Turner Construction Co.

National Labor Relations Board - Board Decisions

Jun 30, 2003

339 N.L.R.B. 451 (N.L.R.B. 2003)

TURNER CONSTRUCTION CO. 451
Turner Construction Co. and Nicholas Fabrizio and
Robert Faria. Cases 19–CA–27478–1 and 19–
CA–27478–2
June 30, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On September 13, 2002, Administrative Law Judge
Thomas M. Patton issued the attached decision. Charg-
ing Party Fabrizio filed exceptions and a supporting
brief. The Respondent filed an answering brief.
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 briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Michelle Frank, Esq. and Daniel Sanders, Esq. for the General
Counsel.

1 Charging Party Nicholas Fabrizio has 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.
2 We agree with the judge’s conclusion that deferral to the arbitration
award is warranted under the criteria and the burden of proof set forth
in Olin Corp., 268 NLRB 573, 574 (1984). In adopting the judge’s
decision, we emphasize that the General Counsel has failed to show
that the contract issue is not factually parallel to the unfair labor prac-
tice issue, or that the arbitration panel was not presented generally with
the facts relevant to resolving the unfair labor practice issue. The con-
tract issue was whether the Respondent’s treatment of the Charging
Parties on March 14, 2001, violated provisions of the collective-
bargaining agreement, including Appendix 6 (Substance Abuse Policy),
relating to drug testing based upon suspicion, and requiring notification
to the Union of drug testing under certain circumstances. The unfair
labor practice issue was whether the Respondent’s treatment of the
Charging Parties on March 14, 2001, violated their statutory rights,
including their alleged right to the presence of a union representative
during an investigatory interview in which the Respondent allegedly
demanded that the Charging Parties submit to drug testing. These
issues can both be resolved by the same set of facts, i.e., the actions of
the Respondent’s supervisors and the Charging Parties on the morning
of March 14, 2001, when the Respondent began investigating a report
that the Charging Parties had been smoking marijuana in a car near one
of the Respondent’s projects. Accordingly, we agree with the judge
that the General Counsel has not shown by a preponderance of the
evidence that the contract and unfair labor practice issues were not
factually parallel.
William G. Jeffery, Esq., of Seattle, Washington, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
THOMAS M. PATTON, Administrative Law Judge. This case
was tried in Seattle, Washington, on December 20 and 21,
2001.3 Individuals Nicholas Fabrizio and Robert Faria each
filed charges on April 10, 2001. On September 28, 2001, the
Regional Director issued an Order consolidating cases, consoli-
dated complaint, and notice of hearing consolidating the cases
for hearing. The complaint alleges violations of Section 8(a)(1)
and (3) of the National Labor Relations Act (the Act) by Turner
Construction Co. (the Employer, Respondent, or Turner).
The Employer denies any violation of the Act and pleads af-
firmative defenses, including deferral to a final and binding
award under the terms of a collective-bargaining agreement.
On the entire record, including my observation of the de-
meanor of the witnesses4 and after considering the briefs filed
by the General Counsel and Respondent I make the following
FINDINGS OF FACT
I. JURISDICTION
The Employer is a corporation with a place of business in
Seattle, Washington, where it is engaged in the business of
construction and construction management. The Employer
admits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Employer admits and I find that Laborers International
Union, AFL–CIO, CLC (the Union) is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
A unit of Turner’s business is the Northwest District, which
has a Special Projects Division (SPD) that handles smaller pro-
jects including improvement work within buildings. Most of the
SPD work is subcontracted. One SPD project was tenant im-
provement work at a building in Seattle, Washington (the Pro-
ject). On March 14, Turner’s manager at the Project was Jim
Rucker. Laborers Fabrizio and Faria were the only two craft
employees of Turner on the Project at that time. Rucker’s im-
mediate supervisor was Tim Charoni, the general superinten-
dent of SPD. Shannon Sellers was safety director for the
Northwest District.
The Project was completed the first week of April, leaving
only “punchless work”, which Rucker described as sub-trades
3 Unless otherwise indicated, all dates are in 2001.
4 In assessing credibility, testimony contrary to my findings has not
been credited, based on a review of the entire record and consideration
of the probabilities and the demeanor of the witnesses. See NLRB v.
Walton Mfg. Co., 369 U.S. 404, 408 (1962).
339 NLRB No. 63
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 452
doing touchup painting5 and miscellaneous repairs, which was
completed by the end of April. The work being performed by
laborers was completed by April 6, and they were laid off at
that time.
The complaint alleges that Turner violated Section 8(a)(1)
and (3) by discharging Fabrizio and Faria on March 14, because
they refused to submit to a drug test. Fabrizio and Faria were
represented by the Union at the project and covered by a collec-
tive-bargaining agreement (the contract). The contract has de-
tailed substance abuse and drug testing provisions, as well as a
grievance procedure providing for final and binding resolution
by a board of conciliation.
The contract is a master agreement between the Associated
General Contractors of Washington and the Washington and
Northern Idaho District Council of Laborers. The contract was
in effect at all relevant times. Under the terms of the contract
Laborers Local 242 represented Fabrizio and Faria at the pro-
ject. The master agreement provided for an exclusive hiring
hall, which required the employers to obtain employees through
the constituent union offices. The validity and applicability of
the contract are not at issue.
Tom Gerlach is a Turner vice president. On March 13, Ger-
lach had a telephone conference call with Charoni and Sellers
and advised them that he had received an anonymous report
that Fabrizio and Faria had been smoking “pot” (marijuana) in
a car near the Project. Gerlach expressed concern regarding
potential liability by Turner if the report was not investigated
and something occurred on the jobsite involving either of the
employees. It was decided that Charoni and Sellers would visit
the project the following day. Charoni and Sellers testified that
Fabrizio and Faria would have been subject to discipline for
smoking marijuana on the job.
B. March 14
On the morning of March 14, Charoni and Sellers met with
Rucker at the project. Rucker was advised of the situation and
Rucker then found Fabrizio and Faria and had them come to the
Turner office at the project.
When Fabrizio and Faria arrived at the office there was a
brief exchange between the five men. Rucker recalled that a
brief discussion of the drug issue began in the office and that a
decision was made to continue the discussion outside the office.
The other witness did not recall the issue being broached with
the employees in the office. In any case, Sellers and Fabrizio
then walked to a location in the building where they had a con-
versation regarding Fabrizio taking a drug test. At the same
time Charoni and Faria went to a different location in the build-
ing where they had a separate conversation regarding Faria
taking a drug test.
1. Faria’s account
Faria testified that after going with Charoni to a location
away from the others, Charoni told him that the Employer had
received an anonymous telephone report that Fabrizio and Faria
were smoking marijuana in Fabrizio’s car in front of the jobsite.
Faria related that Charoni said that if he wanted to prove him-

5 The transcript is corrected to delete the comma between the words
“touchup” and “paint” in L. 6, p. 259.
self innocent, he needed to go with Charoni at that time and
take a urine test for drugs. According to Faria he told Charoni
that it was a lie and that he did not want to take any test until he
knew who had made the report and that he wanted a union
business agent present. Faria testified that Charoni told him that
he was not obligated to bring Faria his business agent and that
Faria’s only choice was to take the test and prove himself inno-
cent. Faria stated that Rucker then came up and a few moments
later Sellers joined them and asked Faria whether he was going
to take the drug test. Faria testified that he told Sellers that he
was not going to take the drug test until his accusers were iden-
tified and he had a chance to talk to his business agent. Faria
said that he then walked away with Rucker, who encouraged
him to take the test. Faria testified that he then left the site
without further discussions with management. He testified that
it was his belief that he was discharged since he had refused to
take the drug test. Faria testified that he would have passed the
drug test.
2. Fabrizio’s account
Fabrizio testified that after going with Sellers to a location
outside the office Sellers stated that the Employer had received
phone calls reporting that Fabrizio and Faria had been smoking
pot on the job. According to Fabrizio, he denied the accusation,
but Sellers replied that he wanted Fabrizio to go with him to
take a drug test. Fabrizio testified that at one point after Sellers
kept insisting that Fabrizio take a drug test, the following ex-
change took place

You know, Shannon, this is bullshit. I never did that. I never
did anything like that.” And he said, . . . “Just come with me
and take the test and prove yourself.” And I said, “I’m not
going to take any test. I want to face my accuser.” Then he
said something, he said something about Tom Gerlach said
that I needed to do this. I needed to come down here and get
you to do that. And I go, “You tell Tom Gerlach that I didn’t
think it was any of his business of what I do. If I dance show
tunes in my living room, it’s none of his business.” And he
said that Tom Gerlach thinks that’s his business. And then we
started arguing. I started getting silly because I just didn’t trust
Shannon’s credibility at that point. He said—He did say at
one point, “Okay, I’m your accuser.” And then I thought,
well, this is pretty ridiculous. And I told him I’m not, you
know—I said when—I know what I told him about Tom Ger-
lach. It was that, “You tell Tom Gerlach that what I do when I
go home is none of his business. The next time you come
down here to harass me, bring my Business Agent.

Fabrizio testified that Sellers said that he was not required to
do either one and that he told Sellers that under those condi-
tions he was not going to take a drug test. Fabrizio related that
believing that he had been terminated, since he had refused to
take the drug test, he picked up his tools and personal belong-
ing and left the site. Just before leaving he said he had a final
conversation with Rucker who asked if he was going to take the
drug test. Fabrizio testified that he had no reason to believe that
he would not have passed the drug test.
TURNER CONSTRUCTION CO. 453
3. Charoni’s account
Charoni testified that he began his discussion with Faria by
describing the anonymous phone call and why he was there.
Charoni said that he then asked Faria if he smoked pot and
Faria said that he did not. When Faria said that he did not
smoke pot, Charoni testified, “And I said well great, then would
you have a problem taking a drug test so we can just put this all
behind us and get on with the work of doing the job and he said
no I wouldn’t have a problem doing that.” Charoni said that
they discussed the issue some more and Faria began to get up-
set, and that his upset increased when Rucker walked up.
Charoni did not recall Rucker having anything to say. Charoni
recalled Sellers then walking up, at which time Charoni asked
Faria to step outside while he talked to Sellers. According to
Charoni, he learned that Fabrizio had left and they discussed
what they should do. Charoni testified that he and Sellers
walked toward the place where Sellers had talked with Fabrizio
and found that Faria had also left.
Charoni specifically denied that he told either Fabrizio or
Faria that they had to take a drug test to stay employed and
denied that Faria ever indicated that he wanted a union repre-
sentative.
4. Sellers’ account
Sellers described his conversation with Fabrizio as follows

I explained why I was there, I explained about the phone call
from Mr. Gerlach and an anonymous caller, I stated that I was
on Nick’s side, I understood that it was an anonymous call.

Nick was upset immediately, he wanted to know who it was
that had called. I told him again that I didn’t know who it was
that the person did not want to identify himself to Mr. Ger-
lach. That my concern was not really who had called but to
find out what the issue was about, to get his comments.

Nick said it was BS, he was very upset. He stood up, he was
sitting, resting on a packing crate if I recall there, he stood up,
he had a cell phone and some keys attached to his belt or
something and he took those off and put them down on the
crate and said something like I don’t have to put up with this
bull and what I do at home on my own time is my own busi-
ness.

And I remember trying to get him to calm down and he said
something like I am out of here and was walking away. I
asked him to come back and said lets talk this through, lets re-
solve the issue. I believe I had something like you know, the
easiest way to put this to rest, the quickest way, would you go
down and take a test and he said I don’t have to, I don’t want
to.

And then it was either when he was walking out the door he
made the statement to me well I couldn’t pass a piss test any-
way and that was basically the end of our conversation. The
whole thing took maybe three or four, five minutes at the
maximum.

Sellers specifically denied that he told either Fabrizio or
Faria that they had to take a drug test to stay employed and
denied that Fabrizio ever indicated that he wanted a union rep-
resentative. He testified that after Fabrizio walked away, he
went to where Charoni and Faria had gone to talk. Sellers re-
lated that when he arrived at that location, Rucker and Faria left
the area while Charoni and Sellers talked. Rucker thereafter
returned and told them that Faria had left.
5. Rucker’s account
Rucker testified that he initially stayed in the office and then
left the office and walked to where Fabrizio and Sellers were
talking and after a few minutes walked to where Faria and
Charoni were talking. Rucker related that Sellers was urging
Fabrizio to take the drug test to put the matter to rest and Fabri-
zio was contending that he and Faria were being unjustly ac-
cused and that they had a right to know who their accusers
were. Rucker related that in the portion of the Faria-Charoni
discussion he recalled Faria was upset about the accusations
and believed that he was being set up and that Charoni was
asking him to take the test.
Rucker testified that while he was present during the separate
discussions Sellers and Charoni had with Fabrizio and Faria, he
never heard either Sellers or Charoni indicate to either of the
employees that they had to take the drug tests to retain their
employment, he further testified that neither Fabrizio nor Faria
ever asked to have a union representative present or ask if they
could call their union representative.
C. The Grievances
Keith Kilbourn was the elected business manager for Labor-
ers Local 242. As business manager Kilbourn oversaw the busi-
ness of the local. He handled grievances that were filed by
Fabrizio and Faria relating to the March 14 events. Kilbourn
learned of their situation in a telephone conversation with busi-
ness agent Terry Seals, who had been called by Fabrizio. Kil-
bourn met with Fabrizio and Faria. His credible testimony re-
garding what they told him was as follows

Q. All right. What do you recall him telling you?
A. Basically, that they were—The Employer came to
them, and I believe it was one other superintendent or
whatever. They had split them off to separate rooms. They
were asked —They said that they had received an anony-
mous tip from a sub or somebody that they were doing
drugs on the job, doing marijuana, I believe, is what they
said they were using or whatever, and that these guys had
smelled it on other jobs, and it wasn’t quite clear if they
had smelled it on this job or whatever, but anyway, Shan-
non or Turner Construction took the position that they felt
that they needed to go drug test these guys.
Q. Did you counsel or indicate to these guys, these
gentleman, sorry, about walking off the job?
A. Oh, the first day I met with them, they kind of ex-
plained their situation and I asked them what was, you
know, did Turner say that you were fired, and the answer
was no, that apparently there was a disagreement, and
when I say disagreement, apparently words were being ex-
changed that were heated to a certain extent, and I believe
it was Nick that said that he handed Shannon his keys and
said, “I’m out of here.” And what I told him was, “Hey,
look, don’t ever walk off the job. You make sure that the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 454
employer terminates you. You make sure he says you’re
fired or you can’t work here or something of that nature.”
I also told them that, you know, if there is a problem like
that, make sure you get a hold of us, and we will come on
down and try to take care of it.
. . . .
Q. Now during this meeting you have been telling us
about, did Mr. Fabrizio or did Mr. Faria ever tell you that
they asked Turner to have a representative from their Un-
ion present on the 14th and that request was denied?
A. Not to me.

The meeting lasted at least an hour. Kilbourn gave Fabrizio
and Faria grievance forms. The employees took the forms with
them. On March 20, each of the employees returned completed
grievance forms to Kilbourn, together with a narrative account
of what happened on March 14.
The grievance form is on a single piece of 8-1/2 x 11 paper
and approximately one-third of the form consists of 15 lines
provided for a description of the nature of the grievance. On
each of the completed grievance forms a “fired” box is selected
and in the space provided to describe the nature of the griev-
ance each merely references article and section numbers of the
contract. The employees’ provided detailed accounts of their
versions of the March 14 events in separate narratives submit-
ted to Kilbourn with the grievances. Fabrizio’s narrative con-
cluded with a description of his asserted request for a union
representative. That portion read as follows

After vehemently denying the allegations, I asked for my un-
ion business representative and told him I wanted to confront
my accuser. Mr. Sellers would not oblige, saying he was not
obligated to do anything. Shannon Sellers gave the choices of
taking an illegal drug test or having to leave the job. I found it
necessary to end the hostility of the workplace and left the job
immediately.

The portion of Faria’s narrative concluded with a description
of his asserted request for a union representative. That portion
read as follows

After vehemently denying the allegations, I asked for my un-
ion business representative and told him I wanted to confront
my accuser. Mr. Charoni would not oblige, saying he was not
obligated to do anything. Tim Charoni gave the choices of
taking an illegal drug test or having to leave the job. I found it
necessary to end the hostility of the workplace and left the job
immediately.

Following unsuccessful efforts by the Union and Employer
to resolve the grievances at step one, they were heard by a
board of conciliation on April 17. Determination by a board of
conciliation is the final step in the contractual dispute resolution
process and is final and binding on the parties. The board of
conciliation consisted of four persons, two designated by the
Union and two designated by the Employer. (The contract pro-
vides for appointment of a fifth member if necessary to reach a
majority decision.) Kevin Cimmery and Chuck O’Halloran
were designated by the Union to serve on the panel. At the time
the grievances were heard Cimmery was business manager of
Laborers Local 242 and O’Halloran was field representative
and dispatcher for Laborers Local 440. Two management rep-
resentatives employed by other employers were designated by
Turner. There is no evidence that Faria or Fabrizio at any time
objected to the persons designated to sit on the panel.
Those present for the board of adjustment hearing on April
17, included Sellers, Fabrizio, Faria, Kilbourn, and Noel
McMurtray, the Union’s attorney. The hearing lasted about an
hour and a half. Kilbourn and McMurtray presented the case for
the employees.
Kilbourn credibly testified that the grievances and the narra-
tives of both Fabrizio and Faria were submitted to the board of
conciliation as a part of the Union’s presentation at the April 17
hearing.6
Faria and Fabrizio could not recall one way or the other
whether the question of union representation was discussed at
the hearing. The two board of adjustment members desig-
nated by the Employer were not called to testify. McMurtray
and Kilbourn testified that McMurtray briefly addressed the
issue. Kilbourn thought McMurtray might have raised the issue
early in the hearing. McMurtray testified that during the hear-
ing the participants were arguing over the drug policy, liability,
jobsite safety, procedural issues, probable cause, and the pro-
ceedings were not moving along. He testified that at that point
he observed that an additional procedural problem that had to
be considered was that the employees had a right to have a
union representative and they were denied that right, but he did
not otherwise address union representation at the hearing. The
contract has a number of detailed requirements relating to drug
testing procedures, including a requirement that when an em-
ployee is transported to an exam site for drug testing based
upon suspicion, the Employer is required to notify the Union. I
found McMurtray’s testimony on this question of when and
how he raised the union representation issue during the hearing
to have been the most reliable and credibly offered version.
McMurtray testified that he did not address the narrative
statements of Faria and Fabrizio in his presentation at the hear-
ing because he did not believe the statements to be true.
McMurtray credibly testified that he had interviewed Faria and
Fabrizio on March 17, and they never claimed that they had
requested a union representative, even after he explained their
Weingarten rights.7 As previously noted, Faria and Fabrizio had

6 Faria initially testified that to the best of his memory his grievance
and narrative were both presented to the board of adjustment. Later he
claimed that he had no “specific memory” of whether the narrative was
given to the Panel. Fabrizio testified that he “did not remember” any
facts being presented with respect to his request for a union representa-
tive. The board of adjustment hearing was held one week after Faria
and Fabrizio each had filed unfair labor practice charges that alleged a
denial of union representation. The testimony of Faria and Fabrizio on
this question of fact was less convincingly offered and is less probable
that the credited testimony of Kilbourn. I credit Kilbourn on this issue
despite McMurtray’s uncertainty whether Faria’s narrative was submit-
ted to the panel. I was not favorably impressed with the demeanor of
either Faria or Fabrizio and to the extent their testimony conflicts with
the testimony of Kilbourn or McMurtray regarding the proceedings of
the Board of Adjustment, I am convinced that Kilbourn and McMurtray
were more accurate and truthful.
7 NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).
TURNER CONSTRUCTION CO. 455
also not described a demand for a union representative when
they met earlier with Kilbourn.
The Board of Conciliation issued a written award based upon
a unanimous decision on March 23. The award reads as fol-
lows:
Nicholas Fabrizio & Robert Faria Grievance
17 April 2001

• Lump Sum Payment to Nick Fabrizio & Robert
Faria of $1700 each (No HRs – no benefits)
• Turner does not have to reinstate these laborers but
they are eligible for rehire/dispatch to future
Turner projects.
• Turner Construction is advised to review their drug
testing procedures.
• This agreement will be kept confidential by all in-
volved parties.
• There is no guilt or wrongdoing assigned to any of
the parties.

All four members of the panel signed the decision on April
23. Faria and Fabrizio do not deny having been informed of the
decision. There has been no contention that the Employer has
not complied with the board of adjustment award. Laborer
work on the Project had been completed on April 6, prior to the
Board of Adjustment hearing, and the laborers hired to replace
Fabrizio and Faria had been laid off. The record does not show
that the Employer had a practice of moving employees in the
positions held by Faria and Fabrizio from job to job.
The Employer issued checks for the payments specified in
the decision. Fabrizio’s check was received as an exhibit. It is
dated May 3, and is accompanied by a pay statement indicating
that it was for “special pay” with a gross pay figure of $1700,
with deductions limited to customary tax items.8 The net
amount of the check was $1244.67. Fabrizio testified that he
received and cashed the check.
Faria testified that he received and cashed a $1700 check
from the Employer. He testified that he was given the check by
a business agent at the union hall after receiving a call, but he
claimed to not remember who gave it to him and that he did not
know what the check was for. Faria’s check is not in evidence.
It appears likely that his check had tax deductions like those
made from Fabrizio’s check.
D. The Deferral Issue
The gravamen of the complaint is that the Faria and Fabrizio
were discharged for refusing to cooperate with the employer in
an investigatory interview without union representation. An
employee’s insistence upon union representation at an em-
ployer’s investigatory interview that the employee reasonably
believes might result in disciplinary action is protected con-
certed activity. NLRB v. J. Weingarten, Inc., 420 U.S. 251
(1975). The General Counsel contends that the drug tests pro-
posed by the Employer fall within the purview of Weingarten.
While there is no reported case where the Board has applied
Weingarten to drug testing, the contention is fairly arguable.

8 Other categories listed on the pay stub for which deductions were
not made appear to be for fringe benefits and voluntary allotments.
See Systems 99, 289 NLRB 723, 724–727 (1988); cf. Mashkin
Freight Lines, 272 NLRB 427 fn. 4 (1984).
Whether deferral is appropriate is a threshold question,
which must be decided in the negative before the merits of the
unfair labor practice allegations are considered. L. E. Myers
Co., 270 NLRB 1010 (1984). I have not resolved the credibility
issues necessary to decide the case on the merits, before ad-
dressing the deferral issue. See Blue Cross Blue Shield, 286
NLRB 564, 582 (1987). Moreover, I have not determined
whether the evidence, viewed in a light most favorable to the
General Counsel, would establish a violation on the merits.
The Board will defer to the decision of arbitration proceed-
ing when four criteria are satisfied. They are: (1) the arbitration
proceedings were fair and regular; (2) the arbitrator was pre-
sented generally with the facts relevant to resolving the unfair
labor practice; (3) the decision is not repugnant to the Act; and
(4) all parties agreed to be bound. Spielberg Mfg. Co., 112
NLRB 1980 (1955); Raytheon Co., 140 NLRB 883 (1963).
The Board further refined the criteria for deferral and the
burden of proof in Olin Corp., 268 NLRB 573, 574 (1984),
stating

Accordingly, we adopt the following standard for deferral to
arbitration awards. We would find that an arbitrator has ade-
quately considered the unfair labor practice if (1) the contrac-
tual issue is factually parallel to the unfair labor practice issue,
and (2) the arbitrator was presented generally with the facts
relevant to resolving the unfair labor practice. In this respect,
differences, if any, between the contractual and statutory stan-
dards of review should be weighed by the Board as part of its
determination under the Spielberg standards of whether an
award is “clearly repugnant” to the Act. And, with regard to
the inquiry into the “clearly repugnant” standard, we would
not require an arbitrator’s award to be totally consistent with
Board precedent. Unless the award is “palpably wrong,” i.e.,
unless the arbitrator’s decision is not susceptible to an inter-
pretation consistent with the Act, we will defer.

Finally, we would require that the party seeking to have the
Board reject deferral and consider the merits of a given case
show that the above standards for deferral have not been met.
Thus, the party seeking to have the Board ignore the determi-
nation of an arbitrator has the burden of affirmatively demon-
strating the defects in the arbitral process or award. [footnotes
omitted]

The General Counsel contends that the record evidence es-
tablishes that deferral is not appropriate on several grounds.
The General Counsel contends the proceedings were not fair
and regular, arguing on brief at 18:

In at least one case, the Board has also held that it would not
defer to awards of joint committees where the members of
such committees have interests which were directly in conflict
with those of the grieving party. Brown Co., 243 NLRB 769,
770 (1979). Here, two of the committee members were man-
agement representatives with interests arguably at odds with
the Charging Parties, and the contractual decision may be set
aside on that basis as well.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 456

The General Counsel does not further explicate the claim
that the management representatives had “interests arguably at
odds” with Faria and Fabrizio. The General Counsel’s position
is inconsistent with the generally accepted proposition the
Board defers to such labor-management panels, absent evi-
dence that the members of the panel may be arrayed in common
interest against the individual grievant. See Herman Bros., Inc.,
252 NLRB 848 (1980). Moreover, the General Counsel does
not contend that the panel members designated by the Union,
who joined in the unanimous decision, had interests in conflict
with those of the employees or that the Union or the panel was
hostile to the employees. The award itself, which was in sig-
nificant measure favorable to the employees and critical of the
Employer, is inconsistent with a conclusion that the panel deci-
sion was based upon unfair considerations. The General Coun-
sel does not contend and the evidence does not show that the
proceedings were procedurally deficient. I conclude that the
General Counsel has not proven by a preponderance of the
evidence that the proceedings regarding the grievances of Faria
and Fabrizio were not fair and regular.
The General Counsel also asserts on brief at 18. “[T]he statu-
tory issue concerning Weingarten rights is not directly parallel
to the panel’s consideration on the question of whether the
parties followed the letter of their contract in requesting em-
ployees to drug test.” Assuming that this is a contention that the
contract issue is not factually parallel to the unfair labor prac-
tice issue, the record does not support it. To the contrary, the
evidence is that the contract issue was whether the Employer
violated the contract by the actions of Charoni, Rucker, and
Sellers on the morning of March 14, while the unfair labor
practice issues are whether their actions that morning violated
the employees’ Weingarten rights. It is noted that the contract
gives union agents a right of access to the jobsite. I conclude
that the General Counsel has not proven by a preponderance of
the evidence that the contract issues and unfair labor practice
issues were not parallel. To the contrary, the record shows that
the statutory and contract issues were factually parallel. See
Anderson Sand & Gravel, 277 NLRB 1204 (1985)
The General Counsel argues that the Panel was not presented
generally with the facts relevant to resolving the unfair labor
practice. As discussed earlier, the credible evidence shows that
the detailed narrative accounts of the May 14 events prepared
by Faria and Fabrizio were submitted to the board of adjust-
ment. Moreover, attorney McMurtray called the panel’s atten-
tion to the fact there was an issue of the employee’s right to
union representation. The lack of recollection by the two panel
members called as witnesses is insufficient to warrant a differ-
ent conclusion. I conclude that the General Counsel has not
proven by a preponderance of the evidence that the Panel was
not presented generally with the facts relevant to resolving the
unfair labor practice. Rather, the evidence shows that the facts
were presented to the Panel.
The General Counsel contends that the parties had not agreed
to be bound. On brief at 18 the General Counsel argues “[T]he
‘parties’ who agreed to be bound to the contract which sets
forth the Panel process were the Employer and the Union—not
the Charging Parties to this matter.” No authority is cited in
support of this argument. The requirement that there be agree-
ment of the parties refers not to individual discriminatees, but
to the union and employer. See Great Scott Supermarkets, 206
NLRB 447, 452–453 (1973).9 The evidence establishes that the
parties agreed to be bound.
Neither at the hearing nor on brief has the General Counsel
contended that the award of the board of adjustment is clearly
repugnant. While the award of the panel is not totally consistent
with the award that the Board would order if the complaint
allegations were found to have merit, the evidence does not
show that the Panel’s award is not susceptible to an interpreta-
tion consistent with the Act. Indeed, deferral to the award ap-
pears to be consistent with protecting the rights of employees,
while advancing collective bargaining. See International Great
Lakes Shipping, 215 NLRB 701 (1974).
On these findings of fact and conclusions of law and on the
entire record I issue the following recommended10
ORDER
The complaint is dismissed.

9 Moreover, the employees filed the grievances and they did not ob-
ject to the panel hearing the grievances, even though they had filed
unfair labor practice charges prior to the panel hearing. The question of
whether the panel or the Union was hostile to Faria or Fabrizio was
addressed as a part of the issue of whether the proceedings were fair
and regular.
10 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.