Emerson Electric Co.

National Labor Relations Board - Board Decisions

Jun 17, 1969

176 N.L.R.B. 744 (N.L.R.B. 1969)

744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Emerson Electric Company and United Steelworkers
of America, AFL-CIO. Case 8-CA-4907
June 17, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On October 24, 1968, Trial Examiner George J.
Bott issued his Decision in the above -entitled case,
finding that Respondent was a successor to Pace,
Inc. (hereinafter referred to as Pace) and
recommending that Respondent be required to
remedy Pace's unfair labor practices under Section
8(aX3) of the National Labor Relations Act, as
amended , by reinstating , with backpay from the
date of discharge to the date of the offers of
reinstatement , the four employees whom Pace had
discriminatorily discharged .' He further found that
Respondent did not refuse to bargain with the
Union in violation of Section 8(a)(5) of the Act, and
should not be required to remedy Pace's Section
8(aX5) violation , and in this regard he recommended
that the complaint be dismissed . Thereafter, the
General Counsel, the Charging Party, and
Respondent , respectively, filed exceptions to the
Trial Examiner' s Decision together with supporting
briefs. The General Counsel's and Charging Party's
exceptions were limited to the Trial Examiner's
dismissal of the complaint ' s Section 8(aX5)
allegations and to his failure to recommend a
bargaining order directed to Respondent.
Subsequently , the Charging Party and the General
Counsel requested permission to withdraw their
exceptions . On January 17, 1969, the Board granted
their requests and, in the absence of outstanding
exceptions, adopted pro forma the Trial Examiner's
dismissal of Section 8(aX5) allegations.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed . The Board has considered the Trial
Examiner ' s Decision, Respondent 's exceptions and
brief, and the entire record in this case , and hereby
adopts the findings , conclusions, and
recommendations of the Trial Examiner with the
addition and modification set out below.
As appears more fully from the Trial Examiner's
Decision , this proceeding was instituted to determine
inter a/ia. Respondent's successorship responsibility,
if any, for remedying unfair labor practices
committed by Pace against certain employees of the
business enterprise which Pace then owned and
' See Pan, Inc.. 167 NLRB No. 160.
operated, but which has since been acquired by
Respondent.
The relevant facts are as follows:
In Pace, Inc., supra, decided December 1, 1967,
the Board found that on June 6 , 1966, Pace
discriminatorily discharged four employees in
violation of Section 8(ax3) and (1) of the Act. The
Board's Order directed, inter alia, that Pace offer
immediate and full reinstatement to the four
discriminatees and make them whole for any loss of
pay suffered by reason of the discrimination against
them.
On October 28, 1966, subsequent to the conduct
of the hearing in the Pace proceeding, Respondent
entered into a contract to purchase Pace's facilities
and business as a going concern. Pursuant to that
agreement, Respondent took over the business on
December 1, 1966. It then transferred to its payroll
all the rank-and-file employees who had been on
Pace's payroll immediately before the changeover
and commenced operating the business at the same
location without essential change. There was no
interruption in the production activities as a result
of the changeover.
Respondent admits that it was informed sometime
before the contract of sale was executed that unfair
labor practice proceedings were pending against
Pace. It also admits that certain provisions in that
contract anticipated and were intended to impose on
Respondent an obligation to assume Pace's
liabilities, if any, to the four employees involved as
alleged discriminatees in the then pending unfair
labor practice proceeding. It claims, however, that
the liabilities it thus assumed were limited to Pace's
pecuniary obligations. Respondent more specifically
contends that it neither contemplated nor in fact
assumed any obligation to provide the four alleged
discriminatees with jobs equivalent to those from
which they were discharged, or to make them whole
for the period from the date of the sale to the date
of reinstatement: It has no objection to paying the
employees for any loss of pay they incurred up to
the date of the changeover.
The Trial Examiner found that Respondent's
contention as to the limited intent of its contractual
undertaking is wholly unsupported by the terms of
the contract.' Our examination of the record
persuades us that the Trial Examiner was correct in
that finding. Thus the contract provides that as part
of the consideration to be paid to Pace for the
business, Respondent would assume "all" of Pace's
liabilities other than those specifically excepted.
Pace's contingent liabilities in connection with the
then pending Board proceeding are not among those
specifically excepted. The contract does set a
'Asappeappears from the Trial Examiner 's Decision , Respondent also rested
its contention at least in part, on a Letter of understanding dated March 27,
1%7, some 5 months after the contract of sale and after the hearing in the
Pace case. The Trial Examiner found that this purported clarification of
the parties' intent "was not much more than an intra-office , self serving
declaration," and of no probative value in overcoming the clear terms of
the contract which had been earlier signed . We agree.
176 NLRB No. 98
EMERSON ELECTRIC COMPANY
monetary ceiling on certain types of "excluded"
liabilities . But these are defined as: (1) liabilities
which Pace "incurred" after July 31, 1966; (2) those
"incurred" prior to that date but only if not
disclosed on any schedule or writing delivered to
[Respondent] prior to the date of the sales
agreement; and (3 ) all undisclosed liabilities, if any,
arising out of "breach" by Pace of any "federal,
state, or local law." The liabilities here involved
were incurred at the time the unfair labor practices
were committed, which was prior to July 31, 1966.
And, as the Trial Examiner notes, documents either
appended to the contract or incorporated therein by
reference expressly mention the unfair labor practice
charges filed on behalf of the four discriminatees in
listing the contingent liabilities of which Pace had
informed Respondent . Thus in schedule C of the
agreement reference is made to two items of
"pending or threatened litigation covered in the
1965-1966 Fiscal Report." One of these is then
described in the contract as "the possible obligation
which may be ruled by NLRB on the charges filed
by four employees." The fiscal report, in describing
this charge , states in relevant part : ". . . there are
unfair labor practice charges filed by the United
Steelworkers against Pace , Inc.," with the NLRB
"which could result with [sic] backpay ordered from
June 8, 1966, if United Steelworkers is successful in
the reinstatement of four employees."
Upon the foregoing facts, we find, as did the Trial
Examiner , that the Respondent 's relationship to the
employees of the business enterprise it acquired
from Pace was that of a successor employer who
had knowingly assumed by contract "all" of the
obligations arising from Pace ' s 8(a)(3 ) violations in
discharging the four employees. We therefore concur
in the Trial Examiner's holding that Respondent's
responsibility for remedying the aforesaid unfair
labor practices is governed by the rule which the
Board declared and applied in Liberty Electronics
Corporation, 143 NLRB 605, namely, that a
successor who has contractually agreed to assume
all of its predecessor ' s potential liabilities for 8(a)(3)
violations must bear responsibility for fully
remedying its predecessor ' s unlawful conduct, both
with respect to reinstatement and backpay.
The Trial Examiner supported his holding not
only on the rule of Liberty Electronics, but also on
the broadened principles subsequently declared by
the Board in Perma-Vinyl, 164 NLRB No. 119,
enfd . 397 F.2d 544 (C.A. 5). In the latter case,
decided May 24, 1967, the Board announced that,
without regard to whether there was a contractual
understanding to do so, it would thenceforth hold a
successor employer responsible for remedying its
predecessor's violations of Section 8(aX3) of the Act
if the successor acquired the business with knowlege
that proceedings based on such unfair labor
practices were then pending against its predecessor.
Insofar as the Trial Examiner's Recommended
745
Order directs Respondent to reinstate the four
discriminatees , we agree with him that Perma-Vinyl
commands such action - and this even though it be
assumed arguendo, as Respondent asserts, that
Respondent's contractual assumption of Pace's
contingent and potential liabilities for the 8(a)(3)
violations contemplated only financial liabilities, and
not reinstatement as well. Contrary to Respondent's
contention, our reliance on Perma- Vinyl insofar as it
involves Respondent's legal obligation to reinstate
the four discriminatees, involves no retroactive
application of new policies first declared after
Respondent acquired Pace's business. The direction
for reinstatement is prospective in application and
Respondent has been afforded full opportunity via
this proceeding to be heard on that issue.3 The
question of whether the Trial Examiner was correct
in giving retroactive effect to Perma- Vinyl as an
alternative basis for finding Respondent responsible
for the full backpay of the four employees is one,
however, on which we do not pass. We do not need
to do so in view of the clear proof present here that
Respondent contractually bound itself to assume at
the very least all financial obligations that might
flow from the 8(a)(3) violations. Resort to
Perma- Vinyl would therefore add nothing of
substance in this particular case to the earlier, and
still applicable remedial principle exemplified by the
Liberty Electronics case, which we find controlling
in any event.
We have considered in this connection
Respondent's further argument that the intent of its
contractually assumed financial obligation should be
interpreted by the Board in the light of the Board's
case law and policies as they existed at the time of
sale rather than as later enlarged upon. Respondent
suggests that under then existing law the Board
would not have imposed a reinstatement order on
Pace once Pace had divested itself of the business,
and that in the absence of a reinstatement obligation
the Board would not have extended Pace's liability
beyond the date Pace sold its business. Proceeding
from that premise, Respondent contends that the
measure of liability it assumed should be deemed no
greater, since it had a right to rely on then
applicable law in framing the applicable provisions
of its contract. The difficulty with that contention,
however, is that it is based on a faulty premise. It
ignores the principle declared and applied in
American Auto Felt Company, 158 NLRB 1628, a
case which issued on June 7, 1966, some months
before Respondent executed the sale agreement. In
that case, the Board ordered an employer who had
discriminatorily discharged an employee some time
before it sold its business as a going concern, to pay
'In Perma.Vinyl itself, the Board , although withholding retroactive
application of its newly announced policies with regard to a successor's
liability for backpay , did order the successor in that case to offer
reinstatement to the discriminatees on request . We note that Respondent in
this case concedes that a request for reinstatement has heretofore been
made on behalf of the four employees involved.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the discriminatee backpay from the date of the
discharge until the date she obtained or was offered
substantially equivalent employment elsewhere.' The
board based that decision on reasoning that had the
employee not been unlawfully discharged, she would
have been offered employment by the successor
employer, as were the other employees on the
predecessor's payroll at the date of the changeover,
and that the pay she lost accordingly extended
beyond the date of the sale . See Ibid. pp. 1632 and
1641. As the circumstances under which the
changeover in operations was effected in the instant
case are strikingly similar in all relevant respects to
those in American Auto Felt, the reasoning of that
case is equally applicable here.' Accordingly, we find
no merit in Respondent's apparent claim that it was
misled by the state of the law as it existed at the
time of the sale and that in equity its assumed
obligation for backpay should not be deemed to
extend beyond the date Pace transferred its business
to Respondent.'
In view of all the foregoing considerations, we
conclude, as did the Trial Examiner, that
Respondent is responsible as a successor to Pace,
Inc., for remedying the unfair labor practices
committed by Pace against the four employees of
the business enterprise in the manner set forth in the
Order herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner and
orders that the Respondent, Emerson Electric
Company, Mansfield, Ohio, its officers, agents,
successors, and assigns , shall take the action set
forth in the Trial Examiner's Recommended Order,
as herein modified:
1. Add the following as paragraph (2) and
renumber the following paragraphs accordingly:
'The rule stated in American Auto Felt was subsequently restated and
reaffirmed in Perma-Vinyl, supra
'The fact that several months clasped in the present case between the
discharge dates and the date of sale would not, in our opinion , significantly
effect the degree of probability that the discriminatees would have
voluntarily remained on the payroll in the interim period . We take note in
this connection that , in its brief Respondent represents that it in fact
voluntarily offered the four discriminatees employment on November 18,
1968, in the positions they had held before Pace discharged them , and that
all four had accepted the offer.
'Our conclusion in this respect is not affected by the fact that the
remedial order in the Pace case is silent as to Pace's obligation for
beckpay after the date it sold its business . The hearing in the Pace case
was completed before the date of the sale and the record before the Board
when that case was decided did not disclose Pace's intervening divestiture
of its business.
'As indicated, supra. Respondent has stated in its brief to us that on
November 18, 1968 , it voluntarily offered the four discriminatees
employment at their former or substantially equivalent jobs , and that all
four accepted that offer . If this is iio , the backpay period will of course
terminate as of the date of Respondent 's offer of reinstatement.
"(2) Notify the above-named employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed
Forces."
2. Delete the paragraph beginning
"IT IS FURTHER RECOMMENDED ...""
3. Add the following as the last indented
paragraph of the notice:
WE WILL notify the above-named employees if
presently serving in the Armed Forces of the
United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training
and Service Act, as amended, after discharge
from the Armed Forces.
'As above set forth, the Board , by Order dated January 17, 1969, has
already adopted the Trial Examiner 's recommendation that the 8(a)(5)
allegation in the complaint be dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE J. BOTT, Trial Examiner: Upon a charge of
unfair labor practices filed by the United Steelworkers of
America, AFL-CIO, herein called the Union, on January
26, 1968, against Emerson Electric Company, herein
called Emerson or the Respondent, the General Counsel
of the National Labor Relations Board issued a complaint
and notice of hearing on April 17, 1968, alleging that
Respondent had engaged in unfair labor practices in
violation of Section 8(a)(l) and (5) of the National Labor
Relations Act, as amended, herein called the Act. The
complaint also alleged that Respondent was a successor to
Pace, Inc., an Ohio corporation which has been disolved,
and obligated to remedy the Section 8(a)(1),(3), and (5)
unfair labor practices which the Board in a Decision and
Order issued on October 27, 1967, found that Pace, Inc.,
had committed.' Respondent filed an answer admitting
certain allegations of the complaint but denying the
commission of any unfair labor practices and also
disclaiming any liability for remedying any unfair labor
practices committed by Pace, Inc. The hearing in this
matter took place before me in Mansfield, Ohio on
September 4, and all parties were represented by counsel.
Subsequent to the hearing, General Counsel and
Respondent filed briefs which I have carefully considered.
Upon the entire record' in the case and from my
observation of the witnesses, I make the following:
'Pace ,, Inc., 167 NLRB No. 160.
'Respondent 's motion to correct transcript of testimony is hereby
granted except with respect to the proposed correction of Carto's testimony
at p. 62, I. 2, of the transcript , which is the only correction opposed by
General Counsel The significance of Carto' s answer "Yes," instead of
"No," as suggested by counsel for Respondent, will be discussed in the
body of this Decision in considering the question of the purchaser's
knowledge of the unfair labor practices of the seller.
The transcript is probably garbled on p. 113, 1. 6, 8 and 9 , as General
Counsel states, but the suggested changes are ununportant, and, in view of
the difficulty of reconstructing the exchanges which took place during the
discussion of legal theory , I think the transcript should remain as it is.
The Trial Examiner also makes these changes on his own motion: P. 6,
1. 17, change "intricate " to "intergral"; p. 7, I. 1, "formal" should be
EMERSON ELECTRIC COMPANY 747
FINDINGS OF FACT
1. JURISDICTION OF THE BOARD
Respondent is a Missouri corporation and as part of its
operations it maintains in Mansfield , Ohio, a plant known
as Pace Division of White- Rodgers , where it is engaged in
the manufacture and sale of thermostats for electricial
appliances. Annually, Respondent ships from its
Mansfield, Ohio, plant directly to points outside of Ohio
products valued in excess of $50,000. Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Basic Findings
For several years prior to December 1, 1966, Pace, Inc.
(herein Pace), an Ohio corporation, now dissolved,
operated a plant in Mansfield , Ohio, at which it
manufactured thermostats for electrical appliances.
On July 25 , 1966, the Board issued a complaint of
unfair labor practices in Case 8-CA-4266 alleging that
Pace had violated Section 8(a)(l) and (3) of the Act. The
8(a)(3) allegations were based on the discharge of four
employees during the Union ' s campaign to organize the
employees of Pace at Mansfield.
On August 9, 1966, an election was conducted under
the supervision of the Regional Director for Region 8 of
the National Labor Relations Board among Pace's
production and maintenance employees on a petition filed
by the Union in Case 8-RC-6375. Of the valid votes
counted in said election , 28 votes were cast for and 39
votes were cast against the Union . On August 12, the
Union filed objections to conduct of Pace affecting the
election.
In Case 8-RC-6375, seven of the Union's objections
were overruled by the Regional Director, and five were
referred by him to the Trial Examiner for resolution,
pursuant to a Supplemental Decision and Order of
September 20, 1966.
On September 22, 1966 , a complaint issued in Case
8-CA-4330 alleging that in June 1966, Pace had refused to
recognize and bargain with the Union as bargaining
representative of Pace' s production and maintenance
employees,' and, in July and August, made promises of
pay raises to employees and engaged in interrogation and
other restraints of employees in connection with voting at
the representation election in order to destroy the Union's
majority, in violation of Section 8(a)(l) and (5) of the
Act.
Pursuant to an order consolidating cases 8-CA-4266,
8-CA-4330 and 8-RC-6375, a hearing was held before me
"normal"; page 18, line 9, "Acting" should be "As bearing"; page 25, line
16, "sent" should be "accept"; page 27, line 19, "bring " should be
"identify," and "in" should be deleted ; page 35, lines I and 10, "Mr.
McKnight" should be "The Witness" in both cases; page 55, line 6, delete
"re" before transfer; page 59, line 5, "Mr. Falcone" should be "Trial
Examiner."
'The refusal to bargain allegation of the complaint was based on the
Bernet Foam theory . Bernet Foam Products Co.. Inc . 146 NLRB 1277.
in Mansfield, Ohio, on October 18, 19, 20, 1966, on the
allegations of the complaints and the Union's Objections
to the election.
Willis Carlo was president of Pace until December 1,
1966, and he is now president of the Pace Division of
White-Rodgers, which is a division of Respondent
Emerson. Carlo participated in numerous meetings with
representatives of Respondent which resulted in a sales
agreement signed by the parties on October 28, 1966.
Carlo testified that negotiations for a sale of Pace' s assets
to Respondent were approved by Pace's board of directors
in May 1966, and Respondent was advised at that time
that Pace was willing to discuss the matter. By the middle
of August 1966, a "letter of intent" covering the basic
elements of an agreement whereby Respondent would
acquire Pace's assets was prepared, and this outline was
finally signed by Pace on October 10, 1966.
The letter of intent was the foundation of the sales
agreement, called a "Plan and Agreement of
Reorganization," executed by the Respondent and Pace
on October 28, 1966. Basically, the agreement provided
for the acquisition by Respondent of all of Pace's assets
and an assumption of its liabilities (except as therein
specifically provided) in exchange for shares of
Respondent's stock. As provided by the agreement, the
closing of the transfer of assets from Pace to Respondent
took place on November 30, 1966, and on December 1,
1966, Respondent began operations at the plant where
Pace had formerly operated. Pace's last date of
operations was November 30, 1966, and, as provided by
the sales agreement, it dissolved on December 29, 1966.
Prior to December 1, 1966, Pace manufactured small
thermostats in its plant at Mansfield and employed
approximately 75 production and maintenance employees.
A separate corporation owned and controlled by Carlo
and other officers of Pace owned the land and buildings,
but in accord with the sales agreement, Emerson acquired
a lease to the premises and the manufacturing continues at
the same site. On December 1, 1966, Respondent Emerson
began production with essentially the same employees
employed by Pace the day before, and, in addition to
other lines of thermostats brought in by it, continues to
manufacture the same products manufactured by Pace and
to service and supply the former customers of Pace.
Although Respondent employed practically the same
employees Race had employed just before the sale, there
had been a substantial turnover in Pace's unit employees
between June 17, 1966, when the Union demanded
bargaining and established its majority by union cards,
and November 30, the last day of operations. In addition,
by August 31, 1968, the last payroll before the hearing in
the instant case, Respondent's employment had risen to
approximately 130 production employees.
Respondent hired the office employees employed by
Pace on November 30 when it acquired and began to run
the factory on December 1, 1966. Respondent also
acquired some of Pace's supervisors and higher executive
talent when it bought Pace. Prior to the sale, Willis Carlo
was president of Pace and its chief executive office, A. S.
Irvine was vice president in charge of sales, John Hoffman
was vice president in charge of engineering and D. L.
Reffel was Pace's factory superintendent. These gentlemen
signed employment contracts with Respondent prior to the
sale, and Carlo is now president of the Pace Division of
White-Rodgers, Irvine is vice president in charge of sales,
Hoffman is in engineering and Reffel is factory manager.
In addition. Supervisors Thoman and Ream° had no break
dam seems to have been an accountant or controller.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in service as a result of the sale, although Respondent
employs more line supervisors now than Pace did before
the sale . On the other hand, none of Pace's officers
became officers of Respondent Emerson , and none of
Emerson 's officers were officers of Pace. Similarly, none
of Pace' s board of directors are on Respondent 's board,
and Respondent owned no stock in Pace.
On April 26, 1967, the Trial Examiner for the Board in
Cases 8-CA-4266, 8-CA-4330 and 8-RC-6375 issued his
Decision in which he found that Pace had , ever since June
17, 1966, refused to bargain with the Union in an
appropriate unit in violation of Section 8(a)(5) of the Act,
and had engaged in various acts of interference, restraint,
and coercion in violation of Section 8(aXl) of the Act.
The Examiner also found that Pace had discriminatorily
discharged employees Ellen Kidd , Carol Yirga, Margaret
Clinton, and Rosemary Sheeks on June 6, 1966, in
violation of Section 8(aX3) of the Act. On October 27,
1967, the Board issued its Decision and Order affirming
the Trial Examiner . It was stipulated at the hearing in this
case that Respondent Emerson was not a party to and did
not, prior to December 1, 1967, participate in any of the
proceedings which resulted in the Decision of the Board
regarding Pace. There is also no claim by anyone that
Respondent actively participated in the unfair labor
practices of Pace found by the Board in the above cases.
On December 21, 1966, which was after the hearing in
the above cases but before the Trial Examiner 's Decision,
Emerson wrote the Union and, after advising that
Respondent had purchased Pace, whose employees were
now employees of Emerson, asked if the Union claimed to
represent a majority of the employees in a described
production and maintenance unit.
The Union' s counsel replied to the above letter on
January 6, 1967, stating that "it is our understanding that
Emerson Electric Company, as the successor to Pace,
Inc., has succeeded to all the rights and liabilities of Pace,
Inc. with respect to its relationship with the employees of
the Mansfield plant and United Steelworkers of America .
... The writer noted that those "rights and liabilities"
would soon be defined by the Board in the pending cases
against Pace , and he suggested that Emerson contact its
attorney, F. Rush McKnight, who appeared for
Respondent in this case.
After the Trial Examiner ' s Decision in the case against
Pace, the Union wrote Pace and asked for bargaining.
Subsequently, on May 5, 1967, it wrote Emerson Electric
Company and Pace jointly, requesting bargaining of "the
operating entity in control of the operations at the
Mansfield , Ohio, plant hitherto operated by Pace, Inc."
Emerson answered the Union's May 5 demand on June 5,
1967, in a letter in which it rejected the Union' s request
on a number of grounds.
The Union' s counsel made another request for
collective bargaining of Pace and Emerson by letter on
October 31, 1967, after the Board had issued its Decision
and Order in Pace, and, on November 9, 1967, Emerson
again turned it down in a letter in which it stated that
Emerson took the position that it was not a "successor"
to Pace , and that even if it were , it ought not be required
to remedy the unfair labor practices of Pace on the facts
of this case.
The communications between the Union and Pace and
Emerson noted above apparently related only to the
asserted obligation to bargain with the Union. On July 18,
1967, however, counsel for the Union wrote Emerson
requesting it to "restore . . . to employment" the four
employees the Board had found had been discriminatorily
discharged by Pace . Counsel for Emerson answered this
request in a letter dated August 6, 1967, in which he
stated , among other things , that Respondent would pay
backpay to the discriminatees for the period from their
discharges until Pace ceased operations , because Emerson
assumed this obligation when it purchased Pace, but he
added that Emerson assumed no obligation to reinstate
these individuals or to remedy Pace ' s unfair labor
practices in any other respect.
Respondent Emerson has not recognized or bargained
with the Union and neither it nor Pace has offered the
discriminatees reinstatement . It was also stipulated that at
no time since December 1, 1966, have the four
discriminatees personally applied for or personally sought
employment with Respondent , and have made no
application for reinstatement with Respondent except
through efforts made by the Regional Office of the Board
to have Respondent comply with the Decision and Order
of the Board relating to Pace.
B. Analysis, Additional Findings and Conclusions
1. The successorship issue
The complaint alleges that Respondent independently
violated Section 8(ax5) of the Act by refusing the Union
recognition when it demanded it of Respondent in October
1967, and that "In addition to seeking the usual remedy
for Respondent 's own unfair labor practices ...," General
Counsel seeks an order requiring Respondent , as successor
to Pace, to remedy Pace's violations of Section 8(a)(l),
(3), and (5) of the Act. An essential element in both
theories, however, is successorship , for if Respondent is
not a successor to Pace , its refusal to recognize the Union
without some proof of majority status would not have
been an unfair labor practice.
The successorship doctrine is founded on the principle
that "It is the employing industry that is sought to be
regulated and brought within the corrective and remedial
provisions of the Act in the interest of industrial peace."'
It has long been established that a change in ownership in
an enterprise does not automatically extinguish the rights
of employees or their representatives and absolve the new
owner from any duty to recognize the union which
represented his predecessor' s employees or to comply with
the terms of a labor contract which covered those
employees. To the contrary, the rule as developed by the
Board and courts is that when after a sale or other change
in ownership it can be said that there is nevertheless a
"substantial continuity of identity in the business
enterprise" or "the enterprise remains essentially the
same,"' then the obligation of the prior employer devolves
upon the successor in title and the purchaser in such a
situation is a "successor employer."
In determining whether after a transfer of ownership
the "employing industry" remains substantially the same,
the Board and the courts have considered certain factors,
such as: whether the new employer uses the same or
substantially the same work force performing substantially
the same operations; whether there has been a transfer of
supervision ; whether the same machinery and methods of
production are utilized in manufacturing the same
'N.L.R.B. v. Cohen , d/b/a Kiddie Kover Manufacturing Company, 105
F.2d 179, 183 (C.A. 6).
'John Wiley & Sons , Inc. v. Livingston , 376 U .S. 543 ; Cruse Motors,
Inc., 105 NLRB 242, 247.
EMERSON ELECTRIC COMPANY 749
product ; whether there has been a substantial continuity of
operations ; whether operations continue at the same
location ; whether the new employer had employees prior
to the transfer who are now commingled with the
employees of the old employer ; whether there is a labor
organization representing the employees in the group with
which the predecessors employees are merged ; and other
considerations not particularly significant here .' Although
no one of these considerations is necessarily controlling,
prime considerations are the continuation of the business
without substantial interruption , in such a form as to
make the bargaining unit readily discernible , with some or
all of the former employees employed at their old jobs.
This, in my opinion , is what we have in this case.
The complement of employees that constituted the
bargaining unit on November 30, 1966, when Pace
operated the business appeared on Respondent 's payroll
on December 1, 1966, when it began to run the factory,
and there was, of course , no interruption in operations
because of the change in ownership . Stated differently, the
bargaining unit which the Board found was appropriate
for Pace ' s operations remained the same after Respondent
began production. Although employment rose after the
purchase because of the introduction of added products
and increased sales, the bargaining unit was unchanged.
The principal officers, owners , and managers of the
seller became officers and managers of the division of
Respondent in direct charge of local operations, and
continuation of their tenure without interruption was
arranged by contract as part of the sales agreement. In
addition , at least one line supervisor went to work for
Respondent.
Respondent manufactures essentially the same products
in the same factory that Pace did ; relatively small
thermostats . Pace manufactured thermostats for electric
appliances and Respondent continued Pace's line and
added new lines of its own , but in the same general field.'
Respondent , according to Carto, sells to essentially the
same customers that Pace did.
In support of its contention that it is not a successor to
Pace, Respondent points to certain factors , such as the
relative sizes of Pace and Emerson , financially and in
'Some of the leading cases involving contract obligations of the successor
which arose in private actions are: Wiley v . Livingston, supra
Wackenhut Corp. v. International Union , United Plant Guard Workers,
332 F .2d 954; United Steelworkers v. Reliance Universal . Inc.. 335 F.2d
891 (C.A. 3); Piano & Musical Instrument Workers v . W. W. Kimball
Co.. 379 U.S. 357; McGuire v. Humble Oil & Refining Company, 355
F.2d 352 (C.A. 2) United States Gypsum Company v . United
Steelworkers of America, AFL-CIO, 384 F .2d 38 (C.A. 5). Leading cases
which primarily involved the question of whether a union remained the
exclusive bargaining representative and which arose administratively are:
N.L.R.B. v. Cotten d/b/a/ Kiddie Kover Manufacturing Company, 105
F.2d 179, 183 (C.A. 6); N.L.R. B. v. Albert Armato and Wire & Sheet
Metal Specialty Co., 199 F.2d 800 (C.A. 4); N. L.R.B. v . Hoppes
Manufacturing Company , 170 F.2d 962, 964 (C .A 6); N.L. R.B. v.
Downtown Bakery Corp .. 330 F .2d 921 (C.A. 6); N. L.R.B. v. Auto
Ventshade . Inc., 276 F.2d 303 (C.A. 5k N.L.R.B. v . John Stepp's
Friendly Ford, Inc., 338 F . 2d 833, 835 (C .A. 9x N.L. R.B. v. Lunder Shoe
Corp., d/b/a Bruce Shoe Co.. 211 F .2d 284 (C.A. Ik Overnite
Transportation Co. v. N. L.R.B.. 372 F.2d 765 (C.A.4k Stonewall Cotton
Mills , 80 NLRB 325; Cruse Motors . Inc., 105 NLRB 242; Maintenance.
Incorporated , 148 NLRB 1299; Johnson Ready Mix Co., 142 NLRB 437;
Skaggs Drug Centers . Inc.. d/b/a Payless Drug Stores , 150 NLRB 518;
Chemrock Corp., 151 NLRB 1074; Randolph Rubber Company. Inc., 152
NLRB 496; Valleydale Packers , Inc., 162 NLRB No. 139.
'Respondent's Representative Nusbaum , who participated in preliminary
negotiations to buy Pace, said the products incorporated into Pace's line
"matched" theirs.
regard to the numbers of employees employed, and to
various changes made by Emerson with respect to
purchasing , sales, planning , forecasting , budgeting , record
keeping, labor policy and other controls. Broad labor
policy, for example, is made at a higher level in Emerson
Electric Company, but, of course, it is executed at the
plant level and, as a matter of fact, by the same officers
who made it while Pace was in existence . Pace also uses
Emerson ' s financial sources and resources and, as
indicated , Emerson ' s more sophisticated techniques in the
planning and record keeping field. Also, as suggested
earlier , there has been an increase in sales . Although all of
these are factors which may be considered, they are only
the normal incidents of the takeover by a large company
of a smaller and cannot override or defeat the primary
considerations that have been found.
I conclude on the basis of the facts found that there has
been a substantial continuity of identity in the "employing
industry" which constitutes Respondent a successor
employer within the meaning of the cases and not excused
from recognizing the Union or remedying Pace's unfair
labor practices by any circumstance connected with the
transfer of operations as such.'
2. Respondent ' s own refusal to bargain with the
Union
As set out earlier , the Union advised Respondent as
early as January 1967 that it considered it to be a
successor to Pace, and on May 5 , and October 31, 1967,
the Union requested Respondent to bargain collectively
with it. These requests were refused by Respondent for a
number of reasons, principally because it considered itself
not a successor and because it doubted that the Union
represented a majority of its employees. I have found that
Respondent is a successor to Pace , Inc., and I also find
that the Union 's demand , made in a unit which the Board
had earlier found appropriate for collective bargaining for
Pace ' s employees , was for an identical and appropriate
unit of Respondent ' s employees . There remains then the
question of the Union ' s majority and Respondent's alleged
doubt about its existence.
The Union has never claimed to in fact represent a
majority of Respondent 's employees at the times it made
its demands for recognition. Its claim for statutory
recognition is dependent on its majority established among
Pace's employees on June 17 , 1966, and Respondent's
successor status . The General Counsel 's and the Union's
position is that Pace ' s obligation to bargain devolved upon
Respondent. I find that it did not in the circumstances of
this case.
The Union was not a certified or incumbent
representative of employees of Pace when Respondent
took it over on December 1, 1966, and although it is well
established that certification after an election is not the
only method by which a union may establish itself as a
bargaining representative, at the time of the takeover the
Union had in fact lost an election, and Pace's duty to
bargain, as Respondent could reasonably view it , was only
potential and contingent upon a resolution of the question
of Pace ' s mental state when it refused the Union
recognition. The General Counsel had issued a complaint
at the time in which he sought to require Pace to bargain
with the Union, but this obligation, if any, would not
become more apparent until Pace's unfair labor practices
other than the alleged refusal were established and until
'Cases cited fn. 7, supra.
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the election case, which had been consolidated with the
unfair labor practice case, resulted in a finding that the
election should be set aside. When Respondent assumed
possession and began operating, the hearing on these
issues had just recently been concluded, but it was not
until April 26, 1967, that there was a finding that the
Union was the majority representative of employees on
June 17, 1966, by virture of authorization cards in its
possession, and that the employer had refused to recognize
the Union in bad faith.
The Union established its majority in the case against
Pace by approximately 43 authorization cards in a unit of
approximately 80 persons, but by December 1, 1966, 6
months later, when Respondent became the employer,
approximately 20 of the card signers had left Pace's
employ and had been replaced by others. There was also a
turnover in employment in addition to the 20 card signers
before December 1, which continued after December 1.
Moreover, by August 1968, just before the hearing in this
matter and over 2 years after the Union obtained its
authorization cards and demanded bargaining of Pace,
Respondent employed almost twice as many employees in
the appropriate unit.
In fixing an obligation to bargain on an employer with
a union which has lost an election the Board is fully aware
that authorization cards are not the ideal method of
determining majority status, and so it weighs the possible
burden on the employer and on those employees who may
not have actually designated the union against the fact
that the employer has made a fair election impossible. I
do not think, however, as I read the cases, that the Board
will invoke the so-called Bernel Foam doctrine in a
successorship case merely and automatically because the
purchaser is a successor, but rather will consider other
matters as well. In my opinion, the factors which I have
noted, such as the large turnover in the bargaining unit,
including half the card signers , the substantial increase in
the size of the unit since the refusal to bargain, the
remoteness of the refusal from the purchase and from the
present, the absence of a noncontingent determination of
the predecessor 's obligation before the sale, and lack of
any knowledge on the purchaser's part that the Union in
fact represented a majority at any time before or after the
sale will tip the scales in the successor's direction. I find
and conclude, contrary to the allegations of the complaint,
that Respondent did not refuse to bargain with the Union
in violation of Section 8(a)(5) of the Act when it
questioned its majority status and refused to recognize it."
3. Respondent's responsibility for remedying Pace's
unfair labor practices
In order to effectuate the policies of the Act,
Respondent may still be held responsible, as a successor
to Pace, for remedying Pace's unfair labor practices even
though Respondent committed none of its own."
However, there is no rule that a successor is automatically
obligated to remedy his predecessor's unfair labor
practices, but the remedy will be invoked only when the
circumstances of the case justify it.'I
"See Ramada Inns. Inc. 171 NLRB No. 115; cf. Makela Welding. Inc
and Kemp Welding. Inc. v. N L R B.. 387 F.2d 40 (C.A. 6).
"Perma Vinyl Corporation, Dade Plastics Co. and United States Pipe
and Foundry Company, 164 NLRB No. 119, enfd. sub nom . United States
Pipe and Foundry Company v. N.L.R.B 398 F.2d 544 (C.A. 5), Ramada
Inns. Inc.. 171 NLRB No. 115.
"Ramada Inns , Inc., supra.
"109 NLRB 146
In Perma Vinyl, the Board found that: "U.S. Pipe
acquired Perma Vinyl' s business with knowledge of the
unfair labor practice proceeding against that company.
Upon consummation of the sale and transfer of assets to
it, U.S. Pipe continued to operate the former facilities of
Perma Vinyl without substantial change. The operation
was continued at the same location. Essentially the same
personnel were employed and they worked under the
direction and control of supervisors who had been on
Perma Vinyl's payroll. Sorosky, president of Perma Vinyl,
who had personally participated in that company's
unlawful activity, became plant manager under U.S. Pipe.
In that capacity he made a speech to the employees in
opposition to the Union."
In requiring U.S. Pipe to remedy Perma Vinyl's unfair
labor practices, the Board reversed Symns Grocer Co.,"
and, reevaluating its position in the light of Wiley,"
where the court required a successor company to arbitrate
grievances under its predecessor's contract, returned to its
policy it had established in 1948 in Alexander Milburn
Company" that the successor employer who acquired the
business with knowledge of the existence of the unfair
labor practices proceeding is responsible, jointly and
severally with its predecessor, for remedying the unfair
labor practices.
The unfair labor practices have not been remedied.
Pace is out of business, and the discriminatees have not
been reinstated by it or offered employment by
Respondent and made whole for loss of earnings , although
Respondent has offered to make good their losses up to
the time that Pace ceased business and Respondent began
to operate. The Respondent has of course, as noted above,
refused the Union the recognition which the Board found
in the Pace case that it was entitled to. I have found that
Respondent is a successor to Pace, and although there are
some common elements in Perma Vinyl and the present
case which indicate that the policies of the Act might be
effectuated by requiring Respondent to recognize the
Union which Pace illegally refused to recognize and to
reinstate the discriminatees with full backpay as well,
there are differences in the cases which lead me to
conclude that Respondent should be required only to
remedy the unfair labor practices under Section 8(a)(3) of
the Act and not be required to recognize the Union as the
statutory representative of its employees under Section
In Perma Vinyl the purchaser knew of the pendency of
the unfair labor practice proceeding against the seller
when it acquired the business, and contrary to
Respondent's contention, I find that Respondent here too
knew what Pace's potential liability was when it took
possession on December 1, 1966. Respondent argues that
it knew only that there were charges of discrimination
under Section 8(a)(3) of the Act when it bought the
business . It must concede this much because the sales
agreement refers to these charges and this contingent
liability, although it does not refer to the complaint of
refusal to bargain and the hearing on it which took place
shortly before the sales agreement was executed. Carto,
former president of Pace, Inc., who became president of
the Pace Division of the White-Rodgers Division of
Respondent, testified that to his knowledge Respondent
completed the purchase of Pace without checking or
knowing the breath of the proceeding against Pace."
"John Wiley & Sons, Inc. v. Livingston. et al , 376 U.S. 543, 549.
"The Alexander Milburn Company, 78 NLRB 747.
"On p. 62, I. 2, of the transcript appears Carto' s answer "Yes" to the
EMERSON ELECTRIC COMPANY 751
Contrary to Carto' s suggestions that Respondent may
have been ignorant of the possibility that Pace might be
ordered to bargain with the Union, I find that its asserted
ignorance is impossible to accept in the circumstances.
Carto was president of Pace and fully aware of the
implications of the General Counsel's complaint and the
hearing held on it in October 1966. He attempted 20 or
more meetings with representatives of Respondent at
which the details of the sales agreement were arranged,
and Respondent was given complete access to all of Pace,
Inc.'s record after the "letter of intent" in early October,
or in any case no later than October 28, 1966, when the
agreement was executed. Clearly, Respondent acquired
Pace in circumstances sufficient to put it on notice of the
pending Section 8(a)(1),(3), and (5) charges against Pace.
Absent a denial or a more adequate explanation from a
representative of Emerson about their knowledge of the
refusal to bargain charge, the complaint and hearing
against Pace, and about why they chose to ignore Pace's
or its attorney's labor relations files, which admittedly
contained documents which would have put it on notice, I
find that they actually knew of the pendency of the
complete unfair labor practice proceeding against Pace."
Respondent then was a successor with knowledge when
it acquired Pace, and Carto and other officers of Pace,
who knew of and were responsible for Pace's unfair labor
practices, became officers and managers of Respondent's
Pace Division. Despite these important resemblances to
the facts in Perma Vinyl, however, for essentially the
same reasons which led me to the determination that
Respondent did not violate Section 8(a)(5) of the Act
when it questioned the Union's majority and refused to
bargain with it on demand, I conclude that an order to
Respondent to cure Pace's refusal to bargain by
recognizing the Union as majority representative of its
present complement of employees would not be
appropriate.
Regardless of Respondent's knowledge of the extent of
the proceeding against Pace when it purchased that
company, Pace ' s obligation to bargain , as stated earlier,
was potential and contingent, depending on the resolution
of such matters as Pace's good faith, the extent of its
unfair labor practices, its interference with the election,
and the Union's proof of majority by authorization cards.
Although Pace's liability to pay backpay and reinstate
employees in the discrimination portion of the proceeding
was also dependent on a subsequent finding that it had
improperly discharged certain employees, Respondent
could protect itself against such liability by provisions in
the sales agreement, but there was no practical way that it
question of whether a representative of Respondent asked to see Pace,
Inc.'s "labor relations file," which contained all formal papers , such as
charges and complaints , prior to the closing of the sale. Contrary to
'Respondent's position in its motion to correct the transcript, this is the
way I recall Carto answering , but I agree that the answer is inconsistent
with most of his previous testimony . In my view, he was confused and
intended to answer "No." However , as set out in the body of this Decision,
I do not believe that Respondent was ignorant of the extent of General
Counsel's case against Pace.
"William Nusbaum , who participated in some of the negotiations as a
Emerson Electric representative, did not participate in all of them, and he
testified that his "role" in the negotiations tapered off in the latter part of
August . He also said that labor relations was completely out of his field. I
do not, therefore, consider his testimony that he did not remember any
reference to "pending unfair labor practice charges" by Pace
representatives during the negotiations to be an adequate denial by
Respondent that there was none and that it had no knowledge of the scope
of the unfair labor practice proceeding against Pace.
could protect itself against the refusal to bargain charge
or against a charge of unfair labor practices against itself
if it recognized the Union and the Board subsequently
dismissed that portion of the case against Pace.
I have also found that the Board did not issue its final
order against Pace until October 27, 1967. As found
above, approximately half of the card signers had left
Pace's employ between the Union's demand for
bargaining in June 1966 and the transfer of ownership in
December 1966, and there had also occurred some other
turnover in employment. Moreover, Respondent has
employed additional personnel in the unit since it acquired
Pace.
In addition to the uncertainty and remoteness of Pace's
bargaining obligation and the existence of employee
turnover, Respondent's own officers had no connection
with Pace and committed no unfair labor practices, and so
there appears no good reason that a fair election cannot
be had among Respondent's present employees to decide
whether they presently wish to be represented by the
Union. On the basis of these factors, and "balancing the
equities," I will not recommend that Respondent be
required to bargain with the Union.'8
There are, however, no counterbalancing equities which
should excuse Respondent from remedying the effects of
Pace's discrimination against four employees, and I shall
recommend that Respondent be required to offer Ellen
Kidd, Carol Yirga, Margaret Clinton, and Rosemary
Sheeks immediate and full reinstatement to their former
or to substantially equivalent positions without prejudice
to seniority and other rights and privileges, and make
them whole for any loss of earnings they may have
suffered as a result of the discrimination against them by
payment to them of a sum of money equal to that they
would have earned as wages from the dates they were
discharged and discriminated against by Pace to the dates
of offers of reinstatement to them by Respondent less
interim earnings, and in a manner consistent with Board
policy set out in F. W. Woolworth Company, 90 NLRB
289. Interest on backpay shall be computed in the manner
set forth in Isis Plumbing & Heating Co., 138 NLRB
716.
Although at the opening of the hearing General
Counsel, but not the charging Party, stated that he was
seeking backpay from Respondent only from the date of
the Board's Decision and Order in Perma Vinyl to the
dates of the offers of reinstatement, because the Board in
that case indicated that the principles announced were
those that would guide it in "future cases," General
Counsel now takes the position in his brief that he was in
error in making this concession and that backpay should
run as I have recommended. I find no prejudice to
Respondent by this change in position. First, it involves
not a factual but a legal issue to be resolved by the
application of Board policy found in Board's decisions,
and second, the Union, one of the parties to the
proceeding, did not concur in General Counsel's position.
In support of his position that the discriminatees should
be reinstated by •Respondent with full backpay from the
date of their discharges General Counsel relies principally
on Perma Vinyl and Liberty Electronics Corp." In my
"Ramada Inns. Inc, supra See Perma Vinyl Corporation , supra. Perma
Vinyl did not involve the question of the purchaser 's obligation to remedy
the seller's refusal to bargain . However , Alexander Milburn , supra, to
which the Board returned in Perma Vinyl, did, but in that case the union
had been certified by the Board , recognized by the employer, and a
contract executed before the sale.
"143 NLRB 605.
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opinion, these cases command the requested remedy. In
Perma Vinyl the Board overruled Symns Grocer Co.30
which held that a bona fide purchaser with knowledge of
unfair labor practices of its predecessor is not responsible
for remedying the unfair labor practices. But even while
the Symns doctrine was the Board policy the Board also
continued in certain situations to require the purchaser to
remedy the seller's unfair labor practices even if it did not
participate in them. In Liberty Electronics, the Board held
the successor liable for its predecessor's 8(a)(3) violations
because the purchaser had contractually agreed to assume
the predecessor' s liabilities arising from its violation of the
Act. In this case , Respondent clearly agreed to assume
Pace's liabilities except as specifically provided in the
agreement of the parties. This appears from the preamble
of the October 28, 1966, sales agreement and paragraph
one thereof. Moreover, Schedule C of the agreement
specifically refers to the "possible obligation" which may
be decided "by the NLRB on the charges filed by four
employees." Finally, Pace's 1965-66 Fiscal Report, which
was in Emerson's possession prior to the sale, stated, at
page 12, that the discrimination charges "could result with
[sic] backpay ordered from June 8, 1966, if United
Steelworkers is successful in the reinstatement of four
employees." Respondent then, with knowledge of possible
reinstatement and backpay, assumed Pace's liability
without express limitation when it acquired Pace.
Respondent makes various arguments, which I reject,
to support its contention that it should not be required to
reinstate the discriminatees or pay them more than the
wages they lost from the dates of discrimination against
them until Pace went out of business . First of all, I
disagree with its argument that it was not intended by the
parties to sales agreement that Respondent should be
liable for any of Pace's unfair labor practices beyond a
monetary obligation up to the time Pace went out of
business . I do not think that Carto's March 24, 1967,
written acknowledgement of that asserted intention,
written in order to "clarify and confirm the intentions of
the parties" in their earlier agreement can overcome the
clear terms of the earlier agreement . It also should be
noted that when the "clarification" of intent was made
Carlo was then employed by Respondent, and in effect the
"clarification" was not much more than an intraoffice,
self-serving declaration . In any case , nothing in the sales
agreement as such could excuse Respondent from offering
reinstatement to the four employees, for the rule in Perma
Vinyl applies regardless of an assumption of liabilities. I
find nothing in the sales agreement to relieve Respondent
from reinstating the employees and paying them full
backpay.
Respondent's other contentions in support of its
position that it need not reinstate the employees and pay
them full backpay have been decided against it by the
Board in other cases. Its argument that it cannot be
bound by the Board's Order in the Pace case because of
the procedural requirements of Rule 65(d) of the Federal
Rules of Civil Procedure was considered in Liberty
Electronics, supra," and found to be without merit
because the Board was not predicating a decision against
the successor on the ground that it had violated the Act,
and because the alleged successor had been given notice of
and fully participated in the proceedings relating to the
issue of its successorship. Here, of course, Respondent
Emerson is not being charged with an unfair labor
"109 NLRB 346.
practice in not reinstating the employees and making them
whole, and it fully participated in this proceeding
involving its status as a successor.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Company is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization as defined in
Section 2(5) of the Act.
3. Respondent did not refuse to bargain with the Union
in violation of Section 8(aX5) of the Act.
4. Respondent is a successor employer to Pace, and
responsible for remedying Pace's unfair labor practices
only to the extent found and recommended herein.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record herein, it is recommended
that Respondent, its agents, successors, and assigns, shall:
(1) Offer to Ellen Kidd, Carol Yirga, Margaret Clinton,
and Rosemary Sheeks immediate reinstatement to their
former or substantially equivalent positions and make
them whole in the manner set forth in this Decision.
(2) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary for determining the amount of backpay
due under the terms of this Decision.
(3) Post at its Mansfield, Ohio, plant, copies of the
attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 8, after being duly signed by Respondent or its
representatives, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(4) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps
Respondent has taken to comply herewith."
IT IS FURTHER RECOMMENDED that the allegations of the
complaint that Respondent refused to bargain with the
Union in violation of Section 8(a)(5) be dismissed.
11143 NLRB 605; Sinko Manufacturing and Tool Company. 154 NLRB
1474; Perma Vinyl Corporation, supra.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director, for
Region 8, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
EMERSON ELECTRIC COMPANY
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL offer to Ellen Kidd , Carol Yirga , Margaret
Clinton , and Rosemary Sheeks full reinstatement to
their former or substantially equivalent positions and
make them whole for any loss of pay suffered as a
result of their discharges by Pace , Inc., in June 1966.
Dated By
EMERSON ELECTRIC
COMPANY
(Employer)
753
(Representative ) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board ' s Regional Office, 1695 Federal
Office Building , 1240 East Ninth Street , Cleveland, Ohio
44199 , Telephone 216-522-3715.