Glover Bottled Gas Corp , Vogel'S, Inc , New York Propane Corp , Synergy Gas Corp , Synergy Group, Inc

GLOVER BOTTLED GAS CORP Glover Bottled Gas Corp , Vogel's, Inc , New York Propane Corp , Synergy Gas Corp , Synergy Group, Inc and Ralph Kendrick and Local 282, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, AFL-CIO Cases 29-CA-11302, 29-CA-10641, 29-CA-10763-1, 29-CA-10763-2, 29-CA- 10795-1, 29-CA-10795-2, and 29-CA-12653 February 8, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFr On August 26, 1987, Administrative Law Judge Philip P McLeod issued the attached decision The Respondent filed exceptions and a supporting brief The General Counsel filed cross-exceptions and a supporting brief The Respondent filed an answer- ing brief in response to the cross-exceptions The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge's rul- ings, findings,' and conclusions2 and to adopt the recommended Order The judge found, and we agree, that the Re- spondent violated Section 8(a)(3) and (1) of the Act by denying bereavement and vacation benefits to returning strikers In adopting the judge's finding, we have applied the principles articulated in Texaco Inc, 285 NLRB 241 (1987), for the applica- i The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 Member Johansen agrees with the judge that the Respondent violated Sec 8(a)(5) and (1) of the Act by instituting its polygraph policy before the parties reached a good faith impasse over the issue However in so doing he would not as did the judge characterize the Respondents po sition on the matter as so inherently objectionable that it was necessarily designed to frustrate the parties ever reaching agreement on the poly graph issue See Member Johansen s dissent in Reichhold Chemicals 288 NLRB 69 (1988) In agreeing with the judge that the allegation concerning the Respond ent s withdrawal of recognition is not barred by Sec 10(b) of the Act we rely on his fording that given the context in which Shientag the Re spondent s attorney expressed his belief that the Union did not represent the people in the place anymore his remarks did not rise to the level of a withdrawal of recognition by the Respondent The Union therefore lacked the clear notice required to start the running of the 10(b) limits tion period We do not rely on the judges further observation that a withdrawal of recognition at the time Shientag made the remarks would have been unlawful since the question whether Sec 10(b) operates to bar an allegation depends on whether the charging party had clear notice of a possible violation more than 6 months before the filing of the charge not on whether such a charge would or would not have merit 873 tion of the test as set forth in NLRB v Great Dane Trailers, 388 U S 26 (1967) See also Johns-Manville Sales Corp, 289 NLRB 358 (1988) This test requires that the General Counsel make a prima facie showing of some adverse effect of the denial of benefits on employee rights The General Counsel can meet this burden by showing that (1) the benefit was accrued and (2) the benefit was withheld on the apparent basis of a strike Once the General Counsel makes a prima facie showing, the burden, under Great Dane, shifts to the employer to come forward with proof of legitimate and sub stantial business justification for its denial of bene fits The employer may meet this burden by prov mg, inter alia, that it relied on a nondiscriminatory contract interpretation that is reasonable and argu- ably correct and thus sufficient to constitute a le gitimate and substantial business justification for its conduct If the employer proves business justifica tion, the Board may nevertheless find a violation if the employer's conduct is demonstrated to be "in herently destructive" of employee rights or moti- vated by antiunion intent Applying these principles here, we find that the General Counsel established a prima facie case The benefits were accrued and the Respondent ad mittedly withheld the benefits on the basis of a strike Further, the Respondent has not met its burden of showing that it denied the benefits based on a legitimate and substantial business justification We reject the Respondent's contention that the most recently expired contract provided that an employee must work continuously from April 1 to March 31 to be eligible for vacation pay That in- terpretation of the contract, essentially for the rea sons set forth by the judge, is both unreasonable and not arguably correct Accordingly, we adopt the judge's finding that the Respondent's withhold- ing of benefits violated Section 8(a)(3) and (1) of the Act Given our disposition of this issue, we find it un- necessary to decide whether the Respondent's con- duct was inherently destructive of employee rights ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Glover Bot tled Gas Corp, Patchogue, New York, Synergy Gas Corp, Deer Park, New York, Vogel's Inc, Farmingdale, New York, New York Propane Corp, Farmingdale, New York, and Synergy Group, Inc, Farmingdale, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order 292 NLRB No 99 874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Elias Feuer Esq for the General Counsel Daniel Shientag Esq, Farmingdale, New York, and Arthur R Kaufman Esq (Kaufman Frank Schneider & Rosensweig), of Melville, New York, for the Re spondents DECISION STATEMENT OF THE CASE PHILIP P MCLEOD, Administrative Law Judge I heard these cases on 13, 14, 15, and 16 May and 3 and 4 June 1986, and 28 April 1987 in New York New York The matter originated from a charge filed in Case 29- CA-10641 on 5 August 1983 by Local 282, International Brotherhood of Teamsters Chauffeurs, Warehousemen and Helpers of America (the Union), against Glover Bot tled Gas Corp and Synergy Group, Inc A complaint and notice of hearing issued in that case on 30 September 1983 The charges in Cases 29-CA-10763-1 and 29-CA- 10763-2 were filed 6 October 1983 The charges in Cases 29-CA-10795-1 and 29-CA-10795-2 were filed 17 Octo ber 1983 An order consolidating cases and complaint and notice of hearing issued in those cases on 30 Novem ber 1983 All the above referenced cases were then con solidated for hearing by order dated 7 February 1984 The hearing in those cases was postponed indefinitely by order dated 21 June 1984 The charge in Case 29-CA-11302 was filed by Ralph Kendrick on 11 July 1984 A complaint and notice of hearing issued in that case on 24 September 1984 The hearing in that case was later postponed indefinitely by order dated 10 April 1985 On 21 April 1986, all the out standing cases were consolidated and set for hearing on 13 May 1986 The substantial delays that occurred during the times these cases were postponed indefinitely resulted from protracted litigation between the parties on related issues before the Federal courts and later before an arbitrator This litigation is described in greater detail below The charge in Case 29-CA-12653 was filed by the Union on 26 September 1986 A complaint and notice of hearing issued 7 November 1986 On 10 February 1987 the General Counsel moved to reopen the other cases captioned above in which the hearing had already been held and to consolidate them with Case 29-CA-12653 Respondent filed a statement opposing the motion to reopen On 18 March 1987 I granted the motion of the General Counsel and ordered that further hearing be held, which was done on 28 April 1987 The parties stipulated that Glover Bottled Gas Corp, Vogel s, Inc New York Propane Corp Synergy Group Inc and Synergy Gas Corp (Respondent) are a single, integrated enterprise and a single employer within the meaning of the Act The consolidated complaints allege numerous violations of Section 8(a)(1), (3), (4), and (5) of the National Labor Relations (the Act) They allege that at the conclusion of an economic strike by the employees of Glover Bottled Gas Corp, some of the em ployees were never reinstated to available positions be cause work was transferred by Respondent between vari ous companies of the single integrated enterprise and be cause new employees were hired in order to avoid re calling employees who had engaged in the strike The complaints alleged that those employees who were rein stated were not reinstated to positions that they held prior to the strike, but rather were discrimmatonly rein stated to less desirable positions The consolidated com plaints further alleged that such employees were not ac corded proper seniority and, as a result, were not as signed as much overtime work as they would have been assigned had their seniority rights been respected The complaints alleged that Robert Bradley, who was em ployed by Synergy Gas Corp was discnminatonly dis charged for trying to organize those employees The complaints alleged that Respondent violated Section 8(a)(5) of the Act by unilaterally changing the health benefits of Glover's employees represented by the Union and by unilaterally instituting a requirement that Glov er s employees submit to a lie detector test on demand or face discharge The complaints further alleged that Glover s employees who went on strike were discnmina tonly denied vacation pay for calendar year 1983 as ret ribution for having engaged in the strike Finally the complaints alleged that Respondent discnminatonly dis charged employee Ralph Kendrick because he refused to take the unilaterally imposed lie detector test and further because of Kendrick s participation in a Board hearing conducted on 11 July 1984 The complaint in Case 29-CA-12653 alleges that Re spondent violated Section 8(a)(5) of the Act by not re sponding to written requests from the Union on 9 April, 1 July and 8 August 1986 to meet and bargain with the Union as the representative of employees at its Patcho gue New York facility, including drivers platform men and servicemen and by refusing to furnish the Union with the names and addresses of Respondents employees employed in these bargaining unit positions In its answers to the various complaints, Respondent admitted certain allegations including the filing and serving of the charges the status of various entities as employers within the meaning of the Act, the status of the Union as a labor organization within the meaning of the Act and the status of various individuals as supervi sors and agents of Respondent within the meaning of Section 2(11) of the Act Respondent denied having en gaged in any conduct that would constitute an unfair labor practice within the meaning of the Act At the trial all parties were represented and afforded full opportunity to be heard to examine and cross exam me witnesses and to introduce evidence Following the close of the trial, both parties filed timely briefs with me which have been duly considered On the entire record in this case and from my observa tion of the witnesses, I make the following FINDINGS OF FACT ANALYSIS, AND CONCLUSIONS I JURISDICTION Glover Bottled Gas Corp is a New York corporation with its principal office and place of business in Patcho gue, New York, where it is engaged in the sale and dis tribution of propane gas and related products Synergy Gas Corp is a New York corporation with an office and GLOVER BOTTLED GAS CORP principal place of business in Deer Park , New York, where it, too, is engaged in the sale and distribution of propane gas and related products Vogel s, Inc is a New York corporation with its principal office and place of business in Farmingdale, New York, where it is engaged in the distribution of forklifts and other material handling equipment New York Propane is a New York corpora tion with its principal office and place of business in Farmingdale, New York, where it is engaged in the wholesale and retail fuel conversion of motor vehicles Synergy Group, Inc is a New York corporation with its principle office and place of business located in Farming dale, New York It serves as the parent corporation of Glover Bottled Gas Corp , Vogel s, Inc , New York Pro pane Corp , and Synergy Gas Corp As indicated, the parties have stipulated that these entities comprise a single, integrated enterprise and a single employer within the meaning of the Act During the past calendar year, which period is representative of all times material these entities have individually and collectively purchased and caused to be transported and delivered to its New York facilities propane gas and other goods and materials valued in excess of $50,000, which were transported and delivered in interstate commerce directly from States other than New York Respondent admits that these enti ties are engaged in interstate commerce within the mean ing of the Act Respondent is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II LABOR ORGANIZATIONS Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is, and has been at all times material , a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES A Background Glover Bottled Gas Corp and the Union were parties to two successive collective bargaining agreements from 1976 to 1979 and from 1979 to 1982 covering all drivers platform men and servicemen employed at the Glover facility in Patchogue New York The most recent col lective bargaining agreement expired on 31 July 1982 Between 1 August 1982 and 2 February 1983, Glover and the Union held several bargaining sessions but were unable to reach the terms of a new agreement On 3 Feb ruary 1983 Glover employees represented by the Union commenced an economic strike Positions of the parties remained far apart throughout negotiations In the most recent agreement, the starting rate for new employees was $3 75 per hour In contract negotiations, the Union demanded a starting rate of $6 50 At the meeting on 2 February just prior to the commencement of the strike the Union was still demanding a starting rate of $6 per hour At the beginning of negotiations , the Union demanded a $3 per hour journeyman raise from $8 05 to $11 05 On 28 October the Union reduced its demand for an hourly increase to $2 per hour, and on 2 February the Union 875 still demanded an hourly rate increase of $1 50 per hour Throughout most of the negotiations , Glover offered an hourly rate increase of 25 cents per hour in 1982, 12 1/2 cents per hour in 1983, and 12 1/2 cents per hour in 1984 The Union demanded an increase in employer pen sion contributions from $1 51 per hour per employee to $1 95 per hour per employee At the same time , Glover demanded that employees be removed from the Union's pension plan and instead be covered by a company profit sharing plan Throughout negotiations Glover proposed/demanded a contractual provision regarding overtime, which provided Overtime assignments shall be rotated among the employees equitably and without regard to seniority ' The Union was unwilling to accept such a provision, insisting that overtime be offered to employees on the basis of seniority In a final offer on 10 January 1983, Glover offered substantially the same terms described above It offered an immediate wage increase from $8 05 per hour to $8 30 It offered wage rates during 1983 of $8 42 1/2 per hour and during 1984 of $8 55 per hour The manage ment rights clause contained in Glover s final offer was extremely broad There is no indication , however, that this clause played a major role in the parties being unable to reach agreement Rather, the parties remained far apart on other issues, which resulted in the manage ment rights clause being of no particular significance Respondents final offer was rejected by the Union, and a strike began on 3 February 1983 When the strike began, both parties suspended negotiations indefinitely All but one of the unit employees participated in the strike Only employee Joseph Schumpf continued to work On 7 February 1983 Schumpf was granted a raise from $8 per hour to $9 35 per hour, far in excess of what Glover was offering the Union While the strike was in progress , Glover hired 11 per manent replacements, including Joseph DeFarlo, service man and installer, Walter Denton, bulk driver Donald Gonforone, installer, Phillip Karlin, yardman Lawrence Krol, installer, Kevin McKeever, bulk driver Juan Obelar, Jr, bulk driver Robert Pinto serviceman Phi lippe Schutt mechanics helper Robert Vanhulsent bulk driver and Charles Visser bulk driver and installer By mailgram dated 15 April 1983 and received by Glover on 18 April, the Union made an unconditional offer to return to work on behalf of all striking employ ees B The Failure to Reinstate Strikers Fifteen bargaining unit employees participated in the strike which began on 3 February Respondent hired 11 permanent replacements between the beginning of the strike and the Union s unconditional offer to return to work Therefore, at the conclusion of the strike, four po sitions were unfilled, which should have been made available to strikers unless such work had become un available Respondent carries the burden of establishing that work was unavailable Respondent , however does not offer specific proof on this issue , and the available evi dence tends to support the contrary conclusion , i e, that 876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD work was available to which employees could have been assigned Employee Gary Estes testified that after he was finally reinstated in July 1983, he observed a shoe box full of orders that he estimated would take a person 8 to 9 months to complete Although I have the distinct impression that Estes might be exaggerating somewhat about the number of orders Branch Manager Bittner ad mitted there was a backlog in pickup orders that had de veloped as a result of the strike Both prior to and after the Union s unconditional offer to return to work, em ployees Ralph Kendrick, Estes, and Richard Dean ob served two employees of New York Propane Alvaro Avila and William Ruthig, performing pick ups and bulk deliveries to customers of Glover Finally Kendrick also observed drivers of Synergy performing bulk deliv eves to Glover accounts for an extended period after the Union s unconditional offer to return to work Respondent counters the General Counsel s evidence by noting that the operations of Synergy at Deer Park and Glover at Patchogue were merged and that Re spondent advised the Union of this fact by letter I note however, it was not until 19 September 1983 that Re spondent advised the Union of a decision to merge Syn ergy and Glover Accordingly, I find that this merger does not account for Respondents failure to reinstate the employees when the Union offered to return to work 5 months earlier in April The record also contains more specific evidence that Respondent failed to recall striking employees when work was available Permanent replace ment Philippe Schutt, a mechanics helper, terminated his employment during the payroll period ending 25 June 1983 Schutt was not replaced Permanent replacement Phillip Karlin, who worked as a yardman, terminated his employment with Glover during the payroll period ending 20 August Striker Richard Dean was reinstated on 1 September 1983 and assigned yard work for an proximately 1 month before being returned to normal duties, which he had performed prior to the strike During the week ending 3 September however employ ee Alvaro Avila was permanently transferred from New York Propane to Glover as a bulk driver the same post tion held by Dean This position was not offered to Dean nor to other striking employees who had worked as bulk drivers prior to the strike Respondent argues that because Avila was issued a W 2 Wage and Tax Statement for 1983 from Glover showing wages of ap proximately $25,000 that Avila must have been working at Glover throughout the strike commencing on 3 Febru ary I reject Respondents argument The payroll records of New York Propane and Glover, which were intro duced by the General Counsel show that Avila was ter minated from the payroll of New York Propane and transferred to the payroll of Glover during the week ending 3 September What Respondent may have done in terms of its yearend W 2 forms is of little significance, particularly because of the fact that its own payroll records clearly establish the transfer as contended by the General Counsel Robert Bradley was employed by Synergy Gas Corp from July to September 1983 After being hired Bradley was trained by Joseph Schumpf Bradley was trained to replace Schumpf on the route that Schumpf had driven for the preceding 2 years when he was on the Glover payroll After the training was complete and from ap proximately mid or late August until Bradley s discharge in late September 1983, Bradley replaced Schumpf on that route Respondent did not offer reinstatement to one of the strikers Anatin Rouzeau was a mechanic employed by Vogel s Inc in Brooklyn, New York Payroll records for the period ending 20 August 1983 reflect that Rouzeau was terminated from the Vogel payroll Payroll records of Glover show that from the payroll period ending 17 Sep tember 1983 until late December 1983 or early January 1984 Rouzeau was transferred and worked at Glover His name appears on the Glover payroll throughout that period During the payroll period ending 7 January 1984, Rouzeau was returned to the payroll of Vogel In its posttnal brief Respondent admits that Rouzeau was lent temporarily to Glover Nevertheless, Respondent notes that Rouzeau s W 2 form for 1983 shows no wages from Glover Respondent does not explain this discrep ancy and I find it unnecessary to resolve Payroll records of both Vogel and Glover clearly establish that Rouzeau was in fact terminated from the one payroll and transferred to the other for a period of months during late 1983 Respondent did not offer reemployment to any of the striking employees By letter dated 19 September 1983, Respondent ad vised the Union that a decision had been made to merge the operations of Synergy at Deer Park and those of Glover at Patchogue This letter notified the Union that The operation of Synergy Gas Corporation will be transferred to Patchogue and pending completion of the corporate re organization that operation and the oper ation of Glover will be run on a parallel basis The letter concluded by inviting the Union to conduct fur ther negotiations based upon the effects of this decision or relative to the entire body of the negotiations hereto fore had and presently pending The Union did not re quest negotiations or otherwise respond to this letter By letters dated 30 September 1983 Glover wrote to the striking employees individually stating that Glover was trying to update records concerning the availability of employees who went out on strike The letter asked employees to complete an enclosed questionnaire and return it to Respondent The enclosed questionnaire asked employees to check whether they had obtained other employment and would not return to work at Glover or whether they would return to work at Glover if a job became available The form also asked employees to correct their mailing address if necessary and to pro vide their telephone number By letters dated 14 Decem ber 1983 Respondent again wrote to some of the em ployees who had gone out on strike This letter stated that Respondent had received no reply to its first letter and enclosed another copy of the questionnaire described above The letter of 14 December concluded by stating If we receive no reply to this letter, we will assume that you are not interested in returning to work at Glover Bottled Gas Corp Employees Robert Zak, Ray mond Frey, and Nicholas Kahn all replied to Respond ent s letters by indicating they would return to work at GLOVER BOTTLED GAS CORP Glover if jobs became available Joseph Leone and Robert Cabral responded indicating that they had ob tained other employment and would not return to work at Glover Employees David Wahlfeld William Jones, and Stanley Wnenta received copies of at least one of Respondents two letters, as is reflected by certified mail, return receipts None of them replied to Respondent s letters Although a copy of Respondents letters was ad dressed to employee John Pickford, it is not known whether he received either copy, for there is no return receipt offered by Respondent As already described above, New York Propane em ployee William Ruthig was observed by Kendrick, Estes, and Dean performing bargaining unit work, including pick ups' and bulk deliveries to customers of Glover Bottled Gas both prior to, and subsequent to, the Union's unconditional offer to return to work On 9 January 1984, Ruthig was granted a small wage increase On the form in Ruthig s personnel file granting the raise, the reason for the increase was described as driver/yard man/works at Glover when needed' I therefore find Ruthig was continuing to perform bargaining unit work at Glover as late as January 1984 Payroll records of New York Propane introduced by the General Counsel reflect that Ruthig worked considerably more overtime than other employees on the New York Propane payroll The General Counsel argues that, taken in conjunction with the notation on Ruthig s pay raise, it is reasonable to infer that the excess overtime performed by Ruthig represented work performed at Glover Respondent argues conversely that it is impossible to determine from looking at a payroll whether Ruthig worked at New York Propane or at Glover Respondent doubts that it would be possible to make this determination even from one of its timecards I find it significant, as did Respond ent, that Ruthig worked a sufficient amount at Glover to warrant that notation as the reason for giving Ruthig a pay raise The General Counsels argument concerning the appropriate inference to be drawn from the amount of overtime credited him at New York Propane is a rea sonable one just as it was reasonable for Respondent to note Ruthig s help in granting him the pay raise In summary Respondent has offered no substantial business justification for not recalling strikers to the four available positions in April 1983 Available evidence es tablishes that employees of New York Propane, includ ing Alvaro Avila and William Ruthig, were used to per form bargaining unit work at Glover In addition van ous positions became available at Glover, which Re spondent could have and should have filled by strikers One position of mechanics helper became available in June when permanent replacement Schutt was terminat ed Another position of yardman became available in August when permanent replacement Karlin was termi nated Two other positions were available in August and September 1983 when Bradley was assigned bargaining unit work of Schumpf and when Avila was transferred to the Glover payroll rather than rehire a striker Yet an other position became available in September when Rou zeau was transferred from the Vogel payroll to that of Glover After January 1984, Respondent relied less on transferring employees from sister companies into the 877 bargaining unit and began instead to hire new employees to replace permanent employees who left Permanent re placements Kevin McKeever and Walter Denton both terminated their employment with Glover Branch Man ager Donald Bittner testified that McKeever and Denton were replaced by new hires Steven Hains and Michael Higgins In addition Respondent hired John Stout as a bulk driver and Jose Lopez as a combination installer and bulk driver The evidence establishes that in addition to the four unfilled positions that Respondent should have been able to offer to strikers as soon as they made their uncondi tional offer to return to work at least nine other posi tions described above became available that Respondent failed to offer to strikers By failing to offer available po sitions to strikers, by using employees of sister companies to perform bargaining unit work in order to avoid recall ing strikers and by hiring new employees without offer ing those positions to strikers Respondent violated Sec tion 8(a)(1) and (3) of the Act NLRB v Fleetwood Trail er Co 389 US 735 (1967) Laidlaw Corp, 171 NLRB 1366 (1968) enfd 414 F 2d 99 (7th Cir 1969), cert denied 397 U S 920 (1970) Pepe s Inwood Packing Co 206 NLRB (1973) Harvey Engineering Corp, 270 NLRB 1290 (1984) Respondents unlawful discrimination adversely affect ed a group or class comprised of all striking employees The record does not reflect the relative seniority of all strikers and it is therefore not possible at this time to de termine with certainty which strikers should have been recalled to specific vacancies I shall therefore leave that determination to the compliance stage of this proceeding I find, however, that Respondents 30 September and 14 December letters to employees, as well as the responses or nonresponses to those letters, do not in any way serve to remove any individual from the class of employees discriminated against Respondents course of discrimina tion began on 18 April when Respondent received the Union s unconditional offer to return to work, and Re spondent s letters to employees more than 5 months later cannot serve to terminate that course of unlawful con duct nor deprive any employee of their rights under the Act C The Reinstatement of Estes and Dean Estes was reinstated on 29 July 1983 Dean was rein stated on 1 September 1983 When Estes was recalled to work he was notified by Management Representative Joel Garey that he would be returning to a nonunion shop that he would be stripped of his seniority rights, and that he would not re ceive any vacation during calendar year 1983 When Estes and Dean were recalled, each of them was as signed for a period of approximately 3 weeks to 1 month to perform yard work Yard work as the name implies, is the least skilled maintenance work on and around Re spondent s premises The record shows that this work is traditionally assigned to newly hired employees Dean testified without contradiction that he had not been as signed yard work since the first month he was hired in 1967 878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent notes correctly that Estes license to drive had been revoked Respondent argues that Estes could hardly have been expected to work as a driver and that yardman was the only position left open Respondent however, admits that after approximately 3 weeks Estes was assigned to work with another driver on installa tions Respondent offers no evidence that installation work was not available as soon as Estes was reinstated Indeed, as I have found above the available evidence points instead to the conclusion that work was available not only for Estes and Dean but for two other strikers as soon as the Union made its unconditional offer to return to work Respondent has shown no justification what ever for treating Estes and Dean as new employees and making them perform yardwork for the first month after being brought back Particularly in view of Estes con versation with Management Representative Joel Garey, in which Garey told Estes that he would be stripped of seniority rights, I am convinced that Respondent was purposely attempting to humble Estes and Dean by treat ing them as new employees and making them perform yard work for a month before reassigning them to normal duties By doing so, Respondent discriminated against Estes and Dean in violation of Section 8(a)(1) and (3) of the Act D Assignment of Overtime Estes testified that when he returned to work on 29 July, he discussed working conditions with Service Man ager Donald Bittner According to Estes, Bittner stated that in accordance with the instructions of Respondent s counsel Shientag, Estes would no longer receive over time Estes had earned approximately 10 to 15 hours of overtime per week prior to the strike when overtime was assigned on the basis of seniority Portions of Estes testi mony were quite believable while other portions were not Estes exhibited significant hostility toward Respond ent on cross examination and I was left with the distinct impression that he was able and willing to exaggerate when he thought it might be helpful to the Union s case I do not credit Estes that Bittner told him he would no longer receive overtime The record reflects that, in fact, Estes began receiving overtime the very first week after he was reinstated What I believe actually happened is Bittner told Estes that overtime would no longer be as signed on the basis of seniority In Respondent's proposals to the Union throughout ne gotiations, Respondent demanded a contractual provision regarding overtime, which provided `Overtime assign ments shall be rotated among the employees equitably and without regard to seniority In his posttnal brief the General Counsel argues that Respondent never made a proposal during negotiations that the manner of assigning overtime be changed" from what it had been prior to the strike I am at a loss to understand the Gen eral Counsel s argument unless he simply overlooked the contractual provision regarding overtime Nevertheless, Respondent's position was clear throughout negotiations and was contained in its final offer to the Union in Janu ary When the Union commenced its strike in February 1983, the parties were far apart on the most important substantive issues After the strike started in February, negotiations were suspended indefinitely and neither party requested to meet with the other until late October 1983 Contrary to the argument of the General Counsel I find that at the time the strike started, the parties had indeed reached impasse on the terms of a new collective bargaining agreement Regarding all these circumstances, the fact that the Union was willing to make further con cessions is of little real significance The willingness to make concessions standing alone is not sufficient to negate an impasse The Union began bargaining with such high demands that if such were the case, it could continue to make concessions and thereby frustrate im passe ad nauseam The parties were so far apart and so far from reaching a substantive agreement that the dis parity between their respective positions at the time the strike started can only be described as an impasse As the General Counsel points out, Estes did not re ceive an average of more than 10 hours of overtime work per week until the payroll period ending 26 No vember 1983 Even after 26 November, Estes did not av erage 15 overtime hours per week Dean did not receive more than 10 hours of overtime in any 2 week pay period until he had been back to work approximately 3 months Avila, Denton, and Vanhulsent, all less expen enced drivers, worked more overtime than Dean through the payroll period of 24 June 1984 Nevertheless, Estes and Dean were assigned overtime work beginning with the very first week of their respective reinstatements They continued to work substantial overtime hours thereafter In calendar year 1982, Estes received gross wages of approximately $22,000, while Dean received gross wages of approximately $20 000 After Estes was reinstated, he earned wages of approximately $11,000 in the remaining 5 months of calendar year 1983 After Dean was reinstated, he received gross wages of approxi mately $8500 in the remaining 4 months of calendar year 1983 Estes gross wages for calendar year 1984 were ap proximately $23,000, while Dean s were approximately $22 000 Estes wages exceeded every member of the bar gaining unit except Avila Dean exceeded every member of the bargaining unit except Avila and McKeever McKeever s wages for the year exceeded Dean s by only $11 In summary, the evidence reflects that almost immedi ately after Estes and Dean were reinstated, they began to receive overtime assignments Throughout the remainder of calendar year 1983, the amount of overtime assigned Estes and Dean was less than some employees, but more than others It must be concluded that the amount of overtime work assigned Estes and Dean since their rein statements has been in general conformity with Respond ent's contractual proposal that overtime work be as signed equitably and without regard to seniority There is no evidence of any discriminatory intent on Respond ent s part in the assignment of overtime work since the reinstatement of Estes and Dean Accordingly I shall dismiss the allegation of the complaint that Estes and Dean were assigned overtime work in a discriminatory manner GLOVER BOTTLED GAS CORP E The Discharge of Bradley In April 1983 when the Union made its unconditional offer to return to work on behalf of Glover employees and no one was immediately reinstated, employees at Glover continued to picket that facility for some time Picketing gradually diminished and eventually ceased al together By September, only Estes and Dean had been reinstated at Glover In mid September, Respondent no tified the Union of its intention to merge the operations of Synergy at Deer Park and those of Glover at Patcho gue On 16 September 1983, Synergy employees James Flanagan, Robert Bradley, Gregory Garland, and Nor bert Jones signed authorization cards on behalf of the Union Bradley solicited cards from Garland and at least one other employee During August and September 1983 Bradley was as signed to drive the route that had previously been han dled by Glover employee Joseph Schumpf On 19 Sep tember, Bradley and bulk driver Franklin were directed by dispatcher/Office Manager Denise Nichols to begin parking their trucks at night at a new location in Patcho gue, approximately 20 miles from Deer Park Although it was standard procedure for drivers to leave the keys in the trucks overnight on 19 September, Bradley and Franklin took their truck keys home with them, at Nich of s direction On the following morning, 20 September, Bradley tele phoned Respondent and left the message with its answer ing service that he was sick and would not be coming to work On learning that the keys to Bradley s truck were not available, Respondent telephoned Bradley and asked Bradley to bring the keys to the office Bradley, who lives about a mile and a half from Respondents office, declined, saying that he was too sick to do so Bradley told Respondent that if Respondent sent someone to his house to get the keys, Bradley would meet them at the door Although Respondent was apparently unable to find a second set of keys for the truck, it did not send anyone to Bradley s house Instead Respondent had an other employee change ignition switches on the truck Employee Flanagan testified that he changed ignition switches on Respondents trucks in the past and that this job takes about 15 minutes and costs approximately $10 I found Flanagan credible About 9 am that same day Joseph Schumpf who was then on extended sick leave recouperating from a heart attack, drove to Synergy's bulk plant in Deer Park As Schumpf approached the facility he observed Brad ley standing in the street near the entrance talking to em ployee Ralph Kendrick Kendrick was one of Respond ent's most active union supporters During the strike, Kendrick regularly picketed Respondents premises and frequently directed verbal harassment at Schumpf, the only strike breaker Kendrick and other union members sometimes followed Schumpf on his daily route to engage in ambulatory picketing When Schumpf saw Bradley talking to Kendrick Schumpf drove to the Syn ergy Deer Park office and informed Respondent that he had seen Bradley talking to Kendrick Bradley denies that he ever went to any of Respond ent s facilities on the morning in question Bradley testi fled that he was sick and that he remained at home that 879 entire morning Nevertheless Bradley s affidavit, given to an agent of the Board during the initial investigation of this case, contains no reference to him being sick Employee Flanagan, who was called as a witness by the General Counsel, testified that he was present in the Deer Park office on the morning in question when Schumpf entered Flanagan heard Schumpf tell Office Manager Dempsey that he had just seen Bradley talking to Kendrick According to Flanagan, Schumpf was really nervous and jumpy " Schumpf told Dempsey, 'We got to get rid of him now That's not right that he should be doing that [talking to Kendrick] Schumpf then informed Edward Williams, who was in charge of the service operation, that he had seen Bradley talking to Kendrick After Schumpf spoke to Williams, Williams telephoned Respondents corporate headquar ters in Farmingdale where he spoke to a Mr Russel, vice president in charge of service According to Williams, I explained the whole situation, what had happened, he said okay, he d handle it from there " That's the end of my conversation or doings with it Schumpf then went to Respondent's corporate headquarters and met with John Vogel, Respondent's executive vice president Schumpf told Vogel what he had observed and admits adding that he `believed there would be trouble with this man being that he is now collaborating with the Union Schumpf testified that Vogel did not say any thing in response to Schumpf's suggestion that Bradley be fired Later that same day, Russel telephoned Plant Manager Donald Bittner and directed him to discharge Bradley Bittner testified candidly about his conversation with Russel and his later conversation with Bradley Bittner testified that when Russel first called, he asked if Bradley was a probationary employee Bittner said that Bradley was Bittner testified that Russel then stated He [Brad ley] did not bring keys in because he was ill but yet he was seen in front of one of our plants and we're dismiss mg him, I want you to dismiss him for lying Bittner telephoned Bradley that afternoon to inform Bradley that he was being discharged According to Bradley he asked Bittner wh} he was being fired Bittner allegedly replied that it was because Bradley had keys to the truck According to Bradley, he then ex plained why he had the keys Bittner replied that it did not make any difference that Respondent had to have a person put a new ignition in the truck According to Bradley Bittner also said Bradley was being fired be cause he did not come in to work that day Bradley al legedly explained that he was sick According to Brad ley, Bittner then stated again that it did not make any difference, that Bradley was terminated and that was the way it was On direct examination the General Counsel did not ask Bradley whether he had lied to Respondent about being sick In fact I had the distinct impression that that subject was studiously avoided On cross examination Bradley claimed that he was sick and in fact had not gone to Respondents premises I do not credit Bradley Further, I find Bittner s version of the conversation with Bradley when Bradley was discharged to be more 880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD straightforward and reliable Bittner testified simply that he was told by Russel to dismiss Bradley for lying and that's what I told him Mr Bradley, you re being dis missed for lying "' The General Counsel presented evidence that some time prior to 20 September , employee Franklin had taken truck keys home with him and had failed to report to work the next day As a result , employee Flanagan had to replace the ignition switch in Franklin 's truck The General Counsel notes that no discipline was taken against Franklin and argues that this is evidence of dis parate and discriminatory treatment of Bradley I find this argument unconvincing , however, because I believe it attempts to blur the real reason for Bradley s dis charge There is no question that Respondent learned of Bradley's union association through employee Schumpf The General Counsel has even presented some limited evidence of animus What the General Counsel has failed to show, however, is that Bradley s discharge was dis parate or discriminatory Bradley was not discharged simply because he had taken home keys to one of Re spondent s trucks Rather, he had taken them home, called in sick the following day, and refused to bring the keys to Respondents premises because he claimed to be too sick to do so Whether Bradley was sick or not he refused to bring in the truck keys because he was sup posedly too sick to do so Nevertheless, he was seen a short time later in front of one of Respondents facilities Bradley lied to Respondent , if not about being sick, then most certainly about being too sick to bring in the truck keys to Respondent The General Counsel has presented no evidence that any other employee has been allowed to lie in such a manner to Respondent without incident In short, the General Counsel has failed to carry its burden of establishing that Bradley was accorded dispar ate treatment Even if I were to infer such a conclusion, I would nevertheless find that Bradley would have been discharged under these circumstances without regard to his union activity I agree with Respondent that for some ulterior motive of his own, Bradley was simply trying to deprive Respondent of the use of one of its bulk delivery trucks I am convinced that Respondent would not have tolerated such conduct under any circumstances I find that Bradley was discharged for cause and I shall dis miss the allegation in the complaint that he was dis charged in violation of Section 8(a)(1) and (3) of the Act F The Unilateral Change in Health Benefits At the last bargaining session between the parties before the strike began , Respondent's final offer included the prior contract's health benefit plan When the strike started on 3 February the parties indefinitely postponed further negotiations By the time the Union made its un conditional offer to return to work on 15 April, Re spondent had hired permanent replacements for 11 of 15 positions left vacant by the strike Eight months after the strike started by letter dated 10 October 1983 Respond ent amended its last offer The welfare and pension pro vision of Respondent's final offer was amended to pro vide that Respondent would agree to cover employees as participants in a company sponsored profit sharing plan The health benefits section of Respondents final offer was amended to provide that Respondent would agree to cover employees in a company sponsored employee health benefits plan The letter ended by stating that unless Respondent was advised that the Union wished to negotiate further, it was Respondent's intention to take the necessary action to cover employees in the bargain ing unit on 17 October Respondent stated Such action if taken, will be effective for the plan year commencing April 1, 1983 The Union did request negotiations in response to Re spondent s letter, and the parties met twice during Octo ber 1983 to discuss this matter Discussions were limited to Respondent's proposal to cover employees by its own health benefits plan There was no objection by the Union and no discussion concerning the inclusion of em ployees in Respondents profit sharing plan The first meeting to discuss health benefits was held at the University Club at Hofstra University At this meet ing, Respondent discussed with the Union a two page document summarizing the benefits that would be pro vided to employees This document reflects the various coverages, deductibles, and coinsurance factors There is no indication that the Union objected to, or proposed al ternatives to, Respondent's substantive coverage At the first meeting, however, the Union did request figures concerning the cost of the proposed plan to Respondent A second meeting was held between the parties on 20 October 1983 at the Howard Johnson s restaurant in Sun nyside, Queens Kendrick testified that at the second meeting, Respondent continued to fail to provide cost figures Respondent's counsel, Shientag, also testified concerning that meeting Shientag testified that at this second meeting he orally provided the cost information concerning the new plan I credit Shientag As the Gen eral Counsel notes Shientag admits that he did not pro vide the costs of the then current plan to the Union at this second meeting There is no indication, however, that the Union ever specifically requested Respondent to provide it with the cost of the current plan Nor was there any particular reason for the Union to do so be cause that information was already available to both it and Respondent The General Counsel concedes that at this second meeting the Union refused to agree to Respondents pro posal concerning health benefits Kendrick described the conclusion of the meeting as follows It didn t end on a happy note It warn t really like a negotiation it was this is what I'm going to do, take it or leave it ' Shientag, however, paints a much different picture of the parties final positions As I have noted, Shientag testified that at the meeting on 20 October he verbally provided the Union with the requested cost information I credit Shientag According to Shientag, Respondents position at the meeting of 20 October was that the Company was willing to consider any plan the Union might come up with for which the cost would be less than the one then in effect Shientag asked the Union if they had anything like that to propose, and the Union replied no Accord ing to Shientag, the meeting ended by the Union stating that it objected to Respondent instituting its proposal Shientag replied that because the Union had not come up GLOVER BOTTLED GAS CORP with anything better, Respondent intended to institute its proposal immediately The meeting then ended I found Shientag's testimony about this meeting to be candid, and I credit Shientag Following the meeting , Respondent implemented its proposal regarding both the profit shar ing plan and the employee health benefits plan The General Counsel contends that Respondent imple mented the health benefits plan unilaterally The General Counsel argues that implementation was unlawful be cause the parties had not reached a genuine impasse since Respondent refused to provide requested informa tion concerning the cost of the plan I credit Shientag, however, that he provided the requested information orally at the meeting on 20 October When the Union struck on 3 February, the parties were at an impasse con ceming the terms of a new collective bargaining agree ment There is no indication that when Respondent amended its final offer in October 1983 regarding the employee health benefits plan that it did so in bad faith or to otherwise frustrate an agreement The General Counsel apparently concedes that it was not per se un lawful for Respondent to amend its substantive contract proposals During October 1983 the parties held two bar gaining sessions at which the only subject of discussion was Respondents amended health benefits proposal During the second meeting Respondent offered to con sider any alternative plan the Union might wish to pro pose that would lower the cost of health benefits to Re spondent The Union stated that it had no proposal to make, but that it objected to Respondents proposed plan Under the circumstances, including the fact that the Union did not have any proposal to make to Respondent, I find that the parties had in fact reached impasse Ac cordingly, I find that Respondent's implementation of its proposal was not unlawful , and I shall dismiss that alle gation of the complaint G Vacation Pay Employees Estes and Dean were reinstated on 29 July and 1 September 1983, respectively Employee Harry Serres was recalled during the payroll period ending 29 October 1983 During November 1983 Serres was forced to take 2 days off from work because of his fa ther's death Although the expired collective bargaining agreement provided for bereavement pay, and although Respondent never proposed to change that portion of the contract, Respondent never paid Serres for the 2 days of bereavement pay After Estes Dean, and finally Series were reinstated, Respondent also failed to pay them vacation pay for cal endar year 1983 which was provided for in the expired collective bargaining agreement The expired collective bargaining agreement contained a lengthy section comprised of 11 subsections dealing ex clusively with vacations These subsections relate to posting of vacation schedules, vacation periods, and split ting of vacations One subsection provides, The pay for vacations shall be made in advance and shall be based on the classifications of work performed for the major por tion of the yearly vacation qualifying period Another subsection provides, The qualifying period for vacations shall be April 1 to March 31, of each year 881 Respondent admits that it has refused to pay Estes, Dean, Series, and other reinstated strikers any vacation pay for calendar year 1983 Simply stated , Respondents defense is that employees were on strike on March 31 in stead of working, and are therefore not entitled to vaca tion pay According to Respondent , the interpretation to be given the most recently expired contract is that an employee must work continuously from April 1 to March 31 to be eligible to receive vacation pay Re spondent contends that employees on strike on March 31 were not on Respondents payroll and thereby voluntan ly waived or lost their eligibility to receive vacation pay At the trial, Respondents counsel stated Unfortunately, these gentlemen went on strike-un fortunately for them from our point of view, on February 3, 1983 and remained on strike until-the middle of April 1983 and therefore were not enti tled to any vacation during 1983 Employee Ralph Kendrick testified credibly and with out contradiction that while employed by Respondent he had occasion 1 year to miss approximately 7 consecutive weeks of work due to illness, but that he nevertheless re ceived full vacation pay Kendrick and other employees all testified that they knew of no policy penalizing em ployees for missing various periods of work during the ` qualifying period" provided in the contract In response to this testimony, Respondent's counsel stated at the trial The thing that is important is the existence of the person as an active employee When I say "active," I mean one who is there and ready, willing and able to work, if in fact he s prevented from working by the fact that he has a running nose on March 31st or a broken hand, would not-we would not be taking the position that he would be disqualified, but if he is voluntarily absent from work without an excuse for it we would take the position that he is disqualified from earning his vacation and then that would also assume that he had a year s service or more of continuous service during-occurring during the preceding year The evidence on this issue leaves no room for doubt that Respondent purposely denied striking employees va cation pay to penalize them for having exercised Section 7 rights by engaging in a strike There is nothing in the most recently expired collective bargaining agreement that specifies 31 March as a magic date for determining an employees eligibility for vacation pay The qualifying period is a 12 month year from 1 April to 31 March One of the most simple and straightforward principles of the Act is that striking employees nevertheless remain em ployees and for Respondent to argue that striking em ployees are not on its payroll is to equate them with dis charged or otherwise terminated employees To deny sinkers benefits that Respondent would make available to other employees not actively working such as em ployees on sick leave is necessarily to discriminate against them for having engaged in activity protected by 882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Act and is inherently destructive of Section 7 rights of employees. Accordingly, I find that by unilaterally and discriminatorily withholding bereavement pay and vacation pay from strikers, Respondent has unlawfully discriminated against them in violation of Section 8(a)(1) and (3) of the Act and has unilaterally abrogated the terms and conditions of their employment in violation of Section 8(a)(1) and (5) of the Act. Electro Vector, Inc., 220 NLRB 445 (1975); Cutten Supermarket, 220 NLRB 507, 510 (1975). H. The Discharge of Ralph Kendrick In July 1982, about 2 weeks before the expiration of the most recent collective-bargaining agreement between the parties, a theft of cash and checks occurred at Re- spondent's Glover facility. Five employees were request- ed by Respondent to take a polygraph examination con- cerning the theft. Two employees did so. Three did not. The three who did not, Ralph Kendrick, William Kampe, and Walter Brackett, were discharged. Thereaf- ter, protracted litigation ensued concerning the arbitrabi- lity of the discharges and the power of an arbitrator to award reinstatement for a period of time subsequent to the expiration of the collective-bargaining agreement. Ul- timately, the court of appeals held that because the theft had occurred prior to the expiration date of the collec- tive-bargaining agreement , the discharges that occurred subsequent to the expiration of the agreement were nev- ertheless arbitrable and that reinstatement, if appropriate, could be awarded for a period of time subsequent to the expiration of the agreement. Respondent and the Union then arbitrated the matter of the discharges themselves. The arbitrator found that requiring Kendrick, Kampe, and Brackett to take a poly- graph test administered by police violated their constitu- tional rights and that their discharges for refusing to take such a test were improper. The arbitrator ordered that Kendrick, Kampe, and Brackett be reinstated. The court of appeals refused to disturb the arbitrator's award. Throughout all the negotiating sessions that preceded the strike in February 1983, the Union demanded a con- tractual provision that no employee would be required to take any form of polygraph test as a condition of em- ployment. Respondent uniformally rejected that demand. Respondent took the position that it would require such tests if and when it desired to do so. On 4 June 1984, Respondent reinstated Kendrick pur- suant to the arbitrator's award. By letter dated 6 June 1984, Respondent wrote to the Union: Please be advised that, unless we are advised by you prior thereto that you wish to negotiate on the matter, Synergy Gas Corporation (formerly known as Glover Bottled Gas Corp.) will, effective June 18, 1984, adopt the following policy. Any employee shall, upon request of his superior or any manager or officer of the company, submit to a polygraph examination (i.e. lie detec- tor) test with reference to the employee's use, misuse, handling, mishandling, embezzlement, misappropriation or other misconduct or conduct concerning the company's money, property or equipment. The failure or refusal of the employee to submit to such test as and when requested shall result in an immediate discharge. Please be advised further that the foregoing policy will be incorporated into the terms of any collective bargaining agreement which the company may negotiate and if such agreement contains a pro- vision for arbitration of grievances, the following provisions will be added to the appropriate sections, to wit: A discharge for failure to submit to a polygraph test as required hereunder or based upon the re- sults thereof shall not be subject to arbitration. The Union requested to negotiate with Respondent about the matter of polygraph examinations, and a meet- ing was arranged for 27 June. On 19 June Plant Manager Bittner informed Kendrick that he was being scheduled to take a polygraph examination. Kendrick advised Bittner that he would not provide an answer whether he would take the polygraph examination until after the meeting between Respondent and the Union scheduled for 27 June. A meeting between Respondent and the Union was held on 27 June as scheduled. The issue of polygraph tests was the only issue discussed at this meeting. Re- spondent's position remained fixed throughout this meet- ing. Respondent insisted that its policy as stated in the letter of 6 June be implemented, and that it would agree to no other alternative. Respondent concedes that at this meeting, the Union made a number of proposals regard- ing the administration of such a test, including the sub- mission of questions by the Union, presence of counsel, and arbitration of discharges resulting from the test. The Union, in fact, offered to agree to the administration of such tests if certain issues arising thereunder and the re- sults of the test were arbitrable. As Respondent concedes in its posttrial brief: "The Company refused to permit any form of participation in the administration of the test or to accede to any arbitration regarding discharges aris- ing out of the tests or refusal to take the test, other than to permit the Union to suggest the names of testing agen- cies for consideration by the Company without any obli- gation to employ them." Respondent then announced that it intended to implement its polygraph policy the following day, and the meeting ended. After the meeting, the Union suggested to Kendrick that he prepare and carry with him a written response declining to take a polygraph examination so that when Respondent made such a demand of Kendrick, his reply would be ready. A hearing before the Board involving these same par- ties was scheduled to be held in Cases 29-RC-6037 and 29-UC-240 on 11 July 1984. In late June, the Union's counsel told Kendrick about the scheduled hearing and asked Kendrick if he would be willing to attend. On 28 June, Kendrick told Bittner that he would be absent from work on 11 July because of the hearing, and Ken- drick wrote a note on Bittner's calandar that he would miss work that day. At the time, Bittner simply said okay. GLOVER BOTTLED GAS CORP 883 On 10 July, Bittner approached Kendrick about Ken duck missing work the next day Bittner told Kendrick that John Vogel had stated he wanted Kendrick to come to work on 11 July and that unless Kendrick had a sub poena to appear at the Board hearing on 11 July Ken dnck would be suspended for the rest of the week with out pay if he should miss work Kendrick told Bittner that he did not have a subpoena at the time, that there might be one waiting for him at home in the mailbox, but that subpoena or no subpoena, he was going to be at the Board hearing the following day Bittner telephoned Vogel While Bittner spoke to Vogel Bittner turned to Kendrick and asked, John Vogel wants to know if you enjoy working for this company?' Kendrick replied that he loved working for Respondent and that is why he re turned to work when he was offered reinstatement Bittner repeated Kendrick's reply to Vogel Bittner then asked Kendrick, Then John wants to know why you insist upon going to the Board? Kendrick responded that he also loved his Union and if they wanted him to go to the Board hearing that s where he was going to be Bittner repeated this to Vogel, then listened for a few moments, and hung up Bittner then told Kendrick, You have a way of getting this guy crazy A few moments later, while Kendrick was still talking to Bittner, Bittner received another call from Vogel Bittner then told Kendrick John wants you to go to this executive security consultant company on Thursday (July 12) and take a polygraph test Kendrick replied that was a silly suggestion because Kendrick was going to be at the Board hearing on I 1 July and he had already been told he would be suspended for the rest of the week Kendrick stated he did not think Respondent could tell him what he had to do while he was suspend ed Bittner replied, Well, I in just passing the informs tion along Kendrick then gave Bittner the reply, which he had prepared earlier, declining to take the polygraph test Bittner then made a phone call, read Kendrick s reply over the phone and hung up A few moments later, the telephone rang Bittner answered it by saying, `Hello, Mr Shientag " Bittner then began writing some thing on a small piece of paper which ultimately turned out to be Kendrick s discharge slip This states By reason of your written refusal dated 7-10-84 to take the polygraph test scheduled for July 12 1984 as instructed, you are hereby discharged The General Counsel contends that Respondent acted unlawfully by unilaterally instituting its polygraph policy and by discharging Kendrick pursuant to such an unlaw fully instituted policy The General Counsel also argues that Kendrick was discharged discriminatorily in viola tion of Section 8(a)(4) of the Act because of Kendrick's participation in a Board proceeding Respondent argues that its polygraph policy was not instituted unilaterally but rather after bargaining with the Union to impasse about such a policy Respondent also denies that Ken dnck s participation in the Board proceeding scheduled for 11 July, had anything to do with his discharge The record convinces me that Respondent did institute its polygraph policy unlawfully and that it discharged Kendrick for a dual unlawful motive to enforce its un lawfully instituted policy and to retaliate against Ken drick for participating in a Board proceeding scheduled for 11 July After being ordered by an arbitrator to rein state Kendrick Respondent demanded a contractual pro vision so broad in scope that it would allow Respondent to require employees to subject themselves to polygraph examinations on demand Refusal to submit to a poly graph test would result in immediate discharge Even more significant, however, was Respondent s demand that a discharge for refusing to submit to the test or based upon the results thereof' would not be subject to arbitration It is apparent from what transpired at the meeting on 27 June that Respondent met with the Union solely for appearance sake and that it never bargained with the Union about this demand with an open mind Respondent refused to consider or even discuss reasona ble suggestions made by the Union regarding the policy Respondent clung steadfastly with a fixed position to its demand that any discharge resulting from a polygraph examination not be subject to arbitration Respondent s demand effectively required the Union to give up any right to represent discharged employees or to seek effec tive remedy for an employee wrongfully discharged pur suant to a polygraph examination Respondent's position was so inherently objectionable that it was necessarily designed to frustrate the parties ever reaching agreement on the polygraph issue Further, it is apparent that Re spondent s demand on the polygraph issue was not made in good faith, but rather was designed to frustrate the earlier decision of the court of appeals and the arbitrator who ordered that Kendrick be reinstated I find that Re spondent s position on the issue of polygraph examina tions and its pro forma negotiations with the Union on this subject evidence bad faith No good faith bargaining every took place on the issue of polygraph examinations Thus there was no good faith impasse that might allow Respondent to institute such a policy, and I find that by instituting its polygraph policy, Respondent did so in violation of Section 8(a)(1) and (5) of the Act Concerning Kendrick s discharge on 10 July 1984, it is obvious that what precipitated his discharge was Ken deck's conversation with Bittner on that day Bittner first informed Kendrick that if Kendrick appeared at a Board hearing scheduled for the following day without having been subpoenaed Kendrick would be suspended for the rest of the week Kendrick told Bittner that he would be going to the hearing whether or not he had a subpoena Bittner telephoned John Vogel to inform Vogel of Kendrick s position Vogel through Bittner, asked Kendrick if he enjoyed working for Respondent and why he insisted on going to the Board When Ken thick answered that he not only loved working for Re spondent but loved his Union as well, Vogel became angry A few minutes later, Vogel telephoned Bittner with the demand that Kendrick submit to a polygraph examination on 12 July, the day after the scheduled Board hearing Respondent was countering Kendrick's willingness to participate in a Board hearing on behalf of the Union with a demand that he submit to a polygraph examination Kendrick had once before refused to submit 884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to Respondents demand for a polygraph examination and this is precisely what resulted in his earlier dis charge Respondent's demand that Kendnck submit to a polygraph examination on 12 July was simply a ploy by Respondent to force Kendrick s refusal and thereby put Respondent in a position of being able to discharge Ken duck for refusing to take the examination In reality, Re spondent s actions were in response to Kendnck agreeing to support the Union by participating in and giving testi mony at a Board hearing to be conducted 11 July I find that Kendnck was discharged pursuant to Respondent s polygraph examination policy, which was instituted un lawfully in violation of Section 8(a)(1) and (5) of the Act I also find that Respondent discharged Kendnck to retaliate against him for agreeing to give testimony before the Board and that his discharge violated Section 8(a)(1) and (4) of the Act as well I The Refusal to Bargain After 27 June 1984, when the parties met to negotiate concerning Respondent's polygraph policy, neither the Union nor Respondent made any request for bargaining until 9 April 1986 On 9 April, approximately 1 month before the trial began in these cases the Union wrote Respondent requesting it to meet and negotiate with re spect to a collective bargaining agreement covering the drivers, platform men and servicemen at the former Glover facilities now operated by Synergy Gas Corpora tion Respondent made no response to this request for bargaining On 1 July 1986, the Unions attorney, Franklin K Moss, wrote Daniel Shientag, Respondents attorney, re questing the names and addresses of each of the Syner gy employees in the bargaining units represented by [the Union] " Shientag did not respond to Moss letter and on 8 August 1986 Moss again wrote to Shientag stating Synergy has repeatedly refused to comply with demands to bargain and relevant requests for infor mation with respect to both the office clerical unit and the driver serviceman unit with respect to whose employees Local 282 is the certified collec tive bargaining representative If we do not hear from Synergy immediately, we intend to file refusal to bargain charges with the NLRB Shientag did not answer Moss letter of 8 August, and on 26 September 1986 the Union filed its charge in Case 29- CA-12653 1 Respondent admits that it did not respond to the Union s request for bargaining or request for the names and addresses of unit employees In its answer to the ' On 19 August 1986 the Union filed a charge in Case 29-CA-12585 alleging that Respondent violated Section 8(a)(1) and (5) of the Act by failing and refusing to provide the Union with the names and addresses of employees in a unit of Respondents clerical employees represented by the Union Complaint issued and Respondent filed an answer denying that the Union requested it to bargain or to provide the Union with the names and addresses of unit employees Thereafter the General Counsel filed a Motion for Summary Judgment and on 17 April 1987 the Board issued a decision Glover Bottled Gas Corp 283 NLRB 656 (1987) finding that Respondent violated Sec 8(a)(1) and (5) of the Act as alleged complaint in Case 29-CA-12653, Respondent alleges cer tarn affirmative defenses that Respondent had objective considerations that the Union did not represent a maton ty of bargaining unit employees that changes in the em ployee complement relieved Respondent of any bargain mg obligation, and that the complaint is untimely and barred by Section 10(b) of the Act At the hearing and in its posttnal brief, Respondent also contended that the complaint was barred and should be dismissed in accord with Jefferson Chemical Co, 200 NLRB 992 (1972) I reject Respondents argument that the complaint should be dismissed based on Jefferson Chemical Co supra, because I find that case altogether different from the one at hand In Jefferson Chemical a broad Section 8(a)(1) and (5) refusal to bargain charge was filed with the Board Thereafter a complaint issued and a hearing was held before an administrative law judge At the hearing, the judge asked the General Counsel if he in tended to amend or expand the complaint in any way The General Counsel assured the judge and Respondent that it did not intend to do so Thereafter, a new charge was filed and a complaint issued alleging general bad faith bargaining by Respondent based on facts that oc curred prior to the General Counsels disavowal of any contention that Respondent had engaged in general bad faith bargaining The Board dismissed the latter com plaint, stating Our dissenting colleagues argued that the General Counsel should not be required to be aware of each and every fact giving rise to a possible unfair labor practice prior to the issuance of a complaint since its investigation is normally limited to the allega tions set forth in the charge While we do not dis agree with this principle, we believe that as a cor ollary, the General Counsel is dutybound to investi gate all matters which are encompassed by the charge, and to proceed appropriately thereafter The complaint herein is based on a request for bargain ing made by letter dated 9 April 1986 approximately 1 month before the trial began in this case, and on requests for information made by letters dated 1 July and 8 August 1986 weeks after the original trial was closed In response to the Union s written request for bargaining dated 9 April Respondent did not respond by denying the request or affirmatively setting forth any good faith doubt of the Union representing a majority of employees In fact Respondent did not respond at all to the Union s request for bargaining Although Respondent could easily have responded to the Union s request in such a manner as to affirmatively join issue with its obligation to bargain prior to the commencement of the trial on 13 May 1986 Respondent remained silent Although from hindsight we now know that Respondents refusal to bar gain predated the beginning of the trial, when the trial began the Union was not acting unreasonably in waiting to file a charge by giving Respondent ample time to re spond to its request for bargaining This case is therefore distinguishable from Jefferson Chemical Co, supra, and Union Electric Co 219 NLRB 1081 (1975), also cited by Respondent, in two significant respects First not all the GLOVER BOTTLED GAS CORP 885 facts supporting the allegations in the complaint oc curred prior to the commencement of the trial Second as a result of Respondents own silence, Respondents re fusal to recognize and bargain with the Union had not been made clear, pnor to the commencement of the trial Accordingly, I reject Respondents argument that the complaint should be dismissed on these grounds I also reject Respondents argument that the complaint should be dismissed because it is untimely filed and barred by Section 10(b) of the Act In support of this ar gument, Respondent attempted to prove through its counsel, Daniel Shientag, that Respondent actually with drew recognition from and refused to bargain with the Union beginning in January 1986 In October 1985 and January 1986, Respondent and the Union were involved in an arbitration proceeding During the course of one of the arbitration hearings in January 1986, Shientag and Moss, the Union s attorney, held a private conversation to discuss possible settlement of the arbitration proceed ing Although Respondent's changes in employee bene fits were not the topic of the arbitration proceeding, Moss made a remark during the conversation concerning the changes, which are the subject of this case Moss stated, inter alia, that Respondent was obligated to bar gain over these changes Shientag testified I told [Moss] that they had not requested any bar gaining sessions since the strike , that the only people who had done anything about bargaining was us, that all of the people who had been there at the time of the strike had been replaced and at that time, there were only three that I knew of who had been rehired, all the rest were replacements or had come in there by way of turnover and I just didn t believe that they represented the people in the place anymore Respondent argues that Shientag's statement to Moss constituted an unequivocal withdrawal of recognition in January 1986 and that the complaint in Case 29-CA- 12653 is therefore barred by Section 10(b) of the Act I reject Respondents argument that Shientag s statement constituted an unequivocal withdrawal of recognition The purpose of the discussion between Shientag and Moss on this occasion in January 1986 was not to bar gain over Respondents changes in employee benefits or any other working conditions of employees The purpose of the conversation was to discuss the possible settlement of a specific arbitration proceeding Nor was there any pending request by the Union that Respondent meet and bargain Further, the Union had no reason to view Shientag s statement as anything other than a matter of opinion since Respondent itself had notified the Union and offered to bargain concerning the proposed changes in its employee benefits plan I am convinced that in these circumstances Shientag's statement was both in tended by him and received by Moss as purely a matter of Shientag s personal opinion The exchange was noth ing more than a parting salvo between two bantering lawyers who had not been able to settle the arbitration dispute Shientag, who is an articulate and experienced labor attorney did not state that Respondent was with drawing recognition from the Union If Shientag had wished to communicate a withdrawal of recognition, there is no question in my mind that he would have done so in exactly those terms Accordingly , I find that Re spondent did not clearly withdraw recognition from the Union in January 1986 in such a manner as to bar the instant complaint pursuant to Section 10(b) of the Act Moreover, I find that even if Respondent had attempted to withdraw recognition from the Union in January 1986, it is prevented from doing so by its earlier and yet unremedied unfair labor practices, including its failure to offer reinstatement to a majority of the economic strikers who made unconditional offers of reinstatements and its bad faith bargaining with the Union concerning its poly graph examination policy An employer may not justify a refusal to bargain premised on a union s loss of majority support attributable to the employers own unfair labor practices I also reject Respondents contention that it was privi leged to reject the Union s request for bargaining and for information about the names and addresses of employees in the bargaining unit because Respondent had objective considerations for believing that the Union did not repre sent a majority of employees in the unit It is well settled that an incumbent union enjoys a rebuttable presumption of continued majority status on the expiration of a col lective bargaining agreement An employer may lawfully refuse to bargain with an incumbent union only when it can establish either that at the time of the refusal to bar gain, the Union in fact no longer enjoyed majority status or that its refusal to bargain was predicated on a good faith and reasonably grounded doubt of the Union's con tinued majority status Terrell Machine Co 173 NLRB 1480 (1969), enfd 427 F 2d 1088 (4th Cir 1970) Respondents admitted failure to bargain with or pro vide relevant information to the Union constitutes a prima facie violation of Section 8(a)(5) of the Act Re spondent bears the burden of establishing an affirmative defense to its failure to bargain Respondent contends that it had objective considerations from which to form a reasonable doubt of the Union s majority status based on three factors the Union had not requested bargaining for almost 2 years only three strikers were employed in the bargaining unit and there had been a significant turnover in the bargaining unit The lapse in time from the meet ing between the parties on 27 June 1984 to the Union s request for bargaining on 9 April 1986 is not itself par ticularly significant In its posttrial brief, Respondent as serts in essence that the Union simply should not be al lowed to continue its claim to represent employees after a significant hiatus in bargaining Respondent is in no po sition to seriously argue that the Union abandoned, or gave Respondent the impression that it had abandoned, its claim to represent unit employees throughout that period The Union had been actively and vigorously pur suing the numerous unfair labor practice charges cap tioned above Substantial delays occurred while these cases were postponed indefinitely as a result of protract ed litigation between the parties on related issues before the Federal courts and, later, before an arbitrator The lapse of time during which the Union did not specifically 886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD request Respondent to resume contract negotiations is therefore no indication that the Union did not claim to represent or in fact represent Respondents employees Respondent next argues that it experienced expansion and massive turnover in the bargaining unit since the 1983 strike so as to give Respondent good reason for doubting whether the Union continued to represent a majority of employees in the unit In support of its pose tion, Respondent notes that 11 striking employees were displaced by permanent replacements Near the end of 1983 Respondents Deer Park office closed and 7 em ployees were transferred to the Patchogue facility, there by expanding the bargaining unit to 22 employees Be tween February 1983 and January 1986, a total of 39 in dividuals were employed by Respondent, representing a significant turnover rate By January 1986, the bargain ing unit consisted of 25 employees, only 3 of whom were employed prior to the strike Respondent concludes its argument by noting, To Respondent's knowledge, not one of the employees was a union member 2 At the hearing, the parties stipulated that when the Deer Park office closed and certain employees were transferred to the Patchogue facility, the transferred em ployees constituted an accretion to the bargaining unit at Patchogue represented by the Union In such accretion situations, there is no reason not to believe that employ ees accreted to the already existing unit do not favor representation in the same degree as employees already in the unit Therefore, there is no reason to believe that as a result of the unit expanding a majority of employees no longer wished to be represented by the Union Rather, there is every reason to believe that the Union s majority status continued I also find both the number of permanent replacements hired and the turnover in the bargaining unit between 1983 and 1986 to be insufficient reasons for finding that Respondent entertained a good faith doubt of the Union's continues majority status The Board recently stated that it cannot ascertain strike re placements union sentiments merely from their having crossed a picket line Station KKHI, 284 NLRB 1339 (1987) The Board is unwilling to presume the union sen timents of strike replacements and an employer is re quired to present further evidence to support a claimed good faith doubt Moreover, turnover does not constitute sufficient objective considerations to justify a withdrawal of recognition Even if employee turnover was a significant consider ation in determining whether an employer had an objec tive basis for forming a reasonable doubt of a union s continued majority status I would find in this case that because of the numerous unfair labor practices Respond ent has been found to have engaged in by not offering available positions to strikers after they made an uncon ditional offer to return to work Respondent is precluded from relying on these factors as a basis for its alleged ob jective considerations If Respondent had offered avail able positions to strikers after they made their uncondi tional offer to return to work there is every reason to 2 Respondent does not reveal whether it had any actual knowledge of employees union membership what that knowledge might be or how it might have obtained that knowledge believe that in January 1986 all strikers would have been reinstated and would have comprised an actual majority of the appropriate bargaining unit Respondents own unfair labor practices in not offering strikers positions as they became available is the very basis on which Re spondent is now able to contend that significant turnover occurred in the bargaining unit For the reasons stated above, I reject Respondents arguments that it had a suf ficient objective basis to form a reasonable doubt of the Union s continued majority status Accordingly, I find that by failing and refusing to recognize and bargain with the Union as the representative of its employees be ginning 9 April 1986 and by failing and refusing to fur nish the Union with the names and addresses of bargain ing unit employees beginning 1 July 1986, Respondent has violated Section 8(a)(1) and (5) of the Act CONCLUSIONS OF LAW 1 Respondent Glover Bottled Gas Corp, Vogel s Inc, New York Propane Corp, Synergy Group, Inc, and Synergy Gas Corp comprise a single integrated en terpnse and a single employer within the meaning of the Act, and are now, and have been at all times material, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America is and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act 3 By failing to offer available positions to stikers who made an unconditional offer to return to work, by using employees of sister companies to perform bargaining unit work to avoid recalling strikers, and by hiring new em ployees without offering those positions to strikers Re spondent violated Section 8(a)(1) and (3) of the Act 4 By purposely attempting to humble employees Gary Estes and Richard Dean by treating them as new em ployees when they were finally recalled to work, and by making them perform yard work for a month before re assigning them to normal duties Respondent discriminat ed against Estes and Dean and thereby violated Section 8(a)(1) and (3) of the Act 5 Respondent did not discriminate against employees Estes and Dean regarding the assignment of overtime work following their reinstatement but rather assigned them overtime in general conformity with its contractual proposal that overtime work be assigned equitably and without regard to seniority and Respondent did not thereby discriminate against Estes and Dean in violation of Section 8(a)(1) and (3) of the Act 6 Respondent discharged employee Robert Bradley for cause and not because of his activities on behalf of, or support for, the Union, and by discharging Bradley Respondent did not thereby violate Section 8(a)(1) and (3) of the Act 7 By Respondent implementing its proposed health benefits plan after bargaining with the Union to impasse Respondent did not violate Section 8(a)(1) and (5) of the Act 8 By unilaterally and discnminatonly withholding be reavement pay and vacation pay from strikers Respond GLOVER BOTTLED GAS CORP ent unilaterally abrogated the terms and conditions of their employment and discriminated against them in vio lation of Section 8(a)(1), (3), and (5) of the Act 9 By instituting its polygraph policy after bargaining in bad faith with the Union, Respondent violated Section 8(a)(1) and (5) of the Act 10 By discharging Union Steward Ralph Kendrick pursuant to Respondents unlawfully instituted polygraph examination policy and in order to retaliate against Ken duck for agreeing to give testimony before the Board, Respondent violated Section 8(a)(1), (4), and (5) of the Act 11 By failing and refusing to recognize and bargain with the Union as the exclusive representative of Re spondent s employees employed at out of, or dispatched from its Patchogue facility, including, drivers, platform men and servicemen, and by failing and refusing to pro vide the Union with the names and addresses of employ ees in the appropriate collective bargaining unit, Re spondent violated Section 8(a)(1) and (5) of the Act 12 The unfair labor practices which Respondent has been found to have engaged in, as described above, have a close, intimate, and substantial relationship to trade, traffic and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce within the mean ing of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1), (3), (4) and (5) of the Act, I shall recommend that it be or derd to cease and desist thereform and to take certain affirmative action designed to effectuate the policies of the Act On these findings of fact and conclusions of law and on the entire record , I issue the following recommend ed3 ORDER The Respondent, Glover Bottled Gas Corp Patcho gue New York Vogel's, Inc, Farmingdale, New York New York Propane Corp, Farmingdale, New York, Synergy Group, Inc Farmingdale New York, Synergy Gas Corp, Deer Park, New York, its officers agents successors, and assigns, shall 1 Cease and desist from (a) Failing to offer available positions to strikers who made an unconditional offer to return to work, using em ployees of sister companies to perform bargaining unit work to avoid recalling strikers, and hiring new employ ees without offering those positions to strikers (b) Treating strikers as new employees when they are recalled to work by making them perform yard work before reassigning them to normal duties 8 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the fmdmgs conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses 887 (c) Unilaterally and/or discriminatorily withholding bereavement pay and vacation pay from strikers (d) Instituting any polygraph policy without first bar gaining in good faith to impasse with Local 282, Interna tional Brotherhood of Teamsters, Chauffeurs Ware housemen and Helpers of America as the representative of its employees (e) Discharging employees pursuant to its unlawfully instituted polygraph examination policy and/or in order to retaliate against employees for agreeing to give testi mony before the Board (f) Failing and refusing to recognize and bargain with the Union as the exclusive representative of Respond ent's employees employed at, out of, or dispatched from its Patchogue facility, including drivers, platform men and servicemen, and/or failing and refusing to provide the Union with the names and addresses of employees in the appropriate collective bargaining unit (g) In any like or related manner interfering with, re straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer striking employees who made an uncondi tional offer to return to work immediate and full rein statement to their former positions or, if those positions no longer exist, to substantially equivalent positions with out prejudice to their seniority and other rights and privileges, discharging if necessary employees of Re spondent s sister companies who have been used to per form unit work to avoid recalling strikers and new em ployees who have been hired by Respondent since 15 April 1983 (b) Offer Ralph Kendrick immediate and full reinstate ment to his former position or, if that position no longer exists, to a substantially equivalent position without prej udice to his seniority and other rights and privileges (c) Make whole Ralph Kendrick and striking employ ees who made an unconditional offer to return to work on 15 April 1983 for any loss of earnings or benifits they may have suffered by reason of the discrimination against them by paying them a sum of money equal to the amount they normally would have earned from the date of said discrimination to the date of Respondent s offer of reinstatement, less net interim earnings, with backpay to be computed in the manner prescribed in F W Woolworth Co, 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in New Hon zonsfor the Retarded 283 NLRB 1173 (1987) 4 (d) Remove from its files any reference to the unlaw ful discharge and notify the employee in writing that this has been done and that the discharge will not be used against him in any way * As noted in the body of this decision Respondents unlawful discrim mation against sinkers adversely affected a group or classcompnsed of all striking employees The record does not reflect the relative seniority of all sinkers and it is therefore not possible at this time to determine with certainty which sinkers should have been recalled to specific vacancies I shall therefore leave that determination to the compliance stage of this proceeding 888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (e) Make whole employees who have suffered any loss of bereavement pay or vacation pay as a result of Re spondent s unlawful actions (f) Withdraw and abandon its polygraph policy at least until such time as Respondent bargains in good faith to impasse on the subject with Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the representative of Re spondent s employees (g) Recognize and, on request, bargain with Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive representative of Respondents employees employed at, out of, or dispatched from its Patchogue facility, includ ing drivers, platform men and servicemen, excluding office clerical employees, guards and supervisors as de fined in the Act (h) Provide the Union with the names and addresses of employees in the collective bargaining unit described above (i) Preserve and on request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, time cards personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (l) Post at its Patchogue and Deer Park, New York, facilities copies of the attached notice marked Appen dix ' 5 Copies of said notices on forms provided by the Regional Director for Region 29, after being signed by Respondents representative shall be posted immediately on 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 Respondent to ensure that the notices are not altered, defaced or covered by any other material (k) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply 5If 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 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 or dered us to post and abide by this notice Section 7 of the National Labor Relations Act gives em ployees these rights To organize To form join or assist unions To bargain collectively through representatives of their own choice To act together for other mutual aid or protec tion To choose not to engage in any of these protect ed concerted activities WE WILL NOT fail to offer available positions to stnk ers who made an unconditional offer to return to work, use employees of sister companies to perform bargaining unit work in order to avoid recalling stnkers, or hire new employees without offering those positions to strik ers WE WILL NOT treat strikers as new employees when they are recalled to work by making them perform yard work before reassigning them to normal duties WE WILL NOT unilaterally and/or d iscriminatonly withhold bereavement pay or vacation pay from strikers WE WILL NOT institute any polygraph policy without first bargaining in good faith to impasse with Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the represent ative of our employees WE WILL NOT discharge employees pursuant to our unlawfully instituted polygraph examination policy and/or in order to retaliate against employees for agree ing to give testimony before the National Labor Rela tions Board WE WILL NOT fail and refuse to recognize and bargain with the Union as the exclusive representative of em ployees employed at, out of, or dispatched from our Pat chogue facility, including drivers, platform men and servicemen, and/or fail and refuse to provide the Union with the names and addresses of employees in the appro pnate collective bargaining unit WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercies of the rights guaranteed them in Section 7 of the Act WE WILL offer striking employees who made an un conditional offer to return to work immediate and full reinstatement to their former positions or if those post tions no longer exist, to substantially equivalent positions without prejudice to their seniority and other rights and privileges discharging if necessary employees of sister companies who have been used to perform unit work in order to avoid recalling strikers and new employees who have been hired since 15 April 1983 WE WILL offer Ralph Kendrick immediate and full re instatement to his former position or, if that position no longer exists to a substantially equivalent position with out prejudice to his seniority and other rights and pnvi leges WE WILL make whole Ralph Kendrick and striking employees who made an unconditional offer to return to work on 15 April 1983 for any loss of earnings or bene fits they may have suffered by reason of the discrimina tion against them by paying them a sum of money equal to the amount they normally would have earned from the date of said discrimination to the date of our offer of reinstatement less net interim earnings with appropriate interest GLOVER BOTTLED GAS CORP WE WILL remove from our files any reference to the discharge of Ralph Kendrick and notify him in writing that this has been done and that evidence of the unlawful discharge will not be used as a basis for future personnel actions against him WE WILL make whole employees who have suffered any loss of bereavement pay or vacation pay because of our unlawful actions WE WILL withdraw and abandon our polygraph policy at least until such time as we bargain in good faith to im passe on the subject with Local 282 , International Broth erhood of Teamsters, Chauffeurs, Warehousement and Helpers of America as the representative of our employ ees 889 WE WILL recognize and, on request, bargain with Local 282 International Brotherhood of Teamsters, Chauffeurs Warehousemen and Helpers of America as the exclusive representative of employees employed at out of, or dispatched from our Patchogue facility , includ ing drivers, platform men, and servicemen, excluding office clerical employees , guards, and supervisors as de fined in the Act WE WILL provide the Union with the names and ad dresses of employees in the collective bargaining unit de scribed above GLOVER BOTTLED GAS CORP , VOGEL S, INC, NEW YORK PROPANE CORP, SYNER GY GROUP, INC SYNERGY GAS CORP