Morrison Railway Supply Corp.

National Labor Relations Board - Board Decisions

Jun 23, 1971

191 N.L.R.B. 487 (N.L.R.B. 1971)

MORRISON RAILWAY SUPPLY CORP. 487
Morrison Railway Supply Corporation and Ophelia
Townes and District No. 9, International Associa-
tion of Machinists and Aerospace Workers, AFL-
CIO. Cases 14-CA-5638 and 14-CA-5681
June 23, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On November 12, 1970, Trial Examiner Henry L.
Jalette issued his Decision in the above-entitled con-
solidated case, finding that the Respondent had en-
gaged 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. He
also found that Respondent had not engaged in certain
other alleged unfair labor practices and recommended
that such allegations be dismissed. Thereafter, the Re-
spondent filed exceptions to the Trial Examiner's Deci-
sion and a supporting brief, and the General Counsel
filed exceptions and a supporting 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 these cases to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions, the briefs, and the
entire record in these cases, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner, and hereby orders that Respond-
ent, Morrison Railway Supply Corporation, East St.
Louis, Illinois, its officers, agents, successors, and as-
signs, shall take the action set forth in the Trial Ex-
aminer's recommended Order.
'In the absence of exception, we adopt pro forma the Trial Examiner's
findings that Respondent did not violate Section 8(a)(1) by interrogation of
employee Egglestone as alleged in paragraph 5(D) of the complaint, or by
a threat to increase the work of the employees because they selected the
Union to represent them as alleged in paragraph 5(G) of the complaint.
191 NLRB No. 97
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE, Trial Examiner: The complaint in
this case was issued on August 7, 1970.1 It was based on a
charge filed by Ophelia Townes in Case 14-CA-5638 on June
8 and on a charge filed by the above-captioned Union in Case
14-CA-5681 on July 7. The complaint alleges that the above-
captioned Respondent violated Section 8(a)(1) of the Act by
certain acts of interference, restraint, and coercion described
hereinafter and by discharging five employees because they
engaged in protected concerted activities. On September 16,
a hearing was held in St. Louis, Missouri.
Upon the entire record, including my observation of the
witnesses, and after consideration of the briefs filed by Re-
spondent and General Counsel, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a New York corporation with plants in the
State of New York and an office and place of business in East
St. Louis, Illinois, the only facility involved herein, where
Respondent is engaged in the business of servicing railroad
cars and equipment. During the year ending December 31,
1969, Respondent in the course and conduct of its business
operations purchased and caused to be transported and deliv-
ered to its East St . Louis plant directly from points located
outside the State of Illinois parts, paints, tools , and other
goods and materials valued in excess of $50,000.
II THE LABOR ORGANIZATION INVOLVED
District No. 9, International Association of Machinists and
Aerospace Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Introductory Statement
On June 3, an election was conducted by the National
Labor Relations Board to determine whether or not em-
ployees of Respondent in a production and maintenance unit
desired to be represented by the Union. Of approximately 25
eligible voters, 14 cast votes for the Union and 9 cast votes
against union representation. On June 19, a certificate of
representatives was issued certifying that the Union had been
designated by a majority of the employees as the exclusive
representative of the production and maintenance employees
of the Respondent at its East St. Louis plant. The independ-
ent 8(a)(1) allegations in the instant complaint, other than the
allegation of 8(a)(1) discharges, relate to alleged conduct by
two of Respondent's supervisors during the periods preceding
and immediately following the election.
B. Rulings On Motion To Dismiss
At the close of General Counsel's case, Respondent moved
to dismiss the complaint and the motion was granted as to
paragraph 5 (A), (C), (E), and (F).
1. Paragraph 5 (A), as amended at the hearing, alleged that
on many occasions from February 18 to June 3, Superinten-
dent Butler told employees that they could not receive raises
due to the pending union election, but that they may get raises
after the election. In support of this allegation, General Coun-
sel adduced the testimony of John Wilson, a discharged em-
' Unless otherwise indicated, all dates hereinafter refer to 1970.
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee, that about a month and a half before the election he
asked Superintendent Butler for a raise and was told that
Respondent was not giving any raises because of the election,
and would not do so until after the election was over. Superin-
tendent Butler admitted telling employees who asked for
raises that he could not grant raises until after the election.
There was no evidence that raises were scheduled and that
they were withheld because of the pending election. In these
circumstances, it was not unlawful for the Respondent to
state that no raises would be granted during the preelection
period.
2. Paragraph 5(C) of the complaint alleged that on or about
May 15, Superintendent Butler told an employee that he
could not receive a loan due to the pendency of the union
election. In support of this allegation, General Counsel
offered the testimony of John Wilson that, about a week or
two before the election, he asked Superintendent Butler for
a loan of $50. After checking with a company vice president,
Butler told Wilson that the company would not give him a
loan because of the pendency of the election and would not
do so until after the election. No evidence was offered that the
Respondent had a policy of granting loans on request at times
when there was no representation election pending. Under
the circumstances, the statement to Wilson was not violative
of Section 8(a)(1) of the Act.
3. Paragraph 5(E) of the complaint alleged that on June 3,
immediately following the election, Foreman Walker told
employees that they had been playing up until the election
and thereafter would have to get some work done. The elec-
tion ended at 12 noon, and the employees' lunch break is from
12 to 12:30. Employee Winters testified that at 12:30 not all
the employees had returned to work and Foreman Walker
told them, "We have been playing, but we are going to work
some now." This was the entire testimony offered in support
of paragraph 5(E). As I deemed such a statement, without
more, insufficient to support a finding of a violation of Section
8(a)(1), I granted the motion to dismiss.
4. Paragraph 5(F) of the complaint alleged that on or about
June 4, Foreman Walker told employees that they would be
required to "move out now." In my judgment, such an allega-
tion does not state a cause of action. I denied a motion to
dismiss it at the opening of the hearing and testimony was
received from Dueward Powell, a discharged employee, to
the effect that on June 4 at 12:30 p.m. at the end of the lunch
break employees were told to move out of the lunchroom and
get to work. At the time Powell was playing checkers and he
testified that before the election employees would occasion-
ally be permitted to play until 12:45 p.m. but since the elec-
tion Respondent gave them "no more breaks."
The import of Powell's testimony was that Respondent was
imposing more stringent working conditions on the em-
ployees because they had selected the Union to represent
them. Such testimony is indicative of an 8(a)(3) violation. No
8(a)(3) violation was alleged in the complaint, and Respond-
ent asserted that it should not be required to defend against
matters not alleged in the complaint. Upon consideration of
this argument, inasmuch as on its fact paragraph 5(F) did not
state a cause of action, I dismissed the allegation with leave
to the General Counsel to amend his complaint to state the
nature of the violation with which Respondent was charged.
General Counsel declined to amend.
C. The Alleged Promises of Benefit,
Interrogation, and Threats
1. Paragraph 5(B) of the complaint alleged that from on or
about May 3, to on or about June 3, about one time each
week, Superintendent Butler told an employee that various
employees are "aces" and will get a raise after the election but
that other employees would not.
Employee Jerome Egglestone testified that about once a
week for a period of 3 weeks preceding the election of June
3, Superintendent Butler told him that he, his brother, and
some other named employees were "his aces" and that re-
gardless of how the election came out they were going to get
a big fat raise because they were such good employees; as to
other employees, Butler made a vulgar remark.
Superintendent Butler admitted talking to Egglestone and
his brother about the good work they were doing and compli-
menting them on their work on several occasions, but he
could not recall referring to them as "aces." He admitted
telling them that as soon as things were straightened out they
would get a raise, but stated he said that only once. Butler
could not recall whether or not he mentioned to Egglestone
the names of other employees who would also be in line for
raises.
Relying on Hermann Equipment Manufacturing Co. Inc.,
156 NLRB 716, General Counsel contends that the repeated
statements to Egglestone that he and a group of other men
would get raises regardless how the election came out con-
veyed the belief, and was intended to convey the belief, that
there was no necessity for them to support the Union in the
coming election. I agree.
I accept Egglestone's testimony about Butler's remarks; in
particular, that Butler made such remarks on three different
occasions before the election. I was not convinced by Butler's
testimony that he spoke to Egglestone about the quality of his
work on several occasions but only once about a raise, and
I was not impressed by his explanation for making the state-
ments about a raise. In my judgment, there could have been
only one purpose in Butler's repeated promises of a raise and
that purpose was to convey the impression that there was no
necessity to support the Union in the coming election. The
impression thus created was not altered by the fact that the
promise of a raise was made regardless of the outcome of the
election. Under the circumstances, the promises of a raise
were violative of Section 8(a)(1) of the Act.
2. Paragraph 5(D) of the complaint alleges that on or about
June 1 Foreman Walker interrogated an employee about his
choice in the election and promised increased wages if the
Union lost the election.
The allegation is based on the testimony of Jerome Eggle-
stone that in the week before the election he was given time
off to pick up a backpay check from a former employer. He
was disappointed with the amount and went to the office of
the union that represented the employees where he had previ-
ously been employed (not the Union herein). He felt that he
received a run around there and when he returned to work
he had a conversation with Foreman Walker about the inci-
dent. (The record does not show who started the conversa-
tion.) In this conversation, in which two other employees
participated, Egglestone explained what had happened and
Walker remarked, "I know how you are going to vote now,
don't I? and Egglestone replied, "Yes." (On cross-examina-
tion, Egglestone described Walker's remark as "I know you
ain't going to vote no machinists, is you?" and his reply as
"Nope." I see no real difference between the two versions.)
Later that day, Walker approached Egglestone on the job
and remarked that Superintendent Butler had said that Vice
President Heller had said that " ... if this union deal goes
right that we are going to show the boys in New York up, you
see, what the fellows down here can do, and that we probably
in the long run, would end up making more money than the
shipping crew." (The men on the shipping crew work at night
on the jobs of the day employees and claim they make more
money than the day crew.)
MORRISON RAILWAY SUPPLY CORP. 489
Walker denied making the statements attributed to him by
Egglestone, but I was not impressed by his demeanor and I
do not credit him. Egglestone is currently an employee of
Respondent, under Walker's supervision, and I can see no
reason why he would fabricate testimony detrimental to Re-
spondent with no apparent advantage to himself. I find that
Walker made the statements attributed to him by Egglestone.
I do not find, however, that the remark of Walker that he
knew how Egglestone was going to vote constituted unlawful
interrogation. The conversation appears to have been ini-
tiated by Eggleston and was participated in by two other
employees, one of whom made the same remark as Walker.
As Egglestone testified, " ... they just kept saying, `I know
which way you are going to vote now.... "' "they" being
Walker and employee Tom Buchanan, and the remark was
only part of an observation that began with "You see, you see
what those unions will do for you now, don't you?" Consider-
ing the entire circumstances surrounding this conversation, I
am unable to see where Walker's remark could be construed
to be coercive.
Walker's remark later in the day that in the long run the
employees would probably end up making more money than
the shipping crew "if the union deal goes right" clearly im-
plies an increase in wages if the employees reject the Union,
and I find the statement violative of Section 8(a)(1) of the Act.
3. Paragraph 5(G) alleged that on or about June 8 Foreman
Walker told employees their work would be increased and
named employees who voted for the Union.
Employee Thomas Winters testified that the day after the
election he asked Walker why he was pushing them so and
that he told Walker he had not voted for the Union. Walker
replied, "Yes, you did. I know how every man voted."
Walker named Winters and four other employees who, he
stated, had voted for the Union.
Walker testified that Winters asked him if he knew who
voted for the Union and that he told him no. He denied
naming any employees to Winters. I credit Winters who ap-
peared to me to be a truthful witness. As stated earlier, I was
not impressed by Walker's demeanor. Nor was I impressed
by his observation on the witness stand, "How could I find
out who voted for the Union, I don't know." In a plant of 24
employees, I cannot believe that Walker did not know who
the union adherents were. He may not have known with
certainty who voted for the Union, but this would not pre-
clude his telling Winters that he did know. In so doing,
Walker created an impression of surveillance of the union
activities of Respondent's employees which would tend to
interfere with, restrain, and coerce them in the exercise of
Section 7 rights in violation of Section 8(a)(1) of the Act.
However, there is no support for that part of paragraph (G)
which appears to allege a threat to increase the work of
employees because they selected the Union to represent them.
4. Paragraph 5(H) alleges that on or about July 1 Superin-
tendent Butler threatened employees with discharge for en-
gaging in legitimate strike activity.
Eli Harris, employee and shop steward, testified that on
July 2 he was assigned a sandblasting job requiring the lifting
of 100 pound sacks and, when he asked Foreman Walker who
was going to help him lift the sacks onto the hopper, Walker
told him Butler had said it was not necessary to have two
men, that one man could do it. Harris told Walker he was not
going to lift the sacks by himself. Harris called all the em-
ployees together and told them what Walker wanted him to
do. Harris told Walker no one would do any work until
Butler came out. The employees stood around for about 10
or 15 minutes, but they returned to work before Butler came
out. When Butler came out, he told Harris that nobody was
telling him to lift a 100 pound sack, that he could cut the sack
in half and load the hopper with a shovel. Butler added the
next time Harris tried to pull a strike he'd fire every damn one
of them.
John Wilson corroborated Harris about Butler's threat.
According to Butler, when Walker told him Harris would
not lift the 100 pound sack, he went out to talk to Harris to
ask what the problem was. Harris told him he could not lift
the sacks by himself and Butler told him if he could not, all
he had to do was break the bag open and shovel the material
in. Butler told Harris " . . . I think this is pretty ridiculous to
have an argument over something like this that amounts to
as little as this does when all you have to do is use your head
and this could have been avoided." When asked if he had
threatened to fire employees if they engaged in a strike , Butler
answered, "Not to my recollection, no." On cross-examina-
tion, he stated he was " ... as near to positive as I can be.
. " that he had not mentioned a strike to Harris.
I do not credit Butler. His testimony on this issue was very
confused and I attribute the lack of clarity to Butler's lack of
candor. Moreover, the matter was not clarified by Foreman
Walker when he testified on the same issue and Walker was
not asked whether Butler made the threat described by Harris
and Wilson. I find the threat was made. As a work stoppage
such as was described above is protected concerted activity,
the threat to discharge employees who engage in such activity
is violative of Section 8(a)(1) of the Act. Northwest Oil Equip-
ment Inc., 173 NLRB No. 86 (TXD).
D. The Discharges
1. The facts
About 10 a.m., on Friday, July 3, about 15 of Respondent's
24 employees working that day discussed getting the day off
because the following day was a holiday. For Memorial Day,
which had also fallen on a Saturday, the employees had re-
ceived Friday off with pay and had been permitted to leave
work early the day before, apparently also with pay. Shop
Steward Harris asked Butler if they were going to get the day
off and Butler told him no, that Friday was not a legal holi-
day. Harris reported this to the employees and a decision was
made to leave work at noon. How many employees concurred
in this decision is not shown in the record nor does it appear
that the employees told Superintendent Butler about their
decision. However, Respondent did become aware of it, be-
cause sometime thereafter, exactly when is unclear, Foreman
Walker went around the plant taking down the names of the
employees who were planning to leave at noon. Just before
noon, Foreman Walker told the employees who were about
to leave that they could go home if they wanted to, but if they
did they would be on their own and they would get paid for
only half a day. According to John Wilson, just before leaving
he asked Walker if Butler said they could leave and Walker
replied yes. The employees received their paychecks before
leaving.
Five employees left at noon: Ophelia Townes, Dueward
Powell, John Wilson, Thelbert Johnson, and Edward Gor-
don.' On Monday when they returned to work, they were
given a letter which stated:
On July 13, 1970 at 12:10 Noon you left your job
assignments without permission and failed to return,
3 It is undisputed that only five employees left at noon. On cross-exami-
nation, Steward Eli Harris was asked if he walked out and if employee
Winters walked out. The transcript shows Harris as replying "Yes, I sure
did" and "He sure did." T., p.43, Is. 3 and 5. This is incorrect and the
transcript is hereby corrected to show that Harris answered, "Yes, I sure
didn't" and "He sure didn't."
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereby relinquishing your working rights with this com-
pany.
Effective immediately your position with Morrison
Railway Supply Corp. is terminated.
R. L. Butler
Sup't Car Shop
2. Analysis and conclusions
General Counsel contends that the concerted demand for
a day off and the walkout of five employees in furtherance of
that demand are activities protected by Section 7 of the Act.
In support of this contention, he cites Leprino Cheese Co.,
d/b/a Leprino Cheese Mfg. Co., 170 NLRB No. 81, enfd. 424
F.2d 184 (C.A. 10). However, there are certain differences
between this case and Leprino Cheese, which bring into seri-
ous question whether Leprino Cheese is applicable herein.
The most significant difference is that whereas in Leprino
Cheese the employees were clearly engaged in a concerted
walkout, in this case, according to General Counsel's own
witness, John Wilson, he and the other employees left work
because they believed they had received permission to leave.
As Wilson testified, he asked Walker if Butler said they could
leave and Walker replied yes. This testimony is uncon-
tradicted. Although both Walker and Butler testified, neither
was examined by Respondent about any conversations with
the discharged employees, nor did Respondent offer any evi-
dence concerning its reasons for discharging the employees.'
On the basis of Wilson's testimony, the conclusion is war-
ranted, and I find, that the employees were given permission
to leave, albeit without pay for the time they took off.
But if the employees left work because they had permission
to leave, it appears that Leprino Cheese is inapplicable. This
appears to be Respondent's position. In its brief, Respondent
did not address itself to the question of whether or not the
employees did in fact have permission to leave work. Rather,
Respondent has molded its defense to the contention that the
employees only believed they had permission to leave work
and that when they acted on that belief they were not engaged
in a work, stoppage to protest management 's refusal to accede
to their request, and, therefore, they were not engaged in the
exercise of any Section 7 rights. This is sophistic reasoning,
and I reject it.
When the employees requested the day off because of the
July 4 holiday, they were clearly engaged in protected ac-
tivity, and their decision to engage in a walkout was likewise
protected. However, they did not have to implement that
decision because Respondent acceded , at least in part, to their
request and granted them permission to leave. It would be
incongruous to hold that when the employees left work they
were not engaged in protected activity because their prelimi-
nary protected activity had been successful. It seems obvious
that the departure from work at noon was an inseparable part
of the earlier concerted protected activity. I find that when
the employees left work at noon not only did they do so with
Respondent's permission, but also that their act of leaving
constituted concerted protected activity. In these circum-
stances, when Respondent discharged them for leaving work,
it violated Section 8(a)(1) of the Act.
The foregoing analysis is unsatisfactory to a certain extent,
because it leaves unexplained Respondent's conduct in dis-
charging the employees purportedly for leaving work without
permission when the uncontradicted testimony shows that
Foreman Walker told the employees they could leave. But
' When General Counsel attempted to examine Butler on this issue,
Respondent objected on the grounds that the matter was outside the scope
of direct examination. The objection was sustained.
even were Ito find that the employees did not have permis-
sion to leave and did not believe they had permission to leave
but left without permission, I would find that they were dis-
charged in violation of Section 8(a)(l).
When Shop Steward Harris asked Butler if the employees
could have the day off, the answer he received was an un-
equivocal "no." Yet, when the employees decided to leave
despite Butler's refusal, they were not told they did not have
permission, they were not warned their departure from work
would be viewed as cause for discharge. To the contrary, the
foreman took down the names of those employees who in-
tended to leave and told them they could leave, but they
would be on their own and would not get paid. He capped it
all by answering yes when Wilson asked if Butler had said
they could leave. In light of Respondent's letter of discharge
dated that same day, it seems appropriate to ask what kind
of charade Walker was playing.
I am persuaded that the only explanation is that on learn-
ing of the employees' decision to leave concertedly at noon
Respondent decided to discharge them because of its resent-
ment over their assertion of the right to engage in a work
stoppage in protest of its refusal to give them a July 4 holiday,
and Walker's conduct was designed to mislead them into
leaving and to afford Respondent a pretext to discharge them.
Only the day before, Butler had told Harris that employees
who engaged in a work stoppage to protest working condi-
tions would be summarily discharged. Had Walker not made
the statements he made on July 3 and had he unequivocally
reiterated that the employees had no permission to leave, the
employees might very well have stayed at work. As it was,
most of them did. Respondent having misled the employees,
it should not now be heard when it asserts that they left work
without permission. For this reason , and the'reasons outlined
above, I conclude that Respondent violated Section 8(a)(1) of
the Act by discharging the employees named in the com-
plaint.
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations described
in section I, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the sev-
eral 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 in violation of Section 8(a)(1) of the Act, I shall
recommend that it be ordered to cease and desist therefrom
and to take certain affirmative action designed to effectuate
the policies of the Act.
As I have found that Respondent discharged Ophelia
Townes, Dueward Powell, John Wilson, Thelbert Johnson,
and Edward Gordon because of their protected concerted
activity, I shall recommend that it be ordered to offer them
immediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights and
privileges and to make them whole for any loss of earnings
they may have suffered by reason of their unlawful discharge
by payment to them of a sum of money equal to that which
they normally would have earned as wages, from the date of
their discharge to the date of the offer of reinstatement less
net earnings, to which shall be added interest at the rate of
6 percent per annum in accordance with the formula set forth
in F W. Woolworth Company, 90 NLRB 289, and Isis Plumb-
ing & Heating Co., 138 NLRB 716.
MORRISON RAILWAY SUPPLY CORP. 491
The unfair labor practices committed by Respondent strike
at the very heart of employee rights safeguarded by the Act.
I shall therefore recommend that Respondent be placed un-
der a broad order to cease and desist from in any manner
infringing on the rights of employees guaranteed in Section
7 of the Act. N.L.R.B. v. Entwistle Manufacturing Co., 120
F.2d 532, 536 (C.A. 4).
CONCLUSIONS OF LAW
1. Morrison Railway Supply Corporation is an employer
engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. District No. 9, International Association of Machinists
and Aerospace Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By promising wage increases to employees for the pur-
pose of interfering with their freedom of choice in the election
and by creating the impression of surveillance of their union
activities, Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Sections 8(a)(1) and
2(6) and (7) of the Act.
4. By threatening employees with discharge if they engage
in protected concerted activity and by discharging employees
for having engaged in protected concerted activity, Respond-
ent has engaged in and is engaging in unfair labor practices
within the meaning of Sections 8(a)(1) and 2(6) and (7) of the
Act.
5. Respondent has not engaged in unfair labor practices as
alleged in paragraph 5A, D, E, and F of the complaint now
has Respondent engaged in unlawful interrogation as alleged
in paragraph 5D of the complaint.
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
Respondent, Morrison Railway Supply Corporation, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing employees in
the exercise of their rights guaranteed by Section 7 of the Act
by promising raises to employees for the purpose of interfer-
ing with their freedom of choice in an election to determine
whether or not they desire representation by a labor organiza-
tion, by creating the impression of surveillance of the union
activity of its employees, by threatening employees with dis-
charge if they engage in protected concerted activities, and by
discharging employees who engage in protected concerted
activity.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the pur-
pose of collective-bargaining or other mutual aid or protec-
tion as guaranteed by Section 7 of the Act, or to refrain from
any or all activities.
2. Take the following affirmative action designed to effectu-
ate the policies of the Act:
(a) Offer Ophelia Townes, Dueward Powell, John Wilson,
Thelbert Johnson, and Edward Gordon immediate, full, and
unconditional reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights, privileges,
or working conditions and make each of them whole for any
loss of earnings suffered in the manner set forth in the section
hereof entitled "The Remedy."
(b) 'Notify Ophelia Townes, Dueward Powell, John Wil-
son, Thelbert Johnson, and Edward Gordon, 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 and Universal Military Training
and Service Act, as amended, after discharge from the Armed
Forces.
(c) Preserve and, upon request, make available to the Na-
tional Labor Relations Board and its agents, for examination
and copying, all payroll records, social security records, time-
cards, and personnel records and reports, and all other
records relevant and necessary for a determination of the
amounts of backpay due under the terms of this Recom-
mended Order.
(d) Post at its East St. Louis, Illinois, plant, copies of the
attached notice marked "Appendix."4 Copies of said notice,
on forms provided by the Regional Director for Region 14,
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasona-
ble steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 14, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.'
As to the allegations of the complaint not to have been
supported by the evidence, it is recommended that they be
dismissed.
In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and order, and
all objections thereto shall be deemed waived for all purposes. In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board."
' In the event that this Recommended Order is adopted by the Board, this
provision shall be modified to read: "Notify the Regional Director for Re-
gion 14, in writing; within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the law and has ordered us to post
this notice.
WE WILL NOT discharge employees because they en-
gage, or have engaged, in any concerted activities for the
purpose of collective bargaining or other mutual aid or
protection of employees.
WE WILL NOT threaten employees with discharge if
they engage in any concerted activities for the purpose
of collective bargaining or other mutual aid or protec-
tion of employees.
Inasmuch as the National Labor Relations Board has
found that we unlawfully discharged Ophelia Townes,
Dueward Powell, John Wilson, Thelbert Johnson, and
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Edward Gordon, because they engaged in such con- Dated By
certed activities, WE WILL offer them their jobs back,
and WE WILL pay them for any loss of pay they may
have suffered because we fired them.
WE WILL NOT promise raises to employees to make
them vote against representation by a union in any elec-
tion conducted by the National Labor Relations Board,
and WE WILL NOT tell employees that we know how
they voted in any such election.
All our employees are free to become or remain members
of District No. 9, International Association of Machinists
and Aerospace Workers, AFL-CIO, or any other labor orga-
nization.
MORRISON RAILWAY
SUPPLY CORPORATION
(Employer)
(Representative) (Title)
Note: We will notify the above-mentioned employees if pres-
ently serving in the Armed Forces of the Unites 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.
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 210
North 12th Boulevard, Room 448, St. Louis, Missouri 63101,
Telephone 314-622-4174.