U. S. Electrical Motors, a Division of Emerson Electric Co.

National Labor Relations Board - Board Decisions

May 28, 1982

261 N.L.R.B. 1343 (N.L.R.B. 1982)

U. S. ELECTRICAL MOTORS
U. S. Electrical Motors, a Division of Emerson Elec-
tric Co. and International Association of Ma-
chinists & Aerospace Workers, AFL-CIO.
Cases 26-CA-7458 and 26-RC-5823
May 28, 1982
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On January 22, 1981, Administrative Law Judge
Robert C. Batson issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions 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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions2 of the Administrative Law Judge,
as modified herein.
Respondent has excepted, inter alia, to the Ad-
ministrative Law Judge's finding that Supervisor
Philip Crosby orally promulgated an overly broad
no-solicitation rule and to his finding that Derwood
Brett, publisher-editor of the Mena Evening Star,
was acting as an agent of Respondent in publishing
on October 4, 1978,3 an article and an editorial re-
garding the union activity at Respondent's Mena
facility. For the reasons stated below we find merit
in Respondent's exceptions to these findings.
Regarding the alleged promulgation of an overly
broad no-solicitation rule, the credited testimony
establishes that in the first part of June Supervisor
Crosby told employee John Williams that he "real-
ized that [Williams] was involved in the Union, and
[Crosby] hoped that it wouldn't interfere with his
inspection [duties], and he wouldn't be doing any-
thing on Company time, involving in that." Al-
though the Administrative Law Judge found that
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to
overrule an administrative la, judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Dry Wall Product.s
Inc., 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings
2 The Administrative Law Judge inadvertently failed to include in his
Conclusions of Law a provision paralleling his finding that Respondent
violated Sec. 8(a)(I) of the Act by Supervisor Danny Titsworth's threat
to employee Paul Herrman that he would be disciplined if any additional
employee complaints were received regarding Herrman's union solicita-
tions, Inasmuch as we agree that such threat unlawfully conditions Herr-
man's protected activity on the receptiveness of his fellow employees, we
will amend the Administrative L aw Judge's Conclusions of Law accord-
ingly
3 All further dates herein refer to 1978 unless otherwise specified
261 NLRB No. 184
at all times relevant herein Respondent had in
effect a valid written no-solicitation rule (and no
exceptions have been taken to this finding), he also
found, based upon the foregoing evidence, that
Crosby had orally unlawfully broadened such rule.
We do not agree. The record herein shows that
later in the month of June, immediately following a
second Crosby-Williams incident regarding solicita-
tion while working, Williams was called into the
office of Joe Monico, Crosby's immediate superior,
and Monico explained Respondent's no-solicitation
rule as follows: "that [he was] not allowed to solic-
it on Company time, but his break periods were his
own time to do as he pleased." Thus, although
both Crosby and Monico used the ambiguous term
"Company time" in relating Respondent's no-solici-
tation rule, the fact that the rule as posted was
valid in conjunction with the fact that any ambigu-
ity in the oral rule was clarified by Monico within
a relatively short period of time indicates that Wil-
liams could not reasonably have concluded that the
rule prohibited solicitation during breaktime or
other periods when employees were not actually at
work. Accordingly, we conclude that the General
Counsel has failed to establish that Respondent
promulgated an overly broad no-solicitation rule,
and, therefore, we will dismiss this aspect of the
complaint and amend the Administrative Law
Judge's Conclusions of Law and recommended
Order accordingly.
Regarding the alleged agency status of Brett in
publishing the October 4 article and editorial, the
credited testimony establishes that Jim Montgom-
ery, the Mena plant manager, attended a Lions
Club luncheon in September and was asked to
speak about the rumors that the plant might close.
After asking not to be quoted, Montgomery sum-
marized the economic problems which Respondent
faced. Montgomery was asked if the union activity
at the plant had any bearing on its closing and
Montgomery responded that "those were two sepa-
rate problems" but that in his opinion the Union
was not needed since the campaign was causing
dissension and diverting everyone's attention away
from solving their operational problems. Immedi-
ately after this meeting Brett approached Mont-
gomery and requested permission to publish an ar-
ticle based upon his remarks; Montgomery denied
permission until he could check with Respondent's
attorneys. Early during the week of the election
herein, Montgomery contacted Brett and gave him
permission to publish an article based upon his
Lions Club remarks. The publication of this article
and the editorial coincided with the meetings held
with the employees by Montgomery and Russ
Hale, president of Respondent, wherein the unlaw-
1343
DECISIONS OF NATIONAL LABOR REI.ATI()NS I()ARD
ful theme of strike violence and the inevitability of
the plant closing because of the Union was devel-
oped.
Based upon the foregoing evidence and the fact
that the theme of the October 4 article and editori-
al paralleled the theme of the remarks made to em-
ployees by Montgomery and Hale, the Administra-
tive Law Judge found that Brett was acting as an
agent of Respondent in publishing the article and
editorial. We do not agree. Pivotal to the existence
of any principal-agent relationship is that the agent
be authorized to act on behalf of the principals In
the instant matter, there is no showing that Brett
was authorized to publish the October 4 article and
editorial on behalf of Respondent. Brett is the
editor and publisher of a daily newspaper whose
business is to investigate and report on newsworthy
issues. Clearly, the undisputed economic problems
facing Respondent which Montgomery related "off
the record" in his Lions Club remarks constitute
such an issue. Thus, when Brett sought permission
to publish an article based upon this "off the
record" information, he was acting in his own in-
terest and merely was following a procedure stand-
ard in the newspaper industry regarding informa-
tion received "off the record." Furthermore, it is
clear that Montgomery's Lions Club remarks con-
tain none of the allegedly unlawful statements of
the October 4 article and editorial and there is no
showing that Respondent was aware of such state-
ments prior to their publication. Thus, when Mont-
gomery granted Brett permission to publish an arti-
cle based upon his Lions Club remarks, he merely
was removing the self-imposed condition that his
remarks regarding Respondent's economic prob-
lems not be quoted. Finally, the record herein
shows that on October 5, the day before the elec-
tion herein, Brett published the Union's rebuttal on
the front page of the newspaper. Although we by
no means condone the statements made by Brett in
the October 4 article and editorial, in view of the
foregoing evidence, we find that the General
Counsel has failed to establish that Brett was acting
as an agent of Respondent in publishing the same5
and, therefore, we will dismiss this aspect of the
complaint.
Finally, regarding the Administrative Law
Judge's recommended Order, we note that para-
graphs l(g) and 2(c) thereof address matters which
should be set forth separately from the provisions
remedying Respondent's unfair labor practices. Ad-
' Restatement (Second) of Agency § I (1957)
s Moreover, in view of the Union's October 5 rebuttal and Ihe record
as a whole, we find that the October 4 article and editorial did not create
a general atmosphere of fear and coercion so as to render the citilduct of
a free election impossible See National Electrc (Coil Div. j1((;raw-Idwion
Company, 184 Nl.RB 691 (1970)
ditionally, the Administrative Law Judge inadvert-
ently failed to provide injunctive relief paralleling
his finding that Respondent unlawfully threatened
its employees that they would be subject to disci-
pline for alleged violations of its no-solicitation rule
based solely upon complaints from other employ-
ees. Lastly, we note that, in some respects, the
notice to employees fails to track the provisions of
the recommended Order. Accordingly, we will
amend the Administrative Law Judge's recom-
mended Order in these respects.
AMI.NI)I';D CONCLUSIONS OF LAW
Substitute the following Conclusion of Law for
the Administrative Law Judge's Conclusion of
Law 2:
"2. By interrogating its employees concerning
their union membership, activities, and desires; by
threatening its employees, directly or by implica-
tion, that it would close its Mena plant if the Union
were selected as its employees' collective-bargain-
ing representative; by threatening its employees, di-
rectly or by implication, that the selection of the
Union at its Mena plant would inevitably result in
strikes and violence; by threatening its employees
that it would be futile for them to select the Union
to represent them by telling them that it would not
bargain in good faith with the Union; and by
threatening its employees that they would be sub-
ject to discipline for alleged violations of its no-so-
licitation rule based solely upon complaints from
other employees, Respondent has engaged in unfair
labor practices affecting commerce within the
meaning of Section 8(a)(l) and Section 2(6) and (7)
of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
U. S. Electrical Motors, a Division of Emerson
Electric Co., Mena, Arkansas, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees con-
cerning their membership in, activities on behalf of,
or desires regarding the International Association
of Machinists & Aerospace Workers, AFL-CIO
(IAM), or any other labor organization.
(b) Threatening its employees, directly or by im-
plication, that it would close its Mena plant if the
IAM, or any other labor organization, were select-
ed as its employees' collective-bargaining repre-
sentative.
(c) Threatening its employees, directly or by im-
plication, that the selection of the IAM, or any
1344
U. S. ELECTRICAL. MOTORS
other labor organization, at its Mena plant would
inevitably result in strikes and violence.
(d) Threatening its employees that it would be
futile for them to select the IAM, or any other
labor organization, to represent them by telling
them that it would not bargain in good faith with
said labor organization.
(e) Threatening its employees that they will be
subject to discipline for alleged violations of its no-
solicitation rule based solely upon complaints from
other employees.
(f) In any like or related manner interfering with,
restraining, or coercing its employees in the exer-
cise of their rights guaranteed by Section 7 of the
Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Post at its Mena, Arkansas, plant copies of
the attached notice marked "Appendix."6 Copies
of said notice, on forms provided by the Regional
Director for Region 26, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 26,
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 complaint, in-
sofar as it alleges violations not found in the Ad-
ministrative Law Judge's Decision, as modified
herein, be, and it hereby is, dismissed.
IT IS FURTHER ORDERED that the election con-
ducted on October 6, 1978, in Case 26-RC-5823
be, and it hereby is, set aside and said case is
hereby remanded to the Regional Director for
Region 26 for the purpose of conducting a second
election at such time as he deems appropriate.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
s In the event no exceptions are filed as provided by Sec 102.46 or the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as prov ided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order. and all objections thereto
shall be deemed waived for all purposes
APPENDIX
NOrTICE To EMPLOYI-ES
POSTED BY ORDI)R OF THE
NATIONAI. LABOR REILATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives em-
ployees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE Wl l. NOT coercively interrogate our
employees concerning their membership in, ac-
tivities on behalf of, or desires regarding the
International Association of Machinists &
Aerospace Workers, AFL-CIO (IAM), or any
other union.
Wl: WiI.L. NOT threaten our employees, di-
rectly or by implication, that we would close
our Mena plant if the IAM, or any other
union, were selected as our employees' collec-
tive-bargaining representative.
Wt, WILl. NOT threaten our employees, di-
rectly or by implication, that the selection of
the IAM, or any other union, at our Mena
plant would inevitably result in strikes and
violence.
WE Wll.. NOT threaten our employees that
it would be futile for them to select the IAM,
or any other union, to represent them by tell-
ing them that we would not bargain in good
faith with said Union.
WE WIL L NOT threaten our employees that
they will be subject to discipline for alleged
violations of our no-solicitation rule based
solely upon complaints from other employees.
WE witL. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights guaranteed
by Section 7 of the Act.
U. S. ELECTRICAL MOTORS, A DIVI-
SION OF EMERSON ELECTRIC Co.
DECISION
STATEMENT OF THE CASE
ROBERT C. BATSON, Administrative Law Judge: This
consolidated proceeding under the National Labor Rela-
1345
DECISIONS OF NAT IONAI. I.ABOR RLATIO()NS BOARD
tions Act, as amended, 29 U.S.C. § 151, et seq. (herein
called the Act), was heard before me in Mena, Arkansas,
based on an order consolidating cases and complaint and
notice of hearing, issued by the Regional Director for
Region 26, on February 22, 1979, arising out of a charge
filed by International Association of Machinists & Aero-
space Workers, AFL-CIO, herein called the Union, on
October 17, 1978,1 and amended on November 17, and
objections to the election in Case 26-RC-5823, filed by
the Union on October 11, alleging that U. S. Electrical
Motors, a Division of Emerson Electric Co., herein the
Respondent or Employer, had violated Section 8(a)(l) of
the National Labor Relations Act, as amended (herein
called the Act), and committed certain conduct which
warranted setting aside the election conducted on Octo-
ber 7 and the direction of a new election.
The complaint alleges that Respondent violated Sec-
tion 8(a)(1) of the Act in numerous particulars by the
conduct of its supervisors between June 8 and October 4.
The petition for Certification of Representative in Case
26-RC-5823 was filed by the Union on July 26. A Stipu-
lation for Certification Upon Consent Election in an ap-
propriate unit2 was approved by the Regional Director
for Region 26, on August 21, pursuant to which a secret-
ballot election was conducted among the employees in
the unit on October 6, which resulted in a tally of ballots
reflecting that of 441 eligible voters, 200 cast valid bal-
lots for, and 213 cast valid ballots against, the Union.
Nine ballots were challenged. As a result of the investi-
gation of the Union's timely filed objections on Novem-
ber 21, the Regional Director issued his Report on Ob-
jections, recommending that Objections 1, 9, and 14 be
overruled and the remainder of the objections (Objec-
tions 2 through 16) be consolidated with the complaint
herein for hearing. On January 12, 1979, the Board
adopted these recommendations.
All parties were represented at the hearing by counsel
or other representatives and were afforded full opportu-
nity to participate by presenting evidence and testimony,
to examine and cross-examine witnesses, to make oral ar-
gument, and to file post-hearing briefs. A brief has been
received from counsel for the Respondent. The counsel
for the General Counsel did not file a brief, but made
oral record argument.
Upon the entire record in this case, :t including my ob-
servations of the testimonial demeanor of the witnesses
testifying under oath, and upon substantial reliable evi-
dence, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF I HE RESPONDENT
The Respondent is, and at all times material herein has
been, a corporation doing business in the State of Arkan-
sas, with an office and place of business located in Mena,
I All months and dates hereafter are 1978 unless otherwise indicaled
2 The unit is not identified in the record.
s The official transcript of these proceedings is replete with errors,
most of which are typographical and include misspellings and "phonetic"
spelling. The Respondent filed a motion to correct the transcript with rc-
spect to most such errors. The motion is hereby granted and the tran
script is corrected as requested therein. The molion is hereby made a part
of the official record.
Arkansas, where it is engaged in the manufacture and
sale of electrical motors. During the 12-month period
preceding the issuance of the complaint herein, Respond-
ent sold and shipped from its Mena, Arkansas, plant
products valued in excess of $50,000 directly to points
located outside the State of Arkansas.
The complaint alleges, the Respondent admits, and I
find that at all times material herein the Respondent was
an employer as defined in Section 2(2) of the Act, and
engaged in commerce and in activities affecting com-
merce as defined in Section 2(6) and (7) of the Act.
II. I HI I ABOR OR(;ANIZAIl (ON INVOL VEI)
The complaint alleges, the Respondent admits, and I
find that the Union herein is a labor organization within
the meaning of Section 2(5) of the Act.
111. THi, Al I. GLDI) UNIFAIR LABOR PRAC TICL:S
A. Disposition of Some Objections
The Petitioner's Objections 2, 3, 4, and 5 on their face
allege conduct occurring prior to the filing of the peti-
tion in Case 26-RC-5823, anid are therefore outside the
critical period and may not be considered as objection-
able conduct for the purpose of setting aside the election.
Goodyear Tire & Rubber Co., 138 NLRB 453 (1962). No
evidence was submitted in support of Objections 2 and 5.
Evidence was presented in support of Objections 3 and 4
which are co-extensive with the complaint allegations. In
accordance with well-settled Board law, this evidence
will be considered in assessing the impact of the Employ-
er's conduct during the critical period. Objections 2, 3, 4.
and 5 must be overruled, and they hereby are dismissed.
No evidence was submitted in support of Objections 6,
8, 16 and the portion of Objection 13 alleging the con-
duct of a Jack Robock. The conduct alleged in these ob-
jections are not coextensive with any complaint allega-
tion. Accordingly, Objections 6, 8, and 16 and that the
portion of Objection 13 relating to the conduct of
Robock are hereby overruled and dismissed.
Objections 7. 10, 11, 12, and 15 and that the portion of
Objection 13 alleging conduct of the Employer's presi-
dent, Russ Hale, are coextensive with the complaint alle-
gation and are the only objections now before me for
consideration.
B. Background
U. S. Electric Motors (hereafter USEM) consists of
five plants and is I of 40 to 50 divisions of Emerson
Electric Co. The five plants making up the USEM divi-
sion are located in Mena, Arkansas (the plant here in-
volved); Philadelphia, Mississippi; Durant, Oklahoma;
Los Angeles, California; and Prescott, Arizona. The em-
ployees of the plant at Prescott have been represented by
the International Brotherhood of Electrical Workers for
about 14 years and the employees of the plant at Los
Angeles has been represented by a Teamsters local union
for more than 10 years. The employees at the other three
plants are not represented by a labor organization.
The president of USEM, at times material herein, was
Russ Hale, who assumed that job on April 7. Hale is re-
1346
U. S. ELECTRICAL MOTORS
sponsible to, and directly supervised by, William Rut-
ledge, vice chairman of the board of directors of Emer-
son Electric Company. The Respondent contends that
Hale was recruited for that job because of his proven
management capabilities and the fact that USEM was in
serious trouble due to declining profits since 1975. Short-
ly after assuming the presidency of USEM, on April 11
and 12, a divisional planning conference was held at Mil-
ford, Connecticut, USEM's headquarters, wherein it was
determined that overcapacity, which was defined as
"maintaining more plant space and production capacity
than was being used," was one of the major factors con-
tributing to USEM's problems. At that conference
USEM's vice president of manufacturing, Maurice Tis-
dale, presented a proposal that the Los Angeles plant be
closed and its production be divided among the remain-
ing four plants. According to the Respondent, this pro-
posal was rejected because its new president had not
been involved in the planning and that the proposal may
have been too hastily drawn without sufficient study and
consideration. At this conference it was decided to
employ outside experts to study these operational prob-
lems and make recommendations for a solution.
The background set forth above is based on unchal-
lenged evidence and testimony, primarily the testimony
of Russ Hale, presented by the Respondent. Neither the
General Counsel nor the Charging Party presented any
evidence in conflict with that of the Respondent and ap-
parently do not contend that the operational problems
outlined by the Respondent are other than valid. The
Respondent contends that it is necessary to consider this
background, all of which preceded the advent of any
union activity at Mena, which commenced on May 13, in
order to assess whether or not its subsequent conduct,
specifically telling the employees the Mena plant might
be closed, was unlawful.
According to the Respondent, it took several months
to implement the plans made at the Milford conference
in April to obtain a competent consultant from outside
Emerson management to study the problems of USEM
and present a solution. In early August the Respondent
hired James D. Sutton, whom it contends by virtue of
education and experience was uniquely qualified, to
study and solve the problems of USEM. Russ Hale testi-
fied that he advised Sutton that in his opinion the only
solution to the Respondent's problems was to close one
of the five plants and he should direct his efforts toward
determining which plant to close.
Shortly thereafter, August 27, 28, and 29, Emerson
held its corporate planning conference in St. Louis, Mis-
souri, which involved all divisions and subsidiaries of
Emerson. According to Hale, the theme of the confer-
ence was to "fix the losers"; i.e., identify the divisions
with problems and devise a program to correct such
problems. If this could not be done Emerson "may
decide to divest itself of the loser." Hale testified that,
much to his surprise, USEM was cited throughout the
conference to the other divisions as a bad example, and
that he privately received severe personal criticism from
Emerson's top management.
Prior to leaving St. Louis, Hale sent telegrams to the
plant managers of his five plants scheduling a meeting
with them and their staffs for August 31 in Milford, Con-
necticut. The Mena plant manager, Jim Montgomery,
and several of his staff attended this meeting at which
Hale relayed to them the data he had been given at St.
Louis which reflected that in USEM production costs
were up although production was down 4 to 5 percent.
On-time deliveries had decreased 9 percent and scrap
and costs of rework was up to 18 percent and the inven-
tory of USEM constituted about one-half of its total
assets. According to Hale, the Philadelphia plant had
shown consistent improvement and the Durant plant was
acceptable except in quality. The efficiency of the other
three plants was poor with Mena falling the lowest in
almost all areas. He advised those in attendance that it
appeared that at least one and possibly two of its plants
would have to be closed and with the exception of the
Philadelphia plant that the ax could fall on any of the re-
maining four plants. Hale testified that there was no
mention of the union activity at Mena, or the unions rep-
resenting the employees at Prescott and Los Angeles.
Hale, as did Mongomery, testified that Hale instructed
the plant managers to advise all personnel in their plants
of these problems and seek their assistance in helping to
solve them.
The unfair labor practices attributed to Hale, Mont-
gomery. and Derwood Brett, editor-publisher of the
Mena Evening Star, herein alleged to be an agent of Re-
spondent, as set forth in paragraph 8 of the complaint
and the conduct of Montgomery as set forth in para-
graph 9(a) of the complaint arises directly out of this
background.
C. The Respondent's Campaign
Whether the operational problems at USEM, and par-
ticularly at the Mena plant, were real or, as the General
Counsel suggests, concocted as a vehicle of disguised
threats to close the Mena plant is not critical to the ulti-
mate resolution of the complaint allegations based there-
on. I am pursuaded by the record evidence that USEM
had problems and there was some urgency to solve these
problems for it to be a profitable division of Emerson.
However, unchallenged record evidence also conclusive-
ly establishes that the Respondent seized upon these
problems to interfere with, restrain, and coerce its em-
ployees in the exercise of their Section 7 rights in viola-
tion of Section 8(a)(1) of the Act.
According to the testimony of Montgomery, he re-
turned to Mena, the day following the Milford confer-
ence and telephoned Robert Partain, personnel manager
at the Durant plant and acting industrial relations man-
ager at the Mena plant, requesting that he come to Mena
and assist in solving the Respondent's problems. Partain
advised Montgomery that at the relatively small Durant
plant (150 employees), the Respondent was holding
meetings with all the employees and advising them of
the Respondent's precarious situation. Partain agreed to
come to Mena late on Wednesday following the meeting
with all the Durant employees.
When Partain arrived at Mena, Montgomery called a
meeting of his management staff and advised them of the
problems at Mena as he had learned at the Milford meet-
1347
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing. The following day, September 6, Montgomery and
Partain assembled all the Mena employees, unit and non-
unit, by shifts and told them bluntly that the Mena plant
was one of four in USEM that was under consideration
for closing unless it became profitable to Emerson.
Montgomery identified five particulars: productivity;
quality; tooling; maintenance; and energy conservation,
in which the plant needed to improve and solicited em-
ployees to volunteer to serve on employee committees in
one of these areas. Montgomery did not allude to the
union activity at the Mena plant at this meeting, but
couched the possibility of its closing solely in economic
terms.4 According to Montgomery, about 85 percent of
the Mena employees participated in this program and he
received more than 600 suggestions. Montgomery testi-
fied that the response of the employees was so great that
he and his staff were not competent to analyze and co-
ordinate the program. He contacted Bill Roof, an indus-
trial engineer of some 30 years' experience with Emer-
son, and solicited his assistance in coordinating this pro-
gram.
When Roof arrived at Mena, the decision was made to
give the employee participation program, which has been
used at other USEM plants. a name. Roof suggested, and
Montgomery adopted, T.I.P., total improvement pro-
gram, as the name. Thereafter the employees participat-
ing in the program met in groups by shifts.
The complaint alleges that Montgomery's telling the
employees on September 6 that the Mena plant could be
closed and his inviting them to participate in the pro-
gram to help solve the problems constituted an unlawful
threat to close the plant because of the union activity
and a solicitation of employee grievances with an implied
promise to rectify them. While there is a strong suspicion
that the Respondent seized upon the asserted precarious
status of the plants in USEM to engage in the scare tac-
tics suggested here in order to interfere with the employ-
ees Section 7 rights, I am pursuaded that Montgomery's
remarks on September 6 and the subsequent involvement
of the employees in the T.I.P. program did not violate
Section 8(a)(l). Although the election had been sched-
uled at that time and the Respondent was aware that the
union activity was peaking, Montgomery carefully
avoided mentioning the Union or the election in connec-
tion with possible reasons for the closing. The same is
true with subsequent meetings involving development of
the T.I.P. program. When matters were brought up
which might constitute a grievance, i.e., a cut in labor
grade, they were dismissed as being outside the scope of
the five problem areas with which the Respondent was
concerned.
The complaint alleges that, in speeches to all employ-
ees on October 3, Montgomery threatened plant closure
because of the union activity and implied the inevitability
of strikes and violence if the employees selected the
4 Many witnesses testified regarding this September 6 meeting, only
two of which, Kenneth Halcumb and Stanley House, testified that Mont-
gomery injected the union activity at Mena into his remarks. Neither
Halcumb nor House was certain that it was this meeting rather than a
later one where Montgomery made the remarks attributed to him The
preponderance of record evidence convinces me that there was no sug-
gestion or mention of the Union at this meeting.
Union, and that Russ Hale threatened plant closure be-
cause of the union activity in speeches to all employees
on October 4. In the same vein it is alleged that the Re-
spondent's agent, Derwood Brett, threatened plant clo-
sure in an article and editorial published in the Mena
Evening Star on October 4.
In order to assess the impact of the conduct alleged
here which constitutes a theme of clear unlawful inter-
ference, restraint, and coercion of the employees Section
7 rights, it is necessary to set forth some intervening
events. A week or so after returning from Milford,
Montgomery attended a local Lions Club meeting where
he was asked to comment on rumors that USEM's Mena
plant might be closed. After asking that his remarks not
be quoted, based on the testimony of Montgomery and
Brett, Montgomery told the group essentially what he
had told the employees concerning the reasons for possi-
ble closure and the steps being taken to try to avoid it.
Montgomery was asked if the union activity at the plant
had any bearing on its closing. According to Montgom-
ery, he told them "those were two separate problems
and that one had no bearing on the other." However,
Montgomery continued that in his opinion the Union
was not needed since the campaign was causing dissen-
tion and diverting everyone's attention away from solv-
ing their operational problems. Montgomery added that
the important question was not whether or not there was
a union, but whether they could solve their problems.
Immediately after this meeting, Derwood Brett, pub-
lisher-editor of the Mena Evening Star, requested per-
mission to publish an article based on Montgomery's re-
marks. Montgomery denied permission until he could
check with his corporate attorneys. It was not until early
during the week of the election that Montgomery au-
thorized Brett to publish an article based on his remarks.
The publication of this article and the editorial coincided
with the meetings held with the employees by Montgom-
ery and Hale wherein the theme of strike violence and
the inevitability of the plant closing because of the Union
was developed.
On the front page of the October 4 edition of the
Mena Evening Star under Brett's byline, he published an
article headlined, "Beginning January 1, 1979 U.S.
MOTORS MAY CLOSE." The article does not mention
Montgomery but purports to quote L. L. Morrow, who
appears to be a member of the Mena Industrial Develop-
ment Board, and was instrumental in persuading Emer-
son to build the plant at Mena. While the article deals
largely with the prospect that the plant would very
likely close for economic reasons and the impact it
would have on the community, Morrow is quoted as
saying, "U.S. Motors might not be able to 'turn this
thing around' with the problems they are having with ef-
forts to unionize the plant. I can really see no good the
union would do out there. We see regularly in the press
where violence and turmoil is normal for union oper-
ations nowadays." In the same edition Brett published an
editorial dealing in large part with the theme that union-
ization of the Mena plant would inevitably lead to strikes
and violence and the closing of the plant. He stated, "the
1348
U. S. ELECTRICAL MOTORS
issue is more than union or no union-it could be plant
or no plant."
Prior to dealing with the General Counsel's contention
that Brett was acting as Respondent's agent in publishing
these items which constitute an unlawful threat of plant
closure, or, in the alternative, this was third-party con-
duct which the Respondent had a duty to disavow, a dis-
cussion of the October 3 and 4 meetings with the em-
ployees may be helpful. There is little dispute concerning
the October 3 meetings with the employees which were
conducted by Montgomery and Industrial Relations
Manager Robert Partain. Essentially all the unit employ-
ees were summoned in groups of about 30 to the south
conference room where Montgomery and Partain ad-
dressed them concerning the Union and the forthcoming
election. Displayed around the room were numerous
posters, newspaper clippings, and pictures dealing with
strikes, violence, and plant closures, particularly the clos-
ing of a plant in Shelbyville, Tennessee. While the
record is not clear, it appears that at each of these meet-
ings Montgomery's opening remarks were to the effect
that he could be spending his time better trying to solve
the plant's problems and keep it open, but that it was
necessary for him to talk about the Union. He told them
if the Union came in he would have to divide his time
between preparing for negotiations and solving their
problems to keep the plant open. He and or Partain al-
luded to the posters and newspaper clippings and stated
that of the 18 Emerson plants that had been closed 13
were Union. There was a poster outlining the length of
strikes by I.A.M. at Emerson plants and Montgomery
told them that I.A.M. had to strike for every contract
that it had gotten at an Emerson plant.5 In at least one
meeting, in response to an employee's question as to
whether the plant would close if the Union came in,
Montgomery said the "question in Mena was not union
or no union but plant or no plant."
On October 4, USEM's president, Hale, addressed the
employees on each of the three shifts, as did two other
company officials. Hale talked about the Company's
operational and financial problems, and alluding to a
union handbill stating that the Company's T.I.P. program
was just "sweet talk," a "sham," and "a psychological
trick," asked the employees if I.A.M. were the type of
Union that would help or hurt them. He stated that it
was a bad time for the I.A.M. to try to organize the
Mena plant, that he had enjoyed coming to Mena and
meeting the people, but if he had to make the decision to
close the plant he would make it.6
As indicated above, it appears that with the exception
of a number of alleged instances of individual interroga-
tion and threats discussed below, the Respondent did not
engage in any organized campaigning until the week of
the election. However, for a month prior to the election
management officials had been telling the employees that
5 The Respondent argues that this was in response to the Union's claim
that it secured 98 percent of its contracts without a strike.
s I have not endeavored to set forth all versions of the eight employee
witnesses and that of Montgomery and Hale, with respect to this meet-
ing. The findings as to what Hale said at these meetings made above are
not in dispute. Only one witness, Cogburn, testified that Hale made the
direct statement that if the Union came in he would close the plant. I do
not credit Coghurn in this respect
it must improve its profit factor or there was a possibility
that the Mena plant might be closed for economic rea-
sons. As found above, there is some evidence supporting
the Respondent's contention that the Mena plant was un-
profitable and would have to improve in order to remain
open. The newspaper article and editorial, and the com-
ments of Hale and Montgomery, here under considera-
tion, must be assessed in the context of Respondent's
operational problems.
The newspaper article and editorial, as did Hale and
Montgomery, stated that if the plant closed it would be
for economic reasons. The central theme of these written
and oral statements clearly conveys the threat that the
election of union representation at USEM in Mena
would inevitably bring strikes and violence and just as
inevitably lead to the closing of the Mena plant. The lip
service paid to closing for economic reasons does not
disguise these threats. I am convinced, and I find, that
the Respondent exaggerated the plight of the Mena plant
as a vehicle to threaten its employees with plant closure
if the Union won the election. The statement to the
effect that in Mena the question was more than union or
no union, but plant or no plant, which was apparently
coined by Montgomery at the September Lions Club
meeting and used by Brett in his editorial and again by
Montgomery in his meetings with the employees on Oc-
tober 3, can leave no doubt in an employee's mind that
selection of the Union at Mena places his job in great
peril. It is well settled that such "serious harm" state-
ments tend to coerce employees in the exercise of their
Section 7 rights. Community Cash Stores. Inc., 238
NLRB 265 (1978). Cf. Chrysler Airtemp South Carolina.
Inc., 224 NLRB 427 (1976).
Turning to the question of whether Derwood Brett
was acting as an agent of Respondent in his October 4
publication, and, if not, whether Respondent had a duty
to disavow the statements. On the facts here, I find that
Brett was acting as an agent of the Respondent in the
conduct of the Respondent's campaign. First, Montgom-
ery addressed the Lions Club in early September but de-
clined to give Brett permission to publish an article based
on his remarks until the week of the election which coin-
cided with the Respondent's campaign.7 From reading
the article Brett published, one might ponder why Brett
sought Montgomery's permission, since the article does
not quote or mention Montgomery or attribute any of
the statements to him. It is clear that Montgomery gave
Brett permission to print something, apparently without
reserving and right to review the article before publica-
tion. The theme of the article and editorial are identical
with the theme of the remarks made to the employees by
Montgomery and Hale on October 3 and 4. Thus, far
from disavowing the import of these printed articles, the
Respondent accentuated the threats in its October 3 and
4 meetings. See Hamburg Shirt Corporation, 156 NLRB
511, 523 (1965), wherein the administrative law judge
cited the Supreme Court's language in International 4Asso-
ciation of Machinists; Tool and Die Makers Lodge No. 35
[Serrick Corp.] v. N.L.R.B., 311 U.S. 72, 80 (1940):
7 Hrett testified that he would have published the article even without
Montgomery's permission.
1349
DECISIONS OF NATIONAL. LABOR REL ATIONS BOARD
The employer . . . may be held to have . . . [vio-
lated the Act] even though the acts of the so-called
agents were not expressly authorized or might not
be attributed to him on strict application of the
rules of respondent superior. We are dealing here not
with private rights . . . nor with technical concepts
pertinent to an employer's legal responsibility to
third persons for acts of his servants, but with a
clear legislative policy to free the collective bar-
gaining process from all taint of an employer's com-
pulsion, domination, or influence.
Accordingly, I find that as alleged the October 4 pub-
lication of the news article in the Mena Evening Star, as
discussed above, and by Montgomery's and Hale's state-
ments to the employees on October 3 and 4, respectively,
Respondent unlawfully threatened its employees with
plant closure, and it further coerced its employees in Oc-
tober by Montgomery's telling them that the "union had
a 100 percent strike record with the Respondent and im-
plied that if the employees voted the union in violence
would result."
The complaint alleges that Respondent by its supervi-
sor, Philip Crosby, about June 16, and its supervisor,
Danny Titsworth, during August, promulgated and en-
forced an overly broad invalid no-solicitation rule, and
that Titsworth threatened to take disciplinary action for
violating the rule. The Respondent contends that it had
maintained a valid no-solicitation rule for a number of
years and that employees were advised of the rule when
they were hired and the rule had been posted on its bul-
letin board. Received into evidence is a copy of the pur-
ported rule:
We all know that no matter what issue is in-
volved, unwanted solicitations during working time
can result in irritation and personal inconvenience.
In addition, where such activity takes place during
working time, we feel that there can be an adverse
effect on production. Accordingly, to maintain har-
mony and cooperation and avoid any confusion as
to the meaning of our current solicitation-distribu-
tion rule, the following revision has been adopted.
No-Solicitation/Nlo-Distribution
Employees will not be permitted to sell or solicit
in any plant area during their working time. Em-
ployees will not be permitted to distribute circulars,
handbills of literature of any type during their
working time or at any time in any working area of
the plant.
/s/ Jim Millspaugh
Industrial Relations Manager
The only evidence as to when this rule and its expla-
nation were promulgated was based on the fact that it
was signed by Jim Millspaugh, industrial relations man-
ager, who had left the Company more than a year before
the advent of the Union. There is no evidence that the
rule was ever enforced. However, as argued by the Re-
spondent in its brief, there is no evidence that the rule
was ever violated. While two employee witnesses testi-
fied that they had never seen, or been informed of, the
rule, it appears that the General Counsel is not contest-
ing the existence or validity of the written rule. Rather,
these allegations are predicated upon testimony of oral
communications of an invalid rule.
In mid-June, John D. Williams, a patrol inspector with
the Respondent, was inspecting parts on the veridisc and
talking with employee Thomasson, as he (Williams) was
making notes of his inspection on a small note pad with
an I.A.M. logo. He was observed by Supervisor Philip
Crosby, who testified that he thought the note pad was a
union card and that Williams was soliciting Thomasson
to sign the card. Crosby approached Williams, who
quickly put the pad in his shirt pocket and went to a
parts basket and began checking parts. According to
Williams, Crosby came up to him and told him he would
regret having to let him go for passing out union cards,
but that is exactly what he would do if he caught him
again. Williams initially testified that he immediately
denied that he was passing out union cards. However, on
cross-examination, and in agreement with Crosby's testi-
mony, it was not until the following day that he went to
Crosby and denied passing out cards and explained what
he was doing. Both Crosby and Williams testified that
Williams told Crosby that he was protected by the "Na-
tional Labor Laws." Apparently the day of the incident,
Crosby reported it to General Foreman Joe Monaco, and
looked at the section of the Act referred to by Williams.
The following day Williams denied to Crosby that he
had union cards and explained what he was doing.
Crosby took Williams to Monaco's office where Williams
gave the same explanation. Both men then apologized to
Williams for the incident.8
Williams denied that he had seen or was aware of a
no-solicitation rule except that some employees had in-
formed him of such rule.
Employee Paul Herrman testified that about mid-June,
or 6 weeks after the union campaign started, Supervisor
Danny Titsworth came to him and told him he was
going to have to give him a warning. Titsworth told him
the Company had a no-solicitation rule and he could not
solicit on company time. He denied soliciting except
during lunchbreaks and after work. Titsworth told him
he could not solicit during breaks since the Company
continued to pay for that time. Titsworth told him he
had received a number of complaints about his talking to
people and if it continued he would have to punish him.
According to Titsworth, he received complaints from
two new employees that Herrman was talking with them
about the Union in the shop. He then went to Herrman
and explained the no-solicitation rule and that he could
not solicit "during the time we were supposed to be
working." Herrman denied that he had engaged in any
solicitation and asked Titsworth if he were accusing him
of such. Titsworth told him no but, if he received any
T he foregoing is not in dispute except that, by Crosby's version of
the incident, he merely asked Williams not to put him on the spot by so-
liciting in the plant on company time. He denied that he threatened any
disciplinary action. I agree with the Respondent that it makes little, or
no, difference which version is credited. By Williams' version there is a
direct threat of punitive action, and by Crosby's there is a clearly implied
threat of such action
1350
U. S. ELECTRICAl. MOTORS
more complaints, he would have to take disciplinary
action.
First, I am convinced and find that Respondent had in
effect the valid no-solicitation rule set forth above. Nei-
ther Williams nor Herrman was impressive witnesses. As
noted above, Williams initially insisted that he immedi-
ately denied to Crosby that he was soliciting, and it was
not until Respondent's attorney extracted from Williams
the admission that on the day before the hearing, during
an interview with him, Williams had told him for the
second time that it was not until the next day that he
made such denial, that Williams changed his testimony to
comport therewith. Furthermore, Williams testimony ap-
peared, at times, to be confused, possibly due to the fact
that he had little present recollection of what had oc-
curred the previous June. With respect to Herrman, his
memory of the events to which he testified appeared to
be vague. His denial of any knowledge of a no-solicita-
tion rule has some doubt cast upon it by his testimony
that he denied to Titsworth that he was talking about
union except at lunch and after work. Be that as it may,
the testimony of Crosby, Titsworth, and other manage-
ment officials that such rule had been in existence for
several years and employees had been informed of the
rule upon hire and by posting in the plant, is more per-
suasive, and I so find.
Turning first to the Crosby-Williams incident. I find
the General Counsel has not proven the allegations of
paragraphs 14(a) and (b) of the complaint which this evi-
dence was designed to support. From what the undisput-
ed facts demonstrate, I find Crosby had reasonable cause
to believe that Williams was violating the no-solicitation
rule. The note pad upon which Williams was w'riting
was similar to the I.A.M. authorization cards. Upon
Crosby's approach, Williams rapidly concealed the note
pad and departed Thomasson's company. These acts
could reasonably appear to indicate that Williams had
something to hide. Williams' failure to immediately deny
solicitation, but instead alluding to protection by "Na-
tional Labor Laws" could reasonably further indicate
that Williams was engaged in union activity. On these
facts, Crosby's telling Williams that he would regret
having to let him go for passing out union cards, and
that's what he would do if he caught him again, is not a
violation of the Act.
In Hildebrand Company, 198 NLRB 674 (1972), cited
by the Respondent, the Board held that Respondent did
not violate the Act when, upon recalling a laid-off em-
ployee, it read him the following message:
When you were here last, we were advised by some
of the employees that you were soliciting cards and
discussing union matters during working hours. You
were told during a warehouse meeting that union
problems could be discussed at any time except
during working hours. Since you did not heed this
policy, I must tell you that we are glad to have you
back on the job but must advise that if you work on
union matters during working hours when you are
paid to do work for the company, that we will con-
sider this cause for discharge.
The Board, reversing the Administrative Law Judge,
concluded that the above statement did not violate the
Act, but was merely a statement that it would police the
rule against violations. This conclusion was apparently
predicated upon the rationale that where an employer
has reasonable cause to believe that an employee has vio-
lated its rule, here based on reports by other employees,
that it may advise the employee that violations will be
considered cause for discharge.
Accordingly, when Crosby had reasonable cause to
believe that Williams was in violation of the rule. his
statements to him to the effect that he would regret
firing him for such activity but would do so if he caught
him again are not unlawful.
Now for consideration of the Titsworth-Herrman inci-
dent. I consider Titsworth's denial that he told Herrman
that he could not talk about the Union during breaks to
be far more credible than Herrman's testimony to the
contrary. Based on employee reports that Herrman was
talking about the Union in the shop, under the rationale
of Hildebrand, supra, Titsworth's reminding Herrman of
the no-solicitation rule does not violate the Act. Howev-
er, Titsworth's telling Herrman that if he received fur-
ther complaints he would have to take disciplinary
action is unlawful and tended to coerce Herrman in the
exercise of his Section 7 rights. The distinction, as I per-
ceive it, between Titsworth's threat to take disciplinary
action and the statements made by Crosby and the super-
visors in Hildebrand, is simply that Titsworth threatened
disciplinary action based on employee reports and not
based on a determination that Herrman had in fact vio-
lated the rule.
Accordingly, I find the threat to be a violation of Sec-
tion 8(a)(1) as alleged.
The complaint alleges that, on or about October 4. Su-
pervisor Joe Simmons threatened employees with plant
closure because of their support for the Union. A short
time before the election, employee Roy Cogburn's super-
visor, Joe Simmons, approached Cogburn at his work
station and asked him if he had read the company litera-
ture mailed to him concerning the Union. Cogburn told
him he had, and, on being asked what he thought about
it, told Simmons he "thought it was all a fairy tale, and
[I] didn't believe it." Simmons told Cogburn that the
Union did not care anything about him, "they're just a
business." Simmons then asked Cogburn what he thought
the Union could do for him and Cogburn spelled out
several benefits which he thought the Union could get.
Simmons told Cogburn the Company would not negoti-
ate for those benefits, but would close first. Simmons
continued by asking Cogburn if he would vote for the
Union if it meant everybody's job at the plant. Cogburn
responded that he did not believe that it did.9
Simmons admits asking Cogburn if he had read the
company literature and telling him he did not think the
Union would do him any good. Simmons does not deny
asking Cogburn what he thought the Union could do for
him, but testified that Cogburn named a few items he
thought the Union could get. He did not recall the items,
t I he foregoing findings are bhased on Coghurn's credited testimony.
1351
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but stated that "whatever it was, was ridiculous." Sim-
mons testified that he told Cogburn the Company would
not give more than it could afford and that if the union
got in, "and they got a strike that we'd all, may lose our
jobs." Simmons testified he did not believe he asked
Cogburn how he was going to vote because he already
knew. I"
Although the foregoing incident is alleged in the com-
plaint only as a threat of plant closure, in view of the
fact that the entire conversation was fully litigated at the
hearing, in addition to a threat of plant closure, I find
and conclude that there was coercive interrogation and a
threat that the Respondent would not bargain in good
faith.
The complaint alleges that on or about June 17 Super-
visor Philip Crosby coercively interrogated employees
concerning their union activity and that on or about June
8 and 15 Supervisor Bill Warren interrogated and re-
stricted an employee to his work area to induce the em-
ployee not to support the Union. The General Counsel
attempts to support both allegations by the testimony of
John D. Williams, whom, heretofore I have not credited
when his testimony was at odds with credible testimony.
With respect to the allegation of interrogation there is
little conflict between the testimony of Williams and
Crosby. The findings in this regard are based on Cros-
by's testimony. The first part of June, Williams reported
to work with a new "pocket protector" and a new
"pen," each bearing the I.A.M. logo. Crosby werit to
Williams and told him he knew he was involved in the
Union, and he hoped it would not interfere with his in-
spection, and that he would not be doing anything on
Company time involving the Union. Williams replied that
the fact he had the I.A.M. protector and pen did not
mean he was for or against the Union.
The Respondent argues, as to this incident and all the
8(a)(l) allegations discussed below, that such incidents
are innocuous and isolated and do not rise to the level of
unfair labor practices or objectionable conduct when ad-
dressed to known union supporters. In PPG Indltu.rie.s
Inc., Lexington Plant I'fher Class Division, 251 NlR13
1146 (1980), the Board recently reaffirmed its position
that inquiries which probe into employee's union support
reasonably tend to coerce employees even when ad-
dressed to those who have openly declared their union
sympathies, and as it held in Pavceo. a Division of Freu-
hauf Corporation, 237 NL.RB 399 (1978), and .4naconda
Co.-Wire and Cable Div., 241 NLRB 1091 (1979), even
in the absence of threats of reprisals or promises of bene-
fits. In doing so, the Board specifically overruled its De-
cision to the contrary in Stumpf Motor Company. Inc.,
208 NLRB 431 (1974), and B. F. Goodrich Footwear Com-
patty, 201 NLRB 353 (1973).
Accordingly, I find that Crosby's comments to Wil-
liams concerning his involvement with the Union as iidi-
"' As noted abolve I credit Cogburn's more cogent and detailed ser-
sitn of this conversation Simmons' recollection of the conversation was
vague and to an extent incolnsistent. For instance, he testified that he did
not know whether Cogburn mentioned specific benefits, but added,
"whatever it was, was ridiculous" Similarly, he could not reca;l s htlher
Coghurn said he had read the compalily literature, but added. '[Alnyway.
he didn't believe it."
cated by his union-inscribed pocket protector and pen
constitutes coercive interrogation and his admonishing
him not to do anything concerning the Union on compa-
ny time constitutes an unlawful broadening of the no-so-
licitation rule.
With respect to the Warren incident, Williams testified
that in June he was in the area of the "NC checker"
which was supervised by Bill Warren. Warren ap-
proached Williams and told him that he knew he had
been talking about the Union to employees in that de-
partment-"he was not saying that I was doing it then,
but that I had been," and that, since the machine was set
up, no inspection personnel was required and he should
leave the area. According to Williams, a patrol inspector,
he normally had occasion to be in that area three or four
times a shift and had never been told to leave before.
Warren did not testify.
While Williams testified to the reason he was in the
area, he does not contend that his presence there was for
a legitimate reason once the machine was set up. Also
Williams did not deny to Warren that he had been talk-
ing with employees about the Union while on that end of
the plant as Warren had accused him.
Even in the absence of a denial or explanation by
Warren, I find and conclude that the General Counsel
has failed to sustain the allegation that this incident vio-
lates the Act.
The complaint alleges that, during May, Supervisor
Donny Titsworth interrogated employees concerning
their union activities. The testimony of Paul Herrman is
presented in support of this allegation. Herrman testified
that about once a week during May and June Titsworth
came to his desk and asked him how he felt about the
Union, whether he was for or against it. On another oc-
casion Titsworth asked him if he had made up his mind
and showed him a factsheet prepared by the Company
for supervisors. On one occasion Titsworth asked if he
had read that the average strike at U.S. Motors was 8
weeks and if he were still going to go for it.
Titsworth admitted having several conversations with
Herrman during May and June where the subject of the
Union came up, but did not state who initiated such sub-
ject. According to Titsworth, Herrman seemed unsure
about the Union and Titsworth invited Herrman to ask
him any questions that he wanted and if he did not know
the answer lie would find out. He also admitted that he
showed Herrman the supervisor's fact book about the
Union and Herrman told him he had already "looked
into it," and had "decided he was going to go with the
union."
As heretofore noted, the demeanor of Herrman testify-
ing under oath was not favorable in large part, whereas
Titsworth's testimony had a ring of truth. While Tits-
worth specifically denied that he asked Hlerrman how he
was going to vote in the election or how he felt about
the Union, his testimony was very general with respect
to how the subject of the Union was initiated into their
discussions. In any event, the Board has held that, where
supervisors engage employees in conversations about a
union where such conversations are designed to ascertain
their union sympathies, such conduct constitutes coer-
1352
U. S. ELECTRICAL MOTORS
cive interrogation whether or not couched as an interro-
gatory.
Accordingly, on the facts here, Titsworth's engaging
Herrman in conversations about the Union on several oc-
casions and offering to obtain answers to any questions
he might have, were clearly designed to ascertain his
union proclivity and convince him to the contrary. Thus,
while there were no threats of reprisals or promises of
benefits in connection therewith, I find under the ration-
ale of PPG Industries. Inc.. supra, that such conduct vio-
lated Section 8(a)(l) of the Act.
The complaint alleges that, in September, Supervisor
Pete Oliver interrogated employees concerning their
union activity and solicited employees to persuade fellow
employees not to support the Union. Testimony in sup-
port of these allegations was elicited from James Fletch-
er.
According to Fletcher, he was hired by the Respond-
ent for the second time in August by General Foreman
Pete Oliver and Personnel Manager Bob Irish. During
the employment interview, Fletcher told Irish that he
understood the Union was trying to get into the plant
again and Oliver replied that they did not need a union,
that it would be the worst thing they could have. I find
that Fletcher volunteered to Oliver that he had voted
against the Union in the last election. According to
Fletcher, Oliver then asked him to talk to his brother
who was also an employee at USEM.
According to Oliver, whom I credit, II he interviewed
Fletcher for a job and, after hiring him, Fletcher com-
mented on a place that he had worked in Oklahoma
where the union was campaigning. Oliver told him of
the current campaign at USEM at which time Fletcher
volunteered that he did not vote for the Union the last
time. Oliver replied he was glad to hear that and hoped
he felt the same way this time, and he hoped his brother
felt the same way. Fletcher volunteered to talk to his
brother and Oliver said that would be appreciated.
Fletcher did not complete a new employment application
on this occasion.
On the facts as found here, the General Counsel has
failed to sustain his burden of establishing by a prepon-
derance of evidence that the Act was violated during
this employment interview. It was Fletcher, the appli-
cant, not Oliver, the supervisor, who injected the Union
into the conversation. Fletcher volunteered his union
sentiments during the last election, and Oliver's comment
that he hoped he felt the same way "this time" falls short
of interrogation. Similarly, Oliver's telling Fletcher that
he would appreciate Fletcher's volunteered service of
talking with his brother falls short of soliciting him to
persuade his brother not to support the Union.
The complaint alleges that, on or about October 3, Su-
pervisor Charles Vaught unlawfully interrogated em-
ployees concerning their union activities and that during
July he coerced employees by telling them that if the
Union were voted in it would never get a contract and
" Fletcher's testimony is disjointed and. at times, incoherent, which
indicates that he had little present recollection of what was said at his
employment interview He had to he led by the General Counsel into
making some of the most critical statements.
that the Company would pay as much without a union
just to keep it out.
The interrogation allegation is based on the testimony
of Maxine Bates who testified that, on October 3,
Vaught came to her table and after greeting her asked.
"[W]ell how is the election going on Friday?" She re-
plied, "We'll know Friday." Vaught then asked, "[a]re
you for the company or are you for the union?" She re-
plied that it would not be a secret ballot if she told him.
Vaught admitted to the interrogation of Bates on a
number of occasions during the campaign, testifying that
they had been friends for a long time and she made no
secret of how she felt about the union. He testified that
he asked her if she had decided to vote for the Company
and admitted asking her how the election was going to
go. The foregoing clearly constitutes unlawful interroga-
tion under PPG Industries. Inc.. supra.
The remaining two allegations with respect to Vaught
are based on the testimony of James Bowling. Bowling
testified, which testimony is not disputed by Vaught, that
Vaught came to his work station and told him that Par-
tain had asked him to talk with him and instructed Bowl-
ing to accompany him to Supervisor John Holomshek's
office. Although the record is not clear, it appears that
employee Laren Dean had reported that Bowling had
talked with him about the Union on working time.
Vaught apparently told Bowling this and Bowling ad-
mitted that a conversation with Dean had gotten around
to the Union and told Vaught he would not do it again.
According to Bowling, Vaught then alluded to the prob-
lems the Milford plant employees had with the union and
told him the Company would pay the employees as
much as they could get with the Union just to keep the
Union out.
Vaught admitted the foregoing except that he testified
that he told Bowling the Company would pay as much
as it could afford to pay, with or without a union.
Vaught's testimony is far more credible than that of
Bowling, whose testimony was not altogether lucid or
cogent. Accordingly, I credit Vaught, and find that his
comment that the company would pay as much as it
could afford with or without a union is not coercive and
does not violate the Act. Bowling gave no testimony
concerning a threat that the Union would never get a
contract. Accordingly, these allegations are dismissed.
The complaint alleges that Supervisor John Holom-
shek, during June, threatened employees with the loss of
benefits and wages if the Union were voted in. This alle-
gation is based on the testimony of Willard Richardson
and Stanley House. According to Richardson, some time
in June, Holomshek accompanied him to the office of
Supervisor Paul Havens where Havens discussed with
him unions in which Havens had been a member. 12 As
Richardson and Holomshek were returning to Richard-
son's work area, Holomshek told Richardson "that if the
people out there asked for a dollar an hour increase, the
plant would close down."
Holomshek, who left Respondent's employ on July 28,
testified with respect to this incident, that, as he and
12 Havens' conduct is not alleged as an unfair lahxr practice
1353
DECISIONS ()F NATIONAL LABOR RELATIONS BOARD
Richardson were returning to Richardson's work area,
Richardson made a statement to the effect that the Union
would get them a $1-an-hour increase. Holomshek re-
plied that Emerson was a pretty big outfit and in busi-
ness to make money and if it came to the point where
the plant would lose money by granting an across-the-
board increase of $1 an hour, he "would imagine they
would think seriously about closing it down." I credit
Holomshek's more detailed version of this incident.
While I do not believe that Richardson was deliberately
bearing false witness, I am convinced that his version
failed to reveal all the surrounding circumstances of the
conversation. If tHolomshek's remarks constitute a viola-
tion of the Act, it is not a threat of loss of benefits, as
alleged, but a threat of plant closure. However, the issue
was fully litigated without objection and will be consid-
ered under the criterion of threat of plant closure. In my
opinion, Holomshek's remark, that, if the plant lost
money by having to give a $1-an-hour increase, he
thought Emerson would think seriously about closing it,
is not an unlawful threat of plant closure. This statement
is similar to that of the employer in Loomis Courier Serv-
ice, Inc., 235 NLRB 534, (1978), "that it would close the
branch should the Union insist on demands that would
cause a marked increase in costs." In that case, as here, it
appears that the branch was already in a somewhat pre-
carious economic situation T he Board found the re-
spondent's statement to be lawful. Here, Holomshek was
merely expressing his opinion of an option he thought
Respondent might consider if wage demands made the
plant unprofitable.
According to Stanley House, who was apparently a
close personal friend of Holomshek, one day in June as
he was returning from lunch Holomshek looked at him
and shook his head and said, "I can't believe this."
House asked what, and Holomshek said, "I can't believe
you are mixed up in this union deal." House asked what
was wrong with it, and Holomshek said, "[W]ell . . .
you know you're going to lose everything you've got
.... .You're going to go back to zero and everything
starts all over again."
Holomshek admitted a conversation with House about
the Union where they discussed negotiations, bargaining,
and contracts. He told House negotiations start at zero
and fluctuate up and down from there.' :3 He testified
that he told House that the Union could possibly bargain
away some of the benefits they already had "in order to
gain something they really have their mind set on."
Holomshek was a very impressive witness and I credit
his version of this incident over that of House, who testi-
fied that he made notes of the conversation and turned
them over to the Union. The Union claimed the notes
were in Dallas, Texas, and were not available at the
hearing for purposes of cross-examination. Whether
statements of "bargaining from scratch" or from "zero"
are unlawful depends on the context in which they are
uttered. Generally, where, in context, the term indicates
that existing benefits will be lost or reduced and the
union must bargain to regain them, the statement is un-
t' Holomshek testified that he meant bargaining would start from
where they were However, he does not contend that this is what he told
House.
lawful. However, where the statement indicates bargain-
ing will start with all present benefits and some may be
lost as a result of bargaining, the statements are lawful.
Here, Holomshek explained what he meant by saying the
Union could bargain away present benefits in order to
get "something they really have their mind set on." Ac-
cordingly, I find this allegation has not been sustained
and will recommend that it be dismissed.
The complaint alleges that in August Supervisor Rick
Selby threatened employees that if the Union were se-
lected at the Mena plant the Company would have to
make an example out of it to keep the Union out of its
other plants, and, as amended at the hearing, that on or
about October 2 Selby interrogated an employee con-
cerning his union activities.
Turning first to the alleged interrogation, James Craig
Pate testified that, on October 2, Selby came up to him
and said, "How are you doing Pate?" Pate replied,
"[A]lright except for the wrestling [sic] [hassling], I'm
catching back here." According to Pate, Selby talked on
for awhile and then said, "[Y]ou ain't going to vote for
that union are you?"
Selby admited a conversation with Pate on October 2,
where he asked Pate, a known union adherent,14 how
things were going. Pate told him he wanted to talk with
him and complained about "people riding [me] back
there." Selby asked why he thought they were riding
him and Pate said because he was going to vote for the
Union. Selby told him he had a right to vote as he
wanted and that others had a right to their opinion.
I cannot credit Pate's version of this incident based on
his testimony at the hearing. In October, prior to the
hearing, Pate gave affidavits to the General Counsel and
the Respondent wherein he stated only that Selby asked
him how he was doing and he volunteered that he was
going to vote for the Union. Apparently, only a week or
so before the hearing, he told counsel for the General
Counsel that Selby had only asked how he was doing. It
was not until the hearing that he remembered that Selby
had asked how he was going to vote in the election. Ac-
cordingly, I cannot credit him. I find no unlawful inter-
rogation in Selby's version of this incident and recom-
mend that it be dismissed.
On the evening of the day in August when the elec-
tion agreement was signed, Selby went to the local Elks
Lodge where he encountered employees Richard Milli-
gan, Mel Epperson, and Ray Baker and informed them
that the date had been set for the election. Milligan ob-
served that he was glad it had finally come. According
to Milligan, Selby talked about a union plant in which he
had once worked and how he got to work when there
was a strike. Selby also asked how they would feel if
their children were starving. Apparently the Union was
the chief topic of discussion. Later, again according to
Milligan, Selby said, "[W]ell, there's one thing about it,
that if this plant goes Union here . . . well, they'll have
to make an example out of this plant being Emerson in
order to keep the rest of their plants from going Union."
Neither Epperson nor Baker testified.
1' Pate had I.A M. stickers on his person and work station.
1354
U. S. ELECTRICAL MOTORS
Selby testified that Milligan complained about his pay
and having to drive an old car and said he thought it
was time all that changed and that the Union would get
them a $1 or $2 raise. Selby replied that he did not think
that would happen and that Emerson had a lot of other
plants and the Mena plant would be judged along with
the others for profitability. He continued that the Mena
plant was "having a crucial time," and there were a lot
of other plants to be looked at and judged before any-
thing happened. Selby said in his opinion they could not
afford to give everything the people said they wanted.
In my opinion, neither Milligan nor Selby deliberately
prevaricated in reciting their recollection of what was
said in this "bar" talk. As Respondent observed in its
brief, from their testimony both Milligan and Selby ap-
peared to be "big talkers." Selby's emphasis on the fact
that Emerson had a great many other plants, which were
known by all to be both union and nonunion, against
which the Mena plant must be judged might well have
suggested to Milligan that Selby was indicating that Em-
erson might make an example out of the Mena plant. In
the context in which this discussion occurred, I am con-
vinced, and I find, the statements were not coercive and
did not violate the Act.
The complaint alleges that in September Supervisor
La Dayrl Knight threatened employees that the Compa-
ny would not negotiate with the Union and that employ-
ees would be discharged because of their union activities.
These allegations arc based on the testimony of Ken-
neth Halcomb that near the end of his shift on an eve-
ning in September La Dayrl Knight walked up to him
and, without any greeting, told him "that the company
would not negotiate with the Union." Knight continued
that "they would have to go oin strike, and that he had a
list of all the employees involved, that when we went on
strike, the company would hire people to replace us."
This, according to Halcomb, was the entire conversation.
According to Knight, his routine was to tour the plant
early in the shift, and on one occasion he stopped and
talked with Halcomb, with whom he had been friends
for several years. Halcomb asked Knight if the Company
was going to negotiate with the Union. Knight told him
that Respondent would have to negotiate. Halcomb re-
sponded that, if Respondent did not negotiate, the em-
ployees would go on strike and shut the plant down and
there was nothing the Company could do about it.
Knight told him that he did not think the employees
would force the issue by striking and if they did the
Company would hire employees to replace them.
I am constrained to credit Knight's more detailed and
believable version of this incident. Halcomb's version is
not appealing. I find it highly unlikely that Knight would
approach his friend and, without greetings, make the
statement attributed to him. Accordingly, I recommend
that this allegation be dismissed.
At the hearing the General Counsel was granted per-
mission to amend the complaint to allege that on or
about May 14, 1979, Respondent by its supervisors, Joel
Anderson and L. J. Dugan, violated Section 8(a)(l) and
(4) of the Act by threatening its employees with loss of
holiday pay if they participated in the instant hearing on
May 29, 1978. At the hearing I dismissed this allegation
as to L. J. Dugan for failure of proof.
This incident arises out of company policy, not un-
common in industry, that for employees to qualify for
holiday pay they must work the day before and the day
following the holiday, or be excused for good cause. The
hearing herein commenced on May 28, the day following
the Memorial Day holiday, on which the plant did not
operate. According to A. D. Davis, on or about May 14,
he approached Walt Brotherton, production manager,
and, because of rumors he had heard, told Brotherton he
was involved in this hearing and asked if he would re-
ceive holiday pay. Brotherton told him he did not know
but he would check with personnel and find out. A short
time later Davis advised his supervisor, Joel Anderson,
that he was involved in the hearing. Anderson told him.
"You know you may not get your pay, your holiday
pay." Davis told Anderson he thought he was misin-
formed, and that he had already talked with Brotherton.
O()n Friday. Supervisor Jim Foley told Davis, a second-
shift employee. that he would receive his holiday pay if
he reported to work at the conclusion of his business at
the hearing It appears that the first-shift employees who
were subpoenaed for the 1 p.m. hearing were required to
report for work until noon in order to qualify for holiday
pay.
I find nothing unlawful in Anderson's comment to
Davis. At most these discussions indicate that some su-
pervisory personnel were not familiar with the holiday
pay policy nor aware that the Board-issued subpoena
constituted an excuse for holiday pay. Accordingly. this
8 (a)( I1) and (4) allegation is hereby dismissed.
IV. III FFIC I O1 I I1 U NFAI R I ABOR PRAC I I( C S
UPON CON1MMIRC}I
The activities of Respondent set forth above, il con-
nection with its business as set forth 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 ob-
structing commerce and the free flow of commerce.
CoNciUSIoNs or: LAW
1. Jurisdiction by the Board is properly asserted in this
proceeding.
2. By interrogating its employees concerning their
union membership, activities, and desires; threatening its
employees, directly and indirectly, that it would close
the Mena plant if the Union were selected as the employ-
ees' collective-bargaining representative: telling its em-
ployees, directly or indirectly, that selection of the
Union at Mena would inevitably bring strikes and vio-
lence; orally promulgating an overly broad no-solicita-
tion rule which could be interpreted as prohibiting em-
ployees from working for the Union on their breaks and
lunch period; and threatening its employees that it would
be futile to select the Union by telling them it would not
bargain with the Union in good faith, Respondent has
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and Section 2(6)
and (7) of the Act.
1355
DECISIONS OF NATIONAL LABOR REL.AT IONS BOARD
3. Respondent has not otherwise violated the Act.
4. The conduct of Respondent set forth above occur-
ring between August 26 and October 6, 1978, considered
in conjunction with the unfair labor practices occurring
during the union campaign prior to August 26, requires
that the Board-conducted election held on October 6 in
Case 26-RC-5823 be set aside and that a new election be
directed to be held at a time to be determined by the Re-
gional Director for Region 26, after the effects of the
unfair labor practices found herein have been remedied.
THL REMEI)Y
Inasmuch as Respondent has been found guilty of vio-
lations of Section 8(a)(1) of the Act, which conduct in-
terfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed them by Section 7
of the Act, I conclude from the totality of such unlawful
conduct that Respondent should be required to cease and
desist from such and any like or related conduct, and to
take certain affirmative action in effectuation of the poli-
cies of the Act. Such affirmative action of Respondent
shall be that it post the usual informational notice to em-
ployees, attached hereto as an appendix.
[Recommended Order omitted from publication.]
1356