Furnas Electric Co.

National Labor Relations Board - Board Decisions

Jun 4, 1970

183 N.L.R.B. 1 (N.L.R.B. 1970)

Furnas Electric Company and International Union,
United Automobile, Aerospace & Agricultural
Implement Workers of America (UAW). Cases
13-CA-8069 and 13-CA-8723
June 4, 1970
DECISION AND ORDER
By MEMBERS FANNING, MCCULLOCH, AND JENKINS
On June 30, 1969, Trial Examiner Harry R.
Hinkes issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor prac-
tices 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 also found that Respondent
had not engaged in certain other unfair labor prac-
tices. Thereafter, Respondent filed exceptions to
the Trial Examiner's Decision and a supporting
brief, the Charging Party filed exceptions and a
supporting statement, and the General Counsel
filed a brief in support of the Trial Examiner's
Decision and 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
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
briefs, and the entire record in the case, and hereby
adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner, with the following
modifications.
We find, contrary to the Trial Examiner, that the
no-solicitation and no-distribution rules were suffi-
ciently modified, and the notice of the modification
was sufficiently conveyed by the Respondent on or
about February 20, 1968, to correct their illegality.
Notwithstanding this finding, we find, in agree-
ment with the Trial Examiner, that the promulga-
tion of the illegal rules took place within 6 months
of the charge relating thereto. We further note that
these rules, although not enforced, were maintained
during the Union's organizational drive. The sub-
sequent modification of the rules, correcting their
These findings and conclusions are based, in part, upon credibility
determinations of the Trial Examiner to which the Respondent has ex-
cepted After a careful review of the record, we conclude that the Trial Ex-
aminer's credibility findings are not contrary to the clear preponderance of
all the relevant evidence Accordingly, we find no basis for disturbing those
illegality, does not have the retroactive effect of
validating these prior violative acts, nor does it
preclude the Board from issuing an appropriate
cease-and-desist order' Accordingly, we find that
the actions of the Respondent prior to February 20,
1968, in promulgating and maintaining illegal no-
solicitation and no-distribution rules were in viola-
tion of Section 8(a)(1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respon-
dent, Furnas Electric Company, Batavia, Illinois, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening loss of benefits and imposition
of additional duties if the Union is selected by the
employees.
(b) Creating the impression that it is engaged in
surveillance of the union activities of employees.
(c) Unlawfully interrogating employees concern-
ing their union membership, activities, and desires.
(d) Maintaining a no-solicitation rule which
prohibits union solicitation by employees during
nonwork time.
(e) Maintaining a no-distribution rule which
prohibits the distribution of union literature by em-
ployees in nonwork areas during nonwork time.
(f) Discouraging membership in the Union or.
concerted activities for the purpose of mutual aid
or protection by discharging or otherwise dis-
criminating against employees because they have
engaged in union or concerted activities.
(g) Interfering with, restraining, or coercing its
employees in the exercise of their rights under the
Act by granting them wage raises or by improving
the terms or conditions of their employment, pro-
vided, however, that nothing in this Order shall be
construed as requiring the Respondent to vary or
abandon any wage raise or improvement in employ-
ment conditions which it has heretofore
established.
(h) In any other manner interfering with,
restraining, or coercing its employees in the exer-
cise of their right to self-organization, to form, join,
or assist the Union, or any other labor organization,
to bargain collectively through representatives of
their own choosing, or to engage in other concerted
activity for the purpose of collective bargaining or
other mutual aid or protection or to refrain from
any such activity.
findings Standard Dry Wall Products , Inc , 91 NLRB 544, enfd 188 F 2d
362 (CA 3)
% Allen-Morrison Sign Co, Inc, 79 NLRB 903, Levi-Strauss and Co,
172 NLRB No 57
183 NLRB No. 1 1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which
we find will effectuate the policies of the Act:
(a) Offer to employees Eloise Guennette and
Kay Vander Valk immediate and full reinstatement
to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges,
and make them whole for any losses they may have
suffered by reason of the discrimination against
them in the manner set forth in the section of the
Trial Examiner's Decision entitled "The Remedy."
(b) Preserve and, upon request, make available
to the Board or its agents , for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Notify those employees who were dis-
criminatorily discharged if presently serving in the
Armed Forces of the United States of their right to
full reinstatement upon application in accordance
with the Selective Service Act and the Universal
Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(d) Post at its Batavia, Illinois , place of business
copies of the attached notice marked "Appendix."3
Copies of said notice, on forms provided by the Re-
gional Director for Region 13, after being duly
signed by Respondent's representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 13,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
IT IS FURTHER ORDERED that those portions of the
complaint as to which no violations have been
found are hereby dismissed.
3 In the event that this 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 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 "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten loss of benefits and
imposition of additional duties if a union is
selected by the employees.
WE WILL NOT create the impression that we
are engaging in surveillance of your union ac-
tivities.
WE WILL NOT unlawfully question you con-
cerning your union membership, activities, and
desires.
WE WILL NOT promulgate or maintain a no-
solicitation rule which prohibits union solicita-
tion by you during nonwork time.
WE WILL NOT promulgate or maintain a no-
distribution rule which prohibits the distribu-
tion of union literature by you in nonwork
areas during nonwork time.
WE WILL NOT discourage either membership
in a union or concerted activities for the pur-
pose of mutual aid or protection by discharging
or otherwise discriminating against you
because you have engaged in union or con-
certed activities.
WE WILL NOT interfere with, restrain, or
coerce you in the exercise of your rights under
the National Labor Relations Act by granting
you wage raises or by improving the terms or
conditions of your employment, provided,
however, that we are not required to vary or
abandon any wage increases or improvements
in employment conditions which have been
heretofore established.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
your right to self-organization, to form, join, or
assist the International Union, United Automo-
bile, Aerospace & Agricultural Implement
Workers of America (UAW), or any other
labor organization, to bargain collectively
through representatives of your own choosing
or to engage in other concerted activity for the
purpose of collective bargaining or other mu-
tual aid or protection or to refrain from any
such activity.
WE WILL offer to employees Eloise Guen-
nette and Kay Vander Valk immediate and full
reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority
or other rights and privileges, and we will make
them whole for any loss of pay they may have
suffered because of the discrimination against
them.
WE WILL notify any of the above-named em-
ployees to whom we have been ordered to
make offers of reinstatement, if presently serv-
ing in the Armed Forces of the United States,
of their right to full reinstatement, upon appli-
cation, in accordance with the Selective Ser-
vice Act and the Universal Military Training
FURNAS ELECTRIC COMPANY 3
and Service Act, as amended , after discharge On October 16, 1968 , the Union filed additional
from the Armed Forces. charges against said Respondent which were served
All our employees are free to become or refrain on the Respondent on or about the same date. Pur-
from becoming members of the above -named suant thereto, a complaint in Case 13 -CA-8723
Union , or any other labor organization . was issued on October 30, 1968, in which Case
Dated By
FURNAS ELECTRIC
COMPANY
(Employer)
(Representative ) (Title)
13-CA-8069 was consolidated . On October 31,
1968, the Regional Director filed his report on ob-
jections to the Respondent 's conduct affecting the
results of the June 24 , 1968, election . In it the Re-
gional Director referred to the issues concerning
the Respondent 's conduct in the June 24, 1968,
election and in Case 13-RC-1 1356 to a Trial Ex-
aminer for a report and recommendation con-
solidating said hearing with the hearing in Cases
13-CA-8069 and 13-CA-8723. By answer duly
filed, Respondent denied the commission of any un-
fair labor practices as alleged in the consolidated
complaint.
A hearing was held before me at Geneva , Illinois,
from March 3 through 7, 1969, inclusive , at which
all parties were represented and were afforded full
opportunity to participate , examine witnesses, and
adduce relevant evidence . Briefs have been
received from the parties and have been given care-
ful consideration.
Upon the entire record in this proceeding, I make
the following:
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced , or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board 's Office , Room 881 , U.S. Courthouse and
Federal Office Building, 219 South Dearborn
Street , Chicago , Illinois 60604 , Telephone
'312-353-7572.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HARRY R. HINKES , Trial Examiner: Pursuant to a
charge filed on September 29, 1967, by Interna-
tional Union , United Automobile, Aerospace and
Agricultural Implement Workers of America
(UAW), hereinafter called the Union, and served
on Furnas Electric Company ( herein called the Em-
ployer or Respondent ) on or about October 2,
1967, as well as an amended charge filed by said
Union on December 12, 1967, and served on
Respondent on or about the same date , a complaint
in Case 13-CA-8069 was issued on January 23,
1968, alleging the commission of specified unfair
labor practices by the Respondent.
On December 27, 1967, said Union petitioned
for certification as representative of the Respon-
dent 's production and maintenance employees in
Case 13-RC-11356 . An election held pursuant
thereto on January 29 , 1968, was lost by the Union
and objections to the Respondent 's conduct were
filed by the Union . On May 23, 1968, Respondent
received the Regional Director 's report on these
objections in which he directed a second election.
On May 31, the Chicago Regional Office received
Respondent 's exceptions to the Regional Director's
report . On June 24, 1968, a second election was
held which the Union again lost. Once again the
Union filed objections to the Respondent's con-
duct.
FINDINGS OF FACT
I. JURISDICTION
Respondent is, and has been at all times material
herein , a corporation duly organized under and ex-
isting by virtue of the laws of the State of Delaware.
It maintains a place of business at Batavia , Illinois,
where it is, and has been at all times material
herein, engaged in the manufacture and sale of
magnet coils , electrical apparatus , and contact as-
semblies. During the past calendar or fiscal year, a
representative period, Respondent manufactured,
sold, and shipped finished products valued in excess
of $1 million from its plant in Batavia, Illinois,
directly to customers located outside the State of Il-
linois . During the same period it received goods
and materials valued in excess of $1 million directly
from points outside the State of Illinois. The com-
plaint alleges and Respondent 's answer admits that
Respondent is, and has been at all times material
herein , an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges and Respondent 's answer
admits that International Union , United Automo-
bile, Aerospace & Agricultural Implement Workers
427-258 O-LT - 74 - 2
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of America ( UAW) is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The parties appear to agree that the following are
the issues presented by this proceeding:
1. Were the Respondent 's solicitation and dis-
tribution rules a violation of Section 8(a)(1) of the
Act.
2. Was Respondent 's discharge of employees
Kay Vander Valk and Eloise Guenette a violation
of Section 8(a)(1) and/or 8(a)(3) of the Act.
3. Was Respondent 's 3-day suspension of em-
ployee Alan Carlson a violation of Section 8(a)(4)
of the Act.
4. Was Respondent 's announcement and grant
of employee benefits prior to the election of June
24, 1968, a violation of Section 8(a)(1) of the Act.
B. The No-Solicitation and No-Distribution Rules
A company rulebook was distributed to Respon-
dent 's employees on April 10, 1967. Thereafter, as
new employees were hired , the rulebook was dis-
tributed to them as well. Among its rules were the
following:
No solicitation or collecting of. contributions
for any purpose whatsoever is allowed on com-
pany property unless authorized by the Indus-
trial Relations Department.
There shall be no distribution of literature,
written or printed matter , of any description on
company premises unless authorized by the
Industrial Relations Department.
There is no evidence that the employees were ad-
vised by the Respondent that these rules were not
in effect , not enforced, or limited in their applica-
tion until February 20, 1968, subsequent to the
election of January 29 , 1968. On February 20,
1968, Respondent President Lisman spoke to the
employees over the public announcing system ad-
vising them that these rules would be applicable
only to violations which occur on company time.
A notice was posted to that effect as well and the
two rules in question were stricken from the rule-
book . Thereafter , new employees receiving the
rulebook would not find those two rules therein.
There is no evidence , however , that employees who
had been hired prior to February 20, 1968, received
such an amended rulebook.
In Stoddard-Quirk Manufacturing Co., 138 NLRB
615, the Board set forth the tests to determine the
legality of no -solicitation and no -distribution rules,
at least for nonretail establishments . In it the Board
held that the right of employees to solicit on plant
premises must be afforded subject only to the
restriction that it be on nonworking time. A rule
prohibiting union solicitation by employees during
nonworking time even though limited to work areas
would be presumptively invalid . On the other hand,
a rule forbidding union solicitation during worktime
in any plant area will be presumptively valid. A rule
forbidding distribution of union literature by em-
ployees in nonwork areas during nonwork time
would be presumptively invalid . Its prohibition in
work areas , however, would be presumptively in-
valid . Its prohibition in work areas , however, would
be presumptively valid even though such rule ap-
plies both to nonwork and work time. _
Here, the no -solicitation rule makes no distinc-
tion between worktime and nonwork time . The no-
distribution rule, in addition , makes no distinction
between work and nonwork areas. Both rules,
therefore , are presumptively illegal . Their promul-
gation within 6 months of the charge relating
thereto constitutes a violation of Section 8(a)(1) of
the Act as an interference with the rights of em-
ployees guaranteed by the Act. Levi Strauss and
Co., 172 NLRB No. 57; Allen-Morrison Sign Co.-,
Inc., 79 NLRB 903.
Counsel for the Respondent , however, argues for
the dismissal of this allegation of the complaint, cit-
ing the fact that Respondent directed its superviso-
ry and management employees both orally and in
writing that they could not bar employee represen-
tatives from soliciting union memberships during
nonworking hours. Such a modification of the no-
solicitation rule, even if conveyed to the rank-and-
file employees , would hardly constitute sufficient
correction of the presumptive illegality of both
rules. Moreover, there is no evidence that such cor-
rection was ever conveyed to the rank-and-file em-
ployees. Counsel for the Respondent further ar-
gues, however, that these rules were not enforced,
citing the fact, as testified to by some employees,
that union literature was seen throughout the plant
and that some employees were solicited for mem-
bership in the Union during work hours as well as
nonworktime. He cites Aerodex, Inc., 149 NLRB
192, where a no-solicitation rule covering nonwork-
ing as well as working time was held valid by the
Board . In that case , however, unlike this case, the
Respondent 's president in a speech to the em-
ployees had informed them that it applied only to
company time . The mere fact that union literature
could be found throughout the plant was insuffi-
cient indication that the Respondent 's no-distribu-
tion rules had been modified to permit distribution.
An employee might well conclude that the per-
petrators had been discovered and were being
punished in accordance with the rulebook.
FURNAS ELECTRIC COMPANY
Similarly , the fact that some employees were
openly solicited for union membership in con-
travention of the presumptively illegal no -solicita-
tion rule of the Respondent proves little. The
number of such incidents , at least as far as this
record is concerned , is miniscule compared to the
number of employees affected . Moreover , such at-
tempts were apparently made without the
knowledge of management agents or supervisors, so
that their acquiescence in such a modification of
the written rule can hardly be assumed. At the
most , we are left with presumptively invalid rules
which were not enforced by the Respondent. Such
lack of enforcement , however , is insufficient to
rebut the presumption that the rule as written was
illegal. Mason & Hanger- Silas Mason Co ., Inc., 167
NLRB 894; Dudley Manufacturing Corp., 167
NLRB 107; J. H. Rutter-Rex Manufacturing Co.,
Inc., 86 NLRB 470.
The announcement on February 20, 1968, that
the two rules would be applicable only to violations
which occur on company time was insufficient to
correct the illegality . For one thing, we cannot as-
sume that the president 's speech to the employees
over the public announcing system on that day
reached all of the employees , some of whom un-
doubtedly were absent and others of whom may not
have been within earshot of the loudspeakers. The
change in the written rules which took place
thereafter apparently was not made to the ru-
lebooks in the hands of employees already em-
ployed but only to the rulebooks issued to em-
ployees hired thereafter . Certainly , for a revocation
of an illegal rule to be effective , its publication
should be as extensive and complete as the promul-
gation of the illegal rule was. This was not the case
here . It follows, therefore, that these rules, which
were presumptively invalid as written , were main-
tained by the Respondent thereafter without effec-
tive modification despite the attempted modifica-
tion of February 20, 1968.
On the other hand , it appears that neither of
these rules was enforced by the Respondent and I
shall, therefore , recommend the dismissal of that
portion of that allegation of the complaint.
Counsel for the Respondent argues that the ac-
tion of the Regional Director in setting aside the
election of January 29 , 1968, was improper. That
issue , however , which concerns the Union 's objec-
tions to the Respondent 's conduct affecting that
election , is not before me either for a report, a
recommendation , or a decision.
C. Respondent's Discharge of Employees Kay
Vander Valk and Eloise Guenette
Kay Vander Valk (hereinafter referred to as
Kay) and Eloise Guenette (hereinafter referred to
5
as Eloise ) were employed as surface grinders in
Respondent 's department 8 which was under the
supervision of Foreman Ed Obenlander , admittedly
a supervisory agent of the Respondent . Working on
the same shift with Kay and Eloise in department 8
were setup man Bob Potts , lapping machine opera-
tor Connie Stanley , and grinders Jane Barker and
Betty Hensen.
On May 25 , 1967, Eloise was at Obenlander's
apartment , babysitting for Obenlander 's child. Kay
and Jane Barker , on their way to attend a union
meeting , stopped by Obenlander 's apartment where
Kay left her child , Eloise agreeing to babysit for
both children . At the union meeting both Kay and
Barker received authorization cards to pass out
among Respondent 's employees . After the meeting
Kay and Barker, accompanied by Kay's husband
and a friend of Barker , returned to Obenlander's
apartment where they found both Eloise and Oben-
lander . According to Kay , Obenlander asked where
the girls had been and Kay answered that they had
been to a union meeting. Kay further testified that
she then walked over to Eloise and handed her a
union card telling her that Barker and she had
signed one . Obenlander remarked that he did not
blame the girls for wanting to get a union into the
factory. Kay's testimony was corroborated by
Barker as well as Eloise. Obenlander, however,
denied any talk about the Union or his asking them
anything. I credit Kay's version of this conversa-
tion rather than Obenlander's, for reasons dis-
cussed later.
Kay, Barker , and their escorts left , but Eloise and
Obenlander remained for a while at the apartment.
According to Eloise , Obenlander said that "We
probably would be all sorry and we would lose the
profit-sharing , the Christmas bonus , and all the
things that we did have then," but Obenlander de-
nied saying this . Here , too, I credit Eloise's
testimony rather than Obenlander's.
A few days later , according to Kay , Obenlander
asked to see the union card . Kay took one out of
her purse and showed it to him asking him if he
wanted to sign too , to which Obenlander replied, "-
No," foremen were not allowed to join unions. This
conversation was not denied by Obenlander, and I
credit Kay's testimony.
Kay, Eloise , and Barker attended another union
meeting in early July 1967. Shortly thereafter, Kay
overheard Obenlander ask Eloise , " Are you going
to be the union steward if the Union gets in?"
Eloise answered, "Sure, why not?" This conversa-
tion was corroborated by Eloise and both grinders
testified that all -four grinders were present. One of
the grinders , Hensen , called as a witness for the
Respondent , failed to deny that conversation.
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Obenlander, however , did deny such a conversa-
tion . Similarly , on another occasion , both Barker
and Kay testified that Obenlander asked if the girls
were passing out union cards and warned them not
to get caught because they were being watched.
This conversation was allegedly in the presence of
Kay, Eloise , Barker , Hensen , and lapping machine
operator Stanley , and both Hensen and Stanley,
called as witnesses for the Respondent , failed to
deny it . Barker corroborated the conversation
testified to by Kay, but Obenlander denied talking
about union solicitation . On another occasion, ac-
cording to Barker , Obenlander asked Bob Potts, the
setup man in that department , "guess where these
girls were last night?" Kay, Eloise , Hensen, and
Barker were allegedly present and one of them said
that they had been to a union meeting. This , too, is
not denied by Hensen , or by Potts, but is denied by
Obenlander . Kay also testified that about this same
time Obenlander told the girls that they would have
to set up their own machines if the Union got in.
Barker corroborates this testimony and although
Hensen and Stanley were both present , allegedly,
neither denied the conversation . Despite Obenlan-
der's denials of the testimony of Kay , Eloise, and
Barker , I do not credit his testimony , not only
because witnesses for the Respondent failed to cor-
roborate him but also because I find his testimony
unreliable , as discussed later.
Prior to August 1967 , according to the testimony
of Kay , the grinders of the shift following the one in
which Kay, Eloise , Barker, Hensen, and Stanley
worked would arrive around 4 p.m. and stand by
the girls while they were working and finishing up.
They would talk to the girls and ask how the work
went . Also, it was customary for the girls of the first
shift to leave their machines during the last half
hour of work to clean up and be ready to punch out
at the quitting time. There were no limitations on
their use of the washroom nor were they prohibited
from taking their parts to inspection themselves. In
August 1967 , however, Obenlander met with the
entire grinding department and informed them that
certain rules were going to be enforced . No longer
would they be permitted to leave their machines
during the last half hour nor stand by the punchout
clock a few minutes early . They were to stay at
their machines at all times and not talk to anybody.
Visits to the washroom would be limited to one at a
time and such absences would be limited to 5
minutes. Moreover , Potts was to take the parts
done by the grinders to inspection . After the whole
department objected to this procedure, Obenlander
modified his instruction to permit the girls to go to
inspection at least once in the morning and once in
the afternoon . The testimony of both Eloise and
Barker is corroborative of Kay's testimony . Neither
Potts nor Hensen denied it. Obenlander admitted
talking to the grinders about the time spent by them
in washrooms and telling Kay not to be in the de-
partment when another shift was working . There is
no denial , however , of the specifics related above
and I credit that testimony.
Kay further testified that on another occasion in
August 1967 she was talking to employee Myrtle
Carmichael who operated the lapping machine on
the shift following Kay's . Obenlander came up and
told Kay not to stay after work and talk with the
girls on the second shift . When Kay asked "Why
the sudden change," he replied that there had been
too much union talk going around the factory and
that Kay was not to discuss union activities with
anybody or pass out union cards . Obenlander failed
to deny this conversation and I credit Kay's
testimony.
In early September 1967, Obenlander brought
their hair nets to the grinders and told them that
they would have to wear them for their own safety.
According to the undenied testimony of these grin-
ders they were the only ones in the plant who had
to wear them. That afternoon all the grinders spoke
to Respondent Works Manager Krause and com-
plained of Obenlander 's supervision as well as his
new limitations on their activities . When one of the
girls stated that Obenlander had personal problems
and was taking it out on them , Krause replied that
he was aware of Obenlander 's personal problems
and that he would look into the matter. According
to the girls , Krause told them that they were good
employees . Krause, while corroborating the rest of
this conversation, could not remember if he had
told them they were all good workers.
The next morning General Foreman Philips told
the girls in the presence of Potts , according to
Eloise , that he , Philips, did not like anyone going
over his head or Mr. Obenlander's head . This state-
ment is not denied by Philips, Potts , or Hensen and
is corroborated by both Barker and Kay . About the
same time Obenlander came up and , according to
Eloise , told them that he was the foreman and if the
girls had problems that they should tell him about
them . Again, Kay and Barker corroborate this con-
versation while Hensen does not deny it. Oben-
lander, however , does deny speaking with the grin-
ders about their visit to Krause . I do not credit
Obenlander 's testimony.
On September 19, 1967, the grinders and Connie
Stanley took their usual 10:30 break. As they sat
down, Kay said she was going to the washroom and
left. This was corrobarated by both Barker and
Eloise . A conversation then ensued among the girls
during which Eloise said that she "wasn 't going to
kiss anybody's rear end , any foreman or anybody,
for my job. I didn 't say any names . I didn 't refer to
FURNAS ELECTRIC COMAPNY
anybody. It was a statement that I made." Stanley
then asked Eloise, "Are you referring to me?"
Eloise did not reply, the bell rang, and, as break-
time ended, Kay returned. Stanley then asked
Eloise to apologize to her, to which Eloise replied
"I didn't say it was you. I didn't say any names."
Stanley then went to Obenlander. Barker's
testimony was generally corroborative of Eloise's.
According to her, Eloise said that "If there weren't
so many brown nosers or people kissing somebody's
behind none of this would have happened in the
first place. She didn't mention any names." Hensen
testified that she heard Eloise say "We all must
stick together. There is too many brown nosers
around here and we shouldn't be kissing nothing-
Bob Potts and Ed Obenlander. We shouldn't be
kissing their ass." When counsel for the Respon-
dent asked "Did she say that to Cornelia Stanley,"
Hensen answered, "Yes." Also, in answer to a
similarly leading question from counsel for the
Respondent, "Was Kay Vander Valk present during
this conversation," Hensen answered, "Yes."t
Stanley's testimony concerning this incident is
substantially different. According to her, Eloise
looked at her and said "If you continue working
here you'll be kissing Ed and Bob's-." To this
Stanley allegedly replied, "Eloise, you don't mean
that." Eloise answered, "Yes, I do," and asked Kay
"Isn't that right?" Kay replied, "You're damned
right it's right." Stanley further testified that she
asked Eloise, "You don't mean what you said
to me," but Eloise replied, "You're damned right I
mean it." She then went to Obenlander and asked
him to go to Foreman -Philips. When Obenlander
asked "What is wrong?" Stanley allegedly replied,
"Go to Mr. Philips' office and I will tell you there."
Obenlander's version of this incident differs in
material respects from the version given by Stanley.
According to him, Stanley related to him that
Eloise had told her that "if she were to continue
doing her job and listening to what Mr. Obenlander
and Mr. Potts said she would be a brown nose or
worse than that, worse words than that; that she
should go along with the rest of them and not listen
to what Mr. Potts told or ask him to do anything
and this would cause Potts to lose his job for not
having any work." This rather elaborate recital is to
be contrasted with Stanley's testimony to the effect
that she told Obenlander nothing, only asking him
to go to Philips. Moreover, Obenlander's testimony
is at variance with an affidavit given by him to a
Board agent. In that affidavit Obenlander says
nothing about Stanley's complaint to him except
1 Counsel for Respondent persisted in using leading questions to his
own witnesses , despite my repeated warnings that the answers to such
questions would not have much probative value At one point I suggested
that he avoid questions answerable by "Yes" or " No" as such questions
7
that she "came up to me and said that if I didn't get
her out of here at that time she was going to pull
out every hair in Eloise Guenette's head." It is sig-
nificant that Obenlander's statement in that af-
fidavit was given in response to the agent's question
"what happened that day prior to the girls' termina-
tion?" Moreover, Respondent's attorney was
present when the affidavit was given. Finally, I note
that Kay Vander Valk's presence is not mentioned
by Obenlander either in his testimony or in his af-
fidavit.
Obenlander further testified that after Stanley
told him what had happened he took her to see
Philips where Stanley again related what happened.
Philips, however, did not corroborate this version
of the event. According to him, it was Obenlander
who told him that Kay and Eloise intimidated Stan-
ley. Philips then tried to calm Stanley who was cry-
ing and sent her to the washroom. Obenlander went
back to the department.
Later Philips called Obenlander and told him that
Obenlander was going to have to discharge Kay and
Eloise on grounds of insubordination and instructed
him to bring the girls to his office and discharge
them there. Accordingly, Obenlander sent Kay and
Eloise to Philips' office where Obenlander accom-
panied them. There the two girls were discharged,
but the details of the termination interview are re-
lated somewhat differently by the participants.
According to Kay, as they entered Philips' office,
Obenlander turned to the girls and said they were
discharged. When the girls asked for a reason,
Obenlander replied that Stanley was upset and that
the girls had called her names . Kay denied making
any statement to Stanley , explaining that she was
not there. Eloise corroborated Kay's absence.
Philips then said Kay was also insubordinate. Kay
denied being insubordinate, claiming that Oben-
lander had told her that she was one of his best
workers and that she wouldn't have to worry about
losing her job. She then turned and asked "isn't
that right, Ed?" to which Obenlander answered
"yes." Kay still pressed Philips for a reason for the
discharge. Philips then retorted, "How about lack
of work?" Kay answered that they had plenty of
work and that Philips knew it. Thereupon, Philips
replied that Eloise and Kay were " instigators, that
we was instigating everything going on in that de-
partment, and we were causing trouble." Kay then
said that the only troublemakers were Obenlander
and Potts. Philips said, however, that Obenlander
had reported Kay fighting with Potts. Kay explained
that Potts had accused her of turning out wrong
were often improperly leading Although counsel objected vigorously to
my suggestion , I note Wigmore's agreement Wigmore , Evidence §705
(3ded )
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parts . This Kay had denied and , at her request,
Obenlander and she had gone down to the inspec-
tion room where they checked the parts and found
them perfect . When they returned , Obenlander told
Potts the parts were perfect to which Potts replied
that he had checked them , not in the inspection
room , but in the toolroom . They thereupon went to
the toolroom and found that the parts were wrong
according to the toolroom gauges . Obenlander then
instructed Kay to follow Potts instructions, which
she did.
After explaining this incident to Philips, Kay
once again demanded a reason for the discharge,
arguing that her behavior was not insubordinate.
Philips replied , " I don't have to give you a reason."
Philips ordered her to punch out her timecard and
go home . When she went to get her timecard she
found it was already punched out.
Eloise corroborated Kay's version of the incident,
adding that she told Philips that during the break,
while Kay was away in the washroom , Eloise had
said that she, Eloise , was not "going to kiss any-
body's rear end , any foremen or anybody, for my
job," but did not mention any names or refer to
anybody.
Philips testified that after Obenlander and Stan-
ley had come to him with the name -calling story he
spoke to Works Manager Krause and recom-
mended the discharge of Eloise and Kay because
"the girls" were not paying attention to their work
and they had caused Stanley some distress by
name -calling . According to him , the alleged name-
calling constituted a "false, vicious or malicious"
statement and the failure to attend their machines
constituted insubordination giving cause for im-
mediate dismissal under company rules. He further
testified that Obenlander had warned the girls on
the morning of September 19 not to leave their
machines unattended, but when Obenlander
returned to the department after visiting Philips
with Stanley he found Kay and Eloise talking and
reported this to Philips . When Obenlander came to
Philips ' office with Kay and Eloise and told them
that they were discharged , Obenlander allegedly
said they were discharged for leaving their
machines and not paying attention . To this Philips
added that they could be terminated for "in-
timidating" another employee and instructed Oben-
lander to discharge them for insubordination and
see that they get punched out . Philips ' version of
the incident was corroborated by Obenlander.
Neither Philips nor Obenlander attempted any in-
vestigation to determine whether Stanley's version
of the name-calling or Kay's and Eloise 's version
was correct . Moreover, Obenlander admitted that
Philips had spoken to him "on many occasions"
about the machines being idle ever since March or
April 1967. Nevertheless , Obenlander issued no
written warning slips to any of the girls for leaving
their machines , for talking , for idleness , or for turn-
ing their backs on the machines when the machines
were running . Indeed , when asked by counsel for
the General Counsel , " Do you remember turning
their back on the machines at all?" Obenlander
replied, "No." With respect to Obenlander's
testimony that Kay and Eloise talked while work-
ing, I note that Respondent 's, witness , Hensen,
testified that all the grinders talked during work
hours . Barker testified that when Obenlander told
all the grinders to cease talking , they all abided by
this instruction . I note further that Works Manager
Krause admitted that the alleged inattentive
machine operation continued for at least a month
after Kay and Eloise were terminated . No discipli-
nary action was, however , undertaken . Indeed, it
appears that instead Obenlander and Philips in-
stituted a system of relief operators after these ter-
minations.
There is no question that an employer may law-
fully discharge an employee for any reason pro-
vided the reason is not conduct protected by the
Act. Moreover , the General Counsel has the bur-
den of proving that the discharge was for an unlaw-
ful reason . The Board has held, however, that the
General Counsel proves a prima facie case of un-
lawful discharge by showing that:
the discharged employees had made com-
plaints about working conditions which were a
protected , concerted activity, that Respondent
was aware of such complaints and resented
them, that the discharges were made soon after
the complaints were registered , and that
Respondent contemporaneously refused to
give a reason for the discharges to the
discharged employees . These facts warrant the
inference, unless rebutted , that the complaints
were the reason for the discharges . ( Interboro
Contractors , Inc., 157 NLRB 1295, 1301.)
Under such tests it is clear that the General Coun-
sel has, in this proceeding , established a prima facie
case of unlawful discharge. It became incumbent
upon the Respondent to rebut such inference. This
it has failed to do . Obenlander and Philips resented
the action of the grinders complaining to Krause
about working conditions . Both said as much to the
grinders . Eloise and Kay, however, were particu-
larly offensive to Obenlander by reason of their
union activity of the months previous. It seems
clear beyond question that he and Philips regarded
Kay and Eloise as ringleaders . Philips indicated as
much when he called them " instigators, instigating
everything going on in that department and causing
FURNAS ELECTRIC COMPANY
trouble." It is also clear that they undertook to rid
themselves of these two employees, with or without
reason . The testimony of Philips and Obenlander
raises two distinct grounds for the discharge of Kay
and Eloise : insubordination and the making of false,
vicious, or malicious statements concerning Stan-
ley, either of which would be sufficient for their im-
mediate dismissal under company rules.
With respect to their alleged insubordination, I
note the testimony of Obenlander to the effect that
Kay and Eloise were guilty of talking while work-
ing. Respondent's witness Hensen, however,
testified that such behavior was common among all
the girls. As respects inattentiveness during the
machines' operation, I note the testimony of Oben-
lander to the effect that Philips had spoken to him
on many occasions about the machines being idle
ever since March or April of 1967. If this were a
serious offense, it would appear natural for Oben-
lander to have issued some warning slips to some of
the girls for leaving their machines or for idleness in
March, April, June, July, August, or September. He
did not do so, however. If Kay and Eloise were the
outstanding delinquents in this respect, one would
expect further that, with their departure from the
employ of the Respondent, conditions would have
improved, but Works Manager Krause admitted
that this inattentive machine operation continued
for at least a month after Kay and Eloise were ter-
minated and continued without any disciplinary ac-
tion being taken. Moreover, it appears that some of
the offending inattentiveness of the grinders was,
not only permitted by Obenlander but even en-
couraged. Thus, it is undenied that Obenlander told
his grinders
He didn't care if there was any reading going
on in the department ... he didn't care what
we did when he was there, just to watch what
we did when the big wheels were around.
Obenlander himself read newspaper during work
hours. Also, during July and August he repeatedly
called Kay from her work to write personal letters
for him, answer his telephone, and clean his desk.
Hensen also left her machine to stand by Kay whom
she asked to write personal letters for her. Accord-
ing to Kay, even Stanley sold nylons during work
hours. Although Stanley denied doing this on work-
time, I do not credit her testimony. Stanley's denial
is weakened by other portions of her testimony
which were contradicted by Respondent's wit-
nesses. Thus, although Stanley denied that she
talked during work, but that only Kay and Eloise
did so, Hensen testified that all the girls talked.
Also, although Stanley testified that only Kay and
Eloise stopped work before lunch time and
returned late from lunch, Hensen testified that she
herself left before lunch to wash and occasionally
9
returned late. Obenlander, in his testimony, also ac-
cused Kay and Eloise of pacing back and forth on
the day of the discharge despite his warning to
cease. In the affidavit given by him to a Board
agent, however, there is no mention of Kay's pac-
ing. Additional doubt is cast on Respondent's argu-
ment that these girls were discharged for insubor-
dination. Philips testified that he told Krause that
because of the Stanley incident he was going to ter-
minate Kay and Eloise for insubordination. Krause,
however, testified that Philips did not tell him the
reason for discharging them. I conclude that the
absence of Kay and Eloise from their machines or
their inattentive operation of those machines was
not the real reason for their discharge.
Similarly, I conclude that the alleged name-
calling incident which Respondent labels as a false,
vicious, or malicious statement uttered by Eloise
and Kay was not the reason for their summary
dismissal. I have carefully considered the demeanor
of the several witnesses who testified about this in-
cident concerning Stanley. I am persuaded that the
version given by Kay and Eloise and corroborated
by Barker is a more credible one. Not only was
their presentation more persuasive, but it suffered
from none of the inconsistencies and contradictions
which beset the versions given by Respondent's wit-
nesses.
Stanley testified that Eloise told her "If you con-
tinue working here you will be kissing Ed and
Bob's-." Eloise, however, testified that she told
the assembled grinders while Kay was in the
washroom that she, Eloise, "wasn't going to kiss
anybody's rear end" for her job, referring to no one
in particular. Eloise's testimony was corroborated
by Barker. Stanley's testimony was corroborated by
Hensen. But the probative value of Hensen's
testimony is considerably diminished in view of the
fact that her answers were given in response to
leading questions from counsel for the Respondent.
More doubt is cast on Stanley's testimony in view
of Obenlander's contradiction of other portions of
her testimony. Thus, although Stanley testified that
after the alleged name-calling incident she went to
Obenlander and asked him to go to Philips, refusing
to tell Obenlander what had happened until she got
to Philips' office, Obenlander testified that Stanley
told him what had happened and repeated the story
when they went to Philips' office. Obenlander's
testimony, however, is contradicted by an affidavit
which he gave earlier to a Board agent, wherein he
stated only that Stanley came up and told him she
would pull out Eloise's hair if Obenlander did not
get Stanley out of there. Philips, in turn, contradicts
some of Obenlander's testimony. Thus, although
Obenlander testified that Stanley told him and
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Philips what had happened, Philips testified that it
was Obenlander who told him about the incident.
Finally, it appears to me that Philips and Oben-
lander misconstrue the company rule with trespect
to false, vicious, or malicious statements. Stanley's
version of Eloise's statement was merely that by
continuing to work she , Stanley , would be " kissing
Ed and Bob's-." This would hardly appear to be a
"false , vicious , or malicious statement " concerning
Stanley. Rather, such statement, if made, could be
deemed an interference with or coercion of Stan-
ley. Indeed, Philips in his testimony referred to that
statement as "intimidation " of Stanley . But inter-
ference with or coercion or intimidation of another
employee does not give rise to immediate dismissal
under the rules of the Company, but only to the im-
position of "penalty points " warranting a 1-day
layoff.
Assuming , nonetheless , that the alleged state-
ment was made to Stanley and constituted a "false,
vicious, or malicious" statement, it would appear
only reasonable for an employer to satisfy himself
that such a statement was made before summarily
dismissing the alleged offender. Neither Philips nor
Obenlander, however, made such an effort. I am
further convinced that had they made such an ef-
fort they would have found that neither Eloise nor
Kay was guilty of such remarks to Stanley. I base
this conclusion on the fact that Stanley's version
was not corroborated by anyone except Hensen and
Hensen did so only after counsel for the Respon-
dent put that critical issue to her in the form of a
leading question. Barker, on the other hand, did
corroborate the version given by Eloise and Kay,
including the statements that Kay was not even
present during the incident. In effect, this was cor-
roborated by the testimony of both Philips and
Obenlander, neither of whom testified that they
were told that Kay was present.
I conclude that neither insubordination nor the
making of a false, vicious, or malicious statement
was the real reason for the discharge of Eloise and
Kay. Rather, the inference remains that their union
and concerted activities were the real reasons for
the discharges. I have concluded that Kay and
Eloise had engaged in concerted and protected ac-
tivity as well as union activity. Their union activity
consisted of solicitation for the Union. Obenlander
saw Jay give Eloise a union card on May 25, 1967.
He was also aware of Eloise's union activity when
he asked her if she was going to be the union
steward. Reference has already been made to the
several instances in which Obenlander spoke with
Kay and Eloise about their union activities. In addi-
tion, Kay and Eloise also engaged in concerted pro-
tected activity when they as well as the other grin-
ders went to Krause to complain about Obenlan-
der's supervision.2 Obenlander and Philips knew of
this complaint as evidenced by their immediate out-
spoken objection conveyed to the grinders for their
going "over his head." Although all the grinders
had participated in this concerted protected activi-
ty, Eloise and Kay, however, were singled out as
"instigators," a result that is easily understood
because of their known union activities. Thus,
about I week after they had engaged in protected
concerted activity they found themselves
discharged in a termination interview which was
marked by vacillating reasons advanced by Philips
culminating in his remark that he did not have to
give any reason for the discharges. I conclude that
Obenlander and Philips singled out Eloise and Kay,
the known union leaders, and discharged them for
the protected concerted activity in complaining
about work conditions to Krause.
D. The 3-Day Suspension of Alan Carlson
Employee Alan Carlson attended the union meet-
ing on May 25, 1967. There he received about 50
authorization cards which he later passed out and
succeeded in obtaining the signatures of about 20
employees to these cards. In addition, he spoke to
other employees about the Union almost every day.
On December 4, 1967, he left his department
during his coffeebreak period and went to depart-
ment 37 which was about 200 yards away. There
he checked the timecard rack to see if certain
employees who were on a list of names from
the Union were still employed by the Respondent.
He was seen doing this by an inspector who spoke
to him. Respondent's Vice President Swaim walked
by at the same time. On his way back to his own de-
partment, he stopped to speak with some employ-
ees in another department and saw Works Manager
Krause there as well.
Swaim testified that he saw Carlson looking at
the timecards, as a result of which he requested
Krause to find out what Carlson was doing out of
his department. Krause testified that he saw Carl-
son out of his department talking to two other em-
ployees.
On the following day, according to the uncon-
tradicted testimony of Carlson, Carlson's super-
visor, Foreman Brown, asked Carlson if he had left
his department the previous day. Carlson admitted
that he had and Brown told him that this was
against the rules but that he did not think Carlson
would receive a violation warning. Nevertheless, on
the next day, Brown told Carlson that he had to
2 Better Val-U Stores of Mansfield, Inc, 161 NLRB 762
FURNAS ELECTRIC COMPANY
give him a violation warning . To this Carlson
replied , " It was a good thing that ... I wouldn't
receive any days off ... because I would have filed
charges with the NLRB." Continuing, Carlson
testified that Brown "just looked at me a little
strange and he said he was familiar with such activi-
ties because he himself had worked in organizing
unions." Later the dame day, however, Brown
showed Carlson the warning slip which Carlson had
signed . On it had been added , "accumulate 6
points, 3 day's layoff; layoff 12-78-11 per Floyd
Brown ." According to the uncontradicted
testimony of Carlson, Brown told him that Brown
had told Respondent 's industrial relations manager,
Polzien , what Carlson had said and Polzien had
replied, "Well, give him 3 days off." Upon closer
questioning , however , Carlson testified , " He gave
me the impression that he had told Mr . Polzien
what I told him about filing charges and Mr. Pol-
zien to the effect said that in that case we will give
him 3 days off."
Counsel for the General Counsel argues that the
direct and precipitating cause of Carlson 's layoff
was his statement that he might file unfair labor
practice charges , a violation of Section 8(a)(4) of
the Act, citing Hydraflo Valve & Manufacturing Co.,
158 NLRB 730, 736. The question , however, is
whether Carlson 's layoff was due to his threat to
file an unfair labor practice charge.
There is no question but that Carlson 's behavior
in absenting himself from his department was a
violation of company rules . There is also no
question that this violation was his second violation
and that as a result he had accumulated a sufficient
number of penalty points warranting a 3-day layoff.
I am not convinced that the layoff was precipitated
by his threat to file charges . Carlson's testimony
was weakened when he stated that Brown "gave me
the impression that he had told Mr . Polzien what I
told him about filing charges ," and "Mr . Polzien to
the effect said that in that case we will give him 3
days off." The 3-day layoff was fully warranted
under company rules and Carlson himself agreed
that the rulebook penalties were "automatic." His
"impressions " of what Brown had told Polzien and
what Polzien had said lacks sufficient probative
value to establish that the layoff was due, instead,
to his threat. I conclude, therefore, that counsel for
the General Counsel has not sustained his burden
of proof to establish that Carlson's 3-day layoff was
a violation of Section 8(a)(4) of the Act.
E. Respondent's Announcement and Grant of
Employee Benefits Prior to the Election of June 24,
1968
As related earlier in this Decision, the Union held
its first meeting in May 1967. It thereafter con-
11
ducted an organizational campaign at Respondent's
plant and on December 27, 1967, filed a petition
for certification as representative. The election of
January 29, 1968, which was held pursuant thereto
was lost by the Union.
On February 2, 1968, the Union filed objections
to conduct affecting the results of the election. The
Regional Director for Region 13 of the National
Labor Relations Board issued his report on these
objections on May 21, 1968, and directed the hold-
ing of a second election . This report on objections
and direction of a second election was received by
the Respondent on May 23, 1968.
On May 27 , 1968, the management action com-
mittee of the Respondent , consisting of certain su-
pervisory and executive personnel , met to discuss,
among other things, the wage levels and benefits of
Respondent 's employees . It was noted at that meet-
ing that Respondent had not granted a general
wage increase since October 1966 and that its wage
program had been interrupted or deferred because
of union activity.
The minutes of that meeting further state:
It was the concensus of the committee that
since the Company had received the majority
of votes in the Union election held in January
and that we were entitled to a certificate of
election , we would no longer defer action on
improving our employees rates and benefits.
The committee approved a 20-cent-per-hour in-
crease to be effective June 3 , 1968, and, in addi-
tion, approved a change in the paid vacation
schedules to allow 20 -year employees a 4-week va-
cation and 10-year employees a 3-week vacation.
Prior thereto the vacation practice had been to
allow 4 weeks to 25 -year employees and 3 weeks to
15-year employees . The committee also approved
one additional paid holiday and decided to consider
further general wage increases to be effective in
September 1968 if business conditions continued to
improve.
On June 3, 1968, Respondent President Lisman
addressed the employees and informed them that
effective on that date employees would receive a
wage increase and other benefits . Among other
things, Lisman said:
I am sure that many of you are tired of the
long, drawn out union organizing campaign to
which you have been subjected for the past 14
months. The Union started their organizing
drive in April of 1967. Since that time the
company has been working under a serious
handicap, and you have been victimized by it.
Under the law, the company is prohibited from
changing the rates of pay, the fringe benefits,
and other conditions of employment, while a
union organizing campaign is in progress.
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
... I am sure that all of you can appreciate this
unfair position in which the company is placed
and that our delay in making changes and
granting benefits was not one of our choice but
rather due to legal compulsion.
When the Union failed to obtain a majority of
the votes of our employees in the NLRB elec-
tions held on January 29th of this year, we ex-
pected to receive the certificate of election to
which we were entitled , so that we would be
legally free to launch our program of changes
for your benefit . Unfortunately , the Union
refused to accept defeat and raised many
questionable and unfounded objections to the
conduct of the election in order to further
delay any program that we have in mind plac-
ing in effect with our relationship with you.
... We do not intend to have you further vic-
timized by this procedure and have determined
to carry out action to make changes in our em-
ployment relationship which we have felt are
long overdue , not through any fault upon our
part but due to legal barriers which stood in
our path and due to unfounded objections
made by the Union to the NLRB.
... We have now become disgusted with in-
decision on the election outcome and have de-
cided to renew our employee relationships as
they have been in the past.
Lisman also announced the wage increase and addi-
tional paid holiday approved by the committee as
well as the elimination of the Company 's demerit
system and the institution of overtime on a seniority
basis , all of which represented improvements in the
terms and conditions of employment for Respon-
dent 's employees.
Lisman's talk to the employees was followed by a
letter signed by Industrial Relations Director Pol-
zien dated June 17, 1968 , in which the "improved
benefits " in the employees ' terms of employment
were elaborated on and explained.
The second election was held on June 24, 1968,
and once again the Union lost. The complaint in
Case 13-CA-8723 alleges that the Employer 's offer
and grant of certain specified benefits were made
"in order to induce its employees to refrain from
becoming or remaining members of the Union
and/or from giving support or assistance to the
Union " in violation of Section 8(a)(1) of the Act.
The basic principles affecting an employer 's right
to confer benefits to his employees while a
representation election is pending have been stated
repeatedly by the Board:
Although the granting of benefits during the
relevant period preceding an election is not
necessarily cause for setting aside an election,
the Board has set aside elections where it ap-
pears that the granting of the benefits at that
particular time was calculated to influence the
employees in their choice of a bargaining
representative. In the absence of evidence
demonstrating that the timing of the announce-
ment of changes in benefits was governed by
factors other than the pendency of the elec-
tion, the Board will regard interference with
employee freedom of choice as the motivating
factor. The burden of establishing a justifiable
motive remains with the employer. (The Bal-
timore Catering Company, 148 NLRB 970,
973.)
The Board has further held that additional bene-
fits granted while objections to a representation
election are pending and unresolved, and with the
possibility that a second election may be directed
by the Board, would be suspect. Northwest En-
gineering Company, 148 NLRB 1136, 1145. Here
the direction of a second election was more than
a possibility. Respondent had received such direc-
tion on May 23, 1968. Four days later the Re-
spondent's management action committee dis-
cussed increased employee benefits and recom-
mended the changes which were announced to the
employees on June 3, 1968. There is no doubt,
therefore, that Respondent's grant of new benefits
as well as their announcement was made by the
Respondent knowing full well that a second elec-
tion had been directed. Under such circumstances,
counsel for the General Counsel has established a
prima facie case that the grant of these benefits at
such a time was a violation of Section 8(a)(1) of
the Act, interfering with the exercise of a free
choice in the June 24 election. The burden then
passed to the Respondent to establish a justifiable
motive.
Counsel for the Respondent argues that the Com-
pany "was experiencing a serious and vital person-
nel problem for failing to implement the recom-
mendations of the Management Action Committee.
Other industries in the area were attracting appli-
cants for employment on the basis of their higher
wages and more liberal fringe benefits. Conditions
became so bad that the company was not getting
any responses to their advertisements for help, and
no applicants for employment were appearing at
the door of the personnel office."
The record, however, lacks sufficient evidence of
probative value to support the argument of counsel
for the Respondent.
In support of its argument that the grant of addi-
tional benefits was motivated by business con-
FURNAS ELECTRIC COMPANY
siderations, Respondent submitted copies of four
want ads it placed in local newspapers between
September 24 and October 29, 1967. One ad called
for a secretary, two ads called for missile guidance
controllers, aircraft crew chiefs, radar technicians,
ship electricians, electrical technicians, stock selec-
tors, and material handlers. The fourth ad called for
an assembler-wirer and inspectors for the punch
press department. In none of these ads was any
specific salary shown. The ad for a secretary merely
said that the salary would be "commensurate with
ability and previous experience." The ad for assem-
bler-wirers and inspectors merely said "These
openings pay well and our employees enjoy an ex-
ceptional benefit program including regular wage
reviews." The other two ads said nothing about
benefits or pay.
Counsel for the Respondent also submitted a
number of newspaper ads placed by other em-
ployers in the area during May and June 1968
These were ads for assemblers, drill press opera-
tors, machinists, food packaging, warehousing, and
processing trainees, chemical operators, unskilled
male laborers, printers, cost accountants, helpers
plant trades, light assembly workers, electronic
testers, beginning draftsmen, and clerk typists. In
all of these ads the hourly rate was prominently dis-
played.
Counsel for the Respondent also points to the
testimony of Polzien on this issue:
Q. (By Mr. Cusack))Mr. Polzien, were
these exhibits 23 and 24A to 24T inclusive
[the help wanted ads placed by the Respon-
dent as well as by competitive employers in
that area] considered by the management ac-
tion committee in the discussion of the wage
program in the period from September of
1966-strike that-in the period from the time
they appeared in those newspapers and when
the wage increase was granted on June 3, 1968?
A. They were.
Other than the answer of Polzien to counsel's
leading question , the record is devoid of any
testimonial evidence establishing that Respondent
had difficulty filling its jobs because of competitive
pay rates from local employers. The mere conclu-
sionary statement of witness Polzien quoted above
is, in my opinion , insufficient evidence of Respon-
dent's "serious and vital personnel problem." If in-
deed there was a " serious and vital personnel
problem" there should have been some direct
testimony on that score. The mere fact that the
Company placed a few ads for help in September
and October 1967 does not necessarily lead to the
conclusion that the needs continued until May and
June of 1968 when the ads of competing employers
13
appeared. Moreover, the Respondent's labor needs
were not at all like the occupations advertised for
by the competing employers of that area. Finally,
there is no evidence that the Respondent had any
difficulty in filling the positions for which it ran ads.
Polzien's statement that the Company's ads and
the competing employer's ads were considered by
the management action committee when it met to
discuss employee benefits is not corroborated. One
would expect that such motivation would have been
mentioned to the employees when Lisman ad-
dressed them. Lisman, however, made no mention
whatever of any difficulty obtaining help or retain-
ing help. His repeated reference was merely to the
delayed benefits which he thought the employees
deserved. Moreover, he specifically expressed dis-
appointment with the indecision of the election out-
come and told them that the Company's "delay in
making changes and granting benefits was not one
of our choice but rather due to legal compulsion,"
adding that the Union refused to "accept defeat"
and raised "unfounded objections to the conduct of
the election" to delay Respondent's program, thus
emphasizing its generosity while blaming the Union
for any delay in benefits. The timing of these
opinions so near the date fixed for the second elec-
tion makes it evident to me that Respondent's pur-
pose was to induce employees to vote against the
Union, N.L.R.B. v. Exchange Parts Co., 375 U.S.
405, and constitutes an interference with the rights
of employees protected by the Act, in violation of
Section 8(a)(1), requiring a remedial order.
F. Other Unfair Labor Practices
The complaint, as amended, in Case
13-CA-8096 alleges a number of other activities by
the Respondent constituting unfair labor practices
within the meaning of Section 8(a)(1) of the 'Act.
Thus, at paragraph VII of the complaint it is alleged
that the Respondent instituted a change from
biweekly paychecks to weekly paychecks. Record
evidence indicates that this change was instituted
around September 15, 1967, long before the Union
petitioned for certification as representative of the
Respondent's employees and there appears to be no
connection between it and the union campaign. I
shall, therefore, recommend dismissal of this allega-
tion of the complaint. At paragraph VIII(c) it is al-
leged that Obenlander told the employees on or
about May 25, 1967, that there would be fixed
production schedules if the Union became their
bargaining agent. At paragraph VIII(d) it is alleged
that Obenlander told the employees on June 1,
1967, that they would not be allowed to get away
with mistakes if the Union became their bargaining
agent . At paragraph VIII(f) it is alleged that Super-
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
visor Philips on September 18, 1967, threatened
employees with discharge, if- they protested in con-
cert. There is insufficient record evidence to sup-
port these allegations and I shall therefore recom-
mend the dismissal of such allegations. Also, at
paragraph VIII(g) of the amended complaint it is
alleged that the Respondent threatened on January
22, 1968, that the selection of the Union might
have serious effects on the employees. Such a state-
ment was made, according to record evidence,
shortly before the January election. I do not con-
sider such a statement, however, to be a threat to,
interference with, intimidation of, or coercion of
the employees within the meaning of Section
8(a)(1). Certainly it cannot be denied that the
results of an election "may have serious effects" on
the employees participating, but this does not
necessarily mean harmful effects. Paragraph
VIII(h) of the amended complaint alleges that the
Respondent threatened on January 22 that the em-
ployees would lose benefits and legal rights if they
joined the Union. Record evidence indicates that
on that day the Respondent told its employees
You will be paying dues and assessments as
well as losing your freedom. The Union would
undoubtedly demand a contract that requires
everyone to join the Union and pay dues
whether you want to or not. If you fail to pay,
they will probably enforce their right to de-
mand that the Company discharged you. You
will lose your right to conduct your own affairs
in a way you feel is best for you. You would
have to do business through a middleman-the
union official who now has great power and
does not readily give it up. If you fail to follow
the union rules , you can be fined or expelled
from the union.
These comments in my opinion do not constitute
any threat of what the Employer would do if the
employees joined the Union. At most it constituted
the Employer's opinion of what the Union might do
and not what was within its power to make come
true. Lenkurt Electric Company, Inc., 169 NLRB
941. 1 shall therefore recommend the dismissal of
this allegation of the amended complaint. Finally,
paragraph VIII(i) of the amended complaint alleges
that President Lisman on January 22, 1968, told
the employees they could lose their jobs for failure
to follow union rules if the Union became their bar-
gaining agent. Record evidence indicates that on
that day a letter signed by Lisman was distributed to
the employees in which they were told that if they
joined the Union they would "lose your freedom
through restrictions under union rules that may be
placed upon your right to improvement, by transfer
to another department .... lose your right to
refuse to join a union which right is given you
under Section 7 of the National Labor Relations
Act ... lose your right to continuous employment,
wages and security in your job if a strike is called."
Here , too, the disadvantages of union membership
expressed in terms of losses are not within the
power of the Respondent to effectuate but are
merely its predictions of what the Union can do to
the employees . I shall recommend the dismissal of
this allegation of the amended complaint as well.
The complaint in Case 13-CA-8069 , however,
alleges a number of other incidents as unfair labor
practices . Although these have not been
categorized by any of the parties as issues in this
proceeding , they were , nevertheless , fully litigated.
Thus, I have found on the basis of the testimony ad-
duced at this hearing that the Respondent, through
its admittedly supervisory agent Obenlander, told
the employees they would have to set up their own
machines if the Union got in . This represented an
additional job duty and supports the allegation at
paragraph VIII(a). I have also found that Oben-
lander told Eloise that the employees would
"probably be all sorry and . .. would lose the
profitsharing , the Christmas bonus, and all the
things that we did have then ." This supports the
complaint 's allegation at paragraph VIII(b). I have
also found that Obenlander told the girls that they
were being watched and warned them not to get
caught passing out union cards , supporting the
complaint at paragraph VIII(e).
I have also found that Obenlander interrogated
the employees concerning their union membership
activities and desires , supporting the complaint's al-
legation at paragraph IX. These activities of the
Respondent are clear violations of Section 8(a)(1)
of the Act in that they created an atmosphere of
fear tending to interfere with the employees' exer-
cise of their rights under the Act and require a
remedial order.
IV. THE OBJECTIONS TO THE ELECTION OF JUNE 24,
1968
A. Objection I
Objection 1 by the Union to conduct affecting
the outcome of the election held on June 24, 1968,
alleges that the Company
resorted to the use of deceitful and misleading
campaign utterances ... to create an at-
mosphere of fear amongst its employees, calcu-
lated to influence their vote against the Union
by repeatedly misrepresenting to its employees,
that dire consequences were sure to follow
should they vote in favor of union representa-
tion in the election.
FURNAS ELECTRIC COMPANY 15
Under III(E) above I have concluded that the
Company had predicted additional job duties and
the loss of certain employee benefits if the Union
got in , and that these activities were committed
during the critical period which in this case began
running from the date of the first election in Janua-
ry 1968. (The Singer Company, 161 NLRB 956, fn.
2.) Such activities have been found not only viola-
tive of Section 8(a)(1) of the Act but are also
reason for setting aside the election held on June
24, 1968, and I recommend that Objection I be
sustained.
B. Objection 2
The Union alleges in Objection 2 that the Com-
pany
engaged in activities deliberately calculated to
convey to its employees that the designation of
the Union as their collective bargaining agent
was futile; that the employees had nothing to
gain , and much to lose, because the Company
could refuse to negotiate a labor agreement
with the Union, and that they would not sur-
render their right to having the final word on
all the decisions affecting its employees; and
finally, that the outcome of the election could
not change this fact.
I find insufficient evidence in this record to sup-
port this objection of the Union nor does counsel
for the General Counsel or counsel for the Charg-
ing Party cite record evidence in their briefs to sup-
port this objection. I recommend this objection be
overruled.
C. Objection 3
The Union's Objection 3 alleges that the Com-
pany
appeared at the plant gate on the morning of
the election to distribute anti-union literature
which gave cause to many employees to be-
lieve they were under surveillance with the
result that they were afraid to stop and take
literature from the union agents, and, inti-
mated other employees who were assisting the
union agents in the distribution of literature to
the extent that they felt their jobs were in
jeopardy and prematurely left the distribution
to enter the plant.
Record evidence indicates that on the morning of
June 24, 1968, Respondent President Lisman and
other managment representatives stationed them-
selves on public property in front of the Company's
parking lot. There, as company employees came to
work, they handed them a mimeographed sheet
signed by Lisman which urged the employees to
vote against the Union at the election that was to
be held that day. Union organizers also stationed
themselves in front of the Company's parking lot
and also distributed circulars to the employees. The
union representatives , however , were stationed be-
hind the Company's representatives so that the em-
ployees were contacted by the company representa-
tives before reaching the union representatives.
One union representative testified that some of the
employees accepted the management circulars but
did not stop for the union circulars as they normally
had done before. He added that Lisman and the
other management representative sometimes talked
to the employees as they stopped to take the circu-
lars. The nature of their conversation or the length
of these conversations is not indicated. The union
representative admitted, however, that no one con-
nected with management stopped or impeded him
from distributing his handbills that day.
Counsel for the Respondent urges that this objec-
tion to the election be overruled citing the fact that
the management activities took place off company
property, in the same area in which union represen-
tatives were distributing their campaign literature,
and, that the union representatives were not im-
peded by management representatives. He agrees
that the Employer could not address a captive au-
dience in the 24-hour period prior to the election
but argues that this was not a captive audience and
Respondent's behavior was merely an exercise of
his right of free expression under Section 8(c) of
the Act.
Counsel for the Charging Party argues, however,
... the Furnas Electric Company is a pater-
nalistic company in which the President of the
Company occupies an exalted position in rela-
tion to the employees. The Union urges that
the Board recognize that the personal ap-
pearance of the highest company executive to
electioneer as employees enter the plant on
election day had the effect of interfering with
the fair conduct of the election by the Board.
The Board in Peerless Plywood has outlawed
employer captive meetings in a 24-hour period
before the election. Mr. Lisman by stationing
himself in front of the plant at a route which
employees must cross circumvented the semi-
isolated period the Board imposes on cor-
porate executives and imposed himself beyond
that which the Board should tolerate and inter-
fered with the fair conduct of the election.
I do not agree with the position of counsel for the
Charging Party. The Peerless Plywood Company
case , 107 NLRB 427, held that:
... Employers and unions alike will be
prohibited from making election speeches on
Company time to massed assemblies of em-
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees within 24 hours before the scheduled
time for conducting an election . [ Emphasis
supplied. ]
Counsel for the Charging Party would equate the
distribution of management circulars with the
deliverance of a speech . Assuming that such equa-
tion is proper it remains undisputed that it took
place not on company time but before the em-
ployee 's arrival at his work station . Moreover, it
took place off company property , was not to a
massed assembly , and admittedly was not coercive.
I conclude that the doctrine of Peerless Plywood
does not relate to the behavior of management
representatives on election day as revealed by this
record.
Nor can I agree with the argument of counsel for
the Charging Party that Lisman 's mere appearance
to distribute inoffensive antiunion literature on
election day had the effect of interfering with the
fair conduct of the election . I know of no decision
supporting this theory nor has counsel for the
Charging Party cited any. Counsel for the Charging
Party argues that Lisman occupied an "exalted
position ." There is no record evidence to support
this argument, but even if there were I know of no
rule which forbids electioneering by "an exalted
position" holder . Compare, for example, Mall Tool
Company, 112 NLRB 1313, where the Board
refused to invalidate an election although the em-
ployer 's president visited the plants in two different
cities and talked individually to about half of the
employees at their places of work but without
threats or promises of benefits . The Board refused
to carve out any special conditions for that com-
pany president . Here I see no reason for carving out
any special exception for Respondent President
Lisman and I find no authority or logic for creating
special exceptions where the electioneering took
place on election day and in conformity with the
Peerless Plywood limitations . I shall therefore
recommend that Objection 3 to the election be
overruled.
D. Objection 4
Here the Union objects, claiming that
The Company ... impinged upon the free cho-
ice of its employees in the election by an-
nouncing wholesale changes in Company pol-
icy which directly affected the employees; the
promise and implementation of new benefits
throughout the critical period , up to and in-
cluding the day of the election, all calculated
to influence and control the outcome of the
election.
In III(D), above , I have discussed the Company's
announcement and grant of wage increases and cer-
tain employee benefits which occurred on June 3,
1968, and were explained in a letter from Industrial
Relations Manager Polzien 2 weeks later , on June
17. 1 have found that the Respondent has not
satisfied its burden of establishing a justifiable mo-
tive for the benefits promised and given the em-
ployees shortly before the election . Indeed, I have
concluded that its purpose was to induce employees
to vote against the Union in the upcoming election.
Such activity is an interference with employee
freedom of choice and constitutes reason for setting
aside the resulting election . I recommend that Ob-
jection 4 be sustained.
E. Objection 5
The Union's Objection 5 alleges that
The Company ... interfered with the orderly
procedure of the election when they omitted
names of eligible employees from the list of
eligible voters, changed the status of others,
and instructed their agents to challenge their
right to vote ; attempted to interfere with the
procedure for voting agreed to by both parties
and submitted to the Board for prior approval,
all of which were calculated to intimidate the
employees involved and to influence their cho-
ice in the election.
The record contains no evidence of the allega-
tions contained in this objection. I therefore recom-
mend that Objection 5 be overruled.
CONCLUSIONS OF LAW
1. By its promulgation of no -solicitation and no-
distribution rules prohibiting solicitation and dis-
tribution of literature on company premises without
regard to whether the solicitation was on work or
nonwork time or the distribution was in work or
nonwork areas, the Company has engaged in unfair
labor practices within the meaning of Section
8(a)(1) of the Act , and its later modification of
these rules was not sufficient to correct their il-
legality.
2. By its threat of additional duties and lessened
employee benefits if the employees vote the Union
in, the Company has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the
Act.
3. By telling the employees that their union ac-
tivities were being watched , the Company created
the impression of surveillance in violation of Sec-
tion 8 (a)(1) of the Act.
4. By interrogating its employees about union
activities and desires , without demonstrating any
legitimate justification therefor , the Company vio-
lated Section 8(a)(1) of the Act.
FURNAS ELECTRIC COMPANY 17
5. The Respondent's discharge of employees
Eloise Guenette and Kay Vander Valk interfered
with their right to engage in concerted activities for
the purpose of mutual aid or protection in violation
of Section 8(a)(1) of the Act and discriminated
against them in order to discourage membership in
a labor organization in violation of Section 8(a)(1)
and 8(a)(3) of the Act.
6. The Company's announcement and grant of
employee benefits prior to the election of June 24,
1968, was for the purpose of inducing employees to
vote against the Union and constituted an inter-
ference with the exercise of the rights guaranteed
by the Act in violation of Section 8(a)(1) of the
Act.
7. The aforesaid unfair labor practices are unfair
labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
8. The Company's 3-day suspension of employee
Alan Carlson was not motivated by his threat to file
charges with the Board and was not, therefore, in
violation of Section 8(a)(4) of the Act.
THE REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, I shall recommend
that it cease and desist therefrom and take certain
affirmative action which I find necessary to effectu-
ate the policies of the Act.
Having further found that the Respondent
discharged employees Eloise Guenette and Kay
Vander Valk in violation of Section 8(a)(1) and
(3) of the Act, I shall recommend that the Respon-
dent offer them immediate and full reinstatement to
their former or substantially equivalent positions
without prejudice to their seniority or other rights
and privileges and make them whole for any loss of
earnings suffered by reason of the discharge by pay-
ment of a sum of money equal to that which they
normally would have earned as wages from the date
of discharge to the date of Respondent's offer of
reinstatements less any net earnings during said
period (Crossett Lumber Co., 8 NLRB 440) and, in
the manner described in F. W. Woolworth Com-
pany, 90 NLRB 289, together with interest thereon
at the rate of 6 percent per annum as set forth in
Isis Plumbing & Heating Co., 138 NLRB 716.
Having found that the Respondent violated Sec-
tion 8(a)(1) of the Act by its promulgation and
maintenance of a rule prohibiting union solicitation
during nonworktime and distribution of union
literature in nonwork areas, I shall recommend that
it cease and desist from maintaining such rule and
notify its employees appropriately.
Finally, consistent with the terms of the order
consolidating Case 13-RC-11356 with the two
complaints, I shall order that Case 13-RC-11356
be severed and remanded to the Regional Director
for Region 13 for further action in accordance with
Section 102.62(a) of the Board's Rules and Regula-
tions.
[Recommended Order omitted from publica-
tion. J