Ghr Energy Corp.

GHR ENERGY CORP GHR Energy Corp . and Oil, Chemical and Atomic Workers International Union , and its Local 4- 447 and GHR Energy Corp . and TCP Construc- tion Co., Inc. and Oil, Chemical and Atomic Workers International Union , and its Local 4- 447. Cases 15-CA-7563, 15-CA-7655, 15-CA- 7708, 15-CA-7768, 15-CA-7836, 15-CA-7887, 15-CA-7951, and 15-CA-8088 June 13, 1989 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND DEVANEY On June 16, 1986, Administrative Law Judge Leonard M. Wagman issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel and the Charging Party each filed limited exceptions and a supporting brief, and the Respondent filed answering briefs.I The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions3 only to the extent consistent with this 'The Respondent has requested oral argument The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties See fn 22, infra 2 The General Counsel and the Respondent have excepted to some of the judge's credibility findings 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 We correct three inadvertent errors of the judge First, in the fourth from the last paragraph of sec III,B,2 of his decision the judge incorrect- ly referred to art XIII, sec 12 of the 1978 collective-bargaining agree- ment rather than to art XII, sec 13 Second, in the second from the last paragraph of the same section of his decision, the judge incorrectly re- ferred to art XX rather than to art XXV Third, the judge, notwith- standing his finding in sec III,I,1 of his decision, omitted the name of Martin L Ware from pars 2(a) and (b) of his recommended Order These inadvertent errors do not affect the conclusions reached in this case We note that the judge's findings, based on Meyers Industries, 268 NLRB 493 (1984) (Meyers I), remanded sub nom Prt!l v NLRB, 755 F 2d 941 (D C Cir 1985), about the presence or absence of concerted activi- ties are consistent with Meyers II, 281 NLRB 882 (1986), enfd sub nom Prill v NLRB, 835 F 2d 1481 (D C Cir 1987) Member Johansen, who did not participate in Meyers, agrees the activity was within Sec 7 Nei- ther the General Counsel nor the Charging Party excepted to the judge's dismissal of the allegations that the Respondent 's unilateral termination of the training and "breaker day" programs violated Sec 8(a)(5) of the Act ' In his decision and at par 9(1) of his Conclusions of Law, the judge finds, inter alia, that the Respondent violated Sec 8(a)(5) by unilaterally rescinding art XXXVI, sec 2 of the 1978 collective-bargaining agree- ment, under which a bargaining unit employee was entitled to union rep- resentation on request at any stage of the disciplinary procedure directed toward him, including the investigatory stage A rescission covering all situations to which this contractual provision might apply was not al- leged in the complaint The record evidence at most would support a finding that the Respondent breached art XXXVI, sec 2, on February 22, 1981, in setting the conditions under which employees were required 1011 Decision and Order, to modify the remedy,4 and to adopt the recommended Order as modified.5 1. The judge found that the Respondent violated Section 8(a)(3) of the Act by withholding contrac- tual sick leave benefits from two disabled employ- ees during the March 1-April 14, 1980 strike for the periods in which they were otherwise eligible for the benefits. In doing so, the judge relied on Emerson Electric Co., 246 NLRB 1143 (1979), and Conoco, Inc., 265 NLRB 819 (1982). In agreeing with the judge's finding, however, we rely on our decision in Texaco, Inc., 285 NLRB 241 (1987), which issued subsequent to the judge's decision, and which modified the applicable test. In Texaco, the Board held that the lawfulness of discontinuing benefit payments to disabled employ- ees on commencement of a strike will be resolved by application of the test set forth in NLRB v. Great Dane Trailers, 388 U.S. 26 (1967). Thus, the General Counsel can meet the Great Dane burden of showing an adverse effect on employee rights by showing that a benefit withheld because of a strike was an accrued benefit. At that point the employer may be able to defend its action by showing that it had a legitimate and substantial business justifica- tion for cutting off the benefits, such as an explicit waiver by the union or the employer's reliance on a nondiscriminatory contract interpretation that is reasonable and arguably correct. See Texaco, supra at 245-246. Applying these principles to the evidence in this case, we note with respect to the General Coun- sel's prima facie case that the Respondent does not challenge the judge's finding, fully supported by the record, that the benefits withheld from employ- ees Seals and Williams were accrued.6 Further, the Respondent offers no defense cognizable under Texaco. Accordingly, we agree with the judge that the Respondent violated Section 8(a)(3) of the Act by withholding sick leave benefits from employees Seals and Williams during the 1980 strike. to submit to a polygraph test In these circumstances, we find, contrary to the judge, that this issue has not been fully litigated Accordingly, we shall amend the judge's Conclusions of Law by deleting this portion of par 9(f) This deletion does not affect the validity of the judge's conclu- sions, discussed below, that other actions of the Respondent with respect to the polygraph program violated Sec 8(a)(5) and (1) 4 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set forth in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 US C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 5 In light of the record evidence that the Respondent closed its Good Hope, Louisiana facility in 1983, we modify the judge's recommended Order to require the mailing of copies of the notice to all unit employees employed at the time of closing 6 See sec 111,A, 1, especially fn 5, of the judge's decision 294 NLRB No. 76 1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. The judge found that the Respondent violated Section 8(a)(5) during the 1980 strike by not notify- ing the Union or offering to bargain over its deci- sion to enroll strike replacements in a health insur- ance program under terms different from those provided for in the expired contract.' We disagree. It is well settled that struck employers have no ob- ligation to bargain about employment terms for re- placements during the course of an economic strike. Capitol-Husting Co., 252 NLRB 43, 45 (1980), enfd. 671 F.2d 237 (7th Cir. 1982); Imperial Outdoor Advertising, 192 NLRB 1248,1249 (1979), enfd. 470 F.2d 484 (8th Cir. 1972).8 Accordingly, we shall dismiss this allegation. The judge also found that the Respondent violat- ed Section 8(a)(5) after the strike ended by creating a wage disparity between those replacements trans- ferred after the strike from operator' l to operator 2 positions and those former strikers returning to their operator 2 positions.9 The Respondent contin- ued to pay those replacements the higher operator 1 wage rate while paying the former strikers em- ployed as operators 2 at the lower operator 2 rate. We find no merit in the Respondent's exceptions and agree with the judge for the reasons set forth by him. However, we will modify the judge's rec- ommended remedy by requiring the Respondent to make whole its employees who after the strike re- turned to their operator 2 positions for any losses suffered as a result of the unlawful unilateral changes in accordance with Talbert Mfg., 258 NLRB 776, 782 (1981), and Sinclair Glass, 188 NLRB 362 (1971). 3. We agree with the judge's findings that the Respondent violated Section 8(a)(5) and (1) by uni- laterally issuing its May 21, 1980 "Policy Statement on Disloyalty" 10 and thereby imposing excessively broad restrictions on employee "actions and state- ments" protected under Section 7 of the Act, be- cause they could be interpreted by the Respondent as "interfering with its ability to expand and grow" and thus "disloyal." 11 7 The contract provided that employees with family coverage contrib- ute $2 69 per month toward the premiums Under the program offered the replacements, no corresponding contributions were required 8 See also the discussion in Service Electric Co, 281 NLRB 633 (1986) The judge further found that the Respondent violated Sec 8(a)(3) after the strike ended by retaining the replacements in its noncontributory in- surance program without offering the same opportunity to returning strikers The latter employees resumed their coverage under the plan as provided for in the expired contract The Respondent did not except to this finding 9 The Respondent did not except to the judge's finding that this action also constituted a violation of Sec 8(a)(3) 10 The statement reads "Any actions or statements made by employees against the Company's interests which expose the Company to public contempt and/or ridicule or damages its business reputation or interferes with its ability to expand and grow shall be considered as disloyalty " 11 We reject the Respondent's contention that the policy statement does not constitute a term or condition of employment because it does Our adoption of the 8(a)(5) finding, however, is based on the test set forth in Peerless Publications, 283 NLRB 334 (1987), issued since the judge's de- cision in this case. In Peerless the Board held that an employer who issues a code of conduct govern- ing employee behavior enforceable by discipline may overcome the presumption that it must bar- gain over such a matter by showing that the sub- ject matter of the code goes to the "protection of the core purposes of the enterprise." If it does, the code still must at least be, on its face, unambiguous and narrowly tailored to the employer's legitimate and necessary objectives. In this case we find the Respondent has not overcome the initial presumption of mandatory bargainability. Further, even if it did, the policy statement as promulgated is substantially over- broad, as found by the judge. The policy's pro- scription of employee behavior is so general and ambiguous that the Respondent is not able to sus- tain "disloyalty" as a "core" concern under the Peerless balancing test . That is, the policy is not in any manner restricted to subject matter shown to be necessary to the "protection of the core pur- poses of the enterprise." Further, the policy is simply not drawn narrowly so as to infringe on employee rights only to the extent necessary to serve legitimate interests in employee loyalty. Ac- cordingly, we find that the Respondent has violat- ed Section 8(a)(5) in unilaterally promulgating its policy statement on disloyalty. 4. The judge, relying on Wright Line, 251 NLRB 1083 (1980), dismissed the complaint allegation that the Respondent violated Section 8(a)(3) of the Act by suspending employees John Vicknair and Rich- ard Hodges on May 30, 1980, and by thereafter re- fusing to reinstate them. We agree that the com- plaint should be dismissed. However, we find, con- trary to the judge, that the General Counsel has made a prima facie showing sufficient to, support the inference that protected conduct was a "moti- vating factor" in the Respondent's decision. Wright Line, above at 1084. We also find, however, that the Respondent has met its Wright Line burden of showing that the two employees would have been suspended, even in the absence of their protected activities, because the Respondent reasonably be- not, on its face, provide for any discipline for its breach The judge's finding that the Respondent intended to enforce the policy with discipli- nary actions is clearly supported by the testimony of Personnel Manager Jerry Deutsch, the author of the statement Deutsch stated that, while the employees were not informed that discipline could flow from a violation of the policy, "We would have felt like-depending on the individual sit- uation-that the employee could be disciplined and possibly terminated " Deutsch also testified, in response to a question concerning employees who spoke to the media, "If you're going to violate a company policy, depending on the severity of the violation and the incident , termination is a possibility " GHR ENERGY CORP lieved they had engaged in serious misconduct en- dangering other employees and the plant itself. As set forth' in detail by the judge in section 111,G,1, of his decision, prior to their suspensions in May 1980 both Vicknair and Hodges had been ex- tremely active in the Union for the approximately 4-5 years of their employment. Both employees had been stewards who had filed grievances and represented employees in disciplinary meetings with management officials. Additionally, Vicknair was an active member of the union safety commit- tee and had been its chairman since 1978. In that capacity, he filed numerous complaints with the Occupational Health and Safety Administration (OSHA), several of which resulted in citations and settlements in which the Respondent agreed to pay penalties. Vicknair also complained to management about various safety hazards in the plant that re- sulted in the Respondent's making repairs to equip- ment. On two occasions in 1979 high-level plant of- ficials directly expressed to Vicknair their displeas- ure with his efforts to remedy health and safety problems. 12 During the 1980 strike, Vicknair served as strike chairman and supervised the picket line. After the strike the Respondent assigned Vicknair to a new supervisor with the explanation that hoped it would "settle [him] down." Finally, several weeks before his suspension Vicknair made yet another safety complaint to management and indicated that he would seek OSHA's help. Hodges also, as steward, made numerous safety related complaints to management. In 1978, during an OSHA inspection, Hodges, over the objections of the Respondent's safety manager, pointed out specific hazardous conditions to the inspector. A superintendent later told Hodges that his actions had resulted in a $5000 fine and that because of him there would be no Christmas bonus for em- ployees that year. In 1979 Hodges complained on two occasions that inadequate repairs had been made to damaged furnaces resulting in safety haz- ards to employees assigned to operate them. On the first occasion Hodges had consulted with Vicknair. Superintendent Ireland responded by calling Vick- nair and Hodges "troublemakers." On these facts we find that the direct expressions of displeasure by several management officials to the safety-related activities of Vicknair and Hodges 12 The Respondent 's manager of safety and fire protection, Reggie Brown, told Vicknair, in connection with a tank problem, "Johnny, you know, you best watch your step, `cause [Superintendent] Glenn [Ireland] and them is watching you " Also, in the course of Vicknair's assisting an OSHA official during an inspection, Brown told' Vicknair that he had "better cool it," as Vicknair had caused "too many problems for manage- ment" Brown warned Vicknair that the first time he "messed up" Ire- land and other supervisors would "nail" him 1013 undertaken in their capacities as union representa- tives are sufficient to support a prima facie show- ing that these activities were a motivating factor in the Respondent's decision to suspend them.13 However, we also find that the Respondent has established that it would have suspended Vicknair and Hodges even in the absence of their union ac- tivities. Briefly, as set out in the judge's decision, the relevant circumstances surrounding the suspen- sions are as follows. During the 11 p.m.-7 a.m. shift on May 24, 1980, employees Fortenberry, Vicknair, Hodges, and one other were on duty, in the area of the plant that included the utilities lab. Fortenberry suffered serious harassment, described below, while working in and near the utilities lab. After finishing his shift and working the following one, Fortenberry went home. He did not return to the plant until May 28, 1980, when he resigned. Fortenberry spoke to Superintendent Ireland and Safety Supervisor Fredrick Oubre about what had happened to him and he also provided a written statement. He reported, among other experiences, that he observed three glass bottles being thrown from an elevated platform near the lab at the lab building itself. He later checked the area where the bottles had broken and found it saturated with ker- osene. Because Fortenberry had been in the lab just prior to the bottle throwing he interpreted the inci- dent as a personal attack against him. Oubre asked Fortenberry if he could identify the persons who had thrown the bottles. Fortenberry replied that he knew what they looked like but he did not know, their names. After reviewing the Re- spondent's file of employee photographs, Forten- berry was certain that it was Vicknair and Hodges who had thrown the bottles. Oubre then submitted a written report to Deutsch summarizing Forten- berry's story, including his identification of Vick- nair and Hodges, and stating that Oubre had inves- tigated the area around the lab and found broken glass. Fortenberry also told his story to Deutsch on May 28, repeating essentially what appeared in Oubre's report. On May 30 Deutsch summoned Vicknair and Hodges to his office, confronted them with Fortenberry's accusations and told them they had been identified as the bottle throwers. Vicknair and Hodges denied any involvement in the incident and rejected Deutsch's offer of a polygraph test to IS Contrary to the judge, we do not find that the General Counsel is required to show either that Personnel Manager Deutsch, who imposed the suspensions, personally shared with certain high plant officials their clear animus against Vicknair and Hodges or that,these officials actively participated in the disciplinary decision These issues are matters for proof by the Respondent if it wished to challenge a finding that it had an unlawful motive at all In any event, the Respondent essentially concedes this point by arguing that this is a "dual motive" case, properly analyzed under Wright Line 1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD prove their innocence. Deutsch then suspended them pending further investigation. On these facts we find that the Respondent has established it would have suspended Vicknair and Hodges even in the absence of their union activity. In our view, in light of Fortenberry's accusation and Oubre's preliminary investigation, the Re- spondent has shown a reasonable basis for believing that Vicknair and Hodges had engaged in miscon- duct with a high likelihood of injuring other em- ployees and of damaging plant equipment.' 4 The potentially catastrophic consequences ,of throwing kerosene filled bottles would have provoked at least a suspension of any employee irrespective of any union animus the Respondent harbored against that employee. There has been no showing that the Respondent ever failed to take similar disciplinary action against any other employee accused of egre- gious misconduct. Accordingly, we shall dismiss the allegation that the Respondent disciplined em- ployees Vicknair and Hodges in violation of Sec- tion 8(a)(3). 5. Following his suspension on May 30, 1980, Vicknair continued his union activity by testifying as chairman of the Union's safety committee before the. State Environmental Protection Agency on June 5, 1980, and the United States Senate Finance Committee on September 12, 1980. His testimony in these public forums generally addressed the issue of alleged, environmental pollution caused by the Respondent in the course of operating its refinery business and the effects of the pollution on employ- ee health and safety. Specifically, as Vicknair testi- fied in this proceeding, his appearance before the Senate Committee was in support of the then pend- ing "Superfund" legislation.'s On September 22, 1980, as found by the judge, the Respondent's attorney wrote a letter to Vick- nair referring to his remarks before the State EPA and the Congress, as reported in the local press, concerning the Respondent's "alleged improper disposal of hazardous wastes" into a public water- way. The letter stated that Vicknair's remarks were "false and defamatory," and that the Respondent intended to file a civil lawsuit against Vicknair seeking $6 million in actual and punitive damages. There is no record evidence that such a suit was ever filed. 14 Fibracan Corp, 259 NLRB 161, 172 (1981), S & W Motor Lines, 236 NLRB 938, 944 (1978) 15 The bill was passed as the Comprehensive Environmental Response, Compensation and Liability Act of 1980, Pub L 95-510, 94 Stat 2767 (1980), codified at 42 U S C §§ 9601-9657 (1982) Among the purposes of this law is to define hazardous conditions, establish liability for such con- ditions, and establish a trust fund to cover cleanup and compensation ex- penses where necessary The judge, in addressing the 8(a)(1) allegation concerning the threat to file a lawsuit, found that Vicknair's postsuspension activity was concerted within the meaning of Section 7 of the Act and that the threat was directly motivated by Vick- nair's appearances before the regulatory and legis- lative bodies. We agree. The concerted nature of Vicknair's testimony is established by the capacity in which Vicknair was testifying-as chairman of the Union's safety committee; and the connection between the threatened suit and the testimony is virtually indisputable. We disagree with the judge's recommended dismissal of the allegation-a dismis- sal he based on his finding that Vicknair's public testimony did not come within the "mutual aid and protection" clause of Section 7 of the Act. As found by the judge, Vicknair's prepared state- ment submitted to the Senate Committee referred not only to the alleged unlawfulness of the Re- spondent's waste disposal procedures but specifical- ly to the impact of those actions on employee health and safety. Vicknair stated that an employee of the Respondent had been disciplined for ques- tioning his assignment to dump poisonous materials and that a driver whom Vicknair believed to be an employee of the Respondent had died after unload- ing such materials. The Supreme Court in Eastex, Inc. v. NLRB, 437 U.S. 556, 563-568 (1978), held that the "mutual aid and protection" clause of Section 7 of the Act pro- tects employees engaged in concerted activity "from retaliation by their employers when they seek to improve working conditions through resort to administrative and judicial forums, and that em- ployees' appeals to legislators to protect their inter- est as employees are within the scope of this clause." In our view, Vicknair's testimony in support of environmental safety laws that have ,direct impact on the working conditions of employees handling toxic materials was clearly concerted activity for the "aid and protection" not only of the Respond- ent's employees but of employees generally.'6 Fur- ther, his testimony as a union official also comes within Section 7 as assistance to a labor organiza- tion. Accordingly, we reverse the judge and find that the Respondent's threat to sue Vicknair violat- ed Section 8(a)(1) of the Act.17 16 As noted by the Eastex Court, above at 565, the definition of "em- ployee" in Sec 2(3) of the Act, which refers to "any employee, and shall not be limited to,the employees of a particular employer, unless this sub- section explicitly states otherwise," was, "intended to protect employees when they engage in otherwise proper concerted activities in support of employees of employers other than their own In recognition of this intent the Board and the courts have held that the `mutual aid or protec- tion' clause encompasses such activity " (Fn omitted ) 17 Clyde Taylor, 127 NLRB 103, 108 (1960), Thomas Steel, 281 NLRB 389 (1986) GHR ENERGY CORP 1015 6. The facts relevant to the Respondent's imple- mentation of a polygraph testing program are largely uncontested and fully set forth by the judge . Essentially, the Respondent told the Union in April 1980, in a bargaining session held during the strike, that it had obtained evidence of specific instances of industrial "sabotage" or intentional mistreatment of and damage to plant equipment. The Union denied that any unit employees were in- volved . The Respondent did not raise this issue again until August 1980, at that time citing several new incidents of suspected sabotage. When the Union, later that month, requested further informa- tion, the Respondent answered on January 16, 1981, with a list of six specific incidents . On Janu- ary 22 , 1981, the Union requested the names of any employees suspected of this misconduct and access to the Respondent's investigatory files. The Re- spondent did not answer this request. During meetings on February 11 and 12, 1981, the Respondent indicated its desire to administer polygraph tests to unit employees in order to iden- tify those involved in the alleged sabotage and thus solve the problem . The Respondent assured the Union during those meetings that unit employees would be entitled to have a union representative with them during the polygraph examinations. The Union stated that, while it was generally opposed to polygraph testing on reliability and validity grounds, it would consider testing of some sort if the Respondent could demonstrate that in fact there had been intentional damage to plant equip- ment and that unit employees were near the affect= ed machinery When the damage occurred. During the next meeting, on February 21, the Respondent informed the Union that it had re- tained a polygraph examiner who had already ar- rived at the plant. The Respondent also stated that testing would begin for all employees with "oppor- tunity" and "knowledge" to accomplish the alleged sabotage . It also announced that, contrary to its previous promises , no third party, or union repre- sentative, would be permitted in the examination room due to the insistence of the examiner. How- ever, the Respondent also announced that alterna- tive representational opportunities would be avail- able to the Union . i s Finally, during the February 21 meeting the Respondent offered , for the first time, to show its investigatory files to the Union. According to the judge's credibility findings, the "'The Respondent permitted a union representative to be stationed just outside the examination room for consultation dust before the test and also allowed employees to temporarily interrupt their polygraph examina- tion to go out and consult with their union representative before return- ing to complete it Additionally , the Respondent provided the Union at the February 21 meeting with a complete list of the 10 questions that would constitute the examination Union showed no interest at that time in seeing them. The Union did request 1 additional day to consult with the unit employees and to consider the newly proposed conditions under which the polygraphing Would be conducted . The Respond- ent refused that request and testing began that night on the February 22 midnight shift. On February 23 and Match 11, 1981, the Union wrote the Respondent again asking for information on the six incidents described in the Respondent's letter of January 16. The Respondent answered only with a summary of evidence that it claimed supported its assertion of sabotage to a compressor in February . On February 25 a supervisor told em- ployee Gaubert to take the polygraph test. When Gaubert asked what would happen to him if he re- fused, the supervisor replied that it "would be an admission of guilt and you'd be suspended." On March 19 and 20 the Union requested detailed in- formation concerning the administration and results of the testing program . The Respondent -did not provide any of the requested information. We agree with the judge that, on these facts and for the reasons set forth by him, the Respondent violated Section 8(a)(5) by refusing to supply re- quested information on (1) the incidents of asserted -sabotage, and (2) the administration and results of the polygraph testing program as implemented, and violated Section 8(a)(1) by threatening employee Gaubert. Although we also agree with the judge that the Respondent violated Section 8(a)(5) by unilaterally implementing the polygraph testing program and violated Section 8(a)(1) by suspending employees who refused to submit to it , we do so only for the following reasons. We find it unnecessary to pass on the judge's analysis when he found no merit to the Respond- ent's claim that , although the subject of polygraph testing is a mandatory subject of bargaining," the Respondent was entitled to implement the program based on a bargaining impasse . For even if a legiti- mate impasse existed , the Respondent could make a unilateral change only if the change was "reason- ably comprehended under [the Respondent's] pre- impasse proposals."20 Here the testing program as implemented clearly was not. Prior to the February 21 meeting, the Respondent had repeatedly stated that under its proposal unit employees would be al- lowed to have a union representative with them during the examination. However, on February 21 the Respondent suddenly reversed course and stated that, while it would make other accommoda- 19 Medicenter, Mid-South Hospital, 221 NLRB 670, 678 (1975) 20 Taft Broadcasting Co, 163 NLRB 475, 478 (1967), Tampa Sheet Metal Co , 288 NLRB 322, 326 (1988) 1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tions to satisfy the Union's interest in a representa- tional presence, the testing program would not in- clude provision for any person to accompany em- ployees during the examinations. The Union was thus faced with a fait accompli, since the Respond- ent denied its request for a 1 day delay to consider the new proposal-one significantly different from the original proposal the parties had to that point been negotiating-and began testing only a few hours later. Given that polygraph testing is un- doubtedly very intimidating to employees, the sudden imposition of the tests in a manner that the Union had no adequate opportunity even to discuss with the employees in advance could only serve to undermine its representative status in the eyes of those it represented. Whatever the merits-from a polygraph examiners' perspective-of a plan in which the employee went into the polygraph ex- amination room alone, this change in procedure was sufficiently significant to warrant further dis- cussion with the Union before finally deciding whether to put it into effect. Accordingly, we find that,, under Taft Broadcasting, the Respondent vio- lated Section 8(a)(5) by unilaterally imposing its polygraph testing program.21 With respect to the suspensions given to those employees who refused to take the polygraph test, we find that they constitute violations of Section 8(a)(1) since they were imposed pursuant to the un- lawful testing program. Pease Co., 251 NLRB 540, 547-548 (1980).22 21 We do not imply that an employer may not lawfully develop a plan for a change in a term of employment before announcing to the union its intention to implement that plan If such an announcement is made suffi- ciently in advance of implementation to provide time for meaningful bar- gaining and the union fails to request bargaining , the employer may law- fully implement the plan See Owens Corning Fiberglass Corp, 282 NLRB 609 (1987) The gravamen of the Respondent's offense here is that the management representative who announced, on February 21, the revised conditions under which the polygraph testing would be conducted also stated that no time would be provided for the Union to consider the re- vised plan and that testing would begin that night Thus, the Union was effectively informed that nothing could be done about the revised plan In addition to its reliance on an impasse theory, the Respondent justi- fies its unilateral imposition of the polygraph testing program on grounds of emergency conditions, i e , the possibility of fires and explosions in the refinery caused by intentionally damaged equipment The Respondent relies on former Chairman Murphy's concurrence in Medicenter, above at fn. 2, and Johns-Manville Products v NLRB, 557 F 2d 1126 (5th Cir 1977) However, in those cases the existence of sabotage was either not disputed or shown to have existed by credible evidence Here, the Union denies that equipment problems were caused intentionally Additionally, the judge, in the absence of probative evidence in the record, does not find either that sabotage occurred or that the Respondent had reasonable cause to so believe In fact, the Respondent 's failure to provide such evi- dence to the Union constitutes the basis for the 8(a)(5) violation found by the judge and affirmed by us The Respondent has therefore not proven the existence of emergency conditions 22 We need not pass on the judge's discussion of issues related to the concertedness of the employees ' refusal to take the polygraph test be- cause it would be relevant only in the context of discipline imposed pur- suant to a lawful term or condition of employment See also fn 3, infra The complaint alleged, inter alia, that the Respondent violated Sec 8(a)(1) by suspending certain employees for refusing to take the poly- 7. We agree with, the- judge's recommended dis- missal of the allegation that the Respondent violat- ed Section 8(a)(5) by refusing on January 30, 1980, to include certain employees of TCP Construction Co. as an accretion to the bargaining unit and to recognize and bargain with the Union as the repre- sentative of GHR's and TCP's employees. The Board has followed a restrictive policy in finding accretion because it forecloses the employ- ees' right to select their bargaining representative. Towne Ford Sales, 270 NLRB 311 (1984). In implic- it recognition of this policy, the judge carefully ap- plied the balancing test set forth in Gould, Inc., 263 NLRB 442, 445 (1982), and found that as of the January 30, 1980 demand for recognition of an overall unit the factors relative to common interest militating in favor of accretion were outweighed by those against it. However, in agreeing with the judge we do not rely on his speculation, based on what the record "suggested," that the number of employees the Union wished to accrete as of January 30 "might well have exceeded" the number of employees in the existing unit. The judge considered evidence that the number of TCP employees "was expand- ing toward 3000" and that the number of unit em- ployees was "somewhere between 500 and 1600." In our view, the General Counsel, whose burden it is here to show accretion, has not established suffi- ciently precise evidence relevant to the relative numbers of employees involved because the record does not reveal the number of unit employees on January 30 or the number of TCP employees in ap- propriate classifications that the Union wished to accrete at that time. In any event, under Gould this factor assumes critical significance only if the evi- dence is in the record. Finally, we agree with the judge that the Re- spondent violated Section 8(a)(5) in not providing the Union with certain information requested on January 30. That information was, as found by the graph test without union representation when they had reasonable cause to believe that the testing would result in disciplinary action The Charg- ing Party has excepted to the judge's failure to find this independent vio- lation based on NLRB v J Weingarten, 420 U S 251 (1975) We need not decide here any issues about whether Weingarten rights attach to an in- vestigatory interview conducted in the form of a polygraph test and, if so, what testing conditions would ensure that an employee's exercise of that right does not interfere with "legitimate employer prerogatives," Weingarten, above at 258 A separate 8(a)(1) violation would not change the make-whole remedy we shall order for the otherwise unlawfully im- posed discipline See Consolidated Casinos Corp, 266 NLRB 988 (1983), in which the judge found Weingarten violations in the polygraph context and discussed the issue of "accommodation " between an employee's right to both a witness and a consultant and an employer 's right to administer polygraph tests The Board adopted his decision without comment on these points but did so with the reservation that its adoption was made in the absence of exceptions and should not be construed as an endorsement of all of the judge's findings and conclusions GHR ENERGY CORP 1017 judge, relevant to the issues of GHR's relationship justments and by refusing to permit Simmons to to TCP and whether TCP employees were proper- enter on its property for these purposes. ly part of the existing unit. (i) Refusing to supply requested information nec- ORDER The National Labor Relations Board orders that the Respondent, GHR Energy Corp., Good Hope, Louisiana, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Withholding contractual sick leave benefits from employees during and after a strike when such employees are eligible for coverage under the contract because of physical disability. (b) Discriminating against former economic strik- ers by paying higher wage rates or providing better health insurance coverage to strike replace- ments or otherwise discriminating against employ- ees because they engaged in a strike or other union activity. (c) Unilaterally granting an increased wage rate, promulgating a disloyalty policy, or imposing a polygraph testing requirement without bargaining with Oil, Chemical and Atomic Workers Interna- tional Union, and its Local 4-447 as the exclusive collective-bargaining representative of the employ- ees in the following appropriate unit: All production, maintenance and construction employees including laboratory employees and warehousemen employed by GHR Energy Corp. at its refinery in Good Hope, Louisiana, excluding office clerical employees, the chief chemist, shift foremen, guards and supervisors as defined in the Act. (d) Promulgating an overbroad disloyalty policy that interferes with, coerces, or restrains employees in the exercise of their rights under Section 7 of the Act, including activities on behalf of the Union. (e) Suspending or otherwise disciplining its em- ployees for refusing to take, or for failing, the un- lawfully imposed polygraph test. (f) Threatening employees with suspension or other discipline if they refuse to take an unlawfully imposed polygraph test. (g) Interviewing any employee without permit- ting the employee to have the union representative of his or her choice, if that representative is avail- able, and if the employee has reasonable cause to believe that the matters to be discussed at the inter- view may result in the employee being subject to disciplinary action. (h) Failing to meet and bargain with the Union by refusing to meet with Gail Simmons as the rep- resentative of bargaining unit employees for the purpose of collective bargaining or grievance ad- essary for and relevant to the Union's performance of its function as exclusive representative of em- ployees in the bargaining unit. (j) Threatening employees with lawsuits for defa- mation because they gave testimony before state regulatory commissions and congressional commit- tees. (k) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Should the Respondent resume operations of its Good Hope, Louisiana facility, it shall offer to the following employees immediate and full rein- statement to their former jobs or, if a particular job no longer exists , to a substantially equivalent posi- tion without prejudice to their seniority and other rights and privileges, and make each employee whole for any losses of earnings and other benefits suffered as as result of the unlawful discharges or suspensions, in the manner set forth in the ' remedy section of the judge's decision, as modified: Gerald Benoit Steven Miller Henry Vicknair Dino Miranda Eugene Williams Gus Lee Couch Jr. Marion Mericle Gibson Sewell Ronald P. Gaubert Teryl Schexnayder Gail Simmons William Hubbard Jr. Dennis Guarino Robert Snyder Dan R. Duncan Ross Allen George LeBourgeois James K. Sharp John Jaskola Glenn J. Gaubert Martin L. Ware Rene Elfer (b) Remove from its files any references to Gail Simmons' discharge, Rene Elfer's suspension or his discharge, or to the suspensions of the other em- ployees listed in paragraph 2(a) of this Order, and notify each of them in writing that this has been done and that the discharge or suspension will not be used against him in any way. (c) Make whole employees Emanuel A. Seals Jr. and Gregg Williams by paying to each of them, with interest, the sick leave benefits due him under article XXXI of the 1978 collective-bargaining agreement, during the period from March 1, 1980, until April 16, 1980, in the case of Seals, and in the case of Williams, from March 1, 1980, until it has been determined either that his disability on which the benefits are based has ended, or that the con- 1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tractual right to receive sick benefits has expired, whichever occurs first. (d) Make whole those employees who engaged in the 1980 strike and who suffered discrimination with respect to the cost of health insurance bene- fits, by reimbursing them for premiums they may have paid for health insurance, as provided for under the 1978 collective-bargaining agreement, from April 14, 1980, until GHR rescinds the premi- um free insurance coverage it granted to the strike replacements, plus interest. (e) Make whole those employees who engaged in the 1980 strike and returned to work as operators 2 by paying them each a sum representing the differ- ence between the operator 2 wages paid them and operator 1 wages, plus interest, from April 14, 1980, until GHR rescinds its grant of operator I wages to strike replacements employed as opera- tors 2. (f) Rescind in writing the policy statement on disloyalty and the requirement that employees rep- resented by the Union in the unit described above take a polygraph test as a condition of employ- ment. (g) Furnish the Union, on request, with the fol- lowing information: 1. Information regarding the progress of GHR's investigation of the alleged misconduct of employ- ees John Vicknair and Richard Hodges, as of No- vember 6, 1980, and any new evidence GHR has obtained in that investigation and information re- garding whether GHR had terminated them, and if so, the dates of, and the reasons for, the termina- tions. 2. The names of individuals who had reported to GHR that Gail Simmons had solicited them on the Union's behalf, as the Union had requested in its letters of July 17 and August 18, 1980. 3. The results of GHR's investigation of alleged sabotage at its Good Hope , Louisiana refinery but not including witnesses' statements, and informa- tion regarding the imposition of polygraph tests on bargaining unit and nonbargaining unit employees, all as more fully specified in the Union's oral re- quests of February 11, 12, and 21 , 1981 , and in the Union's letters of January 22, February 23, March 11, and March 20, 1981. 4. Information regarding TCP Construction Co., Inc. and its relationship with GHR, which the Union requested in its letter of January 30, 1980. (h) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (i) Mail signed and dated copies of the attached notice marked "Appendix"23 to the last known ad- dress of all unit employees as of the date of the 1983 closing of the Respondent's Good Hope, Lou- isiana facility. Copies of the notice, on forms pro- vided by the Regional Director for Region 15, after being signed by the Respondent's authorized representative, shall be mailed immediately upon receipt. (j) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that those allegations of the complaint for which no violations have been found are dismissed. 23 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT withhold contractual sick leave benefits from employees during a strike when such employees are eligible for coverage under the con- tract because of physical disability. WE WILL NOT discriminate against former eco- nomic strikers by offering higher wage rates or better health insurance coverage to strike replace- ments or otherwise discriminate against employees because they engage in a strike or other activity protected by Section 7 of the Act. WE WILL NOT unilaterally grant an increased wage rate, promulgate a disloyalty policy, or impose a polygraph test as a condition of employ- ment without bargaining with Oil, Chemical and Atomic Workers International Union, and its Local 4-447, as the exclusive collective-bargaining repre- sentative of the employees in the following appro- priate unit: All production, maintenance and construction employees including laboratory employees and warehousemen employed by GHR Energy Corp., at its refinery in Good Hope, Louisiana, GHR ENERGY CORP excluding office clerical employees, the chief chemist, shift foremen, guards and supervisors as defined in the Act. - WE WILL NOT promulgate an overbroad disloyal- ty policy that interferes with, coerces, or restrains you in the exercise of concerted activity protected under Section 7 of the Act, including activities on behalf of the Union. WE WILL NOT suspend or otherwise discipline you because you refused to take, or because you failed, the unlawfully imposed polygraph test. WE WILL NOT threaten you with discharge, sus- pension, or other punishment if you refuse to take an unlawfully imposed polygraph test. WE WILL NOT interview you without permitting you to have the union representative of your choice, if that representative is available, and if you have reasonable cause to believe that the matters to be discussed at the interview may result in your being subject to disciplinary action. WE WILL NOT fail and refuse to meet and bar- gain with the Union by refusing to meet with Gail Simmons as the representative of bargaining unit employees for the purpose of collective bargaining or grievance adjustments and WE WILL NOT refuse to permit Simmons to enter our property for these purposes. WE WILL NOT refuse to supply requested infor- mation necessary for and relevant to the Union's performance of its function as exclusive representa- tive of employees in the bargaining unit. WE WILL NOT threaten employees with lawsuits for defamation because they give testimony before state regulatory commissions and congressional committees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. Should we resume operations of our Good Hope, Louisiana facility, WE WILL offer to the fol- lowing employees immediate and full reinstatement to their former jobs or, if a particular job no longer exists, to a substantially equivalent position without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings, with interest. Gerald Benoit Steven Miller Henry Vicknair Dino Miranda Eugene Williams Gus Lee Couch Jr. Marion Mericle Gibson Sewell William Hubbard Jr. Dennis Guarino Robert Snyder Dan R. Duncan Ross Allen George LeBourgeois James K. Sharp John Jaskola 1019 Ronald P. Gaubert Glenn J. Gaubert Teryl Schexnayder Martin L. Ware Gail Simmons Rene Elfer WE WILL remove from our files any references to Gail Simmons' discharge, Rene Elfer's suspen- sion or his discharge, and to the suspensions of the other employees listed above and notify each of them in writing that this has been done and that WE WILL not use the discharges or suspensions against him in any way. WE WILL make whole employees Emanuel A. Seals Jr. and Gregg Williams by paying to them, with interest, the sick leave benefits due them under article XXXI of the 1978 collective-bargain- ing agreement, for the period from March 1, 1980, until April 16, 1980, in the case of Seals, and in the case of Williams, from March 1, 1980, until it has been determined either that Williams' disability on which the benefits are based has ended or that the contractual right to receive sick benefits has ex- pired, whichever occurs first. WE WILL make whole those employees who par- ticipated in the 1980 strike and who, on returning to work, suffered discrimination with respect to health insurance coverage, by reimbursing them for premiums they may have paid for health insurance, as provided under the 1978 contract, from April 14, 1980, until we rescind the premium-free insur- ance coverage we granted to the strike replace- ments, with interest. WE WILL make whole those former strikers who returned to work as operators 2 for any loss of earnings they may have suffered due to our dis- crimination against them, with interest. WE WILL rescind the policy statement on disloy- alty and the requirement that employees represent- ed by the Union in the unit described above take a polygraph test as a condition of employment. WE WILL, on request, furnish the Union with the following information: 1. Information requested in the Union's letter of November 6, 1980, regarding the progress of our investigation of the alleged misconduct of employees John L. Vicknair and Richard E. Hodges, as of November 6, 1980, and any new evidence we obtained in that investigation and information regarding whether we terminated them and, if so, the dates of and the reasons for the terminations. 2. The names of individuals who had report- ed to us that Gail Simmons had solicited them on the Union's behalf, as the Union had re- quested in its letters of July 17 and August 18, 1980. 1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3. The results of our investigation of alleged sabotage at our Good Hope, Louisiana refin- ery, but not including witnesses' statements, and information regarding the imposition of polygraph tests on bargaining and nonbargain- ing unit employees, all as more fully specified in the Union's oral requests on February 11, 12, and 21, 1981, and in the Union 's letters of January 22, February 23, and March 11 and 20, 1981. 4. Information regarding TCP Construction Co., Inc. and its relationship with GHR which the Union requested in its letter of January 30, 1980. GHR ENERGY CORP. John H. Curley, Charlotte N. White, and Michael M. Pet- kovich, Esqs., for the General Counsel. Andrew C. Partee Jr., John B. Waldrip, and Patrick R. Hug Esq& (Partee & Waldrip), of New Orleans, Louisi- ana, and John A. Meagher and Robert J. Hrebek, Esq& (Meagher & Hrebek), of Manasquan, New Jersey, for the Respondents. Victor H. Hess and Dennis N. Angelico, Esgs: (Hess & Wa- shofsky), of New Orleans, Louisiana, and Mr. Ernie Roussell, OCAW, International Representative, of Mar- rero, Louisiana, for the Charging Party. DECISION STATEMENT OF THE CASE LEONARD M. WAGMAN, Administrative Law Judge. Upon a charge filed by the Union, Oil, Chemical and Atomic Workers International Union, and its Local 4- 447, on 1 February 1980,1 the Regional Director for Region 15 issued a complaint in Case 15-CA-7563, on 7 March, alleging that Respondent, GHR Energy Corp.,2 referred to below as "GHR" violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended (29 U.S.C. 151 et seq.), referred to as the Act, by failing and refusing to provide information to the Union regarding TCP Construction Co., Inc. Upon a further charge filed by the Union on 17 April, the Regional Director issued a complaint in Case 15- CA-7655 on 8 May, alleging that GHR had violated Section 8(a)(1) and (3) of the Act by failing and refusing to pay sick leave benefits to employees Gregg Williams And Emanuel Seals Jr., as required by a collective-bar- gaining agreement. By order issued on 8 May, the Re- gional Director consolidated Case 15-CA-7563 with Case 15-CA-7655. Upon a further charge which the Union filed on 23 May, and an amended charge which the Union filed on 26 June, the Regional Director issued a complaint in ' On 10 September 1981, the Regional Director for the National Labor Relations Board's Region 15 amended the complaints in these proceed- ings to show that Respondent Good Hope Refineries had changed its name to "GHR Energy Corp." 2 Unless otherwise stated, all dates occurred in 1980. Case 15-CA-7708, on 8 July, alleging that : GHR had violated Section 8(a)(1) and (3) of the Act by suspending and then discharging employee Rene Elfer ; that GHR had violated Section 8(a)(5) and (1) of the Act by unilat- erally posting, promulgating and implementing a loyalty policy, and by unilaterally eliminating the breaker day overtime program, and an employee training program; and, that GHR and Respondent TCP Construction Co., Inc., referred to below as TCP, had violated Section 8(a)(5) and (1) of the Act by refusing to extend a collec- tive-bargaining agreement to TCP's employees and by failing and refusing to recognize and bargain with the Union as the bargaining representative of a unit of GHR's and TCP's employees. By his order of 8 July the Regional Director consolidated Cases 15-CA-7563, 15- CA-7655, and 15-CA- 7708. Upon the Union's charge filed on 3 July and amended on 30 July, the Acting Regional Director issued a com- plaint on 11 August, in Case 15-CA-7768, alleging' that GHR violated Section 8(a)(1), (3), and (5) of the Act by enrolling bargaining unit employees, who were hired during a strike, into a health plan which differs from the plan granted to unit employees under a collective-bar- gaining agreement, and by paying bargaining unit em- ployees, who were hired during a strike, at a higher rate than it paid to unit employees in similar classifications, who participated in the strike, all without affording the Union an opportunity to bargain about the changes in the wages and conditions of employment of bargaining unit employees. On 11 August, the Acting Regional Di- rector also ordered the consolidation of Case 15-CA- 7768 with Cases 15-CA-7563, 15-CA-7655, and 15-CA- 7708.- Upon the Union's charge filed on 28 August, the Acting Regional Director issued a complaint in Case 15- CA-7836, on 12 November, alleging that GHR had vio- lated Section 8(a)(1) and (3) of the Act by denying em- ployee Gail Simmons' request for union representation during an interview which Simmons had reasonable cause to believe would result in disciplinary action, by interviewing Simmons, and finally by discharging him because of his union activity. On 12 November , the Re- gional Director also ordered the consolidation of Cases 15-CA-7836 with Cases 15-CA-7563, 15-CA-7655, 15- CA-7708, and 15-CA-7768. Upon the Union's charge filed on 6 October and its amended charge filed on 5 November, the Acting Re- gional Director issued a complaint on 26 November, in Case 15-CA-7887 alleging that GHR had violated Sec- tion 8(a)(5) and (1) of the Act by refusing to meet with Gail Simmons for the purposes of adjusting grievances or collective bargaining, by refusing to allow Simmons on its premises, and by failing to honor the Union's re- quest for the names of individuals, who had reported knowledge of Gail Simmons' solicitation. On 26 Novem- ber, the Acting Regional Director ordered the consolida- tion of Cases 15-CA-7887 with Cases 15-CA-7563, 15- CA-7655, 15-CA-7708, 15-CA-7768, and 15-CA-7836. Upon the Union's charge filed on 25 November, the Regional Director issued a complaint in Case 15-CA- 7951, on 10 February 1981, alleging that GHR had vio- GHR ENERGY CORP. lated: Section 8(a)(1) of the Act by threatening to file a lawsuit against an employee because he had engaged in union, or other protected, concerted activity, Section 8(a)(3) and (1) of the Act by suspending employees Johnny Vicknair and Ricky Hodges because of their union activity; and Section 8(a)(5) and (1) of the Act by failing and refusing to honor the Union's request for in- formation regarding Vicknair's and Hodges' suspensions On 10 February 1981, the Regional Director ordered the consolidation of Cases 15-CA-7951 with Cases 15-CA- 7563, 15-CA-7655, 15-CA-7708, 15-CA-7768, 15-CA- 7836, and 15-CA-7887 Upon a charge filed by the Union on 23 March 1981, and amended by the Union on 12 May 1981, the Region- al Director issued a complaint on 19 May 1981, alleging that GHR had violated Section 8(a)(1) of the Act, by suspending employees because they refused to undergo polygraph testing without the presence of a union repre- sentative, when the employees had reasonable cause to believe that the testing would result in disciplinary action, and by threatening an employee with suspension if he refused to take a polygraph test.3 The complaint also alleged that GHR violated Section 8(a)(1) and (5) of the Act by failing and refusing to furnish the Union with information regarding GHR's assertions that it had suf- fered sabotage, and by unilaterally implementing poly- graph testing among the bargaining unit employees with- out bargaining to impasse with the Union. On 19 May 1981, the Regional Director, ordered the consolidation of Case 15-CA-8088 with Cases 15-CA-7563, 15-CA-7655; 15-CA-7708, 15-CA-7768, 15-CA-7836, 15-CA-7887, and 15-CA-7951. GHR, by its answers to the com- plaints, denied commission of any of the alleged unfair labor practices. The hearing in these consolidated cases was held before me at New Orleans, Louisiana, on 21 and 22 Sep- tember 1981, 16, 17 and 18 May, 1983, 19, 20, 21, 22 and 23 March 1984, 10, 11, 12, and 30 April 1984, 1, 2 and 3 May 1984, 23, 24 and 25 July 1984, and at New York City, New York, on 20 June 1984. Upon the entire record in these cases, and from my observation of the demeanor of the witnesses, and after having considered the briefs filed by the General Counsel and GHR, I make the following FINDINGS OF FACT 1. JURISDICTION GHR, a corporation licensed to do business in the State of Louisiana, refines petrochemicals at its Good Hope, Louisiana, refinery. In the course and conduct of its business, GHR annually sells and ships products valued in excess of $50,000 directly to customers located outside of Louisiana. TCP is a Louisiana corporation with offices and place of business at Good Hope, Louisiana, where it performs industrial construction and engineering. In the course 3 At the hearing, on 9 April 1984, over GHR's objection, I granted the General Counsel's motion to amend the complaint in Case 15-CA-8088 to allege that GHR violated Sec 8(a)(1) of the Act by suspending em- ployees because they engaged in protected, concerted activity 1021 and conduct of its business, TCP annually purchases and receives directly from points outside of Louisiana goods and materials valued in excess of $50,000. Both GHR and TCP have admitted the commerce data recited above. I find from those facts that GHR and TCP are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION GHR and TCP admit, and I find, that Oil, Chemical and Atomic Workers International Union, and its Local 4-447 are labor organizations within the meaning of Sec- tion 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. GHR's Refusal To Pay Sick Leave Benefits to Emanuel A. Seals Jr. and Gregg Williams 1. Facts Following a Board-held election, the Regional Direc- tor certified the Union as the collective-bargaining repre- sentative of the following unit of GHR's employees on 29 December 1971: All production and maintenance employees includ- ing laboratory employees employed at [GHR's] Good Hope, Louisiana, facility; excluding office clericals, construction employees, the chief chemist, shift foremen, guards and supervisors as defined in the Act. However, in 1975, GHR agreed to include its con- struction employees in the bargaining unit Thereafter, GHR recognized and bargained with the Union for the unit described in the certification plus its construction employees. The recognition clause in the 1978 collective- bargaining agreement between GHR and the Union re- flected the inclusion of the construction employees in the bargaining unit.4 The latest collective-bargaining agree- ment to which GHR and the Union were parties was ef- fective from 1 March 1978 through 29 February 1980. On 1 March, the Union commenced a lawful economic strike at GHR, which the bargaining unit employees sup- ported The strike ended on 14 April, when the unit em- ployees returned to work. On 28 February, bargaining unit employees Emanuel A. Seals Jr. and Gregg Williams suffered injuries while working at the GHR facility. Seals was off from work from 28 February until 16 April, when his physician per- mitted him to return to work. I also find from Seals' un- contradicted testimony, that he was under the physician's care from 28 February until 16 April. Williams did not testify and the record did not show when he returned to work. However, I find from the tes- timony of Jerry K. Deutsch, who at all times material to these cases, was GHR's personnel manager, that Wil- 4 All production, maintenance and construction employees, including laboratory employees employed by the Employer at is refinery in Good Hope, Louisiana, excluding office clerical employees, the chief chemist, shift foremen, guards and supevisors as defined in the Act 1022 DECISIONS OF THE NATIONAL liams remained away from work at GHR after the strike began. In view of this injury, and his absence from work, I infer that Williams was incapacitated for some time after 28 February. However, I cannot determine from the record when Williams was able to return to work. I find from Seals' testimony and GHR 's assertion in its brief, that GHR paid sick leave benefits to Seals and Williams under the provisions of the 1978 contract,5 only for 28 and 29 February. I find from Deutsch's testimony that GHR withheld further sick leave benefits from Seals because Deutsch observed Seals on the picket line during s The applicable provision was as follows: ARTICLE XXXI SICK LEAVE Section 1 . After completion of probationary period , a regular em- ployees is eligible for sick leave. Section 2. Employees will be granted leave and paid for scheduled straight time days lost due to ... sickness or occupational injury in accordance with the following: Occupational Nonoccupational Accredited Service Full Half Full Half Paydays Paydays Paydays Paydays 0-1 5 0 5 0 1-2 10 20 10 20 2-3 15 40 15 40 3-4 20 60 20 60 4-5 25 80 25 80 5-6 30 100 30 100 6-7 35 120 35 120 7-8 40 140 40 140 8-9 45 160 45 160 9-10 50 180 50 180 10-11 55 195 55 195 11-12 60 200 60 200 12 & over 65 210 65 210 During any period of non-occupational disability , benefits to a qualified employee shall begin after an absence of eight accumulated working hours. In the case of occupational accident or if hospital- ized-no waiting period shall be required. Scheduled benefits are not accumulative. An employee's years of accredited service on the first day of his disability shall govern bene- fits. - Reinstatement is subject to passing anniversary date and two weeks work without a benefit claim. "Full Paydays"means the hourly base straight time rate multiplied by the number of hours lost in a work day. "One-half Paydays" means the employee's hourly base straight tune rate multiplied by one -half the number of hours lost in a work day. Section 3. The Company reserves the right to require proof of ill- ness prior to releasing sick pay . The Company requires a doctor's re- lease following any operation or illness longer than three (3) consec- utive working days Section 4. In the event an employee who has suffered an occupa- tional injury has used up the employee's accumulated and accrued scheduled benefits as specified in Section 2, above , and the employee still is unable to return to work, the employee may then use any unused portion of his scheduled non-occupational and illness leave benefits, as may be required. Under these circumstances, the one-day waiting period is not applicable. LABOR RELATIONS BOARD the strike and further because Deutsch learned in early April that Seals had filed for unemployment compensa- tion from the State of Louisiana.6 Deutsch also conclud- ed that Williams was not entitled to any sick leave after 29 February, when he saw from GHR's security's report that "Williams was seen on the picket line during the strike." Deutsch found support for his conclusion that Seals and Williams had joined the strike , when union ne- gotiators told him that all the unit employees had sup- ported the strike. 2. Analysis and conclusions The Board, in Emerson Electric Co., 246 NLRB 1143 (1979), enfd. as modified 650 F.2d 463 (3d Cir. 1981), cert. denied 455 U.S. 939 (1982), concluded that an em- ployer had violated Section 8(a)(1) and (3) of the Act by terminating sick and accident benefits to employees who were disabled at the onset of a strike, and had not mani- fested support for the strike. In reaching these conclu- sions, the Board held that an employer could not "re- quire its disabled employees to disavow strike action during their sick leave in order to receive disability bene- fits...." Emerson, supra at 1143. However, the Board also declared that employees who showed support for a strike by picketing or other public manifestations thereby terminated their right to further disability payments. The Board held (id. at 1144): [F]or an employer to be justified in terminating any disability benefits to employees who are unable to work at the start of a strike- it must show that it has acquired information which indicates that the em- ployee whose benefits are to be terminated has af- firmatively acted to show public support for the strike. In Conoco, Inc., 265 NLRB 819, 820 (1982), enfd. 740 F.2d 811 (10th Cir. 1984), the Board overruled the quoted holding in Emerson, and held instead that: . [O]nce a disabled employee's benefits have been ille- gally cut off because of a strike, the disabled em- ployee 6 Seals denied that he had picketed GHR at any time during the strike. He also could not remember whether he had filed an unemployment claim with the State. However, I credited Deutsch's full and forthright testimony that he had seen Seals on the picket line on one occasion and that Seals had filed for unemployment compensation. From my impression at the hearing, and after review of the record I was convinced that Seals was an unreliable witness. Seals seemed uncer- tain and hesitant as he testified about his visits to the picket line. His tone and attitude left me with the impression that he was either withholding his full recollection or that he had a weak recollection of his visits to the 1980 picket line. Seals' further testimony that he could not remember whether he had filed a claim for unemployment benefits during the stoke persuaded me that he was not a candid witness with respect to both his participation in the strike and his filing of a claim for unemployment benefits with the State of Louisiana. For it was unlikely that he would forget an event touching on his income. Moreover, the record shows that in fact Seals had filed such a claim on 8 April, and that he had based his claim upon the strike. GHR ENERGY CORP ployee should be recompensed for those lost bene- fits until it had been determined either that the dis- ability on which the benefits are based has ended, or the contractual right to receive such beneifts has run out, whichever comes first. The Board also declared in Conoco, 265 NLRB at 821, that: [P]icketing for the Union, or otherwise participating in the strike , does not render an individual a striking employee. The key is whether that employee is withholding services from the employer in support of a labor dispute... . Applying the principles of Emerson and Conoco to the instant case, I find that GHR acted unlawfully when it discontinued sick leave payments to Seals and Williams on 1 March, when the strike began. The record shows that on that date, both employees were disabled and enti- tled to sick leave payments. Their presence on the picket line did not render them striking employees For as long as they were disabled from working, neither Seals nor Williams had "the option to become a striker." Conoco, Inc., 265 NLRB at 821. Similarly, Seals' declarations of support for the strike in his application for unemployment benefits from the State of Louisiana did not entitle GHR to withhold his sick leave benefits as of 8 April, the date of that applica- tion. Nor did Seals' application for such benefits show that he was able to work at GHR. For according to his physician's note, and Seals' credited testimony, he was disabled until 16 April. In sum, I find that GHR violated Section 8(a)(1) and (3) of the Act by discontinuing Seals' and Williams' sick leave benefits on 1 March, because it believed that they had actively supported the Union's strike I also find that Seals' entitlement to sick leave payments continued until he returned to work on 16 April. However, as the record does not show when Williams' disability ended, I shall leave that determination for compliance. B. GHR's Health Insurance and Wage Policies Toward Unit Employees Hired During the 1980 Strike 1. Facts Under the 1978 collective-bargaining agreement, and following its expiration, GHR paid premiums for a Blue Cross/Blue Shield health insurance program which the Union administered for the benefit of bargaining unit em- ployees. GHR contributed $37.20 per month for individ- ual medical coverage and $84 per month for family cov- erage. Those unit employees who required family cover- age contributed an additional $2.69 per month. Unit em- ployees under indvidual coverage made no contribution. The Union's administration of the program entailed en- rolling unit emloyees and having those, who wanted family coverage , authorize the monthly deduction of $2.69 from their wages. GHR also administered a Blue Cross and Blue Shield medical insurance program for its nonbargaining unit personnel . Under this program , GHR contributed month- ly premiums of $26.75 for individual coverage and $78.06 1023 for family coverage. Under GHR's nonunion program, employees made no contribution. During the strike, without notifying the Union or seek- ing to bargain about this new policy, GHR enrolled em- ployees hired to replace the striking unit employees in its health insurance program , and contributed the premiums in full. After the strike ended on 14 April, GHR initially retained the nonstriking unit employees in its program. Later, some of these employees enrolled in the Union's program. The returning strikers resumed their coverage under the Union's health insurance plan. Thus, unit employees again paid $2.69 per month toward the premium for family coverage. The pleadings also called attention to GHR's treat- ment of the strike replacement's wages. The record showed that during the 1980 strike, GHR hired strike re- placements for its operator 1 and operator 2 classifica- tions at the wage rates prescribed in the 1978 contract. Under that contract, an operator l's hourly rate was $9.22 and an operator 2 was to receive $8.74 per hour I find from employee Dan Duncan's testimony that these rates had risen to $9.95 and $9.47 respectively. After 14 April, when the strikers returned to work at the operator 1 positions, GHR transferred some of their replacements from operator 1 positions to operator 2 positions, but continued to pay them at the rate for operator 1 How- ever, GHR continued to pay all other operators 2, in- cluding the former strikers, at the 2 rate. 2. Analysis and conclusions The General Counsel contended that GHR violated Section 8(a)(5) and (1) of the Act by unilaterally enroll- ing the strike replacements in its own health insurance program, rather than in the Union's program, and by paying strike replacements classified as operators 2 at the rate prescribed for operators 1, all without giving the Union notice and opportunity to bargain about these changes. The General Counsel also urged that by this same conduct GHR engaged in discrimination which violated Section 8(a)(3) and (1) of the Act. GHR argues that its conduct did not violate the act on the grounds that the strike precluded the strike replacements from en- rolling in the union-administered health insurance pro- gram, and that the 1978 collective-bargaining agreement permitted GHR to remove strike replacements from the operator 1 classification to the operator 2 classification and continue to pay them at the I rate. For the reasons stated below, I agree with the General Counsel's conten- tions. GHR's bargaining obligation under Sections 8(a)(5) and 8(d) of the Act required it to refrain from changing the wages, hours or other terms and conditions of em- ployment of unit employees without first giving the Union an opportunity to bargain about them. NLRB v. Katz, 369 U.S. 736, 741, 742-743 (1962); A.H. Belo Corp. v. NLRB, 411 F.2d 959, 970 (5th Cir. 1969), cert. denied 396 U.S. 1007 (1970). It is also well settled that after a collective-bargaining agreement has expired, the union continues to represent all the employees in the bargain- ing unit including strike replacements. Leveld Wholesale, 1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 218 NLRB 1344, 1350 (1975). Further, a strike does not permit an employer to avoid its bargaining obligation. NLRB v. J. H. Rutter-Rex Mfg., 245 F.2d 594, 596 (5th Cir. 1957); M. A. Harrison Mfg. Co., 253 NLRB 675, 684 (1980). Granted that the Court in Williamsburg Steel Products Co., 369 U.S. at 747-748 (1962), noted "the possibility that there might be circumstances which the Board could or should accept as excusing or justifying unilater- al action...." However, neither the strike, nor the con- comitant picket line precluded GHR from making an effort to notify the Union of its intent to enroll the strike replacements in the GHR-administered health insurance program, and give the Union a reasonable opportunity to bargain about the matter. There was no showing that GHR attempted to contact the Union. Indeed, GHR did not assert that it had. I therefore find no merit to GHR's contention that the strike precluded it from discussing the enrollment of the strike replacements in the union-ad- ministered health insurance program, and therefore per- mitted GHR unilaterally to enroll the strike replacements in its program for nonunit employees. The 1978 contract's Article XXXIV entitled "Wages and Benefits" provided an hourly wage rate of $9.22 for the operator 1 classification and a rate of $8.74 for opera- tor 2. -However, according to GHR's Jerry Deutsch, who was personnel manager during the contract's life, Article X, Section 2 and Article XXV, Section 1 (a)-(f) of the 1978 contract, and past practice permitted GHR to transfer strike replacements from the operator 1 classi- fication to the operator 2 classification and continue to pay them as operator 1. The first provision Deutsch re- ferred to, Article X, Section 2, entitled "Classification of Work," provided in pertinent part: Work peculiar to a classification shall be performed by employees regularly assigned to that classifica- tion provided that when there is no work assigned to an employee in his classification, he may be as- signed to work in another classification. It is also understood that to expedite the job at hand, an em- ployee may be required to perform temporary work of another classification. ' Article XXV provided: ARTICLE XXV PERFORMANCE OF WORK BY PERSONS OUTSIDE THE BARGAINING UNIT Section 1. Persons outside the bargaining unit and not covered by this Agreement may perform work normally done by employees who are covered by this Agreement when: (a) Bargaining unit employees are not immediate- ly available and only for periods of time needed to secure a qualified bargaining unit employee to re- lieve him; or (b) Troubleshooting for quality purposes; or (c) Training or instructing employees in the pres- ence of the employee; or (d) On testing or experimental work; or (e) In the performance of necessary work when difficulties are encountered; or (f) An employee covered by this Agreement is not displaced; or (g) In an emergency where there is imminent danger to personnel or equipment. (h) It is consistent with past practice in the use of employees outside the bargaining unit. I fmd no merit in Deutsch's explanations. First, Article X, Section 2 permitted GHR to transfer unit employees from one classification to another either "when there is no work assigned to an employee in his regular classifi- cation" or "to expedite the job at hand." However, GHR did not satisfy either of these conditions. GHR did not show that at the time it transferred the strike replace- ments from the operator 1 classification to the operator 2 classification there was no operator 1-type work avail- able for *them. Further, GHR did not show that it trans- ferred the strike replacements to the lower classification "to expedite the job at hand. . . ." Thus, GHR has not satisfied me that Article X, Section 2 of the 1978 con- tract permitted it to raise the contractual wage rate for operators 2 unilaterally. Moreover, I find that under the following language of Article XII, Section 13 of the contract, GHR was obli- gated to pay the operator 2 rate to those strike replace- ments, when it transferred them to that classification: Within fourteen (14) calendar days of being award- ed a new classification or when he begins working on a newly awarded classification, whichever is sooner, the employee will begin receiving the appli- cable rate of the new classification. Thus, when Deutsch admitted that GHR hired the strike replacements and paid them as operators 1 and then re- duced them to the operator 2 classification without re- ducing their wages accordingly, he spelled out a viola- tion of Article XIII, Section 12. GHR's view that the strike replacements were "[p]ersons outside the bargaining unit and not covered by [the 1978 contract]" is wholly without merit. For under the settled principle stated above, even after the 1978 contract expired, the Union continued to represent all the employees in the bargaining unit, including the strike replacements. Leveld Wholesale, supra. It follows that Article XX, which discusses only the treatment of nonunit employees, did not provide authority for GHR's decision to pay strike replacements classified as operators 2 at operator 1 wage rates. Nor did the record support the asserted "past practice." There was no showing of a practice or any specific prior instance in which GHR, with the Union's assent, express or implied, unilaterally set or adjusted unit wage rates. In sum, I fmd that GHR did not satisfy its bargaining obligation under the Act when, without affording the Union an opportunity to bargain, it unilaterally enrolled the strike replacements in its nonunit health insurance program and again, when it unilaterally decided to pay strike replacements operator 1 wage rates after reclassify- ing them as operators 2. Accordingly, I also find that by GHR ENERGY CORP that unilateral conduct, GHR violated Section 8(a)(5) and (1) of the Act. Burlington Homes, 246 NLRB 1029, 1030 (1979). By affording strike replacements an opportunity to enroll in a health insurance program under which they were not required to make any premium payments, and not offering the same opportunity to returning strikers, and by paying strike replacements classified as operators 2 the rate for operator 1, while all returning strikers em- ployed as operators 2 received only the contract rate, GHR engaged in conduct likely to have a destructive impact upon its employees' right to strike or otherwise support the Union. NLRB v. Erie Resistor Corp., 373 U.S. 221, 226 (1963). I conclude therefore that by this conduct GHR violated Section 8(a)(3) and (1) of the Act. Bur- lington Homes, supra at 1030. C. The Training Program 1. Facts? The Union and GHR, in an effort to upgrade bargain- ing unit maintenance employees to the "Mechanic A" classification provided for a training program in their 1978 contract. A memorandum of agreement attached to the contract stated that: All present Laborers, Helpers, Warehousemen, 2nd Class Mechanics and 1st Class Mechanics on the payroll as of February 28, 1978 shall be given the opportunity to qualify for Mechanic "A" classifica- tion during the term of the Agreement During contract negotiations on 14 February, GHR's counsel, John A. Meagher, began the session with re- marks about the training program. He expressed his un- derstanding that the Union favored the program's termi- nation. Instead, the Union expressed displeasure with GHR's administration of the training program A union negotia- tor, Gail Simmons, answered that the Union favored the program's termination "As long as it was conducted in the manner it had been!" Union Representative James E. Bergeron expressed the same sentiment at the negotiating session of 14 February International Representative Jimmy Roan, who was the Union's spokesman at the ne- gotiations from 15 January until 28 April, also told Meagher "that the Union would not be willing to extend [the training program] under the present manner of oper- ation." Roan admitted that the Union did not propose another manner of operation "because the original manner it was negotiated under, under the old contract, was sufficient to run the operation under that procedure." Instead, I find from Roan's testimony, that beginning in mid-Febru- ary, the Union proposed that the training program end and that all bargaining unit maintenance employees re- ceive a mechanic "A" classification. GHR agreed that the training program would end upon the 1978 contract's expiration. However, GHR re- 7 Except, as noted below, I based my findings of fact upon testimony of Jimmy Roan, James E Bergeron, John A Meagher and Jerry Deutsch 1025 jected the Union's view that GHR should classify all trainees as first class mechanics regardless of their actual qualification The parties discussed the training program again in contract negotiations at the end of February, immediate- ly before the strike, and again on 15 May The parties adhered to their former positions regarding the training program and upgrading employees, who had participated in the training program. During the session on 15 May, GHR's Meagher remarked that Union Rep- resentative Bergeron had "made it clear that the training program was over " It does not appear that Bergeron, who had first joined in the negotiations on 14 February, and had assumed leadership of the Union's negotiating team on 28 April, rejected Meagher's assertion.8 GHR's counsel, Meagher, suggested that GHR would upgrade some participants to first class mechanic and others up one classification, but not to first class mechanic. The Union, rejected this proposal, insisting that all partici- pants be upgraded to mechanic "A" and paid at the higher wage rate assigned to that classification. I find from Bergeron's uncontradicted testimony, that throughout the 1980 negotiations, the Union believed that GHR had not given the trainees an adequate oppor- tunity to upgrade their skills. Bergeron also credibly tes- tified that the Union sought to remedy GHR's neglect by insisting that GHR grant them first class mechanic's wages. Bergeron conceded that he made this demand "realizing fully that they were not first-class qualified people." Bergeron expected that if GHR capitulated on the wage issue, it would have an incentive to go on with the training to qualify as many of the trainees as possible for the mechanic "A" classification. However, Bergeron admitted that the Union never communicated these thoughts to GHR, and did not disclose to GHR its desire to extend the training program beyond 29 February, the 1978 contract's expiration date. When the 1978 contract expired on 29 February, GHR ended the training program In August, after bargaining with the Union about the matter, GHR terminated its maintenance department. 2. Analysis and conclusions Contrary to the General Counsel's contention, I find that GHR did not terminate the training program unilat- erally. The parties had agreed that 29 February would be the expiration date of the program. When that date ar- rived, the parties had not reached agreement to extend the program. Thus, the limitation expressed in their 1978 memorandum of agreement became operative. Therefore, I find that the termination of the training program was not the product of GHR's unilateral action, but rather the result of collective bargaining. I also find that in 1980, GHR afforded the Union ade- quate opportunity to discuss the possibility of extending the training program. Instead of addressing itself to sug- 8 Bergeron denied that Meagher had ever made such a remark to him However, Bergeron's colleague Roan, who seemed more certain of his answers, contradicted Bergeron and corroborated Meagher Meagher also impressed me as a careful and forthright witness For these reasons, I have credited Meagher rather than Bergeron 1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD gestions for improving the program, the Union repeated- ly stated that it wanted the program to end and insisted that GHR promote all of the trainees to the mechanic "A" classification. GHR refused. The Union persisted in this demand. Thus, as I see it, the focus of disagreement was not the training program, but rather the treatment of the trainees. The Union never suggested to GHR that the training program should continue on condition that GHR imme- diately upgrade the trainees. Instead, it hoped to goad GHR into extending the program by insisting on upgrad- ing the trainees to the mechanic "A" classification, re- gardless of their qualifications. However, as far as GHR knew, the Union had abandoned the training program and was now insisting that the trainees be upgraded re- gardless of qualification. GHR's refusal to agree to the Union's demand foiled the Union's tactic. This result did not provide ground for the General Counsel 's allegation. Accordingly, I shall recommend dismissal of the allega- tion that GHR violated Section 8(a)(5) and (1) of the Act by terminating the training program unilaterally. On 16 April, Union Representatives James E. Ber- geron and Jimmy Roan complained to GHR's Jerry Deutsch and John A. Meagher about the cessation of the breaker days. Bergeron reminded Deutsch and Meagher of GHR's commitment to comply fully with the 1978 contract, except for the arbitration clause. Deutsch argued that the 1978 contract did not provide for the breaker day policy. Bergeron called attention to the es- tablished practice which had also been the subject of a grievance settlement between the parties. GHR's records show that as early as 24 April, it paid three unit employees at the overtime rate for their re- spective breaker days. Thereafter on 1, 8, 15 and 22 May, GHR permitted unit employees to work breaker days at the appropriate overtime rate. I also find from the testimony of the General Counsel's witnesses Jimmy Roan, Glenn Gaubert, and Gail Simmons that they rec- ognized that GHR was implementing the breaker day program for at least some unit employees in May. Final- ly, Roan admitted that GHR agreed on 21 May to resume the breaker day program. D. The "Breaker Day" 1. Facts Prior -to the 1980 strike, GHR had established a system under which unit shift employees received 8 hours of overtime work every 28 days. This 8 hours of overtime resulted from the plant's continuous operation, 24 hours per day, 7 days per week . Under the so-called "breaker day" program GHR gave each unit employee the option of working 8 hours of overtime every 28 days at the overtime rate. A unit employee could either work the overtime or take the time off. If the employee took the time off, GHR would assign an extra employee to work the 8 hours. Between the inception of contract talks on 15 January, and the end of the strike on 14 April, GHR and the Union did not bargain about the breaker day system. However, GHR and the Union had occasion to discuss it. I fmd from Personnel Manager Deutsch's uncontra- dicted testimony that at the end of the strike, GHR ad- vised the Union that work schedules would not return to normal until "somewhere between 3 and 6 weeks." I fur- ther find from Deutsch's testimony that he told the Union that he was having "problems getting in touch with some of [the employees who had been on strike]." Jimmy Roan also admitted that in April, after the strike had ended, Deutsch "was agreeing to return employees to their original shifts after forty-five days." However, the breaker days' status seemed to be in doubt during the days immediately after the strike. On the first work day after the strike had ended, shift super- visor Carroll Evans informed employee Glenn Gaubert and others that henceforth they would not be working their breaker days. Employee Gail Simmons, who was on the negotiating team, received employee complaints about the termination of the breaker day program. Glenn Gaubert complained to the Union 's negotiating commit- tee that GHR was not adhering to the breaker day policy. 2. Analysis and conclusions The General Counsel argued that without giving the Union an opportunity to bargain, GHR unilaterally elimi- nated its breaker day policy, and thus violated Section 8(a)(5) and (1) of the Act. GHR did not deny that the Act required it to bargain with the Union before discon- tinuing the breaker day policy. NLRB v. Williamsburg Steel Products Co., 369 U.S. 736, 747 (1962); Allied Nod- ucts Corp., 218 NLRB 1246 (1975). Instead, GHR con- tends that it did not violate the Act on the ground that it did not discontinue the breaker day policy. I find merit in GHR's position. I agree that GHR's management gave the returning strikers ground for fearing that the breaker day program was in jeopardy. A shift supervisor told them that GHR was terminating the breaker day policy. One or 2 days later, Personnel Manager Deutsch told union representa- tives that the contract did not obligate GHR to maintain that policy. However, I find that GHR did not terminate the breaker day program. Instead, the record showed a brief hiatus after the strike ended. GHR gave breaker days to unit employees as early as 24 April, 10 days after the strikers began returning to work. I also fmd that GHR continued to grant breaker days to unit employees and that the program returned to its normal state on 21 May. Nor did the evidence pursuade me that GHR's treat- ment of the Union after the strike regarding the resump- tion of the breaker day program ran afoul of Sections 8(d) and 8(a)(5) of the Act. Thus, right after the strike, GHR told the Union that shift schedules would return to normal in "somewhere between 3 and 6 weeks." GHR also announced to the Union its intention to return unit employees to their original shifts "after 45 days." There was no showing that GHR avoided or foreclosed bar- gaining about its stated intentions or that it departed from its stated intentions without giving the Union a rea- sonable opportunity to bargain. I shall therefore recom- mend dismissal of the allegation that GHR violated Sec- GHR ENERGY CORP tion 8(a)(5) and (1) of the Act by unilaterally terminating the breaker day program. E. The Suspension and Discharge of Rene Elfer 1. The facts9 GHR employed Rene Elfer from January 1975 until 30 May, when Personnel Manager Deutsch terminated him. At the time of his discharge, Elfer, a member of the Union, was classified as an operator 1. From 1978 until his termination, Elfer was a union steward. In 1978, Elfer was a grievance committeeman. He also participated fully in the strike in March and April. On 6 March, the following letter from Elfer appeared in "L'Observateur," a local newspaper. Head beef Dear Editor. It's semi-understandable that a company like Good Hope Refineries cannot provide toilet facili- ties for many employees . But, it makes no sense when the owner, Jack Stanley, can spend tons of money on staff personnel, contractors, Rosemary James, Inc., a greatly expanded security force, nu- merous cameras and recording devices, etc ., to keep OCAW out, but has little to put into the preserva- tion of local safety, clean air, clean water or tolera- ble sound levels. Elfer wrote the quoted letter on his own initiative. On 7 May, the following letter from Elfer appeared in The Times-Picayune: Refinery at Fault LaPlace Editor, The Times-Picayune: It seems Good Hope Refinery is trying to poison the public's mind. By offering $25,000 reward for a conviction of sabotage (much more than even Judas received) it is 'implied that a great deal of damage occurred. Relative to the company's written and oral state- ments, during the first five weeks of the strike sabo- tage was impossible. No OCAW workers were in the plant. Everything went extremely well, that is, until it was time to return to the negotiating table. The company then filed an $82,000 damage suit against OCAW for acts of sabotage. My five-year experience with the refinery forces me to conclude that behavior like this is simply consistent with company policy-lacking honesty and integrity. Again, Elfer wrote the letter on his own initiative. Two days after this second letter appeared in The Times-Picayune, a foreman directed Elfer to appear in 9 There was no substantial issue of fact raised with regard to Elfer's suspension and discharge I based my findings of fact in this section of the decision upon Rene Elfer's and Personnel Manager Jerry Deutsch's testimony 1027 Jerry Deutsch's office. There, in the presence of a guard and employee John Vicknair, Deutsch complained about Elfer's attitude toward GHR and his letters to the news- papers. He described Elfer's writing as "vicious" and "cutting." Deutsch remarked that while Elfer had the right to express himself, GHR was not required to pro- vide him with a livelihood, and promptly suspended Elfer. Deutsch asked why Elfer had written the letters. Elfer replied in substance that as a union representative, he wanted to get its side of the story out in defense of its reputation and the reputation of its members. Thereafter, on 3 June, Elfer received the following letter from GHR, signed by Deutsch, announcing Elfer's termination effective as of 30 May: On May 8, 1980 in my office, in the presence of your Union Representative, Johnny Vicknair, you were suspended indefinitely without pay effective 7:00 p.m. As discussed with you, you were suspend- ed for making false and malicious statements calcu- lated to expose the Company to public contempt and/or ridicule. These statements were published on at least two different occasions and in two different local publications between the periods March 6, 1980 and May 8, 1980. The Company cannot tolerate this form of disloyal- ty and misconduct from its employees calculated to damage its business reputation and interests. The Company has completed its investigation as' to your actions cited above and has decided upon termina- tion effective immediately. At the hearing, Deutsch admitted responsibility for terminating Elfer. When asked to provide the reason for his action, Deutsch replied: "For a letter which he wrote to The Times-Picayune in May of 1980 which was publi- cized in its editorial column." When asked "what was wrong with that letter?" Deutsch replied: The letter was-basically disparaged the Company and Mr. Elfer alleged in his letter-alleged the com- pany lacked integrity and was dishonest. Following his termination, Elfer made an unauthorized entry upon GHR's premises in an automobile. In a crimi- nal proceeding growing out of this incident, Elfer was found guilty of criminal trespass to 2. Analysis and conclusions The General Counsel urged that Elfer's letter of 8 May constituted union activity and that GHR violated Section 8(a)(3) and (1) of the Act by suspending and then terminating him. GHR contended that its treatment of Elfer did not violate the Act on the grounds that his letter of 8 May was neither union nor concerted activity, but "was an attempt to disparage the company's business policies in a manner reasonably calculated to harm [GHR's] reputation and reduce its income (GHR's brief 10 In evaluating Elfer's testimony, I noted his conviction for trespass As this conviction did not involve dishonesty, it did not affect my assess. ment of Elfer's credibility 1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD p. 5)." I fmd, contrary to GHR, that Elfer's suspension and termination violated the Act. GHR's letter to Elfer and Deutsch's remarks to Elfer suggested that both letters provoked GHR to first sus- pend Elfer and then to terminate him. However, the timing of these responses and Deutsch's testimony show that it was Elfer's letter in The Times-Picayune of 8 May which was the direct cause of GHR's actions. Thus, GHR greeted Elfer's letter of 6 March with silence. However, 2 days after the second letter surfaced in The, Times-Picayune, Deutsch summoned Elfer to his office, scolded him about his letters and suspended him. Later, Deutsch's testimony and GHR's brief focused on the letter of 8 May. Thus, I find that although Elfer's first letter displeased GHR, it was his second missive which motivated GHR to punish him. GHR's contention that Elfer's letter of 8 May did not come within the protection of Section 7 of the Act"" overlooks the explicit language of the statute which af- fords employees the right to "assist labor organizations." By his letter to The Times-Picayune, Elfer was attempt- ing to assist the Union in the face of GHR's allegations that the Union was responsible for acts of sabotage against GHR's refinery. By his letter, Elfer expressly sought to defend the Union's image in the community. Surely, the Union's at- tempt to organize employees and gain strength among the Times-Picayune's readers would suffer if they be- lieved that Union's leadership sponsored, or encouraged its members to resort to sabotage or other unlawful con- duct as economic weapons in support of a strike. Elfer also wrote out of concern for the impact of GHR's litigation upon the Union's image among GHR's employees. These same employees had recently support- ed the economic strike referred to in the letter. GHR's damage suit was likely to convince bargaining unit em- ployees that they had saddled themselves with an irre- sponsible collective-bargaining representative, and cause them to distance themselves from the Union. The result- ing loss of employee support might be sufficient to weaken its bargaining position, and ultimately deprive the Union of its representative status. That Elfer acted alone in attempting to vindicate the Union and his fellow Union supporters did not deprive him of the protection of Section 7 of the Act. For as the Court recognized in NLRB. v. City Disposal Systems, 465 U.S. 822, 832-833 (1984): When an employee joins or assists a labor organiza- tion, his actions may be divorced in time, and in lo- cation as well, from the actions of fellow employ- ees. Because of the integral relationship among the employees' actions, however, Congress viewed each employee as engaged in concerted activity. The lone employee could not join or assist a labor orga- nization were it not for the related organizing ac- tivities of his fellow employees. Conversely, there 11 Sec. 7 of the Act provides in relevant part: "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activites for the purpose of collective bargaining or other mutual aid or protection." would be limited utility in forming a labor organiza- tion if other employees could not join or assist the organization once it is formed. Contrary to GHR, the Board's decision in Meyers In- dustries, 268 NLRB 493 (1984), does not apply to Elfer. In that case, the Board held that in the absence of a union and a collective-bargaining agreement, an employ- ee's assertion of a right that can only be presumed to be a matter of concern to his or her fellow employees is not concerted activity within the meaning of Section 7 of the Act. Thus, Meyers does not apply to an employee assist- ing a union. In the instant case, Elfer's letter to The Times-Picayune was designed to assist the Union in its role as bargaining representative. The economic strike in which he and other unit employees had recently joined had the same purpose. Here, indeed, was the concerted action envisioned by Congress when it enacted Section 7 of the Act. Nor do I find merit in GHR's contention that Elfer's letter to The Times-Picayune deprived him of the Act's protection because it disparaged GHR's business policies. The Court, in Linn v. United Plant Guard Workers of America, 383 U.S. 53, 61 (1966), observed that although the Board permits parties to labor disputes to make "in- temperate, abusive and inaccurate statements" about their opponents, the Board "does not interpret the Act as giving either party license to injure the other intentional- ly by circulating defamatory or insulting material known to be false. [Citation omitted.]" Accord: e.g., S-B Mfg. Co., 270 NLRB 485 (1984). Here, GHR has not shown that Elfer's letter contained assertions which he knew to be false at the time he issued it. Moreover, I do not fmd that his letter was "so flagrant, violent, or extreme as to render [Elfer] unfit for further service. (citations omit- ted)." Dreis & Krump Mfg., 221 NLRB 309, 315 (1975). GHR's reliance on the teachings of NLRB v. IBEW Electrical Workers Local Union Na 1229, 346 U.S. 464 (1953), is also misplaced. In that case, the Court held that the employer, Jefferson Standard Broadcasting Company did not violate Section 8(a)(1) of the Act when it discharged employees for publicly distributing hand- bills which disparaged Jefferson Standard's television broadcasts and had no discernable connection with a pending labor dispute. Here, Elfer's letter did not dispar- age GHR's products, or otherwise seek to impair GHR's relations with customers, suppliers or other business con- tacts. In addition, Elfer's letter was a clear manifestation of support for the Union in its dealing with GHR and the allegation of sabotage. I therefore reject GHR's con- tention that the result in NLRB v. Electrical Workers Local 1229, supra, should obtain here. In sum I find that by suspending and later terminating employee Rene Elfer, GHR interfered with, restrained, and coerced him in the exercise of his right to join or assist the Union, and also discriminated against him be- cause of his union activity. Accordingly, I find that GHR violated Section 8(a)(3) and (1) of the Act. S-B Mfg. Co., supra, 270 NLRB at 489. GHR ENERGY CORP 1029 F. The Disloyalty Policy 1. Facts12 During April and May, Personnel Manager Deutsch and GHR's president, John R. Stanley, discussed the need to draft a company policy on employee disloyalty Stanley asked if 'GHR "had a policy on loyalty or disloy- alty." Deutsch responded that from his point of view "it was relatively clear to the employees that they were ex- pected to be loyal to the company." At Stanley's sugges- tion, Deutsch drew up the following loyalty policy which GHR promulgated to its employees on 21 May.: POLICY STATEMENT ON DISLOYALTY Any actions or statements made by employees against the Company's interests which expose the Company to public contempt and/or ridicule or damages its business reputation or interferes with its ability to expand and grow shall be considered as disloyalty. It was GHR's intention to enforce this policy by discipli- nary action, including termination . GHR did not give the Union or its members any notice of its intent to promul- gate and implement the disloyalty policy. Nor did GHR give the Union any opportunity to bargain about the policy and its implementation. 2. Analysis and conclusions The General Counsel contended that GHR violated Section 8(a)(5) and (1) of the Act by unilaterally promul- gating and implementing its disloyalty policy. I find that the broad language of GHR's disloyalty policy, and the penalties, which GHR intended to impose upon viola- tions, impacted directly upon the unit employees' speech and conduct on and off GHR's premises, including their union activity or other concerted activity protected by Section 7 of the Act. I further find, from this effect upon the unit employees, that the disloyalty policy was a term and condition of employment of the bargaining unit em- ployees within the contemplation of Section 8(d) of the Act. Miller Brewing 'Co., 166 NLRB 831, 832 (1967), enfd. 408 F.2d 12 (9th Cir 1969); Timken Roller Bearing Co., 70 NLRB 500, 502 (1946), enf. denied on other grounds 161 F.2d 949 (6th Cir. 1947). Therefore, the Act required that GHR provide the Union with an opportu- nity to bargain about the new policy before imposing it on the unit employees. NLRB v. Williamsburg Steel Prod- ucts Co., 369 U.S. 736, 747 (1962). GHR argued that it had no duty to bargain with the Union on the ground that it was formulating a preexist- ing loyalty policy. If the record had established this de- fense, I would agree. Murphy Diesel Co., 184 NLRB 757, 762 (1970), enfd. 454 F.2d 303 (7th Cir. 1971). However, GHR's attempt to show the existence of an established loyalty policy fell short of the mark. In seek- ing to establish its defense, GHR relied upon Deutsch's testimony that "[t]he Company had always expected loy- 12 The facts regarding GHR's disloyalty policy are not in dispute In making my findings of fact regarding the disloyalty policy, I relied on Jerry Deutsch's testimony alty from its employees," and that the policy promulgat- ed on 21 May "was basically reducing to writing what the company had expected for years at the plant, and what had been mentioned before in other publications, but had never been memorialized into a formal policy." However, closer examination of Deutsch's testimony provided a different picture than that suggested by GHR. Thus, the excerpts of testimony upon which GHR relied, did not include Deutsch's further assertion that GHR "wanted to make it very clear as to what the com- pany expected from its employees and-what the compa- ny's position was." This language and his conversation with President Stanley showed that GHR did not have a definite policy prior to 21 May. For Stanley instructed Deutsch "to write a policy on disloyalty so there would not be any confusion." Deutsch's further testimony showed that he considered his task to be the drafting of a policy. Indeed, when Deutsch had completed this assignment , he asked Stan- ley: "if he had any changes or additions." In my view, Deutsch's testimony, when fully considered, showed that prior to issuance of the policy on disloyalty on 21 May, GHR had only an informal policy defining employee loyalty. His testimony showed that he transformed this ill-defined system of rules into a formal and definite statement of limitations on employee speech and con- duct, which was to be enforced by disciplinary action, including termination. In sum, Deutsch's disloyalty policy was a new rule affecting the unit employees and therefore was a mandatory subject of bargaining. Har- vard Folding Box Co., 273 NLRB 841, 848-849 (1984). Miller Brewing Co., supra, 166 NLRB at 831 fn. 1. GHR's reliance upon the Board's decision in Capital Times Co., 223 NLRB 651 (1976), was misplaced. In that case, the Board found that an employer did not violate Section 8(a)(5) and (1) of the Act, when it unilaterally imposed a code of ethics upon its bargaining unit em- ployees in an effort "to protect and enhance the credibil- ity and quality of its newspaper." Capitol Times Co., supra, 223 NLRB at 651. In reaching this conclusion, the Board held that the code of ethics was not a subject of mandatory bargaining because it had no impact upon the employees' wages and did not affect their terms and con- ditions of employment. Ibid. In the instant case, GHR's broad policy statement on disloyalty, which it intended to enforce by terminating or otherwise disciplining trans- gressors, imposed constraints upon the employees' speech and conduct, both at the GHR facility and elsewhere, in- cluding their participation in activity protected by Sec- tion 7 of the Act Thus, unlike the code of ethics in Cap- ital Times, supra, GHR's policy statement on disloyalty had a substantial impact upon its employees' terms and conditions of employment and was therefore a subject of mandatory bargaining. Equally without merit is GHR's further contention that under the 1978 collective-bargaining agreement, GHR retained its power to promulgate a disloyalty policy without bargaining with the Union To support its position, GHR relied upon the following portion of the mangement-rights provision in its 1978 contract with the Union. 1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Except as specifically abridged, delegated, grant- ed, or modified by this Agreement , or any supple- mentary agreements that may hereafter be made, all the rights, powers and authority the Company pos- sessed prior to the certification of the Union are re- iterated by the Company and remain exclusively and without limitation within the rights of manage- ment, and are not subject to the grievance proce- dure or arbitration, nor does the exercise thereof re- quire any prior discussion or negotiation with the Union. As I have stated above, the Union's right to bargain about terms and conditions of employment flows from the Act. Further, the Board, has recognized that any waiver of such a right must be "clear and unmistakable." Lamont's Apparel, 268 NLRB 1332, 1335 (1984). Here, the contract language upon which GHR relied did not constitute a "clear and unmistakable" waiver. The quoted clause contained no reference to a policy regard- ing employee loyalty, I find therefore that the quoted contract language did not qualify as a waiver of the stat- utory right to bargain about such a policy. I fmd, there- fore that GHR violated Section 8 (a)(5) and (1) of the Act by unilaterally promulgating its policy statement on disloyalty on 21 May. I also find that GHR by its policy statement on disloy- alty, excessively restrained its employees' union and other concerted activity protected by Section 7 of the Act, by imposing excessively broad restrictions upon their actions and statements. American Cast Iron Pipe Co., 234 NLRB 1126, 1130-1132 (1978), enfd. 600 F.2d 132 (8th Cir. 1979). See also, Linn v. United Plant Guard Workers Local 114, 383 U.S. 53, 62-63 (1966); and United Parcel Service, 230 NLRB 1147, 1150 (1977). Although the consolidated complaint did not allege that the disloy- alty policy statement unlawfully interfered with its em- ployees' rights under Section 7 of the Act, the matter was fully litigated and the facts support my findings Caruso & Ciresi, Inc., 269 NLRB 265 fn. 2 (1984). In finding that GHR's policy statement was excessive, I looked to the entire statement of policy which did not limit its proscriptions to malicious or vicious statements, or those false assertions designed to injure the employer's product. American Cast Iron Pipe Co., supra, 234 NLRB at 1131 . I also noted the portion which reads: "[o]r inter- feres with its ability to expand and grow. . . ." I find that employees reading that language were likely to infer that the prohibition extended to all employee speech, and conduct in support of the Union's economic demands or a union's demands for recognition and collective bargain- ing. For GHR might have considered such speech or conduct as interference with "its ability to expand and grow." Accordingly, I find that GHR violated Section 8(a)(1) of the Act by promulgating its policy statement on dis- loyalty. G. The Suspensions of John L. Vicknair and Richard E. Hodges, Sam LeBlanc's Letter, and GHR's Alleged Failure to Provide Information to the Union 1. Facts's GHR employed John L. Vicknair III, from June 1975, until it indefinitely suspended him on 30 May. At the time of his suspension, Vicknair was a No. 1 and No. 2 breaker operator. Vicknair joined the Union in November 1975 and became an active member . From 1976 until 1978, he was a member of the Union's safety committee. He assisted the committee chairman and made safety inspections of GHR's plant. Vicknair was also a steward from 1978 until his sus- pension on 30 May. During his stewardship, Vicknair represented two employees in disciplinary meetings with GHR's management. As steward, Vicknair represented employee Roy Homey in a disciplinary session with Per- sonnel Manager Jerry Deutsch, during the latter part of 1979. The issue was Homey's absences from work on 7 May. Vicknair also appeared in Deutsch's office with Rene Elfer. In this instance, GHR was considering Elfer's letter to The Times-Picayune, as ground for his termina- tion, which I have considered above. Vicknair became chairman of the Union's safety and health committee in 1978 and retained that position until his indefinite suspension. As chairman, Vicknair met monthly with GHR's representatives to discuss safety problems and hazards. Vicknair also filed complaints with the Occupational Safety and Health Administration (OSHA) and other Federal agencies. Early in 1979, Vicknair and employee Gail Simmons, who was vice president of the Union's local, filed a com- plaint with OSHA, after a plantwide inspection revealed safety problems which the Union and GHR could not re- solve. GHR's president, John Stanley, reported to Vick- nair, Simmons, and the Union that the complaint had im- paired GHR's insurance coverage with Lloyd's of London. He then assured Vicknair, Simmons, and the Union's International representative, Bergeron, that GHR would attempt to resolve the safety problems. Consequently, the Union requested withdrawal of the complaint on 16 February 1979. Later in 1979, Vicknair and Simmons filed three more complaints with OSHA regarding alleged safety viola- tions at GHR's refinery. Following OSHA's issuance of citations in these cases, GHR, OSHA, and Vicknair en- tered into settlement agreements. In each settlement, GHR agreed to pay a penalty for alleged violations. In August 1979, Vicknair complained first to GHR Su- pervisor Eddie McLeod and then to Superintendents Tom Grace and Glen Ireland, and Safety and Fire Pro- tection Manager Reggie Brown, and finally to President Stanley that a faulty exchanger in the plant's crude oil system had caused oil to be sprayed on employees. After Ss Except as noted below, there were no issues of credibility raised by the testimony regarding the facts presented here. GHR ENERGY CORP. Vicknair had presented his complaint to Stanley, GHR adjusted the exchanger to Vicknair's satisfaction. In September 1979, Vicknair signed a grievance and complained to President Stanley in the presence of man- agement members Glen Ireland , Tom Grace, and Reggie Brown, about a liquid propane gas tank. Vicknair told Stanley that a change in the pipe system associated with that tank had increased the line pressure to in excess of 300 pounds and that the pipe system was rated for only 150 pounds . Stanley agreed to remedy Vicknair's com- plaint. Later in the same month Vicknair observed that GHR had not reconnected a circulation line on the tank system and raised the matter with Superintendent Tom Grace. Grace rejected Vicknair 's contention that the circulation line was necessary to the system 's safe operation. Where- upon, Vicknair requested and obtained another meeting with John Stanley Vicknair explained his position. Su- perintendent Grace delivered a contrary argument, Stan- ley agreed with Vicknair and ordered the reconnection of the circulation system. At a safety meeting at the end of September 1979, Vicknair conversed about the tank problem with GHR's manager of safety and fire protection , Reggie Brown, who was a supervisor within the meaning of Section 2(11) of the Act. Brown asked if the Union was satisfied with the tank's condition . In substance , Vicknair an- swered yes. In the ensuing conversation , Brown warned Vicknair . "Johnny, you know, you best watch your step, `cause [Superintendent] Glenn [Ireland] and them is watching you. In November 1979, Vicknair met with Reggie Brown regarding a large fire at GHR 's east plant, involving a heater. Brown asserted GHR's intention during the next several days to prepare the heater for start up. Vicknair requested the x-rays and work list showing the work done on the heater Brown advised Vicknair to seek the information from an engineer , Walter Breakweith Vick- nair sought and obtained Breakweith's assurance that GHR would provide the requested x-rays and work orders. However, when GHR did not produce the x-rays, Vicknair enlisted the assistance of employee Richard E. Hodges. When Hodges failed, to obtain the x-rays, Vick- nair pressed Reggie Brown for them. Brown and Vicknair became embroiled in a discussion of the employees' concern about another fire or explo- sion because of faulty repair of the heater and the Union's need for the heater x-rays. Vicknair escalated the tension surrounding the discussion . He warned Brown "Well, we got several operators that are considering pos- sibly not starting up the heater cause they're this scared. " Brown retorted with a warning that GHR would discipline anyone who refused to start the heater. Vick- nair warned that the Union would "take it from there." One or two days later , GHR employees began ready- ing the heater for startup. Within a few days, Vicknair made the heater the subject of a complaint to OSHA. On or about 10 December 1979, Vicknair, in Reggie Brown's presence, assisted the OSHA inspector in exam- ining the disputed heater. While waiting for the inspector to retrieve some literature from his car, Vicknair and 1031 Brown stood talking at a GHR guard shack. Brown ad- vised Vicknair that he had "better cool it," as Vicknair had caused "too many problems for management." Brown warned that the first time Vicknair "messed up" Glen Ireland and other supervisors would "nail" him. During the strike, from 1 March until it ended on 14 April, Vicknair was the Union 's strike chairman. Vick- nair presided over the picket captains and saw to the manning of picket lines. Following the end of the strike in mid -April, Vicknair returned to work and resumed his plant safety responsi- bilities for the Union . However, GHR had changed his duties and supervision. On his first day back , GHR as- signed Vicknair to shift foreman Herman Schneider, in- stead of Oliver Vicknair (no relation to John), who had been John Vicknair's shift supervisor on the eve of the strike. GHR also changed his work assignment from firing heaters to unloading salt trucks. When John Vicknair asked Oliver Vicknair why GHR had changed his shift supervisor, Oliver answered that GHR made the change, hoping that it would "settle [John] down." Oliver Vicknair provided no explanation of his answer. In mid-May, Vicknair conferred with Wilton Dice, who had replaced Reggie Brown as GHR's safety man- ager on 21 April . 14 Vicknair criticized the location of a fabrication shop near process heaters at GHR's east plant Vicknair expressed concern about the high noise level at that location and the danger of fire and explo- sion. Dice and Vicknair also discussed the new arrangement under which Dice no longer reported directly to Presi- dent Stanley but, instead , to Superintendent of Oper- ations Glen Ireland. Vicknair expressed concern that Ire- land would sacrifice safety for production. ' Returning to his complaint about the fabrication shop's location, Vicknair urged relocation, and announced his readiness to seek OSHA's help in the matter . Dice said that GHR would look into Vicknair's concerns and get back to him Dice did not get back to Vicknair, whose suspension ensued on 30 May GHR employed Richard E . Hodges (referred to as Ricky Hodges in the complaint) from 6 September 1976 until it suspended him on 29 May At the time of his sus- pension, GHR employed Hodges as a board operator, under shift foreman Herman Schneider. Hodges joined the Union immediately after his proba- tionary period and remained a member until his suspen- sion on 29 May. He was a steward for 1 year , from 1979 to 1980. During his stewardship, Hodges filed grievances against GHR on behalf of himself and his fellow employ- ees. He also made suggestions to supervisors and superin- tendents regarding employee health and safety. In September 1979, Hodges filed a grievance for him- self and two other employees regarding Tank 130. Hodges complained that GHR had changed this tank from propane storage to gasoline operations without dis- 14 The parties stipulated, and I find, that Dice was a supervisor within the meaning of Sec 2( 11) of the Act 1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cussing it with the Union as the 1978 contract re- quired. 16 Specifically, Hodges believed the parties should have discussed whether the change would require the addition of a unit employee or only the addition of a task to an employee's job- description. Hodges did not pursue this grievance further and did not learn of its result. In his second grievance, Hodges alleged that an engi- neer, Raj Kilkarney, who was not a bargaining unit em- ployee, had performed unit work. t 6 Again, Hodges did not know the outcome of this grievance. In November 1979,• Hodges filed another grievance against Kilkarney. Hodges complained that Kilkarney had assigned maintenance employees to perform work which operations employees usually performed . Hodges also claimed that this misassignment impaired safety. Hodges filed two more grievances . However, he could not recall their subject matter. Hodges also concerned himself with plant safety. At least once each week during his employment at GHR, he discussed safety hazards with supervisors. In the spring of 1978, he persuaded management to eliminate a fire hazard. Later that same year, at the request of a union health and safety committeeman, Hodges concerned himself with an OSHA plant inspection. In the course of the in- spection, GHR's then safety manager, Bob Pierce, pres- sured Hodges to stop pointing out hazards to the OSHA inspector.* Nevertheless, Hodges showed several more hazardous situations to the inspector, who looked at only about half of the plant before leaving . Thereafter, Oper- ations Superintendent Pete Deshelley told Hodges that, thanks to Hodges, GHR suffered a $5,000 fine, and that, because of him, GHR would not grant a Christmas bonus to the union employees. Throughout his employment at GHR, Hodges voiced safety complaints to his shift foreman, Herman Schnei- der. At the end of November 1979, a GHR furnace caught fire. Two or three days later, Schneider advised Hodges that the furnace was repaired and that manage- ment wanted the furnace back in service. Schneider di- rected Hodges and the other employees, who were present, to light it that night. Hodges protested that the repairs to the furnace were -inadequate. Schneider re- plied, that he understood how Hodges felt, but that the employees would suffer "disciplinary action" if they did not light the furnace.. Following his discussion with Foreman Schneider, Hodges consulted Health and Safety Chairman John Vicknair. Vicknair advised Hodges to comply carefully l a Art. III, sec. 11 provided: In the event the Company installs new processes or materially changes the existing process in a department , the Company shall meet with the Union to determine if such new installation is to be a new department or an addition to the already existing departments. In the events the parties cannot resolve the issue, the initial vacan- cies shall be filled from plant-wide bidding. • 16 Art. XXV of the 1978' contract provided in pertinent part: Section 1. Persons outside the bargaining unit and not covered by this Agreement may perform work normally done by employees who are covered by this Agreement when: (a) Bargaining unit employees are not immediately available and only for periods of time needed to secure a qualified bargaining unit employee to relieve him; or.... and slowly with Schneider's order. Before lighting the furnace, Hodges told Schneider that he and- his col- leagues would light the furnace slowly, and under pro- test. In mid-December 1979, Hodges told Superintendent Billy Weemer that Superintendent Glen Ireland had la- belled Hodges and John Vicknair as "troublemakers" be- cause they had qualms about starting the furnace. Weemer said he knew about the accusation . Hodges denied the accusation and insisted that he and Vicknair were truly concerned about plant safety . Weemer said he would take the matter up with Ireland. On 25 December 1979, a second furnace suffered damage in a fire. Hodges advised his shift foreman, Schneider, that the furnace packing and valves should be changed. Hodges also inquired whether Schneider knew that the valves were damaged. In substance, Schneider told Hodges that he was aware of the damage to the valves but that GHR did not intend to change either the packing or the valves. After warning of the danger of fire and explosion, Hodges sought and received Schnei- der's consent to talk to Superintendent Weemer. Several days later, after the employees had restarted the furnace, Hodges confronted Weemer . Weemer con- ceded that the valves and the lack of packing had cre- ated a hazard, but asked Hodges to appreciate Weemer's position as a superintendent. Not to be denied, Hodges suggested that changing the packing in the valves would require no more than 15 minutes. Weemer rejected the suggestion. Thereafter, GHR changed the faulty valves. The misadventure of nonunion employee Chester For- tenberry early on the morning of Saturday, 24 May, led to GHR's decision to suspend Vicknair and Hodges in-. definitely on 30 May. GHR hired Fortenberry in March, during the strike, and employed him as a No. 12 operator in its utilities department. Fortenberry's duties included opening and closing valves and testing water samples. On 24 May, beginning at 2 or 3 a.m., Fortenbery suf- fered harassment, while working at GHR's plant. During Fortenberry's shift on the night of 23-24 May, which was from 11 p.m. until 7 a.m., only one shift foreman and four employees, including Fortenberry , Vicknair, and Hodges were working in the same vicinity of the plant. Fortenberry also worked a second shift on 24 May, until 2' p.m., when he went home. He did not return to the GHR plant until 28 May, when he resigned. On the same day, he provided GHR with the following written statement regarding the events during his shift on 24 May, which had precipitat- ed his resignation: At about 3:00 AM Saturday Morning, May 24, 1980 I was in the utilities lab in the West Plant when the door was barred from the outside and then extremely high- pressure water was applied to the sides of the building which was approximately 10 X 10 X 5. Realizing the extreme danger that sur- rounded me, I immediately kicked the door open .and escaped to safety. Later on the same morning, I observed, from an elevated platform, that 3 quart bottles were being thrown at the building that I previously had occu- GHR ENERGY CORP. 1033 pied. After the area was cleared of the people who were harassing me, I noticed the area where the broken glass was had been saturated with kerosene. I believe this was intended to do grave bodily harm to me After returning back to my duty station, a strong odor, which could have been toxic because it irritat- ed my eyes and throat, was in the lab I believe that all of the above was due to the apa- thetic attitude of the shift foreman on duty and his neglect for the safety and welfare of myself and has caused me and my wife extreme mental and finan- cial distress. _ That same day, Fortenberry discussed his intention to resign with Superintendent Ireland and other supervisors. Fortenberry rejected offers of transfer saying: "Thank you, but no thank you." He then left Ireland's office and went to GHR's security office Security Supervisor Frederick J. Oubre, after listening to Fortenberry's report of his misadventure, presented a stack of individual photographs for Fortenberry's perus- al. Fortenberry identified Vicknair, Hodges, and employ- ee Bradley Emerson as "the guys that had been michie- vous on [his] shift.. . ." However, upon further reflec- tion, Fortenberry told Oubre that he was uncertain of Emerson's involvement, but that he was sure of Vick- nair's and Hodges'. Oubre's investigative report recited Fortenberry's iden- tification of Vicknair and Hodges and the following ac- count of his experience on the morning of 24 May: Mr. Fortenberry then advised that on Saturday, May 24, 1980 he was working inside a portable building used as a lab on the west plant by the con- trol room. He heard some subjects talking outside of the building when all of sudden something (liquid substance) started coming through the crack in the door. At this time, he jumped up and started to exit the building but the door would not open. Mr. For- tenberry then stated he panicked and stepped back and kicked the door and ran out Once he was out, he noticed that the door had been forced closed from the outside and that someone had put the fire monitor on and was shooting at the portable build- ing he was in Mr. Fortenberry stated that he felt the union employees working in operations had done this because they were the only employees working in that area. He then took his lunch and walked to the security guard shack and asked secu- rity officer Bill Stinnet if he could leave his lunch in the guard shack, which he did. Mr. Fortenberry did not tell security officer Stin- net what had happened Mr. Fortenberry then re- turned to the area of the incident and smoked a cig- arette in the smoking area. He then climbed up the tower next to the control room to see if anyone was around the portable lab. He then noticed 2 union employees standing by the control room. He identi- fied one as being Johnny Vicknair and the other as being Mr. Hodges. As he watched them, he noticed a quart bottle filled with liquid tossed into the air coming from the area where the 2 union employees were standing. Mr. Fortenberry said that he saw three bottles tossed as if they were thrown in an un- derhand fashion, one breaking next to a transformer which was fenced off in the back of the portable lab and the other two fell to the ground and broke right next to the portable lab. Mr. Fortenberry thinks the union employees thought he was inside of the building when the bot- tles were tossed. On 28 May, Fortenberry consulted Attorney Daniel E. Becnel regarding the circumstances which caused him to resign. By letter of 29 May, to Superintendent Ireland, Becnel announced Fortenberry's intention to file a civil action against GHR and to report the incident to the FBI. Becnel also stated that Fortenberry had named "Danny Hodges" and "Johnny Vicknair" as being "re- sponsible for the harrassment." I find from Jerry Deutsch's testimony that GHR did not receive Becnel's letter until after he had suspended Vicknair and Hodges on 30 May. However, I also find from Vicknair's testi- mony and Security Supervisor Oubre's report that on that date, GHR's Deutsch was aware that Fortenberry had contacted Attorney Becnel and was considering a suit against GHR. On 28 May, Fortenberry also told Deutsch about the incident of 24 May. Fortenberry repeated essentially what appeared in Oubre's report. On the evening of 30 May, prior to the commence- ment of their 11 p.m. to 7 a.m. shift, Deutsch summoned Vicknair and Hodges to the main office. There, in a con- ference room, in the presence of security guard Fred Carter, Security Supervisor Oubre and employee Lionel Comeau, who was representing the Union, Deutsch an- nounced Fortenberry's resignation and his allegation of harassment . Deutsch also reported that Fortenberry had contacted Attorney Becnel, and might sue GHR. Deutsch told Vicknair and Hodges of Fortenberry's complaint that he had suffered harassment. He also told them that Fortenberry had named them as his torment- ers. 17 Vicknair and Hodges denied the allegations . However, they rejected Deutsch's offer of polygraph tests. Deutsch suspended them immediately pending further investiga- tion. Deutsch instructed Vicknair and Hodges to return their badges to GHR's security office. He also agreed to permit them to remove their personal items from the 17 Vicknair testified that Deutsch had stated that Fortenberry had named Vicknair, Hodges "and several others " However, Oubre's report and Deutsch's testimony showed that Fortenberry incriminated only Vicknair and Hodges Also, Hodges' account of Deutsch's remarks did not corroborate Vicknair's version I find it unlikely tht Deutsch, whose testimony evidenced a good grasp of Fortenberry's complaint, said any- thing about "several others " In assessing Vicknair's credibility, I noted that he seemed anxious to repeat his assertion that Fortenberry had ac- cused Vicknair, Hodges, and several other employees, but that Deutsch was addressing himself only to Vicknair and Hodges Further, on cross- examination , Vicknair seemed overly defensive and reluctant to admit any interest in whether Fortenberry was a union member. In sum, I re- jected Vicknair's testimony because his demeanor strongly suggested that he was partial to the General Counsel's cause 1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD plant, under escort by a security guard. Hodges accepted the opportunity to gather up his belongings . He went into the plant area with guard Fred Carter .' 8 Oubre es- corted Vicknair to the plant parking lot , checked the trunk of Vicknair's automobile, took his I.D. badge, and watched Vicknair leave.' 9 Thereafter, GHR kept Vicknair and Hodges on indefi- nite suspension. At an unemployment hearing, which the State of Louisiana conducted on or about 30 July, Per- sonnel Manager Deutsch testified that he was investigat- ing the Fortenberry incident. I find from Deutsch's testimony, that from 30 May until 30 July, two or three employees, hired during the strike, complained of harassment and abuse by other em- ployees. The complainants did not know the names of their assailants. However, they provided physical de- scriptions, one of which Deutsch identified as being Vicknair's. Employee Vernon Mars complained about two inci- dents of harassment, one in early May, and, a second at a later date, which Deutsch could not recall . Deutsch con- cluded from Mars' description that Vicknair was respon- sible for both incidents. On 9 June, International Representative Jimmy Roan, by a letter, on the Union's behalf, requested information from GHR regarding the Vicknair-Hodges suspensions. One week later, GHR responded, sending Fortenberry's statement, Attorney Becnel 's letter and Oubre's report to the Union. Roan explained that the Union needed the in- formation "to intelligently and effectively represent .. . Vicknair and Hodges and to properly evaluate the al- leged incidents resulting in their suspension." On 6 November, Roan, in a second letter for the Union sought further information regarding Vicknair's and Hodges' suspensions. Specifically, Roan asked for in- formation regarding "the progress of [GHR's] investiga- tion," "any evidence which [GHR] has received during the course of its investigation and which has not previ- ously been furnished to the Union" whether GHR had terminated Vicknair and Hodges and the dates and rea- sons for the terminations. According to Roan, the Union sought this information to protect Vicknair's and Hodges' seniority.20 GHR did not give a written response to the Union's second request for information . On 11 or 12 February 1981 , Personnel Manager Deutsch responded orally to the Union's local vice president, Gale Simmons. Under examination by counsel for the General Counsel, Deutsch portrayed his verbal response as follows: 18 Oubre testified that he thought "Bob Bartell escorted Hodges off the refinery." However, as he seemed uncertain, I rejected this testimony. Instead, I credited Hodges, who seemed to be giving his honest recollec- tion of his departure from the refinery. 1s Vicknair testified that Oubre remarked that there was insufficient evidence to show that Fortenberry had suffered harassment. However, as Oubre impressed me as the more candid witness, I credited his denial that he made such a remark to Vicknair. 80 Art. XXV, Sec. 2(9) of the 1978 contract provided in pertinent part; An employee's seniority shall cease of the employee: (9) Is off the Company's active payroll for any reason other than military service for more than eighteen (18) months. A. Well, as I said, I recall talking to several people about it. I talked to Gale Simmons. I feel like I had a • conversation across the bargaining table. I recall several occasions when we would dis- cuss pending disciplinary actions on Hodges and Vicnair after the May 29-or May 28 suspension. Every time we would have a discussion across the bargaining table, we would review who was out on suspension, who had been- terminated that the union wished to have reinstated . And at that time they would ask-you know, anybody that was pending, they would ask the status of basically. So we had several discussions. It might have been with Bergeron. It might have been with Sim- mons. It might have been with Jimmy Rowan. But at that point all responses from the company on the Vicnair/Hodges were verbal. Q. Do you specifically recall talking to Jimmy Rowan, who sent you the letter, and responding to him about what he requested in this letter? A. Only from the standpoint of him being in a bargaining session, sitting at the table alongside of Simmons or Mr. Bergeron. At that point in time, most of the conversation came from Mr. Bergeron and Mr. Simmons on behalf of the union. So that's who I would have been talking to. Q. Did you tell Mr. Rowan verbally that you be- lieved the-your conversation with Vernon Mars had given you reason to keep the investigation open? A. No. Q. Well, this was further evidence to you that you thought Johnny Vicnair was guilty or some- thing, wasn't it? A. No, I didn't say that. I said that it was part of my continuing investigation, and that there were employees who were coming forward and telling me that they were being harassed-or had been har- assed in the plant. And Mars was one of them. I was not about to give the union Mars' name. I find from Roan's testimony that he never received any reply to his letter of 6 November to GHR. I also find from my appraisal of Deutsch's vague, tentative and at times speculative, reminiscences, that GHR never pre- sented any oral response to the Union's second request for information regarding Vicknair and Hodges. On 11 or 12 February 1981, Deutsch told the Union that GHR "would be willing to polygraph [Vicknair and Hodges]" and that GHR would not offer reinstatement to them until they took the polygraph tests or unless new evidence cleared them. There was no showing that GHR has since changed its attitude in this regard. Following their suspensions, Vicknair and Hodges were active as union spokesmen on environmental issues. On 5 June, Vicknair testified before the Louisiana Envi- ronmental Protection Agency at Hahnville , Louisiana, as the Union's representative and as chairman of the Union's Health and Safety Committee at GHR . The pur- pose of this hearing was the investigation of pollution at the plant. Present at the hearing for GHR, were attor- GHR ENERGY CORP neys Michael Crow and Sam LeBlanc, President Jack Stanley and Jerry Deutsch. On 12 September, Vicknair testified on behalf of the Union before a United States Senate committee, in Wash- ington, D.C. GHR was unrepresented at this hearing. In his prepared testimony, Vicknair asserted that GHR had dumped pollutants "onto some Federally owned proper- ty known as the Bonnet Carre Spillway, which leads to Lake Ponchartrain." He also asserted that the "immedi- ate area" impacted by the pollutants was important for commercial crabbing and shrimp fishing. He complained about the "strong rotten egg odor" emanating from sludge taken from the bottom of GHR's settlement pond, and the high concentration of arsenic, chromium, and lead which it contained. Vicknair went on to assert that GHR had dumped "spent catalyst" into the Kenner Land Fill, without testing it for hazardous material, and that a Louisiana state agency had found high levels of chromium, arsenic and lead in the land fill. Vicknair told the committee that GHR had disciplined an employee for telling the State that GHR had directed him to dump "20,000 gallons of caustic" into a swamp and that a driver had died after unloading a quantity of the same substance at a hazardous waste dump. Vicknair ended by accusing GHR of being a "major polluter in South Lou- isiana" "which we believe to be the worst." On 13 September, The Times-Picayune published an article, on its front page, reporting its version of Vick- nair's testimony to the Senate committee . In addition to the remarks included in his prepared testimony, the newspaper asserted that he told the Senate committee that GHR continued to dump toxic waste because the fines were less costly than remedial action. In a second article in its 16 September edition, The Times-Picayune again summarized its earlier version of Vicknair's remark to a Senate committee. On or about 23 September, Vicknair received a letter from the law firm of Adams and Reese, signed by Attor- ney Sam A. LeBlanc. In its first paragraph, the letter called attention to Vicknair's statements before the Senate committee, to state officers and the media, con- cerning GHR's disposal of toxic waste into the Bonnet Carre Spillway. The letter complained that Vicknair's re- marks were "false and defamatory" and warned that GHR would institute a $6 million civil suit against him. Following his suspension, Hodges attended public hearing involving GHR. In June, as a union observer, Hodges attended an Environmental Control Commission hearing at which GHR was seeking a 90-day extension on a waste discharge permit, Vicknair was also present as a union observer. Attorney Sam LeBlanc represented GHR. In the course of the proceedings LeBlanc and Hodges exchanged nods. In July, Hodges and Vicknair attended a rezoning hearing involving GHR as the union's observers. Present for GHR were Deutsch, Stanley, and attorney Michael Crow, who also represented GHR. Attorney LeBlanc did not appear on GHR's behalf. In September, Hodges attended another Environmen- tal Control Commission hearing and a second zoning hearing. In both instances, Hodges was a union observer, Jack Stanley, attorney Michael Crow, and several em- 1035 ployees were present for GHR at the rezoning hearing. Sam LeBlanc represented GHR at the Environmental Control Commission hearing. 2 Analysis and conclusions The General Counsel urged that GHR indefinitely sus- pend Vicknair and Hodges because of their activities on the Union's behalf. GHR argued that it suspended Vick- nair and Hodges indefinitely because they engaged in gross misconduct. In my opinion, the General Counsel has failed to sustain her burden of showing the alleged unlawful motive by a preponderance of the evidence re- garding the suspensions. Wright Line, 251 NLRB 1083, 1088 fn. 11 (1980), enfd. on other grounds 662 F.2d 989 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Beyond question, GHR's management was displeased by Vicknair's and Hodges' complaints regarding health and safety matters. In September and November 1979, Reggie Brown issued a warning to Vicknair suggesting that Superintendent Glen Ireland and other supervisors were looking for an excuse to punish him. In December 1979, Superintendent Weemer conceded to Hodges that Ireland considered Vicknair and Hodges to be trouble- makers because of their complaints about a hazardous furnace. In April 1980, Foreman Oliver Vicknair re- vealed that GHR had changed John Vicknair's shift from day to night, in an effort to "settle him down." Under Wright Line, supra, 251 NLRB at 1089, once employer opposition to union activity has been shown to be a motivating factor in a decision to discharge an em- ployee, an unfair labor practice is established unless the employer can show, as an affirmative defense, that the employer would have taken the same action even in the absence of protected activity. Applying the Wright Line test here, I find that Person- nel Manager Deutsch based his decision to suspend Vick- nair and Hodges indefinitely upon Fortenberry's state- ments, written and oral, and GHR's security investiga- tion showing that Vicknair and Hodges had harassed Fortenberry on the morning of 24 May 1980. Also, con- trary to the General Counsel's assertion, I find that For- tenberry unequivocally identified Vicknair and Hodges to GHR as his assailants. Although Deutsch was part of GHR's management, there was no showing that he shared Superintendent Glen Ireland's reported hostility toward Vicknair and Hodges. Nor was there any showing that Glen Ireland or any other line supervisor who had been involved with Vicknair's and Hodges' safety complaints had participat- ed in the decision to suspend them. Granted that GHR did not pursue Fortenberry's alle- gations in further discussion with Vicknair or Hodges after their suspension on 30 May. However, both em- ployees rejected Deutsch's suggestion that they submit to polygraph tests regarding the Fortenberry incident. Fur- ther, although Fortenberry and Hodges, on 30 May, denied having engaged in any misconduct against For- tenberry, they did not offer to prove their innocence. Vicknair suggested that a subcontractor's employee had already damaged the door prior to Fortenberry's attempt to break out of the utility building on the morning of 24 1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD May. Vicknair also attempted to blame the evidence of broken glass near the utility building on the carelessness of other operators. However, the record is bare of any offer by Vicknair or Hodges to provide rebuttal wit- nesses to establish their innocence . Nor did they offer a detailed account or statement showing their activities during the early hours of 24 May. Neither Vicknair nor Hodges presented any evidence casting doubt on the es- sential elements of Fortenberry's allegations. In sum, the General Counsel has not shown that GHR suspended Vicknair and Hodges because of their union activities rather than for cause . Accordingly, I conclude that GHR did not violate Section 8(a)(3) and (1) of the Act by suspending employees Vicknair and Hodges in- definitely. Nor am I persuaded that the General Counsel has shown that but for their public appearances on the Union's behalf after 30 May, GHR would have offered reinstatement to Vicknair and Hodges. The record shows that GHR was hostile to employee criticism of its poli- cies, when such criticism appeared in newspapers and at public hearings. LeBlanc's warning letter to Vicknair on GHR's behalf reflected such hostility. However, there was no showing that this hostility motivated GHR to withhold reinstatement . Nothing in LeBlanc's letter sug- gested that Vicknair's outspoken criticism caused GHR to withhold reinstatement from Vicknair. Nor was there any other evidence that GHR was withholding reinstate- ment because of Vicknair's and Hodges' criticism. On the contrary, in February 1981, Deutsch told the Union, in substance, that if a polygraph test or other new informa- tion vindicated them, GHR would reinstate Vicknair and Hodges. I find, therefore, that GHR's failure to reinstate Vicknair and Hodges did not violate Section 8 (a)(3) and (1) of the Act. The General Counsel also contended that GHR violat- ed Section 8(a)(1) of the Act by threatening to bring a lawsuit against Vicknair because he engaged in activity protected by Section 7 of the Act. GHR urged rejection of this contention on the ground that Vicknair's utter- ances were false and malicious. GHR also argued that LeBlanc's letter was not attributable to GHR because the record did not show LeBlanc was GHR 's agent when he issued it. For the reasons stated below, I find that LeB- lanc's .letter did not violate the Act. Turning first to the suggestion that LeBlanc's letter was not attributable to GHR, I find ample evidence to show that he acted as if he were GHR's agent. Personnel Manager Deutsch admitted that LeBlanc worked for the law firm representing GHR in September, I also note, that when Vicknair was present, LeBlanc acted as GHR's representative at the Environmental Protection Agency hearing on 5 June. LeBlanc acted as GHR's rep- resentative again, in Vicknair's and Hodges' presence, at an Environmental Control Commission proceeding during the same month . Finally, in September, LeBlanc acted as GHR's representative at a second Environmen- tal Control Commission hearing attended by Vicknair and Hodges. I fmd from Deutsch's admission , and LeBlanc's ap- pearances at public proceedings as GHR's representative that Vicknair and Hodges were likely to identify LeB- lanc as a spokesman for GHR . I find, therefore, that LeBlanc's letter threatening Vicknair with a lawsuit was attributable to GHR. Batavia Nursing Inn, 275 NLRB 886 125 fn. 2 (1985). The next question presented is whether GHR's letter to Vicknair infringed upon the kind of concerted activity which Sections 7 and 8(a)(1) of the Act protect from em- ployer interference. Specifically, the letter referred, to Vicknair's statements regarding GHR's disposal of toxic waste into the Bonnet Carre Spillway which leads into Lake Ponchartrain. These statements appeared in his re- marks to a U.S. Senate committee, and were published in two newspaper articles. The remarks to which GHR ob- jected, called attention to the impact of GHR's alleged misconduct upon shrimp fishing, crabbing, and other rec- reational pursuits in or near Lake Ponchartrain. There was no reference to the effect such hazardous wastes would have upon GHR's employees. Instead, Vicknair called attention only to the effects of the alleged hazard- ous waste-dumping upon the general community. The Court, in Eastex, Inc. v. NLRB, 437 U.S. 556, 566 (1978), recognized that the language of Section 7 of the Act extended protection to employees seeking "to im- prove working conditions through resort to administra- tive and judicial forums [footnote omitted], and that em- ployees' appeals to legislators to protect their interests as employees are within the scope of this clause." The remarks to which GHR took offense in its letter to Vicknair were not aimed at persuading the Senate to improve the working conditions of GHR's employees. Instead, Vicknair and the Union called attention to the dangers they perceived to water flowing into Lake Pon- chartrain. Thus, Vicknair and the Union were not ap- pealing to Congress to protect the interests of union members as employees. I fmd that under the teachings of Eastex, Section 7 of the Act did not protect Vicknair's remarks to the Senate committee. Accordingly, I find that GHR's letter threat- ening to bring a court action against him because of these remarks did not violate Section 8(a)(1) of the Act. The General Counsel contended that GHR violated Section 8(a)(5) and (1) of the Act by failing to provide the Union with information regarding GHR's investiga- tion of Vicknair's and Hodges' alleged misconduct, and by not advising the Union as to whether Vicknair and Hodges had been terminated and if so when and for what reasons, all of which the Union requested in its letter of 6 November. GHR urged dismissal of this alle- gation on the ground that the record did not show a fail- ure to comply with the Union's request. I find merit in the General Counsel's contention. In NLRB v. Acme Industrial Co., 385 U.S. 432, 435 (1967), the Court recognized that an employer's duty to bargain in good faith includes the obligation to furnish relevant information necessary to enable the collective- bargaining representative, either before or after a con- tract is concluded, to discharge its function intelligently and effectively. Here, GHR did not question the rel- evance of or the need for the information sought in the Union's second request dated 6 November . Further, the Union has satisfied me that it needed the requested infor- GHR ENERGY CORP. matron to determine if Vicknair's and Hodges' seniority was in danger under the terms of the expired contract, which remained in effect, and to protect it, if necessary. I also find that in this second request, the Union was attempting to update the information which it had re- ceived from GHR on 16 June. Thus, I find no merit in GHR's position that it had provided the Union with all the information it had, by its response to the Union's first request and Deutsch's remark to the Union. Deutsch's admissions, and Roan's credited testimony, showed that GHR did not provide the Union with sup- plemental information requested in the Union's second letter. GHR did not respond to the Union's request for a report on the progress of its investigation regarding Vicknair and Hodges. Nor did GHR reply to the Union's request for any additional evidence. Finally, GHR did not inform the Union "as to whether . . . Vicknair and Hodges [had] in fact been terminated." Indeed, I find that GHR provided no response to the Union's second request for information. I further find, therefore, that by not furnishing the necessary and rele- vant information which the Union requested in its letter of 6 November, GHR violated Section 8(a)(5) and (1) of the Act. L. M. Settles Construction Co., 259 NLRB 379, 383 (1981). H. Gail Simmons' Discharge, GHR's Alleged Refusal to Meet with Simmons, and GHR's Alleged Refusal to Furnish Information to the Union Regarding Simmons' Discharge 1. Facts2 i GHR employed Gail Simmons from April 1975 until it discharged him on 17 July From April 1975 until Janu- ary, Simmons was an instrument technician In January, GHR honored his bid for a job in its warehouse, where Simmons remained until his Discharge. On three occasion, GHR supervisors praised Simmons' work. In November or December 1979, Operations Su- perintendent Glen Ireland complimented Simmons for his assistance in resolving a problem which other instru- ment technicians could not solve. On another occasion, Refinery Manager Frank Alvin expressed appreciation for Simmons' solution of a problem arising from a valve critical to production. In January or February, Personnel Manager Jerry Deutsch spoke favorably of Simmons to another employer who was considering Simmons for em- ployment. Prior to his discharge, Simmons had not suffered disci- plinary action at GHR's hands since 9 November 1978. On that occasion, he received from Deutsch a written warning for engaging in union activity on company time. The warning notice also gave an explanation of the 3- day suspension, without pay, which GHR had imposed on him for the same conduct. Further, the notice remind- ed Simmons that GHR had "on at least three different occasions" counseled with him about engaging in unau- thorized union activity on company time. 21 Except as noted, there were no issues of fact raised by the testimony of regarding Simmons' discharge or the other allegations I shall cover in section H of this decision 1037 On 13 November 1978, Simmons filed a grievance al- leging that his 3-day suspension violated the collective- bargaining agreement. In May 1979, GHR settled the grievance and paid to Simmons the 3 days' pay he had lost due to the suspension. During his employment, Simmons was a prominent union activist. In June 1976, he was elected Group Chairman of Local 4-447. This office was the equivalent of president of the portion of the Union made up of GHR employees. His correspondence shows that he also was designated as vice president of the Local. Simmons remained group chairman until January 1981. His duties included enforcement of the Union's contract with GHR, the filing of grievances for employees, and' contract ne- gotiations. On occasion, he represented employees at dis- ciplinary interviews. In September 1978, GHR's personnel manager, Deutsch, called Simmons to his office after employee Gary Sullivan had requested Simmons to represent him in a disciplinary interview. Deutsch warned Simmons that he would need union representation. In subsequent unfair labor practice proceedings, an administrative law judge, the Board, and the United States Court of Ap- peals for the Fifth Circuit agreed that Deutsch's warning had violated Section 8(a)(1) of the Act. Good Hope Re- fineries, 245 NLRB 380, 384 (1979), enfd. 620 F.2d 557 (5th Cir. 1980), cert. denied 449 U S. 1012 (1980) Simmons participated in the negotiations which result- ed in the contract which GHR and the Union executed on 1 March 1978. He also chaired the negotiating com- mittee during the 1980 negotiations with GHR and at- tended all the bargaining sessions. Simmons recommended that GHR's employees go on strike, when the 1978 contract expired. He also partici- pated in the strike which began on 1 March and ended on 14 April. During his first 2 years as group chairman, Simmons filed 75 to 100 grievances per year. In 1979, he estab- lished a steward system, assigning one steward to each shift. Under this system, the Union processed a larger number of employee grievances Simmons also showed interest in employee safety During his tenure as group chairman, Simmons filed four or five complaints against GHR with OSHA (Occupa- tional Safety and Health Administration). In February 1979, he joined with John L. Vicknair, the chairman of the Union's Health and Safety Committee, to file a com- plaint against GHR. In 1980, between the end of the strike, on 14 April, and his discharge on 17 July, Simmons attended a com- munity meeting at which a GHR rezoning request was under discussion.22 GHR had called for the meeting to 22 On direct erxammation, Simmons testified initially that he attended the community meeting in "January or February of 1980 " However, after further reflection, he testified that he could not remember whether the community meeting had occurred before or after the strike Finally, under cross-examination on the following day, when asked when the community meeting occurred, Simmons, who impressed me as a candid witness, testified that to the best of his recollection, it occurred "some- where between April 14 and July 17, 1980 " As Simmons seemed to be giving his best recollection, after he had an opportunity to reflect on the time of this meeting, I have credited this later testimony 1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD explain its plan to build a tank farm. Simmons wished to express his views. However, before doing so, he asked a GHR attorney, who was present, for immunity from dis- ciplinary action. The attorney refused to grant such im- munity and Simmons withheld his intended remarks. In early 1979, Simmons noted that employees of TCP, a nonunion employer, were performing maintenance work at GHR's refinery. In March 1979, Simmons, on behalf of the Union, addressed two letters to GHR's per- sonnel manager, Jerry Deutsch, seeking information re- garding TCP, its employees and their work at the refin- ery. Deutsch responded to the first request by telling Simmons that the requested information was "none of the Union's business." The Union received no answer to its second request. In January 1980, Simmons again authored and signed a letter from the Union asking GHR to provide it with in- formation regarding TCP, its management, its relation- ship with GHR, and its employees . On 6 February, Deutsch, on behalf of GHR, addressed a letter to Sim- mons containing information regarding TCP employees. Deutsch stated that the letter was in response to Sim- mons' request for such information during contract nego- tiations. During negotiations in 1980, both at the bargaining table and in remarks elsewhere, Simmons and union ad- herents were claiming that TCP should be included in the bargaining unit. In early 1979, Simmons obtained a signed union authorization card from a TCP employee. Sometime after the 1980 strike ended, Simmons sought to make union members of the approximately 35 employ- ees whom GHR had hired into the bargaining unit during the strike. Simmons encouraged the Union's stew- ards to solicit signed union authorization cards from these new employees. By 15 July, the Union had ob- tained cards from them. On that day, Simmons presented the 10 cards to Deutsch. Deutsch asked how many cards there were, Simmons answered "ten" but that the Union was in the process of signing up the rest of them. I find from Simmons' testimony that during his employment by GHR, he periodically gave signed union cards to Deutsch and that prior to 15 July, the last time he had done so was in January or February.23 In contrast with Simmons, Deutsch seemed reluctant to testify on examination by counsel for the General Counsel regarding Simmons . Although he remembered issuing suspension and warning notifications to Simmons on 9 November 1978, he had no recollection of Sim- mons' grievance and its settlement. He also claimed no recollection that his warning of disciplinary action, when Simmons attempted to represent employee Sullivan, re- sulted in an unfair labor practice charge , a complaint and a finding that the warning had violated the Act. These denials of recollection, which contrasted sharply with his apparent ability to recall information detrimental to Sim- mons, infirmities persuaded me that Deutsch was not a reliable witness regarding Simmons' discharge. At approximately 9:30 a.m. on 16 July, Simmons pro- ceeded to Deutsch's office on a supervisor's instructions. Upon his arrival, Deutsch presented to Simmons a copy of a letter Deutsch had sent to the Union's international representative, James Bergeron. Among other matters, Deutsch's letter announced GHR's plan to contract out its maintenance work. The letter stated that GHR would implement its intention on 28 July and offered to meet and negotiate with the Union about the impact of the contracting out on the unit employees. Simmons accept- ed the letter and returned to work. That same day, after receiving GHR's letter, Simmons telephoned GHR's president, Jack Stanley, to complain that the letter had misrepresented the Union's position on GHR's maintenance problem. Toward the close of the conversation, Stanley warned Simmons that he would be hearing from Deutsch "very shortly." Simmons, perceiv- ing that Stanley was referring to the stalled negotiations, expressed doubt that Deutsch could help. At this, Stan- ley retorted: Well, we've got a policy here about conducting union business on company time. You'll be hearing from Deutsch shortly. On the afternoon of 16 July, Simmons represented em- ployee Lynn Hymel at a counseling session with Deutsch. Neither Deutsch nor Simmons mentioned any- thing about Stanley's earlier remarks. However, later, on the same day, Deutsch told Sim- mons that he wanted to see Simmons on the morning of 17 July. After some discussions, the two agreed to meet at 8 a.m. on 17 July. Simmons and International Representative Roan ap- peared in Deutsch's office on the morning of 17 July. Upon their arrival, Deutsch announced that the meeting was for a disciplinary purpose. Deutsch rejected Sim- mons' request to have Roan as his representative, on the ground that Roan was not a GHR employee.24 Deutsch stated that he had sent for a steward in the plant to represent Simmons. Union Steward Harvey Kimball arrived and the disciplinary session began imme- diately. Deutsch asserted that GHR had investigated and found that Simmons had been circulating through the plant, asking TCP employees to join the Union. Simmons denied the allegation. When Kimball asked who had ac- cused Simmons, Deutsch refused to provide that infor- mation. Deutsch immediately terminated Simmons. '4 The 1978 contract, in pertinent part, provided as follows: Article XXXVI Disciplinary Procedure Section 2. An employee may request union representation at any 23 Deutsch denied that Simmons gave any cards to him on 15 July or stage of the disciplinary procedure directed towards the said employ- at any other time. However, I credited Simmons' contrary testimony . As ee, including the investigatory stage, and such representation shall Simmons appeared to be more forthright than Deutsch , I credited Sim- not be denied by the Company . The Union agrees that it will furnish mons' testimony that he gave 10 cards to Deutsch. such representation to the employees. GHR ENERGY CORP Thereafter, Simmons received no offer of reinstatement from GHR. On 17 July, International Representative Roan sent a letter to GHR's Deutsch on the Union's behalf, request- ing the following information regarding Simmons' dis- charge: (1) Any and all written statements, reports or other documents which the Company has in its pos- session in connection with the alleged solicitation of TCP employees to join the Union. (2) If the Company has received any oral state- ment or reports in connection with the alleged so- licitation of TCP employees herein mentioned above, then the Union is desirous of obtaining the names of all the persons making such statements and/or reports and the exact content of those state- ments and/or reports. .(3) Any and all information as to which TCP em- ployees Mr. Simmons allegedly solicited including but not limited to their names, the dates of solicita- tion and the places of solicitation; and (4) Any other evidence, information or docu- ments which the Company has in its possession in connection with this matter. In the letter, Roan explained the Union's reasons for seeking the requested information. He stated that the Union needed the information to represent Simmons in- telligently and effectively and to evaluate properly "the alleged incidents resulting in his termination." At the hearing, Roan reiterated these reasons for the Union's re- quest. Deutsch responded by letter on 6 August. He reported that GHR was reviewing Roan's request to determine "what information can be supplied to the Union." Roan renewed the Union's request by a second letter to Deutsch dated 18 August. GHR gave no further re- sponse to the Union's request for information regarding Simmons' discharge. Despite his discharge by GHR, Simmons retained his union positions as group chairman and vice president of Local 4-447 until on or about 31 January 1981 However, immediately after Simmons' discharge, GHR discontin- ued its practice of sending correspondence to him re- garding grievances. By letter of 6 August, to Deutsch, Simmons stated that he was group chairman of GHR's employees and thus entitled to receive correspondence regarding those employees. He concluded by requesting GHR's reason for "by-passing" him "on matters that affect the members of my Union and Group." Thereaf- ter, GHR resumed its practice of sending correspond- ence pertaining to the GHR employee group, to Sim- mons. On or about 31 October, Simmons and a suspended employee, Steven Brackin, arrived together at the en- trance of GHR's west plant. Brackin had asked Simmons to accompany him to Deutsch's office and represent him at a grievance meeting with Deutsch regarding Brackin's reinstatement. A security guard stationed at the plant's entrance called Deutsch's office and handed the tele- phone to Brackin. In the conversation which ensued, Deutsch rejected Brackin's request to have Simmons as 1039 his representative, on the ground that Simmons was not a GHR employee. Deutsch also said he had summoned a union steward, employee Mark Hymel, to represent Brackin. Brackin accepted Hymel as his representative and attended the disciplinary interview, leaving Simmons at the gate. 2. Analysis and conclusions The General Counsel contended that the reason which Deutsch gave at the time he discharged Simmons was pretextual. Instead, the General Counsel argued that GHR discharged Simmons because he was a leading union advocate, and thereby violated Section 8(a)(3) and (1) of the Act. GHR sought dismissal of this allegation on the ground that it discharged Simmons for miscon- duct. I find merit in the General Counsel's contention for the following reasons. As I have previously stated, where the evidence shows that an employer's opposition to union activity was a motivating factor in its decision to terminate an employ- ee, Board policy requires a finding of unlawful motive, unless the employer can show, as an affirmative defense, that it would have discharged the employee regardless of his or her protected union activity. Wright Line, 251 NLRB 1083, 1089 (1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). However, where the record shows that the protected union activity was a motivating factor in the employer's decision, and that the proffered justification is pretextual, "that determination constitutes a finding that the reasons advanced by the employer did not exist or were not in fact relied upon." Limestone Apparel Corp., 255 NLRB 722 (1981). Such a finding, necessarily removes any ground for determining whether the employer would have discharged the alleged discriminatee even in the ab- sence of protected union activity. Wright Line, 251 NLRB at 1084. As group chairman, Simmons was the leading union activist at GHR. He was actively involved in the filing of grievances, and the establishment of the Union's stew- ard system. In 1979 and 1980, Simmons pressed GHR to provide the Union with information regarding TCP's employees and their work He also urged GHR to in- clude TCP's employees in that unit. Early in 1980, he urged the employees to strike GHR when the 1978 con- tract expired. After the 1980 strike, Simmons stimulated the Union's effort to recruit the 35 employees whom GHR had hired during the strike. He showed enthusiasm for this recruit- ing effort on 15 July, when he handed to Deutsch 10 cards bearing the signatures of employees hired during the strike. On three occasions, GHR's reactions to Simmons' union activity revealed hostility. In September 1978, Deutsch violated Section 8(a)(1) of the Act by threaten- ing Simmons with discipline because he attempted to represent an employee in a disciplinary interview. In November 1978, Deutsch again attempted to punish Simmons for engaging in union activity during working time, by suspending him for 3 days without pay. 1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Finally, 1 day after Simmons had given 10 signed union authorization cards to Deutsch, President Stanley revealed that GHR was again irked at Simmons' union activity. Stanley warned that Deutsch would soon be in touch with Simmons . He also made clear that Deutsch would address himself to Simmons' union activity. The record showed that President Stanley participated with Deutsch in the formation of GHR 's loyalty policy in 1980 and that Stanley involved himself generally in GHR's labor relations, including the continuing contract negotiations with the Union after the strike in 1980. Thus, Stanley was likely to have frequent enough con- tact with his personnel manager, Deutsch, to keep abreast of grievances, and union activity among GHR's employees. From these circumstances and the content and timing of Stanley's remarks to Simmons, I find that by his remarks about "union activity," Stanley was refer- ring to the 10 signed authorization cards Simmons had given to Deutsch on 15 July. There can be little doubt that the strike, which had ended 3 months earlier, had stirred up antiunion senti- ment among GHR's management, including President Stanley. GHR quickly manifested its union animus after the strike by its resort to the unlawful conduct I have found earlier in this decision . Thus, GHR violated Sec- tion 8(a)(3) and (1) of the Act by withholding sick leave payments from bargaining unit employees because it be- lieved they were actively supporting the strike. GHR again revealed its hostility toward bargaining unit em- ployees by unlawfully enrolling strike replacements in its own health insurance program which, unlike the Union's insurance program, did not require the employees to contribute a portion of the premium . GHR further mani- fested its sentiment when it unlawfully favored strike re- placements by paying them at the higher , operator 1 rate, while they were working in the operator 2 classifi- cation, and withholding such treatment from the strikers working as operators 2. GHR also unlawfully sought to discourage employees from voicing support for the Union and its economic ob- jectives. GHR imposed a loyalty policy on its employ- ees. It also punished employee Rene Elfer for writing letters critical of GHR, in support of the Union, to a local newspaper. In sum, the General Counsel has shown that GHR se- lected Simmons, a leading union activist, for discharge 2 days after he had presented 10 signed union authoriza- tion cards to GHR's management and had stated his intent to obtain more support for the Union from the strike replacements In light of GHR's manifestations of union animus in April and May, I find that Simmons' ac- tivity was a motivating factor in GHR's decision to dis- charge him on 17 July. In support of GHR's defense, Deutsch testified that he discharged Simmons, in the neighborhood of 9 or 9:30 a.m. on 17 July, for violating GHR's rules of conduct, which had been in effect since August 1978 , by soliciting during work time. Specifically, Deutsch referred to a prohibition against solicitation in GHR's refinery "during an employee's working time or during the working time of the employee solicited." According to Deutsch, on 16 July, he made the decision to discharge Simmons after reading the written statements of TCP employees James A. Zievert, James H. Kinchen, and Louis Edward Las- sabe Jr., none of which were dated. According to Zievert's and Kinchen's sworn state- ments, at approximately 10 a.m., on 25 June , Gail Sim- mons approached TCP employees Kinchen and Zievert at GHR's refinery warehouse, at its east plant, and asked if they would join the Union. According to Lassabe's sworn statement, he met Simmons in the warehouse, at approximately 10:15 a.m. on 15 July and early in the en- counter asked Simmons: "[I]f the Union can do so much for you, why didn't they get Charlie Goodnight (dis- charged electrician) re-instated [sic]." Lassabe in his sworn statement, also reported that Simmons discussed an impending union meeting, the Union's plan to seek re- instatement for fired or laid off TCP employees, and the Union's role in providing job security. Zievert's credited testimony and infirmities in Deutsch's testimony cast serious doubt upon Deutsch's assertions that he relied on Zievert's, Kinchen's, and Las- sabe's statements when he decided to discharge Sim- mons. On cross-examination, Deutsch did not fix the date when he read the statements. He said he could not recall it. Instead, he speculated that he read them "within a day or two before" 17 July, the date of his confrontation with Simmons. Considering that Deutsch had discharged a leading member of the bargaining unit , who had worked at GHR's refinery for over 5 years, one would expect Deutsch to have a firmer recollection of this unusual event than his testimony portrayed. His uncertain an- swers, and apparent reluctance to be more specific, to- gether with my earlier appraisal of his testimony regard- ing Simmons, raised my suspicion that he was not a candid witness about when he first saw the three crucial statements. Review of employee Zievert's statement and his testi- mony persuaded me that Deutsch's testimony regarding his motive for discharging Simmons was fiction. Thus, Zievert's written statement, which according to Deutsch was in his hands on 16 July, contains the following: "Myself and James Kinchen had not discussed this inci- dent with anyone until July 17, 1980, when we revealed this information to [Superintendent] Clem Zievert of TCP Maintenance." I find from Zievert's testimony that he gave his writ- ten statement to GHR's security on the afternoon of 17 July, hours after Deutsch had discharged Simmons. I also find from Zievert's testimony that it was not until 17 July, that a member of management, Zievert's father, Su- perintendent Clem Zievert, heard Zievert's report of Simmons' solicitation. Nor did Lassabe's testimony fix a date for the written statement he gave to GHR security officer Lester Wal- lace. Lassabe testified that he told Wallace about the as- serted encounter with Simmons 1 or 2 days after it had occurred. However, Lassabe's testimony did not provide any date for this encounter. Lassabe's testimony shows only that it occurred in July. His written statement fixed 15 July as the date of the incident. However, the entire statement was hearsay, and I did not receive it for the GHR ENERGY CORP truth of any of the assertions it contained. Therefore, Lassabe's statement had no probative value on this issue of fact. I have also credited Simmons' denial that he had ever solicited TCP employees to sign authorization cards or to join the Union. Zievert and Lassabe, who were TCP employees, testified to the contrary. However, Simmons seemed to be giving his best recollection fully, and in a straightforward manner, while Zievert and Lassabe did not seem as conscientious about searching their memories on this point of fact. TCP employee Zievert's effort to fix the date of Sim- mons' attempt to solicit him and fellow TCP employee James Kinchen suggested that Zievert was grasping. Zie- vert testified that TCP employed him as a boilermaker until approximately March 1980, when he changed to an- other classification. He also testified that Simmons' at- tempt to solicit him and Kinchen occurred while Zievert was yet a boilermaker, shortly after the strike. A little later, Zievert fixed the time of the conversation at 4 months before he ceased being a boilermaker, and then testified that the conversation occurred on 15 July 1979. Zievert also testified that he had the conversation with Simmons before the strike. Further along, Zievert, after reviewing his written statement, testified that the conver- sation took place on 15 July. However, in his statement, Zievert asserted that the conversation with Simmons oc- curred "on the morning of June the 25th or there abouts." When counsel for the General Counsel pointed out that Zievert's statement did not say anything about 1980, Zievert conceded that fact, adding- "I'm just assuming cause I don't remember." Zievert's apparent willingness to provide testimony in support of GHR's defense about a conversation which he cannot place in time, cast seri- ous doubt on his credibility regarding the conversation's content. Lassabe's testimony also contained flaws suggesting that his account of a July 1980 conversation with Sim- mons was fiction. According to Lassabe's testimony on direct examination, after picking up some parts and leAv- ing Simmons and the warehouse, Lassabe, encountered Foreman Polgar, a TCP supervisor, who asked Lassabe "what happened." Lassabe testified that he told Polgar about his encounter with Simmons. On cross-examina- tion, Lassabe changed his story. He testified that Fore- man Polgar asked him "why I was over there talking to Mr. Simmons." However, Lassabe testified that he did not know whether Polgar had actually seen him talking to Simmons, as the asserted conversation had occurred inside the warehouse Lassabe attempted to explain Pol- gar's knowledge by speculating that Polgar observed the conversation through a window. Lassabe also changed the location of his encounter with Polgar. First, when asked on cross-examination to describe his meeting with Polgar, Lassabe fixed the situs at the west plant. In a second version, Lassabe placed Polgar in a truck moving away from the west plant and himself in another truck moving toward the west plant. Lassabe also seemed reluctant to undergo cross-examina- tion on his conversation with Polgar. He wanted to recite the incident rather than submit to counsel's search- 1041 ing questions In sum, Lassabe's shifting and inconsistent testimony and his reluctance to undergo cross-examina- tion persuaded me that Lassabe was not a candid wit- ness. Moreover, GHR did not offer TCP Foreman Polgar as a witness and did not report that it made any effort to obtain his testimony. Nor did GHR provide any other evidence to support Lassabe's testimony. This circum- stance convinced me that Lassabe's testimony in this regard was his own invention, created to assist GHR's defense and mask an unlawful motive. After reviewing the entire record before me, I am con- vinced that GHR's motive for discharging Simmons was his leadership in the Union's effort to recruit the strike replacements. On 15 July, Simmons handed 10 signed au- thorization cards to Deutsch and announced that the Union was trying to sign up the remainder of the strike replacements whom GHR was trying to woo with no- cost health insurance, and enhanced wages. The next day, President Jack Stanley, pointedly reminded Sim- mons about GHR's prohibition against "conducting union business on company time" and warned him that Deutsch would be talking to him. Thus did Stanley presage Simmons' punishment. The following morning, Deutsch, using the pretextual reason contained in Stan- ley's warning, hastily discharged Simmons to punish him for his leading role in the recruitment of the strike re- placements for the Union. The evidence also strongly suggested that only after Simmons' discharge had occurred did GHR set about camouflaging its unlawful purpose by obtaining the state- ments of employees Zievert, Kinchen, and Lassabe. This unsuccessful ploy lent further support to the General Counsel's contention that GHR's defense was pretextual. In sum, I find that GHR violated Section 8(a)(3) and (1) of the Act by discharging employee Gail Simmons. The record shows that on the morning of 17 July, Simmons arrived at Deutsch's office, where he soon learned that Deutsch was about to conduct an investiga- tory interview which was likely to result in disciplinary action against Simmons . The General Counsel alleged that GHR on that occasion violated Section 8(a)(1) of the Act by denying Simmons' request for representation by a union representative of his choice. I agree The Supreme Court and the Board have made clear that the right to request a specific union representative in this case rested with Simmons In NLRB v. J. Weingar- ten, Inc., 420 U.S 251 (1975), the Court approved the Board's view that Section 7 of the Act gives an employ- ee the right to demand union representation at investiga- tory interviews which he or she reasonably believes will result in discipline. Also, under Weingarten, 420 U.S. at 257-258, it is the employee, who is about to undergo the interview, who must request such representation. Fur- ther, when the employee makes the request, the employ- er must either grant it, give the employee the option of going on with the interview unrepresented or waiving the interview, or reject the request and end the inter- view. Absent is any provision allowing an employer to impose a union representative on an employee. 1042 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Board's decision in Coca-Cola Bottling Co., 227 NLRB 1276 (1977), suggested that the initiative for se- lecting a union representative lies with the employee. In that case, the Board held that if the employee requests a union representative , who is not available, the employer can reject the request and proceed with the investigatory interview without providing another representative or otherwise attempting to satisfy the employee's initial re- quest. However, in Coca-Cola, the Board also recognized that in such circumstances an employee has the right to request an alternative representation . Coca-Cola, supra at 1276. Applying the foregoing teachings here, I fmd that Deutsch impaired Simmons' Section 7 right to specify the union representative he wanted to assist him at the interview on the morning of 17 July. Deutsch imposed Steward Kimball upon Simmons, who was attempting to exercise his right under the Act to select the Union's International Representative Roan as his representative. As Roan was available, the interview could have pro- ceeded without delay . That some of Kimball's work time might have been wasted if Deutsch had granted Sim- mons' request did not warrant Deutsch's rejection of that request. For such waste resulted wholly from Deutsch's unlawful conduct, not from Simmons' attempt to exercise a right which the Act protects. I find that by Deutsch's refusal to permit Gail Simmons to exercise his right to select a union representative in accordance with the Weingarten doctrine, GHR violated Section 8(a)(1) of the Act. Consolidated Freightways Corp., 264 NLRB 541, 542 (1982). I also find merit in the allegation that GHR's refusal to deal with Simmons as employee Brackin's union repre- sentative at a grievance meeting violated its collective- bargaining obligation under the Act. M K Laboratories, Inc., 261 NLRB 152, 154 ( 1982). Accordingly, I find that by this refusal, GHR violated Section 8(a)(5) and (1) of the Act. 25 Turning to the Union's request for "the names of indi- viduals" who had reported to GHR that Simmons had solicited them, as alleged, I find that GHR failed to pro- vide the requested information . Under, established princi- ples, GHR's failure to honor the Union's request was a violation of its bargaining obligation. It is well settled that a union is entitled to information in the employer's possession which is relevant to the union's task of considering whether the discharge of a bargaining unit employee warrants the filing of a griev- ance. NLRB v. Acme Industrial Co., 385 U.S. 432, 437- 438 (1967); Salt River Valley Water Users' Assn., 272 NLRB 296, 300 (1984). Here, I find that the Act re- quired GHR to honor the Union's request, on 17 July and 18 August, for the names of individuals who had told GHR that Simmons had engaged in solicitation for the Union. This information was relevant to the Union's 25 Deutsch testified that he refused to accept Simmons as Brackin's representative because he, Deutsch, had summoned a union steward to act in that capacity, and this procedure was "the way we always did it." However, there was no showing that the Union had expressly agreed to this asserted practice, or had expressly waived the employees' rights under the Board's Weingarten doctrine. I fmd that the Union did not clearly and unmistakably waive those rights. investigation of Simmons' discharge. For, armed with those names, GHR might have obtained information from those individuals to determine whether to file. a grievance complaining about Simmons' discharge. By failing to provide the requested information , GHR vio- lated its duty to bargain in good faith and Section 8(a)(5) and (1) of the Act. F. W. Buschman Co., 277 NLRB 189 (1985); Transport of New Jersey, 233 NLRB 694 (1977). I. The Polygraph Test and GHR's Alleged Refusals to Furnish Information to the Union Regarding the Polygraph Test 1. The facts26 At a negotiating session between GHR and the Union, on 8 April, GHR's representative, attorney John A. Meagher, first raised the topic of sabotage . Meagher complained that after the strike began, GHR found evi- dence of tampering and intentional mistreatment of its fa- cilities. In support of this complaint, Meagher read from a list of suspected incidents of sabotage, which included a diesel oil spill, open valves, knots tied in an air line, the removal of nickel catalyst and damage to hoses and tele- phone wires. The union representatives denied responsi- bility for the alleged sabotage and expressed opposition to such conduct. Meagher again raised the topic of sabotage at the next negotiating session, on 10 April. He reported that on 9 April, GHR had discovered a large nail in a compressor, which resulted in a shutdown of its catalytic cracking operation and a loss of production. GHR did not complain about sabotage again until August. On 13 August, GHR complained to the Union about acts of sabotage including the contamination of drinking water with methanol. By letter of 29 August, to GHR, the Union made the first of a series of requests for information on acts of sab- otage. Thereafter, in its letter of 16 January 1981, to the Union, GHR responded with reports of six incidents which it attributed to sabotage . By letter of 22 January 1981, the Union advised GHR that it had begun an in- vestigation of the alleged incidents of sabotage and re- quested information as follows: With regard to each one of the incidents listed in your letter of January 16, 1981 , the Union demands that the Company furnish it with all evidence which it has in its possession. More specifically, we demand the following information and/or docu- ments with regard to each and every incident listed in your letter of January 16, 1981: 1. Any and all written statements, reports and other documents which the Company has in its possession; 2. If the Company has received any oral state- ments or reports in connection with any of these alleged incidents, then the Union is desirous of 26 Except as noted, the essential facts recited below, regarding the alle- gations growing out of GHR's polygraph testing of its employees in Feb- ruary 1981, are not disputed. GHR ENERGY CORP obtaining the names of the person(s) making such statements and/or reports and the exact content of those statements and/or reports; 3. The names of any individual(s) involved in any of these alleged incidents, the specific place where the incident occurred and the details of the manner in which the incidents took place; and 4 Any and all other evidence, information or documents which the Company has in its posses- sion in connection with these matters. GHR never responded to this request. At a negotiating session in February 1981, GHR for the first time spoke to the Union about giving polygraph tests as a response to sabotage. GHR's representative, at- torney lack Meagher, exhibited a severed air hose from a GHR compressor. Meagher also reported and showed pictures of damage to a cooling fan and a safety harness. He asserted that sabotage had caused the damage, and exhibited the severed hose in response to the Union's re- quest for evidence of sabotage. Meagher's remarks indi- cated that to defend itself against further damage, GHR was considering the use of polygraph testing for employ- ees who were in the area where the alleged sabotage had occurred. Meagher asked the Union for its "input." Meagher also stated in discussion with International Rep- resentative Bergeron that as far as he was concerned, unit employees would have union representation during their polygraph tests. Bergeron did not agree to the test. Bergeron remarked that the courts did not accept the results of polygraph tests as evidence. Bergeron also said that the Union did not believe in the test, but that the Union would consider it. Bergeron requested proof that unit employees had been near the locus of the suspected sabotage and more proof of sabotage. The Union and GHR met again on 12 February 1981. Personnel Manager Deutsch presented information show- ing the effect of the air hose damage on a production unit and mentioned suspected sabotage to a pump on the same unit Deutsch asserted that he had given all the in- formation he had. On 12 February, attorney Meagher again voiced GHR's intention to use polygraphing, a stress test, or some other method in its effort to combat the alleged sabotage. The Union persisted in its opposition to the polygraph test. It would not agree to polygraph tests unless GHR convinced the Union that sabotage had caused the damage. When Bergeron asked Meagher if GHR had any more information regarding the latest sus- pected sabotage, Meagher answered that he did not. On the night of 14-15 February, a large Worthington compressor ceased operating. GHR's inspection found a soft drink tab top and a cellophane wrapper on the grid above the compressor's blower chamber. On 17 Febru- ary, GHR notified Meagher of this incident which it per- ceived as sabotage. Meagher viewed this report as cause for alarm. Meagher contacted Bergeron on 19 February 1981, and arranged a meeting for 21 February 1981. Meagher told Bergeron that a compressor had been sabotaged. 1043 Meagher also warned that the sabotage problem could result in the refinery's destruction He insisted that- "Whether it takes polygraph, whichever it takes, we've got to get resolution of this problem." Between 5 and 8 days prior to the meeting on 21 Feb- ruary, Meagher and GHR's management began to look for a polygraph examiner. On 19 and 20 February, GHR's safety director, Charles Leslie Wallace, retained polygraph examiner Ernie Hulsey. At the meeting on 21 February, Meagher and GHR Security Supervisor Noack produced a soft drink tab and a cellophane wrapper which GHR claimed it had found in the Worthington compressor. Meagher also advised the Union that GHR had retained Hulsey to administer polygraph tests to all employees who had "opportunity" and "knowledge" to accomplish the alleged sabotage. Meagher stated that the recent increase in incidents of sabotage was a serious matter and that the continuation of such incidents could result in injury or death at or near the refinery The Union's spokesman Bergeron expressed doubt about the alleged sabotage to the Worthington compres- sor. He rejected the polygraph test as invalid, but did not suggest an alternative test. Bergeron also refused Meagher's offer to chose from among three polygraph firms which Meagher named, or from any other poly- graph testing firm the Union might prefer. Bergeron also declined to talk to Hulsey, who had already arrived at the refinery. The Union did not offer any alternative to the polygraph test. Noack and Meagher explained their reasons for believ- ing that someone had placed the tab and cellophane wrapper in the Worthington compressor. The Union sug- gested that someone's carelessness was to blame. Meagher rejected that explanation, claiming that a back- up compressor was also not operating because of some- one's deliberate misconduct. Noack and Meagher offered to show to the Union the Worthington compressor and GHR's investigatory files on the suspected sabotage of the compressor, and all other alleged sabotage. The Union was not interested.27 The Union asked whether GHR would permit bar- gaining unit employees to have union representatives with them during the polygraph test. Meagher relayed this question to Hulsey, who advised that he would not permit a union representative to be present in the room during a polygraph test Meagher passed Hulsey's re- sponse to the Union, but added that during the poly- graphing, union representatives would be available to employees immediately outside the testing room 27 According to Bergeron's testimony, it was not the Union's negative attitude, but Meagher's failure to make arrangements which resulted in Bergeron's not seeing the Worthington compressor However, I have credited Meagher and Noack, who testified in a more forthright manner than did Bergeron, that Bergeron was not interested in their invitations to view the compressor and examine GHR's investigative file Bergeron did not impress me as a candid witness In his responses on cross-examination by GHR, Bergeron seemed uncertain and evasive at times Thus, when asked if Meagher had raised a particular matter at the bargaining table, Bergeron avoided the yes and no answers which the questions suggested and gave an unresponsive answer I also received the impression on cross-examination that Bergeron was not searching his recollection and that he was hostile to GHR's counsel 1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Meagher read the proposed questions to the union rep- resentatives and said that they would be answered "yes" or "no." The questions were as follows: 1. Have you Told the Complete Truth Concern- ing Your Knowledge of any sabotage at GHR? 2. Do you know the name of any person who has committed any act of Sabotage against GHR? 3. Have you intentionally committed any act of sabotage against GHR? 4. Have you talked or planned with anyone to cause damage to any of GHR equipment? 5. Have you intentionally sabotaged any of GHR's electrical or instrument air equipment? 6. Have you intentionally opened or closed any valves with the intent to commit sabotage to GHR? 7. Have you intentionally committed any act of sabotage to any protable compressor? 8. Have you reported to work at GHR under the influence of any illegal drug? 9. Have you used any illegal drug on premises at GHR? 10. Are you deliberately withholding any infor- mation concerning your knowledge of sabotage at GHR? The Union objected to the polygraph test and request- ed more information to permit it to consider the test. Bergeron said the test was invalid as an investigative tool. GHR did not provide any additional information regarding the alleged sabotage , after the meeting of 21 February 1981 . GHR's representative, Meagher, insisted that there be no further delay and that testing proceed forthwith. I also find from Meagher's and Hulsey's testi- mony, that GHR had already decided on 19 February 1981, that it would go forward with the test. Bergeron asked if the polygraph test would be the basis of GHR's determination of disciplinary action. He also asked what GHR intended to do to employees who refused to take the test. Meagher was noncommittal on both questions. The meeting ended and GHR began po- lygraphing employees on the midnight shift, 22 February 1981. The expired 1978 contract between GHR and the Union contained the following provision regarding indi- vidual employee requests for union representatives during disciplinary interviews: ARTICLE XXXVI DISCIPLINARY PROCEDURE Section 2. An employee may request union repre- sentation at any stage of the disciplinary procedure directed towards the said employee , including the investigatory stage, and such representation shall not be denied by the Company. The Union agrees that it will furnish such representation to the em- ployee. On 22 February 1981, the Union held two meetings with unit employees, regarding the polygraph test. Ap- proximately 60 unit members attended the meetings. They heard International Representative Bergeron an- nounce that GHR would administer lie detector tests to the employees, and that contrary to GHR's previously stated intention, it would not permit union representation inside the testing room. Bergeron expressed the Union's opposition to the test and advised his listeners that the decision to take or not take the test was theirs. Bergeron read aloud the polygraph test questions which he had obtained from GHR. He also warned the employees that GHR would terminate them if they refused to take the polygraph test or if they failed the test. Testing continued on 22, 23, 24 and 25 February and at various unspecified dates thereafter in March 1981. In administering the GHR test , GHR followed polygraph examiner Ernie Hulsey's advice. GHR permitted employ- ees to have a union representative outside the test room, available for consultation during the test, but barred union representatives from accompanying employees into the testing room. One-hundred and four bargaining unit employees took the test. GHR suspended indefinitely at least three employees who failed the test on the sabotage question. However, GHR advised them that it would reinstate them if they passed the test. One of the three, Brown, passed the test on his third try, and was reinstated. On the respective dates shown below,88 GHR indefi- nitely suspended the following bargaining unit employees because they refused to take the polygraph test, without a union representative present. Gerald Benoit (23 Febru- ary) Henry Vicknair (25 February), Dennis Guarino (23 February),29 Dino Miranda (24 February), Robert Snyder (22 February), Eugene Williams (22 February), Dan R. Duncan (22 February), Ross Allen (22 Febru- ary), Gus Lee Couch Jr.30 (22 February), George Le- Bourgeois (22 February), James K. Sharp (22 February), Martin L. Ware (on or about 8 March), Marion Mericle (25 February), Steven Miller (22 February), Gibson Sewell Jr. (25 February), John Jaskola (25 February), 3 t 28 All dates refer to 1981. Sa I find it unnecessary to resolve a minor conflict in Benoit's and Guarino's testimony . Benoit testified that he told GHR's Security Direc- tor Leslie Wallace that he and employee Dennis Guarino wanted union representation at the polygraph test , and that when Wallace refused to grant the request, Benoit refused to take the test without referring to Guarino. According to Guarino, Benoit told Wallace that he and Guar- ino would take the test "[o]nly if we get union representation," and that when Wallace said they could not have such representation , Guarino an- swered in substance that he would not take the test under that condition and Benoit answered, "We won't take it either." I find from their testimony, that Benoit and Guarino , each speaking for himself, told Wallace that he would not undergo the polygraph test with- out the presence of a union representative. 30 Couch refused to take the polygraph test when GHR rejected his request to .have union committeeman Glenn J. Gaubert with him while he took the test. 31 The amended consolidated complaint alleged , and GHR's answer conceded, that GHR suspended John Jaskola indefinitely because he re- fused to take a polygraph test without union representation in the test room with him. The parties also stipulated that GHR indefinitely suspended Lester Henry on 25 February and John Buchwalter on 22 February.'However, the record did not show GHR's motive for suspending these two em- ployees. Continued GHR ENERGY CORP. and Ronald P. Gaubert (25 February). GHR also indefi- nitely suspended the following employees on the respec- tive dates shown, because they refused to take the poly- graph test: Glenn J. Gaubert (22 February), William Hubbard Jr. (22 February) '32 and Teryl Schexnayder (22 Febru- ary). 33 Three or four weeks later, GHR gave Hubbard an- other opportunity to take the polygraph test. Hubbard agreed. Two weeks thereafter, he took the test, stressed on a sabotage question and on a drug related question. He failed a second test on a drug related question. GHR retained Hubbard in an indefinitely suspended status since 22 February 1981. By letter to GHR's attorney, Meagher, dated 23 Feb- ruary 1981, the Union renewed the request for informa- tion it had made in its letter of 22 January 1981. In a letter dated 2 March 1981, Meagher reviewed the evi- dence GHR had presented to the Union on 21 February 1981, consisting of photographs of the compressor, a cel- lophane wrapper, and a tab from a soft drink can. Meagher insisted that by this evidence, GHR had shown that sabotage had caused damage to the Worthington compressor. The letter contained no further information regarding alleged sabotage at GHR's' refinery. By letter of 11 March 1981, the Union again pursued the request for information contained in its letter of 22 January 1981. GHR did not respond. On 25 February, Supervisor Bruce Dahnn34 told em- ployee Ronald P. Gaubert to take the polygraph test. Gaubert asked Dahnn what would happen if he, Gau- bert, refused to take the test. Dahnn replied that as far as GHR was concerned, "that would be an admission of guilt and you'd be suspended." On 19 March 1981, at a meeting between representa- tives of GHR and the Union, International Representa- tive Bergeron asked GHR's attorney, Meagher, for the results of the polygraph test and a breakdown of the number of GHR employees, TCP employees, and con- tractor's employees who took the polygraph test. Meagher's response was that there were no results be- cause polygraph tests do not produce results. Bergeron sought the results of the polygraph test in re- sponse to GHR's request for a waiver of the contractual bidding procedure for filing the vacancies created when Accordingly, I find that the General Counsel has failed to show that GHR violated the Act when it suspended Henry and Buchwalter and shall recommend dismissal of so much of the complaint allegations as per- tain to them 32 1 find from Hubbard's testimony that he did not tell GHR that he was refusing to take the polygraph test without a union representative being present with him during the test I further find from Hubbard's tes- timony that although he told Glenn Gaubert that was the reason for his refusal, Gaubert did not pass that reason on to GHR However, Hub- bard's credited testimony also shows that he flatly refused to take the polygraph test on 22 February, when a GHR representative asked him to reconsider his position as Schexnayder refused to take the test "under the conditions," when Security Director Leslie Wallace asked if he would take the polygraph Contrary to the General Counsel 's assertion , I find it unlikely that Wal- lace would have understood the quoted language to mean "without a union representative" I find instead,, that Wallace would have taken Schexnayder's remark as a flat refusal to take the test 34 Referred to in the transcript as "Bruce Dom " The complaint and answer in 15-CA-8088 agree upon the spelling I have used 1045 GHR suspended unit employees who refused to take the polygraph test. Bergeron believed that if the Union had the requested information, the Union could set up a second polygraph test with an independent consultant for the suspended employees and obtain their reinstatement. By its letter of 20 March 1981, which GHR received 1 day later, the Union confirmed, and stated in detail, the request for information which Bergeron had made on 19 March 1981. GHR did not respond to the letter. The text of the letter was as follows: On or about February 21, 1981, the Company unilaterally instituted a polygraph test and required employees represented by the Union to take the polygraph test as a condition of further employ- ment. Additionally, we understand the Company has required other Good Hope employees not in the bargaining unit as well as other individuals em- ployed by, contractors working at Good Hope Re- fineries to take the test. At a meeting of March 19, 1981, the Union asked the Company to furnish cer- tain information with regard to the polygraph test, those who took the test and the results of the test. We would like to confirm our demand for the in- formation sought in the meeting of March 19, 1981. In the case that our demand was not clearly under- stood, we are setting forth below exactly what in- formation we must have in order to properly repre- sent the employees in the bargaining unit, including but not limited to those employees who were indefi- nitely suspended and/or terminated as a result of their refusal to take the test We herewith demand the following information and/or documents; 1. The names of all individuals in the bargain- ing unit who were required to take the polygraph test, the names of those who did in fact take the test and the names of those who refused to take the test; 2. With regard to each individual named in re- sponse to inquiry #1 above, we demand the date that the Company required each named employee to take the test, the date on which each named individual did in fact take the test or did in fact refuse to take the test; 3. With regard to each of the employees in the bargaining unit who took the test, we demand a list of the questions asked of each individual, the specific response of each individual to each of the questions asked, whether anyone was present when the test was administered to each such indi- vidual, who administered the test and the results of the test of each of the individuals; 4. Of those employees in the bargaining unit who took the test, we demand the name of each such individual who failed the test and the reason therefor, as well as the results of the test as re- quested hereinabove; 5. With regard to each of the employees in the bargaining unit who took the test, we demand the name of any individual who was disciplined 1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD thereafter, the type of discipline imposed, the reason for the discipline, the date of the discipline and any documents which the Company has in connection with the discipline; 6. With regard to those employees in the bar- gaining unit who refused to take the test, we demand the date and time of their refusal to take the test and the names of any individuals who were present when such employees refused to take the test; 7. Of those employees in the bargaining unit who refused to take the test, we demand the date of discipline imposed upon each such employee, the name of the Company representative who made the decision to impose the discipline; the specific reason for the discipline and any docu- ments which the Company has in connection with the discipline; 8. With regard to each of the employees in the bargaining unit who refused to take the test, we demand the names of any individuals who were present at the time of the imposition of the disci- pline; 9. The names of all Good Hope employees not in the bargaining unit who were required to take the polygraph test, those who did in fact take the test and those who refused to take the test; 10. With regard to each Good Hope employee not in the bargaining unit named in response to inquiry #9 above, we demand the date that the Company required each named employee to take the test, the date on which each named employee did in fact take the test or did in fact refuse to take the test; 11 With regard to each Good Hope employee not in the bargaining unit who took the test, we demand a list of the questions asked of each such individual, the specific response of each such in- dividual to each of the questions asked, whether anyone was present when the test was adminis- tered to each individual, who administered the test and the results of the test of each such indi- vidual; 12. Of those Good Hope employees not in the bargaining unit who took the test, we demand the name of each such individual who failed the test and the reason therefor, as well as the results of the test as requested hereinabove; 13. With regard to each Good Hope employee not in the bargaining unit who took the test, we demand the name of any individual who was dis= ciplined thereafter, the type of discipline irri- posed, the reason for the discipline, the date of the discipline and any documents which the Company has in connection with the discipline; 14. With regard to Good Hope employees not in the bargaining unit who refused to take the test, we demand the date of their refusal to take the test, whether any discipline was imposed upon each such employee, the date of the disci- pline imposed and who made the decision to impose the discipline; 15. Whether all Good Hope employees not in the bargaining unit were required to take the polygraph test, if not, we demand the names of those individuals not required to take the test and the reason therefor. We understand that certain individuals employed by contractors doing work at the premises of Good Hope Refineries, Inc. were requited to take the polygraph test. With regard to each such individual, we would like the following information and/or documents: 1. Whether all individuals who are employed by contractors performing work at Good Hope Refineries, Inc. were required to take the poly- graph test; if not, we demand the reason therefor; 2. The names of each individual and the con- tractor for whom each worked who were not re- quired to take the polygraph test; 3. The names of each individual and the con- tractor for whom each worked who were re- quired to take the polygraph test, the names of those individuals who did in fact take the test and the names of those individuals who refused to take the test; 4. With regard to each individual named in re- sponse to inquiry #2 set forth immediately here- inabove, we demand the date that each such indi- vidual was required to take the test, the date on which each such individual did in fact take the test or did in fact refuse to take the test; 5. With regard to each individual employed by any contractor doing work at Good Hope Refin- enes, Inc. who took the test, we demand a list of the questions asked of each individual, the specif- ic responses of each individual to each of the questions asked, whether anyone was present when the test was administered to each individ- ual, who administered the test, and the results of the test of each individual; 6. Of those individuals employed by contrac- tors doing work at Good Hope Refineries who took the test, we demand the name of each such individual who failed the test and the reason therefor, as well as the results of the test; 7. With regard to each of the individuals who were employed by contractors working at Good Hope Refineries who took the test, we demand the name of any individual who was disciplined thereafter, the type of discipline imposed, the reason for the discipline, the date of the discipline and any documents which the Company has in its possession in connection with such discipline; 8. With regard to those individuals employed by contractors doing work at Good Hope Refin- eries, Inc. who refused to take the test, we demand the date of their refusal to take the test, what action, if any, was taken against such indi- viduals and who made the decision to take such action; GHR ENERGY CORP 9. Whether any individual employed by a con- tractor working at Good Hope Refineries who failed the test or refused to take the test had been allowed to continue to work at the premises of Good Hope Refineries who failed the test or re- fused to take the test had been allowed to contin- ue to work at the premises of Good Hope Refin- eries, Inc., if so, then we demand the name of each such individual. The information and documents sought are essen- tial to the Union in order for it to intelligently and effectively represent all bargaining unit employees at Good Hope Refineries, Inc , as well as to effec- tively and intelligently represent those individuals in the bargaining unit who were indefinitely suspended and/or terminated as a result of either their refusal to take the test or their having failed the test. As you are aware, there are grievances pending with regard to the Company's action against these indi- viduals. We would appreciate an immediate, reply and your furnishing us with the information and docu- ments demanded. 2. Analysis and conclusions The General Counsel contended that GHR'violated its duty to bargain in good faith by unilaterally 'imposing a polygraph test upon the bargaining unit employees. The General Counsel also urged that GHR violated Section 8(a)(1) of the Act by suspending unit employees who either refused to take the test unless GHR permitted them to have a union representative with them during the test, or who flatly refused to take the test. GHR argued that it did not violate Section 8(a)(5) and (1) of the Act on the ground that an impasse in bargaining enti- tled it to administer the polygraph test to the unit em- ployees without the Union' s assent. GHR also contended that the Act did not protect the employees' refusals to take the test. I find merit in the General Counsel's con- tentions. In Taft Broadcasting Co., 163 NLRB 475, 478 (1967), the Board, in considering whether an impasse existed in that case, provided the following guidance for the instant case: Whether a bargaining impasse exists is a matter of judgment. The bargaining history, the good faith of the parties in negotiations, the length of the negotia- tions, the importance of the issue or issues as to which there is a disagreement, the contemporaneous understanding of the parties as to the state of nego- tiations are all relevant factors to be considered in deciding whether an impasse in bargaining existed GHR's failure to respond to the Union's letters of 22 January 1981, 23 February 1981, 11 March 1981, and 20 March 1981, and the Union's oral request for information on 11, 12, and 21 February 1981 deprived the Union of information it needed to pursue its own investigation, to assess the merits of GHR's proposal to administer a poly- 1047 graph test to bargaining unit employees, and to protect the interests of those employees. Specifically, I find that GHR had a duty to provide the Union with requested information regarding the spe- cific places where the alleged sabotage occurred, the names of witnesses, the details of each incident of alleged sabotage, and other evidence and information regarding the alleged sabotage , as well as information regarding the testing of unit and nonunit employees. However, under Board policy, GHR's obligation to provide the Union with requested information did not include the duty to hand over the witnesses' statements. Anheuser-Busch, Inc, 237 NLRB 982, 984-985 (1978). GHR's proffers of a severed air hose, pictures of damage, a scrap of cellophane, and the ring from a soft drink container were not a sufficient response to the Union's legitimate requests for information. GHR's 11th hour offer on 21 February 1981 to permit the Union to examine its files regarding the alleged sabotage of the Worthington compressor and all other alleged sabotage came too late. For, along with that offer, GHR's repre- sentative, Meagher, announced that the polygraph testing would proceed immediately. In fact, GHR began admin- istering the test during the shift which began at midnight on 22 February 1981. The complaint alleged, and I find that GHR's failure and refusal to provide the requested information, regard- ing a mandatory subject of bargaining, deprived the Union of data relevant and useful to the Union as collec- tive-bargaining representative. Accordingly, I find that by that conduct GHR violated Section 8(a)(5) and (1) of the Act. NLRB v. Acme Industrial Co., 385 U.S. 432, 436 (1967). In light of its unlawful failure and refusal to supply the Union with requested bargaining information, which the Act required it to provide, GHR may not excuse its uni- lateral imposition of the polygraph test on the bargaining unit employees on the ground that there was an impasse. Beyerl Chevrolet, Inc., 221 NLRB 710, 722 (1975). GHR's claim of impasse also fails because of its unilat- eral modification of Article XXXVI, Section 2 of the 1978 contract, which provided for union representation upon an employee's request, "at any stage of the discipli- nary procedure directed towards the said employees, in- cluding the investigatory stage. . . ." For the record shows that not until 21 February 1981, did GHR notify the Union that it would not permit bargaining unit em- ployees to have a union representative with them, in the same room, while they were taking the polygraph test. Clearly, the record leaves no doubt and I find, that GHR installed the polygraph test as part of its disciplinary pro- cedure. Indeed, GHR relied on the tests' results when it suspended employee Hubbard. The amended consolidated complaint did not allege that the unilateral modification of the contractual provi- sion violated the Act. However, the parties fully litigated the facts and circumstances surrounding that charge. Therefore, Board policy permitted me to find that con- duct to be unlawful and to provide the appropriate remedy. Caruso & Ciresi, Inc., 269 NLRB 265 fn. 2 (1984). Accordingly, I find that by failing to afford the 1048 DECISIONS OF THE NATIONAL- LABOR RELATIONS BOARD Union sufficient advance notice to allow a reasonable op- portunity for meaningful negotiations regarding this change in the established disciplinary procedure, GHR again violated Section 8(a)(5) and (1) of the Act. Beyerl Chevrolet, Inc., supra, 221 NLRB at 722, and cases cited there. I find, therefore, that GHR violated Section 8(a)(5) and (1) of the Act by unilaterally imposing a polygraph test upon the bargaining unit employees. Our Way, Inc., 268 NLRB 395, 415-416 (1983). I also find that by con- tinuing employee William Hubbard Jr.'s suspension be- cause he failed the polygraph test, GHR again violated Section 8(a)(5) and (1) of the Act. Our Way, Inc., supra at 416. Although the complaint did not allege that the continuation of Hubbard's suspension because he failed the polygraph test violated Section 8(a)(5) and (1) of the Act, the parties fully litigated the facts showing this vio- lation . Under these circumstances, Board policy author- ized me to find that the continuation of Hubbard's sus- pension violated Section 8(a)(5) and (1) of the Act..Ibid. In Interboro Contractors, 157 NLRB 1295, 1298 (1966), enfd. 388 F.2d 495 (2d Cir. 1967), the Board held that Section 7 of the Act protects an individual's assertion of a right provided in a collective-bargaining agreement. Further, as the Court recognized, with approval, in NLRB v. City Disposal Systems, 465 U.S. 822, 839 (1984), the Board does not require that the individual refer to the specific section of a collective-bargaining agreement as a condition for obtaining the protection of Section 7 of the Act. Applying the Interboro doctrine, I find that the em- ployees listed above, who insisted upon the presence of a union representative at their respective polygraph tests were attempting to enforce a right granted by Article XXXVI, Section 2 of the 1978 collective-bargaining agreement between GHR and the Union, and therefore were protected by Section 7 of the Act. I further find that by suspending each of them for refusing to take the test without the presence of a union representative, GHR violated Section 8(a)(1) of the Act. In Meyers Industries, 268 NLRB 493, 497 (1984), the Board announced that In general, to find an employee's activity to be "concerted," we shall require that it be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee him- self. Applying that test here, I find that Glenn J. Gaubert, William Hubbard Jr., and Teryl Schexnayder engaged in "concerted" activity within the meaning of Section 7 of the Act, when they refused to take the polygraph test which their fellow employees had discussed at meetings on 22 February 1981, and which the Union had opposed. I also find that GHR violated Section 8(a)(1) of the Act by suspending them indefinitely because they refused to take the polygraph test "The Loft," 277 NLRB 1444 (1986). I further find that by threatening employee Ronald Gaubert with suspension if he refused to take a poly- graph test, Supervisor Bruce Dahnn'restrained, coerced, and interfered with an employee in the exercise of his right under Section 7 of the Act to join with other em- ployees in their refusal to take the unilaterally imposed polygraph test. Accordingly, I find that by Dahnn's threat, GHR violated Section 8(a)(1) of the Act. Ad- vanced Installations, Inc., 257 NLRB 845, 850-851 (1981). I also find that information concerning unit and non- unit employees which the Union requested orally on 19 March 1981, and by its letter of 20 March 1981, was rel- evant to the Union's collective-bargaining role. The Union required the information regarding the polygraph testing of unit and nonunit employees to process griev- ances. The Union also sought the information to per- suade the suspended unit employees, who had refused to take the test, to seek reinstatement by taking the test and thus preclude their replacement I find therefore, that the Union was entitled to the requested information. Loral Electronic Systems, 253 NLRB 851, 853 (1980). I there- fore find that GHR violated Section 8(a)(5) and (1) of the Act by not furnishing the information which the Union requested on 19 and 20 March 1981. J. TCP's Employees, the Alleged Accretion and GHR's Alleged Refusal to Furnish Information to the Union Regarding its Relationship with GHR 1. Facts35 On 29 December 1971, the Union was certified as the collective-bargaining representative of the following unit of GHR's employees: All production, and maintenance employees, includ- ing laboratory employees employed at [GHR's] Good Hope, Louisiana, facility; excluding office clerical employees, the chief chemist, shift foremen, guards and supervisors as defined in the Act. The unit description in the 1978 collective-bargaining agreement's recognition clause, Article II, Section 1, in- cluded GHR's construction employees. I also note that Article XXXIV, Section 1 of the 1978 agreement reflect- ed the parties' intention to include GHR's warehousemen as part of the bargaining unit. In August 1980, GHR ter- minated its maintenance department and contracted out the refinery's routine maintenance. As previously stated, the Union and GHR were parties to a 2-year collective- bargaining agreement covering this unit, which expired on 28 February 1980.36 In late 1978, TCP began operations as a general con- tractor, on a cost plas basis, at GHR's refinery. GHR was TCP's only customer. TCP issued invoices for its work to GHR. In turn, GHR paid TCP by check, the same manner in which it paid other contractors. On 15 January, GHR and the Union began negotia- tions for a new contract. At this first meeting, Interna- tional Representative Jimmy Roan asked GHR's repre- 35I based my findings of fact upon the parties' stipulations and testi- mony of Jimmy Roan, Jerry K Deutsch, Gail Simmons, Glenn J Gau- bert, Howard Schwamb, James Zievert, Mark Hebert, Gary Karr, and Larry Cunningham 36 Unless otherwise stated, all dates in this section of the decision refer to 1980 GHR ENERGY CORP sentatives John Meagher and Jerry Deutsch for informa- tion about TCP's employees. On the following day, Deutsch provided information regarding TCP's classification and some rates of pay. Deutsch also told Roan that TCP employed maintenance employees at GHR's refinery in four shifts and described the breakdown of the classifications and their numbers on each shift On 23 January, the parties met again. Deutsch provid- ed more information regarding TCP's employees. Deutsch described TCP's hospital insurance policy, its vacation policy, and the rates of pay for TCP's employ- ees. He also revealed that the larger part of TCP's work was maintenance work, that the lesser portion was new construction, and that GHR supervisors assigned mainte- nance work to TCP employees. Deutsch advised the Union that TCP employees worked in the GHR ware- house, where employee Gail Simmons and other GHR employees worked. The Union and GHR met again on 30 January. Gail Simmons, on the Union's behalf delivered, the following letter to GHR: We understand that TCP or TCP Engineering and Construction presently and for almost a year has been performing certain work at the Good Hope Refineries Plant in Good Hope, Louisiana. We believe there is a connection between Good Hope Refineries, Inc. and TCP, either financially or through management personnel, or both. We under- stand that TCP has its offices at 257 Prospect Avenue in Good Hope, Louisiana, the same address as the offices of Good Hope Refineries, Inc. We un- derstand that TCP is and has-been using equipment which has "G.H.R." stenciled thereon. We hereby demand that the Union be supplied with the names of all individuals who are employed by TCP. With regard to each of those individuals so named, we would also demand the date of hire, the specific job duties and/or description, the rates of pay, hours of employment, and any and all fringe benefits and other conditions of employment. Addi- tionally, we demand the following information: (1) Whether there is an agreement with TCP for the furnishing of services to Good Hope If so, please advise as to what the agreement is. If such agreement be in writing, we hereby demand a copy of the agreement. (2) Exactly what services and/or work that TCP and/or its employees perform at Good Hope Refineries. (3) TCP's telephone numbef and- office ad- dress, or mailing address. (4) What positions, if any, in TCP are held by officers, shareholders, directors, supervisors, or other management representatives of Good Hope Refineries, Inc. ((5) The names of any persons who function in a capacity related to labor relations for TCP, for Good Hope, or for both. With those names please supply the company for which those indi- viduals work. 1049 (6) Whether or not any supervisors of Good Hope have authority over any employees of TCP or vice-versa. If so, then please name said super- visors and the employees over which they have control. The Union is demanding this information in order that it can effectively and intelligently administer and/or enforce the Collective Bargaining Agree- ment with Good Hope Refineries, Inc. and to be able to properly evaluate and/or process pending grievances. Additionally, this information is request- ed so that the Union can effectively and intelligent- ly represent the bargaining unit employees in the pending negotiations. We await your immediate reply. After GHR received the letter, the negotiating session continued. Deutsch provided more information regarding TCP's employees He recited some wage rates for me- chanics A and B, repeated earlier information regarding TCP's hospital insurance for its employees, and provided information on TCP's employee life insurance benefits. Deutsch also explained TCP's policies regarding vaca- tions, holidays, work uniforms and work assignments at the warehouse and other locations. Deutsch announced that he had provided all the information which the Union had requested at a previous meeting. The Union's representatives expressed interest in TCP's employees. Employee Gail Simmons, speaking on the Union's behalf, stated that "these [employees] should become union members." Attorney Meagher sought clarification of Simmons' re- marks. He asked: "Are we talking about these employees or all of TCP?" Union Representative Roan answered that the Union was "putting the company on notice today that all em- ployees of Good Hope Refinery should be covered with these same benefits and wages and conditions of employ- ment." During the next negotiating session, on 31 January, Roan and Simmons again raised the unit status of TCP's employees in discussion with GHR's bargaining repre- sentatives. Roan announced that the Union intended to file an unfair labor practice charge alleging that GHR was "attempting to circumvent the contract by working the TCP maintenance people in the unit." Later in the session, Gail Simmons remarked that the Union consid- ered TCP employees to be GHR employees. GHR's rep- resentatives did not respond to these remarks. On 6 February, GHR presented the following letter, signed by Jerry Deutsch, to the Union: This will confirm the information the Company provided you which you had requested during ne- gotiations for a new labor agreement to become ef- fective February 29, 1980. As the Company indicated to you, the number of outside contractors utilized by the Company varies from time to time. The actual number of employees fluctuates daily Specifically, you requested certain information concerning T.C.P. Construction Com- 1050 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pany. The following information was submitted to you in response to your request- Classification Hourly Rate Mechanic A on 1st $11.30 shift Mechanic A on 2nd 11.80 shift Mechanic A on 3rd 12.30 shift Mechanic B on 1st 9.40 shift Mechanic B on 2nd 9.90 shift Mechanic B on 3rd 10.40 shift Laborers on nights 6.60 Laborers on days 6.05 The benefits received by T.C.P. Construction Company employees are as follows: Company paid Blue Cross & Blue Shield Company paid Life Insurance. For employees earning up to $10,000/yr. is one (1) times salary. For employees between $10,000 and $30,000/yr. one and one-half ( 1 1/2) times salary Nine (9) paid holidays, Vacation-One (1) week after six (6) months. Two (2) weeks after one (1) year. Pay for time worked on a holiday is at straight time plus holiday pay. Uniforms are supplied by a Uniform Service Company for which the Company and the em- ployee share the cost of the service on a fifty- fifty basis. In accordance with our long standing under- standing and practice which exists between the Company and the Union, certain T.C.P. Construc tion Company employees have been assigned to per- form maintenance work at the Good Hope Refin- ery. As I indicated to you during negotiations, the number of employees fluctuates . On the date I ob- tained the information which was submitted to the Union, the following classifications and number of employees were assigned to maintenance. 37 Millwrights 7 Boilermakers 4 Mobile Equipment Operators 6 Welder Fitters 5 Electricians 2 Instrument Technicians I trust the above information is sufficient for your needs. On 12 February, the Union advised GHR that the letter of 6 February did not satisfy the Union's request of 30 January. The Union also reaffirmed its claim that TCP's employees were "in fact GHR employees per- forming bargaining unit work and are covered by its cur- rent contract . . .." The Union also insisted that the agreement under negotiation would cover TCP's em- ployees. Attorney Meagher, replying for GHR, rejected the Union's claim of entitlement to names and addresses of TCP's employees and argued that GHR had satisfied its legal obligation to provide requested information to the Union . Meagher also rejected the Union's claim that TCP's employees were in fact GHR's employees. Meagher insisted that TCP was an independent contrac- tor. At a negotiating session on 20 February , Meagher insisted that TCP was a company separate from GHR. The parties did not reach agreement on the unit place- ment of TCP's employees. The General Counsel, the Union, GHR, and TCP stip- ulated, and I find, that GHR and TCP have been com- monly owned , have shared some common offices and di- rectors, and have shared some common control over their respective labor relations . The parties have also stipulated and I find that at all times material to these cases, GHR and TCP constituted a single employer. TCP's employees performed construction, construction maintenance, and normal plant maintenance , at GHR's expanding refinery. During January and February 1980, while GHR main- tenance employees were on a training program, 61 TCP employees replaced them, performing plant maintenance. From mid-1980 until mid-1981, TCP employed more than 3,000 employees. There is no bargaining history for TCP's employees. GHR's employee compliment ranged from 500 refin- ery and office employees, including supervisors, to be- tween 1500 and 1600 in 1982 . GHR's maintenance em- ployees were responsible for plant maintenance. GHR's production employees kept watch on the refinery's pro- duction and production schedules. TCP had its own separate president and management, including accounting and personnel departments. TCP also had electrical, structual, pipefitting, welding, quality control and other line operating departments . TCP estab- lished its own disciplinary policy, and its own separate supervision for its employees. TCP had its own offices in trailors, which GHR pro- vided. TCP and GHR had separate telephones and re- ceived separate telephone bills. TCP had its own office manager, office clerical employees, and hired its own employees. TCP's office manager and his clerks, adminis- tered TCP's payroll, invoices, disbursements, purchasing, bookkeeping and timekeeping, separately, and wholly in- dependent of GHR. TCP maintained its own records, personnel files, bills and other records. TCP maintained its own bank accounts from which it paid wages and other expenses. TCP had its own person- nel manager , who dealt with TCP's day-to-day labor re- lations problems. TCP issued invoices for the work it performed at the refinery. GHR paid TCP for such work in the same manner it paid other contractors . The parties stipulated and I find that the same workmen 's compensa- tion insurance policy covers TCP's and GHR's employ- ees. TCP developed and administered separate and differ- ent wage scales and fringe benefits. TCP established GHR ENERGY CORP fringe benefit policies for its maintenance employees. However, it provided no fringe benefits for its employees performing construction work. There was substantial differences between the fringe benefits of TCP and GHR. As of February 1980, GHR provided 71.4 percent of the premium for single health insurance coverage and 69 percent of the premium for family health insurance coverage for the bargaining unit employees. TCP paid 100 percent of the premium for its maintenance employees' health insurance. GHR provided fully paid life insurance for its employees equal to their base salary. TCP's maintenance employees earning up to $10,000 per year received life insurance policies equal to their annual wages. TCP provided maintenance employ- ees earning between $10,000 and $30,000 per year with life insurance equal to one and one-half times their annual wages While TCP gave its maintenance employ- ees nine paid holidays, GHR granted 11 paid holidays to its employees. TCP provided 1 week's vacation after 6 months employment and 2 weeks' vacation after 1 year's employment GHR's employees received 1 week of vaca- tion after 6 months; 2 weeks after 1 year and 3 weeks of vacation after 5 years. In addition, GHR, unlike TCP, paid its employees for 42 hours per week of vacation. GHR provided no uniforms for its employees. TCP pro- vided its employees with work uniforms and shared the cost with its employees on a 50-50 basis. GHR granted sick pay, retirement benefits, a Christmas bonus and a profit-sharing plan to its employees, TCP provided none of these benefits for its employees. TCP required em- ployees to provide their own tools GHR provided tools to its employees. TCP employees used a parking lot separate from the lot GHR assigned to its employees. TCP employees used port-a-lets. GHR provided, its employees with permanent restroom facilities Each employee group had its own timeclock and gate GHR and TCP, each, had its own personnel officer and hiring process. TCP and GHR also differed in the classifications and wages they provided for their employees. As of Febru- ary 1980, TCP employed 30 classifications of employees. Included were a variety of crafts. Hourly wage rates ranged from $6.05 for driver-helpers to $11.30 for weld- ers, fitters, iron welders, operators, millwright, boiler- makers, electricians, and pipefitters, and $11.50 for tech- nicians. As of February 1980, GHR's bargaining unit had 11 classifications of employees consisting of mechanics A and B, laborers, helpers, warehousemen , operators 1 and 2, tank farm men, relief supervisors, laboratory assistants 1st and 2nd class. The hourly,wage rates for GHR's em- ployees ranged from $8.02 for laborers to $10.52 for relief supervisors. Included in GHR's classifications were: millwrights, boilermakers, electricians, welders, and instrument men. Although there was similarity of skills, TCP's employ- ees were generally more skilled and experienced than their GHR counterparts. GHR had 3 or 4 employees ca- pable of performing major maintenance work. Although GHR and TCP employees did not work side-by-side, there was some contact between the two groups. Day-to-day contact between TCP and GHR em- 1051 ployees regularly occurred in the warehouse and in the processing of work orders. TCP and GHR employees drew spare parts from a common warehouse which was under GHR's supervision and control. Also employees from both companies worked at the issuance of parts under GHR's warehouse supervisor, Phil Albarese However, while TCP's employees worked evenings and graveyard shifts at the warehouse, GHR employees worked on the warehouse's day shift. Additional contact occurred when GHR employees performed preparatory or setup work to enable the TCP employees to perform maintenance or repair work and advised the TCP em- ployees of safety precautions to be taken while perform- ing such work. When GHR maintenance employees were not avail- able, when a maintenance project was beyond the capa- bility of GHR's maintenance employees, or in an emer- gency, GHR's supervisors would rely on TCP employ- ees to perform the work, on a contract basis. GHR employed its maintenance employees on some construction and startup work. However, for the most part, GHR's maintenance employees performed normal, routine maintenance on existing equipment . GHR's main- tenance supervisors arranged for TCP's services by direct contact with TCP supervisors. GHR's mainte- nance welders never performed construction work. TCP's maintenance welders also did construction weld- ing. The record also showed one instance in which a TCP electrician worked with a GHR electrician under a single supervisor. Aside from this instance, GHR and TCP exercised separate supervision over their respective employees. 2. Analysis and conclusions The General Counsel contended that GHR and TCP violated Section 8(a)(5) and (1) of the Act on and after 30 January, by refusing to include TCP's construction and maintenance employees as an accretion to the bar- gaining unit of GHR 's production , maintenance, and con- struction employees. GHR and TCP urged rejection of that contention on the ground that the latter's employees were not an accretion to the existing bargaining unit I agree with GHR and TCP that the facts require rejec- tion of the General Counsel's position. In Gould, Inc., 263 NLRB 442, 445 (1982), the Board provided the following guidance on the issue of whether an accretion existed in this case An accretion, as the term has been employed by the Board and the courts, is merely the addition of new employees to an already existing group or unit of employees. In determining whether a new facility or operation is an accretion, the Board has given weight to a variety of factors including integration of operations, centralization of managerial and ad- ministrative control, geographic proximity, similari- ty of working conditions, skills and functions, common control of labor relations, collective-bar- gaining history, and interchange of employees. In the normal situation some elements militate toward and some against accretion, so that a balancing of 1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD them is necessary. Where the new employees are found to have common interests with members of an existing bargaining unit and would have been in- cluded in the certified unit or covered by the cur- rent collective-bargaining agreement an accretion is found to exist. However, where a group of new em- ployees numerically overshadows the existing certi- fied unit and may constitute a separate or independ- ent appropriate unit, the Board is "cautious" to find that the new employees are part of the existing unit since such a finding would deprive the larger group's employees of their statutory right to select their own bargaining representative. In such cases the Board must balance the right of employees to select a bargaining agent against the concomitant statutory objective of maintaining established stable labor relations. [Footnotes omitted.] Applying the Board's policy here, to the situation as of 30 January, the date of the Union's demand ,37[ I find and conclude that TCP's employees did not constitute an accretion to the existing bargaining unit. Geographic proximity, integration of operations, interchangeability, some occasional common supervision, and daily job re- lated contacts between TCP and GHR employees, weigh in favor of accretion. However, there were other factors which persuaded me that TCP's employees should not be added to the existing bargaining unit as an accretion. Thus, while TCP's employees had no bargaining history, GHR's employees have had a union representative since 1971. Further, TCP's employees and GHR's employees generally have separate supervision, administration, and management. Each company maintains separate control of its labor relations including hiring, discipline and dis- charge. I also note that TCP's employees use a separate gate, separate parking, and toilet facilities separate from those which GHR provides for the bargaining unit em- ployees. GHR and TCP devised and implemented sepa- rate and independent policies regarding employee fringe benefits and conditions of employment Finally, the record suggested that at the time of the Union's demand that TCP's employees be added to the existing bargaining unit, the number of TCP employees employed at GHR's refinery was expanding toward 3,000. The record also suggested that the numbers of em- ployees in the bargaining unit as of 30 January was somewhere between 500 and 1,600. Thus, the number of employees the Union wanted to add to the certified bar- gaining unit as of 30 January, might well have exceeded the number of employees in the existing unit. In view of the foregoing, a finding of accretion as of 30 January, the date of the Union's demand for the inclu- sion of TCP's employees in the existing bargaining unit, would be contrary to Board policy Accordingly, I find that GHR and TCP did not violate Section 8(a)(5) and (1) of the Act by refusing to add TCP's employees to the existing certified bargaining unit of GHR's employees, apply the terms of the 1978 contract to them, and to rec- 37 The Board also recognized in Gould, Inc, supra, 263 NLRB at 446, that the issue of whether a group of employees constituted an accretion to an existing bargaining unit "must be determined on the facts that exist- ed on the date of the union's demand " ognize the Union as the exclusive bargaining representa- tive of TCP's employees on and after 30 January I shall therefore recommend dismissal of the allegations in the amended consolidated complaint that GHR and TCP violated those sections of the Act by that refusal. The General Counsel alleged that GHR's refusal to honor portions of the Union's written requests of 30 Jan- uary for information regarding TCP and its relationship with GHR violated Section 8(a)(5) and (1) of the Act. Specifically, the record showed that GHR refused to supply information requested in the six numbered para- graphs of the Union's letter of 30 January. GHR con- tended that its response to the Union's requests for infor- mation regarding TCP and its relationship to GHR did not violate the Act on the grounds that the information withheld pertained to nonunit employees, and the Union had failed to show that it was relevant and necessary to its collective-bargaining function. Contrary to GHR's po- sition, I find that the Union, having shown the probable relevance of the requested information, was entitled to that information, and that GHR's refusal to provide it violated the Act. The Union had substantial ground for suspecting that TCP's employees were properly part of the existing unit. The record showed that the Union's bargaining repre- sentatives were aware that TCP's employees were per- forming construction and maintenance work at GHR's refinery. Some TCP employees worked at GHR's ware- house. Others came to the warehouse on a daily basis to pick up parts to be installed in the refinery. TCP's em- ployees, wearing distinctive uniforms and safety helmets, openly and frequently performed routine maintenance similar to that which GHR's unit employees performed. Union Representatives Simmons and Roan were. aware of these circumstances as they sat at the bargaining table on and after 30 January. I find that the Union by its letter of 30 January, and its demand at the negotiations, on the same date, expressed its desire that TCP's employees be included in the exist- ing bargaining unit and be covered under the collective- bargaining agreement. I also find that the Union, by its letter and demands at the negotiations on 30 January, ex- pressed its good-faith belief that TCP's employees were improperly excluded from the existing unit. Where, as here, the Union had clearly demonstrated and expressed, a good-faith belief as of 30 January, that TCP's employees might have been improperly excluded from the existing bargaining unit, and the collective-bar- gaining agreement's coverage, the Act required that GHR provide the requested relevant information con- cerning TCP.and GHR's relationship with TCP. Ray C. Lapp Air Conditioners, 270 NLRB 641 fn. 2 (1984); Leon- ard B. Hebert, Jr., 259 NLRB 881, 884-886 (1981). By its failure and refusal to provide that information on and after 6 February, GHR violated Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. Respondent, GHR Energy Corp., is an, employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. GHR ENERGY CORP. 2. Respondent, TCP Construction Co., Inc., is an em- ployer within the meaning of Section 2(2), (6), and (7) of the Act. 3. Respondents, GHR Energy Corp. and TCP Con- struction Co., Inc., are a single employer within the meaning of the Act. 4. Oil, Chemical and Atomic Workers International Union, and its Local 4-447, referred to collectively as the Union, are labor organizations within the meaning of Section 2(5) of the Act. 5. All production, maintenance and construction em- ployees including laboratory employees employed by GHR at its refinery in Good Hope, Louisiana, excluding office clerical employees, the chief chemist, shift fore- men, guards and supervisors as defined in the Act consti- tute a unit for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 6, The Union, at all times material , has been, and now is, the exclusive bargaining representative of the employ- ees in the appropriate unit 7. Respondent, GHR, interfered with, coerced, and re- strained its employees in the exercise of rights guaran- teed by Section 7 of the Act, thereby committing unfair labor practices prohibited by Section 8(a)(1) of the Act by: (a) Imposing an excessively broad disloyalty policy on its employees; (b) Suspending indefinitely the following employees for refusing to take a polygraph test without the pres- ence of a union representative, as provided in a collec- tive-bargaining agreement between GHR and the Union: Gerald Benoit Dennis Guarino Robert Snyder Dan R Duncan Ross Allen George LeBourgeois James K. Sharp John Jaskola Steven Miller Henry Vicknair Dino Miranda Eugene Williams Gus Lee Couch Jr. Marion Mericle Gibson Sewell Ronald P. Gaubert (c) Suspending indefinitely Glenn J. Gaubert, William Hubbard Jr, and Teryl Schexnayder because they con- certedly refused to take an unlawfully imposed poly- graph test; (d) Threatening employee Ronald P. Gaubert with sus- pension if he refused to take a polygraph test; (e) Depriving employee Gail Simmons of his right to select a union representative to be present with him at an investigatory interview which was likely to result in dis- ciplinary action. 8. GHR violated Section 8(a)(3) and (1) of the Act by. (a) Discontinuing the sick leave benefits of employees Emanuel A . Seals Jr. and Gregg Williams because it be- lieved that they had actively supported the Union's strike; (b) Offering striker replacements an opportunity to obtain free health insurance benefits and withholding a similar opportunity from employees who had engaged in a strike; (c) Paying striker replacements classified as operators 2 higher wage rates than those paid to employees who had engaged in a strike. 1053 (d) Suspending and later terminating employee Rene Elfer because he engaged in union activity and supported the Union; (e) Discharging employee Gail Simmons because he engaged in union activity. 9. GHR violated Section 8(a)(5) and (1) of the Act by: (a) Unilaterally, and without giving the Union an op- portunity to bargain, enrolling strike replacements in its own health program rather than in the health program granted to bargaining unit employees under the collec- tive-bargaining agreement. (b) Unilaterally, and without giving the Union an op- portunity to bargain, paying bargaining unit employees, hired during a strike, at a higher rate than it paid unit employees in the same classification; (c) Unilaterally, and without giving the Union an op- portunity to bargain, promulgating a disloyalty policy to be enforced against bargaining unit employees. (d) Failing to provide the Union with information which it had requested in its letter of 6 November 1980, regarding the progress of GHR's investigation of the al- leged misconduct of employees John L. Vicknair and Richard E. Hodges as of 6 November 1980, any new evi- dence GHR might have obtained during that investiga- tion, and information regarding whether GHR had dis- charged employees John L Vicknair and Richard E. Hodges, the date of the termination and the reasons for the terminations. (e) Failing to provide the Union with information it had requested in verbal requests on 11, 12, and 21 Febru- ary 1981 and in its letters of 22 January 1981, 23 Febru- ary 1981, 11 March 1981, and 20 March 1981, regarding alleged sabotage and GHR 's investigation of alleged sab- otage, but not including witnesses ' statements, and infor- mation regarding the imposition and results of polygraph tests on bargaining unit and nonbargaining unit employ- ees. (f) Unilaterally, and without giving the Union an op- portunty to bargain, imposing a polygraph test upon unit employees and rescinding Article XXVI, Section 2 of the 1978 collective-bargaining agreement, under which a bargaining unit employee was entitled to union represen- tation upon request "at any stage of the disciplinary pro- cedure directed toward the said employee, including the investigatory stage." (g) Renewing employee William Hubbard Jr.'s indefi- nite suspension because he failed the unilaterally imposed polygraph test. (h) Denying the Union the right to represent employee Steven Brackin in accordance with his request at the grievance meeting on or about 31 October 1980. (i) Failing and refusing to provide the Union with the names of individuals who had reported to GHR that em- ployee Gail Simmons had solicited them on the Union's behalf, as the Union had requested in its letters of 17 July and 18 August 1980. 0) Failing and refusing to provide the Union with in- formation regarding TCP Construction Co., Inc., and its relationship with GHR, which information the Union had requested in its letter of 30 January 1980. 1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10. The unfair labor practices found above affect com- merce within the meaning of Section 2(6) and (7) of the Act. 11. GHR has not violated Section 8(a)(5) and (1) of the Act by terminating the training program provided in the 1978 collective-bargaining agreement. 12. GHR has not violated Section 8(aX5) -and (1) of the Act by eliminating the "breaker day" policy. 13. GHR and TCP did not violate Section • 8(a)(5) and (1) of the Act by failing and refusing to extend the 1978 collective-bargaining agreement to TCP's employees, or by failing and refusing to recognize and bargain with the Union as exclusive representative of TCP's employees, as an accretion to the existing appropriate unit described in paragraph 5 above. 14. GHR did not violate Section 8 (a)(5) and (1) of the Act by refusing to provide the Union with the state- ments of witnesses which GHR obtained in its investiga- tion of sabotage. 15. GHR has not violated Section 8(aX3) and (1) of the Act by suspending employees John L. Vicknair and Richard E. Hodges indefinitely and thereafter refusing to reinstate them. 16. GHR did not violate Section 8(a)(1) of the Act by threatening John L. Vicknair with a lawsuit because he engaged in activity protected by Section 7 of the Act. REMEDY Having found that GHR has engaged in certain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. As GHR discriminated against Gail Simmons by dis- charging him, I shall recommend that GHR be ordered to offer him reinstatement and make him whole for any loss of earnings and other benefits, computed on a quar- terly basis from the date of discharge to the date of proper offer of reinstatement, less any net interim earn- ings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). Having found that GHR discriminated against Rene Elfer by suspending him and thereafter discharging him, I shall recommend that GHR be required to offer him reinstatement and make him whole for any loss of earn- ings and other benefits in the manner prescribed for rem- edying the discriminatory discharge of employee Gail Simmons. Having found that GHR unlawfully suspended the fol- lowing employees, I shall recommend that GHR be or- dered to offer them reinstatement and make them whole for any loss of earnings and benefits in the same manner prescribed for remedying the discriminatory discharge of employee Gail Simmons: Gerald Benoit Dennis Guarino Robert Snyder Dan R. Duncan Ross Allen George LeBourgeois James K. Sharp William Hubbard Jr. Steven Miller Henry Vicknair Dino Miranda Eugene Williams Gus Lee Couch Jr. Marion Mericle John Jaskola Gibson Sewell . Glenn J. Gaubert Ronald P. Gaubert Teryl Schexnayder I shall also recommend that GHR be required to remove from its files any and all references to Gail Sim- mons' discharge, Rene Elfer's suspension or to Elfer's discharge, or to the suspension of the employees listed in the preceding paragraph, and notify them in writing that it has done so and that it will not use Simmons' dis- charge against him, or Elfer's suspension or discharge against Elfer, or the suspensions of the employees listed above against them in any way. Having found that GHR discriminated against employ- ees Emanuel A. Seals Jr . and Gregg Williams by discon- tinuing their sick leave benefits on 1 March 1980, I shall recommend that GHR be required to make them whole by paying to them, with interest, the sick leave benefits due them under Article XXXI of the 1978 collective-bar- gaining agreement, during the period from 1 March 1980 until 16 April 1980 in the case of Seals, and in the case of Williams, from 1 March 1980 until it has been deter- mined either that his disability, on which the benefits are based has ended, or that the contractual right to receive sick benefits has expired, whichever occurs first. Having found that GHR unilaterally afforded strike re- placements an opportunity to enroll in a health insurance program under which they were not required to make any premium payments, and not offering the same oppor- tunity to returning strikers, I shall recommend that GHR cease and desist from any further such practices. I shall also recommend that GHR be ordered to revoke these unilateral changes in the terms and conditions of employ- ment of the bargaining unit employees whom GHR hired as strike replacements. Having found that GHR discriminated against strikers who returned to work, I shall also recommend that GHR make them whole by reimbursing them for health insurance premiums they may have paid for health insur- ance as provided under the 1978 contract from 14 April 1980 until GHR rescinds the premium-free insurance coverage it granted to strike replacements plus interest. I shall also recommend that GHR make whole the strikers who returned to work as operators 2 by paying them at the rate which the 1978 contract provided for operator 1, plus interest, from 14 April 1980 until GHR rescinds its grant of operator I wage rates to strike replacements employed as operators 2. Having found that on 21 May 1980, GHR unilaterally promulgated a disloyalty policy, without giving the Union an opportunity to bargain about it , and which policy excessively restrained its employees in the exer- cise of the rights guaranteed in Section 7 of the Act, I shall recommend that GHR be ordered to rescind its policy statement on disloyalty. Having found that GHR refused to bargain in good faith in violation of Section 8(a)(5) and (1) of the Act by failing and refusing to provide the Union with informa- tion which it requested in its letter of 6 November 1980, regarding the progress of GHR's investigation of the al- leged misconduct of employees John L. Vicknair and Richard E. Hodges, any new evidence GHR had ob- GHR ENERGY CORP 1055 tained in its investigation, and information regarding whether GHR had terminated them, I shall recommend that GHR be required upon request to furnish the infor- mation to the Union. Having found that GHR refused to bargain in good faith in violation of Section 8(a)(5) and (1) of the Act by failing and refusing to provide the Union with the names of individuals reporting knowledge of solicitation by em- ployee Gail Simmons, I shall recommend that GHR be required to furnish that information upon request. Having found that GHR violated Section 8(a)(5) and (1) of the Act by unilaterally, and without giving the Union an opportunity to bargain, imposing a lie detector test upon the employees in the bargaining unit described above in paragraph 5 of the Conclusions of Law, as a condition of employment, I shall recommend that it re- scind its policy of administering that test to the employ- ees in the unit described in paragraph 5 of the Conclu- sions of Law. Having found that GHR violated Section 8(a)(5) and (1) of the Act by unilaterally and without bargaining with the Union, modifying the 1978 contract's provision calling for union representation to employees "At any stage of the disciplinary procedure directed towards the said employees, including the investigatory stage" I shall recommend that GHR be required to rescind the modifi- cation of that provision. Having found that GHR refused to bargain in good faith in violation of Section 8(a)(5) and (1) of the Act by failing to provide the Union with information regarding TCP Construction Co., Inc., and its relationship with GHR as more fully set forth in the Union's letter of 30 January 1980, I shall recommend that GHR be required to furnish that information to the Union upon request. [Recommended Order omitted from publication.]