A & T Glass Co., Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1977

231 N.L.R.B. 998 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A & T Glass Company, Inc., and A & T Auto
Radiator, Inc.1 and Glass Warehouse Workers and
Paint Handlers, Local Union 206, International
Brotherhood of Painters and Allied Trades, AFL-
CIO. Cases 29-CA-5166 and 29-CA-5166-2
August 31, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On April 13, 1977, Administrative Law Judge
Donald R. Holley issued the attached Decision in
this proceeding. Thereafter, the Union and the
General Counsel filed exceptions and supporting
briefs, and the Respondents filed an answering brief
in opposition to these exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, 2 and conclusions of the Administrative Law
Judge to the extent consistent herewith, to modify his
remedy,3 and to adopt his recommended Order, as
modified herein.
The Administrative Law Judge has found that
Respondent Glass' July 304 discharge of employee
Dennis Pulver was discriminatory. He reached this
result, with which we agree, based on the credited
testimony of Pulver and his finding that Respondent
Glass openly expressed its hostility towards the
Union, and Pulver as a union activist, shortly before
it fired him. Respondent's president, Osterloh,
however, asserted that he had fired Pulver for
drinking.
In contrast, the Administrative Law Judge found
that Pulver's August 25 discharge (he was reinstated
on July 30) was for cause, based on the credited
testimony of President Osterloh, whom he had
otherwise found to be "an unimpressive witness." In
reaching the result above, the Administrative Law
Judge found that Respondent Glass ended its
I The caption appears as amended at the hearing.
" Although Members Penello and Walther agree with the finding of the
Administrative Law Judge that employee Leonard Prenderville was
discharged for lack of a driver's license necessary to his work, they do so
without relying on Respondent Glass' September 22, 1976, letter offering
Prenderville reemployment contingent on the reinstatement of that license.
The General Counsel in his brief attacks certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 90 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
231 NLRB No. 167
condonation of any employee drinking on the job
when it offered Pulver reinstatement conditioned on
his promise to refrain from drinking on the job.5 The
Administrative Law Judge further found, in support
of his conclusion, that Pulver's second discharge was
unconnected with his union activities and that
Respondent Glass had no knowledge of its employ-
ees' renewed interest in the Union during the period
from July 30 until August 25. We disagree with the
above findings and conclusions. We are convinced,
and so find, that Pulver was discharged for the
second time on August 25 because of his role as
instigator of union activity in Respondent's glass
shop and, further, that the reason given by Respon-
dent Glass for discharging him, i.e., his drinking on
the job, was again pretextual. We reach this conclu-
sion based on the record as a whole, noting especially
those facts detailed below.
To recapitulate the events leading up to the August
25 discharge, Pulver was one of three employees who
initiated the union activity in Respondent's auto
glass and radiator shop. He was initially discharged
by Osterloh on July 30. On that date, Osterloh first
learned of his employees' interest in the Union. Early
in the day, Osterloh interrogated employee Thomas
Luald concerning the extent of Pulver's union
activities, as well as those of other employees. Later,
Osterloh told Luald that Pulver was fired, but did not
know it, because he was "instigating a lot of union
garbage." On the evening of July 30, following a
meeting with employees, Osterloh fired Pulver,
telling him: "You created a gigantic mess with the
Union. You are a good mechanic. I hate to lose you,
but because of this, I have to let you go." Based on
the above, the Administrative Law Judge concluded,
and we agree, that Pulver was discharged on July 30
because of his union activity in violation of Section
8(a)(3) of the Act.
Pulver was reinstated almost immediately. Directly
after he was terminated, several employees, including
Robert Gonnelly, persuaded Osterloh to take Pulver
back, warning him that Pulver's discharge, asserted
as being partly for drinking, would look "fishy,"
occurring as it did in the midst of a union campaign.
Osterloh agreed to reinstate Pulver but only if he
3 In accordance with our decision in Florida Steel Corporation, 231
NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior
to August 25, 1977, in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
4 All dates hereinafter are 1976.
5 As noted by the Administrative Law Judge, "the record reveals Pulver
and most of Respondent Glass' glazier-installers drank beer during their
working time. This activity was not strenuously discouraged by Osterloh or
Wisel [secretary-treasurer of Respondent Glass as the employees openly
collected money for beer in the shop around 4 p.m. in the afternoon and
Osterloh and Wisel contributed on occasion and permitted the employees to
keep the beer in a refrigerator located on the premises."
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A & T GLASS COMPANY
promised to refrain from drinking on the job and
come in at 8 a.m.
The Administrative Law Judge further found,
however, that Osterloh's warning was specifically
directed to Pulver, and not to his employees
generally. Because of the specificity of Osterloh's
prohibition, we find that Osterloh in effect created a
special rule for Pulver alone, notwithstanding, as
found by the Administrative Law Judge, that he
knew of no incident of Pulver drinking on the job
prior to his July 30 discharge. Osterloh also admitted
on cross-examination that "We have a number of
trucks and all the men have had occasions when 1,
Wisel, or Lage have found beer cans in their trucks."
We therefore conclude that Pulver's conditional
reinstatement was motivated in part by Respondent
Glass' desire to retaliate for his union activities.
During the first part of August, employee interest
in the Union subsided, perhaps because of the
discriminatory discharges of Luald and Pulver,
perhaps due to the substantial promises of benefit
made by Respondent Glass upon its discovery of
union activity in its shop. In any event, the abrupt
discharge of an employee for exercising what was
thought to be the newly granted privilege of a day off
for personal business rekindled interest in the Union
on or about August 9. Also in August, in the weeks of
August 6-12 and 25-30, Respondent Glass adver-
tised for auto glaziers (the job performed by Pulver
and alleged discriminatee Prenderville).
On August 25, according to his testimony, Osterloh
observed Pulver drinking a can of beer while stopped
in his truck at a stop sign.6 Osterloh returned to his
shop, had Pulver called in, and discharged him. The
same afternoon, Respondents' secretary-treasurer,
Wisel, asked employee Prenderville, Pulver's friend
and roommate, whether he knew anything about any
union activity going on, saying he would appreciate
hearing about it. Although the Administrative Law
Judge limited his finding on this evidence to 8(a)(1)
coercive interrogation, we conclude that such inter-
rogation indicates that Respondent Glass knew or
suspected that renewed union activity was present in
its shop.
Contrary to the Administrative Law Judge, we are
persuaded by this record, including the events
described above, that Pulver's second discharge on
August 25 grew out of the union activity he initiated
and Employer's concern over possible resurgence of
union activity in Respondent Glass' shop during the
latter part of August. Normally, of course, an
employer is justifiably concerned when it discovers
its employees drinking on the job, but this employer
i Pulver denied this. and the General Counsel contends that the record
as a whole does not support the Administrative Law Judge's crediting
Osterloh on this incident. Alternatively. the General Counsel contends that
had actually encouraged its employees to drink beer
on the job, rather than discouraging such activity.
Respondent Glass knew of such activity for a
considerable period preceding the start of the union
campaign, yet did nothing to stop the practice until it
discovered Pulver's union involvement. Immediately
thereafter, the Respondent unlawfully discharged
Pulver, asserting as a pretext that he had been
drinking on the job. Although Pulver was reinstated
shortly after his discharge, we have found herein-
above that the Respondent's offer of reinstatement
was conditioned unlawfully on his promise to refrain
from drinking on the job. This condition, in our view,
was not based on legitimate business considerations
but was motivated by Pulver's union activities.
Accordingly, we conclude that Pulver was dis-
charged on August 25 in violation of Section 8(a)(3)
and (1) of the Act for failing to comply with the
terms of an unlawful offer of reinstatement.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dents, A & T Glass Company, Inc., and A & T Auto
Radiator, Inc., Amityville, New York, their officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
I. Substitute the following for paragraph 2(a):
"(a) Offer Thomas Luald and Dennis Pulver
immediate and full reinstatement to their former
positions or, if such positions no longer exist, to
substantially equivalent positions, without prejudice
to their seniority or other rights previously enjoyed,
and make them whole for any loss of pay due to the
violations against them in accordance with the
manner set forth in 'The Remedy.' "
2. Substitute the attached notice for that of the
Administrative Law Judge.
CHAIRMAN FANNING, concurring in part and dissent-
ing in part:
Unlike my colleagues, I would find an 8(a)(3)
violation as to Prenderville, who since the July 30
meeting was identified to Respondent Glass as an
employee who had announced that the employees
wanted union benefits. The Administrative Law
Judge ignored the impact of Respondent's attempted
interrogation of Prenderville on August 25 concern-
ing renewed union activity at the plant-an attempt
even if Pulver were dnnking beer in his truck it is clear, from Respondent
Glass' condonation of such behavior among its other employees. that
Pulver's drinking was not the real reason for his discharge.
999
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
blocked by Prenderville's refusal to answer-and
instead emphasized that, in the 11 days since
Prenderville had lost his driver's license and had
been working wholly in the plant, Respondent had
no knowledge that he had "signed a union card" or
engaged in "other" union activities. That sort of
knowledge was not necessary. Failure to cooperate
with company interrogation about the Union was
conduct that accounted for discriminatee Luald's
discharge on July 30, as the Administrative Law
Judge found. A comparison with his earlier finding
of discrimination as to Luald does not appear in the
Administrative Law Judge's Decision despite marked
similarity of circumstance. As to Luald, the Adminis-
trative Law Judge did not credit President Osterloh;
as to Prenderville, he did, specifically because of
independent objective facts, such as the suspension
of Prenderville's license, the apparent maintenance
of certain benefits for Prenderville until September
24, and the self-serving letter to Prenderville, dated
September 22, after the charge had been filed. This
letter describes the events of August 27 as a
temporary layoff and ostensibly offers reemployment
if the license were procured. The Administrative Law
Judge viewed Prenderville as having ignored the
letter, though insufficient time for discriminatee
response to a reinstatement offer was contained in
it.7
The Administrative Law Judge concluded that the
General Counsel failed to prove that Prenderville
was terminated in violation of Section 8(a)(3). On the
above facts, I cannot agree. Prenderville's August 25
refusal to cooperate in discussing union activities,
found by the Administrative Law Judge to be 8(a)(l)
coercive interrogation but omitted from mention in
his "Analysis" of the 8(a)(3) allegation, was, in my
view, as much a part of the decision to "sever"
Prenderville on August 27 as his being sick for 2
days, or no longer having a license. Thus, the August
27 action was a discriminatory discharge or layoff,
not a layoff for lack of work, and the discriminatee is
entitled to an appropriate reinstatement and backpay
order.
I See Penco Enterprises, Inc., Penco of Ohio, and Acoustical Contracting
and Supply Corp., 216 NLRB 734, 735 (1975).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to
give evidence, the National Labor Relations Board
has found that we violated the National Labor
Relations Act and we have been ordered to post this
notice.
The Act gives all employees the following rights:
To engage in self-organization and to
form, join, or assist any union
To bargain collectively through represent-
atives of their own choosing
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT do anything that interferes with
these rights.
WE WILL NOT interrogate you regarding your
union activities or sentiments or regarding the
union activities or sentiments of your fellow
employees.
WE WILL NOT threaten employees with dis-
charge or plant closing because they choose to
engage in union activities.
WE WILL NOT grant benefits to dissuade you
from participating in union activities.
WE WILL NOT discharge employees for engaging
in union activity on behalf of Glass Warehouse
Workers and Paint Handlers, Local Union 206,
International Brotherhood of Painters and Allied
Trades, AFL-CIO, or any other labor organiza-
tion.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights under Section 7 of the Act.
WE WILL offer Thomas Lauld and Dennis
Pulver immediate and full reinstatement to their
former jobs or, if such jobs no longer exist, to
substantially equivalent positions of employment,
without prejudice to their seniority or other rights,
and WE WILL make them whole for any loss of
pay they may have suffered by reason of our
discrimination against them, with interest.
A & T GLASS COMPANY,
INC.
A & T AUTO RADIATOR,
INC.
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, Administrative Law Judge: Upon
charges filed by the above-named Union on September 1
and 9, 1976, respectively, a complaint was issued on
October 29, 1976, alleging that A & T Glass Company,
Inc., herein called Respondent Glass, had engaged in and
1000
A & T GLASS COMPANY
is engaging in unfair labor practices within the meaning of
Section 8(a)(l) and (3) of the National Labor Relations
Act, as amended, herein called the Act. Respondent Glass
filed an answer denying the commission of the unfair labor
practices.
The case was heard in Brooklyn, New York, on January
10 and 11, 1977. All parties were afforded full opportunity
to participate in the hearing. Near the close of the
proceeding, General Counsel amended the complaint to
allege that Respondent Glass and A & T Auto Radiator,
Inc., herein called Respondent Radiator, constitute a
"single integrated business enterprise" within the meaning
of the Act.' Additionally, General Counsel amended the
complaint to allege that one Elmer Downes is, and has
been at all times material herein, an agent of Respondent
Radiator and a supervisor within the meaning of Section
2(1 1) of the Act.
Following the close of the hearing, counsel for Respon-
dents filed a brief with the Administrative Law Judge.
Upon the entire record, the closing arguments by counsel,
and Respondent's brief, I make the following:
FINDINGS OF FACT
2
1. JURISDICTION
The complaint alleges and the answer admits that
Respondent Glass is a New York corporation with its main
office and place of business located at 199 Sunrise
Highway, Amityville, New York, where it is engaged
primarily in the installation of automobile windshields and
in the performance of related services for various automo-
tive body shops, automobile dealers, and insurance
companies. During the past year, a representative period, it
purchased and caused to be delivered to its Amityville
operation, from points located outside the State of New
York, goods and materials valued in excess of $50,000. It
was admitted, and I find, that Respondent Glass is engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
Respondent Radiator, also a New York corporation,
maintains its main office and a place of business at 199
Sunrise Highway, Amityville, New York, where it is
engaged in the pickup, repair, and delivery of automobile
radiators. General Counsel offered no evidence which
would reveal that Respondent Radiator independently
meets the Board's jurisdictional standards. Instead, he
requests that jurisdiction be asserted upon a single
employer theory.
Donald Osterloh, the president of both named Respon-
dent companies, testified concerning their operations. They
are separate legal entities which share the premises at the
Amityville location, with each having a separate telephone
number and a separate entrance. The books for each
The amendment was accomplished by alleging appropnate ultimate
facts as pars. 2(B). 3(B), and 4(B) to the complaint. It is noted that General
Counsel inadvsertently referred to the added Respondent as A & T Auto
Radiator Corporation, A & T Auto Radiator Corporation. Inc.' and A & T
Radiator Company I find the correct name to be A & T Auto Radiator, Inc.
2 All dates are 1976 unless otherwise indicated.
U pon the undisputed testimony revealing that Elmer Downes hires.
fires. and effectivekl supervises the employees of Respondent Radiator. I
find he is an agent of the corporation and a supervisor within the meaning of
Sec. 2(1 I)ofthe Act.
corporation are separately maintained in an office on the
premises which is shared by the corporations. The
corporations file separate tax returns, keep separate
payrolls, have separate workmen's compensation and other
insurance, separately own vehicles used in their respective
businesses, and advertise in the newspapers separately.
Donald Osterloh owns 50 percent of the stock of
Respondent Glass and 80 percent of the stock of Respon-
dent Radiator. Elmer Downes, the secretary-treasurer of
Respondent Radiator, owns the remaining 20 percent of
the stock of that corporation and Donald Wisel, secretary-
treasurer of Respondent Glass, owns the remaining 50
percent of the stock of that corporation. Downes and
Osterloh hire, fire, and determine the working conditions of
Respondent Radiator's employees, with Osterloh making
some management decisions without consulting Downes.3
Management decisions regarding Respondent Glass are
jointly made by Osterloh and Wisel and each has and
exercises the authority to hire, fire, and responsibly direct
its employees. 4
Some 14 persons perform what might be called produc-
tion and maintenance work at the Amityville premises.
Respondent Glass there utilizes eight glazier-installers who
load their trucks at the premises and thereafter travel to the
customer's place of business where they install automobile
windshields and related parts. They are supervised by
Robert Lage who responsibly directs them in the perfor-
mance of their duties.5 The glazier-installers drive trucks
owned by Respondent Glass and two of these trucks
advertise radiators. The glazier-installers do not repair
radiators, but on occasion they will pick up radiators which
are to be taken to the premises for repair and on occasion
they will deliver to customers radiators which have been
repaired. Respondent Radiator utilizes six employees at the
Amityville location; three are radiator repairmen and the
other three are truckdrivers who pick up and deliver
radiators. They are supervised by Elmer Downes. Respon-
dent Radiator's employees do not install glass, but its three
truckdrivers will occasionally pick up and deliver glass.
The corporations do not reimburse each other for the
pickup and delivery services they perform for each other.
The trucks owned by Respondent Radiator all advertise
glass. As revealed by Charging Party Exhibit I, both
corporations hold themselves out to be one through the use
of stationery with the joint name A & T Auto Radiator and
Glass.
In addition to the interchange of employees of the two
corporations with respect to pickup and delivery of glass or
radiators, the record reveals that Downes gives some work
instructions to Respondent Glass employees and Lage
gives some work instructions to Respondent Radiator
employees. 6 Significantly, Downes attended a meeting held
by Osterloh and Wisel with Respondent Glass employees
4 As alleged in the complaint, and admitted in the answer, I find that
Donald Osterloh and Donald Wisel are agents of Respondent Glass and
supervisors within the meaning of Sec. 2(11) of the Act.
5 The answer admits. and I find, that Lage is an agent of Respondent
Glass and a supervisor within the meaning of Sec. 2(11 ) of the Act.
6 Alleged discnminatee Thomas Luald testified he spent approximately
25 percent of his time delivering or installing glass. Osterloh denied Luald
installed glass while being paid by either corporation. I credit Osterloh's
(Continued)
1001
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on July 30 at which their benefits were discussed. The
record also reveals that the employees of both corporations
frequently use Respondent Glass equipment and materials
to perform glasswork during their off-duty hours. Respon-
dent Glass is reimbursed on those occasions for the use of
its equipment and materials.
Analysis
To determine whether separate legal entities constitute a
single integrated enterprise, the Board and courts consider
(1) integration of operations, (2) centralized control of
labor relations, (3) common management, and (4) common
ownership or financial control. Barwise Shut Metal Co.,
Inc., et al., 199 NLRB 372, 378 (1972); Marine Welding and
Repair Works, Inc., et al. v. N.LR.B., 439 F.2d 395 (1971).
Common ownership alone is insufficient to justify a
conclusion that such businesses constitute a single employ-
er, but common ownership coupled with significant
integration of operations uniformly results in a conclusion
that such entities are single employers in legal contempla-
tion. See Scalera Bus Service, Inc., 210 NLRB 63 (1974);
and Suburban Transit Corp., 202 NLRB 465, 472-473
(1973).7
In the instant case, common ownership and central
determination of labor relations policy were clearly
established through proof of Osterloh's ownership of 50
percent of Respondent Glass, 80 percent of Respondent
Radiator, and evidence revealing his day-to-day participa-
tion in the affairs of both. He is clearly the dominant figure
in both corporations. While the two businesses in question
could be operated independently, the record reveals they
are held out to the public as one single business, and
considerable integration is shown through occupancy of
the same building, sharing of office space where their
records are kept, joint top management supervision of both
by Osterloh, use of common stationery and advertising one
another's services on vehicles, integration of employees in
the pickup and delivery of glass and radiators, and the fact
that the employees of both corporations use equipment and
material owned by Respondent Glass to do outside work.
Apart from Osterloh, some overlap in labor relations
matters was shown by Downes' attendance at a meeting
held with Respondent Glass employees, and some overlap
of supervision exists with regard to instructions given
employees of both corporations by Downes and Lage with
regard to pickup and delivery of radiators and glass. While
no single factor discussed would, standing alone, show the
entities to be single integrated enterprises, I find that
collectively the above discussed factors compel the conclu-
sion that Respondent Glass and Respondent Radiator
constitute a single employer within the meaning of the Act.
denial and, in the absence of specific testimony concerning Luald's alleged
glass installation work, refrain from attaching undue weight to this
testimony. I find Luald's glasswork on company time related primarily to
deliveries.
I Cf. Milo Express, Inc., and Keystone Lawrence Transfer Company, 212
NLRB 313 (1974).
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
Summarized, the remaining issues in this case are:
whether Respondents engaged in unlawful interrogation,
utterance of threats, and grant of benefits during the period
July 30 to August 31, 1976, as alleged in paragraphs 9, 10,
I1, and 12 of the complaint and whether Respondents
discharged employees Dennis Pulver, Thomas Luald, and
Leonard Prenderville in violation of Section 8(a)(3) of the
Act on the dates indicated in paragraph 13 of the
complaint.
B. Background
The union organization campaign which led to the
incidents involved herein was commenced by the Union in
February 1976 and again in April. Union Agent Mike
Karp visited the Amityville location and apparently
accomplished nothing. Thereafter, in late June or early
July, he came upon Thomas Luald while Luald was out of
the shop having lunch. Karp then discussed the benefits of
union representation with Luald, gave him a number of
union authorization cards, and requested that he kick the
matter around with his fellow employees to see if they were
interested.
Lauld testified he thereafter gave half the cards to
employee Pulver and the matter was discussed among the
eight glazier-installers employed by Respondent Glass. In
late July, Pulver contacted the Union to indicate that the
employees of Respondent Glass wanted a meeting with
union representatives and an August 2 date was set for the
meeting, which was to be held at the Cross Island Motel at
7 p.m. While the record reveals Pulver and Luald
distributed cards among Respondent Glass employees and
that most of them signed cards at some time or other, the
date of signing was fixed only as to Luald (July 23 or 24),
Pulver (August 23), and Prenderville (August 24 or 25). The
union meeting scheduled for August 2 was never held and
no petition for an election had been filed by the Union
prior to the hearing held on January 10 and II, 1977. The
cause of the collapse of the union campaign is revealed
hereinafter.
C. The Alleged 8(a)(1) Violations
1. The Luald-Osterloh incident
During the workday on July 30, Donald Osterloh learned
that Respondent Glass employees were interested in a
union and that a meeting was to be held on August 2.8
When alleged discriminatee Luald returned from delivering
radiators that afternoon, Osterloh engaged him in conver-
sation. Luald testified Osterloh said "Where the hell is your
friend Dennis [Pulver]? He is instigating a lot of union
garbage and before I put up with that shit I will close the
8 Osterloh denied such knowledge, but employee Dennis Pulver's
uncontroverted testimony reveals Supervisor Robert Lage told him on
August 2 that on the preceding Friday he had been informed of the
employees' interest in the Union and of the scheduled August 2 meeting by
a customer and Lage told Pulver he passed the information on to Osterloh
on July 30.
1002
A & T GLASS COMPANY
place down-fire everyone. I don't have to put up with that
nonsense. He's fired and he doesn't even know it yet."
When Luald stated he didn't know anything about it,
Osterloh asked him who was involved and who the
business agent was. Luald again replied he did not know
and Osterloh took him to the back office where Wisel,
Respondent Glass' secretary-treasurer, was at the time. In
Wisel's presence, Osterloh observed Luald was supposed to
be the manager of the new shop.9 He then asked "How far
has Dennis gotten into the Union-who signed cards-
who has Dennis spoken to?" Luald replied he didn't know,
that Osterloh would have to talk to Dennis. Osterloh then
informed him he could not use him in the new shop and
allegedly stated he paid him for that day and expected him
to work the day out.
Osterloh denied having had any conversation with Luald
concerning Pulver or the Union on July 30. He testified he
merely informed Luald on that day that he could not use
him anymore because he had learned he was collecting
unemployment moneys from the State of New York while
being paid by Respondent Glass. I credit Luald.' °
Accordingly, I find that Respondent Glass, through
Osterloh's July 30 discussion with Luald, interrogated an
employee concerning his union activities and the union
activities of other employees and threatened to discharge
employees because of their union activities, all in violation
of Section 8(a)(1) of the Act.
2. The July 30 and August 2 meetings
After discovering that Respondent Glass employees were
interested in a union, Osterloh scheduled a meeting of
those employees at quitting time. Osterloh, Downes, and
Wisel attended the meeting together with all the glazier-
installers except Pulver. Alleged discriminatee Leonard
Prenderville testified Osterloh started the meeting by
commenting, "If you guys had a problem, how come you
didn't come to me?" No one answered, and Osterloh asked,
"What is this I hear about the Union? What do you think
the Union can do for you?" When there was no reply,
Osterloh allegedly said he had fired Dennis for union
activities and drinking on the job and he told the
employees to write down what they wanted for benefits on
a piece of paper and bring the paper to his office. Osterloh,
Downes, and Wisel left the meeting at this point, and the
employees listed their desired benefits as: (I) seven paid
holidays, (2) 5 days' sick leave, (3) I week of paid vacation
after I year of service-2 weeks after 2 years' service, (4) 2
personal days off per year, (5) a pay increase, (6) company-
paid Blue Cross-Blue Shield insurance, (7) periodic
grievance meetings, (8) wage review every 6 months, and
(9) pay for 30 minutes of the I-hour lunch period which
they claimed they worked." Robert Gonnelly, who acted
4 Luald had previously been informed he would be made manager of a
new radiator shop to be opened in Williston Park. New York.
"' Respondent's counsel contends Luald should not be credited because
he collected unemployment compensation while being paid under the table
by Respondent Radiator, Luald informed Supervisor Downes of this matter
when he was hired and he made no effort to conceal the situation at the
hearing. I found Luald to be a straightforward witness. On the other hand,
Osterloh was not an impressive witness. For instance, his denial that he
learned of the employees' interest in the Union and their scheduled August 2
as the employees' spokesman, testified Osterloh indicated
general agreement with the demands on July 30.
Osterloh testified he scheduled a second meeting with the
glazier-installers for 5 p.m. on August 2 because it
appeared they still did not understand what their benefits
were. Alleged discriminatee Pulver testified Osterloh
started the meeting by commenting they had a big mess
there with the Union on Friday; this could have been
avoided if they had come to him first-something could
have been worked out. Osterloh then said, if it came down
to it, he would get rid of all the employees and Lage and
Wisel would get in a truck and work. Osterloh then
indicated there were new benefits and he was going to
adhere to them. He asked if Gonnelly still had the card
(piece of cardboard) and, when the employee said no,
pieces of paper were passed out. The benefits were then
reviewed. Pulver testified the employees were then under
the impression that they were to receive the vacation
requested (1 week after I year and 2 weeks after 2 years),
seven paid holidays, 5 days' sick leave, company-paid Blue
Cross Blue Shield insurance, one personal day, wage review
each 6 months, a grievance meeting each month, and pay
for one-half hour of their lunch hour. The record reveals
these employees previously received I week of paid
vacation after I year of service and I week vacation each
year thereafter; that decisions to pay for sick time were
previously made on an ad hoc basis, with some employees
being paid for more than 5 days; that they had previously
received seven paid holidays but had not received a
personal day; that they had not previously enjoyed
company-paid accident and health insurance (Gonnelly
was an exception); and that no regular grievance meetings
or wage reviews had been previously enjoyed.
During his testimony, Osterloh acknowledged conduct-
ing the meetings and acknowledged the fact that he agreed
to the sick leave, the company-paid insurance, the personal
day, and pay for all time worked (the one-half hour at
lunch). He testified no agreement was reached on the 2-
week vacation request, and the agreement was merely to
hold periodic meetings in the future rather than one every
month. In fragmentary fashion pursuant to leading
questions, he denied making reference to the Union at
either meeting, denied telling employees at the first meeting
that he fired Pulver for union activities, and denied that he
threatened to fire all the men and close the shop at either
meeting.
I credit the version of the first meeting given by
Prenderville except for his assertion that Osterloh told the
employees he had fired Pulver for his union activities.
Osterloh denied making such a comment and employee
Gonnelly corroborated his denial that he told employees
Pulver had been fired for his union activities. I conclude
Prederville's recollection was faulty and credit Osterloh's
meeting on July 30 is most unconvincing when viewed in light of events
which occurred on July 30 and August 2 which are detailed hereinafter.
" The demands made at the July 30 meeting were written on a piece of
cardboard which was not presented at the hearing. Consequently, the record
does not clearly reveal whether all the demands listed above were made on
that date or during that meeting and at a subsequent meeting held August 2.
Regardless of when they were made, the list represents all demands made by
the employees.
1003
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denial. I credit Pulver's version of the August 2 meeting.
Pulver was corroborated in part by Gonnelly, who testified
against Respondent Glass most reluctantly. Osterloh's
denial of the adverse comments attributed to him during
both meetings was not convincingly accomplished and his
explanation of the alleged reason for conducting the
meetings and granting the new benefits is simply not
believable in the circumstances. Accordingly, I find, as
alleged, that Respondent Glass through Osterloh's actions
at the meetings of July 30 and August 2 violated Section
8(a)(1) of the Act by: (1) coercively interrogating employ-
ees concerning their union activities; (2) threatening
employees with discharge if they become or remained
members of the Union; and (3) threatening employees by
stating it would close the business if they became or
remained members of the Union. I further find that this
Respondent violated Section 8(a)(l) of the Act on July 30
and/or August 2 by granting employees' demands for new
benefits to induce them to refrain from exercising the rights
guaranteed them by Section 7 of the Act.
3. August 25 Wisel-Prenderville incident
Prenderville testified, without contradiction, that Wisel
approached him at approximately 3 p.m. on August 25 and
then asked him "if I knew anything about union activities
going on?" Prenderville replied he did not, and Wisel
replied, "Well, if you hear anything let me know, I
appreciate it." Wisel was present at the hearing but he was
not called as a witness. In the circumstances, I must
presume his testimony, if called, would have been adverse
to Respondent Glass. Accordingly, I find that Respondent
Glass coercively interrogated Prenderville concerning his
union activities and those of his fellow employees on
August 25 and that such interrogation violated Section
8(a)(1) of the Act as alleged.
D. The Alleged 8(a)(3) Violations
i. The Luald discharge
Thomas Luald was hired by Elmer Downes in late June
1976. At the time of hire, Luald informed Downes he was
receiving unemployment compensation. He was hired as a
truckdriver and engaged primarily in the pickup and
delivery of glass.'2 He was paid $30 per day out of the petty
cash funds of Respondent Radiator and his immediate
supervisor was Elmer Downes.
About a week after he was employed, Luald was
approached by Union Agent Mike Karp who described to
him the benefits the Union had obtained for its members
and encouraged him to discuss unionization with Respon-
dent Glass employees. Karp supplied Luald with an
undisclosed number of cards which he subsequently shared
with alleged discriminatee Pulver, who had previously been
a member of the Union. Luald testified that he distributed
cards among the glazier-installers and that he signed a card
on July 23 or 24.
During the 5- or 6-week period of his employment,
Osterloh indicated his approval of Luald's ability and work
12 Luald testified he spent approximately 25 percent of his worktime
handling glass and installing glass. As indicated at fn. 6, supra, I credit
Osterloh's testimony that Luald did not install glass while on company time.
by informing him he intended to make him the manager of
a new shop which Osterloh intended to open in Williston
Park, New York. This offer was retracted abruptly on July
30 when Osterloh interrogated Luald at length concerning
the extent of Pulver's union activities and the union
activities of other employees and Luald refused to
cooperate with Osterloh by professing ignorance and
refusing to truthfully answer his questions. At the conclu-
sion of the interrogation, which is set forth in detail in the
section of this Decision entitled "The Alleged 8(a)(I)
Violations," Osterloh allegedly told Luald he could not use
him as manager of the new shop-he had paid him for the
day and expected him to work it out. Osterloh personally
handed Luald his cash pay at times during his employment.
Osterloh denied interrogating Luald regarding the union
activities of Pulver and other Respondent Glass employees.
As previously indicated, I credit Luald's version of the
incident. With respect to the reason for discharge, Osterloh
testified he learned several days before July 30 that Luald
was collecting unemployment compensation while in the
employ of Respondent Radiator and this caused him to
decide that Luald's connection with the Company must be
severed. Osterloh claimed he told Luald that he was firing
him for this reason.
Analysis
Osterloh's assigned reason for terminating Thomas
Luald is patently pretextual. His claim that he had no
knowledge of the fact that Luald was collecting unemploy-
ment compensation while working for Respondent Glass is
belied by the undisputed fact that Downes was fully aware
of the situation when he hired Luald and Osterloh himself
paid the employee in cash. Such circumstances compel an
inference that Osterloh was fully aware of the unemploy-
ment compensation matter long before July 30. If such was
the fact, and I find it was, the assigned reason for Luald's
discharge does not withstand scrutiny.
The real reason for the discharge is equally obvious.
Luald's credited testimony reveals he was terminated
immediately after he refused to answer Osterloh's questions
about the extent of the union activities of Pulver and other
employees. Osterloh knew Luald and Pulver lived in the
same house, and he had reason to conclude that Luald was
shielding Pulver and the other employees during the
interrogation in question. In my view, Luald's refusal to
cooperate by truthfully answering Osterloh's questions
precipitated his discharge. Accordingly, I find that Thomas
Luald was discharged by Respondent Radiator in violation
of Section 8(aX)( 1) and (3) of the Act as alleged.
2. The Pulver discharges
Dennis Pulver was employed by Respondent Glass as a
glazier-installer for approximately 2-1/2 years. The fact
that he was a competent workman is conceded. Prior to
July 30, his relationship with Osterloh was close as is
evidenced by the fact that he was the only glazier-installer
invited to attend Osterloh's most recent birthday party at
his home and the further fact that Osterloh referred
1004
A & T GLASS COMPANY
glasswork, principally installation of mirrors, which he did
not wish to have Respondent Glass perform, to Pulver.
Pulver paid Osterloh for the use of Respondent Glass
equipment and materials used in the performance of such
outside work and kept the remainder of the money or
divided it with those persons who assisted him in the work.
The record reveals Pulver and most of Respondent
Glass' glazier-installers drank beer during their working
time. This activity was not strenuously discouraged by
Osterloh or Wisel as the employees openly collected money
for beer in the shop around 4 p.m. and Osterloh and Wisel
contributed on occasion and permitted the employees to
keep the beer in a refrigerator located on the premises. Beer
consumption on the premises usually commenced when the
glazier-installers returned to the shop for the day.
Subsequent to the time that Luald discussed possible
unionization of Respondent Glass employees with Karp,
Pulver and his fellow employees discussed the matter and,
as a consequence, Pulver telephoned the Union on July 26
or 27 to arrange a meeting of the employees with union
representatives. Arrangements were then made for a
meeting which was to be held on August 2 at the Cross
Island Inn at 7 p.m.
At approximately I a.m. on July 30, employee Gonnelly
indicated to Pulver that he needed to speak with him.
Gonnelly left the shop to perform installation at a
customer's place of business and Pulver falsely told
Supervisor Lage he was ill, parked his truck, and went in
search of Gonnelly. After finding Gonnelly and being
informed by him that he had overheard Lage talking to
someone concerning a union, Pulver went about his
undisclosed private business rather than return to work.
During the course of the afternoon Osterloh caused several
calls to be placed to Pulver's residence, but Pulver was not
there. Osterloh placed the last call himself and then
informed James Etri, who lived in the house with Luald
and Pulver, that Pulver was fired. When Etri informed
Pulver of Osterloh's message, Pulver went to the shop,
arriving at approximately 6 p.m. Shortly thereafter,
Osterloh and Wisel left the employee meeting then in
progress and Osterloh spoke with Pulver. Pulver testified
Don Wisel had his tools when the two approached him and
Osterloh told him he was fired. He asserts he asked why,
and Osterloh said, "You created a gigantic mess with the
Union. You are a good mechanic. I hate to lose you but
because of this, I have to let you go."
When the employee meeting ended, employees Gonnelly,
Joe Nolan, and Steve Steinman conversed with Pulver who
told them he had been fired for union activity. The
employees, who had written their benefit demands on a
piece of cardboard, indicated they would talk to Osterloh
about the discharge. At this point, Lage came out and
: GonnellV credibly testified he urged Pulver's reinstatement by telling
Osterloh the discharge was fishy as he was allegedly firing Pulver for
drinking while at the same time having discussions concerning the Union.
' Pulver stated in his affidavit given to the Regional Office that he
understood the warning concerning dnnking to he directed at employees
generally rather than at him specifically. When he went to Gonnelly s home
prior to the hearing and had Gonnell) read his affidavit. Gonnelly told him
the statement was not true. that Osterloh had conditioned his return to work
on his agreement to not drink on the joh Pulver asked Gonnelly to forget
the specific warning Although he was called as a rebuttal witness. Pulver
did not deny that he attempted to cause Gonnelly to shape his testimony at
the hearing.
suggested Pulver wait for the employees at a nearby bar.
Approximately an hour later, Lage and Gonnelly went to
the bar and told Pulver that Osterloh had agreed to
withdraw the dismissal.13 Pulver testified that Gonnelly
then said Osterloh conditioned his return upon his
reporting for work at 8 a.m. instead of 8:30 a.m. and that
Gonnelly informed him Osterloh had said that none of the
employees were to thereafter drink on the job. Gonnelly
testified he told Pulver that Osterloh would permit him to
return to work if he reported at 8 a.m. instead of 8:30 and if
he would stop drinking on the job. I credit Gonnelly.14
Pulver and other witnesses testified that, when Respon-
dent Glass agreed to give them new benefits during the
period July 30 to August 2, their interest in the Union
waned. Then, on August 9, an employee named Ronnie
Olla was fired and the record reveals the employees
thereafter signed union cards, thereby evidencing a
renewed interest in unionization.1 5 Pulver testified he
signed a card on August 23.
Pulver was terminated by Respondent Glass on August
25. His version of the termination is that he was asked to
return to the shop and, when he arrived at 11 a.m.,
Osterloh and Wisel took him to the back office where "they
told me because of all this, all my instigating with the
Union and stuff like that, they could no longer keep me,
and they fired me."
Osterloh testified that he had no knowledge of Pulver's
union activities when he fired him on July 30, and that the
reason for the termination was his drinking.t ' Apart from
Pulver's absence from the shop, allegedly because he was
sick, no evidence of recent vintage was offered by Osterloh
to support his alleged reason for the decision to discharge
Pulver on this occasion.
With regard to the August 25 discharge, Osterloh
testified that he was driving his wife's car on Route 110 at
approximately 10 a.m. and observed Pulver stopped at a
light drinking a can of beer. He testified he returned to the
shop, had Pulver summoned by radio, and informed him,
when he came to the shop around II a.m., that he had
rehired him on July 30 with the understanding that he
would not drink on the job and he would come to work at 8
a.m. each morning. He contends he then told Pulver he was
falling down on both these points and that he had seen him
drinking on Route 110, and he had to fire him. Osterloh
denied that he told Pulver on July 30 or August 25 that he
was firing him for union activities.
For the reasons set forth below, I credit Pulver's version
of the July 30 discharge conversation and Osterloh's
version of the August 25 discharge conversation.
is Respondent Glass advertised for glazier-installers dunng the periods
August 6-12 and August 25-30. Osterloh testified he was seeking employees
for a new shop. In the absence of evidence revealing that Respondents were
aware of continued employee interest in a union during these periods, I
refrain from inferring that the union situation prompted the advertising.
'6 As indicated in the section of this Decision entitled "The Alleged
8(aXl) Violations." this assertion was not true. I find that on July 30
Osterloh was aware of the fact that Pulver was an instigator of the union
activity.
1005
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Analysis
Osterloh's assertion that he fired Pulver for drinking on
July 30 is belied by the fact that he told Luald that day that
Pulver "is instigating a lot of union garbage and before I
put up with that I will close the place down-fire everyone.
I don't have to put up with that nonsense; he's fired and he
don't even know it yet." Similarly, the statements made by
Osterloh during his meeting with employees that day reveal
he was concerned with the employees' union activity rather
than with their drinking. Additionally, it should be noted
that the record does not reveal any instance in which
Pulver was known by Respondent Glass management to
have been drinking on the job prior to July 30. Consider-
ation of these factors leads me to conclude that Pulver's
version of the July 30 discharge conversation should be
credited. Consequently, I find Osterloh told Pulver on July
30 that he was fired because he had created a union mess.
It follows, and I find, that Respondent Glass by this action
violated Section 8(a)(l) and (3) of the Act as alleged by
discharging Pulver on July 30.
The situation on August 25 was entirely different.
Although Pulver denied that Osterloh conditioned his
return to work on July 30 upon his agreement to cease
drinking on the job, I have credited employee Gonnelly's
testimony that Pulver was specifically warned as claimed
by Respondent Glass. Prior to the hearing Pulver sought to
cause Gonnelly to support his affidavit assertion that all
employees had been warned about drinking on the job on
July 30. If Osterloh told him he was fired for union
activities on August 25 and did not mention drinking on
the job, Pulver's attempt to cause Gonnelly to shape his
testimony does not make sense. I also note the record fails
to reveal that Osterloh or any supervisor of either
Respondent had any knowledge during the period July 30
to August 25 that employee interest in the Union had been
rekindled. These factors, coupled with my observation of
the demeanor of Pulver and Osterloh when they testified
concerning the discharge conversation, convince me that
Osterloh saw Pulver drinking beer at a stop light on Route
110 on August 25 and that he called Pulver to the shop and
immediately fired him because he had been drinking on the
job. General Counsel anticipated Osterloh's assigned
reason for the Pulver discharge and sought to establish that
employee drinking on the job was commonplace and had
been condoned by Respondent prior to the time Pulver was
allegedly discharged for this reason. The difficulty with this
contention is the fact that such condonation, which I find
did exist prior to July 30, ended on that date. Particularly is
this true as to Pulver. In this regard, I note General
Counsel was unable to show that Osterloh learned during
the period July 30 - August 25 that any employee had
been drinking on the job. Considering all the circumstanc-
es, I find that Pulver was fired for cause rather than for his
union activities on August 25. Accordingly, I shall
recommend that the allegation that he was discharged in
violation of Section 8(a)(1) and (3) on August 25 be
dismissed.
'1 Prenderville testified he signed a union card on August 24 or 25, but
no evidence was adduced to show company knowledge of this activity.
3. The Prenderville discharge
Leonard Prenderville first worked for Respondent Glass
from August 1974 to August 1975. He left and was rehired
in mid-July 1975. It is undisputed that Prenderville was an
excellent glazier-installer.
Respondent Glass could hardly deny that it was aware of
Prenderville's prounion sentiments. Osterloh asked the
employees what they wanted at the meeting on August 2
and Prenderville replied "union benefits." 17
On August 14, Prenderville lost his driver's license.
Several days later he was taken off his truck and put to
work in the shop. During the period August 14 to August
25, he rode to and from work with Pulver. He testified that
while assigned to shopwork he spent approximately 60
percent of his time installing glass and the remaining 40
percent cleaning, painting, and cutting glass.
Prenderville testified Donald Wisel approached him at
approximately 3 p.m. on August 25 and asked him "if he
knew anything about union activities going on." He replied
no and Wisel said, "Well, if you hear anything let me
know, I appreciate it." Wisel did not testify at the hearing.
The record reveals Prenderville was sick on August 23
and 24 and missed work those days. He called in to say he
was sick on August 23, a Monday, but did not call in the
following day. The absences were considered excused and
he was paid for the 2 days.
Friday, August 27, was the last day Prenderville worked
for Respondent Glass. The circumstances surrounding his
leaving are in dispute. Prenderville testified that Supervisor
Lage told him that evening that Osterloh had his pay. He
claims he went to Osterloh who told him he and Wisel
wanted to talk to him before he went home. Prenderville
testified that 25 minutes later he went to the office where
Osterloh and Wisel were waiting. He asserts Osterloh then
told him he had to let him go and, when he asked why,
Osterloh replied "for union activities and for being sick."
During cross-examination, Prenderville admitted Osterloh
also told him during the above-described conversation that
since his license was suspended he could no longer function
as an auto glazier.
Osterloh testified that when Prenderville told him he had
lost his license he told him he would try to keep him in the
shop, if they could, but most of the work was on the road.
He indicated they tried it 8 or 9 days but it was not working
out. His version of the August 27 conversation is that he
told Prenderville he was doing a good job but without his
license there was not enough work in the shop to keep him
busy. Osterloh claims Prenderville responded that he had
considered leaving anyway as he did not have a way to get
to work since Dennis was no longer with the Company.
Osterloh testified he then told Prenderville he would keep
everything open and as soon as he got his license to let him
know and they would put him back to work. Finally,
Osterloh claims he told Prenderville his benefits would stay
the same until he came back and that this employee's Blue
Cross-Blue Shield coverage was kept in effect until
September 24.
1006
A & T GLASS COMPANY
On September 22, Respondent Glass sent Prenderville
the following letter:
September 22, 1976
Dear Leonard,
We have received a request for a reference from the
Levittown School District, regarding your application
for a job in maintenance. By making application for
this other position, we assume you do not intend to ever
return to work for A & T Glass. Under the circum-
stances, we must consider that you have quit our
employ.
You recall that you were temporarily laid off on
August 27, 1976, because you had your driver's license
suspended and you could no longer perform the
services required of you. At that time you were told by
myself that you were welcome back immediately upon
reobtaining your driver's license. Up until today you
had not informed us that your license was once again in
effect. I telephoned you early this morning. You were
not at home. I left a message for you to call me. As of
this moment you have not returned the call. I wish to
advise you that we must know if you have obtained
your license and if you can return to work immediately.
Unless we hear from you by 12 noon on Friday,
September 24, we shall amongst other things cancel the
medical coverage we have kept for you as an employee,
and otherwise permanently remove you from our list of
employees. In such event we will consider that you have
obtained employment elsewhere and that you have
elected not to return to A & T Glass.
Wishing you the best of luck.
The letter was sent by certified mail and the return receipt
reveals that Prenderville's mother received the letter on
September 23. Prenderville did not respond to the letter by
12 noon, September 24, the deadline set forth in the
letter. 18
Analysis
To find that Prenderville was discharged in violation of
Section 8(a)(3) of the Act as alleged, I would have to find
that he engaged in union activities, that Respondent Glass
was aware of his activities or sentiments, and that it
discharged him because of his union activities or senti-
ments. Prenderville testified he stated at the August 2
meeting, in response to Osterloh's inquiry, that the
employees wanted union benefits. On August 24 or 25, he
claims he signed a union card. It is clear that Osterloh was
aware of this employee's sentiments, but no evidence was
offered to show that Respondent Glass had knowledge of
the fact that Prenderville signed a union card or engaged in
other activities on behalf of the Union. Against this
backdrop, Prenderville informed Osterloh on August 16
that he had lost his driver's license. It is undisputed that
this disabled him from performing normally as a glazier-
t8 Prendersille received the letter early enough to respond but ignored it.
Counsel for Charging Parts subsequentl\ answered the letter on September
30. 1976. and asked Respondent Glass to clarifN its reinstatement offer. See
CP. Exh. 2. Respondent Glass did not respond to counsel's letter.
installer as he could no longer legally drive a truck.
Although Osterloh was then aware of his union sentiments,
Osterloh refrained on August 16 from discharging this
employee for a perfectly legitimate reason. Instead, his
employment ended 11 days later, on August 27. Prender-
ville claims Osterloh told him at the time of termination he
was fired for, inter alia, his union activities. Osterloh denied
the assertion and claims he did not fire the employee at all,
but merely told him he was going to have to lay him off
because he did not have enough business to keep him busy
in the shop. Further, Osterloh testified he told Prenderville,
that his benefits would remain the same and that he would
be put back on the road as soon as he got his license back.
Obviously, this conflicting testimony necessitates a credi-
bility resolution. I credit Osterloh because his testimony is
supported by independent objective facts, while Prender-
ville's bald assertion that union activities was an assigned
reason for discharge is not. Thus, Osterloh had valid reason
to discharge Prenderville on August 16 but, instead, he
decided to try him in the shop. During the I I days between
August 16 and 27, Respondent Glass was not shown to
have gained knowledge of the fact that Prenderville signed
a union card or engaged in any form of union activities.
The record did reveal, however, that Prenderville was off
work because of sickness on August 23 and 24; that he did
not call in on August 24; and that he spent approximately
40 percent of his working time sweeping the shop or
performing other work which did not produce immediate
income for Respondent Glass. Moreover, Osterloh's asser-
tion that Prenderville was merely laid off rather than fired
and that his Blue Cross-Blue Shield insurance was kept in
force until September 24 is supported to some extent by the
letter Osterloh sent to Prenderville on September 22 which,
inter alia, informed him he could return to Respondent
Glass if he had gotten his license back.' 9 Significantly.
Prenderville ignored the letter. Consideration of the factors
outlined above convinces me, and I find, that Prenderville
was laid off rather than fired on August 27. I do not credit
his testimony that he was told he was being let go because
of his union activities, and conclude and find that General
Counsel has failed to prove by a preponderance of the
evidence that he was terminated in violation of Section
8(a)(3) of the Act. Accordingly, I shall recommend
dismissal of this allegation of the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III.
above, occurring in connection with the operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
'" Resp. Exh. 1.
1007
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent Glass and Respondent Radiator consti-
tute a single employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondents violated Section 8(a)(1) of the Act by
interrogating employees concerning their union activities
and the union activities and sentiments of other employees,
by threatening employees with discharge and shop closing
because of their union activities, and by granting its
employees new benefits to induce them to abandon their
rights guaranteed by Section 7 of the Act.
4. Respondents violated Section 8(a)(1) and (3) of the
Act by discharging Thomas Luald and Dennis Pulver on
July 30, 1976, because of their union activities or senti-
ments.
5. General Counsel has failed to prove by a preponder-
ance of the evidence that Respondents discharged employ-
ees Dennis Pulver and Leonard Prenderville on August 25
and 27, 1976, respectively, in violation of Section 8(a)(1)
and (3) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
In order to remedy the unfair labor practices found
herein, my recommended Order will require the Respon-
dents to cease and desist therefrom and, in view of the
serious nature of the unfair labor practices which effective-
ly caused employees to cease their union activities, the
Order will require Respondents to cease and desist from
infringing upon the Section 7 rights of employees in any
other manner.
Respondents will be required to offer Thomas Luald
reinstatement to his former position of employment or, if
that position no longer exists, to a substantially equivalent
position, without prejudice to his seniority or other rights
and privileges, dismissing, if necessary, anyone who may
have been hired to perform the work which he had been
performing. Additionally, Respondents will be ordered to
make this employee whole for any loss of earnings he may
have suffered by reason of his unlawful termination with
backpay to be computed on a quarterly basis, making
deductions for interim earnings, and with interest to be
paid at the rate of 6 percent per annum. F. W. Woolworth
Company, 90 NLRB 289 (1950); Isis Plumbing & Heating
Co., 138 NLRB 716 (1962), enforcement denied on
different grounds 322 F.2d 913 (C.A. 9, 1963).
Upon the foregoing findings of fact and conclusions of
law and, upon the entire record and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
"2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions. and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived Ibr all purposes.
Respondent Glass and Respondent Radiator, Amity-
ville, New York, their officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Interrogating employees concerning their union
activities and sentiments and the union activities and
sentiments of other employees.
(b) Threatening employees with shop closing or dis-
charge to discourage them from engaging in union
activities.
(c) Granting employees new benefits to induce them
from becoming or remaining members of the Union or to
refrain from giving assistance or support to it.
(d) Discouraging membership in or activities on behalf of
Glass Warehouse Workers and Paint Handlers, Local
Union 206, International Brotherhood of Painters and
Allied Trades, AFL-CIO, or any other labor organization
of its employees, by discharging employees because of their
activities on behalf thereof or otherwise discriminating in
regard to the hire or tenure of employment or any terms or
conditions of employment of its employees.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection as guaranteed in Section 7 of the Act, or to
refrain from any or all such activities.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Thomas Luald immediate and full reinstate-
ment to his former position or, if such position no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights previously enjoyed,
and make him whole for any loss of pay due to the
violation against him, in accordance with the manner set
forth in "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Post at the Amityville, New York, location copies of
the attached notice marked "Appendix."21 Copies of said
notice, on forms provided by the Regional Director for
Region 29, after being duly signed by the Respondents'
authorized representatives, shall be posted by them
immediately upon receipt thereof, and be maintained by
them for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
21 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National 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."
ORDER 20
1008
A & T GLASS COMPANY
customarily posted. Reasonable steps shall be taken by
Respondents to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondents have taken to comply herewith.
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