The Kent Corp.

National Labor Relations Board - Board Decisions

Apr 12, 1985

275 N.L.R.B. 138 (N.L.R.B. 1985)

138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Kent Corporation and Clinton JH[ollie, Jr. Case
10-CA-19593-2
12 April 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 23 March 1984 Administrative Law Judge J.
Pargen Robertson issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed a brief in support of
its cross -exceptions and a statement in opposition to
the General Counsel's exceptions.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge' s rulings, findings, I and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, The Kent
Corporation, Birmingham , Alabama, it officers,
agents , successors, and assigns , shall take the action
set forth in the Order.
MEMBER DENNIS, dissenting in part.
I agree with my colleagues that the Respondent
violated Section 8(a)(3) and (1) of the Act by de-
priving employee Clinton Hollie Jr. of overtime
and transferring him to another department because
of his union activities . However, I would not adopt
the judges ' conclusion that the Respondent did not
further violate the Act by discharging Hollie.
In his decision , the judge found , inter alia, that
the Respondent lawfully discharged Hollie on 26
September 1983 11 because he refused to submit to a
i Contrary to our dissenting colleague, we do not agree that it is nec-
essary for resolution of this case to remand it to the judge for further
credibility resolutions regarding the discharge of employee Clinton
Hollie The dissent predicates the remand on the judge's failure to resolve
conflicting testimony regarding whether Hollie was given a second op-
portunity to refuse to take the polygraph Such resolution , argues our
colleague, is necessary to determine whether Hollie was disparately treat-
ed as compared to some other employees who were given a second op-
portunity to take the test.
Hollie's refusal initially to take the polygraph test is undisputed The
only dispute is whether Superintendent Gnffees gave Hollie a second op-
portunity to refuse to take the test The record establishes that Gnffees
and Hollie met a second time concerning the test and shortly thereafter
Hollie told guard George Steinnard that Hollie had refused to take the
polygraph. Consequently, even if Hollie were credited over Griffees re-
garding the second confrontation , we are not persuaded that the record
establishes disparate treatment Stemnard's testimony remains undisputed
that Hollie told him after the discharge that he had refused to take the
polygraph . Hollie's failure to deny Stemnard 's testimony coupled with
the absence of any testimony that Hollie told Griffees that he would take
the polygraph leads us to affirm the judge's decision that the General
Counsel failed to prove this allegation
i Hollie was actually terminated on 27 September 1983, but the termi-
nation letter was effective 26 September
polygraph examination regarding damage to the
Respondent's vans. The legality of Hollie's dis-
charge is related to whether Hollie ultimately re-
fused to take the polygraph examination. The judge
found that the facts are in dispute as to what oc-
curred at the meeting just before Hollie's dis-
charge. The Respondent presented evidence by
Plant Superintendent Dean Griffees and Security
Manager Jim Wolfe that Hollie was asked on 27
September 1983 (a second time) if he was going to
take the polygraph test. The General Counsel, on
the other hand, called Hollie, whose testimony in-
dicates that he was not given a second opportunity
to take the polygraph, but rather was summarily
dismissed. The judge failed to resolve this conflict,
relying instead on the finding that there was no
evidence that Hollie told Griffees he was willing to
take the examination.
The General Counsel contends, and I agree, that
whether Hollie was given a second opportunity to
take the polygraph test is necessarily material to
any evaluation and review of the reason the Re-
spondent discharged him. The Respondent offered
its other employees who had initially refused the
polygraph test a second opportunity to take it. A
failure to offer Hollie the same opportunity would
indicate disparate treatment.2 I would remand this
portion of the record to the judge for credibility
findings with respect to whether Hollie was given
a second opportunity to take the polygraph test
prior to his discharge.
2 I disagree with my colleagues ' finding that guard Steinnard 's testimo-
ny that Hollie said he refused to take the polygraph test obviates the
need to resolve the conflict in testimony concerning the 27 September
meeting I find Stemnard 's testimony is too ambiguous to support the
finding of an admission by Hollie Hollie's statement could have been a
mere reiteration of the reason given to him by the Respondent for his
termination Indeed, the termination slip which Hollie refused to sign
stated, "Due to your refusal to submit to a polygraph examination, your
employment with Kent Corporation is terminated effective 9-26-83 " By
the same token , Hollie's statement could have referred to his refusal to
take the test on 26 September Without an unambiguous admission by
Hollie, that he had, after the second confrontation with Griffees, refused
again to take the test , the central question of whether Hollie was allowed
a second opportunity remains unanswered
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON , Administrative Law Judge.
This matter, which was heard in Birmingham, Alabama,
on January 10, 1984, is based on a complaint which
issued on November 10, 1983, following a charge which
was filed on October 3 and amended on November 7,
1983. Respondent, The Kent Corporation, is charged
with violating Section 8(a)(1) and (3) of the Act by de-
nying overtime, transferring to another department, and
discharging its employee Clinton Hollie Jr.
275 NLRB No. 23
KENT CORP. 139
On the entire record, and from my observation of the
witnesses, and after due consideration of the briefs filed
by the General Counsel and Respondent, I make the fol-
lowing
FINDINGS OF FACT'
1. BEFORE HOLLIE'S DISCHARGE
During April 1983, the United Steelworkers of Amer-
ica (the Union) began an organizing campaign at Re-
spondent's Birmingham facility. Clinton Hollie was one
of Respondent's employees that became active in that
campaign on behalf of the Union.
Hollie testified that he signed up a few employees for
the Union, attended union meetings, and wore a union
button to work. On July 7, Hollie was 1 of 53 employees
that signed a petition claiming the employees were mis-
represented in a contract that had been signed by Re-
spondent and a purported employee representative.
On August 5, Hollie, along with a few other employ-
ees, appeared at an NLRB representation case hearing.
Hollie testified on behalf of the Union.
On August 8, Hollie was presented with an "absentee
warning" by Respondent. Hollie protested the warning,
claiming, among other things, that the absence reflected
on the warning represented his absence to testify in the
NLRB hearing pursuant to a subpoena. Plant Superin-
tendent Dean Griffees responded, "Oh yeah, that's right.
You testified for the Steelworkers." Griffees struck
through the absence notation. Nevertheless, Hollie was
awarded the warning on the basis of two tardies for the
week of August 1 to 7, 1983. Before that date no em-
ployee had ever received a warning for two tardies in 1
week.
While awarding the August 8 warning to Hollie, Grif-
fees said Hollie had to shave his goatee and Griffees
brought up the wearing of a cutoff tee shirt. Hollie testi-
fied without being rebutted, that he had not worn a
cutoff tee shirt since the day he returned from vacation
in June 1983. Also, according to Hollie, until August
1983, Respondent permitted its employees to wear beards
except around the first of each year when employees
were customarily required to cut their hair and shave.
On August 11, 1983, Hollie received a writeup stating
that he was being deprived of all overtime because of his
violation of safety rules prohibiting the wearing of
sleeveless shirts, beards, and long hair and requiring the
wearing of leather shoes. However, as shown above, the
testimony of Hollie was uncontradicted that he did not
wear a sleeveless shirt after June 1983. Hollie also testi-
fied without conflict that he had had an earlier conversa-
tion in which he was told not to wear tennis shoes. Be-
cause of that conversation, Hollie did not wear tennis
shoes. Even though shoes are mentioned in Hollie's
August 11 writeup, according to Hollie, shoes were not
I The commerce facts and conclusions are not in issue Respondent ad-
mitted that it is a corporation with a place of business in Birmingham,
Alabama , where it is engaged in the manufacture of metal shelving and is
an employer engaged in commerce within the meaning of Sec 2(6) and
(7) of the Act Respondent also admitted that the United Steelworkers of
America is a labor organization within the meaning of Sec 2(5) of the
Act
mentioned in his conversation with Griffees and his su-
pervisor, Wendell Speegal. Hollie testified that on being
told to shave his goatee, he shaved and did not grow the
goatee back until after his discharge.
On September 15, Hollie was stopped by any NLRB
agent and given 10 or 12 NLRB election notices as he
was driving into Respondent's facility. Superintendent
Griffees and two other supervisors were present when
Hollie picked up the election leaflets.
Approximately 5 minutes after Hollie began work on
September 15, Griffees came in and said something to
Hollie's supervisor. Hollie's supervisor, Wendell Speegle,
immediately called Hollie to his desk and told Hollie that
Hollie was being transferred to another department. A
writeup dated September 15, from Superintendent Grif-
fees states-
After repeated written and verbal warnings, Clinton
conteniously [sic] left his work area without knowl-
edge of his supervisor (Mr. Speegle) and interrupted
other people and disrupted their work effort.
Noting his (Clinton's) inability to follow his supervi-
sor's instructions and his lack of compliance with
safety rules Mr Speegle recommends that Clinton
be moved to another department. Electrocoat needs
one man to help with the line so as of 9-16-83 Clin-
ton will be moved to this area.
Conclusion
The General Counsel alleged that Respondent violated
Section 8(a)(1) and (3) of the Act by denying Hollie
overtime and transferring Hollie to another department.
The record appears to support the General Counsel's al-
legations.
On August 8, 3 days after Hollie testified for the
Union in the NLRB representation hearing, Hollie re-
ceived an absentee warning for being tardy twice in 1
week.
Hollie's timecard for the week ending August 7
showed that he was 5 minutes late 1 day and 25 minutes
late on another.
Hollie testified that before August 8, an employee was
considered in violation of the rules if he was tardy five
or six times a month and, if someone was absent three
times in 1 week he could be fired.
The records in evidence support Hollie's contention
that before he received the absentee warning on August
8, Respondent did not have a practice of issuing warn-
ings for two tardies in 1 week. Absentee calendars in the
record show that before Hollie's warning other employ-
ees were occasionally absent or tardy two or more times
in a single week without receiving a warning. The
records show that no employee was warned for receiv-
ing two tardies in 1 week before Hollie was warned on
August 8.
Superintendent Griffees does not dispute the above
evidence. However, Griffees explained that before
August 1983, another Respondent official was charged
with administering the absentee policy. In August Grif-
fees assumed that responsibility, and from that time he
strictly enforced the policy. Nevertheless, Griffees was
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unable to document either the two tardies per week
policy or that employees were advised of installation of
strict enforcement of that policy during or after August.
Griffees published no rules or notices to the employees
that the policy or the practice was to change in August.
Under the above circumstances it is apparent and I
find that Clinton Hollie was treated discriminatorily on
August 8, when he was warned for two tardies in 1
week. No other employees had previously received such
a warning. Neither Hollie nor any other employee had
been advised that Respondent was changing its practice
regarding warnings for tardiness. Hollie was a known
union advocate and his warning issued on the Monday
following his testimony the immediately preceding
Friday in the representation case hearing.2
Again on August 11, Respondent took disciplinary
action against Hollie. On that occasion Griffees deprived
Hollie of all overtime. The writeup of August 11 attrib-
uted Hollie's disciplinary action to Hollie's alleged disre-
gard of safety rules "regarding wearing apparel and per-
sonal grooming." The writeup continued:
Because of area in which he worked, leather shoes
and shirts with sleeves are needed. Also beards and
long hair are safety hazards. Mr. Hollie said he
knew the rules. He had been warned about tardy
rules a few days before and was reminded of the
safety rules. To discipline him for his lack of regard
for safety rules, all overtime was taken away from
him He was also rewarned about his tardy and un-
excused absences.
Hollie's testimony, which was not rebutted and is
credited, proved that he did nothing in violation of the
rules regarding shoes and shirts after June 1983. I also
credit his testimony that he had not been cautioned
about his beard or hair and that it was Respondent's
practice to attend to those questions only at the begin-
ning of each year. Hollie also testified that he was nei-
ther absent nor tardy between August 8, when he re-
ceived the absentee (tardy) warning, and August 11,
when he was denied overtime.
Respondent, on the other hand, was unable to docu-
ment that Hollie was cautioned about any of the matters
complained of on August 11, at any time proximate to
that date. The testimony of Dean Griffees established
that Griffees had no recollection of Hollie violating any
of the policies covered in the August 11 disciplinary
action during July or August 1983, other than the two
tardies in the week of August 7.3
It is clear from the above and the entire record that
Respondent disciplined Hollie on August 11, for reasons
other than those alleged in the writeup. None of the mat-
ters listed therein occurred so proximately as to justify
2 I do not find that Respondent violated Sec 8(a)(1) and (3) by issuing
the August 8 warning to Hollie That action was not alleged as a viola-
tion in the complaint.
9 Gnffees first testified that he talked to Hollie four or five times about
"dress" during the June through August 1983 period Subsequently, Grif-
fees testified that he talked to Hollie about "dress"' on one occasion after
Hollie's June vacation That accords with Hollie's testimony that his
"dress" was mentioned only once and that incident occurred on the day
he returned from vacation in June I credit Hollie in that regard
disciplinary action. Against that background, I find that
Respondent engaged in a pretext and that the actual
motive behind its actions were Hollie's union activities
including his testimony 6 days before August 11. I find
that Respondent deprived Hollie of overtime from
August 11, 1983, in violation of Section 8(a)(1) and (3) of
the Act.
On September 15, 1983, Hollie was transferred from
shipping department to electrocoat. Dean Griffees testi-
fied that the transfer was a disciplinary action and that
that was the only occasion where an employee was
transferred as a disciplinary action.
Hollie testified, without rebuttal, that he was given no
explanation for the transfer. A note from Griffees indi-
cates that Hollie was transferred because he continued to
leave his work area "without knowledge of his supervi-
sor (Mr. Speegle) and interrupted other people .. .
Nevertheless, there was no probative evidence that
Hollie left his work station during August or September
1983. Griffees' testimony revealed that he had no direct
knowledge of Hollie's activities in that regard.4 Dean
Griffees also testified that he considered prior warnings
in Hollie's file. However, Hollie received no warnings
for leaving his work area after April 7, 1982-over a
year before his September 1983 transfer.
The record reveals that Superintendent Griffees direct-
ed Hollie's transfer on September 15, shortly after he ob-
served Hollie pick up 10 or 12 election notices from an
NLRB agent and take those notices into work. Griffees
then used warnings that were over a year old to justify
disciplining Hollie. Under those circumstances, it is ap-
parent that Hollie was transferred in violation of Section
8(a)(1) and (3) of the Act.
II. THE DISCHARGE OF CLINTON HOLLIE
During the weekend of September 17 and 18, 1983,
someone vandalized automobile vans owned by Re-
spondent, located on Respondent's premises. On Septem-
ber 19, Respondent posted a memo to all employees ad-
vising that its investigation into the weekend incident
may include, among other things, polygraph examina-
tions for all employees.
Respondent required all employees, including Clinton
Hollie, to sign a consent to submit to polygraph examina-
tion upon initial employment. Hollie's signed form is in
evidence.
On September 20, Respondent posted a second notice
to employees regarding its investigation into the damage
to its vans:
Although the majority of our managers and em-
ployees are honest and trustworthy, we do, as you
know, from time to time, have problems with theft
and vandalism of company property. Therefore, we
want to restate Kent's policy on polygraph exami-
nations, which you all are aware of, having signed a
consent form That, if asked to do so in the course
of an investigation any or all employees and manag-
4 Griffees testified that he was told of incidents by Hollie's supervisor
However, no specific incidents were mentioned by Griffees, no incidents
were documented, and the supervisor did not testify
KENT CORP 141
ers of Kent will be required to submit to a poly-
graph examination as a condition of continued em-
ployment.
Shortly before September 26, Dean Griffees escorted
Clinton Hollie to a building on Respondent's premises
where Respondent was conducting polygraph examina-
tions 5
Robert Montgomery, an employee of Security Engi-
neers, was conducting the polygraph examinations.
Montgomery testified as follows regarding Respondent's
original efforts to require Clinton Hollie to submit to the
examination:
A. I believe they introduced him (Hollie) to me
and either Jim or Dean, one asked him if he was
going to take the polygraph test and his statement
was that he needed to make a phone call to the
union before he would.
Q. Did anyone respond to his statement about the
union?
A. I believe it was Dean that responded and told
him that employees were allowed to use the phone
only on breaks and lunchtime, that he could call
anyone he wanted to at that time, but during
normal work hours, he wasn't allowed to use the
phone.
Q. And did you either of the management offi-
cials tell him he couldn' t use the phone at all?
A. No, sir.
Q. What happened after that?
A. They talked real briefly, you know, about
taking the polygraph, that he had made the same
statement as before, about calling the union before
taking the test and after that, they stepped outside
the door and I could hear talking, but I couldn't un-
derstand what was being sad.
Q. Did you ever see Mr. Hollie again?
A. No, sir.
Hollie testified along the lines of the above testimony
by Montgomery. Hollie did testify that he admitted to
Griffees on that occasion that he had signed the consent
to submit to a polygraph examination.
When Hollie next reported to work on September 26,
Dean Griffees was waiting. Hollie was asked to sign the
following statement:
Due to your refusal to submit to a polygraph exami-
nation, your employment with Kent Corporation is
terminated effective 9-26-83.
In your employment application you agreed to
submit to a polygraph examination if requested by
management. Management requested that you
submit to such an examination today in connection
with our investigation into recent vandalism of
company vehicles. Your refusal to submit to this ex-
amination leaves us no choice but to terminate your
employment.
5 The examinations were conducted by another firm, Security Engr
neers The General Counsel does not dispute Respondent's right to re-
quire polygraph examinations of all employees
Although Hollie contended to Griffees that he had not
refused to take the polygraph examination, both his testi-
mony and the testimony of all other witnesses, reveal
that after his initial refusal, Hollie never told Respondent
that he would take the examination.
The record reveals that all employees that continued
to refuse to take the polygraph were discharged. Several
employees changed their minds after initially refusing.
Those employees were not discharged.
Conclusion
The General Counsel contends that the basic factual
issue is whether Hollie refused to take the polygraph. I
agree. However, I find that Hollie's actions do in fact
demonstrate a refusal to take the examination.
The evidence is unrebutted that Hollie originally re-
sisted taking the polygraph until he could call a union
representative. At that time Hollie was released to return
to work.
Subsequently, the following day, Hollie was again con-
fronted by Griffees. The evidence is in dispute as to
whether Hollie stated on that occasion that he would not
take the examination. However, it is not disputed that at
no time on September 26, did Hollie tell Griffees that he
was willing to take the examination.
Moreover, it is also disputed that subsequent to his dis-
charge, Hollie told George Steinnard, a guard for Secu-
rity Engineers, as Steinnard was escorting Hollie off Re-
spondent's premises, that he had refused to take the poly-
graph.
Additionally, at a union meeting after his discharge,
Hollie told employee Dale Schaeffer who was called by
the General Counsel, that he was fired for refusing to
take the polygraph test.
Those admissions demonstrate that on September 26
both Hollie and Respondent were well aware that Hollie
had refused to take the polygraph. Regardless of wheth-
er Hollie specifically stated he would not take the exami-
nation, it was clear to all concerned that Hollie was not
submitting to the polygraph. Under the circumstances,
Hollie had ample opportunity to clear the air by telling
Griffees that he was willing to take the examination.
Hollie did not take that action.
Therefore, Griffees and, for that matter, any reasona-
ble person, would logically conclude that Hollie was
continuing to refuse to submit to the examination.
I find that the evidence establishes that Clinton Hollie
was discharged on September 26, because of his refusal
to submit to a polygraph examination regarding damage
to Respondent's vans.
Respondent conceded at the hearing that Hollie was
not implicated in damaging its vans. However, as con-
ceded by the General Counsel, it is clear that Respond-
ent was entitled to inquire into the damage incident and
the polygraphing of employees was a legitimate tool in
that inquiry.
Despite the animus Respondent demonstrated in its
earlier actions against Hollie, it is clear that Hollie him-
self furnished the necessary basis for his discharge. Un-
fortunately for Hollie, those grounds are not protected
by the Act.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that Clinton Hollie was not discharged in viola-
tion of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. By depriving its employee Clinton Hollie Jr. of
overtime from August 11, 1983 , and by transferring
Hollie to another department on September 16, 1983, be-
cause of his union activities , Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act.
3. Respondent did not violate the Act by discharging
Hollie on September 26, 1983.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices , I shall recommend it be ordered to cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
As I have found that Respondent unlawfully deprived
Clinton Hollie Jr . of overtime from August 11, 1983, to
his legitimate discharge on September 26, 1983, I shall
recommend that Respondent be ordered to make Hollie
whole for any loss of earnings he may have suffered as a
result of the discrimination against him. Backpay may be
computed with interest as described in F. W. Woolworth
Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231
NLRB 651 (1977).6
ORDER
The Respondent , The Kent Corporation, Birmingham,
Alabama , its officers , agents, successors , and assigns,
shall
1. Cease and desist from
(a) Denying overtime and transferring its employees to
other departments because of their union activities or
other protected concerted activities.
(b) In any like or related manner interfering with, re-
straining , or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act.
(a) Make Clinton Hollie Jr. whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against him, in the manner set forth in the
remedy section of this decision.
(b) Preserve and, on request , make available to the
Board or its agents for examination and copying , all pay-
roll records , social security payment records , timecards,
personnel records and reports , and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its facility in Birmingham , Alabama , copies
of the attached notice marked "Appendix ."7 Copies of
the notice , on forms provided by the Regional Director
for Region 10, after being signed by the Respondent's
authorized representative , shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered , 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 Re-
spondent has taken to comply.
I 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 Na-
tional Labor Relations Board " shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to award overtime to our em-
ployees because they engage in activities on behalf of the
United Steelworkers of America or any other labor orga-
nization.
WE WILL NOT transfer our employees to other depart-
ments because they engage in Union activity.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL make Clinton Hollie Jr., whole by payment
of lost earnings and other benefits which he may have
lost by reason of our discrimination against him.
THE KENT CORPORATION
6 See generally Isis Plumbing Co., 138 NLRB 716 (1962).