US Recycling and Disposal

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 351 NLRB No. 67 1090 U.S. Recycling and Disposal, LLC and General Chauffeurs, Sales Drivers and Helpers Union Local 179. Case 13–CA–43702 December 14, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND WALSH On May 21, 2007, Administrative Law Judge George Carson II issued the attached decision. The Respondent and the General Counsel each filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply to the General Counsel’s answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, U.S. Recycling and Disposal, LLC, Plainfield, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Dawn J. Blume, Esq., for the General Counsel. Stanley E. Niew and Kenneth M. Mastney Jr., Esqs., for the Respondent. DECISION STATEMENT OF THE CASE GEORGE CARSON II, Administrative Law Judge. This case was tried in Chicago, Illinois, on March 28 and 29, 2007, pur- 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. We agree with the judge that the Respondent violated Sec. 8(a)(3) by discharging employee Richard Mann because of his union activities. In addition to the reasons given by the judge for finding the discharge unlawful, we also rely on evidence establishing that the Respondent disparately enforced its reporting policy. Thus, the record establishes that Respondent employee (and election observer) Steve Hudson vio- lated the same reporting policy as Mann but was not discharged for the infraction. Although Chairman Battista joins his colleagues in adopting the judge’s finding that the Respondent unlawfully discharged Mann, he relies solely on the evidence of disparate treatment, discussed above, and finds it unnecessary to evaluate the judge’s other reasons, including the Respondent’s failure to give Mann an opportunity to explain why he did not report the damage-to-customer-property incident. suant to a complaint that issued on January 29, 2007.1 The com- plaint alleges that the Respondent threatened employees and interrogated employees in violation of Section 8(a)(1) of the National Labor Relations Act (the Act), and warned and dis- charged employee Richard Mann because of his union activities in violation of Section 8(a)(3) of the Act. The Respondent’s answer denies any violation of the Act. I find that the Respon- dent violated the Act substantially as alleged in the complaint. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the follow- ing FINDINGS OF FACT I. JURISDICTION The Respondent, U.S. Recycling and Disposal, LLC, the Company, is an Illinois corporation engaged in waste hauling from its facility in Plainfield, Illinois. The Company annually purchases and receives goods and materials valued in excess of $50,000 directly from points outside the State of Illinois. The Respondent admits, and I find and conclude, that it is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Respondent admits, and I find and conclude, that Gen- eral Chauffeurs, Sales Drivers and Helpers Union Local 179, the Union, is a labor organization within the meaning of Sec- tion 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background Richard Grad founded the Company in September 2004. As general manager, he directs the Company’s operations from its Plainfield, Illinois facility at which six drivers, who operate waste hauling trucks, are employed. Prior to February 1, 2007, the Company had no employee manual. Although Grad denied that the Company had any written policies, prior to February 1, 2007, it had issued a written memorandum dated May 2, 2005, regarding yellow safety shirts and steel toed work boots, a writ- ten memorandum dated April 20, 2006, advising employees that they would be individually responsible for the cost of any damage to culverts but not mentioning a reporting requirement, and a written memorandum dated January 26, 2007, relating, among other requirements, to completion of the drivers’ daily report including marking the box that the condition of the vehi- cle is satisfactory. Notwithstanding the absence of an employee manual, the Company administered progressive discipline as established by the employee warning notice forms upon which discipline is recorded. The forms provide for a first, second, and third warning, either oral or written. Two oral policies are relevant to this proceeding. The first relates to “pretripping,” the requirement that a driver perform an inspection of his truck before leaving the facility. The sec- ond relates to the reporting of accidents or damage to a com- pany vehicle or to property. 1 All dates are in 2006, unless otherwise indicated. The charge was filed on November 3, and was amended on December 28. U.S. RECYCLING & DISPOSAL, LLC 1091 On September 15, the Union filed a petition for an election, and, on October 27, a representation election was held at the Company’s facility from 4:30 to 5:30 a.m., prior to the drivers leaving to service the customers on their routes. The employees selected the Union as their collective-bargaining representative. Thereafter, the Company and the Union agreed upon and signed a collective-bargaining agreement effective April 1, 2007. Appended thereto is an employee manual dated February 1, 2007. B. Facts Driver Richard Mann was hired in the last week of June. Shortly after being hired, General Manager Grad questioned Mann about damage to a truck that Mann had previously driven. The driver who damaged the truck did not report the damage. In the conversation, Grad told Mann “that if anything like that ever happens to call him immediately.” Mann did so when he dented a fender on a truck in late July or early August. In late August, Mann contacted the Union. He signed a union authorization card and, on August 23 and 24, solicited and ob- tained authorization cards from four of the remaining five driv- ers. There is no evidence that the Company was aware of this activity. On August 31, while picking up a dumpster at a construction site, Mann drove his truck over a new concrete sidewalk that was above ground level because the contractor had not yet brought the sidewalk to ground level by backfilling the area adjacent to the sidewalk with dirt. The sidewalk cracked. Mann was aware that his back tires had rolled over the sidewalk, but he was unaware that the sidewalk had been damaged. The con- tractor notified the Company of the damage, and Dispatcher Chris Collins called Mann on the cellular telephone in his truck, asking whether he was aware that he had damaged the side- walk. Mann informed Collins that he “may or may not have” damaged the sidewalk, that he was “not aware that it broke.” The company salesperson, James Purvis, went to the site to inspect the damage and confirm that the Company was respon- sible. The cost of repair was $250. General Manager Grad spoke with Mann, telling him that he had “plenty of room to maneuver” and that he needed “to be more careful because that cost money.” Grad testified that he gave Mann an oral warning and in- formed him that “the next time he does not report [an] incident immediately upon occurrence, he will be discharged.” Grad admitted that he did not fill out a warning document relating to the foregoing incident. Mann denies that Grad informed him that he was being given an oral warning, that he was simply told to be more careful. Mann acknowledged that he was aware, on the basis of the damaged truck conversation with Grad shortly after being hired, that he must report “damage to [the] vehicle immedi- ately.” I credit Mann. Grad’s claim that he gave Mann an oral warning is contradicted by the warning he issued Mann on October 27. On that warning, in response to the question “Has the employee been previously warned?” Grad circled, “NO.” In late September, Mann spoke with General Manager Grad. He referred to the recently posted notice of election by asking “what the crap was above the time clock.” Grad replied that he did not know, “[Y]ou tell me. Your drivers, your fellow drivers are trying to bring the Union in here.” Mann answered that he did not know too much about unions, that “all they do is take your money and don’t do anything for you.” Grad agreed and stated that “the Union has their rules that he’ll have to play by” and rhetorically questioned whether “the drivers can play by those rules.” He then noted that “whatever the minimum hours required by whatever union contract is put in place . . . [, t]hat’s all you would get and overtime would be cut at that point.” Mann recalled that Grad was assisting him with a mechanical problem at a location at the facility referred to as the quarry when this conversation occurred. Grad denied having the fore- going conversation. Drivers Steve Hudson and John Ellison both testified that Grad did not engage in any conversation relating to the Union with either of them. The foregoing is con- sistent with Mann’s testimony that he, not Grad, initiated the conversation. I credit Mann. Mann, in the foregoing conversation, did not reveal his prounion sentiments. At the election on the morning of October 27, Mann served as the election observer for the Union. Two business agents, Thomas Flynn and Rich Garrett, were present at the election. The employees selected the Union as their col- lective-bargaining representative. The tally of votes was com- pleted by the Board agent in the presence of Mann, driver Steve Hudson who served as observer for the Company, General Manager Grad, Grad’s brother Carl who is employed as a driver/mechanic, and the two business agents. When it was completed, Grad turned to Business Agent Rich Garrett and said, “[O]kay, you two guys get the fuck off my property.” Garrett commented that “it doesn’t have to be like this,” and Grad stated, “I don’t want to talk about it, just get the fuck out.” Mann corroborated the foregoing exchange, recalling that one of the business agents stated that there was “no need to be hos- tile,” to which Grad responded saying, “I’m not being hostile, just grab your shit and get the fuck off my property.” Grad testified that he simply asked the business agents to leave. He denied “swearing.” The vulgar language which Grad used did not invoke a deity and did not constitute swearing. Thus, his denial that he swore is irrelevant. Driver Steve Hud- son, who served as observer for the Company and appeared as a witness for the Respondent, was not questioned regarding the words used by Grad at the conclusion of the election. I credit Flynn and Mann. Prior to January 2007, the Company’s requirement that driv- ers complete a pretrip inspection was oral. Department of Transportation regulations require that drivers sign their inspec- tion report only if a defect is noted; however, the daily report used by the Company, after blocks relating to various compo- nents that would be checked if there were a problem, has a block followed by the statement “Condition of the above vehi- cle is satisfactory” and a signature line. The memorandum of January 26, 2007, directs the drivers, even if there are “no is- sues” with their truck, to check the “satisfactory” box and, pre- sumably, sign the document insofar as “all information on the driver’s daily sheet must be completed.” The memorandum does not set out what is included in a pretrip inspection. In practice, a minimal pretrip inspection includes checking the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1092 lights and tires of the vehicle. Some drivers also check the fluid levels. Prior to October 27, no employee had ever been disciplined for failure to conduct a pretrip inspection. A total of 73 daily reports submitted by various drivers during the period from July 1, 2006, through January 31, 2007, are unsigned and the “satisfactory” box is unchecked. Thus, in each of those in- stances, there is no confirmation that the respective drivers conducted a pretrip inspection. On October 27, following the election and dismissal of the union representatives, Mann performed a pretrip inspection, checking the lights and tires of his vehicle. He then departed on his route. He observed Grad in the area, but they did not speak. Mann’s daily report reflects that the condition of the vehicle was satisfactory and bears his signature. General Manager Grad testified that he observed that Mann failed to perform a pretrip inspection, that he simply got into his vehicle and left. He did not warn him at that time. He did not speak with him on his cellular telephone because “I nor- mally don’t confront people while they’re driving down the street on the Nextel [cellular telephone].” Upon Mann’s return to the facility on the afternoon of Octo- ber 27, Grad issued a written warning to him for failing to per- form a pretrip inspection. Mann acknowledges that he signed the warning and wrote “I concur.” He explained that he did so because Grad is “a very confrontational, argumentative per- son,” and he, Mann, felt that he “had a bull’s eye on my back” and that the warning was “just retaliation.” On October 30, at a construction jobsite in Naperville, Illi- nois, Mann’s truck rolled over a roll of mesh that goes under- neath concrete foundations. There was an employee in the area. Mann got out of the truck and spoke with the employee, asking how he wanted to handle it and offering to pay for any damage. The employee stated that Mann need not “worry about it, it’s used,” and that they were “going to throw it away anyways.” Mann inspected the truck to assure that there was no damage, that the mesh had not put a hole in a tire. He was unable to obtain access to the dumpster because of mud. He called the facility, spoke with Grad about the mud, and was given his next assignment. Mann did not mention the wire mesh. He explained that if he called “the supervisor every time I ran over trash, I would be on the phone all day.”2 Driver John Ellison, called as a witness by the Respondent, testified that Mann called him saying that he “had run over something at a jobsite within, I mean, nothing really specific.” Counsel then asked Ellison whether Mann said that “he knew he’d be in trouble.” Ellison answered that Mann “just men- tioned that he thought he might be in trouble, but that again nothing really specific.” Mann denied the foregoing conversa- tion. Ellison’s demeanor, the absence of any reference to the word “trouble” in his initial answer, and his qualification of 2 Counsel for the General Counsel moved that I adjourn rather than close the hearing so that subpoena enforcement could be sought to obtain the testimony of the employee with whom Mann spoke. I denied the motion but permitted counsel to make an offer of proof. I do not rely upon that offer of proof in any way. I rely upon Mann’s uncontra- dicted testimony regarding his conversation with the employee. both answers with the words “nothing really specific,” reflect adversely upon his credibility. I credit Mann and find that no such conversation occurred. Jeff Wilson, vice president of Rock and Roll Concrete, was not at the site when the foregoing occurred. When he arrived, the employee told him what had happened. Wilson called the Company and spoke with Grad, asking who “was going to pay for a roll of wire mesh that a, my truck had just run over.” Grad replied that he was unaware of the situation. Wilson repeated that a driver for the Company “had backed up over a roll of wire mesh.” Grad told him to send a bill and that he would “get to the bottom of this and get back to you.” They then discussed how much the Company charged for a dumpster and the possi- bility of Rock and Roll Concrete hiring the Company as the waste disposal company for a future job on the Company’s “side of town.” Wilson testified that a roll of mesh cost about $75. He never sent a bill because he was “[b]usy. Bigger things to worry about, forgot.” He has not been reimbursed. Notwithstanding the statement made by the employee to Mann that the mesh was used, Wilson claimed that it was not “junk,” that it was “30 rolls of wire mesh in one pile, . . . they’re all the same.” Wilson did not explain how only one roll of mesh could have been damaged insofar as there was a pile of 30 rolls. He did not ex- plain why his being “busy” would have caused him to “forget” to request a $75 reimbursement. Unlike the situation regarding the broken concrete, in this instance company salesperson James Purvis did not go to the site to investigate. Upon Mann’s return to the facility, Grad asked about the job he had gone to in Naperville. Mann asked, “[W]hat about it?” Grad asked, [W]hat about that wire mesh.?” Mann started to explain, but Grad cut him off stating, “I don’t want to hear it. Remember that sidewalk you broke a few months ago that cost me 250 bucks and now this, give me your keys, grab your shit and get out of here, you’re done.” Grad testified that he asked Mann whether “there was some- thing that he wanted to tell me about the Cantore Construction site,” and that Mann looked “stupefied” and said, “No.” Grad then asked if Mann wanted “to talk about the roll of wire mesh,” and that Mann replied, “[O]h that, I’m going to take care of that personally with the customer.” Grad told Mann to give him the keys, “that he was through.” Grad testified that he discharged Mann not for causing damage but for “[n]ot report- ing the accident.” A handwritten statement by Grad relating to this incident does not report that Mann stated that he was “go- ing to take care of that personally with the customer.” There was no reason for Mann to have made such a statement since he had been told that the mesh was trash. I credit Mann and find that, when he began to explain what had occurred, Grad told him that he did not “want to hear it” and discharged him. The policy relating to damage reports was unwritten; thus, there are varying versions of what was required. General Man- ager Grad testified that he informed every driver that “[a]nytime there is any damage, whether it be an accident, inci- dent, whether there is a problem with a customer, that they’re supposed to call the office immediately.” He expanded upon this, explaining that any time there was a “problem with a cus- tomer, you always call in. I don’t want the drivers confronting U.S. RECYCLING & DISPOSAL, LLC 1093 customers.” Despite this, driver Steve Hudson, who served as the observer for the Company at the election, was not termi- nated for an incident that occurred on January 30, 2007. Grad documented the incident upon a warning notice that states: “Knocked over windows, glass everywhere, gave our customer & the homeowner an attitude about ‘it not being his job.’” Grad admitted that he learned of this altercation from the customer. Grad explained that the glass had been thrown away and testi- fied that Hudson denied giving the customer an “attitude.” Con- trary to Grad’s testimony regarding the alleged denial, Hudson signed the document and checked the line stating “I AGREE with the employer’s statement.” Hudson was not asked what he was told regarding the report- ing policy. He was asked about his understanding of “what would happen to you if you didn’t report an accident or damage to property right after it occurred.” Hudson answered that he “would be expecting a write up or if it was an accident involv- ing the vehicle, probably termination. That’s just standard.” Although Grad testified that he personally informed each driver of the reporting policy, driver John Ellison testified that Grad “never said nothing to me about it,” that he received the information from fellow driver Jay Ellis. Ellison noted that he already knew what Ellis told him, that “[i]t was pretty much assumed that, well, anyplace you work, if there is an accident or anything like that, you’re supposed to report it.” Salesperson Purvis, although not mentioning the word “dam- age,” recalled overhearing Grad tell Mann that “any time that an incident involving one of our trucks, an accident on the highway, an accident on a jobsite, anything, drivers were to stop, call it in immediately.” Mann, on the basis of his conversation with Grad concerning the truck that Mann had previously driven, understood that he must report “damage to [the] vehicle immediately.” On July 12, driver Edward Grebic was discharged. His time- card reflects that Grebic worked for the Company for 3 days, a total of 24.30 hours on July 10, 11, and 12. On his third day of work, July 12, the truck he was driving sustained damage to both front fenders and the bumper, which had been pushed to within 1 inch of the left front tire. When asked about the dam- age, Grebic claimed that he “did not know” how this had hap- pened. Grebic was discharged for failing to report an accident. Although not clear from the record, it appears that the dam- age to the truck that Grebic was driving was the basis for the conversation between Mann and Grad in early July. Grad con- firmed with Mann that the truck had not been damaged when Mann had last driven it. C. Analysis and Concluding Findings 1. The 8(a)(1) allegations The complaint alleges that, in late September, the Respon- dent, by General Manager Grad, threatened employees with stricter enforcement of work rules, loss of overtime, and reduc- tion of hours if they selected the Union as their collective- bargaining representative. “Employee-initiation of conversations about unions does not provide a justification under the Act for ensuing unlawful statements which supervisors choose to make, as such conver- sations progress.” Altorfer Machinery Co., 332 NLRB 130, 135 (2000). “[U]nlawful statements are no less unlawful because it . . . [was not] the supervisor who initiated discussion of a union or unions.” Ibid. The Respondent’s brief does not discuss Grad’s statements to Mann. The brief states that Mann’s testimony was “inconsis- tent with GC’s [General Counsel’s] opening statement.” Open- ing statements are not evidence. My analysis and findings are based upon Mann’s credited testimony regarding what Grad said to him. Grad’s statement that “the Union has their rules that he’ll have to play by” and his rhetorical question as to whether “the drivers can play by those rules,” referred to the rules of the Union. I find no threat of stricter enforcement of the Respon- dent’s oral work rules in those statements. Similarly, the minimum hour requirement was stated in terms of “whatever union contract is put in place.” The General Counsel argues that the statement relating to minimum hours was the same as the threat to cut working hours found in Felsa Knitting Mills, Inc., 203 NLRB 504 (1974). In that case, the threat was of a specific reduction to 35 hours, stated as “Union hours,” but without reference to any contract. Id. at 508. Grad’s reference was to “whatever union contract is put in place”; thus the hours would be hours agreed upon in collective bargaining and not a threat of “retaliatory action solely on his own initiative.” Milford Fabricating Co., 193 NLRB 1012, 1023 fn. 18 (1971). See also Miller Industries Towing Equip- ment, 342 NLRB 1074, 1076 fn. 13 (2004). Insofar as no num- ber of hours was stated, there is no basis for concluding that any contractual minimum would constitute a reduction. There was no threat that the Respondent would reduce hours. Grad did threaten to reduce overtime. After referring to a contractual minimum hour requirement, Grad added that the minimum hour requirement was all the employees would get, that “overtime would be cut at that point.” The cutting of over- time was an action that the Respondent would take. The loss of overtime was not “carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably prob- able consequences beyond his control. . . .” NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969). The Respondent, by threatening loss of overtime if the employees selected the Un- ion as their collective-bargaining representative, violated Sec- tion 8(a)(1) of the Act. The complaint also alleges one instance of interrogation in late September. The subpoenaed witness that the General Counsel anticipated would testify to the interrogation did not appear; thus there is no evidence in support of this allegation. Counsel for the General Counsel, in her brief, requests that I reconsider my ruling denying her motion for an adjournment to pursue subpoena enforcement. I have done so, and I reaffirm that ruling made pursuant to my authority under Section 102.35(6) of the Board’s Rules and Regulations to regulate the course of the hearing. On the first day of the hearing, counsel advised that she had two brief witnesses under subpoena who would not be present until the following day and that their tes- timony related to Mann’s “state of mind.” Nothing was said about a witness relating to the interrogation allegation. In view of the nature of the anticipated testimony, I requested the Re- spondent to proceed to present its evidence, although the Gen- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1094 eral Counsel had not rested. If the two absent witnesses had been present, this hearing would have concluded in 1 day. On the morning of the second day of hearing, one of the two wit- nesses appeared. The other did not. Counsel for the General Counsel moved that I adjourn the hearing in order to obtain subpoena enforcement upon not one, but two witnesses, the expected second witness and a third witness who had not previ- ously been mentioned and whose testimony related to the alle- gation of interrogation. I accepted an offer of proof with regard to the testimony expected from the missing second witness, which, as stated in footnote 2, above, I have not relied upon insofar as I have credited Mann. I closed the hearing and denied the request to adjourn the hearing to permit subpoena enforce- ment with regard to the third witness, the existence of whom was not mentioned until 10 minutes prior to the close of the hearing and whom counsel for the General Counsel acknowl- edged she “never expected . . . to show.” I reaffirm that ruling. I shall recommend that the allegation relating to interrogation be dismissed. 2. The 8(a)(3) allegations The complaint alleges that Richard Mann was warned and discharged because of his union activities in violation of Sec- tion 8(a)(3) of the Act. In assessing the evidence pursuant to the analytical framework prescribed in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), I find that Mann’s presence at the election as the observer for the Union establishes the criteria of union activity and the Respondent’s knowledge of that activity. Animus is established by General Manager Grad’s threat to reduce overtime if the employees selected the Union as their collective-bargaining representative. Even in the absence of the threat, the circumstances surround- ing the warning and discharge of Mann fully support an infer- ence of animus. The warning and discharge were adverse ac- tions that directly affected Mann’s employment. I find that the General Counsel established that union activity was a substan- tial and motivating factor for the Respondent’s actions. Manno Electric, 321 NLRB 278 (1996). Thus, it is incumbent to the Respondent to demonstrate that the same action would have taken place even in the absence of Mann’s protected conduct. With regard to the warning, prior to October 27, no driver had been warned for failing to perform a pretrip inspection. I find it incredible that, over the 2-year period since September 2004, Grad had not become aware of any occasion upon which a driver had not performed a pretrip inspection. A total of 73 unchecked and unsigned driver daily reports establish a lack of enforcement of the policy. Even if I were to have found that Mann did not perform a pretrip inspection, the timing of the warning, on the day that Mann served as observer for the Union and on the day that Grad had vulgarly directed the union repre- sentatives to leave his property, suggests an unlawful motive. See Harran Transportation Co., 319 NLRB 461, 463 (1995). That suggestion is reinforced by the absence of prior enforce- ment of the pretrip inspection policy. General Manager Grad claims that he observed Mann get into his truck without conducting a pretrip inspection and drive off. He made no attempt to stop him. Insofar as Grad was in a position to observe the alleged dereliction, he was in a position to rectify the situation at that time. Indeed, Grad testified that, if he observed a driver not performing a pretrip inspection, he would “[g]o right to them and tell them that . . . they got to do it.” He did not tell Mann anything. Even if Grad could not have been heard if he had shouted at Mann, he could have called Mann on his cellular telephone. His testimony that it is not his practice to call drivers on the street misses the point. Mann was still at the facility. I do not credit Grad’s testimony. The brief of the Respondent asserts that Mann, “in his exu- berance [following the election victory of the Union] failed to conduct a vehicle inspection” and that his claim of not wanting a confrontation “does not fit reality” because he was “ready to take on his employer.” There is no evidence that Mann was “ready to take on” anybody. I have credited the testimony of Mann that he signed the warning in order to avoid a confronta- tion. See Air Caterers, Inc., 154 NLRB 455, 462 (1965). Grad was the confrontational party. Having heard Grad vulgarly tell the union representatives to get off of his property, Mann rea- sonably sought to avoid a confrontation. The brief of the Respondent does not address the daily report signed by Mann that reflects that he did conduct a pretrip in- spection and that the condition of the vehicle was satisfactory. Mann was not warned for falsifying a document. When the reason given for a disciplinary action is either false, or does not exist, the Respondent has not rebutted the General Counsel’s prima facie case. Limestone Apparel Corp., 255 NLRB 722 (1981). I find that the Respondent issued the warning for failure to perform a pretrip inspection to Mann in retaliation for his union activity and that, by doing so, the Respondent violated Section 8(a)(3) of the Act. The Respondent contends that Mann was discharged because he violated the oral policy requiring the immediate reporting of damage to property. Mann understood that he was to report any accident resulting in damage to his vehicle. So far as Mann knew, there was no damage. He was told by the individual pre- sent that the mesh was used and was going to be thrown away. There was no accident; thus there was nothing to report. The requirement for a report was an oral policy that was stated differently by every witness who testified. According to Grad, “Anytime there is any damage, whether it be an accident, incident, whether there is a problem with a customer, . . . they’re supposed to call the office immediately.” Purvis under- stood that any time there was “an incident involving one of our trucks, an accident on the highway, an accident on a jobsite, anything, drivers were to stop, call it in immediately.” Driver John Ellison knew that “[i]t was pretty much assumed that, well, anyplace you work, if there is an accident or anything like that, you’re supposed to report it.” Driver Steve Hudson under- stood that if a driver did not immediately report an accident or damage to property, the driver “would be expecting a write up or if it was an accident involving the vehicle, probably termina- tion.” Contrary to the statement in the Respondent’s brief that Hudson believed that he would be “fi[r]ed if he did not report damage to property immediately,” his testimony reflects an understanding that incidental damage and accidents involving the vehicle would be treated differently. Unreported incidental damage would result in a “write up;” unreported accidents in- volving the company vehicle would result in termination. That U.S. RECYCLING & DISPOSAL, LLC 1095 understanding was borne out in January when a customer re- ported that Hudson had given him an “attitude.” If, as Grad claimed, the Respondent required that when there was either damage or a “problem with a customer . . . call the office im- mediately,” Hudson would have been terminated. On April 20, the Respondent had issued a written memoran- dum advising employees that they would be individually re- sponsible for the cost of any damage to culverts. The memo- randum is silent regarding any reporting requirement. Mann was not involved in an accident on October 30. So far as he knew there was no damage to anything. If he called every time he “ran over trash, . . . [he] would be on the phone all day.” The Respondent could certainly choose to believe the com- plaint of Vice President Jeff Miller of Rock and Roll Concrete if it had a rational basis for doing so after investigating the matter. Unlike the situation regarding the sidewalk that Mann had broken in August, prior to the Respondent’s knowledge of his union activity, the Respondent did not investigate to deter- mine whether the damage reported by Miller had, in fact, oc- curred as he claimed. I have credited the testimony of Mann that Grad cut him off as he was attempting to explain what occurred. He did not “want to hear it.” Purvis was not sent to the jobsite to determine what had occurred. The Respondent lost no money because Rock and Roll Concrete never sought reimbursement. Whether the failure of Rock and Roll Concrete to bill the Respondent was, as Miller testified, due to his being too “busy . . . forgot,” or upon his determining that the mesh was used is not estab- lished. Investigation by Purvis would have established how it was possible for Mann to have damaged only one roll of mesh in a pile containing some 30 rolls of mesh unless that roll was not in the pile and had been used and was to be thrown away as Mann was told by the employee with whom he spoke. Accepting one version of an event without obtaining or con- sidering all the facts suggests a discriminatory motive. As stated, with Board approval, in Bantek West, Inc., 344 NLRB 886, 895 (2005: “The failure to conduct a meaningful investigation or to give the employee [who is the subject of the investigation] an op- portunity to explain” are clear indicia of discriminatory intent. K & M Electronics, 283 NLRB 279, 291 fn. 45 (1987). When addressing discriminatory discipline, the Respondent “not only must separate its tainted motivation here from any le- gitimate motivation, but it must persuade that its legitimate motivation outweighs its unlawful motivation so much that the Company would have imposed the discipline even in the absence of any union activities.” Formosa Plastics, 320 NLRB 631, 648 (1996). The Respondent has not persuaded “that its legitimate moti- vation outweighs its unlawful motivation so much that the Company would have imposed the discipline even in the ab- sence of any union activities.” There was no accident. Mann was told that there was no damage. The Respondent did not, as it had in August, send a representative to the jobsite to confirm that there was damage for which the Respondent was responsi- ble. The discharge of Mann 3 days after the election victory of the Union at which he served as observer for the Union and 3 days after the unprecedented warning issued to him for alleg- edly failing to conduct a pretrip inspection was effectuated without giving him the opportunity to explain and with no in- vestigation whatsoever. The foregoing facts belie any claim of legitimate motivation. The Respondent argues that the facts of this case “are identi- cal” to the facts in Grocery Haulers, Inc., 315 NLRB 1312 (1995). Contrary to that argument, the cases are not identical. In Grocery Haulers, Inc., the company had documentary pho- tographic evidence of the damage, a 2-1/2-foot section of stock- ade fence that had been flattened by the trailer of the truck that had backed into the fence. When confronted with his failure to report the damage, the driver denied being aware that he had damaged the fence. Id. at 1315. In this case the Company had no documentary evidence establishing any damage, and the driver did not deny the incident. Mann was cut off by Grad who did not permit him to explain that he understood that there was no damage because the mesh was used and was to be thrown away. A more applicable case is Thurston Motor Lines, 263 NLRB 1101 (1982), in which the respondent never sought the em- ployee’s “version of the ‘accident’ or the reasons why he did not report it.” In that case, in which the employee had chipped a brick on a loading dock, the respondent did investigate and determined that the employee had chipped a brick. The Board found that the respondent “seized upon a trifling incident, called it an ‘accident,’ and used it as a pretext to discharge” the employee for his union activity. Ibid. In this case the Respon- dent discharged Mann with no investigation whatsoever. The Respondent argues that its discharge of employee Ed- ward Grebic establishes an absence of disparity. I disagree. The Respondent’s investigation of the damage caused by Gre- bic was instantaneous; it had only to look at his truck. The Re- spondent did not see the damage that Mann had allegedly caused, and it sent no representative to the jobsite to confirm the damage reported by Miller. The discharge of a 3-day em- ployee who denied knowing how damage to two fenders and the bumper of his truck occurred does not establish consistent enforcement of the Respondent’s oral policy relating to the immediate reporting of accidents or damage. The Respondent has not established that Mann would have been discharged in the absence of his union activity. I find that the Respondent discharged Richard Mann because of his union activity in viola- tion of Section 8(a)(3) of the Act. CONCLUSIONS OF LAW 1. By threatening employees with loss of overtime if they selected the Union as their collective-bargaining representative, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. By warning Richard Mann on October 27, 2006, because of his union activities, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sec- tion 8(a)(1) and (3) and Section 2(6) and (7) of the Act. 3. By discharging Richard Mann on October 30, 2006, be- cause of his union activities, the Respondent has engaged in DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1096 unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. The Respondent having discriminatorily warned and dis- charged Richard Mann, it must rescind the warning and offer him reinstatement and make him whole for any loss of earnings and other benefits, computed on a quarterly basis from October 30, 2006, to date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). The Respondent must also post an appropriate notice. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended3 ORDER The Respondent, U.S. Recycling and Disposal, LLC, Plain- field, Illinois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees with loss of overtime if they se- lected the Union as their collective-bargaining representative. (b) Warning, discharging, or otherwise discriminating against any employee for supporting General Chauffeurs, Sales Drivers and Helpers Union Local 179, or any other union. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Within 14 days from the date of this Order, rescind the written warning issued to Richard Mann on October 27, 2006. (b) Within 14 days from the date of this Order, offer Richard Mann full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previ- ously enjoyed. (c) Make Richard Mann whole for any loss of earnings and other benefits suffered as a result of the discrimination against him in the manner set forth in the remedy section of the deci- sion. (d) Within 14 days from the date of this Order, remove from its files any reference to the unlawful warning and unlawful discharge, and within 3 days thereafter notify Richard Mann in writing that this has been done and that the warning and dis- charge will not be used against him in any way. (e) Preserve and, within 14 days of a request, or such addi- tional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board 3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. or its agents, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (f) Within 14 days after service by the Region, post at its fa- cility in Plainfield, Illinois, copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in con- spicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employ- ees employed by the Respondent at any time since September 30, 2006. (g) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed inso- far as it alleges violations of the Act not specifically found. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board had found that we violated Federal labor law and has ordered us to post and obey this no- tice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties WE WILL NOT threaten you with loss of overtime if you select the Union as your collective-bargaining representative. WE WILL NOT warn, discharge, or otherwise discriminate against any of you for supporting General Chauffeurs, Sales Drivers and Helpers Union Local 179, or any other union. 4 If 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” U.S. RECYCLING & DISPOSAL, LLC 1097 WE WILL, within 14 days from the date of the Board’s Order, rescind the warning issued to Richard Mann on October 27, 2006. WE WILL, within 14 days from the date of the Board’s Order offer Richard Mann full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privi- leges previously enjoyed. WE WILL make him whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, less any net interim earnings, plus interest, in the manner set forth in the remedy section of the decision. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful warning and discharge of Richard Mann and, WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the warning and discharge will not be used against him in any way. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce any of you in the exercise of your rights guar- anteed by Section 7 of the Act. U.S. RECYCLING AND DISPOSAL, LLC