L.O.F. Glass, Inc.

National Labor Relations Board - Board Decisions

Mar 4, 1975

216 N.L.R.B. 845 (N.L.R.B. 1975)

L.O.F. GLASS, INC. 845
L.O.F. Glass, Inc. and United Glass & Ceramic
Workers of North America, AFL-CIO-CLC.
Cases I1-CA-5694 and 1I-RC-3898
March 4, 1975
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On September 30, 1974, Administrative Law Judge
Joseph I. Nachman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief. The Charging Party
filed a reply brief and the General Counsel filed a
brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent L.O.F. Glass, Inc.,
Laurinburg, North Carolina, its officers, agents,
successors , and assigns , shall take the action set forth
in said recommended Order.
IT IS FURTHER ORDERED that the election held on
May 30, 1974, in Case 11-RC-3898 be, and it hereby
is, set aside , and that Case I1-RC-3898 be, and it
hereby is, remanded to the Regional Director for
purposes of conducting a second election.
[Direction of Second Election omitted from publi-
cation.]
credited the General Counsel 's witnesses, his credibility resolutions are
erroneous or extended by bias or prejudice NLRB. v. Pittsburgh
Steamship Company, 337 U S 656 ( 1949).
2 In the section of the Administrative Law Judge 's Decision entitled
"Contentions and Conclusions ," the Administrative Law Judge refers to
"Lowry's interrogation of Bullock as to why he was not wearing a union
button , and why he was being brainwashed into wearing buttons." The
credited evidence, however , reveals that interrogations were directed at
employee Locklear , rather than at Bullock With respect to Bullock, the
credited evidence reveals that Lowry asked him where his union pin was
and if he had signed a union card . This interrogation also violates Sec.
8(a)(1) of the Act . These inadvertent errors are hereby corrected.
DECISION
STATEMENT OF THE CASE
JOSEPH I. NACHMAN, Administrative Law Judge: This
consolidated proceeding tried before me at Laurinburg,
North Carolina, on August 13, 1974, with all parties
present and represented by counsel, involves a complaint
pursuant to Section 10(b) of the National Labor Relations
Act, as amended (herein Act), which as amended at the
trial , alleges in substance that in the course of an
organizational campaign by United Glass and Ceramic
Workers of North America, AFL-CIO-CLC (herein
Union), among the employees of L.O.F. Glass, Inc., at its
Laurinburg, North Carolina, plant (herein Respondent or
Company), the latter interfered with, restrained , or coerced
its employees in the exercise of rights guaranteed them by
Section 7 of the Act. By answer, Respondent admitted
certain allegations of the complaint, but denied the
commission of any unfair labor practice. Consolidated for
trial with the aforesaid complaint is an objection to
conduct affecting the results of an election conducted by
the Board among Respondent's employees.' For reasons
hereafter more fully stated, I find and conclude that the
evidence sustains the material allegations of the complaint,
and that the election referred to should be set aside and a
new election held.
At the trial all parties were permitted to participate fully,
to introduce relevant and material evidence, to argue orally
on the record and to submit briefs. Oral argument was
waived. Briefs submitted by the General Counsel and the
Union, respectively, have been duly considered, but no
brief was filed by Respondent.2 Upon the entire record,
including the pleadings, stipulations of counsel, evidence,
including my observation of the demeanor of the witnesses
while testifying, I make the following:
i Although we agree with the Administrative Law Judge that Schwertfeg-
er's statement to Hart on March 23 . 1974, violated Sec 8 (a)(I)ofthe Act,
we need not decide whether his description of the Union's lawsuit against
Respondent exceeded the bounds of permissible conduct . Indeed , we rely
solely on Schwertfeger's threat of job loss should the employees select the
Union as their bargaining representative
The 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 (1950), enfd . 188 F.2d 362 (C.A 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
Nor do we find merit in Respondent 's contention that, because the
Administrative Law Judge generally discredited Respondent 's witnesses and
216 NLRB No. 151
i The critical events in the representation case , all in 1974, are April 2,
petition filed, April 30, decision and direction of election ; May 29 and 30,
election held : 151 votes for petitioner , 293 against , and 5 challenged ballots,
June 6, objections to conduct affecting results of the election , filed and
served ; July 9 , Regional Director overrules all objections except No. 1,
which , he finds, raised issued best resolved by record testimony, and
consolidates that case with the instant complaint for hearing and decision
The record does not disclose that any request to review the aforementioned
decision was filed with the Board.
2 At the hearing the time for filing briefs was fixed for September 9
Upon timely application by Respondent , this was extended to September
16. On that date I received a letter from counsel stating that due to the
shortness of the extension and the pressure of other business, he would be
unable to file a brief
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT3 of the notice reads:
In late 1973 or early 1974, the Union began a campaign
to organize Respondent 's employees, which culminated in
the representation proceeding above referred to. It is the
General Counsel's contention that in the course of this
campaign Respondent maintained in effect an unlawful
rule prohibiting solicitation or distribution, and engaged in
certain other conduct which interfered with, restrained,
and coerced the employees in the exercise of their Section 7
rights . So much of that conduct as occurred between April
2,4 the date the petition was filed, and May 30, the final
date of the election , which the Board regards as the critical
period, Ideal Electric & Manufacturing Co., 134 NLRB
1275 (1961), and the rule, which was allegedly in effect
during the entire organizational and election period, is
relied on by the Union as the basis for setting aside the
election . The several incidents so relied on are as follows:
A. The Rule
Prior to the commencement of the Union 's campaign,
Respondent promulgated and distributed to each employee
at the time of hire a 26-page pamphlet entitled "Employees
Handbook" which , under the heading "Personal Conduct,"
sets forth rules of conduct for employees while on
company property, and for the violation of which an
employee may be terminated . One of the rules so set forth
prohibits : "Unauthorized solicitations , or distribution of
advertising , personal notices and other literature not
connected with company business-unless approved by
the personnel department."
There is no testimony as to when this handbook was last
distributed to any employee ,5 whether it is posted in the
plant, or that any employee was ever reprimanded for
violating the aforesaid provision . Employee witnesses
called by the General Counsel testified that they discussed
the Union during their lunch and break periods while in
the cafeteria , and that no supervisor ever undertook to
prevent their doing so . Supervisors called as witnesses by
Respondent all admitted that the employees were never
told that any of the provisions in the handbook had been
modified or superseded , or that its provisions were no
longer in effect . On the contrary , all supervisors , including
Personnel Director Fulton testified that the "Handbook"
remains in effect , and that no notice was given employees
that the same has in any way been modified or superseded.
On February 21, Respondent mailed to each employee
and posted on its bulletin board what has come to be
known as the "Serious Harm Notice ."e The last paragraph
AS IN OTHER MATTERS AFFECTING YOUR WORK, NO
EMPLOYEE WILL BE ALLOWED TO CARRY ON UNION
ORGANIZING ACTIVITIES ON THE JOB . ANYBODY WHO
DOES SO AND WHO THEREBY NEGLECTS HIS OWN WORK
OR INTERFERES WITH THE WORK OF OTHERS WILL BE
SUBJECT TO DISCHARGE.
B. Other Interference, Restraint, and Coercion
In addition to the no-solicitation rule in the "Employee
Handbook," which the General Counsel contends per-
meates the entire organizational period, he also relies on a
number of additional incidents , occurring before, during,
and after the critical period, as violations of Section 8(a)(1)
of the Act. These are:
1. Preceding the critical period
(a) Employee Thomas Bullard credibly testified that, on
a day in February , Supervisor Buddy Bell7 engaged him in
conversation in the plant , and stated that he (Bell) had
heard that a number of employees had signed union cards,
and asked whether most of those signing were White,
Black , or Indian . Bullard replied that most were Black. Bell
then asked if Bullard had signed a union card , and the
latter replied that he had.8
(b) Bullard also credibly testified that about mid-March
he had been wearing a union button in the plant for some
period, and was approached in his work area by Supervisor
Lowry who asked where his (Bullard's) union pin was.
Bullard replied that he had one in his shirt and another in
his locker . Lowry then asked if Bullard had signed a union
card . Bullard did not reply .9
(c) In late March employee James Locklear went to
Supervisor Lowry's office. At the time Locklear was
wearing two or more union buttons . As Locklear entered
the office, Lowry asked why he (Locklear) was wearing the
union buttons . Locklear replied that he could not discuss
the matter because he was on duty , but that there was a lot
he could tell him. A day or two later Lowry came to
Locklear's work area where he asked Locklear why the
latter was being brainwashed into wearing union buttons.
Locklear replied that he was wearing the union buttons
because he thought the Union was a good thing. Lowry
then stated that the Company had spent a great deal of
money to provide jobs for the employees at the Laurinburg
plant, and that the employees should not fool with the
Union for 4 or 5 years. 10
3 No issue of commerce or labor organization is presented. The
complaint alleges and the answer admits facts which establish the elements
referred to. I find those facts to be as pleaded. Also, as indicated, the Board
conducted an election among Respondent 's employees.
+ This and all dates hereafter referred to are 1974. unless otherwise
indicated.
s The latest date shown by the record that the handbook was given to
any employee is August 13, 1973, that being the date Sidney Miller was
hired As the charge herein was filed April 5, 1974, this is clearly beyond the
I0(b) period.
9 The General Counsel conceded on the record that nothing in this
notice was violative of the Act.
r The supervisory status of all management representatives herein
mentioned is admitted in the answer.
s Based on the credited testimony of Bullard. Bell denied that he ever
asked Bullard what employees had signed cards , what race they were, or
whether he (Bullard ) had signed a card. Bell testified that Bullard raised the
question of the Union with him a number of times, but did not state what
was discussed I do not credit Bell's denials.
a Based on the credited testimony of Bullard , and in part the admissions
of Lowry . The latter admitted that he asked Bullard where his union button
was, and that Bullard replied as above indicated Lowry denied, however,
that he asked Bullard if he had signed a union card . I do not credit his
denial.
10 Based on the credited testimony of Locklear , Lowry admitted that
Locklear came to his office wearing the union buttons, and claims that he
(Continued)
L.O.F. GLASS, INC.
(d) About mid-March Supervisor Robert Davis ap-
proached employee Chester Purnell and asked Purnell
whether employee John Davis was in the Union. Purnell
replied that he did not know and did not regard it as of any
concern to him. Bob Davis then stated that John Davis had
better be careful because the Company was going to get rid
of him. I t
(e) On March 23, employee Walter Hart, while at his
work station, was told that he was wanted at the office.
There he found Supervisor Schwertfeger, and a conversa-
tion followed, in the course of which Supervisor Nyquist
entered the office. Schwertfeger admittedly told Hart that
he had learned that Hart had been designated by the
Union as the chief organizer in the tank department, and
asked Hart if this was true,12 with Hart, according to
Schwertfeger, giving a negative reply. The conversation
then turned to a discussion of the benefits Hart had
received from his membership in a railroad union while
employed in that industry, and he made it known that it.
was his expectation that the Union would obtain for
Respondent's employees improvements in wages and job
security. At this point, according to Hart's testimony on
direct, Schwertfeger explained "that if it [the Union] did
come into the plant down here, that there would be roughly
125 people come from Toledo that could possibly come
down here and take over our jobs, [they] have seniority."
Hart also testified that in the course of this conversation
Schwertfeger stated that loyalty to the Company is what
would get the employees merit increases. As Schwertfeger
did not deny that he made this statement, I credit Hart in
that regard. On cross-examination Hart argued that in his
talk with Schwertfeger that latter told him about a lawsuit
pending in the Ohio courts the object of which was to
obtain a ruling that would authorize an arbitrator to award
25 percent of the jobs in the Laurinburg plant to members
of the Union employed in other company plants, principal-
ly the one at Toledo, and that a copy of Exhibit R-1, which
stated the same thing, was posted on the Company's
bulletin board, with another copy thereof received by him
at his home. The pleadings in the case allegedly pending in
the Ohio courts are not before me, nor is there evidence
that the facts stated by Schwertfeger, and set forth in
Exhibit R-1, are in fact true.
Schwertfeger testified that in his conversation with Hart,
the latter stated that one of his reasons for supporting the
Union was that it was promising the employees job
security, and that he therefore asked Hart if he was aware
that if the Union prevailed in its lawsuit and won
certification in the Laurinburg plant, it would mean that if
for some reason the plant was unable to handle the
expanded work force caused by the transfer of 125
employees to the Laurinburg plant, 125 of the present work
force "would have to be laid off." According to Hart, he
then commented that he was going to see the Union's
told him that he looked like a four -star general . Lowry also admitted that he
talked with Locklear several days later , but claims that the conversation
consisted of Locklear talking generally about various plants and unions.
Lowry did not deny that he made the remarks attributed to him by Locklear
that the employees should not seek union representation for 4 or 5 years.
11 Based on the credited testimony of Chester Purnell Bob Davis denied
that he had any conversation of this nature with Purnell , but I do not credit
his denial.
&47
representative that night to try to get back the card he had
signed, and at this point Supervisor Nyquist, who had by
then come into the room commented that he knew that
Hart had the right to get his card back. Hart testified on
direct that it was Nyquist who made the suggestion that
Hart had the right to get his card back, but on cross he
reiterated several times that Nyquist's statement came after
he (Hart) commented that he would go see about getting
his card back. Hart also testified that during the conversa-
tion Nyquist asked him why he wanted to sign a union
card, and what representative of the Union talked to him
about it.
Nyquist denied that he asked Hart if the latter had
signed a union card, but did admit that he asked Hart
"who was the member of the union organizing group who
had talked to him, and he told me that it was Bob
Logan." 13 According to Nyquist, Hart expressed some
doubt as to whether he should have signed the card, that he
then stated that Hart had the right to get the card back if
he wished to do so, and that Hart replied that lie would try
to get it back that night. According to Nyquist his
statement that Hart had the right to get his card back came
before Hart remarked that he would try to get his card
back. Upon this conflicting evidence and largely on the
admissions by Schwertfeger and Nyquist, I find that:
(a) Schwertfeger asked Hart if the latter had been
designated by the Union as the chief organizer in the tank
department, and told Hart that loyalty to the Company is
what would get the employees merit increases.
(b) Nyquist asked Hart why the latter wanted to sign a
union card, and what member of the Union's organizing
group solicited him to do so.
(c) Nyquist suggested to Hart that the latter seek to
withdraw his card, and that he did this before Hart's
comment that he would see the union representative that
evening with the view of obtaining the return of his signed
card.
2. During the critical period
(a) On April 9, Supervisor Robert Davis approached
employee John Davis, in the latter's work area at the plant,
and told the latter that there was to be a meeting after work
that day in Plant Manager Hudson's office, and that he
wanted John Davis to accompany him to the meeting and
tell the plant manager that while he (John Davis) had
signed a union card, he now realized this was a big mistake,
because the Union was not good for him or the plant, and
that if John Davis did this, he (Robert Davis) would not
have to turn his name into the office. John Davis waited
after work for some period, but was not called to the
meeting. The following day Robert Davis told John Davis
that he had met with Plant Manager Hudson and told the
latter that John Davis had changed his mind about the
12 According to Hart , the question Schwertfeger put was whether he
(Hart) was a "hot shot" for the Union . I find it unnecessary to resolve the
conflict deeming it sufficient for the purposes of this decision to assume that
the language Schwertfeger used was as he admitted. Schwertfeger addition-
ally testified that his reason for asking Hart what he did was that he
regarded Hart as a good and conscious worker and could not believe that
the information given him was true.
13 An organizer for the Union.
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union.14
(b) On April 12, "Vote No" stickers were circulated in
the plant.15 Employee Sidney Miller then made a "Vote
Yes" sticker and wore it about the plant. Supervisor
Hambright, observing the sticker Miller was wearing, told
the latter to take it off; that he (Miller) might get into
trouble if he wore it. Hambright admitted that he made the
foregoing statement to Miller, claiming that he did so
because the sticker read "Vote No," and his information
was that Miller was a supporter of the Union According to
Hambright, he never saw Miller with a "Vote Yes"
sticker.16
3 Postcritical period
On August 9, Supervisor Robert Davis talked to
employee Sidney Miller in the plant. Davis stated that he
had talked the preceding day with Plant Manager Fulton
and Shift Foreman Hoffman and that Hoffman had said
that if it were left to him he would fire all employees who
testified at the trial, which was then scheduled for August
13.17
C. Contentions and Conclusions
Upon the basis of the foregoing findings, I find and
conclude that Respondent violated Section 8(a)(1) of the
Act by the following.
1. By maintaining in effect the unduly broad rule
prohibiting solicitation and distribution unconnected with
company business, as the same appears in the "Employees
Handbook." As that rule prohibited all solicitation or
distribution in the plant unless approved by the personnel
department, it constituted an undue restriction on the
organizational right of employees to solicit for and
distribute literature on behalf of a labor organization in
nonwork areas of the plant during their nonworking time.
Stoddard-Quirk Manufacturing Company, 138 NLRB 615
(1962), Firestone Textile Company, 203 NLRB 89 (1973);
Goodyear Tire & Rubber Co., 195 NLRB 33 (1972).
Respondent's basic contention at the hearing 18 was that
assuming the invalidity of the rule as it appears in the
Employee Handbook, its coercive effect was dissipated by
paragraph 6 of "Serious Harm" notice which was posted in
the plant with a copy mailed to each employee, particularly
in view of the fact, as the uncontradicted evidence shows,
the employees exercised their right to discuss the Union
during their nonwork time in nonwork areas of the plant. I
find and conclude that this contention is without merit.
The original rule remains in the handbook, and there was
no notice to employees that it was in any way modified or
rescinded. Indeed, every supervisor who testified, including
Personnel Manager Fulton, said that the entire "Employee
Handbook" is currently in effect, that no notice has been
issued which in any way modified it and that the rule
heretofore quoted from, has been, and remains in effect.
This demonstrates that in the eyes of management, and in
u Based on the credited evidence of John Davis and Sidney Miller who,
in part , corroborates John Davis Robert Davis denied that he made the
statements so attributed to him , but I do not credit his denial
i' There is no evidence to indicate the source of these stickers
is This finding is based on the credited testimony of Miller and the
the eyes of the employees, the invalid rule remains and is
subject to being invoked at any time Respondent might so
decide. The fact that management has not heretofore done
so, and has knowingly permitted employees to engage in
conduct violative of the rule, is irrelevant It is the existence
of the overly broad rule which constitutes the interference
with the organizational right of employees that Section
8(a)(1) of the Act condemns. Leece-Nevelle Company, 159
NLRB 293, 298 (1966), enfd. 396 F.2d 773 (C.A. 5, 1968);
Firestone Textile Company, 203 NLRB 89 (1973); Farah
Manufacturing Co., 187 NLRB 601, 602 (1970), enfd. 450
F.2d 942 (C.A. 5, 1971); N. L. R B. v. McGraw-Edison Co.,
469 F.2d 189, 192, 193 (C.A. 8), enfg. 192 NLRB 995
(1971). As the court of appeals said in McGraw-Edison,
supra, in holding that a notice of rule change posted on the
bulletin board, coupled with lack of enforcement of the
illegal rule, was not sufficient to dissipate the effect on the
employees of the unlawful rule (469 F.2d at 192): "Suffice
it to say that it was reasonably foreseeable the invalid rule
. . would deter solicitation by the employees, and this is
enough to constitute an unfair labor practice."
Accordingly, I find and conclude that by maintaining in
effect the rule in its "Employee Handbook" which
prohibits employees from soliciting or distributing in
nonworking areas of the plant during their nonworking
time, Respondent interfered with, restrained, and coerced
its employees in the exercise of their organizational rights,
and thereby violated Section 8(a)(1) of the Act.
2. By Bell's interrogation of Bullock as to whether the
latter had signed a union card, and the race of others who
had done so; Lowry's interrogation of Bullock as to why he
was not wearing a union button, and why he was being
brainwashed into wearing union buttons; Robert Davis'
interrogation of Purnell regarding the membership of John
Davis in the Union; Schwertfeger's interrogation of
employee Hart as to whether the latter was the Union's
chief organizer in the tank department; as well as Nyquist's
interrogation of Hart as to why the latter wanted to sign a
union card, and what union representative had solicited
him to do so In light of the animus exhibited by
Respondent, as shown by this record, and its other coercive
conduct herein found, this interrogation could have had no
purpose other than to interfere with the employees in the
exercise of their Section 7 rights, and it may be noted that
in no instance did the supervisor involved give the
employee assurance that no reprisal would be visited upon
them or other employees if they proceeded with their
organizational activity. As the Court of Appeals for the
Third Circuit said in Mon River Towing, Inc. v. N.L.R.B.,
421 F,2d 1, 9 (1969):
As the economic dependence of employees on their
employer may cause them to be peculiarly sensitive to
nuances in language which would be lost on a neutral
observer, [the effect of such interrogation] must be
judged from the employee's point of view,
admission by Hambright
it Based on the credited testimony of Miller Robert Davis denied that
he made such a statement , but I do not credit his denial
is As counsel filed no brief, or otherwise indicated his position , I assume
this remains his contention
L.O.F. GLASS, INC.
Or as the Supreme Court expressed the same principle,
"slight suggestions [made by an employer who holds the
power of economic control ] may have telling effect among
men who know the consequence of incurring that employ-
er's strong displeasure" (International Association of Ma-
chinists v. N. L. R. B., 311 U.S. 72, 78 (1940)), and those
suggestions "though subtle, may be as potent as outright
threats of discharge" (N.L.R.B. v. Link-Belt Co., 311 U.S.
584, 600 (1941)).
3. Robert Davis' statement to Purnell , after questioning
him as to whether John Davis was a union adherent, which
I have heretofore found to have been unlawful, that John
Davis had better be careful because the Company was
going to get rid of him. In context this was a threat to
discharge John Davis if he persisted in his union activity.
4. Hambright's direction to employee Miller to remove
the "Vote Yes" sticker the latter was wearing, and telling
Miller that he might get into trouble if he did not do so.
This was clearly interference with Miller's organization
rights protected by Section 7 of the Act.
5. Schwertfeger's statement to employee Hart that
loyalty to the Company is what would get the employees
merit increases . This was not only a promise of benefit to
those employees who abandoned their support of the
Union, but also a threat of reprisal against those who did
not abandon such support.is
6. The statement by Davis to employee Miller on
August 9, that Supervisor Hoffman had said that if it were
left to him he would fire all employees who testified at the
trial of this case. This also was a threat of reprisal against
employees who gave testimony in vindication of their
Section 7 rights. Whether Hoffman in fact made such a
statement is beside the point. The critical factor is that
Davis told Miller that Supervisor Hoffman had so stated.
7. Supervisor Robert Davis' solicitation of employee
John Davis to tell Plant Manager Hudson that he now
realized that he had made a mistake by signing a union
card, so that he (Robert Davis) would not have to turn his
(John Davis') name into the office, as well as the
subsequent statement, to John Davis that he (Robert
Davis) had informed Plant Manager Hudson that John
Davis had changed his mind about the Union. This was
clearly interference with the Section 7 rights of John Davis.
Additionally, by telling John Davis that unless he did as
Robert Davis asked, the latter gave the impression that
Respondent was engaging in surveillance by secretly
probing into the employees' union activities. Commerce
Concrete Company, Inc., 197 NLRB 658, 659 (1972).
8. Schwertfeger's statement to Hart to the effect that if
the Union became the bargaining representative of the
employees at the Laurinburg plant approximately 125 of
such employees would be displaced by members of the
Union working for Respondent at another plant or plants.
This was on its face, a plain threat of job loss if the
employees at the Laurinburg plant selected the Union as
their bargaining representative, and the evidence leaves no
room for doubt that Schwertfeger intended that Hart so
18 1 do not find Lowry's statement to employee Locklear that
Respondent had spent considerable money to provide jobs for the
employees at the Laurinburg plant , and that the employees should not fool
with the Union for 4 or 5 years , to be unlawful because it contained neither
a promise of benefit nor a threat of reprisal, and was therefore protected by
849
understand. Assuming, without deciding, that an employer
may lawfully relate to his employees' action a union has
taken that may bear on their decision as to whether to
select union representation, the basis for this right is that
the employer correctly stated what the Union has done, and
the burden of proof that such condition has been complied
with, rests upon the employer. Sinclair Co. v. N.L.R.B., 395
U.S. 575, 616-620 (1969). In this instant case, Respondent
has wholly failed to establish that Schwertfeger's statement
was in fact true. As heretofore stated, the pleadings in the
case he referred to, are not before me, so I cannot make my
own determination regarding the object of the suit. The
leaflet that Respondent circulated, is its own assertion of
the fact and there is no other evidence to establish that it is
in fact true.20
9. Nyquist's suggestion to Hart that the latter try to
withdraw the card he had signed for the Union. I so
conclude because of my finding that Nyquist by his own
admission, initiated the idea that Hart should try to
withdraw the card he had signed, which constituted
interference with Hart's Section 7 rights. Jai Lai Cafe, Inc.,
198 NLRB 781 (1972), and the cases there cited.
Upon the foregoing findings of fact, and the entire
record in the case, I state the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By the conduct set forth in section C hereof,
Respondent interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed them by
Section 7 of the Act, and thereby engaged in, and is
engaging in unfair labor practices proscribed by Section
8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent interfered with, re-
strained, and coerced its employees in the exercise of rights
guaranteed by Section 7 of the Act, I conclude from the
totality of said unlawful conduct so found that Respondent
should be required to cease and desist from in any manner
interfering with , restraining, and coercing its employees.
N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4,
1941); California Lingerie, Inc., 129 NLRB 912, 915 ( 1960).
REPORT ON OBJECTIONS AFFECTING THE RESULTS
OF THE ELECTION
Having found that by conduct set forth in section C
hereof Respondent, during the critical period, engaged in
Sec 8(c) of the Act.
20 The complaint does not allege , nor did the parties litigate , whether
Exhibit R-l violated Sec. 8(a)(I) of the Act Accordingly, I confined my
finding of violation to Schwertfeger's oral statement.
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct violative of Section 8(a)(1) of the Act, it follows
that the election concluded on May 30 must be set aside,
and I so recommend . Dal-Tex Optical Company, Inc., 137
NLRB 1782 (1962); Reas & McVitty, Incorporated, 155
NLRB 389 (1965); L. B. Foster Company, 168 NLRB 83
(1967), enfd. 418 F.2d (C.A. 9, 1969), cert. denied 397 U.S.
990 (1970); Kaiser Agricultural Chemicals, 187 NLRB 661
(1970), enfd. 473 F.2d 374 (C.A. 5, 1973). As the General
Counsel does not seek a bargaining order in this case,21 it
will be recommended that the election held herein on May
30, in Case I 1-RC-3898 , be set aside and that said case be
remanded to the Regional Director for Region I1 with
directions to conduct a new election at an appropriate
time.22
Upon the foregoing findings of fact and 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
recommended:
ORDER 23
Respondent L.O.F. Glass, Inc., its officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
membership in, sympathies for, activities on behalf of, or
the membership sympathy or activity of any fellow
employee , for United Glass and Ceramic Workers of
North America, AFL-CIO-CLC, or any other labor
organization.
(b) Publishing , maintaining in effect, enforcing or
applying any rule or regulation which prohibits its
employees from distributing literature or soliciting on
behalf of the aforementioned or any other labor organiza-
tion of its employees , in nonworking areas of its plant
during their nonworking time.
(c) Threatening employees with discharge or other
reprisal because of their assistance or support of a labor
organization.
(d) Promising benefits to employees to induce them to
cease supporting a labor organization.
(e) Soliciting employees to withdraw authorization cards
they signed for a labor organization or make statements to
them from which they might conclude that their union
activities are under its surveillance.
(f) Directing employees to cease wearing stickers or other
union insignia , and urging employees to vote for a labor
organization in an upcoming election.
(g) In any other manner, or by any other means,
interfering with, restraining , or coercing employees in the
exercise of their right to self-organization , to form, join, or
assist a labor organization , to bargain collectively through
representatives of their own choosing , and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any and all such activities.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
(a) Forthwith rescind and vacate its plant rule, as the
same appears in its Employee Handbook , to the extent that
it prohibits employees from soliciting or distributing
literature in any nonwork area of its plant during
nonworking time.
(b) Post at its plant in Laurinburg, North Carolina,
copies of the attached notice marked "Appendix." 24
Copies of said notice on forms provided by the Regional
Director for Region 11 after being signed by an authorized
representative, shall be posted as herein provided immedi-
ately upon receipt thereof, and be so maintained for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted . Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material.
(c) Notify said Regional Director, in writing, within 20
days from the date of this Decision, what steps it has taken
to comply herewith.
IT IS FURTHER ORDERED that the election concluded on
May 30, in Case I 1-RC-4898 be , and the same is set aside,
and said case is remanded to the aforesaid Regional
Director to conduct a new election at such time as he
deems that the circumstances permit the employees to
express their free choice regarding the selection of a
collective-bargaining representative.25
21 Indeed, as the Union 's majority status at any material time has not
been established , a bargaining order appears to be inappropriate. J. P.
Stevens and Co., Inc, 157 NLRB 869, 877 (1966).
22 At the trial Respondent contended that as the Union became aware,
prior to the election, of all the unfair labor practices found herein to have
been committed during the critical period, and signed a request to proceed,
it is estopped to rely on that conduct as a ground for setting aside the
election . When asked to supply authority for that proposition , counsel
replied that he did not have such available , but would supply it in a brief if
he found time to file one . As Respondent has filed no brief, or otherwise
communicated to me what he is relying upon, I do not have the benefit of
his position. I am aware , of course , that at one time the Board did apply the
rule counsel contends for. See Aiello Dairy Farms, 110 NLRB 1365, 1367-70
(1954). However , in Bernet Foam Products Co., Inc., 146 NLRB 1277, 1283
(1964), the Board held that "the Aiello decision and subsequent decisions to
the same effect are hereby overruled [emphasis supplied] ." I have not been
cited to , nor has my independent research revealed any case where the
Board has in any way modified or impinged upon its Burnell Foam, rule.
23 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.
24 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."
25 In the event Respondent fails or refuses to comply with the terms of
the order in Case Il-CA-5694, the Regional Director is authorized to
conduct the new election upon written request of the Union . Ideal Baking
Company of Tennessee, Inc., 143 NLRB 546, 554, fn. 9 (1963).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full hearing at which all parties had the opportunity
to present their evidence , it has been decided that we
violated the National Labor Relations Act, and we have
L.O.F. GLASS, INC.
been ordered to post this notice . We intend to carry out the
order of the Board and abide by the following:
The Act gives employees the following rights:
To engage in self-organization
To form, join , or assist any union
To bargain collectively through representative
of their own choosing
To engage in activities together for the
purpose of collective bargaining or other mutual
aid or protection
To refrain from any such activities.
WE WILL NOT in any manner interfere with our
employees in the exercise of those rights . All our
employees are free to become or remain members of
United Glass and Ceram'c Workers, or not to become
or remain a member of that or any other union.
WE WILL NOT coercively interrogate our employees
concerning their membership in, sympathies for,
activities on behalf of, or the membership, sympathy, or
activity of a fellow employee for any union.
WE WILL NOT threaten any employee with discharge
or other reprisal because of their assistance to or
support of any union.
851
WE WILL NOT promise benefits to any employee to
induce them to cease supporting a union.
WE WILL NOT ask our employees to withdraw
authorization cards they may have signed for a union.
WE WILL NOT direct employees to cease wearing
stickers or other union insignia which urges employees
to vote for a union in an election.
WE WILL NOT make statements to our employees
from which they may reasonably conclude that we are
watching over their union activities.
WE WILL NOT publish, promulgate, maintain in
effect, enforce, or apply any rule or regulation which
prohibits our employees from distributing literature or
soliciting for any union in the nonworking areas of our
plant during their nonworking time. To the extent that
anything on page 9 of your "Employee Handbook" is
to the contrary, the same is revoked and no longer in
effect.
L.O.F. GLASS, INC.