Industrial Supply Co., Inc.

INDUSTRIAL SUPPLY CO. Industrial Supply Co., Inc. and Carol Stickney. Case 18-CA-10072 June 30, 1988 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT On October 21, 1987, Administrative Law Judge Frederick C. Herzog issued the attached decision. The Respondent and the General Counsel filed ex- ceptions and supporting briefs. The National Labor Relations Board has delegat- ed 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, I and conclusions2 and to adopt the recommended Order.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Industrial Supply Co., Inc., Plymouth and St. Paul, Minneso- ta, its officers, agents, successors, and assigns, shall take the action set forth in the Order. ' The Respondent has excepted to some of the judge's credibility find- mgs. 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 fmd no basis for reversing the findings 2 We find it unnecessary to find an additional , repetitive violation of Sec 8(axl) based on the statements made by the Respondent 's president Koch at the state unemployment compensation hearing . Such a finding would be cumulative and would not affect the Order s For the reasons set forth by the judge, employment positions at the Respondent's Plymouth, Minnesota facility are not substantially equiva- lent to discruninatee Carol Stickney 's former office clerical position at the Respondent's St Paul, Minnesota facility. Accord: Professional Porter Co., 275 NLRB 12, 18 (1985) Furthermore, the Respondent has failed to prove in this proceeding that it would have eliminated Stickney's former position at any time in the absence of her statutorily protected grievance activity. Consequently, to the extent necessary to effectuate Stickney's re- medial reinstatement right, the Respondent will be required to recreate her former position at its St. Paul facility. See Larry Barnes Chevrolet Co , 174 NLRB 818, 822 (1969) We deny the request that the remedial order include a visitatonal clause See Cherokee Marine Terminal, 287 NLRB 1080 (1988) Robert E. Omberg, Esq. and James L. Fox, Esq., for the General Counsel. Douglas P. Seaton, Esq. (Popham, Haik, Schnobrich, Kauf- man & Doty, Ltd.), of Minneapolis, Minnesota, for the Respondent. DECISION 639 STATEMENT OF THE CASE FREDERICK C. HERZOG, Administrative Law Judge. This case was heard before me in Minneapolis, Minneso- ta, on 13 and 14 August 1987 and is based on a charge filed by Carol G. Stickney (Stickney), an individual, about 14 May 1987 alleging generally that Industrial Supply Company, Inc. (Respondent) committed certain violations of Section 8(a)(3) and (1)' of the National Labor Relations Act (the Act). About 24 June 1987 the Regional Director for Region 18 of the National Labor Relations Board (the Board) issued a complaint and notice of hearing alleging violations of Section 8(a)(3) and (1) of the Act. Respondent thereafter filed a timely answer to the allegations contained within the complaint. All parties appeared at the hearing through counsel, and were given full opportunity to participate, to intro- duce relevant evidence, to examine and cross- examine witnesses, to argue orally, and to file briefs. Based on the record, my consideration of the briefs filed by counsel for the General Counsel and counsel for Respondent, and my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT 1. BUSINESS OF RESPONDENT The parties agree, and I find, that Respondent is a Minnesota corporation with its principal place of busi- ness in Plymouth, Minnesota, and a branch office in St. Paul, Minnesota; that Respondent has been engaged in the distribution of bearings and power transmission com- ponents; that during the past calendar year Respondent in the course and conduct of its business operations pur- chased and received at its Plymouth facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of Minnesota; that during the past calendar year Respondent in the course and con- duct of its business operations sold and shipped from its Plymouth facility products, goods, and materials valued in excess of $50,000 directly to customers outside the State of Minnesota; and that Respondent is now, and has been at all times material, an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION The parties agree, and I find, that Warehousemen, Drivers and Helpers Union Local No. 359, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (the Union) is now, and has been at all times material, a labor organization within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Contentions of the Parties Counsel for the General Counsel contends that Re- spondent retaliated against Stickney's refusal to with- 289 NLRB No. 84 640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD draw a grievance filed by her by imposing such new and onerous working conditions on her as to cause her con- structive discharge. Respondent contends that whatever changes were made in Stickney's working conditions were not motivated by discriminatory or retaliatory intent, and were instead the valid result of changed cir- cumstances in its business. As a subsidiary issue, counsel for the General Counsel also contends that Respondent twice sought to coerce Stickney, first by threatening to terminate Stickney's po- sition unless she dropped or withdrew the grievance re- ferred to above, and later by stating to her that the reason why her position had been eliminated was be- cause of her refusal to drop or withdraw the grievance. Respondent's answer denies that any such coercion oc- curred, but none of Respondent's witnesses testified con- cerning these matters and they are not mentioned in the brief of Respondent's counsel. B. The Facts Respondent's business of distributing bearings and power transmission components is headquartered at Plymouth, Minnesota, where it employs approximately 26 employees. It maintains branch offices in St. Paul, Minnesota, and Sioux Falls, South Dakota. Approximate- ly seven employees work at the St. Paul facility. Respondent and the Union are currently parties to a 3- year collective-bargaining agreement, due to expire in November 1987. The agreement, which covers a unit of clerical employees at the Plymouth and St. Paul facili- ties, contains a provision for grievance and arbitration. Stickney, at the relevant time of January 1987, was the only employee at Respondent's St. Paul facility covered by the agreement. Stickney worked for Respondent from 1975 until Janu- ary 1987. Throughout that time she worked in the St. Paul facility performing general office clerical work, in- cluding filing, typing, filling in for the salesman (city desk man), and working on computers. Her immediate supervisor was Keith Stutz, the office manager, and, in turn, was also responsible to Bob Engler, the St. Paul branch manager, as well as Paul Koch, Respondent's president. Respondent admits that throughout her em- ployment she was an excellent employee and has never given cause for discipline. On the other hand, it is admit- ted by counsel for the General Counsel that Respondent has no history of unfair labor practices and has never otherwise evidenced union animus. Throughout her employment until 1983 Stickney worked on a full-time, 40-hour-per-week basis. Thereaf- ter, until the time of the incident alleged in the com- plaint, she worked on a part-time, 24-hour-per-week basis. This change came about when Respondent pro- posed to her that, in order to avoid the possibility that Respondent might be forced to lay off another employee who occupied the position of "city desk man," she no longer works on Monday or Friday, and instead works 8-hour days, Tuesday through Thursday. Stickney agreed. Stickney credibly testified that at the time Koch assured her that she would lose no benefits, including her vacation time, if she accepted this change. She conceded, however, that she had no recollection that Koch made any reference, one way or another, to the question of whether her vacation entitlement would be prorated to account for her new part-time status. Koch had no recol- lection of the conversation at all. The collective-bargaining agreement between the Union and Respondent provides that employees are to receive 3 weeks' vacation after having served with Re- spondent for a period of 10 years. In apparent reliance thereon Stickney took, and was paid for without any questions being raised by Respondent, 10 days of vaca- tion in 1984, and (having completed her 10th year of service) 15 days in 1985 and 1986. Counsel for the General Counsel concedes that some- time during 1986 Koch talked to Stickney about a possi- ble transfer from St. Paul to Plymouth. Stickney's recol- lection was that the conversation took place in April or May. Koch testified that it occurred in August or Sep- tember; Respondent's brief simply notes that it occurred sometime during the summer of 1986. Thus, whether it be in the spring or the summer, it appears that all parties agree that the conversation took place roughly 4 to 6 months preceding the events of January 1987. According to Stickney, Koch initiated the conversa- tion by inquiring as to Stickney's thoughts concerning the possibility of reverting to full-time work, i.e., work- ing a 40-hour week in 5 days. Stickney was initially re- ceptive to the idea, but quickly and adamently expressed her opposition on being told by Koch that the new full- time position would be located in the Plymouth facility. Stickney credibly testified that she initially told Koch that she had no way of getting to Plymouth and ex- plained to him that she did not drive a car or have a car, but was transported to and from work by her husband whose own route to and from work took him within a few blocks of the St. Paul facility. Stickney further testi- fied that she told Koch that she would make inquiries into Minnesota, Ride-Share, which is evidently a volun- teer or public organization that attempts to arrange for carpools to be formed. Stickney also said that she told Koch that she would check into the possibility of public transportation, such as the bus system. She promised to get back to him if suitable arrangements could be made. Stickney was adamant in her testimony to the effect that she expressly told Koch that there was no way that she could accept such a transfer absent resolution of her transportation difficulties. Koch did not deny Stickney's testimony on any of these points. However, he did go on to testify that he ex- plained, contrary to Stickney's recollection, that her job in St. Paul was being phased out and was to be abolished shortly. According to Koch, he did not insist that she give him an immediate answer, and he did not tell her of any specific date when her job was to be ended. He testi- fied that he told her that the elimination of her job was "imminent." Branch Manager Engler admitted that he had not been briefed by Koch concerning the possibility that Stick- ney's job in his branch would be eliminated. Thus, on Stickney's remarking to him following her conversation with Koch that "it looks like they are going to terminate my job," he felt justified in assuring her, as he did, that INDUSTRIAL SUPPLY CO there was no reason to be very concerned about it. Stick- ney testified that she made no such statement to Engler, or even to Stutz. As she recalled it, she merely respond- ed to questions from both Engler and Stutz when they expressed curiosity to her about the subject matter of her meeting with Koch; she went on to say that she wished they could explain it to her and than she asked Engler if he knew what Koch meant. It is undisputed that in 1985 Respondent determined to modify its operation by installing more computer tech- nology, pointing toward the goal of improving efficiency and coordination . The computer terminals installed were operated by service representatives, who performed the functions formerly performed by Stickney. Similarly un- disputed is the fact that installation of the computers and their usage resulted in a lessened need by the Respondent for clerical assistance in billing and inventory control. Also undisputed is the fact that Respondent began to experience financial difficulties that threatened to de- crease its profitability during the fiscal year ending 31 March 1986. An internal review by Respondent's offi- cials was undertaken to identify areas where costs could be cut. According to evidence supplied by Respondent, its Sioux Falls facility was identified as its greatest finan- cial drain, but the effects of a general lack of growth were being felt throughout all the facilities of Respond- ent. Respondent's internal review ultimately led to the recommendation from its officials that seven positions be eliminated by Respondent, two of them being in the St. Paul facility where Stickney worked. These officials were in agreement that Stickney's position was one of those that could have been eliminated; the record is silent concerning just how many of the positions in the St. Paul facility beside Stickney's were also considered subject to possible elimination, if any. Similarly, the record is silent as to details of Respondent's determina- tion concerning these recommendations, showing, for ex- ample, just when such recommendations were made, the precise recommendations made, which jobs were consid- ered and affected by such recommendations, the timeli- ness or even deadlines when such recommendations were to be effected, and the economic benefits to be realized or the financial difficulties to be avoided in the event such recommendations were carried out. In November 1986 Respondent learned of the impend- ing loss of one of its major contracts, a contract previ- ously handled from the St. Paul facility. However, de- spite the eventual loss of the contract, Respondent has continued to do business with the company that had pre- viously awarded it the contract and, in approximately the same amount, as Koch explained, the "new" compa- ny had not yet "gotten on stream." Moreover, Stickney testified without rebuttal that Engler and Stutz both told her coincident with the time Respondent learned that it was not going to receive the contract referred to above that the St. Paul facility would be expected in the future to do its own invoicing and billing, thereby increasing the workload for her. She testified credibly that they told her that this would possibly necessitate her return to full-time status. Indeed, so Stickney testified, again with- out rebuttal, Engler told her that he would like to see 641 her begin doing purchasing work in order to take some of the workload off the city desk man. Thus, notwithstanding Koch' s statements to her, Stick- ney continued to work in her usual part-time job, with no changes being made for several months following her conversation wih Koch until 15 January 1987. On that date, however, she received a paycheck that she noted was extraordinarily small compared with its usual amount. A note from Respondent's controller, Rol, accompanied the paycheck, explaining that she had used, and been paid for, 15 days vacation during 1986 and that, according to Koch, she should have been paid for only 9 days due to the fact that, as a part-time employee, she worked only 3 days per week and, therefore, should have received only 60 percent of the contractually pro- vided 15 days of vacation per year. Thus, pay for 6 days was deducted from her paycheck in order to reimburse Respondent for days previously paid her in error. Stick- ney's inquiries addressed to Stutz and Rol led her to speak to Koch. According to Koch, he told Stickney that she had been getting benefits she had not been entitled to, but that Stickney responded by telling him that it was her understanding that she was entitled to full-time benefits pursuant to the discussion and understandings she had had at the time she was converted to the status of part- time employee. It is undisputed that neither Koch nor Stickney changed their positions with respect to this dis- pute during that conversation. The next day, 16 January 1987, Stickney filed a griev- ance seeking to secure pay for the 6 days. According to Rol, when told that Stickney's claim accorded with pro- cedures followed during the previous year, 1985, Koch responded that, regardless of what had happened in the past, he had no intention of paying full-time vacation benefits for part-time work. On 22 January 1987, Koch telephoned Stickney. He apologized for the manner in which the deduction had been taken from her paycheck without warning or dis- cussion. Stickney testified that Koch told her that she should drop her grievance, but she refused, unless she was paid for the time that had been deducted. Stickney recalled Koch telling her, and Koch never denied that he told her, that he would eliminate her job in St. Paul if she did not drop her grievance, and that only by drop- ping the grievance would she be allowed to continue to work, absent her acceptance of the transfer to the Plym- outh facility. Stickney testified that she reminded Koch that she had no means of transportation to Plymouth, a fact that Koch admitted she stated to him. Nonetheless, Stickney testified and Koch did not deny that Koch then told her that in light of her refusal to drop her grievance that she no longer had a job in St. Paul and that, if she wished to continue to work, she would have to do so by coming to the Plymouth facility. Koch admittedly told Stickney that the grievance was not proper, that it would be costly to Respondent, that he thought that the grievance was unfounded, and that despite his claim that Stickney's receipt of full-time vacation benefits had been unfair, no one had ever complained to him about it. Koch admitted that he made no statement to Stickney 642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD during that conversation concerning the elimination of her position in St. Paul, and the resultant transfer to Plymouth, until after Stickney informed him that she re- fused to withdraw the grievance." On 19 March 1987 Koch testified at an unemployment compensation hearing in which Stickney was the claim- ant. He was asked about his conversation with Stickney of 22 January, and the inquiry was put to him about whether he had then told Stickney that he did not intend to pay to arbitrate a grievance such as hers. He respond- ed that he had made that statement. He was then asked whether he told her that if she did not drop the griev- ance he was going to have to eliminate her position. His response was, "Uh, I guess I did, yeah." Then, when asked if it was not true that on that very same day, 6 days after Stickney had filed her grievance, Koch elimi- nated Stickney's position, Koch responded, "Uh huh, as I say, it brought it to a head. There's no secret about it." Questioned along similar lines during the course of this trial, Koch admitted that Stickney's filing of the griev- ance moved the decision to terminate her St. Paul posi- tion "to a head," and that it was "the pre-empting factor." Koch admitted that, notwithstanding the evi- dence concerning the business justifications resulting from the internal analyses conducted by Respondent during the previous fall, and notwithstanding his own as- sertion to Koch sometime during the previous summer that her transfer in status to a full-time employee was "imminent," it was not until the conversation of 22 Janu- ary (and then only following her refusal to withdraw her grievance) that Stickney was told that a definite decision had been made to terminate her position, and that she would have to transfer if she were to remain in the employ of Respondent. Following her telephone conversation of 22 January with Koch, Stickney advised Engler and Stutz that she had lost her job in St. Paul. She telephoned Stutz on both Saturday and Sunday of that weekend telling him that she did not know what she was going to do. Stutz responded that he had talked to Rol and learned that there was no work for her as yet in Plymouth and that she could therefore come back to St. Paul for the follow- ing week. She did so, and performed her normal work during that week. Engler told her, in parting, that he would speak to Koch and let Stickney know what was going to happen. Engler contacted Stickney the following Monday and told her Koch stood by his previously announced deci- sion. Stickney undertook an investigation to determine whether it would be possible for her to solve her trans- portation difficulties. As she testified, it was not possible for her husband to take her in the direction and over the distance that working at the new facility would require. She also learned that public transportation would have involved some 3 hours per day to go to and return from i I purposefully foreshortened the recitation of facts concerning the merits of the grievance, inasmuch as the issue of whether Stickney's grievance did or did not have merit is not an issue to be determined by me in this case Here, it suffices to say that Respondent has not asserted that there was no arguable merit to Stickney's grievance, or that it was filed maliciously or with intent to harrass. work by bus. (Even at that, the bus would have picked her up in her suburb, driven her to downtown Minne- apolis, she would have awaited a transfer at that point, and then taken another bus out into the suburb of Plym- outh.) Stickney also investigated the possibility of ride- sharing, or of securing transportation from relatives. It is undisputed that Stickney, though the possessor of a driver's license, has driving skills that might best be de- scribed as primitive, and certainly not sufficient to under- take a lengthy commute across a major portion of a met- ropolitan area. Nor is it disputed that Respondent, through Stutz, Engler, and Koch, had been long aware of Stickney's inability to drive herself to work, and/or were informed of her inability months before her conver- sation with Koch of 22 January. Last, Koch testified that even had there been no dis- pute regarding the vacation grievance filed by Stickney, her job would have been eliminated no later than 1 March 1987. Such an opinion, however, was not voiced in either of the affidavits previously supplied by him to the General Counsel (one of which was prepared by Re- spondent's counsel). Neither was it contained within his testimony at the unemployment compensation hearing. And, as noted earlier, no records, memoranda, recom- mendations, or other financial data was brought forward by Respondent to corroborate the testimony of Koch, or any other of Respondent's witnesses, concerning the ne- cessity for and timing of any actions taken concerning Stickney's position of employment, notwithstanding the inference that I draw from their collective testimony that such records and memoranda concerning financial dis- tress, and proposed means of resolution, are generally maintained by employers. No explanation for the absence of such records was offered and no claim has been ad- vanced that such records do not exist or were unavail- able for trial. Stickney has not worked for Respondent since 29 Jan- uary 1987, the date when her position in the St. Paul fa- cility of Respondent was terminated. She has consistently declined to accept the transfer to Plymouth, on the basis that she would have to depend on public transportation and that such transportation would impose on her too greatly. C. Analysis and Conclusions Based on my observance of her demeanor I find Stick- ney credible. She testified in a forthright and candid fashion, resisting several opportunities offered her to en- large on or magnify her recital of the injustice, as she perceived it, of her Employer's position. Thus, I deem her to be a truthful person, whose testimony is reliable. My conclusion is especially valid as to instances where she was recounting events in a generalized way, as op- posed to various instances where precision or detail was sought. As a result, I have determined to generally credit her testimony over that of Koch in areas where there is conflict. I reach this conclusion not because I regard Koch as a person given to deliberate falsity. Instead, I viewed him as a person motivated by such determination, possibly rising to the level of stubbornness, that he found himself INDUSTRIAL SUPPLY CO. easily able to brush aside or ignore inconsistencies within his own position. In any event, my determination of the relative credibil- ity of witnesses in this case need not rest on the admit- tedly inexact art of weighing their testimonial demeanor. I explain below. It is an unfair labor practice for an employer to threat- en an employee with retaliation because the employee has elected to file a grievance. Such threats are deemed violative of Section 8(a)(1) of the Act because of their tendency to negate the assurances of certain rights en- joyed by employees, as set forth in Section 7 of the Act. Among any litany of such rights must be included the right of employees to file grievances in efforts to resolve disputes arising under collective-bargaining agreements. Indeed, in any hierarchical ranking, the right to grieve must surely be near the top of any list. See, for example, Stor-Rite Metal Products, 283 NLRB 856, 858 (1987); Dresser Industries, 281 NLRB 132, 135 (1986); Commer- cial Cartage Co., 273 NLRB 637, 647 (1984). See also NLRB v. City Disposal Systems, 465 U.S. 822 (1984), citing with approval Interboro Contractors, 157 NLRB 1295 (1966), enfd. 388 F.2d 495 (2d Cir. 1967). Applying the principles of these authorities, I find and conclude that Koch violated Section 8(a)(1) of the Act both on 22 January 1987 when he told Stickney that he would eliminate her position and require her to transfer to the Plymouth facility unless she dropped her griev- ance, and also by his statement made in her presence at the 19 March 1987 state unemployment compensation hearing. I reach the conclusion that Koch made these statements based on the credible testimony of Stickney, and my review of the transcript of the sworn testimony taken from Koch at the unemployment compensation hearing. I note that neither statement was contradicted or denied by Koch during the course of the trial, and that, indeed, Koch essentially repeated the statement of 19 March during the course of this trial.2 Turning to the issue of whether Respondent construc- tively discharged Stickney, I first note that it is the coun- sel for the General Counsel's burden in such cases to prove two elements: (1) the burdens imposed on the em- ployee must cause, and be intended to cause, a change in his or her working conditions so difficult or unpleasant as to force him or her to resign; and (2) it must be shown that those burdens were imposed because of the employ- ee's union activities. Reno Hilton, 282 NLRB 819, 836 fn. 2 Peculiarly, counsel for the General Counsel quibbles with my ruling at trial in which I declined to allow him to place into evidence only a portion of the transcript of the unemployment compensation hearing. In- stead, I required that the entire transcript be placed in evidence Not- withstanding the authorities cited by counsel for the General Counsel on this issue, I regard my ruling as having been well within the areas of dis- cretion afforded me in conducting a trial Far from seriously burdening the record, or resulting in counsel for the General Counsel's prejudice, I raise the hypothetical question as to how counsel for the General Coun- sel might have hoped to prove that Stickney overheard (and was thereby interfered with, restrained , or coerced by) Koch's statements during the course of his testimony at the unemployment compensation hearing, had the entire transcript, showing her appearance and presence there, not been included in the record I am unaware of any presumption that would have warranted a conclusion that Stickney had been subjected to a threatening statement in the absence of evidence to indicate that she was present and overheard it 643 39 (1987), which recently cited with approval the Board's long held rule from Crystal Princeton Refining Co., 222 NLRB 1068, 1069 (1976). The second element is positively established by merely reciting the sworn testimony of Respondent's president, Koch. It was he who directly and immediately stated, "Uh, I guess I did, yeah," and "Uh huh. As I say, it brought it to a head. There's no secret about it," in re- sponse to questions concerning whether he told Stickney that if she refused to withdraw her grievance her posi- tion would be eliminated. I cannot, and I do not, accept Respondent's conten- tions and arguments to the effect that Stickney's position was eliminated because of necessary or desired changes in Respondent's personnel needs or financial well-being. My reasons for finding such evidence unpersuasive will be discussed below, when treating of Respondent's burden of proof. I also determine that, in abolishing Stickney's position and placing her in a position of being able to retain her employment with Respondent only by means of accept- ing a transfer to another facility some miles away, coun- sel for the General Counsel has satisfied all the require- ments of the first element of a prima facie case of con- structive discharge. First of all, such a transfer would obviously constitute a burden of some sort. According to Stickney's credited testimony, she was able to reach her place of employ- ment at St. Paul with a daily travel time of approximate- ly 40 minutes (20 minutes each way), being driven by her husband. She had followed this procedure for a number of years and evidently it had worked very well, in light of Respondent's admission that she was regarded as an excellent employee (leading me to infer that she had no problems with absence or tardiness). Taking into account Stickney's credited testimony to the effect that, despite her holding a driver's license (primarily as a means of identification) her knowledge of, and skills at, operating a motor vehicle are so elemental and limited as, in my opinion, to label them as primitive, at best. Thus, it is clear that, in order for Stickney to drive herself to work, she would had to find some means of learning to drive and, having done so, would have also been compelled to purchase a motor vehicle to do that driving, because she also credibly testified that she owned no vehicle and that her husband required the family car to go to work him- self. I also consider her credited testimony to the effect that she unsuccessfully checked into various means of transportation, including Minnesota Ride-Share, or secur- ing rides from friends or relatives. These having failed, Stickney would have been required to spend approxi- mately 3 hours per day in transit by means by bus. Taking all this into account, I find and conclude that the change in her job status, imposed by Koch on 22 January, may legitimately be described as "a burden" on her employment status. I base this on both the required changes in reliability and comfort in her normal, past method of transportation, and also the net difference of approximately 2 hours and 20 minutes per day to spend in transit to and from the place of employment. 644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I expressly disavow any intent to find here that an em- ployer is obliged under the Act to provide employment only on terms found comfortable and convenient by em- ployees. My holding here is limited strictly to a situation in which I find that the employer imposed a change in working conditions precisely because the employee en- gaged in protected activities, knowing full well that the change would cause a burden on the employee, and with the express intent or hope that it would do so, and lead to the employee's resignation or serve as sufficient warn- ing to deter the employee, or other employees, from thereafter engaging in activities protected under the Act. Certainly no employer is obliged to take an employee's commuting time into consideration when making deci- sions as to how to regulate its own business. But this general rule changes when it is shown, as it is here, by means of Stickney's credited testimony, and the admis- sions made by Koch, that Respondent's supervisors, in- cluding Koch personally, had been previously informed for months, if not years, of Stickney's inability to operate a motor vehicle. Thus, taking into account Koch's admissions as to his motivation, and also taking into account his presumed general knowledge of the public transportation situation in the Twin Cities metropolitan area, I find and conclude that in abolishing her position and conditioning her fur- ther employment on accepting a transfer to the Plym- outh facility, Koch intended to cause a burdensome change in Stickney's working conditions sufficiently dif- ficult or unpleasant as to compel Stickney to resign. Compare Kroger Co., 228 NLRB 149, 150 fn. 11, 152 fn. 19 (1977); Olympic Limousine Service, 278 NLRB 932, 939 (1986), and cases cited herein. The question is not whether the employee has been faced with a choice so aggravated as to be deemed egregious, but rather wheth- er the employee was faced with any such substantial choice at all for reasons proscribed by the Act. John Dory Boat Works, 229 NLRB 844, 850-851 (1977). Under all the circumstances of this case I find and conclude that counsel for the General Counsel has estab- lished a strong prima facie case in support of the allega- tions set forth in the complaint in all particulars. D. Respondent's Arguments in Rebuttal and Mitigation In NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), the Supreme Court reaffirmed the test ennuciated by the Board in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), for determining whether an employ- ee was discharged because of the exercise of Section 7 rights. Under Wright Line counsel for the General Coun- sel under Section 10(c) of the Act, has the burden of es- tablishing the prima facie case that the employee's pro- tected conduct was a substantial or motivating factor in the employee's discharge or other adverse action taken by the employer. But, once counsel for the General Counsel has satisfied this burden, as I have found that he has done above, an employer may still avoid liability under the Act by proving by a preponderance of the evi- dence an affirmative defense that it would have taken the same action even if the unlawful motivation had not ex- isted.3 Counsel for Respondent argues vigorously that the evidence in this case satisfies its obligation under the Wright Line test. He further argues that, even if Wright Line has not been satisfied, the unrebutted testimony of Koch serves to demonstrate that Stickney's position would have been eliminated no later than March 1987 and, as a result, any order imposed on Respondent call- ing for backpay should extend no further than March 1987. Respondent's arguments are premised on the testi- mony of Koch, and other officials of Respondent, which showed (to my satisfaction I add) that sometime during 1986 Respondent undertook a review of its operations and that recommendations were made within Respond- ent's organization regarding improvements. Based on the evidence I neither could nor would reach the conclusion that no recommendation was made with respect to, among other things, the status of Stickney's position. Nor would I make any finding to the effect that Stickney's position would not have been terminated at some point relatively early in 1987. Additionally, Respondent relies on evidence, recited earlier, to the effect that some months prior to 22 Janu- ary 1987, Stickney was advised that the termination of her position was imminent, and that her transfer would be required. And, Respondent asserts that the evidence with respect to a dimunition in business clearly points toward dire financial prospects for Respondent. However, I am not persuaded by any of these argu- ments, or the underlying evidence, that the change in Stickney's status would have occurred when it did, or in the manner that it did, had it not been for her engage- ment in protected activities and refusal to desist there- from. Koch admits that her refusal to desist "brought it to a head." How am I then to conclude exactly when it would have been "brought to a head" had she been more compliant? How am I to tell what meaning Koch as- signed to the word "imminent" when he used it months preceding 22 January 1987? And, how am I to factor in the credited testimony that Stickney's supervisors pro- vided her with reassurances when she expressed her worry to them about her tenure sometime in the summer of 1986? It is my opinion and my conclusion that, just as I have acknowledged my unwillingness and inability to reach the conclusion that Stickney's job was secure, I am similarly unable to say that the evidence supports Re- spondent's contentions with respect to just when her job would have been terminated, if at all. My inability to find that this record supports any such conclusions is hardened by my recollection that, despite my repeated inquiries concerning the existence and sub- stance of business records tending to support Respond- ent's claims of business justification, Respondent never produced one bit of documentation underlying its ration- ale for the alleged business justification, or the financial data supporting the premises of any such rationale. Months after allegedly being presented with a picture of 8 The Board's adherence to this test was recently demonstrated m Joseph De Rano, DMD, PA, 283 NLRB 592 (1987) INDUSTRIAL SUPPLY CO. a dire and bleak financial future by virtue of the loss of a major contract, the evidence in this case demonstrates Respondent still doing business at approximately the same rate with that same contractor . I can only conclude that the acuity with which Respondent viewed its finan- cial straits depended on the willingness of employees, or their refusal, to give up rights granted them under the Act. Further, whether viewed on 22 January or some- time in March 1987, Respondent's financial straits are in- adequately demonstrated by what I regard to be as vague and self-serving testimony by Respondent's offi- cials. This is doubly so when it is recalled that Respond- ent's officials were at pains to describe the care and busi- nesslike nature of their analysis of Respondent's overall operations carried out in 1986, and that Respondent, though blameless, was presented with the prospect of lost revenues by virtue of losing an account in 1986. Yet, as I have stated, no records, no memoranda, no data, and no accountings were produced by Respondent to support its position and testimony. I find this failure to fully war- rant the inference, that I draw, that the reason why such documentation was not produced was that its contents would have proven unfavorable to Respondent's case. Textron, Inc., 199 NLRB 131, 134 (1972); Custom Wood Interiors, 248 NLRB 187 (1980); American Lumber Sales, 229 NLRB 414, 421 (1977). The obvious rationale under- lying these cases is one that accords with common sense and experience, i.e., that if one asserts a fact to be true, and further asserts that documentation exists that would, if produced, corroborate one's assertion of that fact, and further, no explanation is offered of the failure to produce such documentation, and in fact, that documen- tation is not produced, the inference seems clear that the documentation either would not have supported the claim or would have supported the opposite point of view. Accordingly, I reject as unproven, at this point in the case,4 Respondent's contention regarding its affirmative defense or its arguments in mitigation of the backpay ob- ligation. Accordingly, I find and conclude that Respondent constructively discharged Stickney on 29 January 1987, thereby violating Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(3) and (1) of the Act by constructively discharging its employee, Carol Stickney, about 29 January 1987 because she had en- gaged in union activities protected by the Act. 4. Respondent violated Section 8(a)(1) of the Act by threatening an employee with the termination of her po- * Respondent's contentions may well be more fully explored dung the compliance stage of this proceeding While this is Respondent's right, I trust and expect that, given my findings regarding Respondent's motives, those viewing such evidence will do so with a healthy amount of skepti- cism 645 sition of employment if she failed or refused to cease en- gaging in activity protected by Section 7 of the Act, i.e., withdrawing her pending grievance; and Respondent fur- ther violated Section 8(a)(1) of the Act by imparting to an employee that her position had been abolished and that her continued employment with Respondent was contingent on her accepting a transfer to another facility, because she had engaged in the protected union activity of filing a grievance and refusing to withdraw it. 5. The above unfair labor practices have an effect on commerce as defined in the Act. THE REMEDY Having found that Carol Stickney was unlawfully con- structively discharged, it shall be ordered that she be of- fered immediate reinstatement to her former position, displacing, if necessary, any replacement, or, if not avail- able, to a substantially equivalent position , without loss of seniority and other privileges . It shall be further or- dered that Carol Stickney be made whole for lost earn- ings resulting from the discrimination against her by pay- ment of a sum of money equal to that she would have earned from the date of her constructive discharge to the date of a bona fide offer of reinstatement , less net interim earnings during that period . Backpay shall be computed in the manner prescribed by F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed within the manner prescribed in New Horizons for the Retarded.5 It shall be further ordered that the Respondent be or- dered to expunge from its records any references to the constructive discharge or transfer mentioned above and to provide Carol Stickney written notice of such expunc- tion, and inform her that the Respondent's unlawful con- duct will not be used as a basis for further personnel ac- tions against her.6 On the basis of these findings of fact7 and conclusions of law, and the entire record in this proceeding, I issue the following recommended8 ORDER The Respondent, Industrial Supply Company, Inc., Plymouth and St. Paul, Minnesota, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees that their positions of em- ployment will be terminated if they continue to engage in protected union activities, such as filing and pursuing a grievance under the collective-bargaining agreement. 5 283 NLRB 1173 ( 1987) Interest will be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amend- ment to 26 U S C. § 6621 e See Sterling Sugars, 261 NLRB 472 (1982) As it is clear from the context of the findings made above, I leave, as I believe I must, the questions of if or when Stickney's backpay would have been tolled to compliance proceedings to ensue 8 All outstanding motions inconsistent with this recommended Order are denied . 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 646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) Imparting to employees that the reason that any such employee's position has been abolished is because they failed and refused to cease engaging in protected, union activities, such as filing and pursuing a grievance under the collective-bargaining agreement. (c) Reassigning, transferring, changing the work schedule or hours, discharging, laying off, or otherwise discriminating against employees with respect to their employment, in order to discourage their membership in or support for the Union. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Consistent with the terms and the provisions of the remedy section of this decision, offer to Carol Stickney immediate, full, and unconditional reinstatement to her former job in its St. Paul facility, or, if that job no longer exists, to a substantially equivalent position in its St. Paul facility, without prejudice to her seniority or any other rights or privileges previously enjoyed, and make her whole for any loss of earnings or other benefits that she suffered as a result of the discrimination practiced against her, and remove from its files any references to the un- lawful abolition of her position, transfer, and construc- tive discharge, and notify her in writing that it has done so, and that it will not use those, or like or related, un- lawful actions against her in any way. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records, fi- nancial data, and memoranda necessary or helpful to de- termine the amount of backpay due to Carol Stickney under this Order. (c) Post at its facilities in St. Paul and Plymouth, Mm- nesota, copies of the attached notice marked "Appen- dix."9 Copies of the notice, on forms provided by the Regional Director for Region 18, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 9 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al 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 1 POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all parties had the chance to intro- duce evidence and arguments, the National Labor Rela- tions Board has found that we violated the National Labor Relations Act in January 1987 when we abolished the job previously held by employee Carol Stickney at our St. Paul, Minnesota facility and conditioned her fur- ther employment with us upon her accepting a transfer to our Plymouth, Minnesota facility, all because she had filed a grievance pursuant to her rights under the collec- tive-bargaining agreement with the Union and had failed and refused to withdraw that grievance. It has also been found that we violated the law when we stated to Carol Stickney that her position would be terminated if she re- fused to withdraw the grievance, and thereafter, by tell- ing her that the reason her position had been terminated was because she had failed to and refused to withdraw the grievance. In order to remedy these violations, the Board has ordered us to post this notice and to live up to it. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT reassign, transfer, abolish the employ- ment position of, discharge or otherwise discriminate against employees, for joining, supporting, or assisting Warehousemen, Drivers and Helpers Union Local No. 359, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica, or any other labor organization. WE WILL NOT threaten employees that management will take, or has taken, any such discriminatory steps against employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL offer Carol Stickney immediate and full rein- statement to her former job in our St. Paul, Minnesota facility without any prejudice to her seniority or other rights and privileges previously enjoyed, and WE WILL make her whole, with interest, for any loss of earnings or other benefits that she suffered when we constructively discharged her on 29 January 1987. INDUSTRIAL SUPPLY CO. 647 WE WILL remove from our files any references to the we have done so, and that those actions will not in any unlawful actions and constructive discharge we took way be used against her in the future. against Stickney and WE WILL notify her in writing that INDUSTRIAL SUPPLY COMPANY, INC.