McGraw-Edison Co.

National Labor Relations Board - Board Decisions

Feb 4, 1975

216 N.L.R.B. 460 (N.L.R.B. 1975)

460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McGraw-Edison Company and International Union , [Direction of Second Election and Excelsior foot-
United Automobile, Aerospace, & Agricultural note omitted from publication.]
Implement Workers of America, UAW. Cases 17-
CA-5918 and 17-RC-7401
February 4, 1975
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY ACTING CHAIRMAN FANNING, AND
MEMBERS KENNEDY AND PENELLO
On September 5, 1974, Administrative Law Judge
Thomas S. Wilson issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the Charging
Party-Petitioner filed cross-exceptions and a support-
ing brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order,' as modified
herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that Respondent
McGraw-Edison Company, Kirksville, Missouri, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph 2(b) of
the recommended Order:
"(b) Remove from each of the employee personnel
files the written reprimands given to the five
employees who received such warnings between
November 20, 1973, and January 3, 1974."
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the election held
herein on February 7, 1974, be, and it hereby is, set
aside, and that Case 17-RC-7401 be remanded to
the Regional Director for Region 17 for the purpose
of conducting a new election at such time as he
deems that circumstances permit the free choice of a
bargaining representative.
216 NLRB No. 82
MEMBER KENNEDY, concurring:
I concur in the result.
1 The Respondent contends, inter aha, that the Administrative Law
Judge erroneously considered events which occurred before the petition was
filed in recommending that the election be set aside. However, not only did
the Respondent violate Sec. 8(axl) following the filing of the petition, as the
Administrative Law Judge found, thereby interfering with the election and
requiring that it be set aside, but in particular its discriminatory
interpretation of its no-solicitation rule and its later rule banning all
solicitation in the plant were not repudiated and were maintained during the
preelection period. The maintenance of unlawful restrictions on union
activity is not rendered unobjectionable by the mere circumstance that there
are no specific instances of enforcement during the period in question. E.g.,
National Electric Coil Division, McGraw Edison Company, 188 NLRB 451
(1971).
We do not adopt the Administrative Law Judge's comments concerning
his ability to interpret precedent. Unlike the Administrative Law Judge, we
neither reach not pass upon the impact of showing "The Spnngfield Gun"
to employees.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the chance to give
evidence, the National Labor Relations Board found
that we, McGraw-Edison Company, Kirksville,
Missouri, violated the National Labor Relations Act,
and ordered us to post this notice and to keep our
word about what we say in this notice.
The law gives you the right:
To form, join, or help unions
To choose a union to represent you in
bargaining with us
To act together for your common interest
or protection
To refuse to participate in any or all of
these things.
The Board has ordered us to promise you that:
WE WILL NOT interfere with your rights.
WE WILL NOT ask you whether you are a union
member, or are helping International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, or any
other union.
WE WILL NOT ask you about your union
sentiments.
WE WILL NOT order our supervisors to issue
written warnings to employees suspected of
engaging in union activities.
WE WILL NOT instruct our employees not to
accept union leaflets.
WE WILL NOT maintain surveillance over
employees suspected of engaging in union activi-
ties.
MCGRAW-EDISON CO. 461
WE WILL NOT order employees to promptly
report any union solicitation.
WE WILL NOT issue permanent written warn-
ings, contrary to past plant practice, to union
sympathizers when suspected of engaging in
union activities.
WE WILL NOT otherwise threaten union sympa-
thizers with discharge for engaging in union
activities.
WE WILL NOT harass our employees suspected
of engaging in restroom "union meetings."
WE WILL rescind our illegally broad no-solicita-
tion rule.
WE WILL NOT disparately enforce our no-
solicitation rule to ban prounion solicitation but
to encourage antiunion solicitation.
WE WILL NOT interrogate our employees about
union activities.
WE WILL NOT solicit grievances from union
sympathizers with a promise to correct them.
WE WILL NOT tighten up plant rules in order to
discourage union activities.
WE WILL NOT, in any other manner, interfere
with, restrain, or coerce our employees for the
purpose of interfering with the rights of the
employees to engage in union activities as
guaranteed in Section 7 of the Act.
WE WILL NOT discharge you, lay you off,
transfer you to other jobs, or otherwise discrimi-
nate against you because you are a member of the
aforementioned Union, or any other union, or
because you have supported such a union.
WE WILL remove from the personnel folders of
five union employees the written warnings issued
by us between November 20, 1973, and January
3, 1974.
WE WILL offer to David L. Lewis his former job
or, if that job no longer exists, a substantially
equivalent position, without any loss of seniority
or other rights and privileges.
WE WILL reimburse David L. Lewis and
Delbert L. Downen for any loss of earnings they
may have suffered because of our discrimination
against them , together with interest thereon at 6
percent per annum.
MCGRAW-EDISON
COMPANY
(Employer)
DECISION AND REPORT ON OBJECTIONS
STATEMENT OF THE CASE
THOMAS S. WILSON, Administrative Law Judge: Upon a
charge duly filed on February 1, 1974, and amended on
February 6, 1974, and again on March 11, 1974, by
International Union, United Automobile, Aerospace, &
Agricultural Implement Workers of America, UAW,
herein referred to as the Charging Party or the Union, the
General Counsel of the National Labor Relations Board,
referred to herein as the General Counsel I and the Board,
respectively, by the Regional Director for Region 17
(Kansas City, Missouri), issued its complaint dated March
19, 1974, against McGraw-Edison Company, herein
referred to as the Respondent or Employer.
The complaint alleged that Respondent had engaged in
and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (3)
and Section 2(6) and (7) of the National Labor Relations
Act, as amended, herein referred to as the Act.
Respondent duly filed its answer admitting certain
allegations of the complaint but denying the commission of
any unfair labor practices.
By order dated March 21, 1974, the Regional Director
for Region 17 consolidated the above cases for the
purposes of hearing, ruling, and decision by an Adminis-
trative Law Judge on the merits of the Union's objections
to the election held February 7, 1974, pursuant to a
Stipulation for Certification Upon Consent Election filed
by said Union and approved by the said Regional Director
on January 14, 1974. At the hearing, the Union withdrew
all objections to that election other than those charged as
unfair labor practices in the complaint and the showing by
Respondent on February 4 of the movie entitled "The
Springfield Gun" to all its employees.
Pursuant to notice , a hearing on such issues was held
before me in Kirksville, Missouri, on April 16, 17, 18, and
19 and May 6, 7, and 8, 1974. All parties appeared at the
hearing, were represented by counsel, and were afforded
full opportunity to be heard, to produce and cross-examine
witnesses, and to introduce evidence and material pertinent
to the issues.2 At the conclusion of the hearing, oral
argument was waived. Briefs were received from General
Counsel, Respondent, and the Union on June 21, 1974.
Upon the entire record in the case and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
I. BUSINESS OF RESPONDENT
The complaint alleged , the answer admits , and I find
that:
At all times material herein, McGraw-Edison Company,
a Missouri corporation, has maintained a facility (herein
called the plant) in Kirksville , Missouri, where it is engaged
i This term specifically includes the attorneys appearing for the General
Counsel at the hearing.
2 Both Respondent and General Counsel have filed motions to correct
the record in various respects . No objections having been filed to either
motion, the motions are hereby granted.
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the manufacture of electrical appliances. Respondent in
the course and conduct of its business at the plant annually
purchases goods and materials valued in excess of $50,000
directly from suppliers outside the State of Missouri.
Respondent annually makes sales from the plant valued in
excess of $50,000 directly to customers located outside the
State of Missouri.
Accordingly, I find that Respondent is now, and at all
times material herein has been, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
IT. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aerospace, &
Agricultural Implement Workers of America, UAW, is a
labor organization admitting to membership employees of
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
1. Interference , restraint , and coercion
a. November 19, 1973
On November 18, 1973, UAW Organizer Elnora Purcell
met with seven of Respondent 's employees in Kirksville,
Missouri . At this meeting the group discussed the possibili-
ty of organizing the employees of Respondent 's plant into
the Union . They decided to start such an organizing
campaign . They discussed the method of proceeding with
such campaign . The seven employees organized themselves
into an in-plant organizing committee and elected Kenneth
Santee as the chairman of the dayshift organizing commit-
tee and employee Roberta Thompson as the chairperson of
the night shift organizing committee . They also decided to
notify Respondent by letter of their intent and of the
names of the employees constituting the in-plant organiz-
ing committee.
At 8:15 a .m. on November 19, Respondent received the
following special delivery, registered , return receipt letter
on union stationery over the signature of Elnora R.
Purcell:
This is to inform you that a Union organizing
campaign is in progress at the McGraw-Edison
Kirksville Plant on behalf of the International Union,
United Automobile, Aerospace and Agricultural Im-
plement Workers of America, UAW.
Roberta Thompson , Janet Johnson , Kenneth Santee,
Delbert Downen , Jim Ownbey, Bobby Kirkpatrick,
and Gerald Hughes are members of the UAW in-plant
organizing committee. Other employees will be added
from time to time without formal notice. This commit-
tee and other employees will be soliciting signatures on
authorization cards, distributing union literature and
participating in other protected activities.
If the company acting by and through its officers
and/or agents, restrains , coerces, or otherwise inter-
feres with its employees in the exercise of their rights
under Section 7 of the Act, charges will be filed by
UAW.
Thus began what Plant Manager Floyd Winter described
as a "bad day." Winter has been Respondent's plant
manager at the Kirksville plant since its inception some 19
years before. He had experienced union organizing
campaigns before, particularly in 1967 when IBEW
unsuccessfully attempted to organize the Kirksville em-
ployees as part of a divisionwide organizing effort by that
union. He came through that campaign unscathed and was
proud of the fact that the Board found that no unfair labor
practices were committed at Kirksville.
As soon as possible after the receipt of this letter, Winter
was on the telephone with Respondent's labor relation
attorney in St. Louis requesting, among other things, that
said attorney send him a list of "Do's and Don'ts" for
supervisory personnel during a union organizing campaign.
At 5 p.m. on November 19, Winter had his whole
supervisory staff down to foreman and assistant foreman
assembled for a meeting in the lunchroom. He first read
the assembled supervisors the above letter, including the
names of the employees on the in-plant organizing
committee. Winter had with him the company rule book
containing the code of conduct for employees. He began
his talk by saying "Gentlemen, we want to do everything
that is legal . We want to do nothing that is illegal. I do not
have the information that I will have for you tomorrow
morning." He then informed the group that his labor
attorney was sending him a complete list of "Do's and
Don'ts" of permissible supervisor's activities during organ-
izing campaigns which he would distribute to them the
following day. He passed out copies of the rule book to the
supervisors for their use. Winter specifically called atten-
tion to rules 2, 17, and 23 which read as follows:
2 - Deliberately restricting output.
17 - Working time is for work. Therefore, there shall
be no soliciting of membership, pledges, circulating
petitions or distributing handbills during work time.
23 - Unauthorized posting or removal of notices or
tampering with bulletin boards in any way.
Winter admits telling the group that "we will give
warning slips wherever necessary and wherever justified to
keep the people in their own departments and on their jobs
and at their machines." Eldon Clay, then a foreman who
was discharged on December 28, testified that Winter also
stated that "those people organizing this are not that smart,
I think we can get rid of them by giving warning slips
wherever necessary."3 In answer to a question about the
right to pass out literature, Winter told the group the
Union "could pass out literature on company premises
before work, on coffee break, at lunch hour, after work, but
they could not pass out literature on company property on
company time, and to remember that." With that the three-
quarter-hour meeting adjourned.
3 In the light of Winter's own actions the following day, I have to credit
the testimony of Clay who also convinced me that he was a truthful witness.
MCGRAW-EDISON CO. 463
b. November 20 - Kenneth Santee
At 3:40 p.m. the next day, November 20, as though to fit
his actions to his words, Winter found trucker Kenneth
Santee in the packing department talking to employee
Jeanne Meyers about 20 yards outside Santee's working
area. As Santee was leaving, Winter caught him by the arm
and said, "If I catch you out of your department again, I
will fire your god damned ass." Winter thereupon walked
to Plant Superintendent Heaberlin's office, filled out a
written warning slip, had Heaberlin sign it also , and gave it
to Santee . Admittedly, this was, at most , only the third
written warning Winter had ever given in his 19 years as
plant manager.
Winter testified that prior to catching Santee's arm, he
had "timed" Santee 's conversation at between 5 to 8
minutes . Winter knew from the union letter that Santee
was one of the organizing committee which had not made
him happy. He made no effort to determine the subject
matter of the conversation.
On the other hand , Santee testified that on this occasion
he was delivering a message from Meyers' mother-in-law
that Meyers telephone her home before 4 p.m. There were
no rules against talking or against delivering such messages
to employees.
About a week thereafter, Santee was transferred from his
trucking job, which permitted him to travel around the
plant as required , to a welding job which paid him about
$1 more per day but also restricted him to one location in
the plant.
Winter acknowledged that he had not been "happy" to
learn that Santee was a member of the union committee.
He also thought , incorrectly in fact , that Santee was
engaged in union activities at the time.
Hence it is clear that Winter gave Santee this written
reprimand in order to apprise him of Winter 's unhappiness
and to warn him of the dangers inherent in engaging in
union activities . The reprimand thus was an attempt to
interfere , restrain , and coerce in violation of Section
8(ax 1).
Winter's reprimand of November 20 also demonstrated
to the supervisory staff exactly what he had meant on
November 19 by his orders about giving written repri-
mands "when necessary ." Actions often speak louder than
words.
Furthermore, the giving of a written reprimand for a first
'.offense" also amounted to a definite change in working
conditions in the plant as it had long been the general
practice to give several oral warnings before resorting to a
written reprimand.
This was merely the first rule Winter tightened up upon
being advised of the advent of the union campaign.
Later that afternoon , Winter distributed copies of "Do's
and Don'ts" to all his supervisory staff.
c. 7-minute rules
On or very soon after November 20, Winter issued
orders that the doors to the entrances to the plant were to
remain locked until 7 minutes prior to the beginning of a
shift.
For years Respondent had had the following notice
posted in the plants:
Federal Government regulations prevent us from
allowing employees to be in the plant more than 7
minutes before their work shift starts and more than 7
minutes after their work shift ends. Also the lunchroom
is to be used only during break periods and specified
lunch hour periods.
We ask your cooperation in these matters.
This regulation had not been enforced for years. As
Winter pointed out at the hearing, the enforcement of such
rules tends to be relaxed over a period of time. At or about
the time aforementioned, Winter chose to order its strict
enforcement thereafter.
At the hearing, Respondent testified this change was
required by Respondent's insurance company. Its strict
enforcement at this time tended also to restrict communi-
cations among the employees.
d. Donaldson goons
One evening in late November or early December as the
day shift ended, Winter noted from his office window that
some Donaldson Company employees had gathered at the
exits of Respondent's parking lot and were distributing
union literature to the departing Respondent employees.
Donaldson had been organized by UAW some time
before.
Winter immediately picked up the public address system
resting on his desk which would carry his voice throughout
the plant. Over this system Winter admitted making the
following ad-lib announcement:
We have some of the Donaldson Goons out here, and it
looks like they are going to pass out some literature,
and if you don't want to take the literature, you don't
have to. If you roll your windows up, they can't stick it
in your car. If they try to block the aisles and get in
front of you, one of them might get hit or hurt.
Lewis, Santee, Downen, and Mathes all heard Winter's
remarks over the loudspeaker. According to Lewis, he
heard Winter say:
There were Union Goons out in the parking lot passing
out papers, there were Donaldson's Goons out there
and that we didn't have to stop and get the papers, we
could roll up our windows and go on by, that they were
on private property, and that you had the right to run
over them if they were in your way.
The other three witnesses testified similarly that Winter's
statements were instructive rather than conditional.
Although Winter denied encouraging the employees to
run over anyone, every witness agreed that something was
said about the possibility of the "goons" being hit.
Winter's talk on this occasion in effect constituted
instructions to Respondent's employees not to accept
union literature and thus constituted an interference with
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees' right to engage in union activities and thus
violated Section 8(a)(1) of the Act.
In the light of the fact that it was apparent from the
announcement that Winter already had the area under
surveillance these instructions not to accept the union
literature would have been most effective as his employees
would have suspected that Winter would continue to keep
the area under surveillance and could, or would, know
which employees violated his instructions.
Although Winter did mention the possibility of hitting
the distributors of the union literature in his talk, I cannot
believe that Winter intended to "induce and encourage
employees to assault" anybody. At most Winter just did
not care .4
e. The no-solicitation rule
(1) Its promulgation
On-November 19 Winter, in speaking to his supervisors
about giving written reprimands, called specific attention
to rule 17 of Respondent's printed rules of conduct which
reads as follows:
17 - Working time is for work . Therefore , there shall
be no soliciting of membership, pledges, circulating
petitions or distributing handbills during work time.5
Sometime in early December Respondent posted the
following rule:
Fellow workers, in the past we have overlooked
certain rules and regulations pertaining to merchandise
being brought into the plant and being sold in the
plant , however, due to the help shortage and the extra
heavy work schedule being assigned to the Kirksville
plant , the Company feels we can no longer permit this
practice . Effective at once, there will be no sales or
solicitations allowed in the plant. [Emphasis supplied.]
The last sentence of this new rule would appear to ban
all solicitation at all times in the plant. This is an illegal no-
solicitation rule. However , Respondent contends that it
posted this new rule because employee Ms. Morgensterne
who was peddling jewelry to the employees in the plant
suffered a loss or theft of some of her merchandise and so
the posted rule was intended by Respondent to apply only
to the sale of merchandise in the plant.
This argument creates the impression that Respondent's
printed no-solicitation rule may well have been restricted
by Respondent in its application to union solicitation only,
which would also violate Section 8(a)(1) because such
rules , in order to be valid , must apply to solicitations
indiscriminately.
Applying the well-established rule that all doubts about a
rule must be resolved against its promulgator , I must hold
Respondent 's no-solicitation rule, as amended or supersed-
4 This incident was pleaded in the General Counsel's complaint as
follows
(f) Induce and encourage employees to assault union organizers
engaged in distribution of union literature...
However , despite the inartistic pleading , this incident was fully litigated at
the hearing.
ed by the posted notice above, to be illegal and a violation
of Section 8(a)(1) of the Act. If Respondent intended the
rule to apply to sales of merchandise in the plant only, it
was incumbent upon the rulemaker, Respondent, to say so
clearly. This Respondent did not do.
Consequently, it must be here held that Respondent's
no-solicitation rule was illegal and violative of Section
8(a)(1) of the Act in its promulgation.
(2) Enforcement
Foreman Hendricks and Foreman Kinney of the
maintenance department each interpreted Respondent's
no-solicitation rule by their individual enforcement there-
of. These interpretations are illuminating.
On or about December 20, employee Ruthie Winstead
had passed out some union leaflets by the front door
before work. She had 20 or 30 such leaflets still undistribut-
ed at check- in time so she brought the undistributed copies
into her work place and laid them on her workbench
underneath her lunch, coffee cup, purse, and other
personal property. The plant provided no lockers for such
personal property.
As Winstead returned to her work place at the end of the
8:30 p.m. break period, Foreman Hendricks ordered her to
remove the batch of leaflets from the table. When
Winstead protested that she had the right to organize for
UAW, Hendricks ordered her to place the leaflets inside
her purse out of sight. He ended the episode by ordering
Winstead that "from that night on, [she] was not to bring
any more UAW literature, or anything concerning the
UAW, back into the plant, that [she] was to keep it in [her]
damn car where it belonged."
Upon receiving a report from Winstead of this encoun-
ter, employer organizer Roberta Thompson thereafter
would not allow Winstead to take any UAW material into
the plant for fear Winstead would be discharged if she
disobeyed this order of Hendricks. Thus, Foreman Hen-
dricks kept UAW material out of the plant.
This enforcement of the rule as far as union materials
were concerned must be compared with Maintenance
Foreman Kinney's enforcement of that rule in regard to
antiunion materials.
Soon after the announcement of the union campaign,
employee Dixon requested some paint from Foreman
Kinney. Kinney asked what it was to be used for. Dixon
answered by pointing to a "Vote No" button he was
wearing and said, "for some of these." Kinney informed
Dixon where the paint was and Dixon left with some.
Thereafter and throughout the campaign, to Kinney's
knowledge and without his objection, a supply of antiunion
buttons was maintained in employee Sandretto's toolbox in
the maintenance department for distribution to any
employee who wanted one. Kinney and the other employ-
ees of the department offered and distributed such
antiunion materials from these supplies.
S Prior to the recent decision of the Board in Litho Press of San Antonio,
211 NLRB 1014 (1974), this rule containing the ambiguous phrase "work
time" without specific exception for breaktimes , lunch or meal times, etc ,
was presumptively invalid because of its ambiguity as to time . Litho may
well have changed this longstanding Board law.
6 Respondent has a foreman with this same last name
McGRAW-EDISON CO. 465
In fact Kinney himself admittedly wore an antiunion
button throughout the campaign . Kinney maintained that
the no-solicitation rule did not prevent him from such a
display pf his sentiments but only prevented his distribu-
tion of such insignia to others . Winter raised no objection
to Kinney's display of the antiunion button nor to the
distribution of such antiunion materials to others. The
evidence is quite clear that , despite Kinney's denial thereof,
Kinney himself solicited others to display these antiunion
buttons. In fact, he made no objection when employee
Wood in the plant distributed antiunion stickers to Winter
and himself nor did Winter. In fact Kinney offered such to
employee Lewis.
Hence , it is perfectly clear that Respondent 's enforce-
ment of its no-solicitation rule was completely disparate:
no distribution of union literature but free distribution of
antiunion materials . Such disparate enforcement of this
rule constitutes a violation of Section 8(a)(l) of the Act.
f. Roberta Thompson
Roberta Thompson and Flora Sizemore constituted a
team of welder and loader . Respondent's safety rules
required the employee doing welding to wear safety glasses
but not so the loader.
Thompson, of course, was an original member of the
Union 's in-plant organizing committee and, in fact the
chairman of the second shift of that committee . Sizemore
had signed a union authorization card on November 20
and thereafter also wore an organizing committee button at
all times.
Early in December , Sizemore , while welding , failed to
wear her safety glasses . Foreman Danny Williams of that
department spoke to her about this failure. On December
7, Sizemore once again failed to use her glasses while
welding. This time, after consulting and approval of night
Superintendent White, Williams gave Sizemore a written
warning for such failure. Written warnings go into the
employee's file for possible future use.
Due to her display of the union insignia , Sizemore's
union affiliation was publicly known. This might create an
implication that she was given the written warning for this
admitted safety regulation violation because of her union
affiliation. However, safety regulations are applicable to all
employees regardless of union affiliation. Foreman Wil-
liams had, in this instance, followed prior plant practice of
giving at least one oral warning, if not more, prior to
issuing the written warning . Thus , even though Sizemore
was a known union button wearer , these warnings
complied with the plant's past practices and were given for
reasons of safety.
On December 19, Foreman Williams saw Thompson
welding without her safety glasses on. Investigation by
Williams determined that Foreman Walker of another
department had also seen Thompson welding without
glasses . Williams thereupon walked to the superintendent's
office where Foreman Snider was and had Snider check the
fact that Thompson was in fact welding without glasses.
Williams spoke to Superintendent White about giving a
written reprimand for this violation and thereafter made
out a written warning for that violation. Williams then
walked to Thompson's work place and handed her the
written reprimand.
If safety were Williams' primary concern in this instance,
then safety required that Williams call the admitted
violation to Thompson's attention immediately even
though only orally. The admitted facts here are that
Williams deliberately delayed this warning in order to get
confirmation from Foremen Walker and Snider, as well as
for subsequent consultation with Superintendent White
before making out the written reprimand for Thompson.
This considerable delay on a safety matter proves that
safety was at best a secondary consideration in this
instance . The fact that an accident could have occurred
during all this investigation, consultation, and writing of
the reprimand indicates that safety was merely a pretext by
which to place a written reprimand in the files of the
known chairperson of the Union's second-shift organizing
committee for possible future use.
When the written reprimand was handed to Thompson,
it listed two offenses: (1) Safety violation, and (2)
"Disobedience." Thompson objected to the inclusion of
this second element to White who thereupon returned to
his office and changed the second element to a violation of
"carelessness."
These facts together with Thompson's known member-
ship and activities on behalf of the Union and with the
elimination of the prior practice of previous oral warnings
proved that Respondent here was engaged in a course of
conduct intended to coerce and intimidate a known
member of the organizing committee in her activities on
behalf of the UAW in violation of Section 8(a)(1).
Safety rules should be applied strictly in the interest of
personal safety and not, as here, as an attempt to
intimidate and coerce employees because of their union
activities. It exemplifies what Winter intended with the use
of the phrase "when necessary" on November 19.
g. Lonnie Winn
Lonnie Winn, a diesetter for Respondent since August
1970, signed a union authorization card on December 4
and began wearing his union button publicly on December
11.
Respondent's rule book contains a rule that employees
are not to use company telephones without the permission
of their foreman. However, Winn, who worked the second
shift, had in fact used an office telephone openly and
without such permission several times per week throughout
his employment with the knowledge of and without
objections from his supervisors. The evidence shows that
other employees did likewise. Obviously the telephone rule
was not being enforced by Respondent prior to the union
campaign.
On Friday, December 14, Foreman Williams noted
Winn using the office telephone as usual. He reported this
fact to Superintendent White. For reasons known only to
himself, White decided not to issue either an oral or written
reprimand at the time. He did, however, write out a written
reprimand for using the telephone without permission. The
date on this reprimand was left blank. He instructed
Williams to watch Winn.
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the evening of Monday, December 17, Winn again
used the office telephone. This time Williams walked in
and handed Winn the prepared, but undated, wntten
reprimand for such unauthorized use of the telephone.
There had been no oral warnings given Winn about the use
of the telephone previously.
Respondent's duplicate original of this written repri-
mand contained the date of "12-17-73." This does not
appear upon the copy given to Winn on that date.
Here again, the reprimand appears to have been given
for the purpose of coercion and intimidation because of the
recipient's known union affiliation and sympathy in
violation of Section 8(a)(l). In fact, here, it might even be
said that Respondent deliberately entrapped a union
supporter for just that purpose.
Winter made the point that over the years the enforce-
ment of rules become lax. From this and other incidents
cited here, it becomes apparent that Winter thought that
the commencement of the union organizing campaign was
the appropriate time to require strict enforcement of the
rules again with or without announcement to that effect,
particularly if the offender was a known union sympathizer
or a member of its organizing committee.
h. Betty Ferguson
Betty Ferguson, an 8-year veteran welding employee of
Respondent, signed a union authorization card on Novem-
ber 20, and thereafter wore a union organizing committee
button at all times.
About 10:20 a.m. on December 18 after the morning
break, Foreman Leavitt came to Ferguson's work place,
handed her a written reprimand for having "engaged in
unnecessary conversation" and said, "Betty, I hate to give
it to you but you [were seen ] sitting and talking." Ferguson
answered that she "probably asked for this."
Ferguson acknowledged that she had in fact carried on a
conversation with employees Diana Dimmit and Elsie
Woods and Assistant Foreman Orland Dimmit for a few
minutes beyond the conclusion of the 10 a,m. break period
on matters unrelated to the Union. Leavitt acknowledged
that he had no idea of the subject of the conversation.
Hence it is hard to know how he established that this
conversation was "unnecessary," especially with an assist-
ant foreman present and participating therein.
It is notable that Ferguson was the only union button
wearing conversationalist involved and also that she was
the only recipient of a warning for this allegedly "unne-
cessary conversation."
Leavitt's attempted explanation for this phenomenon
was that Ferguson was the only employee "away from her
work station" during this "unnecessary conversation."
This, however, appears to be a completely different offense
from that for which she was reprimanded.
7 Leavitt purported to recall little, if any, of Winter's instructions at the
November 19 meeting in regard to written reprimands. In this, Leavitt's lack
of memory coincided almost exactly with the memories of most, if not all, of
the other supervisors who attended that November 19 meeting and who,
incidentally, happened to be sitting in the courtroom while Winter testified
regarding his instructions to them on that occasion.
8 During the direct examination of Mathes on motion by Respondent, I
Respondent then attempted to shore up Leavitt's
position by showing that on January 3, 1974, Leavitt had
given employee Van Dyke, who wore no union button
either, a written reprimand for "lateness." However, the
facts developed that January 3 was not the first time Van
Dyke had been guilty of being late, that she had been
spoken to about the matter previously, the number of such
previous oral reprimands Leavitt was unable to estimate.
Thus the facts indicate that Ferguson was reprimanded
for "unnecessary conversation" only because she was
wearing a union button as the other conversationalists
without buttons were not reprimanded. It also appears
clear that the Ferguson reprimand was given pursuant to
Winter's November 19 instructions to the foremen and was
for the discriminatory purpose of attempting to coerce and
intimidate a known union sympathizer in violation of
Section 8(a)(1).7
i. David Mathes
During his 4 years of 'employment with Respondent,
David Mathes has been a final inspector of fans and
heaters prior to shipment. His job is to plug the fans into a
board to check the oscillation and then into another board
to check the "ampage" [amperage?].
Mathes signed a union authorization card during the
morning break period oti November 20 for Barbara Santee,
the wife of Kenneth Santee of the organizing committee.
He did not wear a union button. In fact, except for asking
two employees to sign union authorization cards unsuc-
cessfully early in December, Mathes' union activity
appears to have been negligible.
A little before noon on January 14, Jerry Winter, son of
Floyd Winter, brought a fan with a loose blade back to
Mathes to have the blade fastened tighter. This Mathes
did. Mathes inquired why some fans on the board in front
of Mathes were not oscillating. Mathes answered that he
was at that time helping a woman on the assembly line and
was not yet checking those fans for oscillation. Mathes
explained that he was helping this woman on the assembly
line because they both were paid on a piecework basis so
that the more they made the greater was their pay.8
At about 3:45 p.m. that same day, as a result of a
conversation with Jerry Winter concerning Mathes' alleged
failure to check the fans for oscillation, Foreman James
Clinton, after watching Mathes for a period of time from a
distance, came up to him at his work station and accused
Mathes of not having checked the fans for oscillation and
said, "God damn it, you know better than that." Clinton
then walked away.
According to Clinton, he then went to another vantage
point from which he could watch Mathes at work.
According to Clinton, Mathes continued not to test for
oscillation.
struck this testimony as to the conversation with Jerry Winter on the
grounds of immateriality . Respondent 's subsequent examination of Fore-
man James Clinton made this Winter/Mathes conversation material.
However, I failed to reverse my ruling regarding the striking of the original
conversation. In view of my ultimate resolution here , I find no reason to
believe that making findings on this stricken testimony will in any way work
to the disadvantage of Respondent.
MCGRAW-EDISON CO.
Then just before 5 p.m. Clinton handed Mathes a written
warning slip to the effect that Mathes "had failed to test all
operations of 10 inch OSC fans - not checking for
oscillation of each and every fan ." This slip was counter-
signed by Heaberlin . This was Mathes ' first and only
warning.
The issuance of this reprimand to Mathes appears to
follow the same pattern of reprimands as was suggested by
Winter at the November 19 meeting.
However , there are two difficulties . The first is that
Mathes' union activities appeared to have been minimal, if
not nonexistent . The interference of Jerry Winter suggests
that perhaps his father suspected Mathes was more active
than the testimony proved . However , my evidentiary ruling
noted above eliminated that aspect from this incident.
Hence I will dismiss this portion of the case even though
the fact is that these allegedly uninspected fans were
thereafter boxed and shipped without further inspection by
Respondent.
j. Solicitation for and against
On or about December 20, button-wearing union
activists Karen Gunnels, Carol Hines, and Carolyn Ray
went to Winter's office to inquire if they could be excused
for I hour the following Friday in order to participate in
their children's school Christmas celebration without losing
their own Christmas holiday pay. After granting this
request, Winter remarked that he already knew that
Gunnels was in favor of the Union.9 She and the other two
employees acknowledged that each of them had signed
union authorization cards . Then Winter inquired why the
employees felt they needed a union in the plant and what
was wrong with things as they were. The employees cited a
number of complaints they had in their department which
they had taken up with Foreman Sayre without success
which led them to the conclusion that a union was
necessary in order to correct the situation. The question of
wages came up. Winter then showed the employees two
union contracts as proof that the Union could not help
them especially if they believed they could get a large wage
increase . Winter then added, "Well, I told them that Mr.
Winslow, who is our time study engineer, cost accountant,
and I were going through the rates and that we would be
setting the new rates reflecting the increase in the base
rates . . . I mentioned that the rates were set , that the
average worker should be able to make a 25 percent bonus,
based on the incentive or top day rate. A good extra
worker should be able to make 30 percent or 35, and an
exceptionally above average worker could even make 40
percent, and that we were reviewing the rates." The
discussion lasted an hour or so and ended with Winter's
assurance that he would check into their complaints and
do something about them.
About 4:30 that afternoon, Sayre ordered Gunnels,
Hines, and Ray to report with him at Winter's office. At
Winter's request, the employees repeated some of the
complaints they had made against Sayre earlier that day.
During the course of this discussion, Sayre accused
9 Foreman Sayre had previously reported to Winter that Gunnels was
wearing a union button.
10 This alleged " timing" of "12 to 15 minutes" like the timing in the
467
Gunnels of having solicited employees Johnson and
McFarland to sign union authorization cards during
"working hours." This Gunnels denied. However, the
meeting ended amicably. But no changes were made in the
department as a result of the discussion.
Regarding the alleged solicitation, both Johnson and
McFarland testified at the hearing that just prior to the 10
a.m. break one morning in December (about December-7)
Gunnels had in fact inquired of both, while all three were
working, if they would help the Union by signing an
authorization card. Both men responded in the negative.
Within minutes thereafter, Johnson and McFarland
reported the alleged solicitations to Sayre. It is undenied
that early in the union campaign Sayre had ordered
Johnson, at least, to report immediately to him if he were
ever solicited to join the Union "during working hours."
Thus it appears that Foreman Sayre had set up a
network of informers in order to keep union activities
under surveillance in his department at least. Such
surreptitious surveillance over union activities violates
Section 8(a)(1) of the Act.
Also Winter's solicitation of grievances and gripes from
employees coupled with a promise to "take care of them
during a union campaign also violates Section 8(a)(1).
Winter's talk about the new wage rates without the
necessity of a union constituted an implied promise of
benefit in violation of Section 8(a)(1) of the Act as did his
promise to take care of the complaints in the department.
k. Barbara Ownbey
Barbara Ownbey is not only an employee of Respondent
but also the wife of Jim Ownbey who was listed as one of
the Union's organizing committee in the letter of Novem-
ber 19. She signed a union card on November 20 and
thereafter wore a union organizing committee button.
On December 27 Winter wrote out a warning slip for
Barbara Ownbey for a "conduct" offense because of her
"congregating with other employees and spending exces-
sive time in rest rooms."
Winter testified that, as he happened to be in the
maintenance department, he saw Mrs. Ownbey going into
the restroom. Having previously heard "rumors" from his
supervisory staff that "union meetings were being held in
the rest rooms," Winter glanced at the clock. According to
his "timing" Ownbey came out of the restroom some "12 to
15 minutes" later.ia Winter promptly wrote out the above
written reprimand and had Foreman Stanek deliver same
after he also had signed it.
When he handed the reprimand to Ownbey, Foreman
Stanek said, "I guess they are watching you" and explained
that someone had "timed" her in the restroom for 14
minutes . When Ownbey asked who had timed her, Stanek
purported not to know. Ownbey then remarked that she
did not know there was a limit on the number or length of
visits to the restroom. Stanek did not know either. So
Ownbey suggested that Stanek find out from Winter what
those limitations were.
Santee case of a conversation of "5 to 8 minutes" appears to have been in 3-
minute estimates rather than by the watch
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As they were leaving the plant together after 5 o'clock,
Stanek reported that Winter had answered this question by
saying that it was "just long enough to do your job and not
to be holding any union meeting." 11
It is thus quite clear that Winter issued this written
reprimand to Ownbey, a button wearer and the wife of a
known member of the organizing committee , in an effort to
prevent the holding of any "union meeting" in the
restroom rather than upon an estimated "timing" of 12 to
15 minutes . The very wording of Winter's reprimand of
"congregating with other employees" tends to corroborate
the above . Thus this reprimand also violates Section 8(axl)
of the Act.
The evidence in this case makes it very clear that the
"holding of union meetings" in restrooms bothered
Respondent considerably as night Superintendent White,
Foreman Hendricks , and other foremen began promptly
after notice of the organizational campaign to follow
button-wearing employees such as Ruthie Winstead and
LaVera Drummond, among others , to the restrooms.
Obviously Respondent recognized that restrooms are often
fertile soil for union organizational endeavors and reacted
accordingly . Thus Respondent chose to keep known union
sympathizers under surveillance in order to keep "union
meetings" at a minimum.
1. Anna Yauk
About 5 p.m. on January 14, 1974, Anna Yauk, an
employee of Respondent since 1959 , asked Winter's
permission to use the phone to call a taxi . As Yauk
completed the call, Winter called her into his office
because he wanted to talk to her. Winter inquired , "Anna,
what's wrong out there? What is so wrong that the people
and you think we need a Union?" Yauk thought a union
would do some good, at least in her department. When
Winter persisted in his inquiry, Yauk suggested that, if
Winter wanted to know the answer, he should get a few
employees from each department , discuss it with them, and
get the answers . He said he would do that but persisted in
questioning Yauk as to why she and the employees thought
a union was needed . Yauk refused to discuss the matter
further. Thereupon, Winter said, "Annie, you know we
have been pretty good to you. We have done you a lot of
favors." Winter specifically recalled a plane ticket to the
West Coast he had arranged for Yauk some time
previously. Yauk said that she was grateful but wanted to
be through and finished with favors. Winter thereupon
stated that it had been reported to him that she was having
a lot of repairs and rejects returned to her and that it had
also been reported to him that her "eyesight isn't as good
as it should be." He then added, "you know we have a lot
of older women just like you out there that we kind of take
care of, that are getting fairly old." After Yauk denied the
report about her failing eyesight , the conversation ended.
For some time prior to this conversation , at Winter's
orders Foreman Jody Sayre had had repairs and rejects by
it This testimony was undemed as Respondent did not call Stanek as a
witness.
12 Employee Lillian Cima testified to an even more explicit conversation
with Winter on November 20 where , according to her, Winter threatened
union sympathizers with ternunation and solicited Cima's assistance against
Yauk and some of the others stored alongside Yauk's work
place instead of having them repaired on the daily basis as
was customary.
That same evening this conversation "bothered" Yauk so
much that she had to telephone a fellow employee and
discuss the event with her.
Winter denied that he had made any threat to discharge
Yauk.
Technically Winter's answer was correct in that the word
"discharge" was never uttered during the conversation.
Winter was too subtle for that. However, the implications
of his remarks about both Yauk, her rejects, and her
eyesight, as well as the other "older women" in the
department who thought that a union was needed were so
clear as to require the finding, here made, that Winter
threatened both Yauk and the other prounion "older
women" in the department with possible loss of employ-
ment because of their belief that a union was necessary in
the plant. As Winter must have anticipated, Yauk passed
on that threat to her friends in the department. Thereby
Respondent interfered with, restrained, and coerced its
employees because of their union sympathies in violation
of Section 8(a)(1) of the Act.12
Conclusions
Throughout this Decision there are numerous conclu-
sionary findings of violations of Section 8(a)(1) which may
appear curt or cursory. Because of this it might be well to
expand a bit on such conclusionary findings.
Respondent here has filed a 36-page brief in which it sets
forth innocent explanations on each of some 17 separate
incidents. By the use of the well-known technique of
examining each such incident in isolation, deciding that in
itself such incident was innocent or justified and therefore
abandoning it, the brief reaches the natural conclusion that
this whole case should therefore be dismissed. Nothing
distorts a picture better or faster than examining isolated
parts thereof and throwing them away.
However, one thing does stand out like the proverbial
sore thumb in Respondent's brief: While it necessarily
mentions the events of November 19 in passing, the brief
attempts no innocent explanation thereof nor could it. The
closest the brief comes to giving such an innocent
explanation is its comment, relating to a totally different
incident, that "Mr. Winter may be an impulsive individual
and there is no doubt that he was not in favor of the Union
organizing the plant" 13
The key to this whole case lies in Winter's immediate
reaction to the Union's letter of November 19 notifying
him of the inception of its campaign to organize the
employees of his Kirksville plant. His reaction was
immediate and decisive. It permeated events thereafter. He
called his supervisory staff together at 5 p.m. that same
afternoon and, after reading to them the Union's letter,
including the names of the members of the union
organizing committee, gave orders that they were 'thereaf-
the Union. A pure credibility question arose when Winter denied any
conversation about the Union . I choose not to resolve this credibility
conflict because , even if found, the evidence would merely be cumulative
13 I concur fully with this appraisal on both counts
MCGRAW-EDISON CO.
ter to give out written reprimands "whenever necessary"
and suggested that thereby the supervisors could get rid of
them as they weren 't too smart .14 At this time Winter even
pointed out to his supervisors the three rules of employee
conduct which he thought would be the most efficacious
for the purpose. Winter was in such a hurry to begin his
campaign against the Union that he could not even wait in
giving these instructions until the "Do's and Don'ts" of
legal supervisory conduct during union campaigns could
arrive by mail from his attorney in Kansas City. On
November 19, legality was definitely a secondary consider-
ation in Winter's mind.
Lest any supervisor mistake the meaning of his instruc-
tions, the very next day Winter himself issued the first such
written warning to organizing committee member Kenneth
Santee, who was at the time 60 feet from his area delivering
a phone message to a fellow employee as he had done
many times before . In the phraseology of Respondent's
brief, Winter "concluded that Mr . Santee was wasting time
and engaging in unprotected union activities for which he
was entitled to receive a warning slip." So admittedly,
union activities , protected or unprotected , actual or
suspected , played an integral part in this first reprimand.
Thus it it instructive to note that seven of the written
reprimands issued during this period of time were given to
known prounion employees , of whom two were listed as
members of the organizing committee and a third was the
wife of another such listed member thereof . In addition, a
fourth member of the committee promptly lost his
overtime . Also during the period, only one nonunion
employee received such a written warning but that came
only after she had been warned orally on numerous
occasions for previous latenesses.
Winter's instructions to his supervisors on this occasion
violated the general practice in the plant which was that
written reprimands were given only after several previous
oral warnings . This was in line with Winter's tightening up
of all plant rules upon notice of the Union's organizing
campaign , at least as they were applicable to union button
wearing employees.
Respondent 's brief would have us believe that the only
difference between oral and written reprimands was the
permanency of the record of the latter . However, if so,
Respondent 's employees were not so notified . It is a well-
known phenomenon that many an employee has been
discharged for accumulating too many written warnings
permanently placed in his employment file. Hence the
change to written warnings in lieu of oral ones was coercive
in fact . No one wants to run the risk of discharge.
Having thus given his supervisors the word on November
19, so Winter in late November or early December used an
opportunity to give the same word to employees by
notifying them over the loudspeaker of the presence of
"Donaldson Goons" distributing union literature at the
plant gates and instructing the departing employees to roll
up their windows so that they would not have to take the
union literature and even adding remarks that sounded as
14 Winter alone as a witness attempted to give an innocent explanation
of this by contending that he ordered such written reprimands only "when
necessary," as the brief puts it, "to keep employees at their jobs or at work."
Winter was a credible witness especially as to major events . He was by far
469
though it might be all right to run the "goons" down if they
got in the way.
Respondent's innocent explanation of this announce-
ment is that it "would not be interference, restraint and
coercion of employees of the Company" because these
remarks were "directed at the distributors of the literature
who were not employees of the Company." This explana-
tion among other things ignores Winter's orders not to take
the union literature offered which were directed to the
employees of the Company. In addition, it was also clear
from the warning given that Winter had the scene under
surveillance and hence would, or could, know which
Respondent employees accepted such forbidden literature.
As noted above, Winter promptly tightened up all the
rules of the plant to the disadvantage of the Union. No one
was to be allowed to enter the plant more than than 7
minutes before the shift began, which would interfere with
communications on union matters. No one could use the
phone without permission, particularly if he wore a union
button, as did Winn, and no one was to work during rest
periods because Respondent was preparing its cost
accountant records so that, as Winter suggested, the
employees would soon be able to add a 25- /or 30-percent
bonus to their wages. This last definitely implied an illegal
promise of benefit.
Even Respondent's no-solicitation rule prohibiting solici-
tation during "work time" was changed by a posted notice
that "effective at once, there will be no sales or solicitation
allowed in the plant. " (Emphasis supplied.) If the printed
no-solicitation rule was legal, the posted one was not.
These were all unilateral changes in working conditions
made to combat the organizational campaign.
Even if we assume the printed no-solicitation rule to be
valid under the present Board law, its enforcement by
Respondent was so disparate as to violate Section 8(a)(l)
of the Act in any event. Winter would permit no union
literature to be brought into the plant. On the other hand,
Foreman Kinney of the maintenance department not only
permitted a supply of antiunion buttons to be kept
permanently in his maintenance department for distribu-
tion to employees, but he personally solicited employees to
wear them, even as he did.
Furthermore, Winter solicited grievances and gripes
from known union sympathizers Winstead, Ray, and Hines
with a promise "to take care" of them. Such promise to
take care of solicited gripes and grievances during a
campaign is a well-recognized violation of the Act.
2. Discrimination in hire and tenure
a. Delbert Downen
Delbert Downen attended the meeting with organizer
Purcell on November 18. He was listed in the union letter
dated November 19 as one of the union in-plant organizing
committee. Downen apparently did not sign a union card
until November 20 during the morning break at then
Foreman Eldon Clay's desk. He then began wearing an
the most honest witness of all Respondent 's supervisors . However, Winter
was not above adding a few details to make his conduct a bit more palatable
as in the example above.
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizing committee button and/or an organizing com-
mittee pocket pencil holder . Although Downen was not
very active in soliciting signatures on union authorization
cards, it was well known by Respondent that he was a
member of the Union 's in-plant organizing committee.
In fact Winter took occasion to remind Foreman Don
Atchley of that fact.
Since sometime in 1966 , Downen had regularly worked a
9-hour day with 5 hours more overtime on Saturday.
During these 7 years, Downen spent the regular 8-hour
day, 7 a .m. - 4 p.m ., in the degreasing department and then
from 4 - 5 p.m. at overtime pay carting and stacking fan
guards in boxes in the warehouse during the fan season or
during the heater season , which began about the middle of
December each year , cleaned racks , or chrome-stripped or
anything else which needed doing under Foreman Atchley.
Also during these years since 1966, Downen also regularly
worked 5 hours overtime on Saturday , which apparently
was performed under then Foreman Eldon Clay.
Sometime in December , Downen reported to Atchley
that he had to have more help in stacking boxes during his
4 - 5 p.m . overtime work. It was universally agreed that
stacking boxes at a height of 15 feet required more than
one man . Stacking boxes at lower heights could be done by
one man working alone.
On December 11,15 after perhaps talking to Heaberlin,
Don Atchley 16 came to Downen prior to his 4 - 5 p.m.
work in the warehouse and told him that he , Atchley, did
not have anyone to help Downen at the time , could not
find a place for employees Rod Kiger and Mike Peavler,
and so he was going to have them do Downen 's overtime
work full time so that he would not need Downen between
4 - 5 p.m . any longer . This conversation also apparently
ended Downen's 5 hours of overtime on Saturday as the
records show that thereafter Downen worked no Saturdays
either.
Thereafter Downen 's overtime work was performed by
Kiger, Peavler, Clark, Rusk, and/or Dixon at least until on
or about February 16, 1974, when Respondent saw fit to
restore Downen 's 1 hour of overtime daily and 5 hours on
Saturday.
As noted, Downen had worked this daily 1 hour
overtime and 5 hours on Saturday continuously for the
period since 1966.
Downen was well known to Respondent and Atchley as
a member of the union organizing committee through
Winter's reminder and through his wearing of the union
organizing committee button . It was also well known to
Atchley that Downen's replacements were all employees
who either wore no buttons or wore antiunion buttons. In
fact one of them, Dixon , had at one time wom a union
button but had, to Atchley's knowledge, switched to a
"Vote No" button prior to Downen 's loss of overtime and
replacement by Dixon.
Atchley's varied explanations for this precipitous change
were confused, confusing , and contradictory.
15
Both Pownen and Atchley agreed that this conversation occurred the
day Downen lost his overtime work . Atchley originally attempted to pick a
date for the conversation prior to November 19, whereas Downen thought it
occurred in the middle of December. The payroll records show that
Atchley's first explanation was that Downen , being in
the degreasing department , had no seniority for working in
Atchley's plating department . The sudden discovery of this
alleged lack of seniority after 7 years appears somewhat
farfetched . Next , Atchley maintained that he could find
nobody to assist Downen but then suddenly was having
trouble finding work for the five employees mentioned
above . Allegedly these employees became available be-
cause work "tapered down" with the changeover from
heaters to fans . But then Atchley had to admit that the
1974 changeover in this regard differed in no way from the
similar changeovers in 1970 ,'71,'72, or'73 when Downen's
overtime work remained unaffected thereby.
Finally, on February 16, 1974, 9 days after the Union
lost the election and Downen had removed his union
button, Downen's overtime was suddenly restored again
without explanation.
The circumstantial evidence here together with the
shifting explanations therefor, even in the absence of the
"smoking gun," is so overwhelming as to compel the
finding, here made , that Respondent deliberately discrimi-
nated against union-minded Delbert Downen by removing
his overtime work in retaliation for his known sympathy
and activities for and on behalf of the Union in violation of
Section 8(a)(3) and (1) of the Act.
b. David Lewis
On or about October 16, David Lewis applied for work
in Respondent's maintenance department. He was inter-
viewed for this job by Floyd Winter who told Lewis that he
was looking for an electrical supervisor on the night shift.
Lewis denied that he was an electrician although acknowl-
edging that he had done a little wiring of 110 and 220 but
none of the 440 variety . Lewis told Winter he was not
qualified for the job Winter had suggested. However,
Winter hired Lewis for a maintenance department job. At
this time janitor and maintenance employee Thompson
was on sick leave for an operation from which he did not
return to work until January 7, 1974 . Lewis began work
October 17.
On November 20, Lewis signed a union application card
for Kenneth Santee but never wore a button of any sort.
After his employment began as a maintenance man,
Foreman Lloyd Kinney assigned him to a large part of
Thompson's janitorial duties and other things throughout
the plant as assigned.
A day or two after Lewis was hired, Winter employed a
North Eastern Missouri University student named Amin
Rahdar as the electrician to wire the newly reconstructed
offices. On occasion Lewis was assigned to assist Rahdar in
this wiring.
On or about December 10 , employee Guy Dixon came
into the maintenance department asking for paint. When
asked what the paint was wanted for , Dixon pointed to a
"Vote No" button he was wearing and said to "make some
of these" in the presence of Kinney , Lewis, and employee
December I I was the first day Downen worked only 8 hours and hence that
must have been the date of this conversation.
1s Atchley was a most indefinite witness and was prone to include
"probably" in many of his answers.
McGRAW-EDISON CO.
Mike Peavler. Foreman Kinney then told Dixon where the
paint was which Dixon got and departed.
A day or so later, Kinney asked Lewis in the presence of
employees Albert Sandretto and John Johnson if Lewis
wanted a "Vote No" button to wear. Lewis refused on the
ground that he did not want to antagonize anyone.
Sandretto kept a number of such "Vote No" buttons in
his workbox in the maintenance department to the
knowledge of Kinney. Employees who came into the
department were asked by Kinney or others if they wanted
such a button . Other employees came into the department
in Kinney 's presence, went to Sandretto 's box, and took
out buttons without objection from Kinney.17 The mainte-
nance department appears to have been the headquarters
of the antiunion forces for, in addition to the distribution
of the "Vote No" buttons, every member of the depart-
ment, including Kinney, wore a "Vote No" button. To his
knowledge , Kinney was the only foreman wearing such a
button although he knew of assistant foremen who were
wearing them.
On December 13, employee Wood walked into the office
where Winter, John Johnson , Kinney, and Lewis were
present . As he did so, Winter greeted him with a remark,
"There's my hero ." Wood passed out antiunion stickers to
both Winter and Kinney who accepted them.
When Lewis asked Kinney the meaning of the "my hero"
greeting, Kinney explained that Wood "made up all the
anti-union buttons that he had." 18
On the morning of December 14, an employee came into
the maintenance department and offered those present
there, Foreman Kinney with employees John Johnson,
Sandretto, Chuck Mathes, and Lewis "Vote No" stickers to
be stuck upon their clothing or hardhats . All present except
Lewis accepted the offer.
About 4:45 that afternoon, after consultation with
Winter, Kinney informed Lewis that "I 'm going to have to
let you go." Kinney explained that Winter thought that
Lewis was loafing and "goofing off and not spending
enough time in his department ." Kinney added that he
"hated to let him go but I can 't fight [Winter ], he's higher
up than I am." After denying that Winter's reasons were
the reason for his discharge , Lewis departed.
When Lewis applied for unemployment compensation,
Respondent answered the inquiry of the Missouri State
Unemployment Office by claiming that Lewis had volun-
tarily quir and had not been discharged . Thereupon Lewis
went personally to Winter and inquired if he had been
fired or had quit voluntarily because , if he had quit, he
wanted his job back. Winter explained that Respondent's
report was in error and that Lewis had in fact been fired.
When asked why he had been discharged, Winter first
attributed that to the fact that Lewis was not a "top
electrician" but later added the fact that Lewis "didn't
spend enough time in [his ] own department and loafed
around and goofed off, talked to other people ." Thereafter,
Respondent corrected its answer to the unemployment
office, acknowledging that Lewis had been discharged.19
17 Kinney testified that he saw no violation of Respondent's no-
solicitation rule in these activities. He made no effort to stop these practices
and, in fact , participated therein.
is Winter candidly acknowledged having made this "my hero " greeting
471
Respondent's internal discharge report on Lewis, admit-
tedly based on Kinney's evaluations, rated Lewis as "fair"
in ability, attendance, and production but "poor" in
conduct so that he was not to be rehired. The accuracy of
these evaluations of Lewis by Kinney became questionable
when Kinney had to admit that Lewis had no attendance
problem even though Kinney had rated him only "fair" in
attendance.
Kinney also "thought" that he had reprimanded Lewis
once before during his employment for talking but was not
at all sure when, if ever.
Kinney acknowledged that he, a foreman, wore an
antiunion button as did at least one assistant foreman in
the plant. Kinney advanced the rather novel theory that, as
a foreman, he could display this insignia under Respond-
ent's no-solicitation rule but could not distribute such
buttons to employees. He also contended that it was no
violation of the rule to permit employee Sandretto to
maintain a distribution center of such antiunion buttons in
the maintenance department. The evidence proved in
addition that Kinney also engaged in such distribution.
This interpretation contrasts sharply with that of Foreman
Charles Hendricks about the union leaflets in Ruthie
Winstead's possession. Respondent needed a more uniform
interpretation and enforcement of its no-solicitation rule
than is obvious in this case. Respondent's enforcement of
the rule was so disparate as to constitute a violation of
Section 8(axl) of the Act.
Kinney was not a believable witness unless corroborated.
He preferred to argue, rather than to answer, the question
put to him. His memory was sharp in his arguments. But he
suffered an almost total loss of recall when required to
answer the question asked.
Winter acknowledged that he informed Lewis that
Respondent had discharged him for "goofing off," "holdi-
ng the wall up a lot of times, leaning against it," because he
was not a top electrician, and because his services were no
longer needed.
The trouble here is that admittedly Lewis told Winter
during his prehire interview that he was not an electrician,
much less a top electrician. In the light of Winter's
demonstrated character, it is highly unlikely that he could
have watched Lewis "goofing off' by "holding up the wall
a lot of times," as Winter described it, without having once
criticized Lewis for such inactivity. The record proves
Winter was neither passive nor reticent in the plant. Nor
was he such either in the courtroom or as a witness. Yet
this record fails to disclose that Winter ever reprimanded
Lewis for any such dereliction of duty. Such passivity was
not in Winter's character. I therefore cannot credit Winter
in either of the above regards.
Winter also contended that Lewis' services were no
longer needed. The record shows that, in fact, Lewis was
hired as a replacement for janitor Thompson who was on
sick leave for a period of time due to an operation. The
facts show also that, although Lewis was discharged on
and that it was due to the fact that Wood had made up the first antiunion
buttons. However, he testified that the remark was made "jokingly."
19 Winter blamed this error on the firm which was handling Respond-
ent's personnel matters at that time.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
December 14, Thompson did not return to work at least
until January 7.
On the other hand, both Winter and Kinney knew that
Lewis had refused to accept or wear antiunion insignia. In
fact, they each knew that Lewis was the only employee of
the maintenance department who was not a staunch and
rabid antiunionist as the maintenance department was the
headquarters of the antiunionist group in the plant. A
suspected prounion employee in that atmosphere could be
dangerous.
In the light of the Respondent's untrue and shifting
defenses regarding the Lewis discharge and the danger of
having a suspected prounion employee in the maintenance
department, I am convinced, and therefore find, that
Respondent discharged Lewis because it knew or suspected
that he was prounion in violation of Section 8(axl) and (3)
of the Act.
3. Objections to election
In 'addition to the unfair labor practices found hereto-
fore, the only other objection made by the Union to the
election of February 7 is that just 3 days before the election
of February 7 Respondent admittedly showed the right-to-
work committee's movie entitled "The Springfield Gun"
(hereinafter Gun) to captive audiences composed of all
Respondent's employees on company, or "work," time on
company property for which the employees were paid.
Gun, like its predecessor, "And Women Must Weep"
(Women), purports to portray a true event which occurred
during an unsuccessful union strike20 where a disgruntled
union sympathizer in the dead of night suddenly fires a
revolver shot through a lighted window in the home of a
nonstriking fellow employee resulting in the death or
permanent maiming of a young child. Both movies are
intensely dramatic, making excellent use of all the dramatic
techniques used so effectively so many years ago by actor
Paul Robeson in his performance of "The Emperor Jones."
Both movies are antiunion propaganda at its effective best
in creating feelings of revulsion and fear of unions and of
the tactics of union sympathizers.
The decision to show Gun to a captive audience just
prior to the election was a decision deliberately made by
Winter and Respondent's counsel about a month prior to
February 4. As Respondent is not in the entertainment
business, the only conceivable purpose of Respondent's
showing Gun to this captive audience on company time
and property was to solicit votes against union representa-
tion in the election 3 days following the showing of the
movie. Gun's effectiveness for that purpose rested upon its
effectiveness in creating those feelings of revulsion and fear
in members of the audience. Feelings frequently speak
louder than words.
Administrative Law Judges of course, are bound by
Board law. Theoretically so too are employers, labor
organizations, and their respective counsel.
20 The incident portrayed in Gun allegedly occurred at a strike at the
Royal Typewriter plant in Springfield, Missouri , whereas the almost exact
same incident portrayed in Women purportedly occurred at a strike in
Princeton , Indiana.
2i This Litho decision rather epitomizes the present era of Board dissent.
There are in that decision no less than three different majority decisions on
However, today, knowing what the Board law is on a
subject is often a matter of pure speculation. With the
advent of the Board's new Chairman, the era of dissent
descended upon the Board. As each new Board member
joined the Board thereafter, this volume of dissent
increased proportionately. Today, Board decisions are
filled with dissenting opinions not only on the law but also
the facts, credibility of witnesses, pleading, due process,
and other matters to such an extent that a unanimous
decision of the Board has become almost unique.
The Board law as to Gun is a case in point.
On May 9, 1974, in Sylacauga Garment Company, 210
NLRB 501, a panel of the Board adopted Administrative
Law Judge Wagman's determination that:
Accordingly, I find that the showing of "The Spring-
field Gun" interfered, coerced, and restrained employ-
ees in their Section 7 rights and thus violated Section
8(a)(1) of the Act. Southwire Company, supra at 1021.
Accord: Spartus Corporation, supra at 135, fn. 5.
Footnote 2 of that decision reads as follows:
Chairman Miller would not base any violation
findings on Respondent's exhibition of the film entitled
"The Springfield Gun" - one characterized by the
Administrative Law Judge as containing essentially the
same message as "And Women Must Weep." See
Heckethorne Manufacturing Co., 208 NLRB 302,
wherein a showing of the latter film was found by a
unanimous panel not to constitute an 8(a)(1) violation,
even in a context of other 8(a)(1) violations.
About 6 weeks thereafter, on June 25, 1974, the full
Board decided the case of Litho Press of San Antonio, 211
NLRB 1014. This case involved the showing of Women as
a possible violation of Section 8(a)(1). The majority
decision on that issue reads in pertinent part as follows:
After thorough consideration of the record, Chair-
man Miller, Member Kennedy, and Member Penello
conclude that the showing of the film "And Women
Must Weep" is neither violative of the Act nor a
sufficient basis for setting aside an election . All prior
decisions which are inconsistent with this conclusion
are hereby overruled.
There are two partially dissenting opinions expressed to
this item of the decision.21
So, at the moment, Board law appears to be that showing
Gun is a violation of Section 8(axl) and constitutes a valid
objection to an election whereas the showing of Women is
neither a violation nor a valid objection and that all
decisions to the contrary are retroactively overruled.
With this choice of law before me and with perfect
confidence that, when faced with the Gun issue, this same
majority triumvirate of Board members will decide the,
three separate issues with the composition of the majority differing in each
instance . One of those majority decisions in Litho has already been
mentioned herein ; namely, on the question of whether the oral statement
"while people are working" clears up the ambiguity caused by the phrase
that there is to be no solicitation "on company time." The other majority
opinion in Litho is not in point here.
MCGRAW-EDISON CO. 473
issue of Gun the same way it did with Women, I am here
going to anticipate that decision , without consideration of
the merits , by holding that the showing of Gun here does
not constitute a valid objection to the election.
As Respondent further correctly points out, the Board
law is that only matters occurring between the filing of the
representation petition and the holding of the election can
be considered in support of objections to the election.
In its brief, Respondent also contends that only four
events occurred after December 21, 1973, the date the
petition was filed. The Winter-Yauk conversation of
January 14, the warning slips given to Ownbey and Mathes
on December 27 and January 3, respectively, and the
actions of Supervisors White and Hendricks in timing
and/or following union activists Roberta Thompson,
Ruthie Winstead , and others to the restrooms to prevent
the rumored "union meetings " being held there.
I agree with Respondent's argument that the above-
enumerated events are the only events which specifically
occurred within the critical time period and that, perhaps
in, of, and by themselves individually, they were probably
insufficently serious to upset the election of February 7.
The defect in Respondent's argument here is that there
were other instances of violations of Section 8(a)(1) which
originally occurred prior to December 21, in fact as early
as November 19 and 20, which continued unabated
throughout the whole critical period in a continuing
pattern of, such interference , restraint, and coercion. For
instance , Winter's instructions on November 19 to his
supervisory staff to give out written warnings "whenever
necessary" in accordance with his own practice as
demonstrated in the Santee case remained in full force and
effect with its continuing coercive effect upon the employ-
ees' right to engage in union affairs . The same is true as to
Respondent 's change in working conditions which original-
ly occurred late in November or early December but
continued throughout the whole period. The written
warnings given by supervisors to the seven union sympa-
thizers as permanent records in the files of these supporters
continued as threats to their continued employment if they
should continue , in Respondent's belief, to engage in
suspected union activities . Winter's own December 27
written reprimand to Ownbey for allegedly having taken
enough time in the restroom "to hold a union meeting" was
not only coercive as to Ownbey but served also as a
reminder to all the employees that engaging in suspected
union activities continued unabatedly to be a threat to
one's continued employment . Also, throughout the whole
critical period here involved , the discriminatory enforce-
ment of Respondent's longstanding no-solicitation rule
remained unchanged . No union solicitation was allowed in
the plant but antiunion solicitation and activities remained
unhampered as exemplified in the maintenance depart-
ment . Although not an unfair labor practice under recent
Board decisions as found above, even Respondent's
showing of the movie Gun to its captive audience in the
plant gave notice to all employees that antiunion solicita-
tion remained permissible in the plant whereas prounion
solicitation remained banned . Thus, the very existence of
the rule continued to hamper legitimate organizational
activity of its employees and infringed upon the laboratory
conditions requisite to the holding of a fair election. The
four acknowledged incidents above thus were not isolated,
one-time occurrences but were in fact reminders of
Respondent's continuing policy to interfere, restrain, and
coerce any employee suspected of engaging in union
activities. Thus the aura of such Respondent interference
remained in the plant throughout the whole critical period.
Respondent's studied maintenance of this aura of a
continuing practice of interference, restraint, and coercion
in order to prevent union activities throughout the whole
critical period by the very occurrence of the four events
acknowledged above by Respondent to have occurred
within the critical period require the findings, here made,
that Respondent thereby prevented its employees from
their right to vote their own free and untrammeled desires
in the election of February 7, 1974, thus precluding the
holding of a fair election. As Respondent's unfair labor
practices here thus tended to interfere with the employee's
free choice of a bargaining representative on February 7, I
will order that the election held that day be set aside.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section II,
above, and occurring in connection with Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent discriminated in regard
to the hire and tenure of employment of David L. Lewis by
discharging him on December 14, 1973, and by depriving
Delbert L. Downen of his overtime work on December 11,
1973, because of their membership and activities on behalf
of International Union, United Automobile, Aerospace, &
Agricultural Implement Workers of America, UAW, in
violation of Section 8(a)(l) and (3) of the Act, I will order
that Respondent offer David L. Lewis full and immediate
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position without
prejudice to his seniority and other rights and privileges
and that Respondent make David L. Lewis and Delbert L.
Downen whole for any loss of pay each may have suffered
by reason of said discrimination against him by payment to
him of a sum of money equal to that which he would have
earned from the date of the discrimination against him to
the date of Respondent's offer of reinstatement or the
return of his overtime work less his net earnings during
such period in accordance with the formula set forth in F.
W. Woolworth Company, 90 NLRB 289 (1950), with interest
thereon at 6 percent per annum.
Because of the type and extent of the unfair labor
practices engaged in by Respondent, it is clear that
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent has an opposition to the policies of the Act in
general and , therefore , I deem it necessary to order
Respondent to cease and desist from in any manner
interfering with the rights guaranteed to its employees by
Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record herein , I make the following:
CONCLUSIONS OF LAW
1. McGraw-Edison Company is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. International Union, United Automobile, Aerospace
& Agricultural Implement Workers of America, UAW, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By discriminating in regard to the hire and tenure of
employment of David L. Lewis by discharging him on
December 14, 1973, and of Delbert L. Downen by
depriving him of his overtime work on December 11, 1973,
because of their membership and activities on behalf of
said Union in order to discourage such membership and
activities among its employees, Respondent has engaged in
and is engaging in unfair labor practices in violation of
Section 8(a)(1) and (3) of the Act.
4. Respondent has interfered with, restrained, and
coerced its employees in the rights guaranteed them in
Section 7 of the Act in violation of Section 8(a)(1) of the
Act by:
(a) Ordering supervisors to issue written warnings to
employees suspected of engaging in union activities.
(b) Instructing its employees not to accept union leaflets.
(c) Maintaining surveillance over employees suspected of
engaging in union activities.
(d) Ordering employees to promptly report any union
solicitation to Respondent.
(e) Issuing permanent written warnings, contrary to past
plant practice, to union sympathizers when suspected of
engaging in union activities.
(f) Otherwise threatening union sympathizers with
discharge for engaging in union activities.
(g) Harassing employees suspect of engaging in restroom
"union meetings."
(h) Promulgating an illegally broad no-solicitation rule.
(i) Disparately enforcing Respondent's no-solicitation
rule to ban prounion solicitation but to encourage
antiunion solicitation.
(j) Interrogating employees about union activities.
(k) Soliciting grievances from union sympathizers with a
promise to correct them.
(1) Tightening up plant rules in order to discourage union
activities among its employees.
(m) In any manner interfering with, restraining, or
coercing its employees for the purpose of interfering with
the rights of the employees to engage in union activities as
guaranteed in Section 7 of the Act.
22 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 22
Respondent, McGraw-Edison Company, Kirksville,
Missouri, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, or activities on behalf
of, International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America, UAW, or in
any other labor organization, by discharging or otherwise
threatening to discriminate against any employee in any
manner with regard to their hire, tenure, or other term or
condition of employment because of their support for or
activities on behalf of a union.
(b) Interfering with, restraining, and coercing its employ-
ees 'in the rights guaranteed them in Section 7 of the Act
by:
(1) Ordering supervisors to issue written warnings to
employees suspected of engaging in union activities.
(2) Instructing its employees not to accept union leaflets.
(3) Maintaining surveillance over employees suspected of
engaging in union activities.
(4) Ordering employees to promptly report any union
solicitation to Respondent.
(5) Issuing permanent written warnings , contrary to past
plant practice, to union sympathizers when suspected of
engaging ip union activities.
(6) Otherwise threatening union sympathizers with
discharge. for engaging in union activities.
(7) Harassing employees suspected of engaging in
restroom "union meetings."
(8) Promulgating an illegally broad no-solicitation rule.
(9) Disparately enforcing its no-solicitation rule to ban
prounion solicitation but to encourage antiunion solicita-
tion.
(10) Interrogating employees about union activities.
(11) Soliciting grievances from union sympathizers with a
promise to correct them.
(12) Tightening up enforcement of plant rules in order to
discourage union activities among its employees.
(c) In any other manner, interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, loin, or assist the above-named labor
organization, or any other labor organization, to bargain
collectively through representatives of their' own choosing,
and to engage in other concerted activities for the purposes
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 David L. Lewis immediate and full reinstate-
ment to his former position or, if that position no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges and
make David L. Lewis and Delbert L. Downen, who was
discriminatorily denied overtime work from December 11,
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.
MCGRAW-EDISON CO.
1973, to February 16, 1974, whole for any loss of pay each
may have suffered by reason of said discrimination against
him by payment to each of a sum of money equal to that
which he would have earned from the date of the
discrimination against him to the date of Respondent's
offer of reinstatement in Lewis' case and to February 16,
1974, in Downen 's case , less his net earnings during such
period in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), with interest
thereon at 6 percent per annum.
(b) Remove from each of the employee personnel files
the written reprimands given to the seven employees
abovementioned who received such warnings between
November 20, 1973, and January 3, 1974.
(c) 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 records necessary to
analyze the amount of backpay due under the terms of this
Order.
23 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 read "Posted Pursuant to a
475
(d) Post at its Kirksville, Missouri, plant copies of the
attached notice marked "Appendix." 23 Copies of said
notice on forms provided by the Regional Director for
Region 17, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained for
60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the election held on
February 7, 1974, be, and it is hereby, set aside and Case
17-RC-7401 is hereby remanded to the Regional Director
of Region 17 for further processing.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."