United L-N Glass, Inc.

National Labor Relations Board - Board Decisions

Nov 21, 1989

297 N.L.R.B. 329 (N.L.R.B. 1989)

UNITED L-N GLASS

329
United L-N Glass, Inc. and International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW). Case
9-CA-24737
November 21, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
HIGGINS AND DEVANEY
On December 29, 1988, Administrative Law
Judge John H West issued the attached decision
The Respondent filed exceptions and a supporting
brief and the General Counsel and Charging Party
filed answering briefs
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, United L-N
Glass, Inc , Versailles, Kentucky, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order, except that the attached
notice is substituted for that of the administrative
law judge
'The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cu . 1951)
We have carefully examined the record and find no basis for reversing
the findings
, In adopting the judge's finding that the Respondent engaged in interro-
gations that violated Sec 8(a)(1) during Niswonger's and Gary Smith's
employment interviews, we note that the Board has long recognized that
an applicant may understandably fear that any answer he might give to
questions about union sentiments posed in a job interview may well affect
his job prospects See Active Transportation, 296 NLRB 431 fn 3 (1989)
An additional circumstance reinforcing the tendency to coerce in the
case of Niswonger was the interviewer's observation that the Respondent
would do everything It could to keep a union out
In light of the judge's finding that Team Leader Matlock, an admitted
supervisor, learned of Niswonger s union activity on the morning of his
discharge, we find It unnecessary to rely on the judge's reference to the
small plant doctrine in this case
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT interrogate job applicants or em-
ployees about union sympathies
WE WILL NOT discharge you or otherwise dis-
criminate in regard to your hire or tenure of em-
ployment or any term or condition of employment
to discourage union activity or concerted protected
activity
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of their rights under Section 7 of the
Act
WE WILL make Benjamin Niswonger whole,
with interest, for any loss of pay he may have suf-
fered by reason of his discharge and will give him
his proper seniority and any other rights or privi-
leges previously enjoyed
WE WILL remove all records kept of Benjamin
Niswonger's activities on September 17, 1987, and
make whatever record changes are necessary to
negate the effect of the disciplinary action taken
UNITED L-N GLASS, INC
Linda B Finch, Esq , for the General Counsel
John T Lovett, Esq and Wells T Lovett, Esq (Lovett &
Lamar), of Owensboro, Kentucky, for the Respondent
Adrienne A Berry, Esq , of Louisville, Kentucky, for the
Charging Party
DECISION
STATEMENT OF THE CASE
JOHN H WEST, Administrative Law Judge On a
charge filed October 15, 1987,' by United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW), a complaint was issued December 3,
alleging that United L-N Glass, Inc violated Section
8(a)(1) and (3) of the National Labor Relations Act (the
Act), respectively, by coercively interrogating employees
about their union sympathies or their union activities and
by unlawfully discharging employee Benjamin Nis-
wonger because he engaged in union activity and con-
certed protected activity Respondent denies that it vio-
lated the Act
A hearing was held in Frankfort, Kentucky, on Febru-
ary 23, 24, and 25, 1988 On the entire record in this
' Unless indicated otherwise, all dates are in 1987
297 51NLRB No 52
330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
case, including my observation of the demeanor of the
witnesses and consideration of the briefs filed by the
General Counsel, the Respondent, and the Charging
Party in late April 1988, I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent, a Delaware corporation, is engaged in the
fabrication of automobile glass components at Versailles,
Kentucky The complaint alleges, the Respondent
admits, and I find that at all times material herein Re-
spondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act and that the UAW has been a labor organization
within the meaning of Section 2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A The Facts
In May 1987, Respondent began to interview appli-
cants for positions at its new facility in Versailles Pro-
duction for sale did not occur at the facility until some-
time in October 1987 Before that, the facility was in a
"training mode" during which time the employees hired,
among other things, learned how the machinery operat-
ed Additionally, since Respondent utilizes a team ap-
proach at the facility, the preproduction phase was also a
penod during which the new employees learned about
this concept Respondent's human resources manager,
Rodney Johnson, explained that the team concept is an
attempt by Respondent
to develop a self-regulated work force
where there's minimum supervision required,
where the teams function as well integrated units
and have the responsibilities distributed amongst
themselves, very little to no direct supervision is
our goal, and very little management
A lot of training, a lot of social skills training has
to go into supporting' this type of an organizational
design 2
Susan Kays, who is the benefits and human resources ad-
ministrator and who interviews applicants for jobs, ex-
plained that in Versailles Respondent does not have time-
clocks, and employees are not docked if they are absent
Kays testified that during the interviewing process what
the team concept entails was explained to applicants
Regarding the interviewing process, Gene Robinson,
Respondent's vice president and general manager, ex-
plained that Respondent was trying to find people who
worked well in a group environment and who could
work with other employees as a team Also, he directed
2 Thomas Matlock, a team leader who is responsible for leading and
training a team and for quality control and scheduling, testified that Re-
spondent s departments are operated as a team of a specified number of
employees who have specific job assignments while they work as a team,
that it is important that the employees work closely together and be able
to communicate with each other, and that many of the decisions which
affect the team, le , shift work and safety rules, are reached by the team
members acting as a committee
Johnson to advise the team leaders what could or could
not be asked during the interview process with respect
to unions and union activity Johnson testified that he
told the team leaders "to avoid questions concerning
unions that might lead someone to think Respondent was
biased one way or another, and whether someone ex-
pressed a union interest or not" At the time, three of
Respondent's team leaders participated in the interview-
ing process, namely Joe Travi, Matlock, and Nate King,
who mdicated that Johnson advised the team leaders not
to ask applicants about unions Plant Superintendent
Thomas (Duke) Stoudt also participated in the interview-
ing process
The first group of employees began working on June
5 They were interviewed for the involved positions in
May 1987 One of those interviewed, Gary Smith, testi-
fied that his first interview was conducted by Johnson,
who asked nothing about unions, but that Stoudt, during
the second interview, asked him, Smith, who "belonged"
to a union at his prior place of employment, how he felt
about a union Gary Smith testified that he told Stoudt
and the other interviewer, Travi, that he, Smith, could
"live with or without a union, it all depended upon what
management said they would do and if they would live
up to what they said they would do" During the inter-
view with Stoudt and Tray', Gary Smith was told he
had the job if he passed the physical
Stoudt testified that he interviewed about 10 or 12 ap-
plicants, that he did not ask any of these applicants how
they felt about unions, that unions came up during two
or three interviews when either an applicant mentioned
or indicated in the application that he had bad experi-
ences with unions at the plant he had worked at, that a
lot of the people hired did come from union plants "but
that wasn't a concern at all during the interview", and
that he did not recall interviewing Gary Smith
Travi did not testify herein
Three of the individuals hired for the first group did
testify about their interviews Betty Rogers testified that
her first interview was with Johnson and she went back
the next day and was interviewed by Tray' and Stoudt,
and that none of the interviewers said anything about
unions Bill Whitaker testified that during his interview
Johnson did not discuss the fact that he, Whitaker, for-
merly belonged to a union Chris Crawford testified that
he was interviewed by Johnson, King, and Tray', and
that unions were never mentioned in any way during the
interviews
The second group of employees hired by Respondent
began working on August 3 Apparently, they were
interviewed sometime in July One of these interviewed
for this group, Niswonger, testified that he had two
preemployment interviews, one with Johnson and an-
other with Stoudt, that during his first interview Johnson
asked him what his feelings were regarding a labor union
and he, Niswonger, said that in some companies they
were needed but that he "hated to see it when some em-
ployees would go to work and they thought that they
did not have to work for their money", and that Johnson
said "that they were going to do everything that they
had to to keep a union out"
UNITED L-N GLASS 331
Johnson testified that he did not tell Niswonger during
his interview that he, Johnson, would do everything he
had to to keep the union out, that he did not ask Nis-
wonger about unions during his interview, that during
the interview Niswonger said that he was unhappy with
the way the union operated at his former employer, that
the only time there was any mention of a third party
during his interviews was if the potential employee
brought it up, and that if the potential employee brought
up a union, it was discussed
Niswonger testified that during his second interview
Stoudt asked him about his, Niswonger's, feelings regard-
ing the union which represented the employees at his
previous employer and he told Stoudt that "he was only
a member because [he] had to be"
Stoudt testified that Niswonger was the one who
brought up the union during his interview in that he said
he had a bad experience with the union at his former em-
ployer, Kuhlman's Electric
Two other employees who were hired in the second
group testified about their interviews, Donnie Gibson
and Kathy Harley Neither one testified that they were
asked about unions during their interviews
William Young, who is an international representative
with the UAW, received a telephone call from Gary
Smith around July 23 Gary Smith was interested in or-
ganizing Respondent Young arranged to meet with
Smith and some of Respondent's employees on July 27
Three of Respondent's employees attended the meeting
According to Gibson, of the 16 employees in the
second group who started working at Respondent on
August 3, 5 were assigned to the cut, break, and grind
(C B G) area, namely, Niswonger, Gibson, Timmy
Thompson, Terrell Royalty, and Glenda Lynn
Young and Niswonger had a conversation in late
August during which the latter indicated that he was in-
terested in organizing for the UAW Niswonger was told
to contact Gary Smith to get an authorization card to
sign and other cards to pass out Also, Niswonger was
advised that Young was going to meet with Respond-
ent's employees on September 9
On September 2, Niswonger contacted Gary Smith
and the former signed an authorization card, General
Counsel's Exhibit 2 Also, Gary Smith gave Niswonger
an unspecified number of authorization cards which he
distributed
Brad Smith, who was hired in the second group, testi-
fied that Niswonger asked him to sign an authorization
card but he told Niswonger that he was not interested in
it at that time, that Niswonger asked him not to say any-
thing to any of the people who were hired in the first
group that went to Canada because Niswonger believed
they were "brainwashed", and that Niswonger "made it
clear not to say anything to anybody, kind of
to keep it to myself, and especially anybody in manage-
ment"
Gibson testified that Niswonger told him that he, Nis-
wonger, supported the Union, that Niswonger shared his
support of the Union with the four other employees who
were hired in the second group and were assigned to the
C B G area, that Niswonger asked the employees in the
second group not to mention his activities to the employ-
ees in the first group because he was afraid they would
go to management over it, that he did not tell anyone in
management about Niswonger's union activity while he
worked for Respondent, that Niswonger said he support-
ed the Union because when he worked at Kuhlman he
made a lot more money, that Niswonger would discuss
the Union with him, Thompson, Royalty, and Lynn as a
group, that he discussed the fact that Niswonger asked
him to sign an authorization card with Harley, and that
at the time there were about 12 people on the C B G
team
Arthur Green testified that he was in the first group
hired, that Niswonger never approached him about the
Union and was not open regarding his union activity,
that nevertheless he found out about Niswonger's union
activity when Gibson, who was in the second group
hired, told him about 3 weeks before Niswonger was let
go, that when Gibson told him about Niswonger's union
activity he, Gibson, also said that Niswonger did not
want the first group to know, that he did not tell anyone
in management about Niswonger's union activity before
he was fired, and that it was not until a day or two after
Niswonger was fired that he, Green, talked to Matlock
about Niswonger's union activity
Harley testified that she discussed Niswonger's union
activity with Royalty, Gibson, Lynn, and Brad Smith,
that she did not believe that this information was shared
with employees in the first group hired by Respondent,
and that Niswonger kept his union support a secret from
5 of the 10 to 12 members of the C B G team, viz,
Green, Rogers, Whitaker, Rodney Robinson, and Craw-
ford 3
Niswonger gave the following testimony regarding the
day following his signing of the authorization card
On the 3rd of September I was standing at the
end of the CBG line and , Duke Stoudt walked out
and up to me and said, well, asked me, "Ben why
did you leave Kuhlman, were you not satisfied
there9" iAnd I said that "I thought that this would be a
better opportunity for me getting in on the ground
floor and having some seniority, but I can see now
that seniority does not matter"
Now, what I was referring to there is an earlier
comment made by Rod Johnson that seniority does
not govern job bids or like shift preference or any-
thing of this nature, that seniority was only taken
into account in a layoff situation So, Duke Stought
[sic] said "You all had a union over there at Kuhl-
man, didn't you9" And I said, "Yes We did"
And he said, "Do you like a union" And I said,
"Well, it's not right when companies won't give
their people breaks and lunch and"—excuse me,
"breaks and lunches like, you know, they were
planning on the relief lunch" I said, "I can't stand
it when this happens and when companies tell you
something and, then, they don't live up to it And
3 According to Harley, the other members of the C B G team on the
day that Niswonger was fired were herself, Betty McDamels, Billy
Thompson, Brad Smith, Gibson, Royalty, and Tun Thompson
332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
what I was referring to there is my higher starting
pay that they had said and then I did not get" I
said, "When these things happen, you do need a
union"
And Duke Stoudt looked at me and said, "Well,"
and walked off and that was the end of the conver-
sation
Stoudt did not specifically testify about this conversa-
tion, except that he indicated that other than his job
interview with Niswonger he never had a conversation
with him dunng the time he was employed at United L-
N except to say hello and on September 17 he reminded
Niswonger to put on his safety glasses
The following day during the question-and-answer
period after the morning meeting, Niswonger asked
Stoudt about the higher starting wage assertedly prom-
ised to some of the employees Also, Niswonger told
Stoudt that he, Niswonger, felt that the employees had
too much responsibility for the pay that they were get-
ting Stoudt assertedly told Niswonger that if he did not
like it he could take a lower paying job Stoudt denied
making this statement Later that morning, after he had
worked approximately 3 hours training on the grinders
with Matlock, Niswonger asked Matlock if he could
have a break and assertedly Matlock replied Iglus is ex-
actly why you don't get to work with me, Ben" Nis-
wonger testified that he was constantly asking supervi-
sion about breaks "almost every day, sometimes twice a
day And [he] would also tell them of the Kentucky
State Labor Law [which] says that employers have
to give employees one 10-minute break with each four-
hour time span worked", that he was the spokesperson
for the other employees regarding breaks in that he
asked about breaks for fellow employees Harley, Lynn,
and Crawford, and that while he could not recall when
Crawford came to talk to him about asking for a break
or what Crawford said about speaking to management
on his behalf, he, Niswonger, remembered Crawford as
one of the employees who asked him about breaks
Harley testified that Niswonger asked about breaks for
her, Lynn, and Brad Smith
King testified that the employees took breaks but they
would vary and occur at differing times during the train-
ing mode And another team leader, Matlock, testified
that during the training period there was no assigned
breaktime but rather employees took a break after they
had completed their assigned task, that in discussing
breaktime Niswonger recited the Kentucky State law
concerning breaks, and "that was one of the reasons for
[a] team meeting" at which the shift committee dis-
cussed breaks
With respect to Niswonger's participation in the team
concept, King testified that it "was a negative participa-
tion detrimental to what the team was working for",
that Niswonger did not jump in and volunteer during
training sessions, and that Niswonger did what he was
directed to do but when a team leader asked for a volun-
teer to step forward and demonstrate the operation of a
machine, Niswonger never did volunteer Whitaker testi-
fied that former teammate Niswonger
seemed like that he always wanted to hang back,
not get involved too much He appeared to be a
person that wanted to not pitch in and give his
effort along with everybody else's He was always
negative in his attitude, did not have a positive out-
look on anything
Whitaker also testified that Niswonger told him that he
made about $12 an hour at Kuhlman Electric, that Nis-
wonger had his arm in a sling for about 3 weeks to a
month before he was terminated on September 17, and
that for 6 hours of the 8-hour shift Niswonger had a cup
of coffee in his hand Another of Niswonger's former
teammates, Crawford, testified as follows about him
A Well, at the time during the training, he [Nis-
wonger] learned things quick when he wanted to
and then other times he'd Just act like it didn't
matter if he learned it or not, but when he did, he'd
be a good worker, but it Just seemed like you
couldn't ever get him to help out when you needed
to
Q To what extent did he get involved in the
team effort?
A , At first, it looked like he was going to work
out pretty well, and then as time went on, it got a
little worse whereas you needed help It was hard
to get him to help you, hard to get anybody to find
where he was at sometimes
Q Why would it be hard to find where he was
at?
A It Just seemed like you'd be talking to him one
minute in training and then you'd turn around and
he wouldn't be there He'd be somewhere else,
helping with somebody else on another machine or
something, while he was supposed to be in training
on one
Brad Smith, a former teammate of Niswonger, testified
that he was the laziest worker, that Niswonger "kind of
kept to himself, [h]e wasn't much in doing things with
other people [and] he kind of pretty much [was] in
the negative side about anything", that Niswonger said
that he made $10 50 an hour at Kuhlman, that Nis-
wonger had his arm in a sling for a week and a half, that
Niswonger would take the arm out of the sling and hold
a soda container, and that Niswonger, who often did not
wear his safety glasses, told him that he did not believe
that it should be mandatory that employees wear safety
glasses since they were his eyes and they should be his
responsibility
Another teammate of Niswonger, Gibson, testified that
Niswonger seemed to want to do "the least amount [of
work] he could get by with", that Niswonger "would
kind of stand around and wait for other people to do the
work", that it seemed like Niswonger took a lot of
breaks, that Niswonger did not do much work in the 8
hours he was there, and that some of the team members
discussed the fact that Niswonger did not seem to want
to help out or do much work but he never mentioned
these things to Respondent's management
UNITED L-N GLASS 333
Green testified that former teammate Niswonger was
"lackadaisical, Just laid back, really not interested, Just
negative about it Really Just fine if I learn it, fine if
not", that he complained to Matlock about Niswonger's
work habits 2 to 3 weeks after he was hired, 4 and that
he never complained to anyone else in management at
Respondent about Niswonger "not being around his ma-
chine"
Gene Robinson, Johnson, and Kays testified that
Green complained to Kays about Niswonger's team par-
ticipation Kays also testified that Crawford and Rodney
Robinson complained to her about Niswonger's attitude 5
Crawford denied this And when Kays was asked on
cross-examination that if Rodney Robinson testified that
he never discussed Niswonger with anyone other than
Matlock would that be correct, she answered that Robin-
son did not remember correctly
Johnson testified that "shortly before [Niswonger
was] discharged" (he testified that he was not sure if it
was the day before or the same day), Rogers, who at the
time was a teammate of Niswonger, came to him, and
that Rogers was pretty upset almost in tears and shaking
and she said "When are you going to do something
about this guy [Niswonger], he's completely disruptive in
all our team members [sic]" Apparently "members"
should read "meetings" (See Tr 392) Rogers testified
that while she could not be certain of the timing, she be-
lieved that 2 or 3 weeks before Niswonger was terminat-
ed Johnson, who "was going through the factory one
day," asked her how her day was going and she told him
that "we have one person [Niswonger] that Just sort of
stands back and doesn't seem like they want to partici-
pate in everything that everyone else does", that the il-
lustration she gave of how Niswonger Just , stood back
and did not participate involved a situation where Mat-
lock was demonstrating how to unbolt and move a cut-
ting grinding wheel and when she told Niswonger, who
stood in the background, that it was his turn, he did not
take , the bolts all the way off and he did not take the
grinder all the way off, that this was the type of thing
which she was referring to when she spoke to Johnson,
that in her affidavit given to the Board on November 25
she indicated that she did not recall how Johnson initiat-
ed the above-described conversation, that she did not
recall being in tears, that she was upset or more specifi-
cally "pissed off', that she may have been shaking, that
she was not near tears, that this was the only time she
reported Niswonger's lack of participation to anyone
pnor to his discharge, that Matlock was no longer
present when Niswonger did not fully remove the bolts
on the grinding wheel, that she did not report this specif-
ic incident to anyone until she spoke to a Board agent
investigating chanres filed regarding Niswonger's dis-
4 Matlock testified that Green complained to him about Niswonger's
team participation Matlock also testified that Rodney Robinson and
Crawford, two former teammates of Niswonger, also complained about
his team participation Rodney Robinson testified that he did complain to
Matlock about Niswonger's team participation And Crawford testified
that he complained to Matlock well before Niswonger s discharge about
his lack of participation in the team effort
5 Johnson testified that Gibson had gone to Kays to complain about
Ntswonger's behavior As noted above, Gibson testified that he did not
tell the bosses about Isliswonger's behavior
charge, that she believed that she had the above-de-
scribed conversation with Johnson just after the above-
described exercise involving the grinding wheel, that in
her aforementioned affidavit to the Board she indicated
that "[o]ne of us told Niswonger to take his turn", and
that when she learned that Niswonger was handing out
union cards she "didn't report it to no one" and that she
did not ask anyone in Respondent's management if they
knew it
Rodney Robinson, who was in the first group hired
and who was a teammate of Niswonger, testified that
while Niswonger had the ability to do the work, it
"seemed like that any time we were doing something and
two or three of us were working on something, turn
around and Ben would be gone" Rodney Robinson also
testified that Niswonger would
either Just be standing there drinking a cup of
coffee, smoking a cigarette, and he acted like—he
kind of didn't like to work with me and a few of
the others that were hired in the first group, be-
cause he thought we were kind of shown favorit-
ism
As noted above, Rodney Robinson assertedly com-
plained to Matlock about Niswonger not doing his job
Further, Rodney Robinson testified that he heard rumors
that Niswonger supported a union, that he did not
convey these rumors to Respondent's management
before Niswonger was discharged, and that Brad Smith
was the one who told him that Niswonger supported the
Union
Gene Robinson testified that there was no written no-
tation in Niswonger's personnel file concerning the com-
plaints about him registered by Green, Rogers, and
Rodney Robinson
Young met with three of Respondent's employees,
Gary Smith, Niswonger, and Mike Stinfield, on Septem-
ber 9 at a restaurant in Versailles Niswonger, who had
his arm in a sling, signed a UAW organizing committee
card, General Counsel's Exhibit 3, at this meeting
On or about September 10, or in the words of Craw-
ford, about 1 week or so before Niswonger was dis-
missed, he, Crawford, found out that Niswonger support-
ed a union According to Crawford, a teammate who
was hired in the second group, told "a couple of us
about it, said that he [Niswonger] didn't want us to
know" Subsequently, Crawford testified that he could
not recall who told him that Niswonger supported a
union, and that he was alone when he was told Craw-
ford testified that he did not tell anyone else that Nis-
wonger supported a union
On September 11, Niswonger's team participated in a
team building session Chris Wood Foreman, who is Re-
spondent's organizational development technician and
whose primary responsibility is social skill training in the
human resources function, testified that the aforemen-
tioned September 11 session involved a "Wanted Poster"
which is an exercise that is part of Respondent's orienta-
tion social skill training, designed to introduce employees
to coworkers Each of the participants filled in the
blanks on the following document
334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WANTED POSTER
Wanted
Name
Location
For
Always Being
Having Strong Needs For
Greatly Valuing
Living by the Slogan
Since Niswonger's arm was in a sling, Foreman, whose
last name at that time was Wood, wrote his information
on the form for him She testified that she explained to
Niswonger regarding the "Always Being" that it should
refer to what friends and family would say he was
always wanted for, that Niswonger said "Well, always
being negative" and she wrote "NEGATIVE" on that
line of the "WANTED POSTER", 6 that with respect to
"Strong Needs For" Niswonger said "Well, I do have a
strong need for a cigarette, but don't put that
down," that nevertheless she wrote "CIGARETTE" on
the form, that with respect to "Greatly Valuing" she
told Niswonger "a lot of people sometimes put that they
greatly value their friends or their family or their church
or religion," and he said, "Well put family and religion
there", 7 that for a slogan she asked him if he lived by a
slogan and he said "Oh, don't worry about It" and that
was what she put on the form, that later in the training
session she asked Niswonger, along with the other em-
ployees, to sign a norms contact, that Niswonger said he
would not sign it because his arm was in a sling and
when she asked him to put an "X" on it he had another
employee do it for him, that at the time of the hearing
she had conducted 50 social skills training sessions with a
total of between 150 and 170 employees and at none of
these sessions has she had an individual who has been
more disruptive or unwilling to participate than Nis-
6 Foreman testified that she did not recall Niswonger saying at the
time that 'Just now I m feeling or being negative"
7 King testified that when Niswonger was asked why he put down
family and religion he said "I couldn't think of anything else' Stoudt
subsequently gave the following testimony
Q Tell me what about Ben Niswonger impressed you sufficiently
in this interview to allow him to be an employee of L N Glass?
A Well, on Ben s strong points, he stressed that he was a firm
Christian, had great stock and faith in his wife and family, and he
liked to work as a team, being Involved in the team concept, and he
thought a great deal of his religion He stressed religion quite a bit
Q Anything in Mr Niswonger s employment with L-N Glass that
changed your opinion regarding his firm believe [sic] in Christianity
or religion?
A No
Q So that was still a strong point as far as Ben was concerned?
A I imagine, if he was telling the truth
Q I'm saying in relation to your connotation of Ben
A Really, I never talked to anybody about religion or politics, but
that was part of what Ben felt was one of his strong points
Q Okay And you said he also included his wife and family as a
strong point?
A Uh huh
Q Is there anything that had developed during his employment
that leads you to believe otherwise
A No
wonger, that at the end of the training session she asked
team leader King, who also participated in the session,
why Niswonger did not want to be there, that, as usual,
she went to Johnson's office and summarized the training
session, mentioning Niswonger's "attitude and [her]
observation of Ben's participation", that the following
week, before Niswonger's discharge, General Manager
Gene Robinson came to her office and asked her to de-
scribe what had happened during the "Wanted Poster"
training session and she told him what had happened,
that in her discussions about this session with King,
Johnson, and Gene Robinson, the word union was never
used, that Niswonger never told her that he did not want
to be there or that he did not want to participate in that
function, that during the involved session there was a lot
of laughing and talking among other employees, that
some of the employees put down that they had a strong
need for money, that she did not recall that someone put
down that they had a need for a beer or a need for a
woman or that someone put down for a slogan "Do unto
others before they do unto you", that during the norms
session she divided the employees present into two
groups and Niswonger was the spokesperson for his
group, that Niswonger suggested as norms, things like
scheduled 15-minute breaks, three grinder operators per
shift, and scheduled pay raises, that no other employees
ever indicated that he or she did not want to participate
in the above-described sessions and no employee told her
that he or she did not like the sessions, and that before
coming to United L-N she worked in another plant with
Johnson and Gene Robinson
Employee Whitaker testified that during the involved
training session he heard other people indicate a "need
for" money, beer, or a woman
Employee Harley testified, regarding the involved
training session, that a lot of people, including herself,
put down that they had "Strong Needs For" money, that
one employee put down that he had strong needs for a
woman, food and money, that all the employees "got a
laugh out of it because they were all joking about
[their] 'Wanted Posters' and carrying on", that she be-
lieved her slogan was "do unto others before they do
unto you", and that the session was a "joke" and most
employees "don't really take it serious a whole lot"
Two or three days before Niswonger was terminated
employee Bradley Smith discussed Niswonger's union
activity with Whitaker, Rogers, and Rodney Robinson
Niswonger had asked Bradley Smith not to say anything
to anybody about his, Niswonger's, union activity Whi-
taker became a supervisor sometime after Niswonger's
discharge
Stoudt testified that he spoke to team leader Matlock 1
to 3 days before Niswonger's discharge about his lack of
participation, about "Ben's total lack of wanting to par-
ticipate with the team and always standing in the back of
the group while the training was going on and not
paying very much attention"
Gene Robinson testified that a couple of days before
Niswonger's discharge he, Robinson, had a conversation
with Stoudt in which Stoudt indicated that "he was
having problems with Niswonger overstaying his breaks,
UNITED L-N GLASS 335
showing no initiative and, constantly having to remind him
to put on his safety glasses" (Emphasis added ) Asserted-
ly, Robinson directed Stoudt to document the events As
noted above, Stoudt at one point testified that the only
time he reminded Niswonger to put on his safety glasses
was on September 17, the day he was discharged and, as
noted below, at another point Stoudt testified that he re-
peatedly reminded Niswonger to wear his safety glasses
According to the testimony of Gene Robinson, Mat-
lock came to him on September 16 and indicated that
during a team meeting Niswonger said that he had come
to work at United L-N for less money than he was paid
at his previous employer, Kuhlman Electric Assertedly,
Matlock also discussed the "Wanted Poster" training ses-
sion with Robinson and subsequently he spoke to Chris
Foreman about it
Johnson testified that on either September 16 or 17
Matlock told him that Niswonger was telling people that
he came to work at United L-N for $2 an hour less than
he was receiving at his previous employment Since Nis-
wonger's application specified $7 31 an hour, Johnson
called Kuhlman Electric and verified that Niswonger did
receive $731 an hour
Matlock testified that on some occasions team mem-
bers request team meetings, and that Rogers requested a
team meeting at one time, Green requested a team meet-
ing at one time, and Whitaker requested a team meeting
at one time
Green gave the following testimony regarding Septem-
ber 17 and how he found out about Niswonger's union
activity
Q Have you ever discussed unions with Betty
Rogers specifically as to Mr Niswonger?
A Yes, ma'am
Q What were those discussions?
A We had—some of the first bunch that had
been hired got together and we had asked for a
meeting that morning to talk with Ben
Q And to whom did you ask for this meeting?
A My team manager, Tom Matlock
Q And who—when you say several of us, could
you define the several?
A Well, there was—I don't remember all of
them but I know Rodney Robinson was one of-
them, Chris Crawford ,was one, Betty was there,
myself, and that's the only four I can be really sure
about
Q And is this request of Mr Matlock for this
meeting prior to the meeting at which Betty Rogers
proposed a question regarding union activities?
A This meeting was supposed to take place in-
stead of what Betty Rogers did
Q So it was prior to that meeting?
A Yes
Q And what was that meeting supposed to con-
sist of?
A We were going to have a talk with Ben and
see if we couldn't get him to cool it on the union
talk He hadn't been there long enough We felt like
you had to give the Company a chance before you
ever, you know, before talking about bringing a
union in We hadn't been there any time
Q Okay So you discussed with Mr Matlock the
possibility of a group of employees going and
having a private discussion with Mr Niswonger as
to stopping his union activities?
A No, ma'am, I did not
Q In a team meeting?
A I asked Mr Matlock—after the morning meet-
ing was done, I asked Mr Matlock if we could
have a private meeting without any team leaders or
any personnel people there, Just our own team
members in our own group That's what I asked
him
Q And—
A I didn't say what for I Just asked him for a
private team meeting
Q I'm sorry I thought you Just testified that one
of the reasons you were requesting this meeting was
because you wanted him to cool it on his union—
A I did, but Tom Matlock didn't know it
Q Who did know it?
A The team members The ones I Just got
through mentioning you the names Just previous I
said the four of us wanted to have a meeting with
Mr Niswonger after the morning meeting to discuss
with him about cooling it on the union, but Tom
Matlock knew what—for the reason he knew not
what it was for
Q So are you saying that you asked Mr Matlock
to set up a meeting—a team meeting of the group
that you Just described, including Betty Rogers and
yourself and Mr Niswonger and some other indi-
viduals, your team, and that he did not ask why you
would want this meeting?
A I didn't ask Mr Matlock to set up a meeting I
asked Mr Matlock if it would be all right if we had
a team meeting, and no, ma'am, he did not ask for
what 1
Q Okay And what was his response?
A He said, Yes
Q And when were you to have this meeting?
A Right after our everyday morning meeting
Q And you said that Ms Rogers' question came
in the meeting when it wasn't supposed to, or not
at—I'm not trying to misrepresent your words—
A No, ma'am She Just misunderstood what we
wanted She—
Q So prior to this you think that you had dis-
cussed with Betty Rogers what you all wanted?
A I discussed with Betty Rogers like I did with
Chris Crawford and Rodney Robinson, that I think
we ought to have a team meeting with Just us and
talk to Ben about cooling it on the union activities
Yes, ma'am
Q Okay You said that Betty Rogers misunder-
stood What did Betty Rogers misunderstand?
A Well, apparently, she must have thought we
wanted to talk about it out in the open
Q Why do you say that?
336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A Because I made it clear when I discussed it
with her that it was Just going to be us, we didn't
want anybody else to know about it We was Just
going to have a little team meeting with Ben and
see if we couldn't get him to cool it down, give the
Company a chance
Q I understand what you're saying I'm saying,
Why do you say she must have misunderstood?
A I reckon because she asked Rod what he
thought about a union
MS BERRY No other question
BY MS BERRY
Q Oh, did you discuss the union activities of Mr
Niswonger with anyone besides the individuals on
your team?
A I'm sure there were other team members, yes,
ma'am
Q Do you recall any other individuals besides
your team members?
A No, ma'am
Q At what point—and if you've already an-
swered this, I apologize for asking, but at what
point did you become aware of Ben's activities?
A Again, I can't give you a date I'm sorry, but
I'd say probably three weeks before Ben was let go
Roughly Like I said, I can't give you a date, but it
was about, I'd say, three weeks before he was let
go
Q And in what manner did you obtain this infor-
mation?
A A fellow team member that he was hired in
with approached me about it and told me
Q Who was the team member?
A It was Donnie Gibson
Q And what did he tell you?
A He just came up and told me He said, have
you heard anything about Ben trying to get in a
union? I said, no, I haven't, Donnie, and he said,
"well, he's approached us but he would like for the
first group not to know He doesn't want any of us
to tell you all" I said, How come? He said,"Well, I
really don't know, but he just made it clear that he
didn't want the first bunch hired to know" I said,
Well, that's fine I don't know why he'd want a
union but—
Q Any other discussions with Donnie regarding
Ben's activities in the union?
A No, Donnie didn't—he just didn't go into
detail He Just approached me and told me just
what I got through telling you That's about all He
didn't go into extremes about it
Regarding the above-described request to Matlock to
allow the employees to hold their own meeting, Craw-
ford testified that "[h]e [Matlock] knew that we
wanted to have a meeting but he didn't know anything
about the union" Matlock testified that only Green
asked for a team meeting on September 17 without the
team leaders present, that Green did not say at that time
why he wanted the team meeting, and that he agreed to
allow the team meeting Subsequently, Matlock testified
that Brad Smith, on a prior occasion, asked him to allow
a team member meeting to be conducted without a team
leader present, and he granted the request Matlock was
not sure whether he knew the purpose of that meeting
when he granted the request
As usual, Stoudt held a morning meeting for the em-
ployees on September 17 After the meeting, Matlock
told the employees in the C B G group, including Nis-
wonger, that they were to remain in the cafeteria for a
team building session in which they were going to do
some problem solving Matlock conducted the team
building session Employees present expressed their opin-
ion on what could be done to improve the operation
Niswonger brought up the Kentucky Labor Law regard-
ing breaks indicating that an employer had to give em-
ployees one 10-minute break within each 4 hours
worked, and that "the Company could not have its relief
lunch breaks in the manner which it had planned because
they would be going out bounds on the time span that
Kentucky Labor Law allows" Niswonger testified that
King left the room when he, Niswonger, started to make
his statement about breaks and lunch, that King subse-
quently returned, walking into the room, with Johnson
directly behind him, that Rogers then said "Rod, I hear
someone's passing out union cards and I'd like to know
what can be done about it", that Johnson replied
Well Betty, some people are never satisfied They
think if they get a union in they'll get higher wages,
et cetera, but the bottom line is you've got to make
a quality product at a low cost and you can't do
this with a union I can't stand here and tell you
that unions are bad, but they're an organization
with no product to sell and they're making money
A union will tell you this and they'll tell you that
and they don't care about you though All they're
interested in is your money and if you get a union
in, you've usually got to pay a pretty high initiation
fee [Y]ou've got to be worried about dues being
taken out of your check every month, and you're
always worried about a strike Also, other compa-
nies like Toyota, for instance, do not like to do busi-
ness with union companies because of the fear of
strikes I'll never forget when I worked for White
Trucks I became a union steward and the first
thing that the union told me is that the company is
your enemy Now you can't run a business like this
That's exactly why White Trucks went out of busi-
ness,
that Johnson said that there were some Libby-Owens
Ford (LOF) plants, which are unionized automotive
glass manufacturers, that were not doing so well, that
Matlock named some LOF unionized facilities that were
not doing well and Matlock said that the unionized LOF
workers did not want to work, that Johnson then looked
at him and said "Ben, you all had a union over at Kuhl-
man Tell us a little bit about it Did you like the union",
and that he replied "You'd have to ask me something
specific However, we did shut down for lunch"
Johnson gave the following testimony about the
above-described September 17 session at which Rogers
asked about union activity
UNITED L-N GLASS 337
Q Now, I take you to the team meeting, which
you already made reference earlier in the morning,
in which Betty Rogers asked a question Will you
begin by telling His Honor about what time of day
and what day it was, as it relates to Niswonger's
termination?
A I'm pretty sure it was the morning of the same
day We always met—we always had morning
meetings with all team members present to cover
any plans we had for the day or answer any ques-
tions anyone might have
Duke Stoudt, our production superintendent, usu-
ally presides over these meetings I walked in and
was standing beside Duke—
Q May I ask you, Mr Johnson, at the time you
walked in, not by name, by numbers and descrip-
tion, how many of the team members and team
leaders were there?
A I would say most of them Some may have
left, but I do know that the majonty of the CBG
team members were still there
Q Had the meeting begun and was going on
when you entered the room?
A Yes, sir, it had
Q How did you happen to enter the room?
A I tned to attend the meetings I just happen to
walk in a few minutes late that day
Q Tell His Honor what took place beginning
when you first walked in and as it progressed?
A I walked in the meeting, and I was standing
beside Duke Stoudt And some things were being
discussed, and all of a sudden one of the CBG team
members, a lady by the name of the Betty Rogers,
asked a question sort of along the lines of "what's
this I hear about unions?"
And Duke said, "Well, he's [sic] Rod, let me
refer the question to him"
And I told Betty I said, "Well, what we're trying
to do here with employee involvement program,
trying to keep open as many channels of communi-
cation and communicate as effectively as we possi-
bly can We really don't see a need for third party
representation here"
I said, "If you want some information on how it
might be a problem with what it is we're trying to
do with employee involvement, you can ask your
fellow team member, Mr Ben Niswonger "
Because at that point in time, Ben had very spe-
cifically, especially in employment interview, talked
to me about his displeasure with unions and how he
thought that they were so counter productive with
his previous employer
Q What sort of an answer did you expect from
Niswonger when you referred the question to him?
A I didn't really expect an answer from him I
Just more or less referred Betty Rogers to him
Q Mr Johnson, what were the circumstances, all
of the circumstances surrounding that meeting, that
question, your background with Mr Niswonger,
which would cause that question or referring it to
Mr Niswonger in any way to be coercive or intimi-
dating or threatening?
A No, there was nothing coercive about it at all
It's like me asking somebody how to fix a machine,
you know
Q What answer were you anticipating that you
would get from Niswonger?
A I didn't know that I would get any, at that
time
Q Do you remember whether or not you did get
any?
A I got no answer from Ben directly I don't
know that he responded at all
Q What, if anything, do you remember his
saying when you referred this question over to him?
A I don't remember that he responded
Q Did you press him in any way for a response?
A Certainly not
Q Were you expecting a question of that kind at
that meeting or any other time from Betty or
anyone else?
A No, I was totally surprised by the question
Q Mr Johnson, calling your attention to the ses-
sion when Betty Rogers asked her question After
she asked the question did any other person come
to your view or to your mind at that time, to whom
you remembered that they had worked in a union
plant, of whom you could have asked that same
question?
A No one that's come to mind, because no one
else that we had talked to, whether they had
worked at a union facility or not was so vehemently
opposed to a union, as Niswonger was, and they
talked about all the negative things that had hap-
pened as a result of it
Rogers gave the following testimony about her above-
described questions regarding union activity
Q Would you just tell His Honor, what occurred
at that team meeting as it related to yourself, and
Ben Niswonger, and Rodge [sic] Johnson—your
memory of what took place
A Okay We had just broke up from a morning
group meeting of everyone in the plant And, so
Tom Matlock, our Team Leader, told us to stay
over, that we were going to discuss some things
about the line And so Rod Johnson just—
Q May I interrupt you at that time? There's—to
clear up a matter that's not been cleared here
before
Did the meeting begin that morning with every-
one who was working in the plant, participating in
the team meeting?
A Yes We always start our morning out that
way
Q All right Then had the team meeting of ev-
eryone ended—excuse me, ended and only the
C B G team remained before you asked your ques-
tion?
A Yes
Q So I ask you, do you know who Gary Smith
is at the plant?
338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A Yes, I do
Q Was Gary Smith a member of the C B G
team at that time, if you remember?
A No, he was not
Q And so only the C B G team remained, as I
understand it
A Yes
Q All right Then what took place?
A Rod came through to get him something to
eat for breakfast, and I—we had been discussing it
And I asked Rod—I just asked him what the plant
views were of a union
And he said that some of the L 0 F Companies
were union, some where not, there were pros and
cons, and that at United L-N, we would like to try
the team concept
And that—he said, well, he says, "you have a
member in your group that just came out of a union
environment" He says, "If you want to know
something it [sic], it would be best just, you know,
to ask him"
And he was referring to Ben
Q Do you recall whether or not Ben Niswonger
made any response, or said anything at that time?
A No sir, I don't remember
Q Before that meeting, had you and Rod had
any discussion that you might ask such a question?
A No
By Ms Finch
Q Now you testified, Ms Rogers, that on or
about September the 17th, in a morning C B G
team meeting, Mr Jackson [sic] was walking
through the room to get something to eat Is that
correct?
A Yes
Q Okay So he was not in the room during the
entire meeting?
A No
Q Okay And, you said, I believe, you testified
that you had been discussing it, and you asked Mr
Johnson what was the plant's view about a union?
A Yes
Q Okay What—had you been discussing it prior
to Mr Johnson coming in—into the meeting?
A Some of us had talked about it, yes
Q Okay Prior to Mr Johnson coming in?
A Yes
Q That's correct And now the reason that you
asked Mr Johnson this question was because that
you had heard these rumors that Mr Niswonger
was passing out union cards Isn't that correct?
A It wasn't just Mr Niswonger, there were sev-
eral people passing out union cards
Q But that's the reason that you asked the ques-
tion, isn't that correct? That you had heard that Mr
Niswonger and other employees were passing out
union cards
A Yes
Q And in fact, at the time you asked this ques-
tion, that was what everyone in the plant, or at least
on your team, was talking about Isn't that correct?
A Yes
Q And—in fact, who was it that told you that
Mr Niswonger was passing out the union cards?
A I believe at the time I told you I do not re-
member
Q Do you remember today?
A Who specifically—no
Q You do not remember—
A It has been such a long time I do not remem-
ber who specifically came up and asked me
Q Was It one of your team members?
A I cannot specifically say
Q Okay More than one employee?
A I really do not remember I've had several
employees
Q Several employees?
A Yes
Q And, in fact, you asked several employees
whether or not they knew if Mr Niswonger was
passing out union cards Isn't that correct?
A I asked?
Q Yes
A Yes, I did
Q Who did you ask?
A I couldn't specifically say I really don't re-
member
Q And you asked these questions about Mr Nis-
wonger prior to his discharge Isn't that correct?
A Yes
Q About how many people did you ask?
A I don't remember
Q 10?
A No
Q 15?
A No Maybe one or two
Q How many people are on your team at that
time?
A Let's see There was—there may have been
about 10 team members at the time I really—so
many things have happened then I really don't re-
member exactly the—
Q So—
A —amount of people
Q Would it be correct to say that you asked
more than one person?
A Yes
Q Okay And, in fact, more than one person
asked you whether or not Mr Niswonger passed
out cards
A Yes
Q Do your remember whether or not you asked
any supervisors whether or not Mr Niswonger was
passing out cards?
A I know specifically that I did not
Q Is it your testimony today that you definitely
did not ask any—or tell any—or ask any—sorry,
ask any team supervisors whether or not Mr Nis-
wonger was passing out union cards Is that your
testimony today?
A Would you repeat that, please?
UNITED L-N GLASS 339
Q Is your testimony today that you never, you
definitely remember never having asked any team
supervisors about whether Mr Niswonger was pass-
ing out union cards?
A No, I ne'ver did
Q Okay I'd like to read a portion of your affida-
vit that you gave [to the Board]
A Okay
MS FINCH Well, you have to read the whole—
the line above that in conjunction Where it says,
"Neither did I ask any team leaders or any other
management or supervisory personnel whether they
knew if Niswonger was handing out union cards If
I did, I sure I don't remember it"
JUDGE WEST Show the witness that portion
Show the witness that portion of the affidavit
By Ms Finch
Q That particular portion is Lines 4 through 9
A Am I supposed to comment on this?
MR LovErr Not until she asks you some ques-
tion We're saying that's the same that you've testi-
fied today And I believe the court has sustained
our objection
BY MS FINCH
Q Okay Have you read that Ms Rogers?
A Yes, I have
Q Okay And is it still your testimony that you
definitely did not ask any supervisory officials or
management officials whether Mr —whether they
knew if Mr Niswonger was passing out union
cards?
A I am positive I did not ask any supervisor or
anyone else—not anyone else, any supervisor or
team leader if Niswonger was
Q Supervisor or team leader?
A Right
A Okay You're more positive today than you
were on November the 25th, 1987?
Q Yes
Q Is that correct?
A Yes
Q Did Mr Johnson make any comments regard-
ing the pros or cons of unions?
A No
Q Okay I'd like to direct your attention—do
you still have your statement in front of you?
A Yes
Q Okay I'd like to direct your attention to Page
2, Line—I believe, 16 and 17 Do you see the line
I'm speaking—
A "Johnson talked about pros and cons"?
Q Yes Is this—in your statement, are you not
describing the same meeting that—just—that you
Just testified about? ,
A Yes
Q And so Mr Johnson did more—did describe
pros and cons of unions on that—during that meet-
mg?
A Yes
Q Okay You said—you went back and in the
beginning you testified regarding when you began
employment with the L-N Glass, have you ever
been employed in a unionized facility?
A No, I have not
Q What were some of the pros and cons that
Mr Johnson specified on this occasion?
A I really don't—do not remember I just re-
member that he said some facilities were, and some
of the facilities wasn't That's all I remember
Employee Crawford testified, regarding the involved
September 17 team meeting, that when Rogers asked
whether a union would help or hurt, Johnson gave the
pros and cons of unionization, that Johnson said some-
thing about working at White's Motor and being a union
steward there, that LOF plants which were unionized,
two of which were closed, were also discussed in this
meeting, and that Johnson then asked Niswonger to tell
the group about a union since he was from a union
plant 8
Employee Harley, who also attended the above-de-
scribed September 17 meeting, testified as follows
Q Were you present, and I'm not trying to con-
fuse the terms, but at a meeting, and I'm not sure if
they're called team meetings, I believe on Septem-
ber 17th when Betty Rogers asked a question re-
garding unions?
A Yes .
Q Could you describe that for me please?
A It was in the morning and Duke Stoudt had
had his meeting where we already knew that they—
everyone knew about the union and stuff and then
the C B G team called this meeting and when Betty
mentioned—Rod Johnson came in to get breakfast
out of the machine, and Betty asked him about a
union and we all kind of looked at Ben and looked
at each other because we thought something was
going on there
Q And why did you look at Ben?
A Because we knew Ben was probably a part—
in hot water over it
Q Do you remember what Betty said?
A She asked Rod what he thought about a union
or something like that, you know, what his opinion
was
Q Do your remember his response?
A He told us that he had been a union steward
and that he thought that they alienated the work
force from the Company and that you shouldn't
think of them as the Company, they should work
together, and he thought the union tried to alienate,
you know, tried to make you think the Company
was against you
Q And who was present at this meeting?
A The C B G team
Q Okay We mentioned the name Betty Rogers
Is Betty Rogers a member of the C B G team?
8 Green could not recall what Johnson said at this meeting
340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A She was at that time She's no longer a
member of the C B G team
Q What is she now?
A She's got some job in quality I'm not sure,
you know, exactly what her title is
Q Where does she work? Does she still work at
the plant?
A Yeah, she works in the office upstairs I know
we had our S P C training the other day and she
was up there at a desk It's got two or three desks
in an office upstairs
Q Okay This was following the meeting At the
time, she was a member of the team?
A Yeah
Later in the day on September 17, Niswonger had oc-
casion to be in the breakroom for more than 10 minutes
He was not sure how much longer than 10 minutes he
was there For all but 4 or 5 minutes of the break, asser-
tedly he was accompanied by Harley, Thompson, Brad
Smith, Whitaker, and Gibson Harley remained with him
in the breakroom when the others left Niswonger testi-
fied that he and the others were in the breakroom wait-
ing for paint and brushes, that he did not remember who
indicated that what they were waiting for had arnved,
that he did not remember what was said by whoever
supplied the reason for leaving the breakroom, that he
painted after leaving the breakroom, and that he did not
recall whether he stopped painting to go to lunch
King testified that on the morning of September 17
Stoudt told him that his team would be doing extensive
cleanup and touchup painting on parts that did not look
presentable for the grand opening, that he took his group
to the storeroom to get the supplies and materials, to
clean up and paint, that there were not enough paint-
brushes and he was told that they were being purchased
in Versailles, that he left instructions to be notified as
soon as the brushes arrived at the plant so the group
could pick them up, that he then "instructed everybody,
including Niswonger, to take a break and we would go
ahead and do some cleaning up until the paint brushes
arrived", that this occurred at about 10 15 am, that
there was no shortage of paint, just paintbrushes, that he
got involved in another project, that while breaks nor-
mally last from 10 to 15 minutes, the work force was
self-regulated and it operated on an honor system, that at
11 15 a m he walked toward the storeroom to check on
the paintbrushes because he had not been told whether
they had arrived, that when he passed the breakroom he
saw Niswonger and Harley sitting in the room, that he
opened the breakroom door and said "Break time is
over", that Niswonger said "I'm waiting on paint brush-
es" and he, King, said "Not in here you won't", that he
told Niswonger and Harley to go to the storeroom to
check whether the paintbrushes had arnved, that he did
not know when the other team members left the break-
room, that he then went back to the othei project, that
at 11 30 a m he saw Niswonger and Harley and they did
not have paintbrushes, that Niswonger then removed his
paint coveralls and was standing while the other employ-
ees in this group were cleaning, that all of the employees
left for lunch and on his way to the cafeteria he told
Stoudt what occurred, that Stoudt said "That's it We're
going to go up and see Rod [Johnson] and Gene [Robin-
son] right now and we're going to get rid of that guy",
that Gene Robinson told him "to get Tom Matlock, that
he [Robinson] wanted us to write down anything that
may have occurred right away and do it even if we had
to miss lunch, write it down so that we could have
something on paper", that before September 17 he had
never written any notes about Niswonger, that he never
spoke to Harley about what occurred in the breakroom,
that he did not put any type of notice in Harley's file
about the breakroom incident, and that 45 minutes later
he had a conference with Stoudt, Johnson, and Mat-
lock 9
9 Stoudt gave the following testimony about what King told /um about
the September 17 breakroom incidents
Q Do your recall discussions in which you participated on or
about September 17, the day that Mr Niswonger was terminated,
concerning whether or not he should be terminated?
A Yes
Q Do you remember such discussions',
A Yes
Q What was the first incident that brought those on immediately
that day?
A Well, Nate had—
Q Excuse me May I ask you about what time of day this oc-
curred?
A I think It was in the latter part of the morning
Q All right Go ahead
A And Nate come up to me and he said that he was having some
more conflict or misunderstanding with Ben about in telling him
what to do and more or less being inflagrant not to do It or that
Q Okay And is this Nate King, the team leader, who has been
sitting with us during this hearing whom you are speaking of as
Nate?
A Yes, sir
Q All right And what did Nate say to you and what did you say
to Nate to the best of your memory and if you d like some water or
anything, why you let me know?
A Well, Nate more or less told him—he gave him some specific
responsibilities to do and he had to repeatedly remind Ben to get out
of the break room and to go do it and stuff like that
Q All right And what then did you say to Nate when he said
that to you?
A I told Nate that over the other occasions that had come up in-
volving Ben that in no way I felt Nate had to take this repeatedly,
whether It was day after day or two or three times a week, that
there's no way he should have to go through this
JUDGE WEST Just one line With respect to your testimony re-
garding your discussion with Mr King on the 17th, just after Mr
King had spoken to Mr Niswonger in the break room, you—
THE WITNESS If! remember correctly, I think Nate had to go in
the break room to get him out of the break room, yes
MS FINCH I can't hear
JUDGE WEST You used the word repeatedly
THE WITNESS Well, Nate seemed to have a little more conflict
with Ben than Tom did, and my own opinion—do you want me to
give you my truthful—
JUDGE WEST Well, let me explain my reason for asking the ques-
tion In using the word repeatedly, you're not saying that, on that
day, the 17th, Mr King repeatedly asked Mr Niswonger to leave
the break room and to perform whatever tasks were assigned him,
are you?
THE WITNESS I can't remember if It was repeatedly or just that
once or if that day Nate had a couple of different instances on—in-
volving that one situation where he was told to go do something and
he never did It and then Nate had to get him out of the break room
if I remember right to go do that
Continued
UNITED L-N GLASS 341
Employee Whitaker testified that on September 17,
sometime between 10 and 11 a m, he and the 14 other
team members took a break while they were waiting for
some paintbrushes Whitaker believed that he and 12 of
the other team members left the breakroom after "no
more than 15 minutes" because "that's the length of time
we're allowed to take a break and I always try to be
back by that time" He testified that all of the other team
members left the breakroom at the same time he did,
except Niswonger and Harley
Harley testified that on the morning of September 17
fellow team members put on white suits to paint but
since there were not enough paintbrushes the team mem-
bers went to the breakroom, that before going to the
breakroom the team members stood and waited for about
15 minutes in the storeroom and in the hallway, that the
decision to then go to the breakroom was a consensus
decision of the team members, that they stayed in the
breakroom for 10 to 15 minutes, that all the team mem-
bers, except her and Niswonger, left the breakroom after
about 10 or 15 minutes, that 1 or 2 minutes after every-
one else left, King came to the door of the breakroom
"and he made a remark that the brushes are back, our
break's over or something", that Niswonger "might have
said something like I'm waiting on brushes, or I'm taking
a break, you know, and laughed" but that she could not
remember him saying anything, that she could remember
Niswonger said something but she was not sure what he
said, and that no one has ever talked to her about over-
staying her break on September 17
Stoudt testified that on the morning of September 17
he told Niswonger, who was not wearing his safety
glasses, that "We do have safety rules and regulations
here that's going to have to be honored and safety glass-
es is one part of it and he's going to have to make up his
mind and he's going to have to wear them Just like ev-
erybody else", and that Niswonger would either always
have his safety glasses off or on top of his head and he,
Stoudt, had to repeatedly remind him to put them on
As noted above, assertedly, shortly after lunch on Sep-
tember 17 Stoudt, Johnson, Matlock, and King held a
conference King testified that it was recommended at
this meeting that Niswonger should be terminated, that
during the conference he related his experiences with
Niswonger, namely, the above-described breakroom ex-
change and the fact that (1) Niswonger stood on the
sidelines and observed without doing any actual training
himself, (2) he, King, had to tell Niswonger to wear
safety glasses on two or three different occasions when
he was Just holding them in his hand, 1 ° and (3) Nis-
wonger insisted on leaving early for breaktime or leaving
early to go home on an everyday basis, that at no time
was anything mentioned about a union at this meeting,11
JUDGE WEST Okay But you don't specifically recall Nate telling
you that morning that he had to repeatedly ask Mr Niswonger to
leave the break room and perform the tasks assigned
THE WITNESS Possibly he could have but I'll be honest with you,
I can't remember if he said repeatedly or not
1 ° While King had to tell other employees to put on their safety glass-
es, he testified that Niswonger was the only employee whom he had to
caution more than once
" Stoudt corroborates this, testifying also that he did not know any-
thing about Niswonger's union activities or sympathies at the time
and that it was his personal recommendation that Nis-
wonger's termination was necessary and was the best
thing .
Matlock testified that on September 17 Gene Robinson
told him to come to his, Robinson's, office, that he, Rob-
inson, King, and Johnson discussed the fact that Nis-
wonger took "an hour break without permission or
something" and "some of his other work performance at
the time", that "after we talked about this for a period of
time, Mr Robinson decided that the only alternative we
had was to sever [Niswonger]", that he joined in the
recommendation to discharge because he believed that
team members could not work with Ben, that the word
union was not mentioned in any way during any of the
discussions he had with Robinson or anyone else in L-N
management about Niswonger, that he never observed
Niswonger supporting the union in any way, that he
never saw Niswonger pass out union cards, that he never
heard Niswonger make any comment in support of the
union, and that he did not know that Niswonger support-
ed a labor union pnor to Niswonger's discharge 12
Gene Robinson testified that on September 17 "Stoudt
came to me again and indicated that he was having
a problem with Niswonger again and that he had grossly
overstayed his breaktime by an hour and that we
had to take some action"," that he convened a meeting
with Johnson and Stoudt, and they discussed all of the
incidents involving Niswonger which led up to this situa-
tion and came to the conclusion that Niswonger "was
not going to fit into the organization, that he had not
bought into the team concept in any way and that he—
the straw that broke the camel's back was grossly over-
staying the break by an hour", that while he had the
final responsibility to make the discharge decision on
Niswonger, Johnson and Stoudt agreed with the dis-
charge, that at the time of the discharge he was not
aware that Niswonger was in any way involved with
any union effort," that what caused the whole matter to
come to a head on September 17 was
the fact that the break—that Nate had told Ben that
to go ahead and take his break at a certain time and
that an hour later Nate had come back and Ben was
still in the break room, had made no effort to end
his break,
i2 treated more fully Infra, assertedly Matlock first learned of Nis-
wonger s union activities the first Monday following September 17,
which would have been September 21, when a team member, Matlock
could not remember which one, asked him and King whether they knew
Niswonger was passing out union cards Matlock also testified that, after
Niswonger's discharge, Crawford, Green, and Rod Robinson asked him if
he knew that Niswonger passed out union cards
' 3 Gene Robinson testified that earlier Stoudt told him that he, Stoudt,
was having a problem with Niswonger not wearing his safety glasses,
overstaying breaks, and not showing any particular initiative in the train-
ing process
i4 testified that at the time of Niswonger's discharge there
were 45 employees working in the factory, and that he was told by a
team leader that an employee had told him that Gary Smith was passing
out union cards At the time of the hearing, Gary Smith still worked for
Respondent
342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and that one incident alone would not have resulted in
Niswonger's discharge 18 but when considered in con-
junction with the misrepresentation of his wage, the fact
that he was "constantly causing trouble," overstaying his
breaks, showing little initiative, a negative influence on
the team building process, causing much disruption
inside the C B G room, Chris Wood Foreman's com-
plaint about Niswonger" and the other employee com-
plaints about Niswonger, it was decided to discharge
him
Johnson testified that prior to discharging Niswonger
he recommended the discharge in a meeting with Gene
Robinson on September 17 and no one else was present,
and that no one told him that Niswonger was distnbut-
ing union cards in the parking lot
On the afternoon of September 17, King told Nis-
wonger to go with him to Johnson's office Present for
the meeting which followed were Johnson, King, Mat-
lock, and Niswonger Niswonger testified that Johnson
said "Ben, the reason we called you in here is we've
been watching you We don't think you fit in here at
United L-N" and "We're a positive company and we
think that your negative attitude will influence others",
that King said that earlier that day he sent team members
to the breakroom to "wait on paint and paint brushes"
and when he, King, came back, Niswonger and Harley
were still there, that he replied that King said that "the
paint and paint brushes would be delivered there" and
the other team members had just walked out, that John-
son said "Well Ben, all this doesn't matter Nate, Tom,
and some of your own team members told me of your
bad attitude and we don't think that you fit in here at
United L-N and we no longer need you", that he said,
among other things, "Well I think I've been singled out
for my activities and I think there will probably be a few
others", that Johnson said "your work ability is not in
question here Your attitude does not fit our team con-
cept", that prior to his discharge he had never been dis-
ciplined in any manner nor had any supervisor ever said
anything to him about his attitude or complained about
nonparticipation in team work, that no employee ever
discussed his attitude with him and no employee ever
complained that he did not participate, that he did not
tell Chris Wood Foreman that he did not want to attend
the team building sessions she conducted, and that noth-
ing was brought up at the exit interview about his failure
to always wear safety glasses 17
" Gene Robinson testified that he did not discipline Harley nor did he
direct anyone in management to discipline Harley for overstaying her
break that day
16 Chris Wood Foreman testified that before Niswonger was terminat-
ed Gene Robinson came to her office and he indicated that he was con-
cerned about Niswonger's "behavior and that they were reviewing his
behavior Robinson asked her to tell him what happened during the
above-described Wanted Poster training session
17 Niswonger conceded that on September 17, shortly before his exit
interview, Staudt told him to put his safety glasses on Assertedly even
though he was in an area where the wearing of safety glasses was re-
quired, he had the glasses off because they were steamed up Also, Nis-
wonger testified that this was the only time that Stoudt told him individ-
ually to put the safety glasses on, and that he was never told before, in
the form of a reprimand, by any other supervisor to put the safety glasses
on
Regarding the exit interview, Johnson testified that
Niswonger did not say anything during this meeting
which could be construed to refer to the fact that he was
engaged in union activity, or that he belonged to or sup-
ported a union at United L-N, 18 and that he told Nis-
wonger why he was being terminated and the reasons in-
cluded having to be constantly reminded to wear proper
protective equipment, being disruptive in team meetings
and team building sessions, having a "not give a damn"
attitude, and misstating what he earned at Kuhlman
Green testified that "probably a day [September 18] or
two days [September 19] after Ben had been let go" he
talked to Matlock about Niswonger's union activity
On February 1, 1988, Respondent's attorneys held a
group meeting at Respondent's facility with those of its
employees and supervisors who were in C B G at the
time of Niswonger's employment Harley testified that
during this meeting
Tom Matlock stated that he, until the morning of
our C B G meeting where Betty Rogers brought
the union out, that he knew nothing of the union
activities until that morning He said that Jimmy
[Green] and some of them had come to him and
were concerned about it and he told them that he
would let them handle it, you know, let them talk
to Ben themselves
John Lovett and Nate [King] had went to get
Donnie [Gibson] and Brad [Smith] It seems like
they weren't there yet He'd went back out on the
floor Betty Rogers was saying something and Tom
[Matlock] said that he didn't even know there was a
problem or anything and he said, til Jimmy and
them had come to him the morning that Betty said
that to Rod [Johnson] that Jimmy [Green] and
Rodney [Robinson] and a couple more had come to
him and said they were concerned over Ben and I
believe he said that they'd heard about the union
activities and they were concerned about Ben and
they wanted to call a meeting to talk to him about
this, and he was not involved in it You know, It
was Jimmy and Rodney and them who wanted to
speak to Ben
Harley was sure that Attorney John Lovett was not in
the room at the time She was not sure if Attorney Wells
Lovett was in the room when the statement was made
because at one point he left the room to look for John
Lovett And she did not think King was in the room but
rather, as noted above, he was getting Gibson and Brad
Smith
With respect to the above-described February 1, 1988
meeting, Green testified as follows
Well, Tom [Matlock] and I were talking about it
and he made the statement that and the unions
18 King corroborated Johnson on this point And Matlock testified that
the word union was not mentioned in any way during the discharge
interview King s, Matlock s and Johnson's notes of the discharge meet-
ing were received as R Exhs 3, 7, and 8, respectively
UNITED L-N GLASS

343
[sic] came up, and Tom said when it happened,
he said, hell, he had no idea about it until at least
two or three days after Ben had been let go That
was the first he ever heard of it 19
Green also testified that he did not hear Matlock say
anything at the February 1, 1988 meeting about the
meeting Green requested on September 17, that he was
not sure if he was in the room the whole time Matlock
was in the room, that he thought he arrived in the room
before Matlock but he was not sure if he, Green, left the
room before, after, or with Matlock, and that the meet-
ing lasted 30 to 40 minutes
Regarding the February 1, 1988 meeting, Crawford
testified that he was about the third person to arrive at
the meeting, that Wells and John Lovett were already
there when he arrived and they remained in the room as
long as the meeting lasted, that Matlock did not say any-
thing at this meeting about knowing about Niswonger's
union activity before he was discharged, that the two
people who arrived at the meeting before him were
Green and Rodney Robinson, that the meeting started 10
minutes after he entered the room and it lasted about 30
minutes, that Matlock, at the February 1, 1988 meeting,
did not say anything about when he became aware of
Niswonger's union activities, that he was in a position to
hear everything that Matlock said, that he sat diagonally
across the 6-foot-wide table from Matlock, and that he
did not actually hear everything that Matlock said "but
he [Matlock] made no statement out loud to everybody
where everybody else could hear anything"
Whitaker testified regarding the February 1, 1988
meeting that when he arrived at the meeting Wells and
John Lovett were standing in the room in front of the
group, that he did not hear Matlock say anything at this
meeting relating to when he, Matlock, first learned of
Niswonger's union activity, that he believed that he ar-
rived in the room after Matlock and the meeting was in
progress when he arrived, that he left before the meeting
broke up because he had duties out on the plant floor,
that he was seated across the room from Matlock about
10 or 12 feet away, and that he could not hear every-
thing Matlock said
With respect to the February 1, 1988 meeting, Matlock
testified that when he arrived in the room Wells Lovett
was present but he, Matlock, did not think John Lovett
was in the room, that he believed that Wells Lovett left
the room for a few minutes to get John Lovett, that
while both Lovetts were out of the room he participated
in a conversation in an attempt to recall the meeting
when Betty Rogers brought up the question concerning
the union, that
Brad Smith, one of our team members, had indi-
cated he thought the meeting that Betty had
brought the subject up had occurred during a team
meeting, and my recollection of that situation was
' 9 As indicated in fn 12, supra, Matlock testified that he first learned
of Niswonger's union activities on September 21 which was 4 days after
the discharge Also, as noted, supra, Green himself previously testified
that he discussed Niswonger s union activity with Matlock probably a
day or two days after Ben had been let go -
that it was at the morning meeting, and Jimmy
Green, who was sitting down the table from me,
asked me if I recalled that morning him asking me
for a team meeting without the team leaders
present, and I indicated I did remember that He
then said to me that the purpose of that team meet-
ing was going to be they were wanting to talk to
Ben about him passing out cards, but that since
Betty had brought it up in the morning meeting,
they canceled it and didn't see the need for it
I'm not sure if I addressed it [a statement regard-
ing when he first learned of Niswonger's union ac-
tivity] to Brad Smith or perhaps the person sitting
next to me, I don't recall, but then I had indicated,
I said, I didn't even know about this thing Nis-
wonger's union activity until the following Monday
[after Niswonger's discharge] when one of the team
members told me
that he did not know before February 1, 1988, the reason
for Green's request of September 17 for a team meeting,
and that on February 1, 1988, he did not say anything to
the effect that he knew it earlier
Both of the Lovetts subsequently testified that while
they were in the involved conference room on February
1, 1988, they did not hear Matlock indicate that he knew
of Niswonger's union activities prior to his discharge 20
B Contentions
On brief, the General Counsel contends that it is well
settled that questions involving union membership and
union sympathies in the context of a job interview are in-
herently coercive and thus interfere with Section 7
rights, that with respect to the September 17 questioning
of Niswonger about his union sympathies at an employee
meeting, such questions were coercive and they violated
the Act since Johnson first discussed the disadvantages
of unionization, the team concept, the fact that a third
party would put a damper on the team concept approach
and the affects of unionization at similar businesses and
then asked Niswonger how he felt about unions and his
experience with the union during his prior employment,
that Niswonger was discharged primarily because of his
union activities, but also because of his protected con-
certed activities, to wit, his repeated requests for breaks
on behalf of himself and his coworkers, and his question-
ing and complaints about Respondent's failure to abide
by state statutes with regard to breaks, that Johnson's
discussion of the disadvantages of unionization, his ques-
tioning of Niswonger concerning his past experience
with a union and Respondent's preemployment question-
9° John Lovett testified that he believed he remembered overhearing
Matlock indicate that he did not know of Niswonger's union activity
until he was gone, that he believed that Matlock was on the left side of
the room in terms of looking out from the front of the room at the group
assembled, and that at that time 'people were chatting all around" Ac-
cording to the seating arrangement described by the witnesses, It appears
that Matlock would have been on the right side of the room in terms of
looking out from the front of the room at the group assembled Also, as
noted above, Matlock himself thought that the involved conversation oc-
curred when both Lovetts were out of the room
344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing of employees concerning their union sympathies are
sufficient to demonstrate Respondent's antiunion attitude,
that Respondent, though various witnesses, admitted that
Niswonger possessed the requisite skills to perform tasks
at Respondent's facility, and for an employer to dis-
charge a formidable employee who was conspicuous in a
union organizing campaign is certainly indicative of an
unlawful discharge, that Respondent's argument that Nis-
wonger had a negative attitude, did not fit in with the
team concept and had numerous employee complaints
about his attitude and work habits is suspect since there
were no notes, warning slips or any written memoranda
setting forth any of these problems which were dated
prior to Niswonger's discharge, that while Kays incred-
ibly testified that on various occasions several employees,
namely Green, Rodney Robinson, and Crawford, had
complained to her about Niswonger's attitude, on cross-
examination all of the employees denied complaining to
Kays or any other supervisor about Niswonger, the
timing of Niswonger's discharge, particularly soon after
Niswonger became active in initiating a union organizing
campaign at Respondent's facility, is persuasive as to mo-
tivation, that, with respect to whether Respondent had
knowledge of the union activities of Niswonger prior to
his discharge, Matlock's testimony that he called a team
meeting at the request of an employee without having
any knowledge as to the purpose of the meeting is un-
convincing, that Harley credibly testified that in or about
February 1988 in a pretrial meeting, she overheard Mat-
lock say that he was not aware of Niswonger's union ac-
tivities until employee Green requested and was granted
a team meeting on September 17, that Respondent dis-
charged Niswonger within 7 hours of this team meeting,
that Respondent discharged Niswonger for reasons
which were purely pretextual since while Respondent
argues that the prime incident which triggered discus-
sions resulting in Niswonger's discharge was his over-
staying a break on September 17, while waiting on paint-
ing supplies, the record shows that Respondent failed to
discipline Harley who had accompanied Niswonger, that,
assuming arguendo, that it has not been demonstrated
that Respondent had direct knowledge of Niswonger's
union activities, the "small plant" doctrine should be ap-
plied to the instant case and knowledge by Respondent
should be inferred, since at the time involved Respond-
ent employed only between 30 and 50 employees in the
plant, the testimony establishes that many of the manage-
rial, supervisory, and hourly employees socialize with
each other outside of work, at least six employee wit-
nesses testified that they were aware of Niswonger's
union activities prior to his discharge and employees tes-
tified that Niswonger had discussed the Union with
them, that Niswonger repeatedly requested breaks in
compliance with state statutes, that some employees
would question Niswonger about breaks and he would in
turn question a supervisor about breaks, that on at least
one occasion, Niswonger recited the Kentucky statute
concerning breaks at a team meeting, that Respondent
was annoyed with Niswonger's preoccupation with the
requirements of the Kentucky statutes regarding breaks,
and that a resulting discharge for an employee's protesta-
tion of deprivation of breaks in accordance with state
law is also a violation of Section 8(a)(1) of the Act
The Charging Party, on brief, argues that the Compa-
ny's claims that It did not know of Niswonger's activities
are negated by their actions towards him before his dis-
charge and comments made to other employees after his
discharge, that it is unlikely that a company consisting of
a small plant with only 40 plant employees would not
know of an employee's union organization activities in
light of the sophisticated surveillance system provided by
the "team concept", that employees hired earlier in the
year not only knew what Niswonger was doing, but also
knew he did not want them to know about it, that Nis-
wonger's activities in the plant were so pervasive that an
employee requested a team meeting be called to discuss
the matter with him, that it is unbelievable that a super-
visor would allow a group of employees to stop work
and have an organized discussion over something con-
cerning their working conditions without knowing what
the problem is, and team leader Matlock's testimony to
that point is simply inconsistent with the role and duties
of a supervisor and lacks credibility, that more significant
are team leader Matlocks' alleged comments made
during a hearing preparation meeting at which he said he
was not aware of Niswonger's union activities until em-
ployees approached him to arrange the team meeting the
morning of Niswonger's discharge, that Niswonger's
union activities were the motivation for his discharge,
that such a conclusion is buttressed by the timing of the
discharge, that Niswonger was never warned or coun-
seled about his work difficulties and his problems were
never brought to his attention, that the documents relat-
ing to discipline found in his file were admittedly placed
there after his termination, that the discipline handed
down to Niswonger was far more serious than that given
other employees since although Harley overstayed the
leave on September 17, and Harley also was less than se-
rious herself during the above-described "Wanted
Poster" session, she was not reprimanded, that the Com-
pany had no precedent to discharge Niswonger without
warning or counseling, that the manner of Niswonger's
discharge flies directly in the face of the "team concept",
and that the General Counsel, having shown a prima
facie case and the Company's inability to show that Nis-
wonger would have been fired even without his union
activities, leads to no other conclusion than the Compa-
ny discharged Niswonger because of his union activities
in violation of Section 8(a)(3) of the Act
On brief, Respondent contends that Niswonger proved
to be a complete failure as a team member in that rather
than showing initiative and accepting responsibility, Nis-
wonger had to be constantly supervised by his team
leaders, unless team leaders watched and directed Nis-
wonger, he would stand back and wait for others to do
the work and he would often just walk away from a task
leaving his fellow team members to do the job alone,
that this resulted in complaints to management by team
members whose jobs were accordingly made more diffi-
cult, that Niswonger seemed to be on break more fre-
quently than he would be working, that Niswonger
worked in a department, the sole function of which was
UNITED L-N GLASS 345
to cut, break, and grind glass, and therefore the consist-
ent wearing of eye protection in the production area is a
must, that nonetheless, Niswonger had to be repeatedly
reminded to wear his safety glasses, that in response to
the complaints of team members and their own observa-
tions, Niswonger's team leaders repeatedly talked with
him about his poor performance and attitude, that the
"last straw" occurred on September 17, when Niswonger
was discovered taking a 1-hour "break", that "in a series
of meetings," L-N management reviewed the various
problems with Niswonger's performance and attitude and
concluded that they had no alternative but to terminate
him, that L-N management was ignorant of Niswonger's
union support for three reasons, namely, Niswonger led
the members of L-N's management team to believe that
past experience with unions had made him opposed to
unions, Niswonger made great effort to insure his union
support remained a secret from management and Nis-
wonger's union activities were limited and ineffective,
that while at the hearing, Niswonger testified that he
made a direct statement to Plant Superintendent Stoudt
indicating his union support, and he also testified to
making a statement which could be interpreted as proun-
ion in response to Rod Johnson's directing to him an em-
ployee's question about unions, the otherwise unanimous
testimony that Niswonger made great efforts to keep his
union support secret completely undermines the credibil-
ity of this testimony, that contrary to Harley's testimony
that Matlock stated openly he knew of Niswonger's
union support prior to Niswonger's discharge, Matlock
reiterated his prior testimony that he first learned of Nis-
wonger's union support after his discharge, that even if
Respondent's management had known of Niswonger's
union support, this would not have motivated them to
discharge or otherwise discriminate against him, that
whereas one can count the number of Niswonger's con-
tacts for the union on one hand, Gary Smith, the in-plant
leader of the UAW organizing effort at L-N, testified
that he had passed out between 50 and 60 handbills or
cards for the UAW in L-N break areas before the date of
Niswonger's discharge, Respondent's management was
aware of Smith's efforts to organize L-N for the UAW
and, nevertheless, Smith admitted that Respondent has
never discriminated against him in any way, that Nis-
wonger's testimony that Johnson and Stoudt coercively
interrogated him about his union sympathies and Johnson
told him that they were going to do anything that they
had to to keep a union out seeks a finding that an experi-
enced personnel manager, in effect, confessed to an obvi-
ous unfair labor practice to a prospective employee who
expressed union sympathies and then he, Johnson, rec-
ommended hinng the applicant anyway, that ironically,
Smith's testimony negates the possibility that Stoudt
during the interview process was attempting to weed out
or intimidate union supporters since even though Smith
testified that he told Stoudt he presently worked in a
UAW organized facility and evidenced his union sympa-
thies, Stoudt and cointerviewer Tray' told Smith at the
interview that if he passed the physical he would get the
job, that even if L-N is considered sufficiently "small" to
make the small plant doctrine applicable, undisputed evi-
dence establishes that Niswonger carefully shielded his
union support from management, that Niswonger's re-
peated requests for breaks does not qualify as concerted
activity protected under the Act since the General Coun-
sel's evidence falls far short of the requirement that Nis-
wonger speak with or on the authority of other employ-
ees, that even more conclusive is the complete absence
of evidence that Respondent knew of the concerted
nature of Niswonger's requests for breaks, that the final
bar to the General Counsel's prima facie case is the com-
plete absence of antiunion animus, and that even if it is
determined that the General Counsel had established a
prima facie case, a finding of an unfair labor practice
would still not be warranted since L-N's evidence fully
meets any burden to show Niswonger would have been
discharged, even in the absence of protected conduct
C Analysis
Paragraph 5(b)(1) of the above-described complaint al-
leges that during May or June 1987 Respondent, acting
through Stoudt, at the First National Bank in Versailles
coercively interrogated an employee about his union
sympathies Gary Smith's testimony on this point is very
specific, Stoudt asked him, during a job interview, how
he felt about a union On the other hand, Stoudt's testi-
mony is less than unequivocal While asserting that he
did not ask any of the 10 or 12 job applicants he inter-
viewed how they felt about unions, he states that he did
not recall interviewing Gary Smith The other manage-
ment representative present, Tray', did not testify Re-
spondent appears to be satisfied to rest this portion of its
case on the fact that Gary Smith was told at the inter-
view that if he passed the physical he would get the job
and he did, in fact, get the position Notwithstanding
this, however, as pointed out in Service Master, 267
NLRB 875 (1983), "questions involving union member-
ship and union sympathies in the context of a job inter-
view are inherently coercive and thus interfere with Sec-
tion 7 rights" Respondent violated Section 8(a)(1) of the
Act in this regard
Paragraph 5(a)(i) of the complaint alleges that during
August 1987 at the First National Bank in Versailles Re-
spondent, through Johnson, coercively interrogated an
employee about his union sympathies As noted above,
Niswonger testified that during a job interview, not only
did Johnson ask him about his feelings regarding a union
but assertedly Johnson went on to say that Respondent
was going to do all it had to to keep a union out While
Johnson admits that unions were mentioned during the
interview, he takes the position that Niswonger was the
one who brought up the subject, and that he, Johnson,
did not ask about Niswonger's feelings on this subject
nor did he indicate an intent to keep a union out It is
noted that Gary Smith, who was interviewed by Johnson
in May 1987, testified that Johnson asked nothing about
unions, notwithstanding the fact that Smith "belonged"
to a union at his prior place of employment Nonetheless,
in my opinion, Niswonger's testimony should be, and it
is, credited Perhaps Johnson was aware that Nis-
wonger's prior employee, Kuhlman, which was located
across the street from Respondent, was a unionized
plant As will be treated more fully infra, Johnson did
346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not hesitate to express his opinions about unions and he
did not hesitate to put Niswonger on the spot on Sep-
tember 17 That is exactly what Johnson also did during
Niswonger's job interview Johnson conveyed the mes-
sage that Respondent did not want a union And as Nis-
wonger testified, he got the message At one point Nis-
wonger said that unions were needed in some companies
but at another point he said that he "hated to see it when
some employees would go to work and they thought
they didn't have to work for their money" Respondent
violated the Act when Johnson interrogated Niswonger
about his union sympathies
Paragraph 5(b)(u) of the complaint alleges that during
July or August 1987, Respondent, through Stoudt, at the
First National Bank in Versailles coercively interrogated
an employee about his union sympathies As noted
above, Niswonger testified that during his second job
interview at Respondent, Stoudt asked him about his
feelings regarding a union Stoudt, on the other hand,
testified that Niswonger volunteered that he had a bad
experience with the union at his previous employer For
the reasons set forth above, it has been concluded that
Stoudt coercively interrogated at least one of the job ap-
plicants in the first group of employees hired, Gary
Smith Stoudt conceded that he knew that Niswonger's
prior employer was unionized before he interviewed Nis-
wonger Niswonger's testimony that Stoudt asked him
"You all have a union over at Kuhlman, don't you',"
does not conflict with that Niswonger testified that
Stoudt then asked him for his feelings about the union
Niswonger is credited While Stoudt could not even re-
member interviewing Gary Smith, he asserts that not
only can he recall interviewing Niswonger, but he can
recall what was said As treated in footnote 9, supra,
Stoudt also could not recall whether or not King told
him that he, King, had to "repeatedly" ask Niswonger to
leave the breakroom on September 17 21 Stoudt's ques-
tioning of Niswonger about his union sympathies during
a job interview violated the Act Service Master, supra
Paragraph 5(a)(n) of the complaint alleges that on or
about September 17 at its Versailles facility, Respondent,
acting through Johnson, coercively interrogated an em-
ployee about his union activities Asking Niswonger on
September 17 if he liked the union, after he, Johnson,
and Matlock pointed out to Niswonger and the other
team members assembled what they viewed to be the
shortcomings of a union, was coercive interrogation
Conley Detlefson Restaurant, 272 NLRB 993 (1984) Nis-
wonger's very explicit testimony of what was said, as set
forth above, which was corroborated to some extent by
the team members who were present, is credited Re-
spondent violated the Act as alleged 22
Paragraph 6 of the complaint alleges that Respondent
unlawfully discharged Niswonger on September 17
Under Wright Line, 251 NLRB 1083, 1089 (1980), enfd
622 F 2d 899 (1st Cir 1981), cert denied 455 U S 989
2i If King had said that he had to repeatedly ask Isilswonger to leave
the breakroom, it would have raised the question of insubordination
Consequently, the use of this word would have been significant
22 The fact that this paragraph of the complaint speaks to "activities"
vis-a-vis "sympathies' is not significant
(1982), approved in NLRB v Transportation Management
Corp, 462 U S 393 (1983)
General Counsel [is required to] make a prima facie
showing sufficient to support the inference that pro-
tected conduct was a "motivating factor" in the em-
ployer's decision Once this is established, the
burden will shift to the employer to demonstrate
that the same action would have taken place even
in the absence of the protected conduct 14
' 4 In this regard we note that in those Instances where, after all
the evidence has been submitted, the employer has been unable to
carry its burden, we will not seek to quantitatively analyze the
effect of the unlawful cause once It has been found It is enough
that the employees' protected activities are causally related to the
employer action which is the basis of the complaint Whether that
'cause" was the straw that broke the camel's back or a bullet be-
tween the eyes, if It were enough to determine events, it is enough
to come within the proscnpnon of the Act
The General Counsel demonstrated that Niswonger was
an active union advocate Those members of the C B G
team who were hired with him knew of his union activi-
ties and, although he asked them not to tell those mem-
bers of the C G G team who were in the group first
hired for fear they would tell management, each and
every one who was in the group first hired knew of Nis-
wonger's union activity before he was discharged In
fact, at least two of them not only knew about Nis-
wonger's union activity but they also knew he had spe-
cifically requested that they not be told
As noted above, Niswonger often took a stand on
Kentucky labor laws as they relate to breaks and lunch
Respondent was aware that Niswonger was asserting not
only his individual rights but the rights of other employ-
ees, with their assent, in that while he acted as the
spokesman for a group of employees during one of Chris
Wood Foreman's training sessions he proposed, inter
alia, scheduled breaks Foreman testified that as usual she
went to Johnson's office after the session and reviewed
the session with him, and that she discussed the session
with Robinson before Niswonger was fired
Members in the first group hired were upset with Nis-
wonger's union activities, upset enough to take the un-
usual measure of asking to be allowed to hold a team
meeting during worktime with no one in supervision
present And as unusual as this request was, team leader
Matlock granted it assertedly without knowing the pur-
pose of the meeting and apparently without knowing
how much time the meeting would take Had he ever
granted such a request in the past ? Yes, once But since
Matlock "was not sure" he was told the purpose of that
other team leaders' meeting, we do not have unequivocal
evidence that he did in fact ever in the past grant such a
request with first knowing the purpose of the meeting In
view of Harley's testimony about what Matlock said on
February 1, 1988, Matlock knew the purpose of the re-
quested leaderless meeting on September 17 Matlock
and others deny this
Stoudt, the plant and production superintendent, held
his usual morning meeting on September 17 with all of
Respondent's involved employees covering what was
UNITED L-N GLASS 347
going to be done during the day As noted above, Green
testified that he asked Matlock "after the morning meet-
ing was done if we could have a private meeting [all
of the C B G team] without any team leaders or any
personnel people there ", that the understanding
was that the meeting would be held after the morning
meeting, and that the reason he, Crawford, Rogers, and
Rodney Robinson wanted the meeting, as each of these
four individuals understood it, was to tell Niswonger to
"cool it" on the union activity According to Green's
testimony, Matlock agreed to the request without know-
ing the purpose of the meeting Green specifically testi-
fied that the meeting was going to be held "Might after
our everyday morning meeting"
Notwithstanding the fact that assertedly he agreed to
Green's request, Matlock did not allow Green to con-
duct the meeting he requested nght after the everyday
morning meeting Instead, Matlock told the employees in
the C B G group that they were to remain in the cafete-
ria for a team building session in which they were going
to do problem solving
While this meeting is in progress, Johnson walks in
No one disputes Niswonger's testimony that before John-
son came in, he, Niswonger, was expressing his opinion
about Kentucky labor laws as they relate to breaks and
lunch to those assembled, and that King left the meeting
and returned walking into the room behind Johnson As
noted above, Johnson testified that he happened to be
there because he tried to attend Stoudt's morning meet-
ings and this morning he "just happened to walk in a few
minutes late " By all reliable accounts, Stoudt's usual
morning meeting had already ended Nonetheless, John-
son apparently attempts to convey the impression that
Stoudt was presiding at the meeting (an impression Mat-
lock also attempted to convey on surrebuttal) with the
following testimony
Rogers asked a question sort of along the lines of
"what's this I hear about unions?"
And Duke [Stoudt] said, "Well, he's [sic] Rod, let
me refer the question to him"
No reliable witness testified that Plant Superintendent
Stoudt remained behind after his usual morning meeting
to preside over a team building session involving prob-
lem solving with only about 12 employees in the C B G
group along with team leaders Matlock and King And
no one else testified that Rogers did not specifically ask
Johnson this question In fact, Rogers herself testified
"[a]nd I asked Rod [Johnson] "
Added to the questions generated by this record,
namely, why did Matlock agree to Green's request and
instead call this meeting, and why did Johnson want to
create the impression that it was not unusual for him to
be attending such a meeting, should be the question why
did Rogers ask the above-described question Green testi-
fied that before this meeting he "made it clear [to
Rogers] when [he] discussed it with her that it was
just going to be us [team members], we didn't want any-
body else to know about it We was just going to have a
little team meeting with Ben and see if we couldn't get
him to cool it down, give the Company a chance"
Nonetheless, Rogers, who assertedly was already upset
with Niswonger, decided that the union activity should
be discussed in the open Regarding the specific language
utilized, Niswonger testified that Rogers asked "Rod, I
hear someone's passing out union cards and I'd like to
know what can be done about it" Johnson testified that
Rogers asked "what's this I hear about unions" Rogers
testified that she "asked Rod—I just asked him what the
plant views were of a union" Rogers also testified that
"the reason that [she] asked the question [was]
[t]hat [she] had heard that Mr Niswonger and other
employees were passing out union cards" Crawford tes-
tified that Rogers asked whether a union would help or
hurt Green testified that Rogers "asked Rod what he
thought about a union" And Harley testified that Rogers
"asked Rod what he thought about a union or something
like that" As can be seen, there is less than total agree-
ment on the language utilized Niswonger's testimony of
what was said at this meeting is very detailed, however
And in all other aspects, his testimony about what was
said is not disputed and in fact appears to be quite accu-
rate Accordingly, I credit Niswonger's testimony that
Rogers said to Johnson "I hear someone's passing out
union cards " Johnson, after denigrating unions
with the help of Matlock, turns to Niswonger and directs
him to tell those assembled whether he liked the union at
Kuhlman
After hearing this, Green apparently decided that
there is no longer any need to hold a private meeting
with Niswonger Why? Green and the others in the first
group hired for C B G were going to privately tell Nis-
wonger to "cool it" Had Niswonger, in effect, been pub-
lically told to "cool it?" Or had it gone beyond that?
Green testified "[t]his meeting was supposed to take
place instead of what Betty Rogers did" What did Betty
Rogers do? As testified to by Harley, when Rogers
asked her question, all of the team members looked at
Niswonger and then at each other because "we knew
Ben [Niswonger] was probably a part—in hot water over
it" Johnson claims that he asked Niswonger about his
feelings about a union because Niswonger told him about
his displeasure with unions and how he, Niswonger,
thought that they were so counterproductive at Kuhl-
man In other words, while Johnson asserts that he knew
at the time that Niswonger (1) had been the subject of
complaints by his fellow employees, (2) had not partici-
pated fully in the team approach, and (3) had been dis-
ruptive at at least one team building session, he, Johnson,
wanted Niswonger to educate team members on how a
union might cause a problem with the team approach
Johnson apparently takes the position that the employees
needed, to an extent, to hear Niswonger corroborate
what Johnson and Matlock had just said and that the em-
ployees would rely on what they were told by Nis-
wonger That is not what occurred and that is not what
the employees who were present expected The employ-
ees assessed it for what it was, Niswonger was put on
the spot Assertedly, the Rogers' question and what fol-
348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lowed obviated, at least in the minds of Green or Mat-
lock, the need for the private meeting 23
The stated purpose of the purposed private meeting
was to get Niswonger to "cool it" Could it reasonably
be concluded that this message was conveyed at the
public meeting? Or was it that it was no longer necessary
to convey the message? As demonstrated by Niswonger's
answer to Johnson, he, Niswonger, did not "cool it"
Harley's testimony regarding what Matlock said on
February 1, 1988, is credited 24 Management knew about
Niswonger's union activity before he was discharged
And management knew about Niswonger's concerted
protected activity regarding breaks and lunch, and his re-
sponse on September 17 to Johnson's question about a
union, viz, "You'd have to ask me something specific
However, we did shut down for lunch," demonstrated
that he was not going to "cool it" in this regard either
In the alternative, in my opinion the small plant doc-
trine applies to this situation Notwithstanding the fact
that Niswonger was not as open as he might have been
regarding his union activity, the reason he was not was
because he did not want anyone in the first group of the
C B G team members hired to know because he feared
that they would tell management Each and every one of
the individuals in the group, notwithstanding Nis-
wonger's efforts, learned of Niswonger's union activity
And at least two knew that Niswonger was trying to
keep it a secret from them One, Rogers, went around
asking other employees if they knew if Niswonger was
passing out union cards, and she claims that she did not
ask anyone in management While Rogers testified that
she complained to Johnson about Niswonger's lack of
team participation in a conversation initiated by Johnson
on the plant floor about 2 or 3 weeks before Niswonger
was terminated and this was the only time she made such
a complaint, Johnson testified that Rogers came to him
"pretty upset almost in tears and shaking" either the day
Niswonger was discharged or the day before Did
Rogers, at this point, tell Johnson about Niswonger's
union activity? If it was on the same day that Niswonger
was discharged, was it before Rogers, contrary to the
understanding she assertedly had with other team mem-
bers, asked Johnson the question about union activity
during the team meeting which he just happened to
attend? As pointed out in Coral Gables Convalescent
Home, 234 NLRB 1198, 1199 (1978), "[1]t is well estab-
lished that knowledge of an employee's union activities
may be inferred from the record as a whole"
23 As noted above, Matlock testified that on February 1, 1988, after he
indicated that he remembered Green asking for a team meeting on Sep-
tember 17, Green said, referring to the requested private team meeting,
'that since Betty [Rogers] had brought it up in the morning meeting,
they cancelled It and didn t see the need for it Green testified regarding
the February 1, 1988 conversation that he did not hear Matlock say any-
thing about the meeting Green requested on September 17 According to
Matlock's testimony about February 1, 1988, his statement that he re-
membered Green s September 17 request came Just after Green asked him
if he recalled the request and just before Green told him the purpose of
the meeting
24 General Counsel's contention that the National Labor Relations
Board and the courts have long held that the testimony of an employee
witness who is still in Respondent's employ and who testifies against their
employer should be given added weight, is noted
While Respondent did not engage in an antiunion cam-
paign, Johnson's statements demonstrate animus toward a
union
Another factor which must be considered is whether
Niswonger received disparate treatment regarding his al-
leged overstaying of the break on September 17 While
Robinson testified that this would not in and of itself
have resulted in Niswonger's discharge, when considered
in conjunction with Niswonger's other alleged shortcom-
ings, his discharge was warranted The bothersome thing
about taking the position that the alleged overstaying of
his break on September 17 was enough to trigger Nis-
wonger's discharge while it was not enough to warrant
even a word to Harley, who was with Niswonger,
causes one to wonder whether, as Harley, in effect, testi-
fied, Respondent was making something out of nothing
If it was wrong, why was Harley not even told at the
time that it was wrong? This was something other than a
normal break Certain of the workers did not have a
paintbrush with which to paint And King appreciated
this Nonetheless, he assertedly became upset with Nis-
wonger because of what he perceived to be Niswonger's
attitude regarding this matter Stoudt attempted to
convey the impression that Niswonger's conduct bor-
dered on, if it was not, insubordination Nothing that was
said or physically done by Niswonger would justify this
conclusion Again, Harley was with Niswonger and yet
no one in management even said anything to her about
the break In my opinion, this would be disparate treat-
ment if in fact Respondent viewed what occurred re-
garding the break as wrong
The timing of the discharge must also be considered
Within hours of (1) the request by Green for an unsuper-
vised team meeting to tell Niswonger to "cool it" re-
garding his union activity and Rogers' question to John-
son regarding union activity, and (2) Niswonger's answer
to Johnson's question which indicated the strength of his
continuing conviction about complying with the labor
laws regarding breaks and lunch, he was discharged
Before September 17, there were no written reprimands
in Niswonger's file And this was the situation, notwith-
standing the fact that assertedly some of Niswonger's
fellow employees complained about him to management
Strangely, some of these employees deny certain of the
complaints attributed to them by management witnesses
Also, strangely while assertedly Robinson directed
Stoudt to document certain complaints (one being that
Stoudt assertedly had to constantly remind Niswonger to
wear safety glasses) a couple of days before Niswonger's
discharge, such documentation was neither in Nis-
wonger's file nor was it introduced herein Perhaps it is
not so strange when one considers Stoudt's testimony
that the only time he told Niswonger to wear the safety
glasses was on the day he was discharged As noted
above, actually there is conflicting testimony in that
Stoudt also testified that he told Niswonger more than
once to wear safety glasses Niswonger is credited
Stoudt only spoke to him once about safety glasses and
that was on September 17
Another troublesome aspect of this case is the testimo-
ny of Respondent's witnesses regarding the management
UNITED L-N GLASS

349
meetings which were allegedli held on September 17 to
discuss Niswonger's discharge As set forth above, the
testimony conflicts regarding who attended which meet-
ing even if the testimony is considered in terms of a
series of meetings
The reason advanced by Respondent for discharging
Niswonger on September 17 was not the real motivation
The alleged reliance on the September 17 break was a
pretext Although Respondent claims that Niswonger
had a number of shortcomings before September 17,
nothing significant was done in terms of disciplining Nis-
wonger As noted above, nothing was placed in his file
before September 17 For the reasons given above, Rob-
inson is rot credited regarding his testimony that he told
Stoudt to document Niswonger's alleged shortcomings a
couple of days before Niswonger's discharge Respond-
ent decided to document only after it decided to dis-
charge
Respondent does not claim that there was a legitimate
business justification for discharging Niswonger before
September 17 What happened on September 17 regard-
ing the break would not alone, as Respondent concedes,
justify the discharge In light of its treatment of Harley
and in the light of the testimony, the September 17 _break
was not something which would trigger a discharge
This is not a dual motive case under Wright Line, supra
If it were to be treated as a dual motive case, in my
opinion the alleged business justifications advanced by
Respondent do not demonstrate that absent Niswonger's
union and concerted protected activity, he would have
been discharged
CONCLUSIONS OF LAW
1 The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3 The Respondent violated Section 8(a)(1) of the Act
by interrogating job applicants and an employee about
their union sympathies
4 The Respondent violated Section 8(a)(3) and (1) of
the Act by discharging Benjamin Niswonger because he
engaged in union activities and concerted protected ac-
tivities
5 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in an
unfair labor practice, I shall recommend that Respondent
be ordered to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the pur-
poses of the Act
Having found that Respondent discharged Benjamin
Niswonger in violation of Section 8(a)(1) and (3) of the
Act, it is recommended that Respondent offer Benjamin
Niswonger immediate and full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position without prejudice to his seniori-
ty or other rights and privileges, and make him whole
for any loss of pay he may have suffered as a result of
the discrimination against him by payment to him of a
sum of money equal to that which he would have earned
as wages during the period from the date of his dis-
charge to the date on which Respondent offers reinstate-
ment less net earnings, if any, during said period with in-
terest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987) 25
Upon these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed26
ORDER
The Respondent, United L-N Glass, Inc , Versailles,
Kentucky, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Interrogating job applicants or employees concern-
ing union sympathies
(b) Discharging any employee because he has engaged
in union activity or concerted protected activity
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights under Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer Benjamin Niswonger immediate and full rein-
statement to his former or substantially equivalent job
and make him whole for any loss of earnings he may
have suffered by reason of Respondent's discrimination
against him in the manner and to the extent set forth in
the remedy section
(b) Expunge all records kept of Benjamin Niswonger's
activities on September 17, 1987; and make whatever
record changes are necessary to negate the effect of the
disciplinary action taken
(c) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
payroll records and reports, social security payment
records, timecards, personnel records and reports and all
other records necessary to analyze the amount of back-
pay due and the light of reinstatement under the terms of
this recommended Order
(d) Post at its facility in Versailles, Kentucky, copies
of the attached notice marked "Appendix "27 Copies of
said notice, on forms provided by the Regional Director
for Region 9, after being signed by Respondent's author-
ized representative, shall be posted by Respondent imme-
diately upon receipt and maintained for 60 consecutive
25 Under New Horizons, Interest is computed at the short-term Federal
rate" for the underpayment of taxes as set out in the 1986 amendment to
26 U S C § 6621 Interest accrued before January 1, 1987 (the effective
date of the amendment), shall be computed as in Florida Steel Corp, 231
NLRB 651 (1977)
25 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
27 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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"
350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
days in conspicuous places, including all places where (e) Notify the Regional Director in writing within 20
notices to employees are customarily posted Reasonable days from the date of this Order what steps the Re-
steps shall be taken by the Respondent to ensure that spondent has taken to comply
said notices are not altered, defaced, or covered by any
other material