System 99

SYSTEM 99 System 99 and Walter Manning. Case 32-CA-4055 June 30, 1988 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT On September 30, 1982, Administrative Law Judge Timothy D. Nelson issued the attached De- cision in this proceeding. The Respondent filed ex- ceptions. 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 has decided to affirm the judge's rulings, findings,' and conclu- sions, 2 and to adopt the recommended Order as modified3 and set out in full below. ORDER The National Labor Relations Board orders that the Respondent, System 99, Oakland, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to allow an employee, on his re- quest, the right to consult privately with an em- ployee representative before submitting to an inves- tigatory interview or meeting, which the employee reasonably believes may result in disciplinary action. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. i In agreeing with the judge 's findings that deferral to the arbitration award upholding Manning's discharge is not appropriate, we have ap- plied the principles enunciated in Spielberg Mfg Co., 112 NLRB 1080 (1955), and affirmed in Olin Corp, 268 NLRB 573 (1984) In this regard, the General Counsel demonstrated that deferral is unwarranted because the facts relevant to resolving the statutory issue relating to Manning's Weingarten rights were not presented to or decided by the arbitrator, and the contractual question decided by the arbitrator is not factually parallel to the Weingarten issue presented here 2 The judge correctly concluded that the interview at issue here was investigatory in nature, and we note that this case does not involve merely a physical examination or a "fitness for duty" examination, which is not within the purview of NLRB v. J. Weingarten, 420 U.S 251 (1975) See, e g , Postal Service, 252 NLRB 61 ( 1980). 8 On our review of the record, we find that Manning was terminated because of the Respondent 's belief that he had arrived to work intoxicat- ed, and the Respondent 's interpretation of Manning's conduct as a refusal to take the sobriety test. Thus, Manning's request for the right to consult with Pinkston did not form a basis for Manning's termination In accord with Taracorp, 273 NLRB 221 (1984), which issued subsequent to the judge's decision, we find that the recommended remedy of reinstatement and backpay is inappropriate here because the Respondent discharged Walter Manning for cause We shall modify the recommended Order by deleting provisions for make-whole relief and we will substitute a notice reflecting these modifications. Member Johansen concurs in finding that a make-whole remedy is not appropriate where an employee has been disciplined for lawful reasons 723 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Post at its Oakland, California freight termi- nal copies of the attached notice marked "Appen- dix."4 Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. * 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 POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to allow an employee, on request, the right to consult privately with the em- ployee's representative before submitting to an in- vestigatory interview or meeting, which the em- ployee reasonably believes may result in discipli- nary action. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. SYSTEM 99 Bernard T. Hopkins, Esq., for the General Counsel. William E. Gore, Esq., of San Francisco, California, for the Respondent. DECISION STATEMENT OF THE CASE TIMOTHY D. NELSON, Administrative Law Judge. Pursuant to timely unfair labor practice charges filed by Walter Manning, an Individual, on November 10, 1981,11 i All dates are 1981 unless otherwise specified 289 NLRB No. 91 724 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD against System 99 (Respondent), the Regional Director for Region 32 of the National Labor Relations Board (Board) issued a complaint and notice of hearing against Respondent on December 28. The complaint alleged in substance that Respondent had discharged Manning in violation of Section 8(a)(1) of the National Labor Rela- tions Act (Act) as a result of a disciplinary interview be- tween Manning and Respondent's agents during which Respondent refused-also allegedly in violation of Sec- tion 8(a)(1) of the Act-Manning's request for a private consultation with a union representative. Respondent answered the complaint, admitting that its operations were subject to the Board's jurisdiction, but denying all wrongdoing. I heard the matter in trial at Oakland, California, on June 17, 1982. At the trial, Respondent asserted as a sep- arate affirmative defense to potential liability that the Board should defer to the results of an arbritration deci- sion in its favor, pursuant to the policy enunciated in Spielberg.2 This defense was litigated. The parties filed timely posttrial briefs, which I have carefully considered. On the entire record, I make these FINDINGS OF FACT I. BACKGROUND Respondent is a California corporation providing inter- state freight-hauling services by truck.3 It has a freight terminal at Oakland, California, where Charging Party Walter Manning had been employed for about 5 years before he was fired on August 21. The facts are disputed among the witnesses only at their marginally relevant fringes. Blending the most de- liberate recollections of the witnesses and ignoring con- trary testimony, which was improbable and/or incredibly uttered, I find that the essential facts bearing on the law- fulness of Respondent's actions are as follows: Shortly after Manning had arrived at the Oakland ter- minal on the evening of August 21 to begin a swingshift of dockwork, Respondent's terminal manager, Daniel Maher, formed the impression that Manning was intoxi- cated. Maher conferred with George Gallioto, Respond- ent's assistant vice president for operations, and then summoned Manning to a meeting in Maher's office. Maher's admitted intention was to ask Manning whether he would submit to a sobriety test and, if Manning re- fused, to fire Manning, treating his refusal as presumptive evidence of intoxication. Respondent's agents believed that the collective-bargaining agreement between Re- spondent and Teamsters Local 70, Manning's bargaining agent, authorized summary dismissal of a worker in the bargaining unit for intoxication, that it permitted the em- ployer to request a worker to take a sobriety test, and, if the worker refused to take the proposed test, that it per- mitted the employer to treat such refusal as presumptive evidence of intoxication warranting the worker's termi- 2 Spielberg Mfg Co, 112 NLRB 1080 (1955) 2 In the year before the complaint issued , Respondent performed more than $50,000 worth of services in States other than California. nation.4 Similarly, Respondent's agents believed that they would not be able to sustain a discharge decision, if it were challenged and brought to arbitration, based simply on the testimony of management witnesses that a worker appeared to be intoxicated. Rather, there were only two practical means of sustaining an "intoxication" discharge, so Respondent's agents believed; either that the worker submit to and fail some scientifically respect- able sobriety test, or that he refuse to submit to it, there- by creating a presumption that management would be sustained in acting on. Maher arranged for the presence of witnesses in the meeting room to avoid any question about the adequacy of Respondent's warning and/or the nature of Manning's reply. In addition to Maher and Manning, the meeting was also attended by Terminal Operations Manager Ron Bruno and by two employees, Gordon Pinkston and Larry Dietrich. Maher explained that Pinkston and Die- trich were intended to function merely as nonparticipat- ing "witnesses for Manning" and that the others would be witnesses for management. According to Maher, Pinkston and Dietrich were selected, rather than Chief Steward Bailey or the swingshift steward Redding, be- cause neither steward was then available.5 Pinkston, says Maher, had served in a kind of "acting steward" capac- ity in the past when regular stewards were not avail- able. 6 When the meeting began, Gallioto explained to Man- ning that management believed that he was intoxicated, that he was being requested to take a sobriety test, and that he would be fired if he refused to do so because his refusal would cause management to presume that he was intoxicated. Manning admittedly at least dodged-if not refused-the initial request that he submit to the test, protesting that he saw no need to and that he had been on medication for a recent injury.? The matter did not end, here, however. Rather, for at least another 30 min- utes, by all accounts,8 Respondent' s agents (mostly Gal- lioto) continued to ask Manning to take the sobriety test, warning of the consequences if he refused, and urging him that it was in his best interests that he do so. All 4 The union contract was not put in evidence . All parties agree, how- ever, that the contract is not explicit, but that Respondent's agents' be- liefs are well supported by the history of practice and arbitration rulings under the pertinent contract clause 5 Bailey was then on a driving run. Redding was not working that evening. This is a disputed fact, one that I need not decide in view of my recommended disposition below ' The record is not as clear as it might be whether Manning initially expressed a clear refusal to submit to the sobriety test. Respondent's wit- nesses use conclusionary language in so testifying Manning's testimony does not expressly deny this , but it also suggests that he implicitly de- clined the request by dodging the subject The General Counsel concedes on brief (at Br. 2) that Manning "refused" at this juncture I assume here- after that Manning did so, although it is clear , as detailed below, that Re- spondent's agents were not content with this preliminary indication of re- fusal s I accept this unanimous minimum estimate , although with reserva- tions, because it is difficult on this record to envision how the limited amount of conversation that has been described by the witnesses would require 30 or more minutes to conclude SYSTEM 99 parties agree, moreover, that Manning neither directly refused nor assented to these latter requests.9 At some point, unnecessary to determine with preci- sion, Gordon Pinkston made some remark to Manning tending to echo Maher's warnings that Manning could be fired for not taking the test and that taking the test might well vindicate Manning in his implicit claim that it was his recent use of a medication that accounted for man- agement's misperception that he was intoxicated. At some neighboring point, Manning stated that he would like to talk to Chief Steward Martin Bailey, making some additional complaint to the effect that Pinkston and Die- trich were not providing him with much representation. Maher or Gallioto turned down Manning's request to see Chief Steward Bailey. Maher recalls, consistent with Manning's recollection, and I find, that either Maher or Gallioto explained to Manning that "we couldn't do that for two reasons. Number 1, that we didn't really know when Martin [Bailey] would be in, it could be another hour, it could be longer. And the second reason was that Martin couldn't do anything further than what Mr. Pink- ston and Mr. Dietrich could do simply because we weren't asking [Manning] to do something that was un- reasonable or out of the contract."10 Eventually, and after he had been denied his request to confer with Chief Steward Bailey, Mainning asked if he could step outside the office to confer with Pinkston.11 Pinkston agreed that he would be willing to do this, but Gallioto turned down this request, as well, insisting that whatever could be said could just as well be said in front of everyone in the office.12 Maher or Gallioto asked Manning at least once more after the foregoing whether Manning would take the test. When Manning was again silent, he was informed by Maher or Gallioto that his initial refusal would be treated as his last word on the subject. He was then in- formed that he was discharged. Respondent subsequently issued this termination memorandum to Manning: On August 21, 1981, you came into the terminal at 5:00 p.m., behaving in an incoherent manner, a Maher explained that management went to great lengths to repeat its warnings and requests so that it would be "very obvious and apparent that [Manning) was given a number of choices and opportunities to comply with that request." 10 Galhoto testified that his reason for denying this request was be- cause he viewed Manning's request as a stalling tactic, calculated to allow the passage of enough time so that his body would have metabo- lized any excess alcohol in his blood Crediting Maher , and treating Gal- lioto's statement of his subjective intentions on the subject as just that, I find that no such reason as Gallioto described was, in fact, given to Man- ning as a basis for denying him a conference with Bailey. 11 Crediting Maher's deliberate testimony and ignoring Manning's equivocal testimony implying that Pinkston-not Manning-initiated this request 12 Respondent's agents contradict themselves and one another on the precise reasons, if any, that were given by Gallioto when he turned down the request for consultation between Manning and Pinkston There is some suggestion that Gallioto made reference to the request as a stalling tactic Elsewhere, however, Maher implied that no reason was given and that the denial of this request was because management did not think that such consultation was appropriate to the "witness" function , which it had predetermined that Pinkston would fulfill I conclude and find on equivo- cal evidence that Gallioto 's suspicion that Manning was stalling was not expressed as a reason for denying the consultation request 725 slurring your speech and smelling of alcohol. Fur- ther, after questioning you, it was management's opinion that you were unable to perform the func- tions of your job and could have possibly injured yourself or someone else in the workplace if al- lowed to continue to work. While still on duty, you were requested to take a sobriety test to determine if you were under the in- fluence of alcohol. Even though it was fully ex- plained to you that refusal to take this test would result in discharge, you refused to do so in the pres- ence of two Local Union employees. Your refusal to take a sobriety test constitutes a presumption of drunkeness under Article 44. Therefore, you are hereby discharged according- ly under Articles 42 and 44 of the Joint Council Seven Local 70 Local Pick-up and Delivery Sup- plemental Agreement. All monies due you are enclosed on check num- bers 081354 and 081555. Manning's discharge was grieved by his Union. After deadlock at an intermediate stage, the matter was re- ferred for arbitration, and an arbitration hearing was held on October 24. The details of the presentation to the ar- bitrator are not part of this record. The two witnesses who testified about that hearing, Gallioto and Union Representative Bud Pratt, each tended to be impression- istic in their accounts. Pratt's account was somewhat more detailed, though still summary in tone. He testified that three basic arguments were presented to the arbitra- tor on Manning's behalf: That the company did not advise Manning what type of sobriety test it wanted him to take; that the company did not take into account Man- ning's "medication" excuse and failed similarly to give weight to the fact that Manning was "still on disability" on the day he was fired; and that Manning had not re- ceived proper union representation-with the emphasis here being on the assertion that Gordon Pinkston was not an authorized steward or representative of the Union for such purposes. The arbitrator issued a brief, handwritten decision, stating as follows: The company is entitled, when it has reasonable cause to believe that an employee is intoxicated, to require him to take a sobriety test. If the employee refuses, in the teeth of a warning and with proper union representation, he may be discharged . Apply- ing these principles to this case, I find that the ter- mination of Walter Manning was proper. II. ANALYIS AND CONCLUSIONS This case raises questions under Weingarten i s concern- ing Respondent's right to insist that Manning answer the implicit question, "Will you submit to a sobriety test?" without allowing Manning to consult privately with either his designated union steward or with fellow em- ployee Gordon Pinkston, the employee whom Respond- is NLRB v J Weingarten, Inc, 420 U S. 251 (1975) 726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ent brought to the interview to play a "witness" role "for" Manning. The General Counsel makes several re- lated claims. Initially, the General Counsel asserts that the meeting in Maher's office was "investigative" in character, carrying with it the clear potential for discipli- nary action against Manning, and that, accordingly, it was not merely for the ministerial purpose of communi- cating a disciplinary decision already decided . Cf. Baton Rouge Water Works Co., 246 NLRB 995 (1979). Thus, argues the General Counsel, it was a classic situation in which Manning's Weingarten-established right under Sec- tion 7 of the Act to the assistance of an employee repre- sentative was triggered . The General Counsel makes two alternative Weingarten-related contentions in this regard: First, that Manning had a right to the assistance of au- thorized Union Representative Martin Bailey even if it might require a delay in the proceedings while awaiting Bailey's return from a driving run . Alternatively, the General Counsel contends that Manning was entitled to a private consultation with coemployee Pinkston before replying with finality to Respondent's attempt to get an answer regarding Manning's willingness to take a sobrie- ty test. Pursuing these points, the General Counsel argues that Manning was privileged in refusing to answer the question with finality after being denied the right to consult; and that Respondent could not, under Weingar- ten, treat his refusal to answer as itself constituting grounds for disciplinary action. Finally, the General Counsel argues under Kraft Foods, 14 that Respondent must remedy its denial to Manning of Weingarten rights by reinstating Manning and making him whole with backpay. A. The Question of Deferral Under Spielberg Under Spielberg, supra, the Board will refrain from de- ciding the statutory merits of an alleged unfair labor practice and will defer to an arbitration decision that ef- fectively decides the same issue , provided that the arbi- tration proceedings were conducted in a "fair and regu- lar" manner and that the result reached by the arbitrator was not "repugnant" to the Act. And, as the Board has subsequently made clear, a necessary condition to defer- ral under Spielberg is that the "statutory" or "unfair labor practice" issue be "both presented to and considered by the arbitrator," the burden being on the party urging de- ferral to "prove that the [statutory] issue . .. was litigat- ed before the arbitrator."15 I conclude that deferral to the October 24 arbitration decision would not be appropriate since it has not been shown that the statutory issue under Weingarten was either presented to or decided by the arbitrator. Re- spondent's showing on these points was simply too vague about what, precisely , was presented to and con- sidered by the arbitrator.16 Neither does the arbitrator's 14 Kraft Foods, 251 NLRB 598 (1980). is Suburban Motor Freight, 247 NLRB 146, 147 (1980). 16 This conclusion obtains even if one considers the testimony of Union Representative Bud Pratt, who was called by the General Coun- sel-not Respondent-regarding the details of the arbitration session decision itself reveal that he considered or decided any statutory question, let alone the many-faceted questions presented relating to Manning's Weingarten rights. Grant- ed, the arbitrator used the expression "proper union rep- resentation" within his decision; and, implicitly, it ap- pears that in sustaining Manning's discharge , the arbitra- tor concluded that Manning had somehow been accord- ed "proper union representation." What is missing from the record, however, is any indication that the arbitrator intended the quoted expression to refer to the statutory propriety of the "representation" that Respondent al- lowed Manning to have. To the contrary, if the record reveals anything of substance on the question, it is that the issue of the "propriety" of Pinskton's "representa- tion" was cast and decided in terms of whether Pinkston had any "official" status as a steward. This is not the central issue raised by the complaint, nor is it the one I decide below. Accordingly, I would not defer to the ar- bitration decision. B. The Merits So far as my own research and the parties' briefing ef- forts have revealed, there are no factual precedents for this case. It may therefore be said to present another unique twist to the interpretation and application of em- ployees' Weingarten rights. In essential agreement with the General Counsel, however, and for reasons explicat- ed below, I conclude that Respondent violated Section 8(a)(1) of the Act at least by refusing Manning's request to consult privately with Pinkston before responding fi- nally to the implicit question: "Will you submit to a so- briety test?" I further conclude that a make-whole remedy under Kraft Foods, supra, is appropriate. It is necessary to my ultimate conclusions that Re- spondent's attempts to get Manning to answer the ques- tion whether he would take a sobriety test be interpreted as having an "investigative" quality to them. In this regard, it must be borne firmly in mind that Respondent did not believe itself privileged in firing Manning based simply on the perceptions of its own agents that he was intoxicated. The right of an employer to take such action for that reason is unquestioned, but Respondent 's reser- vations were practical in character. It wanted any such decision to "stick"; and it believed, justifiably on this record, that it needed either proof in the form of test re- sults or "constructive proof' in the form of Manning's refusal to submit to a test, creating a recognized presump- tion of intoxication. In these circumstances , Manning's answer to the question posed at the meeting in Maher's office was fraught with significance. Respondent's agents knew it and went to extraordinary and formal lengths to ensure that there would be no doubt about what had happened in the meeting. The meeting was therefore confrontative in character, and Manning's refusal to accept the invitation to take the sobriety test would be an "admission" for disciplinary purposes equal in strength to an employee's outright admission of miscon- SYSTEM 99 duct in a meeting called to investigate whether the em- ployee had engaged in misconduct.17 Accepting these interpretations makes it simpler to conclude under Weingarten that Manning was entitled to the assistance of an employee representative. Weingarten makes clear that an employee who is asked to answer questions in an interview about his suspected misconduct is entitled to insist on union representation at such a meeting and that he is further insulated from discipline for refusing to participate if the employer refuses his demand for such representation. Where, as here, an em- ployee is advised by his employer-and therefore he "reasonably believe"-that he may be disciplined if he refuses to submit to a proposed set of tests, there appears to be no reason for concluding that he should not be en- titled to the services of representative before deciding what he will do. Indeed, it is commonplace for employ- ers to tell employees that their "rights" in a given situa- tion are limited to a single set of alternatives. And it is equally a phenomenon common to industrial life that em- ployees will mistrust such "either/or" statements as cor- rectly expressing their legal or contractual options. It is therefore evident that, as an exercise of the Section 7 right of employees to engage in mutual aid and protec- tion, an employee may wish to consult with an employee representative before accepting an employer's ultimatum; and, being denied that request, that he may wish to "dummy up" in the face of further attempts by his em- ployer to question him. Viewed this way, there is no ap- parent basis for distinguishing Manning's interest in rep- resentation from the interests under Section 7 that Wein- garten recognizes. I therefore conclude that under these circumstances, Manning enjoyed the panoply of Weingar- ten protections during the meeting in Maher's office. The remaining question is whether those protections included the right to consult, and if so, with whom. Whether Manning had a Weingarten right to delay the interview until Chief Steward Bailey returned, the ques- tion is doubtful, considering that Bailey was not expected back for perhaps an hour, so far as this record shows; t s and the passage of that much time has made the results of any sobriety test to which Manning might ultimately agree to submit largely useless (although no record was made on this question). See, e.g., Coca-Cola Bottling Co., 227 NLRB 1276 (1977). I need not decide this question, however, because I conclude that Respondent was obli- gated to provide Manning with an opportunity to consult with Pinkston once Manning requested that right. I note first in this regard that Respondent has insisted throughout these proceedings that Pinkston was a suita- ble "alternate" union representative. It is equally clear from Maher's testimony on cross-examination, however, that Respondent was not prepared to allow even Pink- 17 Respondent nowhere argues that Manning's refusal to take a sobne- ty test would be treated as punishable "insurbordination" and it is clear on this record that Manning was not fired because of his failure to follow an order Rather , it bears repeating that Respondent 's agents were look- ing for proof that Manning was intoxicated , which "proof' could be sup- plied by his refusal to take the test. 18 Company testimony to this effect is not impeached by Manning's testimony that he met Bailey at the terminal about 15 or 20 minutes after he was discharged . By any account of the timing , this was at least 20 or 30 minutes after Manning requested Bailey's services 727 ston to play any truly "representative" role in the inter- view. Rather, Maher's avowed intention was simply that Pinkston would be a "witness for" Manning. Respondent had no right to impose such limits on the function of the employee "representative" for Manning, however. Rather, it is now settled that an employee has the right to consult with an employee representative before undergoing an interview when Weingarten protec- tions apply. Climax Molybdenum Co., 227 NLRB 1189, 1190 (1977), enf. denied 584 F.2d 360 (10th Cir. 1978); Pacific Telephone & Telegraph Co., 262 NLRB 1048 (1982). It was evidently the view of Respondent's agents Gal- lioto and Maher19 that no amount of "consultation" be- tween Manning and any representative could have changed the picture or altered the alternatives open to Manning as Respondent had presented them, and that any such consultation would therefore have been a waste of time.20 This is not a judgment for Respondent to make, however. Rather, it is an employee's right under Section 7 of the Act to act in concert with fellow em- ployees, which is the source of Weingarten protections, and, like other Section 7 rights, an employee's exercise of them is not subject to the employer's agreement that the exercise would be worthwhile. Clearly, in any case, Manning was on the spot; and it was hardly unreason- able of him to believe that a private, candid conference with an employee representative might give him a more reliable basis for deciding how to answer Respondent's question than would the statements made by the manag- ers who had declared their inclination to fire him. The cited cases appear to contemplate exactly this kind of consultation; and it should be recalled that Respondent had the right, acknowledged by Weingarten, to proceed on the basis of information it could obtain through other means, if it did not wish to accord Manning the right to consult. Respondent would probably argue here that there were no other means by which it could sustain Man- ning's discharge if he refused to take a sobriety test. But, if true, this was a dilemma of Respondent's own creation. First, if Respondent indeed has no contractual right to fire employees for perceived intoxication, it is because it has waived the right, either expressly, or by its failure to obtain more favorable contract language at the bargain- ing table after arbitration rulings interpreted the contract as a waiver of such rights. Second, Respondent could have accorded to Manning the right to consult an em- ployee reprenstative, and, having done so, could have acted on the postconsultation response of Manning. I 19 See especially testimony of Maher on cross-examination 20 I have concluded above that Respondent's agents did not express any particular concern-at least in the case of the request to "step out- side" to talk to Pinkston-about the delay that granting that request might entail Equivocal testimony by Respondent's agents supports this conclusion I conclude here that Respondent 's agents were not, in fact, particularly concerned that the request to step outside to talk with Pink- ston was intended as a stall or would undermine any ultimate test results Equivocal testimony by Respondent's agents likewise supports this con- clusion This conclusion is buttressed, moreover, by the fact that Re- spondent, for tactical reasons of its own, was willing to spend at least 30 minutes in attempting to extract from Manning an unequivocal refusal to submit to a sobriety test 728 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD find no suggestion in Weingarten nor in the construing cases that would permit an employer to ignore an em- ployee's Weingarten rights simply because it has waived the right at the bargaining table to act on other evidence available to it (presumably doing so to obtain some bal- ancing concession). Rather, having made such a waiver, it is not our concern that Respondent may find it diffi- cult to sustain an intoxication discharge unless it accords Weingarten rights of consultation before requiring an em- ployee to make an election whether to take the sobriety test. It is clear that Respondent chose not to fire Manning based on any impressions formed by its agents that he was intoxicated . Rather, it treated his very refusal to say whether he would take the test as tantamount to a refus- al to take the test and relied on that constructive refusal as proof of intoxication, independent of its suspicions. This may, in itself, render its discharge decision unlawful as constituting, in effect, punishment for his privileged si- lence after being denied Weingarten rights to consult.21 This question need not be decided, however, because the remedy would be the same in these circumstances even if Manning's discharge was for alleged misconduct, which was the subject of the August 21 meeting. Kraft Foods, supra. There, the Board held that a traditional make- whole remedy is presumptively appropriate once the General Counsel has "prov[ed] that respondent conduct- ed an investigatory interview in violation of Weingarten and that the employee whose rights were violated was subsequently disciplined for the conduct which was the subject of the unlawful interview." On such a showing, the Board noted, "the burden shifts to the respondent ... [who] must demonstrate that its decision to disci- pline the employee . . . was not based on information obtained at the unlawful interview." 251 NLRB at 598. The prima facie basis for a make-whole order is found in the conclusion above that Respondent owed a duty to permit Manning the right to consult with Pinkston before he decided how to answer management's ques- tion, coupled with the undisputed evidence that Manning was "subsequently disciplined for the conduct [intoxica- tion] which was the subject of the unlawful interview." Respondent came forward with no evidence in support 21 E.g , Garment Workers Union v. Quality Mfg. Co., 420 US 276 (1975), but see L. A Water Treatment, 263 NLRB 244 (1982) of its own burden. To the contrary, everyone agrees that it was Manning's construed refusal to take the test that was the effective basis for his discharge . This, clearly, was "information obtained at the unlawful interview." See, especially in this regard, L. A. Water Treatment, supra at 245 fn. 9. Respondent has also claimed-and it is tempting to conclude-that Manning's initial "refusal" to submit to the test, expressed before he made any Weingarten re- quest, was the "independent" and real reason it relied on in firing him, and that the reason was not a product of the succeeding, unlawful portion of the interview. What- ever might have been management's right at that prelimi- nary stage is, however, an academic question ; for it is equally clear-and Maher expressly acknowledges it- that if Manning had, at any subsequent stage, indicated a willingness to take the test, he would not have been fired unless and until he failed the test . It must be recalled in this regard that if Manning had been permitted to consult with Pinkston, the latter might well have pointed out that, under the circumstances , Manning had nothing to lose by taking the test. Hearing this from a fellow em- ployee in a candid, private setting might well have caused Manning to agree to the test, rather than remain- ing silent on the question. And, if he had so agreed, he might have passed the test. Respondent's refusal to accord Manning those consultation rights has therefore made it impossible to know whether Manning would have been fired based on evidence other than that "evi- dence" which it obtained through Manning's silence- evidence that was itself tainted by its unlawful conduct. In such circumstances, under Kraft Foods, supra, Re- spondent has not carried the burden that shifted to it. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By denying to Walter Manning the right to consult privately with a fellow employee before deciding how to respond to Respondent's request that he take a sobriety test, Respondent has interfered with, restrained, and co- erced an employee in the exercise of the rights guaran- teed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. [Recommended Order omitted from publication.]