Austin-Berryhill, Inc.

National Labor Relations Board - Board DecisionsDec 17, 1979

246 N.L.R.B. 1139 (N.L.R.B. 1979)

AUlSTIN-BERRYHIIL. INC Austin-Berryhill, Inc. and Sheet Metal Workers Inter- national Association, Local No. 159, AFL-CIO. Case ll-CA 8141 December 17. 1979 DECISION AND ORDER BY MEMBERS JENKINS, PFNEI.0, AND TRtESDAI.E On September 10, 1979, Administrative Law Judge Almira Abbot Stevenson issued the attached Decision in this proceeding. Thereafter. the General Counsel filed exceptions and a supporting brief, and Respon- dent filed an answering brief in opposition to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE ALMIRA ABBOT STEVENSON, Administrative Law Judge: A hearing was held in this proceeding in Winston-Salem, North Carolina. on July 11, 1979. A copy of the original charge was served on Respondent February 2. 1979, and a copy of the amended charge was served March 13. 1979. The complaint was issued March 20. 1979. and duly an- swered by Respondent. The issues are whether or not Respondent threatened em- ployees that it had been futile to select the Union as their collective-bargaining representative, in violation of Section 8(a)(1) of the National Labor Relations Act, as amended and whether or not Respondent refused to bargain in good faith by unilaterally and without consulting with the Union instituting a requirement, and a condition of continued em- ployment, that all employees submit to a polygraph exami- nation and by discharging 13 employees because they re- fused to take the polygraph examination. in violation of Section 8(a)(5) and (1) of the Act. For the reasons fully explained below. I recommend that the complaint be dis- missed.' Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the oral argument presented at the hearing by the General Counsel and the brief submitted by Respondent. I make the following: FiNDINOS ()F FA(r ANI) C()N( I SIONS O() I .A Alleged Unfair Labor Practices A. Chronology Respondent is engaged at Yadkinville. North Carolina, in the manufacture of fabricated metal products. It employs a nonsupervisory complement of 25 to 32 employees. James Austin is president and LarrV McGhee is plant manager. After an election conducted by the Board, the Charging Party Union was certified on October 27, 1978, as the exclu- sive representative of an appropriate unit of all production and maintenance employees excluding office-clerical em- ployees, guards, department heads, and supervisors as de- fined in the Act. Negotiations for a collective-bargaining agreement began and were continuing at the time of the hearing. From before negotiations commenced. the plant began to be plagued with vandalism which continued into January 1979. The complaint alleges and the answer denies that Plant Manager McGhee violated Section 8a)(I) of the Act on November 9, 1978. by threatening Shop Steward Richard Morgan and employee Benford Davis that it had been futile to select the Union as collective-bargaining rep- resentative. The complaint also alleges that Respondent re- fused to bargain with the Union in good faith in violation of Section 8(a)(5) and (I) by unilaterally and without con- sulting with the Union instituting a requirement, as a condi- tion of continued employment, that all employees submit to a polygraph examination and by discharging 13 named em- ployees on January 23, 24, and 25, 1979, because they re- fused to take the polygraph examination. Respondent de- nies that it refused to bargain in good faith with the Union over the institution of the polygraph examinations and con- tends that the discharges were not unlawful. One of the 13 dischargees agreed to take the polygraph test and returned to work January 25. 1979. A strike was called against Respondent January 30, 1979. On May 8, 1979, Respondent made an unconditional offer of reinstate- ment to all the remaining 12 discharged employees. All re- turned no later than May 18, 1979. No reinstatement rem- edy is sought by the General Counsel and no backpay beyond May 18, 1979. B. Alleged Threat Steward Morgan and employee Davis visited Plant Man- ager McGhee in his office on November 9. 1978, chiefly to I No issue is raised as to jurisdiction. The complaint alleges. the answer admits, and I find that Respondent meets the Board's standard for the asser- tion of jurisdiction in this proceeding. The answer also admits. and I find. that the Charging Party Union is a labor organization within the meaning of Sec. 2(5) of the Act 246 NLRB No. 160 1139 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discuss Davis' grievances about the time allowed him to fill orders. There are three versions of a remark Manager McGhee made in the course of this discussion. Morgan's testimony is: Larry McGhee said he didn't have to tell me anything. He said we hadn't signed a contract yet. "There's not a Union in here; there's not going to be a Union in here: Jim Austin wouldn't put up with this kind of thing going on." Davis' testimony is: Mr. McGhee told Ricky that as far as that went, that they weren't considering any appointments by the Union as far as him being the shop steward and said that as far as they were concerned that there wasn't a Union there and they didn't think there'd ever be one there because they didn't think Jim Austin would ever stand for it. Davis denied that McGhee said "We don't have a union contract yet." McGhee testified: I stated that "We don't have a Union yet." . .. Mr. Morgan raised his voice and said, "We don't have a Union yet? . . . Well, we'll see about that." and I said "well, I'm sorry. I meant to say that we don't have a union contract yet, and until we do, things will be just like they were before." In assessing the credibility of these various versions, I am mindful that the testimony of the two employees was mutu- ally corroborative in certain respects as against the manag- er's contrary account. I am also mindful. however, that Morgan was less than candid with respect to the circum- stances of his subsequent discharge (not involved in this case) for using abusive language toward a company official, but admitted he told Manager McGhee during the union campaign "that he'd better think about his little boy," and that he disliked McGhee "after he saw the way he was doing the employees." With regard to the memories of the witnesses, Davis' testimony that McGhee made no refer- ence to the fact that there was no union contract yet was obviously erroneous as Morgan, as well as McGhee, re- membered the statement. Moreover, although both Morgan and McGhee conceded that their memories had dimmed with respect to other aspects of the conversation, McGhee was impressive in accounting for the reason he remembered well what he said in this respect, because he had at first made a stupid statement since he knew the Union had been voted in, and he had to correct himself when Morgan rightly challenged him on it. These factors, as well as the situation as it existed at the time Respondent, including its president, James Austin. was in fact not refusing to recognize the validity of the Board's certification of the Union or the Union's right to represent and bargain for the employees, but on the con- trary was engaged in negotiating with the Union for a col- lective-bargaining agreement-persuade me that Plant Manager McGhee's version of the November 9, 1978, con- versation was the more accurate one. As McGhee's re- marks, as credibly recited by him, did not convey a threat that it had been futile to select the Union as collective- bargaining representative, I conclude that the credible evi- dence fails to establish this violation and that this allegation should be dismissed. C. Alleged Relusal To Bargain The institution of the polygraph test at issue here had its genesis in the vandalism to which the plant was subjected from mid-October 1978. about which the evidence is undis- puted. The plant had only one fork-lift truck. and paint was dumped in its oil pan, the choke line to the carburetor was kinked, and the choke knob and wire were completely yanked out. A tap gun, gas can, large wrench, and paint guns were stolen. Writing and pictures pertaining to the shop foreman and the plant manager were marked on the restroom walls and trash cans were emptied on the rest- room floors. Paint was thrown on the company truck in the parking lot. Rough plumbing installed in a new office addi- tion was completely destroyed, and the outside automatic night light was torn out. In early November, Business Agent Gregory visited the plant and, after discussing the vandalism with Company officials, spoke to the employees in an effort to prevent fur- ther vandalism and misconduct, asking for the return of a urinal knob which was missing from a restroom. The knob was subsequently restored. On several occasions after that, gasket materials were wadded into soft balls and thrown around the plant. Again, on November 27. 1978, at a regularly scheduled negotiating session, company representatives and Gregory discussed the vandalism. and Gregory agreed to use his best efforts to stop it and to assist the Company in halting the wandering around and the laxness among the foremen and the employees. As a result, Gregory proposed a progressive discipline procedure to keep employees at their work sta- tions: the Company agreed, and the procedure was posted. Gregory was at all times in sympathy with the Company over the vandalism problem. He testified that no guards were employed at the plant and the atmosphere was one of turmoil which he thought endangered the bargaining rela- tionship. Right before the Christmas holidays, fireworks were set off three times in the plant and once in the parking lot in I day. Although no one was hurt, management considered these the most dangerous incidents because of the flamma- ble material-natural gas, oxygen, and paint thinner-in the plant. Management questioned employees, and the sheriff was called in, but no responsibility for any of the vandalism was ever established. On January 9, 1979, Respondent's counsel, James Ed- wards, telephoned Union Business Agent Gregory and in- formed Gregory he had received a call from President Aus- tin that there was more trouble at the plant. Metal shavings had been found in the oil pan of the forklift, probably the most expensive single act of vandalism, which cost Respon- dent over $1,000. Edwards assured Gregory that the Com- pany was not blaming him, but it had to do something. Austin had spoken of closing the plant for a while until things settled down but he really did not know what to do and had asked Edwards if he had any other ideas. Edwards 1140 AUSTIN-BERRYHII.L. INC. told Gregory the only thing he had been able to think of was to give all the employees polygraph tests. Gregory said he was against that. Edwards asked if he had any other proposals, and Gregory responded no. but he could not agree to polygraph tests. Edwards then told him, Well, I understand your position. You are in sort of a tough position, but, and I understand that this would be kind of a big step, but if you don't have any other ideas, then we are going to have to consider this, and make a decision on it, and I'll let you know what we determine to do.' The next day, Wednesday, January 10. 1979. Edwards dispatched the following letter to Gregory: This letter is to confirm our phone conversation in which I informed you of the problems concerning the metal shavings in the tow-motor. While we have taken into consideration your con- cerns and thoughts concerning the possibility of using polygraph tests as an alternative to closing the plant. due to the severity of the vandalism problem and the need for action we see no alternative but to administer the test to all employees to determine who is involved. Of course, anyone refusing to take such a test will be considered to have voluntarily quit. The letter reached Gregory's office sometime that week, but he was out of town engaging in other negotiations. He was advised of its contents either over the telephone by his sec- retary or when he returned to his office at the end of the week. On January 15, 1979, the following notice was posted on the plant bulletin board: MEMO TO ALL EMPLOYEES Beginning Friday, January 19th, Austin-Berryhill, Inc., will give each employee a polygraph test. We re- gret having to take this step, but with the large amount of vandalism on the property, we have no choice. We have attempted through regular channels to find the guilty party of the vandalism and have been unsuccess- ful. This measure is being taken only to insure that the guilty persons are no longer employed by this com- pany. We wish to assure every employee that there will be no prosecution through the court system of any em- ployee. Again our only goal is to determine if the guilty persons are still employed by the company and if they are, disciplinary action will be taken. Your cooperation is appreciated. Jim Austin' 2 Edwards and Gregory were in agreement as to most of this conversation. but Gregory's memory of details concededly was not as clear as Edwards' For this reason. and because I am convinced that Gregory interpolated back a remark made to Edwards in a subsequent conversation after Gregor con- sulted the Union's lawyers I do not credit Gregory that he also told Edwards on January 9 that the parties were in negotiations and polygraph tests were a negotiable item. In all the circumstances. however. I do not believe it would have affected the outcome of the case if Gregory had made such a remark at that time. 'The parties stipulated that the employees were informed hb Respondent in essence that those who did not take the polygraph test would be fired Gregory was not provided a copy of this notice, but an employee read it to him over the telephone. Gregory consulted the union attorneys, whom it took him 2 or 3 days to reach. He then called Edwards. finally locating him at a client's office on January 19. 1979. Greg- ory informed Edwards he had consulted his attorneys and they considered the parties were in negotiations and the polygraph tests were a negotiable item. Edwards responded that he agreed, and that in his opinion he had negotiated. He reminded Gregory he had called him but all he had said was he was against it and nothing else, that the Company thought it was in the right and was going ahead with the test. Gregory said he would have to take the matter to the National Labor Relations Board, and Edwards said it was his privilege.4 On January 23, 24. and 25, 1979, the 13 employees named in the complaint were fired for refusing to take the lest.' It is undisputed that $2,500 or more in total damages, most of it to the tow-motor. were caused by the vandals, and that an undetermined amount of production time was lost as a result of the vandalism. James Edwards testified that the purpose of his telephone call to Business Agent Gregory on January 9, 1979, was to negotiate with him over either instituting the polygraph tests or coming up with some other idea. Edwards and Gregory agreed that neither of them had any other ideas. that Gregory had no counterproposals to offer. and that both had done all they' could do and were frustrated over the vandalism. The law is clear that an employer is proscribed by Sec- tion 8(a)(5) and (I) from making changes in working condi- tions which are mandatory subjects of bargaining. where, as here. it is engaged in negotiating a collective-bargaining agreement with a union which is the certified representative of its employees in an appropriate unit without first afford- ing the union an opportunity to bargain about the proposed changes. It is also established that adoption of a require- ment that employees submit to polygraph examinations as a condition of continued employment constitutes such a change in working conditions and is therefore a mandatory subject of bargaining concerning which the Union must be afforded an opportunity to negotiate. I cannot agree with the General Counsel, however, that Respondent failed to satisfy its statutory obligation in this case. On the contrary. I agree with Respondent that this case is controlled by edicenter. Mid-South Hospital, spra., in which the Board held that the employer there did not refuse to bargain with the union prior to instituting a requirement that employees submit to polygraph examinations as a con- dition of continued employment following a period of van- ' To the extent accounts of this conversation disagree I have relied chiefl? on Edwards for the reasons given aoe. 'January 23: Vernie Dillard. Ronnie Salmon. Jerry Macemoure. Benl;ord Davis. Gary Cummings. Tracy McCann Randell Hudspeth. Januarn 24: Terry Hutchens. Michael Crxook. Januars 25: Gary Shore. Earnest Cranford. Mary Nixon. Brenda Buehn. 6 : I..R B Benne KAl, et . dha Hillianrhu, Sltel Prdui (i Co;. 369 IS. 736 ( 1962: . I. R B . C (on .tills C(urpuoraion. 373 :.2d 595 (4th (ir 1967) 7 lmne & Duke Srcage taIrehouse (, and Lane & Duke Terminal 14'areh,,use ( , Inc. 151 NI.RB 248 (1965), enfd In pertinent part 369 F2d 859 (5th ir. 1966,1 .Mediecnier, Alid-South Hospitai 221 NIRB 670 (1975) 1141 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dalism at the employer's hospital, because the employer was willing to bargain, but the union although offered suffi- cient opportunity to bargain did nothing but protest. Here, Respondent had been plagued with vandalism dur- ing the entire period of negotiations for a collective-bar- gaining agreement. It had questioned employees, called in a law enforcement agency, and sought the counsel and assist- ance of the Union, all to no avail. Finally, confronted with a new crisis, polygraph tests were the only action which Edwards had been able to think of as an alternative to the president's suggestion that the plant be closed. I believe Edwards' testimony that he telephoned Gregory, not to confront him with a fait accompli as the General Counsel contends, but in the hope that Gregory would come up with still another alterative way to deal with the crisis, as he invited Gregory to do. That this was Edwards' purpose is consistent with Respondent's prior conduct in seeking and obtaining suggestions from Gregory on how to solve the vandalism and other problems with which the plant was afflicted. There is no indication that Respondent or Ed- wards was interested in firing employees, undermining the Union, or using the institution of polygraph tests as a pre- text to conceal any such objectives. On the contrary, there is every indication that Edwards would have seriously con- sidered any reasonable proposal Gregory made. Although Gregory was quite firm in registering his objec- tion to polygraph tests, he conceded he had no alternative proposals or suggestions for dealing with the continued vandalism at the plant, that both he and Edwards had done all they could do and were frustrated over the problem. In these circumstances and in view of the length of time man- agement had been struggling with this problem, Gregory's sympathy with the Company in the matter, and his unsuc- cessful efforts to assist in solving the problem in the past, it is apparent that the reason Gregory did not on Janaury 9 or later make any counter-proposal, or even ask for time to consider the polgraph test proposal in order to come up with something more acceptable, was because he had run out of ideas and he knew it. The General Counsel asserts it was incumbent on Re- spondent to call a meeting with the Union to bargain over who would administer the tests, where they would be given, and what questions would be asked. It was not, however, incumbent on Respondent to raise these issues. If the Union had raised them, Respondent might well have been re- quired to negotiate them and no doubt would have done so. But the Union did not request bargaining on these matters.8 In Clarkwood Corporation, 233 NLRB 1172 (1977), the Board recently reaffirmed, . . . that a union which receives timely notice of a change in conditions of employment must take advan- tage of that notice if it is to preserve its bargaining rights and not be content in merely protesting an em- ployer's contemplated action. Such lack of diligence by a union amounts to a waiver of its right to bargain .... Respondent having lawfully instituted the polygraph ex- aminations as a condition of continued employment, it fol- lows, and I find, that the discharge of employees for refus- ing to submit to the examinations was also lawful. Accordingly, I conclude that a preponderance of the credible evidence fails to establish that Respondent refused to bargain in good faith in violation of Section 8(a)(5) and (I) of the Act by unilaterally and without consulting with the Union instituting a requirement. as a condition of con- tinued employment, that all employees submit to a poly- graph examination or by discharging employees because they refused to take the polygraph examination, and I rec- ommend that the allegation to this effect be dismissed. Upon the foregoing findings of fact and conclusions of law in the entire record, I hereby issue the following recom- mended: ORDER9 The complaint is dismissed entirely. Nor is there merit in the General Counsel's contention that this case must be distinguished from Medicenter, Mid-South Hospital, supra, because upon the union's objection to the polygraph tests there, the employer offered to abandon its plan to give the test if the union would assume financial respon- sibility for future damages by vandals, an offer which the union refused. I do not understand the Board's dismissal of the complaint as hinging in an) way on this gratuitous offer by the employer, which the Board relied on only as further evidence of the employer's reluctance to institute the tests and its openness to suggestions from the union, which were not forthcoming. 9 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall. as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order. and all objections thereto shall be deemed waived for all purposes. 1142