Owens-Corning Fiberglas Corp.

National Labor Relations Board - Board Decisions

May 11, 1964

146 N.L.R.B. 1492 (N.L.R.B. 1964)

1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.election . Aside from what the Board might generally consider equitable ( the exercise
of discretion which the Company's brief generously declares to be mine is in fact
the Board 's), the earlier stipulation may be deemed to be at least partially the basis
of consideration for the later.
Respecting this limiting stipulation , I find that the interference of June 24 pre-
vented free choice by the employees and affected the result of the election. Here
again , quite aside from Exchange Parts and findings of postsettlement violation, the
objections can be sustained for the reason that the Company prevented the necessary
free election laboratory conditions even if its later acts did not constitute interference
within the meaning of Section 8 ( a) (1). I therefore recommend that the objections
to the election be sustained , that the election of July 3, 1963, be set aside, and that
a new election be held at such time as the Regional Director deems that circum-
stances permit the free choice of a bargaining representative.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company set forth in section II , above, occurring in connection
with the operations described in section I, above, have a close, intimate , and sub-
stantial relation to trade, commerce , and traffic among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Company has engaged in and is engaging in certain unfair
labor practices affecting commerce , I shall recommend that it cease and desist there-
from and take certain affirmative action to effectuate the policies of the Act.
It has been found that the Company, by threats, interrogation , surveillance,
promises of benefit , and announcement of such benefits , interfered with, restrained,
and coerced its employees in violation of Section 8(a) (1) of the Act. I shall there-
fore recommend that the Company cease and desist therefrom and from any like
or related conduct.
For the reasons stated in section III , I shall recommend that the Union's objections
to the election be sustained , that the election of July 3, 1963, be set aside, and that
a new election be held.
Upon the basis of the above findings of fact and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Amalgamated Clothing Workers of America, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
2. Bythreats, interrogation , surveillance , promises of benefit , and announcement of
such benefit , in connection with protected concerted activities , thereby interfering
with, restraining , and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act, the Company has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (1) of the Act.
3. The aforesaid labor practices are unfair labor practices within the meaning of
Section 2 ( 6) and (7) of the Act.
[Recommended Order omitted from publication.]
Owens-Corning Fiberglas Corporation and Glass Bottle Blowers
Association of the United States and Canada, AFL-CIO.
Cases Nos. 11-CA-2151, 11-CA-2153, and 11-CA-2171. May 11,
1964
DECISION AND ORDER
On December 26, 1963, Trial Examiner W. Gerard Ryan issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in ttnd was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take certain
146 NLRB No. 173.
OWENS-CORNING FIBERGLAS CORPORATION 1493
affirmative action, as set forth in the attached Trial Examiner's De-
cision. The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint, and recommended that they be dismissed. Thereafter, the
Respondent and the. Charging Party filed exceptions to the Trial
Examiner's Decision and the Charging Party filed a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in these- cases, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations only to the extent consistent herewith.
We fund, in agreement with the Trial Examiner, that the Respond-
ent violated Section 8(a) (1) of the Act by unlawful interrogation and
threats. We find merit, however, in the Charging Party's exceptions
to the Trial Examiner's recommended dismissal of the allegation of
the complaint that three employees, J. T. Brown, David Marshall
Brown, and Joe Frank Turner, were discharged in violation of Section
8(a) (3) of the Act.
The facts, as found by the Trial Examiner or based on undisputed
testimony, are as follows : On about March 1, approximately a month
after the Union began organizing, Plant Manager Schenk made a
speech to three different groups of employees in which he threatened
to close the plant if the Union were successful. The Trial Examiner
found, and we agree, that the Respondent thereby interfered with, re-
strained, and coerced its employees in violation of Section 8(a) (1)
of the Act.
On Friday, March 8, the Respondent posted two notices advising
the forming department employees of the new rules that : (1) no
employee was to permit his Fiberglas bushing to run waste unless he
obtained permission to do so from either Mullinax, the shift foreman,
or McGill, Mullinax's assistant; and (2) no employee was to be in a
;defined restricted area without wearing safety glasses. Both notices
were handwritten and-remained posted for only one shift. In imple-
menting the first of these rules, new operating procedures were insti-
tuted which Supervisor King explained orally to the forming depart-
ment employees on April 9, more than 'a month after the notices were
posted. Although neither notice indicated that a violation thereof
would subject an employee to discharge, all three of the discharges
here in issue were made on the basis of these posted notices, the first
on March 12, a few days after the notices were posted.
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Friday, April 12, Supervisor Houx commented to employee
Alexander, shortly before his shift ended, that the Respondent gave
Alexander two work breaks during his shift, and Houx advised Alex-
ander to use them wisely. On the following Monday, April 15, Alex-
ander went to Houx's office to ask what Houx meant by his remarks of
the previous Friday. Houx was not there, but Supervisor Dottry
was; when Alexander asked him what Houx meant by these remarks,
Dottry's reply was to ask Alexander if he had distributed union liter-
ature in the plant cafeteria on Friday. The Trial Examiner found,
and we agree, that this interrogation by Dottry violated Section 8(a)
(1) of the Act.
The second discharge here in issue occurred on May 15. On May 24,
the Respondent posted a notice, and thereafter mailed copies of the
notice to its employees, warning the employees that, if the Union were
successful, it would not be to their benefit but would "operate to your
serious harm.'; The Trial Examiner found, and we agree, that by this
conduct the Respondent interfered with, restrained, and coerced its
employees in violation of Section 8 (a) (1) of the Act.
J. T. Brown, the first of the three complainants to be discharged,
had worked for the Respondent 11 years, had an exemplary record,
and, in fact, was scheduled, on the very day of his discharge, to attend
a banquet and receive an award from the Respondent for perfect at-
tendance during the past year. Brown was a member of the Union,
had been to the union hall, had had union representatives in his home,
and his two sons, who also worked for the Respondent, were leaders
in the union organizational campaign. While it is not shown that the
Respondent knew of Brown's union membership or activity, it ad-
mittedly knew of the active role in the union campaign carried on by
David Marshall Brown, one of the sons, whose discharge is discussed
below.
On Tuesday, March 12, Supervisor King noticed that J. T. Brown's
machine was running waste, and reported this to Foreman Mullinax.
Neither King nor Mullinax mentioned the matter to Brown. Instead,
Mullinax observed Brown's machine for 50 minutes while it was run-
ning waste, without Brown having obtained his approval, in violation
of the handwritten rule posted for one shift on the previous Friday.
Although Mullinax admitted that his primary duty was to get Brown's
machine operating properly as soon as possible, he testified, that, in this
case, "I felt it was more important to determine what point Mr.
Brown was going to disobey this directive I had posted on the board."
Brown was told that same day by King to report to Mullinax's office,
where Mullinax" questioned him' about violating the rule. Brown,
whose machine had a long history of operating difficulties and was
replaced after his discharge, explained to the Respondent what the
difficulty was, and also mentioned his age, family responsibilities, and
OWENS-CORNING FIBERGLAS CORPORATION .1495
outstanding record with the Respondent but he was discharged never-
theless. Other than the fact that his machine ran waste that day, the
Respondent relied on only one other incident as a cause for Brown's
discharge. Ten days prior to. his discharge, Brown had been repri-
manded for impairing several tubes of Fiberglas by leaving finger-
prints on them. There is no evidence, however, that anyone had been
previously discharged for this offense although the Respondent ad-
mitted that this was a frequent occurrence throughout its operation,
and that, subsequent to Brown's discharge, it sought to eliminate the
problem by having employees remove the tubes with pliers rather than
by hand.
It thus appears that, despite an outstanding record as an employee
for 11 years, Brown was precipitately discharged without any warn-
ing, for the initial infraction of a new rule, which was posted on a
handwritten notice for one shift, and which contained no indication
that an infraction was ground for discharge. In view of these facts,
and of the Respondent's opposition to the unionization of its em-
ployees, its knowledge of the leadership in this activity of one of
Brown's sons, and the circumstances surrounding Brown's discharge
which resembled entrapment, we find that the grounds alleged by the
Respondent for the discharge were pretextual, and that Brown in fact
was discharged in order to discourage the union activities of his son
and other employees, in violation of Section 8 (a) (3) and (1) of the
Act.
David Marshall Brown, referred to in the record as Marshall Brown,
is one of J. T. Brown's two sons who worked for the Respondent, and
the one who was admittedly known by the Respondent to be active in
organizing the Union. He had been employed about 31/2 years, and
had been transferred on March 1 to a higher-paid job. He was dis-
charged.on May 15, 196V
Marshall Brown operated one Fiberglas machine (tank No. 229) by
himself and another machine.(tank No. 228) in conjunction with two
other employees. The three employees had equal responsibility for
No. 228. Tanks Nos. 228 and 229 were separated by a partition which
obscured Brown's view. of tank 228 and made it necessary for him to
walk around the partition in order to. see whether it was in need of
care, and in doing so he had to pass the truck upon which full tubes
were to be racked.
On May 14 King observed that tank 228 was running waste and that
Brown was about to put Fiberglas tubes from machine 229 on the rack.
As set forth by the Trial Examiner, Brown was in fact on his way to
observe tank-228 at this time, and he carried the two full tubes to place
1 We hereby correct the inadvertent error in the Trial Examiner's Decision which refers
to Brown's discharge. on March 15, 1963.
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them on the truck as he passed by. It was by this act of placing the
tubes in the rack that Brown is claimed to have violated the new
instructions.
King in fact reprimanded Brown at the time and told him that,
pursuant to. the oral instructions of April 9, the machine running
waste was to be attended to before the tubes from the other machine
were racked. However, King conceded that while talking to Brown at.
tank 229 he could not see tank 228, and it was possible that at the time
of the reprimand Brown was still at machine 229 and hence might
not have been able to see tank 228. Furthermore, King admitted that
Brown's continuing to rack the tubes before attending to machine
228 would have meant a delay of only 2 or 3 minutes. Nor is it ex-
plained why Brown, who was in fact on his way to tend the second
machine at the time, was held solely responsible for the condition
of tank 228, despite the equal responsibility of the other two employees
to see that machine 228 was operating satisfactorily.
In fact, it is apparent from the physical setup that Brown acted
reasonably in carrying the full tubes with him when he went to tank
228. For, literal observance of the instructions would result in the
inefficient and pointless procedure, before Brown could rack any full
tube from 229, of requiring Brown to walk around the partition, past
the rack, in order to see that machine 228 was not running waste and
then return to machine 229 to pick up the full tubes (again passing
the rack) and walk again to the truck to rack the tubes.
Nevertheless, despite the fact that Brown could not have been aware
of the condition of the second machine when he picked up the full
tubes, and although he must have known that Brown did not know
he had violated any rule, King immediately reported the matter to
Mullinax. Five minutes later, King instructed Brown to report to
Mullinax's office, where Mullinax told Brown he had not been operat-
ing his machine pursuant to the instructions from King. Brown pro-
tested that he thought he had been observing the new instructions.
but Mullinax nevertheless proceeded to make a written report of the
incident and, when Brown refused to sign the report, Mullinax told
him to come back the next day. Brown did so and was discharged.
Brown testified that King told him he could use his own discretion
as to the order in which he attended to the machines. King testified
that Brown was told he must follow the prescribed procedure without
any deviation. Apparently that procedure was to complete the pri-
mary duties on his own machine and then to tend machine 228, for
King testified that at the time the other two employees were still per-
forming primary duties on their own machines. The Trial Examiner
believed that both were testifying as to their true understanding and
that, therefore, the General Counsel had failed to sustain the allega-
tion. Even accepting the truth of their belief and this lack of under-
OWENS-CORNING FIBERGLAS CORPORATION 1'497
standing between the two, we do not agree with the'Trial Examiner's
conclusion. For it is apparent that the-Respondent acted unreason-
ably under the circumstances and seized upon an initial infraction of
a new rule which had been orally promulgated only a short time before
despite the employee's protestation concerning his own understanding
of the operating procedure. An employer may, of course, establish
any procedure it wishes and discharge an employee for any or no
reason except to interfere with union activities of its employees. How-
ever, where an employer applies a rule to make obviously unreasonable
demands and require undue expenditure of time and effort, the in-
ference is inescapable that the avowed object of achieving effective
operations is a mere pretext. Here, the facts; especially where viewed
in light of the Respondent's union animus as demonstrated by its un-
lawful threats and interrogation of employees, suggest only one real
aimn of Respondent's conduct-to rid itself of the leading proponent
in the plant. We are persuaded, on the record, that under other
circumstances Brown would have received a clarifying instruction and
at most a warning concerning future deviations from the procedures.
In light of all the above, we are convinced, and find, that Brown
was discharged because of his leadership in the union campaign, in
violation of Section 8(a) (3) and (1) of the Act.
Joe Frank Turner had been employed by the Respondent about 5
years. The record shows that'he was a member of the Union and
had talked to approximately 50 employees on behalf of the Union.
On June 10, he attended a Board representation hearing with Marshall
Brown and the latter's brother, at which they assisted the Union's
attorney. The Respondent also had a representative at this hearing.
As discussed below, Turner was sent home on June 11, the day after
the hearing, and discharged on the following day. The Trial Ex-
aminer found that the Respondent had no knowledge of Turner's
"union sympathies" at the time of his discharge on the ground that
the Respondent's representative at the Board hearing was its personnel
manager whereas Turner was discharged by other management per-
sonnel. We do not agree with the Trial Examiner's finding concern-
ing knowledge. As a corporate respondent is chargeable with its
agents' knowledge we find, under these circumstances, that the Re-
spondent did have knowledge of Turner's union sympathies.'
On June 11, King saw Turner in a restricted area without his
safety glasses, reprimanded him, and reported the matter to McGill,
Mullinax's assistant. Five minutes later, King returned and told
Turner to report to McGill's office. Turner did so, and' was sent home
and told to report back the next day to see the department head. He
returned the following day, and was discharged, although this was his
initial infraction of the rule concerning the wearing of safety glasses.
See Senco Manufacturing Corp .. 141 NLRB 1306, 1310.
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Turner testified that he had taken off his safety glasses at the
moment in question in order better to remove a glass splinter from
his finger, while King testified that Turner was cleaning his finger-
nails when he reprimanded him. The Trial Examiner failed to recon-
cile this conflict in testimony. In any event, the record shows that
another employee was not discharged after his initial infraction of
the same rule, but was merely suspended, and McGill admitted that
no one else had been discharged for the first violation of this rule
although there was uncontradicted testimony that other employees
were also violating the rule.
Under these circumstances, we find that the Respondent seized on
one of its new rules to rid.itself of a union leader, and, therefore, that
the discharge of Turner was violative of Section 8(a) (3) and (1) of
the Act.
THE RE31EDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the
Act. °
Having found that the Respondent discriminatorily discharged J.
T. Brown, David Marshall Brown, and Joe Frank Turner, and there-
by violated Section 8 (a) (3) and (1) of the Act, we shall order that it
offer them immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority
or other rights and privileges, and make them whole for any loss of
earnings they may have suffered as a result of the discrimination
against them, by payment to each of them of a sum of money equal to
the amount he would have earned from the date of the discrimination
to the date of the offer of reinstatement,' less net earnings during said
periods, backpay to be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90 NLRB
289; and to include the payment of interest at the rate of 6 percent, to
be computed in the manner set forth in Isis Plumbing d Heating Co.,
138 NLRB 716. We shall also order that the Respondent preserve
and, upon request, make available to the Board or its agents, for ex-
amination and copying, all payroll records, social security payment
records, timecards, personnel records and reports, and all other records
necessary to analyze the amounts of backpay due and the right to rein-
statement under the terms of this Decision and Order.
As the unfair labor practices committed by the Respondent are of a
type which strike at the very roots of employee rights safeguarded by
the Act, we shall order that the Respondent cease and.desist from in-
See A.P.W. Products Co., Inc., 137 NLRB 25.
OWENS-CORNING FIBERGLAS CORPORATION 1499
fringing in any manner upon the rights guaranteed its employees in
Section 7 of the Act.
On the basis of the foregoing and the entire record, the Board rejects
the Trial Examiner's Conclusion of Law No. 5, and substitutes in its
place the following :
CONCLUSION OF LAW
5. By discriminating against J. T. Brown, David Marshall
Brown, and Joe Frank Turner with respect to their hire and
tenure of employment, thereby discouraging membership in a
labor organization, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a) (3)
and (1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Owens-Corning Fiberglas Corporation, Anderson, South
Carolina, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Glass Bottle Blowers Association
of the United States and Canada, AFL-CIO, or in any other
labor organization of its employees, by discharging employees,
because of their union membership or activities, or by discriminating
in any other manner in regard to their hire or tenure of employment
or any terms or conditions of employment.
(b) Threatening its employees with plant shutdown, interrogating
them about their union activities, in a manner constituting interfer-
ence, restraint, or coercion, posting and mailing coercive notices to its
employees, or in any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-organiza-
tion, to join or assist the above-named Union or any other labor or-
ganization, to bargain collectively through . representatives of their
own choosing, and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, as
guaranteed in Section 7 of said Act, or to refrain from any or all such
activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to J. T. Brown, David Marshall Brown, and Joe Frank
Turner immediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of earnings
they may have suffered as a result of the discrimination against them,
in the manner set forth in the section of this Decision and Order en-
titled "The Remedy."
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due and
the right to reinstatement under the terms of this Decision and Order.
(c) Post at its plant at'Anderson, South Carolina, copies of the at-
tached notice marked "Appendix."' Copies of said notice, to be
furnished by the Regional Director for the Eleventh Region, shall,
after being duly signed by the Respondent, be posted immediately
upon receipt thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where notices to
employees are customarily posted. The Respondent shall take rea-
sonable steps to insure that such notices are not altered, defaced, or
covered by any other material.
(d) Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to
comply herewith.
MEMBER LEEDOM, dissenting in part :
The circumstances surrounding the discharges of the three com-
plainants are in my opinion suspicious. I cannot, however, particularly
in view of the Trial Examiner's handling of the credibility is-
sues, find in this record sufficient credible evidence to warrant conclud-
ing that the General Counsel has sustained his burden of proof. Ac-
cordingly, I would adopt the Trial Examiner's Decision in toto.
A In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "A Decision and Order" the words "A
Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in Glass Bottle Blowers
Association of the United States and Canada, AFL-CIO, or in
any other labor organization of our employees, by discharging em-
ployees because of their union membership or activities, or by dis-
criminating in any other manner in regard to their hire or tenure
of employment or any term or condition of employment.
WE WILL NOT threaten our employees with plant shutdown, in-
terrogate them about their union activities in a manner constitut-
ing interference, restraint, or coercion, post or mail coercive
notices to our employees, or in any other manner interfere with,
OWENS-CORNING FIBERGLAS CORPORATION 1501
restrain, or coerce our employees in the exercise of their right to
self-organization, to join or assist Glass Bottle Blowers Associa-
tion of the United States and Canada, AFL-CIO, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing,-and to engage in other concerted ac-
tivities for the purpose of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the Act, or to
refrain from any or all such activities.
WE WILL offer immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, to J-., T. Brown, David
Marshall Brown, and Joe Frank Turner, and make each of them
whole for any loss of earnings he may have suffered as a result
.of the discrimination against him.
All our employees are free to become or remain, and to refrain from
becoming or remaining, members of the above-named or any other
labor organization.
OWENS-CORNING FIBERGLAS CORPORATION,
Employer.
Dated---------------- By-------------------------------------
. (Representative ) ( Title) .
NoTE.-We will notify the above-named employees if presently serv-
ing in the Armed Forces of the United States of their right to full
reinstatement upon application in accordance with the Selective Serv-
ice Act and the Universal Military Training and Service Act of 1948,
as amended, after discharge from the Armed Forces.
This notice must remain posted -for 60 consecutive days from the
date of posting and must not be altered, defaced, or covered by any.
other material.
Employees may communicate directly with the Board's Regional
Office, 1831 Nissen Building, 310 Fourth Street, Winston-Salem,
North Carolina, Telephone No. 724-8356, if they have any questions
concerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was held before Trial Examiner W. Gerard Ryan at a hearing in
Anderson , South Carolina, on October 7, 8, and 9 , 1963, on the consolidated com-
plaint of General Counsel and the answer of Owens-Corning Fiberglas Corporation,
herein called the Respondent .' The issue litigated was whether the Respondent
violated Section 8(a)(1) and ( 3) of the Act. The parties waived oral argument.
Only the Union filed a brief.
I The charge in Case No . 11-CA-2151 was filed and served on May 27, 1963 . The charge
in Case No . 11-CA-2153 was filed and served on May 29, 1963 . The charge in Case
No. 11-CA-2171 was filed and served on June- 20, 1963 . The consolidated complaint
issued on August 9, 1963.
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The consolidated complaint alleged, the answer admitted, and I find, that the
Respondent is now and has been at all times material herein a Delaware corporation
with a place. of business at Anderson, South Carolina, where it is engaged in the
manufacture and sale of glass and glass products. During the 12 months preceding
the complaint, the Respondent manufactured, sold, and shipped from its Anderson,
South Carolina, plant finished products valued in excess of $50,000 to points directly
outside the State of South Carolina. I find that the Respondent is now and has
been at all times material herein engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Glass Bottle Blowers Association of the United States and Canada, AFL-CIO,
herein referred to as the Union , is a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The 8(a)(1) violations
The consolidated complaint 2 alleged, the answer denied, and 'I find, that in viola-
tion of Section 8(a)(1) of the Act, the Respondent on or about February 28, 1963,
by W. C. Schenk, its plant manager, threatened and informed employees that if the
Union were, to come in, the Company would- not hesitate to close its doors; that on
or about April 16, 1963, by Chester Dottry, its utility supervisor, interrogated an
employee concerning distribution of union literature; and that on or about May 24,
1963, by W. C. Schenk, its plant manager, posted and thereafter mailed to each
employee a "Notice to all Employees" informing them that it was the Company's
sincere belief that if the Union were to come in at the plant it would not work to
their benefit but in the long run would operate to their serious harm. My reasons
follow:
The Union conducted a campaign to organize the Respondent's employees from
January through August 1963.
Alexander Marshall testified that on or about March 1, 1963, at,a meeting in the
plant cafeteria called by Plant Manager William C. Schenk, at which 250 to 300
employees were present, Schenk stated that the Company had four warehouses that
were full and that if the Union came in they would not hesitate to close down the
plant.
Gustav F. Deering testified that Schenk said the warehouses were full but if a
third party or a union came in they would not hesitate "to curtail." He testified
he does not recall whether Schenk said the Company would not hesitate to shut
down the plant.
Other witnesses testified that Schenk said the plant would close if the Union came
in and others denied that he made such a statement.
Schenk testified that in his speech he spoke of the inventory situation and admitted
that he referred to the possibility that if there was a union contract, there would be
a greater chance of curtailment of business. He denied that he said if the Union
came in the Company would not hesitate to close the plant. He testified that in his
speech he used as an analogy the story of a well-kept barn that had been sturdily
built on solid rock foundation but through the years and neglect was rotted and
blowing away.
Schenk testified that he used a parable to conclude his speech which he described
as follows:
Well, it was the story of the cynic and the wise man and the cynic came to
the wise man and said, "I have a bird in my hand, is the bird dead, or is the bird
alive?" And the wise man he thought, and he said, if I tell him, or tell this
man that the bird is dead he will open his hand and let the bird fly away, so the
wise man thought further, and he said, if I tell this man that the bird is alive,
he will squeeze his hand, and press the life from the bird. . So the wise
man thought further, and so he said to the cynic, "My friend, it is as you will it."
2The General Counsel's motion was granted to delete the allegation in the complaint
that the Respondent threatened them and informed its employees that it was cleaning.out
Its prounlon employees.
OWENS-CORNING FIBERGLAS CORPORATION 1503
Schenk 's own testimony reveals a violation of Section 8(a) (1) of the Act. He
made it clear by parable and example that should the Union be successful , dire con-
sequences and in particular a plant shutdown would follow . The "bird in hand"
story clearly pointed out that ' the employees , by supporting a union , would at the
same time kill the "bird" ( i.e., the Company plant ) that they held in their hands;
but if they rejected the Union , the "bird" would remain alive ( i.e., not shut down).
It was "as they willed it."
Alexander Marshall also testified that on or about April 15 , 1963, Utility Supervisor
Chester Dottry asked Alexander Marshall whether he was or was not in the cafeteria
on Friday passing out union literature , and Marshall denied it. Dottry testified that
he did question Marshall and when Marshall denied it that ended the matter. I find
such interrogation to be interference , restraint , and' coercion violative of Section
8(a)(1) of the Act, since it is directed -towards having an employee identify himself
as being . actively engaged in union activities . Distributing union literature and
soliciting membership on an employee 's own time in nonwork . areas constitute pro-
tected activity . United Aircraft Corporation, 139 NLRB 39, enfd. 324 F. 2d 128
(C.A. 2). There the court held that absent a showing of special circumstances a
rule prohibiting employees from distributing union literature . in the plant cafeteria
on their own time cannot be upheld. In the case at bar there is no evidence that
there was any rule covering such distribution in the cafeteria . either on the. em-
ployees' time or on company time.
On or about May 24, 1963, the Respondent posted at its plant and thereafter
mailed to each employee a "Notice to All Employees " which inter alia, contained the
following:
Since the Union is once more putting on a campaign to get in here ,. a good
many questions have . arisen , with regard to the following , matters. We have
decided to state the' Company's position on these subjects , as clearly as we can
for everybody alike:
(1) This matter is, of course , one of concern to the Company. It is also,
however, a matter of serious concern , to you and our sincere belief is that if
this Union were to get in here it would not work to.your benefit but, in the
long run, would itself operate to your serious harm.
The promulgation of similar notices has been found by the Board to be violative of
Section 8 ( a)(1). White Oak Acres, Inc., 134 NLRB 11 . 45, 1149-1150; Burlington
Industries , Inc., 144 NLRB 245; Surprenant Mfg. Co., 144 NLRB 507. Accord-
ingly, I have found such notice in the instant case to be violative of Section 8(a)(1)
of the Act.
B. The Alleged 8(a)(3) Violations
1. J. T. Brown
The complaint alleged and the answer denied that in violation of Section 8(a)(3)
of the Act on or about March 12 , 1963, the Respondent discharged and thereafter
refused to reinstate J. T. Brown because he engaged in concerted activities with other
employees for the purpose of collective bargaining or other mutual aid or protection.
The General Counsel in an opening statement stated it was his theory that J. T.
Brown 's discharge was discriminatorily motivated because Respondent thought he
was active in a union organizational campaign.
J. T. Brown testified that his sole union activity consisted of signing a union card.
The record does not disclose the date when he signed it , where he signed it, nor
the circumstances surrounding his signing, from which it might be inferred that his
signing the card had come to the knowledge of the Company. There is no evidence
in the record that the Company knew he had signed a card. On the contrary, the
record does show that J. T. Brown's reputation was that of being antiunion. The
record further shows that he is the father of employee James Donald Brown and
David Marshall Brown , both of whom took an active part in the Union 's organiza-
tional activities. David Marshall Brown, as discussed infra, was discharged on
May 15, 1963, but James Donald . Brown was never discharged . The Union ad-
vanced the theory that the Respondent discharged J. T. Brown as a warning to his two
sons to curtail their activity . I cannot accept such theory since the record does not
contain any proof that the Respondent knew that J. T. Brown had signed a union
card . The employees numbered approximately 900 so there is no basis for inferring
that because of the small size of the working force J. T. Brown 's signing a card had
come to the knowledge of the Respondent.
744-670-65-vol. 146-96
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.
The Respondent contends that J . T. Brown was discharged because on or about
March 12 , 1963 , he let Fiberglas run waste for 50 minutes on machine No. 207 with-
out reporting this to his supervisor for approval ; which was contrary to a notice
posted on or about March 8, 1963 , by Supervisor Harold Mullinax which stated:
B Shift 3-8-63
Effective today no one will hang an end for any reason , unless they are given
permission to do so by myself or Tom McGill.
HAROLD MULLINAX.
and when this was considered with another incident that occurred about 1 week or
10 days prior in which J. T. Brown had left his fingerprints on many tubes of Fiber-
glas which impaired the quality of the Fiberglas , it decided to discharge him.
The Union submitted an excellent brief in which it urges in sum that the detailed
analysis of the working problems and the evidence of Respondent 's actions concerned
lead only to the conclusion that the discharge was what may be "colloquially de-
scribed as a frameup" and the reasons advanced are pretextual to cloak a discrimina-
tory discharge.
While an employer must often show a valid business justification to counter evi-
dence of discriminatory motivation , the economic considerations are beside the point
where, as here , there is insufficient evidence to show that the employer had such
knowledge as would permit discrimination . Skyline Homes, Inc. v . N.L.R.B., 323
F. 2d 642 (C.A. 5)..
Wade S. Drake, chief process man of the forming department ( the same depart-
ment in which J . T. Brown worked ) and an admitted supervisor , testified that he was
discharged on or about June 12 , 1963 ; that during the first week in March 1963, he
attended a supervisors ' meeting at which time Forming Supervisor Wainfor said he
had called a meeting because some of the supervisors were not working trying
to keep the Union down because they did not want a union ; and some one
said: "let 's get rid of it," to which Wainfor,replied "if you do that get something on
them that will stand up in court." Wainfor denied making any such statement.
Wainfor testified that what he did say was:
. That I wanted all personnel records kept up to date such as disciplinary
action , and that I wanted the reasons on each shift on good housekeeping, pro-
duction , quality, safety first, and other reasons, for the reason . in January, we
had 80 , 000 pounds of yarn charged back to the forming department for off
quality and when these things happen , you have got to have disciplinary action
and this was the statement that I made.
Wainfor testified further that the subject of the Union was not discussed at the
meeting. -
Wade S. Drake testified further that on the day J . T. Brown was discharged Drake
went into Mullinax 's office and Mullinax said , "I got one today" and when Drake
asked him what he meant , Mullinax replied , "I got old man Brown ." Drake testi-
fied that he remarked , "I did not think he was for the Union" and Mullinax an-
swered , "Yes, he is one of the big workers ." Mullinax denied that he had any con-
versation with Drake . Mullinax testified that he (Mullinax ) was talking to Charles
Webb , C shift forming supervisor , and that Drake was present . Mullinax testified
that he had been scheduled to transfer one of his employees over to C shift and
Webb asked him to confirm the fact that Mullinax was going to send him another
employee. Mullinax replied to Webb in the negative , telling him that Mullinax had
fired one that day sand would need the employee who was intended for transfer on his
own shift . At that point Mullinax testified that Drake spoke up to ask, "Isn't he
the one that was the union observer ?" to which Mullinax answered ., "No, not J. T.,
this was the old man , J. T.," and that it was J . T. Brown's son that was a union
observer.
If true, Drake's testimony would supply the discriminatory motivation for the
discharge of J. T . Brown . I do not credit his testimony . I credit the denials and
explanations by Wainfor and Mullinax of the conversation . The record further
shows that Drake might have been a biased witness against the Respondent in view
of the reasons stated for his discharge in June 1963.
Upon the entire record I find that the General Counsel has failed to prove by the
required preponderance of evidence that the discharge of J. T. Brown was discrimina-
torily motivated in violation of the Act. The complaint to that extent should be
dismissed.
OWENS-CORNING FIBERGLAS CORPORATION
2. 'David Marshall Brown
1505
The complaint alleged and the answer denied that in violation of Section 8(a)(3)
of the Act , on or . about May. 15, 1963, the Respondent discharged and thereafter
refused to reinstate David Marshall Brown ,3 because he engaged in concerted activi-
ties with other employees for the purposes of collective bargaining or other mutual
aid or protection.
Marshall Brown worked as a winder from the time he was first employed on
April 20, 1959 , until October 1962, when he became a trucker . At the time the
trucker 's job became available Marshall Brown applied for it even though it paid less
than did his job as a winder . Brown testified he preferred the trucker 's job at less
pay because it was a cleaner job. He stayed on the trucking job until approximately
March 1 , 1963, when be was returned to work as a winder and he worked as a winder
until his discharge on March 15 , 1963. The circumstances surrounding his removal
from the trucker's job were that Foreman Mullinax received complaints from Frank
Hooper, the shift supervisor for the special fabrication department , that Marshall
Brown was interfering with his employees at work by talking to them when he came
with his truck into Hooper 's department . L. S. (Doc ) Wainfor, the forming super-
visor who was Mullinax 's superior , also reported to Mullinax that Marshall Brown
was interfering with other employees on his rounds. Mullinax then called Brown
into the office and told him about the two complaints he had received that he was
interfering with the employees in the other departments and informed Brown he was
putting him back on the job as a winder where he would have no occasion to go out
to the other departments . Brown testified that Mullinax told him that "As soon
as this -thing is over , that I will put you back to trucking ." Mullinax denied saying
that in those words but he explained that he did tell Brown that as soon as the
Company got the operation back on its feet and when things leveled out again so
that Mullinax would not be entirely confined to his own department but could
observe Brown when he was outside the department , he would consider putting Brown
back on the trucking job. Mullinax was referring to the fact that the Company bad
made studies of the operations in an attempt to improve production through improved
procedures or reexamining existing procedures . Those making such studies at times
worked around the clock for 24 hours and were referred to as the "task force."
The record shows that the Respondent was fully aware of Marshall Brown's
sympathies and activities on behalf of the Union . For example , David King, chief
process man and supervisor of winders and slivers , testified on cross-examination
that the union campaign was common knowledge and everybody knew it; and that it
was also common knowledge that he and everyone else knew that Marshall Brown
was for the Union . Brown served as union observer in the 1962 election.
The question presented is whether Marshall Brown was discharged for cause
notwithstanding company knowledge that he was an active union sympathizer, or
whether the reasons for the discharge were pretextual and were seized upon to
cloak a discriminatory discharge in violation of the Act.
On the day before his discharge , Brown was a winder on tank No . 229. He, with
two other winders who were assigned to tanks Nos. 230 and 227 respectively, was in
addition to run tank No. 228 as required . Brown 's job was to take the strand from
the pull roll or sliver handler putting it on the collet tube causing the machine to
wind it onto the forming tube . When the tube was fully wound , he was to doff it and
put it on -a truck bringing empty tubes back to the tank . After the doffing of tubes,
the tubes are racked and put on a truck . In addition , Brown was to look over at
tank 228 and to see whether it was in need of doffing of tubes or any other functions.
Since it is impossible to see tank 228 from tank 229 because of a Fiberglas partition
it was necessary for Brown to walk around the partition to view tank 228. On the
way to view tank 228 he would pass the truck that contained the tubes . On the day
preceding his discharge , Brown was on his way to look at tank No . 228. He carried
two doffed full tubes which he was going to place on the truck on his way to
examine tank 228, since he passed right by the truck . On his way , David King saw
him and told him that tank 228 was "hanging ends" of Fiberglas , needing attention,
and that he had disobeyed operating procedures by racking the tubes before taking
care of tank 228. The Respondent contends that Brown was discharged for failing to
follow the required procedure . These procedural instructions were orally given to
Brown and other winders by King who had received a written outline of the pro-
cedures. Brown testified that this was one of the circumstances concerning which
King had told him he could use his own judgment . King testified that Brown's
independent judgment could be used only in two other circumstances , not present
here.
'Referred to at times In the record and hereinafter as "Marshall Brown."
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the present state of the record I do not believe the situation is presented where
the issue to be resolved (as to whether or not Brown could exercise his own judo
ment) depends upon a credibility finding that either Brown or King is purposely
testifying falsely. The testimony is squarely conflicting and I believe it is of
necessity conflicting because both King and Brown each honestly believes that he:
himself is in good faith in relating his own version. After carefully observing both-
witnesses, King and Brown, I am unable to conclude which is relating the correct
version. In any event, I am satisfied that each one is convinced of the correctness
of his own testimony. In such circumstances I am unable to make any finding that
the Respondent seized upon the situation as a pretext to a discriminatory discharge-
in violation of the Act, when it discharged David Marshall Brown for failing to.
follow prescribed procedure. Accordingly, on the entire record, I find that the-
General Counsel has failed to prove by the required preponderance of the evidence-
that the Respondent was discriminatorily motivated in violation of the Act in dis-
charging David Marshall Brown. The complaint to that extent should be dismissed..
3. Joe Frank Turner
The complaint and the answer denied that in violation of Section 8(a)(3) of the-
Act on or about June 12, 1963, the Respondent discharged and thereafter refused'
to reinstate Joe Frank Turner because he engaged in concerted activities with other
employees for the purpose of collective bargaining or other mutual aid or protection.
The General Counsel in an opening statement stated his theory was that Turner was
discharged because of his activity on behalf of the Union in connection with the-
Union's organizational campaign.
Turner testified that he had been employed for approximately 4 years and 10,
months as a sliver hand at the time of his discharge on June 12, 1963. He testified
that L. S. Wainfor was his supervisor in the forming department and that Harold
Mullinax was his foreman.
On March 5, 1963, Foreman Mullinax posted a handwritten notice on the bulletin
board which read:
B shift
Friday morning (3-8-63) everyone be sure you bring your safety glasses.
to work with you, because effective that day the safety glass policy will be strictly
enforced and anyone found in a restricted area (between the forehearth up-
stairs or down) without safety glasses will be subject to disciplinary action.
HAROLD MULLINAX.
On June 11, 1963, Turner was observed by David King 4 not wearing safety
glasses in the restricted area. King reported this infraction of the rules to McGill,
the shift foreman at that time. Following a conference between T. A. McGill and
James Whitfield, assistant to Forming Supervisor Wainfor, Turner was discharged by
Whitfield upon McGill's recommendation. Whitfield testified that Turner was not
discharged just for the first offense of not wearing safety glasses but this was the last
of accumulated offenses in a short period of time. Turner testified that he signed a
card for the Union and got some others to sign and also talked to other employees
he knew would not sign ; and that in all he contacted about 50 employees. There
is no evidence in the record that the foregoing activity on behalf of the Union by
Turner ever became known to. the Respondent.
Turner further testified that on June 10, 1963, he attended a Board hearing in the
representation proceeding, together with David Marshall Brown and James Donald
Brown, and they sat behind the counsel table and talked with the union attorney
during the hearing. The Respondent personnel manager , W. Rutledge, was present
at that hearing as a witness for the Company. On the next day, June 11, Turner
was observed not wearing his safety eye glasses in a restricted area and was dis-
charged on June 12.
Thus the only evidence in the record tending to show that the Respondent had any
knowledge of Turner's union sympathies is the fact that on June 10, 1963, he at-
tended the Board hearing as above related.
Overcoming whatever inference might be drawn from the fact that Rutledge was
present at the hearing, the record shows that Turner was discharged following a con-
ference between T. A. McGill, chief process man, and James Whitfield. the assistant
to Forming Supervisor Wainfor. McGill recommended Turner's discharge and
Whitfield supported the recommendation. McGill in his testimony denied know-
l King was a process service man who was a supervisor of the winders and sliver
handlers.
THE LORBEN CORPORATION 1507
ing that Turner was prounion and testified that he did not know about the repre-
sentation hearing until 3 weeks after it happened and further testified that he did
-not know Turner had been at the Board hearing. I credit McGill 's testimony.
James Whitfield also testified that he had no knowledge that Turner was with the
union people at the Board hearing and did not know that Turner was a union
sympathizer . I credit Whitfield 's testimony.
Upon the entire record I find that the General Counsel has failed to prove by the
required preponderance of evidence that the discharge of Joe Frank Turner was dis-
criminatorily motivated in violation of the Act. The complaint to that extent should
be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of Respondent set forth 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 thereof.
V. THE REMEDY
In view of the findings set forth above that the Respondent has engaged in unfair
labor practices defined in Section 8(a)(1) of the Act, I shall recommend that Re-
spondent be required to cease and desist therefrom and take such affirmative action
as appears necessary and appropriate to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization as defined in Section 2(5) of the Act.
3. By posting a bulletin board notice and mailing to each employee a notice stat-
ing its position to include a sincere belief that the coming of the Union would work
to employees' serious harm and by the speech in which Respondent warned em-
ployees that it would close the plant if the Union secured representation rights, Re-
spondent engaged in unfair labor practices constituting interference , restraint, and
-coercion as defined in Section 8 (a) (1) of the Act.
4. By interrogating an employee concerning distribution of union literature, the
Respondent engaged in unfair labor practices defined in Section 8(a) (1) of the Act.
5. The Respondent did not violate Section 8(a) (3) of the Act.
The foregoing unfair labor practices affect commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
The Lorben Corporation and Local 1922 , International Brother-
hood of Electrical Workers , AFL-CIO
The Lorben Corporation and Local 1922, International Brother-
hood of Electrical Workers, AFL-CIO. Cases Nos. 2-CA-9365
and O-CA-9475. May 11, 1964
DECISION AND ORDER
On October 25, 1963, Trial Examiner Thomas N. Kessel issued his
Decision in the above-entitled proceedings, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom, and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
146 NLRB No. 174.