Harding Glass Industries, Inc.

HARDING GLASS INDUSTRIES, INC. 331 Harding Glass Industries, Inc. and Its Agents Mr. Vernon Young, Mgr.; Herman Fuller, Cont. Mgr. and Glaziers & Glassworkers Local Union No. 573. Case 17-CA-5947 January 29, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS KENNEDY AND PENELLo after the Union's demand for recognition. To the contrary, Respondent included the installer manag- ers in the list of employees to be included in the card check. Although Respondent made a general refer- ence to the question of the unit's appropriateness in its February 4, 1974, letter, we do not believe that its reference was sufficient to raise a question as to the installer-managers' inclusion in the unit. ORDER On June 27, 1974, Administrative Law Judge Wellington A. Gillis issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record 1 and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. We agree with the Administrative Law Judge's conclusion that Respondent could not have reason- ably doubted the Union's majority status in light of the card check. Here, Respondent sought the card check. While the parties may have had some disagreement initially as to when the card check should take place, it is clear that the card check was conducted on February 1 by Father Soltys, a neighborhood priest, acting as the impartial observer. Representatives of both Respondent and the Union participated. After the impartial observer verified that the Union had authorization cards from a majority of Respondent's employees, Respondent had no basis for reasonably doubting the Union's majority status and accordingly was obligated to recognize the Union. Fred Snow, et al. d/b/a Snow & Sons, 134 NLRB 709 (1961).2 We also agree with the Administrative Law Judge that the inclusion of three supervisory in the unit sought by the Union is not fatal to the Union's demand. The question of supervisory status is one of unit inclusion or exclusion and not one of unit scope. Here, no question was raised as to the appropriate- ness of the three-store unit . Nor did Respondent raise any question as to the inclusion of the installer managers until the hearing herein, some 3 months 1 We find that references to Leonard Long in the record are meant to identify Leonard Lorenzen , secretary-business agent of the Painters' District Council and Ralph Scalzq's superior. 9 See also Nation-Wide Plastics Co., Inc., 197 NLRB 996 (1972); Sullivan Electric Company, I99 NLRB 809 (1972). Respondent's statements indicat- ing a desire to consult its attorney before actually recognizing the Union do not alter the fact that Respondent was bound by the results of the card 216 NLRB No. 52 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Harding Glass Industries, Inc. and its agents Mr. Vernon Young, Mgr.; Herman Fuller, Cont. Mgr., Omaha, Nebras- ka, its other officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order. MEMBER KENNEDY, dissenting: I disagree with the conclusion of my colleagues that Respondent's failure to recognize and bargain with the Union violated Section 8(a)(5) and (1). I do so for two fundamental reasons: (1) Respondent never consented to resolve the question of the Union's majority status through a third-party card check, and (2) the Union's demand for bargaining was made in a statutorily impermissible bargaining unit. Respondent is engaged in the operation of three wholesale and retail automobile glass shops. On January 31, 1973, Union Business Agent Ralph Scalzo delivered a letter to Respondent's operations manager, Vernon Young, demanding that recogni- tion be extended to the Union in a unit consisting of "all auto glass installers and installer managers." 3 Scalzo indicated that four of the seven individuals in the requested unit had executed authorization cards and that he would expect a reply from Respondent on the following day. As found by the Administrative Law Judge, Young indicated that he would be unable to respond by the next day because "he had not talked with his attorney, and . . . [he] would be out of town on the following day." When Scalzo left, Young attempted to verify the business agent's claims by telephoning two installers and asking whether they had signed authorization check which it had sought and obtained . Unlike our dissenting colleague, we cannot perceive a legitimate way in which Respondent 's statements in this regard can be construed so as to suggest that Respondent would not be bound by the results of the card check which it had requested. 3 As discussed further below the Administrative Law Judge found-and my colleagues agree-that the "installer managers" are statutory supervi- sors. The requested unit is therefore inappropriate. 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cards.4 Contrary to fact, each assured Young that they had not signed cards. Given these assurances, Young concluded that a card check by an impartial observer might be desirable. Accordingly, Young called Scalzo who agreed that such an examination could be arranged for the following afternoon. Young initially hesitated over Scalzo's scheduling of the card check and reiterated his concern that he would be out of town and would be unable to contact his lawyer. When Scalzo nevertheless persist- ed in his request and suggested that Young appoint a representative to attend the card check, Young replied, "Well, if you have to have somebody tomorrow, I suppose Herman Fuller could do it although he's got nothing to do with the auto glass shops, but if you just want a body, yes." 5 Young testified that upon reflection he decided to proceed no further until he had had an opportunity first to speak with his attorney. Accordingly, Young testified he called the union offices, explained to Leonard Lorenzen, a union official, his reluctance to proceed without legal advice, and received assur- ances from Lorenzen that the card check could be postponed from Friday to the following Monday. While the Administrative Law Judge characterizes Young's testimony regarding the attempted post- ponement as being "open to question,"6 it is clear that in any event the card check took place as originally scheduled on Friday and in Young's absence.? Early Friday morning Scalzo called Fuller, informed him of the time and place of the card check, and asked whether he would be able to sign the recognition agreement. According to Scalzo, Fuller replied, "No, his orders were to verify the cards and then to contact Mr. Young and Mr. Young would contact me." The card check was conducted and all four signatures verified. When Young returned on Monday morning, he told Scalzo that he was still unable to reply to the Union's demand for recognition because he had not as yet spoken with either Fuller or his attorneys. When Young finally did discuss the situation with counsel, the following written response was sent to the Union: This is in response to your letter of January 31, 1974, and your request for recognition based 4 No exception was taken to the Administrative Law Judge's dismissal of the 8(ax 1) allegation concerning these telephone calls. The Administrative Law Judge found that Young's contemporaneous assurances against reprisal for supporting the Union made the inquiries too insubstantial to warrant finding an independent 8(aXI) violation. S Fuller is a "contract salesman" who estimates and bids on jobs from blueprints. He is not involved in the operation of the auto glass shops. 9 While Young's testimony is uncorroborated , it is also uncontradicted. Lorenzen was present at all times during the trial and could have been called to refute Young's assertions if Young's testimony were not true, but Lorenzen was never called as a witness. upon a review of cards . We have reviewed the entire situation and believe it would be best to request a NLRB election, in order that the matter be determined in accordance with procedures established by the federal government . Accord- ingly, we have directed our attorney to file a RN [sic] petition with the NLRB. There is a serious question whether your union represents a majority of those eligible to vote, particularly in view of our review of the unit which the board would find appropriate. In addition, we have questions concerning the circumstances under which you sought to have the cards reviewed. As you were further advised, our contract manager was not authorized to recognize the union on behalf of Harding Glass as he was unfamiliar with the units involved and had nothing whatsoever to do with them. [Emphasis supplied.] On the following day, Respondent filed an RM petition, and the Union followed suit 3 days later with an RC petition . The RM petition was dismissed and the RC petition was withdrawn upon the filing of the unfair labor practice charges herein. I am unable to agree with my colleagues that Respondent's conduct violated Section 8(a)(5) and (1). In a number of recent cases, a majority of this Board has stated that an employer will not be found in violation of Section 8(a)(5) solely on the basis of his refusal to accept union-proffered evidence of majority status other than the results of a Board election.8 The only exceptions to this principle are instances in which the employer 's conduct has been such as to render a free election impossible or unnecessary-impossible because of the commission of flagrant unfair labor practices,9 or unnecessary because the employer has either discovered majority support through an employee poll10 or has consented to an alternative method for establishing the exist- ence of a majority.'1 Aside from the 8(a)(1) allega- tion noted above which was dismissed by the Administrative Law Judge, there is no allegation here that Respondent has engaged in any unfair labor practices other than the refusal to recognize the Union. Nor can it be argued that the limited poll which Young undertook revealed support for the 7 In view of the conclusions which I reach below , it is unnecessary for me to rely also upon Respondent's additional defense that the results of the card check should not be binding in light of the Union 's failure to abide by its postponement agreement. 9 E.g., Green Briar Nursing Home, Inc., 201 NLRB 503 (1973); Sullivan Electric Company, 199 NLRB 809 (1972), enfd. 479 F.2d 1270 (C.A. 6, 1973); Linden Lumber Division, Summer & Co., 190 NLRB 718 (1971), affd. 419 U.S. 301 (1974). 6 N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). 10 Sullivan Electric Company, supra 11 Snow & Sons, 134 NLRB 709, enfd. 308 F.2d 687 (C.A. 9, 1962). HARDING GLASS INDUSTRIES, INC. 333 Union-in fact, from all appearances, the poll indicated that the Union enjoyed no support at all. I am also of the view that Respondent did not bind itself to the card check as an alternative method for establishing the existence of a majority. From the very outset, Young made it absolutely clear that no response to Scalzo's demand for recognition would be forthcoming unless and until he consulted with counsel. It was for this reason that Young resisted Scalzo's efforts to both minimize Respondent's reply time and expedite the card check. Scalzo acknowl- edged that Young had not agreed to be bound. The following excerpt from his testimony so indicates: Q. Did either Young or Fuller ever say what they would do if a card check showed a majority? A. He said they would just contact me. He said he would contact his attorneys and then contact me the following Monday. Q. Who said that? A. Young, Mr. Young said that. Q. So, he never said he would recognize the Union? A. No. My colleagues make much of the fact that Respondent sought the card check. Of course Respondent sought the card check-both employees contacted by Young contradicted Scalzo's claim that they had executed authorization cards. But this, of course, is no way dispositive of the legal issue presented. For the fact that Young requested the card check-and might well have agreed to be bound by the results thereof had it been scheduled at a later time-in no way alters the essential fact that he did not agree to be bound by the February 1 card check without first consulting with counsel. Young agreed to provide "a body" on February 1 merely as an accommodation to the persistent demands of Scalzo. As we explained in Linden Lumber, supra the essence of our decision in Snow & Sons is "voluntarism"-the employer has agreed to let its "knowledge" of majority status be established through means other than a Board election. In the instant case it is clear that Young specifically refused to be so bound without consulting counsel, and the above-cited testimony of Scalzo indicates that both parties participated in the card check with that understand- ing. Accordingly, Respondent was completely within its rights in insisting upon a Board-conducted election. There is a more fundamental reason why the complaint should be dismissed. We have long recognized that "the Act does not require [a] respondent to bargain with respect to an inappropri- ,Ate unit of employees." 12 The demand for recogni- tion here encompassed a unit of ""all auto glass installers and installer managers." As noted, neither the General Counsel nor my colleagues dispute the Administrative Law Judge's finding that the installer managers are supervisors within the meaning of the Act. It follows, therefore, that the Union's demand was for an inappropriate unit and could under no circumstances give rise to a bargaining obligation. My colleagues seek to excuse this deficiency in the Union's demand by asserting that the supervisory question "is one of unit inclusion or exclusion and not one of unit scope." This observation, it seems to me, is largely irrelevant. For whether the deficiency is one of unit scope, or one of unit inclusion or exclusion, the demand is still fatally deficient. In neither case does the demand give rise to a bargaining obligation. As the Board observed in Sportswear Industries, Inc., 147 NLRB 758, 760-761 (1964): Once having defined the unit it claims to represent, and having made a bargaining demand on that basis, the Union has thereby established the frame of reference for measuring the validity of its demand. "Such a requirement imposes on the union representative only the obligation to say what he means. Failing to do so, [the union] cannot be considered as having made the sort of request to bargain which imposes upon an employer a legal obligation to comply." 13 Nor am I persuaded by the Administrative Law Judge's "estoppel" theory and reliance on J. H. Rutter-Rex Manufacturing Company, Inc., 164 NLRB 5 (1967). Respondent did not first question the appropriateness of the unit at the hearing. In truth, the unit was immediately placed in issue by Re- spondent's written reply to the demand for recogni- tion quoted above. Having concluded that the Union's demand for recognition was fatally defective and Respondent's conduct did not foreclose its right to insist upon a Board-conducted election, I would reverse the 8(a)(5) finding and dismiss the complaint in its entirety. 12 Carson Pine Scott & Company, 75 NLRB 1244, 1246 (1948). 13 Citing The C. L Bailey Grocery Company, 100 NLRB 576,579 (1952); see also Carlton Paper Corporation, Interstate Paper Converting Corp., Better Methods, Inc., 173 NLRB 153, 155 (1968). This is also the reason why the Administrative Law Judge's observation that the Union enjoyed I00- percent support in the smaller unit, which he now finds appropriate, is irrelevant for purposes of determining Respondent's duty to bargain. DECISION STATEMENT OF THE CASE WELLINGTON A. GILLIS, Administrative Law Judge: This case was tried before me on May 7, 1974, at Omaha, Nebraska, and is based on a charge filed on February 13, 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1974, by Glaziers & Glassworkers Local Union No. 573, hereinafter referred to as the Union, upon a complaint issued on March 28, 1974, by the General Counsel for the National Labor Relations Board, hereinafter referred to as the Board, against Harding Glass Industries , Inc., and its agents Mr. Vernon Young, Mgr.; Herman Fuller, Cont. Mgr., hereinafter referred to as the Respondent or the Company, alleging violations of Section 8(a)(1) and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), and upon an answer timely filed by the Respondent denying the commission of any unfair labor practices. All parties were represented by counsel and were afforded full opportunity to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, and to engage in oral argument. Subsequent to the close of hearing, timely briefs were submitted by counsel for the General Counsel and for the Respondent. Upon the entire record in this case,' and from my observation of the witnesses, and their demeanor on the witness stand, and upon substantial reliable evidence "considered along with the consistency and inherent probability of testimony" (Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 496), I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent is a corporation engaged in the operation of wholesale and retail automobile glass shops at three locations in Omaha, Nebraska, and Council Bluffs, Iowa. The Respondent's annual gross volume of sales exceeds $500,000, and it annually purchases goods and services valued in excess of $50,000 directly from sources located outside the States of Nebraska and/or Iowa. The Respondent annually sells goods and services valued in excess of $50,000 directly to customers located outside the States of Nebraska and/or Iowa. The parties admit, and I find, that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties admit, and I find, that Glaziers & Glasswork- ers Local Union No. 573 is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The Facts The Respondent, insofar as this proceeding is concerned, operates three automobile service shops in the Omaha area. One store is at 90th and J in Omaha and employs one installer manager, Bruce Starkey, and two auto glass installers. A second store, known as the downtown store I The Respondent's motion to correct errors in the transcript of this proceeding, filed after the close of the hearing with notice to all parties, is hereby granted. Said corrections are set forth in "Appendix B," attached hereto [Appendix B omitted from publication.] 2 Jerry Lawrence and Jack Crawford signed their cards on January 23, Timothy Leonard signed his on January 25, and Neil McDaniel signed his on the morning of January 31. located at 24th and Burt, employs one installer manager, Jerry Townsend, and one auto glass installer. The third store, located in nearby Council Bluffs, Iowa, employs one installer manager, John Vinson, and one auto glass installer. The primary function of the installers is to install auto glass . The entire three-store operation is headed by Manager Bernard Young, who maintains his office in Omaha. One other person, James Daley, employed by the Respondent primarily as an insurance solicitor, calls on insurance agents or adjustors to solicit their auto glass work. On Thursday, January 31, 1974, Ralph Scalzo, business representative for the Union, having obtained the signa- tures of the Respondent's four auto glass installers on union authorization cards,2 drew up a letter addressed to Young notifying him that the Union represented a majority of the Respondent's auto glass installers and installer managers, and requesting recognition. The letter read as follows: This is to notify you that Local 573 of the Brotherhood of Painters and Allied Trades, AFO-CIO, now repre- sents your employees. All Auto Glass Installers, and Installers Manag- ers, but excluding office, clerical, professionals, guards, and supervisors, as defined in the Labor Management Relations Act, as amended. By virtue of having in its possession signed and valid authorization cards of a majority of the employees in the appropriate bargaining unit authorizing Local Union No. 573 to act as their exclusive bargaining representative. We, there- fore, request that by return letter you recognize Local Union No. 573 as the exclusive bargaining representative of your employees, as above described, so that we may begin to negotiate a contract at the earliest possible time. We will be pleased to prove our majority status by presenting our authorization cards to an impartial neutral third party mutually agreed upon. In view of our desire to render immediate protection and assist- ance to the employees involved, we shall expect your reply by February 1, 1974. Scalzo also prepared for signature a Recognition Agreement, dated January 31, 1974, signifying that the Employer agrees to recognize the Union as the exclusive bargaining representative for Auto Glass Installers and Installer Managers, excluding, inter alia, supervisors .3 Around 2 p.m., Scalzo went to Young's office, where Young greeted him with the statement, "Hey, I hear you have been talking to my people." After some discussion, during which Young questioned the legality of a union organizing one shop at a time, Scalzo told Young that the sealed letter which he had handed to him and which Young 3 Subsequent to the close of the hearing, counsel for the Respondent filed his Motion to substitute the original of G.C. Exhs. 6 and 7 for alleged copies of said documents which had been received in evidence, said documents being the recognition letter and Recognition Agreement alluded to above. The parties having been served and no objection having been raised, Respondent's motion is hereby granted. HARDING GLASS INDUSTRIES, INC. 335 had placed in his back pocket was a demand for recognition and a recognition agreement . When Scalzo said he expected an answer by the first of February, Young registered his complaint that that was kind of fast, to hand him a letter of recognition in the afternoon and then expect recognition by the next day. Scalzo answered that that was the way it operates. Young indicated that he did not see how he could answer by the next day because he had not talked with his attorney, and that he (Young) would be out of town the following day. An hour or so after Scalzo's departure, while at his desk, Young digested the Union's recognition demand, including the option of having an impartial observer look at the cards to see whether the Union in fact had a majority. He then picked up his telephone and called installer Jerry Lawrence at the 90th and J store. Young asked Lawrence whether the Union had approached him about joining, and whether he had signed the card, to which Lawrence, contrary to the fact, said that he had not. Young then spoke with Jack Crawford and asked him if he had been approached by the Union, to which Crawford, also contrary to the fact, implied that he had not. Five or ten minutes later, Young called and talked with both boys again, telling each that he did not mean to intimidate him, but that the Union had indicated that it had a majority of cards. Young then told each boy that if he wanted to join the Union it was okay, that it was up to him, and that his job was not in jeopardy. Both Crawford and Lawrence called Scalzo and informed him of the Young conversation. Around 4 p.m., Young called Scalzo and, referring to the recognition letter , told him that he wanted a card check, that he would like for an impartial observer to look at the cards. Scalzo asked Young if he had anyone he would like to use, and, receiving a negative reply, Scalzo suggested possibly a judge or a priest. Young agreed and Scalzo indicated that it was too late in the day to set one up, but that he would do it the next day, that he knew a priest in the neighborhood. According to Scalzo, Young replied that that was fine, that he would be out of town but would have an appropriate list for him and would leave it with his contract manager, Herman Fuller.4 According to Young, however, Young told Scalzo that it could not be the next day because he was going to be out of town and that he would like very much to be present, that he would not be able to get hold of his lawyer, and that Scalzo merely was to get back to him after getting the impartial observer. Young further testified, however, that Scalzo asked him if he did not have someone else who could represent him the next day, to which Young replied, "Well, if you have to have somebody tomorrow, I suppose Herman Fuller could do it although he's got nothing to do with the auto glass shops, but if you just want a body, yes." After hanging up, Young apprised Fuller of the entire matter, giving Fuller authority to meet with Scalzo and "to present the impartial observer with the list of names of the employees of our service shops." Although no specific names were mentioned, Fuller asked Young if the list 4 Fuller, in fact, is a contract salesman who estimates and bids upon jobs from blueprints, and who, although working under Young , has no direct connection with the auto glass shops. S Unless, as suggested by the Respondent in its brief, Leonard Long is should include managers, and Young replied that he assumed so, that the recognition letter included installer managers. According to the uncorroborated testimony of Young, he then went back to his desk and "digested" the Union's demand letter further, and decided that he better put a stop to this until he talked with his attorney. Because of the lateness of the hour and unable to reach his attorney, around 5 p.m., he called the union hall and talked with a Leonard Long.5 Young, apprising Long of the matter, stated that he did not understand why it could not be put off until Monday. Long assertedly replied that he did not see any reason why it could not be put off until Monday, and Young asked Long if he would tell Scalzo. Young, after hanging up and before leaving his office, assertedly told Fuller about his conversation with Leonard Long, and not to worry about it. Whether this asserted attempt by Young to postpone the card check actually took place is open to question. In any event, there is no evidence that Scalzo, who testified that he was in his office until 5:50 p.m., was ever apprised of it. Nor does the conduct of Fuller the following morning sustain Young's assertion. That evening, around 7 p.m., Scalzo called Father Soltys, and arranged for the card check for the following noon. At 8 a.m., on the following morning, Friday, February 1, Scalzo called Fuller and told him that he had a man to conduct the card check and that he would be free to do it around 12 noon. Fuller said that that would be fine, that he would be there all day. Scalzo asked Fuller if he were able to sign the recognition agreement, and was told by Fuller, that he could not, that his orders were to verify the cards and to contact Young who would then contact Scalzo. At noon Scalzo and Father Soltys met with Fuller. Scalzo asked for the employee list. Fuller refused Scalzo the list, and in turn asked to see the cards. When Scalzo explained that that was Father Soltys' purpose in being there, Fuller said that his instructions were to verify the signatures on the cards against the list of the appropriate group. After a brief exchange, Fuller produced the list6 comprised of the names of the four installers and three installer managers, which Scalzo handed to Father Soltys, along with a sealed envelope containing the cards signed by the four installers. Father Soltys went into Young's office where he made telephone calls to the employees. Father Soltys, unable to reach one card signer, verified three cards. A short time later, as agreed by Fuller and Scalzo, Father Soltys, from his rectory called and verified the fourth card. He then called both Fuller and Scalzo, advising each of the final results of the card check. Father Soltys also confirmed his findings by letter, picked up by Scalzo later that day. On Monday morning, February 4, by telephone, Young advised Scalzo that he had not yet talked with Fuller, nor had he talked with his attorneys. Later in the day, Young reached his attorney, who, in turn, referred him to the company attorney in Kansas City. As a result of their telephone conversation, a letter declining recognition was the same person as Leonard Lorenzon, identified in the record as secretary- business agent of the Painters' District Council, his identity is not revealed. 6 According to the unrefuted testimony of Scalzo, Fuller told him that Young had actually prepared the list. 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dictated by the attorney over the telephone to Young's secretary. The letter, dated February 4, 1974, to the Union from Young, advised as follows: This is in response to your letter of January 31, 1974, and your request for recognition based upon a review of cards. We have reviewed the entire situation and believe it would be best to request a NLRB election, in order that the matter be determined in accordance with procedures established by the federal government. Accordingly, we have directed our attorney to file a RN (sic) petition with the NLRB. There is a serious question whether your union represents a majority of those eligible to vote, particu- larly in view of our review of the unit which the board would find appropriate. In addition, we have questions concerning the circumstances under which the cards were signed and circumstances under which you sought to have the cards reviewed. As you were further advised, our contract manager was not authorized to recognize the union on behalf of Harding Glass as he was unfamiliar with the units involved and had nothing whatsoever to do with them. The following day, February 5, 1974, the Respondent filed an RM petition7 with the Board, setting forth a unit identical to that which the Union had demanded, except that it added the classification "solicitor-installer." An RC petition filed by the Union on February 8, 1974, was withdrawn and the instant refusal-to-bargain charges were filed on February 13, 1974.8 Analysis and Conclusions 1. Alleged 8(a)(1) conduct The complaint alleges that Young's telephone inquiry of Lawrence and Crawford on January 31 as to whether they had signed union cards was unlawful. In view of Young's immediate return call wherein he apprised both boys that he did not mean to intimidate them, indicated that his initial call was prompted by the Union's assertion of a card majority, and assured both employees that they were free to join the Union if they wished and that their jobs were not in jeopardy, I find that this inquiry, accompanied by such assurances, standing alone, is too insubstantial to warrant the finding of an independent 8(a)(1) violation.9 2. The appropriate unit As alluded to earlier, at times material hereto, the Respondent employed four installers, three installer man- agers, and one person identified as an insurance solicitor. The record reflects that the four installers are primarily involved in installing auto glass, that they are paid weekly and receive overtime pay after 40 hours, and that at each location they work directly under the installer manager. With respect to the installer managers,'° the uncontro- 7 Case 17-RM-508. 8 The petition in Case 17-RM-508 was dismissed by the Regional Director on March 28 , and the Respondent's appeal of that dismissal was denied by the Board on April 25, 1974. verted evidence reveals that each is in complete charge of his branch store and is responsible for the entire day-to- day operation of the store, including work performance and the profits for his location, that he is paid a salary approximating $900 per month and does not receive overtime, and that, as to benefits, his insurance is entirely paid by the Company, including health, hospitalization,' and life insurance. The installer manager operates on a profit-sharing basis, amounting to 12 percent of salary in 1973, has 2 weeks' vacation, is furnished a company car with gas and oil paid by the Respondent, may take a day off as he pleases without approval from Young, possesses the right to hire and fire on his own and exercises that right, arranges the work schedules for his installer or installers, and responsibly directs them in their daily work. Under these circumstances, and notwithstanding the fact that he spends approximately 20 to 25 percent of his time installing glass, I find that installer managers are supervi- sors within the meaning of the Act and, as such, are excluded from the appropriate unit. The insurance solicitor, James Daley, although primarily engaged in calling upon insurance agents or adjusters, soliciting their auto glass work for the Respondent's three shops, also fills in where needed from time to time in the shops: While he, too, may spend from 20 to 30 percent of his time installing glass, in all other respects his status parallels that of the installer managers. Thus, I find that the insurance solicitor is a supervisor within the meaning of the Act and, as such, is excluded from the unit. Consequently, I find that an appropriate unit consists of the four installers employed by the Respondent, excluding installer managers and the insurance solicitor. 3. Respondent's refusal to recognize The General Counsel asserts on the facts herein that the Respondent has refused to bargain in good faith in violation of Section 8(aX5) of the Act. The Respondent defends its refusal to recognize the Union on the ground that the unit sought was not an appropriate unit because it included installer managers. Thus, the basic question raised is whether, under the circumstances herein, the fact that three of the seven included in the Union's demand for recognition were de facto 2(11) supervisors is fatal to that demand. I find that it is not. Upon receiving the Union's written demand on January 31, Young was well aware that the unit sought included installers and installer managers and that the Respondent employed four installers and three installer managers. Young, as Respondent's top official in the Omaha area, also was well aware of the functions and duties of both categories. Without any discussion or raising any questions concerning the composition of the unit, Young thereafter called two of his four installers, and ascertained from them, contrary to the facts, that they had not authorized the Union. At this point, it would appear that Young had a good- faith doubt that the Union did represent a majority of the B See Skyline Mobile Homes, 200 NLRB 109 (1972). to These people are also referred to as service managers or shop managers. HARDING GLASS INDUSTRIES, INC. 337 employees in the unit sought and therefore was willing to go to a card check and, in fact, initiated the idea. Although thereafter, perhaps, having second thoughts, the fact remains that Young authorized the card check and gave Fuller, whom I find to have been his agent for such purposes, authority to meet with Scalzo and the impartial observer. As a result, the following day, February 1, Father Soltys conducted the card check , verified the fact that four employees had signed union authorization cards, and so notified the Respondent. Thus, at this point, although no names were mentioned, the Respondent was put on notice that four of the seven in the unit sought , had signed union cards. At this time, with knowledge that the Union did in fact represent a majority of the seven installers and installer managers, the Respondent no longer possessed a good- faith doubt as to the Union's majority status. I so find. On February 4, the next working day, the Respondent refused to abide by the results of the card check, so notified the Union, and immediately filed an RM petition with the Board seeking an election in the same unit that the Union had sought, but adding one additional classification, that of "solicitor-installer." The Respondent, at the hearing some 3 months after the Union's demand for recognition, for the first time challenged the appropriateness of the unit sought based on the inclusion of installer managers . In a fact situation not unlike that before us, the Board in Rutter-Rex,tl adopted the reasoning of the Trial Examiner , holding in effect that the Company was estopped to belatedly assert in its brief the appropriateness of the unit. The Trial Examiner held: In any event, I find that Respondent did not question the nature of the demand in general or the unit in particular when it denied recognition on July 25 (Resp. Exh. 1), and this issue was first raised in its brief. Cf. N.L.R.B. v. Austin Powder Company, 350 F.2d 973, 977 (C.A. 6, 1965). Hence, I find that Respondent may not now belatedly raise these particular issues, for the reason that if it had timely conveyed its doubt as to the character of the demand or the appropriateness of the unit, the Union would have had an opportunity seasonably to amend its demand and its claimed unit to conform them to Respondent's objections. Arts & Crafts Distributors Inc., 132 NLRB 166, 169 (1961). An application of this principle to the instant situation requires the same conclusion, particularly in view of the fact that on February 4, when the Respondent again refused to recognize the Union after a card check revealed a majority showing in the unit sought, the Union in fact represented 100 percent of the employees in the lessor unit herein found appropriate. I rind that the Respondent, on and after February 1, 1974, did not entertain a good-faith doubt of the Union's majority, that, under the circumstances, the fact that the unit sought included installer managers is not fatal to the Union's demand, and therefore, that the General Counsel has established by a preponderance of the credible " J. H. Rutter-Rex Mfg. Co., 164 NLRB 5 (1967). 1Y See Snow & Sons 134 NLRB 709 (1961); Sakrete of Northern evidence that the Respondent's refusal to recognize Glaziers & Glassworkers Local Union No. 573 was not made in good faith. It follows, and I find, that the Union's majority status entitles it to be recognized as the exclusive bargaining agent of all employees in the appropriate unit herein found appropriate. Accordingly, I find, as alleged, that the Respondent has refused to bargain within the proscription of Section 8(a)(5) of the Act.12 Upon the basis of the above findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Harding Glass Industries, Inc., and its agents, Mr. Vernon Young, Mgr.; Herman Fuller, Cont. Mgr., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Glaziers & Glassworkers Local Union No. 573 is a labor organization within the meaning of Section 2(5) of the Act. 3. All auto glass installers, but excluding installer managers, office clerical employees, professional employ- ees, guards and supervisors as defined in the Act, at the Respondent's facilities located at 90th and J, and 24th and Burt, Omaha, Nebraska, and 614 West Broadway, Council Bluffs, Iowa, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since January 31, 1974, the Union has been, and is now, the exclusive bargaining representative of all employ- ees in the appropriate unit within the meaning of Section 9(a) of the Act. 5. By refusing to recognize and to bargain collectively in good faith with the Union as the exclusive representative for purposes of collective bargaining of the employees, the Respondent unlawfully refused to bargain collectively with the Union in violation of Section 8(a)(1) and (5) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 7. Other than as found, the Respondent has committed no violations of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and that it take certain California, Inc., 137 NLRB 1220 (1962), supplemental decision, 140 NLRB 765 (1963), enfd. 332 F.2d 902 (1964), cert. denied 379 U.S. 961 (1965). 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affirmative action which is necessary to effectuate the policies of the Act. It having been found that the Respondent unlawfully refused to bargain, it is recommended that the Respondent, upon request, bargain collectively with the Union and, if an understanding is reached , that such understanding be embodied in a signed agreement. Upon the foregoing findings of fact, conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 13 The Respondent, Harding Glass, Industries, Inc., and its agents Mr. Vernon Young, Mgr.; Herman Fuller, Cont. Mgr., its other officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Glaziers & Glassworkers Local Union No. 573 as the exclusive bargaining representative of all employees in the appropri- ate unit in violation of Section 8(a)(1) and (5) of the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above- named Union as the exclusive representative of the employees in the above-described unit. (b) Post in conspicuous places at its two Omaha, Nebraska, stores, and its Council Bluffs , Iowa, store, including all places where notices to employees are customarily posted, copies of the attached notice marked "Appendix A." 14 Copies of the notice on forms provided by the Regional Director for Region 17, shall, after being duly signed by an authorized representative of the Respondent, be posted by it, as aforesaid, immediately upon receipt thereof and maintained for at least 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 17, it writing, within 20 days from the date of this Order, wha' steps Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaint herein be dismissed insofar as it alleges independent violations of Section 8(a)(l) of the Act or any other violation of the Act not specifically found. 13 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 14 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with Glaziers and Glassworkers Local Union No. 573 as the exclusive bargaining representative of our employees. WE WILL, upon request, bargain collectively with the above-named Union for the following appropriate unit with respect to rates of pay, wages, hours of work, and other conditions of employment: All auto glass installers, but excluding installer managers, office clerical employees, professional employees, guards and supervisors, as defined in the Act, at the Respondent's stores located at 90th and J, and 24th and Burt, Omaha, Nebraska, and 614 West Broadway, Council Bluffs, Iowa. HARDING GLASS INDUSTRIES, INC.