Lab Glass Corp.

348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Lab Glass Corporation and Local 701, American Flint Glass Workers Union, AFL-CIO. Cases 4-CA-16891, 4-CA-16891-2, 4-CA-17198, and 4-RC-16687 August 30, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS HIGGINS AND DEVANEY On February 7, 1989, Administrative Law Judge Donald R. Holley issued the attached decision. The General Counsel filed exceptions and a supporting brief. The Respondent filed cross-exceptions and an answering brief to the General Counsel 's excep- tions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. ORDER The recommended order of the administrative law judge is adopted and the complaint is dis- missed. IT IS FURTHER ORDERED that Case 4-RC-16687 is remanded to the Regional Director for Region 4 for issuance of certification of results of the April 14, 1988 election. Joel H. Levinson, Esq. and Dona A. Nutini, Esq., for the General Counsel. Charles W. Pautsch, Esq. (Richard H. Wessels and Associ- ates), of Milwaukee, Wisconsin, for the Respondent. Mr. Ronald L. Flaim, of Newfield, New Jersey, for the Respondent. I The General Counsel has excepted to some of the judge's credibility findings The Board 's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for re- versing the findings Although we do not reverse any credibility findings of the administra- tive law judge, we disavow any reliance on Randy Cavoli s filing a non- meritorious charge with the Board with respect to the judge's credibility resolutions concerning the Respondent 's October 30, 1987, remarks We rely solely on the judge's crediting of Anthony Tirelli's version of the incident. The judge indicated that Tirelli was a credible witness. DECISION STATEMENT OF THE CASE DONALD R. HOLLEY, Administrative Law Judge. On October 20, 1987,1 and October 21, Local 701, American Flint Glass Workers Union, AFL-CIO (Local 701 or the Union), filed original charges in Cases 4-CA-16891 and 4-CA-16891-2, respectively. Thereafter, on November 3, American Flint Glass Workers Union, AFL-CIO (the International Union) filed a petition for an election in Case 4-RC-16687. On February 8, 1988, the Regional Director for Region 4 of the National Labor Relations Board issued a complaint which alleged, in substance, that Lab Glass Corporation (Respondent) had violated Section 8(a)(1) and (3) of the National Labor Relations Act by creating the impression that the union activities of its employees were under surveillance and by laying off and refusing to recall employees Sam Guidoni, Bar- bara Blair, and Jose Quintana . Simultaneously, Cases 4- CA-16891 and 4-CA-16891-2 were consolidated for trial. Thereafter, on February 29, 1988, the International Union filed the charge in Case 4-CA-17198. On April 15, 1988, the Region issued an order consolidating Case 4-CA-17198 with Cases 4-CA-16891 and 4-CA-16891-2 for trial, and it simultaneously issued a second consoli- dated complaint, which realleged the matter in the earli- er complaint and alleged further independent violations of Section 8(a)(1) of the Act. Respondent filed timely an- swers denying it had engaged in the unfair labor prac- tices alleged in both complaints. An election was held in Case 4-RC-16687 on April 14, 1988, and thereafter the International Union filed ob- jections to the conduct of the election. By order dated May 6, 1988, the Regional Director consolidated Case 4- RC-16687 with the above-described unfair labor prac- tices placing the sole objection pursued by the Interna- tional Union before me for resolution. The objection, which traces the wording of one of the allegations con- tained in the consolidated complaint , is as follows: In or about early December, 1987, the Employer, acting through Ed Brown, at the Plant, created the impression among its employees that their Union ac- tivities were under surveillance by the Employer by telling an employee that he knew that employees at the Company who had signed authorization cards were against the Union. The case was heard in Philadelphia, Pennsylvania, during the period May 23-25, 1988. All parties were rep- resented and permitted full opportunity to participate in the hearing.2 Upon the entire record, including the posthearing briefs filed by the parties, and from my ob- servation of the demeanor of the witnesses who appeared to give testimony, I make the following ' All dates are 1987 unless otherwise indicated 2 After the close of the hearing , General Counsel filed a motion to cor- rect transcript The motion is denied 296 NLRB No. 45 LAB GLASS CORP. 349 FINDINGS OF FACT 1. JURISDICTION Lab Glass Corporation, a Delaware corporation, is en- gaged in the manufacture of scientific glass products at its plant located in Vineland, New Jersey. During calen- dar year 1987, its gross revenues exceeded $500,000, and, during the same period, it sold and shipped products valued in excess of $50,000 directly to points located out- side the State of New Jersey. It is admitted , and I find, that Respondent is an employer engaged in commerce within the meaning of Sections 2(2), (6), and (7) of the Act. II. STATUS OF THE UNIONS It is uncontested, and I find, that Local 701 and the International Union (collectively called the Union) are labor organizations within the meaning of Section 2(5) of the Act. Some 60 production and maintenance employees are employed at the plant . They work in one of six depart- ments: tooling, lathe, lamp, grinding and miscellaneous, graduation, and warehouse . The record reveals the man- ufacturing process normally commences in the tool de- partment or the lamp department. Skilled glass blowers work in both of the described departments and they give products their original shape by utilizing tools and fires to create desired objects by hand. After the tool or lamp department completes its work on an item, the item may progress to the grinding department, the lathe depart- ment, the graduation department, and finally to the ship- ping department where it is either shipped or stored.4 Respondent's production and maintenance employees receive their immediate supervision from some 11 indi- viduals who are classified by it as either supervisors or assistant supervisors. All but one, an elderly gentleman named Sam Fratto, are working supervisors. The super- visory status of three of the working supervisors is in dispute in this proceeding. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Lab Glass Corporation manufactures, distributes, and sells scientific laboratory glass products . It operates plants in Vineland , New Jersey, and Kingsport, Tennes- see. The corporation is owned by Biscayne Holdings, Inc., which is headquartered in Miami, Florida. The Vineland plant is the only facility which is directly in- volved in the instant proceedings. Respondent manufactures in excess of 12,000 scientific laboratory products. Many items are produced for stock- ing before orders are actually received. A substantial part of the business, however, consists of manufacturing items after specific orders have been received . Frequent- ly, special orders are produced on a rush basis. Respondent's principal executive officers are Edward Brown, president, and Ronald Flaim , controller. Both ac- tively participate in the operation and control of the plant. Brown was described in the record as a "hands on" executive. His activities include the inspection of all orders received, assignment of specific work orders to the appropriate department if the item (s) is not in stock, and followup activities to assure that orders are shipped in timely fashion. Additionally, he regularly engages in sales related activities by visiting customers, usually once a week, on a regular basis. Flaim handles the fiscal as- pects of the operation and supervises the office person- nel. Additionally, he performs personnel functions which include the hiring and firing of employees, the approval of periodic wage increases, and the imposition of disci- pline when he is convinced it is necessary. When per- forming nonfiscal functions, he relies heavily on informa- tion and recommendations received from line supervi- sors. 3 8 Respondent denied in its answers to complaint that Brown is a statu- tory supervisor and an agent of Respondent within the meaning of Sec 2(11) and (13) of the Act The record clearly reveals that both Brown and Flaim have the authority to hire , fire, and responsibly direct employ- ees. Additionally, it reveals they, acting together, make top level manage- B. The Organizational Campaign On October 7, alleged discriminatee Samuel Guidoni contacted Rick Hayes, the president of Local 701, con- cerning possible representation of Respondent's employ- ees. The next day, October 8, Guidoni discussed the pos- sibility of representation with Respondent's assistant su- pervisor in the tool department, Tony Tirelli. Tirelli, who had been active during a previous organization campaign at the plant, advised Guidoni he should not get involved because the employees would not support him and he might lose his job. At the time, Guidoni was an apprentice grinder who needed only one more pay raise to be considered to be a journeyman grinder.5 Guidoni ignored Tirelli's advice and discussed the possibility of organizing with assistant supervisor Luis Gonzalez, a journeyman grinder, and Randy Cavoli, a journeyman in the tool department. Thereafter, on October 11, he, Gon- zales, and Cavoli met with Hayes and International Union Representative Dick Morgan . The union repre- sentatives explained the organizing process to the em- ployees and they signed authorization cards. Thereafter, Guidoni spoke with 16 or 17 employees at the plant on October 12 and 13, urging them to attend a union meet- ing on October 14. A number of Respondent's employees attended a meeting held at Local 70l's union hall on Oc- tober 14, and Guidoni agreed to act as the chairman of an in-plant organizing committee . Employees Barbara Blair, Luis Gonzalez, and Teddy Castro were also ment decisions I find that both are statutory supervisors and agents of Respondent within the meaning of the Act. While a large number of products require grinding, many go to the lathe department where they are substantially altered , and most pass through the graduation department where volume markings , creation of decals, and other functions are accomplished , the progression of a prod- uct through the plant is dependent upon the nature of the desired final product. 5 Respondent utilizes an apprentice system in its tool, grinding, lathe, and lamp departments. Generally described, an employee spends from 2- 5 years in the program and receives raises at intervals if he or she is pro- gressing satisfactorily After receiving the final raise as an apprentice, they are considered to be journeymen. 350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD chosen to be members of the committee. Blair testified she gave an authorization card to Debbie Cassidy while they were on break on October 15, and she conversed with Cassidy regarding the card in the plant the follow- ing day. Alleged discriminatee Jose Quintana attended the October 14 meeting and signed a union card during the meeting. The record fails to reveal that he engaged in additional union activity. Guidoni testified he held a meeting of the employee in- plant committee at his home during the evening of Octo- ber 18. After the meeting at his home ended on October 18, Guidoni telephoned Tirelli to inform him he was re- ceiving strong support from the employees. Guidoni asked if he could count on Tirelli's support, and Tirelli indicated that, while he would support him, he could not become actively involved because of the position he held at Respondent. Guidoni was laid off on October 19, and Blair and Quintana were laid off on October 20. C. Positions of the Parties and the Issues The consolidated complaint alleges that Guidoni, Blair, and Quintana were laid off in violation of Section 8(a)(3) of the Act. It further alleges Respondent created the impression that the union activities of its employees were under surveillance on October 30 and in early De- cember, and it alleges an employee was threatened with job loss on October 30 if the employees selected the Union as their representative. Although 10 of the 11 Respondent supervisors or as- sistant supervisors who are working supervisors and pro- vide immediate supervision of employees were found not to be statutory supervisors in the representation case, General Counsel relitigated the supervisory status of 3 of the working supervisors (Tirelli, Beres, and B. Streeter) with the aim of showing company knowledge of the al- leged discriminatees' union activities through them via the respondeat superior doctrine. Additionally, General Counsel relies upon the small-plant doctrine to establish company knowledge of the alleged discriminatee's union activities. Finally, General Counsel contends that assum- ing, arguendo, the three named working supervisors are not statutory supervisors, they should be found to be agents of Respondent. General Counsel contends I should credit the testimony of his (her) witnesses and find the independent 8(a)(1) violations alleged. Respondent contends that relitigation of the status of the three working supervisors in the instant proceeding is barred by Section 102.67(f) of the Board' s Rules and Regulations. In the alternative, it contends the record in the representation case as well as the record in the in- stant proceeding compels a conclusion that Tirelli, Beres, and B. Streeter are not statutory supervisors or agents of Respondent within the meaning of Section 2(11) and (13) of the Act. Accordingly, Respondent contends the 8(a)(3) allegations should be dismissed for lack of proof of knowledge of the alleged discriminatees' union activi- ties. Additionally, Respondent contends the record com- pels a conclusion that the alleged discriminatees were laid off because there was no work for them, and it claims it has shown they would have been laid off in the absence of their participation in union activities. Re- spondent contends I should credit Brown and other Re- spondent witnesses, rather than the employees, and con- clude that Respondent did not, on October 30 or in early December, create the impression that the union activities of its employees were under surveillance. Similarly, it contends I should credit its witnesses' testimony and find that no threat of job loss because of employee selection of the union representation was uttered on October 30. The consolidated complaint and the positions of the parties present the following issues: 1. Does Section 102.67(f) preclude relitigation of the supervisory status of working foremen who were deemed to be nonsupervisory employees in the represen- tation case? 2. If the answer to issue 1 is no, does the evidence in the representation case coupled with the evidence in the instant proceeding warrant a conclusion that Tirelli, Beres, and B. Streeter are supervisors and/or agents of Respondent within the meaning of Section 2(11) and (13) of the Act? 3. Did Respondent violate Section 8(a)(3) of the Act by laying off and refusing to recall the alleged discrimin- atees? 4. Did Respondent engage in independent violation of Section 8(a)(1) by creating the impression that the union activities of its employees were under surveillance on October 30 and in early December, and did it engage in such violation of the Act by threatening on October 30 that an employee would lose his job if the employees se- lected the Union as their representative? D. The Propriety of Relitigating Supervisory Issues In the Decision and Direction of Election issued in Case 4-RC-16687 on March 17, 1988, the Regional Di- rector found that Anthony Tirelli, John Beres, and Bowman (Beaner) Streeter were nonsupervisory employ- ees. Respondent recognizes in its brief (pp. 18 and 19) that the Board held in Serv-U-Stores, 234 NLRB 1143 (1978), that a finding in a representation case that a person is not a supervisor, while not subject to relitiga- tion in a "related" subsequent unfair labor practice pro- ceeding (i.e., an 8(a)(5) case based on certification in a representation proceeding), does not have binding force where independent violations of Section 8(a)(1) of the Act are involved. Here, it argues that the Board's earlier decision in Thrifty Supply Co., 153 NLRB 370 (1965), affd. 364 F.2d 508 (9th Cir. 1966), represents the better rule for determining the reach of Section 102.67(f) of the Board's Rules and Regulations, and urges me to so find. The short answer is that I am bound by current Board law.6 Accordingly, noting the instant complaint alleges independent 8(a)(1) violations, I find the status of Tirelli, Beres, and Streeter was relitigable in the instant proceed ing. E. The Status of Tirelli, Beres, and Streeter The record in the instant case reveals that Anthony Tirelli, John Beres, and Bowman (Beaner) Streeter are 6 The principles enunciated in Serv-U-Stores were recently reaffirmed in Williamson Memorial Hospital, 284 NLRB 37 (1987) LAB GLASS CORP. hourly paid, enjoy the same fringe benefits enjoyed by other employees, punch the same timeclock , and wear the same type of work clothing worn by other employ- ees. These matters, however, are not determinative in ap- praising supervisory status as Section 2(11) of the Act defines a supervisor as: any individual having authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or disci- pline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature , but requires the use of independent judgment. Possession of any one of these powers is sufficient to confer supervisory status. NLRB v. Edward G. Budd Mfg. Co., 169 F.2d 571, 576 (6th Cir. 1948), cert. denied 335 U.S. 908 (1949); Ohio Power Co. v. NLRB, 176 F.2d 385, 387 (6th Cir. 1949), cert. denied 338 U.S. 899 (1949). Set forth below is a summary of the duties and extent of authority exercised by the individuals whose status is in dispute. Anthony Tirelli Anthony Tirelli is a journeyman tooler. He has worked for Respondent for 22 years. The record reveals that at some unspecified time in recent years , Tirelli was placed in charge of apprentices who were hired to work in the toolroom . Flaim testified that after he has inter- viewed applicants who may possess the ability to work in the toolroom , he sends them to Tirelli for evaluation. Apparently hand and foot coordination are required to perform tool work, and it is undisputed that when an ap- plicant reports to Tirelli, he works with the applicant for an hour or two several nights after the end of the regular working day to determine whether the employee possess- es the coordination required in a toolworker. Tirelli's ap- praisal is imparted to Flaim, and if it is negative, the ap- plicant is normally rejected. If the appraisal is positive, the applicant is hired if his references and other matters noted on the application turn out to be satisfactory.' At the time of the instant hearing, Tirelli provided the immediate supervision received by four four apprentices employed in the tool department. He testified that Brown supplies him with the factory orders which he and/or the apprentices are to work on. Thereafter, Tir- elli assigns specific tasks to the individual apprentices in accordance with his appraisal of their ability to perform any given task, or he performs the work himself with an apprentice or apprentices observing so they can learn to perform the task in question. r It is undisputed that when alleged discnmmatee Quintana was origi- nally interviewed by Flaim , he was sent to Tirelli for appraisal After de- termining he did not have the coordination required for toolwork, Tirelli told Flaim that Quintana did not qualify , but he tried hard and was quiet and they should hire him in another job Tirelli so advised the employee, and Flaim admittedly followed Tirelli's recommendation and hired Quin- tana as a floorboy. 351 Although Respondent has conducted timestudies on various jobs in the tool department, as well as in other departments, and utilizes an incentive system whereby journeymen toolworkers receive piece work or incentive pay by exceeding 80 percent of the rate computed for specific jobs, Tirelli does not receive what is referred to in the record as bonus pay. Instead, he is paid 20 percent more than the normal hourly rate for journeyman tool- workers. Apprentices employed in the toolroom are initially paid a given percentage of the journeyman toolworker rate. While the record fails to reveal the precise percent- age applicable in the tool department , it reveals the normal initial percentage in the lathe department for ap- prentices is 40 percent . As the individual learns, his or her percentage is increased . Flaim acknowledged during his testimony that he relies on Tirelli's appraisal of the work of apprentices in the tool department when deter- mining whether a given apprentice is entitled to receive periodic increases. Tirelli indicated during his testimony that he initials the apprentices' timecards when they ne- glect to punch in or out . With respect to paperwork, General Counsel placed in evidence as General Counsel's Exhibits 17 and 18 documents authorizing a deduction of moneys for safety glasses from the pay of an employee, and one indicating a pay increase for an employee. Both were signed or initialed by Tirelli (or on his behalf) and designate him "foreman" and "Dept. Head," respective- ly.8 In sum, the record reveals Tirelli participates in the hiring of apprentices for the tool department by observ- ing the coordination of applicants, and, if applicants are hired as apprentices , he determines the work they will perform and evaluates their performance throughout their 3- to 5-year apprenticeship . It is clear, and I find, that his recommendations with respect to the progress of apprentices and their entitlement to periodic pay in- creases are uniformly accepted by Flaim . I find, as con- tended by General Counsel , that Anthony Tirelli is a su- pervisor within the meaning of Section 2(11) of the Act. John Beres John Beres is a journeyman lathe worker who has been employed by Respondent for 28 years. The record reveals that Brown determines which factory work orders will be commenced by the lathe department and Beres assigns specific tasks to individual employees ac- cording to his evaluation of their ability to perform the work. Approximately 10 employees are assigned to the department. Like Tirelli, Beres participates in the hiring process. Flaim indicated during his testimony that once he has screened applicants and has tentatively decided an appli- cant may be utilized in the lathe department , he sends the applicant to Beres for interview . Beres then questions the applicants to ascertain their qualifications and reports his views to Flaim. If both agree the applicant should be hired, he or she is hired. 8 Flaim testified he placed Tirelli's initials on G.C. Exh 18. 352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Alleged discriminatee Barbara Blair credibly testified that when she was hired by Respondent, Flaim informed her that Beres would be her foreman . She further indi- cates that after being assigned to the lathe department, Beres assigned her to work, approved or disapproved her requests for time off, corrected and signed her time- cards, and assigned her to different work within the de- partment as well as assigning her to temporary work in the lamp department. Beres testified he spends approxi- mately 75 percent of his time at his machine performing complex work. Like Tirelli, he is hourly paid, punches the timeclock, receives no bonus pay, enjoys the same benefits enjoyed by other employees, and wears normal work clothes on the job. He candidly admitted, if he has a problem with an employee, he goes to personnel (Flaim), discusses it, and, if they agree, he goes back and terminates the employee. Beres also indicated he makes recommendations to Flaim in matters involving pay raises. In that connection, he testified he considers the job abilities of individuals , the quality of their work, the number of new jobs they have learned , and their work- manship. Flaim candidly admitted he relies on Beres' ap- praisals of employees as he is not capable of appraising their work himself. With specific regard to alleged discriminatee Blair, Brown testified that on October 20 there were three rela- tively new employees in the lathe department and he in- formed Beres to select one for layoff. It is undisputed that Beres thereafter exercised his independent judgment and selected Blair for layoff, and thereafter informed her she was laid off. It is undisputed that certain Respondent records label Beres as a supervisor . Thus, he is placed in a separate category on Respondent's weekly payroll worksheets,9 and his personnel folder designates him to be a supervi- sor. In sum, it is clear that Beres makes recommendations with respect to the hire and reward of employees which are customarily followed by Flaim , and it reveals he in- dependently decided on October 20, 1987, which of the newly hired employees in his department would be se- lected for layoff. I find he is a supervisor within the meaning of Section 2(11) of the Act. Bowman (Beaner) Streeter Bowman (Beaner) Streeter is a journeyman grinder who has been employed by Respondent for 46 years. He is one of three assistant supervisors in the grinding and miscellaneous department . Sam Fratto, a salaried em- ployee and an admitted statutory supervisor, is the fore- man in charge of the department which utilizes some 17- 20 employees . Five of the employees including assistant supervisors Alvarez, Gonzalez, and Streeter are bench grinders. The remaining employees wash glassware, op- erate Lehr ovens, operate drill and diamond presses, per- form floorboy work, engage in truckdriving, perform janitor work, or inspection functions. The record reveals that glassware which needs to be ground comes to the grinding and miscellaneous depart- ment in boxes. Streeter then hands out the work to the 9 See G C Exh. 14. bench grinders by giving it to a grinder who needs work or, in some instances, to a journeyman he perceives to be capable of accomplishing the required grinding oper- ation. Streeter spends approximately 40 percent of his time performing bench grinding . He testified the remain- der of his time is spent handing out work and expediting the processing of work through the department by sta- pling and labeling boxes to indicate their contents, taking finished work to the inspection area, and obtaining tools for journeyman grinders from a storage area to which only he has the key. The record reveals foreman Fratto is 74 years of age and he frequently takes lunch hours which may last as much as 2 hours. In Fratto's absence, Streeter is in charge of the department. During such periods, he testi- fied he keeps departmental employees suppplied with work. Alleged discriminatee Guidoni indicated during his tes- timony that Streeter threatened on one occasion to go to the old man (Brown) if two employees continued to horse around on the job, and on another occasion, he threatened to put him (Guidoni) in the corner if he did not shut up. Additionally, he indicated that on another occasion when his fellow employees were throwing things and bothering him, he was moved to a location near Gonzalez after he complained to Streeter and Streeter discussed the matter with Fratto . In similar vein, Gonzalez testified that Streeter signs timecards to verify the time journeymen spend on bonus work and Steeter is the person that he approaches when wants to take time off. While admitting he signs timecards in bonus situa- tions, Streeter denied that he plays any role in the hire, fire, discipline, training, or reward of employees. While the record reveals Brown conversed with Streeter on October 19, 1987, indicating his intention to relieve Fratto of some of his supervisory duties, Streeter testified he had not been assigned to perform any of Fratto's supervisory functions as of the time the hearing was held in the instant case. On essentially the same facts set forth above, the Re- gional Director found in the representation case that Streeter was an employee rather than a statutory super- visor. Unlike the situations involving Tirelli and Beres, the record fails to reveal that Streeter plays a role in the hire, fire, or reward of employees . Instead, his role ap- pears to be limited to the assignment of work to less ex- perienced employees who have been employed by Re- spondent for shorter periods than himself. Such direction of others appears to have been routine and derived from skill and experienced gained as a longterm employee at the facility. The fact that Streeter is "in charge" of the department when the foreman is absent does not, standing alone, es- tablish that he responsibly directs other employees or that he exercises independent judgment. In the absence of evidence which would show that Streeter had the au- thority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, to adjust their grievances or to effectively recommend such action, I find the record fails to establish that he is a LAB GLASS CORP. 353 supervisor within the meaning of Section 2(11) of the Act. F. The Alleged 8(a)(1) Conduct Paragraph 7(a) of the consolidated complaint alleges that on October 30, Respondent, through Brown's con- duct, violated Section 8(a)(1) of the Act by creating the impression the union activities of employees were under surveillance, and by threatening an employee with job loss if employees selected the Union as their bargaining representative. General Counsel sought to prove the alle- gations through the testimony of employee Randy Cavoli. Randy Cavoli is a journeyman tooler who works in the tool department. He has been employed at Respond- ent for approximately 10-1/2 years. He testified that after employee Charles Nash signed a union card he failed to attend union meetings and on October 30 he asked Nash why he had not attended and whether he planned on coming to any meetings. According to Cavoli, Nash got upset when the inquiries were raised, and the two of them had words back and forth for a few minutes. Cavoli indicated that Tirelli came to his bench around 4:15 and told him Brown wanted to see him in his office. When Cavoli reached Brown's office, Nash, Brown, Tirelli and Flaim were there. Cavoli testified Brown told him he was not supposed to be talking to people about the Union on company time; that he had been in the Union himself for 10 years and he knew what the Union was all about; and that they were going to make prom- ises they could not keep. Cavoli claims Brown then stated he knew he (Cavoli) was giving out union cards and he knew about our meetings and what went on at the meetings. The employee stated Brown then told him, if the Union got in, his friend John Strang probably would not be able to make it and he (Cavoli) would not either. Cavoli recalled that Brown then asked him if he realized that we people that were supporting the Union could end up losing our jobs, and he asked if he had read the laws concerning unions. Cavoli contends that after he said he had not read them (the laws), Brown told him he thought he was making a mistake because the Union was not going to be able to do anything for them. Brown testified he recalled that in late October Tirelli informed him they had a problem in the tool room be- tween Nash and Cavoli and it might develop into a little violence or something. He indicated he told Tirelli to bring them in. He recalled that when the employees came in he asked what the problem was, or asked Cavoli if he was bothering or harassing Nash or something like that-he did not recall exactly. Brown testified that when Cavoli said yes, he was, that he stated: "Look, I don't want that to go on during work hours. If you want to talk to him, talk to him off the plant or during noon hour or any other time you're not working," or he would probably have to take whatever appropriate action could be taken. Brown testified he may have said he had belonged to unions and he knew about unions; something like that comment; that he could not recall ex- actly.10 When Flaim was called as a witness by Respondent, he testified, on cross-examination, that Brown did not tell Cavoli during the above-described conversation that he knew Cavoli was signing or handing out cards. Accord- ing to Flaim, Brown said nothing about union cards during the meeting. When Tirelli appeared as a witness, he also described the Cavoli-Nash argument and the subsequent session in Brown's office. While Cavoli testified he and Nash did not use profanity during their argument, Tirelli testified he heard them use such expressions as "mother fucker," "stick it up your ass," and "fuck you," and that caused him to tell them to knock it off. Tirelli acknowledged alerting Brown to the situation because he felt the em- ployees might hit one another and jeopardize their jobs. His recollection of what was said in Brown's office was: that Brown referred to a problem in the tool room asking Cavoli if he had harassed Nash; that Cavoli ad- mitted he and Nash had exchanged words; that Brown stated he understood the matter concerned a union func- tion and he told Cavoli if he wanted to talk about the Union to do it before work, lunchtime, or after work, not during the day. Tirelli recalls that after saying he could understand that, Cavoli stated : "Mr. Brown, I don't understand why you're so much against this Union." He recalled Brown's response was: "Well, Randy, I'll tell you this . . . I worked under them. I've been in them . . . . They promise you this, they' re going to give you that, they're going to give you this and promise you that, and nothing ever happens." According to Tirelli, Cavoli then told Brown that was not true; they did not promise him anything ; they're not going to give me anything. According to Tirelli, Brown then looked at Cavoli and said, "Well, why do you want to go with the Union," and the conversation ended . During cross-examination, Tirelli was asked if he recalled any- thing being said at the above-described meeting about Cavoli handing out union cards in the shop. He an- swered no. Obviously, the conflicting testimony given regarding what was said at the October 30 meeting requires that I resolve the credibility issues raised . Having carefully considered the matter, I conclude that Tirelli's version of the entire event is the most credible version. I am per- suaded to credit Tirelli's version for a number of reasons. First, the record reveals Tirelli had sought to unionize the facility on a previous occasion , and it is apparent that Guidoni as well as Gonzalez and employee Efraim Me- chanza trusted him because Guidoni freely discussed his unionization efforts with him and the latter individual asked him to attend one of the Union's meetings. Addi- tionally, Tirelli testified without contradiction that Cavoli asked him to sign a card at one time . Asked if he informed his superiors about the described contacts and discussion, Tirelli testified he did not. I believe him. Second, I note the record reveals Cavoli filed a charge 10 Brown indicated , in response to counsel's inquiry, that he had be- longed to two different locals of the same union for close to 10 years, and at one time, he employed a lot of people from the union 354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD with the Region after the October 30 incident. Apparent- ly, he alleged he had been given more onerous assign- ments after the October 30 meeting. Significantly, the Region did not find Cavoli's charge to be meritorious. Finally, I note that the charges alleging that Guidoni, Blair, and Quintana were laid off because they had en- gaged in union activities were filed on October 20 and 21, respectively. That being the case, Brown would have been acting very foolishly if he shortly thereafter threat- ened Cavoli and another employee with discharge if the employees selected the Union as their bargaining repre- sentative. Brown is an intelligent individual , and I am not persuaded he acted foolishly as contended by Gener- al Counsel. In sum, I am unable to credit Cavoli's claim that Brown stated during the October 30 meeting that he knew the employees were attending union meetings and was aware of what occurred during these meetings, and I am unable to credit Cavoli's claim that Brown threat- ened Cavoli and employee John Strang with loss of their jobs if the Union was selected as the representative of Respondent's employees. Accordingly, I recommend that paragraph 7(a) of the consolidated complaint be dis- missed. The Early December Incident Paragraph 7(b) of the consolidated complaint alleges that Respondent, through Brown, created the impression the union activities of its employees were under surveil- lance in early December by "telling an employee that he knew that employees of the Respondent who had signed union authorization cards were against the Union." Gen- eral Counsel sought to prove the allegation through the testimony of employee Luis Gonzalez. Gonzalez testified that in early December he went to Brown's office to obtain permission to take a deer hunt- ing vacation the second week of December. After Brown granted his request, Gonzalez confessed he had held a union meeting at his home and had signed a union card. He testified that Brown then stated : "[W]ell, a lot of people have filled them out, but I know they might have changed their minds because they had an experi- ence 10 years ago. . . . I know a lot of people signed them, but they'll back out, not all of them, but he said some of them will back out." Gonzalez was not cross- examined by Respondent's counsel, and Respondent did not seek to rebut his testimony concerning the above-de- scribed meeting when it presented its defense. General Counsel contends in brief (p. 20) that Gonza- lez's uncontradicted testimony that Brown told him he knew a lot of employees had signed cards but that some would back out "not only indicates that Brown knew the number and identity of the card signers, but that he also knew which of them would repudiate their union sup- port." Noting that the petition in Case 4-RC-16687 was filed on November 3, and that Brown may have learned by any number of lawful means that a lot of Respond- ent's employees had signed union cards by early Decem- ber, I conclude General Counsel's contention is without merit. Patently, Brown did not indicate in early Decem- ber that he knew the names of employees who had signed union cards, nor did he indicate that he knew the names of employees who would withdraw their support of the Union. I recommend that paragraph 7(b) of the consolidated complaint be dismissed. G. The Alleged 8(a)(3) Violations The consolidated complaint alleges that by laying off Samuel Guidoni on October 19, 1987, and by laying off employees Barbara Blair and Jose Quintana on October 20, 1987, Respondent violated Section 8(a)(3) and (1) of the Act. The work histories of the above-named employees and the circumstances surrounding their layoffs are discussed below. Samuel Guidoni Guidoni was originally hired by Respondent in the grinding and miscellaneous department in August 1981. In 1982, when business slowed, Guidoni was moved from a grinder job to the job of floor boy. In that posi- tion, he obtained prints from the office and gathered, washed, and positioned in the various departments the raw materials used by others to manufacture scientific glass products. While he was a floor boy, Guidoni volun- tarily sought, during his own time, to learn the work performed by toolworkers in the tool department. At some point, Brown agreed he could receive pay for working in the tool department after 2 p.m. Eventually, approximately 3 years before the hearing opened in this case, Guidoni was placed in an apprentice grinder posi- tion. In that job, he was initially paid 60 percent of the journeyman rate rather than the normal 40 percent be- cause his hourly rate as a floor boy exceeded the normal starting apprentice grinder rate . As his skill increased, Guidoni was given rate increases every 3 months. Ap- parently, he received step increases on a regular basis until August 1987. The record reveals he was denied what would have been his final step increase as an ap- prentice in August because he did not achieve the pro- duction which was expected of him . The employee testi- fied, without contradiction , that the work which caused him to miss his last step increase was difficult work which journeyman Gonzalez had refused to perform. Guidoni was to be considered for the final raise which would elevate him to journeyman status in late October 1987. As indicated, supra, Guidoni was heavily engaged in union activity during the last 2 weeks of his employment at Respondent. While the record reveals he discussed the possibility of obtaining union representation and the de- sirability of attending an October 14 union meeting with approximately one-third of Respondent's 60 employees during the period extending from October 7 through Oc- tober 14, General Counsel was unable to offer any direct evidence which would show that Respondent 's top man- agement was aware of the employee's union activities. On October 19, Guidoni's supervisor, Sam Fratto, asked him to come to the office after work. When the employee complied with the request at approximately 3:45 p.m., Fratto informed him that Brown had informed him they were starting to slow down; he had to cut back; and he would have to be laid off. Guidoni further indicated that Fratto indicated he had told Brown Gui- LAB GLASS CORP. doni was a good man and he needed him, but Brown had said no; that he wanted to cut back and Guidoni would have to be laid off until things picked up. Brown testified that he decided to lay Guidoni off on Saturday, October 17. He indicated the basic reason for his decision to eliminate a grinder was that two toolmak- ers had left earlier, and that reduced appreciably the amount of grinding that was required . Additionally, he indicated that discussions with a Mr. Partridge , who was connected with the parent company, had led him and Flaim to conclude that they should reduce production for stock so the inventory could be reduced . Finally, Brown indicated that certain scientific glass products were no longer ground as the manufacturing process had changed and teflon valves and similar devices rather than ground stopcocks were utilized in the industry. Brown denied that he was aware of Guidoni's participation in union activities at the time he decided to lay him off. Jose Quintana Quintana was employed at Respondent on July 30, 1987. He was interviewed by Flaim who then introduced him to Tirelli indicating he was his foreman and would determine whether he possessed the coordination to become a tooler. After a day or two, Tirelli advised Quintana he did not have the coordination for the tooler job, but he would seek to find him work in another de- partment. Several days later, Flaim called Quintana and offered him a job as a floorboy in the grinding and mis- cellaneous department. Quintana indicated his duties as a floorboy included utilizing blueprints which designated the parts needed to fill any given customer order. After obtaining and wash- ing the required parts, he took them to the appropriate departments. Additionally, he picked up work from one department after it was completed and took it to the next department which was to perform work on it. Finally, he took finished work to a Lehr or wherever it went. Quintana testified that various other employees per- formed floor boy functions during his period of employ- ment. He admitted that he became upset on one occasion when a Rita Castellini verbally abused him because he brought her parts which were not the correct parts, and her behavior caused him to walk off the job before lunchtime. He returned to work the following morning. The employee testified that on October 20, his supervi- sor, Fratto, told him at quitting time that "I'm going to have to lay you off because of the stock market fall. I'm going to have to let you go. There's not enough jobs and Mr. Brown has lost money." Fratto did not testify at the hearing . Brown testified he decided to lay Quintana off because they did not need him. He claimed he was originally hired as a truckdriver, but could not be used in that capacity because he had no license. Brown indicated the grinding and miscellaneous department was overstaffed when Quintana was assigned to it, and he claimed a lot of complaints were received about his work. Finally, Brown claimed that when he re- viewed the floorboy-driver situation, he observed that Quintana was a fairly new employee, and he had Teddy Castro, Ramon Jimenez and a truckdriver who could ac- complish the floorboy work. Barbara Blair 355 Barbara Blair was hired by Respondent on March 21, 1987. She had previously worked at Kimbelglass where she cut glass using a hot procedure, and at Wheatlin Sci- entific, where she had worked in the grinding room and toolroom. While Blair requested that Flaim start her at $6 per hour, it was eventually agreed that she would start at $5.25 per hour with the understanding that she would re- ceive periodic increases and could expect to reach $6 per hour in a matter of months. Blair testified Flaim informed her that Beres was her foreman. She indicated he assigned her work , solved her problems, granted or denied her requests for time off, corrected and signed her timecards, and sent her to a dif- ferent department (the lamp department) to work on four or five occasions. The employee claimed that, when she first reported to Beres, she asked him about the possibility of layoff. She claims he told her they had not had a layoff in years, and he did not plan to lay anyone off. While employed by Respondent, Blair did hose con- nections, blue bulbs, center necks or flasks, flat bottom cylinders, and put feet on cylinders . She testified Beres told her she was doing well on the lathe. As noted, supra, Blair attended the October 14 union meeting and volunteered to be a cochairman of the in- plant organizing committee who would talk to the women. After signing a union card at the meeting, she gave a card to coworker Debbie Cassidy on October 15 and discussed the Union with Cassidy the following day. Blair also attended the in-plant committee meeting held at Guidoni's home on October 18. At 11:45 a.m. on October 20, Beres informed Blair that she was laid off and she could leave immediately or finish the hose connections she was working on and leave then . Blair protested indicating she could perform the work being accomplished by Debbie Cassidy and Marian Orama, two lathe department employees who were hired after Blair. Beres indicated Cassidy and Orama were being retained because they made less money than Blair. Brown indicated during his testimony that he decided that one of the three newly hired employees in the lathe department should be laid off. He testified he informed Beres of his decision, and instructed Beres to select the employee who would be laid off. Beres testified that he considered the work and attendance records of Cassidy, Orama, and Blair as well as the work he had for each of the employees. He claimed he had been scrounging to find work for Blair for several weeks prior to her dis- charge. Beres testified Blair was erratic in her work and sometimes had problems with dirty seals and dead glass. The employee admitted on cross-examination that she had missed 6 days of work because of an asthmatic con- dition during her tenure of employment. Brown and Beres denied they were aware that Re- spondent's employees were engaged in union activities at the time Blair was laid off. 356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Analysis and Conclusions The causation test spelled out in Wright Line, 251 NLRB 1083 ( 1980), is to be used to determine whether Guidoni, Quintana, and Blair were laid off by Respond- ent for unlawful reasons as contended by General Coun- sel. There, the Board stated (at 1089): First, we shall require that the General Counsel make prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision. Once this is es- tablished, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. General Counsel's initial burden in this case was to prove: that the discriminatees engaged in union or other protected concerted activities; that Respondent was aware the employees had engaged in protected conduct; and that the employees' participation in protected con- duct was a "motivating factor" in Respondent 's decision to permanently lay off the employees. Uncontested facts set forth, supra, clearly reveal each of the alleged discriminatees engaged in union activities. Indeed, those facts reveal that Guidoni initiated and spearheaded the organization campaign , and they reveal Blair volunteered to serve on the in -plant organizing committee. Finally, it is uncontroverted that each of the alleged discriminatees executed union authorization cards prior to the time they were laid off. General Counsel sought to prove through Guidoni's conversations with Tirelli, and through testimony given by Luis Gonzalez, one of the three assistant foreman in the grinding and miscellaneous department that Respond- ent's top management were aware that union activity was occurring on October 19, and that Guidoni was in- volved. The Guidoni-Tirelli conversations are set forth above and need not be repeated here. The Gonzalez tes- timony concerns conversations that allegedly occurred between Gonzalez and Streeter and Brown . Thus, Gon- zalez testified that when Streeter returned from vacation on the morning of Monday, October 19, he told him that he, Guidoni, and other employees were trying to get a union in the facility . According to Gonzalez, Streeter thereafter spoke privately with Brown. Gonzalez claims that, when Streeter returned to the work area, he asked him if Brown had mentioned the union to him . He claims Streeter replied that Brown had asked him if he knew what was going on and claimed he replied that a girl in the office had told him that morning that the employees were trying to get a union in the facility. When Streeter appeared as a witness , he claimed he did not learn the employees were involved with a union until October 21 or 22 when he overheard employees talking about suing Brown. He denied he had discussed the union situation with Gonzalez or Brown on Monday, October 19. While I found Gonzalez to be the more impressive witness and credit his testimony fully, I am compelled to conclude that the Gonzalez testimony is hearsay testimony which cannot support a finding that Respondent was aware on October 19 that Guidoni and other employees were then attempting to organize Respondent's facility. I next turn to General Counsel's contention that the knowledge of employee union activities possessed by Tirelli prior to the discharges of the alleged discrimina- tees should be imputed to Respondent . During his testi- mony, Tirelli claimed he did not inform Respondent's management that Guidoni and other employees were seeking to organize the facility . Tirelli was an impressive witness and he impressed me as being a sincere individ- ual. Apparently, he impressed his fellow workers the same way as revealed by the fact that Guidoni clearly trusted him, and the record reveals that other employees also trusted him because they asked him to sign an au- thorization card and, at one point, he was even asked to attend a meeting at the union hall . I credit Tirelli's claim that he did not inform Respondent 's management that Guidoni and other employees were engaged in union ac- tivity prior to the time the alleged discriminatees were laid off. Accordingly, I find that the knowledge of union activities which Tirelli possessed cannot be imputed to Respondent. Apparently, realizing Tirelli's claim that he did not inform on his fellow employees might be credited, Gen- eral Counsel next contends that under the rationale of General Iron Corp., 218 NLRB 770, 778 (1975), enfd. 538 F.2d 312 (2d Cir. 1976), and similar cases , Respondent's demonstrated animus, the timing of the layoffs and the pretextual nature of the reasons assigned for the layoffs should cause me to infer that Respondent knew the al- leged discriminatees were engaged in union activities. As indicated, supra, General Counsel sought to establish the surveillance allegations and the allegation that Brown threatened job loss if employees opted for union repre- sentation through the testimony of Gonzalez and Cavoli. I have refrained from finding the independent 8(a)(1) violations alleged for the reasons set forth, supra. As a consequence, the instant situation is one wherein General Counsel has failed to show that Respondent harbored animus against the Union, and the record merely reveals three employees were laid off shortly after the union campaign got underway. Finally, General Counsel contends that the instant situ- ation is one wherein the small-plant doctrine should be utilized to justify an inference that Respondent was aware of the union activities of the alleged discriminatees at the time they were laid off. In support of the theory, General Counsel accurately observes that the record re- veals Brown is a "hands on" manager who spends 60-70 hours per week in the facility working with employees. While General Counsel's observation is factual, I note the record reveals that Guidoni and Blair testified that the union activity they engaged in at the plant was ac- complished during breaks, at lunch , and at other non- worktimes. Quintana was not shown to have engaged in any union activity in the plant. Where, as here, approxi- mately 60 production and maintenance employees were employed in the facility and most of the union activity occurred at times other than during working time, I find the small-plant doctrine to be inapplicable. In sum, the instant record contains absolutely no evi- dence which affirmatively shows that Respondent's top management-particularly Brown and Beres-knew on LAB GLASS CORP. 357 October 19 or 20, 1987, that Guidoni, Quintana, or Blair was, engaged in union activity . Moreover, for the rea- sons stated, I conclude the record facts are insufficient to support an inference that Respondent knew the alleged discriminatees were attempting to obtain union represen- tation at the time of their layoffs . Accordingly, I find General Counsel has failed to establish, prima facie, that Guidoni, Quintana, or Blair were laid off in violation of Section 8(a)(3) of the Act. 2. Local 701 and the International Union are labor or- ganizations within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in conduct which vio- lates Section 8(a)(1) and (3) of the Act as alleged in the consolidated complaint. On the foregoing findings of fact and conclusions of law, and on the entire record , I issue the following rec- ommended" IV. THE RESPRESENTATION CASE Having found that Respondent did not, through Brown, create the impression in early December 1987, that the union activities of its employees were under sur- veillance, I recommend that the sole objection to the conduct of the election filed in Case 4-RC-16687 be overruled, and that Case 4-RC-16687 be remanded to the Regional Director for issuance of certification of re- sults of the election held in that case. CONCLUSIONS OF LAW 1. The Respondent, Lab Glass Corporation, is an em- ployer within the meaning of Section 2(6) and `(7) of the Act. ORDER The consolidated complaint is dismissed. IT IS FURTHER ORDERED that Case 4-RC-16687 is re- manded to the Regional Director for Region 4 for issu- ance of certification of results of the April 14, 1988 elec- tion. I ' If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.