The Kent Corp.

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