Trumbull Industries

National Labor Relations Board - Board Decisions

Jul 13, 1994

314 N.L.R.B. 360 (N.L.R.B. 1994)

360
314 NLRB No. 66
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.
No exceptions were filed to the judge’s findings in his original de-
cision that the Respondent violated Sec. 8(a)(1) of the Act by solic-
iting employee repudiation of the Union and by threatening employ-
ees with plant closure and job loss if they engaged in protected con-
certed activities.
2 The judge in his original decision inadvertently failed to include
in his recommended Order a provision reflecting his finding that the
Respondent unlawfully threatened employees with plant closure. We
will include the appropriate provision in our Order.
3 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.’’
Ward, Beals & McCarthy, a Division of Trumbull
Industries and Robert J. Mahoney. Case 3–CA–
16091
July 13, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On April 13, 1992, Administrative Law Judge D.
Barry Morris issued the attached decision and on Sep-
tember 30, 1993, he issued the attached supplemental
decision. The Respondent filed exceptions, and the
General Counsel filed an answering brief to the Re-
spondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision in light of
the exceptions1 and brief and has decided to affirm the
judge’s rulings, findings, and conclusions and to adopt
the recommended Orders, as incorporated below.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Orders of the administrative law judge and
orders that the Respondent, Ward, Beals & McCarthy,
a Division of Trumbull Industries, Lockport, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Soliciting employee repudiation of the Union and
threatening employees with plant closure and loss of
jobs for engaging in protected concerted activities.
(b) Requiring employees to submit to drug and alco-
hol tests because they engage in protected concerted
activities.
(c) Suspending and discharging employees for ac-
tivities protected by Section 7 of the Act.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Robert J. Mahoney immediate and full re-
instatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed, and make him whole for any
loss of earnings and other benefits suffered as a result
of the discrimination against him, in the manner set
forth in the remedy section of the supplemental deci-
sion.
(b) Remove from its files any reference to the un-
lawful suspension and discharge of Mahoney and no-
tify him in writing that this has been done and that the
suspension and discharge will not be used against him
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, time-
cards, 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 facility on Lockport, New York, cop-
ies of the attached notice marked ‘‘Appendix.’’3 Cop-
ies of the notice on forms provided by the Regional
Director for Region 3, after being duly signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and be
maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
to ensure that the notices are not altered, defaced, 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 Re-
spondent 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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT solicit employee repudiation of the
Union and WE WILL NOT threaten employees with plant
closure and loss of jobs for engaging in protected con-
certed activities.
361TRUMBULL INDUSTRIES
1 All dates refer to 1990 unless otherwise specified.
WE WILL NOT require employees to submit to drug
and alcohol tests because they engage in activities pro-
tected by Section 7 of the National Labor Relations
Act.
WE WILL NOT suspend or discharge employees for
activities protected by Section 7 of the National Labor
Relations Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Robert J. Mahoney 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 re-
sulting from his discharge, less any net interim earn-
ings, plus interest.
WE WILL remove from our files any reference to the
suspension and discharge of Robert J. Mahoney and
will notify him in writing that this has been done and
that evidence of the unlawful suspension and discharge
will not be used against him in any way.
WARD, BEALS & MCCARTHY, A DIVI-
SION OF TRUMBULL INDUSTRIES
Mary Thomas Scott, Esq., for the General Counsel.
H. Brian Rector (Rector and Associates), of Akron, Ohio, for
the Respondent.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me in Buffalo, New York, on June 24 and
25, 1991. On a charge filed on January 16 and amended on
February 25, 1991, a complaint was issued on February 27,
1991, alleging that Ward, Beals & McCarthy, a Division of
Trumbull Industries (Respondent) violated Section 8(a)(1)
and (3) of the National Labor Relations Act (the Act). Re-
spondent filed an answer denying the commission of the al-
leged unfair labor practices.
The parties were given full opportunity to participate,
produce evidence, examine and cross-examine witnesses,
argue orally, and file briefs. Briefs were filed by General
Counsel and by Respondent.
On the entire record of the case, including my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, an Ohio corporation with an office and place
of business in Lockport, New York, is engaged in the dis-
tribution of industrial products. Respondent has admitted that
it annually purchases and receives at its Lockport facility
goods valued in excess of $50,000 directly from points lo-
cated outside the State of New York. Respondent admits, and
I so find, that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. In addi-
tion, it has been stipulated, and I so find, that Freight Driv-
ers, Dockmen, Helpers and Allied Workers Local Union No.
375, a/w IBT, AFL–CIO (the Union) is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
On May 1, 1990,1 Ward, Beals & McCarthy was pur-
chased by Trumbull Industries, Inc. At that time certain
changes were instituted, such as discontinuing breaks. Robert
Mahoney, who performed duties as a driver and welder, con-
tacted the Union and began soliciting union authorization
cards. Bruce Cantara, who at the time was warehouse man-
ager and is an admitted supervisor, testified that H. Brian
Rector, a company representative, and Daniel Judge, general
manager of Respondent, considered Mahoney and one other
individual to be the ‘‘ringleaders’’ behind the Union’s orga-
nizing campaign. Cantara testified that he was aware that
Mahoney was distributing authorization cards. A petition for
representation was filed with the Regional Office on July 24.
On September 14 the Union was certified as the collective-
bargaining representative for Respondent’s warehouse em-
ployees. The parties have been engaged in collective bar-
gaining since September.
2. Suspension of Mahoney
Daniel Judge, who appeared to me to be a credible wit-
ness, testified that on July 24 a message was received on the
Company’s answering machine from Mahoney’s mother say-
ing that he had been involved in an automobile accident and
would not be reporting for work. That evening, Judge read
an article in the local newspaper which stated that Mahoney
was hospitalized after being involved in an automobile acci-
dent. The article noted that Mahoney had been charged with
driving while intoxicated, speeding, and driving an unregis-
tered and uninsured vehicle.
On the following day Mahoney conferred with the presi-
dent of Respondent, Murray Miller, as to what course of ac-
tion to take. Judge testified that in the opinion of Miller, the
Company’s drug and alcohol policy was to be put into effect,
which provided that any employee who is perceived to be
under the influence of drugs or alcohol may be removed
from service and requested to undergo evaluation and appro-
priate testing by medical personnel. Accordingly, on July 25
Judge prepared a letter of suspension, addressed to Mahoney,
which stated, in pertinent part:
On Monday, July 23, 1990 you were involved in a
one vehicle accident . . . . The Lockport Union Sun
and Journal in Tuesday’s edition reported that you were
charged with driving while intoxicated, speeding and
driving an unregistered and uninsured vehicle. As of
today, you are suspended without pay because of your
violation of Trumbull Industries’ Drug and Alcohol
Policy . . . . You may seek reinstatement upon submit-
362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ting to a drug screen test and evaluation. Refusal to un-
dergo evaluation and testing will be considered cause
for discharge.
Judge asked Cantara to deliver the letter to Mahoney per-
sonally. That same afternoon Judge called the Alcoholism
Council seeking to make an appointment for Mahoney to be
tested. On July 26 a representative of the Alcoholism Coun-
cil advised Judge that Mahoney could be tested the following
day. Since Mahoney did not have a telephone, Judge asked
Cantara to personally inform Mahoney of the developments
and for Mahoney to call the Alcoholism Council. Judge testi-
fied that on July 27 Cantara told him that Mahoney was hav-
ing difficulty making the appointment.
Cantara corroborated much of Judge’s testimony. Cantara
testified that on July 25 he delivered the suspension letter to
Mahoney. Cantara further testified that on July 26 he again
visited Mahoney and gave Mahoney the phone number of the
Alcoholism Council and told him to call for an appointment.
Cantara testified that on July 27 he received a telephone call
from Mahoney who told him that he had tried to call the per-
son he was supposed to call at the Alcoholism Council but
that person was not available. He was told it would be 6 to
8 weeks before he could get an appointment to take a test.
Mahoney testified that he came to Respondent’s facility on
August 6 and brought with him the results of a drug test
taken somewhere other than the Alcoholism Council. He at-
tempted to speak to Judge but Judge was not available. He
told Cantara that he had been offered a job and that he
‘‘couldn’t wait any longer’’ for a job with Respondent.
Mahoney acknowledged that Cantara had told him that Judge
would not accept the results of the drug screening test which
he took. Cantara corroborated Mahoney’s testimony. Cantara
testified that approximately 2 weeks after the accident,
Mahoney came to Respondent’s facility and told him ‘‘he
had to get a paycheck in. His buddy had offered him a job,
and he had to take it.’’ Cantara testified that Mahoney never
returned to Respondent for employment after August 6 and
Cantara had determined that Mahoney ‘‘voluntarily quit his
job.’’
3. Events subsequent to the Union’s election
During the fall of 1990, William Hufnagel was a ware-
house employee at Respondent, a member of the bargaining
unit, and the union steward. He testified that after the Union
was elected, Judge came to his work station and told him
‘‘we could do without the Union there and any problems we
had we could work out between ourselves, we didn’t need
the Union for that.’’ He also testified that Judge said ‘‘they
could have a vote later on and vote the Union out.’’ In addi-
tion, Hufnagel testified that Rector told him ‘‘about the
things that the company could do to help keep the Union out.
One was to extend the negotiations for as long as possible
to get the people to feel that the Union wasn’t doing any-
thing for them and then try to vote the Union out. They
could close the plant, everybody would be out of a job.’’
Rector did not testify. Judge, who did testify, failed to deny
the statements attributed to him.
On September 13, Respondent sent a letter to its employ-
ees. After referring to an article which appeared in the Buf-
falo News, the letter stated:
Needless to say, the loss of customers is a serious
matter, and it affects each and every one in our organi-
zation. The loss of business will not enhance our secu-
rity nor will it lead to increases in wages and benefits.
Historically, we need to look around and remember
how many firms have gone out of business due to labor
strife. How many jobs have been eliminated due to the
continual loss of business which is a result of tactics
such as the attached article?
On November 13, Respondent sent another letter to em-
ployees, informing them of the status of negotiations between
Respondent and the Union. The letter stated, in pertinent
part:
[I]t has been rumored that the Union may call a strike
if the contract is not settled soon. During negotiations
the Union threatened to strike over the Union Shop and
Dues Check-Off clause. However, should employees
strike over the Union Shop and other economic issues
our company has the right to hire permanent replace-
ments for those strikers. Any employee who is perma-
nently replaced will no longer have a job at our com-
pany.
B. Discussion and Conclusions
1. Suspension of Mahoney
The complaint alleges that on July 25 Respondent indefi-
nitely suspended Mahoney and on August 6 caused his ter-
mination because of his union activities. After the purchase
of Ward, Beals & McCarthy by Trumbull Industries on May
1, certain changes were instituted such as the elimination of
breaks. Mahoney then met with union representatives and
began to distribute authorization cards. Cantara, who was an
admitted supervisor of Respondent, testified that he was
aware that Mahoney was distributing authorization cards. In
addition, Cantara credibly testified that Judge and Rector said
that they considered Cantara one of the ‘‘ringleaders’’ in
bringing in the Union. I find that General Counsel has made
a prima facie showing sufficient to support the inference that
protected conduct was a motivating factor in the decision to
suspend Mahoney.
Under Wright Line, 251 NLRB 1083, 1089 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), the Board requires that the General Counsel make a
prima facie showing sufficient to support the inference that
protected conduct was a motivating factor in the employer’s
decision. Once this is established the burden shifts to the em-
ployer to demonstrate that the ‘‘same action would have
taken place even in the absence of the protected conduct.’’
Judge appeared to me to be a credible witness. I have
credited his account of the events surrounding Mahoney’s
suspension. For the most part both Cantara and Mahoney
corroborated his testimony. On July 24, Judge received a
message on the Company’s answering machine from
Mahoney’s mother that Mahoney had been involved in an
automobile accident. That evening Judge read in the local
newspaper that Mahoney had been hospitalized following an
automobile accident and that he was charged with, among
other things, driving while intoxicated. The following day,
Mahoney called the president of Respondent to discuss what
363TRUMBULL INDUSTRIES
steps the Company should take with respect to Mahoney. In
their view the portion of the employee handbook dealing
with an employee who is perceived to be under the influence
of drugs or alcohol was to be implemented. That provision
provided that the employee may be removed from service
and requested to undergo evaluation and appropriate testing
by medical personnel. Accordingly, the next day Judge trans-
mitted a letter to Mahoney advising him that he was sus-
pended because of his violation of Trumbull Industries’ drug
and alcohol policy. The letter further advised Mahoney that
he could seek reinstatement on submitting to a drug screen
test and evaluation. In addition, the letter informed him that
refusal to undergo evaluation and testing would be consid-
ered cause for discharge.
Judge arranged to have Mahoney tested on July 27.
Through some misunderstanding, however, Mahoney did not
contact the appropriate person and instead was told by the
testing company that there would be a significant delay in ar-
ranging an appointment. While Mahoney had taken a drug
test at a different facility on July 26, Cantara had told
Mahoney that Judge would not accept that test. On August
6, Mahoney came to the plant and told Cantara that he re-
quired employment, that he was offered employment with
someone else, and that he ‘‘couldn’t wait any longer.’’
Cantara testified that at that point he had determined that
Mahoney ‘‘had voluntarily quit his job.’’
I find that Respondent has satisfied its burden of dem-
onstrating that the ‘‘same action would have taken place in
the absence of the protected conduct.’’ One of Mahoney’s
functions was that of a truckdriver. When Judge read that
Mahoney had been charged with driving a vehicle while in-
toxicated he conferred with the president of the Company
and they decided that pursuant to what they perceived to be
Respondent’s drug policy, Mahoney was to be suspended and
requested to undergo appropriate testing. On July 25,
Mahoney was suspended and he was advised that he may
seek reinstatement on submitting to a drug screen test and
evaluation. On the same day Judge arranged for a test of
Mahoney on July 27. Mahoney did not take the test and on
August 6 he appeared at the plant and told Cantara that he
had accepted another job and that he could not wait any
longer. Cantara considered that this meant that he was quit-
ting. I find that Respondent has sustained its burden under
Wright Line, supra, and, accordingly, the allegations in para-
graph 8 of the complaint are dismissed.
2. Statements to Hufnagel
Hufnagel testified that after the Union was elected, and
while negotiations were taking place, Judge came to
Hufnagel’s work station and told him ‘‘we could do without
the Union there and any problems we had we could work out
between ourselves, we didn’t need the Union for that.’’ In
addition, Hufnagel testified that Judge told him ‘‘they could
have a vote later on and vote the Union out.’’ Hufnagel also
testified that Rector, an admitted agent of Respondent, told
him that the Company could ‘‘extend the negotiations for as
long as possible to get the people to feel that the Union
wasn’t doing anything for them and then try to vote the
Union out. They could close the plant, everybody would be
out of a job.’’ Judge failed to deny the statements attributed
to him and Rector did not testify. I credit Hufnagel’s testi-
mony. In Hearst Corp., 281 NLRB 764 (1986), the Board
found that Respondent violated Section 8(a)(1) of the Act
when it solicited employee repudiation of the union. I find
that Judge’s statements to Hufnagel and Rector’s statement
that the Company could get the employees to believe that the
Union wasn’t doing anything for them and then ‘‘try to vote
the Union out’’ constituted solicitation of employee repudi-
ation of the Union, in violation of Section 8(a)(1) of the Act.
With respect to Rector’s statement that ‘‘they could close
the plant, everybody would be out of a job,’’ in Engineered
Control Systems, 274 NLRB 1308, 1313 (1985), Respond-
ent’s president told an employee that if he had to sign a
union contract he would have to ‘‘close his doors.’’ The
Board stated (id. at 1313):
[T]he prediction must be carefully phrased on the basis
of objective fact to convey an employer’s belief as to
demonstrably probable consequences beyond his con-
trol. Here, [the president’s] comments were not limited
to the consequences of agreeing to any particular con-
tract or contract language, rather in the context of by-
passing the Union, he implied that any agreement with
the Union would cause him to close his business. I find
that Rector’s remarks constituted an unlawful threat to
close the plant in order to undermine the Union as the
exclusive bargaining representative, in violation of Sec-
tion 8(a)(1) of the Act.
3. Letters to employees
On September 13, Respondent sent a letter to its employ-
ees suggesting that the Union was attempting to undermine
Respondent’s standing with its customers. The letter stated
‘‘the loss of customers is a serious matter and it affects each
and everyone in our organization.’’ The letter continued ‘‘we
need to look around and remember how many firms have
gone out of business due to labor strife. How many jobs
have been eliminated due to the continual loss of business
which is a result of tactics such as the attached article?’’ In
Harrison Steel Castings Co., 293 NLRB 1158, 1159 (1989),
the Board held that a statement suggesting that unionization
could lead to loss of business and a loss of jobs had a tend-
ency to coerce employees when viewed against other unlaw-
ful conduct on the part of Respondent, and constituted a vio-
lation of Section 8(a)(1) of the Act. I find that the September
13 letter to the employees threatened the likelihood of loss
of jobs and business due to the Union’s election and con-
stituted a violation of Section 8(a)(1) of the Act.
On November 13, Respondent sent another letter to em-
ployees which stated, in pertinent part, ‘‘should employees
strike over the Union Shop and other economic issues, our
company has the right to hire permanent replacements for
those strikers. Any employee who is permanently replaced
will no longer have a job at our company.’’ In Baddour, Inc.,
303 NLRB 275 (1991), the Board found that Respondent’s
statements to bargaining unit employees that ‘‘union strikers
can lose their jobs’’ and that ‘‘you could end up losing your
job by being replaced with a new permanent worker,’’ con-
veyed to the ordinary employee the clear message that em-
ployment will be terminated. Such a statement unlawfully
implied a threat of job loss as a result of the strike and thus
interfered with employees’ Section 7 rights. Although an em-
ployer is not required, in accordance with Eagle Comtronics,
Inc., 263 NLRB 515 (1982), to fully detail the protections
364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates refer to 1990 unless otherwise specified.
of striker replacement enumerated in Laidlaw Corp., 171
NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert.
denied 397 U.S. 920 (1970), an employer remains barred
from threatening employees, as a result of a strike, that em-
ployees will be deprived of their rights in a manner incon-
sistent with Laidlaw. I believe that the statement in the letter
that ‘‘any employee who is permanently replaced will no
longer have a job at our company’’ goes beyond a mere reci-
tation of the Employer’s rights to permanently replace eco-
nomic strikers and, accordingly, constitutes a violation of
Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Ward, Beals & McCarthy, a Division of Trumbull In-
dustries is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Freight Drivers, Dockmen, Helpers and Allied Workers,
Local Union No. 375, a/w IBT, AFL–CIO is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. By soliciting employee repudiation of the Union and by
threatening employees with the loss of their jobs if they
should engage in protected concerted activities, Respondent
has engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
5. The Respondent did not violate the Act in any other
manner alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I find it necessary to order Respondent
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
[Recommened Order omitted from publication.]
Mary Thomas Scott, Esq., for the General Counsel.
H. Brian Rector (Rector and Associates), of Akron, Ohio, for
the Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. On April
13, 1992, I issued a decision in this proceeding finding that
Respondent violated the Act by soliciting employee repudi-
ation of the Union and by threatening employees with the
loss of their jobs if they should engage in protected con-
certed activities. With respect to the suspension of Mahoney,
while I found that General Counsel made a prima facie
showing sufficient to support the inference that protected
conduct was a motivating factor in the decision to suspend
Mahoney, I also found that Respondent sustained its burden
under Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
and accordingly, I dismissed the allegations in paragraph 8
of the complaint.
On May 26, 1993, the Board remanded this proceeding to
me to issue a supplemental decision relating to the alleged
8(a)(1) and (3) violations involving Mahoney. On June 16,
1993, I issued an order affording the parties the opportunity
to file supplemental briefs by July 23, 1993. Supplemental
briefs were filed by General Counsel and by Respondent. On
further review of the record, including the supplemental
briefs of the parties, I make the following
ADDITIONAL FINDINGS OF FACT
On July 23, 1990,1 Mahoney suffered an off-duty alcohol-
related automobile accident. As I previously found, on July
25 Judge prepared a letter of suspension addressed to
Mahoney. When Judge instructed Cantara to deliver the letter
to Mahoney for his signature, Judge told Cantara ‘‘hopefully
he won’t sign the letter and then we’ll be done with him.’’
It was also at this time that Judge told Cantara that he be-
lieved that Mahoney was ‘‘one of the ringleaders of Union
organization out in the warehouse.’’ On July 26 Judge con-
tacted a representative of the Niagara County Alcoholism
Council (Alcoholism Council or Council) and was told that
the Council could administer a test to Mahoney on July 27.
Judge did not schedule the appointment but instructed
Cantara to deliver to Mahoney the name and telephone num-
ber of the representative at the Alcoholism Council with in-
structions that he should call and arrange a firm appointment.
While Mahoney had already submitted to a drug screen test
at St. Mary’s Hospital on July 26, he agreed to contact the
Alcoholism Council. However, when he did so he was in-
formed that the earliest appointment was in approximately 6
to 8 weeks. When Cantara informed Judge of this, Judge
called the Alcoholism Council and was informed that the ear-
liest appointment was 2 to 3 weeks away. Judge did not
schedule an appointment.
Between July 30 and August 6 Mahoney made several at-
tempts to contact Judge by telephone in order to discuss his
return to work but was unable to reach Judge. On August 6
Mahoney went to Respondent’s facility but Judge was not
available. At that time Mahoney advised Cantara that he had
been forced to accept other employment. Mahoney told
Cantara, ‘‘I wasn’t resigning or quitting my job but for eco-
nomic reasons I was going to take this other job, because I
couldn’t wait for Mr. Judge to appear miraculously some
place and tell me what the next move was.’’
On July 12, 1990, Judge interviewed another employee,
Steve Forsyth, for the position of corporate buyer. In consid-
ering whether Forsyth should receive the promotion, Judge
took into consideration whether he had a drinking problem.
Judge determined that Forsyth did not have a drinking prob-
lem and Forsyth was promoted. In addition, the record con-
tains evidence that William Hufnagel, another employee, re-
ceived a conviction for driving while under the influence of
alcohol in December 1987. Hufnagel was never requested to
submit to a drug and alcohol screening test.
Discussion and Conclusions
1. Background
The complaint alleges that on July 25 Respondent sus-
pended Mahoney, on July 26 required him to submit to a
drug/alcohol test, and on August 6 caused his termination; all
in violation of Section 8(a)(1) and (3) of the Act. As I pre-
viously found, Mahoney met with union representatives and
365TRUMBULL INDUSTRIES
2 At the hearing Respondent’s counsel argued that the action taken
by Respondent was mandated by the Drug Free Workplace Act (41
U.S.C. § 701). In this connection in its initial brief, Respondent also
cited Federal Highway Administration rules. Sec. 701(a)(1) of the
Drug Free Workplace Act provides that a company is required to
publish a statement notifying employees that possession or use, inter
alia, of a ‘‘controlled substance’’ is prohibited in the company’s
‘‘workplace.’’ The incident involving Mahoney occurred away from
Continued
distributed authorization cards. Cantara, who was an admitted
supervisor of Respondent, testified that he was aware that
Mahoney was distributing authorization cards. In addition,
Cantara credibly testified that Judge and Rector said that they
considered Cantara one of the ‘‘ringleaders’’ in bringing in
the Union. Accordingly, I find that General Counsel has
made a prima facie showing sufficient to support the infer-
ence that protected conduct was a motivating factor in the
decision to suspend Mahoney, to require him to take a
drug/alcohol test and in causing his termination.
2. Application of drug and alcohol policy
Respondent’s employees’ handbook, under the section en-
titled, ‘‘Drug & Alcohol Policy,’’ states as follows:
It is the Company’s policy to prohibit the unauthor-
ized possession, use, presence, sale of, transfer of, or
being under the influence of, drugs or alcohol on Com-
pany property [emphasis added].
Respondent has maintained that it took the actions it did
with respect to Mahoney because it was enforcing its provi-
sions pursuant to its drug and alcohol policy. In my initial
decision I agreed with Respondent’s contention. On further
reflection and further review of the record, I believe that my
initial determination was in error. No portion of the drug and
alcohol policy refers to an employee’s off-duty conduct or
states that off-duty alcohol-related conduct might cause an
employee to be removed from service, induce disciplinary
action, or trigger a requirement that the employee submit to
screen tests. As quoted above, the drug and alcohol policy
applies only, inter alia, to the possession and use of drugs
and alcohol on ‘‘Company property.’’ Respondent has not
satisfied its Wright Line burden of showing that the policy
applied to Mahoney’s off-duty accident.
3. Constructive discharge
The two elements necessary to establish a constructive dis-
charge are, first, that the burdens imposed on the employee
must cause a change in working conditions so difficult or un-
pleasant as to force an employee to resign, and second, that
the burdens were imposed because of the employee’s union
activities. Grocers Supply Co., 294 NLRB 438, 439 (1989).
A significant reduction in income for an indefinite period of
time, causing an employee to quit and seek alternative em-
ployment, when a motive for such treatment was protected
activity will establish constructive discharge. T & W Fash-
ions, 291 NLRB 137, 142 (1988).
Respondent’s discriminatory conduct in suspending
Mahoney and sustaining the suspension indefinitely created
just such an environment. Because of the indefinite suspen-
sion Mahoney had no source of income. In addition, Judge
failed to provide the information and direction to Mahoney
for satisfying the requirements for reinstatement. After the
July 25 letter Judge did not send any other written commu-
nication to Mahoney about how he might satisfy the alcohol
test requirement. In addition, after July 26 Judge did not send
Cantara with any more messages regarding instructions for
complying with the alcohol testing requirement. The lack of
income coupled with Judge’s failure to communicate and
provide Mahoney with instructions regarding the steps to re-
instatement created conditions so difficult as to force
Mahoney to resign.
4. Disparate treatment
General Counsel argues that Respondent’s treatment of
Forsyth and Hufnagel in not requiring them to submit to test-
ing, while requiring Mahoney to submit to testing, dem-
onstrates disparate treatment. Hufnagel had been convicted of
driving while under the influence of alcohol in December
1987, more than 2 years prior to Ward, Beals & McCarthy
having been purchased by Trumbull Industries, Inc. The drug
and alcohol policy in question is part of Trumull Industries
employees’ handbook. I do not believe that the fact that Re-
spondent did not request screening of an employee of a pred-
ecessor company, for an incident which took place more than
2 years earlier, shows disparate treatment. In addition, in
considering whether to promote Forsyth to the position of
corporate buyer Judge considered whether Forsyth had a
drinking problem and determined that he did not. This is a
far different situation than that of Mahoney, who was re-
ported in the local newspaper to have been ‘‘charged with
driving while intoxicated, speeding and driving an unregis-
tered and uninsured vehicle.’’ While Judge admitted that no
employees other than Mahoney were required to submit to a
drug and alcohol test, I believe that the examples cited by
General Counsel of Hufnagel and Forsyth do not demonstrate
disparate treatment.
5. Failure to rebut the prima facie showings
Under Wright Line, supra, once the Board has made a
prima facie showing, the burden shifts to the employer to
demonstrate that the ‘‘same action would have taken place
even in the absence of the protected conduct.’’ On further re-
flection and further review of the record, I find that Re-
spondent has not satisfied its burden. As stated above, Re-
spondent has not demonstrated that the drug and alcohol pol-
icy applied to an off-duty alcohol-related accident. The sus-
pension and the requirement to submit to a drug test were
therefore unwarranted. In addition, it was impossible for
Mahoney to comply with Judge’s terms for reinstatement in-
asmuch as they were not communicated to Mahoney and
Judge did not communicate or make himself available for re-
solving the problem. The lack of income due to the fact that
he was on indefinite suspension, coupled with Judge’s failure
to communicate and provide Mahoney with instructions re-
garding the steps to reinstatement created conditions so dif-
ficult as to force Mahoney to resign. Accordingly, I find that
Respondent, not having sustained its burden, has violated
Section 8(a)(1) and (3) of the Act by indefinitely suspending
Mahoney on July 25, by requiring him to submit to a
drug/alcohol test on July 26 and by causing his termination
on August 6.2
366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the ‘‘workplace.’’ In addition, it appears from the statute that alcohol
is not included in the definition of ‘‘controlled substance’’ (21
U.S.C. § 812). With respect to the Federal Highway Administration
rules, no testimony or other evidence was offered to show that the
rules applied to the incident involving Mahoney. I find that Re-
spondent has not sustained its burden of showing that Mahoney’s
suspension and mandatory testing were required by the Drug Free
Workplace Act or the Federal Highway Administration rules.
3 Under New Horizons, interest is 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.
ADDITIONAL CONCLUSION OF LAW
By indefinitely suspending Robert J. Mahoney on July 25,
1990, by requiring him to submit to a drug/alcohol test on
July 26, 1990, and by causing his termination on August 6,
1990, because of his union activities, Respondent has en-
gaged in unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act.
THE REMEDY
Respondent, having caused the termination of Robert J.
Mahoney in violation of the Act, I find it necessary to order
Respondent to make him whole for any loss of earnings that
he may have suffered from the time of his discharge to the
date of Respondent’s offer of reinstatement. Backpay shall be
computed in accordance with the formula approved in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).3