Eldeco, Inc v. NLRB ( 1997 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ELDECO, INCORPORATED,
Petitioner,
v. No. 96-2092
NATIONAL LABOR RELATIONS BOARD,
Respondent.
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v. No. 96-2259
ELDECO, INCORPORATED,
Respondent.
On Petition for Review and Cross-application
for Enforcement of an Order
of the National Labor Relations Board.
(11-CA-16006, 11-CA-16140, 11-CA-16181)
Argued: April 10, 1997
Decided: December 29, 1997
Before HALL and NIEMEYER, Circuit Judges, and
DUFFY, United States District Judge for the
District of South Carolina, sitting by designation.
_________________________________________________________________
Enforcement granted in part and denied in part by published opinion.
Judge Duffy wrote the majority opinion, in which Judge Niemeyer
joined. Judge Hall wrote a dissenting opinion.
_________________________________________________________________
COUNSEL
ARGUED: Kenneth Edwards Young, NELSON, MULLINS, RILEY
& SCARBOROUGH, L.L.P., Greenville, South Carolina; Cherie W.
Blackburn, NELSON, MULLINS, RILEY & SCARBOROUGH,
L.L.P., Charleston, South Carolina, for Petitioner. Steven B. Gold-
stein, NATIONAL LABOR RELATIONS BOARD, Washington,
D.C., for Respondent. ON BRIEF: Frederick L. Feinstein, General
Counsel, Linda Sher, Associate General Counsel, Aileen A. Arm-
strong, Deputy Associate General Counsel, Margaret Gaines Neigus,
Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for Respondent.
_________________________________________________________________
OPINION
DUFFY, District Judge:
The National Labor Relations Board ("NLRB" or"the Board")
found that Eldeco, Inc. ("Eldeco" or "the Company"), committed sev-
eral violations of the National Labor Relations Act ("the Act") at its
facilities in North Charleston, South Carolina and Winston-Salem,
North Carolina. Eldeco offers two basic responses to these findings:
(1) that the ALJ's credibility determinations were biased in favor of
the union; and (2) that the Board's findings on the various violations
were not supported by substantial evidence. We agree with the Board
that substantial evidence supports some violations, and we reject the
Company's claims that the agency proceedings were impermissibly
biased. We agree with Eldeco, however, that its decision to imple-
ment a drug testing policy did not run afoul of the Act. We also agree
with Eldeco that its decision to terminate two employees (Waco Cot-
tingham and Stephen Pope) was not based on discriminatory consid-
erations and that the August 3, 1994 letters sent to applicants
constituted valid offers of employment. For these reasons, we enforce
the Board's order in part and deny enforcement in part.
I.
Eldeco is alleged to have committed unfair labor practices involv-
ing electrical work in the construction of K-Mart retail stores in North
2
and South Carolina. The charge pertaining to the North Charleston
job site was filed by International Brotherhood of Electrical Workers,
Local 776, AFL--CIO ("Local 776"), and the Winston-Salem charges
by International Brotherhood of Electrical Workers, Local 342, AFL
--CIO ("Local 342") (jointly referred to as"the Union").
After issuance of an original complaint, a consolidated complaint
was issued on October 31, 1994. The amended allegations are that, at
the Winston-Salem job site, Eldeco violated Section 8(a)(1) of the Act
by: (1) advising its employees that union affiliated employees would
not be hired; (2) telling employees that it hired a foreman to keep the
job site union-free; (3) interrogating employees regarding the union
activities of other employees; (4) threatening its employees with
unspecified reprisals for engaging in union activity; (5) telling
employees that it would not have any union employees on the job; (6)
telling an employee that he was being terminated because of his union
activity; (7) discriminatorily prohibiting employees from discussing
the Union on the job; (8) creating the impression that it was engaged
in surveillance of employees' union activities; (9) promulgating and
disparately enforcing its drug testing policy in order to discourage
union activities by employees; and (10) threatening to discharge
employees supporting the Union by implementing a drug testing pol-
icy.
The complaint also alleges that, at the Winston-Salem job site,
Eldeco discharged employee Gregory Davis and failed to consider
and refused to offer jobs to 16-named applicants because of their
union activities or sympathies, in violation of Section 8(a)(3) of the
Act.
At the North Charleston job site, the complaint alleges that Eldeco
failed to consider and refused to offer jobs to nine applicants because
of their union activities, in violation of Section 8(a)(3) of the Act.
A hearing was held before the ALJ in Charleston, South Carolina,
on January 18, 19, and 20, 1995. The ALJ issued his opinion on June
9, 1995. He uniformly found in favor of the Union on issues of credi-
bility and held that Eldeco had engaged in several unfair labor prac-
tices. The ALJ concluded that the Company violated Section 8(a)(1)
of the Act at its Winston-Salem, North Carolina job site by: (1) advis-
3
ing its employees that a foreman had been hired to keep the job site
"union-free"; (2) interrogating employees regarding the union activi-
ties of other employees; (3) threatening employees with unspecified
reprisals for engaging in union activity; (4) telling employees that
there would not be any union employees on the job; (5) telling an
employee that he was being terminated because of his union activi-
ties; (6) creating the impression that Eldeco was engaging in surveil-
lance of its employees' union activities; (7) promulgating and
disparately enforcing a drug testing policy in order to discourage
union activities of its employees; and (8) telling employees that the
purpose of the drug-testing program was to eliminate union employ-
ees.
The ALJ further concluded that the Company violated Section
8(a)(1) and(a)(3) of the Act by: (a) discharging employees Gregory
Davis on July 23, 1994, and Stephen Pope and Waco Cottingham on
August 11, 1994, because of their union activities and sympathies;
and (b) failing to consider for employment and failing to employ cer-
tain applicants because of their union sympathies and activities.
The Board affirmed the ALJ's conclusions and required that
injured employees be reinstated, made whole, and further directed the
Company to cease and desist from all unfair labor practices. Eldeco
filed this petition for a review of the Board's order, and the Board
cross-petitioned for enforcement.
The ALJ's findings of fact are adequate to address most of the
Company's arguments. Therefore, we will reiterate the facts only
when specifically relevant.
II.
Eldeco lodges various objections to the fact-finding process in this
case, which we shall consider seriatim.
A.
Eldeco first presents statistical arguments, which it claims prove
that the ALJ was biased in favor of the Union. Eldeco notes that the
4
ALJ credited all of the Union's witnesses and none of its own,
thereby proving bias. Contrary to the Company's suggestion, bias is
not established merely because an ALJ uniformly credits one party's
witnesses over another's. NLRB v. Pittsburgh Steamship Co., 337
U.S. 656, 659 (1949). Furthermore, this court, in Fieldcrest Cannon
v. NLRB, previously stated:
Our review shall not be driven . . . by an overall statistical
balance of whose witnesses received credit and whose did
not. To do so would amount to judging a case by some
mechanical formula rather than the merits of the evidence.
After all, such statistics do not inform us whether"a credi-
bility determination is unreasonable, contradicts other find-
ings of fact, or is ``based on an inadequate reason or no
reason at all.'"
97 F.3d 65, 69 (4th Cir. 1996) (citing NLRB v. McCullough Environ-
mental Services, Inc., 5 F.3d 923, 928 (5th Cir. 1993) (citation omit-
ted)).
Eldeco also contends that approximately 89% of the ALJ's deci-
sions in the last 20 years were in favor of the Union, thereby indicat-
ing a bias in favor of labor unions. Fieldcrest also held that this type
of statistical argument is irrelevant. Fieldcrest, 97 F.3d at 69 ("To
evaluate an ALJ's impartiality in this way amounts to judging his
record by mere result or reputation, and in reality, such statistics tell
us little or nothing."). Accordingly, we have set aside the statistics
and have examined the fact-finding in this case to assess whether the
record as a whole supports the ALJ's determinations.
B.
Eldeco next challenges many of the ALJ's credibility determina-
tions. However, the credibility determinations that Eldeco challenges
were the product of lengthy and thorough proceedings during which
each party had ample opportunity to present its respective position to
the ALJ. The testimony consumed 3 days, during which the Union
called 31 witnesses, and Eldeco called 6 witnesses. The transcript
filled more than 800 pages.
5
The ALJ's decision reflects careful consideration of the testimony,
and he specifically stated that his decision was based upon his obser-
vation of the demeanor of the witnesses. Furthermore, the ALJ care-
fully spelled out each violation, the evidence proving the violation,
and his reasons for ruling as he did. Reviewing courts owe deference
to factual findings, assessing them only to determine whether they are
supported by substantial evidence. See Universal Camera Corp. v.
NLRB, 340 U.S. 474, 488-91 (1951). When factual findings rest upon
credibility determinations, they should be accepted by the reviewing
court absent "exceptional circumstances." NLRB v. Air Products &
Chemicals, Inc., 717 F.2d 141, 145 (4th Cir. 1983). Exceptional cir-
cumstances include cases where "a credibility determination is unrea-
sonable, contradicts other findings of fact, or is``based on an
inadequate reason or no reason at all.'" McCullough, 5 F.3d at 928
(citation omitted). Only in such a situation is a reviewing court "free
to review the record and independently reach [its] own conclusions."
McCullough, 5 F.3d at 928. Otherwise, careful fact-finding, such as
that undertaken in this case, is entitled to deference.
III.
Giving the proper deference to the ALJ's fact finding determina-
tions leaves no doubt that Eldeco committed certain unfair labor prac-
tices. However, the pervasiveness of those violations is not as great
as the ALJ concludes. A careful review of the record reveals that most
of the ALJ's credibility determinations are supported by substantial
evidence; however, we find that some of the ALJ's findings are not.
Eldeco's drug testing policy was not disparately enforced in order to
discourage union activities of its employees. We further disagree with
some of the inferences and conclusions drawn from the findings as
well as the scope of the remedy.
A.
Eldeco's drug testing policy at the Winston-Salem job site was
instituted on or about August 1, 1994, at the direction of Morris
Mason, Eldeco's director of safety. During the last week of July 1994,
Mr. Mason performed a safety inspection at the job site and received
indications that employees of other contractors were using drugs.
Based on this information and because Eldeco was preparing to hire
6
a very large group of new employees, Mr. Mason directed Mr. Mas-
talz to immediately make arrangements to drug test all new appli-
cants. Eldeco assessed that it did not have an existing drug problem,
and therefore opted not to incur the additional expense of testing its
current employees.
The ALJ found that this rule was promulgated in response to a
union organizing drive and disparately enforced in violation of Sec-
tion 8(a)(1) of the Act. NLRB v. McCullough Env. Services, 5 F.3d
923 (5th Cir. 1993); NLRB v. S.E. Nichols, Inc. , 862 F.2d 952 (2d Cir.
1988). Some of the factors that are relevant to determine whether an
employer has promulgated rules in response to employee Section 7
activity are: the timing of the rules' promulgation, whether the
announcement of the rules was accompanied by remarks about union
organizing, the employer's hostility to the union drive, and whether
the employer's justifications withstand scrutiny. Cannondale Corp.,
310 N.L.R.B. 845, 849 (1993); Capitol EMI Music, Inc., 311 N.L.R.B.
997, 1006 (1993), enforced, 23 F.3d 399 (4th Cir. 1994). The Board
noted that the timing of the implementation was just one week after
a strike and the Union's filing an unfair labor practices charge. Fur-
thermore, the ALJ credited Mr. Heath's testimony that Mr. Mastalz
said that the purpose of the drug test policy was to get rid of "union
guys," not drug users. This statement is seemingly buttressed by the
evidence that one employee (Mr. Luper) who failed the drug test was
allowed to continue work for two months. Accordingly, the Board's
inference that the drug test policy was promulgated in response to
union activity may facially appear to be supported by substantial evi-
dence.
On the other hand, there is absolutely no evidence of disparate
enforcement of the policy. As the board also noted, we fully recog-
nize that a nondiscriminatory drug testing policy serves a legitimate
employer interest by addressing the problem of drug abuse in the
work force. There is evidence that every applicant, union and non-
union, who applied after August 1, 1994, was required to take a drug
test. Furthermore, out of the more than 20 drug test reports in the
record, six indicate drug use, thereby adding credence to the Compa-
ny's concerns. As to Mr. Luper, it must be noted that he challenged
the accuracy of his first test, and his second test was negative.
7
We therefore refuse to punish a company for implementing a drug
testing program which is a good safety device and a valid public pol-
icy decision when there is no evidence of discriminatory enforcement.
The argument that the Company must test all present employees in
order to test all new applicants is specious. Accordingly, we deny any
recovery related to the drug testing policy.
B.
The Board's determination that Eldeco's discharge of Stephen
Pope and Waco Cottingham was motivated by anti-Union animus is
not supported by substantial evidence. Mr. Pope, a Union member
who was hired through a temporary service, went to the Winston-
Salem job site on August 8, 1994, wearing a Union T-shirt. He told
Mr. Mastalz that he was Union, and though aware of the strike,
wanted to work anyway. He worked for two days and was then told
that the fees paid to the temporary agency were too high. Mastalz told
him that the Company would hire him directly, but that he would
have to take a drug test.1 Pope refused to take the test and was dis-
charged.
Waco Cottingham was not a Union member. He was hired directly
by the Company on August 9, 1994, when he applied at the job site.
Mr. Cottingham signed the standard form acknowledging that the
Company had a substance abuse policy that may require him to take
a drug test in the future. He was later seen having lunch with Pope,
a known Union supporter, on August 10, 1994. The next day, his sec-
ond day of work, Cottingham was told that he had to take a drug test.
He refused and was terminated.
Both employees began work after the drug policy was imple-
mented. Again we note that there is no evidence that any new
employee or applicant at the Winston-Salem job site was not drug
tested. Since the drug testing policy was not disparately enforced, and
we have upheld that policy as valid, we must then reverse the Board's
_________________________________________________________________
1 Mr. Mason instructed Mastalz that employees from the temporary ser-
vice need not be tested; only those employees that applied directly to the
Company.
8
determination that Eldeco's discharge of Stephen Pope and Waco
Cottingham was in violation of the Act.
C.
We also reverse the Board's determination that the August 3, 1994
letters to the applicants do not constitute valid offers of employment.
After the strike at the Winston-Salem job site, Eldeco was in need of
several employees. It therefore sent out form letters to many appli-
cants reading:
Eldeco, Inc. has work available for you at the K-mart loca-
tion in Winston-Salem. If you are interested, please contact
Norman Mastalz at the job site to arrange for a drug test and
to work out details of wages and hours.
On August 9, 1994, Mr. Maurice, the Union's Business Manager,
faxed a letter to Mr. Mason stating that many of the Union members
who had applied with Eldeco had received the correspondence regard-
ing possible employment. Maurice also referenced the drug test and
warned that "an additional condition for employment required of only
the known Union applicants is a blatant violation of employees' Sec-
tion 7 rights." Mason replied to the letter and informed Maurice of the
safety reasons behind the drug test policy. None of the Union appli-
cants replied to the offer of employment.
For the reasons discussed above, we uphold the drug testing policy
as valid, and therefore the letters of August 3, 1994, constituted valid
offers of employment.2
_________________________________________________________________
2 This determination does not, however, affect any findings of the ALJ
that Eldeco violated the Act by failing to consider for employment and
by failing to employ the Union applicants at the Winston-Salem job site
prior to August 3, 1994. We do hereby limit any remedy, including back
pay, for the aforementioned violations to the time an applicant was
offered a job and did not accept it. Any appropriate remedial determina-
tions, such as when back pay obligations began to accrue, or may have
terminated, shall be considered in the compliance process. Casey
Electric, 313 N.L.R.B. 774 (1994).
9
IV.
Eldeco next contends that some of the applicants were not bonafide
employees under the Act because they were under the direction of the
Union. Eldeco makes the argument that if one is paid by the Union
and/or owes his allegiance to the Union, then the Union, rather than
the employer, would control the actions of the employee; and thus, he
could not be an employee under the act.
The Board adopted the ALJ's findings that Mr. Maurice, the paid
business manager of Local 342, and other union members who admit-
tedly owed loyalty to the Union were bona fide applicants for
employment and "employees" within the meaning of the Act. Subse-
quent to the ALJ's decision, the Supreme Court issued its opinion in
NLRB v. Town & Country Elec., Inc., in which the Court accepted the
contention that paid Union organizers are employees within the mean-
ing of Section 2(3) of the Act:
The Board . . . concluded that service to the Union for pay
does not "involve abandonment of . . . service" to the com-
pany. And, that conclusion seems correct. Common sense
suggests that as a worker goes about his ordinary tasks dur-
ing a working day, say, wiring sockets or laying cable, he
or she is subject to the control of the company employer,
whether or not the Union also pays the worker. The com-
pany, the worker, the Union, all would expect that to be so.
And, that being so, that Union and company interests or
control might sometimes differ should make no difference.
116 S. Ct. 450, 456 (1995) (internal citations omitted).
In the present case, there is no evidence of any arrangement
between the Union and the applicants which would have caused the
Company to lose control over normal workplace tasks in the event it
had hired them. Accordingly, we agree with the ALJ that Mr. Maurice
and the others were employees entitled to protection under the Act.
V.
We next turn to the North Charleston job site and alter slightly the
remedy ordered by the Board.
10
On March 1, 1994, Tom Flood, Sr., a member of Local 776, and
seven other individuals affiliated with Local 776-- Tom Flood, Jr.,
James Anderson, Sean Taylor, Vernon Taylor, David Smith, Doug
Michi, and James Michi -- appeared together at the Company's
North Charleston office and applied for work as electricians (with the
exception of Tom Flood, Jr., who was seeking an apprentice position).
Tom Flood, Sr., introduced the group to the Company's representa-
tives as Union members. Chris Momeir, the Company's director of
operations, said that the Company would need 10-12 employees ini-
tially and that the Company also had work in Winston-Salem, North
Carolina, and Hartsville, South Carolina. Momeir told the group to
come back on Friday, March 4, for interviews with General Superin-
tendent Edward Ball. John Frazier also went by the office on March
1, 1994. He left his application and was told by the secretary that the
Company was planning to hire about 10 men in two weeks.
The group, minus James Michi, returned on March 4, 1994, and
was informed that Mr. Ball had just left. Superintendent George Kelly
told the group to leave their applications, that the Company would be
hiring about 20 men and they would be contacted.
Subsequently, between March 1, 1994 and May 1, 1994, several of
the applicants went by the Company's office or the North Charleston
job site to check about employment opportunities. None of them were
hired. On May 2, 1994, Samuel Grimsley applied for work and was
immediately hired. He was not a member of the Union and had no
prior work history with Eldeco.
The Union filed unfair labor charges against Eldeco in North
Charleston on May 6, 1994. Thereafter, in June 1994, the Company
offered employment to several of the applicants listed in the com-
plaint.
An employer violates Section 8(a)(1) and (a)(3) of the Act by
refusing to consider applications or to hire applicants because of their
Union sentiments, membership or activities. Here, the ALJ concluded,
and the Board agreed, that by failing to consider the applications of
the Union supporters at the North Charleston Office and by failing to
hire them, the Company engaged in unfair labor practices under Sec-
tion 8(a)(1) and (a)(3). Applying our deferential standard of review,
11
we uphold the ALJ's findings of fact, which are clearly supported by
substantial evidence in the record. However, we disagree as to the
extent of the violations and therefore limit the remedies accordingly.
A.
On April 8, 1994, Tom Flood, Sr., gave a sworn statement in sup-
port of charges made against Eldeco in a law suit pertaining to defec-
tive work at an unrelated project. The statement listed several code
violations allegedly committed by Eldeco and stated that Mr. Flood
"feared for [his] life and could not sleep thinking of the danger to the
public."
On April 15, 1994, Tom Flood, Sr., went to Eldeco's offices to
check on his application. While there, he spoke with Richard Zeron,
manager of Eldeco's North Charleston branch, who questioned him
about his criticisms of the unrelated project. Mr. Flood stated that
Zeron was upset about the allegations. Zeron testified that he did not
want to rehire Tom Flood, Sr., because he did not think it advisable
to hire someone who was adverse to Eldeco at the start. We find that
Eldeco had a valid non-discriminatory reason for not hiring Mr.
Flood, Sr. Goldtex, 14 F.3d at 1011; see also NLRB v. Wright Line,
a division of Wright Line, Inc., 662 F.2d 899 (1st Cir. 1981), cert.
denied, 455 U.S. 989 (1982).
However, Eldeco could not have known about Mr. Flood's state-
ment prior to April 8, 1994. Also, Mr. Flood should have been high
on Eldeco's hiring list because he had worked for Eldeco previously.3
_________________________________________________________________
3 Eldeco had written guidelines for staffing jobs which were imple-
mented prior to the incidents at issue. Those guidelines set forth the
Company's hiring priority:
Hiring priority will be as follows:
A. Current Eldeco employees (transfers) with proven safety,
attendance, performance and behavior records.
B. Former Eldeco employees with proven safety, attendance,
performance and behavior records.
C. Applicants recommended by Eldeco employees, if other-
wise qualified.
12
The termination report that Eldeco prepared was positive and stated
that Eldeco would rehire Mr. Flood. Therefore, the ALJ's determina-
tion that Eldeco failed to consider Mr. Flood, Sr.'s application and
also failed to hire him is entitled to deference. Accordingly, we do not
disturb the ALJ's determination that Mr. Flood was discriminated
against, however, we do limit his recovery to only those damages
incurred prior to April 8, 1994.
B.
The Company also contends that it made valid offers of employ-
ment to some of the applicants. During June 1994, the Company cal-
led many of the applicants to inform them that Eldeco had jobs for
them. The ALJ noted that the calls came after the unfair labor practice
charge had been filed and were questionable as to whether they con-
stituted offers of employment. The ALJ left this issue to the compli-
ance stage of the proceeding. We modify that ruling slightly to limit
any alleged damages to the date that an applicant was offered a job
and did not accept it.
C.
Eldeco further challenges the NLRB's decision that Eldeco's
refusal to hire Tom Flood, Jr., was based on discriminatory consider-
ations. Tom Flood, Jr., was in high school when he applied with
Eldeco on March 1, 1994, and was looking for part-time work as an
apprentice.4 Eldeco argues that, because Tom Flood, Jr., admitted in
his testimony that he was not qualified or capable of performing the
work of a helper, the Board's conclusion is erroneous. The Board
noted this testimony, but concluded that Mr. Flood, Jr.'s lack of quali-
fications was not the reason for Eldeco's refusal to hire him; rather,
the refusal was based on discriminatory considerations. The Board
then left to the compliance stage of the proceeding the issues of
_________________________________________________________________
D. Applicants with experience on similar projects, if otherwise
qualified.
E. Unknown qualified applicants.
4 Eldeco does not hire part-time electricians or helpers.
13
whether the admission should operate to preclude reinstatement
and/or toll back pay. We disagree. An applicant who is admittedly not
qualified to perform the job for which he applied could not have been
damaged from a refusal to hire, whatever the reason. Accordingly, we
preclude any reinstatement and toll any back pay.
VI.
We therefore enforce the Board's order with the exception of those
provisions relating to Waco Cottingham, Stephen Pope, Tom Flood,
Tom Flood, Jr.; the drug test policy, and the offers of employment.
As to those matters, we deny enforcement.
ENFORCEMENT GRANTED IN PART AND DENIED IN PART
HALL, Circuit Judge, concurring in part and dissenting in part:
To the extent the majority enforces the order of the Board, I concur
in the judgment. To the extent it does not, I respectfully dissent.
I.
Winston-Salem
The sequence of events leading up to it leaves little doubt about
Eldeco's motive for suddenly implementing drug testing of new hires
at Winston-Salem; at the very least, the Board's finding of unlawful
motivation has substantial support in the record, leaving us no choice
but to affirm it. 29 U.S.C. § 160(e) (findings supported by substantial
evidence are "conclusive").
Terry Christie was a foreman at the Winston-Salem jobsite. On
July 14, he told employee Gregory Davis that the company was bring-
ing in ten to twelve workers from South Carolina. Christie mentioned
that local union men had applied for jobs, which prompted Davis to
ask whether they were qualified. Christie admitted that they were, but
continued, "We're not having no union men on this job. [Mastalz]
won't hire union people on this job."
14
Christie and Davis had a less cordial encounter on July 23. Christie
observed Davis talking to a new employee. Suspecting that Davis was
a covert union sympathizer, Christie confronted him and asked
whether Davis was pro-union. Davis revealed that he was. Christie
immediately fired Davis.
The discharge of a worker solely on account of his pro-union senti-
ments is perhaps the most basic of all unfair labor practices. In pro-
test, several employees immediately went on strike, and there was
intermittent picketing. The union filed unfair labor practice charges
on July 27.
Before the strike, Eldeco had never conditioned employment on a
drug test and had, as the majority concedes, unlawfully refused to
employ known or suspected union sympathizers. Within seven days
of the strike, however, Eldeco had both implemented its drug testing
policy and invited members of the union to come to work. Was this
convergence of events simply a remarkable coincidence of a well-
meaning safety improvement and a Grinch-like change of heart? Or,
rather, was it simply a legal stratagem designed to enable Eldeco to
continue to exclude union members and then, perhaps, to cut its losses
before the Board or this court?
Surely it was rational for the Board to draw the latter inference.
The timing of a policy change is powerful evidence of its unlawful
purpose. See NLRB v. Village IX, Inc., 723 F.2d 1360, 1366 (7th Cir.
1983) (antiunion purpose behind facially neutral policy can be
inferred from timing). Moreover, there is more than timing here. As
I will discuss below, Mastalz expressly admitted to an employee and
a prospective employee that the purpose of the drug testing was to
"get rid of the union guys." This statement alone provides substantial
support for the Board's factual finding of unlawful purpose.
If the purpose of a work rule is to suppress the exercise of section
7 rights, the employer has committed an unfair labor practice, not-
withstanding that the rule is applied to pro- and anti-union alike.
Standard-Coosa-Thatcher Carpet Yarn Div'n v. NLRB , 691 F.2d
1133, 1141-1143 (4th Cir. 1982). Why? Because every worker has
section 7 rights, whatever his attitude at any given time toward collec-
tive representation. Heavyhanded retaliatory tactics like Eldeco's drug
15
testing are illegal not just because they may unfairly and coercively
blunt a current organizational drive, but also because their example
serves to squelch any incipient desires for representation in the exist-
ing workforce. Pillories and hangings were public for their salutary
effects on witnesses, and many a saber has been rattled to keep the
peace. A deliberate show of force is a deliberate exercise of force.
Even if it were essential to the policy's illegality that it be discrimi-
natory, there is substantial evidence that it was. In August, Eldeco
employee Tony Heath introduced Mark Luper to Mastalz and Chris-
tie. Heath needed a helper, and he recommended Luper. Heath told
Mastalz that Luper was afraid he might fail the drug test. Mastalz
replied that "the drug test was not to get rid of the drug users but to
get rid of the Union guys and not to worry about it." Luper took the
test and failed. There were no adverse consequences-- he was hired
and permitted to continue to work.
In addition to this direct evidence of discrimination, the odd struc-
ture of the policy supports a finding of discriminatory motive. Eldeco
proposed to test only new applicants, at a time that it believed that its
existing workforce was non-union and that the union was trying to
organize from outside.*
Moreover, we ought not -- and in my view, we cannot -- forgive
Eldeco's illegal motivation because drug testing of electricians in
Winston-Salem strikes us as a good idea. We have no role in setting
the terms and conditions of private employment (other than, of
course, those few actually prescribed by law, like minimum wages
and maximum hours). It is quite beside the point that drug testing
might be a "good safety device" or a "valid public policy decision."
Supra at 8. The goodness and validity of work rules are in the eye of
the employer, and their promulgation is its prerogative, with the one
big exception relevant here: rules intended to interfere with employ-
ees' free exercise of § 7 rights are illegal.
_________________________________________________________________
*Eldeco's policy also made an odd distinction among applicants: only
those who applied directly would be tested, while those referred by a
temporary employment agency would not. Again, one could infer that
Eldeco did not expect union members to apply through an agency, and
it designed its policy accordingly.
16
Because the drug testing policy violated the Act, the August 3 blan-
ket offers of employment to union members were invalid: an offer
conditioned on acquiescence in an unfair labor practice is no offer at
all. Likewise, Pope and Cottingham's terminations were based on an
illegal policy, rendering the terminations unlawful as well.
II.
North Charleston
The majority has not pruned quite so much from the Board's order
regarding the North Charleston jobsite, but, in my view, those prun-
ings are just as erroneous.
As to Flood, Jr., the majority has inappropriately reached out to
address and resolve an issue that has not yet been resolved below. The
Board found simply that the actual reason for Eldeco's failure to hire
Flood, Jr., was its perception that he was for the union. The Board left
completely open, however, whether Flood, Jr., was entitled to any
remedy: "we leave to compliance whether [Flood, Jr.'s lack of qualifi-
cations] should operate to preclude reinstatement and/or toll back-
pay." In a footnote, the Board noted that leaving the matter for
compliance would allow "a further development of relevant facts."
I would enforce this logical approach. We know precisely why
Flood, Jr., was not hired, and that reason is unlawful. Perhaps a
responsible electrical contractor should not have hired him, but Elde-
co's burden is higher: it must show that it would not have hired Flood,
Jr., absent its illegal motivation. NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393, 400-403 (1983) (overruled in part on other
grounds, Director, OWCP v. Greenwich Collieries, 512 U.S. 267
(1994)). Unqualified persons are hired every day to positions high and
petty. Those employees, however inept their job performance, have
§ 7 rights.
The majority also errs in limiting Flood, Sr.'s backpay to the period
before he signed, under subpoena, an affidavit critical of Eldeco's
work at another job. This affidavit was submitted to a state licensing
agency in support of charges a third party had filed against Eldeco.
17
The essential premise of the majority's holding is that Flood, Sr.,
could have been fired for signing this affidavit had he been hired in
the first place. I do not read the law that way:
No person shall discharge or in any manner discriminate
against any employee because such employee has filed any
complaint or instituted, or caused to be instituted, any pro-
ceeding under or relating to statutes, rules, or regulations
regarding occupational safety and health, or testified, or is
about to testify, in any such proceedings or because of the
exercise by such employee on behalf of himself or others of
any right afforded by such statutes, rules or regulations.
S.C. Code Ann. § 41-15-510 (1986). Eldeco's expressed willingness
to violate this state law ought not be a defense to its violation of fed-
eral law.
I would enforce the Board's order in its entirety.
18