Automated Waste Disposal, Inc.

914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Automated Waste Disposal, Inc. and Donald Fisher and Waste Material Sorters, Trimmers and Handlers Union, Local 958, AFL-CIO, Party to the Contract Automated Waste Disposal, Inc. and William R. Williams and Donald L. Fisher. Cases 2-CA- 21092, 2-CA-21146, and 2-CA-21147 May 11, 1988 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT On September 19, 1986, Administrative Law Judge Arthur A. Herman issued the attached deci- sion. The General Counsel and the Respondent filed exceptions and supporting briefs, and the Re- spondent filed a reply brief. The National Labor Relations Board has delegat- ed 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,2 and conclusions as modified 3 and to adopt the rec- ommended Order as modified. The judge found that the Respondent violated Section 8(a)(1) by Vice President Galante's promise of benefit to employee Donald Fisher because of Fisher's support on behalf of Local 813. However, the evidence establishes that the promises were made by Howard (Pete) Fisher whom the judge found, and we agree, was not a supervisor or agent of the Respondent. 4 Thus, we reverse the judge's finding and modify his recommended Order and notice accordingly. 1 The General Counsel excepts to the judge's failure to address the al- legation that the Respondent violated Sec. 8(a)(2) and (3) by enforcing a union-security clause after the expiration of the collective-bargaining agreement Given the judge's rulings during the hearing, it is possible that in fact the judge did address this issue We find It unnecessary, how- ever, to pass on the General Counsel's exception because the judge's rec- ommended Order making whole employees for the Respondent's unau- thorized dues deductions effectively remedies the additional violation the General Counsel urges. 'The General Counsel and the Respondent have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance 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 3 In accordance with our decision in New Horizons for the Retarded, 283 1173 (1987), interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621. Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U.S.0 § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). 4 In affirming the judge's finding that Howard (Pete) Fisher's state- ments to his brother Donald Fisher do not violate Sec. 8(a)(1) of the Act, we do not rely on the judge's comments at fn 23 of his decision. 288 NLRB Nc., 106 Based on Galante's telling Donald Fisher that Fisher's route was being cut and that he would be subject to surveillance, the judge found a violation of Section 8(a)(1), (3), and (4). The testimony showed that while the acts were threatened they were never effectuated because Fisher did not work on or after the date the threats were made. In order to constitute a violation of Section 8(a)(3) of the Act, there must be "discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discour- age membership in any labor organization . . . ." Likewise, a violation of Section 8(a)(4) of the Act requires a respondent "to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this Act . . . ." Therefore, as no action was taken against Donald Fisher, we find no violation of Section 8(a)(3) and (4) was established and reverse the judge's finding in this regard. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Automated Waste Disposal, Inc., F & H Sanitation, and JAT, New York, New York, its of- ficers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1.Insert the following as new paragraph 1(1) and reletter the subsequent paragraph. "(f) Threatening to cut employees' routes or to subject them to close surveillance because of their activities on behalf of Local 813, or any other labor organization, or because they filed charges with the National Labor Relations Board." 2. Substitute the following for paragraph 2(a). "(a) Offer to Donald Fisher immediate and full reinstatement to his former position as it existed on July 3, 1985, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay or other bene- fits suffered by reason of the discrimination against him in the manner described in the remedy sec- tion." 3. Substitute the attached notice for that of the administrative law judge. AUTOMATED WASTE DISPOSAL 915 , APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT interrogate you if you engage in union activities. WE WILL NOT threaten you with physical harm, more onerous working conditions, and discharge if you engage in union activities. WE WILL NOT solicit withdrawals of charges filed by you with the NLRB, or demand copies of affidavits that you may have submitted to the NLRB. WE WILL NOT deduct dues from your wages without your individual voluntary written authori- zation. WE WILL NOT discharge you because of your ac- tivities on behalf of Local 813 or any other labor organization. WE WILL NOT threaten you with cutting your routes or subjecting you to close surveillance if you engage in union activities or file charges with the NLRB. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Donald Fisher immediate and 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 previously enjoyed and wE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL notify Donald Fisher that we have re- moved from our files any reference to his dis- charge and that the discharge will not be used against him in any way. WE WILL reimburse all affected employees from whom dues have been illegally deducted for Local 958, with interest. DECISION STATEMENT OF THE CASE ARTHUR A. HERMAN, Administrative Law Judge. Based on charges filed by Donald Fisher on 11 June 1985 in Case 2-CA-21092, and on 9 July 1985 in Case 2- CA-21l47 (later amended on 9 August 1985), and by William R. Williams on 9 July 1985 in Case 2-CA- 21146, an order consolidating cases, consolidated com- plaint, and notice of hearing issued on 26 July 1985, al- leging that Automated Waste Disposal, Inc. (AWD or Respondent) has engaged in and is engaging in certain unfair labor practices in violation of Section 8(a)(1), (2), (3), and (4) of the Act. An order amending complaint issued on 20 August 1985, listing additional allegations of violations of Section 8(a)(1) of the Act. Respondent's an- swers deny the commission of any unfair labor prac- tices. 1 This case was tried before me on 26-28 August, 15-16 October, and 15 November 1985, and 2-3 January 1986. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by counsel for the General Counsel and Respondent, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a Connecticut corporation, is a wholly owned subsidiary of Suburban Carting of Northern Westchester and Putnam Counties, Inc., a New York corporation. Respondent is engaged in the collection and disposal of waste for commercial and industrial compa- nies. During the calendar year 1984, Respondent per- formed services valued in excess of $50,000 for enter- prises located in New York State, including New York Telephone Company, which enterprises are directly en- gaged in interstate commerce. Respondent admitted at the hearing and, based on the above facts, I find that Re- spondent has been, at all times material, an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATIONS The complaint alleges, Respondent does not deny, and I find that Waste Material Sorters, Trimmers and Han- dlers Union, Local 958, AFL-CIO, and Local 813, Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America are labor organiza- tions within the meaning of Section 2(5) of the Act. AUTOMATED WASTE DISPOSAL, INC., F & H SANITATION, AND JAT Wendell V Shepherd, Esq. and Lany Singer, Esq., for the General Counsel. Sanford E Pollack, Esq. and Swan M. Kirshenbaum, Esq. (Morahan M. Miller Associates, Inc.), for the Respond- ent. 1 At the conclusion of General's Counsel's case, Respondent moved to dismiss all the allegations in the complaint pertaining to Charging Party William R. Williams on the ground that Williams refused to participate in this proceeding and no evidence was presented at the hearing on his behalf. The General Counsel sought to Introduce into evidence two affi- davits obtained from Williams during the course of the investigation of this matter pursuant to Rule 804 of the Federal Rules of Evidence I re- jected the General Counsel's offer and placed G.0 Exhs. 50 and 51 in the rejected file. I also reserved decision on Respondent's motion. At this time, however, I grant Respondent's motion and dismiss all the allega- tions in the complaint pertaining to Williams. 916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background During the course of the hearing, two corporations other than AWD came in for consideration. One was F & H Sanitation and the other JAT. As stated above, AWD is engaged in the business of selling a refuse re- moval service to commercial and industrial accounts. It employs drivers who operate front-end loader and roll- off sanitation trucks. F & H also performs a refuse re- moval service but only for residential customers. Its driv- ers operate rear-end loader sanitation trucks. JAT em- ploys mechanics who repair and service trucks and equipment used by AWD and F & H. All three compa- nies operate out of the same address and have the same offices. Alfred J. Demarco is president, James Galante is vice president, and Thomas Michael Milo is secretary- treasurer of all three companies. On 27 July 1983 AWD and New York Connecticut In- dependent Drivers Union (the Independent) executed a 3-year collective-bargaining agreement in which AWD recognized the Independent as the representative of its drivers. The agreement was signed by James Galante on behalf of AWD, and by Howard (Pete) Fisher, as presi- dent of the Independent. On the same day, an addendum to the agreement was executed by Galante and Howard Fisher acknowledging the fact that the Independent had just held its organizational meetings on 26 and 28 July 1983, that Howard Fisher had been designated as the agent for the Independent at those meetings, and that al- though the Independent's constitution and bylaws bad not as yet been drafted, it was understood between Ga- lante and Howard Fisher that the latter was executing the collective-bargaining agreement on behalf of the em- ployees and that he would formally ratify the contract as president of the Independent immediately following its formal organization. At no time were the employees of F & H and JAT included in the unit covered by that contract. Dues were paid every month directly to Howard Fisher by all the drivers employed by AWD. According to his own testimony, given at this hearing on 16 October 1985, Howard Fisher had been employed by AWD for 5-1/2 years. That would imply that he was hired in or about April 1980. There is no testimony about what Howard Fisher's duties were when he was hired, but Galante testified that at all times material Howard was the shop steward for Local 958, AWD's safety director, and a swing driver. 2 Howard Fisher's brother, Donald, the Charging Party, was hired as a driver by AWD in April 1979 and, except for a 3-week period in February 1985, worked for Respondent until discharged on 14 July 1985. B. The 1985 Events The uncontroverted evidence revealed that in March 1985,8 Howard Fisher solicited authorization cards on 2 These duties will be described in more detail later on. 3 All dates hereinafter occurred in 1985 unless otherwise indicated. behalf of Local 958 from the drivers and mechanics em- ployed by AWD, F & H, and JAT. 4 According to the testimony of several employees, Howard Fisher handed out the cards in what was referred to as the drivers' room or Howard Fisher's office, and that is where the cards were signed. Howard Fisher admitted, however, that he originally met with some of the men in Galante's office for the purpose of handing out the cards because that was the biggest office available, but that Galante walked in during the meeting, and the men left to meet in Howard Fisher's office. Donald Fisher testified that he was called into How- ard's office on either 10 or 11 March; he was told the benefits that Local 958 had to offer and he was given a card to fill out and sign. After he did so, he handed it back to Howard. At that moment, Galante came into the room and Howard gave Galante all the signed cards.6 According to Donald, Galante smiled and said that Local 958 was his union and that the employees no longer had any power. On 18 March AWD and Local 958 signed an agree- ment in which AWD recognized Local 958 as the collec- tive-bargaining representative of all of its employees ex- cluding office clerical employees, guards and supervisors, and AWD appointed the Greater New York Waste Paper Association as its agent and representative to bar- gain with Local 958, and agreed to be bound by the terms of whatever contract is negotiated between the As- sociation and Local 958. 6 The complaint alleges in para- graph 9(b), and Respondent's answer does not deny, that in late March Respondent and Local 958 entered into a collective-bargaining agreement covering the terms and conditions of employment of Respondent's employees.7 Concerned about Galante's remarks that imputed weakness to Local 958, Donald sought help from Local 813. And so, on 10 April, Donald obtained authorization cards from Local 813, solicited and obtained signatures on the cards from the employees, and returned the signed cards to Local 813. Donald further testified that some time in May he was questioned by Galante in Ga- lante's office concerning his relationship with Local 813, and although he admitted that he had been approached by a Local 813 agent, he refused to answer any further questions about Local 813. At that point, according to Donald, Galante threatened him with a physical beating and told Donald that he was fired for refusing to answer his questions. Just then Howard walked in, and when Donald repeated what Galante had said, Howard advised Galante that he could not fire Donald for that reason, Galante relented, and Donald continued to work for AWD. 4 The total number of unit employees is put at 32-35. 5 The General Counsel introduced into evidence 25 signed cards (G C. Exh. 15). 6 G.0 Exh. 16 7 During the course of the hearing, it became evident that no signed contract was available to be introduced Into evidence, Testimony elicited from a Local 958 business representative failed to clarify the issue wheth- er such a contract actually existed. However, because the General Coun- sel alleges the existence of a contract and Respondent does not deny it, I accept the fact that it exists. AUTOMATED WASTE DISPOSAL 917 In addition to bringing Local 813 on the scene, Donald circulated a petition among the employees toward the end of May, and asked the employees to sign that they no longer wished to be represented by Local 958. 8 After obtaining 25 signatures on the petition, Donald brought it to the NLRB Regional Office and, on 11 June, filed the first of several charges against the Re- spondent. According to Donald, the following transpired thereafter: A few days later Donald received a call from Howard in which Howard told Donald that Galante wanted to know why Donald filed charges. When Donald refused to respond, Howard came over to Don- ald's house and presented an offer from Galante—if Donald dropped the charges, Galante would give him his seniority and vacation time that he lost in February, $3000 in cash, and a trailer truck job in Connecticut when the Company moved there in the near future. Donald asked for time to think about the offer, and Howard volunteered to pick Donald up the next morn- ing and drive him to work. When they got to the yard Galante was waiting for him, and he invited Donald to take a ride with him to a diner nearby. At the diner, Ga- lante told Donald that he was getting into something bigger than he realized and that he was "opening up a can of worms"; that even if Local 813 were to represent the employees, he, Galante, would make it miserable for Donald, and eventually Donald would either quit or get fired. Donald again asked for time to talk to Howard. They returned to the Respondent's premises, and Howard agreed with Galante, and so, Donald decided to drop the charges. Galante shook his hand and called his lawyer. Both Donald and Galante spoke to the lawyer, and after that Galante's secretary typed up a withdrawal statement for Donald's signature. 8 In addition, Galante had his secretary draw up a withdrawal petition for the employees to sign, and had Donald get the employees' signatures on it." On the next day, 19 June, Donald and Howard went to the NLRB Regional Office and Donald signed a withdrawal request. However, the Regional Di- rector rejected the request, and a few days later Galante told Donald that the NLRB had not accepted the with- drawal. In contrast to Donald's detailed version of the above incident, Respondent's counsel elicited the following tes- timony from Howard on direct examination: Do you know whether or not there came a time when employees were asked to sign a petition for the National Labor Relations Board withdrawing any charges that they had filed? (Pause) I show you what's been marked as General Counsel 8 G C. Exh. 2. Respondent sought to discredit Donald by contending that the petition did not have a heading at the time the employees signed it, but only a blank space at the top. I am of the opinion, however, that the heading was there, and that the employees knew full well what they were signing. In any event, the main thrust of the exhibit is to demon- strate the extent to which Donald had gone to have Local 958 removed as the representative of the employees. 9 G.C. Exh. 3. " G.0 Exh. 4. 4. Were you aware of the fact that that petition was being circulated at the time that it was signed, and I believe it's dated. A. June 18, 1985. Q. Were you aware that that petition was being circulated? A. I don't remember this. Q. You don't remember the petition? A. No. Q. Do you remember talking to any employees about whether or not they desired the charges that the NLRB be withdrawn, or the election if there was one by 813 not proceeding? A. The only thing I remember is I spoke to Donny. He had mentioned something about this to me. (Pause) What was the question? Q. Did you ask any employees to sign that peti- tion? A. No. Q. Were you present when any employees were asked to sign that petition? A. No. Q. Were you present when—strike that. Do you remember the facts and circumstances— strike that. (Pause) I show you General Counsel 3 and the original of General Counsel 4, and ask you if you were present at the time that those typed words were put on either of those 2 documents? A. No. Q. Were you present when either of them was signed? A. No. Q. Did you go with Donald Fisher your brother down to the National Labor Relations Board for the purpose of filing or giving the National Labor Relations Board any of these documents? A. I did come down with Donny. Q. Can you now tell me if you know what your knowledge of of those 2 documents is? A. I know Donny after I had spoken to hint, I told Donny, I thought he was doing the wrong thing and I suggested—I got the men to fill out cards. The men were for it 100 percent. I don't know why Donny was going to go down and do this. Q. This is your conversation with Donny? A. Yes, and I told him Donny the men aren't going to be behind you on this. That's when he de- cided to withdraw it. Q. Did you have any part in helping him formu- late the petition to withdraw, that's exhibit 4. A. No. When I seen this is after he had it done. Q. You went with him to the Board to file it? A. Right. And, the following is the extent of the Respondent's direct examination of Galante on the same incident: 918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Q. Did you ever have a meeting with Donald Fisher at Karen's Diner concerning where you used the phrase "opening a can of worms"? A. No. Q. Did you ever have a discussion with Donald concerning his solicitation of the men in regards to support for the ousting of 958? A. No. Q. Did there come a time when you learned that Donald wished to withdraw the petition that he had filed at the NLRB? A. Yes, I did. Q. How did you learn about that? A. I don't know the exact date, but Donald and his brother Howard came to my office and Donald told me that he would like to withdraw all the pro- ceedings against the company. At which time I picked up the phone and called you. Q. When you say Donald and his brother you mean Pete? A. Pete. Q. What did you then do after we spoke? A. I allowed Donald to have one of my secre- tarys type up a letter. Q. Did you tell him what to put in the letter? A. No. Q. Did you ever instruct either Howard or Donald Fisher to tell your employees that you wanted them to sign any kind of petition or any kind of union card? A. No. Q. Did you ever suggest to Donald that he ask the employees to sign papers for the NLRB? A. No. On 1 July Donald went to work despite pain in his leg. While on the truck, the pain became more severe, and Donald called Galante to tell him that he was bring- ing the truck in without completing the route. After re- turning to the yard, Donald went to the hospital as an out-patient and had X-rays taken. He did not go to work the next day. About 1:30 p.m. on 2 July, Galante called Donald and asked for copies of the affidavits he had given to the NLRB. Donald told Galante that he had thrown them away. Later that same day, and Howard confirms this, Howard came to Donald's house and asked for the affidavits and Donald repeated that he had thrown them away. At the same time, according to Donald, Howard told him that Galante was cutting his route and his working hours because Galante did not be- lieve that Donald ever attempted to drop the charges at the NLRB. According to Howard, Galante told him that there was too much work on the route, that there had been a lot of skips, that customers were complaining, and, therefore, he was going to add another truck and split the route. On 3 July Howard called Donald at home" to tell him which stops Galante had taken away " Donald did not go tO work on this day either. from him, and Galante got on the phone to confirm it. Donald told Galante that he had conducted a survey of his customers, and that he had a list of signatures from the customers on his route, each grading his service as good or excellent. Galante then said that Donald would be followed on the route to see to it that he limits his coffeebreaks to 15 minutes, takes a half hour lunch, and washes his truck once a week. On 5 July Donald went back to work. When he re- turned from his route he told Galante that he had a doc- tor's appointment the next day and would not be in to work. Galante suggested that Donald find some other type of work because of his injury. Galante then called the company doctor, Weinschel, and made an appoint- ment for Donald for 8 July," Donald saw his own doctor on 6 July and brought a back-to-work slip to Ga- lante that same day. According to Donald, Galante cursed him using a vulgar epithet. On Monday, 8 July, Galante told Donald to take his waste loads into Connecticut, rather than to Peekskill, his usual dumpsite. When Donald told Galante that he was unqualified to drive into Connecticut because he did not have a health card required by the Department of Transportation, Galante gave him a physical examination form, with a health card attached, and told Donald to have it filled out. Respondent was aware of the fact that Donald did not have a health card because on 25 April, Donald had been stopped by the Department of Trans- portation for not having a health card, and the depart- ment had notified Respondent by mail. This resulted in Respondent sending all of its drivers for physical exams, and Donald, along with Howard and some other drivers, had their examines on 6 May. The doctor, however, did not have health cards to give the employees. And so, on 10 July, Donald went to Dr. Weinschel for an examina- tion, he was given a clean bill of health and a health card; he brought these to the office and left copies there because no one was in the office Jimmy Discorio, an ad- mitted supervisor of Respondent, caned Donald at home that afternoon and told him that he needed a release from the Department of Transportation before he could qualify to drive to Connecticut. Therefore, on 12 July, Donald drove to Albany and obtained the release. He gave all the required papers to Discorio that afternoon and told Discorio that he was available to go to work the next day, 13 July (Saturday)." At that point, Dis- corio told Donald that there was no work for him." On Sunday afternoon, 14 July, Discorio telephoned Donald to tell him not to come to work on 15 July; that Galante and Baci were going to meet to discuss Donald's situation. Donald then told Discorio to put him back to work or tell him he was fired. Discorio suggested that 12 Donald did not keep this appointment because he had a followup appointment with his own doctor on 8 July after work. " Donald places Joseph Baci, business representative for Local 958, at the scene, and although the General Counsel called on Baci to testify, no questions were directed to'hun on this subject Baci did testify that Local 958 does not use dues-checkoff cards and employees are not required to sign such cards However, Baci did state that he believed that Local 958 had received dues from AWD that had been deducted from the pay- checks of AWD employees 14 The last day that Donald worked for the Respondent was 5 July AUTOMATED WASTE DISPOSAL 919 Donald talk to Galante. Donald called Galante and Ga- lante told him that he was fired for stealing. Donald was accused of having accepted a bribe from a customer named Ziebart. The incident that led to the ac- cusation is alleged by Respondent to have occurred on Saturday, 13 July, and the details are as follows as relat- ed by Discorio: I was on a route survey which entailed you follow the truck around and you inspect the con- tainers. When the driver lifts the containers, you in- spect the condition. If you think they should be re- placed, are they overloaded, are they constantly overloaded. More or less updating the route and the condition of the containers. It was part of a 2 day survey, because the route lasted for 2 days. On the second day, we arrived at a stop in Mount Kisco— Q. Who is we? A. I was following the truck. There was a new employee on the truck who was learning the hy- draulics and what the routes were all about. Q. You were not in the truck? A. I was not driving the truck. Q. You were along? A. Alone in my vehicle. Q. Who was the new driver? A. Tom Hollister. Q. What then happened? A. I was getting out at every stop because as you lift the container you have to check the bottom fairly close. It was an auto body shop, a rustproof- ing shop, Ziebart in Mount Kisco. They were put down for an extra pickup. When we got to the place the container was pretty well loaded. As I got out, I was checking the condition of the container. As it was being lifted, the owner of the place came out. I watched him, I was standing by the driver's door so I can see it. I watched him hand the driver money. Usually they don't pay at all for an extra pickup. It's billed, they sign the ticket. I at that point went up to the man and asked him what he was doing, because the driver refused to take it. He said I don't pick up money. I asked the owner what was the money for. He went on to explain, don't worry about it. Take it, take it. He had told us that on a number of occa- sions when he called for a pickup like this, he would pay the driver and the driver would not put down that he did the dump. I guess the driver would make the ticket get lost. Q, Do you know who this— A. I had gone on to ask him who— Q. You said it was the owner of Ziebart. Do you have a name? A. I asked him his name. He name was Zane Nevins. He owns the business that we were picking up. II had gone on to ask him more about it. Who are you talking about? He said the normal guy on the route. And I wanted to know who the normal guy on the route was. He told me it was Mr. Fisher— Q. Did he say his first name? A. Yes, Donald Fisher he said. I asked him how many times was this done and he said during the course of a year it's done quite often, either I call for an extra pickup or if he's here and I need an extra pickup he'll dump the normal dump and then he'll make me load it again so he could dump it again. And so, according to Discorio's testimony, there were just three people involved in the incident—Discorio, Hollister, and Nevins. Neither Hollister nor Nevins testi- fied. However, Respondent introduced into evidence a letter from Nevins written at Galante's request, dated 15 July, in which Nevins relates how the practice of paying off got started with Donald, and how on 13 July, "not knowing I was speaking to Automated Waste's General Manager James Discorio, I explained to him and the driver of the truck, Howard Fisher," exactly what I stated above." 6. In addition, Respondent introduced into evidence an affidavit signed by Discorio on 15 July which relates the incident of 13 July, but names Pete Fisher as the driver, not Hollister." Although Pete (Howard) Fisher was thoroughly questioned on other matters, both on direct and cross-examination, no ques- tions regarding this incident were put to him. On rebut- tal, Donald Fisher testified that on rare occasions he would make extra pickups from Ziebart, but that he never took any money from Ziebart for making those pickups or for any other reason. C. The Issues,. Analysis, and Conclusions 1. Single employer Initially, the issue of the relationship among the three companies, namely, AWD, F & H, and JAT, must be resolved. The General Counsel, contrary to Respondent, contends that the three companies constitute a single em- ployer. During the course of the hearing the General Counsel introduced evidence in this regard and request- ed, on the fourth day of hearing, that I grant her motion to amend the complaint permitting her to name F & H and JAT as co-respondents along with AWD. I denied her motion because of the lateness of her request, but did not preclude myself from drawing a conclusion that the three companies constituted a single employer if the evi- dence warrants such a conclusion. Respondent contends that it would be prejudiced if I were to include F & H and JAT in my findings because the complaint did not name those two companies and, alternatively, argues that in any event the three companies do not constitute a single employer. In determining whether separate corporations consti- tute a single employer under the Act, some of the princi- 15 Emphasis added. In response to my question during the General Counsel's cross-examination, regarding Pete Fisher's presence at Ziebart, Discorio stated that Fisher was driving the truck 16 R. Exh 6 17 R. Exh. 7. 920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pal factors long considered relevant by the Board are: (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership. See Sakrete of Northern California, 137 NLRB 1220, 1222 (1962), affd. 332 F.2d 902 (9th Cir. 1964), cert. denied 379 U.S. 961 (1965). These tests were cited with approval by the Supreme Court in Radio Union Local 1264 v. Broadcast Service, 380 U.S. 255, 256 (1965), and quoted with approval by the Supreme Court in many cases since then. In the instant case, a fair assessment of the evidence convinces me that the requisite factors are present suffi- cient to establish a single-employer relationship among the three companies. As stated above, both AWD and F & H Sanitation are engaged in the same business, i.e., selling a refuse removal service. While it is true that AWD caters to commercial and industrial accounts using front-end loader and roll-off trucks in the process, and F & H performs the service for residential customers employing rear-end loader tnicks to do the job, I find this to be a distinction without a difference. It is for all intents and purposes the same business. And, because JAT exists solely for the purpose of repairing and servic- ing the trucks and equipment used by AWD and F & H, I find a total interrelation of operations among the three companies. In addition, evidence was presented through several employees that from time to time F & H drivers were transferred to AWD. Moreover, all three compa- nies shared the same facilities. Galante testified that he supervised the clerical employees for all three compa- nies, that he did the hiring for all three companies, that Al Demarco, the president of all three companies, han- dled the labor relations for all three companies, and that all three companies had the same ownership. It should be noted also that the recognized unit for whom the parties bargained consists of the employees employed by all the three companies. On all the foregoing, I find that all the prescribed tests for a single-employer finding have been met and, accord- ingly, I find that AWD, F & H, and SAT constitute a single employer. In addition, I reject Respondent's con- tention that it would be prejudicial to Respondent for me to include F & H and SAT in my findings. I find that because of the close relationship of all three companies, Respondent has had ample notice and opportunity to be aware of the implications regarding all the companies. The very fact that Local 958 was named as the party to the contract in the complaint and that the complaint al- leges and Respondent does not deny that Local 958 had been recognized by Respondent as the collective-bargain- ing representative for the employees employed by all three companies is sufficient to conclude that Respond- ent knew from the beginning that all three companies were involved in this proceeding. They therefore shall be considered by me as a single employer for all intents and purposes. 2. Supervisory and/or agency status of Howard (Pete) Fisher and its effect on certain alleged violations of Section 8(a)(2) and (3) of the Act The General Counsel, contrary to Respondent, argues that Howard Fisher is a supervisor and/or an agent of Respondent within the meaning of the Act. Respondent contends that Howard Fisher neither exercises independ- ent judgment nor has the authority to exercise independ- ent judgment in connection with his duties. Although some of the evidence regarding his duties is conflicting, certain details of his work and status are agreed to by both sides. These include his status as president of the In- dependent Union and later on as shop steward for Local 958; his appointment by Galante as safety director for AWD shortly after Respondent recognized the Inde- pendent as the collective-bargaining representative of its employees; 18 and his job as swing driver for AWD.19 Galante testified that Howard spent approximately 60 percent of his time as a swing driver, 25-30 percent on union business, and the balance as safety director. The General Counsel sought to show that Howard Fisher exercised supervisory authority by enumerating some of his other duties. These included his verification of timecards, his assigning of extra pickups to employees, and his job of interviewing applicants for employment openings. Howard testified that he does interview appli- cants, he checks the drivers' licenses and qualifications, and he takes the applicants out for road tests. 2° On com- pletion of these duties, he signs his name on the top of the application and takes the application to Galante for his approval or disapproval after he, Howard, tells Ga- lante whether he thinks the applicant qualities. Galante stated that Howard's job of verifying timecards is rou- tine, that he only assigns employees to extra pickups after Galante has decided who to assign and Howard merely acts as a conduit for Galante's choice, and that Galante himself decides at all times whom to hire after reviewing employment applications. I credit Galante. It is well established that the possession of any one of the indicia specified in Section 2(11) of the Act is suffi- cient to confer supervisory status on an employee, pro- vided that authority is exercised with independent judg- ment on behalf of management and not in a routine manner. In my analysis of the facts in this case, I am of the opinion that Galante was the overall supervisor of the entire operation. Nothing of consequence occurred without his approval, and while he delegated duties to others, he retained for himself the final decision. Howard Fisher, in his role as union shop steward on the premises, worked closely with Galante in overseeing the employ- ees' activities, but in my opinion, not as a representative of management, but rather as a conduit between the em- ployees and management. No evidence was presented by the General Counsel to show that the employees were dissatisfied with Howard's leadership as president of the Independent Union, nor, except for Donald Fisher, was 18 According to Galante, the safety director goes on the road and makes sure that all the containers are in safe working order, he makes daily checks of the condition of the trucks, and he reports all findings to Galante He works with a safety committee consisting of an employee from each of the three companies who checks on accidents and issue re- ports. 19 Respondent employs two swing drivers, one for AWD (Fisher) and Leroy Sterry for F & H. These swing drivers substitute for regular driv- ers who are either ill or on vacation They also are available in the event of a truck breakdown or skipped stops. 20 Howard contends that he performs these duties as safety director. AUTOMATED WASTE DISPOSAL 921 there any opposition to Howard's bringing in Local 958 to represent the employees, or his selection as shop stew- ard. In the latter position, it would certainly be incon- gruous for him to be considered a supervisor for Re- spondent. For these reasons, I find merit in Respondent's conten- tion that while Howard Fisher exercised some authority in carrying out his duties, I do not fmd that Howard Fisher used independent judgment in exercising such au- thority. I find that Howard Fisher's duties were strictly routine and that he served as a conduit for management instructions. The burden of proving supervisory status rests on the party asserting that such status exists, and I conclude that the General Counsel has not met its burden.2" The General Counsel further contends that Respond- ent should be held liable for the acts of Howard Fisher because Howard acted under the apparent authority of Respondent as its agent. Under the doctrine of apparent authority, the test for determining whether an employee is an agent is whether the other employees would rea- sonably believe that the employee in question was re- flecting company policy and speaking and acting for management. In each of the cases cited by the General Counsel for the proposition that the employee was an agent, the individual involved did have the apparent au- thority of acting for the company because of the position he held in the hierarchy of management. Such is not the case in the instant proceeding. We are faced with the un- usual situation in which the conduit of management's in- structions and decisions is the employee representative, the shop steward. Howard Fisher has the unique position of being the union representative and at the same time of being the safety director. In performing both jobs, he must bear in mind the well being of the employees whom he represents, and he must impartially assist in making judgments on their handling of their vehicles. All the employees who testified acknowledged the fact that Howard was their union representative, that it was he who was the president of the Independent Union, and that it was he who switched unions and had the employ- ees sign cards for Local 958. At no time, however, did any employee testify that they believed Respondent was responsible for Howard's actions. It would appear, and I find, that Howard acted on his own in seeking out Local 958 to represent Respondent's employees, and that at no time did the employees believe that Howard acted with the apparent authority of Respondent. Thus, I conclude that Howard Fisher was not an agent of Respondent when he solicited cards for Local 958, nor did he possess the apparent authority of being an agent within the meaning of the Act while he functioned in the dual ca- pacity of shop steward and safety director. Having come to that conclusion, I further conclude that his solicitation of cards from the employees on behalf of Local 958 was not violative of Section 8(a)(2) of the Act, and I shall dismiss that allegation in the com- plaint. I find that when Howard obtained signed authori- zation cards from 25 unit employees, Local 958 at that point represented an uncoerced majority of unit employ- 21 Bowne of Houston, 280 NLRB 1222 (1986). ees and Respondent did not violate the Act when it rec- ognized Local 958 as the collective-bargaining represent- ative of the unit employees. Further, I conclude that the Respondent did not violate Section 8(a)(2) of the Act by executing a collective-bargaining agreement with Local 958, nor did Respondent violate Section 8(a)(3) by in- cluding in that collective-bargaining agreement a valid union-security clause. 3. Respondent's deduction of dues from its employees' wages The uncontroverted evidence established that Re- spondent deducts dues from the paychecks of its employ- ees and remits the dues to Local 958. Although subpoe- naed, no dues-checkoff authorization cards were supplied to the General Counsel, and Local 958's representative testified that none of its members, including Respond- ent's employees, were asked or required to sign such cards. I draw the inference, therefore, that no dues- checkoff authorization cards were ever signed by any of Respondent's unit employees, and that despite that fact, dues were deducted from the employees' paychecks. Under the circumstances, I find that Respondent made unauthorized dues deductions from its employees pay- checks and thereby violated Section 8(a)(1), (2), and (3) of the Act.22 4. The numerous allegations of 8(a)(1) conduct Initially, it should be stated that all the independent 8(a)(1) allegations concern Donald Fisher. In fact, except for Williams, who did not testify, no other employee was at all involved in, or engaged in, any union activity in opposition to Local 958. Some of the employees testified that they had signed the petition and cards that Donald passed around in favor of Local 813, but no testimony was elicited from any of them to the effect that they had ever been questioned by Respondent regarding such ac- tions. Second, in light of my findings that Howard Fisher is neither a supervisor nor an agent of Respondent, I find those 8(a)(1) allegations relating to his sole involvement with Donald, as stated above in section B, not to be vio- lative of the Act." Thus, the testimony of Donald and Galante becomes the sole bone of contention. In this regard, I generally credit Donald. I find that from mid-April onward, Donald was actively involved on behalf of Local 813.24 22 Southland Knitwear, 260 NLRB 642, 653 (1982). 23 In fact, I view all the relevant conversations between Donald and Howard to be of a brotherly nature, and not at all coercive or threaten- ing. It appeared to me from Howard's manner on the stand that he did not want to see Donald involved in a bad situation from which he would not be able to extricate himself 24 Donald states that his interest in Local 813 began with Galante's remark in mid-March that "Local 958 was his union that the employees no longer had any power." I find it difficult to believe that a sophisticat- ed person of Galante's calibre would make such a remark in the presence of any employees, and so I do not credit Donald in this instance and I find no violation of the Act. Moreover, there was testimony, although denied by Donald, to the effect that when asked by other employees, Donald volunteered the information that he had been paid by Local 813 for each authorization card he obtained I make no finding regarding the Continued 922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Donald solicited authorization cards from Respondent's employees for Local 813, and toward the end of May, circulated a petition among the employees which stated that the signatories no longer wished to be represented by Local 958. Donald did not attempt to hide these ac- tivities, and I credit Donald when he states that Galante questioned him in May about his relationship with Local 813, and that Galante threatened him with physical harm and discharge when he refused to respond. Donald was a forthright witness at this point and he made every effort to accurately recall the events that transpired from then on. Although Respondent contends that it had no knowl- edge of Donald's union activities from April into May, I find otherwise. Unlike Donald's thorough account of the incident, Galante stated a flat denial of the conversation, and Howard, who, according to Donald was present during the latter part of it, was not questioned about the threats. Thus, I find that sometime in May, Respondent violated Section 8(a)(1) of the Act when Galante interro- gated Donald about his activities on behalf of Local 813, and when Galante threatened Donald with physical harm and discharge for refusing to answer Galante's questions regarding Local 813. The next alleged violations of the Act occurred in June after Donald had filed charges against Respondent. Having received a copy of the charges from the NLRB, Respondent certainly by this time had knowledge of Donald's activities and acted on it. Also, as detailed above in section B, I fmd that Galante, in order to induce Donald to withdraw the charges, made a promise of benefits to him, threatened Donald Fisher with more onerous working conditions and discharges because he supported Local 813 and because he filed charges with the NLRB, and solicited a withdrawal of the charges and a petition for withdrawal, all in violation of Section 8(a)(1) of the Act. On 2 July Galante again violated Section 8(a)(1) of the Act when he telephoned Donald and demanded a copy of the affidavit Donald had given the Board in support of his charges. I draw this conclusion because I credit Donald's testimony in which he relates how Galante caused him to attempt to withdraw the charges he had filed with the Board. Again, on 3 July, Galante violated Section 8(a)(1), (3), and (4) of the Act, when he told Donald over the phone that he had cut his route, and that Donald would be sub- ject to close surveillance while out on his route. I find that the action taken by Galante was the direct result of Donald's dissident union activity and because he had filed charges with the Board.25 5. Donald Fisher's discharge Where a discharged employee alleges that his dis- charge constitutes an unfair labor practice, the General Counsel bears the burden of proving that the employee's exercise of a protected activity was a motivating factor accuracy of this latter event, but merely offer it to show that other possi- bilities could exist to prompt action by an employee to engage in dissi- dent union activity, and that Donald's reason may have been something other than that which he stated and which I discredit 25 Frenchy's K & T& Earl's News Stand, 247 NLRB 1212 (1980). in the termination. As an affirmative defense, the em- ployer may show by a preponderance of the evidence that it would have terminated the employee despite the protected activity. Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899, 909 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982) (approved in NLRB v. Trans- portation Management Corp., 462 U.S. 393, 403-404 (1983)). In the instant case, I find, based on a preponder- ance of the credible evidence, that the reason advanced by the Respondent was a pretext to disguise the Re- spondent's true motive to discharge Donald Fisher based on his union activity. Initially, it should be stated that because I have al- ready found by my conclusions in the previous section that Respondent had knowledge of Donald's union activ- ity, and expressed its animus to such activities, I further find that the General Counsel has established a prima facie case of wrongful discharge under the test set forth in Wright Line and its progeny. The General Counsel in- troduced sufficient credible evidence that protected con- duct, namely, seeking fellow employee support for Local 813, and opposition to Local 958, plus the filing of charges with the Board, was a substantial, motivating factor in Respondent's decision to terminate Donald Fisher. On the other hand Respondent's account of what took place when Discorio visited Ziebart's premises, as described supra, in section B, is so full of inconsistencies as to be utterly unbelievable, and not sufficient to prove by way of credible evidence that Donald committed a wrong that might justify termination even in the absence of protected conduct. On direct examination, Discorio stated that he was fol- lowing a truck in which a new driver, Tom Hollister, was learning the hydraulics and what the routes were. No mention is made by Discorio that Howard Fisher is present, and one is led to believe that when the incident at Ziebart's occurred, only Discorio, Hollister, and Nevins are present, and that Nevins offered the money to Hollister. It was also Discorio's direct testimony that when he arrived at Ziebart's, "the container was pretty well loaded." In a written statement dated 15 July and introduced by Respondent as Exhibit 7, Discorio contra- dicts himself and says that the container was only one- quarter full, and that Nevins offered the money to Howard Fisher; and no mention is made of Hollister at all in the statement. In both his direct examination and his statement, Discorio says that the stop was made that Saturday, 13 July, because Ziebart had called up for an extra pickup. Now, the gist of Respondent's contention is that Donald Fisher was stealing money from Respondent by making unsolicited pickups for Ziebart, thereby de- priving Respondent of income. And to support its con- tention, Respondent introduces into evidence (R. Exh. 6), a letter dated 15 July from Nevins to Galante, in which he states that because of the high cost of carting, and at the suggestion of Donald Fisher, he resorts to subterfuge and does not call Respondent for an extra pickup but ar- ranges with Donald to make the extra pickup, when needed, for a $10 tip on the side. Nevins admits in the letter that on occasion he would call for a legitimate extra pickup just to "make it look good" because he was AUTOMATED WASTE DISPOSAL 923 aware that Respondent did spot checks on the routes. He goes on to say that, "unfortunately one [spot check] was done on 7/13/85 and not knowing I was speaking to Automated Waste's general manager, James Discorio, I explained to him and the driver on the truck, Howard Fisher, exactly what I stated above." 26 This narration is just fraught with absurdities. if Nevins had called, as he states and as Discorio states, for a legitimate extra pickup why would he make an offer of $10 to the driver? A le- gitimate extra pickup call is recorded in the Respondent's office before a driver is sent out and the customer has to be charged for the pickup. Also, Nevins states that he was making these payoffs to Donald. Is it logical to be- lieve that he would expose himself to a stranger, namely, Howard, and offer him money, especially with another stranger, standing by, namely, Discorio? I believe that would be highly unlikely. Also, what happened to Hol- lister? Was he there or not? And, in contradiction to all of this testimony, 27 Donald testified that he never took any money from Ziebart. I credit Donald. Whatever prompted Nevins to write the letter to Ga- lante is beyond my comprehension. But, an explanation of what really transpired between Donald and Galante is not. My conclusion is that this was all part of a scam, a charade, to get Donald discharged. The events, as out- ltned above in section B, which preceded this eventful day, were just overwhelming to Galante to keep Donald on the job. Donald was a thorn in his side and Galante had to terminate him. Even if the events occurred as Discorio testified, it is inconceivable that Donald would have been discharged without being given the opportuni- ty to respond to the charges. This is not to say that I credit Discorio; to the contrary, I discredit Discorio completely and find the event as related by him to be a distortion of the truth. Thus, I conclude that Galante was so anxious to get rid of Donald because of his union activities that he would have reacted to any indiscretion committed by Donald. Accordingly, I find that the General Counsel has met her burden of proof in establishing that Donald Fisher was discharged for his union activity, and that Respond- ent has failed to show by a preponderance of the evi- dence that it would have terminated Donald despite the protected activity. I conclude, therefore, that Donald Fisher was discharged in violation of Section 8(a)(3) and (I) of the Act. CONCLUS/ONS OF LAW 1. Respondents Automated Waste Disposal, Inc., F & H Sanitation, and JAT constitute a single employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 958 and Local 813 are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondent, acting through its agents, violated Sec- tion $(a)(1) of the Act by interrogating employees, by threatening employees with physical harm, more onerous 26 It should be noted that Nevins mmIces na mention of the presence of Hollister. 27 Respondent did not call Nevins or Hollister to testify, nor did Re- spondent question Howard Fisher regarding this alleged incident working conditions and discharge, by soliciting a with- drawal of charges filed with the NLRB, and by demand- ing a copy of an affidavit submitted by an employee to the Board, all because the employees assisted Local 813 for the purpose of collective bargaining. 4. Respondent violated Section 8(a)(2) and (1) of the Act by making unauthorized dues deductions from its employees paychecks. 5. Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Donald Fisher on 15 July 1985. 6. Respondent violated Section 8(a)(4), (3), and (1) of the Act by cutting Donald Fisher's route and subjecting him to close surveillance, all because of his union activi- ty on behalf of Local 813 and because he filed charges with the NLRB. 7. Respondent did not engage in any other unfair labor practices as alleged. 8.. The unfair labor practices enumerated above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY As the Respondent has been found to have engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirm- ative action designed to effectuate the policies of the Act. Having found that the Respondent discriminatorily disk charged Donald Fisher, I shall recommend that the Re- spondent be required to make Donald Fisher whole for any loss of earnings he may have suffered as a result of the discrimination against him The loss of earnings shall be computed as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as set forth in Isis Plumb- ing Co., 138 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 651 (1977). Having found that the Respondent has illegally de- ducted dues from the wages of employees, I shall recom- mend that the Respondent be required to make the em- ployees whole for any loss of wages they may have suf- fered as a result of such illegal deduction. The loss shall be computed in the same manner as set forth in the pre- ceding paragraph. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed28 ORDER The Respondent, Automated Waste Disposal, Inc., F & H Sanitation, and JAT, New York, New York, its offi- cers, agents, successbrs, and assigns, shall 1. Cease and desist from (a) Interrogating employees for engaging in union ac- tivities. 28 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 45 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) Threatening employees with physical harm, more onerous working conditions, and discharge for engaging in union activities. (c) Soliciting withdrawals of charges filed with the NLRB, and demanding copies of affidavits submitted by employees to the NLRB. (d) Deducting dues from the wages of employees with- out the voluntary written authorization therefor from each of the employees. (e) Discharging employees because of their activities on behalf of Local 813, or any other labor organization. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their Section 7 rights. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer to Donald Fisher immediate and full rein- statement to his former position, without prejudice to his seniority or other rights previously enjoyed, and make him whole for any loss of pay or other benefits suffered by reason of the discrimination against him in the manner described above in the remedy section. (b) Remove from the files any reference to the unlaw- ful discharge and notify Donald Fisher in writing that this has been done and the discharge will not be used against him in any way. (c) Reimburse all affected employees from whom dues has been deducted for Local 958, with interest, in the manner described above in the remedy section. (d) Preserve and, on request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under ,the terms of this recommended Order. (e) Post at its place of business, copies of the attached notice marked "Appendix."29 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent immediately on receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted._ Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps have been taken to comply. For the purpose of determining or se- curing compliance with this Order, the Board, or any of its duly authorized representatives, may obtain discovery from the Respondent, its officers, agents, successors, or assigns, or any other person having knowledge concern- ing any compliance matter, in the manner provided by the Federal Rules of Civil Procedure. Such discovery shall be conducted under the supervision of the United States court of appeals enforcing this Order and may be had upon any matter reasonably related to compliance with this Order, as enforced by the court. 29 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."