FMC Corp.

National Labor Relations Board - Board Decisions

Mar 27, 1970

181 N.L.R.B. 839 (N.L.R.B. 1970)

FMC CORPORATION 839
FMC Corporation and International Union , United
Automobile , Aerospace and Agricultural
Implement Workers of America (UAW). Case
5-CA-4428
March 27, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On November 24, 1969, Trial Examiner A. Bruce
Hunt issued his Decision in the above-entitled
matter, finding that Respondent had engaged in and
was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner further found that Respondent had not
engaged in certain other unfair labor practices
alleged in the complaint, and recommended that
such allegations be dismissed. Thereafter, the
General Counsel filed exceptions to the Decision and
a supporting brief, and Respondent filed an answer
to the exceptions of the General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, the
Respondent's answer thereto, and the entire record
in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner to the extent consistent herewith.
We agree with the Trial Examiner that
Respondent violated Section 8(a)(l) of the Act by
maintaining an excessively broad plant rule in that it
forbade union activity anywhere on the
Respondent's premises during nonworking hours and
without permission. While we also agree with the
Trial Examiner that the record does not establish
that Roy Williams was terminated because of his
union activities rather than for cause, we find merit,
for the reasons stated below, in the General
Counsel's exception to the Trial Examiner's failure
to find that Respondent refused to rehire Williams
in violation of Section 8(a)(3) of the Act.
The undisputed facts are that when Williams filed
his original application for employment with
Respondent in September 1968, he indicated his
willingness to work any shift. He was hired in
October 1968 as a utility metal worker assigned to
the day shift, and he worked primarily as a welder.
He was transferred from the day to the night shift in
December 1968 at a time when Respondent was
having difficulty getting employees to transfer to
that shift. Williams returned to the day shift in
February 1969 when all night shift work was
terminated and all employees on that shift were
transferred to daytime work.
On May 1, 1969, Respondent held a meeting of
its assembled employees at which Plant Manager
Sheetz announced that he was not in favor of having
a union in the plant. Williams asked Sheetz at the
meeting what he intended to do about wage
increases for employees and challenged Sheetz'
remarks about annual pay increases given by the
Respondent, stating that the increases did not equal
the rise in the cost of living. The meeting was over
at 3:15 p.m., and at 3:45 p.m. the production
superintendent approached Williams and told
Williams he was being transferred to the night shift
starting the next night. Williams refused the
assignment and within 20 minutes he was handed his
final paycheck and discharged.
At 5.30 p.m., the same day, Williams called the
production superintendent and told him that because
he badly needed the job, he would take the night
shift if there was no possibility that he could be used
on the day shift. Williams was told to come to the
plant the next day, May 2, and when he appeared he
was told that he could not have his job back on
either the day or night shift. Williams then filled out
a job application and as of the time of the hearing
he had never been offered employment even though
there had been openings for an applicant with his
skills.
The Respondent alleges that it refused to
reemploy Williams because . his conduct
demonstrated he could not be relied upon to accept
assignments that were necessary to its operations.
However, the record establishes that the reason
offered by the Respondent was a pretext upon which
it seized to rid itself of the most active union
proponent in its employ. Thus, Williams was the
leading union adherent at Respondent's plant, and
engaged in extensive organizational activities
commencing in December 1968 and continuing
beyond May 2, 1969, when he was refused
reemployment by Respondent. Like the Trial
Examiner, we find that Respondent not only looked
with disfavor upon the union organizational efforts
but also, contrary to Respondent's contention, knew
Williams was a strong union adherent.' Nor does
'Although Respondent filed no exceptions to the Trial Examiner's
Decision, in its Answer to the Exceptions of General Counsel to the Trial
Examiner' s Decision it reiterates that it had no knowledge of the union
activity of Williams until May 7 , 1969, 6 days after his termination In
rejecting the Respondent 's allegation of lack of knowledge at the time of
the refusal to reemploy Williams, we agree with the Trial Examiner that
based on the following facts accumulatively the inference is warranted that
the Respondent suspected or was aware of Williams' union activities (1)
Williams openly engaged in extensive union activities on and off the plant
premises , (2) there is a probability that Plant Manager Sheetz received
specific information from a local businessman on April 25; (3) Williams
sharply questioned Plant Manager Sheetz during Sheetz ' speech to
assembled employees the day before he was discharged; (4) the plant is
181 NLRB No. 127
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the record reveal that he showed himself to be
unreliable. Williams accepted a transfer to the night
shift in December when Respondent found it
difficult to get other employees to accept such a
transfer, and he had been cooperative in all other
respects as well. He was a capable worker with a
skill for which Respondent had a continuing need.
Furthermore, after rejecting the night work,
Williams changed his mind and indicated his
willingness to accept the night shift work only about
2 hours after his discharge and immediately
communicated this to the supervisor that same day,
before he was replaced and while Respondent's need
was still great. In these circumstances, we can only
conclude that Williams was denied reemployment
not for any valid reason but because he was known
or suspected by Respondent to be a strong union
adherent 2 Accordingly, we conclude, and find, that
by refusing to reemploy Williams on and after May
2, 1969, Respondent discriminated against him in
violation of Section 8(a)(3) and (1) of the Act.
THE REMEDY
In view of our findings above, we shall order that
Respondent offer Roy E. Williams immediate
reemployment to the same or substantially
equivalent position he would have had had he not
been unlawfully refused reemployment, without
prejudice to his seniority or other rights and
privileges, and make him whole for any loss of
earnings he may have suffered by reason of the
discrimination against him, by payment to him of a
sum equal to that which he normally would have
earned from May 2, 1969, the date of his
application for reemployment, to the date the
Respondent offers him reemployment, less his net
earnings during such period. The backpay provided
herein shall be computed on the basis of calendar
quarters, in accordance with the method prescribed
in F W. Woolworth Company, 90 NLRB 289.
Interest at the rate of 6 percent per annum shall be
added to such net backpay and shall be computed in
the manner set forth in Isis Plumbing & Heating
Co., 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
FMC Corporation, Woodstock, Virginia, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Maintaining in effect a rule prohibiting union
activity during nonworking time in nonworking
areas of the plant and barring solicitation during
nonworking time anywhere in the plant
(b) Discouraging membership in 'International
Union, United Automobile, Aerospace and
Agricultural Implement Workers of America
(UAW), or in any other labor organization of its
employees, by refusing to hire employees because of
their union or suspected union membership or
activities, or by discriminating against employees or
applicants for employment in regard to their hire or
tenure of employment or any term or condition of
their employment.
(c) In any other manner interfering with,
restraining, or coercing employees in the exercise of
the right to self-organization, to form labor
organizations, to join or assist the International
Union, United Automobile, Aerospace and
Agricultural Implement Workers of America
(UAW), or any other labor organization, to bargain
collectively through representatives of their own
choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other
mutual aid or protection or to refrain from any or
all such activities
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Roy E. Williams immediate
employment at the same or a substantially
equivalent position in which he would have been
employed had he not been discriminated against,
and make him whole for any loss of earnings he
may have suffered by reason of the discrimination
against him, in the manner set forth in the section
of this Decision entitled "The Remedy."
(b) Notify the above-named employee if presently
serving in the Armed Forces of the United States of
his right to reemployment upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after his discharge from the Armed
Forces
(c) Post in conspicuous places in its plant,
including all places where notices to employees
customarily are posted, copies of the attached notice
marked "Appendix." All copies of said notices are
to be prepared for the Respondent's signature by the
Regional Director for Region 5. All copies shall,
after being signed by the Respondent's
representative, be posted by it promptly and
maintained by it for at least 60 consecutive days
thereafter. Reasonable steps shall be taken by the
Respondent to ensure that said notices are not
altered, defaced, or covered by any material.'
(d) Notify said Regional Director, in writing,
within 10 days from the receipt, of this Decision
what steps the Respondent has taken to comply
herewith.
small, with only about 60 employees , and (5 ) the town apparently has a
current population of "around 3000 "
'Cf Central Power & Light Co, 173 NLRB No 50, Ripley Mfg Co.
144 NLRB 1132, 1149-51
'In the event that the Board 's Order be 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board "
FMC CORPORATION ' 841
IT IS 'HEREBY FURTHER ORDERED that the
complaint herein be, and it hereby is, dismissed
insofar as it alleges violations of the Act not found
herein.
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL NOT prohibit union activity during
nonworking time in nonworking areas of the plant or
bar solicitation during nonworking time anywhere in
the plant.
WE WILL NOT refuse to reemploy and we will not in
any other manner discriminate against employees or
applicants for employment because of union or
suspected union membership and activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the right
to self-organization, to form labor organizations, to join
or assist the International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW) or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid
or protection or to refrain from any or all such
activities
Since the Board found that we violated the law when
we refused to reemploy Roy E. Williams, WE WILL
offer him immediate employment at the same or
substantially equivalent position as he would have had
had he not been refused reemployment, with backpay
for any wages he lost as a result of the refusal to
employ him.
WE WILL notify the above-named employee if
presently serving in the Armed Forces of the United
States of his right to reemployment upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after his discharge from the Armed Forces.
FMC CORPORATION
(Employer)
Dated By
-(Representative ) (Title)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's Office,
Federal Building, Room 1019, Charles Center, Baltimore,
Maryland 21202, Telephone 301-962-2822
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A. BRUCE HUNT, Trial Examiner. This proceeding, in
which the charge and amended charge were filed on June
25 and August 25, 1969, and in which the complaint was
issued on August 27, 1969, involves allegations that the
Respondent, FMC Corporation, Woodstock, Virginia,
violated Section 8(a)(l) and (3) of the National Labor
Relations Act, as amended, 29 U.S. C., sec. 151, et seq
On September 18, 1969, I conducted a hearing at
Woodstock, Virginia, at which the General Counsel and
the Respondent were represented There was oral
argument, and subsequently the Respondent filed a brief.
Upon the entire record and my observation of the
witnesses, I make the following
FINDINGS OF FACT
1. THE RESPONDENT
FMC Corporation, a Delaware corporation, operates a
plant in Woodstock, Virginia, where it manufactures fruit
and vegetable packing-house equipment. The Respondent
annually ships products valued in excess of $50,000
directly to points outside the Commonwealth of Virginia
There is no dispute, and I find, that the Respondent is
engaged in commerce within the meaning of the Act.
II THE UNION
The Charging Party, International Union, United
Automobile, Aerospace and Agricultural Implement
Workers of America, is a labor organization which admits
to membership employees of the Respondent
III. THE UNFAIR LABOR PRACTICES
A The Issues
The issues are whether the Respondent (1) maintained
an invalid rule prohibiting solicitations on its property,
and (2) invalidly discharged and refused to reinstate Roy
E. Williams, an employee who was a leader in the Union's
organizational activities Williams, who had worked on
both the day and night shifts, refused to accept a transfer
to the night shift on May 1, 1969, and his termination
followed. Thereafter he was denied reemployment.
B. The Rule
The Respondent has operated its plant in Woodstock
since 1948. Upon an undisclosed date prior to 1957, the
Respondent promulgated a rule that read- "No
Distribution of Literature, Soliciting or Selling of any
kind may be done on Company Property without
permission." During 1957 the Respondent issued a booklet
of rules and regulations that incorporated the rule On
May 21, 1969, during the organizational activities, the
Union filed with the Board a petition for an election in
Case 5-RC-6833.' On June 20, 1969, a notice was posted
on plant bulletin boards over the signature of Charles E
Sheetz, the plant manager, as follows-
NOTICE
I wish to remind all personnel that the following Plant
General Regulation has been (since March, 1957) and
,The record in this proceeding contains a reference to the representation
proceeding by case number and the number of employees in the unit
Additional data recited herein concerning the representation case, including
the date the petition was filed, was obtained by me from the Board's
Division of Administration The Union's organizational activities are
recited below in connection with the termination of Williams ' employment
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
still is in effect at the Woodstock Plant and that all
violations are subject to disciplinary action*
[The rule quoted above appears at this point]
On June 23, the notice was removed, but the rule has
remained in effect The evidence concerning the rule has
been recited in its entirety In particular, there is no
evidence concerning the circumstances under which the
rule was adopted, although it is a reasonable inference,
and I find, that Sheetz' notice was posted as a result of
the organizational campaign. The General Counsel
contends that the rule is invalid because it is too broad,
and the Respondent's position is that the rule did not
interfere with the employees' exercise of their Section 7
rights The General Counsel's contention is sound. Sheetz'
notice violated Section 8(a)(1) because it prohibited union
activity on the premises of the plant during nonworking
hours Kern's Bakery, Inc , 150 NLRB 998, 1000. The
fact that no employee appears to have been disciplined for
a breach of the rule does not validate the posting of the
notice, nor does it establish that the notice did not have its
intended effect upon some of the employees. I shall
recommend that the Respondent be required to rescind the
rule. Following rescission, if the Respondent should
promulgate a new rule, it must word the new rule with
such clarity that the "employees can understand the types
of union activity in which they may engage on the
Respondent's property during nonworking time without
fear of disciplinary action." Mallory Battery Company,
176 NLRB No 108
C. The Issues Involving Williams
Williams was hired during October 1968 as a utility
metal worker He worked principally as a welder. During
his employment, his hourly wage was increased from
$1.75 to $1.95, and there is no dispute that he was a
capable worker. During December 1968, Williams was
transferred from the day shift to the night shift. In his
application for employment, filed during the preceding
September, he had signified a willingness to work on any
shift, and his transfer during December occurred when the
Respondent was having difficulty in inducing employees to
accept transfers to the night shift.'
Williams initiated the union activity and became the
leading adherent During December, he contacted a
representative of a labor organization that represents the
employees at another plant owned by the Respondent
During January 1969, C. E. Strickland, a representative of
the Union, met with Williams at the latter's home and
they discussed various aspects of organizing. Their
discussions were not made known to the Respondent
During February, work on the night shift was
terminated and the employees on that shift were
transferred to the day shift By April 10, however, the
Respondent had decided to begin a night shift anew
because of an increase in business. On that day, an
'There is uncontradicted testimony by Williams that a representative of
management , Ripley Click, asked him to accept a transfer to the night
shift for a few weeks and explained that the Respondent was having little
success in organizing a night shift because employees would not volunteer
for that work According to Williams , Click said to him that he had a
choice in whether to accept a transfer , although Click preferred that he not
have a choice , and that he said to Click that he "would be happy to do
anything that [he] could for the company" While on the night shift,
Williams earned an additional 5 cents per hour
individual named Shannon, who is a vice president of the
Respondent, visited the plant and spoke to the employees.
Shannon told them that some of the employees would be
transferred to the night shift although they would not "be
very happy about it " Williams was one of Shannon's
listeners.
On April 21 and 22, Strickland met with Williams and
several other employees. One of the meetings was at the
local American Legion Hall. Strickland gave union cards
to the employees, and on the latter day he told them to
solicit signatures. Williams became the chairman of an
organizing committee that consisted of 7 employees, all of
whom solicited signatures to cards on the premises of the
plant during nonworking hours. They did not seek to
conceal their actions. During the latter part of April, a
second union meeting was held at the American Legion
Hall, two were held at the local Fire Hall, and about 6
were held at Williams' home There is no evidence that
any representative of management observed Williams'
solicitations or spoke to him about the Union The
Respondent denies having learned that Williams was a
union adherent until about a week after his employment
was terminated on May 1 On the other hand, the General
Counsel argues that, because the plant had only 60
employees approximately, and the town in which the plant
is located is small, an inference should be drawn that, on
or before May 1, the Respondent was aware that Williams
was a union adherent' The inference is a reasonable one
in view of Williams' union activities on the plant's
premises and a question that he asked the plant's
manager, Sheetz, on May 1, to be recited hereinafter
On April 29, at a weekly production meeting of
representatives of management, there was a discussion
concerning enlargement of the night shift by transferring
employees from the day shift. Upon an undisclosed earlier
date, the night shift had been reestablished, and on April
29 about 12 employees were working on it . Although the
only testimony concerning this meeting is that given for
the Respondent by plant officials, the minutes of the
meeting were in the possession of the General Counsel,
and his questions reflect that such a discussion did take
place According to the Respondent's evidence, a decision
'At the hearing, the General Counsel asserted that the 1960 census
showed Woodstock ' s population to be approximately 2,000 and that his
inquiries reflected a current population of "around 3,000 "
'Sheetz was less than candid in testifying about the occasion when,
according to him , he learned of the union activities On direct examination,
Sheetz testified that on the morning of April 25 he received a telephone
call from a local business man, whom he did not identify, and that the
man said that Sheetz "would want to know that there seemed to be some
[union] activity ," but that the man "would not indicate anyone nor did he
seem to know anything other than the fact that something was moving "
On cross examination, Sheetz testified that the businessman is an
individual whom Sheetz is "in contact with more than just occasionally,"
that the individual said that there had been a union meeting of employees
the night before, that the individual did not say where the meeting had
been held or identify anyone who attended , and that Sheetz did not ask the
individual any questions As a consequence of the telephone call, according
to Sheetz , he telephoned the Respondent 's divisional personnel manager in
Florida and related the scant information that had been given to him by
the businessman, to which the personnel manager responded that a check
would be made to ascertain the name of counsel to represent the
Respondent Sheetz testified further that later that morning the personnel
manager called him to give the name of counsel , following which Sheetz
telephoned counsel to say that the Respondent might "be calling on him if
anything developed " I was not favorably impressed by Sheetz ' testimony
that he asked no questions of the businessman and t do not believe that
Sheetz would have telephoned the personnel manager without first having
obtained more information than that which Sheetz testified that the
businessman related to him
FMC CORPORATION 843
was made to transfer Williams and another employee,
Randall Crisman, to the night shift as soon as possible
within the pay period that began on May 1. The minutes
recite that Crisman was mentioned by name, but they
contain no specific reference to Williams The
Respondent's position is that, of all the welders on the day
shift who were qualified for the difficult welding to be
done on the night shift, Williams had the least seniority
on the day shift, and that Williams was selected for that
reason.
During the afternoon of May 1, Sheetz addressed the
employees on the day shift, and later that day he spoke to
those on the night shift. There is no contention that
Sheetz' remarks violated Section 8(a)(l) In his first
address, Sheetz spoke, inter aba, of the growth of the
plant, a good relationship between the Respondent and the
employees, and annual increases in pay He said too that
he recognized the right of employees to engage in union
activities, that some employees wanted "outsiders in here
to run this plant," and that, if employees were asked to
sign union cards, the cards should be ones that requested
an election , rather than ones that authorized union
representation 5 At the conclusion of Sheetz' remarks, he
asked if there were any questions. Frank Whittington, one
of the 7 union committeemen, asked why the Respondent
maintained a better insurance plan for its employees at a
nearby plant than at the plant in Woodstock, and Sheetz
replied that he'would look into the matter. Williams then
challenged Sheetz' remarks about annual increases in pay
by saying that the increases did not equal the rise in the
cost of living. Sheetz gave an ambiguous response The
meeting ended.
Later during the afternoon of May 1, Hobart D.
Cutright, the production superintendent at the plant, went
to Williams' place of work and said that he had news for
Williams that the latter would not like or might not like,
namely, that Williams was to be transferred to the night
shift. Cutright testified that he spoke of a possibility that
Williams might not like to work on the night shift because
some employees do not like such work and that he had no
other reason to believe that Williams would object to the
proposed transfer. Williams replied to Cutright's remarks
by saying that he would not accept the transfer. Williams'
reason was that he had begun to assist his father in the
latter's welding shop during evenings, but Williams did
not disclose this reason to the Respondent and it does not
appear that the Respondent was aware of it. Within 15
minutes, Cutright returned to Williams and asked whether
the latter had changed his mind. Williams answered with a
firm negative. According to Cutright, he then said to
Williams that he "hate[d] to lose" Williams and that there
were "no hard fellings." According to Williams, when
Cutright spoke to him the second time, Cutright gave him
an opportunity to reconsider his refusal to accept the
transfer About 10 minutes later, as the end of the
workday neared, Cutright returned to Williams with
paychecks covering the latter's work through that day.
Cutright terminated Williams' employment with the
remark that he was sorry that Williams had refused the
transfer. Williams went home and within about 1 hour he
had changed his mind. He telephoned Cutright, saying
that he needed a job and that he would reconsider
working on the night shift if he could not continue on the
'The findings concerning Sheetz' remarks are based upon Williams'
uncontradicted testimony Williams also testified that the union cards
which he and other union committeemen circulated were cards that
requested an election
day shift. Cutright said that he would have to talk with
his "boss," and it was agreed that Williams would call
upon Cutright the next day
On May 2, Williams went to the plant and talked with
Cutright who refused to rehire Williams for work on
either shift. Williams then filled out an application for
employment, but the Respondent never contacted him
although then and thereafter there were openings for a
man of Williams' abilities According to the testimony for
the Respondent, about May 7 it learned that Williams had
been a strong supporter of the Union, but it did not rehire
Williams on May 2 or later because he had demonstrated
that the Respondent could not rely on him to accept
assignments that were necessary in its operations.
As recited, on May 21 the Union filed its petition for
an election, and on June 20 the Respondent posted the
notice which violated Section 8(a)(l). On July 25, the
election was conducted and there were 34 votes in favor of
the Union, 22 against it, and 4 challenged ballots that did
not affect the outcome. Williams' activities on behalf of
the Union continued up to the date of the election and
included the distribution of materials outside the premises
of the plant, communications with employees, and
attendance at union meetings in his home and in the
American Legion Hall.
The initial issue is whether the Respondent violated
Section 8(a)(3) in terminating Williams' employment. The
answer is clearly in the negative. Although the Respondent
upon occasion had given consideration to employees'
wishes in making assignments to shifts, Williams did not
have a right to reject a transfer to the night shift. The
Respondent, in the operation of its business, and in the
absence of a collective labor agreement governing
assignments to shifts, had the right to transfer its
employees from one shift to another if such transfers were
not in retaliation for the employees' having engaged in
union activities. The record will not support a finding that
such retaliation motivated the Respondent in seeking to
transfer Williams; on the contrary, the record reflects that
the Respondent, in the exercise of its business judgment,
believed that Williams should work on the night shift.
Additionally, the record will not support a finding that the
Respondent, seeking an excuse to discharge Williams,
anticipated that Williams would reject a transfer to the
night shift and that he would persist notwithstanding an
opportunity afforded to him to change his mind He had
recited in his application for employment that he would
work on any shift, he had worked on the night shift
during December-February, and he had not told the
Respondent that his work for his father at night had
brought an end to his willingness to work for the
Respondent at night. In summary, the Respondent did not
violate Section 8(a)(3) in terminating Williams'
employment.'
The next issue is whether the Respondent refused to
rehire Williams because of his union activities. This issue
is much more difficult to resolve. On the one hand, we
have the Respondent's assertion that Williams, although a
capable worker, became an unsatisfactory employee
because he would not accept an assignment that
management deemed necessary in the operation of the
'The General Counsel sought unsuccessfully to prove that , subsequent to
Williams' termination , an employee named Larry Fogle refused to accept a
transfer to the night shift and was not discharged Williams' testimony to
that effect was stricken as hearsay , and the General Counsel 's cross
examination of Cutright on the point was futile Fogle was not called as a
witness
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant. This was so, according to the Respondent, although
it had a steady need for welders of Williams' ability. On
the other hand, we have seen that the Respondent looked
with disfavor upon the organizational efforts and knew
that Williams was a strong union adherent. Such disfavor
is shown by portions of Sheetz' remarks to employees on
May 1, although such remarks did not violate the Act,
and by the notice that was posted over his signature on
June 20. The posting of that notice, however, is the only
independent violation of Section 8(a)(l) disclosed by the
record. In particular, there is no evidence that any
supervisor made any oral statement that tended to hinder
the organizational campaign or to prevent a free
expression of the will of the employees at the polls.
Although I have a doubt concerning the Respondent's
motivation in refusing to rehire Williams, particularly
when there was a substantial need for the services of a
man of his ability, the factual recitation leads to the
conclusion that the record does not warrant a finding that
the Respondent violated Section 8(a)(3).7
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the
meaning of Section 2(5) of the Act
2. By interfering with , restraining , and coercing
employees in the exercise of their rights under the Act, the
Respondent has engaged in and is engaging in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(l) and Section 2(6) and (7) of the Act.
3. The record does not establish that the Respondent
violated Section 8(a)(3).
RECOMMENDED ORDER
Upon the above findings of fact and pursuant to
Section 10(c) of the Act, and in order to effectuate the
Act's policies, I hereby recommend that the Respondent,
FMC Corporation, Woodstock, Virginia, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Prohibiting union activity on the premises of its
plant during nonworking hours.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act-
(a) Rescind its rule that reads: "No Distribution of
Literature, Soliciting or Selling of any kind may be done
on Company Property without permission."
(b) Post in conspicuous places in its plant, including all
places where notices to employees customarily are posted,
copies of the notice attached hereto as Appendix. All
copies of said notice are to be prepared for the
'Crisman, who is mentioned above in connection with the minutes of the
production meeting on April 29 , was a painter who was told by
management that he would be transferred to the night shift He quit rather
than accept the transfer He was not rehired, but the record does not
disclose whether he sought reemployment
Respondent's signature by the Regional Director for the
Fifth Region. All copies shall, after being signed by the
Respondent's representative, be posted by it promptly and
maintained by it for at least 60 consecutive days
thereafter. Reasonable steps shall be taken by the
Respondent to ensure that said notices are not altered,
defaced, or covered by any material.'
(c) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision what steps the
Respondent has taken to comply herewith '
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of Section 8(a)(3)
of the Act.
'In the event no exceptions be filed as provided by Section 102 46 of the
Rules and Regulations of the Board , the findings , conclusions,
recommendations , and Recommended Order herein, shall, as provided in
Section 102 48 of the Rules and Regulations , be adopted by the Board and
become its findings, conclusions, and order, and all objections thereto shall
be deemed waived for all purposes In the event that the Board ' s Order be
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 be changed to read "Posted pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board "
'In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order what steps the
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL NOT prohibit union activity on our property
during nonworking hours.
WE WILL NOT violate any of the rights that you have
under the National Labor Relations Act to join a union
of your own choice and to engage in union activities, or
not to join a union and not to engage in such activities
WE hereby rescind our rule that reads: "No
Distribution of Literature, Soliciting or Selling of any
kind may be done on Company Property without
permission."
FMC CORPORATION
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's Office,
1019 Federal Building, Charles Center, Baltimore,
Maryland 21202, Telephone (301) 962-2822