Southwire Co.

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