Medicenter, Mid-South Hospital

National Labor Relations Board - Board Decisions

Nov 13, 1975

221 N.L.R.B. 670 (N.L.R.B. 1975)

670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Medicenter, Mid-South Hospital and Hotel & Restau-
rant Employees and Bartenders International
Union, Local 847. Case 26-CA-5238
DECISION
STATEMENT OF THE CASE
November 13, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On June 1, 1975, Administrative Law Judge
Bernard Ries issued the attached Decision in this
proceeding. Thereafter, General Counsel and Charg-
ing Party filed exceptions and supporting briefs, and
Respondent filed cross-exceptions with a supporting
and answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
1 The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 In adopting the Administrative Law Judge's dismissal of the complaint
allegations , Chairman Murphy agrees with his finding that the Union had
notice and adequate opportunity to bargain over the institution of the
polygraph program established by Respondent. However, she would not
have found a violation in any event since, whether the institution of a
polygraph program is or is not a mandatory subject of bargaining, the
widespread sabotage and vandalism of the hospital facilities that were
occurring daily created an emergency situation excusing orjustifying such
unilateral action as a temporary measure to try and bring that situation
under control. See N.L.R.B. v. Cone Mills Corporation, 373 F.2d 595 (C.A. 4,
1967); New York Mirror, Division of the Hearst Corporation, 151 NLRB 834
(1965).
1 In fact , the complaint names 38 dischargees , but General Counsel
conceded at the hearing that two of the employees were subsequently
reinstated without loss of benefits.
2 General Counsel and Respondent have moved to correct the transcript.
The motions being unopposed and the corrections for the most part
appearing to be warranted, the transcript is corrected , with some
221 NLRB No. 105
BERNARD RIES, Administrative Law Judge: This case
was heard in Memphis, Tennessee, on March 12-14, 1975,
pursuant to a charge filed on July 31, 1974, and amended
on August 6, 1974, and a complaint issued on November
22, 1974, and amended on January 8, 1975, and again
amended at the hearing.
The complaint alleges that Respondent violated Section
8(a)(5) and (1) of the National Labor Relations Act by
instituting, on or about July 31, 1974, a polygraph test for
its employees without bargaining in good faith with Hotel
& Restaurant Employees and Bartenders International
Union, Local 847, the certified exclusive bargaining
representative of certain of Respondent's employees. In its
answer, Respondent denies the critical allegations of the
complaint. As a remedy for the alleged unlawful unilateral
action, General Counsel requests, inter alia, reinstatement
and backpay for 36 unit employees who refused to take the
polygraph test and were discharged for so refusing.'
Upon the entire record,2 and after due consideration of
the briefs filed on or about April 25 by General Counsel,
the Charging Party, and Respondent, I hereby make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a corporation which, at all material times,
has operated a hospital and extended care facility in
Memphis, Tennessee.3 During the 12 months preceding
issuance of the complaint, Respondent received gross
revenues for services rendered to patients at its Memphis
location in an amount exceeding $100,000. The answer
admits that Respondent has been and is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the Charging Party,
Hotel & Restaurant Employees and Bartenders Interna-
tional Union, Local 847 ("the Union"), has been and is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent's hospital is a six-floor building, containing
more than 84 patient rooms and the institutional facilities
normally found in a hospital. The patients are generally
modifications of my own.
3 The complaint alleges that the facility is a "nursing home and extended
care facility"; the answer contends that it is a "hospital and extended care
facility." Although the conflict implicates no matter of legal significance, the
testimony, hereafter described, suggests that the facility is more aptly
characterized as Respondent contends.
MEDICENTER, MID-SOUTH HOSPITAL
older people, most of them not ambulatory. The primary
type of surgical procedure performed is a retinal detach-
ment operation, of which there are some 40-45 each week.
The patients on whom such operations are performed are
usually diabetics in poor physical condition. The hospital is
owned and operated by Medicenters of America, Inc.,
which has 26 such facilities in 18 states. Vice president of
operations for the parent corporation is James Morris.
G.L. Miles, who reports directly to Morris, is the
administrator of the Memphis facility.
The hospital employs about 170 employees. In Septem-
ber 1973, the Union was certified as the bargaining
representative of the hospital's 75-80 service and mainte-
nance employees, including such job classifications as
housekeeping and maintenance employees, and excluding
such categories as licensed nurses and physical therapists.
About 10 bargaining sessions were held between October
1973-January 1974, and apparently substantial progress
was made , but no contract resulted-the "big holdup,"
according to administrator Miles, was the Respondent's
refusal to accede to the Union's demand for a dues
checkoff provision.
Union activity was relatively dormant until June 10,
1974, when the Union established a picket line outside the
hospital, manned primarily by off-duty employees. The
picket line was still in operation as of the hearing.
July 1, 1974,4 marked the beginning of a series of acts of
vandalism at the hospital. On that day, and-throughout the
month of July, toilets in the rooms of patients were stopped
up with such foreign matter as rocks, gauze, plastic
containers , and other medical supplies, causing the toilets
to overflow when flushed. The overflow often ran onto the
floor and seeped into the carpeting in the patients' rooms.
In about half the incidents, dismantling, of the toilets was
required in order to remove the objects.
On July 1, five toilets were stopped up. That same
evening, three tires on the hospital station wagon, parked
in the hospital parking lot, were slashed; the following
evening , the slashed tires having been replaced, all four
tires on the station wagon were cut; on the weekend of July
6-8, two replacement tires on the vehicle were slashed
while parked for safekeeping at an employee's home.
On July 12, a visitor's automobile was maliciously
vandalized during the day, and 24 tires on 11 cars parked
in the lot were slashed that night. On the same day,
responding to-a complaint from the chief anesthesiologist
that the operating rooms were becoming overheated, at a
time when three operations were in progress, Miles
discovered that a section of the Freon line on the air-
conditioning unit had been broken off.
During this period, Miles also received reports that a
number of employees had received communications from
unidentified callers, threatening harm if the employees did
not support the Union.
The problems presented were, patently, serious ones. The
overflow of human waste from the toilets, seeping into the
carpets , created the possibility of infection of the debilitat-
4 All dates referred to hereinafter are in 1974.
8 The commodes are located in the rooms of the patients , and there are
28 patient rooms on each nursing service floor . During the month of July,
there was an average of 75-80 patients in the hospital each day.
6 The record is unclear as to when the possibility of employing a he
671
ed patients and, as well, caused sickening odors, provoked
complaints from patients and relatives, and required
nurses, housekeeping employees, and maintenance men to
devote a substantial amount of time to cleaning up the
spillage and unclogging the toilets. The damage to the
automobiles was costly; the hospital had no insurance
covering automobiles in the parking lot, and paid over
$1000 for tire replacements for the vandalism of July 12
alone. The broken air-conditioning line in the surgical
suites, in the words of the chief anesthesiologist, "definitely
places the patient in extreme danger with possible fatal
results."
Miles cast about for solutions to the sabotage. He
consulted with Morris, his superior. The police were
repeatedly summoned. On July 5, additional security
measures relating to access to the building were instituted
and arrangements were made to have a guard stand watch
in the parking lot at all times. On July 8, floor supervisors
received instructions to secure all small nursing supplies
which might be flushed down a toilet and to issue them to
employees only as the need arose; to assign nursing aides
by room number; and personally to flush each toilet on
their floor at the beginning and end of each shift .5 After the
tire-slashing incident, the hospital offered a $500 reward
for information about the persons "involved in the slashing
of automobile tires beginning July 1, 1974." The Union
offered a similar reward.
Sometime in July,6 Miles talked to Judith Ullery,
director of nursing, about the possibility of using poly-
graph tests to identify the employees responsible for the
vandalism. Mrs. Ullery, whose husband was then undergo-
ing polygraph training, suggested that Miles contact a
Lieutenant Harlan, a police officer who administered
polygraph tests during off-duty hours. Miles spoke to
Harlan that same day, telling him about "the problem that
we had at the hospital regarding the stopped-up com-
modes, the vandalism, the threats of bodily harm to some
of our personnel," and asked=-him if he could work out
some type of polygraph examination capable of detecting
the culprits. Harlan said he would contact Miles later.
Miles thereafter, and on several occasions -during the
next few weeks,, discussed with Morris the possibility of
introducing the lie detector examination . They both
considered it a serious step,; and noted the possibility that
the entire staff might walk out in protest of such a measure.
During this period, Miles also had several conversations
"in the parking lot" with Rozelle Fields, secretary-treasurer
and business agent of the Union; in which Miles discussed
the vandalism, but did not tell Fields that -a polygraph
program was under consideration.
On July, 17, • an employee named Clarence Crawford
swore out warrants for the, arrest of employees Brenda
Jackson and Betty Williams, charging them with malicious
mischief in connection-with the-stopping of commodes. On
that day, Ullery had attended an interview between
Crawford and a police investigator in which Crawford had
allegedly stated that he had seen Jackson and Williams
detector test was first broached. Miles stated that he thought it was during
the week following the escalated vandalism of July 12. While Miles struck
me as an honest witness, his capacity for recall of dates, tunes , and figures
left something to be desired , although it did not seem outside the range of
normal human fallibility.,
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,drop objects in toilets, and that Union Business Agent
Fields had allegedly told Crawford that he knew a "firm
that could, 'fix', the air-conditioner so it- would be hot in
surgery , again ." Later that day, Crawford allegedly identi-
fied to Ullery another employee, then walking the picket
'line, as one who had asked Fields at a union meeting on
July 16 if he' would like her to go back to stopping up
-commodes. On July 18, Miles took a written statement
fro In Crawford in which Crawford again implicated certain
employees and Fields in the vandalism.
Around July 18 or' 19',''Miles met with` Harlan and they
discussed the type of polygraph test that would suit
Respondent's purposes and the costs of such a program.7
Harlan assured Miles' that the test would identify the
employees involved in the vandalism. In the ensuing days,
Miles and Morris discussed the ramifications of the matter,
including the possibility of a mass walkout of employees
and the anticipated reaction of physicians in the Memphis
community. During the,week of July 22, Miles purchased
additional' disposable- linen and dietary supplies (adding
these to a .stock accumulated, a few months earlier in
anticipation of a possible strike).and discussed with Morris
,a contingency plan of hiring temporary personnel from
focal employment agencies.
The trial of Jackson and Williams was scheduled for
Friday, July 26. Miles credibly testified that he made no
firm commitment for Harlan's services prior to that date
because he thought that conviction of the two employees
would serve as, a deterrent to further vandalism. At the
trial, however, which Miles,and Morris attended, com-
plainant Crawford gave testimony that Williams and
Jackson had only accidentally dropped some paper towels
in the toilets, and they were acquitted.
Over the weekend, Milos and Morris again discussed the
matter„and, in Miles' words, "[w]e pretty well formulated
our plans to get the polygraph." Miles also testified that the
"final plan was formulated around the 23 or 24th," and
that, on the "24th and 25th,the drafts [of the notice to
employees, set out infra] were being prepared."
It should be noted that as of the weekend ending
Sunday, July 28, there -had been no automobile vandalism
since July 12. Miles had, as of that time, continued to
receive reports that staff employees were being threatened
by telephone, although he was unspecific as to time and
number, and in the "latter part of July," Mrs. Ullery
received a letter signed by a friend" telling her to be
careful because she was in grave danger and also, warning
Miles to watch out for himself.
The testimony as to the ;extent to which the toilets
continued to be sabotaged in, the latter part of July is, to
say the least, confusing. It appears-that no accurate record
of the, incidents was maintained. Miles kept a "rough"
count as ,he received reports of stoppages each day, but his
7-The "screen" test , which was eventually administered , was, priced at
$35 per person . There was no appearance or other fee charged by Harlan;
the flat rate Was $35 per capita, and if Miles'chose to cancel the tests before
they began or in the midst of testing, there would be no cost involved other
than for the tests actually administered.
8 When confronted at the hearing with this' apparent contradiction, Miles
attributed his statement to "bad arithmetic ." It may well be, however, that
the figure , of 63 or' 64 which stuck m,Ihis mind pertained to the number of
toilets which had to be dismantled , as opposed to those which were simply
records were incomplete. On direct examination, Miles
testified that there had been a total of 64 commode
stoppages in July, that they occurred, on a "daily" basis,
and that during the' period in which' he looked 'into the
subject of, polygraph testing, there were "at' least two or
three a day or more.".-In an affidavit given on' August 23,
1974, however, Miles had set the figure for the month at a
total of 63, with more than 50, stoppages having occurred
by July 12.8
Mrs. Ullery testified that, staiiing on. July 1, there had
been two or three stoppages a day, and around July. 12, she
came to,work and found that "something like 30 or- 40
commodes had been clogged .... That's an estimate, but
it ,was a large amount of commodes." She further, testified
that the, vandalism had subsided for a few days after the
supervisory procedures were posted on July 8, but
increased in incidence thereafter ,to "two or three" a day
until the polygraph tests were administered. Janet Green, a
nursing ; assistant testifying for Respondent, said "every
night there would be anywhere from eight to' ten com-
modes stopped up," that "some nights" the figure would be
"as' high as -12 commodes or more," and that the average
per day was "[a]nywhere from-eight to twelve" all the way
through July.
I regard Green's testimony as incredible, not only
because of its startling inconsistency with that given by
Miles and Ullery, but also because her demeanor and the
content of her testimony left me with the firm impression
that her indignation about the misdeeds of other employees
(there were no more problems "[a]fter this other bunch
left") "led her into exaggeration. Although the statement
given by Crawford to Miles on July 18 suggests ' that 'the
commode problem had ceased by July 16-in the state-
ment Crawford says that at a union meeting on July 16, a
nurse's aide had asked Business Agent Fields "if he would
like her to go back to stopping up commodes," to which
Fields assertedly replied, "No, we have done -enough .of
that., We do not want to, work our maintenance men to [sic]
hard"-I, found Mrs. Ullery to be a most impressive
witness, and one who was closer to the scene than Miles,
and I believe her testimony, and that of Miles, that the
toilet sabotage continued, perhaps at a rate of 2 or 3 'a day,
up until the end ofJuly.,
Miles credibly testified that he feared that the July 26
dismissal, of charges against Williams and Jackson would
foment anew wave of vandalism. Over the weekend of July
27-28, Morris told Miles that the' final decision on the
polygraph testing was up to Miles, and Miles finally, but
with reluctance, decided to set the wheels in motion. '
On Monday, July 29; at about 10 a.m., after discussing
its contents with the hospital's labor counsel, Miles had the
following notice posted on the hospital bulletin boards:
clogged up. In examining his affidavit (Q'r.C. Exh. 10), I note that while
Miles refers at p. 2 to a total of 63 commodes which were "deliberately
stopped-up," he talks at page 10 of "some 63 instances we had had of
stopped-up commodes which required dismantling and repair" (emphasis
supplied). According to his other testimony, about half of the - stoppages
required dismantling The number of stoppages resulting in repair work may
have assumed special significance for Miles; causing hire to remember that
figure as representing the total number'of stoppages.
MEDICENTER, MID-SOUTH HOSPITAL
TO ALL EMPLOYEES AND PROSPECTIVE
EMPLOYEES
The Mid-South Hospital is implementing a Security
System within the hospital complex. We do this to
protect our employees from unfair accusations.
Due to events, past and present which you are all aware
of, we are implementing a Polygraph Program as a step
in increasing internal security and protection of our
present employees and patients against unlawful
actions.
The polygraph examination is simple, takes little time,
and is not uncomfortable or embarrassing in any way.
No question will be asked about your personal or
private life; furthermore, no inquiries will be made
about protected concerted activities, if any, in support
of a labor organization.
Your participation in the Polygraph Program is a
condition of your continued employment.
Since this program will benefit all concerned, we expect
and appreciate your full cooperation.
Sincerely,
G.L. Miles,
Administrator
Also posted was a schedule setting out the times at which
employees would take the tests, which were to begin at 8
a.m. on Wednesday, July 31, and continue until Tuesday,
August 6. All 166 employees of Respondent, both unit and
nonunit and including supervisory personnel, were re-
quired to take the examination.
Prior to posting the notice, Miles did not notify or
otherwise consult with Union Business Agent Fields about
the decision to implement the polygraph examination. He
testified that he did not do so because:
I felt like that Mr. Fields and the union was responsible
for all my problems out there, for the sabotage and the
widespread vandalism, that it would not be easy to
negotiate with Mr. Fields in it because of this.9
Shortly after 10 a.m. on Monday, Fields received a can
from a hospital employee who told him about the posted
notice . At about 11 or 11:30 a.m., Fields went to Miles'
office and raised with Miles the question of the reinstate-
ment of Jackson and Williams, who had been suspended
when the warrants for their arrest had been issued. Miles
testified that he told Fields that the matter of their
involvement in the vandalism was under "further investiga-
tion" and he would not take them off suspension.1°
The remainder of the conversation is controverted.
Fields says that he then "informed Mr. Miles that it had
been brought to my attention that a polygraph test was
going to be instituted at the company on July the 31st. He
9 I am not sure that Miles' failure to approach the Union was as
considered a judgment as this testimony would suggest. At another point, he
testified that , it "never occurred" to him to discuss the matter with the
Union . I am inclined to believe, in view of his obvious belief that the Union
673
said that's correct, and that was the extent of our
conversation. We didn't elaborate, we didn't go into
further details." On cross-examination, however, Fields
conceded that the discussion had not been so abbreviated.
He admitted, consistent with the testimony of Miles,
discussed below, that Miles had displayed to him a number
of objects which had been retrieved from the toilets.
Miles testified to a substantially different conversation
regarding the polygraph tests. He said that he, not Fields,
brought up the subject of polygraph testing: "I mentioned
to Mr. Fields that we were going to do the polygraph on
Wednesday." In response, according to Miles, Fields said
,that if that was the case, Fields would have to cancel a
planned trip to Washington. Fields further allegedly said
that "under no circumstances would the Union agree to
polygraph examinations; the International wouldn't allow
it; it's unconstitutional; it can't be used in a court of law;
and [the Union] would never under any circumstances
agree to a polygraph." A discussion of the sabotage
followed, with Miles saying, "Well, what else could I do? I
can't find out who is doing the violence here." Miles then
displayed to Fields "some of the paraphernalia of the items
that were taken out of the commodes." " Fields repeated that
"under no circumstances" would he allow the employees to
take the test, and he thereupon left, saying something like,
"Well, I'll see you Wednesday morning with my attorney."
I find Miles' account to be more persuasive, not only
because he seemed to be an honest witness, but also
because of the following circumstances. Fields, as noted,
stated on direct that the polygraph test was only casually
mentioned and that was the "extent of our conversation,"
but admitted on cross that Miles had shown him some
items retrieved from the toilets. But such a conversation,
limited to a reference to the polygraph test followed by a
wordless display of the foreign matter found in the
commodes, is, unrealistic; if they reached the point of
looking at the,materials used for sabotage, there must have
been some contextual conversation. I also cannot believe
that Fields, a facile and authoritative speaker, failed to
register a protest against the planned testing; as he noted
elsewhere, "I'm always against polygraph tests." It might
well be surmised, in fact, that Fields' did not make his visit
to Miles that morning simply to discuss the reinstatement
of Jackson and Williams, but more probably to voice his
opposition to the polygraph testing, of which he had just
been informed. Arid as for Miles' testimony, and Fields'
specific denial, that the latter said he would return on
Wednesday morning, while Miles did not mention this in
his pretrial affidavit, his testimony was corroborated by
Director of Nursing Ullery, whom I considered to be an
extremely convincing witness. She testified that Miles told
her at 8 a.m. Wednesday morning that "Mr. Fields was
coming over and he [Miles] was hoping that maybe this
could be prevented. He said that he thought maybe Mr.
was responsible for the misconduct , that the thought of discussing the
polygraph testing with the Union in fact "never occurred" to him.
10 Jackson and Wilh.ms were reinstated on July 31, but they then
refused to submit to the polygraph test and were discharged.
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fields had something to offer, that we might not have to do
this." 11 Miles obviously would not have said this to Ullery
had Fields not given him a prior indication that he would
indeed return on Wednesday morning.
Fields testified that when he left the hospital on Monday,
he called his attorney, Michael Adler, but was informed by
Adler's secretary that Adler was out of town, and that
Adler did not return his call until noon on Tuesday, July
30, at which time Fields and Adler agreed to-meet of the
hospital on the morning of July 31.12
On Wednesday, July 31, the day on which the testing
was to begin , Fields and Adler came to Miles' office about
8 a.m. The testimony relating to the events` occurring in the
next few hours is also in serious conflict. After carefully
reviewing the relevant testimony and noting the substantial
contradictions between the accounts given by Fields and
Adler, and because I felt that Miles testified sincerely and
that Fields, as indicated above, was not as inclined to give
a straightforward account, I believe that, the conversation
followed the general outline testified to by Miles.
According to Miles, Adler stated that he was there to
discuss the polygraph examination . Saying that he "didn't
see where I had any other choice," Miles showed Adler
some of the sabotage material which he had preserved.13
Miles explained to Adler the nature of the problems the
Respondent had been experiencing, and reiterated that he
didn't know "any other way to clear out the -persons
involved."
Adler asked for a week to "work this thing out and then,
after a week, if we can't, then give your polygraph." When
Miles then asked Fields if he 'agreed with that request,
Fields said, "No, no, no. We'd never agree to the
polygraph examination. Never under any circumstances
would we agree to the polygraph examination." 14 Miles
then turned to Adler and asked if the Union would stand
responsible for any damage if the testing was canceled.
Fields refused the proposition . Miles said that if the Union
would not accept responsibility, and the testing was
cancelled, it would be "Katie-bar-the-door as far as the
11 Ullery was scheduled to be the first employee to take the polygraph
test, and Miles , in anticipation of Fields' visit, told her not to go ahead as
scheduled. Miles testified that the "offer" he expected from the Union was
agreement to Respondent's last contract proposal, Miles thought that if a
contract was agreed to, the vandalism, which he assumed to be union-
inspired , would cease.
12 Respondent argues that certain testimony by Fields relating to a
warrant which Clarence Crawford intended to swear out against Fields
establishes that Adler was in fact present in his office on July 29. The
testimony, however, only shows that, on July 29, Fields made a written
statement regarding this episode, but the evidence does not'estabhsh that
the date on which news of the prospective warrant reached Fields (after
which he went to Adler's office and met with him) was July 29.
13 Adler affirmed that Miles did so.
14 On cross-examination , Fields conceded that he "opposed Mr Adler's
suggestion that a week was going to work anything out, and [he was ] saying
a week wasn't going to work anything out " He also testified that "we told
him we thought [the polygraph test] was basically unfair."
15 Henderson was delayed en route to the hearing and did not testify.
The parties stipulated , however, that Henderson would have testified that
when he arrived at the hospital, he first spoke with Miles about the problem;
that he then spoke to Adler and Fields in the dining room; that Adler and
Fields requested a 1-week delay, that he and Miles caucused again, with
Miles explaining the need for a guarantee against damages , that they
rejoined Adler and Fields, who confirmed that the Union would not act as a
guarantor against vandalism ; and that Henderson then left the premises.
sabotage of the building. They will tear us apart and you
know it."
Miles then asked for an adjournment in order to call his
attorney, Kenneth-Henderson. Adler and Fields repaired
to the cafeteria and waited for Henderson, who arrived 45
minutes later. They spoke together for 10 minutes.1r-
After Henderson conferred with Adler and Fields, he
spoke to Miles, who told him that he could not cancel the
test without 'an assumption of liability by the Union.
Henderson again `spoke briefly to Adler and Fields and
then departed. 16
The examination began between noon and 1 p.m. that
day.17 The test consisted of 10 questions put to the
employees, which are reproduced below:
1. Is your last name --------------------?
2. Do you actually know anyone stealing from this
hospital?
3. Have you ever stolen money or merchandise
from this hospital?
4. Have you done any vandalism to this hospital or
harm to any of its employees?
5. Do you ever drink coffee?
6. Have you ever stolen narcotics from- this
hospital?
7. Do you have any hospital property or equipment
at your house that you should not have? '
8. Did you ever drink alcoholic beverages during
working hours?
9. Have you ever used a system to cheat this
hospital?
10. Are you trying to withhold any information
from me here today?
Miles testified that while he had not expressed to
polygraph operator Harlan any concern about certain of
the topics covered by the examination (such as the theft of
narcotics), Harlan had included in the test some questions
16 Fields testified on direct that, initially, he and Adler spoke to Miles for
only a "couple of minutes" (Adler said it was "15 or 20 minutes"), at which
time Fields asked for a 3-week delay in implementation of the program and
Adler asked for a 1-week delay, both requests being refused. Miles then
called in Henderson, the union representatives again asked for and were
denied a 3-week or 1-week delay, and then scaled their request down'to a
24-hour delay, "and we explained to Mr. Miles that we needed that time so
that we may orientate our people as to what a polygraph test is . There was
no way we could get to all those people in such a short period of time."
After Miles and Henderson left, and Henderson returned 15 minutes later,
"ve asked him to, give us some additional time so we could talk 'to the
people involved." Fields conceded that Miles had asked him.to assume
responsibility for `future vandalism (he agreed that "Miles was looking for a
way out"), and also stated that they had asked Miles the basic reasons for
giving the polygraph test, to which Miles responded 'that he believed the
Union guilty of the vandalism (followed by the apparent non sequitur "I
asked him if he was accusing us He said no, he was not") Fields stated on
direct, and then denied on cross, that Miles said that the only way to cut out
the vandalism was to implement a polygraph test. On direct, Fields said that
the request for a 24-hour delay was made to Miles before Henderson
arrived; on cross, he said the request was decreased to 24 hours "after Ken
Henderson came in ." On cross-examination, it was brought out that Fields'
prehearmg affidavit refers- neither to a request for a 3-week or a 1-week
delay nor, apparently, to a request for even a 1-day delay.
17 Miles had earlier told the polygraph operator to postpone the tests
pending the outcome of the discussion with Adler and Fields.
MEDICENTER, MID-SOU'I;R,HOSPITAL
which are routinely incorporated into hospital polygraph
examinations.
There were 38 employees who refused to take the
examination and were discharged (two of these later agreed
to submit to the test and were reinstated without loss of
benefits). Miles spoke to each employee who refused to
take the test, urging them to take it and trying to pacify any
fears they might have. Certain employees asked if they
might have a friend or attorney present , during the
administration of the test and Miles said that would be
alright.18
The Union made no further attempt to consult with
Miles on this matter after July 31, although the testing was
scheduled over a 6-day period . On July 31 , the Union filed
the charge in this case . On three occasions since July 31,
the Respondent has notified the Union in writing of
contemplated changes in terms and conditions of employ-
ment (relating to wages, the clocking system , scheduling,
and insurance benefits ) and has invited bargaining on
these matters.
Miles credibly testified that the authorization given him
by Vice President Morris to introduce the polygraph
testing extended only to the situation faced by the hospital
in July 1974.
Analysis and Conclusions
The initial question presented is whether the institution
of the polygraphs examination was embraced by the
statutory phrase "terms and conditions of employment," 19
and was, consequently, a mandatory subject of bargaining.
So far as the record shows, prior to July 31, 1974,
Respondent had never required its employees to submit en
masse to a mechanical testing procedure (or any other
wholesale procedure) for the purpose of identifying
employees who might have committed various offenses
against the hospital or -their fellow workers. The notice
announcing the polygraph test specifically stated that
participation in the program "is a condition of your
continued employment," and, as we have seen, it was fully
contemplated that refusal to submit to the examination
would automatically result in discharge.
Passing, for the moment, the significance of the fact that
a penalty attached to a refusal to submit to the examina-
tion,' it is evident that a change of this nature in the method
by which Respondent investigated' suspected employee
misconduct is a change in the "terms and conditions" of
employment at the hospital.
As suggested by Miles' interview with Clarence Craw-
ford, Respondent's traditional method of investigation was
the customary one-interrogating employees and, if
appropriate,' taking statements from them. The polygraph
test instituted'on July 31 employs a mechanical apparatus
which measures changes in the systolic blood pressure,
pulse,, and respiration. See 3A Wigmore, Evidence §999
is I disagree with General Counsel's apparent contention that a
contradiction exists between Miles ' preheanng affidavit and his'testimony
that he only made this offer to employees who asked about the possibility of
accompaniment : The affidavit, stating that "in the course of some of these
discussions," Miles told employees that they could be accompanied "if that
would make them feel better about it," strongly suggests that he made such
offers only because the particular employees had expressed apprehension
about taking the test by themselves.
675
(Chadbourn rev. 1970). The validity of the polygraph test
has never been sufficiently established to warrant its
admission as evidence in Federal criminal trials, U.S. v.
Cochran, 499 F.2d 380, 393 (C.A. 5, 1974), and the
controversy over its use has raged for the better part of this
century, see Frye v. U.S., 293 F. 1013 (C.A.D.C., 1923).
Despite scientific uncertainty about the reliability of the
test, Miles testified that the polygraph expert assured him
that the technique would definitely identify those persons'
who had engaged in misconduct,20 and it may be assumed
that Miles would have relied heavily on the results of the
test in separating the guilty from the innocent.
Against such a background, it may fairly be said that this
sort of change in an employer's investigatory method,
substantially 'varying both the mode of investigation and
the character of proof on which an employee's continued
job security might hinge, is a bargainable change in the
terms and conditions of his employment. The existing
technique for investigating and determining guilt of
misconduct involved the application of human skill,
judgment, and experience. Onto this scale, and perhaps in
lieu of naked human assessment, Respondent was intro-
ducing a chart based on variations in bodily functions,
which, as indicated, has never been considered sufficiently
trustworthy to be deemed probative in criminal proceed-
ings. The employees' jobs were on the other scale.
This analysis leads me to believe that the test itself
substantially altered the existing terms and conditions of
employment and constituted a subject of mandatory
bargaining. By way of analogy, the Board has held that the
mere change from a system of oral warnings to one of
written warnings is a mandatory bargaining subject, on the
theory that memorial:zation of warningstends to provide a
firmer foundation for, and thus increase an employee's
exposure to, future discipline. Amoco Chemicals Corpora-
tion, 211 NLRB 618 (1974) (Member Kennedy dissenting);
The Colonial Press, Inc., 204 NLRB 852; 861-862 (1973).
Also apposite are cases holding that, changes in the
mechanics of the grievance procedure-the process by
which an employee attempts to challenge the imposition of
discipline-are mandatory subjects of bargaining. City
Packing Company and Trinity Packing Company, 98 NLRB
1261 (1952); Bethlehem Steel Company, 136 NLRB 1500
(1962); The ' Celotex Corporation, 146 NLRB 48 (1964),
enfd. in pert. part, 364 F.2d 552 (C.A. 5, 1966). Further
relevant here is the passage from a law review comment
quoted with approval by the Supreme Court in N.L.RB. v.
J. Weingarten; Inc., 420 U.S. 251 (1975):
The quantum of proof that the employer considers
sufficient to support disciplinary action is of concern to
the entire bargaining unit. A slow accretion of custom
and practice may come to control the handling of
disciplinary disputes. If, for example, the employer
19 Sec 8(d) states, in pertinent part, " . . to bargain collectively is the
performance of the mutual obligation of the employer and the representa-
tive of, the employees to meet at reasonable tunes and confer in good faith
with respect to wages, hours, and other terms and conditions of employment
20 "[Harlan] was very emphatic about it . He felt like that this test would
isolate the people involved in the vandalism."
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adopts a practice of considering a foreman's unsub-
stantiated statements sufficient to support disciplinary
action , employee protection against unwarranted pun-
ishment is affected. The -presence of a union steward
allows protection of this interest by the bargaining
representative.
The Respondent contends, however, that the use of a lie
detector test is simply an "exercise of the hospital's
inherent right to investigate, interrogate employees, and
gather facts relating to misconduct," citing such cases as
Texaco, Inc., Houston Producing Division, 168 NLRB 361
(1967), Jacobe-Pearson Fort, Inc., 172 NLRB 594 (1968),
and Illinois Bell Telephone Company, 192 NLRB 834 (1971).
I do not think, however, that those cases stand for the
proposition that a significant alteration in the method used
by, an employer to elicit evidence from employees which
may convict them of misconduct is not a change in their
terms and conditions of employment.21
An employer's "inherent" right to conduct his business
has been cabined in many ways by the Act. His "inherent"
right to discharge employees is subject to bargaining about
the manner in which he does so and the causes on which
the discharge may be premised, as well as procedures
enabling the employee to challenge the employer's justifi-
cation for meting out, in a, given case, this industrial
equivalent of capital punishment. It might as well be
argued that the adoption by an employer of a system to
denote the number of penalty points to be assigned to
absences and tardiness, found to be a mandatory subject, in
Wellman Industries, Inc., 211 NLRB 639 (1974), or the
abandonment of a rule that an employee acquitted 'of
misconduct in a criminal trial will not be discharged for the
same offense , involve "inherent" employer rights and
therefore are not mandatory bargaining subjects.
In Fibreboard Paper Products Corp. v. N.L.R.B., 379 U; S.
203 (1964), the Supreme Court held that what might
indiscriminately be' labeled an employer's `inherent" right
to subcontract work was, in the circumstances of the case,
a matter about which the employer was required to
bargain ; the Court noted that this constraint "would, not
significantly abridge [the employer's] freedom to manage
the business", (379 U.S. at 213). In his concurring opinion,
Justice Stewart sought to define the kind of managerial
prerogative which, although its exercise may affect employ-
ee job security, is nevertheless subject to unfettered
employer discretion. He described that enclave of discre-
tion as "managerial decisions which he at the core of
entrepreneurial control," such as "[d]ecisions concerning
the volume and kind of advertising expenditures, product
design, the manner of financing and sales," "[d]ecisions
concerning the commitment of investment capital and the
basic scope of the enterprise," and "those management
21 It should be remembered that there was no bargaining agreement in
existence here and, accordingly, no agreed-on method for submitting for
review by an impartial party the Employer's decision that cause for
discharge existed.
22 Even where the decision itself is considered to fall within one of these
categories of managerial prerogative, the employer may still be required to
bargain about the effects of his insulated decision. N.LR.B v Royal Plating
& Polishing Co., Inc., 350 F.2d 191 (CA. 3, 1965); NLRB. v. Rapid
Bindery Inc & Frontier Bindery Corp., 293 F 2d 170 (C A. 2, 1961). By
analogy, where the policy decision itself does not necessarily require the
decisions which are fundamental to the basic direction of a
corporate enterprise or which impinge only indirectly upon
employment security" (379 U.S. at 223).22
The institution of a polygraph testis not entrepreneurial
in character, is not fundamental to the basic direction of
the enterprise, and does not impinge only indirectly upon
employment security. It is, rather, a 'change in an
important facet of the workaday life of employees, a
change in personnel policy freighted with potentially
serious ' implications for the employees which in no way
touches the discretionary "core of entrepreneurial control."
Furthermore, the mandatory across-the-board use of a
controversial mechanical device for testing whether em-
ployees, even though not specifically under suspicion, have
engaged in a broad range of misconduct might give rise to
a number of salient considerations and questions (apart
from the severity of the punishment for refusing to submit
to it) 23 which suggest the "amenability of such subjects to
the collective bargaining process," Fibreboard Paper
Products, supra at 211, and which further suggest dimen-
sions of the new procedure which qualitatively differentiate
it from the routine individual interrogation of suspected
miscreants.
The fact that the penalty for refusing to submit to the test
was discharge is an additional reason for characterizing the
initiation of this new procedure as a "term" or "condition"
of employment within the meaning of Section 8(d). In
Fibreboard Paper Products Corp., supra, at 210, the Court
stated:
A stipulation with respect to the contracting out of
work performed by members of the bargaining unit
might appropriately be called a `condition of employ-
ment.' The words even, more plainly cover termination
of employment which, as the facts of this case indicate,
necessarily results from the contracting out of work
performed by members of the established bargaining
unit.
Thus, the Court held that both the contracting out of work
and the termination of employment resulting therefrom
may be deemed "conditions" of employment.
In his concurring opinion, Justice Stewart pointed out
that a distinction might theoretically,be drawn between
imposing "conditions" on employment, on the one hand,
and the "more fundamental question whether there is to be
employment at all," on the other. He nonetheless effective-
ly conceded (379 U.S. at 222) that the law had irrevocably
moved toward requiring bargaining about those terms of
employment which affect job security and tenure of
employment, citing such' cases as N.L.RB, v. W.C.
Bachelder, Receiver for Hoosier Veneer Co., 120 F.2d' 574
(C.A. 7, 1942) (freedom from discriminatory, discharge);
termination of employees, as here, the employer should at the very least be
obligated to bargain about the consequences flowing from the decision-in
this case, the penalty for refusing to take the examination. ,
23 Some that come to mind are the validity and integrity of the testing
procedure; the breadth of the test questions; the qualifications of the
persons who devise and administer the test; the weight to be attached to
"failing" the test, and the consequences of failure, and the right of union
representatives or friends to be present during the administration of a
potentially frightening procedure alien to the experience of most employees.
MEDICENTER, MID-SOUTH ,HOSPITAL 677
N.L.R.B. v. Westinghouse Air Brake Co., 120 F.2d 1004
(C.A. 3, 1941) (seniority rights); and Inland Steel Company
v. N.L.R.B., 170 F.2d 247 (C.A. 7, 1948) (imposition of a
compulsory retirement age). It appears to follow ineluct-
ably that if an employer must bargain about the discharge
of employees, he is also "obligated to bargain about the
establishment of requirements which, if disobeyed, result in
discharge.24
Board precedent further compels the conclusion that the
promulgation of a new prerequisite of continued employ-
ment, with which an employee must comply or-sacrifice his
employment, is a "term" or "condition" of that employ-
ment which is subject to the bargaining obligation.
A decision squarely in point is Laney & Duke Storage
Warehouse Co., Inc., 151 NLRB 248 (1965) enfd. in
pertinent part, 369 F.2d 859 (C.A. 5, 1966). In the words of
the court of appeals (at 865-866; emphasis supplied):
On January 24, 1964, the company distributed to some
employees an `employment application' with instruc-
tions' to fill it out and return it. The four-page form
called for extensive personal data about the `applicant,'
of the nature generally required for personnel files of a
business. But it also required the `applicant' to agree to
take mental examinations or polygraph tests at the
company's request or resign upon refusal to do so, to agree
that his employment would be probationary for a
period of six months and if laid off that he would be
considered for reemployment only for a period of 60
days, and to agree to accept present and future policies,
rule's and regulations of the company including transfer
from one department to another at the direction of the
company. See LeRoy Machine Co., Inc., 147 NLRB
1431, 1438-39, holding a requirement that tardy and
absentee employees take physical examinations is a
condition,of employment.
As a matter of business judgment the company was
entitled unilaterally' to require information from pres-
ent employees but not by unilateral action to require
answers the giving of which' changed or affected
conditions of employment.
* * * * *
Since the application forms affected conditions of
employment, they were a legitimate subject of collec-
tive bargaining. The unilateral action of the company
relating thereto constituted a refusal to bargain ... .
In the case referred to above by the Fifth Circuit, LeRoy
Machine Co., Inc., 147 NLRB 1431 (1964), the employer
notified 19 of its 170 employees that their attendance
record was poor, and ordered them to undergo a physical
examination. Four employees who failed to comply were
24 -Compare Inland ,Steel Co , supra, at 252, speaking of the employer's
compulsory retirement program.
The Supreme Court, in National Licorice Co. v N.L.R,B, 309 U.S. 350,
360, 60 S Ct. 529, 84 L . Ed 799, held that collective bargaining extends
to matters involving discharge actions We are unable to
differentiate between the conceded right of a union to bargain
warned that continued noncompliance would result in
disciplinary action. The Board held that the "requirement
that employees with bad absentee records submit to a
physical examination by a physician of their choice at the
Respondent's expense,-subject to disciplinary action-if they
refused," was a mandatory subject of bargaining (147
NLRB at 1432). -
Other cases involving promulgation of plant rules, with
concomitant penalties for their breach, provide additional
support for this conclusion. -
In Coinmeco, Inc., 200 NLRB 294 (1972), the Board
stated:
The record shows that sometime in November 1971,
... Respondent Coinmeco put into effect a list of 30
rules, the violation of which subjected the offender to
discipline which could even result in discharge .... In
view of'the fact that, the Sheet Metal Workers was the
majority representative of Commeco's 'employees at
,that time, this unilateral activity on the, part of
, Coinmeco was in violation of Section,8(a)(5) and (1)r of
the Act.
In Tiidee Products, Inc., 176 NLRB 969 (1969), enfd. 440
F.2d 298 (C.A.D.C., 1970), the Board and court of appeals
affirmed a Trial Examiner's Decision holding (176 NLRB
at 976): "Nor is it necessary to determine which, if any, of
the rules constitute mandatory subjects of collective
bargaining. The fact that penalties were prescribed for
breaches' thereof sufficiently affected the conditions of
employment to make them mandatory subjects of bargain-
ing." In Murphy Diesel Company, 184 NLRB, 757 (1970),
enfd. 454 F.2d 303 (C.A. 7, 1971), the employer changed its
shop rules with regard to absences and tardiness, requiring
the submission of excuses on certain forms within 2 days
after the default and establishing a seven-step graduated
disciplinary system for recidivists. The Board adopted the
Trial Examiner's conclusion that the new requirements, all
of which exposed the employees to a jeopardy which had
not prevailed under the preexisting rules, "vitally affected
employee tenure and conditions generally" (184 NLRB at
763) and were therefore matters which were not subject to
unilateral employer control. Accord, Miller Brewing
Company, 166 NLRB 831 (1967), enfd. 408 F.2d 12 (C.A. 9,
1969); Donna Lee Sportswear, 174 NLRB 318, 337 (1969),
enfd. 435 F.2d' 559 (C.A. 3, 1971); General Electric
Company, 192 NLRB '68, 72 (1971), enfd. 466 F.2d 1177
(C.A. 6, 1972).
The foregoing cases, as well as the underlying' purposes
of Section 8(a)(5), indicate that the introduction of new
employment-related rules and requirements,- disobedience
to which may ' result in forfeiture of employment, are
bargainable "conditions" of employment within the pale of
Section 8(d). The required bargaining, furthermore, does
not comprehend merely the magnitude or propriety of-the
concerning a discharge, and particularly a nondiscriminatory dis-
charge, of an employee and its right to bargain concerning the age at
which he is compelled to retire In either case, the employee loses his
fob at the command of the employer, in either case, the effect upon the
'conditions' of the person's employment is that the employment is
terminated
678 DECISIONS-OF NATIONAL LABOR RELATIONS BOARD
penalty, but, as well, the content and incidents of the rule
giving rise to the penalty, for the simple reason that there
can be no intelligent or fruitful bargaining about the
sanction without the possibility of discussion, modification,
and -compromise regarding the rule which triggers the
sanction.
Nor does the fact that the examination was put into
effect to combat one sustained, eruption of vandalism
compel a different result 25 This "one-shot" characteristic
was also true in LeRoy Machine Co., Inc., supra, and it is
equally inherent in Fibreboard-type cases, where the
subcontracting is a one-time affair, resulting in termination
of a given number of employees and not necessarily
affecting the on-going working conditions of any other
employees.'
On the foregoing, analysis, I conclude that the adoption
by Respondent of a requirement that employees must
submit to a polygraph examination constituted a change in
their "conditions" of employment within the meaning of
Section 8(d), and was a mandatory subject of bargaining to
which the statutory obligations imposed by Section 8(a)(5)
adhered.
Turning, then, to the question whether Respondent, in
violation of Section 8(a)(5), failed to satisfy its statutory
bargaining obligation with respect to the institution of the
polygraph test, I conclude that, as Respondent, argues,
prevailing Board law requires a holding that it did not so
violate the Act.
The statute requires that an employer must afford the
bargaining representative of his employees an opportunity
to negotiate about a proposed change in' conditions of
employment , after which, if the employer is not persuaded
to abandon or modify his plan, he is free to put it into
effect. N.L.R.B.'v. Katz, 369 U.S. 736, 743 (1962);-Town &
Country Manufacturing Company, Inc. and Town and
Country,"Sales Company, Inc., 136 NLRB 1022, 1027 (1963),
enfd. 316 F.2d 846 (C.A. 5). At the threshold, however, I
must differ with that part of the General Counsel's
argument which' contends 'that "it is the duty of the
employer seeking to effect a change in working conditions
to notify the employees' bargaining representative of such
a proposal ...." While this appears to,be a sound and
optimally desirable requirement, the Board has adopted .a
more pragmatic approach in a number of cases and has
held that where a union had actual notice of an employer's
intentions at a time when there was sufficient opportunity
to bargain prior to implementation of'the change, the
employer may not be faulted for failing to afford formal
notification. , i
In U.S. Lingerie Corporation, 170 NLRB 750 (1968), the
evidence disclosed that the employer had actively dissem-
bled in treating with the union about, its plans to relocate,
but information of the proposed move nonetheless came to
25 The notice posted on July 29 intimates that the testing will be a
permanent feature of Respondent's personnel practice, using such phrases
as "The Mid-South Hospital is implementing a Security System within the
hospital complex" and "we are implementing a Polygraph Program as a step
in increasing internal security and protection of our present employees and
patients against unfair accusations ." Miles 'testified, however, that he was
authorized by Moms to employ the testingjust to meet the exigencies of the
July vandalism , and I believe his testimony. While the notice is addressed
the attention of the union. The full Board held (170 NLRB
at 751-752):
Although it is true _ that Respondent was less than
candid in answering questions from Union-representa-
tives and from employees as to whether the plant was
being closed or moved,' the foregoing evidence demon-
strates that, in fact, the Union had sufficient 'notice of
Respondent's intended move to place upon it the
burden of demanding bargaining if it wished to
preserve its rights to bargain about the decision to
move and the effect of such decision upon the
employees' terms and conditions of employment.
In Hartmann Luggage Company, 173 NLRB 1254 (1968),
the employer had announced to its employees on a
Thursday morning that certain employees would be laid
off effective the following Monday. At noon on Thursday,
just as in this case, an employee called the union business
agent and notified him of the layoff. The Trial Examiner's
Decision, adopted by the Board, stated (173 NLRB at
1255-1256):
I find that inasmuch as the Union actually received
notice of the proposed layoffs, Respondent's failure to
give formal notification directly to the Union under
these circumstances does not render ineffectual or
inoperative the notice actually received by it. While
only 4-1/226 days' notice was given prior to effecting
the layoffs, I find that in a matter so crucial as layoffs
such time was adequate to alert and afford the,Union
an, opportunity to protest and/or request consultation
in the matter.
Subsequently, in a case much like the instant one, the
Board affirmed a Trial Examiner who found, adequate
notice where, on April 28, the employer posted an
announcement to employees of new rules to take effect
May 1 and, by chance, the union representative was
handed a -copy of the notice while visiting the, employer's
office on April 28 about another matter. Holiday Inn
Central, 181 NLRB 997 (1970). Accord, Humble Oil &
Refining Co., 161 NLRB 714 (1966); Motoresearch Co., 138
NLRB 1490 (1962).
It is thus apparent that Respondent's failure to give
notice to the Union is not, in the current state of the law, in
and of itself a breach of the bargaining duty., The question
becomes, rather, whether the Union was afforded a
sufficient opportunity to bargain over the proposed testing.
The answer to this question, as to many other questions
arising under the Act, requires an examination of all the
attendant circumstances. The Board has held that on
receipt of adequate notice, the burden shifts to the union to
pursue the matter, if it wishes to do so. In American
Buslines, Inc., 164 NLRB 1055 (1967), the Board held
"To All Employees And Prospective Employees," I assume the intention
was to put any employees hired during the testing period on notice that they
would be subjected to the examination.
26 Since the union in Hartmann received notice at noon on Thursday of a
layoff to take effect Monday morning, it probably would have been more
accurate to say that the union had only 1-1/2 working days of prior
notification.
MEDICENTER, MID-SOUTH HOSPITAL 679
applicable to the unilateral action doctrine the language
used by the Supreme Court in a different context in the
early case of N.L.R.B. v. Columbian Enameling & Stamping
Co. 306 U.S. 292, 297, that "the statute does not compel
[the employer] to seek out his employees or request their
participation in negotiations for purposes of collective
bargaining . . . To put the employer in default here the
employees must at least have signified their desire to
negotiate." More recently, in Kentron of Hawaii, 214
NLRB No. 116 (1974), the Board cited and paraphrased
the American Buslines test as follows:
When an employer notifies a union of proposed
changes in terms and conditions of employment, it is
incumbent upon the union to act with due diligence in
requesting bargaining.
Furthermore, as the Board held in American Buslines, a
union which receives timely notice must take advantage of
that notice if it is to preserve its bargaining rights; in that
case, "the Union failed to prosecute its right to engage in
such discussion but contented itself by protesting the
contemplated promotions, in its letter dated February 10
and by subsequently filing a refusal-to-bargain charge"
(164 NLRB at 1056). Such a failure of prosecution
constitutes a waiver of a unions right to bargain.
The evidence in the instant case shows that Respondent
stood ready-indeed, in a meaningful sense, eager-to
bargain about the polygraph examination and that the
Union was content to do nothing but protest. In the- first
place, although at the hearing Miles was less than clear in
his own mind about when he made the "final" decision to
administer the test, I am convinced that, whatever that
elusive concept may comprehend, the decision did not
become "final" until the tests were actually given. It is my
firm impression that while Miles sincerely believed that the
acquittal of .Jackson and 'Williams on July 26 would give
aid, comfort, and encouragement to the saboteurs, provok-
ing even more widespread vandalism, he also harbored a
remote hope that the Union -might somehow render the
testing unnecessary.
I have no doubt that Miles finally determined to order
the testing with the most profound reluctance. He was
understandably concerned about the possibility of a mass
walkout of employees, and dubious about the reaction of
the Memphis medical community. He'also, and I think this
a not insubstantial factor, was embarking on a project
which would cost the,hospital nearly $6,000 to complete.
Considering these circumstances, plus the fact that Re-
spondent's agreement with the polygraph examiner was
based strictly on a fee of $35 , per administered test and
involved no other financial commitment, I feel certain that
at the time the notice and testing schedule were posted,
Respondent was fully prepared to bargain on the matter
with the Union and in no sense presented the Union with a
fait accompli.27
The Union, however,' showed no inclination to do
anything but object. I have found that when Fields visited
Miles on the morning of July 29, Fields indicated
vehement opposition to the testing, saying, among other
things, that the Union would never'agree to it. After Miles
invited discussion of an alternative ("Well, what else could
I do? I can't find out who, is doing the violence here") and
showed Fields some of the materials taken from the toilets,
Fields simply repeated his opposition and departed, saying
he would return on Wednesday morning.
The record shows that a polygraph program was in
existence at that time at St. Jude's Hospital in Memphis,
covering employees represented by Fields and the Union.
The program was the product of negotiations between St.
Jude's and the Union.28 Presumably, as a result of this
experience, Fields was not uninformed about the operation
of a polygraph examination and possessed some back
ground which would enable him intelligently to discuss the
subject.
He chose, however, to solicit no information about
Respondent's planned testing, to advance no reasoned
arguments against its implementation, and ,to proffer no
suggestions or comments about the manner in which the
program would be executed. He did not ask to meet again
later that day so that he might, in the interim, collect his
thoughts or formulate a counterproposal, nor, did he ask to
meet the following morning or afternoon for further
discussions which might better inform the Union about the
program or lead to a compromise. Fields simply voiced his
complete hostility to the program and left Miles' office 29
The events of Wednesday, July 31, indicated no change
of attitude by either party. The union representatives did
not even appear at the hospital until the time that the
testing was scheduled to commence. Miles temporarily
postponed the commencement of the testing in the hope
that some accommodation might be reached which would
obviate the need for the program.
Fields,agreed at the hearing that, during their discussion,
Miles appeared to be "looking for a way out." But again,
the union representatives did not intimate that they wished
to bargain, in the common acceptation of that word, about
the program. They made no inquiries about the nature of
the testing, about the questions to be put to employees, or
about any other relevant datum. Instead, they simply
expressed a total refusal to consider the possibility of
instituting the testing and asked for a delay, in Fields'
words, "so that we may orientate our people as to what a
polygraph test is . . . so we could talk to the people
involved." 30
27 Compare Southern California Stationers, 162 NLRB 1517, 1543 (1967),
where no violation was found because the "decision, though made, could be
rescinded." the union was fully "cognizant regarding the so-called decision's
then still executory character" and the announcement of the partial closure
could not "be found to have foreclosed negotiations", and International
Ladies' Garment Workers Union v N.LR.B., 463 F.2d 907, 919 (C.A.D C.,
1972) "Notice, to be effective, must be given sufficiently in advance of
actual implementation of a decision to allow reasonable scope for
bargaining."
28 According to Fields, the St Jude's program applied only to employees
who volunteered for it, and the volunteers were compensated therefor.
29 Under Fields' version of the meeting, he admittedly only "casually"
mentioned the polygraph test and then left, not to return until Wednesday
morning. Were I to credit him, I would still be left with the unavoidable
conclusion that the Union evinced no serious interest in engaging in true
collective bargaining about the matter.
so While, as noted, Miles testified that Adler asked for a week's delay,
saying "I'm sure we can work this thing out and then , after a week, if we
(Continued)
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I do not view the statutory bargaining duty as requiring
an employer to allot additional time for such a purpose.
Miles was nonetheless willing to consider granting a delay,
as all witnesses agreed, presumably in order to allow Fields
to familiarize the employees with the test, as requested, if
the Union would act as guarantor against vandalism, a
proposition which the Union found unacceptable.
I believe, in short, that Miles was as responsive to the
Union as the Union's demonstrated position required him
to be, and, as I understand the Board law, that is all that is
necessary.31 If the Union had truly wished to bargain on
the matter, a desire not evidenced in this record, it was
strangely sluggish in reacting to Respondent's proposed
countermeasure against what Miles conceived, and so
explained to Fields on the morning of July 29, to be a crisis
situation. The Union waited nearly 2 days after receiving
notice before it approached Miles again, and then arrived
at the moment the testing was set to begin. During that
period, it could have been formulating questions or
preparing counterproposals. However, at the second
meeting with Miles, as at the first, the Union made no
effort to either probe the mechanics or the implications of
the test, or to suggest alternatives-it simply reiterated its
unrelenting opposition to the testing, with Fields, as he
conceded, "saying a week wasn't going to work anything
out." 32, That unyielding resistance continued to manifest
itself thereafter, for although the testing was to be
conducted for a 6-day period, and a union sincerely
interested in bargaining about the program might well have
attempted to do so,even as it was in progress, the Union
never sought further consultation; it simply filed a charge.
I therefore conclude, upon' an appraisal of the particular
facts 'presented here in the light of controlling Board
doctrine, that the Respondent did not, in violation of
Section 8(a)(5), refuse to bargain about the implementation
of the polygraph program. In, so concluding, I should point
out that the Respondent's failure to provide ; the Union
with earlier notice of the testing is less than compatible
can't, then give your polygraph," he also credibly testified that Fields
immediately objected, saying, "We'd never agree to the polygraph
examination . Never under any circumstances would we agree to the
polygraph examination " Fields himself answered affirmatively on cross-
examination when asked, "Well, you opposed Mr Adler's suggestion that a
week was going to work anything out, and you were saying a week ,wasn't
going to work anything out?"
31 Triplex Oil Refining Division of,Pentalic Corporation, 194 NLRB 500
(1971) 4"As the Respondent fulfilled Its bargaining obligation by affording
the Union this opportunity, it cannot be faulted for the Union's failure to
present any demands ").
32 Compare U.S. lingerie Corporation, supra, 170 NLRB 750, 752 (1968)•
Further, it is apparent that a more formal notice from Respondent
about the planned removal of its operations would have been a futile
action in contributing to the likelihood of bargaining between
Respondent and the Union over these developments, for the Union's
with the collective-bargaining process envisioned by the
Act, and I think that, in another case,,the delay occasioned
by, the absence of such notice might well require finding a
violation.
Thus, if the lack of formal notice of an important
modification in conditions of employment resulted in a
union having only a few days' actual notice of the change,
and if the union, on becoming aware of the contemplated
change, promptly made an effort to bargain about the
matter, indicated a sincere desire to do so, particularized
the nature of its concerns, and reasonably pointed out a
need for additional time to engage in research and to
prepare and present questions, positions, or a counterpro-
posal, the statutory duty to refrain from unilateral action
would most, likely require the employer to grant an
additional appropriate amount of time for such prepara-
tion and consultation. That, however, as I have indicated
above, is not this case.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meamng of Section 2(6) and (7) of the Act.
2. Hotel & Restaurant Employees and Bartenders
International Union, Local 847, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in the unfair labor
practices alleged in the amended complaint.
Upon the basis of the foregoing findings and conclu-
sions, and upon the entire record in the case pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 33
It is hereby ordered that the amended complaint issued
herein against Respondent Medicenter , Mid-South - Hospi-
tal, Memphis, Tennessee , be,' and it hereby is, dismissed.
actions from the time it first received notice of Respondent's
withdrawal from multiemployer bargaining and thereafter demonstrat-
ed that it was insisting upon bargaining with Respondent only through
the Association . The intention of the Union was to enforce the
new contract and the Union was clearly not interested in bargaining
with Respondent on an individual basis.
See also EI DuPont DeNemours & Company, 189 NLRB 753, 754 (1971)
("In any event, it is apparent that the Union proposed only alternatives
which Respondent regarded as frivolous and that' the Union's position was
fixed, so that further discussion of these subjects would have been futile.")
33 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.