Intrepid Museum Fundation

National Labor Relations Board - Board Decisions

Aug 22, 2001

335 N.L.R.B. 1 (N.L.R.B. 2001)

INTREPID MUSEUM FOUNDATION 1
Intrepid Museum Foundation, Inc. and Local 1909,
International Longshoreman’s Association. Case
2–CA–30347
August 22, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN AND TRUESDALE
On November 12, 1998, Administrative Law Judge
Steven Fish issued the attached decision. The General
Counsel filed exceptions, a supporting brief, an answer-
ing brief to the Respondent’s exception, and a brief in
reply to the Respondent’s answering brief. The Charging
Party filed exceptions and a supporting brief. The Re-
spondent filed an exception, and a brief supporting its
exception and answering the General Counsel and the
Charging Party’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs1 and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order.
The Charging Party excepts to the judge’s finding that
the Respondent did not violate Section 8(a)(5) of the Act
by reissuing its drug testing policy on January 27, 1997,
and by discharging employee James Harty for failing the
drug test administered pursuant to the reissued policy.
Contrary to our dissenting colleague, we agree with the
judge’s findings.3

1 In its brief, the Respondent contends that the General Counsel’s
exceptions should be rejected as untimely because they were post-
marked December 10, rather than December 9, 1998, the date that
exceptions had to be mailed in order to be timely under Sec. 102.46 of
the Board’s Rules. We find no merit to the Respondent’s contention.
Counsel for the General Counsel submitted affidavits advising the
Board that the exceptions and supporting brief were placed in the Re-
gion’s outgoing mailbox on December 9, 1998, at 4:40 p.m., and were
picked up by the Region’s mail service at 5 p.m. that same day. Fur-
ther, the affidavit of the mail manager for the Region’s mail service
explained that due to unforeseen complications there have been occa-
sions when the service failed to postmark the mail it has picked up until
the following day. In view of these affidavits, we find that the General
Counsel made a good-faith effort to place the exceptions and brief in
the mail in a timely manner, and accordingly we shall accept them as
timely filed.
2 The Respondent and the Charging Party have excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
3 We also adopt the judge’s findings, for the reasons set forth in his
decision, that the Respondent did not unilaterally change the 1990 drug
testing policy by its decision to administer drug tests to unit employees
on February 12, 1997, pursuant to the republication of the 1990 policy
on January 27, 1997. The policy and the decision were based on the
Respondent’s reasonable belief that the employees were using drugs.
We do, however, agree with the judge that the Respondent’s an-
nouncement of random testing of bargaining unit employees—pursuant
to its February 5 memo—did constitute a unilateral change of the 1990
policy, in violation of Sec. 8(a)(5) of the Act. Although Harty was
tested on February 12, this was pursuant to the 1990 policy.
Beginning in 1989, the Respondent and the Union had
discussions about drug use among the Respondent’s em-
ployees. In December 1990, Donald Francis, the Re-
spondent’s vice president,4 drafted a drug testing policy.
After the draft policy was reviewed and approved by the
Respondent’s attorney, Francis gave a copy of the policy
to shop steward Kevin Kennedy, and told Kennedy to
show it to Union President John Potter and to get back to
Francis if there was a problem with it. A couple of days
later, Kennedy told Francis that he and Potter had re-
viewed the document and that it was “fine just the way it
is.” Francis responded that Kennedy should make sure
the entire crew sees the policy. Thereafter, Francis
posted the notice of the drug testing policy in his office,
on the Respondent’s official bulletin board, and in the
locker room used by the maintenance employees repre-
sented by the Union.
The 1990 policy—which was not referenced in subse-
quent collective-bargaining negotiations—gives the Re-
spondent the “right to require employees” to undergo
drug testing if the Respondent has reason to believe the
employee has violated the Respondent’s drug testing
rules. The record shows, though, that the Respondent
did not exercise its right to test unit employees when it
received a report sometime in 1995 that a maintenance
unit employee was using drugs, preferring to try to catch
the employee in the act. Similarly, the Respondent de-
clined—for financial reasons—to administer drug tests to
employees on receiving a report in February 1996 that
drug paraphernalia was found in areas frequented by unit
employees.5 The Respondent discovered further evi-
dence of drug use in the fall of 1996, and in December
decided to test its employees.
In January 1997, the Respondent drafted a document
reissuing the Respondent’s drug testing policy. Except
for a few minor and insignificant language changes, the
document was identical to the 1990 policy. The Respon-

In adopting the judge’s finding that the Respondent did not violate
Sec. 8(a)(5) of the Act by discharging Harty, Chairman Hurtgen finds it
unnecessary to pass on the judge’s finding that Harty was not a statu-
tory supervisor.
4 Francis has been employed by the Respondent in various capacities
for over 15 years, including his present position as senior vice president
for operations and deputy director.
5 In 1995 or 1996, the Respondent received a report that its managers
were using drugs, and thereafter tested a majority of its management
and salaried personnel for drugs.
335 NLRB No. 1
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
dent gave copies of the policy to the Union’s current
shop steward, Colin Payne, and asked Payne to make
sure all the employees see it and to let the Respondent
know if he had any problems with it. The following day,
Payne told the Respondent that he had no problem with
the policy because “it’s the same thing we’ve had all
along,” and that “it’s the same thing that you wrote way
back when.”
On February 6, 1997, the Respondent distributed the
January 27 document to its unit employees, and had them
sign a sheet indicating they had received, read, and un-
derstood the document. Later that day, the Respondent
distributed another document informing unit employees
that they would be taking a drug test. On February 12,
the Respondent administered the drug test, and thereafter
discharged employee James Harty for failing the drug
test.
The judge found that the Respondent’s reissuance of
its 1990 policy did not violate Section 8(a)(5) of the Act.
In so finding, the judge rejected the General Counsel’s
contention that the Respondent’s failure to test employ-
ees until 1997 demonstrates that the 1990 drug testing
policy was never implemented. The judge found the
failure to test prior to 1997 was not significant in the
absence of any evidence that the Respondent had dis-
avowed or rescinded its policy.
The judge also found inapplicable cases where the
Board found that an employer’s more stringent enforce-
ment of its work rules violates Section 8(a)(5),6 because
unlike those cases, the instant record fails to show that
the Respondent affirmatively tolerated the conduct pro-
hibited by the existing rule. Rather, the judge found that
in the two previous periods—in 1995 and in early
1996—when the Respondent suspected drug use among
its employees, the Respondent decided not to exercise its
right to test, preferring in one instance to try to catch the
suspected employee in the act, and determining in the
second instance not to test for financial reasons. Accord-
ingly, the judge found that despite the failure to drug test
employees prior to 1997, the Respondent’s 1990 drug
testing policy had been implemented and remained effec-
tive at the time the policy was reissued and unit employ-
ees were tested in 1997. We agree with these findings.
In finding that the Respondent’s reissuance of its drug
testing policy violated Section 8(a)(5), our dissenting
colleague contends that the 1990 policy was never im-
plemented and/or was allowed to lie dormant until 1997.
The dissent begins by questioning the judge’s credibility

6 Hyatt Regency Corp., 296 NLRB 259, 263–264 (1989); Burns
Electronic Security Services, 245 NLRB 742, 764–766 (1979); Bryant
& Stratton Institute, 321 NLRB 1007, 1021–1022 (1996); and Blossom
Nursing Center, 299 NLRB 333, 341 (1990).
resolutions that form the basis of the finding that the Re-
spondent and the Union agreed to this policy in 1990.
Further casting doubt as to its implementation, in our
colleague’s view, is the fact that the drug testing policy
was not referred to in subsequent collective-bargaining
agreements, and that neither Anthony Aversa, who be-
came the Union’s president in 1992, nor Union Attorney
Herzl Eisenstadt, testified that they were aware of the
policy. Most significant, according to our colleague, is
the fact that the Respondent had not tested employees
prior to February 1997. The dissent finds from these
facts that the reissuance of the drug testing policy, and
the subsequent drug testing and discharge of Harty, vio-
lated Section 8(a)(5).
At the outset, we note that while “assuming” that the
Respondent and the Union engaged in collective bargain-
ing over the drug testing policy in 1990, the dissent nev-
ertheless goes to great lengths to express doubt about the
judge’s finding in this regard because it is based on the
“uncorroborated” testimony of Donald Francis, who tes-
tified that after showing the proposed policy to shop
steward Kennedy, Kennedy told him that Union Presi-
dent Potter said it was “fine just the way it is.” The
judge fully credited Francis’ testimony on this point, and
the fact that neither Kennedy (no longer employed by the
Respondent) nor Potter (deceased) testified in this pro-
ceeding is not a sufficient basis for disturbing the judge’s
credibility finding. We find baseless our colleague’s
apparent contention that there is a cloud of doubt over
this fully credited testimony.
Second, we disagree with our colleague’s selective re-
liance on the testimony of Aversa and Eisenstadt with
regard to their lack of knowledge of the policy, and on
our colleague’s heavy reliance on the lack of evidence
that drug testing was an issue in subsequent contract ne-
gotiations. The dissent relies on this evidence as estab-
lishing that the policy was never implemented, but virtu-
ally ignores the testimony of Francis on this point, who
testified that he posted the policy on the bulletin board,
in the locker room used by the unit employees and in his
office, that he told Kennedy to make sure the entire crew
sees it, and that in 1997 shop steward Payne acknowl-
edged that the reissued policy was “the same thing we’ve
had all along.” Having credited this testimony, the judge
reasonably found that the 1990 policy was indeed im-
plemented. The evidence relied on by the dissent clearly
does not warrant a contrary finding.
Finally, we cannot agree with the dissent that the lack
of previous drug testing of unit employees7 demonstrates
7 As noted above, the Respondent required its managerial employees
to undergo drug testing in 1995 or 1996. While this fact does not estab-
lish the existence of a drug testing policy for unit employees during this
INTREPID MUSEUM FOUNDATION 3
either a failure to implement the 1990 policy or at least
an established practice of nonenforcement. Although our
colleague contends that the Respondent failed to apply
the drug testing policy over a long period of time, our
colleague’s argument concerns only two instances when
the Respondent suspected drug use among unit employ-
ees and did not conduct a drug test. In one instance, in
1995, the Respondent opted to try catching the employee
in the act. In the other instance, in February 1996, the
Respondent decided not to test for financial reasons. The
Respondent’s decision not to test in those instances is not
in contradiction to the policy, because the policy does not
require the Respondent to conduct drug testing on suspi-
cion of employee drug use; it merely gives the Respon-
dent the “right” to do so in such circumstances. Thus,
that the Respondent chose not—in just two instances—to
exercise this apparently expensive option is insufficient
to demonstrate that the policy was not implemented, or
that it was abandoned or rescinded. To find otherwise
would require an interpretation of the policy that obli-
gates the Respondent to test employees in every instance
rather than giving it the right to do so upon suspicion.
We find nothing in the language of the policy that would
support such an interpretation.8
In sum, we find, contrary to our colleague and in
agreement with the judge, that the Respondent’s reissu-
ance of its drug testing policy in 1997 constituted notifi-
cation to its employees of an existing policy, and thus it
did not constitute a change in terms and conditions of
employment of unit employees. Accordingly, we adopt
the judge’s finding that the Respondent did not violate
the Act by reissuing this policy, or by discharging em-
ployee James Harty for failing the drug test administered
pursuant to this policy.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Intrepid Museum Founda-
tion, Inc., New York, New York, its officers, agents, suc-

period, it does show that the Respondent had not abandoned the 1990
policy insofar as it applied to other personnel.
8 Thus, neither Hyatt Regency Corp., supra, nor Burns Electroninc
Security Services, supra, relied on by the dissent, is applicable. In both
cases, the employers violated Sec. 8(a)(5) by more stringently enforc-
ing work rules after many years of continuous nonenforcement or lax
enforcement. Conversely, the instant case involves two instances
where the drug testing option was not exercised, and the Respondent
articulated its rationale for the decisions not to test.
Further, because we do not agree with the dissent’s contention that
the drug testing policy had become dormant or had otherwise been
rescinded, we find no merit to the dissent’s attempt to distinguish the
cases relied on by the judge on the ground that they did not involve
enforcement of rules that had become dormant or effectively rescinded.
cessors, and assigns, shall take the action set forth in the
Order.

MEMBER LIEBMAN, dissenting in part.
Unlike my colleagues, I would find that the Respon-
dent violated Section 8(a)(5) and (1) of the Act not only
by unilaterally changing its drug testing policy on Febru-
ary 5, 1997, without notifying and bargaining with the
Union, but also by “reissuing” its drug testing policy on
January 27, 1997, and by discharging employee James
Harty on February 20, 1997. I would also find, therefore,
that the drug test of all unit employees on February 12,
1997, was unlawful as a result of the unlawful changes in
the drug testing policy.
For the purpose of this decision, I accept the judge’s
finding that the Respondent and the Union reached an
agreement on drug testing in December 1990. But I
would find that the Respondent acted unlawfully by fail-
ing to notify and bargain with the Union before “reissu-
ing” the 1990 policy on January 27, 1997, and applying it
in February 1997.
The proper resolution of the complaint allegations
turns on whether the drug testing policy issued in 1990
was actually implemented or, rather, was allowed to lie
dormant until 1997. Thus, the record evidence concern-
ing the issuance of the 1990 policy and notice to employ-
ees of the policy is material here. The record shows, in
turn, that even assuming it was collectively bargained,
the policy remained obscure and unused.
The finding that the drug testing policy was issued in
1990 rests entirely on the uncorroborated testimony of
Donald Francis, who has been employed by the Respon-
dent in various capacities for 15-1/2 years, including his
present position as senior vice president for operations
and deputy director. Francis, one of three representatives
for the Respondent present at contract negotiations in
1990, admitted that there was no agreement on drug test-
ing in those negotiations. He further testified that no
joint labor-management committee was formed on the
subject of drug testing; instead, he formed a so-called
committee consisting of himself and an unnamed attor-
ney for the Respondent. Francis drafted the policy,
which was reviewed and approved by the attorney.
Francis then gave a copy of the policy to then shop stew-
ard Kevin Kennedy and told him to show it to then Un-
ion President John Potter. A couple of days later, Francis
asked Kennedy whether Potter had looked at the docu-
ment; Kennedy responded, “[I]t’s fine just the way it is.”
Based on Francis’ testimony, the judge concluded that
the Union had agreed to the drug policy in 1990. Yet, at
the time of the hearing in this case, Kennedy was no
longer employed by the Respondent and did not testify,
and Potter was deceased. In other words, whether an
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4
agreement was reached over a drug policy in 1990 turns
on the contact between a dead man and a missing man
and on the missing man’s relaying a message. Because
the judge credited a live man (Francis) that this chain of
communications took place, I will assume that this was
collective bargaining, although it certainly stands in con-
trast to the usual course of the parties’ dealings with each
other, which involved much more than going through the
motions of bargaining.
Not surprisingly, given its unusual origins, the drug
testing policy was not widely disseminated. It was not
attached to the collective-bargaining agreement executed
that same month in 1990. It was not referred to during
the negotiations for the contract executed by the parties
in 1994 or for the contract extension in 1996. Anthony
Aversa, the Union’s president since 1992, testified that
he was unaware of the policy, as did Herzl Eisenstadt,
the Union’s attorney throughout this period, who did not
see a copy until 1997. The policy was not mailed or oth-
erwise distributed to any union officer. There is scant
evidence showing that the policy was distributed to un-
ion-represented employees or posted at Respondent’s
facility at any point.1 It was not included in an employee
handbook or comparable document. That the drug testing
policy remained so obscure strongly suggests that it was
never implemented, despite being issued.
More significantly, it is undisputed that no drug testing
was performed between December 1990 and February
1997. The policy was first applied to the maintenance
unit employees on February 12, 1997. Thus, the evi-
dence establishes that the drug testing policy remained a
dead letter for more than 6 years.
The failure to implement the policy cannot be ex-
plained by a lack of opportunity to apply it. The testi-
mony of its own witnesses shows that the Respondent
not only suspected, but also had evidence of, drug use by
employees. The Respondent suspected employees of
drug use in 1995, based both on employee reports and
managerial observation of one employee’s behavior. It
began to see more evidence of drug use in February
1996. A managerial employee (Scott Koen) discovered
increasing amounts of drug paraphernalia (pipes, mari-
juana cigarette butts, and marijuana containers) in
monthly inspections of the fifth deck area. Francis found
rolling paper in a pickup truck, and Koen found crack
vials, crack pipes, and other paraphernalia on the fifth

1 Francis testified that he posted the notice in his office and on the
official bulletin boards of the Respondent’s museum. Scott Koen, an
employee in 1990 and the Respondent’s assistant director of operations
at the time of the hearing, testified that he did not recall seeing a copy
of the policy posted anywhere at the Respondent’s museum. No other
employee testified about receiving notice of the policy.
deck. Both Francis and Koen were both told by an em-
ployee of extensive drug use on board the ship; specific
names were provided. Despite these overt grounds for
suspicion, the Respondent took no steps to implement the
policy.
The Respondent asserted that it performed no drug
tests in connection with the incidents in 1995 because it
wanted to try to catch someone in the act and that it per-
formed no drug tests in connection with the incidents in
1996 for financial reasons. Even accepting these expla-
nations, the fact remains that drug testing was never con-
ducted. From an employee’s perspective, then, the pol-
icy remained invisible. For more than 6 years, it had
never been implemented. How an employee hired during
this period would have learned of the policy, which even
union officials were unaware of, is unclear.
Given the record, there is little or no basis for the
judge’s finding that the Respondent’s action on January
27, 1997, was merely a reminder to employees of an ex-
isting policy and that the Respondent thus had no obliga-
tion to bargain with the Union over this step—more ac-
curately described as a resurrection of the drug policy,
than as a reissuance.
The judge’s finding rests heavily on his view that the
Respondent did not tolerate or condone any infractions of
the rules. The record shows, however, that the Respon-
dent had evidence of drug use at the facility and yet con-
ducted no drug testing. The failure to test is doubly
damaging because the drug testing policy was both a rule
of conduct and the procedure or method for determining
whether misconduct occurred. Thus, the Respondent’s
failure to apply the policy over a long period of time—
given the corresponding failure to establish that employ-
ees knew of its existence—was an implicit rescission of
the policy. In short, the Respondent’s failure to imple-
ment and enforce the policy became the practice over
time.
The cases that the judge chose to follow in reaching a
different conclusion are all readily distinguishable.2 By
2 Storer Communications, Inc., 297 NLRB 296 (1989), did not turn,
as does this case, on whether a long dormant policy could be resur-
rected without first bargaining with the union. Similarly, the cited lan-
guage in Bath Iron Works Corp., 302 NLRB 898, 901 fn. 12 (1991),
addresses, under deferral principles, whether a clear and unmistakable
waiver occurred. Sygma Network Corp., 317 NLRB 411 (1995), and
Mitchellace, Inc., 321 NLRB 191 (1996), turned on uniform or dispa-
rate enforcement of rules, the existence of which were not in issue.
Kroger Co., 311 NLRB 1187 (1993), involved the dismissal of an
allegation for a simple failure of proof. Two last cases involve facts
sharply in contrast with this case. Markle Mfg. Co., 239 NLRB 1142,
1147 (1979) (no contention that safety rules became dormant or were
otherwise rescinded; safety posters displayed throughout plant con-
veyed same message); North Kingstown Nursing Care Center, 244
INTREPID MUSEUM FOUNDATION 5
contrast, the two decisions cited to the judge by the Gen-
eral Counsel—which the judge initially acknowledged
“appear on their face to be persuasive”—bear a more
direct relationship to the fact pattern in this case. Both
cases involved longstanding rules that, without notice to
or bargaining with the union, were suddenly more strictly
enforced.
In Hyatt Regency Corp., 296 NLRB 259 (1989), the
Board found a violation of Section 8(a)(5) when the em-
ployer more stringently enforced timesheet rules after a
representation election and subsequently discharged 12
employees. Thus, the Board emphasized the marked
departure from the employer’s preelection practice of lax
enforcement, which prevailed over 6-1/2 years and in-
cluded no enforcement at all in the 7 months preceding
the election. Id. at 263–264. Similarly, in Burns Elec-
tronic Security Services, 245 NLRB 742, 764–766
(1979), the Board found that lax enforcement, over 4
years, of a rule requiring employees to carry a gun or
night stick required the employer to bargain with the
Union before posting and enforcing the rule. The Re-
spondent’s conduct here was clearly comparable.
For these reasons, I find that, by failing to implement
the 1990 drug testing policy and by allowing it to lay
dormant for more than 6 years, the Respondent estab-
lished a practice of nonenforcement. Consequently, the
Respondent had an obligation to notify and bargain with
the Union before it reissued the drug testing policy and
conducted the drug tests in 1997. By failing to do so, the
Respondent violated Section 8(a)(5) and (1) of the Act.

Ian Penny, Esq., for the General Counsel.
Donald C. Moss, Esq. (Moss & Moss, LLP), of New York, New
York, for the Respondent.
Herzl Eisenstadt, Esq. (Gleason & Mathews, P.C.), of New
York, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
STEVEN FISH, Administrative Law Judge. Pursuant to
charges filed by Local 1909, International Longshoremen’s
Association (the Union) the Director for Region 2 of the Na-
tional Labor Relations Board (the Board) issued a complaint
and notice of hearing on November 26, 1997,1 alleging that the
Intrepid Museum Foundation, Inc. (Respondent) has violated
Section 8(a)(1) and (5) of the Act by in substance “reissuing” a
drug policy on January 27, with respect to drug testing of em-
ployees, conducting a drug test of all unit employees on Febru-
ary 12, and by discharging employee James Harty on February
20, as a result of such testing, without prior notice to or bar-

NLRB 54, 66 (1979) (performance evaluation program instituted before
union was certified; implementation simply effectuated the program).
1 All dates hereinafter referred to are in 1997, unless otherwise indi-
cated.
gaining with the Union. The trial with respect to the allegations
raised by the complaint was heard before me in New York,
New York, on May 11 and 12, 1998.
Briefs have been filed and have been carefully considered.
Based on the entire record,2 including my observation of the
demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent, a nonprofit corporation located in New York,
New York, has been engaged in the business of educating the
public about and preserving World War II era naval vessels and
aircraft. Annually, Respondent generates gross revenues in
excess of $1 million and purchases and receives at its facility,
goods and materials valued in excess of $5000 directly from
points located outside the State of New York.
It is admitted and I so find that Respondent is and has been
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
It is also admitted, and I so find that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. FACTS
A. Background
Respondent is a not-for-profit corporation that operates a
floating museum of recent military history and space explora-
tion. The Intrepid and two other display ships are anchored off
the West Side piers, where they exhibit aircrafts and artifacts.
Six boats and barges, all operating in navigable waters, and
heavy machinery, like hoists, forklifts, and an aircraft tug are
operated by employees.
The Museum, during its summer schedule, is opened from 10
a.m. to 5 p.m., Monday through Friday and 10 a.m. to 6 p.m. on
Saturdays and Sundays. During the winter schedule, it is
closed on Monday and Tuesday.
It employs approximately 120 employees, including an op-
erations department consisting of between 52 and 60 employees
divided into three divisions; maintenance, engineering, and
security. The maintenance division consists of nine employees,
who have been represented by the Union since the 1980s.
Major General Donald Ray Gardner is the president and
CEO of Respondent and has been in that position since Sep-
tember 19, 1996. Donald Francis, who has been employed by
Respondent in various capacities for 15-1/2 years, including his
present positions of senior vice president for operations and
deputy director, directly oversees the three branches of the
operations department.
Reporting directly to Francis is Scott Koen who is the assis-
tant director of the operations department and is the “direct
supervisor” of the maintenance employees. Both Francis and
Koen work the same hours, 7:30 a.m. to 6 p.m. but Francis
2 While every apparent or nonapparent conflict in the evidence may
not have been specifically resolved below, my findings are based on my
examination of the entire record, my observation of the witnesses’
demeanor while testifying and my evaluation of the realibility of their
testimony. Therefore, any testimony in the record which is inconsistent
with my findings is discredited.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6
works Monday through Friday, and Koen Sunday through
Thursday.
B. Alleged Supervisory Status of James Harty
James Harty was one of three foremen employed by Respon-
dent in the maintenance unit. He was the foreman for week-
days, and he worked Monday through Friday from 8 a.m. to 4
p.m.. David Mentez served as weekend foreman, and Colin
Payne as substitute foreman, where it is necessary to have an
additional foreman.
All three foremen perform essentially the same functions
when they serve in that position, and the foreman has always
been covered under the contract as a member of the bargaining
unit. Indeed the job is listed in the schedule of wages as “su-
pervisor” with an extra $3-per-hour salary over the mainte-
nance workers. However, the category of timekeeper has the
same hourly salary as the supervisor.”
The number of employees under Harty’s supervision, varied
from four on Mondays and Fridays to six on Tuesdays, and
eight on Wednesdays and Thursdays. His supervision of these
other members of the crew consists of assigning them work,
making sure that assignments are completed, and at times, in-
structing employees on how to perform their work.
In this regard, however, from 8 to 10 a.m. (before the Mu-
seum opens), the maintenance employees generally have the
same identical jobs to perform which do not change. In fact,
most of these jobs had been assigned before Harty became
foreman, and he did not change the assignments. When an
employee left, Harty simply slotted in the replacement to per-
form the same tasks as the former employee. During this pe-
riod of time, Harty would either assist the crew in cleaning if it
was shorthanded, or took care of deliveries that came in. In
such a situation, Harty would receive a call that a delivery came
in, and then bring it up on the lift, check and sign for the order,
and then ask either Koen or Francis where the item should go.
After 10 a.m. and until the end of the shift, the crew performs
general cleaning, moves boxes, loads and unloads deliveries, and
moves exhibits from place to place. When an order came to
Harty for maintenance workers to perform these tasks, Harty
would make the assignment. However, for the most part, Harty
would select employees who were standing next to him at the
time or who were free at the time to do the work, or if no one was
available, Harty would do the work himself. Harty testified that
he spent about 50 percent of his time performing similar kinds of
physical work that is done by members of the crew.
The crew including Harty operated various kinds of equip-
ment to move objects, such as fork lifts, an aircraft tug, a man
lift, a bomb elevator, and a saddle hoist. Harty would decide
which employees would be assigned to use the various types of
equipment, in part based on Harty’s assessment of their intelli-
gence and ability to operate the equipment properly. However,
most of the equipment could be operated by any of the employ-
ees. With respect to the hi-lo and the saddle hoist which is a
crane used to move planes, only certain employees were quali-
fied to perform such work. Harty would decide which employ-
ees were to be assigned to operate such equipment, but often
Harty himself would do so. Additionally, Harty was informed
by shop steward Colin Payne that Francis had informed Payne
that only Payne, Mentez, and Harty should be allowed to oper-
ate the hi-lo. This instruction was reinforced directly from
Francis to Harty on several occasions when a maintenance em-
ployee burned the carpet on the hanger deck when using the hi-
lo, and Francis told Harty that he wanted only certain men to
drive the hi-lo.
With respect to the saddle hoist-crane, which was used to
move planes, Harty would usually operate that equipment him-
self, but on occasion either Payne or Mentez would be assigned
by Harty to do so. This equipment would be used only once or
twice a year, either during fleet week or during a big party.
Respondent frequently rents out its facility for special events,
such as parties, weddings, and bar mitzvah’s. On these occa-
sions, temporary maintenance workers are sometimes hired to
supplement the regular maintenance crew. According to Francis,
Respondent uses some amount of extra or temporary workers on
approximately 30 events of the 100 events held each year.
While Francis testified and Respondent contends that Harty
made the decision as to which temporary employees were to be
hired, such testimony is refuted by the credible testimony of
Harty and Anthony Aversa the Union’s president, as well as
documentary evidence. In fact, while Respondent’s officials do
notify Harty or whatever foreman is on duty at the time as to
the number of temporary employees needed for a particular
event, Harty’s role in obtaining these employees consists of
merely transmitting this information to the union shop steward,
who in turn makes the selection of temporary employees from a
list that the steward maintains.
That procedure is in fact mandated by the collective-
bargaining agreement, which requires Respondent to in the first
instance request the Union by its shop steward, to refer em-
ployees for temporary positions. The record also reflects that
prior to 1992, shop steward Payne had been failing to utilize the
union list for this purpose, and instead referring his friends.
Thus, Aversa sent Payne a memorandum dated November 13,
1992, directing him to hire off the union list.3
Further, after the Union and Respondent wrapped up negotia-
tions in late 1996, Gardner asked Aversa for a copy of the list that
the Union is using to select temporary employees. Aversa sent
such a list to Gardner with a letter dated December 1996, request-
ing that Gardner notify either Harty or Payne if Respondent had
any problems with any of the individuals on the list.
The record also reflects that Harty recommended to Payne
that Angelo Imperato, a friend of his, be added to the list when
Payne needed an additional worker for a large event. A worker
was needed quickly, and Imperato who lived close by was
called and added to the list. On another occasion, when Payne
was only able to obtain four of the five men needed for an
event, Payne asked Harty if he could call Imperato and see if
Imperato was available to work. Harty called Imperato who did
agree to work that particular job.
Subsequently, when an opening for a permanent position de-
veloped, Harty recommended to Francis that Imperato be hired
to fill that position. However, Francis did not follow Harty’s
recommendation, and hired another individual, Errol Ward,
who Harty had not recommended for the position.

3 A copy of this memo was sent to Francis.
INTREPID MUSEUM FOUNDATION 7
Testimony was adduced concerning Harty’s alleged role is
recommending the suspension of employees. Both Koen and
Francis testified that Harty recommended that employee Paul
Jacobowski be suspended for 3 days on one or two occasions,
and that this recommendation was followed on each occasion.
However, Koen further testified that prior to Harty’s recom-
mendations, he himself had spoken to Jacobowski and repri-
manded him for his attendance problems. Moreover, after
Harty made the recommendations to suspend Jacobowski, Koen
asserts that he (Koen) discussed the matter with Francis,
checked Jacobowski’s timesheets to make sure that Harty was
“correct in his facts,” and finally agreed to Harty’s recommen-
dations to twice suspend Jacobowski for 3 days.
Harty recalled that he informed Koen that Jacobowski was
constantly out of work, and that other employees had been
complaining about doing Jacobowski’s work, but denies that he
recommended that Jacobowski be suspended.
Koen also testified concerning an employee named Anthony
Hernandez, and asserted that Harty had recommended that Her-
nandez be suspended for lateness, and that Respondent did so.
Once again, Koen testified that after this recommendation was
made by Harty, that Koen and Francis looked over Hernandez’
file and concurred in the recommendation to suspend Hernan-
dez.
According to Harty, he never recommended that Hernandez
be suspended, but did complain to Koen that Hernandez was
coming in late, disrupting the men, and the men were complain-
ing to Harty.
Koen also testified that on one occasion, Harty on his own,
told Hernandez to go home, without receiving pay, because he
had come in late. Koen further testified that Harty may have
done the same thing with respect to Jacobowski, but he was not
sure.
Harty denies that he ever sent Hernandez home because of
lateness, and asserts that he would only send an employee home
if Koen gave him instructions to do so. Harty recalled that he
had on one occasion received such instruction concerning Jaco-
bowski, and that he related this instruction from Koen and sent
Jacobowski home.
Koen and Francis testified that Harty would release workers
early when they performed a particularly “dirty” or “bad” job,
with full pay, without any approval from other supervisors.
However, neither Francis nor Koen provided any specific ex-
amples of such conduct. Harty testified that the only such inci-
dent he could recall was maintenance employees cleaned out
the compactor and the septic tank on one occasion, and that
their clothing was soiled with “human waste.” At that time,
according to Harty, he discussed the situation with John Kelly,
Koen’s predecessor and it was agreed that the employees in-
volved could leave early and go home.
Testimony was also provided by Francis that Harty would re-
lease the crew that was employed at a special event before the
end of the shift, and the crew would be paid for the entire shift.
However, according to Harty, he would at times allow the crew
to leave early at a special event when all work was completed,
but on most of these occasions, either Francis or special events
Coordinator O’Keefe would specifically authorize the crew to
leave when work was completed, even though the shift had not
ended.
O’Keefe did not testify, but Francis admitted that 40 percent
of the time, he would give specific approval to let the crew
leave when work was completed and pay them until the end of
the shift. As for the remaining 60 percent of the time when this
occurred, Francis testified that Harty would “do it on his own
or in conjunction with the Special Events Coordinator.” Fran-
cis did not indicate how often Harty, “did it on his own.”
Harty testified that “most of the time” O’Keefe was present
at the special event, and would authorize the crew to leave prior
to the end of the shift. Harty did admit that there were a few
occasions when he released the crew on his own, without the
specific authorization of Francis or O’Keefe, who were not
present at the time. As to these incidents, Harty testified that he
merely continued the same policy that had been in effect prior
to Harty becoming foreman.4
Koen testified that where an employee is notified of a family
emergency during the shift, the employee will inform Harty,
and Harty would let Koen know the next day. Koen concedes
that the employee would not be paid for the time that they did
not work.
Harty testified that most of the time in such situations, he
normally would let either Koen or Francis know at the time that
the employee left, but concedes that occasionally he would be
busy and would forget to let Francis or Koen know. While
Harty admits that he sometimes would ask the employees for
the reason why they needed to leave early, he never denied any
employee permission to do so.
C. The Drug Testing
The parties began negotiations for a new collective-
bargaining agreement sometime in 1989. Francis was present
at the negotiations for Respondent, along with Larry Sowinski
and Wayne Schmidt, Respondent’s director of exhibits and
executive director respectively, at that time. The Union was
represented by its president, John Potter, and its attorney, Herzl
Eisenstadt.5 During these negotiations, the subject of drug use
by employees of Respondent was discussed.
On December 12, 1989, Eisenstadt sent a letter to Respon-
dent’s attorney, Vincent Pitta, summarizing what Eisenstadt
believed to be the status of negotiations with respect to various
issues. The paragraph in the letter concerning drug use reads as
follows:

The Union has indicated its strong support of the [Intrepid’s]
anti-drug efforts. It will participate in a joint Management-
Labor Committee on Drug Education among the employees.
However, it is management’s responsibility to ‘police the
area’ to enforce rules intended to stem drug use by workers as
well as the general public, which rules may be included
among the ‘work rules’ appended to the Agreements (as in the

4 Harty had previously worked as a temporary employee before be-
coming a full-time employee.
5 Francis at one point in his testimony stated that Kevin Kennedy,
the union’s shop steward was also present. Later on in his testimony,
Francis was uncertain whether or not Kennedy was present at the nego-
tiations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8
case of the existing rules, the parties are in agreement that
they will be implemented reasonably and equitably). These
will not, however, provide for random drug testing. Should
supervision demonstrate to the Union that a particular em-
ployee has been or is using drugs while on the job or is then
under the influence of drugs, the employee may be tested and,
if the results are positive, may be disciplined, including dis-
missal, for just cause. As with any other suspension or dis-
charge, it may be grieved.

Pitta replied to Eisenstadt’s letter of December 20, 1989. In
his December 20 letter Pitta writes, “In connection with the
[Intrepid’s] anti-drug efforts, enclosed please find a draft of its
proposed contract language establishing a joint labor-
management committee.” The proposed language, contained in
addendum 1 to Pitta’s letter, provides, in part:

The Union and the Employer agree, effective as of the
date of this Agreement, to establish a joint committee con-
sisting of two (2) representatives of the Union and two (2)
representatives of the Employer for the purpose of study-
ing and upon their mutual agreement implementing poli-
cies and procedures designed to prevent, detect and/or
remedy employee drug and alcohol abuse.

On November 26, 1990, Eisenstadt wrote Pitta concerning
the ongoing collective-bargaining negotiations. In paragraph 6
of the letter, Eisenstadt states, “A drug testing program is to be
drafted by counsel to effectively address the Foundation’s con-
cerns while protecting employee privacy and due process.”
Eisenstadt testified that neither counsel nor representatives of
the parties, ever drafted a testing program in response to his
November 26 proposal. Eisenstadt further testified that when
he wrote the November 26 letter, he intended to address a num-
ber of issues relating to employee privacy and due process,
including employee confidentiality and the right to challenge
the basis for the test. Francis admitted that “there was no
agreement at this negotiation on testing.” Francis recalled
Eisenstadt stating at the negotiations that he would help “draft a
policy” and that they should “put together a group of labor and
management.” However, Francis admitted that no joint com-
mittee was formed between the Union and the Intrepid on the
subject of drug testing. Francis claimed instead that he formed
a committee on the subject that consisted of himself and an
Intrepid attorney.
The collective-bargaining agreement between the parties was
executed by Respondent on December 6, 1990, and contained
no reference to or agreement on the subject of drug testing.
However, the Agreement did contain a number of work rules
which were agreed on and attached to the contract. Work rule
#7 reads as follows:

Gross Misconduct: Any employee observed in lewd or inde-
cent conduct, using obscene or indecent language, fighting,
threatening anyone, destroying Museum property, soliciting
money or gifts, or in any way harassing anyone at the Mu-
seum, will be in violation of the work rules and a letter of
grievance will be issued to the Union. Two grievance letters
of gross misconduct will result in dismissal of the employee.
Drinking of alcoholic beverages, or the taking or using of any
illegal drug, will also be considered gross misconduct.

According to Francis, sometime between December 6 and
11, 1990, he drafted a drug testing policy which was reviewed
and approved by Respondent’s attorney. Francis further testi-
fied that he then gave a copy of the policy to shop steward
Kevin Kennedy, and told him to show it to Union President
Potter, and get back to Francis if there was a problem with it.
A couple of days later, Francis asserts that he asked Kennedy
whether he and Potter had reviewed the policy and if the Union
had a problem with it. Kennedy allegedly replied that he and
Potter had looked at the document and “its fine just the way it
is.”6
Francis further asserts that he told Kennedy to make sure the
entire crew sees it, and that he posted the notice in his office as
well as on the official bulletin board of the museum outside the
finance department and in the locker room used by the mainte-
nance employees represented by the Union.
Koen testified that in 1990, he was employed by Respondent
in the exhibits department and that he did not recall seeing a
copy of the “Drug Testimony Policy” posted anywhere at the
Museum. However, Koen did recall receiving a copy of that
policy in his mailbox at that time. The Drug Testimony Policy
as testified to by Francis and Koen was as follows:
MEMORANDUM
TO: ALL DEPARTMENTS

FROM: DONALD FRANCIS

DATE: DECEMBER 11, 1990

SUBJ: DRUG AND ALCOHOL ABUSE POLICY

Attached hereto is a copy of the Museum’s Drug and
alcohol abuse policy adopted by the Intrepid Museum after
consultation with our attorneys.

Donald Francis
Deputy Director

COMPANY POLICY ON ABUSE
OF DRUGS AND ALCOHOL
IN THE WORKPLACE
The Intrepid Sea-Air Space Museum (the Company)
recognizes that the future of the Company is dependent on
the physical and psychological health of all of its employ-
ees. The misuse and abuse of drugs and alcohol poses a
serious threat to both the Company and its employees. It
is the responsibility of both employees and the Company
to maintain a safe, healthful, and efficient working envi-
ronment.
Therefore, the Company has adopted the following
policies:

I. On-the Job Use, Possession, Sale or Distribution

6 Neither Kennedy nor Potter testified. Potter was deceased at the
time of the hearing. Kennedy was no longer employed by Respondent,
having been terminated at a time undisclosed by the record.
INTREPID MUSEUM FOUNDATION 9
The use, possession or sale of unauthorized or illegal
drugs or the misuse of any legal drugs on Company prem-
ises or while on Company business is prohibited and will
constitute grounds for appropriate discipline, up to and in-
cluding discharge.
The use of Company property, including Company ve-
hicles and telephone, or an employee’s position within the
Company to make, transfer, or sell intoxicants, or illegal
drugs, is prohibited and will constitute grounds for appro-
priate discipline, up to and including discharge.

II. Employee Impairment and Drug Use

Any employee under the influence of drugs or alcohol
which impairs judgment, performance or behavior while
on Company business will be subject to appropriate disci-
pline, up to and including discharge.
Employees must promptly notify their supervisors if
they are convicted of a criminal drug offense occurring in
the workplace. Employees must promptly report to their
supervisors the use of any prescribed medication which
may impair their judgment, performance or behavior.

III. Employee Drug Testing

The Company has a right to require employees to un-
dergo testing for alcohol or drug use if it has reason to be-
lieve that the employee is in violation of the aforemen-
tioned rules. Refusal to submit to such testing will result
in appropriate discipline, up to and including discharge.
The Company has the right to decide whether the em-
ployee will continue work pending receipt of the test re-
sults.
Upon receipt of the results of a drug test, the employee
will be notified. If the results are positive, the employee
will be given an opportunity to explain.
Upon receipt of a verified or confirmed positive drug
or alcohol test result which indicates a violation of the
Company’s written policy, the Company may impose dis-
ciplinary or rehabilitative action. Such action may include
a requirement that the employee enroll in rehabilitation,
treatment or counseling program, approved by the Com-
pany, which may include additional drug or alcohol testing
as a condition of returning to work.

This drug policy was not attached to the collective-bargaining
agreement executed in 1990, nor was it ever mailed to or oth-
erwise distributed to any officers of the Union.
Following the expiration of the 1990 contract, the parties did
not negotiate a successor contract until 1994, when they
reached an agreement that covered the period October 14, 1994,
to December 31, 1996. In the six bargaining sessions that pro-
duced the 1994 contract, the subject of drug testing was not
raised by either party. The language of work rule 7 in exhibit C
of the 1990 contract was modified in 1994. In this regard,
Francis testified that the Union demanded in negotiations that
the rule on drug usage be limited to cases where the usage offi-
cers “on the premises” of the Intrepid. Accordingly, the 1994
version of work rule 7 provides as follows:

7. Gross Misconduct: Any employee observed acting
lewdly, or indecently or using obscene or indecent lan-
guage, or fighting, or threatening anyone, or destroying
Museum property, or soliciting money or gifts, or in any
way harassing anyone at the Museum, will be in violation
of those work rules and a letter will be issued to the em-
ployee with a copy of the Union. Two such letters regard-
ing the employee’s gross misconduct will result in dis-
missal of the employee. Drinking of alcoholic beverages
in the public portions of the Museum’s premises or during
working hours anywhere, or the taking or using of any il-
legal drug anywhere or anytime on the premises shall con-
stitute gross misconduct.

In 1996, Aversa and Gardner participated in negotiations of
an extension agreement to the 1994 contract, which was exe-
cuted on November 25, 1996, and effective from December 31,
1996, to December 31, 1997. This agreement provided that all
the terms of the prior agreement shall be extended for 1 year, as
well as several minor modifications. The subject of drug test-
ing was not raised by either party during the negotiations for
this extension agreement.
According to Aversa, who became union president in late
1992, he was unaware (prior to February 1997) that Respondent
had ever issued a drug testing policy or that the maintenance
employees were subject to such a policy. Aversa also testified
that he was never informed by his predecessor as president, a
woman named Cathy Myers that such a policy had been in
effect.
Eisenstadt, who as noted above was the Union’s attorney in
1989–1990 also testified that he was unaware of such a policy,
and that he did not see a copy of such a policy until 1997 at the
unemployment hearing for Harty. Eisenstadt also testified that
neither Potter (union president) nor Kennedy (union shop stew-
ard) ever informed him that they were made aware of such a
policy or at any other time. Further, Eisenstadt testified that he
searched his files and did not find a copy of this 1990 drug
testing policy.
It is undisputed that between December 1990 (when this test-
ing policy was allegedly announced), until February 1997, no
testing had been conducted of bargaining unit employees.
However, sometime in 1995 or 1996, Francis received a report
that a member of management was using drugs. Therefore, at
that time he decided to test a majority of Respondent’s man-
agement and salaried personnel for drugs. The record does not
reflect the results of such testing, or whether any of these
managerial or salaried employees were disciplined as a result of
such test.
Sometime in 1995, Francis received a report that one mem-
ber of the maintenance unit was using drugs, and that based on
his own observation of that person’s behavior, he believed that
the employee was taking drugs. However, that employee was
not tested.
Francis also testified that the reason that he instituted the
drug testing policy in 1990 was that he had found drug para-
phernalia in the ship. He further asserts that after the policy
was announced to employees, Respondent did not find very
much thereafter, “so maybe it worked.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10
In or about February 1996, Koen found various kinds of drug
paraphernalia7 on the fifth deck, which is an area frequented by
operations personnel, including members of the maintenance
department. Koen reported his discovery to Francis and they
decided to try to catch someone in the act of using drugs, and to
continue to monitor the situation. They did not discuss whether
or not to test employees at that time, and concluded that Koen
would monitor the situation.Thereafter, Koen would inspect the
fifth deck area every month or so, and discovered increasing
amounts of drug paraphernalia, but Respondent was unable to
catch anyone using drugs.
In the fall of 1996, Francis found rolling paper in the pickup
truck that is used by employees in the engineering and mainte-
nance department. Additionally, Koen found crack vials and
crack pipes on the fifth deck, along with the other drug para-
phernalia described above.
Also, both Francis and Koen were told by an employee that
there was extensive drug use on board the ship during business
hours, and that some of these individuals were operating heavy
equipment. They were both given specific names of employees
who were allegedly using drugs, which included eight or nine
members of the operations department. Harty was one of the
names given to Koen and Francis by a fellow employee as one
of the employees were using drugs. Francis, in fact, was told
by this employee, “[N]o one in the maintenance crew would
pass the test.”
In mid-October 1996, shortly after Gardner became C.E.O.,
Francis reported to Gardner that Respondent had a drug prob-
lem on the Intrepid. Francis informed Gardner of the evidence
that he and Koen had uncovered, including the “hearsay”
statements from an individual that drug use was rampant among
the operations department employees. General Gardner was
most concerned about this report, and in fact he had himself
smelled marijuana in the bathroom. Gardner asked Francis if
Respondent had a drug testing policy, and Francis produced a
copy of the 1990 policy. Francis informed General Gardner
that the policy was applicable to all employees, but that no
employee in the maintenance department had been tested pre-
viously. According to Gardner, the only reason given to him by
Francis that he recalls, for the failure of Respondent to previ-
ously test these employees was “financial reasons.” Gardner
indicated to Francis that he believed that Respondent should be
“proactive” in testing, and then proceeded to review various
documents including the 1990 policy, the collective-bargaining
agreement, and the Union’s letters to determine how and when
to proceed. Gardner asserts that he also consulted with Re-
spondent’s attorney to see if its drug policy conformed with
New York State law .
Sometime in December 1996, General Gardner decided that
he would test all the employees in the operations department.
With respect to the maintenance department, Gardner asserts
that he believed that he had “reasonable cause” to warrant drug
testing of all employees in the department, since Respondent
had found drug paraphernalia in areas where the employees
work, including the pickup truck which employees, including

7 The paraphenalia found by Koen included pipes, roaches, and
marijuana containers.
Harty drive. Gardner admitted that he did not believe that
Harty was one of those who was taking drugs. However, he
asserts that he knew that at least one and probably more of the
employees were using drugs, and, therefore, decided to test all
nine employees in the department.
Gardner does recall being told about the “hearsay” informa-
tion from Francis concerning drug use, but did not remember if
Harty was one of the individuals named as a drug user. How-
ever, General Gardner testified that although he did not disre-
gard this “hearsay” information, these reports were less valid
than the physical evidence that had been discovered, which had
the most importance to Gardner in deciding that he had reason-
able cause to test.
General Gardner conceded that he also believed that he had
the inherent right to test all employees even absent reasonable
cause, because of the collective-bargaining agreement’s refer-
ence to drug use and the letter from the Union’s attorney in
1989, which in his view recognized and agreed to a drug free
workplace. Gardner also testified that he did not need reason-
able cause to test the engineering and security guard employees
in the operations department, since the former employees were
not represented by a Union, and the latter group of employees
were parties to a collective-bargaining agreement which ex-
pressly permitted testing.
General Gardner concluded, however, that it would be ap-
propriate for Respondent to reissue the 1990 drug testing policy
under his own name, so employees would understand its impor-
tance and “that this was a museum policy that was in effect.”8
Accordingly, he drafted a document entitled “POLICY LETTER
#4 COMPANY POLICY ON ABUSE OF DRUGS AND
ALCOHOL IN THE WORKPLACE which was signed by Gard-
ner, and dated January 27, 1997. After the document was re-
viewed by Respondent’s attorney and some minor changes
made, it was distributed to Respondent’s employees. Except
for a few minor and insignificant language changes, the 1997
document was identical to the 1990 policy that Respondent’s
witnesses testified was issued and posted in 1990.
Francis and Koen met with Colin Payne, the Union’s shop
steward, on or about January 27, 1997. Payne was handed a
number of copies of the policy and was told to give copies to all
the maintenance employees and to let Respondent know if he
(Payne) had any problems with it. The next day, Francis, in
Koen’s presence, asked Payne if he had read the policy and if
he had a problem with it. Payne replied that he had no problem
with it, since “it’s the same thing we’ve had all along. It’s the
same thing that you wrote way back when.” Payne also con-
firmed that he had given a copy to each employee and they all
had read it and understood it.9
Respondent admittedly did not send a copy of the policy to
Aversa or any official of the Union. Francis asserts that the
notice to the shop steward was sufficient in his view.
8 In fact, Gardner also reissued six or seven other museum policies in
his name.
9 The above findings concerning the conversations between Francis,
Koen, and Payne is based on the essentially mutually corroborative
testimony of Francis and Koen. Payne did not testify.
INTREPID MUSEUM FOUNDATION 11
On February 6 or 7, Koen met with employees of the main-
tenance department, as well as other members of the operations
department. Koen redistributed a copy of the January 27
memorandum, and had employees sign a sheet indicating that
they had received, read, and understood it. Harty was among
the employees who singed this document.
On the same day, Koen distributed another memorandum,
dated February 5, 1997, and issued by Francis entitled “Drug
Testing.”
This memorandum reads as follows:
MEMORANDUM
TO: All Operations Staff DATE: February 5, 1997

FROM: Donald Francis—Vice President

THE: Drug Testing

The Intrepid Museum is committed to assuring the
safety and well-being of all of its employees and visitors.
This commitment includes a strict prohibition against the
use of alcohol and/or drugs at any time on company prop-
erty. Since an employee whose judgment is impaired is a
danger to himself and others, this prohibition also included
coming work under the influence of alcohol and/or drugs.
The Museum will take all steps to make sure this policy is
complied with. In accordance with our long-standing drug
testing policy (which was recently reiterated in General
Gardner’s policy letter #4 dated January 27, 1997) em-
ployees will be asked to undergo testing for the presence
of alcohol and drugs when problems or circumstances in-
dicate cause to believe that an employee (or group of em-
ployees) is in violation of the Museum’s prohibition
against the use of drugs or alcohol at work or that em-
ployee (or group of employees) is coming to work under
the influence of such substances.
Additionally, the Museum is required pursuant to U.S.
Coast Guard regulations to register all employees who are
involved in the operation of vessels on United States wa-
terways in a certified random drug testing program.
Therefore, all personnel who are involved in such opera-
tions will be tested to qualify for the program. Thereafter,
those employees will be tested randomly as determined by
a certified drug testing laboratory.
Moreover, because management has cause to believe
that there have been violations of the Museum’s prohibi-
tion against employees using or being under the influence
of drugs and/or alcohol in the workplace, all personnel in-
volved in the use of machinery or equipment, or the health
and safety of our visitors and staff will also be tested.
You will be notified of the results of your test. If the
results are positive you will be given an opportunity to ex-
plain. A verified or confirmed positive test result indicat-
ing a violation of the Museum’s prohibition against em-
ployees using or being under the influence of drugs and/or
alcohol during working hours or on company property will
result in corrective or disciplinary action up and including
termination of employment.

Koen conceded that the February 5 memorandum repre-
sented a change from past practice, in that it permitted random
drug testing of maintenance employees when such employees
are involved in the operations of vessels on United States Wa-
terways.10
On February 12, 1997, Respondent tested all 60 employees
in the operations department, including the nine employees in
the maintenance department.
Union President Aversa was first notified of the testing by
Harty, who informed him that the maintenance employees had
already been tested. He then notified the Union’s attorney,
Eisenstadt, who informed Aversa that Respondent had violated
the contract by testing its maintenance employees.
However, the Union did not file a grievance over the Re-
spondent’s action in testing, and did not even contact Respon-
dent about such action until after February 20, 1997, when
Harty was terminated for failing the drug test.11
After the discharge of Harty, Aversa called Gardner and told
him that it was “illegal” for Respondent to test the men and that
Harty should not have been fired. Aversa requested that Gard-
ner reinstate Harty, urging that the drug policy includes reha-
bilitation. Gardner replied that Harty had tested positive for
cocaine, and Aversa responded that it doesn’t make any differ-
ence, “a drug’s a drug.” Gardner refused to change his mind
and the matter was turned over to the parties attorneys.
Eisenstadt prepared a draft letter dated February 21, 1997, to
General Gardner. The letter asserts that the Union has been in
the forefront among unions in insuring a drug-free workplace,
and has negotiated many drug programs, which are grounded in
rehabilitation and not punishment or retaliation. The letter adds
that testing has not been negotiated, and that the Union has
never consented to Respondent’s right to test employees.
The letter further requests that Harty’s termination be con-
verted to a suspension, with an opportunity for his application
for reinstatement on his certified completion of an approved
rehabilitation program, subject to further testing. Finally the
letter asserts that Respondent has violated the Act, as well as
the contract, but hopes that filing charges or a grievance will
not be necessary.
Eisenstadt discussed the letter with Respondent’s attorney
and faxed him a copy, but never actually sent it to Gardner,
since Respondent’s attorney subsequently informed Eisenstadt
that General Gardner had been shown a copy of the letter, and
the Union’s message had been conveyed.
The Union finally decided not to file a grievance under the
contract, but rather to file a charge with the Board, “because we
felt that that would be the most direct method of remedying it.”
General Gardner testified concerning his interpretation of
Respondent’s work rule 7 and its reference to two warnings.
According to Gardner, a warning letter is not required for viola-
tions of the drug and alcohol sections of the rule, since only the

10 Working on vessels in U.S. Waterways refers to working on
barges, not on the Intrepid itself. From time-to-time, the maintenance
employees do perform some work on such barges.
11 Two other employees in the operations department, one in engi-
neering and one security guard also failed the test. These employees
were also terminated by Respondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12
preceding sentences which discuss other less serious offenses
such as acting lewdly or using obscene language require the
two warnings. The prohibition of drinking alcoholic beverages
and using drugs is contained in the sentences after the two
warning requirement, and, therefore, he believes that it is not
mandated that a warning be issued in such circumstances Gard-
ner also testified that he believed that Harty’s conduct was
“egregious,” and since Harty was a foreman and admitted to
using cocaine, he decided that termination was warranted.
The parties entered into a memorandum of understanding on
April 13, 1998, that contained the terms of a new collective-
bargaining agreement. The memorandum contains the follow-
ing provision relating to drug testing:

16. A new drug and alcohol testing program to be in-
augurated, to include pre-hire, reasonable cause and ran-
dom testing (per Coast Guard requirements); split samples,
secure chain of custody; testing for alcohol and major pro-
hibited drugs, per NDA standards; and an MRO review.
Provision of union’s or employee’s challenge to basis for
testing, with testing to proceed but results to be sealed
pending resolution. Employee who tests positive to be
permitted to undergo rehabilitation and to be individually
tested randomly at employer’s instance for one year. A
second offense subjects the employee to immediate termi-
nation. Contractual grievance procedures, to apply to all
aspects of program.

D. Alleged Supervisory Status of Harty
Respondent asserts that the evidence establishes that Harty
was a supervisor under Section 2(11) of the Act, inasmuch as
he hired individuals on his own authority, effectively recom-
mended the hiring of a permanent staff member, assigned work
to the other employees, effectively recommended disciplinary
action, and rewarded employees by permitting them to leave
before the end of the shift without loss of pay. I do not agree.
The record fails to support Respondent’s assertion that Harty
hired temporary employees for special events without prior
approval and “in the exercise of his own judgment and discre-
tion.” On the contrary, the evidence is clear that the hiring of
temporary employees is done by the shop steward from a list
maintained by the steward, pursuant to the contract between the
parties. Harty’s role in this process is solely to transmit the
request of Respondent’s officials for a particular number of
temporary employees to the shop steward.
Therefore, there is no basis to conclude that Harty exercises
any judgment, independent or otherwise, in connection with the
hiring of temporary employees.12
The record does not reflect as Respondent contends that
Harty effectively recommended the hiring of a permanent staff

12 Indeed, even if as Respondent asserts, but the record does not
support, Harty made the calls to hire the temporary employees, such
would not be sufficient to establish supervisory status, since the names
were derived from a list that Harty had not compiled. Thus, his func-
tion in that regard would be construed as clerical in nature, and does not
require the exercise of independent judgment or discretion. Illinois
Veterans Home, 323 NLRB 890 (1997); L. Suzio Concrete Co., 325
NLRB 392, 395 (1998).
member. Rather the one recommendation that Harty did make
in this regard, to hire his friend Angelo Imperato for such a
position was rejected by Respondent. Harty was instrumental
in adding Imperato to the list of temporary employees main-
tained by the Union, when the steward asked if Harty knew of a
worker who lived close by. On another occasion, the steward
asked Harty to call his friend Imperato to see if he was avail-
able for a particular job. These actions by Harty can hardly be
construed as effectively recommending the hiring of an em-
ployee, and are insufficient to establish 2(11) status.
While the record does establish that Harty does assign and
direct the work of the members of his crew, Respondent has
fallen short of meeting its burden of establishing that Harty
exercised “independent judgment” in carrying out these func-
tions. Hausner Hard-Chrome of Kentucky, 326 NLRB No.
136, slip op. at 1–2 (1998) (not reported in Board volumes).
The large majority of the work by the crew such as general
cleaning, moving boxes, loading and unloading boxes, and
moving exhibits from place to place, are routine, unskilled
tasks, which do not require the exercise of independent judg-
ment by Harty to assign. Greenhorne & O’Mara, Inc., 326
NLRB 514 (1998); Lincoln Park Nursing Home, 318 NLRB
1160, 1162 (1995) (maintenance supervisor); Sears & Roebuck
& Co., 292 NLRB 753, 754–755 (1989); Esco Corp., 298
NLRB 837, 839 (1990). Indeed, in this connection Respondent
has not established that the skills of the employees differ sig-
nificantly with respect to most of their work tasks. Providence
Hospital, 320 NLRB 717, 731 (1996).
Additionally between 8 and 10 a.m. in the morning the em-
ployees perform the same tasks every day. After 10 a.m., when
it is necessary to assign an employee to a particular job, Harty
generally selects crew members who were standing next to him
at the time or who were free at the time to do the work. Such
assignments by Harty is a function of routine work judgment
and not a function of authority to use the type of independent
judgment required of a supervisor. Clark Machine Corp., 308
NLRB 555, 556 (1992); Illinois Home, supra.
Respondent emphasizes Harty’s admission that he selected
individuals on the crew who could operate heavy equipment
based on his assessment of the intelligence or abilities of the
particular employees. However, I note that the discretion exer-
cised by Harty in such assignments is circumscribed by previ-
ous instructions from Francis limiting the employees that Harty
could choose to operate certain equipment such as the hi-lo and
saddle hoist. In any event, these kinds of assignments, are not
sufficient to confer supervisory status on Harty, since they are
merely acts of “an experienced employee who knows which
employee can better operate certain equipment.” Sears & Roe-
buck, supra at 755 (selection of one employee over another to
operate a forklift does not support finding of supervisory
status). See also Hausner Hard, supra (maintenance assign-
ments on the basis “that a skilled leadman generally makes
such assignments, namely by taking note of employees’ skills
and experience with respect to particular tasks,” held to be rou-
tine); Quadrex Environmental Co., 308 NLRB 101 (1992) (as-
signment by leadmen of tasks to work crew employees demon-
strates nothing more than the knowledge expected of experi-
INTREPID MUSEUM FOUNDATION 13
enced persons regarding which employees can perform particu-
lar tasks).
Respondent also alleges that the evidence establishes that
Harty effectively recommended disciplinary action with respect
to employees Jacobowski and Hernandez, and on another occa-
sion sent Hernandez home without receiving pay, because of
lateness. Koen and/or Francis testified concerning these mat-
ters, and if credited, would establish that Harty did recommend
that Respondent suspend Hernandez and Jacobowski for 3 days
for lateness and that Respondent followed this recommenda-
tion. Koen testified that Harty sent Hernandez home without
pay, also for coming in late.
Harty admits that he did complain to Koen about Jaco-
bowski’s lateness, but denies recommending that Jacobowski or
any employee be suspended. Harty also denies ever sending an
employee home on his own initiative, and asserts that he would
only do so if Koen gave him such instructions. Harty recalled
receiving such instruction with respect to Jacobowski.
I need not make credibility resolutions with respect to the
above conflicts in testimony between Respondent’s witnesses
and Harty, because in my view, fully crediting Francis and
Koen in these areas does not establish supervisory status of
Harty.
Thus, as to the recommendations to suspend employees
Jacobowski and Hernandez, Respondent’s witnesses concede,
that after receiving Harty’s recommendations, Koen and Fran-
cis discussed the recommendation, checked the timesheets of
the employees involved to make sure that Harty was “correct in
his facts,” and looked over the employees’ files. In such cir-
cumstances, where no disciplinary action is taken without ac-
knowledged supervisors having conducted their own independ-
ent investigation of the matter, such recommendations are not
“effective” recommendations sufficient to confer supervisory
authority. Brown & Root, Inc., 314 NLRB 19, 23 (1994);
Northcrest Nursing Home, 313 NLRB 491, 497, 506–507
(1993); Polynesian Hospitality Tours, 297 NLRB 228, 235–236
(1989); Ball Plastics Division, 228 NLRB 633, 634 (1977).
As for the one incident, where Harty allegedly sent employee
Hernandez home without pay when he showed up late for work,
this conduct is insufficient to establish supervisory status, in-
asmuch as the exercise of such restricted and sporadic authority
does not require independent judgment, Lincoln Park, supra at
1162; Northcrest Nursing, supra at 497, and the evidence does
not establish that any ultimate personnel decision was made by
Harty as a result of Harty sending Hernandez home. Quadrex,
supra at 101. Moreover, this single instance of conduct by
Harty, even if considered supervisory in nature, is too isolated
to establish supervisory status. Brown & Root, supra at 21;
Polynesian Tours, supra at 236.
Respondent also contends that Harty exercised supervisory
authority by rewarding employees when he permitted employ-
ees to leave work early before the end of the shift without loss
of pay. In that regard, Harty admitted that on one occasion,
after some employees cleaned out a septic tank resulting in
their clothing being soiled with human waste, he allowed these
employees to leave early and go home without loss of pay, but
that he did so, only after receiving permission from a higher
supervisor. This action by Harty is hardly sufficient to estab-
lish the requisite discretion indicative of supervisory status, and
is again a single isolated incident. Brown & Root, supra.
Testimony was also adduced concerning Harty allowing em-
ployees to leave early while working at special events. How-
ever, the record reveals that while Harty did at times permit the
crew to leave early, as long as work was completed, he did so
either with the specific permission of higher management, or as
a continuation of the policy that had been in effect prior to his
becoming foreman. Accordingly, I do not find that Harty’s
actions in this respect to be indicative of 2(11) supervisory
status.
Respondent also places reliance on several other factors,
such as Harty’s additional salary of $3 per hour, the fact that at
times he is the only “supervisor” present, and that he permitted
on his own employees to leave work early in emergency situa-
tions. However, since I have not found, as described above that
Harty exercised any of the primary indicia of supervisory status
as enumerated in Section 2(11) of the Act, it is unnecessary to
consider these “secondary” indicia of supervisory authority.
S.D.I. Operating Partners, L.P., 321 NLRB 111, 112 fn. 2
(1996); J. G. Brock Corp., 314 NLRB 157, 159 (1994).
Moreover, even if I were to consider these secondary indicia,
they are not indicative of supervisory status herein. The addi-
tional salary of $3 per hour has little significance, since the
Board routinely finds employees who receive extra pay for
assuming leadman responsibilities not to be supervisors under
Section 2(11) of the Act. Lincoln Park, supra at 1162–1163
(maintenance supervisor received extra $2 per hour), Jordan
Marsh Stores, 317 NLRB 460, 467 (1995); Brown & Root,
supra.
As for the authority to allow employees to leave work early
in an emergency situation, the discretion exercised by Harty in
this regard is routine and clerical, does not involve the exercise
of independent judgment, L. Suzio, supra, 325 NLRB at 393;
Azusa Ranch Market, 321 NLRB 811, 812 (1996), and is not
determinative of supervisory status. J. C. Brock, supra at 160;
Providence Hospital, supra at 732; McCullough Environmental
Services, 306 NLRB 565, 566 fn. 5 (1992).
Finally, the fact that at times, Harty is the highest ranking of-
ficial working at the museum is also far from sufficient to es-
tablish his supervisory status. McCullough, supra at 566 fn. 6;
S.D.I. Operating Partners, L.P., 321 NLRB 111 (1996); Esco,
supra.
Accordingly, based on the foregoing analysis and authorities,
I conclude that Respondent has failed to establish that Harty
was a supervisor as defined in Section 2(11) of the Act.
E. The Alleged Unilateral Changes
The complaint alleges, and the General Counsel contends
that Respondent by “reissuing” its drug policy on January 27,
1997, and subsequently conducting a drug test on February 12,
1997, and discharging Harty on February 20, 1997, as a result
of such test, without notifying and bargaining with the Union,
has violated Section 8(a)(1) and (5) of the Act.
In assessing these allegations, it is well settled and undis-
puted that drug testing is a mandatory subject of bargaining,
and that employers must notify and bargain with the Union that
represents its employees before it institutes a policy of drug
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14
testing of its employees or makes changes in any existing drug
policy that was in effect for such employees. Johnson-Bateman
Co., 295 NLRB 180 (1989); Tocco, Inc., 323 NLRB 480
(1997); Delta Tube & Fabricating Corp., 323 NLRB 856
(1997).
Here, Respondent on January 27, 1997, “reissued” its drug
testing policy, that had been previously issued by it on Decem-
ber 11, 1990. Respondent contends that the drug testing policy
previously issued on December 11, 1990, was agreed to by the
Union, and was still in effect as of January 27, 1997. There-
fore, it was not required to notify or bargain with the Union
prior to the “reissuance,” since this action was merely a state-
ment of a preexisting policy that had previously been agreed to
by the Union.
The General Counsel makes a number of alternative conten-
tions in response to Respondent’s arguments, which I shall deal
with seriatim. Initially, the General Counsel asserts that the
testimony of Francis concerning his alleged conversations with
the shop steward in 1990 should not be credited. While as the
General Counsel points out, Francis was not credible in some of
his testimony with respect to the authority of Harty, I do not
believe that these problems with his testimony are sufficient to
discredit Francis’ unrefuted accounting of his discussions with
Kennedy. I note in this regard that not only is Francis’ version
not contradicted by either Kennedy or Potter (who is deceased),
but is implicitly corroborated by the further uncontradicted
testimony of Francis, supported by Koen, concerning their con-
versations with Payne, the Union’s shop steward in 1997.
Thus, after Francis showed Payne a copy of the “reissued” drug
policy in 1997, Payne replied that he had no problem with it
since “it’s the same thing we’ve had all along. It’s the same
thing you wrote way back when.”
The General Counsel conveniently ignores this highly sig-
nificant evidence, particularly since Payne is still employed by
Respondent, and could have been called by the General Coun-
sel or the Charging Party to refute this testimony of Respon-
dent’s witnesses. I, therefore, credit the testimony of Francis
concerning both his 1990 and 1997 conversations with union
shop stewards Kennedy and Payne, respectively.
Therefore, this testimony establishes that Francis, in 1990,
showed Kennedy a copy of the proposed drug testing policy,
told him to show it to Union President Potter and get back to
Francis if there was a problem with it. Several days later, Fran-
ces asked Kennedy whether he and Potter had reviewed the
policy and Kennedy responded, that he and Potter had looked at
the document and “it’s fine just the way it is.”
Respondent asserts that the above evidence constitutes suffi-
cient proof that the Union agreed to the policy, the General
Counsel argues however that even if credited, no agreement by
the Union has been established. The General Counsel points
out that the issue of drug testing had been the subject of nego-
tiations in 1989 and 1990, but no agreement had been reached.
Moreover, the parties through their attorney’s had discussed the
formation of a joint labor management committee to explore
the issue. However, no such joint committee was formed, but
instead Francis “in effect” formed his own committee with
Respondent’s attorney, and drafted the 1990 policy. Further,
the General Counsel asserts, that although Francis may have
notified and secured the agreement of the shop steward to the
policy, the Union cannot be said to have agreed to it, since the
shop steward was not authorized to negotiate a modification of
the contract. McDaniel Ford, Inc., 322 NLRB 956, 963 (1997);
Union Child Day Care Center, 304 NLRB 517, 523 (1991);
TLI, Inc., 271 NLRB 798, 804 (1984); Spriggs Distributing
Co., 219 NLRB 1046, 1049 (1975). I disagree.
Respondent did more than just notify or discuss the proposed
drug policy with the shop steward. It asked the steward to
show to the union president and obtain the approval of the
president. There is no question that the union president was
authorized to negotiate on behalf of the Union, and Potter had
been present throughout the negotiations when the issue had
been discussed. Thus, Respondent in effect negotiated with the
president through the shop steward. While this may not be the
preferred method of negotiating, it is not illegal, and in my
view is sufficient based on all the circumstances herein to es-
tablish that the Union agreed to the drug testing policy in
1990.13 It is also significant that in none of the above cases
cited by the General Counsel, did the discussions with the shop
steward also result in further discussions with higher union
officials concerning the matter by the steward. Indeed, in Un-
ion Child, supra, the administrative law judge specifically noted
that the Respondent therein, did not seek to have the shop stew-
ard inform the certified representative of the substance of the
discussion so that the union would have prior notice of the
charges and an opportunity to bargain. Id at 523. Here, Re-
spondent did precisely that. Francis asked the shop steward to
have the union president review and approve the policy and that
is what happened. The Union had full opportunity to protest or
bargain about the policy in 1990. It not only did not do so, but
expressed its agreement with the policy, by the president stat-
ing, through the shop steward, “it’s fine.”
Moreover, even if the above evidence is deemed insufficient
to constitute agreement by the Union to the policy, there can be
no doubt the Union was notified about the issuance of the pol-
icy, and that it did not object. Therefore, since the policy’s
institution was in 1990, Section 10(b) would preclude any at-
tack on the lawfulness of Respondent’s conduct at that time in
connection with the institution of the policy. Thus, the signifi-
cant fact to be derived from the above is simply that Respon-
dent issued its drug testing policy in 1990 and that it was appli-
cable to the bargaining unit employees. I so find.
That brings me to the next and indeed most substantial issue
to be decided. The complaint alleges that although Respondent
issued a drug policy in December 1990 “at all material times,
the drug policy described above in paragraph 9 was not imple-
mented by Respondent with respect to unit employees.” The
General Counsel contends consistent with this allegation that
the policy was never implemented, since no testing was ever
conducted on bargaining unit employees. Thus, the General
Counsel argues that “the Board has long held that where a work

13 I also rely on the 1997 discussion with shop steward Payne where
he conceded that the 1997 reissuance of the policy was the same as
Respondent had all along and had “written way back when.” This
evidence is an admission on the part of the Union that it both agreed to
and was aware of the 1990 drug policy.
INTREPID MUSEUM FOUNDATION 15
policy has remained dormant for an extended period of time, an
employer may not resurrect and begin strictly implementing
that policy without first notifying the Union and giving it an
opportunity to bargain about the change.” The General Coun-
sel relies on Hyatt Regency Corp., 296 NLRB 259, 263–264
(1989), where the Board relying on a practice of lax enforce-
ment of its preexisting rules on signing in and signing out, con-
cluded that “the enforcement of these rules more stringently
that had been the practice before the Union’s election, repre-
sented a change in the employees’ terms and conditions of em-
ployment over which the Respondent had an obligation to bar-
gain.” Id. at 263. The General Counsel also cites Burns Elec-
tronic Security Services, 245 NLRB 742, 764–766 (1979),
where similarly the Board concluded that lax enforcement14 of
a rule requiring employees to carry a gun or night stick, re-
quired the employer to bargain with the union before posting
and enforcing this rule.
The General Counsel further points out that in Hyatt Re-
gency, supra, lax enforcement of the rule for a 7-month period
was deemed sufficient to prove that the practice (lax enforce-
ment) had become an established term and condition of em-
ployment which could not be changed to one of strict enforce-
ment without notifying and bargaining with the union.
While the General Counsel’s arguments do have some sur-
face appeal, and his citation of authorities appear on their face
to be persuasive, a close analysis of the facts of these cases, as
well as other cases following this rationale,15 convince me that
the General Counsel’s position must be rejected.
Initially, in my view the assertion that the drug testing policy
was not “implemented” is neither accurate nor determinative.
This issue was resolved by the Board in Storer Communica-
tions, Inc., 297 NLRB 296 (1989), where the administrative law
judge had dismissed an 8(a)(5) allegation of a unilateral charge
in an employer’s drug testing policy because none of the em-
ployees were tested until after bargaining took place. The
Board reversed this finding, and observed:

although we do not wish to quibble over the precise meaning
of implemented in this context, it is plain that the Respondent
here announced in no uncertain terms that, as of the date of its
notice, its employees could be subject at any time to a demand
by one of its supervisors to submit to submit to a search or to
a blood or urine test as a condition of employment. Thus, for
all intents and purposes, the unit employees’ working condi-
tions were changed unilaterally as of the time the Respondent
announced its revised policy, and that unilateral change vio-
lated Section 8(a)(5). This unlawful act is not redeemed by
the fortuity that the Respondent happened not to cause any
unit employee to submit to a drug test for several months, be-

14 Here, the judge found 4 years of either no uniform or nonen-
forcement of the rule.
15 Bryant & Stratton Business Institute, 321 NLRB 1007, 1021–
1022 (1996) (lax enforcement of rule requiring faculty to hold classes
for entire period); Blossom Nursing Home, 299 NLRB 333, 341 (1990)
(rule subjecting employees to discharge for employee garnishments,
unlawful unilateral change, in view of prior practice of tolerating gar-
nishments without any disciplinary action).
cause the Respondent claimed the right to require such a test
at any time. [Id. at 296–297.]16

Although the context of these cases is somewhat different,
the rationale and reasoning is dispositive of the relevant issue
here. As of December 1990, the bargaining unit employees of
Respondent have been subject to the Respondent’s drug testing
policy, and could have been tested at any time. Thus, the terms
and conditions of employment of its unit employees were
changed in 1990, and the fact that no unit employee have been
tested is not significant, particularly since there is no evidence
that Respondent disavowed or rescinded the rule.
Also supportive of this conclusion is Bath Iron Works,
Corp., 302 NLRB 898, 901 (1991). There, the Board reversed
an administrative law judge’s conclusion that an arbitrator’s
decision upholding an employer’s right to engage in drug test-
ing allegedly consistent with an existing rule was repugnant to
the Act. The judge had relied heavily on the fact that the em-
ployer had never engaged in any drug testing notwithstanding
the existence of the rule which allegedly permitted it. The
judge had observed, “drug testing did not exist at the facility
prior to the implementation of the Substance Abuse Policy.
The introduction of testing where no such test had been utilized
heretofore certainly was a change.” Id. at 910. The Board in
reversing the judge on her ultimate conclusions in most respects
specifically addressed this issue. It concluded, “[W]e do not
agree with the Judge’s implication that the Respondent itself
waived its authority under rule 19 concerning drug testing by
failing to engage in it prior to the SAPP. . . . It would be inap-
propriate to conclude that the Respondent had abandoned its
right under the rule merely by not exercising it from the begin-
ning.” Id. at 901 fn. 12.
Although Bath Iron Works, supra, was decided under defer-
ral principles, the reasoning of the Board in the above cited
footnote is consistent with Storer, supra, and is in my view
more pertinent to the instant case, than the cases cited by the
General Counsel. All of these cases as well as others following
the rationale are clearly distinguishable from the present case,
in that in each of them the Employer’s therein affirmatively
tolerated conduct which had been allegedly prohibited by the
“existing” rule. Hyatt Regency, supra (rule prohibiting signing
in and signing out for another employee); Burns Electric, supra
(rule requiring employee to use gun and night stick); Bryant &
Stratton, supra (rule requiring faculty to hold classes for entire
period); Blossom Nursing, supra (rule against garnishments).
Thus the rationale of these cases as expressed in Hyatt Regency,
supra, is that the employer by tolerating and condoning infrac-
tions of the rule involved, had “changed from a system of lax,
sporadic enforcement into one of stringent enforcement.”
Therefore, the employer was obligated to notify and bargain
with the union before it instituted and implemented its “more
stringent enforcement of the rules.”
16 See also Electra-Flex Co., 238 NLRB 713, 731 (1978), enfd.
mem. 624 F.2d 2303 (7th Cir. 1979) (Bd. affirmed ALJ’s finding that
announcement of new rule violated the Act, although no evidence that
it was ever enforced. ALJ observed that rule was “neither disavowed
nor rescinded,” and therefore Act was violated although no one was
ever disciplined for violating the rule).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16
Such is not the case herein, since there is no evidence that
Respondent tolerated or condoned any infractions of its rules,
which can be construed as establishing a change in terms and
conditions of employment. While Respondent had suspected
some employees of drug use in 1995, it decided not to test at
that time, but rather to try to catch someone in the act. Simi-
larly in February 1996, it began to see more evidence of drug
use, but for financial reasons decided not to test at that time.
This evidence is hardly sufficient to establish that Respondent
tolerated and condoned any infractions of its rule. Rather, Re-
spondent simply chose not to exercise its right to test until
January 1997.
There can be no reasonable contention that employees were
misled into believing that Respondent would not test if neces-
sary, and it cannot be concluded that the mere failure of Re-
spondent to test employees in the past establishes that employ-
ees were no longer subject to this policy. Indeed, the evidence
establishes to the contrary that the policy was still in effect, in
view of the admission of the Union’s shop steward that the
“reissuance” of the testing policy in 1997 was “the same thing
we’ve had all along. It’s the same thing that you wrote back
when.”
Therefore, I conclude that the more dispositive precedent, in
addition to Storer, supra, and Bath Iron, supra, are such cases
as Sygma Network Corp., 317 NLRB 411, 415–417 (1995)
(drug testing based on existing policy, that employer reserved
the right to require if warranted in its opinion); Mitchellace,
Inc., 321 NLRB 191, 195–1996 (1996) (enforcement of no-
smoking rule based on preexisting rule); Kroger Co., 311
NLRB 1187, 1193 (1993) (posting of notice of existing rule
prohibiting employees access to copy machine and telephones
not violative of Act); North Kingstown Nursing Care Center,
244 NLRB 54, 66 (1979) (employer effectuated a long-existing
policy concerning performance evaluations); Markle Mfg. Co.,
239 NLRB 1142, 1147 (1979) (Posting of safety rule which
was first posted years before and had never been rescinded not
violative of the Act. Rules held to be merely a “codification of
rules which had been in existence for several years, and their
posting does not constitute a unilateral change in working con-
ditions about which respondent must bargain with the union).”
Accordingly, based on the above analysis and authorities, I
conclude that Respondent’s action in “reissuing” its drug test-
ing policy was merely a notification and reminder to its em-
ployees of an existing policy, which was still in effect and that
employees were still subject to. Thus its action at that time did
not constitute a change in terms and conditions of employment
of its employees, and it was not obligated to notify or bargain
with the Union prior to such “reissuance.”
I, therefore, shall recommend that this allegation of the com-
plaint be dismissed.
The General Counsel also contends, consistent with the
complaint, that Respondent’s action in testing James Harty on
February 12, 1997, constituted a unilateral change to its own
policy, even if that policy was in effect. Thus, the General
Counsel asserts that Respondent under its policy, can require
employees to undergo testing “if it has reason to believe that
the employee is in violation of the aforementioned rules.”
(Emphasis added.) Therefore, it follows according to the Gen-
eral Counsel (as well as the Charging Party) that a generalized
suspicion that a group of employees may be involved with
drugs is insufficient to constitute a reasonable belief that a par-
ticular employee (i.e., Harty) has violated the Respondent’s
rules. Further, the General Counsel correctly points out that
General Gardner admitted that he personally did not believe
that Harty was guilty of drug use although he suspected at least
one of the unit employees was involved with drugs. Therefore,
this represents a change from particularized suspicion to gener-
alized suspicion, and is akin to a change from reasonable cause
to random testing which is material and substantial and there-
fore unlawful. Murphy Diesel Co., 184 NLRB 757, 763 (1970).
Respondent, on the other hand argues that the evidence dis-
closes that it had reasonable cause to believe that all employees
(including Harty) might have been using drugs, so that it was
within its rights to test the entire maintenance unit. Thus, for a
period of nearly a year, both Koen and Francis had found in-
creasing amounts of drug paraphernalia in areas frequented by
all members of the unit, including Harty. Moreover, Francis
and Koen were informed by an employee that drug use was
extensive aboard shop during business hours and that some of
such employees were operating heavy equipment. Several
specific names of employees allegedly using drugs were given
to Francis and Koen, and Harty was one of the names reported
to them as a drug user. Finally, Francis was told by the em-
ployee that “no one in the maintenance crew would pass the
test.”
Respondent concedes that Gardner, who made the ultimate
decision to test everyone in the department, did not believe that
Harty was involved, and testified that he placed little reliance
on the “hearsay” reports of drug use from other employees.
Nonetheless, Respondent correctly points out that Gardner did
not disregard these reports, but merely placed more reliance on
the physical evidence of drug use that Respondent’s officials
found in areas where all maintenance employees, including
Harty worked from time-to-time. Thus Respondent contends
that all of the above evidence can be considered as probative of
reasonable cause to believe that potentially every employee in
the department may have been using drugs. Therefore, in order
to help determine which of the employees were using drugs, it
complied with the requirement of “reasonable cause to believe
that the employee is in violation of the rules.
I find that the arguments and contentions of both the General
Counsel and Respondent to have some merit, and to be reason-
able and plausible interpretations of Respondent’s drug policy.
If I were an arbitrator considering this matter, I would be com-
pelled to decide which of the two interpretations is correct or
more plausible.
However, while the Board does in various circumstances in-
terpret contractual clauses, where as here, the dispute is solely
one of contract interpretation, and there is no evidence of ani-
mus, bad faith or an intent to undermine the Union, the Board
will not seek to determine which of two plausible contract in-
terpretations is correct. Westinghouse Electric Co., 313 NLRB
452 (1993); Crest Litho, Inc., 308 NLRB 108, 110 (1992); At-
wood Morrill Co., 289 NLRB 794, 795 (1988); Thermo Elec-
tron Co., 287 NLRB 820 (1987); NCR Corp., 271 NLRB 1212,
1213 (1984); and Vickers, Inc., 153 NLRB 561, 570 (1965).
INTREPID MUSEUM FOUNDATION 17
Based on the above cited precedent, I conclude that Respon-
dent “had a sound arguable basis for ascribing a particular
meaning to his contract and his action is in accordance with the
terms of the contract as he construes it.”17 Crest Litho, supra at
110. Therefore, Respondent has not made an unlawful unilat-
eral change in violation of the Act, by testing Harty along with
the other employees in the maintenance department.
The General Counsel also asserts that the discharge of Harty
on February 20, 1997, is an unlawful unilateral change in viola-
tion of Section 8(a)(1) and (5) of the Act. The primary argu-
ment in support of this contention is that Harty was terminated
pursuant to the alleged unlawfully announced and implemented
test. Hyatt Regency, supra. Since I have concluded above that
the test was neither unlawfully announced nor unlawfully im-
plemented, this theory of a violation with respect to the dis-
charge of Harty has no merit.
However, the General Counsel and the Charging Party make
alternative contentions that even if the testing of Harty was
lawful, the discharge was not, since Respondent unilaterally
changed the agreement by failing to adhere to two contract
requirements in terminating Harty. Thus, they assert that work
rule 7 requires both that Harty be given a warning letter for a
first offense and that any discipline be based only on taking or
using drugs on the premises.
Respondent argues on the other hand that work rule 7 must
be read in conjunction with the existing drug policy which does
not contain the requirement of two warnings before an em-
ployee is discharged or disciplined for failing a drug test.
Moreover, rule 7 itself according to Respondent does not nec-
essarily mandate warning letters for violation of Respondent’s
prohibition of drug use, since the sentence mandating two let-
ters before an employee can be discharged appears before the
sentence describing misconduct of drug and alcohol use, and
after the sentence describing other types of less serious miscon-
duct, such as acting lewdly or using obscene language. Thus,
Respondent asserts, consistent with the testimony of Gardner,
that although awkwardly written, the only sensible construction
of this rule is that only for less serious offenses is Respondent
required to issue a warning letter. But for the most serious
offenses in that rule, such as drug or alcohol use, no warning
letter is necessary.
As for the section of the rule which refers to taking or using
drugs “on the premises,” Gardner testified that in his view Re-
spondent is permitted to discipline an employee for coming to
work under the influence of drugs, regardless of where the em-
ployee actually took the drugs. Indeed, Gardner conceded that
Harty informed him that he (Harty) had taken the drug at a
party. However, in Gardner’s view once Harty failed the drug
test, this demonstrated that Harty came to work under the influ-

17 While this case does not involve the interpretation of a contract
clause, this fact is not significant. Respondent’s drug testing policy
was as I have found in effect and part of the terms and conditons of
employment of Respondent’s maintenance employees. Therefore, for
pruposes of assessing whether an action constitutes an unlawlful unilat-
eral change, the policy is considered as if it were part of the contract.
ence of drugs and permitted Respondent to discharge him under
its policy.18
In my view, these issues are once again controlled by the
above-cited precedent, as I conclude that Respondent acted
once again pursuant to a plausible interpretation of the contract.
Thus, I find that Respondent’s construction of the agreement,
i.e., that it must be read in conjunction with its preexisting test-
ing policy is plausible. Further, I also find that the above-
described interpretations of these documents, that Respondent
is not required to issue a prior warning letter to an employee
who fails a drug test before disciplining said the employee, and
that an employee who fails a drug test can be construed as hav-
ing come to work “under the influence” of drugs, are also plau-
sible and reasonable.
Accordingly, since I conclude that Respondent acted pursu-
ant to plausible interpretations of its contractual obligations to
the Union, I conclude that it has not unilaterally changed its
employees terms and conditions of employment by terminating
Harty.
I also find that the application of other precedent warrant
dismissal of this contention by the General Counsel. Thus, an
action by an employer directed at a single employee is not con-
sidered to be on unilateral charge in working conditions, unless
it is established that the action represent a change in policy
applicable to employees in general. 88 Transit Lines, Inc., 300
NLRB 177, 179 (1990); Cable Vision, Inc., 249 NLRB 412,
416 (1980), enfd. 660 F.2d 1(1st Cir. 1981); Brown & Con-
nolly, Inc., 237 NLRB 271, 280 (1978); and Mike O’Connor
Chevrolet-Buick G.M.C. Co., 209 NLRB 701, 704 (1974).
Therefore, based on the evidence disclosed herein, Harty
was the only unit employee discharged, and it was not estab-
lished that Respondent changed its policy, even if it is con-
strued as a change from the contract’s requirements, to make it
applicable to employees in general or to any other employee in
the unit for that matter. Thus, even if I were to conclude that
Respondent’s interpretation of the agreement was not plausible,
since its action involved only Harty, and the evidence does not
disclose that it would take the same position with respect to
other employees, the discharge of Harty cannot be found to be a
unilateral change.
Further, in my view a logical extension of the General Coun-
sel and the Charging Party’s position on this issue would result
in the Board having to judge whether a discharge violates the
“just cause” provisions that appear in many collective-
bargaining agreements. Indeed, in the instant case, the contract
between the parties does not contain a clause providing that
discharges must be for “just cause,” or other similar language
that frequently appears in collective-bargaining agreements.
Instead the parties negotiated a comprehensive set of work rules
which define Respondent’s rights to discipline employees
which includes work rule 7, the rule in question herein. Thus,
by arguing that Respondent has unilaterally changed working
conditions, by terminating Harty without following work rule
18 I note in that connection that Respondent’s drug policy specifi-
cally states that “any employee under the influence of drugs” . . . while
conducting Company business will be subject to appropriate discipline,
up to and including discharge.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18
7’s requirements, the General Counsel has in effect asserted
that Respondent has not established the requisite “just cause”
under the contract justifying Harty’s discharge. I do not believe
that the Board intends that its precedent concerning unilateral
changes mandates deciding whether a particular discharge was
effectuated for “just cause.” Yet, the acceptance of the General
Counsel’s argument concerning this issue, would in my view
open the door to such a contention to be made.
Accordingly, based on the foregoing I recommend that the
complaint be dismissed insofar as it alleges that the discharge
of Harty is violative of the Act.
However, the General Counsel also alleges that Respondent
violated the Act by its issuance of its drug testing memorandum
dated February 5, 1997. Although this memorandum had no
bearing on the termination of Harty,19 the General Counsel
argues that it represents a significant change in Respondent’s
existing policy, and was unilaterally implemented in violation
of Section 8(a)(1) and (5) of the Act. I agree.
The February 5 memorandum significantly expands the Re-
spondent’s prior policy by adding random testing for employ-
ees who are involved in the operation of vessels, which admit-
tedly applies to bargaining unit employees who do at times
perform such work. Random testing is “a distinctly different
condition of employment” than testing based on reasonable
suspicion, and Respondent’s inclusion of random testing in its
February 5 version of its policy, “fundamentally alters the na-
ture of the policy and its effect on employees.” Delta Tube,
323 NLRB 85 (1997); see also Tocco, 323 NLRB 480 (1997).
Since it is undisputed that Respondent announced this
change in its policy without notifying or bargaining with the
Union, it has thereby violated Section 8(a)(1) and (5) of the Act
by such conduct.20
I would also note that although there is no evidence that Re-
spondent ever tested any unit employees pursuant to this unlaw-
ful expansion of its policy, a violation is nonetheless warranted,
since employees were subject to this policy for some period of
time, until the parties reached agreement on a drug testing pol-
icy to be included in their contract. Storer, supra at 296–297.
CONCLUSIONS OF LAW
1. The Respondent, Intrepid Museum Foundation, Inc., is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Local 1909, International Longshoreman’s Association
(the Union) is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. At all times material, the Union has been the exclusive
collective-bargaining representative of Respondent’s employ-
ees in an appropriate unit as described below:

19 The General Counsel does not so assert, and the evidence based on
the credible testimony of Gardner establishes that this memorandum
was not considered in Respondent’s decision to either test unit employ-
ees on February 12, 1997, or to terminate Hardy on February 20, 1997.

20 In view of this finding, I need not decide whether as the General
Counsel contends, Respondent’s addition of the term group of employ-
ees to the definition of reasonable suspicion, constitutes a material,
substantial and significant change in employees’ conditions of em-
ployment.
All full-time and regular part-time timekeepers, cleaners, rest-
room matrons, coat checkers, and maintenance workers em-
ployed by Respondent at its facility at Pier 88, 46th Street and
12th Avenue, New York, New York, excluding all other em-
ployees, including office clerical employees and guards, pro-
fessional employees and supervisors as defined in the Act.

4. Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (5) of the Act by unilater-
ally changing its drug testing policy on or about February 5,
1997, without notifying or bargaining with the Union.
5. Respondent has not otherwise violated the Act as alleged
in the complaint.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, it is recommended that Respondent cease and
desist therefrom and take certain affirmative action designed to
effectuate the purposes and policies of the Act.
Although ordinarily, the Board requires recession of unlaw-
ful unilateral changes, where as here, the parties have bargained
over and subsequently reached agreement concerning a drug
testing policy, it is not appropriate to order such a recession.
Storer, supra at 297. In such circumstances a cease and desist
order is deemed sufficient to remedy the violations found.
Based on the foregoing findings of fact and conclusions of
law and the entire record, I make the following recommended21
ORDER
The Respondent Intrepid Museum Foundation, Inc., New
York, New York, its officers, agents, representatives, and as-
signs, shall
1. Cease and desist from
(a) Changing its drug testing policy as it applies to the em-
ployees in the following appropriate bargaining unit without
first affording the Union the opportunity to bargain over the
proposed changes.

All full-time and regular part-time timekeepers, cleaners, rest-
room matrons, coat checkers, and maintenance workers em-
ployed by Respondent at its facility at Pier 88, 46th Street and
12th Avenue, New York, New York, excluding all other em-
ployees, including office clerical employees and guards, pro-
fessional employees and supervisors as defined in the Act.

(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in New York, New York, copies of the attached notice
21 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
INTREPID MUSEUM FOUNDATION 19
marked “Appendix.”22 Copies of the notice, on forms provided
by the Regional Director for Region 2, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail at its own expense a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since February 5,
1997.
(b) Within 21 days after service by the Region file with the
Regional Director a sworn certification of responsible official
on a form provided by the region attesting to the steps that the
Respondent has taken to comply.
(c) IT IS FURTHER ORDERED that all violations alleged in
the complaint but not found are dismissed.

22 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.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

WE WILL NOT change our drug testing policy without giv-
ing Local 1909, International Longshoremen’s Association a
meaningful opportunity to bargain over the proposed changes
on behalf of employees in the following appropriate unit:

All full-time and regular part-time timekeepers, cleaners, rest-
room matrons, coat checkers, and maintenance workers em-
ployed by us at our facility at Pier 88, 46th Street and 12th
Avenue, New York, New York, excluding all other employ-
ees, including office clerical employees and guards, profes-
sional employees and supervisors as defined in the Act.

WE WILL NOT in any like or related manner, interfere with,
restrain or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.

INTREPID MUSEUM FOUNDATION, INC.