The Lone Star Co.

National Labor Relations Board - Board Decisions

Nov 13, 1964

149 N.L.R.B. 688 (N.L.R.B. 1964)

688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Lone Star Company and General Drivers, Warehousemen
and Helpers Local Union No . 968. Case No. 23-CA-1563. No-
vember 13, 1964
DECISION AND ORDER
On April 23, 1964, Trial Examiner Rosanna A. Blake issued her
Decision in the above-entitled proceeding, finding that the Respond-
ent has engaged in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain affirmative action,
that the Respondent had not engaged in other unfair labor practices
as alleged in the complaint, and recommending that the complaint be
dismissed in these other respects, as set forth in the attached Decision.
Thereafter, the Respondent filed exceptions to the Decision and a
supporting brief, and the General Counsel filed cross-exceptions and
a brief in support of the Decision. The Charging Party filed a brief
in reply to the Respondent's brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Decision,
the exceptions, cross-exceptions, and briefs, and the entire record in
the case, and hereby adopts the findings," conclusions, and recom-
mendations of the Trial Examiner.
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the Board hereby adopts, as its Order, the Order recom-
mended by the Trial Examiner and orders that the Respondent, The
Lone Star Company, Houston, Texas, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial Examiner's
Recommended Order, with the following additions and modifications :
1. Insert the following as a separate paragraph following para-
graph 2 (a) of the Trial Examiner's Recommended Order :
"Notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstate-
i The Trial Examiner found insufficient evidence to support the allegation that Respond-
ent had made various changes in working conditions in violation of Section 8(a) (1) of
the Act. She also found that statements made by various management representatives did
not violate Section 8( a)(1) because they were too general in nature . In the absence of
exceptions , we adopt, pro forma, these findings of the Trial Examiner. Additionally, in
view of the fact- that the complaint did not allege that the notice posted by Respondent
violated Section 8(a) (1) of the Act by indicating to employees that seeking to bargain
collectively may be futile because the " only" way the Union could keep its promises was
by striking, we find it unnecessary to pass upon Trial Examiner's gratuitous statements
in this regard.
149 NLRB No. 67.
THE LONE STAR COMPANY 689
ment upon application in accordance with the Selective Service Act
and the Universal Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces."
2. The Trial Examiner's Appendix is amended to read : "All our
employees are free to become, remain, or to refrain from becoming
or remaining, members of the above-named or any other labor organi-
zation."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on January 31, 1963, by General Drivers, Warehousemen
and Helpers Local Union No. 968, and amended charges filed on March 7 and
April 1 and 30, 1963, the General Counsel, acting through the Regional Director
for Region 23, issued a complaint on May 9, 1963, alleging that The Lone Star
Company had engaged in conduct which violated Section 8(a) (1), (3), and (5) of
the Act. In its answer, Respondent admitted certain allegations of the complaint,
such as the commerce allegations, but denied having committed any unfair labor
practices.
Thereafter, pursuant to due notice, a hearing was held before Trial Examiner
Rosanna A. Blake in Houston, Texas, on October 7, 1963, and various dates
thereafter in October and November 1963. All parties were represented by
counsel and were afforded full opportunity to be heard, to present evidence, to
examine and cross-examine witnesses, to argue orally, and to file briefs. The
parties waived oral argument. Subsequently, counsels for the General Counsel,
Charging Party, and Respondent filed briefs.
Having considered the entire record in the case, the briefs, and from my observa-
tion of the witnesses while testifying, I make the following: 1
FINDINGS OF FACT
I. JURISDICTIONAL FACTS; THE LABOR ORGANIZATION INVOLVED
The Lone Star Company, herein at times called Respondent or the Company, is
a Texas corporation with its principal office and place of business in Houston,
Texas. It is engaged'in the.wholesale distribution of liquor and in the 12 months
prior to the issuance of the complaint, a representative period, sold and distributed
products valued in excess of $500,000, of which more than $50,000 represents direct
purchases made from companies located outside the State of Texas.
Upon the, foregoing facts I find, as Respondent admits, that it is, and has been
at all times material herein, engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
Respondent admits and I find that General Drivers, Warehousemen and Helpers
Local Union No. 968, herein referred to as the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Lone Star is probably the largest wholesale liquor distributor in 'Texas and
maintains nine branches in the ' State. The' Houston branch, the only one with
which this proceeding is concerned,` is the Company's largest branch and its sales
are in excess of $5,000,000 a year.
During January-February 1963, the period in which the events in issue occurred,
L. C. Shinn was branch manager, Truett T. Stoneking was assistant' branch man-
ager and personnel manager, and A. O. Erickson was warehouse manager.
Lone Star employs 23 rank-and-file employees in its Houston warehouse, most of
whom are primarily truckdrivers' who deliver the Company's products to its cus-
1 All credibility determinations made in this Decision are based In part upon my. observa-
tion of the demeanor of the witnesses, while testifying.
770-076-65-vol. 149-45
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tourers?. For the reasons set forth, infra, checkers Larry, Maxfield, Eldo Remke,
and W. C. Walker are found to be supervisors within the meaning `of Section 2(11)
of the Act and checker-receiving clerk Manners is found not to be a supervisor
within the meaning of that section.
B. The alleged refusal to bargain
On Saturday, January 12, 1963, 18 of Respondent's 23 rank-and-file employees
signed cards authorizing the Union to act as their bargaining representatives In
a letter dated January 14, the Union notified the Company that 18 employees,
whose names were set forth, had designated the Union to represent them in collec-
tive bargaining and requested the Company to meet with the Union at its "earliest
convenience" to negotiate a contract covering employees classified as truckdrivers,
truckdriver helpers, warehousemen, forklift operators, and shipping and receiving
clerks. The letter also notified Respondent that "In the event of any discrimination
against any of your employees because of their union activities, we will take
prompt action to remedy such discrimination." The Company received the letter
on the morning of January 15 but never made any reply.
Also on January 14, the Union filed a representation petition in which it de-
scribed the unit substantially as it had in its letter to the Company.4 The Company
received a copy a day or two later and on January 18, Respondent's attorney, I.
J. Saccomanno, received a call from a representative of the Board concerning the
date on which a hearing on the petition could be scheduled. Saccomanno told the
Board agent that he "felt" it would be necessary to go to a hearing because he
questioned whether the unit was an appropriate one for bargaining. Saccomanno
said that "the status of the checkers was in doubt" because he did not know whether
the , Union meant to include them in the classification "shipping and receiving
clerks." Saccomanno also referred to the fact that no reference was made to the
warehouse office clerical help. A hearing was scheduled for February 12 but was
not held, presumably because of the filing of the unfair labor practice charge
which set in motion the instant proceeding.
C. The alleged interference, restraint, and coercion
The complaint alleges that Respondent made various changes in working condi-
tions after the employees joined the Union "in retaliation" against them and to
cause them to quit or to cause them to complain thereby providing the Company
with grounds for discharge.
One of the changes alleged is that the Company stopped assigning helpers to
trucks on ` long runs with more than 40 stops . The record, however, fails to
establish that this was the Company's practice prior to January 14 5 or that there
was any change in the Company's practice in this respect after the date.
I also find the evidence insufficient to support the further allegation in the
complaint that the Company eliminated coffee and transferred drivers from one
2 Because of a State credit law or regulation , the Company's business is very heavy be-
tween the 1st and 4th and the 16th and 19th of each month , these periods being referred
to in the record as the "pay periods." In between , business is much lighter and the drivers
not needed to deliver merchandise work in the warehouse at various jobs such as cutting
half cases, stacking whiskey, and sweeping. The record shows that at the time of the
events here in issue the Company employed 16 drivers, 2 warehousemen , 2 bottle room
men, 2 forklift operators , 1 maintenance man, and 1 checker-receiving clerk.
$ Only 17 of the employees testified at th4 hearing that they had signed the cards which
were admitted Into evidence as General Counsel's Exhibits Nos. 2A-2R. The 18th, Otis
Pleasant , was one of the employees alleged in the complaint to have been discriminatorily
discharged but he was not available as a witness and the General Counsel moved that his
name be stricken from the complaint . Needless to say, Respondent did not object and the
motion was granted.
' The petition set forth the unit as including all truckdrivere, truckdriver helpers, ware-
housemen, forklift operators, and shipping and receiving clerks employed at the Houston
branch . It specifically excluded office clerical employees , salesmen, guards, watchmen, and
supervisors as defined by the Act. This " is the unit alleged by ' the complaint to be appro-
priate for collective bargaining.
5If anything, the record discloses that this was not the Company's practice. See for
example the testimony of General Counsel' s witness James A. Williams that helpers were
assigned on the basis of the number of cases to be delivered . I think the employees be-
-lieved that there had been a change in policy due to the fact that they had been given
helpers in December-a rush period-and were not given helpers in January, a slow
month.
THE LONE STAR COMPANY 691
truck to another without a rest period and 'an opportunity to get warm . There is
simply no evidence that the Company eliminated ;coffee and there is only a ,little
more to support the allegation that the drivers were no longer given rest periods,
Although I believe that on January 21 a crew of four men was assigned to
unload a whiskey truck and then, without a break and contrary to usual custom,
was sent directly to unload a wine truck , in my opinion this one instance is not
sufficient to establish a change in working conditions . Nor is it established by the
additional fact that on the same day, and again contrary to usual practice, a
number of the men were directed to push three stalled trucks away from the
loading area so that trucks waiting to be unloaded could be moved up for unload-
ing.6 In my opinion , these two episodes are not sufficient to support a finding that
respondent made changes in working conditions following notice that 18 of the
employees had signed union cards.?
Nor do I find that there was any real "speed up" in the warehouse after Janu=
ary 15. I find entirely credible Warehouse Manager Erickson 's testimony that on
many occasions-both before and after the union activity-either he or the check-
ers told the employees to "get a move on." Although it is probably true that the
employees were "jacked up" a little more frequently between January 15 and 30
and although it is also probably true that what the employees described as "pres-
sure" was not wholly unrelated to the notice from the Union , the evidence in my
opinion is entirely too general to warrant the conclusion that there was in fact a
"speed up" in work following receipt of the Union's letter.
However, I am convinced and find that management representatives made state=
ments on various occasions indicating that orders had been issued to the effect that
the employees would have to put out more work .8 For example , when Johfl
Thornton complained to Supervisor Maxfield that he (Thornton) was "working in
too many trailers," another employee , James Williams, told Thornton not to "de-
bate" with Maxfield . Maxfield replied, "Yeah, because the Company is going to
run half of you off, anyway , if you don't get better on the job ." During the same
period, Maxfield told checker -receiving clerk Manners , "We are going to stop
this talking back and not doing what they tell you to do , and if any of them give
you any trouble or talk back or anything , you tell me about it.... We are going
to by to run away about half these guys around here." 9
8 Various witnesses were questioned at length about whether the unloading incident
and/or the truck pushing incident occurred on January 14 or 21 . Both mornings were
quite cold , by Houston standards , and trucks were probably stalled both mornings. My
examination of all the evidence causes me to conclude that both incidents probably hap-
pened on January 21.
4 On the other hand , I have difficulty believing Warehouse Manager Erickson 's testimony
that he was "easier on the employees" after January 15 because of instructions he had re-
ceived in connection with a 1959 union campaign not to mention the Union or change
working conditions . By so testifying, Erickson disclosed a willingness to exaggerate in
order to protect Lone Star and it is one of the reasons why 'I do not credit his testimony
on critical matters.
8 The warehouse had operated for years at a certain pace and it was probably virtually
impossible to change the tempo materially . My observation of the employees while testify-
ing makes me suspect that they could not have been speeded up to any degree over any
long period.
9 The above findings are based on the testimony of Williams and Manners which I
credit. Respondent 's statement in its brief that the testimony of a thief-Manners-
should not be credited is scarcely consistent with his promotion after the incident in
question ( see' infra ) and its contention elsewhere in its brief that he should be excluded
from the unit because he checks on the honesty of other employees and is therefore
analogous ,to a guard . I do not credit Maxfield 's testimony that he did not tell any em-
ployee that the Company was going to run off about half of the men. A major reason for
my doing so is that I find wholly incredible Maxfield 's testimony that he did not become
aware of the union activity until February-after the men had been discharged-when the
Company put a notice on the bulletin board and did not find out who had ' signed cards
until March or April. The Company had been notified on January 15 that 18 named em-
ployees had authorized the Union to represent them and I cannot believe that neither
Warehouse Manager Erickson nor Assistant Branch Manager Stoneking mentioned the fact
to Maxfield . Moreover , because of the letter the employees had no reason to be secretive
about their union activity. There are only 23 rank-and-file employees and Maxfield works
in close contact with them every day. In view of the foregoing facts, I do not believe that
Maxfield would have failed to hear anything about the Union until February and the
unreliability of his testimony in this respect causes me to disbelieve all of his testimony
concerning the Union or his comments concerning it.
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During this period , Supervisor Ruemke asked employee Otis Johnson if he had
heard anything about the Union and Johnson said no . A little later , Ruemke told
Johnson something like "he was told to push us around a little bit and pep us
up a little bit" or "Things are going to get kinda hot, I have orders to push them
up a bit." 10
On January 21 employee Clarence Gailes was in the warehouse and overheard
Warehouse Manager Erickson tell Assistant Branch Manager Stoneking , "We will
run half [of them] off and we will have it made ." Stoneking replied , "Whatever
you come up with let me know." 11
On or about February 1 or 2 Respondent posted the following notice in the
warehouse:
On January 14, 1963, the TEAMSTERS UNION (Local 968 ) filed a peti-
tion with the National Labor Relations Board, asking the Board to hold an
election among all "Truck Drivers , Truck Driver Helpers, Warehousemen,
Forklift Operators , and Shipping and Receiving Clerks" employed at Lone Star
Company's Houston branch.
The date on which the election is to be held has not been determined. How-
,ever , there will be a hearing on February 12th for the purpose of having the
Regional Director of the Board determine if this particular group of em-
ployees is an - "appropriate unit" or whether it should exclude some or add
other classifications of employees;
As a matter of fact , we are not positive that an election will-be held. About
3 years ago another TEAMSTER Local filed a petition for just such an
election , but later withdrew it when they found out that the only reason our
employees had gone to the Union was because they hoped the Union could
keep them from being discharged because of the results of a lie -detector test
they had taken a few days before they went to the Union . When the Union
failed to do this, it withdrew its petitions.
This time the Union wrote a letter to the Company and gave a list of the
18 employees it had signed up . Only, three of these were not drivers . Unfor-
tunately 10 on the list failed to pass the lie-detector test and were terminated
by the Company.
The employees who are ' eligible to vote will have the right to-determine for
themselves whether they want to turn over their rights of self -representation to
the infamous TEAMSTERS Union.
10 The above finding is based on the testimony of Johnson which I credit I discredit
Ruemke's denial that he made any such statement and his testimony generally concerning
material facts. For one thing, he testified, contrary to Respondent's other witnesses, that
the "only" time a driver is assigned a helper is if he leaves late or the customer demands
a helper . But more importantly , I find incredible . his testimony that he did not learn of
the union activity generally until February. See the comments, supra, concerning Max-
field's similar testimony.. Although his question of Johnson suggests that he may not have
known the identity of all the employees who had signed cards, I do not, believe that he
could have avoided learning that some of them had joined a , union. Indeed , Manners,
whose testimony I'credit, testified that he told Ruemke about the Union sometime during
'the week of,January 14, the same week that Manners admittedly reported the union activity
to Assistant Branch Manager Stoneking.
n Galles was hidden by a stack of whisky but recognized Erickson 's and Stoneking's
voices and saw them as they came out into the aisle. His testimony is corroborated to
-some extent by that of employee Parrott who testified that Galles told him on the after-
noon of January 22 what he had heard ' Stoneking and Erickson say. It is also my opinion
that if Galles had been fabricating the entire incident in order to support the General
Counsel's contention that the'employees were discharged because of their union activity,
he would have included some reference to the Union and probably would have made'some
reference to the method to be used, i.e., failure to pass the polygraph tests.- It is for these
reasons, inter ali'a, that I credit Galles' testimony and discredit that of Erickson and
Stoneking that no such conversation occurred. In crediting this testimony; I am aware
of the fact that •Gailes at one point testified that the incident occurred on the same day
the trucks were stalled which he said was January,14. However, he stated quite definitely
on other occasions that the events occurred on different days and that the Erickson-
Stoneking conversation occurred on'January 21. The inability of witnesses to recall the
exact day on which various incidents occurred seems to me quite understandable. Indeed,
I would be more hesitant to credit the testimony of a number of witnesses whose accounts
were `too "pat" 'and' varied not a whit. My reasons for discrediting the testimony of
Stoneking and Erickson generally are set • forth infra.
THE LONE STAR COMPANY 693
REMEMBER , you do not have to sign anything to be eligible to vote, nor
do you have to vote for the Union if you have signed a card or joined
up. REMEMBER , the only way the Union can keep its promises is by call-
ing a STRIKE-which could cost you your job! ! !
The same TEAMSTER Local has been striking at Peden Iron & Steel for
several months , and over 100 strikers have been replaced.
Did the TEAMSTERS get JOB SECURITY FOR THEM????7??
D. The alleged discriminatory discharges
1. Introduction 12
The Company has a policy of requiring its employees to take annual lie-detector
tests which are usually given in January . The employees began taking the tests
on January 15 at the office of Truth Verification , Inc., and by January 23 all of
the employees had taken the tests and Truth Verification had supplied Lone Star
with written reports on the results . On January 23 , Respondent discharged eight
employees , the stated reason being that they had. "failed" the polygraph test and
were, therefore , security risks . Four of the employees were sent for retests, the
polygraph company again furnished reports, and on January 29, two of the four
were discharged, the stated reasons being generally the same ones given the
employees discharged on January 23.
All of the employees allegedly discharged for failing the lie-detector test , except
William Manners, had signed union cards and their names were listed in the
Union's January 14 letter to the Company . According to the General Counsel,
Respondent used the reports on the tests as pretexts for discharging half of the
employees who had signed cards , its real motives being its opposition to union
representation and a desire to destroy the Union 's majority . The Company con-
tends that the discharges were wholly unrelated to the employees ' union activity.
The Company stipulated at the hearing that it relied only on the results of the
lie-detector tests in deciding to discharge the employees and that:
Prior to the giving of such tests it did not have evidence of specific acts of
dishonesty or specific acts of misconduct by any specific employee that had
been committed during the year 1962 or January 1963 , and that it did not
make or conduct an independent investigation after the giving of such tests to
verify the results furnished by Truth Verification, Inc.
2. The eight men discharged on January 23 13
Cleo Charles Gibson was employed by Lone Star in late 1958 and took six or
seven lie-detector tests during the course of his employment . About 8 : 30 a.m. on
January 15 , Warehouse Manager Erickson instructed Gibson to go to Truth Verifi-
cation for his 1963 test , saying that there was "nothing wrong, that it was just
time to take them like the Company did after the first of January each year." Gib-
son was terminated by Erickson on January 23. the stated reason being "as a result
of the lie detector test." Erickson also said that Gibson was a "security risk." Gib-
son testified that Erickson did not accuse him of "any wrong" and that he had
never stolen anything from the Company.
The report furnished the Company by Truth Verification states:
Subject does not clear questions ( 1) cheating the company on necks 14 and
(2) calling in sick when he actually wasn 't. Subject would make no admis-
sions. There is a good possibility that he might have stolen in the past and
a very good possibility that he has cheated the company on necks . Consider
him a security risk.
Although, as set forth more fully infra , the Company keeps daily records of
breakage reported by the employees , there is no evidence , other than the above
report , that Gibson had ever turned in a "neck " and his testimony that he had never
done so is undenied . Similarly, there is no evidence, other than the report , that he
had ever "called in sick" on any occasion.
12 The facts which are only summarized generally in this section are set forth more fully
infra.
13 The findings in this section are based on the largely undisputed and credited testi-
mony of the employees involved and company records.
14 The phrase "cheating on necks" Is explained infra.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clarence Gailes began working for the Company in October 1961. He had
taken five or six polygraph tests before the one in 1963 and at least three of them
-were given in connection, with specific shortages which he was able to "clear up"
satisfactorily. There is no claim that Truth Verification, had ever raised any ques-
tion concerning Gailes' honesty prior to 1963. Following Gailes' 1963 test, Truth
Verification sent Lone Star the following report:
Subject has many, many gripes.' Stated that his pay was too low, that he
had to do too much work. States that he does not know just how much he
is making per hour. States that he does not like the idea of having to leave
his COD payments in a box to be counted by someone else the next day because
he is being shorted. Stated that every pay day there is some taken out of
his check because of errors in COD payments. States that the only way the
company has been good to him is that when he, had an emergency they
loaned him some money. This person seemed very unhappy with the com-
pany. This person has taken the test about 5 or 6 times. He does not show
much response to the relevant questions. There could be reasons for this: (1)
he is completely innocent and therefore is unconcerned; (2) he has taken the
test'so many times that it does not bother him to lie which could be the reason;
(3) he is the type of person who, because of his environment, has learned or
been taught that stealing was not wrong and that everything that a person
can get and get away with is theirs. There [sic] it is possible that a combi-
nation of things, his lack of concern for the test, and his guiltless feelings over
stealing. Could be the reason for his lack of concern. Consider him a
security risk,
Gailes was discharged on January 23 by Warehouse Manager Erickson who told
him that he had failed his polygraph test and was a security risk. Gailes asked,
"What is a security risk?" to which Erickson replied'that he did not know, that "it
was handed down to him." '
Respondent introduced no evidence, other than the above report, to contradict
Gailes' testimony that he had nebCr stolen- from the Company and had never
manipulated a bottleneck.
William _ Manners began working for the Company in February 1959. He
estimated that he had taken eight or nine lie-detector tests in the course of his
employment. He did not sign a union card or engage in any union activity.
In the summer or early fall of 1962, he "manipulated a bottleneck," i.e., turned
in a "neck" and received a "free" bottle of whiskey.15 In the fall of 1962 Manners
was promoted from truckdriver to, as he understood it, "shipping and receiving
clerk." At the time of his promotion, Assistant Branch Manager Stoneking told
Manners that his new job included keeping his "eye on the men and seeing there
was no drinking or stealing carried on on the job or any other activities that
might occur that [weren't] in the best interest of the Company." In a discussion
with Warehouse Manager Erickson about his new job, Erickson told Manners that
he "expected" Manners "to let him know if the guys would try to go union." }e
On Sunday,, January 13, Manners learned about the union activity and on the
14th or 15th he reported the development to Assistant Branch Manager Stone-
king. When he asked Stoneking "how he felt about the situation" and "'Which way
[Manners] should lean," Stoneking replied that he did not have "the authority to
elaborate on the subject."
Manners took his 1963 lie-detector test on or about January-18 and Truth Verifi-
cation submitted the following report to Lone Star:
This Subject responds to the questions, "Have you cheated the company on
bottlenecks" and "Has anyone told you not to make any admissions?" Subject
w Although Manners testified that he turned in the "neck" as an experiment, i.e., to see
if employees could obtain whisky in this manner, it is clear that Respondent did not
know that Manners was conducting an experiment even if such was in fact the case.
161 Credit Manners' testimony in this respect and discredit Erickson's denial that he
made any such request in part because Manners was obviously in the habit of telling the
Company things he thought it would want to know about Furthermore, it is admitted
that Manners reported the union activity to Assistant Branch Manager Stoneking during
the week of January 14. Although Respondent points out in its brief that Manners re-
ported the union activity to Stoneking rather than to Erickson, Manners' testimony and
demeanor indicated a desire to appear important and I.flnd it entirely in character that he
would make his report to the mQst important company official he could.
THE LONE STAR COMPANY `695
would make no admissions. Feel that the problem lies in the area of cheating
the company an bottlenecks, , Cannot. clear him on the above questipn;,ang
consider him a security risk. .,
On January 23, Manners was told by Warehouse Manager Erickson that he- did
not pass the polygraph test` and was being terminated as a security risk. Manners
at first thought Erickson was "kidding" but when he realized that Erickson was
serious, he asked permission to see Assistant Branch Manager Stoneking. He told
Stoneking that he had "just had the shock of [his] life." Stoneking said that
Manners had done a good job and he had confidence in Manners saying that the
only thing he had heard was that he had turned in a "neck" on one occasion.17
Manners "kept hoping" that he, would be "reinstated" and while waiting around
to see what his "fate" would be, commented to Supervisor Maxfield that he "just"
did not understand why Erickson wanted to get rid of him because he had nothing
to do with the Union and knew nothing about it. Maxfield's reply was, "Oh,
Manners, they will probably let you work. . . . I know you didn't know anything
about the Union, didn't have anything to do with it." Manners, of course, had not
had anything to do with the Union and, his name was not listed in the Union's
letter.
Leon Mitchell worked for the Company for approximately 18 months in
1959-60. He was discharged in 1960 and his testimony that he was given no
reason for his termination is undenied. He was rehired about November 1961 and
was discharged on January 23, 1963. He took a preemployment polygraph test in
the fall of 1961, and the annual test in January 1962. He took and passed a test
in March 1962. He took his 1963 test on January, 18 and Truth Verification
reported to Lone Star:
Subject was tested on October 31 and January 18, 1962 and on both occa-
sions it was the Examiner's opinion that this person had failed to clear the
test. At the time he responded to shorting orders and keeping liquor-4nd to
stealing liquor from Lone Star Co. On the test of January 18, 1963, subject
does not clear the questions of cheating the company on necks, drinking on
the job and killing time on the route. Subject seemed unconcerned due; po$-
sibly to the fact that he. had failed the test two times before and was still
working. Consider him a risk.
Erickson told Mitchell that he was discharged for failing his polygraph test and
was therefore a "security risk." Mitchell denied having stolen anything from'the
Company or having manipulated a neck. The only evidence to the contrary in the
record are the reports of Truth Verification.
When Mitchell applied for unemployment compensation, he was asked why he
was terminated. He said because he was a "security risk." The employee who
took his application asked what that meant and Mitchell replied that he did not
know, that her "guess" was as good as his. That afternoon Mitchell went back to
Lone Star and asked Assistant Branch Manager Stoneking what "security risk"
meant. Stoneking said he was "in no position to tell" Mitchell what it meant.
Mitchell then asked if it meant that he had been stealing. Stoneking said, "Well,
not exactly" but added that there was a "lot of stealing going on with bottlenecks
[being exchanged] for whiskey.'' When Mitchell asked who was doing it, Stone-
king replied , "You know what is going on."
Elmer Hardy had been working for the Company for nearly 3 years when he
was discharged on January 23, 1963. Following his-taking of the test in 1962,
Manager Erickson told Hardy and employee Thornton that they were "good
37 I discredit Assistant Branch Manager Stoneking's -testimony that }Manners admitted,
after being told he was discharged, that he had manipulated more than one neck and credit
Manners' denial that he made any such statement . In the first place, I doubt that Manners
would have admitted to serious dishonesty . In the second place, assuming that be had
yielded to temptation on one occasion and was not conducting an experiment, as he
claimed, I do not believe that he repeatedly stole from the, Company and am certain that
he had not done so since his promotion. He was obviously anxious to please his superiors
and on several occasions reported misconduct by fellow employees. He Is a Negro and
was apparently the first Negro to be promoted by Lone Star to a position of some re-
sponsibility . I am sure that the Company would have checked his manifests carefully
before promoting him to a job which included keeping an eye on other employees and
would not have promoted him if he had turned in anything approximating a "suspicious"
number of necks.
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
workers" who got the work done and he was giving them a raise , adding "If you
continue to work like you are doing ... you got yourself a job as long as you
want it."
The report on Hardy's 1963 test is as follows:
Subject was tested January 11, 1962 and at that time it was the Examiner's
opinion that this person had not cleared the question of drinking in the
warehouse and stealing, liquor. On the test conducted January 17, 1963,
Subject responds violently to the question of calling in sick when he actually
wasn't. On the second test there is a violent reaction to theft from Lone Star
Company. Subject acted as if he were completely unconcerned about he
whole thing, made no admissions and when he was told that he was not
passing his test he just shrugged the whole thing off. Feel that he is a
risk, in the area of security.
Hardy was discharged on January 23 by Warehouse Manager Erickson who told
him he did not pass his test and was a security risk. Hardy asked, "What did the
man say I stole?" and Erickson replied. "The guy didn't say you stole anything."
Hardy then wanted to know what "the man" said he had done. Erickson an-
swered, "Nothing."
Hardy denied ever having stolen from the Company, manipulated a bottleneck,
or calling in sick when he was not sick. The only evidence to the contrary are
the reports referred to above.
Sam Henry Parrott began working for Lone Star about April 1961. He took a
lie-detector test in 1962 and another on January 17 or 18, 1963. Truth Verifica-
tion's report on the 1963 test reads:
Subject thinks his salary is too low and that he has too much work to
do. Subject is running a fairly nervous test . He has not cleared the question
of cheating the company on bottlenecks and to taking a drink on the job.
Would consider him a security risk.
On January 23, Warehouse Manager Erickson told Parrott that he did not pass
his test and that he was discharged. When Parrott protested that the lie-detector ma-
chine operator said he had a "good test," Erickson replied, "Well . . . that is what
they told me up there at the office. . . . I don't know anything about it...."
Parrott denied having stolen anything, having manipulated a bottleneck, or
having taken a drink on the job. The only evidence to the contrary in the record
is the report set forth above.
Theodore Calvin Cruise began working for Lone Star in May 1961. He took a
preemployment test and the annual test in January 1962 . According to Respond-
ent, Truth Verification reported after the January 1962 test that Cruise had a
drinking problem and he was warned by Erickson that he would be terminated if
the same report was made following the 1963 test. However, Parrott was given a
$15 raise at or about the same time. Truth Verification reported as follows with
respect to the 1963 test:
Subject was tested January 22, 1962 and at that time it was the Examiner's
opinion that this Subject had not cleared the question of theft from Lone Star
Company. Subject is running a very bad test on January 15, 1963. Cannot
clear him in anyway on theft from Lone Star Company. Very erratic test
with guilt indications throughout. Subject seemed unconcerned about the
test and this could be caused if nothing was done the last time when he failed
to clear the test. Consider him a security risk.
On the afternoon of January 23, Warehouse Manager Erickson told Cruise that
"due to that polygraph test" Cruise took a few days earlier, he was a "security risk
to the Company" and was being terminated.
Cruise denied having stolen anything or manipulated a bottleneck and the only
evidence to the contrary in the record are the reports from Truth Verification
referred to above.
Walter Mosie began working for Lone Star in February 1959. He took six or
seven lie-detector tests prior to January 1963:
The report on his 1963 test reads:
Subject responds primarily in the area of cheating the company on bottle-
necks and to taking gin or vodka. A test was conducted in which different
types of liquor were named and this Subject responded most to the question of
taking gin and/or vodka . Responses on the charts are not violent but do
indicate that Subject has not cleared the question of theft. Consider him a
security risk.
THE LONE STAR COMPANY 697
Mosie was discharged by Warehouse Manager Erickson on January 23 because
he did not pass his test and was a "security risk." Mosie protested that he did not
see why he did not pass, that he had not stolen anything. Erickson replied, "I
don't know anything about that. That is what they said."
Mosie denied having stolen anything, manipulated a bottleneck, or of having
ever "come up short" on his truck. Respondent introduced no evidence to the
contrary other than the above report.
3. The two men discharged on January 29 18
Kenneth Suber began working for the Company in July 1961. He took and
passed a lie detector test in January 1962. He took his 1963 test on or about
January 21 and the report submitted by Truth Verification states:
Subject responds on the test to the questions of theft from the company
himself and to suspecting someone of stealing from the company. On the
second chart there is a greater response to the question of, "Have you actually
seen anyone steal from the Lone Star Company?," than to the question, "Have
you stolen from the Lone Star Company?" This indicates that this person is
more concerned about what he has seen than what he has done. Feel with a
stern warning and proper supervision he can be retained.
Shortly thereafter, Warehouse Manager Erickson notified Suber that he would
have to take another test because he had not passed the earlier one. According to
Suber, when he reported for the second test he "was a little shook up, wasn't
positive" that he would "pass it because everybody else had left."
Truth Verification's report on the retest reads:
Cannot clear on`theft from Lone Star Co. Responds to theft of 1 case and
to theft of a bottle. Feel that he is a security risk.
On January 29, Manager Erickson notified Suber that he did not pass his lie-
detector test, that he had grown to like Suber but his job was just like Suber's, that
he worked there the same as Suber, that Suber was terminated, that he was a
security risk. When Suber asked if he was being discharged for fighting, steal-
ing, or drinking, Erickson said, "No," that he was discharged because he was a
security risk.
Suber testified that he had never stolen anything from the Company, had never
taken a drink on the job, and had never been accused by Respondent of doing
either. There is no evidence to the contrary in the record other than the above
report.
Otis Johnson had been working for the Company for 2 years when he was
discharged. He took a polygraph test in 1962 and another in January 1963.
Following the 1963 test, Truth Verification made the following report to Lone Star:
Subject states that he is not too friendly with the younger drivers. He
states that they all stop talking when he comes around. He states that he and
Mr. Erickson talk a lot about baseball and that he doesn't pal around with
many of the newer drivers. This person is running a very nervous test. He
does react on the test to stealing from Lone Star Co. It is quite possible that
this person might have a guilt complex because on the second chart the
question was asked, "Have you stolen 25 cases of liquor from Lone Star
Co." Subject responds to the above question just about as much as to all the
other questions, indicating that he is reacting to the word, steal. Would
suggest close supervision. I would recommend that if'this person is interested
in clearing his test that he be retested. 1 '
When Johnson returned to the warehouse from a run about noon on January 29,
he was told by another employee that his name had been scratched off the laundry
list which indicated that he would not be needing anymore uniforms.1e A few
18 The findings in this section are based on the largely undenied and credited testimony
of the employees involved and company records.
191 credit Johnson's testimony in this respect and think that his name was probably
scratched o8 the list. Respondent does not deny that it maintains such a list or that
names of employees are "scratched off" at or about the time they are discharged. Erickson
testified only that he was sure that Johnson's name was not "scratched off" the list at the
time the men were discharged on January 23. `
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
minutes later, he was sent to take a second polygraph test. Thereafter, Truth
Verification reported:
Subject responds too violently to questions of, "taken whiskey have not paid
for" and "have you been honest with Lone Star Company." Runs a very
nervous test as before, feel that he has not cleared and is a security risk.
Later that afternoon, Erickson told Johnson, "I' have some bad news for you.
When you work around people for a while, there are certain people you begin to
like. You like their work. But I am going to have to let you go because you
are a security risk."
E. Analysis and conclusions
1. The supervisor question
It is undisputed that checkers Maxfield, Ruemke, and Walker do not have the
authority to hire and fire generally although they do have the authority to hire and
discharge "extra" help during rush periods in the absence of Warehouse Manager
Erickson and to grant employees short periods of time "off" in Erickson's ab-
sence .20 They also at times "decide when enough work is done" at the close of the
day so that the employees can leave. They do not have the authority to reward,
promote, suspend, layoff, recall, transfer (as distinguished from assignment of
work), adjust grievances, or effectively to recommend action in any of these areas.
On the other hand, they regularly assign work, direct the men, and control the
pace of the operation. For example, Maxfield testified that he had assigned help-
ers to trucks, a matter which clearly called for the exercise of independent judg-
ment , and Ruemke testified that Erickson would tell him to "speed up" the men "if
I don't do it on my own." Also, according to Maxfield, his "primary responsibil-
ity" is to see that the men work, get the trucks loaded, the merchandise out," and
that Ruemke and Walker have "relatively" the same job.21 Maxfield signs or
initials the employees' daily manifests and was present when the employees were
terminated.22
On the basis of the foregoing facts, I conclude that Maxfield, Ruemke, and
Walker assign and responsibly direct the work of the employees and that they have
the power to hire and discharge "extra" 'labor and that Maxfield, at least, has exer-
cised that power. It follows, therefore, that they are supervisors within the meaning,
of Section 2(11) of the Act.23 -
At the' hearing, at least, Respondent appeared to take the position that if Max-
field, Ruemke, and Walker are supervisors, Manners is also a supervisor. --
According to Manners, he was never given a "definite" or "official" title follow-
ing his promotion from truckdriver but he understood that he was a "shipping and
receiving clerk." He testified that he was told that his authority was the "same as
the other checkers" but that he never "experienced: that authority and did not load
trucks as the checkers did. As Manners put it, the checkers "took more responsibil-
ity or more authority in ordering the men or telling [them] what to do, whereas
I did not exercise that privilege." He also testified that he got his instructions
from Manager Erickson and Checkers Maxfield, Ruemke, and Walker and that his
duties were to unload boxcars and trailers and to " administer the men in cutting half
cases," to see that they were working and not doing something else . He actually
helped unload the merchandise unlike Maxfield, Ruemke, and Walker who do little
or no physical labor.
20 Apparently this does not happen very often and does not involve any great amount of
judgment. The checkers also substitute generally for Erickson when he is on vacation.
21 Ruemke testified that he has the same duties "generally" as Maxfield. Walker was
not a witness . Counsel for Respondent did not question any witness concerning the
authority of Maxfield, Ruemke, and Walker to assign or responsibly direct work and his'
question of Ruemke concerning the latter's power to "discipline" employees was limited to
his power to discipline them "by demoting" them or reducing their hours of work. Re-
spondent does not discuss the supervisory issue in its brief except to state generally that
it does not believe that the checkers are supervisors.
22 The record indicates and Respondent suggests in its brief that.Maxfield's position is
a "cut above" that of Ruemke and Walker.
zs See also the information sheet prepared by Polygraph Operator McBride following his c
conversation with Warehouse Manager Erickson which states that Erickson had tinformed:
McBride that Truth Verification would conduct tests on allidrivers, warehousemen,, and.
"supervisors 11
THE LONE STAR COMPANY 699
When company counsel asked Respondent's witness Maxfield- who has "relatively
the same job" that Maxfield had, he answered, "Walker and Ruemke." Counsel then
asked Maxfield what Manners' job was and Maxfield replied that Manners was
"mostly in training, just be like ours, but I think they had him classified as
receiving clerk and checker but he was mostly in training. He didn't load trucks
like we did. He checked merchandise in." Maxfield was asked on cross-examina-
tion if Manners had the same authority as himself, Ruemke, and Walker to hire
extra help. Maxfield replied, "No, sir, he was in training." Maxfield also indicated
that only the three checkers assign work and Manners' testimony indicated that
Maxfield selects the men who work with Manners. Erickson was asked if Maxfield
would have the authority, in Erickson's absence, to send home an employee who
reported to work drunk. Erickson answered, "Anyone of the three [checkers]
would have the authority." [Emphasis supplied.]
Employee Gibson listed Manners as one of his supervisors, Manners clearly
regarded himself as part of management,24 and there is no doubt that he had more
authority and responsibility than the other rank-and-file employees. However, I
find on the basis of all the facts that Manners was not a supervisor within the
meaning of Section 2(11) of the Act but that, on the contrary, his job amounted to
little more than "keep[ing] all hands busy" and the "discretion given him appears
to be routine in the natural sense of that work." Precision Fabricators v. N.L.R.B.,
204 F. 2d 567, 568-569 (C.A. 2). See also Poultry Enterprises, Inc. v. N.L.R.B.,
216 F. 2d 798, 799 (C.A. 5); N.L.R.B. v. Valentine Sugars, Inc., and Valite Corp.,
211 F. 2d 317, 322 (C.A. 5).25
2. The alleged interference, restraint, and coercion
For the reasons previously stated, I have found that there was no real "speed-up"
in the work or change in working conditions generally. Although I have found
that statements were made by various management representatives indicating that
work would be "speeded up," I do not believe that in the context in which they were
made that they constituted interference, restraint, and coercion. Nor do I find that
the statements about running off half of the employees or that employees who
"talked back" would be discharged violated Section 8(a)(1) of the Act, again
because I believe that they were too general to be interpreted by the employees as
threats of discharge for engaging in union activity.
Nonetheless, I believe that the remarks have significance for they disclose that
the Company was thinking about eliminating half of the employees and was
considering ways and means to accomplish that result. It is true, as Respondent
points out in its good brief, that it could have discharged the employees for not
working fast enough or for "talking back." But it probably would have been
very difficult for Respondent to establish that a mass discharge for such reasons,
without prior warning, was a bona fide discharge for cause. Cf. N.L.R.B. v.
Griggs Equipment, Inc., 307 F. 2d 275, 278 (C.A. 5). In the meantime, Truth
Verification was testing the employees and had been requested to make written
reports and "security risk" findings. • (See infra.) These reports were received on
January 23 and eight employees were discharged that day. Two more were dis-'
charged on, January 29.' Nine of the ten-along with nine other employees-were
listed in the Union's letter as having authorized the Union to represent' them.
Although I have found that the statements did not violate Section 8(a)(1) of
the Act, I have taken them into consideration in determining the motive for the-
discharge of 10 employees shortly thereafter. I do not understand that in order to
be "evidence" of motive, statements must constitute independent violations of Sec-
tion 8(a)(1) of the Act. For example, testimony by one management representa-
tive that he was directed by another management 'representative to find a "pretext"
for discharging half the union members could surely be used as evidence of motive
when considering the subsequent discharge of union members although the state-
ment would not violate Section 8 (a) (1) if it was not communicated to or overheard
by any employee. See Hendrix Manufacturing Company, Inc. v. N.L.R.B., 321 F.
2d 100, 103-104 (C.A. 5).
24 Manners' sense of his own important has already been noted and I think that he was
inclined to exaggerate his position. He was not invited to the Christmas party as were
the checkers, his explanation being that the party was not for "colored."
u See also N.L.R.B. v. Southern Bleachery & Print Works, Inc., 257 F. 2d 235, 239
(C.A. 4); cert. denied 359 U.S. 911; N.L.R.B. v. Swift & Company, d/b/a New England
Processing Unit, 292 F. 2d 561, 563 (C.A. 1). -
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint also alleges that the statement in the notice posted by Respondent
on or about February 1 that the only way the Union could keep its promises was by
striking which could cost them their jobs violated Section 8(a) (1) of the Act.
Since the statement was followed by a reference to the replacement of strikers at
another plant, and since it is undisputed that an employer has the right to replace
economic strikers, I do not find that the statement that a strike "could" cost the
employees their jobs violated Section 8(a) (1) of the Act.
I believe, however, that the statement in the notice violated Section 8 (a)( 1 ) of
the Act in another respect, i.e., that it indicated to the employees that seeking to
bargain collectively would be futile because the "only" way the Union could keep
its promises was by striking. Since unions have been known to keep at least some
of their promises through collective bargaining, the above statement suggests, at
the very least, that collective bargaining would amount to nothing more than
"mere shadow boxing to a draw." Cf. Stonewall Cotton Mills, Inc. v. N.L.R B., 129
F. 2d 269, 631 (C.A. 5), cert. denied 317 U.S. 667. Such a statement, made prior
to any hint about what the Union's demands would be, is scarcely consistent with
the Company's duty to "approach the bargaining table with an open mind and
purpose to reach agreement consistent with the respective rights of the parties."
L. L. Majure Transport Company v. N.L.R.B., 198 F. 2d 735, 739 (C.A. 5). See
also N.L.R.B. v. Herman Sausage Company, Inc., 275 F. 2d 299, 231 (C.A. 5).
However, because the complaint did not refer to this aspect of the statement, I
do not find that it violated the Act. But, again, I have considered it in reaching
my conclusions with respect to the refusal-to-bargain and discharge issues.
3. The alleged refusal to bargain
Respondent received the Union's bargaining request on January 15. It never
replied and no explanation was ever given for its failure to do so. The Union filed
a representation petition on January 14 which was received by Respondent a day or
two later. When a Board representative called Respondent's attorney on or about
January 18 about a date for the hearing on the petition, the attorney stated that
hearing would be necessary because there were questions about the unit described
by the Union, i.e., that the status of the checkers was in doubt and no reference
was made to the warehouse office clerical help.
In its brief, Respondent raises numerous questions about the unit described by
the Union, asserting generally that it was "ambiguous and perplexing." Respond-
ent has 23 rank-and-file employees and the unit was described as including "truck-
drivers, truckdriver helpers, warehousemen, fork-lift operators, and shipping and
receiving clerks." If Respondent had questions concerning this unit description,
the simplest and most obvious way to have them answered would have been to tell
the Union what they were and hear what the Union had to say. In short, the
existence of questions would seem to be a reason for answering-rather than for
ignoring-the Union's letter.
According to Respondent, the main question arose out of the Union's inclusion
of "shipping and receiving clerks" because the Company did not have any such job
classification and did not know whether this was meant to include Checkers Max-
field, Ruemke, and Walker and "trainee" Manners. As it turned out, both agreed that
the three checkers should be excluded although for different reasons.26 The Union
originally regarded Manners as a supervisor and it would therefore have excluded
him; if the Company took the position-as it appears to do in its brief-that he
should also be excluded because he, too, checked on the honesty of other em-
ployees, again there would have been no disagreement. But if the Company had
wanted to include Manners, it seems unlikely that the Union would have made an
issue of it.27 Be that as it may, Respondent's failure to communicate its alleged
questions to the Union deprived the latter of the opportunity to answer them or,
if it was unable to-do so, to agree to the unit deemed appropriate by the Company.
The Hamilton Plastic Molding Company, 135 NLRB 371, 373.
This leaves the "recapper." Although the Union's petition excluded office cleri-
cals from its unit description, the Company's brief states that it did know whether
or not the Union meant to include the recapper in the classification "shipping and
26 The Union would,exclude them as supervisors, the Company because they checked on
the honesty of other employees.
27 The Union's amended charges asserted that Respondent violated the Act by engaging
in certain conduct involving "supervisor Manners." But the Union's ability to prove that
the Company engaged in conduct violative of the Act would not be materially jeopardized
by classifying Manners as an employee. If anything, it might have been improved.
THE LONE STAR COMPANY 701
receiving clerks." 28 'But again , the simplest way for the- Company to have found
out was to ask the Union.
The recapper works exclusively in the warehouse office. His work does not
bring him in regular contact with the drivers, warehousemen, et al., nor does he
keep records (i.e., production records) relating to the work they perform. The
testimony of Checker Maxfield indicates that he does not supervise the recapper as
he does all of the other rank-and-file employees, and it is clear that the recapper has
no close community of interest with the "production and maintenance" emL
ployees. I find therefore that he is an "office clerical" rather than a "plant clerical"
and as such not within the unit appropriate for bargaining. Lilliston Implement
Company, 121 NLRB 868, 870; Victory Grocery Company, a Division of E. J.
Keefe Company, 129 NLRB 1415, 1417; E. H. Koester Bakery Co., Inc., 136
NLRB 1006, 1013-1014.
It is thus apparent that the unit questions expressed by Respondent to the Board
representative did not involve fundamental principles or policies but in all probabil-
ity could have been resolved by an exchange of letters or telephone calls between
the Company and the Union.29 This probability was greatly increased by the fact
that the Union had so many cards that it could establish its majority in any unit
proposed by Respondent.SO In my opinion, it was for these reasons that the Com-
pany did not reply to the Union's letter and never told the Union the questions it
assertedly had concerning the appropriateness of the unit. Needless to say, a
resolution of the unit "question" would have eliminated the necessity for either a
hearing or an election.
I do not believe that counsel's statement to a Board representative is an adequate
substitute for a reply to the Union. The Board representative was under no duty to
transmit to the Union the statements of company counsel. Although I assume
that he reported to the Union that the Company questioned the unit, there is no
evidence that he explained the basis for the Company's position. Since the Board
representative was not familiar with the job classifications at the warehouse or the
employees involved (this was long before the first charge was filed); the questions
raised by counsel would have little meaning to him and he would have no reason
to suppose that the Union could probably solve the unit problem in a few minutes
if it knew what questions the Company was raising. In any event, it was not the
duty of the Board agent but the Company to tell the Union that it questioned the
unit and why.
In order for an employer's doubt concerning the appropriateness of the unit to
be a defense to a refusal-to-bargain charge, it must be asserted in good faith.
Failure to reply to the Union's bargaining request and/or to express its doubts as
to the unit, thereby depriving the Union of the opportunity to answer the Com-
pany's questions or agree to the unit claimed by the Company to be appropriate, are
wholly inconsistent with a claim that it in fact had a good-faith doubt as to the
unit. Such conduct, I believe, discloses an attitude toward the rights of its em-
ployees and its duty to bargain wholly incompatible with the Company's obliga-
tions under the Act.
As previously noted, the Company's opposition to the collective-bargaining proc-
ess is also disclosed by the statement in its February notice which reminded the
employees that "the only way the Union can keep its promises is by calling a
STRIKE...." [Emphasis supplied.]
In addition, within 2 weeks of receipt of the Union's letter-and prior to the
date set for the hearing on the Union's petition-Respondent discharged half of
the Union's 18 members, thereby destroying its majority.
On the basis of the above facts, I conclude and find that Respondent's conduct in
failing- to answer the Union's letter requesting bargaining was not motivated by
a good-faith doubt as to the unit but by an opposition to the principle of collective
bargaining and by a depiXe to gain time within which to ` destroy the Union's
majority status and bargaining position. Galloway Manufacturing Corporation,
136 NLRB 405, 408-409; Edward Fields, Incorporated, 141 NLRB 1182,
1194-1195.
9 Cf. the statement elsewhere in Respondent's brief that "there are possibly four (4)
employees [Maxfield, Ruemke, Walker, and Manners ] who conceivably could be meant by
this term ." [ Emphasis supplied.]
9 At one point in the hearing, company counsel pointed out that there was no comma
between "shipping" and "receiving" and that this raised the question whether the Union
meant one classification or two.
°° It is common practice for the parties to agree on the unit without going to hearing
and without a determination by the Board or one of its representatives.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board cases indicate that the Union 's request for bargaining need not describe
the unit with the preciseness required in the days of common law pleading.31 The
Act encourages collective bargaining in the public interest and its purpose should
not be thwarted because the Company had "questions" concerning the unit which
almost certainly would have been answered had they been communicated to the
Union. In cases such as this, the Union's only source of information concerning
job classifications is the employees who, in the instant case, are not very well-edu-
cated Negroes whose knowledge of Lone Star's job titles was understandably not
very accurate. In my opinion, the fact that they gave the Union information
which caused it to include a job classification about which the Company might
have some questions did not justify the Company's failure to make any reply.
Indeed, in a case in which the Board found that the company did not refuse to
bargain in violation of Section 8(a)(5) of the Act because the unit requested by
the union was more narrow than the one later found by the Board to be appro-
priate, the Court of Appeals for the District of Columbia Circuit reversed the
Board on the ground that the latter's conclusion appeared "arbitrary." Brewery
and Beverage Drivers and Workers, Local No. 67, International Brotherhood of
Teamsters, etc. (Washington Coca-Cola Bottling Works) v. N.L.R.B., 257 F. 2d
194, 196-197. In reaching its conclusion, the court cited the history of bargain-
ing for the smaller unit, the company's failure to challenge the unit until the
hearing, the company's refusal to bargain for any unit, its commission of serious
unfair labor practices in an effort to undermine the union, and the fact that the
company could not have "legitimately" doubted the union's majority status since it
possessed a clear majority in either the smaller or larger unit. Lastly, the court
pointed out that the variance between the unit sought and the one later found
appropriate was not "substantial" since the employees added by the Board were in
training for the job classifications for which the union requested the company to
bargain.
Concededly, all the facts relied upon by the court in the case just cited are
not present here. But the principle underlying the court's decision seems equally
applicable, i.e., that an employer cannot successfully plead as a defense to a refusal-
to-bargain charge, an "error" or "ambiguity" in the unit requested by the union
if the company does not apprise the union of the alleged error or ambiguity, if
the company knows that the union possesses a clear majority in the unit which
the company believed appropriate and/or the unit subsequently found appro-
priate by the Board, and if it commits serious unfair labor practices in an effort to
undermine the union's majority. To hold otherwise, would permit an employer to
deprive his employees of their rights under the Act because of a minor variation
-between the unit described in the union's request and petition and the one in fact
appropriate. Ottenheimer and Company, Inc., 144 NLRB 38.32 Such a result, in
-my view, would defeat rather than effectuate the policies of the Act.
Having found that checkers are supervisors, they are of course excluded from
the bargaining unit.. Since the recapper is an office clerical , he is also excluded.33
This leaves Manners who has been found to be an employee although he has
more responsibility than the other rank-and-file employees. In its brief, Respond-
ent points out that Manners ' duties include keeping an eye on the employees to
see that they do not steal anything and to report suspicious incidents to his supe-
riors . It argues , therefore , that he is "analogous" to a guard and should be ex-
cluded from the unit. I do not agree.
ffi The Act does not even require that the complaint issued by the Board specify the con-
duct alleged to violate the statute with "the particularity of pleading of an indictment nor
the elements of the cause like a declaration at law or a bill of equity." N.L.R.B . v. Piqua
Munising Wood Products Co., 109 F . 2d 552 , 557 (C .A. 6) ; N.L.R.B. v. Red Arrow
Freight Lines, Inc., et at., 180 F . 2d 585, 587 ( C.A. 5), cert . denied 840 U .S. 823. As
the court pointed out in Consumers Power Company v. N.L.R .B., 1'13 F. 2d 38 , 48 (C.A. 6),
the sufficiency of a complaint is to be considered in the light of the fact that a Board
proceeding is not "punitive but preventive and in the interest of the general public."
32The circumstances in this case are materially different from those in Mike Persia
Chevrolet Co., Inc., 107 NLRB 377 , where the union at different times advocated appro-
priate and inappropriate units of substantial dissimilarity by reason of the number of
employers involved.
as As noted supra, the Union's petition which the Company received about the same time
as the Union 's letter , excluded supervisors . and office clericals . Cf. N.L.R.B. v. Sunrise
Lumber & Trim Corp ., 241 F. 2d 620 ( C.A. 2), cert. denied 355 U .S. 818 , enfg. 115
NLRB 866.
THE LONE STAR COMPANY 703
Manners' primary ;job is to unload boxcars and trailers and to keep the pion
busy. He is not expected to spend ,any definite part of his time at detecting thefts
or other misconduct but only to report anything he observes in the course Of
performing his job . I assume that all employees are expected to do the same,
particularly Calvin Graves who is an unofficial "informer." Although reporting
suspicious incidents is a specific part of Manners ' job assignment , he has no more
authority to take action in such cases than do his fellow employees . See, for
example, Manager Erickson's testimony that the three checkers would have the
authority, in his absence , to send home an employee who reported to work drunk.
In sum , Manners ' duty to report anything suspicious is only incidental to his full-
time job of unloading and checking merchandise and keeping "all hands busy."
I conclude, therefore, that he is not a guard or analogous to a guard and
include him in the unit . Cf. Watchmanitors, Inc., 128 NLRB 903, 905. The
Centor Company , 136 NLRB 1506 , 1507, 1508.
Accordingly, I find that the following employees at Respondent 's Houston
branch constitute a unit appropriate for collective bargaining within the meaning
of Section 9(b) of the Act : all truckdrivers , truckdriver helpers , warehousemen,
fork-lift operators, and checker-receiving clerks employed by Lone Star , i.e., em-
ployees having duties similar to those of employee Manners at the time of his
discharge, but excluding office clericals , salesmen, guards, watchmen , and supervi-
sors as defined by the Act.34
Since the record establishes and Respondent has never denied that the Union
represented well over half of its rank-and-file employees in the above unit (and in
any other unit which could reasonably be deemed appropriate ) at the time of its
bargaining request , I find that the Company 's failure to reply to the Union 's letter
violated Section 8 (a) (5) and ( 1) of the Act . As previously stated, the facts cause
me to conclude that its action was not due to a good -faith doubt concerning the
unit described by the Union in its letter and petition but by opposition to collective-
bargaining generally and by a desire to gain time within which to destroy the
Union's majority, as it in fact did by discharging , shortly thereafter , half of the
employees who had signed cards.
But even if the Company did not violate Section 8(a) (5) of the Act by failing
to reply to the Union's letter, restoration of the status quo and effectuation of the
policies of the Act require that the Company be directed (and I will so direct it)
to bargain with the Union which was the majority representative of its employees
in an appropriate unit at the time of the request and prior to the discharge of
'half of the union members . As found , infra, the discharges were motivated by a
desire to destroy, and did destroy , the Union 's majority and its status as the bar-
gaining representative of the Company 's employees . The Board and the courts
agree that in such situations a bargaining order is necessary to prevent the em-
ployer from reaping the benefit of his own illegal conduct (the discharge of
employees in order to destroy the Union 's majority) and to restore as nearly as
possible the situation which would have existed but for the employer's unfair labor
practices . International Broadcasting Corporation (KWKH) 99 NLRB 130, 132-
134; Greystone Knitwear Corp . and Donwood, Ltd., 136 NLRB 573, 575-576;
Summit Mining Corporation v. N.L.R.B., 260 F. 2d 894, 900 (C.A. 3); D. H.
Holmes Company , Ltd. v. N.L.R.B., 179 F. 2d 876, 879 (C.A. 5); N.L.R.B. v. Joe
and Mike Caldarera , d/b/a Falstaff Distributing Company, 209 F. 2d 265, 268-
269 (C.A. 8).
4. The alleged discriminatory discharges
a. Respondent's security problems generally and its
countermeasures through 1961
Respondent's security problems over the years, particularly in Houston,
Were described by Company Vice President A. E. Dillon whose office is in Dallas.
' , In 1956 or 1957, at Lone Star 's request , the Burns Detective Agency placed an
"undercover" man in the warehouse after the branch had experienced "thefts, drink-
ing on the job, merchandise for which [the Company] was unable to account,
disappeared . . ." In early 1959 the branch 's inventory "reflected a rather large
inventory shortage" and it was of "such a degree " that Dillon made arrangements
with Truth Verification to give the Houston employees polygraph tests.35 The
84 Respondent 's records indicate that Manners ' job title was "checker-receiving clerk."
' Truth Verification did not have a Houston branch at that time and an operator was
sent from Dallas.
704 DECISIONS OP' NATIONAL LABOR RELATIONS BOARD
-tbcord' does n8t disclose he amount of the losses.36 -According to Dillon, 22 or
;23 of the 27 or 28 employees were discharged "as a result of the tests."
In late 1960, Houston again "had substantial shortages'... in [its] records". or
a substantial amount of merchandise missing" and Truth Verification again tested
the employees. It was shown Dillon went on, "that six or seven . . . employees
were guilty of thefts of a substantial amount" and Truth Verification "took signed
statements" from these six or seven employees in which they confessed stealing
from the Cotiipany. The losses amounted to more than $7,500 which Lone Star
recovered front its bonding company. Needless to say, the guilty employees were
discharged.
In early 1961,' the Houston police picked up a Lone Star driver for a
traffic violation and found a pistol and some cash and papers belonging to the
Company in his truck. A check of other drivers disclosed "shortages in their
funds, and so on ," i.e., shortages in money collected from customers or C.O.D.
money. Seven employees were involved and criminal charges were filed against
them. The Company recovered approximately $10,000 from the bonding company.
Apparently, lie-detector tests were not given at that time.
In early 1961 Lone Star in Dallas entered into a contract with Truth Verification
to conduct 50 polygraph tests a year among Houston personnel and individual
tests were given from time to time in connection with specific shortages or
incidents and one or more individuals were discharged as a result of the incidents
and/or the tests. Preemployment tests were also given.
The first "annual" tests were given in 1962. According to Dillon and other
company witnesses , instructions were issued from Dallas that any one who "failed"
the polygraph test was to be discharged.
b. Respondent's decision to require its employees to take
annual polygraph tests
Neither the General Counsel nor the Union denies that it is possible for em-
ployees to steal liquor from the Company and that they have done so in the past. It
also appears that dishonesty has been a particular problem in Houston . One of the
methods available to a driver is to call in "short," i.e., to notify the Company
untruthfully that he is some amount short on his truck thereby obtaining liquor for
his own use. Another is by keeping , instead of returning , an "overage" on his
truck. Still another is by "manipulating " a bottle neck . This procedure consists of
turning in a bottleneck with tax stamps intact , as "proof" that the bottle was broken
in transit, and receiving a replacement. Because mistakes in loading and accidents
occur, unless the Company has reason to suspect otherwise, it assumes in its day-to-
day operations that the truck was loaded "short" or the bottles were broken either
on the truck or during unloading. However, because temptation is ever present
and employees have been known to yield to it, the Company wants to determine, if
possible, whether any of its employees have in fact stolen either from the Company
or its customers on one or more occasions . Its witnesses testified that it was partly
for this reason that it decided to require the employees to take annual polygraph
tests . They also believed, according to their testimony, that employee knowledge
that tests would be given annually might have a deterrent effect.
The General Counsel and Union contend that polygraph tests are so unscientific
that little or no reliance can be placed upon them and there is evidence in the
record to support their claim. The Company, on the other hand, presented evi-
dence that polygraph tests are highly reliable and that they are used extensively by
law enforcement agencies and other groups, both public and private, with security
problems.
It is obviously impossible for me to determine how reliable - the tests are,
either scientifically or practically.87 Company officials are in no better position to
judge their accuracy from a scientific point of view , as they frankly admitted. They
pointed out; however , that ,losses at the Houston office had declined sharply since
,the employees were required to take the tests,
w At one point , Dillon indicated that the losses were $7,500 but it may be that he was
,oonfused about the year and was referring to the losses in 1960.
87 The record does indicate that the techniques used may cause testees to "confess" to
at least minor misconduct in order to "clear" themselves of more serious charges. It also
appears probable that testees may confess when assured-either truthfully or untruth-
fully-that the "lie -detector" indicates that they are not telling the truth.
THE LONE STAR COMPANY - 705
In view of the considerable use of polygraph tests by law enforcement agencies
and others, the Company's real security problem, the use of tests in previous years,
and the fact that arrangements for the 1963 tests were made before the Company
had notice of any union activity ( see infra), I conclude that the decision to test the
employees in January 1963, was wholly unrelated to the union activity and was
based on the good-faith belief that such tests could disclose misconduct and/or act
as a deterrent to such conduct in the future.
A polygraph or lie-detector machine records autonomic responses, i.e.,
changes in the testee's respiration rate, blood pressure, and sweating' (galvanic
skin response) to relevant or incriminating questions and to irrelevant or nonincrim-
inating questions. The responses, which are recorded on a chart (polygram),
are obtained by placing a tube around the person's chest, a blood pressure cuff
around his upper arm, and by attaching a band or other device to his palm or
finger tips.
Before being tested, the person is interviewed by the operator who usually tells
the testee most, although perhaps not all, of the questions he will be asked. The
usual test consists of 10 and 12 questions and lasts about 3 minutes. Five or six
of the questions will be irrelevant or nonincriminating such as, "Is today Tues-
day?" The other five or six are relevant or incriminating such as "Have you
stolen any liquor from Lone Star?" The nonincriminating and incriminating
questions are usually alternated.
If the testee's responses (respiration, blood pressure, sweating) do not rise when
he is asked and is answering the nonincriminating questions but rise when he is
asked and is answering the incriminating questions, he is said to have given
a "good" or "strong" response. This creates at least a suspicion that the incrimi-
nating question or questions are ones which the testee does not like being asked and
that his answer or answers may not be truthful 98 A second test is often given after
an interval of 5 minutes or even 10 or 15 minutes. During the interval, the
operator discusses with the testee his "good" responses to incriminating questions
and gives him an opportunity to explain why he responded to them. It is during
this period (and to some extent during the pretest interview) that the testee may
confess to minor thefts in order to reduce his response to questions on the second
test concerning larger thefts 39
c. Respondent's policy with respect to minor thefts and its action
with respect to the 1962 tests
Notwithstanding Respondent's legitimate concern over security, it is clear that it
does not automatically discharge an employee for stealing one bottle of liquor or
manipulating one neck, perhaps because experience has shown that it cannot oper-
ate otherwise. Thus, for example, it not only did not discharge William Manners
after learning that he had "manipulated" a bottleneck but promoted him to the
position of checker-receiving clerk, a job which included "keeping an eye on"
other employees 40 Furthermore, according to Assistant Branch Manager Stone.
king, after.the 1962 tests:
I congratulated these men on the manner in which they had worked and
handled their business in the fall, and I congratulated these men, on having
taken their annual polygraph tests and still holding their jobs....
I also told them that we had reason to believe that there may or may not
have been stealing going on, and . . . on future examinations that we would
tolerate neither drinking nor stealing . [Emphasis supplied.] 41
58 Respondent's witness Hatcher and Trial Examiner's witness McBride both stressed the
fact that in order for the test to be reliable, the person taking it must be doing so
voluntarily.
89 This second test is not to be confused with the "retests" given four employees in this
case about a week after their first visit to Truth Verification. The two tests discussed
above are run during the same "sitting."
40 Although Respondent stated at the hearing that one reason it did not discharge
Manners for the bottleneck incident was that it would have disclosed that employee Graves
was an informer, this explanation certainly does not explain why it promoted Manners.
41 This meeting is discussed in greater detail infra.
770-076-65-vol. 149-46
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As stated supra, the first "annual" tests were given in Houston in 1962 and,
according to company witnesses, it was the company policy that anyone who failed
the test would be discharged automatically. There is no evidence that any particu-
lar problem existed in late 1961 or early 1962 or that the 1962 tests led to the
discovery of any actual losses. Written reports were not submitted 42 Instead, the
polygraph operator telephoned the results to Warehouse Manager Erickson. Er-
ickson testified that he made some notes concerning the reports but destroyed them
after discussing the reports with Assistant Branch Manager Stoneking.43
According to Warehouse Manager Erickson and/or Assistant Branch Manager
Stoneking, Truth Verification reported that all of the employees passed except
Elmer Hardy, Theodore Cruise, Walter Mosie, Lorenza Gayles, Ed Pflughaupt,
Calvin Graves, Leon Mitchell, Robert Box, Eddie Hall, and Roosevelt Jam-
mer. The first five, Hardy, Cruise, Mosie, Gayles, and Pflughaupt, were reported
to have a "drinking" problem. The polygraph operator explained, Erickson went
on, that the employees claimed that the previous warehouse manager had given
them whiskey to drink in the warehouse after work and this was why they had
trouble on the drinking part of the test.44 Under these circumstances, it was
decided, Stoneking and Erickson asserted, to forget the drinking reports but Er-
ickson testified that he talked to at least Hardy and Cruise-the latter at the time he
42 Although I have found that no written reports were submitted in 1962, there is dis-
turbing evidence in the record to the contrary Caroline Morris, who was the receptionist-
typist for Truth Verification in January 1963, testified that she believed that Lone Star
had always received written reports, adding, "I know the year before [1962] we had given
them a written report." She went on to explain that "we had carbons in our files" and
that they were kept in a separate Lone Star folder. Although Morris admitted that she
could be mistaken and that what she had seen were the 1959 and 1960 reports, she clearly
did not think she was mistaken Morris was obviously a friendly witness for Respondent,
who called her and just as obviously did not realize how damaging her testimony concern-
ing written reports in 1962 could be to Respondent's case McBride testified that all in-
formation concerning tests conducted prior to opening of the Houston office in the fall of
1961 would be in ,the Dallas files.
43 Following a test the operator usually makes notes on the testee's test jacket concern-
ing his conclusions and the 1962 jackets were admitted into evidence over Respondent's
vigorous objections. The operator who gave the 1962 tests was not in or around Houston
at the time of the hearing McBride, the operator who gave most of the 1963 tests, testi-
fied that he had the results of the 1962 tests before him when he prepared the 1963 re-
ports. Furthermore, a number of the 1963 reports refer to adverse conclusions reached by
the operator who gave the 1962 annual tests and even some earlier tests. More im-
portantly, the 1963 conclusions in some cases were expressly based on the fact that noth-
ing had happened to the testee after he had failed previous tests. It is also reasonable
to assume that the operator told Lone Star in 1962 substantially what he noted on his
own records. A question was raised concerning this last assumption by the subsequent
stipulation that entries on three of the 1962 test jackets were made by some representa-
tive of Truth Verification after July 1963, i.e., more than a year after the tests were given
and the reports were made to Lone Star. Even in these cases, however, the only bases
for assuming that the latter notations were wholly unlike the conclusions drawn by the
operator shortly after the tests were made are: (1) the charts (polygrams)- are worth-
less ; (2) they cannot be interpreted by anyone other than the operator who gave the test
and this Is clearly not the case although it is agreed that he is best able to "read" them ;
or (3) Truth Verification deliberately and 'for some unknown reason entered conclusions
which varied materially from the ones which the operator who gave the test reached after
studying the charts Indeed, it seems likely that the notations were made by the operator
who gave the tests and who was transferred to Dallas sometime before the events here in
issue. If, as Respondent contends, Truth Verification's reports to Lone Star varied mate-
rially in a number of cases from the notations on Truth Verification's records-which
were prepared after the testees had left the premises-then Lone Star was not getting
what it paid for. Moreover, there is simply no reason why Truth Verification would with-
hold derogatory information from one of its valuable clients. Finally, I note that there
is no claim that after Lone Star received the 1963 reports which referred to adverse re-
sults in 1962, it complained to Truth Verification that the latter had not told Lone Star
about the adverse findings the previous year. See also Stoneking's posttest statement set
forth supra.
"It should be noted that Stoneking 's testimony indicates that in at least some cases the
reports referred to drinking on the job, not merely to drinking in the warehouse.
THE LONE STAR COMPANY 707
received a $15 raise-and told them that they would be terminated if they did not
pass the test in 1963.45
The Gayles' report also concerned, drinking. Gayles had been employed by the
Company for approximately 20 years and Erickson told Stoneking that he "had
suspicions that Lorenza Gayles had been nipping on the job for probably years"
and that he had been warned about it. Stoneking testified that he talked the
matter over with Gayles, pointing out that he could ill afford to do something
which might cost him his job. According to Stoneking, he also told Gayles that
he would be discharged if he was reported in 1963 that he was "still drinking on
the job." Stoneking also explained at the hearing that Gayles does not drive
a truck but works in the warehouse full time and if he drank enough to make him
a "risk," it would be obvious. From this latter comment, I suspect that Gayles has
not entirely discontinued his habit of "nipping on the job."
The report on Graves raised serious questions with respect to his honesty. Some
time before, Graves had been involved with another employee in stealing a case of
whiskey and had been retained with the "understanding" that he would act as an
"informer." I credit Respondent's testimony that it was for this reason that Truth
Verification's adverse report on Graves was disregarded and draw no adverse infer-
ence from the fact that he was not discharged.
Truth Verification reported that it could not "clear" Robert Box, a checker, on
anything due to the fact that he would not sit still and it was impossible to really
test him. Erickson reported to Stoneking that he was, going to discharge Box
and explained that he did not "feel" that Box would ever make a "satisfactory"
employee, that he was lacking in ability and efficiency. Box was terminated on
January 19, the reason stated on his personnel change of status form being, "in-
competent," and "tried hard, but did not have ability to learn and perform assigned
duties." No reference was made to the polygraph report.
Eddie Hall was reported to be unable to "pass stealing, drinking, or anything."
Hall was discharged on January 19 and his personnel change, of status form
indicates that the reasons were that he was "untrustworthy," and "slow worker," and
"unable to clear polygraph."
Mitchell was reported as "not passing" on such subjects as "drinking in the
warehouse," "money," and "stealing." Erickson testified that Michell was a
"good" employee and that he talked to Mitchell who could not understand why he
did not pass the test. Erickson said that it was decided to have Mitchell retested
for the 4- or 5-month period since he had been reemployed, and on the retest he
"clear[ed] up ... fine." 46
Stoneking gave a different version of the Mitchell case. He said that Erickson
reported that Mitchell was a "real workhorse" and "of course" at that time Mitchell
was an "extra," adding that he did not think Mitchell was on the regular pay-
roll. There was not "much discussion," Stoneking went on, "because [Mitchell] was
not ... on the payroll."
Erickson testified that Truth Verification reported that Roosevelt Jammer had a
"drinking problem," "couldn't pass bottlenecks," and there was "some indication of
stealing." "At the time," Erickson went on, "Jammer had already told me, and I
think I had filled out an application from the Post Office, that he was going to
work for the Post Office.47 So, it was just a matter of a week or ten days until he
was going to leave anyway, so I don't believe I talked to him about it. I just took
it for granted that he was going to leave and I didn't want to get the boy in
trouble because he had worked hard during the two or three months I knew
him." Erickson added that Jammer left a "short period" later. Jammer took the
polygraph test on January 10, 1962. Lone Star's personnel change of status form
indicates that Jammer "resigned" on May 11, 1962, for employment with the Post
Office Department and contains no reference to an adverse polygraph report.
45 I think that Erickson probably mentioned drinking to Hardy and Cruise but I am sure
he did not stress it particularly. He admittedly did not recall talking to Mosie about his
similar problem and according to his own testimony did not discuss the problem with
Cruise until April or May when he gave Cruise a $15 raise. Although Respondent argues
in its brief that Cruise was given the raise because he had been promised it by the previous
manager, no witness so testified. Moreover, failure to pass the test could certainly be cited
by the Company if Cruise inquired why the raise had not been granted.
46 Mitchell had worked for the Company for 18 months in 1959-60.
47 On cross-examination , Erickson stated that Jammer "gave us notice, if I remember, a
long time before he left,' maybe back in December this thing came up. It might have been
longer than that."
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The above facts, based entirely on the testimony of Respondent's witnesses and its
own records, disclose that its concern over "security" in January 1962 was not
nearly as great as it allegedly was in January 1963. Although two employees
were discharged (Box and Hall), it is clear that Respondent was unhappy with
Checker Box generally and that it had some grounds for complaint against Hall
other than the polygraph report.
As noted supra, Respondent's versions of the Mitchell case vary considerably
with Stoneking explaining the lack of action on the ground that Mitchell was not
on the regular payroll (which he clearly was) and Erickson on the ground that
Mitchell cleared everything "fine" on the retest. It is significant, however, that
Mitchell was not retested for nearly 2 months although it had been reported that
he could not pass drinking in the warehouse, money, or stealing.48
The Jammer case is even more difficult to reconcile with the Company's alleged
policy of automatically discharging anyone who did not "pass" the test and its
prompt discharge of 10 employees in 1963, including one who, it was reported,
could be "completely innocent" of any wrongdoing. According to Erickson, it
was reported that Jammer had a "drinking problem," "couldn't pass bottlenecks,"
and also gave "some indication of stealing." Jammer had taken a civil service
examination in February 1961, and I think it was probably known around the
warehouse that he was trying to get a job at the post office. I do not believe,
however, that he gave the Company "notice" in December 1962 or even earlier, as
claimed by Erickson. I think the probabilities are that he gave notice about 2
weeks before beginning work at the post office which was on May 14, 1963.49 I
will assume, arguendo, that there is no inconsistency between Respondent's claim
that it was willing to allow Jammer to continue working a week or 10 days
notwithstanding the adverse report with respect to drinking, necks, and stealing
and its actions in January 1963. But I find its willingness to permit him to stay
4 months-even assuming that it expected him to leave eventually-wholly irrecon
cilable with its -prompt and allegedly "automatic" discharge of 10 employees in
January 1963, on the basis of far less specific reports.50
It is also apparent that Respondent failed to take action with respect to the
drinking reports even though at least some of them referred to drinking on the
job. Its failure to do so is also difficult to reconcile with its alleged policy of
discharging immediately any employee who failed the "drinking and stealing"
part of the test.51 Moreover, it is significant that in 1962 Stoneking and/or Erick-
son gave the employees an opportunity to tell their side of the story and exercised
independent judgment in deciding whether to act or not to act upon the adverse
reports by Truth Verification.52
As Mitchell was given his annual test on January 18, 1962, and was given another test on
March 12, 1962.
49 In view of the Company's payroll records, I place little reliance on Jammer's testimony
concerning his taking a day off about May 1 or his conversation with Erickson shortly
thereafter. In this connection, I note that Respondent produced records, including the
manifests, when they supported its positions. Its failure to produce them in connection
with Its claim of "necks" is, therefore, particularly significant.
co Respondent attempts in its brief to minimize the significance of its lack of action in
1962 on the ground that both Stoneking and Erickson had been at the branch only a few
months and did not know the characteristics of the employees But Respondent's basic
contention is that it discharged the 10 employees in 1963 in accord with a long-established
practice of automatically discharging any employee who failed his polygraph test, at least
in the areas of stealing and drinking on the job. Both Erickson and Stoneking had been
employed by Lone Star in responsible positions for years and assertedly were familiar with
the alleged policy. Under these circumstances, I do not see what relevancy their lack of
knowledge concerning the employees' cleanliness, competence, cheerfulness, grooming, etc.,
has to the issue to be decided..
sz Respondent did not ask Truth Verification to determine whether the employees had
taken a drink on the job or'merely in the warehouse after working hours. If polygraphing
has any validity, only two questions would have had to be asked: (1) "Have you ever
taken a drink on the job?" and (2) "Have you ever taken a drink in the warehouse after
work with the manager's permission?" Stoneking 'admitted that he would consider a man
who drank on the job a security risk but asserted that he had no way to determine whether
the men had been drinking on or off the job.
52 As the comments set forth above indicate, I have relied only upon the testimony of
Erickson and Stoneking concerning what was reported to them in, 1962 and what they did
thereafter. Although I have indicated that I think the probabilities are that adverse re-
ports were received concerning other employees , my conclusions are not based upon the
Company's failure to act in those cases.
THE LONE STAR COMPANY 709
Much evidence was received concerning whether, after the 1962 tests, Stoneking
and Erickson talked to the employees as a group and mentioned polygraph tests.
Having considered all of the evidence, I conclude that, as asserted by Respond-
ent's witnesses, such a meeting occurred and that polygraph tests were mentioned.
However, I ao not believe that it was emphasized that employees who failed
the annual tests in 1963 would be discharged. For example, the only employee
witness called by Respondent on this issue, Lorenza Gayles, testified merely that
Erickson said that "they were going to make a usual thing out of [the tests], said
we would have to take one around the first ... of each year." Similarly, Supervi-
sor Ruemke, a witness for Respondent, recalled only that Stoneking said the em-
ployees would have to take a test every year and that drinking on the job would
not be tolerated.53
d. Respondent's day-to-day security precautions and its losses in 1962
and January 1963
As indicated supra, it is difficult and often impossible for the Company to
determine whether a driver is keeping overages on his truck, or whether a driver
who reports a shortage is actually short, or whether a bottleneck turned in and a
replacement obtained represents an accident or is a maneuver to obtain a free bottle
of liquor. It is equally clear, however, that the Company has a number of methods
for checking on employees. Inventory is taken at least twice a month. Truck
loadings are carefully checked (in some cases both by a checker and a number
taker) and each driver indicates on each day's manifests any shortage or breakage
for which he claims credit. The notation is initialed or signed by Supervisor Max-
field and the manifests are retained for an indefinite period. Breakage is also
recorded on a "breakage sheet" with the driver's name "off on the side." Notations
are also made concerning shortages reported by the drivers. Prior to January 1962,
broken bottles were kept in a locked barrel but after that date they were com-
pletely demolished.
The manifests, breakage sheets, and shortage notations provide ready records by
which Lone Star can determine whether a driver is reporting an abnormal number
of shortages or is turning in an abnormal number of necks.54 If the Company
believed the bottleneck problem to be as serious as it sought to have me believe,55
I am sure that it would have kept a running tabulation of the necks turned in
and by whom which it admittedly did not. As Vice President Dillon admitted, it
would be suspicious if a driver turned in an "unusual" number of necks. Over-
ages, i.e., the loading of too much merchandise, are perhaps less easily detected
except that loading is carefully checked and I assume that a record is kept of the
merchandise loaded on each truck and the record can be and is cross-checked
against deliveries actually made. Money collected from customers (COD) can be
checked against orders and/or deliveries. In addition, of course, Manager Erick-
son spends most of his time in the warehouse as do Supervisors Maxfield, Ruemke,
and Walker and checker-receiving clerk Manners. The latter has reported at least
one theft and another employee, Calvin Graves, serves as an "informer."
In short, although it is impossible for the Company to be 100 percent certain
that no employee has done anything dishonest, it has means by which it can
probably detect other than occasional thefts of relatively small amounts. As
Stoneking expressed it, "Most [shortages, bottlenecks, and the like] come to light
pretty quickly," although in some instances they do not.56 And even in cases in
"It is understandable that the employees would not recall, nearly 2 years later, that
they were told about the annual tests at a brief meeting in the warehouse. As Supervisor
Ruemke explained, he had understood prior to the meeting that annual tests would be
given although it was only through "hearsay." All of those present had presumably
"passed" the 1962 tests and the fact that they would have to take tests the following
January would be of little concern at the moment.
cs The use of the term "abnormal" here and elsewhere is not meant to imply that the
Company regards any shortage or breakage as "normal" except in the sense that it recog-
nizes that mistakes and accidents do happen
se See, for example, Erickson's testimony that it was "possible" that $2,000 or $3,000
of the branch's 1962 $5,900 breakage was due to manipulation of bottlenecks, although he
conceded that he did not think it was as,much as that.
sa Manners, who had worked for Respondent for approximately 4 years„ expressed the
opinion that if a case of any particular brand of liquor was missing, the Company
"could come pretty close to tracing it down." Manners also asserted that if necks were
turned in "regularly or every time you turn around [you] have a breakage on [your]
truck," the employee would be questioned about it.
710, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which it cannot be sure that an employee is stealing , the Company probably has
an "informed suspicion" that something dishonest is going on and who is in-
volved. That this - is true is - demonstrated by the fact that employees are frequently
required to take polygraph tests in connection with specific losses.
Notwithstanding the constant checking and cross -checking described above, the
Company stipulated at the hearing that it did not have any evidence of specific acts
of dishonesty or misconduct by any of the discharged employees during 1962 or
January 1963 . Indeed, there is no evidence that it had any reason to suspect any
employee of dishonesty . The semimonthly inventory which was taken in early
January disclosed nothing suspicious . Although the employees ' manifests , break-
age sheets , and shortage reports were in the Company's possession , it did not
claim that any of the discharges had been turning in an "abnormal " number of
bottlenecks or had claimed an "abnormal" number of shortages . Indeed, it did
not claim that any of them had ever turned in a single bottleneck ( except Man-
ners ) or had reported a single shortage . 57 The absence of evidence that any other
dischargee had turned in a bottleneck in the year preceding his discharge is par-
ticularly significant since the Company stressed this as being a method it suspected
of being used , perhaps extensively , to obtain free liquor. It also implied that it
at least suspected that some of the 1962 breakage resulted from manipulation of
bottlenecks . Thus, as previously noted, Manager Erickson testified , on warehouse
breakage in 1962. "We had fifty -eight or fifty-nine hundred dollars . it could
be two , or three thousand dollars involved there [in bottlenecks ]. I don't think
it's that much but it 's possible."
Although there were some "discrepancies" in the past 3 months' inventory, the
Company admitted that they could all have been due to mistakes and accidents and
did not claim that it had any reason to suspect otherwise. Since the branch had
an "overage " of $5,994.95 , i e., slightly higher than its "shortage" of $5,233.07, it
seems probable that at least some if not most of the "shortages " were due to errors
in tabulating.58 When it is recalled that the branch's annual sales exceed $ 5,000,000
and that its merchandise is packaged in glass, the branch 's breakage of $5,846.10 in
1962 does not seem excessively high . 59 Because of the high price of liquor, even a
few thefts would cost the Company a sizable amount . By the same token, how-
ever, a few accidents would mount up dollarwise
In short , the branch 's 1962 and January 1963 records provide no basis for
supposing that employee dishonesty , if it existed at all, was the rule rather than the
exception or that any employee was stealing from the Company regularly or in
substantial amounts. This was in fact conceded by Warehouse Manager Erickson
when he told employee Gibson at 8:30 a.m . on January 15 (before receipt of the.
Union 's letter ) to go for his polygraph test, that there was "nothing wrong, that
it was just time to take them" again.60
Clearly, Respondent had the right to and should make every effort to eliminate
all stealing , including the theft of only one bottle. But the record contains na
evidence that Respondent had any objective reason to believe , when it sent the
employees for their 1963 tests , that any of them had stolen anything . The most
Respondent could claim was that employees had been dishonest in the past, that
temptation was ever present, and that some of the branch 's breakage and shortages
could have been due to dishonesty.
e. The 1963 tests
Warehouse Manager Erickson called Truth Verification on January 10 or 11, i.e.r
before the Company had knowledge of the union activity , to say that Lone Star
wanted periodic checks run . Caroline Morris, Truth Verification 's receptionist
and typist , asked if there was any • "specific problem " and Erickson said , "No, that
this was just the usual routine check ... pertaining to theft and stealing."
67 The one possible exception is a shortage reported by Cruise in December 1962. How-
ever, the matter was apparently cleared up. satisfactorily for Cruise was not required to.
take a specific loss test. A month earlier, Cruise had reported a substantial "overage."
58 Thus, the company records might show receipt of 100 cases of brand A when brand H
was in fact received. As a result, the inventory would show a shortage of brand A and
an overage of brand B. If the brand actually received was more expensive than the one
recorded as received, the overage would be greater than the shortage dollarwise
sB Dillon testified that this figure included some breakage by known individuals , i e., the
Company knew that " in carrying a case to the loading area a warehouseman dropped it
He did not state what percentage of the breakage was due to unknown causes.
eo If will be recalled ' in this connection that company witnesses stressed the deterrent
effect of the tests.
THE LONE STAR COMPANY 711
The general areas to be covered in testing for Lone Star had been listed in a
bulletin issued by Truth Verification's president on August 21, 1962, and included
questions on 10 subjects such as stealing and drinking on the job. No reference is
made to the furnishing of written reports or to a finding as to whether a testee was
a "security risk."
Probably on Monday, January 14, Manager Erickson talked to James McBride,
the operator who gave most of the 1963 tests, and gave McBride a "brief run-
down" on the specific areas to be covered because these were the first annual tests
McBride had given for Lone Star in Houston. Sometime thereafter, McBride
prepared an "Information Sheet" with respect to the tests which states that the same
basic questions were to be asked as in the past and that telephonic reports would be
given to be followed by a brief, written report. No reference was made to a
"security risk" finding.61
The first tests were given on the morning of Tuesday, January 15. As stated
supra, about 8.30 that morning Erickson told Gibson to go for his' test, saying
that nothing was wrong, that it was "just" time to take the tests again. It was
a few hours later that Lone Star received the Union's letter. Several employees
were tested on Wednesday, Thursday, and Friday and oral reports were given
Erickson or Stoneking during this period.
Probably on January 18, Company Attorney Saccomanno talked to McBride on
the telephone and requested that the reports be in writing, "indicating that some
people might be terminated." 62 During the same conversation, Saccomanno told
McBride he wanted Truth Verification to include a-statement as to whether it
considered a testee a security risk.63 -
"I do not credit Erickson's testimony that he asked Truth Verification to ask the -em-
ployees about four specific brands because there had been a "lot of unexplained shortages"
of these brands McBride could not recall any such request and did not note any such re-
quest on his "Information Sheet " Lists of the questions asked some of the employees
are in evidence and they do not include any questions about brands. Moreover, Respond-
ent did not introduce any objective evidence that there had been "a lot of shortages" or-
any amount of shortages in these brands In addition, Supervisor Ruemke, who assists in
the taking of inventory, admitted that he could not recall that any merchandise was "lost"
or "stolen" in 1962 although he added that there "could have been occasions." .
Although McBride testified at one point that he prepared the "Information Sheet" re-
ferred to above on January 14, he testified repeatedly that the request for written reports
was not made until after a number of tests had been given and oral reports had been
telephoned to Stoneking or Erickson. Indeed, Respondents own witnesses do not assert-
that they requested reports until at least January 15.
'McBride was asked the following questions on cross-examination and gave the follow-
ing answers,
Q (By Mr LADWIG ) I am asking you whether or not Mr Saccomanno instructed
you to make your own interpretation of which of these employees were'security risks
and which were not? I
A. He wanted us to find them clear or not clear.
Q Did he want you to report back whether they were or were not security risks?'
A. He wanted us to use the term "security risk" in our report
Q. Now was it your understanding from that conversation that he was leaving it
up to you to decide in each particular case whether or not a particular subject was
or was not a security risk 9
A. Again, he was leaving it up to use to determine if the man-in other words, if
a man is drinking on the job he might be a risk to the security of that company.
So, if the man didn't clear his test, I put him down that he has failed to clear the-
test on drinking, therefore, he is a risk in my opinion at that company.
Q. All right . . . . So, he did not change in any way-the instructions or request
made by Mr Erickson about these various matters that they wanted covered, all he
added was that he wanted the reports in writing and for you to indicate if they were
a security risk or not.
A. We did not discuss-the tests were three-fourths concluded at the time we had
our conversation. . There was no mention of any other area to cover for him, no, sir.,
• r « • s s •
Q. ('By Mr. LADWIG ) Mr. McBride, was It your understanding of the request or
instructions from Lone Star Company in January of 1963 that you were expected to,
find a subject to be a security risk if you found him dishonest because he,was lying
about any of the relevant questions on the polygraph tests?
A. The request from Lone Star to determine this firm yes or no after a major por-
tion of the tests had been completed. We were asked by Lone Star to cover these
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 18, according to Stoneking, he, Manager Erickson, and Attorney
Saccomanno discussed the employees listed in the Union's letter.
On January 22, McBride took all but three or four of the written reports to
Attorney Saccomanno's office and the following day Saccomanno picked up the
others in his car in front of the building in which Truth Verification has its
office. McBride testified as follows concerning what occurred when he took the
reports to Attorney Saccomanno.
Saccomanno looked through the reports, thanked McBride, and told him:
Some of these boys are going to be fired or the boys that didn't pass the
test are going to be fired. We have received notification or something to that
effect from a labor organization, and I have a piece of paper in my hand
. on this piece of paper there are some names of some men. I am not
going to show you this piece of paper, but you will probably hear something
about it in the future.
He never showed me the piece of paper. I thought, what goes on?
I left and the next day he came by and picked up the reports and that was
the last I heard of Lone Star Company until you [General Counsel Representa-
tive Arter] came to my office in March.e4
The reports submitted to Lone Star were drafted by McBride and were typed by
Caroline Morris who was Truth Verification's receptionist-typist at the time.e5
When the reports were received, Stoneking, Erickson, and Saccomanno went
over them and set aside one group to be retained and another to be dis-
charged. The determining factor clearly was whether or not the report stated that
the employee was a security risk.
areas and make our reports as we always do as to whether or not the man had, in
our professional opinion, been involved, and so forth, in these areas
At a later date in the testing, we were requested to make this firm, hard, clear or
not clear. Initally, we were to [do] the job we do every year for Lone Star Company.
McBride was not certain whether this instruction came before or after he had drafted
most of his written reports.
e4 The above finding is based on the testimony of McBride which I credit. This is simply
not the type of incident about which a witness is mistaken. It either happened or it did
not. Although Lone Star and Truth Verification were not "cooperating" at the time of
the hearing, Lone Star is one of Truth Verification's good customers, not only in Houston
but in Dallas, and I do not believe that McBride fabricated the incident to embarrass
Lone Star. His testimony generally was not hostile to Lone Star and much of it was
favorable to the Company. Company counsel sought to suggest that the conversation oc-
curred after the charge was filed and the piece of paper Saccomanno had was the charge.
But everyone agrees that all of the reports were delivered and the employees discharged
before the first charge was filed. Moreover, according to McBride, the thing that "stuck
in" his mind was that Saccomanno "wouldn't show me something," an act which would
make no sense once the charge was filed. Furthermore Saccomanno referred to the fact
that some of the men "are" going to be fired. Finally, I do not believe that Caroline
Morris delivered all of the reports to Saccomanno in front of the building. I do not
doubt that she believed that she had done so but I am convinced that she was mistaken
and that what she gave Saccomanno were the few reports not delivered by McBride and
which he said Saccomanno "picked up" the "next day" in his car. The testimony is cor-
roborated in part by Morris' belief that the Union was mentioned in Truth Verification's
office before she delivered the reports to Saccomanno.. It is also possible that the reports
Morris gave Saccomanno were the "retest" reports and that McBride was mistaken in
thinking that they were delivered to Saccomanno the "next day." I specifically reject the
suggestion in the Union's brief that McBride delivered all of the reports to Saccomanno
on January 22 and, after talking to Saccomanno, rewrote them. According to the Union,
it was the rewritten reports which Morris delivered to Saccomanno.
e5 Morris testified that she ordinarily typed the report "exactly word for word with the
exception of an 'and' or 'or' " from the operator's opinion on the back of the data sheet
kept by Truth Verification. In her words, "as far as the Examiner's opinion, I always
used what was on the back" of the test jacket. She testified that McBride "changed his
opinion" in several cases and she retyped the reports. She could not recall how many
were rewritten but said she knew "there were quite a number." As set forth infra, there
are material differences in some cases between the operator's opinion on Truth Verifica-
tion's records concerning the 1963 tests and the report submitted to Lone Star.
THE LONE STAR COMPANY 713
e f. Some comparisons between the Company's policy with respect
to the tests in 1962 and 1963
As found previously, the Company had made arrangements-generally-for the
1963 tests before the Company learned of the union activity among the employees.66
It is clear, however, that the Company's conduct with respect to the tests and
its reliance upon them in 1963 differed in a number of respects from its action in
connection with prior tests generally and the 1962 tests in particular.
In the first place, written reports were requested. If this were the only difference,
I would attach comparatively little significance to it for it is understandable that
because of the union activity the Company would want written reports so that there
could be no dispute concerning the findings made by Truth Verification. But this
is not the only departure from past practice. Another, and much more important,
was the request-which was likewise made after most of the tests had been given
and oral reports made and the Union's letter received-that Truth Verification state
whether it regarded a testee as a security risk.67
This brings us to the Company's contention that it delegated to Truth Verifica-
tion the authority to determine who is and who is not a security risk at Lone Star
and automatically accepts the polygraph company's conclusion and discharges the
employees without any investigation and without giving them an opportunity to
defend themselves.
As noted supra, McBride had never conducted annual tests for Lone Star in
Houston and it is not clear that he had ever done so in Dallas 68 All McBride
knew was that Lone Star wanted the employees tested in certain "areas." It is
clear, however, that he had never been told what offenses would and what would
not be considered serious enough by Lone Star to make an employee a security
risk.69 Vice President Dillon, whose office is in Dallas, is directly concerned with
security matters because he handles practically all insurance claims. It is his testi-
mony which primarily supports the Company's claim that its decision to use lie-
detector tests was made in good faith. Yet, when Dillon was asked if he knew
what standards Truth Verification uses in determining whether a Lone Star em-
ployee is a security risk, he answered, "No, I do not." 70
66 Respondent asserts that the employees began a union campaign in 1959 In an effort to
avoid discharge as the result of substantial shortages discovered at or about that time.
It suggests that the union activity in 1963 was for the same purpose, pointing out that
the employees knew it was about time for the annual tests I am not convinced that the
1959 union activity was a protective measure and am inclined to think that it was not
But assuming arguendo that it was, it does not follow that the 1963 activity was simi-
larly motivated. In the absence of any evidence of any suspicious losses in 1962-63, the
employees had no reason to anticipate any discharges and certainly not a mass discharge
as had occurred in 1959. Only two nien had been discharged following the 1962 tests
and Box's lack of ability and Hall's slowness were undoubtedly known to the other em-
ployees. Furthermore, there is no evidence that the employees knew that either was dis-
charged even in part for failing the test. -
67 No such request was made in 1962 Annual tests were not given in 1961. Accord-
ing to Attorney Saccomanno, written reports were submitted and "security risk" determina-
tions were made following the tests In 1959 and 1960. The 1959 and 1960 reports are not
in evidence although the record indicates that they are still in existence.
6611is testimony suggests that he may have given some preemployment or specific loss
tests for Lone Star both in Dallas and in Houston
69 Warehouse Manager Erickson was asked on cross-examination whether any instruc-
tions were given Truth Verification concerning how serious infractions would have to be
to warrant the conclusion that the employee failed his test He replied, "As far as I
know, it wasn't. I know that I didn't give them . . instructions myself."
70Dillon was also asked the following questions on cross-examination and gave the
following answers:
Q. What is a security risk'
A. A security risk would be an employee who has either committed a dishonest act
or stolen, and having done so, it is likely, in my opinion, and this is only opinion, that
this individual would do so again.
• M • t * t w
Q. And who determines whether he committed a dishonest act?
A. In our case, Truth Verification.
[Footnote continued on next page.]
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is also clear from the testimony of Assistant Branch Manager $toneking and
Polygraph Operator McBride that neither knew how the other regarded certain
offenses. It is similarly clear that McBride took into consideration, at the very
least, conduct which Stoneking did not feel indicated that an employee was a
security risk. Thus, McBride was asked the following question by union counsel
and gave the following answer:
Q. . . Was it your understanding of the instructions or request of The
Lone Star Company that if you found that an [employee] was lying about
having knowledge of others stealing, that that would be a basis for finding
the [employee] to be a security risk?
A. If the test indicated in my professional opinion guilty knowledge or
conspiracy to do something against Lone Star, guilty knowledge and with-
holding this knowledge which, if told to the employer would help the employ-
er protect his business, the man is aiding and abetting a deterrent to Lone
Star's security.71
When Stoneking was asked the following question on cross-examination, he
gave the following answer:
Q. . . . so far as you were concerned, could an employee be found a security
risk if the only thing . . . found on the polygraph [test] was that he was
lying about having no knowledge of other people stealing?
A. Well, as far as I personally am concerned, I don't know what the poly-
graph company would think about a man simply lying, but I would assume
that they would not consider a man [to be] a security risk for lying and noth-
ing else . [Emphasis supplied.]
TRIAL EXAMINER: You mean lying about this?
The WITNESS : Lying about knowledge of someone else stealing, that's
right.72
In addition, Stoneking was asked if company policy required the discharge of
an employee who stole one bottle of wine. He replied that he did not think so. I
-it were a case of Cutty Sark, on the other hand, Stoneking said that it would be
"justification" for discharge, "if it were an outright theft, and there were no other
circumstances surrounding it." When asked about cheating the Company on -one
bottleneck, Stoneking answered , "Well, I think on a bottleneck, if that were the only
bottleneck, that the matter might come up for some discussion" and that was
"most likely" all that would happen.73 As for an employee calling in sick when he
was not, Stoneking said that this was a matter of "information" only and "would
have no bearing on whether we did or did not discharge" the employee.
It is clear from McBride's testimony that he was not aware of these company
"policies" and that manipulating a neck and calling in sick would create questions,
at the very least , in his - mind about an employee's security rating.74 It is also
significant that in none of the reports did Truth Verification indicate how much or
how many times the employee had stolen or how many necks he had manipulated
or even when the thefts had occurred.76
Q. Who determines whether he is in those surroundings . . . that he might do a
dishonest act?
A. Now we are getting into an area such as Dr. Sheer [the expert witness on
polygraphing called by the Union] was In, and so on, I am unable to answer that.
Q. So Truth Verification determines where [an employee] would be in a condition
where he might perform a dishonest act?
A. I would assume that this is so, and it is an assumption only
71 When McBride was pressed for a definite answer as to whether failure to report actual
knowledge that another employee was stealing a bottle of liquor would, in his opinion, make
a man a security risk, he answered that it would.
72At another point Stoneking was questioned about failure to report that other em-
ployees were drinking or stealing and he replied, "I don't know. I don't believe [Truth
Verification] would consider a man a security risk simply for knowing something, I don't
believe they would." [Emphasis supplied.]
73 As noted previously , Respondent did not discharge but promoted Manners after learn-
ing that he had manipulated a neck.
74 McBride testified that he did not know whether or not "playing sick" makes an em-
ployee a security risk.
76 The question sheets in evidence show that the questions were not limited to the period
since the last test. It will be recalled that some of the employees had worked for Lone
Star for 3 to 4 years.
THE LONE STAR COMPANY 715
I might well believe that Lone Star would accept "as proven" Truth Verification
Teports with respect to "facts" such as "X has stolen one bottle of gin" and "Y
has stolen a case of Cutty Sark." However, -I do not believe that probably
the largest wholesale liquor distributor in Texas would leave it up to the compara-
tively unguided judgment of an unknown polygraph operator to determine what
offenses make a Lone Star employee a security risk.76 I find it even more difficult
to believe that Lone Star had a firm policy of discharging automatically any
employee so labeled by Truth Verification, at least in the absence of any evidence
that anything had in fact been stolen. This, however, is what Respondent's wit-
nesses repeatedly stated Lone Star's policy to be.
For example, Stoneking was asked if his testimony was that Lone Star's policy
was to discharge an employee if Truth Verification concluded that he was a secu-
rity risk "for whatever reasons Truth Verification relied upon," and he answered,
"Yes." At another point, Stoneking was asked if Truth Verification was to deter-
mine who was a security risk and that was the end of it or would that Company
merely make a recommendation and Lone Star would determine what to do about
it. His answer was, "Well, my understanding of the policy was that [Truth
Verification] were to make the recommendations and that I or we were to follow
their recommendations."
Despite repeated statements of the type set forth above, it is clear that this was
not the policy followed by Lone Star in 1962. As the fact set forth supra disclose,
the adverse reports admittedly received on a number of employees did not cause
them to be discharged. Instead, in some cases, Respondent talked to the em-
ployees and, upon hearing their explanation, retained them. Indeed, Stoneking
admitted that "in several instances" in 1962 he "personally passed upon who or who
would not be fired." In 1963, however, he said, "The determination was already
made when we received the test." Stoneking agreed that "in a manner of speak-
ing," this constituted a change between 1962 and 1963.77
Occasionally, however, Stoneking indicated that he was allowed some latitude.
Once was when he was being questioned about why he did not follow Truth
Verification's first recommendation with respect to Suber (we feel that with a stern
warning and proper supervision, he can he retained) but instead sent Suber for
another test. He explained that the reason was that there was some doubt "in the
test itself," that there was "a suspicion of theft and it doesn't say what," 78 and also
because the report indicated that "maybe Mr. McBride is not familiar with all of
the things about our business," i.e., that constant supervision of drivers is impossi-
ble. Because of the conflicts in Stoneking's testimony with regard to whether the
policy was to accept Truth Verification's recommendation automatically or whether
Lone Star "weighed" the reports, I asked Stoneking whether he had some latitude to
decide whether to retain or discharge an employee on the basis of "how much" he
had stolen. Stoneking replied:
Well, I would think it would be more on the basis of the report that was
given to us. If the operator is concrete in his opinions, then I think it could
be automatic. But if the operator is inconclusive to a large degree, I think I
stated before that I felt that we have always had the right to question one if
we so desired. And to at least discuss it further. [Emphasis supplied.]
At still another point, Stoneking testified:
Well, outside of some circumstance that would be out of the ordinary, as
far as I understand our policy, that whatever the examiner's opinion or recom-
mendations . . . that we were to follow. Now that does not mean that we
could not question his opinion, if we wanted to, but that would be done by
going back to the examiner, himself, or going to someone with more author-
ity in my company.
78It is clear from the record that the Company knew only McBride's name and that he
was employed by Truth Verification. it is equally clear that McBride knew only that
Lone Star was a wholesale liquor distributor and the "areas" to be covered by the tests.
77 Stoneking sought to explain the change on the grounds that the 1962 reports referred
only to-drinking and that it had been decided to overlook them because the employees in-
sisted that they failed in this respect because the previous manager had given them liquor
to drink in the warehouse . He also added that they had been warned that they must pass
the tests "in the future." This explanation, however, has no applicability to the Mitchell
and Jammer cases. See also Stoneking 's 1962 post -test statement , supra.
78 As noted elsewhere , most of the others did not say "what" either.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We were not deprived of any right to disagree with his opinions or find-
ings, but at the same time generally our instructions were to follow the
recommendations of the examiner. [Emphasis supplied.]
g. Some comments on the 1963 reports
In the usual case in -which it is alleged that an employer has discharged em-
ployees for union activity,°the reason or reasons asserted by the employer for his
action are events or incidents which can be and are described by the witnesses, often
in great detail. Having heard the testimony and examined any relevant docu-
mentary evidence, the trier of fact decides whether the events actually occurred and,
if so, whether they were really serious, fairly serious, or not serious at all. In the
instant case, for example, the Company's records, inter alia, convinced me that it
had not changed its policy with respect to the assignment of helpers on runs.
In another case , the Company's records may contradict its claims. In other words,
the parties normally adduce evidence concerning the events in issue which can be
evaluated by the trier of fact. -
But in the instant case, neither I nor the Board nor the courts can really deter-
mine whether the explanation given by the Company stands up under scrutiny.79
Instead, at each stage of the proceeding, the deciding body is asked to conclude,
solely on the basis of assertions by Respondent's witnesses, that it acted in good
faith when it accepted, without question, Truth Verification's conclusions and
promptly discharged the employees without any prior objective basis for suspect-
ing them and without any subsequent investigation. Indeed, one of the corner-
stones of Respondent's case is that Lone Star officials were unable to evaluate either
the "scientific" procedures used by Truth Verification or the accuracy or reliability
of the latter's conclusions and therefore accepted and acted on the reports automati-
cally.80 If an employer can delegate to another company the function of making
broad conclusionary findings concerning the honesty of the employer's employees
on the basis of machine tests which only the operator can evaluate and can then
establish his good faith by asserting that he accepted the conclusions without
question because he could not evaluate them for himself, the employer's good faith
becomes virtually automatic.
But even in this case there are grounds for questioning the Company' s assertion
that it acted in good faith in accepting automatically and unquestioningly Truth
Verification's conclusions. In his exceptionally good brief, counsel for the Union
asserts that the Company had reason to question the reliability and/or the signifi-
cance of at least some of the reports. I agree.
One example is the report on Cleo Gibson. Gibson had worked for Lone Star
for 4 years and there is not a scintilla of evidence (other than Truth Verification's
report) that he had ever stolen anything. His testimony that he had never turned
in a neck is undenied although the Company keeps records which would have
enabled it to refute his testimony if it had not been true. Notwithstanding the
absence of any evidence that Gibson had turned in even one neck, Lone Star
assertedly accepted without question Truth Verification's statement that:
[Gibson] does not clear question (1) cheating the company on necks and
(2) calling in sick when he actually wasn't. There is a good possibility that
79 See N L.R B. v. Griggs Equipment, Inc, 307 F. 2d 275, 278 (C A. 5), and cases cited
therein which point out that an inference of "discriminatory motivation is sustained and
buttressed by the fact that the explanation" given by the employer "fail[s] to stand up
under scrutiny."
eo Respondent's witness Hatcher stressed the fact that the accuracy of the tests and the
reliability of the conclusions drawn depend almost entirely upon the knowledge and skill
of the operator of the polygraph machine And McBride, who gave most of the 1963 tests,
asserted more than once that he could explain what he had done and the conclusions be
reached only by giving a lecture on the science and techniques of polygraphing. McBride,
who was 26 years old at the time of the hearing, began working for Truth Verification in
Dallas in February 1962. He worked under close and direct day-to-day supervision of a
graduate of the Keeler Institute of Polygraph for 6 weeks and under less direct super-
vision until be was transferred to Houston in late November 1962 . He is a graduate of
Southern Methodist University where he majored in business administration and took two
or three courses in psychology. Prior to being employed by Truth Verification, McBride
worked for a television station and was associated with the production of a television show
which had 'association with the police" and as a result became acquainted with some
polygraph operators. He also worked as a salesman of calculators and typewriters. The
State of Texas has no requirements which must be met before a person can give polygraph
tests. All that is necessary is that he has access to a polygraph machine.
THE LONE STAR COMPANY 717
he might have stolen in the past and a very good possibility that he has
cheated the company on necks. Consider him a security risk.
No one who reads the record can evaluate the phrase "does not clear" question of
"cheating on necks." The Company did not ask Truth Verification at the time and
the record does not show whether this statement meant that Gibson had "manip-
ulated" two necks in 4 years or at least one a week for 4 years. Moreover, Truth
Verification did not say that Gibson had in fact manipulated even one neck in 4
years but only that he did not "clear" the question, that there was a "good possibil-
ity" that he "might" have stolen something sometime "in the past," and a "very
good possibility" that he had cheated the Company on necks, time and number
unspecified.81 As for calling in sick, as noted, supra, Assistant Branch Manager
Stoneking testified that this was not grounds for discharge. Notwithstanding the
lack of specificity in the report, Respondent assertedly discharged Gibson on the
basis of it because it ended with the sentence "Consider him a security risk." On
the other hand, Stoneking was willing to give Gibson a recommendation. Thus,
according to Stoneking, when Gibson asked if the Company would recommend
him for employment, Stoneking replied, "I told him that I thought that. I could
give him a recommendation, that it would be all right to use my name as a
reference if he didn't want to use Mr. Erickson."
Even more serious questions are raised by the report on Clarence Gailes.82
Gailes had been employed by Lone Star for more than a year and if the Company
had any reason to suspect that he had stolen anything, or manipulated even one
bottleneck, it did not say so at the hearing. Nevertheless, the report, after
setting forth a number of complaints Gailes had expressed about Lone Star, and
stating that Gailes had taken five or six previous tests, then comments that Gailes:
does not show much response to the relevant [incriminating] ques-
tions. There could be reasons for this: (1) he is completely innocent and
therefore is unconcerned; (2) he has taken the test so many times that it does
not bother him to lie . . . (3) he is the type of person who, because of his
environment, has learned or been taught that stealing is not wrong .... Con-
sider him a security risk.
Of course the most striking thing about this report is the admission that.Gailes
might be "completely innocent" of any wrongdoing. But if he was not innocent,
what had he done? The report does not say and it does not even speculate on
what Gailes "might possibly" have done.83 'There is no evidence, however, that
Lone Star inquired of Truth Verification which explanation-innocent or guilty-
seemed more probable or that it asked what Gailes had done if the "completely
innocent" explanation appeared the 'less likely of the_ two. 'Instead, Lone Star
automatically accepted the concluding sentence "Consider him a security risk."
But the most disturbing statement in the Gailes' report is that his failure to show
"much response" to incriminating (relevant) questions may indicate "guilt" for in
other reports too much response is said to indicate guilt. In short, it would seem
that employees were termed security risks equally for giving too little response or
too much response to relevant questions.
In Gailes' case, Truth Verification's records show that he expressed many
"gripes" and that he had been tested so many times that he has no concern for
the test. It also states: "On first chart there are good [adverse] responses to
questions of theft; on the second chart, best [adverse] response is to the question of
lying to Stoneking."
The report on Manners likewise raises a question: He was said
[to respond] to the questions. "Have you cheated the company, on bottle-
necks" and "Has anyone told you not to make any admissions?" Subject would
make no admissions. Feel that the problem lies in the area of .cheating the
company on bottlenecks. Cannot clear him on the above question and con-
sider him a security risk.
The Company knew that Manners had manipulated a bottleneck sometime in
1962 but promoted him thereafter and Assistant Branch Manager ' Stoneking tes-
tified that if an employee had cheated the Company on only one bottleneck "most
likely" all that would have happened would have been that the matter might have
81 According to McBride, no attempt is made to determine the amount of merchandise
involved unless the person admits having taken some definite amount.
e' Clarence Gailes is not to be confused with Lorenza Gayles.
83 It is interesting to note that the report does not refer to bottlenecks although Gailes
testified, without denial, that the operator "drilled" on them.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
come up for sonie-' discussion. Lone Star, however, did 'not ask the polygraph
company its opinion about how many necks' Manners had manipulated or when and
it is clear from McBride's testimony that he did not know that cheating on one
neck-or perhaps, even two or three over , a 4-year period-did not constitute
grounds for discharge.
. The report on Leon Mitchell begins with the statement that Mitchell did not
"clear" tests in,1961 and 1962, having responded to shorting customers, keeping
liquor, and stealing liquor from Lone Star Company. As for Mitchell's 1963 test,
Mitchell was said
not to clear the questions of cheating the company on necks, drinking on the
job and killing time on the route. Subject seemed unconcerned due possibly
to the fact that he had failed the test two times before and was still work-
ing. Consider him a risk. [Emphasis supplied.]
Mitchell, who is 42 years old, testified without denial that he had not taken a
drink of whiskey, beer, wine, or anything intoxicating in 24 years. If Mitchell
was in the habit of drinking, even occasionally, I am sure his fellow employees
would have known about it and would have been called by Respondent to contra-
dict his testimony. I also have no doubt that the presence of a "teetotaler" in the
warehouse of one of the largest liquor distributors in Texas was the subject of
comment and that Mitchell's hondrinking was known at least to Manager Erickson
and Supervisor Maxfield and probably to Assistant Branch ,Manager Stoneking.84
Erickson and Stoneking must have known, therefore, that Mitchell's asserted
failure to clear the subject of "drinking on the job" was meaningless and if the
report erred in this respect, it at least raised a question about how much reliance
could be placed on the claim that Mitchell "did not clear the question of cheating
the company on necks." There is no evidence, however, that Respondent asked for
a retest, as it did in four cases, or even asked, "How many necks?" or when the
cheating occurred. As stated previously, there is no evidence in the record that
Mitchell had in fact ever turned in a neck although his daily manifests and the
breakage sheet would have disclosed any breakage he reported and when.85
Mitchell is another of the cases in which the notation of the operator's "opinion"
on Truth Verification's records differs materially from the report submitted to Lone
Star. The "opinion" on Truth Verification's records reads:
Feel subject has taken drinks on the job since the last test. Responds more to,
theft since employed than to theft since the last test. Was N.R.'ed [not
Recommended] two times previously.86
The operator's "opinion," unlike the report, contains no reference to "cheating"
the Company on necks" or to killing time on-the route. There is no explanation,
in the record for the variation.
Sam Parrott was reported to think his salary too low and his work too heavy..
In addition, Parrott was said to be "running a fairly nervous test. He has not
cleared the question of cheating the Company on bottlenecks and to taking a drink
on the job. Would consider him a security risk." [Emphasis supplied.]
The evidence makes it clear that a person may run' a "fairly nervous" test for
a number of reasons, only one of which is a guilty conscience. Moreover, the
record does not disclose and Lone Star did not know-or ask-whether failure to,
"clear" the questions about bottlenecks and taking a drink on the job meant that
he had in fact manipulated necks and taken "a" drink on the job or only that he"
"might" have done these things. There is no evidence-except the above report-
--contradicting Parrott's denial that he had ever manipulated a neck. As for
taking "a" drink on the, job, the, Company's testimony concerning Lorenza Gayles•
indicates _ that drinking with some regularity in the warehouse had not been-
Truth Verification's, records show that Mitchell told the operator in 1962 that he did
not drink.
85According to Stoneking, when Mitchell asked about a recommendation, Stoneking-told
him that he "might possibly give" Mitchell a recommendation and that employers were
"morally obligated" to be honest" with each other in discussing job applicants.
88 As set forth supra, in 1962, Respondent was willing to retain Mitchell if he cleared
the questions for the period between his reemployment in the fall of 1961 and the,test in
March 1962. Mitchell is the employee who had worked for the Company for iS months
in 1959-60.
THE LONE STAR COMPANY 719
regarded in the past as necessarily fatal. But Respondent made no effort to deter-
mine whether Parrott's drink occurred in the warehouse or while out on his route
when it would be a more serious offense. Moreover, there is no evidence that an
employee was discharged automatically for taking "a drink" even on the route. It
would depend, I assume, on the size and nature of the drink and I doubt seriously
whether one drink on the route over a period of 2 years would cause a man to
be discharged.
The most interesting aspect of the report on Parrott is the notation on Truth
Verification's records that the operator's "opinion" was: "Cannot completely clear
this person on cheating on bottlenecks, responds to all relevant questions as he has
on previous tests. Would recommend close supervision."
There is no explanation in the record for the contradiction between the conclu-
sion McBride recorded on his own record, i.e., would recommend close supervision,
and his conclusion in the report submitted to Lone Star, i.e., would consider him a
security risk. Nor is there any reference on Truth Verification's records to "a
drink on the job." 87
Walter Mosie was reported to have responded "primarily" in the area of cheating
the Company on bottlenecks and to taking gin and/or vodka. It went on to say
that:
A test was conducted in which the different types of liquor were named and
[Mosie] responded most to the question of taking gin and/or vodka. Re-
sponses on the chart are not violent but do indicate that Subject has not cleared
the question of theft. Consider him a security risk. [Emphasis supplied.]
Not only are Mosie's responses reported as "not violent" but the operator did not
say that he had in fact stolen anything, merely, that he responded "most" which
could mean only slightly. Such a response could well indicate only that he knew
that someone else had taken gin and/or vodka and. was responding to the word
"steal." Furthermore, the operator was unable to say whether Mosie had taken
only gin or only vodka or had taken both. And he does not say how much gin
and/or vodka Mosie had taken. Perhaps it was only one bottle of one or the other
in the 4 years he had worked for Lone Star, in which case it is clear that company
policy did not require that he be discharged. However, Lone Star did not ask
Truth Verification how much "gin and/or vodka" it believed Mosie had taken or
when he had taken whatever he had taken. As for "cheating on necks," Mosie
denied having ever turned in a neck and there is no evidence in the record-other
than the above report-to the contrary.
The subject of retests also raises some questions. One of those retested was
Suber after Truth Verification reported that he
responds ... to the questions of theft from the company himself and to suspect-
ing someone of stealing from the company. On the second chart there is a
greater response to the question of "Have you actually seen anyone steal from
the Lone Star Company?" Than to the question, "Have you stolen from the
Lone Star Company?" This indicates that this person is more concerned
about what he has seen than what he has done . Feel with a stern warning
and proper supervision he can be retained . [Emphasis supplied.]
The operator's opinion as recorded on Truth Verification's records reads: "Sub-
ject responds more to suspecting someone or seeing someone steal than to actually
stealing himself. ' Runs a nervous chart; however, all of his tests have been
similar."
There is no explanation for the variation.
It is clear , as Respondent claims, that it is impossible to supervise a driver con-
stantly . This does not-mean that it is impossible to keep a closer check on, his
manifests , for example , or that a "stern warning" could not be given . It will also
be noted that the operator's opinion was that Suber was "more concerned about,
what he has seen done than what he has done," which certainly suggests that the
operator doubted that Suber himself had done anything dishonest. Nevertheless,
81 In its brief, Respondent suggests that the explanation is that the testee was able to
"clear up" the questions when the operator discussed the dubious areas with him. It is
clear,- however, that the operator does not write his comments until after the testes had
left Truth Verification's office. Moreover, the reports to the Company often are more ad-
verse than the opinion on Truth Verification's records and, in the above case, the report
refers to a subject not mentioned on the latter.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Suber was told he did not pass his test and was sent for a retest. This time it
was reported that he "cannot clear on theft from Lone Star Co. Responds to theft
of one case and to theft of a bottle. Feel that he is a security risk." 88
Although stealing one bottle of whiskey is not a trivial offense, the theft of a
case is a serious accusation. Although I know nothing about polygraphing, it
would seem to me that if it has any validity, the theft of a case of the Company's
merchandise would have been "revealed" on the first test. Moreover, the record
does not disclose that a case of anything was missing from Suber's truck or
anywhere else for that matter. In fact, Respondent's own Exhibit No. 22A discloses
that Suber had reported an "overage" of 24 half pints of Walker's Deluxe in
December.
But the most significant aspect of Suber's "retest" is the contrast between the
test and retest given Wallace Livingston, one of those who did not sign a union
card. According to the report on Livingston's first test, he had been employed by
Lone Star for approximately 3 years and-
the two major responses on this person's test were to cheating the company on
.. Subject stated that he bought a fifthnecks and to cheating a customer . .'
of whiskey from the, company and that on his way home he . . . broke the
bottle and returned the neck and got another. After these statements the only
response left unexplained on the second chart was cheating a customer.
The first question raised by this report is why Livingston was not labeled a
"security risk." Secondly, although Livingston's retest report stated that it was
"felt" that he had "cleared the question of cheating customers," there was left
outstanding his admission that he had manipulated one neck and the statement that
on, his first chart he had responded to cheating the company on "necks." [Em-
phasis supplied.] Livingston was not discharged.
Stoneking's testimony concerning Livingston's retest discloses that when Stone-
king wanted to, even in 1963, he could and did question Truth Verification's report
although it was considerably more specific than others which he accepted " automa-
tically." Thus, Stoneking explained that since Livingston was a towmotor opera-
tor in the warehouse and not a driver and the report referred to cheating custom-
ers, "we had to determine how Livingston could possibly cheat a customer." The
only thing "we could think of," Stoneking went on, was that "occasionally,
though probably rarely,", Livingston went out on a truck as a helper which sug-
gested that he might be in collusion with the driver "so we felt like a [retest] was
in order for him to clear himself' or, possibly, to provide information about some-
one else having stolen something . This explanation was no doubt communicated
to Truth Verification with the result that Livingston on his retest had no
difficulty clearing the question of "cheating-customers." On the other hand, his
work of moving merchandise from place to,place in the warehouse put him in
a position in which he could easily obtain "necks" to manipulate but neither
Stoneking nor Truth Verification seemed concerned about his response on the first
test to "cheating the company on necks." [Emphasis supplied.]
Otis Johnson's first report stated that he was-
running a very nervous test. He does react to stealing from Lone Star
Co. It is, quite possible that this person might have a guilt complex because
on the second chart the question was asked, "Have you stolen 25 cases of
liquor from Lone Star Co." Subject responds to the above question just about
as much as to all other questions, indicating that he is reacting to the word
steal. Would suggest close supervision. I would recommend that if this
person is interested in clearing his test that he be retested.89
The carbon copy of the report in Truth -Verification' s files shows that the last
sentence is in original typing rather than in carbon. Exactly when or why it was
added is not disclosed by the record although this is probably one of the reports
which Truth Verification's typist Morris testified was "redrafted by McBride."
sa Suber is the employee who testified that he was "a little shook up" when he was-sent
to take his retest because he "wasn't positive" that he would "pass it" since "everybody
else had left," i.e., been discharged. Respond`ents' expert witness on polygraphing, Hatcher,'
conceded that under such circumstances an employee would be "a little more apprehensive
than normal," that it would be a "variable" which he had previously defined as "an in-
dication" that the testee was telling a lie when he was not telling a lie."
w The operator's opinion recorded on Truth Verification 's records is: "Subject seems
to be pretty nervous. Responds to theft from Lone Star. However, responds to stealing
25 cases of whisky which are not actually missing."
THE LONE STAR COMPANY 721
Needless to say, before this sentence was added, the report indicated that Johnson
could be retained although close supervision was suggested.90
On his retest, Johnson was reported to respond
too violently to questions of, "taken whiskey have not paid for" and "have
you been honest with Lone Star Company." Runs a very nervous test as
before, feel that he has not cleared and is a security risk.
One employee listed in the Union's letter, Eugene Treadwell, was retested and
cleared. His first test report stated that he ran
a good test with the exception of the response to calling in short when he
actually wasn't. Subject would make no admissions. Stated that he had nev-
er called in short except when he actually was. The response to this question
is not great, however, it must not be overlooked because he responds to no
other question and if he is capable of clearing the other questions then he is
capable of clearing the above question also. Would recommend supervision.
After this retest, it was reported that Treadwell "did not respond to theft from
Lone Star Company. There was no indication that he got the 3 shorted cases of
Cutty Sark."
Although the retesting and clearing of Treadwell shows that Respondent was
willing to retain some union members, Respondent could and did accomplish its
purpose by discharging nine union members. Under these circumstances, it was
immaterial whether Treadwell was retained or discharged. As the court said in
N.L.R.B. v. W. C. Nabors, d/bla W. C. Nabors' Company, 196 F. 2d. 272, 276
(C.A. 5), cert. denied 344 U.S. 865, "The fact that Respondent retained some union
employees does not exculpate him from the charge of discrimination as to those
discharged."
Three of the four employees retested were union members and only one of the
three "cleared" the retest. On the other hand, all but one of the employees who
"failed" the test and were discharged were named in the Union's letter which was
received before Truth Verification was asked to make "security risk" findings. It
is interesting to note that 9, or 50 percent, of the 18 employees who signed cards
were found to be security risks while only 1, or 20 percent, of the 5 rank-and-file
employees who did not sign cards were so found. Indeed, as set forth infra, the
notice posted by the Company states that all 10 of the employees who were dis-
charged for failing the test were listed in the Union's letter.
h. Conclusions with respect to the discharges
In my opinion, one of the most significant facts in the case is the Company's
unexplained failure to reply to the Union's letter of January 14. For the reasons
stated supra, I believe that Respondent's conduct in this respect reveals an attitude
toward the Union- wholly incompatible with the rights of its employees and its
obligations under the Act. Its failure to respond made it impossible for the
Union to answer any question concerning the unit thereby eliminating the need
for either a hearing or an election. In addition, the Company promptly dis-
charged enough union members to destroy the Union's majority and told its
employees the only way the Union could keep its promises was by striking. These
facts, together with the other facts set forth below, convince me that Respondent's
failure to reply to the Union's letter was motivated by a desire to gain time within
which to discharge and within which it did discharge a sufficient number of
employees to avoid its obligation to bargain collectiyely.
In addition, there is the statement of Manager Erickson" to Assistant Branch
Manager Stoneking a day or two before the January 23 discharges that "we will
run half [of them off] and we will have it made" and Supervisor Maxfield's similar
remark during the same period. Of even greater significance is the remark of
Supervisor Maxfield (who was present when the employees were discharged) to
employee Manners. When Manners commented, "I just don't understand why Mr.
Erickson want[s] to get rid of me because I didn't having nothing to do with that
union ... ," Maxfield replied, "They will probably let you work . . . I know you
didn't do nothing about the Union, didn't have nothing to do with it."
"McBride testified that Morris "forgot" to type the last sentence and added it later.
This explanation is far from satisfactory since neither this sentence nor the next of the
last sentence (would suggest close supervision) bear any resemblance to the notation on
Johnson's test jacket.
770-076-65-vol. 149-47
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although Maxfield denied, by implication, having made the above statement,
since he denied that he knew anything about the Union until several days after the
discharges, I have discredited his testimony and the similar testimony of Supervisor
Reumke 91 As set- forth supra, the. circumstances make it incredible that Maxfield
and Ruemke would not have learned of the union activity. If they did not, they
were the only ones in the Company, from Vice President Dillon down, who did not.
Why then did they-and Maxfield in particular-deem it desirable to deny
knowledge of any union activity until after the discharges? Was it because
they were afraid that if they admitted knowledge of union activity they might also
admit knowledge that it was responsible for the discharges?
Then there is the testimony of Polygraph Operator McBride that when he took a
group of the reports to Attorney Saccomanno on January 22 the latter glanced
over them and commented that "some of these boys are going to be fired" and
referred to a notice from a labor organization. Why did Saccomanno expect that
some of the employees would be fired? The Company's losses were not "abnor-
mal" and admittedly could have been caused entirely by mistakes and acci-
dents. The recently completed 'inventory had revealed nothing suspicious: The
Company's explanation, of course, is that a number of the reports concluded with
the statement that the employee was a "security risk."
This brings us to the question of why Respondent asked Truth- Verification to
make "security risk" findings in 1963. It had not done so in 1962 and there were
no "suspicious" circumstances which needed to be cleared up.92 No witness for
Respondent gave any explanation for the request nor even identified, the official
who decided to ask for such findings. The absence of such evidence is one of the
major reasons why I do not credit Respondent's claim that the 1963 tests were
simply the ordinary yearly tests and that it acted in all respects precisely as it would
have acted had there been no union activity.
It is undisputed that the request for a "security risk" determination was not made
until after a number of tests had been given and oral reports made and. after the
Union's letter was received . A "security risk" finding, of course , is a matter
of opinion and as the evidence set forth above indicates , not even necessarily the
opinion that Lone Star officials would have formed had they been considering the
"facts" disclosed by the tests. It did not require evidence by Lone Star of any
specific act of misconduct or even evidence of any suspicious circumstances. Even
more significantly, it was an "opinion" which could not be disproved or even
evaluated.
How few "objective" facts-even on the tests themselves-were required to
cause the conclusion to be drawn is demonstrated by the reports, particularly the
report on Gailes which admitted that the might be "completely innocent" of any
wrongdoing. In other cases, the report states merely that the employee did not
"clear" certain questions such as "Have you stolen anything from Lone Star?" As
previously noted, neither I nor company officials knows whether this means that the
employee had stolen, probably had stolen, possibly might have stolen, or just
conceivably might have stolen something sometime. Indeed, if the response was
slight, failure "to clear" the questions might be entirely meaningless.
In making its risk findings, Truth Verification could be expected to err on the
side of caution lest subsequent dishonest acts cast doubt on the whole procedure.
If Truth Verification concluded that all or most of the employees were "risks," all
or most could be discharged. And since 18 of the 23 rank-and-file employees had
signed cards, the probabilities were that most of those found to be risks would be
union members. Although a mass discharge would no doubt cause some incon-
venience, the employees could be replaced with little difficulty. For example,
although 22 out of 27 employees were discharged in 1959, there is no evidence that
the efficiency of the branch was affected to any extent, if at all. Nor does it appear
that the discharge of 10 employees in 1963 created any difficulty.
I am well aware that Lone Star has a security problem and is justified in
wanting to eliminate real security , risks. But I am also aware that in 1962 it
retained Jammer, whose honesty was seriously questioned by Truth Verification, for
4 months, i.e , until it suited Jammer 's convenience to resign because he had been
offered a more desirable job. Indeed, Erickson admitted that he never talked to
Jammer about the report and, so far as the record shows, Jammer would have
91 Although Respondent presented surrebuttal testimony concerning some of the issues,
Maxfield wa's not recalled and, therefore, did not deny having made the above statement
'92 It will be recalled that there were substantial losses in 1959 and 1960 when similar
findings were made.
THE LONE STAR COMPANY 723
continued working for the Company indefinitely had he not been offered a job by
the Post Office Department. In the case of Mitchell also, in 1962, the Company
waited nearly 2 months to have him retested after a similarly adverse report.93 But
on that occasion, the Company discussed the report with Mitchell and when he said
he could not understand why he failed the test, he was retested and retained. More-
over, if Respondent is as worried about security as it would have it appear,
Mitchell's ability to clear questions about theft during the few months he had been
reemployed would surely not prove that he was not a security risk. In other
words, if he had stolen during the 18 months he was employed in 1959-60, the
fact that he had not stolen during the few months immediately preceding the 1962
test was no guarantee that he was no longer a risk to the Company's security.94
As my repeated references to the Jammer case indicate, it is of prime importance
in my opinion. As previously stated, the major cornerstones of Respondent's case
are its claim that if acted in 1963 precisely as it acted in previous years, including
1962, when there was no union activity, its continuing security problem, and its
alleged policy of automatically discharging any employee who failed the test, at
least in the area of stealing. Basic to these contentions , of course , if the testimony
of Warehouse Manager Erickson and Assistant Branch Manager Stoneking con-
cerning the Company's actions with respect to the 1962 reports.
As previously set forth, Erickson testified that Jammer gave "notice" in Decem-
ber 1961, or earlier, that he was leaving to take a job with the post office. Since
Jammer was going to leave in a "week or ten days" and did leave within a "short
period," Erickson explained that he did not even talk to Jammer. Although I
could believe that Erickson might not recall the exact date on which Jammer left,
I do not believe that he did not know that Jammer remained in the Company's
employ for a substantial period-4 months-after the test . If Erickson was willing
to misstate the facts on this subject in order to support Respondent 's claims,, I am
unable to believe his testimony on any critical issue.
In addition to the reasons set forth elsewhere , another reason for my inability to
credit Stoneking 's testimony is his assertion that the reason Mitchell was not dis-
charged after the adverse 1962 report was that-contrary to fact-Mitchell was not
on the payroll, that is, he was not a regular employee but an "extra." By this
testimony , Stoneking disclosed that , like Erickson , he was willing to testify to
"facts" which would help the Company's case without regard to whether or not
they were true. Although a dishonest "extra" employee might be less, of a "risk"
than a dishonest regular employee because he had less opportunity to steal, he
would still be a "risk." Furthermore, Stoneking did not explain why, if Mitchell
was only an "extra," he was thereafter employed regularly not withstanding his
inability to pass the test concerning drinking, money, and stealing while employed
by Lone Star in 1959-60.95
My conclusions are also due in considerable part to the absence of evidence, other
than the tests, that anything has been stolen in 1962 or January 1963.96 Again,
my repeated references to this fact are not merely redundant. On the contrary,
they reflect the fact that the absence of such evidence has been constantly in my
mind when considering Respondent's claims concerning why it acted as it did in
91 It should be kept in mind that the reports on Jammer and Mitchell were admittedly
received by Erickson who reported them to Stoneking It should also be kept in mind
that the reports on Jammer and Mitchell were far more definite than most of those sub-
mitted in 1963.
ea Respondent argues in its brief that the fact that Erickson admitted receiving adverse
reports on Mitchell and Jammer proves that lie told the truth generally I do not agree.
Until his testimony concerning Jammer was checked against the Company's records, it
seemed to substantiate the Company's claim that in the past it had not retained any em-
ployee who failed his test In Mitchell's case, Erickson could point out that Mitchell
cleared his retest "fine," thereby again supporting the Company's position that only em-
ployees who passed the test were retained and also thereby establishing a policy of having
"doubtful" employees retested
° The Company's records disclose that Mitchell was discharged in August 1960 because
he failed to pass his polygraph test in February. Again, Respondent's delay of approxi-
mately 7 months discloses that in previous years it did not follow a policy of "auto-
matically" and promptly discharging anyone who failed his test.
' When I say "anything," I mean nothing other than merchandise which the Company
either knew or had good reason to suspect had been stolen by identified employees who
had been discharged The one exception, of course, is Manners who manipulated one neck
in the summer or fall of 1962 but was thereafter promoted
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
January 1963. For example, I would have been much more able to understand
Respondent's request for and to credit its alleged "automatic" acceptance of Truth
Verification's "security risk" conclusions if Lone Star had suffered substantial losses
as it did in 1959, 1960, and 1961. Had such losses in fact occurred or had there
been any objective reason to suspect that they had occurred, I might understand
why Lone Star decided to terminate any employee who did not receive 100 percent
clearance. Even absent such losses, I might well have credited Respondent's testi-
mony had it discharged two or three of the employees who the reports suggested
had been guilty of serious dishonesty. But I cannot credit the testimony of Re-
spondent's witnesses that, in the absence of any evidence of losses due to dishonesty,
it discharged nearly half of its rank-and-file employees on the basis of the reports,
some of which, as previously noted, are vague and unconvincing to say the
least.97 Included in the list were some of the Company's senior employees. Man-
ners, Gibson, and Mosie had been employed for approximately 4 years each and
Hardy had been employed for nearly 3 years. Johnson, Cruise, Parrott, and Suber
had been employed since at least mid-1961 and Gailes and Mitchell since the fall
of 1961. Although I have found that Lone Star officials believed that polygraph
tests could'detect dishonesty and act as a deterrent, I find it difficult to believe that
their faith in such tests was so complete that they would discharge-automatically
-nearly half of the employees, including some of the senior employees, because
of the possibility that -something had been stolen and because Truth Verification's
reports indicated that there was a possibility that the 10-employees had been guilty
of thefts which might not even have occurred.
It is clear that the Company had not operated on this basis in the past. As
previously stated, the 1959, 1960, and 1961 mass discharges were in connection
with substantial losses and most, if not all, of the employees confessed to having
stolen substantial amounts of merchandise or money.98 Only two employees were
discharged in 1962 and in the case of Checker Box, at- least,. Respondent had
substantial reason for terminating him which were wholly unrelated to the report
by Truth Verification. Indeed, Box's change of status form does not refer to the
polygraph report but states that he was discharged because he was "incompetent"
with the added explanation that he "Tried hard, but did not have the-ability to
learn and perform assigned duties."
Vice President Dillon was asked whether, except for the discharges in issue, he
could name any employee of Lone Star generally who had been discharged "just"
for failing the polygraph -test when nothing was missing from the Company.
His answer was, "No, I have no knowledge of that... 99 Although Supervisor
Maxfield testified that employees had been discharged in the past for failing the
tests, he later explained that he was referring either to preemployment tests or
situations in which a driver was actually "short . . . on his load." Supervisor
Ruemke likewise testified that he knew of no "old" employee who was discharged
for failing the test as distinguished from failure to employ regularly "extra" help
who did not pass their preemployment tests.
In sum, there is no evidence that, prior to 1963, any employee had ever been
discharged for no other reason than failure to "pass" his test when nothing was
known to be missingloo and 1963 was the first and only time when- there was a
mass discharge which did not coincide with substantial known losses.
Warehouse Manager Erickson and Assistant Branch Manager Stoneking were
both obviously aware of this departure from past practice and ought to "suggest"
that the Company had reason (other than the tests) to suspect that there had been
substantial dishonesty among the employees between January 1962 and January
1963. As previously noted, Erickson testified that $2,000 or $3,000 of the $5,900
breakage in 1962 "could" have been due to manipulating bottlenecks although he
conceded that he did not think so. In the absence of evidence that a single
bottleneck was turned in in 1962 or January 1963 (except the one by Manners),
07 Needless to say, the Union would still have had a majority if only six of its members
had been discharged.
08 Indeed, no tests were given in 1961.
09 Later, Dillon gave the following answer to a similar, question; "I assume that many
were discharged. I never made it a point to determine this with respect to any individual
or groups of individuals."
100 Although a major reason for Hall's discharge in 1962 may have been his failure to
pass the test, another reason also existed, i.e., his slowness.
THE LONE STAR COMPANY 725
Erickson must have known that there was no objective basis for his speculation that
up to half of the breakage "could" have been due to manipulated necks.'°'
Stoneking's testimony was considerably less speculative. On direct examination,
he was asked the following questions and gave the following answers:
Q. Have you had any particular problem with employees cheating . . .
customers? [Emphasis supplied.]
A. Well, I don't know. There have been many instances, I say many,
customers have called in and claimed that they didn't get all of their order,
and certainly I don't know whether it was stealing or whether it was an honest
mistake....
Q. Have you ever received advice or word from any customers of Lone Star
that employees at Lone Star were attempting to sell them whiskey? [Emphasis
supplied.]
A. It's- been a thing that has been going on for a good long time, and
it seems like it will pop up and you will hear of these things for a little
while, and then maybe there will be a lull....
Q. Were there any such episodes around the first of this year, 1963? [Em-
phasis supplied.]
A. Yes, sir, we have had some this year. [Emphasis supplied.]
Q. Do you remember any in particular?
A. Well, most of these calls would be directed to [Branch Manager] Shinn
or one of the sales managers. . . . I have taken a couple • of calls and I have
been informed of several others by the various people who received the calls.
When asked if he was saying that some such calls occurred in "early January,"
Stoneking replied,
I am certain that we had a call or two around that period. Not a lot of them,
but maybe one of two, somewhere in that area of time.
Stoneking was not asked by company counsel to name either the customers or the
employees involved.
On cross-examination by counsel for the General Counsel, Stoneking was asked
the following questions and gave the following answers:
Q. . . . What customers called in at this period [January 1963] complaining
that they had been cheated?
A. I can't recall any particular customer calling in January.
Q. Well, can you recall them in December?
A. I can recall this one we talked about a little while ago and the case of
gin, I think it was December . I cannot tell you the customer 's name.
* * * * * *
Q. And . ' . I mean there would be an invoice to indicate what driver
had made the delivery to that customer, wouldn't there?
A. In most instances.
* * * * * * *
Q. And if there were more than one invoice, then the respective drivers who
had delivered whiskey to that customer, you would have the names of those
drivers, would you not?
A. Yes, sir.
* * * * * * *
Q. . . Were you having more of these calls . . . in 1962, at the end of
1962 than you had had at the end of 1961?
A. That could be pure speculation. I don't know.
On cross-examination by counsel for the Union, Stoneking was asked the follow-
ing questions and gave the following answers:
Q... . Can you remember any specific instance in 1962 or 1963, up to
January, in which a customer called in and reported that a driver was trying
to sell the customer liquor? [Emphasis supplied.]
A. Yes, sir. [Emphasis supplied.]
101 As noted supra, Erickson's testimony that there had been a "lot of unexplained short-
ages" in four brands in 1962 is not supported by any company records and Supervisor
Ruemke, who assists in the taking of inventory, admitted that he could not recall that any
merchandise was "lost" or "stolen" in 1962.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. ... Tell me every instance that you can now recall.
A. Well, I can recall perhaps a dozen instances. I cannot name the stores
without going back and questioning the people that actually received the
calls. . . . I can recall at least two stores that called and reported that someone
was trying to sell Lone Star brands.
Q. All right. When did this happen?
A. I would . . . say between, probably September and November of 1962.
TRIAL EXAMINER: That is, that one of your drivers was attempting to
sell....
The WITNESS: No, not one of our drivers. Some anonymous person had
called their store attempting to sell our merchandise. [Emphasis supplied.] 102
Q. . . . Do you know of any case in 1962 or in January 1963 when a
customer reported to your company, here in Houston, that one of your em-
ployees was trying to sell them liquor?
A. No, sir.
* * * * * * *
Q. But you have no reason to believe that one of your employees was
involved?
A. I have no reason to believe that he may or may not have been. I
don't know.
Q. Since January of 1962 and up through January of'1963 has any individ-
ual employee been identified in any way with such a call as that?
A. No sir.
Attorneys Saccomanno and Hebinck had obviously prepared Respondent's case
very thoroughly and with careful attention to detail. Under the circumstances, I
am certain that Attorney Saccomanno would not have asked Stoneking about calls
to customers by Lone Star employees had he not been informed that such calls had
occurred. Stoneking, in turn, was attentive to questions and unusually deliberate
in all of his answers and I am sure that he did not misunderstand the questions
asked him by Attorney Saccomanno or the one asked by the union attorney with
respect to reports concerning "a driver trying to sell the customer liquor." But it
was only after extensive cross-examination and when it seemed certain that he
would be asked to name the customers and the employees involved that Stoneking
admitted that the calls were anonymous and that no employee had been "identified
in any way" with the calls.
In view of the Company's stipulation that it had no evidence (other than the
polygraph tests) that any of the dischargees had been guilty of dishonesty, Stone-
king's admission is not important as evidence. In my opinion, however, it is of
major importance in assessing Stoneking's credibility.and it causes me to believe
that his answers to other questions. were also contrary to the facts. , Stoneking's
testimony, far more than that of Erickson, is the basis for Respondent's claims
concerning the procedures, events, and policies which led up to the discharge of
the 10 employees.103 In view of his testimony quoted above on a. major fact-i.e.,
grounds for suspecting its employees were being dishonest, I' am of the opinion
that Stoneking was not a forthright and credible witness and that little reliance can
be placed upon his testimony generally.104 As the Court said in N.L.R.B. v. Pitts-
burgh S.S. Company, 337 U.S. 656, 659:
The facts disputed in litigation are not random unknowns in isolated equa-
tions-they are facets of related human behavior, and the chiseling of one facet
102 There is no evidence in the record that Lone Star was the exclusive distributor in
Houston for the brands It sells.
1C6 Stoneking is Erickson's superior and it Is clear that the decision to discharge the
10 employees was not Erickson's primarily. As he told employee Parrott, "they had told
Erickson at the office that he [Parrott] had not passed his test I don't know anything
about it That is what they said, that is the way it is Erickson told employee Suber
that he had grown to like Suber but that he [Erickson] worked there the same as [Suber]
did . . When employee Gailes asked Erickson what "security risk" meant, Erickson
replied that he did-not know, that "it was what was handed down to him [Erickson]."
104I also find incredible Stoneking's testimony that he and Erickson never really "dis-
cussed" the Union between themselves although they "may have made reference to it "
THE LONE STAR COMPANY 727
helps to mark the borders of the next. Thus, in the determination of litigated
facts, the testimony of one who has been found unreliable as to one issue may
properly be accorded little weight as to the next.105
Let there be no mistake about what I am saying and what I am not saying. In
concluding that Respondent did not discharge the 10 employees because they
"failed" the tests and were found to be security risks by Truth Verification, I
am not saying that Lone Star did not have the right to discharge the employees
on the basis of the reports or for reasons even less substantial, or for no reason. I
am only saying that I do not believe that the reports were the true reason for the
discharges. I am also aware that it is not for me or the Board to decide what
constitutes grounds for discharge. But, in my opinion, this does not mean that
the trier of fact must conclude that employees were discharged for cause simply
because a reason existed for which they could have been discharged validly.'06 As
the court said in N.L.R.B. v. Hudson Pulp & Paper Corporation, et al., 273 F.
2d 660, 666 (C A. 5), "If the motivating cause of the discharge is the union
activity of the discharged employee, then the discharge is, of course, unlawful,
even though there might have been a proper ground for the discharge. . .
Unlawful motives are not to be lightly inferred. . [but] If there are two
grounds for discharge, one proper and the other unlawful, and the evidence as a
whole would make the inferences as to which was the motivating cause reasonably
equal, the conclusion reached by the Board should be sustained." :107
In a case in which the fundamental issue was not dissimilar to the one presented
here, one court recently said:
We are not saying that the economic reasons offered by an employer must
meet the approval of a governmental agency before he may go out of
business, or even that these economic justifications must be economically
sound. Rather, we are saying that these economic considerations must be
honestly invoked, and that an employer may not attempt to disguise an anti-
union motive by speaking the language of economic necessity.los
The facts set forth above, in combination, cause me to conclude that Respondent
attempted "to disguise [its] anti-union, motive by speaking the language of eco-
nomic necessity," which in this case is based on its security problems, its prior
decision to require the employees to take annual polygraph tests, and the security-
risk findings made by Truth Verification in the 10 cases. But Respondent's
losses due to dishonesty between January 1962 and January 1963 were problemati-
cal only although the Company had records of shortages and breakages reported
by each employee; no evidence of any misconduct or suspicious act was introduced
except in the case of Manners; in the past, Lone Star had effected a mass discharge
only when there were substantial, known losses; it did not discharge. Jammer and
Mitchell in 1962 although, Truth Verification' raised serious questions concerning
their honesty; and it discussed 'the adverse report with Mitchell in 1962 and in the
case of the drinking reports that same year listened to the employees' side of the
question and was persuaded by their explanation although Respondent's testimony
reveals that the reports indicated that there had been drinking on the job as well
as in the warehouse after work. -
105 Cf. the statement of the Court of Appeals for the Fifth Circuit in N.L.R B. v Robbins
Tire & Rubber Company, Inc, 161 F. 2d 798; 800, cited with approval by the Court in
the Pittsburgh case, that unless the discredited evidence "carries its own irrefutable truth,
that is, it is of such a nature that it cannot in law be discredited," the trier of fact may
properly discredit all of the testimony of one witness or all of the witnesses for one side.
106 As one court pointed out long ago, "It must be remembered . that the question in-
volved is a pure question of fact, that, in passing upon it, the Board may give considera-
tion to circumstantial evidence as well as to'that which is direct ; that direct evidence of
a purpose to violate the Act is rarely obtainable . . . " Hartsell Mills Company v.
NLRB., 111 F. 2d 291, 293 (C.A. 4).
1m Cf. the statement in Respondent's brief that "Violation of the National Labor Rela-
tions Act, as amended, is shown only if the forbidden purpose stands forth as the only
rational and reasonable explanation of Respondent's actions."
108 N L R B v Savoy Lannndry, Inc, 327 F. 2d 370 (C A 2). See also N L R.B. v C & J
Camp, Inc, et al ., d/b/a Kohler-Camp Phosphate Enterprise, 216 F 2d 113, 115 (C.A. 5),
in which the court pointed out that a discharge "ostensibly for cause" must be in reality a
discharge for cause and a "synthetic discharge for cause may not be used by the employer
as a shield and buckler to protect him against a discharge, the dominant motive of, the
moving cause for sshich is anti-union discrimination."
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As for the security -risk findings, Lone Star had not requested such findings in
1962 when there was no union activity ; the security-risk findings would not have
been made in 1963 but for the Company 's specific request that they be made; the
request was made after most of the tests were given and after the Union's letter
was received ; the official making the decision to ask for such findings is not
identified and no reason is given for making the request; the findings , which are
virtually irrebutable , are based on few if any tangible findings of fact and in some
cases are concededly based on possibilities only; Respondent 's own evidence con-
cerning its past actions does not support its contention that it delegates to Truth
Verification the power to determine what makes an employee a security risk at
Lone Star and automatically discharges on this basis alone-at least in the absence
of evidence of a specific loss-any employee so labeled by Truth Verification; and
although Truth Verification may be able to tell when an employee is lying or
telling the truth , this does not mean that it is qualified to decide what makes an
employee a security risk at Lone Star; 109 and I find incredible the testimony of
Lone Star witnesses that it is the Company 's policy to discharge automatically any
employee who "failed" his test "for whatever reasons Truth Verification relied
upon." 110
Finally, there is the Company 's failure to reply to the Union 's letter; the state-
ments indicating that Respondent was seeking a method by which it could elimi-
nate half of the employees ; Supervisor Maxfield 's statement to Manners that the
Company would probably not discharge him because he [Maxfield ] knew Manners
had nothing to do with the Union ; and the Company 's statement in its notice that
the "only" way the Union could keep its promises was by striking which discloses a
deep-seated opposition to the principle of collective bargaining.
It is true that one of those discharged was Manners who had nothing to do with
the Union . However, it was necessary that he be discharged once he had been
labeled a security risk by Truth Verification for otherwise Respondent would have
been in a position of discharging only those employees who were union members
who were declared to be security risks. And its claim that it "automatically"
discharged any employee so labeled would have been patently false. As the court
said in N.L.R.B . v. National Garment Company, 166 F . 2d. 233, 238 (C.A. 8),
cert . denied 334 U.S. 845 . "The contention of Respondents that they did not dis-
criminate against the employees because they laid off all employees , both union and
non-union , may not be sustained . They discriminated against all employees [non-
union as well as union] by treating them differently than they would have treated
them had some of them not joined the union .. " 111 Moreover , the Company
may have mistakenly believed that Manners was listed in the union letter . At least,
its February notice states that the Union gave the Company a list of the 18 em-
ployees it had "signed up" and "Unfortunately 10 on the list failed to pass the lie-
detector test and were terminated ...." [Emphasis supplied] 112
For the foregoing reasons, I conclude that a preponderance of the evidence
establishes that Respondent used the reports by Truth Verification as pretexts for
discharging 10 employees , its real reasons being its desire to destroy the Union's
majority and to avoid its statutory obligation to bargain collectively with the
majority representative of its employees . It follows, therefore , that Respondent
thereby violated Section 8 (a) (3) and (1) of the Act.113
100 As Stoneking pointed out , "Maybe Mr. McBride is not familiar with all of the things
about our business."
uo Again, I am not saying that Lone Star did not have the right to adopt such a policy
but only that I do not believe that it had and followed that policy As previously noted,
there is no evidence that any employee was ever discharged on the basis of the report
alone , at least when nothing was missing.
'n See also Lester Brothers, Incorporated, 131 NLRB 1144, 1156, enfd . 301 F. 2d 62
(C.A. 4).
112 The 11th employee listed in the complaint , Otis Pleasant , passed the test and accord-
ing to the Company , was discharged for failure to report an accident . As stated previ-
ously, Pleasant 's name was stricken from the complaint because be was not available to
testify.
us It is well settled , of course , that "If employees are discharged partly because of their
participation in a campaign to establish a union and partly because of some neglect or
delinquency , there is nonetheless a violation of the National Labor Relations Act "
NL.R.B. v. Jamestown Sterling Corp., 211 F . 2d 725, 726 ( C.A. 2). See also N.LR.B. v.
WTVJ, Inc., 268 F. 2d 346 , 347-348 ( C.A. 5), and cases cited therein.
THE LONE STAR COMPANY
III. REMEDY
729
Having found that Respondent has engaged in unfair labor practices , I shall
recommend the customary cease-and -desist order and the affirmative relief which is
conventionally ordered in cases of this nature. Any backpay found to be due
employees Cruise, Gailes, Gibson, Hardy, Johnson , Manners, Mitchell, Mosie,
Parrott, and Suber shall be computed in accordance with the formula set forth in
F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716. Discrimination against employees for seeking to bargain collectively
and a refusal to bargain with the majority representative of its employees go to
the very heart of the Act and demonstrate such an opposition to its policies that it
is reasonable to assume that the employer , under similar circumstances in the
future , will interfere with its employees ' statutory rights. Accordingly, I shall
include in my Recommended Order a provision directing Respondent not to inter-
fere with , restrain , or coerce its employees in any manner in the exercise of their
statutory rights. Because it is clear that Respondent's conduct was motivated by
opposition to all union activity among its employees and to the principle of collec-
tive bargaining generally , my Recommended Order will prohibit discrimination
because of or interference with the exercise by the employees of their statutory
rights on behalf of the Union or any other labor organization . For the reasons
set forth supra, I believe that an order directing Respondent to bargain with the
Union , on request , is necessary to effectuate the policies of the Act even if its
failure to 'reply to the Union 's letter did not violate Section 8 ( a)(5) and (1) of
the Act.
CONCLUSIONS OF LAW
1. The Lone Star Company is an employer within the meaning of Section 2(2)
of the Act and is engaged in commerce within the meaning of section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent did not violate Section 8 (a)( 1 ) of the Act by changing working
conditions , by stating that half of the employees would be run off the job, by
threatening to speed up the work and to discharge the employees who talked back,
or by telling the employees that a strike could cost them their jobs.
4. By discharging employees Theodore Cruise, Clarence Gailes, Cleo Gibson,
Elmer Hardy, Otis Johnson , William Manners , Leon Mitchell , Walter Mosie, Sam
Parrott, and Kenneth Suber in order to destroy the Union 's majority and to avoid
the Company 's statutory duty to bargain collectively with the majority representa-
tive of its employees , Respondent engaged in an unfair labor practice within the
meaning of Section 8 (a) (3) and ( 1) of the Act.
5. Since January 12, 1963, the Union has been and now is the statutory bargain-
ing representative of Respondent's employees at the Houston Branch in the follow-
ing appropriate unit for collective bargaining : all truckdrivers , truckdrivers' help-
ers, warehousemen , fork-lift operators , and checker-receiving clerks, excluding
office clericals , salesmen, guards , watchmen , and supervisors as defined by the Act.
6. By failing to reply to the Union 's letter in which it claimed to represent a
majority of Respondent's employees and requested the Lone Star Company to
bargain with it, Respondent engaged in an unfair labor practice within the mean-
ing of Section 8 (a) (5) and ( 1) of the Act.
7. The unfair labor practices set forth in paragraphs 4 and 6 are unfair labor
practices affecting commerce within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of- law , and the entire
record , and pursuant to Section 10(c) of the Act, I hereby recommend that the
Respondent , The Lone Star Company, its officers, agents , successors; and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in General Drivers, Warehousemen and Helpers
Local Union No. 968, or any other labor organization , by discharging or other-
wise discriminating against employees because they or some of them engage in
union activity and/or seek to bargain collectively.
(b) Refusing to bargain , on request , with General Drivers, Warehousemen and
Helpers Local Union No. 968 as the statutory bargaining representative, of its
employee at the Houston branch in the following appropriate unit for collective
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining : all truckdrivers, truckdriver helpers, warehousemen, fork-lift opera-
tors, and checker-receiving clerks, excluding office clericals, salesmen, guards,
watchmen, and supervisors as defined"by the Act.
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization , or form, join, or assist Local No.
968, or any other labor organization, to bargain collectively through representa-
tives of their own choosing, or to engage in other concerted activity for the
purpose of collective bargaining or other mutual aid or protection, or to refrain
from any or all such activity.
2. Take the following affirmative action:
(a) Offer Theodore Cruise, Clarence Gailes, Cleo Gibson, Elmer Hardy, Otis
Johnson, William Manners, Leon Mitchell, Walter Mosie, Sam Parrott, and Kenneth
Suber immediate and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and privileges, and
make them whole for any losses they may have suffered by reason of the discrimi-
nation against them in the manner set forth in the section entitled "The Remedy."
(b) Bargain collectively, on request, with General Drivers, Warehousemen and
Helpers Union No. 968 as the statutory bargaining representative of the employees
in the above-described appropriate unit with respect to rates of pay, wages, hours
of employment, and other terms and conditions of employment, and, if an under-
standing is reached, embody such understanding in a signed agreement.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, 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 this Recommended Order.
(d) Post in its plant, copies of the attached notice marked "Appendix." 114
Copies of said notice , to be furnished by the Regional Director for Region 23, shall,
after being signed by Respondent's representative, be posted by Respondent imme-
diately upon receipt thereof, and be maintained by it for 60 consecutive days there-
after, in conspicuous places , including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 23, in writing, within 20 days
from the date of the receipt of this Decision, what steps Respondent has taken to
comply herewith.118
It is further recommended that the complaint be dismissed in all other respects.
11{ In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
115 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that:
WE WILL NOT discourage membership in General Drivers, Warehousemen
and Helpers Local Union No. 968, or any other labor organization, by dis-
charging or otherwise discriminating against employees in regard to their
hire or tenure of employment or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form, join or
assist General Drivers, Warehousemen and Helpers Local Union No. 968, or
any other labor organization, to bargain collectively through representatives
of their own choosing, or to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
WAREHOUSE EMPLOYEES UNION LOCAL 570, ETC. 731
WE WILL offer to Theodore Cruise, Clarence Gailes, Cleo Gibson, Elmer
Hardy, Otis Johnson, William Manners, Leon Mitchell, Walter Mosie, Sam
Parrott, and Kenneth Suber immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their seniority or
other rights and privileges, and make them whole for any losses they may
have suffered as a result of our discrimination against them.
WE WILL bargain collectively, on request, with General Drivers, Ware-
housemen and Helpers Local Union No. 968, as the exclusive representative of
employees in the bargaining unit described herein with respect to wages,
rates of pay, hours of employment, or other terms or conditions of employ-
ment, and, if an understanding is reached, we will embody such understand-
ing in a signed agreement . The bargaining unit is:
All truckdrivers, truckdrivers' helpers, warehousemen, fork-lift opera-
tors, and checker-receiving clerks, employed in the Houston branch, ex-
cluding office clericals salesmen , guards, watchmen , and supervisors as
defined by the Act.
All our employees are free to become, remain, or to refrain from becoming or
remaining, members of the above-named or any other labor organization, except to
the extent that such a right may be affected by an agreement in conformity with
Section 8(a) (3) of the National Labor Relations Act.
THE LONE STAR COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify any of the above-named employees presently serving in
the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 6617
Federal Office Building, 515 Rusk Avenue, Houston, Texas, Telephone No. Capitol
8-0611, Extension 296, if they have any question concerning this notice or com-
pliance with its provisions.
Warehouse Employees Union Local No. 570, International Broth-
erhood of Teamsters , Chauffeurs, Warehousemen and Helpers
of America and Whitaker Paper Company
Truck Drivers and Helpers Local No. 355 , International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America and Whitaker Paper Company. Cases Nos. 5-CP-28
and 5-CP-29. November 13, 1964
DECISION AND ORDER
Upon charges separately filed on January 24, 1964, by Whitaker
Paper Company against Warehouse Employees Union Local No. 570,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, and against Truck Drivers and Helpers
Local No. 355, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, both herein referred to as
the "Unions" or "Respondents," the General Counsel of the National
Labor Relations Board, by the Regional Director for the Regions,
149 NLRB No. 68.