Gulf Coast Automotive Warehouse, Inc.

National Labor Relations Board - Board Decisions

Jun 10, 1981

256 N.L.R.B. 486 (N.L.R.B. 1981)

486 I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gulf Coast Automotive Warehouse, Inc. and United
Food and Commercial Workers International
Union, AFL-CIO-CLC, Local 455.' Case 23-
CA-6521
June 10, 1981
DECISION AND ORDER
On February 9, 1981, Administrative Law Judge
Russell L. Stevens issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the Re-
spondent filed an answering brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions 3 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
The name of the Charging Party appears as amended at the hearing.
2 The General Counsel asserts that the Administrative Law Judge's
findings of fact and conclusions of law are the result of bias. After a care-
ful examination of the entire record, we are satisfied that this allegation is
without merit. There is no basis for finding that partiality existed merely
because the Administrative Law Judge resolved important factual con-
flicts in favor of the Respondent. As the Supreme Court stated in
N.L.R.. v. Pittsburgh Steamship Company, 337 U.S. 656, 659 (1949),
"[Tjotal rejection of an opposed view cannot of itself impugn the intre-
grity or competence of a trier of fact."
" In reaching our decision herein we do not rely on fn 9 of the Ad-
ministrative Law Judge's Decision insofar as it purports to represent the
General Counsel's position in this matter. We do emphasize, however as
did the Administrative Law Judge, that the issue presented here was lim-
ited to the narrow one of an alleged unilateral change in working condi-
lions in violation of Sec. 8(a)(5). and not Respondent's general bargaining
obligation with respect to the subject of administering polygraph exami-
nations.
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge: This
case was heard before me in Houston, Texas, on Decem-
ber 11, 1980.1 The complaint, issued July 7, 1977, is
based on a charge filed May 16, 1977, by United Food
and Commercial Workers International Union, AFL-
CIO, CLC, Local No. 55 (herein called Union). 2 The
complaint alleges that Gulf Coast Automotive Ware-
house, Inc. (herein called Respondent), violated Section
I All dates hereinafter are within 1977, unless stated to be otherwise.
The hearing was delayed pending judicial resolution of matters not in-
volved in these proceedings.
z The name of the Union was amended at the hearing by agreement of
the parties.
256 NLRB No. 84
8(a)(5) and (1) of the National Labor Relations Act
(herein called Act).
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, and to argue orally. Briefs, which have
been carefully considered, were filed on behalf of the
General Counsel and Respondent.
Upon the entire record, and from my observation of
the witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is, and at all times material herein has
been, a corporation duly organized under and existing by
virtue of the laws of the State of Texas, maintaining its
principal office and place of business in Houston, Texas,
where it is engaged in the storing and wholesale distribu-
tion of automotive parts and related products. During
the past 12 months, which period is representative of all
times material herein, Respondent received goods and
supplies valued in excess of $5,000, which were shipped
directly to it in Houston from points outside the State of
Texas.
I find that Respondent is, and at all times material
herein has been, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
Iii. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent deals in the sale of parts for automobiles,
and since approximately 1972 has used polygraph tests in
order to maintain security of the business. Those tests
have been, and presently are, administered for Respond-
ent by an independent business organization. The tests
have not been given to applicants and employees on a
regular schedule, and not all applicants and employees
have been tested. Respondent does not budget, or other-
wise provide, any of the tests in a regular manner; the
tests are given, and paid for, in an irregular manner.
Over the years, the costs of individual tests have dimin-
ished, from $35 to $20.
Following an election conducted by the National
Labor Relations Board (herein called the Board), the
Union was certified by the Board on October 28, 1976,
as the exclusive-bargaining representative of Respond-
ent's employees in the following unit, and the Union
presently represents those employees:
All full-time and regular part-time employees work-
ing at Respondent's warehouse, including zone fore-
men, truck drivers, truck mechanics, order pullers,
returns and defects employees, stockers, rollers,
foxers and utility housekeeping employees, but ex-
cluding order takers, pricers, accounts payable
3 This background summary is based on credited testimony and evi-
dence not in dispute.
GULF COAST AUTOMOTIVE WAREHOUSE, INC. 487
clerk, temporary employees, inventory clerks,
guards and supervisors as defined in the Act. 4
In October 1975 an employee named Jim Kielty, who
then had been working for Respondent approximately 2
years but who was not suspected of anything, was told
he had to take a polygraph test, and if he refused, he had
to resign from his job. Kielty refused to take the test,
and was discharged October 30, 1975.
Approximately in July 1976 an employee named Paul
Gonzales was suspected of stealing from Respondent.
Gonzales took a polygraph test, failed to pass it, and was
discharged. The Union filed an unfair labor practice
charge with the Board because of the discharge, but the
charge later was withdrawn.
A few weeks prior to the Board-conducted election
held on August 13, 1976, a union representative named
Arlene Carrow accompanied by former employee Larry
Acker, called on Dennis Mabry, Respondent's president,
to request that Mabry reemploy Acker, who had been
discharged because he refused to take a polygraph test.
Acker and two other employees were suspected of steal-
ing locks. The other two employees took polygraph
tests, but Acker refused. Mabry declined to rehire Acker,
and an unfair labor practice charge was filed with the
Board, alleging that Respondent violated Section 8(a)(3)
of the Act. The charge later was withdrawn.
In May 1977 one of Respondent's employees was Tom
Covington. Covington was arrested by police, and
Mabry went to the station to post bail for Covington.
While at the station, Mabry learned for the first time that
Covington had a record as a convicted embezzler.
Mabry returned to the warehouse after learning that the
police would not release Covington on bail, and talked
with employee Cheryl Lee Nepveux and two other em-
ployees. Mabry informed the three employees that Cov-
ington had to return to prison and would not be back to
work for Respondent, although Mabry had no reason to
suspect Covington of stealing anything from Respondent
and would consider Covington for rehire if he did return
and asked for a job. That same day Hector Martinez, Re-
spondent's assistant warehouse manager who worked
under Warehouse Manager Hughie Harmon, met with
approximately 30 to 45 of Respondent's employees in
Harmon's office. Martinez informed the employees of
Covington's situation, without naming Covington, and
said that, because of the situation, all the employees must
take polygraph tests relative to ". . . most of the stuff
had to do with our employ, our applications."s Nepveux
asked what would happen if the employees did not take
the test, and Martinez replied that they would be dis-
charged. A couple of days later the employees began to
take the tests, leaving the warehouse to take them, two
at a time, on Tuesday, Wednesday, and Thursday.
Twenty-three employees were tested thereafter, which
constituted almost all the warehouse employees. 6 The
' There is no bargaining contract between Respondent and the Union
This statement is from the credited testimony of Nepseux.
e The only exception of record was Nepveux, who credibly testified
that she did not take the test.
Union was not notified about the tests, and no employee
was disciplined as a result of the tests.
On May 16, 1977, James C. Phillips of the Union
wrote a letter to Mabry, reading as follows:
Dear Mr. Mabru:
As you know, Retail Clerks Union, Local No. 455
has been certified as the exclusive bargaining repre-
sentative for your employees in an appropriate bar-
gaining unit, in Case No. 23-RC-4391. In our ca-
pacity as the duly designated and certified collec-
tive bargaining representative of your employees in
said unit, we want to protest your imposition of a
unilateral change in working conditions as a condi-
tion of continued employment without notice to or
consultation with this Union.
The unilateral change in working conditions we
refer to is your demand that these employees submit
to a polygraph test given by an operator of your se-
lection under whatever conditions you choose to
impose. We also understand that you have not sup-
plied any of the employees with any specification of
alleged offenses which would justify such drastic
proceedings. We demand that you retract any
orders to the employees to take polygraph tests or
to submit to a polygraph test under these condi-
tions, and to meet with us at the bargaining table
for full bargaining on the subject in accordance
with the bargaining commandment of the National
Labor Relations Act. We think that you should fur-
nish this Union with a list of persons you claim to
have committed offenses grievous enough to justify
this type of investigation together with an itemized
statement of the facts the charge is based upon pre-
liminary to our meeting on the question of whether
employees should be required to submit to poly-
graph tests. Once we have received such a list to-
gether with the written specifications of the alleged
offenses, we will be willing to meet with you at the
earliest possible opportunity to bargain with you on
this condition of employment as well as hours,
wages and other conditions of employment to be in-
corporated in a collective bargaining contract.
On May 20, 1977, Respondent's representative, V.
Scott Kneese, replied to the Union and stated, inter alia:
With respect to Mr. Phillips' letter of May 16,
1977, there has been no unilateral change in work-
ing conditions. Polygraph examinations have been a
long standing policy of GCAW. In fact, the Union
withdrew a prior unfair labor practice charge in-
volving polygraph tests (case number 23-CA-6158).
Accordingly, any tests which may be required at
the present or in the future constitute a mere con-
tinuation of past practice. Moreover, even if there
had been a change, bargaining over such change
would be inconsistent with GCAW's previously
stated position.
General Counsel contends that, since the tests of May
and June 1977 were different from tests given prior
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereto, Respondent was required under the Act to bar-
gain with the Union prior to requiring employees to take
the tests.
B. Respondent's Policy Concerning Polygraph Tests
Respondent has no written policy, or statement of
policy, concerning the tests.
Mabry testified that, in 1978 and 1979, Respondent had
a personnel manager whom he instructed to tell appli-
cants concerning tests, but that testimony is irrelevant to
the incident involved herein, which occurred in May
1977. Mabry further testified that applicants were ad-
vised of tests in 1976 and 1977, but Nepveux and em-
ployee Isabell McLearen testified that they did not take
preemployment tests, which Mabry did not deny. Mabry
credibly testified that office employees were required to
take tests, and that he so advised them when he hired
them. It is clear, and found, that at least some applicants,
if not all, were told prehire and thereafter, that they may
be given polygraph tests.
Mabry testified that, since 1972, he has had a policy
concerning tests, and that he explained that policy in
detail to Carrow in August 1976, when the Union
charged Respondent with discharging Acker in violation
of the Act. Mabry testified concerning this conversation
with Carrow:
Q. What did you explain to her about why you
had polygraphs?
A. Well, the fact that it's a security measure.
There is so much stuff out there that people can just
put in their pockets and walk out with it, it's just
one of the few deterrents that I have and that if we
let people get away with not taking polygraph tests,
then, I have no security to speak of.
Q. What did you tell her about how you give
polygraph tests?
A. Well, I just told her that we felt that we had a
right to do it at any time, either at random or on
suspicion or if someone had turned in a report
saying that they saw somebody steal some thing.
That we tried to screen people with polygraphs
before we even hired them, although that clearly
didn't happen all the time. We got busy and ....
JUDGE STEVENS: What didn't happen all the
time? You didn't give all applicants tests?
THE WITNESS: That's correct. Before they were
hired. We sometimes just got too busy and said
we'll hire this guy and send him down next week to
take a polygraph test. Sometimes we did and some-
times we didn't.
BY MR. MCBEE:
Q. Was there any further discussion with Ms.
[Carrow]
A. Well, other than just the fact that it had been
our policy for a long time and that I wasn't going
to hire Larry back. I can't remember anything else.
Carrow was not called to testify. General Counsel did
not cross-examine Mabry concerning his conversation
with Carrow. There is no dispute concerning the fact
that the Union knew that Respondent used polygraph
tests, both prior to and after the election conducted by
the NLRB. Mabry was a convincing witness, and he is
credited. It is found that, at all times since 1972, Re-
spondent has had a policy of using polygraph tests as a
security measure, and subjecting employees to tests prior
to employment, post-employment upon suspicion of
stealing, and post-employment in the absence of such sus-
picion. 7 It is further found that the Union was advised
by Respondent of that policy in August 1976, and that
the Union has not challenged that policy, or requested
Respondent to bargain concerning the policy, prior to
the incident involved herein.
C. Respondent's Practice Concerning Polygraph Tests
The fact that Respondent has used preemployment
tests, without challenge or request for bargaining by the
Union, since at least 1972 is not in dispute. Nepveux tes-
tified that she was not given such a test prior to employ-
ment, but Mabry credibly testified that preemployment
tests were not given to all applicants, and that such tests
were given on a rather loose basis; at times, tests were
not given for lengthy periods. Former employee Isabell
McLearen testified that she had not been given a preem-
ployment test, but that she heard Loriana Freeman, a
fellow-employee, state that she, Freeman, had taken a
preemployment test. Both Nepveux and McLearen testi-
fied that they knew of no employee, or heard of no em-
ployee (other than Freeman), who had been given a
preemployment or any other type of polygraph test, but
that testimony is given no weight, since they would not
necessarily know if tests were given to employees other
than themselves.
General Counsel questioned Mabry and established
through Respondent's records that Respondent gave
preemployment tests to 21 individuals in June 1978 and 7
individuals in July 1978. There is no dispute concerning
the fact that the Union did not challenge those tests.
General Counsel also questioned Mabry concerning
several tests given in May and June 1979, dealing mainly
with an individual's "suitability for employment," and
also dealing with some who "may have taken some prop-
erty from the company." The Union did not challenge
any of those tests.
D. Discussion
General Counsel's case is based on the contention that
the tests resulting from the Covington incident were new
tests unrelated to preemployment and specific suspicion
situations. It is apparent that the Union knew about, and
did not seek to interfere with, the latter two types of
tests, both of which long predated the Union's certifica-
tion and which often have been, and are being, used by
Respondent. General Counsel argues, and Respondent
does not dispute, that the motive for tests given as a
result of the Covington incident is unique, in that tests
previously were not given in the same type of situation.
However, there was no such situation at any other time,
and in any event, motive here was not alleged in the
pleadings as being, nor is it in law, relevant to the issue.
7 See Kielty, supra.
GULF COAST AUTOMOTIVE WAREHOUSE, INC. 489
Whether or not the Act was violated by Respondent's
unilateral change of working conditions is a matter for
factual determination, regardless of any motive that may
be involved.8
General Counsel argues in his brief that the reason for,
rather than the facts of, the Covington-related tests is
what sets them apart from other tests, and makes them
actionable. 9 However, as touched upon supra, the facts
relative to the change, if any, must control the issue, and
it is the facts that are analyzed herein.
As Mabry credibly explained, and as commonsense
shows, the reason for polygraph tests is to maintain the
security of Respondent's premises and their contents.
Prehire tests were logical, commonplace, and well
known to the Union and to Respondent's applicants and
employees. The testimony of Nepveux and McLearen
that they had not taken such tests and did not know
about them, or about anyone taking them, is discussed
supra. The fact that such tests were given on a rather
haphazard basis is of no weight-they were, nonetheless,
given and known about. Tests given upon suspicion of
theft also were logical, were not rare, and were well
known to the Union and to Respondent's employees.
Mabry credibly testified that the Covington incident re-
minded him that several employees had not been tested
before being hired, and that the warehouse employees
were sent for tests partially for that reason and partially
to ascertain whether or not he may have other Coving-
ton-type employees on the payroll. Nepveux' testimony
supports Mabry on this point; she testified that Martinez
told the employees that the tests triggered by Covington
". . had to do with [our] employ, our applications."
Clearly, Mabry felt uneasy because of the possibility that
he had let his guard down by not testing all applicants
before hiring them.
There is no evidence that the tests of May 1977 were
any different from all the other polygraph tests given to
Respondent's employees. The questions propounded to
8 N.L.R.B. v. Benne Katz, etc.. d/b/a Williamsburg Steel Products Co..
369 U.S. 736 (1962); Peerless Food Products, Inc.., 236 NLRB 161 (1978).
9 In his brief, counsel for General Counsel argues that the charge and
complaint herein are supported, in that Respondent must bargain over the
issue of administering any polygraph tests to applicants or employees.
That argument misses the point at issue, and is without merit The plead-
ings, the Union's letter of May 16, the transcript of testimony, colloquies
of counsel at hearing, briefs of counsel, and the facts of record make it
quite clear that the issue is the alleged unilateral charge of May 1977, and
not the general subject of giving polygraph tests to applicants and em-
ployees. The latter issue was not pleaded or litigated and is not decided.
the Covington group were for security purposes and
could not be different from questions propounded to job
applicants and to employees who were suspected of
stealing. General Counsel argues that none of the Cov-
ington group was shown to be suspected of anything, but
that is without significance-applicants for employment
are not suspected of anything, either, yet the Union did
not object to such tests.
The employees, and their Union, did not raise the issue
of time spent in taking tests or inconvenience, thus it ap-
pears that those matters were of minimal, if of any, con-
cern. So far as the record shows, the employees took the
tests on paid time.
It is clear from the foregoing that the tests of May
1977 did not constitute a change of past working condi-
tions. The tests of that date were a continuation of past
business practices, and the tests were not actionable as al-
leged.
Upon the basis of the foregoing findings of act, and
the entire record, I make the following:
CONCL.USIONS OF LAW
1. Gulf Coast Automotive Warehouse, Inc., is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. United Food and Commercial Workers International
Union, AFL-CIO, CLC, Local 455 is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. Respondent did not, as alleged, violate Section
8(a)(5) and (1) of the Act.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and upon the entire record in this case,
and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER 12
The complaint is dismissed in its entirety.
no Peerless Food Products Inc., supra,' Bureau of National Affairs. Inc.,
235 NLRB 8 (1978)
i i North Kingtrown Nursing Care Center, 244 NLRB 34 (1979); Engi-
neered Building Product. Inc., 162 NLRB 649 (1967)
12 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.