Allied Aviation Fueling of Dallas, LP

National Labor Relations Board - Administrative Judge Opinions

Dec 21, 2005

16-CA-024267 (N.L.R.B. Dec. 21, 2005)

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Dallas, TX

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE 5
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ALLIED AVIATION FUELING OF
DALLAS, LP

and CASES 16-CA-24267
16-CA-24288
TRANSPORT WORKERS UNION OF
AMERICA, AIR TRANSPORT
LOCAL 513

Lisa House, Esq., and Nam Van Esq., for
the Government.1
Christopher C. Antone, Esq..,2 for the
Company.3
Sanford R. Denison, Esq., for the Union.4

DECISION

Statement of the Case

WILLIAM N. CATES, Administrative Law Judge. This is a wrongful suspension,
discharge, and unilateral change in working conditions case. The case was tried before me on
November 2 and 3, 2005,5 in Fort Worth, Texas. The cases originate from charges filed by
Transport Workers Union of America, Air Transport Local 513 (Union). The charge in case
16-CA-24267 was filed on May 6. The charge in case 16-CA-24288 was filed on May 19.
The prosecution of these cases was formalized on July 29 when the Regional Director for
Region 16 of the National Labor Relations Board (Board), acting in the name of the Board’s
General Counsel, issued an Order Consolidating Cases, Consolidated Complaint and Notice
of Hearing (complaint) against Allied Aviation Fueling of Dallas, LP6 (Company).

1 I shall refer to Counsel for General Counsel as Government Counsel or Government.
2 The Company’s post-hearing brief in this matter was filed by Christopher C. Antone, Esq. and Stephen
E. Hammel, Esq.
3 I shall refer to Counsel for the Respondent as Company Counsel or Company.
4 I shall refer to Counsel for the Charging Party as Union Counsel or Union.
5 All dates herein are 2005 unless otherwise indicated.
6 The Order Consolidating Cases, Consolidated Complaint and Notice of Hearing that issued on July 29,
2005 identified the Respondent as Allied Aviation Holdings, Inc. d/b/a Allied Aviation Services, Inc.
The complaint was amended at hearing to reflect the correct name of the Respondent as Allied Aviation
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Specifically it is alleged that on April 8 the Company suspended and on April 19
discharged its employee Patrick Sanford (Sanford), in violation of Section 8(a)(3) and (1) of
the National Labor Relations Act, as amended, (Act), because he engaged in union activities,
and to discourage employees from engaging in these and other concerted activities. It is also
alleged the Company violated Section 8(a)(5) and (1) of the Act by issuing an April 7, 2005
policy memorandum requiring employees who suffered a workplace injury to submit to a drug
test and issuing a May 10 policy memorandum requiring employees who were absent from
work for any reason to submit to a drug test. In this regard it is alleged the company issued
the policies without notice to and without affording the Union an opportunity to bargain with
the Company with respect to such conduct and the effects of such conduct.

The Company denies having violated the Act in any manner alleged in the complaint.

On the entire record, including my observation of the demeanor of the witnesses, and
after considering briefs filed by counsel for the Government, Union, and Company, I
conclude, as more fully explained below, that the Company violated the Act substantially as
alleged in the complaint.

Findings of Fact

I. Jurisdiction

The Company is a limited partnership incorporated in the State of Texas with an office
and place of business located at the Dallas-Fort Worth International Airport (DFW), where it
has been and continues to be engaged in the business of providing fueling services and fuel
facility maintenance. During the past year, a representative period, the Company in
conducting its business operations purchased and received at its facility goods and materials
valued in excess of $50,000 from points outside the State of Texas. The parties admit and I
find the Company is an employer engaged in commerce within the meaning of Section 2(2),
(6) and (7) of the Act.

The parties admit and I find the Union is a labor organization within the meaning of
Section 2 (5) of the Act.

The parties admit and I find that General Manager Gary Shiflet (General Manager
Shiflet), Operations Manager Joe Correa (Operations Manager Correa) and Maintenance
Manager Jerry Keeney (Maintenance Manager Keeney) are supervisors and agents of the
Company within the meaning of Section 2(11) and (13) of the Act. There is no dispute that
Judith Ann Brandt (Vice President Brandt) is the Company’s Vice President for Human
Resources and Administration. Vice President Brandt is responsible for the Company’s
human resources and labor relations matters, including the negotiating of contracts and the
representation of the Company in arbitrations under the collective bargaining agreement. It is
undisputed that she exercises authority to hire, fire, and train employees and I find her to be a
Fueling of Dallas, LP. There is no dispute that Allied Aviation Fueling of Dallas, LP is a division of
Allied Aviation Services, Inc.
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supervisor and agent of the Company within the meaning of Section 2(11) and 2(13) of the
Act.

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II. Alleged Unfair Labor Practices

A. The Alleged Unlawful Discharge of Patrick Sanford

1. Background

The Company, located at the DFW airport, supplies jet fuel for commercial airlines at
the DFW airport. The Company and the Union have had a bargaining relationship for over
thirty years and are currently parties to an agreement, with an effective date of November 1,
2003 and a termination date of October 21, 2006. The agreement covers all employees
engaged in the fueling service and other related aircraft services and includes the operation
and maintenance of the fueling facilities at Love Field in Dallas, Texas and the DFW
International Airport. Article 28 of the agreement provides that an employee must submit a
grievance, complaint, or claim of unjust treatment within seven days.

Before his discharge, Sanford had been employed by the Company for approximately
22 years. At the time of his termination on April 15, 2005, he was employed as a facilities
maintenance mechanic, performing repair work on the tank farm facility, company vehicles,
and the fueling systems.

Sanford has been a member of the Union since he was first employed with the
Company in 1983. At the time of his termination, Sanford held the Union office of
Maintenance Section Chairman; an office to which he was elected by his fellow Union
members. As a Section Chairman, Sanford was responsible for the representation of
approximately 45 employees and the supervision of four stewards designated for maintenance
and utility. As Section Chairman, he reported directly to Stoney Lowrance (Lowrance), who
was the Union Executive Board member for the Company.

2. The Filing of the March 9, 2005 Grievance

In mid-February 2005, Sanford spoke with Maintenance Manager Keeney about the
Company’s outsourcing work in the Maintenance Department. He recalled that Maintenance
Manager Keeney assured him that the Company would cease any further outsourcing. On
approximately March 2 or 3, 2005, employees Larry Rottman and Tom Garvin told Sanford
about an additional incident involving the Company’s outsourcing of maintenance department
work.

Sanford testified that when he initially confronted Maintenance Manager Keeney
about the additional outsourcing, Maintenance Manager Keeney told him that an upper
management official had instituted the outsourcing. After talking with Maintenance Manager
Keeney, Sanford spoke with the Company’s Love Field Station Manager and verified that a
vehicle was serviced outside the facility.

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On March 8, 2005 Sanford informed Lowrance and Local Union President Mark
Nelson (Nelson) about the recent outsourcing of work. Nelson directed him to file two
grievances on behalf of the two employees who would have been entitled to overtime if the
work had not been outsourced. The employees were identified as David Thompson
(Thompson) and Larry Rottman (Rottman). Sanford asked Rottman to sign the grievance
when Rottman reported to work for the day shift on March 9. Sanford expected Union
Steward Charlie Bumpers (Bumpers) to present the grievance to Thompson that same evening
when he worked with Thompson on the midnight shift. Bumpers testified that he attempted to
contact Thompson by telephone to let him know that the Union had a grievance to file on his
behalf. Despite his attempt, he did not reach Thompson during his shift that ended on March
9.

When Sanford reported to work on March 9, he discovered that Thompson had not
signed the grievance. Sanford testified that because March 9th was the seventh day under the
terms of Article 28 of the collective bargaining agreement, he signed Thompson’s name.
Sanford testified that he signed Thompson’s name to the grievance in order to stop the
outsourcing and because it was his obligation as a Section Chairman to file the grievances.

In addition to signing Thompson’s name, Sanford also completed the other
information sections of the grievance form, including the correct address and telephone
number for Thompson. Under the terms of the collective bargaining agreement, the
department head receiving the grievance is required to set the matter for hearing within four
days of receipt of the written grievance and the Company is required to provide written notice
by letter or telegram to the Union and to the employee of the scheduled hearing. Sanford
testified that by completing the address for Thompson, he expected Thompson to receive the
Company’s response to the grievance.

When Sanford gave the grievances to Maintenance Manager Keeney, he did not tell
Maintenance Manager Keeney that he had signed Thompson’s name. He explained that he
had not done so because he had not felt that he had done anything wrong. He testified that the
grievance was to stop the outsourcing and Thompson would have benefited from the
grievance. Sanford cited other Company documents including change of shift forms, day
trade papers, and preventive maintenance forms that are signed by employees on behalf of
other employees. Nelson testified that it is not uncommon for stewards and union officials to
sign employees’ names on grievances. Vice President Brandt denied knowledge of any
incident in which an employee signed the name of another employee on a grievance form.

3. Events Following the March 9, 2005 Grievance

Bumpers recalled that he was not able to reach Thompson about the grievance until
March 12. By the time that Bumpers was able to reach Thompson by telephone, Thompson
had already received a copy of the Company’s response to the grievance. Describing
Thompson as being “pretty mad” about the grievance, Bumpers recalled that Thompson
threatened to have Sanford’s job because of the grievance.

On March 15, Sanford met Thompson in the hallway during a shift change. Thompson
held up the Company’s response to the grievance and asked Sanford if he had signed the
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grievance. When Sanford confirmed that he had done so, Thompson walked away. Sanford
came to work early on March 16 in order to speak with Thompson. Sanford explained to
Thompson why he had filed the grievance. Sanford also assured Thompson that if he was
upset about the grievance, the Union would withdraw the grievance and not push it any
further. Sanford recalled that Thompson told him that he wanted to maintain a “low-key
profile” on his shift and he did not want any retaliation from the Company for the grievance.
Sanford assured Thompson that there would be no retaliation and that he would speak with
Maintenance Manager Keeney.

Following his conversation with Thompson, Sanford sought out Maintenance Manager
Keeney and told him that he had signed the grievance for Thompson. Sanford told
Maintenance Manager Keeney that because Thompson was upset about the grievance, the
Union was withdrawing the grievance and the matter would be dropped.7 Sanford testified
that he also mentioned Thompson’s concern about possible retaliation. Maintenance Manager
Keeney assured Sanford that there would be none. Maintenance Manager Keeney
corroborated Sanford’s testimony and confirmed that Sanford volunteered to him that he had
signed Thompson’s grievance. In response to Sanford’s voluntary admission that he had
signed the grievance, Maintenance Manager Keeney did not indicate that Sanford had done
anything wrong or could be subject to discipline.

Rottman’s grievance, that mirrored Thompson’s grievance, was later resolved with the
Company’s agreeing to make a monetary settlement to compensate Rottman for the lost
overtime.

4. Sanford’s Suspension and Discharge

On April 8, 2005 Sanford was called to Operations Manager Correa’s office to meet
with Correa and Maintenance Manager Keeney. Lowrance was present as Sanford’s Union
representative. Maintenance Manager Keeney informed Sanford that he was suspended and
that the Company was conducting an investigation concerning his fraudulently signing
Thompson’s grievance. Maintenance Manager Keeney also asserted that Sanford falsified a
Company document. While Lowrance asked questions, no questions were asked of Sanford.

On April 11, Sanford attended an additional meeting with Maintenance Manager
Keeney in which he was asked if he had signed the March 9 grievance for Thompson.
Sanford again confirmed that he had done so. Maintenance Manager Keeney asked for
Sanford’s account of what occurred and Sanford provided a written statement. On April 15,
Sanford was informed in a meeting with Maintenance Manager Keeney and Operations
Manager Correa that because of his having signed Thompson’s grievance, he was terminated.
Maintenance Manager Keeney explained that the termination was based upon dishonesty,
fraud, and his having falsified Company documents. By letter dated April 20, 2005
Maintenance Manager Keeney confirmed that Sanford was terminated based upon Article
28(b) of the collective bargaining agreement. The specific violations were identified as
“dishonesty, falsifying company documents, and fraud against Allied Aviation that would

7 Nelson testified that because Thompson did not take the grievance to the second step, the Union did not
have to withdraw the grievance.
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cause financial impact to Allied Aviation.” Maintenance Manager Keeney admitted that the
“financial impact” referenced in the letter was the potential arbitration award if the Thompson
grievance had been found to have merit. Union President Nelson testified that prior to April
11; he had never heard any Company official assert that a grievance form was a Company
document. He also confirmed that Union uses the same grievance form for all of the
bargaining units represented by the Union.

Maintenance Manager Keeney testified that the decision to terminate Sanford was
based upon his signing Thompson’s name to the grievance. Maintenance Manager Keeney
also admitted that it was his understanding that Sanford signed Thompson’s name to the
grievance because the grievance would have been untimely if it had not been filed on March
9. Vice President Brandt testified that she alone made the decision to terminate Sanford. She
explained that she did so because Sanford “attempted to defraud the Company and the airlines
of money.” While she identified the “airlines” as a consortium of airlines at DFW, she
acknowledged that the Company had no ownership in the consortium.

General Manager Shiflet testified that the Company had also terminated two other
employees for dishonesty. One individual was identified as a supervisor who had allowed an
employee to “punch in” for an employee who was not present. The second individual was a
non-bargaining unit clerk who signed herself in as being at work at a time when she was not.
The document offered in support of the supervisor’s discharge reflects that the supervisor was
terminated for failing to follow Company procedures for ensuring that all employees timely
report to work.

5. Summary and Conclusions

The parties agree that Sanford’s discharge resulted from his behavior in the filing of a
grievance under the collective bargaining agreement. The Government maintains that in
filing the grievance, Sanford engaged in concerted activity as protected by Section 7 of the
Act. The Company, however, asserts that by fraudulently signing an employee’s name to the
grievance, Sanford lost the protection of the Act.

In order to determine whether an employee has been discharged for concerted
protected activity, it must be established that the employee engaged in concerted activity and
then if there was concerted activity whether it was activity protected by the Act. Section 7 of
the Act in pertinent part states “Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection.” In Meyers Industries, (Meyers I), 268 NLRB 493 (1984),
remanded sub. nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), the Board set out its
definition for “concerted activity.” Generally, to find an employee’s activity to be
“concerted,” the Board will require that the activity be engaged in, with, or on the authority of
other employees and not solely by and on behalf of the employee himself. Once the activity
is found to be concerted, an 8(a)(1) violation will be found if the employer knew of the
concerted nature of the employee’s activity; the concerted activity was protected by the Act;
and the adverse employment action at issue, was motivated by the employee’s protected
concerted activity. In Meyers Industries (Meyers II), 281 NLRB 882 (1986), enfd. sub. nom.
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Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), the Board further clarified that under proper
circumstances a single employee may engage in concerted activity within the meaning of
Section 7 of the Act.

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It is well established that employees, under Section 7 of the Act, have the protected
right to file and process grievances,8 and the discipline or discharge of employees for doing so
is a violation of Section 8(a)(1). Prime Time Shuttle, Inc., 314 NLRB 838, 841 (1994); Thor
Power Tool Co., 148 NLRB 1379, 1380-1381 (1964), enfd. 351 F.2d 584 (7th Cir. 1965). It is
also well established that union representatives filing grievances are also protected by the Act
when presenting a grievance to an employer. The Union Fork and Hoe Company, 241 NLRB
907, 908 (1979). The grievance activities of union stewards have been found to be especially
important to the effectiveness of grievance-arbitration machinery. Exxon Mobil Corporation,
343 NLRB No. 44, slip op. at 1 (2004).

For an employee to forfeit the protection of the Act while processing a grievance, “the
employee’s behavior must be so violent, or of such an obnoxious character, as to render him
wholly unfit for further service.” Clara Barton Terrace Convalescent Center, 225 NLRB
1028, 1034 (1976). It is well established that “union stewards filing and processing grievances
on behalf of other employees enjoy the protection of the Act, even if, while doing so, they
‘exceed the bounds of contract language, unless the excess is extraordinary, obnoxious,
wholly unjustified, and departs from the res gestae of the grievance procedure.’” Roadmaster
Corporation, 288 NLRB 1195, 1197 (1988).

In assessing whether an employee’s protected concerted activity loses the protection of
the Act, the Board has recognized that there is a line beyond which employees may not go
with impunity. That line “is drawn between cases where employees engaged in concerted
activities exceeds the bounds of lawful conduct in a moment of animal exuberance or in a
manner not motivated by improper motives and those flagrant cases in which the misconduct
is so violent or of such character as to render the employee unfit for further service.” Prescott
Industrial Products Company, 205 NLRB 51 (1973). An employee’s action has not lost the
protection of the Act when such conduct was not found to be “deliberately” and/or
“maliciously false”9 or with “malice” or a “deliberate intention to falsify.”10

8 City Disposal Systems, Inc., 465 U.S. 822, 836 (1984).
9 An employee attended a pre-election conference at the Board’s Regional office as a representative of
the union and employees. During the conference, the employer’s attorney acknowledged the Board’s
jurisdiction and confirmed that the employer’s sales and purchases during the prior year exceeded
$500,000. The employer later discharged the employee for deliberately and maliciously spreading a
rumor that the employer made a $500,000 profit the prior year. In finding that the employee was
unlawfully discharged, the Board noted that even if the employee’s report was inaccurate, it was not
deliberately or maliciously false. American Shuffleboard Company, 92 NLRB 1272, 1274 (1951). An
employee’s misstatements in a newsletter to other employees did not lose the protection of the Act
when it was determined that the statements were not deliberately and maliciously false. Jacobs
Transfer, Inc., 201 NLRB 210, 218 (1973).
10 An employee who was active in an organizational campaign made untrue statements to employees
about their wage rates compared to employees at another of the employer’s facilities. The Board found
that the employee’s discussion of wage rates was an integral and important part of the organizational
movement. Additionally, the Board observed that even though the employee failed to carefully
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There is no dispute that Sanford signed Thompson’s name on the grievance without
Thompson’s knowledge or consent. The Company maintains that by doing do, Sanford lost
the protection of the Act. Citing the Board’s decisions in Roadmaster Corporation11 and OPW
Fuel Components12, the Government and the Union argue that a union steward does not lose
the protection of the Act by signing another employee’s name on a grievance submitted to the
employer.

In Roadmaster Corporation,13 a steward was terminated for signing the names of other
individuals to grievance forms and allegedly violating a company rule prohibiting the
falsification of company documents. The steward, who did not deny that he had done so,
maintained that he signed another employee’s name to grievance because he was unable to
contact the employee and he was concerned at the prospect of missing the contractual
deadline for filing grievances. The Board adopted the judge’s finding that the assigned reason
for the suspension and discharge was pretextual and that the real reason the employer took
action against the steward was his involvement in other protected activity outside his
grievance/collective bargaining responsibilities. The Board went on to state however, that had
the employer actually fired the steward for signing other employees’ names to the grievance
forms, his discharge was still unlawful because his actions were protected by the Act. The
steward did not demonstrate intent to deceive the employer and did not stand to profit in any
way from deceiving the employer. Specifically, the Board found that the act of signing other
individuals’ names to the grievance forms was part of the res gestae of the grievance
procedure and not sufficiently egregious to render his grievance-filing activity unprotected.

Just as in this case, the employer in Roadmaster Corporation asserted that by signing
other individuals’ names to the grievance forms, the steward falsified company documents.
The Board rejected the argument and concluded that the grievance forms written on the union
letterhead could not reasonably be considered company documents within the meaning of the
employer’s related rules. Additionally, as in this case, there was no evidence that any
management official had ever previously claimed to the union that grievances became
company documents. In the instant case, Vice President Brandt testified that she was unaware
of any agreement between the Company and the Union confirming that a grievance form is a
Company document.

In analyzing the facts considered by the Board in Roadmaster Corporation and those
facts existent in the present case, there is a distinction. In Roadmaster Corporation, the
employee whose name was signed to the grievance, contacted the steward and asked for his
assistance in obtaining reinstatement. When the steward was unable to reach the employee to
sign the step 2 grievance form, he signed the employee’s name in order to meet the
contractual time limits. In the instant case, there is no dispute that Thompson neither
authorized nor even knew about the grievance on his behalf. I do not, however, find this
investigate the facts, he did not make the inaccurate statements with any malice or deliberate intention
to falsify. Westinghouse Electric Corporation, 77 NLRB 1058, 1060 (1948).
11 288 NLRB 1195, 1197 (1988), enfd. 874 F.2d 448 (7th Cir. 1989).
12 343 NLRB No. 111, slip op. at 5 (2004).
13 Supra at 3.
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factual distinction sufficiently significant to preclude the application of the Board’s findings
in Roadmaster Corporation.

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In OPW Fueling Components, the Board adopted the administrative law judge’s
finding that the employer violated Section 8(a)(1) and (3) of the Act by terminating a union
committeeman for signing a grievance for two employees without their express permission.
Similarly to Sanford, the committeeman obtained authorization from the union and filed the
grievance on the last day on which a contractually timely grievance could be filed. When the
committeeman later learned that the employees were not happy with his having done so, he
voluntarily told the employer that the employees were upset about their names being on the
grievance and he amended the grievance to remove their names. The employer suspended and
later discharged the committeeman for violating a code of conduct and plant rules regarding
falsification of records. Citing the Board’s decision in Roadmaster Corporation, the
administrative law judge found that the committeeman’s act of signing employees’ names to a
grievance was “part and parcel” of the grievance procedure and as such was protected
concerted activity. The committeeman not only acted without authorization of the employees,
he did so without their knowledge and contrary to their wishes. His conduct, however, did not
remove him from the protection of the Act.

While the Company concedes that in general, the filing of a grievance is protected
activity, the Company maintains that “forging a company document for personal gain is not
protected activity.” Citing Washington Adventist Hospital, 291 NLRB 95 (1988), the
Company asserts that conduct can be so egregious or offensive as to be beyond the Act’s
protection. In the case cited by the Company, a pharmacist used a hospital computer system
to publish his concerns about a layoff at the facility. In doing so, the employee not only acted
in violation of a signed security agreement and personnel policy manual, but also disrupted
the work of hospital employees using approximately 100 computers. The Board adopted the
administrative law judge’s finding that such conduct interfered with other employees’ work
and the care of patients in an acute patient care setting. Such conduct was found to be without
the protection of the Act. The Company asserts that Sanford deliberately forged another
employee’s signature on a grievance form “for his own personal benefit” without the
employee’s consent and thus his conduct was sufficiently egregious to remove the filing of
the grievance from the protection of the Act.

I do not find a significant correlation between the circumstances in Washington
Adventist Hospital and the present case. While Sanford acted to preserve the contractual rights
of Thompson, there is no evidence that his actions interfered with the work of other
employees or the functioning of the Company. Additionally, there is no evidence that Sanford
signed the grievance for his own personal benefit. In OPW Fueling Components, supra, at 5,
the administrative law judge found no evidence that the committeeman would, or could, profit
or gain anything from deceiving the employer. In his post-hearing brief, Counsel for the
Company argues that Sanford “committed fraud for Sanford’s own benefit.” Just as in OPW
Fueling Components, there is no evidence that Sanford personally benefited from his alleged
forgery of the grievance. The only acknowledged benefit from the grievance was slowing the
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outsourcing of work.14 Certainly, the protection of work for the bargaining unit and the
enforcement of employee rights under the collective bargaining unit were not only matters of
interest to Sanford, but also Sanford’s responsibility as a union officer. Maintenance Manager
Keeney admitted that while Thompson would stand to gain monetary benefits from the
grievance, he was unaware of any monetary gains for Sanford. Thus, any personal benefit that
Sanford might have derived from slowing the outsourcing of work was only speculative.

In summary, I find that Sanford did not lose the protection of the Act by signing
Thompson’s name on the grievance. I find that he was terminated for his protected concerted
activities in violation of Section 8(a)(1) of the Act.

In most cases the Board applies the criteria set forth in Wright Line, 251 NLRB 1083,
1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982) to evaluate
the lawfulness of an employee’s discharge. Where an employer has admittedly discharged an
employee for engaging in concerted activities and the issue is whether the activity is
protected, a Wright Line analysis is not necessary. Phoenix Transit System, 337 NLRB 510
(2002).

There is no dispute that Sanford was discharged for his conduct associated in filing the
grievance and the Company’s motivation is not in issue. Even though the Wright Line analysis
is not necessary, I would nevertheless also find Sanford’s discharge violative of 8(a)(1) and
(3) of the Act under the framework of Wright Line. Under the Wright Line analysis, the
Government must first prove, by a preponderance of the evidence, that the employee’s
protected or union conduct was a substantial or motivating factor in the employer’s adverse
action. Once the Government makes a showing of discriminatory motivation the burden shifts
to the employer to demonstrate that the same action would have taken place even in the
absence of the protected conduct. To sustain the initial burden, the Government must offer
evidence: (1) that the employee was engaged in protected or union activity, (2) that the
employer was aware of the activity, (3) that the protected activity or the worker’s union
affiliation was a substantial or motivating reason for the employer’s action, and, (4) there was
a causal connection between the employer’s animus and its discharge decision.

As discussed above, Sanford was engaged in activity protected by the Act and he was
terminated for such activity. The Company maintains that because there is no evidence of
animus, the Wright Line analysis must fail. The Government, however, may meet its Wright
Line burden with evidence short of direct evidence of motivation. Motivation of union
animus may be inferred from the record as a whole where an employer’s proffered
explanation is implausible or a combination of factors support circumstantially such an
inference. Union Tribune Publishing Co. v. NLRB, 1 F.3d 486 at 490 to 492 (7th Cir. 1993).
The Government may thus rely on circumstantial evidence from which an inference of
discriminatory motive can be drawn, however, the totality of circumstances must show more

14 In his post-hearing brief, Counsel for the Company asserts that the circumstances of this case are
distinguishable from OPW Fueling Components because Sanford would personally profit by obtaining
more overtime if there is a slowing of the outsourcing of work. While Sanford acknowledged that there
was a benefit in slowing the outsourcing of work, there was no evidence that he would personally
obtain more overtime.
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than a mere suspicion that protected or union activity was a motivating factor in the
employer’s decision. Abramson, LLC, 345 NLRB No. 8, slip op. at 5 (August 26, 2005).

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Under the Wright Line analysis, the Government has established by a preponderance
of the evidence that Sanford was engaged in protected activity, the Company was aware of the
activity, and the Company admittedly terminated Sanford because of his conduct in
conjunction with grievance-filing activity. The Company discriminated against Sanford in
terms of his employment and Sanford’s activity was a substantial or motivating reason for the
Company’s action. The Company has failed to carry its burden (a burden of persuasion) of
establishing its affirmative defense in demonstrating that it would have discharged him in the
absence of any union or protected activity. While the Company maintains that it has
terminated two other employees for dishonesty, the record evidence reflects that such
discharges did not involve comparable conduct. One discharge involved a supervisor’s
instructing an employee to punch another employee’s time card. The other employee, who
was also a non-bargaining unit employee, falsified her own time record by claiming hours she
did not actually work. Unlike Sanford, these employees falsified Company records for their
own personal gain or in violation of Company procedures. As discussed above, I do not find
that in signing Thompson’s name, Sanford fraudulently falsified a Company document for his
personal benefit or gain. Maintenance Manager Keeney admitted that Sanford signed the
grievance in his capacity as a union steward and he admitted that he was unaware of whether
Sanford would gain any monetary benefit from the filing of the grievance. Maintenance
Manager Keeney further admitted that the Union was the employees’ recognized bargaining
representative and there was nothing in the collective bargaining agreement that prohibited a
Union representative from signing a grievance on behalf of an employee. While Maintenance
Manager Keeney asserted that Sanford fraudulently falsified a Company document, he could
not identify the management official who had determined that the grievance was a Company
document. Although the Union and the Company have had a bargaining relationship for over
30 years, there was no evidence of any document designating grievances as Company
documents. There was no evidence that prior to Sanford’s discharge, the Company had ever
asserted that grievances were Company documents. Accordingly, I find that when the
Company suspended Sanford on April 8, 2005 and then discharged him on April 15, 2005, the
Company violated Section 8(a)(3) and (1) of the Act, as alleged. I shall order the Company to
offer Patrick Sanford full reinstatement and to make him whole, with interest.

B. Unilateral Change in the Company’s Drug-Testing Policy

1. Factual Evidence presented by the Parties

The collective bargaining agreement between the Company and the Union for the
period from 2000 until 2003 did not contain any drug-testing policy provisions. As a result of
additional negotiations with the Union, the Company issued a memorandum to employees on
March 5, 2002 containing the guidelines for the Company’s policy for drug-testing. The
policy provided that employees would be sent for drug testing for the following reasons: (1)
aircraft damage, (2) pulling away from aircraft hooked up, (3) pulling away from a fill rack
hooked up, (4) personnel injuries due to significant damage, (5) accidents involving
significant damage, including company equipment and customer equipment, (6) employees
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that smell of marijuana on breath or person, (7) employees that smell of alcohol on breath or
person.

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Lowrance estimated that approximately three to five employees were tested under the
policy between March 5, 2002 and April 2005. During the 2003 collective bargaining
negotiations, the Company proposed three new changes related to the drug-testing policy.
The Company not only proposed that all employees be subject to drug tests for all accidents,
but also proposed the discharge of any employee involved in any aircraft damage. The
Company additionally proposed the implementation of Department of Transportation drug
testing. The Company later withdrew the drug testing proposals. Following the 2003 contract
negotiations and prior to April 2005, the Company continued to operate under 2002 drug
testing policy.

Vice President Brandt is responsible for monitoring the Company’s Workers’
Compensation plan. At the owner’s request, she met with the Company’s Workers’
Compensation representative to improve the “workers’ comp numbers.” The representative
suggested that she implement a policy that would allow the Company to “drug-test”
employees when they returned to work after an absence of 30 days for “anything” including
injuries, sick leave, and Workers’ Compensation. Vice President Brandt admits that she
implemented the policy without discussing the implementation with her own counsel or
anyone.

On April 7, 2005, Lowrance, Nelson, and Union International Representative Joe
Gordon (Gordon) met with Company representatives to discuss the resolution of certain
grievances and other issues. During the course of the meeting, the Company presented the
Union with a memorandum for all personnel. The memorandum provided that when an
employee has an on-the-job injury, the employee will be taken to the clinic for medical
attention. Upon arrival, the employee will also be subject to a drug and alcohol test. The
April 7, 2005 memorandum further provided that employees returning to work after an
absence of 30 days or more for Workers Compensation, Sick leave, or Long Term Disability
would be subject to a drug and alcohol test. Lowrance testified without contradiction that the
April 7, 2005 policy differed from the drug testing policy contained within the March 5, 2002
memorandum.

The memorandum provided for immediate implementation. In a follow-up discussion
on April 8, General Manger Shiflet confirmed to Lowrance that the Company intended to
implement the policy. During the next week, the policy was implemented and the
memorandum was posted for employees in the work area.

In a letter dated April 11, 2005, Local President Nelson informed General Manager
Shiflet that the Union did not concur or agree with the April 7, 2005 memorandum. Nelson
argued that there is nothing in the Texas Workers’ Compensation statutes to give the
Company the right to subject an employee to a drug and alcohol test upon reporting an injury
or to force an employee to seek medical attention from a clinic that the Company deems
appropriate. Nelson asked that the Company rescind the posting and cease and desist from
any application of the policy.

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The Company’s only response to the Union’s letter of April 11, 2005 was a telephone
call from Vice President Brandt to Nelson, confirming that the Company would implement
the policy. On May 10, 2005, the Company issued a memorandum to employees requiring all
employees to submit to a drug test before returning to work when they are absent from work
for 30 days. Prior to the implementation of the drug testing, General Manager Shiflet told
Lowrance that the change was implemented to reduce Workers’ Compensation costs.
Lowrance recalled that in a June 27, 2005 conversation, General Manager Shiflet also told
Lowrance that the Company was implementing the policy because it had not been able to get
the changes from the Union in negotiations.

Nelson recalled that during a telephone conversation in July 2005, he asked Vice
President Brandt if she would meet with the Union to discuss negotiating a drug testing
policy. She agreed and met with Nelson on August 11. Vice President Brandt acknowledged
that she and General Manager Shiflet met with Nelson, Lowrance, and Gordon after the
implementation of the policy to determine if they could work out something amenable to both
parties. Both Nelson and Vice President Brandt testified that no agreement was reached
during the meeting.

Lowrance testified that both the April 7, 2005 and May 10, 2005 policies have
remained in effect since implementation. Lowrance estimated that more than 25 to 30
employees have been subjected to drug tests under the 2005 policies. Lowrance testified that
four employees have been disciplined under the new policies. He asserted that none of the
individuals would have been subject to drug testing under the 2002 policy.

2. Summary and Conclusions

An employer violates Section 8(a)(5) and (1) of the Act if it makes a unilateral change
in wages, hours, or other terms and conditions of employment without first giving the union
notice and an opportunity to bargain. See NLRB v. Katz, 369 U.S. 736, 743 (1962). The
Company admits that it implemented the April 7, 2005 and May 10, 2005 guidelines for
employee drug-testing without notice to or bargaining with the Union. Counsel for the
Company further acknowledges that the Company made a mistake in instituting the April
change. In Johnson-Bateman Co., 295 NLRB 180 (1989), the Board found an employer’s
mid-contract unilateral implementation of a drug/alcohol testing requirement for employees
requiring medical treatment for work injuries to be a mandatory subject of bargaining. In its
decision, the Board noted that in Ford Motor Co. v. NLRB, 441 U.S. 488 (1979), the Supreme
Court described mandatory subjects of bargaining as such matters that are “plainly germane to
the ‘working environment’”and “not among those ‘managerial decisions, which lie at the core
of entrepreneurial control.’” Utilizing the Court’s description, the Board found the
drug/alcohol testing requirement to be “both germane to the working environment and outside
the scope of managerial decisions lying at the core of entrepreneurial control.”

While the Company admits that it implemented the 2005 drug-testing policy without
notice to or bargaining with the Union, it asserts that Vice President Brandt made a mistake.
In brief, the Company further argues that Vice President Brandt exhibited no Union animus
and there was no “intentional conduct focused to harm the Union.” Accordingly, the
Company argues that the 8(a)(5) charge be dismissed. I find no merit to the Company’s
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argument. The fact that an employer may be motivated by economics rather than union
animus does not excuse its failure to bargain with a union as the exclusive representative of its
employees prior to the implementation of a unilateral change in the terms and conditions of
employment. Sweet Lumber Company, 227 NLRB 1084, fn. 1 (1977).

At hearing, the Company also argued that two employees who have been terminated
since the implementation of the policy would have been terminated under the 2002 policy. In
its decision in Storer Communications, Inc., 297 NLRB 296, 297 (1989), the Board found that
an employer’s unlawful unilateral change in a drug testing policy is not “redeemed by the
fortuity” that the employer did not cause any unit employees to submit to a drug test for
several months after the announced implementation. Despite the degree to which the policy
was exercised, the employer, nevertheless, claimed the right to require such a test at any time.

It is established that under certain circumstances, a respondent may avoid liability for
unlawful conduct by repudiating the conduct. The repudiation must be timely, unambiguous,
and specific in nature to the coercive conduct. Passavant Memorial Hospital, 237 NLRB 138
(1978). Furthermore, there must be adequate publication of the repudiation to the employees
involved. Pope Maintenance Corporation, 228 NLRB 326, 340 (1977), enfd. 573 F.2d 898
(5th Cir. 1978). While the Board has more recently stated that it did not necessarily endorse
all elements of Passavant, it has nevertheless continued to consider the means by which a
respondent has attempted to cure its unlawful conduct.15 Here, there is no evidence that the
Company made any attempt to repudiate or even to rescind its unilateral change in the drug-
testing policy.

I find that the Company, as alleged in the complaint, unilaterally changed its drug-
testing policy on April 7, 2005 and May 10, 2005. The Company did so without giving notice
to the Union and without giving the Union an opportunity to bargain with respect to this
conduct. And as such, its actions violated Section 8(a)(1) and (5) of the Act.

Conclusions of Law

1. The Company, Allied Aviation Fueling of Dallas, LP, is an employer engaged
in commerce within the meaning of Section 2(2), (6) and (7) of the Act.

2. The Transport Workers Union of America, Air Transport Local 513 is a labor
organization within the meaning of Section 2(5) of the Act.

3. The Company violated Section 8(a)(1) and (3) of the Act by suspending
employee Patrick Sanford on April 8, 2005, and by discharging him on April 15, 2005.

4. The Company violated Section 8(a)(1) and (5) of the Act by unilaterally
implementing a change in its drug-testing policy for its employees on April 7, 2005 and May
10, 2005.

15 North Hills Office Services, Inc., 344 NLRB No. 134, slip op. at fn. 11 (2005); Claremont Resort, Inc.,
344 NLRB No. 105, slip op. at 1 (2005).
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5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.

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Remedy

Having found the Company has engaged in certain unfair labor practices, I find it must
be ordered to cease and desist and take certain affirmative action designed to effectuate the
policies of the Act. Specifically, the Company having discriminatorily suspended and
discharged its employee Patrick Sanford, it must offer him immediate reinstatement to his
former job or if his former job no longer exists to a substantially equivalent position without
prejudice to his seniority or other rights and privileges previously enjoyed and make him
whole for any loss of wages and benefits. Back pay shall be computed as prescribed in F.W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).

Having found that the Company unlawfully implemented a change in its drug-testing
policy on April 7, 2005 and May 10, 2005, I shall recommend it be ordered, on request, to
cancel, withdraw, and rescind the policy and remove from the files of employees notices,
reports, or memoranda resulting from the application of unilaterally implemented changes in
the drug-testing policy. Finally, I recommend the Company also be ordered to post, within 14
days after service by Region 16, at its Dallas-Fort Worth, Texas, facility copies of an
appropriate “Notice to Employees” copies of which are attached hereto as “Appendix” for a
period of 60 consecutive days in order that employees may be apprised of their rights under
the Act and the Company’s obligation to remedy its unfair labor practices.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended:16

ORDER

The Company, Allied Aviation Fueling of Dallas, LP, its officers, agents, successors,
and assigns shall:

1. Cease and desist from:

(a) Suspending and/or terminating employees because they engage in
protected concerted activities and/or activities on behalf of the Transport Workers Union of
America, air Transport Local 513 or any other union.

(b) Changing its drug-testing policy as it applies to the employees in the
following appropriate unit without first giving notice to the Union and affording the Union the
opportunity to bargain over the proposed changes:

16 If no exceptions are filed as provided by §102.46 of the Board's Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in §102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
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All employees engaged in the fueling service of the company and other related
aircraft services, including the operation and maintenance of the facilities at
Love Field, Dallas, Texas, and the Dallas/Fort Worth International Airport,
Texas.

(c) In any like or related manner, interfering with, restraining or coercing
employees in the exercise of rights guaranteed them by the Act.

2. Take the following affirmative action necessary to effectuate the policies of the
Act:

(a) Within 14 days from this Order, offer Patrick Sanford 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 and privileges previously enjoyed. Make Patrick
Sanford whole for any loss of earning and other benefits suffered as a result of the
discrimination against him, in the manner set forth in the remedy section of the decision.

(b) Within 14 days from this Order, remove from its files any reference to
the unlawful suspension and termination issued to Patrick Sanford, and within 3 days
thereafter notify Patrick Sanford in writing that this has been done and that the termination
will not be used against him in any way.

(c) On request, cancel, withdraw, and rescind its unilaterally implemented
drug-testing policy that was announced on April 7, 2005 and May 10, 2005 and notify
employees of this action.

(d) Make whole any unit employees who have been disciplined pursuant to
the unlawfully implemented drug testing policies of April 7, 2005 and May 10, 2005 for any
loss of earnings and other benefits suffered as a result of the unlawfully-implemented policy,
in the manner set forth in the remedy section of this decision.

(e) Within 14 days from the date of this Order, remove from its files any
reference to the unlawful discipline, including any copies of the drug test results, and within 3
days thereafter notify the employees that this has been done and that the discipline will not be
used against them in any way.

(f) Offer those employees discharged as a result of the unilateral changes
in the drug testing policies 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 loss of earnings and other
benefits suffered as a result of the unilateral changes in the drug testing policy.

(g) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic copy of the
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records if stored in electronic form, necessary to analyze the amount of backpay due under the
terms of this Order.

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(h) Within 14 days after service by the Region, post at its facility in Dallas-
Fort Worth, Texas, copies of the attached notices, marked “Appendix.”17 Copies of the
notice, on forms provided by the Regional Director for Region 16, after being signed by the
Company's authorized representative, shall be posted by the Company immediately upon
receipt and maintained for 60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable steps shall be taken to ensure
that the notices are not altered, defaced, or covered by any other material. In the event that,
during the pendency of these proceedings, the Company has gone out of business or closed
the facility involved in these proceedings, the Company shall duplicate and mail, at its own
expense, a copy of the “Notice to Employees” to all employees employed by the Company at
any time since April 7, 2005.

(i) Within 21 days after service by the Region, file with the Regional
Director a sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Company has taken to comply.

Dated at Washington, DC

________________________________
William N. Cates
Associate Chief Judge

17 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice
reading “POSTED BY ORDER OF THE 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.”

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APPENDIX

NOTICE TO EMPLOYEES

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Posted by the Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.

WE WILL NOT suspend and/or terminate employees because they engage in activities in
support of Transport Workers Union of America, Air Transport Local 513 or any other labor
organization.

WE WILL NOT unilaterally change the drug-testing policy for our employees in the
collective bargaining unit represented by the Transport Workers Union of America, Air
Transport Local 513 without notice to and bargaining with the Union.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce you in the in
the exercise of your Section 7 rights.

WE WILL, within 14 days of the Board’s Order, offer Patrick Sanford 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.

WE WILL make Patrick Sanford whole for any loss of earnings and other benefits resulting
from his suspension and termination, less any net interim earnings, plus interest.

WE WILL, within 14 days of the Board’s Order, remove from our files any reference to
Patrick Sanford’s unlawful suspension and termination, and WE WILL within 3 days
thereafter, notify him in writing that this has been done and that the termination will not be
used against him in any way.

WE WILL, upon request, cancel, withdraw, and rescind the drug-testing policy that we
unilaterally implemented on April 7, 2005 and May 10, 2005.

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WE WILL make whole any employees who have been disciplined under the unilaterally
implemented drug-testing policies for any loss of earnings and other benefits resulting from
their discharge.

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WE WILL offer full reinstatement to those employees who have been discharged under the
unilaterally implemented drug-testing policies to their former jobs, or, if those jobs no longer
exists, to substantially equivalent positions, without prejudice to their seniority or any other
rights or privileges previously enjoyed.

WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to any discipline administered under the unilaterally implemented drug-testing
policies of April 7, 2005 and May 10, 2005.

ALLIED AVIATION FUELING OF DALLAS, LP 15
(Employer)

Dated: By:
(Representative) (Title)
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The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and
how to file a charge or election petition, you may speak confidentially to any agent with the
Board’s Regional Office set forth below. You may also obtain information for the Board’s
website: www.nlrb.gov.

819 Taylor Street, Room 8A24, Fort Worth, TX 76102-6178
(817) 978-2921, Hours: 8:15 a.m. to 4:45 p.m. 30
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THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE.
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND MUST NOT BE ALTERD, DEFACED, OR COVERED BY
ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER, (817) 978-2925.

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