LOF Glass, Inc.

National Labor Relations Board - Board Decisions

Aug 25, 1981

257 N.L.R.B. 988 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
LOF Glass, Inc. and United Glass and Ceramic
Workers of North America, AFL-CIO-CLC.
Cases 11 l-CA-9204 and 11-RC-4751
August 25, 1981
DECISION, ORDER, AND
CERTIFICATION OF RESULTS OF
ELECTION
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On February 27, 1981, Administrative Law
Judge William N. Cates issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings, and
conclusions 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
The Objections in Case 11 -RC-4751
Inasmuch as we have adopted the Administrative
Law Judge's overruling of Petitioner's Objections
1, 2, 3, 4, 5, and 6(a) and as all of the remaining
objections to the third representation election of
this proceeding have been previously overruled,
we shall certify the results of the election.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for United Glass and Ce-
ramic Workers of North America, AFL-CIO-
CLC, and that said labor organization is not the ex-
clusive representative of all the employees, in the
unit herein involved, within the meaning of Section
The General Counsel 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 re-
spect 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 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing his findings.
257 NLRB No. 137
9(a) of the National Labor Relations Act, as
amended.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge: This
matter was heard before me in Laurinburg, North Caro-
lina, on January 14, 1981. The charge in this case was
filed by United Glass and Ceramic Workers of North
America, AFL-CIO-CLC, hereinafter the Union or the
Charging Party, on June 10, 1980. The complaint and
notice of hearing was issued by the Regional Director
for Region 11 of the National Labor Relations Board,
hereinafter the Board, alleging that LOF Glass, Inc.,
hereinafter Respondent or the Employer, had violated
Section 8(a)(1) of the National Labor Relations Act, as
amended, hereinafter the Act, by various acts of interfer-
ence, restraint, and coercion of its employees by its su-
pervisors and agents. By telegraphic order dated January
9, 1981, the Board ordered consolidated for hearing with
the complaint herein Objections 1-6(a), inclusive, of ob-
jections previously filed by the Union inasmuch as the
specified objections are also the subject of the unfair
labor practice allegations herein. Respondent filed a
timely answer to the complaint and notice of hearing in
which it denied having violated the Act.
All parties appeared at the hearing and were afforded
full opportunity to present oral and written evidence and
to examine and cross-examine witnesses. Upon the entire
record, together with careful observation of the demean-
or of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is a corporation licensed to do business in
the State of North Carolina, with an office, plant, and
place of business located in Laurinburg, North Carolina,
where it is engaged in the manufacture of glass products.
During the 12-month period preceding issuance of the
complaint herein, Respondent sold and shipped finished
products valued in excess of $50,000 directly to custom-
ers located outside the State of North Carolina. During
the same representative period of time, Respondent re-
ceived at its Laurinburg, North Carolina, plant goods
and raw materials directly from points outside the State
of North Carolina valued in excess of $50,000. The com-
plaint alleges, Respondent admits, and I find that it is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
988
LOF GLASS, INC.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
There have been union activity and campaigns at Re-
spondent's North Carolina location at least since 1979. A
secret-ballot election was conducted at Respondent's
plant under the supervision of the Regional Director for
Region 11 on October 10, 1979. Upon objections filed by
the Union to conduct affecting the results of the election,
a second election at Respondent was ordered, and subse-
quently held on November 5 and 6, 1980. Timely objec-
tions to the conduct affecting the results of that election
were also filed, of which Objections 1-6(a) are consoli-
dated with the hearing herein.
The allegations of the complaint herein grew out of
new employee orientation meetings which were held at
Respondent's location between March 17 and 22, 1980.
Further allegations of the complaint arose from an
employee/applicant job interview conducted by Re-
spondent in April 1980.
The General Counsel, in his complaint, attributes un-
lawful conduct to Personnel Manager Hewitt Fulton and
Assistant Personnel Manager James Stewart. The com-
plaint alleged, Respondent admitted, and I find both of
the named individuals were agents of Respondent and
were supervisors within the meaning of the Act at the
time when they were alleged to have engaged in the
conduct described in the complaint. The specific com-
plaint allegations are summarized and discussed below.
B. The Alleged Violations Attributed to Personnel
Manager Fulton
The General Counsel at complaint paragraphs 8(a),
(b), and (d) t alleged that Respondent through Fulton
threatened employees that, if the plant were unionized,
the Union would take away the rights of employees; in-
terrogated employees regarding their union sentiments;
and threatened employees that unionization would result
in layoffs and strikes. The above-referenced subpara-
graphs of the complaint indicate the alleged misconduct
of Respondent took place on March 19, 1980.2
Counsel for the General Counsel relies on the testimo-
ny of employees Annie V. Bethea and Velois Gions to
establish the violations alleged in paragraphs 8(a), (b),
and (d). As each allegation was alleged to have taken
place in a very limited time frame the same morning, I
am considering the testimony of Bethea and Gions with-
out further dividing or separating it with respect to
either threats, interrogation, or the like.
Both employees Bethea and Gions testified that they
commenced their employment with Respondent on
March 17, 1980, and spent the week of March 17-20 in
orientation training with approximately 30 to 35 other
employees.
Bethea testified that on Wednesday morning, March
19, 1980, Personnel Manager Fulton spoke to the assem-
' Counsel for the General Counsel moved at hearing, and I granted the
motion, to withdraw par. 8(c) of the complaint.
2 Counsel for the General Counsel did not present any evidence with
respect to that allegation in par. 8(b) of the complaint, which plead that
Fulton interrogated employees regarding their union sentiments on May
27, 1980.
bled new employees regarding insurance policies of Re-
spondent, and then read to the employees from Respond-
ent's employee handbook. Each of the employees attend-
ing orientation had been given a copy of the handbook
from which Fulton read. Bethea stated that Personnel
Manager Fulton specifically read to the group "Our Em-
ployee Relationship Philosophy" as contained on page 3
of the handbook and then talked about the Union. Bethea
testified that Fulton asked how many in the meeting had
belonged to a union before. Bethea stated there could
have been some hands raised but, as she was sitting near
the front of the room, she was unable to observe what
the other employees may have done. Bethea further testi-
fied that Personnel Manager Fulton stated: ". .. like, if
the Union comes in that we would have no more open
door policy and that we wouldn't be able to speak for
ourselves because they would always have someone to
speak for us and we would not be able to take our griev-
ance to our foreman or anything like that and that if the
Union comes in, we would have no more open door
policy."
Bethea testified that Personnel Manager Fulton then
told the employees their homes were their private prop-
erty, and he knew of a case where one union organizer
went to a man's house and the home owner put a gun in
the organizer's face and ran him off. Additionally,
Bethea testified that one of the employees in attendance
at the orientation meeting indicated that he was from
Michigan, had belonged to a union there, and, after stat-
ing that, proceeded to tell the other employees the good
points about a union. According to Bethea, Personnel
Manager Fulton tried to talk the employee down.
Employee Gions stated that at the orientation session
on the Wednesday morning in question, after the newly
hired employees had an opportunity to get acquainted,
Personnel Manager Fulton asked if anyone belonged to
the Union and if anyone had ever worked for the Union.
According to employee Gions, three employees attend-
ing the orientation session raised their hands in response
to Fulton's questions.3
Gions testified that Personnel Manager Fulton then
told a story about a union man who had gone to a per-
son's home where the individual had just come from
hunting and had his gun by the door which the individu-
al moved, and upon the union man seeing the gun, he
left the individual's home and did not return. 4
Gions further stated that Personnel Manager Fulton
said: ". . . if the Union comes in that, you know, we
won't be able to speak for ourselves; the Union would
do it." According to Gions, Personnel Manager Fulton
went on to explain: ". . if the Union comes in that,
oh-the Laurinburg plant had been-was able to build a
new part onto their building because they did not have
the Union and that some of the other plants, you know,
wasn't able to get that because they were unionized."
' Gions could not recall which three employees held up their hands in
favor of the Union. Gions testified that no employee at the meeting spoke
in favor of the Union or said that the Union was a good thing.
' Employee Gions acknowledged there was some conversation be-
tween employee Doug Miller and Personnel Manager Fulton about shot-
guns, but she could not recall specifics.
989
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gions testified that other employees that she could
recall being present at this orientation session were
Annie Bethea, Libby Oxendine, Winslow Ratliff, Lisa
Poole, Elaine Malloy, Doug Miller, and John Dunn.
Personnel Manager Fulton testified that Respondent
had a 5-day orientation program for new employees,
wherein the morning hours of each day were generally
spent in classroom activity and the afternoon hours were
spent in the various departments of the plant. Classroom
sessions are conducted by Fulton and Plant Manager
Dean Doren. The frequency of the orientation sessions
depends upon the hiring posture of Respondent. Person-
nel Manager Fulton stated at least two orientation ses-
sions a month were held during the spring of 1980.
Fulton acknowledged that I such week of training was
held the week of March 17, 1980.
Personnel Manager Fulton testified that he was present
and participated in that portion of the week's training
which took place in the morning hours of March 19,
1980. Personnel Manager Fulton stated that he opened
his portion of the presentation by reading to the employ-
ees "Our Employee Relationship Philosophy" set forth
on page 3 of Respondent's employee handbook. 5
Personnel Manager Fulton testified that he did not ask
any employees at any time how they felt about the
Union or whether they had ever been in a union. He
stated that no employee spoke in favor of a union at the
session nor did any employee state that he was from
Michigan and in favor of a union or that unions were
good.
Personnel Manager Fulton testified that employee
Elaine Malloy asked a question concerning what to do if
union people visited her at her home. Fulton told Malloy
and the group, in answer to her question, that their home
was their private property and what they did regarding
any visitor was their own affair-a decision left to each
individual. According to Fulton, employee Doug Miller
spoke up in what Fulton perceived to be a joking
manner, and stated that he (Miller) would run them off
with a shotgun. Fulton replied to Miller, "Well, I've
heard of that happening, but I do not recommend it."
Fulton denied telling any story or making any comment
about a union man going to an individual's home and
being run off by that individual with a shotgun.
Personnel Manager Fulton denied making any com-
ment that Respondent's open door policy would be done
away with or that employees could not come to manage-
ment with their problems if the Union came in. Fulton
stated he was fully aware of the first Board-conducted
election in Case 11-RC-4751 which had been held in
October 1979, and the subsequent setting aside of that
election based on a comment of Plant Manager Doren to
s "Our Employee Relationship Philosophy" set forth in Respondent's
employee handbook touches briefly on a salary concept of pay as op-
posed to "white collar" and "blue collar" classifications. The philosophy
goes on to state that Respondent desires a mutually respectable under-
standing between Respondent and its employees. It also deals with the
question of employees being approached to sign union cards and with in-
dividual employee treatment and their relationship with supervisors.
There is no allegation of the complaint that there is anything unlawful
contained in the printed employee relationship philosophy and, after a
careful reading of page 3 of the employee handbook, I conclude that it
does not contain any unlawful comments.
the effect that, if the Union came in, the employees
would have to deal with Respondent through the Union
and there would be no more open door policy.
Plant Manager Doren testified that he was present
during the time Personnel Manager Fulton made his
presentation on Wednesday, March 19, 1980. Doren's
testimony corroborated the testimony of Fulton in all es-
sential aspects.
Elaine Malloy testified that she commenced work for
Respondent on March 17, 1980, and she attended the ori-
entation session on March 19, 1980, along with employ-
ees Annie Bethea, Velois Gions, and others. Malloy testi-
fied that Personnel Manager Fulton read from Respond-
ent's handbook its philosophy on unions. According to
Malloy, each of those attending the orientation session
had a copy of the handbook at the time Fulton was read-
ing from it. Malloy stated that she asked Fulton what she
could do if the Union came to her home and harassed or
bothered her. Malloy testified that Fulton told her he
would leave it to her either to ask them to leave or to
call the police. Malloy also testified that employee Doug
Miller spoke up and said something about getting a shot-
gun and running them away. According to Malloy, ev-
eryone laughed at Miller's comment. Malloy testified
that Fulton responded to Miller's comment by stating he
would not advise doing what Miller had suggested.
Malloy testified that Fulton never, at any time, asked
any employee if they were in the Union, had been in the
Union, or if they favored the Union. Malloy further testi-
fied that no employee spoke on the subject of the Union
nor did any individual indicate that they were from
Michigan, and for, or in favor of, unions. According to
Malloy, Fulton did not say anything about the open door
policy of Respondent nor did he say that, if the Union
came in, the employees could no longer speak for them-
selves.
Employee Douglas J. Miller testified that he was pres-
ent at the orientation session on the morning of March
19, 1980.6 Miller testified that Fulton read to the new
employees at the orientation session about the philosophy
and management relationship of Respondent. According
to Miller, employee Malloy asked Fulton what could be
done if the Union came to her house and harassed her.
Miller testified that Fulton responded with the comment,
"You can ask them to leave if you don't want them there
and if they won't leave, then you can call the law."
Miller spoke up at this point in the session and said:
"Well, what if I get my shotgun and have them leave?" ?
According to Miller, Personnel Manager Fulton respond-
ed he would not suggest that.
Miller testified that Fulton did not ask any employees
how they felt about a union or whether they had ever
belonged to a union. Miller also testified that no employ-
ee either stood up or held their hand up with respect to
whether they had belonged to a union. According to
6 Miller testified that Annie Bethea and Velois Gions were present at
this meeting.
I Miller testified that there was no story told by anyone about any
union officials going to the home of an individual and that individual
showing them a shotgun and having them leave the individual's resi-
dence.
990
LOF GLASS, INC.
Miller, no employee spoke in favor of a union at the ses-
sion. Miller also stated that no employee indicated that
they were from Michigan and thought unions were a
good thing.
Miller testified that at no time did Personnel Manager
Fulton say anything about Respondent's open door
policy nor did he say that the open door policy of Re-
spondent would be withdrawn and employees could not
deal with management anymore.
The testimony of Fulton, Doren, Malloy, and Miller
was corroborated in all essential aspects by the testimony
of employees Libby Oxendine, Winslow Ratliff, William
Hawkins, John H. Dunn, and Lisa Poole, all of whom
were present at the March 19, 1980, orientation session.
I credit the testimony of Personnel Manager Fulton.
Not only did he impress me as a truthful witness, but his
testimony was also essentially the same as what is con-
tained in Respondent's employee handbook regarding the
employee relationship philosophy of Respondent. All
witnesses acknowledged that Fulton read from the hand-
book. Further, Fulton's testimony is corroborated by that
of employees Malloy and Miller, who I also believe told
the truth. Fulton, Malloy, and Miller's testimony was
corroborated by Doren, Oxendine, Ratliff, Hawkins,
Dunn, and Poole.
I specifically discredit the testimony of employee
Gions because in my opinion she either misunderstood or
was confused with respect to what she thought was said
at the orientation meeting on March 19, 1980. 8 Gions
could remember that Miller and Fulton said something
about a shotgun, which causes me to conclude that
Gions heard what Miller and Fulton testified to was said
and apparently misunderstood what was said. I view
Gions' testimony that some three employees held up
their hands to signify their position on the Union as
being suspect in that she could not recall by name any
who had held up their hands as being for the Union. I
am convinced she could not recall their names because I
am persuaded it did not occur.
I also specifically discredit the testimony of Annie V.
Bethea. Bethea testified that an employee spoke up at the
orientation session stating that they were from Michigan
and in favor of the Union. That aspect of her testimony,
for example, was not even supported by the other wit-
ness (Gions) called by counsel for the General Counsel.
Gions testified that no one spoke in favor of the Union.
Bethea was not a totally unbiased witness in that she ac-
knowledged her sympathies were with the Union, and
that she had been made aware of the fact that the state-
ments attributed to Respondent about its open door
policy caused the first election to be set aside.
I therefore recommend that paragraphs 8(a), (b), and
(d) of the complaint be dismissed in their entirety.
C. The Alleged Violations Attributed to Assistant
Personnel Manager James Stewart
The General Counsel, at paragraphs 8(e) and (f) of the
complaint, alleged that Respondent through Stewart, in
' I base my belief as to her confusion on, among other factors, her tes-
timony that Fulton did not mention a particular type gun in the story she
attributes to him, but she knew it was a shotgun because that is the only
thing anyone would go hunting with.
early April 1980, interrogated a job applicant respecting
the applicant's union sentiments and threatened employ-
ees that Respondent had a bright future only if it re-
mained nonunion.
Counsel for the General Counsel relies on the testimo-
ny of Kenneth Chastain to establish the violations al-
leged in the particular subparagraphs indicated.
Chastain applied for a job at Respondent either at the
end of March or the beginning of April 1980. Chastain
described in detail the procedure he followed in order to
make application for employment at Respondent. Chas-
tain testified that he began his application at the guard-
house and was then escorted to a trailer where he was
met by "an older" person who actually conducted the in-
terview. Chastain stated that the person who interviewed
him introduced himself as Assistant Personnel Manager
Stewart. According to Chastain, Stewart read his appli-
cation and then stated that Respondent had hired a
group of 100 people and the reason they were hiring was
because people had said no to the Union. Chastain testi-
fied that Stewart said the reason Respondent had moved
to the South was because the people stood up to the
Union and that the future was bright, and hiring would
continue as long as Respondent stayed nonunion. Ac-
cording to Chastain, after Stewart finished telling him
about the hiring situation at Respondent he asked, "...
what were my opinions about the Union, had I been in-
volved with the Union . . . ?" Chastain testified that he
told Stewart he had been involved with the Union and
that his experience had been a bad one. Chastain told
Stewart that the particular plant9 where he had worked
moved to Korea, Taiwan, or some third world country
because of a union.
Assistant Personnel Manager James Stewart testified
that he had been in his current position for 8 years and
in that capacity interviewed prospective employees for
Respondent at its Laurinburg, North Carolina, facility.
Stewart testified that it was a known policy of Respond-
ent that the subject matter of unions was not to be dis-
cussed with applicants. Stewart testified that he com-
menced an interview by asking the individual if he was
the person whose name appeared on the application.
Stewart stated he would then ask the individual to tell
him something about himself.
According to Stewart, Chastain told him he had been
working for a company called Scripto in Atlanta and
that it had gone overseas or something. Stewart testified
that Chastain may have said something about a bad expe-
rience with a union. Stewart denied ever asking Chastain
at any time if he was in the Union or if he favored a
union. Further, Stewart denied telling Chastain that Re-
spondent was succeeding only because the employees
had voted against the Union. Stewart testified that he did
not tell Chastain that Respondent was hiring people be-
cause they voted against the Union nor did he say the
future of Respondent would be bright as long as people
continued to stand up to the Union. Stewart stated the
reason he could recall Chastain was that Chastain was a
very talkative individual and he had to hurry him along
9 Chastain indicated on his job application and personally told Stewart
that he had worked for Scripto in Atlanta, Georgia.
991
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because he had approximately 40 other applicants to in-
terview on the occasion of Chastain's interview. Stewart
stated that the interview lasted approximately 8 to 10
minutes.
On cross-examination, Chastain acknowledged that he
had never worked for Scripto in Atlanta, Georgia, nor to
his knowledge had Scripto moved overseas to Taiwan or
Korea. Chastain testified that he had actually worked in
Atlanta for Atlantic Steel which was a unionized oper-
ation. Chastain stated that he lied to Stewart about his
Atlanta employment and acknowledged: "I told him
what he wanted to hear and I was glad I told him that
from what he started to say to me." Chastain also ac-
knowledged that he had said on his work application he
had worked for Scripto even though in fact he never
had. Chastain also acknowledged he had worked as a sal-
aried organizer for the Union for a period of time after
the interview with Stewart; however, at the time of the
hearing herein he stated he was not on the Union's pay-
roll.
Assistant Personnel Manager Stewart impressed me as
an articulate and truthful witness who was also a sea-
soned personnel officer well trained in procedures for
conducting interviews of employee applicants in a lawful
manner. I credit Stewart's version of the events regard-
ing the applicant interview of Chastain. I specifically dis-
credit Chastain's testimony to the contrary. 0
I therefore recommend that paragraphs 8(e) and (f) of
the complaint be dismissed in their entirety.
IV. OBJECTIONS TO ELECTION
The objections herein (Objections 1-6(a), inclusive)
were coextensive with the allegations of the complaint.
Inasmuch as I have found no merit to the unfair labor
practice allegations, I conclude and find that the speci-
fied objections which were based on such alleged mis-
conduct are insufficient grounds to warrant setting aside
the second election, which was held on November 5 and
6, 1980. I therefore recommend that the Board not set
'o The veracity of this witness was greatly diminished by the fact that
he would admittedly lie in order to tell someone what he perceived they
wanted to hear.
aside the election of November 5 and 6, 1980, in Case
Il-RC-4751 based on the allegations raised by Objec-
tions 1-6(a), inclusive. The other additional objections to
the conduct affecting the results of the election are not
before me, and as such I make no recommendation with
respect thereto.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent has not committed unfair labor prac-
tices within the meaning of Section 8(aXl) of the Act by
threatening employees that, if the plant were unionized,
the Union would take away the rights of employees; that
unionization would result in layoffs and strikes; that Re-
spondent had a bright future only if it remained non-
union; or by interrogating its employees concerning their
union membership, activities, or desires.
3. Respondent has engaged in no unfair labor practices
violative of the Act.
4. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
5. Respondent has not engaged in conduct affecting
the results of the second election with respect to Objec-
tions 1-6(a), inclusive, in Case 1 l-RC-4751.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER "
The complaint in Case 11 -CA-9204 is dismissed in its
entirety. Objections 1-6(a), inclusive, in Case I -RC-
4751 with respect to the second Board-conducted elec-
tion are overruled.
" 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
by Sec. 102.48 of the Rules and Regulations, be adopted by the Board
and become its findings, conclusions, and Order, and all objections there-
to shall be deemed waived for all purposes.
992