Glass Guard Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1974

212 N.L.R.B. 285 (N.L.R.B. 1974)

GLASS GUARD INDUSTRIES, INC. 285
Glass Guard Industries , Inc. and Paul Francis Lane,
Robert Osborne, Joseph Harvard, and Paul Dupre.
Cases 1-CA-9093-1,1-CA-9093-2, 1-CA-9193-3,
and 1-CA-9248
June 28, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On February 26, 1974, Administrative Law Judge
Ivar H. Peterson issued the attached Decision in this
proceeding. Thereafter, both Respondent and the
General Counsel filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs,
and finds merit in certain of Respondent's and Gener-
al Counsel's exceptions. Accordingly, we adopt only
so much of the Administrative Judge's ruling, find-
ings, and conclusions as is consistent with our Deci-
sion and Order herein.'
1. We find that Respondent violated Section
8(a)(1) of the Act by the following conduct of its
supervisors:
(a) In March 1973, employee Robert Osborne
spoke to Supervisor Corriveau about bringing a union
into the plant. Corriveau told Osborne that any union
activity would have to be reported and would result
in discharge.
(b) On June 22, 1973, President Shulman interro-
gated employee Barrette about union activity in the
plant.
(c) About a week after Paul Lane's discriminatory
discharge, Supervisor Morin told Supervisor Lime in
the'presence of driver Cote that Lane had been dis-
charged because "he was trying to bring in the union,"
but that Lane's bad accident record was to be the
ostensible explanation for the discharge.
(d) On April 11, 1973, Supervisor Morin asked em-
ployee Osborne about the Union. Osborne shrugged
his shoulders and said nothing. Morin then said,
"Look, you seen what happened to Lane, you know,
'Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find
no basis for reversing his findings.
it could happen to other people here too."
(e) Shortly before Osborne's discharge on May 21,
1973, Supervisor Morin learned from employee Lat-
ham that he had obtained a union card from Osborne.
Morin stated, "we've got him now even if the set up
with Russo doesn't work."
(f) On May 19, 1973, Supervisor Morin asked em-
ployee Harvard if anyone was trying to get a union in
and if Harvard had received a card. When Harvard
answered both questions in the negative, Morin said
that if a union got in, employees would have to work
7 days a week to get their 40 hours and there would
be no overtime. Morin also asked if Osborne had
anything to do with the Union. Harvard replied that
he did not know.
2. We adopt the Administrative Law Judge's find-
ings that Respondent discriminatorily discharged em-
ployees Lane, Osborne, and Dupre. We do not adopt
his similar finding as to employee Harvard.
Harvard was employed as an A-frame driver from
August 1971 to June 7, 1973, when he was discharged
by his supervisor, Rene Corriveau. Harvard had been
an excellent driver until about 3 months before his
discharge. During this 3-month period, according to
Corriveau, Harvard was not properly performing his
duties as a driver: he frequently did not complete his
assignments , his truck repeatedly broke down, and
glass kept breaking on his truck. On June 7, Harvard
made a delivery trip to New York City, but his motor
broke down and he was unable to complete his deliv-
eries because of delays in making repairs. When he
returned to Respondent's plant, Corriveau asked him
what had happened. Harvard replied that he had had
trouble on the road. Corriveau then discharged him
saying, "I'm sick and tired of your complaining and
breaking down and coming back with glass." When
Harvard took up the matter of his discharge with
Traffic Department Manager Kaufman, Corriveau's
superior, Kaufman said, "I don't want to go over
Rene's head right now. Call me up tonight and we'll
see if he's cooled off by then." The discharge re-
mained effective.
Unlike Lane, Osborne, and Dupre, Harvard was
not an active protagonist. So far as appears, his union
activity consisted of nothing more than the signing of
a union authorization card at the behest of Osborne.
There is no evidence that Respondent was aware of
this fact. On the contrary, approximately 2 weeks be-
fore his discharge, Harvard had answered negatively
questions by Supervisor Morin as to whether he knew
of union activity or had received a union card?
2 Former Supervisor Lune, who had been discharged by Respondent, and
was a witness for the General Counsel, testified that sometime between
March and June 1973 he had a conversation with Harvard about the unsatis-
factory condition of a truck and that Harvard had said that Respondent
Continued
212 NLRB No. 47
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In order to prove that Respondent discriminatorily
discharged employee Harvard, the General Counsel
has the burden of proving that Harvard was dis-
charged because he was active, or because Respond-
ent believed he was active, on behalf of a labor
organization. We do not believe that the General
Counsel has met that burden. Not only is there a lack
of evidence that Harvard was active on behalf of a
labor organization, there is also a paucity of evidence
to indicate that Respondent suspected him of such
activity. In this state of the record, we are not pre-
pared to say that Respondent's explanation for the
discharge of Harvard is so unreasonable as to give rise
to the inference that another, illegal, motive was the
real reason for the discharge. Accordingly, we shall
dismiss the complaint as to Harvard.
THE REMEDY
As we have found that Respondent engaged in cer-
tain unfair labor practices, we shall order it to cease
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
As we have found that Respondent unlawfully dis-
charged employees Paul Francis Lane, Robert Os-
borne, and Paul Dupre, we shall order that
Respondent offer them full and immediate reinstate-
ment to their former jobs or, if those jobs no longer
exist , to substantially equivalent positions, without
prejudice to their seniority and other rights and privi-
leges, and make them whole for any loss of earnings
they may have suffered by reason of the unlawful
termination of their employment. Respondent shall
pay to each of them a sum of money equal to that
which each would have earned as wages from the date
of each employee's unlawful termination to the date
of the offer of reinstatement less any net earnings
received during said period. Backpay shall be com-
puted on a quarterly basis in accordance with the
formula set forth in F. W. Woolworth Company, 90
NLRB 289, and shall include interest at the rate of 6
percent per annum as provided in Isis Plumbing &
Heating Co., 138 NLRB 716.
AMENDED CONCLUSIONS OF LAW
Delete Conclusions of Law 2 and 3 of the Adminis-
trative Law Judge's Decision and substitute therefor
wouldn't get away with this kind of vehicle condition and the type of loads
that were going out if the ICC knew about it or if there were a union in the
picture In his testimony on cross-examination as to this conversation with
Lime, Harvard could not fix the date when it occurred , except sometime in
1973, and he did not mention the remark about a union . Such testimony,
relied on by the General Counsel, is obviously an unreliable basis for infer-
ring knowledge on the part of Respondent of Harvard's union interest
the following:
"2. By discharging employees Paul Francis Lane,
Robert Osborne, and Paul Dupre because of their
activities on behalf of a labor organization, Respon-
dent discriminated against employees in violation of
Section 8(a)(3) of the Act.
"3. By the foregoing conduct, by coercively inter-
rogating employees concerning union membership
and activities, and by threatening employees with dis-
charge, the spread of the workweek, and a reduction
in overtime because of union activities, Respondent
interfered with, restrained, and coerced employees in
violation of Section 8(a)(1) of the Act.
"4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, Glass
Guard Industries, Inc., Webster, Massachusetts, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in any labor organi-
zation by discharging employees or otherwise dis-
criminating in regard to their hire or tenure of
employment or any term or condition of employment.
(b) Coercively interrogating employees concerning
union membership or activities, and threatening em-
ployees with discharge, spread of the workweek, and
reduction in overtime because of union activities.
(c) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of the
right to self-organization, to form labor organizations,
to join or assist any labor organization, to bargain
collectively through representatives of their own
choosing, and to engage in concerted activities for the
purpose of mutual aid or protection as guaranteed in
Section 7 of the Act, and to refrain from any and all
such activities, except to the extent that such right
may be affected by an agreement requiring member-
ship in a labor organization as a condition of employ-
ment as authorized in Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Offer to Paul Francis Lane, Robert Osborne,
and Paul Dupre immediate and full reinstatement to
their former jobs or, if these jobs no longer exist, to
substantially equivalent jobs, without prejudice to
their seniority or other rights and privileges, and make
each of them whole for any loss of pay suffered by
GLASS GUARD INDUSTRIES, INC. 287
reason of his discharge in the manner set forth in the
section of this Decision and Order entitled "The Rem-
edy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its plant in Webster, Massachusetts,
copies of the attached notice marked "Appendix." 3
Copies of said notice, on forms provided by the Re-
gional Director for Region 1, after being duly signed
by the Company's representative, shall be posted by
the Company immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Company to insure
that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed, insofar as it alleges violations of
the Act not specifically found herein.
MEMBER JENKINS, concurring in part and dissenting in
part:
I agree with my colleagues' findings that Respond-
ent violated Sections 8(a)(1) and (3) as set forth in
their opinion. However, I disagree with their conclu-
sions that Respondent did not discriminatorily dis-
charge Joseph H. Harvard. Instead, I would adopt the
Administrative Law Judge's findings that Harvard
was discriminatorily discharged in violation of Sec-
tion 8(a)(1) and (3) of the Act.
On May 19, Supervisor Morin unlawfully inquired
of Harvard if he knew of anyone in the plant who was
trying to get the Union in, if he (Harvard) had re-
ceived a union card or if he had anything to do with
the Union. Morin thereafter threatened that if the
Union got in, the employees would have to work 7
days a week to get their 40 hours in and there would
be no overtime. During that conversation Harvard
was noncommittal and denied that he had received a
union card. Were this the sum of the evidence regard-
ing Respondent's knowledge of Harvard's union ac-
tivity or sympathies then perhaps it would be
reasonable to conclude that General Counsel had not
met his burden of proof as to the discriminatory na-
ture of Harvard's discharge. The record contains
more, however.
During the week he was discharged, Osborne, here-
in found to have been discriminatorily discharged,
gave Harvard a union authorization card. Harvard
"talked union" with Osborne and other employees. In
addition, Harvard had been complaining about the
poor conditions of Respondent's trucks, and especial-
ly the fumes in his truck which made it dangerous to
drive. Between March and June, Harvard had numer-
ous discussions with Supervisor Lime about these
matters. Indeed, during\the week when he was dis-
charged, he complained bitterly and asked that the
trucks be fixed "before someone gets killed." Finally,
it appears that Harvard told Lime that the Respond-
ent would not get away with this kind of vehicle con-
dition and the type of loads that were going out if the
ICC knew about it or if there was a union in the plant.
Harvard was hired in August 1971. He was consid-
ered an excellent driver by his supervisors until about
3 months before his discharge. It appears that
Respondent's dissatisfaction with Harvard com-
menced almost simultaneously with the union organi-
zational activity in the plant. While it is true that
Harvard had problems with breakdowns and deliver-
ies, he always called the plant and cleared the action
to be taken with Traffic Department Manager Kauf-
man. Moreover, during his period of employment
Harvard received only one indefinite warning. On the
last day of his employment the alternator on
Harvard's truck broke down. He called the plant and
made arrangements to have the truck fixed. As a re-
sult of the delays in repairs he was unable to complete
his deliveries that day.
Supervisor Corriveau admitted he had no idea what
had happened to Harvard's truck and made no effort
to find out prior to Harvard's discharge. In addition,
Corriveau admitted that he never investigated to see
what had occurred in the past as to Harvard's break-
downs or to why his trucks were breaking down. He
further admitted that he had no records as to how
much glass Harvard returned to the plant. Finally,
Corriveau also testified that all drivers had break-
downs and failed to complete their runs from time ',to
time , and that Schofield, Harvard's replacement, had
problems with the truck Harvard had driven prior to
his discharge.4
In sum, I find that the credited evidence presented
by the General Counsel clearly establishes that Har-
vard told Supervisor Lime that he (Harvard) was in
3 In the event that this Order is enforced by a Judgment of a United States 4 In this regard the record shows that LeBeau indicated he sometimes had
Court of Appeals , the words in the notice reading "Posted by Order of the a breakdown every week and had one engine blow up and then dropped two
National Labor Relations Board" shall read "Posted Pursuant to a Judgment drive shafts, another driver completely "totaled" a truck without being dis-
of the United States Court of Appeals Enforcing an Order of the National charged, and that Harvard flipped a truck and blew an engine during the
Labor Relations Board." period when he was considered an excellent driver.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
favor of the Union, that Respondent interrogated and
threatened Harvard, that Harvard received a union
card and talked in favor of and supported the Union,
and that Harvard was discharged thereafter for an
occurrence which had frequently happened to other
drivers, for which they were not discharged and that
Respondent failed to investigate the reasons for
Harvard's truck breakdowns prior to Harvard's dis-
charge. Thus, the only reasonable inference that I can
draw from these facts, occurring as they did in the
midst of flagrant unlawful conduct on the part of the
Respondent in its effort to keep its employees from
seeking union representation, is that Respondent
knew of Harvard's prounion feelings and feared, or at
least suspected, that he would pick up where discrimi-
natees Lane and Osborne left off. Accordingly, it
seized upon Harvard's truck breakdown and failure to
complete his deliveries as a pretext for discharging
him.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer to Paul Francis Lane, Robert
Osborne, and Paul Dupre immediate and full re-
instatement to their former jobs or, if these jobs
no longer exist, to substantially equivalent jobs,
without prejudice to their seniority or other rights
and privileges.
WE WILL make whole Paul Francis Lane, Rob-
ert Osborne, and Paul Dupre for any wage losses
suffered by them as the result of our discrimina-
tory conduct.
GLASS GUARD INDUSTRIES,
INC
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 7th Floor, Bulfinch Building, 15 New
Chardon Street, Boston, Massachusetts 02114, Tele-
phone 617-223-3300.
DECISION
WE WILL NOT discourage membership in any
labor organization by discharging employees or
otherwise discriminating in regard to their hire or
tenure of employment or any term or condition
of employment.
WE WILL NOT coercively interrogate our em-
ployees concerning union membership or union
activities, or threaten our employees with dis-
charge, spread of the workweek, or reduction in
overtime because of their union activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the right to self-organization, to form
labor organizations, to join or assist any labor
organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage
in concerted activities for the purpose of mutual
aid or protection as guaranteed in Section 7 of
the Act, and to refrain from any and all such
activities, except to the extent that such right may
be affected by an agreement requiring member-
ship in a labor organization as a condition of
employment as authorized in Section 8(a)(3) of
the Act.
STATEMENT OF THE CASE
IvAR H. PETERSON, Administrative Law Judge: I heard this
case in Worcester, Massachusetts, on 6 days commencing
October 23 and concluding on November 14, 1973, based
on charges filed by the individuals named in the caption,
against Glass Guard Industries, Inc , Webster, Massachu-
setts, herein called the Company or Respondent. In sub-
stance, the consolidated complaint alleged that the
Company, by actions of various supervisory employees, in-
terfered with, restrained, and coerced its employees in viola-
tion of Section 8(a)(1) of the Act and, in addition,
terminated the individuals named because of their union
and/or concerted activities, in violation of Section 8(a)(3)
and (1) of the Act.
In its duly filed answer, the Respondent denied that it had
engaged in any unfair labor practices.
Upon the basis of the entire record in the case,' including
my observation of the witnesses as they testified and a care-
ful consideration of the briefs filed by counsel for the Re-
spondent and counsel for the General Counsel on January
II and 14, 1974, respectively, I make the following:
1 The Respondent' s motion to stnke certain testimony of witnesses Lime
and Osborne is hereby denied
GLASS GUARD INDUSTRIES, INC. 289
FINDINGS OF FACT borne obtained a Teamster's card and signed it, but made
no effort at that time to pass out cards to other employees.
1. THE BUSINESS OF THE RESPONDENT On the morning of April 11 Lane was sent on an errand and
The Respondent is engaged in the manufacture of tem-
pered and insulated glass. Its predecessor, Air Space, Inc.,
employed approximately 30 persons and had one trailer
driver and a total of four or five drivers. In May 1973, the
Respondent had a total complement of 220 employee, in-
cluding approximately 40 in its traffic department. At the
time of the hearing, it had approximately 350 employees in
three manufacturing departments-cutting, tempering, and
insulating-and other departments supportive of the manu-
facturing operations. It admittedly is engaged in commerce
within the meaning of the Act.
David Parkinson, the Respondent's employee relations
manager, testified that when he was hired on May 14, 1973,
the Respondent had no written or uniform personnel poli-
cies governing the conduct of the employees. Each depart-
ment, and often the shift supervisor involved, handled
matters of discipline individually and as the particular su-
pervisor viewed the matter of industrial justice. As a part of
his duties, Mr. Parkinson was assigned the task of attempt-
ing to institute personnel policies and he did draw up a
personnel policy booklet which was printed and distributed
to employees the week after June 26. However, supervisors
and department heads did not uniformally enforce these
policies and Parkinson testified that "there is so much pres-
sure on getting glass out the door the industry is almost
chaotic in this regard in getting the orders out . . . so when
I talk about safety and personnel, people start laughing."
Inasmuch as three of the alleged discriminatory termina-
tions concern the traffic department, it seems advisable at
this point briefly to describe it. Robert Kaufman is the
manager of the department and reports directly to the plant
manager. While he has overall responsibilities for the de-
partment, the direct control of employees is left to the vari-
ous supervisors who report to him. Rene Corriveau was the
A-frame supervisor, which included supervision of the A-
frame loaders and the A-frame drivers. Employees involved
in the loading, receiving, shipping, and driving of trailer
trucks were under the supervision of William Morin. Arthur
Lime, the night-shift supervisor, was in charge of loading
and unloading trailers. In addition the Respondent em-
ployed an assistant to the traffic manager.
H THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Paul Lane testified that about a month before he was
terminated he became interested in attempting to bring in
a union, and spoke to Osborne about the matter. According
to Osborne, he mentioned the subject to Corriveau and the
latter told him that any union activity would have to be
reported and would result in discharge. Corriveau denied
that any such conversation occurred. According to Lime, he
and Corriveau had several conversations before Lane's dis-
charge wherein Corriveau stated that any union activity had
to be reported right away "upstairs." Again, Corriveau de-
nied that any such conversation occurred. On April 4, Os-
continued about 3 miles further to the union hall and there
obtained authorization cards. After he returned to work he
spoke to employees about signing union cards and at lunch
he signed up a number of employees.
When Lane came back from lunch, he testified that Mo-
nn was "waiting for me," and that Morin said, "You're all
done," and handed him two paychecks. Lane asked Morin
why he was being terminated, and testified that Morin re-
plied, "If you want to know why, you will have to come
upstairs." Lane testified that they went upstairs to
Kaufman's office and that he asked Kaufman, "I want to
know why I'm fired." Kaufman, so Lane testified, an-
swered, "If you want a reason, it's for not punching out for
lunch." Lane asked Kaufman for a photostatic copy of his
timecard and then departed. He encountered some employ-
ees on his way out and testified that he told them, "I was
just fired for union activities." When he got home he real-
ized that his paycheck was $100 short, so he went back to
the plant and received another check for that amount from
Kaufman.
Kaufman testified that Lane was at the hospital, while his
wife was in labor for 9 hours and that he was on company
time. Lane testified that his child was born at 1:15 during
the afternoon of March 2 and that he then was at the Ford
Motor Company in Dearborn, Michigan. Lane added that
he telephoned and believed that he talked to Morin and
certainly talked to Kaufman. According to him, he told
Kaufman that his wife was in the hospital and that there
might be complications in effecting delivery. Shortly there-
after, Lane was able to speak to his wife at the hospital and
was informed that there were no complications. He there-
upon telephoned Kaufman and told him that there was
nothing wrong and that he would drive back. He left Dear-
born at approximately 2 p.m. and arrived back at the plant
at 8 o'clock the following morning. He went to the hospital
and stayed there approximately 45 minutes. Then he came
back to the plant after having fueled the truck.
On another occasion Lane made a trip to North Carolina
and Morin suggested the route that he should follow. How-
ever, Lane took a shortcut through the mountains by way
of Cumberland, Maryland, and made the trip in approxi-
mately 2 hours less time. When he returned, Morin asked
why he had not taken the route the latter had suggested and
reprimanded him. I
On another occasion Lane and two other employees, Wil-
liam Cody and Robert Bouche, were driving two trucks to
Cleveland, Ohio. While in Cleveland, Lane went into the
sleeper and managed to get 2 hours of sleep while the truck
was being unloaded. He had been driving for some 15 or 18
hours. About 100 miles from Cleveland the engine of the
truck, which was not a new one, blew up. They then drove
to the next rest area, about 4 miles, and telephoned the
plant. Lane telephoned a number of places in an effort to
get a new truck and finally was able to obtain one in Cleve-
land. After a wait of about 2 hours the truck arrived. While
waiting for the substitute truck, Lane had taken the vehicle
he had been originally assigned and had gone to pick up his
load of glass. The other two drivers hitchhiked back to the
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disabled truck.
Lane acknowledged that on one occasion he failed to
refuel a truck and that another driver later ran out of fuel
after traveling about 80 miles. According to Lane, he had
"put in a long week" and testified that the driver who ran
out of fuel "could have went 6 [miles] the other way and
refueled it." Lane testified that Kaufman stated that the
incident "was as much his [the other driver's] fault for not
checking as mine for not fueling before I came in." This
fueling incident occurred about a month before he was
terminated.
Lane testified that he came to work at 8 in the morning
on April 11 at approximately 9:30 and was sent to Worces-
ter to have a tarpaulin repaired. It was on this occasion that
he went to the union hall and returned to the plant at about
11:30. When he returned from lunch Morin was waiting for
him with his paycheck. He then went to see Kaufman and
testified that the latter "said if I need a reason, it's for not
punching out for lunch."
Frederick Anderson, who had worked for the Respond-
ent as a maintenance accountant for approximately a year
before he retired in August 1973, testified that on a Thurs-
day a notice was placed on the bulletin board stating that
the men would get paid at the end of their shift, which would
be Friday at 11 o'clock, rather than on Thursday. The group
of employees, three in number, went to Parkinson's office
and stated that they would have difficulty getting their
checks cashed on Saturday. However, Parkinson tele-
phoned the Commerce Bank in Webster and was told that
the bank was open from 9 to 12 on Saturday and that they
would have no trouble cashing their checks. The men were
still somewhat put out about the change and, according to
Anderson, as they left Parkins' office Paul Dupre stated,
"What this place needs is a goddamn good union." Ander-
son did sign a union card at Dupre' s solicitation on June 11.
Raymond Barrette testified that about a week or two after
Dupre was discharged he had a conversation with Norman
Shulman in the office of David Emory. Barrette testified
that while he was in Emory's office President Shulman came
into the office and stated that he wished to talk to Barrette.
According to Barrette, Shulman stated that he asked, "Can
you tell me what the heck is going on over here?" Thereaf-
ter, according to Barrette, Shulman " mentioned about the
union, finding out about the union." Barrette recalled tell-
ing Shulman "If the union gets in, I work here , I'm gonna
go in. What do you want me to do?"
Frank LeBeau, a truckdriver for the-Respondent, testified
that, during his 3 years as a truckdriver, on one occasion
when he was going to a jobsite the engine blew up and that
this occurred about a year and a half previously. He further
testified that he received no warning or reprimand from his
supervisor.
B. The Discharges
Counsel for the General Counsel, in his brief, argues that
the reasons advanced by the Respondent for the termina-
tion of Lane, Osborne, and Harvard are "demonstrably
false." With respect to Dupre, he asserts that an examina-
tion of the records of Dupre and two other employees, also
charged with excessive absenteeism, "reveals a classic, text-
book case of disparate treatment."
On the other hand, counsel for the Respondent urges that
the case presented by the government "rests on too weak a
foundation to withstand the substantial evidence test" with
respect to the terminations and that the government's evi-
dence "must create more than suspicion to support the in-
ference that the Company had knowledge of union activities
and the evidence cannot then be permitted atop this infer-
ence to conclude that the employees were discharged for
union activities." Lime testified that the week after Lane's
termination he and Morin and another truck driver named
Cody, were talking and "the subject came up about Paul
Lane not being around." According to Lime, Morin "told
me that Paul was fired for union-he was trying to bring in
the union, but he had a bad record with accidents . . . and
that's what anyone else was to know as far as they were
concerned." Lime further testified that during the week be-
fore he and Osborne were discharged he had a conversation
with,Morin during the afternoon in the cafeteria and that
Morin said "that they had suspected that Osborne was pick-
ing up where Lane left off ...'trymg to get enough signa-
tures to bring the union into the shop."
Lane was hired in November 1972 and was discharged on
April 11 the following year, allegedly for not "punching
out" on leaving the Respondent's premises to go to lunch.
This occurred within moments after Lane had passed out
and obtained signatures on union cards at the plant. In his
brief, counsel for the Respondent states that it is not con-
tended "that Lane's discharge was based solely on this inci-
dent, but rather that there were numerous incidents in his
5 months of service that had bearing on his effectiveness as
an employee." Morin testified that on March 18, 1973, when
he was serving as a truckdriver, he ran out of gas and stated
that Lane was responsible for that mishap because he had
failed to fuel the truck when he returned from a trip immedi-
ately preceding this incident. This resulted in a rather heat-
ed argument between Morin and Lane, with Morin stating
that he and his partner each lost about $60 or $65 in pay.
Shortly after the foregoing incident, Lane went on a trip
to Lexington, North Carolina, and refused to follow the
Respondent's designated route. This resulted in an argu-
ment between Lane and his codriver, Francis Demand, with
the latter notifying Kaplan, the assistant to Kaufman, that
he would never again drive with Lane.
Kaufman testified that Lane's logs for April 2 and 3
demonstrate that he had a breakdown in Michigan and
outside of Cleveland. According to Kaufman, Lane had
switched trucks and with regard to the truck that he was not
authorized to drive "he blew the engine on it." This trip was
a two-truck, three-man trip. After blowing the engine, so
Kaufman testified, Lane "left the driver with the break
down and took off in the truck that he was originally as-
signed to drive" and the other two drivers had to hitchhike
to the nearest telephone.
A third incident occurred in Dearborn, Michigan, when
Lane was told by two other drivers, Crania and Demand,
that he had a broken wheel lug and that it should be fixed
before the truck was loaded. Lane allegedly disregarded this
information, stating that he would wait until he reached
Toledo. About 2 miles from his stop in Dearborn, the truck
broke down and the other drivers involved in the Ohio
GLASS GUARD INDUSTRIES, INC. 291
incident complained to Morin who,-in turn reported the
complaints to Kaufman.
On the day of Lane's termination , Morin reported to
Kaufman that Lane had left the premises for lunch without
punching out, and that he had previously been warned
about this. Upon his return to the plant, Lane found Morin
waiting for him at the timeclock and Morin told Lane,
"You're all done" and handed him his paycheck.
Morin testified that in a discussion with a number of
drivers he told them "that in my personal opinion I didn't
want the union, that I did not like the union, I was hurt by
a union before," and added that if a union came into the
plant and he was limited to 40 hours a week he would "have
to leave myself because I couldn't support a family of the
size I got on 40 hours a week." He added that prior to this
meeting he had talked to Kaufman about the Union on
many occasions.
LeBeau related that in late October 1972, while he was in
Monticello, New York, the drive shaft of his truck fell out
as he was going down a hill. He was not given any warning
or discipline concerning this incident. In addition, in March
1973, as he was coming out of New London and while going
up a hill, he lost the drive shaft. He received no disciplinary
action for this incident. According to LeBeau, he has no
prescribed route but is only told where his first stop is and
he chooses his own route. He also related that he ran out of
gas a couple of times because the driver who preceded him
failed to fill the gas tank.
Kaufman testified that Lane's failure to punch out for
lunch was the final incident that occasioned the discharge,
and that Lane had been warned about this previously.
Kaufman also testified that there were three other incidents:
That Lane,visited his wife in the hospital all night on com-
pany time, had failed to follow prescribed routes, and left
two other drivers on a turnpike in Ohio and drove the wrong
truck. Kaufman further testified that Lane had also broken
the rule which required drivers to fill the gas tank when
returning from a trip.
Morin testified that he noticed that Lane had left for
lunch without punching out and reported this to Kaufman.
Monn related that Kaufman told him to bring up Lane's
timecard, but said nothing about the timecards of the two
employees who were with Lane and who also had not
punched out. Morin admitted that he did nothing to Per-
kins, and, in fact, that afternoon he initialed the timecard
of Bougie for not having punched out for lunch. Morin
further admitted that at one time or another, 90 percent of
the truckdrivers left the plant without punching out. Morin
admitted that he caught his brother-in-law, Cote, "a few
times" and that he caught Demand and only told him to
start punching in and out 2 He admitted that no one else had
ever been terminated for this reason.
Shortly after Lane was discharged, Morin told Osborne
and other employees that what had happened to Lane could
happen to them, and he asked the men to punch out and in
for lunch for the time being.
At about 6:30 on the evening of April 11, after he had
returned from a trip to the Boston vicinity, Osborne turned
in his receipts to Morin and testified that Morin "asked me
about the union. I just kind of shrugged my shoulders and
said nothing." He said, "Look, you seen what happened to
Lane, you know, it could happen to other people here too."
Osborne testified that he "just shrugged my shoulders like
I didn't know that much about it and that was it." After
Lane was discharged Osborne passed out some union cards.
On May 17, he passed out some union cards to employees
including Monroe Latham. That evening, he left for Balti-
more and next reported for work on Monday, May 21. His
timecard was not in the rack, and he went to Kaufman's
office. Kaufman, so Osborne related, stated that he would
like to speak to him and Kaufman told him "that he had to
let me to." Osborne asked the reason and Kaufman replied,
"You know the reason." As they walked downstairs out into
the yard, Osborne "asked if it was due to me going to the
Labor Relations Board because of Lane," and Kaufman
said, "No, you know the reason." He was then given his
paycheck and told to get off the premises.
About 10 days before being discharged, Morin advanced
Osborne $40 of which Osborne spent approximately $24. He
turned in the money receipts and Kaufman later came and
gave him $24 and some change, apparently thinking Os-
borne had used his own funds. Osborne told Kaufman that
he did not use his own funds and that Morin had advanced
him $40. Kaufman replied, "All right, keep the change be-
cause I 'll probably be sending you out in the middle of the
night." Thereafter, Kaufman never asked him for a return
of the money. Osborne admitted that he once stopped out-
side his wife's beauty parlor but stated that no supervisor
talked to him about that. At that time, Morin was not a
supervisor, but he told Osborne instead of stopping at his
wife's beauty parlor, he would be better off to stop at a
diner. Osborne admitted that on one occasion he had taken
the wrong truck, and testified that he did so because Lime
had assigned that truck to him. While working for the Re-
spondent, he never got a written or oral warning nor had he
ever been suspended.
Osborne, who began work on Monday, March 12, 1973,
as a driver of both A-frames and trailers, admitted that he
stopped for about 10 minutes at his wife's beauty parlor at
about 12 o'clock, his lunch hour. He stayed there approxi-
mately a half hour and then took his loaded truck to the
destination where he was delivering the glass. Osborne testi-
fied that while traveling on the Connecticut turnpike about
April 3, he stopped at a truckstop and attempted to pick up
a radiator cap, but was told that the truck was too old and
that the establishment did not have a radiator cap. He
turned the truck around and attempted to bring it back with
no water. Osborne related that the truck "blew up" and that
the radiator first boiled over. He stopped in a rest area and
called the Respondent's plant and spoke to Lime. The latter
tolld Osborne to bring the truck back but Osborne stated
that it was not feasible to do so. About 15 or 20 minutes
later, Morin called him and stated that he would obtain a
wrecker which did arrive and brought Osborne's truck in.
On April 18, Osborne made a trip to Baltimore and in
backing a tractor trailer he struck an employee's car.
About the end of April, Osborne went to Rhode Island
in an A-frame and broke some glass, which he left on the
2It should be noted that Demand was subsequently made a foreman edge of the highway.
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After Lane's discharge , Osborne began passing out union
authorization cards . On Thursday, May 17, he gave a card
to Monroe Latham, an employee . Osborne left that evening
for Baltimore . That same afternoon , Morin and Lime had
their customary coffee in the cafeteria . According to Lime,
Morin stated that the Respondent suspected Osborne was
picking up where Lane had left off , namely, passing out
union cards . Morin said that Osborne was being sent out
with an employee, one Russo, who was opposed to the
Union, and that if Osborne engaged in any union activity,
Russo would report it and Osborne would be discharged.
Morro testified that he did not recall having had this conver-
sation , but did not say anything about Russo.
On Friday, May 18, Morin and Lime had their customary
coffee about 4 o'clock and, according to Lime, Morin said
that Latham had had an argument with Kaufman in the
morning and had shown a union card to Kaufman. Morin
said that Kaufman and Daily, the plant manager , wanted
to know where the card came from so they could "fire him
too."
Kaufman initially testified that he made the decision to
discharge Osborne on Monday, May 21; later he testified
that he could not recall when the decision was made; he
finally testified that the determination was made on Thurs-
day, May 17. Kaufman did not consult with Morin before
terminating Osborne. He testified that Osborne was dis-
charged for the following reasons: He parked one of
Respondent 's vehicles in front of his wife 's beauty parlor;
he burned out an engine because of lack of water; and
dropped glass on the highway. Kaufman related that the
reason that actually caused Osborne's discharge was that he
failed to "even up" on his expense money and thus owed the
Respondent $ 15.80 . Kaufman admitted that, except for the
expense money, there were no written records of any of
these reasons . He testified that he did not know when the
expense money problem with Osborne began, that Osborne
was never given a written warning for this, and that he
(Kaufman) did not deduct the money from Osborne 's check
as this was done by the payroll department . Kaufman never
inquired as to whether the money could be withheld and
admitted that he continually advanced Osborne money dur-
ing the latter's entire period of employment , and that he did
not remember when he last asked Osborne to repay the
money. Kaufman also testified that on May 17, Osborne
was given an advance to go to Baltimore . Kaufman testified
that he never told Morin to stop advancing money to Os-
borne and that he did not see Osborne on May 17 . Osborne
had never refused to go without advance money and Kauf-
man could not recall if he asked Osborne for the money on
the date of the latter's discharge ; he never attempted to
collect the money at any later time.
Osborne testified that he had received a $40 advance
about 10 days before he was terminated and that he spent
approximately $24 of this and turned in receipts . Kaufman
attempted to reimburse Osborne in cash and Osborne told
Kaufman of the advance and asked what to do with the
remainder . Kaufman replied that he should keep it as he
would probably be sent out in the middle of the night.
Kaufman never asked Osborne to return the money.
On Monday afternoon, May 21, Morin and Lime met in
the cafeteria at approximately 4 o'clock. Morin told Lime
that Osborne had been discharged because of the Union,
but that he had a bad driving record and that was the excuse
the Respondent was going to use . Morin testified that he did
not think he had this conversation with Lime and did not
recall stating that Lane was terminated because of his union
activities.
Late in May, Parkinson changed the payday for the 3-to-
11 p.m. shift from Thursday to Friday. The maintenance
employees were somewhat upset by this as they felt it would
be difficult to cash their paychecks on Saturday . According-
ly, they went to see Parkinson in an attempt to have him
repeal this change . At the end of the meeting , Dupre said,
"What this place needs is a god damn good union."
Early in June , Dupre met with Frank Trojan from the
Glass Blowers Union and asked Trojan to send him some
authorization cards. Dupre received the cards on the Satur-
day before June 11 and, on the latter date , began passing
them out . Within 3 days , he had signed up 25 to 30 employ-
ees. He was the only production or maintenance employee
passing out union cards.
Prior to June 12 , Dupre had never been suspended nor
had he received a written warning. According to David
Hemmeter , the plant engineer , Dupre had been warned sev-
eral times , but there was no record of this.
Dupre worked a regular day on June 13 and had been
given June 14 off in order to,attend his daughter 's gradua-
tion . On June 15 , according to Dupre , he called in at 11:30
in the morning and said he was sick and would not be able
to come to work . Dupre testified that he was called by
Hemmeter on Sunday , June 17 , and told that he was dis-
charged . Hemmeter 's version is that Dupre called in about
2:30 p .m. and that , in essence , Dupre was drunk and unable
to come to work . Hemmeter stated that he made the deci-
sion to discharge Dupree about 5 p .m. and added that
Dupre had had a number of unexcused absences before this.
The report of the Massachusetts Division of Unemploy-
ment Security indicated that Hemmeter had previously tes-
tified that Dupre was discharged for not reporting to work
on Saturday, which was Dupre's,day off.
The record shows that employees with attendance records
much worse than that of Dupre were not discharged. Thus,
Richard Hatfield , who was rehired on May 26, had a contin-
uous record of taking off one day a week without permis-
sion . Moreover, he seldom called in. Terry Donovan,
general foreman of insulating and previously in production
control, explained that Hatfield was a very capable employ-
ee and, therefore , his absences were tolerated even though
Hatfield "fouled things" up by not reporting to work.
Richard Maynard worked in the same department and on
the same shift as Dupre, and was hired after Dupre. May-
nard had been given a 3-day suspension on April 27, be-
cause he did not appear for an assigned shift and failed to
notify anyone of his absence. Maynard's attendance record
for May 19 through October 6 shows numerous and repeat-
ed absences and lateness . Hemmeter testified that Maynard
had a series of absences after this, but they were all excused.
However, Hemmeter admitted that he had no records or
any knowledge of why Maynard was absent on any given
date and he did not know if Maynard was frequently late.
Maynard was never warned , suspended, or discharged after
GLASS GUARD INDUSTRIES, INC. 293
May 27 3 Some of the reason for Maynard's "excused" ab-
sences were taking his wife to the doctor and dentist, going
to the dentist himself, making car payments and coming in
late because the baby was colicky. Hemmeter admitted he
only asked Maynard on one occasion to try to arrange these
appointments and payments during nonwork time, and
Maynard testified that he did not try to change the time of
these appointments.
Concluding Findings
Upon the entire record I am convinced that the Respon-
dent terminated Lane, Osborne, Harvard, and Dupre be-
cause of their union and concerted activities, and, in
addition, engaged in an aggressive antiunion campaign,
principally through Morin. When Lane began passing out
authorization cards on April 11, Morin and Kaufman
learned of this immediately and, I am convinced, dis-
charged him for what was an admittedly pretextual reason.
As soon as Morin and Kaufman learned, through Latham,
that Osborne was continuing to pass out cards, Osborne was
summarily discharged. Harvard had been the target of sev-
eral instances of conduct violative of Section 8(a)(1) and,
moreover, had made prounion statements to a supervisor.
In addition, he was complaining about the condition of
vehicles and mentioning the Union and the ICC.
Dupre had independently decided that a union was need-
ed and had previously voiced this sentiment to a supervisor.
Dupre passed out his first union card on June 11, received
his first recorded warning on June 12, and was terminated
for not reporting for work on June 15. Two other employees
had worse attendance records than Dupre over a longer
period of time and were not discharged. One of these, May-
nard, worked on the same shift and at the same job as
Dupre. Maynard had previously been suspended by the
Respondent and was described by Hemmeter as young and
inexperienced. However, Maynard was not discharged. Lat-
ham had had an argument with Kaufman that morning and
had shown Kaufman a union card. Morin stated that Kauf-
man and Daily, the plant manager, wanted to know where
the card came from so they could "fire him too." Morin and
Lime then went to Morin's office which was adjacent to the
office of Kaufman. Kaufman and Daily were in the office
and the latter asked Kaufman if he had "gotten anything on
it yet." The three of them then had a conversation in anoth-
er room and, when Morin came back, he told Lime that
"they" wanted to know where the union card came from.
Morin and Lime then went downstairs to talk to Latham.
At this point, Lime, an admitted supervisor, actually saw the
union card. Latham admitted to Morin that he had obtained
the card from Osborne. Morin then stated "we've got him
now even if the set up with Russo doesn't work." Morin
related that Latham did have an argument with Kaufman
but that it was Lime who mentioned the Union card. It is
evident, therefore, that Morin had actual knowledge, by
May 18, that Latham had turned in a union card to the
office and that the card had come from Osborne.
On Saturday, May 19, Morin and Harvard were gathered
3 Indeed, Maynard states that as of the date of his testimony, November
13, he was still staying out of work and reporting late.
in the cafeteria. Morin asked Harvard if anyone was trying
to get a union in, to which Harvard replied in the negative.
Morin also inquired if Harvard had received a union card
and again Harvard stated that he had not. Morin then said
that if a union got in, employees would have to work 7 days
a week to get their 40 hours and there would be no overtime.
Morin inquired if Osborne had anything to do with the
Union and Harvard replied that he did not know. Morin
then stated that it did not matter inasmuch as Osborne was
leaving Monday.
Osborne was hired on March 10 and received an increase
in pay of 25 cents per hour after 30 days. Osborne had not
received any formal warnings or suspensions and Morin
described him as a good worker who would come in when
needed.
On Monday, May 21, Osborne reported for work as usual
and discovered that his timecard was not in the rack. He
then went to Kaufman and inquired about this and was told
that he was discharged. Osborne asked for the reason and
Kaufman replied "you know the reason" and was then giv-
en his paycheck.
III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, have a
close, intimate, and substantial relationship to trade, traffic,
and commerce among the several States, and tend to lead
to labor disputes burdening and obstructing commerce and
the free flow of commerce.
IV THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, it will be recommended that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon
the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Glass Guard Industries, Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. By terminating Paul Francis Lane, Robert Osborne,
Joseph H. Harvard, and Paul Dupre at the Company's
Webster, Massachusetts, plant, on the dates set forth above,
the Respondent violated Section 8(a)(3) and (1) of the Act
and further violated Section 8(a)(1).
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record in the case, and pursuant to
Section 10(c) of the Act, I hereby issue the following recom-
mended:
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER4
Respondent, Glass Guard Industries, Inc., Webster, Mas-
sachusetts , its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Interfering with , restraining , or coercing employees in
the exercise of their rights guaranteed in Section 7 of the
Act, by discharging or otherwise discriminating against any
employee because of his union or concerted activity.
(b) In any other manner interfering with , restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which I find
necessary in order to effectuate the policies of the Act:
(a) Make Paul Francis Lane , Robert Osborne , Joseph H.
In the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102 48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes
Harvard, and Paul Dupre whole for any loss of earnings
suffered by them as a result of the discriminatory action
taken against them.
(b) Preserve, and upon request, make available to the
Board and its agents, for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports and all records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its Webster, Massachusetts, plant, copies of
the attached notice marked "Appendix." Copies of the
notice, on forms provided by the Regional Director, after
being duly signed by an authorized representative of Re-
spondent, shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60 consec-
utive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure
that the notices are not altered, defaced, or covered by any
other material
(d) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
5 In the event that the Board 's Order is enforced by a Judgement of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "