Custom Bent Glass Co.

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 373 (N.L.R.B. 1991)

373
304 NLRB No. 46
CUSTOM BENT GLASS CO.
1 No exceptions were taken to the following: the judge’s inclusion of Ron
George in the unit; his exclusion of Fred Pagliari from the unit; his express
dismissal of the allegation that Pagliari’s discharge was unlawful and the alle-
gation that the Respondent unlawfully promised pay raises in return for sup-
port; and his implicit dismissal of complaint allegations that the Respondent
violated Sec. 8(a)(1) by stating that the union does not care about the workers
and only cares about collecting dues, and that there are ways of getting rid
of employees without getting into trouble, and by reminding employees of its
warning against union activity given during job interviews.
2 In affirming the judge’s granting of the General Counsel’s motion to
amend the complaint to include Custom Resources as a named Respondent,
we find no merit in the Respondent’s exception that Custom Resources had
inadequate notice of this amendment because it was not named in the com-
plaint prior to the hearing and was not served with any of the charges or the
complaint. In view of the fact that Custom Resources is an unincorporated sole
proprietorship of Thomas Rice, who was present at the hearing when the mo-
tion to amend was made, we find that it is clear that Custom Resources,
through Rice, had actual notice. See Certified Building Products v. NLRB, 528
F.2d 968 (9th Cir. 1976), enfg. 208 NLRB 515 (1974). In that case the sole
stockholder of a corporation was found to be the alter ego of his corporation.
Service on the corporation was found to be the same as service on him. Fur-
thermore, Custom Resources was not prejudiced by the timing of this notice.
When the motion was made, the judge stated that he would take it under ad-
visement and rule on it in his decision. This provided the Respondent and Cus-
tom Resources adequate time within which to prepare a defense and perfect
their arguments; they made no request for additional time. Therefore, we af-
firm the judge’s ruling.
3 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findigs.
In affirming certain of the judge’s conclusions, we disavow as unnecessary
to the resolution of the respective issues certain findings made by the judge.
Specifically, we place no reliance on his statement in fn. 10 of his decision
that the Respondent committed ‘‘more than the average amount of perjury.’’
Further, because we sustain the judge’s finding that Samosky is a supervisor,
and his recommendation that Samosky be excluded from the appropriate bar
gaining unit on that ground, we find it unnecessary to pass on whether
Samosky’s participation in the Respondent’s antiunion campaign created a
conflict of interest between him and unit employees.
We correct some inadvertent errors of the judge that do not affect the valid-
ity of his decision. Fn. 1 of the judge’s decision should state that the first ad-
ditional charge was filed January 18, not January 12, 1989. In his decision,
the judge misidentified Virgil Cousins as Gerald Cousins. In the section on
James A. Wright’s discharge, the decision should state at Wright, not Bowser,
made the statement that the Union would ‘‘get’’ employees who refused to
sign cards. The section on Charles Colton’s discharge should read that Colton,
not Rice, was laid off on January 20. Finally, in the section of the judge’s
decision on the Union’s majority status, the subsection on Tim Singer’s inclu-
sion in the unit misidentifies him in one instance as Timmy Rice.
4 We find it unnecessary to pass on the judge’s finding that the Respond-
ent’s observation of Union Respresentative Shinn’s passing out union literature
at the Kittanning plant gate constituted unlawful surveillance, because such a
finding would be cumulative.
5 The judge’s recommended Order and notice are modified to conform to
the findings of unfair labor practices.
6 Member Cracraft, concurring, finds the record insufficient to establish the
Union’s majority status prior to January 23, 1989, which accordingly is the
date she would attach to the Board’s remedial bargaining order. Although she
agrees with our conclusion that former employees Jonathan Sheehan and
Randy Shields had abandoned their employment shortly after they were laid
off, she would date the abandonment no earlier than January 23, in disagree-
ment with the judge’s finding that abandonment had occurred by January 12.
Although we agree with our colleague’s observation that Sheehan’s and
Shields’ failure to inquire about recall by the end of the maximum projected
period of layoff further evidences their abandonment of employment, we find
that the record establishes abandonment by the earlier date. As the judge
found, both employees had been laid off on December 30, 1988, after working
for the Respondent for less than a month as general laborers. During that time
they lived in a rented room. Rice stated that there was an attempt to contact
them at the end of January, but they had moved and had not left any forward-
ing address. There is no indication that their departure occurred in the latter,
as opposed to the earlier, part of January. Rice testified that he thought they
had returned to West Virginia, that he did not know how to get in touch with
them, and that there was no attempt to get in touch on their part. In light of
these facts, we conclude that in all probability they abandoned their employ-
ment shortly after being laid off on December 30, if not on that date, and cer-
tainly before January 12. We find that the record warrants the inference that
their attachment to his geographic locality and employment with the Respond-
ent was transient and did not long survive their being placed on layoff status.
7 There is no basis for the judge’s conclusion that the term ‘‘group leader’’
was coined by the Respondent for the purposes of this proceeding. The record
shows that the term predated this proceeding and that the Respondent has not
sought to exclude employees from the unit on the basis of their status as a
group leader. On the contrary, many of the Respondent’s 18 group leaders
were stipulated to be included in the unit.
Custom Bent Glass Company, Custom Glass Cor-
poration, Saxonburg Industries, and Custom
Resources Company and Aluminum, Brick and
Glass Workers International Union, AFL–
CIO–CLC. Cases 6–CA–21537–1 through 6
August 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On January 12, 1990, Administrative Law Judge
Walter H. Maloney issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel and the Charging Party also filed
answering briefs.
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 exceptions1 and briefs and has
decided to affirm the judge’s rulings,2 findings,3 and
conclusions4 and to adopt the recommended Order as
modified.5
1. We agree with the judge’s finding that, by Janu-
ary 12, 1989, the Union had obtained authorization
cards executed by 27 of the Respondent’s employees
who were members of the production and maintenance
unit. In agreeing that this represented a card majority
in that unit, we find that the unit consists of 53 em-
ployees, including 6 persons whom the judge had
found should not be included.6 As explained below, we
reverse the judge’s findings that Scott Geibel, Thomas
Higgins, and Alfred M. Ferrari were supervisors, that
Greg Rearick and John Whitehair had abandoned their
employment with the Respondent following their De-
cember 30, 1988 layoff, and that Donald Freeman,
who was drawing workmen’s compensation, was not in
the unit because he had no reasonable expectation that
he would return to work in the near future.
Regarding the above individuals whom the judge
found were excluded as supervisors, the testimony of
Geibel, Higgins, and Ferrari establishes that they are
classified as group leaders,7 and have no authority to
hire, fire, schedule, reward, discipline or evaluate em-
ployees and that they spend at least 95 percent of their
time doing bargaining unit work. The testimony of
374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 In finding that these two employees had abandoned their employment, the
judge found it unnecessary to resolve whether they otherwise would have had
a reasonable expectancy of recall. In view of the fact that they were informed
that the layoff was ‘‘short term’’ and was premised on a decline in orders,
and that they would be given ‘‘top consideration’’ for recall, we find that in
the absence of any further contrary information, these employees, on January
12, 1989, had a reasonable expectation of recall in the near future.
9 Chairman Stephens did not participate in the Board’s decision in Red
Arrow Freight, but for institutional reasons accepts it as the controlling prece-
dent in assessing Freeman’s inclusion in the unit.
In agreeing that Freeman should be included in the unit, Member Devaney
finds it clear on the facts that Freeman retained his employee status as of de-
terminative date and, accordingly, that Freeman is included in the unit under
either of the views expressed in Red Arrows Freight.
10 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982).
Geibel and Higgins indicates that they have no author-
ity to grant employees time off, and Ferrari, who leads
a crew of up to three employees in the Renfrew plant
on the 11 p.m. to 7 a.m. shift, testified that only in an
emergency would he allow employees to go home
without first checking with Rice or Plant Manager Cot-
ton. Ferrari further testified that he would generally
call Rice or Cotton if his crew had an employee leave
early in order to see if it was necessary to attempt to
call in a replacement; he would act alone only if he
were unable to contact Rice or Cotton. There is no evi-
dence that he had the authority to require employees
to work outside of their scheduled hours. Geibel, who
in January 1989 worked on a shift which started at 7
a.m. in the Renfrew plant, testified that if a scheduled
employee did not come to work he would call Rice or
Cotton before calling another employee to come in to
work. We find that to the extent that these three per-
sons had any involvement in employees’ leaving work
early or being called in outside of their scheduled
hours, their close communication with Rice or Cotton
in these matters precludes a finding that they exercised
supervisory responsibility in this regard. The remaining
distinctive aspects of their employment with Respond-
ent, i.e., their greater seniority, higher pay, job title,
and color of work clothes provide no cognizable indi-
cia of supervisory authority. That these persons may
work at times when no one with greater authority is
present in the plant is inadequate to show supervisory
authority; admitted supervisors were available by tele-
phone. We therefore include these three employees in
the unit.
We find, contrary to the judge, that employees Greg
Rearick and John Whitehair did not abandon their em-
ployment with the Respondent following their layoff
on December 30, 1988, and that, as temporarily laid-
off employees, they had, on the determinative date of
January 12, 1989, a reasonable expectancy of recall
and should be included in the unit.8 Rearick apparently
did not work from the time of his layoff by the Re-
spondent until he returned to work there in July 1989.
Although the evidence indicates that he moved from
his residence on February 6, 1989, and discontinued
his telephone service, this occurred several weeks after
the determinative date for considering his inclusion in
the unit and was not the basis for the judge’s exclusion
of Rearick from the unit. The judge excluded Rearick
from the unit as a constructive quit because during this
period of unemployment he regained the custody of his
children and elected to spend time at home with them.
In the absence of any affirmative indication that
Rearick would not have returned to work if recalled by
the Respondent, we find no support for the judge’s
conclusion that his interest in his children precluded
any interest on Rearick’s part in returning to work with
the Respondent.
As to the issue of Whitehair’s abandonment of em-
ployment with the Respondent, the sole evidence relied
on by the judge in excluding Whitehair from the unit
on this basis is his acceptance of alternative employ-
ment in the geographic vicinity while on layoff from
the Respondent. During this time, and until his return
to employment with the Respondent in the summer of
1989, he maintained the same post office box address
that he had while earlier employed by the Respondent.
We find that Whitehair’s apparently greater interest in
gainful employment during this period is likewise an
insufficient reason to exclude him from the unit on the
ground of abandonment of employment with the Re-
spondent. We shall include both of these employees in
the unit.
Finally, we find that Donald Freeman should be in-
cluded in the unit. As of January 12, 1989, he was still
suffering from a work injury incurred on August 5,
1988, and was drawing workmen’s compensation, and
had neither resigned nor been discharged. An em-
ployee on sick leave is presumed to be part of the unit
absent evidence that the employee has been terminated
or has resigned. See Red Arrow Freight Lines, 278
NLRB 965 (1986).9
2. We affirm the judge’s finding that the inclusion
of John Baker in the Respondent’s layoff of employees
on December 30, 1988, constituted a violation of Sec-
tion 8(a)(3) and (1), but in doing so we disavow his
gratuitious comment that Respondent is ‘‘not a re-
spondent which deserves the benefit of any doubt.’’ In-
stead we rely on the following rationale.
In dealing with the alleged unlawful discharge of an
employee, we first consider whether the General Coun-
sel has made out a prima facie case supporting the in-
ference that union animus was a motivating factor in
the action that was taken.10 We find that such a prima
facie case was made with respect to Baker’s selection
for layoff. Although the General Counsel has not con-
tested the Respondent’s need to lay off some employ-
ees on December 30, he specifically has contested the
lawfulness of Baker’s inclusion in the layoff. The Re-
spondent’s modus operandi at that time was one of
using unfair labor practices to discourage unionization.
375CUSTOM BENT GLASS CO.
11 See Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir.
1966). Of the eight employees laid off on December 30, Baker and Dean
Crawford were the only two to have signed a union card. Dean Crawford’s
card had no date other than the date stamp of January 13, affixed to it by
the Board’s Regional Office. He did, however, testify that he signed his card
in December. Unlike Baker, there is no evidence Crawford engaged in any
other union activity prior to the December 30 layoff.
12 Even if this were relevant, the Respondent has not explained how the sub-
sidy program would have motivated it to recall the less senior workers at that
particular time, rather than adhering to the Respondent’s normal practice of
following seniority. The evidence indicates that employees hired under the
Government subsidy programs were granted subsidies for specific number of
workdays, and that the number of remaining workdays for which they were
entitled to receive a subsidy was unaffected either by their layoff or by the
duration of the layoff. To the extent that the Respondent may be attempting
to suggest that its failure quickly to recall these subsidized employees may
have jeopardized these employees’ interest in further employment with the Re-
spondent (and the Respondent’s ability to obtain all the benefits under a full
subsidy), it has failed to explain why any such apprehension would not have
prevented it from laying off such subsidized employees in the first place. Al-
though at the hearing, it was alleged that there was a shortage of work for
which the subsidized employees and experience, the Respondent has not
claimed that there was no work which they could have performed at the time
of their layoff.
13 That six of the seven discharged or laid-off employees were rehired either
in February or in March does not dissipate the impact of their unlawful dis-
charge or layoff either on them or on their fellow employees. By then, the
Respondent’s point had been indelibly made: the Respondent was willing to
resort to the extreme measure of termination for those employees who sup-
ported the Union, in order to keep the Union out. As stated by the Board in
Quality Aluminum Products, 278 NLRB 338 at 339 (1986), enfd. 813 F.2d 795
(6th Cir. 1987), cert. denied 484 U.S. 825 (1987): ‘‘It is reasonable to assume
that the four [reinstated] employees, once having been laid off for their union
activities, would be ‘painfully aware that future support of a union could lead
to the same end (footnote omitted),’’’ See also Martin City Ready Mix, 264
NLRB 450 (1982), and cases cited therein. We also note that the Respondent
engaged in further unfair labor practices, after the reinstatements, such as as
king discriminatee Six in his reinstatement interview if he was the one who
initiated contact with the Union and, as late as June 1989, asking employee
Claypole if he had signed a union card. See, e.g., Well-Bred Loaf, Inc., 280
NLRB 306 (1986).
Long before the Union’s campaign be both outside and
within the 10(b) period and prior to the December 30,
1988 layoff, the Respondent had interrogated prospec-
tive employees about their union sympathies and
threatened them with discharge if they engaged in
union activity. It had accused one employee (Myers) in
August 1988 of organizing a union, created the impres-
sion that his union activities were under surveillance,
and threatened to discharge him or anyone else for
talking union. Thus, in mid-December 1988, when the
Union began its organizing campaign, the Respond-
ent’s unlawful response was not only predictable but,
as events unfolded, openly manifested. Given this evi-
dence of antiunion activity, we find that the timing of
Baker’s layoff, 1 day after his execution of an author-
ization card and after he had collected several cards for
the Union, was not mere coincidence. Rather, we infer
from the totality of the circumstances—including the
Respondent’s failure to explain why Baker was chosen
for layoff11—that the Respondent learned about
Baker’s union activism before the December 30 layoff,
and that, in keeping with its virulent antiunion stance,
chose to include him in it to rid itself of an active
union adherent and solicitor.
Once a prima facie case is established, the Respond-
ent is required to show that the same action would
have taken place even absent the protected conduct.
We find that the Respondent has presented no evidence
to legitimize Baker’s inclusion in this December 30
layoff. Rather, the Respondent’s evidence is limited to
an attempt to establish why Baker was not recalled in
early January, although less senior employees who had
been laid off with Baker were recalled at that time.
The Respondent contends that these less senior em-
ployees were recalled before Baker because the Re-
spondent’s participation Government programs that
subsidized certain employees made the less senior em-
ployees cost nothing. Had Baker’s status as a laid-off
employee first been established as legitimate, this evi-
dence may well have been relevant to a ‘‘failure to re-
call’’ allegation, but in the present posture it is irrele-
vant to the legitimacy of his original layoff (and also
to the extent of the Respondent’s backpay obliations
concerning Baker).12 In any event, the Respondent has
never explained why the more senior and presumably
more experienced Baker was laid off with the less sen-
ior employees, regardless any evidence in support of
their recall. For the reasons stated above, we that
Baker’s layoff violated Section 8(a)(3) and (1).
3. The judge found, and we agree, that the Union
had obtained signed authorization cards from a major-
ity of the Respondent’s employees and that a bargain-
ing order is therefore warranted to remedy the Re-
spondent’s extensive and pervasive unfair labor prac-
tices in violation of Section 8(a)(3) and (1) of the Act.
Thus, the judge properly relied on the Respondent’s
chief operating officer’s direct involvement in these
violations, including the discharge or layoff of seven
employees and its repeated independent violations of
Section 8(a)(1), including its admission that it had
fired employees involved in union organizing and its
threats to discharge other employees whom it found
were also so involved, and its veiled and explicit ref-
erences to plant closure or limited production as a re-
sult of the employees’ union activity.13 This case is
stronger than Frito-Lay v. NLRB, 585 F.2d 62 (3d Cir.
1978), in which the court found a bargaining order
warranted, notwithstanding its refusal to uphold the
Board’s finding that the closing of the plant was un-
lawful. In that case, as in the one at hand, there were
threats of discharge, the creation of the impression of
surveillance, and threats to close the plant as a result
of the employees’ union activity. Therefore, we find,
as did the administrative law judge, that in light of the
flagrant unfair labor practices of the Respondent there
is little likelihood that the employees could have exer-
cised free choice in an election. Accordingly, the Re-
spondent violated Section 8(a)(5) and (1) by refusing
the Union’s demand for recognition. We shall date this
376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 The Union’s majority was established on the previous day, January 12.
Only 3 of the 27 cards were undated. Testimony establishes that those three
signed by January 12. Of the dated cards, none contain a date later than Janu-
ary 12.
1 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
2 The exclusion of Sheenan and Shields from the unit is crucial to establish-
ing the Union’s majority status. The Union has 27 valid authorization cards.
The unit, after the various inclusions and exclusions made by the judge and
my colleagues, consisted of 53 employees. Thus, Sheenan and Shields (neither
of whom signed an authorization cards) are included in the unit, the Union
would not have attained majority support.
I agree with the judge and my colleagues that Dennis Plaisted and John A.
Howryla should not be included in the unit, but I do so solely on the grounds
that they lack a community of interest with the unit employees.
3 Although the Union’s bargaining demand was made nearly 2 weeks before
the date, a bargaining demand, at least in the presence of unfair labor prac-
tices, is a continuing one. Jimmy-Richard Co., 210 NLRB 802, 807–808
(1974). It would be futile to require a new demand in the face of an employ-
er’s unfair labor practices.
4 Even though Sheenan and Shields are excludable as of this date, the Union
did not then have majority status. The size of the unit was increased when
Robert Hiles was rehired on January 25, 1989. Thus, at the end of January
the Union would have had only 27 cars in a unit of 54 employees.
5 There is no evidence that employees Rearick and Whitehair had, like
Sheenan and Shields, left the area. In any event, in light of my findings that
Sheenan and Shields should be excluded, I find it unnecessary to decide
whether Rearick and Whitehair are properly included in the unit.
violation and the bargaining order from January 13,
1989.14
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondents, Cus-
tom Bent Glass Company, Custom Glass Corporation,
Saxonburg Industries, and Custom Resources Com-
pany, Kittanning and Renfrew, Pennsylvania, their offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) Offer to Steven Six, Gary Bowser, Virgil K.
Cousins, James A. Wright, John McKinney, John
Baker, and Charles Colton immediate and full rein-
statement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed, and make them whole
for any loss of earnings and other benefits suffered as
a result of the discrimination against them, in the man-
ner set forth in the remedy section of the decisio if
they have not already done so.’’
2. Add the following as paragraph 2(b) and reletter
the following paragraphs.
‘‘(b) Remove from its files any re ference to the un-
lawful discharges layoffs and notify the employees in
writing that this has been done and that the discharges
and layoffs will not be used against them in any way.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
MEMBER CRACRAFT, concurring.
I agree with my colleagues’ findings regarding the
numerous violation of Section 8(a)(1) and (3). I also
agree that an 8(a)(5) Gissel1 bargaining order is war-
ranted. I do not, however, agree that the Union’s ma-
jority status was established as of January 12, 1989,
the date of the Union’s bargaining demand, because I
believe that the evidence fails to show that laid-off em-
ployees Sheenan and Shields had abandoned their em-
ployment as of that date.2 For the reasons set forth
below, I would, however, find that the record estab-
lishes that Sheenan and Shields had abandoned their
employment at least as of January 23, 1989. Accord-
ingly, I would date the Gissel bargaining obligation as
arising as of that day.3
Sheenan and Shields were laid off on December 30,
1988. As my colleagues find in their discussion of the
layoff of Rearick and Whitehair, who were also laid
off on December 30, the laid-off employees had a rea-
sonable expectancy of recall in the near future. The
layoff letters, set out in full in the judge’s decision, ad-
vised that the Respondent was announcing a short-term
layoff relate to a decline in orders and that the Re-
spondent anticipated that the layoff would last 2 or 3
weeks. As Sheenan and Shields were temporarily laid
off, they would be included in the unit unless there is
positive evidence that they had abandoned their em-
ployment.
I believe the evidence is sufficient to show that
Sheenan and Shield abandoned their employment (i.e.,
recall rights) at least by the end of January 1989. They
had been employed for less than a month and had been
living in a boarding house before they were laid off on
December 30. At the end of January, when the Re-
spondent unsuccessfully sought to contact them, the
Respondent learned they had moved from the area
without leaving forwarding addresses. Thus, at least as
of that date, Sheenan and Shields were no longer in
the unit.4
As stated above, I also believe that the record rea-
sonably supports finding that Sheenan and Shields had
abandoned their employment at least Monday, January
23, 1989. They had been employed for less than a
month and were living in a boarding house when they
were laid off on December 30. When they were laid
off they were told that the layoff would be for 2 or
3 weeks. Yet, neither Sheenan nor Shields made any
effort to contact the Respondent. Their failure to con-
tact the Respondent when more than 3 weeks (the
maximum expected period of layoff) had passed, espe-
cially in light of their short employment tenure and
their transient living arrangements, is I believe suffi-
cient evidence to find that they had abandoned their
employment at least as of January 23.5
Accordingly I would find that the record establishes
that the Union had majority status on January 23,
377CUSTOM BENT GLASS CO.
6 As Sheenan and Shields are excluded from the unit, on this date the unit
consisted of 53 employees, and the Union had 27 authorization cards, a bare
majority, but nonetheless a majority.
1989.6 As all the other elements of a Gissel bargaining
order are present, I agree with my colleagues that a
Gissel bargaining order is warranted.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT coercively interrogate our employees
concerning their union activities.
WE WILL NOT engage in surveillance of the union
activities of our employee and WE WILL NOT create in
the minds of our employees the impression that their
union activities are the subject of company surveil-
lance.
WE WILL NOT threaten to discharge employees be-
cause of their union activities and WE WILL NOT tell
employees that other employees have been discharged
for engaging in union activities.
WE WILL NOT solicit employees to withdraw their
union authorization cards.
WE WILL NOT promise employees unspecified bene-
fits if they cease supporting the Union.
WE WILL NOT tell employees that we will never rec-
ognize a union, will never bargain with a union, or
will never sign a contract with a union.
WE WILL NOT tell employees that engaging in union
activities would be futile because company officers
have bought off unions before and will buy them
again.
WE WILL NOT threaten to reduce production or to
close the plant if a union represents our employees.
WE WILL NOT threaten to withhold pay increases or
to cease investing in the Company if a union rep-
resents our employees.
WE WILL NOT advise employees that their reinstate-
ment is conditioned on abandoning support for the
Union.
WE WILL NOT promulgate or enforce an overly
broad no-solicitation rule.
WE WILL NOT discharge or lay off employees or
otherwise discriminate against them in their hire or
tenure in order to discourage their support and activi-
ties on behalf of Aluminum, Brick and Glass Workers
International Union, AFL–CIO–CLC or any other labor
organization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL on request, bargain with the Union as the
exclusive representative of the employees in the fol-
lowing appropriate unit concerning terms and condi-
tions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
All of the full-time and regular part-time employ-
ees employed at our Renfrew and Kittanning,
Pennsylvania, factories, exclusive of office cleri-
cal personnel, salesmen, professional employees,
guards and supervisors as defined in the Act.
WE WILL offer immediate and full reinstatement to
Steven Six, John McKinney, Gary Bowser, Virgil K.
Cousins, John Baker, James A. Wright, and Charles
Colton to their former jobs or, if their former jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed and we will make them
whole for any loss of earnings and other benefits re-
sulting from their discharge or layoff, less any net in-
terim earnings, plus interest, unless we have already
done so.
WE WILL notify each of them that we have removed
from our files any reference to his discharge or layoff
and that the discharge or layoff will not used against
him in any way.
CUSTOM BENT GLASS COMPANY, CUS-
TOM GLASS CORPORATION, SAXONBURG
INDUSTRIES, AND CUSTOM RESOURCES
COMPANY
Donald J. Burns, Esq. and David L. Shepley, Esq., for the
General Counsel.
Thomas H. M. Hough, Esq., of Pittsburgh, Pennsylvania, for
the Respondent.
R. Michael LaBelle, Esq., of Washington, D.C., for the
Charging Party.
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY, Administrative Law Judge. This
case came on for hearing before me on an unfair labor prac-
378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The principal docket entries in this case are as follows:
Charge filed by Aluminum, Brick and Glass Workers International Union,
AFL–CIO–CLC (the Union) against the Respondent in Case 6–CA–21537–1
and –2 on January 17, 1989; additional charges in other subdockets filed by
the Union against the Respondent on January 12, 20, and 25 and February 9,
1989; original consolidated complaint issued by the Regional Director for Re-
gion 6, against the Respondent on March 1, 1989; Respondent’s answer filed
on March 14, 1989; complaint issued by the Regional Director for Region 6,
against the Respondent on March 21, 1989, in Case 6–CA–21537–4 and con-
solidated with the original consolidated complaint on June 9, 1989; Respond-
ent’s answers filed on March 30 and June 22, 1989, respectively, to these
complaints; hearing held in Kittanning, Pennsylvania, on July 10–13, 1989,
and August 8, 1989; briefs filed with me by the General Counsel, the Charg-
ing Party, and the Respondent on or before October 5, 1989.
2 Respondent admits, and I find, that Custom Bent Glass Company and Cus-
tom Glass Corporation are companies doing business at Renfrew and
Kittanning, Pennsylvania, where they manufacture flat glass and bent glass.
During the 12-month period ending January 31, 1989, they manufactured and
shipped from their Renfrew and Kittanning, Pennsylvania places of business
directly to points and places outside the Commonwealth of Pennsylvania goods
and materials valued in excess of $50,000. Accordingly, they are employers
engaged in commerce within the meaning of Sec. 2(2), (6), and (7) of the Act.
The Union is a labor organization within the meaning of Sec. 2(5) of the Act.
3 The eight discriminatees named in the consolidated complaint, as amended,
are Steven Six, John McKinney, Gary Bowser, John Baker, Virgil K. Cousins,
Fred Pagliari, Charles Colton, and James A. Wright.
4 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
5 Saxonburg Industries is owned by Rice’s wife and son but he is its operat-
ing chief. (According to Rice, they ask his ‘‘advice.’’) Saxonburg was set up
to take advantage of certain trade discounts which suppliers extend to brokers
but not to manufacturers. Saxonburg buys various items used by Custom Bent
Glass and then ‘‘sells’’ them to the Respondent at the discounted price. Cus-
tom Bent Glass is the biggest ‘‘customer’’ of Saxonburg. The rest of its pur-
chases are sold on the open market at markups which are established by John
Rice, the son of Thomas Rice and President of Saxonburg. Saxonburg occu-
pies part of the Renfrew premises rented by the Respondent although its office
and stock of goods is physically located in a separate part of the building. Its
employees are paid on the Custom Bent Glass payroll and perform occasional
clerical services for Custom Bent Glass. Saxonburg is plainly a joint employer
with Custom Bent Glass and a proper Respondent in this case. However, it
does not follow that its employees share a community of interest with Custom
Bent Glass employees which would make them part of the same bargaining
unit.
6 The renovation of the Kittanning plant was accomplished with substantial
assistance from the Commonwealth of Pennsylvania in the form of construc-
tion loans made payable from industrial improvement bonds issued by the
state. In order to qualify as a recipient of these loans, Rice organized another
corporation known as Custom Resources Company. Custom Resources has oc-
casionally employed individuals who have worked for Custom Glass and then
returned to the Custom Glass payroll. It has no other function than to assist
the Respondent in obtaining public funds for the renovation and improvement
of the Kittanning plant and is completely under Rice’s control. Accordingly,
I grant the General Counsel’s motion to include it as a joint employer with
the original Respondent.
7 Six was hired by the Respondent in March 1988, and went on workmen’s
compensation in June when he injured his knee. He returned to work in Sep-
tember on limited duty. In early November, Six, who worked night shift, asked
his foreman, Fred Farrari, to be excused during one shift. His request caused
dispute and acrimony at the plant. Ferrari phoned Rice at the latter’s home
to inform him of the request. According to Six, he was given the night off.
According to Respondent’s witnesses he left without permission. In any event
tice complaint,1 issued by the Regional Director for Region
6 and amended at the hearing, which alleges that Respondent
Custom Bent Glass Company and several joint employers2
violated Section 8(a)(1), (3), and (5) of the Act. More par-
ticularly, the amended complaint alleges that the Respondent
engaged in a variety of independent violations of Section
8(a)(1) of the Act, including coercive interrogation, surveil-
lance of union activities, threats to close the plant or portions
of it in the event of unionization, solicitation of employees
to repudiate their union designation cards, statements to em-
ployees that union supporters had been identified and fired,
threats to get rid of union supporters, threats to refuse to bar-
gain with a union in the event of unionization, threats to
cease investing in the Company and to withhold pay in-
creases in the event of unionization, creating the impression
of surveillance of union activities, conditioning reemploy-
ment on ceasing to support the Union, and discharging or re-
fusing or delaying reinstatement of eight employees because
of their union activities.3 The amended consolidated com-
plaint also alleges that the Union represented a majority of
the employees in an appropriate bargaining unit and that the
Respondent wrongfully refused to recognize and negotiate
with the Union. For this asserted violation the General Coun-
sel seeks a so-called Gissel4 remedy requiring the Respond-
ent to recognize and bargain with the Union. The Respondent
denies these allegations and asserts that certain employees
named in the complaint were laid off for economic reasons
and others were terminated for an assortment of causes. Its
defense relating to employee Fred Pagliari is that Pagliari
was a manager and not an employee who enjoyed the protec-
tions of the Act. Respondent denied that the Union ever
achieved majority status and denie that it has any obligation
to recognize or bargain with it. On these contentions the
issues herein were joined.
FINDINGS OF FACT
A. The Unfair Labor Practices Alleged
Respondent operate two glass manufacturing facilities lo-
cated in two small towns, Renfrew and Kittanning, which are
about 25 miles apart in northwestern Pennsylvania. Custom
Bent Glass, Incorporated, does business as Custom Bent
Glass and is owned in substantial part by its president and
chief operating officer, Thomas E. Rice.5 Its principal prod-
ucts are flat glass and bent glass. The latter is used for archi-
tectural purposes and is normally manufactured to order. Re-
spondent began its operation in 1984 in rented premises at
Renfrew. However, the Renfrew plant proved to be too small
and had poor insulating for certain types of glass manufactur-
ing, so the Respondent purchased an abandoned clothing fac-
tory just outside Kittanning in 1988 and began to remodel it
so it would be suitable for its own purposes. By the end of
1988 the Kittanning plant was in full operation and the Re-
spondent was able to remove both its office and a substantial
portion of its production activity from Renfrew.6 Respondent
still retains the Renfrew facility but it is now much the
smaller of the two plants.
Respondent’s employees have never been represented by a
labor organization. Many of them are unskilled and have a
limited employment history. Many have been hired under
manpower training programs operated by state and Federal
agencies, who subsidize wages for stated periods of time so
that new recruits may acquire both job skills and an attach-
ment to the notion of steady employment.
On or about December 1, 1988, Steven Six, a kiln worker
on the night shift at Renfrew, contacted the Regional Direc-
tor of the Charging Union by calling his office at Greens-
burg, Pennsylvania.7 Six was referred to John Shinn, an
379CUSTOM BENT GLASS CO.
he was laid off for 2 days but was allowed to return on or about November
8 after speaking personally to Rice.
8 Some 23 of the 28 authorization cards in evidence in this case bear a time
and date stamp of January 13, 1989, from the Board’s Pittsburgh Regional Of-
fice where the cards had been submitted along with the Union’s representation
petition in Case 6–RC–10144. The petition was mailed to the Regional Office
on January 12 and received on the morning of January 13. The other five
cards bear the Board’s time and date stamp of January 17, 1989. I take official
notice of that stamp.
9 The eight employees laid off on December 30, 1988, and their dates of
original hire are as follows: John Baker (9/14/88), Greg Rearick (9/16/88),
John Whitehair (9/19/88), Dean Crawford (9/19/88), Kenneth Mohney
(9/26/88), James D. Morgan (9/26/88), Jonathan Sheehan (12/6/88), and Randy
Shields (12/6/88).
10 The Respondent’s defense in this case was accomplished with more than
a routine amount of intimidation and perjury found in a hotly contested Board
proceeding. Rice and his vacillating supervisors were far from credible wit-
nesses, both on the basis of demeanor and by reason of internal and external
contradictions in their stories, including contradictions from company records.
Continued
International representative of the Charging Union, and a
meeting was set up which took place on December 17 at
Cub’s Hall, a gymnasium and recreation hall in Butler, Penn-
sylvania. In attendance at this meeting with Shinn were Six,
John McKinney, an insulator at the Renfrew plant, and
Deron Bartell, a glass cutter. They discussed the mechanics
of organizing the Respondent’s plants. Shinn said he would
like to obtain authorization cards signed by 50 percent of the
employees. He noted that only a 30-percent showing of inter-
est was necessary for an election but, with 50 percent, the
Union could obtain recognition without an election. He also
discussed the protections afforded to employees under the
Act. Shinn had cards with him on this occasion and all three
employees signed them. Shinn gave them additional cards
and told them to make sure that they read the card before
signing it and to make sure that everyone one at both plants
who signed a card understood that, by signing a card, they
were registering to form a union. The cards utilized by the
Union during this campaign read:
Aluminum, Brick and Glass Workers International
Union, AFL–CIO, CLC Official Membership
Application and Authorization
I hereby apply for membership in the Aluminum, Brick
and Glass Workers International Union, AFL–CIO,
CLC, I hereby designate and authorize the Aluminum,
Brick and Glass Workers International Union, AFL–
CIO, CLC, as my collective bargaining representative
in all matters pertaining to wages, rates of pay and
other conditions of employment. I also authorize the
Aluminum, Brick and Glass Workers International
Union, AFL–CIO, CLC, to request recognition from my
employer as my bargaining agent.
Below this printed heading were spaces designated for signa-
ture, name of employer, date, name of applicant, address, and
telephone number.
Cards were circulated thereafter both at the Kittanning and
Renfrew plants by employees John McKinney, Gary Bowser,
John Baker, and possibly others. McKinney used the Re-
spondent’s intracompany mail to transmit cards to Bowser
for use at the Kittanning plant. Six was not working at the
time. He had been laid off on December 10 but was acting
as the contact man between the Union and the solicitors at
these plants. The Union ultimately collected and submitted to
the Board 28 signed authorization cards. Of this number, 15
were executed by card signers on or before December 30,
1988. The rest were executed on or before January 12,
1989.8
On December 30, the Respondent laid off eight individuals
for reasons of economic necessity.9 The General Counsel
does not challenge this assertion but does contend, as dis-
cussed later, that discriminatee John Baker was included
among those selected for layoff for discriminatory reasons.
Three of these employees never returned, two were recalled
on January 9, and one applied to come back July 1989 and
was rehired. Baker, the alleged discriminatee, was recalled
on March 22, and employee Dean Crawford was recalled on
March 24.
On January 4, McKinney, who worked at the Renfrew
plant, had a discussion with Chris Cotton, the Renfrew plant
manager, concerning the Union. He went as far as to offer
Cotton a card. Cotton declined and walked away. The fol-
lowing day McKinney noticed that his name was not on the
work list for the following week and asked Cotton the rea-
son. Cotton said that McKinney was being laid off because
work was slow. A week later, McKinney received a letter,
dated January 12, from Cotton notifying him that he was
being terminated, effective January 12, for ‘‘repeated failure
to follow your supervisor’s instructions, insubordinate atti-
tude and always continually arguing, all of which have re-
sulted in poor workmanship, scraps, rejects, and customer
dissatisfaction as well as extensive monetary loss to the
Company. The Company policy has always been to send an
employee home from work until all the facts are evaluated
and a discussion is made on the facts.’’ The letter was the
first notification McKinney had received that his job per-
formance had been in question or that the absence of his
name from the assignment sheet had been occasioned by
anything other than sluggish economic conditions.
The Union conducted two organizational meetings in early
January, one at the Cubs’ Hall in Butler and the other at
Hose Company No. 6 Fire Hall in Kittanning. The first meet-
ing took place on January 7 and the second occurred on Jan-
uary 11. Among those in attendance at the first meeting were
Baker, Six, Cousins, McKinney, and employee Joseph
Hockenberry. At this meeting Baker turned in several signed
cards which he had collected. Additional blank cards were
given to other employees for distribution. On January 10,
Shinn sent Rice a letter which read:
You have been aware for several weeks that the
above named Union has been conducting an organiza-
tional drive for unionization of the above-named facili-
ties.
During this period and continuing to present day,
you and your agents have been violating the rights of
the employees as guaranteed under Section 7 of the
Federal Labor Laws.
The letter went on to outline to Rice certain organizational
rights which are protected by statute and to warn him that
the Union would protect those rights to the fullest extent.
Rice denies knowing the existence of an organizational drive
as early as December 30 but admits learning about it during
the first or second week of January10 and before giving
380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Individual employee card signers were summoned by the Respondent for the
purpose of repudiating their union authorizations or providing evidence which
would require the Board to invalidate their cards. They testified within a few
feet from where Rice was sitting. They clearly appeared to be afraid for their
jobs and anxious to ingratiate themselves with a company president who had
been quite adamant in letting them know his opposition to the unionization
of the plants. I place little reliance on their testimony as well.
11 There is some difference in the record as to whether the Kittanning
speech took place on Thursday, January 12, or Friday, January 13, but this
question is immaterial to the resolution of the case. I discredit Cook’s testi-
mony that the Kittanning meeting took place on Wednesday, January 11. Both
speeches took place after the January 11 union meeting at the Kittanning Fire
Hall.
12 Rice and other Respondents witnesses tried to soften the impact of this
remark by saying that Rice told employees that he would not personally nego-
tiate a contract but would leave it to others to do the negotiating, reserving
to himself the final approval of any contract proposals. I discredit this testi-
mony and credit Hockenberry’s testimony, as set forth above.
13 At the time of the hearing, the Respondent was still producing flat glass.
However, in January 1989, this line had been discontinued at Renfrew and was
being concentrated at Kittanning. When Cotton was asked why Rice was both-
ering to discuss the prospects for flat glass production at a plant where it had
already been discontinued, he said that he did not know.
speeches to assembled employees at Renfrew and Kittanning
on the subject. I credit the testimony of Donald Myers that,
as early as August 1988, he held a conversation with Re-
spondent’s vice president, George Sutorka, in which Sutorka
told Myers that Rice had phoned him to say that Myers was
involved in organizing a union. Myers denied this accusation,
which occurred about 3 months before the Union herein
began to distribute cards. He asked Myers how he felt about
unions. Myers replied that he could ‘‘take them or leave
them.’’ Sutorka warned him that the Company would not tol-
erate a union and that Myers or anyone else who talked
union would be fired.
The second general union organizational meeting (and the
third of any kind) took place on the evening of January 11
at the firehouse. It was attended by about 17 employees. Au-
thorization cards were signed or turned in at this meeting.
The fire hall is located in the Borough of Kittanning, a mile
or two from the plant and much closer to the homes of most
of the Respondent’s employees than the plant at Renfrew.
Company Supervisors Scott Steffi and Joe Cook, as well as
Jerry Samosky whose supervisory status is in dispute, knew
of this meeting. They were out drinking at a bar called Twin
Pines, located on the outskirts of town, and started riding
around in a car. They assertedly were in search of a six-pack
of beer and drove to another bar known as B. J.’s, which is
located within the borough about a block or so from the fire-
house. They drove past the firehouse and noticed that cars
belonging to some of the Respondent’s employees were
parked outside. One vehicle they recognized was a pickup
truck belonging to employee Dewayne Stevenson. The next
day Cook brought this fact to the attention of employees
Gerald Brocious, James Wright, and Ron Smail, telling them
that he knew they had attended the union meeting which had
been held the previous evening. Samosky asked one group
of employees who was going to be the union president.
On January 12, Shinn wrote a letter from the union office
at Greensburg, Pennsylvania, to Rice in which he asserted
that the Union represented a majority of the production and
maintenance employees at both Renfrew and Kittanning. He
demanded recognition. In that letter Shinn stated that the
Union was willing to submit signed authorization cards to a
third party for verification. Along with this letter Shinn for-
warded two letters, both dated January 11 and signed respec-
tively by McKinney and Cousins. They were identical in
form. In these letters McKinney and Cousins stated that they
supported the Union and insisted on recognition by the Com-
pany of their right to assist the Union in organizing the Re-
spondent’s facilities.
On the same day, Rice gave massed assembly talks to em-
ployees at both plants.11 The first one took place at Renfrew
during the morning hour and was delivered to a small gather-
ing of about 15 employees around a work table. Rice said
at this meeting that he was aware that the Union was orga-
nizing the plant and mentioned that he had a list of those
who had attended the union meeting the night before. He
stated that he knew who was there and who was not there.
Rice then asked Dewayne Stevenson what he thought of the
union meeting he had attended the previous evening at
Kittanning. Stevenson simply got red in the face and made
no reply.
Rice said that employees had the right to organize but they
could not do so on company property, adding that a couple
of employees at the Kittanning plant had done so and had
been fired. He told the employees that he did not want them
to organize the Union and warned them that he had bought
off unions before and would do it again. He also told em-
ployees that he would not sign a contract with a union.12
Rice told the Renfrew employees that the lease on the
Renfrew plant was scheduled to expire in a year and he had
a 2-year option on it. He did not know at that time whether
or not he would renew it. Rice then announced he was think-
ing of moving the plant to a new location 5-miles away. He
also said that the flat glass product line was running a low
profit and that the Respondent could not compete in this line
with other companies. He was thinking of changing product
lines and manufacturing a thicker, more expensive glass and
shutting down the flat glass operation, but, at that point, he
was not sure what he was going to do.13 Rice stated that the
older people who had been with him from ‘‘day one’’ would
always be assured of a job. In this connection he mentioned
Cotton, Geibel, Tom Higgins, Elmer Covert, and Bob Beatty
by name. He also said that he knew who was trying to ‘‘take
him down’’ and he would get rid of them.
Rice went on to tell the Renfrew employees that he real-
ized that many of them were young and did not know much
about unions so he would tell them what unions were like.
He said that the first and most important thing that unions
try to do is to establish seniority but the Company already
had seniority, more or less.
Following the meeting, Cousins had a private conversation
with Cotton concerning Rice’s remarks. Cousins mentioned
to Cotton that he thought that Rice was serious about what
he had said concerning unionization. Cotton agreed but told
Cousins that he had nothing to worry about. At this point in
the conversation Cousins told Cotton that he had signed a
paper that would be sent to Rice with a union petition saying
that he was in favor of it. His reference was to the letter
dated January 11 which he had signed at the union meeting
at the firehouse. Cotton said that Cousins probably did not
have anything to worry about since Rice liked his work. He
indicated that he would speak to Cousins later to see if
381CUSTOM BENT GLASS CO.
14 I discredit Cotton’s assertions that he never discussed the Union with
Cousins and that Cousins never told him that he was active on behalf of the
Union.
15 There is disputed testimony in the record that Rice referred to the instiga-
tors of the union effort in scatalogical terms. It is not necessary to resolve this
factual question.
16 Montgomery was summoned by the General Counsel to testify on other
matters and was not asked to corroborate or to deny Sutorka’s claim that Bow-
ser had solicited for the Union on company time or property in violation of
a company rule. No company rule was placed in evidence forbidding any kind
of soliciting.
17 In his testimony in this case, Sutorka stated that it was Dennis Plaisted,
an office employee, who had reported to Rice that Wright had threatened to
Continued
unionization is what Cousins really wanted. As outlined later,
Cousins was fired the next morning.14
Rice then spoke to a somewhat larger gathering at the
Kittanning plant. He began by saying that he was not in
favor of unionization and he did not know why employees
were trying to organize, adding that he was trying to be fair
with employees. He reminded them that the Respondent was
just a small company and was just starting out in business.
He also told the assembled gathering that he had gotten rid
of the two main individuals15 in the union effort. He knew
there were more and he would find out who they were. He
went on to say that, if the Union came in, he would shut
down the flat glass line or run it at minimum production with
people he could trust. There would be no raises and he
would not put any more money into the Company until the
whole union question was resolved. If the Union persisted,
he would simply close down the entire plant, take his money,
and go home because he did not need the Kittanning employ-
ees to run his plant. There were other places where he would
operate a factory. He said that he did not want a union and
would not negotiate with one because he could not afford
one. In that event employees would simply be out on a pick-
et line without a job.
After Rice finished speaking, Sutorka added a few words
of his own to Rice’s remarks. He told the employees that
they should be careful before signing a union card and sug-
gested that newer employees who had never dealt with
unions before should speak with others who had, such as
Samosky, Myers, Mohney, Morgan, Covert, and Higgins. He
said that he and Rice had an open door policy and would
be glad to talk with any employees who had questions about
the Union. He urged people to pull together, mentioning the
fact that the Company was having quality control problems
and was losing money on the flat glass line.
On the afternoon of January 13, at the end of the day shift,
Shinn began to distribute union leaflets in front of the
Kittanning plant. He stood at the driveway entrance and
handed leaflets to seven or eight employees. Immediately
after his arrival, Sutorka, Samosky, and Mary Cirillo, a cleri-
cal employee, emerged from the plant and began to watch
him. Sutorka stood about 10 feet from Shinn, near a point
where the driveway meets the public road; Samosky sta-
tioned himself on a porch attached to the factory building
about 80–90 feet away.
During the 2-day interval of January 12 and 13, the Re-
spondent discharged five employees, all of whom were card
signers. Six, who had been on layoff status for more than a
month, received a letter dated January 12 from Cotton telling
him that he was discharged for ‘‘refusal to work and walking
off [an] assigned shift after being told of the consequences
of doing so’’ and, after returning to work on probationary
status,’’ violating company rules by soliciting, lecturing, and
continually interrupting other employees’ work.’’ As indi-
cated before, McKinney, who had been on layoff status since
January 4, received a discharge letter, dated January 12 and
signed by Cotton.
On January 13, Cousins, who had mentioned on the pre-
vious day to Cotton the fact that he had signed a union form,
was summoned to Cotton’s office by Scott Geibel, where he
was told by Cotton that he was being fired for unsatisfactory
completion of his probationary period. Cousins asked Cotton
what that meant in plain English. Cotton replied that it meant
that Cousins had a poor attendance record—too many days
off and too much tardiness. A week later, Cousins came to
the Renfrew plant to turn in his uniform and to get his final
paycheck. He spoke with employee Rick Moses, who said he
would have to check with Rice before releasing the pay-
check. After this conversation ended, Cousins asked to speak
to Rice over the phone. Rice said he would talk to Cousins
that afternoon. Later on Cousins phoned Rice and asked for
his job back. Rice replied that Cousins would have to
straighten up his act. Cousins promised that he would do so.
Rice then said he would still have to determine whether
Cousins should return to work at Renfrew or at Kittanning
so he would have someone phone Cousins to inform him
which one it would be. Cousins then told Rice that he knew
why he was being fired. Rice’s response once again was that
Cousins would have to straighten up. Cousins asked Rice if
Rice wanted him to retract his union card and the affidavit
he had given to the Board. Rice said that this would not be
necessary. Cousins resumed working for the Respondent on
February 1 at the Kittanning plant.
On December 29, Gary Bowser signed a union card. Be-
tween that date and the time he was discharged on January
13, he had solicited cards from other employees at
Kittanning. During this period of time, Sutorka spoke to him
in the cutting area of the kiln room and told Bowser that he
had heard rumors that Bowser was advocating and soliciting
for a union. Bowser denied doing so but told Sutorka that,
if anyone were to hand him a card, he would sign it. On the
morning of January 13, Supervisor Scott Steffi asked Bowser
to report to Sutorka’s office. When Bowser arrived, Sutorka
told him point blank that he was discharging him for solicit-
ing and for campaigning for a union on company time and
company property. Bowser asked Sutorka who had told him
that he had been campaigning for a union on company time
and company property. Sutorka refused to say. In his testi-
mony in this case, Sutorka stated that Bowser had been re-
ported by employee Donald Montgomery.16
Employee James A. Wright was discharged on January 13
under much the same circumstances. He had signed a union
card on December 29 and had attended one of the Union’s
organizational meetings. Wright was one of the employees to
whom Cook was speaking when he disclosed that he had
been riding up and down in front of the firehouse to find out
who was attending a union meeting. On January 13, Wright
was summoned to Sutorka’s office and discharged by
Sutorka for engaging in union activity on company time and
for making ‘‘terroristic’’ threats. When Wright asked Sutorka
who had accused him of making ‘‘terroristic’’ threats,
Sutorka refused to say.17 Later on in the day, Cook spotted
382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
do serious damage to his auto. Rice testified that Plaisted had brought this
complaint to Sutorka, not to him. In his testimony, Plaisted testified credibly
that he had not made any complaint about Wright to anyone, that Wright had
made no threats at all, and that he felt that Wright was just ‘‘blowing smoke’’
when Wright said to a group of employees that they would ‘‘get’’ anyone who
did not vote for the Union.
18 There is no corroboration in this record for Rice’s claim that any employ-
ees told him that he would like to resign from the Union or retract his card.
I discredit this statement.
19 In addition to the meetings previously mentioned, the Union held a meet-
ing at the Kittanning firehouse on January 19. This is one of the two meetings
referred to by Colton in his testimony.
Wright walking along a roadside and gave him a lift in his
car. As they were riding along, Cook told Wright, ‘‘Don’t
worry. After this all blows over, [you] will get your job
back.’’
Rice testified that a lot of employees told him that they
had signed cards. Among this number he mentioned
Brocious, Nick Valerio, Stevenson, and Hockenberry. At
Rice’s request, Valerio showed him a union card. Employee
William Best and other employees showed Rice blank cards
they had received. According to Rice, a number of employ-
ees mentioned to him that they would like to retract their
cards.18 Rice admitted that he phoned the Board’s Regional
Office in Pittsburgh to obtain information about how an em-
ployee could retract his union card. He learned that any let-
ters of retraction would have to be sent to the Union’s re-
gional office in Greensburg, Pennsylvania; he gave this infor-
mation to group leaders. While denying that he had in-
structed any employee to draw up a form to facilitate the re-
traction of union cards, Rice stated that he knew that such
forms had been prepared and left in the plant for employees
who wished to use them. The form contained the name and
mailing address of the Union’s regional director and stated
in its text:
This is to advise you that I am taking this means of
withdrawing my application for membership in the Alu-
minum, Brick and Glass Workers Union.
I will vote ‘‘no union’’ if election is held.
The Union received signed retraction forms from employees
Hockenberry, Diane Raimondi, Howard L. White, Montgom-
ery, Valerio, and Karen Goodgasell.
Discriminatee Fred Pagliari was an employee of Respond-
ent Saxonburg Industries and worked in a section of the
Renfrew plant which had been sectioned off and assigned to
Saxonburg. He was hired on September 19, 1988, for $6 an
hour and given the title of manager, although, for much of
his tenure as a Saxonburg Industries employee, he had no
one to manage. He reported to John Rice, the son of Thomas
Rice, who is the president of Saxonburg Industries. John
Rice normally works at Kittanning, not at Renfrew, so
Pagliari had no onsite supervision during most of his work
day. On October 24, 1988, Rick Moses was hired by
Saxonburg Industries and was trained to replace Pagliari. He
now has Pagliari’s title and job functions although those
functions have changed slightly as Saxonburg Industries has
enlarged its activities. Pagliari did some selling of Saxonburg
Industries inventory items, assisted with the bookkeeping, did
routine banking and wrote checks for purchases, made deliv-
eries, drove a pickup truck, and performed minor clerical
chores for Custom Bent Glass at Renfrew. On December 21,
1988, Pagliari signed a union card which was presented to
him by McKinney. On January 17, 1989, he was fired and
replaced by Moses. Pagliari did not testify in these proceed-
ings, so the record is incomplete as to his version of the
events which surrounded his discharge. John Rice testified
that Pagliari was discharged for excessive absenteeism and
poor recordkeeping, including poor maintenance of inventory
records.
Charles Colton, a laminator at the Kittanning plant, was
hired in August 1988. He signed a union card which Baker
had given him and attended both union meetings in Janu-
ary.19 He also solicited cards from at least two other card
signers. Sometime in January, Rice had a conversation with
Colton concerning the organizing activity. The thrust of a
question put to Colton by Rice was whether there was any-
thing that he could do to satisfy employees so they would
not be seeking help from a union. Colton replied that there
was not and admitted to Rice that he was attending union
meetings. When Rice asked Colton why he was attending
these meetings, Colton simply replied that he wanted to see
both sides of the story. Colton was laid off on January 20
ostensibly for lack of work. Cook told him that business was
slow but that he would be recalled. Colton obtained other
employment shortly thereafter and was never recalled.
On January 20, Rice held another general meeting with
Kittanning employees at which he discussed company busi-
ness. In the course of this meeting he mentioned the organiz-
ing of the plant. I credit the testimony of employee Ronald
Small that Rice said on this occasion that he had a list of
those who had attended the union meetings and that he knew
the names of each and everyone who had done so. Rice re-
peated his early statement that he would never recognize a
union and would never negotiate a contract. I also credit the
testimony of Colton that Rice mentioned during this talk that
union card revocation slips were available and had been post-
ed on the company bulletin board. Rice complained that he
had taken a lot of the employees then working at the plant
off the street and expressed his dismay that unionization was
all the thanks he had gotten for his efforts. He stated that he
had fired a few union supporters and, if he found others, he
would fire them too. He went on to say that, if the Union
wanted an election, he would be glad to have one there and
then so unionization would be stopped and the Company
could get back on track.
Both before the Union began its organizing drive and
throughout the events of December 1988, and January 1989,
Rice and other supervisors held private conversations with a
number of employees in which they expressed company op-
position to the unionization of the plants in most emphatic
terms. Some of these conversations took place during job
interviews. The application form for employment with the
Respondent filed by Six in the spring of 1988 disclosed that
he had previously worked for a unionized glass manufac-
turer. During an employment interview which took place on
March 24, 1988, Rice told Six that he did not like unions
and did not want a union in the plant. Rice warned Six that,
if he attempted to form a union at the Respondent’s plant,
Rice would ‘‘fire his ass.’’
McKinney began working for the Respondent in December
1987. In the course of his employment interview, Rice asked
McKinney how he felt about unions. McKinney replied that
it did not matter to him one way or the other. Rice then told
383CUSTOM BENT GLASS CO.
him, ‘‘We really don’t need one here.’’ Hockenberry came
to work for the Respondent in May 1987. During the course
of his employment interview, Rice told him that the Com-
pany did not need a union and that Hockenberry would be
better off if he did not have anything to do with unions.
Hockenberry replied that he had never had anything to do
with unions so he did not know whether they were good or
bad.
Patrick Claypoole started with the Respondent in July
1988. In an employment interview with Rice which took
place on July 6, 1988, Rice told Claypoole that he was not
in favor of unions and that the plant was better off without
one. He warned Claypoole that, if Claypoole mentioned
unions, he would ‘‘be out the g.d. door.’’ Claypoole’s re-
sponse was that he never had anything to do with unions. In
mid-January, after the furor over the organizing effort had
reached a high pitch, Claypoole had occasion to speak with
Rice to inquire how much time he had in grade and when
he would be eligible to receive fringe benefits. Rice took ad-
vantage of this occasion to ask Claypoole what he thought
‘‘about this g.d. union bull shit that was going on.’’
Claypoole replied that his brother worked at the Pullman-
Standard plant and that a union did not do anything for him
there, so he did not feel that he needed one. Rice then stated,
‘‘Well, at least I know we got one good non-union vote.’’
By that time Claypoole had signed a union card which was
submitted to the Board along with the representation petition.
He admitted on the stand that he had been lying to Rice on
that occasion.
Sometime during the month of January, Rice called em-
ployee Lorne Fair to his office for a private talk. Rice told
Fair that he was not for a union and asked Fair if he was.
He also told Fair on this occasion that the flat glass line was
not making any money and, if a union came in, he would
reduce it to minimum production and operate with just a
handful of people whom he could trust.
Wright was hired in August 1988, after an employment
interview with Sutorka. During the course of this interview,
Sutorka told Wright that, if he had anything to do with a
union, the Company would get rid of him. In January 1989,
a few days after the employee meeting at Kittanning in
which he denounced the Union, Rice had occasion to speak
with Brocious in the flat glass cutting area. Rice told
Brocious that, if he would stay out of the Union, he would
take care of him. In June 1989, Brocious was given the title
of group leader in the kiln area, although this designation did
not result in any pay increase.
Donald K. Myers was hired by the Respondent in June
1987. During his employment interview, Rice asked him how
he felt about unions. Myers replied that he could take them
or leave them. Rice then told Myers that he would not toler-
ate a union in the plant and that Myers and anyone else
would be fired if they discussed unionizing. On January 13,
in a private conversation between Myers and Cook following
Rice’s first speech to the Kittanning employees, Cook told
Myers that Rice had meant what he said about shutting the
plant doors if a union came in.
Donald Montgomery signed a union card on January 12.
An hour or two later, Rice called him into the office and
questioned him about the card. He began by asking Mont-
gomery if he was nervous. When Montgomery replied that
he was not, Rice said that he ought to be and called him a
‘‘— asshole.’’ When Montgomery asked Rice why he made
such a statement, Rice told him that he just voted ‘‘yes’’ for
the Union by signing an authorization card. Montgomery dis-
agreed. Rice repeated that, by signing his name on the card,
this was what Montgomery did. Montgomery told Rice that,
the way he understood it, he had to be contacted by the
Union one more time.
Early in January, Sutorka called several employees into his
office to discuss their feelings respecting unionization. He
stated on the stand that Rice had asked him whether Gary
Bowser had solicited authorization cards on company prop-
erty and surmised that Rice wanted this information because,
as an owner, he was entitled to know what the employees
were doing. Sutorka also testified that, later on in the year,
he had asked Samosky whether Claypoole had signed a card
because, ‘‘as management, we needed to know.’’ Sutorka
testified that calling employees into the office to discuss the
union drive was part of his ‘‘open-door’’ policy—if employ-
ees had problems or if anything was not right, Sutorka want-
ed employees to talk to management about it. Karen
Goodgasell, who had signed a union card, reportedly told
Sutorka during her interview that the Company had been
very good to her and that she had no complaints and no
thoughts of union activities. Doug Kolich, who had also
signed a card, told Sutorka that he did not think that he
would be in favor of a union. Sutorka also believed that he
had one of these individual interviews with employee James
Shannon, another card signer.
During the period when union organizing was particularly
active, employee Donald Freeman was absent because of a
long-term disability and was drawing workmen’s compensa-
tion. Late in the evening of January 12, Rice phoned Free-
man at his home to ask him to return some company uni-
forms which Freeman still had in his possession. During the
course of the phone call, Rice accused Freeman of being the
ring leader of the union movement and asked him, ‘‘How
could you do this to me?’’ He told Freeman that he had con-
crete evidence that Freeman was the ring leader and re-
minded Freeman that he had told the insurance company that
he thought that Freeman had a legitimate compensation case.
Rice asserted that it was he who was feeding Freeman’s fam-
ily by letting compensation payments continue but threatened
to call the insurance company and stop the payments because
everyone was saying that Freeman was the one who had
started the union effort at the plant. Freeman was still draw-
ing workmen’s compensation for a herniated disc at the time
the hearing in this case took place.
In June or July 1989, Sutorka asked Samosky whether or
not Claypoole had signed a card. Samosky phoned Claypoole
from the plant and asked him if he had signed one.
Claypoole said that he did not sign a card and Samosky re-
layed this information to Sutorka.
On advice of counsel, all five employees who were dis-
charged on January 12 and 13, 1989, were rehired by the Re-
spondent either in February or in March. All but Six are still
employed. Six resigned in May to take another job. As noted
previously, Baker was recalled in March.
Six is a Cherokee Indian and active in Indian affairs. To-
ward the end of February, a meeting was held in Rice’s of-
fice involving Rice, Steffi, Sutorka, Six, and Billy Hayes, an
official of the American Indian Council. The Council is a
private organization to which Six belonged. The purpose of
384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the meeting was to discuss the possible reinstatement of Six.
Rice began the conversation by asking Six what he was
doing with his life. Six replied that he was now drawing un-
employment compensation. Rice commented that the ‘‘union
stuff’’ was all behind them and stated that Bowser was the
only employee who had been fired for soliciting on company
time. Rice then asked Six how he felt about the Union, ex-
pressing to Six that he had heard that he was the top man
in the organizing drive. Rice told Six he would like to know
if that was true. Six said he would rather not discuss the
question of the Union but Rice brought it up two more times.
When Six repeatedly refused to reply, Rice stated that, by
not answering the question, Six had in fact answered the
question. After persistent questioning, Six told Rice outright
that he had signed a union card and was still in favor of the
Union.
As noted previously, Baker had been in layoff status since
late December. After an unfair labor practice charge had
been filed on his behalf in January, Sutorka called Baker on
the phone and asked why he had filed it. Baker replied that
he wanted to know why two other employees who had been
laid off at the same time, Morgan and Mohney, had been re-
called ahead of him. Sutorka replied that they were working
in the shipping and packing section. Early in March, Baker
saw Sutorka in a bar located near the plant and struck up a
conversation. In the course of the conversation, he told
Sutorka that he was not the one who started the union drive.
Early the following week, Baker was recalled to work.
The representation petition filed by the Union on January
13 has not been processed. It is currently blocked by the
pendency of the charges which were filed in this case.
B. Analysis and Conclusions
1. Independent violations of Section 8(a)(1) and
antiunion animus
Rice’s fear that his plant would be unionized was dem-
onstrated repeatedly long before the Union involved in this
case had formed any intention of conducting an organizing
drive. When, in December 1988, the Union began to solicit
cards, Rice lost all restraint and struck back without regard
to any restrictions imposed on his prerogatives by the Act.
As a result, the record herein is replete with acts demonstrat-
ing animus. In instances where the prosecution of these acts
is barred by limitations, they at least constitute evidence of
the Respondent’s hostile state of mind. In most instances,
they constitute independent violations of law.
Over a long period of time, both Rice and Sutorka took
advantage of job interviews to make known their own feel-
ings about unionization and to inquire about the attitude of
the applicants. A job interview is a particularly sensitive oc-
casion; hence questions relating to an applicant’s feelings on
the subject of unionization that are asked on such occasions
have a particularly intimidating and long-lasting impact. This
is especially true when they are accompanied either by
threats or statements of company policy in which a threat is
implicit rather than explicit. The following are independent
violations of Section 8(a)(1) of the Act or examples of
antiunion animus committed by the Respondent:
(a) When Rice interviewed Hockenberry for a job in May
1987, he told Hockenberry that the Company did not need
a union and that Hockenberry would be better off not having
anything to do with a union. When Myers was hired in June
1987, he was asked by Rice how he felt about unions. He
was then told that the Company would not tolerate unions
and that he would be fired if he talked union. When McKin-
ney was interviewed for a job in December 1987, he was
asked by Rice how he felt about unions and was told that
the Company did not need a union at the Renfrew plant. In
March 1988, Six was told by Rice on a similar occasion that
the Company did not need a union, that Rice did not want
one, and, if Six were to start a union, Rice would ‘‘fire his
ass.’’ In February 1988, Gary Bowser was told by Rice that
the Company did not want a union and was warned that, if
he mentioned the word, he would be ‘‘out the door.’’ None
of these remarks can be the basis of a prosecution for an
independent violation of the Act since they were uttered
more than 6 months before the first charge was filed in this
case. However, the Board can and should rely on them in as-
sessing the motives and attitude of this Respondent as they
pertain to other violations of law alleged in the consolidated
complaint, including violations pertaining specifically to Six,
Bowser, and McKinney.
(b) Claypoole was hired in July 1988. He was interviewed
for his job by Rice on July 6, less than 6 months before the
first charge in these cases was filed. When Rice told
Claypoole on this occasion that he would be ‘‘out the g.d.
door’’ if he mentioned unions, Rice threatened a prospective
employee with reprisal for engaging in union activities in
violation of Section 8(a)(1) of the Act.
(c) Wright was hired in August 1988. When Sutorka told
Wright during his job interview that he would be fired if he
had anything to do with unions, Sutorka also threatened a
prospective employee with reprisal for engaging in union ac-
tivities in violation of Section 8(a)(1) of the Act.
(d) Cousins was hired in August 1988. During his job
interview, Rice asked him how he felt about unions. This in-
terrogation was coercive and a violation of Section 8(a)(1) of
the Act.
(e) During a reinstatement interview in February 1989, Six
was repeatedly asked by Rice whether he was the one who
had started the union effort at the plant. When Six declined
to respond, Rice ventured the observation that, by not an-
swering his question, Six had in fact answered the question.
This interrogation was plainly coercive and a violation of
Section 8(a)(1) of the Act.
(f) Rice phoned Freeman late one night and accused him
of being the ring leader of the union movement. At that time,
Freeman had been off work for about 4 months on work-
men’s compensation. Rice then threatened to phone his insur-
ance carrier and have Freeman’s compensation terminated.
The accusation of being a union ringleader, made in this con-
text, is a threat of reprisal for engaging in union activities,
although Freeman in fact had not been engaging in union ac-
tivities. Rice’s further statement carries with it the indicia of
its own coercive character. Both statements violate Section
8(a)(1) of the Act.
(g) Sutorka called Mrs. Goodgasell, Kolich, and Shannon
into his office during the same period of time that Rice had
been denouncing the Union in massed assembly speeches.
The record does not specify what specifically Sutorka asked
them. Sutorka did recount what Mrs. Goodgasell and Kolich
told him. Their presence in his office was not voluntary;
their disclosures of unbounded loyalty to the Company, re-
385CUSTOM BENT GLASS CO.
20 As discussed later on, Samosky was a supervisor within the meaning of
Sec. 2(11) of the Act. In the event that Samosky could be deemed to be only
a rank-and-file employee, Sutorka’s question to him regarding Claypoole’s
union activities and sentiments would be an interrogation by an admitted su-
pervisor of one employee concerning the union activities of another, and thus
a violation of Sec. 8(a)(1) of the Act.
cited by Sutorka, were obviously responses to questions put
to them as to how they felt about the Union, not spontaneous
effusiveness, as the Respondent suggests. I find these replies
to be evidence of coercive interrogation concerning the union
sentiments and expressions of the employees involved. They
were certainly expressions that contradicted those they had
previously evidenced by the signing of union cards. Such in-
terrogations are violations of Section 8(a)(1) of the Act.
Sutorka’s announced reason for summoning these employees
to his office, namely to find out what the Company could
do to mollify the employee dissatisfaction that had led to a
union drive, was a solicitation of grievances with a view to-
ward adjustment, which also violates Section 8(a)(1) of the
Act. I so find and conclude.
(h) In early January, Sutorka mentioned to Gary Bowser
that he had heard rumors that Bowser was soliciting for the
Union. This statement constituted the giving of an impression
of surveillance of union activities, which violates Section
8(a)(1) of the Act.
(i) Sometime during the middle of January 1989, Rice
spoke with Claypoole in his office and asked Claypoole what
he thought about ‘‘this g.d. union bullshit that was going
on.’’ Such interrogation is coercive and violates Section
8(a)(1) of the Act.
(j) On or about January 12, Rice questioned Montgomery
about a union card that Montgomery had signed only a few
hours before. He asked Montgomery if he was nervous and
told him that he should be nervous for signing a union card.
Rice then denounced him as a ‘‘— asshole’’ for having
signed a card. Such interrogation and denunciation is coer-
cive and violates Section 8(a)(1) of the Act.
(k) On or about January 20, Rice asked Colton why he
had been attending union meetings. This statement creates an
impression that Colton’s union activities were under com-
pany surveillance and amounts to coercive interrogation, both
of which violate Section 8(a)(1) of the Act.
(l) In mid-January Rice held a private conversation with
Fair in which he asked Fair if the latter was in favor of a
union. During the course of this conversation, Rice told Fair
that, if a union came into the plant, he would cut production
on the flat glass line. These statements constitute coercive in-
terrogation and a threat to slash production in the event of
unionization, both of which violate Section 8(a)(1) of the
Act.
(m) On or about February 17, during a reinstatement inter-
view, Rice asked Six repeatedly whether he was the em-
ployee who had started the union drive. Such repeated ques-
tioning was coercive and violates Section 8(a)(1) of the Act.
(n) In June 1989, when asked by Sutorka whether
Claypoole had signed a union card, Samosky20 phoned
Claypoole and asked him if he had done so. The interroga-
tion of Claypoole by Samosky was coercive and a violation
of Section 8(a)(1) of the Act.
(o) In August 1988, Sutorka held a private conversation
with Myers in which he told the latter that Rice had phoned
to say that Myers was involved in organizing a union. Such
a statement created the impression that an employee’s union
activities were the subject of company surveillance and is a
violation of Section 8(a)(1) of the Act. Sutorka’s further
statements on this occasion, asking Myers how he felt about
unions and threatening to discharge him or anyone else for
talking union, constitute coercive interrogation and an illegal
threat, both of which violate Section 8(a)(1) of the Act.
(p) Cook, Steffi, and Samosky, all of whom knew that a
union meeting was to take place on the evening of January
11, drove past the firehouse where the meeting was being
held and observed the motor vehicles of certain employees
who were attending. The next day Cook mentioned to em-
ployees that he had seen employee cars parked at the meet-
ing. At one and possibly both of his massed assembly
speeches on January 12–13, Rice announced that he knew
who each and every employee was who attended the union
meeting. The cover story used by the supervisors in question
to explain their presence in the locality of the firehouse at
the time of the union meeting is a tissue-thin pretext. They
had been drinking together in a bar on the outskirts of town
and, for some unexplained reason, had to visit another bar
near the firehouse in order to get more beer. I conclude that,
by engaging in surveillance of the union meeting held at the
Kittanning firehouse on the evening of January 11, the Re-
spondent herein violated Section 8(a)(1) of the Act.
(q) On the afternoon of January 13, Sutorka, Samosky, and
an office clerical employee stationed themselves outside the
plant at a shift change to observe Union Representative
Shinn as he distributed union literature to employees. Such
surveillance of union activities of employees is a violation of
Section 8(a)(1) of the Act.
(r) After Wright was fired, Cook gave him a ride in his
car and told him that he would get his job back when all
of this ‘‘blows over.’’ This statement is the equivalent of
conditioning Wright’s reinstatement to a cessation of union
activities at the plant and is a violation of Section 8(a)(1) of
the Act.
(s) Rice discussed with several employees the question of
withdrawing union cards. He personally obtained from the
Board office in Pittsburgh information as to how to go about
withdrawing union cards and passed it along to company su-
pervisors. Someone at the Kittanning plant drew up a form
for the purpose of assisting card withdrawals and Sutorka
placed copies of the form on the company bulletin board.
Several card signers took these forms, signed them, and
mailed them to the union office in Greensburg. All of this
activity took place against the background of intimidation
and coercion, which has been detailed above. In light of
these factors, I conclude that the Respondent solicited em-
ployees to withdraw their union authorization cards in viola-
tion of Section 8(a)(1) of the Act.
(t) Rice told Brocious in a private conversation that he
would ‘‘take care’’ of Brocious if the latter would abandon
his union activities. While the promise of benefit made to
Brocious was not specific, it does not have to be in order
to be a violation of the Act. I conclude that Rice’s statement
to Brocious on this occasion constituted a violation of Sec-
tion 8(a)(1).
(u) Late in January, Sutorka held a meeting of employees
at Kittanning in which he explained to them the workings of
a pay and classification system that the Respondent had
adopted the previous August. In late January, some employ-
386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ees were not receiving the minimum amount for their par-
ticular classification. Sutorka informed everyone present that,
within the next calendar quarter, all employees would receive
at least the minimum hourly rate prescribed for their job
class. The amended consolidated complaint alleges that this
announcement constituted an illegal promise of benefit.
An employer has the right to make pay adjustments of a
routine and recurring character during the course of an orga-
nizing drive or the pendency of a representation petition
without incurring the onus of an unfair labor practice finding.
From this premise, it follows that it may also lawfully make
announcements respecting such adjustments. In such in-
stances, the General Counsel must show by a preponderance
of the evidence that some additional factor exists which
transforms this action into an unlawful promise of benefit. In
this instance, the pay and classification system was estab-
lished before the onset of the union drive. While the cir-
cumstances surrounding Sutorka’s explanation of this system
is suspicious, these suspicious are insufficient to support a
finding of an unlawful promise of benefit. Accordingly, I
will recommend that so much of the amended consolidated
complaint which alleges that Sutorka’s statements on this oc-
casion constituted an unlawful promise of benefit in violation
of Section 8(a)(1) of the Act be dismissed.
In the course of his talks to the Renfrew and Kittanning
employees in mid-January on the subject of the unionization,
Rice committed numerous independent violations of Section
8(a)(1) of the Act. They are as follows:
(a) By telling employees that he had a list of employees
who had attended a union meeting which was held the pre-
vious evening, Rice created the impression that the union ac-
tivities of employees generally were the subject of company
surveillance, in violation of Section 8(a)(1) of the Act.
(b) By asking Stevenson, an employee in attendance at the
Renfrew speech, what he had thought of the union meeting
the previous evening, Rice also violated Section 8(a)(1) of
the Act by creating the impression that Stevenson’s particular
union activities were the subject of company surveillance.
(c) The Respondent had no rules, either written or oral,
that prohibited employees from soliciting on company time
or property. One will look in vain to find such a restriction
in the Safety Rules or Company Work Rules which were
placed in evidence. Rice’s statement that employees had no
right to organize on company property is a misstatement of
law. It amounts to the promulgation of an overly broad no-
solicitation rule which interferes with protected activities in
violation of Section 8(a)(1) of the Act.
(d) Telling employees that other employees had been fired
for engaging in union activities on company property is an
implicit threat that violates Section 8(a)(1) of the Act.
(e) Telling employees that he had bought off unions and
would do so again is an interference with protected activities
that violates Section 8(a)(1) of the Act.
(f) Telling employees that he would not sign a contract
with a union is an interference with protected activities that
violates Section 8(a)(1) of the Act.
(g) A statement to employees that Rice was not sure
whether he would renew the lease on the Renfrew plant and
that he was thinking of shutting down the flat glass line,
made in the context of a speech replete with more explicit
threats and other violations of the Act, amounts to a threat
to reduce or discontinue operations in the event of unioniza-
tion and violates Section 8(a)(1) of the Act.
(h) By stating to Kittanning employees that he knew who
was trying to ‘‘take him down’’ and that he would get rid
of them, Rice violated Section 8(a)(1) of the Act.
(i) By telling Kittanning employees in the course of his
speech that he had gotten rid of the two main union organiz-
ers, Rice violated Section 8(a)(1).
(j) By threatening to close or reduce the operations of the
flat glass line in the event of unionization, made during the
course of the Kittanning speech, Rice violated Section
8(a)(1) of the Act.
(k) By threatening to withhold employee raises and future
investment in the Company while a union drive was in
progress, Rice violated Section 8(a)(1) of the Act.
(l) By threatening to withdraw his entire investment and
to close the plant in the event of further unionization, Rice
violated Section 8(a)(1) of the Act.
(m) By stating to Kittanning employees that he would not
negotiate with a union, Rice violated Section 8(a)(1) of the
Act.
Additional speech-related violations occurred in mid-Janu-
ary. When Cotton told Cousins that he agreed with him that
Rice was serious about the threats which Rice had uttered in
the course of the Renfrew speech, Cotton violated Section
8(a)(1) of the Act. When Sutorka followed up on Rice’s
speech by telling assembled employees that the Company
followed an open-door policy and that he would be glad to
talk with employees who had questions about the Union,
Sutorka was soliciting grievances with a view toward adjust-
ing them in violation of Section 8(a)(1) of the Act.
2. The discharges of union adherents
In considering the validity of individual terminations or
layoffs which were addressed in the consolidated complaint,
several common factors should be recognized which pertain
to all eight cases and which support a finding of a violation
in each instance. All discharges or layoffs occurred against
a background of repeated and extravagant expressions of
antiunion animus, including statements to the effect that
union supporters would be rooted out and fired. All eight
discriminatees were card signers and all were fired (or laid
off) within the 3-week period when the Respondent was
mounting its counteroffensive to the union drive. Timing was
most suspicious with respect to five employees—Six,
McKinney, G. Bowser, Cousins, and Wright—all of whom
were fired in a span of 2 days following Rice’s receipt of
a letter from Shinn that formally notified him that a union
drive was in progress.
With respect to the question of company knowledge of
who was and who was not a union supporter, certain addi-
tional evidence of a general character should be noted. In
justifying his inquiry to Samosky as to whether Claypoole
had signed a union card, Sutorka testified that ‘‘we needed
to know’’ how Claypoole stood because the Company was
‘‘tallying up cards, as good managers should do.’’ Sutorka
added that he felt that the Company would be very remiss
if it did not have such information so that its officers could
know the position they were in. In testifying about Rice’s
question to him concerning Bowser’s union activities,
Sutorka ventured the opinion that Rice was probably asking
the question because, as one of the owners of the Company,
387CUSTOM BENT GLASS CO.
Rice was entitled to know what all of its employees were
doing. As found above, the Company engaged in surveillance
of a union meeting at the Kittanning firehouse, and Rice an-
nounced to employees most emphatically that he knew who
had signed cards and who had not done so. From these state-
ments I conclude that the Respondent made it its business to
find out who was supporting the Union, and in fact was
aware of the identities of union sympathizers, quite apart
from any specific evidence found in the record relating to
company knowledge of the particular activities and senti-
ments of individual discriminatees.
(a) Steven Six. In the spring of 1988, Six was hired as a
kiln worker at the Renfrew plant. Before coming to work for
the Respondent, Six had worked in a unionized glass factory
and the Respondent was aware of this fact. In his initial
interview, Rice told Six that he did not want a union in the
plant and would ‘‘fire his ass’’ if Six started a union. Six
was, in fact, the employee who set in motion the Union drive
at the Respondent’s plants late in 1988 by calling the
Union’s Regional Director in Greensburg and arranging a
meeting on December 17 in Butler between Shinn, himself,
and two other employees. At that meeting Six signed a union
card. Although he was on layoff status at the time, Six co-
ordinated the activities of card solicitors at the plants with
union headquarters in Greensburg. He attended the organiza-
tional meetings at Butler and the Kittanning firehouse in
early January. It is obvious that Rice had long harbored the
suspicion that Six not only was a union sympathizer but the
man who had instigated the whole union effort, since he re-
peatedly questioned Six on this point when the parties met
in February to discuss Six’s reinstatement. Rice’s suspicion
was well founded.
Six had a serious run-in with the Respondent in early No-
vember after he had returned from sick leave and was placed
on light duty. Notwithstanding this dispute, he was allowed
to return to the plant and to continue working, without fur-
ther incident, until December 10, when he was laid off. At
that time, Six was told that he was being laid off because
of lack of work. He was given no inkling that it was occa-
sioned for any disciplinary reason.
On January 12, more than a month after the layoff had
taken place, Six was discharged. The discharge letter signed
by Cotton recited that the reasons for the discharge related
to the early November incident with Night Supervisor Ferrari
and for violating company rules by soliciting, lecturing, and
continually interrupting other employees at work. In fact, Six
had been back to work following the incident involving
Ferrari for a month at the time of the December 10 layoff.
Between December 10 and the January 12 discharge, he had
done no soliciting, lecturing, or interrupting of employees at
work because he had not even been at the plant. The only
significant event which had occurred during this interim was
the notification sent to Rice by Shinn telling him in writing
about the organizing drive. Cotton’s letter does not mention
the purpose for which Six had been soliciting. As noted
above, the Respondent had no published rule forbidding so-
liciting at the plant. Rice’s testimony that he had personally
contributed to a charitable cause for which Six had been
seeking donations constitutes an implied approval on the part
of Respondent’s management for in-plant soliciting. The pre-
text offered by the Respondent for the discharge of Steven
Six is a flimsy one indeed. It is obvious from this sequence
of events that Six was discharged for union activities in vio-
lation of Section 8(a)(1) and (3) of the Act. I so find and
conclude.
(b) John McKinney. McKinney was a bent glass insulator
who worked principally at the Renfrew plant, although he
was detailed on occasion to Kittanning. During his hiring-in
interview, McKinney was asked by Rice how he felt about
unions. McKinney gave a noncommittal answer. In late De-
cember he discussed the question of unionization with other
employees at the Renfrew plant and attended the small meet-
ing on December 17 in Butler, at which time he signed a
union card. He also passed out cards to several employees
at the plant. Early in January 1989, he disclosed his union
sympathies to Cotton, even going so far as to offer Cotton
a card. The following day he was laid off. Within a week
he was discharged.
McKinney was told on or about January 5 when he was
laid off that the layoff was for economic reasons. Like Six,
he was given no hint that his removal from the payroll was
occasioned by anything other than a temporary downturn in
business. Immediately after he left the Renfrew plant, two
employees from Kittanning, Becker and Stevenson, were
transferred to Renfrew to replace McKinney doing insulating
work. On January 12, Cotton wrote McKinney a discharge
letter, reciting therein a long list of his deficiencies as an em-
ployee, including his failure to follow a supervisor’s instruc-
tions, insubordinate attitude and actions, continually arguing,
poor workmanship, scraps, rejects, and customer dissatisfac-
tion. These matters had not been brought to his attention pre-
viously. At the hearing the Respondent tried to pin on
McKinney the responsibility for a defect in an order of glass
which had been produced, in part, by McKinney at Renfrew,
casually inspected by his supervisor, and then reworked at
the Kittanning plant before being shipped to a complaining
customer. This problem, if indeed it was a problem, was
never brought to McKinney’s attention while he was an em-
ployee. I conclude from this sequence of events, as well as
from the background against which they unfolded, that the
Respondent’s asserted reason for discharging McKinney was
yet another pretext to cover up the fact that it was removing
him from its payroll because of his union sentiments and ac-
tivities. As such, both the discharge of McKinney and the
layoff which preceded it violated Section 8(a)(1) and (3) of
the Act.
(c) Gerald Cousins. Cousins came to work for the Re-
spondent in August 1988, at the Renfrew plant. During his
hiring-in interview he was asked by Rice how he felt about
unions. Having just been discharged from the Navy and
without previous work experience in the private sector, he
said he had no opinion. Cousins signed a union card on De-
cember 21 and attended union meetings on January 7 and 11.
Following Rice’s speech to Renfrew employees, Cousins dis-
closed to Cotton that he had signed a letter to be sent to Rice
indicating that he was a union supporter. This document,
dated January 11, is in evidence. At that time, Cotton told
Cousins that he had nothing to worry about because Rice
liked his work. Cotton was wrong. The next day Cotton
called Cousins into his office and fired him for unsatisfactory
completion of his probationary period and specifically for
taking too many days off. Cotton’s abrupt aboutface upon
learning of Cousins’ union affiliation renders meaningless the
asserted reason given to justify this action. Cousins’ attend-
388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Colton’s card bears the date January 11, 1988, but Colton testified that
the year ‘‘88’’ was placed on the card in error. It should have read ‘‘89.’’
ance record was as well known to Cotton the day before,
when he told Cousins he had nothing to worry about, as it
was the day he discharged Cousins. Accordingly, I conclude
that the Respondent discharged Gerald Cousins because of
his union sympathies and affiliation in violation of Section
8(a)(1) and (3) of the Act.
(d) Gary Bowser. Bowser was employed at the Renfrew
plant as a glass cutter. During his job interview with Rice
in February 1988, the latter told Bowser that, if the word
‘‘union’’ was ever mentioned at the plant, Bowser would be
out the door. Bowser signed a union card on December 29
and attended the January 7 and 11 union meetings. Bowser
also solicited a few cards from employees. Bowser admitted
to Sutorka that he favored the Union but he did not specifi-
cally reveal that he had signed a card. The day after he had
this conversation Sutorka fired him. He told Bowser that he
was firing him for soliciting union cards and campaigning for
a union on company time and property. Bowser denied doing
any of these things on company time or property and asked
Sutorka if he had a witness to back up his allegation. Sutorka
said that he did, but he refused to reveal the identity of the
witness.
In this instance the Respondent discharged an employee
assertedly for union activities that went beyond the bounds
of permissible campaigning. As noted previously, the Com-
pany had no valid no-solicitation rule. Indeed, it did not have
a no-solicitation rule of any kind, so when Bowser was dis-
charged, he was discharged not only for violating a nonexist-
ent rule but for violating an asserted rule that was so broad
that the Respondent was not at liberty to act upon it. Accord-
ingly, the discharge violated Section 8(a)(1) and (3) of the
Act.
(e) James A. Wright. Wright was a flat glass cutter at the
Kittanning plant. During a job interview in August 1988, he
was told by Sutorka that, if he had anything to do with
unions, the Company would get rid of him. Wright signed
a card on December 29 and later attended one or more union
meetings, including the one which Cook, Steffi, and
Samosky spied on. He also solicited cards at the Kittanning
plant. On January 13, Wright was discharged by Sutorka,
who accused him of violating company rules by campaigning
for a union on company time and for making threats. Later,
the Respondent changed the latter allegation to the making
of ‘‘terroristic threats.’’ Sutorka refused to be specific about
these matters in talking with Wright at the terminal inter-
view.
It came to light at the hearing in this case that the ‘‘terror-
istic threat’’ upon which Sutorka relied was ostensibly a re-
port from employee Dennis Plaisted that Bowser had threat-
ened to damage Plaisted’s car. However, Plaisted testified
that Bowser had uttered no such threat at all. He recalled a
statement which Bowser made in the presence of several em-
ployees that the Union would ‘‘get’’ employees who refused
to sign cards but described this statement as ‘‘blowing
smoke.’’ Accordingly, the unlawful or unprotected union ac-
tivity which formed the basis upon which Wright was dis-
charged was wholly unsubstantiated and pretextual. The dis-
charge violated Section 8(a)(1) and (3) of the Act.
(f) Charles Colton. Colton was a laminator in the flat glass
section at Kittanning. He was hired in the summer of 1988,
laid off on January 20, 1989, and obtained another job about
3 weeks after the layoff. He was never recalled to work by
the Respondent. Colton attended the union meetings of Janu-
ary 7 and 11 and signed a card on January 11.21 Rice asked
him in the course of a private conversation whether there
was anything wrong with the Company and whether there
was anything Rice could do to improve things. Colton re-
plied in the negative. He also told Rice that he was going
to a union meeting. When Rice asked why, Colton simply re-
plied that he wanted to get both sides of the story.
Rice was laid off without warning on January 20, osten-
sibly because of lack of work; however, the Respondent
hired another employee within 5 days following the layoff
instead of recalling Colton. Moreover, there were several em-
ployees junior to Colton who remained on the payroll at the
time of his layoff. Respondent has taken two positions with
respect to its practice regarding seniority. It presented evi-
dence to the effect that, in making layoffs, it does not follow
seniority. On the other hand, it also presented evidence that
it does in fact follow seniority with respect to people of
equal skill. Since most of the members of the bargaining unit
are employees of short duration who are paid at rates sug-
gesting that they are for the most part unskilled, it is difficult
to see why seniority, under this standard, is not a universal
practice at both plants. No evidence was adduced to indicate
why employees with less seniority than Colton were retained
while he was laid off. In light of these factors, as well as
the pervading factor of animus discussed above, I conclude
that Colton was discharged because of his union sympathies
and activities in violation of Section 8(a)(1) and (3) of the
Act.
(g) John Baker. Baker is a laminator in the flat glass sec-
tion of the Kittanning plant. In late December 1988, he
passed out several union cards at the Kittanning plant to
other employees and signed a card on December 29. On the
following day he was laid off along with seven other em-
ployees, all of whom received identical letters, which read:
It is very unfortunate at this time that Custom Glass
Corporation must announce a short term layoff for a
few employees. We are experiencing an annual decline
in orders. We expect this to be only for approximately
2–3 weeks. All laid off employees will be given top
consideration for recall.
The letter, dated December 30, was signed by George
Sutorka as vice president for Operations. By this time a ma-
jority of the authorization cards submitted by the Union in
this case had been obtained from card signers.
The General Counsel does not challenge the Respondent’s
contention that the layoff, as such, was economically moti-
vated. He does contend that the inclusion of Baker among
the eight who received layoff notices was discriminatorily
motivated. In support of this contention, the General Counsel
notes that Mohney and Morgan, two junior employees, were
recalled early in January while Baker was left in layoff status
until late March, during which time an unfair labor practice
charge had been filed on his behalf.
While Baker’s case is not as strong as the other discrimi-
natory discharges found herein, Custom Bent Glass is not a
Respondent who deserves the benefit of any doubt. It not
only threatened to discharge union supporters; it was also
389CUSTOM BENT GLASS CO.
22 While the Respondent placed evidence in the record suggesting a down-
turn in sales during December 1988, it never explained how this temporary
decline translated itself into eight layoffs rather than some lesser figure. Three
months later, it began a hiring program which put 16 new employees on its
payroll within a space of 60 days.
23 The General Counsel, whose responsibility it is to prosecute this consoli-
dated amended complaint, does not concede that Pagliari was a managerial
employee and contends that Pagliari’s discharge violated the Act. According
to the Charging Party, both Pagliari and his replacement, Rick Moses, were
managers and, as such, their names should not be included in any eligibility
list used to determine the Union’s majority status. The Charging Party is thus
forced to concede that the union authorization card which Pagliari signed on
December 21, 1988, should not be counted toward establishing the Union’s
majority status. While I agree with the resulting effect of the Charging Party’s
position, I do so for different reasons which are discussed above and in other
parts of this decision.
prompt to fire 5 active proponents within a span of 48 hours
following the Union’s first notification letter, justifying its
actions by pretexts which were transparently false. By the
time the December 30 layoff had taken place, the Union
drive was well under way. Baker was an active part of it,
having distributed cards to five or six Kittanning employees
at the plant. An employer who resorted to spying on the
union activities of its employees and who made a public pro-
fession of its practice and policy of finding out how each of
its employees stood on the question of unionization could not
have missed the fact that Baker was soliciting cards at the
Kittanning plant during late December. Accordingly, I con-
clude that Baker was included among the eight laid off em-
ployees on December 30 for discriminatory reasons and that
his layoff violated Section 8(a)(1) and (3) of the Act.22
(h) Fred Pagliari. Pagliari was hired in September 1988,
and employed by Saxonburg with the title of manager. His
nominal supervisor was Saxonburg President John Rice. For
this job Pagliari was paid $6 an hour. The Respondent con-
tends that, as a managerial employee, Pagliari does not enjoy
the protections of the Act and that the portion of the com-
plaint herein relating to his discharge on January 17 should
be dismissed. The Charging Party agrees with this conten-
tion.23 The Respondent further contends that Pagliari was
discharged for absenteeism and for poor recordkeeping.
As noted above, Saxonburg was established to make dis-
count purchases of items used in glassmaking from manufac-
turers who would not sell at such prices directly to another
manufacturer, such as Custom Bent Glass. Saxonburg then
resold to Custom Bent Glass, through bookkeeping entries
and intercorporate payments, any items it purchased at dis-
count. Saxonburg also purchased janitorial supplies. Any
items that Custom Bent Glass did not require immediately
were sold by Saxonburg to outside customers at markups es-
tablished by John Rice. These markups could be revised, to
a limited degree, by Pagliari. Saxonburg’s inventory and op-
erations were conducted in a portion of the Renfrew plant
that had a separate entrance from the Custom Bent Glass en-
trance. Pagliari kept books and inventory accounts, made
bank deposits, drove a pickup truck, and made deliveries to
Saxonburg’s outside customers. He performed small inciden-
tal chores for Custom Bent Glass, such as tabulating time-
cards of Renfrew employees and running errands back and
forth between Kittanning and Renfrew. The jobs performed
by Pagliari were unskilled or semiskilled, and for his services
he was modestly paid. It has not been argued that he was
a supervisor within the meaning of the Act because he had
no one to supervise. He also had no one and nothing to man-
age. The same functions were performed by Rick Moses, his
replacement, who was hired on October 24, 1988. Moses
worked, for the most part for Cotton, as a Custom Bent
Glass employee doing clerical work until early January,
when he was told he was being trained in the Saxonburg op-
eration to replace Pagliari, apparently without Pagliari’s
knowledge. I conclude that both Pagliari and Moses were,
and are, employees within the meaning of Section 2(3) of the
Act and entitled to the benefits and protections of the Act.
It does not follow from this conclusion that Pagliari and
Moses were, or are, members of the same collective-bargain-
ing unit as the production and maintenance workers of Cus-
tom Bent Glass.
Pagliari signed an authorization card that had been pre-
sented to him by McKinney on December 21. There is no
evidence that he engaged in any other union activities. About
a month later he was discharged for absenteeism and for fail-
ing to maintain proper records. While there is suspicion that
Pagliari may have been discharged and replaced because of
his union activities, this suspicion does not rise above the
level of suspicion that might be attached to any adverse per-
sonnel action experienced by any union adherent in the Re-
spondent’s plants during this period of time. It does not
amount to a prima facie case. Accordingly, I will recommend
that so much of the amended consolidated complaint which
alleges that Fred Pagliari was discharged for engaging in
union activities be dismissed.
3. The Union’s majority status
(a) The General Counsel alleges that all full-time and reg-
ular part-time production and maintenance employees em-
ployed at the Renfrew and Kittanning plants, with the usual
exclusions, constitute a unit appropriate for collective bar-
gaining. While the Respondent sharply contests the unit
placement of several individuals, it has not seriously con-
tested the unit description and has not provided any alter-
native description that it believes to be more appropriate.
Since the description found in paragraph 22 of the amended
consolidated complaint is a conventional collective-bargain-
ing unit, I find that it is appropriate in this case.
(b) The General Counsel, the Charging Party, and the Re-
spondent entered into a stipulation of fact found on pages 16
and 17 of the Transcript in which they agreed that some 41-
named individuals were on the Respondent’s payroll on Jan-
uary 12 and 13, 1989, and should be properly included in
any determination of the Union’s majority status. The name
of a 42nd individual, Rick Moses, was conditionally agreed
to, depending upon whether Fred Pagliari, a disputed card
signer, should ultimately be included. The parties further
stipulated that an additional 25 individuals, whose names are
recited on page 19 of the Transcript, are persons whose eligi-
bility on the dates in question is in dispute and that no other
people should be included on any eligibility list other than
the agreed upon 41 employees and some or all of the other
25 (plus Moses). Certain arguments made by the parties in
their briefs are inconsistent with these stipulations and some
findings by me may arguably be inconsistent with the stipu-
lations of inclusion or exclusion. However, I will not look
beyond or behind these stipulations in determining eligibility,
and I will not permit any party to renege on their stipulations
now that the record is closed.
390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 The same finding was made with respect to Baker. However, his name
appears among the 41 employees whom all parties agreed should be included
on an eligibility list for purposes of determining majority status. Since
discriminatee Colton was on the payroll on January 12 and 13, his name also
appears among the 41 eligible employees contained in the stipulation, regard-
less of whether or not his discharge is deemed to be unlawful.
25 The January 19 payroll contained 49 names. This number does not in-
clude the six names on a separate payroll sheet which Rice referred to as
‘‘overhead.’’ Notwithstanding the fact that the production and maintenance
payroll had only 49 names, the Respondent is arguing in this case that the
appropriate collective-bargaining unit included 68 members.
26 In the course of the hearing it came to light that Nicholas W. Valerio
wore a white uniform shirt. In January 1989, Valerio was a working group
leader at the Renfrew plant who, from time to time, had two or three employ-
ees in his group. The parties stipulated at the hearing that Valerio was properly
a member of the bargaining unit, so I will not look behind this stipulation.
(1) I have already found that Six, McKinney, G. Bowser,
Cousins, and Wright were discharged in violation of Section
8(a)(1) and (3) of the Act.24 All of their names were nec-
essarily found on the payroll period ending January 12. G.
Bowser, Cousins, and Wright were discharged on January 13,
so their names were necessarily on the payroll for the period
ending January 19. Apart from these considerations, since
they were wrongfully removed from the payroll by the un-
lawful acts of the Respondent, their names should and will
be included in the eligibility list and their cards will be
counted toward the Union’s majority status, unless those
cards should be deemed invalid for some other reason. John
Kinkel & Son, 157 NLRB 744 (1967); Brunswick Meat Pack-
ers, 164 NLRB 887 (1977); and Wisconsin Bearing Co., 193
NLRB 249 (1966).
(2) Neither Pagliari nor Moses, the trainee who took his
place, did any production or maintenance work for Custom
Bent Glass. They bought and sold items for Saxonburg and
did the paperwork and delivery work associated with that ac-
tivity. The name of Rick Moses was not on the production
and maintenance payroll submitted by the Respondent for
January 12, 1989, but was listed on a separate payroll, which
Rice referred to as ‘‘overhead.’’ I conclude that neither of
these individuals had a community of interest with the pro-
duction and maintenance employees of Custom Bent Glass,
so their names should be excluded from any eligibility list
prepared for that bargaining unit. As a result, Pagliari’s au-
thorization card cannot be used in any determination of ma-
jority status.
(c) Among the Respondent’s production unit25 of approxi-
mately 50 individuals there are 18 people whom the Re-
spondent has indiscriminately labeled as group leaders. Sup-
posedly the term ‘‘group leader’’ designates a working indi-
vidual who is the head of a team that is assigned to perform
a recurring task. The inclusion of all of these individuals in
the bargaining unit would mean that, in January 1989, the
Respondent had only three operating supervisors—Cook,
Steffi, and Colton—to oversee nearly 50 employees working
in two plants on two or more shifts. Such a ratio of super-
visors to rank-and-file employees is plainly absurd, especially
in light of the multishift and separate plant considerations in-
volved here.
A designation as group leader does not entitle a leader to
any additional pay. Some nonleaders who were given this
title were given no additional compensation until the entire
plant was reevaluated for pay purposes during the next cal-
endar quarter. There are group leaders who have groups that
contain 8, 10, or more employees. Other groups have only
one or two members. These groups fluctuate both in number
and in composition. Some members of a group may have an
hourly rate that is higher than their group leader because the
group member has longer service with the Respondent than
his leader. Former employee Colton, who worked at the plant
between August 1988 and January 1989, testified that he had
never heard of the title ‘‘group leader’’ during his employ-
ment with the Respondent. Samosky, a comparatively long-
term employee and one whom the Respondent designated as
a group leader, testified that the term is not actually used at
the plant in the course of normal conversation or in the
course of its operations. He had never seen the term in writ-
ing on any company document and regarded the designation
as simply one that was taken for granted as applying to cer-
tain employees in the plant who head a department and ac-
cept the responsibility for keeping that department running.
I regard the term ‘‘group leader’’ as one which the Respond-
ent coined for purposes of this litigation. The Respondent ar-
gues that all group leaders are rank-and-file employees who
are part of the bargaining unit and whose names should be
included on any eligibility list used to determine the Union’s
majority status. The other parties acknowledge that some em-
ployees whom the Respondent has designated as group lead-
ers are properly a part of the bargaining unit but insist that
others should be excluded as supervisors. I have concluded
that this label has little or no bearing on the supervisory
issues in this case and will give it little or no weight in mak-
ing such analyses. The term certainly does not describe a sin-
gle class of persons who should all be treated alike for eligi-
bility purposes.
Another factor came to light during the course of the hear-
ing that bears upon individual determinations of supervisory
status. The Respondent provides all employees, both super-
visory and nonsupervisory alike, uniform shirts to be worn
at the plant. These shirts are the property of a rental com-
pany; they bear the company name and the name of the em-
ployee to whom they are provided sewn on a label over the
pocket. Uniform shirts are either white or brown. Supervisors
such as Cook, Steffi, and Cotton wear white shirts; rank-and-
file employees wear brown shirts (sometimes referred to as
tan shirts). Some so-called group leaders wear white shirts
and others wear brown shirts. While Rice and other wit-
nesses fudged and hedged in their testimony when asked
about the distinction between a white shirt and a brown shirt,
Sutorka and other company witnesses admitted, when
pressed, that the color scheme was designed to designate au-
thority on the part of those few who were given white shirts
to wear. I conclude that a white uniform shirt was and is an
indicia of supervisory authority, perhaps not a conclusive or
categorical one but a demonstration to all employees that the
Respondent was and is holding out the individual wearing it
is an individual who possesses authority that others do not.
It does not follow from this conclusion that all brown-shirted
employees are not supervisors, since other factors establish-
ing supervisory authority may exist in specific cases, which
would place them in that category, notwithstanding their lack
of sartorial eminence.26 The following employees or former
employees, except for Ron George, should be excluded from
the bargaining unit on the critical date.
(1) Jerry Samosky. Samosky is styled by the Respondent
as a group leader in the shipping and receiving department
391CUSTOM BENT GLASS CO.
27 I discredit Rice’s testimony that he did not authorize Plaisted to sign let-
ters as personnel manager and that such correspondence was just a mistake
on Plaisted’s part. This was one of several instances in which Rice tried to
explain away entries on company records which flatly contradicted his theory
of the case by labelling such entries as ‘‘mistakes.’’
at Kittanning. His hourly rate is $6.25 an hour, which is ap-
proximately 75 cents to $1 more than other members of his
group receive. Samosky wears a white shirt. The shipping
and receiving department crates glass and loads it on to
trucks. Samosky spends a great deal of time performing these
functions with other members of the shipping and receiving
department. However, he has a desk in the same enclosed
area where Cook maintains his desk. Samosky does not hire,
fire, or discipline employees, although he does direct them
in the performance of their duties and makes assignments to
particular employees based upon his assessment of their
abilities. When his department works overtime, he selects the
individual to whom overtime is offered. He has occasionally
excused employees so they may leave the plant for reasons
of illness or for legitimate reasons. Cook testified that, in
January, he had some 27 employees under his supervision.
This number included Samosky and the shipping and receiv-
ing department if Samosky is not deemed to be a supervisor.
This ratio clearly suggests that there were one or more other
individuals among this group who were also supervisors
within the meaning of the Act. Based on these factors, I con-
clude that Samosky was and is a supervisor within the mean-
ing of the Act.
It should also be noted that Samosky, along with Sutorka,
engaged in surveillance of Shinn’s distribution of union lit-
erature in front of the plant, participated with Cook and
Steffi in spying upon a union meeting, and obtained informa-
tion from Claypoole which Sutorka requested concerning
whether Claypoole had signed a union card. Such activities
undertaken on behalf of the Respondent constitute Samosky
as its agent for the purpose of dealing with union-related ac-
tivities of employees. They establish a conflict of interest be-
tween Samosky and members of the bargaining unit, which
would render him ineligible to be a part of the bargaining
unit, regardless of his supervisory status.
(2) Scott Geibel. Geibel has worked for the Respondent for
about 4 years and is now a group leader at the kiln in
Kittanning. For most of his career with the Respondent he
worked at Renfrew. He receives $7 an hour, a rate consider-
ably above the scale earned by the rank-and-file employees,
including the other kiln workers. Geibel does not hire, fire,
or discipline; however, he does evaluate new employees and
reports to higher management their suitability for employ-
ment. Geibel wears a white shirt whenever he wears a com-
pany uniform, but he testified that he often wears his own
clothing to work because of the temperature near the kiln.
Geibel is empowered to obtain the services of employees
outside his immediate group who work elsewhere in the
plant if his group should require their services on a short-
term basis. In January, Geibel worked at the Renfrew plant.
Before that time, he and Cotton were the only persons at
Renfrew who wore white shirts. Geibel normally arrived at
the Renfrew plant an hour before any management employ-
ees did, ostensibly to assist with daily startup operations.
During that period of time he was the highest ranking com-
pany official on the premises. I conclude from these factors
that Geibel is a supervisor within the meaning of the Act and
not a member of the bargaining unit.
(3) Thomas Higgins. Higgins has worked for the Respond-
ent for about 4 years, first at Renfrew and later at Kittanning.
He earns $7.75 an hour, an amount that far exceeds the pay
rate of both Geibel and Samosky, as well as most, if not all,
rank-and-file employees at both plants. Higgins wears a
white uniform shirt. He is a skilled pattern maker and has
been employed at that task at both plants. He does not hire,
fire, or discipline employees, nor does he evaluate their indi-
vidual performances. He was a group leader at Renfrew on
the midnight shift and is now a group leader on the day shift
at Kittanning, having 2–4 employees in his group. When he
worked the midnight shift at Renfrew, he was the highest
ranking person at that plant during those hours. I conclude
that Higgins is a supervisor within the meaning of the Act
and not a part of the Respondent’s bargaining unit.
(4) Alfred M. Ferrari. Ferrari has worked for the Respond-
ent at Renfrew for about 4 years and has been the leader of
a group that includes two or three other people. He earns
$6.20 an hour, a considerably higher rate than the other
members of his group. Ferrari wears a brown uniform shirt.
Like most group leaders, he spends most of his time in pro-
duction work. During the midnight shift, Ferrari is now the
highest ranking employee at the Renfrew plant and is respon-
sible for the safety of the plant. While he normally does not
do so, he has granted excused absences to employees on the
night shift for legitimate reasons. On occasion, he has called
employees to work to fill in for absentees and was told that
he had authority to do so. However, he usually checks with
Rice to see if the job being processed is of such an emer-
gency nature that it has to be completed immediately. I con-
clude that Ferrari is a supervisor within the meaning of the
Act and is not a part of the Respondent’s bargaining unit.
(5) Dennis Plaisted. Plaisted was hired in September 1987
and performed a variety of jobs until his layoff in June 1989.
Plaisted holds a bachelor’s degree in business administration
and was paid $5.50 an hour. He had a desk in the enclosed
office also occupied by Cook. His name appeared on the
‘‘overhead’’ or office payroll, which the Respondent submit-
ted into evidence. Plaisted spent about 25 percent of his time
on the production floor labelling crates and preparing pack-
ages for shipment through UPS. The rest of his time was
spent in clerical work and in running errands, e.g., picking
up mail, serving as intraplant courier, making daily bank de-
posits, or in doing accounting. Rice designated Plaisted as
personnel manager in the spring of 1989. In that capacity, he
sent out correspondence to employees over his own signature
calling himself personnel manager.27 I conclude that Plaisted
was not a production or maintenance employee but a mana-
gerial employee and, at some phase of his career, a super-
visor within the meaning of the Act. As such, he was never
a member of the bargaining unit.
(6) John A. Howryla. Howryla came to work for the Re-
spondent in February 1988. He has a bachelor’s degree in
engineering and does quality control work. He was initially
paid $7.50 an hour but his compensation was converted into
a salary of approximately $22,000 in June 1989 when the
Respondent hired another engineer in a salaried position and
sought to employ both men on an equivalent basis. In Janu-
ary 1989, his name was listed on the Respondent’s office or
‘‘overhead’’ payroll.
392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Howryla reported directly to Rice. He has a desk in an of-
fice in the Kittanning plant, which he shares with Steffi, an
admitted supervisor. However, he works from time to time
at Renfrew and has some limited discretion as to whether to
report to the Kittanning or the Renfrew plant on any particu-
lar day. On one occasion, Howryla supervised the operation
of the Renfrew plant for a day when Plant Manager Cotton
was absent. Howryla does not punch a timeclock but signs
an attendance sheet that he submits to Rice. He wears a
white uniform shirt indicating supervisory authority. As a
quality control inspector, Howryla inspects glass, checking it
against industry, customer, and company specifications. He
can reject any item that does not meet these specifications.
He cuts glass on occasion but this is an incidental part of
his duties. He compiles kiln records and checks paperwork
submitted by various group leaders. On one occasion, he was
asked to investigate McKinney’s work as part of the inves-
tigation that led to McKinney’s discharge. It is clear that
Howryla has no community of interest with production and
maintenance employees and is a supervisor within the mean-
ing of the Act. As such, he is not a part of the Respondent’s
bargaining unit.
(7) The December 30, 1988 layoffs. As noted previously,
the Respondent laid off eight employees on December 30,
1988. The parties have agreed that two of these employees,
Baker and Dean Crawford, both of whom were recalled in
March, should be included in the bargaining unit. They also
agreed that Morgan and Mohney, both of whom were re-
called on January 9, 1989, should be included. I will not
look behind these stipulations. The Respondent contends that
the other four who were laid off on this occasion should also
be included in the unit. I disagree.
None of the four December 30 layoffs whose inclusion is
at issue was on the payroll for the periods ending January
12 or 19. Eligibility determinations are normally made by
reference to the payroll for the week that includes the elec-
tion or, in this case, the designated date for determination of
majority status. In this case, the dates in question are January
12 or 13. Because the names of these four individuals—
Rearick, Whitehair, Sheehan, and Shields—were not on the
relevant payrolls, the Respondent shoulders the burden of es-
tablishing why they should be included in the unit for pur-
poses of determining the Union’s majority status. The letter
given to each of these employees on December 30 recited
that the layoff was ‘‘short term’’ and was occasioned by a
decline in orders. It further stated that the Respondent antici-
pated that the layoff would be for only 2 or 3 weeks and
that all laid-off employees would ‘‘be given top consider-
ation for recall.’’
As discussed, supra, the Respondent has an ambivalent
policy respecting seniority. Telling employees that they
would be given ‘‘top consideration’’ for recall does not guar-
antee them anything in terms of recall. Moreover, when
Sutorka spoke with each employee at the time of the layoff,
his verbal message was by no means as sanguine as the
statement in the letters they received. Sutorka told them that
‘‘hopefully’’ the layoff was not permanent and that they
would be recalled ‘‘if orders picked up.’’ When Baker asked
Sutorka how long he would be laid off, Sutorka said maybe
two or three weeks but that there was no guarantee. Sutorka
testified at the hearing that he really did not know on De-
cember 30 how long the layoff would last. Rice testified that
he thought that the prospects for future employment con-
tained in the letter which Sutorka had given to the eight em-
ployees on December 30 was overly optimistic as far as date
of recall was concerned. Morgan and Mohney were recalled
on or about January 9. Crawford and Baker were recalled in
March. Rearick came back in July, Shields and Sheehan
never returned, and Whitehair returned in July after he had
been laid off another job.
The Respondent asserts that Rearick, Whitehair, Shields,
and Sheehan should be included in the unit as it should be
constituted on January 12 or 13, 1989, because, on those
dates, they had a reasonable expectancy of recall in the near
future, a test the Board has used in such cases as Atlas Metal
Spinning Co., 266 NLRB 180 (1983), and Weather Vane
Outwear Corp., 233 NLRB 414 (1977). This test is applied
within a timeframe of the election, or, in this case, the date
on which majority status is to be determined. Tomadur, Inc.,
196 NLRB 706 (1972). However, evidence of events follow-
ing the date of the election (or determination of majority sta-
tus) is certainly relevant in revealing the situation which ex-
isted as of the critical date. While the totality of the evidence
in this case is unclear as to when, if ever, these employees
might actually be recalled, an additional factor emerges from
record evidence that adds another factor to an evaluation of
their status, namely a clear indication that each of these four
employees had abandoned their employment with the Re-
spondent following the December 30 layoff and, having done
so, demonstrated that they had no continued interest in the
terms and conditions of employment at the Respondent’s
plants. Accordingly, they should be excluded from the bar-
gaining unit because they had constructively quit their jobs.
Whitehair was hired by the Respondent as a kiln worker
in September 1988, and had been employed about 3-1/2
months at the time of the layoff. Sheehan and Shields had
been employed less than a month when they were laid off.
Sheehan and Shields were classified as general laborers. Be-
tween the layoff and July 1989, there has been no commu-
nication between the Respondent and any of these employ-
ees. Sheehan and Shields lived in the same boarding house
in Ford City, Pennsylvania, a suburb of Kittanning. Rice as-
serts that, late in January, an effort was made to contact both
of them but they had moved and had left no forwarding ad-
dresses. Neither ever made any effort to contact the Re-
spondent to inquire about the availability of employment and
no further effort was made by the Respondent to contact
them. Rice testified that he thought Sheehan was in West
Virginia and did not know how to get in contact with him.
He also thought that Shields had returned to West Virginia.
In January he had reportedly left word with their landlord
asking them to get in touch with the Company, but neither
has ever done so. Both obviously abandoned what was for
them short term employment and should not be considered
part of the bargaining unit.
Rice testified that he knew of no effort on the part of the
Respondent to contact Whitehair and had heard that
Whitehair was working in Oakmont, a city in the general vi-
cinity of Kittanning. Whitehair apparently returned to the Re-
spondent’s payroll while the hearing in this case was in
progress. Later in the proceeding, Whitehair took the stand
and testified that, despite the fact that he had maintained the
same post office box during his absence from the plant, no
attempt had been made by the Respondent that he was aware
393CUSTOM BENT GLASS CO.
of to contact him between December 1988 and July 1989.
During that interim, Whitehair had worked for Kelly Tree
Service, a job which he characterized as temporary, and then
for two other employers. After he had been laid off by his
most recent employer, Sink Sales and Rental Company, he
came to the company office and asked Rice if he had any
jobs. Rice rehired him. This sequence of events demonstrates
that, when he was laid off, Whitehair abandoned his employ-
ment and sought work elsewhere. He did not return to the
Respondent’s plant until he had tried several other jobs that
did not work out. When Whitehair returned in July, his re-
turn could only be characterized as the rehiring of an em-
ployee who had constructively quit. Accordingly, I would not
include him in the bargaining unit in January 1989.
Rearick was hired in September 1988 as a maintenance
man and was also laid off on December 30. On February 6,
he moved from the residence he had occupied while working
for the Respondent and also discontinued his telephone serv-
ice. Rearick did not work from December 30 until his return
to the Kittanning plant in July while the hearing in this case
was in progress. During this period of time he had regained
custody of his children, so he simply wanted to stay home
and spend some time with them. In July, he came back to
the plant, told Rice he was ready to go to work, and was
rehired the following day. Rearick’s absence from the Re-
spondent’s payroll in January and for several months there-
after was not the result of layoff but because of a choice he
had made not to work. As such, he constructively quit his
job and was later rehired after he felt that he had spent
enough time at home and was ready once again to go to
work. Accordingly, he should not be included in the bargain-
ing unit as of January 1989.
(8) Tim Singer. Tim Singer was hired in December 1987,
as a maintenance man and left the Respondent’s employment
in December 1988. He was not on the payroll on the deter-
minative dates in this case nor has he been regularly em-
ployed by the Respondent since that time. Respondent argues
that he should be included in the bargaining unit because he
was on a leave of absence. Respondent opposed Tim Sing-
er’s application for unemployment compensation on the basis
that he had quit his job. In a letter to the Pennsylvania Office
of Employment Security, dated February 14, 1989, Respond-
ent’s assistant administrative manager, Brian J. Davis, told
Pennsylvania authorities that Timmy L. Singer had ‘‘volun-
tarily quit his job at Custom Bent Glass Company on De-
cember 28, 1988, for another job. Timmy understands that he
can return to work whenever he desires, but he chooses not
to come to work. Also, he still owes the Company money
from an advance.’’ Sometime in the spring of that year,
Timmy Singer paid off his outstanding debt to the Respond-
ent by working several Saturdays but this has been the extent
of his connection with the Respondent since December 28.
The Respondent is not at liberty to avoid paying unemploy-
ment compensation by asserting to a public agency that an
employee has quit his job and then to achieve some benefit
in a Board proceeding by claiming that its letter to the unem-
ployment office was wrong and that the employee in ques-
tion was simply given a leave of absence to attend to family
problems. Even granting Rice’s false and groundless factual
premise that Singer was on a leave of absence, the so-called
leave of absence was not scheduled to end at any time in the
forseeable future and had not come to an end many months
later when the record in this case closed. Accordingly, I will
exclude Timmy Rice from the bargaining unit on the critical
dates involved in this case.
(9) Tom Singer. Tom Singer, the brother of Tim Singer,
was a kiln worker who was hired in April 1988. According
to a document entitled ‘‘Work History for the Period Be-
tween December 5, 1988 and April 1, 1989,’’ prepared by
the Respondent and submitted in evidence. Tom Singer was
laid off on December 8, 1988, and has not worked for the
Respondent since that date. The notice posted at the Renfrew
plant by Cotton stated that the layoffs being made were ‘‘in-
definite.’’ There is no evidence in the record that he was
ever told if or when he might ever return to work. Rice testi-
fied that the layoff was for lack of work. Tom Singer’s name
does not appear on the payroll for either of the critical dates
in this case. The Respondent has been unable to reach Tom
Singer and does not know where he is located. His sister,
Carol Lynn Singer, is an employee at the plant. Apparently
she told Rice that both Tom and Tim Singer had left the
Kittanning area and she was unaware of their location. Their
mother apparently reported that they had left Pennsylvania
and was in Tennessee or Mississippi. Rice testified that he
was interested in locating the Singers because they had not
turned in their uniforms and the uniform company was con-
tinuing to charge the Company for them.
It is not apparent from the record or from the brief why
the Respondent thinks that Tom Singer should be included
in the bargaining unit. There is nothing in the record to indi-
cate whether Tom Singer was told, at the time of the layoff,
when, if ever, he might be called back to work and there is
nothing in the Respondent’s employment history from which
any such facts could be inferred. The fact that there has been
no communication between the Respondent and Tom Singer,
as well as his departure from the state and his refusal over
a period of many months to respond to requests to contact
the Respondent, make it abundantly clear that he abandoned
his employment with the Respondent and should be treated
as a constructive quit. Accordingly, I will exclude him from
the bargaining unit.
(10) Robert Hiles. Hiles was employed in September 1988,
as a glass cutter at the Renfrew plant. During his employ-
ment with the Respondent he had some serious domestic
problems, which resulted in an arrest for criminal trespass.
Hiles was absent from the Respondent’s payroll from De-
cember 8, 1988, until January 25, 1989. He was thereafter
laid off and recalled to work. Respondent has a rule that, if
a probationary employee misses three consecutive days of
work without an excuse, he is automaticaly terminated. On
December 8, Hiles received a certified letter from Brian
Davis, who was handling personnel matters for the Respond-
ent at that time, which stated:
Effective this date, your employment with Custom
Bent Glass Co., Inc. has been terminated. Our reason
for taking this action is because you missed 3 consecu-
tive days and are still a probationary employee.
If you desire consideration for re-employment, you
must submit an application for employment.
On its face, this letter would appear to be conclusive proof
that Hiles had been severed completely from the Respond-
ent’s work force on December 8 and that his reappearance
394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 Students who work during their summer vacations and then return to
school in the fall are not eligible voters in Board elections. See Connecticut
Foundry Co., 247 NLRB at 1517, and cases cited therein at fn. 5.
on the payroll on January 25 was as a result of being re-
hired or re-employed. Accordingly, he would not have been
part of the bargaining unit on the critical dates which oc-
curred during his absence.
As with other efforts at unit packing, the Respondent
claims that its own records pertaining to Hiles were in error
and should be ignored, arguing that the eligibility of Hiles
should be determined instead on the basis of self-serving tes-
timony, which contradicts a contemporaneous letter effectuat-
ing the discharge. According to Hiles, he told Rice that he
needed a leave of absence to take care of some domestic
problems and Rice had granted that leave. When he received
the discharge letter, he brought it to Rice’s attention and
Rice informed him to ignore the letter because it was a mis-
take on the part of Davis, the company official who sent the
letter. During the interim during which he assertedly could
not work because he had to devote his full time and attention
to his domestic problems, Hiles took a job as a security
guard during the Christmas holidays, but intended that it
would only be temporary measure until he could be recalled
to work by the Respondent.
Even if one should credit the testimony of Rice and Hiles
on this point—and I do not—there is no indication of how
long the leave of absence which the Respondent assertedly
granted to Hiles on December 8 was scheduled to last and
when, if ever, Hiles would return to the Respondent’s pay-
roll. On that premise alone, Hiles should not be included on
the eligibility list on the critical date. However, the company
record pertaining to Hiles is a far more reliable indicator of
Hiles’ status during this period of time than the testimony of
either witness. Accordingly, I will exclude Hiles from the
bargaining unit on the basis that he had been discharged for
excessive absenteeism.
(11) Leroy Snow. Snow was hired as a crater/packer in
December 1987 and worked until May 1988. At that time,
Snow went on what he referred to as ‘‘medical leave’’ be-
cause of a hereditary problem relating to his ankle which
prevented him from doing hard physical labor because of ex-
cessive pain. In conjunction with the advice of his doctors,
Snow elected to undergo physical therapy rather than sur-
gery. He told Rice that he was leaving and made no state-
ment concerning any intention to return to the Respondent’s
work force. Rice told him to do what he had to do and stated
further that, if Snow ever wanted to return to work, he could
do so. Snow left on or about May 31, 1988.
In August 1988, Snow phoned Rice and informed him that
he was entering Butler County Community College as a full-
time matriculated student to study accounting. Rice repeated
to Snow that, if he ever wanted to come back to work, he
could. Snow began a full-time course of studies at that time
and continued throughout the ensuing school year. He is still
enrolled. Snow also continued to take physical therapy for
his ankle until December 1988. He was not on the Respond-
ent’s payroll in January 1989, nor within 6 months of that
date, either before or after.
On or about June 15, 1989, Snow went to the Kittanning
plant and asked Rice for summer employment. He was hired
in mid-June under the clear understanding that he would
leave in mid-August to return to school. In fact, he did so
and did not tell the Respondent that he had any intention of
returning to work after the end of his summer employment.
It is clear from this set of facts that Snow was not on
leave of absence, either temporary or indefinite, on the criti-
cal dates in January, but that he had quit his job. His phone
call to Rice was merely an attempt to ‘‘keep the door open’’
should he ever desire to return to work. Snow’s status as a
full-time student on January 12 and 13 is wholly inconsistent
with any contention that he was an employee of the Re-
spondent at that time. The fact that he returned during sum-
mer vacation does not mean that he was an eligible employee
for collective-bargaining purposes, either then or at any other
time.28 Accordingly, I will exclude Snow from the bargain-
ing unit.
(12) Don Boyle. Boyle was hired by the Respondent in
August 1988, as a general helper, and worked at Renfrew
until December 9, 1988, when he was laid off for lack of
work. He has not worked for the Respondent since that time.
When Boyle was laid off, he was told that the layoff was
indefinite and that the Respondent could not assure him any
definite date for his return. The posted notice stated that the
layoff was ‘‘indefinite.’’ On January 9, 1989, the Respondent
wrote Boyle a letter asking him to return the company uni-
forms which he had in his possession and which he had not
returned and for which the Company was being charged by
the uniform rental company. Rice testified that he thought
Boyle had moved but there is no conclusive evidence in the
record on that point. Rice also testified that, at some unstated
time, he offered Boyle a job at the Kittanning plant but
Boyle, who had transportation problems, said that he would
have to wait until there was an opening at Renfrew. The em-
ployee complement at the Renfrew plant has declined since
Boyle’s layoff and apparently no opening has arisen.
It appears from Rice’s own testimony that, at the time of
the December 9 layoff, Boyle had no hope of returning to
work in the near future because of what his Supervisor Cot-
ton was instructed to tell him and because of what the layoff
notice stated. Since he was on indefinite layoff on the critical
date, he should not be included in the bargaining unit for
majority determination purposes.
(13) Donald Freeman and Ron George. Freeman and
George were both off work drawing workmen’s compensa-
tion on the critical dates. Freeman was hired on October 15,
1987, and worked at the kilns. He was seriously injured on
the job on August 5, 1988, while loading a stack of glass
into a mould, and has been on workmen’s compensation
since August 25. His injury was diagnosed as a herniated
disc with two protruding discs. Rice acknowledged the seri-
ousness of his injury and the legitimacy of his compensation
claim. Testifying in this case on August 8, 1989, Freeman
stated that he did not know even then when he might be able
to return to work and stated further that he had been advised
by his physicians that he might have to seek other employ-
ment that did not involve manual labor. In light of these con-
siderations, there was no reasonable expectation on Free-
man’s part, either in January 1989, or at any other time, that
he would return to work for the Respondent in the near fu-
ture or at any other time. For that reason, he should be ex-
cluded from the bargaining unit.
A different situation exists with respect to another em-
ployee who was drawing workmen’s compensation on the
395CUSTOM BENT GLASS CO.
29 There was argument in the briefs relating to Jay Maycock, a general help-
er, who quit on January 9, 1989. Maycock was not among the 25 employees
whose eligibility the parties agreed was in dispute. As such, he was stipulated
to be out of the unit and I will not look behind this stipulation.
critical date whom the Respondent wishes to include in the
unit. Ron George was employed by the Respondent in No-
vember 1987 as a kiln worker. On July 14, 1988, he suffered
a laceration of his left forearm. Both the Respondent and its
compensation carrier wanted George to come back to work
on limited duty, but George declined to do so until the insur-
ance carrier threatened to cut off his compensation payments.
Faced with this prospect, George returned to work on March
21, 1989, and is still employed by the Respondent. Based on
these facts, I conclude that, on the critical dates in January
1989, George had a reasonable expectation of employment in
the near future and should be included in the bargaining unit.
(14) Herman Carper. Carper was hired by the Respondent
on December 9, 1989, as an over-the-road truckdriver and
worked for the Respondent until August 1989. Carper drove
a vehicle owned by the Respondent to deliver glass to such
cities as Atlanta, Baltimore, and Boston and to states such
as Ohio, Indiana, and Nebraska. For this effort he was paid
18-1/2 cents a mile and was given an expense allowance of
$5 per day while on the road. For deliveries in western Penn-
sylvania, it was more advantageous to Carper to be paid on
an hourly basis; he could elect to be paid in this manner for
those deliveries. Carper spent most of his working time away
from the plant. He was given the opportunity of performing
work at the plant in the crating department to make out a
full week if there was insufficient delivery work. In those in-
stances, he would be paid $4.50 an hour. During each of the
weeks in January he worked less than a full day on an hourly
basis and derived almost all of his income from the mileage
rate quoted above.
Since Koester Baking Co., 136 NLRB 1006 (1962), the
Board has routinely excluded over-the-road truckdrivers from
production and maintenance bargaining units because such
employees are compensated on a different basis than plant
workers, spend little or no time at the plant, and have little
or no community of interest with plant employees. See Key-
stone Pretzel Bakery, 242 NLRB 492 (1979); Ideal Laundry
& Dry Cleaning Co., 152 NLRB 1281 (1965), enfd. 372
F.2d 307 (10th Cir. 1967). These factors control the eligi-
bility of Carper and require that he be excluded from the Re-
spondent’s production and maintenance bargaining unit.
(15) Robert Beatty. Beatty’s status at the plant presents a
close question of eligibility. He was hired in January 1987
as a crater and packer at the Renfrew plant and is still em-
ployed. Beatty is paid $5.50 an hour and normally works a
full workweek. Without more, he would be routinely in-
cluded in the bargaining unit.
However, in addition to his regular work, Beatty reclaims
lumber which has been used at the plant for packing. He vis-
its various glass distributors in the Pittsburgh area to whom
the Respondent has sold glass, picks up crates in which the
Respondent has shipped glass, cleans the crates, and returns
them to the plant to be used again for future shipments. To
assist in this effort he employs his son and another teenager
and performs the cleaning work either at his own home or
at the Renfrew plant. When Beatty delivers a load of recon-
ditioned crates, he submits an invoice to the Respondent and
it paid between $75 to $125 per load, depending on the size
of the load. The General Counsel and the Charging Party
argue that Beatty should be excluded from the bargaining
unit because a basic conflict of interest exists between him
and other members of the bargaining unit because the Re-
spondent is not only his employer, but his customer as well.
I agree with the General Counsel that Beatty’s case falls
within the holding of the Board and enforced by the Third
Circuit in Alumbaugh Coal Corp., 247 NLRB 895 (1980),
enfd. in pertinent part 635 F.2d 1380 (8th Cir. 1980).
Beatty’s ongoing business relationship with the Respondent
sets him apart from the other employees at the plant who are
compensated exclusively by wages and fringe benefits.
Beatty is an independent contractor with respect to his lum-
ber reclamation activities and these activities provide him
with substantial income. Accordingly, his interests are not
wholly aligned with those of other employees, who do not
enjoy this business relationship with the Respondent. Accord-
ingly, I will exclude him from the bargaining unit.
(16) Summary. In light of the above considerations, the
collective-bargaining unit of the Respondent’s production and
maintenance employees on January 12 and 13, 1989, in-
cluded 47 members, as follows:
a. The employees
named in the stipulation
of the parties found in
the record
41
b. The discriminatees
who were discharged on
January 12 and 13,
1989
5
c. Ron George 1
Total 4729
(d) The General Counsel submitted 28 authorization cards
upon which he is relying to establish the Union’s majority
status on the critical dates. Because Pagliari was found not
to be a part of the bargaining unit, I will exclude his card
in making any computation. Of the remaining 27 cards, the
Respondent objects to the use of 12 because of various irreg-
ularities which assertedly attended their execution.
(1) Some of the Respondent’s objections relating to miss-
ing dates or erroneous dates are patently frivolous and can
be disposed of easily. Respondent argues that cards signed
by Dean Crawford and Patrick Claypoole should not be
counted because those cards bear no date. Claypoole’s card
is undated but, on the reverse side, bears the time and date
stamp of the Board’s Pittsburgh office for January 13, mean-
ing that it was submitted to the Board by the Union with the
representation petition, which was mailed from its Greens-
burg office on January 12. Claypoole testified at the hearing
without contradiction that he signed his card on January 11
and simply forgot to date it. There is no requirement that au-
thorization cards be dated. The only requirement is that they
be signed on or before the date used to determine the
Union’s majority status. Both the marking on the reverse side
of Claypoole’s card and his record testimony establish that
his card was executed before the critical dates in this case.
Likewise, Crawford’s card bears no date on the front side
but does bear the January 13 stamp of the Board’s Regional
Office on the reverse side. Crawford personally identified his
card at the hearing and stated that he signed it sometime in
396 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
30 144 NLRB 1268 (1963), enfd. 351 F.2d 917 (6th Cir. 1975).
December 1988. This testimony, taken together with the
Board’s time and date stamp, make it clear that the card was
executed before the critical dates in this case.
Ronald Smail’s card bears the date of September 15, 1988,
on the front side and the January 13 stamp of the Board’s
Regional Office on the reverse side. These facts alone would
not invalidate the card since a card executed on September
15 could be used to establish majority status on January 12
or 13 of the following year. The September date is an obvi-
ous error since the organizing drive did not begin until No-
vember. Smail personally identified his card at the hearing
and testified that he had mistakenly written on the card the
date he began working for the Respondent, not the date on
which he had signed the card. He further testified that he
signed the card on January 11, 1989, at the union meeting
which took place at the Kittanning firehouse. Such testimony
is sufficient to satisfy any captious doubt as to the date on
which the card was signed and its availability for use in de-
termining the Union’s majority on the critical dates.
The card of Charles A. Colton bears the date of January
11, 1988. This fact alone would not invalidate its use on Jan-
uary 12, 1989. The card also bears the Board’s January 13,
1989, stamp on the reverse side. Colton identified his card
personally at the hearing and testified that he signed it on
January 11, 1989, stating that placing the date ‘‘1988’’ on
the card was an accidental error. The Respondent’s objection
to its use in determining majority status is overruled and the
card will be counted for that purpose.
(2) Respondent objects to the use of cards executed by
Charles Watts and Donald Montgomery because these em-
ployees assertedly did not know what they were doing when
they signed authorization cards designating the Charging
Party as their bargaining agent. Watts is a maintenance man
who signed a card at the Renfrew plant on December 21,
1988. The card had been given to him by McKinney. Mont-
gomery, a former employee who worked at the kilns, signed
a card on January 12, 1989, which was given to him by Gary
Bowser.
The cards in question were unambiguous and written in
simple English. Headed ‘‘Official Membership Application
and Authorization,’’ the cards stated that the signer was here-
by applying for membership in the Union and that he was
designating and authorizing the Union to act on his behalf
as his collective-bargaining representative. The word ‘‘elec-
tion’’ does not appear on the face of the instrument. There
is no contention that Watts, Montgomery, or any other card
signer was non compos mentos or that he or she had been
adjudicated incompetent by a court and made the ward of a
committee or guardian. Accordingly, they should be bound
by what they sign, notwithstanding assertions made after-
wards that they did not know what they were signing. There
is every reason to apply this rule strictly when the instrument
in question is, like this one, simple, clear, and direct in its
statement and meaning. The fact that these cards can be used
as a showing of interest to support the filing of a representa-
tion petition and in fact were used for that purpose in no way
detracts from statements that appear on their face or from the
authorizations conferred by those who have adopted those
statements by affixing their signatures. This age-old policy of
the law—holding adults to the terms and conditions of docu-
ments which they have signed—has found its way into the
administration of the Act. The Board has held that the fact
that a card signer misunderstands the nature of an authoriza-
tion card (or says he does) is irrelevant and in no way under-
mines the validity of the card. C & T Mfg. Co., 233 NLRB
1430 (1977). The only question the Board will look to in ex-
amining the execution of a card is whether it is the product
of coercion, or misrepresentation attributable to the orga-
nizer.
Watts testified that he did not have his glasses with him
when he signed the card so he did not read the card before
he signed it. According to him, McKinney told him that the
card was for an election or voting and also said that, if Watts
signed the card, there would be an election and he would be
protected. According to Watts, McKinney pointed with his
finger to the places on the card which Watts was supposed
to sign and Watts signed it. The card itself shows that Watts
correctly entered the proper information in block print letters
after the appropriate indications on the printed form. He did
print his name where the form called for signature and he
signed his name in cursive writing where it called for his
name, but he entered the name of his employer, the date, and
his postal box and city of residence in his own handwriting
in the proper locations. McKinney testified that Watts in fact
did read the card and signed it in his presence. He further
testified that he told Watts that the reason for signing the
card was to help organize a union and to get Watts actively
involved in supporting it. I credit McKinney and discredit
Watts, one of several employees who, in the wake of the
heavy handed and coercive campaign waged by the Respond-
ent, came to the hearing in this case to ingratiate themselves
with an angry employer by repudiating their free act and
deed. I will count Watts’ card.
Montgomery testified that, in the course of a highly intimi-
dating conversation with Rice in which Rice called him a
‘‘— asshole’’ for signing a union card, he told Rice that he
thought that the Union had to contact him again before there
would be a vote. Montgomery had received this information
from a friend who was working in a lumber yard where
Montgomery is now employed and who was telling Mont-
gomery about an organizing drive by another union which
was then in progress at the lumber yard. A few days after
his conversation with Rice, Montgomery obtained one of the
card withdrawal forms which the Company had prepared and
sent it in to the Union office. A statement assertedly made
to Montgomery by an employee of another employer in-
volved in a campaign by another union does not amount to
a misrepresentation by this union about this card in this cam-
paign. It does not form the basis for invalidating Montgom-
ery’s card nor does Montgomery’s partial misunderstanding
as to the role of authorization cards in an organizing cam-
paign. I will count Montgomery’s card.
(3) The Board has, on occasion, invalidated union author-
ization cards and refused to count them in making a deter-
mination of majority status by invoking its Cumberland Shoe
rule.30 According to Cumberland Shoe, if a card solicitor
misrepresents the purpose of a union authorization card by
telling a prospective card signer that the sole purpose of a
card is to obtain a representation election, the card may not
be used by the General Counsel to support a refusal to bar-
gain allegation in a complaint. The Cumberland Shoe rule
was given qualified endorsement by the Supreme Court in
397CUSTOM BENT GLASS CO.
31 ‘‘We also accept the observation that employees are more likely than not,
many months after a card drive and in response to questions of company coun-
sel, to give testimony damaging to the union, particularly where company offi-
cials have previously threatened reprisals for union activity in violation of Sec.
8(a)(1). We therefore reject any rule that requires a probe of an employee’s
subjective motivations as involving an endless and unreliable inquiry.’’ Gissel,
supra, 395 U.S. at 608.
the Gissel case, along with a cautionary statement, certainly
applicable to this case, that employees should be bound by
the clear language of what they sign and the Board should
treat with suspicion the testimony of card signers who seek
to relieve themselves of the consequences of their acts by
post-signature testimony which is often the product of em-
ployer coercion.31 Moreover, a statement by a card solicitor
that a card can or will be used to get an election does not
amount to a misrepresentation because, as pointed out above,
cards can be used to get a representation election and fre-
quently are used for that purpose. Applying these rules to
credited evidence involving the cards of Valerio, Wright,
Douglas Kolich, Diane Raimondi, James Shannon, and
Dewayne Stevenson, I find that these cards were not the
product of misrepresentation under the Cumberland Shoe rule
and should be counted toward establishing the Union’s ma-
jority status. The General Counsel’s motions to admit the
cards of Kolich and Shannon were taken under advisement
at the hearing. Those cards are now admitted into evidence.
Kolich is an insulator in the bent laminating department.
He was designated a group leader a few weeks before the
hearing in this case. On December 29, 1988, he signed a
union authorization card at the Kittanning plant which had
been given to him by his uncle, Gary Bowser. Kolich admits
that he read the card. According to his testimony, someone—
possibly Bowser, but he was not sure—told him that it was
‘‘merely [to] hold an election if they got a majority. If they
got a certain amount, I think it was thirty percent, they were
to hold an election whether or not to bring the union in.’’
In his pretrial affidavit, Kolich stated that ‘‘when I signed
that card I was told by signing the card that I was requesting
that the Union represent the workers at Custom Glass Cor-
poration.’’ Kolich then stated on the stand that he could not
remember whether he was told ‘‘about the thirty percent, you
know, to bring in the vote before or after I signed that. I—
that I can’t remember. It may have been after, or before, I
can’t remember.’’ When pressed, he stated that he remem-
bered being told that, by signing the card, he was requesting
the Union to represent the employees at Custom Glass.
Kolich’s testimony on this point is wavering, contradictory,
and wholly unreliable. For these reasons, and on the basis of
his demeanor, I discredit it and will count the card.
James Shannon is an autoclave operator and has worked
for the Respondent since October 1987. He signed a card on
January 12, 1989, at the plant. According to his testimony,
he had ‘‘left word’’ with his fellow employees that, if some-
one wanted to give him a card, it should be placed in his
lunch box. Someone put a card in his lunch box. He did not
read it but he signed it. He thinks he turned it in to Baker.
Shannon further testified that he thought the purpose of the
card was just for a vote because that was what everyone was
saying; however, he could not identify anyone who had said
it to him. In his pretrial affidavit, Shannon stated that ‘‘by
signing the card, I was expressing my support for the union
presence at Custom Glass Corporation.’’ Shannon repudiated
his affidavit by saying that he did not read it and signed it
at the advice and suggestion of his father. Shannon was
interviewed before trial by a Curley, the legal assistant to
Respondent’s counsel. He testified that it was after speaking
with Curley that he decided that he would testify that he had
been told that the purpose of the authorization card was to
get a vote. He added that he had not been prompted in this
regard. Shannon’s testimony, taken at face value, does not
provide a basis for invalidating his card because he could not
identify any union agent as a person who had misrepresented
to him its purpose. However, I discredit Shannon’s testimony
on the basis of demeanor and on the basis of his wavering,
contradictory, and inherently unbelievable testimony. Accord-
ingly, I will count his card.
Nicholas W. Valerio is a group leader at the kilns and has
been employed by the Respondent for about four years. He
signed a card, which is undated, on January 12. The card
was given to him by Gary Bowser. According to Valerio,
Bowser handed him a card inside the plant and told him that
the purpose was just to get a vote. Valerio took the card and
kept it throughout most of the workday. He stated that he did
not read the card but signed it at a standup desk which is
located in the plant near the kiln. He returned the card to
Bowser who said that he was going to turn it into the Union.
Two or 3 days later, Valerio spoke with Rice about the card.
He told Rice that he had signed one but that he did not know
what he was doing. Later, Valerio obtained one of the card
withdrawal forms that the Respondent had prepared and
mailed it into the Union. Bowser testified credibly that he
and Valerio rode together to work and that he handed
Valerio a card while in his automobile. He denied ever tell-
ing Valerio that the only purpose to be served by signing the
card was to get an election. Valerio admitted on the stand
that his memory was poor. It is also obvious from the facts
in the record that it had been massaged by the intimidating
conduct of this Respondent. I credit Bowser’s denial and I
will count Valerio’s card.
Diane Raimondi works in the bent laminating department
at Kittanning as a flat glass laminator. She has been em-
ployed by the Respondent since October 1987. On December
29, 1988, she signed a union authorization card which was
given to her at the plant by Colton. She thought that Bowser
said that, if the Union collected enough cards, it would bring
in a vote. She denied that Colton or Bowser ever told her
that the sole purpose of the card was to get a vote but stated
that she personally believed that the purpose of signing the
card was just to get a vote. She admitted that she read the
card. In a pretrial affidavit Miss Raimondi stated that she had
been told that, by signing a card, she was applying for mem-
bership in the Union, but then she hedged on that statement
by claiming that she had come to this conclusion only after
re-reading the card at the suggestion of the Board agent who
took the affidavit. Raimondi obtained one of the card with-
drawal forms which the Respondent had prepared and sent
it into the Union’s office. I discredit Raimondi’s on the basis
of her demeanor and on the basis of the uncertainty and im-
plied contradictions in her testimony. Accordingly, I will
count her card.
Dewayne Stevenson has worked for the Respondent since
February 1986 and at the Kittanning plant since August
1988. He attended the January 11, 1989 union meeting at the
Kittanning firehouse and, on that occasion, signed a union
398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
card which was given to him by Shinn. Stevenson thinks that
Shinn said to him that, if enough cards were signed, there
would be an election. He affirmatively testified that Shinn
did not say that the sole purpose of a card was to get a vote.
The statement which Shinn reportedly made to Stevenson at
this meeting does not constitute a misrepresentation so there
is no basis for invalidating Stevenson’s card. It will be
counted.
James A. Wright Jr. is a glass cutter who was employed
by the Respondent in August 1988. He signed a card on De-
cember 29, 1989, and thinks he gave it to Bowser. He admits
reading the card before signing it. Wright testified that,
sometime after signing the card, he attended a union meeting
during which Shinn stated that the only purpose of a card
was to get an election. Taking Wright’s testimony at face
value, there would be no basis for invalidating his card be-
cause the asserted misrepresentation by Shinn did not occur
until after Wright had signed the card and turned it in. Shinn
testified credibly that he never stated to any employee that
the sole purpose of a card was to obtain an election. I dis-
credit so much of Wright’s testimony which is to the con-
trary and will count Wright’s card.
(4) Summary. In light of the foregoing findings, I further
find that, by January 12, 1989, some 27 of the 47 members
of Respondent’s bargaining unit had signed valid authoriza-
tion cards designating the Charging Party as their collective-
bargaining representative for the purpose of negotiating a
contract with the Respondent. Accordingly, the Union was
the majority representative of the Respondent’s production
and maintenance employees on and after that date.
4. The refusal to bargain
On January 12, 1989, the Union wrote a certified letter to
Rice in which it claimed to be the collective-bargaining rep-
resentative of a majority of the Respondent’s production and
maintenance employees. It requested recognition following a
card check. The Respondent never extended to the Union the
courtesy of a formal reply, either orally or in writing. Instead
it embarked upon a campaign of coercion and intimidation
designed to destroy the Union’s majority status by any
means, either fair or foul. Accordingly, it is immaterial, in
establishing a violation of Section 8(a)(5) of the Act, whether
the Union possessed a card majority on that precise day so
long as it did so either on January 12 or at some point in
time thereafter, because the Union’s demand for recognition
is considered to be a continuing demand. Jimmy Richard Co.,
210 NLRB 802 (1974); Kena 60 Minute Photo, 277 NLRB
867 (1985). As discussed more fully later on, in determining
whether a bargaining order is an appropriate remedy, it is
immaterial whether the Union ever made a demand for rec-
ognition, since a Gissel remedy, the principal bone of conten-
tion in this case, is a remedy for an 8(a)(1) violation and
does not depend, for its validity, upon a preliminary finding
that an employer has unlawfully refused to bargain. How-
ever, since the facts in the record herein make it abundantly
clear that the Respondent did refuse to bargain collectively
with the majority representative of its production and mainte-
nance employees after being requested to do so, I find that
it violated Section 8(a)(1) and (5) of the Act.
On the foregoing findings of fact and conclusions of law,
and on the entire record herein considered as a whole, I
make the following
CONCLUSIONS OF LAW
1. Custom Bent Glass Company, Custom Glass Corpora-
tion, Saxonburg Industries, and Custom Resources Company,
is now, and at all times material have been, employers en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Aluminum, Brick, and Glass Workers International
Union, AFL–CIO–CLC is a labor organization within the
meaning of Section 2(5) of the Act.
3. All full-time and regular part-time production and main-
tenance employees employed by the Respondent at its
Renfrew and Kittanning, Pennsylvania, factories, exclusive of
office clerical employees, salesmen, guards, professional em-
ployees, and supervisors as defined in the Act, constitute a
unit appropriate for collective bargaining within the meaning
of Section 9(b) of the Act.
4. Since on or about January 12, 1989, the Union herein
has been the exclusive collective-bargaining representative of
all the employees in the unit found appropriate in Conclusion
of Law 3 for the purpose of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By refusing to recognize and bargain collectively with
Aluminum, Brick, and Glass Workers International Union,
AFL–CIO–CLC as the exclusive collective-bargaining rep-
resentative of its employees employed in the unit found ap-
propriate in Conclusion of Law 3, the Respondent has vio-
lated Section 8(a)(5) of the Act.
6. By discharging Steven Six, Gary Bowser, Virgil K.
Cousins, and James A. Wright, by laying off John McKinney
and then converting his layoff into a discharge, and by laying
off John Baker and Charles Colton because of their member-
ship in and activities on behalf of the Union, the Respondent
herein violated Section 8(a)(3) of the Act.
7. By the acts and conduct set forth above in Conclusions
of Law 5 and 6; by coercively interrogating employees con-
cerning their union activities; by engaging in surveillance of
the union activities of its employees and by creating in the
minds of employees the impression that their union activities
are the subject of company surveillance; by threatening to
discharge employees and by telling employees that other em-
ployees have been discharged for engaging in union activi-
ties; by soliciting employees to withdraw their union author-
ization cards; by promising employees unspecified benefits if
they would cease to support the Union; by telling employees
that the Company would never recognize a union, would
never bargain with a union, and would never sign a contract
with a union; by telling employees that engaging in union ac-
tivities would be futile because the company officers had
bought off unions before and would buy them off again; by
threatening to reduce production or to close the plant if the
Union came in; by threatening to withhold pay increases and
to cease investing in the Company if the Union came in; by
advising an employee that his reinstatement was conditioned
upon abandoning his support for the Union; and by promul-
gating and enforcing an overly broad no-solicitation rule, the
Respondent herein violated Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices have a close, inti-
mate, and adverse effect on the free flow of commerce with-
in the meaning of Section 2(6) and (7) of the Act.
399CUSTOM BENT GLASS CO.
32 F. W. Woolworth Co., 90 NLRB 289 (1950).
33 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
REMEDY
Having found that the Respondent herein has engaged in
certain unfair labor practices, I will recommend that it be re-
quired to cease and desist therefrom and to take certain af-
firmative actions designed to effectuate the purposes and
policies of the Act. Since the independent violations of Sec-
tion 8(a)(1) of the Act found herein are repeated, pervasive,
and evidence an attitude on the part of the Respondent to be-
have in total disregard of its statutory obligations, I will rec-
ommend to the Board a so-called broad 8(a)(1) order de-
signed to suppress any and all violations of that section of
the Act. Hickmott Foods, Inc., 242 NLRB 1357 (1979). The
recommended Order will also recommend that the Respond-
ent be required to offer to Steven Six, John McKinney, John
Baker, James A. Wright, Virgil K. Cousins, Gary Bowser,
and Charles Colton full and immediate reinstatement to their
former or substantially equivalent employment and to make
them whole for any loss of earnings which they may have
sustained by reason of the discriminations practiced against
them, in accordance with the Woolworth formula,32 with in-
terest at the rate prescribed by the Tax Reform Act of 1986
for the overpayment and underpayment of income tax. New
Horizons for the Retarded, 283 NLRB 1173 (1987).
The General Counsel and the Charging Party have re-
quested, inter alia, a so-called Gissel remedy which would
require the Respondent to recognize and bargain with the
Union as the exclusive collective-bargaining representative of
its production and maintenance employees. In this case the
Respondent engaged in a campaign of wholesale intimidation
and coercion of its employees upon learning that a union was
undertaking an organizational campaign. Included in this ef-
fort was the layoff and discharge of seven suspected union
adherents and threats to discharge more union supporters if
and when they could be discovered. Also included in this ef-
fort were threats to either close the plant in the event of
unionization or to reduce one of its main production lines so
that large scale layoffs would be necessary. It is hard to
imagine any conduct on the part of an employer which could
more thoroughly decimate an organizing drive or more surely
render a Board election meaningless. The Board and the
Third Circuit have issued Gissel orders and decrees based
upon conduct far milder than that which was found in this
case. Accordingly, I have no hesitance about recommending
it here. NLRB v. S. E. Nichols-Dover, Inc., 414 F.2d 561 (3d
Cir. 1969); NLRB v. Broad Street Hospital & Medical Cen-
ter, 452 F.2d 302 (3d Cir. 1971); NLRB v. Easton Packing
Co., 437 F.2d 811 (3d Cir. 1971); NLRB v. Colonial Knitting
Corp., 464 F.2d 949 (3d Cir. 1972); Toltec Metals, Inc. v.
NLRB, 490 F.2d 1122 (3d Cir. 1974); Frito-Lay v. NLRB,
585 F.2d 62 (3d Cir. 1978); NLRB v. Kenworth Trucks of
Philadelphia, 580 F.2d 55 (3d Cir. 1978); NLRB v. Eagle
Material Handling, Inc., 558 F.2d 160 (3d Cir. 1977); Mid-
land-Ross Corp. v. NLRB, 617 F.2d 977 (3d Cir. 1980). I
will also recommend that the Respondent be required to post
the usual notice, advising its employees of their rights and
of the results in this case.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended33
ORDER
The Respondents, Custom Bent Glass Company, Custom
Glass Corporation, Saxonburg Industries, and Custom Re-
sources Company, Kittanning and Renfrew, Pennsylvania,
and their officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees concerning their
union activities.
(b) Engaging in surveillance of the union activities of its
employees and creating in the minds of employees the im-
pression that their union activities are the subject of company
surveillance.
(c) Threatening to discharge employees because of their
union activities or telling employees that other employees
have been discharged for engaging in union activities.
(d) Soliciting employees to withdraw their union author-
ization cards.
(e) Promising employees unspecified benefits if they cease
supporting the Union.
(f) Telling employees that the Company will never recog-
nize a union, will never bargain with a union, or will never
sign a contract with a union.
(g) Telling employees that engaging in union activities
will be futile because the company officers have bought off
unions before and would buy them off again.
(h) Threatening to reduce production or to close the plant
if a union comes in.
(i) Threatening to withhold pay increases or to cease in-
vesting in the Company if a union comes in.
(j) Advising employees that their reinstatement is condi-
tioned on abandoning support for the Union.
(k) Promulgating or enforcing an overly broad no-solicita-
tion rule.
(l) Discouraging membership in or activities on behalf of
Aluminum, Brick, and Glass Workers International Union,
AFL–CIO–CLC or any other labor organization by discharg-
ing or layoff off employees or otherwise discriminating
against them in their hire or tenure.
(m) Refusing to recognize and bargain collectively in good
faith with Aluminum, Brick, and Glass Workers International
Union, AFL–CIO–CLC as the exclusive collective-bargaining
representative of all of the Respondent’s full-time and regu-
lar part-time production and maintenance employees em-
ployed at its Kittanning and Renfrew, Pennsylvania, plants,
exclusive of office clerical employees, salesmen, guards, pro-
fessional employees, and supervisors as defined in the Act.
(n) By any other means or in any other manner interfering
with, restraining, or coercing employees in the exercise of
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to Steven Six, Gary Bowser, Virgil K. Cousins,
James A. Wright, John McKinney, John Baker, and Charles
Colton full and immediate reinstatement to their former or
substantially equivalent employment, without prejudice to
their seniority or to other rights previously enjoyed, and
make them whole for any loss of pay or benefits suffered by
them by reason of the discriminations found herein, in the
400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
34 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
manner described above in the remedy section of this deci-
sion.
(b) Recognize and, on request, bargain collectively in good
faith with Aluminum, Brick and Glass Workers International
Union, AFL–CIO–CLC as the exclusive collective-bargaining
representative of all full-time and regular part-time produc-
tion and maintenance employees employed by the Respond-
ent at its Kittanning and Renfrew, Pennsylvania factories, ex-
clusive of office clerical employees, salesmen, professional
employees, guards, and supervisors as defined in the Act.
(c) Preserve and, on request, make available to the Board
and its agents for examination and copying all payroll and
other records necessary to analyze the amounts of backpay
due under the terms of this Order.
(d) Post at the Respondent’s Renfrew and Kittanning,
Pennsylvania plants copies of the attached notice marked
‘‘Appendix.’’34 Copies of the notice, on forms provided by
the Regional Director for Region 6, after being signed by the
Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered 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.
Insofar as the consolidated amended complaint in this case
alleges matters which have not been found to be violations
of the Act, the consolidated amended complaint is dismissed.