Scott Glass Products, Inc.

National Labor Relations Board - Board Decisions

May 14, 1982

261 N.L.R.B. 906 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Scott Glass Products, Inc. and Johnny Ward. Cases
16-CA-8762, 16-CA-8867, 16-RC-8028, and
16-CA-8839
May 14, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On August 28, 1981, Administrative Law Judge
Frederick C. Herzog issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, as well as a motion
to reopen the record.' General Counsel filed an
opposition to Respondent's motion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, 2
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
The Administrative Law Judge found that em-
ployee sentiment, once expressed through authori-
zation cards, would be best protected by a bargain-
ing order. We agree. A summary of the events in
question reveals that, shortly after three employees
met with Respondent's general manager to voice
complaints, the leader of the group was threatened
with discharge. Soon thereafter, employees ap-
proached the Union. The employees' card solicita-
tion efforts were met by threats made by both high
and low levels of supervision of more onerous
working conditions, plant closure, and loss of jobs
should the employees vote in the Union. Also, in a
complete reversal of his statement of only 3 weeks
earlier, Respondent's general manager called an ex-
traordinary meeting of all employees at which a
larger-than-normal wage increase was announced.
At the meeting, all employees were also handed a
previously composed memo detailing Respondent's
stance toward unionization, employees were told
I We deny Respondent's motion to reopen the record for purposes of
receiving evidence concerning the extent of employee turnover. The
Board has long held that employee turnover will not justify the lifting of
an order to bargain in situations similar to that encountered in the present
case. Gibson Products Co., 185 NLRB 362 (1970), enforcement denied 494
F.2d 762 (5th Cir. 1974); Armcor Industries, Inc., 227 NLRB 1543 (1977),
enforcement denied 588 F.2d 821 (3d Cir 1978). Standard-Coosa-Thatch-
er, Carpet Yarn Division, Inc., 257 NLRB 304 (1981).
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings
261 NLRB No. 129
that voting in the Union would be futile, and em-
ployees' grievances were solicited. Finally, a super-
visor imposed a rule on an employee against dis-
cussion of the wage increase.
This clear pattern of unlawful conduct began
almost simultaneously with the employees' organi-
zational efforts. It involved all levels of supervision
at the plant. In a plant as small as the one involved,
Respondent's conduct could be expected to have a
direct impact on all 34 eligible members of the unit.
Respondent's behavior toward its employees was
envisioned by the Supreme Court in N.L.R.B. v.
Gissel Packing Co., Inc., 395 U.S. 575, 614 (1969),
wherein the Court approved the Board's use of a
bargaining order "in less extraordinary cases
marked by less pervasive practices which nonethe-
less still have the tendency to undermine majority
strength and impede the election processes." The
pattern of conduct practiced by Respondent is simi-
lar to situations where the Board and the courts
have found bargaining orders warranted to protect
employee sentiment, originally expressed through
the signing of authorization cards. 3 Respondent's
unfair labor practices were clearly designed to un-
dermine the Union's majority status4 and are of a
type that will leave a lingering effect on Respond-
ent's complement of employees. Respondent's con-
tention that the atmosphere at the plant has been
changed because of the substitution of a new gen-
eral manager is unpersuasive. The actual conduct
of Respondent's general manager and supervisors
would overshadow any subsequent statements by
Respondent that its employees should feel free to
vote according to their choice in an election. It is
mere speculation that the affected employees could
engage in an uncoerced selection or rejection of
the Union. The employees' sentiment is best pro-
tected by the imposition of a bargaining order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Scott Glass
Products, Inc., Pacola, Oklahoma, its officers,
agents, successors, and assigns, shall take the action
: See, e g., Wvie UManufacturing Co., 162 NLRB 799 (1967), supp. deci-
sion, 170 NLRB 991 (1968), enfd. 417 F2d 192 (10th Cir. 1969), cert
denied 397 U.S 913; lower Enterprises. d/b/a Tower Records, 182 NLRB
382 (1970), enfd. 79 I RRM 2736, 67 LC f[ 12,453 (9th Cir 1972); Ann
Lee Sportswear, Inc., 220 NLRB 982 (1975), enfd. 543 F.2d 739 (10th Cir.
1976).
4 Respondent's contention that the Union, by proceeding to an elec-
tion, tacitly admitted that a fair election could be held is contrary to
Board policy See Bernel Foam Products Co., Inc., 146 NLRB 1277
(1964).
906
SCOTT GLASS PRODUCTS, INC
set forth in the said recommended Order, 5 except
that the attached notice is substituted for that of
the Administrative Law Judge.
5 Nothing in our Order should be construed as directing Resposndent to
rescind its wage increase announced on Septembhcr 20, 1979.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAl LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILt NOT interrogate you regarding
your union membership, activities, and sympa-
thies, nor those of your fellow employees.
WE WIlL NOT make statements to you creat-
ing the impression that we are engaging in sur-
veillance of your union activities.
WE WII L NOT threaten that you will be dis-
charged, or that the plant will be closed, or
that more onerous working conditions will be
imposed, or that we will make your union ac-
tivities futile, in the event that you should
select a labor organization to represent you, or
because you have done so, or because you
have engaged in any other protected, concert-
ed activity.
WE WILL NOT attempt to undermine your
support for a labor organization by directing
you to refrain from talking about matters such
as wages, or by telling you to bring your
grievances directly to us and implying that we
will remedy them only if you do not have a
labor organization as your representative.
WE WILL NOT refuse to recognize Chauf-
feurs, Teamsters and Helpers, Local Union
No. 516, as the collective-bargaining repre-
sentative of:
All regular full-time and part-time produc-
tion and maintenance employees employed
at our Pacola, Oklahoma facility; excluding
all other employees, office clerical employ-
ees, sales employees, professionals employ-
ees, guards and supervisors as defined in the
Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in any
of the rights set forth above which are guaran-
teed by the National Labor Relations Act.
WE WILL, upon request, recognize and bar-
gain in good faith with Chauffeurs, Teamsters
and Helpers, Local Union No. 516, as the col-
lective-bargaining representative of the em-
ployees in the unit described above respecting
rates of pay, wages, hours, and other terms
and conditions of employment, and, if an un-
derstanding is reached, embody such under-
standing in a signed agreement.
ScoTT GLASS PROD)UCTS, INC.
DECISION
STAlT. MUN-I OF IHIfI CASE
FRI I)F RICK C. HERZOG;, Administrative La"w Judge:
Based on charges filed by Chauffeurs. Teamsters and
Helpers Local No. 516 (herein called the Union), and
Johnny Ward. an Individual, that Scott Glass Products,
Inc. (herein called the Repsondent), has engaged in
unfair labor practices, complaints were issued in Cases
16-CA-8762, 16-CA-8867, and 16-CA-8839, alleging
violations of Section 8(a)(1) and (5) of the Act.
Based on a petition filed on September 21, 1979, by
the Union, and pursuant to a Stipulation for Certification
Upon Consent Election, an election was held on Novem-
ber 21, 1979, among the Respondent's production and
maintenance employees at its Pocola, Oklahoma, facility.
Of approximately 34 eligible voters, 12 cast votes for the
Union and 19 cast votes against the Union, with no void
or challenged ballots. On November 29, 1979, the Union
filed timely objections to conduct affecting the results of
the election. The Regional Director thereafter ordered
that the issues raised by the Union's objections should be
consolidated and heard with the issues raised in the com-
plaint mentioned above.
Accordingly, this case was heard before me at Poteau,
Oklahoma, on April 1, 2, 3, and 4, 1980, and in Fort
Smith, Arkansas, on June 17 and 18, 1980. At the hearing
all parties were afforded the right to participate, to ex-
amine and cross-exmaine witnesses, and to adduce evi-
dence in support of their positions. In addition, the par-
ties were afforded the right to file briefs and to make
oral argument at the conclusion of the hearing.
Based on the record thus compiled, plus my considera-
tion of the briefs filed by counsel for the General Coun-
sel and counsel for the Respondent, I make the follow-
ing:
907
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONI)ENT
The complaints, as consolidated and amended, allege
that the Respondent is an Oklahoma corporation en-
gaged in the business of manufacturing glass products at
its facility at Pacola, Oklahoma. It is further alleged that
during the 12 months preceding the issuance of the com-
plaint the Respondent purchased and received goods
valued in excess of $50,000 directly from suppliers locat-
ed outside the State of Oklahoma and received gross rev-
enues in excess of $500,000.
Based on these allegations, which were admitted in the
Respondent's answer, I find and conclude that the Re-
spondent is now, and at all times material herein has
been, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE IABOR ORGANIZATION
The complaints allege that the Union is, and at all
times material herein has been, a labor organization
within the meaning of Section 2(5) of the Act. Based
upon the amendment to the Respondent's answer during
the course of the hearing whereby this allegation was ad-
mitted, I find and conclude this allegation of the consoli-
dated complaints to be true.'
111. [THI Al.tlGEI) UNFAIR L.ABOR PRACTICEIS ANI)
OBJEC1IONABI.E CONDUCT
A. Background
The Respondent began its operations in 1975 as a se-
miautomatic manufacturer of glass at its sole plant locat-
ed at Pacola, Oklahoma. It is undisputed that at all times
material herein it had a production and maintenance
work complement of 34 employees, working almost ex-
clusively on 2 shifts. During the 2-1/2 years preceding
November 6, 1979, its president and general manager
was Jack Hood. Since November 8, 1979, these offices
have been filled by George Collins. Each of its two
workshifts was headed by a foreman. The foreman of the
first shift was Bennie Brown, while Allan Jones headed
the second shift, which began its workday at 3 p.m. Its
only other employees were one plant engineer, one vice
president for "technological aspects," one office man-
ager, one payroll clerk, and one retail store clerk.
Prior to the fall of 1979 the Respondent's employees
had not been represented for collective-bargaining pur-
poses, although the Respondent claimed that at various
times there had been rumors of talk among employees re-
garding a union.
B. The Employees' Protest to Hood
In early September 1979 employees Johnny Ward,
Husnee Al-Hakeem, and Mary McGee went to Jack
Hood. They complained to him that they needed a raise,
that seniority was not given sufficient consideration in
job assignments, that discipline was administered in an
erratic fashion, and that some employees were over-
Errors in the transcript have been noted and corrected.
worked. They also inferred that their supervisor, Allan
Jones, engaged in racism or favoritism. Hood promised
that he would discuss their complaint with Jones, upon
his return. He also urged the employees to discuss their
work problems directly with their supervisor. In re-
sponding to the inquiry about a raise Hood said that low
productivity prevented a raise until improvement was
noted. The employees then left Hood's office and began
work on their shift.
About 15 minutes later Ward was approached as he
worked by Supervisor Jones.2 Jones upbraided Ward for
"sticking his nose in [Jones'] business" and threatened to
fire him. Ward responded that his work was affected by
some things that had been happening, indicating that it
had not been his purpose to make trouble for Jones.
Ward's protest to Hood, in concert with Husnee Al-
Hakeem and Mary McGee, concerning such basic work-
ing conditions as pay rates, assignments, discipline, and
workload was, beyond question, protected activity. Pacif-
ic Coast International Meat Co., 248 NLRB 1376, 1380
(1980). Thus, when Jones threatened Ward with dis-
charge for having engaged in such activity the Respond-
ent violated Section 8(a)(l) of the Act (as alleged in par.
7(a) of the consolidated complaint). I so find and con-
clude.
Jones then went and talked the matter over with
Hood. They decided to call Ward in and talk to him
during the next break period. They did so. Both Jones
and Hood told Ward that he should attempt to resolve
such problems directly with Jones before taking them
over his head, to Hood. With that Ward and Jones ex-
changed apologies3 and, in effect, promised to work to-
gether in the future, thereby ending the meeting.
C. The Organizing Activities Begin
On September 14, 1979, employees Ward and Mike
Dudley contacted the Union, speaking to its assistant
business agent, George Baukman. They asked him how
to go about getting union representation at their place of
employment. Baukman instructed them to secure the sig-
natures of their fellow employees on "authorization
cards," 4 which he provided them.
2 Jones apparently returned to the plant around the time that the em-
ployees' meeting with Hood ended. As Jones came into the plant he was
met by inquiries from two employees (David Wilson and Charlie Kyle)
as to his thoughts about "the racial riots that were getting ready to ex-
plode in the plant." They then told him that Ward, Husnee Al-Hakeem,
and McGee had been in to talk to Hood before his arrival, complaining
about his supervision and accusing him of racism Jones tacitly admitted
that Ward's version of this exchange was essentially correct and failed to
deny that he threatened Ward. I credit Ward's testimony, as Jones' testi-
monial demeanor marked him as an unreliable witness to an extreme
degree. Moreover, his denial that he was angry when he spoke to Ward
seems neither candid nor plausible.
3 The apology notwithstanding it is clear that neither Jones nor Hood
ever retracted the threat to fire Ward. Instead, as shown from Jones' tes-
timony, the apology he made to Ward was concerned not at all with his
threat to discharge Ward, but merely with the manner in which the
threat was delivered; i.e., publicly.
4 Each such 5- by 6-inch card bore the logo of the Union's internation-
al affiliate in the upper left coner and was headed, in bold lettering, with
the words "APPLICATION FOR MEMBERSHIP IN LOCAL
UNION NO , Affiliated with the International Brotherhood of Team-
Continued
908
SCOTT GLASS PRODUCTS, INC.
During the next 3 days, Ward and Dudley, aided by
employees Dawan Al-Hakeem and Husnee Al-Hakeem,
passed out the cards to fellow employees and secured, in
addition to their own, 17 signed authorization cards.
Thus, the Union now claims majority representative
status based upon a showing of authorization cards
signed by 21 of the 34 members5 of the proposed bar-
gaining unit.
D. The Petition and Election
Meanwhile, Baukman prepared a petition for a Board-
conducted election and mailed it to the Board's Regional
Office on September 19, 1979, where it was received on
September 21, 1979. At the same time Baukman sent a
letter to the Respondent, by certified mail, return receipt
requested, claiming that the Union represented a major-
ity of the Respondent's production and maintenance em-
ployees at its Pacola, Oklahoma, plant for purposes of
collective bargaining. The letter went on and, among
other things, named seven employees, including Husnee
Al-Hakeem, Dawn Al-Hakeem and Johnny Ward, as
active organizers on behalf of the Union. It also stated,
"I am requesting a meeting as soon as conveniently pos-
sible for the purpose of negotiating a collective bargain-
ing agreement." The Respondent did not, however, vol-
untarily recognize and bargain with the Union as Bauk-
man had requested.
sters, Chauffeurs, Warehousemen and Helpers of America." In smaller
lettering the body of each card read:
Date
Date of Application
1, the undersigned, hereby apply for admission in the above Local
Union and voluntarily choose and designate it as my representative
for purposes of collective bargaining, hereby revoking any contrary
designation. If admitted to membership, I agree to abide by the con-
stitution of the International as well as the Local Union Bylaws
which are not in conflict with International laws and thereupon
accept and assume the following oath of obligation: I pledge my
honor to faithfully observe the Constitution and laws of the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America. I pledge that I will comply with all the rules
and regulations for the government of the International Union and
this Local Union I will faithfully perform all the duties assigned to
me to the best of my ability and skill. I will conduct myself at all
times in a manner as not to bring reproach upon my union I shall
take an affirmative part in the business and activities of the Union
and accept and discharge my responsibilities during any authorized
strike or lockout. I will never discriminate against a fellow worker
on account of creed, color or nationality. I will at all times bear true
and faithful allegiance to the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America and this
Local Union.
Following this were blank spaces for personal information to be filled in
by the employee; e.g., name, birthday, social security number, address,
and whether or not employee was a member of a union. The reverse side
of each card was blank originally. But, by the time they were introduced
into evidence, 20 of the 21 cards offered bore the "date stamp" of Sep-
tember 21, 1979, together with the imprinted notation that they had been
received on that date by the Board's Region 16 in Fort Worth, Texas. I
hereby officially notice said notations, as requested by counsel for the
General Counsel, as evidence of the fact that each such card was execut-
ed, if at all, no later than the date shown on its reverse side.
5 The number of employees to be included within the bargaining unit
is conceded by the Respondent to be 34 1 so find, in light of the fact that
the Respondent's own payroll records for the period from September 16
to September 22, 1979, also show that there were 34 employees during
the period.
Instead, on October 17, 1979, the Respondent and the
Union entered into a Stipulation for Certification Upon
Consent Election. The election agreement provided for
an election on November 21, 1979, among a unit of:
All regular full-time and part-time production and
maintenance employees employed at the [Respond-
ent's] facility located at Pacola, Oklahoma [but ex-
cluding] all other employees, office clerical employ-
ees, sales employees, professional employees, guards
and supervisors as defined in the Act.
As shown previously herein, an election was conducted
as scheduled under the supervision of Board personnel.
The results were that, of 34 eligible voters, 12 voted in
favor of the Union and 19 voted against it. There were
no void or challenged ballots. However, the Union filed
timely objections to the conduct of the election, alleging
in pertinent part as follows:
Supervisor William A. Jones threatened employ-
ees with discharge for concerted, protected activi-
ties, and Supervisor Jack Hood promised a wage in-
crease during the organizing campaign and threat-
ened employees that it would be futile to join a
union as no contract would ever be signed, and
orally solicited grievances of employees.
Further, supervisors informed employees it
would be useless to join a union, refused to allow
an employee to discuss wages and interrogated em-
ployees regarding union activities. All of the con-
duct complained of interfered with the outcome of
the election.
The Regional Director noted the Union's reliance upon
evidence connected with the then outstanding unfair
labor practice complaints and ordered the consolidation
for hearing of all such issues. He specifically noted that
certain conduct, i.e., the announcement of a forthcoming
general wage increase, occurred before the filing of the
petition herein, but nonetheless ordered its litigation.
E. The Meeting of September 20, 1979, and the Wage
Increase
On September 20, 1979, Hood caused all the Respond-
ent's production and maintenance employees to be as-
sembled so that he might speak to them. Hood an-
nounced an across-the-board wage increase for the Re-
spondent's production and maintenance employees at this
meeting. The new rates were set out on a newly revised
pay schedule which Hood distributed to all employees
via Supervisors Jones and Bennie Brown. Each employ-
ee was also given a copy of a memorandum, dated
March 14, 1978, signed by Jack Hood, entitled "Compa-
ny Policy Regarding Labor Unions." $
The text of the memorandum appears below:
Scott Glass Products is a non-union organization. It is our wish for
it to remain that way. We prefer to deal with people directly rather
than through a third party.
We recognize that from time to time we will have problems just as
any organization does. However; the tensions created by the inter-
vention of outsiders only intensify and increase those problems.
Continued
909
DECISIONS OF NATIONAL LABOR REItATIONS BOARD
Hood's verbal message to employees at that time, ac-
cording to employee Ward, included statements that he
had heard a rumor that there was an effort to organize a
union going on but that a union was neither needed nor
wanted, that the union would be futile, that all a union
could do would be to get employees another payroll de-
duction, that he would not sign a contract with a union,
that employes had no need to try to get a contract, and
that the plant was paying the highest wages it could
afford. Ward admitted, however, that Hood said that the
Respondent would probably someday enter into a con-
tract.
Dawan Al-Hakeem recalled Hood at one point stating
that he would not sign a contract and could not grant a
larger wage increase. He also testified that Hood told the
employees that his door was always open and that they
did not need anyone to bargain for them.
Employees Michael Dudley and Stephen Taylor, Jr.,
corroborated the testimony of Ward and Dawan Al-
Hakeem to the effect that Hood told employees that the
Union could not do any good, that there would be a
deadlock, in addition to stressing that his door was
always open to employeee who could not resolve prob-
lems with their supervisors.
The Respondent presented only the testimony of Hood
in opposition to the testimony of Ward, Dawan Al-
Hakeem, Dudley, and Taylor, regarding the events
which occurred at the meeting.7 Hood testified that he
We will continue, as we have done, to provide the best pay and
benefits for our employees that we can afford. We will do our best
to treat everyone fairly and consistently. We will be honest and olpen
in all our dealings with all employees The only thing a labor union
could provide would be an additional deduction from your pay-
check.
I want to emphasize that the presence of a union in our company
can only hurt the business upon which we depend for our livelihood
You do not have to pay a third party for the fair treatment you de-
serve to expect from this company.
If anyone should ask you to sign a union authorization card, we
are asking now for you to refuse to sign it. Anyone has a right to
belong to a union You have an equal right to chxoose not to belong
to one. If any other employee or outsider should try to coerce you
into signing a union card, please report this to me or to your super-
visor and we will take immediate action to see that this harassment is
stopped
As I said before, we know we will have problems from time to
time. We want to work with you and you with us to solve those
problems. No union has ever gotten anyone his job, or helped him to
keep it. We encourage you to bring your problems to your supervi-
sor, to me personally, or to anyone else you choose, and we wil do
our best to solve them. Each of you is an individual, and very im-
portant to the company. You have the right to speak for yourself I
assure you that we will listen.
7 Supervisors Jones and Brown, though shown to have been present at
the September 20, 1979, meeting, were not questioned as to what Hood
told employees. I conclude that the Respondent's failure in this respect
gives rise to an inference that their testimony on the subject would have
supported the General Counsel's theory. General Teamsters Local 959,
State of Alaska, IBTW (Northland Maintenance), 248 NLRB 693 (1980)
Based on their testimonial demeanor I credit both Ward and Dawan
Al-Hakeem over Hood. My finding in this is only partially supported by
the testimony of Dudley and Taylor, each of whom testified with appar-
ent truthfulness though, at the same time, with demonstrable difficulty in
recalling with accuracy or in detail. I found, however, that both Ward
and Dawan Al-Hakeem exhibited honesty, sincerity, and reasonable accu-
racy in their testimony. Hood, on the other hand, seemed both vague and
evasive when questioned about his motivations and the events leading up
to the meeting. And, regarding the meeting itself, his testimony was
framed by leading and suggestive questions, despite the fact that I gave
announced the wage increase, and then "covered" the
rumored union organizational activities and the Respond-
ent's policy with respect thereto. Responding to sugges-
tive questions, Hood denied that he told employees that
the Respondent could not afford a union, or that it
would not sign a contract with the union.
And, with respect to the motivation for the wage in-
crease Hood testified that he had long since recommend-
ed that the raise be given, but that the Respondent's
board of directors had not agreed with him, due to the
Respondent's poor financial condition. He denied that
the rumors of union activity in the plant had anything to
do with the decision to announce a wage increase on
September 20, 1979, to be effective on September 30.
I conclude that the Respondent's announcement and
subsequent implementation of a substantial across-the-
board wage increase was violative of Section 8(a)(l) of
the Act."
The across-the-board raise given here varied from the
Respondent's prior practice in both time and amount and
was announced on 6 days after the onset of union activi-
ties at the plant, and but I day before the petition was
filed. The Respondent's explanation and justifications for
the amount and timing of the raise are simply not credi-
ble.
Hood was admittedly aware of the activities and
rumors concerning the Union9 by the time the wage in-
crease was announced.'° While he attempted to portray
such rumors as "run of the mill" matters, of no special
concern to him, it is abundantly clear that Hood did not
himself regard them as such. For the meeting of Septem-
ber 20, 1979, marked the sole occasion in the history of
the Respondent that a meeting of all employees, from
both shifts, had been held. I regard this fact as evidence
of special concern on the part of Hood and the Respond-
ent.
Hood recited a pattern of wage increases by the Re-
spondent. He stated that it was the Company's intent to
give raises every 6 months. He testified that employees
explicit warnings during the hearing regarding the effect of such ques-
tioning.
In making these credibility resolutions I have borne in mind the crimi-
nal conviction of Ward, as discussed elsewhere herein. While I find that
his credibility is diminished by virtue of that conviction I also find that
he retained sufficient credibility to warrant being credited over Hood
I The Respondent's repeated and vigorous objections to the introduc-
tion of any evidence of "pre-petition conduct" were, of course, overruled
insofar as any such conduct might show the commission of unfair labor
practices. Such objections might have merit in connection with the con-
duct alleged to have tainted the election, as is discussed elsewhere herein
a Hood admitted that the plant's maintenance man telephoned him on
Saturday, September 22, telling him of the arrival of the "registered"
letter.
1' Given the small size of the plant, and the demonstrable ease with
which rumors reached the ears of management in this case, I infer that
the Respondent had knowledge of the union activities of its employees,
including the fact that many were being solicited to sign authorization
cards, within a day or so after such activities began. Coral Gables Conva-
lescent Home. Inc., 234 NLRB 1198 (1978); Friendly Markets, Inc., 224
NLRB 967, 969 (1976); Hadley Manufacturing Corporation, 108 NLRB
1641 (1954); compare K & B Mounting, Inc., 248 NLRB 570 (1980),
where no inference was held warranted due, inter alia, to the fact that
employees conducted their union activities off the employer's premises,
and there was no extrinsic evidence of knowledge by the employer.
Here, in contrast, Hood admitted that Supervisor Brown had informed
him of the union activities sometime prior to the September 20 meeting
910
SCOTT GLASS PRODUCTS, INC.
were given a 5.5-percent raise in November 1977, that
another raise of 5.5 percent was given the employees in
May 1978, and that a 5- to 5.5-percent raise was given
employees in December 1978. However, the pattern was
broken when no raise was given to the employees in
1979 prior to the September 20 meeting.
Then, despite the Respondent's inability to offer em-
ployees' hope of an upward wage adjustment less than
3 weeks previously, not only was a wage increase sud-
denly announced, but its amount substantially exceeded
that of any previous increase. The raise granted in Sep-
tember 1979 was for 7 percent which exceeded the pat-
tern, by 1.5 to 2 percent.
The Respondent sought to portray Hood's remarks
about the Union during the September 20 meeting as
merely incidental to his primary purpose of announcing
the wage increase. In my view these efforts served only
to underscore the linkage between the employees' inter-
est in unionism and the announcement. Hood utilized a
copy of the memo relating to the Respondent's policy re-
garding labor unions, plus prepared notes, in delivering
his talk to the employees. Yet these documents deals
almost exclusively with unions and arguments in support
of the Respondent's expressed antipathy toward union-
ism. They do not contain even a mention of topics such
as productivity, sales, advertising, or the Respondent's
relationship to its distribution, all of which, according to
Hood, were discussed.
Considering the proximity in time between the onset
of union activities and the announcement of an extraordi-
narily large wage increase, the sudden and allegedly for-
tuitous reversal of the Respondent's views about the feas-
ibility of a raise can only be viewed as highly suspicious.
Charles Batchelder Company, Inc., 250 NLRB 89 (1980),
enforcement denied in part on other grounds 641 F.2d 33
(2d Cir. 1981); Grandee Beer Distributors, Inc., 247
NLRB 1280 (1980), enfd. as modified [bargaining order
vacated] on other grounds 630 F.2d 928 (2d Cir 1980);
compare Peavey Company, 249 NLRB 853 (1980), where,
unlike the instant case, the employer announced a change
in its policy before the occurrence of the employees'
union activities.
And such suspicions harden into firm belief when met
with the Respondent's contrived and inconsistent expla-
nations for its actions.
Hood testified that he recommended that raises be
granted based on the fact that the pattern indicated that
they were "due" in early summer 1979. Yet the record is
silent as to why he had felt no sudden or compelling
need to explain to employees that they would not re-
ceive the raise "due" in early summer 1979. If manage-
ment's sense of a strong need to communicate with em-
ployees in what was, for this Respondent, an extraordi-
nary manner, had truly been so keen as portrayed by
Hood it seems logical to ask why employees were pre-
" I credit the testimony of Ward and Husnee Al-Hakeem regarding
their conference with Hood in early September. While I have previously
expressed my view of the testimonial demeanor of Ward and Hood, a
comment regarding Husnee Al-Hakeem's demeanor is appropriate here
Husnee Al-Hakeem testified in a calm, deliberative manner. He seemed to
have good facutal recollection, and he testified with seeming forthright-
ness, though, to be sure, in a soft-spoken way Based on his demeanor I
credit his testimony over that of Hoxod
sented no explanation at all when the wage pattern was
broken, and they were given no raises at all, in early
summer 1979. 1 answer the inquiry by inferring that
there must have been something other than the employ-
ees' economic well-being of prime importance to the Re-
spondent's management. Circumstances here convince
me that "it" was the Respondent's apprehension of the
seriousness of the threat of unionism which accounted
for the announcement of September 20, 1979.
In attempted explanation of the timing and content of
such announcements the Respondent elicited testimony
concerning a dramatic turnaround in its economic cir-
cumstances.
Dennis Wood, the Respondent's certified public ac-
countant, testified that he was not consulted by the Re-
spondent concerning either the June 1979 denial of a
raise or September 1979 raise. However, he opined that,
had he been consulted, he would have recommended in
favor of the September 1979 raise and against any June
1979 raise. He testified that he would have arrived at
these conclusions based on his consideration of three fac-
tors: the Respondent's historical financial production
trends, the Respondent's exclusive distribution agree-
ment, and the "fact" that the Respondent was approach-
ing its "best six months of production during a year [by
September 20, 1979]."
And Henry Tichman, a member of the Respondent's
board of directors, testified that it was the business' tur-
naround from a "disastrous" third quarter in 1978 which
convinced the board of directors on September 18 or 19,
1979, not only to grant its employees a raise, but also to
grant an extraordinarily large raise, to help them "catch
up" from the economic hardship caused by the fact that
no raise at all had been granted in the preceding May or
June. He also adverted to employee "turnover" and the
"need to remain competitive""2 as bases for the decision
to grant the September 1979 raise, claiming all the while
that the advent of the Union's campaign had not been
brought to the attention of the board of directors until
late September.
Yet Tichman's generalities proved singularly malodor-
ous. Under cross-examination he testified without credi-
bility, as shown by the examples which follow:
Q. So when you granted this increase you were
actually looking at facing a quarter that historically
had been bad?
A. Yes, but so had the previous quarter there.
But we turned around in this quarter here, we
didn't expect this to happen.
Q. Let me ask you something, Mr. Tichman: you
say that his company has turned around in the quar-
ter and you are referring to the third quarter of
1979?
A. It appeared to that.
12 Tichman's view of what constituted a "competitive wage" in the
area of the Respondent's plant seems so purposefully selective as to lack
credence. It ignores, for example, the words of Hood, who is shown, by
his own handwritten notes, to have told employees at the September 20
meeting that the Respondent's wages were already higher than those paid
by unionized glass plants in the area.
911
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. You don't look at just one quarter and consid-
er that a turnaround, do you, you as a businessman
with these multiple companies? You don't look at
just one quarter and say this business is turned
around?
A. I am eternally optimistic about Scott Glass
Company.
Q. So the company was actually making less
money for the same period of time in 1979 when
you granted that 7 to 7-1/2 percent increase, isn't
that correct?
A. That's correct.
Q. And isn't it true or isn't it a fact that on the
November 7th, 1977 increase the 5-21-78 increase
and the 12-7-78 increase that those were only 5 to
5-1/2 percent?
A. They were approximately 5 percent.
So when the company is doing worse in 1979
then [sic] it did in 1978 for the same period you
granted a 7 percent increase, 7 to 7-1/2 percent in-
crease?
A. That's correct.
Q. And that increase was effective shortly after
you were notified by the union, isn't that correct,
that they were organizing?
A. Well, after the fact I know this.
The utter implausibility implicit in such testimony, taken
together with Tichman's cavalier demeanor while testify-
ing, caused me to conclude that the truth more likely lay
in the opposite of Tichman's testimony. As the Supreme
Court stated in N.L.R.B. v. Walton Manufacturing Co.,
369 U.S. 404, 408 (1962), quoting from Dyer v. MacDou-
gall, 201 F.2d 265, 269 (2d Cir. 1952):
[For the demeanor of a witness] may satisfy the tri-
bunal, not only that the witness' testimony is not
true, but that the truth is the opposite of his story;
for the denial of one, who has a motive to deny,
may be uttered with such hesitation, discomfort, ar-
rogance or defiance, as to give assurance that he is
fabricating, and that, if he is, there is no alternative
but to assume the truth of what he denies.
Wood's testimony was, of course, based on mere hy-
pothesis and hindsight. He had no input, nor was he
asked for any, at the time of any actual decision to either
withhold or grant a wage increase. And, based on the
implausibility of his testimony regarding the basis for his
opinions, his opinions cannot be credited. I am not per-
suaded by reasoning which bases a finding of an "histori-
cal trend" upon only one instance, or which excludes
from consideration contradictory or inconsistent data by
the simple expedient of labeling it as a "start up" period
or a "learning period." Indeed, I am unable to discern
the distinction between Wood's first factor (historical fi-
nancial production trends) and his third factor (the ex-
pectation that the upcoming 6 months would be the Re-
spondent's best during the year). And Wood's second
factor (the distribution agreement) has remained constant
throughout the Respondent's existence. When pressed by
cross-examination regarding such logical inconsistencies
Wood sought refuge in a verbal smokescreen. He
claimed that additional factors underlay his previously
expressed opinions. Each, in turn, was shown to be false;
he had to abandon the cover of "production" in light of
his own documentation that losses occurred in the last
quarters of both 1978 and 1979; he next attempted to
hedge by noting that shipping schedules "may have" dis-
torted his charts and graphs, but he had to concede ulti-
mately that the Respondent ultilized the same methods
for shipment, and sold its product pursuant to the terms
of the same sales contract, throughout both 1978 and
1979.
So far as I can tell, the single most important factor
bearing on the decision to grant a raise or not to grant a
raise was, according to Wood, an historical trend, and,
according to Tichman, the "great encouragement"
drawn from evidence of a turnaround from a disastrous
financial situation.
However, I cannot believe that reasonable business
people could or would have drawn such encouragement
from the evidence presented by the Respondent.
For even the post hoc charts and graphs prepared by
Wood fail to support the Respondent's alleged optimism,
suddenly gained on September 18 or 19, 1979. Indeed, a
case to the contrary may be constructed off these self-
same documents. The Respondent cannot be logically
consistent and still claim that (1) a "trend" is established
by only one prior instance, (2) the Respondent had
reason to anticipate the fourthS and first quarters to be
its best of the year, and (3) it lost a substantial sum of
money in the fourth quarter of 1978. Nor can the dispar-
ity in earnings between its third quarter earnings of 1978
and those for the same period for 1979 be viewed as rea-
sonable evidence of a turnaround, when its year-to-date
earnings for 1979 still lagged significantly, roughly 10
percent, behind those for 1978.
Thus, in conclusion, I find that the Respondent violat-
ed Section 8(a)(l) of the Act by promising a wage in-
crease to its employees on September 20, 1979 (as al-
leged in par. 7(b) of the consolidated complaint), as well
as by the related conduct of actually granting the wage
increase on September 30, 1979.
In light of the credibility resolutions reached previous-
ly herein I also find and conclude that the Respondent
threatened employees by implying that their union activi-
ties would prove to be futile (as alleged in pars. 7(c) and
7(e) of the consolidated complaint) and by soliciting
grievances from employees in order to induce them not
to support the Union (as alleged in par. 7(d) of the con-
solidated complaint). It seems only reasonable to con-
clude that Hood's notes accurately reflect what he in-
tended to, and did, say to employees. And the notes
(Resp. Exh. 8) show that he began by advising employ-
ees of their wage increase and followed up by speaking
of "extracurricular activities." Then, in order, employees
Is In fact, the alleged optimism regarding the anticipated earnings for
the fourth quarter of 1979 was to be dashed. In that quarter the Respond-
ent suffered a loss of money roughly double that of its "disastrous" (ac-
cording to Tichmen) third quarter of 1978
912
SCOTT GLASS PRODUCTS, INC.
were told to solve their problems directly with him or
other supervisors, that the Union could not help, that
their wages were already higher than the area's union-
ized glass companies, and that the Respondent was not
making a profit. In order that the point not be missed,
Hood then returned to the theme that he had an "open
door policy," so that employees should solve problems
directly with him or other supervisors.
Taken in the context of the union activism, and the
wage increase, and considering the entire tenor of
Hood's remarks to the assembled employees, it is difficult
to understand how employees could have failed to miss
the point being unsubtly implied by Hood, i.e., a union
contract would be possible, if at all, only after a long
struggle, while wage increases and other work-related
problems would be taken care of directly by the Re-
spondent so long as the Union was not selected. As
stated above, I find the delivery of such a message, espe-
cially under the circumstances then prevailing, violative
of the Act.
F. Violations Attributed to Supervisor Benny Brown
1. The consolidated complaint alleges that Supervisor
Benny Brown, in early October 1979, interfered with
employee exercise of rights guaranteed in Section 7 of
the Act by prohibiting an employee from discussing the
subject of wages with other employees.
The General Counsel's evidence was that Dawan Al-
Hakeem was told by Brown that Brown had been told
by two other employees that Dawan Al-Hakeem had
been discussing the pay raise which had been announced
by Hood. Dawan Al-Hakeem denied that he had been
discussing it, but testified that Brown nonetheless direct-
ed him to stop talking about the raise, and to let any
such talk emanate from Hood.
The Respondent's evidence, through Brown's testimo-
ny, was to the effect that Brown asked Dawan Al-
Hakeem if he had been asserting to other employees that
the announced raise would be revoked, and that he made
this inquiry merely to dispel a groundless rumor. Brown
testified that Brown did not tell Dawan Al-Hakeem what
Al-Hakeem was to say or not to say to fellow employ-
ees, though he did urge him to speak to Hood if he had
questions or doubts to resolve.
I conclude that Dawan Al-Hakeem's account of this
matter is entitled to greater credence than that of Brown.
As explained elsewhere herein, I found that Dawan Al-
Hakeem's credibility was quite good. Brown's on the
other hand was just the opposite, with his demeanor
being characterized by tendencies to evade, quibble, or
equivocate. Nor was Brown's credibility enhanced by
the fact that in several important areas his testimony was
produced only after suggestive questions were put to him
by the Respondent's counsel.
2. The consolidated complaint alleges that Supervisor
Benny Brown, in early October 1979, interrogated an
employee regarding his own and others union activities,
membership, or desires.
The General Counsel's evidence, again via the testimo-
ny of Dawan Al-Hakeem, was that a few days after the
incident set out above, Brown asked him if he had been
talking to someone about the Union or if he had heard
someone saying something about the Union on company
property. Dawan Al-Hakeem testified that he responded
negatively.
The Respondent presented no evidence regarding this
matter, making no inquiry about it during Brown's testi-
mony. However, upon cross-examination, Brown did
generally deny that he had ever talked to Dawan Al-
Hakeem about the Union, aside from the incident men-
tioned above.
I conclude that Brown did interrogate Dawan Al-
Hakeem about his own and other employees' union ac-
tivities, in violation of Section 8(a)(l) of the Act.
G. Violations Attributed to Supervisor William A.
Jones
1. It is alleged that Supervisor "Alan" Jones, on an un-
known date in September 1979, threatened reprisals
against employees if they engaged in union activities.
Employee Michael Dudley testified that Jones once told
him while he was on a break with another employee in
the parking lot that, while the Union would take money
from his checks it would not get anything from the
Company, because the Company was broke.
Jones, while recalling that he had a conversation with
Dudley in September 1979 concerning the Union, depict-
ed a scene in which he merely responded to Dudley's
questions about the possibility of a $3-per-hour raise. He
denied that he told Dudley that the Union would merely
take money from their paychecks, that the Company was
broke, or that no raise could be afforded.
Dudley's credibility was damaged in connection with
this allegation by his obvious inability to recall when he
talked to Jones. Additionally, and more significantly in
my view, Dudley's testimony about what Jones said to
him was quite vague, so much so as to cause me to reject
it as a basis for finding either a violation of Section
8(a)(1) of the Act, or as a basis for the election objec-
tions.
Accordingly, paragraph 7(h) of the consolidated com-
plaint stands unproven and shall be dismissed.
2. It is alleged that Jones threatened employees with
the reprisals of more strict working rules if the Union
came in.
Employee Terry Underwood testified that Jones told
him, around September 16 or 17, that, if the Union came
in, Underwood's job would be harder and Jones would
be more strict in what he required Underwood to do.
Jones denied the threat, saying that he merely ex-
plained to Underwood that whenever a third party is in-
volved there are additional matters to consider in a work
relationship.
I credit Underwood over Jones. Underwood appeared
to be earnestly trying to testify accurately. Jones, how-
ever, just as diligently sought to evade and shift, and
clearly was less than candid in his recital of his discus-
sion with Underwood.
I find and conclude that Jones did threaten Under-
wood, as alleged in paragraph 7(i) of the consolidated
complaint.
3. It is alleged that Jones, on or about September 18,
1979, threatened employees with plant closure if the
913
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union won the election, and with discharge or other re-
prisals for participating in union activities. It is also al-
leged that Jones created the impression of surveillance of
employees' union activities.
Employee Paul Benedict testified that he overheard a
conversation between Jones and employee David Wilson
on or about September 19, 1979, while the three sat in
Jones' car at the Respondent's plant. He said that Jones
and Wilson were discussing the unionization effort. He
testified that Jones said that Johnny Ward was the
leader, an that anyone who followed "the little leader"
would wind up losing their job, as the Company could
not afford to pay union wages. He also recalled Jones
stating that he was "disappointed" in his roommate, em-
ployee Sam Fowler, for "sneaking around" with the
Union "behind his back." Jones went on, according to
Benedict, to say that he knew how much money the
Company could pay, that the Company was already
paying the maximum amount it could afford, and that if
the Union were brought in the plant would have to shut
down, so that they would all lose their jobs.
Jones denied that any such conversation as Benedict
described ever took place, but placed Benedict's credibil-
ity in question by testifying that Benedict had a grudge
against the Respondent growing out of a workmen's
compensation controversy. He recalled that Benedict
once vowed to sue the Respondent for $30,000. Benedict,
on the other hand, admitted the workmen's compensa-
tion controversy, but denied that he had made the threat
alleged.
Jones' testimony was to the effect that he never par-
ticipated in a conversation with Jones in the presence of
Benedict, that Jones never said employees would lose
their jobs if the union came in, and that Jones never said
that the Respondent either could or could not afford to
pay higher wages.
While certainty is not possible in instances of such
direct and complete conflict as shown in the testimony
of these three witnesses, I am persuaded that the version
supplied by Benedict is, by far, the more credible. 1
Benedict was an extremely impressive witness in his de-
meanor, and I was influenced to believe his testimony by
his evident candor and regard for accuracy. The testimo-
ny of some witnesses has what can only be described as
the "ring of truth." Benedict clearly belonged in that cat-
egory.
Jones' testimonial demeanor lacked either candor or
the appearance of one sincerely attempting to speak hon-
estly. His cramped posture, his voice trailing off as he
came to the end of answers, his averted eyes, and even
his hand cupped over his mouth as he testified, are all
viewed by me as indicators of a lack of candor and an
intent to evade.
Nor was Wilson a better witness than Jones. His bias
against the Union and Johnny Ward was so pronounced
14 As noted in the General Counsel's brief, background circumstances
seem to square with Benedict's version of the facts. For, admittedly,
Jones once had a practice of going out to his car, with others employed
at the plant, during break periods. Further, Jones' "disappointment" in
his roommate, employee Fowler, as testified to by Benedict, seems con-
sistent with the fact that Jones and Fowler admittedly were forced to
reach an agreement not to discuss the Union because of "hard feelings"
engendered by such discussions.
as to seem palpable. The tone of his voluble and lengthy
testimony, with much extraneous material being volun-
teered by him, seemed contrived to impress his superiors
with the knowledge that he had genuine contrition for
his brief period of support for the Union. His testimony
regarding Alan Jones' alleged threats or impression of
surveillance was, in large part, the product of leading
and suggestive questions, despite the fact that Respond-
ent's counsel was warned several times during the course
of the hearing of the negative impact such questions
would have on the credibility of his witnesses.
Accordingly, I find and conclude that Jones made
threats and created the impression that the Respondent
had knowledge most likely gained by means of surveil-
lance of the union activities of employees, as alleged in
paragraphs 7(j), 7(k), 7(1), and 7(m) of the consolidated
complaint.
4. It is alleged that Jones, in October 1979, told an em-
ployee that it would be futile for employees to support
the Union.
However, I find no reference thereto in the General
Counsel's brief Jones' threats to the effect that employ-
ees' union activities would prove to be futile appear to
be encompassed within other allegations of the com-
plaint.
Accordingly, paragraph 7(n) of the consolidated com-
plaint is deemed unproven and shall be dismissed.
5. It is alleged that, on or about November 7, 1979,
Jones threatened to discharge a union "ringleader" and
other employees, and conditioned future employment
upon voting against the Union.
The General Counsel's evidence in support of the alle-
gations was supplied by the testimony of Husnee Al-
Hakeem, who testified that, in September, he overheard
Supervisor Jones tell employees Rick Hyatt and Dave
Wilson that Ward was the union movement's ringleader
and would be fired, and, further, if Hyatt and Wilson
wished to keep their jobs, they should vote against the
Union. According to Husnee Al-Hakeem, Jones conclud-
ed by warning Hyatt and Wilson that those employees
who worked on behalf of the Union would be fired in
the long run.
The Respondent's evidence, consisting of the testimo-
ny of both Jones and Wilson, was to the effect that Jones
never made any such statements to Hyatt and/or Wilson.
This conversation was alleged to have occurred in the
Respondent's lunchroom at the plant, which is situated
near several pieces of machinery, including two blowers
and four furnaces. The record contains a great deal of
testimony regarding the physical layout of the lunch-
room and the various machines, all going to the inherent
probability that one could or could not overhear what
was said inside the lunchroom while standing on the out-
side of the building near a window, as Husnee Al-
Hakeem testified.
This evidence is sufficient to cause me to discredit
Husnee Al-Hakeem's testimony regarding this incident,
notwithstanding my previous observations about the
credibility of the witnesses, Husnee Al-Hakeem, Jones,
or Wilson. While I continue to regard both Jones and
Wilson as generally unreliable witnesses I am unable to
914
SCOTT GLASS PRODUCTS, INC
accept Husnee AI-Hakeem's version of the incident as
accurate.
Accordingly, I shall dismiss paragraphs 7(o), 7 (p), and
7(q) of the consolidated complaint.
H. Criminal Convictions and Credibility
The Respondent argues that much of the General
Counsel's evidence tending to prove unfair labor prac-
tices, objectionable conduct, and valid execution of au-
thorization cards was supplied through the testimony of
witnesses who should not be believed. It points to the
fact that Johnny Ward, Dawan Al-Hakeem, Husnee Al-
Hakeem, and Michael Dudley each admitted under
cross-examination that they would each, at some point in
their lives, run afoul of the criminal law, as set forth
below:
(a) Johnny Ward testified under cross-examination that
he was once convicted 1 5 of a crime, which he stated
was either burglary or breaking and entering of a pawn-
shop. He said that this occurred some I I years previous-
ly, when he was 16 years of age, in the State of Califor-
nia.
(b) Further cross-examination of Ward resulted in his
admission that he had been convicted of armed robbery
of a store in the State of Arkansas some 5 years previ-
ously. He was sentenced to serve 6 years, and, in fact, he
served 19 months in prison, though had been released on
parole by the time of the hearing herein.
(c) Dawan Al-Hakeem, aged 28 at the time of the
hearing herein, admitted that he had been convicted,
sometime during the period of 1966 to 1968, of the crime
of grand theft16 in Victorville, California, for which he
was sentenced to a term of 2 years' probation. He served
his term of probation without being picked up for violat-
ing its terms.
(d) Husnee Al-Hakeem, Dawan's younger brother, ad-
mitted that he too was convicted some 11 years previ-
ously, in Victorville, California, of the crime of possess-
ing three-fourths of an ounce of marijuana. He was a
minor at the time and was sentenced to a term of proba-
tion for 1 year. 17
(e) Michael Dudley, aged 21 at the time of the hear-
ing, admitted that when he was 11 years of age he was
convicted of the crime of possessing a marijuana ciga-
rette, causing him to be placed on probation. 18
I conclude that only incident (b), above, is possessed
of sufficient probative value, concerning the credibility
of Johnny Ward, to warrant its admission into evidence
pursuant to 609 of the Federal Rule of Evidence 609.19
's An objection to a question by Respondent's counsel about whether
he had even been arrested was sustained
1e Objections to the questions, "What did you steal?" and "The grand
theft charge arose out of what?" were sustained
17 Upon the motion of counsel for the General Counsel the testimony
concerning this matter was stricken.
18 Upon the motion of counsel for the General Counsel the testimony
concerning this matter was stricken.
'9 Rule 609 reads, in pertinent part, as follows:
IMPFACHMENT BY EVIDENCE OF CONVICTION OF CRIME
(a) General Rule.-For the purpose of attacking the credibility of a
witness, evidence that he has been convicted of a crime may be elic-
ited from him or established by public record during cross-examina-
Incidents (a), (c), (d), and (e) were each shown to have
occurred 10 or more years prior to the hearing herein, at
a time when each witness was a minor. At most, such
evidence shows convictions so remote in time from the
time when the witnesses testified herein that, even were
it not for the explicit prohibition of Rule 609 (b), I
would find them of little or no probative value in assess-
ing the witnesses' credibility. Additionally, the general
provision against admitting evidence of juvenile adjudi-
cations, as embodied in Rule 609(d), is based upon the
sound principle that juvenile adjudications are conducted
so informally, with "convictions" frequently based on a
diminished quantum of required proof, and otherwise de-
parting from accepted standards for criminal trials, that
such adjudications are considered to lack the precision
and general probative value of an ordinary criminal con-
viction. And, finally, in connection with the "convic-
tions" having to do with juvenile use of marijuana, while
I am aware of the Board's admonition against discussion
of society's evident changes of viewpoint toward such
usage, 2 0 I cannot fail to note that a number of courts
have held that a conviction of marijuana possession does
not involve dishonesty or false statement. See, generally,
Weinstein's Evidence, Section 609, and United States c.
McLister, 608 F.2d 785 (9th Cir. 1979), which involved
an appeal from the trial court's permission to cross-exam-
ine regarding a 9-year-old misdemeanor conviction for
possession of a single cigarette.2'
lieon hut only if the crime (I) was punishable hy death or imprison-
mcent in excess of one year under the las under which he was con-
victed, and the court determines that the probative value of admit-
ting this evidence outweighs its prejudicial effect to the defendant.
or (2) insvolved dishonest) or false statement, regardless of the pun-
ishment
(b) Time limit. Evidence of a conviction under this rule is not ad-
missible if a period of more than ten years has elasped since the date
of the conviction or of the release of the witness from the confine-
merit imposed for that conviction, whichever is the later date, unless
the court determines, in the interests, of justice, that the prohative
value of the conviction supported by specific facts and circumstances
substantially outweighs its prejudicial effect. However, evidence of a
conviction more than 10 years old as calculated herein, is not admis-
sible unless the proponent gives to the adverse party sufficient ad-
vance written notice of intent to use such evidence to provide the
adverse part) with a fair opportunity to contest the use of such evi-
dence.
(d) Juvenile adjudications.-Evidence of juvenile adjudications is
generally not admissible under this rule. The court may, however. in
a criminal case allow evidence of a juvenile adjudication of a witness
other than the accused if conviction of the offense would hbe admissi-
ble to attack the credibility of an adult and the court is satisfied that
admission in evidence is necessary for a fair determination of the
issue of guilt or innocence
20 See Ampco Metal Division of Ampco-Pittsburgh Corporation. 247
NLRB 660 (1980).
2i While the Respondent also argues in its brief that I precluded its
counsel from developing or probing into these matters at the hearing, I
find such argument unpersuasive. For the Respondent was not precluded
from making an offer of proof on these matters, even in question-and-
answer form Nor was the Respondent prevented from securing the
records of convictions in these cases to the extent they have been made
public Here the hearing was in adjournment from early April 1980 until
mid-June 1980, surely a period sufficient to enable the Respondent to
obtain and prepare its evidence relating to prior convictions
915
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Turning to the question of what to do with the evi-
dence underlying incident (b) I reach a somewhat differ-
ent result, and conclude that I may, and properly should,
bear Ward's conviction for armed robbery in mind when
assessing his credibility. Accordingly, I hereby reverse
my prior ruling at the hearing and accept the offer of
proof made by Respondent at the hearing. I am aware of
the dichotomy of authority on the question of what type
of criminal activity may be said to evidence a willing-
ness, even a proclivity, to speak untruthfully. See Wein-
stein's Evidence, Section 609-62, where a discussion of
this question led to the conclusion that, under Rule
609(a)(2), a crime involving dishonesty or false statement
is always admissible evidence for purposes of impeach-
ment, and that the Court has no discretionary standard
to apply in such situations. Its quotation, taken from then
Judge Burger's opinion in Gordon v. United States, 383
F.2d 936, 940 (D.C. Cir. 1967), cert. denied 390 U.S.
1029 (1968), aptly illustrates the problem:
In common human experience acts of deceit, fraud,
cheating, or stealing, for example, are universally
regarded as conduct which reflects adversely on a
man's honesty and integrity. Acts of violence on the
other hand, which may result from a short temper,
a combative nature, extreme provocation, or other
causes, generally have little or no direct bearing on
honest and veracity. A "rule of thumb" thus should
be that convictions which rest on dishonest conduct
relate to credibility whereas those of violent or as-
saultive crimes generally do not; traffic violations,
however serious, are in the same category.
In reaching this determination I have noted that
Ward's confessed criminal activity in robbing a store at
gunpoint is not the sort of offense which seems likely to
have resulted from a mere short-lived burst of impulsive
emotion. Instead, it seems more likely that it involved at
least a minimal amount of planning and cold, deliberate
execution, having little to do with such factors as ex-
treme provocation, a combative nature, or a short
temper. Consequently while I am aware of the differing
views of the courts regarding the effect upon credibility
of crimes involving the taking of property, 2 2 I find that
the crime involved here, armed robbery, does involve
elements of dishonesty.
However, having concluded that Ward's criminal con-
viction should be considered by me, I must also add that
I do not believe it to be a dispositive factor with regard
to his testimonial credibility. Instead, I believe that it is
simply one of several factors at my disposal in making
such credibility resolutions as may not be resolved by
resort to other, more objective or reliable, sources.
I. The Appropriate Unit and Demand for Recognition
As noted earlier herein, on September 19, 1979, the
Union sent a letter to the Respondent, claiming to repre-
sent a majority of the Respondent's production and
maintenance employees for the purposes of collective
bargaining. While the Respondent denied the allegations
22 See Weinstein's Evidence, Sec. 609-75
made in the consolidated complaint relating to the
demand, it appears clear that such a demand was, in fact,
made. For even the Respondent's evidence was to the
effect that the demand letter was received, though, so
the Respondent claims, not until September 22, 1979,
and, further, that its contents were not read by or known
to the Respondent's responsible officials until Monday,
September 24, 1979.
It thus appears that the parties are not in dispute con-
cerning this matter in any way important to the outcome
of this case. The demand for recognition was made and
became known to the Respondent on either of Septem-
ber 22 or 24, 1979.
Nor is there a substantial dispute regarding the de-
scription of the appropriate unit for collective bargain-
ing. The Union's demand letter cannot logically be read
as a demand for anything other than a unit which is pre-
sumptively appropriate under Section 9 of the Act; i.e.,
single plant, employerwide, production and maintenance.
Moreover, there is no evidence that the Respondent ever
disputed the appropriateness of such a unit. To the con-
trary, again as noted earlier, the Respondent stipulated
that such a unit was appropriate by its election agree-
ment of November 21, 1979. And, finally, the Respond-
ent, in effect, judicially admitted the appropriateness of
this unit when its answer to the consolidated complaints
was amended during the course of the hearing herein, to
admit paragraph 8 thereof.
Accordingly, I find and conclude that the Union made
a demand for collective bargaining on or about Septem-
ber 19, 1979, in an appropriate unit, and that since or or
about September 24, 1979, the Respondent has refused to
voluntarily honor the Union's demand. Instead, it is ap-
parent that the Respondent has viewed the election pro-
cedures of the Board as sufficient response to the Union.
J. The Union's Claimed Majority Status
As is also noted earlier, the Union's claim of majority
status rests upon attempts to demonstrate the validity of
21 authorization cards, for the Respondent has conceded,
and the evidence shows, that the appropriate unit includ-
ed 34 employees during the week of September 16-22,
1979, as well as at the time the Board's election was con-
ducted on November 21, 1979.
Thus, the question presented is whether the General
Counsel has demonstrated the validity of a majority, i.e.,
18 or more, of the authorization cards' signatures.
At the hearing the General Counsel proved the au-
thenticity of eight authorization cards by means of the
testimony of the signers, i.e., employees Johnny Ward,
Dawan Al-Hakeem, Husnee Al-Hakeem, Michael
Dudley, Erick Massey, Steve Taylor, Terry Underwood,
and Paul Benedict.
The remaining 12 authorization cards which were re-
ceived into evidence were authenticated on the basis of
testimony from employees who either witnessed the sign-
ing of such cards, or solicited and obtained signatures on
the cards under circumstances tending to indicate their
authenticity.
One other card, that of William Chambers, was of-
fered into evidence upon the testimony of Michael
916
SCOTT GLASS PRODUCTS, INC
Dudley, who claimed to have solicited and witnessed the
signing of the card. This offer was rejected, however,
due to the fact that doubts as to its authenticity were not
credibly explained by Dudley, who could not recall why
the card bore markings in three distinct colors. More-
over, unlike all other cards, Chambers' card bore no date
stamp from the Board's Regional Office on its reverse
side, and no adequate explanation for the discrepancy
was heard. Thus, I determined that Chambers' card had
not been adequately authenticated, and excluded it from
evidence unless authenticated by Chambers himself.
Chambers, however, was not called as a witness.
Of the 20 cards which were admitted into evidence the
Respondent now disputes the validity of three, the cards
of Diane Armstrong, Charley Kyle, and David Wilson.
In each case the Respondent's dispute is based on its
claim that, notwithstanding the established, even ad-
mitted, authenticity of each signature on the respective
cards, such signatures were obtained on the Union's
behalf only through the use of misrepresentations.
Husnee Al-Hakeem testified that he obtained the signa-
tures of Diane Armstrong and Charley Kyle on authori-
zation cards. He stated that he approached them in the
Respondent's parking lot, on or about September 14,
1979, in the evening. He testified that he told Armstrong
that the card was for the purpose of getting a union or-
ganized at the plant and inquired of her whether she
liked the way the Respondent treated her. He recalled
that she stated that she did not like the way she was
being treated, and took the card and read it for several
minutes. Then, after he cautioned her not to sign it if she
were not sincere, she signed the card and gave it back to
him. As he did with other cards he obtained, Husnee Al-
Hakeem then turned the card in to Johnny Ward by
leaving it in the glove compartment of Ward's auto-
mobile.
Husnee Al-Hakeem similarly testified that he obtained
the card of Charley Kyle, and that he did so in the same
parking lot where he had obtained Armstrong's card
some 10 minutes previously. He testified that he ob-
served Kyle fill out and sign the card after he had said
much the same things regarding the card's purpose as he
had said to Armstrong.
Armstrong and Kyle were witnesses for the Respond-
ent. Both testified that it was not Husnee Al-Hakeem
who solicited and obtained their signatures to authoriza-
tion cards, but Johnny Ward.
Armstrong testified that Ward approached her inside
the plant, telling her he wanted her to sign a card to
help get a union to come into the plant. She testified that
they went outside to the Respondent's parking lot at the
next break period, where Ward gave her a card to sign
and assured her that the card was to show her willing-
ness to attend a meeting where she could learn more
about the Union. Upon cross-examination Armstrong ad-
mitted that she filled the card out after reading the large
print on it, and that she noted its language regarding ap-
plication for membership in the Union. But, she repeated,
Ward assured her those words meant nothing. She also
admitted that Husnee Al-Hakeem was there in the park-
ing lot, along with Ward, Kyle, and Terry Underwood,
and that Kyle signed his card at the same time she signed
hers.
Kyle testified that he signed the card in response to
Ward's assurances that it would merely indicate his inter-
est in obtaining further information about the Union.
However, when asked what Ward actually said Kyle
could only respond that "Well, he didn't say nothing
specific about it.... About the union or the card either
as a matter of fact." I note further that it was twice nec-
essary to advise the Respondent's counsel of the adverse
effects that leading (whether by the wording of the ques-
tion or the tone and inflection used by the questioner)
would have on Kyle's testimony.
Based on careful consideration of the demeanor of
these witnesses, and my comparison of their testimony
about their meeting in the parking lot, during which
Kyle and Armstrong admittedly signed cards for some-
body, I have determined to credit Husnee Al-Hakeem's
testimony over that of Armstrong and Kyle. Both Kyle
and Armstrong evinced eagerness to "recite," though
each also seemed uncomfortable in doing so. Husnee Al-
Hakeem's testimony here, as on other points, seemed
steady, assured, and truthful. And, as shown, it ultimate-
ly became clear that the versions of Kyle and Armstrong
did not coincide as to what Ward or any other soliciter
on behalf of the Union said to them.
I find and conclude that no credible evidence of mis-
representations to either Kyle or Armstrong has been
proven.
The other card challenged by the Respondent is that
of David Wilson. Dudley testified that the secured Wil-
son's signature on the card at Wilson's home on Septem-
ber 17, 1979, in the presence of Wilson's wife and
Johnny Ward. Dudley testified that he explained to
Wilson that the card was "just to show that he wanted
the Teamsters union to represent him." Dudley testified
that Wilson sat down, filled out the card after reading it,
and signed it.
Wilson, on the other hand, testified that it was Ward,
not Dudley, who was doing the explaining and persuad-
ing at his house. And he claimed that Ward told him and
his wife that the card would do no more than show his
interest in coming to meetings to learn more about the
Union. As noted earlier, Wilson is not to be credited.
The scenario painted by him, of a cautious, skeptical
wife taking him into an adjoining room to discuss the
effect of his signature, yet with neither of them ever
reading the plain unambiguous language on the fact of
the card, seems most improbable. When asked for details
about Ward's statements to him Wilson initially found
himself unable to recall more than Ward's assurances
that the signature on the card would not make him a
member and would not be used except to show Wilson's
interest in a meeting. When asked why he did not simply
tell Ward that, if the purpose of the card was in fact so
limited he would sign only a card which correctly stated
the purpose, Wilson expansively testified that he had
asked Ward about "another way of doing this," with
Ward responding, "No. [type of card] is all I have."
Considering the fact that Wilson had already testified at
great length about this matter, and that no such claim
917
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was ever advanced by him until its possibility was sug-
gested in a question put to him by me, I conclude that
Wilson's testimony is remarkably imaginative. Instead, I
believe that Wilson simply had second thoughts follow-
ing his admitted interest in securing more money and
benefits, such as dental insurance.
I am also convinced, upon consideration of the evi-
dence concerning the manner in which authorization
cards were solicited in general, as well as the specific
evidence relating to Armstrong, Kyle, and Wilson, that
the signatures on the cards were put there with adequate
knowledge of the consequences, and not as a result of
coercion or misrepresentation.
In a recent case on employee was told by the soliciter
of an authorization card that the card was to "get a
union representative to come down and talk to employ-
ees" and that it did not mean he was joining the Union;
another employee was told that the soliciter was trying
to get enough cards to get an election; and still another
employee was told that "if we can get enough cards
signed, we can get a union representative here to explain
the Union to us, and maybe we can get a vote on it."
The Board held that the cards were valid. Jeffrey Manu-
facturing Division, Dresser Industries, Inc., 248 NLRB 33
(1980). In that case the evidence was to the effect that
the employees read the words on the face of the cards.
In this case I find that Armstrong, Kyle, and Wilson
each read the larger print at the top of the card, and I
find it most unlikely that they each did not also read the
remainder, or, at least, know of the purpose and wording
of such cards by means of prior discussions with the soli-
citers or other employees. I believe, contrary to the Re-
spondent's position, that the evidence is both insufficient
and incredible to establish that each did not intend when
signing the cards that the plain meaning of the words
thereon would govern the use of the cards; i.e., that the
Union was to be their voluntary and designated collec-
tive-bargaining representative. Cf. L'Eggs Products Incor-
porated, 236 NLRB 354, 415-418 (1978), enfd. as modi-
fied on other grounds and remanded 619 F.2d 1337 (9th
Cir. 1980); Amber Delivery Service, Inc., 250 NLRB 63
(1980); Keystone Pretzel Bakery, Inc., 242 NLRB 492
(1979). That each later had second thoughts and cold
feet cannot detract from the fact that the Union did
attain majority status.
Accordingly, I find and conclude that the General
Counsel has proven that a majority, 20 of the 34 mem-
bers of the appropriate unit, designated and selected the
Union as their collective-bargaining representative.
K. Summary and Conclusions
In early September 1979 several employees went to
the Respondent's chief official to seek redress of griev-
ances, including their perceived need for a pay raise.
Their efforts resulted in an immediate threat to fire their
primary spokesman, as well as the explanation that no
pay raise was then possible.
So, a couple of weeks later the employees again
sought help. This time, however, they turned to a union.
They began actively campaigning for the support of
fellow employees.
Within 2 or 3 days thereafter a supervisor threatened
an employee with more onerous working conditions.
Yet another day or two later, on September 19, 1979, a
supervisor created the impression of surveillance of em-
ployees' union activities, threatened employees with the
possibility of the plant's closure, and threatened employ-
ees with the loss of their jobs.
The next day the Respondent's chief official called an
extraordinary meeting and, reversing his position of only
2 to 3 weeks' standing, granted an extraordinary pay
raise to each employee. During this meeting he solicited
grievances from employees while, at the same time, he
threatened that the employees' union activities would be
futile.
Ten days later the pay raise became effective and
began showing up in employees' paychecks in early Oc-
tober 1979.
Also in early October a supervisor imposed a rule
against discussion of the pay raise upon an employee, 2 3
as well as, in a separate incident, interrogating the em-
ployee about union activities of employees. 2 4
The evidence shows a clear pattern of illegal conduct
which began almost as soon as the organizational activi-
ties of employees. The illegal conduct was carried out by
both high and low company officials, and it had a direct
impact upon every member of the unit eligible to vote. 25
Consequently the Respondent's failure to meet and bar-
gain with the Union in response to the Union's letter of
2s Absent a valid rule or special circumstances, employees are protect-
ed in such discussions. Hambre Hombre Enterprises. Inc., d/b/a Panchito's,
228 NLRB 136 (1977). That such restrictions are illegal has long since
been settled. "Early in the history of the administration of the Act the
Board recognized the importance of freedom of communication to the
free exercise of organization rights." Central Hardware Company v
.VL.R.B., 407 U.S. 539, 543 (1972) "Direct personal contact is the most
truly effective means of communicating not only the option of collective
bargaining, but the most compelling reasons for exercising that option"
Belcher Towing Company, 246 NLRB 666, 667 (1981).
"No restriction may be placed on the employees' right to discuss self-
organization among themselves, unless the employer can demonstrate that
a restriction is necessary to maintain production or discipline." NL.R.B.
v. Babcock & Wilcox Co., 351 U.S. 105, 113 (1956). The facility where
employees work has long been recognized as a "place uniquely appropri-
ate" for exercise of that right of employees. Republic Aviation Corporation
v. N.L.R.B., 324 U.S. 793, 801, fn. 6 (1945)
24 The Respondent contends that Brown's questioning of Dawan Al-
Hakeem was "non-threatening." However, this contention misses the
point. Interrogation is coercive whether couched in hostile or casual
terms. Quemetco, Inc., 223 NLRB 470 (1976). An interrogation of an em-
ployee concerning union activity can violate the Act even in the absence
of any antiunion bias or coercive intent by the employer. Such interroga-
tion is unlawful as long as the conduct may reasonably be said to inter-
fere with the free exercise of employee rights under the Act. Dover
Garage 11, 237 NLRB 1015 (1978), enforcement denied 607 F.2d 998 (2d
Cir. 1979); Hanes Hosiery, Inc., 219 NLRB 338 (1975). Together We Stand
Women's Guild Day Care Center, 256 NLRB 393 (1981); PPG Industries,
Inc., 251 NLRB 1146 (1980).
25 An employer's unlawful conduct is magnified when directed at a
small unit of employees. Armcor Industries. Inc., 227 NLRB 1543, 1544
(1977); Amber Delivery Service. Inc., supra at 66. Moreover, such serious
threats as threats of plant closure, loss of jobs, or the imposition of more
onerous working conditions are presumed to have widespread impact
upon employees and it is the employer's burden to show that such threats
remained isolated by showing that they were not discussed among other
employees besides the employees directly threatened. General Stencils
Inc., 195 NLRB 1109 (1972), enforcement denied on other grounds 472
F.2d 170 (2d Cir. 1972). The employer has not met that burden in this
case.
918
SCOTT GLASS PRODUCTS, INC.
September 19, 1979, constituted a violation of Section
8(a)(5) of the Act. An employer may not claim immunity
from Section 8(a)(5) of the Act based on its claimed reli-
ance upon the Board's election procedures and, at the
same time, embark upon a course of unfair labor prac-
tices. Montgomery Ward & Co.. Incorporated, 253 NLRB
196 (1980). As the Respondent's unfair labor practices
had already begun by the date on which it received the
Union's demand for recognition and bargaining, I find
that its obligation to bargain arose upon receipt of the
Union's demand letter, on September 24, 1979. L'Eggs
Products Incorporated, supra, Ferland Management Com-
pany, 233 NLRB 467 (1977).
IV. THE REMEDY
The Respondent's unfair labor practices are serious in
nature. They began almost as soon as the organization
activities and continued well past the Union's demand
for recognition. Its course of conduct, which included a
promise of and a grant of an extraordinarily large wage
increase, solicitation of and implied promises to remedy
grievances, and threats of futility, plant closure, or job
loss, was designed to impress upon employees the fact
that they did not need a union to obtain satisfaction of
their demands.
Such circumstances led the Board in K & K Gourmet
Meats, Inc., 245 NLRB 1331, 1332 (1979), enforcement
denied in relevant part 640 F.2d 460 (3d Cir. 1981), to
state that:
Under the principles set forth in .VL.R.B. v.
Gissel Packing Co., Inc., 395 U.S. 575 (1969), a bar-
gaining order is appropriate where a union's major-
ity is established by cards and the nature and extent
of the employer's unfair labor practices render un-
likely a free choice by the employees in our elec-
tion. As previously set forth, Respondent's unfair
labor practices were clearly designed to undermine
the Union's majority status. Here, the promises of a
wage increase, increased benefits, and new ap-
proaches to resolve employee grievances, coupled
with the threat that the organizational campaign
would be futile, result in giving the employees
much if not all of what they were seeking through
union representation.
In Honolulu Sporting Goods Co.. Ltd. a subsidiary
of Zale Corporation, 239 NLRB 1277 (1979), the
Board quoted with approval the following state-
ment from Tower Enterprises, Inc., d/b/a Tower
Records, 182 NLRB 382, 387 (1970), which is di-
rectly applicable:
It is difficult to conceive of conduct more likely
to convince employees that with an important
part of what they were seeking in hand union
representation might no longer be needed. An
employer may have the right to persuade the em-
ployees that representation is not in their best in-
terests, but it does not have the right to threaten
them or confer benefits on them which are de-
signed to influence the employees against choos-
ing a representative. When, as here, an employer
does so, free choice in a subsequent election be-
comes a matter of speculation, so long as the ef-
fects of the interference remain unremedied.
In my opinion the Respondent's unfair labor practices
in this case have so impaired the employees' free choice,
in any new election which might be ordered, that it is
only by speculation that one can envision their un-
coerced selection or rejection of the Union. As stated in
Grandee Beer Distributors. Inc.. supra, 247 NLRB 1280,
1281:
. . .the Board has repeatedly expressed concern
about the difficulty of eradicating the lingering ef-
fects of unlawful promises and grants of wage in-
creases on union organizational campaigns. We
must reiterate that concern with respect to the
promise and subsequent grant of a wage increase for
unit employees during the Union's organization
campaign in this case.
It is axiomatic that the question of whether or not to
grant a bargaining order is not to be answered by resort
to mechanical means. Nonetheless, in this case, my con-
sideration of factors such as the nature of the unfair
labor practice found herein, the swiftness or suddenness
which they were committed upon the Respondent's gain-
ing knowledge of the organizational campaign, the dura-
tion or period of time over which such unfair labor prac-
tices were committed, the number or percentage of the
employee complement affected by the unfair labor prac-
tices, the level of the supervision which committed them,
and the likelihood of their repetition should a rerun elec-
tion be directed-all lead me to conclude that the possi-
bility of erasing the effects of past practices and of ensur-
ing a fair rerun election by the use of traditional reme-
dies, though present, is slight. Consequently, employee
sentiment, once expressed through authorization cards
would, on balance, be better protected by a bargaining
order. .V.L.R.B. v. Gissel Packing Co.. Inc., 395 U.S. 575,
614-615 (1969). 1 so find and conclude.
V. THE OBJECTIONS TO CONDUCT OF ELECTION
The Union's objections to the election allege matters
which either coincide with or are similar to the unfair
labor practice allegations of the consolidated complaints.
Yet, the Respondent contends that evidence of conduct
pre-dating the filing of the petition for an election herein
was improperly admitted at the hearing, and can serve as
no basis for overturning the election. Citing The Ideal
Electric and Manufacturing Company, 134 NLRB 1275
(1961), the Respondent claims that, in determining
whether the election should be overturned, I may not
consider any incidents which occurred before the peti-
tion herein was filed on September 21, 1979, the begin-
ning of the "critical period" during which the Board
seeks to ensure the preservation of laboratory conditions
preceding representation elections.
I disagree. As I have found previously herein, the Re-
spondent, through Supervisor Brown, violated Section
8(a)(l) of the Act in early October 1979 by ordering
Dawan Al-Hakeem to stop talking about the raise which
919
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been announced the day before the petition was
filed, to become effective well within the critical period.
Indeed, at the time that Brown talked to Dawan Al-
Hakeem in early October the employees had not yet re-
ceived any additional moneys in their paychecks. I have
also found that the Respondent, through Brown, again
violated Section 8(a)(l) of the Act a few days later, by
interrogating Dawan Al-Hakeem about the union activi-
ties of himself and other employees.
Thus, it is evident that the substantial and across-the-
board raise, 26 which was effective and was first paid
well within the critical period, was clearly related to the
violations which occurred within the critical period. As
a result, I believe that I must consider instances of pre-
petition conduct which adds meaning and dimension to
such related post-petition conduct. See Dresser Industries.
Inc., 242 NLRB 74 (1979), and cases cited therein. It fol-
lows, based upon the post-petition conduct set out above,
plus the pre-petition conduct of announcing an across-
the-board wage increase, that the Respondent interfered
with the employees' freedom of choice in the election,
and that the election's results should be set aside. I so
recommend. However, due to the further finding herein
that a bargaining order is necessary to remedy the Re-
spondent's violations of the Act I make no provision for
a rerun election herein.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By threatening to discharge employees for engaging
in protected concerted or union activities; by conveying
to employees the thought that their demands could best
be met through direct dealing with the Respondent and
that union representation would be rendered ineffectual
or futile; by soliciting and impliedly promising to remedy
employees' grievances without the intervention of a
union; by threatening to close its plant and thereby put
all employees out of work; by promising and granting an
extraordinary wage increase to all employees in order to
induce them to withdraw their support for the Union; by
interrogating employees about their own and others'
union activities, sympathies, and leanings; by ordering
employees to refrain from discussing matters such as
wage increases; by threatening to impose more onerous
working conditions if employees selected the Union as
their representative for purposes of collective bargaining;
and by creating the impression that employees' union ac-
tivities were being kept under surveillance by the Re-
spondent, the Respondent has interfered with, restrained,
and coerced employees in violation of Section 8(a)(1) of
the Act.
4. A unit appropriate for collective bargaining is:
26 The actual grant and payment of the raise should properly be con-
sidered as a distinct violation, related to, but not merged with the viola-
tion of announcing or promising the raise. Cf. Baker Brush Co.. Inc., 233
NLRB 561 (1977).
All regular full-time and part-time production and
maintenance employees employed at the Respond-
ent's facility located at Pacola, Oklahoma; excluding
all other employees, office clerical employees, sales
employees, professional employees, guards and su-
pervisors as defined in the Act.
5. At all times material since September 24, 1979,
Chauffeurs, Teamsters and Helpers, Local Union No.
516, has been the exclusive collective-bargaining repre-
sentative of the employees in the above-described unit
within the meaning of Section 9(a) of the Act.
6. By failing and refusing on and after September 24,
1979, to recognized and bargain with Chauffeurs, Team-
sters and Helpers, Local Union No. 516, as the repre-
sentative of the employees in the above-described unit,
the Respondent violated Section 8(a)(5) and (1) of the
Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
8. The Respondent did not violate the Act in any
manner other than specified above.
ORDER 2 7
The Respondent, Scott Glass Products, Inc., Pacola,
Oklahoma, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Threatening to discharge employees; creating the
impression of surveillance of employees' union activities;
threatening employees with the imposition of more oner-
ous working conditions; interrogating employees regard-
ing their own and others' union activities, sympathies, or
leanings; threatening to make employees' union activities
ineffectual or futile; soliciting grievances and impliedly
promising to remedy them without the intervention of a
union; threatening to close the plant and put all employ-
ees out of work; promising and granting a wage increase;
and ordering employees to refrain from discussing mat-
ters such as wage increases.
(b) Refusing to recognize and bargain collectively with
Chauffeurs, Teamsters and Helpers, Local Union No.
516, as the exclusive bargaining representative of the em-
ployees in the following unit: All regular full-time and
part-time production and maintenance employees em-
ployed at the Scott Glass Products, Inc., facility located
at Pacola, Oklahoma; excluding all other employees,
office clerical employees, sales employees, guards and su-
pervisors as defined in the Act.
(c) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their rights
under Section 7 of the Act.2 8
27 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, adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shal be deemed waived for all purposes.
28 I provide for a broad order herein in view of the broad variety of
unfair labor practices committed by the Respondent, which, in my opin-
ion, demonstrate the Respondent's disregard for the statutory protections
afforded employees by the Act. In such circumstances a broad order is
warranted. See Hickmort Foods Inc., 242 NLRB 1357 (1979).
920
SCOTT GLASS PRODUCTS, INC.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, recognize and bargain, effective as
to September 24, 1979, with Chauffeurs, Teamsters and
Helpers, Local Union No. 516, as the collective-bargain-
ing representative of the employees in the above-de-
scribed appropriate unit respecting rates of pay, wages,
hours, or other terms and conditions of employment and,
if an understanding is reached, embody such understand-
ing in a signed agreement.
(b) Post at its Pacola, Oklahoma, facility copies of the
attached notice marked "Appendix." 29 Copies of said
notice, on forms provided by the Regional Director for
29 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
Region 16, after being duly signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. 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 16, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
1i' is FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges violation of the
Act not found herein. It is further ordered that all out-
standing motions inconsistent with this recommended
Order are hereby denied.
IT IS FURHTHER ORI)ERED that the election of Novem-
ber 21, 1979, be set aside.
921