Browning-Ferris Industries

National Labor Relations Board - Board Decisions

Mar 9, 1992

306 N.L.R.B. 682 (N.L.R.B. 1992)

682
306 NLRB No. 127
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In adopting the judge’s credibility findings, we note in addition to
his observation of the demeanor of witnesses, his strong rejection of
the Respondent’s witnesses’ testimony, which he variously character-
ized as ‘‘blatant fabrication,’’ ‘‘phony,’’ ‘‘stilted,’’ ‘‘bad faith,’’
‘‘less-than-credible,’’ and ‘‘unpersuasive.’’ We note that Shop Main-
tenance Manager Canady vacillated in his testimony on the oral or
written warnings he alleged that he had given to Giarrusso. We also
find discrepancies between Canady’s sworn statements and his sworn
testimony as to what Giarrusso said to him when he received his
written warning, and about what Lento allegedly said about being
‘‘tired of driving’’ as compared with ‘‘tired of throwing garbage.’’
We also note the discrepancy between employee Blackburn’s testi-
mony that he had told Route Supervisor Tillman on April 9 that he
needed to leave early the next day to go to court and his pretrial
statement that he asked Tillman on April 10, sometime after noon,
if he could leave early to meet with his lawyer. Blackburn was un-
able to provide any documentation that he had gone to court. Fi-
nally, we find Operations Manager Briggs’ and District Manager
Wynberg’s testimony contrived. They testified that Lento had his
uniforms with him when he returned at 2 p.m. on April 11; and yet
Briggs then sent him a letter the next day telling him to bring in
his uniforms. In any event, although as the judge acknowledged
there are some unanswered questions about the discharge, we agree
with the judge’s findings that the General Counsel proved by a pre-
ponderance of the evidence that Lento’s union activities were a mo-
tivating factor in the Respondent’s discharge of him and that the Re-
spondent failed to show that it would have discharged Lento even
in the absence of Lento’s union activities.
1 All dates are in 1990 unless otherwise indicated.
2 References to the two-volume transcript of testimony are by vol-
ume and page. Exhibits are designated G.C. Exh. for the General
Counsel’s and R. Exh. for Respondent Company’s.
The Cape Coral District of Browning-Ferris Indus-
tries of Florida, Inc. and Thomas Lento and
Robert Giarrusso. Cases 12–CA–13923 and 12–
CA–13924
March 9, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 11, 1991, Administrative Law Judge
Richard J. Linton issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed and withdrew limited exceptions
and an answering brief, and the Respondent filed a
reply 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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions 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, The Cape Coral District of
Browning-Ferris Industries of Florida, Inc., Cape
Coral, Florida, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Eduardo Soto, Esq., for the General Counsel.
Grant D. Petersen, Esq. (Haynsworth, Baldwin, Johnson &
Harper), of Tampa, Florida, for the Respondent.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This is a
discharge case. Finding merit to the Government’s allega-
tions that the Company discharged Robert Giarrusso and
Thomas Lento because of their support for Teamsters Local
Union No. 79, I order the Company to offer the two
discriminatees immediate reinstatement and to make them
whole, with interest.
I presided at this hearing in Fort Myers, Florida, July 8–
9, 1991, pursuant to the November 29, 1990, amended con-
solidated complaint (complaint) issued by the General Coun-
sel of the National Labor Relations Board through the Re-
gional Director for Region 12 of the Board. The complaint
is based on charges filed April 16, 1990, by Thomas Lento
(Lento) in Case 12–CA–13923 and by Robert Giarrusso
(Giarrusso) in Case 12–CA–13924 against The Cape Coral
District of Browning-Ferris Industries of Florida, Inc. (Re-
spondent, the Company, or Cape Coral).1 At the beginning
of the hearing two other cases, and related complaint allega-
tions, were severed and remanded to the Regional Director
for further processing. (Tr. 1:7–10.)2
In the complaint the General Counsel alleges that Re-
spondent Cape Coral violated Section 8(a)(1) of the Act, be-
tween February 11 and April 11, by interrogating employees
about their union activities and sympathies, promising them
improved conditions, higher wages, and promotions if they
abandoned their support of the Union, and impliedly threat-
ening to discharge them because of their union activities; and
Section 8(a)(3) of the Act, by issuing a written warning to
Robert Giarrusso about March 12, by discharging and/or con-
structively discharging Giarrusso on the same date, and by
discharging Thomas Lento about April 11, 1990.
By its answer the the Company admits certain factual mat-
ters, denies discharging Giarrusso and Lento, and denies vio-
lating the Act.
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 Company, I make the
following
683BROWNING-FERRIS INDUSTRIES
3 Respondent presumably is a subsidiary of Browning-Ferris Indus-
tries. The latter’s home office is in Houston, Texas. (Tr. 2:330.) Un-
less otherwise indicated, in this decision I use ‘‘BFI’’ as a shorthand
reference for the parent or overall corporate organization.
4 News items and reports indicate that effective June 28, 1991, the
international union shortened its name to the International Brother-
hood of Teamsters, AFL–CIO.
FINDINGS OF FACT
I. JURISDICTION
A Florida corporation, Respondent Cape Coral operates a
waste management facility at Cape Coral, Florida.3 During
the past 12 months, the Company purchased and received at
its Cape Coral facility goods and services valued at $50,000
or more directly from points located outside Florida. (Tr.
1:11.) The Company admits, and I find, that it is an em-
ployer within the meaning of Section 2(2), (6), and (7) of the
Act.
II. LABOR ORGANIZATION INVOLVED
The Company admits (Tr. 1:11), and I find, that Team-
sters, Chauffeurs and Helpers Local Union No. 79, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, AFL–CIO is a labor
organization within the meaning of Section 2(5) of the Act.4
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Management
Larry Wynberg is district manager for the Fort Myers Dis-
trict and the Cape Coral District, the latter including the
North Fort Myers satellite. (Tr. 2:280–281.) The district
names apparently take the names of companies BFI has ac-
quired, for Wynberg refers to the Fort Myers Company (Tr.
2:280, 313) as well as to the Cape Coral Pine Island Dis-
posal Service, Inc. (Cape Coral). (Tr. 2:281–282.) The parties
stipulated that BFI acquired Cape Coral on June 1, 1989. (Tr.
1:18–20.) Wynberg’s superior, Regional Vice President Neil
Clark, is located at BFI’s Southeast Regional Office in At-
lanta, Georgia. (Tr. 2:273, 305, 323, 330.)
Norman James was the ‘‘company manager’’ reporting to
Wynberg until his March 12, 1990 termination. (Tr.1:12;
2:300.) Although a witness to one or two matters, James is
not prominent in the evidence, and he did not testify. Martin
Ring, briefly mentioned in the evidence, is the operations
manager at the Fort Myers District. (Tr. 2:308, 312.) The
events in this case occurred in the Cape Coral District.
David Briggs has been the operations manager at Cape
Coral since April 2, 1990. (Tr. 2:263, 297.) Briggs’ prede-
cessor, Roger Edwards, stipulated to have been a statutory
supervisor, was terminated March 12, 1990. (Tr. 1:12.) Ed-
wards did not testify. Wynberg hired Briggs who transferred
from another BFI location. (Tr. 2:261–262, 297, 299.) Work-
ing for supervisors reporting to Briggs, alleged dischargee
Thomas Lento drove a disposal truck for Cape Coral.
(Tr.1:26.)
Charles Canady is Cape Coral’s shop maintenance man-
ager. (Tr. 2:221). Canady reports to Wynberg or, when he
was there, to Norman James. (Tr. 2:241, 300.) Alleged dis-
chargee Robert Giarrusso worked as a maintenance utility
person under Canady’s supervision. (Tr. 1:98–99; 2:222.)
2. Acquisition barbecue
Shortly after the Company acquired the Cape Coral facil-
ity, it sponsored a barbecue with the acquired employees and
their wives for the purpose of mutual introductions and to
permit Wynberg to explain the Company’s medical coverage
and other benefits. Wynberg there announced the Company’s
plan to increase the employees’ wage levels beginning imme-
diately, with a pay review scheduled for November or De-
cember 1989 and again in April and October 1990.
(Tr.2:290–293.) Lento recalls the barbecue, but was unable
to confirm or deny the part about wage increases. (Tr.1:65–
66.) The General Counsel offered no evidence contradicting
Wynberg.
Wynberg also testified that at the June 1989 acquisition of
Cape Coral he instructed the operations manager to begin
equalizing the routes so as to achieve fairness of the work-
loads, presumably also in relation to the time required.
(Tr.2:288.) This goal, also part of a 2-year plan by Wynburg,
apparently was described at the barbecue.
3. Union organizing campaign
In February 1990 Cape Coral driver Thomas Lento con-
tacted Kenneth W. Wood, secretary-treasurer of Teamsters
Local 79. A first meeting was held on Saturday, February 10,
at a local park with some 25 to 27 employees attending. Au-
thorization cards were signed. On February 27 the Union, by
Wood, filed a petition in Case 12–RC–7265 to represent the
Cape Coral employees, estimated to be 31 in number. (G.C.
Exh. 2.) By letter (G.C. Exh. 5) dated March 30, Wood ad-
vised Wynberg that 10 named employees (with Lento as the
first name) were assisting the Union in an organizing cam-
paign, and warned Wynberg not to violate the legal rights of
the employees. Wynberg received the letter on April 2. (Tr.
1:17, 26–31.) Wynberg acknowledges that as of Lento’s al-
leged discharge on April 11 (the Company contends Lento
quit), he was aware that Lento favored the Union. (Tr.
2:329.)
The Union won the April 18 election by a vote of 24 to
15, with 3 challenged ballots (G.C. Exh. 3), and on May 2,
1990, the Acting Regional Director for Region 12 certified
Teamsters Local 79 as the exclusive bargaining representa-
tive of the Company’s employees in the following unit (G.C.
Exh. 4):
All full-time and regular part-time drivers, helpers, me-
chanics, and warehousemen at the Employer’s facility
located at 1112 Southeast 9th Lane, Cape Coral, Flor-
ida; excluding all other employees, guards and super-
visors as defined in the Act.
The parties stipulated that the Company and Local 79 have
signed a 1-year collective-bargaining agreement, effective
March 1, 1991, through February 29, 1992, covering the cer-
tified unit. (Tr. 1:15–16.)
684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B. Allegations of 8(a)(1) Coercion
1. February 11, 1990, by Roger Edwards
a. Allegation
Complaint paragraph 5 alleges that about February 11
Roger Edwards ‘‘interrogated employees concerning their
union membership, activities, and sympathies.’’ Robert
Giarrusso testified in support of this allegation.
b. Facts
Maintenance employee Robert Giarrusso began work for
the Company in 1988. (Tr. 1:98.) At the initial organizational
meeting of Saturday, February 10, Giarrusso signed an au-
thorization card. (Tr. 1:100.) Giarrusso testified that about 3
p.m. the following Monday, February l2, then Operations
Manager Roger Edwards, in the driveway outside the me-
chanic shop, asked Giarrusso why he was causing all the
union problems. Denying that he was causing any union
problems, Giarrusso asserted that if he became the shop
steward, Edwards ‘‘would be the first one I’d come after le-
gally.’’ (Tr. 1:100–101, 118–119.) Hired by Edwards in
1962, back hoe operator Theodore Bell was a witness to the
conversation and confirms the version of Giarrusso. (Tr.
1:101, 135–37.)
Before his employment with Cape Coral, Giarrusso was a
member of Teamsters Local 560 (New Jersey, apparently) for
28 years. (Tr. 1:99.) Giarrusso and Norman James, the com-
pany manager, had a history of engaging in banter with each
other about union matters before February, but that ceased
after February 10. Giarrusso did not joke with Edwards, and
they were serious in their conversation of February 12. (Tr.
1:99, 119–120.) As I have mentioned, neither James nor Ed-
wards testified.
c. Conclusions
Both Giarrusso and Bell testified persuasively about this
matter, and I credit each.
Edwards made but a single interrogatory of Giarrusso on
this occasion. Whether the initial portion of Giarrusso’s an-
swer satisfied Edwards, or whether the pit-bull character of
the rest of Giarrusso’s response intimidated Edwards, I need
not decide. The test of lawfulness is the tendency to coerce,
not whether a supervisor or manager succeeded in coercing.
Edwards impliedly inquired about the first union meeting.
There is no evidence that Giarrusso had announced his at-
tendance. The meeting was not a topic management was at
liberty to interrogate an employee about. Indeed, the nature
of the question would create the impression of management
surveillance of union activities. (The complaint contains no
allegation of creation of impression of surveillance.) Finding
that Edwards’ question had a tendency to coerce, I find, as
alleged, that the Company violated Section 8(a)(1) of the Act
by such interrogation.
2. April 4, 1990
a. Allegations
Complaint paragraph 6 alleges that about April 4 David
Briggs ‘‘interrogated employees concerning their union mem-
bership, activities, and sympathies.’’ Thomas Lento testified
in support of this allegation.
Complaint paragraph 7 alleges that about April 4 David
Briggs ‘‘promised employees better working conditions,
higher wages, and promotions if they would abandon their
support of and activities on behalf of the Union.’’ Lento also
testified in support of this allegation.
b. Facts
After visiting Cape Coral in March and interviewing with
Wynberg, Briggs arrived on April 2 to begin work. Spending
his first day in the office, on April 3 Briggs began riding
with drivers on their routes, riding with about half of the 35
or so drivers over the next 2 to 3 weeks. (Tr. 2:263, 272–
273.) Thomas Lento testified that when Briggs was intro-
duced to the drivers, the drivers were told that Briggs had
transferred there to solve problems and that he would be
riding with them over the next 3 weeks to talk with them
and learn about any problems. (Tr. 1:32.)
Briggs rode with Lento on April 5. Briggs asserts that he
first spoke of family, his own career at BFI of driver to man-
ager, and that Lento also could progress from driver to man-
ager. (Tr. 2:266, 272–273.) Lento agrees that Briggs first
asked about family, but after that Briggs asked what Lento
thought about the Union. Lento said he thought the Union
is good. (Tr. 1:34, 67–68.) Briggs concedes this much and
admits that he asked other employees (presumably those with
whom he rode) the same question. (Tr. 2:266, 272.)
After he responded that the Union is good, Lento testified,
Briggs cautioned him to ‘‘think hard’’ because Briggs would
make changes, that he would raise salaries, and that BFI
would try to cut the workdays from 5 to 4 by adding more
trucks. Briggs added that Lento could move off the truck and
into management. ‘‘Look, I’m not really interested,’’ Lento
replied, saying that he was happy with his work as a driver.
(Tr. 1:34, 68.)
Briggs denies telling Lento he would be given a manage-
ment position if he stopped his union activities. (Tr. 2:267.)
Other than discussing company benefits, such as medical
coverage and retirement, Briggs asserts that he did not dis-
cuss a possible improvement in salaries. He did, however,
discuss an improvement in routes. (Tr. 2:273.)
c. Analysis and conclusions
As mentioned, Thomas Lento is one of the 10 employees
named in the Union’s March 30 letter to the Company as as-
sisting in the organizing campaign. Briggs’ question of
Lento, on what Lento thought of the Union, may have been
silly, but it does not appear to have been unlawful. Lento
was an openly announced supporter of the Union, and he
represented that position to Briggs. Although Briggs asked
other employees the same question (Tr. 2:272), the number
or identity is not given. For all we know, they were the oth-
ers named in the Union’s letter. Accordingly, I shall dismiss
complaint paragraph 6.
The Company defends against the promises allegation on
the basis that Briggs was doing nothing more than
reaffirming what Wynberg had told the employees in June
1989 and already had implemented by pay raises. However,
Wynberg’s announcement and subsequent pay raises were to
employees as a group—a group benefit. Briggs was seeking
685BROWNING-FERRIS INDUSTRIES
to entice Lento with an individual promotion with the impli-
cation he would get it by abandoning his support of the
Union.
Although Wynberg apparently had announced a goal of
equalizing routes, there is no evidence that any specific pro-
gram ever was adopted, much less announced. Nearly a year
had passed. As Lento testified, some things Wynberg men-
tioned were never implemented. (Tr. 1:65–66.) In the context
of the inquiry about the Union, Briggs’ statements about add-
ing trucks and reducing the workload must be viewed as an
inducement to abandon support of the Union. Even though
in June 1989 Wynberg had announced a goal of increasing
the pay, Briggs’ mention to Lento of raising salaries would
naturally tend to suggest an individual increase for Lento,
and any others forsaking the Union, or else a link between
what the employees must now do if they were to receive the
future increases Wynberg had mentioned months earlier. In
these circumstances, finding merit to complaint paragraph 7,
I further find that the Company violated Section 8(a)(1) of
the Act, as alleged.
3. April 11, 1990, by Larry Wynberg
a. Allegation
Complaint paragraph 9 alleges that about April 11 Larry
Wynberg ‘‘impliedly threatened to discharge employees be-
cause of their support of and activities on behalf of the
Union.’’ Thomas Lento testified in support of this allegation.
b. Description postponed
Because the facts of this conversation are part of the
events of Lento’s alleged termination, I defer the summary
until my description of the termination allegation.
C. Allegations of 8(a)(3) Discrimination
1. Robert Giarrusso
a. Allegations
Complaint paragraph 11 alleges, and the Company admits,
that about March 12 the Company, by Charles Canady,
issued a written disciplinary warning to Robert Giarrusso.
The question is whether, as alleged in paragraph 13, the
Company did so because of Giarrusso’s union activities.
Complaint paragraph 12(b) alleges that about March 12
the Company ‘‘discharged and/or constructively discharged’’
Giarrusso. the Company denies the allegation.
b. Facts
The week of Monday, February 26, 1990, Robert
Giarrusso was on vacation, returning to work Monday,
March 5. At the hearing Giarrusso recalled that his vacation
was the week of March 5, returning March 12. (Tr. 1:101–
102, 112.) That is consistent with his April 18 pretrial affi-
davit. (Tr. 1:116–117.) Testifying that Giarrusso’s vacation
began in late February (Tr. 2:228), Shop Maintenance Man-
ager Canady identified a timecard (R. Exh. 15), showing
‘‘On Vacation’’ the week ending Saturday, March 3, as
Giarrusso’s. (Tr. 2:238–240.) I find that Giarrusso’s vacation
was the week of Monday, February 26.
Giarrusso acknowledges that before he left for vacation he
had been working with certain 5-gallon cans of paint and that
Canady had instructed him to store them before he left for
vacation. Giarrusso asserts that he put them in his storage bin
before leaving for his vacation. (Tr. 1:107–108.)
Canady testified that Giarrusso had been painting con-
tainers, or trash dumpsters. During Giarrusso’s vacation,
Company removed the roof (replacing it, presumably) from
the building which houses the wash and painting bay. Duane
Bote, an employee engaged in the roof removal project, in-
formed Canady that there were some paint supplies inside.
Proceeding to the wash/paint bay, Canady found three 5-gal-
lon paint cans (blue paint, brown paint, and thinner) open,
with some 2 gallons in each, and full of debris and water.
These were the supplies Canady had instructed Giarrusso to
store. (Tr. 2:230–231, 249.)
Backhoe operator Theodore Bell testified that while
Giarrusso was on vacation he observed one 5-gallon can of
paint by the dumpsters Giarrusso had been painting. The lid
was lying on top, but it was not snapped shut. The Company
employs temporary employees hired from a labor pool
source, and Bell has seen labor pool employees painting. Ev-
eryone has access to the area, and labor pool employees
work there sweeping and whatever. During that week Com-
pany had some labor pool employees in the wash/paint bay
area. (Tr. 1:142–148.) Canady denies that the Company hired
any labor pool employees to paint that week. (Tr. 2:255.)
According to Canady, the paint is stored under lock and key
in a separate yard down the street and Canady has the key.
Moreover, Canady testified, Giarrusso did not store paint at
some different location. (Tr. 2:250.)
To the Company, Bell’s testimony about seeing the can of
paint corroborates Canady’s testimony of damaged paint sup-
plies. (Br. 7, 24.) General Counsel appears to suggest (Br.
13) that the single paint can, even if left by Giarrusso, was
seized on and multiplied by the Company as a pretext for
creating the documentation preliminary to an unlawfully mo-
tivated discharge.
When Giarrusso returned to work on Monday, March 5, he
was notified to report to Canady. When Giarrusso was seated
in Canady’s office, Canady gave him a written warning to
read and sign. (Tr. 1:103; 2:235.) After reading the warning,
Giarrusso testified, he exclaimed: ‘‘I’m not signing it. It’s
false.’’ Canady responded, ‘‘If you don’t sign it, you’re
fired.’’ After telling Canady to ‘‘shove it,’’ Giarrusso rose,
went to the parking lot, got in his car, and drove to the of-
fice. As Giarrusso was ascending the stairs to Wynberg’s of-
fice, Canady was descending. Canady, Giarrusso testified,
laughed in Giarrusso’s face as they passed. Finding
Wynberg, with Norman James present, Giarrusso asked if he
could speak with them and if they knew what had happened.
They ignored him, Giarrusso testified. Telling them they
needed to grow up, Giarrusso departed and apparently has
not returned. In Giarrusso’s opinion the warning was a
‘‘setup because of my union activities prior to coming to
Cape Coral Disposal and BFI.’’ (Tr. 1:102–104.)
Canady asserts that Giarrusso, in crude language, asked
what was going on and what were Canady and Wynberg try-
686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 On cross-examination, Canady concedes that his May 22 pretrial
affidavit, which covers the conversation, does not quote Giarrusso as
saying anything about Wynberg. (Tr. 2:252, 254.)
6 On rebuttal Giarrusso denies telling anyone that he was quitting.
(Tr. 2:236.)
7 Although the record does not show that Giarrusso had the nick-
name ‘‘Russo,’’ it is a natural shortening of his name. I find that
‘‘Russo’’ refers to Giarrusso.
ing to do,5 that he was tired of this and that he quit.6 Point-
ing out that it was only a written warning, Canady told
Giarrusso there was no reason for him to get carried away.
Giarrusso refused to sign, got up, and left. At no time, ac-
cording to Canady, did he tell Giarrusso that if he refused
to sign he would be terminated. (Tr. 2:235, 250.) To the ex-
tent the versions differ, such as with the threat of discharge
for refusal to sign, I credit Giarrusso who testified persua-
sively in contrast with Canady.
Perhaps because he neither signed nor waited around,
Giarrusso did not receive a copy of the warning. ( Tr.1:105.)
Canady identified (Tr. 2:231–234) the following as the warn-
ing (R. Exh. 10), and Giarrusso concedes that it could be.
(Tr. 1:113.) I find it to be the one tendered that March 5 to
Giarrusso. Dated March 5, and referencing Giarrusso, the
‘‘offense’’ text reads:
Instructed to put paint and supplies back into proper
places. Found that employee failed to do what he was
instructed to do. Employee was instructed approx 1
week prior to his vacation. Paint and supplies are still
not put up. Due to the fact of being left out over ex-
panded period of time with items open and being in the
weather, items are now no good for use.
For course of action, Canady wrote, ‘‘First warning. Sec-
ond warning may be grounds for termination.’’ Canady
signed over the date of ‘‘3–5–90.’’ Later Canady added,
‘‘After the reading of this notice employee terminated him-
self.’’ (Tr. 2:233.)
Canady testified that (in calling Giarrusso in for the warn-
ing) he did not intend to terminate Giarrusso. According to
Canady, he had no knowledge that Giarrusso was involved
in any union activity. (Tr. 2:242.)
According to Wynberg, when Giarrusso came to his office
Giarrusso told James that he liked him but was not going to
put up with this ‘‘bullshit’’ and was quitting. As Giarrusso
started to leave, Wynberg said, ‘‘Bob, what’s the problem?
Can we sit and talk about this?’’ ‘‘No,’’ replied Giarrusso,
‘‘you guys need to grow up, and I’m not going to work
here.’’ At that point Giarrusso left. (Tr. 2:318–319.)
Giarrusso denies telling Wynberg or anyone that he was quit-
ting, and testified that he was unable to find work until Octo-
ber, depending on loans to survive. (Tr. 2:336–337.) As
Giarrusso testified persuasively, and Wynberg unper-
suasively, I credit Giarrusso’s version that Wynberg and
James ignored him. I find Wynberg’s stilted and phony-ring
version to be a blatant fabrication.
From Roger Edwards’ (Briggs’ predecessor) February 12
remark-question to Giarrusso, we know that the Company
had learned of the February 10 union meeting and, based on
its awareness of Giarrusso’s background with the Teamsters,
obviously had concluded (erroneously) that Giarrusso was re-
sponsible for the union meeting and activity. Second,
Giarrusso’s uncontradicted testimony, which I credit, is that
before February 10 Company Manager Norman James, who
knew Giarrusso had been a member of Teamsters Local 560,
would joke with Giarrusso about union members. That banter
abruptly stopped after the February 10 union meeting. In
short, with Company itself now being organized, manage-
ment no longer considered unions something to joke about.
On Tuesday, February 27, the second day of Giarrusso’s
vacation, the Union filed its representation election petition
in Case 12–RC–7265. Although the record does not contain
a copy of NLRB Region 12’s notification letter transmitting
a copy of the petition to Company, I officially note that
Agency procedure specifies that such notification is to be
sent to the employer ‘‘immediately.’’ Casehandling Manual
(Part Two) ULP, section 11008 (Sept. 1989). See McGuiness
& Norris, How to Take a Case Before the NLRB 96 (5th ed.
l986), BNA. The presumption is that the government agency
followed its published operating procedures. Assuming that
the notification was mailed to the Company no later than
Wednesday (and probably the same Tuesday filing day), I
further find that in the due course of the mail the Company
easily would have received the notice by Friday, March 2,
and probably by Thursday, March 1. That brings this sum-
mary to the testimony of Billy Ray Dickey.
A welder for Company from 1980 until he quit in April
1991 (Tr. 1:121–122, 125), Dickey describes a conversation
he had with then Operations Manager Edwards on either
Wednesday or Thursday of the week Giarrusso was on vaca-
tion. Although Dickey places the date as March 7 or 8 based
on his recollection that Giarrusso returned from vacation on
March 12 (Tr. 1:122, 126, 129, 131), he concedes that the
date could have been a week earlier. (Tr. 1:131.) The two
things Dickey does remember are, first, that the conversation
occurred either Wednesday or Thursday, and probably Thurs-
day (March 1), of the week that Giarrusso was on vacation
(Tr. 1:132–133), and, second, what Edwards said. I find that
the date was Thursday, March 1, 1990.
Dickey asserts that Edwards, with whom he was on friend-
ly terms (Tr. 1:124), spoke to him in the welding shop about
3:30 p.m. that Thursday. Edwards said he would have to get
up early the next day (Friday) because it looked as if there
would be a picket line at the Company the next morning. ‘‘I
have to go home and get my .45 and come back out here
to keep these trucks rolling.’’ Edwards added that, ‘‘If it
hadn’t been for Bob Russo,’’ there would be no union prob-
lem.7 But, Edwards continued, ‘‘we’re going to get rid of
him anyhow when he gets back off vacation.’’ The conversa-
tion ended with Dickey cautioning Edwards to be careful be-
cause pickets had a legal right to walk in the street and Ed-
wards replying that the trucks were going to roll. (Tr. 1:123,
133.) Dickey thought it strange that any picketing would
begin on a Friday. (Tr. 1:132–133.) No picketing occurred
then or later. (Tr. 1:132–133.) Theodore Bell overheard part
of the conversation when Edwards stated that the trucks were
going to roll. (Tr. 1:138–139.)
Crediting Dickey and Bell, I find that Edwards spoke as
Dickey reports. Edwards’ reference to Bob ‘‘Russo’’ is am-
biguous because it can be interpreted in either of two ways.
First, it could mean that the Company was going to get rid
of Giarrusso because of its suspicion that he, as a longtime
Teamsters member, had brought the Teamsters to the Com-
687BROWNING-FERRIS INDUSTRIES
pany and that the Company had found a pretext to justify
discharging Giarrusso. Second, the remark could mean no
more than that Giarrusso had committed a major error for
which he would have to be discharged. A third possibility,
a layoff based on economic considerations, does not seem
implied by the ‘‘get rid of’’ language.
Despite the surface ambiguity in Edwards’ threat, I find
that the union-motive interpretation is the correct one. First,
as Edwards was outside Canady’s department, and they were
not on good speaking terms anyhow (Tr. 2:241), it means
that there was some discussion among management (includ-
ing Wynberg and James) about Giarrusso. Second, the
‘‘we’re going to get rid of him’’ threat reveals a plan by
management to discharge Giarrusso. As we know, Canady
gave Giarrusso a written warning, not a termination slip. But
a written warning is consistent with a scheme to provide a
documented pretext for discharge. Although, as Giarrusso
testified (Tr. 1:104, 114), the Cape Coral district and prede-
cessor company had not previously used written warnings, in
the Fort Myers District, which Wynberg had been managing
for BFI since January 1986 (Tr. 2:231), written ‘‘Employee
Action Notification’’ forms (R. Exhs. 18–21) were used.
Finally, Edwards’ discharge threat came immediately after
he had named Giarrusso as the source of the union orga-
nizing. Although the two remarks are not necessarily cause
and effect, they are consistent with cause and effect. In light
of the context and all the circumstances, I find that the
cause-effect link is the correct explanation. Thus, I find that
on March 1, 1990, the Company, through Edwards, revealed
to welder Dickey that the Company planned to discharge
Giarrusso because it suspected he was responsible for union
activity among its Cape Coral employees. I do not find Ed-
wards’ threat to be an unfair labor practice because the com-
plaint does not allege the threat to be unlawful.
Canady supervised eight employees. He concedes that the
written warning which he gave Giarrusso was the first writ-
ten warning he had ever issued. (Tr. 2:246.) The Cape Coral
‘‘Company Policy’’ rules (R. Exh. 17), which Giarrusso ap-
parently signed at his May 10, 1988 hiring (Tr. 2:296), most-
ly pertain to drivers and contain nothing about warnings or
a disciplinary system, other than advising that a violation
will subject the employee to termination.
Wynberg testified that when he met with the Cape Coral
employees at a company barbeque following BFI’s acquisi-
tion of Cape Coral, he told them, among other things, that
BFI would keep Cape Coral’s work rules, because they
closely mirrored BFI’s, and simply add to them while con-
temporaneously notifying the employees of any additions or
changes. (Tr. 2:290, 293–294.) BFI policies that Giarrusso
(and presumably the others) signed after the acquisition, per-
tain to safety. (R. Exhs. 8, 9.) Although referring generally
to disciplinary action for violating a safety rule, no descrip-
tion of any disciplinary system is stated.
Despite the absence of any reference in the written policies
to a disciplinary system, Canady testified that a supervisor
first gives ‘‘verbal’’ (oral) warnings and then written warn-
ings. (Tr. 2:247, 256.) These oral warnings are disciplinary,
Canady testified. (Tr. 2:258.) Indeed, according to Canady,
before the March 5 written warning to Giarrusso, Canady
twice had orally warned Giarrusso. The first incident oc-
curred in 1989 when Giarrusso was failing to clean the
trucks properly and refusing to clean the undercarriages. (Tr.
2:256–257.) The second, in January 1990, involved a radio.
On cross-examination, Giarrusso was not asked about the
truck-washing warning, nor did the General Counsel ask
when calling Giarrusso as a rebuttal witness. Although I find
Canady as a less-than-credible witness, I accept his
uncontradicted testimony to the extent that in 1989 he orally
reprimanded Giarrusso concerning his truck-washing job per-
formance.
In the January incident, Canady instructed Giarrusso to re-
move certain items, including a radio, from a rental trailer
before the Company returned the trailer. (Tr. 2:222–223,
248.) Giarrusso acknowledges this. (Tr. 1:114.) According to
Canady, Giarrusso failed to remove the items and when Can-
ady finally got the radio and other items back they were use-
less, having been severely damaged in a fire that burned the
rental trailer. When Canady informed Giarrusso of the fire
destruction, Giarrusso supposedly shrugged it off with, ‘‘Oh,
well.’’ (Tr. 2:223–227.) Asked about this on cross-examina-
tion, Giarrusso denied the accusation, stating that he did re-
move the radio and other items, and agrees (in response to
a question) that a ‘‘Company official’’ testifying otherwise
would be lying. Giarrusso asserts that he knows nothing
about a burned radio. (Tr. 1:115.)
Initially on cross-examination Canady testified that
Giarrusso had received no disciplinary action by leaving the
articles on the trailer. (Tr. 2:247.) Later, he classified this as
one of the two oral warnings preliminary to a written warn-
ing (Tr. 2:256), concluding by declaring that oral warnings
are considered a form of disciplinary action. (Tr. 2:258.) Re-
call that the written warning itself states that it is the first
warning. Although the General Counsel describes these state-
ments as changes by Canady in his testimony (Br. at 5–6),
I note the possibility that Canady, when first asserting that
Giarrusso received no disciplinary action for leaving the
radio and other items on the rental trailer (Tr. 2:247), could
have meant Giarrusso received no written warning.
In any event, I credit Giarrusso. Thus, I find that at the
hearing Canady in bad faith sought to establish that
Giarrusso had failed to remove the radio and other items
knowing that Giarrusso had removed the items. Whatever
burned radio Canady displayed at the hearing (Tr. 2:225–
226), I find that it was not the radio which Canady asked
Giarrusso to remove from a trailer in January 1990.
One final factual point remains for mention. On the Friday
during his vacation, that is, on Friday, March 2, Giarrusso
returned to Cape Coral to get his paycheck. While there he
spoke with Canady who told Giarrusso his new hours would
begin and end later in the day. (Tr. 1:101–102.) When later
taking the stand, Canady did not challenge Giarrusso’s testi-
mony on this. Thus, although Canady implies that it was
early that week when the paint supplies were discovered ex-
posed to the roof debris and then to the weather, on Friday
of that week he said nothing about it to Giarrusso when they
talked. Nevertheless, I attach no weight to this because, as
I have found the day before, March 1, Edwards revealed to
Dickey that the Company planned to fire Giarrusso when he
returned from vacation. For whatever reason, on Friday,
March 2, Canady elected not to mention the ruined paint to
Giarrusso, reserving that as a surprise for Monday, March 5.
Turning now to the March 5 warning, I observe, first, that
Canady, failing to ask Giarrusso for an explanation, simply
presented Giarrusso with a fait accompli. Second, there is no
688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
designated space for an employee’s signature. Third, there is
no industrial due process language that by signing the em-
ployee simply is acknowledging that he has read and under-
stands (and does not admit guilt). Nor is there any designated
section for remarks where the employee can write his
version, denial, or protest. Contrast these omissions with
those standard fairness provisions present with the warning
form in Interlink Cable Systems, 285 NLRB 304, 306–307
(1987).
Considering all the circumstances, I find that Company
fabricated the paint damage. Either the damage never hap-
pened, or if did the Company planted the open cans of paint
there (possibly including the can Bell observed) knowing full
well the paint would be contaminated by the falling debris
when workers tore off the roof, all as a fraudulent pretext for
initiating the steps to discharge Giarrusso. Company did this,
I find, because it suspected Giarrusso was responsible for the
union meeting of February 10, 1990, at the Jaycees’ park.
The first step was to be a written warning. When Giarrusso
recoiled at the instruction to sign what Giarrusso recognized
as a lie, Canady seized the opportunity to impose a Hobson’s
choice: Sign (the lie) or be fired.
Rather than sign a lie, one serving notice that the next
misstep (pretext) may be grounds for termination, Giarrusso
left. Whether Giarrusso intended from that moment to appeal
to Wynberg, or thought of that after reaching his car, is not
specified in the record. But when Giarrusso appealed to
Wynberg (after Canady laughed in Giarrusso’s face when
they passed on the stairs), Wynberg and James ignored him,
as if pretending Giarrusso did not even exist.
c. Analysis and conclusions
Company argues that Canady had no knowledge of
Giarrusso’s past or present union activities. That knowledge,
I find, came through James and Wynberg. The February 12
interrogation by Edwards reveals that Company’s manage-
ment had quickly learned of the February 10 union meeting.
Given the obvious discussion among management about it
and Giarrusso, and the absence of any evidence that Re-
spondent had excluded Canady from its discussion of one of
Canady’s employees, I infer that Canady was told what
Company had learned and what it suspected. I also infer
knowledge from the pretextual nature of Giarrusso’s dis-
charge. Under established Board law the same set of cir-
cumstances may be relied on to support both an inference of
knowledge and an inference of discrimination. A. J. Ross Lo-
gistics, 283 NLRB 410, 414 (1987).
As I have found, the March 5 written warning was unlaw-
fully motivated. Recognizing the written warning (presented
as a fait accompli) as a fraudulent attempt to penalize him
for his union activities and to set him up for a future dis-
charge, Giarrusso rejected Canady’s command to sign or be
fired. Canady’s instruction was an implied command to
choose either union activity or continued employment. This
Hobson’s choice constitutes a constructive discharge under
the Act. See NLRB v. CER, 762 F.2d 482 (5th Cir. 1985),
enfg. 269 NLRB 1070 (1984). See also Control Services, 303
NLRB 481, 484 (1991).
Citing Interlink Cable Systems, 285 NLRB 304 (1986),
Company argues that an employee’s refusal to sign a dis-
ciplinary warning is unprotected activity for which the em-
ployee may be discharged. Unlike here, in Interlink the warn-
ing was not alleged to be unlawfully motivated. Interlink is
not apposite.
The Board classifies ‘‘set-up’’ terminations as discharges
rather than constructive discharges, but, in either event,
threats both as 8(a)(3) violations. Reno Hilton, 282 NLRB
819, 836 fn. 39 (1987). By the terms of Canady’s order,
Giarrusso’s discharge followed from his failure to sign the
warning. At least Giarrusso reasonably would have believed
he was fired when he refused to sign and left. Canady at first
wrote that Giarrusso had ‘‘terminated himself,’’ later writing
on the timecard that Giarrusso had ‘‘Quit.’’
I find that by terminating Giarrusso on March 5, 1990, the
Company violated Section 8(a)(3) of the Act, as alleged. I
shall order the Company to offer Giarrusso full and imme-
diate reinstatement and to make him whole, with interest.
2. Thomas Lento
a. Introduction
Complaint paragraph 12(c) alleges that the Company, by
Larry Wynberg, discharged Thomas Lento about April 11.
Denying the allegation in its answer, the Company’s position
expressed at the hearing and on brief is that Lento was termi-
nated for nondiscriminatory reasons. An April 12 letter from
Operations Manager Briggs, confirming Lento’s termination
the day before, reads (G.C. Exh. 8; Tr. 1:41–42):
On Tuesday, April 10, 1990 you did not complete
your daily route, you said you were tired and did not
like to throw garbage. This is no excuse, this is a gar-
bage company and from time to time we all have to
throw garbage.
Your attitude toward Marilyn and the company was
unacceptable. We will not tolerate our employees tell-
ing us what they will and will not do, especially in
front of other employees.
Per your conversation with Marilyn the company
feels that you voluntarily quit. You came into the office
and told Marilyn that you would not throw any more
garbage. You also did not dump your truck, complete
your paperwork or punch out for the day.
As of April 11, 1990 your employment with BFI
Waste Systems is terminated. You may receive your
last check when all company keys, uniforms, gloves
etc. . . . are turned in.
b. Facts
(1) April 10, 1990
The events giving rise to Lento’s discharge occurred April
10, a Tuesday. Recall that a few days earlier the Company
had received the Union’s letter (G.C. Exh. 5) announcing the
names of 10 of the Union’s supporters, with Lento’s name
heading the list.
On April 10, as he had for the past several days, Timothy
Blackburn was riding with Lento in order to learn the route
and its larger truck. (Tr. 2:201–202, 207.) Blackburn had ap-
plied for transfer to the Company’s Fort Myers Beach recy-
cling plant where his wife works. By the time of the hearing,
he apparently had made the transfer. (Tr. 2:207–208.) The
witnesses dispute the key events, with Lento opposed by
Blackburn, dispatcher Marilyn Richardson, Route Supervisor
689BROWNING-FERRIS INDUSTRIES
J. Robert Tillman, and Shop Maintenance Supervisor Charles
Canady. A brief summary of their testimony appears below.
References below to VCR reports (vehicle condition re-
ports) require some explanation. This form (R. Exh. 4) has
three main sections. One is a pretrip inspection list where the
driver checks off 14 items as being in proper working order
or with any defects noted below. In a designated space the
driver signs and dates the pretrip inspection section. The sec-
ond section is a posttrip inspection report covering the same
items, also with a space for the driver to sign and date. The
third section, which covers most of the bottom half of the
form, consists of boxes for noting vehicle defects or damage.
The Company’s written policy (R. Exh. 3) states that dis-
ciplinary action ‘‘will be taken’’ for any failure to complete
VCR reports. Lento was aware of this policy and that the
driver is to fill out the VCRs. (Tr. 1:49–50.) The April 10
VCR for Lento’s vehicle has only the pretrip inspection por-
tion completed and signed by Lento. The posttrip inspection
is untouched. (R. Exh. 4.) Lento explains that as the driver
he normally filled out the VCR. On April 10 he did the
pretrip portion because he thought he would be driving. Be-
cause he later (as we shall see) was told to let Timothy
Blackburn drive, Lento did not fill out the posttrip inspection
portion. (Tr. 1:53, 78.)
Blackburn testified that on April 9 he advised Tillman that
he needed to leave early the afternoon of April 10 because
he had to appear in court. (Tr. 2:203, 205.) As Blackburn
and Lento pulled into the yard in the early afternoon after
work on April 10, Blackburn informed Lento that he had to
leave then. (Tr. 2:203.) Blackburn denies that he was sched-
uled to take his DOT driving test that April 10 (Tr. 2:202),
explaining that he took that test of May 28, 1990, after his
1989 medical and written examinations. (Tr. 2:211.) Al-
though he searched, Blackburn could not find his court pa-
pers. (Tr. 2:204–205.) No party offered evidence of any con-
tact with the clerk’s office at the courthouse for the purpose
of locating the case number and papers Blackburn was refer-
ring to.
Blackburn confirms that about 3 weeks after Lento’s dis-
charge he, Blackburn, gave a written statement to a company
official. In his pretrial statement Blackburn reports that on
April 10 he clocked out at 1:23 p.m., and that it was after
he and Lento had returned to the yard that day (April 10)
that he asked Tillman if he could be excused from accom-
panying Lento to the landfill to dump the truck. Tillman ex-
cused him when Blackburn explained that he had to meet
with his lawyer regarding certain child support matters. (Tr.
2:215–216.)
Tillman denies telling Lento in the morning that Blackburn
would be taking his DOT driving test that afternoon. Accord-
ing to Tillman, he had no reason to say that because he
thought Blackburn already was certified, although he con-
cedes he had no information that Blackburn was certified.
(Tr. 2:176–177, 190.) When Lento and Blackburn returned
around 1 p.m., Tillman testified, he told Lento to empty the
truck. They were standing by the door to the office. Tillman
told Lento to dump the truck because he knew that
Blackburn had to leave for a court appointment. (Tr. 2:177–
178, 190, 192.)
Richardson testified that she overheard Tillman tell Lento
to take the truck to the landfill. Lento said nothing, and
walked into the dispatch office while Tillman left on a busi-
ness errand. (Tr. 2:159, 162, 164–165.) Acconding to Rich-
ardson, Lento came in and stood by her desk for a moment.
Richardson asked Lento if he had taken his truck to the land-
fill. She knew Lento had not done so, it being only seconds
after the conversation she overheard, but Lento had his time-
card in his hand and it appeared Lento was not going to
comply with Tillman’s instruction. Lento replied, ‘‘This is
bullshit. I don’t have to take the truck to the landfill. I ain’t
taking that truck.’’ Lento added that he had been the helper
throwing the trash and it was not his responsibility to drive
the truck to the landfill. Richardson told Lento that he had
to do so because Blackburn had to leave, the truck has to
be dumped, and that ‘‘Jay’’ (Tillman) had told him to take
the truck. Angry, Lento walked out. A few minutes later
Richardson radioed Tillman to report that Lento was refusing
to dump his truck. From that point Tillman handled the mat-
ter. (Tr. 2:158–169.)
Tillman returned to the yard, found the loaded truck, saw
that Lento was gone, and observed that Lento’s timecard (R.
Exh. 7) had not been punched out. Tillman reported these
matters to Operations Manager Briggs. (Tr. 2:178, 192–194.)
Canady testified that about midafternoon Lento, looking
depressed, came into his office and sat down. Canady and
Carter Goodman (Route Supervisor Eddie Carter Goodman
Jr.), who was present, asked Lento what was wrong. Lento
said he was tired of driving and was not going to the landfill.
Lento then rose and left. Afterwards Canady, in the course
of his duties, discovered that the VCR had not been sub-
mitted. Locating the VCR in the truck, Canady discovered
(the incomplete) RX 4 and observed that the truck had not
been dumped. (Tr. 2:242–245.) In a pretrial statement of
May 20, 1990, Canady states that Lento said ‘‘I’m tired of
throwing garbage.’’ Claiming that his mind was not straight
at the time because ‘‘so many things were happening,’’ Can-
ady asserts that the ‘‘throwing garbage’’ words are incorrect
and that the quote should read, ‘‘I’m tired of driving.’’ (Tr.
2:251–253.)
Goodman, when called by the Company, briefly testified
about one point on direct examination, that he was not
scheduled to take Blackburn for his DOT road test on April
10. (Tr. 2:218.) He was not asked about what Lento said in
Canady’s office on April 10. On cross-examination Goodman
declared that in March—April 1990 he was unaware of any
union organizing campaign at the Cape Coral facility. (Tr.
2:219.)
Lento testified that Blackburn drove all day while he,
Lento, pitched the trash (Tr. 1:33, 37, 51, 61, 79, 81), that
he did not take the truck to the landfill because both
Blackburn (Tr. 1:54, 61, 82–83) and Route Supervisor Till-
man (Tr. 1:63–64, 81) told him that Blackburn would take
his DOT (Department of Transportation) road test that after-
noon, and that he did not complete the paperwork because
the driver does so and he, Lento, did not drive. (Tr. 1:37,
51.) Lento denies that Tillman told him to take the truck to
the landfill (Tr. 1:58–59), and denies that Richardson re-
minded him of Tillman’s instruction that he take the truck
to the landfill because Blackburn had left for a court setting.
(Tr. 1:59.) Lento recalls that it was a day earlier when
Blackburn left early for a court appointment. (Tr. 1:54, 83.)
Lento testified that on returning to the yard he went inside
the dispatch office where he asked dispatcher Richardson if
Larry Wynberg or David Briggs was in, that he wanted to
690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
talk with one. Apparently hot and dirty, Lento was perspiring
from his work that day. ‘‘What’s the problem, Tom?’’ Rich-
ardson inquired. Lento replied, ‘‘I can’t take throwing trash
anymore. I’d like to talk to them about it.’’ When Richard-
son informed him that neither was in, Lento left and, after
washing up, he ‘‘hung around’’ for awhile. (Tr. 1:59, 80.)
(According to his April 18 pretrial affidavit, R. Exh. 5, Lento
remained at the shop for about 30 minutes. Tr. 1:53.)
Lento testified that when he and Blackburn completed
their work that day Blackburn stated that he was going for
his DOT driving test. Lento (apparently during the half hour
he ‘‘hung around’’ at the shop) observed that Carter Good-
man was sitting in the shop. (Tr. 1:59, 80–83.) Indeed, Lento
asserts that Goodman was in the shop ‘‘all day’’ waiting to
take Blackburn to the landfill as the driving test. (Tr. 1:63.)
Acknowledging that a driver must be DOT certified to take
a truck to the landfill, and that he knew Blackburn was not
so certified, Lento asserts that the requirement was to be met
by Supervisor Goodman’s accompanying Blackburn there as
Blackburn’s DOT driving test. (Tr. 1:62–63.) Driver Donald
Stahl testified that after Lento was terminated Blackburn
took over Lento’s route. (Tr. 2:333–334.) Presumably that
means Blackburn also took the truck to the landfill, although
Stahl did not expressly so testify.
On April 10 Operations Manager Briggs wrote on the re-
verse side of Lento’s attendance card (Tr. 2:275–277, 342–
343):
Tom did not complete route or paperwork for the
day. Also complained about throwing garbage to
Marilyn and said he was not going to do it any more.
Voluntarily quit. D.B.
After his employment ended at the Company, Lento filed
a claim for unemployment compensation. The record does
not disclose the date of filing. Apparently the Company con-
tested the claim, for on May 7 Lento signed (Tr.1:56) a ‘‘re-
buttal’’ statement (R Exh. 6), taken by the Florida agency,
reading:
I worked as a driver for B.F.I. of Cape Coral from
6–1–89 thru 4–10–90.
I did not tell the dispatcher that I wasn’t going to
throw any more garbage. I told the dispatcher I wanted
to see Larry Weinberg, dist. mgr. & David Briggs,
oper. mgr., about throwing garbage & staying on the
back of the truck since I had been hired as a driver. I
didn’t dump the truck because I wasn’t the driver. The
driver was Tim Blackburn. He didn’t dump it because
Carter, supv., told him to park the truck & go home.
This was all a set-up to get at me because I organized
a union. I could have sworn I punched out, but Larry
wouldn’t give me the timecard to see. I didn’t do the
paperwork because that’s the driver’s responsibility.
Respecting the information that Route Supervisor Carter
Goodman told Blackburn to park the truck and go home (in-
formation not given by Lento in his earlier pretrial affidavit),
Lento explains that employee Gus Sardinas reported that fact
to him after Lento had given his April 18 pretrial affidavit.
(Tr. 1:57, 85–90.)
(2) April 11, 1990
Following a drivers’ meeting the early morning of April
11, District Manager Larry Wynberg and Operations Man-
ager David Briggs met with driver Lento in the
dispatch/front office. Lento had not been able to punch in be-
cause Wynberg had his timecard. (Tr. 1:35–36; 2:278, 302.)
Wynberg testified that he already had received a preliminary
report, including Lento’s timecard, from Briggs concerning
the events of the previous day. (Tr. 2:328–329.)
Lento testified that Wynberg began their meeting by stat-
ing (Tr. 1:36):
Tom Lento, what are we going to do with Tom
Lento? He didn’t punch his timecard in. He didn’t
dump his truck. And he didn’t fill out his dirver’s
sheet. I guess he walked off the job.
Even if he did not punch out, Lento replied, it was not the
first time he had made that mistake, and previously the
morning supervisor would mark it with a pen and punch it
himself when the drivers forgot. (Tr. 1:36–37.) (Lento testi-
fied that Supervisor Tillman had done so as had Roger Ed-
wards, the former operations manager, with Edwards adding
a curt reminder not to let it happen again. Tr. 1:75–77.) Con-
tinuing, Lento said the reason he did not dump the truck or
complete the paperwork is that he did not drive that day. (Tr.
1:37.)
At that point Wynberg switched subjects to the Union, re-
marking that ever since ‘‘this union thing’’ Lento had been
a problem to the Company whereas Lento had never before
been a problem. Employees, Wynberg stated, are com-
plaining that he was scaring them; that Lento was handing
out paperwork to the employees (Lento distributed union
campaign literature, Tr.1:40–41); and that Lento was costing
the Company a lot of money by trying to form a union. Why
was Wynberg pointing at him, Lento asked, when there are
more involved than just him. (Tr. 1:37.)
Wynberg then asked, ‘‘Do you believe in BFI or do you
believe in the Union?’’ Lento answered that he did not be-
lieve in BFI and at that point did not even believe in the
Union because he did not know which was lying (an appar-
ent reference to campaign propaganda by both sides), but he
had been a union member for 6 years and liked the idea of
a union. Wynberg then stated (Tr. 1:38): ‘‘Well, if you be-
lieve in the Union, you can’t be trusted with BFI.’’
Earlier, I postponed discussion of complaint paragraph 9
which alleges an April 11 discharge threat by Wynberg. In
the Government’s posthearing brief, the General Counsel
does not pause to enlighten me on what statement the Gov-
ernment contends supports the allegation, merely asserting
that Wynberg’s remarks to Lento during their early morning
meeting that day violated Section 8(a)(1). (Br. 20.) The state-
ment quoted above apparently is the support for the allega-
tion.
Wynberg told Lento to call him at 2 p.m. that day and he
would give him a decision on whether Lento could return to
work. Wynberg said that he might hurt himself if he let
Lento go (discharged him), or he could be better off by ter-
minating Lento. Lento replied that he would come back at
2 p.m. to receive the decision in person. (Tr. 1:38.)
Around 2 p.m. that day, Lento returned and asked
Wynberg if he could punch in the following day. Wynberg
691BROWNING-FERRIS INDUSTRIES
said that Lento already knew the answer because he had
called Wynberg’s boss. Not so, replied Lento. ‘‘You no
longer work here,’’ Wynberg told Lento. When Lento then
asked for his paycheck, Wynberg told him to come back Fri-
day with his uniforms and material that belong to the Com-
pany and that he would be paid whatever he was owed.
Lento testified that he did not call Wynberg’s boss, has no
idea who is Wynberg’s superior, and called no one. On
cross-examination Lento concedes that he does not know
whether he had his uniforms with him when he returned that
afternoon. (Tr. 1:39, 71–73.)
Wynberg (Tr. 2:303) and Briggs (Tr. 2:268) testified that
it was Lento who began the meeting by stating: ‘‘I guess
you’ve got me by the balls. I didn’t complete my paperwork
or punch out or dump the truck.’’ Wynberg’s version has
Lento adding, ‘‘I take it that your’re going to terminate me.’’
(Tr. 2:303.)
Briggs and Wynberg responded by telling Lento that the
Company could not have employees failing or refusing to
follow instructions. Wynberg said he had not made a deci-
sion to terminate Lento, and he needed to look at a few more
of the facts. If, however, Lento had refused to dump the
truck, finish his paperwork, and punch out, then Wynberg
felt that was cause for termination and that Lento, by defying
authority, had walked off the job and quit. The meeting con-
cluded with a 2 p.m. appointment. Briggs denies that
Wynberg mentioned union activities. (Tr. 2:268–269, 303–
304.)
On-cross examination, Wynberg testifed that later in the
morning meeting he asked Lento if he had anything to add.
Conceding his awareness that Lento favored the Union,
Wynberg denies that Lento’s union activities were men-
tioned. He asserts, however, that Lento said, ‘‘I know you
are firing me because of the Union,’’ which Wynberg then
denied, telling Lento they would not discuss the Union be-
cause it had nothing to do with the case. (Tr. 2:329–330.)
Following the early morning meeting with Lento, Wynberg
began collecting the facts, speaking with the dispatcher and
the supervisors. Because of Lento’s union connection, and to
avoid putting the Company at legal risk, Wynberg, with
Briggs present, telephoned his superior in Atlanta, Neil
Clark, for consultation. At the conclusion of his investiga-
tion, Wynberg decided to terminate Lento. (Tr. 2:273, 304–
306.) For Wynberg, the deciding factor was Supervisor Till-
man’s report, supported by evidence from dispatcher Rich-
ardson and Supervisor Canady, that Lento had deliberately
disobeyed orders and standing instructions. (Tr. 2:330–332.)
Wynberg testified that the Company terminated three driv-
ers in the Fort Myers’ District, a nonunion setting, for similar
reasons: Robert Birchfield in September 1989; James Boye
in April 1988; and Johnny Goodman in May 1986. Birchfield
walked off the job after expressing a dislike for a work as-
signment (R. Exhs. 18, 19); Boye left the job before com-
pleting the shift (R. Exh. 20) as did Goodman (R. Exh. 21).
(Tr. 2:307–317.)
Briggs (Tr. 2:270) and Wynberg (Tr. 2:306) testified that
Lento was carrying his uniforms when he returned at 2 p.m.
(Briggs does not explain why his April 12 termination letter
to Lento, quoted earlier, refers in the last paragraph to return
of uniforms.) Seeing that, Wynberg ‘‘smiled’’ and ‘‘chuck-
led’’ to himself, thinking Lento must know that he is being
terminated. (Tr. 2:306.) When Lento came in and inquired,
Wynberg informed him that the decision was termination.
Lento asserted that he would be back at work Monday morn-
ing after a couple of calls. (Tr. 2:270–271, 307.)
On rebuttal Lento denied that he intended to quit on April
10 or 11, that during the organizing campaign the union rep-
resentative told him to be careful so as to protect his job,
that Lento’s wife was pregnant, giving birth on April 12 (im-
plying a family need to keep working), and that on April 10
no supervisor told him to go to the landfill. (Tr. 2:339.) Ear-
lier Lento testified that neither Tillman nor dispatcher Rich-
ardson had told him to take the truck to the landfill. (Tr.
1:58–60.)
c. Analysis and conclusions
Arguing that Lento should be credited, the General Coun-
sel contends that Lento’s discharge was pretextual, with the
real reason for Lento’s discharge being exposed by
Wynberg’s April 11 remarks to Lento. Previously not a prob-
lem to Company, Lento now was costing the Company a lot
of money over the Union, and Lento no longer could be
trusted because he believed in the Union. (Br. at 18.)
Countering that Lento should be discredited and its wit-
nesses credited, the Company argues that Lento’s motive for
his odd behavior on April 10 was the fact he had been re-
quired to throw garbage for a substantial portion of the day
and was probably tired of doing so. On returning to the facil-
ity and learning that he also would have to take the truck
to the landfill ‘‘he became extremely upset, believed that it
was unfair, and decided not to take the truck to the landfill
even though he had been ordered to do so by Tillman. Con-
sequently, he refused to fill out the VCR report and decided
not to punch out.’’ (Br. 33.)
Finding Thomas Lento a believable witness, and the Com-
pany’s witnesses unpersuasive, I conclude that the Company
violated Section 8(a)(3) and (1) of the Act by discharging
Lento on April 12, 1990. I shall order the Company to offer
Lento immediate reinstatement and to make him whole, with
interest.
This is not to say that all the evidence can be reconciled
and that no question remains. Nevertheless, Wynberg’s April
11 remarks to Lento reveal the Company’s unlawful motive
in terminating him. I further find that the Company failed to
carry its burden of demonstrating that it would have fired
Lento even in the absence of his union activities. Its reasons
were either fabricated or pretextual. Lento’s failure to punch
out on April 10 was a minor failure warranting no more than
brusque reminders in the past. Regardless of whatever really
happened on April 10 (Lento describes events as a setup in
his employment claim rebuttal), I find that supervisor Till-
man told Lento to let Blackburn drive, that Blackburn drove
the entire shift, that on their return Tillman did not tell Lento
to take the truck to the landfill, and that the Company either
caused Blackburn to leave without completing the driver’s
work tasks, or seized on the deficiencies (incomplete VCR
and truck not dumped) as an opportunity to get rid of a
prominent supporter of the Union.
CONCLUSIONS OF LAW
By interrogations, threats, and disciplinary actions, the
Company has engaged in unfair labor practices affecting
692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
9 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
commerce withing 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
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged em-
ployees, it must offer them reinstatement and make them
whole for any loss of earnings and other benefits, computed
on a quarterly basis from date of discharge to date of proper
offer of reinstatement, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondent, The Cape Coral District of Browning-
Ferris Industries of Florida, Cape Coral, Florids, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating any employee about union
support or union activities.
(b) Promising employees better working conditions, higher
wages, and promotions if they will abandon their support of
and activities of behalf of the Union.
(c) Impliedly threatening employees with discharge be-
cause of their support of and activities on behalf of the
Union.
(d) Issuing written disciplinary warnings to employees be-
cause of their support of and activities on behalf of the
Union.
(e) Discharging or otherwise discriminating against any
employee for supporting Teamsters Local Union No. 79, or
any other union.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Robert Giarrusso and Thomas Lento immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in the rem-
edy section of the decision.
(b) Remove from its files any reference to the unlawful
written warning and the discharge and notify the in writing
that this has been done and that the discipline will not be
used against them in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Cape Coral, Florida facility copies of the
attached notice marked ‘‘Appendix.’’9 Copies of the notice,
on forms provided by the Regional Director for Region 12,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt 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, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT coercively question you about your union
support or activities.
WE WILL NOT promise you better working conditions,
higher wages, and promotions if you will abandon your sup-
port of and activities on behalf of Teamsters Local Union
No. 79, or any other union.
WE WILL NOT impliedly threaten you with discharge be-
cause of your support of and activities on behalf of Team-
sters Local Union No. 79, or any other union.
WE WILL NOT discharge or otherwise discriminate against
any of you for supporting Teamsters Local Union No. 79, or
any other union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
THE CAPE CORAL DISTRICT OF BROWNING-
FERRIS INDUSTRIES OF FLORIDA, INC.