Glover Bottled Gas Corp , Vogel'S, Inc , New York Propane Corp , Synergy Gas Corp , Synergy Group, Inc

National Labor Relations Board - Board Decisions

Feb 8, 1989

292 N.L.R.B. 873 (N.L.R.B. 1989)

GLOVER BOTTLED GAS CORP
Glover Bottled Gas Corp , Vogel's, Inc , New York
Propane Corp , Synergy Gas Corp , Synergy
Group , Inc and Ralph Kendrick and Local 282,
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America,
AFL-CIO Cases 29-CA-11302, 29-CA-10641,
29-CA-10763-1, 29-CA-10763-2, 29-CA-
10795-1, 29-CA-10795-2, and 29-CA-12653
February 8, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFr
On August 26, 1987, Administrative Law Judge
Philip P McLeod issued the attached decision The
Respondent filed exceptions and a supporting brief
The General Counsel filed cross-exceptions and a
supporting brief The Respondent filed an answer-
ing brief in response to the cross-exceptions
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, cross-exceptions,
and briefs and has decided to affirm the judge's rul-
ings , findings,' and conclusions2 and to adopt the
recommended Order
The judge found , and we agree , that the Re-
spondent violated Section 8(a)(3) and (1) of the Act
by denying bereavement and vacation benefits to
returning strikers In adopting the judge's finding,
we have applied the principles articulated in
Texaco Inc, 285 NLRB 241 (1987), for the applica-
i The Respondent has excepted to some of the judge s credibility find
rags 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
2 Member Johansen agrees with the judge that the Respondent violated
Sec 8(a)(5) and (1) of the Act by instituting its polygraph policy before
the parties reached a good faith impasse over the issue However in so
doing he would not as did the judge characterize the Respondents po
sition on the matter as so inherently objectionable that it was necessarily
designed to frustrate the parties ever reaching agreement on the poly
graph issue See Member Johansen s dissent in Reichhold Chemicals 288
NLRB 69 (1988)
In agreeing with the judge that the allegation concerning the Respond
ent s withdrawal of recognition is not barred by Sec 10(b) of the Act we
rely on his fording that given the context in which Shientag the Re
spondent s attorney expressed his belief that the Union did not represent
the people in the place anymore his remarks did not rise to the level
of a withdrawal of recognition by the Respondent The Union therefore
lacked the clear notice required to start the running of the 10(b) limits
tion period We do not rely on the judges further observation that a
withdrawal of recognition at the time Shientag made the remarks would
have been unlawful since the question whether Sec 10(b) operates to bar
an allegation depends on whether the charging party had clear notice of
a possible violation more than 6 months before the filing of the charge
not on whether such a charge would or would not have merit
873
tion of the test as set forth in NLRB v Great Dane
Trailers, 388 U S 26 (1967) See also Johns-Manville
Sales Corp, 289 NLRB 358 (1988)
This test requires that the General Counsel make
a prima facie showing of some adverse effect of the
denial of benefits on employee rights The General
Counsel can meet this burden by showing that (1)
the benefit was accrued and (2) the benefit was
withheld on the apparent basis of a strike Once the
General Counsel makes a prima facie showing, the
burden, under Great Dane, shifts to the employer
to come forward with proof of legitimate and sub
stantial business justification for its denial of bene
fits The employer may meet this burden by prov
mg, inter alia , that it relied on a nondiscriminatory
contract interpretation that is reasonable and argu-
ably correct and thus sufficient to constitute a le
gitimate and substantial business justification for its
conduct If the employer proves business justifica
tion, the Board may nevertheless find a violation if
the employer's conduct is demonstrated to be "in
herently destructive" of employee rights or moti-
vated by antiunion intent
Applying these principles here, we find that the
General Counsel established a prima facie case
The benefits were accrued and the Respondent ad
mittedly withheld the benefits on the basis of a
strike Further, the Respondent has not met its
burden of showing that it denied the benefits based
on a legitimate and substantial business justification
We reject the Respondent's contention that the
most recently expired contract provided that an
employee must work continuously from April 1 to
March 31 to be eligible for vacation pay That in-
terpretation of the contract, essentially for the rea
sons set forth by the judge, is both unreasonable
and not arguably correct Accordingly, we adopt
the judge's finding that the Respondent's withhold-
ing of benefits violated Section 8(a)(3) and (1) of
the Act
Given our disposition of this issue, we find it un-
necessary to decide whether the Respondent's con-
duct was inherently destructive of employee rights
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Glover Bot
tled Gas Corp, Patchogue, New York, Synergy
Gas Corp, Deer Park, New York, Vogel's Inc,
Farmingdale, New York, New York Propane
Corp, Farmingdale, New York, and Synergy
Group, Inc, Farmingdale, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order
292 NLRB No 99
874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Elias Feuer Esq for the General Counsel
Daniel Shientag Esq, Farmingdale, New York, and
Arthur R Kaufman Esq (Kaufman Frank Schneider
& Rosensweig), of Melville, New York, for the Re
spondents
DECISION
STATEMENT OF THE CASE
PHILIP P MCLEOD, Administrative Law Judge I
heard these cases on 13, 14, 15, and 16 May and 3 and 4
June 1986, and 28 April 1987 in New York New York
The matter originated from a charge filed in Case 29-
CA-10641 on 5 August 1983 by Local 282, International
Brotherhood of Teamsters Chauffeurs, Warehousemen
and Helpers of America (the Union), against Glover Bot
tled Gas Corp and Synergy Group, Inc A complaint
and notice of hearing issued in that case on 30 September
1983 The charges in Cases 29-CA-10763-1 and 29-CA-
10763-2 were filed 6 October 1983 The charges in Cases
29-CA-10795-1 and 29-CA-10795-2 were filed 17 Octo
ber 1983 An order consolidating cases and complaint
and notice of hearing issued in those cases on 30 Novem
ber 1983 All the above referenced cases were then con
solidated for hearing by order dated 7 February 1984
The hearing in those cases was postponed indefinitely by
order dated 21 June 1984
The charge in Case 29-CA-11302 was filed by Ralph
Kendrick on 11 July 1984 A complaint and notice of
hearing issued in that case on 24 September 1984 The
hearing in that case was later postponed indefinitely by
order dated 10 April 1985 On 21 April 1986, all the out
standing cases were consolidated and set for hearing on
13 May 1986 The substantial delays that occurred
during the times these cases were postponed indefinitely
resulted from protracted litigation between the parties on
related issues before the Federal courts and later before
an arbitrator This litigation is described in greater detail
below
The charge in Case 29-CA-12653 was filed by the
Union on 26 September 1986 A complaint and notice of
hearing issued 7 November 1986 On 10 February 1987
the General Counsel moved to reopen the other cases
captioned above in which the hearing had already been
held and to consolidate them with Case 29-CA-12653
Respondent filed a statement opposing the motion to
reopen On 18 March 1987 I granted the motion of the
General Counsel and ordered that further hearing be
held, which was done on 28 April 1987
The parties stipulated that Glover Bottled Gas Corp,
Vogel s, Inc New York Propane Corp Synergy
Group Inc and Synergy Gas Corp (Respondent) are a
single, integrated enterprise and a single employer within
the meaning of the Act The consolidated complaints
allege numerous violations of Section 8(a)(1), (3), (4), and
(5) of the National Labor Relations (the Act) They
allege that at the conclusion of an economic strike by the
employees of Glover Bottled Gas Corp, some of the em
ployees were never reinstated to available positions be
cause work was transferred by Respondent between vari
ous companies of the single integrated enterprise and be
cause new employees were hired in order to avoid re
calling employees who had engaged in the strike The
complaints alleged that those employees who were rein
stated were not reinstated to positions that they held
prior to the strike, but rather were discrimmatonly rein
stated to less desirable positions The consolidated com
plaints further alleged that such employees were not ac
corded proper seniority and, as a result, were not as
signed as much overtime work as they would have been
assigned had their seniority rights been respected The
complaints alleged that Robert Bradley, who was em
ployed by Synergy Gas Corp was discnminatonly dis
charged for trying to organize those employees The
complaints alleged that Respondent violated Section
8(a)(5) of the Act by unilaterally changing the health
benefits of Glover's employees represented by the Union
and by unilaterally instituting a requirement that Glov
er s employees submit to a lie detector test on demand or
face discharge The complaints further alleged that
Glover s employees who went on strike were discnmina
tonly denied vacation pay for calendar year 1983 as ret
ribution for having engaged in the strike Finally the
complaints alleged that Respondent discnminatonly dis
charged employee Ralph Kendrick because he refused to
take the unilaterally imposed lie detector test and further
because of Kendrick s participation in a Board hearing
conducted on 11 July 1984
The complaint in Case 29-CA-12653 alleges that Re
spondent violated Section 8(a)(5) of the Act by not re
sponding to written requests from the Union on 9 April,
1 July and 8 August 1986 to meet and bargain with the
Union as the representative of employees at its Patcho
gue New York facility, including drivers platform men
and servicemen and by refusing to furnish the Union
with the names and addresses of Respondents employees
employed in these bargaining unit positions
In its answers to the various complaints, Respondent
admitted certain allegations including the filing and
serving of the charges the status of various entities as
employers within the meaning of the Act, the status of
the Union as a labor organization within the meaning of
the Act and the status of various individuals as supervi
sors and agents of Respondent within the meaning of
Section 2(11) of the Act Respondent denied having en
gaged in any conduct that would constitute an unfair
labor practice within the meaning of the Act
At the trial all parties were represented and afforded
full opportunity to be heard to examine and cross exam
me witnesses and to introduce evidence Following the
close of the trial, both parties filed timely briefs with me
which have been duly considered
On the entire record in this case and from my observa
tion of the witnesses, I make the following
FINDINGS OF FACT ANALYSIS, AND CONCLUSIONS
I JURISDICTION
Glover Bottled Gas Corp is a New York corporation
with its principal office and place of business in Patcho
gue, New York, where it is engaged in the sale and dis
tribution of propane gas and related products Synergy
Gas Corp is a New York corporation with an office and
GLOVER BOTTLED GAS CORP
principal place of business in Deer Park , New York,
where it , too, is engaged in the sale and distribution of
propane gas and related products Vogel s, Inc is a New
York corporation with its principal office and place of
business in Farmingdale , New York , where it is engaged
in the distribution of forklifts and other material handling
equipment New York Propane is a New York corpora
tion with its principal office and place of business in
Farmingdale , New York , where it is engaged in the
wholesale and retail fuel conversion of motor vehicles
Synergy Group , Inc is a New York corporation with its
principle office and place of business located in Farming
dale, New York It serves as the parent corporation of
Glover Bottled Gas Corp , Vogel s, Inc , New York Pro
pane Corp , and Synergy Gas Corp As indicated, the
parties have stipulated that these entities comprise a
single , integrated enterprise and a single employer within
the meaning of the Act During the past calendar year,
which period is representative of all times material these
entities have individually and collectively purchased and
caused to be transported and delivered to its New York
facilities propane gas and other goods and materials
valued in excess of $50 ,000, which were transported and
delivered in interstate commerce directly from States
other than New York Respondent admits that these enti
ties are engaged in interstate commerce within the mean
ing of the Act
Respondent is, and has been at all times material, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act
II LABOR ORGANIZATIONS
Local 282, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America is,
and has been at all times material , a labor organization
within the meaning of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A Background
Glover Bottled Gas Corp and the Union were parties
to two successive collective bargaining agreements from
1976 to 1979 and from 1979 to 1982 covering all drivers
platform men and servicemen employed at the Glover
facility in Patchogue New York The most recent col
lective bargaining agreement expired on 31 July 1982
Between 1 August 1982 and 2 February 1983, Glover
and the Union held several bargaining sessions but were
unable to reach the terms of a new agreement On 3 Feb
ruary 1983 Glover employees represented by the Union
commenced an economic strike Positions of the parties
remained far apart throughout negotiations In the most
recent agreement , the starting rate for new employees
was $3 75 per hour In contract negotiations, the Union
demanded a starting rate of $6 50 At the meeting on 2
February just prior to the commencement of the strike
the Union was still demanding a starting rate of $6 per
hour
At the beginning of negotiations , the Union demanded
a $3 per hour journeyman raise from $8 05 to $11 05 On
28 October the Union reduced its demand for an hourly
increase to $2 per hour, and on 2 February the Union
875
still demanded an hourly rate increase of $1 50 per hour
Throughout most of the negotiations , Glover offered an
hourly rate increase of 25 cents per hour in 1982, 12 1/2
cents per hour in 1983, and 12 1/2 cents per hour in
1984 The Union demanded an increase in employer pen
sion contributions from $1 51 per hour per employee to
$1 95 per hour per employee At the same time , Glover
demanded that employees be removed from the Union's
pension plan and instead be covered by a company
profit sharing plan Throughout negotiations Glover
proposed/demanded a contractual provision regarding
overtime , which provided Overtime assignments shall
be rotated among the employees equitably and without
regard to seniority ' The Union was unwilling to accept
such a provision , insisting that overtime be offered to
employees on the basis of seniority
In a final offer on 10 January 1983, Glover offered
substantially the same terms described above It offered
an immediate wage increase from $8 05 per hour to
$8 30 It offered wage rates during 1983 of $8 42 1/2 per
hour and during 1984 of $8 55 per hour The manage
ment rights clause contained in Glover s final offer was
extremely broad There is no indication , however, that
this clause played a major role in the parties being
unable to reach agreement Rather , the parties remained
far apart on other issues , which resulted in the manage
ment rights clause being of no particular significance
Respondents final offer was rejected by the Union, and
a strike began on 3 February 1983 When the strike
began, both parties suspended negotiations indefinitely
All but one of the unit employees participated in the
strike Only employee Joseph Schumpf continued to
work On 7 February 1983 Schumpf was granted a raise
from $8 per hour to $9 35 per hour , far in excess of what
Glover was offering the Union
While the strike was in progress , Glover hired 11 per
manent replacements , including Joseph DeFarlo , service
man and installer , Walter Denton , bulk driver Donald
Gonforone , installer , Phillip Karlin, yardman Lawrence
Krol, installer , Kevin McKeever , bulk driver Juan
Obelar, Jr, bulk driver Robert Pinto serviceman Phi
lippe Schutt mechanics helper Robert Vanhulsent bulk
driver and Charles Visser bulk driver and installer
By mailgram dated 15 April 1983 and received by
Glover on 18 April , the Union made an unconditional
offer to return to work on behalf of all striking employ
ees
B The Failure to Reinstate Strikers
Fifteen bargaining unit employees participated in the
strike which began on 3 February Respondent hired 11
permanent replacements between the beginning of the
strike and the Union s unconditional offer to return to
work Therefore , at the conclusion of the strike, four po
sitions were unfilled , which should have been made
available to strikers unless such work had become un
available
Respondent carries the burden of establishing that
work was unavailable Respondent , however does not
offer specific proof on this issue , and the available evi
dence tends to support the contrary conclusion , i e, that
876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
work was available to which employees could have been
assigned Employee Gary Estes testified that after he was
finally reinstated in July 1983, he observed a shoe box
full of orders that he estimated would take a person 8
to 9 months to complete Although I have the distinct
impression that Estes might be exaggerating somewhat
about the number of orders Branch Manager Bittner ad
mitted there was a backlog in pickup orders that had de
veloped as a result of the strike Both prior to and after
the Union s unconditional offer to return to work, em
ployees Ralph Kendrick, Estes, and Richard Dean ob
served two employees of New York Propane Alvaro
Avila and William Ruthig, performing pick ups and
bulk deliveries to customers of Glover Finally Kendrick
also observed drivers of Synergy performing bulk deliv
eves to Glover accounts for an extended period after the
Union s unconditional offer to return to work
Respondent counters the General Counsel s evidence
by noting that the operations of Synergy at Deer Park
and Glover at Patchogue were merged and that Re
spondent advised the Union of this fact by letter I note
however, it was not until 19 September 1983 that Re
spondent advised the Union of a decision to merge Syn
ergy and Glover Accordingly, I find that this merger
does not account for Respondents failure to reinstate the
employees when the Union offered to return to work 5
months earlier in April The record also contains more
specific evidence that Respondent failed to recall striking
employees when work was available Permanent replace
ment Philippe Schutt, a mechanics helper, terminated his
employment during the payroll period ending 25 June
1983 Schutt was not replaced Permanent replacement
Phillip Karlin, who worked as a yardman, terminated his
employment with Glover during the payroll period
ending 20 August Striker Richard Dean was reinstated
on 1 September 1983 and assigned yard work for an
proximately 1 month before being returned to normal
duties, which he had performed prior to the strike
During the week ending 3 September however employ
ee Alvaro Avila was permanently transferred from New
York Propane to Glover as a bulk driver the same post
tion held by Dean This position was not offered to
Dean nor to other striking employees who had worked
as bulk drivers prior to the strike Respondent argues
that because Avila was issued a W 2 Wage and Tax
Statement for 1983 from Glover showing wages of ap
proximately $25,000 that Avila must have been working
at Glover throughout the strike commencing on 3 Febru
ary I reject Respondents argument The payroll records
of New York Propane and Glover, which were intro
duced by the General Counsel show that Avila was ter
minated from the payroll of New York Propane and
transferred to the payroll of Glover during the week
ending 3 September What Respondent may have done
in terms of its yearend W 2 forms is of little significance,
particularly because of the fact that its own payroll
records clearly establish the transfer as contended by the
General Counsel
Robert Bradley was employed by Synergy Gas Corp
from July to September 1983 After being hired Bradley
was trained by Joseph Schumpf Bradley was trained to
replace Schumpf on the route that Schumpf had driven
for the preceding 2 years when he was on the Glover
payroll After the training was complete and from ap
proximately mid or late August until Bradley s discharge
in late September 1983, Bradley replaced Schumpf on
that route Respondent did not offer reinstatement to one
of the strikers
Anatin Rouzeau was a mechanic employed by Vogel s
Inc in Brooklyn, New York Payroll records for the
period ending 20 August 1983 reflect that Rouzeau was
terminated from the Vogel payroll Payroll records of
Glover show that from the payroll period ending 17 Sep
tember 1983 until late December 1983 or early January
1984 Rouzeau was transferred and worked at Glover
His name appears on the Glover payroll throughout that
period During the payroll period ending 7 January 1984,
Rouzeau was returned to the payroll of Vogel In its
posttnal brief Respondent admits that Rouzeau was
lent temporarily to Glover Nevertheless, Respondent
notes that Rouzeau s W 2 form for 1983 shows no wages
from Glover Respondent does not explain this discrep
ancy and I find it unnecessary to resolve Payroll
records of both Vogel and Glover clearly establish that
Rouzeau was in fact terminated from the one payroll and
transferred to the other for a period of months during
late 1983 Respondent did not offer reemployment to any
of the striking employees
By letter dated 19 September 1983, Respondent ad
vised the Union that a decision had been made to merge
the operations of Synergy at Deer Park and those of
Glover at Patchogue This letter notified the Union that
The operation of Synergy Gas Corporation will be
transferred to Patchogue and pending completion of the
corporate re organization that operation and the oper
ation of Glover will be run on a parallel basis The
letter concluded by inviting the Union to conduct fur
ther negotiations based upon the effects of this decision
or relative to the entire body of the negotiations hereto
fore had and presently pending The Union did not re
quest negotiations or otherwise respond to this letter
By letters dated 30 September 1983 Glover wrote to
the striking employees individually stating that Glover
was trying to update records concerning the availability
of employees who went out on strike The letter asked
employees to complete an enclosed questionnaire and
return it to Respondent The enclosed questionnaire
asked employees to check whether they had obtained
other employment and would not return to work at
Glover or whether they would return to work at Glover
if a job became available The form also asked employees
to correct their mailing address if necessary and to pro
vide their telephone number By letters dated 14 Decem
ber 1983 Respondent again wrote to some of the em
ployees who had gone out on strike This letter stated
that Respondent had received no reply to its first letter
and enclosed another copy of the questionnaire described
above The letter of 14 December concluded by stating
If we receive no reply to this letter, we will assume
that you are not interested in returning to work at
Glover Bottled Gas Corp Employees Robert Zak, Ray
mond Frey, and Nicholas Kahn all replied to Respond
ent s letters by indicating they would return to work at
GLOVER BOTTLED GAS CORP
Glover if jobs became available Joseph Leone and
Robert Cabral responded indicating that they had ob
tained other employment and would not return to work
at Glover Employees David Wahlfeld William Jones,
and Stanley Wnenta received copies of at least one of
Respondents two letters, as is reflected by certified mail,
return receipts None of them replied to Respondent s
letters Although a copy of Respondents letters was ad
dressed to employee John Pickford, it is not known
whether he received either copy, for there is no return
receipt offered by Respondent
As already described above, New York Propane em
ployee William Ruthig was observed by Kendrick, Estes,
and Dean performing bargaining unit work, including
pick ups' and bulk deliveries to customers of Glover
Bottled Gas both prior to, and subsequent to, the Union's
unconditional offer to return to work On 9 January
1984, Ruthig was granted a small wage increase On the
form in Ruthig s personnel file granting the raise, the
reason for the increase was described as driver/yard
man/works at Glover when needed' I therefore find
Ruthig was continuing to perform bargaining unit work
at Glover as late as January 1984 Payroll records of
New York Propane introduced by the General Counsel
reflect that Ruthig worked considerably more overtime
than other employees on the New York Propane payroll
The General Counsel argues that, taken in conjunction
with the notation on Ruthig s pay raise, it is reasonable
to infer that the excess overtime performed by Ruthig
represented work performed at Glover Respondent
argues conversely that it is impossible to determine from
looking at a payroll whether Ruthig worked at New
York Propane or at Glover Respondent doubts that it
would be possible to make this determination even from
one of its timecards I find it significant, as did Respond
ent, that Ruthig worked a sufficient amount at Glover to
warrant that notation as the reason for giving Ruthig a
pay raise The General Counsels argument concerning
the appropriate inference to be drawn from the amount
of overtime credited him at New York Propane is a rea
sonable one just as it was reasonable for Respondent to
note Ruthig s help in granting him the pay raise
In summary Respondent has offered no substantial
business justification for not recalling strikers to the four
available positions in April 1983 Available evidence es
tablishes that employees of New York Propane, includ
ing Alvaro Avila and William Ruthig, were used to per
form bargaining unit work at Glover In addition van
ous positions became available at Glover, which Re
spondent could have and should have filled by strikers
One position of mechanics helper became available in
June when permanent replacement Schutt was terminat
ed Another position of yardman became available in
August when permanent replacement Karlin was termi
nated Two other positions were available in August and
September 1983 when Bradley was assigned bargaining
unit work of Schumpf and when Avila was transferred
to the Glover payroll rather than rehire a striker Yet an
other position became available in September when Rou
zeau was transferred from the Vogel payroll to that of
Glover After January 1984, Respondent relied less on
transferring employees from sister companies into the
877
bargaining unit and began instead to hire new employees
to replace permanent employees who left Permanent re
placements Kevin McKeever and Walter Denton both
terminated their employment with Glover Branch Man
ager Donald Bittner testified that McKeever and Denton
were replaced by new hires Steven Hains and Michael
Higgins In addition Respondent hired John Stout as a
bulk driver and Jose Lopez as a combination installer
and bulk driver
The evidence establishes that in addition to the four
unfilled positions that Respondent should have been able
to offer to strikers as soon as they made their uncondi
tional offer to return to work at least nine other posi
tions described above became available that Respondent
failed to offer to strikers By failing to offer available po
sitions to strikers, by using employees of sister companies
to perform bargaining unit work in order to avoid recall
ing strikers and by hiring new employees without offer
ing those positions to strikers Respondent violated Sec
tion 8(a)(1) and (3) of the Act NLRB v Fleetwood Trail
er Co 389 US 735 (1967) Laidlaw Corp, 171 NLRB
1366 (1968) enfd 414 F 2d 99 (7th Cir 1969), cert
denied 397 U S 920 (1970) Pepe s Inwood Packing Co
206 NLRB (1973) Harvey Engineering Corp, 270 NLRB
1290 (1984)
Respondents unlawful discrimination adversely affect
ed a group or class comprised of all striking employees
The record does not reflect the relative seniority of all
strikers and it is therefore not possible at this time to de
termine with certainty which strikers should have been
recalled to specific vacancies I shall therefore leave that
determination to the compliance stage of this proceeding
I find, however, that Respondents 30 September and 14
December letters to employees, as well as the responses
or nonresponses to those letters, do not in any way serve
to remove any individual from the class of employees
discriminated against Respondents course of discrimina
tion began on 18 April when Respondent received the
Union s unconditional offer to return to work, and Re
spondent s letters to employees more than 5 months later
cannot serve to terminate that course of unlawful con
duct nor deprive any employee of their rights under the
Act
C The Reinstatement of Estes and Dean
Estes was reinstated on 29 July 1983 Dean was rein
stated on 1 September 1983
When Estes was recalled to work he was notified by
Management Representative Joel Garey that he would
be returning to a nonunion shop that he would be
stripped of his seniority rights, and that he would not re
ceive any vacation during calendar year 1983 When
Estes and Dean were recalled, each of them was as
signed for a period of approximately 3 weeks to 1 month
to perform yard work Yard work as the name implies,
is the least skilled maintenance work on and around Re
spondent s premises The record shows that this work is
traditionally assigned to newly hired employees Dean
testified without contradiction that he had not been as
signed yard work since the first month he was hired in
1967
878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent notes correctly that Estes license to drive
had been revoked Respondent argues that Estes could
hardly have been expected to work as a driver and that
yardman was the only position left open Respondent
however, admits that after approximately 3 weeks Estes
was assigned to work with another driver on installa
tions Respondent offers no evidence that installation
work was not available as soon as Estes was reinstated
Indeed, as I have found above the available evidence
points instead to the conclusion that work was available
not only for Estes and Dean but for two other strikers as
soon as the Union made its unconditional offer to return
to work Respondent has shown no justification what
ever for treating Estes and Dean as new employees and
making them perform yardwork for the first month after
being brought back Particularly in view of Estes con
versation with Management Representative Joel Garey,
in which Garey told Estes that he would be stripped of
seniority rights, I am convinced that Respondent was
purposely attempting to humble Estes and Dean by treat
ing them as new employees and making them perform
yard work for a month before reassigning them to
normal duties By doing so, Respondent discriminated
against Estes and Dean in violation of Section 8(a)(1)
and (3) of the Act
D Assignment of Overtime
Estes testified that when he returned to work on 29
July, he discussed working conditions with Service Man
ager Donald Bittner According to Estes, Bittner stated
that in accordance with the instructions of Respondent s
counsel Shientag, Estes would no longer receive over
time Estes had earned approximately 10 to 15 hours of
overtime per week prior to the strike when overtime was
assigned on the basis of seniority Portions of Estes testi
mony were quite believable while other portions were
not Estes exhibited significant hostility toward Respond
ent on cross examination and I was left with the distinct
impression that he was able and willing to exaggerate
when he thought it might be helpful to the Union s case
I do not credit Estes that Bittner told him he would no
longer receive overtime The record reflects that, in fact,
Estes began receiving overtime the very first week after
he was reinstated What I believe actually happened is
Bittner told Estes that overtime would no longer be as
signed on the basis of seniority
In Respondent's proposals to the Union throughout ne
gotiations, Respondent demanded a contractual provision
regarding overtime, which provided `Overtime assign
ments shall be rotated among the employees equitably
and without regard to seniority In his posttnal brief
the General Counsel argues that Respondent never
made a proposal during negotiations that the manner of
assigning overtime be changed" from what it had been
prior to the strike I am at a loss to understand the Gen
eral Counsel s argument unless he simply overlooked the
contractual provision regarding overtime Nevertheless,
Respondent's position was clear throughout negotiations
and was contained in its final offer to the Union in Janu
ary When the Union commenced its strike in February
1983, the parties were far apart on the most important
substantive issues After the strike started in February,
negotiations were suspended indefinitely and neither
party requested to meet with the other until late October
1983 Contrary to the argument of the General Counsel
I find that at the time the strike started, the parties had
indeed reached impasse on the terms of a new collective
bargaining agreement Regarding all these circumstances,
the fact that the Union was willing to make further con
cessions is of little real significance The willingness to
make concessions standing alone is not sufficient to
negate an impasse The Union began bargaining with
such high demands that if such were the case, it could
continue to make concessions and thereby frustrate im
passe ad nauseam The parties were so far apart and so
far from reaching a substantive agreement that the dis
parity between their respective positions at the time the
strike started can only be described as an impasse
As the General Counsel points out, Estes did not re
ceive an average of more than 10 hours of overtime
work per week until the payroll period ending 26 No
vember 1983 Even after 26 November, Estes did not av
erage 15 overtime hours per week Dean did not receive
more than 10 hours of overtime in any 2 week pay
period until he had been back to work approximately 3
months Avila, Denton, and Vanhulsent, all less expen
enced drivers, worked more overtime than Dean through
the payroll period of 24 June 1984 Nevertheless, Estes
and Dean were assigned overtime work beginning with
the very first week of their respective reinstatements
They continued to work substantial overtime hours
thereafter In calendar year 1982, Estes received gross
wages of approximately $22,000, while Dean received
gross wages of approximately $20 000 After Estes was
reinstated, he earned wages of approximately $11,000 in
the remaining 5 months of calendar year 1983 After
Dean was reinstated, he received gross wages of approxi
mately $8500 in the remaining 4 months of calendar year
1983 Estes gross wages for calendar year 1984 were ap
proximately $23,000, while Dean s were approximately
$22 000 Estes wages exceeded every member of the bar
gaining unit except Avila Dean exceeded every member
of the bargaining unit except Avila and McKeever
McKeever s wages for the year exceeded Dean s by only
$11
In summary, the evidence reflects that almost immedi
ately after Estes and Dean were reinstated, they began to
receive overtime assignments Throughout the remainder
of calendar year 1983, the amount of overtime assigned
Estes and Dean was less than some employees, but more
than others It must be concluded that the amount of
overtime work assigned Estes and Dean since their rein
statements has been in general conformity with Respond
ent's contractual proposal that overtime work be as
signed equitably and without regard to seniority There
is no evidence of any discriminatory intent on Respond
ent s part in the assignment of overtime work since the
reinstatement of Estes and Dean Accordingly I shall
dismiss the allegation of the complaint that Estes and
Dean were assigned overtime work in a discriminatory
manner
GLOVER BOTTLED GAS CORP
E The Discharge of Bradley
In April 1983 when the Union made its unconditional
offer to return to work on behalf of Glover employees
and no one was immediately reinstated, employees at
Glover continued to picket that facility for some time
Picketing gradually diminished and eventually ceased al
together By September, only Estes and Dean had been
reinstated at Glover In mid September, Respondent no
tified the Union of its intention to merge the operations
of Synergy at Deer Park and those of Glover at Patcho
gue On 16 September 1983, Synergy employees James
Flanagan , Robert Bradley, Gregory Garland, and Nor
bert Jones signed authorization cards on behalf of the
Union Bradley solicited cards from Garland and at least
one other employee
During August and September 1983 Bradley was as
signed to drive the route that had previously been han
dled by Glover employee Joseph Schumpf On 19 Sep
tember, Bradley and bulk driver Franklin were directed
by dispatcher/Office Manager Denise Nichols to begin
parking their trucks at night at a new location in Patcho
gue, approximately 20 miles from Deer Park Although it
was standard procedure for drivers to leave the keys in
the trucks overnight on 19 September, Bradley and
Franklin took their truck keys home with them, at Nich
of s direction
On the following morning, 20 September, Bradley tele
phoned Respondent and left the message with its answer
ing service that he was sick and would not be coming to
work On learning that the keys to Bradley s truck were
not available, Respondent telephoned Bradley and asked
Bradley to bring the keys to the office Bradley, who
lives about a mile and a half from Respondents office,
declined, saying that he was too sick to do so Bradley
told Respondent that if Respondent sent someone to his
house to get the keys, Bradley would meet them at the
door Although Respondent was apparently unable to
find a second set of keys for the truck, it did not send
anyone to Bradley s house Instead Respondent had an
other employee change ignition switches on the truck
Employee Flanagan testified that he changed ignition
switches on Respondents trucks in the past and that this
job takes about 15 minutes and costs approximately $10
I found Flanagan credible
About 9 am that same day Joseph Schumpf who
was then on extended sick leave recouperating from a
heart attack, drove to Synergy's bulk plant in Deer Park
As Schumpf approached the facility he observed Brad
ley standing in the street near the entrance talking to em
ployee Ralph Kendrick Kendrick was one of Respond
ent's most active union supporters During the strike,
Kendrick regularly picketed Respondents premises and
frequently directed verbal harassment at Schumpf, the
only strike breaker Kendrick and other union members
sometimes followed Schumpf on his daily route to
engage in ambulatory picketing When Schumpf saw
Bradley talking to Kendrick Schumpf drove to the Syn
ergy Deer Park office and informed Respondent that he
had seen Bradley talking to Kendrick
Bradley denies that he ever went to any of Respond
ent s facilities on the morning in question Bradley testi
fled that he was sick and that he remained at home that
879
entire morning Nevertheless Bradley s affidavit, given
to an agent of the Board during the initial investigation
of this case, contains no reference to him being sick
Employee Flanagan, who was called as a witness by
the General Counsel, testified that he was present in the
Deer Park office on the morning in question when
Schumpf entered Flanagan heard Schumpf tell Office
Manager Dempsey that he had just seen Bradley talking
to Kendrick According to Flanagan, Schumpf was
really nervous and jumpy " Schumpf told Dempsey,
'We got to get rid of him now That's not right
that he should be doing that [talking to Kendrick]
Schumpf then informed Edward Williams, who was in
charge of the service operation, that he had seen Bradley
talking to Kendrick After Schumpf spoke to Williams,
Williams telephoned Respondents corporate headquar
ters in Farmingdale where he spoke to a Mr Russel, vice
president in charge of service According to Williams, I
explained the whole situation, what had happened, he
said okay, he d handle it from there " That's the end of
my conversation or doings with it Schumpf then went
to Respondent's corporate headquarters and met with
John Vogel, Respondent's executive vice president
Schumpf told Vogel what he had observed and admits
adding that he `believed there would be trouble with
this man being that he is now collaborating with the
Union Schumpf testified that Vogel did not say any
thing in response to Schumpf's suggestion that Bradley
be fired
Later that same day, Russel telephoned Plant Manager
Donald Bittner and directed him to discharge Bradley
Bittner testified candidly about his conversation with
Russel and his later conversation with Bradley Bittner
testified that when Russel first called, he asked if Bradley
was a probationary employee Bittner said that Bradley
was Bittner testified that Russel then stated He [Brad
ley] did not bring keys in because he was ill but yet he
was seen in front of one of our plants and we're dismiss
mg him, I want you to dismiss him for lying
Bittner telephoned Bradley that afternoon to inform
Bradley that he was being discharged According to
Bradley he asked Bittner wh} he was being fired
Bittner allegedly replied that it was because Bradley had
keys to the truck According to Bradley, he then ex
plained why he had the keys Bittner replied that it did
not make any difference that Respondent had to have a
person put a new ignition in the truck According to
Bradley Bittner also said Bradley was being fired be
cause he did not come in to work that day Bradley al
legedly explained that he was sick According to Brad
ley, Bittner then stated again that it did not make any
difference, that Bradley was terminated and that was the
way it was
On direct examination the General Counsel did not
ask Bradley whether he had lied to Respondent about
being sick In fact I had the distinct impression that that
subject was studiously avoided On cross examination
Bradley claimed that he was sick and in fact had not
gone to Respondents premises I do not credit Bradley
Further, I find Bittner s version of the conversation with
Bradley when Bradley was discharged to be more
880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
straightforward and reliable Bittner testified simply that
he was told by Russel to dismiss Bradley for lying and
that 's what I told him Mr Bradley, you re being dis
missed for lying "'
The General Counsel presented evidence that some
time prior to 20 September , employee Franklin had taken
truck keys home with him and had failed to report to
work the next day As a result , employee Flanagan had
to replace the ignition switch in Franklin 's truck The
General Counsel notes that no discipline was taken
against Franklin and argues that this is evidence of dis
parate and discriminatory treatment of Bradley I find
this argument unconvincing , however, because I believe
it attempts to blur the real reason for Bradley s dis
charge There is no question that Respondent learned of
Bradley 's union association through employee Schumpf
The General Counsel has even presented some limited
evidence of animus What the General Counsel has failed
to show , however, is that Bradley s discharge was dis
parate or discriminatory Bradley was not discharged
simply because he had taken home keys to one of Re
spondent s trucks Rather , he had taken them home,
called in sick the following day, and refused to bring the
keys to Respondents premises because he claimed to be
too sick to do so Whether Bradley was sick or not he
refused to bring in the truck keys because he was sup
posedly too sick to do so Nevertheless , he was seen a
short time later in front of one of Respondents facilities
Bradley lied to Respondent , if not about being sick, then
most certainly about being too sick to bring in the truck
keys to Respondent The General Counsel has presented
no evidence that any other employee has been allowed
to lie in such a manner to Respondent without incident
In short , the General Counsel has failed to carry its
burden of establishing that Bradley was accorded dispar
ate treatment Even if I were to infer such a conclusion,
I would nevertheless find that Bradley would have been
discharged under these circumstances without regard to
his union activity I agree with Respondent that for some
ulterior motive of his own, Bradley was simply trying to
deprive Respondent of the use of one of its bulk delivery
trucks I am convinced that Respondent would not have
tolerated such conduct under any circumstances I find
that Bradley was discharged for cause and I shall dis
miss the allegation in the complaint that he was dis
charged in violation of Section 8(a)(1) and (3) of the Act
F The Unilateral Change in Health Benefits
At the last bargaining session between the parties
before the strike began , Respondent 's final offer included
the prior contract 's health benefit plan When the strike
started on 3 February the parties indefinitely postponed
further negotiations By the time the Union made its un
conditional offer to return to work on 15 April, Re
spondent had hired permanent replacements for 11 of 15
positions left vacant by the strike Eight months after the
strike started by letter dated 10 October 1983 Respond
ent amended its last offer The welfare and pension pro
vision of Respondent's final offer was amended to pro
vide that Respondent would agree to cover employees as
participants in a company sponsored profit sharing plan
The health benefits section of Respondents final offer
was amended to provide that Respondent would agree to
cover employees in a company sponsored employee
health benefits plan The letter ended by stating that
unless Respondent was advised that the Union wished to
negotiate further , it was Respondent 's intention to take
the necessary action to cover employees in the bargain
ing unit on 17 October Respondent stated Such action
if taken , will be effective for the plan year commencing
April 1, 1983
The Union did request negotiations in response to Re
spondent s letter , and the parties met twice during Octo
ber 1983 to discuss this matter Discussions were limited
to Respondent 's proposal to cover employees by its own
health benefits plan There was no objection by the
Union and no discussion concerning the inclusion of em
ployees in Respondents profit sharing plan
The first meeting to discuss health benefits was held at
the University Club at Hofstra University At this meet
ing, Respondent discussed with the Union a two page
document summarizing the benefits that would be pro
vided to employees This document reflects the various
coverages , deductibles , and coinsurance factors There is
no indication that the Union objected to, or proposed al
ternatives to, Respondent 's substantive coverage At the
first meeting , however , the Union did request figures
concerning the cost of the proposed plan to Respondent
A second meeting was held between the parties on 20
October 1983 at the Howard Johnson s restaurant in Sun
nyside , Queens Kendrick testified that at the second
meeting , Respondent continued to fail to provide cost
figures Respondent 's counsel , Shientag , also testified
concerning that meeting Shientag testified that at this
second meeting he orally provided the cost information
concerning the new plan I credit Shientag As the Gen
eral Counsel notes Shientag admits that he did not pro
vide the costs of the then current plan to the Union at
this second meeting There is no indication , however,
that the Union ever specifically requested Respondent to
provide it with the cost of the current plan Nor was
there any particular reason for the Union to do so be
cause that information was already available to both it
and Respondent
The General Counsel concedes that at this second
meeting the Union refused to agree to Respondents pro
posal concerning health benefits Kendrick described the
conclusion of the meeting as follows It didn t end on a
happy note It warn t really like a negotiation it
was this is what I'm going to do, take it or leave it '
Shientag , however , paints a much different picture of the
parties final positions As I have noted , Shientag testified
that at the meeting on 20 October he verbally provided
the Union with the requested cost information I credit
Shientag According to Shientag , Respondents position
at the meeting of 20 October was that the Company was
willing to consider any plan the Union might come up
with for which the cost would be less than the one then
in effect Shientag asked the Union if they had anything
like that to propose , and the Union replied no Accord
ing to Shientag , the meeting ended by the Union stating
that it objected to Respondent instituting its proposal
Shientag replied that because the Union had not come up
GLOVER BOTTLED GAS CORP
with anything better, Respondent intended to institute its
proposal immediately The meeting then ended I found
Shientag 's testimony about this meeting to be candid, and
I credit Shientag Following the meeting , Respondent
implemented its proposal regarding both the profit shar
ing plan and the employee health benefits plan
The General Counsel contends that Respondent imple
mented the health benefits plan unilaterally The General
Counsel argues that implementation was unlawful be
cause the parties had not reached a genuine impasse
since Respondent refused to provide requested informa
tion concerning the cost of the plan I credit Shientag,
however , that he provided the requested information
orally at the meeting on 20 October When the Union
struck on 3 February , the parties were at an impasse con
ceming the terms of a new collective bargaining agree
ment There is no indication that when Respondent
amended its final offer in October 1983 regarding the
employee health benefits plan that it did so in bad faith
or to otherwise frustrate an agreement The General
Counsel apparently concedes that it was not per se un
lawful for Respondent to amend its substantive contract
proposals During October 1983 the parties held two bar
gaining sessions at which the only subject of discussion
was Respondents amended health benefits proposal
During the second meeting Respondent offered to con
sider any alternative plan the Union might wish to pro
pose that would lower the cost of health benefits to Re
spondent The Union stated that it had no proposal to
make , but that it objected to Respondents proposed
plan Under the circumstances , including the fact that the
Union did not have any proposal to make to Respondent,
I find that the parties had in fact reached impasse Ac
cordingly , I find that Respondent's implementation of its
proposal was not unlawful , and I shall dismiss that alle
gation of the complaint
G Vacation Pay
Employees Estes and Dean were reinstated on 29 July
and 1 September 1983, respectively Employee Harry
Serres was recalled during the payroll period ending 29
October 1983 During November 1983 Serres was
forced to take 2 days off from work because of his fa
ther 's death Although the expired collective bargaining
agreement provided for bereavement pay, and although
Respondent never proposed to change that portion of the
contract, Respondent never paid Serres for the 2 days of
bereavement pay
After Estes Dean, and finally Series were reinstated,
Respondent also failed to pay them vacation pay for cal
endar year 1983 which was provided for in the expired
collective bargaining agreement
The expired collective bargaining agreement contained
a lengthy section comprised of 11 subsections dealing ex
clusively with vacations These subsections relate to
posting of vacation schedules, vacation periods, and split
ting of vacations One subsection provides, The pay for
vacations shall be made in advance and shall be based on
the classifications of work performed for the major por
tion of the yearly vacation qualifying period Another
subsection provides, The qualifying period for vacations
shall be April 1 to March 31, of each year
881
Respondent admits that it has refused to pay Estes,
Dean, Series, and other reinstated strikers any vacation
pay for calendar year 1983 Simply stated , Respondents
defense is that employees were on strike on March 31 in
stead of working, and are therefore not entitled to vaca
tion pay According to Respondent , the interpretation to
be given the most recently expired contract is that an
employee must work continuously from April 1 to
March 31 to be eligible to receive vacation pay Re
spondent contends that employees on strike on March 31
were not on Respondents payroll and thereby voluntan
ly waived or lost their eligibility to receive vacation pay
At the trial, Respondents counsel stated
Unfortunately, these gentlemen went on strike-un
fortunately for them from our point of view, on
February 3, 1983 and remained on strike until-the
middle of April 1983 and therefore were not enti
tled to any vacation during 1983
Employee Ralph Kendrick testified credibly and with
out contradiction that while employed by Respondent he
had occasion 1 year to miss approximately 7 consecutive
weeks of work due to illness, but that he nevertheless re
ceived full vacation pay Kendrick and other employees
all testified that they knew of no policy penalizing em
ployees for missing various periods of work during the
` qualifying period" provided in the contract In response
to this testimony , Respondent 's counsel stated at the
trial
The thing that is important is the existence of the
person as an active employee When I say "active,"
I mean one who is there and ready, willing and able
to work, if in fact he s prevented from working by
the fact that he has a running nose on March 31st
or a broken hand, would not-we would not be
taking the position that he would be disqualified,
but if he is voluntarily absent from work without an
excuse for it we would take the position that he is
disqualified from earning his vacation and then that
would also assume that he had a year s service or
more of continuous service during-occurring
during the preceding year
The evidence on this issue leaves no room for doubt
that Respondent purposely denied striking employees va
cation pay to penalize them for having exercised Section
7 rights by engaging in a strike There is nothing in the
most recently expired collective bargaining agreement
that specifies 31 March as a magic date for determining
an employees eligibility for vacation pay The qualifying
period is a 12 month year from 1 April to 31 March One
of the most simple and straightforward principles of the
Act is that striking employees nevertheless remain em
ployees and for Respondent to argue that striking em
ployees are not on its payroll is to equate them with dis
charged or otherwise terminated employees To deny
sinkers benefits that Respondent would make available
to other employees not actively working such as em
ployees on sick leave is necessarily to discriminate
against them for having engaged in activity protected by
882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Act and is inherently destructive of Section 7 rights
of employees. Accordingly, I find that by unilaterally
and discriminatorily withholding bereavement pay and
vacation pay from strikers, Respondent has unlawfully
discriminated against them in violation of Section 8(a)(1)
and (3) of the Act and has unilaterally abrogated the
terms and conditions of their employment in violation of
Section 8(a)(1) and (5) of the Act. Electro Vector, Inc.,
220 NLRB 445 (1975); Cutten Supermarket, 220 NLRB
507, 510 (1975).
H. The Discharge of Ralph Kendrick
In July 1982, about 2 weeks before the expiration of
the most recent collective-bargaining agreement between
the parties, a theft of cash and checks occurred at Re-
spondent's Glover facility. Five employees were request-
ed by Respondent to take a polygraph examination con-
cerning the theft. Two employees did so. Three did not.
The three who did not, Ralph Kendrick, William
Kampe, and Walter Brackett, were discharged. Thereaf-
ter, protracted litigation ensued concerning the arbitrabi-
lity of the discharges and the power of an arbitrator to
award reinstatement for a period of time subsequent to
the expiration of the collective-bargaining agreement. Ul-
timately, the court of appeals held that because the theft
had occurred prior to the expiration date of the collec-
tive-bargaining agreement , the discharges that occurred
subsequent to the expiration of the agreement were nev-
ertheless arbitrable and that reinstatement, if appropriate,
could be awarded for a period of time subsequent to the
expiration of the agreement.
Respondent and the Union then arbitrated the matter
of the discharges themselves. The arbitrator found that
requiring Kendrick, Kampe, and Brackett to take a poly-
graph test administered by police violated their constitu-
tional rights and that their discharges for refusing to take
such a test were improper. The arbitrator ordered that
Kendrick, Kampe, and Brackett be reinstated. The court
of appeals refused to disturb the arbitrator's award.
Throughout all the negotiating sessions that preceded
the strike in February 1983, the Union demanded a con-
tractual provision that no employee would be required to
take any form of polygraph test as a condition of em-
ployment. Respondent uniformally rejected that demand.
Respondent took the position that it would require such
tests if and when it desired to do so.
On 4 June 1984, Respondent reinstated Kendrick pur-
suant to the arbitrator's award.
By letter dated 6 June 1984, Respondent wrote to the
Union:
Please be advised that, unless we are advised by
you prior thereto that you wish to negotiate on the
matter, Synergy Gas Corporation (formerly known
as Glover Bottled Gas Corp.) will, effective June
18, 1984, adopt the following policy.
Any employee shall, upon request of his superior
or any manager or officer of the company,
submit to a polygraph examination (i.e. lie detec-
tor) test with reference to the employee's use,
misuse , handling , mishandling, embezzlement,
misappropriation or other misconduct or conduct
concerning the company's money, property or
equipment. The failure or refusal of the employee
to submit to such test as and when requested
shall result in an immediate discharge.
Please be advised further that the foregoing
policy will be incorporated into the terms of any
collective bargaining agreement which the company
may negotiate and if such agreement contains a pro-
vision for arbitration of grievances, the following
provisions will be added to the appropriate sections,
to wit:
A discharge for failure to submit to a polygraph
test as required hereunder or based upon the re-
sults thereof shall not be subject to arbitration.
The Union requested to negotiate with Respondent
about the matter of polygraph examinations , and a meet-
ing was arranged for 27 June. On 19 June Plant Manager
Bittner informed Kendrick that he was being scheduled
to take a polygraph examination . Kendrick advised
Bittner that he would not provide an answer whether he
would take the polygraph examination until after the
meeting between Respondent and the Union scheduled
for 27 June.
A meeting between Respondent and the Union was
held on 27 June as scheduled. The issue of polygraph
tests was the only issue discussed at this meeting. Re-
spondent's position remained fixed throughout this meet-
ing. Respondent insisted that its policy as stated in the
letter of 6 June be implemented, and that it would agree
to no other alternative. Respondent concedes that at this
meeting, the Union made a number of proposals regard-
ing the administration of such a test, including the sub-
mission of questions by the Union, presence of counsel,
and arbitration of discharges resulting from the test. The
Union, in fact, offered to agree to the administration of
such tests if certain issues arising thereunder and the re-
sults of the test were arbitrable. As Respondent concedes
in its posttrial brief: "The Company refused to permit
any form of participation in the administration of the test
or to accede to any arbitration regarding discharges aris-
ing out of the tests or refusal to take the test, other than
to permit the Union to suggest the names of testing agen-
cies for consideration by the Company without any obli-
gation to employ them." Respondent then announced
that it intended to implement its polygraph policy the
following day, and the meeting ended. After the meeting,
the Union suggested to Kendrick that he prepare and
carry with him a written response declining to take a
polygraph examination so that when Respondent made
such a demand of Kendrick, his reply would be ready.
A hearing before the Board involving these same par-
ties was scheduled to be held in Cases 29-RC-6037 and
29-UC-240 on 11 July 1984. In late June, the Union's
counsel told Kendrick about the scheduled hearing and
asked Kendrick if he would be willing to attend. On 28
June, Kendrick told Bittner that he would be absent
from work on 11 July because of the hearing, and Ken-
drick wrote a note on Bittner's calandar that he would
miss work that day. At the time, Bittner simply said
okay.
GLOVER BOTTLED GAS CORP 883
On 10 July, Bittner approached Kendrick about Ken
duck missing work the next day Bittner told Kendrick
that John Vogel had stated he wanted Kendrick to come
to work on 11 July and that unless Kendrick had a sub
poena to appear at the Board hearing on 11 July Ken
dnck would be suspended for the rest of the week with
out pay if he should miss work Kendrick told Bittner
that he did not have a subpoena at the time, that there
might be one waiting for him at home in the mailbox,
but that subpoena or no subpoena, he was going to be at
the Board hearing the following day Bittner telephoned
Vogel While Bittner spoke to Vogel Bittner turned to
Kendrick and asked, John Vogel wants to know if you
enjoy working for this company?' Kendrick replied that
he loved working for Respondent and that is why he re
turned to work when he was offered reinstatement
Bittner repeated Kendrick's reply to Vogel Bittner then
asked Kendrick, Then John wants to know why you
insist upon going to the Board? Kendrick responded
that he also loved his Union and if they wanted him to
go to the Board hearing that s where he was going to
be Bittner repeated this to Vogel, then listened for a few
moments, and hung up Bittner then told Kendrick, You
have a way of getting this guy crazy
A few moments later, while Kendrick was still talking
to Bittner, Bittner received another call from Vogel
Bittner then told Kendrick John wants you to go to
this executive security consultant company on Thursday
(July 12) and take a polygraph test Kendrick replied
that was a silly suggestion because Kendrick was going
to be at the Board hearing on I 1 July and he had already
been told he would be suspended for the rest of the
week Kendrick stated he did not think Respondent
could tell him what he had to do while he was suspend
ed Bittner replied, Well, I in just passing the informs
tion along Kendrick then gave Bittner the reply, which
he had prepared earlier, declining to take the polygraph
test Bittner then made a phone call, read Kendrick s
reply over the phone and hung up A few moments
later, the telephone rang Bittner answered it by saying,
`Hello, Mr Shientag " Bittner then began writing some
thing on a small piece of paper which ultimately turned
out to be Kendrick s discharge slip This states
By reason of your written refusal dated 7-10-84 to
take the polygraph test scheduled for July 12 1984
as instructed, you are hereby discharged
The General Counsel contends that Respondent acted
unlawfully by unilaterally instituting its polygraph policy
and by discharging Kendrick pursuant to such an unlaw
fully instituted policy The General Counsel also argues
that Kendrick was discharged discriminatorily in viola
tion of Section 8(a)(4) of the Act because of Kendrick's
participation in a Board proceeding Respondent argues
that its polygraph policy was not instituted unilaterally
but rather after bargaining with the Union to impasse
about such a policy Respondent also denies that Ken
dnck s participation in the Board proceeding scheduled
for 11 July, had anything to do with his discharge
The record convinces me that Respondent did institute
its polygraph policy unlawfully and that it discharged
Kendrick for a dual unlawful motive to enforce its un
lawfully instituted policy and to retaliate against Ken
drick for participating in a Board proceeding scheduled
for 11 July After being ordered by an arbitrator to rein
state Kendrick Respondent demanded a contractual pro
vision so broad in scope that it would allow Respondent
to require employees to subject themselves to polygraph
examinations on demand Refusal to submit to a poly
graph test would result in immediate discharge Even
more significant, however, was Respondent s demand
that a discharge for refusing to submit to the test or
based upon the results thereof' would not be subject to
arbitration It is apparent from what transpired at the
meeting on 27 June that Respondent met with the Union
solely for appearance sake and that it never bargained
with the Union about this demand with an open mind
Respondent refused to consider or even discuss reasona
ble suggestions made by the Union regarding the policy
Respondent clung steadfastly with a fixed position to its
demand that any discharge resulting from a polygraph
examination not be subject to arbitration Respondent s
demand effectively required the Union to give up any
right to represent discharged employees or to seek effec
tive remedy for an employee wrongfully discharged pur
suant to a polygraph examination Respondent's position
was so inherently objectionable that it was necessarily
designed to frustrate the parties ever reaching agreement
on the polygraph issue Further, it is apparent that Re
spondent s demand on the polygraph issue was not made
in good faith, but rather was designed to frustrate the
earlier decision of the court of appeals and the arbitrator
who ordered that Kendrick be reinstated I find that Re
spondent s position on the issue of polygraph examina
tions and its pro forma negotiations with the Union on
this subject evidence bad faith No good faith bargaining
every took place on the issue of polygraph examinations
Thus there was no good faith impasse that might allow
Respondent to institute such a policy, and I find that by
instituting its polygraph policy, Respondent did so in
violation of Section 8(a)(1) and (5) of the Act
Concerning Kendrick s discharge on 10 July 1984, it is
obvious that what precipitated his discharge was Ken
deck's conversation with Bittner on that day Bittner
first informed Kendrick that if Kendrick appeared at a
Board hearing scheduled for the following day without
having been subpoenaed Kendrick would be suspended
for the rest of the week Kendrick told Bittner that he
would be going to the hearing whether or not he had a
subpoena Bittner telephoned John Vogel to inform
Vogel of Kendrick s position Vogel through Bittner,
asked Kendrick if he enjoyed working for Respondent
and why he insisted on going to the Board When Ken
thick answered that he not only loved working for Re
spondent but loved his Union as well, Vogel became
angry A few minutes later , Vogel telephoned Bittner
with the demand that Kendrick submit to a polygraph
examination on 12 July, the day after the scheduled
Board hearing Respondent was countering Kendrick's
willingness to participate in a Board hearing on behalf of
the Union with a demand that he submit to a polygraph
examination Kendrick had once before refused to submit
884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to Respondents demand for a polygraph examination
and this is precisely what resulted in his earlier dis
charge Respondent's demand that Kendnck submit to a
polygraph examination on 12 July was simply a ploy by
Respondent to force Kendrick s refusal and thereby put
Respondent in a position of being able to discharge Ken
duck for refusing to take the examination In reality, Re
spondent s actions were in response to Kendnck agreeing
to support the Union by participating in and giving testi
mony at a Board hearing to be conducted 11 July I find
that Kendnck was discharged pursuant to Respondent s
polygraph examination policy, which was instituted un
lawfully in violation of Section 8(a)(1) and (5) of the
Act I also find that Respondent discharged Kendnck to
retaliate against him for agreeing to give testimony
before the Board and that his discharge violated Section
8(a)(1) and (4) of the Act as well
I The Refusal to Bargain
After 27 June 1984, when the parties met to negotiate
concerning Respondent's polygraph policy, neither the
Union nor Respondent made any request for bargaining
until 9 April 1986 On 9 April, approximately 1 month
before the trial began in these cases the Union wrote
Respondent requesting it to meet and negotiate with re
spect to a collective bargaining agreement covering the
drivers, platform men and servicemen at the former
Glover facilities now operated by Synergy Gas Corpora
tion Respondent made no response to this request for
bargaining
On 1 July 1986, the Unions attorney, Franklin K
Moss, wrote Daniel Shientag, Respondents attorney, re
questing the names and addresses of each of the Syner
gy employees in the bargaining units represented by [the
Union] " Shientag did not respond to Moss letter and
on 8 August 1986 Moss again wrote to Shientag stating
Synergy has repeatedly refused to comply with
demands to bargain and relevant requests for infor
mation with respect to both the office clerical unit
and the driver serviceman unit with respect to
whose employees Local 282 is the certified collec
tive bargaining representative
If we do not hear from Synergy immediately, we
intend to file refusal to bargain charges with the
NLRB
Shientag did not answer Moss letter of 8 August, and on
26 September 1986 the Union filed its charge in Case 29-
CA-12653 1
Respondent admits that it did not respond to the
Union s request for bargaining or request for the names
and addresses of unit employees In its answer to the
' On 19 August 1986 the Union filed a charge in Case 29-CA-12585
alleging that Respondent violated Section 8(a)(1) and (5) of the Act by
failing and refusing to provide the Union with the names and addresses of
employees in a unit of Respondents clerical employees represented by
the Union Complaint issued and Respondent filed an answer denying
that the Union requested it to bargain or to provide the Union with the
names and addresses of unit employees Thereafter the General Counsel
filed a Motion for Summary Judgment and on 17 April 1987 the Board
issued a decision Glover Bottled Gas Corp 283 NLRB 656 (1987) finding
that Respondent violated Sec 8(a)(1) and (5) of the Act as alleged
complaint in Case 29-CA-12653, Respondent alleges cer
tarn affirmative defenses that Respondent had objective
considerations that the Union did not represent a maton
ty of bargaining unit employees that changes in the em
ployee complement relieved Respondent of any bargain
mg obligation, and that the complaint is untimely and
barred by Section 10(b) of the Act At the hearing and in
its posttnal brief, Respondent also contended that the
complaint was barred and should be dismissed in accord
with Jefferson Chemical Co, 200 NLRB 992 (1972)
I reject Respondents argument that the complaint
should be dismissed based on Jefferson Chemical Co
supra, because I find that case altogether different from
the one at hand In Jefferson Chemical a broad Section
8(a)(1) and (5) refusal to bargain charge was filed with
the Board Thereafter a complaint issued and a hearing
was held before an administrative law judge At the
hearing, the judge asked the General Counsel if he in
tended to amend or expand the complaint in any way
The General Counsel assured the judge and Respondent
that it did not intend to do so Thereafter, a new charge
was filed and a complaint issued alleging general bad
faith bargaining by Respondent based on facts that oc
curred prior to the General Counsels disavowal of any
contention that Respondent had engaged in general bad
faith bargaining The Board dismissed the latter com
plaint, stating
Our dissenting colleagues argued that the General
Counsel should not be required to be aware of each
and every fact giving rise to a possible unfair labor
practice prior to the issuance of a complaint since
its investigation is normally limited to the allega
tions set forth in the charge While we do not dis
agree with this principle, we believe that as a cor
ollary, the General Counsel is dutybound to investi
gate all matters which are encompassed by the
charge, and to proceed appropriately thereafter
The complaint herein is based on a request for bargain
ing made by letter dated 9 April 1986 approximately 1
month before the trial began in this case, and on requests
for information made by letters dated 1 July and 8
August 1986 weeks after the original trial was closed In
response to the Union s written request for bargaining
dated 9 April Respondent did not respond by denying
the request or affirmatively setting forth any good faith
doubt of the Union representing a majority of employees
In fact Respondent did not respond at all to the Union s
request for bargaining Although Respondent could
easily have responded to the Union s request in such a
manner as to affirmatively join issue with its obligation
to bargain prior to the commencement of the trial on 13
May 1986 Respondent remained silent Although from
hindsight we now know that Respondents refusal to bar
gain predated the beginning of the trial, when the trial
began the Union was not acting unreasonably in waiting
to file a charge by giving Respondent ample time to re
spond to its request for bargaining This case is therefore
distinguishable from Jefferson Chemical Co, supra, and
Union Electric Co 219 NLRB 1081 (1975), also cited by
Respondent, in two significant respects First not all the
GLOVER BOTTLED GAS CORP 885
facts supporting the allegations in the complaint oc
curred prior to the commencement of the trial Second
as a result of Respondents own silence , Respondents re
fusal to recognize and bargain with the Union had not
been made clear , pnor to the commencement of the trial
Accordingly , I reject Respondents argument that the
complaint should be dismissed on these grounds
I also reject Respondents argument that the complaint
should be dismissed because it is untimely filed and
barred by Section 10 (b) of the Act In support of this ar
gument , Respondent attempted to prove through its
counsel , Daniel Shientag , that Respondent actually with
drew recognition from and refused to bargain with the
Union beginning in January 1986 In October 1985 and
January 1986 , Respondent and the Union were involved
in an arbitration proceeding During the course of one of
the arbitration hearings in January 1986, Shientag and
Moss , the Union s attorney , held a private conversation
to discuss possible settlement of the arbitration proceed
ing Although Respondent 's changes in employee bene
fits were not the topic of the arbitration proceeding,
Moss made a remark during the conversation concerning
the changes , which are the subject of this case Moss
stated , inter alia, that Respondent was obligated to bar
gain over these changes Shientag testified
I told [Moss] that they had not requested any bar
gaining sessions since the strike , that the only
people who had done anything about bargaining
was us , that all of the people who had been there at
the time of the strike had been replaced and at that
time , there were only three that I knew of who had
been rehired , all the rest were replacements or had
come in there by way of turnover and I just didn t
believe that they represented the people in the place
anymore
Respondent argues that Shientag 's statement to Moss
constituted an unequivocal withdrawal of recognition in
January 1986 and that the complaint in Case 29-CA-
12653 is therefore barred by Section 10(b) of the Act I
reject Respondents argument that Shientag s statement
constituted an unequivocal withdrawal of recognition
The purpose of the discussion between Shientag and
Moss on this occasion in January 1986 was not to bar
gain over Respondents changes in employee benefits or
any other working conditions of employees The purpose
of the conversation was to discuss the possible settlement
of a specific arbitration proceeding Nor was there any
pending request by the Union that Respondent meet and
bargain Further , the Union had no reason to view
Shientag s statement as anything other than a matter of
opinion since Respondent itself had notified the Union
and offered to bargain concerning the proposed changes
in its employee benefits plan I am convinced that in
these circumstances Shientag 's statement was both in
tended by him and received by Moss as purely a matter
of Shientag s personal opinion The exchange was noth
ing more than a parting salvo between two bantering
lawyers who had not been able to settle the arbitration
dispute Shientag , who is an articulate and experienced
labor attorney did not state that Respondent was with
drawing recognition from the Union If Shientag had
wished to communicate a withdrawal of recognition,
there is no question in my mind that he would have done
so in exactly those terms Accordingly , I find that Re
spondent did not clearly withdraw recognition from the
Union in January 1986 in such a manner as to bar the
instant complaint pursuant to Section 10(b) of the Act
Moreover , I find that even if Respondent had attempted
to withdraw recognition from the Union in January
1986, it is prevented from doing so by its earlier and yet
unremedied unfair labor practices , including its failure to
offer reinstatement to a majority of the economic strikers
who made unconditional offers of reinstatements and its
bad faith bargaining with the Union concerning its poly
graph examination policy An employer may not justify a
refusal to bargain premised on a union s loss of majority
support attributable to the employers own unfair labor
practices
I also reject Respondents contention that it was privi
leged to reject the Union s request for bargaining and for
information about the names and addresses of employees
in the bargaining unit because Respondent had objective
considerations for believing that the Union did not repre
sent a majority of employees in the unit It is well settled
that an incumbent union enjoys a rebuttable presumption
of continued majority status on the expiration of a col
lective bargaining agreement An employer may lawfully
refuse to bargain with an incumbent union only when it
can establish either that at the time of the refusal to bar
gain , the Union in fact no longer enjoyed majority status
or that its refusal to bargain was predicated on a good
faith and reasonably grounded doubt of the Union's con
tinued majority status Terrell Machine Co 173 NLRB
1480 (1969), enfd 427 F 2d 1088 (4th Cir 1970)
Respondents admitted failure to bargain with or pro
vide relevant information to the Union constitutes a
prima facie violation of Section 8(a)(5) of the Act Re
spondent bears the burden of establishing an affirmative
defense to its failure to bargain Respondent contends
that it had objective considerations from which to form a
reasonable doubt of the Union s majority status based on
three factors the Union had not requested bargaining for
almost 2 years only three strikers were employed in the
bargaining unit and there had been a significant turnover
in the bargaining unit The lapse in time from the meet
ing between the parties on 27 June 1984 to the Union s
request for bargaining on 9 April 1986 is not itself par
ticularly significant In its posttrial brief, Respondent as
serts in essence that the Union simply should not be al
lowed to continue its claim to represent employees after
a significant hiatus in bargaining Respondent is in no po
sition to seriously argue that the Union abandoned, or
gave Respondent the impression that it had abandoned,
its claim to represent unit employees throughout that
period The Union had been actively and vigorously pur
suing the numerous unfair labor practice charges cap
tioned above Substantial delays occurred while these
cases were postponed indefinitely as a result of protract
ed litigation between the parties on related issues before
the Federal courts and , later , before an arbitrator The
lapse of time during which the Union did not specifically
886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
request Respondent to resume contract negotiations is
therefore no indication that the Union did not claim to
represent or in fact represent Respondents employees
Respondent next argues that it experienced expansion
and massive turnover in the bargaining unit since the
1983 strike so as to give Respondent good reason for
doubting whether the Union continued to represent a
majority of employees in the unit In support of its pose
tion, Respondent notes that 11 striking employees were
displaced by permanent replacements Near the end of
1983 Respondents Deer Park office closed and 7 em
ployees were transferred to the Patchogue facility, there
by expanding the bargaining unit to 22 employees Be
tween February 1983 and January 1986, a total of 39 in
dividuals were employed by Respondent, representing a
significant turnover rate By January 1986, the bargain
ing unit consisted of 25 employees, only 3 of whom were
employed prior to the strike Respondent concludes its
argument by noting, To Respondent's knowledge, not
one of the employees was a union member 2
At the hearing, the parties stipulated that when the
Deer Park office closed and certain employees were
transferred to the Patchogue facility, the transferred em
ployees constituted an accretion to the bargaining unit at
Patchogue represented by the Union In such accretion
situations, there is no reason not to believe that employ
ees accreted to the already existing unit do not favor
representation in the same degree as employees already
in the unit Therefore, there is no reason to believe that
as a result of the unit expanding a majority of employees
no longer wished to be represented by the Union
Rather, there is every reason to believe that the Union s
majority status continued I also find both the number of
permanent replacements hired and the turnover in the
bargaining unit between 1983 and 1986 to be insufficient
reasons for finding that Respondent entertained a good
faith doubt of the Union's continues majority status The
Board recently stated that it cannot ascertain strike re
placements union sentiments merely from their having
crossed a picket line Station KKHI, 284 NLRB 1339
(1987) The Board is unwilling to presume the union sen
timents of strike replacements and an employer is re
quired to present further evidence to support a claimed
good faith doubt Moreover, turnover does not constitute
sufficient objective considerations to justify a withdrawal
of recognition
Even if employee turnover was a significant consider
ation in determining whether an employer had an objec
tive basis for forming a reasonable doubt of a union s
continued majority status I would find in this case that
because of the numerous unfair labor practices Respond
ent has been found to have engaged in by not offering
available positions to strikers after they made an uncon
ditional offer to return to work Respondent is precluded
from relying on these factors as a basis for its alleged ob
jective considerations If Respondent had offered avail
able positions to strikers after they made their uncondi
tional offer to return to work there is every reason to
2 Respondent does not reveal whether it had any actual knowledge of
employees union membership what that knowledge might be or how it
might have obtained that knowledge
believe that in January 1986 all strikers would have been
reinstated and would have comprised an actual majority
of the appropriate bargaining unit Respondents own
unfair labor practices in not offering strikers positions as
they became available is the very basis on which Re
spondent is now able to contend that significant turnover
occurred in the bargaining unit For the reasons stated
above, I reject Respondents arguments that it had a suf
ficient objective basis to form a reasonable doubt of the
Union s continued majority status Accordingly, I find
that by failing and refusing to recognize and bargain
with the Union as the representative of its employees be
ginning 9 April 1986 and by failing and refusing to fur
nish the Union with the names and addresses of bargain
ing unit employees beginning 1 July 1986, Respondent
has violated Section 8(a)(1) and (5) of the Act
CONCLUSIONS OF LAW
1 Respondent Glover Bottled Gas Corp, Vogel s
Inc, New York Propane Corp, Synergy Group, Inc,
and Synergy Gas Corp comprise a single integrated en
terpnse and a single employer within the meaning of the
Act, and are now, and have been at all times material, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act
2 Local 282, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen, and Helpers of America is
and has been at all times material, a labor organization
within the meaning of Section 2(5) of the Act
3 By failing to offer available positions to stikers who
made an unconditional offer to return to work, by using
employees of sister companies to perform bargaining unit
work to avoid recalling strikers, and by hiring new em
ployees without offering those positions to strikers Re
spondent violated Section 8(a)(1) and (3) of the Act
4 By purposely attempting to humble employees Gary
Estes and Richard Dean by treating them as new em
ployees when they were finally recalled to work, and by
making them perform yard work for a month before re
assigning them to normal duties Respondent discriminat
ed against Estes and Dean and thereby violated Section
8(a)(1) and (3) of the Act
5 Respondent did not discriminate against employees
Estes and Dean regarding the assignment of overtime
work following their reinstatement but rather assigned
them overtime in general conformity with its contractual
proposal that overtime work be assigned equitably and
without regard to seniority and Respondent did not
thereby discriminate against Estes and Dean in violation
of Section 8(a)(1) and (3) of the Act
6 Respondent discharged employee Robert Bradley
for cause and not because of his activities on behalf of,
or support for, the Union, and by discharging Bradley
Respondent did not thereby violate Section 8(a)(1) and
(3) of the Act
7 By Respondent implementing its proposed health
benefits plan after bargaining with the Union to impasse
Respondent did not violate Section 8(a)(1) and (5) of the
Act
8 By unilaterally and discnminatonly withholding be
reavement pay and vacation pay from strikers Respond
GLOVER BOTTLED GAS CORP
ent unilaterally abrogated the terms and conditions of
their employment and discriminated against them in vio
lation of Section 8(a)(1), (3), and (5) of the Act
9 By instituting its polygraph policy after bargaining
in bad faith with the Union, Respondent violated Section
8(a)(1) and (5) of the Act
10 By discharging Union Steward Ralph Kendrick
pursuant to Respondents unlawfully instituted polygraph
examination policy and in order to retaliate against Ken
duck for agreeing to give testimony before the Board,
Respondent violated Section 8(a)(1), (4), and (5) of the
Act
11 By failing and refusing to recognize and bargain
with the Union as the exclusive representative of Re
spondent s employees employed at out of, or dispatched
from its Patchogue facility, including, drivers, platform
men and servicemen, and by failing and refusing to pro
vide the Union with the names and addresses of employ
ees in the appropriate collective bargaining unit, Re
spondent violated Section 8(a)(1) and (5) of the Act
12 The unfair labor practices which Respondent has
been found to have engaged in, as described above, have
a close , intimate , and substantial relationship to trade,
traffic and commerce among the several States and tend
to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce within the mean
ing of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1), (3),
(4) and (5) of the Act, I shall recommend that it be or
derd to cease and desist thereform and to take certain
affirmative action designed to effectuate the policies of
the Act
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend
ed3
ORDER
The Respondent, Glover Bottled Gas Corp Patcho
gue New York Vogel's, Inc, Farmingdale , New York
New York Propane Corp, Farmingdale, New York,
Synergy Group, Inc Farmingdale New York, Synergy
Gas Corp, Deer Park, New York, its officers agents
successors , and assigns, shall
1 Cease and desist from
(a) Failing to offer available positions to strikers who
made an unconditional offer to return to work , using em
ployees of sister companies to perform bargaining unit
work to avoid recalling strikers, and hiring new employ
ees without offering those positions to strikers
(b) Treating strikers as new employees when they are
recalled to work by making them perform yard work
before reassigning them to normal duties
8 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the fmdmgs conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
887
(c) Unilaterally and/or discriminatorily withholding
bereavement pay and vacation pay from strikers
(d) Instituting any polygraph policy without first bar
gaining in good faith to impasse with Local 282, Interna
tional Brotherhood of Teamsters, Chauffeurs Ware
housemen and Helpers of America as the representative
of its employees
(e) Discharging employees pursuant to its unlawfully
instituted polygraph examination policy and/or in order
to retaliate against employees for agreeing to give testi
mony before the Board
(f) Failing and refusing to recognize and bargain with
the Union as the exclusive representative of Respond
ent's employees employed at, out of, or dispatched from
its Patchogue facility, including drivers, platform men
and servicemen, and/or failing and refusing to provide
the Union with the names and addresses of employees in
the appropriate collective bargaining unit
(g) In any like or related manner interfering with, re
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer striking employees who made an uncondi
tional offer to return to work immediate and full rein
statement to their former positions or, if those positions
no longer exist, to substantially equivalent positions with
out prejudice to their seniority and other rights and
privileges, discharging if necessary employees of Re
spondent s sister companies who have been used to per
form unit work to avoid recalling strikers and new em
ployees who have been hired by Respondent since 15
April 1983
(b) Offer Ralph Kendrick immediate and full reinstate
ment to his former position or, if that position no longer
exists, to a substantially equivalent position without prej
udice to his seniority and other rights and privileges
(c) Make whole Ralph Kendrick and striking employ
ees who made an unconditional offer to return to work
on 15 April 1983 for any loss of earnings or benifits they
may have suffered by reason of the discrimination
against them by paying them a sum of money equal to
the amount they normally would have earned from the
date of said discrimination to the date of Respondent s
offer of reinstatement, less net interim earnings, with
backpay to be computed in the manner prescribed in
F W Woolworth Co, 90 NLRB 289 (1950), with interest
to be computed in the manner prescribed in New Hon
zonsfor the Retarded 283 NLRB 1173 (1987) 4
(d) Remove from its files any reference to the unlaw
ful discharge and notify the employee in writing that this
has been done and that the discharge will not be used
against him in any way
* As noted in the body of this decision Respondents unlawful discrim
mation against sinkers adversely affected a group or classcompnsed of all
striking employees The record does not reflect the relative seniority of
all sinkers and it is therefore not possible at this time to determine with
certainty which sinkers should have been recalled to specific vacancies I
shall therefore leave that determination to the compliance stage of this
proceeding
888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(e) Make whole employees who have suffered any loss
of bereavement pay or vacation pay as a result of Re
spondent s unlawful actions
(f) Withdraw and abandon its polygraph policy at least
until such time as Respondent bargains in good faith to
impasse on the subject with Local 282, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America as the representative of Re
spondent s employees
(g) Recognize and, on request, bargain with Local 282,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America as the exclusive
representative of Respondents employees employed at,
out of, or dispatched from its Patchogue facility, includ
ing drivers, platform men and servicemen, excluding
office clerical employees, guards and supervisors as de
fined in the Act
(h) Provide the Union with the names and addresses of
employees in the collective bargaining unit described
above
(i) Preserve and on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time
cards personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order
(l) Post at its Patchogue and Deer Park, New York,
facilities copies of the attached notice marked Appen
dix ' 5 Copies of said notices on forms provided by the
Regional Director for Region 29, after being signed by
Respondents representative shall be posted immediately
on receipt and maintained for 60 consecutive days in
conspicuous places, including all places where notices to
employees are customarily posted Reasonable steps shall
be taken by Respondent to ensure that the notices are
not altered, defaced or covered by any other material
(k) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply
5If 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 or
dered us to post and abide by this notice
Section 7 of the National Labor Relations Act gives em
ployees these rights
To organize
To form join or assist unions
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec
tion
To choose not to engage in any of these protect
ed concerted activities
WE WILL NOT fail to offer available positions to stnk
ers who made an unconditional offer to return to work,
use employees of sister companies to perform bargaining
unit work in order to avoid recalling stnkers, or hire
new employees without offering those positions to strik
ers
WE WILL NOT treat strikers as new employees when
they are recalled to work by making them perform yard
work before reassigning them to normal duties
WE WILL NOT unilaterally and/or d iscriminatonly
withhold bereavement pay or vacation pay from strikers
WE WILL NOT institute any polygraph policy without
first bargaining in good faith to impasse with Local 282,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America as the represent
ative of our employees
WE WILL NOT discharge employees pursuant to our
unlawfully instituted polygraph examination policy
and/or in order to retaliate against employees for agree
ing to give testimony before the National Labor Rela
tions Board
WE WILL NOT fail and refuse to recognize and bargain
with the Union as the exclusive representative of em
ployees employed at, out of, or dispatched from our Pat
chogue facility, including drivers, platform men and
servicemen, and/or fail and refuse to provide the Union
with the names and addresses of employees in the appro
pnate collective bargaining unit
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercies of the
rights guaranteed them in Section 7 of the Act
WE WILL offer striking employees who made an un
conditional offer to return to work immediate and full
reinstatement to their former positions or if those post
tions no longer exist, to substantially equivalent positions
without prejudice to their seniority and other rights and
privileges discharging if necessary employees of sister
companies who have been used to perform unit work in
order to avoid recalling strikers and new employees who
have been hired since 15 April 1983
WE WILL offer Ralph Kendrick immediate and full re
instatement to his former position or, if that position no
longer exists to a substantially equivalent position with
out prejudice to his seniority and other rights and pnvi
leges
WE WILL make whole Ralph Kendrick and striking
employees who made an unconditional offer to return to
work on 15 April 1983 for any loss of earnings or bene
fits they may have suffered by reason of the discrimina
tion against them by paying them a sum of money equal
to the amount they normally would have earned from
the date of said discrimination to the date of our offer of
reinstatement less net interim earnings with appropriate
interest
GLOVER BOTTLED GAS CORP
WE WILL remove from our files any reference to the
discharge of Ralph Kendrick and notify him in writing
that this has been done and that evidence of the unlawful
discharge will not be used as a basis for future personnel
actions against him
WE WILL make whole employees who have suffered
any loss of bereavement pay or vacation pay because of
our unlawful actions
WE WILL withdraw and abandon our polygraph policy
at least until such time as we bargain in good faith to im
passe on the subject with Local 282 , International Broth
erhood of Teamsters , Chauffeurs , Warehousement and
Helpers of America as the representative of our employ
ees
889
WE WILL recognize and, on request, bargain with
Local 282 International Brotherhood of Teamsters,
Chauffeurs Warehousemen and Helpers of America as
the exclusive representative of employees employed at
out of, or dispatched from our Patchogue facility , includ
ing drivers , platform men , and servicemen , excluding
office clerical employees , guards, and supervisors as de
fined in the Act
WE WILL provide the Union with the names and ad
dresses of employees in the collective bargaining unit de
scribed above
GLOVER BOTTLED GAS CORP , VOGEL S,
INC, NEW YORK PROPANE CORP, SYNER
GY GROUP, INC SYNERGY GAS CORP