We Can, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1994

315 N.L.R.B. 170 (N.L.R.B. 1994)

170
315 NLRB No. 24
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent excepts to the judge’s refusal to allow its coun-
sel to cross-examine Anthony Steele regarding his failure to testify
in Federal district court during earlier, related 10(j) injunction pro-
ceedings. We find no merit to this exception. The judge clearly stat-
ed that he considered Steele’s decision not to testify in the 10(j)
case—which seems to have been engendered by the Union’s coun-
sel’s having told him that the Respondent would be calling him as
a witness ‘‘against the employees’’—to be irrelevant for purposes of
evaluating his credibility. In any event, having established that Steele
absented himself from the earlier proceeding under those cir-
cumstances, the Respondent had effectively made the point it was
attempting to make concerning Steele’s credibility; therefore, cross-
examination on that point would not have materially enhanced the
Respondent’s case.
The Respondent further excepts to the judge’s refusal to allow its
counsel to ask Steele whether he talked to other employees about a
warning he received from Supervisor Levy that the Respondent was
going to lay off drivers. We find no merit to this exception. Steele
testified that other employees were present when Levy made the
statement, and therefore were aware of Levy’s message.
The Respondent also excepts to the judge’s rejection of an exhibit
showing the volume of cans collected from each of its customers.
Again, we find no merit to the exception. The judge explained that
he was rejecting the exhibit because the information contained in it
would be cumulative of earlier, unrebutted testimony.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 The Respondent’s fiscal year runs from August 1 through July
31.
4 Unless otherwise noted, all dates refer to 1992.
5 The judge found that the Respondent discharged Malheiro for the
stated reason that he did not have a valid driver’s license, even
though the Respondent had known since Malheiro was hired that his
license had been suspended, and that it also was aware at the time
of his discharge that he had done everything necessary to have the
We Can, Inc. and Bakery Drivers & Bakery Goods
Vending Machines, Local 550, I.B.T., AFL–
CIO. Cases 2–CA–26085 and 2–CA–26095
September 30, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On August 27, 1993, Administrative Law Judge
Philip P. McLeod issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief. The
Respondent also filed a motion to reopen the record;
the General Counsel filed an opposition to the motion,
and the Respondent filed a reply. The Respondent filed
a supplement to its motion, and the General Counsel
filed an opposition.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions, briefs, motion, oppo-
sition, and reply, and has decided to affirm the judge’s
rulings,1 findings,2 and conclusions as modified below
and to adopt the recommended Order as modified.
The judge found that the Respondent violated Sec-
tion 8(a)(3) and (1) by discharging eight of its employ-
ees and by reducing the size of its collection network
because the employees had engaged in union activities.
The judge recommended that, to remedy its unlawful
conduct, the Respondent be ordered to offer to rein-
state the unlawfully discharged employees and to re-
store the collection network to its size at the time of
the discharges. We affirm the judge’s finding that the
discharges were unlawful, and we adopt his rec-
ommended remedy, with qualifications.
I. THE UNFAIR LABOR PRACTICES
The Respondent is a nonprofit organization that as-
sists the poor and homeless by providing them a ready
means of redeeming returnable cans and bottles and re-
ceiving refunds. One of the Respondent’s operations is
the collection network (CN). CN truckdrivers and help-
ers pick up bags of donated cans from clients in office
buildings and apartment houses; the Respondent itself
redeems the cans for the deposit. The CN does not
help the poor and homeless directly. It is intended in-
stead to generate operating profits that can defray some
or all the Respondent’s administrative costs and thus
make the Respondent less dependent on charitable con-
tributions. In practice, unfortunately, the results have
been disappointing. Instead of generating operating
surpluses, the CN incurred operating deficits exceeding
$30,000 in fiscal year 1989, $149,000 in fiscal year
1990, and $39,000 in fiscal year 1991. The CN real-
ized a modest operating surplus of about $5000 in fis-
cal year 1992. However, nearly all of that surplus was
generated between August and December 1991; operat-
ing deficits were incurred in all but 2 months between
January and July 1992.3
In the summer of 1992, the Union commenced an
organizing drive among the CN drivers and helpers.
On September 23,4 the Board’s Regional Office faxed
a copy of the Union’s representation petition to the Re-
spondent. By letter dated September 28, the Union de-
manded recognition on the basis of authorization cards
signed by all employees in the petitioned-for drivers
unit.
Almost immediately after it was informed of the
Union’s petition, as the judge found, the Respondent
began to violate the Act. Between September 23 and
29, the Respondent’s officers and supervisors unlaw-
fully interrogated driver Gene DiMurro, threatened
driver Jerry Medlin with discharge if he engaged in
union activities, and discharged driver Joseph Malheiro
for unlawful reasons under pretext of a legitimate
ground.5 In the process, the Respondent’s executive di-
171WE CAN, INC.
suspension lifted. The Respondent argues that Malheiro was dis-
charged for additional reasons—a bad attitude, rudeness to a cus-
tomer, and complicity in the pilferage of cans. We find no merit to
that argument. The Respondent admits that Malheiro was told that
the reason for his discharge was that he did not have a driver’s li-
cense. We note, in addition, that Malheiro’s disciplinary record men-
tions neither rudeness, bad attitude, nor pilferage, and that Super-
visor Jeff Dorsey testified that the (asserted) principal reason for
Malheiro’s termination was his lack of a driver’s license.
6 For several months before the discharges, the Repondent’s busi-
ness consultant, Gerald Smith, had been encouraging the Respondent
to restructure the CN and focus on large volume clients, albeit he
did not propose the drastic layoff measures resorted to by the Re-
spondent (see infra).
7 Elisabeth Peery, the CN’s communications director, testified that
a bag of cans typically produced about $10 in revenue, and that it
cost about $50 to make one stop. Therefore, five bags was the vol-
ume required to ‘‘break even’’ on a given stop.
rector, Guy Polhemus, told DiMurro and others that ‘‘I
don’t need to spend money for lawyers for this union
bullshit.’’ Similarly, Supervisor Peter Levy told Medlin
that he was ‘‘sick and tired of this bullshit’’ and
‘‘didn’t want to have to deal with lawyers and unions
and all this other shit.’’
On September 30, the Respondent’s CN program di-
rector, Angela Sylvestre, discharged 7 of the remaining
10 CN drivers, including DiMurro and Medlin. The
judge found that those seven discharges, like that of
Malheiro on September 24, were in retaliation for the
employees’ union activities, and violated Section
8(a)(3) and (1). The Respondent excepts. We agree
with the judge.
First, the judge correctly found that the General
Counsel has established a prima facie case that the
September 30 discharges were the result of discrimina-
tion. In affirming that finding, we emphasize the fol-
lowing factors which show that the drivers’ union ac-
tivity played a prominent role in the decision to dis-
charge them. The Respondent admittedly knew of the
employees’ unionizing activities. It learned of the fil-
ing of the petition on September 23, and within a week
it had fired nearly three-fourths of the drivers in the
unit. In addition to interrogating DiMurro concerning
the organizing activity and the identity of the employ-
ees who had signed cards, the Respondent’s super-
visors indicated their displeasure at the prospect of
unionization, and threatened Medlin with discharge if
he took part in union activities. On September 24,
Levy fired Malheiro for pretextual reasons. On Sep-
tember 25, when Polhemus told her the petition had
been filed, Sylvestre said, ‘‘I don’t understand this. We
have health benefits, we have good salaries. The driv-
ers have representation through their driver manager.
What more do you have to do to have unity, to have
cooperation, to have a sense that you’re working to-
gether?’’ On September 29, while interrogating
DiMurro about the drivers’ union activities, Levy made
comments indicating that the drivers had been involved
in union activity while their trucks were parked in the
street. On September 30, at a meeting with the drivers,
called because of the previous day’s truck parking inci-
dent, Sylvestre told the drivers that they were unco-
operative and that she did not want to work with unco-
operative people. That statement, read in conjunction
with Levy’s remarks on September 29 and Sylvestre’s
reference to cooperation when she learned of the orga-
nizing effort, indicates that Sylvestre considered union-
ization to constitute a lack of cooperation.
We also agree with the judge that Sylvestre’s stated
reasons for discharging the drivers were pretextual. In
this regard, the judge rejected the Respondent’s con-
tention that economic conditions compelled the reduc-
tion in the scope of the CN and the layoff of most of
the drivers. He found that, although the CN was losing
money in mid-1992, the Respondent’s poor financial
condition had existed for ‘‘quite some time.’’
The Respondent argues, however, that even before
the organizing campaign began, Sylvestre had made
plans to restructure the CN. The Respondent asserts
that Sylvestre planned to reduce the number of routes,
trucks, and drivers and to focus on the 20 percent of
the clients that provided the CN with 80 percent of its
cans and, hence, of its revenue. By eliminating the
stops that yielded only one or two bags, but which re-
quired the same amount of driver time as the large vol-
ume stops, the Respondent contends, it would reduce
revenues only marginally while reducing expenses sig-
nificantly, and thus turn the CN into a profit center.6
To that end, according to Sylvestre, in late August she
performed a computerized ranking of the Respondent’s
clients by the number of bags collected at each stop.
Also during the summer, the management discussed
abandoning the Respondent’s existing policy of accept-
ing CN clients that had as little as one bag per pickup,
and instituting a new requirement that clients have a
minimum of five bags in order to join the CN.
Sylvestre further testified that in early August she pre-
pared a memorandum for the Respondent’s publicity
agent, which stated that the Respondent would change
its policy around September to require a minimum of
five bags per stop.7 In fact, Sylvestre said she thought
that the minimum requirement would be set at more
than five bags. Also, according to Sylvestre, at about
the same time the Respondent ceased to send out its
old brochure, which stated that clients would be ac-
cepted that had only one bag per pickup. Finally,
Sylvestre testified that she had planned to service the
restructured CN (which would focus only on large vol-
ume clients and on buildings in which several small
clients had combined to meet the five-bag minimum)
with only 2 trucks and 3 drivers, rather than the 5
trucks and 11 drivers that covered the routes before the
discharges.
172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved by the Su-
preme Court in Transportation Management Corp. v. NLRB, 462
U.S. 393 (1983).
9 See Eddyleon Chocolate Co., 301 NLRB 887, 890 (1991). We
do not rely, however, on the judge’s statements that Sylvestre had
thought about restructuring the CN for less than a day and that the
decision lacked factual support. The record establishes that the Re-
spondent had been considering reducing the size of the CN, with
some urging from Smith, for some time before the start of the union
organizing effort.
10 In his testimony at the 10(j) hearing, Smith stated that he rec-
ommended reducing the number of trucks to four. In his testimony
in this proceeding, he said his recommendation was to have three
or four trucks.
11 We do not suggest that an employer that has retained the serv-
ices of a business consultant must have any layoff decision approved
by the consultant or follow the consultant’s recommendations in
order to avoid violating the Act. We do think, however, that the
judge properly considered the Respondent’s failure to consult Smith
regarding the September 30 discharges and restructuring of CN as
evidence that the Respondent’s actions on September 30 were not
motivated by economic considerations.
We agree with the Respondent that the judge incorrectly stated
that Smith had been routinely consulted by the Respondent for sev-
eral years. In fact, Smith had only consulted with the Respondent
for about a year prior to the discharges. This inadvertent error does
not affect our decision.
12 The trucks had permits allowing them to park in no-parking
zones, or to exceed the time limit for parking, for up to an hour.
On this occasion, the trucks were parked on the street for about 1-
1/2 hours, beyond the period allowed by the permits. In fact, how-
ever, the trucks were neither ticketed nor towed and the Respondent
suffered no financial expense as a result of the September 29 inci-
dent.
13 Sylvestre testified that the drivers’ being late to pick up their
trucks was not a factor in her decision to implement the mass dis-
charge. She also testified that, although she indicated to the drivers
at the September 30 meeting that there could be layoffs, she had not
decided at the end of the meeting to lay off any number of drivers.
The Respondent argues that, for the foregoing rea-
sons, the judge should have found that the real reason
for the discharges and the reduction in scope of the
CN was economic, and that, in any event, the Re-
spondent showed that it would have discharged the
eight drivers and restructured the CN as it did for eco-
nomic reasons, even if the employees had not engaged
in union activities.8
We are not persuaded. Even though Sylvestre had
studied the makeup of the Respondent’s client list and
formulated preliminary plans for restructuring the CN,
the Respondent has not shown that it would have done
what it did, when it did, in the absence of the drivers’
union activities.9 In addition to the factors relied on by
the judge, we note that Sylvestre’s memo indicating an
upcoming change to a five-bag minimum pickup size
states that the ‘‘target date’’ is September 1992, yet
the restructuring decision was not made until the last
day of September, and then on the spur of the moment
and because of Sylvestre’s personal pique at the driv-
ers (a subject we shall return to below.) Moreover,
Sylvestre admitted that the five-bag minimum had not
been established on August 5 (the date of the memo),
and that she actually felt confident that the minimum
would be more than five bags. Finally, although Gerald
Smith, the Respondent’s business advisor, had sug-
gested in the spring of 1992 that the CN be restruc-
tured to concentrate on large volume clients, he rec-
ommended that the number of trucks be reduced from
five to three or four10 (rather than two, as Sylvestre
decided). Smith also testified that he would never have
recommended eliminating all the drivers who were dis-
charged on September 30.11
Moreover, we find it significant that Sylvestre
should have made a decision which, according to the
Respondent, was necessary for economic reasons and
had been under consideration for those reasons at least
since early August, only after she had assertedly been
provoked by the actions of the drivers—or some of
them—on September 29 and 30. Thus, the Respondent
argues that the drivers upset management by leaving
trucks parked on the street on September 29, making
them vulnerable to being ticketed and possibly towed
at the Respondent’s expense.12 DiMurro compounded
the offense by failing to answer his beeper when Dor-
sey attempted to find out what was happening. The
next morning, at a meeting with the drivers, Sylvestre
was unable to convince the drivers of the seriousness
of the truck parking incident. She also testified that the
drivers demonstrated a bad attitude by certain sugges-
tions they made at the meeting regarding ways in
which the CN’s financial situation might be improved,
by complaining about the lack of health insurance
when coverage had been extended in July, and by
DiMurro’s refusing to answer questions about arbitrary
discharges that took place when, in the past, he had
been a supervisor and other matters that had been his
responsibility. Further, the Respondent contends, after
the meeting, Vice President Bennet Welikson reported
to Sylvestre that the drivers were late picking up their
trucks. Finally, Sorter Supervisor Raymond Vega in-
formed Sylvestre that the drivers had said that the CN
was going to be shut down and that it was the sorters’
fault, but that the drivers did not care because they
could collect unemployment compensation. It was the
last event, according to Sylvestre, that triggered her de-
cision to restructure the CN and discharge 7 of the re-
maining 10 drivers.13 Yet, as the judge found,
Sylvestre did not ask which drivers made the assert-
edly offending statements, and thus did not know
whether any of the drivers she chose to retain had been
among those making the statements.
In sum, the Respondent appears to contend that
Sylvestre’s September 30 decision to restructure the
CN to use only two trucks and three drivers had been
under consideration for some time and was economi-
cally necessary, but was precipitated by a seemingly
173WE CAN, INC.
14 In affirming the judge’s finding that the eight drivers were un-
lawfully discharged, we do not rely on his citation to Northport
Health Services v. NLRB, 961 F.2d 1547 (11th Cir. 1992).
15 Sylvestre’s precipitate actions cast doubt on even that propo-
sition, however. Sylvestre testified that after she berated Levy on
September 24 for attempting to fire Medlin without sufficiently doc-
umenting the case against him, Levy told her on September 25 that
he wanted to fire Medlin, Bastian, Mitchell, and Harrison. According
to Sylvestre, she asked Levy to write up a summary of the reasons
for the terminations before actually letting anyone go, so that she
would be prepared for any questions they might have. Because Levy
was out of the office until after September 30, he never provided
Sylvestre with the requested documentation. Nevertheless, Sylvestre
discharged these four named drivers on September 30.
16 The Respondent contends that Levy had decided to discharge
Bastian for absenteeism, and would have done so regardless of the
employees’ union activities. We find no merit to that contention. As
we have noted, Levy had not processed the requested documentation
when Sylvestre discharged Bastian on September 29; consequently,
we cannot determine whether Sylvestre would have found the docu-
mentation sufficient to warrant discharge. Moreover, Bastian’s dis-
ciplinary record contains some 28 oral and written warnings between
May and August 1992. Many of those warnings were for failure to
report to work, tardiness, and failure to pick up his truck. Yet Levy
did not decide to terminate Bastian until the day after the Respond-
ent learned that the Union had filed a representation petition, a fact
that indicates that it was the advent of the Union on the scene that
triggered Levy’s decision. On this record, we do not find that the
Respondent has shown that it would have discharged Bastian in the
absence of the drivers’ union activities.
The Respondent asserts that it suspected Medlin of stealing cans.
In this regard, the Respondent argues correctly that the judge erred
in finding that Medlin could not have been guilty of this offense be-
cause the evidence in the Respondent’s possession showed that the
apparent pilferage began long before Medlin was employed by the
Respondent. As the Respondent notes, the same evidence indicates
that the pilferage continued after Medlin was hired. However,
Medlin was never identified as the alleged thief and, according to
Smith, the Respondent had a persistent problem of cans being stolen
by outsiders posing as CN drivers. Thus, although the alleged thefts
occurred on Medlin’s route, it was not established that he was the
thief.
17 The Respondent does not pursue this argument to its logical
conclusion, viz, that if DiMurro was a supervisor, and not a statutory
employee, his discharge did not violate the Act.
trivial event involving unnamed drivers and was imple-
mented in such a fashion that Sylvestre could not have
known whether she was discharging drivers who had
been entirely innocent of the behavior she found so
disconcerting. We find it highly implausible that
Sylvestre actually engaged in the sort of eccentric deci-
sion-making she described in her testimony, and it
comes as no surprise to us that the judge did not credit
her explanation. On the basis of the entire record, then,
we agree with the judge that the Respondent did not
carry its burden of proving that it would have restruc-
tured the CN and discharged the drivers on September
30 if they had not engaged in union activities.14
The Respondent contends, for a variety of reasons,
that at least some of the drivers who were discharged
were inferior to the drivers it chose to retain—Anthony
Steele, Ralph Brown, and Mark Castro—and thus that
the judge erred in finding that performance was not
shown to be a consideration in the Respondent’s Sep-
tember 30 decision. We find no merit to that conten-
tion. In the first place, it is clear that the judge did not
find that performance played no role in the selection
of drivers to be discharged. He specifically found that
Sylvestre relied on the recommendations of Super-
visors Levy and Vega in selecting Steele, Brown, and
Castro for retention on the basis of their performance.
When he stated that performance was not a consider-
ation in the September 30 decision, then, the judge ob-
viously meant that the decision to discharge seven
drivers was not made because of the drivers’ perform-
ance, but because Sylvestre had decided to restructure
the CN. Assuming that performance was considered in
determining which drivers would be discharged and
which retained,15 such a fact is beside the point. The
question is not whether the Respondent, in selecting
particular individuals for discharge, chose to get rid of
more productive union sympathizers and to retain less
productive employees who did not support the Union.
(Indeed, all of the drivers had signed union authoriza-
tion cards, including the three who were not dis-
charged.) The question is whether, in the absence of
union activity, there would have been a mass dis-
charge at all on September 30. We answer that ques-
tion in the negative. Consequently, it is immaterial that
the Respondent may have chosen relatively more pro-
ductive drivers for retention.16
For all the foregoing reasons, as well as those relied
on by the judge, we affirm his finding that the Re-
spondent violated Section 8(a)(3) and (1) by reducing
the scope of the CN and discharging the seven drivers
on that date.
II. THE ALLEGED SUPERVISORY STATUS OF
GENE DIMURRO
The Respondent has excepted to the judge’s failure
to find that Gene DiMurro was a supervisor, and hence
not a member of the unit, at the time of the events in
question.17 We find no merit to that exception. Al-
though the parties stipulated that DiMurro was a super-
visor until August 11, when he resigned as
driver/manager and became solely a driver, they did
not stipulate as to which of his duties in the capacity
of driver/manager conferred supervisory status. The
Respondent correctly observes that when the
driver/manager who succeeded DiMurro in that posi-
tion resigned in early September, Levy asked DiMurro
to put the manifests together and ‘‘get the trucks on
the road’’ until another replacement could be found,
and DiMurro did so until he was discharged. The
record does not reveal, however, whether the duties
DiMurro assumed in September, which apparently in-
cluded assigning and/or directing employees, involved
the use of independent judgment or were of a merely
routine or clerical nature. Further, although Levy asked
174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 Supervisor Jeff Dorsey recalled that DiMurro said, ‘‘We have
to let him go.’’ Under either version, DiMurro did nothing more
than agree with the two supervisors that Malheiro should be dis-
charged, and thus his response does not constitute an effective rec-
ommendation of that action.
19 As the party contending that DiMurro was a supervisor, the Re-
spondent bears the burden of proof on that issue. See, e.g.,
Northcrest Nursing Home, 313 NLRB 491, 496 fn. 26 (1993).
20 See Lear Siegler, Inc., 295 NLRB 857, 861 (1989).
21 According to Peery, the restructured CN originally had a five-
bag minimum, but the minimum was lowered to four bags because
of client protest.
for DiMurro’s opinion regarding Levy’s desire to dis-
charge Malheiro, Medlin, Mitchell, and Bastian on
September 24, DiMurro’s opinions appear to have car-
ried no weight. DiMurro testified that he defended
Bastian and Medlin and could not remember what if
anything he said about Mitchell. Regarding Malheiro,
DiMurro testified that he said only ‘‘you have to do
what you have to do.’’18 Indeed, although all four
drivers ultimately were fired—Malheiro for pretexual
reasons on September 24, and the three others in the
mass layoff for reasons wholly apart from Levy’s de-
sire to dismiss them—DiMurro’s ‘‘opinions’’ clearly
played no part in their dismissals. Thus, the evidence
is insufficient to establish that DiMurro had the author-
ity effectively to recommend either discharge or reten-
tion or to exercise independent judgment concerning
any of the other types of authority listed in Section
2(11) of the Act. Consequently, the Respondent has
not carried its burden of demonstrating that DiMurro
was a supervisor.19
III. THE RESTORATION REMEDY
Having found that the Respondent unlawfully re-
duced the size of the CN and discharged eight of the
CN drivers, the judge ordered the Respondent to re-
store the CN to its size as of September 29, 1992, and
to offer to reinstate the eight discharged drivers. The
Respondent has excepted to those portions of the rem-
edy. It has also moved to reopen the record so that it
may introduce evidence that did not exist at the time
of the hearing and that the Respondent asserts will es-
tablish that restoration of the CN and reinstatement of
the drivers are inappropriate.
When an employer has curtailed operations and dis-
charged employees for discriminatory reasons, the
Board’s usual practice is to order a return to the status
quo ante—that is, to require the employer to reinstate
the employees and restore the operations as they ex-
isted before the discrimination—unless the employer
can show that such a remedy would be unduly burden-
some.20 We find that the Respondent has not shown,
on the basis of the record made at the hearing, that it
would be unduly burdensome for it to restore the CN
to its size as of September 29, 1992, and to reinstate
the eight discharged drivers.
First, although there was cause for concern over the
performance of the CN, that operation was not the
hopeless case the Respondent attempts to portray. As
we have seen, the CN chronically encountered eco-
nomic difficulties, and sustained operating deficits in
all but 2 months in 1992 prior to the September 30 re-
structuring. The fact remains, however, that for the
first time, the CN turned a small profit for the 1992
fiscal year. The Respondent’s financial advisor, Smith,
testified that he would never have proposed eliminat-
ing all the drivers who were discharged on September
30. Smith did recommend that, in order to focus on
high volume clients, the CN reduce the number of
trucks from five to three or four, but not to two, as
Sylvestre actually did. The testimony of the Respond-
ent’s own financial advisor, then, fails to establish that
it would be unduly burdensome to require the restora-
tion of the CN to its former size. Finally, we note that,
at the time of the hearing, the Respondent still had all
five of its trucks, three of which were leased for a pe-
riod of several years; consequently, there would have
been little if any capital outlay required as a result of
an order to restore the CN and reinstate the drivers.
The Respondent contends, however, that regardless
of the situation that existed on September 30, subse-
quent events have made it impossible to restore the CN
to the size it was before the mass discharges. First, the
Respondent argues, it has implemented a four-bag min-
imum pickup requirement that precludes many small
clients from being members of the CN. Second, the
Respondent claims that, in any event, numerous clients
ceased to participate in the CN when the CN was ef-
fectively shut down by the strike during the last 3
months of 1992. According to the testimony of
Elisabeth Peery, the CN’s communications director, the
combination of those circumstances caused 20 to 30
percent of the CN’s clients to drop out of the network.
Moreover, the bombing of the World Trade Center in
February 1993 cost the CN a number of clients. Thus,
the Respondent argues that it would literally be impos-
sible to restore the CN to its pre-September 30 size.
We find that argument unpersuasive.
Concerning the Respondent’s contention that it can-
not restore the CN to its former size because it has re-
structured the CN and imposed a four-bag minimum,21
we have already affirmed the judge’s finding that the
Respondent’s economic rationale for discharging the
drivers—which rationale encompassed the restructuring
of the CN—was pretextual. Because adopting the four-
bag minimum was not the real reason for the dis-
charges, and would not have occurred (or at least
would not have occurred when it did) if the drivers
had not engaged in union activities, the Respondent’s
argument that it cannot abandon the four-bag minimum
fails unless it is supported by other evidence. A
pretextual argument fares no better as a defense to a
175WE CAN, INC.
22 In finding that the Respondent has not shown that restoring the
CN would be unduly burdensome, we do not rely on the fact that
the CN’s operating deficits increased after September 30. As the Re-
spondent contends, the larger deficits appear to be caused in part by
factors unrelated to the size of the network. Clearly, however, the
fact that the CN as restructured has encountered difficulties does not
demonstrate that it would be unduly burdensome to restore it to its
former size. In particular, we would assume that as the World Trade
Center returns to normal operations, the CN might recover some of
its lost client base at that facility.
23 In the supplement to its motion, the Respondent states that more
than a year has elapsed since the CN was closed, and that no charge
has been filed alleging the closure to be unlawful.
24 See Lear Siegler, Inc., supra, 295 NLRB at 861–862.
25 Pacemaker Driver Service, 290 NLRB 405 (1988), review de-
nied 914 F.2d 92 (6th Cir. 1990).
restoration order than it does as an answer to the origi-
nal allegations of unlawful conduct, particularly where,
as here, the record does not indicate that any signifi-
cant capital outlay would be necessary to restore the
status quo ante.
Nor do we find merit to the argument that the loss
of clients precludes a restoration order. When the
Board orders the restoration of the status quo ante, it
is understood that the order means ‘‘as far as possible,
given the economic realities faced by the employer at
the time of compliance.’’ The Board does not order the
reinstatement of employees to nonexistent jobs. We
recognize that, even with a good-faith effort, the Re-
spondent may not be able to attract enough clients to
enable it to expand the CN to its September 29 size.
If that proves to be the case, the Respondent will be
in compliance with our reinstatement order if it rein-
states as many of the discharged employees—either as
drivers or in substantially equivalent positions—as are
needed to serve the clients it has been able to attract
and retain.22
We wish to stress that, although we are ordering the
Respondent to restore the CN to its September 29 size
and to offer to reinstate the unlawfully discharged driv-
ers, our Order does not require the Respondent to op-
erate the CN indefinitely at that size (or at all), espe-
cially at a loss. The Respondent may lawfully restruc-
ture the CN, or eliminate it entirely, if it can show that
its decision is made for legitimate business reasons.
The Respondent has moved to reopen the record so
that it can present further evidence, based on develop-
ments since the hearing, bearing on the appropriateness
of the restoration order. The Respondent represents in
its motion that it closed the CN entirely in June 1993,
and that it is now impossible to reinstate any of the
discharged drivers because there are no positions for
them to fill. The Respondent further represents that it
has defaulted on its leases of the three leased trucks
formerly used by the CN and that those trucks have
been repossessed.23 In light of these representations,
the Respondent urges the Board to remand the case to
the judge to determine whether there is any basis for
a restoration and reinstatement remedy.
We shall deny the Respondent’s motion to reopen
the record, but we shall amend the judge’s rec-
ommended Order to provide explicitly that restoration
and reinstatement will be required unless the Respond-
ent can establish at compliance—on the basis of evi-
dence that was not available at the time of the unfair
labor practice hearing—that those remedies are inap-
propriate.24 If, for example, the Respondent can dem-
onstrate that it has closed the CN and did so for legiti-
mate business reasons, it need not restore the CN to
its September 29 size or reinstate the drivers. In that
event, the appropriate make-whole remedy would be to
award backpay until the date of the closing.25
We are mindful that the Seventh Circuit Court of
Appeals recently disapproved of a similar conditional
restoration order. NLRB v. Special Mine Services, 11
F.3d 88 (1993). We find Special Mine Services distin-
guishable from this case. The court in Special Mine
Services found that the Board had articulated no basis
for rejecting the employer’s claim that a restoration
remedy would be unduly burdensome. In this case, we
have fully explained why, on the record established at
the hearing, the Respondent has not demonstrated that
a status quo ante remedy would pose an undue burden.
Another source of concern for the court in Special
Mine Services, supra, however, was that the Board’s
decision contained a statement that the employer
would be allowed to introduce evidence in compliance
proceedings, that was not available at the hearing, that
might be relevant to the appropriateness of the restora-
tion remedy. The court seemed to think that the Board
might not have considered the subject of restoring the
status quo ante at all, but simply had postponed the
‘‘real’’ decision to compliance. The court also worried
that, were it to enforce the Board’s Order, the em-
ployer would be directed—unequivocally—to restore
its earlier operations without being able to raise the
issue of the cost of restoration, and that it would be
put in jeopardy of contempt proceedings if it failed to
do so.
With all due respect for the court, we think it
misperceived the nature and consequences of the res-
toration remedy the Board imposed in Special Mine
Services, supra. The Board did not ‘‘defer’’ decision in
Special Mine Services, and we are not ‘‘deferring’’ de-
cision here. We have found, on the basis of the record
made at the hearing on unfair labor practices, that the
Respondent has not shown that restoration of the CN
to its size on September 29—the presumptively appro-
priate remedy for its discriminatory restructuring of the
CN and the firing of the drivers—is inappropriate. Ac-
cordingly, we are ordering the Respondent to restore
the status quo ante and to offer to reinstate the dis-
charged drivers. That is our decision. We recognize,
however, that in this case, as in almost any case, evi-
176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26 For example, as we have already stated, even though our order
directs the Respondent to restore the CN to its size as of September
29, in practice the Respondent will be required to do so, and to rein-
state the discharged drivers, only to the extent that it has succeeded
in a good-faith effort to attract and keep its CN clients.
27 In this regard, almost any Board Order might be characterized
as provisional, in that all parties understand that, should events over-
take some portion of the order, that portion can be modified at com-
pliance to reflect the changed conditions. The only difference here
is that the Respondent asserts that such changes already have oc-
curred. Our Order simply takes account of the Respondent’s conten-
tions and assures the parties that those contentions will be fully ex-
plored in the compliance process.
28 295 NLRB at 862.
29 Id.
30 In other words, after the employer had had the opportunity, at
compliance, to present newly acquired evidence regarding the contin-
ued appropriateness of the restoration remedy, and either failed to
do so or presented evidence that was not persuasive.
31 295 NLRB at 862 fn. 33.
32 Id. at 862.
33 Id.
34 Id. at 861–862.
dence may come to light after the close of the record
in the unfair labor practice hearing that may, if cred-
ited and found sufficiently material, establish that some
portion of the remedy imposed by the Board is no
longer appropriate.26 Indeed, the evidence proffered in
the Respondent’s motion is an example. Our directing
the Respondent to restore the status quo ante, unless
it can prove at compliance that restoration and rein-
statement are no longer appropriate, is not a ‘‘defer-
ral’’ of our decision. It is simply an explicit recogni-
tion of the reality that the appropriateness of almost
any affirmative remedy may change over time, and an
effective mechanism for amending this particular rem-
edy should the need arise.27
We turn now to the court’s concern that enforcement
of a provisional restoration order such as the one we
impose today would, in practice, unequivocally require
the Respondent to restore the CN to its September 29
size, and that its failure to do so might subject it to
contempt penalties. With all due respect, we think the
court’s concern is unfounded. The Board addressed
this very subject in Lear Siegler, Inc., supra. Noting
that several courts had refused to enforce restoration
orders, the Board observed that in some of those cases,
the restoration order had been unequivocal. The Board
speculated that the reviewing courts might have
thought that if those orders were enforced, the Board
at compliance might ignore all evidence of changed
circumstances, require restoration of operations even if
that remedy was no longer appropriate, and bring con-
tempt proceedings based on the literal terms of the or-
ders.28 The Board made clear in Lear Siegler that its
order, which simply stated that the employer might in-
troduce evidence at compliance concerning the contin-
ued appropriateness of the restoration and reinstate-
ment portions of the remedy, clearly implied that if the
employer could demonstrate that the restoration of its
facility would by unduly burdensone, restoration would
not be required. Thus, the Board went on to say,
‘‘court enforcement of the Order in this case will en-
able the Board to require restoration only if the
[r]espondent cannot show that restoration would im-
pose an undue hardship.’’29 The Board also empha-
sized that contempt proceedings would not and could
not be brought against the employer for failing to com-
ply with its restoration order unless and until (1) the
Board, in compliance proceedings, had finally deter-
mined that restoration was appropriate,30 (2) the em-
ployer failed to comply with the restoration order, (3)
the Board’s Order was enforced, and (4) the employer
refused to comply with the order as enforced.31 Thus,
as in Lear Siegler, the Respondent will have the op-
portunity to present both the evidence adduced in its
motion to reopen the record and any additional evi-
dence that may bear on the appropriateness of the res-
toration and reinstatement remedy at compliance. If it
fails to do so, or if the evidence it presents is uncon-
vincing, the restoration and reinstatement order will
stand, subject to court review. If, however, the Re-
spondent presents evidence at compliance that con-
vinces the Board that the restoration and reinstatement
portions of the Order would be unduly burdensome be-
cause of changed circumstances and therefore are no
longer appropriate, the Respondent will not be required
to carry out those portions of the Order and, as the
Board stated in Lear Siegler, will be in no danger of
contempt proceedings if it declines to do so.32
To be sure, the approach we take here is not the
only course available. The Board, in its discretion,
could grant the motion to reopen the record, remand
the case to the judge, and leave it to him to evaluate
the Respondent’s newly proffered evidence.33 As the
Board found in Lear Siegler, however, leaving the
issues raised in the motion to reopen the record to
compliance is consistent with the Board’s established
practice of leaving the details of the remedy to the
compliance process. It is also more efficient than re-
manding the case to the judge, waiting for his supple-
mental decision and any ensuing exceptions, and
issuing a supplemental decision and order before com-
pliance proceedings could even begin. Under the ap-
proach we took in Lear Siegler, and which we take
again today, all compliance issues, including those in-
volving reinstatement and restoration, will be decided
in one compliance hearing.34 Finally, we note that,
even if we were to reopen the record and remand the
case to the judge to evaluate the Respondent’s new
evidence, there is no guarantee that, after the judge has
held a second hearing and rendered his supplemental
decision, some party would not file yet another motion
to reopen the record, based on evidence acquired since
the record closed in that hearing. And so on, poten-
177WE CAN, INC.
tially ad infinitum. Although this scenario, with its at-
tendant delay, is unlikely to eventuate often, we deem
it advisable to avoid this kind of piecemeal approach
to disposing of the issues of restoration and reinstate-
ment. In our view, it will be more efficient to leave
to the compliance process the task of evaluating any
evidence—both that proffered by the Respondent in its
motion and any that may come to light between now
and the time of the compliance hearing—that may re-
flect on the continuing appropriateness of the status
quo ante remedy.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, We
Can, Inc., New York, New York, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
1. Insert the following after ‘‘as of September 29,
1992,’’ on line 4 of paragraph 2(a):
unless it can show at compliance, on the basis of
evidence that was not available at the time of the
unfair labor practices hearing, that those actions
would be unduly burdensome,
2. Substitute the attached notice for that of the ad-
ministrative law judge.
IT IS FURTHER ORDERED that the Respondent’s mo-
tion to reopen the record is denied.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY THE ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten to discharge our employees
because they engage in activities on behalf of Bakery
Drivers & Bakery Goods Vending Machines, Local
550, I.B.T., AFL–CIO, or any other labor organization.
WE WILL NOT interrogate our employees regarding
employee activity on behalf of a labor organization.
WE WILL NOT warn our employees not to engage in
union activities.
WE WILL NOT imply to our employees that we have
discharged employees because of their union activities.
WE WILL NOT discharge our employees because of
their union activities.
WE WILL NOT reduce the size of our collection net-
work because of our employees’ union activities.
WE WILL NOT refuse to recognize and bargain with
Bakery Drivers & Bakery Goods Vending Machines,
Local 550, I.B.T., AFL–CIO as exclusive collective-
bargaining agent of our employees in the below de-
scribed collective-bargaining unit:
All collection network drivers and driver assist-
ants employed by Respondent at its facility, ex-
cluding all clerical employees, and guards, profes-
sional employees and supervisors as defined in
the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights guaranteed them by Section 7 of the
Act.
WE WILL offer immediate and full reinstatement to
Joseph Malheiro, Gene DiMurro, Jerry Medlin Jr.,
Clifton Harrison, Scott Stockdale, Anthony Velez Jr.,
Lance Mitchell, and Parris Bastian and WE WILL re-
store our collection network to its size as of September
29, 1992, unless we can show in compliance proceed-
ings, on the basis of evidence that was not available
at the time of the unfair labor practices hearing, that
those actions would be unduly burdensome.
WE WILL make Joseph Malheiro, Gene DiMurro,
Jerry Medlin Jr., Clifton Harrison, Scott Stockdale,
Anthony Velez Jr., Lance Mitchell, and Parris Bastian
whole for any loss of earnings they suffered by reason
of our discrimination against them, with interest.
WE WILL rescind our discharges and refusals to re-
hire Malheiro, DiMurro, Medlin, Harrison, Stockdale,
Velez, Mitchell, and Bastian.
WE WILL, on request by the Union, recognize and
bargain with the Union as the exclusive collective-bar-
gaining agent of our employees in the above-described
unit.
WE CAN, INC.
Richard De Steno, Esq. and Eric Brooks, Esq., for the Gen-
eral Counsel.
Andrew W. Hays, Esq., for the Respondent.
Roy N. Watanabe, Esq. and Rebecca Weston, Esq., of New
York, New York, for the Charging Party.
DECISION
PHILIP P. MCLEOD, Administrative Law Judge. I heard this
case on April 26, 27, 28, and 29, 1993, in New York, New
York. The charge in Case 2–CA–26085 was filed on Septem-
178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ber 29, 1992. The charge in Case 2–CA–26095 was filed on
October 1, 1992. An amended complaint issued on February
12, 1993.
At the trial herein, all parties were represented and af-
forded full opportunity to be heard, to examine and cross-ex-
amine witnesses, and to introduce evidence. Following the
close of the trial, Respondent and the General Counsel filed
timely briefs with me which have been duly considered.
Upon consideration of the entire record and briefs filed by
the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent admitted that it is a domestic not-for-profit
corporation with an office and place of business in New
York City. The parties stipulated that during a material 12-
month period, Respondent derived in excess of $50,000 from
redemption of beverage cans and bottles directly from Sound
Distributing. Sound Distributing is a beverage distributor in
Yonkers, New York, that has, during the past 12 months,
purchased and received at its facility goods valued in excess
of $50,000 directly from Newark, New Jersey.
Respondent’s attorney stated on the record that Respond-
ent did not admit the conclusionary allegations as to jurisdic-
tion, but Respondent does not dispute the factual allegations.
In addition to the above matters which were admitted or stip-
ulated, the amended complaint contains an allegation that Re-
spondent derives annual gross revenue in excess $1 million.
Respondent’s attorney does not dispute that allegation and
records introduced during the hearing proved that Respond-
ent does derive annual gross revenue in excess of $1 million.
I find, in view of the stipulations, admissions, and the en-
tire record, that Respondent is and has been at material, an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the National Labor Relations Act
(the Act).
II. LABOR ORGANIZATION
The parties stipulated that Bakery Drivers & Bakery
Goods Vending Machines, Local 550, I.B.T. is, and has been
at all material, a labor organization within the meaning of
Section 2(5) of the Act.
III. SUPERVISORS
The parties stipulated that at material times, while em-
ployed by Respondent, Guy Polhemus, Philip (Peter) Levy,
Bennett Welikson, Angela Sylvestre, Jeff Dorsey, and Ray-
mond Vega have been supervisors within the meaning of
Section 2(11) of the Act.
Executive Director and Founder Guy Polhemus testified
that Program Director Angela Sylvestre and Vice President
Bennett Welikson reported directly to him and that he dele-
gated the running of Respondent to them in large measure.
Supervisors, including Jeff Dorsey, Gene DiMurro (while he
was a supervisor), and Peter Levy, reported to Sylvestre and
Welikson.
Gene DiMurro was stipulated to have been a supervisor
while he was driver manager. DiMurro resigned from that
position on August 11, 1992. After that date until his dis-
charge, DiMurro was a driver.
IV. THE UNFAIR LABOR PRACTICES
Evidence was unrebutted that 11 drivers and assistant driv-
ers signed union authorization cards on August 29 and Sep-
tember 5, 8, and 29, 1992.
The parties stipulated that on September 23, 1992, Re-
spondent received a fax from the NLRB Regional Office
which included a copy of a petition filed by the Union seek-
ing to represent Respondent’s drivers.
Most of the events involved in the complaint allegations
occurred during the week of September 23 through 30, 1992.
A. Events of September 24
Driver Gene DiMurro testified credibly that on September
24, when DiMurro returned from his route, Executive Direc-
tor Guy Polhemus asked him if ‘‘you guys are starting up
a union again.’’ DiMurro replied that he didn’t know what
Polhemus was talking about. Polhemus admitted that he did
ask DiMurro, ‘‘Are you guys trying to unionize again.’’
Polhemus recalled that conversation occurred on September
23, after he received the fax from the NLRB notifying him
of the Union’s petition. Polhemus recalled that the Teamsters
had tried to organize the drivers in 1991.
On that same afternoon, Supervisor Peter Levy called
DiMurro to come into the office. Assistant director for the
collection network, Jeff Dorsey, was also present. DiMurro
testified credibly that while he was in Levy’s office, Guy
Polhemus dropped by, listened to their conversation, and
said, ‘‘I don’t need to spend money on lawyers for this union
bull shit.’’ Polhemus then walked out. Polhemus denied that
he said anything about a union during this particular meeting,
but I do not credit his denial. During this same conversation,
Levy told DiMurro that he was going to discharge four driv-
ers—Parris Bastian, Lance Mitchell, Joseph Malheiro, and
Jerry Medlin. Levy said he was going to fire Bastian and
Mitchell because of lateness and a poor attitude, Malheiro
because he didn’t have a driver’s license, and Medlin be-
cause he was stealing cans. DiMurro testified that Levy
showed him a paper from Merrill Lynch stating from January
1991, cans were being stolen from one stop. This Levy
blamed on Medlin.
Joseph Malheiro was discharged. Jerry Medlin Jr. was also
discharged, then reinstated on the same day when DiMurro
confronted Levy with the fact that Medlin could not be guilty
of theft as accused by Levy because the alleged theft of cans
started before Medlin was hired. The other two named by
Levy, Lance Mitchell and Parris Bastian, were not dis-
charged then. Jerry Medlin testified credibly regarding his
discharge that when Levy gave Medlin his job back, Levy
told Medlin that if he messed up in any way, he would be
fired. Levy said that he was ‘‘fucking sick and tired of this
bull shit’’ and he ‘‘didn’t want to have to deal with lawyers
and unions and all this other shit.’’
B. Events of September 25
Polhemus testified that he met with Angela Sylvestre on
September 25, and, for the first time, informed her of the
Union’s petition with the NLRB. Levy was also present.
Polhemus recalled that both Angela Sylvestre and Peter Levy
commented during the September 25 meeting about collec-
tion network problems. According to Polhemus, Sylvestre
mentioned that the collection network ‘‘was still losing
179WE CAN, INC.
money,’’ or ‘‘it was losing more money than it had before
apparently.’’ Levy complained about the drivers’ attitude.
C. September 28: the Union’s Demand for Recognition
By letter dated September 28, 1992, the Union made a de-
mand for recognition to Respondent.
D. Events of September 29
Gene DiMurro testified that when he returned to the office
after work on the afternoon of September 29, Vice President
Bennett Welikson questioned him about how many bags he
had that day. DiMurro testified credibly that Welikson then
asked, ‘‘Who signed the union cards?’’ DiMurro replied to
Welikson that he had no idea what Welikson was talking
about.
DiMurro testified that all the drivers met in the union at-
torney’s office around 4:30 p.m. on September 29, 1992.
While the meeting was going on, three of the trucks were
parked on the street at Respondent’s office. DiMurro was
beeped on a pager while in that meeting. The beep was from
Peter Levy. After the meeting, DiMurro called Levy about
6:15 p.m. Levy asked DiMurro what was going on with the
trucks outside. DiMurro told Levy that the drivers wanted to
get something to eat and then they were going to bring the
trucks down to where they are normally parked for the night.
DiMurro testified credibly that Levy then asked, ‘‘What is
going on, you know what I mean, if you know anything that
is going on, why don’t you just tell me.’’ Levy asked
DiMurro if he started the union campaign. DiMurro replied,
‘‘No.’’ Levy then asked if Jerry Medlin started the union
thing and DiMurro replied, ‘‘No.’’ DiMurro then told Levy
that he had to go because he was going to a ball game. Levy
said, ‘‘How can you go to a ball game when all this is going
on?’’ DiMurro replied, ‘‘Well, what is going on?’’ Levy said
again, ‘‘When all this is going on.’’ DiMurro replied that he
had to go and hung up.
Jerry Medlin attended the meeting at the union lawyer’s
office on September 29. After Medlin returned and parked
his truck, Program Director Angela Sylvestre said she was
disappointed that the trucks were left outside. Medlin testi-
fied that it was not unusual for the drivers to leave the trucks
outside. Medlin told her they (the drivers) just went to have
something to eat.
Guy Polhemus testified that he was at Respondent’s office
on the evening of September 29, and the office was ‘‘pande-
monium’’ over the trucks being left on the street. While he
was there efforts were being made to locate the drivers. Fi-
nally, Angela Sylvestre was able to talk to one of the drivers.
Sylvestre told Polhemus that she was meeting with the driv-
ers the next morning.
E. Events of September 30
On the morning of September 30, Program Director An-
gela Sylvestre had a meeting of all the drivers other than
Ralph Brown and Anthony Steele, who worked the night
shift. The events of this meeting are largely undisputed.
Sylvestre testified that she decided to call the meeting be-
cause the drivers left three trucks parked on the street for
over an hour on the previous evening. Sylvestre expressed
anger and frustration about the fact that drivers had left
trucks parked on the street the previous afternoon, even
though trucks had been parked on the street temporarily on
previous occasions. Sylvestre said that the drivers were unco-
operative and that she did not want to work with uncoopera-
tive people. Sylvestre told the drivers Respondent was in the
red and ‘‘there might not be a collection network when you
come in this afternoon.’’ Driver Scott Stockdale told
Sylvestre that recycling would become compulsory in March
1993 and that she could take some of the money from the
redemption network and hold the drivers until then. Sylvestre
said that was against her morals or standards. Sylvestre said
that the redemption and the collection networks each have to
be self-sufficient.
Sylvestre admitted that during this meeting she and the
drivers also discussed a number of issues, including fringe
benefits. One of the issues discussed was medical benefits.
Sylvestre testified that driver Parris Bastian complained
about their not having medical benefits. At the end of the
meeting, Sylvestre told the drivers that they could go on their
routes ‘‘if you want or, if you don’t want, you can go
home.’’ All the drivers went on their routes.
At the end of the workday on September 30, Respondent
terminated all of its drivers and driver assistants except three.
In all, Respondent terminated seven drivers and driver assist-
ants: Gene DiMurro, Jerry Medlin, Clifton Harrison, Scott
Stockdale, Anthony Velez, Lance Mitchell, and Parris
Bastian. Harrison had signed a union authorization card on
September 8. Stockdale, Velez, and Mitchell signed author-
ization cards on September 29, 1992. Bastian dated his au-
thorization card August 29, 1992. Only three drivers/helpers
were kept: Brown and Steele, who worked the night shift,
and Mark Castro.
Gene DiMurro was notified of his termination by Vice
President Bennett Welikson and Program Director Angela
Sylvestre. DiMurro testified Sylvestre told him Respondent
was closing down the collection network and was going to
get rid of all the drivers. DiMurro asked when they were
going to reopen the collection network and did he have a po-
sition. Sylvestre said that in due time the collection network
would open again, that DiMurro was a good worker, and that
they would notify DiMurro.
Medlin testified he was called to the office and handed a
slip for unemployment purposes. Medlin told them that he
didn’t want to hear their reason for the layoff. Medlin testi-
fied that he was walking down a hall talking with Mark Cas-
tro when they walked near Angela Sylvestre. Sylvestre told
Medlin to ‘‘take your campaign somewhere else.’’ Sylvestre
admitted telling Medlin to take whatever he had to do out-
side that office, but she testified she responded to Medlin’s
threat that they were going to shut down the entire operation.
As mentioned above, only Steele, Brown, and Castro were
kept. Steele testified credibly he was told the other drivers
were fired because they weren’t satisfied with their jobs.
Steele also testified that after the drivers were laid off on
September 30, 1992, he and Ralph Brown were working the
night shift. After they were out on their route, Gene DiMurro
beeped them and told them to return with their trucks. After
returning they were approached by Bennett Welikson and
Jeff Dorsey who asked why they were back. Steele and
Brown replied they had been beeped by DiMurro. They were
told to park the trucks and return to the office. In the office,
Angela Sylvestre and Bennett Welikson asked them if they
still wanted to work. Brown and Steele said they would, but
180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
somebody had thrown an object into their truck. At that time
Angela Sylvestre said, ‘‘That’s it! We’re going to shut down
the network.’’
After Sylvestre discharged the employees on September
30, the Union began picketing Respondent. Although Re-
spondent retained drivers Steele, Brown, and Castro, those
three did not report for work after the evening of September
30. Instead, they joined the other employees on the picket
line and Respondent was shut down for some time.
F. Events of October 16 and 17
On October 16, when Anthony Steele returned to pick up
his girl friend, Raymond Vega, the supervisor over sorting,
approached Steele and asked Steele if he had signed a union
card. Steele replied, ‘‘What Union card? No. I ain’t signed
no union card.’’ Vega then asked Steele if he would be will-
ing to sign ‘‘an affidavit against the drivers.’’ On cross-ex-
amination Steele testified that Vega asked him would he sign
an affidavit because they want to hire you back—‘‘They
want you to come back to work if you sign an affidavit
form.’’ Steele agreed to sign the affidavit.
The following day, as Steele approached the picket line on
52nd and 11th Avenue, Raymond Vega called him across the
street to the redemption center and asked Steele if he was
still willing to sign the affidavit. Steele replied, ‘‘Yes.’’
Steele went with Vega into Vega’s office where Vega
phoned Guy Polhemus. Vega told Polhemus that Steele did
not sign a union card and had nothing to do with the Union.
Vega said that Steele was willing to sign an affidavit. Vega’s
call was transferred to Program Director Angela Sylvestre
and Sylvestre told Vega a specific day to have Steele come
in. Angela Sylvestre agreed that she was phoned by the sort-
er supervisor, Raymond Vega, and asked to take Steele’s af-
fidavit. Sylvestre testified that she then talked with Steele
and told him the NLRB was investigating the matter and that
she did not need an affidavit from Steele. I found Steele to
be open and responsive under both direct and cross-examina-
tion. Much of Steele’s testimony was not rebutted, and Re-
spondent did not call Raymond Vega to testify. I credit
Steele’s testimony. After the picketing ended, Steele received
a certified letter from Respondent stating that he was wel-
come to come back to work. Steele testified that he returned
to work on January 4, 1993. Steele continued working for
Respondent until March 1993, when he took a leave of ab-
sence.
Gene DiMurro testified that on October 16, he phoned Re-
spondent, disguised his voice, and pretended to be from
Camera Printing, one of Respondent’s accounts. Assistant di-
rector in collection network, Jeff Dorsey, answered the
phone. DiMurro asked Dorsey when he was going to get his
pickup. Dorsey mentioned that they were having a problem
with the Teamsters and Dorsey said, ‘‘You can get a pick
up anywhere from tomorrow to three months from now.’’
DiMurro asked what he was to do with the cans. Dorsey re-
sponded, ‘‘Please store them and when we get back into op-
erations again, we will pick them up. And if you can’t store
them, just put them outside for the homeless and just throw
them out.’’ I credit DiMurro’s testimony.
G. Events of November 18
On November 18, DiMurro was near We Can when he
stopped and talked with two employees, Chad Callous and
John Altidore. As they were talking Guy Polhemus walked
up and said, ‘‘I hope you are not signing union cards.’’ Nei-
ther of the employees responded. Polhemus then asked how
they were doing. Polhemus recalled saying, ‘‘I hope you
have your union cards.’’ Guy Polhemus testified that picket-
ing was going on at the time, and that he intended his com-
ment to be humorous.
Analysis and Conclusions
The General Counsel alleges that Respondent violated Sec-
tion 8(a)(1) and (3) of the Act by several acts and state-
ments, by discharging it drivers on September 30, and by
temporarily reducing the scope of its collection network op-
erations. As more fully discussed below, the General Counsel
contends that Respondent engaged in conduct violating the
Act so serious and substantial in character that the possibility
of erasing the effects of those unfair labor practices and of
conducting a fair election by use of traditional remedies is
slight, and the employees’ sentiments regarding representa-
tion, having been expressed through authorization cards
would, on balance, be protected better by issuance of a bar-
gaining order than by traditional remedies alone.
I found the testimony of Gene DiMurro to be credible. In
large measure DiMurro’s testimony was either corroborated
or unrebutted. For example, his testimony regarding com-
ments by Respondent’s executive director, Guy Polhemus,
was substantially supported by Polhemus with the exception
of comments allegedly made by Polhemus in Peter Levy’s
office on September 24. Polhemus testified in substantial ac-
cord with DiMurro regarding alleged comments in violation
of Section 8(a)(1) shortly after Respondent received a fax
from the NLRB Regional Office and again during October
1992. Peter Levy did not testify, and the conversations
DiMurro recalled with Levy were not rebutted. In short, I
was impressed with DiMurro’s demeanor and I fully credit
his testimony. The credited evidence shows that Gene
DiMurro was interrogated by Polhemus, Levy, and Welikson.
Both Polhemus and Levy, linked their comments to their op-
position to the Union.
I also found Jerry Medlin to be a credible witness and I
credit his testimony. The credited evidence shows that both
Guy Polhemus and Peter Levy coupled their displeasure with
the appearance of the Union. As shown above, on September
23, 1992, the NLRB Regional Office faxed a copy of the
union petition to Respondent. Under the circumstances, espe-
cially in view of the fact that Medlin was first fired, then
warned that he could be fired again, and Levy’s comments
that he was tired of having to deal with lawyers and unions,
I find that Medlin was threatened with discharge if he
messed up by involving himself with the Union. Levy’s com-
ments constitute a violation of Section 8(a)(1) of the Act.
Evans St. Clair, Inc., 278 NLRB 459 (1986); Port East
Transfer, 278 NLRB 890 (1986); Ryder/P.I.E. Nationwide,
278 NLRB 713 (1986); Precision Founders, 278 NLRB 544
(1986).
I also credit the testimony of Anthony Steele. Raymond
Vega did not rebut Steele’s testimony and his testimony was
181WE CAN, INC.
substantially corroborated by Angela Sylvestre. Anthony
Steele was interrogated by Sorter Supervisor Raymond Vega.
Raymond Vega made comments in obvious opposition to the
Union during his interrogation of Anthony Steele.
In view of the full record and especially those matters
noted above, I find that Respondent engaged in pervasive
and coercive interrogation of its employees at a time when
no employee had openly revealed support for the Union. Ad-
ditionally, the record shows that Respondent’s highest rank-
ing official, Polhemus, involved himself in interrogation of
an employee regarding the Union. After questioning DiMurro
whether the employees were trying to unionize, Polhemus
commented before DiMurro that he did not need to spend
money on lawyers and this ‘‘union bull shit.’’ I find that Re-
spondent’s activities constitute interrogation in violation of
Section 8(a)(1) of the Act. Rossmore House, 269 NLRB
1176 (1984); Kona 60 Minute Photo, 277 NLRB 867 (1985);
Hearst Corp., 281 NLRB 764 (1986); WXON–TV, 289
NLRB 615, 619 (1988); Southwire Co. v. NLRB, 820 F.2d
453 (D.C. Cir. 1987); cf. Sunnyvale Medical Clinic, 277
NLRB 1217 (1985).
Unrebutted testimony of Gene DiMurro also shows that he
was interrogated by Supervisor Peter Levy after the employ-
ees met with the union attorney after work on September 29.
Levy’s comments to DiMurro at that time illustrated that Re-
spondent suspected the employees were involved in union
activity while the trucks were parked on the street. In view
of that evidence, the comments by Angela Sylvestre that she
was disappointed in the drivers, the drivers were uncoopera-
tive and she did not want to work with uncooperative people,
implies a warning to the drivers not to engage in union ac-
tivities. Sylvestre’s warning violated Section 8(a)(1) of the
Act.
Anthony Steele testified that after the drivers were laid off
on September 30, 1992, he and Ralph Brown were working
the night shift. After they were out on their route, Gene
DiMurro beeped them and told them to return with their
trucks. After returning they were approached by Bennett
Welikson and Jeff Dorsey who asked why they were back.
Steele and Brown replied they had been beeped by DiMurro.
They were told to park the trucks and return to the office
with Ralph Brown. In the office, Angela Sylvestre and Ben-
nett Welikson asked them if they still wanted to work.
Brown and Steele said they would but somebody had thrown
an object into their truck. At that time Angela Sylvestre said,
‘‘That’s it! We’re going to shut down the network.’’ Steele
testified credibly he was told the drivers were fired because
they weren’t satisfied with their jobs.
Regarding the discharges of employees, the record shows
that on September 24, after Respondent learned the Union
had petitioned the NLRB to represent Respondent’s drivers,
Peter Levy told Gene DiMurro that he was going to fire four
employees. Joseph Malheiro was discharged. Jerry Medlin Jr.
was also discharged, then reinstated when DiMurro told Levy
that Medlin could not be guilty of theft as accused by Levy
because the alleged theft of cans occurred before Medlin was
hired. Levy then gave Medlin his job back and told Medlin
that if he messed up in any way, that he would be fired.
Levy said that he was ‘‘fucking sick and tired of this bull
shit’’ and he ‘‘didn’t want to have to deal with lawyers and
unions and all this other shit.’’
Joseph Malheiro worked for Respondent from June 1991
until he was discharged on September 24, 1992. Malheiro ad-
mitted that at the time of his employment, from his first hir-
ing, his driver’s license was suspended. He talked with An-
gela Sylvestre about a week after he was hired. Sylvestre
told Malheiro that he had a suspended license. Sylvestre told
Malheiro they had run a check which revealed the suspen-
sion. Malheiro told Sylvestre that he would pay off his tick-
ets as soon as he had a chance and that would serve to re-
voke the suspension. Subsequently, on a couple of occasions,
Sylvestre told Malheiro to take care of the suspension.
The parties stipulated into evidence a printout dated June
21, 1991, showing that Malheiro’s driver’s license was sus-
pended. That printout was included in Malheiro’s personnel
file. Another printout dated April 7, 1992, showing that
Malheiro’s license remained suspended, was included in his
personnel file. A third printout dated September 1992, show-
ing Malheiro’s suspension continued, was also included in
his personnel file.
In December 1991, Malheiro was told by Peter Levy that
Levy had just found out that Malheiro had a suspended li-
cense. Levy told Malheiro to take care of the suspension.
Malheiro told Levy that he owed a lot of money in tickets
and that he would take care of that as soon as he could.
Again, around April 26, 1992, before Malheiro took a trip
to Portugal, Levy told him that he did not have to take care
of the suspension before he went to Portugal but he would
appreciate Malheiro taking care of the matter as soon as he
returned. Malheiro said, ‘‘No problem. As soon as I had the
money and I’d come back I would start taking care of it.’’
After Malheiro returned from Portugal, he talked with
Levy. Levy told him he would have to start taking care of
his suspended license. Gene DiMurro gave Malheiro a letter
requesting a restricted license for Malheiro to be able to
drive during work. Malheiro testified that he started paying
off his tickets in order to restore his license.
Also, he was given a letter stating for him to go down to
the Department of Motor Vehicles with the letter stating that
Malheiro needed a restricted drivers license in order to work
the weekend. The letter was dated June 27, 1992.
Angela Sylvestre was asked about her knowledge of
Malheiro’s suspended license. Sylvestre testified that she
knew of the suspended license after Malheiro started to work
and she heard of a process whereby Malheiro could get a re-
stricted license in order to work. She was unaware that
Malheiro was not operating with a restricted license after he
applied for that license in order to work.
Malheiro recalled that he had about two conversations
with Levy after June, regarding his suspended license. Levy
asked him where he stood. Malheiro first told Levy around
August 1992 that he had the tickets almost paid off. Then,
during the second conversation, Malheiro told Levy that he
had paid off his tickets and was just waiting for his license
in the mail. Malheiro testified that he was never told that
anything would happen to him regarding the suspended li-
cense.
Gene DiMurro testified he conducted a license check in
early January which showed that Malheiro’s license was sus-
pended. Peter Levy was not at Respondent when Malheiro
started work but Levy knew of Malheiro’s suspended license
from the time Levy first started working for Respondent.
After that Peter Levy told DiMurro on a couple of occasions
182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that Malheiro had to get his license. Malheiro was going to
Portugal for family reasons and Malheiro told Levy in the
presence of DiMurro, that he would take care of his license
when he got back.
Malheiro testified that in September 1991, his partner on
his truck, Ethan Weinberger, told Angela Sylvestre that he
needed to return to school. Sylvestre said, ‘‘[N]o problem.’’
From then, rather than work until 4 p.m., as usual, Malheiro
dropped Weinberger off at a train station at 12:30 or 1 p.m.,
and Weinberger would go to school. On Fridays, Weinberger
did not have school and he worked the full day. Malheiro
was asked by Sylvestre to finish the route on those occasions
when Weinberger went to school. On those occasions, after
that, Malheiro finished the route alone and he drove the
truck.
After his September 24 discharge, Malheiro received his
driver’s license in the mail but he has not been offered rein-
statement by Respondent. The license was restricted to driv-
ing during work.
Malheiro’s testimony regarding conversations he had with
Peter Levy was not rebutted. Levy did not testify. I credit
Malheiro regarding those conversations. Although Angela
Sylvestre testified that she assumed that Malheiro had re-
ceived a restricted license, she admitted that she was never
told that Malheiro had his license reinstated. As to the evi-
dence of avenues available for restricted license, the record
showed that Malheiro and Respondent took steps beginning
in June 1992, to acquire a restricted license which would
allow Malheiro to drive while at work. Malheiro did receive
a restricted license after he was discharged.
In view of the record, I find that Respondent knew, from
early in Malheiro’s employment, that Malheiro’s driver’s li-
cense was suspended and Respondent was never informed
that Malheiro had received a license, restricted or otherwise,
while he worked for Respondent. I also find that Malheiro’s
lack of a driver’s license was a mere ruse, a smoke screen
employed by Respondent to attempt to justify terminating
Malheiro. The real reason for discharging Malheiro was Re-
spondent’s plan to begin cleaning house as soon as Respond-
ent learned of employee union activity. I find that Malheiro
was discharged in violation of Section 8(a)(3) of the Act.
Joseph Malheiro was one of the four named as September
24 dischargees. I find herein that Malheiro was discharged
and that a pretextuous reason was advanced as the grounds.
The evidence illustrated that Respondent moved too fast in
deciding to discharge those four employees. Respondent
clearly acted too hastily in the September 24 discharge of
Jerry Medlin Jr. When confronted with the weakness in its
position, Medlin was reinstated on that same day, but Medlin
was warned that he would be discharged if he messed up
again and that Respondent did not want to deal with lawyers
and the unions. Guy Polhemus had also said on September
24, that he didn’t ‘‘need to spend money on lawyers for this
union bull shit.’’
It appears that after learning of the union campaign Re-
spondent decided to discharge four employees that appeared
vulnerable to discharge. There was evidence in the form of
a memo from a customer, that a driver was pilfering cans.
Respondent seized on that to discharge Medlin. Shortly
thereafter Peter Levy was confronted with unrebuttable evi-
dence that Medlin could not have been guilty of the pilferage
alleged in the memo because he was not first employed until
over a year after the alleged pilferage started.
Malheiro appeared vulnerable because he did not have a
current drivers’ license and Respondent was fully aware of
that situation. However, the record showed that Malheiro had
done everything necessary to reinstate his license and Peter
Levy knew that it was simply a matter of time before the
State mailed Malheiro’s license. Respondent had known of
Malheiro’s license situation for over a year but had never
warned Malheiro that he had a deadline to secure his license.
At the time of his discharge Malheiro had done everything
Respondent has asked him to do and he was closer to getting
his license renewed than at any time during his employment
with Respondent.
Joseph Malheiro had signed an authorization card for the
Union on September 5, 1992. The credited evidence which
was unrebutted, shows that, at the time of his discharge Peter
Levy knew that Malheiro had removed all impediments to
his license suspension and was awaiting his license in the
mail. However, Respondent seized on that longstanding situ-
ation to discharge Malheiro. I am convinced that Respondent
used Malheiro’s suspension as a pretext. He was actually dis-
charged because of the employees’ union activities.
Northport Health Services v. NLRB, 961 F.2d 1547 (11th
Cir. 1992); Control Services, 305 NLRB 435 (1991).
After consideration of the above evidence, along with the
credited evidence showing that Respondent first learned of
the union campaign on the day before Malheiro’s discharge
and the animus established by Respondent’s illegal action on
the day of Malheiro’s discharge, I find that the General
Counsel proved, prima facie, that Malheiro was discharged
because of the employees’ union activities. Respondent has
offered no evidence that Malheiro would have been dis-
charged even if it had not been for pretextual reasons.
During the week that followed Malheiro’s discharge, Re-
spondent interrogated several of its employees whether Gene
DiMurro and Jerry Medlin had started the union activity. Just
6 days after Angela Sylvestre first learned of the Union’s
campaign on September 25, Sylvestre told the drivers that
she found them to be uncooperative and that she did not
want to work with uncooperative people. Respondent termi-
nated Gene DiMurro, Clifton Harrison, Jerry Medlin Jr.,
Scott Stockdale, Anthony Velez Jr., Lance Mitchell, and Par-
ris Bastian.
Angela Sylvestre testified that she decided to terminate the
seven employees on September 30 to restructure the collec-
tion network. Sylvestre testified that she made that decision
after talking with sorter supervisor, Raymond Vega, and
being told that the drivers had told Vega that they were
being laid off by Sylvestre and they did not care because
they could draw unemployment. I do not credit the testimony
of Angela Sylvestre regarding the reason why seven employ-
ees were terminated on September 30, 1992. The record evi-
dence supports the General Counsel’s contention Respondent
terminated all eight employees because of its employees’
union activities. All the terminated employees signed union
authorization cards before their termination. Malheiro,
DiMurro, and Medlin signed their cards on September 5,
1992. Clifton Harrison signed an authorization card on Sep-
tember 8, 1992. Velez, Mitchell, and Stockdale, all signed
authorization cards on September 29. Bastian dated his au-
thorization card August 29, 1992.
183WE CAN, INC.
The credited testimony of Gene DiMurro shows that Re-
spondent suspected Jerry Medlin with starting the Union.
Gene DiMurro was questioned, as shown above, as to wheth-
er Medlin started the union activity. As shown above, Re-
spondent was correct. Medlin was the employee that started
the union activity.
I have credited the testimony of Gene DiMurro. DiMurro
appeared to testify candidly on both direct and cross and I
was impressed with his demeanor. I credited DiMurro’s testi-
mony regarding events on September 24. On that day
DiMurro was questioned about the Union by first, Guy
Polhemus. Then DiMurro was called into Peter Levy’s office
where Levy told him that he was going to discharge four
drivers.
It is apparent, and I find, that Respondent had made a
hasty decision to discharge four employees after learning of
the employees’ union activities. That finding is supported by
the record which shows that Respondent had not bothered to
investigate its alleged basis for discharging the four employ-
ees. Jerry Medlin, was not even employed when the alleged
pilferage began.
Two others were not discharged after Peter Levy told
DiMurro that he planned to discharge them. Only Malheiro
was actually discharged that day and, as shown herein, Re-
spondent based Malheiro’s discharge on pretextuous grounds.
The terminated employees all attended a meeting at the
union attorney’s office on September 29. The credited testi-
mony of Gene DiMurro shows that Peter Levy questioned
him about what was going on that night and Levy’s ques-
tions illustrated that he suspected the employees were in-
volved in union activity while the trucks were parked. An-
gela Sylvestre met with the employees the next morning and
stated that the drivers were uncooperative and that she did
not want to work with uncooperative employees. I find that
the General Counsel proved a prima facie case that Respond-
ent terminated all eight employees because of their union ac-
tivities. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
Respondent, at various points, argued that the discharges
were caused by a number of factors. As to the September 30
discharges, Angela Sylvestre testified that she decided to dis-
charge the employees after talking with Sorter Supervisor
Raymond Vega. Vega told her, among other things, that the
drivers had told him they did not care whether Sylvestre laid
them off because they could draw unemployment. Sylvestre
decided after hearing that, to lay off seven employees.
Sylvestre did not question which drivers made those state-
ments to Vega, however, and she decided to retain three em-
ployees without knowing whether those three made com-
ments about not caring if they were laid off.
Sylvestre also testified that she decided to consider reduc-
ing the size of the collection network after the drivers left
three of the trucks parked on the street after work on Sep-
tember 29. However, there was no showing that Respondent
made an effort to determine which employees were respon-
sible for that action.
Angela Sylvestre testified that upon discovering three
trucks were still on the street around 5:30 p.m. on September
29, there was consideration to having the trucks towed.
When the parking area was phoned to tow the trucks the
drivers had arrived there with the three trucks. She spoke
with Jerry Medlin and Medlin told her the drivers wanted to
eat together and they had waited to park the trucks until they
finished dinner. At that time Sylvestre discussed the situation
with Guy Polhemus, Bennett Welikson, and Jeff Dorsey.
On redirect examination Sylvestre testified that she felt the
drivers were acting as a group when they left the trucks
parked on the street on September 29. The evidence regard-
ing another of Respondent’s supervisory agents shows more.
Peter Levy talked with Gene DiMurro after 6 p.m. Levy’s
comments established that Respondent felt the employees
were involved in union activity while the three trucks were
parked on the street.
Respondent points to testimony of Anthony Steele that
Peter Levy told him they may have to lay off people if per-
formance did not improve and that Respondent would keep
Steele, Brown, and Castro. However, Respondent failed to
show that performance was a consideration in its September
30 decision.
Sylvestre testified that she did not consider employee per-
formance in deciding to lay off the seven employees on Sep-
tember 30. She terminated the employees because she had
decided to restructure the collection network. However, in
consideration of retaining Mark Castro, she did consider rec-
ommendations from Peter Levy and Raymond Vega that
Castro was a good worker as well as comments by Levy that
he was happy with Brown and Steele’s performance. On
cross-examination Sylvestre was shown a prior deposition
she made where she stated that Levy had recommended
DiMurro, Stockdale, Castro, Brown, and Steele as good
workers. She testified that she was mistaken in that deposi-
tion as to DiMurro and that she now recalls that Levy did
not recommend DiMurro but he may have recommend
Stockdale as well as the three retained drivers.
Sylvestre also contended that the discharges were caused
by economic difficulties.
Angela Sylvestre testified that expenses were increasing
and it was necessary to implement a five-bag minimum in
late summer 1992 as opposed to the former one-bag mini-
mum. The record proved that Sylvestre was disappointed and
felt the drivers were uncooperative, because of their union
activities. However, despite testimony from Sylvestre that it
was necessary to cut expenses, Respondent’s records illus-
trated that, at the time Sylvestre made the decision to reduce
the size of the collection network, Respondent was in no
worse fiscal shape that it had been on other occasions.
During August 1991 Respondent had a surplus of over
$7500; in September 1991 the surplus was $4500; in October
there was a $6800 surplus; in November a surplus of $3300;
in December 1991 the surplus was $3200; in January 1992
there was almost a $6000 deficit; in February the deficit was
over $11,600; in March there was a $4700 surplus; in April
the surplus was over $4400; in May there was a $14,316 def-
icit; in June the deficit was $14,671, and in July 1991 the
deficit was reduced to $3560. In August 1991 Respondent re-
duced the deficit to $369.13. In September the deficit was in-
creased to $5627 but Respondent did not have the September
figures or the final August figures, available for consider-
ation at the time it discharged the seven employees on Sep-
tember 30.
Additionally, Respondent argued that it was advised by
Gerald Smith, its financial advisor, to lay off drivers. The
record showed that Smith made that recommendation in the
spring of 1992. However, there was never a showing that fi-
184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nancial records supported eliminating three, two, or even
one, of Respondent’s trucks. In fact the evidence showed that
Respondent had several years remaining on 6-year leases of
the trucks and, at the time of this hearing, Respondent had
retained all five of its trucks.
Sylvestre admitted that she did not consult with Respond-
ent’s financial advisor, Gerald Smith, about the restructuring
decision. Sylvestre testified that she decided to focus on the
large clients rather than the small clients that may have one
bag of cans or less on occasion. Sylvestre admitted that she
did not examine her list of clients before laying off the seven
employees. Sylvestre also admitted that she had not decided
what to do with the extra trucks when she decided to lay off
the employees on September 30. She testified that she was
planning on using only two of the five trucks. She planned
to use two drivers on one truck and one driver on the second
truck.
Sylvestre admitted that she met with Guy Polhemus after
receiving the fax with the Union’s petition to the NLRB. She
admitted that she commented to Polhemus that the employ-
ees had been given benefits and ‘‘what more do you have
to do to have unity, to have cooperation, to have a sense that
you’re working together.’’ Sylvestre also admitted giving a
deposition that included a statement that she considered their
loyalty in deciding to retain Castro, Brown, and Steele.
The evidence shows that Angela Sylvestre was the agent
of Respondent that made the decision to discharge seven col-
lection network employees during the workday of September
30, 1992. On September 23, just 1 week earlier, Sylvestre
admittedly walked out of an office because she was angry
that Peter Levy had decided to discharge four collection net-
work employees.
Two days later, Sylvestre admittedly first learned of the
Union’s 1992 campaign to organize the collection network
employees. She had not known about the union campaign
when she became angry over Levy’s decision to fire four
collection network employees. Five days after being told by
Polhemus of the union campaign, it was Sylvestre, not Levy,
that decided on short notice, to discharge seven collection
network employees. Only one thing had changed since
Sylvestre became angry at the thought of discharging em-
ployees Jerry Medlin Jr., Lance Mitchell, and Parris
Bastian—three of the four employees that Levy wanted to
discharge on September 24. On September 30, Sylvestre dis-
charged those three plus four more collection network em-
ployees. That one change was Sylvestre’s learning of the
drivers’ union campaign.
In view of the above, it is obvious, that although Respond-
ent may have been in poor financial condition, that condition
had existed for quite some time. Sylvestre, after thinking
about the issue, according to her testimony, for less than a
day, decided to take an action that had angered her during
the previous week. She took that action without fully exam-
ining Respondent’s situation. For example, she did not check
out Respondent’s obligations under its leases of its trucks.
She did not check with Respondent’s financial consultant
even though Respondent had routinely consulted Gerald
Smith for several years.
In view of the full record including Sylvestre’s testimony
which shows that she decided to terminate seven employees
on September 30, because she found them uncooperative, I
find that economics was not the actual reason behind the de-
cision to lay off the employees.
I am convinced that Respondent used its economic condi-
tion as a pretext to lay off seven of its employees on Sep-
tember 30, 1992, because of their protected union activities
and that those employees would not have been laid off in the
absence of their union activities. Northport Health Services
v. NLRB, 961 F.2d 1547 (11th Cir. 1992); Control Services,
305 NLRB 435 (1991); Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982).
Moreover, Respondent’s advisor, Gerald Smith, testified
that Respondent could not maintain fixed expenses with only
one or two trucks. Smith testified that more volume was
needed to support Respondent’s infrastructure. He testified
that the figures continue to show that Respondent must either
reduce its infrastructure (which had not occurred at the time
of Smith’s testimony), or the revenue represented by volume
must be increased. In order to increase volume it is necessary
to increase the number of trucks. Additionally, Smith testi-
fied that operation of each truck with less than two employ-
ees was not shown to be efficient.
The full record does not support Respondent’s contention
that its September layoffs were motivated by Respondent’s
economic condition. I find that the record evidence did not
show that Respondent would have discharged the eight al-
leged discriminatees in the absence of its employees’ union
activities.
In its answer, Respondent contended there were licensing
impediments to Malheiro, Mitchell, Harrison, Bastian,
DiMurro, Medlin, and Velez driving a commercial vehicle in
the city of New York. The evidence herein failed to establish
that Respondent discharged any of those employees for that
reason. I find that Respondent failed to prove that it would
have discharged any of the eight employees in the absence
of protected activities.
Gerald Smith made financial recommendations to Re-
spondent. In November 1991 Smith submitted a report to Re-
spondent showing that based on 4.5 trucks in use, the addi-
tion of more trucks would result in improved revenue. Each
truck contributed $11,500 per month with a margin of 2000
per month. Therefore, each new truck added should have
contributed approximately 24,000 margin per year. Smith tes-
tified that his recommendation continued to hold true through
the fall of 1992.
Smith made a November 1991 recommendation to reorga-
nize the collection network, but that recommendation did not
involve the reduction in the number of drivers or other em-
ployees. Smith testified that his recommendation was for the
collection network to grow rather than to reduce the number
of employees. According to Smith, however, the volume de-
creased and expenses continued to increase resulting in him
changing his recommendation to one of reducing the number
of trucks. Smith admitted that he did not examine leases on
the trucks and was unable to determine what costs would be
involved in a reduction of use of trucks. Smith made rec-
ommendations to Respondent in the spring of 1992. Smith
made written reports on April 21, June 2, and July 1 and 27,
1992.
The record failed to show that anything occurred which
significantly changed Respondent’s economic condition.
Smith testified that he may have said that Respondent could
185WE CAN, INC.
benefit from changing to high density routes and that Re-
spondent may have benefited from following that advice and
changing to four or three trucks. However, there was no
showing that a study was made into that situation. There was
no showing of facts supporting a change to high density
routes with a reduction of one or two trucks and there was
no showing how the leases of the trucks would have im-
pacted on such a consideration. Smith admitted that he was
not aware of the details of the leases.
In consideration of Smith’s recommendations, there was
no recommendation that would have resulted in elimination
of 8 of the 11 drivers and assistants. His comments indicated
a possible reduction of one or two trucks. If implemented
that would have resulted in a 20- to 40-percent reduction. At
the end of September Respondent reduced its drivers and as-
sistants by over 77 percent.
Smith testified that he was surprised by Respondent’s ac-
tion in laying off 8 of its 11 drivers in September. Smith re-
called that at that time Polhemus told him ‘‘that he had a
problem with the drivers and the fracas that had occurred,
and it was a surprise to me.’’ Smith found a note in his diary
on October 1, 1992, that the drivers had gone on strike, they
want to be unionized.
The Barganing Order and Other Appropriate Remedies
I find that Respondent did temporarily reduce its collection
network operations on September 30 because of its employ-
ees’ union activities. Despite evidence that Respondent con-
tinued to have economic problems, the full record proved
that was not the reason for Respondent’s September 30 deci-
sion to temporarily reduce the size of the collection network.
Respondent took that action because of its collection network
employees’ union activities.
Such a finding is significant in regard to the remedy. Nor-
mally in a discharge situation, the employer is directed to re-
instate the employee but, in the event the employees former
job no longer exists, the employer is directed to reinstate the
employee in a substantially equivalent position. Here, Angela
Sylvestre admittedly decided to restructure the entire collec-
tion network by reducing its size from 11 to 3 employees.
I have found herein that she made that decision because of
the employees’ union activities and that she would not have
made that decision on September 30 absent the employees’
union activities. In view of that finding it is proper and nec-
essary to direct Respondent to restore the collection network
to its size as of September 29, 1992. MPC Plating, Inc., 295
NLRB 583 fn. 2 (1989)
The complaint alleged that the following described bar-
gaining unit was an appropriate unit:
All collection network drivers and driver assistants
employed by Respondent at its facility, excluding all
clerical employees, and guards, professional employees
and supervisors as defined in the act.
Gene DiMurro testified on cross-examination that Parris
Bastian, Ralph Brown, Mark Castro, Tina Murrow, Clifton
Harrison, Joseph Malheiro, Jerry Medlin, Lance Mitchell,
Anthony Steele, Scott Stockdale, and Anthony Velez were in
the bargaining unit in September 1992.
Jerry Medlin Jr. identified authorization cards signed in his
presence by Gene DiMurro, Joseph Malheiro, himself, Mark
Castro, Clifton Harrison, Ralph Brown, Anthony Velez, An-
thony Steele, Lance Mitchell, Scott Stockdale, and Parris
Bastian. All those employees were drivers and driver assist-
ants for Respondent. That evidence shows that the Union
sought to organize employees in the bargaining unit alleged
as an appropriate unit.
Counsel for the General Counsel argued that the above-de-
scribed bargaining unit is an appropriate bargaining unit. Re-
spondent contended that an appropriate unit should include
the sorters. The credited evidence proved that the Union en-
gaged in organizing activity among the drivers and driver as-
sistants. There was no evidence that the Union sought to or-
ganize among the sorter employees. The Union may petition
for an appropriate unit as opposed to the appropriate unit.
See Omni Dunfey Hotel, 283 NLRB 475 (1987). The Board
has consistently held that a unit limited to truckdrivers is an
appropriate unit. Mc-Mor-Han Trucking Co., 166 NLRB 700
(1967). The evidence showed that the unit sought by the
Union is an appropriate unit.
As shown above, the Union made a demand for recogni-
tion on September 28, 1992. On September 29, 11 drivers
and driver assistants had signed authorization cards to be rep-
resented by the Union. Ten of those drivers and driver assist-
ants were employed on September 11 and another had been
discriminatory discharged on September 24 because of his
union activities. That evidence proved that the Union rep-
resented substantially more than 50 percent of the employees
in the unit found appropriate.
In view of my findings herein that Respondent engaged in
significant and pervasive unlawful conduct beginning shortly
after it learned of its employees’ union activities and continu-
ing until after the Union made its bargaining demand, I find
that Respondent’s unlawful activities did tend to undermine
the Union’s majority status and it is unlikely that the em-
ployees will be able to express their true sentiments in an
election. I find that a bargaining order should issue requiring
Respondent to recognize and bargain with the Union as rep-
resentative of the employees in the above-described collec-
tive-bargaining unit. Gissel Packing Co., 395 U.S. 575
(1969); MPC Plating, Inc., 295 NLRB 583 (1989); Salvation
Army Residence, 293 NLRB 944 (1989).
CONCLUSIONS OF LAW
1. Respondent engaged in conduct in violation to Section
8(a)(1) of the Act by threatening its employees with dis-
charge because of their activities on behalf of Bakery Drivers
& Bakery Goods Vending Machines, Local 550, I.B.T., a
labor organization; by coercively interrogating its employees
about their activities on behalf of the Union; by warning its
employees against involving themselves in union activities
and by implying to its employees that it had discharged em-
ployees because of their union activities.
2. Respondent by discharging and refusing to reinstate its
employees Joseph Malheiro, Gene DiMurro, Jerry Medlin Jr.,
Clifton Harrison, Scott Stockdale, Anthony Velez Jr., Lance
Mitchell, and Parris Bastian, and by reducing the size of its
collection network, because of its employees’ activities on
behalf of the Union, has engaged in conduct in violation of
Section 8(a)(1) and (3) of the Act.
3. Respondent by refusing to recognize and bargain with
Bakery Drivers & Bakery Goods Vending Machines, Local
550, I.B.T., following demand for recognition from the
186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
2 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Union at a time when the Union represented a majority of
the employees in the below-described collective-bargaining
unit, while it engaged in conduct in violation of provisions
of the Act, engaged in conduct in violation of Section 8(a)(1)
and (5) of the Act:
All collection network drivers and driver assistants em-
ployed by Respondent at its facility, excluding all cleri-
cal employees, and guards, professional employees and
supervisors as defined in the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that Respondent has illegally reduced the
size of the collection network, and has illegally discharged
its employees Joseph Malheiro, Gene DiMurro, Jerry Medlin
Jr., Clifton Harrison, Scott Stockdale, Anthony Velez Jr.,
Lance Mitchell, and Parris Bastian, I shall order Respondent
to offer Malheiro, DiMurro, Medlin, Harrison, Stockdale,
Velez, Mitchell, and Bastian full and immediate reinstate-
ment to their former positions and to restore the collection
network to its former size. I further order Respondent to
make Malheiro, DiMurro, Medlin, Harrison, Stockdale,
Velez, Mitchell, and Bastian whole with interest, for any loss
of earnings they suffered as a result of the discrimination
against them and that Respondent remove from its records
any reference to the unlawful actions against Malheiro,
DiMurro, Medlin, Harrison, Stockdale, Velez, Mitchell, and
Bastian, and notify each of them in writing that Respondent’s
unlawful conduct will not be used as a basis for further per-
sonnel action. Backpay shall be computed as described in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as
described in New Horizons for the Retarded, 283 NLRB
1173 (1987).
Having found that Respondent has illegally refused to rec-
ognize and bargain with the Union as representative of the
employees in the below described collective-bargaining unit,
I shall order that on request by the Union, Respondent must
recognize and bargain with the Union:
All collection network drivers and driver assistants
employed by Respondent at its facility, excluding all
clerical employees, and guards, professional employees
and supervisors as defined in the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
Pursuant to Section 10(c) of the National Labor Relations
Act, it is ordered that Respondent, We Can, Inc., New York,
New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with discharge because of
their activities on behalf of Bakery Drivers & Bakery Goods
Vending Machines, Local 550, I.B.T., or any other labor or-
ganization; coercively interrogating its employees about their
union activities; warning its employees not to engage in
union activities and implying to its employees that it has dis-
charged its employees because of their union activities.
(b) Discharging and refusing to reinstate its employees,
and reducing the size of its collection network, because of
its employees union activities.
(c) Engaging in conduct in violation of Section 8(a)(1) and
(5) of the Act by refusing to recognize and bargain, upon re-
quest, with Bakery Drivers & Bakery Goods Vending Ma-
chines, Local 550, I.B.T. as the exclusive collective-bargain-
ing agent of the employees in the below described unit:
All collection network drivers and driver assistants
employed by Respondent at its facility, excluding all
clerical employees, and guards, professional employees
and supervisors as defined in the Act.
(d) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer employees Joseph Malheiro, Gene DiMurro,
Jerry Medlin Jr., Clifton Harrison, Scott Stockdale, Anthony
Velez Jr., Lance Mitchell, and Parris Bastian, immediate and
full reinstatement, and restore the collection network to its
size as of September 29, 1992, and make Joseph Malheiro,
Gene DiMurro, Jerry Medlin Jr., Clifton Harrison, Scott
Stockdale, Anthony Velez Jr., Lance Mitchell, and Parris
Bastian, whole for any loss of earnings plus interest, they
suffered by reason of its illegal actions.
(b) Rescind its discharge of Joseph Malheiro, Gene
DiMurro, Jerry Medlin Jr., Clifton Harrison, Scott Stockdale,
Anthony Velez Jr., Lance Mitchell, and Parris Bastian, and
remove from its files any reference to those actions and no-
tify each of those employees in writing that this has been
done and that evidence of its unlawful actions will not be
used against them in any way.
(c) On request, recognize and bargain with Bakery Drivers
& Bakery Goods Vending Machines, Local 550, I.B.T. as the
exclusive collective-bargaining agent of the employees in the
below-described unit:
All collection network drivers and driver assistants
employed by Respondent at its facility, excluding all
clerical employees, and guards, professional employees
and supervisors as defined in the Act.
(d) Post at its facility in New York, New York, copies of
the attached notice.2 Copies of the notice, on forms provided
by the Regional Director for Region 2, after being signed by
the Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and maintained
187WE CAN, INC.
for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.