Emerson Electric Co.

National Labor Relations Board - Board Decisions

Apr 7, 1977

228 N.L.R.B. 1275 (N.L.R.B. 1977)

EMERSON ELECTRIC COMPANY
Emerson Electric Company and Jerry Floyd . Case 14-
CA-9016
April 7, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On November 8, 1976, Administrative Law Judge
Thomas R. Wilks issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,2 and
conclusions 3 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Emerson Electric
Company, Kennett, Missouri, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
i The Respondent has requested oral argument This request is hereby
denied as the record, the exceptions, and the brief adequately present the
issues and the positions of the parties
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge ' s resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd 188 F2d 362 (CA 3, 1951) We have
carefully examined the record and find no basis for reversing his findings
3 The Administrative Law Judge found, and we agree, that Respondent
violated Sec 8(a)(3) and (I) of the Act by discharging Jerry Floyd In
reaching this conclusion , the Administrative Law Judge found that
Respondent 's weekly audit reports prior to December 1975 revealed that no
matter how many defects were found in a single motor , they were counted as
only one major or critical defect , while after December 1975 the various
defects on a single motor were listed separately , thereby raising the dement
level per motor However , a review of the reports shows that even pnor to
December 1975 the defects in a single motor were listed separately We
therefore disavow the Administrative Law Judge's finding that the
Respondent changed its method of reporting defects Since the Respon-
dent's violation of Sec 8 (a)(3) and (1) of the Act by discharging Floyd is
established by other evidence, we in all other respects affirm the
Administrative Law Judge 's rulings , findings, and conclusions
STATEMENT OF THE CASE
DECISION
1275
THOMAS R. WILKS, Administrative Law Judge: A
hearing in this proceeding was held on April 26, 27, 28, and
29 and May 18 and 19, 1976, at Caruthersville , Missouri,
based upon a charge filed on January 16, 1976 , against
Emerson Electric Company by Jerry Floyd, an individual,
and a complaint and amendment to complaint issued by
the Regional Director for Region 14 on March 2 and 30,
1976, respectively. Briefs were submitted by Respondent
and the General Counsel on July 19, 1976. The complaint,
as amended prior to and at the hearing , alleges that
Respondent violated Section 8(a)(1) and (3) of the Act by
engaging in various acts of restraint and coercion of
employees , including discriminatory reprimands, job as-
signments , and discharge . Respondent denied the substan-
tive allegations of the complaint, but admitted the
jurisdictional , labor organization status, and supervisory
status allegations with the exception of the allegation of
agency status of the guard, Jack Claridy.1
On the entire record2 in this case, including my
observation of the witnesses , their demeanor and the
inherent probability of their testimony, and consideration
of able and comprehensive briefs of the parties, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
Emerson Electric Company, herein called Respondent, is
a Missouri corporation engaged in the manufacture, sale,
and distribution of electrical appliances and related
products, and maintains an office and place of business in
St. Louis, Missouri , and other plants, including one at
Kennett , Missouri.
During the year ending December 31, 1975, a period
representative of its operations , Respondent in the course
and conduct of its operations manufactured, sold, and
distributed at its Kennett , Missouri, plant products valued
in excess of $50,000, which were shipped from said plant
directly to points located outside the State of Missouri.
Respondent is an employer engaged in commerce within
i At the hearing the General Counsel withdrew pars 6A and 6B of the
complaint and was permitted to amend the complaint to additionally allege
pars . 6U and 6V as further allegation of 8(a )( l) violations . The parties
further stipulated that all individuals employed by Respondent as assistant
foreman held supervisory status positions within the meaning of Sec 2(l1)
of the Act The parties further stipulated to the supervisory status of
Foreman Jewel Causey , Foreman Carol Haywood , Quality Control
Manager Ed Lee, General Foreman Eddie Cross, Plant Superintendent Jack
Millikin, Foreman Jerry Robinson , and Assistant Foremen Carl Lewis, Don
Simco, and Woody Woodward.
2 The General Counsel's motion to correct the transcript is unopposed
and hereby granted.
228 NLRB No. 162
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the meaning of the Act, and it will effectuate the policies of
the Act to assert jurisdiction herein.
Local 574, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meamng of Section 2(5) of
the Act
II. THE UNFAIR LABOR PRACTICES
A. Introductory Statement
Respondent is engaged in the production of electric
motors at the Kennett, Missouri, plant, where it has been
subject to several union organizing attempts in past years,
1964, 1965, 1967, and 1973. The most recent attempt was
initiated by the Union in the fall of 1975, after a business
recession which saw a reduction in employment from a
peak of about 1,300 employees to a nadir of about 700 the
preceding summer. A Board-conducted election was held
on November 13, 1975, among approximately 888 eligible
voters The alleged unfair labor practices arise within the
context of the 1975 campaign.
B Application of No-Solicitation Rule
The complaint as amended, paragraphs 6C and 6D,
alleges that Respondent discnminatonly applied a no-
solicitation rule at the Kennett plant on two occasions
dunng the 1975 campaign.
Respondent has maintained in one form or another a
rule restricting general solicitations of employees dunng
working time, or in working areas, since 1970. The rule was
modified and republished in a house organ on January 17,
1974, republished on February 2, 1976, and again on
March 2, 1976. The rule is neither alleged nor argued to be
unlawful per se, however, its application is contended to be
discriminatorily applied against union adherents, whereas
a multitude of other solicitations for various causes or sales
of products have been tolerated.
On September 22, 1975, employee Ethel Davis, one of the
initiators of the 1975 organizing campaign, questioned
Foreman Royal Broadway about his feelings toward a
union, and was cautioned to refrain from doing, "Nothing
on company time, not to talk about the union on company
time or working time."
On October 2, employee Jerry Floyd, was called to the
office of Personnel Manager Collins following Floyd's
distnbution of union literature in the breakroom of the
plant before his worktime, and was read the no-solicitation
rule and informed that anyone discovered soliciting dunng
worktime would be reprimanded. Floyd was not accused of
breaking the rule and was merely warned.
With respect to the September 22 incident, the General
Counsel asserts in his brief that the stated rule was on its
face invalid despite the General Counsel's explicit conten-
tion at the hearing that it was not evidence of an 8(a)(1)
violation. Presumably the argument behind the assertion is
that Broadway's words are ambiguous enough to preclude
union solicitation dunng work hours, i.e., breaktime or
times when an employee is clocked in but not actively
working. However, the record is clear that Respondent by
its publication and conduct did not prohibit union
solicitation during those times, and that Davis as well as
others did not construe the prohibitions to be so restrictive
and they acted accordingly. I do not conclude that
Broadway's statement is an announcement of a per se
invalid no-solicitation rule but rather a rule restricting
employees dunng actual worktime. Cf. Essex International,
Inc., 211 NLRB 749, 750 (1974).
With respect to the disparate enforcement allegation,
there is an issue of fact. General Foreman Cross, Personnel
Manager Collins, and Foreman Broadway testified that
employee sales and nonunion solicitation were never
knowingly permitted. Plant Manager Stack gave uncontro-
verted testimony that during October he cautioned employ-
ee Dons Long that discussing such things as the cost of
rental of an American Legion Hall during working time
violated the rule. Davis, Floyd, and employee Jimmy Smith
testified in generalized terms that they have observed
occasions when employees sold during "working time" Girl
Scout cookies, jewelry, tupperware, fair tickets, "Stanley
degreaser," and that they also observed solicitation for the
Umted Way, for flowers, and going-away presents. Fifteen
other witnesses called by the General Counsel did not
testify as to this issue . Only in a few occasions did the
adduced testimony indicate that a supervisor of Respon-
dent was aware of the activity, which involved a few
employees out of a plant in excess of 1,000 employees.
With respect to supervisory approval, on one unspecified
date an assistant foreman, Garfield Young, contributed to
a flower collection according to Davis' uncontradicted
testimony. Smith testified without contradiction that he
sold a bottle of degreaser to Assistant Foreman Tayior in
1975, or early 1973. Floyd testified that he observed
Assistant Foreman Haywood bringing pecans into the
plant at the 1975 harvest, but did not observe the sale to
employees during their work time. Floyd aiso testified
without contradiction that, on September 19, Assistant
Foreman Gary Alsup attempted to sell him a ticket to d he
Jaycee fair as Floyd was returning to the work station after
dinner. I find this evidence too vague, limited, and isolated
to support a conclusion that Respondent consciously
tolerated solicitation during nonworking time except those
for solicitation for union support. Smith's own testimony
indicates that it was the normal responsibility of the
subforeman (a nonsupervisory work leader) to keep all
employees' conversation to a minimum while they were
actively engaged in work, regardless of the subject matter.
Implicit in his own testimony is a recognition that all
unnecessary talk was prohibited dunng working time and
that what may have occurred in the way of solicitations
were nonapproved breaches of that prohibition.
Accordingly, I find insufficient evidence to support the
allegations of the complaint which allege a discriminatory
apphcation of the no-solicitation rule. Cf. Sequoyah
Spinning Mills, Inc., a wholly owned subsidiary of Sequoyah
Industries, Inc., 194 NLRB 1175, 1166 (1972).
C. Surveillance
The complaint alleges that Respondent engaged in
surveillance of employees' union activities on two occa-
sions (pars. 6E and 6L), and created the impression of
surveillance on two occasions (pars. 6F and 6K).
EMERSON ELECTRIC COMPANY 1277
The first alleged surveillance is based on employee Ethel
Davis' testimony regarding her secret meeting on Septem-
ber 12 , at the Dixie Park Motel in Kennett , with union
representatives which served as a prelude to the organizing
campaign . She was accompanied by employee Skaggs after
having excused herself from employment to care for a sick
child . She arrived at the motel by taxi , thus not parking her
car there . Davis testified that she observed Plant Manager
Stack and Personnel Manager Collins drive past the motel
several times in a span of several minutes in the early
afternoon as she peered from one of the rooms within, at a
distance of about 150 yards. Skaggs testified that they
"messed around" waiting for the union representative, but
she (Skaggs ) did not look out the window . The motel is at
the intersection of two main highways which lead to town
and to the plant . Stack and Collins deny that they drove
past the motel that day in the manner described by Davis,
and that if they did drive by it was not for the purpose of
surveillance but to get to the plant , to lunch , or to the plant
warehouse . I find Davis to be a wholly unreliable witness
based upon her demeanor which I found stridently
partisan, and upon the inconsistencies in her testimony at
the hearing and her prehearing investigatory affidavit,
particularly with respect to the timing, duration, and
manner of the incident . I therefore credit the denials of
Stack and Collins and conclude that no surveillance
occurred on September 12.3
Davis also testified , without contradiction , that on
October 6 , prior to the start of the 7 a.m. shift , she went
into the plant parking lot and passed out union pamphlets
to employees in their cars. She testified that during this
period of about one-half hour Plant Guard Jack Claridy
came out of the plant entrance and observed her at a
distance . Personnel Manager Collins testified that it is part
of Claridy's duties not only to check the identification
cards of employees who enter the plant but also to keep an
eye on the parking lot for any possible theft or vandalism.
Davis testified that she had hitherto never observed
Claridy patroling the parking lot. I have already described
her unreliability as a witness . In any event her individual
failure to notice Claridy in the parking lot is hardly an
effective rebuttal to testimony that his duties called upon
him to check out the parking lot. Respondent denies the
agency status of Claridy . The General Counsel adduced no
evidence of his agency status but relies on the general
principles of the agency. I do not find it necessary to
resolve that question because I find that his conduct could
not in any event be construed to constitute surveillance.
Davis testified that on a prior occasion she openly engaged
in solicitation in the cafeteria in close proximity and view
of supervisors . She did the same immediately after Claridy
observed her . Her activity was self-publicized . The supervi-
sors in the lunchroom surely were not obliged to avoid
looking at her. I see no distinction between a cafeteria and
a parking lot. When she engaged in open solicitation in the
plant parking lot she assumed the risk of open observation
by employee and supervisor alike. Even if the watchman
were an agent of the employer I do not find that he was
obliged to stay in the plant . I fully credit the testimony that
he is not restricted to the entrance , but is expected to check
the parking lot. There is no evidence that Clandy
eavesdropped or recorded the activity of Davis. I therefore
conclude that no unlawful surveillance occurred on
October 6 . Cf. Utrad Corporation, 185 NLRB 434, 439
(1970).
Jimmy Smith testified that he obtained union authonza-
tion cards from Davis on Saturday , September 12, and
proceeded to obtain support from fellow employees at their
homes. He also solicited employees on nonworking time
during the following week at the plant . This was not
Smith's first association with union organizing efforts. He
openly assisted organizing efforts of the Union at the
Kennett plant in 1967 and 1968, but was not active in the
most recent prior campaign in 1973 . Smith testified that on
Monday, September 15, at his work station at or about 10
a.m. he was approached by his foreman, Royal Broadway,
who told Smith he had heard a "rumor going around"
about union organizational activity, and further that he
knew that Smith was "for it." Smith testified that he
asserted his freedom of belief and that Broadway retorted:
"Maybe you don't always believe the right way." Up to this
point Smith had not been open as to his union efforts.
Broadway denied the conversation . However , I do not find
Broadway to be a trustworthy witness but in this and in
other areas to be discussed below he was evasive and
contradicted testimony of others of Respondent 's witness-
es, particularly with respect to whether instructions were
given to him by superiors during the election campaign. I
therefore credit the testimony of Smith and conclude that,
since at that point Smith 's activity had not become open
and a subject of common knowledge , the conversation was
inherently coercive inasmuch as it gave the impression that
his private organizing efforts that weekend had been under
surveillance . Federal Pacific Electric Company, 195 NLRB
609, 612 ( 1972). Respondent 's argument that it was
impossible for Broadway to have known about Smith's
efforts and therefore Broadway should be credited on his
denial is not persuasive . Smith visited many homes, and
disclosure of such conduct by various means was obviously
possible.
Smith further testified without contradiction as to a
September 16, 1975 , conversation between himself and
Broadway , in the plant , wherein Broadway disclosed
knowledge of a dispute between other employee supporters
of a union and a restaurant owner. The dispute arose
because of the owner 's reluctance to permit the use of the
Townhouse Restaurant for union solicitation purposes.
The plant was in close proximity to the restaurant. At the
hearing counsel for the General Counsel denied that such
testimony was supportive of an 8 (a)(1) allegation, but in his
brief he now argues that it should be found as the basis for
further finding that Respondent created the impression of
surveillance . Setting aside the question of whether this
matter was fully litigated in light of the General Counsel's
hearing disclaimer , I would not in any event find it to be
the basis of further violative conduct . By that time Smith
had commenced organizing efforts at the plant and in
effect openly announced his sympathies . Also I find that
1 Counsel for the General Counsel argues that Collins' denial of driving the dnver I find that the substance of his testimony is that he did not travel
past the motel that day is insufficient because he was the passenger and not past the motel and as such constitutes an adequate denial
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the "trouble" that occurred in a nearby public restaurant
was undoubtedly a matter of public knowledge in a small
town like Kennett , and not information one would
necessarily acquire through surveillance.
With respect to the last incident of alleged creation of the
impression of surveillance , the testimony is basically not in
dispute. On September 17, Assistant Foreman Cooper
engaged in a conversation in the plant with employee Jerry
Floyd in which Cooper stated: "Hey Bird, I know how
come your Cadillac sets so low in the back." Floyd (whose
nickname is "Redbird" or "Bird")4 asked "How come?"
Cooper explained : "Because it is filled up with union cards
and union booklets." Cooper jokingly suggested that the
Bird ought to get air shocks to support the rear end of his
car. Cooper had no idea whether Floyd had any literature
in the truck and, in fact , he had none . It is argued that this
conversation is coercive because Floyd's organizing activi-
ties were not "open and notorious" at this point in time.
However, Floyd's testimony indicates that he solicited
union support all over town in homes, at the plant, and on
the highways. Furthermore, it was Floyd who participated
in the dispute with the restaurant owner over the use of his
property for organizing activity on September 16. I find,
contrary to the General Counsel, and to use his words, that
Floyd's union activity was "open and notorious" by
September 17. Under these circumstances I cannot find
that Cooper's joking remark tended to create the impres-
sion of surveillance. Cook United Inc., d/b/a Cook's
Discount Store, 208 NLRB 134 (1974), cf. The William
Carter Company, Inc., 225 NLRB 550 (1976).
D. Confinement - Smith
The complaint alleges that, on September 16, Assistant
Foreman Taylor discriminatonly enforced plant rules by
requiring an employee to stay at his work station in order
to prevent employee union activity. (Par. 6G). It is Smith's
uncontroverted testimony that on Tuesday, September 16,
Assistant Foreman Taylor told him to stay on his winding
line and not to move around unless it was "absolutely
necessary"; that "he was watching me," and; "they was
after his ass, for me to stay on my lines and they wouldn't
be after me." Taylor did not explain who was after him or
why. Smith responded to Taylor, "it was fine with me,"
because the net result would be that Smith would not have
to leave to get parts needed for the line. In any event Smith
did leave the line shortly thereafter to get parts. On some of
those occasions Foreman Broadway and Cross merely
asked him where he had been, but apparently there was no
further restriction. Taylor was not called to testify. There is
no argument or evidence that Smith was restricted from
previously enjoyed breaktime, or where he could take his
breaks, or as to toilet privileges. He himself took the
instruction as referring to leaving the line to get parts and
rightly so because his duties normally required him to be
responsible for the flow of work of employees on his line
and to make sure that those employees did not "goof off"
Thus, according to his own testimony his duties otherwise
did not permit him to travel about the plant. Some of those
employees on his line , including Davis, were active umon
supporters . However, he was expected to keep them from
unnecessary conversation even in normal times and, with
respect to Davis who had a proclivity for prolixity, this he
admitted was a demanding task.
The General Counsel relies on Reeves Brothers, Inc.
Eagle & Phenix Division, 207 NLRB 51, 52-53 (1973), in his
argument that the alleged "confinement" of Smith consti-
tuted a violation of Section 8(a)(1) of the Act . However,
that case is distinguishable inasmuch as in that case
employees who had previously enjoyed freedom to leave
their departments to go to the cafeteria, snack bar, or other
departments on their own time were subjected to a threat
of discharge if they did so during a union organizing
campaign . Here one leadman was told not to leave his
work station unless necessary in order to protect his
foreman from unspecified trouble. According to Smith's
testimony the only restriction appeared to be that he was
not to leave to get materials . There was no indication that
this interfered with any previously enjoyed privileges, and,
as a matter of fact , the instruction was disregarded by him
with impunity. Even if we can assume that the objective
was to discourage Davis and others from unnecessary
conversation during the union campaign by way of the
continued presence of the subforeman , it was his ordinary
duty to discourage small talk on worktime at the work
station . I therefore fmd no discrimination exercised either
against Smith or others on the line by Taylor's statement of
September 16, 1976.
E. Discriminatory Enforcement of Plant Rules
Paragraph 61 of the complaint alleges that, on September
18, Assistant Foreman Denniston discriminatorily en-
forced plant rules by telling an employee he was not
working on the job in order to prevent employee union
activity.
This allegation rests on the confinement of employee
Jerry Floyd to his work station , commencing on about
September 18 by Denniston , until after the union election
when he was released by his new foreman , Cooper. Floyd
experienced the same restriction during the 1973 campaign
when he was openly active for the Union. Essentially,
Respondent's defense is that Floyd was a "gad about," who
continually engaged in socializing during his entire em-
ployment. The problem became severe when Floyd,
brought into the plant , according to his own admission, 100
or 200 umon cards stuffed in his pockets to "whip it" on
any employee who got word that he had union cards, and
who requested one. Generalized testimony was adduced by
Manager Lee to the effect that complaints were received
from foremen that Floyd was wandering around and
talking to employees . Respondent contends that it was
justified in confining Floyd because it is not obliged to
finance union organizing efforts by allowing employees to
organize on company time . The problem is that that
argument is twofold . First , the record does not indicate
that Floyd solicited employees during the time when he
should have been working. His testimony that he did not
t Floyd and Cooper actively socialized together and avidly shared stag
movies
EMERSON ELECTRIC COMPANY 1279
solicit for the Union when he should have been working
was never rebutted with any specific testimony. He was a
sample motor builder which necessitated his "running
parts." Secondly, he was a "gad about," and utilized
downtime and time waiting for parts to engage in
conversation. But he always did so, he was only restricted
during the two union organizing campaigns. He talked
about fishing, and socialized between campaigns, but was
never formally reprimanded for it. He even felt free enough
to defer a supervisor's request that he return to his work
station until he had finished a fish tale. I therefore
conclude that Respondent tolerated his downtime socializ-
ing as long as he was not engaged in union campaigning,
and that he was restricted to his work station solely
because of his union activity, which was not demonstrated
to have specifically impinged on his productivity. Thus I
agree with the General Counsel that Floyd was deprived of
a previously enjoyed benefit because of his union activity,
in violation of Section 8(a)(1) of the Act. Reeves Brothers,
Inc., supra. This incident will be further discussed infra, in
relation to Floyd's discharge.
F. Futility of Union Representation
Paragraph 6H of the complaint alleges that on Septem-
ber 17, 1976, Foreman Broadway expressed to employees
the futility of their organizing efforts. This is based on a
conversation between Smith and Foreman Broadway,
alone in the plant, according to Smith at the water
fountain. Neither recalls how it started.
Smith testified at first that something was said about a
union, whereupon Broadway mentioned his 12 years of
experience working in a union shop and that "we wouldn't
have any voice on anything that was said to go on. We
wouldn't have anything to say about our benefits or
anything like that. He also said he had a son working for a
union now and if I didn't believe him I should ask his son,
the only benefits we would have would be paying dues."
On cross-examination he attributed to Broadway the
statement, "that if the Union comes in , you won't have any
more to say about your benefits than you have to say now."
He also conceded that Respondent by various means
routinely solicits the opinion of its employees.
Broadway fleshed out the conversation a bit more. He
recalls the conversation with Smith as the only one present
and told Smith: "I didn't believe the Union would help
much. And he said maybe they could get something done
about the standards and such. I said well, if a union gets in
here, we'll have the engineers to set the standards, I said I
think you got as many privileges as you would have if you
had one, in my opinion, because you can go to the front
office if you want, about anything now."
I find no essential difference between these versions.
Smith testified in generalized and conclusionary terms.
Broadway was more specific as to what was said in the
conversation. The conversation appears to contain two
elements which are confused. First, there is a suggestion
that union representation will not increase the opportunity
for the individual to participate in the union decisions that
affect his working conditions. This I find as mere
theoretical debate relating to whether the Union is a
democratic organization, and best left to the individual
employees' judgment . The second element which emerges
is whether the Union will be effective as a negotiator.
Broadway clearly premised his statement upon his own
experiences in another plant and cited as his final authority
his son who works for another unionized employer! I do
not find under these circumstances an implication in his
statement that Respondent would take an intransigent
position in any future bargaining which would render
representation a futility . The Folger Coffee Company, 188
NLRB 141 ( 1971). I, therefore , do not find this allegation
of the complaint to be meritorious.
G. Reduction of "Clean Up Time"
Paragraph 6J of the complaint alleges that employees
were discriminatorily denied a portion of "clean up time"
in order to deprive them of an opportunity to engage in
union activity.
The uncontroverted, credible testimony of Smith is that
on October 1, 1975, Foreman Taylor announced to Smith a
change with respect to cleanup time for employees on the
four pole , 55 line . Prior to this, the practice was such that
employees were permitted to stop work 15 minutes prior to
shift end , in order to clean up . Actual cleanup time took 10
minutes, and a balance of 5 minutes was left in which they
lined up , waited for the shift to end , during which time they
usually conversed among themselves . Taylor changed the
practice to permit employees only enough time to clean up,
thus eliminating the 5 minutes previously used to line up.
Respondent contends that an employer is justified in
requiring employees to work up to the moment of quitting
and, moreover , there is no evidence of a motivation to
discourage union talk while lined up and waiting to punch
out.
According to Smith , Taylor explained that he changed
the practice "to keep them off my ass." Other employees in
the winding department were not affected . In addition to
Smith , there were two other union activists on that line,
Davis and Jackson . By this time the activities of Smith and
Davis were well known to Respondent . No business reason
was offered by Respondent to explain the conduct . Indeed,
no explanation whatsoever was offered . In the light of
Taylor's other uncontradicted coercive conduct discussed
elsewhere herein with respect to threats, I can only infer
that he acted for the purpose of discouraging union
solicitation by Smith , Davis, and others during downtime
whereas previously they were permitted to talk about any
subject . There being no justifiable business reason for the
new policy , but rather having been initiated to discourage
union activity by eliminating previously enjoyed free time,
I find that the institution of that policy violated Section
8(a)(1) of the Act . Reeves Brothers, Inc., supra.
H. Threats of Discharge
It is the uncontradicted testimony of Smith that, on
October 15, while working on a sample motor stator he and
Assistant Foreman Taylor engaged in a conversation
wherein Taylor stated that Assistant Plant Manager
Charles Hyde had instructed the supervisors to get rid of
union organizers and "pushers," "any way you can," in the
event that the Union "didn't go in," however, Smith
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that "he drawed the line at firing me, that he
wouldn't fire me." Smith testified, again without contradic-
tion, that on November 12, while working on a "blocker,"
Taylor engaged in another conversation wherein he told
Smith that Hyde was going "to force the supervisors to get
rid of the people for the union," because he did not want
"to go through this again and they was tired of going
through this." Taylor, although still employed by Respon-
dent, was not called to testify.
Respondent argues that Smith's testimony is not credible
in view of Hyde's denial that he so instructed supervisors
and inasmuch as Taylor concluded that he would not fire
Smith I find nothing inherently incredible about Smith's
testimony regarding these conversations. It is not within
the realm of impossibility that a foreman might resist
higher authority bent upon an illegal discharge. Further-
more, it does not detract from the coercive nature of the
statement for him to have said that he would resist a
discharge attempt, for it aptly conveys to Smith the peril he
was in because of his union activity. As to Hyde's denial I
find it unnecessary to resolve his credibility at this juncture
because it still does not amount to a denial by Taylor that
Taylor said it. Moreover, Taylor's conduct is essentially
similar to the conduct of Assistant Foreman Doyne Perrish
who, according to Smith's uncontradicted testimony, told
Smith, in the presence of Taylor, on November 7, in the
winding department office that, "well there is some people,
that is going to lose their jobs over the Union this time."
When asked who, Perrish explained: "well myself, Taylor
and a few others," and as he got up to leave said further:
"There is some of the people for the Union that is going to
get fired," adding that he would hate to be without a job
because of the depressed state of the economy. With the
last remark Taylor directed a mordant laugh at Perrish.
In view of the undenied testimony of Smith, and in view
of the lack of any basis for me to discredit the testimony of
Smith as to these conversations, I credit Smiths and
conclude that Respondent clearly violated Section 8(a)(1)
of the Act by the threats of discharge uttered by Taylor on
October 15 and November 12, and Perrish's threat on
November 7, as alleged in paragraphs 6(m) and 6(v) of the
complaint.
Smith testified to an additional alleged threat of
discharge set forth in paragraph 6(n) of the complaint.
According to Smith, on October 15, he walked into the
winding office and came upon Taylor and Broadway
sitting across from one another. At that point Broadway
stated, "we are going to have to get rid of all the pushers."
Smith told Broadway not to threaten him and Broadway
insisted that he was talking about dope pushers. Smith did
not hear what was being discussed before he entered.
Broadway testified that he had reference to a TV
commercial soliciting community efforts regarding resis-
tance to dope pushers. I discredit Broadway, who could
recall no details of the commercial or when it was heard,
and who refused to concede that the term dope pushers
was used in the election campaign in reference to union
solicitors when in fact it had been, particularly in the "Do's
and Don'ts" guidelines distributed by Respondent to all
supervisors in the campaign of 1973 and 1975. Assistant
Foreman Taylor used the same term that same day as seen
above.
As to Broadway's disclaimer to Smith it was so clumsily
contrived that it was not meant to be believed. I conclude
that Broadway intended that his words be construed as a
threat to Smith and other proumon activists, and therefore
was violative of Section 8(a)(1).
1. Threats of Plant Closure
The Speeches
Plant Manager Stack testified that he and Personnel
Manager Collins during the early part of November prior
to the election addressed 30 groups of 30 employees each at
meetings in the plant held during the course of the
workday . Stack testified that he utilized a written speech
and did not deviate from that speech . He also testified that
he spoke twice during the course of the meeting, first at the
beginning and then , after giving Collins an opportunity to
speak , Stack spoke again and closed the meeting, and that
each meeting was conducted without variation . Stack's
written speech was offered into evidence . Although
Respondent indicated on the record that it would offer
Collins ' speech into evidence it did not ultimately do so.
Although about 900 employees were addressed, the
General Counsel only offered 3 witnesses to certain aspects
of comments by Collins and Stack which the General
Counsel argues were embellishments upon the speech. The
General Counsel argues that the speech itself is violative of
Section 8(a)(1) of the Act inasmuch as it conveys to
employees threats of plant closure . Respondent argues that
the speech is privileged under Section 8(c) and merely
constitutes a description to employees of "the economic
facts of life."
In the written speech which Stack delivered , he com-
menced by pointing out "how strongly" Respondent feels
about not having a union at the Kennett , Missouri, plant
stating:
Remember one of the reasons there is a Kennett plant
today is that the union practices and unreasonable
demands in St. Louis made it impossible for Emerson
to continue to build motors there and remain competi-
tive . We don' t want that experience in St. Louis
repeated here in Kennett . It is for this reason that we
feel we must do everything we can to prevent such a
situation here.
During this campaign , some employees have ex-
pressed the feeling that the threat of a union keeps the
company on its toes and this will bring about automatic
increases in wages and benefits . To me - this could be
like trying to keep the fire department on its toes by
setting your home on fire . We do not play games with
your jobs and neither should you . Unions , especially
the Teamsters , do not help-they clearly can hurt the
growth of this plant , and the sooner we can put an end
to these campaigns , the better off we will all be.
5 I credit Smith as to this incident despite his tendency to become
confused as to other disputed incidents Herein he was vivid , detailed,
spontaneous, and straightforward
EMERSON ELECTRIC COMPANY 1281
The context of the comments indicate that after that
remark Collins spoke and then Stack resumed his com-
ments in reference to Collins' remarks about having a
"rough time this year in terms of layoffs." Thereafter,
Stack's comments were in rebuttal to alleged contentions
by "union organizers and pushers" to the effect that a
union can protect against layoffs and obtain job security.
He stated: "Well if there ever was a time when a union in
this plant could hurt job security, it is right now." By way
of explanation he cited a chart showing a decline in
employment level which he contended was the lowest
employment and the highest amount of layoffs since 1969.
He then asserted that a low employment was a factor
throughout the entire industry and stated that many of the
competitors had idled plant capacity; and that they had:
"Plants like ours with employees on layoff and machines
standing idle many hours of the day." He then stated that
the competitors would be eager to absorb all or part of
Respondent's business. He stated that Respondent did not
want to give the competition any edge but that a union in
the plant "especially the Teamsters" would give the
competition a "big edge." He stated that the reason for
growth at the Kennett plant was that the customers were
assured of uninterrupted deliveries and freedom of worry
from an interruption caused by a union strike.
He then referred to a particular customer, Grainger. He
stated that 40 percent of last year's production was
attributed to Grainger's purchases, which meant employ-
ment of at least 320 employees due to that order. He stated
that loss of Grainger's business would affect every
department and job classification. He referred to other
customers including Sears and Rockwell and pointed out
that employees may have noticed during visits of represen-
tatives of those customers that bulletin boards were
stripped of any material in reference to union activity
because: "We do not even want to put a doubt in their
mind about delivery. The mere possibility of having a
union could affect whether they buy from us." He then
pointed out that the mere fact that a plant had been
maintained in Kennett for 16 years "doesn't mean that we
have a lock on the future and future growth." He
continued:
The plant in St. Louis built motors for 40 or 50 years
but it lost its edge. Emerson had to close down its
motor manufacturing in St. Louis to build Kennett and
other outlying plants when the St. Louis operation
could no longer compete. When you hear a union talk
about job security you had better reflect on the real
facts. Now - when everybody is fighting to keep the
business they have and get new business; now - is the
worse time to fall for the union story about unions
creating job security. Some employees might feel that
the loss of customers would not bother them. If they get
laid off they could draw unemployment. That may help
for a while until the unemployment runs out and that
may satisfy some. This is shortsighted because loss of a
business could and probably would be permanent and
unemployment benefits aren't.
The General Counsel offered the testimony of three
witnesses as to comments made by Stack during the course
of the meetings which General Counsel argues are
embellishments to the speech. Thus, Ethel Davis testified
that on or about November 11 she attended a meeting of a
small group of employees but could only recall several
cryptic references by Stack. She did add the additional
element that, according to her, Stack stated: "We moved
one plant out we can always move another one out because
we got the building available at Ava, Missouri, if we have
to use it." She recalls that Collins got up and put pamphlets
on the bulletin board which had some reference to
companies that were unionized and had experienced
strikes. She testified that on November 12 she attended
another meeting where the entire plant was present and
Stack gave the same speech. Again she testified in a very
cryptic and generalized fashion. She testified that another
man got up and made a speech but she couldn't identify
that person. It could not have been Collins because she
remembers and identifies Collins at the November 11
meeting . On cross-examination , Davis acknowledged that
Stack stated : "Remember one of the reasons there isn't a
Kennett plant today is because the Union practices and
unreasonable demands in St. Louis made it impossible for
Emerson to continue to build motors there and remain
competitive." She was further questioned along the lines of
the written speech and acknowledged recollection of some
portions but not others. With respect to her embellishment
regarding Ava she conceded that the only reason she is
certain that is what was said is because she made a note of
the event. She did not have her notes at the hearing. From
my observation of Davis it is clear that her conclusionary,
cryptic recollection of the speech was entirely unreliable
and, furthermore, she had no independent recollection of
the reference to Ava. Sylvia Skaggs testified that she was
present at the meeting with Davis (as was Smith, Reba
McGarity, and many other employees). Skaggs like Davis
testified in a very generalized cryptic fashion recalling that
Stack said that Respondent did not want a union, asked the
employees to look at St. Louis which had been moved, and
that they could "move another [plant] if they wanted to
Ava." McGarity testified as to other matters but was not
questioned as to the speech. Both Skaggs and Davis
conceded that other things were said and that they could
not recall it. Thus, they could not fix within a context the
reference to Ava plant.
Smith testified as to his recollection of what was said at
the November 10 meeting which was attended by Skaggs
and Davis. His account did not contain any reference to
moving the plant to Ava. Although he testified in a very
brief conclusionary fashion he did recall a bit more of the
speech in the prepared written format . He did recall a
reference to the speech than either Skaggs or Davis. His
testimony essentially tracks the Tecumseh motor manufac-
turer wherein Stack stated to the employees that Tecumseh
did not add on its plant because of labor problems and
strikes but rather moved its plant elsewhere . He recalled
the reference to Grainger as set forth in the prepared text.
On cross-examination again he quoted the sections of the
prepared text of the speech given by Stack and recognized
some but stated he did not recall other quotations. He did
not deny the reference to unreasonable demands by a
union in St. Louis making it impossible for St. Louis to
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remain competitive. He did remember the reference to
Emerson closing St. Louis to build at Kennett and closmg
other outlying plants in the St. Louis operation because
they were not competitive. He does not remember the
reference to 1975 as the worst year that Emerson experi-
enced since 1969, but he does concede the excessive
amount of layoffs experienced by Emerson are in fact true.
He recalled the reference to charts during the course of the
speech demonstrating the unemployment of 600 employ-
ees, he recalled reference to the independent Kansas plant
which had only 240 people employed out of 800 capacity,
and he confirmed that Grainger does supply 40 percent of
the business for the Kennett plant. In light of Smith's
testimony I credit the account of Stack that he read
verbatim the speech and did not add embellishments. In
any event I find that the reference to the ability to move the
plant to Ava adds very little to the impact of the statement
given the full context of the statement. A prediction that an
employer makes during an election campaign to the effect
that he will close down the plant may or may not be
coercive depending upon whether it constitutes a predic-
tion of foreseeable events based upon factors not within his
control or whether it is based upon a prediction of what
that employer of his own volition will do in the event a
union succeeds in being designated as collective-bargaining
agent for his employees.
The Supreme Court has stated in N.L.R.B. v. Gissel
Packing Co., Inc., 395 U.S. 575, 618 (1969):
Thus, an employer is free to communicate to his
employees any of his general views about . . . a' partic-
ular union, so long as the communications do not
contain a "threat of reprisal or force or promise of
benefit." He may even make a prediction as to the
precise effects he believes unionization will have on his
company. In such a case, however, the prediction must
be carefully phrased on the basis of objective fact to
convey an employer's belief as to demonstrably
probable consequences beyond his control or to convey
a management decision already amved at to close the
plant in case of unionization. See Textile Workers v.
Darlington Mfg. Co., 380 U.S. 263, 274, n. 20 (1965). If
there is any implication that an employer may or may
not take action solely on his initiative for reasons
unrelated to economic necessities and known only to
him, the statement is no longer a reasonable prediction
based on available facts but a threat of retaliation
based on misrepresentation and coercion, and as such
without the protection of the First Amendment. We
therefore agree with the court below that "[c]onveyance
of the employer's belief even though sincere, that
unionization will or may result in the closing of the
plant is not a statement of fact unless, which is most
improbable, the eventuality of closing is capable of
proof." 397 F.2d 157, 160. As stated elsewhere, an
employer is free only to tell "what he reasonably
believes will be the likely economic consequences of
unionization that are outside of his control," and not
"threats of economic repnsal to be taken solely on his
own volition." N.L.R.B. v. River Togs, Inc., 382 F.2d
198, 202 (C.A. 2, 1967).
An employer, however, may not disguise in terms of
economic predictions a veiled threat of what he will do of
his own volition. Thus, the Board has found that an
employer violated the Act by telling his employees that if
they selected a labor organization to represent them and
thereafter that labor organization made unreasonable
demands which the employer could not afford he would
close his plant. The finding adopted by the Board in that
case was that the employer could neither predict adverse
conditions of his own volition nor could he predict adverse
conditions arising from factors beyond his control if there
were no factual basis demonstrated to support such
prediction. Jimmy-Richard Co. Inc., 210 NLRB 802, 804
(1974). In that case it was noted that there was no support
for the employer 's assumption that unreasonable demands
would be presented, or that demands would be presented
that respondent could not accommodate. Furthermore,
respondent did not indicate what wage demands or other
proposals that it would consider reasonable or what
economic concessions it would make. There was no
evidence of the actual soundness of the employer's business
in that case. It was noted that the employer's statement did
not convey management's decision already reached to
close the plant but contained threats to make that decision
after employees voted in the election , but before collective
bargaimng got started. Finally, it was noted that the
statements were not "careful and honest predictions based
on known facts." It was found that the statements were
actually inconsistent with other statements of the respon-
dent during the campaign to the effect that respondent was
supplying its employees with benefits "equal or superior to
the plants in the area." Thus, the employer therein was
found to be inconsistent in telling employees "at one time
and place that they were as well off, or better off than
employees in union plants and at other times and places
that the union would make unreasonable demands on
Respondent which it could not afford."
In another case the Board adopted a finding that looked
beyond the employer's conditioning of a plant closure on
demands which the employer could not afford and which
would render him noncompetitive to find a veiled threat in
view of the absence of a factual basis for the prediction.
That finding was premised upon the context in which the
prediction was made ; i.e., the existence of rumors of plant
closure, the posting of antiunion newspaper editorials by
the employer, and the capitalization of the employer
therein upon the fears of employees of plant closure by
constant reference to unionized employers that had closed.
It was noted no evidence was adduced in that case to
demonstrate any cause or relationship between the closing
of the unionized employers with the fact that they were
unionized. Marathon LeTourneau Company, Gulf Marine
Division of Marathon Manufacturing Company, 208 NLRB
213,222-223(1974).
In another case the Board adopted a finding that it was a
violation of Section 8(a)(1) of the Act for an employer to
express apprehension that unionization would result in a
loss of customers and layoffs inasmuch as such apprehen-
sion or prediction was not based upon any objective fact.
Therein the employer produced no evidence to show that
its clients would withdraw or had withdrawn business
EMERSON ELECTRIC COMPANY
because of unionization. Hertzka and Knowles, 206 NLRB
191, 194-195 (1973).
In the instant case there is evidence that rumors were
proliferating concerning a possible plant closure. Thus, on
one occasion employee Whimp Mount in the presence of
Jimmy Smith asked Foreman Broadway whether or not the
plant would close in light of these rumors. To the fact that
rumors were circulated add also the fact that, as Stack
stressed in the speech, economic times were "rough." This
was pointedly referred to by Foreman Perrish in the
incident described earlier wherein Pernsh stated to an
employee that he would not want to be out of a job at this
point in time. Thus, it was or should have been apparent to
Respondent that when it addressed the topic of possible
plant closure and layoffs it was approaching an extremely
sensitive area. Sensitivity, however, was completely missing
from Stack's speech which started out on a bald assertion
that Kennett was in existence because of unreasonable
demands of the Union at St. Louis and then stressed that
the slightest possibility of a unionization would cause a
catastrophic loss of business through the cancellation of
orders. With respect to the first assertion there is no
evidence adduced as to the reason why the St. Louis plant
ceased electric motor production. None was offered at the
hearing, and there is no evidence that the employees were
given an explanation as to why St. Louis went out of
business or why the "union practices" and demands in St.
Louis were unreasonable, or why it was impossible for
Emerson to continue to build motors there and remain
competitive. Clearly implicit in this statement is that
Respondent will interpret what is reasonable and what is
not reasonable. Furthermore, the reference to the economic
position of Respondent was related to the motor division
and the statistics cited in the speech were that of
employment levels and capacity. Though it is true that
economic conditions cause layoffs, Respondent adduced
no evidence that the economic state of the division was
such that it was operating at a loss or at a near loss or that
it was not healthy. The union campaign allegations about
corporatewide profits were brushed off in the text of the
speech. Thus, there is no evidence that the Union had at
this embryonic stage suggested unreasonable demands or
that the basic economic condition of the Company was in
jeopardy. With respect to the loss of business from
customers it is obvious that customers demand the ability
to deliver what has been ordered. However, no evidence
was adduced at the hearing nor any factual data advanced
in the speech itself to justify the statement: "The mere
possibility of having a union could affect whether they buy
from us." Therefore, I find that Respondent has engaged in
the brinksmanship described by the Supreme Court in the
Gissel decision and did in fact "overstep and tumble into
the brink" by making conscious overstatements calculated
to mislead employees, in the absence of any demonstrated
objective basis for these predictions.6 I, therefore, conclude
in agreement with the General Counsel that Respondent
has violated Section 8(a)(1) of the Act as alleged in
paragraph 6(t) of the complaint with regard to the conduct
of Plant Manager Stack.
1283
Speech by Collins
Collins did not testify as to what he stated at the
meetings. For that matter neither did Stack but at least
Stack identified the written speech which was offered into
evidence. Collins merely denied statements attributed to
him by witnesses offered by the General Counsel. Employ-
ee Watkins testified that at one of the meetings at which
they were addressed by Stack and Collins during the course
of the Respondent's presentation Collins marked an X in
the "no" block of a diagram of a sample ballot on a
blackboard and stated to the employees: "We urge you to
vote no for the Union," and further stated: "That the plant
could be closed if we voted the Union in and we could go
back to doing anything we could find, chopping cotton,
picking cotton, just anything we could get." Based upon
the relative demeanor of the witnesses and Collins' failure
to testify with respect to specificity as to what he did say I
credit Watkins. However, I find it adds little to the impact
of the speech given by Stack. I have already found Stack's
speech to constitute violative conduct. In and of itself
Collins' alleged reference to chopping cotton I do not find
to be coercive but rather it must be evaluated within the
context of Stack's speech. If Stack's speech were not
coercive but justifiable predictions of economic possibility
the reference to chopping cotton would not convert it to a
coercive statement but would be a rather vivid description
of what actually might happen to employees. However,
since I find Stack's speech coercive I necessarily find that
Collins' embellishment is also coercive since it occurred in
the same context. (Par. 6(o) of the complaint).
With respect to Collins' statements at the November 10
meeting which was attended by Smith only one individual
testified and that was Smith. Skaggs and Davis made no
reference to the substance of what Collins stated. Collins
merely testified that at that meeting he did not threaten
employees with loss of benefits or with plant closure. He
did not deny that he talked about the possible loss of
benefits nor did he deny that he talked about the possible
plant closure. Indeed he did not testify as to what he did
say and it is clear that he did talk at the meeting. Although
Smith was not corroborated by Davis or Skaggs or any of
the other 30 employees that attended the meeting, his
account was detailed, vivid, spontaneous, and self-con-
tained. I therefore credit Smith as opposed to Collins'
generalized conclusionary denials. According to Smith the
meeting was held in the conference room . On the walls
there were posters fixed. One of the posters listed the
benefits that employees enjoyed. Collins verbally reiterated
the benefits listed on the poster. The poster had an
enumeration of union plants and nonunion plants. Only
one of the plants listed was a union plant and that was
located in St. Louis, Missouri. All the plants were in the
Emerson conglomerate. At this point, Stack had already
indicated that there was no production of electric motors at
St. Louis. Other plants were located at Oxford, Indepen-
dence, Ava, Paragould, Rogers, Russellville, and Kennett.
In referring to this chart Collins stated:
6 N L R B v Gissel Packing Co, supra at 618-620
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The union pushers may tell you that you don't lose
any benefits when you go umon , you only add on. The
truth is you do lose some of your benefits because
everything has to be bargained for.
Collins then referred to a poster enumerating a series of
strikes. He asked the employees to recall some of the
strikes. On one of the posters Collins referred to a big
sample ballot and indicated a lack of desire for Teamsters
representation . He then explained the election process and
since there were 906 eligible voters it would take 450 votes
to win . Collins urged the employees to vote and at the same
time took his pencil and went over and marked the sample
ballot with a big X on the "no" side . He then stated that
there were two points he wanted to make "perfectly clear,"
that, when unreasonable demands were made , Emerson
would not be intimidated , nor would they back down; they
could make a decision whether to move or not to move out;
they had a plant in Ava with the machines ready and
waiting to be used at any time . He then proceeded to point
to another poster that had listed the nonunion factories
and the number of employees they could employ at their
fullest capacity , and the number of employees that were
actually employed, and when he reached the Ava plant he
pointed out that Ava could employ 600 persons but that at
the present time no one was employed there . He then
repeated that the machines "was there and if they seen fit
to use them , they could use them anytime they had people
to use them ." Collins went on to refer to the employer's
right to replace strikers and rebutted statements from
"umon pushers" to the effect that employees could not be
replaced . Collins then referred to a posted newspaper
article and photograph dealing with the subject of violence
which occurred on Interstate 44 near Springfield . Employ-
ees attempted to ask questions but were told that this was
not a question-and-answer meeting and that they were
being told "the facts and we should face them ." He then
referred to a photograph of "Tony Pro." Collins stated that
Pro was a gangster and that the Teamsters had intended to
make a union organizer out of him but that he had "been
up for extortion among other things."
For the reasons that I find Stack 's speech to constitute
coercive conduct violative of Section 8(a)(1). I also find
Collins' remark about possible plant closure to be coercive.
Additionally, Collins' remark carries a much clearer
implication that Respondent will be the one to decide what
is reasonable or unreasonable and that Respondent has the
potential and readiness to immediately move its plant out
of Kennett to Ava when it , Respondent , comes to the
conclusion that the Union will be unreasonable . Moreover,
it seems to me , in light of the entire speech given by Stack
and the comments by Collins and statements of supervisors
discussed elsewhere as to the loss of jobs of proumon
employees, that the implication is that the Union will
inevitably demand things which Respondent will construe
as unreasonable. With respect to the statement about loss
of benefits there are many Board decisions which talk
about bargaining from scratch and benefits being negotia-
ble. There are times when an employer may justifiably
indicate to employees that the benefits they presently enjoy
will be subject to the give -and-take of collective bargaining.
Some benefits may be given up in return for others. No
such full explanation was given ' here . It seems that the
implication of the statement, and the context of the entire
speech and conduct by the Respondent , is that when the
employees choose the Union they will automatically lose
benefits prior to negotiation , and that it will be necessary
for them to get back what they had enjoyed prior to the
bargaining process . I, therefore , conclude in agreement
with the General Counsel that the statement that employ-
ees would lose benefits constitutes a threat and is
independently violative of Section 8(a)(1) of the Act. Thus,
I agree that Respondent violated Section 8(a)(1) of the Act
as alleged in paragraphs 6(o), (r), and (s) as alleged in the
complaint.
Threat by Foreman Broadway of Plant Closure
The complaint alleges in paragraph 6(u) that on or about
October 1 , 1975, Foreman Broadway threatened employees
with plant closure. On or about the second Monday in
October Foreman Broadway approached Smith and
employee Whimp Mount in the "lead section ." Mount and
Smith were engaged in a social conversation while Smith
was waiting to get some parts . They had been talking for
several minutes. Broadway walked up and asked them if
they were talking about something they should not be
talking about . Mount responded that he had heard rumors
about the plant closing and asked Broadway about the
rumor that Emerson was going to move the plant to Ava if
the Union got in. Broadway responded that, in his own
opinion , if the Union came in Emerson would move the
plant to Ava . Smith's and Broadway's account are
generally the same except that Broadway testified that he
made no specific reference to the location where the plant
would move and that Mount had asked him generally how
he felt about the Union . Also, Broadway testified that he
conditioned his statement about moving upon whether:
"They started having labor problems and it was uneco-
nomical there . There wouldn 't be any doubt in my mind
that they would move." Although I have found Broadway
to be a generally unreliable witness, Smith's recollection of
this conversation was very generalized and cryptic and was
expanded somewhat upon being refreshed with his affida-
vit upon cross-examination . At first he testified that there
was some conversation about a union and that he did not
recall how it got started . On cross-examination he recalled
that it was Mount who asked Broadway about the rumor of
the plant moving. In view of Smith's lack of certitude and
spontaneity on the witness stand with respect to this
conversation I credit Broadway that he did insert the caveat
into the statement . Respondent argues that this conversa-
tion was not coercive because it was an expression of an
opinion of the foreman conditioned on future economic
contingencies. Despite the fact that Broadway did condi-
tion his statement as his own opinion, I think that it is
clearly tied in with subsequent statements of the Employer
and with other threats of discharge so as to constitute part
of a broad pattern of Respondent in the preelection
campaign to coerce employees in their free choice in the
upcoming election with a message that if they voted for the
Union it was inevitable that the plant would be shut down,
much as the St. Louis plant had shut down electric motor
production and moved to Ava . This thus constituted
EMERSON ELECTRIC COMPANY
coercive conduct in violation of Section 8(a)(1) of the Act.
Cf. Mohawk Bedding Company, 204 NLRB 277, 291 (1973).
Thus, I agree that General Counsel has sustained his
burden of proof with respect to allegation 6(u) of the
complaint (as amended at the hearing).
Threat of Plant Closure by Assistant Foreman
Duane Deniston
On or about November 4 or 5 at or about 2 p.m. during
breaktime employees Jerry Floyd, Danny Pigman, and
several other employees were engaged in conversation
regarding the union campaign. Assistant Foreman Duane
Demston, who was present, was asked by one of the
employees about the Union. According to Deniston at that
point in time there had been a general conversation in
regard to the moving of the plant in the event that the
Union's campaign was successful and he was asked his
opinion. Three witnesses testified as to his response. Floyd
testified that Deniston responded: "Well, in my opinion if
we vote a union in here, Emerson has trucks -there's
rumors going around that they had the trucks at the back
door and they can move this plant to Ava, Missouri."
Demston testified that he conditioned his opinion that the
plant would move if it became uneconomical to run, and in
the eventuality that there were "problems" and "our
customers got to the point where they couldn't depend on
us for deliveries, they would, therefore, find other people
that they could depend on for deliveries; and if we started
losing business and their output of motors started dwin-
dling down, why then, we couldn't economically stay in
business ." He denied making any reference to the availabil-
ity of trucks at the back door or a specific move to Ava.
Pigman was called by the General Counsel to corroborate
Floyd, but essentially his testimony substantiates and
corroborates the testimony of Deniston. Although Pigman
was confused and hazy as to what actually was said he did
testify with certitude on cross-examination that such a bald
statement to move was not made but was rather condi-
tioned upon certain contingencies. I do not find, as
suggested by General Counsel, that Pigman was "easily
confused by Respondent's carefully worded questions,"
with respect to the fact that there was a caveat added to
Demston's opinion of a possible move of the plant.
Furthermore, Floyd's recollection of the conversation was
generalized , inconsistent , and bordered on the conclusion-
ary. He did not give the full context of the conversation and
gave the appearance of lacking certitude when testifying.
Accordingly, I credit the testimony of Demston. However,
even under Deniston's version of the conversation I still
conclude that what was said was coercive under the entire
circumstance of the campaign, particularly in light of
Respondent's speeches and other statements of supervisors
discussed herein whereby the message, although framed in
contingencies, was clearly calculated to convey to the
employees that the removal of the plant was inevitable
because breakdowns in negotiations would be inevitable. 1,
therefore, find that Respondent violated Section 8(a)(1) by
the conduct alleged in paragraph 6(p) of the complaint.
1285
J. The 8(a)(3) Allegations
The Reprimands
On December 10, Jimmy Smith was given a written
reprimand because he made up a wrong identification
stamp which resulted in the stamping of numerous stators,
component parts of electric motors, with incorrect identifi-
cation code numbers. On January 23, 1976, Ethel Davis
was orally reprimanded for the same type of error. The
General Counsel contends that these reprimands were
issued in retaliation for the employees' union activities
which we have seen were well known to Respondent. The
General Counsel argues that they were part of a plan
announced by Taylor to ultimately rid the plant of union
pushers. The General Counsel argues that the restriction to
the work station of Smith , the general 8(a)(1) conduct of
Respondent, and the testimony of Davis and Smith and
others, to the effect that Smith and Davis were closely
watched by supervision and management while they
worked at their work stations , is ample evidence of
hostility. However, the key note of the violation here is the
allegation that Smith and Davis were treated disparately.
Respondent maintains a disciplinary procedure involving
three stages: (1) oral reprimand; (2) oral reprimand with
written recordation in the personnel file (sometimes
referred to as a written reprimand); and (3) written
reprimand with suspension pending discharge . Admittedly
there is no objective criteria to guide the issuance of
reprimands except for the general principle that the second
step and the third step must be based on a repetition of the
same type of misconduct or work deficiency. If the third
step is reached within a 1-year period , the employee is
discharged. If a year lapses from the date of the second step
without any further reprimand for the same type of
deficiency or misconduct the employee's record is ex-
punged.
With respect to Smith his reprimand was a second-stage
offense, the first having issued for justifiable reasons.
Davis's reprimand is argued to be part of a general coverup
plan to make Smith's reprimand look justified. This is
based on Smith's uncontroverted testimony to the effect
that Taylor told her that since Smith had received a
reprimand she was receiving a reprimand for the same
offense. I find her testimony in this regard ambiguous, even
if credited, for Taylor could simply have been pointing out
to her lack of disparity. I do not necessarily consider his
statement to mean anything more than that both she and
Smith had been guilty of a similar offense necessitating a
reprimand.
The General Counsel argues that the evidence "abun-
dantly" establishes that employees had not been repri-
manded for this type of offense in the past. Respondent
adduced generalized testimony that it has always been the
policy in the plant to issue reprimands for this type of
misconduct . However, Ronnie Troutt , foreman of the B
shift winding department in which Smith worked , conced-
ed that not every misstamping may have been reprimanded
in the past . However, shortly before Smith 's reprimand,
identification stamping of stators took on much more
significance than it had in the past . Previously, only a
specific model number was utilized for the particular motor
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being assembled . That is to say, the model number was
directly related to specific customer order . It was not
generic. Thereafter , a generic code number was utilized to
support a newly instituted inventory and stator inter-
changeability program . Under the new program stators
were given a code and stored in inventory . There are
literally thousands of stator types with varying features
such as shaft length , base , end shields , direction of rotation,
etc. A wrong code number could result in nonuse of a
stator on or an installation into the wrong motor type with
a resulting malfunction . In the past , although it was
possible that mismarking could result in improper installa-
tion , it did not generally occur because the entire run was
closely watched . Now a mismarking could not be caught
easily because the stators were drawn from inventory. I
therefore find it of little probative value to resolve
conflicting testimony of whether or not employees were
reprimanded from mismarkmg stators in the past . There is
no evidence to rebut the employer's testimony that the new
program was instituted when it was instituted for justifiable
business reasons.
As to recent experience following the institution of the
new inventory and identification system Smith attempted
to testify to various instances where employees engaged in
similar conduct but were not reprimanded . However, he
was vague as to time , place , and the date and generally
confused and conclusionary. Furthermore he admittedly
based his testimony upon hearsay and not upon personal
knowledge . I find his testimony in this regard worthless.
Davis whom I have already found to be a most unreliable
witness testified that employees on the line next to her used
a wrong stamp and stamped numerous parts incorrectly
with impunity a week prior to the date upon which she was
reprimanded . The General Counsel argues that this
constitutes the "most damaging evidence " of illegal
motivation . However, on cross-examination, Davis conced-
ed that the employees on the next line were not negligent
because someone else was responsible for making up the
stamp which they used , whereas in her case she had before
her two stamps and because of admitted carelessness she
picked up and used the wrong stamp on numerous stators
before it was caught by supervision . In her pretrial affidavit
she testified that the basis of her knowledge was hearsay
based on a conversation with a Ronald Mayberry, a
nonsupervisory employee , who did not work on the next
line. When confronted with her affidavit oncross-examina-
tion she testified that she personally observed these
employees restamping cores, on the same day as her oral
reprimand. She then testified that what had happened a
week earlier was that Mayberry "got an entire order
wrong" but she conceded she had no personal knowledge
of that incident . Her affidavit indicates that there was only
one incident that had occurred involving the girls on the
next line and Mayberry approximately a week before her
reprimand . There is no credible evidence that whatever
happened on the next line was due to negligence or that it
was not caught by the employees themselves before it
became known by supervision . I wholly discredit Davis'
vague , evasive , and inconsistent testimony.
The General Counsel called employee Rogers to testify
to the nonreceipt of reprimands for negligently misstamp-
ing stators . However , Rogers' testimony failed to establish
that under the new program misstamping is not considered
a work deficiency subject to reprimand . Rogers revealed
that his subforeman , Little , took the blame for him when
he misstamped numerous stators, in order to save him from
a suspension which would have been the penalty in his case
for repetitive conduct . Rogers further admitted that, on
another occasion to which he testified that he negligently
stamped stators , he caught his own mistake before
supervision became aware of it and kept that information
to himself. Little was in fact reprimanded for misstamping
stators . The General Counsel called Jack Lance who
testified that he received a reprimand for misstamping a
stator for the first time only after Smith had received a
similar reprimand , whereas in the past he had not received
reprimands for similar conduct . However, on cross-exami-
nation Lance vividly described the acrobatics he performed
on the line in order to prevent mismarked stators from
getting off the line and getting down in the dip and bake
departments , even before the standardization program.
Thus , he made every effort to avoid a foreman finding out
that he had misstamped errors . Thus it was obvious that
employees always recognized the imperative nature of
correct identification of stators even before the identifica-
tion program . The testimony of employees Payne and
Horton adduced by the General Counsel also failed to
establish that supervisors had become aware of their
misstamping of stators . In Payne's situation Smith stayed
after hours to correct the misstamped stators. Horton
corrected his own error and told no one. Implicit in the
testimony of all of these witnesses is that the misstamping
of stators is not a matter to be taken as an exercise in
frivolity, but rather that it is a job function done for a
purpose and which better well be done correctly in the first
place or redone before it is caught . In light therefore of the
testimony of General Counsel 's own witness I cannot
conclude that he has demonstrated that Davis and Smith
were treated disparately by being reprimanded for admit-
tedly negligent work . I therefore do not find that a proof of
a violation of Section 8(a)(3) as alleged in paragraphs 7(b)
and 7(d) has been sustained.
K. The Transfer of Smith
Jimmy Smith commenced employment with Respondent
in September 1963 as a motor assembler and worked in
various positions until he became a subforeman, which
position involved the duties of a leader and instructor of
employees on a particular line. As of November 25, 1975,
he was working as a subforeman on the B shift on the 4-
pole, 55-motor winding line. On November 25, he was
transferred by General Foreman Eddie Cross to the B shift
as a subforeman on the 2-pole and polyphase line at a time
when Respondent was experiencing a resurgence from the
economic recession and had commenced to reactivate that
shift with new employees . Upon notification of transfer
Smith protested to numerous supervisors and managerial
personnel on the grounds that it was , in effect, a move that
would substantially reduce his earnings and would cause a
family hardship. Respondent was adamant and Smith thus
was transferred.
EMERSON ELECTRIC COMPANY 1287
Smith's activities on behalf of the Union go back many
years and were engaged in during five attempts to organize
the Kennett plant. He was active in 1967 and 1968, as well
as in the recent campaign , but was not active during the
1973 campaign . There is no dispute that his recent union
activities were well known and the record clearly establish-
es Respondent knowledge . Furthermore he acted as
observer on behalf of the Union in the recent Board-
conducted election . During the recent campaign , as found
above , he was subjected to coercive interference by
Respondent including threats to eliminate prounion sup-
porters. Respondent argues that insufficient evidence of
union animus exists on which there could be premised an
inference of discriminatory motivation. Respondent points
to a lack of history of discrimination against past union
activists and indeed argues that some have been promoted
after past union campaigns . However , from the finding of
8(a)(1) conduct above , it is clear that Respondent had
reached a point, as it had announced in its speeches and
statements of supervisors to employees, that the time had
come to put an end to future organizing efforts. I conclude
that union animus therefore did exist . With respect to
Smith , whether specific animosity existed to the extent that
he was discriminatorily transferred rests in large part on an
evaluation of that transfer.
There is no question but that some assignment had to be
made to the B shift , that mostly new employees were
assigned to that shift, that after November 1975 it became
a less desirable shift for a subforeman because of the
impact upon his incentive earnings, which were reduced in
turn because of low production of new employees on that
shift . Smith and others testified that 2 -pole and polyphase
motor work is also more difficult because of various
factors, i.e., the winding wire size , the nature of the
machinery , the inherent problems which cause excessive
scrap , and exactitude required in polyphase motor winding.
Respondent attempted, on cross-examination , to establish
that 2-pole and 4-pole motor winding work is essentially
the same type of work and that no real expertise would be
required by an adept subforeman to lead new employees
on 2-pole work . However, Foreman Cross himself conced-
ed on cross-examination that it was easier to train a new
subforeman to work on 4-pole motors than to train him to
work on 2-pole and polyphase motors for the self-same
reasons testified to by General Counsel 's witnesses. I
therefore credit the testimony of General Counsel's
witnesses to the effect that the 2 -pole and polyphase motor
winding work was more demanding. Furthermore, al-
though at the time of Smith 's transfer General Manager
Hyde testified that there was no problem with respect to
inducing employees to bid on a subforeman's job, a critical
problem arose in obtaining additional subforemen for the
B shift (as well as the other shifts) because of the
detrimental impact on the incentive earnings caused by the
increasing number of new employees . Smith lost about
$50-60 a week as a result of the transfer which was
attributed to a decrease in incentive earnings . Attempts to
get employees to bid on subforeman jobs failed. After
Smith 's transfer efforts were made by Respondent to
encourage employees to bid on subforeman jobs. These
efforts failed . Employee Statler testified credibly, and
without contradiction , that Foreman Ronald Troutt of-
fered him a B-shift foreman 's job four times before he
finally accepted . A guaranteed incentive was instituted for
all subforemen for a limited period of time to compensate
for the lack of production of new employees. This was
instituted in February , and Statler therefore accepted a
fourth offer and was added to the B shift as a subforeman.
Smith 's earlier request for some sort of incentive guarantee
was denied at the time of his transfer but he did benefit
under the subsequent institution of guaranteed incentive
for subforemen . Accordingly, it was clear that the transfer
was detrimental to Smith , that he didn 't want it, that he
protested it, but that he was ordered to take it and that he
complied.
Respondent argues that someone had to be transferred
and that for justifiable business reasons Smith , one of seven
A-shift subforeman , was selected . Respondent adduced
credible evidence not effectively rebutted that other
subforemen have also experienced involuntary transfer to
different jobs throughout the history of the plant . Person-
nel Manager Collins testified that employees ' convenience
is, however , given deference if business reasons permit; i.e.,
"all things being equal ." The General Counsel through
Smith 's testimony attempted to prove that seniority always
prevailed in the past involving such transfers and that
Smith at the time of his transfer was not the least senior A-
shift subforeman . Respondent 's contrary testimony is more
credible . Smith testified that in the past the lowest seniority
foreman was always transferred ; however , he could not
specify names, dates , or circumstances . Moreover, he
testified that , when he complained prior to the transfer to
Collins , Collins reminded him that seniority only applies to
subforemen in layoff situations and that he , Smith,
acknowledged to Collins that this was a correct statement
of company policy . Accordingly, there is insufficient
evidence that seniority granted immunity from transfer to
subforeman.
The General Counsel argues that with respect to Smith's
transfer his preference should have been accorded because
business reasons would not have been impeded. In view of
Collins ' stated policy that employee preferences are given
deference, it is necessary to evaluate further the basis for
the forced transfer of Smith . The decision to transfer Smith
was made by Cross , who testified that it was made because:
(1) Smith had performed "a good job in the past" on 2-pole
lines ; (2) Smith had an overall knowledge of the plant; (3)
it was easier to train a new replacement for Smith because
4-pole motors are less complex, more standardized, and
produce less scrap. Therefore, Collins testified that employ-
ee Little was promoted to Smith 's old subforeman job on
the A shift and Smith transferred for these compelling
reasons to the B shift.
Respondent had several options with respect to the filling
of the B-shift subforeman 's job . It could have posted a new
subforeman position opening prior to Smith's transfer and
assigned the new subforeman to the B shift (Hyde testified
that at that time the problem of nonbidding for subfore-
man jobs had not developed); also Respondent could have
transferred another subforeman from the A shift to the B
shift . The testimony of Cross that Smith 's experience was
needed to train new employees is not credible. Smith had
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only 6 weeks of experience on 2-pole motors and that was
acquired many years earlier. Cross' testimony that Smith
had 6 months' experience is only a half-truth. Smith did
have additional experience, not as a 2-pole winder but
rather as an assembler in general assembly in 2-pole
motors. Thus he did not have the experience to facilitate
the training of new employees in the idiosyncrasies
involved in 2-pole motor winding. Furthermore, Cross was
extremely vague and evasive as to the basis of his
conclusion as to Smith's experience. Thus, I conclude that
Respondent effectuated assignments to two men of no or
negligible experience in their respective new positions.
General Counsel argues that others could have been but
were not offered specific promotions to the B-shift position.
Respondent argues that its policy is to post subforeman
positions with no shift designation. The testimony of
Collins, and Cross, that Cross was not authorized to offer a
specific shift subforeman's position to any employee
qualified is not credible in view of Statler's uncontradicted
testimony that Troutt offered him the job on the B shift
four times before he accepted. Moreover, Cross' testimony
was adduced upon redirect examination after he had
testified on cross-examination to several instances where he
offered different individuals specific shift subforeman
positions in the past. Collins testified merely that "he
assumed" that the policy was being followed. It clearly was
policy in name only. Therefore, I am in agreement with the
General Counsel that Respondent could have but did not
offer the B-shift job to others. Specifically it could have as
easily offered it to Little as a new subforeman but it did not
even make the offer. Cross admitted that Little in fact had
experience not exceeding 3 months on 2-pole saw motors.
When Respondent did make the offer Statler refused it,
then instituted the guaranteed incentive which up to that
time was denied to Smith.
Of the six other day shift subforemen, Horton had less
seniority and length of service than Smith, and had been
transferred involuntarily in the past on other assignments.
Horton testified that he would have accepted a transfer to
the B shift. Respondent could have transferred him and put
Little in Horton's job. Horton had worked for 2 years on 2-
pole and polyphase motors. Cross testified that Horton at
the time was working on "complex" 63-motor lines and
that Cross did not want to move him for that reason. No
explication was offered as to the characterization of the
work as complex. However, Horton credibly testified that
there is more difficulty in working the 2-pole 55-lines than
the 63- lines. Horton had not worked on the 4-pole, 55-lines
and could not effectively compare the two although he
estimated that 4-pole, 6-inch winding is less difficult than
the 63-line. However, before Horton worked on the 63-line
he had had experience on the 6-inch motor lines. Little had
had the same experience. Therefore, it would appear that
Little could have coped with the "complexity" of work
Horton had been doing, thus freeing Horton for transfer to
the B shift.
Moreover, employee Crane, who as subforeman had past
experience on the 63- lines, was not offered a job on the A
shift as a subforeman at the time of Smith's transfer. Crane
had turned down a B-shift subforeman job in the past.
Smith testified without contradiction that, on December 8,
Assistant Foreman Langley told him that Respondent had
an opening for another B-shift subforeman and that Crane
would only take an A-shift position. Langley further stated
that it wouldn't be fair to move Horton to the B shift to
give Crane the A-shift job. When Smith questioned hun as
to why it wouldn't be fair in light of Smith's own transfer
Langley stated: "I think I've said enough."
Smith testified that Carol Lewis was a subforeman in
winding and had one 2-pole line and two 4-pole lines under
him. Lewis had less seniority and length of service than
Smith. Lewis was promoted to assistant foreman in
January. He testified but did not contradict that aspect of
Smith's testimony. There is no explanation for his non-
transfer instead of Smith. Respondent argues in its brief
that Lewis was not among the seven subforemen at the
time of transfer. Its basis is an exhibit taken from
Respondent's records listing subforeman in the stator
assembly line. Apparently, he was however a subforeman
on the A shift in the winding section. Collins testified that
the exhibit was restricted to the stator assembly line.
As to other subforemen in the winding department with
more seniority than Smith, Cross testified that Hennenfling
was employed on a 2-pole, 55-hne, but that he was not
transferred because he was needed on the day shift to train
expected increase of new employees on the A-shift.
Inexplicably Cross insisted on cross-examination that
Hennenfling would have needed training for the B shift as
well as Little on the A shift (in the event that Little was
assigned to replace him on the A shift), thus resulting in a
necessity to train two men had he not transferred Smith.
This conclusion is unsupportable by fact. Hennenfling was
intended by Respondent to train new employees on 2-pole
work on the A shift. He would have performed the same
work on the B shift. Quite clearly only Little would have
required training had he been assigned to replace Hennen-
fling on the A shift. Moreover, the preponderance of
testimony clearly establishes that the bulk of new employ-
ees were put on the B shift.
Cross testified that C. B. Anderson was not transferred
from the A shift subforeman job to the B shift subforeman
job because he was employed on a "saw stator" which
involved a "complex" winding. As with regard to the 63-
line there was no explication by Cross as to this generalized
characterization. The other subforeme n were not trans-
ferred, he testified, because they lacked 2-pole experience.
The foregoing analysis reveals that Cross had several
options open to him and that there was no compelling
necessity not to accommodate Smith's request. Smith did
not have that degree of experience to necessitate his
transfer. There is no cogent explanation as to why no
attempt was made to position a new subforeman or a less
senior subforeman or one with more experience on the B
shift. All things being equal, it would appear, according to
Collins' exposition of company policy, an individual
employee's request as to shift assignment is accommo-
dated. However, what was not equal was Smith's union
activity and the animosity of Respondent toward that
activity. Accordingly, in light of Respondent's union
animus and the lack of a credible cogent explanation by
Cross I find that the motivation to transfer Smith was a
desire to retaliate against him because of his union
EMERSON ELECTRIC COMPANY 1289
activities and thus constituted a violation of Section 8(a)(1)
and (3) of the Act.7
L. The Discharge of Jerry Floyd
Jerry Floyd initiated his employment with Respondent at
the Kennett plant on June 6, 1966. He worked his way up
to the position of subforeman in final assembly which he
held until he voluntarily bid downward to a welder's job in
1971. Thereafter he held several positions until he success-
fully bid on a motor auditor's position in the sample motor
department as a sample motor builder in mid-1973. He
held that job until he was discharged on January 8, 1976.
Sample motors are, in essence, prototypes constructed
for potential customers and form the basis for future orders
for electric motors. Obviously, a great deal of care is
required in this effort in order to assure satisfactory
customer response. Prior to 1972 the project was carried on
at Respondent's St. Louis plant. In 1972 the Kennett plant
quality control department assumed the function after an
initial attempt by the Kennett plant production department
met with unsatisfactory results. The sample motor builders
are required to utilize specifications and instruments to
make sure that a satisfactory job is performed. Quality
control auditors review the product of the sample motor
builder and record defects of two types: critical and major.
The former is a defect which is likely to result in the failure
of a motor during the warranty period which is approxi-
mately 25 percent of its expected lifespan, whereas a major
defect might cause such failure during that period of time
but normally would not. Minor defects relate merely to
superficial appearance. Ten demerits are assigned to
critical defects and five demerits are assigned to majors.
Demerits are only a general guide as to the general
performance of the department, and are not used as a
means of discipline for employees. In reviewing the sample
motor builders' work, the auditors record the major and
critical defects attributable to the sample motor builder. A
record of these is kept in the weekly sample motor audit
report which is based on the auditors' individual reports.
Jerry Floyd succeeded Eddie Hill who in turn succeeded
Sherman Burton as the chief sample motor builder. For a
time Floyd worked with Larry Thompson and was also
assisted on a ad hoc basis by others such as Danny Pigman.
Floyd was the prime sample motor builder and particularly
since July 1975 was in effect the only sample motor builder
because of a decline in production due to the business
recession.
A disciplinary system in the plant as described above
follows a three-step reprimand procedure which calls for
suspension and/or discharge upon receipt of the third
reprimand within a period of 12 months from the receipt of
the second-step written reprimand. If more than a year
passes from the receipt of a reprimand the employee's
record is expunged. A second and third reprimand must be
given for the same type of misconduct or poor work
performance. That is to say, a second reprimand for
absenteeism would not justify a reprimand at the third-step
level for conduct such as negligent work.
7 In reaching this conclusion, I place no weight on Fuller's testimony
which I credit that Lewis told him at the time of Lewis's promotion to
supervisor that Smith would have been promoted to supervisor had he "not
Floyd had been active in the 1973 campaign on behalf of
the Union and his activity was known to Respondent. The
record does not support a conclusion that Respondent
engaged in any activity subsequent to the 1973 campaign
for the purpose of retaliating against any proumon
supporters involved in that campaign. Floyd had experi-
enced a history of writeups of critical and major defects
which caused the issuance of reprimands by his supervisor,
Assistant Foreman Jewel Causey. The first as a sample
motor builder was received on May 8, 1974, and a second
on October 4, 1974. These were based on negligent work
inasmuch as Floyd had permitted an excessive number of
major and critical defects to remain in the assembled
sample motor. The weekly sample motor audit report
reflected the issuance of writeups by auditors in support of
the reprimands.
In mid-January 1975, Jerry Hicks succeeded Causey as
quality control assistant foreman. Hicks testified credibly
that Floyd's record of major and critical defects was so
repetitious that he cautioned Floyd as to his oversights in
carelessness. Hicks found it necessary to issue an oral
reprimand to Floyd on April 25, 1975, because of a
negligent failure by Floyd to utilize a correct component.
Personnel Manager Collins advised Hicks that Floyd
should have been issued a third-step reprimand with
appropriate suspension under outstanding company policy.
Quality Control Manager Eddie Lee, who had approved of
the April 25 reprimand, reviewed the matter and decided
that, since Hicks erred, discharge would not have been
appropriate. Instead he personally advised Floyd of the
managerial error and pointed out to Floyd that he was
saved from discharge by virtue of Hick's error but that he,
Floyd, should consider the April 25 reprimand as a second-
step reprimand. Lee, who with Foreman Cooper socialized
with Floyd, shared stag films and "girlie magazines" with
Floyd, testified that he told Floyd that he liked him but
that one more reprimand would mean his discharge and
therefore he suggested to Floyd that he bid out of the
department to avoid discharge.
Floyd in his testimony acknowledged the receipt of
reprimands and the fact that he was advised periodically
by Causey that the incidence of defects in sample motors
was excessive. He conceded that he was informed as to the
three-step disciplinary procedure and warned about the
consequences of negligent work on future customer orders.
Floyd conceded that the auditors, nonsupervisory employ-
ees, warned him to watch his work more closely and
conceded that Hicks orally warned him to improve under
penalty of possible discharge. Auditors Greene and Bryant
testified credibly that they had warned Floyd and that his
defects were the result of simple negligence. No evidence
was adduced to demonstrate that as of April 25, 1975, the
reprimands received by Floyd were unjustified. The
General Counsel argues that company policy did not exist
which compelled discharge upon receipt of a third
reprimand and the General Counsel cites the nondischarge
of employee Manning within I-year receipt of a third
reprimand. Manning was the only other employee dis-
messed around" with the Union. Even if credited, Lewis obviously based
that conclusion on his own speculation prior to becoming a supervisor
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charged because of receipt of a third-step reprimand.
Manning had received various oral reprimands for diverse
deficiencies such as absenteeism , misconduct, etc, After
several of these reprimands he was given an oral reprimand
for "general poor performance," and was discharged upon
receipt of the third reprimand approximately 1 year after
receipt of the second reprimand for "general poor perfor-
mance ." Although there was a discrepancy of several days
beyond the anniversary date of the receipt of the second
reprimand I find that discrepancy insignificant. In any
event Floyd conceded that he was informed of the
company policy with respect to the reprimand procedure.
Floyd in essence conceded that Lee warned him that his
job was in jeopardy and that Lee suggested Floyd bid out
of his department in order to save his job. Thus, Floyd
testified that as of May 1975 he had concluded that his job
was in jeopardy so much so that he spread the word around
and in particular told all the auditors that further writeups
would result in a reprimand which would mean his
discharge. The General Counsel discounts the testimony of
Auditors Greene, Bryant , and Huggins that they engaged
in a voluntary effort to cover up for Floyd by permitting
him to rework his defective assembled motors because, as
General Counsel argues, they also allowed other sample
motor builders to rework defects. However , there was a
difference. According to auditors, and more importantly,
Floyd's own testimony, prior to May only minor defects
were permitted by them to be reworked in the audit booth,
but after May they permitted him to rework major, critical,
and minor defects. Their testimony with respect to minor
defects, as with Floyd's, I find not limited strictly to
superficial appearances but rather to defects which they
considered to be susceptible of easy reworking in the audit
booth. Although Manager Lee testified that he had a list of
motor deficiencies that constituted 200 major and 200
critical defects, no such list was produced at the hearing,
and none of Respondent's witnesses testified to any
enumeration of what exactly constituted a major or critical
defect. Causey testified that there was no such list, the
criteria being the line supervisor's own judgment. Thus, an
entry of "shiny shaft" or "scratch" might appear to
constitute a minor defect but also might be symptomatic of
some other problem with the motor. In any event, it is clear
that after May 1975 Floyd was permitted greater leeway in
reworking his parts. This so called "cover up" persisted
through late summer and the weekly audit reports reflect a
negligible number of writeups for Floyd for that period.
As I have indicated up to May 1975 there was no
probative evidence that Respondent was determined to
retaliate against Floyd for past union activity or that his
reprimands were unjustified. Respondent had experienced
numerous organizing efforts and evidence of past discrimi-
natory treatment of union supporters is absent . Indeed, the
General Counsel does not argue that Respondent was
building a dossier against Floyd prior to the 1975
organizing campaign because of his activity in 1973.
The discharge of Floyd in January must then be
evaluated against a background of work performance
which had been subject to justifiable reprimands and which
brought him nearly to the point of discharge in May 1975.
The election was conducted on November 13, 1975.
Floyd had commenced his widespread organizing activities
in September and those activities thereafter became well
known to Respondent. Floyd was restricted to his work
station as discussed above. Quality Control Manager Lee,
having first denied knowledge of any union activity by
Floyd when he issued instructions restricting Floyd to his
work station in September 1975, testified on cross-exami-
nation with respect to the timing of his instruction:
Look, I can tell you when it was. Anytime a Union
campaign came along Jerry Floyd could not keep his
mind on his job. He would skitter all over the plant,
talking in departments, talking to people and that is
when the complaints would start coming in.
Q. So that is when you restricted him to his
section?
A. Perhaps, along in that time, yes. But not because
of any union campaign, but because of the fact that he
is not there and not building motors for me, he is out
there talking, talking, talking, by his own admission.
Neither Lee nor any other Respondent witness testified
to specific loss of production by Floyd or anyone he talked
to. As found earlier, Floyd's peripatetic antics were
tolerated as long as the Union was not involved. I conclude
that what Lee really feared was that Floyd was proselyting
for the Union, not that he was away from his work area. It
was acceptable for Floyd to arrange stag movies for Lee
and Cooper, to bring "girlie magazines " in on company
time, or talk fishing with various friends but not apparently
to solicit for the Union. In any event there is no evidence
presented that Floyd actually solicited other employees on
time other than downtime. Thus, Respondent was keenly
aware of Floyd's union activities in the 1975 campaign. As
seen above, Respondent in its 8(a)(1) activities appeared to
have reached the point of frustration with union activists.
The question presented here is whether that frustration
engendered sufficient union animus to infer that Floyd was
discharged because of his union activity and not because
he persisted in his negligent work habits.
James Cooper became assistant foreman in quality
control over Floyd in mid-November 1975. (Dwayne
Deniston had succeeded Hicks and was now succeeded by
Cooper). Cooper testified that he had observed a notice-
able lack of writeups by the auditors of Floyd's work
despite defects he had observed in the sample motor
building and the fact that Floyd was called to the motor
audit booth to rework his motors. There was no explana-
tion in the record as to why Deniston and Hicks had failed
to notice the coverup which had become so readily
apparent to Cooper. The period which evidenced the
fewest writeups preceded Cooper's supervision by 2
months. The most effective period of coverup according to
the weekly audit report existed from May 1975 to August
1975 despite a sprinkling of writeups thereafter. It suppos-
edly continued on to Cooper's assumption of authority.
Cooper testified that he went to Lee in mid-December,
having noticed this continuing coverup around the first of
December, and requested that Foreman Carol Haywood,
who was in charge of the auditors, make sure that the
auditors were writing up Floyd. Therefore, Haywood
EMERSON ELECTRIC COMPANY 1291
instructed Greene to write up all of Floyd's defects. Greene
testified that he was told to "call it like I saw it." However,
he admittedly commenced to write up every defect. In the
past all sample motor builders were permitted to make
corrections that were capable of being readily corrected in
the booth. The motor auditors admitted that they did not
write up all of the defects of the other sample motor
builders. However, after and pursuant to Haywood's
instruction , every defect of Floyd was written up. Addi-
tionally, the weekly audit report showed a significant
departure from past practice. Each defect was written up
thereafter even if it were in the same motor. Thus, 4 defects
were found on I motor assembled by Floyd and were
recorded on the December 26 weekly audit report which in
turn necessarily raised the demerit level to 16 per motor for
that report. In prior years more than one defect in the
motor was counted as one major or critical defect. This is
revealed by inspection of the writeups for the following
weekly sample motor audit reports: 5/2/75; 2/14/75;
10/4/74; 10/20/74; 9/6/74; 8/9/74; 7/19/74; 5/24/74;
5/10/74; 5/3/74; 4/9/74; 4/12/74; 3/8/74; 2/24/74;
2/8/74; 12/21/73; 12/14/73; 11/23/73; 9/21/73;
8/17/73; 7/20/73. Lee's contrary testimony that the policy
in this regard did not change is clearly not supported by
Respondent's own documentary evidence. When con-
fronted with several examples upon cross-examination Lee
merely contended that they were errors on the part of
supervisory personnel which redounded to Floyd's benefit.
However, an inspection of the entire weekly audit report
reveals no situation prior to December 1975 where more
than one defect was counted in a motor which had more
than one deficiency.
The effect of this change in policy will be seen as a
material factor in the decision to discharge Floyd. Between
May 2 and July 18, 1975, Floyd received no writeups. On
July 18, 1975, he received two major defect and one major
defect writeup; on August 1, 1975, one critical; August 8,
two majors; August 15, one major; September 19, one
critical; October 3, one major; October 31, one major;
November 7, two majors; November 21, one major;
December 12, three majors (two of which are on one
motor); December 19, one critical and two majors (the two
majors on a single motor); and December 26, four criticals
on one motor and two criticals on two motors.
Floyd's discharge was precipitated by his conduct on
Tuesday, December 29, 1975, wherein because of his
negligence he was responsible for the mutilation of a
component stator for a sample motor he was building. In
attempting to press the stator out of its shell Floyd forgot
to check the hydraulic press to see if it was fitted with a
correct size "ring," and as a result caused the wiring of the
stator to be smashed. Other employees who had access to
the hydraulic press had left a different size ring thereon.
The stator was rendered useless. Cooper caused the
winding department to make a new stator. Assistant
Foreman Broadway testified that Cooper came to him
saying that it was a "hot stator," that was needed that very
evening, so he took it to Foreman Cross. Broadway's
testimony is not clear as to why Cooper could not have
waited until the next morning. It was unusual for a
subforeman to come early and perform such emergency or
corrective work before the shift commences. Cross testified
that Cooper talked to him directly and he, Cross, became
upset and insisted that someone be written up because of
that, but that Cooper stated that "he had the goods on the
man that was working on the sample parts but that his
hands were tied." Cross testified that Cooper did not
explain what he meant by having his "hands tied." Cross
testified that he had to shut down his line of about seven
employees, to reset the machines and run a new stator.
Incentive earnings were lost for an hour's production.
Cross testified he therefore complained to Hyde that his
people were upset. Cross was vague as to the cost of the
stator itself. He testified that he had to run it that afternoon
because: "They were screaming at me for the sample and it
was very important to get sample motors out on time." He
identified Cooper as one of those who screamed at him but
named no others. He could not recall the stator type. When
Cooper testified, however, he stated that Cross came to him
complaining about having to rerun the stator and demand-
ed that Floyd be written up, but he, Cooper, responded
that he felt he wasn't "in a position to do that," having
been Floyd's supervisor for only a short period of time and
that he was aware that another writeup could mean
discharge. Cooper also protested that Lee, his superior, was
on vacation and that he would have to consult with Lee.
Cooper failed to testify as to any urgency or necessity to
have the stator rewound that afternoon. Assistant Plant
Manager Hyde testified that Cross came to him and
complained about having to rewind the stator and that
Cooper told him that his hands were tied. Hyde therefore
spoke to Cooper. Hyde asked Cooper about Floyd's recent
work history and they reviewed his record. The damaged
stator was brought to his office. Plant Manager Stack
happened to come into the office at the time and was
advised as to the situation. According to Hyde, Stack told
him to investigate all the facts before reaching a decision.
Because of the holidays and vacations nothing was done
until the following week.
On Wednesday Hyde called Lee and Cooper to his
office. Collins was also called in as an "advisor." Floyd's
personnel folder was reviewed. At this meeting Cooper and
Lee did not want to take any action against Floyd, but
Hyde testified that he decided that suspension was the
"next logical step." Hyde asked Collins if suspension were
in accord with company policy and Collins responded
affirmatively. Hyde testified that ultimately Cooper and
Lee acquiesced. He testified that Stack was subsequently
advised and he approved of the decision. Stack did not
testify as to his participation in the decision relative to
Floyd's suspension and automatic discharge. Cooper did
not testify as to the events of the January meeting. Hyde
denied that Floyd's union activity was in any way a
motivating factor. Lee testified that he first became aware
of the stator incident upon his return from vacation when:
"Jim Cooper came to me and said that Jerry had messed up
a stator and Eddie Cross wanted to write him up because of
it. Well, I knew that another writeup on Jerry would fire
him. I didn't want to fire him. I told Jim at that time, `I'm
not going to fire somebody for something that happens out
in the shop on occasion.' You know, just messing up a
stator. All right."
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the meeting with Hyde, Lee testified that: "I was
adamant that I would not fire Jerry because of that messed
up stator. Later on after I found out what happened I
would have considered it, but at that time I say I would not
fire a man for that." Lee changed his mind, however, after
someone at the meeting, he could not recall who, asked
him: "What about these weekly audit reports? How can
you let a man that produces 16 percent defective motors
and screws up stators and things like that, how can you
continue to let him work for you?" Lee testified that he
reviewed all the defects by Floyd that were recorded during
December and agreed with the third step which meant, in
effect, discharge, despite the fact that he had gone to the
meeting determined not to discharge Floyd. Despite Lee's
emphasis on the December defects he testified on cross-
examination that Floyd was "deficient all along since he
was a sample motor builder." Also he changed his
characterization of 16 percent defective motors to 16
demerits per motor. In fact the 16 demerits was recorded
only for one weekly audit report, that of December 26,
1975. The goal was .5 per motor. The December 19 report
showed 5 demerits per motor; December 12 revealed .94
demerits; and December 5 revealed no demerits. Prior to
December 1975, the weekly audit reports reveal no level of
demerits comparable to the December level. The weekly
audit report also revealed defects attributed to other
sample motor builders.
It is clear that the surge in December demerits came as a
result of computing each defect on a motor which had not
been the practice in the past. Moreover, Respondent
concedes that demerits had never been a yardstick for the
meting out of discipline. Various supervisory personnel
conceded that there are no objective criteria for writing up
an employee but that the repetitious conduct is the sole
guide. As Cooper conceded it is the subjective evaluation
of the line supervisor which is the final determinant. Lee
characterized the system as one comparable to reprimand-
ing "a kid." Therefore, not every misconduct or work
failure compelled a writeup and that was the attitude that
Lee and Cooper took before they met with Hyde. The
stator incident therefore was of immense significance to
Hyde, who normally does not get involved in the initiation
of reprimands. Cooper, however, who was in charge of
sample motor production as an assistant foreman, did not
testify as to any urgency to get out the sample for which it
was intended. Foreman Cross from the winding depart-
ment was the individual who first attached importance to
it. Lee initially treated a stator mutilation as a common
occurrence throughout the plant. Lee did not testify to any
urgency in getting out the sample which in turn necessi-
tated Cross to shut down his line for an hour instead of
doing what had been done on other occasions in the past;
i.e., arrange to have a subforeman rerun the stator the next
day. Hyde was evasive and inconsistent with respect to the
significance of that stator. He was inconsistent as to who
first notified him. He and Cross were at variance as to what
Cooper told Cross, i.e., Cooper merely saying that he did
not want to cause a discharge whereas Cross and Hyde
testified that Cooper stated that he had the "goods" on
Floyd. Hyde first testified that he did not know the stator
type, but when pressed upon cross-examination he claimed
that it was a unique stator type. Cooper mentioned nothing
in regard to the "uniqueness" of the stator, and Lee at first
treated it as a common occurrence. Lee was in charge of
sample motor building and should have been aware of any
uniqueness and, if not, Cooper most certainly would have
raised it to him at once. Respondent produced the stator at
hearing, and Hyde examined it, but still was unable to give
its type and, while admitting that a folder existed which
would identify it, no such folder was produced at the
hearing. Hyde first denied that the stators were stockpiled
in the plant and then admitted that they were stockpiled.
As was seen with respect to Smith's reprimand, a program
had been instituted by Respondent to enable Respondent
to keep an inventory of interchangeable production stators.
There is no evidence that anyone made an attempt toward
identifying the stator type to ascertain whether it could
have been replaced with the standard production type.
Hyde, after much evasion , conceded that straggler orders
commonly cause winding changeovers, and are sometimes
caused by employee errors. Respondent makes no argu-
ment that the cost of the stator was a consideration in the
decision to write up Floyd. The stator incident is argued to
be evidence of a continuing propensity of Floyd to perform
his work carelessly. However, I conclude that the stator
incident itself appears not to have had the significance
attributed to it by Hyde, Cross, and Lee whom I find to be
most untrustworthy witnesses in light of their inconsistent
testimony described above, as well as my observation of
their demeanor which I found lacked the spontaneity and
straightforwardness inherent in candor. The emphasis by
Lee upon the 16 demerit level per motor is based upon a
clearly contrived sampling. Cooper testified that during the
time he supervised Floyd he cautioned Floyd about such
defects as missing terminal covers and conduit plugs,
scratched wire, and failure to enter a notice on the folder of
defects not attributable to the Kennett operation. How-
ever, Cooper admitted that Floyd's errors were of the same
nature as sample motor builder Pigman and Thompson but
more numerous because Floyd was the chief sample motor
builder. However, when it came to a writeup in December,
even Cooper felt that an insufficient pattern of deficient
performance was established to warrant a writeup for the
mutilation of the stator and, as noted earlier, Lee initially
was of the same opinion.
That Floyd was responsible for defects is clear. I find his
contrary rebuttal testimony on this point vague and
unconvincing. But the question is not whether Floyd was
without fault, nor whether he was the best possible sample
motor builder. The question is rather did Floyd's work
deteriorate so badly in the month of December that his
discharge was caused by such deterioration rather than
Respondent's antipathy to his recent union activity.
Although Lee found him to be deficient since 1973, Floyd
was retained as the chief and, essentially, the only sample
motor builder during the depths of the economic recession.
Because of the coverup of the auditors it is difficult to
make an objective comparison of his work. However, I find
it inconceivable that it took Respondent 8 months to
realize that all defects were not being recorded in a project
so closely controlled and audited if Floyd had persisted in
the same level of negligence. I therefore credit Floyd's
EMERSON ELECTRIC COMPANY
testimony that he made extra effort to improve his work as
a result of Lee's May 1975 warning. Although I credit
testimony of motor auditors of Floyd's braggadocio in
stating that he would not be discharged because his union
activity offered him immunity, I do not find such to
constitute an admission that he would not attempt to
improve his work.
Even though Floyd was given somewhat of a break after
May 1975 by the auditors, to a great extent all sample
motor builders were permitted to rework their motors to
avoid writeups. Since July 1975 Floyd was not only the
prime but essentially the only sample motor builder.
Apparently the added break given to Floyd by the auditors
caused no problems until a couple of weeks after the
election when not only was the coverup suddenly discov-
ered but a more rigid audit instituted than had existed prior
to May 1975. In light of my evaluation of the testimony of
Hyde, Cross, Lee, and Cooper above, I find that the stator
crisis of December 29 was contrived and precipitated and
the degree of Floyd's negligence in the month of December
grossly exaggerated. It is noteworthy that Respondent
could cite in a plant in excess of 1,000 employees for a
period of 5 years when the three-step reprimand was in
effect only one other employee, Manning, who had been
discharged because of the accumulation of three repri-
mands. Personnel Manager Lee, at first, could not even
recall the Manning incident. It is apparent that such
discharge, besides being highly uncommon, is effectuated
for only compelling reasons. The May 1975 decision of Lee
to waive the procedure with respect to Floyd on that
occasion demonstrates Respondent's reluctance to invoke
it. I find that no compelling reason existed to issue the
third-step reprimand and discharge based on negligent
work performed in December. Inasmuch as I do not credit
Respondent's proffered reasons for the discharge, the only
other motivation for discharge lay in Floyd's union
activities. Respondent did not consider any reason for
Floyd's discharge other than his allegedly negligent work.
Thus, his cavalier attitude (of which there is some
evidence), his plant socializing, and the incident of the
coverup were extraneous to the decision reached in the
January meeting between Hyde, Collins, Lee, and Cooper.
They based the decision squarely on the quality of his
work. That basis I find to be pretextuous. Respondent, as I
have found, had become frustrated with periodic union
organizing campaigns. Threats to move the plant and to
retaliate against union supporters were propagated. Jimmy
Smith was transferred as a punitive move shortly after the
election. Former Supervisor Don Copeland credibly
testified that after the election results were made known
Cooper told him that: "It looks like we're going to have to
let Redbird go now." Cooper denied the statement. As a
witness Cooper was evasive and inconsistent. Copeland is
employed elsewhere and exhibited no bias in his attitude or
demeanor, and overall I find him to be the more persuasive
and credible witness. Thus, it is apparent that Floyd's
termination was determined long before the crackdown on
audits, and the December 29 stator incident, and was
related directly to his union activity.
1293
Accordingly, I find that Floyd was reprimanded and
discharged because of his union activities in the 1975
campaign , in violation of Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. Respondent has interfered with, restrained, and
coerced employees in the exercise of rights guaranteed in
Section 7 of the Act, thus violating Section 8(a)(1) of the
Act by coercively creating the impression of surveillance of
employee union activity; by restricting an employee to the
immediate area of his work station for the purpose of
discouraging his union activity; by discnimnatorily enforc-
ing plant rules regarding employee cleanup time in order to
deprive them of an opportunity for union activity; by
threatening employees with discharge if they engaged in
union activities or supported a union; by threatening
employees with plant closure, plant removal, or loss of
benefits if they selected a union as their bargaining
representative.
2. Respondent has discriminated against Jimmy Smith
in regard to his condition of employment by transferring
him to a more onerous position which impacted his wages
in order to discourage union activities and affiliation in
violation of Section 8(a)(1) and (3) of the Act.
3. Respondent has discriminated against Jerry Floyd in
regard to his hire and tenure of employment by reprimand-
ing him and discharging him in order to discourage union
activities and affiliation in violation of Section 8(a)(1) and
(3) of the Act.
4. The unfair labor practices enumerated above are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
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, it will be recommended that Respondent cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It having been found that Respondent discriminatorily
transferred Jimmy Smith to a more onerous position, and
reprimanded and discharged Jerry Floyd, Respondent
shall offer them immediate and full reinstatement to their
former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
and shall make them whole for any loss they may have
suffered by reason of the discrimination against them. Any
backpay found to be due shall be computed in accordance
with the formula set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962), and shall rescind the January 8
reprimand of Jerry Floyd.
"A violation of Section 8(a)(3) goes to the very heart of
the Act." It therefore warrants that Respondent be further
required to cease and desist from infringing in any other
manner upon the rights guaranteed employees by Section 7
of the Act. Pan American Exterminating Co., Inc., 206
NLRB 298, fn. 1 (1973); Entwistle Mfg. Co., 23 NLRB 1058
(1940), enfd. as modified 120 F.2d 532 (C.A. 4, 1941).
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the entire record, the findings of fact,
and the conclusions of law, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDERS
The Respondent, Emerson Electric Company, Kennett,
Missouri, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively creating the impression of surveillance of
employees' union activity.
(b) Restricting employees to the immediate area of their
work stations for the purpose of discouraging their union
activities.
(c) Discrimmatorily enforcing plant rules regarding
employee cleanup time in order to deprive them of an
opportunity for union activity.
(d) Threatening employees with discharge if they engage
in union activities or support a union.
(e) Threatening employees with plant closure or plant
removal, or loss of benefits if they select a union as their
bargaining representative.
(t) Discouraging membership in or activities on behalf of
Local 574, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization, by transferring them to
onerous positions or by reprimanding or discharging or
otherwise discriminating against employees in any manner
with regard to their rates of pay, wages, hours of
employment, hire, tenure of employment, or any term or
condition of their employment.
(g) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist the above-named labor
organization, or any other labor organization, to bargain
collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Jimmy Smith and Jerry Floyd immediate and
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings they may
have suffered by reason of the discrimination against them
in the manner set forth in the section of this Decision
entitled "The Remedy," and expunge from Jerry Floyd's
personnel record the January 8 reprimand.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other documents
necessary and relevant to analyze and compute the amount
of backpay due under this recommended Order.
(c) Post at its Kennett, Missouri, facility copies of the
attached notice marked "Appendix."9 Copies of said
notice, on forms provided by the Regional Director for
Region 14, after being duly signed by Respondent's
authorized representative, shall be posted by it immediately
upon receipt thereof, including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken by the Company to ensure that said notices are
not altered , defaced , or covered by any other material.
(d) Notify said Regional Director , in writing , within 20
days from the date of this Order , what steps Respondent
has taken to comply herewith.
IT Is FURTHER RECOMMENDED that the complaint be
dismissed in all other respects.
8 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
9 In the event the Board 's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board " shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the law and has ordered us to
post this notice telling our employees what we have been
ordered to do and not to do in the future.
WE WILL NOT coercively create the impression of
surveillance of employees' union activity.
WE WILL NOT restrict employees to the immediate
area of their work stations for the purpose of discourag-
ing their union activities.
WE WILL NOT discriminatorily enforce plant rules
regarding employee cleanup time in order to deprive
them of an opportunity for union activity.
WE WILL NOT threaten employees with discharge if
they engage in union activities or support a union.
WE WILL NOT threaten employees with plant closure
or plant removal, or loss of benefits if they select a
union as their bargaining representative.
WE WILL NOT discourage membership in or activities
on behalf of Local 574 , International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, by transfer-
ring them to onerous positions, or by reprimanding or
discharging or otherwise discriminating against em-
ployees in any manner with regard to their rates of pay,
wages , hours of employment, hire, tenure of employ-
ment, or any term or condition of employment.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of their
right to self-organization, to form labor organizations,
to join or assist Local 574, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or any other local organization, to bargain
collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the
EMERSON ELECTRIC COMPANY
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activity.
WE WILL offer Jimmy, Smith and Jerry Floyd
immediate , and full reinstatement to, their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions , without loss of seniority or other
rights or privileges , and WE WILL make them whole for
any loss 'of earnings they may have suffered by reason
1295
of the discrimination against them , and expunge the
January 8 reprimand from the personnel file of Jerry
Floyd.
EMERSON ELECTRIC
COMPANY