Storer Communications, Inc.Download PDFNational Labor Relations Board - Board DecisionsNov 21, 1989297 N.L.R.B. 296 (N.L.R.B. 1989) Copy Citation 296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Storer Communications, Inc. and its Subsidiaries, Middlesex Cable Vision, Inc., Storer Riverfront Cable Communications, Inc., Futurevision Cable Enterprises, Inc., and CATV Service Company and Local 827, International Brotherhood of Electrical Workers, AFL-CIO. Cases 22-CA- 13569, 22-CA-13668, 22-CA-13669, 22-CA- 13844, and 22-CA-13845 November 21, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On April 16, 1986, Administrative Law Judge James F Morton issued the attached decision The General Counsel filed exceptions and a supporting brief, and the Respondent filed cross-exceptions, a supporting brief, and a brief opposing the General Counsel's 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, 2 and conclusions only to the extent consistent with this decision 'We grant the General Counsel s unopposed motion to correct the transcript to record the allegations of amended par 16 of the complaint as follows About January 15, 1985, Respondent, acting through Barbara Silk- worth at Respondent s Futurevision Cable Enterprises facility, sought to undermine the Union by (a) informing employees that the benefits en- joyed by nonunion employees were not available to employees represent- ed by the Union in Unit C, and (b) informing employees that Improved benefits could be available if the employees employed in Unit C were not represented by the Union 2 The Respondent has excepted to some of the judge s credibility find nip The Board will not overrule an administrative law judge's credibil- ity resolutions based on the demeanor of the witnesses unless the clear preponderance of all the relevant evidence convinces us that they are in- correct Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cif 1951) However, the Respondent correctly contends that, be cause the judge did not base his credibility determinations on demeanor, the Board may make Independent evaluations of credibility Such deter- minations are to be based on the weight of evidence, established facts, inherent probabilities, and reasonable inferences drawn from the record as a whole Vic Koenig Chevrolet, 263 NLRB 646 fn I (1982) We have carefully examined the record with a view to the above considerations, and we find no basis for overturning the judge's credibility resolutions We do not rely on the judge s finding, contained in fn 3 and in part II,B,9 of his decision, that the Respondent has a corporate policy of paying the same wages to employees of similar skills who work in a de- fined geographical area such as New Jersey The first sentence of part II,B,I of the judge's decision should begin, On 26 [not 20] March 1984 ' Part II,B,4,d of the decision should refer to employee George Cifuentes (not Fuentes) The first sentence of part II,C,8 of the decision should place Stephen Wydner s discharge in July 1985 (not 1975) In part II,B,10 the judge stated that all the employ- ees polled by the Respondent indicated that they no longer desired union representation Actually, one employee voted in favor of the Union None of these inadvertent errors affects the decision in this case 297 NLRB No 43 1 We affirm the judge's finding that certain statements by Respondent's officials to technical employees at Willingboro violated Section 8(a)(1) of the Act by implying that they would not receive raises and promotions because they had chosen to be represented by the Union 3 We find no merit, however, in the General Counsel's contention that those statements violated Section 8(a)(5) as well Those statements, though unlawful, were made in the context of ongoing negotiations , between the Respondent and the Union The Respondent bar- gained in good faith and is not even alleged to have engaged in surface bargaining None of the credited testimony indicates that the Respondent sought to evade its duty to bargain with the Union by dealing directly with employees 4 2 The judge correctly found that the Respond- ent's September 1984 revision of its drug/alcohol policy was a mandatory subject of bargaining Johnson-Bateman Go, 295 NLRB 180 (1989) How- ever, we disagree with his finding that the Re- spondent's unilateral change in its drug/alcohol policy did not violate the Act because the Re- spondent bargained with the Union over the change before it was implemented The judge relied on the fact that, even though the revised policy was announced to employees as effective im- mediately, "none of the employees in any of the units were subjected to the operations of the revised policy until about ten months later" Al- though we do not wish to quibble over the precise meaning of "implemented" in this context, it is plain that the Respondent here announced in no uncertain terms that, as of the date of its notice, its 3 We do not rely on the judge s remarks in part II,C,3 of his decision concerning the applicability of SCA Services of Georgia, 275 NLRB 830 (1985) However, we reject the Respondent's contention that that case re- quires a finding that the statements in question were lawful In SCA Serv- ices, the employer s plant manager told an employee that unit employees had not received a retroactive pay raise because the union s representa tive had failed to 'settle the contract' some months earlier Because the employees had voted to reject the employer's wage offer, including a ret- roactive raise, the employees knew the real reason they had not received retroactive raises—viz, that the employees themselves had rejected the employer s offer Under those circumstances, the Board found the plant manager's statement not to have violated Sec 8(a)(1) Id at 835 Here, by contrast, the Union had rejected the Respondent's initial wage offer, pre- sumably in an attempt to induce the Respondent to offer a more attrac- tive package The Union, in other words, apparently was representing the technical employees in a manner that It hoped would produce a more ac- ceptable contract than the Respondent had proposed Under those cir- cumstances, the Respondent's attempt to place on the Union the onus for the employees' not having received merit raises was a violation of Sec 8(a)(1) 4 The cases cited by the General Counsel in support of this contention are inapposite In Alpha Cellulose Corp, 265 NLRB 177 (1982), enfd mem 718 F 2d 1088 (4th Car 1983), the objectionable statements were found to violate Sec 8(a)(1), not Sec 8(a)(5) In Safeway Trails, 233 NLRB 1078 (1977), enfd 641 F 2d 930 (DC Cm 1979), unlike this case, the employer's statements were aimed at undermining the authority of the union s negotiator, in order to have him replaced by someone more acceptable to the employer STORER COMMUNICATIONS 297 employees could be subjected at any time to a demand by one of its supervisors to submit to a search or to a blood or urine test as a condition of employment Thus, for all intents and purposes, the unit employees' working conditions were changed unilaterally as of the time the Respondent an- nounced its revised policy, and that unilateral change violated Section 8(a)(5) This unlawful act is not redeemed by the fortuity that the Respond- ent happened not to cause any unit employee to submit to a drug test for several months, because the Respondent claimed the right to require such a test at any time 5 Having found that the Respondent's unilateral revision of its drug/alcohol policy violated the Act, we must formulate a remedy for the violation We find that the appropnate remedy will vary among the units involved in the case First, concerning the technical unit at Willing- boro, even though the Respondent unlawfully im- plemented the revised drug/alcohol policy with re- spect to those employees, we agree with the judge that the Respondent then bargained with the Union over the enforcement provisions of the new policy at numerous bargaining sessions thereafter The Union had ample opportunity to, and did, express its views concerning the new policy, the Respond- ent's negotiators even urged the Union's represent- atives to offer alternative provisions, but the Union's negotiators never did so There is no alle- gation that the Respondent engaged in surface bar- gaining, and during the negotiations, no employee was forced to submit to a search or a drug or alco- hol test Under all the circumstances, therefore, we shall not require the Respondent to rescind its revised drug/alcohol policy and reinstitute the policy in effect before October 1984 with respect to the technical employees at Willingboro because we find that it already has bargained in good faith over the enforcement provisions of the new The judge's reliance on Merhcenter Mid-South Hospital, 221 NLRB 670 (1975), is misplaced In Medicenter, the Respondent announced on July 29 that It would begin requiring employees to submit to polygraph examinations on July 31 Id at 672-673 Thus, the employer notified em- ployees in advance of a policy change that would take effect 2 days later Here, by contrast, the Respondent Informed its employees that, effective immediately, they might be required to undergo searches or tests for drugs We find Electric-Flex Ca, 238 NLRB 713 (1978), enfd mem 624 F 2d 1103 (7th Cm 1979) chspositive In that case, one of the Respondent's su- pervisors announced a unilateral change in a safety rule and in the penal- ty for infractions of the revised rule The administrative law judge, in a decision affirmed by the Board, rejected the argument that no violation should be found because the new rule had not been enforced Rather, be- cause higher levels of management had not disavowed or rescinded the new rule, the judge found that the unilateral change violated Sec 8(a)(5) 238 NLRB at 731 In this case, the Respondent's new drug/alcohol policy was promulgated by its top management A fortiori, then, the fact that the new drug/alcohol policy was not "enforced" immediately does not preclude our finding a violation policy 6 Although the Board usually requires such rescission—in most cases because there has been no subsequent bargaining—there is no absolute rule precluding a finding that the parties have subse- quently bargained in good faith over the change Dependable Maintenance Co, 274 NLRB 216, 219 (1985), supp dec 276 NLRB 27 (1985), NLRB v Cauthorne Trucking, 691 F 2d 1023 (D C Cir 1982) See also La Porte Transit Co v NLRB, 888 F 2d 1182 (7th Cir 1989) Contrary to our dissent- ing colleague, this is so even if the change has not been rescinded for the duration of the bargaining In both Dependable Building Maintenance and Cauthorne Trucking, the employers had made uni- lateral changes that they had not rescinded during the postimplementation bargaining period, yet the Board in Dependable and the Court in Cauthorne found that good-faith bargaining still could take place 7 6 Member Cracraft would require the Respondent to reinstate the old policy as It applied to the technical employees at Willingboro Neither the postimplementation negotiations nor the Respondent's failure to re- quire employee submission to the new policy requires departure from the traditional remedy of restoration of the status quo ante At every negotia- tion session, the Union protested unilateral implementation It also wrote letters demanding rescission Moreover, although no employee was tested under the new policy, all employees were required to sign receipts ac- knowledging the new policy and were Informed that the new policy was effective immediately Ironically, although relied on in finding a unilater- al change, these factors are Ignored by her colleagues in formulating a remedy The postimplementation bargaining that did take place in this case occurred against a backdrop of the Respondent s unlawful unilateral change on the very subject about which the parties were bargaining Under these circumstances, Member Cra.craft is unwilling to agree that this unfair labor practice is remedied by a cease-and-desist order Dependable Maintenance Ca, 274 NLRB 216, 219 (1985), on which her colleagues rely, is distinguishable There the violation turned on the em- ployer's failure to afford the union time to study information relating to proposals already on the table However, further bargaining after receipt of the information revealed that the union would not alter its demands See Lehigh Portland Cement Co, 286 NLRB 1366 fn 5 (1987) (Dependa- ble Maintenance distinguishable because the employer therein could erase effects of unilateral change by rescinding the changes and allowing time to bargain to Impasse before reimplementing the changes), see also South- west Forest Industries, 278 NLRB 228 (1986) (Igpendable Maintenance dis- tinguishable as changes were already on the bargaining table prior to uni- lateral implementation and union allegedly bargained to Impasse despite premature implementation) Indeed, as the majority notes, Southwest Forest Industries is distinguishable However, this misses the point In that case, the union refused to bargain in light of the unremedied unfair labor practices The anomaly in the majonty's holding is that It may well be concluded that refraining from further bargaining was the more advanta- geous course In finding Dependable Maintenance distinguishable, Member Cracraft does not pass on whether she would have reached the same result in that case I Lehigh Portland Cement Ca, 286 NLRB 1366 fn 5 (1987), cited by our colleague, implies that good-faith bargaining cannot occur in the presence of unrescmded unilaterally changed conditions because such changes necessarily undermine the Union's bargaining position to such a degree that further bargaining is Incapable of erasing the effects of the original violation However, as we have noted, both Dependable Mainte- nance and Cauthorne Trucking Involved unrescmded unilateral changes Moreover, the Court in Cauthorne Trucking specifically rejected "any presumption that an employer's unfair labor practice automatically pre- cludes the possibility of meaningful negotiations and prevents the parties from reaching a good faith impasse" 691 F 2d at 1025 That reasoning Continued 298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Clearly, there are circumstances where the nature of an employer's unilateral change, unless rescinded, will preclude postimplementation good- faith bargaining In Lehigh Portland Cement, for ex- ample, the employer had bargained (but not to im- passe) over one set of proposals and then, without' warning, switched to a different set containing nu- merous significant changes in existing conditions When the union made an unconditional offer for the striking employees to return to work, the em- ployer unilaterally implemented the entire surpnse package of proposals, concerning which no bar- gaining at all had taken place We agree with the judge in that case that where the employer "did not in good faith bargain to impasse and imple- mented a proposal with a number of terms which were so oppressive as to suggest an intent to ob- struct agreement, the Board's traditional [status quo ante] remedy is particularly appropnate " 8 Similar- ly, an employer's unilateral decision to close a plant and transfer operations to a faraway location, if found to be a mandatory bargaining subject and if implemented before the union had an opportuni- ty to bargain, would so undermine the union's bar- gaining position that good-faith bargaining could not thereafter take place unless a status quo ante remedy was imposed Here, however, we have found that the Re- spondent has not otherwise bargained in bad faith concerning the technical unit, and there is no evi- dence that it implemented its new drug policy in order to obstruct agreement Nor do we find that the Respondent's implementation of its policy here, through its announcement of new rights it was as- serting with respect to drug search and testing, un- dermined the Union's strength in asserting its posi- tion 9 Accordingly, although we shall order the Respondent to cease and desist from making fur- ther unilteral changes in that policy, we shall not ) was accepted by the Board, at least implicitly, in both Dependable Main- tenance decisions To the extent Lehigh Portland Cement suggests a per se rule to the contrary, we deem It of questionable authority, and we de- cline to follow it Southwest Forest Industries, 278 NLRB 228 (1986), on which our col- league also relies, is inapposite There, unlike this case, no bargaining fol- lowed the employer s implementation of unilateral changes, thus, there was no possibility that the parties had bargained to Impasse after the changes had been made 8 286 NLRB 1366, 1389 (1987) 9 As we have noted, the Union opposed the enforcement provisions of the new policy However although the drug/alcohol issue was discussed at all of the bargaining sessions after the new policy had been implement- ed, the Union did not offer any alternative proposals Had the Respondent applied the new drug policy to employees in the technical unit by requiring them to submit to searches or tests when It had not yet bargained to impasse, we should have to consider whether such an application of the new policy would cause us to alter our finding that the bargaining was in good faith Under the circumstances, however, that is a matter we need not decide order it to reinstitute the old policy as it applied to the Willingboro technical unit 10 The foregoing findings do not apply, however, to the Respondent's Port Murray or Middlesex lo- cations, or to its clerical employees at Willingboro In the case of Port Murray, although the Union had been certified as the representative of an all- employee unit at the facility, the Respondent had refused (and, at the time of the hearing, still was refusing) to recognize or bargain with the Union there " Counsel for the Respondent stipulated at the hearing that, concerning Port Murray, " no notice was given to the Union about the drug and alcohol modification, nor was an opportunity given to the Union to bargain over it " 12 Moreover, at the outset of the negotiations described above, the Respondent's negotiators rejected the Union's sug- gestion that the parties negotiate a statewide con- tract, and insisted instead that they were there to talk about only the technical unit at Willingboro 13 Even after the change in the drug/alcohol policy, the Respondent rejected another attempt by the Union to negotiate a statewide agreement In the face of the Respondent's own express limitation of the negotiations to the technical unit at Willing- boro, and to the parties' evident mutual acceptance of that limitation, we do not find that the Respond- ent bargained over the new drug/alcohol policy with respect to any employees other than the Will- ingboro techmcals Because we find that the Respondent did not ful- fill its obligation to bargain with the Union over its revised drug/alcohol policy as it applied to the unit at Port Murray and the clerical unit at Willing- '° That the Respondent in December 1984 instructed its regional man- agers to require drug/alcohol tests of employees who had been involved in motor vehicle accidents does not alter our conclusion The Respondent already had asserted the right to test any employee for any reason, and this amplification merely specified a circumstance in which testing would be done " The Board found that the Respondent violated the Act by refusing to recognize and bargain with the Union at Port Murray CA TV Service Co, 275 NLRB No 109 (1985) (unpublished), enfd mem 786 F 2d 1145 (3d Or 1986) 12 The Respondent notes that it announced its revised drug/alcohol policy in September 1984, before the Union was certified at Port Murray That fact is not dispositive, however, because the Union had won a rep- resentation election at Port Murray in March 1984, long before the new policy was announced It is well settled that, when a union has received a majority of the votes in a representation election, the employer may vio- late the Act by unilaterally changing unit employees' working conditions, even though the union has not yet been certified Mike O'Connor Chevro- let, 209 NLRB 701, 703 (1974), enf denied on other grounds 512 F 2d 684 (8th Cu. 1975) "Although testimony at the hearing establishes that the negotiations were limited to "Willingboro only, and not specifically to the technical employees there, later correspondence between the parties (including cor- respondence following the Union's protest over the new drug policy) refers repeatedly to the negotiations concerning the Willingboro techm- cols We agree with the judge's finding (to which no exceptions have been filed) that negotiations were limited to the technical unit at Willing- boro I --1 ' - • STORER COMMUNICATIONS 299 boro, we shall order it to rescind the revised policy and reinstate its preexisting policy where those units are concerned, and, on request, to bargain in good faith with the Union before implementing any new policy affecting employees in either unit 14 The Respondent also failed to bargain over the new drug/alcohol policy as it applied to the unit at Middlesex However, the Respondent withdrew recognition of the Union at Middlesex in January 1985, and there is no allegation that the withdrawal of recognition was unlawful Consequently, be- cause there apparently is no union at Middlesex with which the Respondent is obliged to bargain, it would be futile for us to order the Respondent to reinstate its old drug/alcohol policy at that facility or to bargain over any proposed changes Howev- er, we shall order the Respondent to cease and desist from making unilateral changes in its drug/alcohol policy without bargaining with any union that may be selected to represent its employ- ees at Middlesex in the future, and to post the usual notices 3 Because bargaining had not occurred at Port Murray, the judge erred in finding that the Re- spondent lawfully discharged Stephen Wydner from that facility in July 1985 The judge relied on his finding that the Respondent had bargained to impasse with the Union over the new drug/alcohol policy long before Wydner was discharged, and that his discharge therefore arose from the applica- tion of a lawfully adopted work rule 15 In view of the Respondent's admitted refusal to negotiate with the Union concerning the Port Murray employees, we find the judge erred in concluding that Wydner was discharged pursuant to a policy that had been lawfully adopted at that facility Wydner's dis- charge therefore violated Section 8(a)(5) and (1) of 14 Respondent later withdrew recognition of the Union as repre- sentative of the clerical employees at Willingboro As we explain below, however, that withdrawal of recognition was tainted by the Respondent's unlawful promulgation of the revised drug/alcohol policy, and therefore cannot stand 12 The Respondent appears to contend that there is no evidence to in- dicate that Wydner was discharged pursuant to its revised drug/alcohol rules We disagree The General Counsel amended the complaint at the hearing to allege that Wydner had been discharged pursuant to the Re- spondent's enforcement of the drug/alcohol policy referred to earlier in the complaint, the amendment clearly refers to the policy announced in September 1984 The Respondent amended its answer to admit that It had discharged Wydner pursuant to its enforcement of the policy referred to in the complaint (I e, the revised policy) It is of scant significance that the Respondent denied having implemented its new policy in September 1984, or that the new policy subjected its employees to changed condi- tions of employment In our judgment, the Respondent admitted dis- charging Wydner under the policy alleged in the complaint—the revised policy Our confidence in this conclusion is bolstered by the statement at the hearing by the Respondent's attorney that Wydner had been dis- charged based on the results of a drug test Moreover, in its brief to the Board, the Respondent refers on at least three occasions to employees having been affected by changes in its drug/alcohol policy Those state- ments, read in context, plainly refer to Wydner as the employee affected by the enforcement of the drug testing rules the Act, and we shall modify the remedy and Order to direct that he be reinstated with full back- pay 16 4 We also find, contrary to the judge, that the Respondent violated Section 8(a)(5) and (1) when it withdrew recognition of the Union as the repre- sentative of the clerical unit at Willingboro, and violated Section 8(a)(1) when it later polled the clerical employees concerning their wishes regard- ing continued union representation It is well estab- lished that an employer may lawfully withdraw recognition from a union (after the certification year has elapsed) if it has reasonable doubt, based on objective considerations, that the union no longer has the support of a majority of the unit em- ployees, provided that doubt arises in a context free of serious unfair labor practices 17 Here, al- though the Respondent had objective evidence that the Union had lost its majority status in the clerical unit," the Respondent's action was not taken "in a context free of serious unfair labor practices" As we have found, the Respondent had unlawfully promulgated a new drug/alcohol policy, under which all employees could be required, as a condi- tion of employment, to submit to a blood or urine test and/or to a search Nor did the Respondent bargain with the Union over this new policy, as it affected the clericals, even after its implementation We find that the Respondent's unilateral imposition of such a potentially intrusive policy, without prior notice to or bargaining with the Union, would have demonstrated to the clerical employees the Union's impotence in representing their interests to the Respondent, and could reasonably have con- tributed to their disaffection from the Union The existence of a serious unremedied unfair labor prac- tice of this sort precluded the Respondent from lawfully withdrawing recognition of the Union in the clerical unit," and from conducting its subse- quent poll 20 Accordingly, we shall order the Re- spondent to recognize and, on request, bargain with the Union as the representative of the clerical unit employees at Willingboro 5 Despite the Respondent's unilateral change in its drug/alcohol policy, we agree with the judge that the parties reached impasse in the Willingboro negotiations on February 21, and that the Respond- " In ordering Wydner s reinstatement with backpay, we do not pre- clude the Respondent's introducing evidence at the compliance stage concerning the appropriateness of either or both of those remedies 11 Industries, 218 NLRB 658, 659 (1975) 18 before the Respondent withdrew recognition, it was In- formed by a unit employee that all 16 of the clericals on the job (6 were still honoring a picket line set up by the technical employees) had signed a statement that they no longer wanted to be represented by the Union " Guerdon Industries, supra at 660-662 2° See Struksnes Construction, 165 NLRB 1062, 1063 (1967) 300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ent, in April, lawfully implemented the terms of its final offer, which the Union had rejected 21 As found above, the Respondent had bargained in good faith over the new drug/alcohol policy as it applied to the Willingboro technical unit, but the parties were unable to reach agreement on that issue Moreover, the parties failed to reach agree- ment on four other issues as well—wages, holiday pay, standby pay, and outside employment (moon- lighting) 22 The Union rejected the Respondent's final offer, but offered no counterproposals Thus, we affirm the judge's finding that the parties bar- gained to impasse with respect to the Willingboro technical employees, and that the Respondent did not violate the Act when it implemented the terms of its final offer as to them 23 6 We further find that the Respondent's unlaw- ful conduct did not convert the strike by technical employees at Willingboro into an unfair labor prac- tice strike As the judge noted, that strike began on January 21 as a walkout in protest over the disci- plining of two male unit employees for wearing earrings at work 24 The Union's chief negotiator, McLaughlin, who met with the employees after the walkout on January 21, testified that if the earring issue had been settled, the employees would have returned to work Employees Gregory, Kelley, and Grzesczuk testified to the same effect On January 22, however, McLaughlin told the Union's attor- ney that the technical employees were upset over the fact that bargaining was taking so long, and the attorney responded that the walkout appeared to be "an unfair labor practice situation " 25 Indeed, the bulk of the testimony indicates that the employ- ees' chief concern was over the perceived slow progress of negotiations McLaughlin and the other employees testified that by January 24 (when the picket line went up), the technical employees would not have returned to work without a con- tract or, at the very least, a show of good-faith bar- gaining by the Respondent 26 21 See Dependable Building Maintenance and NLRB v Cauthorne Trucking, supra 22 We agree with the judge s finding that the Respondent did not engage in dilatory bargaining 23 Member Cracraft agrees with this result 24 The Respondent's conduct in disciplining the employees who wore earrings is not alleged to have been unlawful 23 McLaughlin also told the attorney that the technical employees were upset because on January 21 the Respondent had informed the Union that It would not bargain with the Union over a new contract for the clericals (The Respondent contended that the clencals existing con- tract had been automatically renewed because the Union had not made a timely demand for bargaining ) The Respondent's refusal to bargain over a new contract for the clericals was the subject of an unfair labor prac- tice charge that later was withdrawn It is not alleged to be an unfair labor practice for the purposes of this proceeding 26 On January 10, the technical employees at Willingboro had voted to authorize a strike as a means of putting pressure on the Respondent to reach a contract We conclude that the work stoppage, which began as a walkout over the earring episode, con- tinued as an economic strike that was meant to per- suade the Respondent to negotiate a contract with the Union The judge found, and we agree, that the Respondent's unlawful statements to certain techni- cal employees did not contribute to the strike in any way See C-Lane Express, 292 NLRB 638 (1989) We also find that the strike was not caused by the Respondent's unlawful revision of its drug/alcohol policy 27 We therefore affirm the judge's finding that the strike was not an unfair labor practice strike 28 ORDER29 A The National Labor Relations Board orders that the Respondent, Storer Communications, Inc and its subsidiaries, Storer Riverfront Cable Com- munications, Inc , and Futurevision Cable Enter- prises, Inc, Willingboro, New Jersey, their offi- cers, agents, successors, and assigns, shal13° 1 Cease and desist from (a) Making statements to employees to lead them to believe that they cannot get wage increases or promotions because of their support for Local 827, 22 In so finding, we are not unmindful of the testimony of some em- ployees that the Respondent's new policy contnbuted to their disgruntle- ment In the main, however, that testimony was either vague and general, or part of the employees' contention that the Respondent was dragging its feet in negotiations Moreover, the strike began in late January, some 4 months after the new drug/alcohol policy was announced During that time no employee had been asked to submit to a search or to a medical test, and the Respondent and the Union had bargained over the policy We cannot conclude from this record that the Respondent's unlawful an- nouncement of its new drug/alcohol policy—as distinct from the admitted absence of progress in negotiations over that policy—contributed to the strike 28 Because, as the judge found, the Respondent did not engage in dila- tory bargaining, the strike cannot be converted into an unfair labor prac- tice strike on the basis that the Respondent did not bargain in good faith 29 The General Counsel requests that the remedy Include a visitatonal clause authorizing the Board, for compliance purposes, to obtain discov- ery from the Respondent under the Federal Rules of Civil Procedure under the supervision of the United States Court of Appeals enforcing this Order Under the circumstances of this case, we find It unnecessary to include such a clause, and we deny the General Counsel's request Cherokee Marine Terminal, 287 NLRB 1080 (1988) Accordingly, we need not decide the Issue, raised in the Respondent's exceptions, of whether the General Counsel's request for a visitatonal clause should have been stncken 3 ° The judge found, and we agree, that the Order should apply to the parent company, Storer Communications, Inc , as well as to the individ- ual subsidiaries at which violations occurred (a finding to which the Re spondent does not except) The parent company and its representatives were active participants in the unlawful activities found here The unlaw- ful revision of the drug/alcohol policy was promulgated by the parent company, and was announced as effective immediately in a communica- tion to employees from Terry Lee, president of Storer Communications, Inc Some of the comments to employees that have been found to violate Sec 8(a)(1) were made by Barbara Silkworth, Storer's New Jersey area manager and vice president Because the parent company and its officers (as distinct from the subsidiaries and their officers) took an active part in the conduct found to violate the Act, we need not decide the Issue, raised by the General Counsel, of whether Storer Communications, Inc and its subsidiaries are a single employer, in order to direct that the Order Issue against the parent company STORER COMMUNICATIONS 301 International Brotherhood of Electrical Workers, AFL-CIO (the Union) (b) Withdrawing recognition from, or refusing to bargain with, the Union as the exclusive represent- ative of employees in the following appropriate bargaining unit (the clerical unit) All clerical employees employed by the Re- spondent at its Storer Riverfront Cable Com- munications, Inc , and Futurevision Cable En- terpnses, Inc , at its Willingboro, New Jersey facility, but excluding all other employees and professional employees, guards, and supervi- sors as defined by the Act (c) Polling the employees in the clerical unit concerning their desires for continued representa- tion by the Union (d) Changing its drug/alcohol policy as it applies to the employees in the clerical unit or to employ- ees in the following appropnate unit (the technical unit) All full-time and regular part-time installers, technicians, converter repair employees, serv- ice employees, warehouse employees, and local origination operators employed by the Respondent at its Futurevision Cable Enter- prises, Inc , Willingboro, New Jersey location, but excluding all customer service representa- tives, office clerical employees, professional employees, guards, and supervisors as defined in the Act without first affording the Union the opportunity to bargain over the proposed changes (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) Recognize and, on request, bargain with the Union as the exclusive representative of the em- ployees in the clerical unit concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement (b) Reinstate the drug/alcohol policy that ap- plied before September 1984 to employees in the clerical unit and, on request, bargain in good faith with the Union before implementing any changes in that policy (c) Post at its facility in Willingboro, New Jersey, copies of the attached notice marked "Ap- pendix A "31 Copies of the notice, on forms pro- '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- vided by the Regional Director for Region 22, 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 (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply B The National Labor Relations Board orders that the Respondent, Storer Communications, Inc and its subsidiary, CATV Service Company, Port Murray, New Jersey, their officers, agents, succes- sors, and assigns, shall 1 Cease and desist from (a) Changing its drug/alcohol policy without first affording the Union a meaningful opportunity to bargain over the proposed change as it applies to employees in the following appropriate unit All employees employed by the Employer at its Port Murray, New Jersey location, but ex- cluding all professional employees, guards and supervisors as defined in the Act (b) Terminating any employee represented by the Union pursuant to any change in its drug/- alcohol policy that has been implemented without first affording the Union a meaningful opportunity to bargain over the proposed change (c) 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) Offer employee Stephen Wydner immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of his unlawful termination, as prescribed in F W Woolworth Co, 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987) 32 (b) Remove and expunge from its records and files any notations dealing with the termination of 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' 32 At compliance, the Respondent may introduce any relevant evi- dence concerning the appropriateness of either reinstatement Or make whole relief for Wydner 302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Stephen Wydner, and notify him in writing that it has done so and that it will not use the discharge against him in any way (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (d) Reinstate the drug/alcohol policy that was in effect at the Respondent's Port Murray facility before September 1984 and, on request, bargain in good faith with the Union before implementing any changes in that policy (e) Post at its facility in Port Murray, New Jersey, copies of the attached notice marked "Ap- pendix B " 33 Copies of the notice, on forms pro- vided by the Regional Director for Region 22, 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 (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply C The National Labor Relations Board orders that the Respondent, Storer Communications, Inc and its subsidiary, Middlesex Cablevision, Inc , East Brunswick, New Jersey, their officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Changing its drug/alcohol policy without first affording any labor organization that may be recognized as the i exclusive representative of em- ployees at its Middlesex facility at East Brunswick, New Jersey a meaningful opportunity to bargain over the proposed change (b) 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 Middlesex facility in East Bruns- wick, New Jersey, copies of the attached notice marked "Appendix C " 34 Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent's authorized representative, shall be posted by the 3 3 See fn 31, supra 34 See fn 31, supra Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places, including all places where notices to em- ployees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, 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 IT IS FURTHER ORDERED that the amended Com- plaint, insofar as it alleges unfair labor practices not found above and insofar as it alleges that certain employees have been engaged in an unfair labor practice strike, is dismissed Copies of this Order shall be served in accord- ance with the order issued in Cases 22-RD-810 and 22-RD-816 on September 13, 1985, by the Board's Associate Executive Secretary Service shall be made by Region 22 of the Board upon the petitioners in those decertification cases APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT make statements to you that would lead you to conclude that you cannot get wage increases or promotions because you support Local 827, International Brotherhood of Electrical Workers, AFL-CIO WE WILL NOT withdraw recognition from, or refuse to bargain with, Local 827 as the exclusive representative of employees in the following appro- priate unit (the clerical unit) All clerical employees employed at our Will- ingboro, New Jersey facility, but excluding all other employees and professional employees, guards, and supervisors as defined in the Act WE WILL NOT poll employees in the clerical unit concerning their desires for continued representa- tion by Local 827 WE WILL NOT change our drug/alcohol policy without first giving Local 827 a meaningful oppor- tunity to bargain over the proposed change on behalf of employees in the clerical unit or in the following appropriate unit (the technical unit) All full-time and regular part-time installers, technicians, converter repair employees, serv- STORER COMMUNICATIONS 303 ice employees, warehouse employees and local origination operators employed at our Willing- boro, New Jersey, location, but excluding all customer service representatives, offiae clerical employees, professional employees, guards and supervisors as defined in the Act WE WILL NOT in any like dr related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL recognize and, on request, bargain with Local 827 as the exclusive representative of the employees in the clerical unit concerning terms and conditions of employment and, if an under- standing is reached, embody the understanding in a signed agreement WE WILL reinstate the drug/alcohol policy that applied before September 1984 to employees in the clencal unit, and WE WILL, on request, bargain with Local 827 before implementing any changes in that policy STORER COMMUNICATIONS, INC AND ITS WHOLLY OWNED SUBSIDIARIES, FUTURE VISION CABLE ENTERPRISES, INC , AND STORER RIVERFRONT CABLE COMMUNICATIONS, INC APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT change our drug/alcohol policy without first giving Local 827, International Broth- erhood of Electrical Workers, AFL-CIO a mean- ingful opportunity to bargain over the proposed change on behalf of employees in the following ap- propriate unit All employees employed at our Port Murray, New Jersey, location, but excluding all profes- sional employees, guards and supervisors as defined in the Act WE WILL NOT terminate any employee represent- ed by Local 827 pursuant to any change in our drug/alcohol policy that has been implemented without first giving Local 827 a meaningful oppor- tunity to bargain over the proposed change WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL offer Stephen Wydner immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or any other rights or privileges previously enjoyed, and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest WE WILL remove from our records and files any references to Stephen Wydner's discharge, and notify him in writing that we have done so and that the discharge will not be used against him in any way WE WILL reinstate the drug/alcohol policy that was in effect at our Port Murray facility before September 1984, and WE WILL, on request, bargain in good faith with Local 827 over any proposed changes in that policy before implementing such changes STORER COMMUNICATIONS, INC AND ITS WHOLLY OWNED SUBSIDIARY, CATV SERVICE COMPANY APPENDIX C 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 change our drug/alcohol policy without first giving any labor organization that may be recognized as the exclusive bargaining rep- resentative of our employees a meaningful opportu- nity to bargain over the proposed change on behalf of such employees WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act STORER COMMUNICATIONS, INC AND ITS WHOLLY OWNED SUBSIDIARY, MIDDLESEX CABLEVISION INC Marguerite R Greenfield, Esq and Diane R Williams, Esq , for the General Counsel Michael T McMenamin, Esq and Nancy A Noahl-Walter, Esq (Haverfield, Buescher and Chockley), of Cleveland, Ohio, for Storer Communications, Inc 304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE JAMES F MORTON, Administrative Law Judge The Issues presented by the pleadings, as amended, are whether Storer Communications, Inc, the parent corpo- ration of the other four companies, should be held re- sponsible to remedy the alleged unfair labor practices in this case Obviously without prejudice to a determination on the merits of that contention and solely for the sake of convenience (as has been the apparent practice of the subsidiaries themselves'), I shall refer to the parent and its four subsidiaries jointly as Storer . The unfair labor practices are alleged to be violative of Section 8(a)(1) and (5) of the National Labor Rela- tions Act (the Act) Storer_ is alleged to have failed and refused to bargain collectively with Local 827, Interna- tional Brotherhood of Electrical Workers, AFL-CIO (the Union) and to have unlawfully, by other acts, sought to undermine employee support for the Union More particularly, Storer is alleged to have (a) failed to meet with the Union at reasonable times to bargain as to one of the four collective-bargaining units involved in this case, (b) unilaterally changed its policy governing the use of drugs and alcohol by its employees and unlaw- fully discharged one employee pursuant to the provisions of its new policy, (c) unlawfully withdrew recognition from the Union in one bargaining unit, (d) informed em- ployees that they could not get wage increases or addi- tional benefits through the Union, (e) unilaterally in- creased wages and benefits, and (t) unlawfully polled em- ployees as to their support for the Union The amended pleadings also put in issue whether a strike was caused or prolonged by Storer's alleged unfair labor practices and whether two strikers had engaged in misconduct whereby they forfeited any reinstatement rights they had I heard this case in Moorestown, New Jersey, in August and in October 1985 On the entire record, 2 in- cluding my observation of the demeanor of the witness, and after due consideration of the briefs filed by the General Counsel and Storer, I make the following I FINDINGS OF FACT I JURISDICTION AND THE UNION'S STATUS As established in the amended pleadings, each of the companies named in the case caption meets the applica- ble standard set by Board for the assertion of its jurisdic- tion The pleadings also establish and I find that the Union is a labor organization as defined in Section 2(5) of the Act 1 For example, the manager of one of the subsidiaries, Futurevision Cable Enterprises, Inc , wrote the Union in the course of negotiations and referred to Itself as Storer 2 Transcript errors have been noted and corrected II THE ALLEGED UNFAIR LABOR PRACTICES A Background 1 Storer's operations Storer has its corporate headquarters in Miami, Flori- da A handbook for the approximately 3500 people em- ployed by the parent and its subsidiaries states that Storer owns and operates 7 television stations and that it holds 375 cable communication franchises in 20 States Those franchises comprise Storer's Cable Communica- tions Division The Northeast Region of that division is divided into areas There are three franchises involved in this case, all located in the New Jersey area One is oper- ated in East Brunswick, New Jersey, by Middlesex Cable Vision, Inc (Middlesex), the second in Port Murray, New Jersey, is operated by CATV Services Company (CATV), and the third, in Willingboro, New Jersey, is operated by two subsidiaries—Futurevision Cable Enter- prises Inc (Futurevision) and Storer Riverfront Cable Communications, Inc (Riverfront) 2 Bargaining history In 1976, the Union was certified as the representative of a unit of installers, repairmen, and maintenance em- ployees employed by Middlesex at its East Brunswick franchise The Union has negotiated successive collec- tive-bargaining agreements for these employees, the last one effective from 1 November 1982 through 31 Decem- ber 1984 At the Port Murray facility, the Union won an elec- tion on 1 March 1984 in an all-employee unit Objections were filed and a certification of representative did not issue to the Union until 4 October 1984 There are two other bargaining units of employees in- volved in this case—both in Willingboro, New Jersey In late 1982, the Union became the collective-bargaining representative of the third unit involved in this case—a unit of office clerical employees (also referred to as Cus- tomer Service Representatives or CSRs)—employed by both Futurevision and Riverfront It took 6 months of negotiations before agreement on a collective-bargaining agreement covering that unit was reached That agree- ment was effective from 1 March 1983 to 28 February 1985 In negotiating that agreement, Storer met once a month with the Union, the Union had protested Storer's unwillingness then to meet more frequently The last unit involved in this case is comprised of the installers, technicians, repair employees, service employ- ees, and related classifications of employees, employed by Futurevision at Willingboro The Union had been cer- tified on 26 March 1984 as the representative of that unit (technical unit) The issues before me concern an alleged change in September 1984 in Storer's policy governing the use of drugs and alcohol by its employees, alleged dilatory bar- gaining by Storer for the technical unit, the alleged un- lawful withdrawal of recognition from the Union in the office clerical unit at Willingboro, and other allegations specified above STORER COMMUNICATIONS 305 3 Storer's drug/alcohol policy The complaint alleges that Storer unlawfully promul- gated and implemented unilateral changes in its drug/alcohol policy Storer defends in part on the ground that its policy on those points has not changed Until September 1984, Storer's employee handbook con- tained the following admonition to its employees If you have a known history of dependence upon alcohol or drugs, you may be employed or contin- ued in employment only if the Company is satisfied that you have undergone complete rehabilitation If you report for or are found on duty under the influ- ence of drugs or alcohol, you will be subject to dis- charge Should you develop a problem on the job as the result of legally prescribed medication, or off-duty use of alcohol, your situation will be dealt with in- dividually Rehabilitation through professional counseling will be your responsibility If indicated, the Company will cooperate by granting a reasona- ble leave of absence However, if you reject reha- bilitation, and satisfactory job performance is not re- stored within a reasonable penod of time you will be subject to discharge You will be subject to discharge if you are in- volved in the use of illegal drugs, on or off duty If you engage in selling, dispensing or otherwise traf- ficking in illegal drugs, on or off duty, you will be discharged and reported to the proper authorities for prosecution under the applicable cnmmal stat- ute B Chronology of Events 1 Initial bargaining in the technical unit On 20 March 1984, the Union was certified as the col- lective-bargaining representative of the employees at Willingboro in the technical unit, described above The General Counsel contends that Storer failed to meet with the Union at reasonable times to bargain as to those em- ployees There is no contention that Storer engaged in surface bargaining The Union did not make a request to bargain as to the technical unit until 24 May 1984 It had waited the 2 months since its certification to write Storer because the Union had hoped to coordinate bargaining for the tech- nical unit with bargaining for other units of Storer em- ployees that it represents When the Union did not re- ceive an answer to its 24 May letter, it wrote Storer on 26 June 1984 seeking a response Storer wrote the Union on 28 June to acknowledge receipt of the 24 May letter The parties stipulated that Storer had written its 28 June letter before it received the Union's 26 June letter In its response, Storer asked the Union to submit its proposals in writing for consideration by the "appropriate compa- ny personnel" The Union wrote on 11 July that it wanted a short-term contract with an expiration date the same "for all technical agreements" It enclosed a copy of a contract for another unit as a guideline but made no specific demands on wages or otherwise Storer replied on 23 July that it is not interested in a short-term agree- ment and presented its proposed contract terms for the technical unit On 27 July the Union wrote Storer that it could meet on the proposals "on August 13, 14, 15, 16, 17, 1984" and asked it to make its "date selections" Storer notified the Union that it selected the 17 August date The initial bargaining session was, however, postponed 6 days be- cause Storer's chief negotiator was ill 2 The negotiations in the summer and fall of 1984—the drug/alcohol policy On 23 August, the first negotiating session for the technical unit was held Joseph McLaughlin, a member of the Union's executive board, was its chief negotiator Storer's negotiators were Fred Epstien, an attorney from the corporate office in Miami, and Jimmy Davidson, general manager of the Willingboro facility McLaughlin informed Epstien and Davidson, at the outset of the ses- sion, that the Union was seeking a statewide contract— one that obviously would cover other units besides the technical unit Epstien replied that the negotiations would be limited to the technical unit at Willingboro The parties agreed to discuss first the "non-economic" issues, those that did not have direct cost figures They reviewed, page by page, noneconomic proposals and reached agreement on several As the meeting came to an end, the parties discussed the matter of selecting a date for the next meeting There is a conflict in the testi- mony before me as to that discussion McLaughlin testified that, at the end of the bargaining session, he asked Epstien to set a date for the next meet- ing but that Epstien "insisted" that the scheduling be done by mail and he and Davidson had "to consult with the hierarchy down in Miami to establish dates" McLaughlin testified that he "verbally" suggested dates but later had them put in writing, because of Epstien's insistence The General Counsel offered the testimony of the Union's steward, James Gregory, as corroboration His account follows McLaughlin said he wanted to ex- pedite the negotiations and asked Epstien for a date to meet again Epstien said that he was looking at late September/early October McLaughlin "became very upset at this and went into a good 10 minute dissertation as he can do it, about how [the employees] had waited long enough" Epstien asked McLaughlin for dates When McLaughlin gave him 10 to 15 dates, Epstien said he could not accept them but that the dates would have to be in writing McLaughlin, still upset, said he would do so but that he was not satisfied with a date in late September or early October and that a stnke was possi- ble Epstien testified for Storer that McLaughlin, at the close of the 23 August session, proposed meeting again in "October," that he (Epstien) suggested a date in late September, and that McLaughlin then "went into a big argument and discussion that [Storer was] attempting to delay the meetings which [Epstien] didn't understand at the time" as he, Epstien, had proposed a date earlier than the one offered by McLaughlin Epstien related that, after awhile, everything calmed down and it was agreed that the dates would be set up via the mail 306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The testimony of the Willingboro plant manager, Da- vidson, was that, toward the conclusion of the 23 August meeting, McLaughlin offered "early September as the next date to meet Fred Epstien offered sometime in October [and] McLaughlin just kind of went off on a tangent and said if [Storer would not] meet more regu- larly, that they would go on strike" The account given by Shop Steward Gregory was quite detailed and was substantially consistent, despite vigorous cross-examination Its substance was supported by Storer's plant manager and I credit it On 24 August, the Union's vice president wrote Da- vidson that it is looking to conclude negotiations as expe- ditiously as possible, that its representatives are available "August 31-September 4, 5, 7, 10, 11, 12, 13, 17, 24," and that "the Union is prepared to conduct night bar- gaining sessions and on weekends if the need arises" Da- vidson responded by letter dated 30 August and "select- ed the 13th of September" to continue negotiations in the technical unit On 13 September, agreement was reached as to estab- lishing a safety committee McLaughlin responded to Storer's grievance-arbitration proposal by stating that it was acceptable so long as it was also going to be fol- lowed at other Storer units represented by the Union Storer, at that session, also honored the Union's requests for written descriptions of the job duties of the unit em- ployees and for related data On 19 September, Storer's president sent copies of a notice to all employees under the subject, "Alcohol and Drugs" The notice read Attached is a copy of the Company's recently adopted policy with respect to alcohol and drugs This new policy is considerably expanded over the policy with which you are familiar and which is re- printed at page 11 in the Personnel Policies section of the Employee Handbook (The Handbook is being revised and new pages will be provided to you as soon as they are ready ) The important elements are that the Company is (1) introducing an employee assistance plan de- signed to help those with a drug and alcohol problem rehabilitate themselves, (2) putting into effect strict work rules con- cerning the union and abuse of alcohol and drugs The policy is effective immediately Please acknowledge that you have received, read and understand the attached by signing the receipt below and returning it to your supervisor The policy was spelled (Alt in 3-1/2 pages annexed to this notice Briefly, the policy provides for paid rehabili- tation for employees with alcohol or durg problems, for immediate discharge for refusal to participate, for the search for drugs of vehicles, desks etc of each employee, for blood and urine testing of each employee upon a su- pervisor's request, and for each employee to provide, on request, a signed certification that illegal drugs are not used Union Representative McLaughlin learned of this policy when he was informed later that month by stew- ards at the respective units of Storer which the Union represented McLaughlin advised the unit employees not to sign the receipt, there has been no action taken by Storer respecting the refusal of those employees to sign as directed The next negotiating meeting after 13 September was held on 11 October At the outset of that session, McLaughlin protested the testing procedure and the re- lated discipline provisions set out in the policy and their being put into effect without consultation with or ap- proval by the Union Epstien responded that Storer had the right to expand its own drug/alcohol policy McLaughlin and Epstien then discussed various noneco- nomic Items and reached agreement on about 15 propos- als, including a recognition clause, grievance-arbitration procedures, and a no-strike/no-lockout clause The 11 October meeting was cut short because of a sudden change in Epstien's schedule The parties agreed on 11 October to resume negotiations on 17 October At the 17 October meeting, agreement was reached on other items, e g, recall provisions It ended with McLaughlin telling Davidson that he would contact him "with dates for the next meeting" Instead, as noted below, the Union wrote two letters to Storer on 19 Oc- tober without mentioning any further negotiating dates Storer wrote on 24 October, suggested that a 2-day ses- sion be set up to expedite the reaching of final agreement and offered the following dates—"October 30 and 31, November 1, 2, 6, 7, 8, 9" The next meeting took place on 7 November, as discussed below The Union's two letters dated 19 October are summarized next On 19 October, the Union wrote Storer's headquarters and proposed negotiating a statewide agreement cover- ing five units, in addition to the technical unit at Willing- boro Two of those units are not involved in any way in the initial case Storer, by letter of 23 October, declined the offer . The Union sent a second letter on 19 October protest- ing the "unilateral implementation of the new Alcohol and Drug Policy dated September 19, 1984" On 6 November, Storer's general counsel replied that Storer had the right "to announce the expansion of the Compa- ny's" drug and alcohol policy and offered to discuss any questions on it that the Union might have The Union's response was to request immediate rescission of the re- vised policy At the next negotiating session, on 7 November, the parties reached agreement on several points and dis- cussed other issues which remained open McLaughlin testified that the employees were "getting restless" and that he could make himself available for weekend bar- gaining to "get things finished" He also testified that the Union would discuss economic proposals at the next meeting and that both sides should bring those proposals to that meeting By letter dated 14 November, Davidson offered to meet on any one of four dates set forth there- in, including 10 December—the date agreed on At the 10 December meeting, the Union did not have any economic proposals to present Storer submitted its STORER COMMUNICATIONS 307 wage proposal whereby it alone would decide all in- creases based on its own merit evaluations The Union and Storer, as they have done at each bargaining session since 10 October, discussed the revised drug/alcohol policy described above and at least three other items, dis- cussed further below At the conclusion of the 10 De- cember meeting, McLaughlin asked when the next ses- sion could be held Epstien suggested a date late in Janu- ary and stated that he had to attend a conference and that Davidson would be on vacation in late December and early January McLaughlin asked for an earlier date Epstien told him that he had to put his request in writ- ing 3 Developments from mid-December to 10 January—Union's demand as to the clerical unit On 14 December, McLaughlin spoke with Davidson and told him that the Union would be available through- out January to negotiate on a contract for the technical unit As noted earlier, the Union also represented a unit of clerical employees at Willingboro The collective-bar- gaining agreement covering that unit was scheduled to expire on 28 February 1985 An unfair labor practice charge was filed and withdrawn—all relating to the Union's writing Storer that it wanted to negotiate a re- newal of the contract At this point, there is some com- mingling of events affecting both the technical unit and the clerical unit On 19 December (while the Union was writing for dates in January to resume bargaining as to the technical unit), it wrote Davidson that it desired to negotiate a re- newal of the clerical contract Its letter was sent via cer- tified mail A notice prepared by the U S Postal Service discloses that, on 20 December, it left a claim form in Storer's post office box whereby Davidson could pick up that certified letter On 21 December, Davidson wrote McLaughlin about his telephone discussion on 14 December relating to bar- gaining dates in January for the technical unit Davidson stated that he would suggest specific dates when he re- turned from vacation in the first week of January On 3 January, Davidson wrote McLaughlin, suggesting Janu- ary 23 or 25 On 8 January, McLaughlin wrote to con- firm the 25 January date as to the technical unit Separately, in the first week of January, McLaughlin telephoned Davidson and expressed concern because the Union had received no response to its letter of 19 De- cember requesting bargaining as to the clerical unit Da- vidson told McLaughlin that he had been tied up and that he had been on vacation McLaughlin assured him that there would be no problem and that he would re- spond in writing soon On 10 January 1985, the Union held a meeting The employees in the Willingboro technical unit and those in the clerical unit there were present McLaughlin re- viewed the bargaining developments as of then After ex- tensive discussions, a strike vote was conducted All the technical unit employees voted to strike as of 28 Febru- ary if agreement was not reached On 4 January, Davidson and his immediate superior, Vice President Barbara Silkworth, went to corporate headquarters in Miami 4 The conversations in mid-January 1985 On returning to New Jersey, Davidson and Silkworth talked with three of the Willingboro technicians on 16 and 17 January The General Counsel has alleged that Storer thereby sought to undermine support for the Union The relevant testimony is set out a Gregory-Davidson discussion One of the technicians, James Gregory, testified as fol- lows Silkworth asked him to come back to the Willing- boro facility early When he did so, Davidson called him to his office There, Davidson pointed to a computer printout and told Gregory that it was a corporate wage analysis prepared by Storer which showed that the em- ployees in the technical unit were underpaid Davidson told him that Storer wanted to bring their wages into parity 3 Davidson said Storer's hands were tied because the technicians had voted for the Union and that nothing could be done while a contract was being negotiated Davidson asked Gregory to go out and to tell the other technicians about the printout Davidson's account is now set out He called Gregory into his office because Gregory appeared to be "increas- ingly frustrated" He emphathized with Gregory and pulled out a computer printout to demonstrate that Storer was aiming at parity Davidson could not recall whether or not he made any reference to the Union or to the contract negotiations Davidson indicated to Gregory that the parity raises had been implemented for employ- ees who were not represented by the Union I credit Gregory's account Davidson's version seems less plausible, it seem unlikely that he could allay Greg- ory's increasing frustration, as he put it, by volunteering that unrepresented employees were getting raises b Kelley-Sdkworth conversation Another Willmgboro technician, Michael Kelley, testi- fied as follows When he arrived for work, Vice Presi- dent Silkworth was standing by the dispatcher's desk She asked him if he knew what day it was He replied that he did not She said it was the day everyone who was not involved with the Union got a raise He asked when would the technicians get a contract She smiled, said everyone else is happy, and walked away Silkworth's account is as follows Kelley was with an- other employee who had confronted her with complaints about an unsafe vehicle and as to when Storer was going to give the technicians a raise On the latter point, she said Storer was bargaining in good faith and, as she had a feeling that the employees felt that Storer was not doing anything for them, she was trying to indicate that Storer did care She explained that Storer historically gave increases each January and that, in fact, other 3 Storer has a corporate policy of paying the same wages to employees of similar skills who are working in a defined geographical section, e g, the New Jersey area 308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD people throughout the State had received raises that day She told Kelley that Storer was bargaining in good faith and that other people throughout the State seem to be more contented than the people at Willingboro I credit Kelley's account It was specific and- not as general as Silkworth's Moreover, if she were seeking to reassure the technicians, as she said she was, it is unlikely that she would have expressly pointed out to them that other employees were "more contented" c Grzesczuk-Sdkworth discussion A third Willmgboro technician, Paul Grzesczuk, testi- fied as follows Silkworth introduced herself to him and asked him "what kind of problems" was he having He complained to her about Storer's drug policy, with the way contract negotiations were going, and about safety equipment Silkworth told him that the drug policy was needed to "weed out the bad apples," that all employees were getting annual raises but, since he had the Union, Storer's hands were tied and that he "should think posi- tively" Silkworth's version follows Her discussion with Grzesczuk had to do with when the Union was going to get a contract Her response was that Storer was negoti- ating in good faith, that at some point raises would be forthcoming and that, in fact, other employees through- out the state had gotten raises that day I credit Grzesczuk's testimony as he appeared to recall the discussion clearly Silkworth's account was very gen- eral She impressed me as one with a precise mind She did recall speaking to Grzesczuk It is possible that she had but a general recollection of her discussion with him but, even so, I would not find her account as persuasive d Kelley-Davidson discussion General Counsel offered the following testimony of one of the above technicians, Kelley, in support of the allegation that Davidson had sought to undermine the Union's support among the technical unit employees by telling them that raises and promotions were frozen be- cause of the Union Kelley saw Davidson in mid-January 1985 for the purpose of being considered for a promotion to Tech I, the highest nonsupervisory position among the technical employees Davidson had just promoted a unit employee, Rick Sullivan, from Tech I to a supervisory position, lead technician In response to Kelley's inquiry, Davidson stated that all raises and promotions were frozen because of the union negotiations Kelley pointed out that Davidson had promoted technicians in 1984, a reference to the promotion in July 1984 of Sullivan to Tech I, and the promotion of George Fuentes from Tech I to a supervisory position, lead technician Kelley did not recall whether Davidson made any further state- ments Davidson did not specifically refer to a discussion with Kelley concerning raises and promotions He was asked by Storer's counsel if he ever told any employee that promotions were frozen because of the Union and he an- swered, "No" I credit Kelley's detailed account over Davidson's summary denial 5 Clerical unit development on 16 January On 16 January, Davidson sent Storer's written re- sponse to the Union's 19 December 1984 letter As noted above, the Union had requested therein negotiations for a contract for the Willingboro clerical employees to suc- ceed the one scheduled to expire 28 February 1985 In his response, Davidson informed the Union that Storer would not negotiate as it received the Union's 19 De- cember on 2 January 1985—that is, within the 60-day period prior to contract expiration Davidson wrote that, in Storer's view, the contract for the Willmgboro clerical employees had thereby been renewed automatically for 1 year 6 The work stoppage On Monday, 21 January, a technician, Michael Kelley, was told by Plant Manager Davidson to remove an ear- ring he was wearing He declined Davidson told him he could not go to work with an earring The Union's stew- ard, James Gregory, arrived He also was wearing an earnng He too refused to remove it Davidson told them both to go home for the day and that they could not go back to work if they continued to wear earrings They left All the other technicians left work immediately and followed Kelley and Gregory to Kelley's home They called Union Representative McLaughlin, who arrived there that afternoon McLaughlin made repeated appeals, by telephone, to Davidson to end the work stoppage by rescinding his order to Kelley and Gregory Davidson remained firm McLaughlin and Davidson agreed to dis- cuss the matter further at the next negotiating session, set for 25 January Shortly after 5 p m on 21 January, McLaughlin called the Union's office and learned about Davidson's letter of 16 January, discussed above, in which Davidson stated that the contract for the clerical employees had been automatically renewed By this time, most of the employ- ees in the clencal unit had arrived at Kelley's home Ac- cording to McLaughlin, the technicians wanted to stay out to protest the way Storer was "dragging its feet in - the bargaining" He informed them that he would have to get legal advice He instructed them not to put up any picket signs and he told the clerical employees to report for work McLaughlin testified that had Davidson agreed to his request that day, to rescind his order to Kelley and Davidson pertaining to their wearing ear- rings, the technicians would have all returned to work on 22 January All of the technicians stayed away from work on 22 and 23 January, the clerical employees went to work McLaughlin consulted with the Union's lawyers When he was advised that the Union "could legally strike for unfair labor practices," he informed the steward for the technical unit, James Gregory, that he would be at Will- ingboro on 24 January with picket signs A picket line was set up that day by the employees in the technical unit Storer called a clerical employee, Jacqueline Cavone, to testify in support of its contention that James Gregory forfeited any reinstatement rights he had by reason of his conduct towards Cavone on the first day of the picket- STORER COMMUNICATIONS 309 ing Cavone testified without contradiction that Gregory stood in front of her car as she sought to enter the Will- ingboro facility and that Gregory told her that he "would get even" with her for crossing the picket line Cavone further testified that, on the next day, Gregory again stood in front of her car He told her, according to Cavone, that she would have to run him over to get in Cavone testified that Gregory "finally moved" and she drove in 7 Subsequent negotiations On 25 January, negotiations in the technical unit re- sumed At that session, McLaughlin first sought to re- solve the "situation of the walkout", Davidson remained firm in his refusal to let Kelley and Gregory work while wearing earrings In the course of the negotiations that day, McLaughlin drafted and presented to Storer the Union's first economic proposals These were discussed, as were other subjects The union steward, Gregory, tes- tified that the technicians intended to stnke until they -got a "decent contract" On 31 January, another session was held Some progress was made then Epstien informed the Union that four employees had been hired as permanent re- placements He also presented the Union with a new wage proposal which would increase the technicians' wage rates from 10 to 17 cents an hour in 1985 with slightly larger increases in both 1986 and 1987 and which would reserve to Storer the right to increase these rates based upon the individual performance of an employee The Union reduced its wage demand by 5 cents per hour and reiterated its opposition to allowing Storer the dis- cretion to decide wage increases as it chooses Storer's position was that any wage package must include its right to grant merit increases Further sessions were held on 7 February, 8 February, and on 20 February The parties were apart on five items—merit increases and wages, the searching and test- ing procedures of the revised drug/alcohol policy, holi- day pay, standby pay, and whether employees could moonlight Epstien produced on 7 February a slight revi- sion in its wage package On 8 February, McLaughlin told Epstien that Storer's wage offer was unacceptable The parties discussed the other open issues without resolving them On 20 February, Epstien submitted to the Union his "final" wage package which provided for a 3-percent in- crease in each year of a 3-year contract and which re- served to Storer the right to grant individuals further in- creases based on performance The other open issues were discussed McLaughlin submitted no counterpro- posals Epstien asked him to recommend Storer's "final" contract package to the employees McLaughlin said that the offer was unacceptable and that he would not even ask for a ratification vote He told Epstien that there has been some progress and he hoped that there would be more Epstien responded that Storer's position was final and that the parties were at an impasse McLaughlin dis- puted this, he testified that "hope springs eternal" The Union, on 22 and 28 February, requested Storer to meet again, without indicating that its position vis-a-vis Stor- er's final offer was changed There were no further meetings until 10 July 1985 8 Alleged threat by Gregory and Kelley Storer contends that, as Epstien and Davidson were leaving the 20 February session, Gregory and Kelley threatened them and that they thereby forfeited any right to reinstatement they may have had Epstien and Davidson testified that Kelley and Greg- ory followed them to the elevator They related that either Kelley or Gregory asked them, "What the fuck do you think you're dome' and then asked Epstien if he knew what it was to go to sleep at night not knowing if he would wake up Both also testified that Kelley and Gregory later temporarily blocked their car from exiting the parking lot and thumped the car as it left Kelley testified that he and Gregory were standing at the elevator and that Gregory, in talking to Epstien about the drug/alcohol policy, said that Storer wants his blood and that he, Gregory, had been in Vietnam where he did not even know if he was going to wake up every morning Kelley further related that Epstien ran his car into them in the parking lot Gregory testified that he and Kelley were upset by the whole situation and that, on 20 February, he told David- son while they were waiting for the elevator that he (Gregory) was a Vietnam veteran and that he was bitter at the way Storer was treating him The accounts given by Epstien and Davidson are in- herently more probable than those offered by Kelley and Gregory I credit Epstien and Davidson 9 The withdrawal of recognition in the clerical unit As noted above, Storer took the position on 16 Janu- ary 1985 that the Union's failure to give timely notice had automatically renewed, for 1 year from 28 February 1985, the contract covering the Willingboro clerical em- ployees On 5 April 1985, Storer withdrew recognition from the Union as bargaining agent for the employees in that unit The circumstances surrounding those develop- ments are now set out On 19 December 1984, the Union wrote a letter to Storer's manager at Willingboro, to notify him that it wanted to negotiate a new contract to replace the one covering the clerical employees, then scheduled to expire on 28 February 1985 That letter was sent by certified mail, return receipt requested Copies were simultaneous- ly sent to the respective Federal and state mediation of- fices and they received them on 20 December On 20 December, the postal service left a delivery notice for Davidson informing him that he could pick up a certified letter He did not, although as noted above he wrote the Union on 21 December relative to the technical unit ne- gotiations The postal service's records show that the date of delivery to Davidson of the Union's 20 Decem- ber letter was 2 January 1985 Also as noted above, Da- vidson had informed the Union Representative McLaughlin in early January that Storer would be meet- ing with him to negotiate the renewal contract Storer's corporate attorney, however, suggested to Davidson that he legally could refuse to negotiate a renewal contract 310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD because the Union's letter was received within 60 days of the termination date of the contract and, as a conse- quence, the contract had been automatically renewed Davidson opted to take that suggestion, notwithstanding that the clencal employees at Willingboro would thus re- ceive no wage increase in 1985, notwithstanding that their counterparts in nearby Storer facilities were getting raises then and notwithstanding that the resultant dispari- ty in wages would not be consistent with Storer's own policy of ensuring wage panty among employee classifi- cations on a statewide basis On 29 January 1985 the Union filed an unfair labor practice charge in Case 22-CA-13667 to protest Storer's refusal to negotiate a renewal contract for the clerical employees at Willingboro In an effort to adjust the con- tentions raised by the Union and Storer during the ad- ministrative investigation of that charge, the Regional Office proposed that it would approve a request by the Union to withdraw that charge provided that Storer inform the clencal employees (a) that the Union had given Storer timely notice of intent to terminate the con- tract, (b) that it was not the Union's fault that Storer did not receive the notice in a timely fashion, and (c) that Storer agree to bargain with the Union On 11 March, Davidson met with the employees in the clerical unit and read to them the following note I call this meeting to let you know that the Com- pany will meet with the Union currently represent- ing you this week As you may be aware, the Union sent the company notification that it wanted to re- open the contract Although this notice was mailed in December, the Company did not receive it until January, after the time penod for such notification had passed Nonetheless, the company had decided to meet with the Union to discuss your conditions of employment One of the clericals present was Jacqueline Cavone She testified as Storer's witness and related that David- son was then "trying to point out that the Union did not give [notice] in time, but the company decided in spite of that [to] negotiate" Cavone and other clencal employees concluded that the only way that they could get a raise was to have the Union decertified On 25 March, Davidson met with the clerical employ- ees to advise them as follows This is in addition to my previous comments con- cerning the reopening of negotiations for a new clerical agreement which were ongmally scheduled for March 13, 1985, but were cancelled at the Union's request due to the passing of the Union President I wanted to make the following addition- al comments so you are totally informed Earlier, I had discussed with you that the Union had sent their notification to renegotiate a new agreement to us sometime in December, but it was not received by us here until January 2, which was after the date required in the contract to open nego- tiations for a new agreement Be that as it may, since the Union apparently placed the notification letter in the mail before the cut-off date and the Post Office made a mistake or was the cause for the delay in having the notice received by us on Janu- ary 2, the Company has decided to agree to negoti- ate, despite this technicality which was not the fault of the Union but apparently the fault of the Postal Service or some other party In short, I wanted you to know that we have decided to go to the bargain- ing table in good faith with the hope to reach a new agreeement with the Union, despite the fact that the notice was not received by me on time due to nei- ther the fault of the Union nor the Company On 28 March the Union's request to withdraw the charge it filed on 29 January in Case 22-CA-13667 was approved, apparently because Davidson's 25 March statement above met the conditions set by the Region, as related above Apparently the Union was unaware that one of the clerical employees, Cavone, had on 27 March circulated a sheet which contained a statement at its top that, "We, the undersigned no longer want to be represented by the [Union]" and that 16 of the 22 em- ployees in the Willingboro clerical unit signed it Cavone informed Davidson of that fact, and filed a decertifica- tion petition with the Board, on 1 April On 5 April, Da- vidson wrote McLaughlin to inform him that a 9 April bargaining session for the clerical unit was canceled be- cause Storer could not legally meet with the Union inas- much as he had been informed that all of the 16 clerical employees then working had signed a decertification pe- tition The Union, on 16 May, filed the unfair labor practice charge in Case 22-CA-13845, one of the five underlying the complaint in this case That charge stated that Storer, after having initially "refused to recognize because of an alleged untimely demand by the Union and after absolving the Union for any wrongdoing [it] agreed to bargain [Respondent] has again refused to bargain" 10 Polling of the clerical employees On 26 April 1985, one of Storer's attorneys met with the clerical employees at Willingboro, to tell them that Storer would conduct a secret-ballot election to find out if they wanted the Union to represent them The em- ployees were told then no action would be taken against them as a result of how they voted The balloting was conducted by an individual who also is a local police ser- geant No supervisors of Respondent were present The ballots asked, "Do you wish to be represented by the [Union]?" All the clerical employees checked the "NO" box 11 The April wage increases On 1 April 1985 Respondent put into effect, for the employees in the technical unit, the wage increases and other provisions contained in its final offer made to the Union at the last previous bargaining session 4 The Union was notified of this 4 Storer had engaged a local attorney to handle the unfair labor prac- tice charge relating to its refusal in January to negotiate a new contract Continued STORER COMMUNICATIONS 311 On 23 May, the Union requested a resumption of the bargaining for the technical unit By letter dated 13 June, Storer advised the Union that it would meet with the Union in July They met in mid-July At that meeting, the last between the parties, the Union withdrew its op- position to Storer's earlier proposals (since implemented) on the matters concerning holiday pay and standby pay The Union continued to object to the other three points which had separated the parties, i e, the 3-percent annual wage increases, the drug/alcohol policy, and the restric- tions on outside employment 12 Alleged unlawful discharge The parties stipulated that Stephen Wydner, an em- ployee in the unit represented by the Union at Storer's facility in Port Murray, New Jersey, was discharged on 1 July 1985 pursuant to Storer's enforcement of its drug/alcohol policy C Analysis 1 Alleged dilatory bargaining The General Counsel contends that Storer has failed to bargain collectively with the Union as the representa- tive of the unit of technical employees at Willingboro by not meeting with the Union "at reasonable times" as re- quired by Section 8(d) of the Act Storer's 1-month delay in responding to the Union's initial demand letter, the credited testimony that Storer's attorney, Epstien, wanted over a month's delay, to October 1984, before holding the second meeting, and the unavailability of Plant Manager Davidson for another month later that year are, prima facie, indicia of bad-faith bargaining See Great Lakes Coal Go, 268 NLRB 1207 fn 3, 1214-1215 (1984), Hudson Chemical Co, 258 NLRB 152, 157 (1981), Cable Vision, 249 NLRB 412, 420 (1980), Milgo Industri- al, 229 NLRB 25, 31 (1977) These cited cases reflect the Board's deep concern with "protracted delays in arrang- ing" bargaining sessions See J H Rutter-Rex Mfg Go, 86 'NLRB 470, 474, 506 (1949) To neutralize the significance of the evidence of undue delays on its part, Respondent has offered countervailing evidence which demonstrates that the Union itself did not genuinely press for intensive negotiating sessions and, indeed, that Storer on occasion had' to take the initiative in scheduling meetings Thus, the Union delayed over 2 months after certification to even request bargaining, it failed to honor Storer's request for its economic demands until after the strike began, and (except for its representa- tive voicing criticism of Epstien's offer in August 1984 of a later September-early October date for the next ses- sion) it never stated any serious objection to the schedul- ing of the sessions, even in the many letters it wrote— until it filed an unfair labor practice charge thereon, also after the strike had begun Storer notes that the schedul- for the clerical unit That attorney had been under the impression that he was also retained to negotiate with the Union for the technical employees unit and, in the course of adjusting the questions raised by the unfair labor practice charge, set up negotiating sessions for both units He can- celed the session for the technical unit when he learned that he had not been retained as to that unit ing of the bargaining sessions in this case closely parallels the scheduling format followed by the parties in a recent case, one in which the General Counsel premised bad- faith bargaining on the tactics used, and made no claim that the scheduling was dilatory Storer urges that that decision warrants dismissal of General Counsel's conten- tion here See Reichhold Chemicals, 277 NLRB 639 (1985) To the same general effect, Storer has cited Carl- sen Porsche Audi, 266 NLRB 141, 149 (1983), and F & F Construction Go, 235 NLRB 1440 (1978) I find that Storer has successfully rebutted the infer- ence of bad-faith bargaining that could be drawn from the evidence offered by the General Counsel For that matter, I note that the Union did not press for swifter ne- gotiations not because of inexperience, Inadvertence, or lack of diligence Rather, it delayed its initial bargaining request while it weighed the feasibility of seeking a master contract for all the technical units of Storer em- ployees which it represented in New Jersey The Union was still openly pursuing this aim as late as 19 October 1984, as evidenced by the letter its president wrote on that date to Storer's corporate office It appears that, even in January 1985, it had not abandoned its aim of multiunit bargaining, it may not have been pure coinci- dence that the technical unit employees voted then to go on strike on 28 February, the date that the clerical con- tract was scheduled to expire The Union's failure to submit its economic demands until after the 21 January work stoppage indicates that that was no coincidence I further note that bargaining was intensified once that work stoppage began, and after the Union finally pro- duced its wage demands Storer's delay later in schedul- ing the last meeting until July 1985, is offset by the fact that, by then, the parties had long been at impasse, as discussed infra and as the Union, in its request to meet, gave Respondent no reason to believe the impasse would end I find that the evidence of Storer's delays in holding bargaining sessions, in the context of the overall bargain- ing for the technical unit at Willingboro, is insufficient to establish that Storer sought to evade its bargaining obli- gations In making that determination, I am cognizant of the admonitions by Administrative Law Judge Wed, in Milgo Industrial, supra, against becoming so engrossed in analyzing each indicium of alleged bad-faith bargaining that the broad picture is missed The parties themselves have segregated this case into specific components and have so presented the issues to me There is no allegation that Storer engaged in surface bargaining The General Counsel advised that that was not an issue and, indeed, were it, the evidence would still appear Insufficient Cf Leeds Cablevision, 277 NLRB 103 (1985) 2 Alleged unilateral implementation of the drug/alcohol policy Storer, in September 1984, notified its employees na- tionwide that effective immediately it would provide and pay for rehabilitation of its employees who own up to having a problem with drugs or alcohol and that it would require its employees under penalty of discharge to take blood/urine tests to detect the use of drugs or al- 312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cohol and to submit to searches of their person and prop- erty whenever Storer's supervisors believed it reasonable to require a test or search Storer contends initially that Storer's basic policy (whereby employees would be discharged if caught using drugs, or using alcohol on or off its premises), was un- changed by that announcement That is, to my mind, the same as saying, if the goal is the same, the means used are immaterial Respondent would analogize the revi- sions in its drug/alcohol policy to an employer's substi- tuting a timeclock for a manual recording of working times, found lawful in Rust Craft Broadcasting of New York, 225 NLRB 327 (1976) Storer recognizes that the September 1984 announcement may have an "emotional" Impact on its employees but does not appear to give any weight to that concern It may be that Storer finds its own anxieties about having a drug-free work force over- whelming The language which is appropriate to a reso- lution of the issue raised by this contention of Respond- ent is that used by Administrative Law Judge Bernard Reis, adopted by the Board in Mid-South Hospital, 221 NLRB 670, 675 (1975), "it may fairly be said that this sort of change in an employer's investigatory method, substantially varying both the mode of investigation and the character of proof on which an employee's continued job security might hinge, is a bargainable change in the terms and conditions of his employment" The revision in Storer's drug/alcohol policy in September 1984 was thus a mandatory subject of bargaining I turn next to whether Respondent has failed to dis- charge its statutory bargaining obligation thereon Storer issued the revisions to its employees without having given the Union prior or even contemporaneous notice The new policy was effective at once Nonethe- less, none of the employees in any of the units involved herein were subjected to the operations of the revised policy until about 10 months later In that interim period, Storer and the Union discussed the provisions of the new policy many times The Union informed Storer it had no objections to the rehabilitative aspects of the new policy and that it objected strenuously to the testing and search provisions Storer's response consistently was that it opted for a uniform policy and it was adamant on that point The General Counsel argues that Storer presented the Union with a fait accompli in promulgating the new policy in September 1984 and relies on Board decisions which hold that an employer's doing so constitutes bad- faith bargaining See Ciba-Geigy Pharmaceuticals Division, 264 NLRB 1013 (1982), and Mosher Steel Go, 220 NLRB 336 (1975) Those cases, however, are factually distin- guishable from the instant case as there the respondent employers had implemented the announced changes Storer, on the other hand, took no action, other than to meet and discuss the new policy with the Union, for 10 months before implementing it The rationale, set out in Mid-South Hospital, supra, pertains directly to the issue before me now, and warrants dismissal of the complaint allegation as the Union had, and availed itself of, the op- portunity to present its views before implementation The General Counsel does not contend that Storer at any point in this case engaged in surface bargaining On the matter of its new drug/alcohol policy, Storer en- gaged in hard, not bad-faith bargaining 3 Alleged efforts to undermine the Union The credited testimony establishes that Storer's manag- er at Willmgboro and its vice president for its New Jersey area both talked with three separate technical unit employees in mid-January 1985 to let them know quite clearly that they were not getting the raises given all other Storer employees because they had selected the Union to be their representative Storer's officials were not stating a legal principle The attendant circumstances indicate clearly that they wanted the employees to real- ize the folly of their choice Were Storer's manager and its vice president expounding Storer's legal duties in re- sponse to unsolicited inquiries, I would agree with its view that the Board's holding in SCA Services of Georgia, 275 NLRB 830 (1985), would govern The actual discus- sions, in context, disclose that Storer placed the onus for the technical employees not getting and not being able to get raises on them for having chosen the Union By doing so, Storer has interfered with employee rights under Section 7 of the Act See Gulf States Mfrs, 230 NLRB 558, 560-561 (1977) Davidson's remarks to Kelley would lead him to conclude that a penalty had been attached to the right of the employees in the techni- cal unit to select the Union as their representative and Storer thereby violated Section 8(a)(1) of the Act See Alpha Cellulose Corp, 265 NLRB 177, 178 (1982) 4 The alleged unfair labor practice strike The General Counsel contends that the technical em- ployees have been engaged in a strike on and since 25 January 1985 which had been caused and prolonged by Storer's unfair labor practices The evidence before me is that the technical employ- ees walked out on 21 January 1985 in protest of Storer's refusal to let Kelley and Gregory work while wearing earrings The testimony of the Union's representative in- dicates firmly that that walkout and the ensuing picket- ing would have ended immediately if Storer would let its technical employees wear earrings while at work The effort to relate the work stoppage to any alleged unfair labor practices fails on that account and on the absence of any showing of causation The only unfair labor prac- tices found are those involving the conversations on 6 January that Davidson and Silkworth, Storer's plant manager and its vice president respectively, had with three technical employees Nowhere is there any proba- tive evidence that those conversations were the cause of the walkout or any basis for its continuation In the ab- sence of any casual connection between any unfair labor practice and the strike, I shall dismiss this allegation of the amended complaint See SCA Services of Georgia, supra at 20-21 5 5 It is unnecessary to decide whether Gregory and Kelley forfeited any reinstatement rights (they would have had as unfair labor practice strik- ers) by reason of their conduct on 20 February 1985 as found above Were It required, I would have to find that they lost any such right by reason of their misconduct then STORER COMMUNICATIONS 313 5 The alleged unlawful withdrawal of recognition Storer withdrew recognition in April 1985 from the Union as the representative of the Willingboro clerical employees when informed that a majority signed a peti- tion disavowing the Union The General Counsel con- tends that that petition was tainted by Storer's having unilaterally imposed its drug/alcohol policy and by its refusal in January 1985 to negotiate a new clerical con- tract Clearly, if the source of the employees' dissatisfac- tion with the Union were unfair labor practices commit- ted by Storer, Storer could not lawfully rely on the peti- tion See Medo Photo Supply Corp v NLRB, 321 U S 678, 681 (1944) The argument offered by General Coun- sel fails For the reasons set forth above, Storer did not commit an unfair labor practice in having announced its revised drug/alcohol policy Nor can Storer's refusal to negotiate in January 1985 a renewal contract be found to be an unfair labor practice as it has not been so alleged in the complaint nor has General Counsel moved to amend the complaint to allege it as such That does not appear to be an oversight on General Counsel's part 6 As there is no contention that Storer instigated the filing of the decertification petition among its clerical employees at Willingboro and as there is no basis to at- tribute its filing to any unfair labor practice by Storer, Storer's withdrawal of recognition based on its good- faith doubt of the Union's majority status is not violative of the Act Celanese Corp of America, 95 NLRB 664 (1951) 6 Alleged unlawful unilateral wage increases in April 1985 Storer had made its final offer on 21 February 1985 to the Union for the technical unit employees The Union had made it clear that that offer was not worthy of sub- mission to its members for consideration Storer in es- sence put its final proposals into effect in April 1985 The General Counsel contends that, in so doing, Storer bypassed the Union and acted unilaterally on the ground that no impasse had been reached The gist of General Counsel's case is that Storer had bargained in bad faith pnor to the asserted impasse and hence cannot rely on the impasse to justify its unilateral action I have found that there is no merit to General Counsel's allegations of bad-faith bargaining The General Counsel separately suggests that the negotiations have gone on for a lengthy period because progress had been slow and urges there- 6 It appears that General Counsel purposefully did not allege the Janu- ary refusal as an unfair labor practice The Union had filed an unfair labor practice charge in Case 22-CA-13667 to protest that refusal The Board s Regional Office had proposed to Storer that It would approve withdrawal of that charge if Storer complied with certain specified con- ditions—that it would Inform its clerical employees that the Union was not at fault with respect to Storer's receiving its demand late and that Storer would notify those employees that it would negotiate with the Union Storer complied with those conditions on 25 March and on 28 March 1985 the Regional Office approved the Union's request to with- draw that charge The General Counsel has sought by indirection to reopen the underlying dispute It would seem best in effectuating the policies of the Act to honor the terms under which the Union's with- drawal request had been approved Cf Texaco Inc , 273 NLRB 1335 (1985) Cf Indiana Cabinet Co, 275 NLRB 1209 (1985), and Quinn Co, 273 NLRB 795 (1984) fore that further time was needed before it can be said that an impasse had been reached The timing of a final offer is usually a tactical step in negotiations and, with- out more, the Board shall not label as unfair that timing I find that a valid impasse had been reached upon the tender of Storer's final offer on 21 February and the Union's rejection of it and that therefore Storer's unilat- eral institution of its final offer in April 1985 did not vio- late Section 8(a)(1) and (5) of the Act See Seattle-First National Bank, 267 NLRB 897 (1983) 7 The poll of the clencal employees Storer's conduct of a secret poll of its clerical employ- ees at Willingboro met the requisite safeguards set by the Board and does not constitute a violation of Section 8(a)(1) of the Act as alleged See American Mirror Co, 277 NLRB 1626 (1986) 8 The discharge of Stephen Wynder The complaint was amended to allege that an employ- ee at Port Murray employed in a unit represented by the Union had been discharged in July 1975 by reason of the application to him of Storer's revised drug/alcohol rules Obviously, this allegation is premised on a separate con- tention that the implementation of those rules was unlaw- ful I have already found that Storer did not fail or refuse to bargain collectively with the Union as to the revisions in its drug/alcohol policy The extended discus- sions it had with the Union thereon, from the account of the Union's representative himself, were viewed by the Union as applicable to all the units of Storer employees that the Union represented In these circumstances, I find that impasse had been reached on that policy long before Wydner was discharged in July 1985 for violating it Thus, I conclude that his discharge was not the result of any bad-faith negotiations but rather it was attributable to the enforcement of a lawfully adopted work rule CONCLUSIONS OF LAW 1 Storer and its respective subsidiaries in this case are each an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization as defined in Sec- tion 2(5) of the Act 3 Storer committed unfair labor practices in violation of Section 8(a)(1) of the Act by the conduct of its agents, Davidson and Silkworth, in mid-January 1985 in leading employees in the technical unit at Willingboro to con- clude that raises and promotions were being denied them because they supported the Union 4 Storer did not commit any of the other unfair labor practices alleged in the amended complaint 5 The strike by the technical employees at Willing- boro was not caused or prolonged by any unfair labor practice committed by Storer 6 It will effectuate the policies of the Act (a) to limit the scope of the remedial order to Storer's facility at Willingboro, (b) to apply that order to the parent and to its subsidiary which employ the employees in the techm- 314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cal unit Involved in this case, 7 and (c) to deny General Counsel's request for a visitatonal order in view of the limited violations found [Recommended Order omitted from publication ] 7 The subsidiary exists as an administrative unit of the parent and clear- ly follows the lead of the parent in all matters involving labor relations ed to the issue of remedy See Marlene Industries Corp, 255 NLRB 1446 policies Storer s contentions go to the scope of the unit and do not relat- (1981) Copy with citationCopy as parenthetical citation