McGraw-Edison Co.

National Labor Relations Board - Board Decisions

Aug 19, 1968

172 N.L.R.B. 1604 (N.L.R.B. 1968)

1604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McGraw -Edison Company (Bersted Manufacturing
Division) and Local 257 , International Brother-
hood of Electrical Workers , AFL-CIO, and
Teamsters Local 833 , affiliated with International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America. Cases
17-CA-2977, 17-CA-3033, and 17-RC-5212
August 19, 1968
DECISION, ORDER , AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On September 11, 1967, Trial Examiner Melvin
Pollack issued his Decision in the above -entitled
proceeding , finding that Respondent had engaged
in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner 's Decision. He
also found that Respondent had not engaged in cer-
tain other unfair labor practices alleged in the com-
plaint and recommended dismissal of such allega-
tions . Finally , he recommended that the objections
to the election in Case 17-RC-5212 be overruled
and the results thereof certified . Thereafter,
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief , the General Coun-
sel filed cross -exceptions to the Decision and a sup-
porting brief, and Respondent filed a brief in
answer to the cross -exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
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, the
cross -exceptions , the briefs, and the entire record
in these cases , and hereby adopts the findings,' con-
clusions , and recommendations of the Trial Ex-
aminer, with the following additions and modifica-
tions:
(1) The Trial Examiner round that Respondent
had violated Section 8 ( a)(3) and ( 1) of the Act by
laying off approximately 120 employees at its
' The Trial Examiner found that Supervisor Kenneth Roods questioned
Lawrence Boeckman about a union meeting in violation of Section
8(a)(I) The Trial Examiner also found that Supervisor Racket 's order that
Lawrence Boeckman get out of Racker 's department did not violate Sec-
Moberly , Missouri , plant , between May 27 and 3 1,
1966. This conclusion was based primarily on
... the Company 's opposition to unionization
of its plants , the timing of the May 27 layoff
shortly after the Union 's filing of a representa-
tion petition , the abrupt manner in which it
was put into effect , the Company's failure to
make any effort to avoid the layoff as at Kirk-
sville or to mitigate its severity , and the Com-
pany 's unconvincing explanation for assigning
and increasing fan production at Kirksville
rather than at Moberly....
We agree with this finding. But in addition to the
factors cited by the Trial Examiner to support his
finding , we rely on the numerous incidents of
8(a)( I) conduct found by the Trial Examiner, par-
ticularly the threats by supervisors that the Moberly
plant would be shut down or moved if the Union
was successful in its organizing efforts , and that the
layoff at Moberly was attributable to the Union's
organizing efforts. Thus , prior to the layoff, Super-
visor Clyde Burris told employee Russell Taylor
that if the Union got in the employees would be out
of work and the plant would move . Also prior to
the layoff, Supervisor Spicer told employee Bran-
ham that the plant might move if the Union got in.
Such coercive statements were made not only by
low-level supervisors, but also men high in the su-
pervisory hierarchy who might be expected to know
company policy . Thus , Moberly Plant Superinten-
dent McKee implied to employee Preston Buckler
that the plant might move if the Union successfully
organized the employees , and Moberly Plant
Manager Ferguson indicated to employee Diana
Robb that management was considering moving the
plant if the Union won the election.
Moreover , the record discloses that in addition to
making these threats to the employees at Moberly,
Respondent directed communications to the em-
ployees at its other plants in which it used the
Moberly plant as an example of possible reprisals
for union activity . At Boonville , Supervisors
Chrisman and Bates said to employees that the
Moberly plant would move if the Union were suc-
cessful . At Macon, Supervisor Yount told em-
ployees Selby and Ritchie to watch what happened
at Moberly . Yount added that the same thing could
happen to Macon . These foreboding predictions
were made in the context of other threats by super-
visors more particularly detailed in the Trial Ex-
aminer 's Decision , including comments by Respon-
dent 's president , McDermott , himself . Thus , in let-
tion 8 ( a)(I) In each of these instances the employee involved was David
Boeckman rather than Lawrence Boeckman The error was inadvertent
and does not affect the scope of the Order.
172 NLRB 178
MCGRAW-EDISON COMPANY
ters to the Moberly employees prior to the July 8
election at Moberly, McDermott stressed the Com-
pany's role as the provider of employee benefits.
On July 9, after the Union's success in the Moberly
election, McDermott sent letters to Respondent's
employees at the other plants requesting them to
"wait and see" what happened at Moberly.
Thereafter, on July 14, Respondent increased
hospitalization benefits at its Missouri plants other
than Moberly, explaining that these increased
benefits were not given to Moberly because that
plant had elected a union through which all
dealings had to go. We agree with the Trial Ex-
aminer, who found this latter comment to be viola-
tive of the Act, that it was calculated to impress
upon the employees that reprisals would result if
union organization were successful. On the basis of
all the foregoing and other conduct found by the
Trial Examiner to be violative of the Act, we con-
clude that Respondent's true motive for the layoff
at Moberly was discrimination for the union activity
of its employees at that plant, rather than merely an
unforeseen fortuitous economic situation.'
(2) We agree with the Trial Examiner that by
changing incentive rates for some employees
without notice of or affording the Union the oppor-
tunity of bargaining about such changes, after the
Union had been certified as the collective-bargain-
ing representative of employees in the appropriate
unit, Respondent violated Section 8(a)(5) and (1)
of the Act.'
(3) We do not adopt the Trial Examiner's finding
that Respondent violated Section 8(a)(1) of the
Act by Supervisor Bob Johnson's threat to punch
employee Ruder in the nose if Ruder made any
statements against him. There is no evidence that
the threat was related to Ruder 's union activities or
his potential testimony at a Board hearing.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that Respondent McGraw-Edison Company
(Bersted Manufacturing Division), Moberly and
Columbia, Missouri, its officers, agents , successors,
and assigns , shall take the action set forth in the
Trial Examiner's Recommended Order.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
votes has not been cast for Teamsters Local 833,
affiliated with International Brotherhood of Team-
1605
sters, Chauffeurs, Warehousemen and Helpers of
America, in Case 17-RC-5212, and that said labor
organization is not the exclusive representative of
the employees in the unit found appropriate in that
case within the meaning of Section 9(a) of the Na-
tional Labor Relations Act, as amended.
4 Additionally we note that Respondent 's contentions in this respect are
based in substantial part upon an assertion that its 185,337 unit fan inven-
tory in May 1966 was grossly excessive We find this to be inconsistent with
Respondent 's later action in using greatly increased production at Kirk-
sville to build up a yearend inventory of 237,730 fans, the largest inventory
in Respondent 's history
' N L R B v Katz, 369 U S 736, Comfort Springs Corporation, 143
NLRB 906, 913, Procter Manufacturing Corporation, 131 NLRB 1166 Cf
Tex-Tan, Inc, 134 NLRB 253, enfd in part 318 F 2d 472, where the
changes in operations were so numerous ( 1,000 changes annually) and
frequent that it would have been impractical to bargain over every change
in advance of its implementation In the present case there is no evidence
that changes, other than the few caused by mechanical difficulties, could
not have been discussed in advance with the Union
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MELVIN POLLACK, Trial Examiner: These
proceedings under Sections 9(c) and 10(b) of the
National Labor Relations Act were heard at
Moberly, Missouri, on January 10-13, 1967, and at
Columbia, Missouri, on January 16 and 17, 1967.
In Case 17-CA-2977 a complaint was issued on
September 29, 1966, amended on December 20,
1966, and further amended at the hearing. In Case
17-CA-3033 a complaint was issued on November
18, 1966. Some matters alleged in the latter com-
plaint as violations of the Act are cited by Team-
sters Local 833 as grounds for setting aside an elec-
tion conducted by the Board in Case 17-RC-5212
on November 7, 1966. Briefs filed by the General
Counsel and the Respondent have been carefully
considered. Upon the entire record' and my obser-
vation of the witnesses as they testified, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
McGraw -Edison Company ( Bersted Manufactur-
ing Division ), herein referred to as the Respondent
or the Company , is a Delaware corporation which
manufactures electric appliances at Moberly, Boon-
ville, Kirksville , Jefferson City, Macon, and
' The record and transcript are corrected as stipulated by the parties A
stipulation on information furnished to the General Counsel by the
Moberly Monitor-Index and Will Ben Sims, a member of the Committee to
Retain Moberly Industry , following subpena enforcement proceedings, is
received as Resp . Exh. 21. Documents furnished by Respondent after the
close of the hearing on appliance and fan statistics for its Moberly and
Kirksville plants are received as G. C. Exhs 11-E revised , 12-A revised,
and 12-B revised
1606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clarence, and maintains a warehouse in Columbia,
all in Missouri. Respondent annually sells goods
valued in excess of $50,000 to customers outside
Missouri. I find, as Respondent admits, that
Respondent is engaged in commerce within the
meaning of the Act, and that the assertion of ju-
risdiction is warranted.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 257, International Brotherhood of Electri-
cal Workers, AFL-CIO, herein referred to as the
Union, and Teamsters Local No. 833, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, herein referred to as the Teamsters, are labor
organizations within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and Issues
The Union initiated a campaign to organize the
Company's Missouri factories in March 1966.2 Pur-
suant to a representation petition filed by the Union
on May 17, the Board conducted an election at the
Moberly plant on July 8. The Union won the elec-
tion and was certified on July 18 as the exclusive
bargaining representative of the Moberly produc-
tion and maintenance workers.
The complaint in Case 17-CA-2977 alleges that
Respondent engaged in coercive antiunion conduct
at all its factories. The principal issues presented in
that case , however, are whether Respondent laid
off 120 Moberly employees on May 27, 1966, in
order to discourage support of the Union, and
whether Respondent failed to bargain in good faith
with the Union after the July 18 certification. In
Case 17-CA-3033 the principal question presented
is whether Respondent countered a Teamsters cam-
paign to organize the employees at its Columbia
warehouse by discharging two employees and caus-
ing a third employee to quit by demoting him. In
Case 17-RC-1512 the question presented is
whether Respondent engaged in conduct after the
Teamsters filed a representation petition on Oc-
tober 3 which would warrant setting aside an elec-
tion conducted on November 7 at which the
warehouse employees voted 7-2 against representa-
tion by the Teamsters.
B. The Alleged Unfair Labor Practices at Moberly
1. The May 27 layoff
The Moberly plant manufactures 20-inch
breezebox fans, mixers , blenders, electric knives,
popcorn poppers, and heaters. Although these
products are manufactured throughout the year,
the plant concentrates on fan production during the
first 6 months of the year and on production of the
other items after returning from a 2-week vacation
at the end of the fan season , which usually occurs
in late June or early July. The plant had about 300
production and maintenance employees working
two shifts when the Union initiated its organizing
campaign in April. The Union's efforts were more
successful at Moberly than at the Company's other
plants and it filed a representation petition with the
Board on May 17. An election was scheduled for
July 8.
Plant Manager Stanley Ferguson sent 16 letters
to the Moberly employees between April 19 and
July 6 urging them to reject representation by the
Union. In a letter dated May 24 Ferguson said he
had "heard that some of the employees are con-
cerned about temporary transfers and layoffs." He
explained that the Company makes "temporary
transfers when work is temporarily short on some
job and there is another place that needs help... .
That way we can give you a full week's work and
keep production going .... As to lay-offs, the
Company can't avoid them but we do try to keep
them to a minimum by manufacturing to stock
where we can."
On Friday evening , May 27, Ferguson notified
the employees on the second shift that they were
being laid off that evening because cool weather
had slowed down fan sales and the Company's
warehouses were full. The Company laid off 115
employees on May 27 and 5 more employees on
May 3 1. Except for a layoff of about 50 employees
for a 5-week period after the fan season in 1958,
the plant had not had a major layoff in some 14
years of operation.3
In a letter dated June 3 Ferguson said the Com-
pany could not guarantee its employees "a full 40
hours of work each week" and could not give them
guarantees against layoffs "when the weather turns
against us." He explained the May 27 layoff in a
letter dated June 23 as follows:
Now, I want to talk to you about the recent
layoff in this plant, In the hopes of getting hot
weather early this year, we tried to stretch our
production of fans out as long as we could.
However, hot weather did not come, our in-
ventory built up to excessive figures. As much
as we regretted it, a layoff became a necessity.
We still hope that all, or at least part, of the
laid-off employees can be called back, and if it
= All dates hereafter are in 1966 unless otherwise noted
' Several employees testified that they had worked 4-day workweeks.
Joan Powers said she had worked a 4-day workweek in 1962 and Shirley
Wolverton recalled working a 4-day workweek in April 1959 William
Sumpter said he had worked some 4-day workweeks but he could not recall
when they were Irene Harley said the assembly line employees were "off
on Friday " on one occasion because a conveyor installed for the stapling of
boxes was "slow " and the packing and stapling employees fell behind in
their work.
MCGRAW-EDISON COMPANY
is possible to call them back, it will be done on
a seniority basis.
About this time, the weather turned hot and the
Company received orders for approximately
170,000 20-inch fans between June 27 and July 9, a
sufficient number to exhaust its inventory and
require additional production of fans. In previous
years, the Company ran fans at Moberly until the
end of the fan season. This time, however, the
Moberly plant went on vacation for 2 weeks im-
mediately after the Board election on July 8 and
the production of 20-inch fans was shifted to the
Kirksville plant, which returned from vacation on
July 5.' Fan parts were shipped from Moberly and
other plants to Kirksville, which had produced only
1,184 20-inchfans in May and none in June
whereas Moberly had produced 66,754 in May and
27,552 in June.
Kirksville's production schedule resembles
Moberly's in that it concentrates on the manufac-
ture of 20-inch and smaller fans during the first 6
calendar months of the year and produces other
electrical products-hotplates and heaters-after
its summer vacation . In 1966 it discontinued manu-
facture of 20-inch fans in April and manufactured
hotplates and heaters in May and June before going
on vacation. Kirksville manufactured about
160,000 20-inch fans during July-December 1966
compared to about 16,000 fans for the same 6-
month period in 1965. It also produced hotplates
and heaters during this 6-month period in quantities
comparable to 1965. It hired additional employees
to handle its increased production load.'
Moberly's production of 20-inch fans for the
second half of 1966 was about the same as in
1965.6 Its production of other items dropped about
30 percent in August and September.' About 25
laid-off employees were recalled to work in August,
60 in September , and the remainder in October.
The May 27 layoff occurred shortly after the
Union 's filing of a representation petition and,
despite its unprecedented size , was effected without
During the second week of the Moberly vacation , employee Tom
Jones, while taking inventory , asked Adrian Downing , his supervisor, "Do
you think we will run fans as soon as inventory is over" Downing said,
"What do you think" Jones replied , " I don't see why we don't, we have
got a hundred and some laid off " Downing said, "You can think what you
want , but we have given 60,000 to Kirksville to run " Jones asked, "How
come" and Downing answered, "What do you think " As this conversa-
tion occurred within 2 weeks of the Board election , I find that Downing's
remarks implied that the Company had transferred fan production to Kirk-
sville in reprisal against the Moberly employees for selecting the Union as
their bargaining representative , and hence that they were violative of Sec-
tion 8(a)(I) of the Act.
Martha Kern was told to start her 1-week vacation on July 1 I and to
return on July 18 for inventory work She was informed on July 18 that she
was laid off until August 1 . The complaint alleges that the delay in recalling
Kern was discriminatory Plant Manager Ferguson explained that women
are not ordinarily used on inventory work and that the plant does not or-
dinarily start up at full production after the vacation period Kern was only
I of 19 employees laid off on July 18 1 find that Kern was not discrimina-
torily denied employment between July 18 and August I
S Kirksville hired 118 employees and terminated 73 employees during
the period July-December 1966
1607
advance notice. The Company in the past had
avoided or mitigated layoffs , at least on a few occa-
sions , by putting employees on 4-day workweeks 8
and Plant Manager Ferguson pointed out to the em-
ployees in his letter of May 24 that the Company
tried to keep layoffs " to a minimum by manufactur-
ing to stock." As the June production of fans at
Moberly was about 40 percent of May production
(27,552 to 66,754), a 4-day workweek would have
saved an appreciable number of employees from
layoff. As the Company was manufacturing knives,
mixers, and blenders on May 27, it would seem that
it could also have reduced the number of em-
ployees to be laid off by increasing production of
these items. Indeed, at Kirksville-where the Union
had not succeeded in signing up enough employees
for an elections-the Company avoided a layoff by
starting major production of hotplates and heaters
in May and June rather than after the summer va-
cation.
The Company received heavy 20-inch fan orders
in the 2-week period before the July 8 election at
Moberly, but contrary to its normal practice of
postponing vacation time at Moberly until the close
of the fan season, shut the plant down for 2 weeks
immediately after the election and shifted 20-inch
fan production to Kirksville, which thereafter in-
creased its work force while many Moberly em-
ployees remained on layoff.
The Company's explanation for the May 27
layoff, and the failure to recall the laid-off em-
ployees when heavy fan orders came in, may be
summarized as follows: High inventory and reduced
orders required it to cut back production of 20-inch
fans at both Moberly and Kirksville. It assigned 20-
inch fan production to Kirksville when heavy orders
came in the last week in June and the first week in
July "to meet the immediate demand while
Moberly was on vacation." It increased 20-inch fan
production at Kirksville rather than at Moberly
because " once [Kirksville ] had started on the
production of fans, it would have been expensive to
6/ The production of 20" fans at Moberly and Kirksville for July-
December 1965 and 1966 was as follows
Kirksville
July August September October November December
1965 13594 0 0 0 0 2173
1966 5902 26702 30513 35070 32579 36541
Moberly
1965 32784 14977 21432 17185 22646 21056
1966 14622 21719 16252 11602 17177 23848
The Company ascribed this drop to material shortages and other
production difficulties
" The testimony of several employees to this effect is uncontradicted.
9 The Board will not entertain a representation petition if not supported
by a showing that at least 30 percent of the employees in the bargaining
unit have authorized the petitioner to act as their collective-bargaining
representative
1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
switch it back to some other production, such as
heaters." There was no point in "switching Moberly
back to fan production when it returned from vaca-
tion on July 25" because it "would have supplied
no immediate demand for fans ... and would only
have delayed appliance production." The delay in
recalling the laid-off employees was caused by part
shortages and other production difficulties.
The Company's explanation ignores its failure to
take steps to avoid or reduce the layoff at Moberly
by cutting hours or rescheduling production, as it
did at Kirksville; it ignores the fact that the com-
pany's normal practice was to delay vacation time
at Moberly (its principal producer of 20-inch fans)
until the end of the fan season;10 and it also ignores
the fact that 20-inch fan production was added to,
and not substituted for, other production at Kirk-
sville . The Company asserts but does not explain
why recalling the laid-off employees for fan produc-
tion after Moberly returned from vacation would
have delayed production of other appliances. I see
no reason why the Company could not have re-
called them to 20-inch fan production, if necessary
on a second shift, and, as production of other items
was resumed or increased, assigned them to work
on those items.
I conclude under all the circumstances- includ-
ing the Company's opposition to unionization of its
plants, the timing of the May 27 layoff shortly after
the Union's filing of a representation petition, the
abrupt manner in which it was put into effect, the
Company's failure to make any effort to avoid the
layoff at Kirksville, or to mitigate its severity, and
the Company's unconvincing explanation for assign-
ing and increasing fan production at Kirksville
rather than at Moberly-that the Company laid off
the night-shift employees on May 27 and thereafter
delayed their recall in order to discourage its em-
ployees from supporting the Union. I conclude that
the May 27 layoff was violative of Section 8(a)(3)
and (1) of the Act.
2. The refusal to bargain
Pursuant to the election held on July 8, the
Union was certified on July 18 as the collective-
bargaining representative of the production and
maintenance employees at the Moberly plant. The
parties met nine times between August 3 and
November 4 but did not reach agreement on a con-
tract. Negotiations were recessed on the latter date
pending the outcome of the present unfair labor
practice proceedings. The General Counsel con-
tends that the Company breached its bargaining
obligation under Section 8(a)(5) of the Act by
changing incentive wage rates, by increasing the
performance of rank-and-file work by supervisors,
and by refusing the Union's request for its own
10 It may reasonably be supposed that the laid-off employees would have
been glad to forego further "vacation."
11 In Tex-Tan, Inc , 134 NLRB 253, the employer in effect maintained
timestudy of incentive wage operations. The
General Counsel further contends that the Com-
pany failed to bargain in good faith on certain
union proposals and that it engaged in other con-
duct calculated to frustrate agreement on a
meaningful contract.
a. Unilateral changes and timestudies
(1) Incentive wage rates: Between August 15 and
November 7 the Company increased 10, decreased
4, and discontinued 3 incentive rates , pending new
timestudies, all without notice to the Union. The
Company also discontinued the incentive rate on a
cutoff saw operated by Robert James until a
production difficulty was eliminated. James
received his base rate until the incentive rate was
restored. Plant Manager Ferguson testified that
base rates are set and changed with the object of
having the employees earn about 30 percent above
the base rate, and that they are also changed when-
ever the material or the method on a job is
changed.
The changes made in base rates increased or
decreased employees' earnings . Where incentive
rates were discontinued, the employees lost money
because it appears ( as in James' case ) that they
were paid the base rate rather than the average of
their earnings under the incentive system." As the
incentive rate changes made by the Company in-
creased or decreased employee earnings, I con-
clude that the Company violated Section 8(a)(5) of
the Act by failing to advise the Union about
proposed changes and to afford it an opportunity to
bargain about them.
(2) Performance of production work by super-
visors: Upon laying off the night shift on May 27
the Company transferred the night-shift foremen
and working supervisors to the day shift and as-
signed more production work to some of them.
They continued to perform such rank-and-file work
following the Union's certification on July 18 and,
to some extent, after the recall of the laid-off em-
ployees. As this evidence does not establish that the
Company's assignment of rank-and-file work to su-
pervisors after July 18 represented a change in pol-
icy which materially reduced the work opportuni-
ties of employees in the bargaining unit, I find that
the Company did not violate Section 8(a)(5) of the
Act by its assignment of production work to super-
visors.
(3) The request for a union timestudy: At a
negotiation session on October 19 the Union
requested that its timestudy expert, Tom Hickman,
be given access to the plant to study jobs. After the
Company had its timestudy man explain its time
and incentive rates , the Union again requested per-
mission to make its own timestudies "for negotia-
wages by basing pay on average earnings pending timestudies on changed
jobs. The Company's reliance on this case to justify its unilateral actions on
incentive wage rates is therefore misplaced
MCGRAW-EDISON COMPANY
tions and future purposes ." The Company denied
the Union 's request . As the timestudies which the
Union wanted to make were relevant to the Union's
"intelligent performance of its function ," and as the
Company has not shown that the Union's request
was improper or would have imposed an un-
reasonable burden on it, I find that the Company
violated Section 8(a)(5) and (1) of the Act by
refusing to permit the Union access to the plant to
perform timestudies . Cf. The Fafnir Bearing Com-
pany, 146 NLRB 1582, 1585, enfd. 362 F.2d 716
(C.A. 2.)
b. Refusal to bargain in good faith
(1) Rejection of union proposals: Throughout the
bargaining negotiations the Union requested a
checkoff of union dues, a union shop, and a limita-
tion on production work by supervisors. The Com-
pany refused to check off dues on the ground that it
was the Union's business and not the Company's to
collect dues; it said "no" to a union shop but that it
would discuss the subject; and it refused to change
its practice of assigning production work to super-
visors.
Citing Farmers Co-Operative Gin Association, 161
NLRB 887, the General Counsel argues that, as the
Company makes voluntary payroll deductions for
United States savings bonds, its savings plan, and
profit sharing, its refusal to check off union dues
was motivated solely by antiunion considerations
and demonstrated its intention to frustrate agree-
ment on a meaningful contract. Farmers Coopera-
tive is distinguishable on its facts for the employer
in that case made payroll deductions in payment of
employee loans from banks and car dealers. As the
Company makes no comparable deductions for
private parties, and as the Union failed to pursue its
proposal for a dues checkoff beyond a series of
identical requests, 12 I see no basis for a finding that
the Company's reason for refusing to check off
union dues-that collection of dues was the Union's
business-was advanced in bad faith. Cf. McLane
Company, 166 NLRB 1036.
The Company advised employees before the July
8 election to the effect that it would never agree to
a union shop, and, on August 26, Plant Manager
Ferguson posted a notice, stating in part: "The
Company believes that each employee should make
his own decision about union membership and,
although we have listened to Union arguments
against that principle, we have heard nothing that
would cause us to change our minds." The General
Counsel argues that the Company by such state-
ments to the employees "consciously placed itself
in a position where it could not give unfettered con-
1R Cf H K Porter Company, Inc , 153 NLRB 1370, enfd 363 F 2d 272
(C A D C ), cert denied 385 U.S 851
13 I find, in agreement with the General Counsel , that this announcement
of increased hospitalization benefits at all the Missouri plants except
Moberly, considered in light of its timing and the Company 's preelection
1609
sideration" to the Union's proposal for a union
shop. The Company made no statements to em-
ployees after August 26 indicating that its repeated
offers to the Union after that date to discuss union
security were not made in good faith. The Union
made no effort to test the Company's good faith by
initiating such discussions. I find that the Company
did not refuse to bargain in good faith over a union
shop.
The General Counsel contends that the Company
showed its bad faith on the Union's request for a
clause prohibiting the performance of production
work by supervisors, by taking the arbitrary posi-
tion that its supervisors would do production work
whenever the Company "saw fit." I credit Attorney
Kuelthau's testimony that the Company's stated
position on this subject was that it was entitled to
assign production work to supervisors to keep them
busy when they "weren't busy supervising." As the
record shows that the Company's supervisors were
assigned production work even before the May 27
layoff, I see no indication of bad-faith bargaining in
the Company's statements that it intended to con-
tinue this practice.
(2) Increased benefits at the nonunion plants: In
several letters to the Moberly employees before the
July 8 election, Plant Manager Ferguson reminded
them that the Company voluntarily granted and
paid for such employee benefits as hospital and life
insurance, vacations, and holidays. By letter dated
July 9 President J. R. McDermott urged the em-
ployees at the Company's other plants not to be
stampeded into joining the Union because of its
election victory at Moberly but rather to "wait and
see" what happened at Moberly. On July 14 the
Company increased hospitalization benefits at Kirk-
sville, Macon, Clarence, Columbia, Boonville, and
Jefferson City. In a letter announcing the increase
in benefits, President McDermott explained that it
had not been given to the Moberly employees
because they had "elected to have the I.B.E.W.
Union represent them [and] we no longer can deal
directly with them in matters of this type. 1113 During
September, the Company increased life insurance
coverage, vacation benefits, and the number of paid
holidays at the plants other than Moberly. It ad-
vised the Union that it was willing to include these
benefits in a final contract. Following the suspen-
sion of bargaining negotiations on November 4, the
Company increased starting wage rates at its other
plants. The Company included these increased
wage rates in a proposed contract sent to the Union
in December.
While the timing and manner in which the Com-
pany put increased benefits into effect at its unor-
ganized plants served to underline the Company's
statements that only it and not the Union could increase hospitalization
benefits, was violative of Section 8(a)(1) of the Act in that it was calcu-
lated to impress upon the Company's employees that the Moberly plant
was not receiving the increased benefits in reprisal for going union
354-126 O-LT - 73 - pt. 2 - 30
1610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
position that its employees did not need a Union to
obtain wage increases and other benefits, it does
not follow, as the General Counsel contends, that
the Company evinced bad faith at the Moberly
negotiations by withholding these benefits from the
Moberly employees until a contract could be
agreed upon. The Company's conduct to be sure
had the effect of putting pressure on the Union to
accept its contract proposals, but such pressure is
not of itself unlawful. I have found that the Com-
pany did not refuse to bargain in good faith over
union proposals on checkoff, union security, and a
supervisory work clause, and it is not contended
that the Company's own contract proposals warrant
an inference of bad-faith bargaining. I find that the
Company did not bargain in bad faith by granting
benefits to its unorganized employees during the
Moberly negotiations and withholding these
benefits from the Moberly employees pending con-
summation of a contract.
In sum, I find that the Company violated Section
8(a)(5) of the Act by unilaterally changing incen-
tive wage rates and by refusing to permit the Union
to make its own timestudies of incentive rated jobs.
I do not find that the Company engaged in overall
bad-faith bargaining calculated to frustrate agree-
ment upon a meaningful contract.
3. Interference, restraint, and coercion
a. Supervisory conduct
(1) Clyde Burris: Russel Taylor, a punch press
operator on the night shift before the May 27
layoff, testified that Clyde Burris, his supervisor,
came over to his press before the layoff and said,
"People don't know enough to leave well enough
alone." Burris added that "quite a few" union cards
had been sent in and that if the Union got enough
cards "to get in . . we will all be out of work, in-
cluding me. I think the Company will move out."
Although Burris and Taylor were friendly, Burris'
remarks conveyed a clear threat that the Company
would move the plant if the Union organized it and
therefore were violative of Section 8(a)(I) of the
Act.
(2) Bob Eaton Johnston: During the week before
the July 8 election, Joan Powers, an assembler,
walked into the repair shop wearing a union pin.
Assembly Foreman Johnston said, "Oh, so you
have done it now. Get behind me, that thing hurts
my eyes." Johnston did not order Powers to remove
the pin and his remarks expressed his union an-
tipathy but contained no threat of reprisal. I find
contrary to the General Counsel's contention that
Johnston's conduct on this occasion did not con-
stitute unwarranted interference with the em-
ployees' right to wear union pins.
I find, however, that Johnston unlawfully
threatened employees with economic reprisals for
their union activity by telling Powers, Martha Kern,
and Mona Neal, a day or so before the election, to
"think twice about wearing ... union pins" because
"things might be a lot different" after the election
even though "he wasn't saying the plant would shut
down." Although Powers had jokingly asked him
where his union pin was, Johnston's reply was not
such as to be taken in jest.
On the day of the election, Johnston admitted to
assembler Shirley Wolverton that he had asked
Wolverton's daughter how her mother was going to
vote at the election. I find that Johnston's admis-
sion to Wolverton that he had inquired into her vot-
ing intention was violative of Section 8(a)(1) of the
Act.
Johnston admitted that he threatened employee
Bob Ruder, in the presence of other employees,
with a punch in the nose if Ruder made a statement
against him. Although not so alleged in the com-
plaint, Johnston's threat was clearly violative of
Section 8(a)(1) of the Act and I so find.
(3) Donald Spicer: About a week before the May
27 layoff of the night shift, Bill Branham , a welder,
told his supervisor, Donald Spicer, that he was 100
percent for the Union and would do everything he
could to help the Union in. Spicer said he thought
the Company might move out if the Union got in
and Branham would not have a job.t" Although ex-
pressed as his personal opinion, Spicer's remarks
constituted a threat of economic reprisal and hence
were violative of Section 8(a)(1) of the Act. Mon-
roe Auto Equipment Company, 146 NLRB 1267,
1275, fn. 23.
(4) Dale Miller: Joan Powers testified that Dale
Miller, a timekeeper, told her to be careful how she
voted at the election because they needed their jobs
and that Plant Manager Ferguson would never sign
a contract. Miller's primary relationship with the
production employees is to point out errors in their
time slips and have them correct the slips. I find
that Miller is neither a supervisory nor a managerial
employee and that his remarks to Powers are not
attributable to the Company.
(5) Willard Spotts: The last week in June, Super-
visor Willard Spotts asked riveter Mary Jane
Buckler what she would be making a year from now
if the Union won the election. She said, "Probably
about the same as I am now." He then asked what
she would "be doing a year from now" if the Union
lost the election. She replied, "I will probably be
drawing my unemployment." Spotts said she could
not draw unemployment compensation for more
than 6 months. They argued about this and Spotts
said he would find out. Spotts made a telephone
call and about 20 minutes later told Buckler she
could "only draw unemployment for 6 months." I
" Harold Searcy , a welder, testified that he heard Spicer tell Branham
that , if the Union won the election , the Company would close the plant
"much like they did in Fostoria, Ohio "
MCGRAW-EDISON COMPANY 1611
infer from this conversation that Spotts knew
Buckler was a union supporter, that Buckler's re-
mark about "drawing my unemployment" a year
later indicated her belief that she would be
discharged for supporting the Union if the Union
lost the election, and that Spotts' emphasis on the
fact that she could not draw compensation for more
than 6 months implied that her fear of discharge
after the election was well founded. I therefore find
that Spotts' remarks to Buckler violated Section
8(a)(1).
(6) Carl McKee: About a week before the July 8
election, plant Superintendent Carl McKee told
repairman Preston Buckler that if the Union got in,
it would "probably be hard" for Buckler to get a
job at this age "if something happened." McKee
added that he wished he had waited to build his
new house. As McKee's statements to Buckler im-
plied that a union victory might result in a company
decision to move, I find them violative of Section
8(a)(1) of the Act.
"Just before the election," McKee told Carl
Swanson, a physically impaired employee, that if
the plant "goes union," the Company would want
its employees to pass a physical examination and
that Swanson might find it hard to get a job at his
age. I find that McKee's remarks violated Section
8(a)(1) as they constituted a threat that the Com-
pany would increase its physical standards for em-
ployment in the event of a union victory.
(7) Harley Vasper: Before the election, Super-
visor Harley vasper told employee Juanita Attebu-
ry, who was wearing a union pin, to be careful how
she voted because the vote could hurt herself and
others. He added,"Look, at our age it would be
hard for us to get a job." Vasper's remarks implied
that the Company might close the plant if the
Union won the election and hence were violative of
Section 8(a)(1) of the Act.
(8) Stanley Ferguson: A few days before the
election, employee Diana Robb asked Bill Sander-
son, manager of the Moberly Chamber of Com-
merce , to take her to see Plant Manager Ferguson.
Sanderson did so. Robb asked Ferguson about the
Union and Ferguson said that it would not do the
plant or the Union any good to come in, that he
was following orders, that if the plant moved out
the Company had a place to move it, but that he
would have a lower job.15 As Ferguson's remarks
indicated that top management was considering
moving the plant if the Union won the election, I
find them coercive within the meaning of Section
8(a)(1) of the Act.
(9) William Wybert: Supervisor Wybert asked
James Hunt, a laid-off employee, how he was going
to vote at the election. Hunt said he was going to
vote for the Union. Wybert attempted to persuade
Hunt "out of it," saying in part, that the Company
would either "pull up and run" or "cut production
until it would have to close." Wybert's remarks
were clearly violative of Section 8(a)(1) of the act.
After the election, and the day after a union
meeting, Wybert asked Buela Burton if she had
paid her "three-sixty last night. 1116 Burton said she
was "still free" and "They are just asking for trou-
ble." Wybert replied, "They don't know how much
trouble." Although Burton and Wybert were per-
haps of one mind about the Union, Wybert's com-
ment implied that the Company would visit
economic reprisals upon union supporters and
hence was violative of Section 8(a)(1) of the Act.
(10) Alvin Roberts- Just before the election,
welder Twana Winkler asked Supervisor Alvin
Roberts if he had his suitcase packed. Roberts an-
swered "no," the plant would not have to move
because "they could starve us out and start up with
all new faces." I do not credit Roberts' testimony
that he and Winkler were only discussing the
economic consequence of a strike and find that his
remark implied that the Company would take steps
to get rid of union supporters and hence was viola-
tive of Section 8(a)(1) of the Act.
b. The chamber of commerce letter
In June, Manager Sanderson of the Moberly
Chamber of Commerce told Plant Manager Fer-
guson that he intended to send the employees a
letter about the Union and subsequently supplied
Ferguson with a copy of the following letter under a
chamber of commerce letterhead:
TO: ALL McGRAW -EDISON EMPLOYEES
MOBERLY , MISSOURI
A STATEMENT ABOUT OUR INDUSTRIAL
FUTT IRE
One of the most important community activi-
ties that affects all people in this area is our
ability to create new job opportunities via
means of industrialization. We cannot continue
to progress unless we continue to provide addi-
tional job opportunities.
The benefits of previous industrial success are
here for all to see. Never before has our area
known such a real atmosphere of progress in
the form of new and improved jobs, rising con-
struction, and retail trade.
Your employer, McGraw-Edison, by locating
in Moberly almost 14 years ago, started our
upward trend in industrialization. The constant
growth and expansion of the plant have been
an indication to others that a favorable labor
" I do not credit Robb's testimony that Ferguson expressly stated that
the plant would be shut down if the Union came in
1e Union dues are $3 60 a month
1612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
climate is in existence, and has helped pave the
way for new industry to come to Moberly.
When your Chamber of Commerce was work-
ing to sell Moberly's location advantages to
DuPont, it became necessary for us to prove
that our labor force was of a high quality, sta-
ble, and dependable. McGraw-Edison manage-
ment made it possible for DuPont officials to
tour your plant, and to see you in action. Your
production and attitude, combined with other
assistance from your management staff,
became a primary factor in the DuPont deci-
sion to eventually locate a plant here. DuPont
was impressed that McGraw-Edison came to
Moberly to escape labor disruptions and a pro-
longed strike in Fostoria, Ohio.
Experience tells us that disruptions in the labor
field within a community complicate small
town industrial development and sometimes
bring it to a halt. There are many instances just
like Fostoria, where an unfavorable labor situa-
tion has resulted in industrial job opportunity
deterioration. It has taken several years for our
community history to dilute the factors in-
volved in the loss of Brown Shoe, but industrial
prospects still question us about that develop-
ment.
Thus far, we have been able to aggressively
represent our town to industry with good suc-
cess. We sincerely believe that our greatest
period of success is still ahead - providing we
can retain a salable community. Our labor
force can be highly commended for the impor-
tant contribution it has made to community
progress.
We would urge those involved in the field of
labor relations to please weigh the full con-
sequences, including the impact on community
development, before making future decisions.
Let us continue to work together for a better
community future!
Thanks for your interest!
Bill Sanderson, Manager
Having heard nothing from Ferguson about the
letter, Sanderson sent copies of the letter on June
13 to the Moberly employees. He subsequently
took employee Diana Robb, who had complained
to him about the letter, to see Ferguson." At San-
derson's behest, Ferguson said he "never had a
thing to do with the letter" but, as found above, in-
dicated to Robb that the Company might move
away from Moberly if the Union won the Board
election.
The principal message conveyed by the letter is
that "labor disruptions" at the Company's plant,
such as the "prolonged strike" which caused the
Company to move from Fostoria to Moberly, would
discourage "new employers" from coming to
Moberly, and that the employees should "weigh the
full consequences ... before making future deci-
sions." The General Counsel argues that the
references in the letter to the Company's moving
from Fostoria and the "unfavorable labor situation"
which resulted in "job opportunity deterioration"
at Fostoria, considered in the light of the May 27
layoff and supervisory threats that the plant would
close if the Union got in, constituted a "trans-
parent" threat to the employees that their union ac-
tivities might result in the Company's moving out of
Moberly. I find that the Fostoria references were
calculated to instill fear in the employees that the
Company would move from Moberly, as it had
from Fostoria, if they voted for the Union at the
Board election.
The record shows that Ferguson had advance in-
formation about the letter and its contents, and that
he told employee Robb, during a conversation
prompted by the letter and in the presence of San-
derson, that he thought the Company might move
away if the plant went union. In these circum-
stances, and as the letter itself indicated that the
Company and the chamber shared the same con-
cern over "labor disruptions," I find that the Com-
pany had an obligation to disavow the coercive
aspects of the letter, and that by failing to do so it
adopted the letter as its own and thereby violated
Section 8(a)(I) of the Act. Cf. Henry I. Siegel, Inc.,
165 NLRB 493.
c. The newspaper advertisements of the Committee
To Retain Moberly Industry
Full-page advertisements reciting that they were
paid for by a "Committee to Retain Moberly Indus-
try" appeared in the Moberly Monitor -Index on
July 5 and 7. Both advertisements implied that the
Company might leave Moberly if the employees
voted for the Union at the July 8 election . Thus, the
July 5 advertisement read in part:
Past history has proved that Moberly has been
most unfortunate in losing industries following
labor problems . Our committee is concerned
about keeping our good employers in Moberly,
and getting new ones if possible . If we lost Mc-
Graw-Edison , what will we have left?
We hope that those engaged in the present
election of McGraw-Edison , will vote for con-
tinued employment, and the best interest of
Moberly.
The advertisement closed by asking whether his-
" Sanderson told Robb, and also employee Irene Harley, that he had
spoken to Ferguson and Company President McDermott about the union
campaign
MCGRAW-EDISON COMPANY 1613
tory would repeat itself and the Moberly citizens
again be subjected to the loss of employment and
its consequences "as the result of losing a large
payroll.... The answer lies in the hands of those
involved in the present McGraw-Edison election.
Let us hope that their decision is wise , and that in-
dustrial peace will continue in Moberly."
The July 7 advertisement was headed "Why
Make Moberly A Test Case" and stated in part,
"The question of basic concern to all people in the
Moberly area is whether the McGraw-Edison Com-
pany here will be closed or its production curtailed
if a majority of the employees vote for the Union
this Friday.... We are convinced that the first
plant to vote union will not be viewed with favor by
the Company. It would be only natural for them to
make an example of the plant to keep others from
doing the same thing.... Why not adopt a `Wait
and See' policy? You can vote `No' and let the
other towns, that can better afford to lose industry,
take the chance."
The July 7 advertisement included the following
postscript:
P.S. Since writing the above two days ago, the
committee has called on a large number of Mc-
Graw-Edison employees and frankly and in
confidence discussed their feelings with them.
The major indication of dissatisfaction was
based on personality conflicts between some
supervisors and some employees. We have
contracted [sic] top management and they
have indicated the basis for these conflicts
would be checked into at once. We believe a
real effort will be made to eliminate these con-
flicts. Again we urge a "wait and see" action.
With reference to the postscript, Company Pre-
sident McDermott testified that he received a call
from Will Ben Sims who told him that he had found
that one problem at the Moberly plant seemed to
be "some conflict" between the employees and
their supervisors and foreman, that a "group of
people" were going to run an ad and that "they
would put a paragraph in the ad stating that they
had talked to a company spokesman and that the
company spokesman said he would check into the
matter and do what he could." Plant Manager Fer-
guson testified that he saw the July 5 and 7 adver-
tisements on the days they were published.
The postscript to the July 7 advertisement in-
dicated a close relationship between "top manage-
ment" and the persons composing the Committee
To Retain Moberly Industry. The theme of "plant
removal" in both advertisements echoed similar
threats by Moberly officials, foremen, and super-
visors. Moberly employees would reasonably be-
lieve that the Committee spoke for the Company in
its advertisements. As the Company was aware of
the advertisements, I find that the Company was
under an obligation to disavow the Committee's
coercive appeal to the employees and that by its
failure to do so it adopted and ratified the appeal
and thereby violated Section 8(a)(1) of the Act.
Henry I. Siegel, Inc., 165 NLRB 493.
d. Eleanor McKee
Employee Eleanor McKee, the wife of Plant Su-
perintendent Carl McKee, told fellow employees
that the Company would close the plant and move
from Moberly if the Union won the election. While
employees would reasonably infer that Mrs.
McKee's remarks were based on information
received from her husband, the record evidence
does not warrant an inference that Mr. McKee or
any other company official was aware of them. I
conclude therefore that her remarks are not
properly attributable to the Company.1e
C. The Alleged Unfair Labor Practices at Kirksville
Several Kirksville employees testified to state-
ments they allegedly heard Plant Manager Floyd
Winter make over the public address system in the
plant. Lafayette Hocker testified that Winter said
during the summer of 1966 that "the people was
dumb at Moberly and couldn't think for them-
selves" and that "the people in Kirksville' [should]
wait and see what happened in Moberly." Lucille
Hocker testified that Winter said the Moberly em-
ployees were "dumb and ... needed somebody to
think for ... them and ... would be sorry."
Dolores Elam testified that Winter said "Moberly
had went union and was shut down." Donald
Flanagan testified that Winter said "anybody who
would join the union was stupid, that the employees
should think for themselves, that the Moberly plant
had went union after the election and there had
been a cutback and those people were stupid for
joining the union." Jimmy Hanlin testified that
Winter told the employees late in June that "if the
plant went union we would have to pay union dues
and we would have to pay for our own insurance
and we would lose our profit sharing plan." Winter
testified that he read prepared statements to the
employees on April 22, May 27, June 15, and July
25, but denied telling the employees that they
should "wait and see what happened at Moberly,"
or that they would lose their profit sharing and pay
for their own insurance if the Union came in, or
that "Moberly had voted union and was closed
down."19
I consider it unlikely that Winter would have
i9 Hill-Behan Lumber Company, 162 NLRB 745, cited by the General
Counsel, is distinguishable on its facts , for the statements in that case were
made by an employee who, in addition to being the father of a highly
placed company official, had himself been the former manager of the store
where the unfair labor practices occurred
19 Winter's secretary , Joan Brandenburg , testified that Winter did not
deviate from the prepared texts of his four talks over the public address
system
1614 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
said-contrary to fact-that the Moberly plant was
"shut down" and therefore do not credit Elam's
above-uncorroborated testimony. Flanagan did not
impress me as a reliable witness and I therefore do
not accept his uncorroborated testimony to the ef-
fect that Winter said there had been a cutback at
Moberly because it "went union." As Hanlin's
testimony that Winter said the employees would
lose insurance and profit-sharing benefits if the
plant was unionized is also uncorroborated, I con-
sider it more likely that his testimony reflects Han-
ltn's interpretation of what Winter said rather than
what Winter actually said about these matters. As I
see no coercion in the other statements attributed
to Winter, I find that Winter's talks to the em-
ployees over the plant public address system were
not violative of Section 8(a)(1) of the Act.
I find, however, that Winter violated Section
8(a)(1) of the act by asking Charlotte Ann Orek
during a hiring interview in July whether she was
for or against the Union. Orek said it did not matter
to her. Although Winter denied Orek's testimony in
this respect, I believe Orek had the better recollec-
tion and credit her version of the hiring interview.
D. The Alleged Unfair Labor Practices at Jefferson
City
1. The refusal to hire James and Branham
Robert James and Bill Branham , who had been
laid off at Moberly on May 27, filled out applica-
tions for work on July 13 at the Company's Jeffer-
son City plant and turned them over to the recep-
tionist. She advised them after returning from the
office of Personnel Manager Gensky that jobs were
not then available for them but that the Company
would get in touch with them when it started to hire
again . James and Branham heard nothing further
about their applications.
James' application for employment showed that
he lived in Paris, Missouri; that he had worked at
the Moberly plant since 1958 and had been laid off;
that he had earned about $6,000 annually; that he
had experience as a punch press operator and a su-
pervisor; and that he would take any job on any
shift with salary open. Branham's similar applica-
tion showed that he lived in Moberly, that he had
earned $3 an hour as a welder at the Moberly plant,
that he had experience as a welder, punch press
operator, lathe operator, and drill press operator,
and that he would accept any job on any shift with
salary open.
Kenneth Laughlin applied for work at the Jeffer-
son City plant on July 13. He was interviewed by
Personnel Manager Gensky on July 14, hired on
July 15, and began work on July 18 as a die-cast
operator at an incentive rate of $1.45 an hour. Ar-
"The Company's failure to hire Branham and James at Jefferson City
and another laid-off employee, Henry Berrey, at Macon and Clarence (not
alleged as a violation ), does not warrant an inference that the Company
nold Trowbridge applied for work on July 15 and
began work on July 19 as a machine operator in the
machine shop at $1.45 an hour. Kenneth Vaughan
applied for work on July 18, and began work on
July 20 as an assembly line operator at an incentive
rate of $1.40 an hour. Virginia Roark, Forrest Gil-
more, David Hafley, and Clarence Monroe applied
for work at the end of July and started work a few
days later at incentive rates of $1.40 or $1.45 an
hour. Roark was employed as a packer, Gilmore as
a hobbing machine operator, Hafley as a sanding
machine operator, and Monroe as a die-cast opera-
tor. Trowbridge, Laughlin, and Monroe had no
prior experience on the jobs to which they were as-
signed.
Personnel Manager Henry Gensky testified that
Mrs. Smith, the receptionist, brought him James'
and Branham's applications on July 13; that he
glanced at the applications and noted that the two
men earned a "fairly substantial" amount of money
and that they lived from 70 to 90 miles away; and
that he then instructed Mrs. Smith to tell Branham
and James that their applications would be kept on
file. He further testified that he did not consider
Branham or James for the job in the machine shop
assigned to Trowbridge "because they had no
previous experience or any related experience" and
that he did not consider them qualified to work as
die-cast operators. He also testified that the Mis-
souri Division of Employment Security has an open
order to send him any person who "might be in-
terested" in work at the plant.
The General Counsel contends that James and
Branham were denied employment at Jefferson
City because the Company resented the "unioniza-
tion of Moberly" and the "prominent roles " played
by James and Branham in the Union' s organizing
campaign. The record shows that Branham in be-
half of the Union "made personal contacts and
some telephone calls and gave out the authorization
slips ," and that about a week before the May 27
layoft he told his supervisor, Donald Spicer, that he
was "100 percent" for the Union and would do
everything he could to help it get in . The record in-
dicates that Superintendent McKee's wife regarded
James and his wife as union leaders but it contains
no description of James' union activity. I do not be-
lieve it reasonable to infer from these facts that
Branham and James were such "prominent" union
leaders that the Company would single them out for
special attention.20 As Gensky knew they were laid-
off Moberly employees, subject to recall at higher
pay than the jobs available at Jefferson City, he
could reasonably believe that they were not likely
candidates for permanent employment. I consider
wholly specious, however, his assertions that their
job qualifications were inferior to those of several
applicants who were hired. Nevertheless, under all
had adopted a discriminatory policy against the employment of Moberly
employees at its other plants
MCGRAW-EDISON COMPANY 1615
the circumstances, I find that the General Counsel
has not established by a preponderance of the
evidence that Branham and James were discrimina-
torily refused employment at Jefferson City.
2. Interference, restraint, and coercion
Lawrence Boeckman, a die caster, credibly
testified that late in May or early June he asked his
supervisor, Kenneth Roods, why the plant was slow-
ing down production of fan rotors and Roods
replied that the Union was "trying to take over all
the plants," but that it was "a lot stronger" at
Moberly, and "We are slowing that place down
practically to nothing." Sometime in August, Roods
asked Boeckman what happened "at that union
meeting last night." I find that Roods' remarks to
Boeckman to the effect that the Company was
reducing production at Moberly because the em-
ployees at the plant were responding to the Union's
organizing efforts, and his request of Boeckman to
report what went on at a union meeting, were viola-
tive of Section 8(a)(1) of the Act.
Boeckman also testified that one day in August
he was in another department looking for a basket
to put his work in when Supervisor Arthur Rackers
told him to leave because he had "no business in
that department talking to his employees" and Ken
Roods "gave him them orders." Rackers' remarks
indicate that Roods had instructed him not to per-
mit Boeckman to talk to employees in his depart-
ment during working hours. The record contains no
evidence that other employees before or after this
incident were permitted to leave their work areas
during worktime to talk to other employees. I find
no merit to the General Counsel's contention that
Respondent either instituted or revived a "rule"
that employees were not to leave their work areas
"as a safeguard against Boeckman's [known] union
sentiments."
William Schlupe, a press operator, testified that
he had a conversation after the Moberly election
with his supervisor, Dean Kimsey. He remarked to
Kimsey, "If we had a union here like they got up in
Moberly things would go a little bit better for us."
Kimsey replied, "Well, I think the boys up there
made a bad decision. I think they are worse off than
we are." Kimsey's remarks are not coercive on
their face and the General Counsel has offered no
other basis for their evaluation. I find that his re-
marks constituted a protected expression of opinion
that the Union was not an answer to the employees'
problems.
E. The Alleged Unfair Labor Practices at Boonville
Linda Schilb testified that Supervisor Lester
Chrisman told employees on the clipper assembly
line before the July 8 election at Moberly that the
Moberly 'plant would close if the Union got in.
After the election , Chrisman told these employees
that the employees at Moberly had been laid off,
that they "weren 't drawing any money " and were
"still paying their union dues," and that the em-
ployees at Boonville would lose their hospitalization
and profit -sharing benefits if the Union got in at
Boonville . Joe Wallace Schilb testified that his su-
pervisor , Joe Bates , told a group of employees after
the Moberly election that " it is just a matter of time
until Moberly moves out and closes down," that
Mr. Bersted had spent a million dollars to move
[from Fostoria ] and he will move again if he has
to." I credit the foregoing testimony21 and find that
Chrisman 's and Bates' statements concerning the
closing down of Moberly and the loss of benefits at
Boonville were vioative of Section 8(a)(1) of the
Act.
F. The Alleged Unfair Labor Practices at Macon
Elmer Selby testified that he and Robert Rithcie
work together, and that after the Moberly election
Rithcie asked Plant Superintendent Yount about
union negotiations. Yount told them they "should
wait and see if [the Moberly plant] benefited by it."
He also said the Macon plant might move if it
"went union," that the Company would take the cost
of moving out of profit sharing, and that the layoff
at Moberly "could happen to us." Yount confirmed
that Rithcie asked him about bargaining negotia-
tions as he "was going by there," but denied mak-
ing statements other than that everything had to be
negotiated, including "wages, profit sharing, in-
surance and what not." I believe Selby had the
better recollection of the incident" and find that
Yount made the coercive statements attributed to
him, in violation of Section 8(a)(1) of the Act.
G. The Alleged Unfair Labor Practices at Columbia;
Objections to the Election
1. Interference, restraint, and coercion
The Company employed about 12 employees at
its Columbia warehouse in 1966. Five employees-
John Acton, Gerald Bonen, Roger Snodgrass,
Jackie Borts, and Steven Baldwin-signed Team-
sters authorization cards between September 22
and 26. The five card signers asked employee Ver-
non Dawson to tell Warehouse Manager Lon
Vaughn they had signed up with the Teamsters. On
September 28, Dawson told Vaughn five guys had
signed union cards. Vaughn asked Dawson who
they were but stopped Dawson after he named
Borts.
About this time, Vaughn asked Jackie Borts'
s' Linda Schilb impressed me as a reliable witness Joe Schilb's testimony
is uncontradicted
22 1 attach no significance to the General Counsel's failure to call Rtthcie
to testify as Yount's remarks were made in the immediate presence of Sel-
by
1616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
brother, Jacob, whether he had signed a card;
Jacob Borts said he had not. On September 29, Pre-
sident McDermott, in Vaughn's presence, asked
employee Edward O'Bryan what the trouble was
and O'Bryan said the boys wanted more money-
$2.47 an hour as paid at the Lady Baltimore
warehouse in Columbia. O'Bryan then named all
five card signers.23 Snodgrass and Baldwin were
discharged at the end of the workday.
On September 30, the Company advised the
seven employees who had not signed Teamsters
cards that they would receive wage increases, effec-
tive October 3. O'Bryan received an increase of 20
cents an hour, Dawson and Jacob Borts 15 cents an
hour, and the other four employees 10 cents an
hour.
I am convinced from the timing of the wage in-
creases, and the granting of increases only to em-
ployees who had not signed cards, that the in-
creases were granted to discourage support of the
Teamsters and hence were violative of Section
8(a)(1) of the Act. In this setting, and the dis-
criminatory discharges found below, Vaughn's in-
terrogation of Dawson and Jacob Borts about the
signing of Teamsters cards must also be deemed
coercive.
2. The discharges of Roger Snodgrass and Steven
Baldwin
The conversation on Thursday, September 29,
between O'Bryan, McDermott, and Vaughn took
place early in the morning. At 4:30 p.m., Vaughn
called Roger Snodgrass to his office and discharged
him, saying he had complaints against his work and
"wanted to keep peace in the family."24 Vaughn
told Snodgrass to send Baldwin to his office. When
Baldwin came in, Vaughn told him he "had done
good work in the past" but that he "wouldn't need
[him] any more and would have to let [him] off."
Snodgrass, a 19-year-old, started to work at the
warehouse on August 15. He worked as a truck un-
loader and checker. Vaughn received complaints
about his work from a truckline and from Jackie
Borts and O'Bryan. The complaints included sten-
ciling errors and riding around on an electric fork-
lift cart when Borts needed it. According to
Vaughn, two or three trucks had to be unloaded
because Snodgrass "had not properly checked the
orders." He said he had two conversations with
Snodgrass about his work in the 2 weeks before his
discharge. In these conversations, Vaughn said,
"We just discussed [Snodgrass' work], there was
not any warning but I told him his work had to im-
prove." Vaughn explained that he discharged
Snodgrass on September 29 because "I could see
he would never become a desirable employee. He
didn't have any interest in the work at all."
Baldwin, a boy of 17, was hired on July 6 to load
and unload trucks. Several times during July and
August, Edward O'Bryan and Gerald Borten com-
plained to Vaughn that Baldwin raced through the
warehouse on an empty forklift cart, and that he
ran into pallets and knocked down merchandise
without stopping to pick the merchandise up.25
They also complained that Baldwin got model num-
bers mixed up. About a month before his discharge,
Baldwin ran into part of the warehouse sprinkler
system and Vaughn told him that "we was going to
take him off for a while and for him to observe the
running of the forklift by the other employees and I
would put him back on."26 About 2 weeks later,
Vaughn put Baldwin back on the forklift. Although
Baldwin raced around "once in a while" after his
return to the forklift, such conduct is not uncom-
mon among the forklift operators and Vaughn said
nothing to him about his operation of the forklift in
the final 2-week period before his discharge.
Vaughn testified that Baldwin's work picked up for
a week after he was put back on the forklift, but
"he started back to where he was before. That is
when we terminated him."
Snodgrass and Baldwin were discharged without
notice, before the end of the workweek, and a few
hours after O'Bryan gave their names to President
McDermott and Warehouse Manager Vaughn as
two of the five employees who had signed union
cards. I do not credit Vaughn's testimony that his
decision to discharge Snodgrass and Baldwin was
made "the first part of the week" and that he
discharged them on Thursday because Friday was
to be spent "checking inventory" and "there wasn't
anything to do much" until checkers from Boon-
ville had checked the inventory count. Friday was a
workday and the seven employees who had not
signed cards were informed on that day that they
would receive wage increases . Although Vaughn
claimed that it was not his practice to give advance
notice of discharge, he admitted that he had given
one Leslie Harris such notice.27
Although Snodgrass and Baldwin had deficien-
cies as employees, I find under all the circum-
stances that the Company discharged them a few
hours after it learned the names of the employees
23 O'Bryan was not sure whether he volunteered the five names or
whether McDermott asked him to name the card signers Vaughn testified
that O 'Bryan volunteered the five names
24 Vaughn testified that he told Snodgrass " he just wasn 't able to do the
job I thought he should be able to do "
23 Baldwin admitted racing around on the electric cart but said that he
picked up what he knocked down Vaughn testified that Baldwin had "a lot
of difficulties" with the forklift , and that while everybody knocked
merchandise over at one time or another, "Steve wouldn 't go back and
pick them up, he would let them set and you would see evidence all over
the place " Had Baldwin's conduct been as bad as described by Vaughn, I
consider it entirely improbable that Vaughn would not have reprimanded
him and instructed him to pick up the merchandise he knocked over. The
record , however, shows no such action by Vaughn . For this reason, and as
Baldwin impressed me as a candid witness , I find he usually if not always
picked up the merchandise he knocked over.
Y8 According to Vaughn , he had told Baldwin not to operate a forklift in
the sprinkler area
27 Gerald Bonen said Hams had been given a week 's notice Vaughn
testified that he gave Harris a day's notice
MCGRAW-EDISON COMPANY 1617
who had signed Teamsters cards, not for their work
deficiences, but in order to discourage support of
the Teamsters, thereby violating Section 8(a)(3)
and (1) of the Act.
3. The constructive discharge of Jackie Borts
Jackie Borts worked at the Columbia warehouse
about 2 years. He unloaded trucks for a year and
then became an order filler. About a week or two
after the discharge of Snodgrass and Baldwin,
Vaughn transferred him back to unloading trucks.
Borts expressed his dissatisfaction at the transfer,
but Vaughn told him that he had to go back to un-
loading trucks because the Company needed an ex-
perienced man for that work. Floyd Tempel, who
had been unloading trucks for about 6 months,
took Borts' place as an order filler. About this time,
Borts told some employees that he would quit if the
Teamsters lost the Board election scheduled for
November 7 at the warehouse.28 The Teamsters lost
the election by a vote of 7 to 2 and Borts quit,
telling Vaughn that he did not want to unload
trucks the rest of his life.
Gerald Bonen testified that Borts was put back
on truck unloading after he told Vaughn he needed
an experienced man to help him out.29 Although
Borts preferred order filling to truck unloading, it
would seem that his stated intention to quit if the
Union lost the election was not related to his reas-
signment to truck unloading, for he could not recall
whether he informed other employees of his inten-
tion before or after the reassignment . Truck un-
loading is harder physical work than order filling
but both jobs entail moving and lifting merchan-
dise. Order fillers and truck unloaders have similar
conditions of employment and Borts' pay was not
affected by his reassignment to truck unloader. In
these circumstances, I find no merit to the General
Counsel's contention that Borts was put back on
truck unloading in reprisal for his union activity
and that he quit the Company because he properly
considered the reassignment to be a demotion.
4. Objections to the Election
The Teamsters filed objections to the November
7 election, alleging that the Company prevented
fair election by changing job classifications and b
giving wage increases . The only raises given after
the Teamsters filed a representation petition on Oc-
tober 3 were automatic 5-cent increases to Oscar
and Floyd Tempel on October 17 and 19, and I
have found that Borts was not discriminatorily put
back on truck unloading. No other evidence was
presented in support of the objections. I therefore
conclude that the Company did not interfere with
the election and shall recommend that the Team-
sters objection to the election be overruled and the
election results certified.
IV. CONCLUSIONS OF LAW
1. The Company interfered with, restrained, and
coerced its employees at its Missouri facilities, in
violation of Section 8(a)(1) of the Act.
2. The Company violated Section 8(a)(3) and
(1) of the Act by discriminatorily laying off 120
night-shift employees at the Moberly plant on May
27 and 31, 1966, and by discriminatorily discharg-
ing Roger Snodgrass and Steven Baldwin at the
Columbia warehouse on September 29, 1966.
3. The Company violated Section 8(a)(5) and
(1) of the Act by unilaterally changing incentive
wage rates at the Moberly plant and by refusing
permission to the Union to make its own timestu-
dies at that plant.
4. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
V. THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it
cease and desist therefrom and take certain action
designed to effectuate the policies of the Act.
It has been found that Respondent laid off night-
shift employees at the Moberly plant on May 27
and 31, 1966, and thereafter delayed their recall to
work to discourage support of the Union. I shall
recommend that Respondent make these em-
ployees whole for any loss of pay suffered because
of the discrimination against them. It has also been
found that Respondent discharged Roger Snodgrass
and Steven Baldwin at its Columbia warehouse on
September 29, 1966, because of their activity in be-
half of the Teamsters. I shall recommend that
Respondent offer them immediate and full rein-
statement to their former or substantially
equivalent positions at the Columbia warehouse,
without prejudice to their seniority or other rights
and privileges, and make each of them whole for
any loss of pay suffered by reason of the discrimina-
tion against him . The loss of pay under the order
recommended shall be computed in the manner set
forth in F. W. Woolworth Company, 90 NLRB 289,
with interest added thereto in the manner set forth
in Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the foregoing findings of fact and conclu-
sions of law and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the follow-
ing:
2' Borts could not recall whether he made this statement before or after
his transfer back to truck unloading
29 Borts in effect replaced Baldwin as a truck unloader.
1618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
McGraw-Edison Company (Bersted Manufactur-
ing Division), its officers, agents, successors, and
assigns, shall:
1 Cease and desist from:
(a) Unlawfully interrogating employees about
their union membership or activity or threatening
them with loss of employment or loss of benefits
because of such membership or activity.
(b) Discouraging membership in the Union, the
Teamsters, or any other labor organization by
discharging or laying off employees, or in any other
manner discriminating against them in regard to
hire or tenure of employment or any term or condi-
tion of employment.
(c) Refusing to bargain with the Union as the ex-
clusive bargaining representative of all the em-
ployees in the certified unit at its Moberly plant by
the unilaterally changing incentive wages rates, and
by refusing to permit the Union to perform inde-
pendent timestudies through its own experts on in-
centive rated jobs.
(d) In any other manner interfering with,
restraining , or coercing employees in the exercise
of their rights under Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Upon request, permit the Union under
reasonable terms and conditions to perform its own
timestudies on incentive rated jobs in the certified
bargaining unit.
(b) Offer Roger Snodgrass and Steven Baldwin
immediate reinstatement to their former or substan-
tially equivalent positions at the Columbia
warehouse, without prejudice to their seniority or
other rights and privileges. Make whole Snodgrass
and Baldwin, and the Moberly employees laid off
on May 27 and 31, 1966, for any loss of earnings
suffered by reason of the discrimination against
them, as provided in "The Remedy" section of this
Decision.
(c) Notify Snodgrass and Baldwin 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.
(d) 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 to analyze the
amount of backpay due under the terms of this
Recommended Order.
(e) Post at its Missouri plants and the Columbia
warehouse copies of the attached notice marked
"Appendix."" Copies of said notice, on forms pro-
vided by the Regional Director for Region 17, after
being duly signed by the Respondent's representa-
tive, shall be posted by it 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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 17,
in writing , within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.31
IT IS FURTHER RECOMMENDED that the objections
to the election in Case 17-RC-5212 be overruled
and that the results of the election be certified.
'0 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 Ap-
peals 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 said Regional Director, in
writing , within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith "
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 Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT refuse to bargain collectively
with Local 257, International Brotherhood of
Electrical Workers, AFL-CIO, as the represen-
tative of the production and maintenance em-
ployees at our Moberly plant, by unilaterally
changing incentive wage rates, or by refusing
to permit Local 257 to perform independent
timestudies through its own experts on incen-
tive rated jobs. We will, upon request, permit
Local 257 to conduct its own timestudies.
All our employees have the right to join or
support a labor union. WE WILL NOT in any
manner interfere with their exercise of this
right. Specifically, WE WILL NOT question em-
ployees about their union membership and ac-
tivity or threaten them with loss of employ-
ment or loss of benefits because of such mem-
bership and activity. WE WILL NOT discourage
membership in Local 257, or Teamsters Local
No. 833, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any
other labor organization, by discharging or
laying off employees because of their union ac-
tivity or sympathy or by discriminating in any
other manner in respect to their hire or tenure
of employment.
MCGRAW-EDISON COMPANY
WE WILL offer immediate and full reinstate-
ment to Roger Snodgrass and Steven Baldwin
to their former or substantially equivalent jobs
at our Columbia warehouse, without prejudice
to their seniority or other rights and privileges,
and make them whole for any loss of pay suf-
fered as a result of the discrimination against
them.
WE WILL make whole our Moberly em-
ployees laid off on May 27 and 31, 1966, for
any loss of pay suffered as a result of the dis-
crimination against them.
MCGRAW-EDISON
COMPANY ( BERSTED
MANUFACTURING
DIVISION)
(Employer)
Dated By
(Representative ) (Title)
1619
Note: We will notify Roger Snodgrass and
Steven Baldwin , 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.
This notice must remain posted for 60 consecu-
tive 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, 610 Federal Building , 601 East 12th Street,
Kansas City, Missouri 64106, Telephone FR
4-5181.