Emerson Electric Co.

National Labor Relations Board - Board Decisions

Mar 23, 1971

189 N.L.R.B. 205 (N.L.R.B. 1971)

U. S. ELECTRICAL MOTORS
U. S. Electrical Motors, Division of Emerson Electric
Company and International Union of Electrical,
Radio and Machine Workers , AFL-CIO-CLC.
Case 15-CA-3653
March 23, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On November 25, 1970, Trial Examiner Fannie M.
Boyls issued her Decision in the above-entitled
proceeding, finding that Respondent had engaged in
certain unfair labor practices within the meaning 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. The Trial Exam-
iner further found that Respondent had not engaged
in certain other unfair labor practices alleged in the
complaint and recommended that such allegations be
dismissed. Thereafter, Respondent and the General
Counsel filed exceptions to the Trial Examiner's
Decision, and the latter also filed a supporting brief.
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 this case 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 brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified herein.i
ORDER2
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner, as modified herein,
and hereby orders that Respondent, U.S. Electrical
Motors, Division of Emerson Electric Company,
Philadelphia, Mississippi, its officers, agents , succes-
sors, and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order, as so modi-
fied. Substitute the attached notice for the Trial
Examiner's notice.
I Respondent excepts to the Trial Examiner 's statement that -it would
appear appropriate" for employee Willie Warren to file a new unfair labor
practice charge if Respondent "fails, or has failed" to promote Warren to
his old or equivalent job in the event of an increase in the labor force after
October 1, 1969 We disavow this statement insofar as it may imply an
205
advance judgment on a situation not before us in the instant case
However, as Respondent concedes , a party is always free to file a charge
which is subject to the Board 's procedures in cases involving allegations of
unfair labor practices
2 The General Counsel correctly contends that where , as here,
employees have been unlawfully interfered with an discriminated against
because of activities in a particular labor organization the latter should be
named in the notice . We shall modify the notice accordingly
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer to Herbert W. Cumberland full
reinstatement to his old job and will give him
whatever backpay he has lost because of his
discharge. If he is presently in the Armed Forces of
the United States, we will notify him of his right to
reinstatement upon application after discharge
from the Armed Forces.
WE WILL NOT time our announcement or grant
of a wage increase or other benefits in order to
interfere with our employees' free choice of a
bargaining representative.
WE WILL NOT try to frighten any employee into
giving up his union membership or activities:
By saying anything to any employee designed
to create the impression that we will engage
in surveillance of his union activities;
By threatening death or other punishment of
any employee for joining or helping the
Union;
By suggesting to any employee that his Labor
Grade may have been reduced because of his
union activities; or
By telling any employee that he will have to
prove himself by refraining from union
activities before he can be promoted to a Set
Up Man classification.
WE WILL NOT try to induce any employee to
refrain from voting in a representation election by
assuring him that arrangements can be made for
his wages to be paid him anyway if he stays away
from the plant when the election is being conduct-
ed there.
WE WILL NOT retaliate against any employee for
engaging in union activities by denying him time
off from work which we would otherwise grant
him, or by discharging him.
WE WILL NOT in any other way interfere with
our employees' rights, guaranteed under the law,
to organize, to form, join or assist a union, to
bargain through the union they may choose, to act
189 NLRB No. 26
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
together for their mutual aid or protection, or to
refuse to do any of these things.
All of our employees are free to become or remain,
or to refrain from becoming or remaining , members
of the International Union of Electrical , Radio and
Machine Workers , AFL-CIO-CIC, or any other
labor organization.
U.S. ELECTRICAL
MOTORS, DIVISION OF
EMERSON ELECTRIC
COMPANY
(EMPLOYER)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, T6024 Federal Building (Loyola), 701 Loyola
Avenue, New Orleans, Louisiana 70113, Telephone
504-527-6361.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FANNIE M. BOYLS, Trial Examiner: This case, initiated by
a charge filed on September 24, 1969, and a complaint
issued on June 29, 1970, was tried before me in
Philadelphia, Mississippi, on August 20 and 21, 1970. The
complaint, as amended at the hearing, alleges that
Respondent violated Section 8(a)(1) and (3) of the Act
during a union organizing campaign in 1969. Respondent's
answer denies that it engaged in the unfair labor practices
alleged. Subsequent to the hearing, on or about October 1,
1970, the parties filed helpful briefs.I
Upon the entire record in this case, including my
observation of the demeanor of the witnesses, and after due
consideration of the briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Missouri corporation, owns and operates,
among others, a plant in Philadelphia, Mississippi, where
the unfair labor practices here involved are alleged to have
occurred. It is engaged in the manufacture of electrical
motors, systems, and drivers. In the course and conduct of
its business during the 12-month period preceding the
issuance of the complaint, Respondent sold and shipped
products valued in excess of $50,000 from its Philadelphia,
Mississippi, plant directly to points located outside the
state. On the basis of these admitted facts, it is found that
Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
H. THE LABOR ORGANIZATION INVOLVED
International Union of Electrical , Radio and Machine
Workers, AFL-CIO-CLC, herein called the Union, is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES ALLEGED
A. Setting and Issues
The Union, after previously having sought to organize
Respondent's employees and having lost a representation
election in July 1967, again sought to organize Respon-
dent's employees in 1969. It held its first organizational
meeting on August 10, 1969, at the Fair Grounds near
Philadelphia and its second meeting on August 17 at the
home of employee Howell on Golf Course Road. It filed a
representation petition on September 2. A hearing on this
petition was held on September 23 and at an election held
on October 16, the Union again failed to receive a majority
of the votes cast.
Respondent learned of the Union's 1969 campaign and of
the union meetings soon after they were held. It is alleged
that during the preelection period and in order to defeat the
Union at the polls, Respondent announced and put into
effect increased wages and other benefits to its employees,
made threatening and coercive statements to some of its
employees, discriminatonly discharged employee Herbert
Cumberland, and discriminatorily transferred and demoted
another employee, Willie Warren, in violation of Section
8(a)(1) and (3) of the Act. In deciding these questions, some
credibility issues as well as Respondent's motivation must
be determined.
B. The Announcement and Grant of Wage
Increases and Other Benefits
On August 29 Plant Manager Hardwick called group
meetings of employees on each of the three shifts at which
he announced the granting of a 6-percent general wage
increase , to be effective as of September 28. These
increases ranged from 10 cents an hour for those having a
base rate of between $1.72 and $1.74 an hour up to 16
cents an hour for those whose base rate were $2.59 and
above . At the same time Hardwick announced an increase
in group insurance benefits , an increase in vacation time
for employees having as much as 2 years'service, time-and-
one-half pay for work performed on a holiday, and an
increased-shift premium for second shift employees and a
bonus for third-shift employees. Hardwick also told
employees that Vice President Wells had just approved a
detailed industrial engineering study of Respondent's
I A motion by Respondent , unopposed , to correct the transcript of the
record in certain respects is hereby granted
U. S. ELECTRICAL MOTORS
incentive system to insure that many of the incentive
problems would be elimmated.2
On September 5 Respondent sent to each employee a
letter summarizing the increase in wages and other benefits
which had been announced orally on August 29.
On October 13, 3 days before the representation election,
Respondent mailed to each of its employees a letter to
which it attached a summary of what is labeled "Our
Record Of Performance Since 1963 - Without A Union,"
listing the wage increases and other benefits granted each
year from 1963 through September 28, 1969.3 The body of
the letter reads as follows:
As we reach the final stage of this campaign, there is
one thing that must be stressed before you cast your
vote on October 16th. That is, the union has offered you
only promises. Our company stands on its record of
performance. By working together, we have been able to
establish a record in which we can all take pride. You
didn't need to pay dues or risk a strike in order to share
in our progress together.
We are trying to make our plant a better place to work.
All of our efforts have produced a growing and thriving
plant that provides security for ourselves now and in the
future.
On the other hand, the union has relied on fear, over
stated promises , half-truths, and slurs on your fellow
workers. They have already given us a good taste of the
discontent , dissension , unpleasantness , and bitterness
that is their stock in trade.
We don't intend to have this plant fail. That is why no
union can make us do anything that is economically
unsound for this plant. I am sure that you would not want
it any other way.
I certainly agree that everyone should continue to make
personal progress in wages and benefits. This can best
be done without a union. Friction, distrust, strikes, and
violence accompany a union too many times for us to
think otherwise.
After you have carefully examined all of the facts, I am
positive that you will want to continue with the certainty
of proved performance rather than the uncertainty that
the IUE offers.
Attached is our record of performance. No union had
anything to do with this record.
Carefully weigh the exaggerated promises against the
known facts. Your decision and your future is in your
hands.
Be sure to "VOTE NO" on Thursday.
Respondent contends that the wage increases and other
benefits first announced to its employees on August 29 and
put into effect on September 28 were in accordance with its
established policy of reviewing and granting wage and
other increases in benefits annually and were not prompted
2 A letter from Vice President Wells to Hardwick, dated August 25,
indicates that plans were in progress to have an improved incentive system
installed during the second quarter of the fiscal year 1970, which would be
after the first of the calendar year 1970
3 Several days before sending this letter to the employees, Personnel
Manager Jerry Palmer, at departmental meetings of the employees, told the
employees substantially what was embodied in the letter
4 Personnel Manager Palmer testified that during the last 3 years,
207
by the Union's organizational drive which commenced on
August 10.
The General Counsel, while conceding that Respondent
since 1963 had been granting some wage increases and
other employee benefits to its employees at some time or
times during each year, nevertheless contends that in view
of the timing of the grant of the benefits in 1969, the
amounts involved and the manner in which they were
granted, Respondent's action was aimed at interfering with
the employees' choice of a bargaining representative and
was therefore in violation of Section 8(a)(1) of the Act.
Let us first examine the pattern and timing of wage
increases and other benefits in the years prior to 1969. The
record shows that from 1963 through the year 1966, general
wage increases were granted during the early part of each
year, at least by May 31 - except that in 1963 a second 3-
cent general wage increase was granted in July. Other types
of benefits during those years were granted at various times
during the year. On December 11, 1966, a 4-percent
general wage increase was announced to be effective as of
January 1, 1967; other benefits were announced and
became effective in February and April 1967; and a second
general wage increase of 4.6 percent was announced in
Septermber, to become effective October 1. On October 16,
1968, a 5-percent general wage increase as well as several
other benefits were announced, to become effective as of
October 21. Thus, it does not appear that any clear pattern
had been established prior to 1969 with respect to the
timing of general increases or other benefits given the
employees.4
The General Counsel contends that the package of wage
increases and other benefits announced on August 29 was
by far the largest benefit package ever announced or
granted at the Philadelphia plant. Although it was
unquestionably the largest benefit package offered at one
time during the 7 years for which data was supplied, it is
not clear from the record that is is the largest during any
one year. For example, it might be argued that during the
year 1967 the two general wage increases of 4 percent in
January and 4.6 percent in October, plus three other
benefits granted, were greater than the one 6-percent
increase, plus eight other benefits, granted in September
1969.
An analysis of the data submitted by Respondent
regarding its performance since 1963 and stipulations
entered into early in the hearing further show, as the
General Counsel points out in his beef, that in no year for
which data is available were wage increases announced as
far in advance of their effective date as in 1969. In most
instances the increases were announced only 4 or 5 days
before their effective date as compared with a 30-day
interval in 1969. In one instance, in 1963, the general
increase was announced 2 days after the increases had
already been put into effect. In only one instance prior to
1969 was there any substantial time intervening between
pursuant to policies established by new divisional executives, general
increases in the Philadelphia plant have been tied more closely than in
prior years to the end of Respondent's fiscal year on September 30
However, in only one of those years, 1%7 (when two general wage
increases were granted), was any such increase announced toward the end
of the fiscal year In 1968, as already noted, the increases were both
announced and made effective after the beginning of the new fiscal year.
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the announcement and effective date of the increase. That
was in 1967 while a union organizing campaign was in
progress, when there was a 20-day interval between the
announcement and effective date of the wage increase.5 For
the most part a similar pattern was followed with respect to
the announcements and effective dates of other benefits
granted during these years.
Let us turn now to the other evidence relating to the
circumstances under which the 1969 increases and other
benefits were granted. According to Personnel Manager
Palmer, Respondent takes into consideration, among other
things, - and did in 1969 - a survey made annually by
the Northeastern Missisippi Industrial Association, of
wages paid in the area which Respondent considers
competitive with its own business in Philadelphia, Missis-
sippi. The results of this survey in 1969 were made
available to Respondent in late June or early July. It was at
about that time that Respondent started reevaluating its
wage structure.
On July 2, 1969, John C. Rohrbaugh, industrial relations
vice president of Emerson Electric Company, from his
headquarters in St . Louis, Missouri, sent to all personnel
managers , including Palmer at Philadelphia, a memoran-
dum on the subject of wage and salary data in which he
advised them of a "plan to discuss starting rates and wage
levels , in general, at the Corporate Planning Conference."6
In this memorandum , he requested up-to-date information
regarding (1) current wages and salary schedules; (2) hiring
and starting rates; (3) job classification listings; (4)
amounts of increase for each. of past 4 years; (5) amount
and dates of scheduled increases ; and (6) any problems
connected with starting rate levels or wage salary levels of
any particular classification.
On July 16, 1969, H.F. Dickinson, industrial relations
vice president of the U.S. Motors Division of Emerson
Electric Company, sent a memorandum from his headquar-
ters in Milford, Connecticut, to all personnel managers,
including Palmer, stating that he had provided Rohrbaugh
with the information requested in items I through 5 of the
July 2 memorandum and asking the personnel managers,
including Palmer, to respond only to item 6.7 Palmer did
respond on July 30. He stated among other things:
I do not think that at the present time we have any
problem with our starting rate. However, I do feel the
wage level for the people in the Tool and Die making
category and top electricians are low.
He recommended that the wage rate of these highly skilled
employees (a top of $2.59 an hour, as compared with the
area of $2.80 and the area top of over $ 3.25 an hour as shown
by the 1969 wage survey) be increased immediately by
changing their labor grade from 13 to 14. He added that
"when granting the next General Increase," Respondent
5 The record shows the following time lapsed between the
announcement of the general wage increase and its effective date
1963 - First increase announced 2 days after effective date
- Second increase announced 6 days before effective date
1964 - Announced 4 days before effective date.
1965 - No data
1966 - Announced 4 days before effective date
1967 - First increase announced 20 days before effective date
- Second increase - no data
1968 - Announced 5 days before effective date
1969 - Announced 30 days before effective date
should "take a real strong look at making further
adjustments for people in high skilled classifications."
All of the above-described correspondence occurred
prior to the Union's first organizational meeting on August
10. Respondent's plant manger, Ben Hardwick, knew
about the meeting before leaving for Hot Springs,
Arkansas, to attend a conference of Emerson Electric Plant
Managers on August 17, 18, and 19. At meetings with
Emerson Electric officials Fiolli, Wells, and Gorgas during
the conference, Hardwick told them of some of the
problems the Philadelphia plant was having in recruiting
and keeping skilled employees due to competition from the
two competing plants in Louisville, Mississippi, near
Philadelphia, and mentioned that the problem would be
worse if Lockheed opened a plant in Meridian, as had been
planned. Hardwick was told by the officials that when he
returned to Philadelphia, he should formulate specific
proposals for improvements for that plant. Upon returning
about August 20, Hardwick turned over to Personnel
Manager Palmer the responsibility for formulating these
proposals.
One of the first things Hardwick did upon returning
from the plant managers conference was to prepare a letter
to Respondent's employees. This letter dated August 21,
1969, started off with: "Well, the IUE is back again." It
reminded them of the Union's unsuccessful campaign in
1966 to 1967 and stated that the Union was back after their
money again in the form of union dues . It warned the
employees of some of the possible consequences of signing
a union card and informed them that their " management
does not feel that the employees in the Philadelphia plant need
or want any outside representation."
Personnel Manager Palmer, upon receiving his instruc-
tions from Hardwick, immediatley set about to prepare a
comprehensive set of proposals for wage increases and
other benefits. These proposals, embodied in a 4-page
memorandum, were mailed on August 22, 1969, to
Divisional Vice President Dickinson.8 The memorandum
contained eight detailed recommendations for a general
wage increase and other benefits which Palmer stated
should be implemented as soon as possible but not later
than September 15. With respect to a new and improved
incentive program, Palmer reported that he did not believe
that such program could be effected by September 15 but
he recommended that an announcement be made to the
employees that such a program was being worked on and
would be installed by January 1, 1970. The reasons for
such urgency in announcing the increased wages and other
benefits were stated in the memorandum to be "the
proposed program to increase the size of the Southern
Plant (the Philadelphia plant) from its present employee
level and to maintain our competitive position with other
6 The word "Corporate" refers to Emerson Electric Company as
distinguished from one of its divisions , such as the U.S. Electrical Motors
Division
I The record does not show what information Dickinson had given
Rohrbaugh with respect to the amount and dates of the scheduled
increases
8 As Palmer explained, the practice is for local management to make
recommendations to the Divisional executives who, in turn, get approval
from the Corporate executives, and this approval is then passed back to
local management through the Divisional executives
U. S. ELECTRICAL MOTORS
industries such as Taylor Machine and Georgia Pacific in
Louisville, and other industries in our type of work."9
Palmer concluded his memorandum with the statement:
"There are changes for the non-exempt and exempt
employees (office employees and management representa-
tives not covered by the Wage Hour Laws) but these do
not have to be announced with the same degree of urgency
as the above. A proposed program will be forthcoming for
our non-exempt and exempt employees."
Palmer's recommendations, mailed on Friday, August 22,
were first considered by divisional executives in Milford,
Connecticut, then by corporate executives in St. Louis,
Missouri. A memorandum dated August 25, 1969, from
Divisional Operations Vice President E.B. Wells, Milford,
Connecticut, to Hardwick in Philadelphia, mentions a plan
to improve the incentive system which Wells proposed to
have installed during the second quarter of the fiscal year
1970 - which would be during the first quarter of calendar
year 1970. No mention was made of Palmer's recommenda-
tion in the August 22 memorandum regarding the incentive
system and that recommendation had apparently not been
received when Wells wrote his August 25 memorandum. By
another memorandum dated August 27, 1969, a copy of
which was sent to Plant Manager Hardwick in Philadel-
phia, Wells informed Divisional Industrial Relations Vice
President Dickinson of his approval of wage increases and
some of the other proposed improvements for the
Philadelphia plant, to be implemented on October 1. He
proposed that Hardwick announce the improvements to all
the employees. Personnel Manager Palmer, in telephone
conversations with Dickinson, was informed of the
approval of these proposed benefits before Hardwick, on
August 29, announced them to the employees to be
effective on September 28.
A careful study of all the evidence convinces me that
Respondent did, as the General Counsel alleges , alter and
accelerate its course of action with regard to the announce-
ment and conferral of general wage increases and other
benefits in order to make maximum use of such improved
benefits to defeat the Union in the election. A number of
factors impel me toward this conclusion. Although by late
June or early July Respondent had in its possession the
results of the 1969 Area Wage Survey and knew how it
ranked with its competitors in the area, it showed no
concern about any immediate improvement in the wage
structure or other employee benefits. Even as late as July
30, less than 2 weeks before the commencement of the
Union's organizational campaign, Palmer wrote Corporate
Vice President Rohrbaugh, in response to a requested
report on any problems connected with starting rate levels
or wage or salary levels of any problem with starting rates.
He made a recommendation as to immediate action only
with respect to Respondent's highly skilled tool-and-die
making employees and electricans who, in his view, should
be promoted from labor grade 13 to labor grade 14 and as
to whom he thought further special consideration should
be given "when granting the next General Increase."
9 Hardwick did not mention in his testimony that any plans had been
made to expand the Philadelphia plant and did not cite this factor, as did
Palmer, as a reason for urgency in the announcement and granting of
substantial wage increases and other benefits Indeed, even Palmer in
initially testifying about the reasons for urgent action did not mention the
209
This manifestation of lack of concern for any prompt
action in granting general wage increases and other benefits
continued until after the Union started its organizational
campaign and Plant Manager Hardwick returned from the
plant manager's conference about August 20. Then almost
simultaneously with the preparation by Hardwick of an
antiunion letter sent to the employees on August 21, Palmer
was preparing very comprehensive and detailed recommen-
dations for the largest single package of general wage
increases and other benefits ever granted by Respondent at
one time during the 7-year period for which data was
available. These recommendations were mailed to the
divisional offices in Milford, Connecticut, on Friday,
August 22, and within a week the recommended 6-percent
general wage increase and most of the other recommenda-
tions had been considered and approved by the divisional
executives, had been passed on to and approved by the
corporate executives in St. Louis, Missouri, had been
passed back to the Milford office, then on to the
Philadelphia plant in time for Plant Manager Hardwick to
assemble the employees and announce the wage increases
and other benefits on Friday, August 29. Of course, all of
this could not have been done by correspondence. Part of
it, as Palmer explained, was done by telephone.
The principal reason assigned by Respondent in its brief
for this precipitate action was the sense of urgency arising
from a management decision conveyed to Hardwick at the
manager's conference in Arkansas, to increase the number
of employees at the Philadelphia plant by about 350
employees during the 18-month period following October
1. But Hardwick himself, in testifying about the sense of
urgency, did not mention the planned expansion and even
Palmer did not mention it when initially explaining the
reasons for urgent action and added that factor only after
Respondent's counsel at the hearing questioned him about
a reference made in his August 22 memorandum to the
planned increase in the number of employees at the
Philadelphia plant. I am convinced that it was the union
campaign and not any plans for long range future plant
expansion which created the sense of urgency in announc-
ing the general increase and other benefits. I am also
satisfied that Palmer, in stating in his August 22 memoran-
dum that changes for the nonexempt and exempt employ-
ees "do not have to be announced with the same degress of
urgency" as those for the other employees, was referring to
the fact that office and management employees - which
Respondent refers to as its "non-exempt and exempt
employees" - are not normally included in the same
bargaining unit with the employees which the Union was
then seeking to organize.
Respondent has not sought to explain why in 1969 it
announced the package of wage increase and other benefits
30 days in advance of the effective date of such benefits,
contrary to its normal practice of announcing benefits only
4 or 5 days prior to their effective date. It is a fair inference
proposed increase in the number of employees. Palmer testified , however,
that he received information from Hardwick, upon the latter's return from
Hot Springs , about plans to increase the number of employees at the
Philadelphia plant from 650 to about 1000 over an 18-month period.
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and I find that the announcement was timed in order to
obtain the maximum advantage in its campaign against the
Union. And it did, as already shown, seek to capitalize
upon its grant of the benefits by asserting in a speech and in
a letter to its employees only 3 days before the election that
only Respondent was responsible for the grant of these
benefits and that the Union had nothing to do with them.
It is accordingly found that Respondent by tuning of the
announcements and of the grant of wage increases and
other benefits in 1969 and the manner in which such
announcements and grant were used in the union
campaign, interfered with, restrained, and coerced its
employees in the exercise of their right freely to choose a
bargaining representative, in violation of Section 8(a)(1) of
the Act. N.L.R.B. v. Exchange Parts Co., 375 U.S. 405;
Great Atlantic and Pacific Tea Co., 162 NLRB 1182, 1184;
J. W. Mortell Co., 168 NLRB 435; Firestone Synthetic
Fibers, 185 NLRB No. 118.
C. Other Acts of Interference, Restraint, and
Coercion
1. Conduct attributed to General Foreman Burt
Tracy Cumberland (a son of Herbert Cumberland whose
alleged discriminatory discharge is treated infra) attended
the August 17 union meeting, signed a union card, and
distributed cards to other employees before and after work
and also during the lunch period at the plant door and in
the plant parking lot. He testified that on an occasion in
late August or the first part of September, as he was
working in the parking area, General Foreman Burt
approached and asked him, "Tracy, how good is your
memory?" Cumberland replied, "Good. Why?" Burt then
asked, "Do you remember the day you were in my office
with big tears in your eyes?" When Cumberland replied
that he did, Burt walked away, then turned and looked at
Cumberland while the latter worked. The incident to which
Foreman Burt was referring occurred about 2 years prior
thereto when, according Cumberland, an employee, Davis,
was complaining about her paycheck and Cumberland, in
the hearing of his foreman , Thrash, suggested that she
work just as a hobby, as he was doing, because he could
not make a living at his work. Foreman Thrash remarked
that the job Cumberland had was the best he could get.
Cumberland challenged this statement and said he had
been making more money before he started working for
Respondent . A few minutes later Cumberland was sum-
moned to General Foreman Burt's office . The latter told
him, "I have a good mind to fire you but you can quit if
you want to." He added, "All I have out of you is trouble."
During the conversation Burt also told Cumberland that a
woman had complainted about Cumberland using vulgar
language . Cumberland told Burt that he was not going to
quit but that he could get a job working for his father-in-
law. He handed Burt his paycheck and asked Burt to pay
his bills with it. Burt laughed and said he did not believe
that he could do that. At this point Cumberland had tears
in his eyes . There was then some discussion of a raise in
pay for Cumberland and Burt promised him a raise if he
did a good job.
According to Cumberland, on the day after Burt had
reminded him of the occasion 2 years previously when
Cumberland had tears in his eyes, Burt came to
Cumberland's work station and asked him if he could go
on the third shift. Cumberland replied that he would not go
unless a refusal to go meant that he would be discharged.
Burt then said that he would keep Cumberland on the first
shift so that he could watch Cumberland. As Burt started
to leave, Cumberland called him back and said, "If you got
anything on your chest , now is the time to get it off." He
told Burt that he was working for the Union and believed
in it. Burt replied, "You are not going to do nothing to hurt
a bunch of people. We don't need people like you." Burt
started to leave, then turned around, pointed a finger at
Cumberland and said, "I'll have my day" and "That ain't
no threat, either."
General Foreman Burt's account of the two conversa-
tions with Cumberland in about September 1969 differed
substantially from Cumberland's version. Burt testified
that prior to the first occasion, which was in early
September, he had heard through Cumberland 's foreman
that Cumberland was complaining a lot about being
moved from job to job; that as he was passing Cumberland
at his work table in the assembly department, Cumberland
stopped him and started complaining about having to do
different jobs or about having been reprimanded by his
foreman for language he used before women employees -
Burt could not recall which - and that Burt responded by
asking him if he remembered the day when Cumberland
had been in his office with tears in his eyes and said he
would be happy to work at just anything because he had a
family to feed. Burt's version of the prior occasion when
Cumberland had tears in his eyes was as follows: "He was
working with two females , and I believe there was a male
in one area, and the foreman of the department had to get
on to him about the language he used around the females.
And that's when he come up to my office, he was real upset
about that."
Burt's account of the second converstaion was that
Cumberland again stopped Burt as the latter came down
the aisle and stated that he, Cumberland, was upset over
being moved from one job to another and that "once we get
a union in here, you won't be able to do this anymore." Burt
replied, "Well, Tracy, go ahead and have your fun now, and
I'll have my fun later." This, according to Burt, was the
extent of his conversation with Cumberland. Burt specifi-
cally denied pointing a finger at Cumberland, asking him to
work on the third shift, or stating that he would keep him
on the first shift where he could keep an eye on
Cumberland.
Cumberland testified in convincing detail as to the
conversation between himself and Burt and, on the whole,
I believe his recollection of the events is more reliable than
that of Burt. I am not convinced, however, that Burt had in
mind Cumberland's recent union activities rather than
Cumberland's complaints about being moved from job to
job when he asked Cumberland if he remembered the day
when he had tears in his eyes . I do not base any unfair
labor practice finding upon this episode.
The second incident, however, requires a different
conclusion. Accepting, as I do , Cumberland's version as
substantially correct, I must conclude that Burt 's state-
ments had a threatening connotation . It may be , as Burt
testified, that Cumberland made a remark to the effect that
U. S. ELECTRICAL MOTORS
Respondent would not be able to move him from job to job
after the employees got a union in the plant, but this did not
warrant Burt's statement that he would keep Cumberland
on the first shift so he could watch him. Moreover, his
statement to Cumberland, following the latter's confession
that he was working for the Union, "You're not going to do
nothing to hurt a bunch of people" and "We don't need
people like you," followed by "I'll have my day" and "That
ain't no threat, either," would reasonably be interpreted by
Cumberland as a threat of job or other reprisal after the
union representation issue was settled.
It is accordingly found that Burt, by the statements above
described, created the impression that he would keep
Cumberland's union activities under surveillance and
impliedly threatened Cumberland with reprisal for engag-
ing in union activities, thereby violating Section 8(a)(1) of
the Act.
2. Conduct attributed to Foreman Tucker
Former employee Jeff Steele, the only Negro who
testified at the hearing herein, attended the August 17
union meeting, signed a union card, and distributed a few
cards to the other employees. He was one of eight
employees who, at the union organizer's request, volun-
teered to and did attend the representation hearing held at
the Neshoba County Courthouse on September 23, 1969,
for the purpose of assisting the organizer on questions
regarding eligibility of employees to vote and other matters
which might arise at the hearing. On the day following that
hearing, Respondent placed on its bulletin board at the
plant two notices or papers, each dated September 24,
1969, and posted side-by-side. The first read as follows:
RUMOR
IN ALL MATTERS PERTAINING TO THE UNION YOU HAVE AN
OPPORTUNITY TO VOICE YOUR OPINION.
The second page read:
Fact
AT THE NLRB HEARING ON TUESDAY, SEPTEMBER 23,
THERE WERE EIGHT EMPLOYEES PRESENT. DID YOU HAVE
AN OPPORTUNITY TO VOICE YOUR OPINION IN SELECTING
THESE PEOPLE? DID YOU VOICE YOUR OPINION IN
SELECTING TRACY CUMBERLAND AS THE SPOKESMAN FOR
THE GROUP? DID YOU VOICE YOUR OPINION IN
SELECTING THE OTHER MEMBERS OF THIS GROUP?
SO THAT YOU ARE FULLY INFORMED, THEY WERE,
CARLOUS B. DENTON, LAMAR PARKER, TRACY AGENT,
CLYDE PILGRIM, WILLIE WARREN, PAUL RYALS, AND
JEFF STEELE.
WOULD YOU BE ALLOWED TO VOICE YOUR OPINION ON
ANY OTHER UNION MATTERS?
In this manner everyone at the plant was apprised of the
fact that Steele and the other seven employees had attended
the representation heanng to assist the Union.
211
According to Steele, not long after he attended the
representation hearing, probably during the first week in
October, Foreman Bobby Tucker asked him whether he
was "for the Union or for the plant" and Steele replied that
he did not want to "expose" himself. Tucker then advised
Steel to go to his foreman, Ken Cumberland, and explain
what side Steele was on so that Cumberland would "look
out" for Steel on the job.
Foreman Tucker's version of the incident is that on or
about October 1, he sought out Steele on the west docks of
the plant to tell him that he could not pay for some peas
which Steele's daughter had delivered to his house. On that
occasion, Steele asked Tucker if he had seen his, Steele's,
name on the bulletin board. When Tucker replied that he
had, Steele stated that he wished the Company had not put
his name up there. Tucker replied, "Well, if you hadn't
wanted it up there, you shouldn't have attended the
meeting." Steele answered, "I know that now." Tucker
denied asking Steele whether he was for the Union or the
plant or suggesting that he tell his foreman where he stood
with respect to the Union.
Tucker impressed me as a frank and honest witness and I
credit his version of the conversation with Steele. Although
I believe that Steele also was an honest witness, and sought
to the best of his ability to tell the truth as he remembered
it, I am convinced that there was confusion in his mind
about his conversation with Tucker and a conversation
with other persons - perhaps with a setup man, Crocker,
about which he was not permitted to testify - or with
Foreman L. D. McDonald, which will be described
hereinafter. I accordingly base no unfair labor practice
finding upon Tucker's conversation with Steele.
3. Conduct attributed to Foreman McDonald
Later in the evening of the same day Steele had the
conversation already related with Foreman Tucker,
Foreman McDonald came up to his work station. The
following conversation, according to Steele, ensued:
Q. And what did Mr. McDonald say to you?
A. Well, he walked out and he said, "Jeff, you're
going to get killed."
And I said, "Why?"
And he said, "I heard a fellow say he was going to kill
you."
And I said, "Who was he?"
And he said, "I'm not going to tell you. You're going
to get killed." He said, "What church do you belong
to?"
And I told him Mount Zion Methodist Church.
And he says, "Is that where you want to be buried
at?"
And I said, "Oh, is it that way?"
And he said, "Yeah. Yeah."
And I said, "Well, if he kills me he'll have my kids to
take care of."
And he said, "Well, don't worry about the kids. The
government'll take care of the kids."
Q. And what did you say about that?
A. And I said, "Well, just go ahead and bury me in
my front yard."
Q. Do you recall anything else being said after that?
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Yes. He told me I should go to Mr. Ken and
explain myself because if I didn't, I'd be at the meeting
and everyone would know just how I was going to place
my vote.
Q. To be at what meeting?
A. At the election.
Q. And what did you say about that?
A. I said, "Oh, no. Nobody knows what's in my
heart." And he said, "Yeah. You go to Mr. Ken and
explain yourself to him." He said, "If you be at the
meeting, everybody will know just how you vote."
Q. What did you say about that?
A. I told him, no, I won't explain myself.
He said , "Well, if you don't be here, they'll know you
didn't vote for the union."
Q. Did you say anything about that?
A. Yes. I said, "Well, I couldn't afford to lose a
day's work."
Q. What did he say when you told him that?
A. He said, "Go to your foreman and see about
that. He'll see about your day's work if you be off. He'll
see about your money."
Q. Did he tell you you would get paid?
A. That's right. He said, "You'll get paid if you be
off that day."
Q. (By Mr. Johnson) Do you recall if he asked you
anything about the union before he made the statement
you have already testified to? You have already testified
he told you everybody knew how you were going to vote
if you showed up that day and my question is, do you
recall if he asked you anything about the union before
he made that statement to you?
A. Well, he wanted to know was I for the union or
was I for the plant.
Q. And what did you tell him about that?
A. I wouldn't expose myself.
McDonald admitted having a conversation with Steele in
which he told Steele that he heard he was going to be killed
and asked where he wanted to be buried. He placed the
date of the conversation as the day before a union pamphlet
referring to the episode was distributed. The pamphlet was
distributed on October 14, 2 days before the election.io
According to McDonald, he walked up to Steele and asked
him where he would like to be buried and Steele replied, "I
don't know, somewhere around home out there, I guess,
why, is someone talking about killing me?" McDonald then
stated, "I heard you were going to die." McDonald also
testified: "After the conversation I had with Steele about
where he was going to be buried, he stopped me as I was
10 At another point in his testimony, he places the date as around the
1st of October or about a week before the election - which would more
nearly correspond with Steele's recollection. I do not regard the exact date,
however, as important
11 At one point during the hearing McDonald testified that his
conversation with Steele about not election day and making up his lost
time on the following Saturday did not occur during the conversation
about where Steele wanted to be buried but later that same night Although
I would regard McDonald's statement just as coercive whether made
during the same conversation or soon thereafter, I am satisfied that Steele's
account is the more accurate in this regard It has corroboration, moreover,
in the account written up by Plant Manager Hardwick of what McDonald
purportedly told him and which Hardwick incorporated in the written
reprimand appearing in McDonald's file. This account of McDonald's
walking back, and says, `If it wasn't for missing a day's pay,
I wouldn't even come to work Thursday [election day].'
And I said, `Well, usually if there is anybody working on
Saturday, they will let you make up your time on Saturday
if you miss a day." McDonald concededly knew that
Steele's name had been listed as one of the employees who
attended the representation hearing and knew that the
Thursday referred to by Steele was election day.
McDonald testified that the reason he asked Steele where
he wanted to be buried is that about two nights before this a
tire on McDonald's truck, which was parked near where
Steele worked, was punctured and McDonald believed that
Steele would know what McDonald was talking about if he
had done it. McDonald further testified that both he and
Steele laughed during the conversation. McDonald,
however, did not tell Steele about the punctured tire and he
knew that Steele, in his mind, had related the threat to
Steele's union allegiance when Steele remarked that he
would not even come to the plant on election day if he did
not need his paycheck. McDonald nevertheless did not
assure Steele that the threat against his life had nothing to
do with his support of the Union. On the contrary, he
encouraged Steel to believe that it did by suggesting that
Steele could stay away on election day and avoid losing any
pay either by making up the worktime on Saturday (as
McDonald testified) or by arranging with Steele's foreman
to be off without losing pay (as Steele testified).ii
On the whole, I find Steele's account convincing and
believe the conversation in substance was as he related it.
Regardless of whose account is accepted, however, I find
that by the conduct of Foreman McDonald, described
above, Respondent interfered with, restrained, and coerced
Steele in the exercise of his organizational rights, in
violation of Section 8(a)(1) of the Act.12
After the distribution on October 14 of a union leaflet
charging Respondent with threatening an employee and
attempting to bribe him to stay away from the polls on
election day, Respondent called a meeting of its supervisors
and questioned them about whether any of them had said
anything which could have occasioned the union pamphlet.
McDonald told Personnel Manager Palmer and Plant
Manager Hardwick about his conversation with Steele.
Respondent reprimanded McDonald both orally and in
writing for what he had done and required him to apologize
to Steele.
On the following day, Wednesday, October 15, Steele was
called into Personnel Manager Palmer's office where
McDonald, in Palmer's presence, apologized to Steele and
said that he had only been kidding when he made the death
version is as follows.
"While passing Jeff Steele last Friday night I said, "Jeff , where do you
want to be buned9" And Jeff said, "Out in the cemetery near my
home , I guess - Why, is somebody going to kill me?" And, I said, "I
heard you were going to die ." And then Jeff said, "If it was not for me
losing my time, I would not even work Thursday " I said , "Usually, if
they have enough work , they will let you make up your time on
Saturday if you have a good excuse for being off during the week "
After this, I left Jeff working, and returned to Pinion and Gear Line."
12 Other coercive statements made by Foreman McDonald which I find
independently violative of Section 8(axl) of the Act are described
hereinafter in connection with my treatment of the alleged discrimination
against employees Herbert Cumberland and Willie Warren.
U. S. ELECTRICAL MOTORS 213
threat on the preceding day. Palmer assured Steele that he
did not approve of anyone being threatened and wanted
everybody to be happy. A statement regarding what took
place at this meeting, which was prepared by Palmer from
notes taken by him at the meeting and which was later
signed by Palmer, McDonald, and Steele, indicates that
even at the conclusion of the meeting and following the
apology from McDonald, Steele still felt sufficiently
intimidated that he was willing to renounce the Union.
Thus, according to the statement for which Palmer vouched
the following took place after McDonald left the office:
At this point, Jeff started talking with me and I excused
L.D. and the remainder of this conversation took place
between Jeff and myself. Jeff explained to me that he
had 12 children to raise and that he did not want to
have anything to do with Union. That he needed a job
and he was not going to fight the Company. He went on
to state that when he came to work he told me that he
needed to work and he had worked in a union before.
He did not like to belong that they made him join.
I then told Jeff that if anybody tried to threaten him or
to keep him from coming to work on Thursday that I
would appreciate it if he would come to me and tell me.
He assured me that he would and that he was sorry that
this thing happened. Jeff then left the office.
This portion of the statement is uncontroverted and I have
no reason to doubt that Steele did make these statements to
Palmer.13
Also on October 15, Respondent sent to each employee
and posted on its bulletin board the following statement
regarding McDonald's conduct:
It has just come to our attention that a foreman made
what might be described as a threat of physcial harm.
After investigation by the personnel office, it appears
that the foreman made a highly inflammatory remark
which was clearly contrary to company instruction and
company policy. This remark appears to have been
prompted by a personal consideration of the foreman.
However, we do not condone such remarks and we have
instructed the foreman to apologize to the employee
involved for having made such a statement. By the time
many of you read this, that apology will have been
given.
As I have stated before, this company does not wish its
employees to be threatened by any person, at any time,
for any reason and any violation of this policy should be
reported to the plant manager.
It is noted that this notice does not mention the union's or
McDonald's assurance to Steele that he could probably
make up his lost time on a Saturday or could arrange to be
paid for his lost time if he did not come to the plant on
election day. It leaves the impression, contrary to the facts,
that any threat which McDonald may have uttered was due
to some personal controversy between McDonald and
Steele. In my view, the letter did not neutralize the coercive
effect upon the employees of McDonald's threatening
13 Steele did not read the statement before signing it and though it was
read to him before he signed it, I am satisfied that Steele, as he
demonstrated at the hearing when blocks from the statement were read to
him, did not fully comprehend the import of all that was contained in the
statement Insofar as anything contained in the statement may appear
remarks which had been publicized in the union pamphlet
distributed on the preceding day.
D. The Discharge of Herbert W. Cumberland
Herbert Cumberland was employed by Respondent in
October 1966. He had a son who, in the fall of 1969, was in
his last year of high school and played football on the
school team. Cumberland was a football enthusiast and
during 1967 and 1968 his then foreman, Chaney, granted
him permission to get off from work to see all hometown
games and those out-of-town games Cumberland wished
to attend. Cumberland, who was then working on the
second or 3:30 p.m. to 12 shift, would leave work about 8
o'clock and return to the plant about 10:30 when attending
hometown games but would not return when attending
out-of-town games.
About March 1, 1969, however, L. D.McDonald became
foreman of the Gear and Pinion line, where Cumberland
worked on the Burgmaster machine. In early May
Cumberland heard the Respondent was going to operate
the Burgmaster machine on the third shift and requested a
transfer to that shift. He explained to McDonald that he
was requesting the transfer because he wanted to watch his
son play football during the fall of his senior year in high
school and preferred not to ask for time off for the games
and also because he wanted more time to spend on cabinet
making in which he was engaged on the side. McDonald,
though reluctant to release him from the second shift,
finally consented when Cumberland insisted that his
seniority entitled him to the transfer and stated that he
would quit his job if he were not permitted to transfer.
Thereafter, about July 28, McDonald told Cumberland
that the two men he had tried out on the Burgmaster
machine on the second shift had not been satisfactory and
that he needed Cumberland back on the second shift.
According to Cumberland, McDonald at that time asured
him that if he returned to the second shift, he would be
permitted to take time off to watch his son play football,
then punch back in and make up his lost time after the
games. It was only upon this assurance , Cumberland
testified, that he agreed to return to the second shift.
McDonald, on the other hand, testified that he promised to
permit Cumberland to take time off for the games only
when production schedules permitted this. I think it likely
that regardless of the precise words used, McDonald did
assure Cumberland that he would be permitted to attend
the football games as he had done in the preceding 2 years
and that this is what induced Cumberland voluntarily to
accede to McDonald's request that he return to the second
shift. At that time, I do not believe that McDonald could
have foreseen that the Gear and Pinion line on the third
shift would soon (about August 20) be eliminated or that
other circumstances might arise which would cause
McDonald to want to depart from the manner in which his
predecessor, Foreman Chaney, had handled Cumberland's
requests for time off.
inconsistent with Steele 's testimony at the hearing , I find that his testimony
is more reliable At the hearing when being questioned about whether, as
the statement would indicate, he told McDonald and Palmer that he
thought McDonald was only kidding , Steele answered "I didn ' t know I
didn't say it because I didn 't know what he meant."
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All of this occurred prior to the advent of the Union on
the scene . Cumberland attended the August 17, 1969, union
meeting, signed a union card, and distributed cards to other
employees at the plant and around the community during
the next 2 weeks. McDonald and Prrsonnel Manager
Palmer concededly heard of his association with the Union.
The first game of the season was on Friday night,
September 5. It was an out-of -town game . On Thursday,
Cumberland told McDonald of the date of the game and
asked if McDonald had made arrangements for him to get
off to attend the game . McDonald replied that he had not.
Cumberland testified that he reminded McDonald of his
agreement and McDonald replied that he knew he had
made the promise but that things had changed since then.
Cumberland then asked if McDonadl was referring to the
fact that the Union was "coming in and trying to get in
here" and McDonald replied "yeah." Cumberland protest-
ed that he had been promised that he could get off.
McDonald responded that the only way he knew that
Cumberland could get off would be for him to call in the
next night and say he was sick . McDonald promised that if
no one else checked on Cumberland , McDonald would say
nothing about it.14 Cumberland then asked if the Company
was putting pressure on McDonald and the latter replied,
"You better bet they are." He added that he would be glad
when the representation matter was over and that he did
not care which way it turned out.
On the following night, Cumberland did not show up for
work and went to the ball game. His wife, who also worked
at the plant, told McDonald at the beginning of the night
shift that Cumberaland was sick and would not be at work.
When Cumberland returned to work on the following
Monday morning, nothing was said to him about his
absence on the preceding Friday night.
McDonald conceded that at the time Cumberland
requested time off to go to the ball games, some of the
employees had told him that Cumberland was attending
union meetings . He categorically denied, however, that he
told Cumberland that things had changed since McDonald
asked Cumberland to return to the second shift or that he
told Cumberland that he, McDonald, was under a lot of
pressure. Cumberland's testimony on this point was in
convincing detail and I credit his version of the conversa-
tion he had with McDonald on the night of September 4.
The next football game, one between the Philadelphia
high schools, was scheduled for Friday, September 12. On
the preceding Thursday night, Cumberland again asked
McDonald if he had made arrangements for Cumberland
to get off at suppertimer to see the game. McDonald replied
that he had not and that because of the work schedule, he
could not permit Cumberland to take time off. Cumberland
asked if he would lose his job if he went and McDonald
14 This finding is based upon Cumberland's credited testimony
McDonald testified that he did not remember telling Cumberland this but I
do not regard McDonald's testimony as a denial that he made this
suggestion to Cumberland
15 Chester Nowell, a nonunion employee, who worked in the inspection
department under another was not subject to the same production
schedules applicable to Cumberland's work, was given permission to be off
Another employee, Winnie Thomas, who worked in the winding
department and wanted to see all of the University of Mississippi football
games in which her son participated , was about to resign herjob in order
to do so Plant Manager Hardwick put her on a leave-of-absence instead
stated that he would do everything possible to see that
Cumberland lost his job. Before quitting that night,
Cumberland told McDonald that he had heard that some
of the other foremen were letting their employees take time
off for the game and come back later to make up their lost
time and asked that he be permitted to do the same.15
McDonald still refused to grant permission. Cumberland
then asked if McDonald would mind if he, Cumberland,
talked to General Foreman Dorman Pope about the matter
and McDonald replied that he would not mind. However,
at quitting time when Cumberland punched out and started
toward Pope's office, McDonald called him back and asked
Cumberland if he realized what would happen if Cumber-
land went to the game on the following night. Cumberland
stated that he did not. McDonald thereupon stated that he
would fire Cumberland. Cumberland replied that, in that
event, McDonald might as well fire him then. McDonald
stated that he did not want to fire Cumberland. Cumber-
land told McDonald that he would be willing to make up
his lost time in any way McDonald wanted it and would
even punch back in then and work 3 hours of extra time
that very night to make up for the time he expected to lose
the next night. McDonald refused to go along with that
suggestion. At the conclusion of the conversation Cumber-
land asked if McDonald wanted him to come in and work
until 8 p in. or not come in at all the next night. McDonald
then asked him to come in and work until 8 p.m.
Cumberland did come in and work until 8 p.m. (the
supper break) on September 12. Then, without saying
anything further to McDonald, he left the plant and did not
return until the following Monday morning When he
reported at the plant on Monday morning, his card had
been pulled. McDonald took him to the office of General
Foreman Pope. Pope told him to return to the plant on
Wednesday to see Personnel Manager Palmer, who was
then out of town. Cumberland explained to Pope that he
had offered to make up his lost time in any way McDonald
wanted it and asked McDonald, in Pope's presence,
whether he had ever failed to do his work or given the
Company a moment's trouble in any way since he had been
employed. McDonald replied that he had not
Cumberland returned to the plant on Wedneday, as he
was told to do, but Personnel Manager Palmer was still not
available to see him. 16 Instead, he was interviewed by Plant
Superintendent Campbell, in the presence of General
Foreman Pope. Campbell stated that Palmer would not be
available to talk to Cumberland before Friday and that
Cumberland could wait until Friday for an interview if he
wished. Cumberland replied that if the Company was going
to fire him, Cumberland preferred to get it over with;
otherwise, he would like to go back to his machine and
work. Campbell then said that under all the circumstances,
and she is now again working for Respondent
16 Palmer was then attending a conference with corporate and divisional
representatives in St Louis He had attended the same ball game which
Cumberland had attended on the preceding Friday night , had seen
Cumberland there, and had apprised Plant Manager Hardwick of this fact
and of McDonald 's denial to Cumberland of permission to attend the
game before Palmer left for St Louis In St Louis , Palmer consulted with
corporate and divisional officials about McDonald's proposal to terminate
Cumberland and they gave their approval of this action Palmer then
communicated the decision to Plant Manager Hardwick by telephone
U. S. ELECTRICAL MOTORS
Campbell would have to terminate him, and he was
terminated.
McDonald testified that he recommended Cumberland's
termination because Cumberland took time off despite the
fact, as he told Cumberland, that the production schedule
was too heavy to warrant the grant of permission for his
absence. McDonald testified that production on Cumber-
land's particular machine, the Burgmaster, may not have
suffered that night but this was because McDonald had to
move a man from some other operation to the Burgmaster
and "some operation had to be lacking." Accordingly,
production was hurt somewhere along the line.17
As Plant Manager Hardwick explained, the gear and
pinion department has two major manufacturing functions,
the manufacture of pinions and gears and the manufacture
of worm shafts and wheels used in right-angle syncrogears.
The Burgmaster machine (on which Cumberland worked)
produces gears only for the parallel syncrogears and not the
right-angle syncrogears. Respondent introduced in eviden-
ce a graph, prepared under Hardwick's directions, plotting
the number of parallel syncrogears scheduled per month by
sales for the fiscal year 1969. This graph shows a substantial
increase in the parallel syncrogears scheduled for Septem-
ber over those scheduled for August.
Respondent also produced a summary of gear production
requirements for each week from the period August 25
through September 26, 1969. This document (Resp. exh. 7)
purports to list for each week the number of parts
scheduled for production and actually produced of each
gear part described on the schedule. From the monthly
schedule of parts required, there is prepared and furnished
to Foreman McDonald on each Thursday a schedule
showing the number of each type of gear parts described in
the schedule which is required to be produced during the
following week.18 This does not mean that every part listed
on the schedule must be commenced and completed during
the week shown on the schedule. The production of gears is
a continuous process. If gears listed on 1 week's schedule
are not all completed during that week, the remainder are
carried over to the following week for completion. The
summary of gear production schedules on which Respon-
dent relies to show that production schedules did not
permit McDonald to grant Cumberland's request for time
off to see his son play football, shows that for the week
ending Friday, September 12 (when Cumberland was
absence for part of his shift) the Gear and Pinion line had
met its scheduled production requirements but that on no
other week did it do so. It might be argued that since
unfinished parts scheduled for 1 week are carried over to
the next week, Respondent's production for the month was
presumably current as of September 12. It might also be
argued that the failure of the gear and pinion line to meet its
scheduled production for the following 2 weeks was due to
17 As McDonald explained , the Burgmaster machine operation is a vital
step in the production of gears Metal for the gears is first cut off from bar
stock ; the next step is the facing of the gear blank with a Swazey Lathe, it
then goes to the Burgmaster (Cumberland 's machine) where the bore is
sized , the base of the gear is paralled, and the outside diameter of the gear
is cut to certain dimensions , the gear then goes to the hobbing machine
where teeth are put on the gear blank , it then goes to the shaver where the
gear is smoothed and teeth are cut to a definite size , next it goes to the
Keyway machine where it is heat treated to make the teeth hard , it then
215
Respondent' s action in terminating Cumberland, a valua-
ble and efficient employee on that line. Nonetheless, I shall
assume , as McDonald asserted , that he knew he had a
heavy schedule for the following week and for that reason
did not want Cumberland to take time off.
This assumption, however, does not dispose of my
problem in determining McDonald's and therefore Res-
pondent's motivation in terminating Cumberland. McDo-
nald testified that he was unwilling to have Cumberland
return to the plant after the game and make up his lost time
by working overtime on that Friday night because the third
shift is not operating on Friday nights and if Cumberland
should get hurt while working alone, there would be no one
present to get him out. I accept McDonald's explanation as
to why he was unwilling to permit Cumberland to work
overtime on Friday night. McDonald, however, did not
explain why he refused to permit Cumberland to make up
his lost time on some other occasion. As already noted,
Cumberland had offered on Thursday night to make up his
lost time at anytime which might suit McDonald's
convenience and had even offered to punch back in and
work 3-1/2 hours then. The third shift was then operating
from Sunday night through Thursday night.
McDonald's unexplained refusal to permit Cumberland
to take a few hours off to see the game and make up his lost
time at anytime which might suit McDonald's convenience
must be viewed against the backdrop of what had occurred
earlier. It is undisputed that during the 1967 and 1968
football season, Cumberland's then foreman , Chaney, had
granted all of his requests for time off to attend games in
which his son played. In July 1969, when requesting
Cumberland to return to the second shift, McDonald had
assured him that he could have time off to watch his son
play football during his last year in high school and make
up his lost time. It was on the basis of this promise that
Cumberland had voluntarily come back to the second shift.
This promise, however, was made prior to the commence-
ment of the Union's organizational campaign and McDo-
nald's information that Cumberland was attending the
union meetings. As McDonald told Cumberland on the
first occasion when Cumberland requested time off, things
had changed since McDonald had given that assurance. He
explained that the Union had started its organizational
campaign and that the Company was putting pressure on
McDonald. Respondent, as we have seen, had issued an
antiunion letter to the employees on August 21, telling them
that Respondent felt that they did not need a union in the
plant and shortly thereafter had announced substantial
wage increase and other benefits for the purpose, as I have
found, of inducing the employees to reject the Union at the
polls. In view of Respondent's antiunion policy, it is
apparent that McDonald believed he had to adopt a tough
approach in responding to requests for favors from a
goes to the internal grinder where the bore is sized , then it goes to the
finisher where the heat scale is taken off; from there is goes into stock.
is McDonald also receives a "Cutoff schedule " each Tuesday and is not
required to have the scheduled gear in stock until Friday of the following
week . McDonald testified , however, that although he has up to 10 days to
produce a gear (from the time the bar stock is cut until it goes into stock),
he could have a gear in stock within 2 or 3 days from the time it is cut off
the bar
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
known union adherent. I am convinced that but for the
advent of the Union's organizational campaign and
Cumberland's known union sympathies, McDonald would
have kept his promise to let Cumberland have time off to
attend the games and would have arranged, if necessary, for
Cumberland to make up his lost time. Respondent's refusal
of this permission to Cumberland and its subsequent
discharge of Cumberland for taking time off was therefore
discrimination to discourage union membership, within the
meaning of Section 8(a)(3) and (1) of the Act.
E. The Transfer and Reduction in Labor Grade of
Employee Willie E. Warren
Warren has been continuously employed by Respondent
since July 22, 1966, in the gear and pinion department at
various jobs and on all three shifts. He started as a grinder
operator at labor grade 7 and was working at labor grade 8
"running the red roller" on the second shift when, about
June 1, 1969, he was made a set-up man "B" at labor grade
9. A higher labor grade carries with it a higher hourly rate
of pay than does a lower grade.
After Warren had been set-up man "B" on the second
shift for about a month, he asked his foreman, McDonald,
for a transfer to the third shift, explaining to McDonald,
that he needed more time for outside work which he was
performing. 19 His request for a transfer was approved, but
before leaving the second shift, he trained another
employee as a replacement for his job as set-up man "B"
on the second shift. At the time of tranferring to this third
shift, Warren was told that the J-9 gear and pinion line on
the third shift was to be operated on a trial basis and
McDonald did not know how long it would last.
On August 4, 1969, as a result of pressure put upon local
management from the Milford, Connecticut, office, to
reduce operating costs, among other ways, by reducing the
number of employees doing indirect labor, 19 employees at
the Philadelphia plant were transferred from indirect to
direct labor jobs, 12 of them at reduced labor grades.
Indirect labor is nonproductive work, such as that
performed by a supervisor, setup man, repairman, or
janitor. Among those employees reported by Personnel
Manager Palmer to the Milford office on August 5, 1969,
as having been changed to direct labor was Warren. He
was listed as having been transferred from the position of
set-up man "B" to "Burgmaster" (see Res . exh. 5); a
recapitulation of the action taken, which was prepared for
the purposes of the hearing in this case (Resp. exh. 8),
shows that Warren's labor grade at that time was reduced
from 9 to 8.20
On Sunday, August 17, the Union held a meeting at the
home of employee Howell, adjoining Warren's premises.
Warren attended the meeting, signed a union card, and
passed out four cards to fellow employees at work that
night.
On the following Tuesday, August 19, Warren was
19 Employees on the third shift worked only 7 hours each night (instead
of the 8 hours worked on other shifts ) but were paid for 8 hours of work
20 This appears to have been a mere paper transaction for, according to
Warren 's undemed and credited testimony , he continued throughout the
time he was on the third shift to perform the work of setup man "B" and
did not know until he heard testimony regarding the matter at the hearing
that he had been transferred on Respondent 's records to the Burgmaster
machine at labor grade 8 Another employee , Ross Townsend , operated the
informed by General Foreman Cheatum that the gear and
pinion line on the third shift was being eliminated and that
he was being tranferred back to the second shift as a pinion
straightener at labor grade 6.21 Warren reported back to
Foreman McDonald either that night or the following night
and commenced at his new assignment without then
voicing any objection. It is Respondent's policy, when
transferring an employee to a job rated at a lower labor
grade to "redline" the employee's wages, that is, to pay him
at the same hourly rate of pay he had been receiving, with
the expectation that the employee will later again be
advanced back to his prior labor grade job. Warren
therefore did not receive any cut in pay because of the
reduction in his labor grade. In fact, because of the bonus
and incentive pay received on the newjob Warren actually
receive more than he had received as setup man "B" on the
third shift. The disadvantages, however, were that he had to
work 8 hours a day instead of 7, and that his chances of a
raise in pay were frozen. It had taken Warren 3 years to
advance from labor grade 7 to labor grade 9. Although by
the time of the hearing, about a year after Warren's
reduction in labor grade, Warren had advanced to
Burgmaster machine operator at labor grade 8, his former
setup man "B" classification had been advanced on June 1,
1970, to labor grade 10.
It is clear from the record that Respondent was
motivated by business considerations in reducing the
number of employees on the gear and pinion line on the
third shift to one man. The General Counsel and Union,
however, contend that Respondent was discriminatorily
motivated in reducing Warren's labor grade from 9 to 6
and, in any event, in failing thereafter to restore him to his
former status . This contention appears to be based upon
statements , described below, which Foreman McDonald
allegedly made to Warren subsequent to his transfer back
to the second shift.
About 3 weeks after his transfer back to the second shift,
as the result of remarks made to him by one of the set-up
men, Warren had a talk with Foreman McDonald in the
latter's office. According to Warren, he asked McDonald
why he had been put back on the second shift and
McDonald replied, "You know as well as I do why you got
put back." Warren then said, "Yeah, on account of the
Union." McDonald denied that this was true and explained
that "they were cutting the third shift out anyway." Warren
then asked, "What about my Labor Grade." McDonald
responded, "Actually I don't know ... I don't know for
sure but it (working with the Union) could have something
to do with it, cutting your Labor Grade." At that point
Warren inquired whether McDonald had heard that the
union meeting had been held at his, Warren's, house.
McDonald replied in the negative and explained that he
heard the meeting had been in Warren's pasture.
Later, about 6 months before the hearing in this case,
Burgmaster on the third shift from the time Herbert Cumberland, on July
28, was recalled to the second shift until August 20 or 19, 1969, when
Warren was transferred back to the second shift.
21 One of the five employees on Warren 's line had been tranferred to
the press department on the third shift during the preceding week. Two
others were transferred to what was known as the J - 1 line on the third shift
and the remaining employee was retained on the gear and pinion line
U. S. ELECTRICAL MOTORS
according to Warren, McDonald told him that he would
like to get Warren back to his set-up man job as quickly as
possible but that his hands were tied . He added that he
hoped Warren would have nothing to do with another
union campaign if one should start and Warren promised
that he would have nothing to do with it. McDonald stated
that Warren would have to prove himself before he could
ever be made a set-up man again.
McDonald conceded that he had a talk with Warren a
few weeks after Warren's return to the second shift in
which Warren asked if McDonald had heard that a union
meeting had been held at his house and in which
McDonald replied that he heard it was in Warren's
pasture . Warren then explained , according to McDonald,
"It wasn't in my pasture or at my house, it was at a
neighbor's house." McDonald also conceded that Warren,
during this conversation, asked why he had been trans-
ferred back to the second shift and that McDonald had
replied substantially as testified to by Warren. McDonald,
however, dewed that any mention was made of Warren's
Labor Grade during this conversation. McDonald testified
that he did not recall having any conversation with Warren
about returning him to the set-up man job and denied
saying anything to Warren about having to prove himself
by abstaining from union activities before he could be
promoted.
The resolution of credibility issues is seldom easy and
has not been easy in this case . I can only say that as I
listened to Warren testify, he sounded truthful and
convinced me by his demeanor that he was telling the
truth. After a careful study of the record, I adhere to that
conviction. McDonald, while frank up to a certain point,
did not impress me as completely frank on some of the
critical issues. I credit Warren's version of his conversa-
tions with McDonald which were had subsequent to his
transfer back to the second shift and find that McDonald
by expressing the view to Warren that his working with the
Union might have had something to do with the reduction
of Warren's labor grade and by later indicating to Warren
that he would have to prove himself by abstaining from
union activities in the event of another union campaign
before he could be made a set-up man again, interfered
with, restrained, and coerced Warren in the exercise of his
organizational rights, in violation of Section 8(aXl) of the
Act.
I am not convinced, however, that Respondent was, in
fact, discriminatorily motivated in transferring Warren
back to the second shift at a reduced labor grade or in
thereafter failing, prior to the hearing, to restore him to his
former setup man "B" job. His labor grade, at least on
paper, had already been reduced from 9 to 8 by August 5,
1969, before the advent of the union's campaign. At the
time it became necessary to reduce the gear and pinion line
on the third shift from five men to one man, General
Foreman Cheatum asked Foreman McDonald to take one
or more back to the second shift. McDonald stated that he
had only one job available, that of pinion straightener, a
labor grade 6 job. It was not shown that any of the other
employees on the third shift gear and pinion line were
transferred to jobs with higher labor grade classifications
which Warren could have performed. Warren did not
object to the transfer on August 19 when notified of it. He
217
was thereafter tranferred to a Warner-Swaze machine, then
to the Burgmaster machine at labor grade 8 - the same
labor grade at which, on Respondent's records, he was
classified prior to the advent of the Union. The General
Counsel has not shown that Warren, under established
company practice, was entitled to bump the man on the
second shift whom he trained to replace his as setup man
"B" when Warren transferred to the third shift and Warren
testified that he did not know of any vacancy in a setup
man "B" job to which he believed he would be entitled.
Accordingly, I must conclude that the General Counsel has
failed to establish, as alleged in the complaint, that
Respondent violated Section 8(a)(3) of the Act by
transferring Warren back to the second shift, by demoting
him or by failing to refusing to return him to his former
status as set-up man "B".
It is noted, however, that in view of Respondent's plans
to increase its labor force by about 350 employees within
the 18-month period following October 1, 1969, it would
appear likely that more setup man "B" or equivalent job
classifications for which Warren is qualified will open up,
if they have not already done so. If Respondent fails, or
has failed, to promote Warren to such a job, it would
appear appropriate for Warren, in view of McDonald's
coercive statements to him, to then file a charge alleging
discrimination against him for prohibited reasons.
CONCLUSIONS OF LAW
1. Respondent has interfered with, restrained, and
coerced employees in the exercise of their rights guaranteed
in Section 7 of the Act, in violation of Section 8(a)(1) of the
Act by the following acts and statements: By timing the
announcement and grant of wage increase and other
benefits for the purpose of interfering with its employees
free choice of a bargaining representative; by making
statements designed to create the impression that Respon-
dent was keeping an employee's union activities under
surveillance and that unspecified reprisals would be
suffered by him for engaging in union activities; by
threatening that another employee would be killed because
of his allegiance to the Union and by attempting to induce
him to stay away from the polls on election day by assuring
him that it could be arranged for him not to lose any pay if
he stayed away; by informing an employee that his request
for time off which he had previously been assured would be
granted was being denied because of the union's organizing
campaign in which that employee had participated; and by
telling an employee that his labor grade might have been
reduced because of his activities on behalf of the Union and
that he would have to prove himself by abstaining from
assisting the Union in any future campaign before he could
be restored to his former setup man classification.
2. By discriminatorily discharging employee Herbert
W. Cumberland to discourage membership in or activities
on behalf of the Union, Respondent has violated Section
8(a)(3) and (1) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
4. A preponderance of the evidence does not support
the allegations of the complaint that Respondent violated
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(a)(3) or (1) of the Act except in the respects above
found.
THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) and (3)
of the Act, my recommended Order will require that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
To remedy the discriminatory discharge of employee
Herbert W. Cumberland, my recommended Order will
require that Respondent offer him full and immediate
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make him whole for any resulting loss of pay suffered by
reason of his discharge, less his net earnings for the period
during which he would have been working except for the
discharge. These net earnings, of course, shall not include
earnings at extra work performed by him during hours
when he would not normally have been working for
Respondent. Backpay shall be computed on a quarterly
basis in the manner prescribed by the Board in F. W.
Woolworth Co., 90 NLRB 289, with interest at 6 percent per
annum as provided in Isis Plumbing & Heating Co., 138
NLRB 716.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended.
ORDER22
Respondent, U.S. Electrical Motors, Division of Emerson
Electric Company, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Timing the announcement or grant of wage increase
or other benefits for the purpose of interfering with the
employees' free choice of a bargaining representative.
(b) Attempting to frighten any employee into giving up
his union membership or activities by saying anything to
any employee designed to create the impression that
Respondent will engage in surveillance of his union
activities; threatening death or other punishment of any
employee for joining or helping the Union; suggesting to
any employee that his labor grade may have been reduced
because of his union activities; or telling any employee that
he will have to prove himself by refraining from union
22 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusion, recommendations, and recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conlusions, and order, and
all objections thereto shall be deemed waived for all purposes
23 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
activities before he can be promoted to a setup man
classification.
(c) Attempting to induce any employee not to vote in a
representation election by assuring him that arrangements
can be made for his wages to be paid him anyway if he stays
away from the plant when the election is being conducted
there.
(d) Retaliating against any employee for engaging in
union activities by denying him time off from work which
Respondent would otherwise grant him, or by discharging
him
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed under Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Herbert W. Cumberland immediate, full and
unconditional reinstatement to his formerjob or, if that job
no longer exists, to a substantially equivalent job without
prejudice to his seniority and other rights, privileges or
working conditions, and make him whole for any loss of
earnings suffered in the manner stated in the section hereof
entitled "The Remedy"; and notify him, if he is presently
serving in the Armed Forces of the United State of his right
to full reinstatement upon application in accordance with
Selective Service Act and the Universal Military Training
and Service Act, an amended, after discharge from the
Armed Forces.
(b) Preserve and upon request make available to
authorized agents of the National Labor Relations Board,
for examination and copying, all payroll and other records
necessary or useful in determining compliance with this
Order, or computing the amount of backpay due.
(c) Post at its plant in Philadelphia, Mississippi, copies of
the notice marked "Appendix " [omitted from publication]
23 Copies of said notice on forms provided by the Regional
Director for Region 15, after being duly signed by
Respondent's authorized representative, shall be posted by
it immediately upon receipt therof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places were 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.
(d) Notify the Regional Director for Region 15, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.24
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations not found above to have been
committed.
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgement of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board "
21 In the event that this recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 15, in writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith "