt
to clarify ambiguity. The workers to whom the notice was
addressed reasonably could infer from the language used that
step increases were frozen indefinitely in the event they chose
to be represented by the Union. Accordingly, and especially
since the notice was posted in close proximity to the represen-
tation election set for September 1, I find it an unlawful threat
of resulting wage losses, as alleged in paragraph 18 of the
complaint.

311 NLRB at 717. As yet another administrative law judge has
noted, the vice in the presentation made by this respondent was
its failure to adequately convey the real meaning of the concept
of a “freeze” during negotiations. The judge noted that the
management speaker could have told the employees that sched-

25 The one more accurate formulation does not approach the standard
for an effective repudiation of prior unlawful statements, since it was
anything but “unambiguous.” Passavant Memorial Area Hospital, 237
NLRB 138 (1978).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 462
uled pay raises would continue as in the past. Failing that, the
speaker could have simply informed the workers that the com-
pany would

be guided by the principle that the granting of benefits would
be decided as if the Union were not in the picture with the
pending election. Even this more general answer would have
been satisfactory. To answer the question, however, that
“everything is negotiable,” reasonably leaves in the minds of
the employees (who are not law professors or grammarians)
that even scheduled pay increases would be “negotiable.”

Advo System, Inc., 297 NLRB 926, 940 (1990).
Viewing all of Borkenhagen’s remarks together and in con-
text with other representations made by the Company, I con-
clude that the General Counsel has established that the Respon-
dent mischaracterized the consequences of a union victory in
the representation election and threatened employees with loss
of wages and benefits in a manner designed to interfere with the
employees’ Section 7 rights.
The General Counsel contends that the Company’s preelec-
tion posting contained yet another unlawful threat to the em-
ployees. The posting noted that in the event of a bargaining
impasse, the Union could “call you out on economic strike.” If
so, the Company advised that it would have the option of hiring
permanent replacements. In that event, “when the strike ends,
you may not have a job to return to,” since the law does not
require the Company to “rehire you if you have been perma-
nently replaced.” (GC Exh. 6 p. 2.)
The leading case whereby the Board established the permis-
sible scope of an employer’s predictions regarding the conse-
quences of an economic strike is Eagle Comtronics, Inc., 263
NLRB 515 (1982). The Board held that an employer does not
violate the Act by telling employees that they are subject to
permanent replacement if they go on strike. Furthermore, an
employer need not fully explain to employees the nature and
scope of the Act’s protections for replaced strikers. As a result,
employer statements about job status after a strike are accept-
able so long as they “are consistent with the law.” 263 NLRB
at 516. However, the Board noted that an example of a prohib-
ited statement was a comment warning that permanently re-
placed strikers “would permanently lose their jobs.” 263
NLRB 516 at fn. 8. Assertions of this nature are impermissible
since they are inconsistent with the law regarding the status of
economic strikers. In Laidlaw Corp., 171 NLRB 1366 (1968),
the Board held that such strikers retained certain reinstatement
rights even if they had been permanently replaced during the
work stoppage. Recently, the Board summarized its position on
this issue by noting that:

It is settled that both economic strikers and unfair labor
practice strikers retain their status as “employees” under
Section 2(3) of the Act . . . . As a result, an employer vio-
lates Section 8(a)(3) and (1) of the Act by failing to imme-
diately reinstate strikers upon their unconditional offer to
return to work, unless the employer establishes a legiti-
mate and substantial business justification for failing to do
so.
The Board has recognized that one legitimate and sub-
stantial justification for not immediately reinstating former
strikers is a bona fide absence of available work for the
strikers in their pre-strike or substantially equivalent posi-
tions . . . . However, a striker’s right to reinstatement does
not expire simply because no suitable work is available
when he unconditionally offers to return to work. His
right to reinstatement continues until his position or a sub-
stantially equivalent position becomes available.

Zimmerman Plumbing Co., 334 NLRB 586, 588 (2001). [In-
ternal citations omitted.]
Other Board decisions have defined the scope of permissible
employer assertions regarding the consequences of an eco-
nomic strike. In John W. Galbreath & Co., 288 NLRB 876
(1988), the Board found no violation where the company told
employees that permanently replaced strikers “are not dis-
charged, technically speaking. But they’re not working.” In
recent cases, the Board has reiterated that an employer may
inform employees that they may be permanently replaced with-
out also telling them that they would retain employment rights.
Unifirst Corp., 335 NLRB 706 (2001), citing Quirk Tire, 330
NLRB 917 (2000), enfd. in part 241 F.3d 41 (1st Cir. 2001).
While it is apparent that the Board has preserved a substan-
tial area of employer freedom of expression in this situation, I
find that the Company exceeded these bounds. By coupling a
warning that “you may not have a job to return to” with an
assertion that the Company is not “required to rehire you if you
have been permanently replaced,” the preelection posting failed
to conform to the standards established by the Board. In Lar-
son Tool & Stamping Co., 296 NLRB 895 (1989), the Board
held that a reference to loss of employment was impermissible
since it warns of job loss while leaving the employees “on their
own to divine that the ‘loss’ is somehow less than total because
it is conditioned by a right to return to work after the replace-
ment’s departure.” In Baddour, Inc., 303 NLRB 275 (1991),
employees were told that they “could end up losing your job by
being replaced with a new permanent worker.” The Board
found a violation of the Act, observing that

[t]he phrase “lose your job” conveys to the ordinary employee
the clear message that employment will be terminated. Fur-
ther, if the employee is also told that his/her job will be lost
because of replacement by a “permanent” worker, the mes-
sage is reinforced. In these circumstances, where the single
reference to permanent replacement is coupled with a threat of
job loss, it is not reasonable to suppose that the ordinary em-
ployee will interpret the words to mean that he/she has a Laid-
law right to return to the job.

Id. When the Company told its employees that if they go on
strike, they might not have a job to return to because the Com-
pany would not be required to rehire them if they had been
permanently replaced, the Company presented an incomplete
and misleading picture designed to interfere with the employ-
ees’ Section 7 rights.26

26 Counsel for the Company cites Fiber-Lam, Inc., 301 NLRB 94
(1991), in support of the legality of the Company’s comments. (R. Br.
at 62–63.) He correctly notes that much of the written commentary
permitted in Fiber-Lam mirrors the language of the Respondent’s
preelection posting. However, he omits the portion of the statement
SUPERIOR EMERALD PARK LANDFILL, LLC 463
In reaching this conclusion, I have considered any possible
ameliorative effect of the Company’s posted message concern-
ing this issue. In that posting, it told the employees that in the
event of an economic strike, they could be permanently re-
placed and that “[t]his means that the strikers will have lost
their jobs, at least until their replacements quit!” (R. Exh. 2.)
This statement continues to assert that among the consequences
of a strike was the possibility that the employees could have
“lost their jobs.” While it places limits on this adverse conse-
quence, it fails to meet the Board’s requirement that in order to
be effective, repudiation of improper conduct must be timely,
unambiguous, and specific in nature.27 Passavant Memorial
Area Hospital, 237 NLRB 138 (1978).
6. Changes in employee compensation
The General Counsel contends that the Company made im-
proper statements concerning employees’ compensation and
took certain action to increase that compensation in an unlawful
manner. The first such allegation is that, at “[a]bout the end of
August 2002 a more specific date being presently unknown,”
Marach “threatened” Schauer by telling him that his wage level
would be reviewed. (GC Exh. 1(g) p. 4.) It is further alleged
that during the same uncertain timeframe at the end of August
2002 the Company granted pay raises to certain employees.
Finally, it is alleged that on August 30, 2002, Marach told an
employee that he would be receiving a wage increase.
As was characteristic of his testimony concerning the
chronological sequence of other events, Schauer was unable to
pinpoint whether his conversation with Marach about a wage
review took place before or after the election. He did testify
that Marach told him that Borkenhagen was reviewing his level
of compensation. Marach testified that he never said anything
to any employee regarding levels of compensation until after
the August 28 election. Given my overall evaluation of
Schauer’s reliability as to evidence regarding chronology, I
credit March. It follows that I find that the Company did not
state that it would review compensation levels, nor did it an-
nounce any change in those levels prior to the August 28 elec-
tion.28

that led the Board to find the entire contents permissible. That portion
reads, “[d]uring an economic strike the striker remains an employee,
unless fired for misconduct, with a right to reinstatement under certain
conditions.” Id. Nothing of the sort is to be found in the Respondent’s
otherwise similarly written statement. Its absence is dispositive.
27 In fact, the Company’s posting is not an accurate description of
the full extent of the Laidlaw protections. A Laidlaw vacancy arises
not merely when the striker’s replacement quits, but also when an
equivalent job becomes available due to the employer’s expansion of its
work force or its discharge of another employee. In addition, such a
vacancy may be created when an employee holding an equivalent job
decides to quit. Pirelli Cable Corp., 331 NLRB 1538, 1540 (2000),
and the cases cited therein.
28 I also do not credit any assertion that the Company threatened to
adjust wages downward. There is nothing to support this. The Com-
pany’s strategy in general was marked by far more efforts to offer
inducements than threats in order to obtain the result it desired. The
fact that the Company granted a wage increase immediately after the
election also suggests that the wage adjustment review under discussion
was for the purpose of increasing wages.
It is uncontroverted that, immediately after the election, the
Company granted wage increases to six of the eight members
of the proposed bargaining unit. Marach testified that he an-
nounced these increases approximately 4 to 6 days after the
election. They became effective as of the September 13, 2002
pay period. (GC Exh. 11.) Borkenhagen testified that he
granted these raises because he wished “to get some parity
between the employees and their wages based on their skills,
qualifications and experience.” He “[a]bsolutely” denied any
intent to affect the organizing campaign. (Tr. 172.)
I cannot credit Borkenhagen’s testimony that he granted the
postelection wage increases solely to achieve parity among the
employees. For one thing, he never explained how this was
accomplished. Prior to the raises, employee compensation
ranged from $8.40 to $18.46 per hour. After the raises, it
ranged from $9 to $18.46 per hour. If there was any significant
increase in parity, the Company failed to show it. By contrast,
the timing of the wage increases is highly suggestive of an im-
proper motive. The raises were announced within 4 to 6 days
of the polling. Section 102.69(a) of the Board’s Rules and
Regulations provides that any objections to the conduct of an
election must be filed within 7 days of the date of the election.
Thus, the raise was granted prior to the expiration of the filing
deadline for objections. It must also be recalled that the elec-
tion had resulted in a tie vote. I find it more likely than not that
the raises were granted in an effort to influence a second elec-
tion if one were to result from the filing of any objections.
As the Seventh Circuit has noted, “[b]enefits conferred to
erode union support in the event of a second election may also
constitute an unfair labor practice.” NLRB v. Wis-Pak Foods,
Inc., 125 F.3d 518, 525 (7th Cir. 1997). In Wis-Pak Foods,
election objections had been filed and were pending. I recog-
nize that in this case no objections had yet been filed. I do not
think this to be a dispositive difference. The Board’s Rules and
Regulations afford clear guidance to employers. Section
102.69 provides that once a question concerning representation
has been finally resolved, the Regional Director shall issue a
certification of the results of the election. Once this document
is issued, “the proceeding will thereupon be closed.” Thus, the
Board’s procedures provide an employer with a clear standard
for basing any decision to undertake post election changes,
including raises in compensation. When the Respondent an-
nounced a pay raise prior to the termination of the period for
filing objections and prior to the issuance of a certification of
the results of the election, it assumed the risk associated with
the timing of the raises. This is even more evident when one
considers that the Company presented no evidence suggesting
that the announcement of the raises could not have been de-
layed until certification of the election results. See Triangle
Plastics, Inc., 166 NLRB 768, 775 (1967), enf. 406 F.2d 1100
(6th Cir. 1969).
I conclude that the General Counsel has failed to establish
that the Company threatened or promised any wage adjustment
prior to the date of the election. I further conclude that the
General Counsel did establish that the Company announced and
implemented postelection wage increases for the purpose of
eroding union support in the event of a second election. This
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 464
constituted a promise of benefits and a subsequent grant of
benefits in violation of the Act.
III. OBJECTIONS TO THE ELECTION
The Board conducted an election at the Company’s facility
on August 28, 2002. As the vote count revealed a tie, the Un-
ion failed to obtain a majority. The Union filed timely objec-
tions to the conduct of the election on September 4. Additional
objections were filed on September 12 and October 31. While
the Union subsequently withdrew certain of its objections, the
Regional Director added additional objections based on his
investigation. As the Regional Director noted in his report, the
objections are essentially identical to the allegations regarding
unfair labor practices committed by the Company.
I have found that the Company committed unfair labor prac-
tices consisting of the promulgation, maintenance, and en-
forcement of an overbroad prohibition on solicitation and dis-
tribution of literature, the grant of a wage increase,29 and work-
place improvements, as well as, repeated solicitation of griev-
ances and promise of additional benefits in order to discourage
union activity, and repeated threats to freeze wages and bene-
fits, bargain from scratch, refuse to reach a collective-
bargaining agreement, and terminate employees in the event of
an economic strike. The objections that allege these forms of
misconduct are therefore found to be sustained.
The Board has recently admonished that elections are not to
be set aside lightly. The objecting party bears a heavy burden
of proof and must show that the objectionable conduct affected
the employees in the voting unit. Safeway, Inc., 338 NLRB 525
(2002). In Safeway, the Board noted the continuing validity of
the standard articulated in Clark Equipment Co., 278 NLRB
498, 505 (1986), where the Board held that conduct violative of
Section 8(a)(1) will, a fortiori, constitute conduct that interferes
with the exercise of free and untrammeled choice in an election
unless it is virtually impossible to conclude that the misconduct
could have affected the election results. Among the factors to
be considered are the number of violations, the severity of the
violations, the extent of the dissemination, and the size of the
unit.
The election in this case involved a unit of employees who
split their ballots evenly.30 While I do not find that the Com-
pany’s campaign to persuade the employees to oppose repre-
sentation was grounded in grave or pervasive threats or intimi-
dation, it nevertheless transgressed the permissible boundaries
of conduct in a variety of significant ways. The Company’s
prohibitions on solicitation and distribution of union literature,
including the confiscation of such literature, sent a potent and
improper message to all members of the proposed bargaining
unit. The repeated solicitation of grievances and promises of
benefits made in the direct context of the campaign against the

29 I have determined that the wage increase was announced after the
election had been held. As a result, I will not consider it in evaluating
the Company’s conduct prior to the election.
30 Very recently, the Board has reiterated that the closeness of the
vote is a relevant factor in evaluating the effects of preelection miscon-
duct. Quest International, 338 NLRB 856, 857 (2003), citing Avis
Rent-a-Car System, 280 NLRB 580, 581 (1986). Obviously, here this
factor weighs against the Company.
Union sent a more subtle, but equally powerful and illicit mes-
sage. Lastly, the Company’s misleading and ominous charac-
terizations of the consequences of unionization capped those
efforts. I am compelled to conclude that these unfair labor
practices precluded achievement of the requisite laboratory
conditions and materially undermined the employees’ freedom
of choice. As a result, I will recommend that a second election
be conducted.31
CONCLUSIONS OF LAW
1. By promulgating, maintaining, and enforcing an over-
broad prohibition on solicitation and distribution of literature in
order to discourage union activity, the Company has engaged in
unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and Section 2(6) and (7) of the Act.
2. By granting a wage increase and by soliciting grievances
and promising benefits in order to discourage union activity,
the Company violated Section 8(a)(1) and Section 2(6) and (7)
of the Act.
3. By threatening to freeze wages and benefits, bargain from
scratch, refuse to reach a collective-bargaining agreement, and
terminate employees in the event of an economic strike in order
to discourage union activity, the Company violated Section
8(a)(1) and Section 2(6) and (7) of the Act.
4. By engaging in the pattern of misconduct set forth above,
the Company prevented its employees from freely expressing
their choice in the election conducted on August 28, 2002.
5. The Company did not violate the Act in any other manner
alleged in the complaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
I recommend that the Company be ordered to rescind its
overbroad rule against solicitations contained in its employee
handbook. (R. Exh. 1.)
I also recommend that the Company be ordered to post a no-
tice at its facility in the usual manner. The General Counsel
requested that, in addition to this relief, an order be issued re-
quiring General Manager Robert Borkenhagen to read the no-
tice to the employees. In Ishikawa Gasket America, Inc., 337
NLRB No. 29, slip op. at 2 (2001), the Board noted that this
type of remedy is “extraordinary” and has been reserved for
“egregious” cases. Indeed, in the case relied on by counsel for
the General Counsel, Texas Super Foods, 303 NLRB 209
(1991), the remedy was imposed where the company’s owner
“destroyed” the conditions for a fair election and the Board was
ordering a fourth election. Other cases involving imposition of
this remedy also involved truly outrageous conduct. For exam-
ple, in Domsey Trading Corp., 310 NLRB 777, 779 (1993), enf.
16 F.3d 517 (2d Cir. 1994), the misconduct included “gross and
31 The Union sought a bargaining order pursuant to NLRB v. Gissel
Packing Co., 395 U.S. 575 (1969). In Gissel, the Supreme Court held
that the Board’s authority to issue such an order was contingent on
evidence “showing that at one point the union had a majority.” 395
U.S. at 614. There was no such evidence in this case.
SUPERIOR EMERALD PARK LANDFILL, LLC 465
disgusting, racially and sexually demeaning” behavior and
actual violence directed at union representatives. Nothing re-
motely comparable happened in this case.32 As a result, I de-
cline to recommend this extraordinary remedy.
For the reasons discussed earlier in this decision, I have also
concluded that it is necessary to recommend that the election
held on August 28, 2002, be set aside and that a new election be
held on the terms set forth immediately below.
On these findings of fact and conclusions of law and on the
entire record in this case, I issue the following recommended
direction of second election and order.33
DIRECTION OF SECOND ELECTION
A second election by secret ballot shall be held among the
employees in the unit found appropriate whenever the Regional
Director deems appropriate. The Regional Director shall direct
and supervise the election, subject to the Board’s Rules and
Regulations. Eligible to vote are those employed during the
payroll period ending immediately before the date of the Notice
of Second Election, including employees who did not work
during that period because they were ill, on vacation, or tempo-
rarily laid off. Also eligible are employees engaged in an eco-
nomic strike that began less than 12 months before the date of
the election directed herein and who retained their employee
status during the eligibility period and their replacements.
Those in the military services may vote if they appear in person
at the polls. Ineligible to vote are employees who have quit or
been discharged for cause since the payroll period, striking
employees who have been discharged for cause since the strike
began and who have not been rehired or reinstated before the
election directed herein, and employees engaged in an eco-
nomic strike that began more than 12 months before the elec-
tion directed herein and who have been permanently replaced.
Those eligible shall vote whether they desire to be represented
for collective bargaining by the International Union of Operat-
ing Engineers, Local 139, AFL–CIO.
To ensure that all eligible voters have the opportunity to be
informed of the issues in the exercise of their statutory right to
vote, all parties to the election should have access to a list of
voters and their addresses that may be used to communicate
with them. Excelsior Underwear, 156 NLRB 1236 (1966);
NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969). Accord-
ingly, it is directed that an eligibility list containing the full

32 In cases involving an employer’s alleged unfair labor practices,
the natural and necessary tendency is to place the focus on manage-
ment’s misbehavior (and there was a large measure of that here). In
fairness, I wish to note that the tone and atmosphere of the tape-
recorded meetings was not uniformly negative. Borkenhagen also
made fair-minded statements, noting that while the Company would
prefer not to have a union, “if it happens, we’ll live with it” and that
“regardless of what happens . . . I want to do what’s right.” (GC Exh.
4.) To be clear, I cannot find that these expressions overcame the ef-
fects of the repeated improper statements, but it is appropriate to ac-
knowledge that they were made.
33 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
names and addresses of all the eligible voters must be filed by
the Employer with the Regional Director within 7 days from
the date of the Notice of Second Election. North Macon Health
Care Facility, 315 NLRB 359 (1994). The Regional Director
shall make the list available to all parties to the election. No
extension of time to file the list shall be granted by the Re-
gional Director except in extraordinary circumstances. Failure
to comply with this requirement shall be grounds for setting
aside the election whenever proper objections are filed.
ORDER
The Respondent, Superior Emerald Park Landfill, LLC, of
Muskego, Wisconsin, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Promulgating, maintaining, or enforcing an overbroad
prohibition on solicitation and distribution of literature.
(b) Granting wage increases and improved working condi-
tions to its employees for the purpose of discouraging union
activity.
(c) Soliciting grievances and promising benefits for the pur-
pose of discouraging union activity.
(d) Threatening to freeze wages and benefits, bargain from
scratch, refuse to reach a collective-bargaining agreement, and
to terminate employees engaged in an economic strike for the
purpose of discouraging union activity.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the “Solicitation” provision contained in the em-
ployees’ handbook.
(b) Within 14 days after service by the Region, post at its fa-
cility in Muskego, Wisconsin, copies of the attached notice
marked “Appendix.”34 Copies of the notice, on forms provided
by the Regional Director for Region 30, after being signed by
the Respondent’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 the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since July 23, 2002.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
34 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 466
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.

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
Federal labor law and has ordered us to post and obey this no-
tice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activities.

WE WILL NOT promulgate, maintain, or enforce an over-
broad rule prohibiting solicitation and distribution of literature.
WE WILL NOT grant wage increases or make improve-
ments in working conditions for the purpose of discouraging
union activity.
WE WILL NOT solicit employee grievances or promise
benefits for the purpose of discouraging union activity.
WE WILL NOT threaten to freeze wages and benefits, bar-
gain from scratch, refuse to reach a collective-bargaining
agreement, and terminate workers who are engaged in an eco-
nomic strike for the purpose of discouraging union activity.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
to you by Section 7 of the National Labor Relations Act.
WE WILL rescind that portion of our employees’ handbook
entitled “Solicitation.”
SUPERIOR EMERALD PARK LANDFILL, LLC