EAST SIDE SANITATION SERVICE, INC.
East Side Sanitation Service, Inc. and International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local 20. Case
8-CA-9780
March 2, 1978
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On June 30, 1977, the Board issued its Decision
and Order Remanding the Proceeding to the Admin-
istrative Law Judge in the above-entitled proceeding,
finding that the Respondent met the Board's discre-
tionary standard for a nonretail enterprise and
requesting a full decision on the merits.' On October
6, 1977, Administrative Law Judge Elbert D. Gads-
den issued the attached Supplemental Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Supplemental Decision in light of the
exceptions and brief and has decided to affirm the
rulings, findings, 2 and conclusions of the Administra-
tive Law Judge, except as modified herein, 3 and to
adopt his recommended Order,4 as modified herein.
AMENDED CONCLUSIONS OF LAW
1. Delete Conclusion of Law 4 and renumber the
succeeding paragraphs accordingly.
2. Delete Conclusion of Law 8 and substitute the
following:
"By recalling employees Russell Browning and
George Miller to work and advising them not to
discuss the Union, labor relations, or anything that
happened during the past several months (union
230 NLRB 632 (1977).
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91
NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
3 We do not adopt the Administrative Law Judge's finding of an 8(aX I)
violation based on the impression of surveillance. In our judgment the
statements attributed to Office Manager Barton, whether as testified to by
employee Browning or employee Dutcher. are ambiguous in nature.
According to Browning. he asked Barton, after the September 26 employee
meeting, if the company president knew about "it," while Dutcher's
testimony implies that Barton introduced the issue of company knowledge
by chiding them about not being very nice to "Elmer" and saying that he,
Elmer, already knew about "it" and was waiting to hear it from them. In all
the circumstances we assume that "it" referred to the Union and the
234 NLRB No. 168
activity), Respondent violated Section 8(a)(1) of the
Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, East Side Sanitation Service, Inc., Genoa, Ohio,
its officers, agents, successors, and assigns, shall take
the action set forth in the Administrative Law
Judge's recommended Order, as so modified:
1. Delete paragraph i(b) and renumber the fol-
lowing paragraphs accordingly.
2. Substitute the following for paragraphs 2(a)
and 2(b):
"(a) Offer Melvin Cogan, Terry Edwards, and Paul
Stevens reinstatement to their former positions or, if
such positions no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or other rights previously enjoyed, and make
them whole for any loss of pay suffered by reason of
the discrimination against them, with interest, as
prescribed in F. W. Woolworth Company, 90 NLRB
289 (1950), and Florida Steel Corporation, 231 NLRB
651 (1977).
"(b) Make Russell Browning and George Miller
whole for any loss of earnings suffered by reason of
the discrimination against them with interest, in the
manner prescribed herein."
3. Insert the following as paragraph 2(c) and
reletter the subsequent paragraphs accordingly:
"(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order."
4. Substitute the attached notice for that of the
Administrative Law Judge.
organizing efforts, but find it unreasonable to infer that the impression of
surveillance of employee union activity resulted from the Browning-Dutch.
er-Barton conversation. See Byrne Dairy, Inc., 176 NLRB 312, fn. 2 (1969)
Additionally, we note that the Adminustrative Law Judge inadvertently
omitted Russell Browning from Conclusions of Law 8, and also failed to
include discriminatee Terry Edwards in par. 2(a) of his Order. We hereby
amend the Conclusions of Law and the Order accordingly. Although no
exceptions were filed with respect to such omissions, we find that the issues
involved were fully litigated. Finally, we shall delete the names of Paul
Stevens and Melvin Cogan from par. 2(b) of the Order as the record does
not show that they have been recalled.
4 The Administrative Law Judge, citing Florida Steel Corporation, 231
NLRB 651 (1977). inadvertently specified interest to be paid at 7 percent;
however, there the Board stated that interest will be calculated according to
the "adjusted prime rate" used by the U.S. Internal Revenue Service for
interest on tax payments. See, generally, Isis Plumbing & Hearing Co., 138
NLRB 716(1962).
1099
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that those portions of the
complaint as to which no violations have been found
are hereby dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
I WE WILL NOT discourage membership in Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local
20, or any other labor organization:
(a) By coercively interrogating employees
about their union interest or activities.
(b) By threatening employees with loss of
their jobs if they do not stop organizing a
union.
(c) By threatening employees with shut-
down of business operations if they organize
a union.
(d) By discriminatorily laying off employ-
ees.
(e) By recalling employees to work and
advising them not to discuss the Union,
labor relations, the National Labor Rela-
tions Board, or any other related organizing
activity of the recent past.
(f) By advising other employees not to
discuss the Union or the employees' orga-
nizing activities of the past.
WE WII.L NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
and enjoyment of rights guaranteed them by
Section 7 of the National Labor Relations Act,
except to the extent that such rights may be
affected by lawful agreements in accord with
Section 8(a)(3) of the Act.
WE WILL offer Melvin Cogan, Terry Edwards,
and Paul Stevens, immediate and full reinstate-
ment to their former positions or, if such positions
no longer exist, to substantially equivalent ones,
without prejudice to the seniority and other rights
and privileges enjoyed by them, and make them
whole for any loss of pay they may have suffered
by reason of their layoff, with interest.
WE WILL make Russell Browning and George
Miller, whole for any loss of earnings suffered by
reason of the discrimination against them, with
interest.
WE WILL recognize and, upon request, bargain
collectively with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Local 20, as the exclusive repre-
sentative of the employees found herein to consti-
tute an appropriate unit, and, if an understanding
is reached, embody such agreement in a written,
signed contract. The bargaining unit is:
All drivers, helpers and mechanics, exclud-
ing office clerical employees, and profession-
al employees, guards and supervisors as
defined in the Act.
All our employees are free to become, remain, or
refuse to become or remain members of Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local 20, or any
other labor organization.
EAST SIDE SANITATION
SERVICE, INC.
SUPPLEMENTAL DECISION
ELBERT D. GASDEN, Administrative Law Judge: Upon
an unfair labor practice charge filed on January 29, 1976, a
complaint was issued by the Regional Director for Region
8 on March 3, 1976, alleging that the Respondent inter-
fered with, coerced, and restrained its employees, by giving
them the impression that they were under surveillance for
their union interest and/or activities, by so interrogating an
employee as to create the impression of surveillance of his
union interest or knowledge of union activity, and by
threatening an employee with closedown of its operations if
the employees designated the Union as their collective-
bargaining representative, all in violation of Section 8(a)(l)
of the Act; that the Respondent laid off and/or terminated
several of its employees, and thereafter refused to reinstate
them because it believed they had assisted the Union
and/or engaged in protected concerted activities, in viola-
tion of Section 8(a)(3) of the Act; and that the Respondent
unilaterally changed the prior wage policy of its employees
and unilaterally offered its truck operators a bonus if they
would voluntarily perform their duties without assistance,
in violation of Section 8(a)(5) of the Act.
In its answer, the Respondent not only denied the
allegations set forth above, but also denied the Board's
jurisdiction to litigate the allegations.
This case was held before me in Toledo, Ohio, on July 29
and 30, 1976. Briefs have been received from counsel for
the General Counsel and counsel for the Respondent,
respectively, which have been carefully considered.
Upon the entire record in this case and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. JURISDICTION
The Respondent is now, and has been at all times
material herein, an Ohio corporation, with its office and
only place of business located in Genoa, Ohio, where it is
engaged in the collection and disposal of solid refuse.
1100
EAST SIDE SANITATION SERVICE, INC.
In its original Decision herein (230 NLRB 632) of June
30, 1977, the Board held that since the Respondent's total
direct and indirect inflow of goods and materials exceeded
$50,000 for a nonretail enterprise, the Board's discretionary
jurisdictional standard had been satisfied and that it
therefore asserts jurisdiction in the instant proceeding.
Accordingly, I find herein that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local 20, herein
called the Union. is now, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
At its Genoa, Ohio, location, the Respondent is engaged
in the business of collecting and disposing of solid refuse.
Its business operation consists of dispatching trucks with
one or two men who empty containers of trash into the
trucks where it is compacted and thereafter transported to
the sanitary landfill and dumped. The Respondent serves
residential and commercial customers for several counties
of Toledo, namely, Lucas, Wood, Ottawa, and Sandusky,
which involves an average of 50 miles. The Respondent has
been in business since 1946 and now has 10,000 customers,
250 of whom are commercial. It operates six packer trucks,
a rolloff, and a pickup truck. The entire operation is
conducted with approximately 15 employees.
During the month of September 1975,' the Respondent's
employees proceeded to organize a union. Shortly thereaf-
ter, the Respondent laid off five of its employees. The
Union contends the employees were laid off because they
engaged in union activity and the Respondent contends the
employees were laid off for economic reasons. The Union
also contends that the Respondent engaged in other
interfering, restraining, and coercive conduct in violation
of the Act. The Respondent denies that it engaged in any
conduct violative of the Act.
B. The Union Activities of the Respondent's
Employees and the Respondent's Actions Thereafter
A composite of the essentially undisputed and credited
evidence of record established that the Respondent had a
total of about 15 employees (essentially truckdrivers and
helpers); that employee Russell Browning, accompanied by
fellow employee George Miller, was the principal distribu-
tor of union authorization cards and the principal solicitor
for union support. Browning was also the principal collec-
tor of cards signed by the following employees on the
following dates:
Hereinafter, all dates refer to the year 1975 unless specifically indicated
otherwise.
2 I do not credit President Asman's explanation as to why he asked the
employees, so emphatically, if they had anything to say, not only because I
Russell Browning - 9-19-75; Melvin Cogan - 9-19-
75; Russell Shiffler - 9-20-75; Terry Edwards - 9-22-
75; William Snyder - 9-21-75; Charles Snyder - 9-20-
75; Daniel Root - 9-21-75; Gary Baker - 9-22-75;
George Miller - 9-20-75; John Dutcher - 9-19-75;
Raymond Larcom - 9-20-75; Robert Pease - 9-25-75;
and Paul Stevens - 10-11-75.
Russell Browning also submitted most, if not all, of the
13 above-identified signed union cards to the Union.
Richard Eddington, director of organizing for the Union,
credibly testified that he received the signed cards on
September 26.
It was further established by essentially undisputed and
corroborated testimony of witnesses for the Union and the
Respondent alike that the Respondent (Elmer F. Asman)
called a meeting of employees on Friday, September 26.
During this meeting, President Asman told the employees
that the Company was receiving a lot of costly breakdowns
on its trucks and he would not be able to afford employee
raises until such costly breakdowns subsided; and that
there was a hacksaw and a set of easy-outs wrenches
missing, and whoever had them could return them. He said
starting Monday, September 29, he would assign a driver to
each truck and that if a breakdown of a truck was
occasioned by the driver, he (the driver) would be out of a
job. President Asman then asked the employees, collective-
ly and individually, if they had anything to say-get off
their chest-and there was no response.
The Respondent's president, Elmer F. Asman, testified
that, when he asked the employees if they had anything to
say at the end of the September 26 meeting, he was simply
trying to ascertain what the problem was, because he knew
there was something going on, he was upset about missing
tools, and he sensed tension among the employees for
which he wanted an explanation. He denied he knew that
the employees were engaged in union activity. 2
Russell Browning testified that, after the employees'
meeting on September 26, the Respondent's bookkeeper,
Mary Barton, in the presence of a fellow employee, John
Dutcher, said, "what we are doing to Elmer wasn't very
nice, or wasn't right," and she said she worked in a place
that had "that and it wasn't a very nice place to work."
Browning said they then asked Mary Barton if Elmer
Asman knew about "it," and she said, "Yes." They asked
her when did he find out and she said that morning
(September 26).
John Dutcher testified that immediately after the em-
ployees' meeting on Friday, September 26, Mary Barton
said to himself and Russell Browning that Asman was
sitting in there waiting for them to tell about what was
going on and no one said anything, but he already knew
about "it," he just wanted to hear it from them. She then
said that they tried to get a union where she used to work,
and that it did not help, it just made it worse.
Mary Barton acknowledged that she was part of a
September 26 conversation with Browning and Dutcher,
but she testified that the conversation was as follows:
was not persuaded by his demeanor that he was testifying truthfully, but
also because more than a preponderance of the other credited evidence
discussed, infra, clearly indicates otherwise.
1101
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Well, the only thing, that was a long time ago.
I'm thinking I remember it was that Russell wanted to
know why we had the meeting and I told him it was for
the same reasons we always had them and if he had a
problem, he was to tell Elmer what it was.
Q. Was there anything else discussed on that
occasion with them?
A. He made the remark, well, it's too late now,
you're gonna get a letter. He didn't say what was in the
letter or who it was from.
Mary Barton denied she used the word "union" or such
references as "it and "that," but, instead, referred to a
"problem" because she was referring to the problem of
tension, that is, the drivers not carrying out orders, etc.3
A composite of the essentially undisputed and corrobo-
rated testimony of record established that at 7:30 a.m. on
the following Monday morning, September 29, President
Asman called all employees into his office. After sending
most of the employees on their respective routes of
collection, he then called Terry Edwards, Melvin Cogan,
Paul Stevens, Russell Browning, and George Miller, and
without any prior warning, suddenly laid them off without
any estimated date of recall.
When they were laid off, Melvin Cogan said Asman gave
him his layoff slip and said this was the hardest part of
being an employer, but that there was also a lack of work
and he would be recalled if business picked up. Browning
said he recalled Asman saying he was broke, and he, in
response thereto, said, "All we want is a few pennies out his
pocket, not the whole Company."
President Asman testified that the ;ayoffs were as
follows:
A. The first three, I called into my office at the
same time.
Q. All right.
A. Edwards, Cogan, and Stevens, and then I called
George Miller in and Russell Browning.
Q. All right. Well, we have then three different
times that you laid people off, in terms of groups, so for
the first group with Edwards, Cogan and Stevens, what
did you tell them the reason for the layoff as being?
A. I told 'em I was sorry but it had come to the
point where I must, financially or otherwise, lay them
off and-
Q. What do you mean "otherwise"?
A. No need for their labor if I can't pay 'em. If I
can't pay 'em, I can't keep 'em.
Q. And as to this first group, what was their
reaction to this statement?
3 While the testimonial versions of Browning and Dutcher are by no
means identical. I nevertheless do not find that they are significantly
inconsistent. More importantly, they are mutually corroborative on the
statement about the employees not being very helpful or kind to Asman,
and on the statement that Asman knew about "it" or the "union." In other
respects, I attribute the differences in their respective versions to one witness
(Browning) remembering aspects of the conversation which the other
witness (Dutcher) did not remember and vice versa. I find such differences
in testimonial versions quite normal and by no means necessarily untruthful.
I do not credit Mary Barton's version of the conversation because she
admitted a part of Browning and Dutcher's version, in that she expressed
her dissatisfaction about how the employees were not cooperating or
A. They took their slips and went out the door.
Q. Then, who did you talk to next?
A. George Miller.
Q. What did you tell Miller?
A. I told George I didn't like to do it, I was sorry,
but I had to lay him off; here's your slip, you can draw
unemployment, I'm sorry.
Q. Did you give him any reason for the layoff?
A. I said I couldn't afford to pay his wages any
more.
Q. Just to bounce back for a second, did you, in
talking to Edwards, Cogan and Stevens; did you tell
them how long the layoff might be?
A. No, sir.
Q. What did you tell them?
A. Indefinitely.
Q. How about Miller? What did you tell him?
A. I didn't give him any set call back time.
Q. What was Miller's reaction, or what did he say?
A. At the time, he said nothing to me. He went out
the door.
Q. Did you hear from him, though, shortly after?
A. I came back in the door. I believe George had
tears in his eyes. I hate to relate this, and he just walked
over to my desk and says, why, and I did not give him
any answer.
Q. What did you say?
A. I said, I'm sorry and he went back out the door.
Q. That was all of that conversation?
A. That's right.
Q. Okay. And then, you spoke with someone else,
individually?
A. Russell Browning was the last man.
Q. What did you tell him?
A. That I had to lay him off, I couldn't afford all
these men any longer, I was just about broke.
Q. Did you tell him how long he might be laid off?
A. No, sir.4
The testimony of Richard Eddington, director of orga-
nizing for the Union, and that of President Elmer Asman
established that Eddington, accompanied by Tank, read
the Union's request for recognition letter (G.C. Exh. I I) to
Asman around 4 o'clock on the afternoon of September 29.
Eddington said Asman elected to see his lawyer. In this
proceeding, Asman testified that this was the first time he
learned that his employees were engaged in union activity.
Based on the foregoing credited evidence under section
B, supra, I conclude and find that on September 21, a
majority of the Respondent's employees, including, Russell
Browning, Melvin Cogan, and George Miller, had selected
assisting Elmer Asman. In denying the other aspects of their testimonial
versions, she tried to attribute meaning to her concern about the "problem,"
and denied that she used the words "union" or "it." in reference thereto. I
was not persuaded by her demeanor that her explanation was truthful since
her close work relationship with Asman made Browning and Dutcher's
versions logical. Mary Barton's version of this conversation is further
discredited when it is considered in conjunction with all of the evidence of
record discussed, infra.
4 I credit the testimonial version of Melvin Cogan, as well as that of
Asman about the layoff, because they are not inconsistent or disputed, and I
was persuaded that the witnesses were testifying truthfully in this regard.
1102
EAST SIDE SANITATION SERVICE, INC.
the Union as their representative for the purpose of
collective bargaining; that by September 25, three other
employees had joined the Union, including Terry Ed-
wards; that employee Russell Browning, accompanied by
George Miller, spearheaded the solicitation for union
membership; that on Friday, September 26. the Respon-
dent (Asman) held a meeting with its employees during
which he interrogated employees about their union activi-
ties, and that said interrogation by such a high-ranking
company official (president of the Respondent) was coer-
cive and unlawful; that on September 26, Office Manager
Mary Barton (herein found, infra, to be a supervisor) did
create the impression of surveillance of the employees'
activities by informing them that the Respondent (Asman)
was aware of their union activities; and that on September
29, the Respondent (Asman), without any warning, did
layoff Russell Browning, George Miller, Terry Edwards,
Melvin Cogan, and Paul Stevens.
C. Was the Respondent Aware of the Union
Activities of Its Laid-Off Employees?
Employee John Dutcher further testified that on the
Monday following the layoff, September 29, Mary Barton
told him she knew about the Union because she learned
about it on Friday morning (September 26) from Bill
(Blankenship) at the Hi-Fly Gas Station, where the truck-
drivers purchased their gasoline, and that Asman knew
about it too, because she told him that morning (Friday,
September 26). Mary Barton denied having a conversation
with Dutcher in which she told him Asman knew about the
Union on Friday, September 26. Dutcher also testified that
about 3 weeks after the layoff on September 29, he had a
conversation with Asman which he described was as
follows:
A. Well, he asked us, he told me that he wanted us
to get rid of the copper and brass out of that area and I
asked him if Browning could come over and help, and
he said, well, he didn't want none of the guys that were
laid off to be on his property because of the trouble
they caused.5
Raymond Larcom testified that during the first or second
week in October, while he was in the Respondent's office,
Mary Barton told him, "We better stop the Union or we
wouldn't have a job." He said he told her they were not
going to stop. Mary Barton denied having this conversa-
tion with Larcom, however.6
Based on the foregoing credited evidence, I conclude and
find that on September 26, the Respondent, through Mary
Barton (herein found to be a supervisor, infra), did know
that the employees were engaged in union activity and that
she so informed the Respondent (Asman) of such fact
before the meeting on September 26; that in October the
Respondent (Asman) told employee John Dutcher he did
not want any of the laid-off employees (Browning, Miller,
I Although President Asman probably denied making this statement, I
nevertheless credit Dutcher's testimony in this regard because I was
persuaded by the straightforward. readily responsive, and relaxed manner in
which he testified that he was testifying truthfully Moreover, I believe his
version because the statement attributed to Asman is consistent with other
circumstantial evidence in the record of the Respondent's antiunion
conduct.
Edwards, Cogan, and Stevens) on his property because of
the trouble they had caused; that in October Supervisor
Mary Barton told employee Raymond Larcom the employ-
ees had better stop the Union or they would not have a job;
and that the latter statement by Barton and the former
statement by Asman constituted interference, restraint, and
coercion by the Respondent (through its president and
office manager) in violation of Section 8(a)(1) of the Act.
D. The Supervisory Status of Mary Barton
Mary Barton testified that her title is office manager for
the Respondent, and, in that capacity, she answers the
telephone, takes care of billing, insurance, and unemploy-
ment, uses the two-way radio (office to trucks) to dispatch
and instruct drivers on the trucks on working routes, and, if
Asman is not there, she assigns routes to employees. She
said she is paid a salary (while other employees are paid by
the hour) and she shares the same office with the Respon-
dent's president, Elmer Asman. Mary Barton further
testified that she does not hire, fire, promote, transfer, settle
grievances, suspend, lay off, recall, or discipline employees.
Her testimony in this regard is essentially corroborated by
President Asman. However, President Asman admitted
that Mary Barton knew every aspect of the business
operation and that she is a person in whom he confided.
With respect to assigning work and giving directions to
employees, Barton said she always had orders or approval
from Asman in doing so. However, when Asman was asked
how Barton knew what to do in a given situation, he said,
"by experience," and he admitted on cross-examination
that Barton gave instructions without consulting him.
Mary Barton admitted she had loaned company money
against payroll to employees, granted them permission to
leave work early, gave them work assignments, and
instructed them on the two-way radio. Nevertheless, she
said her actions were always pursuant to orders or approval
of Asman, even though employee John Dutcher said
Asman was not there when she gave him permission to
leave early; and Russell Browning said she wrote out the
loan check and gave it to him without him seeing her
consult with Asman. Both Mary Barton and President
Asman contend that Barton is not a supervisor and does
not exercise supervisory authority, even though several
employees testified that they consider her a supervisor.
In response to prior testimony by Raymond Larcom and
John Dutcher, Mary Barton denied she ever told anyone
Asman would shut down his business, and she admitted
that she had loaned money to Russell Browning and other
employees against their payroll, with prior permission
obtained from Asman to do so. She also denied she ever told
Larcom in October that they had better stop the Union or the)j
would not have a job. She further testified that on the day
the union representative came to the office, Russell
Browning told her he had signed a union card when he had
been drinking (four or five drinks) and that he went home
6 I credit Raymond Larcom's version of the October conversation held
with Mary Barton because I was persuaded by their demeanor that Larcom
was telling the truth and Barton was not; and because Larcom's version is
consistent with the tenor of all of the credited evidence of record.
1103
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and went to bed. On the next day he said he sent a letter to
the Union requesting removal of his name. 7
Based on the foregoing credited evidence, I conclude and
find that on and before September 26, and subsequent
thereto, Mary Barton exercised supervisory authority and
that she was, and is now, in fact, a supervisor within the
meaning of the Act; that in September Supervisor Barton
told employees Dutcher and Larcom that Asman would
shut down his business if the employees unionized; that, in
October, Supervisor Barton told employee Larcom they
(the employees) had better stop the Union or they (the
employees) would not have a job; and that both of Barton's
statements would, and did, have a restraining effect on the
exercise of employees' protected rights, in violation of
Section 8(a)(1) of the Act.
E. The Respondent Attributes the September 29
Layoff of Its Employees to Economic Consideration
Although the Union contends that the Respondent's
layoffs of Russell Browning, Terry Edwards, Melvin
Cogan, Paul Stevens, and George Miller were based on
their union activity, the Respondent contends that such
layoffs were based solely on economic considerations. In
support of its position the Respondent produced a volumi-
nous amount of testimonial and record evidence to show
that its business had been experiencing financial difficulty
for years. In this regard, the Respondent's certified public
accountant, Tom Beutler, credibly testified that owning to
large expenses and inadequate income, he had advised the
Respondent (Asman) a year before September to reduce
his expenses, more specifically, by reducing or laying off
personnel. Mr. Beutler further testified that he had dis-
cussed the business situation with President Asman on
several occasions during the past year, and particularly in
March, had suggested the Respondent cut expenses by
reducing the work force. However, on nearly each occa-
sion, Beutler said, President Asman was reluctant to reduce
his work force but instead, continued to plan expansion of
the business with the hope that such expansion would
extricate the business from its difficulty; that against his
(Beutler's) better advice, President Asman purchased two
new trucks in May 1975, at a cost of $74,000, with finance
charges included, $92,000. Although President Asman
momentarily conceded the necessity to layoff personnel,
Beutler said he never said, unequivocally, he would lay off.
Testimony by President Asman established that since
about 1972 the Respondent has been operating at a deficit
of $16,000, which deficit had continuously declined to
about $8,000 at the end of 1974, thus, cutting in half the
original deficit within a period of 4 years. In my judgment,
such reduction in the deficit represented business growth,
and it probably encouraged President Asman to refrain
from laying off any personnel. I note that the evidence
7 While I credit the testimony of Mary Barton and Asman with respect to
the specific duties of Barton, I nevertheless do not credit their denial of
Barton's supervisory authority. Not only was I persuaded by their demeanor
and their self-serving declarations that Barton was a supervisor, but their
version is contrary to credited testimony of the employees, and the logical
consistency of the circumstantial record evidence. I find it inconceivable
that Barton obtained prior approval from Asman on every occasion before
shows President Asman repeatedly said he did not want to
lay off personnel.
The Respondent also contends that it was encountering
difficulty as a result of being delinquent in Federal taxes
for the year 1974, but it did not know and did not establish
the extent of its tax liability; that business was declining as
a result of the loss of a few of its contractual accounts; and
that during the past year it encountered unusual expenses
for the repair of its trucks. Since the Respondent did not
know the amount of its tax liability, it would appear that it
did not necessarily consider or rely on any difficulty arising
from the tax delinquency in considering the September 29
layoff. The Respondent's contention that business was
declining as a result of the loss of contracts is substantiated
largely by the loss of the Village of Republic contract.
Although there may be some question about the reason for
the Respondent withdrawing its bid for the Republic
contract, the evidence indicates the Respondent's with-
drawal was a valid and prudent economic measure, and I
did not find any evidence indicating that it withdrew its bid
to intentionally create the impression that it was losing
business. However, it is noted that President Asman did
not withdraw its bid for the Republic contract until
September 30, 1975, 1 day after it laid off the five alleged
discriminatees herein.
The Respondent also contends that it experienced
financial difficulty as a result of unusual expenses for the
repair of its trucks during the past year. Although the
Respondent's records indicate considerable expenses for
the repair of its trucks during the current year, its records
essentially indicate that expenses for the current year were
not significantly different from such expenses during the
prior year. While the Respondent contends it was experi-
encing financial difficulty and declining business, it is
further noted that it hired one new employee at the end of
July and another at the end of August. The record does not
show that either employee was not permanently employed
or advised otherwise.
Finally, the record shows that as late as August 12, 1975,
an advertisement for year-round work at the Respondent's
enterprise appeared in a local newspaper. Although Asman
denied being responsible for this late publication, I do not
credit his testimony in this regard, because it is logical to
assume that a newspaper would not publish advertisements
without a request and compensation therefor. Neither the
testimonial nor the record evidence establishes any new,
specific, and significant financial information which the
Respondent (Asman) relied on in September, which led it
to decide at that time, in preference to all other times prior
thereto, to lay off the five employees.
The Respondent also claimed a shortage of work for its
employees as a reason for the layoffs. The record shows
that prior to the September layoff, the Respondent as-
signed two men to a truck and three men to the larger
trucks. After the layoff, the record shows that the Respon-
she exercised the discretionary authority which she admitted she exercised
(granting permission to leave early, etc.). Common experience discredits her
denial. Likewise, I do not credit Barton's denial that she told employees
Asman would shut down his business if employees unionized, and that she
told employees in October they had better stop the Union or they would not
have a job. Both statements are consistent with the Respondent's antiunion
conduct herein.
1104
EAST SIDE SANITATION SERVICE, INC.
dent assigned one man to a truck. According to the
undisputed testimony of Browning, this practice prevailed
until January 1976, when Asman said, after an OSHA
meeting, that he wanted two men at the rear of each truck
at all times when packing, as a safety measure. Browning
said before the layoff, Asman's son would drive a truck I
or 2 days a week, and at the time of his layoff, he did not
notice any decline in the Respondent's business, on his
route or otherwise. John Dutcher testified that, after the
layoff, Asman's son drove a truck just about every day, and
Dutcher's testimony was corroborated in this regard by
Raymond Larcom. All witnesses agreed that, whenever
they worked on the truck alone, that is, one man on a
truck, they received $10 extra. The record shows that this
practice was followed prior and subsequent to the layoff.
Raymond Larcom said before the layoffs he worked 40
to 48 hours a week, and after the layoffs, his work
increased to about 50 to 57 hours a week. He also stated
that before the layoff, around May 1975, Root drove only
occasionally (emergencies, such as sickness). Asman de-
nied that his son, Dennis Asman, drove trucks more
frequently after the layoff, but he acknowledged that his
son drives 4 or 5 days a week as he did before the layoff."
In explaining why he laid off the five employees on
September 29, Asman continued to testify as follows:
Q. Okay. Would you explain for me now, in your
own words, Mr. Asman, why these five employees were
laid off?
A. We had had much repair damage or repairs that
needed to be, our expenses were very great on that end.
We had much absenteeism, which is some of the reason
for having so many men, and I felt that the men,
themselves, had proven to me that they didn't want to
work five days a week by taking a day off. I decided I
wanted men to work steady. I needed the extra income.
I figured a five man layoff would give me between
$2,000 and $2,500 a month that I could use to offset
back bills. I had to lay 'em off.
In further describing the layoffs of the five employees,
Asman continued to testify as follows:
A. The first three, I called into my office at the
same time.
Q. All right.
A. Edwards, Cogan and Stevens, and then I called
George Miller in and Russell Browning.
Q. All right. Well, we have then three different
times that you laid people off, in terms of groups, so for
the first group with Edwards Cogan and Stevens, what
did you tell them the reason for the layoff as being?
A. I told 'em I was sorry but it had come to the
point where I must, financially or otherwise, lay them
off and
Q. What do you mean "otherwise"?
A. No need for their labor if I can't pay 'em. If I
can't pay 'em, I can't keep 'em.
s I credit the testimonial version oIf Dutcher and L.arcom over that ol
Asman not only because I was persuaded Dutcher and tLarcom were telling
the truth. but their versiln is consistent with logical results of a layoff
Q. And as to this first group, what was their
reaction to this statement?
A. They took their slips and went out the door.
Q. Then, who did you talk to next?
A. George Miller.
Q. What did you tell Miller?
A. I told George I didn't like to do it, I was sorry,
but I had to lay him off; here's your slip, you can draw
unemployment, I'm sorry.
Q. Did you give him any reason for the layoff?
A. I said I couldn't afford to pay his wages any
more.
Q. Just to bounce back for a second, did you, in
talking to Edwards, Cogan and Stevens; did you tell
them how long the layoff might be?
A. No, sir.
Q. What did you tell them?
A. Indefinitely.
Q. How about Miller? What did you tell him?
A. I didn't give him any set call back time.
Q. What was Miller's reaction, or what did he say?
A. At the time, he said nothing to me. He went out
the door.
Q. Did you hear from him, though, shortly after?
A. I came back in the door. I believe George had
tears in his eyes. I hate to relate this, and he just walked
over to my desk and says, why, and I did not give him
any answer.
Q. What did you say?
A. I said, I'm sorry and he went back out the door.
Q. That was all of that conversation?
A. That's right.
Q. Okay. And then, you spoke with someone else.
individually?
A. Russell Browning was the last man.
Q. What did you tell him?
A. That I had to lay him off, I couldn't afford all
these men any longer, I was just about broke.
Q. Did you tell him how long he might be laid off?
A. No, sir.
Russell Browning further testified that the Respondent
had a layoff in March 1975, and that, about I week before
the layoff, Asman held a meeting during which Asman told
them he was going to lay some of them off; that it would
not necessarily be according to seniority, and, in fact, it
was not according to seniority. Bill Snyder and Barry
Baughman were laid off. About 2 months later, Browning
said Asman told him he would not take Baughman back.
However, Baughman was called back while he (Browning)
was laid off. He said the day before he was recalled to work
in 1976 Asman told him he did not want him (Browning)
talking about the Union, the Labor Relations Board, or
anything of that nature on the job, presumably to anybody.
Asman did not deny the latter statement and a similar
statement is alleged to have been made by him to other
employees. I therefore credit Browning's testimony in this
regard. Asman did not deny the latter testimony by
(employees retained often absorb some of the work previously performed by
the employee laid off), and their version is consistent with the total evidence
of record.
1105
I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
Browning and I assume and accept Browning's testimony
as true.
With respect to his past policy of layoff and recall,
Asman testified that he laid off Bill Snyder in March 1975
because he was only able to work 6 hours due to personal
transportation problem. He said he laid off Barry Baugh-
man in March 1975 because he was called "sticky fingers"
(reputed to steal), but that he recalled both Snyder and
Baughman before the September 29 layoff. He said since
the September 29 layoff he employed the first employee on
June 29, 1976, because so many of his employees had been
subpenaed. He said the new employees were temporary.
He said the Respondent had been using one man on a
truck since July 1975; however, the credited evidence does
not support his testimony in this respect.
Asman denied that he ever told anyone "He would sell
out if the Union came in," "that the employees did not
need a union at East Side Sanitation," or that in early June
1976, "he did not want any talk about the NLRB or a
union out there." However, he said he did recall stating to
two employees in early June 1976, "that they would be
driving the truck that George would be assigned to on
Monday, and I think it would be better for everyone
concerned right at the present time if any of these
proceedings of the past 9 months, or up until this hearing
would not be brought up and hashed over with anyone
knowing exactly what's going on."
Asman identified the Respondent's Exhibit No. 3 as the
notice he gave to John Dutcher, after he refused to work on
either one of two trucks and decided to go home. This
occurred after John Dutcher returned to the Respondent's
employ on or about April 20. Other than this particular
reprimand and the one he issued to Russell Browning
(G.C. Exh. 8) warning Browning about having put diesel
fuel in the hydraulic tank of one of the trucks (according to
Browning, mistakenly), he had not issued a written warning
to any other employee and could not recall issuing a verbal
reprimand to any other employee. Asman admitted that
another employee did not receive such a warning for
tearing up a truck. Employee Gary Baker supported
Asman in this regard, in that he said, although he is an
employee of over 7 years with the Respondent, he had
never seen such a written warning.
On cross-examination Asman admitted he rehired
George Miller, who had quit, before he recalled Barry
Baughman; and that he hired Melvin Cogan on 7-28-75
for the first time, before recalling Barry Baughman, that he
hired Terry Edwards on 8-14-75 before recalling Barry
Baughman, and that he hired Paul Stevens on 8-25-75
instead of recalling Baughman. However, he recalled
Baughman in July, and Baughman refused to return
because he was working at the time. Asman said although
he had determined before the layoff that Root was too hard
on the equipment and made him a helper, after the layoff,
he promoted Root to a driver. He admitted that he
submitted a bid for the Village Republic contract before
September 22, and that Republic accepted his bid on
September 22; and that on September 30, he withdrew his
bid. He also admitted that he obtained a new contract for
Clay City on August 1, and that he did advertise for
employees in August 1975, and thereafter did hire two
employees in August 1975.
Asman further testified that as of the end of the day
September 29 (the day of the layoffs), the employees on
that day were: Lawrence Snyder, Russell Shiffler, Ellen
Snyder, Gary Baker, Charles Snyder, John Dutcher (Ellen
Snyder does not work on Mondays, but she was going to
work on Tuesday), Norman Morris, William Snyder was
due back from sick leave, Barry Baughman was not in,
Danny Root was there, Raymond Larcom and the five
employees who were laid off. Those names represent all the
drivers, helpers, and mechanics as of September 29, 1975.
Except for Office Manager Mary Banton, the record
shows that the Respondent's 15 or so employees were
either truckdrivers or helpers (trash collectors) on the
trucks. Hence, as alleged in the complaint and undisputed
at this proceeding, I find, that "All drivers, helpers and
mechanics, excluding office clerical employees, and profes-
sional employees, guards and supervisors as defined in the
Act," constitute a unit appropriate for collective bargain-
ing.
Analysis and Conclusions
It is well established by the evidence of record that, from
September 19 through October 11, 1975, the Respondent's
employees were engaged in union activity and that on
September 21 a majority (9) of the Respondent's 15
employees, had designated the Union as their collective-
bargaining representative. By September 23, 13 of the
Respondent's 15 employees had joined the Union, and the
organizing leadership of Russell Browning and George
Miller, as well as the organizing involvement of Melvin
Cogan and Terry Edwards, were established as a matter of
fact. On September 26, the Respondent called a meeting of
its employees and, in a subtle manner, proceeded to inquire
of its employees about what was going on (their union
activity).
The evidence of record further established that Mary
Barton is employed in the position of "office manager,"
that in that capacity she shares an office with the
Respondent's president, Elmer Asman, who said she is a
person in whom he confided, and that she knows every
aspect of the Respondent's business operation; that Barton
is paid a salary while other employees are paid by the hour;
and that in addition to her many clerical duties, she has
granted employees permission to leave work early and
loaned employees company money against their respective
payrolls; that, based on her experience, she gives directions
without consulting with Asman and gives the truckdrivers
work assignments and instructs them on the two-way radio
about business relating to their respective truck routes; and
that she substitutes for Supervisor Asman whenever he is
not in the office. There is no dispute that the employees
followed Barton's orders and directions. The exercise of
such authority by Mary Barton clearly makes her a
supervisor within the meaning of the Act. Wolverine
Worldwide, Inc., 196 NLRB 410 (1972); Westinghouse
Broadcasting Company, Inc., 195 NLRB 339 (1972) and
Birmingham Fabricating Company, 140 NLRB 640 (1963),
cited by counsel for General Counsel.
1106
EAST SIDE SANITATION SERVICE, INC.
Since Mary Barton exercises the above-enumerated
attributes of supervisory authority, she need not exercise
any and all of the other indicia of supervisory authority
described under Section 2(11) of the Act, in order to be
found a supervisor within the meaning of the Act. Elliott-
Williams Co., Inc., 143 NLRB 811 (1963). It is clear from
the evidence of record that the employees considered and
accordingly responded to the instructions of Mary Barton
as though she were a supervisor. See The Bama Company,
145 NLRB 1141 (1964). Accordingly, I find that Mary
Barton was and is now a supervisor within the meaning of
the Act.
As a supervisor, the evidence of record further shows
that in September Mary Barton told fellow employee John
Dutcher that President Asman would shut down his
business if the employees unionized the business; and that
in October, Supervisor Barton told employee Raymond
Larcom that they (employees) had better stop organizing a
union or they (employees) would not have a job. Since
Barton is a high-level supervisor, I find both of these
statements threatening in character, and having a restrain-
ing and coercive effect on the exercise of employees'
protected rights, in violation of Section 8(a)(1) of the Act.
Although the Respondent denies having had knowledge
of its employees' union activities prior to September 29, the
evidence of record abundantly shows that the Respondent
did have such knowledge. Firstly, the circumstantial
evidence shows that after 9 of the Respondent's employees
had joined the Union on September 21, and that this
number had risen to 12 employees by September 25, that
on Friday, September 26, just 6 days after the organizing
efforts of its employees commenced, the Respondent called
a meeting of its employees during which it interrogated
(made subtle inquiries to) its employees about their union
activities which had been in progress only 6 days prior
thereto; that when the Respondent received no response
from the employees, it called all of the employees into its
office on the following Monday, September 29, and
without any warning, laid off 5 employees, including the
chief organizers, Russell Browning and George Miller, as
well as Terry Edwards and Melvin Cogan, who also had
joined the Union, and Paul Stevens who subsequently
joined the Union.
Other direct evidence of the Respondent's knowledge of
its employees' union activity prior to September 29, shows
that immediately subsequent to the September 26 meeting
with the employees, Supervisor Barton told employees
John Dutcher and Russell Browning that she knew about
the Union, that she had learned about it on that morning
(September 26), and that she had also informed the
Respondent's president, Elmer Asman, about it on that
same morning (September 26). Also, in early October,
President Asman told employee John Dutcher that he did
not want any of the laid-off employees (all union members)
on his property because of the trouble they caused. The
nearest thing to "trouble" described in this record that the
laid-off employees might have caused was their unioniza-
tion of the Respondent's business. Hence, it is reasonably
inferred from Asman's statement that he was referring to
the organizational activity of the laid-off employees, and
certainly that reference is indicative of President Asman
having had knowledge of such activities. It is therefore
clear from the circumstantial and the direct evidence of
record that the Respondent had actual knowledge of the
union activities of its employees, particularly the activities
of Russell Browning, George Miller, Melvin Cogan, and
Terry Edwards. The Respondent's layoff action also infers
that the Respondent suspected union activity on the part of
Paul Stevens. Such knowledge on the part of the Respon-
dent is evident since its layoff included the chief organizers
of the Union, Russell Browning, George Miller, Terry
Edwards, and Melvin Cogan who were also members of the
Union on September 29. Since Mary Barton was a
supervisor within the meaning of the Act, her knowledge of
the union activity of the said employees is imputed to the
Respondent.
Did the Respondent Layoff Its Employees for
Economic Reasons, or for the Union Activity of
the Employees?
The Respondent contends that its September 29 layoff of
Russell Browning, George Miller, Melvin Cogan, Terry
Edwards, and Paul Stevens was based solely on economic
considerations. In this regard, the evidence of record does
show that the Respondent was experiencing considerable
economic difficulty in the operation of its business.
However, the record also shows that while the Respon-
dent's economic difficulties were increasing, they were
increasing at a decreasing rate; that the Respondent's
current expenses for truck repairs were not significantly
higher than such expenses in the prior years; that although
the Respondent had been advised by its accountant a year
earlier to take steps to reduce its expenses (including laying
off some of the work force), the Respondent was not
disposed to do so, but rather, proceeded to expand the
business with the hopes that such expansion would signifi-
cantly improve business returns. While there is no question
that an employer may layoff or discharge employees when
economic reasons justify such action, the primary question
often raised after such business considerations have been
justified is whether the employer's layoff or discharge of
the employees was in any way motivated by the union
activity of the employees.
In the instant case the evidence clearly establishes that
the Respondent deviated from a prior practice of giving
employees at least I week's notice of a layoff(March 1975),
when it called the five laid-off employees into his office on
September 29, and precipitously laid them off. When the
precipitous nature of the layoff of these employees without
any prior notice of such layoff is considered along with the
fact that such layoff occurred only 3 days subsequent to an
employees' meeting, during which the Respondent interro-
gated the employees about their union activity, and only 10
days subsequent to the commencement of union activity of
the employees, the half moon of the Respondent's motive
for laying off the employees becomes obvious.
Additionally, when the Respondent's herein found un-
lawful interrogation and threatening conduct is considered
along with the fact that Asman (Respondent) used his son
(Dennis Asman) and employee Root to absorb the truck-
driving jobs of two of the laid-off employees, and thereafter
hired two new truckdrivers in 1976, the Respondent's
1107
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
antiunion motive is sufficiently amplified to conclude that
the Respondent's September 29 layoff of Browning, Miller,
Cogan, Edwards, and Stevens was substantially motivated
by their union activity, and not by the economic consider-
ations of the Respondent's business. To the extent that I
find the Respondent's evidence of its economic difficulties
exaggerated, I also find such evidence was raised as a
pretext to conceal its real and discriminatory motive in
laying off said employees for their union activities.
The credited evidence of record established that during
the second week of October, the Respondent (Office
Manager Mary Barton) told employee Raymond Larcom
that the employees had better "stop the Union or they
would not have a job." I find the latter statement uttered
by the second highest ranking managerial official of the
Respondent business concern constituted a coercive and
threatening invasion of employees' protected rights, in
violation of Section 8(a)(l) of the Act.
The evidence further established that, during approxi-
mately the second week in November, employees John
Dutcher and Raymond Larcom asked the Respondent
(President Asman) could laid-off employee Browning and
the other four laid-off employees help them carry out a
work order. The Respondent (President Asman) said he
did not want the laid-off employees on his property
because of the trouble (union activity) they caused.
President Asman did not deny making the latter statement
and I find such statement by the highest-ranking manageri-
al official of the Respondent a threat to Dutcher, Larcom,
and Respondent's other employees and that the Respon-
dent took measures of reprisal against employees who
engaged in union activity, in violation of Section 8(a)(1) of
the Act.
In 1976, President Asman told Russell Browning he
could return to work but cautioned him not to "talk about
the Union, the National Labor Relations Board, or
anything of that nature during working hours." President
Asman did not deny he made the latter statement and I
credit Browning's testimony in this regard. Moreover, I
find that such statement by President Asman had a
coercive and restraining effect on the employees' exercise
of their protected Section 7 rights, in violation of Section
8(a)(l) of the Act.
The evidence also established that during approximately
the same week in 1976, President Asman told other
employees that he was recalling laid-off union activist,
George Miller, to work, but that "he didn't want, under no
circumstances, 'em [sic] talking about union, labor rela-
tions, or anything that's happened in the past 9 months"
(the period of the employees' organizing activity). In
response to this alleged statement President Asman tried to
explain his statement made during the conversation he held
with employees. However, I was not persuaded by Presi-
dent Asman's version, which is inconsistent with all of the
evidence of record. Consequently, I find such admonition
to the employees by President Asman, the highest-manage-
rial official of the Respondent, a coercive and restraining
threat to the exercise of employees' Section 7 protected
rights, in violation of Section 8(a)(1) of the Act.
Bargaining Order
Finally, the question is presented as to whether the
established unfair labor practices committed by the Re-
spondent during the organizing campaign of its employees
were of such consequential magnitude as to constitute an
interference with the election process, with the likelihood
of dissipating the Union's majority status and precluding
the holding of a fair election. In addressing this question, it
is first observed that the evidence of record clearly shows
that on September 21, 1975, a majority (9) of the Respon-
dent's 15 employees in the unit herein found appropriate,
had signed authorization cards designating the Union as
their collective-bargaining representative. The credited
evidence of record further shows that on September 26,
1975, the Respondent, with knowledge of its employees'
organizing activities, engaged in unfair labor practices
(coercively interrogated its employees and gave its employ-
ees the impression of surveillance of their organizing
activities); and that in addition to other threatening,
coercive, and unlawful conduct (including the layoff of the
two leading union activists, Browning and Miller, and three
other employees, two of whom were union members) on
September 29, followed this with other threatening, coer-
cive, and unlawful conduct by the Respondent in October
1976.
In view of the foregoing credited evidence, I conclude
and find that the Respondent's aforedescribed unlawful
conduct, commencing on September 26, 1975 (interroga-
tion and impression of surveillance), constituted the com-
mission of independent, substantial, and pervasive unfair
labor practices disruptive of election conditions or pro-
cesses, which prevented the holding of a free election and
caused the likelihood of the dissipation of the Union's
majority status, warranting the issuance of a collective-
bargaining order, effective as of September 26, 1975.
N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969), Steel-
Fab, Inc., 212 NLRB 363 (1974), and Beasley Energy, Inc.,
228 NLRB 93 (1977).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations de-
scribed in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce. They are unfair labor practices within the
meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of the
Act.
V. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices warranting a remedial order, I shall recom-
mend that it cease and desist therefrom and that it take
certain affirmative action to effectuate the policies of the
Act.
It having been found that on September 26, 1975, the
Respondent interfered with, restrained, and coerced its
1108
EAST SIDE SANITATION SERVICE, INC.
employees in the exercise of their Section 7 protected
rights, in violation of Section 8(a)(1) of the Act, by
coercively interrogating them, giving them the impression
of surveillance of their organizing activities, threatening
them with the shutdown of its business operation, advising
them to stop organizing a union or they would not have a
job, discriminatorily laying off five of its employees,
including the two union activists, and other participants in
the Union, for engaging in union activity, advising other
employees that the laid-off employees were not wanted on
its property because of the trouble they caused in orga-
nizing the Union, advising employees on recall not to
discuss the Union, labor relations, or any of the past union-
related activities, telling other employees not to discuss the
Union or union-related activities of the past 9 months, and
by failing and refusing to recognize and bargain with the
Union subsequent to its receipt of the Union's demand
letter on September 29; and that such unlawful conduct by
the Respondent prevents the carrying out of a free election
and causes the likelihood of dissipating the Union's
majority status. The recommended Order will provide that
the Respondent cease and desist from engaging in such
unlawful conduct and to bargain with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local 20, as of September 26, 1975.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that the
Respondent cease and desist from or in any other manner
interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4
1941).
CONCLUSIONS OF LAW
I. East Side Sanitation Service Inc., the Respondent, is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local 20, is and
has been at all times material herein, a labor organization
within the meaning of the Act.
3. By coercively interrogating its employees about their
union interests or activities, the Respondent violated
Section 8(a)( I) of the Act.
4. By giving the employees the impression that the
Respondent had their organizing activities under surveil-
lance, the Respondent violated Section 8(a)(1) of the Act.
5. By threatening employees with loss of their jobs if
they did not stop organizing a union, the Respondent
violated Section 8(a)(1) of the Act.
6. By threatening to shut down its business operation if
the employees organized the Union, the Respondent
violated Section 8(a)( I) of the Act.
7. By discriminatorily laying off employees Russell
Browning, George Miller, Marvin Cogan, Terry Edwards,
and Paul Stevens, the Respondent violated Section 8(aX3)
of the Act.
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall. as provided in Sec.
8. By recalling employee George Miller to work and
advising him not to discuss the Union, labor relations, or
anything that happened during the past several months
(union activity), the Respondent violated Section 8(a)(1) of
the Act.
9. By advising its other employees that it did not want
them to discuss the Union, labor relations, the National
Labor Relations Board, or any union-related subject of the
past, the Respondent violated Section 8(aX)) of the Act.
10. These unfair labor practices were so independent,
substantial, and pervasive that they are disruptive of the
election process, precluding a fair election and warranting
an order to bargain.
11. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 9
The Respondent, East Side Sanitation Service, Inc.,
Genoa, Ohio, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Interrogating its employees about their past and
current union interest or affiliation.
(b) Giving its employees the impression their union
activities are under surveillance by the Respondent.
(c) Threatening its employees with the loss of their jobs if
they do not stop organizing a union.
(d) Threatening its employees with the shutdown of its
business operation if the employees organized a union.
(e) Laying off the employees for engaging in union
activity.
(f) Advising its recalled employees not to engage in any
talk about the Union or union activities which occurred
over the past 9 months.
(g) Advising other employees not to discuss the Union,
the National Labor Relations Board, labor problems or
any of the union related activities which occurred in the
past 9 months.
(h) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Melvin Cogan and Paul Stevens reinstatement
to their former positions or, if such positions no longer
exist, to substantially equivalent positions without preju-
dice to their seniority or other rights previously enjoyed,
and make them whole for any loss of pay suffered by
reason of the discrimination against them with interest at
the rate of 7 percent in the manner described in F. W.
Woolworth Co., 90 NLRB 289 (1950), and Florida Steel
Corporation, 231 NLRB 651 (1977).
(b) Make Russell Browning, George Miller, Paul Stevens,
and Melvin Cogan whole for any loss of earnings suffered
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order. and all objections thereto shall be
deemed waived for all purposes.
1109
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by reason of the discrimination against them with interest
at the rate of 7 percent, in the manner described herein.
(c) Recognize and, upon request, bargain collectively
from September 26, 1975, with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America. Local 20 as the exclusive representative of
the employees herein found to constitute an appropriate
unit for collective bargaining, and, if an understanding is
reached, embody such agreement in a written and signed
contract.
(d) Post at the Respondent's plant at Genoa, Ohio,
copies of the attached notice marked "Appendix." o
Copies of said notice, on forms provided by the Regional
'o In the event this Order is enforced by a Judgment of the 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
Director for Region 8, after being duly signed by the
Respondent's representatives, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by the
Respondent for 60 consecutive days thereafter, in conspic-
uous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of receipt of this Order, what
steps the Respondent has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not found herein.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1110