Beaumont Glass Co.

National Labor Relations Board - Board Decisions

Mar 16, 1993

310 N.L.R.B. 710 (N.L.R.B. 1993)

710
310 NLRB No. 118
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In his decision, the judge inadvertently failed to provide the full
citation for Safeway Trails, 233 NLRB 1078 (1977).
2 The General Counsel has excepted only to the judge’s failure to
provide in his recommended Order that the Respondent be required
to mail copies of the notice to all of its employees, including all un-
fair labor practice strikers, at their last known address. The General
Counsel notes that because the facility was closed and has not re-
opened for business, little benefit would be derived from merely
posting the notice at the facility itself. We agree with the General
Counsel and shall modify the Order accordingly.
1 All dates herein are 1991 unless otherwise indicated.
Beaumont Glass Company and American Flint
Glass Workers Union. Cases 6–CA–23999 and
6–CA–24192
March 16, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On December 31, 1992, Administrative Law Judge
Donald R. Holley issued the attached decision. The
General Counsel filed a limited exception and a sup-
porting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exception and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions1 and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Beau-
mont Glass Company, Morgantown, West Virginia, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
Insert the following as paragraph 2(e) and reletter
the subsequent paragraph.
‘‘(e) Mail a copy of the attached notice marked ‘Ap-
pendix’ to all employees in its employ as of the time
of the unfair labor practices, including unfair labor
practice strikers, at their last known address. The no-
tice shall be duly signed by the Respondent on forms
provided by the Regional Director for Region 6.’’
Kim R. Siegert, Esq., for the General Counsel.
Donald G. Lucidi, Esq. (Humphreys, Nubani & Breault,
P.C.), of Pittsburgh, Pennsylvania, for the Respondent.
Paul W. Myers, Esq., of Moundsville, West Virginia, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, Administrative Law Judge. Upon an
original charge filed by the above-captioned Union in Case
6–CA–23999 on October 21, 1991,1 the Acting Regional Di-
rector for Region 6 of the National Labor Relations Board
issued a complaint on December 5 which alleged, in sub-
stance, that Beaumont Glass Company (Respondent) violated
Section 8(a)(1) and (5) of the National Labor Relations Act
by bypassing the Union and dealing directly with employees
when it published and distributed on October 17, 1991, a
memorandum which solicited bargaining unit employees to
abandon a strike. Respondent filed timely answer denying it
had engaged in the unfair labor practices alleged in the com-
plaint. Thereafter, the Union filed the original charge in Case
6–CA–24192 on January 8, 1992, and on February 24, 1992,
the Regional Director for Region 6 issued an order consoli-
dating Case 6–CA–241292 with Case 6–CA–23999 for trial
and a consolidated amended complaint which realleged the
matter contained in the December 5, 1991 complaint and al-
leged that on stated dates Respondent, acting through various
alleged supervisors, engaged in specified conduct which vio-
lated Section 8(a)(1) and (5) of the Act. Respondent filed
timely answer denying that it had violated the Act as alleged.
Thereafter, on April 7, 1992, the Regional Director amended
paragraphs 10 and 15 of the complaint. Respondent filed
timely answer denying it had engaged in the unfair labor
practices alleged in the complaint as amended.
The trial in the above case was held in Morgantown, West
Virginia, on June 25 and 26, 1992. All parties appeared and
were afforded full opportunity to participate. On the entire
record, including consideration of posthearing briefs filed by
the parties, and from my observation of the demeanor of the
witnesses who appeared to give testimony, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent, a West Virginia corporation, maintains an of-
fice and place of business in Morgantown, West Virginia,
where it is engaged in the manufacture and nonretail sale of
glassware and related products. During the 12-month period
preceding September 30, 1991, it purchased goods valued in
excess of $50,000 from points located outside the State of
West Virginia and, during the same period, it sold goods val-
ued in excess of $50,000 to customers located outside the
State of West Virginia. It is admitted, and I find, that Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. STATUS OF LABOR ORGANIZATION
It is admitted, and I find, that American Flint Glass Work-
ers Union, AFL–CIO is a labor organization within the
meaning of Section 2(5) of the Act.
711BEAUMONT GLASS CO.
2 Local 536 members of the committee were: Ted Mason (until he
became a supervisor in early 1990); John McGinnis; Isa Metheny;
Wilma Rohr (until May 1991); and Bill Mathew (after May 1991).
Local 95 members were: Larry Clemsie; Rick Snyder; and Mike
Sine (from March 1991 forward).
3 SME, Industries, Inc., is headquartered in Uniontown, Pennsyl-
vania, which is some 20 to 25 miles from Morgantown. Miller was
assigned to participate in the Beaumont negotiations in July 1991,
by one Frank Carlow, described by Miller as the owner of SME,
which, in turn, owns Respondent Beaumont.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent Beaumont operates a glass plant in Morgan-
town, West Virginia. Its principal products consist of hand-
blown components for lamps and limited gift items. At the
time of the hearing, it employed approximately 80 employ-
ees.
The Union has represented Respondent’s employees since
approximately 1905, the year in which the Company was
formed. The employees belong to one of two local unions;
skilled employees belong to Local Union 95 and unskilled
employees belong to Local Union 536.
The parties have been signatory to a succession of collec-
tive-bargaining agreements over the years. On July 10, 1988,
when the 1985–1988 agreement was in effect, the Union was
notified that Respondent had been purchased by the L. E.
Smith Glass Company. The new owner and the Union agreed
to extend the existing bargaining agreement to September 4,
1989.
Shortly before the above-mentioned agreement was to ex-
pire, the parties commenced negotiations for a new agree-
ment. Paul Myers, an International representative, and a bar-
gaining committee composed of members of both Locals 95
and 536 represented the Union in negotiations.2 Respondent
was represented by several individuals, the last of whom was
Michael Miller. Miller is employed by SME, Industries, Inc.,
Beaumont’s corporate parent.3
Negotiations continued from late 1989 through mid-Sep-
tember 1991, with oral extensions of the collective-bar-
gaining agreement in effect immediately prior to September
4, 1989. On September 21, 1991, the Union commenced a
strike at the facility. It is undisputed that the strike com-
menced as a result of the Union’s dissatisfaction with Re-
spondent’s position on economic issues including wages, in-
surance and pension contributions. A picket line was estab-
lished off Respondent’s property near a railroad track ap-
proximately 60 feet from the front door of the factory. The
legends on the picket signs which were used simply stated
that Locals 95 and 536 were ‘‘on strike’’ and several con-
tained the verbiage ‘‘Thanks for your Support’’ or ‘‘Honk
for Support.’’
International Representative Myers testified he stayed in a
room at the Holiday Inn in Morgantown throughout the ne-
gotiations and the strike. He was present at the picket line
for substantial periods of time each day. On Saturday after-
noons, he journeyed to his home in Moundsville, West Vir-
ginia, to visit with his family and collect clean clothes. He
returned to Morgantown each Sunday afternoon. Similarly,
Miller testified that he came to Morgantown each weekday
and attempted to arrive at the factory around 8:30 a.m. He
indicated he normally stayed about an hour, but stayed
longer if circumstances required his continued presence.
Negotiations continued after the strike began. Myers
credibly testified that while Miller or other Respondent offi-
cials might contact him at the Holiday Inn or leave messages
for him there, all contract proposals were delivered and/or
advanced at the actual bargaining sessions which were held
at the factory or at the Holiday Inn. Miller corroborated
Myers’ testimony.
B. The October 17, 1991 Memorandum
On October 17, 1991, Miller authored and caused Frank
Carlow’s secretary, Amy Godwin, to type the following
memorandum:
PROPOSAL PRESENTED TO THE MEMBERS OF
95 AND 536 OF THE AMERICAN FLINT GLASS
WORKERS UNION AFL–CIO
October 17, 1991
In an effort to avoid a plant shut down and the loss
of all jobs at Beaumont the Company proposes the fol-
lowing compromise to the members of locals 95 and
536.
The Company remains committed to its offer of Oc-
tober 7, 1991 to increase the Company contribution by
10 cents per hour towards Health Insurance coverage.
The Company also is committed to work with the em-
ployees to find a lower cost provider of Health insur-
ance coverage.
The Company has been advised through conversation
with several Union members that given the current situ-
ation that there are two views held by Members.
Group one—Finds the current situation economically
unacceptable and will not return to work. This group
would like to be eligible to receive unemployment com-
pensation benefits and pursue other job opportunities
with the Company.
Group two—Finds the current situation economically
difficult, but would prefer to return to work under the
most recent proposal to save their current job and give
the Company an opportunity to continue its business.
To break the current impasse the Company proposes
the following compromise for both groups.
Group one—The Company is willing, at the written
request of the employee, to file a permanent layoff
claim with the state to make the employee eligible for
maximum unemployment benefits.
Group two—The Company will accept all individ-
uals back in this group and restructure the work force
to utilize all individuals that elect to return to work. As
stated previously, the Company will pay the additional
10 cents towards health coverage and work with em-
ployees left to find a lower cost insurance carrier.
The Company views this proposal as a compromise
to give everyone what he or she wants at this point in
time.
Miller testified that he supplied the secretary with the names
and addresses of the members of Locals 95 and 536, as well
as with Myers’ business card and instructed her to mail cop-
712 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 See R. Exh. 1. While Myers’ business card contains a post office
box address, he testified the envelope containing his copy of the Oc-
tober 17 document was sent to 71 Oak Avenue. The envelope was
not produced. It is undisputed that Myers’ copy of the document was
waiting for him at his home when he arrived on Saturday, October
19.
5 Respondent claims in its brief (pp. 3–4) that the insurance offer
was made and rejected at a bargaining session held on October 7,
1991. While it appears the proposal and/or offer made to group 1
employees was not advanced before October 17, in the absence of
evidence which would reveal the content of Respondent’s October
7 proposal, I cannot determine whether the proposal made to group
2 employees had previously been made and rejected.
ies of the memorandum to everyone.4 Miller testified that
mailing of the documents was accomplished on Friday, Octo-
ber 18. Myers testified he first saw a copy of the document
when an employee showed him a copy on the picket line on
Saturday morning, October 19. When he was asked what
prompted the mailing of the October 17 memorandum, Miller
stated:
It was my opinion that we had reached somewhat of
an impasse in negotiations. The offer,—The previous
offer that we had made, which I believe was October
7, that was presented to Mr. Myers and the negotiating
committee was reviewed at that time, it was rejected as
I recall. I requested Mr. Myers at that time if he would
consider taking it to the membership and he indicated
that he would not do that. Between that time and the
17th, the drafting of this letter, in staff meetings with
my staff at Beaumont we had daily morning meetings
and the—I asked my staff there what their feelings
were, you know, with regards to getting this thing off
dead center and getting it moving ahead. The staff indi-
cated that there were in fact a number of Union work-
ers that in fact, you know, were interested in returning
to work and there of course was another group that
were rather adamant about not returning to work, so we
were dealing with that problem, two separate sets of in-
terest.
So in an attempt to address both interest groups I de-
vised this plan which I set forth in my letter of October
17 to try to satisfy both groups, and also in an effort
to get this to all the individual members of the Union
as well as the negotiating team and Mr. Myers so that
it had a fair review I made the determination to do a
direct mailing to all parties, and directed my secretary
to do that.
Myers testified that the proposals made by Respondent to
the group 1 and group 2 employees in the October 17 docu-
ment had never been made or discussed at bargaining ses-
sions prior to the time the document was mailed to him and
the employees.5 He further testified that he discussed the Oc-
tober 17 document and its contents with approximately 25
employees and they were upset and angry, and viewed the
proposal as an attempt to cause dissension among the em-
ployees and as an attempt to undermine his authority. He
told union members that acting in any manner on the Octo-
ber 17 proposal would only ‘‘cause dissention [sic]; that
those employees who requested permanent layoff would no
longer be counted as employees of Beaumont Glass and
would not be allowed to vote on the company proposal,
while those wishing to return to work would find that if not
enough persons returned to work, the Company would not
restart the plant; and that under such circumstances, the
Company would close the plant and the employees would
lose their Union. Myers also told the employees that the
Company was trying to undermine his authority through the
October 17 memorandum. Myers testified a number of union
members demanded that the Company’s proposal be put to
a vote, and that one member, in particular, was adamant
about the matter. No such vote was taken. Isa Matheny,
president of Local 536, commented on the October 17
memorandum at a subsequent meeting with management, but
the Union never formally responded to the October 17
memorandum.
C. Statements of Supervisors
During the course of the strike, Respondent’s supervisors
continued to report to the plant each day. As the Company
was performing no production work, the duties of the man-
agers and foremen consisted primarily of making security
rounds. On occasion, when making security rounds or enter-
ing or leaving the plant, management personnel conversed
with members of the Union on the picket line. General
Counsel adduced testimony through some 12 employee wit-
nesses which he claims, and the complaint alleges, con-
stituted violations of Section 8(a)(1) and (5) of the Act. The
testimony of such employees and that of Respondent’s super-
visors is summarized below.
1. Conversations involving Frank Bonvenuto
Frank Bonvenuto, who had retired before the hearing, was
the superintendent of Respondent’s hot metal division for the
2-year period preceding the strike. General Counsel sought
through testimony given by employees Ilene Milovich, Judy
Joseph, James Willie Smith, William Grazulis, and John
McGinnis to establish that Bonvenuto engaged in violative
behavior during the strike.
Milovich testified that in mid-October 1991, Bonvenuto
approached the picket line when she, Ida Buffalo, Kitty An-
derson, Shelly Raddish, and others were present. After mak-
ing some general comments, she claims he stated they should
be happy with what they were getting and happy that they
had a job and insurance and they should go back to work.
At some point, Bonvenuto told Milovich that she had no
right to be on the picket line, and that she had not worked
at Beaumont long enough to ask for more money. When
Bonvenuto thereafter stated the employees had better go back
to work or the plant would close, Milovich remarked that the
Company had been threatening to close the plant since the
strike began. According to Milovich, Bonvenuto then told
her that she had no right to strike and that she should go
back where she came from. Milovich testified she said she
would go back where she came from if she could, but she
was laid off from her previous job, and, in any event, she
had paid her union dues and had just as much right to strike
as anyone else. Milovich claimed the conversation ended
with Bonvenuto stating the Company had offered 10 cents an
hour more and asking the picketers what else they could
want. Milovich stated the response was that the employees
present laughed at Bonvenuto.
713BEAUMONT GLASS CO.
6 Bonvenuto did not seek to refute Joseph’s testimony.
Employee Joseph, Local 536’s corresponding secretary,
described a conversation Bonvenuto had with her and other
picketers in mid-October or early November 1991. She de-
scribed the conversation as follows:
[W]e were just talking, and then he [Bonvenuto] came
out about that if we hadn’t blown our chances sending
people down to talk to Mr. [Frank] Carlow that we
would be working today, and then he [Bonvenuto] went
on to say that we were just a number, he [Carlow]
would shut the plant down and it wouldn’t even bother
him [Carlow]. [Tr. 116].6
Employee Smith, the president of Local 95, testified that
during the third week of the strike Bonvenuto and Ted
Mason, Respondent’s hot shop foreman, approached him and
William Grazulis on the picket line with a letter. The sheet
contained a proposal offering the Union 40 cents an hour for
insurance and a 25-cent-per-hour raise. Smith claims
Bonvenuto asked what was wrong with them accepting the
65-cent offer, and what would it take to get us back to work.
He claims he said $1 an hour and paid insurance.
Employee Grazulis described a similar conversation, but
placed it as occurring in early to mid-November 1991.
Grazulis recalled the proposal was for Respondent to give 40
cents per hour in lieu of insurance and a 10-cent-per-hour
raise. Grazulis recalled Bonvenuto asked them what they
thought of the proposal and they replied, ‘‘Not too much.’’
He recalled that Bonvenuto then asked what it would take for
them to return to work and claims he replied ‘‘a dollar on
the hour and my insurance paid.’’
Employee John McGinnis, Local 536 vice president and a
member of the Union’s negotiating committee, testified that
at various times in October and November 1991, Bonvenuto
and other supervisors would approach the picketers and ad-
vise the employees to go back to work, stating there was
nothing to be gained by staying out.
When he appeared to testify, Bonvenuto did not seek to
refute Joseph’s testimony. On direct examination, he claimed
his conversation with Milovich was limited, with her claim-
ing the workers were entitled to more because they were
treated like dogs by the foremen, and with him responding
if she was not happy with the way foremen treated her, she
should look for employment elsewhere. He admitted he
spoke with Grazulis and Smith one night at the picket line,
but claimed that when Grazulis asked what was going on, he
merely replied he did not know; that it would be nice if the
employees would return to work. Bonvenuto recalled no con-
versations with McGinnis. During cross-examination, he ad-
mitted he told picketers that ‘‘[I]n my opinion . . . if things
didn’t turn around there was a good possibility it would
close’’; ‘‘[I]t was may opinion that I thought the plant would
close if they did not get back to work.’’
I credit fully the testimony of employees Milovich and Jo-
seph, which was not seriously disputed by Bonvenuto. I
similarly conclude that Smith and Grazulis recounted their
best recollections of their conversations with Bonvenuto, al-
though one or both of them were obviously incorrect when
describing the date of the insurance proposal discussion and
the amounts of money involved. Additionally, I credit the
limited testimony given by employee McGinnis. While I do
not doubt that Bonvenuto’s assertion that he was stating his
personal opinion when making the plant closure remarks, I
do not credit his claim that he told the employees when mak-
ing the remarks that he was stating his opinion.
2. Conversations involving Nicholi Callas
Nicholi (Nick) Callas has been employed by Respondent
for 21 years. He has been its production manager for the last
12 years. General Counsel sought, through the testimony of
employee witnesses Jacqueline Howenstein, Ilene Milovich,
Virginia Greathouse, Judy Joseph, and John McGinnis to es-
tablish that Callas engaged in conduct which violated the Act
during the strike.
Employee Howenstein testified that in early October 1991,
she and Irene Blosser walked up the railroad track and en-
countered Nick Callas and Frank Bonvenuto outside the
blowing room. She claims the following conversations oc-
curred:
[W]e said Hi, and Nick asked us when we were
going back to work, and I said we are not going back
to work until we get what we want, and Nick said if
we don’t go back to work we will be forced to close
the factory, and I said no, Frank Carlow will, and he
sad no, the union will force to close it. And then Frank
Bonvenuto got off of his—he started talking, he said he
had been quiet long enough, he said we ought to be
glad we have a job, and he said everybody’s insurance
is going up, and he said the guys in the blowing room
doesn’t want to work anyway, they find excuses. And
so, I said we will lose our purpose if we go back now,
so we started walking away from him.
Employee Greathouse testified that Nick Callas conversed
with pickets on several occasions around October 1991.
Asked what he said on those occasions, she responded:
He asked us was we going to vote, or when we was
going to vote, because Carlow would shut the factory
down, and if we didn’t want to work they would hire
replacement workers or he would shut the factory down
and turn the gas off.
Employee Milovich testified that Callas told her, Shelly
Raddish, Ida Buffalo, and Kitty Anderson on two occasions
during October or November 1991, while they were pick-
eting, that they should go back to work or else the plant
would close. She testified that in early December, Callas
stated from his car windows when leaving the plant ‘‘they
were going to close the plant down, he said they were turn-
ing the gas off, and he asked if we were going to go back
to work.’’ Milovich testified the gas was turned off about a
week after Callas made the described remarks.
Employee Joseph testified that shortly after the October 17
proposal was sent to employees, Nick Callas approached the
picket line and engaged her in conversation. She recalled
Callas asked what the employees wanted, and she replied
‘‘well, what did they ask for?’’ Callas said ‘‘25, 25, 25,’’
and Joseph agreed that was what they wanted. She testified
Callas then said ‘‘you will never get it.’’
Employee McGinnis and Callas were both at a bowling
alley in Morgantown on November 18, 1991. McGinnis testi-
714 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Myers testified he instructed Smith and Joseph to go to the plant
to seek a copy of the letter.
fied that Callas approached him and asked if he knew how
many people would be willing to return to work. The em-
ployee responded ‘‘2 or 3’’ and Callas stated he thought it
would be ‘‘more than that.’’
When he appeared as a witness, Callas admitted he con-
versed with members of the Union on the picket line five or
six times. He indicated the conversations varied, but con-
cerned, in main, questions and answers about what everyone
would think would happen. He testified that when he was
asked what he thought would happen that ‘‘I told them that
I thought that the ownership would close the plant if some
kind of agreement could not be made.’’ Callas testified he
recalled the incident during which he and Bonvenuto spoke
with Irene Blosser and another employee down the track by
the blowing room entrance, but he indicated he could not re-
call the specifics of that conversation which probably oc-
curred in early December 1991. Callas recalled that while he
and Blosser were at Suburban Lanes on one occasion, the
employee asked him what he thought was going to happen
with the plant and he told her he thought it would close if
the strike was not settled. While Callas indicated he did not
recall having any conversation with Virginia Greathouse, he
testified he may have made the comments attributed to him
by Greathouse ‘‘on one of those stops to the picket line just
to say hello if she would have been pulling her duty.’’ Callas
did not deny the plant closure comments attributed to him by
employee Milovich. When asked if he conversed with Mr
McGinnis, Callas indicated he thought it was basically the
same conversation he had with Blosser. He said, however,
‘‘[I]t has been so long that I don’t recall exactly what I said,
because I didn’t think I would ever have to recall these con-
versations.’’
In sum, Callas did not seriously seek to refute the testi-
mony given by General Counsel’s witnesses and I am con-
vinced they sought to state their best recollection of his re-
marks.
3. Conversations involving Ted Mason
Ted Mason has been employed by Respondent for 12
years. During the past 2 years, he has been Respondent’s hot
shop foreman. Before he became a foreman, he was a mem-
ber of Local 536. For about 1-1/2 years, he was the Union’s
corresponding secretary, and from 1982 to 1986, he served
as its president. General Counsel sought through testimony
given by employees Larry Clemsic, William Mathew, Wil-
liam Grazulis, and James (Willie) Smith to establish that
Mason engaged in conduct which violated the Act during the
strike.
Employee Clemsic is the secretary of Local 95 and he was
a member of the Union’s negotiating committee. He indi-
cated that during September and October 1991, he, Rick
Snyder, Tom Lenhart, Janet Smith, and Bill Lipscomb pick-
eted on the 11 p.m. to 7 a.m. shift and that Mason visited
with them at the picket line on three to five occasions. He
testified Ted would walk across the tracks and asked how
they were doing, and they, in turn, would ask him how
things looked. He claimed that ‘‘a couple of times he said
that Carlow said if we didn’t go back to work that he would
shut the plant down.
William Mathew is the treasurer of Local 536 and he is
a member of the Union’s negotiating committee. He testified
that during the week before Thanksgiving 1991, Mason came
out to the picket line during the midnight shift and asked him
to accompany him to Hardee’s Restaurant. He accepted the
invitation and claims that going there, and while there, ‘‘Ted
asked me . . . if there was anything that he knew that could
get us back to work, because he said he had a meeting with
Frank Carlow the following week.’’ Mathew recalled he told
Mason ‘‘that we had our last offer and that there was nothing
more that could be said.’’
Mathew said that, at least twice a week during the period
of picketing, Mason would come to the picket line and talk
with them about figures and insurance telling them ‘‘I don’t
understand why you don’t take the man’s last offer and go
back.’’
According to Mathew, 2 days before Thanksgiving 1991,
Ken Culp, Bob Dunhizer, and Mason approached the picket
line with a piece of paper containing what appeared to be a
telephone message. Mathew read the paper and passed it to
other employees. He claims it contained an order to shut off
the gas to the furnace, and that Mason stated to them they
had better not let things go further and if they did ‘‘it would
be all over with.’’ Mathew claims a similar situation oc-
curred in early December when Mason handed him a letter
addressed to Pat Lavery instructing Ted Mason to start the
furnace shutdown. Mathew recalled the letter had Frank
Carlow’s rubber-stamped signature on it.
Employee Grazulis testified that in early December, Ted
Mason came over to him and Willie Smith and told them he
had orders to turn the gas off at 10 o’clock that morning.
Late that afternoon, he claims Mason came back and told
them:
[Y]ou guys can kick my ass if you want to, but I have
to ask you this again—do you want to take a vote to
go back to work. I can give you a couple more hours
before I turn off the gas.
Employee James Smith was appointed president of Local
95 in July 1991. He testified that in early December, Ted
Mason came up to him and said that he had better get the
members together and get a vote to go back to work because
he had orders to shut the furnace down. He asked if the fur-
nace was going to be shut down permanently and Mason said
yes. Smith indicated he discussed the matter with members
of the negotiating committee and that he and Judy Joseph,
a member of the committee, later went into the plant where
Mason showed them a letter which was not signed.7 He testi-
fied Mason again told them they had better get a vote to go
back to work or he was going to shut the furnace clear off.
Smith claims the furnace was not shut off on the day Mason
discussed the matter with him.
When he appeared as a witness, Mason admitted he con-
versed with employees on the picket line during the strike.
He indicated that frequently such conversations were about
the weather and sports, but that sometimes the members
would ask him what was going on on the company side.
Mason indicated during his testimony that in conversations
with Mathew, Grazulis, and Smith, he told them that if there
was any way of not losing his job title, he would as a friend
talk to Norm Pennington and Mike Miller to see if they
could get negotiations going. Asked if he conversed with
715BEAUMONT GLASS CO.
Mathew in late October or early November, he testified
Mathew asked him ‘‘what the hell’’ was going on and he
told him the bills were piling up, they were losing customers,
and they were going to have to hire replacement workers.
With respect to turning off the gas, he testified Smith con-
fronted him in late November or early December and stated
he had heard a rumor that the gas was going to be shut off.
Mason said he confirmed that the gas would be shut off
within a matter of hours. Mason denied he told union mem-
bers he would talk with Frank Carlow, and he denied he told
employees, during conversations involving the furnace, that
this is your last chance, you better have a vote now.
Mason’s testimony was so lacking in specificity and was
so unconvincing that I credit General Counsel’s witnesses
where there is a conflict in testimony.
4. Conversations involving Kenneth Culp
Kenneth Culp has been employed by Respondent as a
maintenance supervisor since July 24, 1991. General Counsel
sought through the testimony of employees Virginia
Greathouse, Reaver Marshall, and Judy Joseph to establish
that Culp engaged in conduct which violated the Act during
the strike.
Greathouse testified that as Culp was leaving the plant in
his van sometime in October 1991, he ‘‘just asked us—start-
ed out how we were doing, and what was going on and
when we was going to vote.’’ She claimed they told him
they had nothing to vote on and he remarked, ‘‘Who was
Paul Myers that we were listening to him.’’
Employee Marshall testified that on a date she estimated
to be 1-1/2 months after the strike began, Culp stopped his
van at the picket line and engaged Mike Sine, a member of
the Union’s bargaining committee, in conversation. Marshall
said as the conversation progressed, she and others started to
listen and Culp stated, ‘‘[W]e had better take the Company’s
offer, or, you know, we weren’t going to have any jobs
there, they are just going to shut it down, and he said that
if we didn’t go back they would just hire replacement work-
ers for us . . . that they could get anybody to do our jobs.’’
Marshall indicated that when Culp said ‘‘he could shut the
factory down and open it nonunion and there was nothing we
could do about it,’’ she walked away.
Joseph testified she heard Culp make comments at the
picket line on several occasions in mid-October or early No-
vember 1991. On one occasion, she claimed she heard him
say ‘‘Mr Carlow didn’t care . . . the plant would shut down,
we were just a number, we meant nothing to Carlow, and he
would shut the plant down.’’
When he appeared to testify, Culp stated he had no recol-
lection of any discussion with employees concerning replace-
ments, closing of the plant and opening as a nonunion facil-
ity, or any comment to the effect that Frank Carlow did not
care for employees; they were just a number to him. Culp
was not an impressive witness. I credit employees
Greathouse, Marshall, and Joseph, without reservation.
5. Conversations involving Lorna Shuttleworth
Lorna Shuttleworth is Respondent’s finishing and deco-
rating foreman. General Counsel sought to prove she en-
gaged in conduct which violated the Act during the strike
through the testimony of employees Isa Matheny and Patrice
Raddish.
Employee Matheny testified that on a Saturday evening in
mid-October 1991, Shuttleworth stopped her car at the picket
line while she, Ida Buffalo, Ilene Milovich, Kitty Anderson,
and Shelly Raddish were picketing. Matheny indicated the
named individuals were coworkers in the finishing and deco-
rating departments, and someone asked Shuttleworth if any
orders had been lost. She claims Shuttleworth replied ‘‘Yes,
we have lost Schwartz and Stiffel.’’ Employee Raddish cor-
roborated Matheny’s testimony, adding that Ida Buffalo was
the employee who asked Shuttleworth if any orders had been
lost.
Shuttleworth recalled stopping at the picket line on an oc-
casion when losing customers was discussed, but her version
of the incident is that the picketers told her that a couple of
valuable customers, namely, Schwartz and Stiffel, had been
lost. She claims she told them she did not know that; that
‘‘we heard more from them than from the Company because
we worked the midnight shift.’’ On cross-examination,
Shuttleworth admitted she stated in a pretrial affidavit the
following:
On one occasion Isa Matheny, President of Local 536
of the union asked me whether the Company had lost
two customers, specifically the Schwartz and Stiffel ac-
counts. I told her this was probably true, though I was
not sure myself.
Shuttleworth denied she told employees that the plant would
close.
Noting that Shuttleworth’s recollection, at the time she
gave the Board an affidavit, was similar to that of employees
Matheny and Raddish, I credit the employees’ version of the
above-described incident.
D. Fall and Winter Events
In early November 1991, Respondent decided to hire some
replacement workers. Advertisements were placed, and on
November 12, some 15 replacement workers began work.
The replacement workers did not engage in any production
work during their tenure, and all were terminated prior to
Christmas 1991.
Norman Pennington, Respondent’s assistant general man-
ager, indicated during his testimony that Respondent fell be-
hind in its scheduled natural gas payments as the strike pro-
gressed. By December 6, 1991, it was some $95,328.53 in
arrears, and on that date Hope Gas, Inc. gave its formal no-
tice that the gas service would be terminated on December
16, 1991. Pennington testified that on December 2, 1991,
Miller gave the order to shut down the furnace. The order
was given to Pennington and Thomas Lavery, Respondent’s
coordinator, who relayed it to Mason. Mason asked Lavery
to give him a letter from Carlow authorizing the shutoff of
the furnace. Lavery obtained such a letter, singed it, and
gave it to Mason.
Pennington testified that after Miller ordered the shutdown
of the furnace, the task was to be accomplished gradually to
minimize damage to the pots which would result. He claims
he went to the picket line and told either Isa Matheny or
Paul Myers that the shutdown was to start on December 4,
1991. Apparently, Pennington discussed the matter with
716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Although General Counsel contends that supervisor Shuttleworth
engaged in similar conduct by falsely telling employee Matheny that
Respondent had lost two named accounts, I find the contention to
be without merit. Shuttleworth’s comments were noncoercive.
Matheny as Myers testified Bill Mathew called him around
November 30, 1991, to tell him that Ted Mason had showed
him a letter saying they were going to shut off the furnace.
In any event, Myers sent Judy Joseph and Jim Smith to the
plant on December 2, 1991, with instructions to obtain any
written order which directed plant personnel to turn off the
gas. After Joseph and Smith returned indicating they had not
been given any such written order, Myers personally went to
the plant on December 3, 1991, and discussed the situation
with Pennington, Lavery, and Mason. While he was not
given any writing, he was permitted to read a written order
directing the shutdown of the furnace. On December 16,
1991, Hope Gas, Inc. terminated the facility’s gas service.
The furnace had been completely shut down prior to that
time.
As noted, supra, the Union filed the original charge in
Case 6–CA–23999 on October 21, 1991. That charge alleged
that Respondent violated Section 8(a)(5) and (1) of the Act
by distributing the October 17, 1991 memorandum. The Re-
gion issued a complaint on December 5, 1991, and, at or
about that time, the language on the picket signs was
changed to read: ‘‘Unfair Labor practice charges filed against
Beaumont Glass Company, Locals 945 and 536.’’ In addi-
tion, the words ‘‘backstabbers’’ and ‘‘scabs’’ were written on
the signs. Employee Reaver Marshall testified that she wrote
the word ‘‘backstabber’’ on the signs because their foremen
had been making threats while they picketed, and she wrote
the word ‘‘scabs’’ on the signs to protest Respondent’s use
of replacement employees. She testified the reference to un-
fair labor practice charges was put on the signs because Re-
spondent attempted to split them into two groups by distrib-
uting the October 17 memorandum and because of the ac-
tions of their foremen. Employee Greathouse gave similar
testimony regarding the reason for changing the language on
the picket signs.
On March 4, 1991, the Union made an unconditional offer
to return to work on behalf of its striking members. By letter
dated March 10, 1992, Respondent requested it be given 30
days to respond to the Union’s offer in order to permit it ‘‘to
assess the damage done by the strike and the feasibility of
restarting operations.’’ The Union agreed to Respondent’s re-
quest by letter dated March 13, 1991. As of the close of the
hearing herein, the employees represented by the Union had
not returned to work, no replacement employees were work-
ing at the plant, and the facility had not been reopened for
business.
E. Issues
The issues posed by the pleadings are:
1. Whether Respondent violated Section 8(a)(1) of the Act
by threatening its employees with plant closure if they con-
tinued to strike and engage in union activities.
2. Whether Respondent, by direct statements by its super-
visors and issuance of the October 17, 1991 proposal, vio-
lated Section 8(a)(1) and (5) of the Act by bypassing the
Union and engaging in unlawful solicitation of its employees.
3. Whether the strike which commenced on September 21,
1991, was converted into an unfair labor practice strike.
In his brief (p. 35), General Counsel adds a fifth issue by
asserting that I should find that Respondent violated Section
8(a)(1) when Bonvenuto stated to employee Milovich that
she had no right to strike and she should go back where she
came from.
IV. DISCUSSION AND CONCLUSIONS
A. The Plant Closure Threats
Paragraph 10 of the complaint alleges that in mid-October
1991, Lorna Shuttleworth threatened employees with plant
closure if they continued to strike and engage in union activ-
ity, and it alleges that Respondent supervisors Frank
Bonvenuto, Nick Callas, Ted Mason, and Ken Culp repeat-
edly threatened employees with plant closure if they contin-
ued to strike and engage in union activity during the months
of September, October, November, and December 1991.
As revealed, supra, the testimony, which Respondent does
not seriously dispute, and which I find to be credible, reveals
that Respondent supervisors repeatedly sought to cause em-
ployees to cease picketing and return to work during the
months of September, October, November, and December
1991, by telling them the plant would be closed and/or the
gas to the furnace would be shut off if they did not return
to work.8 Specifically, I find that Bonvenuto told employee
Milovich in mid-October 1991 that ‘‘employees had better
go back to work or the plant would close,’’ and that
Bonvenuto told employee Joseph in early November 1991,
that ‘‘we were just a number, he [Carlow] would shut the
plant down.’’ Similarly, I find that Callas told employee
Greathouse in October 1991 that Carlow would shut the fac-
tory down and turn the gas off; and that he told employee
Milovich in October and November 1991, that they should
go back to work or the plant would close. Similarly, Mason
told employee Clemsic in September and October 1991 that
Carlow said if we did not go back to work he would shut
the plant down; he told employee Mathew in late November
he had orders to shut the gas off to the furnace and if they
let things go further ‘‘it will be all over with’’; and that he
told employee Grazulis in early December ‘‘if you want to
vote to go back to work, I can give you a couple more hours
before I turn off the gas.’’ Finally, credited record evidence
reveals that Supervisor Culp told employee Marshall in late
October 1991, that ‘‘he [Carlow] could shut the factory down
and open it nonunion and there was nothing we could do
about it’’; and he told employee Joseph in mid-October or
early November 1991, ‘‘we meant nothing to Carlow and he
would shut the plant down.’’
While Respondent does not seriously attack the credibility
of General Counsel witnesses who attribute the above-de-
scribed remarks to various of its managers and supervisors,
it contends I should not find the violation(s) alleged because
the comments were statements of opinion and the record fails
to reveal that low-level supervisors were privy to information
concerning strategic business planning decisions. In support
of its argument, it cites American Stores Packing Co., 277
NLRB 1656 (1986).
In American Stores Packing Co., 5 lower level supervisors
told 10 employees (6 of whom were union officials) in 7
separate conversations that, if the employees did not accept
717BEAUMONT GLASS CO.
the concessions the Respondent had proposed to the Union,
the plant would close or would probably close. The judge
concluded the statements were not unlawful threats to close
the plant because the Respondent was merely communicating
in noncoercive terms with employees about the proposals it
had already made to the Union and telling employees its
version of the status of those negotiations. The Board agreed
that in the circumstances described, the statements were not
coercive, stating it could not find that the statements under-
cut the Union’s status as bargaining agent as all the state-
ments were directed to union officials. The Board specifi-
cally indicated in American Stores Packing Co. that it did
not rely on the judge’s finding that the lower level supervisor
who made the statements were merely expressing their own
opinions rather than speaking for Respondent.
Patently, the instant situation differs materially from the
situation which existed in the above-cited case. Here, the im-
port of the statements made by Respondent’s managers and
supervisors was that the plant would be closed and/or the gas
to the furnace would be turned off if the employees contin-
ued to refuse to return to work. Thus, the remarks were not
simply a prediction of possible objective consequences of the
Union’s failure to accept what Respondent had offered in ne-
gotiations. Moreover, as the record reveals that Respondent’s
chief negotiator, Miller, visited the facility each weekday
morning and met with his staff, the statements made by the
managers and supervisors who held the top management po-
sitions at the plant could logically be viewed by employees
who observed Miller come and go as ‘‘inside information’’
possessed by the managers and supervisors. Significantly,
here, unlike the situation in American Stores, the employees
threatened, including Milovich, Grazulis, Greathouse, and
Marshall, held no union office or position on the bargaining
committee. In sum, I find that the conduct of Respondent’s
supervisors described above was coercive and that by engag-
ing in such conduct Respondent violated Section 8(a)(1) of
the Act as alleged.
B. The Bonvenuto/Milovich Conversation
Employee Milovich credibly described a conversation she
had with Supervisor Frank Bonvenuto, at the picket line, in
the presence of employees Ida Buffalo, Kitty Anderson, and
Shelly Raddish, as follows (Tr. 65 & 66):
Well, he came over, we just talked in general at first,
then he told us that we should go back to work. He was
telling us that we should be satisfied with what we
were getting, he said we should be happy that we have
a job and insurance, and Shelly Raddish said to him,
with her pay, once the insurance was deducted it was
hard to make ends meet. She was telling him that she
really felt sorry for the men in the blowing room that
did not get 40 hours a week and they made even less,
and he told her that the men in the blowing room didn’t
want to work. He said that he was going to have a
poster made, and he said he was going to save the
newspaper articles about the men not getting 40 hours
a week and he was going to put them up in the blowing
room. He said that he would put it right up into their
faces if they ever asked him to leave early.
And then he says to me, he said I didn’t have any
right to be on the picket line, he said I didn’t work
there long enough to ask for more money, and then he
said we better go back to work or else the plant would
close. And I told him, I said well they have been threat-
ening to close the plant since the strike began and he
became very angry.
Then he told me, he says, I didn’t have any right to
strike, he said I should go back to where I came from,
and I told him I would if I could, but I was laid off
from my previous job, and I told him I said, I pay my
Union dues and I have just as much right to be there
as anyone else, and then he was very angry at that time
too.
And then Shelly Raddish asked him why was he still
working, and he says he really didn’t have to work and
he said that we better go back to work or else the plant
would close, and he said you ought to be happy with
what you make. He said that they offered you 10 cents
an hour more, what else could you want and we just
laughed at him, and Shelly—
Counsel for the General Counsel contends for the first
time in his brief that by telling employee Milovich she ‘‘had
no right to strike’’ and that she ‘‘should go back where she
came from,’’ Bonvenuto engaged in conduct which violates
Section 8(a)(1) of the Act.
The specific remarks complained of above contain no
threat of reprisal or force or promise of benefit. They con-
stitute the type of remarks that one might expect to hear
pickets and nonpicketing individuals make in a strike situa-
tion. I find that Bonvenuto’s above-described comments to
employee Milovich do not rise to the level of violation of
Section 8(a)(1) of the Act.
C. The Alleged Unlawful Interrogation
I have found, supra, that on November 18, 1991, at a
bowling alley, Supervisor Callas asked employee McGinnis
how many employees would be willing to return to work.
When McGinnis replied two or three, Callas simply indicated
he though there would be more and ended the conversation.
I have similarly found that supervisor Mason discussed insur-
ance figures with employee Mathew and others at the picket
line and stated to Mathew and others, ‘‘I don’t understand
why you don’t take the man’s last offer and go back [to
work].’’ General Counsel contends that supervisors Callas
and Mason unlawfully interrogated employees in violation of
Section 8(a)(1) of the Act by engaging in the described con-
duct.
In Rossmore House, 269 NLRB 1176, 1177 (1984), the
Board quoting Midwest Stock Exchange v. NLRB, 635 F.2d
1255, 1267 (7th Cir. 1980), stated:
It is well established that interrogation of employees
is not illegal per se. Section 8(a)(1) of the Act prohibits
employers only from activity which in some manner
tends to restrain, coerce or interfere with employee
rights. To fall within the ambit of § 8(a)(1), either the
words themselves or the context in which they are used
must suggest and element of coercion or interference.
With respect to the above-described Callas-McGinnis inci-
dent, I note that Callas did not inquire about employee
McGinnis’ feelings on the subject of returning to work, nor
did he attempt to ascertain the identity of the two or three
718 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees whom McGinnis told him might want to return to
work. The words used by Callas do not suggest an element
of coercion and I find the context in which the limited inter-
rogation occurred was likewise noncoercive. I find the inter-
rogation did not rise to the level of a violation of the Act.
With respect to the Mason-Mathew situation, the record
simply reveals that Mason discussed an offer Respondent had
made to the Union at formal negotiations with Mathew and
others, and expressed his feeling that he thought they should
have accepted the offer and returned to work. In my view,
such conduct is permissible under the rationale expressed in
Proctor & Gamble Mfg. Co., 160 NLRB 334, 340 (1966).
Accordingly, I find the conduct was permissible by virtue of
Section 8(c) of the Act. See American Stores Packing Co.,
supra.
D. Alleged Direct Dealing by Supervisors
Paragraphs 15(a) and (b) of the complaint, as amended, al-
lege that named Respondent supervisors bypassed the Union
and dealt directly with employees during the period mid-Oc-
tober through mid-November 1991. While the complaint al-
leges that the violative conduct consisted of ‘‘soliciting em-
ployees to vote on Respondent’s constant proposals, and/or
to return to work’’; and ‘‘soliciting employees as to what it
would take to obtain a collective-bargaining agreement,’’ the
portions of the record relied upon to prove the alleged viola-
tions were not set forth in General Counsel’s brief. Incidents
which appear to me to generally involve solicitation of em-
ployees are set forth below and analyzed.
1. As found, supra, in mid-October 1991, Bonvenuto told
employee Milovich the Company had offered 10 cents per
hour more and he stated, ‘‘what else could you want.’’
Milovich and her fellow employees laughed at Bonvenuto.
I do not view the above-described incident as one wherein
Bonvenuto was seriously asking Milovich what she and her
fellow employees were seeking in negotiations. By engaging
in the conduct described, I find Bonvenuto did not act un-
lawfully.
2. As found, supra, at some point between mid-October
and mid-November 1991, Bonvenuto, accompanied by Ted
Mason, displayed a paper containing Respondent’s
insurance/raise proposal to employees Smith and Grazulis.
He asked what they thought of the offer and they replied,
‘‘not too much.’’ He then asked what it would take for them
to return to work, and they replied $1 per hour and paid in-
surance.
The record reveals that Smith is the president of Local 95,
but neither he nor Grazulis is a member of the Union’s nego-
tiating committee.
By seeking to ascertain what contractual insurance benefits
and what monetary raise employees Smith and Grazulis de-
sired, I find that Respondent, through Bonvenuto’s conduct,
engaged in direct dealings with employees and thereby vio-
lated Section 8(a)(5) and (1) of the Act.
3. As found, supra, during the week preceding Thanks-
giving 1991, Supervisor Mason asked employee Mathew, an
officer of Local 536 and a member of the Union’s negoti-
ating committee, ‘‘if there was anything that he knew that
could get us back to work, because he said he had a meeting
with Frank Carlow the following week.’’
I find that by engaging in the described conversation with
employee Mathew, Respondent, through Mason’s conduct,
engaged in direct dealing with an employee in violation of
Section 8(a)(5) and (1) of the Act.
4. As found, supra, in early December 1991, Supervisor
Mason told employee Smith, the president of Local 95, that
he had better get the members together and get a vote to go
back to work because he had orders to shut the furnace
down.
Noting that Mason’s action caused Union Representative
Myers to send Smith and employee Joseph to the plant to
verify Mason’s report, and that Myers himself went to the
plant the following day to verify Respondent’s plans, I find
that Mason did not, by giving Smith the described message,
engage in unlawful direct dealings with a unit employee.
5. As found, supra, in October 1991, as supervisor Culp
was leaving the plant, he asked picketers, including em-
ployee Greathouse, ‘‘what was going on and when we was
going to vote.’’ When Greathouse told him they had nothing
to vote on, he remarked, ‘‘who was Paul Myers that we were
listening to him.’’
By seeking to persuade employees that they should ignore
their union representative and vote on Respondent’s pro-
posals, I find that Respondent, through Culp’s action, sought
to bypass the union and engage in individual dealings with
employees in violation of Section 8(a)(5) and (1) of the Act.
6. As found, supra, shortly after the October 17 proposal
was sent to employees, supervisor Callas asked employee Jo-
seph, a member of the Union’s negotiating committee, what
the employee wanted. She replied, ‘‘well what did they ask
for?’’ and Callas said, ‘‘25, 25, 25.’’ When Joseph agreed,
Callas said ‘‘you will never get it.’’
The described conversation is merely a noncoercive dis-
cussion of the parties’ positions in negotiations. I find that
by engaging in the described exchange, Callas did nothing
unlawful.
While the complaint alleges that Respondent official Pat
Lavery dealt directly with employees, the record contains no
evidence which would support the allegation.
E. Distribution of the October 17 Memorandum
Paragraph 15(c) of the complaint alleges that Respondent
bypassed the Union and dealt directly with employees by
publishing and distributing the October 17, 1991 memo-
randum.
Respondent correctly observes that Section 8(c) of the Act
accords an employer the right to communicate with its em-
ployees concerning its position in the course of negotiations.
Thus, in Proctor & Gamble Mfg. Co., 160 NLRB at 340, the
Board held that Section 8(a)(5) of the Act does not, per se,
preclude an employer from informing its employees in ‘‘non-
coercive terms . . . of the status of negotiations, or of pro-
posals made to the Union.’’ This does not mean, however,
that direct communication with employees is beyond the pro-
scriptive ambit of the Act when utilized in furtherance of ob-
jectives inimical to the principles of good-faith collective
bargaining.
In the instant situation, Respondent advanced a proposal
via the October 17 document which had not previously been
made at the bargaining table. Indeed, it makes no claim that
it offered during bargaining not to contest unemployment in-
surance claims of employees who elected to resign their em-
ployment and seek work elsewhere. Moreover, noting that
Myers testified without contradiction that Respondent offi-
719BEAUMONT GLASS CO.
9 If no exceptions are filed as provided by Sec. l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
cials were fully aware of the fact that he was consistently in
Morgantown rather than at home in Moundsville, West Vir-
ginia, during weekdays, an inference that Respondent in-
tended that employees receive their copies of the October 17
document before Myers received the copy mailed to his resi-
dence is fully warranted. Then, too, inspection of the content
of the October 17 document clearly reveals that Respondent
intended to pit one segment of the bargaining unit—group
1—against a second segment—group 2. Viewed collectively,
the above observations cause me to find that Respondent, by
dealing directly with employees and seeking to pit one part
of the bargaining unit against another part, sought to under-
mine the Union’s representative status. Accordingly, I find,
as alleged, that by distributing its October 17, 1991 proposal
outside the formal negotiation framework previously utilized
by the parties, Respondent engaged in direct dealing with its
employees in violation of Section 8(a)(5) and (1) of the Act.
Facet Enterprises, 290 NLRB 152 (1988).
F. Conversion of the Strike
As indicated, supra, the Union filed the charge in Case 6–
CA–23999 on October 21, 1991, some 4 days after Respond-
ent mailed its October 17 memorandum to employees.
Myers, the Union’s spokesman in negotiations credibly testi-
fied that some 25 employees discussed the memorandum
with him at the picket line, and he indicated employees com-
plained because he informed them the proposal would not be
put to a vote. Myers testified the publication and distribution
of the memorandum destroyed the negotiations, and the
record fails to reveal that any meaningful negotiation ses-
sions were held by the parties subsequent to October 17,
1991. As found, supra, when the Board’s Regional Office
issued a complaint on December 5, 1991, after completing
the investigation of the charge filed in Case 6–CA–23999,
the Union changed the language on its picket signs to signify
it was protesting the unfair labor practices committed by Re-
spondent.
In sum, based on the entire record, I find that Respond-
ent’s unlawful attempt to bypass the Union and deal directly
with its employees, in part, caused the employees to resolve
to stay out on strike and such conduct actually prolonged the
strike. Accordingly, I find that the strike, which started as an
economic strike was converted to an unfair labor practice
strike on or about October 18, 1991. As noted by the Board
in numerous cases, ‘‘appealing directly to employees in an
attempt to undercut the union representative . . . is such as
could not help but prevent and inhibit good-faith bargaining,
thereby prolonging the strike.’’ Safeway Trails, 233 NLRB
1078, 1082 (1977). See also Blu-Fountain Manor, 270
NLRB 199, 206 (1984), and Facet Enterprises, supra at 155.
CONCLUSIONS OF LAW
1. The Respondent, Beaumont Glass Company, is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. American Flint Glass Workers Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. All hourly paid production and maintenance employees
employed by Respondent Employer at its Morgantown, West
Virginia facility, excluding factory and office clericals, tech-
nical employees, office janitors and guards, professional em-
ployees and supervisors as defined in the Act, constitute a
unit appropriate for collective bargaining within the meaning
of the Act.
4. At all times material, American Flint Glass Workers
Union has been the exclusive collective-bargaining represent-
ative for all Respondent’s employees employed in the above-
described unit within the meaning of Section 9(a) of the Act.
5. By repeatedly threatening employees with plant closure
if they continued to picket and engage in protected concerted
activity, Respondent violated Section 8(a)(1) of the Act.
6. By seeking, since October 17, 1991, to undermine the
Union by bypassing it and dealing directly with employees,
Respondent has refused and continues to refuse to bargain
collectively with the Union in good faith as the exclusive
collective-bargaining representative of its employees in the
unit described in paragraph 3, and it has thereby violated
Section 8(a)(5) and (1) of the Act.
7. By the conduct set forth in paragraph 6 above, the Re-
spondent has prolonged the strike of its employees.
8. The unfair labor practices recited above have a close,
intimate, and substantial effect on the free flow of commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
Having found that the strike which commenced on Sep-
tember 21, 1991, was converted to an unfair labor practice
strike and was prolonged by the unfair labor practices of Re-
spondent, I will recommend that, when the plant is reopened,
Respondent will offer the employees who went on strike im-
mediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, discharging, if necessary, any re-
placements in order to provide work for such strikers. Should
the Respondent fail or refuse such reinstatement, any striker
who has made a full and unconditional offer to return to
work will be entitled to backpay, computed as set forth in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
therein computed in the manner prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondent, Beaumont Glass Company, Morgantown,
West Virginia, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening employees with plant closure if they en-
gage in picketing or other protected concerted activity.
(b) Refusing to bargain in good faith with American Flint
Glass Workers Union, by engaging in activities with respect
720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 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
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.’’
to its employees which are directed at bypassing and under-
mining the bargaining representative of those employees.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain collectively with American Flint
Glass Workers Union as the duly designated collective-bar-
gaining representative of all hourly paid production and
maintenance employees employed by the Employer at its
Morgantown, West Virginia facility; excluding factory and
office clericals, technical employees, office janitors and
guards, professional employees and supervisors as defined in
the Act, with respect to rates of pay, wages, hours of em-
ployment and other terms and conditions of employment,
and, if understandings are reached, embody such under-
standings in a written signed agreement.
(b) Upon reopening the plant, offer to all striking employ-
ees reinstatement to their former positions or, if those jobs
no longer exist, to substantial equivalent positions, without
prejudice to their seniority or other rights and privileges, dis-
charging, if necessary, any replacements, and make whole
any employee not offered immediate and full reinstatement
in the manner set forth in the remedy section of this deci-
sion.
(c) Preserve and, on 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
amounts of backpay due under this this Order.
(d) Post at its facility at Morgantown, West Virginia, cop-
ies of the attached notice marked ‘‘Appendix.’’10 Copies of
the notice, on forms provided by the Regional Director for
Region 6, shall be signed by an authorized representative of
Respondent and posted immediately after their receipt and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT threaten employees with plant closure if
they engage in picketing or other protected concerted activ-
ity.
WE WILL NOT refuse to bargain in good faith with Amer-
ican Flint Glass Workers Union, by engaging in activities
with respect to our employees which are directed at bypass-
ing and undermining the bargaining representative of those
employees.
WE WILL NOT in any like or related manner interfere with,
restrain or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain collectively with American
Flint Glass Workers Union as the duly designated collective-
bargaining representative of all hourly paid production and
maintenance employees employed by us at our Morgantown,
West Virginia facility; excluding factory and office clericals,
technical employees, office janitors and guards, professional
employees and supervisors as defined in the Act, with re-
spect to rates of pay, wages, hours of employment and other
terms and conditions of employment, and, if understandings
are reached, embody such understandings in a written signed
agreement.
WE WILL, on reopening the plant, offer to all striking em-
ployees reinstatement to their former positions or, if those
jobs no longer exist, to substantial equivalent positions, with-
out prejudice to their seniority or other rights and privileges,
discharging, if necessary, any replacements, and make whole
any employee not offered immediate and full reinstatement.
BEAUMONT GLASS COMPANY