Lively Electric, Inc.

National Labor Relations Board - Board Decisions

Feb 24, 1995

316 N.L.R.B. 471 (N.L.R.B. 1995)

471
316 NLRB No. 87
LIVELY ELECTRIC, INC.
1 Vonck testified that he gave Stimac the choice between being
paid the contract rate with an express deduction for the insurance or
being paid lower wage rates. He regarded the latter option, which
Stimac accepted, as having advantages for Stimac because the gross
pay subject to taxation was lower than it would be if the correct pay
rate were stated and a deduction then taken.
2 Local 146, Electrical Workers (IBEW).
3 Control Services, 303 NLRB 481, 485 (1991), enfd. mem. 975
F.2d 1551 (3d Cir. 1992).
4 See, e.g., Manufacturing Services, 295 NLRB 254 (1989), and
cases there cited. This is sometimes referred to as the ‘‘Crystal
Princeton’’ line of authority, referring to Crystal Princeton Refining
Co., 222 NLRB 1068 (1976).
Lively Electric, Inc. and Eric D. Stimac. Case 14–
CA–22433
February 24, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND TRUESDALE
On November 4, 1993, Administrative Law Judge
James L. Rose issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
National Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
I. RELEVANT FACTUAL FINDINGS
Charging Party Eric Stimac was an employee of the
Respondent whose record of driving-while-intoxicated
citations required the Respondent to pay more than
$1500 a year in excess insurance premiums (because
Stimac was in a high risk driver pool) and to put up
with certain inefficiencies because Stimac could not be
insured to drive to worksites some of the specially
equipped trucks that he and fellow employees operated
at those sites.
The Respondent’s sole owner, Tom Vonck, had dis-
covered Stimac’s driving problems only after hiring
him as a residential wireman trainee, but Vonck agreed
to keep Stimac on so long as it was understood that
he would not be paid all the periodic wage rate in-
creases called for under the applicable multiemployer
collective-bargaining agreement. The judge, crediting
Vonck and discrediting Stimac, found that Stimac ac-
cepted this arrangement. Thus, until the events that im-
mediately gave rise to this case, amounts equivalent to
what Vonck regarded as the excess costs Stimac’s
driving problems imposed on the Respondent were
‘‘factored into his wage rate.’’ As the judge found,
‘‘the essence of [the agreement between Vonck and
Stimac] was that Stimac would be paid substantially
less than the contract rate in order to make up for the
extra costs in having him covered by vehicle insur-
ance.’’1
Stimac eventually became dissatisfied with his pay
and complained to the Union2 about the discrepancy
between his effective wage rate and the contract rate
for residential wiremen, a classification for which he
qualified under the collective-bargaining agreement by
virtue of having worked for the Respondent for 2 years
as a trainee wireman. The Union sent the Respondent
a letter demanding compliance with the contract rate.
Stimac’s next paycheck reflected the contract rate with
a deduction of $100 for insurance. When Stimac pro-
tested, Vonck essentially told him that he would con-
tinue to hold Stimac to their agreement and that if
Stimac did not like that, he could seek other employ-
ment through the union hiring hall. Stimac angrily quit
his job rather than accept the noncontractual reduction
in his pay.
II. THE JUDGE’S DECISION AND THE RESPONDENT’S
EXCEPTIONS
The judge found that the circumstances under which
Stimac quit amounted to a constructive discharge in
violation of Section 8(a)(3) and (1). In so finding, he
relied on Board precedents holding that a constructive
discharge may be found whenever an employee quits
‘‘after being confronted with a choice between resigna-
tion or continued employment conditioned on the relin-
quishment of statutory rights.’’3 In this case, the judge
reasoned, the statutory right which Stimac was forced
to relinquish was his right to be paid according to ap-
plicable contract rates. The judge also found that
Vonck’s decision to settle on the particular $100-per-
week figure for the insurance deduction after Stimac
complained to the Union about his rate of pay ‘‘re-
flected a specific unlawful motivation,’’ i.e., displeas-
ure at Stimac’s having gone to the Union over the pay
rate issue. The judge did not, however, expressly rely
on another line of Board authority permitting a finding
of constructive discharge whenever it is shown that an
employer has imposed working conditions on an em-
ployee ‘‘so difficult or unpleasant’’ as to force him or
her to resign and that it has done so because of that
employee’s union or other protected activities.4
The Respondent excepts, arguing that even assuming
it might be guilty of a contractual breach, the cir-
cumstances surrounding Stimac’s departure did not
amount to a constructive discharge under either of the
Board’s two constructive discharge theories. For the
following reasons we agree, and we therefore reverse
the judge and dismiss the complaint.
472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 See White-Evans Service Co., 285 NLRB 81 (1987).
6 E.g., Control Services, supra; RCR Sportswear, 312 NLRB 513
(1993).
7 RCR Sportswear, supra, 312 NLRB at 514 fn. 7.
III. ANALYSIS
The complaint in this case—which was based on the
unfair labor practice charge filed by employee
Stimac—does not allege an unlawful midterm contract
modification in violation of Section 8(a)(5) and (1), al-
though the facts of the Respondent’s pay practices re-
garding Stimac would probably have supported such a
finding had an appropriate charge been filed. Rather,
it alleges that the discharge of Stimac violated Section
8(a)(3) and (1), invoking a section of the Act which
requires a showing of discrimination with a motive of
encouraging or discouraging union membership.
In Superior Sprinkler, Inc., 227 NLRB 204 (1976),
the Board explained the basis for supplying the dis-
criminatory motive element in what might be called a
‘‘Hobson’s choice’’5 constructive discharge case—a
case in which the theory is that the employee was un-
lawfully forced to a choice between losing his job and
giving up statutory rights. The respondent employer in
Superior Sprinkler had unlawfully terminated its rela-
tionship with the union and announced an intent to op-
erate nonunion henceforth. The employees in question,
all union members, quit their jobs rather than work
under nonunion conditions. The Board found construc-
tive discharges in violation of Section 8(a)(3) and (1),
reasoning as follows (id. at 210 footnote omitted):
Superior . . . offered its employees the choice of
accepting the employer’s unlawful repudiation of
its statutory bargaining obligations and working
under unlawfully imposed conditions of employ-
ment or quitting their employment. Thus, the em-
ployees’ continued employment would be condi-
tioned upon their abandonment of rights guaran-
teed them under the Act, that is, the right to bar-
gain collectively through representatives of their
own choosing. Forcing employees to make such a
choice; namely, to work under illegally imposed
conditions or to quit their employment ‘‘discour-
ages union membership almost as effectively as
actual discharge.’’
As the Fifth Circuit subsequently observed in Electric
Machinery Co. v. NLRB, 653 F.2d 958, 965 (5th Cir.
1981), the Board in Superior Sprinkler was essentially
relying on a discriminatory motivation theory derived
from NLRB v. Great Dane Trailers, 388 U.S. 26, 34
(1967), i.e., it had found that the employer’s conduct
was ‘‘‘inherently destructive’ of important employee
rights,’’ so that ‘‘‘no [independent] proof of anti-union
motivation’’ would be required. Electric Machinery,
supra at 965, quoting Great Dane. The court agreed
that totally repudiating employees’ collective-bargain-
ing representative and forcing them to work in a non-
union shop would meet the ‘‘inherently destructive’’
test, but it did not agree that the conditions imposed
on the employees in the case before it met that test.
The employer in Electric Machinery had violated Sec-
tion 8(a)(5) and (1) of the Act by imposing new terms
and conditions of employment after postcontract-expi-
ration bargaining but before impasse was reached and
by dealing individually with the unit employees in try-
ing to persuade them to accept the employer’s final
proposals. Not long after the commission of those vio-
lations, the employer signed a letter of assent making
it a party to the new multiemployer agreement, and the
dispute with the union over working conditions ended.
The court upheld the findings of 8(a)(5) violations for
unilateral changes and direct dealing; but it did not
agree that any of the facts could support ‘‘an inference
of anti-union animus’’ or that the employer’s conduct
was ‘‘so egregious as to eliminate the General Coun-
sel’s burden of proving anti-union animus.’’ It noted
that the employer had taken ‘‘no action which would
permanently jeopardize future union status and, in fact
three weeks after committing the unfair labor prac-
tices’’ had rejoined the multiemployer association.
Supra, 653 F.2d at 966.
Similar considerations foreclose a finding of inher-
ently destructive conduct here. The failure to follow
the contract in determining the level of Stimac’s wage
rates in no way signaled essential hostility to the bar-
gaining relationship or to Stimac’s sentiments concern-
ing the Union. Indeed, according to undisputed testi-
mony, Vonck himself was a longtime union member
who was still paying dues to the Union; and the
Union’s business agent testified that to his knowledge
the Respondent had always complied with the applica-
ble collective-bargaining and trust fund agreements. To
be sure, in some of our recent cases,6 we have found
constructive discharges in the absence of express total
repudiation of the employees’ bargaining representa-
tive; but we cautioned in one of those decisions that
‘‘we were not suggesting that employees are privileged
to quit their employment whenever there is alleged a
mere breach of the collective-bargaining agreement.’’7
Those recent cases probably represent the outer limit
for determining that unlawfully imposed conditions are
so destructive of important Section 7 rights that no
motivation element of Section 8(a)(3) is necessary.
Given the circumstance prompting the employee’s res-
ignation in the present case—a unilateral modification
of his pay rate related to his unique insurability prob-
lems—this case is clearly over the line.
There remains, of course, the judge’s finding that
Vonck acted in hostility to Stimac’s act of going to the
union business agent to seek vindication of his contrac-
tual rights. At first blush that might appear to allow us
473LIVELY ELECTRIC, INC.
8 Contrary to our dissenting colleague’s assertion, this is not mere
‘‘speculation’’ on our part. The evidence of what Stimac had been
paid, the applicable wage rate for his classification, and his agree-
ment with Vonck to have his compensation reduced because of his
insurability problems are all in the record and are not subject to fac-
tual dispute.
As for our colleague’s observation that the judge ‘‘declined’’ to
use a Crystal Princeton analysis, we find that immaterial. Under
Board law, a constructive discharge predicated on an employee’s act
of quitting can be shown either under the ‘‘Hobson’s choice’’ line
of cases or the Crystal Princeton line. As argued above, in keeping
with the admonition in RCR Sportswear, supra at 514 fn. 7, we
would not find that the former line of precedent automatically ap-
plies whenever an employer has committed some unfair labor prac-
tice against an employee and the employee has decided to resign
over it. As to the latter line, a mere showing of unlawful motivation
on the part of the employer is not sufficient.
The unlawfully motivated action on the part of the employer must
create an employment condition sufficiently ‘‘difficult or unpleas-
ant’’ to cause a reasonable person to quit (see cases cited at fn. 4,
supra). Because the facts here do not support a violation under any
available theory of constructive discharge liability in Board law, we
do not find the violation.
9 The record indicates that Stimac filed a grievance, but it was
over what he had claimed was his discharge, not over the wage rate
issue; and the Union’s business agent testified that the Union had
tried to take it to the contractual joint labor-management grievance
adjustment panel, but had proceeded no further when that panel de-
clined to hear it.
to fit this case into the Crystal Princeton line of au-
thority. There is an impediment, however: the judge
found no unlawful motive in the Respondent’s original
reduction of Stimac’s wages to offset the excess insur-
ance costs. Thus, the unlawful employment condition
imposed on the basis of Stimac’s union activities is
simply the difference between the $100 deduction
made from Stimac’s paycheck after he went to the
Union and the wage rate adjustments to which he had
previously agreed. The evidence shows that during the
weeks before Stimac went to the Union, he was being
paid $9.83 an hour, although he was contractually enti-
tled to $13.13 an hour. This represents a discrepancy
of $3.30 an hour, or $132 for a 40-hour week. That,
in turn, suggests that when Vonck made the $100 de-
duction from Stimac’s paycheck, he was not imposing
a condition ‘‘so difficult and unpleasant’’ as to force
a reasonable person to quit. Rather, he was actually
raising Stimac’s pay by effectively decreasing the
downward adjustment. This hardly meets the Crystal
Princeton test.8
Finally, even apart from the logic of our precedents,
it seems ill advised as a matter of policy to encourage
employees to quit their jobs whenever they suffer any
unlawful condition, at least if they have avenues for
remedying that condition. In this case, Stimac could
have filed a grievance over his pay and, if the Re-
spondent refused to accede to the grievance, Stimac
could have pursued it while he worked on the job.9 He
could also have filed a charge with the Board, if for
any reason the contractual grievance-arbitration route
were blocked. As noted at the outset, however, we
have no complaint allegation targeting the March 1993
pay reduction as a separate violation, either as a
discriminatorily motivated reduction in violation of
Section 8(a)(3) or as a breach of the collective-bargain-
ing agreement in violation of Section 8(a)(5). All we
have is evidence of the breach, Stimac’s angry resigna-
tion in response, and a complaint allegation of a dis-
charge in violation of Section 8(a)(3) and (1). For the
reasons stated above, the record here does not support
finding such a violation.
ORDER
The complaint is dismissed.
CHAIRMAN GOULD, dissenting.
Contrary to my colleagues, I would affirm the
judge’s finding that the Respondent constructively dis-
charged Charging Party Eric Stimac in violation of
Section 8(a)(3) and (1) of the Act.
The Respondent hired Stimac in 1988 as a residen-
tial trainee wireman. Under the collective-bargaining
agreement in effect, a trainee starts at 60 percent of the
hourly pay received by a residential wireman. The
agreement provides for a trainee’s salary to increase 10
percent every 6 months until he qualifies as a wire-
man. However, the Respondent and Stimac had agreed
that his hourly rate would be reduced by an unspec-
ified amount to cover extra insurance costs related to
his poor driving record. Consequently, the Respondent
never raised Stimac’s salary beyond that of 75 percent
of the wireman rate until Stimac complained to the
Union, Local 146, Electrical Workers (IBEW), in early
March 1993. The Union then wrote to the Respondent
requesting that it grant Stimac wireman status and pay
him the appropriate wage rate of $13 per hour.
At the next pay period which ended March 10, the
Respondent increased Stimac’s pay to $13.13 per hour
for 39.5 hours of work, which after taxes and other
standard deductions would have left Stimac with a net
pay of $408.19. The Respondent, however, deducted
an additional $100 allegedly to cover the costs associ-
ated with Stimac’s poor driving record.
When he noticed the $100 deduction, Stimac loudly
complained to the Respondent’s owner, Thomas
Vonck, who responded that: ‘‘I cannot afford to pay
both. I can pay you what the union prescribes; but this
is the arrangement and [if] you can agree to that, great.
If you don’t like that, you will have to exercise your
option to go sign into the [union] hall and seek em-
ployment from them.’’ Stimac then quit, returning at a
later date to collect his last paycheck and a pink slip.
The judge found that Stimac had a statutory right to
be paid in accordance with the collective-bargaining
agreement. The judge also found that the Respondent
had constructively discharged Stimac because he quit
his job in reaction to the Respondent’s ‘‘Hobson’s
choice’’ of resigning or continuing to work in deroga-
474 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In this regard, the judge found that Vonck was unable to defend
the $100 figure ‘‘except in the most general terms.’’
2 My colleagues’ reliance on the fact that Vonck himself was a
longtime union member who was still paying dues to the Union and
that the Respondent had always complied with the applicable collec-
tive-bargaining and trust fund agreements is misplaced. These facts
in no way detract from the judge’s finding that the Respondent’s
conduct toward Stimac was motivated by unlawful union consider-
ations.
tion of the collective-bargaining agreement. The judge
concluded that the proffer of such a choice constituted
a constructive discharge in violation of Section 8(a)(3)
and (1) of the Act, citing Control Services, 303 NLRB
481 (1991), and RCR Sportswear, Inc., 312 NLRB 513
(1993). The judge found that the Respondent was un-
able to explain how it arrived at the $100 figure it de-
ducted from Stimac’s paycheck and thus that the Re-
spondent had a specific unlawful motivation, i.e., to re-
taliate against Stimac for having pressed through the
Union his entitlement to the contractual rate.
Contrary to my colleagues, I would agree for the
reasons stated by the judge that by its conduct the Re-
spondent constructively discharged Stimac. My col-
leagues do not dispute the judge’s finding that Stimac
had a statutory right to receive the contractual wage
rate or that the Respondent’s conduct left Stimac with
the choice of quitting or continuing to work in deroga-
tion of that statutory right. Rather, they base their dis-
missal of the complaint on his finding that the Re-
spondent’s conduct was not ‘‘inherently destructive’’
of Stimac’s Section 7 rights and that the working con-
ditions imposed on Stimac were not ‘‘so difficult or
unpleasant’’ as to force him to quit.
I need not engage in a debate with my colleagues
over the applicability of an ‘‘inherently destructive’’
analysis in constructive discharge cases. Such an anal-
ysis is clearly unwarranted in this case since the judge
specifically found that the Respondent’s conduct was
motivated by Stimac’s union activities. While my col-
leagues are correct that the judge found no unlawful
motive in the Respondent’s original reduction of
Stimac’s wages to offset the excess insurance costs,
they ignore the fact that the judge found that the Re-
spondent ‘‘had a specific unlawful motivation in speci-
fying the $100 per week condition.’’1 Similarly unwar-
ranted in this case is my colleagues’ discussion of an
‘‘intolerable working conditions’’ analysis. The judge
specifically declined to utilize such an analysis, and
the General Counsel filed no exceptions. I note, how-
ever, that my colleagues reach the conclusion that
Stimac actually received a pay increase after he sought
the Union’s assistance, a theory never advanced by the
Respondent and based on mere speculation on their
part.
Finally, I note that although Stimac could have cho-
sen to continue to work while pursuing a grievance or
a charge with the Board, the Act does not require him
to do so. The Respondent’s conduct constituted a de-
liberately deceptive scheme to circumvent Stimac’s
statutory right to receive the contractual wage rate in
retaliation for his having sought the Union’s assistance,
and in such circumstances the Act protects Stimac’s
right to refuse to tolerate such conduct.2 Accordingly,
I would find, in agreement with the judge, that the Re-
spondent constructively discharged Stimac in violation
of Section 8(a)(3) and (1) of the Act.
Kathy J. Talbott-Schehl, Esq., for the General Counsel.
James P. Baker, Esq., of Springfield, Missouri, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter
was tried before me on August 12, 1993, at Saint Louis,
Missouri, on the General Counsel’s complaint which alleged
that on March 12, 1993, the Respondent discharged Eric D.
Stimac, the Charging Party, in violation of Section 8(a)(3) of
the National Labor Relations Act. The Respondent denied
that it engaged in any activity violative of the Act.
Following the hearing, both counsel submitted briefs. On
the record as a whole, including my observation of the wit-
nesses, briefs, and arguments of counsel, I issue the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges that the Respondent, an electrical
contractor doing business in Illinois, meets the Board’s juris-
dictional standard on an indirect outflow basis, in that during
the 12-month period ending May 31, 1993, it performed
services in excess of $50,000 for Christian County (Illinois)
Mental Health Association which in turn meets the Board’s
jurisdictional standards. The Respondent denied jurisdiction
in its answer, but at the hearing stipulated to these facts.
Accordingly, I find that the Respondent meets the Board’s
jurisdictional standards and is an employer engaged in inter-
state commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATION
It is admitted, and I find, that Local Union 146, Inter-
national Brotherhood of Electrical Workers, AFL–CIO (the
Union) is a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts in Brief
The Respondent is a corporation wholly owned by Thomas
L. Vonck. He began working for the Respondent in 1975 and
in 1988 bought the business from the original owner.
475LIVELY ELECTRIC, INC.
1 Attached to the letter was an addendum to the contract giving the
effective date for $13.13 as ‘‘6/1/92.’’ This appears to have been a
typographical error and should read ‘‘6/1/93.’’
The Respondent has been a party to successive collective-
bargaining agreements with the Union, and its electrician em-
ployees are members of the Union, as is Vonck.
Eric Stimac started with the Respondent as a residential
trainee in early 1988. According to his testimony, he became
a member of the Union in April 1989 though the Union’s
records indicate he was initiated in February 1990. Unex-
plained is how he avoided becoming a member after his 31st
day of employment as was required by the collective-bar-
gaining agreement. In any event, under that agreement, as a
trainee he received 60 percent of the residential wireman’s
rate, and this was to increase by 10 percent a year until he
became classified as a residential wireman.
However, for the pay period ending March 3, and those
preceding, Stimac’s hourly rate was $9.83, which has no ap-
parent basis in the contract, being about 75 percent of $13.
A third 6-month trainee is to receive 70 percent of the jour-
neyman rate and a fourth 6-month trainee 80 percent. His
gross pay for 39 hours that week was $383.37 and his net,
after taxes and other deductions, was $311.50.
Sometime in early March 1993 Stimac went to the Union
to complain that he was still a trainee and, he testified, he
was told he should be upgraded. This meeting resulted in a
letter from the Union’s business manager to Vonck that
Stimac should be made a residential wireman and be given
the rate of $13 an hour.1
For the pay period ending March 10, Stimac’s hourly rate
was $13.13 (more than the Union’s letter required) which for
39-1/2 hours resulted in gross pay of $518.63 and a net, after
taxes and other standard deductions, of $408.19. However,
from this pay Vonck also deducted $100 to cover the ‘‘direct
and indirect’’ costs associated with the fact that Stimac’s
driving record was such that the Respondent had to have spe-
cial vehicle insurance for him and he could drive only one
of the Respondent’s trucks. Thus his net that week was
$308.19, which was less than the week before even though
he had worked one-half hour more.
Stimac testified that he picked up this pay check at about
4:30 p.m. on Friday March 12, noted the hourly rate, and left
believing he had received the indicated raise. A few minutes
later he discovered the $100 deduction, and went back to
confront Vonck.
According to Stimac, when he asked Vonck about the de-
duction, Vonck ‘‘looked at me, and he said, you do not go
round me to get a raise [which I do not credit]. I said, well,
this isn’t right. He said, that’s the way it is going to be, if
you don’t like it, I have your last two days pay and your
pink slip right here. He hand it to me and I throw everything
back in his face and told him he could keep them, I should
see him in court.’’
Stimac testified that he returned Monday to get the last
two paychecks and pink slip, which he needed in order to
be referred to another job by the Union. Stimac admitted that
he grabbed the pink slip from Vonck and added ‘‘that I
worked for a lot of assholes, but he was the biggest that I
had worked for and as far as I am concerned, I hoped he
would burn in hell.’’
Vonck’s version of the Friday and Monday events, which
I credit, is in any event substantially the same as Stimac’s,
except when Stimac returned Friday yelling about how unfair
the deduction was, Vonck ‘‘just told him, I am sorry, I can-
not afford to pay both. I can pay you what the union pre-
scribes, but this is the arrangement and you can agree to that,
great. If you don’t like that, you will have to exercise your
option to go sign into the hall and seek employment from
them.’’
The arrangement to which Vonck referred was the fact that
he had to pay extra to insure Stimac, in addition to which
there were costs involved because Stimac could only drive
one truck. Vonck testified that early on in Stimac’s employ-
ment they reached an agreement whereby Stimac’s hourly
rate would be reduced to accommodate what Vonck cal-
culated to be costs of about $100 per week.
Stimac admitted that he had a poor driving record, which
included a second driving while intoxicated shortly after
starting to work for the Respondent. And he admitted that
Vonck told him that insurance for him would be extra, how-
ever, he denied he ever agreed to be paid less than the con-
tract rate in return for Vonck buying insurance for him.
B. Analysis and Concluding Findings
The General Counsel argues that Stimac was discharged,
or alternatively, if he quit it was a constructive discharge be-
cause he had exercised his rights under the collective-bar-
gaining agreement. In either event, his termination was viola-
tive of Section 8(a)(3).
The Respondent contends that Stimac quit his job and that
Vonck did not change any condition of Stimac’s employment
in an adverse manner, nor did he retaliate because Stimac
had gone to the Union in order to get an increased wage rate.
There can be little doubt that Stimac quit his job and was
not discharged. Thus the issue is whether he was construc-
tively discharged when Vonck said that he would either have
to accept the $100 deduction each week, if he wanted the
$13.13-per-hour rate, or he could go to the Union and find
another job. I conclude it was.
While there are unanswered questions in this record, the
overwhelming evidence is that Stimac and Vonck made a
private agreement the essence of which was that Stimac
would be paid substantially less than the contract rate in
order to make up for the extra costs in having him covered
by vehicle insurance.
Vonck did not know of Stimac’s driving record when
Stimac was hired. However he shortly learned that the insur-
ance carrier would require Stimac to be covered on some
kind of an additional risk basis. Vonck understood that if
Stimac had no further problems, it would only last 6 months
but he advised Stimac that until he could get Stimac on the
regular policy, he would not be able to pay Stimac the full
contract rate.
Shortly thereafter, however, Stimac had a second citation
for driving while intoxicated, and Vonck learned that the ad-
ditional cost of having Stimac on the policy would last 5
years. Vonck told Stimac that if he wanted to continue to
work, his rate would have to be reduced to cover the addi-
tional cost of insurance. According to Vonck, whom I credit
on this point, Stimac agreed; however, I do not believe that
they ever agreed to a specific amount to be deducted from
the rate to which Stimac would otherwise be entitled. I con-
476 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
clude that Vonck made unilateral determinations of how
much he would pay Stimac whenever the collective-bargain-
ing agreement provided for a wage increase.
Stimac denied that he to agreed be paid less than the con-
tract rate in order to be covered under Vonck’s policy, or
that Vonck even told him why he would not pay Stimac the
rate to which he was entitled. However, Stimac did admit
that in the affidavit he gave a Board agent he said, ‘‘I had
gone to owner Tom Vonck about the wages, but he would
say—he kept bringing up that he had to pay higher insurance
on my driving.’’
I do not credit Stimac. Rather, I find that he agreed to ac-
cept less than the contract rate, or at a minimum, did not
protest Vonck’s decision to pay him less because of the
added cost of vehicle insurance. In discrediting Stimac I
found his demeanor to be less than candid, especially when
attempting to explain the discrepancy between his investiga-
tory affidavit and his testimony on the matter of whether he
had agreed to accept less than the contract to make up for
the cost of insurance. Further, in the summer of 1992 Stimac
asked for, and received, a 1-week unpaid vacation, during
which he applied for unemployment compensation. Such a
duplicitous act regarding his employment negatively affects
my confidence in his credibility.
The undisputed evidence suggests that the Respondent’s
compliance with the collective-bargaining agreement was at
best lax. Thus, for instance, Stimac was not required to join
the Union on completing 31 days’ employment. He was not
given the periodic raises required. Nevertheless, Stimac had
a statutory right to be paid in accordance with the contract,
and his failure to protest Vonck’s decision to pay him less
because of the cost of the insurance could not negate this
right. E.g., Beckley Belt Service, 279 NLRB 512 (1980).
Thus I conclude that when Stimac quit his job he did so
because Vonck gave him the choice of continuing to work
in derogation of the collective-bargaining agreement or re-
signing. The Respondent therefore violated Section 8(a)(3)
and (1) of the Act. RCR Sportswear, 312 NLRB 513 (1993).
In arguing against a finding of constructive discharge,
counsel for the Respondent relies on Algreco Sportswear
Co., 271 NLRB 499 (1984), and others, wherein the Board
has held that to prove a constructive discharge the General
Counsel must show that the conditions of employment are so
intolerable as to force the employee to resign. And, as in
Algreco, supra, not even a serious unfair labor practice nec-
essarily amounts to an intolerable condition.
However the intolerable condition theory differs from ‘‘the
theory of constructive discharge applicable to employees who
quit after being confronted with a choice between resignation
or continued employment conditioned on relinquishment of
statutory rights.’’ Control Services, 303 NLRB 481, 485
(1991).
Even if there had been an agreed to amount to cover the
insurance costs, or if Vonck could have given those costs in
a definitive way, Stimac still had the statutory right have the
collective-bargaining agreement apply without change.
Finally, it is obvious that the $100-per-week figure was ar-
rived at by Vonck in retaliation for Stimac having pressed
through the Union his entitlement to the contract rate. Vonck
was unable to defend the $100 figure except in the most gen-
eral terms, and even then could not come up direct and indi-
rect costs approaching $5200 per year. Thus, I conclude
Vonck had a specific unlawful motivation in specifying the
$100-per-week condition.
REMEDY
Having concluded that the Respondent has engaged in an
unfair labor practice, I shall recommend that it cease and de-
sist therefrom and take certain affirmative action, including
offering Eric D. Stimac immediate reinstatement to his
former position of employment without any loss of benefits
or other rights and privileges and make him whole for any
losses he may have suffered as a result of the discrimination
against him in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]