Glass Guard Industries, Inc.

GLASS GUARD INDUSTRIES, INC. 285 Glass Guard Industries, Inc. and Paul Francis Lane, Robert Osborne, Joseph Harvard, and Paul Dupre. Cases 1-CA-9093-1,1-CA-9093-2, 1-CA-9193-3, and 1-CA-9248 June 28, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On February 26, 1974, Administrative Law Judge Ivar H. Peterson issued the attached Decision in this proceeding. Thereafter, both Respondent and the General Counsel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs, and finds merit in certain of Respondent's and Gener- al Counsel's exceptions. Accordingly, we adopt only so much of the Administrative Judge's ruling, find- ings, and conclusions as is consistent with our Deci- sion and Order herein.' 1. We find that Respondent violated Section 8(a)(1) of the Act by the following conduct of its supervisors: (a) In March 1973, employee Robert Osborne spoke to Supervisor Corriveau about bringing a union into the plant. Corriveau told Osborne that any union activity would have to be reported and would result in discharge. (b) On June 22, 1973, President Shulman interro- gated employee Barrette about union activity in the plant. (c) About a week after Paul Lane's discriminatory discharge, Supervisor Morin told Supervisor Lime in the'presence of driver Cote that Lane had been dis- charged because "he was trying to bring in the union," but that Lane's bad accident record was to be the ostensible explanation for the discharge. (d) On April 11, 1973, Supervisor Morin asked em- ployee Osborne about the Union. Osborne shrugged his shoulders and said nothing. Morin then said, "Look, you seen what happened to Lane, you know, 'Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings. it could happen to other people here too." (e) Shortly before Osborne's discharge on May 21, 1973, Supervisor Morin learned from employee Lat- ham that he had obtained a union card from Osborne. Morin stated, "we've got him now even if the set up with Russo doesn't work." (f) On May 19, 1973, Supervisor Morin asked em- ployee Harvard if anyone was trying to get a union in and if Harvard had received a card. When Harvard answered both questions in the negative, Morin said that if a union got in, employees would have to work 7 days a week to get their 40 hours and there would be no overtime. Morin also asked if Osborne had anything to do with the Union. Harvard replied that he did not know. 2. We adopt the Administrative Law Judge's find- ings that Respondent discriminatorily discharged em- ployees Lane, Osborne, and Dupre. We do not adopt his similar finding as to employee Harvard. Harvard was employed as an A-frame driver from August 1971 to June 7, 1973, when he was discharged by his supervisor, Rene Corriveau. Harvard had been an excellent driver until about 3 months before his discharge. During this 3-month period, according to Corriveau, Harvard was not properly performing his duties as a driver: he frequently did not complete his assignments, his truck repeatedly broke down, and glass kept breaking on his truck. On June 7, Harvard made a delivery trip to New York City, but his motor broke down and he was unable to complete his deliv- eries because of delays in making repairs. When he returned to Respondent's plant, Corriveau asked him what had happened. Harvard replied that he had had trouble on the road. Corriveau then discharged him saying, "I'm sick and tired of your complaining and breaking down and coming back with glass." When Harvard took up the matter of his discharge with Traffic Department Manager Kaufman, Corriveau's superior, Kaufman said, "I don't want to go over Rene's head right now. Call me up tonight and we'll see if he's cooled off by then." The discharge re- mained effective. Unlike Lane, Osborne, and Dupre, Harvard was not an active protagonist. So far as appears, his union activity consisted of nothing more than the signing of a union authorization card at the behest of Osborne. There is no evidence that Respondent was aware of this fact. On the contrary, approximately 2 weeks be- fore his discharge, Harvard had answered negatively questions by Supervisor Morin as to whether he knew of union activity or had received a union card? 2 Former Supervisor Lune, who had been discharged by Respondent, and was a witness for the General Counsel, testified that sometime between March and June 1973 he had a conversation with Harvard about the unsatis- factory condition of a truck and that Harvard had said that Respondent Continued 212 NLRB No. 47 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In order to prove that Respondent discriminatorily discharged employee Harvard, the General Counsel has the burden of proving that Harvard was dis- charged because he was active, or because Respond- ent believed he was active, on behalf of a labor organization. We do not believe that the General Counsel has met that burden. Not only is there a lack of evidence that Harvard was active on behalf of a labor organization, there is also a paucity of evidence to indicate that Respondent suspected him of such activity. In this state of the record, we are not pre- pared to say that Respondent's explanation for the discharge of Harvard is so unreasonable as to give rise to the inference that another, illegal, motive was the real reason for the discharge. Accordingly, we shall dismiss the complaint as to Harvard. THE REMEDY As we have found that Respondent engaged in cer- tain unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. As we have found that Respondent unlawfully dis- charged employees Paul Francis Lane, Robert Os- borne, and Paul Dupre, we shall order that Respondent offer them full and immediate reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privi- leges, and make them whole for any loss of earnings they may have suffered by reason of the unlawful termination of their employment. Respondent shall pay to each of them a sum of money equal to that which each would have earned as wages from the date of each employee's unlawful termination to the date of the offer of reinstatement less any net earnings received during said period. Backpay shall be com- puted on a quarterly basis in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and shall include interest at the rate of 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716. AMENDED CONCLUSIONS OF LAW Delete Conclusions of Law 2 and 3 of the Adminis- trative Law Judge's Decision and substitute therefor wouldn't get away with this kind of vehicle condition and the type of loads that were going out if the ICC knew about it or if there were a union in the picture In his testimony on cross-examination as to this conversation with Lime, Harvard could not fix the date when it occurred , except sometime in 1973, and he did not mention the remark about a union . Such testimony, relied on by the General Counsel, is obviously an unreliable basis for infer- ring knowledge on the part of Respondent of Harvard's union interest the following: "2. By discharging employees Paul Francis Lane, Robert Osborne, and Paul Dupre because of their activities on behalf of a labor organization, Respon- dent discriminated against employees in violation of Section 8(a)(3) of the Act. "3. By the foregoing conduct, by coercively inter- rogating employees concerning union membership and activities, and by threatening employees with dis- charge, the spread of the workweek, and a reduction in overtime because of union activities, Respondent interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act. "4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that Respondent, Glass Guard Industries, Inc., Webster, Massachusetts, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in any labor organi- zation by discharging employees or otherwise dis- criminating in regard to their hire or tenure of employment or any term or condition of employment. (b) Coercively interrogating employees concerning union membership or activities, and threatening em- ployees with discharge, spread of the workweek, and reduction in overtime because of union activities. (c) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, and to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employ- ment as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to Paul Francis Lane, Robert Osborne, and Paul Dupre immediate and full reinstatement to their former jobs or, if these jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of pay suffered by GLASS GUARD INDUSTRIES, INC. 287 reason of his discharge in the manner set forth in the section of this Decision and Order entitled "The Rem- edy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its plant in Webster, Massachusetts, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Re- gional Director for Region 1, after being duly signed by the Company's representative, shall be posted by the Company immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed, insofar as it alleges violations of the Act not specifically found herein. MEMBER JENKINS, concurring in part and dissenting in part: I agree with my colleagues' findings that Respond- ent violated Sections 8(a)(1) and (3) as set forth in their opinion. However, I disagree with their conclu- sions that Respondent did not discriminatorily dis- charge Joseph H. Harvard. Instead, I would adopt the Administrative Law Judge's findings that Harvard was discriminatorily discharged in violation of Sec- tion 8(a)(1) and (3) of the Act. On May 19, Supervisor Morin unlawfully inquired of Harvard if he knew of anyone in the plant who was trying to get the Union in, if he (Harvard) had re- ceived a union card or if he had anything to do with the Union. Morin thereafter threatened that if the Union got in, the employees would have to work 7 days a week to get their 40 hours in and there would be no overtime. During that conversation Harvard was noncommittal and denied that he had received a union card. Were this the sum of the evidence regard- ing Respondent's knowledge of Harvard's union ac- tivity or sympathies then perhaps it would be reasonable to conclude that General Counsel had not met his burden of proof as to the discriminatory na- ture of Harvard's discharge. The record contains more, however. During the week he was discharged, Osborne, here- in found to have been discriminatorily discharged, gave Harvard a union authorization card. Harvard "talked union" with Osborne and other employees. In addition, Harvard had been complaining about the poor conditions of Respondent's trucks, and especial- ly the fumes in his truck which made it dangerous to drive. Between March and June, Harvard had numer- ous discussions with Supervisor Lime about these matters. Indeed, during\the week when he was dis- charged, he complained bitterly and asked that the trucks be fixed "before someone gets killed." Finally, it appears that Harvard told Lime that the Respond- ent would not get away with this kind of vehicle con- dition and the type of loads that were going out if the ICC knew about it or if there was a union in the plant. Harvard was hired in August 1971. He was consid- ered an excellent driver by his supervisors until about 3 months before his discharge. It appears that Respondent's dissatisfaction with Harvard com- menced almost simultaneously with the union organi- zational activity in the plant. While it is true that Harvard had problems with breakdowns and deliver- ies, he always called the plant and cleared the action to be taken with Traffic Department Manager Kauf- man. Moreover, during his period of employment Harvard received only one indefinite warning. On the last day of his employment the alternator on Harvard's truck broke down. He called the plant and made arrangements to have the truck fixed. As a re- sult of the delays in repairs he was unable to complete his deliveries that day. Supervisor Corriveau admitted he had no idea what had happened to Harvard's truck and made no effort to find out prior to Harvard's discharge. In addition, Corriveau admitted that he never investigated to see what had occurred in the past as to Harvard's break- downs or to why his trucks were breaking down. He further admitted that he had no records as to how much glass Harvard returned to the plant. Finally, Corriveau also testified that all drivers had break- downs and failed to complete their runs from time ',to time, and that Schofield, Harvard's replacement, had problems with the truck Harvard had driven prior to his discharge.4 In sum, I find that the credited evidence presented by the General Counsel clearly establishes that Har- vard told Supervisor Lime that he (Harvard) was in 3 In the event that this Order is enforced by a Judgment of a United States 4 In this regard the record shows that LeBeau indicated he sometimes had Court of Appeals, the words in the notice reading "Posted by Order of the a breakdown every week and had one engine blow up and then dropped two National Labor Relations Board" shall read "Posted Pursuant to a Judgment drive shafts, another driver completely "totaled" a truck without being dis- of the United States Court of Appeals Enforcing an Order of the National charged, and that Harvard flipped a truck and blew an engine during the Labor Relations Board." period when he was considered an excellent driver. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD favor of the Union, that Respondent interrogated and threatened Harvard, that Harvard received a union card and talked in favor of and supported the Union, and that Harvard was discharged thereafter for an occurrence which had frequently happened to other drivers, for which they were not discharged and that Respondent failed to investigate the reasons for Harvard's truck breakdowns prior to Harvard's dis- charge. Thus, the only reasonable inference that I can draw from these facts, occurring as they did in the midst of flagrant unlawful conduct on the part of the Respondent in its effort to keep its employees from seeking union representation, is that Respondent knew of Harvard's prounion feelings and feared, or at least suspected, that he would pick up where discrimi- natees Lane and Osborne left off. Accordingly, it seized upon Harvard's truck breakdown and failure to complete his deliveries as a pretext for discharging him. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL offer to Paul Francis Lane, Robert Osborne, and Paul Dupre immediate and full re- instatement to their former jobs or, if these jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges. WE WILL make whole Paul Francis Lane, Rob- ert Osborne, and Paul Dupre for any wage losses suffered by them as the result of our discrimina- tory conduct. GLASS GUARD INDUSTRIES, INC (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 7th Floor, Bulfinch Building, 15 New Chardon Street, Boston, Massachusetts 02114, Tele- phone 617-223-3300. DECISION WE WILL NOT discourage membership in any labor organization by discharging employees or otherwise discriminating in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT coercively interrogate our em- ployees concerning union membership or union activities, or threaten our employees with dis- charge, spread of the workweek, or reduction in overtime because of their union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, and to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. STATEMENT OF THE CASE IvAR H. PETERSON, Administrative Law Judge: I heard this case in Worcester, Massachusetts, on 6 days commencing October 23 and concluding on November 14, 1973, based on charges filed by the individuals named in the caption, against Glass Guard Industries, Inc , Webster, Massachu- setts, herein called the Company or Respondent. In sub- stance, the consolidated complaint alleged that the Company, by actions of various supervisory employees, in- terfered with, restrained, and coerced its employees in viola- tion of Section 8(a)(1) of the Act and, in addition, terminated the individuals named because of their union and/or concerted activities, in violation of Section 8(a)(3) and (1) of the Act. In its duly filed answer, the Respondent denied that it had engaged in any unfair labor practices. Upon the basis of the entire record in the case,' including my observation of the witnesses as they testified and a care- ful consideration of the briefs filed by counsel for the Re- spondent and counsel for the General Counsel on January II and 14, 1974, respectively, I make the following: 1 The Respondent's motion to stnke certain testimony of witnesses Lime and Osborne is hereby denied GLASS GUARD INDUSTRIES, INC. 289 FINDINGS OF FACT borne obtained a Teamster's card and signed it, but made no effort at that time to pass out cards to other employees. 1. THE BUSINESS OF THE RESPONDENT On the morning of April 11 Lane was sent on an errand and The Respondent is engaged in the manufacture of tem- pered and insulated glass. Its predecessor, Air Space, Inc., employed approximately 30 persons and had one trailer driver and a total of four or five drivers. In May 1973, the Respondent had a total complement of 220 employee, in- cluding approximately 40 in its traffic department. At the time of the hearing, it had approximately 350 employees in three manufacturing departments-cutting, tempering, and insulating-and other departments supportive of the manu- facturing operations. It admittedly is engaged in commerce within the meaning of the Act. David Parkinson, the Respondent's employee relations manager, testified that when he was hired on May 14, 1973, the Respondent had no written or uniform personnel poli- cies governing the conduct of the employees. Each depart- ment, and often the shift supervisor involved, handled matters of discipline individually and as the particular su- pervisor viewed the matter of industrial justice. As a part of his duties, Mr. Parkinson was assigned the task of attempt- ing to institute personnel policies and he did draw up a personnel policy booklet which was printed and distributed to employees the week after June 26. However, supervisors and department heads did not uniformally enforce these policies and Parkinson testified that "there is so much pres- sure on getting glass out the door the industry is almost chaotic in this regard in getting the orders out . . . so when I talk about safety and personnel, people start laughing." Inasmuch as three of the alleged discriminatory termina- tions concern the traffic department, it seems advisable at this point briefly to describe it. Robert Kaufman is the manager of the department and reports directly to the plant manager. While he has overall responsibilities for the de- partment, the direct control of employees is left to the vari- ous supervisors who report to him. Rene Corriveau was the A-frame supervisor, which included supervision of the A- frame loaders and the A-frame drivers. Employees involved in the loading, receiving, shipping, and driving of trailer trucks were under the supervision of William Morin. Arthur Lime, the night-shift supervisor, was in charge of loading and unloading trailers. In addition the Respondent em- ployed an assistant to the traffic manager. H THE ALLEGED UNFAIR LABOR PRACTICES A. Background Paul Lane testified that about a month before he was terminated he became interested in attempting to bring in a union, and spoke to Osborne about the matter. According to Osborne, he mentioned the subject to Corriveau and the latter told him that any union activity would have to be reported and would result in discharge. Corriveau denied that any such conversation occurred. According to Lime, he and Corriveau had several conversations before Lane's dis- charge wherein Corriveau stated that any union activity had to be reported right away "upstairs." Again, Corriveau de- nied that any such conversation occurred. On April 4, Os- continued about 3 miles further to the union hall and there obtained authorization cards. After he returned to work he spoke to employees about signing union cards and at lunch he signed up a number of employees. When Lane came back from lunch, he testified that Mo- nn was "waiting for me," and that Morin said, "You're all done," and handed him two paychecks. Lane asked Morin why he was being terminated, and testified that Morin re- plied, "If you want to know why, you will have to come upstairs." Lane testified that they went upstairs to Kaufman's office and that he asked Kaufman, "I want to know why I'm fired." Kaufman, so Lane testified, an- swered, "If you want a reason, it's for not punching out for lunch." Lane asked Kaufman for a photostatic copy of his timecard and then departed. He encountered some employ- ees on his way out and testified that he told them, "I was just fired for union activities." When he got home he real- ized that his paycheck was $100 short, so he went back to the plant and received another check for that amount from Kaufman. Kaufman testified that Lane was at the hospital, while his wife was in labor for 9 hours and that he was on company time. Lane testified that his child was born at 1:15 during the afternoon of March 2 and that he then was at the Ford Motor Company in Dearborn, Michigan. Lane added that he telephoned and believed that he talked to Morin and certainly talked to Kaufman. According to him, he told Kaufman that his wife was in the hospital and that there might be complications in effecting delivery. Shortly there- after, Lane was able to speak to his wife at the hospital and was informed that there were no complications. He there- upon telephoned Kaufman and told him that there was nothing wrong and that he would drive back. He left Dear- born at approximately 2 p.m. and arrived back at the plant at 8 o'clock the following morning. He went to the hospital and stayed there approximately 45 minutes. Then he came back to the plant after having fueled the truck. On another occasion Lane made a trip to North Carolina and Morin suggested the route that he should follow. How- ever, Lane took a shortcut through the mountains by way of Cumberland, Maryland, and made the trip in approxi- mately 2 hours less time. When he returned, Morin asked why he had not taken the route the latter had suggested and reprimanded him. I On another occasion Lane and two other employees, Wil- liam Cody and Robert Bouche, were driving two trucks to Cleveland, Ohio. While in Cleveland, Lane went into the sleeper and managed to get 2 hours of sleep while the truck was being unloaded. He had been driving for some 15 or 18 hours. About 100 miles from Cleveland the engine of the truck, which was not a new one, blew up. They then drove to the next rest area, about 4 miles, and telephoned the plant. Lane telephoned a number of places in an effort to get a new truck and finally was able to obtain one in Cleve- land. After a wait of about 2 hours the truck arrived. While waiting for the substitute truck, Lane had taken the vehicle he had been originally assigned and had gone to pick up his load of glass. The other two drivers hitchhiked back to the 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD disabled truck. Lane acknowledged that on one occasion he failed to refuel a truck and that another driver later ran out of fuel after traveling about 80 miles. According to Lane, he had "put in a long week" and testified that the driver who ran out of fuel "could have went 6 [miles] the other way and refueled it." Lane testified that Kaufman stated that the incident "was as much his [the other driver's] fault for not checking as mine for not fueling before I came in." This fueling incident occurred about a month before he was terminated. Lane testified that he came to work at 8 in the morning on April 11 at approximately 9:30 and was sent to Worces- ter to have a tarpaulin repaired. It was on this occasion that he went to the union hall and returned to the plant at about 11:30. When he returned from lunch Morin was waiting for him with his paycheck. He then went to see Kaufman and testified that the latter "said if I need a reason, it's for not punching out for lunch." Frederick Anderson, who had worked for the Respond- ent as a maintenance accountant for approximately a year before he retired in August 1973, testified that on a Thurs- day a notice was placed on the bulletin board stating that the men would get paid at the end of their shift, which would be Friday at 11 o'clock, rather than on Thursday. The group of employees, three in number, went to Parkinson's office and stated that they would have difficulty getting their checks cashed on Saturday. However, Parkinson tele- phoned the Commerce Bank in Webster and was told that the bank was open from 9 to 12 on Saturday and that they would have no trouble cashing their checks. The men were still somewhat put out about the change and, according to Anderson, as they left Parkins' office Paul Dupre stated, "What this place needs is a goddamn good union." Ander- son did sign a union card at Dupre's solicitation on June 11. Raymond Barrette testified that about a week or two after Dupre was discharged he had a conversation with Norman Shulman in the office of David Emory. Barrette testified that while he was in Emory's office President Shulman came into the office and stated that he wished to talk to Barrette. According to Barrette, Shulman stated that he asked, "Can you tell me what the heck is going on over here?" Thereaf- ter, according to Barrette, Shulman " mentioned about the union, finding out about the union." Barrette recalled tell- ing Shulman "If the union gets in, I work here, I'm gonna go in. What do you want me to do?" Frank LeBeau, a truckdriver for the-Respondent, testified that, during his 3 years as a truckdriver, on one occasion when he was going to a jobsite the engine blew up and that this occurred about a year and a half previously. He further testified that he received no warning or reprimand from his supervisor. B. The Discharges Counsel for the General Counsel, in his brief, argues that the reasons advanced by the Respondent for the termina- tion of Lane, Osborne, and Harvard are "demonstrably false." With respect to Dupre, he asserts that an examina- tion of the records of Dupre and two other employees, also charged with excessive absenteeism, "reveals a classic, text- book case of disparate treatment." On the other hand, counsel for the Respondent urges that the case presented by the government "rests on too weak a foundation to withstand the substantial evidence test" with respect to the terminations and that the government's evi- dence "must create more than suspicion to support the in- ference that the Company had knowledge of union activities and the evidence cannot then be permitted atop this infer- ence to conclude that the employees were discharged for union activities." Lime testified that the week after Lane's termination he and Morin and another truck driver named Cody, were talking and "the subject came up about Paul Lane not being around." According to Lime, Morin "told me that Paul was fired for union-he was trying to bring in the union, but he had a bad record with accidents . . . and that's what anyone else was to know as far as they were concerned." Lime further testified that during the week be- fore he and Osborne were discharged he had a conversation with,Morin during the afternoon in the cafeteria and that Morin said "that they had suspected that Osborne was pick- ing up where Lane left off ...'trymg to get enough signa- tures to bring the union into the shop." Lane was hired in November 1972 and was discharged on April 11 the following year, allegedly for not "punching out" on leaving the Respondent's premises to go to lunch. This occurred within moments after Lane had passed out and obtained signatures on union cards at the plant. In his brief, counsel for the Respondent states that it is not con- tended "that Lane's discharge was based solely on this inci- dent, but rather that there were numerous incidents in his 5 months of service that had bearing on his effectiveness as an employee." Morin testified that on March 18, 1973, when he was serving as a truckdriver, he ran out of gas and stated that Lane was responsible for that mishap because he had failed to fuel the truck when he returned from a trip immedi- ately preceding this incident. This resulted in a rather heat- ed argument between Morin and Lane, with Morin stating that he and his partner each lost about $60 or $65 in pay. Shortly after the foregoing incident, Lane went on a trip to Lexington, North Carolina, and refused to follow the Respondent's designated route. This resulted in an argu- ment between Lane and his codriver, Francis Demand, with the latter notifying Kaplan, the assistant to Kaufman, that he would never again drive with Lane. Kaufman testified that Lane's logs for April 2 and 3 demonstrate that he had a breakdown in Michigan and outside of Cleveland. According to Kaufman, Lane had switched trucks and with regard to the truck that he was not authorized to drive "he blew the engine on it." This trip was a two-truck, three-man trip. After blowing the engine, so Kaufman testified, Lane "left the driver with the break down and took off in the truck that he was originally as- signed to drive" and the other two drivers had to hitchhike to the nearest telephone. A third incident occurred in Dearborn, Michigan, when Lane was told by two other drivers, Crania and Demand, that he had a broken wheel lug and that it should be fixed before the truck was loaded. Lane allegedly disregarded this information, stating that he would wait until he reached Toledo. About 2 miles from his stop in Dearborn, the truck broke down and the other drivers involved in the Ohio GLASS GUARD INDUSTRIES, INC. 291 incident complained to Morin who,-in turn reported the complaints to Kaufman. On the day of Lane's termination, Morin reported to Kaufman that Lane had left the premises for lunch without punching out, and that he had previously been warned about this. Upon his return to the plant, Lane found Morin waiting for him at the timeclock and Morin told Lane, "You're all done" and handed him his paycheck. Morin testified that in a discussion with a number of drivers he told them "that in my personal opinion I didn't want the union, that I did not like the union, I was hurt by a union before," and added that if a union came into the plant and he was limited to 40 hours a week he would "have to leave myself because I couldn't support a family of the size I got on 40 hours a week." He added that prior to this meeting he had talked to Kaufman about the Union on many occasions. LeBeau related that in late October 1972, while he was in Monticello, New York, the drive shaft of his truck fell out as he was going down a hill. He was not given any warning or discipline concerning this incident. In addition, in March 1973, as he was coming out of New London and while going up a hill, he lost the drive shaft. He received no disciplinary action for this incident. According to LeBeau, he has no prescribed route but is only told where his first stop is and he chooses his own route. He also related that he ran out of gas a couple of times because the driver who preceded him failed to fill the gas tank. Kaufman testified that Lane's failure to punch out for lunch was the final incident that occasioned the discharge, and that Lane had been warned about this previously. Kaufman also testified that there were three other incidents: That Lane,visited his wife in the hospital all night on com- pany time, had failed to follow prescribed routes, and left two other drivers on a turnpike in Ohio and drove the wrong truck. Kaufman further testified that Lane had also broken the rule which required drivers to fill the gas tank when returning from a trip. Morin testified that he noticed that Lane had left for lunch without punching out and reported this to Kaufman. Monn related that Kaufman told him to bring up Lane's timecard, but said nothing about the timecards of the two employees who were with Lane and who also had not punched out. Morin admitted that he did nothing to Per- kins, and, in fact, that afternoon he initialed the timecard of Bougie for not having punched out for lunch. Morin further admitted that at one time or another, 90 percent of the truckdrivers left the plant without punching out. Morin admitted that he caught his brother-in-law, Cote, "a few times" and that he caught Demand and only told him to start punching in and out 2 He admitted that no one else had ever been terminated for this reason. Shortly after Lane was discharged, Morin told Osborne and other employees that what had happened to Lane could happen to them, and he asked the men to punch out and in for lunch for the time being. At about 6:30 on the evening of April 11, after he had returned from a trip to the Boston vicinity, Osborne turned in his receipts to Morin and testified that Morin "asked me about the union. I just kind of shrugged my shoulders and said nothing." He said, "Look, you seen what happened to Lane, you know, it could happen to other people here too." Osborne testified that he "just shrugged my shoulders like I didn't know that much about it and that was it." After Lane was discharged Osborne passed out some union cards. On May 17, he passed out some union cards to employees including Monroe Latham. That evening, he left for Balti- more and next reported for work on Monday, May 21. His timecard was not in the rack, and he went to Kaufman's office. Kaufman, so Osborne related, stated that he would like to speak to him and Kaufman told him "that he had to let me to." Osborne asked the reason and Kaufman replied, "You know the reason." As they walked downstairs out into the yard, Osborne "asked if it was due to me going to the Labor Relations Board because of Lane," and Kaufman said, "No, you know the reason." He was then given his paycheck and told to get off the premises. About 10 days before being discharged, Morin advanced Osborne $40 of which Osborne spent approximately $24. He turned in the money receipts and Kaufman later came and gave him $24 and some change, apparently thinking Os- borne had used his own funds. Osborne told Kaufman that he did not use his own funds and that Morin had advanced him $40. Kaufman replied, "All right, keep the change be- cause I'll probably be sending you out in the middle of the night." Thereafter, Kaufman never asked him for a return of the money. Osborne admitted that he once stopped out- side his wife's beauty parlor but stated that no supervisor talked to him about that. At that time, Morin was not a supervisor, but he told Osborne instead of stopping at his wife's beauty parlor, he would be better off to stop at a diner. Osborne admitted that on one occasion he had taken the wrong truck, and testified that he did so because Lime had assigned that truck to him. While working for the Re- spondent, he never got a written or oral warning nor had he ever been suspended. Osborne, who began work on Monday, March 12, 1973, as a driver of both A-frames and trailers, admitted that he stopped for about 10 minutes at his wife's beauty parlor at about 12 o'clock, his lunch hour. He stayed there approxi- mately a half hour and then took his loaded truck to the destination where he was delivering the glass. Osborne testi- fied that while traveling on the Connecticut turnpike about April 3, he stopped at a truckstop and attempted to pick up a radiator cap, but was told that the truck was too old and that the establishment did not have a radiator cap. He turned the truck around and attempted to bring it back with no water. Osborne related that the truck "blew up" and that the radiator first boiled over. He stopped in a rest area and called the Respondent's plant and spoke to Lime. The latter tolld Osborne to bring the truck back but Osborne stated that it was not feasible to do so. About 15 or 20 minutes later, Morin called him and stated that he would obtain a wrecker which did arrive and brought Osborne's truck in. On April 18, Osborne made a trip to Baltimore and in backing a tractor trailer he struck an employee's car. About the end of April, Osborne went to Rhode Island in an A-frame and broke some glass, which he left on the 2It should be noted that Demand was subsequently made a foreman edge of the highway. 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After Lane's discharge, Osborne began passing out union authorization cards . On Thursday, May 17, he gave a card to Monroe Latham, an employee. Osborne left that evening for Baltimore. That same afternoon, Morin and Lime had their customary coffee in the cafeteria . According to Lime, Morin stated that the Respondent suspected Osborne was picking up where Lane had left off, namely, passing out union cards. Morin said that Osborne was being sent out with an employee, one Russo, who was opposed to the Union, and that if Osborne engaged in any union activity, Russo would report it and Osborne would be discharged. Morro testified that he did not recall having had this conver- sation, but did not say anything about Russo. On Friday, May 18, Morin and Lime had their customary coffee about 4 o'clock and, according to Lime, Morin said that Latham had had an argument with Kaufman in the morning and had shown a union card to Kaufman. Morin said that Kaufman and Daily, the plant manager, wanted to know where the card came from so they could "fire him too." Kaufman initially testified that he made the decision to discharge Osborne on Monday, May 21; later he testified that he could not recall when the decision was made; he finally testified that the determination was made on Thurs- day, May 17. Kaufman did not consult with Morin before terminating Osborne. He testified that Osborne was dis- charged for the following reasons: He parked one of Respondent's vehicles in front of his wife's beauty parlor; he burned out an engine because of lack of water; and dropped glass on the highway. Kaufman related that the reason that actually caused Osborne's discharge was that he failed to "even up" on his expense money and thus owed the Respondent $15.80. Kaufman admitted that, except for the expense money, there were no written records of any of these reasons. He testified that he did not know when the expense money problem with Osborne began, that Osborne was never given a written warning for this, and that he (Kaufman) did not deduct the money from Osborne's check as this was done by the payroll department. Kaufman never inquired as to whether the money could be withheld and admitted that he continually advanced Osborne money dur- ing the latter's entire period of employment , and that he did not remember when he last asked Osborne to repay the money. Kaufman also testified that on May 17, Osborne was given an advance to go to Baltimore. Kaufman testified that he never told Morin to stop advancing money to Os- borne and that he did not see Osborne on May 17. Osborne had never refused to go without advance money and Kauf- man could not recall if he asked Osborne for the money on the date of the latter's discharge ; he never attempted to collect the money at any later time. Osborne testified that he had received a $40 advance about 10 days before he was terminated and that he spent approximately $24 of this and turned in receipts. Kaufman attempted to reimburse Osborne in cash and Osborne told Kaufman of the advance and asked what to do with the remainder. Kaufman replied that he should keep it as he would probably be sent out in the middle of the night. Kaufman never asked Osborne to return the money. On Monday afternoon, May 21, Morin and Lime met in the cafeteria at approximately 4 o'clock. Morin told Lime that Osborne had been discharged because of the Union, but that he had a bad driving record and that was the excuse the Respondent was going to use. Morin testified that he did not think he had this conversation with Lime and did not recall stating that Lane was terminated because of his union activities. Late in May, Parkinson changed the payday for the 3-to- 11 p.m. shift from Thursday to Friday. The maintenance employees were somewhat upset by this as they felt it would be difficult to cash their paychecks on Saturday . According- ly, they went to see Parkinson in an attempt to have him repeal this change. At the end of the meeting, Dupre said, "What this place needs is a god damn good union." Early in June, Dupre met with Frank Trojan from the Glass Blowers Union and asked Trojan to send him some authorization cards. Dupre received the cards on the Satur- day before June 11 and, on the latter date , began passing them out. Within 3 days, he had signed up 25 to 30 employ- ees. He was the only production or maintenance employee passing out union cards. Prior to June 12, Dupre had never been suspended nor had he received a written warning. According to David Hemmeter, the plant engineer , Dupre had been warned sev- eral times, but there was no record of this. Dupre worked a regular day on June 13 and had been given June 14 off in order to,attend his daughter 's gradua- tion. On June 15, according to Dupre, he called in at 11:30 in the morning and said he was sick and would not be able to come to work. Dupre testified that he was called by Hemmeter on Sunday, June 17, and told that he was dis- charged. Hemmeter's version is that Dupre called in about 2:30 p.m. and that, in essence, Dupre was drunk and unable to come to work . Hemmeter stated that he made the deci- sion to discharge Dupree about 5 p .m. and added that Dupre had had a number of unexcused absences before this. The report of the Massachusetts Division of Unemploy- ment Security indicated that Hemmeter had previously tes- tified that Dupre was discharged for not reporting to work on Saturday, which was Dupre's,day off. The record shows that employees with attendance records much worse than that of Dupre were not discharged. Thus, Richard Hatfield, who was rehired on May 26, had a contin- uous record of taking off one day a week without permis- sion. Moreover, he seldom called in. Terry Donovan, general foreman of insulating and previously in production control, explained that Hatfield was a very capable employ- ee and, therefore, his absences were tolerated even though Hatfield "fouled things" up by not reporting to work. Richard Maynard worked in the same department and on the same shift as Dupre, and was hired after Dupre. May- nard had been given a 3-day suspension on April 27, be- cause he did not appear for an assigned shift and failed to notify anyone of his absence. Maynard's attendance record for May 19 through October 6 shows numerous and repeat- ed absences and lateness. Hemmeter testified that Maynard had a series of absences after this, but they were all excused. However, Hemmeter admitted that he had no records or any knowledge of why Maynard was absent on any given date and he did not know if Maynard was frequently late. Maynard was never warned , suspended, or discharged after GLASS GUARD INDUSTRIES, INC. 293 May 27 3 Some of the reason for Maynard's "excused" ab- sences were taking his wife to the doctor and dentist, going to the dentist himself, making car payments and coming in late because the baby was colicky. Hemmeter admitted he only asked Maynard on one occasion to try to arrange these appointments and payments during nonwork time, and Maynard testified that he did not try to change the time of these appointments. Concluding Findings Upon the entire record I am convinced that the Respon- dent terminated Lane, Osborne, Harvard, and Dupre be- cause of their union and concerted activities, and, in addition, engaged in an aggressive antiunion campaign, principally through Morin. When Lane began passing out authorization cards on April 11, Morin and Kaufman learned of this immediately and, I am convinced, dis- charged him for what was an admittedly pretextual reason. As soon as Morin and Kaufman learned, through Latham, that Osborne was continuing to pass out cards, Osborne was summarily discharged. Harvard had been the target of sev- eral instances of conduct violative of Section 8(a)(1) and, moreover, had made prounion statements to a supervisor. In addition, he was complaining about the condition of vehicles and mentioning the Union and the ICC. Dupre had independently decided that a union was need- ed and had previously voiced this sentiment to a supervisor. Dupre passed out his first union card on June 11, received his first recorded warning on June 12, and was terminated for not reporting for work on June 15. Two other employees had worse attendance records than Dupre over a longer period of time and were not discharged. One of these, May- nard, worked on the same shift and at the same job as Dupre. Maynard had previously been suspended by the Respondent and was described by Hemmeter as young and inexperienced. However, Maynard was not discharged. Lat- ham had had an argument with Kaufman that morning and had shown Kaufman a union card. Morin stated that Kauf- man and Daily, the plant manager, wanted to know where the card came from so they could "fire him too." Morin and Lime then went to Morin's office which was adjacent to the office of Kaufman. Kaufman and Daily were in the office and the latter asked Kaufman if he had "gotten anything on it yet." The three of them then had a conversation in anoth- er room and, when Morin came back, he told Lime that "they" wanted to know where the union card came from. Morin and Lime then went downstairs to talk to Latham. At this point, Lime, an admitted supervisor, actually saw the union card. Latham admitted to Morin that he had obtained the card from Osborne. Morin then stated "we've got him now even if the set up with Russo doesn't work." Morin related that Latham did have an argument with Kaufman but that it was Lime who mentioned the Union card. It is evident, therefore, that Morin had actual knowledge, by May 18, that Latham had turned in a union card to the office and that the card had come from Osborne. On Saturday, May 19, Morin and Harvard were gathered 3 Indeed, Maynard states that as of the date of his testimony, November 13, he was still staying out of work and reporting late. in the cafeteria. Morin asked Harvard if anyone was trying to get a union in, to which Harvard replied in the negative. Morin also inquired if Harvard had received a union card and again Harvard stated that he had not. Morin then said that if a union got in, employees would have to work 7 days a week to get their 40 hours and there would be no overtime. Morin inquired if Osborne had anything to do with the Union and Harvard replied that he did not know. Morin then stated that it did not matter inasmuch as Osborne was leaving Monday. Osborne was hired on March 10 and received an increase in pay of 25 cents per hour after 30 days. Osborne had not received any formal warnings or suspensions and Morin described him as a good worker who would come in when needed. On Monday, May 21, Osborne reported for work as usual and discovered that his timecard was not in the rack. He then went to Kaufman and inquired about this and was told that he was discharged. Osborne asked for the reason and Kaufman replied "you know the reason" and was then giv- en his paycheck. III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Glass Guard Industries, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By terminating Paul Francis Lane, Robert Osborne, Joseph H. Harvard, and Paul Dupre at the Company's Webster, Massachusetts, plant, on the dates set forth above, the Respondent violated Section 8(a)(3) and (1) of the Act and further violated Section 8(a)(1). 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER4 Respondent, Glass Guard Industries, Inc., Webster, Mas- sachusetts, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, by discharging or otherwise discriminating against any employee because of his union or concerted activity. (b) In any other manner interfering with , restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which I find necessary in order to effectuate the policies of the Act: (a) Make Paul Francis Lane, Robert Osborne , Joseph H. In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes Harvard, and Paul Dupre whole for any loss of earnings suffered by them as a result of the discriminatory action taken against them. (b) Preserve, and upon request, make available to the Board and its agents, for examination and copying, all pay- roll records, social security payment records, timecards, per- sonnel records and reports and all records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Webster, Massachusetts, plant, copies of the attached notice marked "Appendix." Copies of the notice, on forms provided by the Regional Director, after being duly signed by an authorized representative of Re- spondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consec- utive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material (d) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps Re- spondent has taken to comply herewith. 5 In the event that the Board's Order is enforced by a Judgement of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "