Browning-Ferris Industries

60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Browning-Ferris Industries, Chemical Services, Inc. 620, 624 (1975); Overnite Transportation Company, and Excavating, Grading, Asphalt, Private 212 NLRB 515, 516 at fn. 6, 522 (1974); Congoleum Scavengers and Automobile Salesroom Garage Industries, Inc., 197 NLRB 534, 547 and fn. 64 Attendants Union, Local No. 731, International (1972). Respondent also argues that Andrus and Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Cases 13- Ciukaj were obliged to apply unconditionally for CA-19709, 13-CA-19884, and 13-RC-15408 reinstatement in order to trigger Respondent's backpay obligation. This argument is without merit October 23, 1981 because, as Administrative Law Judge found, these DECISION, ORDER, AND employees were unlawfully discharged. See Abili- CERTIFICATION OF RESULTS OF ties and Goodwill, Inc., 241 NLRB 27 (1979). ELECTION In adopting the Administrative Law Judge's finding that Respondent did not violate Section BY MEMBERS FANNING, JENKINS, AND 8(a)(l) of the Act by Supervisor Bevin's statement ZIMMERMAN to employee Pavlowski that, "if the union was On March 30, 1981, Administrative Law Judge here, there might not be any work," we note that Hubert E. Lott issued the attached Decision in this Pavlowski initiated the conversation with a joking proceeding. Thereafter, Respondent filed excep- statement about the Union. Thus, Bevin's statement tions and a supporting brief, the General Counsel was a spontaneous response rather than a calculat- filed exceptions and a supporting brief, and both ed attempt at intimidation, and was apparently not Respondent and the General Counsel filed answer- taken seriously by Pavlowski. Moreover, this state- ing briefs. ment was an isolated incident; it occurred about 2 Pursuant to the provisions of Section 3(b) of the months after the discharge of Andrus and Ciukaj National Labor Relations Act, as amended, the Na- and I month before the election. In this regard, tional Labor Relations Board has delegated its au- other than the two discharges, which were unrelat- thority in this proceeding to a three-member panel. ed to the employees' support for the Union herein, The Board has considered the record and the at- Respondent did not violate the Act during the tached Decision in light of the exceptions and period in question. briefs and has decided to affirm the rulings, find- ORDER ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as Pursuant to Section 10(c) of the National Labor modified herein.2 Relations Act, as amended, the National Labor Re- Respondent excepts to the Administrative Law lations Board adopts as its Order 3 the recommend- Judge's finding that employees Andrus and Ciukaj ed Order of the Administrative Law Judge, as engaged in protected concerted activity when they modified below, and hereby orders that the Re- refused to cross the picket line at International spondent, Browning-Ferris Industries, Chemical Harvester; Respondent argues that their refusal to Services, Inc., Lemont, Illinois, its officers, agents, cross the picket line was motivated by fear, not by successors, and assigns, shall take the action set their union sympathies. However, the Administra- forth in the said recommended Order, as so modi- tive Law Judge found, and we agree, that Andrus fled: and Ciukaj refused to cross the picket line out of 1. Substitute the following for paragraph l(b): sympathy for the striking employees. Moreover, "(b) In any like or related manner interfering such conduct is protected regardless of motivation, with, restraining, or coercing its employees in the See G & P Trucking Company, Inc., 216 NLRB exercise of the rights guaranteed them in Section 7 of the Act." 'The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established 2. Substitute the following for paragraph 2(a): policy not to overrule an administrative law judge's resolutions with re- "(a) Offer Robert Andrus and Florian Ciukaj im- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry mediate and full reinstatement to their former jobs Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. or, if those jobs no longer exist, to substantially 1951). We have carefully examined the record and find no basis for re- equivalent positions, without prejudice to their se- versing his findings. 2 The Administrative Law Judge inadvertently included a broad cease- niority or any other rights or privilegespreviously and-desist provision in his recommended Order. We will modify his rec- enojoyed, and make them whole, with interest, for ommended Order to conform it to the narrow language contained in his notice, which we find appropriate in the circumstances of this case. See earnings have Hickmott Foods. Inc., 242 NLRB 1357 (1979). Additionally, we will modify the affirmative provisions of the recommended Order to include 3 In accordance with his dissent in Olympic Medical Corporation, 250 the appropriate reinstatement language which was omitted, apparently NLRB 146 (1980), Member Jenkins would award interest on the backpay through inadvertence, by the Administrative Law Judge. due based on the formula set forth therein. 259 NLRB No. 9 BROWNING-FERRIS INDUSTRIES 61 result of their unlawful discharge in the manner set they may have suffered as a result of their un- forth in the section of this Decision entitled 'The lawful discharge. Remedy."' All our employees are free to engage in concert- 3. Substitute the attached notice for that of the ed activities for their mutual aid and protection Administrative Law Judge. within the meaning of Section 7 of the Act or to IT IS FURTHER ORDERED that the complaint alle- refrain from engaging in such activities. gations not specifically found herein be, and they hereby are, dismissed. BROWNING-FERRIS INDUSTRIES, CERTIFICATION OF RESULTS OF CHEMICAL SERVICES, INC. ELECTION DECISION It is hereby certified that a majority of the valid ballots have not been cast for Excavating, Grading, Asphalt, Private Scavengers and Automobile Sales- HUBERT E. Lorr, Administrative Law Judge: These room Garage Attendants Union, Local No. 731, In- consolidated cases were heard at Chicago, Illinois, on ternational Brotherhood of Teamsters, Chauffeurs, November 24 and 25, 1980.' The charge in Case 13-CA- Warehousemen and Helpers of America, and that 19709 which was filed on March 24, and the charge in said labor organization is not the exclusive repre- Case 13-CA-19884 filed on May 5 were filed by Exca- vating, Grading, Asphalt, Private Scavengers and Auto- sentative of all the employees, in the unit described mobile SalesrooGrading, Asphalt, Private S cavengers and Auto- mobile Salesroom, Garage Attendants Union, Local No. below within the meaning of Section 9(a) of the 731, International Brotherhood of Teamsters, Chauffeurs, National Labor Relations Act, as amended: Warehousemen and Helpers of America, herein the All full-time and part-time drivers, yard em- Union. A complaint issued on May 29, consolidating ployees, mechanics and service crew employ- Cases 13-CA-19709 and 13-CA-19884. A report on ob- ees employed at the Employer's facility pres jections order further consolidating cases issued July 9. In that report the Regional Director's order recommend- ently located at Main and Park Road, Lemont, ed that a hearing be held with respect to Objections 2, 5, Illinois, but excluding all office clerical em- and 6 because they raised issues which were the same as ployees, salespersons, supervisors, including those involved in the unfair labor practice cases filed by service supervisors and service engineers, the Union. The Regional Director further recommended guards and professional employees as defined overruling Objections 1, 3, 4, 7, and 8. Objection 7 al- in the Act. leges the discriminatory discharge of seven employees, including Robert Andrus and Florian Ciukaj. That por- APPENDIX tion of Objection 7 relating to the discharge of five em- ployees was overruled by the Regional Director because NOTICE To EMPLOYEES the charge in Case 13-CA-19926 alleging the discrimina- POSTED BY ORDER OF THE tory discharge of these five employees was dismissed by the Regional Director on July 1. The Regional Director NATIONAL LABOR RELATIONS BOARD further recommended overruling the balance of Objec- An Agency of the United States Government tion 7 seven with respect to the discriminatory discharge of Andrus and Ciukaj because he found that the dis- WE WILL NOT interfere with the right of charges occurred at the premises of another employer on employees to engage in protected concerted February 19, which was outside the critical preelection activities by discharging them for refusing to period. Limited exceptions were filed with the Board cross a lawful picket line established at the over the Regional Director's ruling with respect to that premises aof another employer, establishedatth portion of Objection 7 dealing with Andrus and Ciukaj. The Board in its Decision and Direction dated Septem- WE WILL NOT in any like or related manner ber 12, adopted the Regional Director's finding and rec- interfere with, restrain, or coerce our employ- ommendations; however, it remanded that portion of Ob- ees in the exercise of the rights guaranteed jection 7 dealing with the discharge of Andrus and them in Section 7 of the National Labor Rela- Ciukaj for hearing to determine the actual discharge date tions Act, as amended. of these two employees, since the discharge of these em- WE WILL offer Robert Andrus and Florian ployees could have occurred after the filing of the peti- tion and therefore affected the results of the election. euka bmmediate and ifuls reinstatementxsto toheir Therefore the Board directed that a hearing be held with former jobs or, if those jobs no longer exist, to respect to Objections 2, 5, 6, and that portion of Objec- substantially equivalent positions, without prej- tion 7 relating to the discharge of employees Andrus and udice to their seniority or any other rights or Ciukaj and that these objections be consolidated with the privileges previously enjoyed, and make them whole, with interest, for any loss of earnings , All dates herein refer to 1980 unless otherwise indicated. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issues in Cases 13-CA-19709 and 13-CA-19884. An to seniority: Florian Ciukaj, Robert Andrus, John amended consolidated complaint in Cases 13-CA-19709, Grande, Ernie Breuckman, Mike Ward, and Ron Pav- 13-CA-19884, and 13-RC-15408 issued on July 29. The lowski. current complaint alleges that Browning-Ferris Indus- On February 14, International Harvester, West Pull- tries, Chemical Services, Inc., herein called Respondent, man Plant, sent a purchase order to Browning-Ferris In- has violated and is violating Section 8(a)(l) of the Na- dustries, Lemont, Illinois, to do the following work: To tional Labor Relations Act, as amended, herein called provide labor and materials, to transport 22,000 gallons the Act. Respondent's answer to the complaint, duly of soluble oil waste and 4,500 gallons of hydrochloric filed, denies the commission of any unfair labor practices. acid waste to the C.I.D. Landfill, Calumet City, Illinois. The parties were afforded a full opportunity to be heard, to call, to examine and cross-examine witnesses, the work at International Harvester's West Pullman and to introduce relevant evidence. Since the close of Plant described in the above purchase order; Harold the hearing, briefs have been received from the General Plant desribed in the above purchase order; Harold Counsel, counsel for Respondent and counsel for the Dugan, salesman Bill Anthony, Randy Dann, and Tom Union. Doolan. Each of the above arrived in a separate truck at Upon the entire record and based upon my observa- International Harvester's West Pullman Plant at 9:30 tion of the witnesses and consideration of the briefs sub- a.m., and left at 12:15 p.m. Each of the above drove a mitted, I make the following: semitractor-trailer, to wit: 7170, Bill Anthony; 7233, Harold Dugan; 7257, Tom Doolan; and 7279, Randy FINDINGS OF FACT Dann. As of February 15, 1980, the above semitractor- trailers were normally assigned as follows; 7170 to Ernie i. JURISDICTION Breuckman, 7233 to Robert Andrus, 7257 to Jim Chan- The Company, a Nevada corporation, is engaged in dler, and 7279 to Florian Ciukaj. the business of chemical cleaning and liquid waste han- On February 22, International Harvester's West Pull- dling at its plant in Lemont, Illinois, where it annually man Plant sent Browning-Ferris Industries, Lemont, Illi- purchases and receives at its Lemont facility goods and nois, a purchase order for the following work. To pro- materials valued in excess of $50,000 directly from points vide labor and materials to transport 10,000 gallons of located outside the State of Illinois. The Company soluble oil waste to C.I.D. Landfill, Calumet City, Illi- admits, and I find, that it is an employer engaged in com- nois. This work was actually completed by Browning- merce within the meaning of Section 2(2), (6), and (7) of Ferris Industries, Lemont, Illinois, on February 21, by the Act, and that the Union is a labor organization drivers Ernie Breuckman and Ron Pavlowski who drove within the meaning of Section 2(5) of the Act. separate trucks. Both left Browning-Ferris Industries at 10 a.m., arrived at International Harvester's West Pull- II. UNFAIR LABOR PRACTICES man Plant at noon, and departed at approximately 2:30 A. Issues p.m. from International Harvester. On March 17, International Harvester's West Pullman The principal issues raised by the pleadings and the Plant, sent to Browning-Ferris Industries an invoice to various amendments made thereto at the hearing are whether Respondents violated Section 8(a)() of the Act provide labor and materials to transport 10,000 gallons of whether Respondent violated Section 8(a)(l) of the Act soluble oil waste to the C.I.D. Landfill, Calumet City, II- by various instances of interrogation, surveillance, wage linois This work was completed b Browning-Ferris In- increases, threats, and by replacing employees because y g they refused to cross another employer's picket line; and dustries on March 18, by drivers Mike Ward and Tim whether, as a result thereof, certain election objections Doogan. Both arrived at International Harvester, West should be sustained and a new election directed. Pullman Plant, at 11:30 a.m. and departed at I p.m., Doogan drove truck 7120. Ward drove truck 7233. B. Background Browning-Ferris Industries, Lemont, Illinois, performed no work for International Harvester from March 18, Respondent is engaged in various forms of cleang, until July 30 dredging, and hauling of chemical waste. It cleans the bottoms of waste ponds, utilizes a hydroblaster which International Harvester was billed on August 15 for bottoms of waste ponds, utilizes a hydroblaster which Browning-Ferris Industries work, described as quench oil performs high pressure water cleaning at large refineries Browning-Ferris Industries work, described as quench oil and industrial sites, and performs chemical cleaning using sludge and transportation disposal, performed on August a mixture of acid and water which is circulated through I and 5. customer equipment. Respondent's drivers haul away the International Harvester was billed on August 29 for spent chemicals and liquid waste. Respondent performs Browning-Ferris Industries work described as clean tank these various functions at customer locations or plants and dispose of waste performed on July 31 and August which are located throughout many States. Usually each 1, 4, and 5. This work is similar to work which has been job requires several laborers and a supervisor. performed by Browning-Ferris Industries for Internation- The parties entered into several stipulations which are al Harvester in the past. as follows: David Doogan first performed work as a driver for As of February 14, Browning-Ferris Industries at its Browning-Ferris Industries, Lemont, Illinois, on Febru- Lemont, Illinois, facility, employed the following six em- ary 25. Tim Doogan first performed work as a driver for ployees classified as truckdrivers and ranked according Browning-Ferris Industries, Lemont, Illinois, on Febru- BROWNING-FERRIS INDUSTRIES 63 ary 26. David Doogan and Tim Doogan were terminated would be needed to complete the order. As a result of as drivers sometime in late April. the previous refusals of employees to cross the picket Ricardo DeHoyos was hired as a driver by Browning- line at International Harvester on February 15, manage- Ferris Industries on June 17 and was terminated on June ment held a meeting on February 19 and interviewed 20. Fred Balas was hired as a driver by Browning-Ferris each driver for the purpose of determining who would Industries on June 12 and was terminated on October 8. cross the International Harvester picket line to complete Walter Miller was hired as a driver by Browning-Ferris the work order scheduled for February 21. At each of Industries on May 6 and is still employed as a driver. these meetings Service Manager Ken Bevin, Randy Browning-Ferris Industries has maintained an average Dann, and Harold Dugan were present. At that time Re- of six drivers (excluding James Chandler) who have ac- spondent's drivers were Ernie Breuckman, Ron Pa tually and regularly performed work from February 19 lowski Jim Chandler, Bob Andrus, Florian Cukaj and lowski, Jim Chandler, Bob Andrus, Florian Ciukaj, and through November 24. There is no written job description for the position of Mike Ward. At these meetings Ciukaj merely stated that driver supervisor. There is no written job description for he would not cross the picket line while Andrus told James Chandler from November 1, 1978, to the present. Dugan that he was in sympathy with the strikers' eco- There is a written job description for the following nomic action. When Andrus and Ciukaj told Dugan that hourly job classifications: Shop foremen, service supervi- they would not cross the picket line, they were both told sor, service technician, equipment technician, and me- that they would be replaced with someone who would chanic. do the work. Andrus and Ciukaj were the only drivers In addition to the above stipulations it should be noted who refused to cross the picket line and neither driver that Respondent's drivers spend approximately 90 per- worked for Respondent after February 19. On February cent of their time hauling liquid waste in semitractor- 20, International Harvester called Respondent and re- trailers from customer storage tanks to disposal sites. In- duced their order to only two trucks to be used on Feb- dividual drivers do not service regular customers or have ruary 21. Pavlowski and Breuckman completed the In- assigned routes. They learn where they are to be dis- ternational Harvester order on February 21. Dugan testi- patched each day by checking the drivers' schedule in fled that replacements for Ciukaj and Andrus were hired the dispatchers office the evening before. If the schedule either on February 21 or 22. The work schedule for Feb- is not completed, the driver will telephone for his assign- ruary 21 indicates that there were five jobs or trucks ment or the dispatcher will telephone the driver. The scheduled: Breuckman and Pavlowski were assigned to drivers also receive radio messages during the workday International Harvester, while Ward, Chandler, and Su- from the dispatcher and make runs which have not been pervisor Simpson were dispatched to other local custom- posted on the schedule. Drivers rarely switch assign- ers. Neither Andrus nor Ciukaj ever made an uncondi- ments and only then with the approval of the dispatcher. tional offer to return to work. On February 23 Ciukaj Drivers normally do not decline assignments once they came to the plant for his paycheck and asked Dugan if have been scheduled, however, Respondent often asks drivers whether they want a particular assignment before he had been fired. Dugan normed him that he had been permanently replaced. Dugan further stated that, Re- scheduling them for it and usually accommodates their wishes. spondent had already hired two drivers to replace At all times material herein there was a lawful eco- Andrus and Ciukaj but that if they made an uncondition- nomic strike at the International Harvester facility, West al offer to return to work Respondent would take them Pullman Works, Chicago, Illinois. back when an opening occurred. The following week Dugan met with the other drivers to explain what had C. Replacement of Robert Andrus and Florian Ciukaj happen to Andrus and Ciukaj. He told the drivers that they had been permanently replaced and further stated In February International Harvester placed an order with Respondent for the removal of liquid waste which that, while he did respect their feelings for not crossing with Respondent for the removal of liquid waste which would require four trucks on February 15. Four of the the picket line, Respondent could not operate a business would require four trucks on February 15. Four of the six drivers working for Respondent, including Andrus by not servicing their customers and they had no choice six drivers working for Respondent, including Andrus and Ciukaj, refused to cross the picket line at Interna- but to permanently replace the people who would not tional Harvester. Andrus told Respondent that he did not service the customers and do the work for Respondent. think that it would be a very good idea to cross the There was evidence that the drivers are not scheduled to picket line, while Ciukaj told Respondent that he did not work every day and when that occurs they simply stay want to get his head busted and he did not want to hurt home and call in the next day and check with the dis- the strike effort. District Manager Harold Dugan, sales- patcher to see if they are scheduled to work the follow- man Bill Anthony, Service Supervisor Tom Doolan, and ing day. Andrus and Ciukaj were not scheduled to work Shop Foremen Randy Dann, all management personnel, on February 15, 16, and 18, however, Ciukaj worked on later drove the required trucks across the picket line and February 19. Ciukaj began his employment with Re- completed the February 15 job for the customer. spondent in July 1974 while Andrus started work with On February 19, Respondent received another work Respondent in November of that same year. Dugan testi- request to remove liquid waste from the International fled that neither Andrus nor Ciukaj ever made an uncon- Harvester Plant on February 21. This job required all six ditional offer to return to work. He further stated that of Respondent's trucks. Since only six drivers are em- there were no other jobs available for these two drivers ployed to drive liquid waste hauling jobs, all drivers on February 21. 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. James Chandler Chandler was the sole person in charge of one shift. Chandler testified that as a truck operator he completed 1. Supervisory status many service receipt and log forms at the end of each Chandler has been employed at Respondent's Lemont day. 4 These service receipt and log forms basically de- facility since 1972. Chandler testified that prior to No- scribe which equipment was used on a particular job and vember 1978 he was a trucking coordinator dispatcher. the dates and the hours of use. They also show the In that capacity he received a salary and his job duties number of employees and supervisors that worked on the consisted of dispatching trucks, hiring and firing drivers, job and the dates and hours that they worked. The form and supervising the entire trucking operation. He wore a also indicates any chemicals used and any other special uniform that consisted of blue trousers and a white shirt equipment that was needed to complete the job. Re- with the words, "Browning-Ferris, Jim, Supervisor" spondent prepares the customers bill based upon the in- printed on it. 2 As a truck coordinator Chandler testified formation contained in these service receipt and log that he drove trucks frequently and that prior to Novem- forms. The customers receive a copy of this form from ber 1978 he met with Dugan and explained that he was the driver or a supervisor and the balance of the copies not making enough money as a coordinator and wished are returned to Respondent for billing purposes. Chan- to return to driving. Dugan said that he could be a lead dler stated that the drivers' time is not shown on these driver. He was given a new truck and a 45-cent-an-hour forms because that time is included with the cost of his wage increase which was that much more than what the truck. However, Chandler indicated that if he did work most senior drivers were earning. Since November 1978 on a job other than driving work his labor would be in- Chandler stated that he has continued to wear the white dicated. On several such service receipt and log forms shirt with the word supervisor on it, but that over a which Chandler completed and signed dating from period of time the supervisor label wore off some of the August to November 1979, Chandler listed one supervi- shirts and was not restored until February or March. As sor and either one or two service employees or equip- a lead driver his job duties consisted of driving a vacuum ment technicians. Chandler could not recall who the su- truck and operating a vacuum pump which pumps liquid pervisor was on any of these jobs if it was not himself. waste from the customers tank into his truck. He also On several other forms which Chandler had completed stated that he fills out certain EPA, metropolitan sanitary during the period of January and February (some 18 dif- district forms, and trucking manifests. He spends ap- ferent jobs) Chandler listed himself as a service techni- proximately 95 percent of his time driving the truck and cian.5 On another service receipt and log form dated 5 percent of his time overseeing service crews that are March 18, signed by Chandler, he listed himself as a su- assigned to him. After the truck is loaded with waste pervisor for that entire day. On all of these forms Chan- liquid he then drives the contents to a disposal site and dler lists at least one and in most cases two employees disposes of the waste. Chandler further testified that in working with him on the job for that particular day. his present job as lead driver he has no authority to hire, Harold Dugan testified that James Chandler was hired fire, schedule employees work, discipline, or transfer em- as a trucking coordinator on June 5, 1977. His job duties ployees. Sometime in 1979 Chandler recommended to as trucking coordinator included scheduling trucks for higher management that Ernie Breuckman not be al- work, hiring and firing truckdrivers, and assigning driv- lowed to drive a tractor-trailer because he was not quali- ers to haul liquid waste loads according to orders from fled. Thereafter Breuckman drove nothing but a straight various customers. Dugan testified that in October 1978 truck. Chandler, 2 months later, after driving with Chandler requested that he be allowed to assume the Breuckman, recommended that Breuckman be allowed to duties of a truckdriver in addition to his supervisory drive a tractor-trailer and thereafter Breuckman did functions. Chandler wanted to change his job status be- drive the larger truck.3 In January Chandler stated that cause he could make more money as a driver and hourly he recommended a raise for Leo Durkin which Durkin employee than he could remaining as a coordinator. received. As a lead driver Chandler testified that the cus- Chandler stated to Dugan that since there were times tomers at the jobsite looks to him to see that the job gets when he had to drive a truck as a coordinator, he done and it is part of his responsibility to set up the job wanted to be paid for it. According to Dugan, they correctly and show the service employees how to do agreed that Chandler would be classified as a driver-su- their job. In the past he has talked to management about pervisor, continuing many of his supervisory functions as employees not performing their job safely in accordance well as performing regular driver duties. Chandler's em- with his direction and has reported employees to Ken ployee history record (Resp. Exh. 14) notes "11-1-78, Bevin who have not performed their jobs correctly and per Jim Chandler's request, duties were changed from that Bevin's responded that Chandler was the boss on coordinator to driver supervisor (HD)." An employee the job. Chandler admitted supervising a Monsanto job transaction report (Resp. Exh. 18) dated November 1, in September or October with another supervisor Tom 1978, reflects the change in status: "Explanation of other- Simpson, in Iowa. The job lasted for 8 or 9 days and ' Other drivers also complete these forms and signed their names. ' Other employees wore uniforms consisting of blue trousers and blue S On Resp. Exh. 15, which is a job description form, a service techni- shirts. All supervisors wore white shirts and blue trousers. cian classification lists certain duties: Hourly employee skilled in all prod- ' Apparently other experienced drivers such as Andrus and Ciukaj also uct lines normally assigned to. Has service and support responsibility as made similar recommendations to higher management although the assigned by service manager and/or branch manager. Duties include job record is not clear as to whether or not these recommendations were execution, supervision and discipline of crews, and equipment care. Uni- ever followed. form is blue pants, white shirt, and white hat. BROWNING-FERRIS INDUSTRIES 65 change from coordinator to driver supervisor per em- 2. Threats and interrogation ployees request." Dugan further testified that Chandler The facts surrounding these allegations are basically assumed the duties of driver-supervisor on November 1, undisputed. On April 22 1978. Since becoming a driver-supervisor on that date, supervisors was called by Dugan to discuss Respondent's Chandler supervised employees approximately 25 percent supervisors was called by Dugan to discuss Respondent's of his worktime and drove trucks for the remaining ap- strategy regarding the Union's organization drive. Chan- proximate 75 percent of the trucksime. After becoming ap- dler was on a route assignment at the time but was called proximate 75 percent of the time. After becoming a on the radio by Dann and told to attend the meeting. No driver-supervisor, Chandler continued his duties as a on the radio by Dann and told to attend the meeting. No trucking coordinator through February 1979. After Feb- company personnel were present except supervisors. At ruary 1979, his supervisory duties consisted of directing the end of the meeting Dugan handed out a question- service crew employees at customer's jobsites. naire which contained a list of employees names and a As a supervisor of service crew employees Chandler yes, no, and maybe after each name. Each supervisor As a supervisor of service crew employees Chandler was instructed to mark next to the employee name how acted as a liaison between the customers and Respondent the supervisor felt about each employees' support or and had the authority to discipline employees for poor sympathy for the Union Apach eml oeesC support or performance at the jobsite. As Respondent's representa- sympathe questionnaire Union. Apparently Chandler complet- tive at the customers' place of business, he was the cus- te questionnaire but refused to sign it on the signa- tomers direct contact with Respondent. Chandler direct- Dugae line which stated tsupervisor" Chandler told ed service crew employees and gave them work assign- Dugan that he refused to sign the questionnaire because ments. He would assign jobs to employees according to he was not a supervisor. On April 23 James Chandler re- their abilities, would instruct them in the proper use of ceived a letter from Harold Dugan (G.C. Exh. 5) which company equipment, and would observe employees using the equipment. As a supervisor on service crew jobs, Dear Jim Chandler also was responsible for completing the compa- ny service receipt logs which listed the equipment, labor, Lemont district policy states that as a supervisor and chemicals used on each job. The service receipt logs you have specific responsibilities to fulfill, both at completed by Chandler and other employees list Chan- the branch managers request and in the capacity of dler as a supervisor or service technician on the service providing support functions. One of the supportive crew jobs. Service technician is another designation used functions is filling out employee questionnaire forms for service crew supervisor. as requested. Dugan testified further that like every company serv- Such a request was made on April 22, 1980; and ice supervisor, Chandler had the authority to terminate you failed to fully comply with it. Nor did you employees. In the summer of 1979, after leaving his co- fully cooperate as requested. ordinator job, Chandler evaluated Ernie Breuckman's In addition to your failure to cooperate on April driving skills and recommended that Breuckman not be 22, 1980, you have refused to wear your supervisors allowed to drive tractor-trailer rigs until he had more ex- shirt insignia, even though Lemont district policy perience handling smaller trucks. Management followed mandates that this be done. this recommendation based on Chandler's evaluation. As a supervisor, you owe your loyalty to this Several months later Chandler made a second evaluation company and can not, by law, actively support or of Breuckman and recommended that he be allowed to campaign on behalf of any labor organization. If drive the tractor-trailer. Respondent followed this rec- you continue to refuse to cooperate, or otherwise ommendation as they had done on the previous occasion refuse to, or fail to fulfill your duties and responsi- and Breuckman began driving trailer rigs. Chandler also bilities as a supervisor, you will be terminated. has effectively recommended that an employee be given Lemont district policy is specific, and leaves no a raise. In January 1980, Chandler discussed Leo Dur- doubt whatever concerning supervisory responsibil- kin's work abilities with Ken Bevin and suggested that ities and duties. Durkin be given a raise. Bevin acted on Chandler's rec- I hope I can count on your full support, coopera- ommendation and a payroll change was made giving tion and assistance in the future. If, you for any Durkin the raise. Dugan testified that Chandler is paid reason, are uncertain as what your responsibilities on an hourly basis as are all service crew supervisors. Although there were times when all drivers and supervi- sors were receiving the same rate of pay, those pay rates you. were instituted in order to change the payroll raises to Harold Dugan anniversary date system. In January 1980 Dugan in- formed the drivers and supervisors that they would get a 3. Wage increase raise that would be effective in April. On April 1, all drivers and supervisors received a raise from $7.50 per This allegation concerns itself with the 25-cent-per- hour to $8 per hour. To reestablish some differentiation hour raise received by Chandler and all supervisors ef- between drivers and supervisors, all supervisors (includ- fective April 21. Dugan testified that this raise was given ing Chandler) were given a 25-cent-per-hour raise to be in order to establish a differential between supervisors effective on April 21. 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and drivers who up until that time were earning the Radcliff Dann, shop foremen for 3 years, testified that same hourly rate.6 he recalls a conversation with Pavlowski in April where- in he asked Pavlowski what the outcome of the vote E. Ron Pavlowski' would be and Pavlowski replied 14 to 7. Dann testified Ron Pavlowski has been a truckdriver for Respondent that that was the end of the conversation and that noth- since January 21. He testified that during the week of ing else was said and that he does not recall mentioning April 13 to 20 or the week of April 20 to 27 he was Chandlers name. working at Clark Oil. He stated that on one occasion he Kenneth Bevin, service manager, testified that after was putting some hydrochloric acid into the circulating the election was over at approximately 7 p.m., on May unit and just jokingly said to Ken Bevin, "If we were 20, he went to Johnny's 83 Bar and Grill. Several super- union I wouldn't even have to load this acid." Ken visors were sitting at a table drinking when Pavlowski Bevin's comment was, "If you were union you wouldn't came in at approximately 9 p.m., and sat down and or- have any work." Pavlowski further testified that during dered a beer. Pavlowski asked Bevin what the outcome that same week he was putting liquid waste in Respond- of the election was and Bevin told him 14 to 3 at which ent's holding pond and Randy Dann, who was still at the time Pavlowski did some figuring and stated something yard, came back to him and said, "Is Jim Chandler talk- to the effect that it should be 14 to 7, whereupon, Bevin ing about anything regarding the Union? Pavlowski an- said that some votes were contested and not counted. swered, "No." Then Dann said, "Well, how do you Pavlowski said that that made sense then. Bevin stated think the vote is going to go?" Pavlowski responded, that they did not discuss anything else and that Chan- "Roughly, I think it's going to be about 18 to 7." Dann dler's name was not mentioned. Bevin further testified said, "For?" And Pavlowski said, "No, I think against." that nothing was said about how any particular employee Pavlowski further testified that on May 20 after t voted or that he knew how certain employees voted. election was over and the ballots had been counted (ap- Bevin further stated that he did not say that those em- proximately 9 p.m.), he went to Johnny's 83 Bar and ployees who voted for the Union would be fired or words to that effect. He also testified that there was no Grill where Respondent's supervisors were having a vic- tory celebration. Pavlowski stated that he walked into conversation regarding Kirkpatrick. Bevin further testi- Johnny's and noticed that all the supervisors were sitting fied that he remembers a conversation with Pavlowski at one table. Everybody was drinking, laughing, and taking place in April at the Clark Oil Refinery in Blue joking. He sat down with Ken Bevin, John Grande, and Island wherein Pavlowski jokingly said, while he was Kevin Wales. Pavlowski started the conversation by stat- loading acid into a truck, "If the union was here or if we had a union I wouldn't have to load the truck." Bevin ing that he could not believe the vote came out 14 to 3. Bevin said challenges would have made it 14 to 7 or 8. responded in a joking manner, "If the union was here Bevin further stated that the four votes which had been there might not be any work." challenged were Bob Andrus, Ciukaj, Jim Chandler, and F. Analysis and Conclusions he believed George Bouer and, according to Pavlowski, he also said that the two Doogans had called up to ask if i. Interrogation by Ken Bevin on February 19 they could vote and were told not to waste their time. Bevin then stated to Pavlowski, "We know that Mike There is no evidence in the record to support this alle- Burns and Wayne Kirkpatrick voted yes and Randy gation. Therefore, I hereby dismiss it. Dann thinks that you voted for the Union. You are a very hard individual to figure out. We probably will 2. Replacement of Andrus and Ciukaj never know how you voted." Pavlowski said, "Well The Board recognizes two competing rights in cases you're right." Bevin then said, "Jim Chandler's ass is where employees are replaced for refusing to cross the grass and Wayne Kirkpatrick doesn't know it yet but he picket line of another employer. The right of employees is gone." to respect a picket line established at the premises of an- other employer and the right of employers to run their At the conclusion of the General Counsel's case in chief, the General business despite the employees' protected right. Thus, Counsel amended the complaint to include the 25-cent-per-hour wage in- crease to Chandler as a violation of Sec. 8(aXl) of the Act; i.e., the grant- the Board recognizes the right of an employer to replace ing of the benefit. I denied the motion because this allegation was never employees who refuse to cross a picket line and are contained in any charge, complaint, or objection that issued prior to thereby engaging in protected conduct. However, the hearing. Further, it appeared clear to me at the time that this information e was known or should have been known by the General Counsel several months prior to hearing because it involved a matter which was well acted "only to preserve the efficient operation of his known to one of the General Counsel's chief witnesses. However, at this business." Overnight Transportation Company, 209 NLRB time I am granting the motion to amend the complaint and will deal with 691, 692 (1974). Similarly, the employer is required to the wage increase on its merits. ' All the testimony of Ron Pavlowski was given in support of amend- show, "an overriding employer interest" Overnight Trans- ments to the complaint which were made by the General Counsel at the portation Company, 154 NLRB 1271, 1274 (1965). The hearing. The General Counsel stated that the information provided by Board further stated in this decision, "clearly, what is re- Pavlowski first came to her attention on November 18. The same is true with respect to the allegations involving Randy Dann. I granted the motion but stated that coming forth with evidence at this late date may only when the employer's business need to replace the effect the credibility of her witness. employees is such as clearly to outweigh the employees' BROWNING-FERRIS INDUSTRIES 67 right to engage in protected activity that an invasion of '[YJes, we told the drivers that Bobby and Pie (Ciukaj) the statutory right is justified." had been permanently replaced. We did respect their Applying these principles to the present case, I can not feelings for not going across the line but we could not find a compelling business reason for Respondent's operate a business by not servicing our customers and action. Respondent offered virtually no evidence that re- we had no choice but to permanently replace the people placements were necessary to preserve the efficient oper- who wouldn't service the customers and do the work for ation of the business. To the contrary, the evidence indi- us." Dugan's explanation to the other drivers uses the cated that Respondent's drivers are not assigned regular word "customers" twice and never refers to Internation- routes and while it is not customary for drivers to refuse al Harvester or any legitimate business necessity for re- assignments after they are scheduled, Respondent in the placing Andrus and Ciukaj. What this statement means past made every effort to accommodate their wishes to me and, I am sure, to the drivers is that Respondent prior to preparing the schedule. Moreover, I find based did not want to employ any drivers who would honor a on the record that no special skills are required of these picket line because the mere act of honoring a picket line drivers. Keeping this evidence in mind, it is further interfered with its business operations affecting all of its found that both Andrus and Ciukaj were informed by customers. Dugan on February 19 that they were being replaced be- Dugan's statement also refutes Respondent's argument cause Respondent had need of all six drivers on Febru- that Andrus and Ciukaj refused to cross the picket line ary 21. However, on February 20, which was prior to because of their fear of physical harm. Dugan and other the time the schedule for February 21 was actually pre- supervisors went to the International Harvester plant on pared, and prior to the hiring of any replacements; Re- February 15 and knew there was no danger involved in spondent was informed by International Harvester that a crossing the picket line. Therefore, the clear import of mistake had been made and it really only needed two Dugan's words is that he respected their decision to sup- trucks and two drivers.& With this information Respond- port the strikers at International Harvester. Based upon ent proceeded to hire replacements even though they this statement and the testimony of Andrus and Ciukaj, I were not needed. Further, Respondent could not demon- find that both drivers refused to cross the picket line out strate that replacements were ever needed. The evidence of sympathy for the strikers. is clear that International Harvester was the only cus- Accordingly, I find that Respondent discharged tomer whose employees were engaged in a strike. The Andrus and Ciukaj on February 19 in violation of Sec- evidence is also clear that from February 21 to the end tion 8(a)(1) of the Act for their refusal to cross a picket of the strike at International Harvester, Respondent re- line at the plant of another company. ceived one order for two drivers (March 18) from this customer. Keeping in mind that from February 20 to the 3. James Chandler end of the International Harvester strike, Respondent had four or five drivers who were willing to cross the The only issue to be resolved herein is whether or not International Harvester picket line; there appears to be Chandler was a supervisor on April 22. If he was not, no justification for the replacement of these two drivers. the allegations must be sustained since the facts support- On the critical day of February 21, Respondent's sched- ing them are admitted. ule indicates that Andrus and Ciukaj could have been as- Respondent's documentary evidence supports Dugan's signed to three other jobs or merely sent home for the version of the meeting held between him and Chandler day if no work was available. There would have been sometime prior to November 1, 1978. Therefore, I find nothing unusual in either course of action and Respond- that Chandler agreed to become a driver-supervisor and ent offered no evidence to show that by so doing, it further agreed to supervise service employees at the cus- would have adversely affected its business operation. In- tomers jobsite. He was hourly paid and earned the same stead, Respondent chose to replace its two most senior hourly wage as other service crew supervisors. He wore drivers, which it clearly did not have to do. Respondent the same uniform with the designation "supervisor" on took the position that Ciukaj and Andrus were advised the shirt as did other supervisory personnel. Thus, hold- that their rights as employees were retained, but they ing himself out to the other employees as a supervisor. made no unconditional offer to return to work. There- The service receipt and log forms completed by Chan- fore Respondent was under no obligation to reinstate dler are persuasive evidence that Chandler was a super- them. Under the circumstances of this case, I reject this visor during the critical period in this case. On these argument and note instead that when driver job openings forms covering a period from March to October, Chan- occurred, Respondent never notified either driver of this dler listed himself by name as a supervisor and charged fact. This suggests that Respondent did not want to his time as a supervisor in addition to the time of one or employ either driver so long as they intended to respect two equipment technicians. On other forms completed picket lines. Dugan explained Respondent's position by Chandler covering the period from August to No- when he told the other drivers the following week, vember 1979 and January through February (1980), Chandler charged customers for a supervisor's time as ' Respondent's witnesses could not testify as to actually when the well as the time for one or two service employees. Thus, schedule for February 21 was prepared. However, other record evidence the inference to be drawn is that Chandler was the only indicates that the schedule for the next day is prepared the night before. I person at these customer jobsites to direct the work of find that Respondent hired Tim Doogan and David Doogan to replace Andrus and Ciukaj on February 21 and 22, and neither replacement Respondent's service employees who were also listed on drove for Respondent until February 25 and 26. the forms. Since there was no evidence to the contrary, a 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD finding that Chandler was not a supervisor during 1979 approved on April 1. Thereafter a secret-ballot election and 1980 would mean that Respondent's service employ- was held on May 20. The polls closed at 7 p.m. on May ee's worked away from Respondent's facility at a cus- 20 and the election results were as follows: Approximate tomer site without any supervision. Therefore, I find that number of eligible voters 19, void ballots 0, for petitioner Chandler was the only person in many instances that was 3, against petitioner 14, challenged ballots 4. The election available at customer jobsites to direct the work of serv- was conducted in the following unit of employees: ice crew employees. I further find that Chandler as- All full-time and regular part-time drivers, yard em- signed work to service crew employees and directed ployees, mechanics and service crew employees em- their work. He effectively recommended wage increases ployed at the employer's facility presently located and job promotions. I also find that he was in many at Main and Park Road, Lemont, Illinois, but ex- cases Respondent's representative at the customer's place cluding all office clerical employees, sales persons, of business and in that capacity was responsible for satis- supervisors, including service supervisors and serv- factory completion of the work. ice engineers, guards and professional employees as Accordingly, I find that James Chandler on the critical defined in the Act. date at issue herein was a supervisor within the meaning of Section 2(11) of the Act. Based upon this finding, I Thereafter, timely objections to the election were filed hereby dismiss allegations V(b) and (c) of the complaint by the Union. All the objections were overruled by the and the amended allegation with respect to the granting Regional Director with Board approval with the excep- of the wage increase to Chandler on or about April 21. tion of the following: Objection 2 that the Employer interrogated its em- ployees concerning their Union and/or protected, con- After observing the witnesses demeanor with the re- certed activities. spect to all the testimony given in support of these alle- Objection 5 that the Employer improperly threatened gations and the denials by Respondent's witnesses, I employees. credit Respondent's witnesses over the uncorroborated Objection 6 that the Employer engaged in surveillance testimony of Pavlowski. According to Pavlowski the al- of the employees union activities. leged statements were made to him in April and May, That portion of Objection 7 relating to the discharge however, he did not come forward or make any attempt of Andrus and Ciukaj. to offer this evidence for over 6 months. In addition to The allegations contained in Objections 2, 5, and 6 the reasons already cited, it is noteworthy that Pav- were the same as the allegations in the unfair labor prac- lowski could recall very little of the conversation in tice hearing which I considered and dismissed. The issue Johnny's 83 Bar on May 20 except the bare allegations. relating to the discharge of Andrus and Ciukaj was re- Dann testified that sometime in April he asked Pav- solved by my finding that they were terminated on Feb- lowski what he thought the outcome of the election ruary 19, which was prior to the filing of the petition. would be. In the context of this case I do not find this to Accordingly, I overrule all of the Union's objections in be interrogation and a violation of Section 8(a)(l). their entirety and recommend that the Board certify the Bevin admits stating to Pavlowski that, "If the Union result of the election. was here there might not be any work." I view this statement as an expression of Bevin's opinion but not a CONCLUSIONS OF LAW threat. In support of my finding, I note that Pavlowski 1. Respondent is an employer engaged in commerce was asked whether or not Bevin ever threatened to dis- within the meaning of Section 2(6) and (7) of the Act. charge him and Pavlowski answered no. 2. The Union is a labor organization within the mean- Accordingly, based upon the above findings, I con- ing of Section 2(5) of the Act. elude that the General Counsel has not carried the 3. By discharging Robert Andrus and Florian Ciukaj burden of proof by a preponderance of the evidence on February 19, for engaging in protected concerted ac- with respect to these allegations and hereby dismiss all tivities, the Respondent has violated Section 8(a)(1) of the amended allegations; namely, paragraphs V(d), (e), the Act. (f), (g), and the amended allegation involving Randy 4. The aforesaid unfair labor practice is an unfair labor Dann. practice affecting commerce within the meaning of Sec- G. The Objections9 tion 2(6) and (7) of the Act. 5. Except as found above, Respondent has not engaged The petition was filed on February 25. A Stipulation in other unfair labor practices as alleged. for Certification Upon Consent Election Agreement was 6. Following the filing of the representation petition on February 25, Respondent has not engaged in conduct ' On January 14, 1981, the Union Petitioner filed what amounts to a which would warrant setting aside the election held on motion to have the amended allegations included in the objections to the May 20 and the direction of a second election. election although this conduct was not specifically alleged in the objec- tions. It appears to me that granting such a motion would be tantamount to permitting the filing of untimely objections. This is especially true in THE REMEDY this case where the motion was made after the region's investigation was Having found that Respondent engaged in certain completed, the Regional Director's report on objections issued and the Board ruled on petitioners' objections. I am therefore dismissing the unfair labor practices, I recommend that it be required to motion Albuquerque Publishing Company, 219 NLRB 631 (1975). cease and desist therefrom and from any other unlawful BROWNING-FERRIS INDUSTRIES 69 conduct, and that it post an appropriate notice, attached (b) In any other manner interfering with, restraining, hereto as "Appendix." It is further recommended Re- or coercing its employees in the exercise of their right to spondent make whole employees Robert Andrus and self organization, to form, join, or assist any labor orga- Florian Ciukaj for any loss of pay as a result of the dis- nization, to bargain collectively through representatives crimination against them and reinstate them to their of their own choosing, and to engage in other concerted former positions without loss of seniority or other bene- activities for the purposes of collective bargaining or fits to the extent that Respondent has not already done other mutual aid or protection, or to refrain from any or so. Said backpay is to be computed in the manner pre- all such activities. scribed in F. W. Woolworth Company, 90 NLRB 289 2. Take the following affirmative action designed to ef- (1950) and Florida Steel Corporation, 231 NLRB 651 fectuate the policies of the Act: (1977). See, generally, Isis Plumbing & Heating Co., 139 (a) Make employees Robert Andrus and Florian NLRB 716 (1962). Ciukaj whole in the manner set forth in the section enti- Based on the foregoing findings of fact, conclusions of tled "The Remedy." law, and the entire record herein, and pursuant to Sec- (b) Post at its Lemont, Illinois, facility copies of the at- tion 10(c) of the Act, I hereby issue the following rec- tached notice marked "Appendix."" Copies of said ommended: notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respondent's au- ORDER' 0 thorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by The Respondent, Browning-Ferris Industries, Chemi- it for 60 consecutive days thereafter, in conspicuous cal Services, Inc., its officers, agents, successors, and as- places, including all places where notices to employees signs, shall: are customarily posted. Reasonable steps shall be taken 1. Cease and desist from: by Respondent to insure that said notices are not altered, (a) Interfering with the rights of employees to engage defaced, or covered by any other material. in protected concerted activity by discharging them in (c) Notify the Regional Director for Region 13, in violation of Section 8(a)(1) of the Act. writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IO 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 " In the event that this Order is enforced by a Judgment of a United findings, conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become its findings, conclusions, and Order, and all objections thereto ant to a Judgment of the United States Court of Appeals Enforcing an shall be deemed waived for all purposes. Order of the National Labor Relations Board."