Emerson Electric Co.

National Labor Relations Board - Board Decisions

Jun 26, 1969

177 N.L.R.B. 75 (N.L.R.B. 1969)

EMERSON ELECTRIC COMPANY
Emerson Electric Company , and International Union,
Allied Industrial Workers of America , AFL-CIO.
Cases 9-CA-4528, 9-CA-4726, and 9-RC-7658
June 26, 1969
DECISION , ORDER, AND
CERTIFICATION OF RESULTS OF
ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On February 24, 1969, Trial Examiner Stanley N.
Ohlbaum issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in certain unfair labor practices in violation
of Section 8(a)(1) of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. He also found that the Respondent had
not engaged in certain other unfair labor practices in
violation of Section 8(a)(1) and (3) of the Act, and
recommended that such allegations of the complaint
be dismissed, that the objections to the election be
overruled and the results of the election be certified,
as further set forth in the attached Decision.
Thereafter, the General Counsel, the Respondent,
and the Charging Party filed exceptions and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner 's Decision , the exceptions and the briefs,
and the entire record in these cases, and hereby
adopt the findings, conclusions, and
recommendations of the Trial Examiner with the
modification noted below.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Emerson
Electric Company, Russellville, Kentucky, its
In the light of all the evidence relating thereto, we adopt the Trial
Examiner's dismissal of the complaint allegation based on an alleged
statement by Personnel Manager Black to the effect that he would regard
mere union talk by certain employees during working time to be
solicitation prohibited by Respondent's rule However, in so doing , we find
it unnecessary to pass upon the Trial Examiner's rationale that such
remark , if made, would in any event not be unlawful
75
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified, that a majority of the valid
votes has not been cast for International Union,
Allied Industrial Workers of America, AFL-CIO,
and that said labor organization is not the exclusive
representative of the employees in the unit found
appropriate, within the meaning of Section 9(a) of
the Act, as amended.
MEMBER JENKINS, dissenting in part:
I do not agree with my colleagues adoption of the
Trial Examiner's conclusion that employee James
Martin was discharged for nondiscriminatory
reasons.
Martin was allegedly discharged for giving a
woman employee a pair of gloves for which he
should have charged her 83 cents. Respondent
conceded that but for this one incident which
precipitated his discharge, Martin had been a good
employee. The record discloses that not only had
Martin been active on behalf of the Union but that
Respondent's Personnel Manager Black, who
terminated him, was aware of his union activities
and admittedly testified that . . . "And I went on
and told her [Ruth McGuire, Martin's sister] that I
had picked up information that her brother James
Ralph Martin was active in the union."' There is
also testimony in the record that foremen had given
similar gloves without charge to women employees
on other occasions. Nor can it be ignored that
Respondent sought to restrict union solicitation and
that in the process it restricted Martin, a tool crib
attendant, from leaving the toolroom without
informing his foreman where he was going and how
long he would be. When the above facts are
considered in their totality, I am not persuaded that
Martin was in fact discharged for his minor
dereliction on the job but conclude that the incident
was seized on as a pretext for his discharge.
Accordingly, I would find that he was
discriminatorily discharged.
'In light of Personnel Manager Black 's admission , I find incredible the
Trial Examiner 's conclusion (TXD) that Respondent had no knowledge of
Martin' s union activity.
TRIAL EXAMINER'S DECISION
1. PRELIMINARY STATEMENT; ISSUES
STANLEY N . OHLRAUM, Trial Examiner: This
consolidated proceeding' under the National Labor
Relations Act as amended (29 U.S.C. Sec. 151, et seq.;
'The charge in Case 9-CA-4528 was filed by the above Union on
November 21, 1967 , resulting in a complaint ("Complaint No. I") issued
on March 7, 1968, by the National Labor Relations Board 's Regional
Director for Region 9 (Cincinnati , Ohio) acting on behalf of the General
177 NLRB No. 4
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Act") was tried before me in Bowling Green , Kentucky,
on October 8-15, 1968, with all parties participating
throughout. The pleadings and referred matters' present
issues as to whether Respondent Employer violated: (1)
Section 8(a)(1) of the Act through (a) coercive
interrogation of employees as to their union affairs, (b)
attempting to enlist employees to report on organizational
activities of fellow-employees, (c) surveillance over
employees' lawful organizational activities, (d) creation of
the impression of such surveillance, (e) imposing
discriminatory and otherwise improper limitations upon
employees' lawful organizational speech and other
activities, (f) improper promises of economic benefits to
employees in restraint of their exercise of lawful
organizational rights , and (g) threats of economic harm or
detriment to employees in restraint of their exercise of
their rights under the Act; (2) Section 8(a)(3) of the Act
by discharging and failing to reinstate employees (a)
James Martin and (b) Sally Blackford because they
exercised rights (membership in and lawful activities on
behalf of the Union) guaranteed to them under the Act;
and (3) requirements of the Act, in various respects, in
activities preceding the April 19, 1968, Board-conducted
union representation election.
Subsequent to the hearing, time having been allowed
and upon application twice extended for that purpose,
briefs were filed by the parties. Having carefully
considered these , together with the entire record and the
demeanor of the witnesses as observed by me during their
testimony at the trial, I make the following:
FINDINGS AND CONCLUSIONS
Ii. PARTIES ; JURISDICTION
Respondent Employer, a Missouri corporation engaged
at Russellville, Kentucky, and elsewhere in the United
States in manufacture and sale of electrical products,
during the representative 12-month period immediately
preceding issuance of each of the complaints , sold and
shipped directly in interstate commerce from its
Russellville plant to places outside of Kentucky, goods
and merchandise valued in excess of $50,000; during the
same periods, Respondent purchased and received
shipments at its Russellville plant , directly in interstate
commerce from places outside of Kentucky, parts,
supplies and equipment valued in excess of $50,000.
I find that at all material times Respondent has been
and is an employer engaged in commerce and in
operations affecting commerce, within the meaning of
Section 2(2), (6), and (7), and the Union a labor
organization within the meaning of Section 2(5), of the
Act; and that assertion of jurisdiction here is proper.
Counsel of the Board The charge in Case 9 -CA-4726 was filed by the
Union on May 15, 1968 , and resulted in a complaint ("Complaint No 2")
issued and consolidated with the earlier complaint by the same Regional
Director on July 25, 1968 One or the other or both of the complaints were
amended on July 25 and August 6, 1968, and at the trial, and various
portions of each of the complaints were withdrawn at the trial. On
September 9, 1968 , the Regional Director further consolidated for trial
with these cases related issues arising out of the Union 's April 25, 1968,
objections timely filed to a Board-conducted union representation election
among Respondent's employees on April 19 , 1968 (pursuant to the parties'
stipulation for certification upon consent election , approved on April 3,
1968) resulting in a vote of 539 against and 400 in favor of union
representation out of 1 ,007 eligible voters in an appropriate production and
maintenance proposed bargaining unit
"'Referred matters" are the union election Representation case issues
consolidated for hearing here, as explained in In I, supra
ill. ALLEGED VIOLATIONS OF SECTION 8(A)(1) AND (3)
A. Background
Respondent operates approximately 40 electrical
products plants in the United States. The factory here
involved is located in Russellville, Kentucky, a community
with a population of around 7,000. It employs 900-1000
persons, about 55 percent of them females. Its primary
product is hermetic motors for the refrigeration and
air-conditioning industry, for direct sale east of the
Mississippi . Employee turnover at this plant has been
about 2 1/2 percent (i.e., around 20-25 employees) per
month.
Union organizational activity at Respondent's
Russellville plant occurred in the spring of 1966 and
started again in the late summer of 1967. It is in effect
alleged (and denied) that Respondent on the latter
occasion embarked upon a series of repressive measures in
violation of its employees' rights guaranteed by the Act,
until the Board-sponsored union election in the following
spring (April 19, 1968), which the Union lost, allegedly in
consequence thereof. The entire series of events here for
consideration occurred between the late summer of 1967
and the early spring of 1968. To promote clarity, they will
be treated chronologically.'
B. Chronology of Events, with Findings and
Rationale
1. August 1967
a. August 21-22, 1967: Plant Manager Johnson's
speech to all employees concerning solicitation
It is alleged that commencing in August, 1967,
Respondent violated Section 8(a)(1) of the Act in various
ways. Initially it is complained' that around August 22,
Respondent's Plant Manager Johnson, in addressing
employees assembled in groups on its premises at its
request and expense, unlawfully restricted employees'
rights by threatening them with discharge for discussing
the Union amongst themselves on company time or for
distributing Union literature on company property; and by
threatening to move the plant out of Russellville if the
Union was selected as the employees' bargaining
representative. Undisputed proof establishes that on
August 21 or 22 Respondent's then Plant Manager
Johnson addressed assemblages of plant employees on
company time in the plant. Exactly what he said is
disputed, Respondent contending that Johnson limited
himself to a written script which he read without
deviation, while General Counsel contends that Johnson
departed from the script in substantial respects. In the
aspects here material , the script, which the credible
evidence establishes either was read by Johnson or at least
formed the core of his remarks to the employees on this
occasion, recognizes the fact that a drive is under way to
unionize the plant; questions the motives of the Union's
outside organizers; cautions employees against union
propaganda and organizing methods, and perhaps indulges
'The complaints , as amended, comprise no less than 44 separately
numbered paragraphs and subparagraphs alleging specific instances of
violations of the Act Since it is believed that to consider so large a
number of allegations in the scattered sequence in which alleged , or even
by mixed-date subject -matter groupment , would be unduly complicated or
confusing , chronological treatment is utilized here This treatment has the
added advantage of recreating the stream of events in its actual flow
'Complaint No. 1, pars. 5(a)(i) and 5(a)(u)
EMERSON ELECTRIC COMPANY 77
in some counterpropaganda; reminds employees of their
past "steady progress" without a union at the plant and
that "I [Johnson] do not believe that you would, in the
future, make more progress with a union than without a
union"; points out that unionization is not automatically
synonymous with wage raise, and that union campaign
promises may be extravagant and may even eventuate in a
strike; cautions that unionization could result in change of
atmosphere from that of a pleasant factory to a warring
camp, so as to reduce the efficiency and "success" of the
plant; points out to employees that "your future and the
success are closely tied up with the success of the
International Union which is based in Washington, D. C.,
who is trying to organize this plant [and] is only remotely
concerned with this plant"; calls attention to union
members' liability to lawsuits to defray union-imposed
fines; reminds employees of their right to withdraw from
the union, while pointing out that signing or not signing a
union card would have no effect on their continued
employment; and concludes that "We hope that you will
consider all of these reasons, and if you have more
questions of concern that you will bring them to us before
you sign a union card." Johnson's script also "re-state[s] .
our longstanding rule" about solicitation, including
signing union cards, "during working time within the
plant" as being that "We do not permit solicitation of any
type during working time"; and invites employees solicited
in violation of this rule to call it to the attention of
management so that it could be stopped.
Respondent's Solicitation Rule
The "longstanding rule" on the subject of solicitation to
which Johnson referred, first posted in the plant in
February 1966, and at various times reposted at sundry
bulletin board locations throughout the plant, as shown
below, was as follows:
NOTICE TO EMPLOYEES
Many of our employees have complained that they are
being bothered and intimidated by other employees who
are attempting to get them to sign union cards during
working time.
Every employee has the right to his own opinions and
beliefs, and this right will not be interfered with no
matter what his belief may be. We will not tolerate any
activity contrary to this in any respect during working
time. We all have a job to do, and in order to
accomplish this job we must work together in an
atmosphere of harmony and cooperation which does not
include badgering, intimidation, solicitation or coercion
in any respect.
We are sure that we can count on your cooperation.
/s/ Ed Johnson.
Although there was testimony by a number of General
Counsel's witnesses, plant employees, that they did not
personally see or could not recall seeing this posted rule,
many were careful to stipulate that they could not state
whether or not or when or where the rule was or may
have been posted, or otherwise to limit their professed
unfamiliarity with the rule; while the testimony of other
General Counsel witnesses appears to indicate awareness
of the rule. Thus, General Counsel witness Polly
Goodman, while agreeing there were bulletin boards in the
plant, admitted awareness of only two, including one "on
the side that the women set on in the lunch room... .
There's one on the men's side. But I never look at it... .
And then I don't know about any more. . . . Not that I
seen." General Counsel witness Lucille Austin, likewise
denying having seen the aforequoted notice posted on any
plant bulletin board, testified that she "looked at" two of
the bulletin boards "regularly" or "frequently" and a
third "once in awhile," but was careful to point out that
"I haven't seen one.... Well, I just didn't see it. . . . I
did not see one." However, after first denying awareness
of such a rule "before August 1967" Austin confessed she
was familiar with the rule in 1966. Another General
Counsel witness, Ida Harris, testifying that she could not
"remember seeing anything like this [posted notice
regarding solicitation] [on] the only two [bulletin boards]
that I notice anywhere," stipulated that "I mean maybe
there's maybe more somewhere else. But that's the ones
that I go by each day.... Well, as far as I can remember
I've never seen anything like this anywhere in the plant...
I've never been all through the whole plant to notice
everything.... [There are] only two [bulletin boards] that
I pay any attention to." General Counsel witness Vera
Hargrove also conceded that her bulletin board
observation was limited to the bulletin board on the
women's side of the lunchroom - "I look on there for
our production [figures] .. . "I look at the production
every day" - and another "in the winding room that I
look at occasionally"; and likewise agreed that she was
not "telling us that it was not on the bulletin board," but
merely that "I have not seen it myself." General Counsel
witness James Martin also limited his nonobservance of
the Notice to the two bulletin boards which he looked at,
one outside the toolroom, which he looked at "every day
just about," and the other on the men's side of the
lunchroom, which he "looked at . every once in
awhile"; and on cross-examination he likewise conceded
that "I don't know whether it was posted or not," but
only that "I said I didn't see it,"' while also conceding
that he "knew . . . that there was a rule at the Company
against soliciting during working time. . . that was the
rule that Ed Johnson, the Manager of the Plant, posted
back in 1966." With respect to Respondent's aforequoted
notice regulating solicitation, General Counsel witness
Toni Pulley testified that "I have seen this on the bulletin
board.... I saw it on the bulletin board on the right side
of the lunchroom . . . . The women's side more or less,"
but that to the best of her recollection she had last seen it
there about 15 months ago (i.e., around summer-fall
1966). She also testified she had seen still "another notice
that pertains to solicitation" on a bulletin board,
conceding further that she had not looked at bulletin
boards in the plant other than the one in the lunchroom,
"where they post our daily production. And that's the
reason I look at it."
Respondent's Personnel Manager Black, corroborated
in essence by its Plant Manager Johnson, testified that the
aforequoted "Notice" regulating solicitation was posted
on six or eight bulletin boards throughout the plant,'
originally in February 1966, and thereafter reposted once
only in May 1966 upon fading, although not thereafter
maintained on all bulletin boards.
'General Counsel's motion , on which decision was reserved at the trial,
to strike from the record evidence pertaining to Martin 's alleged conviction
or convictions is denied. I nevertheless credit Martin's testimony in this as
well as other aspects as described below
'Respondent's Personnel Manager Black testified there are eight
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the indicated situation and upon the record as a
whole, I find that the aforequoted "Notice to Employees"
regulating solicitation was posted and thereafter reposted
in May 1966; and that it was on at least one of
Respondent' s main bulletin boards, namely the one on the
women's side of the plant lunchroom, at least as recently
as the summer or fall of 1966; and that it was that
"Notice to Employees" (Resp. Exh 4) to which
Respondent's Plant Manager Johnson alluded and which
he described with substantial accuracy in the written script
(Resp. Exh. 3) of his speech to plant employees on August
21 or 22, 1967
Returning to that aspect of Johnson's speech to
assembled plant employees on August 21 or 22, 1967
dealing with solicitation, Johnson - then the Russellville
Plant Manager and now Assistant to Respondent's
Executive Vice President at St. Louis - swore
unequivocally that he in no way deviated from the written
script, which he delivered to six groups, covering three
shifts, of employees, 900 to 1,000 in all. On the other
hand, the testimony of several of General Counsel's
witnesses indicates that he did deviate from the script
Thus, according to "B" shift (3:30 p.m.-midnight)
employee Austin, Johnson told a 150-employee group of
that shift that employees "could not solicit on Company
time" and "if. .. caught. . . they would not stop at the
front office, they would go out the front door." According
to Austin, Johnson limited his restriction against
solicitation to "Company time," without, however,
explaining what he meant by that term. Another "B" shift
employee, Polly Goodman, testified that Johnson "told us
that we would be fired if we were caught soliciting on
Company time," but that she could not "remember"
whether he "explain[ed] what he meant by Company
time." Employees Ida Harris and Vera Hargrove similarly
testified that in his talk to their group Johnson stated that
there would be "no soliciting on Company time."
However, employee James Martin , also testifying as
General Counsel' s witness , swore that what Johnson said
was "that they didn't want the cards signed, didn't want
people working to get the cards signed, to get the cards
signed in the plant during working hours. . . anyone
caught doing so during working time would be
immediately dismissed. . He [Johnson] said working
time , during working time."' "A" shift employee Margie
Miller testified that Johnson "said if we handed out
Union cards, to do it on our own time . . . . we cannot
hand out cards and get cards signed on Company time"
while "[we] were working," apparently adding that "If
you are going to work for the Union, get out and work
outside the factory."
In the far from satisfactory state of the record,
considering among other things the well-known foibles of
human memory of precise words heard in the past, and
the defective and to an extent deviant recollections of the
witnesses of General Counsel, who bears the burden of
proof, I find myself unpersuaded that Johnson's words to
the employee assemblages on August 21 or 22, with
open - faced plant bulletin boards of which the "main bulletin boards in the
plant" are considered to be the two in the lunchroom , and a locked
"Fact-Rumor Board "
'Martin then stated he could not "remember exactly" whether Johnson
said "Company time" or "working time," although Respondent 's counsel
- together with the Tnal Examiner, in the given context - draws no
distinction between the two When the portion of Johnson' s August 21
script (Resp Exh 3 ) dealing with solicitation was read to Martin at the
tnal, he conceded it at least "sound[s ] pretty close to what he [Johnson]
said "
regard to solicitation, were otherwise than in the written
script (Resp Exh. 3) which he read or from which he
spoke. I find that on the occasion in question Johnson
informed employees that - in accordance with
Respondent's established existing rule (Resp. Exh. 4)
theretofore or then posted - solicitation of union cards
"during working time" was and would not be permitted.
A rule forbidding union solicitation by employees during
working time in any plant area is presumptively valid.
Stoddard-Quirk Manufacturing Co., 138 NLRB 615.
Inasmuch as no valid reason has been shown to overcome
the force of this presumption so far as the rule itself is
concerned," it is concluded that Respondent's rule as
found and the reminder thereof by its then Plant Manager
Johnson were in and of themselves not unlawful.
b. August 21-22, 1967: Plant Manager Johnson's
speech to all employees, concerning threats to close
or move Russellville plant in event of unionization
Returning again to Plant Manager Johnson's August 21
or 22 speech to groups of employees, it is necessary to
consider whether or not he strayed from the literal script
in respects other than the matter of solicitation during
working hours which has just been discussed; specifically,
whether he threatened that Respondent would move its
Russellville 'plant if the employees selected the Union for
collective bargaining . No less than four employees
testified - to my view, creditably - that he did; while, as
will be shown, the testimony of Johnson himself - who
on the whole impressed me as a man to be believed -
does not shut it out.
According to "B" shift employee Austin, Johnson
stated that "he [Johnson] had bought his home there [i.e.,
Russellville] and he sure did like to live here [i.e.,
Russellville], and he sure would hate to move off and
leave it. Then he said they had 39 Emerson plants and
they could do with 38.""
General Counsel witness Polly Goodman, a "B" shift
employee, testified convincingly that, on the occasion in
question, Johnson, after indicating that he was aware of a
budding Union organizational campaign, "told us how
many plants that Emerson had, and he [Johnson] said that
he had bought his home here and he liked living here, and
he would hate to move. He said that Emerson could do
without Russellville."
According to "B" shift employee Vera Hargrove, a
highly impressive General Counsel witness, Johnson "said
that Emerson had 39 plants and they could do with 38 just
as well, and that he liked Russellville, liked the people in
Russellville , and that he would hate to leave. . . I
remember those words exactly. I remember those words
exactly.... It's just that that stuck in my mind "'°
'The matter of whether or not the rule was indiscriminately as
distinguished from discriminatorily enforced in actual operation, is
considered below, in connection with specific instances of its application
'On cross-examination , Austin conceded the possibility that Johnson's
remark about the 39 and 38 plants might have been made at some meeting
other than that on August 21 Austin was professedly unable to recall the
context of Johnson 's alleged remark concerning the 39 and 38 plants
"On cross-examination, Mrs Hargrove conceded a degree of uncertainty
as to the date of the speech in which Johnson made the remarks she thus
attnbuted to him Since , however, Johnson himself denied making any
other speech to assembled employees in August, and only one extremely
brief one in September on an unrelated subject (announcement of plant
wage increase), this would seem to render Mrs Hargrove ' s perhaps
overconscientious degree of doubt of precise date to be of no practical
significance , particularly considenng other independent testimony
adequately establishing the occasion and date.
EMERSON ELECTRIC COMPANY
General Counsel witness James Martin testified that
Johnson on this occasion stated " that they didn ' t want a
Union in the Russellville plant and they would do
everything in their power to keep it out ."" Margie Miller,
an "A" (i.e., day) shift employee , testified that after
indicating awareness of a union organizational campaign
and questioning the motives of one of its organizers and
the economic obligation or danger flowing from signing a
union card , Johnson , red in face and chewing a cigar,
struck the desk , exclaiming , "You've got this whole
factory scared . . . it's got me scared , too.... if the Union
came in ... we do not have to bargain with the Union
[we] could move any part or all lines.. ... adding
that employees should be thankful for "a good job ... If
you value your j ob, you will not sign no Union cards... .
if you are going to work for the Union, do it outside the
factory," as he "hit[s] the desk and he point [ed] outside."
It will be noted that - to say nothing of certain other
remarks attributed to him but not here material - at any
rate nowhere in the written script of Johnson ' s speech
does there appear any mention or suggestion of closing,
moving , or discontinuing the Russellville plant in the event
of its unionization . Johnson broadly denied that he said
this. In this denial he was supported to an extent by
Respondent ' s Personnel Manager Black , an impressively
credible witness , who, however , conceded that he did not
attend all of the group speeches made by Johnson on the
date or dates in question ; thus, knowledge of the subject
on Black 's part is admittedly incomplete . As for Johnson,
under cross -examination he conceded that while delivering
these talks to employees in the lunchroom he moved 2 to
4 feet from the podium without carrying with him the text
of the speech , which he " left. . . on the podium and
walked to the side," during all of which time "I was
talking ." Although Johnson denied straying from the
script while conceding he "might have " done so, it
requires no exercise in surmise and casts no discredit on
Johnson to visualize - considering the positive , credible
testimony of employee witnesses there present - that
while he thus wandered from the podium he also
wandered from the script in the manner attributed to him
by those witnesses . This conclusion is to a degree
reinforced by the precisely honed phraseology of
Johnson ' s testimonial responses to questions concerning
whether he made "a reference to your home" (Johnson's
replies were that he did "not recall " and "Not that I
know of"); his responses to questions as to whether he
"made reference to Emerson having 39 plants" (conceding
that he had , Johnson testified that "I don't recall
specifically when it was . It was not in my talk of the
21st," and that he had indicated in "small group
meetings" that in the event of a strike at Russellville
"Emerson had 39 plants and if this [Russellville] plant
was on strike and we only had 38 plants in operation,
Emerson would continue as a corporation in business");
and his responses to whether he had voiced a preference
not to move away from Russellville ("I might have said
that to an individual sometime " but "not . . . in relation .. .
to the Union drive . . . . Frankly , I don't recall how I
said it").
Impressed as I was with the described testimony in this
aspect of General Counsel ' s witnesses - who at
Respondent 's insistence had been segregated - even in
the face of clear conflict , considering comparative
"It is not here intimated that such a statement is unlawful or improper,
it being necessarily assumed that Respondent had in contemplation lawful
means.
79
demeanor within the penumbra cast by the case as a
whole I would have experienced difficulty in rejecting all
of their testimony as contrived. When, however, to this is
added the less than unequivocal nature of Johnson's
responses - even assuming them to be no more than the
product of imperfect memory, the corroborative lacunae
resulting from Black's conceded absence from some of
Johnson's deliveries, and the absence of other proof to
supply the defects in Johnson's memory, I am impelled to
the finding hereby made, that Johnson did indeed on the
occasion or occasions in question indicate that Respondent
would move its Russellville plant in the event of its
unionization for collective bargaining. That, in the context
described, such intimation of plant removal in the event
employees succeed in exercising their statutorily
guaranteed right to organize themselves for collective
bargaining, constitutes an impermissible economic threat
in violation of the Act, as is here concluded, is not open
to doubt.
It is well settled that economic threats, such as of plant
shutdown or removal, or of job loss, in the event of
unionization, are violative of the Act and not within the
"free speech" proviso of the Act (indeed, Section 8(c)
explicitly so states). N.L.R.B. v. Virginia Electric &
Power Co., 314 U.S. 469, 477, 478; N.L.R.B. v. Eastern
Die Co., 340 F.2d 607, 608 (C.A. 1), cert. denied 381 U.S.
951. "We have held that remarks made within the context
of an organizing campaign to the effect that employer
would close the plant if the union got in were violations of
section 8(a)(l). Florence Printing Co. v. N.L.R.B, 333
F.2d 289, 290-291 (4 Cir. 1964)." Holly Hill Lumber
Company v. N L.R.B., 380 F.2d 838, 841 (C.A. 4). To
the same effect, see The Little Rock Downtowner, Inc.,
143 NLRB 887, enfd. as modified, 341 F.2d 1020 (C.A.
8). The same is true of employer statements of the
possibility of shutdown in the event of unionization,
N.L R.B. v. Tru-Line Metal Products Company, 324
F.2d 614, 616 (C.A. 6), cert. denied 377 U.S. 906,
"notwithstanding sincere belief that such result would
follow." United Fireworks Mfg. Co. v. N.L.R.B., 252
F.2d 428, 430 (C.A. 6). Although here, as frequently, after
the words have served their purpose the employer tries to
make light of them and to minimize their force, it seems
fair to presume they were uttered in order to be effective;
and, to the employees, they emanated from a source
having the power to carry them out. Cf. N.L.R.B. v.
Eastern Die Co., supra A threat need not be carried out
in order to be coercive in its impact. Id, 142 NLRB 601,
602, fn. 2; The Rein Company, 114 NLRB 694; Forest
Oil Corporation, 85 NLRB 85, 86. Typically, such threats
are sought to be masked in the language of "prediction";
but this does not alter their character as coercive
pronouncements intended, as here, to restrain employees'
free exercise of rights to organize and bargain collectively
as guaranteed by the Act. Cf. N.L R.B. v. Miller, 341
F.2d 870, 873 (C.A. 2); Wausau Steel Corporation v.
NL.R.B., 377 F.2d 369, 372 (C.A. 7). Textile Workers
Union of America v. Darlington Manufacturing Co, 380
U.S. 263, dealing with employer preference for plant
closure rather than collective bargaining, is not to the
contrary. There speaking for the unanimous Court, Mr.
Justice Harlan warned, 380 U.S. at 274, fn. 20:
"Nothing we have said in this opinion would justify an
employer's interfering with employee organizational
activities by threatening to close his plant, as
8© DECISIONS OF NATIONAL LABOR RELATIONS BOARD
distinguished from announcing a decision to close
already reached .... "'
c. August 21 -22, 1967: McKenzie v. Martin
It is further alleged" that around August 22, 1967,
Respondent through its Supervisor McKenzie created the
impression that he had an employee's union activities
under surveillance by telling him [James Ralph Martin]
that it knew he had been distributing union authorization
cards and to hand them over and by further telling him
that his sister [Ruth McGuire] was known to have passed
out such cards; that the employee was on the same
occasion threatened with discharge for union activities;
that on the following day the same supervisor with respect
to the same employee again created the impression that he
had the employee's union activities under surveillance by
telling the employee that he knew the employee had again
been talking to other employees about the Union "but
that he [McKenzie] had checked and found that the said
employee was talking about another subject"; and that,
also on the latter day, because of the employee's union
activities and in order unlawfully to prevent union
solicitation on Respondent's property, McKenzie
instructed the employee to receive permission from him or
another supervisor upon leaving his duty station.
On these allegations, Respondent's former employee
James Ralph Martin - discharged by Respondent on
September 8, 1967, under circumstances to be detailed -
testified that on the occasion in question he was called to
the office of Respondent's Production Control Supervisor
McKenzie, where he encountered the latter as well as
Assistant Production Control Supervisor Jureka.
According to Martin, when he entered the office
McKenzie said, "James [Martin], hand me your card."
When Martin inquired, "What card," McKenzie replied,
"Union card." Martin responded, "I don't have any," to
which McKenzie allegedly retorted, "We know that you
are passing out Union cards. Three different employees
have come and told us that you were passing out Union
cards." According to Martin, McKenzie "went on talking
and said he [McKenzie] was surprised at me [Martin]
helping work for the Union. He said he knew some of
those boys back there was but he didn't know that I was,
and he went on and explained about the Union that they
had had in St. Louis, and told me that they was glad they
was out of it, and said that they didn't want a Union in
the Russellville Plant; that if I was caught passing out
Union cards, I would be immediately dismissed. He went
on to ask me had anybody talked to me during the time,
had I been talking to any Union representative, and I told
him I had, that Mr. Minnick, one of the representatives
from the IBEW, called me to talk to him. On the way out
- the conversation was over, and he went out with me
and he told me that he knew and that Mr. Johnson, the
Plant Manager, knew that my sister [Ruth McGuire] in
the winding room was passing out cards, and he told me
to tell her to stop that or she would be losing her job, and
so I did. . . . When he asked me about passing the cards
out I told him I wasn't passing any cards out. . . . I was
never told that I had been passing out Union material
during working time."
"The same is true for a partial discontinuance or transfer of operations
intended to "chill unionism" at the employers other locations td at
274-276; case on remand 165 NLRB No. 100, enfd , 397 F.2d 760 (C A
4), cert denied 393 U S 1023
"Complaint No. 1, pars 5(b)(i), (u), (iii), ( iv), and (v).
Regarding the foregoing, Respondent's Assistant
Production Control Supervisor Jureka testified that on the
occasion in question his superior, Production Control
Supervisor McKenzie, informed him that he (McKenzie)
had just been informed by Winding Room Foreman Nuyt
that Martin - attendant of the toolroom under
McKenzie's supervision - was in the winding room
conversing with an employee and he (Nuyt) wanted to
know why. While McKenzie was recounting this to
Jureka, McKenzie received a telephone call from Rotor
Finishing and Die Casting Section Foreman Knight, that
Martin was conversing with an employee of that section.
When McKenzie and Jureka proceeded there, they
encountered Martin returning toward the tool crib, where
they notified him of the complaints received and asked
him where he had been and why. Martin replied that on
his return to the tool crib from the boiler room, where he
had gone to take a rock salt inventory (part of his regular
duties), he had come through the winding room and had
stopped in the rotor finishing section to talk to an
operator there with regard to helping Martin put up some
hay. Under the circumstances, Jureka instructed Martin
that in the future he should notify McKenzie, Jureka, or a
subforeman when Martin was leaving the toolroom, where
he was going, and about how long he would be away.
According to Jureka, at this point Martin spontaneously
volunteered the information that "he [Martin] was not
affiliated with or was not an organizer for the Union, and
he felt that the complaint that had been received was
relative to the fact that he had a reputation, or supposedly
had a reputation of being a Union organizer," to which no
response was made to Martin and which information was
not reported. According to Jureka, Martin had previously
also spontaneously volunteered to McKenzie and him
"that he was not affiliated with the Union and he didn't
want us to have the impression that he was in any way
trying to organize as far as the Union was concerned,"
and had consistently denied to employees teasing him on
the subject that he was affiliated with the Union. Jureka
flatly denied the occurrence of the alleged episode in
McKenzie's office described by Martin, in all of its
aspects. Jureka also denied the existence of any rule
forbidding talking in the plant. Respondent's Production
Control Supervisor McKenzie, in its employ 19 years,
likewise flatly denied Martin's account of the alleged
episode in McKenzie's office, corroborating in essential
detail (with insubstantial variations) Jureka's testimony
as recounted above. Additionally, however, McKenzie
testified that about a week after the incidents involving
the reports received by him from Foreman Nuyt and
Knight regarding Martin's alleged conversational
peregrinations (i.e., around mid or late August), Martin
came to McKenzie's office "and he [Martin] was
upset, he was turning his tickets in, and he said that
everybody believed or thought that he was working for
the Union and he wasn't, and that he was going to quit
if we thought he did work for the Union. I [McKenzie]
told Ralph [Martin] that this was probably his
imagination , and nobody - I didn't believe this, and to
forget about it and go on back to work, which Ralph
did." According to McKenzie, he and Jureka instructed
Martin, on the occasion in question, in view of "two
phone calls in . . . . five minutes, in order to keep this
from happening again we asked Ralph [Martin] to let
us know when he was leaving and this way, when somebody
called, if they were at the tool room and wanted a pair
of plugs, a tool or something, and they'd call me and
ask where Ralph is, I could tell them, or Bob could tell
EMERSON ELECTRIC COMPANY
them, Mr. Jureka ." Winding Department Foreman Nuyt,
who had observed Martin conversing with an employee
(Ruth McGuire, Martin's sister) under Nuyt's supervision
while at work, corroborated his role in the foregoing.
As is apparent , this aspect of the case involves
essentially issues of fact . After weighing all circumstances
carefully, and mindful of the burden upon General
Counsel to establish each and all of the elements essential
to proof of the allegations made and to a determination of
violation of the statute , I find that the substantial credible
evidence does not fairly preponderate in favor of the
version of events put forward by Martin as opposed to the
version put forward by McKenzie , Jureka, and Nuyt. As
to the one element of this aspect of the case regarding
which there is no substantial conflict - namely, the
instructions issued to Martin by McKenzie and Jureka
around August 22 or 23 to notify either of them or a
subforeman in the future when leaving Martin 's toolroom
unattended , I find that this was well within their
prerogatives as Respondent's supervisors over Martin,
particularly under the circumstances described and in view
of the nature of Martin 's duties; and that General Counsel
has failed to establish by substantial credible evidence that
this action was taken in consequence of any union or
other protected activity on the part of Martin or in order
unlawfully to prevent solicitation of employees on behalf
of the Union on Respondent 's property as alleged.
d. Late August 1967: Black v . McGuire
It is alleged" that in the "last part" of August 1967,
Respondent through its Personnel Manager Johnson T.
Black created the impression that its employees' union
activities were under surveillance by telling an employee
[Ruth McGuire] "that her [i.e., Ruth McGuire's] name
had not been turned in to him for passing out union
authorization cards, but that said employee's brother's
[i.e., James Ralph Martin ' s] name had been turned in to
him for engaging in such concerted activity."
As to this, General Counsel's witness Ruth McGuire
testified that on the occasion in question she "went to see
Mr. [Personnel Manager] Black and asked him if my
[McGuire' s] name had been turned in for passing out
Union cards and he [Black] said, 'No, Rethie [sic], your
name has not been turned in,' and he wanted to know who
told me and I told him that my brother [James Martin]
had. He said, 'No, your name hasn't been turned in but,'
he said, ' I'll tell you , James' [Martin's] has.' So, I told
him, I said , 'Well, Mr . Black ,' I said, ' I don ' t know what
he does .' I said , 'We don ' t stay together or anything but,'
I said , ' if he was passing them out I 'd be surprised ....'
Mr. Black told me, said.... 'If he's passing them out I'll
be surprised, too."' According to Mrs. McGuire, she
thereafter became active in the Union campaign. At the
date of the trial of the instant case, she was still in
Respondent's employ.
The version of this incident furnished by Respondent's
Personnel Manager Black was that Mrs. McGuire "came
to the office and stated that she had been told that she
and her brother had been reported to the management, to
me I assume she was referring to, as being active in the
union. And I told Ruthy [McGuire] that I had no
knowledge of any information , any information of this
nature concerning her. And I went on and told her that I
81
had picked up information that her brother James Ralph
Martin was active in the union . And at this point Ruthy
stated to me that she didn't know about her brother, but
she knew for sure that she wasn't active in the union. She
did not know about her brother but that she would be
very surprised if he were active in the union. And at this
point I believe I laughed and stated that I would be quite
surprised also if he were active in the union." Black swore
that he had heard about Martin not in the course of any
information-gathering activity on his part, but because "It
seems that the personnel department is more or less a
gathering place for scraps of information. And as I walk
through the plant, or my assistants, various people stop
and give us these scraps and bits of information
constantly."
I observed Personnel Manager Black, who testified at
length concerning this and other aspects of the case, to be
an impressively credible witness, given to careful and
understated expression. Certainly in the normal course of
the exercise of his responsibilities as Personnel Manager
of a large plant , certain matters touching personnel were
observed by him or were brought to his attention by his
subordinates as well as by rank-and-file employees. It is to
be noted that Mrs. McGuire visited his office of her own
accord to initiate the described conversation, and that
apparently all parties concerned were in agreement that
Martin was not active in the Union. I accept Black's
version of the incident , which while not inconsistent with
that of Mrs. McGuire, is fuller. Under the circumstances
described, it would be farfetched and unwarranted to
regard the incident as amounting to the creation by Black
of the impression of surveillance or as in any realistic way
to have been coercive. The fact is that Mrs. McGuire, as
she testified, later joined the Union and is still employed
in the plant. I find that the described circumstances do not
constitute the creation of the impression of surveillance by
Respondent over employees' union activities in any way
such as to constitute interference, restraint, or coercion of
employees under the Act.
e. Last week of August 1967: Robertson v. Harris
It is alleged" that during the last week of August 1967,
Respondent's Foreman Robertson conveyed the
impression that he had the employees' union activities
under surveillance "by telling an employee that
Respondent was watching another employee, and that if
Respondent saw the other employee do anything
concerning the union , that the other employee would be
discharged"; and that Robertson on the same occasion
told the employee if employees selected the Union as their
bargaining representative Respondent ' s Russellville plant
"would probably be moved as had Respondent's plant in
St. Louis, Missouri."
On these matters, Respondent's employee Ida Harris
testified that around the last week of August 1967, her
foreman (or assistant foreman) Owen Robertson
approached her at her machine and "asked me [Harris] if
I knew how Regina Casebier [a fellow employee ] stood at
this time with the Union, that she had worked before real
strong , and he [Robertson] wanted to know how she stood
this year, and I told him I didn't know. He said, Well, she
was being watched and if they seen anything out of her
this time it would mean her job. Then he went on to say
"Complaint No. I, par. 5(t). "Complaint No. 1, pars. 5(c)(i) and 5(c)(u)
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the plant would probably be moved out if the Union
came in out there, and he said that everybody was being
watched, and if they seen anybody giving Union cards to
anybody on Company property, that them and the person
receiving the card, they would both be fired." On
cross-examination, Mrs. Harris testified she thought this
occurred "the same day" as Johnson's speech (i.e., August
21 or 22) in which "he [Johnson] said that there would be
no soliciting, that's what Mr. Johnson said," whereas
"what Owen [Robertson] said [was], anywhere on
Company property at any time." Also on
cross-examination, Mrs. Harris conceded that a pretrial
affidavit supplied by her to General Counsel contained no
mention whatsoever of any statement by Robertson as to
discharge for passing out union cards on company
property or time. Her explanation for this omission was
that "at the time that I was trying to think of what to put
down there I just didn't think of all of it, then. . . I
thought of it since then." According to Mrs. Harris, the
fellow-employee alluded to, Mrs. Casebier, was active in
the Union and is still in Respondent's employ.
The foregoing testimony by Mrs. Harris stands totally
undisputed by Robertson, who, while testifying on other
matters, was silent on this subject. Thus, resolution of
these particular issues rests squarely upon weighing the
credibility of Mrs. Harris. She impressed me at the trial
as a person well worthy of belief. I was unaffected in this
impression by her failure to mention, in her pretrial
affidavit to a Board agent, a matter regarding which she
testified (and which is not specifically alluded to in the
complaint); her explanation for the omission - namely,
that the Board agent typed as she talked, and she had
simply neglected to mention this detail - rang true to me
as I observed her, recognizing as I do upon the basis of
long experience that such lapses and later recollections are
by no means unusual.
It is accordingly found that the allegations of the
complaint in the respects under consideration have been
established by a fair preponderance of substantial credible
evidence.
f. August 27, 1967.• Plant Manager Johnson 's threat
of futility of unionization
It is further alleged" that around August 27, 1967,
Plant Manager Johnson told assembled employees that if
they selected the Union as bargaining representative
Respondent would not have to deal with it, thereby
suggesting the futility of organizing for collective
bargaining . Aside from the described testimony of
employee Margie Miller who , as shown , ascribed such a
statement to Johnson during his speech of August 21 or
22, there is an absence of evidence supportive of this
allegation . Johnson flatly denied addressing any
assemblage of employees at any time in August other than
as described on August 21 or 22, and further flatly denied
making such a statement at any time . If Johnson had
addressed assembled employees on August 27 and made
the statement alleged , it seems highly likely that other
employees would have heard him and remembered it and
that they could have been produced to so testify without
mincing words . Under the circumstances , I credit Johnson
and find this allegation not established by substantial
credible evidence."
"Complaint No 1, par . 5(b)(ui)
"The further allegation (Complaint No 1, par 5(a)(iv)) that at an
employee assemblage around August 27, 1967, Johnson told employees
2. September 1967
September 8, 1967: Discharge of James Martin"
It is alleged that on September 8, 1967, Respondent
discharged James Martin from its employ because of his
Union affiliation and activities, and to discourage
membership therein." Disputing this, Respondent contends
he was dismissed for cause.
Martin entered Respondent's employ in January 1966,
as a tool cutter. By the end of that year he had been
advanced to the position of tool clerk, in sole charge
during the "A" (day) shift of the toolroom, maintaining
an inventory of tools and supplies, including ordering and
issuing them to employees in accordance with governing
Company policies. He functioned under supervision of
Assistant Production Control Supervisor Jureka and
Production Control Supervisor McKenzie, who conceded
that except for the incident precipitating Martin's
dismissal on September 8, 1967, he had been a "good
employee."
Among the supplies dispensed to employees by Martin
in his capacity as tool clerk or toolroom or toolcrib clerk,
were various types of gloves. With some exceptions not
here applicable (for example, when authorized by a
supervisor)," it was and is Respondent's policy to charge
female employees for at least some such gloves. It was
Martin's duty as toolroom clerk to observe this policy, by
either collecting cash or obtaining a signed charge or
payroll deduction slip from employees to whom such
gloves (or other work supplies and tools) were issued by
him. Thus, Martin's job as toolroom clerk involved not
only efficiency on his part, but was a position of trust,
since to a degree the integrity of Respondent's supply
system was dependent upon his honesty and adherence to
Company policy and rules in its supply administration.
According to Martin's own testimony:
On September the 8th [, 1967], at break time, at 2:00
o'clock break, Edna Babb, a girl that takes the same
break that I [Martin] do, she came up to me and asked
me if I had a pair of gloves that she could use. She was
separating rollers outside the tool room. I told her yes.
At the end of break time she went back to the tool
room with me and I got the pair of gloves and gave
them to her, and she asked me how much they were
and I told her to take them and use them, and that was
all that was done. . . . Around 3:15 Mr. McKenzie
[Martin's supervisor] came to the tool room and asked
me could he see my ticket book. I showed it to him and
he wanted to see the money box. I showed it to him. I
said, "Mr. McKenzie, what's wrong?" He said, "I'll let
you know later." Around 3:30 he called me, he said,
"On your way home stop by Mr. [Personnel Manager]
Black's office." On the way home I did. When I went
in Mr. Black's office he had a written statement, signed
they would receive a wage increase if they refused to select the Union as
their bargaining representative , was withdrawn by General Counsel at the
trial
"The allegation (Complaint No 1, par 5(h)) as added by paragraph 4(h)
of July 25, 1968, amendment ) that during the first week of September
1967, Respondent 's Foreman Gooch threatened an employee with
discharge unless ceasing support of or activity on behalf of the Union, was
withdrawn by General Counsel at the trial
"Complaint No I, par 6.
"The instances of receipt of gloves or tools without charge testified to by
General Counsel witnesses Polly Goodman and Toni Pulley clearly fall in
this category
EMERSON ELECTRIC COMPANY 83
by Edna Babb, of me giving her the gloves and her
offering to pay for them, and he told me, he said,
"Ralph [Martin]," he said, "Mr. McKenzie is sitting
here and he said that you know the tools in the tool
room that you are supposed to charge for and the ones
that you are not", and said, "we are going to give you
a three day suspension pending discharge." He said,
"After three days you can come back and talk to Mr.
Johnson, the Plant Manager."
Personnel Manager Black subsequently notified Martin
that "they had talked it over and that I [Martin] was
being discharged."
At the trial, as before his superiors at the plant, Martin
freely conceded that he should have charged the
established price of 83 cents for the new goatskin gloves
he gave Babb for nothing. His explanation at the trial -
as previously to his plant superiors - for his action in
giving gloves to Babb was simply, "I don't know how I
did it. She just asked for a pair of gloves that she could
use . . . she showed me how nasty her hands was. They
had grease all over them, and smoke. They had a fire out
there over the week end and that's what she was doing,
separating the good rollers [used in motors] from the ones
that had been burned brad, and that's what she wanted
with the gloves, she told me." On cross-examination,
Martin conceded that Babb, whom he knew outside of the
plant, had offered to pay him for the gloves, with money
actually in her hand for that purpose:
She [Babb] asked me [Martin] how much the gloves
was. She had the money in her hand and I told her to
take the gloves and use them and that's all that was
said. She walked away from the window. . . . I don't
know [why I didn't take the money], I just - she asked
me at break time if she could use the gloves. I don't
know what I had in my mind when I let her have the
gloves. She had the money in her hand to pay, and she
asked, "How much are they?" and I said, "Take them
and use them."
In contradistinction to his foregoing testimony at the trial,
however, it is noted that at a hearing held before
Examiner Hallie Richardson at the Department of
Economic Security, Bowling Green , Kentucky, on October
5 and 19, 1967, Martin swore that he did not know
whether or not Babb offered to pay for the gloves, and
also that Babb did not offer to pay for them."
Respondent's witness and Production Control
Supervisor McKenzie testified that he checked Martin's
toolroom receipts for gloves issued on September 8
(finding none) at the request of Personnel Manager Black,
to whom Martin ' s action in issuing gloves free to Babb
had been reported by General Foreman Taylor, to whom
in turn it had been reported by "A" shift Subforeman
Savage. Since, according to McKenzie's testimony,
Respondent maintained no inventory of stock of gloves on
hand in the toolroom and there was no audit of Martin's
accounts, it is apparent that reliance was placed upon the
toolroom clerk's honest and otherwise proper
administration of these supplies. McKenzie testified -
consistently with Martin's testimony - that Martin had
no authority as toolroom attendant to give away supplies
without charge, but was required to collect cash or obtain
a signed receipt for supplies issued, and accurately to
record the distribution of all property under his control.
The testimony of Respondent's Personnel Manager
Black indicates that it was he who - after ascertaining all
"Resp Exh. 1.
of the facts and giving Martin the opportunity of
explanation - made the ultimate decision to dismiss
Martin for his described supply administration infraction
in issuing nonexpendable gloves to Babb on September 8
free of charge. Black denied any directly comparable
incident, involving a supply room clerk's giving away of
company property even of small value, in Black's 7 or 8
years at the plant; but that in every prior instance of
dishonesty (perhaps a half-dozen), such as falsification of
production records, by employees at the plant the
employees involved had invariably been discharged even
though it was a first offense. As explained by Black:
". . . this former employee [Martin], at the time he was
in the tool crib, was entrusted with quite a bit of
material . And I don't believe it's eighty-three cents
we're talking about. I think it's a matter of the
principle that this man had access to this other material
and that there could have been hundreds or thousands
of dollars of material given away without any ready
check being made on it. It was a lack of trust or
responsibility there more than it was eighty-three
cents."
Asked why Martin could not have been transferred to
other duty rather than dismissed, Black explained:
"I believe that the only job that James Ralph Martin
had held prior to going into the tool crib was on a
production job. Now, on a production job a operator is
required to keep the number of pieces of material that
they produce during the day. And if a man will be
dishonest in the tool crib then there's reason to believe
he may be dishonest in turning in his production card.
Therefore we didn't feel like we would have a place for
him even in production. . . . There were direct labor
jobs.22 However, with the seniority program we have,
I'm not sure whether we were even hiring very many
people at that time, but I don't feel like that we would
want to take the chance on any of these other jobs....
We knew this had happened once in a position of
responsibility. And we didn't want it to happen again,
sir. 11
With regard to Martin's union activity, although
Martin's testimony indicates he engaged therein to
Respondent's knowledge in connection with the
unsuccessful 1966 unionization campaign -
notwithstanding which he was promoted in job and raised
in pay - and possibly to a lesser extent in the 1967
campaign, there is no persuasive proof that his
participation in the 1967 campaign, whether outside of or
inside the plant, was known to Respondent; much less that
it was in any way extraordinary, unusual, or such as to
make Martin, as distinguished from other avowed Union
sympathizers, a marked man on that account. Martin
testified that he did not hand out Union cards on
Company time, and in his 1967 testimony before the
Kentucky Department of Economic Security23 he swore
that he never passed Union cards out. The testimony of
General Counsel's rebuttal witness, Lewis Mathews,
corroborating that of Martin, establishes that on the
occasion in August 1967, referred to above in another
connection, when Martin was reported for having a
discussion with him in the plant, it was not union matters
"Presumably at substantially lower pay than Martin was receiving
There is no evidence that Martin at any time displayed any interest in any
such job, nor that after his dismissal he ever applied for employment of
any sort with Respondent
"Resp Exh 1.
9 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they spoke about but baling hay. There is every indication
in the record that, unlike Martin, numerous Russellville
employees were open and avowed Union activists ; with no
evidence that any of them has been discharged or in any
way the object of discrimination or recrimination on that
account . Martin himself testified that at the time of his
discharge his wife, sister (Ruth McGuire), and brother, all
"active in the Union ," were working at the plant and that
they are still working there . In this aspect of the matter,
when Jureka and McKenzie spoke to Martin regarding his
August conversational peregrinations in the plant, Martin
spontaneously pointed out to them - as he had on prior
occasions - that he was not only not organizing for the
Union but that he was not even affiliated with it . Jureka
and McKenzie denied any contrary knowledge . The same
is true for Personnel Manager Black , who, it will be
recalled , readily agreed with Martin ' s sister Ruth
McGuire that Martin was not active for the Union, when
Mrs. McGuire visited him in late August . The long and
short of it is, that whether or not Martin was active on
behalf of, affiliated with, or even interested in the Union
1967 organizational campaign , it has not been established
by substantial credible evidence that Respondent possessed
knowledge thereof.
More fundamentally , however , even if Respondent
knew of or suspected Martin's involvement in the 1967
unionization attempt, the substantial credible evidence
fails to establish that he was dismissed for that reason. On
the contrary , the evidence shows that he was fired because
he misused his trust - at any rate in Respondent's
opinion - in his administration of the toolroom by
issuing nonexpendable property of Respondent to an
employee free of charge , in violation of Respondent's
express rules to the contrary known to him . It is not for a
Trial Examiner of the Board to pass upon the
reasonableness of Respondent ' s personnel policies as to
the level of honesty or efficiency required of its employees,
in the absence of evidence that they were discriminatorily
promulgated or applied . There is a total absence of such
evidence here . Under these circumstances , inquiry as to
whether or not Respondent was justified in dismissing
Martin for the indicated infraction , which some may
regard as trifling , is irrelevant . The Act does not require
employers to be compassionate toward employees. It
merely requires them to do what the Act says they must
do and to refrain from doing what the Act says they must
not do . N.L.R.B . v. Waterman S.S. Corp., 309 U.S.
206, 218 -219; N.L.R.B. v. Ogle Protection Service, Inc.,
375 F.2d 497, 505-507 (C.A. 6), cert. denied 389 U.S. 843;
N.L.R.B. v. Redwing Carriers , Inc., 284 F.2d 397 (C.A.
5); Dieckbrader Express, Inc., 168 NLRB No. 113;
Kayser-Roth Hosiery Co., Inc., 166 NLRB No. 56;
Lindsey's, 156 NLRB 1114; Guyan Machinery Company,
155 NLRB 591.
Under the circumstances, and entirely apart from any
sympathy or understanding for the possible plight in which
Mr. Martin found himself because of his perhaps
charitably motivated violation of his employer's supply
administration requirements , I am constrained to find that
it has not been established by a fair preponderance of
substantial credible evidence that Respondent's discharge
of Martin on September 8, 1967, was because of his union
membership, affiliation , sympathy , or activity, or to
discourage union membership.
"Complaint No . 1, pars . 5(c)(Iii), (iv), (v), and (vi)
3. October 1967
a. September-October, 1967: Robertson v. Webb
It is alleged=" that during September or October 1967,
Respondent through its Foreman Robertson created the
impression that its employees ' union activities were under
surveillance by telling an employee that he knew union
representatives had been to the employee's home; that
employees would be discharged for their union activities;
and that Respondent was stockpiling motors in a bus
terminal which it had acquired so that some employees
could be discharged in the event of unionization of its
plant.
Regarding the foregoing , General Counsel witness
Lloyd Webb, who worked for Respondent from 1964 until
he quit at the beginning of December 1967, testified that
around October 1967, he was visited at his home by
Union Organizer Betty Heiby and fellow-employee Lucille
Austin. About 2 weeks thereafter, Webb was visiting
Respondent's Assistant Foreman Robertson at the latter's
home. Webb is Robertson's stepfather-in-law. On the
occasion of this visit, according to Webb, his
stepson-in-law Robertson told him that Robertson's
supervisor, Foreman "Lee Friedel was very much
disturbed, and I [Webb] asked him [Robertson] why, and
he said , `Over the Union.' He said that they knew that
they had been coming to my house, and said he [and Lee
Friedel] knew it and there was other people that knew it. .
He [Robertson] said they was going to have to get rid
of some of the best workers on account of it, and they had
bought a plant - he told me they had bought a bus
terminal and was filling it with motors in case that they
[i.e., the Union] did come in they could lay off part of
them .... Lucille Austin' s name was [mentioned as] ....
one of them that was going to have to be fired herself,
that's what he told me." On cross-examination, Webb,
after refreshment of his memory from a pretrial affidavit
furnished to a Board agent, added that on the described
occasion Robertson also told him that he (Robertson) had
seen "the Union, meaning Mrs. Heiby and Lucille Austin,
visit [me] at [my] home."
Robertson 's responsum to these accusations was in
effect a flat denial . According to Robertson, the only
conversation he had with Webb concerning the Union was
about 2 weeks before Christmas 1967, when according to
him (but not according to Webb, who swore he quit on
December 2) Webb was still employed at the plant, at
which time Webb asked Robertson his opinion of "what I
[Robertson] thought would happen when they had the
election . . . the union . . . or . . . the company . . . . I
told Lloyd [Webb] I didn't think they [the Union] would
win . . . Lloyd [Webb] led me to believe that he was on
the company's side. He didn't seem to think much of the
union or that the union had a chance either." Asked how
he gets along with his stepfather-in-law (Webb),
Robertson replied that he does and that "I don't see him
a lot. I guess that' s getting along ." When Webb was
asked what he was doing at Robertson's home on the
occasion in question , his reply was , "It so happens that
my wife's daughter married him"; when asked whether he
saw much of his stepson -in-law (Robertson), Webb
responded, "When he wanted something, yes . . . . a
favor."
There is thus presented a direct clash of testimony,
requiring credibility resolution . As between the two
accounts described , comparing testimonial demeanor of
EMERSON ELECTRIC COMPANY
the witnesses as observed by me at the trial, and
considering the unlikelihood of a man of Webb's type
fabricating such a story out of the whole cloth, as well as
the fact that what is thus ascribed to Robertson by Webb
bears a resemblance in certain respects to what was
credibly ascribed to him by General Counsel witness Ida
Harris without denial by Robertson, as described above,
there resulted in my mind a testimonial preference for
Webb's version, which I accordingly credit. It is therefore
found that the foregoing allegations of the complaint here
under immediate consideration have been satisfactorily
established.
b. Late October 1967;" Tatich v. Harris
It is alleged3e that in late October 1967, Respondent's
supervisor , agent and Plant Engineer Tatich told an
employee that if the employees selected the Union as their
bargaining representative the Russellville plant would
close down.
General Counsel witness Ida Harris, an employee of
Respondent, testified that while working in the company
of Tatich on Respondent's float in the 1967 Russellville
Annual Tobacco Festival, in late October of that year, she
asked him "how he [Tatich ] thought the Union was doing
this year, and he said he didn't think they was doing too
good , and he said if the Union should come in the plant
would probably have to move out like the one in St. Louis
did." According to Mrs. Harris, at this time she was
unaffiliated with the Union; and, although she was at the
time personally unaware of Tatich's precise status, she
knew he had an office and desk in the plant and wore
street clothes (as distinguished from a work uniform)
there.
Tatich's testimony regarding the foregoing was, in the
frame of reference of my close observation of his
demeanor, eninently unsatisfactory. His initial
statement that he could not "recall" such a conversation
was followed by a statement that "I knew I didn't say
anything like that," which was in turn succeeded by
another statement that "I can't recall this because this
is a fun project. And normally you don't talk about
work . . . That's the point. I can't recall talking about
any union business." He then again said, "I know I
didn't make a statement like that. . . Well, what I'm
getting at, I've been in this business, in supervision so
long I wouldn't make a statement like that." Finally,
asked directly what was said by him or Mrs. Harris, he
replied, "Well, I can't recall any union conversation
or any statement that I made to her. . . At that time I
don't recall any union conversation."
Faced with the necessity for choosing between the
described two witnesses, whose demeanor I observed,
I have little hesitancy in preferring Mrs. Harris, who
I do not believe fabricated her testimony. By way of
contrast to her clear and credible account, I could not
avoid the impression that the version adduced to meet
her testimony was either the result of bona fide lack of
recall or was hedged and evasive. It is, of course, clear
that coercion can take place while working on an
employer's float as well as in his factory. I find that the
"The allegation (Complaint No 1, par 5(c)(vii)) that in mid-October
1967, Respondent's Foreman Robertson threatened that the Russellville
plant would close if the employees selected the Union as bargaining
representative, was withdrawn by General Counsel at the trial.
"Complaint No . 1, par. 5(dXi).
85
allegation here under consideration has been
satisfactorily established.
c. October 31, 1967: Surveillance by Friedel
Respondent's General Foreman Friedel is accused27
of committing surveillance over Respondent's employees'
protected concerted activities on October 31, 1967.
Credited testimony28 establishes that on the morning
of October 31, 1967, Union organizer Betty Heiby and
Respondent's employee Lucille Austin visited the home
of Lloyd Webb, who was at that time in Respondent's
employ, in order to solicit him to affiliate with the Union.
In driving to Webb's home, Heiby and Austin passed the
home of Respondent's General Night Foreman Friedel,
who lives about four houses away from Webb on the
other side of the street. As they passed Friedel's home,
they observed him standing or sitting29 on the steps.
According to Austin, after they parked the car and went
up the steps of Webb's house, Friedel was observed to
be standing on his (own) lawn, at a distance of
approximately 110 feet,30 on the other side of the street,
"behind a little small tree" which Austin described as
perhaps 10 feet tall and 6 inches in diameter; and when
they emerged from Webb's house 45 minutes later Friedel
was still there and waved to them as they went by.
Conceding that he saw Heiby and Austin drive by his
home as described, while he was seated on his own porch,
and park and enter Webb's house, Friedel denies that he
thereafter left his porch to go behind a tree or otherwise
to observe Webb's house, or that he saw them leave.
According to Friedel, although he knew Austin since she
worked on his shift ("B" or night shift), he had never
seen and did not know who Heiby was at the time, and
did not convey to anybody at the plant that he had seen
them visit Webb. To the extent of inconsistency, I credit
Friedel's version.
On these facts, I find that Respondent did not engage
in surveillance over employees' protected concerted
activities in violation of the Act. On the occasion in
question, Friedel was on the porch of his own home,
where he of course had the right to be. There is no
suggestion that he was aware that Heiby or Austin would
be visiting Webb; Friedel was at the time totally ignorant
of who Heiby was; there is a total absence of any
indication that at any time Friedel had any awareness of
the purpose of the visit to Webb's home or of who was
there being visited; and at no time - even under Austin's
version involving the "small tree" on the lawn - did
Friedel attempt to conceal his presence, at the
considerable distance where he was. This is not
surveillance. Friedel was where he had the right to be,
and he saw what he did presumably only because he
happened to be there. The Act does not require employers'
supervisors relaxing on the porches of their homes to
retreat indoors under the described circumstances; nor
27Complamt No 1, par 5(g), as amended August 6, 1968
281.e , of General Counsel witnesses Austin and Webb, and of Respondent's
witness Fnedel.
"General Counsel witness Austin first said one, then the other
,.According to General Counsel witness Lloyd Webb, the distance
between his house and that of Friedel is about 500 feet, apparently with
a road ("Briggs Addition") separating the two houses, which, as already
stated , are on opposite sides of the street Respondent's witness Friedel
estimates the distance between the two houses at 525-600 feet
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to make an affirmative attempt to avoid seeing what is
there.31
4. November 196732
a. November 16,1967: Johnson v.
Austin, Goodman, & Hargrove
It is alleged33 that around November 16, 1967,
Respondent through its Plant Manager Johnson
threatened employees with discharge because of their
"union activity."
General Counsel witnesses Lucille Austin, Polly
Goodman, and Vera Hargrove testified that on the evening
of November 16, 1967 they were individually called to
the winding room office, where, in the presence of
Personnel Manager Black and Assistant Foreman Adler,
Plant Manager Johnson informed them that he had
received various complaints against them for soliciting
on behalf of the Union on company time, and that, after
calling to their attention his August 21 remarks to the
employees on the subject of such solicitation, he warned
them of discharge in the event of further complaints.
According to the testimony of all three, Johnson clearly
indicated that his stricture was limited to soliciting
"on Company time." Austin testified that Personnel
Manager Black expressly agreed with her that she was
within her rights in soliciting on her own (lunch, supper,
and break) time. All three denied solicitation on company
time.
Credited testimony of Respondent's Assistant Foreman
Adler, Personnel Manager Black, and Plant Manager
Johnson establishes that just prior to the described
occasion in November 1967, Adler had received
complaints from employees whom he named (stockboys
Louis Lamb and Danny Smith afainst Polly Goodman
and Regina Casepeer or Casebier for "harassing them
and trying to get them to sign a union card. . . . during
working hours at the plant" while actually at work; coil
winder Dot Capps against Lucille Austin for "trying to
get them to sign a union card ... during working hoursi
... during the time that they were on the job. . . . She
[Capps] came to me sort of mad. Said she was getting
tired of it ... being bothered about signing a blank-blank
union card every time I go around her machine"; and
liln view of the finding here made and the dismissal upon the merits
of this allegation of the complaint, Respondent's motion (upon which
decision was reserved at the trial) to dismiss this allegation as barred
by Sec 10(b) of the Act, is dismissed as academic
32Allegations (Complaint No. 1, pars. 5(e)(ui), as added by amendment
of July 25, 1968, and 5(e)(u)9 that Respondent's Supervisor Adler around
November 7, 1967, created the impression of surveillance over employees'
union activities by telling an employee that he had seen him talking to a
union organizer, and that in mid-November Adler forbade employees from
conversing and moving about together so as unlawfully to prevent union
solicitation on company property, were withdrawn at the trial by General
Counsel
33Complamt No. 1, par 5(a)(v)
"Adler later explained that no action was taken against Casebier since
"She was just with Polly [Goodman] They were actually accusing Polly "
"While not alleged in the pleadings , some evidence was adduced in an
apparent attempt to demonstrate that Respondent did not enforce its
proscriptions against worktime solicitation evenhandedly . Thus, employee
Polly Goodman spoke of a 1967 Christmas party or small get-together of
the employees on her line , for which a spot collection was made from her
by Adler allegedly during worktime , she having been absent the day before
when it had been discussed ; and employee Ida Harris spoke of her peddling
of cosmetics for a period of perhaps a year and a half "at break and lunch
time , or supper time, whichever " (Emphasis supplied .) It is noted that
Harris' activity was not during Company or worktime , and it would seem
Carolyn Hinson against Vera Hargrove for asking her
"two or three times during the time they were working on
the line to sign a union card "). These employees asked
Adler "how they could go about getting these people
[Goodman, Austin, and Hargrove] off of their backs ... I
told them that I couldn 't go right up and tell them to stop
it and smack their hands. But I'd take them to the
personnel department . . . ," and he did. Adler took the
complaining employees (Lamb, Smith, and Capps) to
Personnel Manager Black , to whom in Adler' s presence
(except in the case of Capps, when Adler was not there)
they repeated their complaints . Written statements were
procured from the complaining employees by Personnel
Manager Black, who reported the situation to Plant
Manager Johnson with the recommendation that "we do
something about it." In consequence of this
recommendation , the three offending employees -
Austin, Goodman, and Hargrove - were called to meet
with Plant Manager Johnson and Personnel Manager
Black (both of whom appeared at the night shift for the
occasion), as well as Adler, on or about November 16,
1967, and after being told about the complaints and the
signed statements attesting thereto , and reminded of
Johnson's August 21 remarks on the subject of working
time solicitation, were warned to refrain from further such
infraction of Respondent 's rules.
On the basis of the foregoing and the record as a
whole, it is apparent that Respondent had a reasonable
basis for believing that the three employees in question -
Austin, Goodman, and Hargrove - had violated its
lawful rules against solicitation on Company or working
time. Under the circumstances, Respondent was justified
in calling this infraction to the offending employees'
attention at the time and in the manner that it did. This
being the case , it would be unwarranted to conclude, as
alleged in the complaint , that its action constituted an
unlawful threat of discharge for union activity. It is
accordingly found that the complaint allegation under
discussion has not been sustained.'
absurd to regard the isolated instance of a spot collection from one of a
small get-together of line employees (which one had been absent the day
before when the matter was discussed ) as justifying the opening of the
sluice gates to wholesale union solicitation during paid working time A
potentially significant possibly disparate application of the no working-time
solicitation rule was hinted at in testimony of employee Pulley, to the
effect that in the 1966 organizational campaign she spoke to fellow
employees "in favor of the company as much as I possibly could" during
worktime as well as breaktime, to the alleged knowledge of unnamed
supervisors ; and that she continued this to an undescribed extent at the
"beginning" of the 1967 campaign , to the presumed awareness of her
foreman (Nuyt) who did nothing about it, and also that after early
February of 1968, "ELE" (Emerson Loyal Employees Club, antiunion)
button-wearing employee Kay Pendleton was permitted to speak to her and
they "just discussed who was promoting the ELE club and, other than that
it was just general conversation about her [Pendleton 's] injury " Pulley
further testified in general terms that "ELE" button-wearers "asked other
people to wear them . . I guess every chance they got . . During
breaks and working time , too"; but she conceded that she "could not
swear" that she "ever observe[d] a supervisor or foreman see this taking
place." All circumstances considered, upon the record as a whole,
including the presumable facility - in a factory population of 1,000
employees - with which substantial factual proof could have been adduced
along these lines to make a substantial credible showing of truly disparate
application of the rule , I am loath to accept and base firm findings and
conclusions upon such meager and evanescent generalities It is accordingly
concluded that - even though not pleaded and fairly litigated - disparate
application of Respondent 's no worktime-solicitation rule has not been
established by that substantial credible evidence which the law requires Cf
Mason & Hanger-Silas Mason Co., Inc v N L R B, 405 F.2d I (C.A
5)
EMERSON ELECTRIC COMPANY
b. November 17, 1967: Adler v. Goodman
It is alleged" that around November 17, 1967,
Respondent's Supervisor Adler created the impression of
surveillance over its employees' union activities by saying
to an employee that he (Adler) had been told whom to
watch and that any time he saw an employee talking to
other employees "for any length of time" it was to be
assumed that the employee was talking about the union.
Employee Polly Goodman testified that she was in the
winding room office on November 17, 1967 since (as she
testified) "I put in for a transfer to another job and asked
if I could not take that job, being as what happened the
night before. . . . I told him [Adler] that after what had
happened, the night before, I didn't feel like, you know,
going and working on a different job [sic], and he said
well, he would have to check with the general foreman,
which is Lee Friedel, and see. He said he'd rather I'd stay
there and work for him, even though what had happened
the night before. I told him that I knew he had been
watching me in the past couple of days, back in my
working area, and he said, `We are told who to watch.' I
told him, I said, `Well, I don't care,' that I was still going
to work for the Union, and he says, `You mean after we
told you last night that you were out on a limb you are
still going to work for them?' and I told him yes. He told
me that I was supposed to stay at my working area, and I
told him I didn't think it was fair. He says, `Well, Polly,
any time we see you talking to another employee we are
to assume that you are talking about the Union."'
Adler's version of this incident is that on November 17,
following the session with Plant Manager Johnson on the
previous evening (described above), Polly Goodman
entered his office crying and asking for a transfer to
another unit. Adler told her she could do so, although he
invited her to stay. Asked then (at the trial) by
Respondent's counsel whether "anything [was] said about
the union ... or the meeting of the night before," Alder's
response was, "To the best of my knowledge there wasn't
much talk about that." Asked thereupon, also by
Respondent's counsel on direct examination, "what talk, if
any, happened? What was said," Adler's response was, "I
don't remember." Thereafter, however, in response to a
number of leading-type questions, Adler denied making
remarks of the nature attributed to him by Goodman.
Asked, still on direct examination, "Did you bring up the
subject of the union," his answer was, "Not to my
knowledge"; asked whether Goodman brought it up, he
answered, "I don't even remember talking about the union
in that particular meeting."
All things considered , comparing testimonial demeanor
and giving it the weight I believe it deserves within the
module of the case as a whole - including Goodman's
admitted presence in Adler's office at an apparently
distressing scene following what to Goodman must have
been the unnerving events of the night before , involving a
formal confrontation with the plant manager on this very
subject, and her admitted object in going to Adler's office
the next day to obtain a transfer - I have no difficulty in
crediting Goodman's version of what occurred,
particularly in view of Adler's purportedly hazy memory.
Crediting Goodman 's version , however, still leaves me less
than satisfied that in the context of what had gone before
- that is, Goodman's apparent infractions of
Respondent ' s proscriptions against solicitation during
"Complaint No 1, par 5(e)(i)
87
working time - Adler's action constituted an unlawful
interference with Goodman's or employees' organizational
or other protected rights. Under the existing
circumstances, it would have been unnatural for
Respondent to do other than keep Goodman under
observation for possible further infractions -
management's prerogatives in the prevailing situation.
(Goodman herself admitted on cross-examination that she
"talked about the union during working hours.")
Employer awareness of union activity does not equate
with surveillance, nor does a statement of awareness
equate with creating the impression of surveillance.
Stewart & Stevenson Services, Inc., 164 NLRB No. 100,
fn. 2; Davis Cabinet Company, 150 NLRB 182, 188-189.
It is accordingly found that the allegation in question has
not been sustained.
5. January 1968
a. January 1968: Robertson v. Tooley
It is alleged" that in January 1968, Respondent's
Foreman Robertson created the impression of surveillance
of its employees' union activities by telling an employee
that his and other employees' visits to a Union organizer
were being watched; and that Robertson promised benefits
to the employee if he ceased supporting and assisting the
Union.
Regarding the foregoing, Respondent's former "B"
(night) shift employee James Tooley (Tulley) testified that
on various occasions from November 1967 to January,
1968, Respondent's Foreman Robertson cautioned him
about visiting Union Organizer Heiby at her headquarters
at a local motel - in Tooley's word style, Robertson told
him at the plant, "You ought to be real careful, if you
don't you are going to get messed up going down there
[i.e., Town Motel]," and that Robertson "said they had
been watching the place. . . . They have been watching
and they know everybody that's going down there ... .
He never said who they were. He just said, `They've been
watching it.' He could have meant anyone, as far as that
goes, but that's the impression he left. . . . I couldn't say
just exactly how many, but I'd say four or five times....
I can remember that many times."
On cross-examination, Tooley was asked, "When he
[Robertson] said they were watching the place did he
mean the Emerson plant?" His response was, "That's
what I said a while ago, I don't know but that was the
impression he left." Tooley then added that on one
occasion at Robertson's house, apparently in preparation
for a hunt, characterized by Tooley as "the last time,"
Robertson "told me if I would keep the Union quiet, be
quiet, he could help me out a whole lot on making me a
subforeman. That was what the whole deal was all about
to start with."
An amendment to the complaint was allowed following
Tooley's described testimony so as to include the
substance of Tooley's testimony as part of the complaint,
comprising the allegations under immediate consideration.
Tooley thereafter returned for cross-examination . At that
time he was asked to repeat what Robertson had allegedly
told him before the hunt. His response was, "He
[Robertson] told me to be careful about going down to the
motel, and watch what I said, because he was going to try
to help make me subforeman." Tooley conceded that he
"Complaint No 1, pars 5(c)(viii)(A) and 5(c)(vih )(B), as added at the
trial
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been sent home from work by Robertson for excessive
drinking , but claimed that it was Robertson who had
furnished the liquor to him ; according to Tooley, "I have
went home at my request" on that occasion , but he then
modified this to say that Robertson "told me he'd rather I
would go home . I told him I'd rather I didn't and he said,
`Well, I believe you ought to go home ,' so I went home."
Foreman Robertson in effect totally disputed Tooley's
statements , except that he admitted making a kidding
remark about "a revival meeting" on one occasion when
Tooley sought to get off at midnight instead of working
overtime with other employees , although Robertson was
"pretty sure he [Tooley ] was talking about a union
meeting," since it was common knowledge throughout the
plant and town that union gatherings were being held;
however, Robertson denied mentioning the Town Motel to
Tooley . And, although Robertson admitted going hunting
and scouting with Tooley, according to Robertson the last
time was in November , 1967, and Robertson absolutely
denied saying anything to Tooley about a promotion if he
stayed away from the union . Robertson also pointed out
that not only was there no subforeman in his department,
but that he could not have recommended Tooley for
promotion anywhere in view of the fact that he had
"written Jack [Tooley] up two times for drinking on the
job." Robertson denied furnishing liquor to Tooley or any
other employee on the job.
It is apparent that this aspect of the case likewise
presents mere issues of credibility. In the somewhat
unsatisfactory state of the record in this immediate
regard , with an absence of corroboration or contradiction
on the direct issues by any witness other than Tooley and
Robertson - although each indicated others were present
under either version of the alleged incidents - I have
weighed as carefully as I can the overall testimonial and
communicational level of the witnesses as observed, with
little if anything else of aid . Upon that basis and the
record as a whole, I believe that substantial credible
evidence fairly preponderates in favor of a finding, and
accordingly find, that Robertson did indeed by his words
to Tooley ih January 1968 , caution the latter against
going to visit the Town Motel, known to Robertson as the
locus of Union organizational activity and said by him to
be under watch, and convey the impression that
employees' union activities were under Respondent's
surveillance , thereby interfering with , restraining, and
coercing employees in the exercise of their rights under
the Act, substantially as alleged." I further find, however,
that Robertson 's alleged promise of benefits to Tooley for
withholding further support from the Union has not been
established by substantial credible evidence to have been
made . In this regard, I do not credit the testimony of
Tooley and am satisfied by Robertson ' s denials and the
related reasons assigned by him to explain why he could
not and would not have made such a promise , that it was
not in fact made."
"It will have been noted that Robertson 's actions in this regard are akin
to those which he previously had committed with respect to his
stepfather-in-law Webb, as described above.
"This finding is made nothwithstanding the degree of doubt cast on the
credibility of Robertson (whose side, it is to be remembered , does not bear
the burden of proof here)- by two female rebuttal witnesses (Polly
Goodman and Ida Harris) who collaterally disputed Robertson's perhaps
understandable denial that he introduced , partook in or offered alcoholic
drink in the plant
b. January 26, 1968: Dudley v. Blackford
It is alleged °0 that around January 26, 1968,
Respondent' s Assistant Personnel Manager Dudley
threatened new employees with discharge if they engaged
in union activity and that he solicited them to report to
him on union activities of fellow employees.
On the occasion in question, January 26, 1968,
Respondent' s Assistant Personnel Manager Richard
Dudley conducted his customary orientation of new
employees to two females - Sally Blackford and Frances
Mandrell. According to Sally Blackford, testifying as
General Counsel's only witness in support of the
allegations under consideration , Dudley " asked Frances
[Mandrell] if she knew there was a Union campaign going
on. I [Sally Blackford ] knew there was one going on, but
he [Dudley] didn't ask me, and he told us that some of the
older girls had become dissatisfied. . that they were
trying to get cards signed to get an election for the Union,
and said that he was sure they did have enough cards
signed , but, no matter what we did, not to sign any more,
that it would only make the Union stronger. He told us if
anyone mentioned the Union to us on company time, to
report it to the office and they would be discharged
immediately. He said if they tried to discuss it with us, to
tell them that we didn't want the Union in, that we were
not interested in it and we didn't want to be bothered with
it.... He continued talking about the girls trying to talk
to us about the Union, and he said if they did talk to us,
to come and report it to the office immediately, and he
didn 't mention Company time that time.""
Notwithstanding the foregoing, on cross-examination
Blackford conceded that she had omitted from her
account on direct examination that Dudley had told them
"that if anyone threatened you [i.e., Blackford and/or
Mandrell], to try to get you to join the Union, which he
[Dudley] did not think they would, you were to report it
to the office immediately" (emphasis supplied).
Assistant Personnel Manager Dudley ' s version of this
incident is that during this routine orientation of these two
new employees, he covered "the fact that the management
of Emerson Electric is against a labor union representing
its people at the plant, and the growth we've had in
Russellville , with the benefits, certainly were a record of
our own and we have made these decisions on our own,
and that we could see no way that a labor union could
assist the people in the plant. I [Dudley] also told the
ladies [Blackford and Mandrell ] that, after they started to
work, that if anyone wanted to discuss Unionism or
non-Unionism with them, that we would prefer them to
handle this on their own time, that it was a company
policy that this be discussed on their own time; that they
were being hired to perform a job, to learn how, and that
this was a company policy to handle anything like this,
pro or con, on their own time. I told them that if, after
they started to work, they were approached on this, that
"Complaint No. 2, par . 5(b)(i) and 5(b)(ii).
"In view of ( 1) Blackford 's immediately prior testimony that Dudley
specified Union talk "on Company time " (Tr., p. 356), (2) inconsistencies,
memory deficiencies , and other characteristics of Blackford' s general
testimony , including evaluation of her demeanor , and (3) contrary
testimony of Dudley and Mandrell , as described below, it is difficult for
me to believe that Blackford could really remember with such accuracy
that Dudley "didn't mention Company time that time" as she claims. I
therefore do not credit her statement to that effect , although , even if I did
credit it , I would still believe that in view of Dudley 's earlier specification
limiting his reporting request to union talk "on Company time" the shortly
following statement was still within that context.
EMERSON ELECTRIC COMPANY
they had every right to discuss it with their supervisor if it
came to a point where it bothered them, where they
couldn't do their job; if they did not discuss it with their
supervisor and wanted to come to personnel, they could
do that, also." Dudley flatly denied stating that the new
employees should not sign a union card or to say they did
not wish to do so, or that anyone soliciting them to do so
would be discharged, or that if they valued their jobs with
Respondent they would not sign a union card, or anything
on that order.
It will be recalled that according to the testimony of
Blackford as well as that of Dudley, another new
employee in addition to Blackford was present throughout
the incident in question. That employee, Mandrell, was
not called as a witness by General Counsel, but was
produced by Respondent. She (Mandrell) testified that on
the occasion described Dudley "told us [Mandrell and
Blackford] . . . . what the company expected of us. That
we would be on production line. And we'd have a certain
amount of time to make production. And he told us the
benefits that Emerson offered. And he said there was a
union trying to come in. And that we would probably be
contacted in the bath room to sign a union card. But we
didn't have to sign one. And he said if we was pestered
much about it to report to personnel. And he said he
didn't think we would be bothered by it on company time
because they knew the penalties." Mandrell flatly denied
that Dudley said anything "to the effect that if anyone
solicited you you were to report it to them and the person
would be immediately discharged" or "not to sign a union
card" ("He said we didn't have to") or that "if you valued
your job or if you wanted to stay employed at Emerson
that you should not sign a union card." On
cross-examination Mandrell added that Dudley had also
said "that we [Blackford and Mandrell] would probably
be contacted [to sign a union card]. That we could sign
one if we wanted to. And that, he left it up to us.""
On the record presented, I have no hesitancy in
preferring and accepting Dudley's version, as in part
corroborated by Mandrell, of the incident under
consideration. I believe and find that his instructions to
these new employees on the subject of reporting regarding
Union solicitation "on Company time" (Blackford's own
testimony at one point) were not unlawful since this
cannot be said to have been other than a direction to new
employees to report violations of the Company's lawful
worktime no-solicitation rule; and Dudley's accompanying
remark, in that context, concerning discharge, was clearly
limited to violation of that rule. I accordingly find the
allegations under consideration not sustained.
6. February 1968
a. February 1, 1968: Boldin v. Austin
It is alleged" that around February 1, 1968,
Respondent's Foreman Boldin interrogated an employee
about the employee's union activities and also created the
impression of surveillance of its employee's union
activities by asking an employee for said employee's copy
of a Union handbill.
Respondent's employee Lucille Austin testified that on
or about February 1, 1968, Foreman Boldin came to
"Mandrell wore an "ELE" button and handbilled against the Union
during the election campaign.
"Complaint No. 2, pars. 5(c)(i)(A) and 5(c)(iXB)
89
Austin's work station and asked her, "`Lucille, do you
have a handbill of the Union, Union handbill,' and I
[Austin] said, `Yes,' and he [Boldin] said, `I would like to
have it.' I said, `Well, I can't give it to you because I have
been told not to solicit on Company time.' I said, `I know
my rights and everything,' and I said, `I'd rather not say
anything to you, or anything.' So, he said, `Lucille, what
can the Union do for you?' And I said, `Dude, I'd rather
not say anything right now,' said, `I'd rather wait and talk
to you later."' On cross-examination, Austin conceded
that, prior to this time, she had been wearing a Union
button since November, 1967 and had been making no
secret of the fact that she was supporting the Union and
that in fact on that very day, prior to her described
conversation with Boldin, she had been handbilling in
front of the plant "in plain sight of everybody who
happened to come along."44
On these facts, crediting Austin's testimony, it is found
that under the described circumstances Boldin's request
for a copy of the handbill which Austin had been publicly
distributing in plain sight of all - and which Boldin
himself could readily have obtained from her outside of
the plant - did not constitute coercive interrogation or
creation of the impression of surveillance in interference
with, restraint, or coercion of employee rights so as to
violate the Act.
b. February 6, 1968: Nuyt v. Pulley
It is alleged" that around February 6, 1968,
Respondent's Foreman Nuyt interrogated and threatened
an employee with discharge in relation to union activities.
The testimony of Respondent's "A" shift (day, 7
a.m.-3:30 p.m.) employee Toni Pulley indicates that, after
having been opposed to the union previously, she
apparently underwent a change of heart in January 1968,
and commenced to participate in Union affairs and
activities. According to Mrs. Pulley's testimony, on
February 6, 1968, she reported to work at 5 a.m., and
around 6:30 or 7 a.m. noticed that her Foreman Nuyt,
with Assistant Plant Manager Koester and another
individual (Taylor) were "standing at the back of the
department where I worked, behind some boxes, and they
were observing me, they were watching me and talking,
and they stayed back there for a pretty good while ... .
pretty much until I went to break, which was about 9:15."
Later that day, Mrs. Pulley, who had worked for
Respondent four and a half years, was called to Foreman
Nuyt's office, where:
"The first thing he [Nuyt] said to me [Pulley] when I
got in there was that he had no complaints about my
job, that the quality and the quantity were good, but he
felt that my attitude and my personality had changed,
and he wanted to know the reasons why. I told him that
I didn't understand what he meant, and he said, `Well,'
he said, `has anybody - ' said, `has the Company done
anything to you,' and I said, `no, sir.' He said, `has any
of the girls you work with done anything to you,' and I
said, `no, they haven't.' So, he said that it had been
noticed that there were several people coming by my
machine and talking with me during working hours, and
he wanted to know what they were talking about. I told
him that namely they were talking about my husband
and the fact that he had recently passed away, and they
"Boldin denied ever asking anybody for a handbill.
"Complaint No 2, pars. 5 (d)(i) and 5(d)(ii)
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were expressing their sympathy, some of them, and
others were interested in buying some of his shop tools.
He asked me, six times, was that all I talked about, and
I said, `Yes, sir, that's all I talked about.' Then he went
on and asked me what was wrong , and he said that he
didn't think I was happy in my job, and I told him that
I was happy with it, that I hadn't no complaints about
it, and he said, well, he couldn't understand why my
attitude had changed about it. He said there was a time
when I talked about my job and showed a lot of interest
in it , and he was concerned because, he said, that I had
a lack of interest in my job, and he said if there was
anything that he or Emerson Electric could do for me
or to help me, that they would be glad to do it. I told
him that I had not lost interest in my job, that I was
still as interested in it as I ever was and I still needed it
as badly as I ever did. So, he asked me several more
times what was wrong, and then he told me that Walt
Taylor ahd Harold Koester - I asked him what
brought all this on and he said, `Walt Taylor and
Harold Koester have been observing you,' said, `they
are watching you,' and he said, `I'll have to tell you that
you are not allowed to talk to anyone during working
hours,' and he named the inspectors and, in particular, a
maintenance man whose name was C. R. Boley, and no
girls off of any other line. As a matter of fact, I wasn't
supposed to talk to anybody, and if anybody stopped at
my machine, that I was to tell them that Glenn [Nuyt]
said that I was not allowed to talk to anybody, and he
said if I did not do this, if I had to be reprimanded
again , the consequences could be serious because, that
he would have to take drastic action, and he said he
liked me, he liked my work and he'd hate to see me
lose my job. Then he told me to go back to my
machine ." (Emphasis supplied).
Foreman Nuyt's account of this episode was that on the
occasion in question:
I called Toni [Pulley] up to the office to talk to her,
and what I said to her, I was wanting to know if she
had a problem or what was wrong. She didn't seem as
friendly as she used to be. It seemed like something was
on her mind. She used to come in and say good
morning to me, and all, and it got to the point where
she couldn't say good morning or nothing, and I called
her up to find out what the problem was, if there was
anything we could do, if we had hurt her feelings... .
She said, no, there wasn't nothing wrong, that she was
happy and we never hurt her feelings. I asked her if she
was sure and she said, "Yes, I'm sure." . . . After I
talked to her a little more about it, was there anything
wrong or anything we could do, or what did we do or
had we done anything to hurt her feelings, then I
brought up the subject that I had noticed that from
time to time there was men from - employees from
other sections coming through and talking to her, and I
asked her if she would ask these people to move on so
it woundn ' t raise an embarrassing situation, so it
wouldn 't embarrass her and cause a bad taste in
everybody's mouth, because we didn't want people
moving in and out of the section, talking to the
employees. She said, well, she wasn't aware of it, and I
said that it was quite obvious these employees were
coming and talking to her, and I asked her if she would
just ask them to move on, and then it wouldn't
embarrass anybody, and she said she would.
Nuyt added that although he did not ask Pulley what
these conversations were about , she volunteered that it
was "personal business." He denied telling Pulley that she
could not talk to anybody or threatening her with
discharge for talking while at work. Denying that he had
called Pulley in to warn her not to talk, or that he had so
warned her, Nuyt insisted that he "called her in because it
seemed like there was something on her mind." Nuyt
denied that Pulley was prohibited from talking with the
other women in her work group, apparently in the
prevailing fashion in the plant. Nuyt testified that he was
unaware of any union activity on Pulley's part on the job
("She went around, about doing her job"), that he never
had any discussion with her on the subject of union, and
that he first became aware she was for the Union when
she started to wear a Union button. Pulley testified, on
direct examination, that she first began wearing a Union
button "about sometime in February, maybe the early
part of March [1968]. I'm not exactly sure."
On the record thus presented, particularly in the
absence of evidence as to the nature, circumstances, and
subject matter (other than "personal" and pertaining to
her late husband) of the alleged visitations and
conversations with her apparently while she was at work
- evidence which Pulley and others could readily have
supplied - there would appear to be no basis other than
surmise and conjecture, for concluding that the purpose of
Nuyt's talk with Pulley was other than as described by
Nuyt. It has repeatedly been pointed out that such
surmise and conjecture are an impermissible basis for
findings and conclusions governing this administrative
proceeding. It is accordingly found that the allegations
under consideration have not been established by
substantial credible evidence as required.
c. Early February 1968: surveillance by Boldin
It is alleged" that in early February, 1968, Respondent
through its Foreman Boldin engaged in surveillance over
its employees' protected concerted activities.
Credited proof' establishes that in connection with the
attempt to unionize Respondent's Russellville plant,
Union Organizer Betty Heiby in early September, 1967
established and thereafter maintained her Russellville
headquarters in Room I of the Town Motel, one of
approximately six motels or hotels in that place. Room l
is an end room of the L-shaped motel near a sidewalk on
Fourth Street, with a window but not the door of the
room facing the street. The room had a small light,
outside the door, invariably lit at night as well as the
motel neon sign; additionally, there was a street light.
Almost opposite the motel, but at a slight angle to the
right of Room I and at a distance of about 110 feet was a
Phillips 66 automobile service station, which figures in
events to be described." Around the period of time here
involved, that filling station closed around 9 p.m., with the
lights turned off except for an inside light. Various,
perhaps numerous, employees of Respondent visited Mrs.
Heiby in Room 1 of the Town Motel, both during the day
and also, in the case of "B" or nightshift employees whose
'Complaint No 2, par 5(c)(iv)
"Testimony of General Counsel witnesses Heiby, Austin, and Goodman,
and of Respondent's witness Boldin.
"According to the recollection of General Counsel witness Heiby (the
union organizer), the station was started in December , 1967, when it would
remain open until around 1 l p in , changing to 9 p in around January
1968. According to Boldin, although the station opened at 6 a.m , the
closing time depended upon traffic and was neither set nor at any time
changed.
EMERSON ELECTRIC COMPANY 91
hours ended at midnight or even later in case of overtime,
during the night. It is undisputed that Dudley Boldin, one
of Respondent' s "B" (night) shift supervisors, owned or
had a substantial ownership interest in the Phillips 66
service station opposite the motel, and that he regularly
went there after his work at Respondent's plant ended -
i.e., sometime after midnight. There is no doubt that
Boldin had the right to be there. The accusation is that
from that vantage point Boldin spied on the group in and
around Room l of the motel. Boldin , on the other hand,
claims that he went to his service station in order to check
its receipts and sales tallies as he had to do, and had the
undoubted right to do, as an owner of the business. This,
then, is the focus of the issue: - since there is no
suggestion that Boldin did not personally have bona fide
substantial ownership interest in the service station and no
suggestion that he acquired that interest for the purpose of
spying upon his employer's employees' union activities,
and since therefore he had every right to be there, did he
spy upon those employees' union activities while he was
there during the hours after midnight when his own work
tour at the factory ended?
On this specific point, General Counsel witness Lucille
Austin (as previously indicated in various connections, an
employee of Respondent) testified: "Well, I would see him
[Boldin] over there [in his Phillips 66 service station], in
the inside. He would be looking around, standing
sometimes . Several times I've seen him looking toward
the motel . Sometimes it would be 1:00 and
sometimes 1:30. Sometimes he stayed longer and
sometimes he didn't stay as long. . . . About an hour
sometimes and sometimes less." According to employee
Polly Goodman (also identified previously in various
connections), on one occasion late in February at 3:30
a.m. from the Town Motel she observed Boldin "came out
of the service station, to get in his truck." The following
day Goodman went to the winding room office and told
her Foreman Boldin there "that I [Goodman] saw him
[Boldin] last night, and he said, `Well, where did you see
me,' and I said, `Over at the service station.' I said, `What
were you doing there at that time of night,' and he said,
`Oh,' said, ` I was going over my records.' "" According to
Goodman, she thought she saw Boldin at his station
several times again that week . Asked - on direct
examination - what she "observe[d] him doing,"
Goodman's response was, "Well, he would - about two
or three times I saw him pull in over there, and he would
go inside and then maybe it would be an hour or so before
he came out . I mean , I couldn't see what he was doing in
the service station . You can' t see the inside there."
(Emphasis supplied.) According to Goodman, while she
and other employees were in motel Room I with Heiby,
the drapes of that motel room "were closed." Goodman
estimated, concededly without actual knowledge, that the
street lights would be sufficient to enable a person at the
service station to observe people entering and leaving
Room I of the motel; she conceded that after midnight
the motel itself was not well-lit, but dark. According to
Goodman's testimony, her attention to Boldin was
"The balance of this conversation is considered infra, under date of
February 16, since it also appears to be alleged in the complaint as an
independent violation that when Boldin thereupon asked Mrs. Goodman
where she was when she saw him, Boldin thereby committed unlawful
interrogation . (The expression "appears to be alleged" is employed
because , in the absence of specific dates and names of employees in the
complaint , in certain instances , such as this, one cannot be certain which if
any allegation or allegations of the complaint certain testimony is intended
to relate to )
attracted when she heard the sound of his truck pulling
into his service station, whereupon she opened the motel
room drapes slightly and she "just watched . . . for a
while."
Respondent's Assistant Foreman Boldin testified that,
while working for Respondent in that capacity on the
night shift (approximately 2:30 p.m. to midnight, plus
overtime; but even without overtime he as a supervisor
was unable to leave before 12:45 a.m.), he acquired a
partnership interest in the service station in question on
December 1, 1967 and held it until August 1, 1968. He
worked there regularly on Saturdays and Sundays, as well
as sometimes during the day and sometimes during the
night. He checked the station accounts three times a week,
in a small office at the back of the station, partitioned off
by concrete block walls and a door from the rest of the
station. The office light by which he worked would
probably not be visible outside of the office or on the
outside road, according to Boldin. He also sometimes
checked cash register tapes and figures on the cash
register in the front portion of the station. Boldin readily
conceded that he had heard - as seems, indeed, to have
been common knowledge - that the Union's
"headquarters" were in Room 1 of the Town Motel and
that it was a matter of general knowledge around the
plant that employees (although not which ones) were
visiting there. He also testified that "I believe one night
they was having something down there. I didn't pay any
attention to it.... Just saw a lot of activity over there as
I pulled into the service station. It could have been
anything as far as I know . . I mean, you know.
People. Traffic." He denied that he at any time watched
to see who was going in or coming out of Room I of the
motel - he neither spied nor consciously avoided looking
in the direction of the motel.
Upon the record presented, I find that General Counsel
has failed to meet his burden of establishing by a fair
preponderance of substantial credible evidence that, as
alleged, Respondent through its supervisor Boldin engaged
in surveillance over its employees' protected concerted
activities at the Town Motel in Russellville. As has been
indicated, there is no suggestion that Boldin 's proprietary
interest in the service station across the road from the
motel was other than legitimate, or that it was acquired
for surveillance purposes, or that Respondent was in any
way associated therewith. Within that frame of reference,
Boldin had the right to be there. It has not been
established by a fair preponderance of substantial credible
evidence that Boldin utilized his service station as an
observation post or for the purpose of spying upon
employees' union activities, or for any purpose other than
the exercise of his legitimate business interests as he
described. Furthermore, it was a matter of extremely
common knowledge in this small locality that the Union
"headquarters" were in Mrs. Heiby's room at the Town
Motel. Boldin 's ownership of the service station across the
road was also unconcealed and well known. It might be
said that if the Union or employees felt that Boldin's
coming to and from his own business was embarrassing or
suspicious , or regarded as a threat to the success of the
unionizing effort, it would have been a simple matter to
relocate Mrs. Heiby's room elsewhere at that or one of
the other motels or hotels. Furthermore, there is no
persuasive proof, as distinguished from speculative
conjecture, that Boldin actually spied, although it is
certainly understandable that the employees supposed that
he did. It has not even been credibly established that there
was any human visual capability of making personal
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
identifications at night at the distance and angles involved
under the described illumination conditions. The
impression is conveyed by at least some of the employee
testimony that those inside of Room 1 of the motel who
were cautiously peering out from behind the closely
draped windows there , were perhaps watching Boldin
rather than that he was "watching" them.
d. February 10, 1968: Boldin v. Goodman
It is alleged" that around February 10, 1968,
Respondent through its Foreman Boldin interrogated an
employee about the employee's union activities.
Employee Polly Goodman testified that on February
10, 1968 , as she was passing by the winding room office,
Foreman Boldin called her in and proceeded to ask her,
"I want you to give me 14 reasons why anyone would be
for a Union ." According to Goodman , she replied that "I
[Goodman] didn 't know whether I could give him [Boldin]
14 or not , right off, and he says, 'Well , convince me that
we need a Union,' and I told him that I'd be wasting my
time because he couldn 't vote, anyway. He wanted to
know how we knew when we got enough cards signed....
I said , 'If they signed up the year before,' I said , 'I think
they would still stay with what they did a year before.'
Say, if someone voted a year before , I told him, had
signed the card a year before then , I said, 'If they signed
another one this year ,' I said , 'I think they would still
stay .'. . . and he asked me what we told the people when
we talked to them , and he wanted to know why I was
sticking my neck out for the union.... I said, 'Someone
has to.' . He asked me if they paid us anything for
getting cards signed.... I told him no, that we hoped to
get a good union in and that would be all we wanted."
Goodman swore that she discussed this conversation only
with Union organizer Heiby (and counsel for General
Counsel).
Foreman Boldin testified he was unable to recall any
conversation of the nature described by Goodman , but did
not deny that it occurred.61
Crediting Goodman's testimony , I find that on
February 10, 1968 , Respondent through its supervisor
Dudley Boldin interrogated its employee Polly Goodman
regarding her union activities , in interference with,
restraint, and coercion of her rights under the Act.
e. February 14 and 16 , 1968: Black v. Austin dr
Goodman
It is alleged" that on or about February 14, 1968,
Respondent through its Personnel Manager Black created
the impression of surveillance over its employees' union
activities and unlawfully restricted union solicitation on
Company property; and that on or about February 16,
1968 , Black threatened discharge for Union talk "on
company time, thereby unlawfully limiting solicitation ...
on Respondent 's property."
Respondent' s employees Lucille Austin and Polly
Goodman testified that around the foregoing time they
together went in to see Personnel Manager Black in his
office and asked him for a copy of a document concerning
the Union which they had seen posted on the Company's
"Complaint No. 2, par. 5(c)(ii).
"It is noted that General Counsel witness Lucille Austin testified to a
substantially similar episode in Boldin 's office a few days later, discussed
infra, "f." under date of February 16, 1968.
"Complaint No. 2, pars. 5(a)(i) and 5(a)(ii).
locked "Fact-Rumor" bulletin board. According to Austin
and Goodman, Black indicated they could not, since "If I
had wanted this distributed, I wouldn't have put it under
lock and key"; and when they asked Black if they could
"put up our rumors and facts ," he said no but that he
would find out and let them know later or the next day.
According to Goodman , she then said , "'Mr. Black, since
I have been called into the office and they've threatened to
fire me for working for the Union, suppose I was working
on my job and I was talking to one of the other girls
about the Union, was that soliciting? You can be talking
about the Union and still not be soliciting, can't you?' I
[Goodman ] said, 'Suppose a girl has already been signed
up, she's already for the Union , you can't be soliciting
them, can you?' And he [Black] said , 'There's some
people in this plant , as far as I'm concerned , they can
open their mouth and mention the word Union and I
would consider it soliciting , even if the word Union is
mentioned .' " According to Austin , who was there at the
same time, what Goodman said was, "'Mr. Black, what
do you mean about, if we are on our job, doing our job
and the Union is brought up and we say something about
it, and we are doing our work and everything, is that
soliciting?' He [Black] said, 'As far as I am concerned,
that is soliciting.' " It was only on cross-examination that
Austin testified that Black said, in response to Goodman's
question , "Some people in this plant , if they open their
mouth and say 'Union ' as far as I am concerned it is
soliciting."
According to Personnel Manager Black, he did indeed
have such a conversation with Austin and Goodman when
they called at his office before reporting for work. After
telling them in response to their request for use of the
Company 's locked bulletin board "to explain the union's
position" on certain matters , that he would check and let
them know, so far as Black could recall it "Miss Austin
said that she felt like she was intimidated and coerced at
that time [i.e., on November 16, 1967, when she,
Goodman , and Hargrove had been called in by Plant
Manager Johnson upon the basis of complaints received
from other employees allegedly resentful over being
"harassed" or "bothered" by these three for soliciting
them during working time]. And I reminded her [Austin]
that there had been no coercion or threats of any kind.
That this had merely been a warning . One of these girls
[i.e., Austin or Goodman] started asking about the ELE
["Emerson Loyal Employees"] club. I believe it was Mrs.
Goodman that asked me if I knew anything about them.
My comment was that I did not and that I did know that
they were passing out leaflets and putting ads in the
newspaper and on the radio . I was asked if I knew who
was behind the ELE club and I said I only knew those
people who had put their signature to the ads in the
newspaper for sure to be connected with it. And then one
of the girls accused me of knowing that the company
financed the ELE club. And this I denied with a statement
that this definitely was not true." On February 16,
according to Black , he again met with Austin and
Goodman, declining the use of the bulletin board in
question" "Now, at that point Polly [Goodman] brought
up the fact that during the meeting on the 14th that I had
made a statement that anyone who, that there were
certain people out in the plant that if they mentioned the
word union that I would automatically assume that they
were soliciting on company time . I corrected her with a
"Inasmuch as it is not claimed that this was unlawful, it is unnecessary
to devote consideration thereto.
EMERSON ELECTRIC COMPANY
statement that I felt like she had misunderstood me. That
I had made the comment that there were certain people, if
they used the word union during working time, then I
would consider this soliciting. And this conversation then
got into a question of just what is soliciting and what is
not. I gave these girls my definition of soliciting. . I
told these girls that soliciting in my opinion was where
you were attempting to persuade someone to come over to
your way of belief or to purchase an item from you that
perhaps you weren't looking at or shopping for. The
comments then went to the ELE club. That these people
were soliciting on company time. And my answer was that
we had no knowledge that these people were soliciting on
company time. That if we received complaints from
employees that we would discipline ELE members just as
we had disciplined these two girls back in November."
Black denied stating that as far as he was concerned when
some people opened their mouths it would be solicitation.
There is thus here again presented, as in so many other
aspects of this case, at least in part an issue of credibility.
Although upon comparative demeanor observations I
resolve this in favor of Personnel Manager Black, even
were it otherwise I would still not find the indicated
conversation, considering the total background and setting
in which it occurred, to establish the allegations under
consideration. It is clear from the November 16, 1967,
incident and preceding events forming the backdrop of
this January 14-16, 1968 conversation which was
precipitated by Austin and Goodman seeking out Black,
that the entire context of these conversations was
Respondent's insistence - as specified in its
no-solicitation rule - that it would not tolerate
solicitation in the plant during employees' working time.
If, in response to Goodman's provocative hypothetical
question whether Black would consider Union talk during
working time between two employees who were already
members of the Union - which neither Austin
corroborated nor Black conceded was asked - Black
indicated he would consider Union talk on the part of
certain employees as solicitation, it cannot be said as a
matter of law that such a response to such a question
against such a background was unlawful, in my opinion. It
is clear that the message that Personnel Manager Black
on this occasion, as well as Plant Manager Johnson on
previous occasions, was trying to get across was that
worktime was for work. Granted, as it must be, the
propriety of such a requirement, if, on top of knowledge
backed by documented proof already in his possession as
Personnel Manager, Black heard that a union activist who
had already been warned against Union solicitation during
worktime was again engaging in union talk during
worktime, it would be too much to require Black to know
whether the other employee was or was not a Union
member before ordering it to be stopped. Furthermore, it
is difficult to see how Black could find this out without
risking violating the Act through interrogation. Moreover,
it is highly doubtful whether Respondent would be
required to tolerate talk on any subject, including the
Union, during paid worktime, even between known union
members, if interfering with work. I find that upon the
record as a whole the complaint allegations under
consideration have not been established by substantial
credible evidence.
f. February 16, 1968: Boldin v. Austin; Boldin v.
Goodman
Austin
It is alleged60 that on or about February 16, 1968,
93
Respondent through its Foreman Boldin unlawfully
interrogated an employee about his union activities.
Respondent's employee Lucille Austin testified that
around February 13, 1968, Respondent's Foreman Boldin
called her to the winding room office. Austin's account of
what ensued follows (emphasis supplied):
When I [Austin] went in he [Boldin] said, "Lucille, I
am going to give you your six-months interview," and
said, "If you've got any complaints or anything, just
say so," and he told me about my good record, said my
record was good and everything. I was sitting there and
I said, "Well, Dude, there is no need to say anything
because," I said, "We never have got anything done
that we 've asked for several times ." He said, "Well, do
you think the Union can solve your problems," and I
said, "Yes, I do."
He said, "Well, Lucille, why do you want to stick
your neck out for the Union people," and I said,
"Well, someone has to and I just as well to." So, he
said, "Well, what about if someone signs up with you,"
says, "How do you know that they will vote for it?"
And I said, "Well, I just take their word for it."
Foreman Boldin 's account of this interview, which he
conceded occurred, is (emphasis supplied):
I [Boldin] called her [Austin] to the office on her
merit review I think. And told her, reviewed her work
and told her she was doing a good job and attendance
was good and her general review and asked her if she
had any problems or complaints or anything like that.
And I'd asked her why she would be for the union. She
said that she would like to see an individual efficiency
for everybody. And that she thought maybe right now
the way it stood that people could be fired without
cause or anything like that. And that she thought
Emerson needed a union . . . . I asked her why she'd
just be for a union.
Boldin 's further testimony indicates that his questioning
of Austin concerning the Union was contrary to
instructions he had received from Respondent.
Although upon Austin's version of the interview under
consideration I would not find a coercive or otherwise
unlawful interrogation since among other things she
(under her version, it would seem) brought up the subject
and what ensued had no coercive aura under such
circumstances, nevertheless, upon the basis of Boldin's
own version of the incident, establishing that it was he
who launched into an interrogation about Austin's union
views in the formal atmosphere of the office "locus of ...
authority"" to which he had called her, I find that Boldin
unlawfully interrogated Austin on that subject. That in so
doing Boldin violated Company instructions is immaterial,
since to the employee Foreman Boldin speaking in the
office in his official capacity represented Respondent. It is
accordingly found that the allegation under consideration
has been sustained.
Goodman
The pleadings as amended and several times reamended
are so complex, the issues so manifold, and the evidence
so heterogeneous, that - within the boundaries of
practicality - pleadings and proof may not in every
instance readily be matched with reasonable certainty.
Thus it is in this particular instance, that with two
"Complaint No. 2, par. 5(cxw).
"General Shoe Corporation, 97 NLRB 499, 502.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
possible incidents of interrogation on or about February
10, 1968 (one testified to by Austin and one by
Goodman), each involving Respondent ' s Foreman Boldin
- who is the only individual identified by name in that
allegation for that date (Complaint No. 2, par. 5(c)(ii)) -
it is not possible to be certain which incident was pleaded.
For this reason, I deal with both; what seems to be the
more likely intended incident, that involving Austin, has
been disposed of above. The other incident, involving
Goodman, will now be dealt with.
The Goodman incident has already been partially
described in another connection, supra, "c. Early
February, 1968.• surveillance by Boldin." There, it will be
recalled, after Goodman from behind the closed draperies
of Town Motel Room 1 had observed Boldin come out of
his service station and get into his truck, the following day
Goodman went to the office of Boldin (who was her
supervisor) and asked him what he was doing there.
According to Goodman, Boldin replied, "'I [Boldin] was
going over my records. Where was you [Goodman] at?' I
[Goodman] said, `Well, you [Boldin] know where I was
at,' and he said, `What do you all do over there that time
of the night,' and I said, `Well, we sit around and talk.'
He said , `Well, how late do you stay over there?' And I
said , `Oh, maybe till 5:00 or 6:00 o'clock in the morning
sometimes."' On cross-examination, Goodman added that
Boldin then remarked "that we must have an awful lot to
talk about to stay up that late." Also on
cross-examination , Goodman repeated that she was "the
one who sought out Mr. Boldin" and that she was "the
one who asked him the question."
Under the described circumstances, I find the foregoing
not to have constituted coercive or otherwise unlawful
interrogation within the meaning of the Act. It was
Goodman who sought out Boldin in the latter's office and
who provoked Boldin's indicated, reasonable reaction to
Goodman's question. In the indicated context, Boldin's
words may not realistically be viewed, in my opinion, as
having interfered with, restrained or coerced Goodman (or
any other employee) in the exercise of any right secured
by the Act. It is accordingly found that to the extent the
complaint allegation under immediate consideration may
encompass the described Goodman incident, it has not
been sustained.
7. March 1968
March 11, 1968: Adler v. Goodman
It is alleged56 that on or about March 11, 1968,
Respondent through its supervisor Adler created the
impression that its employees' union activities were under
surveillance "by implying to an employee that he knew
the said employee had given evidence to an agent of the
Board during its investigation of an unfair labor practice
charge filed against Respondent."
Respondent's employee Polly Goodman testified that
on March 11, 1968, the plant bulletin board contained an
announcement or information regarding the issuance of an
unfair labor practice complaint by the Board against
Respondent - in Mrs. Goodman's words, "how many
complaints and how many supervisors were involved at
that time."" According to Mrs. Goodman, Adler asked
"Complaint No. 2, par 5(e).
"It is noted that Adler ( among others) is mentioned in Complaint No I
in regard to two alleged incidents considered supra - one in
mid-November 1967 (Complaint No. 1, par 5(e)(u), which was withdrawn
her if she had read this notice and Goodman told him she
had. Thereupon, according to Goodman: "He [Adler]
said , `Polly, I know you've betrayed my confidence in
you,' and I [Goodman] said, `What do you mean?' He
said, `Well, you and Regina [Casebier] were the only ones
that I talked to about the Union.' " Adler gave a
somewhat different account of this conversation. Under
Adler's version, in the course of a conversation with
Goodman, after she asked him whether he had "heard
anything yet" and he asked her if she had seen the bulletin
board and she said she knew about it, Goodman asked
him "how did I [Adler] think a union would go should
there be an election. I told her [Goodman] I didn't have
any idea. And she said, `Well, reckon they'll have the
election before the layoff?' I told her, no, I didn't know.
But as far [as] that was concerned it wouldn't have any
effect on the new people voting . . . . I said, ' I guess I'd
better hush. I shouldn't be talking to you.' And she said,
`Why?' And I said, `Because I feel like that you have
betrayed my confidence in you.' And with this I left."
Although I prefer and accept Adler's account, in my
opiniotf neither the statement which Adler says he made
nor the statement attributed to him by Goodman
establishes that, as alleged, Adler thereby created the
impression of surveillance through implying to Goodman
that he knew she had given evidence to the Board. To
begin with, the basic (and only, aside from the one
withdrawn by General Counsel) allegation of Complaint
No. I involving Adler has not been found. However,
Adler could have supposed - even known to a certainty
- that Goodman was the source of certain allegations of
the complaint, without this necessarily in any way
implying that surveillance lay at the root of his
supposition or knowledge. A statement by A to B, that A
believes or knows that B has reported A to the authorities
since the authorities have instituted proceedings against A,
and that B must have been the source of the information
upon which the complaint is based since A disclosed the
information to B only, is as a matter of law, in my
opinion , not equivalent to an accusation by A to B that
B's movements or actions in reporting the matter to the
authorities havd been under the surveillance of A. I
accordingly find the allegation under consideration to be
devoid of merit.
8. April 196858
a. April 16, 1968: Personnel Manager Black's threat
to all employees of economic losses in event of
unionization
It is alleged59 that on or about April 16, 1968,
Respondent in a speech to assembled employees, through
its Personnel Manager threatened them with "loss of
substantial benefits if they selected the Union as their
bargaining representative."
It is undisputed that on and around April 16, 1968,
Respondent's Personnel Manager Black addressed plant
at the trial here) and the other on November 17, 1967 (Complaint No. 1,
par 5(e)(4), involving the alleged creation of the impression of
surveillance), which has not been found
"Allegations (Complaint No 2, pars 5(f)(i), 5(f)(ii), and 5(f)(iii)) that
around April 17, 1968, Respondent' s Foreman Gooch interrogated an
employee concerning his union activities , solicited the employee to cease
support for and activity on behalf of the Union, and threatened the
employee's discharge for union activities , were withdrawn at the trial by
General Counsel
"Complaint No 2, par 5(a)(ui).
EMERSON ELECTRIC COMPANY
employees in about 30 groups of 20 to 40 employees each
in the plant conference room near the office, in the
presence of other management representatives, on the
subject of the upcoming Board election to be held on
April 19; and that in the course of those addresses Black
exhibited on a screen certain news clippings and other
material. A stipulation of the parties establishes that "all
of the speech in question, and all the charts [etc.] that
were projected" are contained in Joint Exhibit 1,
consisting of a script which Black read;"° and that the
dates on which Black did so were various dates from
about April 9 through April 16."i
A review of Black's remarks to these employee
assemblages shows that he told them his purpose was "to
discuss the coming election and . the company's
position on the union." At the outset he emphasized that
"I would like to make it clear that the coming election is
one of the most important events many of us have faced
since starting to work at Emerson .... The results of this
election will have a tremendous effect upon all of us...."
Black described the Board's election system, pointing out
that under its secret-ballot voting procedure the manner in
which individual votes are cast cannot be ascertained -
"So, for goodness sake, don't let anyone tell you that
signing a card means you have to vote for a union. You
vote the way you want to!" Making it "clear that we are
opposed to a union in this plant," Black reminded
employees that the Union had lost two previous elections.
He differentiated between union promises and
performances, indicating that such promises are not
bankable. Reviewing for employees the salary
improvements they had received in past years without a
union and the likelihood that these would continue, he
stated that unionization would result only in introduction
of the Union into a bargaining process, with Union
personnel gaining the benefit of substantial dues paid by
employees. He indicated that withdrawal from a union
could be time-consuming . He showed or purported to
show that in certain instances discussions affecting union
members were or could be made by others than the
employees involved. He referred to strikes elsewhere and
showed their apparent significance in cost to employees.
The thrust of Black's speech was an appeal to employees
to cast their ballot against the Union as unnecessary, if
not potentially detrimental, to their continued well-being
at the plant.
General Counsel produced evidence of additional
remarks made by Black "in discussing the charts and
projections." This evidence consisted of testimony of
employee Polly Goodman, essentially corroborated by
employee Lucille Austin, that Black stated at one of these
sessions, as he was referring to a chart showing the
benefits enjoyed by employees, that with a union
bargaining "you start from the bottom and then work
your way up." Black testified that he did not deviate from
the speech, but that after the speech in answer to
questioning from the floor he stated, to the best of his
recollection, "that if a union came in that bargaining did
not start with present benefits, but that bargaining would
"As indicated below , a proviso to the stipulation preserved General
Counsel' s right to submit evidence of supplementary remarks by Black
"The date "April 5" in the stipulation (Tr, p. 194) would seem to be an
inadvertence or a reportorial or typographical error, since it is referred to
as "Monday" and occurs in a series of dates between Friday , April 12, and
Tuesday, April 16 The parties' stipulation states that the 2d, 3d, and 4th
paragraphs on page 4 of Joint Exhibit I may have been omitted in certain
groups because of "considerations of time."
have to start from scratch and go up from there."
Although Black's statement as recollected by him may be
somewhat stronger than the one attributed to him by
Goodman and Austin, in the context here presented -
and I credit the testimony of Black, whom I believe to be
a truthful person, that it was in answer to employee
questioning - in my opinion under neither version does
the statement deserve to be viewed as threatening,
coercive, or otherwise unlawful under the Act. Employer
(as union ) statements that bargaining will be from "the
bottom... up" or "from scratch" or comprehensive on all
subjects in relation to all other subjects to be negotiated,
may or may not be coercive depending upon the total
circumstantial congeries presented. Wagner Industrial
Products Co., 170 NLRB No. 157, with which cf., e.g.,
Federal Envelope Company, 147 NLRB 1030, 1037-1041.
Such statements may be unlawful where, for example,
spontaneously beamed at employees in company with
other threats of withdrawal of economic betterments, as in
Federal Envelope Company, 147 NLRB 1030, and cases
cited at 1040, fn. 25. Here, however, the remark was
made only in answer to employee questioning, and in the
absence of accompanying threats or otherwise coercive or
improper remarks. Under such circumstances, it would
not appear that Black's answer standing alone may fairly
be regarded as coercive or threatening, or as other than a
technically accurate reply to the question asked."Z
Beyond the First Amendment's free speech guaranty,
Section 8(c) of the Act expressly secures the right of
employers and unions alike to:
"express[ing] ... any views, argument, or opinion... if
such expression contains no threat of reprisal or force
or promise of benefit."
The Supreme Court has reminded us (Thomas v.
Collins, 323 U.S. 516, 537-538):
. . . . decision here has recognized that employers'
attempts to persuade to action with respect to joining or
not joining unions are within the First Amendment's
guaranty. Labor Board v. Virginia Electric & Power
Co., 314 U.S. 469. Decisions of other courts have done
likewise. When to this persuasion other things are added
which bring about coercion, or give it that character,
the limit of the right has been passed. Cf. Labor Board
v. Virginia Electric & Power Co., supra. But short of
that limit the employer's freedom cannot be impaired.
Under these basic principles, reemphasized in a long
array of cases, Respondent did not, in my view, in the
speeches by its Personnel Manager Black stray into the
forbidden area of threats or coercion. It is accordingly
found that the complaint allegation to the contrary has
not been established by substantial credible evidence.
b. April 30, 1968: discharge of Sally Blackford
It is alleged" that on April 30, 1968, Respondent
"Further, General Counsel witness Tooley alone testified that in
response to a question by him - not clear whether or not asked publicly
or privately - Black "said if I [Tooley] turned out too many pieces that I
could be fined by the Union for it, that they would make me pay a fine."
At this time, Tooley was paid on a "weekly basis plus line production "
Assuming the remark was made as Tooley testified , in response to
Tooley's question, I perceive nothing unlawful about it Cf Scofield v
N L R B ( Wisconsin Motor Corp ), 393 F 2d 49 (C A 7); N L.R B v.
Allis-Chalmers Manufacturing Co, 388 U S. 175 In response to a leading
question by General Counsel as to whether he "recall[ed] any statement by
Mr Black as to the possiblity of the plant moving ," Tooley replied in the
negative
"Complaint No 2, par. 6
95
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged its employee Sally Blackford because of her
union membership, sympathy and activities, and in order
to discourage union membership.
Considerable testimonial and documentary evidence has
been supplied on the subject of Respondent's discharge of
Sally Blackford on April 30, 1968. It is Respondent's
contention that this discharge was the result of its
dissatisfaction with Mrs. Blackford's production and job
efficiency, perhaps attenuated by what is portrayed by
numerous of Respondent's witnesses as her unacceptable
job attitude and her peevish, insubordinate, or shrewish
behaviorisms toward plant superiors.
As has been indicated above" in another connection,
Blackford entered Respondent's employ around the end of
January, 1968, at the same time as Frances Mandrell.
Thus, her entire tenure, from start to finish, with
Respondent, was slightly over 3 months.
Although Mrs. Blackford was primarily a welder, her
duties included work tasks other than pure welding, at any
rate when her welding did not keep her busy full time or
almost full time. Thus, her primary job was to weld lead
wires to hermetic motors or stators moving along a
conveyor belt. However, when there were not enough
motors moving along the belt for her to receive for
welding and insulation, she was apparently expected to
move to the preceding work station in order to do or
assist in the doing of the work tasks (i.e., to attach, by
twisting, the lead wires on to the motors) done there in
order to provide her with motors to weld. It is
conceivable, as contended by her, that her doing this may
have posed difficult or even insoluble problems for her in
handling her welding duties; and also, as contended by
her, that additional problems may have been presented by
any failure at the work station following her welding
station to receive welded motors for further processing
(i.e., footpedal "pressback" and "blocking" or shaping of
welded wires), since a pile-up of welded motors would -
according to her - render it impracticable for her to
continue welding more motors, particularly when there
was no longer any space because of the small size of
available tables to stack work in process. Whether these
problems were the fault of Mrs. Blackford, in whole or in
part, or the fault of others, or exaggerated by Mrs.
Blackford, was litigated at considerable length. However,
the simple fact of the matter is that, even arguendo totally
crediting Mrs. Blackford's description of these problems,
they were work problems arising out of Mrs. Blackford's
perhaps justified dissatisfaction with the way the lead
attachment-welding and insulation-pressback-blocker cycle
or portion of the cycle, was industrially engineered and
operating at the plant. It may be that that cycle was
ineptly designed and hopelessly inefficient, rendering the
performance of her duties extremely difficult or even
perhaps impossible. It may be that she was being blamed
or held accountable for the fault of others, for the
inefficiency of others," or for her inability to do more
than it was possible for a person of her slight physique (as
described and observed at the trial) - or indeed for any
person - to do. But these were not union-membership or
union-activity related problems. There is no credible
"I.e., Belcher, Dudley , Koester , Patzius , Friedel, Meguir , and Johnson.
""b January 26. 1968: Dudley v Blackford."
For example , at the trial Mrs. Blackford ascribed part of her
production difficulties to the fact that the girl who was placing the leads on
the motors which Mrs Blackford was waiting to weld "was left-handed
and it made it hard for her to connect these leads to the motor without
bringing the covered wire over in an improper position to be welded... "
showing that these problems , or any of them, were
manufactured , trumped -up, or pretextual on Respondent's
part, nor of any unlawfully discriminatory application of
efficiency standards or work performance requirements to
Mrs. Blackford because of her Union membership,
sympathy or activities , nor of discriminatory application
to Mrs . Blackford as distinguished from nonunion
members, even assuming Mrs. Blackford ' s union
membership and activities were known to Respondent. It
is of course obvious that mere union membership and
activities do not insulate an employee from discharge for
other reasons.
Union membership and activities is not a shield behind
which a discharged employee can take refuge and claim
discrimination ... The burden remains upon the General
Counsel to prove that the reason for the discharge was
the employer's anti-union hostility . An employer is not
obliged to treat a union member differently or with
greater deference than any of his other employees. Poor
performance , misconduct and insubordination, for
example , do not have to be tolerated merely because the
offenders are among the plant ' s most active union
supporters . An employer ' s stated opposition to
unionization is not in itself sufficient evidence to sustain
a finding that an employee was discharged because of
discrimination against a union . [N.L.R.B . v. Bangor
Plastics, Inc., 392 F .2d 772, 777 (C.A. 6).]
The evidence on both sides clearly , indeed
overwhelmingly, establishes that Mrs. Blackford
encountered continuing problems with her supervisors in
the area of her productive and job efficiency , commencing
- according to Mrs. Blackford ' s own testimony - as
early as mid - March , less than 2 months after she was
hired , at which time credited evidence including records
establishes Mrs. Blackford was refused a merit increase
because her "quantity of work was poor.""
From the trial transcript (p. 414):
Q [By Mr . Hanna] Weren ' t you told frequently that
you had failed to make production?
A [By Mrs . Blackford] Yes.
Whether or not these job-related difficulties experienced
by Mrs . Blackford were justified is essentially beside the
point here . It may well be that from Mrs. Blackford's
point of view (as opposed to her Employer ' s) they were
not, since she appeared during her term of employment
repeatedly to be critical of Respondent ' s industrial
production practices and systems , as related to her
particular job duties and Respondent ' s job requirements
upon her. It may well be that some or even all of her
criticisms were and are justified . On the other hand, from
Respondent's point of view, however mistaken, if it was,
Mrs. Blackford was an inefficient or less efficient
employee than it was willing to continue to employ.
Substantial credible evidence , consisting not only of
"It is to be noted that this time - i e , mid -March 1968, Mrs.
Blackford, also according to her own testimony, had not yet taken part in
the union campaign - she did so only "after March the 26th ." When,
therefore, she told Foreman Belcher, upon being called to the office over
her production in mid-March , that "I [Blackford] felt that I was being
discriminated against ," it is apparent that the "discrimination" to which
she referred was unrelated to discrimination by reason of union activity.
Mrs Blackford conceded that "this came up before I started wearing the
[union] button [on March 261 . . a week before I started wearing a
button"; and on cross-examination she conceded that although she accused
Foreman Belcher that " I [Blackford] felt that he [Belcher] was
discriminating against me," "I [Blackford ] didn ' t tell him - didn't
mention Union activities."
EMERSON ELECTRIC COMPANY 97
credited testimony of numerous witnesses `" but also of
records maintained in the regular and continuing course of
Respondent ' s normal business operations and not created
for purposes of this proceeding - including production
records and work efficiency computations based upon
Mrs. Blackford's own production reports - amply
supports Respondent ' s contention that Mrs. Blackford's
production and efficiency were low, justifying her
dismissal for that reason,69 after efforts to improve her
performance and opportunities to her to do so proved
unavailing , climaxed by a stormy exchange with
supervisors on April 29 followed by a turbulent scene with
top management in the plant office on April 30, where her
behavior is described by Respondent (among other things
her throwing down the gauntlet and daring an immediate
discharge) as petulant and obstreperous if not
insubordinate and refractory, resulting finally in her being
requested or ordered off the premises.
Against a solid array of substantial credible testimonial
and documentary evidence supporting Respondent's
contention that Mrs. Blackford was dismissed for cause,
as indicated above, there is a dearth of evidence to
support the theory of General Counsel - who of course
carries the burden of proof here - that she was dismissed
because of her union membership, sympathy, or activities,
or to discourage Union membership. According to Mrs.
Blackford's own testimony, she joined the Union after her
production difficulties had started , and there is no
indication that her Union activity was in any way unusual
or more than minimal. According to Mrs. Blackford's
testimony , she did not sign a union card until "the latter
part of March," 1968, did not visit Union Organizer
Heiby's Room 1 at the Town Motel until around April 7,
and handbilled only on April 16, 17, and 30." Also
according to Mrs. Blackford, when on April 26 Foreman
Belcher again called her to his office and discussed her
production, he preceded his remarks on that subject with
the statement that "I [ Belcher] don't know how involved
you are with the Union and I don't want to know, but we
don't want a Union. I'm not for one.""
It may certainly not be said upon the basis of the
record presented that Mrs. Blackford was unusually active
in the Union, or that any such possible activity or
anything other than that after March 26 - in company
with many other employees - she wore a union button,
was known to Respondent . As has been pointed out,
according to her own testimony she first participated "in
"I.e., Respondent 's witnesses Belcher , Dudley , Koester, Patzius, Fnedel,
Meguir (Meguiar), and Johnson.
"Respondent 's complete file of all efficiency reports prepared and
maintained in the regular course of its business for all employees on the
entire connect line group for the period from February 6 to April 25, 1968,
appears to indicate a significantly and generally sustained lower efficiency
on the whole by Mrs. Blackford as compared to most if not all others
shown . These reports (exhaustively explained by Respondent 's time study
analyst Meguir), based on production figures as reported by Mrs.
Blackford herself, were not successfully refuted or overcome , although
opportunity was afforded to General Counsel for their study during the
course of the trial (Meguir's cross-examination being deferred over a
weekend for that purpose ). As explained by Meguir, the applicable basic
job analysis and standards were prepared in 1965 , 3 years before Mrs
Blackford was hired, eliminating the possibility of a contrived or
manipulated standard at any time during Mrs . Blackford's brief tenure
"On April 30 whether before or after her discharge is undisclosed
"Mrs Blackford testified that when she was hired , Assistant Personnel
Manager Dudley, upon interviewing and orienting her and Frances
Mandrell (who was hired and oriented at the same time as Mrs.
Blackford ), handed Mrs . Blackford some forms which Dudley had filled
this [Union] campaign in any way" only "After March
the 26th [1968]," when she commenced to wear a Union
button to work.
That production and workline efficiency loomed large
in importance to Respondent, and that this was
exceptionally well understood by employees, is confirmed
by the testimony of numerous of General Counsel's
witnesses" who, testifying about plant bulletin boards,
emphasized that they examined the employees' lunchroom
bulletin board with regularity in order to check on the
production efficiency records posted there by Respondent.
As has already been pointed out, Mrs. Blackford's
difficulties with management on the score of production
by her own admission antedated her advent into Union
affairs.
An employer does not violate the Act by expecting too
much of employees. Provided no violation of the Act is
involved, no offense against the Act is committed by an
employer who discharges an employee even at will or
whim . Act, Sec. 10(c); N.L.R.B. v. Great Dane Trailers,
Inc., 388 U.S. 26; N.L.R.B. v. Waterman S.S. Corp., 309
U.S. 206, 218-219; N.L.R.B. v. Finesilver Manufacturing
Company, 400 F.2d 644 (C.A. 5); Betts Baking Co. v.
N.L.R.B. 380 F.2d 199, 203 (C.A. 10); N.L.R.B. v. Ogle
out, to be carved by her for further processing, and that (still according to
Mrs Blackford 's testimony) alongside of an item "Attitude toward
Union ," Dudley had placed a question mark on her form She described
the paper on which this item was contained and thus allegedly marked as a
half-sheet "about like an index card " Dudley testified that at this
orientation he utilized his usual 8 1/2" by II" two-page checksheet,
containing the item Company "Union attitude," which referred to one of
the subjects he always covered with new employees - "This refers to what
I tell them [new employees ] the Company policy is as far as discussing this
on the job " Dudley produced and identified (as did Foreman Belcher) the
actual two-page form used for Mrs Blackford , in appearance it was unlike
what Mrs Blackford had described When shown this two-page form at
the trial and asked whether she had ever seen it before, Mrs. Blackford's
reply was "Not that I recall ." When asked whether it had been handed to
her when she was hired , she denied it She then swore she had never seen it
before Thereupon (still on direct examination ), asked to describe the
difference between the pages produced by Respondent at the trial and the
ones she had allegedly been handed , Mrs. Blackford's response was, "The
print , the letters were larger on the other papers There was writing all the
way across And the sheets were a little bit longer than this And the
lettering was a lighter purple than this." I cannot credit Mrs Blackford's
testimony in this regard . Particularly when weighed against the standard of
the balance of her testimonial level in other respects, it impresses me as
highly unlikely that she would or could remember such details as the size
of the letters and a difference in hue of ink . Indeed , on direct examination
(as well as twice on cross-examination ), Mrs Blackford had, with the
appearance of equal positivism , sworn that the print on these papers was
"in large black letters" It also strains my credulity to believe that a
Company of Respondent's size and obvious administrative experiential
level would design and publicize, much less hand to an employee to see, a
form of the nature and filled out as described by Blackford , rather than a
form of the type described by Dudley, whose testimony I credit.
Furthermore - if more is necessary - it will be recalled that Mrs.
Blackford had originally testified that the form in question which she
allegedly received was a half-sheet "about like an index card"; however,
when asked to explain the difference in the form she received from the 8
1/2" by 11" sheets produced at the trial , she testified that the sheets she
received "were a little bit longer than this." It will , finally, be recalled,
that I have rejected Mrs Blackford 's account of other features of Dudley's
orientation talk, as not squaring with Frances Mandrell's account thereof
("b. January 26, 1968 Dudley v Blackford," supra)
"I e., Mrs Blackford 's fellow-employees Polly Goodman (who also
testified that "now when they run [efficiency reports ] they [management]
usually call in the ones that don't make production and talk to them"),
Lucille Austin ("Of course I read it [bulletin board] all the time Because
our production , you know , is up on it"), Vera Hargrove ("I look on there
[bulletin board ] for our production.. I look at the production every
day"), Ida Harris ("Our efficiency is always there [bulletin board] And we
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Protection Service, Inc., 375 F.2d 497, 505-507 (C.A. 6),
cert. denied 389 U.S. 843; N.L.R.B v. Soft Water
Laundry, Inc., 346 F.2d 930, 934 (C.A. 5); N.L.R.B. v.
Redwing Carriers, Inc., 284 F.2d 397 (C.A. 5);
Dieckbrader Express, Inc., 168 NLRB No. 113;
Kayser-Roth Hosiery Co., Inc., 166 NLRB No. 56;
Guyan Machinery Company, 155 NLRB 591. No
persuasive evidentiary showing has been made of any
plausible reason other than those advanced and established
by Respondent by substantial credible evidence why -
out of 1,000 employees, with between one-third and
one-half Union button-wearing supporters, and a monthly
personnel turnover rate of around 2 1/2 percent - Mrs.
Blackford alone (aside from Martin 7 months earlier,
under the described circumstances) should have been
singled out for discharge.
For the benefit of Mrs. Blackford, it is emphasized that
there is neither desire nor power on the part of the Trial
Examiner to sit in judgment on whether she or the
numerous supervisory officials arrayed against her during
the stormy course of her brief employment with
Respondent were right or wrong as to how her job could
better or best be done, or indeed if it could be done at all.
It may be that Respondent was an inordinately exacting
and unreasonable taskmaster toward her, and that it
demanded a level of performance which she is not, and
perhaps few if any others are, capable of achieving. But
the Act under which this proceeding is brought, and which
therefore confines the Trial Examiner's legal powers, does
not require employers to be kind, humane, just,
understanding, or to possess other desirable human
virtues; it merely requires that they not violate the Act. I
find that it has not been established by substantial credible
evidence as required that Respondent discharged Mrs.
Blackford because of her Union membership, sympathy,
activities, or support, or in order to discourage union
membership. This, the measure and limit of the issue here,
has simply not been proved.
IV. REFERRED ISSUES ARISING OUT OF APRIL 19, 1968,
BOARD ELECTION
It remains to consider the issues referred by the Board's
Regional Director for Region 9, arising out of the
Representation election held by him on behalf of the
Board on April 19, 1968, among Respondent ' s Russellville
factory workers, upon petition of the Union filed on
March 14, 1968, and the parties' stipulation for
certification upon consent election. That election resulted
in a vote of 400 in favor of and 539 against representation
by the Union as collective-bargaining agent. ' On April
26, 1968, the Union filed timely objections to the election,
alleging misconduct or impropriety had so contaminated
the conduct of the election as to require it to be rerun.
Under current Board policy, only events occurring
between the filing of an election petition and the election
may form the basis for upsetting a Board-conducted
election result. Goodyear Tire and Rubber Company, 138
NLRB 453, 454-455; The Ideal Electric and
Manufacturing Company, 134 NLRB 1275, 1278. And, of
course, the improprieties claimed must be of such order as
at least to have contaminated the election process to the
extent that the result may reasonably be considered to
have been controlled or substantially affected thereby
In this case, the critical period involved was thus from
March 14 to April 19, 1968. Although the commission of
unfair labor practice in violation of the Act within the
critical period may prima facie warrant the setting aside
of an election (Industrial Steel Products Company, Inc.,
143 NLRB 336; Playskool Manufacturing Company, 140
NLRB 1417, 1419; Dal-Tex Optical Company, Inc., 137
NLRB 1782, 1786-87), it is unessential to the setting aside
of an election that the impropriety comprise an unfair
labor practice. Johnston Lawn Mower Corporation, 110
NLRB 1955; Sparkletts Drinking Water Corporation, 107
NLRB 1462; Peerless Plywood Company, 107 NLRB 427.
Inasmuch as no unfair labor practice has been found to
have occurred within the critical period here involved,74
our field of inquiry is narrowed to the issue of whether
cognizable impropriety other than an unfair labor practice
may reasonably be regarded as having affected the
election outcome or as having contaminated the Board's
official election process to an unacceptable degree.
First Objection to Election
The Union's first objection to the April 19 election is
that during the 2-week preelection period the Employer
made threatening speeches to assemblages of employees,
allegedly including threats of strikes, violence, loss of
benefits, loss of jobs, and plant removal in the event of
unionization ; and that employees could be fired for not
paying Union fines. Inasmuch as the evidence discloses
speeches only by Respondent's Personnel Manager Black
and its Plant Manager Johnson during the period specified
in the Union's objection, only those speeches need be
considered. Since Black's speech to employee groups has
already been described in detail in another connection
("8a," supra, under April 1968), it need not be here
redescribed.r' In addition to Black's speeches during the
2-week preelection period specified in the Union's
objection, a preelection speech was also made by Plant
Manager Johnson on April 17, 1968. In this speech,
Johnson reminded employees that they would soon be
facing their third representation election in 2 years;
reminded employees of the plant's growth and history of
steady improvements in wages and benefits; cautioned that
in a union context, dissension, strikes and violence can
occur, with some incidents of that variety already
look each day to see what our efficiency is We go by there each day
and check . Because our efficiency reports are always put up there And we
always look there to see how much we make each day . And we always go
by and look each day as we go by"), and Toni Pulley ("[the lunch room
bulletin board is] where they post our daily production . And that's the
reason I look at it") By way of contrast , Mrs Blackford allegedly recalled
seeing only one such production report on the bulletin board, with respect
to which " I [Blackford] don't recall looking at it anything about it.
Because it was too high up on the wall I mean I don't recall trying to
read the production off. Because it was up [too ] high [for me to see it]."
"947 ballots (939 valid , 3 void , and 5 challenged ) were cast , out of 1,007
eligible voters
"See recapitulated disposition of specific allegations of complaints, with
dates, Appendix A, infra
"In passing , it may be of interest to note that in connection with Black's
speeches , as part of his argument to employees that unions in general and
the charging party Union here in particular did not always permit local
employee members to be masters of their own destiny, Black projected
onto a screen a purported excerpt from a trial transcript in an earlier
Board case (General Transformer Company et al. 25-CA-2580, reported
as 173 NLRB No 61, which proceeding is officially noticed here)
However - whether through inadvertence , negligence , or otherwise does
not appear - a portion of the excerpt was misquoted , the version shown
being the transcript prior to correction by the Trial Examiner's orders of
EMERSON ELECTRIC COMPANY
evidenced here;` conceded that the Company continued to
be "strongly opposed to compulsory unionism"; expressed
his fear of a "potential loss of business" in case of any
inability to fill orders in the event of a strike, such as has
occurred elsewhere in such circumstances; reminded
employees that "under a union nothing is automatic - it
must be bargained for"; emphasized his belief that "in
spite of the distortions and untruths which have been
thrown at us we have conducted an honorable campaign,
based on the facts. You would not have us do less and I
feel proud of the honest and forthright manner in which
we have presented our position"; and concluded that
"Friday you will once again make an important decision
and most importantly for the future of you and your
families. I sincerely urge you to vote `no.' "
A review of the described remarks of Black and of
Johnson fails to disclose any which, in my opinion, is
offensive to the Act or its policies, bearing in mind the
Constitutional free speech guarantee and the provisions of
Section 8(c) of the Act. As has been pointed out
innumerable times, employers (like unions) are free - so
long as they do not threaten, coerce, or intimidate
employees, or give or promise them benefits, or indulge in
substantial material misrepresentation, to thwart or
traduce free exercise of their rights under the Act - to
attempt to sway employees to vote against union
representation in a Board election. Moreover, great
freedom is permitted in that regard, as has been
emphasized by the Board (Crown Paper Board Company,
Inc., 158 NLRB 440, 444):
The Board permits parties to its representation
proceedings wide latitude in the arguments and appeals
they may make and in the methods they may use for
communicating the same. The Board will not normally
set aside elections except in the event of coercion,
restraint , unlawful promises , substantial
misrepresentations , or other such interference."
There is, for example, an absence of any indication to
employees "that the Employer would not honor its
statutory obligation to meet and bargain with the Union
in good faith should the Union win the election." 78
I find that none of the Union's specific charges
comprising its first objection to the election has been
sustained, and that the indicated speeches were free of
unlawful content or taint, and accordingly recommend
January 17 and 31, 1968 , as noted in the Trial Examiner ' s decision of
February 21, 1968 (TXD-27-78, p. 2, fn . 5) Thus, the employees were
shown a transcript wherein the Union was portrayed as taking the position
that if an employer agreed to grant employees a 50 percent wage increase,
the Union would not agree to it ; instead of, as shown by the corrected
transcript , that the Union would not accede to the acceptance by
employees of wages 50 percent "lower than " prevailing area wage scales
However , this potentially egregious error has not been objected to by the
Union nor has it been complained of by General Counsel , nor so much as
mentioned throughout this proceeding . Under these circumstances and
considering the further fact that the Union apparently had ample time and
opportunity prior to the election to request correction of or itself to correct
this error , no significance is ascribed to it for purposes of the instant
proceeding
"I credit Plant Manager Johnson 's testimony that this particular
reference was based upon actual incidents of tire slashing and paint
spraying of a car in the company parking lot, as well as union card-signing
pressurizing . Employee Lucille Austin , a General Counsel witness,
conceded on redirect examination that she had "heard of some" violence
although she herself saw none
"See also, e g, Great Dane Trailers , Inc. 172 NLRB No 139.
"Howmet Corporation, 171 NLRB No 18.
99
that said objection, being without merit, should be
overruled."
Third Objection to Election8"
The Union's third objection is based upon allegedly
threatening letters written by the Employer to employees
during the month preceding the election. In these letters,
the Employer is said to have threatened "strikes, violence,
fines, and loss of jobs if the Union won the election."
Four such letters of Plant Manager Johnson, ranging in
date from March 18 to April 16, 1968, have been
presented for consideration in this connection. A review of
these letters indicates that they are in the category of
usual preelection campaign propaganda. I find them free
of threats or coercive thrust, the Union being similarly at
liberty to exhort employees as to the alleged advantages of
voting its way. Accordingly, this objection should be
overruled.
Fourth Objection to Election
The Union's fourth objection centers around the
Employer's no-solicitation rule and its operation, which
have been extensively discussed above in connection with
issues raised in the consolidated Complaint cases. There
being no additional showing on this subject in connection
with the Union's objections to election and no proof of
any unlawful conduct of the character described in the
fourth objection within the period here material (i.e.,
March 14-April 19, 1968), I so find. Accordingly, this
objection also should be overruled.
Fifth Objection to Election
The Union's fifth and final objection to the election is
concerned with certain preelection conduct of an employee
group identified as the "Emerson Loyal Employees Club"
("ELE"). It is charged that this group spoke to other
employees against the Union on company property and
time , and distributed antiunion literature as well as
sponsored local newspaper advertising and radio
announcements of an improper nature in the period before
the election, and that the Company failed to disavow the
foregoing.
Since substantial credible evidence fails to establish that
"ELE" employees, in contrast to other employees, were
with the Employer' s permission or to its knowledge
permitted to propagandize other employees to a
significant, if any, extent on company property and time
or at company expense, this particular specification of the
fifth objection should be overruled. Cf. Mason &
Hanger-Silas Mason Co., Inc. v. N.L.R.B., 405 F.2d
(C.A. 5).
The main thrust of the fifth objection involves handbills
and a mass of newspaper advertisements and radio
spot-announcements by ELE in its efforts to defeat the
Union in the election. There is no evidence, indication or
claim that ELE was in any manner encouraged,
"The Union 's first objection includes the specification that slides,
pictures , and clippings of strikes , violence, and job loss were projected to
employees during the speeches of Black This is not unlawful, there not
having been crudely excessive overemphasis thereon under all of the
circumstances , contrary, for example, to the situation in Wigwam Mills,
Inc 149 NLRB 1601, enfd 351 F 2d 591 (C A 7)
"The second objection was withdrawn.
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sponsored , organized , controlled , dominated , financed, or
supported by, or connected with, the Employer. The case
is thus unlike a situation where the antiunion propagandist
is linked , such as by agency (as defined by the Act), to the
Employer, as, for example, in Henry I. Siegel Co., Inc.,
and Mayor of Hohenwald, Tennessee, 172 NLRB No. 88,
with which cf., e.g., Monroe Auto Equipment Company,
159 NLRB 613, 617; Marshfield Steel Company, Inc., 140
NLRB 985, enfd. on other issues 324 F.2d 333 (C.A. 8);
and the recent illuminating discussion by Trial Examiner
Somers in Tennessee Handbags , Inc., 10-CA-7397 (Nov.
8, 1968 ). Absent such evidence or linkage , the most that
has been established is that the renewed 1968 Russellville
plant unionization effort of some employees met with
spirited opposition by other employees. Recognizing,
however , that preelection occurrences , even though
unlinked to the Employer , may be so poisonous to the
"laboratory" atmosphere desirable in Board elections
(General Shoe Corporation, 77 NLRB 124, 127) as to
preclude an election worthy of the name, to say nothing of
Governmental result certification imprimatur, I have
received into evidence" and have reviewed the material
disseminated by ELE to measure it against that standard,
within the total module of this proceeding . In my view, it
cannot be said that the ELE propaganda exceeds the
bounds or is beyond the pale , using what to me appears to
be a realistic yardstick. Even had they originated from
and had they been disseminated by the Employer, I would
continue of this view. Undoubtedly a spirited campaign
took place.`2 It is no objection to such a campaign that
the opposition to the Union was also spirited , perhaps
spirited enough to deprive the Union of expected victory.
It may be said that such a spirited campaign far from
constituting unlawful interference with the Board's
election processes , may produce a more informed
polarization of employee sentiment and therefore
constitute a more accurate gauge of employees' true
representation desires . Nor, in the absence of linkage to
the Employer, is the latter under obligation to disavow
such material or the views expressed therein, or
association therewith , under the circumstances shown and
upon the record here made. I therefore find the ELE
material in question ( 1) not to be ascribable to the
Employer and (2) not improper so as to warrant voiding
the election; and I further find (3) that the Employer was
under no obligation to disavow it or any association with
it. It is accordingly recommended that the fifth objection
to the election likewise be overruled.
Since, therefore , it has not been established by
substantial credible evidence that any violation of the Act
or preelection misconduct or impropriety such as to
require setting aside the election conducted under Board
auspices on April 19 , 1968, occurred during the period
between the filing of the petition for election (March 14,
1968) and said election , the Union 's objections to the
election should be overruled and the election results
certified.
Upon the foregoing findings and the entire record, I
state the following:
"Respondent ' s objections to admission of this material (G.C Exhs
4(a)-4(e) and 5(a)-5(f) for identification , upon which rulings were reserved
at the trial , are overruled
"Assistant Winding Room Foreman Adler estimated that "75 or 80
percent of the people that voted for the union were wearing buttons,"
based on "seeing them walking around in the shop with the buttons on "
(Since 450 voted for the Union , this suggests possibly around 350
employees were wearing Union buttons)
Conclusions of Law
1. Emerson Electric Company, Respondent herein, is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. International Union, Allied Industrial Workers of
America, AFL-CIO, Charging Party herein, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. Assertion of jurisdiction herein is proper.
4. It has been established by a fair preponderance of
the substantial credible evidence that Respondent has
engaged in each of the acts found in section III, hereof, as
there more particularly set forth and as recapitulated in
Appendix A hereto, in violation of Section 8(a)(1) of the
National Labor Relations Act as amended.
5. It has not been established by a fair preponderance
of the substantial credible evidence that Respondent has
violated Section 8(a)(1) of the Act in any of the respects
not found in section III, hereof, as there more particularly
set forth and as recapitulated in Appendix A hereto; and
in each of those respects the complaints herein should be
dismissed.
6. It has not been established by a fair preponderance
of the substantial credible evidence that Respondent
discharged or terminated the employment of James
Martin on or about September 8, 1967, or thereafter
failed or refused to reinstate or rehire him, in violation of
Section 8(a)(3) or (1) of the Act, as alleged in the
complaint, because of his sympathy for, membership in,
or activities on behalf of the Union, or in order to
discourage union membership, or for any other reason
violative of the Act; and the complaint should in that
respect be dismissed.
7. It has not been established by a fair preponderance
of the substantial credible evidence that Respondent
discharged or terminated the employment of Sally
Blackford on or about April 30, 1968, or thereafter failed
or refused to reinstate or rehire her, in violation of
Section 8 (a)(3) or (1) of the Act, as alleged in the
complaint, because of her sympathy for, membership in,
or activities on behalf of the Union, or in order to
discourage union membership, or for any other reason
violative of the Act; and the complaint should in that
respect be dismissed.
8. The unfair labor practices and each of them referred
to in Conclusion of Law numbered "4" affect commerce
within the meaning of Section 2(6) and (7) of the Act.
9. None of the Union's objections dated April 25, 1968,
and filed on April 26, 1968, to conduct said to have
affected the results of the election conducted under Board
auspices on April 19, 1968, has been established by a fair
preponderance of the substantial credible evidence; and
said objections and each of them should be overruled, and
the results of said election should be certified in
accordance with the official tally of ballots cast therein.
The Remedy
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be
required to cease and desist therefrom and take certain
affirmative action (consisting of the usual posting of a
notice to employees ) conventionally ordered in cases of
this nature , involving interference with, restraint, and
coercion of employees in the exercise of rights secured by
the Act.
EMERSON ELECTRIC COMPANY
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record, and
pursuant to Section 10(c) of the Act, I make the
following:
RECOMMENDED ORDER
It is hereby ordered, that:
1. Respondent Emerson Electric Company, its officers,
agents, successors , and assigns shall:
a. Cease and desist from:
(1) Interrogating any employee in violation of the Act,
concerning his or any other employee's union membership,
affiliation, activity, sympathy, or desire.
(2) Stating or otherwise conveying to any employee, in
violation of the Act, that his or any other employee's
union activities are under Respondent's surveillance or
that Respondent is spying thereon, at any place or time
where and when it is legally permissible for such employee
to engage therein.
(3) Threatening, stating, or otherwise indicating to any
employee that in the event he or any other employee joins,
affiliates with, or engages in activity on behalf of a union,
or that in the event a union is selected to engage in
collective bargaining on behalf of employees, or in the
event employees exercise any other right which they have
under the National Labor Relations Act as amended,
Respondent will close or move away its Russellville plant,
or that employees will be discharged or lose their jobs, or
that Respondent will in any other way retaliate, engage in
reprisal , or discriminate against employees.
(4) Interfering in any like manner with, or restraining
or coercing, any employee in the exercise of his right to
self-organization, to form, join, or assist any labor
organization; to bargain collectively through
representatives of his own choosing; to engage in
concerted activities for the purposes of collective
bargaining or other mutual aid or protection; or to refrain
from any or all such activities.
101
b. Take the following affirmative action necessary to
effectuate the policies of the Act:
(1) Post in its factory at Russellville, Kentucky, copies
of the attached notice marked "Appendix B".83 Copies of
said notice, on forms provided by the Board's Regional
Director for the Ninth Region, shall, after being duly
signed by Respondent's authorized representative, be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees 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.
(2) Notify said Regional Director, in writing, within 20
days from receipt of this Decision, what steps have been
taken to comply therewith."
2. Insofar as the complaints or either of them allege
violations of the Act not herein found, the complaints and
each of them, as amended, are hereby dismissed.
3. The Union objections, dated April 25, 1968, and filed
on April 26, 1968, in Case 9-RC-7658, to conduct
affecting the results of the election conducted therein by
or under auspices of the Board's Ninth Regional Director
on April 16, 1968, should be and are hereby overruled;
and the results of said election should be certified in
accordance with the official tally of ballots cast therein.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the Notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read - "Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX A
RECAPITULATION OF DISPOSITION OF SPECIFIC ALLEGATIONS OF COMPLAINTS AS AMENDED a
Complaint
No. Paragraph Substance Act Sec(s). Disposition
5(a)(i) Aug. 22, 1967: Plant Manager Johnson threatens 8(a)(1) Dismissed
(a)(ii)
assem bled emp oyees with discharge for union talk on
company time or union literature distribution on
company property , thereby unlawfully limiting union
solicitation.
Aug. 22. 1967: Plant Manager Johnson threatens (a)(1) ound
I 5(a)(iii)
assembled employees to move plant in case of
unionization;
Aug. 27, 1967: Plant Manager Johnson tells assembled 8(a)(1) Dismissed
(a)(iv)
emp l oyeeye at Respondent would not have to deal with
Union even though selected by employees as bargaining
representative.
Aug. 27, 1967: Plant Manager Johnson tells assembled (a)(1) ismissed
employees t ey would receive wage raise if refuse to
select union as bargaining representative.
a Dates are approximate
102
Complaint
No. Paragraph
1 5(a)(v)
1 5(b)(i)
1 5(b)(ii)
5(bXiii)
5(b)(iv)
5(b)(v)
5(c)(i)
,5(c)(ii)
5(c)(iii)
5(cXiv)
5(c)(v)
Substance Act Sec(s).
Nov. 16 , 1967: Plant Manager Johnson threatens 8(a)(1)
employees with discharge for union activity
Aug. 22, 1967: Supervisor McKenzie creates impression 8(a)(1)
of surveillance over employees' union activities
(Martin .
Aug. 22, 1967: Supervisor McKenzie threatens 8(ax 1)
employee arts discharge for union activities.
Aug. 22, 1967: Supervisor McKenzie creates impression 8(ax l )
o^^,,/survei ll ance over employee's union activities
(McGuire)
Aug. 23, 1967: Supervisor McKenzie creates impression
of survei llance over employee ' s union activities
(Martin).
L 4S. 23, 1967 Supervisor McKenzie unlawfully
restricts emp loyee talk and union solicitation on
Company premises (M art in).
Aug. end, 1967: Foreman Robertson threatens plant
remova l in case of unionization ( Harris).
Aug. end, 1967: Foreman Robertson creates impression,
o surveillance over employees' union activities and
discharge for same (Harris .
Sept. or Oct., 1967: Foreman Robertson threatens
d isch arge for union activities.
Set. or Oct., 1967: Foreman Robertson creates
impression o f survei llance over employees' union
activities.
Sept. or Oct., 1967: Foreman Robertson threatens
discharge for union activities
5(c)(vi)I Sept. or Oct., 1967: Foreman Robertson threatens
stockpi l ing o parts and discharge in case of
unionization.
5(c)(vii)
5(cXviii)(A)
5(cXviii)(B)
5(d)(i)
5(e)(i)
5(e)(ii)
DECISIONS ,OF NATIONAL LABOR RELATIONS BOARD
Mid-Oct., 1967: Foreman Robertson threatens plant
c losure' in case of unionization.
Jan., 1968: Foreman Robertson promises benefits to
employee for withdrawing union support and activities.
Jan. 1968. Foreman Robertson creates impression of
surveillance over employees ' union activities.
Oct. end, 1967: Plant Engineer Tatich states plant will
close in event of unionization.
Nov. 17, 1967: Supervisor Adler creates impression of
surveillance over employees ' union activities.
Mid-Nov., 1967: Supervisor Adler forbids employees'
talk and movements in order to unlawfully prevent
union solicitation on Company property.
8(a)(1)
8(a)(I )
8(a)(1)
8(a)(1)
8(ax1)
8(a)(1)
8(a)(1)
8(a)(1}
8(a)(1)
8(a)(1)
8(a)(1)
8(a)(1)
8(a)(l)
8(a)(l)
Disposition
Dismissed
Dismissed
Dismissed
Dismissed
Dismissed
Dismissed
Found
Found
Found
Found
Found
Found
Dismissed
Dismissed
Found
Found
Dismissed
Dismissed
Complaint
No. Paragraph
5(e)(iii)
5(f)
5(g)
5(h)
6
2 5(a)(i)
2 5(a)(ii)
2 5(a)(iii)
2 5(b)(i)
2 5(b)(ii)
2 5(c)(i)(A)
2 5(c)(i)(B)
2 5(c)(ii)
2 5(cxiii)
2 5(c)(iv)
2 5(d Xi)
2 5(d)(ii)
EMERSON ELECTRIC COMPANY 103
Substance Act Sec(s). Disposition
Nov. 7. 1967. Supervisor Adler creates impression of
surveillance over employees ' union activities.
8(a)(1) Dismissed
Aug. end , 1967: Personnel Manager Black creates
impression of surveillance over employees' union
activities.
Oct. 31 , 1967 : General Foreman Friedel engages in
surveeiiTance over employees ' union activities.
Earl y Sep t ., 1967: Foreman Gooch threatens discharge
f or union support or activity.
Se8,t. 1967: Respondent discharges employee James
Martin for Union affiliation , support and activity, and
so as to discourages Union membership.
Feb. 14, 1968 : Personnel Manager Black creates
impression of surveillance over employees' union
activities and unlawfully restricts union solicitation on
Company property.
Feb. 16 , 1968: Personnel Manager Black threatens
discharge for Union talk "on company time, thereby
unlawfully limiting solicitation . on Respondent's
property."
Apr. 16. 1968: Personnel Manager Black threatens
assembled employees with loss of substantial benefits in
case of unionization.
Jan. 26 , 1968: Asst . Personnel Manager Dudley enlists
new employees to report to him on union activities of
other employees.
Jan. 26, 1968 : Asst. Personnel Manager Dudley
threatens new employees with discharge if they engage
in any union activity.
Feb. 1 1968 : Foreman Boldin creates impression of of
survei ll ance over employees ' union activities.
Feb. 1, 1968: Foreman Boldin interrogates employee
concerning his union activities.
Feb. 10, 1968: Foreman Boldin interrogates employee
concerning his union activities.
Feb. 16 , 1968: Foreman Boldin interrogates employee
concerning his union activities.
Early Feb ., 1968: Foreman Boldin engages in
survei llance over employee 's union activities.
Feb. 6, 1968: Foreman Nuyt interrogates employee
concerning his union activities.
Feb. 6. 1968: Foreman Nuyt threatens discharge for
union activities.
8(a)(1)
8(a)(1)
8(a)(1)
8(a)(3)
and
8(a)(1)
8(a)(1)
8(a)(1)
8(a)(1)
8(a)(1)
8(a)(1)
8(a)(1)
8(a)(1)
8(a)(1)
8(a)(1)
8(a)(1)
8(a)(1)
8(a)(1)
Dismissed
Dismissed
Dismissed
Dismissed
Dismissed
Dismissed
Dismissed
Dismissed
Dismissed
Dismissed
Dismissed
Found
Found
Dismissed
Dismissed
Dismissed
104
Complaint
No. Paragraph
2 5(e)
2 5(f)(i)
2 5(f)(ii)
2 5(f)(iii)
2 6
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Substance
Mar. 11
,
1968 : Supervison Adler creates impression of
surveillance over employees ' union and related protected
activities
Apr. 17_1968: Foreman Gooch interrogates employee
concerning his union activities.
Apr. l7, 1968: Foreman Gooch threatens discharge for
union activities.
Apr. 17, 1968: Foreman Gooch solicits employee to
cease support of and activity on behalf of Union.
A r. 30, 1968: Respondent discharges employee Sally
Bl ackf ord f or Union affiliation , support and activity,
and so as to discourage Union membership
I
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, an
Agency of the United States Government , and in order to
effectuate the policies of the National Labor Relations
Act, as amended , we hereby notify our employees that:
After a trial at which all sides had the chance to give
evidence , it has been decided that we , Emerson Electric
Company , violated the National Labor Relations Act, and
we have been ordered to post this Notice.
The National Labor Relations Act gives you, as an
employee , these rights:
To engage in self-organization
To form, join , or help unions
To bargain collectively through a representative of
your own choosing
To act together with other employees to bargain
collectively or for other mutual aid or protection;
and
If you wish , not to do any of these things.
Accordingly , we give you these assurances:
WE WILL NOT do anything which interferes with any
of your rights listed above.WE WILL NOT question you in violation of the
National Labor Relations Act as to your (or any other
employee's) Union membership, affiliation , activities,
sympathies , or desires.
WE WILL NOT tell or indicate to you that your (or
any other employee ' s) Union activities are being spied
on or are under our observation at any place or time
where you have (or he has) the lawful right to engage in
Act Sec(s).
8(a)(1)
8(a)(1)
8(a)(1)
8(a)(1)
Disposition
Dismissed
Dismissed
Dismissed
Dismissed
Dismissed
those activities, including your (or his) nonworking
time.
WE WILL NOT directly or indirectly threaten to close
our Russellville plant or to move away from
Russellville , or to discharge you or to end or reduce
jobs, or in any other way to retaliate or take any
reprisal or discriminate against you, in the event you
support or join or are active in or on behalf of
International Union, Allied Industrial Workers of
America, AFL-CIO, or any other labor organization
which you want to bargain with us for you collectively.
WE WILL NOT in any similar way interfere with,
restrain , or coerce you in the exercise of any of your
rights under the National Labor Relations Act.
We assure all of you that you are free to join or not to
join International Union, Allied Industrial Workers of
America, AFL-CIO, or any other union , as you see fit in
your own judgment, without any interference from us in
any way, shape, or form.
Dated By
EMERSON ELECTRIC
COMPANY
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board's Regional Office, Room 2407
Federal Office Building , 550 Main Street, Cincinnati,
Ohio 45202, Telephone 513-684-3663.