Fasco Industries, Inc.

National Labor Relations Board - Board Decisions

Nov 1, 1968

173 N.L.R.B. 522 (N.L.R.B. 1968)

522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fasco Industries , Inc. and International Brotherhood
of Electrical Workers, Local Union 453, AFL-
CIO. Cases 17-CA-3467 and 17-RC-5611
November 1, 1968
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On June 28, 1968, Trial Examiner Benjamin B.
Lipton issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Exam-
iner also found that the Respondent had not engaged
in certain other unfair labor practices alleged in the
complaint and recommended that such allegations be
dismissed. He further found that certain conduct by
the Respondent interfered with and affected the
results of the election in Case 17-RC-5611 and
recommended that the election be set aside and that a
new one be directed. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as herein modified.
1. The Trial Examiner found, and we agree, that
the Respondent violated Section 8(a)(1) of the Act
by promulgating, maintaining, and discriminatorily
enforcing its rule which tends to inhibit participation
in union solicitation during nonwork time;' by
coercively interrogating employees about their union
activities and sympathies; by offering employees
benefits to induce them to withdraw their support
from the Union and by engaging in unlawful surveil-
lance of a union meeting. We also agree with the Trial
Examiner's finding that the Respondent violated
Section 8(a)(3) of the Act by denying employee
Heatherly a wage increase for discriminatory reasons.
2. We further agree with the Trial Examiner's
finding that certain of the above unfair labor prac-
tices, occurring during the critical period before the
election held on December 15, 1967,2 constituted
unlawful interference with the election. On this basis,
we adopt his recommendation that the first election
be set aside and, that a second election be directed.
Unlike the Trial Examiner, however, we do not find
that the Respondent's letter regarding union dues
distributed to employees on the date of the election
constituted a misrepresentation furnishing additional
_grounds for invalidating the first election.
In this latter connection, the facts show that the
election was held on a normal payday. A few hours
before the election, the Respondent, despite its
awareness that employees had been informed by the
Union that their total dues as union members would
be $4.72 per month, distributed two checks to its
employees: one in the amount of $12.80 with the
words "UNION DUES DEDUCTION" printed on the
stub, and another one reflecting net pay, minus the
$12.80. Attached to each check was a letter cap-
tioned "PAYROLL DEDUCTION" which undertook
to state the various amounts in dues paid to the
Union by employees of other companies in the area
ranging from $6.78 to $21.28. The letter stated that
the amount in the separate check ($12.80) represented
the amount of dues paid by employees of Dameron
Electric Company, another area plant. The last two
paragraphs of the letter state:
The IBEW has said it would require you to pay
dues of $4.72 per month if it were to win the
election on December 15, and if you are required
to join the union.
As you can see, IBEW dues and assessments
apparently vary from place to place, and there is
no way of telling at this point just what the IBEW
dues structure would be. It might be $4.72, $6.78,
$12.80 or $14.17-who knows? Or, it might start
out at $4.72 and wind up at $14.17-who knows?
Based upon the foregoing, the Trial Examiner
concluded that the Respondent interfered with the
election insofar as the Respondent's letter included a
substantial departure from the truth by misrepresent-
ing the amount of union dues. In doing so, the Trial
Examiner reasoned that the letter was not merely
conjecture, but that it was written in a fashion
calculated to inform employees that the Union was
1 We agree with the Trial Examiner that the Respondent's no-
solicitation rule would tend to cause employees to refrain from
exercising their rights to engage in protected union activity insofar as its
terms do not define the area of permissible union solicitation in a
manner that would be clear and understandable to the employees.
Therefore , the rule as written is presumptively unlawful , and in the
absence of evidence that the Respondent, by other means, undertook to
apprise employees of the specific scope of the rule (cf Aerodex, Inc,
149 NLRB 192 , Ferguson -Lander Box Co, 151 NLRB 1615, Kaufman's
of Kentucky, 137 NLRB 151), we adopt the Trial Examiner 's finding
that it was promulgated , maintained , and enforced in violation of
Section 8(a)(1)
2 All dates refer to 1967 unless otherwise indicated.
173 NLRB No. 85
FASCO INDUSTRIES, INC. 523
deceiving them in the amount of dues it would levy.
We disagree. In our opinion, the message embodied in
the letter was expressed in terms that employees
would clearly evaluate as argumentation. It advises as
to- the vaned amounts of dues imposed by the Union
upon its members at other plants in the area, and
then, after acknowledging the Union's statement that
dues at the instant plant would be $4.72, goes on the
stress the uncertainty that the Union would hold the
dues to that figure. Thus, the letter fairly construed
merely argues that the Union could raise the dues
amount to the higher levels prevailing at other plants
in the area, and hence fails to exceed the scope of
legitimate campaign propaganda.' Accordingly, we
overrule the objection based upon the letter and do
not rely upon it in adopting the Trial Examiner's
recommendation that the election be set aside.'
independent violations of Section 8(a)(1) and (3) of the Act I In
Case 17-RC-5611, pursuant to a petition for certification
filed on November 15, 1967,2 a Board election was conducted
on December 15,3 following which timely objections were
filed by the Union On the basis that the objections to the
election raised substantial and material issues which were also
embraced in the complaint, the Regional Director on March 5,
1968, issued an order consolidating both cases for the purpose
of hearing 4
On April 9 and 10, 1968, a hearing in the consolidated
proceeding was held before me in Ozark, Missouri. All parties
participated and were afforded full opportunity to present
relevant evidence and to argue orally on the record 5 Compre-
hensive briefs received from each of the parties have been
carefully considered.
Upon the entire record in the cases,6 and from my
observation of the demeanor of the witnesses on the stand, I
make the following:
ORDER
Pursuant to Section 10(c) of the National Labor
'Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner, and hereby orders
that the Respondent, Fasco Industries, Inc., Ozark,
Missouri, it officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order.
IT IS FURTHER ORDERED that the election held on
December 15, 1967, among the Respondent's em-
ployees, be, and it hereby is, set aside.
[Direction of Second Elections omitted from pub-
lication. ]
3 See, e g, Caressa, Inc., 158 NLRB 1745, York Furniture Corp,
170 NLRB No 169
4 As the Trial Examiner made no finding as to whether the check
splitting device constituted independent grounds for setting aside the
election, and as the Respondent ' s unlawful interference with the
election is amply established by other conduct found herein , we find it
unnecessary to pass upon that issue
5 An election eligibility list, containing the names and addresses of
all the eligible voters, must be filed by the Employer with the Regional
Director for Region 17 within 7 days after the date of issuance of the
Notice of Second Election by the Regional Director The Regional
Director shall make the list available to all parties to the election No
extension of time to file this list shall be granted by the Regional
Director except in extraordinary circumstances . Failure to comply with
this requirement shall be grounds for setting aside the election whenever
proper objections are filed Excelsior Underwear Inc., 156 NLRB 1236.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN B. LIPTON, Trial Examiner. In Case 17-
CA-3467, a complaint was issued by the General Counsel on
March 5, 1968, alleging that Respondent comrrutted certain
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Fasco Industries, Inc., a New York corporation, is engaged
in the manufacture of electrical motors at a plant in Ozark,
Missouri, the sole facility involved herein. As admitted, inter
aka, Respondent annually has a direct outflow in interstate
commerce from the Ozark plant of products valued in excess
of $50,000. Respondent concedes, and I find, that it is
engaged in commerce within the meaning of the Act.
II THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Local
Union 453, AFL-CIO, herein principally called the Union, is a
labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES AND
CONDUCT AFFECTING ELECTION RESULTS
A. Background of Organizational Campaign
On August 8, the Union inaugurated its drive by hand-
billing the Ozark plant Thereafter, various employees were
sought to be enlisted in the campaign by home visitations and
other contacts. Beginning November 7 or 8, some 18 or 20
union meetings were held in the town of Ozark. As earlier
noted, the Union's representation petition was filed on
November 15, and the election took place on December 15.
Among the more active employees in the campaign, e.g.,
1 A charge and amended charge were filed by the Union, respec-
tively on January 26 and 31, 1968
2 All dates, unless otherwise specified , are in 1967.
3 The election, among 376 eligible employees in a production and
utility unit , held under the terms of a Stipulation for Certification Upon
Consent Election, resulted in a vote of 207 to 116 adverse to the Union.
4 It is clear that the complaint and objections involve many issues of
the same alleged conduct on the part of Respondent
5 At the conclusion of General Counsel's case , an unopposed motion
was granted to dismiss certain portions of the complaint.
6 Request to correct the transcript in minor respects appearing in
the addendum to General Counsel's brief, without objection, is granted.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assisting in making home calls, handbilling, distributing litera-
ture and soliciting union authorization cards, were Freda
Bowling, Mary Lou Johnson, Patricia R. Heatherly and Jim
Cochran,7-each of whom is involved in particular issues
discussed infra From August 98 through December 14, various
letters and speeches were communicated by Respondent to the
employees reflecting a countercampaign in strong opposition
to the Union These communications are in themselves not
alleged as violations but are relied upon to establish union
animus of Respondent and to shed light as background with
respect to certain issues in the complaint and objections.
B. The No-Solicitation Rule
On or about August 11, Respondent disseminated to the
employees a revised edition of a booklet entitled "You and
Fasco," in which, inter aria, is contained the rule, set forth
below 9 It is alleged that the rule on its face and various
incidents in its application are in violation
SOLICITATION
All companies are targets of various forms of solicitation. In
order to spare our employees the annoyance and distur-
bance of various forms of solicitation we feel that during
working time all solicitation should be curtailed unless it
has been properly authorized by departmental supervisor
and Personnel Department. This involves selling of tickets,
taking of orders, soliciting subscriptions, distribution of
literature, membership in any organization, or any other
type of materials or verbal contacts intended to gain the
interest of 1 ASCO employees during working time. On
nonworking time, i e., before work, after work, break time
and lunch time, the solicitation of employees described
above will not be permitted unless properly authorized,
except as permitted by Federal and State statutes and
applicable court decisions thereunder, and then only if it
does not interfere with the production of other employees
or create safety or disciplinary problems [Emphasis
added ]
On all facets of the issues presented, there is abundant
authority in Board and court decisions definitively explicating
the principles established. Thus, in brief, it is settled that broad
company rules which prohibit union solicitation during non-
working time are unlawful, unless it is affirmatively shown that
"special circumstances" exist which make the prohibitory rule
necessary to maintain production or discipline.' 0 While the
Peyton Packing principles s that "working time is for work"
has been consistently recognized in balancing the employer's
interest against the employees' statutory right to engage in
organizational activity, the presumptive validity of a restriction
against soliciting on working time may be rebutted by evidence
that the rule was adopted for a discriminatory purpose. 12
Fundamentally, whether the rule relates to working or
nonworking time, its disparate or discriminatory application
against union solicitation is proscribed in the law And
generally it is impermissible, absent special circumstances,
supra, to attach conditions and qualifications to a non-
solicitation rule on nonworking time, e.g., a requirement that
the employer's permission be obtained for employees to
engage in such protected activity. An employer cannot
predicate upon its own authorization the employees' exercise
of the right under Section 7 to self-organization.' 3
1. The rule per se
The portion of the rule relating to nonworking time, quoted
above in emphasis, is in my opinion unlawful on its face As
framed, it is fatally ambiguous and confusing. Employees
cannot be expected to construe these qualifying clauses (i e.,
all language after the words "not be permitted") and reasonab-
ly predict, subject to severe penalty, the propriety or impro-
priety of nonworkingtime union solicitation, or even mere
talk Respondent's rule would therefore clearly tend to inhibit
these employees from using their statutory organizational
rights.' 4 More particularly, (1) the phrase "unless properly
authorized" is unduly restrictive, supra, (2) first posed in
prohibitory terms, the rule is then made defeasible in part so
far as it may be limited by all existing State and Federal
statutes and decisions-a condition entirely too vague and
technical for employees to comprehend, (3) Respondent
cannot impose the burden upon employees to determine
whether their activity on nonworking time would create
production, safety or disciplinary problems. The precedents
are numerous that it is incumbent upon the employer to
demonstrate the prior existence of special circumstances which
necessitate such a broad rule in order to maintain production
or discipline, mere assertions or speculations as to future
possibilities are insufficient.' 5
Accordingly, it is found that, by the promulgation and
maintenance of the rule restricting solicitation on nonworking
time, Respondent violated Section 8(a)(1), and also engaged in
interference with the election sufficient to warrant that it be
set aside. Further substantial evidence, infra, that the rule was
implemented in a discriminatory manner strongly serves to
reinforce this initial holding.
2. Discriminatory applications
On November 10, Jim Cochran was summoned to the office
of Quality Control Manager Morris D. Castleberry, 16 in the
presence of a subordinate foreman, Max Stewart. Castleberry
7 Union Agent Ray Edwards also named as particularly active
employees Wayne Bowling, Shirley Estes , Ethel Smith, Bob and Sue
DeWitt and Sharon Rodgers
8 A document dated August 10 is captioned as a copy of a speech
delivered by Plant Manager Peter E Weis to the employees on August 9.
The speech refers to and was plainly prompted by the appearance of the
Union "at the gates " on August 8.
9 Stipulation of the parties No evidence was adduced to show the
language of a preexisting rule, if any It would therefore appear from
the stipulation that the rule as set forth above was first promulgated on
or about August 11
10 Walton Mfg Co., 126 NLRB 697, enfd. 289 F 2d 177 (C.A. 5),
Stoddard-Quirk Mfg Co, 138 NLRB 615 (lead cases).
11 NL.R.B. v Peyton Packing Company, Inc, 142 F.2d 1009 (C A
5), cert denied 322 U S 730.
12 E g., Pace, Inc, 167 NLRB No 160 , The Wm. H Block
Company, 150 NLRB 341
13 E g , Idaho Potato Processors , 137 NLRB 910, enfd 322 F 2d
573 (C A. 9), Phillips Mfg. Co., 155 NLRB 512;J. R Simplot Co., 137
NLRB 1552.
14 E g , Marlene Industries Corp., 166 NLRB No. 58, Saco-Lowell
Shops, 169 NLRB No. 151, Wigwam Mills, Inc, 162 NLRB No 108.
15 E g. Republic Aluminum Co. v N.L R B., 374 F 2d 183 (C.A 5),
N.L R B v United Aircraft Corp., 324 F.2d 128 (C.A. 2), cert denied
316 U.S. 951
16 Under his supervision were some 30-40 employees
FASCO INDUSTRIES, INC.
verbally read the entire no-solicitation rule from the booklet,
"Falco and You," and asked Cochran if he knew what it
meant The answer was affirmative. Castleberry then told him
he had been harassing employees concerning the Union and it
was necessary to give him a warning. He handed Cochran a
formal warning slip, dated November 10, which states-"Nature
of Warning Violations of Solicitation Rule 11/8/67 Employee
Admits Knowledge of Rule & Admits Guilt of Violation Next
Action: Dismissal." Asked to sign, Cochran did." Without
contradiction, Cochran testified that in fact he had approached
only two employees to sign union cards, one at a restaurant in
Ozark and the other during a morning break, and that he had
not talked union on company time. When given the written
warning, he was not told whom he was supposed to have
solicited, whether it was allegedly done on working time, or
any of the specific circumstances of the information against
him.
Personnel Manager Jane Shyrock testified that an employee,
Sue Hall,18 reported directly to her that she was "being
annoyed by union talk" from Cochran and was having
difficulty getting her work done. Shyrock told Castleberry
only that she had a complaint that Cochran was "soliciting on
company time" and she felt Cochran should have a written
warning if it was agreeable with Castleberry. She declined to
tell Castleberry the identity of the complainant because "this
is a matter of judgment "' 9
On November 9, Heatherly was given a written warning by
Castleberry, witnessed by Stewart, in a manner similar to that
described as to Cochran. The warning states that she solicited
fellow employees during working hours, and that the next
action would be dismissal. Castleberry told her he had a
complaint she was bothering people during working hours (but
revealed none of the details) and that he was giving her a
written warning. She asked who had complained, and he
replied he would rather not say. She answered that "everybody
was talking about the Union," that she was approached by
people on the subject, and that she talked to three of the girls
with whom she worked just to find out how they felt about
the Union or Fasco. But she did not say she had solicited on
company time. 2 °
Heatherly related that, on the day before she received the
warning, she was approached by her working leader, Barbara
Cronin, who was against the Union, and engaged in a
conversation regarding the Union which lasted 15 to 20
minutes on working time.
Castleberry gave this version of his conversation with
Heatherly: "You have been found guilty of violation of this
rule and for this reason you will receive a written warning. Do
you admit violation of the rule? She said, 'Yes., 112 He
testified he was not able to get more specific with Heatherly,
as he did not know the facts. He had been called to personnel
by Shyrock and given the information that employees in
Heatherly's work area were complaining of being harassed
regarding the Union. Shyrock did not disclose the circum-
17 Foreman Stewart testified that Castleberry read the rule to
Cochran and told him "at that time he had violated this rule and we
were giving him the written warning and asked him if he was in
agreement he had done this, and he said yes ." Castleberry's version was
that Cochran said he knew the rule and knew "what you are talking
about "
18 Although available, Sue Hall was not called to testify.
19 It is noted that Cochran 's warning slip indicates that his alleged
offense occurred on November 8, and that he was issued the warning on
525
stances and he could not recall whether he inquired as to who
the complainants were.
Shyrock testified that she received the information on
Heatherly from Foreman Merle Coffer. She made an "indepen-
dent check" of this information-by speaking to Barbara
Cronin 22 Shyrock did not attempt to talk with the employees
who complained, nor with Heatherly. She told Castleberry that
the information seemed to be correct, that Heatherly was
soliciting on company time, and she mentioned a written
warning. Castleberry replied that he also had reports and, with
Shyrock in agreement, he indicated that there was "no
alternative" but to give Heatherly a written warning, with
dismissal as the next action.
Respondent's effort at the hearing to establish more direct
evidence against Heatherly consisted solely of the testimony of
Ula Holmes, an admitted opponent of the Union. It is
unnecessary to describe Holmes' testimony as it is entirely
innocuous.
On October 26, Freda Bowling was handed a written
warning by her foreman, Glenn Jackson, in the presence of
Shy rock. It reads- "Fellow employees complaining of being
solicited during working hours. Next Action' disciplinary."
Responding to her specific challenges, Jackson indicated that
he did not see her pass union cards or hear her talking to
anyone, that he had nobody to confront her with, and had no
proof of this charge. He gave her no details, but simply
remarked that he had to give her the warning because there
were so many complaints. Bowling freely told him that she had
passed out cards, but not on company time. Her final remarks
were that she would find out who turned her in "for doing it
on worktime" and "beat the . . . hell out of them."2 3 Jackson
nor Shyrock Testified on the subject of Bowling's written
warning.
Wilda Tatum testified that at the beginning of the union
campaign, about September, Bowling asked her on company
time to sign a union card. Tatum informed her working leader,
Anna Mae Lewis, of the conversation. Respecting this evi-
dence, Respondent did not show that such alleged solicitation
was brought within its knowledge at the time, or that it was a
basis for the written warning issued to Bowling much later, on
October 26.
Bowling testified that she started active campaigning for the
Union about October 20, that all her solicitations were
conducted on nonworking time, but that on occasion during
worktime when she was approached by employees concerning
the Union, she answered their questions. As appears in the
evidence, infra, she was regarded by Jackson as the principal
proponent of the Union among the employees, and was
frequently engaged by him in conversation, for the most part
coercive in nature, in attempts to influence her defection from
the Union.
When Cochran and Heatherly were called to Castleberry's
office, the decision had already been made to issue the written
warning, with the penalty of dismissal noted as the next
November 10 As to Heatherly's case, discussed below, Castleberry
testified that he got the information from personnel the same day the
warning was issued on November 9.
20 Credible testimony of Heatherly.
21 Stewart gave similar testimony.
22 Coffer, who testified earlier, was not questioned by Respondent
on this issue . Cronin was not called at all
2 3 Bowling is relatively a small woman
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action. Similarly, Jackson and Shyrock were quite decided on
the warning to Bowling, with "discipline" the next action-
despite the latter's strenuous disagreement in the interview.
Respondent made no effort in advance to question these
accused employees, and conducted no semblance of an
investigation. It had no evidence that Cochran or Heatherly
actually solicited on company time, nor as to Bowling, that it
knew or relied upon the much earlier alleged solicitation,
asserted by Tatum, as ground for the warning. In the
circumstances described, Respondent could not have had
reasonable basis to believe that any of the three employees
engaged in such solicitations in violation of its rule.24 Indeed,
these employees were known as active participants in the
union campaign, vigorously opposed by Respondent, and
therein lies the inferrable reason for its readiness to issue these
warnings.
As shown, the rule promulgated by Respondent on or about
August I1 is artfully drawn with ambiguity in major respects,
and in effect unlawfully restricts employees' solicitation rights.
Cochran testified he intended nor made an admission to
Castleberry that he had solicited on company time. Respon-
dent cannot justify its action as to him on the mere ground
that he signed an apparent admission on the warning slip.
Considering the manner in which he was given the warning, it
is understandable that he would not dispute the assertion of
his "guilt" in violating the rule as it is written.
The foregoing is ample to sustain the complaint and the
election objections that the solicitation rule was discrimina-
torily applied? 5 Considerably more was alleged and litigated
providing further support on this issue, as outlined below.
(1) Undisputed in testimony, there was no rule against
talking on working time or fraternizing with fellow employees,
provided they did not wander from the area of their work
station. Respondent has not attempted to clarify whether it
considers just talking about the Union on company time,
without actual soliciting, a violation of its rule. Heatherly
merely talked, and Bowling did only when approached to
answer questions The employees with whom they spoke, if
any complained to Respondent, were not shown to have been
disciplined .21
(2) Portions of the campaign letters and speeches of
Respondent, from August 9 through December 14, clearly
establish union anrmus2 7 (as do the violations on other issues
found below). "Loyal" employees were encouraged and
provoked28 to act and speak out in opposition to the
Union.29
(3) Called by Respondent, George L. McElroy, a working
leadman'30 admittedly engaged in extensive antiunion activ-
ities during working hours-with concentrated effort at least 2
weeks preceding the election. In these practices, he worked
with Larry Sherrow, an expediter not in the bargaining unit,
Guy Atkins, and "several other people," unidentified Inter
alga, these individuals were responsible for numerous cartoons,
circulars, and other writings which were put on bulletin boards
and in various places where employees could see them all over
the plant McElroy testified that as fast as they were put up,
they were removed-mainly by Personnel Manager Shyrock'31
who regularly patrolled the plant in the immediate preelection
period He tried not to get caught, was not personally warned
or disciplined for these actions, and knows no people in his
department who were cited for violating the no-solicitation
rule His immediate supervisor, Dave Donoghue, generally told
him not to solicit on company time. Shyrock "confiscated"
from his desk a number of different cartoons and pieces of
campaign literature, typed and hand-written. (At any time
there were at least seven or eight people around his desk,
which is at the center of the plant.) She said "we weren't
allowed to do this sort of thing," and she was "supposed to
confiscate" all matter pertaining to the union election.32
Questioned closely, McElroy stated that the confiscation of
these documents took place about three times, all on the same
day.33 Shyrock testified that she took steps many times every
day to police the plant regarding campaign material She
identified the seven exhibits introduced in evidence, indicating
there were many copies which she collected 34 She asked some
of the employees "who was doing it," and they said they did
not know. Concerning such widespread campaigning on com-
pany time, no general instructions were issued to supervisors
nor announcements made to employees about what was going
on in the plant. She discussed briefly with Plant Superinten-
dent Arley Dickens the posting of literature around the plant
and suggested that they would have to "watch this closer", he
agreed and said he would help all he could. Excepting a
reference by Shyrock to her erasures of "vote no" or "vote
yes" signs scribbled on the floor and the walls, all this
testimony relates to antiunion material spread within the
plant.
On the above evidence, and the whole record, the con-
clusion is compelling that Respondent was designedly lax in
the enforcement of its rules against those responsible for the
intensive antiunion campaign conducted on company time. It
may certainly be assumed that Respondent could quite
effectively have taken steps to control the situation beyond
the described "policing" of the plant almost entirely by
Shyrock and her pallid efforts to apprehend the perpetra-
tors.35 Contrasted within the severe warnings given three of
the leading union protagonists, no action was taken against any
of the active union oppositionists, except the "warning" issued
24 Cf. N.L.R B v Bumup and Sims, Inc, 379 U.S 21.
25 While General Counsel has emphasized the timing of the rule's
promulgation and the ambiguous manner in which it was drawn, the
specific issue is not raised , and no finding need be made, as to whether
Respondent adopted the rule for a discriminatory purpose
26 See Gooch Baking Co, 162 NLRB No 2, Louisville Chair Co.,
161 NLRB No 31
27 From speech of Plant Manager Weis on August 9 "We are
opposed to this union because it has done nothing but create trouble for
us since we came to Missouri , and we intend to use whatever legal means
are necessary and proper to prevent its coming here It is our opinion
that an outside third party will not bring any good to Fasco folks, but
instead could do very serious harm." Cf. Greensboro Hoisery Mills. Inc,
163 NLRB No 108.
28 Letters of November 18 and December 5
29 See Magee Carpet Co ., 168 NLRB No i 1,J W Martell Co, 168
NLRB No 80
30 His vote in the election was challenged.
31 The personnel department consisted of Shyrock and one office
clerical
32 In Shyrock's version, she asked the people at McElroy's desk,
"Who did this?", would get no answer, and she would say it was not
permitted and they "must not do it "
33 Previously he indicated these materials were not on his desk
longer than 20 minutes .
34 For example, she had gathered a stack of 50-60 copies of one
antiunion exhibit (Resp Exh. 8), which appeared between December 6
and 10
35 As a noteworthy sidelight, an employee who was the Company's
observer in the election, testified (on behalf of Respondent) that she
never saw Shyrock going through the plant doing anything in
connection with union or antiunion literature.
FASCO INDUSTRIES, INC. 527
Working Leader Cronin under distinguishing circumstances
shown infra Compared with the flimsy or nonexistent
evidence it had in punishing Cochran, Heatherly and Bowling,
it is revealing that disciplinary or earnest investigative measures
were not initiated at least as to McElroy, after implicating
literature was repeatedly found on his desk.36
(4) Cronin's 37 campaigning against the Union was the
subject of considerable testimony, although she was not called
as a witness . Her activities on working time included solicita-
tions of employees to wear buttons and hand-made signs, and
passing out Fasco matchbooks, all of which she carried
supplies-and she furnished certain employees for distribution
at the plant gate printed handbills signed "The Fasco Faith-
fuls." Further, she engaged in other types of solicitation of
employees while at work, e g., for a Christmas party and to
join a bowling league. Betty Brown gave testimony that, after
Cronin had asked her to take one of the handmade signs
(about November 30), she complained to Foreman Clifford
Ellingsworth -stating that she did not appreciate it and felt she
was being tested. Brown also went to the personnel office and,
in Shyrock's absence, left a message concerning the incident.
Ellingsworth told Brown that in his department he did not
approve the wearing of anything for or against Fasco, and at a
later point, he informed Brown that he had reported the
matter to higher supervision. On November 30, Cronin
received a written warmng from Castleberry, witnessed by
Stewart, viz.: "Solicitations of Employees to Wear Medallions
Promoting Company interests during Company Time While a
Union drive was in Process. Employee says she was not aware
of this connotation of the Solicitation Rule." The "Next
Action" line contains no entry. According to their testimony,
Castleberry obtained the information from Shyrock in the
same manner as related above in the cases of Cochran and
Heatherly-without disclosure of the identity of the complain-
ant.38 On this record, I believe it highly implausible that
Respondent was oblivious to all this solicitation and election-
eering by Cronin on company time Rather late in the course
of events, Cronin was given a kind of written warning, pressed
by the sharpness of Brown's complaint, which Respondent
could not fairly avoid. The nature of the warning itself is
clearly distinguishable for its mildness in relation to those
issued to the prounion advocates, supra. By no means has
Respondent thus demonstrated, as it contends, that it pursued
a practice of impartial enforcement of its no-solicitation rule;
rather the contrary.
C. Denial of Heatherly 's Merit Increase
Under established policy, employees became eligible for
merit raises not longer than every 3 months, until they reached
the top of their classification. Prior to the due date, the
employee concerned was usually interviewed by the foreman.
Heatherly had theretofore received all such periodic raises. As
of December 9, she was due her next merit increase, but had
not been called for an interview. Two weeks later, when the
increment was not reflected in her paycheck, she visited
Foreman Castleberry. He informed her that she was not
entitled to a raise at this time, and described four reasons,
which he had written down (1) The written warning for
solicitation which she received on November 9; (2) a verbal
warning for tardiness (which was given her "in the fall" by
Working Leader Cronin), (3) a verbal warmng for tardiness (at
the time mistakenly indicated by Castleberry as a written
warning), and (4) a verbal warning for being late in returning
to her work station (also explained to her as "roanung the
plant during working hours").39 She later received a merit
increase of 5 cents an hour, beginning on January 13.
Castleberry stated that, at the time he discussed with Heather-
ly the omitted merit raise, he had "mentally reviewed" but had
not filled out the usual company form of "Employee Merit
Rating," which listed 10 items for consideration. As Shyrock
related-"not unless it was an extreme case," have employees
been passed over because of excessive tardiness, "usually there
is another factor or two involved. ,40
It is sufficient to hold, in view of the above, that the
discriminatory enforcement of the no-solicitation rule as to
Heatherly on November 9, was a substantial, if not the
controlling factor in denying her the merit increase on
December 9; hence the latter action was likewise discrimina-
tory and violative of Section 8(a)(3), as alleged.
D. Further Restraint and Coercion
1. Freda Bowling
About 2-3 weeks before the election of December 15 '41
Bowling began wearing a union button on the job, along with
three other girls in her department. Foreman Jackson inquired
as to why she was wearing it-whether she was sure of her
position in the Union. She replied that, if she was not, she
would not be wearing it He said it made his department look
bad because his girls were the only ones wearing them, and
repeatedly that day asked her to take it off. Katherine
Keisling, present during at least one of these conversations,
testified that Jackson also told Bowling that she "would get
ahead" if she did not wear the button. Initially refusing,
Bowling finally consented to remove the button, but only for
that week. When she resumed wearing it the following week,
Jackson remarked that she had on her "identification tag,"
and she countered that she was going to keep it. Jackson's flat
denials of these conversations are not accepted.
36 See A T T Warehouse , Inc, 169 NLRB No. 75, William L.
Bonnell Co., 164 NLRB No 17.
37 Cronin cast a challenged ballot in the election Foreman
Castleberry was her immediate superior and Heatherly was one of her
subordinates Castleberry testified that Cronin issued to employee "not
strong reprimands " While he thereafter denied that she "admonished"
employees , it was evidenced that Heatherly received an oral warning
from Cronin for tardiness , which was stated as a factor in denying her a
merit increase , infra However , the issue under consideration is whether
Respondent engaged in disparate application of its rules , and absent
specific allegations , no findings are made or implied that Cronin is a
supervisor or acted as an agent of Respondent in her antiunion
activities.
38 Shyrock stated she was apprised of the complaint by Elling-
sworth, did not speak to the employee or to Cronin , and told
Castleberry she felt that a written warning was in order Stewart
testified that it was explained to Cronin how she had violated the rule,
but he did not recall what was said
39 In late November , an employee opposed to the Union (Jim Ellis)
had stopped her on her return from lunch and asked questions regarding
the Union's contract terms As a result , she was 10 minutes late getting
back to her work station. There is no showing that Ellis was similarly
warned Cf J P Stevens and Co., Inc., 163 NLRB No 24 (TXD).
40 Since the plant opened in July 1965, there have been but 35
instances of the withholding of merit increases for various reasons-and
excepting Heatherly , none for violating a no-solicitation rule.
41 About November 25, Bowling told Plant Manager Weis her
"union sentiments," that she was "one of those union pushers he had
been hollering about" (presumably relating to Respondent 's letter to
the employees on November 21).
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While the evidence is clear that Jackson did not order or
require Bowling to take off the union button, it does show
that he was attempting to induce her by reason of her
leadership to influence other employees in his department to
cease wearing their buttons. Coupled with the direct or implied
promise she would "get ahead," Jackson's request must be
found coercive And in the coercive context, General Counsel's
allegation that Jackson also engaged in unlawful interrogation
is sustained.
Bowling testified that, a week or two before the election at
her winding machine, Jackson informed her there was a
position open which paid $600 a month, as Plant Superinten-
dent Dickens' secretary, and asked her if she would be
interested. She laughed and said she was not that dumb.
Jackson questioned, "just what would it take for [her] to keep
her mouth shut about the Union." Her reply was that he could
not afford it 42 The next day, Dickens came by and inquired
whether Jackson had told her about the secretarial position
being open. She asked if he was serious and, if he was, she
would like to come in and talk to him about it. He told her to
come in any time, however she did not go. So far as she knew,
Dickens never had a secretary.43 Two or three days later,
Jackson told her she was the "ten pin" of the whole union
campaign, and if he could get her to pull out of it, he did not
have to worry; she would have to talk to his department and
"pull them out for him," because he could not do it himself.
On the day before the election, Bowling asked Jackson to go
away and leave her alone, as he was interfering with her work.
His response was, in effect, that if he was accomplishing
anything to change her mind, he "didn't give a damn" whether
or not she did her work.
Dickens could not recall the conversation with Bowling
about a secretarial job, but averred that he had mentioned such
a job to employees from time to time, and that it has been
"sort of a joke" in the plant, as he has never had a secretary.
Jackson testified there was just one conversation with Bowling,
about November 15, with Dickens "standing pretty close. °44
He was discussing with her different job opportunities she had
been given during her employment with Respondent-when
Dickens said, "Why don't you offer her the job as my
secretary?" All were laughing or smiling . Jackson knew of
several occasions with numerous employees that Dickens had
offered this job "just in a joking way." No discussion of the
Union or her activity was involved. He made no specific denials
concerning other parts of Bowling's testimony. On the
substance of all the evidence related, and in view of Jackson's
shifting and evasive testimony at times, the account given by
Bowling is credited.
The evidence substantially supports the General Counsel.
On two successive days, first by Jackson and then by Dickens,
the subject of the secretarial job was mentioned to Bowling.
Whether or not it was made in a jocular vein or atmosphere,
Respondent's serious purpose in communicating an offer of
benefit relating to Bowling's union activity was plainly
intended and so understood. Indeed, it was but another
instance of Jackson's persistent efforts, by holding forth
promises, to convert Bowling to Respondent's side or induce
her withdrawal with the union campaign. The subsequent
conversations shortly before the election involved similar
attempts to achieve the same objective. Although I include in
these findings of coercive conduct Jackson's remark, in
context, that Bowling was the "ten pin" of the whole
organizing drive, the language used does not permit so broad
an inference, as contended by General Counsel, that it also
constituted a veiled threat of reprisal. Accordingly, consistent
with the foregoing, further violations of Section 8(a)(l) as well
as selection interference are concluded.
2 Other alleged interrogations
A few weeks before the election, Foreman Jackson dis-
cussed the Union several times at the work station of Mary
Lou Johnson. One instance is alleged in which he asked her
why she was in favor of the Union, and she replied, "Lack of
seniority." He said it was not seniority that counted but how
much money they made and whom they knew .41
On January 28, 1968, Ethel Smith was interviewed for a
merit increase by her foreman, Merle Coffer, in which he rated
her favorably on all factors. In a conversation that followed, he
asked her to tell him "for his personal benefit," in substance,
whether there was something he had done to cause her to take
a stand for the Union. She said it was something she believed
in.
As to Johnson, it is apparent that her active espousal of the
Union was a known and accepted fact in this conversation with
Jackson, and that he was engaging in argumentation to
dissuade her. In such posture, it does not follow automatically
that a violation is committed where the supervisor asks the
employee her reasons for favoring the Union. As to Smith, the
conversation was subsequent to the election, and it is not
contended that Coffer was impliedly promising to rectify any
past mistreatment in order to influence her against the Union;
here, too, both in the conversation clearly assumed the fact of
her union adherence 46 In neither case, despite unfair labor
practices elsewhere, do I find that an inference of coercion is
warranted 47
E. Surveillance
On Tuesday, November 28, the Union conducted a meeting
among the Fasco employees at its leased headquarters on the
public square of Ozark, a relatively small town, about 2 miles
from the Fasco plan t48 The plant had let out at 3:30 p.m.,
42 Keisling , who overheard this discussion , substantially corrobo-
rated Bowling Both witnesses were frankly uncertain of the date
Keisling estimated that it took place 4-5 weeks before the election, and
stated that it preceded the incident involving union buttons , above.
Jackson placed it at "probably a month " prior to the election . However,
on the findings of the statements made, it is not essential to determine
the precise sequence of these events.
43 Quite sometime before the Union's advent , she had unsuccess-
fully applied for certain jobs with Respondent in typing and filing
44 On direct , he had denied having such a conversation with Keisling
present , on cross, he admitted Keisling was in the area but did not recall
how close
45 Jackson admitted talking to Johnson on occasions before the
election in which the Union was "probably " brought up , but denied
asking her about her union sentiments.
46 She passed handbills and was otherwise active in the union
campaign
47 Blue Flash Express, Inc, 109 NLRB 591. And see Struksnes
Construction Co., 165 NLRB No. 102 ,Bourne v. N L.R .B., 332 F.2d 47
(C A. 2)
48 The nearest city is Springfield, Missouri, about 10 miles from the
plant in the opposite direction from Ozark.
FASCO INDUSTRIES, INC. 529
and the meeting at 4 p.m lasted about an hour The meeting
place had a lettered sign with the Union's name exposed
directly on the square, and a large plate glass window in front,
with blinds open, into which passersby could look in from the
street level. At the meeting, the employees were seated in
chairs which were arranged to face the window. Foremen
Glenn Jackson and Dewey Nelson were observed by employees
and Union Agent Edwards in the following conduct- Between
3.45 and 4 p.m., they drove in separate cars around the square
at least two or three times looking in the direction of the
meeting place, then they parked in front of a drug store
directly across the square, went into the store, and at various
times were standing at the window of that store looking
toward the union hall, about 100 feet distance and in clear
view; as the employees were leaving the meeting after its
conclusion, they separately departed from the square 49
Jackson testified he always eats in Ozark,5 ° has come there
frequently with Nelson, but has no recollection of being on the
square in latter November while a union meeting was in
progress. He had heard a "rumor" of a union meeting place on
the west side of the square, but did not know it as a fact,s i
and denied that he had ever spied on any organizing meeting.
Nelson testified that he and Jackson have come to the
square after work and had coffee together-"not frequently."
On November 28, he needed to have wrist band adjusted on a
new watch he recently obtained from a jeweler located on a
side street "that leads off the square." He had asked Jackson
to join him for coffee in Ozark. About 3.50 to 4 p in., they
drove around the square looking for a space, parked, walked to
the drug store, and had their coffee. The coffee bar is situated
where traffic could be observed on the square and people seen
going in and out of the union hall-but they made no effort to
do so. He saw some people around the square, no more than he
sees on an everyday basis. He and Jackson were in the drug
store about 5 minutes, and then left in their cars in separate
directions. He then drove to the jewelers and, without
returning to the square, directly home. His total time in Ozark
was no more than a half-hour that evening and, to his
knowledge, Jackson was there about 10 minutes. When coming
to the square that evening, he was aware that there was to be a
union meeting, as he had heard "rumors" from employees in
the plant. He did not see the union hall, did not know
"exactly" where it was, 52 but "had an idea." When he invited
Jackson for coffee, and at no time thereafter when they were
together that day, was there mention made of the meeting, the
union hall, or anything pertaining to the Union.
It is evident that the explanations of Jackson and Nelson
contain certain inherent implausibilities.53 At this stage in the
union campaign, with electioneering widespread in the plant
and Jackson so intensively involved-it surpasses credulity that
the subject of the Union was not referred to in the slightest
during the supposedly casual visit of Jackson and Nelson to the
immediate area of the union meeting at Ozark square Nelson
admittedly was aware of the union meeting, knew the clearly
marked location of the union hall, and noticed plant em-
ployees on the square. Despite all the evidence purportedly to
show justification for his presence in Ozark and that of
Jackson, Nelson had no appointment to visit the jeweler or
compelling reason to go there at this precise time. In all the
circumstances, their appearance in Ozark contemporaneous
with the scheduled union meeting cannot be ascribed to sheer
coincidence Nelson's version that they were within the square
merely 10 minutes is in direct conflict with Edwards and
Heatherly-whom I credit. The conclusion is well supported, in
my opinion, that Jackson and Nelson intentionally came to
Ozark on this occasion to observe the employees and the union
meeting, and that they did engage in unlawful surveillance,
violative of Section 8(a)(1).54
F. Misrepresentation of Union Dues
On December 15, a normal payday at the plant, checks
were distributed to the employees about 2 hours before the
election polls were to open. In this instance, each employee
received two checks- one for $12.80, and the other reflecting
the net pay of the employee, reduced by the same $12.80.
Attached to the latter was a stub on which was stamped in
bold type "UNION DUES DEDUCTION $12.80." Accom-
panying the checks was an explanatory letter55 from Respon-
dent captioned "Payroll Deduction." In substance, the letter
undertakes to describe the amount of dues paid by members
employed with certain other companies in the Springfield
area-assertedly ranging from $6.78 to $21.28. In the final
paragraphs, the letter states.
The I.B.E.W. has said it would require you to pay dues of
$4.72 per month if it were to win the election on December
15th, and if you were required to join the union.
As you can see, I.B.E.W. dues and assessments apparently
vary from place to place, and there is no way of telling at
this point just what the I B.E.W. dues structure would be. It
might be $4.72, $6.78, $12.80, or $14.17-who knows? Or,
it might start out at $4.72 and wind up at $14.17-who
knows?
The payment of such dues and "working assessments" may
be avoided by voting "NU' on your ballot.
The Union had specifically informed the Fasco employees
that their total dues as union members would be $4.72.
Respondent was fully aware of such notification by the
Union.56 As appears in its campaign speeches and letters to
employees, Respondent had been stressing that the Union's
sole interest in organizing the employees was to obtain large
amounts of dues and fees.5 7 Assistant Business Agent Edwards
testified that the amount of $4.72 was determined by the
Union to be the proper dues for the Fasco employees, as
derived from the Union's system of classifications in its
constitution and bylaws. With no attempted refutation by
Respondent, he explained the reasons for the distinctions in
49 Based principally on testimony of Edwards, Heatherly, and Mary
Lou Johnson
50 His home is in Springfield.
51 Respondent 's campaign letter of November 17 commented that
the Union had suddenly "set up shop " by opening an office in Ozark.
52 However , he described it as "the old Welfare Building."
53 In addition , I find their testimony significantly lacking in
forthrightness
54 As ample grounds to set aside the election are elsewhere
established herein, it is unnecessary additionally to rely upon the
surveillance in the absence of a specific objection filed. It should be
clear, however , that the Board in its responsibility to determine whether
a fair and conclusive election was held, may consider relevant evidence
disclosed in its investigation , independent of whether the conduct is
raised in formal objections . E g , N.L.R B. v Realist, Inc, 328 F 2d 840
(C A 7).
55 Set forth in appendix A hereto.
56 Respondent 's speeches of December 13 and 14, at p. 10.
57 Letters of December 5 and 11, speeches on December 13 and 14,
at pp 10, 11.
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dues structure at various companies, including those men-
tioned by Respondent, depending principally upon the Union's
formula as to the types of industry involved His testimony
demonstrates that Respondent's statement to the employees,
in the penultimate paragraph quoted above, is basically untrue.
Respondent did not simply conjecture that the Umon might
raise its dues at some time in the future to reach $12.80, or
any of the other amounts its postulated. Typical of other
unions and organizations, the dues of any class of members in
the Union can of course be changed, upward or downward, by
prescribed democratic procedures in the constitution and
bylaws Respondent did not endeavor to contact the Umon for
dues information or material. Instead, it presumed to thrust
upon the employees an essentially inaccurate position in direct
contradiction of the Union, and concerning such a matter as
belonged internally within the province and especial know-
ledge of the Union. At the hearing it produced no evidence of
reasonable basis for its misstatement, as made, to the em-
ployees. Utilizing the device of a separate check for $12.80,
marked union dues deduction, with corresponding emphasis on
this amount elsewhere in its literature,58 Respondent could
expect, or scarcely fail, to bring home to the employees the
intended message that it was the Union deceiving them in the
amount of dues it would levy Moreover, Respondent carefully
timed the major impact, in dramatic form, for the very day
and imminence of the election, depriving the Union of any
opportunity to dispel the false image created The overall
evidence is inescapable that Respondent, by misleading and
disingenuous means, engaged in a substantial departure from
truth in misrepresenting the amount of the Union's dues. It
suffices to find, as I do, that by such conduct Respondent
further interfered with the election.5 9 With respect to the
Section 8(a)(1), the decision cited and argued by the General
Counsel in his brief provides the very reason this Trial
Examiner dismisses the allegation and defers to the Board 60
G Temporary Assignment of Johnson
On September 9, the day after she first handbilled the
plant, Mary Lou Johnson was temporarily transferred by her
working leader (Joe Inman) from her regular job in the
winding department to the leadline department, where she
remained for less than 2 days. She testified that on the latter
job she had to put four "ties" on each motor to hold the lead
around the coil, that she never did this work before and was
not used to it, that she worked with plyers (not needed on her
regular job) which made a blister on her hand; that she had to
stand all the time whereas she sat half the time on her winding
job, that on the leadline there was a continually moving
conveyor belt but as a winder she set her own pace; and that
she spoke to Foreman Jackson about this transfer and he
admitted that it was "not all his idea." In other respects, the
plant conditions were the same, and she continued to receive
58 The specific sum of $12 80 was represented to be the dues
currently charged members of the Union working as maintenance
employees under a subcontract at a company in Springfield , Missouri
Actually, these members were paying dues of $14 17.
59 There is no necessity to pass upon the Union's contention that
the representation ground rule of Peerless Plywood Company, 107
NLRB 427 (proscribing campaign speeches to assembled employees
within 24 hours of a scheduled election ) is applicable, although similar
equities may be present.
60 Yazoo Valley Electric Power Association, 163 NLRB No. 106.
And see e.g., R.J Reynolds Foods, Inc., 168 NLRB No. 47 (TXD).
the higher pay of her regular job. Transfers to the leadline are
made as often as once a week, depending upon the work load
and the availability of employees. She has at various times
been transferred to other functions in the plant and, following
this first occasion, to the leadline department 6 1 Usually, she
receives such temporary assignments when her winding
machine is down. Other employees, some also active in the
Union, were routinely transferred from winding to leadline'62
and such transfers have been made "before the Union." She
used certain hand tools in the winding operation and occa-
sionally got blisters.
Regarding this transfer on September 9, Johnson pointed
out (as was apparently offended by) the failure of Respondent
to observe her senior status, but she later agreed that seniority
was not considered a factor by Respondent in such transfers.
Jackson's affirmation that it was "not all his idea" is at best an
ambiguity. Batterson testified that, on the day of this transfer
in question, she saw certain other employees operating
Johnson's winding machine 63 Perhaps reasons for scrutiny
and suspicion are present in the timing of Johnson's transfer
this first occasion, as well as in the direct conflict in Jackson's
testimony that, without exception, particular winders are
assigned to the leadline only when their machines are down.
However, without more, a finding of unlawful discrimination
will not lie. Temporary transfers were commonly made among
the winders, and other employees, to functions commensurate
with the character of their general employment. The initial
transfer to the leadline appeared more difficult to Johnson
because she was then unacquainted with the operation, but she
was not immune from temporary assignments to new func-
tions General Counsel has not established that Johnson
suffered any substantial detriment or that the leadline work
was "more onerous" in significant degree Accordingly, this
allegation is dismissed.
H. Disciplinary Suspension of Heatherly
On March 21 Heatherly asked her immediate supervisor,
Eddie Gimlin,64 for 3 days off (leave without pay) from
Friday, March 25, through Tuesday, March 29. Her husband
was on vacation during this time and they made plans for a
long weekend to visit their family in Kansas City. On March
23, Grmlin advised Heatherly that Castleberry and Shyrock
had been consulted, and that her request was denied because
they were too short-handed at this time. He appreciated that
she made the request instead of taking the time off and calling
in sick On March 24, Heatherly was asked to come in to work
on Saturday, as she was particularly needed. She declined, and
said she was still planning a weekend tip (by automobile) to
Kansas City. Gunlm gave his approval. Returning home from
Kansas City at 7-8 p.m. Sunday night, she decided she would
not go in the next day. Traffic had been very heavy on the
61 On these later transfers , she indicated that she did not do the
same work with the plyers , but she left it vague as to how the leadline
work differed in other respects.
62 Her partner in winding, Linda Batterson , who had also passed out
handbills on September 8, was transferred the next day to a
single-operator machine, but not to leadhne.
63 Although Batterson fixed the date of Johnson 's first handbilling
as November 15
64 Under Foreman Castleberry.
FASCO INDUSTRIES, INC.
return trip, she was 3 months pregnant and was worn out from
the trip, as were her children, ages 4 and 8. On Monday, at
8:15 a m., she called in6 5 and reported to the inspection
department secretary that she was "just too tired to work that
day," and would be in at the regular time, 7 am , the next
day On Tuesday, about 11.30 a.m., Guilin, accompanied by
Castleberry, told her that, because she did not come to work
after she was told she could not take off, he was putting her on
disciplinary layoff for the rest of the week.
Of some significance is the message left by Heatherly with
the secretary-that she was "too tired to work that day." And
she placed the call at least 45 minutes after the switchboard
was supposed to be in operation. Her decision to take the day
off had been made the night before. She was not sick and did
not report sick. She was apprised in advance that she could not
be spared from work on this day. Heatherly's personal or
subjective considerations, however sympathetic, were not
shown as within Respondent's knowledge, and are not material
in any event. On the surface it could well appear to
Respondent, not unreasonably, that she was flaunting instruc-
tions. Respondent was aware of her union activities and had
demonstrated its hostility, e.g., by the discriminatory warning
given her on November 9, prior to the election. Nevertheless,
as to this incident, Respondent had a valid basis for taking
some disciplinary measure Her suspension from work for
about 3'h days is alleged as unduly severe and harsh However,
this is not sufficiently evident on its face, and comparable
situations have not been shown as to establish disparate
treatment. Consequently, the allegation here is dismissed
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III, above,
occurring in connection with the operations of Respondent
described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I will recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
It has been found that Respondent discriminatorily denied
Patricia R. Heatherly a merit increase in the amount of 5 cents
an hour during the penod from December 9, 1967, to January
13, 1968. It will therefore be recommended that Respondent
make whole this employee for such loss of earnings by
payment to her of a sum of money equal to that which she
would normally have earned, absent the discrimination. Such
backpay shall be in conformity with the 6 percent interest
requirements in Isis Plumbing & Heating Co., 138 NLRB 716
Further, it will be recommended that Respondent preserve and
make available to the Board all payroll and personnel records
necessary to determine the amount of backpay due, including
the number of hours actually worked by Heatherly during the
brief backpay period.
65 She explained that she had not called in earlier because there was
usually no one at the switchboard until almost 7 30 a in.
531
It has also been found that Respondent discriminatorily
issued written warnings to Heatherly, Jim Cochran, and Freda
Bowling, based upon unlawful enforcement of its no-solicita-
tion rule. It will therefore be recommended that Respondent
expunge from the personnel files of these employees, and from
all plant records, these written warnings, or copies thereof, or
any notations of their existence, and to cease relying upon its
issuance of these warnings for the purpose of any future action
affecting the said employees with regard to their wages, hours,
and conditions of employment
Upon the foregoing findings of fact, and upon the entire
record in, the cases, I make the following-
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By promulgating, maintaining and enforcing rules which
prohibit employees from engaging in union solicitation on
nonworking time, Respondent has interfered with, restrained
and coerced employees in violation of Section 8(a)(1) of the
Act.
4. By denying Patricia R. Heatherly a merit increase on
December 9, 1967, thereby discouraging membership in the
Union, Respondent engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
5. By all the above, and by various other acts and conduct,
Respondent engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act
7. By certain of the aforesaid unfair labor practices
committed prior to the Board election held on December 15,
1967, Respondent has interfered with and affected the results
of such election.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the cases, I
recommend that Respondent, Fasco Industries, Inc., Ozark,
Missouri, its officers, agents, successors, and assigns, shall,
1 Cease and desist from
(a) Discouraging membership in International Brotherhood
of Electrical Workers, Local Union 453, AFL-CIO, or in any
other labor organization, by denying employees merit in-
creases, or in any other manner discriminating in regard to hire
or tenure of employment or any term or condition of
employment
(b) Promulgating, maintaining, or enforcing a rule which
prohibits employees from engaging in union solicitation duiing
their nonworking time.
(c) Enforcing rules prohibiting solicitation during worktime
in a manner which discriminates against solicitation on behalf
of the Union.
(d) Interrogating employees in a manner constituting inter-
ference, restraint, or coercion, engaging in surveillance of
union meetings or other union activities of employees, offering
or promising employees benefits to induce them to engage in
antiunion activities, or to withdraw from union membership or
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
support, or to exert influence on their fellow employees in
opposition to union representation.
(e) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2 Take the following affirmative action designed to effec-
tuate the policies of the Act.
(a) Expunge from the personnel files of Patricia R. Heath-
erly, Jim Cochran, and Freda Bowling, and from all plant
records, the written warnings issued to them in 1967,
concerning violations of the no-solicitation rule, as set forth in
"The Remedy" section of the Trial Examiner's Decision.
(b) Make whole Patricia R. Heatherly for any loss of
earnings suffered by reason of the discriminatory denial of a
merit increase on December 9, 1967, as set forth in "The
Remedy" section of the Trial Examiner's Decision.
(c) Preserve and make available to the Board or its agents
all payroll and other records, as set forth in "The Remedy" of
the Trial Examiner's Decision.
(d) Post at its Ozark, Missouri, plant, copies of the attached
notice marked "Appendix B."66 Copies of said notice on
forms to be provided by the Regional Director for Region 17,
shall, after being duly signed by Respondent, be posted
immediately upon receipt thereof in conspicuous places and be
maintained for a period of 60 consecutive days. Reasonable
steps shall be taken to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 17, in writing,
within 20 days from the receipt of this Trial Examiner's
Decision, what steps Respondent has taken to comply here-
with .67
IT IS FURTHER RECOMMENDED that the election con-
ducted among Respondent's employees on December 15,
1967, be set aside and a new election directed at an
appropriate time.68
IT IS FURTHER RECOMMENDED that the complaint be dis-
rrussed insofar as it alleges violations of the Act not specifically
found herein.
66 In the event that this Recommended Order be 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, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words
"a Decision and Order "
67 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 17, in writing , within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
68 The Union's request , in connection with the conduct of the
representation proceeding , that Respondent be required to post a notice
affirmatively showing the correct amount of the union dues (or
effectively withdrawing its misrepresentation ) is more appropriately
referred to the Board
APPENDIX A
PAYROLL DEDUCTION
The sum of $12.80 has been deducted from your paycheck
this week. We have given you a separate check in this amount to
make up for this deduction. This represents the amount of the
monthly dues currently being charged by the International
Brotherhood of Electrical Workers to its members who are
working for Dameron Electric Company as maintenance
employees at Lily-Tulip Cup Corporation in Springfield,
Missouri. In addition, these I. B. E. W. members are required to
pay to the local union 2% of their gross earnings each week as
a "working assessment."
Journeyman electricians working for another electrical
construction firm, who are members of the I. B. E. W. in
Springfield, are currently paying dues amounting to $14 17 per
month, plus 2% of their gross earnings as a "working
assessment "
At City Utilities in Springfield, I B. E. W. members working
there have deductions from their paychecks each month,
which go to the local union, ranging from,$6.78 to $21.28. It
is reported that these sums may include dues, assessments, and
some insurance premiums. We are not certain as to the amount
which represents dues alone
The I B. E. W. has said it would require you to pay dues of
$4 72 per month if it were to win the election on December
15th, and if you were required to join the union.
As you can see, I. B E. W. dues and assessments apparently
vary from place to place, and there is no way of telling at this
point just what the I B E W. dues structure would be. It
might be $4 72, $6 78, $12 80 or $14 17-who knows? Or, it
might start out at $4.72 and wind up at $14.17-who knows?
The payment of such dues and "working assessments" may
be avoided by voting "NO" on your ballot.
APPENDIX B
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 NOT discourage membership in International
Brotherhood of Electrical Workers, Local Union 453,
AFL-CIO, or any other labor organization, by denying
employees merit increases, or in any other manner dis-
criminating in regard to hire or tenure of employment or
any term or condition of employment.
WE WILL NOT coercively interrogate employees with
respect to their union sympathies or activities
WE WILL NOT offer or promise employees benefits to
induce them to engage in antiunion activities, or to
withdraw from union membership or support, or to exert
influence on their fellow employees in opposition to union
representation.
WE WILL NOT engage in surveillance of union meetings
or other activities of employees.
WE WILL NOT promulgate, maintain, or enforce any rule
which prohibits employees from engaging in union solicita-
tion during their nonworking time.
WE WILL NOT by disciplining employees, enforce rules
prohibiting solicitation during worktime in a manner which
discriminates against solicitation on behalf of the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of their
right to self-organization, to form labor organizations, to
join or assist the above-named, or any other labor organiza-
tion, to bargain collectively through representatives of their
own choosing, or to engage in any other concerted activities
FASCO INDUSTRIES, INC.
for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities,
except to the extent that such right might be affected by a
lawful contract requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section
8(a)(3) of the Act, as amended
WE WILL expunge from the personnel files of Patricia
R Heatherly, Jim Cochran, and Freda Bowling, and from all
plant records, the written warnings issued to them in 1967
concerning violations of the no-solicitation rule.
WE WILL make whole Patricia R. Heatherly for any loss
of earnings suffered by reason of the denial of a ment
increase to her on December 9, 1967.
533
FASCO INDUSTRIES, INC.
(Employer)
Dated By
(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 direct-
ly with the Board's Regional Office, 610 Federal Building, 601
E. 12th Street, Kansas City, Missouri 64106, Telephone
374-5282.