Southwire Co.

National Labor Relations Board - Board Decisions

Feb 3, 1987

282 N.L.R.B. 916 (N.L.R.B. 1987)

916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southwire Company and United Steelworkers of
America, AFL-CIO. Case 10-CA-20617
3 February 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 24 July 1985 Administrative Law Judge
Robert A. Gritta issued the attached decision. The
General Counsel and the Charging Party filed ex-
ceptions and supporting briefs, and the Respondent
filed an answering brief,
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge dismissed the complaint in its entirety
finding that the Respondent did not violate Section
8(a)(1) of the Act by interrogating its employees
about their union activities; by threatening employ-
ees with layoffs, loss of promotions, and loss of
wage increases for engaging in activities on behalf
of the Union; and by threatening that it would not
bargain in good faith with the Union if the Union
was elected as collective-bargaining representative.
For the reasons set forth below, we find merit in
the General Counsel's and the Charging Party's ex-
ceptions regarding,the judge's dismissal of all the
8(a)(1) allegations, except the complaint allegation
that the Respondent threatened employees with
loss of wage increases.'
1. The judge found that the Respondent did not
violate Section 8(a)(1) of the Act when its agents
questioned employees about the Union during the
1 The judge found, and we agree, that the General Counsel failed to
produce sufficient evidence to support the complaint allegation that the
Respondent threatened employees with loss of wage increases if they
elected the Union The credited evidence indicates that the statement on
which the General Counsel relied was that the grant of a wage increase
in February would depend on whether the Union won because, if the
Union won, the matter would have to be negotiated This is merely a
truthful statement concerning a postelection grant of a wage Increase
unless the increase in question was in the nature of a predetermined, fixed
benefit that the Respondent would be able to grant unilaterally See
Goodman Holding Co., 276 NLRB 935 (1985) We find that the General
Counsel failed to produce sufficient evidence that the wage increase was
fixed in time and amount and therefore failed to prove that the statement
was unlawful
Member Johansen would find the Respondent's threat unlawful based
on uncontradicted testimony that Plant Manager Roy Long told approxi-
mately 30 employees, during a speech 2 weeks prior to the election, that
wage increases already in the budget for February might not be granted
if the Union won the election Member Johansen would find that the
wage increases, customarily given in February, were fixed in time and
amount and the Respondent's threat to deviate from the status quo violat-
ed Sec. 8(a)(1) NLRB v Katz, 369 U S 736 (1962)
preliminary phase of a polygraph test administered
in the course of a drug investigation at the Compa-
ny.
In October 19842 William Lowery, the Respond-
ent's assistant director of corporate loss prevention,
began investigating the use and distribution of
drugs on the Company's premises. Lowery ques-
tioned employees Dewey Brock and Randy Taylor
concerning their alleged involvement with drugs
on company property. At Lowery's request, they
gave sworn statements denying any illegal activities
and agreeing to submit to polygraph examinations.
Fact Finders Inc., a polygraph testing company,
was hired to administer the lie detector tests to sus-
pected employees, including Brock and Taylor.
On 15 October management officials escorted
Brock to the corporate loss offices where the poly-
graph testing was to be conducted. Lowery left the
examining room after introducing Brock to Chief
Examiner Selby Moody.3 According to Brock's
credited testimony, before being connected to the
polygraph machine, Moody questioned him about
the Union. Moody asked Brock, "Are you aware
of the union activities at Southwire?" and stated,
"This is strictly off the record." Moody further in-
quired, "[D]id you sign a union card?" and "[D]id
you wear a badge all the time and did you try to
promote the Union?" Brock affirmatively respond-
ed that he signed a union card, but stated that he
wore a union'badge only occasionally. Brock also
stated that although he did not solicit authorization
cards daily, his-coworkers were aware of his union
support. Brock then told Moody, "[D]on't you
think it looks .kind of funny that 90 percent . . . of
the people . ' .. that you have called over here on
your drug questioning just happened to be union
supporters." Moody laughed, stating the Union had
nothing to do with his questioning.
Brock was then connected to the polygraph ma-
chine and questioned about drug-related matters.
When the 2-hour examination was completed,
Lowery returned to the examining room to discuss
the test results with Moody.
On 16 October polygraph examiner Fred Ford,
also an admitted agent of the Respondent, ques-
tioned Taylor about the Union during the prelimi-
nary phase of the polygraph examination. Ford
asked Taylor if he was active in the Union as a
cardsigner and distributor of union literature.
2 All dates are in 1984 unless otherwise stated.
a The parties stipulated that the Respondent hired the polygraph exam-
iners to investigate drug use by employees on company property. The
judge concluded that the polygraph examiners were agents of the Re-
spondent and that the Respondent was responsible for their conduct
during the administration of the polygraph examinations No exceptions
were taken to these findings
282 NLRB No. 117
SOUTHWIRE CO. 917
Taylor responded affirmatively to both questions:
Ford then stated, "This is beside the point. You're
here for the drug situation at CDS." Taylor was
then linked to the polygraph machine and interro-
gated about selling and using drugs on the Compa-
ny's premises. Taylor was given a total of three ex-
aminations and each time Lowery was summoned
into the office and informed of the results. On one
occasion Lowery asked Taylor what he was hiding
and why he was afraid. Taylor replied he was
afraid of losing his job.
The judge found that the Respondent's question-
ing of Brock and Taylor did not violate Section
8(a)(1) of the Act, concluding that 'the union in-
quiries were made during the preliminary phase of
the test, which he determined was noncoercive.
The judge also found that, because Moody and
Ford were the Respondent's limited agents con-
ducting a drug probe, and not supervisors, employ-
ees Would identify them with the drug investiga-
tion and not with employees' union activities.
We disagree and find the judge misapplied the
basic test for evaluating interrogations , which is
"whether under all the circumstances the interroga-
tion reasonably tends to restrain, coerce, or inter-
fere with rights guaranteed by the Act."4
Here, management requested that Brock and
Taylor submit to polygraph examinations after they
gave sworn statements denying their involvement
with drugs on company premises. On the examina-
tion days they were escorted to management's of-
fices where the testing lasted approximately 2
hours , following which management conferred
with the examiners about the results. In this appre-
hensive and unusually formal setting the employees
were questioned about their union, activities. The
judge disregarded the coercive atmosphere created
by the polygraph testing merely because the em-
ployees were not questioned about the Union while
connected to the polygraph machine . This factor,
however, does not preclude the finding of a viola-
tion.5
Moreover, the agents' questions cannot be char-
acterized as innocuous or unobtrusive. The em-
ployees were asked not only whether they support-
ed the Union, but also to what extent. The agents
asked Brock and Taylor whether they "promoted"
the Union or distributed union literature. The infor-
mation sought was therefore aimed at discovering
the extent of Brock's and Taylor 's union involve-
4 Rossmore House, 269 NLRB 1176, 1177 (1984), enfd. sub nom Hotel
& Restaurant Employees Local 11 v. NLRB, 760 F 2d 1006 (9th Cir 1985)
s See Glazer 's Wholesale Drug Co., 152 NLRB 467, 475-478 ( 1965),
enfd. 368 F 2d 1005 (5th Cir 1966), in which the Board found that an
employee was coercively interrogated about his union support both prior
to and following a'lie detector test . The test itself was restricted to ques-
tions concerning a work-related accident.
went and, as such, could reasonably be seen as a
basis to initiate action against them.'
The judge also erred by discounting these prob-
ing union inquiries because Moody and Ford were
agents with limited authority to conduct a drug in-
vestigation for the Respondent. Special agents with
limited authority who engage in unlawful interro-
gations do not -immunize the Respondent from li-
ability. Gourmet Foods, 270 NLRB 57&,, 610-611
(1984). Asking employees about the extent of their
union activities and sympathies reaches the core of
employees' protected rights under the Act, and the
coercive nature of such questions cannot be dissi-
pated because "special agents" and not supervisors
do the interrogating. The totality of the circum-
stances, therefore, dictates a finding that the ques-
tioning of,Brock and Taylor was coercive and vio-
lative of Section 8(a)(1) of the Act.
2. The judge further found that Shift Foreman
Harold Hudson,,who supervises approximately 11
employees in the multiplexing department at the
utility plant, did not threaten employees with re-
prisals for their union ,support in violation of Sec-
tion- 8(a)(1) of the Act. We disagree.
Employee Betty Eason 'stated that in August?
Supervisor Hudson approached her and employee
Darlene Holland during their lunchbreak and
stated he would accompany them to see Grady
Sain, in the employee relations office, if they de
sired to "take off their badges, apologize, and clear
their records."8 Hudson explained that whenever
there was a layoff the Company' checked the em-
ployees' records. Eason then asked Hudson wheth-
er the Company' would check her record in the
event of a layoff and, , noting she wore a union
badge, `lay her off. Hudson responded, "Betty, you
know how Southwire is."
Although the judge credited Eason's testimony,
he dismissed the. 8(a)(1) allegation, finding that
Eason and Hudson had jokingly conversed about
the Union and that the conversation at issue was
"an innocent discourse between a friendly supervi-
sor and an equally friendly employee." He further
concluded that the conversation's content did not
"rise to the level of an 8(a)(1) threat of layoff' be-
cause Hudson did not expressly, threaten to lay off
employees who wore union badges or expressly
ratify such a statement.
The judge applied an erroneous legal standard
for determining whether the Respondent violated
6 Kona 60 Minute Photo, 277 NLRB 867 (1985)
' At the hearing the complaint was amended from 21 September to 28
August, reflecting the date of this incident
8 Eason had worn a union badge since September 1983 and distributed
union literature on company premises Holland also frequently wore a
union badge
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(a)(1) of the Act. The Board has long
held that the test, is whether "the supervisor's con-
duct reasonably tended to interfere with the free
exercise of the employees' rights under the Act."
Hanes Hosiery, 219 NLRB 338 (1975). Further-
more, the Board has recently reiterated that "a su-
pervisor's statements concerning an employee's
union activities can be coercive despite the friendly
relationship between the individuals and the well-
intentioned nature of the statements." Trover Clinic,
280 NLRB 6 fn. 1 (1986). Here, Hudson' s statement
to employees that they "take off their badges,
apologize, and clear their records" clearly con-
veyed to Holland and Eason, who openly support-
ed the Union, some risk in wearing their union but-
tons . We agree with the General Counsel that this
statement standing alone constituted an implied
threat of reprisal for engaging in union activities.9
Hudson went further by adding that employees'
records would be checked in the event of company
layoffs. The statements together suggested that
those who openly supported the Union could
evade layoffs by confessing to a change of mind.
Contrary to the judge, we conclude that these
comments could reasonably tend to interfere with
the free exercise of employee rights and violated
Section 8(a)(1) of the Act.
3. The judge also found that Hudson did not vio-
late Section 8(a)(1) on 21 November when, after
remarking to employee David Blair that certain
cross-training would be beneficial to him, he
tapped on employee David Blair 's union button
saying, "[A]s 'soon as you take care of this, you'll
make a good crew chief." Blair laughed, replying
he was not interested in becoming a crew chief.
Hudson and Crew Chief Glenn Robinson, who ac-
companied him, also laughed. The judge dismissed
the allegation, concluding that Blair's laughter indi-
cated he had an open relationship with Hudson and
also that they on occasion "cast aspersions at each
other's allegiances in a friendly and joking
manner." The judge characterized the above
remark as a nonthreatening aspersion.
The judge erred in according determinative
weight to the joking manner in which the Hudson
comment was made.10 We find that Hudson' s state-
9 See Daniel Construction Co., 264 NLRB 569, 601 (1982), enfd. 731
F.2d 191 (4th Cir. 1984) (supervisor' s statement referring to unspecified
"best interests" of employees who retrieved their signed union cards vio-
lated Sec 8(a)(1)), Harrison Steel Castings Co, 262 NLRB 450, 463
(1982), enfd 728 F 2d 831 (7th Cir 1984) (supervisor's statement implied
that employees wearing a union button had cause for alarm)
io See Champion Road Machinery, 264 NLRB 927, 932 (1982), in
which the Board found a supervisor's statement violated Sec 8(a)(1) of
the Act although the threatened employee testified he felt certain the
comment was a joke . Applying an objective standard , the Board found it
was reasonable to expect the threat would have an inhibiting effect
ment, coupled with the tapping of Blair 's union
button, clearly indicated that Blair's union activities
would have a negative affect on his chances to be
promoted to crew chief. Such a threat of loss of
job opportunities would plainly tend to interfere
with the free exercise of employee rights, and we
conclude that it violated Section 8(a)(1) of the
Act. 111
4. Finally, the judge credited Blair's uncontro-
verted testimony that, during a late November con-
versation with Hudson in which Blair asked
Hudson if he had heard the "lie" that when the
Union came in, the Respondent would close down
to evaluate all jobs before reaching agreement,
Hudson replied, "No," but explained that he had
been told in a meeting that "when the Union came
in, they'd have to go on strike, and when it did,
when the turnstyle [sic] hits [the employees] in the
fanny, that [they] would be replaced." Hudson
added that the Respondent had stockpiled wire for
use by supervisors during a strike and that 200 em-
ployees had been hired at the Respondent's Con-
necticut plant to take up any slack in work.
The judge found that the foregoing conversation
"was nothing more than an attempt by two individ-
uals to jawbone a one -up-man-ship situation on the
other." Contrary to the judge, we find that Hudson
threatened Blair that a strike would be inevitable if
employees selected the Union as their bargaining
representative. We conclude that the statement
constitutes a violation of Section 8(a)(1) of the
Act.12
'A Hanes Hosiery, supra, Premier Rubber Co., 272 NLRB 466, 471-472
(1984) (supervisor told employee if not for his union badge he would be
considered for a foreman 's position , employee replied he would rather
wear union badge); and National Southwire Aluminum , 247 NLRB 1315
(1980), modified on other grounds 662 F 2d 446 (6th Cir . 1981) (supervi-
sor tapped employee's union button and made a comment indicating em-
ployee's union activities would have a negative affect on chances of reas-
signment).
12 See Louis Gallet, Inc, 247 NLRB 63, 66 (1980), enfd. mem 642 F.2d
443 (3d Cir. 1981).
Because there is no factual dispute regarding the conversation, which
issue was fully litigated at the hearing and is related to other allegations
in the complaint, we shall find and remedy this unlawful conduct, al-
though not specifically alleged as a violation in the complaint Crown Zel-
lerbach Corp, 225 NLRB 911, 912 (1976), Alexander's Restaurant &
Lounge, 228 NLRB 165, 166 (1977), enfd 586 F.2d 1300 (9th Cir. 1978).
The judge found that the Respondent did not violate Sec. 8(a)(1) of the
Act based on Hudson 's conversation with Eason in which Hudson alleg-
edly indicated that he thought there would be a strike because the Re-
spondent's president would not negotiate with the Union In so doing, the
judge, although noting that Hudson denied , inter alia, making the "won't
negotiate" remark, expressly declined to make credibility resolutions re-
garding the conflicts in testimony We find it unnecessary to pass on this
conversation. Thus, in view of our finding that Hudson unlawfully
threatened Blair that a strike was inevitable if the employees selected the
Union as their bargaining representative , the finding of any additional
violation based on Hudson 's conversation with Eason essentially would
be cumulative and would not materially affect our Order
SOUTHWIRE CO. 919
CONCLUSIONS OF LAW
1. The Respondent, Southwire Company, is an
employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. United Steelworkers of America, AFL-CIO is
a labor organization within the meaning of Section
2(5) of the Act.
3. By interrogating its employees concerning
their union activities, sympathies, and desires, by
threatening employees with possible layoffs and the
risk of denial of promotions, by threatening not to
bargain in good faith if its employees, 'selected the
Union to represent them, thereby forcing a strike,
and by threatening an employee with the inevitabil-
ity of a strike, the Respondent has violated Section
8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
"Appendix."13 Copies of the notice, on forms pro-
vided by the Regional Director for Region 10,
after being signed by the Respondent's authorized
representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60
consecutive days in conspicuous places including
all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the
Respondent to ensure that' the notices are not al-
tered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
13 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
THE REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order that
it cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies
of the Act.
ORDER
The National Labor Relations Board orders that
the Respondent, Southwire Company, Carrollton,
Georgia, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Coercively interrogating employees regarding
their union activities, sympathies, and desires.
(b) Threatening employees with layoffs for en-
gaging in activities on behalf of the Union.
(c) Threatening employees that they are being
denied promotions or are risking denials of promo-
tions if they join or engage in activities on behalf
of the Union.
(d) Threatening employees with the inevitability
of a strike if the Union is selected as the collective-
bargaining representative of the Respondent's em-
ployees.
(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Post at its place of business in Carrollton,
Georgia, copies of the attached notice marked
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT coercively interrogate our em-
ployees regarding their union activities, sympathies,
and desires.
WE WILL NOT threaten our employees with lay-
offs for engaging in activities on behalf of the
Union.
WE WILL NOT threaten our employees that they
risk denial of promotions if they join or engage in
activities' on behalf of the Union.
WE WILL NOT threaten our employees with the
inevitability of a strike if they select United Steel
Workers of America, AFL-CIO as their, collective-
bargaining representative.,
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
SOUTHWIRE COMPANY
E. Walter Bowman, Esq., for the General Counsel.
Robert J. Martin Jr., Esq. (Elarbee, Thompson & Trap-
nell), of Atlanta, Georgia, and John C. Stephens, Esq.,
of Carrollton , Georgia, for the Respondent.
Robert S. Sarason, Esq., of College Park, Georgia, for the
Charging Party.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
ROBERT A . GRITTA, Administrative Law Judge. This
case was tried before me on 20 February 1985 in Carroll-
ton, Georgia, based on a charge filed by United Steel-
workers of America , AFL-CIO (the Union) on 3 De-
cember 1984 and a complaint issued by the Regional Di-
rector for Region 10 of the National Labor Relations
Board (the Board) on 16 January 1985 .1 The complaint
alleges that the Southwire Company (Respondent) vio-
lated Section 8(a)(1) of the Act by coercively interrogat-
ing employees and threatening employees with reprisals
for engaging in union activity . Respondent's timely
answer denied the commission of any unfair labor prac-
tices.
All parties were afforded full opportunity to be heard,
to examine and cross -examine witnesses, to introduce evi-
dence, and to argue orally . Briefs were submitted by the
General Counsel and Respondent on 25 March 1985.
Both briefs were duly considered.
On the entire record in this case and from my observa-
tion of the witnesses and their demeanor ' on the witness
stand, and on substantive , reliable evidence considered
along with the consistency and inherent probability of
testimony, I make the following2
FINDINGS OF FACT
1. JURISDICTION AND STATUS OF LABOR
ORGANIZATION-PRELIMINARY CONCLUSIONS OF
LAW
The complaint alleges, Respondent admits, and I find
that Southwire Company is a Georgia corporation en-
gaged in the manufacture , sale, and distribution of wire
cable and related products in Carrollton , Georgia . Juris-
diction is not in issue . Southwire Company , in the past
12 months, in the course and conduct of its business op-
erations , shipped products from its Carrollton facility
valued in excess of $50,000 directly to points located out=
side the State of Georgia . I conclude and find that
Southwire Company is an employer engaged in com-
merce and in operations affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The complaint alleges, Respondent admits, and I con-
clude and find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
i All dates are in 1984 unless otherwise specified.
2 The General Counsel's reference in beef to Respondent's past unfair
labor practice history apparently suggests the history as background As
background, the history cannot be the basis for finding an unfair labor
practice Thus, I will not infer coercion, restraint, or interference from
any official notice of past practices. The General Counsel has the burden
to prove her complaint allegations by affirmative evidence of record.
However, I will consider the history of unfair labor practices by Re-
spondent in fashioning a remedy for any unfair labor practices found.
Notwithstanding Respondent's reliance on the Board's Statements of Pro-
cedure, Sec 101 10(b)(3), there is no provision for reply briefs in the
Board's Rules and Regulations. Therefore, Respondent's reply brief and
attached chart A received on 10 April 1985 are not a part of this record
for any purpose.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Pertinent testimony of witnesses is detailed below:
William J. Adams, a 7-1/2-year employee in the West
Mill, testified that Southwire's past wage policy included
two wage increases a year. Customarily, the increases
occurred in February and October. In December an elec-
tion was scheduled and on 30 November a company
meeting was held in the training room of the mill.
Adams and his coworkers on the third shift in the strand-
ing department and employees of several other depart-
ments attended the meeting, which started at 11:30 p.m.
Approximately 30 employees were in the audience. Ray
Long, plant manager, spoke to the employees during the
45-minute meeting, which Adams said was devoted to
the union campaign. Long told the employees that the
wage increase for 1985 was already in the budget for
February but, if the Union came in, the wage increase
could not be guaranteed. Long stated that there could
not be a guarantee because, if the Union won, there
would have to be negotiations with the Union. The pro-
spective wage increase was only mentioned one time
during Long's talk. No other management official spoke
to the employees.
Douglas Wigginton, crew chief in the stranding de-
partment on the second shift, testified that he attended
the company meeting of employees about a week before
the scheduled election. The meeting was held in the
West Mill training room between worktimes for the
second shift and swing shift. Twenty to thirty employees
were present and Ray Long spoke to the employees
about the Company's dealing with the Union if the
Union won the election. At one point in the speech,
Long said an employee wage increase scheduled for Feb-
ruary may not be granted if, the Union came in . Long did
not say the wage increase was or was not guaranteed.
Long did say if the Union won the election there would
be negotiations with the Union. Long was the only
speaker at the meeting, which lasted approximately 45
minutes.
Betty J. Eason, a 10-year employee in the multiplex
department of the West Mill, worked on the first shift
under the supervision of Harold Hudson. She testified
that in August her lunchtime was 12 to 12:20 p.m. and
she ate each day at the scales with Darlene Holland, the
scale operator. The last week in August, while she and
Darlene were eating lunch, Hudson came to them and
said he would go with them to Grady Sain's office if
they wanted to take off their badges, apologize, and
clear their record. Eason asked, what record he was talk-
ing about. Hudson said whenever there was a layoff the
Company checked the employees' records. Eason told
Hudson, "Well, what you're telling me Harold, is that if
they come down to a layoff, they'll go back and look at
my record to see that I'm wearing a union badge and I'll
be laid off." Hudson responded, "Well, Betty, you know
how Southwire is." Eason replied, "Yes, I know how
Southwire is. But, I want to tell you that if I'm laid off
they'd better lay somebody off with less seniority than
I." At this point Darlene got mad and said, "Who gives
a damn about Southwire's record against them ." Hudson
told Darlene, if she was going to get smart, he would
SOUTHWIRE CO.
leave, and he did. Eason stated that Grady Sain was the
head of employee relations at one time . Two employees
in the department , Eason and David Blair, wore union
badges, but Blair had taken - his off. Some employees
wear Steelworkers hats and some wear Southwire hats.
On occasion , jokes were made about the union badges
worn by employees and in the 1-1/2 years that Eason
wore her union badge she had remarks made about it.
Hudson on one occasion, when Eason also wore a rose
pinned to her person , told Eason the rose looked better
than her badge.
Eason had seen groups of people escorted through the
mill over the years by company executives . Usually
when Eason asked who the groups were , she was told
they were salesmen . School children also got guided
tours through the mill. The last week in November a
group of men wearing new Southwire hats were escort-
ed through . Eason was working close to Hudson's desk
where Hudson and Crew Chief Glenn Robinson were
talking. Eason asked Hudson who the group of men
were and Hudson replied that they were replacements
for the union employees who go out on strike. Eason
asked Hudson why he thought any employees would go
out on strike. Hudson said because Roy would not nego-
tiate with the union employees. Hudson added that he,
Robinson, and office employees would be brought out to
run the machines in Eason 's department . Then Hudson
and Robinson both laughed and walked off. Eason ad-
mitted that she sometimes joked with Hudson during the
workday . Albeit since December, she has not joked with
him. Eason also stated that Southwire has never brought
new employees in a group through the mill.
William David 'Blair, a multiplex operator on the first
shift, has worked 5 years for Southwire. Blair testified
that he bid for the metroplex job in the West Mill in
August 1984 . He had been wearing union emblems on his
work clothes for approximately a year when he signed
the bid sheet. The metroplex job was more pay and a
better job . When working in the West Mill he was super-
vised by Harold Hudson. On several occasions in No-
vember he was temporarily assigned ' to different jobs
while his regular machine was down . Blair continued
wearing his jacket with union emblems on it while work-
ing, On one temporary job the last workday before
Thanksgiving , Hudson was discussing the work with
Blair and stated , "David , this cross-training will be good
for you." Hudson then tapped Blair'ss "proud to be
Union" button and said, "[A]s soon as you take care of
this, you'll make a good crew chief." Blair laughed and
replied that he did not want to be a crew chief. Crew
Chief Robinson , who was nearby, also laughed. A crew
chief position opened during the previous month and, al-
though Blair was qualified , he did not bid on the posi-
tion . A week later at Blair 's machine there was a conver-
sation with Hudson. Blair began the conversation asking
Hudson if the Southwire supervisors were told the same
lie that CDS supervisors were told, i.e., when the Union
came in the Company would have to close down to
evaluate all the jobs before any agreement could be
reached . Hudson said , "No," but he had been told that,
when the Union came in, it would have to strike and,
when the turnstyle hits the employees in the fanny, they
921
would be replaced . Hudson told Blair that the wire was
being stockpiled to tide the Company over during a
strike and to facilitate supervisors doing the production
work while the employees were out. Hudson mentioned
that at Southwire 's Connecticut plant 200 employees had
been hired to take up any slack in the work . Blair said he
did not see any reason for a strike when the Union came
in. Hudson responded that he did not want to , discuss it
anymore and walked off.
Dewey A. Brock testified that he was an electrician in
the maintenance department of the copper division. Pur-
suant to an investigation of drug usage on company
property, Brock was requested by Bill Lowery to give a
written statement about his drug use and to submit to a
polygraph test . Brock , on 10 October, gave a statement
to Lowery denying his use or distribution of drugs on
company property . Several days later , Brock was given
the polygraph examination by Selby Moody. During the
preliminaries to the actual polygraph , Moody asked
Brock many questions about drugs. At some point in the
drug questioning , Moody asked Brock questions about
union activities . Brock testified:
Well, he'd been interrogating me about drugs and
drug use, which I denied everything, even to the
previous meeting.
And he said, "Well, let me"-he said , "Are you
aware of the union activities at Southwire?" He
said, "This is strictly off the record ." As soon as he
mentioned it, he said, "This is strictly off the
record."
I said , "Yeah, I'm aware of the union activities at
Southwire. I signed a union card . You know, I'd
kind of like to see it go through. It'd just help the
working conditions . You know, if not the pay, it'd
at least bring the working conditions up."
And then he said, "Well, did you sign a union
card?"
I said , "Yes, I signed a union card."
He said , "Well, did you wear a badge all the time
and did you try to promote the union?"
I said , "Well, everybody I work with knows I
was pro-union." I said, "I've wore a badge a few
times." I didn't wear one every day and I didn't try
to get everybody [to] sign cards every day , but the
people that I worked with were very aware that I
was pro-union.
And then he said , "Well, this doesn't really have
anything to do with why I'm here. I'm here to ask
you questions about drug use at Southwire, on
property or company time."
And then I asked him-I looked at him and I
asked him a question . I said , "Well, don't you think
it looks kind of funny that 90 percent"-I said, "I
don't know exactly who all you 've had over here,
but 90 percent of the people that I know that you
have called over here on your drug questioning just
happened to be union supporters."
He kind of laughed a little bit, and he said,
"Well, that doesn't have anything to do with what
I'm doing here," and basically that's about all he
said about the union.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brock's polygraph findings were inconsistent with his
first written statement for Lowery but in a second writ-
ten statement for Lowery, Brock admitted to use, sale,
and distribution of drugs on company property.
Randy Lee Taylor testified that he worked 8 years in
the bed yard of the copper division on the first shift until
he was discharged on 17 October. Prior to his discharge,
he reported to Bill Lowery's office as ordered. Lowery,
the head of corporate loss, told Taylor he was sum-
moned because of the drug problem in the plant. Lowery
wanted a signed statement from Taylor that he did not
use drugs and wanted Taylor to report the following day
for a polygraph examination . Taylor did not object to
giving a statement or taking the polygraph . His state-
ment said he did not possess or use drugs on company
property. The next day, Taylor appeared for his poly-
graph wearing his union button, which he had worn on
the job since April 1983. Examiner Ford, during the pre-
liminary examination before the employee is hooked to
the machine, asked Taylor if he was active in the Union
as a cardsigner and distributor of leaflets. Taylor replied
that he was active in both. Ford then said the Union was
beside the point because the examination was to deal
with the drug situation in the "copper division." Taylor
subsequently gave a second signed statement to Lowery
in which he admitted lying about using drugs in his first
statement. Taylor admitted he lied because he was afraid
of losing his job if he answered truthfully.
Ray Long, plant manager of the utility plant, testified
that he gave 18 or 19 speeches to cover all his employ-
ees. The speeches lasted approximately 20 minutes and
dealt with the union campaign. 'In each meeting, wage
increases were mentioned. Long testified that in each
meeting he spoke without the aid of a text but rather
used cue cards he prepared . His remarks about wage in-
creases were:
I said that Southwire Company usually gave wage
increases twice a year, in February and in August,
that I didn't know for certain, but that I expected
that a wage increase would be given in February of
1985. I stated that if the majority of the employees
voted for the union to represent them, then they
were authorizing the union to be their bargaining
agent and that Southwire Company could not make
any, changes in wages or benefits without the ap-
proval of the union, that there would have to be a
joint, mutual agreement between the company and
the union before any changes could be made in
wages or benefits.
Harold Hudson, shift supervisor in the multiplexing
department for 18 years, testified that employee Bobby
Bran had come to him asking what could be done about
his having signed a union card. Hudson referred Bran to
the employee relations office. Hudson later explained, to
Eason and Holland that anyone could pull off their union
badges and have a talk with employee relations person-
nel like Bran did. Hudson recalled telling Eason and
Holland that they would look better with a, rose pinned
to their blouse rather than a union badge. Hudson's con-
versation took place at the scales, but he could not recall
how the conversation started. Hudson denied asking
Eason and Holland to take off their union badges and
apologize or to go to Grady Sain's office with him.
Hudson also denied stating that the Company kept a list
of union supporters for use during a layoff.
Hudson could not recall the date, but he did recall a
group of people being toured through the plant. Hudson
could not recall a discussion with Eason about the group
and denied telling Eason the group was replacement em-
ployees for Eason and others if they went out on strike
or that- "Ray" would not negotiate with the Union.
Hudson stated that the group wore Southwire hats and
jackets, and he could have said, "[T]hat's our replace-
ments," or, "[T]hey're going to save Southwire," which
was common in the mill.
Hudson did temporarily reassign Blair before Thanks-
giving and talked with him about cross-training, , but
denied any mention or gesture related to his union
badge. Hudson told Blair when he first came to Hud-
son's shift that the union badge worn by Blair showed he
represented the Union. Hudson also told Blair that, in his
opinion, a union could not help the employees at South-
wire. Hudson could not remember any conversation with
Blair the last week in November. The three employees in
his department who have always worn union badges are
Betty Eason, Darlene Holland, and David Blair. Hudson
stated that no employees in his department initiated or
engaged him in any discussions about the merits of un-
ionism.
William E. Lowery, assistant director of corporate loss
prevention, testified that he hired the Fact Finders com-
pany to give polygraph examinations to Southwire em-
ployees as part of the Company's investigation of drug
use, possession, and sale on company property. Lowery
told the Fact Finders company that Southwire wanted to
know who was using, possessing, and selling drugs on
company property. Each employee to be examined was
discussed by Lowery and the examiner based on what
knowledge the Company already had. Lowery helped
formulate 'questions for the examiner but the actual test-
ing was left to the examiner. The testing occurred in an
empty office adjacent to Lowery's office and was per-
formed with only the examiner and the employee
present. Any conclusion by the examiner that an employ-
ee was not being candid during, the test was reported to
Lowery and was in some instances cause for further test-
ing. Each employee is routinely asked to sign a release so
that results of the examination can be furnished to the
Employer.
Selby G. Moody, a licensed polygraph examiner,, testi-
fied that he administered the test to Dewey Brock re-
garding the drug investigation conducted by Southwire.
Moody spent an hour and 20 minutes, in the preliminary
background phase with Brock before actually giving him
the polygraph. After the entire test was completed, the
results were furnished to Lowery including the signed
written statements secured by Moody from Brock.
Moody specifically denied asking Brock any questions
concerning Brock's union sympathies or union activities.
Moody did not recall seeing any union insignia displayed
on any employees he examined.
SOUTHWIRE CO.
Fred Ford, a licensed polygraph `examiner,' testified'
that he administered a test to Randy Taylor in conjunc-
tion with Southwire's investigation of drug use by em-
ployees on company property. Ford stated that Taylor
did not display any union insignia at the time of the test-
ing. Ford further stated that he did not question Taylor
about his union activities. nor about union activities of
other employees. Ford did obtain a written statement
about drug use from Taylor -pursuant to the Fact Find-
ers' policy of recording any admissions obtained from ex-
aminees. Ford furnished the results of the test to Lowery
as the representative of Southwire.
Analysis and Conclusions
The General Counsel's complaint allegations involve
unlawful threats and interrogations. The interrogations
stem from several polygraph examinations given to se-
lected employees during a drug usage investigation. The
General Counsel contends that the two polygraph exam-
iners are agents of Southwire for whose conduct South-
wire is liable. Southwire management secured written
statements from employees admitting or denying drug
use on company property. Southwire then intended to
have polygraphs administered to verify the employees'
statements. The parties stipulated that Southwire hired
the polygraph examiners to investigate the, usage of
drugs among employees on company property, South-
wire both intended and did utilize the examiners' exper-
tise to conduct employee examinations and to report on
test results. As each employee was prepared for the ex
amination, he was introduced to examiners Moody and
Ford by management. The employees were examined
and evaluated by Moody or Ford. Any negative results
from the testing were reported to Southwire and formed
the basis for discipline, including discharge.
Based on the record evidence, and including the par-
ties' stipulation, it is clear that Moody and Ford were
paid agents of Southwire with limited scope or purpose.
That limited scope or purpose was specifically to interro-
gate employees about their conduct on company proper-
ty unrelated to their work functions. Clearly both are
within the intendment of Section 2(2) and (13) of the
Act. Southwire is therefore responsible for their acts and
conduct engaged in during the ' administration of the
polygraph examinations.
Employee witnesses Brock and Taylor both testified
that during the ,preliminary phase (not hooked up to the
polygraph), examiners Moody and Ford asked several
questions about their individual union sympathies. The
preliminary phase is a warmup intended to relax and
expose the employee to the areas subject to polygraph
testing. Taylor had worn a union badge at work in
excess of 1 year and was wearing his union badge at the
time he was polygraphed. Brock, who on occasion wore
a union badge at work, apparently did not wear his
badge during the examination. Moody and Ford denied
interrogating any employee about union sympathies but
their denials employ subtle semantics associated with the
actual polygraph portion of the tests. The plausibility of
unions questions during the relaxation phase ofthe testing
is more believable than the denials of'Moody and Ford.
However, viewing the testing in a light most favorable
923
to the-General Counsel does not support an allegation of
coercive interrogation based on the language used. The
Board's most recent holding is explicated in Rossmore
House, 269 NLRB 1176'(1984). The basic test for deter-
mining whether interrogation violates the Act is wheth-
er, under all the circumstances, it reasonably tends to re-
strain, coerce, or interfere with- rights guaranteed by the
Act. Factors to be considered are background, nature of
information sought, identity of questioner, and place and
method of interrogation. The background for the tests
deals with drug usage . During the warmup phase, no ap-
parent information is being sought but rather a common
ground for employee and polygraph examiner is sought.
Moody and Ford are agents of Respondent, not supervi-
sors of employees, and are identified to the employees
with the extracurricular drug scene, not any other out-
side activity of employees. Although the place of interro-
gation, management spaces in management offices, satis-
fies the Board test in one particular; the method used is
less probative. It is clear that employees knew of the
drug investigation and in fact had some involvement. It
is equally as clear that the polygraph focused on the
prior written statements of drug usage by Brock and
Taylor and did not include the union activity of either
employee. Thus, the atmosphere of the interrogation
does not supply the necessary coercion to make out a
violation . Both the General Counsel and the Charging
Party argue that the involuntary nature of the polygraph
testing creates the coercive atmosphere needed to make
the interrogation unlawful. The General Counsel con-
tends that the forced application of the polygraph itself
produces a psychological coercion within which the in-
terrogation takes place and therefore the interrogation is
coercive. I disagree . As J read Rossmore and past cases
of interrogation as well, the atmosphere of coercion must
be identified with the guaranteed rights of employees
found in Section 7 of the Act. Coercion, bottomed on
any source, is not sufficient to withstand the Board's, de-
fined test. In my view, the coercion created by the poly-
graph examination is outside the purview of the Rog-
more test and therefore not probative of coercive interro-
gation violative of the Act. Accordingly, I conclude and
find that the interrogation of Brock and Taylor during
the preliminary phase of the polygraph examination was
not coercive and therefore did not violate Section 8(a)(1)
of the Act. I shall therefore dismiss paragraph, 8 of the
complaint. Though not a part of the determination, it is
not completely inconsequential that- the discharges of
Brock and Taylor resulting directly,'from the; polygraph
testings were not attacked by the General Counsel.
The General Counsel's, alleged threat of loss of wages
centers on a company speech given to, assembled em-
ployees by Roy Long, plant manager of the 'West Mill.
The testimony shows that the speech was given at a time
approximate to the scheduled election and dealt, in part,
with the role of negotiations if the Union won the elec-
tion. The usual wage increase granted in the spring was
mentioned one time in the speech. Employee witnesses
could not agree whether Long said the increase was
guaranteed or not but they did agree -that Long said
whether an increase was given or not could depend on
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union's status after the election. They further agreed
that Long said, if the Union won the election, there
would have to be negotiations with the Union.. Long tes-
tified that he told the employees that the Company could
not make any changes in wages or benefits without the
approval of the Union. Long spoke extemporaneously
using only note cards and neither he nor the employees
could recall with exactitude what was said. The record
testimony as it stands does not contain substantive evi-
dence to support the General Counsel's allegation that
Respondent threatened employees with a loss of wages if
they engaged in union activity. I therefore conclude and
find that Respondent has not violated Section 8(a)(1) of
the Act as alleged in paragraph, 9 of the General Coun-
sel's complaint.
Paragraph 10 of the General Counsel's complaint al-
leges a threat to lay off employees who engage in union
activities. The threat is alleged to have occurred during
a lunchtime conversation between two prounion employ-
ees and their shift supervisor. According to the General
Counsel's witnesses, the alleged threat was actually
framed during the conversation by one of the employees,
Eason. Eason admittedly spoke openly of her union af-
filiation and did not shy away from discussions about the
Union or her sympathies. She was one of the most
ardent of supporters and was one of three union badge
wearers in her department. Lunchtime conversations
were common and a union discussion during lunch was
not uncommon. Eason clearly recalled that Supervisor
Hudson said 'employees sporting badges could remove
the badge, apologize, and clear their record. Hudson re-
calls relating the incident of Bobby Bran being referred
to'the employee relations office in an attempt to recover
his signed union card to Eason and Holland. Remarks
about union badges being worn were not uncommon and
all witnesses couldrecall a reference'to a more pleasing
appearance of a rose pinned to a lady rather than a union
badge. Clearly, albeit the employees' union badges may
have been a topic of discussion, there is no evidence that
their presence on employees caused any other concern.
Eason attributes to Hudson a statement that whenever
there was a layoff, the Company checked the employees'
records. Eason then contributed the language to conver-
sation that the General Counsel complains of, namely, if
it comes to a layoff, the Company will look at employ-
ees' records to determine whether they wore a union
badge and if so the employee would be laid off. Hudson
only answered, "[T]hat's how Southwire is." It is clear
from the record that Eason and Hudson engaged in
joking conversations about the Union among other
topics. It is also clear that Hudson did not state the em-
ployees wearing union badges would be selected for
layoff nor did he ratify such a statement. I credit Eason
and her recall' of part of the conversation but I find the
conversation to be an innocent discourse between a
friendly supervisor and an equally friendly employee. I
do not conclude nor do I find that the content of the
conversation rises to the level of a threat of layoff for
union sympathy. I do conclude and find that Respondent
has not violated Section 8(a)(1) of the Act as alleged in
paragraph 10 of the complaint. I, therefore, shall dismiss
the allegation as unsupported by record evidence.
The General Counsel . further alleges a threat of loss of
promotions for employees openly displaying a union af-
filiation . The encounter relied or} by the General Counsel
is between Shift Supervisor Hudson and an open union
adherent, David Blair . Blair has worn a union button at
work in excess of 1 year and during that timeframe has
bid for and received a better job with more pay under
Harold Hudson's supervision . Blair has no aspirations to
become a crew chief (leadman type status) and has never
bid for the position , although a crew chief position for
which he was qualified was open for bids within the last
several weeks before the conversation . Blair's recollec-
tion of the incident when Hudson tapped his union badge
and said, "as soon as you take care of this, you'll make a
good crew chief," resulted in Blair laughing and replying
that he did not want to be a crew chief. Obviously, Blair
saw nothing sinister in the gesture or the " remark. Blair's
reaction to the remark is more probative of an open rela-
tionship between employee and supervisor than the
remark is probative of a single threat . Blair's working re-
lationship prior to the remark and since the remark en-
hances the conclusion that no threat was made to Blair
by Hudson nor was a threat intended . I conclude and
find that Hudson and Blair openly discussed the Union as
well as other subjects and on occasion cast aspersions at
each other's allegiance ina friendly and joking manner. I
find that the remark about Blair's badge and his future
crew chief status , was one such aspersion . Moreover,
Blair 's version of the remark only qualifies Blair's effi-
ciency as a crew chief if he wore a union badge, not his
ability to attain the crew chief status. Accordingly, I
shall dismiss the allegation of paragraph 11 of the com-
plaint.
The General Counsel's final allegation centers on two
conversations between Hudson and two employees, Blair
and Eason . Blair initiated his conversation by asking
Hudson if Respondent had lied to its West Mill supervi-
sors as they had to the copper division supervisors. Blair
explained the lie was that , if the Union came , Southwire
would have to close down to evaluate all jobs before any
contract could be reached . Hudson's response was,
"No," but he was told that 'when the Union came in, it
would have to strike and when the turnstyle hits the em-
ployee in the fanny they would be replaced.' Hudson
then said that wire was being stockpiled in the advent of
a strike so , supervisors could do the production work.
Hudson could not recall the specific conversation and I
do not think Hudson was evading the testimony . Neither
do I think Blair 's testimony was anything but truthful. I
have no doubt , that the conversation took place, I only
doubt the significance of its substance . In my view, the
conversation is simply another attempt by an employee
to goad his supervisor over the Union and the supervi-
sor's attempt to even the score . Blair's initiation of the
discussion , partly , supports my conclusion, but even if
Blair had not broached the subject I would still conclude
and find that the discourse between Blair and Hudson in
late November was nothing more than an attempt by
two individuals to jawbone a one-upmanship situation on
the other.
SOUTHWIRE CO. 925
Hudson also figures in another conversation close ' in
time but with employee Eason . Eason asked Hudson
who certain people were touring the mill during working
hours . Hudson said they were replacements for the,strik-
ing employees . Eason asked why Hudson thought em-
ployees would go out on strike and Hudson said because
Roy would not negotiate with the union employees.
Eason knew that prospective employees do not tour the
mill and she admittedly joked with Hudson during work.
Hudson could only recall common talk in the mill refer-
ring to groups touring the mill as "that's our replace-
ments' or "they are going to save Southwire ." Hudson
denies any reference to specific employees going out on
strike or saying that Roy would not negotiate with the
Union . Hudson never identified "Roy" in the conversa-
tion, but Eason in response to a question from counsel
speculated that Hudson meant Roy Richards , president
of Respondent . Eason has , thus, once again supplied a
critical fact to the language relied on by the General
Counsel to show a violation . The credibility of the wit-
nesses is not an issue in my determination . I find that all
witnesses made a genuine attempt to recall the facts.
From all the evidence in the record respecting the atti-
tudes of employees to supervisors and vice versa, I can
Doily conclude and find that the General Counsel is rely-
ing on common ship talk in specific instances to support
the complaint allegations of threats against employees.
Absent the obvious basis for the remarks by both em-
ployee and supervisor , the substance of the remarks
standing alone would not be probative of a violative
intent or attitude . The General Counsel has ' simply failed
to show that the remarks relied on were grounded in
animus toward the Union or employees who supported
the Union and therefore coercive. The record actually
shows the opposite to be true. I shall therefore dismiss
paragraph 12 of the complaint as unsupported by the evi-
dence.
ADDITIONAL CONCLUSIONS OF LAW
1. The General Counsel has failed to sustain his burden
of proof for any allegation in the complaint.
2. Respondent has not , by the conduct of its agents,
Supervisors Roy Long or Harold Hudson or Selby
Moody or Fred Ford, violated Section 8(a)(1) of the
Act.
[Recommended Order for dismissal omitted from pub-
lication.]