Custom Bent Glass Co., 373 (1991)

Docket Number:06-CA-21537-1
 
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Custom Bent Glass Company, Custom Glass Corporation, Saxonburg Industries, and Custom Resources Company and Aluminum, Brick and Glass Workers International Union, AFL- CIO-CLC. Cases 6-CA-21537-1 through 6

August 27, 1991

DECISION AND ORDER

BY CHAIRMAN STEPHENS AND MEMBERS

CRACRAFT AND DEVANEY

On January 12, 1990, Administrative Law Judge Walter H. Maloney issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel and the Charging Party also filed answering briefs.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions1 and briefs and has decided to affirm the judge's rulings,2 findings,3 and

conclusions4 and to adopt the recommended Order as modified.5

  1. We agree with the judge's finding that, by January 12, 1989, the Union had obtained authorization cards executed by 27 of the Respondent's employees who were members of the production and maintenance unit. In agreeing that this represented a card majority in that unit, we find that the unit consists of 53 employees, including 6 persons whom the judge had found should not be included.6 As explained below, we reverse the judge's findings that Scott Geibel, Thomas Higgins, and Alfred M. Ferrari were supervisors, that Greg Rearick and John Whitehair had abandoned their employment with the Respondent following their December 30, 1988 layoff, and that Donald Freeman, who was drawing workmen's compensation, was not in the unit because he had no reasonable expectation that he would return to work in the near future.

    Regarding the above individuals whom the judge found were excluded as supervisors, the testimony of Geibel, Higgins, and Ferrari establishes that they are classified as group leaders,7 and have no authority to hire, fire, schedule, reward, discipline or evaluate employees and that they spend at least 95 percent of their time doing bargaining unit work. The testimony of

    1 No exceptions were taken to the following: the judge's inclusion of Ron George in the unit; his exclusion of Fred Pagliari from the unit; his express dismissal of the allegation that Pagliari's discharge was unlawful and the allegation that the Respondent unlawfully promised pay raises in return for support; and his implicit dismissal of complaint allegations that the Respondent violated Sec. 8(a)(1) by stating that the union does not care about the workers and only cares about collecting dues, and that there are ways of getting rid of employees without getting into trouble, and by reminding employees of its warning against union activity given during job interviews.

    2 In affirming the judge's granting of the General Counsel's motion to amend the complaint to include Custom Resources as a named Respondent, we find no merit in the Respondent's exception that Custom Resources had inadequate notice of this amendment because it was not named in the complaint prior to the hearing and was not served with any of the charges or the complaint. In view of the fact that Custom Resources is an unincorporated sole proprietorship of Thomas Rice, who was present at the hearing when the motion to amend was made, we find that it is clear that Custom Resources, through Rice, had actual notice. See Certified Building Products v. NLRB, 528

    F.2d 968 (9th Cir. 1976), enfg. 208 NLRB 515 (1974). In that case the sole stockholder of a corporation was found to be the alter ego of his corporation. Service on the corporation was found to be the same as service on him. Furthermore, Custom Resources was not prejudiced by the timing of this notice. When the motion was made, the judge stated that he would take it under advisement and rule on it in his decision. This provided the Respondent and Custom Resources adequate time within which to prepare a defense and perfect their arguments; they made no request for additional time. Therefore, we affirm the judge's ruling.

    3 The Respondent has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findigs.

    In affirming certain of the judge's conclusions, we disavow as unnecessary to the resolution of the respective issues certain findings made by the judge. Specifically, we place no reliance on his statement in fn. 10 of his decision that the Respondent committed ''more than the average amount of perjury.'' Further, because we sustain the judge's finding that Samosky is a supervisor, and his recommendation that Samosky be excluded from the appropriate bar gaining unit on that ground, we find it unnecessary to pass on whether Samosky's participation in the Respondent's antiunion campaign created a conflict of interest between him and unit employees.

    We correct some inadvertent errors of the judge that do not affect the validity of his decision. Fn. 1 of the judge's decision should state that the first additional charge was filed January 18, not January 12, 1989. In his decision, the judge misidentified Virgil Cousins as Gerald Cousins. In the section on

    James A. Wright's discharge, the decision should state at Wright, not Bowser, made the statement that the Union would ''get'' employees who refused to sign cards. The section on Charles Colton's discharge should read that Colton, not Rice, was laid off on January 20. Finally, in the section of the judge's decision on the Union's majority status, the subsection on Tim Singer's inclusion in the unit misidentifies him in one instance as Timmy Rice.

    4 We find it unnecessary to pass on the judge's finding that the Respond-ent's observation of Union Respresentative Shinn's passing out union literature at the Kittanning plant gate constituted unlawful surveillance, because such a finding would be cumulative.

    5 The judge's recommended Order and notice are modified to conform to the findings of unfair labor practices.

    6 Member Cracraft, concurring, finds the record insufficient to establish the Union's majority status prior to January 23, 1989, which accordingly is the date she would attach to the Board's remedial bargaining order. Although she agrees with our conclusion that former employees Jonathan Sheehan and Randy Shields had abandoned their employment shortly after they were laid off, she would date the abandonment no earlier than January 23, in disagreement with the judge's finding that abandonment had occurred by January 12. Although we agree with our colleague's observation that Sheehan's and Shields' failure to inquire about recall by the end of the maximum projected period of layoff further evidences their abandonment of employment, we find that the record establishes abandonment by the earlier date. As the judge found, both employees had been laid off on December 30, 1988, after working for the Respondent for less than a month as general laborers. During that time they lived in a rented room. Rice stated that there was an attempt to contact them at the end of January, but they had moved and had not left any forwarding address. There is no indication that their departure occurred in the latter, as opposed to the earlier, part of January. Rice testified that he thought they had returned to West Virginia, that he did not know how to get in touch with them, and that there was no attempt to get in touch on their part. In light of these facts, we conclude that in all probability they abandoned their employment shortly after being laid off on December 30, if not on that date, and certainly before January 12. We find that the record warrants the inference that their attachment to his geographic locality and employment with the Respondent was transient and did not long survive their being placed on layoff status.

    7 There is no basis for the judge's conclusion that the term ''group leader'' was coined by the Respondent for the purposes of this proceeding. The record shows that the term predated this proceeding and that the Respondent has not sought to exclude employees from the unit on the basis of their status as a group leader. On the contrary, many of the Respondent's 18 group leaders were stipulated to be included in the unit.

    Geibel and Higgins indicates that they have no authority to grant employees time off, and Ferrari, who leads a crew of up to three employees in the Renfrew plant on the 11 p.m. to 7 a.m. shift, testified that only in an emergency would he allow employees to go home without first checking with Rice or Plant Manager Cotton. Ferrari further testified that he would generally call Rice or Cotton if his crew had an employee leave early in order to see if it was necessary to attempt to call in a replacement; he would act alone only if he were unable to contact Rice or Cotton. There is no evidence that he had the authority to require employees to work outside of their scheduled hours. Geibel, who in January 1989 worked on a shift which started at 7 a.m. in the Renfrew plant, testified that if a scheduled employee did not come to work he would call Rice or Cotton before calling another employee to come in to work. We find that to the extent that these three persons had any involvement in employees' leaving work early or being called in outside of their scheduled hours, their close communication with Rice or Cotton in these matters precludes a finding that they exercised supervisory responsibility in this regard. The remaining distinctive aspects of their employment with Respondent, i.e...

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