Alliance Rubber Co.

National Labor Relations Board - Board Decisions

Sep 30, 1987

286 N.L.R.B. 645 (N.L.R.B. 1987)

ALLIANCE RUBBER CO. 645
Alliance Rubber Company and UBC, Southern
Council of Industrial Workers , United Brother-
hood of Carpenters and Joiners of America,
AFL-CIO and Debra Luker
Western Security, Inc., and Robert A. Blankenship
d/b/a, W.C.S. Polygraph Division and UBC,
Southern Council of Industrial Workers , United
Brotherhood of Carpenters and Joiners of
America, AFIJ-CIO. Cases 26-CA-8480, 26-
CA-8717, 26-CA-8908, and 26-CA-8559
30 September 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 30 March 1982 Administrative Law Judge
Lawrence W. Cullen issued the attached decision.
Respondent Alliance Rubber Company (Alliance)
filed exceptions and a supporting brief, the General
Counsel and Respondent W.C.S. Polygraph Divi-
sion filed cross-exceptions and supporting briefs,
and answering briefs were filed by Respondent Al-
liance and the Charging Party Union.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge' s rulings,' findings, 2
and conclusions as modified3 and to adopt the rec-
ommended Order as modified below.
1. We agree with the judge's finding that poly-
graph examiners Jack Jackson and Robert Blanken-
ship acted as agents of Respondent Alliance when,
in the course of conducting polygraph examina-
tions of Alliance's employees on 23 and 30 April
I Respondent Alliance has excepted to the judge's rulings revoking its
subpoenas and denying its motions to strike the complaint , for a bill of
particulars, and for production of exculpatory matters We affirm the
judge's rulings as the record satisfies us that all relevant matters were dis-
closed during trial and as Respondent Alliance has not demonstrated in
its exceptions that it has been prejudiced by the judge's rulings
2 Respondent Alliance and the General Counsel have excepted to some
of the judge's credibility findings The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd
188 F 2d 362 (3d Cir 1951) We have carefully examined the record and
find no basis for reversing the findings
8 In accordance with West Coast Casket Co, 192 NLRB 624 at 640
(1971), we shall substitute the following f'or sec III of the judge 's deci-
sion.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Alliance and Blankenship, as set forth in section
II, above, in connection with the business of Alliance Rubber Com-
pany, as set forth in section I, above, have a close, intimate , and sub-
stantial relationship to trade, traffic, and commerce among the sever-
al States and tend to lead to labor disputes burdening and obstruct-
ing the free flow of commerce
and 1 May 1980, they asked the employees ques-
tions about their own and others' union activities.
We apply common law principles of agency in
making this determination. Thus, we agree with
our dissenting colleague that Jackson and Blanken-
ship were not general agents of Respondent Alli-
ance . We find, however, contrary to the dissent,
that each was a special or limited purpose agent,
i.e., "an agent authorized to conduct a single trans-
action or series of transactions not involving conti-
nuity of service." Restatement 2d, Agency, § 3(2)
(1958), cited in Davlan Engineering, 283 NLRB 803
(1987). The transactions in question here were
polygraph examinations of Respondent Alliance's
employees and supervisors initiated in response to
suspected sabotage and drug usage in the plant.
Our colleague misapplies agency principles when
he suggests that in order to attribute responsibility
to Respondent Alliance for the polygraph examin-
er's questions about union activity, we must find
evidence that Respondent Alliance's vice president,
Richard Spencer, or some other admitted general
agent had specifically authorized such questions in
advance or had been expressly advised that such
questions would be asked.
First, even though Jackson and Blankenship
were merely agents for the limited purpose of ad-
ministering polygraph examinations to Respondent
Alliance's employees, we would find that, in asking
the questions about union activities, Jackson and
Blankenship were acting within the general scope
of the actual authority conferred on them to con-
duct those examinations. Although Vice President
Spencer testified that he gave them lists of ques-
tions to ask (not including any about unions), he
also testified that Blankenship had indicated that he
would add his "own . . . reactive or control ques-
tions." Spencer did not claim that he had asked
Blankenship what these might be or had warned
either him or Jackson against asking questions
about unions. Since Blankenship testified that it
was his "normal" practice to ask questions about
union activity in connection with drug or sabotage
investigations-and there is no evidence that Spen-
cer asked him to depart from any of his standard
procedures-he would appear to have acted gener-
ally within the latitude allowed. This would hold
true even were we to reverse the judge's discredit-
ing of Spencer's testimony that he and Blankenship
did not discuss Spencer's knowledge of, and con-
cerns about, the recently initiated union campaign
prior to Blankenship' s questioning of the employ-
ees.
The evidence here presents a stronger case for
action within the general scope of authority to con-
duct the transactions in question than the incident
286 NLRB No. 57
646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
at issue in Batavia Nursing Inn, 275 NLRB 886 fn.
2 (1985). There the attorney whom the respondent
had engaged to represent it in legal matters pertain-
ing to a representation case assaulted a union orga-
nizer in the presence of employees following a
Board election. The Board found that "the attor-
ney's actions were within the general scope of his
agency authority, even though the Respondent
may not have authorized the specific acts in ques-
tion ." Id. We similarly hold that, under the circum-
stances here, the questions about union activity
were within the general scope of the authority that
Respondent Alliance granted the examiners to
question its employees.
Second, we also rest our agency finding on the
doctrine of apparent authority. Under this concept,
an individual will be held responsible for actions of
his agent when he knows or "should know" that
his conduct in relation to the agent is likely to
cause third parties to believe that the agent has au-
thority to act for him. Restatement 2d, Agency § 27.
Here Spencer's own conduct reasonably led em-
ployees to believe that questions asked by Jackson
and Blankenship in the course of the polygraph ex-
aminations were asked on behalf of Respondent Al-
liance.4 Employees were instructed by Respondent
Alliance's managers or supervisors to go to a build-
ing at the rear of the plant on Respondent Alli-
ance's premises and submit to the examination
unless they objected. (The examinations were "vol-
untary.") Vice President Spencer spoke to a
number of them before they entered the polygraph
room, and the judge credited two employees' testi-
mony that in telling them that the examinations
were aimed at uncovering information about possi-
ble sabotage in the plant, Spencer expressed the
view that the Union might be connected. Even
without that credited testimony, however, employ-
ees would reasonably have believed that the exam-
iners were authorized to ask the questions they
asked of the employees.5
In thus finding that, to the extent Jackson's and
Blankenship's questions about union activity would
reasonably tend to interfere with employees' Sec-
4 We agree with our dissenting colleague that there must be some man-
ifestation by the principal to the third parties that supplies a reasonable
basis for believing that the principal authorized the agent to do the acts
in question . The directions given the employees concerning the examina-
tions and the conduct of Spencer detailed below constitute the manifesta-
tions by the principal that the polygraph examiners had the authority to
ask all the questions they were asking.
5 It is also noteworthy that Respondent Alliance was on notice
through at least one of its own supervisors that questions about the Union
might be asked Thus credited testimony shows that Supervisor Bill
Walker, who had himself been questioned by polygraph examiner Jack-
son on April 23, encountered employee Lurene Burns after she had been
questioned and inquired if she had been asked "anything about the
Union ." She told him she had and recounted what she had told the exam-
iner
tion 7 activities, Respondent Alliance, as well as
Respondent Blankenship, violated Section 8(a)(1)
of the Act, we act well within the precedents for
imputing coercive conduct to a union or employer
on the basis of the doctrine of apparent authority.
Rapid Mfg. Co., 239 NLRB 465, 472 (1978) (hold-
ing employer responsible for questions about em-
ployees' union sympathies asked by insurance agent
seeking to enroll them in employer's insurance pro-
gram). See also NLRB v. Southwire Co., 801 F.2d
1252, 1254 (11th Cir. 1986) (imputing to employer
the unlawful restrictions on union solicitation en-
forced by plant guards provided by security firm
even though guards misstated employer's policy);
Cagle's Inc. v. NLRB, 588 F.2d 943, 946-948 (5th
Cir. 1979), enfg. 234 NLRB 1148 (1978) (imputing
to employer a town official 's inducements to em-
ployees to repudiate their collective-bargaining rep-
resentative and form their own union); Davlan En-
gineering, supra (attributing card solicitors' unlaw-
ful fee waiver statements to the union in the ab-
sence of any evidence that the union asked the so-
licitors to make such statements or knew that they
were making them).
Finally, there is little question that the interroga-
tions by Jackson and Blankenship meet the coer-
cion test of Rossmore House, 269 NLRB 1176
(1984), affd. sub nom. Hotel & Restaurant Employ-
ees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir.
1985). Thus, the employees were each isolated in a
room with the examiner, hooked up to equipment
measuring their physical reactions, and asked such
questions as whether they had engaged in union ac-
tivities, whether others had, whether they were
aware of union meetings, and-in a number of
cases-whether they knew more about the Union
than they were telling the examiner. The question-
ing was made even more stressful by the connec-
tion with the investigation into alleged drug usage
and sabotage. An implicit message of the examina-
tions was that engaging in union activity might
bring one into suspicion of being somehow con-
nected with unlawful activity at the plant. Such
questioning would plainly tend to chill the organiz-
ing activity that had recently started up there.6
6 We also apply the Rossmore House test in affirming other interroga-
tion findings of the judge We find merit to Respondent Alliance 's excep-
tions with respect to two incidents, however
The judge found that about 30 April Foreman Bill Walker mentioned
to employee Robert Walker that Robert knew how Vice President Spen-
cer felt about what was going on and advised Robert "to leave it as it
is" Robert admitted that the foreman did not use the word union (or
mention the name of the Union) in this conversation The judge, never-
theless, found from the context that the foreman was referring to the
Union (as what was going on) and concluded that he threatened Robert
in violation of Sec 8(a)(1) As the statement could also have been in ref-
erence to sabotage or drug usage at the plant, we find the foreman's
Continued
ALLIANCE RUBBER CO. 647
2. Contrary to our dissenting colleague, we find
ample evidence from which to infer, as the judge
did, that the 7 May layoff of 15 employees, al-
though based in part on economic reasons, was dis-
criminatory in its timing and in the selection of em-
ployees. Although there was evidence of reasons
for cutting back, there was no convincing nondis-
criminatory reason advanced for the particular day
chosen. (It is also noteworthy that Respondent Al-
liance had hired two new employees during the
previous month.) As the judge found, the layoff oc-
curred the day after polygraph examiner Blanken-
ship returned to the plant to complete the poly-
graph examinations . The judge discredited Spen-
cer's and Blankenship's denials that they had not
discussed the employees' union activities either
before Blankenship commenced the examinations
on 30 April or after he completed them on 6 May.7
With respect to the selection of employees, our
colleague does not dispute the judge's finding that
the employees selected for layoff were, by and
large, experienced workers with good work
records and that 11 out of the 15 had either been
identified to management as supporters of the
Union or had declined to answer questions about
the Union during the polygraph examination.
While we agree with our dissenting colleague that
refusing to answer such questions does not neces-
sarily reveal that the employee supports the Union,
it certainly marks the employee; as someone unwill-
ing to cooperate in Respondent Alliance's endeavor
to find out who the supporters were. Employee
Atkins, for example, admitted to Blankenship that
he had heard about union activity in the plant but
refused to identify who, if anyone, he had heard
statement was ambiguous and therefore insufficient to warrant the finding
of a violation
Chairman Dotson and Member Stephens similarly find no violation of
Sec 8(a)(1) on the basis of Supervisor Bill Walker's question to employee
Burris concerning whether the polygraph examiner had asked her about
union activity (see fn 4, above) Although Burris told Walker about her
union activities , Walker 's single question merely concerned what the
polygraph examiner had asked and was not framed to elicit information
about Burris' union activities or those of any other employees Member
Johansen finds it unnecessary to pass on whether this question violated
the Act as the judge's finding was cumulative and does not affect the
remedy or the Order
° We see no reason for overturning those credibility resolutions As the
judge noted , there was ample evidence that the existence of a union cam-
paign in the plant was known to Respondent Alliance's management
before Blankenship began questioning the employees individually , the Re-
spondent had begun taking steps through threats and interrogations to
thwart the campaign , Blankenship admitted that asking questions about
union activity was part of his "normal "procedure , Spencer was working
in a room "adjacent" to the room in which Blankenship conducted the
polygraph examinations, and Blankenship conceded speaking with Spen-
cer when he left the plant on 6 May , although he claimed that it was
simply a brief conversation in which he told Spencer only that the plant
had a "drug problem " Given all the circumstances , the judge could rea-
sonably conclude that, at least before he left the plant on 6 May, Blan-
kenship had apprised Spencer of the fruits of his extensive questioning
about employee union activity
talking about the Union. It is hardly implausible
that Respondent Alliance's union animus would
have induced it to rid itself not only of the Union's
advocates but also of those disposed to keep Re-
spondent Alliance from ferreting out the advocates'
identities.
The judge also reasonably pointed to the uncon-
vincing character of Respondent Alliance's expla-
nation for why it selected the employees it did.
Vice President Spencer said he made the selections
on his own, based on personnel records and his
memory of comments that supervisors had made
about various employees in the past. He testified
that he consulted neither the supervisors nor the
personnel manager before deciding whom to lay
off. Also, as the judge noted, Spencer was unable
in his testimony to identify specific reasons for se-
lecting any 1 of the 15. Spencer's testimony was
further rendered suspect by the conflict between
his claim that the layoffs were intended to be only
temporary and the evidence that new inexperi-
enced employees were hired before any laid-off
employee was recalled and that none of the 15 was
recalled until after unfair labor practice charges
were filed.
It is true that the layoff included four employees
who had not signed cards or otherwise been identi-
fied to Respondent Alliance as either union sup-
porters or the protectors of union supporters and it
is true that two employees who had signed cards
(Ilene Hamilton and Debra Whittaker) escaped the
housecleaning. But where, as here/here is power-
ful evidence of union animus, and where the expla-
nations given for the timing and selection criteria
are not credible, the fact that a few employees who
had not supported the Union were expelled along
with those who had and that one or two union sup-
porters remained does not preclude the finding that
discriminatory motives lay behind the timing and
selection. Certainly Respondent Alliance could rea-
sonably believe that the sudden enforced departure
of 11 out of 13 union supporters or fellow travelers
would be likely to put the brakes on an organizing
campaign. See Majestic Molded Products v. NLRB,
330 F.2d 603, 606 (2d Cir. 1964).
In sum , we find that the General Counsel has
proved by a preponderance of the evidence that, at
least in its timing and selection of employees, the 7
May layoff violated Section 8(a)(3) and (1) of the
Act.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondents, Alliance Rubber Company, Hot
648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Springs, Arkansas, and Robert A. Blankenship,
d/b/a W.C.S. Polygraph Division, Little Rock, Ar-
kansas, their officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.8
1. Add the following as paragraph A, l (b) and re-
number the subsequent paragraphs.
"(b) Using the services of an agency which ad-
ministers lie detector tests to interrogate employees
concerning their union activities or sympathies or
the union activities of other employees."
2. Substitute the attached notice marked "Appen-
dix A" for that of the administrative law judge.
CHAIRMAN DOTSON, dissenting in part.
I agree with my colleagues and the judge that
the Respondent, Alliance Rubber Company, violat-
ed Section 8(a)(3) and (1) of the Act by discharg-
ing employees Gary Crosley, Barbara Rains, and
Debra Luker for their union activities and further
agree that the Respondent engaged in other con-
duct violative of Section 8(a)(1) of the Act.' How-
ever, I do not agree with their finding that poly-
graph examiners Jack Jackson and Robert Blanken-
ship were acting as agents of the Respondent when
they questioned employees about their union activi-
ties, nor do I agree with their finding that the Re-
spondent 's 7 May 19802 layoff of employees violat-
ed Section 8(a)(3) and (1) of the Act.
On the agency issue , the record reveals that
during the week of 7 April, Jackson was contract-
ed by Spencer to conduct polygraph tests of em-
ployees, including himself, as part of an investiga-
tion into a $9000 accounting discrepancy discov-
ered at the Respondent's Hot Springs, Arkansas fa-
8 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be
computed at the "short-term Federal rate " for the underpayment of taxes
as set out in the 1986 amendment to 26 U S C. § 6621 Interest on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 U S.C. § 6621) shall be computed in accordance with
Florida Steel Corp., 231 NLRB 651 (1977).
1 I also join my colleagues in finding , contrary to the judge, that Su-
pervisor Bill Walker's comment to employee Robert Walker-"to leave it
as it is"-is too ambiguous to constitute a threat within the meaning of
Sec. 8(a)(1) of the Act and agree with Member Stephens that Bill Walk-
er's question to employee Burris, following her polygraph test, as to
whether she had been asked about the Union was not coercive of Burns'
Sec. 7 rights However, unlike my colleagues and the judge, I find that
the Respondent did not violate Sec . 8(axl) when, in response to Luker's
unsolicited statement that she and her husband had been asked by the
Union to testify at the unfair labor practice hearing and that she had been
told that the layoff of employees was caused by their union activities, the
Respondent 's vice president , Richard Spencer, replied that he appreciated
the information and that Luker should let him know if she heard any-
thing else. Clearly , the unsolicited information provided by Luker to
Spencer pertained to the Union 's litigation posture at the upcoming hear-
ing and not to any organizing activity Spencer's remark thus constitutes
nothing more than an expression of his appreciation to Luker for her un-
solicited information pertaining to legal matters and his interest in obtain-
ing information of similar nature, wholly unrelated to any organizational
activity its employees or the Union may have engaged in
2 All dates are in 1980 , unless otherwise indicated
cility. The following week, Jackson was again
called by Spencer to conduct further polygraph
tests because of several incidents of sabotage to
production machinery. During his interviews, Jack-
son asked employee Rogul-Moessinger questions
about unions.3 However, in his report to Spencer,
Jackson made no mention of the union-related
questions he had asked or of the employees' re-
sponses to those questions.
In late April, Spencer contracted with Blanken-
ship to investigate further acts of sabotage at the
Hot Springs facility. During the examinations,
Blankenship asked several employees questions
about the Union. Some employees admitted to
Blankenship that they were aware of the Union or
that they had signed authorization cards, and, in
some instances, either implicated themselves or
others as being actively engaged in union matters.
The judge found, and my colleagues agree, that
Jackson and Blankenship were agents of the Re-
spondent within the meaning of Section 2(13) of
the Act, and that the Respondent is, therefore,
liable under Section 8(a)(1) for their unlawful con-
duct. In support of their agency finding my col-
leagues and the judge infer that the Respondent
knew of, and thereby implicity authorized, Jack-
son's and Blankenship's questioning of employees
concerning their union activities. The record does
not support their finding.
Section 2(13) of the Act states that "[i]n deter-
mining whether any person is acting as an `agent'
of another person so as to make such other person
responsible for his acts, the question of whether the
specific acts were actually authorized or subse-
quently ratified shall not be controlling." Rather,
the question of an employer's liability under the
Act for the conduct of another is, under Board
law, determined in accordance with the principles
of the law of agency.4 "The crucial and determin-
ing factor in the establishment of an agency rela-
tionship . . . concerns the authority of the alleged
agent to act as an agent in a given manner for the
alleged principal."5 The burden of proving that an
8 Some supervisory personnel were also asked union -related questions
4 Sunset Line & Twine Co, 79 NLRB 1487 (1948), Westward Ho Hotel,
251 NLRB 1199 ( 1980).
6 Westward Ho Hotel, supra at 1207 An agency is defined as "the fidu-
ciary relation which results from the mamfestation [sic] of consent by one
person to another that the other shall act on his behalf and subject to his
control, and consent by the other so to act " Restatement 2d, Agency § I
The liability of the principal for the acts of his agent will, in large meas-
ure, depend on the nature or type or agency that is created A general
agent, for example- is authorized to conduct a series of transactions in-
volving a continuity of service-will subject a principal to liability for all
conduct, whether authorized or not authorized . A special agent, howev-
er-one who is authorized only to do some particular act or to act on
some particular occasion-has no power to bind the principal for unau-
thorized acts On the other hand, an independent contractor, unlike an
Continued
ALLIANCE RUBBER CO. 649
agency relationship exists, as well as the nature and
extent of the agent's authority, rests with the
person asserting the relationship, 6 in this case the
General Counsel. The latter, however, produced
no evidence at the hearing in support of an agency
finding and, in my view, has not sustained her
burden of proof. In fact, the funding of an agency
relationship in this case is premised not on any
record evidence but rather on inferences and as-
sumptions that are purely speculative and devoid of
any evidentiary support.
With respect to Jackson, who did not testify at
the hearing , the record , as noted, indicates only
that he was retained on a contractual basis initially
to inquire into a possible allegation of theft, and
subsequently into alleged acts of sabotage to the
Respondent's production equipment. Although he
may have inquired into Rogul-Moessinger 's views
concerning unions, there is nothing in the record to
suggest that he had authority from Spencer, or any
other management representative, to delve into
such matters. Nor is there any evidence to show
that Spencer knew that Jackson had questioned
Rogul-Moessinger, or any other employee, con-
cerning union matters for, as previously stated,
Jackson did not inform the Respondent of the
union-related questions , nor did he make the re-
sponses to those questions available to the Re-
spondent.
Despite the lack of evidence, my colleagues and
the judge nevertheless find that Jackson was an
agent of the Respondent. In this regard, they infer
that the Respondent must have known of, and
thereby implicitly authorized, Jackson's interroga-
tion of Rogul-Moessinger because its own supervi-
sors had previously engaged in similar conduct and
because the Respondent "presented no evidence of
any business justification for the interrogation." As
to the latter reason , the burden of proving the
agency relationship is, as stated , on the General
Counsel, and the failure of the Respondent to come
forth with a business justification for Jackson's al-
leged misconduct does not relieve the General
Counsel of that burden.? Nor is there any rational
basis for assuming , from the mere fact its supervi-
sors had engaged in unlawful conduct, that the Re-
spondent had expressly or impliedly authorized
Jackson to engage in similar conduct . In light of
agent, will generally not subject an employer to liability for unathorized
acts The independent contractor is defined as one who exercises some
independent calling, occupation, or employment, in the course of which
he undertakes , supplying his own materials and equipment, to accomplish
a certain result , not being subject while doing so to the direction and
control of his employer , but being responsible to his employer for the end
to be achieved , and not for the means by which he accomplishes it
Mechem , Outlines of Agency § 20 (3d ed)
6 Sunset Line & Twine Co, supra at 1506.
7 Id
the above facts I find, contrary to my colleagues
and the judge, that Jackson was not an agent of the
Respondent and that the latter is not responsible
for any unlawful interrogations Jackson may have
committed.
Like Jackson, the record with respect to Blan-
kenship is similarly devoid of any evidence to indi-
cate that he was acting as agent for the Respond-
ent. As stated, Blankenship was retained by Spen-
cer to look into acts of sabotage and was paid a flat
fee for each polygraph test administered. Although
he, too, made inquiries into employee union activi-
ty during the course of his examinations, there is
no evidence to indicate that he had been granted
authority to do so as part of his sabotage investiga-
tion. Nor is there any evidence in the record to
show that Blankenship had even been apprised be-
forehand, by the Respondent, of its employees' in-
volvement in union matters.8 Indeed, the record
suggests that Blankenship's decision to question
employees about their union activities may have
been triggered by employee responses to other
questions, rather than any prior knowledge of such
activities.9 His decision therefore to pursue this line
of inquiry is not inconsistent with his contractual
objective of trying to identify the saboteurs. The
fact that his inquiry was conducted in a vigorous
manner can hardly be viewed as evidence of the
Respondent's prior approval of such conduct, as
suggested by the judge. Nor is the fact that Spen-
cer knew of the organizing campaign before the
tests were administered sufficient to establish that
Blankenship had express or implied authority from
the Respondent to question employees on matters
unrelated to the acts of sabotage. Under these cir-
cumstances, I find that the General Counsel has
not met her burden of showing that Blankenship
was an agent of the Respondent" and, according-
8 Although the judge, for the most part, credited Spencer 's testimony
in this case because it was undisputed and corroborated, he did not credit
Spencer's testimony that he instructed Blankenship to inquire only into
the sabotage matter and did not inform Blankenship of the union activi-
ties engaged in by employees . The judge's credibility determination con-
cerning this aspect of Spencer's testimony is, in my view, not entitled to
any weight . The record clearly shows that Spencer 's testimony in this
regard , like his other credited testimony, was not disputed by any other
witness and , further, was corroborated by Blankenship , who was called
to testify by, and on behalf of, the General Counsel Further, as evident
from his decision , the judge's credibility determination was based not on
his observation of Spencer 's demeanor while on the witness stand, but
rather on the judge's personal assessment of the logical probabilities aris-
ing from other testimony The Board is not bound by credibility resolu-
tions which are based on such assessments Kelco Roofing, 268 NLRB 456
(1983)
The fact that Blankenship questioned some, and not all, employees
about their union activities lends support to the inference that he pursued
this line of questioning only after information pertaining to the Union had
been obtained from employee responses to other questions
10 Indeed , the record strongly suggests that Blankenship was an inde-
pendent contractor , rather than an agent of the Respondent Thus, he re-
Continued
650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ly, do not find the Respondent liable under Section
8(a)(1) for any misconduct engaged in by Blanken-
ship. I I
I also find, contrary to my colleagues and the
judge, that the Respondent's 7 May layoff was not
discriminatorily motivated. Their finding that the
layoff was discriminatory is based on the Respond-
ent's union animus , as demonstrated by its unlawful
threats and interrogations, and the fact that 11 of
the 15 employees selected for layoff either were
identified as union supporters or had refused to
answer questions about the Union during their
polygraph tests. Although the judge found, and my
ceived a flat fee for each polygraph test he administered and presumably
furnished his own equipment for the testing While Spencer provided him
with a list of suggested questions to guide him , none of which, incidental-
ly, related to union matters, Spencer did not attempt to establish any con-
trol over the manner in which the tests were to be administered Further,
he made it clear to employees who volunteered to take the polygraph
test that Blankenship was not associated with the Respondent Blanken-
ship 's independence from the Respondent is underscored by the fact that
he revised many of the questions to him by Spencer and even substituted
some of his own As an independent contractor , Blankenship 's miscon-
duct would clearly not be attributable to the Respondent
Lacking any real evidence to sustain an agency finding and in an effort
to bolster their rather tenuous position , the majority feels compelled to
draw a negative inference from what they perceive as Spencer's failure to
ask Blankenship what type of "reactive" or "control" questions he in-
tended to use and his purported failure to warn either Blankenship or
Jackson against asking union-related questions Initially, it should be
noted that the record fails to establish whether Spencer did or did not
make inquiries of Blankenship concerning the types of questions he
would ask or whether he did or did not warn both polygraph examiners
against questioning employees about their union activities Consequently,
there is no basis for drawing such a negative inference Further, the ma-
jority ignores the fact that the burden of proof is on the General Counsel
to prove the existence of an agency relationship and not on the Respond-
ent to prove that one does not exist . Thus, it was for the General Counsel
to show whether Spencer did question Blankenship concerning the types
of questions he would use and to show whether he did or did not warn
the examiners against interrogating employees about their union activities
i 1 Contrary to the majority, there is no basis in the record for finding
that the Respondent cloaked Jackson and Blankenship with the apparent
authority to interrogate employees about their union activities Apparent
authority to do an act is, under agency law, created through some mani-
festation by the principal (here, the Respondent) to a third party (an em-
ployee) which reasonably causes the third party to believe that the prin-
cipal consents to have the act done on his behalf by another person (the
polygraph examiners) purporting to act for him Restatement 2d, Agency
§§ 8, 27 Two conditions , therefore, must be satisfied before apparent au-
thority is deemed created ( 1) there must be some manifestation by the
principal to a third party , and (2) the third party must believe that the
extent of the authority granted to the agent encompasses the contemplat-
ed activity Id § 8 Here the General Counsel who , as noted , bears the
burden of proving the nature and type of authority created , produced no
evidence showing that the employees were informed by the Respondent,
through words or conduct , that the polygraph examiners were authorized
to question them about their union activities The record reveals only
that the employees were told that the purpose of the polygraph examina-
tions was to investigate acts of sabotage . The statements made by Spen-
cer to the two employees prior to their submitting to the polygraph tests
cannot be construed as a grant of apparent authority
Rapid Mfg. Co, 239 NLRB 465 (1978), Cagle's Inc, 234 NLRB 1148
(1978), and other cases cited by the majority are factually distinguishable
from the instant case and do not support their view that the polygraph
examiners possessed , at least , apparent authority to act as agents for the
Respondent Even assuming , arguendo , that Jackson and Blankenship had
been agents of the Respondent , they were at most special , rather than
general , agents. As such the Respondent would not be liable under Sec
8(a)(1) for their unlawful interrogations inasmuch as they lacked the real
or apparent authority to engage in such conduct
colleagues agreed, that the layoff was instituted for
valid economic reasons, they nevertheless conclude
that the layoff occurred 1 day after the completion
of the polygraph tests so as to enable the Respond-
ent to identify the union supporters and fulfill its
desire to stem the Union's organizational campaign
by ridding itself of those supporters. They also find
that the Respondent's selection of prounion em-
ployees for layoff rendered the layoff discriminato-
ry notwithstanding that it was motivated purely by
economic considerations. Like their agency finding,
my colleagues' finding in this respect is likewise
not supported by the record evidence.
Thus, there is no basis in the record for finding
that Spencer, or any other management representa-
tive, was privy to the polygraph test results prior
to the layoff. Indeed, even assuming, arguendo,
that the Respondent may have obtained this infor-
mation, the evidence, including the polygraph
questions and answers, establishes the prounion
identity of only 7 of the 15 employees selected for
layoff.12 The record evidence does not readily
identify any of the remaining nine employees as
prounion, although some undoubtedly were. Em-
ployees Hight, Hullinger, and Ratliff, for example,
did not testify at the hearing and neither they nor
employee Robertson was shown to be a card signer
or revealed as having any connection with the
Union during their polygraph test. Employees
Atkins, Carter, and Healy allegedly executed au-
thorization cards which were not properly authen-
ticated because of questionable signatures or dates.
More importantly, none of these three admitted
during their polygraph tests that they had signed
cards. Contrary to my colleagues and the judge, an
employee's denial or refusal to answer questions
concerning the Union does not constitute evidence
of that employee's prounion identity. In fact,
Rogul-Moessinger's testimony reveals that she did
not become an active union supporter until after
the layoff and that she did not reveal any pro- or
antiunion sentiments in her interview with Blanken-
ship. Finally, as noted by the judge in his decision,
neither employee Hamilton nor employee Whi-
taker, both union supporters, was selected for
layoff. In these circumstances, I find that the evi-
dence is insufficient to support a pattern of dis-
criminatory selection for layoff based on discerna-
12 The 15 employees selected for layoff were Atkins, Burris, Carter,
Healey, Hight, Hullinger, Martin, Oaks, Phillips, Ratliff, Robertson,
Rogul-Moessinger , Sullivan, Walker, and Washington . Of these, only
Oaks, Phillips, Washington, Burns, Martin, Sullivan, and Walker had
been clearly identified as prounion based on their admission that they
signed authorization cards or on information obtained during the poly-
graph examinations
ALLIANCE RUBBER CO.
ble union sympathies, and would dismiss the 8(a)(3)
allegations of the complaint.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT issue written warnings, discharge,
refuse to reinstate or reemploy, or in any other
manner discriminate against employees because of
their union activities.
WE WILL NOT use the services of an agency
which administers lie detector tests to interrogate
employees concerning their union activities or sym-
pathies, or the union activities of other employees.
WE WILL NOT threaten employees with loss of
their jobs or other reprisals because of their union
activities, membership, or support.
WE WILL NOT coercively interrogate employees
concerning their union membership„ activities, or
support and that of other employees.
WE WILL NOT discourage membership in or ac-
tivities on behalf of UBC, Southern Council of In-
dustrial Workers, United Brotherhood of Carpen-
ters and Joiners of America, AFL-CIO, or any
other labor organization by discharging employees
or discriminating against them in their hire and
tenure.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer employees Jerry Atkins, Lurene
Burris , Johnny Carter, Gary Crosley, John Healey,
Hazel Hight, Kevin Hullinger, Debra Luker, Rosie
Martin, Michael Oaks, Clara Phillips, Barbara
Rains , Judy Ratliff, Steven Robertson, Debra
(Rogul) Moessinger, Louise Sullivan, Robert
Walker, and Alberta Washington immediate and
full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent po-
651
sitions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make whole the employees named
above for any loss of pay or other benefits sus-
tained by them by reason of our discrimination
against them, with interest on any moneys due
them.
WE WILL withdraw the written warning issued
to Barbara Rains and correct her personnel record.
ALLIANCE RUBBER COMPANY
William Levy, Esq., for the General Counsel
R. Eddie Wayland and Robert L. Ballow, Esq. (King,
Ballow, & Little), of Nashville, Tennessee, for Re-
spondent Alliance Rubber Company.
Robert D. Cabe, Esq. (Allen, Cabe & Lester), of Little
Rock, Arkansas, for Respondents Western Security
Inc., and Robert A. Blakenship d/b/a W.C.S. Poly-
graph Division.
Kathy L. Krieger, Esq., of Washington, D.C., for the
Charging Party.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge.
This consolidated case was heard before me in Hot
Springs, Arkansas, on January 26, March 23-27, and
April 27-30, 1981, on a second amended consilidated
complaint and notice of hearing issued December 30,
1980, by the Acting Regional Director for Region 26, as
amended at the trial, and arises from charges filed by
UCB, Southern Council of Industrial Workers, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO (the Union) alleging that Respondent Alliance
Rubber Company (Alliance) had violated Section 8(a)(1)
and (3) of the National Labor Relations Act (the Act)
and that Respondent Western Security, Inc. (Western)
and Respondent Robert A. Blankenship, d/b/a W.C.S.
Polygraph Division (Blankenship) had violated Section
8(a)(1) of the Act, and from a charge filed by Debra
Luker, and individual , alleging a violation of Section
8(a)(1) and (3) of the Act by Respondent Alliance
Rubber Company. i The complaint is joined by Respond-
ent Alliance Rubber Company's answer filed January
1981, as amended at the hearing, where it denied the
commission of any violations of the Act and by the sepa-
i The charge in Case 26-CA-8480 was filed by the Union on June 11,
1980, amended on July 21, 1980, and alleges violations of Sec 8(axl) and
(3) of the Act were committed by the Employer The charge in Case 26-
CA-8559 was filed by the Union against Robert A Blankenship, d/b/a
W C S Polygraph Division on July 30, 1980, and amended on August 21,
1980, to include Western Security , Inc, and alleges violations of Sec
8(a)(1) of the Act against Robert A Blankenship d/b/a W C S. Poly-
graph Division and Western Security, Inc The charge in Case 26-CA-
8717 was filed by the Union on November 3, 1980, and alleges violations
of Sec 8(a)(1) and (3) of the Act were committed by the Employer. The
charge in Case 26-CA-8908 was filed on February 20, 1981, by Debra
Luker, an individual, and alleges violations of Sec 8(a)(1) and (3) of the
Act were committed by the Employer
652 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rate answer of Respondent Robert A. Blankenship d/b/a
W.C.S. Polygraph Division filed January 1981, as
amended at the hearing, where he denied the commission
of any violations of the Act and by the separate answer
of Respondent Western Security, Inc. filed January 7,
1981, as amended at the hearing, where it denied the
commission of any violations of the Act.
The complaint, as amended at the hearing, alleges that
Alliance committed numerous violations of Section
8(a)(1) of the Act in response to the Union's organiza-
tional campaign of its facilities in Hot Springs, Arkansas,
commencing in April 1980;2 that about April 14, Alli-
ance terminated its employee Gary Crosley; that about
May 7, Alliance terminated its employees Jerry Atkins,
Lurene Burris, Johnny Carter, John Healey, Hazel
Hight, Kevin Hullinger, John Hutchison, Rosie Martin,
Michael Oaks, Clara Phillips, Judy Ratliff, Steven Rob-
ertson, Debra (Rogul) Moessinger, Louise Sullivan,
Robert Walker, and Alberta Washington; that October
31, Alliance terminated its employee Barbara Rains; that
about January 19, 1981, Alliance terminated its employee
Debra Luker; and that each of said terminations consti-
tuted violations of Section 8(a)(3) and (1) of the Act.
The complaint also alleges the commission of violations
of Section 8(a)(1) of the Act by Robert A. Blankenship
d/b/a W.C.S. Polygraph Division.
On the entire record in this case, including my obser-
vations of the demeanor of the witnesses and after due
consideration of the briefs filed by Counsel for the Gen-
eral Counsel, Respondents, and Charging Party, I make
the following
FINDINGS OF FACT AND ANALYSIS3
1. JURISDICTION
A. The Business of the Respondents
The complaint alleges, and Respondent Alliance ad-
mitted in its answer, that it is a corporation with an
office and place of business in Hot Springs, Arkansas,
and is engaged in the manufacture of rubber bands and
that annually in the course and conduct of its business
operations, it sold and shipped from its Hot Springs, Ar-
kansas facility products, goods, and materials valued in
excess of $50,000 directly to points outside the State of
Arkansas and that annually in the course and conduct of
its business operations, it purchased and received at its
Hot Springs, Arkansas facility products, goods, and ma-
terials valued in excess of $50,000 directly from points
outside the State of Arkansas. The complaint alleges, Re-
spondent Alliance admitted in its answer, and I find, that
all times material here Respondent Alliance was an em-
ployer within the meaning of Section 2(2), (6), and (7) of
the Act.
The complaint alleges, and Respondent Western admit-
ted in its answer, that it is a corporation with an office
and place of business in Little Rock, Arkansas, and is en-
gaged in the business of providing security guard service
2 All dates are in 1980 unless otherwise stated
2 The following includes a composite of the testimony of the witnesses
at the hearing, which testimony is credited except as specific credibility
resolutions are made
and that annually, in the course and conduct of its busi-
ness operations, it provided services valued in excess of
$50,000 for other enterprises within the State of Arkan-
sas, including Respondent Alliance. The complaint al-
leges, Respondent Western admitted in its answer, and I
find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
Respondent Blankenship admitted in his answer the al-
legation in the complaint that he, at all times material
here, was a proprietorship with an office and place of
business located in Little Rock, Arkansas, referred to as
W.C.S's facility and was engaged in the business of poly-
graph testing. Respondent Blankenship denied the allega-
tions in the complaint that he provided services valued in
excess of $50,000 for other enterprises within the State of
Arkansas, including Respondent Alliance, and also
denied the complaint allegation that he is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. The General Counsel con-
tends that Respondents Western and Blankenship consti-
tute a single employer and by virtue of the relationship
of Blakenship to Western that Respondent Blankenship is
engaged in commerce within the meaning of the Act.
Neither the original complaint nor any of the amend-
ments allege any violation of the Act by Western and
counsel for Respondents Western and Blankenship argue
that the only reason for inclusion of Western as a party
in this proceeding is to assert jurisdiction over Blaken-
ship. I find the record gives support to counsel 's argu-
ment in this regard as there was no evidence presented
by the General Counsel at the hearing of any violation of
the Act having been engaged in by Western. I find that
the General Counsel has failed to prove that Western Se-
curity, Inc. and W.C.S. Polygraph Division constitute a
single-integrated enterprise and a single employer within
the meaning of the Act. The evidence showed that West-
ern Security, Inc. is a corporation in which Willoughby
T. Blankenship has an ownership interest and in which
his son Robert A. Blankenship has no ownership interest
whereas W.C.S. Polygraph Division is a sole proprietor-
ship owned by Robert A. Blankenship. The business of
Western is the furnishing of security and guard services
whereas W.C.S. Polygraph Division provides polygraph
services. The evidence showed that although Robert A.
Blankenship d/b/a W.C.S. Polygraph Division rents
office space from Western, he pays Western the sum of
$200 per month rent and also furnishes polygraph exami-
nation services at a reduced rate for the consideration for
the office space. There was no current evidence of
common control of the two businesses. Rather, the evi-
dence showed that the office equipment and supplies are
separately owned. There was no evidence that Western
and W.C.S. Polygraph Division have held each other out
as a single enterprise. Rather, the entrance to the office
sets out separate signs for Western and W.C.S. Poly-
graph Division. In the instant case, although Blankenship
was referred to Spencer by W. T. Blankenship, the ar-
rangements for this service were made between R. A.
Blankenship and Spencer and Alliance was billed direct-
ly by W.C.S. Polygraph Division for these polygraph
services. Although there was evidence that R. A. Blan-
ALLIANCE RUBBER CO. 653
kenship received referrals for a portion of the business of
W.C.S. Polygraph Division, there was no evidence of
any sharing of fees between Western and W.C.S. Poly-
graph Division. Although the name of R. A. Blanken-
ship appeared on stationery of Western, W. T. Blanken-
ship testified that this related to a prior period when
R. A. Blankenship had been employed by Western. Ad-
ditionally, each of the two enterprises operates through
its own employees with no evidence of any sharing of
employee services. Consequently, I conclude as argued
in Respondents Western and W.C.S. Polygraph Division
briefs that there has been no evidence of interrelation of
operations , centralized control of labor relations,
common management , or common ownership or control.
I conclude that the General Counsel has failed to show
that Western and W.C.S. Polygraph Division are a
single-integrated enterprise or the alter ego of the other.
See United Constructors, 233 NLRB 904 (1977); Lauer's
Furniture Stores, 246 NLRB 360 (1979); and Bob's Motors,
241 NLRB 1236 (1979). Accordingly, I shall recommend
that the complaint be dismissed in its entirety with re-
spect to Western Security, Inc. I also find for reasons
which will be detailed infra in this decision that Robert
A. Blankenship d/b/a W.C.S. Polygraph Division was
an agent for Alliance within the meaning of Section
2(13) of the Act at all relevant times here and an em-
ployer within the meaning of Section 2(2) of the Act.
B. The Labor Organization
Although the complaint did not allege that the Union
is a labor organization , the Respondent raised no issue
concerning the Union's status as a labor organization and
I find that it is clear from the record before me and es-
tablished Board precedent that the UBC, Southern Coun-
cil of Industrial Workers, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent, Alliance, is engaged in the manufac-
ture and sale of rubber bands and is comprised of five di-
visions located in Alliance, Ohio; Hot Springs, Arkansas;
Franklin , Kentucky; El Monte, California; and Waldorf,
Germany. The alleged unfair labor practices concern
events involving the Hot Springs, Arkansas facility and
its employees . The overall responsibility for the entire
operation of Respondent Alliance and its five divisions
had been under Richard Spencer , its vice president for
approximately the past 5 years at the time of the hearing.
The Hot Springs and Alliance, Ohio divisions are manu-
facturing divisions and the other divisions are warehous-
ing facilities . Spencer testified that in early 1980, William
Penny was in charge of production of all divisions in the
United States and Robert Hatfield reported to sales ac-
tivities in the United States . Penny and Hatfield was in
charge of sales activities in the United States. Penny and
Hatfield reported to Spencer. Tom Davis was the pro-
duction manager for the Hot Springs facility. Spencer
lives in a mobile home on the plant premises. In early
1980, Spencer was not responsible for the direct oper-
ation of the Hot Springs facility but spent the major por-
tion of his time at the Alliance facility in Germany and
travel to and from the United States.
Spencer testified that in early 1980, he became aware
of a series of problems associated with the Hot Springs
facility as a result of complaints from neighbors and
word from caretakers of the property concerning the al-
leged activities of the employees at the Hot Springs facil-
ity, particularly during the night and early morning
hours. These activities were alleged to have taken place
in the parking lot and to involve the use of marijuana
and the occurrence of loud noises from the plant parking
area at night. Spencer attempted, without success, to in-
vestigate these matters by checking the parking lot at
night. Additionally, while he was in Germany, Spencer
learned that Alliance's quality assurance certificate from
the General Services Administration (GSA) was suspen-
dend as a result of undercured rubber bands which had
been shipped from the Hot Springs facility. In early
1980, the General Services Administration was the larg-
est customer of the Hot Springs facility's output and ac-
counted for approximately 90 percent of the production
at the Hot Springs facility under two contracts awarded
by GSA of Alliance. The significance of the loss of the
quality assurance certificate is a delay in Alliance's deliv-
ery schedule and receipt of payment pending advance in-
spection by GSA of each shipment with the consequent
likelihood that Alliance could not meet its scheduled de-
livery dates and would be held in default under the GSA
contract as well as incur production problems. In March,
Alliance was notified it was in default under its GSA
contract delivery schedule. Spencer also testified that a
high percentage of scrap was being generated at the Hot
Springs facility as a result of undercured and offsize
rubber bands and foreign matter in the rubber mix.
On April 9, Spencer took over direct operation of the
Hot Springs facility and terminated Production Manager
Tom Davis. At this time Alliance operated three shifts.
Spencer testified that a large accounting discrepancy was
discovered and Spencer conducted a meeting of the
office personnel concerning it. In order to resolve the
problem, Spencer arranged for a polygraph examiner,
Jack Jackson, to be available and he, himself, took a
polygraph examination and offered the opportunity to
take an examination on a voluntary basis to other person-
nel, thus commencing the use of the polygraph at the
Hot Springs facility.
Spencer testified that during this period and prior
thereto, there were numerous incidents of damage to
equipment and material which he regarded as the result
of "sabotage" (intentional acts) occurring at the Hot
Springs facility. He testified to numerous incidents re-
ported to him and that he personally took photographs
of foreign matter in the rubber mix, including parts of a
broom, kleenex in machinery, a styrofoam cup in a pipe,
and fire extinguishers emptied and placed under refuse.
Spencer testified that many of these items resulted in
burned out motors and damages to machinery and thou-
sands of dollars of damage. He also received a visit from
an agent of the Enviromental Protection Administration
who brought in samples of Alliance's material (an experi-
654 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mental Picco Resin) which had been dumped without au-
thorization at a landfill. Alliance was also contacted by
the metropolitan water and sewer system concerning the
presence of large chunks of rubber in the pumping sta-
tion. Traces of the Picco Resin were also found in the
company 's rubber mix resulting in contamination. Re-
spondent presented numerous photographs and exhibits
of these incidents (R. Alliance Exhs. 45 to 74). Approxi-
mately the end of April, Spencer learned there had been
a narcotic agent from the Hot Springs Police Depart-
ment investigating drug traffic at Alliance's plant. I
credit Spencers testimony as sent out above. Although
there was some limited testimony presented by the Gen-
eral Counsel through witness Gary Crosley, a former
maintenance man and others, that the plant was dirty and
the machines were in need of repair, I find that Spencer's
testimony was largely unrebutted concerning these inci-
dents and as partially corroborated by several employees
concerning several incidents although no employee ad-
mitted any knowledge of intentional acts of destruction
of property or interference with the operations of the
Hot Springs plant. I find that the evidence was clear and
convincing and unrebutted that there was a high inci-
dence of foreign matter in the rubber mix and clear evi-
dence of the intentional placement of foreign matter such
as kleenex in the machinery in certain incidents involving
the dismantling of the machinery and the placement of
the foreign matter in it.
The General Counsel alleges that in early April 1980,
there was an ongoing organizational campaign conducted
by the Union in an effort to organize Alliance's Hot
Springs facility, that during this campaign Alliance ter-
minated maintenance man Gary Crosley who had report-
ed to an Alliance supervisor in early 1980 that he had
been contacted by a "union;" terminated employee John
Hutchison; engaged in numerous violations of Section
8(a)(1) including the administration of polygraph exami-
nations to its supervisors and employees in early April
by polygraph examiner Jack Jackson and its plant em-
ployees on April 30 and May 1 and 6 by polygraph ex-
aminer Robert Blankenship and elicited information
about their own and other employees' union activities
during these examinations and terminated employees
identified with the union campaign in a layoff for pretex-
tual economic reasons on May 7. The General Counsel
also alleges that Respondent Robert A. Blankenship vio-
lated Section 8(a)(1) of the Act by his interrogation of
Respondent's employees concerning their union activi-
ties. The General Counsel also alleges that Respondent
Alliance unlawfully terminated Barbara Rains in October
and Debra Luker in January 1981 for their union activi-
ties.
Respondent Alliance contends that the polygraph ex-
aminations conducted of third-shift employees and super-
visors in early April related to damage occurring on the
third shift and that Bill Krenzelok (the quality assurance
manager at the Hot Springs facility) was polygraphed at
his request after he (Krenzelok) expressed concern that
Hatfield and Penny did not trust him. Spencer testified
that he neither gave Jackson instructions concerning
questioning employees about union activity nor did he
receive information from Jackson concerning union ac-
tivities of his employees although he acknowledged re-
ceiving reports of the polygraph examinations . Krenze-
lok testified that he was asked by Jackson in the poly-
graph exmination whether he had conspired with any
union against A.R.C.O. (Alliance) or whether he had any
dealings with a union . Foreman Billy Wayne (Bill)
Walker testified he was also interrogated concerning
union activities. Debra (Rogul) Moessinger testified that
she was administered the polygraph examination on
April 23 (the polygraph examination administered by
Jackson) and was questioned concerning a union.
Ostensibly, as a result of the damage of Aliance's ma-
chines and the contamination in its rubber material mix,
Spencer engaged the guard service of Western Security,
Inc. and testified that he discussed the problems of sabo-
tage with Willoughby T. (W. T.) Blankenship the gener-
al manager and security chief and a part owner of West-
ern Security . He also requested a recommendation for a
polygraph examiner to examine the employees. W. T.
Blankenship arranged for guards to be assigned to Alli-
ance facility in Hot Springs and recommended his son
Robert A. (R. A.) Blankenship who operated a sole pro-
prietorship under the name of W.C.S. Polygraph Divi-
sion and maintained his office in the same suite as West-
ern Security. W. T. Blankenship testified he called his
son R. A. Blankenship and told him to call Spencer and
make arrangements for the polygraph examination. R. A.
Blankenship called Alliance and made arrangements for
the polygraph examination of the employees, which he
administered on April 30 and May 1 and 6. The examina-
tions were administered in a separate building behind the
plant. The employees were called in groups of three.
Spencer (in the presence of the chief security guard of a
detail of four or five guards assigned to the Alliance
plant) questioned them whether they had any informa-
tion concerning the alleged sabotage at the plant and
showed them photographs of alleged damage and pieces
of rubber material with foreign substances there. After
initial questioning of the employees, Spencer told them
they could choose to take a polygraph examination with
the exception of pregnant women who were excluded
from the polygraph examination and went in singly to an
adjacent room where R. A. Blankenship had set up his
polygraph equipment and administered the examination.
Blankenship initially questioned the employees prior to
the test and took non verbatim notes and then adminis-
tered the formal examination. Several of the employees
who testified in this proceeding concerning the adminis-
tration of the test to them were asked questions concern-
ing their knowledge of union activities with some vari-
ations as to questions asked of each individual . Accord-
ing to Spencer and Blankenship , the focus of the tests
was to be on alleged sabotage and there was no discus-
sion of or request by Spencer to Blankenship that he
make inquires concerning union activities . In support of
this testimony, Respondent introduced two exhibits into
evidence that contained the list of questions given to
Blankenship by Spencer. Spencer testified that the focus
of his own pretest interview was on sabotage and there
was no mention of a union . However , witnesses Debra
(Rogul) Moessinger and Louise Sullivan testified that
ALLIANCE RUBBER CO. 655
Spencer did make mention of a union during his pretest
interview.
Blankenship testified that he routinely asks questions
concerning union activity when he polygraphs employ-
ees concerning possible sabotage of an employer's prop-
erty or operations. He testified that in this instance, he
forgot to ask the union questions initially but commenced
to ask them after one of the employees mentioned union
activity. Some of the employees examined on April 30
were not questioned concerning union activity. The un-
rebutted testimony of the employees who were asked
questions concerning union activity by Blankenship as
borne out by Blankenship's notes and copies of their
polygraph examinations show that Blankenship actively
pursued the issue of union activities. Blankenship in-
quired as to employees' knowledge of union activities,
whether they had signed a card, were members of a
union, attended union meetings, inquired into the identity
of the union adherents, and suggested names of employ-
ees who might be engaged in union activities. This ques-
tioning was sometimes followed up by statements by
Blankenship that he already knew who the union adher-
ents were so the employee ought to tell him and that the
employees ought to be concerned about their own jobs.
The employees variously responded that they did not
know anything about union activities, or that they had
signed cards or knew of union meetings or were mem-
bers of other unions or related their knowledge of the
union activities of other employees. The final part of the
polygraph examination contained a question by Blanken-
ship whether the employees knew more about the union
than they had related. In this fashion, a number of em-
ployees were identified as active union adherents (i.e.,
engaged in the solicitation of union cards or in attending
union meetings), others as having signed union cards,
having been members of other unions. Some employees
refused to implicate other employees in union activity.
The polygraph examinations administered by Blanken-
ship commenced on April 30 and continued until the
morning of May 1. Blankenship returned on May 6 to
complete the examinations. He testified he made no men-
tion of union activity to Spencer during this time and did
not send out the completed typed polygraph reports until
after May 7, the day of the layoff. Spencer testified that
he was not aware of Blankenship's focus on union activi-
ties during this entire period and was not otherwise
aware of the union activity at the Hot Springs facility, or
the involvement of any employee there until sometime
after the layoff of May 7. I do not credit Spencer or
Blankenship with respect to their denials, that Spencer
had knowledge and his concerns therefrom to Blanken-
ship prior to the administration of the polygraph exami-
nations by Blankenship. Nor do I credit Spencer's or
Blankenship's denials that the result of the tests and the
answer of the employees were made known to Spencer
prior to May 7. In view of my findings hereafter set out
with respect to certain 8(a)(1) violations engaged in by
Spencer and his supervisors and agents prior to and after
the administration of the polygraph examinations and in
view of Blankenship's aggressive pursuit of the union
theme in his examination of the employees, I find that
Spencer's knowledge and that of Respondent Alliance of
an organizational campaign prior to the administration of
the polygraph examination may be inferred. I also find
that Spencer's knowledge of the results of the polygraph
examinations with respect to the union sympathies and
activities of his employees prior to the May 7 layoff may
be inferred. I find implausible and do not credit Blanken-
ship's testimony that he informed Spencer that there was
a "drug" problem but made no mention of union activi-
ty. In view of the overwhelming evidence that one of
the primary targets of Blankenship's questions was union
activity, I find inconceivable his assertion that he made
no mention of this to Spencer but merely informed Spen-
cer that he had a "drug" problem.
On May 7, Respondent laid off 15 employees (Jerry
Atkins, Lurene Burris, Johhny Carter, John Healey,
Hazel Hight, Kevin Hullinger, Rosie Martin, Michael
Oaks, Clara Phillips, Judy Ratliff, Steven Robertson,
Debra (Rogul) Moessinger , Louise Sullivan, Robert
Walker, and Alberta Washington). Of this total, all but
Carter, Hight , Hullinger , and Ratliff testified at the hear-
ing.
Atkins was administered a polygraph test by Blanken-
ship on April 30, and testified that he was questioned
whether he had heard about union activity. He replied
yes but refused to answer when asked if he knew of
anyone else talking about the Union. Atkin's testimony
was not specifically rebutted by Blankenship. Although
the polygraph test itself and the nonverbatim notes taken
by Blankenship do no reflect any questions concerning a
union, I note that the procedure followed by Blanken-
ship was to ask informal questions and take nonverbatim
notes prior to the test. Accordingly, I credit Atkin's tes-
timony as set out above.
Burris testified she had solicited union cards in the
breakroom and on the parking lot. Burris was adminis-
tered the polygraph examination on April 30 and told
Blankenship that she had been approached by Lee (Wen-
dell Lee) in response to his inquiry whether she had been
asked about a union . I credit Burris ' unrebutted testimo-
ny which is corroborated by Blankenship's notes and the
polygraph examination.
Carter, who did not testify, was polygraphed on April
30 and the examination and notes do not reflect questions
having been asked of him concerning a union.
Healey, who was administered a polygraph examina-
tion on April 30, testified he was asked three or four
questions about the Union and told Blankenship that he
had signed a union card. Blankenship's notes and the
polygraph examination reflect that Healey told the exam-
iner that he had been approached to join a union within
a week to a week and a half prior thereto and that
Lurene (Burris), Ilene Hamilton, and Louise (Sullivan)
had told him about a meeting but he did not attend. The
notes and the examination also reflect that Healey told
the examiner that he was a member of the International
Association of Machine and Aerospace Workers in Con-
necticut.
The polygraph examination was administered to Hight
on April 30 and the examination and notes reflect that
Hight told the examiner that she had been approached
656 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
by Martin a week prior thereto and had a union card but
she did not sign it.
Hullinger was administered a polygraph examination
May 1 and the examination reflects that he was asked
whether he knew more about the Union than he had
stated, to which he replied no. Neither the notes nor the
examination reflect what else was asked of Hullinger re-
garding the Union.
Martin was administered a polygraph examination on
April 30 and testified that she told Blankenship that she
had heard rumors of union activity, but would not give
the names of anyone involved. Blankenship told her to
worry about her own job. She testified she was repeated-
ly asked questions concerning the Union and that, as she
left, the examiner asked her what she thought about a
union to which she replied one was necessary in order
that the examiner could not do what he had (interrogat-
ed her concerning union activities). The examination and
notes reflect that Martin told Blankenship she had heard
some people discuss the formation of a union and some
liked the idea. I credit the unrebutted testimony of
Martin which is partially supported by the examination
and notes.
Oaks, who was administered the polygraph examina-
tion on May 6, testified he was asked by the examiner
who had approached him about the Union and that the
examiner suggested the names of Rosie (Martin), Lurene
(Burris), or Louise (Sullivan) and that he answered that
he had been approached by Burris and had signed a
card, and heard about a union meeting. I credit the unre-
butted testimony of Oaks, which is partially supported
by the examination and notes.
Phillips, who was administered the polygraph exami-
nation on April 30, testified she acknowledged to Blan-
kenship that she had signed a union card and had dis-
cussed the Union with Sullivan. She was asked by Blan-
kenship whether Rosie (Martin) had signed a card. Phil-
lips testified she told him she did not know, whereon
Blankenship told her he already knew and that she had
her own job to think about. The examination and notes
reflect that Phillips acknowledged having been ap-
proached by Louise (Sullivan) and Lurene (Burris) and
that she (Phillips) had signed a union card. I credit the
unrebutted testimony of Phillips, which is partially cor-
roborated by the examination and notes.
Ratliff was administered a polygraph examination on
May 6. The examination reflects that she was asked
whether she knew more about the Union than she had
stated and the notes reflect that she replied no.
Debra (Rogul) Moessinger testified that she had not
been aware of the union organizational campaign until 2
weeks after the layoff. She was administered the poly-
graph examination on two occasions (April 23 and May
1). The examination and notes of the May I examination
reflect that she stated she had not been approached by a
union and was asked by the examiner whether she knew
more about the Union than she had stated. Moessinger
also testified that prior to the polygraph examination ad-
ministered to her on April 30 (a copy of the examination
lists the date of May 1) Spencer discussed the sabotage
with her and told her "he thought maybe the Union was
influencing it" and also stated "that at the most, if the
Union had gotten in, the plant would not be running
under operation." Moessinger also testified that she was
asked about employee Kerry Roden during the second
polygraph examination and that the examiner also told
her the second shift was a bad shift. I find that Moes-
singer was mistaken in her placement of the date of the
second polygraph test as April 30 rather than May I
which I find to be the correct date. Although Spencer
denied making any statements concerning the Union, I
credit Moessinger's testimony as set out above.
Sullivan was administered the polygraph examination
on April 30. Sullivan testified that between the time she
signed a union card (April 15) and the time of the poly-
graph examination there were meetings among the em-
ployees concerning the Union and that three meetings
were held at her home (one between Union Business
Representative Lee and herself), a second meeting at-
tended by Ilene (Hamilton), Lee, and herself, and a third
meeting attended by Lee, Clara Phillips, and herself. Sul-
livan testified that prior to the administration of the poly-
graph, Spencer told her that the polygraph had to do
with sabotage and he thought the Union might be
"paying off somebody to get the work done in Ohio."
She testified that during the course of the polygraph ex-
amination she was asked whether she knew anything
about the Union and replied, "No" The examiner also
asked her whether she was aware of a union meeting
that had taken place that morning and she replied, "No"
although there had been a meeting between herself and
Lee that morning The polygraph examination and the
notes reflect that Sullivan told the examiner that some-
one had called her 2 or 3 weeks prior thereto about a
union but that she did not know anything about a union
meeting on the day of the examination. The examination
also reflects that she was asked whether she knew more
about the Union than she had told the examiner. I credit
Sullivan's unrebutted testimony as set out above and as
corroborated in part by the examination and notes.
Robert Walker was administered the polygraph exami-
nation on April 30. He testified that he was asked wheth-
er he knew of union activity or who had signed union
cards and replied, "No." Although the polygraph exami-
nation and the notes do not indicate that any questions
about a union were asked of Robert Walker, I credit
Walker's unrebutted testimony.
Alberta Washington was administered the polygraph
examination on May 6 She testified that she told the ex-
aminer that she had signed a union card and that Robert
Walker had approached her and told her he had signed a
union card The polygraph examination and notes reflect
that she told the examiner that two men had come to her
home and she had signed a union card and that she heard
that Louise (Sullivan) and Robert Walker had also
signed a union card and that she was told about a union
meeting the preceding day by Clara Phillips which had
been attended by Louise (Sullivan), and that Robert
Walker had told her he had solicited union cards. I
credit Washington's testimony, which is partially sup-
ported by the examination and notes.
ALLIANCE RUBBER CO 657
B. The Alleged 8(a)(1) Violations
1. Paragraph 7 of the complaint alleged
interrogation and threats by Second -Shift
Supervisor Billy Wayne (Bill) Walker4
Burris testified that immediately after she was adminis-
tered the polygraph examination (April 30)., her supervi-
sor, Bill Walker, asked her whether she had been asked
anything about the Union and she i epeated for him what
she had told the polygraph examiner. Bill Walker testi-
fied he did not recall this conversation. I credit Burris'
testimony concerning this inquiry by Bill Walker and
find that under the circumstances of this case this inquiry
by Walker constituted unlawful interrogation of Burris
concerning her knowledge of union activities at the plant
and that Respondent Alliance thereby violated Section
8(a)(1) of the Act.
Oaks testified that approximately a week. prior to the
layoff, Bill Walker approached hire and asked who was
starting the union and stated that he (Bill Walker)
thought it was Martin. Oaks testified he (Oaks) did not
answer . Bill Walker testified at the hearing that he did
not recall such a conversation and denied that he made
any inquiries of Oaks about the Union. I credit the testi-
mony of Oaks over that of Bill Walker and find that
Walker did interrogate Oaks concerning the union and
that Respondent Alliance thereby violated Section
8(a)(1) of the Act.
Robert Walker testified on cross-examination that 7 or
8 days prior to the layoff, Supervisor Bill Walker ap-
proached him at work and told him that he (Robert
Walker) knew how Spencer felt about what was going
on and advised Robert Walker to "leave it as it is."
Robert Walker had previously testified on direct exami-
nation that Bill Walker had used the word "Union" in
the conversation but acknowledged on cross- examination
that the word "Union" was not used by Bill Walker.
However, under the circumstances, I conclude that Bill
Walker was referring to the Union, in view of the con-
text of the conversation and similar inquiries made by
Bill Walker of other employees concerning union activi-
ties. Bill Walker testified that he did not recall any con-
versation with Robert Walker in late April or early May
concerning a union. I credit the testimony of Robert
Walker over the lack of recall of Supervisor Bill Walker
and find that the inquiry by Bill Walker concerning the
Union constituted unlawful interrogation and Respond-
ent Alliance thereby violated Section 8(a)(1) of the Act
and that Bill Walker's warning to Robert Walker that he
should leave it as it is constituted an unspecified threat
and that Respondent Alliance thereby violated Section
8(a)(1) of the Act.
* The complaint alleges, the answer of Respondent Alliance admits,
and I find that at all times material Vice President Richard Spencer,
Quality Control Manager Bill Krenzelok , Shift Foreman Billy Walker,
Shift Foreman Cecil William Bennett (Sr ), and Assistant Shift Foreman
Billy Harold Hughes were supervisors of Respondent Alliance within the
meaning of Sec 2(11) of the Act and agents of Respondent Alliance
within the meaning of Sec 2(13) of the Act I also find on the basis of
the credible evidence that Personnel Manager Tommie Graham was a su-
pervisor and agent of Respondent Alliance within the meanng of Sec.
2(11) and (13) of the Act
Sullivan testified that on May 5 her supervisor, Bill
Walker, approached her and employee Ilene Hamilton
and asked them whether they had signed a union card.
Hamilton asked whether they would be "fired" if they
had signed a union card and Walker replied in the nega-
tive unless they were a "leader." Walker proceeded to
tell them about the experience of his mother with a
union. Sullivan testified that both she and Hamilton told
Walker they had signed a union card. Walker testified
that he recalled the conversation occurring in April but
did not recall how it got started and could not remember
whether anything was said about union cards but that he
was under the impression that both Hamilton and Sulli-
van had signed cards. I credit Sullivan's testimony as set
out above regarding the incident which is partially cor-
roborated by Walker. Accordingly, I find that the ques-
tioning of Sullivan and Hamilton by Walker concerning
whether they had signed a union card constituted unlaw-
ful interrogation and that Respondent thereby violated
Section 8(a)(1) of the Act. I also find that Walker's reply
to Hamilton's inquiry that they would not be fired unless
they were a "leader" constituted and unlawful threat of
discharge and that Respondent Alliance thereby violated
Section 8(a)(1) of the Act.
Debra Whitaker, the sister of Rosie Martin, testified
that approximately 2 weeks after the layoff of May 7,
Bill Walker approached her and said he was sorry her
sister (Rosie Martin) had been laid off, but sooner or
later it was going to catch up with them and that a lot of
people thought the layoff was because'of the Union but
it was not because the Union had tried to come in behind
his back and they could not get in that way . In the same
conversation Bill Walker told Whitaker that Robert
Walker had spilled everything. Walker testified he did
not recall this conversation. I credit Whitaker's testimo-
ny as set out above. However, I find Walker 's statements
to Whitaker to be susceptible of two interpretations, one
referring to union activity and the second referring to
sabotage, particularly in view of Walker's reference to
Robert Walker who denied knowledge of union activity
but had discussed sabotage in the polygraph examination.
Accordingly, I find that the evidence is insufficient to
prove a violation of the Act with respect to the state-
ments made by Walker to Whitaker.
2. Paragraph 8-alleged interrogation of employees
by Supervisor Bill Krenzelok
Alberta Washington testified that the day after she
signed a union card (April 29) she discussed the matter
with fellow employee Susan Clark and Clark advised her
to tell someone in the office about it. Washington replied
she was afraid to do so and Clark talked to Quality Con-
trol Supervisor Krenzelok. Krenzelok approached Wash-
ington and asked her if she had a union card and she re-
plied "no" and he told her he knew about it so she might
as well tell him. She then told him that she had some
cards at home but did not know where they were locat-
ed and Krenzelok told her to bring them in when she
found them. Washington testified that on the following 2
days Krenzelok inquired whether she had found the
union cards. Although Clark was called as a witness by
658 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent, she was not questioned concerning this inci-
dent. Krenzelok testified that Washington volunteered to
him that she had a union card and he asked her to bring
one in as he was unaware of what a union card was and
later asked her if she had brought the card in, but she
stated she had lost it. I credit Washington's version of
these conversations, which I find to be logical and find
that Krenzelok's interrogation of Washington was unlaw-
ful and that Respondent Alliance thereby violated Sec-
tion 8(a)(1) of the Act.
3. Paragraph 9(a)-the alleged threat by Supervisor
Jerry Bingham
Washington testified that 2 or 3 days prior to the
layoff of May 7, she had been talking with Krenzelok
about the Union and that afterward her supervisor, Jerry
Bingham, approached and asked her what she had been
talking to Krenzelok about. She told Bingham that Kren-
zelok had been inquiring "about the Union card and the
Union," whereon Bingham told her that "I better not
have anything to do with that because I would get in
trouble." I credit Washington's testimony concerning this
conversation, which is unrebutted as Bingham did not
testify. I find that Bingham's statement to Washington
was an unspecified threat of reprisal if Washington con-
tinued to engage in union activities and that Respondent
Alliance thereby violated Section 8(a)(1) of the Act.
4. Paragraph 9(b)-alleged threat by Spencer about
April 30 that Respondent Alliance would
discontinue operations at its Hot Springs facility
rather than bargain with the Union
Debra (Rogul) Moessinger, a former employee who
was administered polygraph examinations of April 23
and 30, testified that prior to the polygraph examination
on April 30, Spencer explained that the reason for the
tests was "sabotage" and "he thought maybe the Union
was influencing it." She further testified that Spencer
stated, "That at the most, if the Union had gotten in, the
plant would not be running under operation." Spencer
did not directly respond to the testimony of Moessinger
but testified that he never asked the employees anything
about the Union nor did any of the employees relate any-
thing concerning union activities during his interrogation
of them at the time of the administration of the poly-
graph examinations by Blankenship.
I credit Moessinger's specific recollection of this event
rather than Spencer's generalized denial. I also find
Moessinger's testimony in this regard to be plausible and
believable in view of my findings concerning Spencer's
knowledge of union activity at the time of the adminis-
tration of the polygraph examinations . Accordingly, I
find that Spencer's statement to Moessinger was a threat
of plant closure if the Union were successful in its orga-
nizational campaign and that Respondent Alliance there-
by violated Section 8(a)(1) of the Act.
5. Paragraph 9(c)-alleged interrogation of an
employee by Spencer about September 5, 1980,
concerning her union sentiments and alleged
instruction to the employee to report the union
activities of other employees to Respondent
Alliance
Employee Debra Luker testified that on September 5,
1980, she visited the office of Respondent Alliance to
pay the remainder of her rent due on a cottage she and
her family had previously occupied on Respondent's
premises. At that time, Luker asked to talk to Spencer
and told him that she and her husband, Ronald Luker,
had been notified to testify concerning this unfair labor
practice proceeding. She testified she also told Spencer
that Bill Freeman, the captain of the security guards as-
signed by Western to guard Respondent Alliance's prem-
ises , had told her and her husband, Ronald Luker, that
the majority of the employees had been laid off (on May
7) as a result of their union activity. She testified that
Spencer then stated that Freeman was not supposed to
open his mouth and that he was going to contact "Blan-
kenship" and apprise him of what Freeman had said. She
further testified that Spencer told her he appreciated the
information and to let him know if she heard anything
else. Spencer acknowledged this conversation but testi-
fied that Debra Luker told him that "a union" had con-
tacted her husband to testify against the company (Alli-
ance) and that he (Spencer) said, "I don't understand
what you mean and I don't know why he would have
been." Spencer denied that he asked Debra Luker to
keep him informed if she heard anything about the
Union. Spencer later testified that Luker had told him
about the remarks made by guard Bill Freeman and that
he (Spencer) told her that the reason for the layoff was
not union activity.
I credit the specific testimony of Debra Luker as set
out above. I do not find plausible Spencer's purported
response to Luker that he did not know what she meant
concerning the information that her husband had been
contacted to testify by the Union. This is particularly so
in view of Spencer's admitted knowledge of the pending
unfair labor practice charges at the time. Accordingly, I
find the request made by Spencer to Debra Luker to
keep him informed was a request that she report the ac-
tivities of the Union and of his employees concerning
their union activities and that Respondent Alliance there-
by violated Section 8(a)(1) of the Act.
6. Paragraph 9(d)-the alleged 8(a)(1) violation by
Respondent Alliance by the instruction of Foreman
Lynn Chambers to an employee at Respondent
Alliance's Hot Springs facility in December to
report to Respondent Alliance all instances in
which the employee was solicited by other
employees to sign a union card on worktime
The General Counsel presented no testimony to sup-
port this allegation. The sole testimony presented by the
General Counsel concerning Foreman Lynn Chambers
was elicited from employee Cecil Bennett Jr., who testi-
fied that he told his foreman, Chambers, of a conversa-
tion he had with Debra Luker in January 1981 concern-
ALLIANCE RUBBER CO
ing her union activities and that prior thereto Chambers
had told him individually not to discuss the union on
"company time" but that such discussions could take
place during breaktime. This testimony clearly fails to
prove the allegation of paragraph 9(d). Accordingly, I
find that the General Counsel has failed to prove a viola-
tion of Section 8(a)(1) of the Act with respect to para-
graph 9(d) of the complaint and shall recommend the
dismissal of this allegation of the complaint.
7. Paragraph 10-the alleged interrogation of
employees by Respondent Alliance acting through
Polygraph Examiner Jack Jackson about April 11
and April 23 concerning their own and other
employees union activities during the administration
of polygraph examinations by Jackson
The General Counsel presented testimony that Super-
visor Bill Krenzelok was questioned by Jackson during
polygraph examinations administered to him on April 23
concerning his membership in a union and whether he
had conspired with a union against Respondent Alliance.
Employee Debra (Rogul) Moessinger testified she was
administered a polygraph examination on April 235 and
was asked questions concerning union activities. I credit
Krenzelok's and Moessinger's testimony 'which was unre-
butted as Jackson did not testify. Furthermore, I fmd
that omission of any reference to questions concerning
union activities from the reportof Moessinger's examina-
tion by Jackson is insufficient to rebut her explicit testi-
mony that she was asked questions concerning union ac-
tivities. Although the report (R. Exh. 44) was received in
evidence, there was no testimony to prove that this
report was verbatim and/or a complete record of all
questions that were asked of Moessinger. I also find that
the knowledge of Respondent Alliance that Jackson was
interrogating employees concerning union activities may
be inferred under the circumstances of this case particu-
larly in view of other acts of interrogation and threats of
Respondent's employees engaged in by its supervisors
and agents as found in this decision. Moreover, Respond-
ent presented no evidence of any business justification
for the interrogation of Moessinger concerning union ac-
tivities. See Johnnie's Poultry Co., 146 NLRB 770 (1964),
enf. denied 344 F.2d 617 (8th Cir. 1965). Accordingly, I
fmd Jackson acted as an agent of Respondent Alliance
within the meaning of Section 2(13) of the Act in his in-
terrogation of Moessinger concerning union activities
and that Respondent Alliance thereby violated Section
8(a)(1) of the Act.
8. Paragraph 11-the alleged interrogation of
Respondent Alliance's employees by Robert A.
Blakenship concerning their own union activities
and those of other employees
The evidence is undisputed that a number of Respond-
ent Alliance's employees were interrogated concerning
their own union activities and those of their fellow em-
ployees as found supra. Blankenship and Spencer testified
5 Spencer acknowledged that these examinations were conducted by
polygraph examiner Jpck Jackson
659
that Spencer requested only that Blankenship require of
employees concerning alleged "sabotage" at the Hot
Springs facility. Respondent Alliance submitted an origi-
nal and a revised set of questions furnished by Spencer
to Blankenship for purposes of the polygraph examina-
tion and those questions on their face are devoid of any
reference to union activities. Blankenship testified that he
routinely asks questions concerning union organizational
activities in cases involving plant and industrial "sabo-
tage" but initially neglected to do so in this case until an
employee made mention of a union and that he thereafter
incorporated subsequent union questions into the remain-
ing polygraph examinations. He testified further that he
made no mention of any union activities to Spencer, al-
though Spencer was in an adjoining room throughout
the course of the polygraph examinations. He testified he
did inform Spencer that there was a drug problem. Spen-
cer denies that he had any knowledge of union activities
among his employees until he read the polygraph reports
prepared by Blankenship of his employees after the
layoff of May 7.
I do not credit either Spencer or Blankenship in this
regard. Initially, I find that knowledge of union activity
among its employees may be inferred to Alliance by
reason of the various acts of interrogation and threats en-
gaged in by Spencer and his supervisors as found supra.
I do not find the lack of written questions about union
activities from the examination of certain employees by
Blankenship to be determinative of the question whether
Blankenship had been apprised of union activity among
Alliance's employees prior to his commencement poly-
graph examination. Moreover, the unrebutted testimony
of the employees of their interrogation by Blankenship
concerning their union activities and the union activities
of their fellow employees, with accompanying admoni-
tions that he (Blankenship) already knew about the union
activities and the identity of union supporters and the
suggestions by Blankenship of the names of other em-
ployees as suspected union adherents as well as the
threats issued by Blankenship that the employees had
their own jobs to consider, lead to the logical conclusion
that Blankenship had been apprised of the union cam-
paign among Respondent Alliance's employees prior to
the administration of the examinations. I find it implausi-
ble that Blankenship would have devoted this amount of
effort and intensity to questions concerning union organi-
zational activities at Alliance's Hot Springs facility if he
had not been given at least tacit approval for his actions
by Respondent Alliance. I also find it implausible that
Blankenship would not have apprised Spencer of the
union organizational effort and activities of his employ-
ees over the course of a week when the examinations
were administered on April 31 and May 1 and 6, particu-
larly in view of Spencer's presence in an adjacent room
during the course of the examinations and Blankenship's
own testimony that he informed Spencer that there was
a drug problem.
Interrogation of employees concerning their union ac-
tivities and sympathies and those of their fellow employ-
ees is inherently violative of their rights under Section 7
of the Act. There are two recognized exceptions where
660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employers may lawfully question employees concerning
union activities (to determine whether the Union has a
majority for recognition purposes and to prepare for the
defense of an unfair labor practice charge). See Johnnie's
Poultry Co., supra. Although there may be other lawful
grounds for questions about union activities, no justifica-
tion was established by Respondents Alliance and Robert
A. Blankenship in the instances of the interrogations en-
gaged in by Blankenship. Blankenship testified that he
routinely interrogates employees concerning union activ-
ity in cases involving industrial sabotage. However, nei-
ther Blankenship nor Respondent Alliance presented any
justification for inquiring into union activities generally
or in this particular case. Under these circumstances, I
find no business justification has been shown for the in-
terrogation by Blankenship of employees concerning
union activities. Moreover, Respondent Alliance and Re-
spondent Robert A. Blankenship have failed to show that
the standards set out in Johnnie's Poultry Co., supra at
775, were met. Thus, there was no evidence that employ-
ees were assured no reprisals would take place by the
employer. I do not find that the employees' participation
was voluntary in view of the coercive atmosphere in
which they were told to report to Spencer who informed
them of the alleged purpose of the questioning did not
occur in an atmosphere free of employer hostility to
union organization; the questioning by Blankenship was
coercive in nature as characterized by admonitions to
employees that he already knew about their own jobs
and a followup question whether they had told him all
they knew about the union.
Accordingly, I find the Robert A. Blankenship acted
as the agent of Respondent Alliance within the meaning
of Section 2(13) of the Act in the course of the adminis-
tration of the polygraph examination and his interroga-
tion of Respondent Alliance's employees concerning
their union activities and sympathies and those of their
fellow employees and by his issuance of threats of cer-
tain employees concerning their jobs at Alliance. I find
that Respondent Alliance is responsible for the above un-
lawful conduct engaged in by its agent Robert A. Blan-
kenship. I find such interrogation and threats were with-
out any business justification and were inherently viola-
tive of Section 8(a)(1) of the Act and that Respondent
Alliance thereby violated Section 8(a)(1) of the Act. I
also find that Respondent Robert A. Blankenship d/b/a
W.C.S. Polygraph Division is an employer within the
meaning of the Act insofar as the acted directly in behalf
of Respondent Alliance in his unlawful interrogation of
Respondent Alliance's employees during the course of
his adminstration of polygraph examinations. Section 2(2)
of the Act provides that "the term `employer' includes
any person acting as an agent of an employer, directly or
indirectly . . . ." See National Welders Supply Co., 132
NLRB 660 (1961). See also Dean Industries, 162 NLRB
1078 (1967); and Sierra Academy of Aeronautics, 182
NLRB 546 (1970). Accordingly, I find that Respondent
Alliance Rubber Company and Respondent Robert A.
Blankenship d/b/a W.S.C. Polygraph Division each vio-
lated Section 8(a)(1) of the Act by the interrogation and
threats engaged in by Robert A. Blankenship during the
course of the administration of polygraph examinations
to the employees of Alliance.
C. The Termination of Employee Gary Crosley
Crosley was employed in May 1979 by Alliance and
worked as a maintenance employee until his termination
by Spencer on April 14. Crosley had previously worked
for a rubber manufacturing plant in Ohio and been a
member of a union for a period of 10 years. Alliance
quality control supervisor, Bill Krenzelok, testified that
in March, Crosley told him that he had been approached
by a union representative but that he (Krenzelok) had
not reported this to the management of Alliance, includ-
ing Spencer. Crosley, himself, testified that he had never
been contacted by anyone concerning the establishment
of a union at the Hot Springs facility. He also testified
that he was never questioned by a supervisor (of Alli-
ance) concerning a union. He testified further that he did
not favor the establishment of a union at the Hot Springs
facility or unions generally.
On his final day of work for Respondent Alliance
(April 14), Spencer called Crosley into his office be-
tween 10:30 and 11 a.m. and in the presence of Plant En-
gineer Bob Jackson and Personnel Manager Tommie
Graham, told Crosley that he wanted to discuss changes
in the plant and there were a lot of problems in the plant
that would require the maintenance department to work
16 hours a day, Monday through Saturday, and 10 hours
on Sunday. Crosley testified that Spencer then asked if
he could work those hours and Crosley replied, "Yes,"
that Spencer then asked if he would be willing to work
the hours and would like working the hours to which
Crosley replied he would not like working the hours but
would work them. Crosley testified that Spencer then
told him that he required employees who would work
the hours and "like doing it," and then told Crosley to
return to work and that he (Spencer) would contact him
later in the afternoon. Crosley testified that between 1:30
and 2 p.m. that afternoon, Spencer again called him into
his office and in the presence of Bob Jackson and
Graham and asked the same questions of Crosley who
respondend again that he would work the hours but
would not enjoy working them and that Spencer then
told him that he (Crosley) "would have to start looking
for another job because he needed people who would
work these hours and like it." At the point Crosley asked
Spencer if he wanted him to leave and Spencer said he
would and Crosley packed his tools and left.
Spencer testified that Crosley was laid off because he
refused to work the long hours necessary to improve the
Hot Springs facilities operation by repairing the equip-
ment and that Crosley "said that anyone that worked 12
hours a day was crazy." Crosley had never been previ-
ously disciplined by Respondent Alliance. The General
Counsel accurately points out in his brief that a review
of the payroll records from the date of Crosley's termi-
nation to the payroll period ending August 2, 1980,
shows that no employee of Respondent Alliance worked
as many hours as those referred to in Spencer's April 14
conversation with Crosley and cites General Counsel's
Exhibits 4(c) through (k) in support thereof.
ALLIANCE RUBBER CO 661
Analysis
Although I note the apparent conflict between the tes-
timony of Krenzelok and Crosley concerning whether
Crosley had advised Krenzelok that he had been contact-
ed by a union representative, I credit Krenzelok's recall
as the more reliable. Krenzelok testified that Crosley had
advised him at the start of a work shift that he had been
contacted by "somebody from a Union." Krenzelok had
previously furnished this information in an affidavit
given to a Board agent on June 27, 1980, and had placed
the date of this conversation in March. At the time of
the hearing, he was unable to recall the month of the
conversation but placed the conversation "towards the
first of the year" (1980). At the time of the hearing,
Krenzelok denied having informed Spencer of his con-
versation with Crosley. Krenzelok acknowledged that he
had stated in his affidavit that he did not remember
having related the incident to Spencer and that he was
unsure at the time of the affidavit whether he had related
the incident to Spencer. I find that Supervisor Krenze-
lok's knowledge of this incident, concerning Crosley's
having been contacted by a union, may be inferred to
Respondent Alliance. I also find it unlikely and do not
credit Krenzelok's testimony that he did not report the
incident to Respondent Alliance 's management. I note
his acknowledged lack of certainty whether he informed
Spencer of this incident . I note also his persistent inquiry
of employee Washington concerning her union card. I
credit Crosley's version of the events that occurred on
the date of his termination which were virtually unrebut-
ted by Spencer except for Spencer's testimony that Cros-
ley had stated that anyone who worked the hours in
question was "crazy." The circumstance under which
Crosley was terminated in mid -shift without any prior
warning or evidence of dissatisfaction with his services
as an employee on the ground that he would not like
working "16 hours a day, Monday through Saturday and
10 hours on Sunday" although he agreed to do so, are
bizarre and give rise to an inference that the discharge
was motivated by Respondent Alliance's desire to rid
itself of a perceived union adherent during the Union's
orgaizational campaign . I find that there was no credible
evidence of any legitimate business reason demonstrated
by Respondent Alliance for the termination of Crosley.
I find that Respondent Alliance had. knowledge of
Crosley's contact by a union representative and per-
ceived him to be a union adherent. I find that Respond-
ent Alliance's union animus has been shown by its nu-
merous violations of Section 8(a)(1) of the Act in its
effort to stem the Union's campaign. I find that the bi-
zarre circumstances and suddeness of the termination of
Crosley give rise to an inference that his termination was
to rid itself of a perceived union adherent. Accordingly,
I find that the General Counsel has made a prima facie
case that the discharge of employee Gary Crosley was
motivated by an unlawful purpose to discourage union
activity giving rise to a violation of Section 8(a)(3) and
(1) of the Act. I find that Respondent Alliance's asserted
defense that the discharge of Crosley was motivated by
his unwillingness to work extensive overtime is pretex-
tual and that Respondent Alliance has failed to rebut the
prima facie case . See Limestone Apparel Corp., 255
NLRB 722 (1981). I, therefore, find that Respondent Al-
liance violated Section 8(a)(3) and (1) of the Act by its
discharge of employee Gary Crosley on April 14.
D. The Termination of John Hutchinson
Hutchinson was employed as a laborer on the day shift
in January. Hutchinson testified that he last worked in
March, that he was absent from work as a result of ill-
ness for a period of 5 days and called in to report his
illness on the first day and that he asked a friend (Billy
R. Davis) to report his continuing illness the following 4
days. Davis testified that he reported the absence of
Hutchinson to Laura Fortenberry, secretary to Spencer,
for a period of several days. Davis placed this period in
April. Hutchinson testified that he reported back to work
on a Monday in March and was told by a lady (whose
name was unknown to him) that his job had been filled.
The payroll records reflect time worked by Hutchinson
during the 2-week payroll period ending April 26, For-
tenberry testified that Hutchinson did not show up for
work and that neither Hutchinson nor his friend Davis
contacted her in regard to Hutchinson's absence. Hutch-
inson was never asked to take a polygraph test nor does
the record reflect that he engaged in union activities or
that he was interrogated or identified by Respondent Al-
liance as a union adherent.
I credit the testimony of Fortenberry. I found Hutch-
inson to be vague in his testimony although Davis' testi-
mony was more specific than that of Hutchinson. I have
considered the long-term relationship of Hutchinson and
Davis and credit Fortenberry's testimony which I found
to be specific and positive. I also find that the General
Counsel has failed to prove that Respondent Alliance
had knowledge of or believed that Hutchinson engaged
in union activity or that he was otherwise identified as a
union adherent. The record contains no evidence that
would support a finding or an inference that Hutchinson
either was a union adherent or was perceived to be a
union adherent. See Complas Industries, 255 NLRB 1416
(1981). I also find no basis in the record which would
support a finding that Hutchinson's termination was con-
nected with, or part of the layoff of May 7. Accordingly,
I find that the General Counsel has failed to prove a
prima facie case of a violation of Section 8(a)(3) and (1)
with respect to the termination of Hutchinson and shall
recommend the dismissal of this allegation of the com-
plaint.
E. The Layoff of May 7
On May 7 , Spencer commenced to layoff 15 employ-
ees. The 15 employees were Atkins, Burris, Carter,
Healey, Hight , Hullinger , Martin, Oaks, Phillips, Ratliff,
Robertson (Rogul) Moessinger , Sullivan , Robert Walker,
and Washington . The employees were generally notified
to go to the office (either by a note attached to their
timecard or by their supervisor ) and were told by Spen-
cer in the presence of a uniformed guard that he was
sorry but he would have to lay them off until the new
GSA contract was received . In one instance , an employ-
ee was told directly by his supervisor that he was laid
off. The employees were encouraged by Spencer to file
662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
unemployment compensation claims . They were not told
why they were selected for layoff and were led to be-
lieve that the layoff was temporary and they would be
recalled as soon as the workload increased. In some in-
stances Spencer directly told the employees he wanted
them back.
Of the 15 employees laid off, all but 4 had been identi-
fied as union supporters through the interrogation by su-
pervisors of Respondent Alliance and by the polygraph
examinations or had refused to answer questions con-
cerning the Union. I credit the unrebutted testimony of
employee Rosie Martin who testified that only two sup-
porters of the union organizational campaign (Ilene
Hamilton and Debra Whitaker) were not laid off. I find
that Respondent Alliance had direct knowledge of the
Union's organizational campaign as a result of the inter-
rogations of its employees engaged in by its supervisiors
and by polygraph examiner Blankenship. As found supra
in this decision , I do not credit the testimony of Blanken-
ship and Spencer to the effect that Spencer had no
knowledge of the Union' s organizational campaign. I
also find that Respondent Alliance's union animus has
been established by virtue of the 8(a)(1) violations of the
Act engaged in by its supervisors, its vice president,
Spencer, and by Jackson and Blankenship whom I have
found to be agents of Respondent Alliance under Section
2(13) of the Act. I further find that the timing of the dis-
charge of May 7, the day following the completion of
the polygraph examinations on May 6, gives rise to an
inference of an unlawful discriminatory motive under the
Act. All but four of the employees laid off on May 7
were clearly identified as union adherents or as having
refused to inform on the union activities or sympathies of
their fellow employees in the course of the polygraph ex-
aminations . The employees laid off on May 7 were expe-
rienced employees. Several of the employees testified,
without rebuttal, that they had received praise from their
supervisors concerning their work performance, some
employees had been promised raises , and at least one of
these employees had been told he was being considered
for a promotion. Only one of the employees had re-
ceived a prior disciplinary warning that had occurred a
year prior thereto for failing to arrive at work on an in-
clement weather day. The General Counsel also present-
ed evidence that new employees had been hired shortly
before the layoff and were also hired during the summer
and fall of 1980. Accordingly, I find that the General
Counsel has proven a prima facie case of violations of
Section 8(a)(3) and (1) of the Act by Respondent Alli-
ance in its termination of the 15 employees on May 7.
Respondent Alliance asserts an economic defense and
contends that the layoff resulted from the conclusion of
work on two existing GSA contracts that accounted for
approximately 90 percent of the output of the Hot
Springs facility, the delay of GSA in soliciting bids and
awarding a successor contract on which Respondent Al-
liance depended for its continued workload an the build-
up of inventory, and the downward trend of the April
profit and loss statement and the consequent low cash
position of Respondent Alliance as viewed by Vice
President Spencer. Spencer testified that after reviewing
the above, he decided a layoff was necessary and that he
must terminate a number of employees. He testified that
he selected employees for layoff on the basis of their past
performance without consulting his supervisors but
rather by relying on his own knowledge of their per-
formance and on the basis of their willingness to perform
other jobs. None of the employees laid off was offered
the opportunity to perform another job. Spencer did not
testify concerning the job performance of any specific
employee or otherwise specify his reason for discharging
any specific employee. He testified that at the time of the
layoff, he had no knowledge of the Union's oganizational
campaign, or the involvement of any employee in union
organizational activities, drug, or marijuana usage or in
sabotage of Respondent Alliances property or equipment.
He testified that he had not received any information of
the results of the polygraph examination or inquiries
made by Blankenship.
Initially, when Spencer was called as a witness by the
General Counsel in this case , he maintained that the em-
ployees laid off on May 7 were laid off for economic
reasons with the intention to recall them as the workload
increased. During the summer and fall of 1980, new em-
ployees were hired while only three of the employees
laid off on May 7 were recalled during the summer. Hul-
linger was recalled in the fall of 1980. After lengthy ex-
amination of Personnel Manager Graham (who was
called as a witness by Respondent Alliance) concerning
the reason why new employees were hired by Respond-
ent Alliance in the summer and fall of 1980 rather than
recalling the laid off employees, she testified that she was
under the impression that the employees laid off on May
7 had been terminated. Spencer who had testified previ-
ously in the General Counsel's case took the stand in Re-
spondent Alliance's case after Graham, and on question-
ing by Respondent Alliance's counsel on redirect, Spen-
cer testified that although he had not reviewed the poly-
graph reports or been aware of the information con-
tained in them prior to the May 7 layoff, he subsequently
reviewed them and decided that he did not want the em-
ployees to come back to work as a result of the admis-
sions of their conduct on its premises. A review of the
polygraph reports does indicate that certain of the em-
ployees who were not recalled in the summer or fall of
1980 had admitted or been implicated by other employ-
ees in the use of marijuana on the premises and one em-
ployee admitted having dropped a knife into the machin-
ery although he stated that it was unintentional. The
recall of three of the employees in the summer and a
fourth employee in the fall occurred after the filing of
charges with the National Labor Relations Board con-
cerning the layoff. One of the three employees recalled
in the summer of 1980 was alleged by a fellow employee
in the course of a polygraph examination to have been
involved in the usage of marijuana. Spencer testified that
in December on the advice of counsel, he attempted to
recall the remaining employees who had been laid off on
May 7. It appears from the record that Respondent Alli-
ance was unsuccessful in contacting all the employees
prior to the hearing in this matter.
In assessing the economic defense submitted by Alli-
ance, I credit Spencer's testimony as supported by
ALLIANCE RUBBER CO 663
Robert Hatfield, Respondent' s sales and divisional man-
ager, and as supported by documents identified by Hat-
field (R. Exhs. 11 and 12-the two 1979 GSA contracts;
R. Exhs. 13-19-a series of five 1980 GSA contract bids
and correspondence) that there was an unexpected delay
in the award of the GSA contract and the unrebutted
testimony of Spencer that the vast majority of the work-
load for the Hot Springs facility was derived from the
GSA contracts. I also credit Spencer's testimony that the
inventory was high in May and that the April profit-and-
lost statement reflected a downward trend and a low
cash balance. I also credit Spencer's unrebutted testimo-
ny that the equipment was in need of repair. However, I
do not credit his testimony that the layoff was solely for
economic purposes. I find rather that the layoff of May 7
was motivated by Spencer's desire to stop the Union's
organizational campaign. Although I find that the evi-
dence presented by Respondent Alliance supports a find-
ing that a layoff for economic reasons was imminent, I
find that the layoff of May 7 would not have occurred
on that date in the absence of the discriminatory motiva-
tion of Respondent Alliance in its efforts to stop the
union campaign . I find that the timing of the layoff, a
single day after the completion of the polygraph exami-
nation , which examinations were utilized to ascertain the
identies of union supporters, leads to the logical conclu-
sion that this layoff would not have occurred on May 7
in the absence of an unlawful motive to stop the Union's
organizational campaign.
Moreover, assuming arguendo that the layoff was mo-
tivated by economic considerations, I further find that
the selection of the 15 employees was discriminatory and
was motivated by Respondent Alliance's identification of
the majority of them as union adherents. The identifica-
tion of these employees as union adherents appears to be
the common thread between them in their selection for
layoff. Spencer's stated reasons of the criteria utilized by
him in selecting these employees for layoff were unsup-
ported by any specific evidence. Moreover, the layoff of
experienced employees with no prior disciplinary records
and their replacement by inexperienced employees as oc-
curred in this case give rise to a logical inference that
the layoff was motivated by an effort to stop the Union's
campaign rather than by an effort to cut costs. Nor do I
credit Spencer's belated assertion at the culmination of a
10-day hearing in this case that he initially made the de-
cision to terminate or to refuse to recall all but four of
the employees laid off, after he read the polygraph re-
ports and discovered what they had been doing. Al-
though certain of the 11 employees who were not re-
called were implicated by themselves or by other em-
ployees in marijuana usage or in instances involving
damage to Respondent Alliance's property, at least one
of the three employees recalled in the summer was impli-
cated in drug usage in the polygiaph report of an exami-
nation by a fellow employee. Moreover, the summer and
fall recall of four of the employees occurred after the
filing of a charge in this case concerning the layoff. Ac-
cordingly, I find that the selection of most of the em-
ployees for the layoff of May 7 was motivated by Re-
spondent Alliance's desire to stop the union campaign
after they had been identified as union adherents. I fur-
ther find that the discharge of all the employees on May
7 was part of an overall scheme and pattern of discrimi-
nation by Respondent Alliance and find that Respondent
Alliance's discharge of employees who had not been
identified as union adherents does not support its agru-
ments that the layoff was not for discriminatory reasons.
See Hacienda Hotel & Casino, 254 NLRB 56 (1981).
I find that the prima facie case has not been rebutted
and that the layoff and selection of Atkins, Burris,
Carter, Healey, Hight, Hullinger, Martin, Oaks, Phillips,
Ratliff, Robertson, (Rogul) Moessinger, Sullivan, Robert
Walker, and Washington were motivated by Respondent
Alliance's desire to rid itself of supports of the Union's
organizaional campaign and that the layoff of May 7
would not have occurred at that point in time in the ab-
sence of this discriminatory motive. Assuming, however,
that the layoff of May 7 was conducted by Respondent
Alliance for a nondiscriminatory purpose, I find that the
selection of the discriminatees for layoff was motivated
by Respondent Alliance's desire to stem the Union's or-
ganizational campaign and the selection of these employ-
ees would not have occurred in the absence of such un-
lawful motivation. Accordingly, I find that Respondent
Alliance violated Section 8(a)(3) and (1) of the Act by
the conduct of the layoff of May 7 and by the selection
of the 15 discriminatees for layoff. See Wright Line, 251
NLRB 1083 (1980).6
F. The Termination of Barbara Rains
Rains testified she was employed in September by Per-
sonnel Manager Graham as a "feeder" on the second
shift and was transferred to the third shift after 2-1/2
weeks and reported to Harold Hughes and Cecil Bennett
Sr. After a few days, Hughes asked Rains if she would
be willing to learn to be a "cutter" as another employee
,.was running holes through the center (of the rubber
bands) and wasn't measuring often enough." Rains
agreed and the other employee was reassigned to the
feeder job and Rains was assigned to the "cutting" job.
Rains testified that a cutter is required to watch for holes
in the rubber as it comes out of the machine on a con-
veyor belt and check the rubber for sizing. If the condi-
tion of the rubber is satisfactory, it is allowed to run into
a barrel of water by the cutter. If it is not satisfactory it
must be removed, measured, cut, and bundled.
On October 28, Rains commenced work on the third
shift at 11 p.m. At that time the employee she relieved
told Rains that the "machine had been running offsize all
B Respondent contends that John Healey and Steven Robertson were
classified as Monsanto supervisors or helpers within the meaning of Sec
2(11) of the Act However, I find on the basis of the credible evidence
that they were rank-and-file employees with no indicia of supervisory au-
thority I credit the testimony of Supervisor Bill Walker that Healey had
no authority to discipline employees, that Healey was in training in April,
that Walker could recall no instance wherein Healey had effectively rec-
ommended discipline I also credit Healey's testimony that he had never
been told he was a supervisor, had never attended supervisory or man-
agement meetings and had never been told by management officials that
he had authority to discipline employees and had never exercised such
authority I also credit Robertson who testified that he had no authority
to hire and fire or to issue written warnings to employees, he had attend-
ed no management meetings and had not been told he was a supervisor.
See Maremont Corp, 239 NLRB 240 (1978)
664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
evening and to watch it close." Rains noted there was a
lot of rubber around and began to help clean it up. Tonia
Collier, a quality control employee, then asked Rains to
commence cutting. Rains testified that the second-shift
supervisors and Harold Hughes had been working on her
machine and told her "it was OK" so she commenced
cutting the rubber and a few minutes later Collier
checked the rubber bands for quality and told Rains she
"was running undercured zips" whereon Rains shut her
machine off. Rains was told not to run any more rubber
bands. Shortly thereafter (about 11:30 p.m.), she was told
to start operating again . She went back to work and her
machine was again shut down at 4 a.m. as it was not op-
erating properly. She was then told to clean up the
rubber bands. According to Rains, Hughes and Bennett
had been working on the machine all evening.
Approximately 5 a.m., Bennett told Rains he was
going to issue her a warning for the unsatisfactory
rubber bands she had run on the machine. At the end of
the shift Bennett gave Rains a written warning "for run-
ning undercured zips," required her to sign it, and gave
her a copy. Rains testified that Bennett told her that
other employees got warnings, which did not mean any-
thing and to be more careful and that the warning would
not be on her record after 6 months. Rains testified that
after she received the warning from Bennett, she went
into the office and talked to Graham who also told her
that the warning did not mean anything. Rains asked
Graham for a transfer at that time and Graham told her
there were no openings but agreed to transfer her when
there was an opening.
Rains testified that she had signed a union card on Oc-
tober 1 which she had received from Union Business
Representative Wendell Lee, had passed out union litera-
ture to employees the second week in October in the
breakroom, and had asked other employees to sign union
cards in the breakroom and away from the plant. She
testified she carried a union pen with the union name and
emblem thereon and used it in her work and distributed
union pens to other employees, was a member of an in-
plant union committee, that she had contacted an em-
ployee in the plant and given her union literature in the
presence of Bennett who was watching from a distance
of 10 feet, that she had attended a dozen union meetings
prior to her discharge, and had recorded employees'
names from their time cards. She also testified that she
asked employee Susan Clark to sign a union card the day
before her discharge, that Clark appeared frightened, im-
mediately left the breakroom and returned shortly there-
after, but would not talk to her. Clark served as the Em-
ployer's (Alliance) observer in a subsequent election.
Rains testified that, on October 31, Bennett ap-
proached her at her machine and asked her to follow
him into the office where he told her that he would
"have to let you go over that warning" as "we" had "re-
considered and Richard [Spencer] thinks you've been
here too long to make that kind of mistake." Rains testi-
fied she had no other difficulties prior to her discharge.
Rains was asked to sign a written notice of termination
by secretary Laura Fortenberry when she collected her
wages, which contained the reference, "terminated
during probation period." When Rains asked for a copy,
Fortenberry added the statement "for failure to learn
work properly" and had it approved by Bennett.
Bennett testified that he issued a written warning to
Rains on October 28 after it was called to his attention
by Tonia Collier that Rains had run undercured bands.
He testified that it normally takes 1 to 2 weeks to
become a cutter, that Rains repeatedly fell behind in her
work, and it was necessary to send other employees to
help her complete her work. Bennett testified that late in
October, Graham told the foreman if there were any
probationary employees who they did not think "would
make it," to let them go, and after this he terminated
Rains. He denied having observed Rains distribute union
literature or discuss the Union, denied knowledge of an
in-plant union committee, and testified he did not recall
having observed Rains hand an object or phamplet to an-
other employee. Bennett testified that he terminated
Rains for her inability to keep up with her work rather
than for the incident involving the undercured rubber
bands, that he talked to Rains about being slow prior to
the issuance of the warning but did not remember when
he did so. Bennett acknowledged that employees are
transferred from one job to another but that Rains was
not offered the opportunity to do so.
Employee Susan Clark testified she had been ap-
proached by Rains in the breakroom in the middle of
October concerning the Union and that Rains asked if
she would be interested in signing a card and she said
"No." Clark testified she did not tell the management of
Alliance or any supervisor about this but later told other
employees. Clark is the same employee who informed
Supervisor Krenzelok that employee Alberta Washington
had a union card. Clark later served as an election ob-
server for Respondent Alliance.
Graham testified that she did tell Rains that the first
warning notice did not "mean too much." She testified
that she talked to the first- and third-shift foreman the
morning of October 10 and told them to check their pro-
bationary employees and make sure they were qualified
and that Bennett told her that Rains would not make it
because she was too slow. She denied knowledge of
Rains' support of the Union or that Rains had engaged in
union activities.
Fortenberry testified that she prepared Rains' termain-
ation notice after Bennett told her he was terminating
Rains and the reason for the termination. Hughes was
not called to testify.
Tonia Collier testified that as a quality control employ-
ee, she receives bands from cutters that have been under-
cured between one and three times a month, that she has
observed undercured bands pass through more than one
cutter and that they sometimes pass quality control and
are caught by the packers. Rains also testified on rebuttal
that Bennett had never told her that she was working
too slow or that she was not keeping up with her work,
not did he ever tell her that she would be terminated.
Analysis
I credit Rains' testimony as set out above. I also credit
the testimony of Collier and Fortenberry. However, I do
not credit the testimony of Bennett that he was unaware
ALLIANCE RUBBER CO. 665
of Rains' union activities. I do not credit Graham's al-
leged conversation with Bennett. However, even assum-
ing it to be accurate, I do not find it determinative in as-
sessing the actions of Bennett in terminating Rains. I find
that Rains' testimony concerning her engagement in
union activities was unrebutted and was at least in part
corroborated by Clark who acknowledge that Rains had
asked her whether she would be interested in signing a
union card. I also find in view of the credited testimony
of Rains concerning her activities at the plant on behalf
of the Union, her use of a pen with the Union's name
and emblem thereon and her distribution of union litera-
ture to another employee in the presence of Bennett, that
Bennett had knowledge that Rains was an active union
adherent. See Riverfront Restaurant, 235 NLRB 319
(1978). I found Rains' testimony to be logical and gener-
ally consistent, with the exception of her initial reference
to her first meeting with Wendell Lee, which inconsist-
ency, I do not regard as damaging to her overall credi-
bility. Conversely, I found Bennett's testimony to be in-
consistent regarding his reasons f'or terminating Rains.
He initially testified that he terminated Rains because she
was too slow but not as a result of her having run under-
cured bands. However, he did not issue her a warning
for slow performance but rather for running undercured
bands. Subsequently, Bennett added another reason for
Rains' termination was because she had no confidence in
herself as a cutter because she had asked for a transfer to
another department. I found Rains' unrebutted testimony
as supported by Collier's testimony to show disparate
treatment by respondent Alliance of Rains. Thus, Rains
testified that she replaced another employee who was
not performing satisfactorily as it cutter and that the
other employee was transferred to the job of feeder.
Rains' testimony in this regard was unrebutted as Hughes
who initiated the transfer was not called as a witness.
Moreover, Collier testified without rebuttal that it is not
unusual for undercured rubber bands to be run past a
cutter and sometimes pass the quality control department
and be found by the packers. I also credit Rains' testimo-
ny that the machine she was operating was not function-
ing properly the night of the incident regarding the un-
dercured bands and that Bennett told her that her termi-
nation was for running undercured bands.
Under the above circumstances, I find that Respondent
Alliance's knowledge that Rains was a union adherent
may be inferred by reason of Bennett's observation of
her distribution of union literature to another employee,
and that Respondent Alliance's knowledge of Rains'
union activities may be inferred on the basis of the small-
plant rule given the small complement of third-shift em-
ployees (15). See Coral Gables Convalescent Homes, 234
NLRB 1198 (1978). I also find Respondent Alliance's
union animus has been demonstrated by its commission
of the violations of Section 8(a)(1) and (3) of the Act as
found in this proceeding. I find that the issuance of the
warning, on October 29, to Rains for running under-
cured rubber bands constituted disparate treatment of
Rains and that Respondent Alliance thereby violated
Section 8(a)(3) and (1) of the Act. I find that the dis-
charge of Rains by Respondent Alliance was motivated
solely by Respondent Alliance's attempt to rid itself of a
union adherent and constituted a violation of Section
8(a)(3) and (1) of the Act.7 I find Respondent Alliance's
asserted defense (that Rains was a slow worker) to be
pretextual . See Limestone Apparel Corp., cited supra.
G. The Termination of Debra Luker
Luker testified she was employed by Alliance as a
packer in December 1979. In February 1980, she suffered
a slight stroke, was absent from work approximately 2 or
3 weeks, and returned in mid-March. She worked until
June when she entered the hospital for surgery to allevi-
ate her high blood pressure. According to Luker, she
was called by Graham 4 weeks after her surgery in July
and Graham asked if she could return to work and
weigh 1 pound bags (a light task rather than the full
range of her normal duties). She called her doctor who
agreed, provided she did not stand or sit for 8 hours con-
sistently, did not stoop, bend, or lift or perform strenuous
work. She called Graham and related this information
and Graham approved her return to work under these
conditions and Luker reported to work that evening
(July 14) and presented Supervisor Cecil Bennett Sr. her
doctor's authorization to return to work with limitations.
Luker worked on the third shift (11 p.m. to 7 a.m.) and
when she completed her shift, Graham asked her to step
into her office and told Luker that it was unfair to the
other employees to allow her to perform only limited
tasks and that Graham preferred that she not return until
she had an unrestricted medical release and Luker then
left. Luker and hc_ husband, Ronald Luker, had lived in
a small house on the premises and Ronald Luker had
been employed as a part-time caretaker from January to
August. Both Debra and Ronald Luker were adminis-
tered polygraph examinations in April and both were in-
terrogated whether Ronald Luker (who was a member
of another union) was attempting to organize a union at
Alliance. Both Debra and Ronald Luker denied any such
attempt and Debra Luker told the examiner she was not
in favor of a union at Alliance. Debra Luker also per-
formed babysitting for the children of Spencer.
Luker and her family moved from the premises in
August and she subsequently received a letter from
Graham inquiring whether she was going to continue
working at Alliance. She testified she called Graham and
told her that she had a medical release to return to work
August 17, but that it contained restrictions and she
could not perform the full range of her duties as she
could not lift, strain, or perform strenuous work and that
Graham had asked her to bring her medical release,
which she did. Graham asked if she intended to report
that night and she said yes. Graham informed her that
Cecil Bennett Sr. would be her supervisor. The medical
release that Luker presented to Bennett in August con-
tains no restrictions (R. Exh. 10). On cross-examination
' It should also be noted that Respondent Alliance argues that the
filing of an unemployment claim and an unfair labor practice charge by
Rains alleging that her termination was in retaliation for her union activi-
ties immediately after her termination is detrimental to her credibility as a
witness I do not find this argument to be relevant and do not view the
timely filing of unemployment claims and an unfair labor practice to give
rise to any inference detrimental to the credibility of Rains
666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
by Alliance counsel , Luker testified she had requested
that her doctor omit those restrictions in order that she
could return to work and she would watch what she did.
Luker reported on the third shift and there was no work
for packers, so she was assigned to cutting work. She
testified she attempted to retrieve a piece of rubber that
was caught in the machine and injured her stomach mus-
cles. She reported the injury to Bennett who indicated
his concern that she wanted to go home because she did
not like the job she was assigned to. She denied this and
Bennett told her that if she left, she would be required to
bring a doctor's statement to return to work and she
agreed to continue to work as long as she was able to do
so. Around 5 to 5:30 a.m., she told Supervisor Harold
Hughes that she was in pain and would take her break
then and if she did not return in 10 minutes she would
have gone home. Luker testified she continued to feel ill
and went home.
Luker further testified that a few days later Graham
telephoned her and told Luker that her doctor had in-
formed Graham that Luker could work. Luker replied
that the doctor's statement showed that she should rest.
Graham told her that she (Luker) had been issued a
warning for leaving work without permission. Luker
protested that Hughes had given her permission. At that
point, Luker told Graham she would take a voluntary
layoff and would seek another job until the packing
work picked up. According to Luker, Graham agreed to
recall her to work when the packing work picked up.
Luker testified that she commenced work as a waitress
at a restaurant in August and approximately early to
mid-September, she returned to Alliance to pay the re-
mainder of rent due on the house she had previously oc-
cupied on the premises and that, when she entered,
Laura Fortenberry (Spencer's secretary) asked if she had
quit her job at Alliance and she (Luker) replied no, that
she was waiting for the packing work to increase and
had been promised her job back by Graham; that
Graham then came in and said packing work was slow
but she would recall Luker when it increased; that Spen-
cer asked her into his office and she discussed the pend-
ing unfair labor practice charge. She informed Spencer
that she and her husband had been contacted to serve as
witnesses concerning the layoff and the signing of union
cards. Spencer asked what she meant and she told him
she was referring to the layoff of people involved with
the Union. She also told Spencer that security guard
Freeman had told her husband, Ronald Luker, and her-
self that most of the employees who were laid off had
been laid off as a result of their union activities. This
statement is confirmed a number of employees had been
laid off because they had signed union cards or had
smoked "pot" (marijuana) on the premises. Freeman tes-
tified and denied having made such a statement . I credit
Debra and Ronald Luker and do not credit Freeman's
denial. Debra Luker testified that spencer laughed when
she told him of Freeman's statement, said it would be
difficult to prove, that Freeman was "not supposed to
open his mouth" and that he (Spencer) would contact
Blankenship and inform him of this. Spencer told her he
appreciated the information and to apprise him if she
heard anything else and that she should tell Graham
when she was ready to return to work and she would
have a job.
Luker testified that in October or November she had a
conversation with Cecil Bennett Jr. (a rank-and-file em-
ployee of Alliance who is the son of Cecil Bennett Sr.)
and that Bennett told her that "Tommie Graham is doing
you dirty" and that she would "be better off to quit."
Luker testified she replied that she liked the job and
liked Spencer and did not tell Bennett that she had quit
her job but did tell him there were times she wanted to
quit. Luker signed a union card solicited by Rains of Jan-
uary 5, 1981. Luker testified she had a second conversa-
tion with Cecil Bennett Jr. at the Alliance plant either
the same night or the following night after she signed a
union card. She testified that Bennett told her she had
left the plant at a good time because it was in turmoil
concerning the Union; that she informed him she was
supporting the Union and asked him whether he had
signed a card and he told her he had been approached
but could not sign a card.
Luker testified that on January 8, 1981, she returned to
the plant and handed Graham a doctor's statement to
return to work and Graham stated that she (Luker) "had
quit" and Luker replied that she had not, whereon
Graham stated that the packing work had not increased
and walked away. This medical release contains a restric-
tion (pulling her stomach muscles). Luker testified that
she was employed at the restaurant from August to De-
cember 1980. On January 19, 1981, Graham sent Luker a
certified letter from Alliance informing her that her em-
ployment had been terminated in September after she
had taken another job.
Cecil Bennett Sr . testified that in mid-July 1980, Luker
returned to work for one shift with limitations on her
ability to work and told him that Graham had aproved
her weighing 1-pound bags, that he informed Graham
the next morning and that Graham called Luker into her
office and discussed it. Bennett testified that Luker next
reported to work on August 17 and presented him a
medical release to return to work without restrictions
and he assigned her to do cutting. He testified that an
hour and a half later, she informed him she had a cold
and asked to leave work and that he informed her he
wanted her to continue working and she agreed . Howev-
er, she left during a break and he inquired of Hughes
whether he (Hughes) had seen her or had given her per-
mission to leave and Hughes replied in the negative.
Hughes did not testify. The next morning Bennett issued
a written warning to Luker for leaving work without
permission . Luker did not return to work and Bennett
issued her a second warning on August 24 and a third
warning and a 3-day layoff on August 25. He testified
that Luker has never returned to work on the third shift
nor has she contacted him.
Graham testified that when she returned to work as a
supervisor of the packing operation in November 1979,
Debra Luker was a feeder and 5 or 6 weeks later Luker
asked her for a transfer to the packing operation and
Graham put her on the second shift when an opening oc-
curred. Subsequently, Luker asked if she could work a
split second and third shift and Graham agreed. In May
ALLIANCE RUBBER CO. 667
and June, Luker had an operation and did not return to
work until July 14 or 15 when Graham came in to work
and was apprised by Cecil Bennett Sr. that Luker had a
restricted medical release, that she called Luker into her
office and told her there was no job that she could per-
form with the restrictions on her activity and Luker left.
Graham testified she did not recall any prior conversa-
tions with Luker prior to her return on July 14. Graham
testified she had previously asked her to move from the
house on the premises of Alliance as Ronald Luker was
not keeping up with the caretaking work and Debra
Luker was unable to babysit for Spencer. Graham testi-
fied that the Lukers moved and left no forwarding ad-
dress or phone. After a period of 2 or 3 weeks, Graham
wrote Luker a letter informing her that she would be
terminated if she did not contact her or return to work.
Shortly thereafter, Luker called Graham and told her
she would return to work the following Sunday and that
she had received a doctor's release with no limitations
(R. Exh. 10). On the morning of August 18, she was in-
formed by Bennett that Luker had reported for work
and left without permission . Luker called Graham who
informed her about the 3-day layoff. During this period,
Norma Hibbs, who works in the Alliance office, report-
ed having seen Luker working as a waitress in a restau-
rant in the latter part of August when Graham was
trying to locate her and that Luker told her she enjoyed
her work as a waitress. Hibbs testified she informed
Graham of this the next workday. Graham testified that
shortly thereafter in the latter part of August, Luker
came by the office and told Graham that she was a wait-
ress at a restaurant and Graham congratulated her.
Graham testified there was no discussion whether Luker
had quit her job with Alliance although she (Graham)
assumed she had. After Luker left on this occasion,
Laura Fortenberry (Spencer's secretary) asked whether
Luker had quit and Graham replied that the matter had
not been discussed. Graham testified that a week later,
Fortenberry told her that Luker had quit and that
Graham could sign the termination papers which Forten-
berry had filled out and Graham signed. The termination
form is dated September 5, 1980.
Graham testified she next saw Luker in early January
1981 when Luker handed her a doctor's release which
contained a restriction. Graham exclaimed to Luker at
that time, "Debra you quit." Luker stated she had not
quit, asked for a copy of the release and left. On January
19, 1981, Graham sent Luker the letter stating that her
employment had been terminated on September 5.
Fortenberry testified that she had told Graham on July
15 that the insurance carrier for Alliance had informed
her that it was not advisable to employ someone with
medical restrictions on her ability to work in a factory,
that Graham agreed and talked to Luker. Fortenberry
also testified that on September 5, Luker came to the
office window to pay the remainder of her rent bill and
informed her that she was working at a restaurant and
stated, "Since I've quit, I feel much better" and that
Luker then asked to see Spencer and went in his office
and talked to him for a short time. Fortenberry testified
that after Luker left on September 5, she called Graham
in the plant and informed her that Luker had quit and
then filled out the termination form and Graham signed
it. Fortenberry testified that in January after Luker came
to the office and denied she had previously terminated
her employment, the matter was discussed with legal
counsel and a decision was made to verify the termina-
tion by letter.
Tonia Collier testified that in the latter part of July or
early August 1980, Graham told the packers that Luker
was returning to work and would be restricted to weigh-
ing 1-pound bags and they agreed and that Luker re-
turned to work the night after this conversation and the
following day Graham called her (Collier) into the office
and told her that it was not fair to her and Chandler (to
allow Luker to restrict her work). Collier testified to a
later conversation with Graham in the latter part of
August or early September during which Graham told
her and Helen Johnson that Luker would be the "lead
lady" on the "grave yard" shift for "autopack."
Cecil Bennet Jr. testified that in November or Decem-
ber 1980, Debra Luker told him that "she had quit her
job and was a waitress at Pablos' Restaurant and was
going to see that the Company (Alliance) got what it de-
served." He testified that he had a further conversation
with Debra Luker a few days before January 14, 1981,
when Luker approached him at work between the main-
tenance shop and the main building and told him, she
was there to solicit employees' signatures of union cards
and asked him to sign a card. Bennett declined to sign a
card. Bennett testified that Luker told him she had ob-
tained 15 signed cards that day. He testified he told his
foreman, Lynn Chambers, about this within the next day
or two. Bennett was later recalled as a witness and testi-
fied his conversation with Debra Luker occurred 2 days
prior to January 14, which was the date his sister com-
menced work at Alliance.
Spencer testified on direct examination concerning his
conversation with Debra Luker on September 5, that he
asked her vvhat she meant in response to the information
that Ronald had been asked by a union to testify against
Alliance and that Luker also told him she received a
phone call from Debra (Rogul) Moessinger who had in-
formed her she had been laid off because she had signed
a union card and that he (Spencer) then said, "I don't
know what 's going on." Spencer testified that the fore-
going was "all I recall off hand." He denied having re-
quested Luker to keep him informed about the Union.
He denied telling Luker that she had a job at Alliance.
Analysis
I credit Luker's testimony that Graham had agreed to
allow her to weigh 1-pound bags as corroborated by
Collier's testimony rather than Graham's lack of recall. I
also credit :Fortenberry's testimony that she called the in-
surance considerations to Graham's attention with re-
spect to Luker working in the plant with medical restric-
tions. It appears that this was the primary consideration
in Graham's decision to refuse to allow Luker to contin-
ue to work on a restricted basis, although I credit Col-
lier, Luker, and Graham that Graham actually told
Luker and Collier that this would be unfair . I also credit
Luker's testimony that after her absence in August and
668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Graham's inability to find her, Graham did consent to a
voluntary layoff for Luker until the packing work picked
up, which testimony is corroborated in part by Collier's
testimony that Luker would be "lead lady" when the
"autopack" work increased. Moreover, Graham did not
specifically deny that she had consented to a voluntary
layoff or that she agreed to recall Luker when the pack-
ing work increased. It is undisputed that Luker appeared
at the Alliance office on September 5 and that there was
a discussion between herself and Fortenberry. I do not
credit Fortenberry's testimony that Luker told her she
had quit her job and she (Fortenberry) apprised Graham
of this and prepared a termination form for Graham's
signature. I also do not credit Graham's testimony that
she was apprised by Fortenberry that Luker had in-
formed her she had quit her job with Alliance and that
she (Graham) signed Luker's termination form on the
basis of this information, particularly in view of Gra-
ham's own testimony that she was not certain that Luker
had terminated her employment as a result of her previ-
ous conversation with Luker concerning Luker's own
job. I credit Bennett's testimony that Luker left work
without permission on the night of August 17 after
having complained of a cold. I do not credit Luker's tes-
timony that she received permission to do so from
Hughes although Hughes did not testify. If this had oc-
curred, I find it unlikely that Bennett would have issued
her a warning for leaving work without permission. It is
also undisputed that Luker had been issued three warn-
ings and a suspension for failing to report to work, prior
to her voluntary layoff. However, by all accounts
Luker's relationship with Alliance representatives Spen-
cer and Graham was cordial and by Luker's own unre-
butted account, she had not been a union supporter as of
September 5. It appears that, notwithstanding her ab-
sences, Luker was a valued employee who was on ex-
ceedingly good terms with Alliance's managemnt until
September 5. Thus as Collier testified Graham had re-
served an opening for Luker on the autopack position as
"lead lady" and had refrained from training another em-
ployees. Whether this changed as a result of Luker's dis-
closure to Spencer on September 5 that she and her hus-
band had been contracted by union representatives to be
witnesses in the pending unfair labor practice charge and
her disclosure to Spencer of Freeman's statement regard-
ing the reason for the layoff is difficult to assess. Howev-
er, I do not credit the testimony of Respondent's wit-
nesses Graham or Fortenberry that they believed that
Luker had "quit" her job at Alliance. I do not credit
Bennett's testimony that Luker told him she had quit her
job. It is undisputed that Luker was not recalled by Alli-
ance prior to her reappearance on January 8. There is no
evidence in the record of any prior effort on her part to
return. Thus, until Luker's effort to return to work on
January 8, the evidence is insufficient to show a violation
of the Act. I credit Luker's version that on January 8,
Graham told her that she had "quit" and on being ad-
vised by Luker that she had not done so, then told
Luker that the autopack work had not increased. I credit
Luker's recall of the date of her January conversation
with Luker to his foreman, Lynn Chambers. There was
no evidence of any business justification presented by
Respondent Alliance for excluding Luker from either re-
instatement or reemployment (assuming arguendo that
representatives of Respondent Alliance actually believed
Luker had terminated her employment on September 5)
by the issuance of its January 19 letter. Rather, the evi-
dence showed that Respondent had rehired at least one
former employee (Oaks) prior to the May 7 layoff and
Luker was apparently considered a valued employee by
all accounts previously in view of Graham's holding her
job open and Spencer's promise of a job when she was
ready to return to work. It appears that the real reason
for the the letter of January 19 to Luker was to prevent
the return of an employee who was not known by Re-
spondent Alliance to be a union supporter, a continuation
of Respondent Alliance's antiunion campaign . These cir-
cumstances clearly support an inference that the foreclo-
sure of Lukers reinstatement or reemployment at Alli-
ance was motivated by an unlawful purpose to discour-
age her return because of her prounion sympathies rather
than a concern for her medical restriction or a genuine
belief that she had voluntarily terminated her employ-
ment of September 5. Under these circumstances, I find
that Respondent Alliance violated Section 8(a)(3) and (1)
of the Act by reason of its refusal to return Debra Luker
to work on January 8, 1981. See Pillowtex Corp., 187
NLRB 693 (1971).
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The unfair labor practices, as found in section II, in
connection with the business of Respondent Alliance
Rubber Company as set forth in section 1, above, have a
close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and lead to dis-
putes obstructing the free flow of commerce.
CONCLUSIONS OF LAW
1. Respondents Alliance Rubber Company and West-
ern Security, Inc. are employers engaged in commerce
within the meaning of Section 2( 6) and (7) of the Act.
2. UBC, Southern Council of Industrial Workers,
United Brotherhood of Carpenters and Joiners of Amer-
ica, AFL-CIO is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Robert A. Blankenship d/b/a W.C.S Polygraph Di-
vision was an agent of Respondent Alliance Rubber
Company within the meaning of Section 2(13) of the Act
at all times relevant here and an employer by reason of
his commission of violations of the Act on behalf of Re-
spondent Alliance Rubber Company within the meaning
of Section 2(2) of the Act.
4. By coercively interrogating the employees of Alli-
ance Rubber Company concerning their union activities
and the union activities of other employees and by
threatening these employees with loss of their jobs and
other economic reprisals if they refused to inform on
their fellow employees' involvement in union activities in
the course of the administration of polygraph examina-
tions , Robert A. Blankenship d/b/a W.C.S. Polygraph
Division has violated Section 8(a)(1) of the Act and by
the aforesaid acts of its agent Robert A. Blankenship,
ALLIANCE RUBBER CO
Respondent Alliance Rubber Company has violated Sec-
tion 8(a)(1) of the Act.
5. By the coercive interrogation and threats of eco-
nomic reprisals carried out by its supervisors and agents,
Respondent Alliance Rubber Company has violated Sec-
tion 8(a)(1) of the Act.
6. By discharging, and thereafter failing and refusing
to reinstate its employee Gary Crosley, Respondent Alli-
ance Rubber Company had violated Section 8(a)(3) and
(1) of the Act.
7. By discharging, and thereafter failing and refusing
to reinstate its employees Jerry Atkins, Lurene Burris,
Johnny Carter, John Healey, Hazel Hight, Kevin Hul-
linger, Rosie Martin, Michael Oaks, Clara Phillips, Judy
Ratliff, Steven Robertson, Debra (Rogul) Moessinger,
Louise Sullivan, Robert Walker, and Alberta Washing-
ton, Respondent Alliance Rubber Company has violated
Section 8(a)(3) and (1) of the Act.8
8. By refusing to reinstate or reemploy Debra Luker
on January 8, 1981, Respondent Alliance Rubber Compa-
ny has violated Section 8(a)(3) and (1) of the Act.
9. By issuing a written warning, notice to its employee
Barbara Rains , and by discharging, and thereafter failing
and refusing to reinstate employee Barbara Rains, Re-
spondent Alliance Rubber Company has violated Section
8(a)(3) and (1) of the Act.
10. Respondent Alliance Rubber Company did not
violate the Act with respect to the termination of em-
ployee John Hutchinson.
11. Respondent Alliance Rubber Company did not
violate the Act with respect to the conversation between
its Supervisor Billy Wayne Walker and employee Debra
Whitaker concerning the reason for layoffs of May 7,
1980, or with respect to the alleged instruction by Fore-
man Lynn Chambers to an employee to i eport instances
of union solicitation.
12. The General Counsel has failed to allege or prove
any independent violations of the Act by Respondent
Western Security, Inc. The General Counsel has failed to
prove that Western Security, Inc. and Robert A. Blan-
kenship d/b/a W.C.S. Polygraph Division are a single
enterprise or the alter ego of the other.
13. The unfair labor practices,9 as found above, have
an effect on commerce within the meaning of Section
2(6) and (7) of the Act.' 0
8 The listed individuals were laid off by Respondent Alliance Rubber
Company on May 7, 1980 Three of these individuals were recalled to
work in the same summer of 1980 One was recalled to work in the fall
of 1980 and others were recalled to work in December 1980 At the time
of the hearing , certain of these employees had not been returned to em-
ployment with Respondent Alliance Rubber Company , I make no deter-
mination whether these employees had been recalled by Respondent Alli-
ance Rubber Company to return to work I also make no determination
whether any of the recalled employees were recalled to substantially
similar positions
9 Counsel for the General Counsel's motion to receive late filed G C
Exhs 53 (a) through in evidence is granted and the exhibits are received
in evidence Counsel for Respondent Alliance's motion to file supplemen-
tal R Exhs 90(a) and (b) is granted and the exhibits are received in evi-
dence
10 Respondent Alliance's request in its brief that I reconsider my sepa-
rate orders of February 11, 1981 , to revoke certain subpoenas duces
tecum filed by Respondent Alliance and denying Respondent Alliance's
motion to strike and for a bill of particular s and its motion for production
of exculpatory matters is denied
THE REMEDY
669
Having found that Respondent Alliance Rubber Com-
pany has violated Section 8(a)(3) and (1) of the Act, it
shall be ordered to cease and desist therefrom and from
any other unlawful activity and to take certain affirma-
tive action designed to effectuate the policies of the Act,
including the posting of the appropriate notice. Respond-
ent, Alliance Rubber Company, shall be ordered to offer
employees Jerry Atkins, Lurene Burris, Johnny Carter,
Gary Crosley, John Healey, Hazel Hight, Kevin Hul-
linger, Debra Luker, Rosie Martin, Michael Oaks, Clara
Phillips, Barbara Rains, Judy Ratliff, Steven Robertson,
Debra (Rogul) Moessinger, Louise Sullivan, Robert
Walker, and Alberta Washington full reinstatement to
their former positions with backpay and benefits, with
loss of earnings and other benefits to be computed in the
manner prescribed in F. W. Woolworth, 90 NLRB 289
(1950), and Florida Steel Corp., 231 NLRB 651 (1977)."
Having found that Robert A. Blankenship, an individ-
ual d/b/a W.C.S. Polygraph Division has committed
violations of Section 8(a)(1) of the Act, he shall be or-
dered to cease and desist therefrom and from any other
unlawful activity and to post the appropriate notice in
order to effectuate the purposes of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'2
ORDER
A. Respondent Alliance Rubber Company, Hot
Springs, Arkansas, its officers, agents , successors, and as-
signs, shall
1. Cease and desist from
(a) Coercively interrogating its employees concerning
their union sympathies and activities and the union sym-
pathies and activities of other employees and threatening
the employees with loss of their jobs or other economic
reprisals if they refuse to inform on the union activities
and sympathies of their fellow employees.
(b) Threatening its employees with loss of their jobs or
other economic reprisals if they support or assist the
Union or choose as their collective-bargaining represent-
ative the Union or any other labor organization.
(c) Discouraging membership in a labor organization
by issuing warnings , laying off, discharging, refusing to
reinstate or reemploy in timely fashion, or to reinstate at
all or otherwise discriminating against employees in their
hire and tenure.
(d) In any other manner interfering with, restraining,
or coercing employees in the exercise of rights guaran-
teed them under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
11 See generally Ices Plumbing Co, 138 NLRB 716 (1962)
12 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a) Offer to Jerry Atkins, Lurene Burris, Johnny
Carter, Gary Crosley, John Healey, Hazel Hight, Kevin
Hullinger , Debra Luker, Rosie Martin , Michael Oaks,
Clara Phillips, Barbara Rains , Judy ratliff, Steven Rob-
ertson, Debra (Rogul) Moessinger, Louise Sullivan,
Robert Walker, and Alberta Washington immediate and
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed, and make them whole for any
loss of earnings and other benefits suffered as a result of
the discrimination against them, in the manner set forth
in the remedy section of the decision.
(b) Make the employees named above in paragraph (a)
whole for any loss of pay or other benefits they have
sustained by reason of the discrimination against them in
the manner set forth in the remedy section of this deci-
sion.
(c) Withdraw the written warning issued on October
29, 1980, from the personnel record of Barbara Rains and
correct its records accordingly.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its Hot Springs, Arkansas, facility, copies of
the attached notice marked "Appendix A."13 Copies of
the notice, on forms provided by the Regional Director
for Region 26, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(f) Post at its Hot Springs, Arkansas, facility, copies of
the attached notice marked "Appendix B" upon delivery
of signed copies by Respondent Robert A. Blankenship
d/b/a W.C.S. Polygraph Division. Observe the same
conditions as set out above regarding the posting of "Ap-
pendix A."
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
Alliance Rubber Company has taken to comply.
B. Respondent Robert A. Blankenship d/b/a W.C.S.
Polygraph Division, his agents , successors, and assigns,
shall
13 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
1. Cease and desist from
(a) Coercively interrogating employees of Respondent
Alliance Rubber Company concerning their union sym-
pathies and activities and the union sympathies and ac-
tivities of other employees and from threatening the em-
ployees with loss of their job or other economic reprisals
if they refuse to inform on the union sympathies and ac-
tivities of their fellow employees
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Sign and deliver copies of the attached notice
marked "Appendix B" to Alliance Rubber Company for
posting at its facility in Hot Springs, Arkansas.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
Robert A. Blankenship d/b/a W.C.S. Polygraph Divi-
sion has taken to comply.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed with respect to the termination of John Hutch-
inson, the alleged 8(a)(1) violation concerning the con-
versation between Supervisor Billy Wayne Walker and
Debra Whitaker and the alleged instruction by Foreman
Lynn Chambers to an employee to report instances of
union solicitation and insofar as it otherwise alleges vio-
lations of the Act not specifically found.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
I WILL NOT coercively interrogate employees of Alli-
ance Rubber Company concerning their union member-
ship, activities, or support and that of other employees.
I WILL NOT threaten employees of Alliance Rubber
Company with loss of their jobs or other reprisals be-
cause of their refusal to inform on the union activities or
sympathies of their fellow employees.
I WILL NOT in any other manner interfere with, re-
strain, or coerce the employees of Alliance Rubber Com-
pany in the exercise of their rights guaranteed by Section
7 of the National Labor Relations Act.
ROBERT A. BLANKENSHIP D/B/A W.C.S.
POLYGRAPH DIVISION