Federal-Mogul Corp.

National Labor Relations Board - Board Decisions

Jun 2, 1976

224 N.L.R.B. 325 (N.L.R.B. 1976)

FEDERAL-MOGUL CORPORATION 325
Federal-Mogul Corporation and International Union,
United Automobile , Aerospace & Agricultural Im-
plement Workers of America , UAW Cases 10-CA-
11342, 10-CA-11388, and 10-RC-10230
June 2, 1976
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
Respondent contends that the Administrative Law Judge relied on precn-
tical period conduct to overturn the election of May 30, 1975 We do not
rely on any such conduct in affirming the Administrative Law Judge s rec-
ommendation that the election of May 30 be set aside
The Respondent has requested oral argument This request is hereby de-
nied as the record, the exceptions, and the briefs adequately present the
issues and the positions of the parties
DECISION, ORDER, AND DIRECTION OF
THIRD ELECTION
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On January 2, 1976, Administrative Law Judge
Walter H Maloney, Jr, issued the attached Deci-
sion in this proceeding Thereafter, Respondent filed
exceptions and a supporting brief, and the General
Counsel filed an answering brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings,' findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Federal-Mogul Corpora-
tion, Hamilton, Alabama, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order, except that the attached
notice is substituted for the Administrative Law
Judge's notice
IT IS FURTHER ORDERED that the election held on
May 30, 1975, in Case 10-RC-10230 be set aside,
and that case severed and remanded to the Regional
Director for Region 10 for processing in accordance
with our Decision, Order, and Direction of Third
Election herein, in the following stipulated appropri-
ate unit
i The Respondent contends it is entitled under the Freedom of Informa-
tion Act to have access to all affidavits taken during the election objections
investigation, notes, memoranda, particularly appeals and advice memoran-
da Regional Directors documents authorizing the issuance of complaints
and instructions directing a hearing in these cases On September 12 1975
it requested the Regional Director to produce these materials, which request
was denied on September 23 On October 7 Respondent moved for a con-
tinuance of the October 20 hearing so it could exhaust its rights of appeal
from the denial of its Freedom of Information Act request Notice that the
Regional Director had denied that motion was received by Respondent on
October 14 Respondent's appeal of the Regional Director's denial (of its
information request) to the Acting General Counsel which was pending
during the hearing herein was likewise denied by letter dated November 14
By oral motion, Respondent asked the Administrative Law Judge for a
continuance at the commencement of the hearing on October 20, to pursue
its appeal but said motion was denied by the Administrative Law Judge
Respondent contends that the failure to produce this information deprived
it of due process The Board's Rules and Regulations, Sec 102 117 provides
the procedure whereby the requests for information are to be made Under
that section in the event of an adverse determination by the Regional Direc-
tor an appeal to the General Counsel should be made At the time of the
hearing herein Respondent's appeal of the Regional Director's ruling was
pending before the Acting General Counsel Consequently, we affirm the
ruling of the Administrative Law Judge which was in keeping with the
Board s Rules and Regulations regarding the appeal procedure Further the
Respondent was given access to all affidavits of witnesses who testified in
behalf of the General Counsel in accordance with our normal procedure
Thus even if such affidavits should have been provided at an earlier stage
there is no showing that Respondent was prejudiced by the failure to do so
Case Concrete Co Inc, 220 NLRB 1306 (1975) Gould Inc, 221 NLRB 899
(1975)
2 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule 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
All production and maintenance employees
employed by the Employer at its Hamilton, Ala-
bama, plant, excluding all office clerical employ-
ees, plant clerical employees, technical employ-
ees, quality control technicians, laboratory
technicians, professional employees, guards,
watchmen and supervisors as defined in the Act
[Direction of Third Election and Excelsior foot-
note omitted from publication ]
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Federal-Mogul Corporation is posting this notice to
comply with the provisions of an Order of the Na-
tional Labor Relations Board The Order was issued
after a hearing before an Administrative Law Judge
after which we were found to have violated certain
provisions of the National Labor Relations Act
224 NLRB No 32
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT coercively interrogate employees
concerning their union sympathies and activi-
ties
WE WILL NOT threaten to close the plant or to
lay off employees because they have voted for
union representation
WE WILL NOT promise benefits to employees in
an attempt to persuade them from giving sup-
port to the Union
WE WILL NOT threaten employees with the loss
of existing benefits if they vote for union repre-
sentation
WE WILL NOT engage in surveillance of the
union activities of employees and WE WILL NOT
attempt to create in the minds of employees the
impression that we are engaging in surveillance
of their union activities
WE WILL NOT discriminate against employees
in the hire or tenure of employees in order to
discourage their membership in or support of
International Union, United Automobile Aero-
space & Agricultural Implement Workers of
America, UAW, or any other labor organiza-
tion All our employees are free to join or re-
main members of that Union or any other
union
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of rights guaranteed to them by Section 7 of
the Act These rights include the right to form,
join, or assist labor organizations, to bargain
collectively through representatives of their own
choosing, and to engage in other concerted pro-
tected activities for their mutual aid and protec-
tion
WE WILL offer full and immediate reinstate-
ment to Edsel D Emerson to his former job or,
if it no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority
or other rights he formerly enjoyed, and WE WILL
make whole Edsel D Emerson and Gary Rob-
erts for any loss of pay which they have suffered
by reason of the discrimination found in this
case, with interest thereon at 6 percent per an-
num
The representation election conducted on May 30,
1975, has been set aside and another election will be
held at such time as the Regional Director of the
Board deems appropriate Further notice of the date,
time, and place of said election and the eligibility to
vote in said election will be posted
FEDERAL-MOGUL CORPORATION
DECISION
FINDINGS OF FACT
STATEMENT OF THE CASE
WALTER H MALONEY, JR, Administrative Law Judge
This case came on for hearing before me at Hamilton, Ala-
bama, upon a consolidated complaint,' issued by the Re-
gional Director for Region 10 It alleges that the Respon-
dent Federal-Mogul Corporation 2 committed various
independent violations of Section 8(a)(1) of the Act, and
that it laid off Gary Roberts and discharged Edsel De-
wayde Emerson in reprisal for union activities in violation
of Section 8(a)(3) of the Act The complaint case is consoli-
dated with a representation case in which the Union has
alleged that the Respondent unlawfully interfered with an
election held on May 30, 1975, by various acts and con-
duct, most of which constitute the gravamen of the consoli-
dated complaint issued by the Regional Director 3 The
Umon requests that the election be set aside and that an-
other representation election be directed at the
Respondent's Hamilton, Alabama, plant The Respondent
contends that Roberts was laid off for poor job perfor-
mance and that Emerson was discharged for excessive ab-
senteeism and for failing to present a medical excuse sub-
stantiating the legitimate nature of his absence on March
20 Respondent denies certain allegations of objectionable
conduct and independent violations of Section 8(a)(1) but
i The principal docket entries in the complaint case are as follows
Charge filed by International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW (herein called Union or
UAW) on July 14, 1975, and amended on August 4, 1975, complaint issued
September 3, 1975, Respondent's answer to original complaint filed Sep-
tember 15, 1975, consolidated complaint issued September 24, 1975, answer
to consolidated complaint filed October 2, 1975, hearing held in Hamilton,
Alabama, on October 20, 21, 22, and 23, 1975 briefs filed with me by the
General Counsel, the Charging Party, and the Respondent on December 1
1975 Allegations of objectionable conduct and violations of Sec 8(a)(1)
of the Act based on statements made by Supervisor James Hammitte were
withdrawn at the conclusion of the hearing by the General Counsel and the
Charging Party Therefore, they play no part in these findings and conclu-
sions
2 The Respondent admits, and I find, that it is a corporation authorized to
do business in the State of Alabama It maintains an office and factory in
Hamilton, Alabama, where it manufactures and sells tapered roller bearings
used in the manufacture of automobiles and trucks During the preceding 12
months, a representative period it sold and shipped directly from its Hamil-
ton, Alabama, plant to points and places outside the State of Alabama
merchandise valued in excess of $50,000 Respondent is an employer within
the meaning of Sec 2(2), (6) and (7) of the Act The Union is a labor
organization within the meaning of Sec 2(5) of the Act
The principal docket entries in the representation case are as follows
Representation petition filed by the Union on December 31 1974 seek-
ing an election in a unit composed of Respondent s production and mainte
nance workers at the Hamilton plant, stipulation for certification upon con-
sent election agreement approved by the Regional Director on January 24
1975, representation election held on March 7, 1975, which Union won by
252 to 199 objections to election filed by Respondent on March 17, 1975
report on objections, dated April 17, 1975, sustaining one of the objections
filed and recommending a second election, direction of second election by
Board in absence of appeal by the Union on May 2, 1975, second election
conducted on May 30, 1975, which Union lost by a vote of 200 to 237
union objections to second election filed on June 5, 1975 consolidation of
objections with the complaint case ordered by Regional Director on Sep-
tember 5, 1975
FEDERAL-MOGUL CORPORATION
presented no evidence to support its general denial of other
aspects of 8(a)(1) violations and objectionable conduct
which were alleged Upon these contentions, the issues
herein were drawn 4
A The Objectionable Conduct and Unfair Practices Alleged
1 Background
Respondent is a conglomerate which manufactures and
distributes automobile and truck parts on a worldwide ba-
sis Its corporate headquarters is in Detroit, Michigan Its
so-called bearing group, consisting of four factories which
manufacture automotive bearings, is composed of plants
located at McComb, Illinois, Greensburg, Indiana, Lan-
caster, Pennsylvania, and the plant involved in these cases
which is located at Hamilton, the county seat of Marion
County in northwestern Alabama The McComb and
Hamilton plants are not organized while the Greenburg
and Lancaster plants are For many years the Respondent
manufactured tapered roller bearings in Detroit at its Hart
Avenue and Shoemaker plants It phased out and closed
the Hart Avenue and Shoemaker plants and laid off about
1,900 employees Its Detroit employees had been repre-
sented for a long period of time by the UAW
In 1972, the Respondent began to construct the Hamil-
ton plant Production at that plant started early in 1973 At
Hamilton, Respondent manufactures approximately 450
varieties of 4- to 8-inch tapered roller bearings A number
of management personnel were transferred from Detroit to
Hamilton Respondent also began to hire and to train local
residents to work at the Hamilton facility As Hamilton
and Marion County have a predominately agricultural
background, Respondent found that there was a shortage
of skilled and even semiskilled employees in the locality
from which it could draw a work force, so, in cooperation
with the Alabama Training Center, a vocational training
school located at Hamilton, Respondent began a training
program to teach employees the many skills and intricate
steps involved in the manufacture of bearings By early
1975, the work force at Respondent's plant had grown to
620, including all classifications Recently, Respondent re-
duced its salaried personnel by 5 percent and made a slight
reduction through attrition of its Hamilton production and
maintenance employees
The Hamilton plant involves a large-scale commitment
of capital amounting to an estimated $30 to $50 million
Respondent still considers the Hamilton plant in the start-
up phase of operations In 1973 and 1974, the plant opera-
tion lost a substantial amount of money and is just now
beginning to make a small profit Respondent regards most
of its Hamilton employees as semiskilled and still in the
training phase of their development
Late in 1973, the Machinists (IAM) began an organizing
drive among Respondent's production and maintenance
employees at Hamilton Other unions, namely, the Steel-
workers, the Aluminum Workers, the UAW, joined in At a
four-union election which took place in the spring of 1974,
4 Errors in the transcript have been noted and corrected
327
no union won The UAW continued its efforts to organize
In December 1974, the UAW served a demand for recogni-
tion upon the Respondent, claimed majority status, and
offered to prove it with a card check When this request
proved fruitless, the UAW filed a representation petition
on December 31 and went to one-union election on March
7, 1975 As noted in footnote 3, the UAW won this election
by a vote of 252 to 199, but the election was set aside
because assertedly misleading propaganda was distributed
in the company parking lot the day before the balloting
took place The Union lost the second election, held on
May 30, by a vote of 200 to 237 It is this latter election,
along with certain attendant matters, which are the focal
points of the instant litigation
2 Respondent's campaign-objectional conduct and
violations of Section 8(a)(1)
At both elections in 1975, the UAW put on a spirited
campaign to organize the Respondent's Hamilton employ-
ees, and the Respondent attempted point by point to
counter the UAW's efforts and to resist the organizing ef-
fort by various means at its disposal During the first part
of May 1975, Plant Manager James W McLeod held two
cocktail parties at his home in which he endeavored to
enlist community support behind Federal-Mogul's resis-
tance of the UAW campaign These parties were attended
by a number of local businessmen and community leaders,
including the mayor of Hamilton McLeod took advantage
of the occasions to deliver a prepared text to his assembled
guests He portrayed the UAW's organizing effort as bad
for the Company, its employees, and the community He
recounted the fact that UAW had represented Federal-
Mogul's employees in Detroit for a period of 30 years and
attributed the decision of Federal-Mogul to close those
plants in large measure to the UAW's "series of excessive
wage and benefit demands " The results were a loss to the
Detroit area of 1,900 jobs and a gross payroll of $20 mil-
lion He suggested that other companies, such as Allis-
Chalmers, had the same unhappy experience because of
the UAW McLeod went on to tell his guests that the Re-
spondent was responsible for a $6 3 million payroll in the
Hamilton area, but it was not yet firmly established and it
would take several more years to become so established
He cited current economic conditions as a complicating
factor He further charged that the advent of the UAW
could further complicate the situation and make it even
more difficult to achieve the stability necessary for a long-
term operation He urged the local business men and com-
munity leaders to "speak out, counsel, and explain why in
your opinion the UAW would be bad for the employees,
the Company, and the community " Lists of Respondent's
employees were present at the parties for inspection by the
invited guests, and they were encouraged to call McLeod
or Company Personnel Manager Jerry Meyers, either at
the office or their homes, for further information
McLeod also conducted a series of meetings between
May 19 and 23 among the employees at the plant Some 27
such meetings were held during this period of time in the
Company's conference room Employees were brought in
to the room in groups of 15 to 20 and were given approxi-
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mately the same talk by McLeod who used notes to assist
in his presentation He recited the benefits of remaining
unorganized and the shortcomings of the UAW and its
campaign effort He stated that the Hamilton Plant had
lost money in 1972, 1973, and 1974 and was in a position to
start making a profit for the first time at the beginning of
1975, when the economy slowed down, the plant was dis-
rupted with continued union activity, and customers can-
celed orders He stated that, in March and April, custom-
ers canceled $1,449,419 worth of orders from the Hamilton
plant 5 He also noted that there had been a reduction of
salaried personnel in the office and shop of 5 percent, while
Federal-Mogul plants throughout the United States laid off
1,617 (or 22 percent) of their employees and the Southfield
headquarters reduced its staff by 119 (or 17 percent) He
expressed the hope that layoffs could be avoided at Hamil-
ton, noting that steady paychecks had been a way of life at
the Hamilton plant and that the Company would do ev-
erything it could to keep it that way He recounted the
history of Federal-Mogul, stating that in Detroit it had
been beset with foreign competition and UAW demands,
so in the face of such pressures, its only alternative was
move or get out of the bearing business and it did both it
lost some business and moved the rest to McComb, Illi-
nois, and to Hamilton, Alabama, two union-free plants He
observed that the UAW did nothing to save the jobs of
employees who worked in Detroit and now it is seeking to
get into the Hamilton plant He expressed the opinion that
the presence of the UAW in Hamilton would keep industry
from moving into the locality and stated, "If the UAW had
been here, this plant would not be here " McLeod reiterat-
ed the Company's determination to resist the UAW be-
cause, "if we don't, it will hurt this area from job growth
(sic)-Many people in the past were forced to move away
because of no jobs I sincerely believe your children will be
affected by how you vote on May 30 "
He went on to cite examples of other communities, such
as nearby Russellville, Alabama, where unionization of a
plant had caused community stagnation He called on al-
leged UAW promise of a dollar-an-hour wage increase fan-
tastic and said it would not happen at Hamilton He stated
that Federal-Mogul was going to stay competitive "We
made the mistake once of paying non-competitive wages
and benefits and ended up with closed plants We are com-
mitted to never making the mistake again It is not what
you need I personally think that without the hostile UAW
disrupting this plant you have a better change to move
forward on wages " As an example of asserted UAW ex-
cess, he referred to the status of the Hoover Ball and Bear-
ing plant at Whitmore Lake, Michigan, near Detroit Mc-
Leod had formerly worked for Hoover Ball and Bearing
He stated that because Hoover did not reach agreement
with the UAW, it just announced that it was closing its
plant He also claimed that Allis-Chalmers went out of the
pad-mounted transformer business because they were way
out of line on wages and attributed this situation to the
UAW He noted that Federal-Mogul did not want a layoff,
5 McLeod admitted at the hearing that no customer had ever informed
him that it was canceling an order either because of the UAW or its organiz-
ing campaign
"but if we had to have a layoff, it will be by seniority,"
stating that such a procedure was guaranteed to employees
in writing by the Respondent
In addition to the series of small group talks given by
McLeod in mid-May, he also gave a series of five "25th
Hour" speeches the day before the election to larger assem-
blies of employees in the plant cafeteria I credit employee
Jerry Inmon's statement that, at the speech Inmon attend-
ed, McLeod told employees that, without unionization,
there were no strikes or violence and they had avoided a
layoff at Hamilton even though the economy was bad
Among the many leaflets distributed by the Respondent
during the campaign was a cartoon which was circulated
about March 20 It portrays a union spokesman champi-
oning "UAW's Detroit Model Super Package," including
automotive wages, job assignment clause, and huge bene-
fits, but then cautions employees about "what's behind the
scene9" On the following page are drawings of closed
plants On or about May 26, the Company distributed ad-
ditional campaign literature in the form of a question-and-
answer booklet The booklet was designed to emphasize
the disadvantages of unionism In answering the question,
"How would the Company run the plant if the UAW
wins", the Company replied, "strictly according to the
contract This means that employee problems will not be
dealt with individually, but only through the union you
selected as your SOLE SPOKESMAN For instance, this means
that if the economy is down the Company will lay off em-
ployees strictly by the contract rather than continuing at
full employment as it has over the past few weeks" In
another leaflet, distributed a day or two before the election,
Respondent made additional question-and-answer state-
ments It gave a negative answer to the question, "Can the
UAW guarantee you that Federal-Mogul will keep operat-
ing here if you vote for the UAW9" On May 19, it issued a
leaflet containing similar language to that used by McLeod
in his personal talks with employee groups Among the
statements made in writing was "The economy has slowed
down, this plant has been disrupted with continued union
activity and customers have canceled orders In fact, in
March and April, customers canceled $1,449,419 worth of
orders from the Hamilton plant The present outlook is not
good, but I remain optimistic If we can get this union
business behind us, if our customers gain confidence, and
if the economy recovers, as most think it will, then this
plant can again progress forward In the meantime, I have
reluctantly taken some necessary initial steps There has
been a reduction in salaried personnel (office and shop) of
about 5 percent In an attempt to gain back some business,
there is also a price reduction effective June 1 on most of
our bearings These are modest measures, and I hope se-
vere steps can be avoided "
3 Statements of individual supervisors to employees
There is testimony in the record adduced both by the
General Counsel and the Charging Party to the effect that
various supervisors made statements to employees during
the course of the preelection campaign which constitute
violations of Section 8(a)(1) of the Act or objectionable
conduct A large number of supervisors involved in these
FEDERAL-MOGUL CORPORATION 329
conversations were not called as witnesses to admit, deny,
or explain their statements, and Respondent's declination
to proffer them is not explained 6 Accordingly, statements
attributed to such supervisors by various employees or for-
mer employees who testified in support of the complaint or
objections will be taken as recounted by them
On or about May 21, Foreman Keith D Thomas ap-
proached maintenance mechanic Jerry Inmon as he was
repairing a conveyor and began to speak to him about the
Union and the forthcoming election Thomas asked Inmon
why employees were for the Union and what the Company
had done to turn them against the Company He asked
Inmon what the Union could do for employees generally
and specifically what the Union could do for Inmon as an
individual employee He also asked Inmon if employees
really believed the rumor that the Union would get them a
$1 an hour more in wages Thomas told Inmon that the
Company would close the plant down before it would give
employees a $1-an-hour raise
On the Wednesday before the second election (which
took place on Friday, May 30), Inmon requested a meeting
with General Foreman Roger H Steagall in Steagall's of-
fice The meeting was attended by Steagall, Inmon, Thom-
as, and Harry McCarley, a welder who had been elected
chairman of the union negotiating committee following the
short-lived union victory of March 7 The purpose of the
meeting was to discuss Inmon's longstanding request that
his brother be hired at the plant During the meeting, Stea-
gall asked McCarley and Inmon why they supported the
Union and also asked them what they expected to gain
from a union victory Steagall asked them if he thought
there was going to be a big raise throughout the plant if the
Union won, stating angrily that there was "no damn way"
that such a raise would be granted During the meeting,
either Steagall or Thomas said that he had heard reports to
the effect that an employee, B C Allen, had spoken at a
union gathering, slammed his fist on a table, and stated
that he would close the plant down Inmon's reply was that
Allen was not the Union and that the people would decide
before any strike took place It was also noted that Mc-
Carley, not Allen, had been elected chairman of the com-
mittee and "you didn't see him jumping up and down "
Steagall concluded the meeting by asking the employees to
vote "No "
On the day before the election, Foreman Salvatore
"Sam" Alma approached Inmon as he was working on a
machine and asked him what he expected to gain from
supporting the Union He also asked Inmon what the
Company had done to him to cause him to turn against it
Inmon then asked Alula if he thought that the Company
would really close down the plant if the Union came in and
Alma replied, "Yes, if they had to "
Inmon also overheard a conversation dust before the
election between Foreman James Anglin and employee
6 Supervisory personnel named as witnesses to or perpetrators of objet
tionable or 8(a)(1) conduct and who did not testify are as follows Ernest M
Norton, Leroy A Howard, Jack D Farris, Keith Thomas, Roger H Stea-
gall, Phil Gervais, William H Mixon, Kenneth E Hammitte, Charles Flatt
James Anglin, Salvatore Aluia Jack E Miller Rick Chambliss, and Darrel
Smith
Billy Joe Cantrelle Inmon chimed into the conversation,
which dwelt on the subject of unionization, by telling Ang-
lin that he could not change Cantrelle's mind Anglin said,
"I can try, can't IT" At this point, Anglin asked both Can-
trelle and Inmon what they expect to gam from unioniza-
tion, arguing that wages were good and had improved from
what they were when the employees had first hired in In-
mon replied that the cost of living had also risen, whereup-
on Anglin replied, "Well, things will get better as the union
activity gets out " They asked Anglin if he thought employ-
ees would have gotten raises if an election campaign had
not been in progress, Anglin replied that he could not say
for sure, but "it couldn't hurt any "
On the day before the election, Foreman Phil Gervais
spoke to roll grind operator Billy Lindsay about the Union
while he was operating his machines Gervais said he could
not understand why employees would pay union dues for
something they really did not need Gervais, who had
worked Federal-Mogul in Detroit, further stated that peo-
ple were unemployed in Michigan because Federal-Mogul
had moved its plant He told Lindsay that, if the Union
came in, employees could not take their grievances to their
foreman but would have to let the Union handle it Lind-
say attanded one of the small group meetings which Mc-
Leod held in mid-May At the meeting which Lindsay at-
tended, McLeod stated that unions generally were the
cause of violence and then referred to the Mueller Brass
Company plant at nearby Fulton, Mississippi He stated
that it took a union over a year to get a contract at Mueller
Brass He also stated that strikes and violence were the
reasons why no industry was moving into nearby Russell-
ville, Alabama
Setup man David Harkness attended one of the "25th
Hour" talks given by McLeod to large assemblies of em-
ployees in the company cafeteria At the speech attended
by Harkness, McLeod stated that the Company had made
good progress, with no violence and no layoffs, without the
UAW and he was optimistic that there would be no layoffs
as long as the Company remained free of unions On sever-
al occasions just before the election, Rick Chambliss,
Harkness' foreman, asked him, with reference to the forth-
coming election, whether his "heart was in the right place "
Harkness was wearing UAW buttons on each occasion On
one such occasion, Harkness replied that he knew from the
start what he was going to do
On or about May 19, Personnel Director Jerry Meyers
came up to machine operator James D Norris and asked
him what he thought about the Union Norris replied that
he was undecided, so Meyers asked him if there was any-
one in the community around Hamilton that he could trust
and could talk to Norris replied that there was not because
he lived in the town of Winfield Shortly thereafter, Norris
received a letter from Rankin Fite, an attorney in Hamil-
ton who had represented him in personal matters several
years before Fite told Norris in the letter that he wanted to
speak with him Fite is and has been a prominent political
figure in Marion County He represented that county in the
Alabama legislature for many years and was at one time
Speaker of the Alabama House of Representatives His
firm, Fite, Fite, and Davis, is local counsel for the Respon-
dent and is the registered agent of Federal-Mogul under
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Alabama corporation laws 7 Norris called Fite and
asked him what it was about Fite said that he would prefer
to talk with Norris at his office, so Harris drove from Win-
field to Hamilton to speak with him
The conversation in Fite's office was devoted exclusively
to the question of the organizing campaign at Federal-
Mogul Fite said to Norris that he had heard that he was
pushing the Union at Federal-Mogul Norris replied that
he was not doing so Fite told Norris that two plants, which
would employ about 700 people, were considering a reloca-
tion to the Hamilton area but they would not do so if the
UAW won the election at Federal-Mogul He then asked
Norris to vote no Norris replied that he would vote in the
forthcoming election the same way he did the last time,
and this statement ended the conversation
Norris also attended one of McLeod's preelection
speeches in the cafeteria I credit Norris' testimony that, at
the speech which he attended, McLeod stated that he was
optimistic that there would be no layoffs if the plant stayed
nonunion
Machine operator Harris W Walker attended one of the
27 meetings which McLeod held in the conference room
with groups of employees in mid-May I credit Walker's
testimony to the effect that, at the meeting he attended,
McLeod said that the reason Federal-Mogul moved out of
Detroit was that the Union placed such heavy economic
demands on it that the Company could not remain com-
petitive and that, if the Union was in at Hamilton, custom-
ers would cancel orders at that plant McLeod also stated
that plants were refusing to move into Russellville because
of unionization which took place there Walker challenged
McLeod's statement, asking McLeod how, if customers re-
fused to buy from unionized plants, they could stay in
business McLeod simply stated that, if a union was voted
in and the plant went on strike, customers would have to
look elsewhere for supplies McLeod also mentioned the
check stubs of Allis-Chalmers employees which the Union
had distributed before the first election and which formed
the basis upon which the first election was set aside He
stated that the employees whose stubs were distributed
were on layoff, although he declined, upon request, to dis-
close the names of the employees in question McLeod sug-
gested to Walker that he ask the UAW organizer the iden-
tity of the Allis-Chalmers employee in question
On March 7, the day of the first election, former employ-
ee Ricky I Palmer, a known union sympathizer, was asked
by his foreman, Ernest T Norton, if he had changed his
mind about the way he was going to vote Norton then
asked Palmer if there was anything he could do to change
Palmer's mind About 2 weeks before the second election,
Norton approached Palmer at his work station and asked
him how he thought he would be better off with a union
Palmer simply replied that he thought he would be better
off
7 Rankin Fite's partner and nephew, Arthur Fite actively handles legal
matters for Federal-Mogul, although Rankin Fite himself does not do so
On the basis of the above-mentioned considerations and on the basis of the
Respondents effort to enlist the business community in general (though not
the Fite firm in particular) to assist it in resisting the UAW drive I find that
Rankin Fite was and is a nonsupervisory agent of the Respondent
At a Wednesday evening meeting in the Heat Treat De-
partment, which is often held in order to schedule Saturday
work, Plant Metallurgist Fayette "Pat" Bellew spoke with
11 or 12 employees who worked on second shift about the
general economic standing of the Company and of that
department This meeting took place shortly before the
election I credit Palmer's statement that, at the meeting in
question, Bellew told employees that if the Union won, the
Company would probably have to lay off some employees,
but if the Union lost it would try in every way possible to
avoid doing so
On the midnight shift just preceding the May 30 election,
Cone Department Supervisor Darrell Smith came up to the
third-shift maintenance man Walter E Walker and asked
Walker if he thought that the plant needed a union Walker
said that he thought it did, so they began to argue the pros
and cons of unionization On this same shift, about 2 30
a in , Foreman Leroy Howard asked Walker to come into
the company office to speak with him They proceeded to a
small office or conference room adjacent to the main office
where they sat and talked behind closed doors for 10 or 15
minutes Howard went over the provisions of the union
contract with the Mueller Brass Company at Fulton, Mis-
sissippi, and told Walker that the Mueller Brass employees
had lost more than they had gained He then asked Walker
what he thought that Federal-Mogul employees would gain
by unionization Walker replied that he did not know be-
cause they did not have a contract as yet He also asked
Walker if he thought there would be a strike Walker re-
plied that he did not know Walker noticed that Howard
was bringing other night-shift employees into the same of-
fice during this shift He had never had a conversation with
a supervisor in this office before, as it was the normal prac-
tice of foremen to discuss matters with employees at their
work station
Hugh R Edgar also worked on the 11 p in -7 30 a in
shift About 2 30 a in on the morning of May 30, his fore-
man, Jack Farris, came to him at his work station and
asked him to accompany him to the office because he
wanted to show him something Edgar had never been in
that office before except for his initial employment inter-
view with Company Personnel Relations Supervisor Nor-
man Holloway During a 20-minute interview, Farris
showed him the Mueller Brass contract and compared ben-
efits at Mueller Brass under the contract with those at Fed-
eral-Mogul During this discussion, Farris told Edgar that,
if the Union won the election which was scheduled to be-
gin that morning, it would cause the plant to close Farris
then asked Edgar to vote for the Company
On the day before the election, William Mixon, foreman
in the Heat Treat Department, approached employees Ellie
Jane Eads and Ida Vickory and asked them why they were
displaying union buttons This was the first day on which
either of these women had done so Mixon went on to ask
them what the Union could do for them that the Company
could not, and inquired as to why these two women were
mad at the Company Mrs Eads explained to him the na-
ture of their grievance relative to being bumped from one
job to another Mixon, who was a supervisor in another
department, asked them if they would like to work for him
in Quality Control They replied that they would not On
FEDERAL-MOGUL CORPORATION
the same day, Supervisors Jack Miller and "Pat" Bellew
approached Mrs Eads and Mrs Vickory and repeated the
question as to why they were wearing union buttons They
repeated their dissatisfaction with the working of the com-
pany seniority system Later General Foreman Kenneth E
Hammitte asked them why they were not wearing "I care"
buttons, an insignia distributed by foremen and worn by
some employees who opposed the unionization of the
plant
Shortly before the election, Supervisor Charlie Flatt ap-
proached machine operator Lowell Gann and noted the
presence of a "Vote Yes" pencil clip on Gann's pocket He
asked Gann what the "Vote Yes" clip meant and Gann
told him it meant he was going to try to do everything he
could do to help the Union Flatt then asked him how this
would help him, to which Gann replied that he did not
know but that it certainly could not do him any harm
4 The 3-day layoff of Gary H Roberts on July 24
Gary H Roberts has worked for Federal-Mogul for 2-
1/2 years He is a setup man on the first shift in the Auto-
matics Department and works for Foreman Samuel L
Bowlby About five setup men and eight machine opera-
tors man the automatic screw machines in this department
on first shift These machines turn out the cones or cups
which contain the tapered bearings As a setup man, Rob-
erts is assigned to set up, or prepare the screw machines for
operation This is a lengthy process and involves making
various adjustments which must be made in order to pro-
duce cups or cones tailored to the specifications of a partic-
ular order Roberts and other setup men act as trouble-
shooters for the less skilled machine operators When setup
men are not occupied with setting up a particular machine,
they "float" from machine to machine to see if they can be
of assistance to the operators There are about 30 screw
machines in the Automatics Department On any given
day, about 20 are in operation The others are either dead-
lined for repairs or are in the process of being set up for a
new order
Setup men receive their assignments each morning from
Bowlby It is customary for any operator who may require
the assistance of a setup man for a short period of time to
request help directly from the nearest available man Setup
men have been instructed to render such assistance when-
ever possible, since the productivity of the department de-
pends directly on the smooth functioning of the machines
under the control of the operator If the interruption of a
setup assignment to assist an operator is to extend over an
lengthy period of time, clearance for the interruption is
normally requested from Bowlby It is often a question of
judgment as to whether the difficulty in the functioning of
a screw machine is properly the task for a setup man, or
whether the problem is serious enough to require the ser-
vices of a more skilled maintenance man from the Mainte-
nance Department
Roberts was a union activist He signed a union card,
solicited cards from other employees at the plant, and wore
a union button to work About a week before the second
election took place, Bowlby spoke to Roberts while making
the rounds of the machines under his supervision and
331
asked him what the Union could do for him that the Com-
pany could not He went on to try to enlist Roberts' sym-
pathies for the Company's position, although he admits
knowing that Roberts was a strong union supporter
After the Union filed its objections to the conduct of the
second election, Board Agent Donald E Howard, the Resi-
dent Officer of the Birmingham Office, made an investiga-
tion of the objections In the course of his investigation, he
interviewed Roberts on July 1 During this discussion, they
apparently talked about the question of whether the pen-
dency of the objections should stand as a bar to a compa-
nywide wage increase which was in the offing Shortly
thereafter, at a periodic meeting of department employees,
a discussion took place with Bowlby concerning whether
the Company would be giving a raise which had been con-
templated Bowlby stated that he did not know if the Com-
pany could grant such a raise because of the pendency of
the objections Roberts spoke up to say that he had asked
Howard about this problem when Howard was interview-
ing him and had been assured that the investigation of the
objections would not prevent the Company from granting
a wage increase
Shortly thereafter, on July 10, Roberts was summoned to
the office of General Foreman Douglas Todd and there
was engaged in a lengthy discussion with Todd and Bowl-
by of his asserted job deficiencies In addition to regular
personnel files maintained by the Respondent in its Per-
sonnel Department, Bowlby keeps a file of written memo-
randa or "joggers" in his desk in the plant on a majority of
the employees under his supervision He stated that most
of the entries in his files are adverse reflections on his em-
ployees' performance There is evidence that other foremen
under Todd's supervision maintain similar files Under the
practice extant on or before July 10, individual employees
did not know, except possibly by chance, if written memo-
randa were being placed in these informal files by Bowlby
At this interview, Roberts was shown a summarized list of
12 entries relating to job deficiencies which had found their
way into Bowlby's file This list was outlined on a one-page
memo, dated July 10 The items listed thereon ranged from
Roberts' taking an extended coffeebreak to threatening in-
subordination to a generic category called "poor perfor-
mance " Most entries were simply labeled "poor perfor-
mance " The item relating to overextending a coffeebreak
took place on January 20, 1975 The other 11 deficiencies
occurred between May 8 and July 10 One of the entries-
for loitering-was made on the day of the July 10 inter-
view
The July 10 memorandum, addressed by Todd to Per-
sonnel Director Jerry Meyers, also contained the notation
Subject has been counseled by his supervisor re-
garding each of the above His reactions have general-
ly been negative Because there has been no improve-
ment in subject's work habits as a result of the
above-listed counsehngs, I am going to talk to subject
today and tell him he must make significant improve-
ments in his work habits by 7-24-75 (two weeks) or I
will have no recourse except to terminate him
The memo was signed both by Todd and Bowlby Todd
asked Roberts to sign the memorandum at the bottom but
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he refused, saying that he had not been counseled on each
of the occasions mentioned Roberts asked to see the origi-
nal memos in Bowlby's file from which this list had been
prepared, saying that he wanted them for his lawyer Todd
declined to grant the request, saying that there was no need
for a lawyer and all that Roberts had to do to save his job
was to improve his job performance
Respondent distributes to employees a personnel guide
or "blue book" to assist them in learning about its policies
and procedures The "blue book" does not outline in detail
any formalized procedures for handling questions of disci-
pline and discharge, noting only that the Company nor-
mally gives warnings for a first offense except when serious
matters are involved While Respondent's witnesses gave
assurances that there were and are consistent and regularly
followed disciplinary and discharge procedures, such pro-
cedures are not written and amount, for the most part, to
the ad hoc determinations on any related question by Per-
sonnel Director Meyers 8 We are told that discipline for
poor performance by an employee-as distinguished from
absenteeism-was, on July 10, governed by a three-step
procedure leading to discharge The first step was an oral
warning, the second step, a written warning, and the third
step, termination With respect to discipline for absentee-
ism, there was an additional step, namely, a 3-day suspen-
sion between written warning and discharge Both from the
testimony of Respondent's witnesses and from the lan-
guage of the July 10 memo, there is no question but that, as
of July 10, the written warning memo sent to Meyers was
regarded by management as the predicate for a possible
discharge of Roberts 2 weeks thereafter
In the 2 weeks which elapsed between July 10 and 24,
Bowlby "wrote up" Roberts six times in 10 workdays The
writeups were often couched in argumentative terms A
summary is as follows
1 July 14-Roberts took an entire 8-hour shift to
put three spindles on a shaft on Machine #19 when
6 hours was enough to place all four on the shaft
2 July 15-Roberts spent 10 minutes (from 9 20 to
9 30) in the snackbar
3 July 15-Saw Roberts talking to employee Harry
McCarley
4 July 18-Roberts arrived at work and punched
in before 7 a in starting time of day shift but did not
get assignment until 7 04 a in, as per custom in de-
partment, and is regarded as tardy
5 July 19-Lengthy discussion about Roberts fail-
ure to start on set-up Machine #10 Was working on
Machine # 13 In effect, he failed to comply with
Bowlby's instructions
6 July 24-Roberts seen talking with employee
Don Strickland away from Machine #19 he was
working on Later in the day Roberts was seen talking
7 minutes with groundkeeper Watson McRae
Bowlby admits that, because Roberts was under threat of
discharge during these 2 weeks, he did not personally call
6 Roberts testified mistakenly that the `blue book" contained provisions
for a four-step disciplinary procedure The book in question is in evidence
and contains no such procedure
any of these derelictions to Roberts' attention, since Rob-
erts knew what he should have been doing
On July 24, Roberts was summoned to Meyers' office,
where he met with Bowlby, Todd, and Meyers Between
July 10 and 24, Meyers had determined to insert a new
procedural step in the process for disciplining employees
for poor job performance, thereby bringing it into con-
formity with the four-step procedure which he had used in
discharging Edsel Emerson for absenteeism (see infra) In-
stead of terminating Roberts on July 24, Meyers gave him
a 3-day suspension without pay Respondent's witnesses
testified that when Roberts returned to work after the sus-
pension his job performance was such that, to date, the
Company has had no further cause to give him writeups or
impose disciplinary action Roberts states that his job per-
formance after July 29 was no different than what it was
before his suspension
5 The discharge of Edsel Dewayde Emerson on
March 25, 1975
Like Roberts, Edsel D Emerson was a setup man in the
Automatics Department on the first shift and worked un-
der Foreman Samuel D Bowlby Unlike Roberts, Emerson
had no record of poor performance on the job, however,
the Respondent had often voiced its serious objection to
his failure from time to time to be on the job Emerson
started to work for Federal-Mogul in February 1973 and
went through a training course established by the Respon-
dent at the Alabama Training Center When the IAM be-
gan an organizing drive which led to the multiunion elec-
tion in the spring of 1974, Emerson supported the IAM
and his support was made known to the Respondent by
that Union During the UAW campaign which led to the
March 7 election, Roberts signed a card, engaged in leaf-
letting at the plant gate, and wore a UAW button Howev-
er, Respondent's witnesses Bowlby and Todd both testified
that Emerson was relatively quiet and inactive during the
UAW effort until a week or two before the election, when,
as Bowlby put it, "he got real verbal " Todd also noticed a
similar change of heart by Emerson just before the March
7 election
Emerson had a conversation with General Foreman
Douglas Todd at Todd's desk just after the first shift quit-
ting time The conversation took place a few days before
the March 7 election As Emerson was getting ready to
leave the plant, Todd asked him if he had changed his
mind about the Union Emerson replied that he had not
and that he was 100 percent for the Union Todd suggested
that he reconsider his position and asked him why he sup-
ported the Union Emerson stated that he was doing so in
order to improve his lot in life and that of his family,
whereupon Todd stated that if he continued on along the
road he was following, his actions would affect his job and
his future On the following day, Emerson was speaking to
Bowlby as Bowlby was checking the operation of the ma-
chines in the Automatics Department He asked Bowlby,
"What are we going to talk about after the election9"
Bowlby replied, "Not anything, because you are not going
to be here " v Bowlby also asked Emerson if there was any-
9 1 credit Emerson s testimony on this point
FEDERAL-MOGUL CORPORATION
thing that Bowlby could do to change his mind concerning
the forthcoming election
On another occasion just before the election, Bowlby
spotted Emerson walking toward the toolcrib Emerson
was carrying a signed union membership card in his shirt
pocket which he hadjust obtained from another employee
Bowlby reached into Edwards' shirt pocket, pulled out the
card, and read it Emerson objected to Bowlby's action and
told him that the matters contained on the card were confi-
dential On another occasion, Emerson had placed a piece
of union literature in his toolbox and had left the box in an
open position near the machine he was working on The
literature in question was a card on which a large red spot
was printed It bore the legend, "If all the statements the
Co put out were true you could blow on this red dot
and it would turn blue " 10 Bowlby reached into the tool-
box, pulled the card out, and set it on fire with a cigarette
lighter, saying "This is what I think of your card "
Emerson had a record of considerable absenteeism In
the spring of 1974, Bowlby spoke to Emerson about it and
warned him that his attendance would have to improve In
June 1974, the Respondent sent Emerson a letter of repri-
mand noting the same deficiency Emerson had unexcused
absences throughout the summer of 1974 and specifically
on August 26 and September 10 and 21 During the sum-
mer months Emerson also had a number of excused ab-
sences which were occasioned by domestic difficulties
which he was experiencing at the time On Monday, Sep-
tember 23, Emerson met Bowlby in the company parking
lot on the way into the plant He asked Bowlby if he could
have 3 days off to take care of a domestic problem Bowlby
said he would see what he could do about it Later in the
day, Emerson was told to go to Meyers' office Meyers
informed Emerson that he would have 3 days off but it
would be a disciplinary suspension because of poor atten-
dance Emerson said that he did not want the time off if it
was to be awarded in this fashion Meyers told Emerson he
was getting it in the form of a disciplinary layoff whether
he wanted it or not As a result, Emerson was off on Sep-
tember 24, 25, and 26
During the ensuing 6 months, Emerson missed addition-
al time On Bowlby's records, these absences were recorded
as follows
September 30
October 28
November 9
December 26, 27, 28
January I1
January 27, 28, 29
February 10, 11, 12
February 25
February 27
March 20
unexcused
excused
unexcused
unexcused
anexcused
excused (sick-had tooth
pulled)
doctor's excuse
(sore throat)
excused
unexcused
In addition to these absences, Emerson missed time on
various days which caused him to work less than a normal
10I rejected Resp Exh 5-J at the hearing That ruling is hereby reversed
and the document is admitted into evidence
333
8-hour shift It was Emerson's March 20 absence which
laid the groundwork for his removal
On Wednesday, March 19, the personnel office received
a phone call to the effect that Emerson's 8-year-old son
was sick at school Emerson was requested by school au-
thorities to pick him up and take him home After getting
the message, Emerson asked Todd for time off to respond
to the call and Todd honored the request Emerson was
absent from the plant about an hour on this errand and
then returned to finish his shift
On Thursday, March 20, Emerson stayed home all day
His wife was ill with a sore throat and a fever, so Emerson
took care of her and also their sick son The Emersons also
have a 5-year-old daughter I credit Emerson's statement
that he phoned the Respondent's personnel office in the
middle of the morning and informed Jean Fortner, the
clerical employee who normally receives such calls, that he
would be out that day The Emersons originally believed
that their son had the measles When his condition did not
improve, he was taken to a Dr Kirk in Hamilton the fol-
lowing week and was found to have scarlet fever
Emerson returned to work on Friday After he reported
in, Bowlby asked Emerson where he was on the previous
day After Emerson recounted the problem with his sick
son, Bowlby was disposed to let the matter drop However,
later that day, Todd came to Emerson, and in Bowlby's
presence, asked Emerson why he missed work on Thurs-
day Emerson said he was out because his son was sick
They asked him what doctor he used for his son Emerson
replied that he used a doctor in Amory, Mississippi, and a
doctor in Hamilton Just before the end of the shift, Emer-
son was told to report to Meyers' office When reported to
Meyers' office, Bowlby and Todd were also there Meyers
asked him why he was absent on Thursday Emerson re-
plied that his son was sick Meyers asked him if he had a
statement from a physician showing why it would be neces-
sary for him to miss work in order to care for him Emer-
son said he did not Meyers told him it would be necessary
for him to get such a statement or he would be terminated
Emerson replied that he did not have such a statement nor
could he obtain one because in fact he did not take his son
to see a doctor the preceding day Meyers said he would
have to have such a statement by 3 30 p in on the follow-
ing Monday or he would be fired II
Respondent's witnesses testified that Emerson told them
on Friday that he had in fact taken his son to an unnamed
and unremembered physician in Amory, Mississippi, on
Thursday and had to drive him there because the tires on
his car were poor and he was reluctant to allow his wife to
drive a car in that condition There is no question in this
record that Emerson's son was sick and that he did not
take him to a physician in Amory or anywhere else on
Thursday Staying out of work to care for a sick wife and
child is certainly a legitimate excuse for an absence, and
Respondent's witnesses so admitted Emerson had no rea-
son to fabricate an alternative story for his supervisors I
credit Emerson's account to the effect that he informed
11 Respondents witnesses differ among themselves as to whether Meyers
told Emerson on this occasion that he was suspended pending receipt of a
doctor s excuse Accordingly I credit Emerson s version to the effect that he
was not in fact placed on suspension by Meyers on Friday afternoon
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Todd, Bowlby, and Meyers that he was home all day on
Thursday for the reason indicated
When Emerson reported to work the following Monday
at 7 a in, his timecard was missing from the rack Bowlby
met him and told him that he would have to wait in the
cafeteria until the personnel office opened at 8 am When
Personnel Relations Supervisor Norman Holloway arrived,
he asked Emerson if he had a doctor's excuse for missing
work the preceding Thursday Emerson said he had no
such excuse Holloway told Emerson that Meyers had or-
dered him not to let Emerson go back to work without an
excuse Holloway then told Emerson that he was suspend-
ed and ordered him to leave the plant Emerson did so and
did not return
B Analysis and Conclusions
1 Threats of reprisal
The Board and the courts are frequently called upon to
review campaign literature in order to determine whether
particular statements contained therein are protected ele-
ments of employer free speech and fair comment, or
whether they amount to coercive attempts to dissuade em-
ployees from voting for union representation In drawing
these often fine and tenuous Imes, we find guidance in the
Supreme Court's celebrated Gissel case 12 and in Chief Jus-
tin Warren's often-cited delineation between permissible
and prohibited electioneering
[An employer] may make a prediction as to the pre-
cise effect 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 prob-
able consequences beyond his control or to convey a
management decision already arrived at to close the
plant in case of unionization If there is any im-
plication that an employer may or may not take action
solely on his own 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
In this case, we are confronted by numerous statements
by the Respondent regarding the status and prospects of a
large factory which is still in the startup phase of opera-
tions During the first 3 years of its existence, the Hamilton
plant lost money but continued to expand its work force
from zero to more than 600 persons In 1975, the year of
the current campaign by the UAW, this plant has just be-
gun to make money for its owners, although more than
$1 4 million of anticipated orders had been canceled De-
spite the fact that 1975 marked the first year in which the
Respondent's Hamilton plant was not in the red, the Re-
spondent, both in writing and in statements by its General
Manager and its lower ranking supervisors, began to dis-
cuss with employees the subjects of plant closing and lay-
12 N L R B v G,ssel Packing Co, Inc, 395 U S 575, 618 (1969)
offs, a prospect totally at odds with the fact that the Re-
spondent had finally achieved profitability in Hamilton af-
ter almost 3 years of losing money Moreover, statements
during the campaign by Plant Manager McLeod linked
unionization with cancellation of orders by customers in a
cause-and-effect relationship, a claim which was chal-
lenged on the spot during a discussion of the subject by
one of McLeod's employees and which he admitted during
his testimony in this case has no basis in fact The Respon-
dent has no definite plans to close the Hamilton plant and
no specific plans for layoff of rank-and-file personnel, so
any suggestions to employees along these lines , tying these
prospects to the UAW's organizational campaign, were
neither precise, demonstrably probable, nor founded on
the basis of objective fact As such, they fail to comply with
the Gissel guideline for a proper prediction of conse-
quences in the face of unionization
Thus, it is clear that various written and oral statements
of the Respondent made shortly before the May 30 elec-
tion fall flatly into the category of threats of impending
retaliation against Hamilton employees should they select
the UAW as their bargaining agent The context of oral
descriptions and pictorial representations by the Respon-
dent describing the UAW's asserted history as a bargaining
agent leaves no prudent doubt as to a cause-and-effect re-
lationship which it wished to implant in the minds of voters
between unionization and dire results which would follow
therefrom at the hand of the Respondent McLeod told
community and business leaders at a meeting in his home
that Federal-Mogul had closed its Detroit plants largely
because of the UAW, and it is clear that he desired that
this message be spread by his guests to his employees He
also told them that it would be difficult for the Hamilton
plant to achieve stability necessary for a long-term opera-
tion in the event of a UAW victory, a statement leaving the
clear implication that the Respondent would do in Hamil-
ton what it did in Detroit if its plant became organized
McLeod's statement to employees during the course of his
small group conference in mid-May falsely linked cancella-
tion of customer orders (and hence layoffs) to uni oniza-
tion It was coupled with a further statement showing the
disposition of the Respondent to avoid layoffs, even in the
face of an economic pinch, in a nonunion plant but a cor-
responding indifference to the question of economic lay-
offs when dealing with unionized employees
McLeod's statement at the 25th-hour talk attended by
Harkness-that there would be no layoffs as long as the
plant remained nonunion-leaves nothing to the imagina-
tion and is clearly coercive The same holds true for Mc-
Leod's statement at the gathering attended by Norris, and
the statement made by Farris to Edgar on the morning of
the election when he urged Edgar to vote "no " The net
effect of these statements was to convey a threat of reprisal
for unionization McLeod's further statement that "if the
UAW had been there, this plant would not be here," taken
together with other statements relating to the UAW's role
in allegedly forcing Federal-Mogul and Hoover Ball and
Bearing out of the Detroit area, unmistakably convey the
thought that if the UAW gets in here, Federal-Mogul will
not be here Such a statement is likewise beyond the pale of
permissible electioneering The same rationale applies to
FEDERAL-MOGUL CORPORATION 335
his statement concerning why Allis-Chalmers went out of
the pad-mounted transformer business
The Respondent also conveyed a threat of reprisal in a
preelection leaflet portraying closed plants resulting from
support of UAW activities The thought contained on this
leaflet must be considered together with other messages
being conveyed by Respondent's principal spokesmen dur-
ing this same period of time This martfully coded message
is simply that the Respondent would close the plant in
Hamilton if the Union won The same rationale applies to
the Respondent's question-and-answer booklet, which
states that with a union an economic pinch would bring
about a layoff according to seniority, while the absence of
a union would, as in the weeks before the election, prompt
the employer to follow a policy of no layoffs at all It also
applies to a question gratuitously asked and answered
through a company pamphlet, namely, that the UAW
could not guarantee that Federal-Mogul would keep oper-
ating at Hamilton The implication involved in such a
question is that a UAW victory would leave the continued
operation of the plant shrouded in doubt The fact that the
Respondent avoided stating this threat categorically in no
way detracts from the message it intended to convey and
what in fact it gave its employees to understand The state-
ment was unambiguous, points to no demonstrably proba-
ble consequences beyond the employer's control, and, tak-
en together with other remarks made by McLeod during
the same period, leaves economic necessity as merely one
factor to be weighed by this employer in reaching a deci-
sion to close its plant
Why layoffs in other Federal-Mogul plants had any
bearing on actual or possible decisions relating to the
Hamilton plant has never been explained The introduc-
tion of this subject into the campaign at a point in time
when the Hamilton plant was just beginning to achieve
profitability indicates a desire to use layoffs elsewhere as an
intimidating device rather than an elucidation of rationally
based and factually founded economic factors bearing
upon the choice at hand in Hamilton Accordingly, I con-
clude that such remarks by Farris and McLeod and the
literature referred to above constitute violations of Section
8(a)(1) of the Act As these expressions of company policy
and intention emanated from the highest company authori-
ties in Hamilton and were circulated throughout the bar-
gaining unit in speeches and literature, such statements
were clearly objectionable to the conduct of a fair and free
election and obviously affected the results thereof General
Electric Corporation, 215 NLRB 520 (1974)
I do not believe that Thomas' statement to Inmon that
the Company would close the plant down before it would
give employees a $1-an-hour raise is a threat of reprisal for
supporting the Union's organizational drive There is no
solid proof that a $1-an-hour raise was or is an element of
the UAW's campaign platform or that the UAW had any
intention of making such a demand The statement is not
only one of opinion on the part of Thomas but is an opin-
ion directed to a highly remote and conjectural bargaining
impasse wholly unrelated to the consequences which might
ensue from selecting the UAW as a bargaining representa-
tive The thrust of Thomas' statement, as well as Steagall's
statement on this point to Inmon and McCarley, is that
such a bargaining demand was wholly impractical and not
susceptible of fulfillment
The credited version of Bell's statement to Palmer and
the Heat Treat Department employees that the Depart-
ment was overstaffed and that a union victory would result
in a layoff but, if the Union lost, the Company would try in
every way possible to avoid such a layoff, is a clear expres-
sion by a lower ranking supervisor of what McLeod was
trying to say in somewhat more cloudy fashion As such, it
is a violation of Section 8(a)(1) of the Act and is objection-
able to the conduct at a fair and free election
The day before the election, Aluia told Inmon, in re-
sponse to Inmon's question, that the Company would close
the plant down if they had to if the Union came in I con-
clude that this statement was coercive, and a violation of
Section 8(a)(1) of the Act It is also objectionable conduct
Bowlby's statement to Emerson just before the election
of March 7-that Emerson would not be around after the
election to discuss union-related matters with Bowlby-not
only bears upon the propriety of the March 24 discharge
but also constitutes a promise of reprisal, in violation of
Section 8(a)(l) of the Act As such, it amounts to objec-
tionable conduct
2 Coercive interrogation
The record is replete with instances of interrogation by
company officials and supervisors inquiring into the union
sentiments and activities of a large number of bargaining
unit employees Respondent seeks to excuse these interro-
gations on the basis that they were casual in nature or that,
because of the context in which they occurred, the ques-
tions did not sufficiently probe into the psyches of the
questioned employees to be coercive in nature Neither
point is well taken
There was nothing casual about the questioning of
Respondent's employees by its supervisors Respondent's
management met at frequent intervals during the last
weeks of the campaign before the May 30 election to plan
strategy and to assess its position A recurring subject at
these meetings was an evaluation of union strength in the
various departments of the plant On occasion the names
of union-oriented employees were brought up and dis-
cussed Such information could come into the
Respondent's possession only by repeated and systematic
questioning of employees throughout the plant, and this is
just what occurred Questions posed to individual employ-
ees and recounted in this record were merely part and par-
cel of an overall effort designed to further the
Respondent's campaign strategy They were not casual,
offhand, or isolated discussions by company foremen with
old friends who happened to be working for them More-
over, such discussions took place against a background,
outlined above, in which a barrage of coercive propaganda,
both oral and written, flooded in on bargaining unit em-
ployees urging them to reject the UAW Furthermore, a
question frequently asked-what I can do or say to change
your mind-is more than a mere request for information It
amounts to a solicitation of grievances and carries with it a
hint that the Respondent was willing and able to trade off
some unstated quid pro quo in exchange for a "no" vote
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, I find that the following interrogations
constitute a violation of Section 8(a)(1) and are objection-
able conduct affecting the result of the election
a Thomas' questions to Inmon as to why employees
were for the Union, what the Company had done to turn
employees against it, and what the Union could do for
employees in general and Inmon in particular
b Stegall's question to McCarley, in Inmon's presence,
as to why employees supported the Union, and what they
expected to gain from a union victory
c Aluia's question to Inmon as to what he expected to
gain from supporting the Union and what the Company
had done to turn him against it
d Anglin's question to Inmon and Cantrelle as to what
they expected to gain from unionization
e Chambhss' repeated questions to Harkness, who was
wearing a union button, if his heart was in the right place
The questions were hardly designed to elicit an informa-
tional reply Since they were asked repeatedly during a
short period of time preceding the election, I conclude that,
by virtue of the repetition, they amounted to a form of
coercion
f Meyers' quesion to Norris as to what he thought
about the Union
g Norton's question to Palmer, a known union sym-
pathizer, if he had changed his mind about the way he was
going to vote and if there was anything that Norton could
do to change Palmer's mind
h Norton's question on another occasion to Palmer as
to how he now felt about the Union and how he thought he
would be better off with a union
i Mixon's statement to Eads and Vickory as to why they
were displaying union buttons, what the Union could do
for them the Company could not, and why these employees
were "mad" at the Company
J Questions by Miller and Bellew to Eads and Vickory
as to why they were wearing union buttons
k Kenneth Hammitte's question to Eads and Vickory as
to why they were not wearing "I care" buttons, an anti-
union insignia distributed by the Respondent to employ-
ees
1 Flatt's question to Gann as to what the "Vote Yes"
pencil clip on Gann's pocket meant, and how supporting
the Union would be beneficial to Gann
in Bowlby's question to Roberts as to what the Union
could do for him that the Company could not
n Todd's question to Emerson dust before the March 7
election if he had changed his mind about the Union and
why he supported the Union
o Darrell Smith's question to Walker during a late night
interview on the subject of the Union in company confer-
ence room as to whether he thought there would be a
strike
3 Surveillance, creating the impression of surveillance,
and miscellaneous interference with Section 7 rights
At the meeting with Steagall and Thomas which Inmon
requested, the ostensible subject of the discussion was
Inmon's request that his brother be hired However, the
discussion moved on to questions of unionization, in the
course of which Steagall mentioned to Inmon and his asso-
ciate, McCarley, that he had heard reports about what an-
other employee, B C Allen, had said or done at a union
meeting Specifically, Steagall mentioned hearing report
that Allen said he would close the plant down and had
banged his fist on a table for emphasis Inmon was called
upon to disavow what Allen had said or done Such state-
ments on Steagall's part conveyed to McCarley and Inmon
that the discussions which took place at union meetings
were under surveillance by the Company By thus creating
the impression of surveillance of union activities, the Re-
spondent herein violated Section 8(a)(1) of the Act and
engaged in objectionable conduct
On another occasion, Bowlby reached into Emerson's
toolbox, which was Emerson's private property, removed a
piece of union literature from the box, and burned it in
Emerson's presence, all the while expressing his disdain for
the Union Such action constitutes interference with pro-
tected activity, namely, the private possession by an em-
ployee of union literature, and as such violates Section
8(a)(1) of the Act These acts and conduct by Respondent's
agents also interfered with the holding of a fair and free
election
4 Promises of benefits and threats of loss of benefits
In addition to the threats recounted above on the part of
various company officials to lay off employees or to close
the plant, the Respondent herein engaged in other activi-
ties which amounted to an invasion of Section 7 rights As
such, they also amount to objectionable conduct They are
a The dissemination of a piece of campaign literature in
which the Company stated that, if the Union won, the
Union would become an employee's sole spokesman in
grievance matters and, in effect, that an employee would
lose the right to present his grievance directly to manage-
ment representatives This is a misstatement of law and is
also a threat on the part of the Respondent to discontinue
an existing benefit in the event of a union election victory
As such, it violates Section 8(a)(1) of the Act and is objec-
tionable conduct General Electric Company (Wiring De-
vices), 182 NLRB 876 (1970)
b McLeod's statement to employees during his small
group conferences in mid-May that, without the hostile
UAW disrupting this plant, "you have a better chance to
move forward on wages "
c Anglin's statement to Inmon and Cantrelle in the con-
text of a discussion of wage increases that things "will get
better as the union activity gets out "
d Gervais' statement to Lindsay that if the Union came
in employees could no longer take their grievances directly
to their foremen but would have to let the Union handle it
5 Objectionable conduct
In addition to the evidence presented by the General
Counsel in support of the complaint, the Charging Party
introduced additional testimony to support its objections
to the conduct of the election and its request that the May
30 election be set aside These incidents include an effort
on the part of the Respondent to enlist community leaders
FEDERAL-MOGUL CORPORATION
to assist it in resisting the UAW's organizing drive and an
interview between local political leader Rankin Fite and
unit employee Norris, in which Fite urged Harris to vote
"no " They also include other interviews recited above in
the discussion on unfair labor practices In light of the
findings and conclusions directed to other matters relating
to the Respondent's preelection conduct, as well as the dis-
cussion set forth infra concerning the discharge of Edsel
Emerson, it is unnecessary to determine whether these inci-
dents also constitute conduct which would warrant the set-
ting aside of the May 30 election, so I decline to pass upon
them
6 The discharge of Edsel Emerson
The legality of the discharge of Edsel Emerson on March
24 must be evaluated in the light of Respondent's proffered
reason that Emerson was discharged for chronic absentee-
ism and for his failure to produce documentation in the
form of a doctor's excuse which would justify his absence
from work on March 20 There can be little doubt of
Emerson's record of absenteeism, a record which reaches
back to the commencement of his employment with Feder-
al-Mogul For this admitted deficiency, he had already un-
dergone the first three steps in the Respondent's ad hoc
disciplinary procedure-oral warning, written warning,
and a 3-day suspension late in September 1975 After re-
ceiving a third-step suspension called for by the discipli-
nary system, Emerson was absent from his employment on
some 16 additional days Seven of these absences were
unexcused, nine were excused In light of Emerson's record
of continuing absenteeism, even in the face of previous
disciplinary action, the question arises as to why the Re-
spondent continued to tolerate such behavior in the fash-
ion indicated for a period of 6 months after his suspension,
if in fact absenteeism was the motivating cause of
Emerson's removal 13
Emerson was a known union adherent, dating from the
drive for union representation commenced by the IAM late
in 1973 According to Respondent's witnesses, Emerson
support for union causes waned in the fall and winter of
1974-75 until just before the March 7 election when once
again he began to "get verbal" on behalf of union represen-
tation In the course of a brief discussion of unionism
which took place just before the first 1975 election, Bowlby
let Emerson know in clear and menacing terms that he
would not be around for long after the election This omen
in and of itself served to indicate that, whatever cause for
discharge the Respondent might hereafter advance, it
would be pretextual since Respondent had already made
up its mind to get rid of Emerson even before the events
relied on to justify its action actually took place
Emerson's absence on March 20 was the event which the
Respondent seized upon to rid itself of a longtime union
adherent who had recently "gotten verbal " On the previ-
ous day, Emerson's son had taken sick at school The Re-
spondent knew this illness to be a fact, since it was the
13 Respondent contends that, in determining what constitutes chronic ab-
senteeism as a factor warranting discipline, it includes in this evaluation
both excused and unexcused absences
337
Respondent who first informed Emerson of the occurrence
and had given him permission to leave the plant in order to
take the boy home Respondent's management also had no
reason to doubt that the younger Emerson remained ill and
admitted as much at the hearing It also admitted that
missing work to care for a sick child is a legitimate reason
for an employee's absence and one which would normally
be honored Indeed, Respondent does not claim that it was
Emerson's absence to attend to a member of his family
which prompted the decision to fire him Rather it was
Emerson's inability to substantiate his absence by a
doctor's excuse which sealed his fate
Respondent does not have a regular or inflexible rule or
practice of requiring the presentation of written medical
excuses before it will deem an absence for illness to be
excused In the case of short absences by employees with
good attendance records, Respondent will simply take the
employee's word that he was too sick to report for work In
Emerson's case, the Respondent has looked with greater
scrutiny at his reasons for missing work and normally was
more stringent in requiring him to produce written excuses
because of his propensity toward absenteeism However,
Respondent was willing to look the other way on Septem-
ber 30, November 9, December 26, 27, and 28, and January
11 when Emerson failed to produce a justifiable reason to
excuse his absence However, on March 20, Respondent
was not so disposed, despite the lack of prudent doubt on
its part that Emerson's son was in fact sick on this occa-
sion
According to credited testimony, Emerson was unable to
produce a doctor's excuse for his March 20 absence be-
cause in fact he had not taken his son to see a doctor and
this is what he told Meyers In the face of Meyers' demand
on March 21 that he produce a medical excuse or be fired,
Emerson's only alternative was to purchase a phony excuse
from a physician, not an unheard of practice at the
Respondent's plant but one which could serve no purpose
in satisfying the Respondent as to the bona fide nature of
Emerson's absence At the same time, the election of this
fradulent alternative could only compound Emerson's pre-
dicament, in light of his admission to Meyers and others
that he had not in fact taken his son to see a doctor on the
day he missed work Any medical excuse proffered after
such an admission would clearly be fictitious and would be
ample reason for discharge under any circumstances In
demanding such a document from Emerson as the predi-
cate for his retention, the Respondent was demanding
what Emerson could not legitimately or honorably pro-
duce Accordingly, Respondent's insistence in this regard
simply confirmed the pretextual nature of the whole series
of events surrounding Emerson's termination
In short, the Emerson discharge presents a case in which
a strongly animated antiunion employer tolerated the ab-
senteeism of a known union adherent so long as he re-
mained relatively inactive, because when he did show up
for work Emerson turned in a creditable performance in
the semiskilled position of setup man at a factory where
skilled employees are still in relatively short supply How-
ever, once Emerson's views propelled him toward more vo-
cal and vigorous union support, the Respondent de-
termined to remove him on the next occasion that his
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
major shortcoming, absenteeism, provided it with an op-
portunity and a cover story Accordingly, I find that, by
discharging Edsel Dewayde Emerson on March 24, the Re-
spondent herein violated Section 8(a)(3) of the Act, and
also engaged in objectionable conduct which affected the
result of the May 30 election
7 The suspension of Gary Roberts
In the context of employment at the Hamilton plant,
Gary Roberts was a relatively long term employee, having
worked for the Respondent for 2-1/2 years His suspension
on July 24 for a period of 3 working days was effected for
poor job performance, an amorphous term which covered
a host of asserted shortcomings ranging from overstaying a
coffeebreak to failing to remove a cleaning agent from the
floor around a machine 14 During the first 2 years of his
employment, Roberts was the subject of only one unfavor-
able notation in his foreman's informal personnel file, an
entry indicating that on January 20 he had overstayed a
coffeebreak In the slightly more than 2 months which
elapsed from May 9 until the disciplinary interview on July
10, Roberts was written up by Bowlby 11 times During the
2 weeks which elapsed between July 10 and his suspension
July 24, Roberts was written up by Bowlby for seven defi-
ciencies occurring on six different workdays Roberts, a
known union activist, was an almost entirely satisfactory
employee until shortly before the second election, when, in
Bowlby's view, he completely fell apart This fact alone
warrants regarding the criticisms noted in his file with con-
siderable suspicion I credit Roberts' self-evaluation to the
effect that his job performance during this period of time
and thereafter was no better or worse than it was before a
rash of critical comments were made the subject of official
notations Bowlby could advance no reason which would
account for a sudden and serious lapse in the diligence and
dedication in Roberts' job performance, and I conclude
that no such lapse occurred
What did occur just before Roberts was given the second
step of the disciplinary procedure was that Roberts had
given a statement to Board Agent Howard in support of
the Union's objections and had spoken up at a staff meet-
ing to let Bowlby know that he had done so Thereafter, the
groundwork was laid for his termination A disciplinary
interview took place, followed by a studied effort on
Bowlby's part to make a written record which would sup-
port a further personnel action against him The action
contemplated by the Respondent on July 10, when the ex-
istence of these 12 notations was first brought to Roberts'
attention, was discharge Between July 10 and 24, the Re-
14 One of these incidents-and perhaps the most serious-involved a re-
quest by Roberts, just before election, for time off one afternoon so he could
plant some crops Bowlby denied the request because another employee had
been given the afternoon off for the same reason and Bowlby was short-
handed Roberts told Bowlby that if he did not get the time off he would
take it anyway Bowlby told Roberts that, if he left without permission he
would be fired, so Roberts reconsidered his statement and stayed at work
In the course of this argument, Roberts told Bowlby that when the Union
came in, things would improve so that employees would be able to get time
off This incident was not deemed to be of sufficient importance to warrant
further disciplinary action
spondent received service of a second unfair labor practice
charge filed in Emerson's case and thereupon adjusted its
personnel procedures to be in a position to deal with Rob-
erts in a less stringent manner than it had originally con-
templated 15
The seven instances relied on by the Respondent as the
triggering events which assertedly motivated Roberts' 3-
day suspension were trivial and inconsequential matters In
some instance , Roberts was seen by Bowlby talking with
other employees in the plant Respondent has no rule or
practice forbidding or restricting such actions However,
Roberts, who was under surveillance during this period of
time, was cited for deficiencies in his job performance be-
cause of these conversations while other parties to the con-
versations were not similarly charged Precise times were
entered by Bowlby relating to certain deficiencies noted,
indicating that Bowlby was making a special effort to ob-
serve (and in some instances to time) Roberts during this
period, as well as a studied attempt to find sufficient fault
to warrant the taking of an adverse personnel action when
the 2-week "probation" period was over Moreover, some
of Bowlby's notations were made in lengthy and argumen-
tative fashion, indicating a desire on Bowlby's part to make
a case against Roberts rather than merely to record an
event
Respondent's demonstrated ammus, its knowledge of
Roberts' union sympathies, the fact that Roberts' perfor-
mance was largely acceptable to the Respondent until dust
before the May 30 election, the inauguration of the suspen-
sion effort immediately after Roberts had evidenced his
cooperation with the investigation of the Union's objec-
tions to the May 30 election, and the trivial nature of the
July 10-24 deficiencies relied on to justify a suspension, all
indicate that the excuse was pretextual and that the suspen-
sion which resulted therefrom was discrimination in hire or
tenure designed to discourage union membership and ac-
tivities in violation of Section 8(a)(3) of the Act I so find
and conclude
Upon the foregoing findings of fact, and upon the entire
record herein considered as a whole, I make the following
CONCLUSIONS OF LAW
1 Respondent Federal-Mogul Corporation is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act
2 International Union, United Automobile, Aerospace,
and Agricultural Implement Workers of America, UAW, is
15 The original unfair labor practice charge filed by the Charging Party
herein against the Respondent was dismissed by the Regional Director As
the 10(b) period had not run on July 14 the Charging Party refiled the
charge as a new case after which time the Regional Director saw fit to issue
the complaint in the instant case alleging that Emerson was discriminatorily
removed from employment Respondent asks that I accord some weight to
the action of the Regional Director in dismissing the first charge in
Emerson s case in evaluating the merits of this case If I did so in order to
be consistent I would be obliged to accord equal weight to the fact that the
Regional Director thereafter issued a complaint The countervailing weight
of both actions would cancel each other out in weighing the merits and
demerits of the Emerson discharge Instead, I elect to accord no probative
value to either action of the Regional Director and limit my evaluation of
Emerson s case to the facts in the record and the argument of counsel
FEDERAL-MOGUL CORPORATION
a labor organization within the meaning of Section 2(5) of
the Act
3 By coercively interrogating employees concerning
their union sympathies and activities, by engaging in sur-
veillance of union activities and by creating in the minds of
employees the impression that it was engaging in surveil-
lance of union activities, by destroying union literature
which was the private property and in the private posses-
sion of an employee, by threatening to close the plant and
to lay off employees if they selected the Union as their
bargaining agent, by promising better wages if the Union
lost the election, and by threatening to discontinue existing
benefits if the Union won the election, the Respondent
herein violated Section 8(a)(1) of the Act
4 By discharging Edsel D Emerson and by suspending
Gary Roberts from employment in order to discourage
membership in and support of International Union, United
Automobile, Aerospace, and Agricultural Implement
Workers of America, UAW, the Respondent violated Sec-
tion 8(a)(3) of the Act
5 The unfair labor practices recited above in Conclu-
sions of Law 3 and 4 have a close, intimate, and substantial
effect on the free flow of commerce within the meaning of
Section 2(6) and (7) of the Act
6 By the unfair labor practices recited above in Conclu-
sion of Law 3 and by the discharge of Edsel D Emerson,
as set forth above in Conclusion of Law 4, the Respondent
also interfered with the freedom of choice of its employees
in their selection of a bargaining representative at the rep-
resentation election which was conducted on May 30,
1975
REMEDY
Having found that the Respondent has committed cer-
tain unfair labor practices, I will recommend that it be
ordered to cease and desist therefrom and that it be re-
quired to take other actions designed to effectuate the pur-
poses and policies of the Act This Respondent is no
stranger to the Board and its processes, and the unfair la-
bor practices recited above are not the first which Federal-
Mogul has been found to have committed 16 As the
Respondent's illegal actions have been widespread, repeat-
ed, and have included the discriminatory discharge of an
employee, they go to the heart of the Act, so I will recom-
mend the issuance of a so-called broad 8(a)(1) order de-
signed to suppress any and all violations of that Section of
the Act J C Penney Co, Inc (Store #1814), 172 NLRB
1279, fn 1 (1968), Adam and Eve Cosmetics, Inc, 218
NLRB 1317 (1975) The conduct of the Respondent found
herein has also interfered with the free choice of a bargain-
ing representative by its employees who voted in the repre-
sentation election of May 30, 1975, so I will recommend
that the results of that election be set aside and that Case
10-RC-10230 be severed from the complaint cases and re-
16 Federal Mogul Corporation, Coldwater Distribution Center Division 163
NLRB 927 ( 1967), enforcement denied 394 F 2d 915 (C A 6, 1968 ), Sterling
Aluminum Company a Division of Federal A'ogul, 163 NLRB 302 (1967)
enforcement in part 391 F 2d 713 (C A 8, 1960), Federal Mogul Division of
the Federal Mogul Corporation 203 NLRB 1008 ( 1973), Federal Mogul Car
potation 212 NLRB 950 (1974)
339
manded to the Director for Region 10 with instructions to
conduct a third election at such time as free choice of a
bargaining representative can be made through the vehicle
of the Board's election processes I will also recommend
that Edsel D Emerson be reinstated to his former or sub-
stantially equivalent employment, and that he and Gary
Roberts be made whole for any loss of pay which they have
suffered by reason of the discrimination practiced against
them, to be computed in accordance with the Woolworth
formula, 17 with interest thereon at 6 percent per annum I
will also recommend that critical notes, reports, and evalu-
ations be removed from Gary Roberts' personnel file, in-
cluding the formal file kept in the personnel office and the
informal file maintained by his foreman I will also recom-
mend the posting of the usual notice, requiring the Respon-
dent to inform its employees of their rights and of the re-
sults in this case
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record in this proceeding, and pur-
suant to Section 10(c) of the Act, I hereby issue the follow-
ing recommended
ORDER 18
Respondent Federal-Mogul Corporation, Hamilton, Al-
abama, its officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Coercively interrogating employees concerning their
union sentiments and activities
(b) Threatening to close the plant or to lay off employ-
ees if they should select the Union as their bargaining
agent
(c) Engaging in surveillance of union activities of em-
ployees and creating in the minds of employees the impres-
sion that it is engaging in surveillance of their union activi-
ties
(d) Promising employees benefits if they should reject
union representation
(e) Threatening to discontinue existing benefits if em-
ployees should vote for union representation
(f) Discriminating against employees in the hire or ten-
ure of employment because they had joined or supported
International Union, United Automobile, Aerospace, and
Agricultural Implement Workers of America, UAW, or
any other labor organization
(g) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed to
them by Section 7 of the Act
2 Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act
(a) Offer to Edsel D Emerson full and immediate rein-
statement to his former position or, in the event that said
position no longer exists, to substantially equivalent em-
ployment, without prejudice to his seniority or to other
rights which he formerly enjoyed
17
F W Woolworth Company 90 NLRB 289 (1950)
18 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
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Make whole Edsel D Emerson and Gary Roberts
for any loss of pay they have suffered by reason of the
discriminations found herein, in the manner described
above in the section entitled "Remedy "
(c) Remove from all files maintained by the Respondent
and its supervisors any notes, memoranda, or other writ-
ings which adversely reflect upon the job performance of
Gary Roberts and which were issued or placed therein be-
tween May I and July 30, 1975
(d) Post at its Hamilton, Alabama, plant copies of the
attached notice marked "Appendix " 19 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 10, after being duly signed by a representative of the
Respondent, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, mclud-
19 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
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
ing all places where notices to employees are customarily
posted Reasonable steps shall be taken to insure that such
notices are not altered, defaced, or covered by any other
material
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order
(f) Notify the Regional Director for Region 10, in writ-
ing, within 20 days from the date of this Order, what steps
it has taken to comply herewith
IT IS FURTHER ORDERED that the objections filed in Case
10-RC-10230 to the election of May 30, 1975, be, and they
hereby are, sustained and said election is hereby set aside,
that said case be, and it hereby is, severed from Case 10-
CA-11342 and Case 10-CA-11388 and remanded to the
Director for Region 10, and that said Director is hereby
directed to conduct a third election therein at such time as,
in his judgment, a free and fair election can be held