Allis Chalmers Corp.

National Labor Relations Board - Board Decisions

Jun 18, 1976

224 N.L.R.B. 1199 (N.L.R.B. 1976)

ALLIS CHALMERS CORPORATION
Allis Chalmers Corporation and International Union,
United Automobile, Aerospace and Agricultural
Workers of America, UAW Cases 15-CA-5438,
15-CA-5532, 15-CA-5554, 15-CA-5673, and 15-
CA-5732
June 18, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On January 20, 1976, Administrative Law Judge
Frank H Itkin issued the attached Decision in this
proceeding Thereafter, Respondent, the General
Counsel, and the Charging Party filed exceptions and
supporting briefs, and Respondent filed a reply to
the exceptions filed by the General Counsel and the
Charging Party i
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended 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, Allis Chalmers Corpora-
tion, East Jackson, Mississippi, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order
IT IS FURTHERED ORDERED that the consolidated
complaints in this proceeding be, and they hereby
are, dismissed insofar as they allege unfair labor
practices not found herein
i Respondent s request for oral argument is denied as the record includ
ing the exceptions and briefs adequately presents the issues and the posi
tions of the parties
2 We agree with the Administrative Law Judge that the no solicitation
rule in issue is unlawful Members Fanning and Jenkins find the rule to be
unlawful not only for the reasons expressed by the Administrative Law
Judge which they recognize to be correct application of Board precedent
but also for the reasons set forth by them in their dissent in Essex Interna
tional Inc 211 NLRB 749 (1974) and by Member Jenkins in his dissent in
House of Mosaics Inc 215 NLRB 704 (1974)
DECISION
1199
FRANK H ITK1N, Administrative Law Judge The above
consolidated cases were heard before me in Jackson, Mis-
sissippi, on April 30, May 1, 2, 12, and 13, September 30,
and October 1 and 2, 1975 An unfair labor practice com-
plaint issued in Case 15-CA-5438 on December 17, 1974
This complaint is based on an unfair labor practice charge
filed on September 16, 1974 Thereafter, an order consoli-
dating cases, a consolidated complaint and notice of hear-
ing issued in Cases 15-CA-5438, 15-CA-5532, and 15-
CA-5554 on January 24, 1975 This complaint, as amended
at the hearing, is based on an unfair labor practice charge
filed in Case 15-CA-5532 on November 27, 1974, and an
unfair labor practice charge filed in Case 15-CA-5554 on
January 2, 1975 Cases 15-CA-5438, 15-CA-5532, and 15-
CA-5554 were consolidated With respect to Case 15-CA-
5438, on January 3, 1975, Respondent filed with the Board
a Motion for Summary Judgment, asserting that the charge
in that proceeding does not support the allegations of the
complaint, the complaint is the result of improper solicita-
tion by Board personnel, a previously withdrawn charge
was improperly reinstated, and a concurrent representa-
tion proceeding (Case 15-RC-5364) is a bar to the com-
plaint On March 28, 1975, the Board denied Respondent's
Motion for Summary Judgment, noting that "the issues
raised in the complaint and motion for summary judgment
and opposition thereto can best be resolved in connection
with a hearing before an administrative law judge after
issue has been domed " Respondent renewed this mo-
tion, styled as a motion to dismiss the complaint in Case
15-CA-5438, at the hearing
Subsequently, on June 27, 1975, an unfair labor practice
complaint issued in Case 15-CA-5673 This complaint is
based upon an unfair labor practice charge filed on April
29, 1975 On July 28, 1975, an order was entered granting
General Counsel's motion to reopen the hearing in Cases
15-CA-5438, 15-CA-5532, and 15-CA-5554, to consoli-
date Case 15-CA-5673 with the above cases, and to sched-
ule a further hearing Thereafter, on August 20, 1975, an
unfair labor practice complaint issued Case 15-CA-5732
This complaint is based upon an unfair labor practice
charge filed on June 26, 1975 On September 10, 1975, an
order was entered granting General Counsel's further mo-
tion to reopen the hearing in the above cases, to consoli-
date Case 15-CA-5732 with the previously consolidated
cases, and to schedule a further hearing On September 18,
1975, Respondent moved to dismiss the complaint in Case
15-CA-5673, asserting, inter alia, that the specific unfair
labor practice charge in that proceeding does not support
the allegations of the complaint and that the proceeding
has been improperly initiated by Board personnel Also, on
September 18, 1975, Respondent moved to dismiss certain
allegations of the complaint in Case 15-CA-5732, assert-
ing, inter alia, that there is no relationship between the
allegations of paragraph 7 of the complaint and the charge
in that proceeding and that the proceeding has been im-
properly initiated by Board personnel
The principal issues raised in these consolidated cases
are whether Respondent Company violated Section 8(a)(1),
224 NLRB No 158
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3), and (4) of the National Labor Relations Act by main-
taining in effect and enforcing a no-solicitation rule pro-
hibiting employees from soliciting on company property
without written permission from management, by reclassi-
fying and granting a wage increase to certain employees
about April 26, 1974, by engaging in interrogation, pro-
scribed solicitation, threats, and the creation of the impres-
sion of surveillance about April 26, 1974, and on other
dates in the same month, by engaging in interrogation and
threats about May 10, 1974, by discharging employee Ran-
dall Lee Cook about November 15, 1974, by granting em-
ployees 2 additional holidays about November 25, 1974,
by reclassifying and granting a wage increase to certain
employees about December 13, 1974, by threatening em-
ployees with loss of benefits about December 20, 1974, by
granting a 5-percent wage increase to employees and an-
nouncing that the Company would pay insurance premi-
ums for dependents of employees about January 17, 1) 75,
by engaging in proscribed solicitation, interrogation, and
threats on certain dates during February and March 1975,
and by granting employees a 30-cent hourly wage increase
and an increase in workmen's compensation benefits about
June 25, 1975 Respondent denies that it engaged in the
unfair labor practices as alleged In addition, as noted
above, Respondent argues that the complaints should be
dismissed in cases 15-CA-5438, 15-CA-5673, and 15-CA-
5732 as defective and improper
Upon the entire record before me, including my observa-
tion of the witnesses, and after due consideration of the
briefs by counsel, I make the following findings of fact and
conclusions of law
FINDINGS OF FACT
I INTRODUCTION
UAW, 86 ballots were cast against the participating labor
organizations, and 3 ballots were void
Since a majority of the valid ballots were not cast for any
of the participating labor organizations, a runoff election
was conducted on May 16, 1974 There were approximate-
ly 185 eligible voters, 180 ballots were cast, 87 ballots were
cast for the Charging Party UAW, 91 ballots were cast
against the labor organization, and two ballots were chal-
lenged Thereafter, Charging Party UAW filed timely ob-
jections to conduct affecting the results of the runoff elec-
tion The Regional Director caused an investigation of the
objections to be made and, on July 5, 1974, issued an order
directing that a hearing be held to resolve issues raised in
certain objections A hearing was held on July 25, 26, and
31 and August 1, 1974 On October 18, 1974, the Hearing
Officer issued his report on the objections and recommen-
dations to the Board The Hearing Officer recommended
that certain objections be sustained and that others be
overruled On February 7, 1975, the Board adopted in part
the Hearing Officer's findings and recommendations, di-
recting that the first runoff election be set aside and that a
second runoff election be held
A second runoff election was conducted, as directed by
the Board, on March 21, 1975 There were then approxi-
mately 303 eligible voters, 299 ballots were cast, 171 bal-
lots were for Charging Party UAW, 127 ballots were
against the labor organization, and I ballot was chal-
lenged The Company filed timely objections to conduct
affecting the results of the second runoff election The Re-
gional Director caused an investigation of the objections
to be made and, on August 25, 1975, overruled the
Company's objections These proceedings are now pending
before the Board
The evidence pertaining to the Company's conduct dur
ing the organizational effort is summarized below
Respondent Company, a Delaware corporation, has of-
fices and plant facilities in East Jackson, Mississippi, where
it is engaged in the manufacture of electrical equipment
During the past year, Respondent Company sold, shipped,
and furnished services and goods valued in excess of
$50,000 directly to places outside of Mississippi I find and
conclude that Respondent Company is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act Further, I find and conclude that Charging
Party Union (UAW or the Union) is a labor organization
within the meaning of Section 2(5) of the Act
On March 13, 1974, International Union of Electrical,
Radio and Machine Workers, AFL-CIO-CLC (IUE), filed
a representation petition with the Board in Case 15-RC-
5364, seeking to represent a unit of the Company's hourly
paid production and maintenance employees at its East
Jackson facility Charging Party UAW and International
Brotherhood of Electrical Workers, AFL-CIO-CLC
(IBEW), intervened On April 4, 1974, the Board's Region-
al Director for Region 15 approved a stipulation of the
parties for certification upon a consent election An elec-
tion was conducted by secret ballot on April 25, 1974
There were then approximately 186 eligible voters 174 bal
lots were cast, 5 ballots were cast for IUE, no ballots were
cast for IBEW, 83 ballots were cast for Charging Party
II THE SEQUENCE OF EVENTS
A The Company's No Solicitation Rules
It was stipulated that the Company posted at its plant,
from about November 26, 1973, until a date subsequent to
the first runoff election on May 16, 1974, the following
no-solicitation rule
Solicitation on company property is prohibited with-
out prior written approval of the employee and com-
munity relations manager or his designate
It was further stipulated that the Company also posted at
its plant, shortly after the May 16 election, the following
no-solicitation rule
Solicitation on company property is prohibited during
working time without prior written approval of the em-
ployee and community relations manager or his desig-
nate [Emphasis supplied I
In addition, it was stipulated that the Company distributed
a handbook to its employees about February 1, 1975, con-
taining the following no-solicitation rule
Solicitation on company property is prohibited during
working time, with only the exceptions of such charita-
ALLIS CHALMERS CORPORATION
ble government programs as United Fund and U S
Savings Bonds, and then with prior written approval
of the employee and community relations manager
[Emphasis supplied ]
It is only the Company's first rule, as quoted above, which
is claimed to be unlawful because it broadly prohibits so-
licitation on company property
Tom Cummings, the Company's manager of personnel
relations from about August 1973 to February 1975, testi-
fied that
nobody was ever reprimanded for soliciting We
had a rule up there that wasn't enforced other
than this one instance that we had a vendor on com-
pany property and asked him to leave
Employee Norman Woodthorpe acknowledged in his testi-
mony that union cards were distributed in the plant and
that union supporters solicited employees during "break
times, lunch time and before work " Employee William Ivy
related that employees campaigned for and against the
Union in the plant "during work time " Employee James
Ainsworth recalled that he had "conversations about the
Union during working time" and "break time " Em-
ployee Charles Foster testified that he solicited employee
signatures on union cards on his SDO assembly line before
work, on breaks, and after work'
B The Job Reclassifications Announced on April 26, 1974
Tom Cummings, former manager of personnel relations,
acknowledged that about April 26, 1974, the Company put
into effect a wage reclassification in its SDO assembly de-
partment As a result, certain employees in that depart-
ment were reclassified from grade levels four to six This
reclassification increased the hourly wage rates of some 23
employees by approximately 30 cents Further, on the same
day, some 10 "winder" employees were reclassified from
grade levels 3 to 5 resulting in an hourly wage increase of
30 cents
Cummings recalled that about December 1973, he spoke
with Supervisor Jerry Pilgrim, who was in charge of the
Company's SDO area, concerning employee wage grades
and their job classifications Cummings also spoke with
Supervisor Guido Mulletaire, who was in charge of the
Company's "winder" employees, about this same subject
Cummings recalled that Supervisors Pilgrim and Mulle-
taire requested "an evaluation" of their employees, em-
ployees wanted "to be transferred" to other departments in
the plant "in order to receive a wage increase", and, in
sum, employees working in the SDO area or as "winders"
"would see that they could make more money in another
area 2
Cummings explained that `normal procedure at that
time" was to prepare `a memorandum to the industrial
engineers" requesting a `study" of the particular job classi-
1 The evidence recited above is essentially undisputed I find and con
elude that the above testimony of Cummings Woodthorpe Ivy Ainsworth
and Foster is credible
2 Cummings recalled that employee Charles Foster also spoke with him
about this subject during early 1974
1201
fications in question The engineering department would
"evaluate" the jobs and submit a memorandum to Cum-
mings with its findings and recommendations concerning
the particular labor grade levels About February 22, 1974,
Cummings sent a memorandum to Tom Boyd, the chief
industrial engineer , requesting an evaluation of the job
classifications for "shop blast operators, winders and light
assemblers " Cummings subsequently received an evalua-
tion from Boyd about March 25, 1974 Boyd " recommend-
ed that the assemblers in the SDO area be reassigned to a
labor grade six, that the winders be assigned to a grade five
and that the shop blast operators remain the same " Cum-
mings, in turn, recommended to Ronald K Booth, the em-
ployee and community relations manager, "that we make
these changes " Between March 25 and April 26, 1974,
Cummings spoke with Booth about the reclassifications
Cummings also spoke with T A Palwyn, the manufactur-
ing engineer The reclassifications were finally announced
on April 26, 1974, the day after the initial representation
election 3
Ronald Booth, manager of employee and community re-
lations, testified that the Company opened its new facility
in East Jackson during 1973, that the Company' s initial
wages and benefits for employees in East Jackson had been
established about May 1973, and that it was then antici-
pated that the Employer would from time to time have to
make changes in job classifications and wage rates "to fit
local experience " According to Booth, "job classification
studies [were] being done continuously through the period
of time we've been in Jackson " Booth recalled that Cum-
mings had complained to him "that there was a feeling on
the floor that these classifications were not competitively
set ' Thereafter, the engineering department, as ex-
plained above, prepared a "study" during March 1974
Booth noted that it was "difficult" at the time to discuss
this matter with Plant Manager McDermott because he
"was so tied up with materials and production problems"
during this "start up" phase of the Company's operation in
East Jackson
Howard Equitz, director of employee relations for the
Company, testified that the East Jackson operation had
been relocated from Boston and that IUE representatives
had announced from the outset the Union's intention to
organize the East Jackson employees According to Equitz,
the new plant "opened its doors" about July 1973 The
Company had developed in the weeks prior to the opening,
and continued to develop thereafter, its wage and benefit
programs These were initially based on "tentative evalua-
tions and estimates for wage rates " Management
contemplated that "we would review these [benefits]
3 Cummings testified that he had experienced difficulty in meeting with
Plant Manager McDermott about March or April 1974 because of produc
non problems in the plant which was then in a start up situation Cum
mings also testified that James Cole the warehousing and receiving supervi
sor had requested about this time seven additional employees in his
department as storekeepers Cummings assertedly used Cole s request as a
reason or wedge to get the light assemblers reclassified to a labor grade
six Cummings testified
It was my opinion that as soon as it became [known] that [there]
were openings in stores which was a labor grade five that these people
that were already trained in SDO would request a transfer
And see Resp Exhs 2(a) (b) (c) (d) and (e) and 3
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through refined surveys in the area and to some
extent in the industry and make adjustments as were
called for periodically " The object was, `through pe-
riodic reviews, to remain competitive or better "
Equitz, when asked by the Company's East Jackson rep-
resentatives about job reclassifications and related matters,
explained to local management
they should be very aware of the fact that we
assumed that there would be a concerted effort put on
the union organizational context from the outset
Equitz instructed local management " Do things for
objective business reasons ", do "business as usual",
and "they should expect an extremely prolonged [represen-
tation] proceeding "Equitz recalled that he also spoke
with employees during the organizational effort Equitz ap-
prised assembled employees, as he had apprised local man-
agement
the Company's actions with respect to wages,
benefits or working conditions would be made pur-
suant to announced Company policies and for sound
business reasons and would not be affected one way
or the other by any union campaign
Further, Equitz explained that he had been "consulted" by
local management with respect to the April reclassifica-
tions and whether these reclassifications should be deferred
because of the pending representation proceeding Equitz
testified
I gave them my advice that I could not tell them
that the deferral would be for any specific length
of time , if something was objectively dictated by
good business considerations with respect to the
merits, the substance and the timing of the business
measure, including the reclassification, they
should go ahead and do it
Equitz had been presented with the memoranda and file
pertaining to the April reclassification See Resp Exhs
2(a), (b), (c), (d), and (e) He "reviewed [them] prior to the
time [local management] implemented the reclassification '
He "satisfied" himself "that the study, the reevaluations,
had been commenced and was documented to a time prior
to the filing of the petition" in the representation case 4
C Supervisor Pilgrim Speaks With Employees McCarty,
Foster, and Woodthorpe During April 1974
Employee Randy McCarty testified that he had worked
for the Company in the SDO department from about April
1, 1974, to April 1, 1975 He related a conversation with
Supervisor Jerry Pilgrim in the SDO wiring area during
April 1974, as follows
Mr Pilgrim came up to me and said that
you've just begun work in the plant and you are not
going to be able to vote but I d like to talk to you
about the union , we have an election coming up
4 I credit the testimony of Cummings Booth and Equitz as recited above
Their testimony is in large part mutually corroborative and supported by
the documentary evidence of record
and we don't need a union in this plant The
Company's young and dust beginning to grow He said
the union could cause strikes, could cause hardships,
could cause friends to turn against friends
and he asked me how I felt about the union, and I told
him I didn't know, I'd never been associated with one
and I never had any dealings with one I told him at
that time I did not plan to vote for the union He said
that it will be people like you that can convince other
people to vote against the union He said, I'd appreci-
ate your help
In addition, as McCarty further testified,
Approximately a week after our conversation, he [Pil-
grim] came back to me again and asked me had I
talked to anyone about our conversation and I told
him no, that I hadn't had a chance to talk to anyone
Shortly before the election, he [Pilgrim] came to
me and asked me how I thought the election would go
I told him that I didn't know because I hadn't had that
much time to talk to that many people
Employee Charles Foster testified that he worked for the
Company in its SDO department He recalled having three
conversations with Supervisor Pilgrim on April 26, 1974
The first conversation occurred about 9 a in Foster testi-
fied, as follows
He [Pilgrim] approached me and said-there's
going to be a runoff election-and he was trying to get
around to talking to all of his people He said he had
a lot of his people that are going to support the union
[sic] He was trying to get around to talk to them to
convince them to go against the union He made the
statement-we do not need any outsiders in the plant
Foster testified that he then said to Pilgrim "Jerry, how do
you know that I'm supporting the union " Pilgrim replied
"he had been told' Foster asked Pilgrim "who told you "
Pilgrim said "He couldn't tell [Foster] " Foster then told
Pilgrim "Jerry, I won't tell you which way I'm going to
vote because this is something we have a right to [in] a
secret ballot "
According to Foster, the second conversation with Pil-
grim that day took place shortly after lunch in the work
area Foster testified that Pilgrim "came up and said he
knew that me and Norman Woodthorpe were supporting
the union He said that the Company can do anything for
you that this union can do " Foster asked Pilgrim, "such as
what " According to Foster,
He [Pilgrim] said-you know that raise you were talk-
ing about back in January, a 30-cents raise
*
He said-if the union is voted out, you'll get the raise 5
Foster asked Pilgrim 'is this a promise" Pilgrim replied
no, I can't say it's a promise, but if you'll vote
against the union, you will get a raise He said-I like
Foster testified that he previously had spoken with Pilgrim and Cum
mings in January 1974 about his wage grade level and a transfer and that he
was then told by Pilgrim that Pilgrim was unable to do anything about it
and told by Cummings that there was nothing that could be done
ALLIS CHALMERS CORPORATION 1203
you and Norman [Woodthorpe] and you both do good
work, but the people that are supporting the union, if
the Company wins, probably wouldn't be around
when this is over He went on to say that if the union
was voted in, we would lose some of our benefits, but
he wouldn't state what the benefits would be
The third conversation with Pilgrim that day, according
to Foster, was in the work area in the presence of coworker
Woodthorpe Foster testified
Pilgrim came up and said-Charley, I'm still get
ting more reports on your supporting the union
I said-Jerry, I'm tired of hearing this all the time
Whichever way I decide to go in this election is my
concern and you don't have any right to try to per
suade me in any way I don't want to hear no more
about this, so get off of me and stay off
Employee Norman Woodthorpe testified that he has
been working for the Company since late 1973 on the SDO
assembly line Pilgrim is his supervisor Woodthorpe re
called the following incident between the April 25 and
May 16 elections
Charley Foster and I were talking to each other in
Charley Foster's work area and Mr Pilgrim came up
and said that somebody had said that Charley had
been talking about the union and he wished it would
quit or stop He said, in fact, the person or persons,
whoever it was, complained to him two or three
times Charley asked him who it was and he said he
wouldn't tell him, and then he said something about I
hope you guys vote right A little later on in the
day, he was over in my work area and I told him that
I was going to vote right
Supervisor Jerry Pilgrim acknowledged in his testimony
that he had spoken to employee Foster about the organiza-
tional effort on April 26, 1974 Pilgrim claimed that em-
ployee Fred Lucas had informed him that "he [Lucas] had
been told by another employee that Charley Foster had
said that if the union came in that he, being Lucas, had to
go " Pilgrim claimed that Lucas had informed him that
"Charley Foster had been making threatening gestures at
him with his fingers " Pilgrim claimed that,
I went and talked with Charley Foster and I
asked him if it was true , and if it had been, I
would advise him to be careful what he was saying to
other employees
Pilgrim testified that Foster "wanted to know who told
[him] about it ", Pilgrim assertedly "did not tell [Fos-
ter] because [he] wanted to avoid trouble " Pilgrim
acknowledged that he again spoke with Foster later that
same day Pilgrim testified
Tom Cummings came to me and told me that
Lucas had told him about the threat and I went back
to see Charley again and cautioned him once more to
be very careful about what he was saying, not to be
threatening the other employees
Pilgrim again declined to identify the complaining employ-
ee or employees to Foster Pilgrim could not "recall'
speaking with Foster on any other occasion that day Pil-
grim denied that he had said "anything about the union
campaign" to Foster in "any of these conversations " Pil-
grim denied questioning employees about the union,
threatening employees or promising benefits to employees
Pilgrim claimed "I did not discuss it at all " In addition,
Pilgrim asserted that he `did not discuss [the April 25 and
May 16 election] with [employee McCarty] at all And,
Pilgrim denied threatening employees Foster or Wood-
thorpe `that they would lose their jobs if the union was
voted down " On cross-examination, Pilgrim acknowl-
edged talking with Foster and Woodthorpe before the first
election "about the union", that later, after the first elec
tion, he had observed Foster "out on the highway on num-
erous occasions talking to" a union organizer, and that
"this was one of the ways that [Pilgrim] knew [Foster] was
involved with the union or was for the union " Pilgrim also
acknowledged that employees had informed him about
Foster's union activities Pilgrim claimed that he only
"could talk to employees that weren't pro-union" and ex-
press his "personal sentiments to them' with respect to the
organizational effort 6
D The Evidence Pertaining to Supervisor Johnson s
Statements to Employee Cook on May 10, 1974, and
Cook s Termination on November 15, 1974
Employee Randall Lee Cook testified that he worked for
the Company on its BZO assembly line from February
through November 15, 1974 Cook's supervisor, at times
pertinent here, was Ousborn Johnson Cook started engag
ing in union activities "not too long after" he "started"
working for the Company He talked to other employees
about the Union, solicited employees to sign union cards,
and attended union meetings Cook testified that the fol-
lowing conversation occurred with Supervisor Johnson on
May 10, 1974
Me [Cook] and [employee] Bo Palmer were work
ing in the cabinet of the breaker and Ossie John-
son-well, one of us called him over there to show us
how to fix the thing He came over I don't re-
member how the conversation started, but he had
asked me and Bo how we were going to vote in the
election and we told him that we were going to vote
6 I credit the testimony of employee McCarty as recited above McCarty
impressed me as a reliable candid and trustworthy witness On the other
hand I do not find Pilgrim to be a credible witness Pilgrim s testimony was
at times vague evasive and inconsistent I do not credit Pilgrim s denials of
the conduct and statements attributed to him In addition I find that the
testimony of employee Foster as recited above is credible I have taken
into consideration in crediting Foster the variations between Foster s pre
hearing affidavit his testimony in the representation case and his testimony
before me I have also considered among other factors in the record before
me the testimony concerning Foster s statements and conduct in the plant
in support of the union and his confusion at times as to dates and events
Nevertheless I am persuaded on the entire record before me that Foster s
testimony as recited above is a reasonable and reliable account of the three
conversations which occurred on or about April 26 Likewise although
Woodthorpe s testimony is not fully corroborative of Fosters testimony
with respect to the third conversation I credit Woodthorpe Woodthorpe
like Foster was employed by the Company when he testified And on the
record as a whole Woodthorpe as well as Foster impressed me as credible
and trustworthy
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the union, that we wasn't ashamed for nobody to
know how we were going to vote Later on, he-we
was talking and he asked us-I mean he told us if the
union came in that we would lose benefits that we had
and that we would lose a pay raise that we-we'd
probably have to-if the union came in, we'd proba-
bly get a punch clock that we'd have to punch-a time
clock 7
Cook was terminated on November 15, 1974 He testi-
fied " the day I was discharged, he [Johnson] crit
icized me for throwing some rubber packing, but I wasn't
throwing it " Cook explained
It was me and Bo Palmer, we were up on top of
the tank [breaker] and [employee] Sammy Smith was
down on the bottom, and [employee] Jesse Phelps
was either in the cabinet or in the tank [We] had
been working on another breaker and we came over,
and we didn t have anything to do, and we came to see
if we could help Jesse So, we were sitting up
there [on top of the breaker] and I had rolled this stuff
[caulking] in little balls about the size of a b-b, and we
were just sitting over there, and I was just dropping
them down on the floor, not causing no harm to no-
body or nothing else, and Sammy Smith came
over and was playing around or something and he
was trying to catch it in his mouth, and then I dropped
about four or five pieces About that time, Johnson
came over and said-quit throwing that stuff I said,
all right, you know, I told him I wasn t doing nothing,
you know I said, all right 8
Cook related the next incident which occurred on No-
vember 15, as follows
Later that day-well, say that morning, [employ
eel Jesse Banks came by and I made a remark, honky
Banks or something of this nature
Elsewhere in his testimony, Cook admitted "I called him
honky Banks or nigger or something " Cook claimed that it
"was all in a friendly way 19, "people never com-
plained", and such remarks were "just a real common
thing " Banks, as discussed below, did complain to Super-
visor Johnson who, in turn, complained to upper manage
ment and Cook was terminated that day
Cook further recalled that on the day before his dis-
charge, November 14, he had borrowed a pen from co-
worker James Harris Cook and Harris got into an argu-
ment over the return of the pen Cook testified
I had borrowed James Harris' ink pen and I had
used it most of the day and that evening I was
going to return it to him and when I got there I had it
Cook testified with respect to the above conversation at the representa
tion hearing on July 25 1974 His testimony was credited by the Hearing
Officer in his report on objections which issued on October 18 1974 Em
ployee Palmer who also testified at the representation hearing did not
testify before me
s Cook also testified
And once before I was throwing something just in the garbage
can or something it was a good bit away and he [Johnson] told me
to quit it
in my hand fixing to give it to him and he turned
around kind of mad and said give me my GD pen So,
I said,-wait a minute boy And right at that time,
Johnson came in
Johnson threatened Cook with "a permanent vacation" be-
cause Johnson "thought I [Cook] was clowning with him or
something " In addition, Cook also recalled that on
November 14, the day before his discharge, he and other
employees in his department were given reprimands for
leaving their work areas before the `buzzer" had sounded
As Cook testified, by November 15, he had received a writ-
ten reprimand for leaving his work station early on No-
vember 14 and written reprimands for throwing material
and making racial remarks to coworker Banks on Novem-
ber 15
About 4 10 p in on November 15, as Cook testified,
Johnson instructed Cook to accompany him to the office
of Cummings, the personnel manager Cook recalled
We sat down and Johnson handed me two repri-
mands One was about calling Banks a honky or nig-
ger and the other was for, as he said, I was throwing
objects He didn t say at who or for what, and I read
them over and I asked him-I said something to the
sense that I couldn't believe that Jesse Banks would
say anything to anybody about me calling him a
nigger because that's just a real common thing
Johnson "said that it wasn't good for me to be working
there making racial remarks and throwing stuff, and that
he had constantly told me to stop doing stuff of that
nature " Cook was asked to sign a "card" or statement He
refused He was terminated and left the plant 9
Jesse Banks, employed by the Company since July 1973,
recalled that about November 15, 1974, Cook "hollered out
honky Banks " Banks went to Supervisor Johnson
and "told him that he should get somebody to talk to
[Cook] about that statement or remark " Banks ex-
plained " I don't particularly care so much about that
kind of joking myself " 10
9 On cross examination Cook was shown his prehearing affidavit and
questioned about Johnson s alleged statement in May pertaining to a loss
of a pay increase because of the union Cook after examining his state
ment acknowledged
well the only thing I got here about it was that it wouldn t help our
wages but he did say-I didn t remember this at the time that I did
this but he did say that we would lose a pay increase or raise
Cook was also confronted with variances in his prehearing statement and
earlier testimony concerning whether or not Johnson actually said if the
Union came in we d get a time clock most probably Cook asserted on
cross examination that Johnson constantly bugged him and was pick
ing on him from the outset of his employment Cook claimed that there
was a clash or feud between him and Johnson from the outset of his
employment Cook was recalled on rebuttal and related an incident during
October 1974 when he and other workers engaged in a work stoppage and
complained to upper management about Johnson Johnson as discussed
below was employed by the Company as an inspector until about April
1974 when he was promoted to supervisor Cook recalled that Johnson was
in favor of the Union as an inspector Cook acknowledged that he and a
number of other employees on the BZO line were openly prounion
10 Banks denied hearing Cook use the word nigger Cook as noted
above admitted using this word Banks on cross examination testified that
he was active in the union campaign attended union meetings and served as
an observer for the Union in the election He explained that he spoke to
Johnson about Cooks remark to him on November 15 because he was
concerned
ALLIS CHALMERS CORPORATION
Supervisor Ousborn Johnson testified that he was first
employed by the Company as a "mechanical inspector" in
the assembly area , that he was promoted to supervisor
about April 1, 1974, and that he was then assigned some 25
employees to work under his supervision Johnson recalled
that after becoming a supervisor it became necessary for
him to speak with Cook "about different things that he'd
done' Johnson generally enumerated these complaints, as
follows
1 Cook made "animal noises and sounds and
screams and yelling while working",
2 Cook would "throw objects", and
3 Cook would' swing about" on the working frame
or crane doing "chin-ups "
Johnson explained " it was kind of a nuisance type
thing ', Cook "just continually repeated himself", and
these were "little things that hampered operations " John-
son recalled how Cook was observed by Plant Manager
Platner trying to sneak out of the work area before the
buzzer had sounded Johnson had warned the employees
not to leave the area before the buzzer sounded Johnson
found this incident personally "embarrassing" to him and
a reflection upon his supervisory "ability "
Thereafter, on November 14, 1974, Johnson issued the
following warning to Cook
All employees were instructed that they are to remain
in their work area until the buzzer sound[s] for breaks,
lunch and end of shift On Nov 14, 1974, Randall
Cook was seen out of his work area and going in the
direction of the official break area He has been in-
formed that any further violations can lead to disciph
nary action up to and including dismissal
Johnson wrote up a number of other employees for similar
offenses that same day In addition, Cook was also ob-
served "throwing" caulking cement from "the breaker at
other workers down on the floor " Johnson issued another
warning to Cook Johnson testified that Cook "had be-
come more or less the clown of the work area "
Johnson recalled that Banks came to him on November
15 complaining about Cook's "racial remark," stating "
you have a young man here that you should talk to I think
you'd better talk to him " Johnson explained that Banks,
who is Black, was "angry " Later that day, Johnson, who is
also Black, issued the following writeup to Cook
On November 15, 1974, Jesse Banks came to me and
complained about Randall Cook making racial de-
grading remarks with use of such words as nigger and
honky I cannot afford to have a person of this moral
and social state of mind Attitudes such as this can
completely disrupt the harmony and working condi-
tions of the assembly area
Johnson determined that the use of the words "honky" and
`nigger" was a possible source of trouble" in his depart-
ment He "had been in constant contact with Mr Cook
about his conduct" and it appeared "that there was no sign
of improvement " Johnson decided that Cook was a
`threat to the working conditions and harmony in [his]
area of responsibility ' Consequently, Johnson took Cook
1205
to Cummings that day, November 15 Cook admitted that
he had said "these things " Cummings approved Johnson's
recommendation to terminate Cook 11
Cummings, the personnel manager, recalled that he and
Johnson had discussed "Cook's work habits and conduct
on the job" some 6 or more weeks prior to Cook's termina-
tion Cummings explained that Cook would make unusual
animal calls at work and throw objects Cook had been
warned about this conduct Likewise, Cook had been
warned about "leaving his work area early " Cook's con-
duct had a' tendency to disrupt the work force " Sub-
sequently, on November 15, Johnson again discussed with
Cummings complaints about Cook s conduct at work, in-
cluding the "racial remark," "animal calls, ' and "throwing
things " Cummings concurred in .iohnson's recommenda-
tion to terminate Cook that day 12
E The Company Grants Employees Two Additional
Holidays
Union Representative William Jackson testified that he
passed out a UAW pamphlet in front of Respondent
Company's plant on November 21, 1974, which stated in
part
Why Not A Paid Christmas Shut-down
UAW Union Members get a paid Christmas shut-
down from Christmas Eve through New Year's Day
These days are paid for the same as if you were work-
ing plus a $25 00 Christmas allowance Instead of Fir
ing Workers here in Mississippi the Company should
start this program now and the UAW will negotiate
for a better program when you vote for the UAW in
your up coming election However, the Company may
feel that Mississippi folks don't need this much time
off with pay The workers at Allis Chalmers here in
Mississippi can have the same benefits, wages, and
working conditions as other UAW members have
guaranteed in a written contract signed by the Com-
pany 13
Thereafter, by memorandum dated November 22, 1974,
it Johnson testified that about June or July 1974 a security guard had
used the word nigger to an employee Johnson and other plant personnel
were told about this incident by Plant Manager Plainer The security guard
was given time off without pay Plainer thereafter conducted a series of
meetings with the plant personnel concerning the incident and made clear
that the Company would not tolerate such remarks
12 Johnson denied the statements and conduct of May 10 1974 which
had been attributed to him by employee Cook Employee Palmer as noted
did not testify before me Johnson s testimony in this respect was at times
vague and evasive On cross examination Johnson was confronted with
variations in his preheating statement and earlier testimony Although
Johnson s testimony was in my view not the best I nevertheless would not
predicate findings of coercive conduct or unlawful discharge as alleged
upon the testimony of Cook I do not regard Cook s testimony as recited
herein to be sufficiently reliable or trustworthy so as to support such find
rags I am mindful that Cook s testimony at the earlier representation hear
mg was credited I have a more complete record and different issues before
me And on this record I do not credit Cook s testimony insofar as it
conflicts with the testimony of Johnson and Cummings as summarized
above
13 UAW Representative Jackson testified that he had renewed the
Union s drive about September 1974 He distributed to plant employees a
series of UAW pamphlets during November and December 1974
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plant Manager Platner advised his staff
The following is to be announced to all employees at
8 00 a in Monday, November 25, 1974
1 In response to employee interest in a longer Christ-
mas holiday period, we have decided to add two addi-
tional paid holidays to the 1974 schedule of eight
which will bring the total paid holidays to ten Ten
holidays will also be scheduled for 1975 per the at-
tachment The 1974 additional holidays will be ob-
served on December 26 and 27, 1974
Because our shipment plan did not allow for these ad-
ditional holidays during the Christmas period of this
year, I am extending a personal request to each of our
employees to help meet our December production
goal by Christmas Day We will place charts through-
out the plant to inform you of our December goal and
to keep you informed as to our progress in achieving
this goal
2 As a result of our employee meetings and as a re-
sult of the feed-back from various surveys that have
been taken, we have decided not to schedule a uni-
form plant shutdown in 1975 Vacations will be sched-
uled in an effort to meet individual preference in the
same manner as in 1974
Cummings, manager of personnel relations, acknowl-
edged that he had received a copy of the UAW pamphlet
Cummings claimed that the Company made a "survey" of
employers in the area before granting the extra holidays
Cummings also claimed that the Company relied upon a
survey of the Mississippi Manufacturers Association Cum-
mings was unsure when the Company conducted its sur-
vey The Association's survey was published about July
1974 Cummings acknowledged that, "by granting these
two additional holidays, Allis-Chalmers was having more
holidays than the survey normally recommended for
this area " Cummings also acknowledged "I wasn't too
much involved in the holiday granting "
Booth, the Company's manager of employee and com
munity relations, identified a memorandum to the file,
signed by him and dated September 20, 1974, which states
Per discussion between Mr R L McDermott and
myself this date, it has been decided that Power
Breaker Division, Jackson, Mississippi plant, will ob-
serve 10 holidays during calendar year 1975 and there-
after
Booth explained that Plant Manager McDermott
"wouldn't buy the two additional holidays for 1974 " How-
ever, Platner replaced McDermott as plant manager during
October 1974 and later granted the extra holidays, as stat-
ed above i4
14 The evidence summarized above is essentially undisputed However
Booth claimed in his testimony that in effect management had determined
to grant the extra holidays prior to receipt of the UAW literature I do not
credit the assertion that Respondent made this determination prior to re
ceipt of the union pamphlet As discussed infra I am persuaded instead that
Plant Manager Platner in suddenly granting the extra holidays was re
sponding to the union campaign and its literature in an effort to undermine
employee union support
F The Job Reclassifications Posted on December 13, 1974
On December 13, 1974, a memorandum addressed to all
employees signed by Plant Manager Platner was posted,
stating as follows
From time to time the Management of the Jackson
Plant reviews the appropriateness of the current labor
grade assignments of our various jobs These reviews
can also be initiated by employee request through his
supervisor if there is reason to believe the job has been
changed since the labor grade was established, or that
an error was made in the labor grade assignment
For the past few weeks we have been conducting a
review of our labor grades and have concluded that
the following change should be made effective De-
cember 17, 1974
From Labor
To
Labor
Job Title Grade Grade
1 Drill Press
Oper 4 5
2 Radial Drill
Oper 5 6
3 Plater 5 6
4 Horiz Boring
Mill Oper 6 8
5 Receiver 6 8
6 Maintenance
Painter 6 Delete
7 Painter Not Currently
Mechanic exist 7
8 NC Machining
Ctrs
Currently empl
classed as Mill
Mach Operators
(7) 8
9 Electricians
Sr 11 12
10 Pangborn
Operator New Grade 5
These evaluations resulted in hourly wage increases rang-
ing from about 20 to 30 cents for some 20 employees The
evidence pertaining to these evaluations is summarized be-
low
Booth, manager of employee and community relations,
testified that this reclassification resulted from supervisory
inquiries Platner replaced McDermott as plant manager in
October 1974 According to Booth, "Platner never acted on
any individual job reclassification recommendations
, rather, Platner requested that all the plant jobs be
reviewed-"he didn't want to work on them piece meal "
Thus, as Booth further explained, by memorandum dated
August 16, 1974, John D Maxey, supervisor of employ-
ment and safety, requested Tom Boyd, the chief industrial
engineer, to evaluate the job classifications "for possible
increases in labor grades" of senior electricians, shot blast
ALLIS CHALMERS CORPORATION
operators, dull press operators, boring mill operators and
radial drill operators Maxey also requested recommenda-
tions on requests for "new job classifications" such as
pangborn operators and pamter/mechanics Thereafter, by
memorandum dated September 24, Nelson Sechrist, a
manufacturing engineer, advised Tom Boyd, the chief in-
dustrial engineer, of his evaluation and recommendations
with respect to the classifications stated above Sechrist re-
quested a grade level increase for electricians, drill press
operators, boring mill operators, and radial drill operators
Sechrist would give the pangborn operators the grade re-
quested by Maxey, supervisor of employment and safety
Sechrist would give painter/mechanics one grade higher
than the grade requested And, Sechrist would not recom-
mend any increase for shot blast room operators (See
Resp Exhs 7(a), (b), (c), (d), (e), (g), and (h)) Thereafter,
by memorandum dated October 2, 1974, Maxey again re-
quested Boyd to evaluate and recommend a labor grade
classification for the K & T machine operator Later, by
memorandum dated November 13, 1974, Boyd submitted
his reevaluation of this grade level, recommending that the
grade level be increased by one step (See Resp Exhs 8
and 9)
In the meantime, by memorandum dated November 8,
1974, Booth advised Platner with respect to the "economic
implications" resulting from proposed classifications (See
Resp Exh 15) However, as stated above, Platner did not
favor "piece meal" evaluations of plant job levels Conse-
quently, by memorandum dated November 15, 1974, Rob-
ert H Taylor, manager of the manufacturing engineering
department, advised Platner
Per your instructions, on Friday, November 15, 1974,
Mr Tom Pawlyn, Mr Ron Booth, Mr Tom Boyd and
myself reviewed the task involved in reevaluating
hourly employee wage rates It is our opinion that the
entire reevaluation can be completed and presented to
you in the form of a report no later than Wednesday,
November 27, 1974 This evaluation would cover all
hourly employees presently classified by E & CR
On November 18, 1974, Sechrist, a manufacturing engi-
neer, submitted his recommendation to Boyd, the chief in-
dustrial engineer, with respect to the N/C turning center
job (Resp Exh 11) and the horizontal boring mill opera-
tors (Resp Exh 12) And, on November 25, 1974, Boyd
forwarded on to Taylor the evaluations for the drill press
operators, radial drill operators, platers, horizontal boring
mill operators, receivers, painter/maintenance workers,
n/c machinery operators, electricians, and pangborn oper-
ators (See Resp Exh 13) Thereafter, by memorandum
dated December 10, 1974, Plant Manager Platner informed
the employees
REVIEW OF HOURLY LABOR GRADES
Prior to finalizing the Annual Business Plan for the
Power Breaker Division, Plant Management must re
view the total business objectives for the coming year
One item which is reviewed at least annually is labor
grades This review is prompted by product, business
and job content changes A report is prepared by E &
CR and Industrial Engineering and presented to Plant
1207
Management During November, 1974, a review was
conducted on the existing labor grades The following
changes are being implemented on December 17,
1974
Prop
Current Labor
Job Title Labor Grade Grade
1 Drill Press
Oper 4 5
Z Radial
Oper
Drill
5 b
3 Plater 5 6
4 Horiz Boring
Mill Oper 6 8
5 Receiver 6 8
6 Maintenance
Painter 6 Delete
7 Painter Not currently
Mechanic exist 7
8 NC Machining Currently empl
Ctrs classed as Mill
Mach Operators
(7) 8
9 Electrician
Sr 11 12
10 Pangborn
Operator New Grade 515/
G Management's Memorandum Dated December 20, 1974
The Company, in a pamphlet opposing the Union's or-
ganizational effort, dated December 20, 1974, apprised the
employees, in part as follows
THE UNION SUGGESTED YOU LOST MONEY BY NOT VOTING FOR
IT-
15 John Maxey supervisor of employment and safety explained that the
various memoranda as recited above were prepared as part of my normal
Job that the personnel department had no input in the evaluations and
recommendations of the engineering section and that he had received re
quests from industrial engineering and forwarded them to Booth Tom
Boyd the chief industrial engineer also testified that the above (Resp Exh
7) is a typical evaluation request from the personnel department and I
receive them routinely and make an investigation into the job content and
make my recommendation back to the personnel department Boyd
testified that the personnel section had no input in the recommendations
And former personnel manager Cummings recalled that the foregoing in
creases resulted from requests by department supervisory personnel Cum
mings however acknowledged that we didn t have a formalized plan
whereby we evaluated all jobs at a given point Equitz director of employ
ee relations for the Company whose testimony is also discussed supra sec
tion II B had advised local management with respect to reevaluations that
they should conduct themselves by doing business as usual and they
should expect an extremely prolonged [representation] proceeding Equitz
did not review the memoranda pertaining to the December evaluations be
cause as he testified By that time we simply had a [representation] pro
ceeding that may never end
The evidence summarized above is essentially uncontradicted and I have
credited the above testimony of Booth Cummings Maxey Boyd and
Equitz
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The TRUTH of the matter is that the union has attempt-
ed to prevent the company from making improve-
ments for You, by complaining to the National Labor
Relations Board The union will probably do it again
If it was really interested in YOUR well being, why ob
sect to these company measures9 Last Wednesday, the
company received notice from the NLRB in a case
which the UAW is pressing It is challenging reclassifi
cation increases If the union would win this case, the
company may well have to cancel these increases
Booth acknowledged that he had authorized the issuance
of this handbill to the employees
H The Wage Increases and Other Benefits Granted
Employees During January and June 1975
Employee Henry Shurlds recalled that during January
1975, Plant Manager Platner announced to the workers
that they would receive a 5-percent wage increase `due to
an increase in productivity and the working together of the
people there in the plant " Platner also announced
that the Company would pay certain nospitalization insur-
ance premiums for its employees Shurlds recalled that lat-
er that year, during June 1975, Platner again announced to
the workers a 30 cent hourly wage increase and an increase
in employee workmen's conpensation benefits According
to Shurlds, the "reasons' given by Platner "were again the
increase in productivity and the working together of the
people ' 16
Plant Manager Platner notified the employees, by mem-
orandum dated June 24, 1975, as follows
Dear Fellow Employees
I would like to take the opportunity to thank all of you
for the support you have given me during the last eight
months We have all come a long way toward turning
our division around and the improvements are signifi-
cant
The President of Allis-Chalmers, Mr D C Scott, and
his staff visited with us last Tuesday, and were very
impressed with our progress Each of us can certainly
take pride in what we have accomplished
A year has passed since our last annual wage review
As I have indicated to you on many occasions, our
progress personally is tied to our ability to make our
business a success Because of the progress over the
last year, I take pride in announcing the following im
provements in the wage and benefits package to be
effective June 30, 1975
1 An across the board hourly wage increase of 30
cents per hour
2 A supplement to the workmens compensation
16 Employee Lucian Lamkin testified that Plant Manager Platner an
nounced the 5 percent wage increase to employees in January 1975 and the
Company s determination to pay the group insurance premiums The
Company s assumption of the premium payments resulted in a weekly wage
increase to Lamkin of $2 50 Employee Duwaine Robbins testified to the
same general effect
payments to make them equal to payments under
our disability income plan
Our continued efforts to improve our business will re-
sult in continued wage and benefit improvements for
each of us
Equitz, the Company's director of employee relations,
testified that the Company had an "overall policy" and
"established standard approach to wage problems " Equitz
explained
It was an approach that had been applied with vari-
ations over a period of six or seven years from the
middle to late sixties into the seventies It was an ap
proach and policy with respect to wage compensation
systems at new operations that derived from experi-
ences with what came to be approximately the estab-
lishment of a new plant each year beginning in the
middle to late sixties, and continuing really into 1974
By the end of 1972 or the beginning of 1973, the
company had established the approach by which wage
shop employee compensation systems at new plants
would be established at the outset with a rate schedule
that was based on survey and other information, and
would be intended to be adjusted by means of annual
wage reviews that would be essentially on the anniver-
saries of the date that the plant was considered to have
[opened], with interim reviews usually at half-annual
intervals, which also were intended to produce what-
ever adjustments might be called for as the review dis-
closed
The kinds of considerations, both at the anniversa-
ries and in connection with the interim reviews, were
area rates, rates paid in the industry of concern, com-
petition, and availability or non availability of em-
ployees-the usual considerations
Equitz asserted that this "procedure" or "policy" was gen
erally applied at the East Jackson plant and at other new
facilities According to Equitz, "the fact that the Jackson
plant has been under union organizational efforts" since its
opening "has not affected this policy ' 17
Booth, manager of employee and community relations,
testified that a wage increase was granted to the East Jack-
son plant employees during January 1975 "to maintain our
competitive situation as a result of cost of living escalations
and productivity increases at the plant " Booth explained
that the Company's `wages had fallen behind those of our
competitors since the last increase In addition, Booth tes-
tified that, with respect to the June 1975 increase, " we
considered the Department of Labor-Bureau of Labor
Statistics, wage increases for the Jackson [region], the
17
Equitz specifically noted that the Company had opened a plant during
April 1973 in Sanford North Carolina and applied the same approach to
wage compensation At Sanford the Company reviewed wages about April
1974 and a general adjustment was applied at that time which averaged to
an increase of 12 1/2 percent Then at mid year in Sanford about October
1974 a 5 percent adjustment was made or a total increase in 1974 of 17 1 /2
percent Equitz further recalled that in April 1975 a 7 percent increase
adjustment was made at Sanford Equitz asserted that in October 1975
there would be a 5 percent increase at Sanford The Company also had
opened a new plant in New Orleans during mid 1974 As for the New Orle
ans plant Equitz noted that a mid year adjustment increase was granted of
about 3 percent during January 1975 and in July 1975 a further general
adjustment was made
ALLIS CHALMERS CORPORATION 1209
cost of living escalations over the period of time in ques-
tion and the increases that had been granted by our
competitors at that time or up to that time" Thus, as
Booth noted, the Department of Labor, Bureau of Labor
Statistics, Area Wage Survey, dated February 1975, shows,
inter alga, that from January 1973 to January 1974, un-
skilled manufacturing workers in Jackson had increases in
average hourly earnings of about 7 3 percent and had in-
creases from January 1974 to February 1975, of about 13 3
percent And, as Booth explained, from the time the East
Jackson plant opened in July 1973 through about June
1975, earnings for employees had increased there about
20 4 percent (i e , 8 percent in July 1974, 5 percent in Janu-
ary 1975, and 7 4 percent in June 1975 See Resp Exh 30)
Consequently, as Booth testified, the Bureau of Labor Sta-
tistics increases reflect area increases of 22 06 percent from
about July 1973 through June 1975, whereas the
Company's increases at East Jackson for the same period
are about 20 4 percent The testimony of Booth and Resp
Exh 30 (received in evidence without objection) essentially
support the Company's assertion that the timing of its
wage increases at East Jackson during 1975 was in general
accord with the Employer's established policy and that the
percentage of hourly wage increases was in general accord
with the area percentage increases And, cost-of-living in-
creases during this period were about 22 4 percent i$
I The Conduct of Supervisors Poynor, Nowlin, Cole and
Morris During February and March 1975
1 Poynor
The third representation election was held on March 21,
1975 Employee Henry Shurlds testified that during mid-
February 1975, Supervisor Larry Poynor "sent for" him
and had the following "private" discussion with him in
Poynor's office
the discussion started with grievances and prob
lems that I [Shurlds] had that I would like to tell
him [Poynor] so that he might get these grievances and
problems down and relate them to his superiors so
that they could have some idea of what [were] my
problems and things at that time
Poynor and Shurlds "talked about some of the grievances
" which Shurlds related to Poynor, including "job up-
grading and [the] seniority system " Employee Shurlds fur
ther testified
18 Booth noted that Packard a competitor has granted its employees
increases of about 23 3 percent ourmg this period Further General Electric
has granted its employees increases of about 76 per hour whereas Respon
dent has granted increases of about 79 per hour Booth added that he
understands that in the next month General Electric will grant an 11 in
crease Booth also noted that employers Packard and Armstrong have no
employee contributory insurance although General Electric does have con
tnbutory insurance Booth testified based on this information we felt
that to be competitive we should eliminate the contributory insurance As
for the increase in workmen s compensation benefits Booth explained All
this did was to supplement the workmen s compensation benefits that
the State offered to make them equal with our disability benefits
The evidence summarized above is essentially uncontroverted I credit the
testimony of Shurlds Lamkm Robbins Equitz and Booth recited above
he [Poynor] asked me if I thought the union was
going to go in I told him that I thought the
union would go in this time and he asked me why
And, I told him, based upon the attitudes of the
people and what the ones that I had talked to in
the plant that I thought the union would win the elec-
tion And, he told me that he thought we did not
need a union to handle our grievances and our prob-
lems, that the company would be able to see our needs
and handle our problems, that we didn't need a third
party [and] that the people here in Mississippi
have to expect a little less, and I disagreed with him
Employee Shurlds recalled that Supervisor Poynor spoke
with him again during the first week in March 1975 in the
breakroom in the presence of other employees Shurlds tes-
tified
he [Poynor] was talking to us about old contracts
on the BZO breaker that they were filling at that pres-
ent time They were old contracts They did not have a
cost escalator clause in them and they were losing
money on these breakers, that the company at
that time could not take on any more pressure from
any outside agency, or any financial burden, that
these old contracts had to be filled and as soon as the
newer ones were filled, we would be in a lot better
shape financially
According to Shurlds
I made the statement to him at that time, this
company would make it with or without the UAW
and he immediately responded to me and the others,
he said no way, no way This company has got enough
money and enough power to close the doors of this
plant and write it off as a loss
Employee Preston Brown recalled that Supervisor Poy-
nor took Brown to his office about February 21, 1975
There
he [Poynor] told me that he was briefing each and
everyone that works in the fab shop at night about the
union benefits and the company benefits He
[Poynor] also mentioned some of the people that was
working there in the fab shop, and how he felt about
whether they was paid right And then he asked
me how did I feel about the union myself and I told
him like this, most of the jobs that I have worked
were union jobs, and that was about it
Employee Brown recalled another conversation in the
break area about 1 week later, as follows
we was discussing some union benefits and some
other things we usually talk about on breaks, and
then Poynor stated that if the union came into the
plant, that the plant would shut down and they could
write this off as a company loss
Employee Alfred Davis testified that during February
1975,
he [Poynor] came down and told me he wanted to
see me in his office, and he asked me what were my
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
likes and dislikes about the company So, I told
him I didn't have any , he asked me why did I
want a union , I told him the union had good
benefits [and] he told me the company had good bene-
fits
Employee Davis recalled that Poynor later approached
him at his work station and "asked me had I changed my
mind about the union and I told him no, and he asked me
was there anything he could do to make me change my
mind and I told him no "
Employee Robert Pierce testified that about March 7,
1975, shortly before the third representation election, Poy-
nor
said he wanted to talk to me and we went up, and
was seated, and the first thing he said was I know
you're against the union and I didn't say anything,
and then he said we didn't need a union and since
we were from Mississippi we could expect less,
and I told him that I didn't want to discuss the union
with the company
Thereafter, on March 10, 1975, as employee Pierce testi-
fied
I [Pierce] was in my work area and Larry Poynor
came over and wanted to talk to me and said that
we didn't need a union, that we could expect less be-
cause we were from Mississippi, and [he] said that the
company was losing money every month and if the
union came in, the company would be shut down and
put off on the tax
Supervisor Poynor did not testify and, on the record be-
fore me, I credit the testimony of employees Shurlds,
Brown, Davis, and Pierce recited above as truthful and
reliable accounts of their conversations with Poynor
2 Nowlin
Employee Ricky Powell testified that a few weeks prior
to the March 21, 1975, representation election
[Supervisor] Nowlin came up to me and said he
didn't want to tell me how to vote or nothing like this,
and he wasn t going to say nothing for the company or
against the union because he got in trouble for it last
time, and [he] said he didn t want to tell me how to
vote but the best way that he thought would be for the
company, and if the union did come in, that we would
probably lose some of our privileges that we had now
Employee John Williams testified that shortly before the
March election, Supervisor Nowlin spoke with him and co-
worker Powell "about the union' According to Williams
He [Nowlin] said that just because the union
would be in didn't mean we would get anything out of
it, and that we'd probably lose some of the benefits
and privileges we had now, and that if the union got in
and we went on strike that they could bring people in
for our jobs-to take over our jobs, and then I asked
him why he would take us off our work and tell us all
this stuff, and keep us off our work, and he said I
would sit there and listen while we were on company
time and being paid by the company
Williams further recalled that coworker Jesse Banks
"walked up and told Rick [Nowlin] that he shouldn't talk
to more than one person at a time about the union "
Nowlin did not respond However, later, according to Wil-
liams
Rick Nowlin turned around and saw Jesse
[Banks] over there talking to a woman He [Nowlin]
walked up to him and asked him what he was talking
about and Jesse didn't say anything and he [Nowlin]
told him [Banks] to get out of our area Then, Jesse left
and Rick Nowlin walked by Powell and myself
and said that [if] Jesse had been talking for the compa-
ny, that he could have stayed in the area, and that he
[Nowlin] knew what [Banks] was talking about, so he
had to run him off
Supervisor Ricky Nowlin admitted discussing the Union
with employees Powell and Williams about March 7, 1975
Nowlin claimed that he had said to the employees, inter
aka, ' if the union had won the election, things might
be the same as they are now, that there might be no
change, that they might be a lot better off, they [might] end
up with higher wages, better working conditions, increased
benefits, or that, on the other side, things could be worse
Nowlin also testified
I [Nowlin] spoke to John [Williams] one morning
I think Ricky [Powell] was in the area, and maybe one
or two other employees, and at this particular time,
people were quite serious about things and everyone
had a long face, more or less, so there was some-
one, I don't remember who exactly, in the area talking
to somebody, and every time you see a man from out-
side of your department talking to someone, you don't
really know what they're talking about, but in a num-
ber of cases , they probably are discussing something
concerning the up-coming election, and I made a com-
ment that that man over there must be talking, you
know, in favor of the company, because if he wasn't,
I'd have to run him off, you know, and that raised a
few eyebrows
Nowlin claimed that he then assured the workers that he
was "just yoking " Nowlin acknowledged that he had spo-
ken to employee Banks and apprised Banks that "he'd
have to stay in his own department " Nowlin denied
any disparate treatment of employees with respect to dis-
cussing the Union 19
3 Cole
Employee Duwaine Robbins testified that Supervisor
James Cole spoke with him about the Union on the day
before the March election Robbins testified
19I credit the testimony of employees Powell and Williams as recited
above I am persuaded on this record that their testimony as quoted herein
is more reliable and trustworthy than the testimony of Supervisor Nowlin
ALLIS CHALMERS CORPORATION
the day before the election, Jim Cole, my supervi-
sor, called me back in the racks between the storeroom
, he asked me, you know, he said, well, tomorrow
is the election and I want to make sure you had all the
facts as Mr Platner had said He [Cole] asked me
have I ever worked in a plant with a union before
[Robbins] said no He [Cole] says, well, you
know, if the union comes in , things will be differ-
ent, like times coming to breaks, lunch, they
could tighten down on it, you know , get stricter, and
then also the warnings, you know, they give you warn-
ings They wouldn't accept excuses and that excuses
wouldn't matter, and they give you a set amount of
warnings , [and] if you were late so many times,
or something like that , have a certain amount of warn
ings, and then you were discharged
Employee George Davis related that shortly before the
March election , Supervisor Cole,
came to me and asked me how did I feel about
the union I told him I think it would be a nice
thing to have in the company He asked me why I
said, I think it would be better benefits and more mon-
ey
Davis then related his complaints to Cole Cole attempted
to assure Davis, "You'll just have to wait your turn
» 20
4 Morris
Employee Ralph Gilbert testified that on the morning of
the March election, Supervisor,
Peter Morris asked me did I have any giestions about
the election and how I felt about the union and I told
him I didn't have any questions about the election and
I supported the union
Gilbert recalled that Morris then related to him how, in the
past, `a union representative came to his [Morris'] house
and talked to him about the union and he [Morris] ran
him off from the house " 21
20 Supervisor Cole admittedly spoke with employee Davis about the elec
tion 1 day prior to the election Cole was uncertain who brought the sub
sect of the union up Cole assertedly assured Davis that as far as I was
concerned the fact that he was for the union wouldn t have any impact
at all from my point of view Cole denied questioning the employee
about the Union As for Robbins Cole denied telling the employee that
things would be stricter Cole acknowledged stating in the
plants that I ve worked in the past I kind of saw the rules and regula
tions become a little tighter Cole admitted that he probably had
said that there is a possibility that there could be stricter rules and regula
tions I credit the testimony of Robbins and Davis recited above as
more reliable and trustworthy than the testimony of Cole
21 Supervisor Morris admitted that he discussed the Union with Gilbert
on the day of the election He denied asking Gilbert how do you feel about
the union Morris dio not recall telling Gilbert about an incident involving
a visit to his home by a union representative Morris asserted that he in fact
had related this incident to another worker Morris admittedly was told by
some employees they were not in favor of the union I credit Gilbert He
impressed me as a more reliable and trustworthy witness than Morris
III DISCUSSION
1211
A The Company's No-Solicitation Rule
As discussed in section II, A, supra, Respondent Compa-
ny posted at its East Jackson plant from about November
26, 1973, until shortly after May 16, 1974, a rule broadly
proscribing ` solicitation on company property with-
out prior written approval " After May 16, 1974, the
Company posted a rule prohibiting solicitation `during
working time without written approval " And, there-
after, about February 1, 1975, the Company distributed a
handbook to its employees prohibiting solicitation "during
working time " It is only the first rule quoted above
which is alleged to be unlawful General Counsel argues
"While not contending that this no-solicitation rule was
disparately enforced, General Counsel does contend that
its mere promulgation and posting had an inhibitory effect
upon employees in the exercise of their Section 7 rights "
Recently, in House of Mosaics, Inc, 215 NLRB 704
(1974), the Board majority (Member Jenkins concurring in
part and dissenting in part ), stated
The validity of no-solicitation rules must be tested
against the standards set forth in Essex International,
Inc, 211 NLRB No 112 (1974) Essex establishes that
a rule prohibiting solicitation during working hours is
prima facie susceptible of the interpretation that solici-
tation is prohibited during all business hours and thus
invalid However , an employer may show by extrinsic
evidence that, in the context of a particular case, the
"working hours" rule was communicated or applied in
such a way as to convey an intent clearly to permit
union solicitation during breaktime or other periods
when employees are not actually engaged in the per-
formance of their work tasks
In House of Mosaics, Inc, supra, the rule proscribed solici-
tation `in the building at any time " The Board held that
the rule `is therefore prima facie invalid (assuming arguen
do that it is directed at union solicitation ) but extrinsic
evidence establishes that the rule is applied in a lawful
manner " The Board stated
The Administrative Law Judge credited the testimony
of [the company president] that the rule was never in-
tended to discourage employees from talking about
unions during break and lunch periods but was adopt-
ed merely to discourage vendors from bothering em-
ployees while at work Further, the Administrative
Law Judge credited [the president's] testimony that he
had asked employees to use their lunch periods and
spare time to discuss union, as well as company, poli-
cies We find that this extrinsic evidence overcomes
theprima facie invalidity of the rule and therefore does
not violate the Act
In the instant case , the Company's initial no -solicitation
rule proscribed "solicitation on company property
without prior written approval " This rule is overly broad
and, therefore, is prima facie invalid The evidence of rec-
ord shows, as Personnel Manager Cummings testified, that
"nobody was ever reprimanded for soliciting", that this
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rule "wasn't enforced other than one instance that we
had a vendor on company property and asked him to
leave", and that employees in fact engaged in union solici-
tation during their break and meal periods Nevertheless,
this rule was posted during the Union's organizational
drive No attempt was made by management to explain to
employees that the posted no-solicitation rule was inappli-
cable to their union activities during breaks and meal peri-
ods And, although later adopted no-solicitation rules re-
stricted their proscription to "working time," the record
shows no effort made by management to explain to em-
ployees that the earlier posted no-solicitation rule had been
modified so as not to impinge upon their Section 7 rights
Cf Levi Strauss and Co, 172 NLRB 732, 746-747 (1968),
enfd 441 F 2d 1027, 1030-31 (CAD C, 1970) According-
ly, since the employees were not advised that such a limited
interpretation attached to the first published no-solicitation
rule, those employees who wanted to engage in protected
in-plant union solicitation "might well be deterred or else
reasonably assume that [they] acted at [their] peril'
NLRB v Walton Mfg Co, 289 F 2d 177, 180-181 (C A
5, 1961)
In sum, although the issue is not free from doubt, I find
and conclude that here, unlike in House of Mosaics, Inc,
supra, "the extrinsic evidence" does not sufficiently show
that Respondent's posted no-solicitation rule' was commu-
nicated or applied in such a way so as to convey an intent
clearly to permit union solicitation during break time or
other periods when employees are not actually engaged in
the performance of their work tasks" Therefore, Respon-
dent, by posting such an overly broad rule, violated Section
8(a)(1) of the Act
B The Termination of Employee Cook
It is alleged that the Company unlawfully terminated
employee Cook on November 15, 1974, because Cook en-
gaged in union and protected activities and because Cook
testified before the Board at the representation hearing
The questions presented are whether Respondent Compa-
ny, in terminating Cook, was motivated at least in part by
union animus and whether Respondent terminated Cook
at least in part because he gave testimony under the Act
The evidence pertaining to Cook's termination is de-
tailed in section II, D, supra Cook commenced working for
the Company during February 1974 He became a union
supporter "not too long" after he "started" working for the
Company He talked to other employees about the Union,
he solicited employees to sign union cards, and he attended
union meetings Cook, as well as other employees, testified
at the representation hearing on July 25, 1974 Cook, in his
testimony at the representation hearing, attributed certain
objectionable conduct to his supervisor, Ousborn Johnson
Subsequently, on October 18, 1974, the Hearing Officer
who conducted the representation hearing, issued his re-
port crediting, inter alga, the testimony of Cook The Hear-
ing Officer's report was adopted in part by the Board on
February 7, 1975
On November 14, 1974, the day before Cook was termi
nated, Cook was involved in an argument with a coworker
because Cook had failed to return his pen According to Supervisor Johnson as not supported by sufficient credible proof
Cook, Johnson "thought [Cook] was clowning" and ad-
monished Cook because of this conduct Also, on Novem-
ber 14, Cook and other employees were given reprimands
for leaving their work area before the buzzer had sounded
Cook and his coworkers had been warned earlier not to
leave the work area before the buzzer sounded On the next
day, November 15, Cook was given a reprimand for throw-
ing rubber caulking and packing from the breaker Cook
had been warned earlier about this type of conduct And,
later the same day, November 15, Cook called coworker
Banks a "honky" and "nigger " Banks complained to John-
son who in turn complained to upper management and
Cook was discharged There had been an earlier incident at
the plant involving a related racial comment which had
been made by a security guard to an employee The securi-
ty guard was given time off without pay for this conduct
and employees were apprised that the Company would not
tolerate such conduct
The burden of proving the violation, as alleged, rests
upon General Counsel On the record thus made, I am not
sufficiently persuaded that Respondent Company termi
nated employee Cook either because of the employee's pro-
tected concerted activities or because the employee gave
testimony under the Act On the contrary, I find and con-
clude that management, after repeated warnings, terminat
ed Cook because he continued to engage in conduct which
had "a tendency to disrupt the work force " This con
duct, as detailed above, included making "animal noises
and sounds and screams and yelling while working",
"throwing objects", swinging about' on the working
frames and doing "chin-ups", leaving the work area before
the buzzer sounded, and calling a Black coworker a
"honky and "nigger' I have taken into consideration
such factors as, among others on the record as a whole,
management's opposition to the Union's organizational ef-
fort, Cook's organizational activities and testimony at the
representation case, the sequence of events, and
management's unwillingness to impose a lesser discipline
upon Cook Nevertheless, these and related factors at best
raise a suspicion of unlawful purpose and do not sufficient-
ly establish the violation as alleged I therefore would dis-
miss the allegations pertaining to employee Cook as not
sufficiently established by credible proof 22
C Management Interrogates and Threatens Employees,
Solicits Employee Grievances and Support Creates the
Impression of Surveillance, and Promises Employees
Benefits
As found supra section II, C, Supervisor Pilgrim ap-
prised employee McCarty during April 1974
we have an election coming up and we don't
need a union in this plant , the union could cause
strikes, could cause hardships, could cause friends to
turn against friends
At the same time, Supervisor Pilgrim questioned employee
McCarty "how [he] felt about the union " Employee
22I would also dismiss the allegations of coercive conduct attributed to
ALLIS CHALMERS CORPORATION
McCarty responded that he "didn't plan to vote for the
union " Supervisor Pilgrim then told employee McCarty
" it will be people like you that can convince other
people to vote against the union" and "I'd appreciate your
help " Thereafter, Supervisor Pilgrim asked employee Mc-
Carty if he "had talked to anyone about [their] conversa-
tion [and] how [he] thought the election would go
' Employee McCarty told Supervisor Pilgrim that he
`didn't know" how the election would go" because he
"hadn't had that much time to talk to that many people "
Shortly after the first election, Supervisor Pilgrim ap-
proached employee Foster at work Supervisor Pilgrim ap-
prised employee Foster that there s going to be a runoff
election", that "a lot of his people" were going to support
the union", and that he "was trying to get around to talk to
them to convince them to go against the union " Employee
Foster asked Supervisor Pilgrim, "how do you know that
I'm supporting the union " Pilgrim replied "he had been
told " Foster asked Pilgrim `who told you " Pilgrim said
"he couldn't tell " Employee Foster refused to reveal
to Supervisor Pilgrim "which way I'm going to vote "
Later that same day, Supervisor Pilgrim again approached
employee Foster and this time "said he [Pilgrim] knew that
[Foster] and [coworker] Woodthorpe were supporting the
union " Supervisor Pilgrim told employee Foster
" the Company can do anything for you that this union
can do " Pilgrim also told Foster " you know that
raise you were talking about in January, a 30 cents raise,
if the union is voted out, you'll get the raise " At
the same time, Supervisor Pilgrim warned employee Fos-
ter
I like you and [employee Woodthorpe] and you
both do good work, but the people that are supporting
the union, if the Company wins, probably wouldn't be
around when this is over
Supervisor Pilgrim added " if the union was voted in,
we would lose some of our benefits " And, later that
same day, Supervisor Pilgrim again approached employee
Foster, as well as employee Woodthorpe, and said, `I'm
still getting more reports on your supporting the union
The Charging Party Union's objections to the second
representation election were sustained in part by the Board
and a third election was held on March 21, 1975 As found
in section II, (I), supra, Respondent Company's supervisors
engaged in the following conduct prior to the third elec-
tion
During mid-February 1975, Supervisor Poynor "sent
for" employee Shurlds and had a "private" discussion with
Shurlds in Poynor's office There, Supervisoi Poynor asked
employee Shurlds about his "grievances and problems" "so
that [Poynor] might get these grievances and problems
down and relate them to his superiors ' Employee
Shurlds stated his "grievances" to Supervisor Poynor in-
cluding `job upgrading and [the] seniority system ' Super-
visor Poynor then questioned employee Shurlds if he
"thought the union would go in " Employee Shurlds
responded that he "thought the union would go in this time
" Supervisor Poynor asked employee Shurlds "why '
Employee Shurlds explained that, "based upon the atti-
1213
tudes of the people that [he] had talked to in the plant
" the Union "would win " Supervisor Poynor told em-
ployee Shurlds that "we did not need a union to handle our
grievances and our problems, that the Company would be
able to see our needs and handle our problems " Lat-
er, while employee Shurlds and other coworkers were in
the break area, Supervisor Poynor stated to the employees
"that the Company at that time could not take on any
more pressure from any outside agency or any financial
burden Employee Shurlds replied " this Com-
pany would make it with or without the UAW " Su-
pervisor Poynor responded no way , this Compa-
ny has got enough money and enough power to close the
doors of this plant and write it off as a loss "
Supervisor Poynor also questioned employee Brown in
his office during February 1975 There, Supervisor Poynor
`mentioned some of the people that was working in
the fab shop and how he felt about whether they was paid
right " Supervisor Poynor then asked employee
Brown "how did [he] feel about the union " Employ
ee Brown responded "most of the jobs that [he] worked
were union jobs " Employee Brown also recalled
that later, while in the break area,
we was discussing some union benefits and
then Poynor stated that if the union came into the
plant, that the plant would shut down and they could
write this off as a Company loss
Supervisor Poynor also questioned employee Davis in
the office about his "likes and dislikes " Employee
Davis said that he "didn't have any" and Supervisor Poy-
nor then asked employee Davis "why did [he] want a union
" Employee Davis said that the union "had good
benefits " Employee Davis was later asked at work by Su-
pervisor Poynor, `had [he] changed [his] mind about the
union " Employee Davis said "no" and Supervisor
Poynor "asked [him] was there anything [Poynor] could do
to make [him] change his mind " Employee Davis
said `no "
Supervisor Poynor attempted to discuss the union with
employee Pierce during March 1975, shortly before the
third election Supervisor Poynor told employee Pierce
" I know you're against the union " Employee
Pierce did not respond Supervisor Poynor "said we didn't
need a union " Employee Pierce responded that he "didn't
want to discuss the union with the company " Later,
Supervisor Poynor apprised employee Pierce " the
company was losing money every month and if the union
came in the company would be shut down and put off on
the tax 11 23
Supervisor Nowlin told employee Powell a few weeks
prior to the third election that "if the union did come in
we would probably lose some of our privileges that we
had now " Supervisor Nowlin also apprised employee
Williams "that dust because the union would be in
didn't mean we would get anything out of it, and that we d
probably lose some of the benefits and privileges we had
now, and that if the union got in and we went on strike that
23 As noted above Supervisor Poynor did not testify at the hearings be
fore me
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they could bring people in for our jobs-to take over our
jobs "
In addition, Supervisor Nowlin observed employee Jesse
Banks, a umon supporter, talking to an employee Supervi-
sor Nowlin asked employee Banks, "what he was talking
about and Jesse didn't say anything " Supervisor
Nowlin told employee Banks "to get out of our area " Su-
pervisor Nowlin later stated to employees in his area
if Jesse [Banks] had been talking for the company
he could have stayed in the area, and that he
[Nowlin] knew what [Banks] was talking about, so he
had to run him off
Supervisor Cole questioned employee Robbins shortly
before the third election Supervisor Cole asked employee
Robbins if he had ever worked in a plant with a union
before " Employee Robbins said "no " Supervisor
Cole warned " if the union comes in things will
be different, like times coining to breaks , they could
tighten down on it , get stricter , they wouldn't
accept excuses and they give you a set amount of
warnings and then you are discharged " Supervi-
sor Cole also questioned employee Davis "how did [he] feel
about the union " Employee Davis stated " I think it
would be a nice thing to have in the Company " Supervisor
Cole then asked "why " Employee Davis said, "it would be
better benefits and more money " And, Supervisor Morris
questioned employee Gilbert "how [he] felt about the
union" shortly before the third election Employee Gilbert
revealed that he "supported the union " Supervisor Morris
then related an incident to employee Gilbert how, in the
past, Morns "ran off" a union representative from his
home
That such interrogations and threats by management
representatives violate Section 8(a)(l) of the Act is clear
Cf , United States Rubber Co v N L R B, 384 F 2d 660,
663-664 (C A 5, 1968), N L R B v Sunnyland Packing Co,
369 F 2d 787, 789-790 (C A 5, 1966), NLRB v Camco
Inc, 340 F 2d 803, 804-807 (C A 5, 1965), Hendrix Mfg
Co v NLRB , 321 F 2d 100, 103-106 (C A 5, 1963) As
the United States Court of Appeals for the Fifth Circuit
has stated, the controlling "test is whether [such conduct]
tends to be coercive " and "a few questions may be
coercive if there is even slight evidence of threats "
N L R B v Camco, Inc, supra, 340 F 2d at 804-805 The
credible evidence of record shows that management's re-
peated warnings and interrogations "took the matter be-
yond innocuous inquiry and into the realm of unlawful
interference " N L R B v Harbison Fischer Mfg Co, 304
F 2d 738, 739 (C A 5, 1962) Employees often were singled
out for private interrogations, given no assurances against
reprisals, and threatened with discharge, plant closedown,
and other reprisals if they chose union representation This
was not permissible free speech under Section 8(c) of the
Act, as Respondent contends Management engaged in
coercive conduct proscribed by Section 8(a)(1) when Su
pervisor Pilgrim privately interrogated employees McCarty
and Foster about their umon sentiments Supervisor Pil
grim, at the same time, solicited the assistance of employee
McCarty in resisting the Union's campaign, created the
impression that employee union activities were under sur-
veillance by management, promised economic benefits to
employees "if the Union is voted out", and threatened
union supporters with discharge and loss of benefits "if the
Company wins " Such conduct plainly tends to interfere
with employee rights protected in Section 7 of the Act and
is therefore violative of Section 8(a)(1) of the Act
Equally violative of Section 8(a)(1) are the private inter-
rogations of employees by Supervisor Poynor As stated,
Supervisor Poynor privately questioned employees Shurlds,
Brown, Davis, and Pierce about their union sentiments In
addition, Supervisor Poynor solicited "grievances" from
employees, warned employees that "this Company has got
enough money and enough power to close the doors of this
plant and write it off as a loss", threatened employees that
"if the union comes into the plant, that the plant would
shut down ", asked employee Davis if there "was any-
thing [Poynor] could do to make [Davis] change his mind
" about the Union, and created the impression that
employee union activities were under surveillance by man-
agement
Also coercive were the related acts by Supervisors Now
hn, Cole, and Morris Supervisor Nowlin warned employ
ees Powell and Williams that they " would probably
lose some of [their] privileges that [they] had " if the
Union won Supervisor Nowlin chased employee Banks, a
union supporter, away from his work area and then told
the employees " if Jesse [Banks] had been talking for
the Company he could have stayed " Supervisor
Cole interrogated employee Robbins about his union senti-
ments and, at the same time, threatened the employee with
"stricter" work rules `if the Union comes in Supervisor
Cole also interrogated employee Davis about his union
sentiments And, Supervisor Morns interrogated employee
Gilbert about Gilbert's union sentiments and then apprised
the employee of his strong dislike for union solicitors 24
I find and conclude that Respondent, by the above con-
duct, interfered with, restrained, and coerced employees in
the exercise of the rights guaranteed them in Section 7 of
the Act, in violation of Section 8(a)(1) of the Act
D The Job Reclassifications and Wage Increases
Announced to Employees During April and December 1974,
the Extra Holidays Granted Employees During Late
November 1974, and the Threat of Loss of Benefits in
December 1974
Respondent, in its posthearing brief, states "On April
26, 1974, based on the information which had been gath-
ered and discussed, a change in labor grades for 33
employees, 23 light assemblers, and 10 winders, was au-
thorized and announced to the employees This
change resulted in approximately 30-cent-hourly increases
for each of the employees " General Counsel con-
tends that Respondent Company violated Section 8(a)(1)
of the Act by implementing and announcing this reclassifi-
ration on April 26, 1974
The pertinent legal principles were stated by the United
States Court of Appeals for the Fifth Circuit in N L R B v
24 It is undisputed and I find and conclude that Pilgrim Poynor Nowlin
Cole and Morris are supervisors under the Act
ALLIS CHALMERS CORPORATION 1215
WKRG-TV, Inc, 470 F 2d 1302, 1307-08 (C A 5, 1973), as
follows
In essence, the company argues that it cannot be fault-
ed for granting benefits to its employees when such
benefits were not motivated by an anti-union animus
We are in full agreement with the company Certainly
any rule that would prevent the granting of employee
benefits in the absence of an anti-union effect, either
intended or foreseeable, would go too far and it is not
impossible to envision a factual situation where a
grant of benefits during a campaign would be permis-
sible [Citations omitted ] But this is not such a case
A company may in its employee relations be sincerely
noblesse oblige, but its nobility of purpose and spirit
must not be anti-union motivated The union is not
put to proving the absolute of anti-unionism, but the
Examiner and Board are free to engage the ecological
atmosphere of 8(a)(1) violations The Examiner and
Board have every right to conclude that the manna
dropping from heaven were based upon fear that
sustenance would flow from unionization We cannot
ignore decisional acceleration in employee benefits
preceded by months of lethargy Lightning struck only
after the union's rod was hoisted In this case the wage
readjustments and other benefits, to say nothing of the
initial announcement of these benefits, were clearly a
counter-weight to [the union's] organizational efforts
To permit a company to time its announcement and
allocation of benefits in such a fashion would be a
great disservice to the ideal of organizational freedom
so deeply imbedded in the [Act]
And, as the Board stated in Litton Dental Products, 221
NLRB 700 (1975) (Member Jenkins dissenting)
In determining whether solicitation of grievances and
granting of benefits is a violation of Section 8(a)(1) of
the Act, the Board has traditionally looked to the tim-
ing of knowledge of the union campaign and the
granting of the benefits When the timing of the grant-
ing of benefits coincides with the origination of em-
ployee union activity, then, absent an affirmative
showing of some legitimate business reason for the
timing, it is not unreasonable to draw the inference of
improper motivation and improper interference with
employee freedom of choice [Footnotes and ci-
tations omitted ]
In the instant case, as discussed in section II, B, supra, on
April 26, 1974, the Company announced and implemented
a wage reclassification in its SDO assembly department As
a result, some 23 employees in that department received
hourly wage increases of approximately 30 cents And, on
the same day, the Company announced and implemented a
wage reclassification for some 10 "winder" employees in
another department resulting in an hourly wage increase
for them of approximately 30 cents As noted above, on the
prior day, April 25, a Board-conducted election had been
held at the Company s plant Of approximately 187 eligible
voters, 174 ballots were cast with 5 ballots cast for the IUE,
83 ballots cast for the UAW, 3 void ballots, and 86 ballots
cast against the participating labor organizations A major-
ity of valid ballots were not cast for any of the three parti-
cipating labor organizations and a runoff election would be
held Consequently, on the day prior to the announcement
of the foregoing job reclassifications and wage increases
affecting some 33 out of 187 employees, the Company was
aware that a runoff election would be held and that its
outcome, as based on the ballots previously cast, was un-
certain
It is true, as Respondent Company argues, that
management's representatives initiated the preliminary
work for these reclassifications before the representation
petition had been filed in this proceeding It is also true
that management was, throughout this period, principally
concerned with production and materials problems attend-
ing its "start up" phase in operations at East Jackson Fur-
ther, as found supra, employee Foster had complained to
Supervisor Pilgrim and Personnel Manager Cummings
about his job classification and had requested a transfer
during late 1973 or early 1974 And, Supervisors Pilgrim
and Mulletaire also had spoken with Personnel Manager
Cummings about this problem during late 1973 or early
1974 It was not until about February 22, 1974, when Cum-
nungs first sent a memorandum to the Company's engi-
neering department requesting an evaluation of the partic-
ular job classifications It was not until about March 25,
1974, when the engineering department responded with its
recommendations There was admittedly no urgency or
priority at the time attached to these recommended job
reclassifications
Accordingly, although there is ample business justifica-
tion for management's reclassification of these 33 employ
ees, there is, on this record, no adequate or ample business
explanation for the sudden implementation and announce-
ment of these benefits after weeks and months of inaction
Management attached no priority to this reclassification
problem in the past However, when it became apparent
that a runoff election would be required and the outcome
appeared uncertain, management suddenly took action As
the Fifth Circuit stated in N L R B v WKRG-TV, supra,
"We cannot ignore decisional acceleration in employee
benefits preceded by months of lethargy " And, as the
Board noted in Litton, supra, "nothing in the record indi-
cates that prior to the Union's activities Respondent had
contemplated that these changes were to be made at this
particular time" and "absent an affirmative showing of
some legitimate business reason for the timing, it is not
unreasonable to draw the inference of improper motivation
and improper interference with employee freedom of
choice
Respondent attempts to justify the timing of this imple-
mentation, asserting
On April 25, 1974, Jim Cole, the Respondent's Ware-
house and Receiving Supervisor, sent a memorandum
to his supervisor, Paul Priebus, in which he asked that
seven additional storekeepers be added in his depart-
ment (R Exh 3) In Cummings' opinion, Cole's re-
quest would be granted because a production problem
would be created unless more storekeepers were added
to handle the July inventory Based on his conversa-
tions with Pilgrim and Mulletaire, it was also his opm-
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ion that as soon as it became known that there were
openings in the store area which carried a labor grade
5, light assemblers and winders would begin to seek
transfers into these positions
Nevertheless, management's asserted concern pertaining to
employee awareness of new "storekeeper" positions for a
July inventory does not, in my view, explain the sudden
implementation of the 33 job reclassifications on April 26,
1974 Rather, on the record before me, I find and conclude
that Respondent Company, by announcing and imple-
menting the foregoing reclassification on April 26, 1974,
was motivated by an antiunion purpose and thereby violat-
ed Section 8(a)(1) of the Act
In addition, I find and conclude that Respondent Com-
pany violated Section 8(a)(1) of the Act by granting em-
ployees 2 additional holidays about November 22, 1974 As
found, supra, section II, E, during September 1974, man-
agement had determined not to grant its employees the two
extra holidays for 1974 About this time, the Charging Par-
ty Union renewed its organizational effort at the plant On
November 21, 1974, the Union distributed a pamphlet to
the employees, stating in part
Why Not A Paid Christmas Shut-down
UAW Union Members get a paid Christmas shut-
down from Christmas Eve through New Year's Day
The Union urged "Instead of firing workers the Corn
pany should start this program now " Management's
representatives admittedly received a copy of this pam-
phlet And, by memorandum dated November 22, 1974,
Plant Manager Platner apprised his staff that at 8 a in on
Monday, November 25, the employees were to be advised
that in "response to employee interest in a longer Christ-
mas holiday period, we have decided to add two additional
paid holidays to the 1974 schedule ," for December 26
and 27, 1974 Platner's memorandum pertinently notes, in
ter aha, that "our shipment plan did not allow for these
additional holidays during the Christmas period of this
year " On this record, I am persuaded that manage-
ment suddenly reversed a prior business determination and
granted its employees two additional holidays in 1974 in
response to the Union's campaign and that such conduct
was calculated to undermine and interfere with the Union's
organizational effort
As discussed in section II, F, supra, the Company also
granted job reclassifications to some 20 employees about
December 13, 1974, resulting in hourly wage increases
ranging from about 20 to 30 cents Memoranda requesting
evaluations of particularjob classifications were sent from
the Company's personnel section to its engineering section
during August 1974 Thereafter, during September 1974,
the Company's engineering section submitted to personnel
its recommendations pertaining to the various job classifi-
cations Later, in October 1974, additional requests for job
evaluations were sent by personnel to the engineering de-
partment, which were answered by the engineering section
during November 1974
Plant Manager Platner did not favor "piece meal evalu-
ations of plant job grades Platner wanted all hourly wage
jobs evaluated at one time Accordingly in December
1974, upon completion of this entire evaluation, Platner
apprised the employees that "during November 1974, a re
view was conducted of the existing labor grades" and
"changes are being implemented on December 17, 1974'
for some 10 classifications On December 13, 1974, Platner
posted a memorandum to all employees, explaining, inter
aka, that "from time to time Management of the Jackson
plant reviews the appropriateness of the current labor
grade assignments of our various jobs", these "reviews can
also be initiated by employee request through his supervi-
sor ", and for the "past few weeks we have been con-
ducting a review " The specific changes were posted
The independent recommendations made by the
Company's engineering department with respect to these
various changes show business justification and reason for
granting the requested reclassifications Further, on the
record before me, in the context of this extended organiza
tional effort, the timing of this company action does not
show unlawful purpose An initial representation election
had been held on April 25, 1974, a runoff election had
been held on May 16, 1974, and a Hearing Officer's rec-
ommendation for a further election was pending before the
Board on the Company's exceptions when the above re-
classifications were announced As noted, the third elec-
tion was not held until March 21, 1975 Under the circum-
stances, although the issue is not free from doubt, I am not
sufficiently persuaded that Respondent Company, in
granting the job reclassification on December 13, 1974, re-
sulting in hourly wage increases to some 20 employees, was
motivated by an unlawful purpose
However, as discussed in section II, G. supra, on Decem-
ber 20, 1974, after management had implemented the
above job reclassifications, management distributed a
pamphlet to its employees asserting, inter aka, "that the
union has attempted to prevent the company from making
improvements for you by complaining to the National La-
bor Relations Board", the "union will probably do it
again", and "the company received notice from the
[Board] in a case which the UAW is pressing challeng-
ing reclassification increases The Company warned
" If the union would win this case, the company may
well have to cancel these increases " The Board, under set-
tled rules, does not require that an illegally conferred in-
crease be rescinded And, under the circumstances present
here, the employees could reasonably understand
management's statement to be a threat to cancel the reclas-
sification increases if the Union were successful in the pro-
ceedings before the Board Such a threat plainly tends to
interfere with employee Section 7 rights and is therefore
violative of Section 8(a)(1) of the Act
E The Benefits Granted in 1975
As discussed supra, section II, H, during January 1975,
management announced to the employees the granting of a
5-percent wage increase and that the Company would pay
certain hospitalization premiums for the employees Plant
Manager Platner explained to the employees that this in
crease was "due to an increase in productivity and the
working together of the people there in the plant " Later,
on June 24, 1975, management announced to the employ
ALLIS CHALMERS CORPORATION
ees an across-the-board hourly wage increase of 30 cents
and "a supplement to workmen's compensation payments
to make them equal to payments under [the Company's]
disability income plan " Plant Manager Platner explained
to the employees during June 1975, "We have all come a
long way toward turning our division around and the im-
provements are significant", "Each of us can certainly take
pride in what we have accomplished", "A year has elapsed
since our last annual wage review ", and "Our contin-
ued efforts to improve our business will result in continued
wage and benefit improvements for each of us "
Howard Equitz, the Company's director of employee re-
lations, explained that the Employer "had established' a
"policy" for employee compensation "at new plants", that
"new plants would be established at the outset with a rate
schedule that was based on surveys and other informa-
tion", that the rate schedule thereafter would be "adjusted
by means of annual wage reviews " at the anniversary
date of the plant opening, that there would be "interim
reviews usually at half-annual intervals which also were
intended to produce whatever adjustments might be called
for", and that
the kind of considerations, both at the anniversaries
and in connection with the interim reviews, were area
rates, rates paid in the industry of concern, competi-
tion, and availability or non availability of employees
Equitz testified that this "procedure" or "policy" was gen
erally applied at the East Jackson plant and the pending
"organizational effort" had not affected this policy' 25
Ronald Booth, manager of employee and community re-
lations at the East Jackson plant, testified that the 5-per-
cent wage increase was granted to employees in January
1975, "to maintain our competitive situation as a result of
cost-of-living escalations and productivity increases in the
plant " Booth explained that the Company's "wages had
fallen behind those of our competitors" since the last in-
crease And, as for the June 1975 increase, Booth noted
that the Company considered Department of Labor BLS
statistics for the area, increases granted by competitors,
and cost-of-living excalations during the pertinent period
Booth noted that the Department of Labor BLS statistics
for his area show that unskilled manufacturing workers
had increases in average hourly earnings of about 7 3 per-
cent for January 1973 to January 1974 and had increases in
average hourly earnings of about 13 3 percent from Janu-
ary 1974 to February 1975 The East Jackson plant, from
July 1973 to June 1975, had increases in average hourly
earnings for its production employees of about 20 4 per-
cent, which included 8 percent in July 1974, 5 percent in
January 1975, and 7 4 percent in June 1975 26 Booth also
noted that management had assumed payment of employ-
ee insurance premiums in January 1975 in order "to be
competitive," citing the practices of other employers And,
Booth noted that the "supplement to workmen's compen-
25 Equitz cited other new plants where the Employer generally followed
this procedure
26 Cost of living increases during this same general period as reflected in
the Consumer Price Index were about 22 4 percent
1217
sation" in June 1975 was "to supplement the
workmen's compensation benefits that the State offered to
make them equal with our disability benefits "
On this record, I am not persuaded that Respondent
granted the increases and benefits during January and
June 1975 for an antiunion purpose The record shows that
the percentages of these wage increases were in general
accord with area percentage increases, that the related
benefits granted were also calculated to keep the Employer
competitive, and that the timing of these increases and
benefits was in general accord with company policy and
procedure I would therefore dismiss the allegations per-
taining to these grants of wage increases and benefits
F The Motions To Dismiss
Respondent moves to dismiss the complaint in Case 15-
CA-5438 on the ground that the unfair labor practice
charge in that case does not support the allegations of the
complaint, that the complaint is the result of improper so-
licitation by Board personnel, that a previously withdrawn
charge was improperly reinstated, and that a concurrent
representation proceeding is a bar to the complaint The
complaint, which issued on December 17, 1974, is predicat-
ed on a charge filed by UAW on September 16, 1974 The
charge generally avers that Respondent violated Section
8(a)(1), (3), and (4) of the Act The charge recites
On or about August 22, the above-named employer
[Respondent], by its officers, agents, and representa-
tives, discharged Robert Griffin and 0 C Davis, its
employees, because of the employees' membership in
and activities on behalf of [UAW]
By the above and other acts, the above-named em-
ployer has interfered with, restrained, and coerced em-
ployees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act
The complaint alleges, in sum, that Respondent violated
Section 8(a)(1) of the Act by maintaining in effect an un
lawful no-solicitation rule, by granting benefits to employ-
ees on or about April 26, and by interrogating, soliciting,
threatening, and otherwise coercing employees during
April and May 1974 27
The Regional Director on October 29, 1974, advised the
parties that he would not issue a complaint in Case 15-
CA-5438 with respect to the discharges of employees Grif-
fin and Davis, as charged The Regional Director noted
"Such refusal, however, does not affect the 8(a)(1) allega
tions of the charge which will be the subject of a complaint,
absent settlement " And, as stated, the Regional Director
subsequently issued the above complaint in Case 15-CA-
5438 on December 17, 1974 28
27 Respondent notes that on May 13 1974 UAW had filed a charge in
Case 15-CA-5263 alleging that Respondent violated Sec 8(a)(1) of the Act
and that on June 19 1974 the charge was withdrawn in that case See Resp
Exh I and attachments
28 At the hearing counsel for Respondent acknowledged that there was
no contention being made that the Regional Director in issuing the above
complaint violated the 6 month limitation period as provided in Sec 10(b)
of the Act Further counsel for Respondent acknowledged that there was
no independent evidence to be presented of improper soiicitation by
Board personnel other than the charges and pleadings
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The controlling principles were restated by the fifth cir-
cuit in Texas Industries, Inc v N L R B, 336 F 2d 128, 132
(C A 5, 1964), as follows
Section 10(b) of the Act provides
Whenever it is charged that any person has engaged
in or is engaging in any such unfair labor practice,
the Board shall have power to issue a com-
plaint stating the charges in that respect
It is established that this section precludes the Board
from issuing a complaint on it own initiative, and that
a charge is a prerequisite to the institution of proceed
rags before the Board N L R B v Kohler Co, 7 Cir ,
1955, 220 F 2d 3 However, the charge is not a formal
pleading, and its function is not to give notice to the
respondent of the exact nature of the charges against
him NLRB v Fant Milling Co 1959, 360 U S 301,
79 S Ct 1179, 3 L Ed 2d 1243, Consumers Power Co
v NLRB , 6 Cir , 1940, 113 F 2d 38 This is the func-
tion of the complaint The charge rather, serves merely
to set in motion the investigatory machinery of the
Board It is largely for the benefit of the Board, not
the respondent, so that it may intelligently determine
whether and to what extent an investigation is war-
ranted Consequently, the Board has considerable lee-
way to found a complaint on events other than those
specifically set forth in the charge, the only limitation
being that the Board may not get "so completely out-
side the charge that it may be said to be initiating
the proceeding on its own motion "NLRB v
Kohler Co, supra See also N L R B v Reliance Steel
Products Co, 5 Cir , 1963, 322 F 2d 49, NLRB v
Raymond Pearson, Inc, 5 Cir, 1957, 243 F 2d 456
Applying these principles here, I find and conclude that
Respondent's motion to dismiss the complaint in Case 15-
CA-5438 should be denied The charge in that case makes
reference to the alleged discriminatory discharge of two
employees during the Union's organizational effort The
charge also generally states "By the above and other acts,
[Respondent] has interfered with, restrained, and coerced
employees in the exercise of" their Section 7 rights The
complaint in that case alleges acts of interference, restraint,
and coercion which occurred during the Union's organiza-
tional effort On this record, the charge sufficiently sup-
ports the allegations of the complaint As the court stated
in N L R B v Kohler Co, 220 F 2d 3, 7 (C A 7, 1955)
So long as the Board entered the controversy pursuant
to a formal charge, it may allege whatever it finds to
be a part of that controversy But if it gets so com-
pletely outside of the situation which gave rise to the
charge that it may be said to be initiating the proceed
ing on its own motion, then the complaint should fall
as not supported by the charge
Here, the Regional Director, in issuing the above com-
plaint, has not gone "so completely outside of the situation
which gave rise to the charge that [he] may be said to be
initiating and proceeding on [his] own motion " Fur-
ther, by issuing the foregoing complaint, the Regional Di-
rector did not improperly reinstate a previously withdrawn
charge Instead, he reasonably predicated his allegations
on a subsequently filed charge 29 And see N L R B v Cen
tral Power & Light Co 425 F 2d 1318 (C A 5, 1970)
Respondent also moves to dismiss the complaints in
Case 15-CA-5673 and 15-CA-5732 because the com-
plaints bear no relationship to the allegations of the re-
spective charges filed by UAW and because these proceed-
ings were improperly initiated by Board personnel I ruled
at the hearing that the two charges involved sufficiently
support the allegations of the respective complaints I ad
here to that ruling upon reconsideration Further, on the
entire record, I reject Respondent's assertion that Board
personnel improperly initiated these two cases 30 These mo-
tions are therefore denied
CONCLUSIONS OF LAW
1 Respondent Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
2 Charging Party Union is a labor organization within
the meaning of Section 2(5) of the Act
3 Respondent Company, in an attempt to discourage
employee support of the Union, violated Section 8(a)(1) of
the Act by promulgating and maintaining in effect a no
solicitation rule prohibiting employee solicitation on corn
pany property, by coercively interrogating employees
about their union interests, by threatening employees with
discharge, loss of benefits, plant closure, loss of privileges,
stricter work rules, and related reprisals, by creating the
impression that employee union activities were under sur-
veillance by management, by soliciting employee assis-
tance in opposing the Union, by promising employees a
wage increase and other benefits, by soliciting employee
grievances, by threatening employees with disparate en-
forcement of its rules proscribing solicitation during work-
ing time, by announcing and implementing job reclassifi-
cations on April 26, 1974, by granting employees two extra
holidays in November 1974, and by threatening employees
with cancellation of job reclassification increases if the
Union prevails in proceedings before the National Labor
Relations Board
29 Counsel for Respondent also argues that the concurrent representation
case bars the complaint in Case 15-CA-5438 Counsel has failed to show
why the Board should be precluded in a case such as this from litigating
unfair labor practice conduct which is also the subject of a concurrent rep
resentation case
30 Counsel for Respondent argues in his posthearing brief that in Case 15-
CA-5673 affidavits of various witnesses which were taken by Board person
nel are dated between April 22 and 28 while the charge in that case was not
filed until April 29 1975 Counsel for Respondent also argues that another
affidavit in that case taken after the charge was filed shows that the sole
purpose of its being taken was to discover evidence concerning
Respondents objections to the March 21 election and not to discover any
evidence concerning the allegations of the charge filed in this case I note
however that other charges filed by UAW pertaining to this organizational
effort were pending before Board And assessed in the context of this entire
organization campaign and the series of charges and complaints resulting
therefrom as well as the concurrent representation case resulting in three
elections it cannot reasonably be said here that Board personnel initiated
these proceedings on their own motion See N L R B v Central Power &
Light Co supra
ALLIS CHALMERS CORPORATION 1219
4 Respondent did not commit other unfair labor prac-
tices as alleged in the consolidated complaints filed in this
proceeding
5 The unfair labor practices found herein affect com-
merce within the meaning of Section 2(6) and (7) of the
Act
THE REMEDY
Respondent Company will be directed to cease and de-
sist from engaging in the unfair labor practices found and,
in view of the extensive and continuing nature of its coer-
cive conduct, from in any other manner interfering with,
restraining, or coercing employees in the exercise of their
Section 7 rights Further, Respondent will be directed to
post the required notices
(a) Post at its office and facilities in East Jackson, Mis-
sissip3pi, copies of the attached notice marked "Appen-
dix " 2 Copies of said notice, on forms provided by the
Regional Director for Region 15, after being duly signed
by Respondent's authorized representative, shall be posted
by Respondent immediately upon receipt thereof and be
maintained 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material
(b) Notify the Regional Director for Region 15, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith
IT IS FURTHER ORDERED that the consolidated complaints
in this proceeding be dismissed insofar as they allege viola
tions of the Act not specifically found herein
ORDER 31
Upon the basis of the foregoing findings of fact and con-
clusions of law and upon the entire record in the case,
Respondent Allis Chalmers Corporation, East Jackson,
Mississippi, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Promulgating and maintaining in effect a no-solicita-
tion rule which prohibits employee solicitation on compa-
ny property
(b) Coercively interrogating employees about their
union interests
(c) Threatening employees with discharge, loss of bene-
fits, plant closure, loss of privileges, stricter work rules, or
related reprisals in an attempt to discourage employee sup-
port of International Union, United Automobile, Aero
space and Agricultural Implement Workers of America,
UAW, or any other labor organization
(d) Soliciting employee grievances in an attempt to dis-
courage employee support of said Union or any other labor
organization
(e) Threatening employees with disparate enforcement
of company rules proscribing solicitation during working
time
(f) Announcing or implementing fob reclassifications or
granting employees additional holidays in an attempt to
discourage employee support of said Union or any other
labor organization
(g) Threatening employees with cancellation of job re-
classification increases if said Union prevails in proceed-
ings before the National Labor Relations Board
(h) Creating the impression that employee union activi-
ties are under surveillance
(i) Soliciting employee assistance in its opposition to
said Union or any other labor organization
0) Promising employees a wage increase or other bene
fits in an attempt to discourage employee support of said
Union or any other labor organization
(k) In any other manner interfering with, restraining, or
coercing employees in the exercise of their Section 7 rights
2 Take the following affirmative action which is neces-
sary to effectuate the purposes and policies of the Act
31 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 it Sec
102 48 of the Rules and Regulations be adopted by the Board and become
its findings conclusions and Order and all objections thereto shall be
deemed waived for all purposes
32 In he event that the Board s Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading Posted by
Order of the National Labor Relations Board shall read Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which both sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that Allis Chalmers Corporation has violated the
National Labor Relations Act and has ordered us to post
this notice We therefore notify you that
WE WILL NOT promulgate or maintain in effect a no-
solicitation rule prohibiting employee solicitation on
company property
WE WILL NOT coercively interrogate employees about
their union interests
WE WILL NOT threaten employees with discharge, loss
of benefits, plant closure, loss of privileges, stricter
work rules, or related reprisals in an attempt to dis-
courage employee support of International Union,
United Automobile Aerospace and Agricultural Im-
plement Workers of America, UAW, or any other la-
bor organization
WE WILL NOT solicit employee grievances in an at-
tempt to discourage employee support of said Union
or any other labor organization
WE WILL NOT threaten employees with disparate en
forcement of company rules proscribing solicitation
during working time
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT announce or implement job reclassifi-
cations or grant employees additional holidays in an
attempt to discourage employee support of said Union
or any other labor organization
WE WILL NOT threaten employees with cancellation
of job classification increases if said Union prevails in
proceedings before the National Labor Relations
Board
WE WILL NOT create the impression that employee
union activities are under surveillance
WE WILL NOT solicit employee assistance in our op-
position to said Union or any other labor organiza-
tion
WE WILL NOT promise employees a wage increase or
other benefits in an attempt to discourage employee
support of said Union or any other labor organization
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their rights guaranteed in Section 7 of the National
Labor Relations Act
ALLIS CHALMERS CORPORATION