Harding Glass Industries, Inc.

National Labor Relations Board - Board Decisions

Jan 29, 1975

216 N.L.R.B. 331 (N.L.R.B. 1975)

HARDING GLASS INDUSTRIES , INC. 331
Harding Glass Industries, Inc. and Its Agents Mr.
Vernon Young, Mgr.; Herman Fuller, Cont. Mgr.
and Glaziers & Glassworkers Local Union No. 573.
Case 17-CA-5947
January 29, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS KENNEDY AND PENELLo
after the Union's demand for recognition. To the
contrary, Respondent included the installer manag-
ers in the list of employees to be included in the card
check. Although Respondent made a general refer-
ence to the question of the unit's appropriateness in
its February 4, 1974, letter, we do not believe that its
reference was sufficient to raise a question as to the
installer-managers' inclusion in the unit.
ORDER
On June 27, 1974, Administrative Law Judge
Wellington A. Gillis issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record 1 and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
We agree with the Administrative Law Judge's
conclusion that Respondent could not have reason-
ably doubted the Union's majority status in light of
the card check . Here , Respondent sought the card
check . While the parties may have had some
disagreement initially as to when the card check
should take place , it is clear that the card check was
conducted on February 1 by Father Soltys, a
neighborhood priest , acting as the impartial observer.
Representatives of both Respondent and the Union
participated. After the impartial observer verified
that the Union had authorization cards from a
majority of Respondent's employees , Respondent
had no basis for reasonably doubting the Union's
majority status and accordingly was obligated to
recognize the Union . Fred Snow, et al. d/b/a Snow &
Sons, 134 NLRB 709 (1961).2
We also agree with the Administrative Law Judge
that the inclusion of three supervisory in the unit
sought by the Union is not fatal to the Union's
demand. The question of supervisory status is one of
unit inclusion or exclusion and not one of unit scope.
Here , no question was raised as to the appropriate-
ness of the three-store unit . Nor did Respondent
raise any question as to the inclusion of the installer
managers until the hearing herein, some 3 months
1 We find that references to Leonard Long in the record are meant to
identify Leonard Lorenzen , secretary-business agent of the Painters ' District
Council and Ralph Scalzq 's superior.
9 See also Nation- Wide Plastics Co., Inc., 197 NLRB 996 (1972); Sullivan
Electric Company, I99 NLRB 809 (1972). Respondent's statements indicat-
ing a desire to consult its attorney before actually recognizing the Union do
not alter the fact that Respondent was bound by the results of the card
216 NLRB No. 52
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Harding Glass
Industries, Inc. and its agents Mr. Vernon Young,
Mgr.; Herman Fuller, Cont. Mgr., Omaha, Nebras-
ka, its other officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
MEMBER KENNEDY, dissenting:
I disagree with the conclusion of my colleagues
that Respondent's failure to recognize and bargain
with the Union violated Section 8(a)(5) and (1). I do
so for two fundamental reasons: (1) Respondent
never consented to resolve the question of the
Union's majority status through a third-party card
check, and (2) the Union's demand for bargaining
was made in a statutorily impermissible bargaining
unit.
Respondent is engaged in the operation of three
wholesale and retail automobile glass shops. On
January 31, 1973, Union Business Agent Ralph
Scalzo delivered a letter to Respondent's operations
manager, Vernon Young, demanding that recogni-
tion be extended to the Union in a unit consisting of
"all auto glass installers and installer managers." 3
Scalzo indicated that four of the seven individuals in
the requested unit had executed authorization cards
and that he would expect a reply from Respondent
on the following day. As found by the Administrative
Law Judge, Young indicated that he would be unable
to respond by the next day because "he had not
talked with his attorney, and . . . [he] would be out
of town on the following day."
When Scalzo left, Young attempted to verify the
business agent's claims by telephoning two installers
and asking whether they had signed authorization
check which it had sought and obtained . Unlike our dissenting colleague,
we cannot perceive a legitimate way in which Respondent 's statements in
this regard can be construed so as to suggest that Respondent would not be
bound by the results of the card check which it had requested.
3 As discussed further below the Administrative Law Judge found-and
my colleagues agree-that the "installer managers" are statutory supervi-
sors. The requested unit is therefore inappropriate.
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cards.4 Contrary to fact, each assured Young that
they had not signed cards. Given these assurances,
Young concluded that a card check by an impartial
observer might be desirable. Accordingly, Young
called Scalzo who agreed that such an examination
could be arranged for the following afternoon.
Young initially hesitated over Scalzo's scheduling of
the card check and reiterated his concern that he
would be out of town and would be unable to
contact his lawyer. When Scalzo nevertheless persist-
ed in his request and suggested that Young appoint a
representative to attend the card check, Young
replied, "Well, if you have to have somebody
tomorrow, I suppose Herman Fuller could do it
although he's got nothing to do with the auto glass
shops, but if you just want a body, yes." 5
Young testified that upon reflection he decided to
proceed no further until he had had an opportunity
first to speak with his attorney. Accordingly, Young
testified he called the union offices, explained to
Leonard Lorenzen, a union official, his reluctance to
proceed without legal advice, and received assur-
ances from Lorenzen that the card check could be
postponed from Friday to the following Monday.
While the Administrative Law Judge characterizes
Young's testimony regarding the attempted post-
ponement as being "open to question," 6 it is clear
that in any event the card check took place as
originally scheduled on Friday and in Young's
absence .? Early Friday morning Scalzo called Fuller,
informed him of the time and place of the card
check, and asked whether he would be able to sign
the recognition agreement. According to Scalzo,
Fuller replied, "No, his orders were to verify the
cards and then to contact Mr. Young and Mr. Young
would contact me." The card check was conducted
and all four signatures verified.
When Young returned on Monday morning, he
told Scalzo that he was still unable to reply to the
Union's demand for recognition because he had not
as yet spoken with either Fuller or his attorneys.
When Young finally did discuss the situation with
counsel, the following written response was sent to
the Union:
This is in response to your letter of January 31,
1974, and your request for recognition based
4 No exception was taken to the Administrative Law Judge 's dismissal of
the 8(ax 1) allegation concerning these telephone calls. The Administrative
Law Judge found that Young 's contemporaneous assurances against
reprisal for supporting the Union made the inquiries too insubstantial to
warrant finding an independent 8(aXI) violation.
S Fuller is a "contract salesman" who estimates and bids on jobs from
blueprints . He is not involved in the operation of the auto glass shops.
9 While Young's testimony is uncorroborated , it is also uncontradicted.
Lorenzen was present at all times during the trial and could have been
called to refute Young's assertions if Young's testimony were not true, but
Lorenzen was never called as a witness.
upon a review of cards . We have reviewed the
entire situation and believe it would be best to
request a NLRB election , in order that the matter
be determined in accordance with procedures
established by the federal government . Accord-
ingly, we have directed our attorney to file a RN
[sic] petition with the NLRB.
There is a serious question whether your union
represents a majority of those eligible to vote,
particularly in view of our review of the unit which
the board would find appropriate. In addition, we
have questions concerning the circumstances
under which you sought to have the cards reviewed.
As you were further advised, our contract
manager was not authorized to recognize the
union on behalf of Harding Glass as he was
unfamiliar with the units involved and had
nothing whatsoever to do with them . [Emphasis
supplied.]
On the following day, Respondent filed an RM
petition, and the Union followed suit 3 days later
with an RC petition . The RM petition was dismissed
and the RC petition was withdrawn upon the filing of
the unfair labor practice charges herein.
I am unable to agree with my colleagues that
Respondent 's conduct violated Section 8(a)(5) and
(1). In a number of recent cases, a majority of this
Board has stated that an employer will not be found
in violation of Section 8(a)(5) solely on the basis of
his refusal to accept union-proffered evidence of
majority status other than the results of a Board
election .8 The only exceptions to this principle are
instances in which the employer 's conduct has been
such as to render a free election impossible or
unnecessary-impossible because of the commission
of flagrant unfair labor practices ,9 or unnecessary
because the employer has either discovered majority
support through an employee poll10 or has consented
to an alternative method for establishing the exist-
ence of a majority . '1 Aside from the 8(a)(1) allega-
tion noted above which was dismissed by the
Administrative Law Judge , there is no allegation here
that Respondent has engaged in any unfair labor
practices other than the refusal to recognize the
Union. Nor can it be argued that the limited poll
which Young undertook revealed support for the
7 In view of the conclusions which I reach below , it is unnecessary for me
to rely also upon Respondent's additional defense that the results of the
card check should not be binding in light of the Union 's failure to abide by
its postponement agreement.
9 E.g., Green Briar Nursing Home, Inc., 201 NLRB 503 (1973); Sullivan
Electric Company, 199 NLRB 809 ( 1972), enfd . 479 F .2d 1270 (C.A. 6,
1973); Linden Lumber Division, Summer & Co., 190 NLRB 718 (1971 ), affd.
419 U.S. 301 (1974).
6 N.L.R.B. v. Gissel Packing Co., Inc., 395 U .S. 575 (1969).
10 Sullivan Electric Company, supra
1 1 Snow & Sons, 134 NLRB 709, enfd . 308 F .2d 687 (C.A. 9, 1962).
HARDING GLASS INDUSTRIES, INC. 333
Union-in fact, from all appearances, the poll
indicated that the Union enjoyed no support at all.
I am also of the view that Respondent did not bind
itself to the card check as an alternative method for
establishing the existence of a majority. From the
very outset, Young made it absolutely clear that no
response to Scalzo's demand for recognition would
be forthcoming unless and until he consulted with
counsel. It was for this reason that Young resisted
Scalzo's efforts to both minimize Respondent's reply
time and expedite the card check. Scalzo acknowl-
edged that Young had not agreed to be bound. The
following excerpt from his testimony so indicates:
Q. Did either Young or Fuller ever say what
they would do if a card check showed a majority?
A. He said they would just contact me. He
said he would contact his attorneys and then
contact me the following Monday.
Q. Who said that?
A. Young, Mr. Young said that.
Q. So, he never said he would recognize the
Union?
A. No.
My colleagues make much of the fact that
Respondent sought the card check. Of course
Respondent sought the card check-both employees
contacted by Young contradicted Scalzo's claim that
they had executed authorization cards. But this, of
course , is no way dispositive of the legal issue
presented. For the fact that Young requested the
card check-and might well have agreed to be bound
by the results thereof had it been scheduled at a later
time-in no way alters the essential fact that he did
not agree to be bound by the February 1 card check
without first consulting with counsel . Young agreed
to provide "a body" on February 1 merely as an
accommodation to the persistent demands of Scalzo.
As we explained in Linden Lumber, supra the essence
of our decision in Snow & Sons is "voluntarism"-the
employer has agreed to let its "knowledge" of
majority status be established through means other
than a Board election . In the instant case it is clear
that Young specifically refused to be so bound
without consulting counsel, and the above-cited
testimony of Scalzo indicates that both parties
participated in the card check with that understand-
ing. Accordingly, Respondent was completely within
its rights in insisting upon a Board -conducted
election.
There is a more fundamental reason why the
complaint should be dismissed. We have long
recognized that "the Act does not require [a]
respondent to bargain with respect to an inappropri-
,Ate unit of employees." 12 The demand for recogni-
tion here encompassed a unit of ""all auto glass
installers and installer managers." As noted, neither
the General Counsel nor my colleagues dispute the
Administrative Law Judge's finding that the installer
managers are supervisors within the meaning of the
Act. It follows, therefore, that the Union's demand
was for an inappropriate unit and could under no
circumstances give rise to a bargaining obligation.
My colleagues seek to excuse this deficiency in the
Union's demand by asserting that the supervisory
question "is one of unit inclusion or exclusion and
not one of unit scope." This observation, it seems to
me, is largely irrelevant. For whether the deficiency is
one of unit scope, or one of unit inclusion or
exclusion, the demand is still fatally deficient. In
neither case does the demand give rise to a
bargaining obligation. As the Board observed in
Sportswear Industries, Inc., 147 NLRB 758, 760-761
(1964):
Once having defined the unit it claims to
represent, and having made a bargaining demand
on that basis, the Union has thereby established
the frame of reference for measuring the validity
of its demand. "Such a requirement imposes on
the union representative only the obligation to say
what he means. Failing to do so, [the union]
cannot be considered as having made the sort of
request to bargain which imposes upon an
employer a legal obligation to comply." 13
Nor am I persuaded by the Administrative Law
Judge's "estoppel" theory and reliance on J. H.
Rutter-Rex Manufacturing Company, Inc., 164 NLRB
5 (1967). Respondent did not first question the
appropriateness of the unit at the hearing. In truth,
the unit was immediately placed in issue by Re-
spondent's written reply to the demand for recogni-
tion quoted above.
Having concluded that the Union's demand for
recognition was fatally defective and Respondent's
conduct did not foreclose its right to insist upon a
Board-conducted election, I would reverse the 8(a)(5)
finding and dismiss the complaint in its entirety.
12 Carson Pine Scott & Company, 75 NLRB 1244, 1246 (1948).
13 Citing The C. L Bailey Grocery Company, 100 NLRB 576,579 (1952);
see also Carlton Paper Corporation, Interstate Paper Converting Corp., Better
Methods, Inc., 173 NLRB 153, 155 (1968). This is also the reason why the
Administrative Law Judge's observation that the Union enjoyed I00-
percent support in the smaller unit, which he now finds appropriate, is
irrelevant for purposes of determining Respondent's duty to bargain.
DECISION
STATEMENT OF THE CASE
WELLINGTON A. GILLIS, Administrative Law Judge: This
case was tried before me on May 7, 1974, at Omaha,
Nebraska, and is based on a charge filed on February 13,
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1974, by Glaziers & Glassworkers Local Union No. 573,
hereinafter referred to as the Union, upon a complaint
issued on March 28, 1974, by the General Counsel for the
National Labor Relations Board, hereinafter referred to as
the Board , against Harding Glass Industries , Inc., and its
agents Mr. Vernon Young, Mgr.; Herman Fuller, Cont.
Mgr., hereinafter referred to as the Respondent or the
Company, alleging violations of Section 8(a)(1) and (5) and
Section 2(6) and (7) of the National Labor Relations Act,
as amended (61 Stat . 136), and upon an answer timely filed
by the Respondent denying the commission of any unfair
labor practices.
All parties were represented by counsel and were
afforded full opportunity to examine and cross -examine
witnesses , to introduce evidence pertinent to the issues, and
to engage in oral argument . Subsequent to the close of
hearing, timely briefs were submitted by counsel for the
General Counsel and for the Respondent.
Upon the entire record in this case,' and from my
observation of the witnesses, and their demeanor on the
witness stand , and upon substantial reliable evidence
"considered along with the consistency and inherent
probability of testimony" (Universal Camera Corp. v.
N.L.R.B., 340 U.S. 474, 496), I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a corporation engaged in the
operation of wholesale and retail automobile glass shops at
three locations in Omaha, Nebraska, and Council Bluffs,
Iowa. The Respondent 's annual gross volume of sales
exceeds $500,000, and it annually purchases goods and
services valued in excess of $50,000 directly from sources
located outside the States of Nebraska and/or Iowa. The
Respondent annually sells goods and services valued in
excess of $50,000 directly to customers located outside the
States of Nebraska and/or Iowa. The parties admit, and I
find , that the Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties admit, and I find, that Glaziers & Glasswork-
ers Local Union No. 573 is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Facts
The Respondent , insofar as this proceeding is concerned,
operates three automobile service shops in the Omaha area.
One store is at 90th and J in Omaha and employs one
installer manager, Bruce Starkey , and two auto glass
installers. A second store, known as the downtown store
I The Respondent's motion to correct errors in the transcript of this
proceeding, filed after the close of the hearing with notice to all parties, is
hereby granted . Said corrections are set forth in "Appendix B," attached
hereto [Appendix B omitted from publication.]
2 Jerry Lawrence and Jack Crawford signed their cards on January 23,
Timothy Leonard signed his on January 25, and Neil McDaniel signed his
on the morning of January 31.
located at 24th and Burt , employs one installer manager,
Jerry Townsend, and one auto glass installer . The third
store, located in nearby Council Bluffs, Iowa, employs one
installer manager, John Vinson, and one auto glass
installer . The primary function of the installers is to install
auto glass . The entire three-store operation is headed by
Manager Bernard Young, who maintains his office in
Omaha. One other person, James Daley, employed by the
Respondent primarily as an insurance solicitor, calls on
insurance agents or adjustors to solicit their auto glass
work.
On Thursday, January 31, 1974, Ralph Scalzo, business
representative for the Union, having obtained the signa-
tures of the Respondent's four auto glass installers on
union authorization cards,2 drew up a letter addressed to
Young notifying him that the Union represented a majority
of the Respondent' s auto glass installers and installer
managers , and requesting recognition . The letter read as
follows:
This is to notify you that Local 573 of the Brotherhood
of Painters and Allied Trades, AFO-CIO, now repre-
sents your employees.
All Auto Glass Installers , and Installers Manag-
ers, but excluding office, clerical, professionals,
guards, and supervisors, as defined in the Labor
Management Relations Act, as amended.
By virtue of having in its possession signed and
valid authorization cards of a majority of the
employees in the appropriate bargaining unit
authorizing Local Union No. 573 to act as their
exclusive bargaining representative . We, there-
fore, request that by return letter you recognize
Local Union No. 573 as the exclusive bargaining
representative of your employees, as above
described, so that we may begin to negotiate a
contract at the earliest possible time . We will be
pleased to prove our majority status by presenting
our authorization cards to an impartial neutral
third party mutually agreed upon. In view of our
desire to render immediate protection and assist-
ance to the employees involved, we shall expect
your reply by February 1, 1974.
Scalzo also prepared for signature a Recognition
Agreement, dated January 31, 1974, signifying that the
Employer agrees to recognize the Union as the exclusive
bargaining representative for Auto Glass Installers and
Installer Managers, excluding, inter alia, supervisors .3
Around 2 p.m., Scalzo went to Young's office, where
Young greeted him with the statement, "Hey, I hear you
have been talking to my people." After some discussion,
during which Young questioned the legality of a union
organizing one shop at a time, Scalzo told Young that the
sealed letter which he had handed to him and which Young
3 Subsequent to the close of the hearing , counsel for the Respondent filed
his Motion to substitute the original of G.C. Exhs. 6 and 7 for alleged copies
of said documents which had been received in evidence , said documents
being the recognition letter and Recognition Agreement alluded to above.
The parties having been served and no objection having been raised,
Respondent's motion is hereby granted.
HARDING GLASS INDUSTRIES, INC. 335
had placed in his back pocket was a demand for
recognition and a recognition agreement . When Scalzo
said he expected an answer by the first of February, Young
registered his complaint that that was kind of fast, to hand
him a letter of recognition in the afternoon and then expect
recognition by the next day. Scalzo answered that that was
the way it operates . Young indicated that he did not see
how he could answer by the next day because he had not
talked with his attorney, and that he (Young) would be out
of town the following day.
An hour or so after Scalzo's departure, while at his desk,
Young digested the Union's recognition demand, including
the option of having an impartial observer look at the cards
to see whether the Union in fact had a majority. He then
picked up his telephone and called installer Jerry Lawrence
at the 90th and J store. Young asked Lawrence whether the
Union had approached him about joining, and whether he
had signed the card, to which Lawrence, contrary to the
fact, said that he had not. Young then spoke with Jack
Crawford and asked him if he had been approached by the
Union, to which Crawford, also contrary to the fact,
implied that he had not. Five or ten minutes later, Young
called and talked with both boys again, telling each that he
did not mean to intimidate him, but that the Union had
indicated that it had a majority of cards. Young then told
each boy that if he wanted to join the Union it was okay,
that it was up to him, and that his job was not in jeopardy.
Both Crawford and Lawrence called Scalzo and informed
him of the Young conversation.
Around 4 p.m., Young called Scalzo and, referring to the
recognition letter , told him that he wanted a card check,
that he would like for an impartial observer to look at the
cards . Scalzo asked Young if he had anyone he would like
to use, and, receiving a negative reply , Scalzo suggested
possibly a judge or a priest. Young agreed and Scalzo
indicated that it was too late in the day to set one up, but
that he would do it the next day, that he knew a priest in
the neighborhood. According to Scalzo, Young replied that
that was fine, that he would be out of town but would have
an appropriate list for him and would leave it with his
contract manager, Herman Fuller.4
According to Young, however, Young told Scalzo that it
could not be the next day because he was going to be out
of town and that he would like very much to be present,
that he would not be able to get hold of his lawyer, and
that Scalzo merely was to get back to him after getting the
impartial observer. Young further testified, however, that
Scalzo asked him if he did not have someone else who
could represent him the next day, to which Young replied,
"Well, if you have to have somebody tomorrow, I suppose
Herman Fuller could do it although he's got nothing to do
with the auto glass shops, but if you just want a body, yes."
After hanging up, Young apprised Fuller of the entire
matter, giving Fuller authority to meet with Scalzo and "to
present the impartial observer with the list of names of the
employees of our service shops." Although no specific
names were mentioned , Fuller asked Young if the list
4 Fuller , in fact , is a contract salesman who estimates and bids upon jobs
from blueprints, and who , although working under Young , has no direct
connection with the auto glass shops.
S Unless , as suggested by the Respondent in its brief, Leonard Long is
should include managers , and Young replied that he
assumed so, that the recognition letter included installer
managers.
According to the uncorroborated testimony of Young, he
then went back to his desk and "digested" the Union's
demand letter further, and decided that he better put a stop
to this until he talked with his attorney. Because of the
lateness of the hour and unable to reach his attorney,
around 5 p.m., he called the union hall and talked with a
Leonard Long.5 Young, apprising Long of the matter,
stated that he did not understand why it could not be put
off until Monday. Long assertedly replied that he did not
see any reason why it could not be put off until Monday,
and Young asked Long if he would tell Scalzo. Young,
after hanging up and before leaving his office, assertedly
told Fuller about his conversation with Leonard Long, and
not to worry about it. Whether this asserted attempt by
Young to postpone the card check actually took place is
open to question. In any event, there is no evidence that
Scalzo, who testified that he was in his office until 5:50
p.m., was ever apprised of it. Nor does the conduct of
Fuller the following morning sustain Young's assertion.
That evening, around 7 p.m., Scalzo called Father Soltys,
and arranged for the card check for the following noon. At
8 a.m., on the following morning, Friday, February 1,
Scalzo called Fuller and told him that he had a man to
conduct the card check and that he would be free to do it
around 12 noon. Fuller said that that would be fine, that he
would be there all day. Scalzo asked Fuller if he were able
to sign the recognition agreement, and was told by Fuller,
that he could not, that his orders were to verify the cards
and to contact Young who would then contact Scalzo.
At noon Scalzo and Father Soltys met with Fuller.
Scalzo asked for the employee list. Fuller refused Scalzo
the list, and in turn asked to see the cards. When Scalzo
explained that that was Father Soltys' purpose in being
there, Fuller said that his instructions were to verify the
signatures on the cards against the list of the appropriate
group. After a brief exchange, Fuller produced the list6
comprised of the names of the four installers and three
installer managers, which Scalzo handed to Father Soltys,
along with a sealed envelope containing the cards signed
by the four installers . Father Soltys went into Young's
office where he made telephone calls to the employees.
Father Soltys, unable to reach one card signer, verified
three cards. A short time later, as agreed by Fuller and
Scalzo, Father Soltys, from his rectory called and verified
the fourth card. He then called both Fuller and Scalzo,
advising each of the final results of the card check. Father
Soltys also confirmed his findings by letter, picked up by
Scalzo later that day.
On Monday morning, February 4, by telephone, Young
advised Scalzo that he had not yet talked with Fuller, nor
had he talked with his attorneys. Later in the day, Young
reached his attorney, who, in turn, referred him to the
company attorney in Kansas City. As a result of their
telephone conversation, a letter declining recognition was
the same person as Leonard Lorenzon , identified in the record as secretary-
business agent of the Painters ' District Council, his identity is not revealed.
6 According to the unrefuted testimony of Scalzo, Fuller told him that
Young had actually prepared the list.
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dictated by the attorney over the telephone to Young's
secretary. The letter, dated February 4, 1974, to the Union
from Young, advised as follows:
This is in response to your letter of January 31, 1974,
and your request for recognition based upon a review
of cards. We have reviewed the entire situation and
believe it would be best to request a NLRB election, in
order that the matter be determined in accordance with
procedures established by the federal government.
Accordingly, we have directed our attorney to file a
RN (sic) petition with the NLRB.
There is a serious question whether your union
represents a majority of those eligible to vote, particu-
larly in view of our review of the unit which the board
would find appropriate. In addition, we have questions
concerning the circumstances under which the cards
were signed and circumstances under which you sought
to have the cards reviewed. As you were further
advised, our contract manager was not authorized to
recognize the union on behalf of Harding Glass as he
was unfamiliar with the units involved and had nothing
whatsoever to do with them.
The following day, February 5, 1974, the Respondent filed
an RM petition7 with the Board, setting forth a unit
identical to that which the Union had demanded, except
that it added the classification "solicitor-installer." An RC
petition filed by the Union on February 8, 1974, was
withdrawn and the instant refusal-to-bargain charges were
filed on February 13, 1974.8
Analysis and Conclusions
1. Alleged 8(a)(1) conduct
The complaint alleges that Young's telephone inquiry of
Lawrence and Crawford on January 31 as to whether they
had signed union cards was unlawful. In view of Young's
immediate return call wherein he apprised both boys that
he did not mean to intimidate them, indicated that his
initial call was prompted by the Union's assertion of a card
majority, and assured both employees that they were free
to join the Union if they wished and that their jobs were
not in jeopardy, I find that this inquiry, accompanied by
such assurances, standing alone, is too insubstantial to
warrant the finding of an independent 8(a)(1) violation.9
2. The appropriate unit
As alluded to earlier, at times material hereto, the
Respondent employed four installers, three installer man-
agers, and one person identified as an insurance solicitor.
The record reflects that the four installers are primarily
involved in installing auto glass, that they are paid weekly
and receive overtime pay after 40 hours, and that at each
location they work directly under the installer manager.
With respect to the installer managers,'° the uncontro-
7 Case 17-RM-508.
8 The petition in Case 17-RM-508 was dismissed by the Regional
Director on March 28 , and the Respondent's appeal of that dismissal was
denied by the Board on April 25, 1974.
verted evidence reveals that each is in complete charge of
his branch store and is responsible for the entire day-to-
day operation of the store, including work performance
and the profits for his location, that he is paid a salary
approximating $900 per month and does not receive
overtime, and that, as to benefits, his insurance is entirely
paid by the Company, including health, hospitalization,'
and life insurance. The installer manager operates on a
profit-sharing basis, amounting to 12 percent of salary in
1973, has 2 weeks' vacation, is furnished a company car
with gas and oil paid by the Respondent, may take a day
off as he pleases without approval from Young, possesses
the right to hire and fire on his own and exercises that
right, arranges the work schedules for his installer or
installers , and responsibly directs them in their daily work.
Under these circumstances , and notwithstanding the fact
that he spends approximately 20 to 25 percent of his time
installing glass, I find that installer managers are supervi-
sors within the meaning of the Act and, as such, are
excluded from the appropriate unit.
The insurance solicitor, James Daley, although primarily
engaged in calling upon insurance agents or adjusters,
soliciting their auto glass work for the Respondent's three
shops, also fills in where needed from time to time in the
shops: While he, too, may spend from 20 to 30 percent of
his time installing glass, in all other respects his status
parallels that of the installer managers . Thus, I find that
the insurance solicitor is a supervisor within the meaning of
the Act and, as such, is excluded from the unit.
Consequently, I find that an appropriate unit consists of
the four installers employed by the Respondent, excluding
installer managers and the insurance solicitor.
3. Respondent's refusal to recognize
The General Counsel asserts on the facts herein that the
Respondent has refused to bargain in good faith in
violation of Section 8(aX5) of the Act. The Respondent
defends its refusal to recognize the Union on the ground
that the unit sought was not an appropriate unit because it
included installer managers . Thus, the basic question
raised is whether, under the circumstances herein, the fact
that three of the seven included in the Union's demand for
recognition were de facto 2(11) supervisors is fatal to that
demand. I find that it is not.
Upon receiving the Union's written demand on January
31, Young was well aware that the unit sought included
installers and installer managers and that the Respondent
employed four installers and three installer managers.
Young, as Respondent's top official in the Omaha area,
also was well aware of the functions and duties of both
categories . Without any discussion or raising any questions
concerning the composition of the unit, Young thereafter
called two of his four installers, and ascertained from them,
contrary to the facts, that they had not authorized the
Union.
At this point, it would appear that Young had a good-
faith doubt that the Union did represent a majority of the
B See Skyline Mobile Homes, 200 NLRB 109 (1972).
to These people are also referred to as service managers or shop
managers.
HARDING GLASS INDUSTRIES, INC. 337
employees in the unit sought and therefore was willing to
go to a card check and, in fact, initiated the idea . Although
thereafter , perhaps, having second thoughts , the fact
remains that Young authorized the card check and gave
Fuller, whom I find to have been his agent for such
purposes, authority to meet with Scalzo and the impartial
observer . As a result , the following day, February 1, Father
Soltys conducted the card check , verified the fact that four
employees had signed union authorization cards, and so
notified the Respondent . Thus, at this point , although no
names were mentioned , the Respondent was put on notice
that four of the seven in the unit sought , had signed union
cards.
At this time , with knowledge that the Union did in fact
represent a majority of the seven installers and installer
managers, the Respondent no longer possessed a good-
faith doubt as to the Union 's majority status . I so find. On
February 4, the next working day , the Respondent refused
to abide by the results of the card check , so notified the
Union , and immediately filed an RM petition with the
Board seeking an election in the same unit that the Union
had sought , but adding one additional classification, that
of "solicitor-installer."
The Respondent, at the hearing some 3 months after the
Union's demand for recognition , for the first time
challenged the appropriateness of the unit sought based on
the inclusion of installer managers . In a fact situation not
unlike that before us , the Board in Rutter-Rex,tl adopted
the reasoning of the Trial Examiner , holding in effect that
the Company was estopped to belatedly assert in its brief
the appropriateness of the unit . The Trial Examiner held:
In any event, I find that Respondent did not question
the nature of the demand in general or the unit in
particular when it denied recognition on July 25 (Resp.
Exh. 1), and this issue was first raised in its brief. Cf.
N.L.R.B. v. Austin Powder Company, 350 F .2d 973, 977
(C.A. 6, 1965). Hence , I find that Respondent may not
now belatedly raise these particular issues, for the
reason that if it had timely conveyed its doubt as to the
character of the demand or the appropriateness of the
unit, the Union would have had an opportunity
seasonably to amend its demand and its claimed unit to
conform them to Respondent's objections. Arts &
Crafts Distributors Inc., 132 NLRB 166, 169 (1961).
An application of this principle to the instant situation
requires the same conclusion, particularly in view of the
fact that on February 4 , when the Respondent again
refused to recognize the Union after a card check revealed
a majority showing in the unit sought, the Union in fact
represented 100 percent of the employees in the lessor unit
herein found appropriate.
I rind that the Respondent, on and after February 1,
1974, did not entertain a good-faith doubt of the Union's
majority , that, under the circumstances , the fact that the
unit sought included installer managers is not fatal to the
Union's demand , and therefore, that the General Counsel
has established by a preponderance of the credible
" J. H. Rutter-Rex Mfg . Co., 164 NLRB 5 (1967).
1Y See Snow & Sons 134 NLRB 709 (1961 ); Sakrete of Northern
evidence that the Respondent's refusal to recognize
Glaziers & Glassworkers Local Union No. 573 was not
made in good faith. It follows, and I find, that the Union's
majority status entitles it to be recognized as the exclusive
bargaining agent of all employees in the appropriate unit
herein found appropriate. Accordingly, I find, as alleged,
that the Respondent has refused to bargain within the
proscription of Section 8(a)(5) of the Act.12
Upon the basis of the above findings of fact, and upon
the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Harding Glass Industries , Inc., and its agents, Mr.
Vernon Young , Mgr.; Herman Fuller, Cont. Mgr., is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Glaziers & Glassworkers Local Union No. 573 is a
labor organization within the meaning of Section 2(5) of
the Act.
3. All auto glass installers , but excluding installer
managers , office clerical employees , professional employ-
ees, guards and supervisors as defined in the Act, at the
Respondent 's facilities located at 90th and J, and 24th and
Burt, Omaha, Nebraska, and 614 West Broadway, Council
Bluffs, Iowa, constitute a unit appropriate for purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. Since January 31, 1974, the Union has been, and is
now, the exclusive bargaining representative of all employ-
ees in the appropriate unit within the meaning of Section
9(a) of the Act.
5. By refusing to recognize and to bargain collectively
in good faith with the Union as the exclusive representative
for purposes of collective bargaining of the employees, the
Respondent unlawfully refused to bargain collectively with
the Union in violation of Section 8(a)(1) and (5) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
7. Other than as found , the Respondent has committed
no violations of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation 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.
V. THE REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices, it is recommended that it
cease and desist therefrom and that it take certain
California, Inc., 137 NLRB 1220 (1962), supplemental decision , 140 NLRB
765 (1963), enfd. 332 F .2d 902 (1964), cert . denied 379 U.S. 961 (1965).
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affirmative action which is necessary to effectuate the
policies of the Act.
It having been found that the Respondent unlawfully
refused to bargain , it is recommended that the Respondent,
upon request, bargain collectively with the Union and, if
an understanding is reached , that such understanding be
embodied in a signed agreement.
Upon the foregoing findings of fact, conclusions of law
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 13
The Respondent , Harding Glass , Industries , Inc., and its
agents Mr. Vernon Young, Mgr.; Herman Fuller, Cont.
Mgr., its other officers, agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Glaziers &
Glassworkers Local Union No. 573 as the exclusive
bargaining representative of all employees in the appropri-
ate unit in violation of Section 8(a)(1) and (5) of the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-
named Union as the exclusive representative of the
employees in the above-described unit.
(b) Post in conspicuous places at its two Omaha,
Nebraska , stores , and its Council Bluffs , Iowa , store,
including all places where notices to employees are
customarily posted, copies of the attached notice marked
"Appendix A." 14 Copies of the notice on forms provided
by the Regional Director for Region 17, shall, after being
duly signed by an authorized representative of the
Respondent, be posted by it, as aforesaid, immediately
upon receipt thereof and maintained for at least 60
consecutive days thereafter . Reasonable steps shall be
taken by the Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 17, it
writing, within 20 days from the date of this Order, wha'
steps Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint herein be
dismissed insofar as it alleges independent violations of
Section 8(a)(l) of the Act or any other violation of the Act
not specifically found.
13 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order , and all objections thereto shall be
deemed waived for all purposes.
14 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
Glaziers and Glassworkers Local Union No. 573 as the
exclusive bargaining representative of our employees.
WE WILL, upon request, bargain collectively with the
above-named Union for the following appropriate unit
with respect to rates of pay, wages, hours of work, and
other conditions of employment:
All auto glass installers , but excluding installer
managers , office clerical employees, professional
employees , guards and supervisors , as defined in
the Act, at the Respondent 's stores located at
90th and J, and 24th and Burt, Omaha, Nebraska,
and 614 West Broadway, Council Bluffs, Iowa.
HARDING GLASS
INDUSTRIES, INC.