Ghr Energy Corp.

National Labor Relations Board - Board Decisions

Jun 13, 1989

294 N.L.R.B. 1011 (N.L.R.B. 1989)

GHR ENERGY CORP
GHR Energy Corp . and Oil , Chemical and Atomic
Workers International Union , and its Local 4-
447 and GHR Energy Corp . and TCP Construc-
tion Co ., Inc. and Oil, Chemical and Atomic
Workers International Union , and its Local 4-
447. Cases 15-CA-7563, 15-CA-7655, 15-CA-
7708, 15-CA-7768, 15-CA-7836, 15-CA-7887,
15-CA-7951, and 15-CA-8088
June 13, 1989
DECISION AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND DEVANEY
On June 16, 1986, Administrative Law Judge
Leonard M. Wagman issued the attached decision.
The Respondent filed exceptions and a supporting
brief, the General Counsel and the Charging Party
each filed limited exceptions and a supporting brief,
and the Respondent filed answering briefs.I
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
conclusions3 only to the extent consistent with this
'The Respondent has requested oral argument The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties See fn 22, infra
2 The General Counsel and the Respondent 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
We correct three inadvertent errors of the judge First, in the fourth
from the last paragraph of sec III,B ,2 of his decision the judge incorrect-
ly referred to art XIII, sec 12 of the 1978 collective-bargaining agree-
ment rather than to art XII, sec 13 Second, in the second from the last
paragraph of the same section of his decision, the judge incorrectly re-
ferred to art XX rather than to art XXV Third, the judge, notwith-
standing his finding in sec III,I,1 of his decision, omitted the name of
Martin L Ware from pars 2(a) and (b) of his recommended Order
These inadvertent errors do not affect the conclusions reached in this
case
We note that the judge's findings, based on Meyers Industries, 268
NLRB 493 (1984) (Meyers I), remanded sub nom Prt!l v NLRB, 755 F 2d
941 (D C Cir 1985), about the presence or absence of concerted activi-
ties are consistent with Meyers II, 281 NLRB 882 (1986), enfd sub nom
Prill v NLRB, 835 F 2d 1481 (D C Cir 1987) Member Johansen, who
did not participate in Meyers, agrees the activity was within Sec 7 Nei-
ther the General Counsel nor the Charging Party excepted to the judge's
dismissal of the allegations that the Respondent 's unilateral termination of
the training and "breaker day" programs violated Sec 8(a)(5) of the Act
' In his decision and at par 9(1) of his Conclusions of Law, the judge
finds, inter alia, that the Respondent violated Sec 8(a)(5) by unilaterally
rescinding art XXXVI, sec 2 of the 1978 collective-bargaining agree-
ment, under which a bargaining unit employee was entitled to union rep-
resentation on request at any stage of the disciplinary procedure directed
toward him, including the investigatory stage A rescission covering all
situations to which this contractual provision might apply was not al-
leged in the complaint The record evidence at most would support a
finding that the Respondent breached art XXXVI, sec 2, on February
22, 1981, in setting the conditions under which employees were required
1011
Decision and Order, to modify the remedy,4 and to
adopt the recommended Order as modified.5
1. The judge found that the Respondent violated
Section 8(a)(3) of the Act by withholding contrac-
tual sick leave benefits from two disabled employ-
ees during the March 1-April 14, 1980 strike for
the periods in which they were otherwise eligible
for the benefits. In doing so, the judge relied on
Emerson Electric Co., 246 NLRB 1143 (1979), and
Conoco, Inc., 265 NLRB 819 (1982). In agreeing
with the judge's finding, however, we rely on our
decision in Texaco, Inc., 285 NLRB 241 (1987),
which issued subsequent to the judge's decision,
and which modified the applicable test.
In Texaco, the Board held that the lawfulness of
discontinuing benefit payments to disabled employ-
ees on commencement of a strike will be resolved
by application of the test set forth in NLRB v.
Great Dane Trailers, 388 U.S. 26 (1967). Thus, the
General Counsel can meet the Great Dane burden
of showing an adverse effect on employee rights by
showing that a benefit withheld because of a strike
was an accrued benefit. At that point the employer
may be able to defend its action by showing that it
had a legitimate and substantial business justifica-
tion for cutting off the benefits, such as an explicit
waiver by the union or the employer's reliance on
a nondiscriminatory contract interpretation that is
reasonable and arguably correct. See Texaco, supra
at 245-246.
Applying these principles to the evidence in this
case, we note with respect to the General Coun-
sel's prima facie case that the Respondent does not
challenge the judge's finding, fully supported by
the record, that the benefits withheld from employ-
ees Seals and Williams were accrued.6 Further, the
Respondent offers no defense cognizable under
Texaco. Accordingly, we agree with the judge that
the Respondent violated Section 8(a)(3) of the Act
by withholding sick leave benefits from employees
Seals and Williams during the 1980 strike.
to submit to a polygraph test In these circumstances, we find, contrary
to the judge, that this issue has not been fully litigated Accordingly, we
shall amend the judge's Conclusions of Law by deleting this portion of
par 9(f) This deletion does not affect the validity of the judge's conclu-
sions, discussed below, that other actions of the Respondent with respect
to the polygraph program violated Sec 8(a)(5) and (1)
4 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set forth in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 US C § 6621) shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
5 In light of the record evidence that the Respondent closed its Good
Hope, Louisiana facility in 1983, we modify the judge's recommended
Order to require the mailing of copies of the notice to all unit employees
employed at the time of closing
6 See sec 111,A, 1, especially fn 5, of the judge's decision
294 NLRB No. 76
1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. The judge found that the Respondent violated
Section 8(a)(5) during the 1980 strike by not notify-
ing the Union or offering to bargain over its deci-
sion to enroll strike replacements in a health insur-
ance program under terms different from those
provided for in the expired contract.' We disagree.
It is well settled that struck employers have no ob-
ligation to bargain about employment terms for re-
placements during the course of an economic
strike. Capitol-Husting Co., 252 NLRB 43, 45
(1980), enfd. 671 F.2d 237 (7th Cir. 1982); Imperial
Outdoor Advertising, 192 NLRB 1248,1249 (1979),
enfd. 470 F.2d 484 (8th Cir. 1972).8 Accordingly,
we shall dismiss this allegation.
The judge also found that the Respondent violat-
ed Section 8(a)(5) after the strike ended by creating
a wage disparity between those replacements trans-
ferred after the strike from operator' l to operator 2
positions and those former strikers returning to
their operator 2 positions.9 The Respondent contin-
ued to pay those replacements the higher operator
1 wage rate while paying the former strikers em-
ployed as operators 2 at the lower operator 2 rate.
We find no merit in the Respondent's exceptions
and agree with the judge for the reasons set forth
by him. However, we will modify the judge's rec-
ommended remedy by requiring the Respondent to
make whole its employees who after the strike re-
turned to their operator 2 positions for any losses
suffered as a result of the unlawful unilateral
changes in accordance with Talbert Mfg., 258
NLRB 776, 782 (1981), and Sinclair Glass, 188
NLRB 362 (1971).
3. We agree with the judge's findings that the
Respondent violated Section 8(a)(5) and (1) by uni-
laterally issuing its May 21, 1980 "Policy Statement
on Disloyalty" 10 and thereby imposing excessively
broad restrictions on employee "actions and state-
ments" protected under Section 7 of the Act, be-
cause they could be interpreted by the Respondent
as "interfering with its ability to expand and grow"
and thus "disloyal." 11
7 The contract provided that employees with family coverage contrib-
ute $2 69 per month toward the premiums Under the program offered
the replacements , no corresponding contributions were required
8 See also the discussion in Service Electric Co, 281 NLRB 633 (1986)
The judge further found that the Respondent violated Sec 8(a)(3) after
the strike ended by retaining the replacements in its noncontributory in-
surance program without offering the same opportunity to returning
strikers The latter employees resumed their coverage under the plan as
provided for in the expired contract The Respondent did not except to
this finding
9 The Respondent did not except to the judge 's finding that this action
also constituted a violation of Sec 8(a)(3)
10 The statement reads "Any actions or statements made by employees
against the Company's interests which expose the Company to public
contempt and/or ridicule or damages its business reputation or interferes
with its ability to expand and grow shall be considered as disloyalty "
11 We reject the Respondent 's contention that the policy statement
does not constitute a term or condition of employment because it does
Our adoption of the 8(a)(5) finding, however, is
based on the test set forth in Peerless Publications,
283 NLRB 334 (1987), issued since the judge's de-
cision in this case. In Peerless the Board held that
an employer who issues a code of conduct govern-
ing employee behavior enforceable by discipline
may overcome the presumption that it must bar-
gain over such a matter by showing that the sub-
ject matter of the code goes to the "protection of
the core purposes of the enterprise." If it does, the
code still must at least be, on its face, unambiguous
and narrowly tailored to the employer's legitimate
and necessary objectives.
In this case we find the Respondent has not
overcome the initial presumption of mandatory
bargainability. Further, even if it did, the policy
statement as promulgated is substantially over-
broad, as found by the judge. The policy's pro-
scription of employee behavior is so general and
ambiguous that the Respondent is not able to sus-
tain "disloyalty" as a "core" concern under the
Peerless balancing test . That is, the policy is not in
any manner restricted to subject matter shown to
be necessary to the "protection of the core pur-
poses of the enterprise." Further, the policy is
simply not drawn narrowly so as to infringe on
employee rights only to the extent necessary to
serve legitimate interests in employee loyalty. Ac-
cordingly, we find that the Respondent has violat-
ed Section 8(a)(5) in unilaterally promulgating its
policy statement on disloyalty.
4. The judge, relying on Wright Line, 251 NLRB
1083 (1980), dismissed the complaint allegation that
the Respondent violated Section 8(a)(3) of the Act
by suspending employees John Vicknair and Rich-
ard Hodges on May 30, 1980, and by thereafter re-
fusing to reinstate them. We agree that the com-
plaint should be dismissed. However, we find, con-
trary to the judge, that the General Counsel has
made a prima facie showing sufficient to, support
the inference that protected conduct was a "moti-
vating factor" in the Respondent's decision. Wright
Line, above at 1084. We also find, however, that
the Respondent has met its Wright Line burden of
showing that the two employees would have been
suspended, even in the absence of their protected
activities, because the Respondent reasonably be-
not, on its face, provide for any discipline for its breach The judge's
finding that the Respondent intended to enforce the policy with discipli-
nary actions is clearly supported by the testimony of Personnel Manager
Jerry Deutsch, the author of the statement Deutsch stated that, while the
employees were not informed that discipline could flow from a violation
of the policy, "We would have felt like-depending on the individual sit-
uation-that the employee could be disciplined and possibly terminated "
Deutsch also testified, in response to a question concerning employees
who spoke to the media, "If you're going to violate a company policy,
depending on the severity of the violation and the incident , termination is
a possibility "
GHR ENERGY CORP
lieved they had engaged in serious misconduct en-
dangering other employees and the plant itself.
As set forth' in detail by the judge in section
111,G,1, of his decision, prior to their suspensions in
May 1980 both Vicknair and Hodges had been ex-
tremely active in the Union for the approximately
4-5 years of their employment. Both employees
had been stewards who had filed grievances and
represented employees in disciplinary meetings
with management officials. Additionally, Vicknair
was an active member of the union safety commit-
tee and had been its chairman since 1978. In that
capacity, he filed numerous complaints with the
Occupational Health and Safety Administration
(OSHA), several of which resulted in citations and
settlements in which the Respondent agreed to pay
penalties. Vicknair also complained to management
about various safety hazards in the plant that re-
sulted in the Respondent's making repairs to equip-
ment. On two occasions in 1979 high-level plant of-
ficials directly expressed to Vicknair their displeas-
ure with his efforts to remedy health and safety
problems. 12
During the 1980 strike, Vicknair served as strike
chairman and supervised the picket line. After the
strike the Respondent assigned Vicknair to a new
supervisor with the explanation that hoped it
would "settle [him] down." Finally, several weeks
before his suspension Vicknair made yet another
safety complaint to management and indicated that
he would seek OSHA's help.
Hodges also, as steward, made numerous safety
related complaints to management. In 1978, during
an OSHA inspection, Hodges, over the objections
of the Respondent's safety manager, pointed out
specific hazardous conditions to the inspector. A
superintendent later told Hodges that his actions
had resulted in a $5000 fine and that because of
him there would be no Christmas bonus for em-
ployees that year. In 1979 Hodges complained on
two occasions that inadequate repairs had been
made to damaged furnaces resulting in safety haz-
ards to employees assigned to operate them. On the
first occasion Hodges had consulted with Vicknair.
Superintendent Ireland responded by calling Vick-
nair and Hodges "troublemakers."
On these facts we find that the direct expressions
of displeasure by several management officials to
the safety-related activities of Vicknair and Hodges
12 The Respondent 's manager of safety and fire protection, Reggie
Brown, told Vicknair, in connection with a tank problem, "Johnny, you
know, you best watch your step, `cause [Superintendent] Glenn [Ireland]
and them is watching you " Also, in the course of Vicknair's assisting an
OSHA official during an inspection, Brown told' Vicknair that he had
"better cool it," as Vicknair had caused "too many problems for manage-
ment" Brown warned Vicknair that the first time he "messed up" Ire-
land and other supervisors would "nail" him
1013
undertaken in their capacities as union representa-
tives are sufficient to support a prima facie show-
ing that these activities were a motivating factor in
the Respondent's decision to suspend them.13
However, we also find that the Respondent has
established that it would have suspended Vicknair
and Hodges even in the absence of their union ac-
tivities. Briefly, as set out in the judge's decision,
the relevant circumstances surrounding the suspen-
sions are as follows. During the 11 p.m.-7 a.m.
shift on May 24, 1980, employees Fortenberry,
Vicknair, Hodges, and one other were on duty, in
the area of the plant that included the utilities lab.
Fortenberry suffered serious harassment, described
below, while working in and near the utilities lab.
After finishing his shift and working the following
one, Fortenberry went home. He did not return to
the plant until May 28, 1980, when he resigned.
Fortenberry spoke to Superintendent Ireland and
Safety Supervisor Fredrick Oubre about what had
happened to him and he also provided a written
statement . He reported, among other experiences,
that he observed three glass bottles being thrown
from an elevated platform near the lab at the lab
building itself. He later checked the area where the
bottles had broken and found it saturated with ker-
osene. Because Fortenberry had been in the lab just
prior to the bottle throwing he interpreted the inci-
dent as a personal attack against him.
Oubre asked Fortenberry if he could identify the
persons who had thrown the bottles. Fortenberry
replied that he knew what they looked like but he
did not know, their names. After reviewing the Re-
spondent's file of employee photographs, Forten-
berry was certain that it was Vicknair and Hodges
who had thrown the bottles. Oubre then submitted
a written report to Deutsch summarizing Forten-
berry's story, including his identification of Vick-
nair and Hodges, and stating that Oubre had inves-
tigated the area around the lab and found broken
glass. Fortenberry also told his story to Deutsch on
May 28, repeating essentially what appeared in
Oubre's report. On May 30 Deutsch summoned
Vicknair and Hodges to his office, confronted them
with Fortenberry's accusations and told them they
had been identified as the bottle throwers. Vicknair
and Hodges denied any involvement in the incident
and rejected Deutsch's offer of a polygraph test to
IS Contrary to the judge, we do not find that the General Counsel is
required to show either that Personnel Manager Deutsch, who imposed
the suspensions, personally shared with certain high plant officials their
clear animus against Vicknair and Hodges or that,these officials actively
participated in the disciplinary decision These issues are matters for
proof by the Respondent if it wished to challenge a finding that it had an
unlawful motive at all In any event, the Respondent essentially concedes
this point by arguing that this is a "dual motive" case, properly analyzed
under Wright Line
1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
prove their innocence. Deutsch then suspended
them pending further investigation.
On these facts we find that the Respondent has
established it would have suspended Vicknair and
Hodges even in the absence of their union activity.
In our view, in light of Fortenberry's accusation
and Oubre's preliminary investigation, the Re-
spondent has shown a reasonable basis for believing
that Vicknair and Hodges had engaged in miscon-
duct with a high likelihood of injuring other em-
ployees and of damaging plant equipment.' 4 The
potentially catastrophic consequences ,of throwing
kerosene filled bottles would have provoked at
least a suspension of any employee irrespective of
any union animus the Respondent harbored against
that employee. There has been no showing that the
Respondent ever failed to take similar disciplinary
action against any other employee accused of egre-
gious misconduct. Accordingly, we shall dismiss
the allegation that the Respondent disciplined em-
ployees Vicknair and Hodges in violation of Sec-
tion 8(a)(3).
5. Following his suspension on May 30, 1980,
Vicknair continued his union activity by testifying
as chairman of the Union's safety committee before
the. State Environmental Protection Agency on
June 5, 1980, and the United States Senate Finance
Committee on September 12, 1980. His testimony
in these public forums generally addressed the issue
of alleged, environmental pollution caused by the
Respondent in the course of operating its refinery
business and the effects of the pollution on employ-
ee health and safety. Specifically, as Vicknair testi-
fied in this proceeding, his appearance before the
Senate Committee was in support of the then pend-
ing "Superfund" legislation.'s
On September 22, 1980, as found by the judge,
the Respondent's attorney wrote a letter to Vick-
nair referring to his remarks before the State EPA
and the Congress, as reported in the local press,
concerning the Respondent's "alleged improper
disposal of hazardous wastes" into a public water-
way. The letter stated that Vicknair's remarks were
"false and defamatory," and that the Respondent
intended to file a civil lawsuit against Vicknair
seeking $6 million in actual and punitive damages.
There is no record evidence that such a suit was
ever filed.
14 Fibracan Corp, 259 NLRB 161, 172 (1981), S & W Motor Lines, 236
NLRB 938, 944 (1978)
15 The bill was passed as the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, Pub L 95-510, 94 Stat 2767
(1980), codified at 42 U S C §§ 9601-9657 (1982) Among the purposes of
this law is to define hazardous conditions, establish liability for such con-
ditions, and establish a trust fund to cover cleanup and compensation ex-
penses where necessary
The judge, in addressing the 8(a)(1) allegation
concerning the threat to file a lawsuit, found that
Vicknair's postsuspension activity was concerted
within the meaning of Section 7 of the Act and
that the threat was directly motivated by Vick-
nair's appearances before the regulatory and legis-
lative bodies. We agree. The concerted nature of
Vicknair's testimony is established by the capacity
in which Vicknair was testifying-as chairman of
the Union's safety committee; and the connection
between the threatened suit and the testimony is
virtually indisputable. We disagree with the judge's
recommended dismissal of the allegation-a dismis-
sal he based on his finding that Vicknair's public
testimony did not come within the "mutual aid and
protection" clause of Section 7 of the Act.
As found by the judge, Vicknair's prepared state-
ment submitted to the Senate Committee referred
not only to the alleged unlawfulness of the Re-
spondent's waste disposal procedures but specifical-
ly to the impact of those actions on employee
health and safety. Vicknair stated that an employee
of the Respondent had been disciplined for ques-
tioning his assignment to dump poisonous materials
and that a driver whom Vicknair believed to be an
employee of the Respondent had died after unload-
ing such materials.
The Supreme Court in Eastex, Inc. v. NLRB, 437
U.S. 556, 563-568 (1978), held that the "mutual aid
and protection" clause of Section 7 of the Act pro-
tects employees engaged in concerted activity
"from retaliation by their employers when they
seek to improve working conditions through resort
to administrative and judicial forums, and that em-
ployees' appeals to legislators to protect their inter-
est as employees are within the scope of this
clause."
In our view, Vicknair's testimony in support of
environmental safety laws that have ,direct impact
on the working conditions of employees handling
toxic materials was clearly concerted activity for
the "aid and protection" not only of the Respond-
ent's employees but of employees generally.'6 Fur-
ther, his testimony as a union official also comes
within Section 7 as assistance to a labor organiza-
tion. Accordingly, we reverse the judge and find
that the Respondent's threat to sue Vicknair violat-
ed Section 8(a)(1) of the Act.17
16 As noted by the Eastex Court, above at 565, the definition of "em-
ployee" in Sec 2(3) of the Act, which refers to "any employee, and shall
not be limited to,the employees of a particular employer, unless this sub-
section explicitly states otherwise," was, "intended to protect employees
when they engage in otherwise proper concerted activities in support of
employees of employers other than their own In recognition of this
intent the Board and the courts have held that the `mutual aid or protec-
tion' clause encompasses such activity " (Fn omitted )
17 Clyde Taylor, 127 NLRB 103, 108 (1960), Thomas Steel, 281 NLRB
389 (1986)
GHR ENERGY CORP 1015
6. The facts relevant to the Respondent 's imple-
mentation of a polygraph testing program are
largely uncontested and fully set forth by the
judge . Essentially , the Respondent told the Union
in April 1980 , in a bargaining session held during
the strike , that it had obtained evidence of specific
instances of industrial "sabotage" or intentional
mistreatment of and damage to plant equipment.
The Union denied that any unit employees were in-
volved . The Respondent did not raise this issue
again until August 1980 , at that time citing several
new incidents of suspected sabotage . When the
Union , later that month , requested further informa-
tion , the Respondent answered on January 16,
1981, with a list of six specific incidents . On Janu-
ary 22 , 1981, the Union requested the names of any
employees suspected of this misconduct and access
to the Respondent 's investigatory files. The Re-
spondent did not answer this request.
During meetings on February 11 and 12, 1981,
the Respondent indicated its desire to administer
polygraph tests to unit employees in order to iden-
tify those involved in the alleged sabotage and thus
solve the problem . The Respondent assured the
Union during those meetings that unit employees
would be entitled to have a union representative
with them during the polygraph examinations. The
Union stated that , while it was generally opposed
to polygraph testing on reliability and validity
grounds, it would consider testing of some sort if
the Respondent could demonstrate that in fact
there had been intentional damage to plant equip-
ment and that unit employees were near the affect=
ed machinery When the damage occurred.
During the next meeting , on February 21, the
Respondent informed the Union that it had re-
tained a polygraph examiner who had already ar-
rived at the plant . The Respondent also stated that
testing would begin for all employees with "oppor-
tunity" and "knowledge" to accomplish the alleged
sabotage . It also announced that , contrary to its
previous promises , no third party, or union repre-
sentative , would be permitted in the examination
room due to the insistence of the examiner. How-
ever , the Respondent also announced that alterna-
tive representational opportunities would be avail-
able to the Union . i s Finally , during the February
21 meeting the Respondent offered , for the first
time , to show its investigatory files to the Union.
According to the judge's credibility findings, the
"'The Respondent permitted a union representative to be stationed
just outside the examination room for consultation dust before the test and
also allowed employees to temporarily interrupt their polygraph examina-
tion to go out and consult with their union representative before return-
ing to complete it Additionally , the Respondent provided the Union at
the February 21 meeting with a complete list of the 10 questions that
would constitute the examination
Union showed no interest at that time in seeing
them . The Union did request 1 additional day to
consult with the unit employees and to consider
the newly proposed conditions under which the
polygraphing Would be conducted . The Respond-
ent refused that request and testing began that
night on the February 22 midnight shift.
On February 23 and Match 11, 1981, the Union
wrote the Respondent again asking for information
on the six incidents described in the Respondent's
letter of January 16. The Respondent answered
only with a summary of evidence that it claimed
supported its assertion of sabotage to a compressor
in February . On February 25 a supervisor told em-
ployee Gaubert to take the polygraph test. When
Gaubert asked what would happen to him if he re-
fused , the supervisor replied that it "would be an
admission of guilt and you'd be suspended." On
March 19 and 20 the Union requested detailed in-
formation concerning the administration and results
of the testing program . The Respondent -did not
provide any of the requested information.
We agree with the judge that , on these facts and
for the reasons set forth by him , the Respondent
violated Section 8(a)(5) by refusing to supply re-
quested information on (1) the incidents of asserted
-sabotage , and (2) the administration and results of
the polygraph testing program as implemented, and
violated Section 8(a)(1) by threatening employee
Gaubert. Although we also agree with the judge
that the Respondent violated Section 8(a)(5) by
unilaterally implementing the polygraph testing
program and violated Section 8(a)(1) by suspending
employees who refused to submit to it , we do so
only for the following reasons.
We find it unnecessary to pass on the judge's
analysis when he found no merit to the Respond-
ent's claim that , although the subject of polygraph
testing is a mandatory subject of bargaining," the
Respondent was entitled to implement the program
based on a bargaining impasse . For even if a legiti-
mate impasse existed , the Respondent could make a
unilateral change only if the change was "reason-
ably comprehended under [the Respondent 's] pre-
impasse proposals ." 20 Here the testing program as
implemented clearly was not. Prior to the February
21 meeting , the Respondent had repeatedly stated
that under its proposal unit employees would be al-
lowed to have a union representative with them
during the examination . However, on February 21
the Respondent suddenly reversed course and
stated that , while it would make other accommoda-
19 Medicenter, Mid-South Hospital , 221 NLRB 670 , 678 (1975)
20 Taft Broadcasting Co, 163 NLRB 475, 478 (1967), Tampa Sheet
Metal Co , 288 NLRB 322, 326 (1988)
1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tions to satisfy the Union's interest in a representa-
tional presence, the testing program would not in-
clude provision for any person to accompany em-
ployees during the examinations. The Union was
thus faced with a fait accompli, since the Respond-
ent denied its request for a 1 day delay to consider
the new proposal-one significantly different from
the original proposal the parties had to that point
been negotiating-and began testing only a few
hours later. Given that polygraph testing is un-
doubtedly very intimidating to employees, the
sudden imposition of the tests in a manner that the
Union had no adequate opportunity even to discuss
with the employees in advance could only serve to
undermine its representative status in the eyes of
those it represented. Whatever the merits-from a
polygraph examiners' perspective-of a plan in
which the employee went into the polygraph ex-
amination room alone, this change in procedure
was sufficiently significant to warrant further dis-
cussion with the Union before finally deciding
whether to put it into effect. Accordingly, we find
that,, under Taft Broadcasting, the Respondent vio-
lated Section 8(a)(5) by unilaterally imposing its
polygraph testing program.21
With respect to the suspensions given to those
employees who refused to take the polygraph test,
we find that they constitute violations of Section
8(a)(1) since they were imposed pursuant to the un-
lawful testing program. Pease Co., 251 NLRB 540,
547-548 (1980).22
21 We do not imply that an employer may not lawfully develop a plan
for a change in a term of employment before announcing to the union its
intention to implement that plan If such an announcement is made suffi-
ciently in advance of implementation to provide time for meaningful bar-
gaining and the union fails to request bargaining , the employer may law-
fully implement the plan See Owens Corning Fiberglass Corp, 282 NLRB
609 (1987) The gravamen of the Respondent's offense here is that the
management representative who announced, on February 21, the revised
conditions under which the polygraph testing would be conducted also
stated that no time would be provided for the Union to consider the re-
vised plan and that testing would begin that night Thus, the Union was
effectively informed that nothing could be done about the revised plan
In addition to its reliance on an impasse theory, the Respondent justi-
fies its unilateral imposition of the polygraph testing program on grounds
of emergency conditions, i e , the possibility of fires and explosions in the
refinery caused by intentionally damaged equipment The Respondent
relies on former Chairman Murphy's concurrence in Medicenter, above at
fn. 2, and Johns-Manville Products v NLRB, 557 F 2d 1126 (5th Cir
1977) However, in those cases the existence of sabotage was either not
disputed or shown to have existed by credible evidence Here, the Union
denies that equipment problems were caused intentionally Additionally,
the judge, in the absence of probative evidence in the record, does not
find either that sabotage occurred or that the Respondent had reasonable
cause to so believe In fact, the Respondent 's failure to provide such evi-
dence to the Union constitutes the basis for the 8(a)(5) violation found by
the judge and affirmed by us The Respondent has therefore not proven
the existence of emergency conditions
22 We need not pass on the judge's discussion of issues related to the
concertedness of the employees ' refusal to take the polygraph test be-
cause it would be relevant only in the context of discipline imposed pur-
suant to a lawful term or condition of employment See also fn 3, infra
The complaint alleged, inter alia, that the Respondent violated Sec
8(a)(1) by suspending certain employees for refusing to take the poly-
7. We agree with, the- judge's recommended dis-
missal of the allegation that the Respondent violat-
ed Section 8(a)(5) by refusing on January 30, 1980,
to include certain employees of TCP Construction
Co. as an accretion to the bargaining unit and to
recognize and bargain with the Union as the repre-
sentative of GHR's and TCP's employees.
The Board has followed a restrictive policy in
finding accretion because it forecloses the employ-
ees' right to select their bargaining representative.
Towne Ford Sales, 270 NLRB 311 (1984). In implic-
it recognition of this policy, the judge carefully ap-
plied the balancing test set forth in Gould, Inc., 263
NLRB 442, 445 (1982), and found that as of the
January 30, 1980 demand for recognition of an
overall unit the factors relative to common interest
militating in favor of accretion were outweighed
by those against it.
However, in agreeing with the judge we do not
rely on his speculation, based on what the record
"suggested," that the number of employees the
Union wished to accrete as of January 30 "might
well have exceeded" the number of employees in
the existing unit . The judge considered evidence
that the number of TCP employees "was expand-
ing toward 3000" and that the number of unit em-
ployees was "somewhere between 500 and 1600."
In our view, the General Counsel, whose burden it
is here to show accretion, has not established suffi-
ciently precise evidence relevant to the relative
numbers of employees involved because the record
does not reveal the number of unit employees on
January 30 or the number of TCP employees in ap-
propriate classifications that the Union wished to
accrete at that time. In any event, under Gould this
factor assumes critical significance only if the evi-
dence is in the record.
Finally, we agree with the judge that the Re-
spondent violated Section 8(a)(5) in not providing
the Union with certain information requested on
January 30. That information was, as found by the
graph test without union representation when they had reasonable cause
to believe that the testing would result in disciplinary action The Charg-
ing Party has excepted to the judge's failure to find this independent vio-
lation based on NLRB v J Weingarten, 420 U S 251 (1975) We need not
decide here any issues about whether Weingarten rights attach to an in-
vestigatory interview conducted in the form of a polygraph test and, if
so, what testing conditions would ensure that an employee 's exercise of
that right does not interfere with "legitimate employer prerogatives,"
Weingarten, above at 258 A separate 8(a)(1) violation would not change
the make-whole remedy we shall order for the otherwise unlawfully im-
posed discipline See Consolidated Casinos Corp, 266 NLRB 988 (1983),
in which the judge found Weingarten violations in the polygraph context
and discussed the issue of "accommodation " between an employee's right
to both a witness and a consultant and an employer 's right to administer
polygraph tests The Board adopted his decision without comment on
these points but did so with the reservation that its adoption was made in
the absence of exceptions and should not be construed as an endorsement
of all of the judge 's findings and conclusions
GHR ENERGY CORP 1017
judge, relevant to the issues of GHR 's relationship justments and by refusing to permit Simmons to
to TCP and whether TCP employees were proper- enter on its property for these purposes.
ly part of the existing unit . (i) Refusing to supply requested information nec-
ORDER
The National Labor Relations Board orders that
the Respondent, GHR Energy Corp., Good Hope,
Louisiana, its officers, agents, successors , and as-
signs, shall
1. Cease and desist from
(a) Withholding contractual sick leave benefits
from employees during and after a strike when
such employees are eligible for coverage under the
contract because of physical disability.
(b) Discriminating against former economic strik-
ers by paying higher wage rates or providing
better health insurance coverage to strike replace-
ments or otherwise discriminating against employ-
ees because they engaged in a strike or other union
activity.
(c) Unilaterally granting an increased wage rate,
promulgating a disloyalty policy, or imposing a
polygraph testing requirement without bargaining
with Oil, Chemical and Atomic Workers Interna-
tional Union, and its Local 4-447 as the exclusive
collective-bargaining representative of the employ-
ees in the following appropriate unit:
All production, maintenance and construction
employees including laboratory employees and
warehousemen employed by GHR Energy
Corp. at its refinery in Good Hope, Louisiana,
excluding office clerical employees, the chief
chemist , shift foremen, guards and supervisors
as defined in the Act.
(d) Promulgating an overbroad disloyalty policy
that interferes with , coerces, or restrains employees
in the exercise of their rights under Section 7 of
the Act, including activities on behalf of the Union.
(e) Suspending or otherwise disciplining its em-
ployees for refusing to take, or for failing, the un-
lawfully imposed polygraph test.
(f) Threatening employees with suspension or
other discipline if they refuse to take an unlawfully
imposed polygraph test.
(g) Interviewing any employee without permit-
ting the employee to have the union representative
of his or her choice, if that representative is avail-
able, and if the employee has reasonable cause to
believe that the matters to be discussed at the inter-
view may result in the employee being subject to
disciplinary action.
(h) Failing to meet and bargain with the Union
by refusing to meet with Gail Simmons as the rep-
resentative of bargaining unit employees for the
purpose of collective bargaining or grievance ad-
essary for and relevant to the Union's performance
of its function as exclusive representative of em-
ployees in the bargaining unit.
(j) Threatening employees with lawsuits for defa-
mation because they gave testimony before state
regulatory commissions and congressional commit-
tees.
(k) In any like or related manner interfering
with , restraining , or coercing employees in the ex-
ercise of rights guaranteed them by Section 7 of
the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Should the Respondent resume operations of
its Good Hope, Louisiana facility, it shall offer to
the following employees immediate and full rein-
statement to their former jobs or, if a particular job
no longer exists , to a substantially equivalent posi-
tion without prejudice to their seniority and other
rights and privileges , and make each employee
whole for any losses of earnings and other benefits
suffered as as result of the unlawful discharges or
suspensions , in the manner set forth in the ' remedy
section of the judge's decision, as modified:
Gerald Benoit
Steven Miller
Henry Vicknair
Dino Miranda
Eugene Williams
Gus Lee Couch Jr.
Marion Mericle
Gibson Sewell
Ronald P. Gaubert
Teryl Schexnayder
Gail Simmons
William Hubbard Jr.
Dennis Guarino
Robert Snyder
Dan R. Duncan
Ross Allen
George LeBourgeois
James K. Sharp
John Jaskola
Glenn J. Gaubert
Martin L. Ware
Rene Elfer
(b) Remove from its files any references to Gail
Simmons' discharge , Rene Elfer 's suspension or his
discharge, or to the suspensions of the other em-
ployees listed in paragraph 2(a) of this Order, and
notify each of them in writing that this has been
done and that the discharge or suspension will not
be used against him in any way.
(c) Make whole employees Emanuel A. Seals Jr.
and Gregg Williams by paying to each of them,
with interest , the sick leave benefits due him under
article XXXI of the 1978 collective-bargaining
agreement , during the period from March 1, 1980,
until April 16, 1980, in the case of Seals, and in the
case of Williams, from March 1, 1980, until it has
been determined either that his disability on which
the benefits are based has ended, or that the con-
1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tractual right to receive sick benefits has expired,
whichever occurs first.
(d) Make whole those employees who engaged
in the 1980 strike and who suffered discrimination
with respect to the cost of health insurance bene-
fits, by reimbursing them for premiums they may
have paid for health insurance, as provided for
under the 1978 collective-bargaining agreement,
from April 14, 1980, until GHR rescinds the premi-
um free insurance coverage it granted to the strike
replacements, plus interest.
(e) Make whole those employees who engaged in
the 1980 strike and returned to work as operators 2
by paying them each a sum representing the differ-
ence between the operator 2 wages paid them and
operator 1 wages, plus interest, from April 14,
1980, until GHR rescinds its grant of operator I
wages to strike replacements employed as opera-
tors 2.
(f) Rescind in writing the policy statement on
disloyalty and the requirement that employees rep-
resented by the Union in the unit described above
take a polygraph test as a condition of employ-
ment.
(g) Furnish the Union, on request, with the fol-
lowing information:
1. Information regarding the progress of GHR's
investigation of the alleged misconduct of employ-
ees John Vicknair and Richard Hodges , as of No-
vember 6, 1980, and any new evidence GHR has
obtained in that investigation and information re-
garding whether GHR had terminated them, and if
so, the dates of, and the reasons for, the termina-
tions.
2. The names of individuals who had reported to
GHR that Gail Simmons had solicited them on the
Union's behalf, as the Union had requested in its
letters of July 17 and August 18, 1980.
3. The results of GHR's investigation of alleged
sabotage at its Good Hope , Louisiana refinery but
not including witnesses ' statements, and informa-
tion regarding the imposition of polygraph tests on
bargaining unit and nonbargaining unit employees,
all as more fully specified in the Union's oral re-
quests of February 11, 12, and 21 , 1981 , and in the
Union's letters of January 22, February 23, March
11, and March 20, 1981.
4. Information regarding TCP Construction Co.,
Inc. and its relationship with GHR, which the
Union requested in its letter of January 30, 1980.
(h) Preserve and , on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards , personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(i) Mail signed and dated copies of the attached
notice marked "Appendix"23 to the last known ad-
dress of all unit employees as of the date of the
1983 closing of the Respondent's Good Hope, Lou-
isiana facility . Copies of the notice, on forms pro-
vided by the Regional Director for Region 15,
after being signed by the Respondent 's authorized
representative, shall be mailed immediately upon
receipt.
(j) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that those allegations of
the complaint for which no violations have been
found are dismissed.
23 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT withhold contractual sick leave
benefits from employees during a strike when such
employees are eligible for coverage under the con-
tract because of physical disability.
WE WILL NOT discriminate against former eco-
nomic strikers by offering higher wage rates or
better health insurance coverage to strike replace-
ments or otherwise discriminate against employees
because they engage in a strike or other activity
protected by Section 7 of the Act.
WE WILL NOT unilaterally grant an increased
wage rate, promulgate a disloyalty policy, or
impose a polygraph test as a condition of employ-
ment without bargaining with Oil, Chemical and
Atomic Workers International Union, and its Local
4-447, as the exclusive collective-bargaining repre-
sentative of the employees in the following appro-
priate unit:
All production, maintenance and construction
employees including laboratory employees and
warehousemen employed by GHR Energy
Corp., at its refinery in Good Hope, Louisiana,
GHR ENERGY CORP
excluding office clerical employees, the chief
chemist, shift foremen, guards and supervisors
as defined in the Act. -
WE WILL NOT promulgate an overbroad disloyal-
ty policy that interferes with, coerces, or restrains
you in the exercise of concerted activity protected
under Section 7 of the Act, including activities on
behalf of the Union.
WE WILL NOT suspend or otherwise discipline
you because you refused to take, or because you
failed, the unlawfully imposed polygraph test.
WE WILL NOT threaten you with discharge, sus-
pension, or other punishment if you refuse to take
an unlawfully imposed polygraph test.
WE WILL NOT interview you without permitting
you to have the union representative of your
choice, if that representative is available, and if you
have reasonable cause to believe that the matters to
be discussed at the interview may result in your
being subject to disciplinary action.
WE WILL NOT fail and refuse to meet and bar-
gain with the Union by refusing to meet with Gail
Simmons as the representative of bargaining unit
employees for the purpose of collective bargaining
or grievance adjustments and WE WILL NOT refuse
to permit Simmons to enter our property for these
purposes.
WE WILL NOT refuse to supply requested infor-
mation necessary for and relevant to the Union's
performance of its function as exclusive representa-
tive of employees in the bargaining unit.
WE WILL NOT threaten employees with lawsuits
for defamation because they give testimony before
state regulatory commissions and congressional
committees.
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.
Should we resume operations of our Good
Hope, Louisiana facility, WE WILL offer to the fol-
lowing employees immediate and full reinstatement
to their former jobs or, if a particular job no longer
exists, to a substantially equivalent position without
prejudice to their seniority or other rights and
privileges, and make them whole for any loss of
earnings, with interest.
Gerald Benoit
Steven Miller
Henry Vicknair
Dino Miranda
Eugene Williams
Gus Lee Couch Jr.
Marion Mericle
Gibson Sewell
William Hubbard Jr.
Dennis Guarino
Robert Snyder
Dan R. Duncan
Ross Allen
George LeBourgeois
James K. Sharp
John Jaskola
1019
Ronald P. Gaubert Glenn J. Gaubert
Teryl Schexnayder Martin L. Ware
Gail Simmons Rene Elfer
WE WILL remove from our files any references
to Gail Simmons' discharge, Rene Elfer's suspen-
sion or his discharge, and to the suspensions of the
other employees listed above and notify each of
them in writing that this has been done and that
WE WILL not use the discharges or suspensions
against him in any way.
WE WILL make whole employees Emanuel A.
Seals Jr. and Gregg Williams by paying to them,
with interest, the sick leave benefits due them
under article XXXI of the 1978 collective-bargain-
ing agreement, for the period from March 1, 1980,
until April 16, 1980, in the case of Seals, and in the
case of Williams, from March 1, 1980, until it has
been determined either that Williams' disability on
which the benefits are based has ended or that the
contractual right to receive sick benefits has ex-
pired, whichever occurs first.
WE WILL make whole those employees who par-
ticipated in the 1980 strike and who, on returning
to work, suffered discrimination with respect to
health insurance coverage, by reimbursing them for
premiums they may have paid for health insurance,
as provided under the 1978 contract, from April
14, 1980, until we rescind the premium-free insur-
ance coverage we granted to the strike replace-
ments, with interest.
WE WILL make whole those former strikers who
returned to work as operators 2 for any loss of
earnings they may have suffered due to our dis-
crimination against them, with interest.
WE WILL rescind the policy statement on disloy-
alty and the requirement that employees represent-
ed by the Union in the unit described above take a
polygraph test as a condition of employment.
WE WILL, on request, furnish the Union with the
following information:
1. Information requested in the Union's
letter of November 6, 1980, regarding the
progress of our investigation of the alleged
misconduct of employees John L. Vicknair
and Richard E. Hodges, as of November 6,
1980, and any new evidence we obtained in
that investigation and information regarding
whether we terminated them and, if so, the
dates of and the reasons for the terminations.
2. The names of individuals who had report-
ed to us that Gail Simmons had solicited them
on the Union's behalf, as the Union had re-
quested in its letters of July 17 and August 18,
1980.
1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3. The results of our investigation of alleged
sabotage at our Good Hope , Louisiana refin-
ery, but not including witnesses' statements,
and information regarding the imposition of
polygraph tests on bargaining and nonbargain-
ing unit employees , all as more fully specified
in the Union's oral requests on February 11,
12, and 21, 1981, and in the Union 's letters of
January 22 , February 23 , and March 11 and
20, 1981.
4. Information regarding TCP Construction
Co., Inc . and its relationship with GHR which
the Union requested in its letter of January 30,
1980.
GHR ENERGY CORP.
John H. Curley, Charlotte N. White, and Michael M. Pet-
kovich, Esqs., for the General Counsel.
Andrew C. Partee Jr., John B. Waldrip, and Patrick R.
Hug Esq& (Partee & Waldrip), of New Orleans , Louisi-
ana, and John A. Meagher and Robert J. Hrebek, Esq&
(Meagher & Hrebek), of Manasquan , New Jersey, for
the Respondents.
Victor H. Hess and Dennis N. Angelico, Esgs: (Hess & Wa-
shofsky), of New Orleans, Louisiana, and Mr. Ernie
Roussell, OCAW, International Representative , of Mar-
rero , Louisiana, for the Charging Party.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN , Administrative Law Judge.
Upon a charge filed by the Union, Oil, Chemical and
Atomic Workers International Union , and its Local 4-
447, on 1 February 1980 ,1 the Regional Director for
Region 15 issued a complaint in Case 15 -CA-7563, on 7
March, alleging that Respondent, GHR Energy Corp.,2
referred to below as "GHR" violated Section 8 (a)(5) and
(1) of the National Labor Relations Act, as amended (29
U.S.C. 151 et seq.), referred to as the Act, by failing and
refusing to provide information to the Union regarding
TCP Construction Co., Inc.
Upon a further charge filed by the Union on 17 April,
the Regional Director issued a complaint in Case 15-
CA-7655 on 8 May, alleging that GHR had violated
Section 8(a)(1) and (3) of the Act by failing and refusing
to pay sick leave benefits to employees Gregg Williams
And Emanuel Seals Jr., as required by a collective-bar-
gaining agreement . By order issued on 8 May, the Re-
gional Director consolidated Case 15-CA-7563 with
Case 15-CA-7655.
Upon a further charge which the Union filed on 23
May, and an amended charge which the Union filed on
26 June, the Regional Director issued a complaint in
' On 10 September 1981, the Regional Director for the National Labor
Relations Board 's Region 15 amended the complaints in these proceed-
ings to show that Respondent Good Hope Refineries had changed its
name to "GHR Energy Corp."
2 Unless otherwise stated , all dates occurred in 1980.
Case 15-CA-7708, on 8 July , alleging that : GHR had
violated Section 8(a)(1) and (3) of the Act by suspending
and then discharging employee Rene Elfer ; that GHR
had violated Section 8 (a)(5) and (1) of the Act by unilat-
erally posting, promulgating and implementing a loyalty
policy, and by unilaterally eliminating the breaker day
overtime program, and an employee training program;
and, that GHR and Respondent TCP Construction Co.,
Inc., referred to below as TCP, had violated Section
8(a)(5) and (1) of the Act by refusing to extend a collec-
tive-bargaining agreement to TCP's employees and by
failing and refusing to recognize and bargain with the
Union as the bargaining representative of a unit of
GHR's and TCP's employees. By his order of 8 July the
Regional Director consolidated Cases 15-CA-7563, 15-
CA-7655, and 15-CA- 7708.
Upon the Union's charge filed on 3 July and amended
on 30 July, the Acting Regional Director issued a com-
plaint on 11 August, in Case 15-CA-7768, alleging' that
GHR violated Section 8 (a)(1), (3), and (5) of the Act by
enrolling bargaining unit employees , who were hired
during a strike, into a health plan which differs from the
plan granted to unit employees under a collective-bar-
gaining agreement, and by paying bargaining unit em-
ployees, who were hired during a strike , at a higher rate
than it paid to unit employees in similar classifications,
who participated in the strike , all without affording the
Union an opportunity to bargain about the changes in
the wages and conditions of employment of bargaining
unit employees . On 11 August, the Acting Regional Di-
rector also ordered the consolidation of Case 15-CA-
7768 with Cases 15-CA-7563, 15-CA-7655, and 15-CA-
7708.-
Upon the Union's charge filed on 28 August, the
Acting Regional Director issued a complaint in Case 15-
CA-7836, on 12 November, alleging that GHR had vio-
lated Section 8(a)(1) and (3) of the Act by denying em-
ployee Gail Simmons' request for union representation
during an interview which Simmons had reasonable
cause to believe would result in disciplinary action, by
interviewing Simmons , and finally by discharging him
because of his union activity. On 12 November , the Re-
gional Director also ordered the consolidation of Cases
15-CA-7836 with Cases 15-CA-7563, 15-CA-7655, 15-
CA-7708, and 15-CA-7768.
Upon the Union's charge filed on 6 October and its
amended charge filed on 5 November , the Acting Re-
gional Director issued a complaint on 26 November, in
Case 15-CA-7887 alleging that GHR had violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to meet with
Gail Simmons for the purposes of adjusting grievances
or collective bargaining , by refusing to allow Simmons
on its premises , and by failing to honor the Union's re-
quest for the names of individuals , who had reported
knowledge of Gail Simmons' solicitation. On 26 Novem-
ber, the Acting Regional Director ordered the consolida-
tion of Cases 15-CA-7887 with Cases 15-CA-7563, 15-
CA-7655, 15-CA-7708, 15-CA-7768, and 15-CA-7836.
Upon the Union's charge filed on 25 November, the
Regional Director issued a complaint in Case 15-CA-
7951, on 10 February 1981, alleging that GHR had vio-
GHR ENERGY CORP.
lated: Section 8(a)(1) of the Act by threatening to file a
lawsuit against an employee because he had engaged in
union, or other protected, concerted activity, Section
8(a)(3) and (1) of the Act by suspending employees
Johnny Vicknair and Ricky Hodges because of their
union activity; and Section 8(a)(5) and (1) of the Act by
failing and refusing to honor the Union's request for in-
formation regarding Vicknair's and Hodges' suspensions
On 10 February 1981, the Regional Director ordered the
consolidation of Cases 15-CA-7951 with Cases 15-CA-
7563, 15-CA-7655, 15-CA-7708, 15-CA-7768, 15-CA-
7836, and 15-CA-7887
Upon a charge filed by the Union on 23 March 1981,
and amended by the Union on 12 May 1981, the Region-
al Director issued a complaint on 19 May 1981, alleging
that GHR had violated Section 8(a)(1) of the Act, by
suspending employees because they refused to undergo
polygraph testing without the presence of a union repre-
sentative, when the employees had reasonable cause to
believe that the testing would result in disciplinary
action, and by threatening an employee with suspension
if he refused to take a polygraph test.3 The complaint
also alleged that GHR violated Section 8(a)(1) and (5) of
the Act by failing and refusing to furnish the Union with
information regarding GHR's assertions that it had suf-
fered sabotage, and by unilaterally implementing poly-
graph testing among the bargaining unit employees with-
out bargaining to impasse with the Union. On 19 May
1981, the Regional Director, ordered the consolidation of
Case 15-CA-8088 with Cases 15-CA-7563, 15-CA-7655;
15-CA-7708, 15-CA-7768, 15-CA-7836, 15-CA-7887,
and 15-CA-7951. GHR, by its answers to the com-
plaints, denied commission of any of the alleged unfair
labor practices.
The hearing in these consolidated cases was held
before me at New Orleans, Louisiana, on 21 and 22 Sep-
tember 1981, 16, 17 and 18 May, 1983, 19, 20, 21, 22 and
23 March 1984, 10, 11, 12, and 30 April 1984, 1, 2 and 3
May 1984, 23, 24 and 25 July 1984, and at New York
City, New York, on 20 June 1984. Upon the entire
record in these cases, and from my observation of the
demeanor of the witnesses, and after having considered
the briefs filed by the General Counsel and GHR, I
make the following
FINDINGS OF FACT
1. JURISDICTION
GHR, a corporation licensed to do business in the
State of Louisiana, refines petrochemicals at its Good
Hope, Louisiana, refinery. In the course and conduct of
its business, GHR annually sells and ships products
valued in excess of $50,000 directly to customers located
outside of Louisiana.
TCP is a Louisiana corporation with offices and place
of business at Good Hope, Louisiana, where it performs
industrial construction and engineering. In the course
3 At the hearing, on 9 April 1984, over GHR's objection, I granted the
General Counsel's motion to amend the complaint in Case 15-CA-8088
to allege that GHR violated Sec 8(a)(1) of the Act by suspending em-
ployees because they engaged in protected, concerted activity
1021
and conduct of its business, TCP annually purchases and
receives directly from points outside of Louisiana goods
and materials valued in excess of $50,000.
Both GHR and TCP have admitted the commerce
data recited above. I find from those facts that GHR and
TCP are employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
GHR and TCP admit, and I find, that Oil, Chemical
and Atomic Workers International Union, and its Local
4-447 are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. GHR's Refusal To Pay Sick Leave Benefits to
Emanuel A . Seals Jr. and Gregg Williams
1. Facts
Following a Board-held election, the Regional Direc-
tor certified the Union as the collective-bargaining repre-
sentative of the following unit of GHR's employees on
29 December 1971:
All production and maintenance employees includ-
ing laboratory employees employed at [GHR's]
Good Hope, Louisiana, facility; excluding office
clericals, construction employees, the chief chemist,
shift foremen, guards and supervisors as defined in
the Act.
However, in 1975, GHR agreed to include its con-
struction employees in the bargaining unit Thereafter,
GHR recognized and bargained with the Union for the
unit described in the certification plus its construction
employees. The recognition clause in the 1978 collective-
bargaining agreement between GHR and the Union re-
flected the inclusion of the construction employees in the
bargaining unit .4 The latest collective-bargaining agree-
ment to which GHR and the Union were parties was ef-
fective from 1 March 1978 through 29 February 1980.
On 1 March, the Union commenced a lawful economic
strike at GHR, which the bargaining unit employees sup-
ported The strike ended on 14 April, when the unit em-
ployees returned to work.
On 28 February, bargaining unit employees Emanuel
A. Seals Jr. and Gregg Williams suffered injuries while
working at the GHR facility. Seals was off from work
from 28 February until 16 April, when his physician per-
mitted him to return to work. I also find from Seals' un-
contradicted testimony, that he was under the physician's
care from 28 February until 16 April.
Williams did not testify and the record did not show
when he returned to work. However, I find from the tes-
timony of Jerry K. Deutsch, who at all times material to
these cases, was GHR's personnel manager , that Wil-
4 All production, maintenance and construction employees, including
laboratory employees employed by the Employer at is refinery in Good
Hope, Louisiana, excluding office clerical employees, the chief chemist,
shift foremen, guards and supevisors as defined in the Act
1022 DECISIONS OF THE NATIONAL
liams remained away from work at GHR after the strike
began . In view of this injury, and his absence from work,
I infer that Williams was incapacitated for some time
after 28 February. However, I cannot determine from
the record when Williams was able to return to work.
I find from Seals' testimony and GHR 's assertion in its
brief, that GHR paid sick leave benefits to Seals and
Williams under the provisions of the 1978 contract,5 only
for 28 and 29 February. I find from Deutsch 's testimony
that GHR withheld further sick leave benefits from Seals
because Deutsch observed Seals on the picket line during
s The applicable provision was as follows:
ARTICLE XXXI
SICK LEAVE
Section 1 . After completion of probationary period , a regular em-
ployees is eligible for sick leave.
Section 2. Employees will be granted leave and paid for scheduled
straight time days lost due to ... sickness or occupational injury in
accordance with the following:
Occupational Nonoccupational
Accredited
Service Full Half Full Half
Paydays Paydays Paydays Paydays
0-1 5 0 5 0
1-2 10 20 10 20
2-3 15 40 15 40
3-4 20 60 20 60
4-5 25 80 25 80
5-6 30 100 30 100
6-7 35 120 35 120
7-8 40 140 40 140
8-9 45 160 45 160
9-10 50 180 50 180
10-11 55 195 55 195
11-12 60 200 60 200
12 & over 65 210 65 210
During any period of non-occupational disability , benefits to a
qualified employee shall begin after an absence of eight accumulated
working hours . In the case of occupational accident or if hospital-
ized-no waiting period shall be required.
Scheduled benefits are not accumulative. An employee 's years of
accredited service on the first day of his disability shall govern bene-
fits. -
Reinstatement is subject to passing anniversary date and two
weeks work without a benefit claim . "Full Paydays"means the
hourly base straight time rate multiplied by the number of hours lost
in a work day . "One-half Paydays" means the employee 's hourly
base straight tune rate multiplied by one -half the number of hours
lost in a work day.
Section 3. The Company reserves the right to require proof of ill-
ness prior to releasing sick pay . The Company requires a doctor's re-
lease following any operation or illness longer than three (3) consec-
utive working days
Section 4. In the event an employee who has suffered an occupa-
tional injury has used up the employee's accumulated and accrued
scheduled benefits as specified in Section 2, above , and the employee
still is unable to return to work, the employee may then use any
unused portion of his scheduled non-occupational and illness leave
benefits , as may be required . Under these circumstances, the one-day
waiting period is not applicable.
LABOR RELATIONS BOARD
the strike and further because Deutsch learned in early
April that Seals had filed for unemployment compensa-
tion from the State of Louisiana .6 Deutsch also conclud-
ed that Williams was not entitled to any sick leave after
29 February, when he saw from GHR's security 's report
that "Williams was seen on the picket line during the
strike." Deutsch found support for his conclusion that
Seals and Williams had joined the strike , when union ne-
gotiators told him that all the unit employees had sup-
ported the strike.
2. Analysis and conclusions
The Board, in Emerson Electric Co., 246 NLRB 1143
(1979), enfd. as modified 650 F.2d 463 (3d Cir. 1981),
cert. denied 455 U.S. 939 (1982), concluded that an em-
ployer had violated Section 8(a)(1) and (3) of the Act by
terminating sick and accident benefits to employees who
were disabled at the onset of a strike, and had not mani-
fested support for the strike . In reaching these conclu-
sions, the Board held that an employer could not "re-
quire its disabled employees to disavow strike action
during their sick leave in order to receive disability bene-
fits...." Emerson, supra at 1143. However, the Board
also declared that employees who showed support for a
strike by picketing or other public manifestations thereby
terminated their right to further disability payments. The
Board held (id . at 1144):
[F]or an employer to be justified in terminating any
disability benefits to employees who are unable to
work at the start of a strike- it must show that it has
acquired information which indicates that the em-
ployee whose benefits are to be terminated has af-
firmatively acted to show public support for the
strike.
In Conoco, Inc., 265 NLRB 819, 820 (1982), enfd. 740
F.2d 811 (10th Cir. 1984), the Board overruled the
quoted holding in Emerson , and held instead that: .
[O]nce a disabled employee 's benefits have been ille-
gally cut off because of a strike, the disabled em-
ployee
6 Seals denied that he had picketed GHR at any time during the strike.
He also could not remember whether he had filed an unemployment
claim with the State . However, I credited Deutsch 's full and forthright
testimony that he had seen Seals on the picket line on one occasion and
that Seals had filed for unemployment compensation.
From my impression at the hearing , and after review of the record I
was convinced that Seals was an unreliable witness . Seals seemed uncer-
tain and hesitant as he testified about his visits to the picket line. His tone
and attitude left me with the impression that he was either withholding
his full recollection or that he had a weak recollection of his visits to the
1980 picket line.
Seals' further testimony that he could not remember whether he had
filed a claim for unemployment benefits during the stoke persuaded me
that he was not a candid witness with respect to both his participation in
the strike and his filing of a claim for unemployment benefits with the
State of Louisiana . For it was unlikely that he would forget an event
touching on his income. Moreover, the record shows that in fact Seals
had filed such a claim on 8 April, and that he had based his claim upon
the strike.
GHR ENERGY CORP
ployee should be recompensed for those lost bene-
fits until it had been determined either that the dis-
ability on which the benefits are based has ended,
or the contractual right to receive such beneifts has
run out, whichever comes first.
The Board also declared in Conoco, 265 NLRB at 821,
that:
[P]icketing for the Union, or otherwise participating
in the strike , does not render an individual a striking
employee. The key is whether that employee is
withholding services from the employer in support
of a labor dispute... .
Applying the principles of Emerson and Conoco to the
instant case, I find that GHR acted unlawfully when it
discontinued sick leave payments to Seals and Williams
on 1 March, when the strike began. The record shows
that on that date, both employees were disabled and enti-
tled to sick leave payments. Their presence on the picket
line did not render them striking employees For as long
as they were disabled from working, neither Seals nor
Williams had "the option to become a striker." Conoco,
Inc., 265 NLRB at 821.
Similarly, Seals' declarations of support for the strike
in his application for unemployment benefits from the
State of Louisiana did not entitle GHR to withhold his
sick leave benefits as of 8 April, the date of that applica-
tion . Nor did Seals' application for such benefits show
that he was able to work at GHR. For according to his
physician's note, and Seals' credited testimony, he was
disabled until 16 April.
In sum, I find that GHR violated Section 8(a)(1) and
(3) of the Act by discontinuing Seals' and Williams' sick
leave benefits on 1 March, because it believed that they
had actively supported the Union's strike I also find that
Seals' entitlement to sick leave payments continued until
he returned to work on 16 April. However, as the
record does not show when Williams' disability ended, I
shall leave that determination for compliance.
B. GHR's Health Insurance and Wage Policies
Toward Unit Employees Hired During the 1980 Strike
1. Facts
Under the 1978 collective-bargaining agreement, and
following its expiration, GHR paid premiums for a Blue
Cross/Blue Shield health insurance program which the
Union administered for the benefit of bargaining unit em-
ployees. GHR contributed $37.20 per month for individ-
ual medical coverage and $84 per month for family cov-
erage. Those unit employees who required family cover-
age contributed an additional $2.69 per month . Unit em-
ployees under indvidual coverage made no contribution.
The Union's administration of the program entailed en-
rolling unit emloyees and having those, who wanted
family coverage , authorize the monthly deduction of
$2.69 from their wages.
GHR also administered a Blue Cross and Blue Shield
medical insurance program for its nonbargaining unit
personnel . Under this program , GHR contributed month-
ly premiums of $26 . 75 for individual coverage and $78.06
1023
for family coverage. Under GHR's nonunion program,
employees made no contribution.
During the strike, without notifying the Union or seek-
ing to bargain about this new policy, GHR enrolled em-
ployees hired to replace the striking unit employees in its
health insurance program , and contributed the premiums
in full. After the strike ended on 14 April, GHR initially
retained the nonstriking unit employees in its program.
Later, some of these employees enrolled in the Union's
program.
The returning strikers resumed their coverage under
the Union's health insurance plan. Thus, unit employees
again paid $2.69 per month toward the premium for
family coverage.
The pleadings also called attention to GHR's treat-
ment of the strike replacement's wages. The record
showed that during the 1980 strike, GHR hired strike re-
placements for its operator 1 and operator 2 classifica-
tions at the wage rates prescribed in the 1978 contract.
Under that contract, an operator l's hourly rate was
$9.22 and an operator 2 was to receive $8.74 per hour I
find from employee Dan Duncan's testimony that these
rates had risen to $9.95 and $9.47 respectively. After 14
April, when the strikers returned to work at the operator
1 positions, GHR transferred some of their replacements
from operator 1 positions to operator 2 positions, but
continued to pay them at the rate for operator 1 How-
ever, GHR continued to pay all other operators 2, in-
cluding the former strikers, at the 2 rate.
2. Analysis and conclusions
The General Counsel contended that GHR violated
Section 8(a)(5) and (1) of the Act by unilaterally enroll-
ing the strike replacements in its own health insurance
program, rather than in the Union's program, and by
paying strike replacements classified as operators 2 at the
rate prescribed for operators 1, all without giving the
Union notice and opportunity to bargain about these
changes. The General Counsel also urged that by this
same conduct GHR engaged in discrimination which
violated Section 8(a)(3) and (1) of the Act. GHR argues
that its conduct did not violate the act on the grounds
that the strike precluded the strike replacements from en-
rolling in the union-administered health insurance pro-
gram, and that the 1978 collective-bargaining agreement
permitted GHR to remove strike replacements from the
operator 1 classification to the operator 2 classification
and continue to pay them at the I rate. For the reasons
stated below, I agree with the General Counsel's conten-
tions.
GHR's bargaining obligation under Sections 8(a)(5)
and 8(d) of the Act required it to refrain from changing
the wages, hours or other terms and conditions of em-
ployment of unit employees without first giving the
Union an opportunity to bargain about them. NLRB v.
Katz, 369 U.S. 736, 741, 742-743 (1962); A.H. Belo Corp.
v. NLRB, 411 F.2d 959, 970 (5th Cir. 1969), cert. denied
396 U.S. 1007 (1970). It is also well settled that after a
collective -bargaining agreement has expired , the union
continues to represent all the employees in the bargain-
ing unit including strike replacements. Leveld Wholesale,
1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
218 NLRB 1344, 1350 (1975). Further, a strike does not
permit an employer to avoid its bargaining obligation.
NLRB v. J. H. Rutter-Rex Mfg., 245 F.2d 594, 596 (5th
Cir. 1957); M. A. Harrison Mfg. Co., 253 NLRB 675, 684
(1980).
Granted that the Court in Williamsburg Steel Products
Co., 369 U.S. at 747-748 (1962), noted "the possibility
that there might be circumstances which the Board
could or should accept as excusing or justifying unilater-
al action...." However, neither the strike, nor the con-
comitant picket line precluded GHR from making an
effort to notify the Union of its intent to enroll the strike
replacements in the GHR-administered health insurance
program, and give the Union a reasonable opportunity to
bargain about the matter. There was no showing that
GHR attempted to contact the Union. Indeed, GHR did
not assert that it had. I therefore find no merit to GHR's
contention that the strike precluded it from discussing
the enrollment of the strike replacements in the union-ad-
ministered health insurance program, and therefore per-
mitted GHR unilaterally to enroll the strike replacements
in its program for nonunit employees.
The 1978 contract's Article XXXIV entitled "Wages
and Benefits" provided an hourly wage rate of $9.22 for
the operator 1 classification and a rate of $8.74 for opera-
tor 2. -However, according to GHR's Jerry Deutsch,
who was personnel manager during the contract's life,
Article X, Section 2 and Article XXV, Section 1 (a)-(f)
of the 1978 contract, and past practice permitted GHR
to transfer strike replacements from the operator 1 classi-
fication to the operator 2 classification and continue to
pay them as operator 1. The first provision Deutsch re-
ferred to, Article X, Section 2, entitled "Classification of
Work," provided in pertinent part:
Work peculiar to a classification shall be performed
by employees regularly assigned to that classifica-
tion provided that when there is no work assigned
to an employee in his classification, he may be as-
signed to work in another classification. It is also
understood that to expedite the job at hand, an em-
ployee may be required to perform temporary work
of another classification. '
Article XXV provided:
ARTICLE XXV
PERFORMANCE OF WORK BY PERSONS
OUTSIDE THE BARGAINING UNIT
Section 1. Persons outside the bargaining unit and
not covered by this Agreement may perform work
normally done by employees who are covered by
this Agreement when:
(a) Bargaining unit employees are not immediate-
ly available and only for periods of time needed to
secure a qualified bargaining unit employee to re-
lieve him; or
(b) Troubleshooting for quality purposes; or
(c) Training or instructing employees in the pres-
ence of the employee; or
(d) On testing or experimental work; or
(e) In the performance of necessary work when
difficulties are encountered; or
(f) An employee covered by this Agreement is
not displaced; or
(g) In an emergency where there is imminent
danger to personnel or equipment.
(h) It is consistent with past practice in the use of
employees outside the bargaining unit.
I fmd no merit in Deutsch's explanations . First, Article
X, Section 2 permitted GHR to transfer unit employees
from one classification to another either "when there is
no work assigned to an employee in his regular classifi-
cation" or "to expedite the job at hand." However,
GHR did not satisfy either of these conditions. GHR did
not show that at the time it transferred the strike replace-
ments from the operator 1 classification to the operator 2
classification there was no operator 1-type work avail-
able for *them. Further, GHR did not show that it trans-
ferred the strike replacements to the lower classification
"to expedite the job at hand. . . ." Thus, GHR has not
satisfied me that Article X, Section 2 of the 1978 con-
tract permitted it to raise the contractual wage rate for
operators 2 unilaterally.
Moreover, I find that under the following language of
Article XII, Section 13 of the contract, GHR was obli-
gated to pay the operator 2 rate to those strike replace-
ments, when it transferred them to that classification:
Within fourteen (14) calendar days of being award-
ed a new classification or when he begins working
on a newly awarded classification, whichever is
sooner, the employee will begin receiving the appli-
cable rate of the new classification.
Thus, when Deutsch admitted that GHR hired the strike
replacements and paid them as operators 1 and then re-
duced them to the operator 2 classification without re-
ducing their wages accordingly, he spelled out a viola-
tion of Article XIII, Section 12.
GHR's view that the strike replacements were
"[p]ersons outside the bargaining unit and not covered
by [the 1978 contract]" is wholly without merit. For
under the settled principle stated above, even after the
1978 contract expired, the Union continued to represent
all the employees in the bargaining unit, including the
strike replacements. Leveld Wholesale, supra . It follows
that Article XX, which discusses only the treatment of
nonunit employees, did not provide authority for GHR's
decision to pay strike replacements classified as operators
2 at operator 1 wage rates. Nor did the record support
the asserted "past practice." There was no showing of a
practice or any specific prior instance in which GHR,
with the Union's assent, express or implied, unilaterally
set or adjusted unit wage rates.
In sum, I fmd that GHR did not satisfy its bargaining
obligation under the Act when, without affording the
Union an opportunity to bargain, it unilaterally enrolled
the strike replacements in its nonunit health insurance
program and again, when it unilaterally decided to pay
strike replacements operator 1 wage rates after reclassify-
ing them as operators 2. Accordingly, I also find that by
GHR ENERGY CORP
that unilateral conduct, GHR violated Section 8(a)(5)
and (1) of the Act. Burlington Homes, 246 NLRB 1029,
1030 (1979).
By affording strike replacements an opportunity to
enroll in a health insurance program under which they
were not required to make any premium payments, and
not offering the same opportunity to returning strikers,
and by paying strike replacements classified as operators
2 the rate for operator 1, while all returning strikers em-
ployed as operators 2 received only the contract rate,
GHR engaged in conduct likely to have a destructive
impact upon its employees' right to strike or otherwise
support the Union. NLRB v. Erie Resistor Corp., 373 U.S.
221, 226 (1963). I conclude therefore that by this conduct
GHR violated Section 8(a)(3) and (1) of the Act. Bur-
lington Homes, supra at 1030.
C. The Training Program
1. Facts?
The Union and GHR, in an effort to upgrade bargain-
ing unit maintenance employees to the "Mechanic A"
classification provided for a training program in their
1978 contract. A memorandum of agreement attached to
the contract stated that:
All present Laborers, Helpers, Warehousemen, 2nd
Class Mechanics and 1st Class Mechanics on the
payroll as of February 28, 1978 shall be given the
opportunity to qualify for Mechanic "A" classifica-
tion during the term of the Agreement
During contract negotiations on 14 February, GHR's
counsel, John A. Meagher, began the session with re-
marks about the training program. He expressed his un-
derstanding that the Union favored the program's termi-
nation.
Instead, the Union expressed displeasure with GHR's
administration of the training program A union negotia-
tor, Gail Simmons, answered that the Union favored the
program's termination "As long as it was conducted in
the manner it had been!" Union Representative James E.
Bergeron expressed the same sentiment at the negotiating
session of 14 February International Representative
Jimmy Roan, who was the Union's spokesman at the ne-
gotiations from 15 January until 28 April, also told
Meagher "that the Union would not be willing to extend
[the training program] under the present manner of oper-
ation."
Roan admitted that the Union did not propose another
manner of operation "because the original manner it was
negotiated under, under the old contract, was sufficient
to run the operation under that procedure." Instead, I
find from Roan's testimony, that beginning in mid-Febru-
ary, the Union proposed that the training program end
and that all bargaining unit maintenance employees re-
ceive a mechanic "A" classification.
GHR agreed that the training program would end
upon the 1978 contract's expiration. However, GHR re-
7 Except, as noted below, I based my findings of fact upon testimony
of Jimmy Roan, James E Bergeron, John A Meagher and Jerry
Deutsch
1025
jected the Union's view that GHR should classify all
trainees as first class mechanics regardless of their actual
qualification
The parties discussed the training program again in
contract negotiations at the end of February, immediate-
ly before the strike, and again on 15 May
The parties adhered to their former positions regarding
the training program and upgrading employees, who had
participated in the training program. During the session
on 15 May, GHR's Meagher remarked that Union Rep-
resentative Bergeron had "made it clear that the training
program was over " It does not appear that Bergeron,
who had first joined in the negotiations on 14 February,
and had assumed leadership of the Union's negotiating
team on 28 April, rejected Meagher's assertion.8 GHR's
counsel, Meagher, suggested that GHR would upgrade
some participants to first class mechanic and others up
one classification, but not to first class mechanic. The
Union, rejected this proposal, insisting that all partici-
pants be upgraded to mechanic "A" and paid at the
higher wage rate assigned to that classification.
I find from Bergeron's uncontradicted testimony, that
throughout the 1980 negotiations, the Union believed
that GHR had not given the trainees an adequate oppor-
tunity to upgrade their skills. Bergeron also credibly tes-
tified that the Union sought to remedy GHR's neglect by
insisting that GHR grant them first class mechanic's
wages. Bergeron conceded that he made this demand
"realizing fully that they were not first-class qualified
people." Bergeron expected that if GHR capitulated on
the wage issue, it would have an incentive to go on with
the training to qualify as many of the trainees as possible
for the mechanic "A" classification. However, Bergeron
admitted that the Union never communicated these
thoughts to GHR, and did not disclose to GHR its desire
to extend the training program beyond 29 February, the
1978 contract's expiration date.
When the 1978 contract expired on 29 February, GHR
ended the training program In August, after bargaining
with the Union about the matter, GHR terminated its
maintenance department.
2. Analysis and conclusions
Contrary to the General Counsel's contention, I find
that GHR did not terminate the training program unilat-
erally. The parties had agreed that 29 February would be
the expiration date of the program. When that date ar-
rived, the parties had not reached agreement to extend
the program. Thus, the limitation expressed in their 1978
memorandum of agreement became operative. Therefore,
I find that the termination of the training program was
not the product of GHR's unilateral action, but rather
the result of collective bargaining.
I also find that in 1980, GHR afforded the Union ade-
quate opportunity to discuss the possibility of extending
the training program. Instead of addressing itself to sug-
8 Bergeron denied that Meagher had ever made such a remark to him
However, Bergeron's colleague Roan, who seemed more certain of his
answers, contradicted Bergeron and corroborated Meagher Meagher also
impressed me as a careful and forthright witness For these reasons, I
have credited Meagher rather than Bergeron
1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gestions for improving the program, the Union repeated-
ly stated that it wanted the program to end and insisted
that GHR promote all of the trainees to the mechanic
"A" classification . GHR refused . The Union persisted in
this demand . Thus, as I see it, the focus of disagreement
was not the training program, but rather the treatment of
the trainees.
The Union never suggested to GHR that the training
program should continue on condition that GHR imme-
diately upgrade the trainees. Instead, it hoped to goad
GHR into extending the program by insisting on upgrad-
ing the trainees to the mechanic "A" classification, re-
gardless of their qualifications . However, as far as GHR
knew, the Union had abandoned the training program
and was now insisting that the trainees be upgraded re-
gardless of qualification . GHR's refusal to agree to the
Union's demand foiled the Union 's tactic . This result did
not provide ground for the General Counsel 's allegation.
Accordingly, I shall recommend dismissal of the allega-
tion that GHR violated Section 8(a)(5) and (1) of the Act
by terminating the training program unilaterally.
On 16 April, Union Representatives James E. Ber-
geron and Jimmy Roan complained to GHR's Jerry
Deutsch and John A. Meagher about the cessation of the
breaker days . Bergeron reminded Deutsch and Meagher
of GHR's commitment to comply fully with the 1978
contract, except for the arbitration clause . Deutsch
argued that the 1978 contract did not provide for the
breaker day policy. Bergeron called attention to the es-
tablished practice which had also been the subject of a
grievance settlement between the parties.
GHR's records show that as early as 24 April, it paid
three unit employees at the overtime rate for their re-
spective breaker days. Thereafter on 1, 8, 15 and 22
May, GHR permitted unit employees to work breaker
days at the appropriate overtime rate. I also find from
the testimony of the General Counsel' s witnesses Jimmy
Roan, Glenn Gaubert, and Gail Simmons that they rec-
ognized that GHR was implementing the breaker day
program for at least some unit employees in May. Final-
ly, Roan admitted that GHR agreed on 21 May to
resume the breaker day program.
D. The "Breaker Day"
1. Facts
Prior - to the 1980 strike, GHR had established a system
under which unit shift employees received 8 hours of
overtime work every 28 days . This 8 hours of overtime
resulted from the plant 's continuous operation , 24 hours
per day, 7 days per week . Under the so-called "breaker
day" program GHR gave each unit employee the option
of working 8 hours of overtime every 28 days at the
overtime rate. A unit employee could either work the
overtime or take the time off. If the employee took the
time off, GHR would assign an extra employee to work
the 8 hours.
Between the inception of contract talks on 15 January,
and the end of the strike on 14 April , GHR and the
Union did not bargain about the breaker day system.
However, GHR and the Union had occasion to discuss
it. I fmd from Personnel Manager Deutsch 's uncontra-
dicted testimony that at the end of the strike , GHR ad-
vised the Union that work schedules would not return to
normal until "somewhere between 3 and 6 weeks." I fur-
ther find from Deutsch 's testimony that he told the
Union that he was having "problems getting in touch
with some of [the employees who had been on strike]."
Jimmy Roan also admitted that in April, after the strike
had ended , Deutsch "was agreeing to return employees
to their original shifts after forty-five days."
However, the breaker days' status seemed to be in
doubt during the days immediately after the strike. On
the first work day after the strike had ended, shift super-
visor Carroll Evans informed employee Glenn Gaubert
and others that henceforth they would not be working
their breaker days . Employee Gail Simmons, who was
on the negotiating team, received employee complaints
about the termination of the breaker day program. Glenn
Gaubert complained to the Union 's negotiating commit-
tee that GHR was not adhering to the breaker day
policy.
2. Analysis and conclusions
The General Counsel argued that without giving the
Union an opportunity to bargain , GHR unilaterally elimi-
nated its breaker day policy, and thus violated Section
8(a)(5) and (1) of the Act. GHR did not deny that the
Act required it to bargain with the Union before discon-
tinuing the breaker day policy. NLRB v. Williamsburg
Steel Products Co., 369 U.S. 736, 747 (1962); Allied Nod-
ucts Corp., 218 NLRB 1246 (1975). Instead, GHR con-
tends that it did not violate the Act on the ground that it
did not discontinue the breaker day policy. I find merit
in GHR's position.
I agree that GHR's management gave the returning
strikers ground for fearing that the breaker day program
was in jeopardy . A shift supervisor told them that GHR
was terminating the breaker day policy. One or 2 days
later, Personnel Manager Deutsch told union representa-
tives that the contract did not obligate GHR to maintain
that policy.
However, I find that GHR did not terminate the
breaker day program . Instead, the record showed a brief
hiatus after the strike ended. GHR gave breaker days to
unit employees as early as 24 April, 10 days after the
strikers began returning to work. I also fmd that GHR
continued to grant breaker days to unit employees and
that the program returned to its normal state on 21 May.
Nor did the evidence pursuade me that GHR's treat-
ment of the Union after the strike regarding the resump-
tion of the breaker day program ran afoul of Sections
8(d) and 8(a)(5) of the Act. Thus, right after the strike,
GHR told the Union that shift schedules would return to
normal in "somewhere between 3 and 6 weeks." GHR
also announced to the Union its intention to return unit
employees to their original shifts "after 45 days." There
was no showing that GHR avoided or foreclosed bar-
gaining about its stated intentions or that it departed
from its stated intentions without giving the Union a rea-
sonable opportunity to bargain. I shall therefore recom-
mend dismissal of the allegation that GHR violated Sec-
GHR ENERGY CORP
tion 8(a)(5) and (1) of the Act by unilaterally terminating
the breaker day program.
E. The Suspension and Discharge of Rene Elfer
1. The facts9
GHR employed Rene Elfer from January 1975 until 30
May, when Personnel Manager Deutsch terminated him.
At the time of his discharge, Elfer, a member of the
Union, was classified as an operator 1. From 1978 until
his termination, Elfer was a union steward. In 1978, Elfer
was a grievance committeeman. He also participated
fully in the strike in March and April.
On 6 March, the following letter from Elfer appeared
in "L'Observateur," a local newspaper.
Head beef
Dear Editor.
It's semi-understandable that a company like
Good Hope Refineries cannot provide toilet facili-
ties for many employees . But, it makes no sense
when the owner , Jack Stanley , can spend tons of
money on staff personnel , contractors , Rosemary
James, Inc., a greatly expanded security force, nu-
merous cameras and recording devices, etc ., to keep
OCAW out, but has little to put into the preserva-
tion of local safety, clean air, clean water or tolera-
ble sound levels.
Elfer wrote the quoted letter on his own initiative.
On 7 May, the following letter from Elfer appeared in
The Times-Picayune:
Refinery at Fault
LaPlace
Editor, The Times-Picayune:
It seems Good Hope Refinery is trying to poison
the public's mind. By offering $25,000 reward for a
conviction of sabotage (much more than even Judas
received) it is 'implied that a great deal of damage
occurred.
Relative to the company's written and oral state-
ments, during the first five weeks of the strike sabo-
tage was impossible. No OCAW workers were in
the plant. Everything went extremely well, that is,
until it was time to return to the negotiating table.
The company then filed an $82,000 damage suit
against OCAW for acts of sabotage.
My five-year experience with the refinery forces
me to conclude that behavior like this is simply
consistent with company policy-lacking honesty
and integrity.
Again, Elfer wrote the letter on his own initiative.
Two days after this second letter appeared in The
Times-Picayune, a foreman directed Elfer to appear in
9 There was no substantial issue of fact raised with regard to Elfer's
suspension and discharge I based my findings of fact in this section of
the decision upon Rene Elfer's and Personnel Manager Jerry Deutsch's
testimony
1027
Jerry Deutsch's office. There, in the presence of a guard
and employee John Vicknair, Deutsch complained about
Elfer's attitude toward GHR and his letters to the news-
papers. He described Elfer's writing as "vicious" and
"cutting." Deutsch remarked that while Elfer had the
right to express himself, GHR was not required to pro-
vide him with a livelihood, and promptly suspended
Elfer. Deutsch asked why Elfer had written the letters.
Elfer replied in substance that as a union representative,
he wanted to get its side of the story out in defense of its
reputation and the reputation of its members.
Thereafter, on 3 June, Elfer received the following
letter from GHR, signed by Deutsch, announcing Elfer's
termination effective as of 30 May:
On May 8, 1980 in my office, in the presence of
your Union Representative, Johnny Vicknair, you
were suspended indefinitely without pay effective
7:00 p.m. As discussed with you, you were suspend-
ed for making false and malicious statements calcu-
lated to expose the Company to public contempt
and/or ridicule. These statements were published on
at least two different occasions and in two different
local publications between the periods March 6,
1980 and May 8, 1980.
The Company cannot tolerate this form of disloyal-
ty and misconduct from its employees calculated to
damage its business reputation and interests. The
Company has completed its investigation as' to your
actions cited above and has decided upon termina-
tion effective immediately.
At the hearing, Deutsch admitted responsibility for
terminating Elfer. When asked to provide the reason for
his action, Deutsch replied: "For a letter which he wrote
to The Times-Picayune in May of 1980 which was publi-
cized in its editorial column." When asked "what was
wrong with that letter?" Deutsch replied:
The letter was-basically disparaged the Company
and Mr. Elfer alleged in his letter-alleged the com-
pany lacked integrity and was dishonest.
Following his termination, Elfer made an unauthorized
entry upon GHR's premises in an automobile. In a crimi-
nal proceeding growing out of this incident, Elfer was
found guilty of criminal trespass to
2. Analysis and conclusions
The General Counsel urged that Elfer's letter of 8
May constituted union activity and that GHR violated
Section 8(a)(3) and (1) of the Act by suspending and
then terminating him. GHR contended that its treatment
of Elfer did not violate the Act on the grounds that his
letter of 8 May was neither union nor concerted activity,
but "was an attempt to disparage the company's business
policies in a manner reasonably calculated to harm
[GHR's] reputation and reduce its income (GHR's brief
10 In evaluating Elfer's testimony, I noted his conviction for trespass
As this conviction did not involve dishonesty, it did not affect my assess.
ment of Elfer's credibility
1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
p. 5)." I fmd, contrary to GHR, that Elfer's suspension
and termination violated the Act.
GHR's letter to Elfer and Deutsch's remarks to Elfer
suggested that both letters provoked GHR to first sus-
pend Elfer and then to terminate him. However, the
timing of these responses and Deutsch's testimony show
that it was Elfer's letter in The Times-Picayune of 8 May
which was the direct cause of GHR's actions. Thus,
GHR greeted Elfer's letter of 6 March with silence.
However, 2 days after the second letter surfaced in The,
Times-Picayune, Deutsch summoned Elfer to his office,
scolded him about his letters and suspended him. Later,
Deutsch's testimony and GHR's brief focused on the
letter of 8 May. Thus, I find that although Elfer's first
letter displeased GHR, it was his second missive which
motivated GHR to punish him.
GHR's contention that Elfer's letter of 8 May did not
come within the protection of Section 7 of the Act""
overlooks the explicit language of the statute which af-
fords employees the right to "assist labor organizations."
By his letter to The Times-Picayune, Elfer was attempt-
ing to assist the Union in the face of GHR's allegations
that the Union was responsible for acts of sabotage
against GHR's refinery.
By his letter, Elfer expressly sought to defend the
Union's image in the community. Surely, the Union's at-
tempt to organize employees and gain strength among
the Times-Picayune's readers would suffer if they be-
lieved that Union's leadership sponsored, or encouraged
its members to resort to sabotage or other unlawful con-
duct as economic weapons in support of a strike.
Elfer also wrote out of concern for the impact of
GHR's litigation upon the Union's image among GHR's
employees. These same employees had recently support-
ed the economic strike referred to in the letter. GHR's
damage suit was likely to convince bargaining unit em-
ployees that they had saddled themselves with an irre-
sponsible collective-bargaining representative, and cause
them to distance themselves from the Union. The result-
ing loss of employee support might be sufficient to
weaken its bargaining position, and ultimately deprive
the Union of its representative status.
That Elfer acted alone in attempting to vindicate the
Union and his fellow Union supporters did not deprive
him of the protection of Section 7 of the Act. For as the
Court recognized in NLRB. v. City Disposal Systems, 465
U.S. 822, 832-833 (1984):
When an employee joins or assists a labor organiza-
tion, his actions may be divorced in time, and in lo-
cation as well, from the actions of fellow employ-
ees. Because of the integral relationship among the
employees' actions, however, Congress viewed each
employee as engaged in concerted activity. The
lone employee could not join or assist a labor orga-
nization were it not for the related organizing ac-
tivities of his fellow employees. Conversely, there
11 Sec . 7 of the Act provides in relevant part: "Employees shall have
the right to self-organization , to form, join , or assist labor organizations,
to bargain collectively through representatives of their own choosing,
and to engage in other concerted activites for the purpose of collective
bargaining or other mutual aid or protection."
would be limited utility in forming a labor organiza-
tion if other employees could not join or assist the
organization once it is formed.
Contrary to GHR, the Board's decision in Meyers In-
dustries, 268 NLRB 493 (1984), does not apply to Elfer.
In that case, the Board held that in the absence of a
union and a collective-bargaining agreement, an employ-
ee's assertion of a right that can only be presumed to be
a matter of concern to his or her fellow employees is not
concerted activity within the meaning of Section 7 of the
Act. Thus, Meyers does not apply to an employee assist-
ing a union . In the instant case, Elfer's letter to The
Times-Picayune was designed to assist the Union in its
role as bargaining representative. The economic strike in
which he and other unit employees had recently joined
had the same purpose. Here, indeed, was the concerted
action envisioned by Congress when it enacted Section 7
of the Act.
Nor do I find merit in GHR's contention that Elfer's
letter to The Times-Picayune deprived him of the Act's
protection because it disparaged GHR's business policies.
The Court, in Linn v. United Plant Guard Workers of
America, 383 U.S. 53, 61 (1966), observed that although
the Board permits parties to labor disputes to make "in-
temperate, abusive and inaccurate statements" about their
opponents, the Board "does not interpret the Act as
giving either party license to injure the other intentional-
ly by circulating defamatory or insulting material known
to be false. [Citation omitted.]" Accord: e.g., S-B Mfg.
Co., 270 NLRB 485 (1984). Here, GHR has not shown
that Elfer's letter contained assertions which he knew to
be false at the time he issued it. Moreover, I do not fmd
that his letter was "so flagrant, violent, or extreme as to
render [Elfer] unfit for further service. (citations omit-
ted)." Dreis & Krump Mfg., 221 NLRB 309, 315 (1975).
GHR's reliance on the teachings of NLRB v. IBEW
Electrical Workers Local Union Na 1229, 346 U.S. 464
(1953), is also misplaced. In that case, the Court held
that the employer, Jefferson Standard Broadcasting
Company did not violate Section 8(a)(1) of the Act when
it discharged employees for publicly distributing hand-
bills which disparaged Jefferson Standard's television
broadcasts and had no discernable connection with a
pending labor dispute. Here, Elfer's letter did not dispar-
age GHR's products, or otherwise seek to impair GHR's
relations with customers, suppliers or other business con-
tacts. In addition, Elfer's letter was a clear manifestation
of support for the Union in its dealing with GHR and
the allegation of sabotage. I therefore reject GHR's con-
tention that the result in NLRB v. Electrical Workers
Local 1229, supra, should obtain here.
In sum I find that by suspending and later terminating
employee Rene Elfer, GHR interfered with, restrained,
and coerced him in the exercise of his right to join or
assist the Union, and also discriminated against him be-
cause of his union activity. Accordingly, I find that
GHR violated Section 8(a)(3) and (1) of the Act. S-B
Mfg. Co., supra, 270 NLRB at 489.
GHR ENERGY CORP 1029
F. The Disloyalty Policy
1. Facts12
During April and May, Personnel Manager Deutsch
and GHR's president, John R. Stanley, discussed the
need to draft a company policy on employee disloyalty
Stanley asked if 'GHR "had a policy on loyalty or disloy-
alty." Deutsch responded that from his point of view "it
was relatively clear to the employees that they were ex-
pected to be loyal to the company." At Stanley's sugges-
tion, Deutsch drew up the following loyalty policy
which GHR promulgated to its employees on 21 May.:
POLICY STATEMENT ON DISLOYALTY
Any actions or statements made by employees
against the Company's interests which expose the
Company to public contempt and/or ridicule or
damages its business reputation or interferes with its
ability to expand and grow shall be considered as
disloyalty.
It was GHR's intention to enforce this policy by discipli-
nary action , including termination . GHR did not give the
Union or its members any notice of its intent to promul-
gate and implement the disloyalty policy. Nor did GHR
give the Union any opportunity to bargain about the
policy and its implementation.
2. Analysis and conclusions
The General Counsel contended that GHR violated
Section 8(a)(5) and (1) of the Act by unilaterally promul-
gating and implementing its disloyalty policy. I find that
the broad language of GHR's disloyalty policy, and the
penalties, which GHR intended to impose upon viola-
tions, impacted directly upon the unit employees' speech
and conduct on and off GHR's premises, including their
union activity or other concerted activity protected by
Section 7 of the Act. I further find, from this effect upon
the unit employees, that the disloyalty policy was a term
and condition of employment of the bargaining unit em-
ployees within the contemplation of Section 8(d) of the
Act. Miller Brewing 'Co., 166 NLRB 831, 832 (1967),
enfd. 408 F.2d 12 (9th Cir 1969); Timken Roller Bearing
Co., 70 NLRB 500, 502 (1946), enf. denied on other
grounds 161 F.2d 949 (6th Cir. 1947). Therefore, the Act
required that GHR provide the Union with an opportu-
nity to bargain about the new policy before imposing it
on the unit employees. NLRB v. Williamsburg Steel Prod-
ucts Co., 369 U.S. 736, 747 (1962).
GHR argued that it had no duty to bargain with the
Union on the ground that it was formulating a preexist-
ing loyalty policy. If the record had established this de-
fense, I would agree. Murphy Diesel Co., 184 NLRB 757,
762 (1970), enfd. 454 F.2d 303 (7th Cir. 1971).
However, GHR's attempt to show the existence of an
established loyalty policy fell short of the mark. In seek-
ing to establish its defense, GHR relied upon Deutsch's
testimony that "[t]he Company had always expected loy-
12 The facts regarding GHR's disloyalty policy are not in dispute In
making my findings of fact regarding the disloyalty policy, I relied on
Jerry Deutsch's testimony
alty from its employees," and that the policy promulgat-
ed on 21 May "was basically reducing to writing what
the company had expected for years at the plant, and
what had been mentioned before in other publications,
but had never been memorialized into a formal policy."
However, closer examination of Deutsch's testimony
provided a different picture than that suggested by
GHR. Thus, the excerpts of testimony upon which GHR
relied, did not include Deutsch's further assertion that
GHR "wanted to make it very clear as to what the com-
pany expected from its employees and-what the compa-
ny's position was." This language and his conversation
with President Stanley showed that GHR did not have a
definite policy prior to 21 May. For Stanley instructed
Deutsch "to write a policy on disloyalty so there would
not be any confusion."
Deutsch's further testimony showed that he considered
his task to be the drafting of a policy. Indeed, when
Deutsch had completed this assignment , he asked Stan-
ley: "if he had any changes or additions." In my view,
Deutsch's testimony, when fully considered, showed that
prior to issuance of the policy on disloyalty on 21 May,
GHR had only an informal policy defining employee
loyalty. His testimony showed that he transformed this
ill-defined system of rules into a formal and definite
statement of limitations on employee speech and con-
duct, which was to be enforced by disciplinary action,
including termination. In sum , Deutsch's disloyalty
policy was a new rule affecting the unit employees and
therefore was a mandatory subject of bargaining. Har-
vard Folding Box Co., 273 NLRB 841, 848-849 (1984).
Miller Brewing Co., supra, 166 NLRB at 831 fn. 1.
GHR's reliance upon the Board's decision in Capital
Times Co., 223 NLRB 651 (1976), was misplaced. In that
case, the Board found that an employer did not violate
Section 8(a)(5) and (1) of the Act, when it unilaterally
imposed a code of ethics upon its bargaining unit em-
ployees in an effort "to protect and enhance the credibil-
ity and quality of its newspaper." Capitol Times Co.,
supra, 223 NLRB at 651. In reaching this conclusion, the
Board held that the code of ethics was not a subject of
mandatory bargaining because it had no impact upon the
employees' wages and did not affect their terms and con-
ditions of employment. Ibid. In the instant case, GHR's
broad policy statement on disloyalty, which it intended
to enforce by terminating or otherwise disciplining trans-
gressors, imposed constraints upon the employees' speech
and conduct, both at the GHR facility and elsewhere, in-
cluding their participation in activity protected by Sec-
tion 7 of the Act Thus, unlike the code of ethics in Cap-
ital Times, supra, GHR's policy statement on disloyalty
had a substantial impact upon its employees ' terms and
conditions of employment and was therefore a subject of
mandatory bargaining.
Equally without merit is GHR's further contention
that under the 1978 collective-bargaining agreement,
GHR retained its power to promulgate a disloyalty
policy without bargaining with the Union To support its
position, GHR relied upon the following portion of the
mangement-rights provision in its 1978 contract with the
Union.
1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Except as specifically abridged, delegated , grant-
ed, or modified by this Agreement , or any supple-
mentary agreements that may hereafter be made, all
the rights, powers and authority the Company pos-
sessed prior to the certification of the Union are re-
iterated by the Company and remain exclusively
and without limitation within the rights of manage-
ment, and are not subject to the grievance proce-
dure or arbitration , nor does the exercise thereof re-
quire any prior discussion or negotiation with the
Union.
As I have stated above , the Union's right to bargain
about terms and conditions of employment flows from
the Act . Further, the Board , has recognized that any
waiver of such a right must be "clear and unmistakable."
Lamont 's Apparel, 268 NLRB 1332, 1335 (1984). Here,
the contract language upon which GHR relied did not
constitute a "clear and unmistakable" waiver. The
quoted clause contained no reference to a policy regard-
ing employee loyalty, I find therefore that the quoted
contract language did not qualify as a waiver of the stat-
utory right to bargain about such a policy . I fmd, there-
fore that GHR violated Section 8 (a)(5) and (1) of the
Act by unilaterally promulgating its policy statement on
disloyalty on 21 May.
I also find that GHR by its policy statement on disloy-
alty, excessively restrained its employees' union and
other concerted activity protected by Section 7 of the
Act, by imposing excessively broad restrictions upon
their actions and statements . American Cast Iron Pipe Co.,
234 NLRB 1126, 1130-1132 (1978), enfd . 600 F.2d 132
(8th Cir. 1979). See also, Linn v. United Plant Guard
Workers Local 114, 383 U. S. 53, 62-63 (1966); and United
Parcel Service , 230 NLRB 1147 , 1150 (1977). Although
the consolidated complaint did not allege that the disloy-
alty policy statement unlawfully interfered with its em-
ployees' rights under Section 7 of the Act , the matter
was fully litigated and the facts support my findings
Caruso & Ciresi, Inc., 269 NLRB 265 fn . 2 (1984).
In finding that GHR 's policy statement was excessive,
I looked to the entire statement of policy which did not
limit its proscriptions to malicious or vicious statements,
or those false assertions designed to injure the employer's
product . American Cast Iron Pipe Co., supra, 234 NLRB
at 1131 . I also noted the portion which reads : "[o]r inter-
feres with its ability to expand and grow . . . ." I find that
employees reading that language were likely to infer that
the prohibition extended to all employee speech, and
conduct in support of the Union's economic demands or
a union's demands for recognition and collective bargain-
ing. For GHR might have considered such speech or
conduct as interference with "its ability to expand and
grow."
Accordingly, I find that GHR violated Section 8(a)(1)
of the Act by promulgating its policy statement on dis-
loyalty.
G. The Suspensions of John L. Vicknair and Richard
E. Hodges, Sam LeBlanc 's Letter, and GHR's Alleged
Failure to Provide Information to the Union
1. Facts's
GHR employed John L. Vicknair III, from June 1975,
until it indefinitely suspended him on 30 May. At the
time of his suspension , Vicknair was a No . 1 and No. 2
breaker operator.
Vicknair joined the Union in November 1975 and
became an active member . From 1976 until 1978, he was
a member of the Union's safety committee . He assisted
the committee chairman and made safety inspections of
GHR's plant.
Vicknair was also a steward from 1978 until his sus-
pension on 30 May. During his stewardship, Vicknair
represented two employees in disciplinary meetings with
GHR's management . As steward, Vicknair represented
employee Roy Homey in a disciplinary session with Per-
sonnel Manager Jerry Deutsch, during the latter part of
1979. The issue was Homey 's absences from work on 7
May.
Vicknair also appeared in Deutsch's office with Rene
Elfer. In this instance, GHR was considering Elfer's
letter to The Times-Picayune , as ground for his termina-
tion, which I have considered above.
Vicknair became chairman of the Union's safety and
health committee in 1978 and retained that position until
his indefinite suspension. As chairman , Vicknair met
monthly with GHR's representatives to discuss safety
problems and hazards . Vicknair also filed complaints
with the Occupational Safety and Health Administration
(OSHA) and other Federal agencies.
Early in 1979, Vicknair and employee Gail Simmons,
who was vice president of the Union's local, filed a com-
plaint with OSHA, after a plantwide inspection revealed
safety problems which the Union and GHR could not re-
solve. GHR's president, John Stanley , reported to Vick-
nair, Simmons, and the Union that the complaint had im-
paired GHR's insurance coverage with Lloyd's of
London. He then assured Vicknair, Simmons, and the
Union's International representative, Bergeron, that
GHR would attempt to resolve the safety problems.
Consequently, the Union requested withdrawal of the
complaint on 16 February 1979.
Later in 1979, Vicknair and Simmons filed three more
complaints with OSHA regarding alleged safety viola-
tions at GHR's refinery. Following OSHA 's issuance of
citations in these cases, GHR, OSHA, and Vicknair en-
tered into settlement agreements . In each settlement,
GHR agreed to pay a penalty for alleged violations.
In August 1979, Vicknair complained first to GHR Su-
pervisor Eddie McLeod and then to Superintendents
Tom Grace and Glen Ireland , and Safety and Fire Pro-
tection Manager Reggie Brown , and finally to President
Stanley that a faulty exchanger in the plant's crude oil
system had caused oil to be sprayed on employees. After
Ss Except as noted below , there were no issues of credibility raised by
the testimony regarding the facts presented here.
GHR ENERGY CORP.
Vicknair had presented his complaint to Stanley, GHR
adjusted the exchanger to Vicknair 's satisfaction.
In September 1979, Vicknair signed a grievance and
complained to President Stanley in the presence of man-
agement members Glen Ireland , Tom Grace , and Reggie
Brown , about a liquid propane gas tank . Vicknair told
Stanley that a change in the pipe system associated with
that tank had increased the line pressure to in excess of
300 pounds and that the pipe system was rated for only
150 pounds . Stanley agreed to remedy Vicknair's com-
plaint.
Later in the same month Vicknair observed that GHR
had not reconnected a circulation line on the tank system
and raised the matter with Superintendent Tom Grace.
Grace rejected Vicknair 's contention that the circulation
line was necessary to the system 's safe operation. Where-
upon , Vicknair requested and obtained another meeting
with John Stanley Vicknair explained his position. Su-
perintendent Grace delivered a contrary argument, Stan-
ley agreed with Vicknair and ordered the reconnection
of the circulation system.
At a safety meeting at the end of September 1979,
Vicknair conversed about the tank problem with GHR's
manager of safety and fire protection , Reggie Brown,
who was a supervisor within the meaning of Section
2(11) of the Act. Brown asked if the Union was satisfied
with the tank 's condition . In substance , Vicknair an-
swered yes. In the ensuing conversation , Brown warned
Vicknair . "Johnny, you know, you best watch your step,
`cause [Superintendent ] Glenn [Ireland ] and them is
watching you.
In November 1979, Vicknair met with Reggie Brown
regarding a large fire at GHR 's east plant, involving a
heater . Brown asserted GHR's intention during the next
several days to prepare the heater for start up. Vicknair
requested the x-rays and work list showing the work
done on the heater Brown advised Vicknair to seek the
information from an engineer , Walter Breakweith Vick-
nair sought and obtained Breakweith 's assurance that
GHR would provide the requested x-rays and work
orders.
However , when GHR did not produce the x-rays,
Vicknair enlisted the assistance of employee Richard E.
Hodges. When Hodges failed , to obtain the x -rays, Vick-
nair pressed Reggie Brown for them.
Brown and Vicknair became embroiled in a discussion
of the employees ' concern about another fire or explo-
sion because of faulty repair of the heater and the
Union 's need for the heater x-rays. Vicknair escalated the
tension surrounding the discussion . He warned Brown
"Well, we got several operators that are considering pos-
sibly not starting up the heater cause they're this scared.
" Brown retorted with a warning that GHR would
discipline anyone who refused to start the heater. Vick-
nair warned that the Union would "take it from there."
One or two days later , GHR employees began ready-
ing the heater for startup . Within a few days, Vicknair
made the heater the subject of a complaint to OSHA.
On or about 10 December 1979, Vicknair , in Reggie
Brown 's presence , assisted the OSHA inspector in exam-
ining the disputed heater. While waiting for the inspector
to retrieve some literature from his car , Vicknair and
1031
Brown stood talking at a GHR guard shack . Brown ad-
vised Vicknair that he had "better cool it ," as Vicknair
had caused "too many problems for management."
Brown warned that the first time Vicknair "messed up"
Glen Ireland and other supervisors would "nail" him.
During the strike, from 1 March until it ended on 14
April , Vicknair was the Union 's strike chairman. Vick-
nair presided over the picket captains and saw to the
manning of picket lines.
Following the end of the strike in mid -April , Vicknair
returned to work and resumed his plant safety responsi-
bilities for the Union . However , GHR had changed his
duties and supervision. On his first day back , GHR as-
signed Vicknair to shift foreman Herman Schneider, in-
stead of Oliver Vicknair (no relation to John), who had
been John Vicknair 's shift supervisor on the eve of the
strike. GHR also changed his work assignment from
firing heaters to unloading salt trucks.
When John Vicknair asked Oliver Vicknair why GHR
had changed his shift supervisor, Oliver answered that
GHR made the change, hoping that it would "settle
[John] down." Oliver Vicknair provided no explanation
of his answer.
In mid -May, Vicknair conferred with Wilton Dice,
who had replaced Reggie Brown as GHR's safety man-
ager on 21 April . 14 Vicknair criticized the location of a
fabrication shop near process heaters at GHR's east
plant Vicknair expressed concern about the high noise
level at that location and the danger of fire and explo-
sion.
Dice and Vicknair also discussed the new arrangement
under which Dice no longer reported directly to Presi-
dent Stanley but, instead , to Superintendent of Oper-
ations Glen Ireland. Vicknair expressed concern that Ire-
land would sacrifice safety for production. '
Returning to his complaint about the fabrication shop's
location , Vicknair urged relocation , and announced his
readiness to seek OSHA 's help in the matter . Dice said
that GHR would look into Vicknair's concerns and get
back to him Dice did not get back to Vicknair, whose
suspension ensued on 30 May
GHR employed Richard E . Hodges (referred to as
Ricky Hodges in the complaint) from 6 September 1976
until it suspended him on 29 May At the time of his sus-
pension , GHR employed Hodges as a board operator,
under shift foreman Herman Schneider.
Hodges joined the Union immediately after his proba-
tionary period and remained a member until his suspen-
sion on 29 May. He was a steward for 1 year , from 1979
to 1980.
During his stewardship , Hodges filed grievances
against GHR on behalf of himself and his fellow employ-
ees. He also made suggestions to supervisors and superin-
tendents regarding employee health and safety.
In September 1979, Hodges filed a grievance for him-
self and two other employees regarding Tank 130.
Hodges complained that GHR had changed this tank
from propane storage to gasoline operations without dis-
14 The parties stipulated , and I find, that Dice was a supervisor within
the meaning of Sec 2 ( 11) of the Act
1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cussing it with the Union as the 1978 contract re-
quired . 16 Specifically, Hodges believed the parties
should have discussed whether the change would require
the addition of a unit employee or only the addition of a
task to an employee 's job- description. Hodges did not
pursue this grievance further and did not learn of its
result.
In his second grievance , Hodges alleged that an engi-
neer, Raj Kilkarney , who was not a bargaining unit em-
ployee, had performed unit work . t 6 Again, Hodges did
not know the outcome of this grievance.
In November 1979,• Hodges filed another grievance
against Kilkarney. Hodges complained that Kilkarney
had assigned maintenance employees to perform work
which operations employees usually performed . Hodges
also claimed that this misassignment impaired safety.
Hodges filed two more grievances . However, he could
not recall their subject matter.
Hodges also concerned himself with plant safety. At
least once each week during his employment at GHR, he
discussed safety hazards with supervisors . In the spring
of 1978 , he persuaded management to eliminate a fire
hazard.
Later that same year, at the request of a union health
and safety committeeman, Hodges concerned himself
with an OSHA plant inspection . In the course of the in-
spection, GHR's then safety manager , Bob Pierce, pres-
sured Hodges to stop pointing out hazards to the OSHA
inspector.* Nevertheless , Hodges showed several more
hazardous situations to the inspector , who looked at only
about half of the plant before leaving . Thereafter, Oper-
ations Superintendent Pete Deshelley told Hodges that,
thanks to Hodges, GHR suffered a $5,000 fine , and that,
because of him, GHR would not grant a Christmas
bonus to the union employees.
Throughout his employment at GHR , Hodges voiced
safety complaints to his shift foreman, Herman Schnei-
der. At the end of November 1979, a GHR furnace
caught fire. Two or three days later, Schneider advised
Hodges that the furnace was repaired and that manage-
ment wanted the furnace back in service. Schneider di-
rected Hodges and the other employees, who were
present, to light it that night . Hodges protested that the
repairs to the furnace were - inadequate. Schneider re-
plied , that he understood how Hodges felt, but that the
employees would suffer "disciplinary action" if they did
not light the furnace..
Following his discussion with Foreman Schneider,
Hodges consulted Health and Safety Chairman John
Vicknair. Vicknair advised Hodges to comply carefully
l a Art. III, sec. 11 provided:
In the event the Company installs new processes or materially
changes the existing process in a department , the Company shall
meet with the Union to determine if such new installation is to be a
new department or an addition to the already existing departments.
In the events the parties cannot resolve the issue , the initial vacan-
cies shall be filled from plant-wide bidding.
• 16 Art. XXV of the 1978' contract provided in pertinent part:
Section 1. Persons outside the bargaining unit and not covered by
this Agreement may perform work normally done by employees
who are covered by this Agreement when:
(a) Bargaining unit employees are not immediately available and
only for periods of time needed to secure a qualified bargaining
unit employee to relieve him; or....
and slowly with Schneider's order . Before lighting the
furnace, Hodges told Schneider that he and - his col-
leagues would light the furnace slowly, and under pro-
test.
In mid-December 1979, Hodges told Superintendent
Billy Weemer that Superintendent Glen Ireland had la-
belled Hodges and John Vicknair as "troublemakers" be-
cause they had qualms about starting the furnace.
Weemer said he knew about the accusation . Hodges
denied the accusation and insisted that he and Vicknair
were truly concerned about plant safety . Weemer said he
would take the matter up with Ireland.
On 25 December 1979, a second furnace suffered
damage in a fire . Hodges advised his shift foreman,
Schneider, that the furnace packing and valves should be
changed . Hodges also inquired whether Schneider knew
that the valves were damaged . In substance , Schneider
told Hodges that he was aware of the damage to the
valves but that GHR did not intend to change either the
packing or the valves. After warning of the danger of
fire and explosion , Hodges sought and received Schnei-
der's consent to talk to Superintendent Weemer.
Several days later, after the employees had restarted
the furnace, Hodges confronted Weemer . Weemer con-
ceded that the valves and the lack of packing had cre-
ated a hazard , but asked Hodges to appreciate Weemer's
position as a superintendent . Not to be denied , Hodges
suggested that changing the packing in the valves would
require no more than 15 minutes . Weemer rejected the
suggestion . Thereafter, GHR changed the faulty valves.
The misadventure of nonunion employee Chester For-
tenberry early on the morning of Saturday , 24 May, led
to GHR's decision to suspend Vicknair and Hodges in-.
definitely on 30 May. GHR hired Fortenberry in March,
during the strike, and employed him as a No . 12 operator
in its utilities department . Fortenberry's duties included
opening and closing valves and testing water samples.
On 24 May, beginning at 2 or 3 a .m., Fortenbery suf-
fered harassment, while working at GHR's plant. During
Fortenberry's shift on the night of 23-24 May, which was
from 11 p .m. until 7 a.m., only one shift foreman and
four employees, including Fortenberry , Vicknair, and
Hodges were working in the same vicinity of the plant.
Fortenberry also worked a second shift on 24 May, until
2' p.m., when he went home.
He did not return to the GHR plant until 28 May,
when he resigned. On the same day , he provided GHR
with the following written statement regarding the
events during his shift on 24 May, which had precipitat-
ed his resignation:
At about 3:00 AM Saturday Morning, May 24,
1980 I was in the utilities lab in the West Plant
when the door was barred from the outside and
then extremely high - pressure water was applied to
the sides of the building which was approximately
10 X 10 X 5. Realizing the extreme danger that sur-
rounded me , I immediately kicked the door open
.and escaped to safety.
Later on the same morning , I observed , from an
elevated platform, that 3 quart bottles were being
thrown at the building that I previously had occu-
GHR ENERGY CORP. 1033
pied. After the area was cleared of the people who
were harassing me, I noticed the area where the
broken glass was had been saturated with kerosene.
I believe this was intended to do grave bodily harm
to me
After returning back to my duty station, a strong
odor, which could have been toxic because it irritat-
ed my eyes and throat, was in the lab
I believe that all of the above was due to the apa-
thetic attitude of the shift foreman on duty and his
neglect for the safety and welfare of myself and has
caused me and my wife extreme mental and finan-
cial distress.
_ That same day, Fortenberry discussed his intention to
resign with Superintendent Ireland and other supervisors.
Fortenberry rejected offers of transfer saying: "Thank
you, but no thank you." He then left Ireland's office and
went to GHR's security office
Security Supervisor Frederick J. Oubre, after listening
to Fortenberry's report of his misadventure, presented a
stack of individual photographs for Fortenberry's perus-
al. Fortenberry identified Vicknair, Hodges, and employ-
ee Bradley Emerson as "the guys that had been michie-
vous on [his] shift.. . ." However, upon further reflec-
tion, Fortenberry told Oubre that he was uncertain of
Emerson's involvement, but that he was sure of Vick-
nair 's and Hodges'.
Oubre's investigative report recited Fortenberry's iden-
tification of Vicknair and Hodges and the following ac-
count of his experience on the morning of 24 May:
Mr. Fortenberry then advised that on Saturday,
May 24, 1980 he was working inside a portable
building used as a lab on the west plant by the con-
trol room. He heard some subjects talking outside
of the building when all of sudden something (liquid
substance) started coming through the crack in the
door. At this time, he jumped up and started to exit
the building but the door would not open. Mr. For-
tenberry then stated he panicked and stepped back
and kicked the door and ran out Once he was out,
he noticed that the door had been forced closed
from the outside and that someone had put the fire
monitor on and was shooting at the portable build-
ing he was in Mr. Fortenberry stated that he felt
the union employees working in operations had
done this because they were the only employees
working in that area. He then took his lunch and
walked to the security guard shack and asked secu-
rity officer Bill Stinnet if he could leave his lunch in
the guard shack, which he did.
Mr. Fortenberry did not tell security officer Stin-
net what had happened Mr. Fortenberry then re-
turned to the area of the incident and smoked a cig-
arette in the smoking area . He then climbed up the
tower next to the control room to see if anyone was
around the portable lab. He then noticed 2 union
employees standing by the control room. He identi-
fied one as being Johnny Vicknair and the other as
being Mr. Hodges. As he watched them, he noticed
a quart bottle filled with liquid tossed into the air
coming from the area where the 2 union employees
were standing. Mr. Fortenberry said that he saw
three bottles tossed as if they were thrown in an un-
derhand fashion, one breaking next to a transformer
which was fenced off in the back of the portable lab
and the other two fell to the ground and broke
right next to the portable lab.
Mr. Fortenberry thinks the union employees
thought he was inside of the building when the bot-
tles were tossed.
On 28 May, Fortenberry consulted Attorney Daniel E.
Becnel regarding the circumstances which caused him to
resign . By letter of 29 May, to Superintendent Ireland,
Becnel announced Fortenberry's intention to file a civil
action against GHR and to report the incident to the
FBI. Becnel also stated that Fortenberry had named
"Danny Hodges" and "Johnny Vicknair" as being "re-
sponsible for the harrassment." I find from Jerry
Deutsch's testimony that GHR did not receive Becnel's
letter until after he had suspended Vicknair and Hodges
on 30 May. However, I also find from Vicknair's testi-
mony and Security Supervisor Oubre's report that on
that date, GHR's Deutsch was aware that Fortenberry
had contacted Attorney Becnel and was considering a
suit against GHR.
On 28 May, Fortenberry also told Deutsch about the
incident of 24 May. Fortenberry repeated essentially
what appeared in Oubre's report.
On the evening of 30 May, prior to the commence-
ment of their 11 p.m. to 7 a.m. shift, Deutsch summoned
Vicknair and Hodges to the main office. There, in a con-
ference room, in the presence of security guard Fred
Carter, Security Supervisor Oubre and employee Lionel
Comeau, who was representing the Union, Deutsch an-
nounced Fortenberry's resignation and his allegation of
harassment . Deutsch also reported that Fortenberry had
contacted Attorney Becnel, and might sue GHR.
Deutsch told Vicknair and Hodges of Fortenberry's
complaint that he had suffered harassment. He also told
them that Fortenberry had named them as his torment-
ers. 17
Vicknair and Hodges denied the allegations . However,
they rejected Deutsch's offer of polygraph tests. Deutsch
suspended them immediately pending further investiga-
tion.
Deutsch instructed Vicknair and Hodges to return
their badges to GHR's security office. He also agreed to
permit them to remove their personal items from the
17 Vicknair testified that Deutsch had stated that Fortenberry had
named Vicknair, Hodges "and several others " However, Oubre's report
and Deutsch's testimony showed that Fortenberry incriminated only
Vicknair and Hodges Also, Hodges' account of Deutsch's remarks did
not corroborate Vicknair's version I find it unlikely tht Deutsch, whose
testimony evidenced a good grasp of Fortenberry's complaint, said any-
thing about "several others " In assessing Vicknair's credibility, I noted
that he seemed anxious to repeat his assertion that Fortenberry had ac-
cused Vicknair, Hodges, and several other employees, but that Deutsch
was addressing himself only to Vicknair and Hodges Further, on cross-
examination , Vicknair seemed overly defensive and reluctant to admit
any interest in whether Fortenberry was a union member . In sum, I re-
jected Vicknair's testimony because his demeanor strongly suggested that
he was partial to the General Counsel's cause
1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
plant, under escort by a security guard . Hodges accepted
the opportunity to gather up his belongings . He went
into the plant area with guard Fred Carter .' 8 Oubre es-
corted Vicknair to the plant parking lot , checked the
trunk of Vicknair's automobile , took his I .D. badge, and
watched Vicknair leave.' 9
Thereafter, GHR kept Vicknair and Hodges on indefi-
nite suspension . At an unemployment hearing , which the
State of Louisiana conducted on or about 30 July, Per-
sonnel Manager Deutsch testified that he was investigat-
ing the Fortenberry incident.
I find from Deutsch 's testimony, that from 30 May
until 30 July, two or three employees , hired during the
strike, complained of harassment and abuse by other em-
ployees . The complainants did not know the names of
their assailants . However, they provided physical de-
scriptions , one of which Deutsch identified as being
Vicknair's.
Employee Vernon Mars complained about two inci-
dents of harassment, one in early May, and , a second at a
later date , which Deutsch could not recall . Deutsch con-
cluded from Mars' description that Vicknair was respon-
sible for both incidents.
On 9 June , International Representative Jimmy Roan,
by a letter, on the Union's behalf, requested information
from GHR regarding the Vicknair-Hodges suspensions.
One week later, GHR responded , sending Fortenberry's
statement, Attorney Becnel 's letter and Oubre 's report to
the Union . Roan explained that the Union needed the in-
formation "to intelligently and effectively represent .. .
Vicknair and Hodges and to properly evaluate the al-
leged incidents resulting in their suspension."
On 6 November, Roan, in a second letter for the
Union sought further information regarding Vicknair's
and Hodges ' suspensions . Specifically, Roan asked for in-
formation regarding "the progress of [GHR's] investiga-
tion," "any evidence which [GHR] has received during
the course of its investigation and which has not previ-
ously been furnished to the Union" whether GHR had
terminated Vicknair and Hodges and the dates and rea-
sons for the terminations . According to Roan, the Union
sought this information to protect Vicknair's and
Hodges' seniority.20
GHR did not give a written response to the Union's
second request for information . On 11 or 12 February
1981 , Personnel Manager Deutsch responded orally to
the Union's local vice president, Gale Simmons. Under
examination by counsel for the General Counsel,
Deutsch portrayed his verbal response as follows:
18 Oubre testified that he thought "Bob Bartell escorted Hodges off
the refinery." However, as he seemed uncertain, I rejected this testimony.
Instead, I credited Hodges, who seemed to be giving his honest recollec-
tion of his departure from the refinery.
1s Vicknair testified that Oubre remarked that there was insufficient
evidence to show that Fortenberry had suffered harassment . However, as
Oubre impressed me as the more candid witness, I credited his denial that
he made such a remark to Vicknair.
80 Art. XXV, Sec. 2(9) of the 1978 contract provided in pertinent part;
An employee's seniority shall cease of the employee:
(9) Is off the Company's active payroll for any reason other than
military service for more than eighteen (18) months.
A. Well, as I said , I recall talking to several
people about it. I talked to Gale Simmons. I feel
like I had a • conversation across the bargaining
table. I recall several occasions when we would dis-
cuss pending disciplinary actions on Hodges and
Vicnair after the May 29-or May 28 suspension.
Every time we would have a discussion across
the bargaining table, we would review who was out
on suspension, who had been - terminated that the
union wished to have reinstated . And at that time
they would ask-you know , anybody that was
pending, they would ask the status of basically.
So we had several discussions . It might have
been with Bergeron . It might have been with Sim-
mons. It might have been with Jimmy Rowan.
But at that point all responses from the company
on the Vicnair/Hodges were verbal.
Q. Do you specifically recall talking to Jimmy
Rowan, who sent you the letter , and responding to
him about what he requested in this letter?
A. Only from the standpoint of him being in a
bargaining session, sitting at the table alongside of
Simmons or Mr . Bergeron . At that point in time,
most of the conversation came from Mr. Bergeron
and Mr . Simmons on behalf of the union. So that's
who I would have been talking to.
Q. Did you tell Mr. Rowan verbally that you be-
lieved the-your conversation with Vernon Mars
had given you reason to keep the investigation
open?
A. No.
Q. Well, this was further evidence to you that
you thought Johnny Vicnair was guilty or some-
thing, wasn't it?
A. No, I didn 't say that . I said that it was part of
my continuing investigation, and that there were
employees who were coming forward and telling
me that they were being harassed-or had been har-
assed in the plant. And Mars was one of them.
I was not about to give the union Mars' name.
I find from Roan's testimony that he never received
any reply to his letter of 6 November to GHR. I also
find from my appraisal of Deutsch 's vague, tentative and
at times speculative, reminiscences , that GHR never pre-
sented any oral response to the Union's second request
for information regarding Vicknair and Hodges.
On 11 or 12 February 1981, Deutsch told the Union
that GHR "would be willing to polygraph [Vicknair and
Hodges]" and that GHR would not offer reinstatement
to them until they took the polygraph tests or unless new
evidence cleared them. There was no showing that GHR
has since changed its attitude in this regard.
Following their suspensions, Vicknair and Hodges
were active as union spokesmen on environmental issues.
On 5 June, Vicknair testified before the Louisiana Envi-
ronmental Protection Agency at Hahnville , Louisiana, as
the Union's representative and as chairman of the
Union's Health and Safety Committee at GHR . The pur-
pose of this hearing was the investigation of pollution at
the plant. Present at the hearing for GHR , were attor-
GHR ENERGY CORP
neys Michael Crow and Sam LeBlanc, President Jack
Stanley and Jerry Deutsch.
On 12 September, Vicknair testified on behalf of the
Union before a United States Senate committee, in Wash-
ington , D.C. GHR was unrepresented at this hearing. In
his prepared testimony, Vicknair asserted that GHR had
dumped pollutants "onto some Federally owned proper-
ty known as the Bonnet Carre Spillway, which leads to
Lake Ponchartrain." He also asserted that the "immedi-
ate area" impacted by the pollutants was important for
commercial crabbing and shrimp fishing. He complained
about the "strong rotten egg odor" emanating from
sludge taken from the bottom of GHR's settlement pond,
and the high concentration of arsenic, chromium, and
lead which it contained. Vicknair went on to assert that
GHR had dumped "spent catalyst" into the Kenner
Land Fill, without testing it for hazardous material, and
that a Louisiana state agency had found high levels of
chromium, arsenic and lead in the land fill. Vicknair told
the committee that GHR had disciplined an employee
for telling the State that GHR had directed him to dump
"20,000 gallons of caustic" into a swamp and that a
driver had died after unloading a quantity of the same
substance at a hazardous waste dump. Vicknair ended by
accusing GHR of being a "major polluter in South Lou-
isiana" "which we believe to be the worst."
On 13 September, The Times-Picayune published an
article, on its front page, reporting its version of Vick-
nair's testimony to the Senate committee . In addition to
the remarks included in his prepared testimony, the
newspaper asserted that he told the Senate committee
that GHR continued to dump toxic waste because the
fines were less costly than remedial action. In a second
article in its 16 September edition, The Times-Picayune
again summarized its earlier version of Vicknair's remark
to a Senate committee.
On or about 23 September, Vicknair received a letter
from the law firm of Adams and Reese, signed by Attor-
ney Sam A. LeBlanc. In its first paragraph, the letter
called attention to Vicknair's statements before the
Senate committee, to state officers and the media, con-
cerning GHR's disposal of toxic waste into the Bonnet
Carre Spillway. The letter complained that Vicknair's re-
marks were "false and defamatory" and warned that
GHR would institute a $6 million civil suit against him.
Following his suspension, Hodges attended public
hearing involving GHR. In June, as a union observer,
Hodges attended an Environmental Control Commission
hearing at which GHR was seeking a 90-day extension
on a waste discharge permit, Vicknair was also present
as a union observer. Attorney Sam LeBlanc represented
GHR. In the course of the proceedings LeBlanc and
Hodges exchanged nods.
In July, Hodges and Vicknair attended a rezoning
hearing involving GHR as the union's observers. Present
for GHR were Deutsch, Stanley, and attorney Michael
Crow, who also represented GHR. Attorney LeBlanc
did not appear on GHR's behalf.
In September, Hodges attended another Environmen-
tal Control Commission hearing and a second zoning
hearing. In both instances , Hodges was a union observer,
Jack Stanley, attorney Michael Crow, and several em-
1035
ployees were present for GHR at the rezoning hearing.
Sam LeBlanc represented GHR at the Environmental
Control Commission hearing.
2 Analysis and conclusions
The General Counsel urged that GHR indefinitely sus-
pend Vicknair and Hodges because of their activities on
the Union's behalf. GHR argued that it suspended Vick-
nair and Hodges indefinitely because they engaged in
gross misconduct. In my opinion, the General Counsel
has failed to sustain her burden of showing the alleged
unlawful motive by a preponderance of the evidence re-
garding the suspensions. Wright Line, 251 NLRB 1083,
1088 fn. 11 (1980), enfd. on other grounds 662 F.2d 989
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
Beyond question, GHR's management was displeased
by Vicknair's and Hodges' complaints regarding health
and safety matters. In September and November 1979,
Reggie Brown issued a warning to Vicknair suggesting
that Superintendent Glen Ireland and other supervisors
were looking for an excuse to punish him. In December
1979, Superintendent Weemer conceded to Hodges that
Ireland considered Vicknair and Hodges to be trouble-
makers because of their complaints about a hazardous
furnace. In April 1980, Foreman Oliver Vicknair re-
vealed that GHR had changed John Vicknair's shift
from day to night, in an effort to "settle him down."
Under Wright Line, supra, 251 NLRB at 1089, once
employer opposition to union activity has been shown to
be a motivating factor in a decision to discharge an em-
ployee, an unfair labor practice is established unless the
employer can show, as an affirmative defense, that the
employer would have taken the same action even in the
absence of protected activity.
Applying the Wright Line test here, I find that Person-
nel Manager Deutsch based his decision to suspend Vick-
nair and Hodges indefinitely upon Fortenberry's state-
ments, written and oral, and GHR's security investiga-
tion showing that Vicknair and Hodges had harassed
Fortenberry on the morning of 24 May 1980. Also, con-
trary to the General Counsel's assertion, I find that For-
tenberry unequivocally identified Vicknair and Hodges
to GHR as his assailants.
Although Deutsch was part of GHR's management,
there was no showing that he shared Superintendent
Glen Ireland's reported hostility toward Vicknair and
Hodges. Nor was there any showing that Glen Ireland
or any other line supervisor who had been involved with
Vicknair's and Hodges' safety complaints had participat-
ed in the decision to suspend them.
Granted that GHR did not pursue Fortenberry's alle-
gations in further discussion with Vicknair or Hodges
after their suspension on 30 May. However, both em-
ployees rejected Deutsch's suggestion that they submit to
polygraph tests regarding the Fortenberry incident. Fur-
ther, although Fortenberry and Hodges, on 30 May,
denied having engaged in any misconduct against For-
tenberry, they did not offer to prove their innocence.
Vicknair suggested that a subcontractor's employee had
already damaged the door prior to Fortenberry's attempt
to break out of the utility building on the morning of 24
1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
May. Vicknair also attempted to blame the evidence of
broken glass near the utility building on the carelessness
of other operators . However , the record is bare of any
offer by Vicknair or Hodges to provide rebuttal wit-
nesses to establish their innocence . Nor did they offer a
detailed account or statement showing their activities
during the early hours of 24 May. Neither Vicknair nor
Hodges presented any evidence casting doubt on the es-
sential elements of Fortenberry 's allegations.
In sum, the General Counsel has not shown that GHR
suspended Vicknair and Hodges because of their union
activities rather than for cause . Accordingly , I conclude
that GHR did not violate Section 8(a)(3) and (1) of the
Act by suspending employees Vicknair and Hodges in-
definitely.
Nor am I persuaded that the General Counsel has
shown that but for their public appearances on the
Union's behalf after 30 May, GHR would have offered
reinstatement to Vicknair and Hodges . The record shows
that GHR was hostile to employee criticism of its poli-
cies, when such criticism appeared in newspapers and at
public hearings . LeBlanc's warning letter to Vicknair on
GHR's behalf reflected such hostility . However, there
was no showing that this hostility motivated GHR to
withhold reinstatement . Nothing in LeBlanc 's letter sug-
gested that Vicknair 's outspoken criticism caused GHR
to withhold reinstatement from Vicknair . Nor was there
any other evidence that GHR was withholding reinstate-
ment because of Vicknair's and Hodges' criticism. On the
contrary, in February 1981, Deutsch told the Union, in
substance, that if a polygraph test or other new informa-
tion vindicated them , GHR would reinstate Vicknair and
Hodges. I find , therefore, that GHR 's failure to reinstate
Vicknair and Hodges did not violate Section 8 (a)(3) and
(1) of the Act.
The General Counsel also contended that GHR violat-
ed Section 8(a)(1) of the Act by threatening to bring a
lawsuit against Vicknair because he engaged in activity
protected by Section 7 of the Act. GHR urged rejection
of this contention on the ground that Vicknair's utter-
ances were false and malicious . GHR also argued that
LeBlanc's letter was not attributable to GHR because the
record did not show LeBlanc was GHR 's agent when he
issued it . For the reasons stated below, I find that LeB-
lanc's .letter did not violate the Act.
Turning first to the suggestion that LeBlanc 's letter
was not attributable to GHR , I find ample evidence to
show that he acted as if he were GHR's agent . Personnel
Manager Deutsch admitted that LeBlanc worked for the
law firm representing GHR in September, I also note,
that when Vicknair was present, LeBlanc acted as
GHR's representative at the Environmental Protection
Agency hearing on 5 June. LeBlanc acted as GHR's rep-
resentative again , in Vicknair's and Hodges' presence, at
an Environmental Control Commission proceeding
during the same month . Finally, in September, LeBlanc
acted as GHR 's representative at a second Environmen-
tal Control Commission hearing attended by Vicknair
and Hodges.
I fmd from Deutsch's admission , and LeBlanc's ap-
pearances at public proceedings as GHR's representative
that Vicknair and Hodges were likely to identify LeB-
lanc as a spokesman for GHR . I find, therefore, that
LeBlanc's letter threatening Vicknair with a lawsuit was
attributable to GHR . Batavia Nursing Inn, 275 NLRB
886 125 fn. 2 (1985).
The next question presented is whether GHR's letter
to Vicknair infringed upon the kind of concerted activity
which Sections 7 and 8 (a)(1) of the Act protect from em-
ployer interference . Specifically, the letter referred, to
Vicknair's statements regarding GHR's disposal of toxic
waste into the Bonnet Carre Spillway which leads into
Lake Ponchartrain . These statements appeared in his re-
marks to a U.S. Senate committee , and were published in
two newspaper articles. The remarks to which GHR ob-
jected, called attention to the impact of GHR's alleged
misconduct upon shrimp fishing , crabbing, and other rec-
reational pursuits in or near Lake Ponchartrain. There
was no reference to the effect such hazardous wastes
would have upon GHR's employees . Instead, Vicknair
called attention only to the effects of the alleged hazard-
ous waste-dumping upon the general community.
The Court, in Eastex, Inc. v. NLRB, 437 U.S. 556, 566
(1978), recognized that the language of Section 7 of the
Act extended protection to employees seeking "to im-
prove working conditions through resort to administra-
tive and judicial forums [footnote omitted] , and that em-
ployees' appeals to legislators to protect their interests as
employees are within the scope of this clause."
The remarks to which GHR took offense in its letter
to Vicknair were not aimed at persuading the Senate to
improve the working conditions of GHR's employees.
Instead, Vicknair and the Union called attention to the
dangers they perceived to water flowing into Lake Pon-
chartrain . Thus, Vicknair and the Union were not ap-
pealing to Congress to protect the interests of union
members as employees.
I fmd that under the teachings of Eastex, Section 7 of
the Act did not protect Vicknair 's remarks to the Senate
committee . Accordingly , I find that GHR's letter threat-
ening to bring a court action against him because of
these remarks did not violate Section 8(a)(1) of the Act.
The General Counsel contended that GHR violated
Section 8(a)(5) and (1) of the Act by failing to provide
the Union with information regarding GHR's investiga-
tion of Vicknair's and Hodges' alleged misconduct, and
by not advising the Union as to whether Vicknair and
Hodges had been terminated and if so when and for
what reasons, all of which the Union requested in its
letter of 6 November. GHR urged dismissal of this alle-
gation on the ground that the record did not show a fail-
ure to comply with the Union 's request . I find merit in
the General Counsel 's contention.
In NLRB v. Acme Industrial Co., 385 U.S. 432, 435
(1967), the Court recognized that an employer 's duty to
bargain in good faith includes the obligation to furnish
relevant information necessary to enable the collective-
bargaining representative, either before or after a con-
tract is concluded, to discharge its function intelligently
and effectively. Here, GHR did not question the rel-
evance of or the need for the information sought in the
Union's second request dated 6 November . Further, the
Union has satisfied me that it needed the requested infor-
GHR ENERGY CORP.
matron to determine if Vicknair's and Hodges' seniority
was in danger under the terms of the expired contract,
which remained in effect, and to protect it, if necessary.
I also find that in this second request, the Union was
attempting to update the information which it had re-
ceived from GHR on 16 June. Thus, I find no merit in
GHR's position that it had provided the Union with all
the information it had, by its response to the Union's first
request and Deutsch's remark to the Union.
Deutsch 's admissions , and Roan's credited testimony,
showed that GHR did not provide the Union with sup-
plemental information requested in the Union's second
letter. GHR did not respond to the Union's request for a
report on the progress of its investigation regarding
Vicknair and Hodges. Nor did GHR reply to the
Union's request for any additional evidence. Finally,
GHR did not inform the Union "as to whether . . .
Vicknair and Hodges [had] in fact been terminated."
Indeed, I find that GHR provided no response to the
Union's second request for information. I further find,
therefore, that by not furnishing the necessary and rele-
vant information which the Union requested in its letter
of 6 November, GHR violated Section 8(a)(5) and (1) of
the Act. L. M. Settles Construction Co., 259 NLRB 379,
383 (1981).
H. Gail Simmons' Discharge, GHR's Alleged Refusal
to Meet with Simmons, and GHR's Alleged Refusal to
Furnish Information to the Union Regarding
Simmons' Discharge
1. Facts2 i
GHR employed Gail Simmons from April 1975 until it
discharged him on 17 July From April 1975 until Janu-
ary, Simmons was an instrument technician In January,
GHR honored his bid for a job in its warehouse, where
Simmons remained until his Discharge.
On three occasion, GHR supervisors praised Simmons'
work. In November or December 1979, Operations Su-
perintendent Glen Ireland complimented Simmons for
his assistance in resolving a problem which other instru-
ment technicians could not solve. On another occasion,
Refinery Manager Frank Alvin expressed appreciation
for Simmons' solution of a problem arising from a valve
critical to production. In January or February, Personnel
Manager Jerry Deutsch spoke favorably of Simmons to
another employer who was considering Simmons for em-
ployment.
Prior to his discharge, Simmons had not suffered disci-
plinary action at GHR's hands since 9 November 1978.
On that occasion, he received from Deutsch a written
warning for engaging in union activity on company time.
The warning notice also gave an explanation of the 3-
day suspension, without pay, which GHR had imposed
on him for the same conduct. Further, the notice remind-
ed Simmons that GHR had "on at least three different
occasions" counseled with him about engaging in unau-
thorized union activity on company time.
21 Except as noted, there were no issues of fact raised by the testimony
of regarding Simmons' discharge or the other allegations I shall cover in
section H of this decision
1037
On 13 November 1978, Simmons filed a grievance al-
leging that his 3-day suspension violated the collective-
bargaining agreement . In May 1979, GHR settled the
grievance and paid to Simmons the 3 days' pay he had
lost due to the suspension.
During his employment, Simmons was a prominent
union activist. In June 1976, he was elected Group
Chairman of Local 4-447. This office was the equivalent
of president of the portion of the Union made up of
GHR employees. His correspondence shows that he also
was designated as vice president of the Local. Simmons
remained group chairman until January 1981. His duties
included enforcement of the Union's contract with GHR,
the filing of grievances for employees, and' contract ne-
gotiations. On occasion, he represented employees at dis-
ciplinary interviews.
In September 1978, GHR's personnel manager,
Deutsch, called Simmons to his office after employee
Gary Sullivan had requested Simmons to represent him
in a disciplinary interview. Deutsch warned Simmons
that he would need union representation. In subsequent
unfair labor practice proceedings, an administrative law
judge, the Board, and the United States Court of Ap-
peals for the Fifth Circuit agreed that Deutsch's warning
had violated Section 8(a)(1) of the Act. Good Hope Re-
fineries, 245 NLRB 380, 384 (1979), enfd. 620 F.2d 557
(5th Cir. 1980), cert. denied 449 U S. 1012 (1980)
Simmons participated in the negotiations which result-
ed in the contract which GHR and the Union executed
on 1 March 1978. He also chaired the negotiating com-
mittee during the 1980 negotiations with GHR and at-
tended all the bargaining sessions.
Simmons recommended that GHR's employees go on
strike, when the 1978 contract expired. He also partici-
pated in the strike which began on 1 March and ended
on 14 April.
During his first 2 years as group chairman, Simmons
filed 75 to 100 grievances per year. In 1979, he estab-
lished a steward system, assigning one steward to each
shift. Under this system, the Union processed a larger
number of employee grievances
Simmons also showed interest in employee safety
During his tenure as group chairman, Simmons filed four
or five complaints against GHR with OSHA (Occupa-
tional Safety and Health Administration). In February
1979, he joined with John L. Vicknair, the chairman of
the Union's Health and Safety Committee, to file a com-
plaint against GHR.
In 1980, between the end of the strike, on 14 April,
and his discharge on 17 July, Simmons attended a com-
munity meeting at which a GHR rezoning request was
under discussion.22 GHR had called for the meeting to
22 On direct erxammation, Simmons testified initially that he attended
the community meeting in "January or February of 1980 " However,
after further reflection, he testified that he could not remember whether
the community meeting had occurred before or after the strike Finally,
under cross-examination on the following day, when asked when the
community meeting occurred, Simmons, who impressed me as a candid
witness, testified that to the best of his recollection, it occurred "some-
where between April 14 and July 17, 1980 " As Simmons seemed to be
giving his best recollection, after he had an opportunity to reflect on the
time of this meeting, I have credited this later testimony
1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
explain its plan to build a tank farm . Simmons wished to
express his views . However, before doing so, he asked a
GHR attorney , who was present, for immunity from dis-
ciplinary action . The attorney refused to grant such im-
munity and Simmons withheld his intended remarks.
In early 1979, Simmons noted that employees of TCP,
a nonunion employer , were performing maintenance
work at GHR's refinery . In March 1979 , Simmons, on
behalf of the Union , addressed two letters to GHR's per-
sonnel manager, Jerry Deutsch, seeking information re-
garding TCP, its employees and their work at the refin-
ery. Deutsch responded to the first request by telling
Simmons that the requested information was "none of
the Union 's business." The Union received no answer to
its second request.
In January 1980, Simmons again authored and signed a
letter from the Union asking GHR to provide it with in-
formation regarding TCP, its management, its relation-
ship with GHR, and its employees . On 6 February,
Deutsch, on behalf of GHR, addressed a letter to Sim-
mons containing information regarding TCP employees.
Deutsch stated that the letter was in response to Sim-
mons' request for such information during contract nego-
tiations.
During negotiations in 1980 , both at the bargaining
table and in remarks elsewhere, Simmons and union ad-
herents were claiming that TCP should be included in
the bargaining unit . In early 1979 , Simmons obtained a
signed union authorization card from a TCP employee.
Sometime after the 1980 strike ended , Simmons sought
to make union members of the approximately 35 employ-
ees whom GHR had hired into the bargaining unit
during the strike . Simmons encouraged the Union's stew-
ards to solicit signed union authorization cards from
these new employees . By 15 July, the Union had ob-
tained cards from them . On that day, Simmons presented
the 10 cards to Deutsch. Deutsch asked how many cards
there were , Simmons answered "ten" but that the Union
was in the process of signing up the rest of them. I find
from Simmons' testimony that during his employment by
GHR, he periodically gave signed union cards to
Deutsch and that prior to 15 July, the last time he had
done so was in January or February.23
In contrast with Simmons , Deutsch seemed reluctant
to testify on examination by counsel for the General
Counsel regarding Simmons . Although he remembered
issuing suspension and warning notifications to Simmons
on 9 November 1978 , he had no recollection of Sim-
mons' grievance and its settlement. He also claimed no
recollection that his warning of disciplinary action, when
Simmons attempted to represent employee Sullivan, re-
sulted in an unfair labor practice charge , a complaint and
a finding that the warning had violated the Act. These
denials of recollection, which contrasted sharply with his
apparent ability to recall information detrimental to Sim-
mons, infirmities persuaded me that Deutsch was not a
reliable witness regarding Simmons' discharge.
At approximately 9:30 a.m. on 16 July , Simmons pro-
ceeded to Deutsch's office on a supervisor's instructions.
Upon his arrival, Deutsch presented to Simmons a copy
of a letter Deutsch had sent to the Union's international
representative , James Bergeron . Among other matters,
Deutsch's letter announced GHR's plan to contract out
its maintenance work. The letter stated that GHR would
implement its intention on 28 July and offered to meet
and negotiate with the Union about the impact of the
contracting out on the unit employees. Simmons accept-
ed the letter and returned to work.
That same day, after receiving GHR's letter, Simmons
telephoned GHR's president, Jack Stanley , to complain
that the letter had misrepresented the Union's position on
GHR's maintenance problem. Toward the close of the
conversation , Stanley warned Simmons that he would be
hearing from Deutsch "very shortly." Simmons, perceiv-
ing that Stanley was referring to the stalled negotiations,
expressed doubt that Deutsch could help. At this, Stan-
ley retorted:
Well, we've got a policy here about conducting
union business on company time. You'll be hearing
from Deutsch shortly.
On the afternoon of 16 July, Simmons represented em-
ployee Lynn Hymel at a counseling session with
Deutsch. Neither Deutsch nor Simmons mentioned any-
thing about Stanley's earlier remarks.
However, later, on the same day , Deutsch told Sim-
mons that he wanted to see Simmons on the morning of
17 July. After some discussions , the two agreed to meet
at 8 a.m. on 17 July.
Simmons and International Representative Roan ap-
peared in Deutsch's office on the morning of 17 July.
Upon their arrival , Deutsch announced that the meeting
was for a disciplinary purpose . Deutsch rejected Sim-
mons' request to have Roan as his representative, on the
ground that Roan was not a GHR employee.24
Deutsch stated that he had sent for a steward in the
plant to represent Simmons . Union Steward Harvey
Kimball arrived and the disciplinary session began imme-
diately.
Deutsch asserted that GHR had investigated and
found that Simmons had been circulating through the
plant, asking TCP employees to join the Union. Simmons
denied the allegation . When Kimball asked who had ac-
cused Simmons , Deutsch refused to provide that infor-
mation. Deutsch immediately terminated Simmons.
'4 The 1978 contract, in pertinent part, provided as follows:
Article XXXVI
Disciplinary Procedure
Section 2. An employee may request union representation at any
23 Deutsch denied that Simmons gave any cards to him on 15 July or stage of the disciplinary procedure directed towards the said employ-
at any other time . However, I credited Simmons' contrary testimony . As ee, including the investigatory stage, and such representation shall
Simmons appeared to be more forthright than Deutsch , I credited Sim- not be denied by the Company . The Union agrees that it will furnish
mons' testimony that he gave 10 cards to Deutsch. such representation to the employees.
GHR ENERGY CORP
Thereafter, Simmons received no offer of reinstatement
from GHR.
On 17 July, International Representative Roan sent a
letter to GHR's Deutsch on the Union's behalf, request-
ing the following information regarding Simmons' dis-
charge:
(1) Any and all written statements, reports or
other documents which the Company has in its pos-
session in connection with the alleged solicitation of
TCP employees to join the Union.
(2) If the Company has received any oral state-
ment or reports in connection with the alleged so-
licitation of TCP employees herein mentioned
above, then the Union is desirous of obtaining the
names of all the persons making such statements
and/or reports and the exact content of those state-
ments and/or reports.
.(3) Any and all information as to which TCP em-
ployees Mr. Simmons allegedly solicited including
but not limited to their names, the dates of solicita-
tion and the places of solicitation; and
(4) Any other evidence, information or docu-
ments which the Company has in its possession in
connection with this matter.
In the letter, Roan explained the Union's reasons for
seeking the requested information. He stated that the
Union needed the information to represent Simmons in-
telligently and effectively and to evaluate properly "the
alleged incidents resulting in his termination." At the
hearing, Roan reiterated these reasons for the Union's re-
quest.
Deutsch responded by letter on 6 August. He reported
that GHR was reviewing Roan's request to determine
"what information can be supplied to the Union."
Roan renewed the Union's request by a second letter
to Deutsch dated 18 August. GHR gave no further re-
sponse to the Union's request for information regarding
Simmons' discharge.
Despite his discharge by GHR, Simmons retained his
union positions as group chairman and vice president of
Local 4-447 until on or about 31 January 1981 However,
immediately after Simmons' discharge, GHR discontin-
ued its practice of sending correspondence to him re-
garding grievances. By letter of 6 August, to Deutsch,
Simmons stated that he was group chairman of GHR's
employees and thus entitled to receive correspondence
regarding those employees. He concluded by requesting
GHR's reason for "by-passing" him "on matters that
affect the members of my Union and Group." Thereaf-
ter, GHR resumed its practice of sending correspond-
ence pertaining to the GHR employee group, to Sim-
mons.
On or about 31 October, Simmons and a suspended
employee, Steven Brackin, arrived together at the en-
trance of GHR' s west plant . Brackin had asked Simmons
to accompany him to Deutsch's office and represent him
at a grievance meeting with Deutsch regarding Brackin's
reinstatement. A security guard stationed at the plant's
entrance called Deutsch's office and handed the tele-
phone to Brackin. In the conversation which ensued,
Deutsch rejected Brackin's request to have Simmons as
1039
his representative, on the ground that Simmons was not
a GHR employee. Deutsch also said he had summoned a
union steward, employee Mark Hymel, to represent
Brackin. Brackin accepted Hymel as his representative
and attended the disciplinary interview, leaving Simmons
at the gate.
2. Analysis and conclusions
The General Counsel contended that the reason which
Deutsch gave at the time he discharged Simmons was
pretextual. Instead, the General Counsel argued that
GHR discharged Simmons because he was a leading
union advocate, and thereby violated Section 8(a)(3) and
(1) of the Act. GHR sought dismissal of this allegation
on the ground that it discharged Simmons for miscon-
duct. I find merit in the General Counsel's contention for
the following reasons.
As I have previously stated, where the evidence shows
that an employer's opposition to union activity was a
motivating factor in its decision to terminate an employ-
ee, Board policy requires a finding of unlawful motive,
unless the employer can show, as an affirmative defense,
that it would have discharged the employee regardless of
his or her protected union activity. Wright Line, 251
NLRB 1083, 1089 (1980), enfd. on other grounds 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
However, where the record shows that the protected
union activity was a motivating factor in the employer's
decision, and that the proffered justification is pretextual,
"that determination constitutes a finding that the reasons
advanced by the employer did not exist or were not in
fact relied upon." Limestone Apparel Corp., 255 NLRB
722 (1981). Such a finding, necessarily removes any
ground for determining whether the employer would
have discharged the alleged discriminatee even in the ab-
sence of protected union activity. Wright Line, 251
NLRB at 1084.
As group chairman, Simmons was the leading union
activist at GHR. He was actively involved in the filing
of grievances, and the establishment of the Union's stew-
ard system. In 1979 and 1980, Simmons pressed GHR to
provide the Union with information regarding TCP's
employees and their work He also urged GHR to in-
clude TCP's employees in that unit . Early in 1980, he
urged the employees to strike GHR when the 1978 con-
tract expired.
After the 1980 strike, Simmons stimulated the Union's
effort to recruit the 35 employees whom GHR had hired
during the strike. He showed enthusiasm for this recruit-
ing effort on 15 July, when he handed to Deutsch 10
cards bearing the signatures of employees hired during
the strike.
On three occasions, GHR's reactions to Simmons'
union activity revealed hostility. In September 1978,
Deutsch violated Section 8(a)(1) of the Act by threaten-
ing Simmons with discipline because he attempted to
represent an employee in a disciplinary interview.
In November 1978, Deutsch again attempted to punish
Simmons for engaging in union activity during working
time, by suspending him for 3 days without pay.
1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Finally, 1 day after Simmons had given 10 signed
union authorization cards to Deutsch, President Stanley
revealed that GHR was again irked at Simmons' union
activity. Stanley warned that Deutsch would soon be in
touch with Simmons . He also made clear that Deutsch
would address himself to Simmons' union activity.
The record showed that President Stanley participated
with Deutsch in the formation of GHR 's loyalty policy
in 1980 and that Stanley involved himself generally in
GHR's labor relations , including the continuing contract
negotiations with the Union after the strike in 1980.
Thus, Stanley was likely to have frequent enough con-
tact with his personnel manager , Deutsch, to keep
abreast of grievances , and union activity among GHR's
employees . From these circumstances and the content
and timing of Stanley 's remarks to Simmons , I find that
by his remarks about "union activity," Stanley was refer-
ring to the 10 signed authorization cards Simmons had
given to Deutsch on 15 July.
There can be little doubt that the strike , which had
ended 3 months earlier, had stirred up antiunion senti-
ment among GHR's management , including President
Stanley . GHR quickly manifested its union animus after
the strike by its resort to the unlawful conduct I have
found earlier in this decision . Thus, GHR violated Sec-
tion 8(a)(3) and (1) of the Act by withholding sick leave
payments from bargaining unit employees because it be-
lieved they were actively supporting the strike. GHR
again revealed its hostility toward bargaining unit em-
ployees by unlawfully enrolling strike replacements in its
own health insurance program which , unlike the Union's
insurance program, did not require the employees to
contribute a portion of the premium . GHR further mani-
fested its sentiment when it unlawfully favored strike re-
placements by paying them at the higher , operator 1
rate , while they were working in the operator 2 classifi-
cation, and withholding such treatment from the strikers
working as operators 2.
GHR also unlawfully sought to discourage employees
from voicing support for the Union and its economic ob-
jectives. GHR imposed a loyalty policy on its employ-
ees. It also punished employee Rene Elfer for writing
letters critical of GHR, in support of the Union, to a
local newspaper.
In sum, the General Counsel has shown that GHR se-
lected Simmons , a leading union activist , for discharge 2
days after he had presented 10 signed union authoriza-
tion cards to GHR 's management and had stated his
intent to obtain more support for the Union from the
strike replacements In light of GHR's manifestations of
union animus in April and May, I find that Simmons' ac-
tivity was a motivating factor in GHR 's decision to dis-
charge him on 17 July.
In support of GHR 's defense , Deutsch testified that he
discharged Simmons, in the neighborhood of 9 or 9:30
a.m. on 17 July, for violating GHR's rules of conduct,
which had been in effect since August 1978 , by soliciting
during work time. Specifically, Deutsch referred to a
prohibition against solicitation in GHR's refinery "during
an employee's working time or during the working time
of the employee solicited ." According to Deutsch, on 16
July, he made the decision to discharge Simmons after
reading the written statements of TCP employees James
A. Zievert, James H. Kinchen, and Louis Edward Las-
sabe Jr., none of which were dated.
According to Zievert's and Kinchen 's sworn state-
ments, at approximately 10 a.m., on 25 June , Gail Sim-
mons approached TCP employees Kinchen and Zievert
at GHR's refinery warehouse , at its east plant , and asked
if they would join the Union. According to Lassabe's
sworn statement, he met Simmons in the warehouse, at
approximately 10:15 a .m. on 15 July and early in the en-
counter asked Simmons : "[I]f the Union can do so much
for you, why didn't they get Charlie Goodnight (dis-
charged electrician) re-instated [sic]." Lassabe in his
sworn statement, also reported that Simmons discussed
an impending union meeting , the Union's plan to seek re-
instatement for fired or laid off TCP employees, and the
Union's role in providing job security.
Zievert's credited testimony and infirmities in
Deutsch's testimony cast serious doubt upon Deutsch's
assertions that he relied on Zievert's, Kinchen's, and Las-
sabe's statements when he decided to discharge Sim-
mons. On cross-examination , Deutsch did not fix the date
when he read the statements . He said he could not recall
it. Instead , he speculated that he read them "within a day
or two before" 17 July, the date of his confrontation
with Simmons.
Considering that Deutsch had discharged a leading
member of the bargaining unit , who had worked at
GHR's refinery for over 5 years, one would expect
Deutsch to have a firmer recollection of this unusual
event than his testimony portrayed . His uncertain an-
swers, and apparent reluctance to be more specific, to-
gether with my earlier appraisal of his testimony regard-
ing Simmons , raised my suspicion that he was not a
candid witness about when he first saw the three crucial
statements.
Review of employee Zievert's statement and his testi-
mony persuaded me that Deutsch's testimony regarding
his motive for discharging Simmons was fiction. Thus,
Zievert's written statement , which according to Deutsch
was in his hands on 16 July, contains the following:
"Myself and James Kinchen had not discussed this inci-
dent with anyone until July 17, 1980, when we revealed
this information to [Superintendent] Clem Zievert of
TCP Maintenance."
I find from Zievert's testimony that he gave his writ-
ten statement to GHR's security on the afternoon of 17
July, hours after Deutsch had discharged Simmons. I
also find from Zievert's testimony that it was not until 17
July, that a member of management , Zievert's father, Su-
perintendent Clem Zievert, heard Zievert's report of
Simmons' solicitation.
Nor did Lassabe's testimony fix a date for the written
statement he gave to GHR security officer Lester Wal-
lace. Lassabe testified that he told Wallace about the as-
serted encounter with Simmons 1 or 2 days after it had
occurred. However, Lassabe 's testimony did not provide
any date for this encounter. Lassabe's testimony shows
only that it occurred in July. His written statement fixed
15 July as the date of the incident . However, the entire
statement was hearsay, and I did not receive it for the
GHR ENERGY CORP
truth of any of the assertions it contained. Therefore,
Lassabe's statement had no probative value on this issue
of fact.
I have also credited Simmons' denial that he had ever
solicited TCP employees to sign authorization cards or
to join the Union. Zievert and Lassabe, who were TCP
employees, testified to the contrary. However, Simmons
seemed to be giving his best recollection fully, and in a
straightforward manner, while Zievert and Lassabe did
not seem as conscientious about searching their memories
on this point of fact.
TCP employee Zievert's effort to fix the date of Sim-
mons' attempt to solicit him and fellow TCP employee
James Kinchen suggested that Zievert was grasping. Zie-
vert testified that TCP employed him as a boilermaker
until approximately March 1980, when he changed to an-
other classification. He also testified that Simmons' at-
tempt to solicit him and Kinchen occurred while Zievert
was yet a boilermaker, shortly after the strike. A little
later, Zievert fixed the time of the conversation at 4
months before he ceased being a boilermaker, and then
testified that the conversation occurred on 15 July 1979.
Zievert also testified that he had the conversation with
Simmons before the strike. Further along, Zievert, after
reviewing his written statement, testified that the conver-
sation took place on 15 July. However, in his statement,
Zievert asserted that the conversation with Simmons oc-
curred "on the morning of June the 25th or there
abouts."
When counsel for the General Counsel pointed out
that Zievert's statement did not say anything about 1980,
Zievert conceded that fact, adding- "I'm just assuming
cause I don't remember." Zievert's apparent willingness
to provide testimony in support of GHR's defense about
a conversation which he cannot place in time, cast seri-
ous doubt on his credibility regarding the conversation's
content.
Lassabe's testimony also contained flaws suggesting
that his account of a July 1980 conversation with Sim-
mons was fiction. According to Lassabe's testimony on
direct examination, after picking up some parts and leAv-
ing Simmons and the warehouse, Lassabe, encountered
Foreman Polgar, a TCP supervisor, who asked Lassabe
"what happened." Lassabe testified that he told Polgar
about his encounter with Simmons. On cross-examina-
tion, Lassabe changed his story. He testified that Fore-
man Polgar asked him "why I was over there talking to
Mr. Simmons." However, Lassabe testified that he did
not know whether Polgar had actually seen him talking
to Simmons, as the asserted conversation had occurred
inside the warehouse Lassabe attempted to explain Pol-
gar's knowledge by speculating that Polgar observed the
conversation through a window.
Lassabe also changed the location of his encounter
with Polgar. First, when asked on cross-examination to
describe his meeting with Polgar, Lassabe fixed the situs
at the west plant. In a second version, Lassabe placed
Polgar in a truck moving away from the west plant and
himself in another truck moving toward the west plant.
Lassabe also seemed reluctant to undergo cross-examina-
tion on his conversation with Polgar. He wanted to
recite the incident rather than submit to counsel's search-
1041
ing questions In sum, Lassabe's shifting and inconsistent
testimony and his reluctance to undergo cross-examina-
tion persuaded me that Lassabe was not a candid wit-
ness.
Moreover, GHR did not offer TCP Foreman Polgar
as a witness and did not report that it made any effort to
obtain his testimony. Nor did GHR provide any other
evidence to support Lassabe's testimony. This circum-
stance convinced me that Lassabe's testimony in this
regard was his own invention, created to assist GHR's
defense and mask an unlawful motive.
After reviewing the entire record before me, I am con-
vinced that GHR's motive for discharging Simmons was
his leadership in the Union's effort to recruit the strike
replacements. On 15 July, Simmons handed 10 signed au-
thorization cards to Deutsch and announced that the
Union was trying to sign up the remainder of the strike
replacements whom GHR was trying to woo with no-
cost health insurance , and enhanced wages. The next
day, President Jack Stanley, pointedly reminded Sim-
mons about GHR's prohibition against "conducting
union business on company time" and warned him that
Deutsch would be talking to him. Thus did Stanley
presage Simmons' punishment. The following morning,
Deutsch, using the pretextual reason contained in Stan-
ley's warning, hastily discharged Simmons to punish him
for his leading role in the recruitment of the strike re-
placements for the Union.
The evidence also strongly suggested that only after
Simmons' discharge had occurred did GHR set about
camouflaging its unlawful purpose by obtaining the state-
ments of employees Zievert, Kinchen, and Lassabe. This
unsuccessful ploy lent further support to the General
Counsel's contention that GHR's defense was pretextual.
In sum , I find that GHR violated Section 8(a)(3) and (1)
of the Act by discharging employee Gail Simmons.
The record shows that on the morning of 17 July,
Simmons arrived at Deutsch's office, where he soon
learned that Deutsch was about to conduct an investiga-
tory interview which was likely to result in disciplinary
action against Simmons . The General Counsel alleged
that GHR on that occasion violated Section 8(a)(1) of
the Act by denying Simmons' request for representation
by a union representative of his choice. I agree
The Supreme Court and the Board have made clear
that the right to request a specific union representative in
this case rested with Simmons In NLRB v. J. Weingar-
ten, Inc., 420 U.S 251 (1975), the Court approved the
Board's view that Section 7 of the Act gives an employ-
ee the right to demand union representation at investiga-
tory interviews which he or she reasonably believes will
result in discipline. Also, under Weingarten, 420 U.S. at
257-258, it is the employee, who is about to undergo the
interview, who must request such representation. Fur-
ther, when the employee makes the request, the employ-
er must either grant it, give the employee the option of
going on with the interview unrepresented or waiving
the interview, or reject the request and end the inter-
view. Absent is any provision allowing an employer to
impose a union representative on an employee.
1042 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Board's decision in Coca-Cola Bottling Co., 227
NLRB 1276 (1977), suggested that the initiative for se-
lecting a union representative lies with the employee. In
that case , the Board held that if the employee requests a
union representative , who is not available , the employer
can reject the request and proceed with the investigatory
interview without providing another representative or
otherwise attempting to satisfy the employee 's initial re-
quest. However , in Coca-Cola, the Board also recognized
that in such circumstances an employee has the right to
request an alternative representation . Coca-Cola, supra at
1276.
Applying the foregoing teachings here , I fmd that
Deutsch impaired Simmons' Section 7 right to specify
the union representative he wanted to assist him at the
interview on the morning of 17 July. Deutsch imposed
Steward Kimball upon Simmons, who was attempting to
exercise his right under the Act to select the Union's
International Representative Roan as his representative.
As Roan was available, the interview could have pro-
ceeded without delay . That some of Kimball 's work time
might have been wasted if Deutsch had granted Sim-
mons' request did not warrant Deutsch 's rejection of that
request . For such waste resulted wholly from Deutsch's
unlawful conduct, not from Simmons' attempt to exercise
a right which the Act protects. I find that by Deutsch's
refusal to permit Gail Simmons to exercise his right to
select a union representative in accordance with the
Weingarten doctrine, GHR violated Section 8(a)(1) of the
Act. Consolidated Freightways Corp., 264 NLRB 541, 542
(1982).
I also find merit in the allegation that GHR's refusal to
deal with Simmons as employee Brackin 's union repre-
sentative at a grievance meeting violated its collective-
bargaining obligation under the Act. M K Laboratories,
Inc., 261 NLRB 152, 154 ( 1982). Accordingly, I find that
by this refusal , GHR violated Section 8(a)(5) and (1) of
the Act. 25
Turning to the Union's request for "the names of indi-
viduals" who had reported to GHR that Simmons had
solicited them, as alleged, I find that GHR failed to pro-
vide the requested information . Under, established princi-
ples, GHR's failure to honor the Union's request was a
violation of its bargaining obligation.
It is well settled that a union is entitled to information
in the employer's possession which is relevant to the
union's task of considering whether the discharge of a
bargaining unit employee warrants the filing of a griev-
ance . NLRB v. Acme Industrial Co., 385 U.S. 432, 437-
438 (1967); Salt River Valley Water Users' Assn., 272
NLRB 296, 300 (1984). Here, I find that the Act re-
quired GHR to honor the Union's request , on 17 July
and 18 August , for the names of individuals who had
told GHR that Simmons had engaged in solicitation for
the Union . This information was relevant to the Union's
25 Deutsch testified that he refused to accept Simmons as Brackin's
representative because he, Deutsch, had summoned a union steward to
act in that capacity, and this procedure was "the way we always did it."
However , there was no showing that the Union had expressly agreed to
this asserted practice , or had expressly waived the employees' rights
under the Board's Weingarten doctrine . I fmd that the Union did not
clearly and unmistakably waive those rights.
investigation of Simmons' discharge . For, armed with
those names, GHR might have obtained information
from those individuals to determine whether to file. a
grievance complaining about Simmons ' discharge. By
failing to provide the requested information , GHR vio-
lated its duty to bargain in good faith and Section 8(a)(5)
and (1 ) of the Act. F. W. Buschman Co., 277 NLRB 189
(1985); Transport of New Jersey, 233 NLRB 694 (1977).
I. The Polygraph Test and GHR's Alleged Refusals to
Furnish Information to the Union Regarding the
Polygraph Test
1. The facts26
At a negotiating session between GHR and the Union,
on 8 April , GHR's representative, attorney John A.
Meagher, first raised the topic of sabotage . Meagher
complained that after the strike began , GHR found evi-
dence of tampering and intentional mistreatment of its fa-
cilities . In support of this complaint , Meagher read from
a list of suspected incidents of sabotage , which included
a diesel oil spill, open valves , knots tied in an air line, the
removal of nickel catalyst and damage to hoses and tele-
phone wires . The union representatives denied responsi-
bility for the alleged sabotage and expressed opposition
to such conduct.
Meagher again raised the topic of sabotage at the next
negotiating session, on 10 April . He reported that on 9
April, GHR had discovered a large nail in a compressor,
which resulted in a shutdown of its catalytic cracking
operation and a loss of production.
GHR did not complain about sabotage again until
August . On 13 August, GHR complained to the Union
about acts of sabotage including the contamination of
drinking water with methanol.
By letter of 29 August , to GHR , the Union made the
first of a series of requests for information on acts of sab-
otage. Thereafter , in its letter of 16 January 1981, to the
Union, GHR responded with reports of six incidents
which it attributed to sabotage . By letter of 22 January
1981, the Union advised GHR that it had begun an in-
vestigation of the alleged incidents of sabotage and re-
quested information as follows:
With regard to each one of the incidents listed in
your letter of January 16, 1981 , the Union demands
that the Company furnish it with all evidence
which it has in its possession . More specifically, we
demand the following information and/or docu-
ments with regard to each and every incident listed
in your letter of January 16, 1981:
1. Any and all written statements, reports and
other documents which the Company has in its
possession;
2. If the Company has received any oral state-
ments or reports in connection with any of these
alleged incidents, then the Union is desirous of
26 Except as noted , the essential facts recited below , regarding the alle-
gations growing out of GHR's polygraph testing of its employees in Feb-
ruary 1981, are not disputed.
GHR ENERGY CORP
obtaining the names of the person(s) making such
statements and/or reports and the exact content
of those statements and/or reports;
3. The names of any individual(s) involved in
any of these alleged incidents, the specific place
where the incident occurred and the details of
the manner in which the incidents took place;
and
4 Any and all other evidence, information or
documents which the Company has in its posses-
sion in connection with these matters.
GHR never responded to this request.
At a negotiating session in February 1981, GHR for
the first time spoke to the Union about giving polygraph
tests as a response to sabotage. GHR's representative, at-
torney lack Meagher, exhibited a severed air hose from a
GHR compressor. Meagher also reported and showed
pictures of damage to a cooling fan and a safety harness.
He asserted that sabotage had caused the damage, and
exhibited the severed hose in response to the Union's re-
quest for evidence of sabotage. Meagher's remarks indi-
cated that to defend itself against further damage, GHR
was considering the use of polygraph testing for employ-
ees who were in the area where the alleged sabotage had
occurred. Meagher asked the Union for its "input."
Meagher also stated in discussion with International Rep-
resentative Bergeron that as far as he was concerned,
unit employees would have union representation during
their polygraph tests.
Bergeron did not agree to the test. Bergeron remarked
that the courts did not accept the results of polygraph
tests as evidence. Bergeron also said that the Union did
not believe in the test, but that the Union would consider
it. Bergeron requested proof that unit employees had
been near the locus of the suspected sabotage and more
proof of sabotage.
The Union and GHR met again on 12 February 1981.
Personnel Manager Deutsch presented information show-
ing the effect of the air hose damage on a production
unit and mentioned suspected sabotage to a pump on the
same unit Deutsch asserted that he had given all the in-
formation he had.
On 12 February, attorney Meagher again voiced
GHR's intention to use polygraphing , a stress test, or
some other method in its effort to combat the alleged
sabotage. The Union persisted in its opposition to the
polygraph test. It would not agree to polygraph tests
unless GHR convinced the Union that sabotage had
caused the damage. When Bergeron asked Meagher if
GHR had any more information regarding the latest sus-
pected sabotage, Meagher answered that he did not.
On the night of 14-15 February, a large Worthington
compressor ceased operating. GHR's inspection found a
soft drink tab top and a cellophane wrapper on the grid
above the compressor's blower chamber. On 17 Febru-
ary, GHR notified Meagher of this incident which it per-
ceived as sabotage. Meagher viewed this report as cause
for alarm.
Meagher contacted Bergeron on 19 February 1981,
and arranged a meeting for 21 February 1981. Meagher
told Bergeron that a compressor had been sabotaged.
1043
Meagher also warned that the sabotage problem could
result in the refinery's destruction He insisted that-
"Whether it takes polygraph, whichever it takes, we've
got to get resolution of this problem."
Between 5 and 8 days prior to the meeting on 21 Feb-
ruary, Meagher and GHR's management began to look
for a polygraph examiner. On 19 and 20 February,
GHR's safety director, Charles Leslie Wallace, retained
polygraph examiner Ernie Hulsey.
At the meeting on 21 February, Meagher and GHR
Security Supervisor Noack produced a soft drink tab and
a cellophane wrapper which GHR claimed it had found
in the Worthington compressor. Meagher also advised
the Union that GHR had retained Hulsey to administer
polygraph tests to all employees who had "opportunity"
and "knowledge" to accomplish the alleged sabotage.
Meagher stated that the recent increase in incidents of
sabotage was a serious matter and that the continuation
of such incidents could result in injury or death at or
near the refinery
The Union's spokesman Bergeron expressed doubt
about the alleged sabotage to the Worthington compres-
sor. He rejected the polygraph test as invalid, but did not
suggest an alternative test. Bergeron also refused
Meagher's offer to chose from among three polygraph
firms which Meagher named, or from any other poly-
graph testing firm the Union might prefer. Bergeron also
declined to talk to Hulsey, who had already arrived at
the refinery. The Union did not offer any alternative to
the polygraph test.
Noack and Meagher explained their reasons for believ-
ing that someone had placed the tab and cellophane
wrapper in the Worthington compressor. The Union sug-
gested that someone's carelessness was to blame.
Meagher rejected that explanation, claiming that a back-
up compressor was also not operating because of some-
one's deliberate misconduct.
Noack and Meagher offered to show to the Union the
Worthington compressor and GHR's investigatory files
on the suspected sabotage of the compressor, and all
other alleged sabotage. The Union was not interested.27
The Union asked whether GHR would permit bar-
gaining unit employees to have union representatives
with them during the polygraph test. Meagher relayed
this question to Hulsey, who advised that he would not
permit a union representative to be present in the room
during a polygraph test Meagher passed Hulsey's re-
sponse to the Union, but added that during the poly-
graphing, union representatives would be available to
employees immediately outside the testing room
27 According to Bergeron's testimony, it was not the Union's negative
attitude, but Meagher's failure to make arrangements which resulted in
Bergeron's not seeing the Worthington compressor However, I have
credited Meagher and Noack, who testified in a more forthright manner
than did Bergeron, that Bergeron was not interested in their invitations to
view the compressor and examine GHR's investigative file
Bergeron did not impress me as a candid witness In his responses on
cross-examination by GHR, Bergeron seemed uncertain and evasive at
times Thus, when asked if Meagher had raised a particular matter at the
bargaining table, Bergeron avoided the yes and no answers which the
questions suggested and gave an unresponsive answer I also received the
impression on cross-examination that Bergeron was not searching his
recollection and that he was hostile to GHR's counsel
1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Meagher read the proposed questions to the union rep-
resentatives and said that they would be answered "yes"
or "no." The questions were as follows:
1. Have you Told the Complete Truth Concern-
ing Your Knowledge of any sabotage at GHR?
2. Do you know the name of any person who has
committed any act of Sabotage against GHR?
3. Have you intentionally committed any act of
sabotage against GHR?
4. Have you talked or planned with anyone to
cause damage to any of GHR equipment?
5. Have you intentionally sabotaged any of
GHR's electrical or instrument air equipment?
6. Have you intentionally opened or closed any
valves with the intent to commit sabotage to GHR?
7. Have you intentionally committed any act of
sabotage to any protable compressor?
8. Have you reported to work at GHR under the
influence of any illegal drug?
9. Have you used any illegal drug on premises at
GHR?
10. Are you deliberately withholding any infor-
mation concerning your knowledge of sabotage at
GHR?
The Union objected to the polygraph test and request-
ed more information to permit it to consider the test.
Bergeron said the test was invalid as an investigative
tool. GHR did not provide any additional information
regarding the alleged sabotage , after the meeting of 21
February 1981 . GHR's representative, Meagher , insisted
that there be no further delay and that testing proceed
forthwith. I also find from Meagher 's and Hulsey's testi-
mony, that GHR had already decided on 19 February
1981 , that it would go forward with the test.
Bergeron asked if the polygraph test would be the
basis of GHR's determination of disciplinary action. He
also asked what GHR intended to do to employees who
refused to take the test . Meagher was noncommittal on
both questions . The meeting ended and GHR began po-
lygraphing employees on the midnight shift, 22 February
1981.
The expired 1978 contract between GHR and the
Union contained the following provision regarding indi-
vidual employee requests for union representatives
during disciplinary interviews:
ARTICLE XXXVI
DISCIPLINARY PROCEDURE
Section 2 . An employee may request union repre-
sentation at any stage of the disciplinary procedure
directed towards the said employee , including the
investigatory stage, and such representation shall
not be denied by the Company. The Union agrees
that it will furnish such representation to the em-
ployee.
On 22 February 1981 , the Union held two meetings
with unit employees , regarding the polygraph test. Ap-
proximately 60 unit members attended the meetings.
They heard International Representative Bergeron an-
nounce that GHR would administer lie detector tests to
the employees , and that contrary to GHR 's previously
stated intention , it would not permit union representation
inside the testing room . Bergeron expressed the Union's
opposition to the test and advised his listeners that the
decision to take or not take the test was theirs . Bergeron
read aloud the polygraph test questions which he had
obtained from GHR . He also warned the employees that
GHR would terminate them if they refused to take the
polygraph test or if they failed the test.
Testing continued on 22 , 23, 24 and 25 February and
at various unspecified dates thereafter in March 1981. In
administering the GHR test , GHR followed polygraph
examiner Ernie Hulsey 's advice . GHR permitted employ-
ees to have a union representative outside the test room,
available for consultation during the test, but barred
union representatives from accompanying employees into
the testing room. One-hundred and four bargaining unit
employees took the test.
GHR suspended indefinitely at least three employees
who failed the test on the sabotage question . However,
GHR advised them that it would reinstate them if they
passed the test. One of the three , Brown, passed the test
on his third try, and was reinstated.
On the respective dates shown below , 88 GHR indefi-
nitely suspended the following bargaining unit employees
because they refused to take the polygraph test, without
a union representative present . Gerald Benoit (23 Febru-
ary) Henry Vicknair (25 February), Dennis Guarino (23
February),29 Dino Miranda (24 February), Robert
Snyder (22 February), Eugene Williams (22 February),
Dan R. Duncan (22 February), Ross Allen (22 Febru-
ary), Gus Lee Couch Jr.30 (22 February), George Le-
Bourgeois (22 February), James K. Sharp (22 February),
Martin L . Ware (on or about 8 March), Marion Mericle
(25 February), Steven Miller (22 February), Gibson
Sewell Jr. (25 February), John Jaskola (25 February), 3 t
28 All dates refer to 1981.
Sa I find it unnecessary to resolve a minor conflict in Benoit's and
Guarino's testimony . Benoit testified that he told GHR's Security Direc-
tor Leslie Wallace that he and employee Dennis Guarino wanted union
representation at the polygraph test , and that when Wallace refused to
grant the request , Benoit refused to take the test without referring to
Guarino. According to Guarino, Benoit told Wallace that he and Guar-
ino would take the test "[o]nly if we get union representation," and that
when Wallace said they could not have such representation , Guarino an-
swered in substance that he would not take the test under that condition
and Benoit answered, "We won 't take it either."
I find from their testimony, that Benoit and Guarino , each speaking for
himself, told Wallace that he would not undergo the polygraph test with-
out the presence of a union representative.
30 Couch refused to take the polygraph test when GHR rejected his
request to . have union committeeman Glenn J. Gaubert with him while
he took the test.
31 The amended consolidated complaint alleged , and GHR 's answer
conceded , that GHR suspended John Jaskola indefinitely because he re-
fused to take a polygraph test without union representation in the test
room with him.
The parties also stipulated that GHR indefinitely suspended Lester
Henry on 25 February and John Buchwalter on 22 February.'However,
the record did not show GHR's motive for suspending these two em-
ployees.
Continued
GHR ENERGY CORP.
and Ronald P. Gaubert (25 February). GHR also indefi-
nitely suspended the following employees on the respec-
tive dates shown, because they refused to take the poly-
graph test:
Glenn J. Gaubert (22 February), William Hubbard Jr.
(22 February) '32 and Teryl Schexnayder (22 Febru-
ary). 33
Three or four weeks later, GHR gave Hubbard an-
other opportunity to take the polygraph test. Hubbard
agreed. Two weeks thereafter, he took the test, stressed
on a sabotage question and on a drug related question.
He failed a second test on a drug related question. GHR
retained Hubbard in an indefinitely suspended status
since 22 February 1981.
By letter to GHR's attorney, Meagher, dated 23 Feb-
ruary 1981, the Union renewed the request for informa-
tion it had made in its letter of 22 January 1981. In a
letter dated 2 March 1981, Meagher reviewed the evi-
dence GHR had presented to the Union on 21 February
1981, consisting of photographs of the compressor, a cel-
lophane wrapper, and a tab from a soft drink can.
Meagher insisted that by this evidence, GHR had shown
that sabotage had caused damage to the Worthington
compressor. The letter contained no further information
regarding alleged sabotage at GHR's' refinery.
By letter of 11 March 1981, the Union again pursued
the request for information contained in its letter of 22
January 1981. GHR did not respond.
On 25 February, Supervisor Bruce Dahnn34 told em-
ployee Ronald P. Gaubert to take the polygraph test.
Gaubert asked Dahnn what would happen if he, Gau-
bert, refused to take the test. Dahnn replied that as far as
GHR was concerned, "that would be an admission of
guilt and you'd be suspended."
On 19 March 1981, at a meeting between representa-
tives of GHR and the Union, International Representa-
tive Bergeron asked GHR's attorney, Meagher, for the
results of the polygraph test and a breakdown of the
number of GHR employees, TCP employees, and con-
tractor's employees who took the polygraph test.
Meagher's response was that there were no results be-
cause polygraph tests do not produce results.
Bergeron sought the results of the polygraph test in re-
sponse to GHR's request for a waiver of the contractual
bidding procedure for filing the vacancies created when
Accordingly, I find that the General Counsel has failed to show that
GHR violated the Act when it suspended Henry and Buchwalter and
shall recommend dismissal of so much of the complaint allegations as per-
tain to them
32 1 find from Hubbard's testimony that he did not tell GHR that he
was refusing to take the polygraph test without a union representative
being present with him during the test I further find from Hubbard's tes-
timony that although he told Glenn Gaubert that was the reason for his
refusal, Gaubert did not pass that reason on to GHR However, Hub-
bard's credited testimony also shows that he flatly refused to take the
polygraph test on 22 February, when a GHR representative asked him to
reconsider his position
as Schexnayder refused to take the test "under the conditions," when
Security Director Leslie Wallace asked if he would take the polygraph
Contrary to the General Counsel 's assertion , I find it unlikely that Wal-
lace would have understood the quoted language to mean "without a
union representative" I find instead,, that Wallace would have taken
Schexnayder's remark as a flat refusal to take the test
34 Referred to in the transcript as "Bruce Dom " The complaint and
answer in 15-CA-8088 agree upon the spelling I have used
1045
GHR suspended unit employees who refused to take the
polygraph test. Bergeron believed that if the Union had
the requested information, the Union could set up a
second polygraph test with an independent consultant for
the suspended employees and obtain their reinstatement.
By its letter of 20 March 1981, which GHR received 1
day later, the Union confirmed, and stated in detail, the
request for information which Bergeron had made on 19
March 1981. GHR did not respond to the letter. The text
of the letter was as follows:
On or about February 21, 1981, the Company
unilaterally instituted a polygraph test and required
employees represented by the Union to take the
polygraph test as a condition of further employ-
ment. Additionally, we understand the Company
has required other Good Hope employees not in the
bargaining unit as well as other individuals em-
ployed by, contractors working at Good Hope Re-
fineries to take the test. At a meeting of March 19,
1981, the Union asked the Company to furnish cer-
tain information with regard to the polygraph test,
those who took the test and the results of the test.
We would like to confirm our demand for the in-
formation sought in the meeting of March 19, 1981.
In the case that our demand was not clearly under-
stood, we are setting forth below exactly what in-
formation we must have in order to properly repre-
sent the employees in the bargaining unit, including
but not limited to those employees who were indefi-
nitely suspended and/or terminated as a result of
their refusal to take the test
We herewith demand the following information
and/or documents;
1. The names of all individuals in the bargain-
ing unit who were required to take the polygraph
test, the names of those who did in fact take the
test and the names of those who refused to take
the test;
2. With regard to each individual named in re-
sponse to inquiry #1 above, we demand the date
that the Company required each named employee
to take the test, the date on which each named
individual did in fact take the test or did in fact
refuse to take the test;
3. With regard to each of the employees in the
bargaining unit who took the test, we demand a
list of the questions asked of each individual, the
specific response of each individual to each of the
questions asked, whether anyone was present
when the test was administered to each such indi-
vidual, who administered the test and the results
of the test of each of the individuals;
4. Of those employees in the bargaining unit
who took the test, we demand the name of each
such individual who failed the test and the reason
therefor, as well as the results of the test as re-
quested hereinabove;
5. With regard to each of the employees in the
bargaining unit who took the test, we demand the
name of any individual who was disciplined
1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
thereafter, the type of discipline imposed, the
reason for the discipline, the date of the discipline
and any documents which the Company has in
connection with the discipline;
6. With regard to those employees in the bar-
gaining unit who refused to take the test, we
demand the date and time of their refusal to take
the test and the names of any individuals who
were present when such employees refused to
take the test;
7. Of those employees in the bargaining unit
who refused to take the test, we demand the date
of discipline imposed upon each such employee,
the name of the Company representative who
made the decision to impose the discipline; the
specific reason for the discipline and any docu-
ments which the Company has in connection
with the discipline;
8. With regard to each of the employees in the
bargaining unit who refused to take the test, we
demand the names of any individuals who were
present at the time of the imposition of the disci-
pline;
9. The names of all Good Hope employees not
in the bargaining unit who were required to take
the polygraph test, those who did in fact take the
test and those who refused to take the test;
10. With regard to each Good Hope employee
not in the bargaining unit named in response to
inquiry #9 above, we demand the date that the
Company required each named employee to take
the test, the date on which each named employee
did in fact take the test or did in fact refuse to
take the test;
11 With regard to each Good Hope employee
not in the bargaining unit who took the test, we
demand a list of the questions asked of each such
individual, the specific response of each such in-
dividual to each of the questions asked, whether
anyone was present when the test was adminis-
tered to each individual, who administered the
test and the results of the test of each such indi-
vidual;
12. Of those Good Hope employees not in the
bargaining unit who took the test, we demand the
name of each such individual who failed the test
and the reason therefor, as well as the results of
the test as requested hereinabove;
13. With regard to each Good Hope employee
not in the bargaining unit who took the test, we
demand the name of any individual who was dis=
ciplined thereafter, the type of discipline irri-
posed, the reason for the discipline, the date of
the discipline and any documents which the
Company has in connection with the discipline;
14. With regard to Good Hope employees not
in the bargaining unit who refused to take the
test, we demand the date of their refusal to take
the test, whether any discipline was imposed
upon each such employee, the date of the disci-
pline imposed and who made the decision to
impose the discipline;
15. Whether all Good Hope employees not in
the bargaining unit were required to take the
polygraph test, if not , we demand the names of
those individuals not required to take the test and
the reason therefor.
We understand that certain individuals employed
by contractors doing work at the premises of Good
Hope Refineries, Inc. were requited to take the
polygraph test. With regard to each such individual,
we would like the following information and/or
documents:
1. Whether all individuals who are employed
by contractors performing work at Good Hope
Refineries, Inc. were required to take the poly-
graph test; if not, we demand the reason therefor;
2. The names of each individual and the con-
tractor for whom each worked who were not re-
quired to take the polygraph test;
3. The names of each individual and the con-
tractor for whom each worked who were re-
quired to take the polygraph test, the names of
those individuals who did in fact take the test and
the names of those individuals who refused to
take the test;
4. With regard to each individual named in re-
sponse to inquiry #2 set forth immediately here-
inabove, we demand the date that each such indi-
vidual was required to take the test, the date on
which each such individual did in fact take the
test or did in fact refuse to take the test;
5. With regard to each individual employed by
any contractor doing work at Good Hope Refin-
enes, Inc. who took the test, we demand a list of
the questions asked of each individual, the specif-
ic responses of each individual to each of the
questions asked, whether anyone was present
when the test was administered to each individ-
ual, who administered the test, and the results of
the test of each individual;
6. Of those individuals employed by contrac-
tors doing work at Good Hope Refineries who
took the test, we demand the name of each such
individual who failed the test and the reason
therefor, as well as the results of the test;
7. With regard to each of the individuals who
were employed by contractors working at Good
Hope Refineries who took the test, we demand
the name of any individual who was disciplined
thereafter, the type of discipline imposed, the
reason for the discipline, the date of the discipline
and any documents which the Company has in its
possession in connection with such discipline;
8. With regard to those individuals employed
by contractors doing work at Good Hope Refin-
eries, Inc. who refused to take the test, we
demand the date of their refusal to take the test,
what action, if any, was taken against such indi-
viduals and who made the decision to take such
action;
GHR ENERGY CORP
9. Whether any individual employed by a con-
tractor working at Good Hope Refineries who
failed the test or refused to take the test had been
allowed to continue to work at the premises of
Good Hope Refineries who failed the test or re-
fused to take the test had been allowed to contin-
ue to work at the premises of Good Hope Refin-
eries, Inc., if so, then we demand the name of
each such individual.
The information and documents sought are essen-
tial to the Union in order for it to intelligently and
effectively represent all bargaining unit employees
at Good Hope Refineries, Inc , as well as to effec-
tively and intelligently represent those individuals in
the bargaining unit who were indefinitely suspended
and/or terminated as a result of either their refusal
to take the test or their having failed the test. As
you are aware, there are grievances pending with
regard to the Company's action against these indi-
viduals.
We would appreciate an immediate, reply and
your furnishing us with the information and docu-
ments demanded.
2. Analysis and conclusions
The General Counsel contended that GHR'violated its
duty to bargain in good faith by unilaterally 'imposing a
polygraph test upon the bargaining unit employees. The
General Counsel also urged that GHR violated Section
8(a)(1) of the Act by suspending unit employees who
either refused to take the test unless GHR permitted
them to have a union representative with them during
the test, or who flatly refused to take the test. GHR
argued that it did not violate Section 8(a)(5) and (1) of
the Act on the ground that an impasse in bargaining enti-
tled it to administer the polygraph test to the unit em-
ployees without the Union' s assent . GHR also contended
that the Act did not protect the employees' refusals to
take the test. I find merit in the General Counsel's con-
tentions.
In Taft Broadcasting Co., 163 NLRB 475, 478 (1967),
the Board, in considering whether an impasse existed in
that case, provided the following guidance for the instant
case:
Whether a bargaining impasse exists is a matter of
judgment. The bargaining history, the good faith of
the parties in negotiations, the length of the negotia-
tions, the importance of the issue or issues as to
which there is a disagreement, the contemporaneous
understanding of the parties as to the state of nego-
tiations are all relevant factors to be considered in
deciding whether an impasse in bargaining existed
GHR's failure to respond to the Union's letters of 22
January 1981, 23 February 1981, 11 March 1981, and 20
March 1981, and the Union's oral request for information
on 11, 12, and 21 February 1981 deprived the Union of
information it needed to pursue its own investigation, to
assess the merits of GHR's proposal to administer a poly-
1047
graph test to bargaining unit employees, and to protect
the interests of those employees.
Specifically, I find that GHR had a duty to provide
the Union with requested information regarding the spe-
cific places where the alleged sabotage occurred, the
names of witnesses, the details of each incident of alleged
sabotage, and other evidence and information regarding
the alleged sabotage , as well as information regarding the
testing of unit and nonunit employees. However, under
Board policy, GHR's obligation to provide the Union
with requested information did not include the duty to
hand over the witnesses' statements. Anheuser-Busch,
Inc, 237 NLRB 982, 984-985 (1978).
GHR's proffers of a severed air hose, pictures of
damage, a scrap of cellophane, and the ring from a soft
drink container were not a sufficient response to the
Union's legitimate requests for information. GHR's 11th
hour offer on 21 February 1981 to permit the Union to
examine its files regarding the alleged sabotage of the
Worthington compressor and all other alleged sabotage
came too late. For, along with that offer, GHR's repre-
sentative, Meagher, announced that the polygraph testing
would proceed immediately. In fact, GHR began admin-
istering the test during the shift which began at midnight
on 22 February 1981.
The complaint alleged, and I find that GHR's failure
and refusal to provide the requested information, regard-
ing a mandatory subject of bargaining, deprived the
Union of data relevant and useful to the Union as collec-
tive-bargaining representative. Accordingly, I find that
by that conduct GHR violated Section 8(a)(5) and (1) of
the Act. NLRB v. Acme Industrial Co., 385 U.S. 432, 436
(1967).
In light of its unlawful failure and refusal to supply the
Union with requested bargaining information, which the
Act required it to provide, GHR may not excuse its uni-
lateral imposition of the polygraph test on the bargaining
unit employees on the ground that there was an impasse.
Beyerl Chevrolet, Inc., 221 NLRB 710, 722 (1975).
GHR's claim of impasse also fails because of its unilat-
eral modification of Article XXXVI, Section 2 of the
1978 contract, which provided for union representation
upon an employee's request, "at any stage of the discipli-
nary procedure directed towards the said employees, in-
cluding the investigatory stage. . . ." For the record
shows that not until 21 February 1981, did GHR notify
the Union that it would not permit bargaining unit em-
ployees to have a union representative with them, in the
same room, while they were taking the polygraph test.
Clearly, the record leaves no doubt and I find, that GHR
installed the polygraph test as part of its disciplinary pro-
cedure. Indeed, GHR relied on the tests' results when it
suspended employee Hubbard.
The amended consolidated complaint did not allege
that the unilateral modification of the contractual provi-
sion violated the Act. However, the parties fully litigated
the facts and circumstances surrounding that charge.
Therefore, Board policy permitted me to find that con-
duct to be unlawful and to provide the appropriate
remedy. Caruso & Ciresi, Inc., 269 NLRB 265 fn. 2
(1984). Accordingly, I find that by failing to afford the
1048 DECISIONS OF THE NATIONAL- LABOR RELATIONS BOARD
Union sufficient advance notice to allow a reasonable op-
portunity for meaningful negotiations regarding this
change in the established disciplinary procedure, GHR
again violated Section 8(a)(5) and (1) of the Act. Beyerl
Chevrolet, Inc., supra, 221 NLRB at 722, and cases cited
there.
I find, therefore, that GHR violated Section 8(a)(5)
and (1) of the Act by unilaterally imposing a polygraph
test upon the bargaining unit employees. Our Way, Inc.,
268 NLRB 395, 415-416 (1983). I also find that by con-
tinuing employee William Hubbard Jr.'s suspension be-
cause he failed the polygraph test, GHR again violated
Section 8(a)(5) and (1) of the Act. Our Way, Inc., supra
at 416. Although the complaint did not allege that the
continuation of Hubbard's suspension because he failed
the polygraph test violated Section 8(a)(5) and (1) of the
Act, the parties fully litigated the facts showing this vio-
lation . Under these circumstances, Board policy author-
ized me to find that the continuation of Hubbard's sus-
pension violated Section 8(a)(5) and (1) of the Act..Ibid.
In Interboro Contractors, 157 NLRB 1295, 1298 (1966),
enfd. 388 F.2d 495 (2d Cir. 1967), the Board held that
Section 7 of the Act protects an individual's assertion of
a right provided in a collective-bargaining agreement.
Further, as the Court recognized, with approval, in
NLRB v. City Disposal Systems, 465 U.S. 822, 839 (1984),
the Board does not require that the individual refer to
the specific section of a collective-bargaining agreement
as a condition for obtaining the protection of Section 7
of the Act.
Applying the Interboro doctrine, I find that the em-
ployees listed above, who insisted upon the presence of a
union representative at their respective polygraph tests
were attempting to enforce a right granted by Article
XXXVI, Section 2 of the 1978 collective-bargaining
agreement between GHR and the Union, and therefore
were protected by Section 7 of the Act. I further find
that by suspending each of them for refusing to take the
test without the presence of a union representative, GHR
violated Section 8(a)(1) of the Act.
In Meyers Industries, 268 NLRB 493, 497 (1984), the
Board announced that
In general , to find an employee's activity to be
"concerted," we shall require that it be engaged in
with or on the authority of other employees, and
not solely by and on behalf of the employee him-
self.
Applying that test here, I find that Glenn J. Gaubert,
William Hubbard Jr., and Teryl Schexnayder engaged in
"concerted" activity within the meaning of Section 7 of
the Act, when they refused to take the polygraph test
which their fellow employees had discussed at meetings
on 22 February 1981, and which the Union had opposed.
I also find that GHR violated Section 8(a)(1) of the Act
by suspending them indefinitely because they refused to
take the polygraph test "The Loft," 277 NLRB 1444
(1986).
I further find that by threatening employee Ronald
Gaubert with suspension if he refused to take a poly-
graph test, Supervisor Bruce Dahnn'restrained, coerced,
and interfered with an employee in the exercise of his
right under Section 7 of the Act to join with other em-
ployees in their refusal to take the unilaterally imposed
polygraph test. Accordingly, I find that by Dahnn's
threat, GHR violated Section 8(a)(1) of the Act. Ad-
vanced Installations, Inc., 257 NLRB 845, 850-851 (1981).
I also find that information concerning unit and non-
unit employees which the Union requested orally on 19
March 1981, and by its letter of 20 March 1981, was rel-
evant to the Union's collective-bargaining role. The
Union required the information regarding the polygraph
testing of unit and nonunit employees to process griev-
ances. The Union also sought the information to per-
suade the suspended unit employees, who had refused to
take the test, to seek reinstatement by taking the test and
thus preclude their replacement I find therefore, that the
Union was entitled to the requested information. Loral
Electronic Systems, 253 NLRB 851, 853 (1980). I there-
fore find that GHR violated Section 8(a)(5) and (1) of
the Act by not furnishing the information which the
Union requested on 19 and 20 March 1981.
J. TCP's Employees, the Alleged Accretion and GHR's
Alleged Refusal to Furnish Information to the Union
Regarding its Relationship with GHR
1. Facts35
On 29 December 1971, the Union was certified as the
collective-bargaining representative of the following unit
of GHR's employees:
All production, and maintenance employees, includ-
ing laboratory employees employed at [GHR's]
Good Hope, Louisiana, facility; excluding office
clerical employees, the chief chemist, shift foremen,
guards and supervisors as defined in the Act.
The unit description in the 1978 collective-bargaining
agreement's recognition clause, Article II, Section 1, in-
cluded GHR's construction employees. I also note that
Article XXXIV, Section 1 of the 1978 agreement reflect-
ed the parties' intention to include GHR's warehousemen
as part of the bargaining unit. In August 1980, GHR ter-
minated its maintenance department and contracted out
the refinery's routine maintenance. As previously stated,
the Union and GHR were parties to a 2-year collective-
bargaining agreement covering this unit, which expired
on 28 February 1980.36
In late 1978, TCP began operations as a general con-
tractor, on a cost plas basis, at GHR's refinery. GHR
was TCP's only customer. TCP issued invoices for its
work to GHR. In turn, GHR paid TCP by check, the
same manner in which it paid other contractors.
On 15 January, GHR and the Union began negotia-
tions for a new contract. At this first meeting, Interna-
tional Representative Jimmy Roan asked GHR's repre-
35I based my findings of fact upon the parties' stipulations and testi-
mony of Jimmy Roan, Jerry K Deutsch, Gail Simmons, Glenn J Gau-
bert, Howard Schwamb, James Zievert, Mark Hebert, Gary Karr, and
Larry Cunningham
36 Unless otherwise stated, all dates in this section of the decision refer
to 1980
GHR ENERGY CORP
sentatives John Meagher and Jerry Deutsch for informa-
tion about TCP's employees.
On the following day, Deutsch provided information
regarding TCP's classification and some rates of pay.
Deutsch also told Roan that TCP employed maintenance
employees at GHR's refinery in four shifts and described
the breakdown of the classifications and their numbers
on each shift
On 23 January, the parties met again. Deutsch provid-
ed more information regarding TCP's employees.
Deutsch described TCP's hospital insurance policy, its
vacation policy, and the rates of pay for TCP's employ-
ees. He also revealed that the larger part of TCP's work
was maintenance work, that the lesser portion was new
construction, and that GHR supervisors assigned mainte-
nance work to TCP employees. Deutsch advised the
Union that TCP employees worked in the GHR ware-
house, where employee Gail Simmons and other GHR
employees worked.
The Union and GHR met again on 30 January. Gail
Simmons, on the Union's behalf delivered, the following
letter to GHR:
We understand that TCP or TCP Engineering
and Construction presently and for almost a year
has been performing certain work at the Good
Hope Refineries Plant in Good Hope, Louisiana.
We believe there is a connection between Good
Hope Refineries, Inc. and TCP, either financially or
through management personnel, or both. We under-
stand that TCP has its offices at 257 Prospect
Avenue in Good Hope, Louisiana, the same address
as the offices of Good Hope Refineries, Inc. We un-
derstand that TCP is and has-been using equipment
which has "G.H.R." stenciled thereon.
We hereby demand that the Union be supplied
with the names of all individuals who are employed
by TCP. With regard to each of those individuals
so named, we would also demand the date of hire,
the specific job duties and/or description, the rates
of pay, hours of employment, and any and all fringe
benefits and other conditions of employment. Addi-
tionally, we demand the following information:
(1) Whether there is an agreement with TCP
for the furnishing of services to Good Hope If
so, please advise as to what the agreement is. If
such agreement be in writing, we hereby demand
a copy of the agreement.
(2) Exactly what services and/or work that
TCP and/or its employees perform at Good
Hope Refineries.
(3) TCP's telephone numbef and- office ad-
dress, or mailing address.
(4) What positions, if any, in TCP are held by
officers, shareholders, directors, supervisors, or
other management representatives of Good Hope
Refineries, Inc.
((5) The names of any persons who function in
a capacity related to labor relations for TCP, for
Good Hope, or for both. With those names
please supply the company for which those indi-
viduals work.
1049
(6) Whether or not any supervisors of Good
Hope have authority over any employees of TCP
or vice-versa. If so, then please name said super-
visors and the employees over which they have
control.
The Union is demanding this information in order
that it can effectively and intelligently administer
and/or enforce the Collective Bargaining Agree-
ment with Good Hope Refineries, Inc. and to be
able to properly evaluate and/or process pending
grievances. Additionally, this information is request-
ed so that the Union can effectively and intelligent-
ly represent the bargaining unit employees in the
pending negotiations.
We await your immediate reply.
After GHR received the letter, the negotiating session
continued. Deutsch provided more information regarding
TCP's employees He recited some wage rates for me-
chanics A and B, repeated earlier information regarding
TCP's hospital insurance for its employees, and provided
information on TCP's employee life insurance benefits.
Deutsch also explained TCP's policies regarding vaca-
tions, holidays, work uniforms and work assignments at
the warehouse and other locations. Deutsch announced
that he had provided all the information which the
Union had requested at a previous meeting.
The Union's representatives expressed interest in
TCP's employees. Employee Gail Simmons, speaking on
the Union's behalf, stated that "these [employees] should
become union members."
Attorney Meagher sought clarification of Simmons' re-
marks. He asked: "Are we talking about these employees
or all of TCP?"
Union Representative Roan answered that the Union
was "putting the company on notice today that all em-
ployees of Good Hope Refinery should be covered with
these same benefits and wages and conditions of employ-
ment."
During the next negotiating session, on 31 January,
Roan and Simmons again raised the unit status of TCP's
employees in discussion with GHR's bargaining repre-
sentatives. Roan announced that the Union intended to
file an unfair labor practice charge alleging that GHR
was "attempting to circumvent the contract by working
the TCP maintenance people in the unit." Later in the
session, Gail Simmons remarked that the Union consid-
ered TCP employees to be GHR employees. GHR's rep-
resentatives did not respond to these remarks.
On 6 February, GHR presented the following letter,
signed by Jerry Deutsch, to the Union:
This will confirm the information the Company
provided you which you had requested during ne-
gotiations for a new labor agreement to become ef-
fective February 29, 1980.
As the Company indicated to you, the number of
outside contractors utilized by the Company varies
from time to time. The actual number of employees
fluctuates daily Specifically, you requested certain
information concerning T.C.P. Construction Com-
1050 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pany. The following information was submitted to
you in response to your request-
Classification Hourly Rate
Mechanic A on 1st $11.30
shift
Mechanic A on 2nd 11.80
shift
Mechanic A on 3rd 12.30
shift
Mechanic B on 1st 9.40
shift
Mechanic B on 2nd 9.90
shift
Mechanic B on 3rd 10.40
shift
Laborers on nights 6.60
Laborers on days 6.05
The benefits received by T.C.P. Construction
Company employees are as follows:
Company paid Blue Cross & Blue Shield
Company paid Life Insurance. For employees
earning up to $10,000/yr. is one (1) times salary.
For employees between $10,000 and $30,000/yr.
one and one-half ( 1 1/2) times salary Nine (9)
paid holidays,
Vacation-One (1) week after six (6) months.
Two (2) weeks after one (1) year.
Pay for time worked on a holiday is at straight
time plus holiday pay.
Uniforms are supplied by a Uniform Service
Company for which the Company and the em-
ployee share the cost of the service on a fifty-
fifty basis.
In accordance with our long standing under-
standing and practice which exists between the
Company and the Union, certain T.C.P. Construc
tion Company employees have been assigned to per-
form maintenance work at the Good Hope Refin-
ery. As I indicated to you during negotiations, the
number of employees fluctuates . On the date I ob-
tained the information which was submitted to the
Union , the following classifications and number of
employees were assigned to maintenance.
37 Millwrights
7 Boilermakers
4 Mobile Equipment Operators
6 Welder Fitters
5 Electricians
2 Instrument Technicians
I trust the above information is sufficient for your
needs.
On 12 February, the Union advised GHR that the
letter of 6 February did not satisfy the Union's request of
30 January. The Union also reaffirmed its claim that
TCP's employees were "in fact GHR employees per-
forming bargaining unit work and are covered by its cur-
rent contract . . .." The Union also insisted that the
agreement under negotiation would cover TCP's em-
ployees.
Attorney Meagher, replying for GHR, rejected the
Union's claim of entitlement to names and addresses of
TCP's employees and argued that GHR had satisfied its
legal obligation to provide requested information to the
Union . Meagher also rejected the Union 's claim that
TCP's employees were in fact GHR's employees.
Meagher insisted that TCP was an independent contrac-
tor. At a negotiating session on 20 February , Meagher
insisted that TCP was a company separate from GHR.
The parties did not reach agreement on the unit place-
ment of TCP's employees.
The General Counsel, the Union, GHR, and TCP stip-
ulated, and I find, that GHR and TCP have been com-
monly owned , have shared some common offices and di-
rectors, and have shared some common control over
their respective labor relations . The parties have also
stipulated and I find that at all times material to these
cases, GHR and TCP constituted a single employer.
TCP's employees performed construction, construction
maintenance , and normal plant maintenance , at GHR's
expanding refinery.
During January and February 1980, while GHR main-
tenance employees were on a training program, 61 TCP
employees replaced them, performing plant maintenance.
From mid-1980 until mid-1981, TCP employed more
than 3,000 employees . There is no bargaining history for
TCP's employees.
GHR's employee compliment ranged from 500 refin-
ery and office employees , including supervisors, to be-
tween 1500 and 1600 in 1982 . GHR's maintenance em-
ployees were responsible for plant maintenance. GHR's
production employees kept watch on the refinery's pro-
duction and production schedules.
TCP had its own separate president and management,
including accounting and personnel departments. TCP
also had electrical , structual, pipefitting, welding, quality
control and other line operating departments . TCP estab-
lished its own disciplinary policy, and its own separate
supervision for its employees.
TCP had its own offices in trailors , which GHR pro-
vided. TCP and GHR had separate telephones and re-
ceived separate telephone bills. TCP had its own office
manager , office clerical employees, and hired its own
employees . TCP's office manager and his clerks , adminis-
tered TCP 's payroll , invoices , disbursements , purchasing,
bookkeeping and timekeeping , separately, and wholly in-
dependent of GHR. TCP maintained its own records,
personnel files, bills and other records.
TCP maintained its own bank accounts from which it
paid wages and other expenses. TCP had its own person-
nel manager , who dealt with TCP's day-to-day labor re-
lations problems. TCP issued invoices for the work it
performed at the refinery. GHR paid TCP for such work
in the same manner it paid other contractors . The parties
stipulated and I find that the same workmen 's compensa-
tion insurance policy covers TCP's and GHR's employ-
ees.
TCP developed and administered separate and differ-
ent wage scales and fringe benefits. TCP established
GHR ENERGY CORP
fringe benefit policies for its maintenance employees.
However, it provided no fringe benefits for its employees
performing construction work.
There was substantial differences between the fringe
benefits of TCP and GHR. As of February 1980, GHR
provided 71.4 percent of the premium for single health
insurance coverage and 69 percent of the premium for
family health insurance coverage for the bargaining unit
employees. TCP paid 100 percent of the premium for its
maintenance employees' health insurance. GHR provided
fully paid life insurance for its employees equal to their
base salary . TCP's maintenance employees earning up to
$10,000 per year received life insurance policies equal to
their annual wages. TCP provided maintenance employ-
ees earning between $10,000 and $30,000 per year with
life insurance equal to one and one-half times their
annual wages While TCP gave its maintenance employ-
ees nine paid holidays, GHR granted 11 paid holidays to
its employees. TCP provided 1 week's vacation after 6
months employment and 2 weeks' vacation after 1 year's
employment GHR's employees received 1 week of vaca-
tion after 6 months; 2 weeks after 1 year and 3 weeks of
vacation after 5 years. In addition, GHR, unlike TCP,
paid its employees for 42 hours per week of vacation.
GHR provided no uniforms for its employees. TCP pro-
vided its employees with work uniforms and shared the
cost with its employees on a 50-50 basis. GHR granted
sick pay, retirement benefits, a Christmas bonus and a
profit-sharing plan to its employees, TCP provided none
of these benefits for its employees. TCP required em-
ployees to provide their own tools GHR provided tools
to its employees.
TCP employees used a parking lot separate from the
lot GHR assigned to its employees. TCP employees used
port-a-lets. GHR provided, its employees with permanent
restroom facilities Each employee group had its own
timeclock and gate GHR and TCP, each, had its own
personnel officer and hiring process.
TCP and GHR also differed in the classifications and
wages they provided for their employees. As of Febru-
ary 1980, TCP employed 30 classifications of employees.
Included were a variety of crafts. Hourly wage rates
ranged from $6.05 for driver-helpers to $11.30 for weld-
ers, fitters, iron welders, operators, millwright, boiler-
makers, electricians, and pipefitters, and $11.50 for tech-
nicians.
As of February 1980, GHR's bargaining unit had 11
classifications of employees consisting of mechanics A
and B , laborers, helpers, warehousemen , operators 1 and
2, tank farm men, relief supervisors, laboratory assistants
1st and 2nd class. The hourly,wage rates for GHR's em-
ployees ranged from $8.02 for laborers to $10.52 for
relief supervisors. Included in GHR's classifications
were: millwrights, boilermakers, electricians, welders,
and instrument men.
Although there was similarity of skills, TCP's employ-
ees were generally more skilled and experienced than
their GHR counterparts. GHR had 3 or 4 employees ca-
pable of performing major maintenance work.
Although GHR and TCP employees did not work
side-by-side, there was some contact between the two
groups. Day-to-day contact between TCP and GHR em-
1051
ployees regularly occurred in the warehouse and in the
processing of work orders. TCP and GHR employees
drew spare parts from a common warehouse which was
under GHR's supervision and control. Also employees
from both companies worked at the issuance of parts
under GHR's warehouse supervisor, Phil Albarese
However, while TCP's employees worked evenings and
graveyard shifts at the warehouse, GHR employees
worked on the warehouse's day shift. Additional contact
occurred when GHR employees performed preparatory
or setup work to enable the TCP employees to perform
maintenance or repair work and advised the TCP em-
ployees of safety precautions to be taken while perform-
ing such work.
When GHR maintenance employees were not avail-
able, when a maintenance project was beyond the capa-
bility of GHR's maintenance employees, or in an emer-
gency, GHR's supervisors would rely on TCP employ-
ees to perform the work, on a contract basis.
GHR employed its maintenance employees on some
construction and startup work. However, for the most
part, GHR's maintenance employees performed normal,
routine maintenance on existing equipment . GHR's main-
tenance supervisors arranged for TCP's services by
direct contact with TCP supervisors. GHR's mainte-
nance welders never performed construction work.
TCP's maintenance welders also did construction weld-
ing. The record also showed one instance in which a
TCP electrician worked with a GHR electrician under a
single supervisor. Aside from this instance, GHR and
TCP exercised separate supervision over their respective
employees.
2. Analysis and conclusions
The General Counsel contended that GHR and TCP
violated Section 8(a)(5) and (1) of the Act on and after
30 January, by refusing to include TCP's construction
and maintenance employees as an accretion to the bar-
gaining unit of GHR 's production , maintenance, and con-
struction employees. GHR and TCP urged rejection of
that contention on the ground that the latter's employees
were not an accretion to the existing bargaining unit I
agree with GHR and TCP that the facts require rejec-
tion of the General Counsel's position.
In Gould, Inc., 263 NLRB 442, 445 (1982), the Board
provided the following guidance on the issue of whether
an accretion existed in this case
An accretion, as the term has been employed by
the Board and the courts, is merely the addition of
new employees to an already existing group or unit
of employees. In determining whether a new facility
or operation is an accretion, the Board has given
weight to a variety of factors including integration
of operations, centralization of managerial and ad-
ministrative control, geographic proximity, similari-
ty of working conditions, skills and functions,
common control of labor relations, collective-bar-
gaining history, and interchange of employees. In
the normal situation some elements militate toward
and some against accretion, so that a balancing of
1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
them is necessary. Where the new employees are
found to have common interests with members of
an existing bargaining unit and would have been in-
cluded in the certified unit or covered by the cur-
rent collective-bargaining agreement an accretion is
found to exist. However, where a group of new em-
ployees numerically overshadows the existing certi-
fied unit and may constitute a separate or independ-
ent appropriate unit, the Board is "cautious" to find
that the new employees are part of the existing unit
since such a finding would deprive the larger
group's employees of their statutory right to select
their own bargaining representative. In such cases
the Board must balance the right of employees to
select a bargaining agent against the concomitant
statutory objective of maintaining established stable
labor relations. [Footnotes omitted.]
Applying the Board's policy here, to the situation as of
30 January, the date of the Union's demand ,37[ I find
and conclude that TCP's employees did not constitute an
accretion to the existing bargaining unit. Geographic
proximity, integration of operations, interchangeability,
some occasional common supervision, and daily job re-
lated contacts between TCP and GHR employees, weigh
in favor of accretion. However, there were other factors
which persuaded me that TCP's employees should not be
added to the existing bargaining unit as an accretion.
Thus, while TCP's employees had no bargaining history,
GHR's employees have had a union representative since
1971. Further, TCP's employees and GHR's employees
generally have separate supervision, administration, and
management. Each company maintains separate control
of its labor relations including hiring, discipline and dis-
charge. I also note that TCP's employees use a separate
gate, separate parking, and toilet facilities separate from
those which GHR provides for the bargaining unit em-
ployees. GHR and TCP devised and implemented sepa-
rate and independent policies regarding employee fringe
benefits and conditions of employment
Finally, the record suggested that at the time of the
Union's demand that TCP's employees be added to the
existing bargaining unit, the number of TCP employees
employed at GHR's refinery was expanding toward
3,000. The record also suggested that the numbers of em-
ployees in the bargaining unit as of 30 January was
somewhere between 500 and 1,600. Thus, the number of
employees the Union wanted to add to the certified bar-
gaining unit as of 30 January, might well have exceeded
the number of employees in the existing unit.
In view of the foregoing, a finding of accretion as of
30 January, the date of the Union's demand for the inclu-
sion of TCP's employees in the existing bargaining unit,
would be contrary to Board policy Accordingly, I find
that GHR and TCP did not violate Section 8(a)(5) and
(1) of the Act by refusing to add TCP's employees to the
existing certified bargaining unit of GHR's employees,
apply the terms of the 1978 contract to them, and to rec-
37 The Board also recognized in Gould, Inc, supra, 263 NLRB at 446,
that the issue of whether a group of employees constituted an accretion
to an existing bargaining unit "must be determined on the facts that exist-
ed on the date of the union's demand "
ognize the Union as the exclusive bargaining representa-
tive of TCP's employees on and after 30 January I shall
therefore recommend dismissal of the allegations in the
amended consolidated complaint that GHR and TCP
violated those sections of the Act by that refusal.
The General Counsel alleged that GHR's refusal to
honor portions of the Union's written requests of 30 Jan-
uary for information regarding TCP and its relationship
with GHR violated Section 8(a)(5) and (1) of the Act.
Specifically, the record showed that GHR refused to
supply information requested in the six numbered para-
graphs of the Union's letter of 30 January. GHR con-
tended that its response to the Union's requests for infor-
mation regarding TCP and its relationship to GHR did
not violate the Act on the grounds that the information
withheld pertained to nonunit employees, and the Union
had failed to show that it was relevant and necessary to
its collective-bargaining function. Contrary to GHR's po-
sition, I find that the Union, having shown the probable
relevance of the requested information, was entitled to
that information, and that GHR's refusal to provide it
violated the Act.
The Union had substantial ground for suspecting that
TCP's employees were properly part of the existing unit.
The record showed that the Union's bargaining repre-
sentatives were aware that TCP's employees were per-
forming construction and maintenance work at GHR's
refinery. Some TCP employees worked at GHR's ware-
house. Others came to the warehouse on a daily basis to
pick up parts to be installed in the refinery. TCP's em-
ployees, wearing distinctive uniforms and safety helmets,
openly and frequently performed routine maintenance
similar to that which GHR's unit employees performed.
Union Representatives Simmons and Roan were. aware
of these circumstances as they sat at the bargaining table
on and after 30 January.
I find that the Union by its letter of 30 January, and its
demand at the negotiations, on the same date, expressed
its desire that TCP's employees be included in the exist-
ing bargaining unit and be covered under the collective-
bargaining agreement. I also find that the Union, by its
letter and demands at the negotiations on 30 January, ex-
pressed its good-faith belief that TCP's employees were
improperly excluded from the existing unit.
Where, as here, the Union had clearly demonstrated
and expressed, a good-faith belief as of 30 January, that
TCP's employees might have been improperly excluded
from the existing bargaining unit, and the collective-bar-
gaining agreement's coverage, the Act required that
GHR provide the requested relevant information con-
cerning TCP.and GHR's relationship with TCP. Ray C.
Lapp Air Conditioners, 270 NLRB 641 fn. 2 (1984); Leon-
ard B. Hebert, Jr., 259 NLRB 881, 884-886 (1981). By its
failure and refusal to provide that information on and
after 6 February, GHR violated Section 8(a)(5) and (1)
of the Act.
CONCLUSIONS OF LAW
1. Respondent, GHR Energy Corp ., is an, employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
GHR ENERGY CORP.
2. Respondent , TCP Construction Co., Inc., is an em-
ployer within the meaning of Section 2(2), (6), and (7) of
the Act.
3. Respondents, GHR Energy Corp. and TCP Con-
struction Co., Inc., are a single employer within the
meaning of the Act.
4. Oil, Chemical and Atomic Workers International
Union, and its Local 4-447, referred to collectively as the
Union, are labor organizations within the meaning of
Section 2(5) of the Act.
5. All production , maintenance and construction em-
ployees including laboratory employees employed by
GHR at its refinery in Good Hope, Louisiana, excluding
office clerical employees, the chief chemist, shift fore-
men, guards and supervisors as defined in the Act consti-
tute a unit for purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
6, The Union , at all times material , has been , and now
is, the exclusive bargaining representative of the employ-
ees in the appropriate unit
7. Respondent, GHR, interfered with, coerced, and re-
strained its employees in the exercise of rights guaran-
teed by Section 7 of the Act, thereby committing unfair
labor practices prohibited by Section 8(a)(1) of the Act
by:
(a) Imposing an excessively broad disloyalty policy on
its employees;
(b) Suspending indefinitely the following employees
for refusing to take a polygraph test without the pres-
ence of a union representative, as provided in a collec-
tive-bargaining agreement between GHR and the Union:
Gerald Benoit
Dennis Guarino
Robert Snyder
Dan R Duncan
Ross Allen
George LeBourgeois
James K. Sharp
John Jaskola
Steven Miller
Henry Vicknair
Dino Miranda
Eugene Williams
Gus Lee Couch Jr.
Marion Mericle
Gibson Sewell
Ronald P. Gaubert
(c) Suspending indefinitely Glenn J. Gaubert, William
Hubbard Jr, and Teryl Schexnayder because they con-
certedly refused to take an unlawfully imposed poly-
graph test;
(d) Threatening employee Ronald P. Gaubert with sus-
pension if he refused to take a polygraph test;
(e) Depriving employee Gail Simmons of his right to
select a union representative to be present with him at an
investigatory interview which was likely to result in dis-
ciplinary action.
8. GHR violated Section 8(a)(3) and (1) of the Act by.
(a) Discontinuing the sick leave benefits of employees
Emanuel A . Seals Jr. and Gregg Williams because it be-
lieved that they had actively supported the Union's
strike;
(b) Offering striker replacements an opportunity to
obtain free health insurance benefits and withholding a
similar opportunity from employees who had engaged in
a strike;
(c) Paying striker replacements classified as operators
2 higher wage rates than those paid to employees who
had engaged in a strike.
1053
(d) Suspending and later terminating employee Rene
Elfer because he engaged in union activity and supported
the Union;
(e) Discharging employee Gail Simmons because he
engaged in union activity.
9. GHR violated Section 8(a)(5) and (1) of the Act by:
(a) Unilaterally, and without giving the Union an op-
portunity to bargain , enrolling strike replacements in its
own health program rather than in the health program
granted to bargaining unit employees under the collec-
tive-bargaining agreement.
(b) Unilaterally, and without giving the Union an op-
portunity to bargain, paying bargaining unit employees,
hired during a strike, at a higher rate than it paid unit
employees in the same classification;
(c) Unilaterally, and without giving the Union an op-
portunity to bargain, promulgating a disloyalty policy to
be enforced against bargaining unit employees.
(d) Failing to provide the Union with information
which it had requested in its letter of 6 November 1980,
regarding the progress of GHR's investigation of the al-
leged misconduct of employees John L. Vicknair and
Richard E. Hodges as of 6 November 1980, any new evi-
dence GHR might have obtained during that investiga-
tion, and information regarding whether GHR had dis-
charged employees John L Vicknair and Richard E.
Hodges, the date of the termination and the reasons for
the terminations.
(e) Failing to provide the Union with information it
had requested in verbal requests on 11, 12, and 21 Febru-
ary 1981 and in its letters of 22 January 1981, 23 Febru-
ary 1981, 11 March 1981, and 20 March 1981, regarding
alleged sabotage and GHR 's investigation of alleged sab-
otage, but not including witnesses ' statements , and infor-
mation regarding the imposition and results of polygraph
tests on bargaining unit and nonbargaining unit employ-
ees.
(f) Unilaterally, and without giving the Union an op-
portunty to bargain, imposing a polygraph test upon unit
employees and rescinding Article XXVI, Section 2 of
the 1978 collective-bargaining agreement, under which a
bargaining unit employee was entitled to union represen-
tation upon request "at any stage of the disciplinary pro-
cedure directed toward the said employee, including the
investigatory stage."
(g) Renewing employee William Hubbard Jr.'s indefi-
nite suspension because he failed the unilaterally imposed
polygraph test.
(h) Denying the Union the right to represent employee
Steven Brackin in accordance with his request at the
grievance meeting on or about 31 October 1980.
(i) Failing and refusing to provide the Union with the
names of individuals who had reported to GHR that em-
ployee Gail Simmons had solicited them on the Union's
behalf, as the Union had requested in its letters of 17
July and 18 August 1980.
0) Failing and refusing to provide the Union with in-
formation regarding TCP Construction Co., Inc., and its
relationship with GHR, which information the Union
had requested in its letter of 30 January 1980.
1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10. The unfair labor practices found above affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
11. GHR has not violated Section 8(a)(5) and (1) of
the Act by terminating the training program provided in
the 1978 collective-bargaining agreement.
12. GHR has not violated Section 8(aX5) -and (1) of
the Act by eliminating the "breaker day" policy.
13. GHR and TCP did not violate Section • 8(a)(5) and
(1) of the Act by failing and refusing to extend the 1978
collective-bargaining agreement to TCP's employees, or
by failing and refusing to recognize and bargain with the
Union as exclusive representative of TCP's employees, as
an accretion to the existing appropriate unit described in
paragraph 5 above.
14. GHR did not violate Section 8 (a)(5) and (1) of the
Act by refusing to provide the Union with the state-
ments of witnesses which GHR obtained in its investiga-
tion of sabotage.
15. GHR has not violated Section 8(aX3) and (1) of
the Act by suspending employees John L . Vicknair and
Richard E . Hodges indefinitely and thereafter refusing to
reinstate them.
16. GHR did not violate Section 8(a)(1) of the Act by
threatening John L. Vicknair with a lawsuit because he
engaged in activity protected by Section 7 of the Act.
REMEDY
Having found that GHR has engaged in certain unfair
labor practices, I find it necessary to order it to cease
and desist and to take certain affirmative action designed
to effectuate the policies of the Act.
As GHR discriminated against Gail Simmons by dis-
charging him, I shall recommend that GHR be ordered
to offer him reinstatement and make him whole for any
loss of earnings and other benefits, computed on a quar-
terly basis from the date of discharge to the date of
proper offer of reinstatement , less any net interim earn-
ings, as prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in Florida Steel
Corp., 231 NLRB 651 (1977).
Having found that GHR discriminated against Rene
Elfer by suspending him and thereafter discharging him,
I shall recommend that GHR be required to offer him
reinstatement and make him whole for any loss of earn-
ings and other benefits in the manner prescribed for rem-
edying the discriminatory discharge of employee Gail
Simmons.
Having found that GHR unlawfully suspended the fol-
lowing employees, I shall recommend that GHR be or-
dered to offer them reinstatement and make them whole
for any loss of earnings and benefits in the same manner
prescribed for remedying the discriminatory discharge of
employee Gail Simmons:
Gerald Benoit
Dennis Guarino
Robert Snyder
Dan R. Duncan
Ross Allen
George LeBourgeois
James K. Sharp
William Hubbard Jr.
Steven Miller
Henry Vicknair
Dino Miranda
Eugene Williams
Gus Lee Couch Jr.
Marion Mericle
John Jaskola Gibson Sewell .
Glenn J. Gaubert Ronald P. Gaubert
Teryl Schexnayder
I shall also recommend that GHR be required to
remove from its files any and all references to Gail Sim-
mons ' discharge, Rene Elfer's suspension or to Elfer's
discharge, or to the suspension of the employees listed in
the preceding paragraph , and notify them in writing that
it has done so and that it will not use Simmons' dis-
charge against him, or Elfer 's suspension or discharge
against Elfer , or the suspensions of the employees listed
above against them in any way.
Having found that GHR discriminated against employ-
ees Emanuel A. Seals Jr . and Gregg Williams by discon-
tinuing their sick leave benefits on 1 March 1980, I shall
recommend that GHR be required to make them whole
by paying to them , with interest , the sick leave benefits
due them under Article XXXI of the 1978 collective-bar-
gaining agreement, during the period from 1 March 1980
until 16 April 1980 in the case of Seals , and in the case
of Williams , from 1 March 1980 until it has been deter-
mined either that his disability, on which the benefits are
based has ended , or that the contractual right to receive
sick benefits has expired , whichever occurs first.
Having found that GHR unilaterally afforded strike re-
placements an opportunity to enroll in a health insurance
program under which they were not required to make
any premium payments , and not offering the same oppor-
tunity to returning strikers, I shall recommend that GHR
cease and desist from any further such practices. I shall
also recommend that GHR be ordered to revoke these
unilateral changes in the terms and conditions of employ-
ment of the bargaining unit employees whom GHR hired
as strike replacements.
Having found that GHR discriminated against strikers
who returned to work, I shall also recommend that
GHR make them whole by reimbursing them for health
insurance premiums they may have paid for health insur-
ance as provided under the 1978 contract from 14 April
1980 until GHR rescinds the premium-free insurance
coverage it granted to strike replacements plus interest. I
shall also recommend that GHR make whole the strikers
who returned to work as operators 2 by paying them at
the rate which the 1978 contract provided for operator
1, plus interest, from 14 April 1980 until GHR rescinds
its grant of operator I wage rates to strike replacements
employed as operators 2.
Having found that on 21 May 1980, GHR unilaterally
promulgated a disloyalty policy, without giving the
Union an opportunity to bargain about it , and which
policy excessively restrained its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, I
shall recommend that GHR be ordered to rescind its
policy statement on disloyalty.
Having found that GHR refused to bargain in good
faith in violation of Section 8(a)(5) and ( 1) of the Act by
failing and refusing to provide the Union with informa-
tion which it requested in its letter of 6 November 1980,
regarding the progress of GHR's investigation of the al-
leged misconduct of employees John L. Vicknair and
Richard E. Hodges, any new evidence GHR had ob-
GHR ENERGY CORP 1055
tained in its investigation, and information regarding
whether GHR had terminated them, I shall recommend
that GHR be required upon request to furnish the infor-
mation to the Union.
Having found that GHR refused to bargain in good
faith in violation of Section 8(a)(5) and (1) of the Act by
failing and refusing to provide the Union with the names
of individuals reporting knowledge of solicitation by em-
ployee Gail Simmons, I shall recommend that GHR be
required to furnish that information upon request.
Having found that GHR violated Section 8(a)(5) and
(1) of the Act by unilaterally, and without giving the
Union an opportunity to bargain, imposing a lie detector
test upon the employees in the bargaining unit described
above in paragraph 5 of the Conclusions of Law, as a
condition of employment, I shall recommend that it re-
scind its policy of administering that test to the employ-
ees in the unit described in paragraph 5 of the Conclu-
sions of Law.
Having found that GHR violated Section 8(a)(5) and
(1) of the Act by unilaterally and without bargaining
with the Union, modifying the 1978 contract's provision
calling for union representation to employees "At any
stage of the disciplinary procedure directed towards the
said employees, including the investigatory stage" I shall
recommend that GHR be required to rescind the modifi-
cation of that provision.
Having found that GHR refused to bargain in good
faith in violation of Section 8(a)(5) and (1) of the Act by
failing to provide the Union with information regarding
TCP Construction Co., Inc., and its relationship with
GHR as more fully set forth in the Union's letter of 30
January 1980, I shall recommend that GHR be required
to furnish that information to the Union upon request.
[Recommended Order omitted from publication.]