MEMC Electronic Materials

National Labor Relations Board - Board Decisions

Sep 23, 2004

342 N.L.R.B. 1172 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
342 NLRB No. 119
1172
MEMC Electronic Materials, Inc. and International
Association of Machinists & Aerospace Work-
ers, AFL–CIO. Cases 14–CA–27036 and 14–CA–
27251
September 23, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On August 28, 2003, Administrative Law Judge Paul
Bogas issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed a response to the Respondent’s exceptions,
and the Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions,
and to adopt the recommended Order as modified.2
Introduction
The judge found that the Respondent violated Section
8(a)(1) and (3) of the Act by implementing wage restora-
tions on two occasions prior to union elections. For the
reasons set forth below, we adopt the judge’s finding that
the implementation of the wage restorations violated
Section 8(a)(1), but find it unnecessary to pass on the
finding that the implementation also violated Section
8(a)(3).

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We find it unnecessary to pass on the judge’s finding that the Gen-
eral Counsel sustained his initial burden under Wright Line, 251 NLRB
1083 (1980), with respect to the 8(a)(3) allegation concerning the dis-
charge of Avis High. The judge found that a prima facie case of dis-
crimination was established regarding High’s discharge, but ultimately
found that the Respondent met its burden of establishing that it would
have discharged High even in the absence of her protected activity.
Although there were no exceptions filed to the judge’s dismissal of this
complaint allegation, the Respondent excepts to the judge’s finding of a
prima facie case of discrimination regarding High’s discharge. Because
the Respondent’s exception raises no issue that would change the ulti-
mate finding of no violation, we find it unnecessary to pass on this
exception.
2 In NLRB v. MEMC Electronic Materials, Inc., 363 F.3d 705 (8th
Cir. 2004), the Eighth Circuit enforced the Board’s bargaining order
against the Respondent in 338 NLRB No. 142 (2003). Therefore, the
judge’s recommended bargaining order in this proceeding is not neces-
sary. Accordingly, we shall delete par. 2(a) of the judge’s recom-
mended Order.
Relevant Facts
The Respondent manufactures silicon wafers, a build-
ing block of semiconductor devices. The Respondent’s
worldwide headquarters and original facility is located in
Saint Peters, Missouri, where it employs approximately
1200 employees. The Respondent also has facilities in
Pasadena, Texas, Sherman, Texas (known as the
“Southwest” facility), Italy, Japan, Malaysia, and South
Korea. Hourly employees at Saint Peters consist of
maintenance team technicians (MTTs) and operating
team technicians (OTTs). In February 2002, the Interna-
tional Association of Machinists & Aerospace Workers
(Union) began a campaign to represent the hourly em-
ployees at the Saint Peters facility. The Union planned to
organize both the MTTs and the OTTs at Saint Peters.
The Respondent experienced financial difficulties in
2001, and as a result decided to cut wages for its hourly
and salaried employees worldwide in 2002.3 In all, the
Respondent reduced wages for about 2700 of its employ-
ees, 700 of whom were hourly employees at the Saint
Peters facility.4 The Respondent announced these wage
cuts to employees at the Saint Peters facility in Decem-
ber of 2001. Salaried employees were told that their cuts
were due to the Respondent’s financial situation, and
would be restored when the Respondent achieved its fi-
nancial goals. The Respondent told the hourly employ-
ees that they would receive a permanent “market adjust-
ment” cut of 10 percent to their base pay. They were told
that the cut resulted from a wage survey that revealed
hourly employees were overpaid relative to similar em-
ployees in the region, and from the Respondent’s inten-
tion to move toward a pay-for-performance wage struc-
ture.
Hourly employees at the Saint Peters facility were
highly dissatisfied with the wage cuts, and the cuts be-
came a key issue in the union campaign, which began in
February 2002. The Respondent became aware of the
campaign at its inception, and thereafter responded by
asking its supervisors to report on the union sympathies
of employees and by holding antiunion meetings with
employees.
The Respondent’s financial situation improved some-
what in the first two quarters of 2002. However, its sales
volume for the first quarter of 2002 was still significantly
lower than for the same period in 2001. As a result of a
general rebound in the silicon wafer industry and the sale
of the Respondent to another corporation, the Respon-

3 There is no contention that the decision to cut wages violated the
Act.
4 Approximately 300 hourly employees at the Respondent’s South-
west facility experienced a 10 or 11 percent cut in overtime pay. At the
Respondent’s other facilities, only salaried employees received cuts.
MEMC ELECTRONIC MATERIALS, INC. 1173
dent’s condition improved, and it showed a profit in the
second quarter of 2002. As part of its attempt to turn the
business around, the Respondent hired a new CEO, Na-
beel Gareeb, in April of 2002.
The Union filed a petition to represent the MTTs at the
Saint Peters facility on April 23. On May 3, the parties
entered into a stipulated election agreement for the MTTs
at Saint Peters, with the election scheduled for June 5
and 6.
Three days later, on May 6, the Respondent’s compen-
sation committee decided that 50 percent of the reduc-
tions in wages and salaries worldwide would be restored.
The committee also determined that the remaining half of
the reduction for salaried employees worldwide would be
restored on September 1, if there was continued financial
improvement. Regarding the hourly employees at Saint
Peters, the committee determined that the remaining
wage cut would be restored as incentive pay in periodic
lump-sum payments.
On May 10, 7 days after entering into the stipulated
election agreement, the Respondent announced to em-
ployees that the Respondent’s first quarter financial per-
formance had been better than expected, and that it
planned to restore one half of the wage cuts to both sala-
ried and hourly employees. The Respondent announced
that for hourly employees, half of the wage cut would be
restored on June 1, 4 days before the scheduled MTT
election, and the other half may be paid out in “some
form of monthly lump sum payments” in the fourth quar-
ter, only if the Respondent’s financial performance con-
tinued to improve. At one of the meetings where the
announcement was made, an employee asked Human
Resources Manager Andrew Ploeger if the increase was
tied to the upcoming union election. Ploeger denied this,
and reiterated that the change was due to economic con-
siderations.
On May 29 and 30, 5 days before the election,
MEMC’s recently hired CEO, Nabeel Gareeb, met with
the MTTs at Saint Peters in groups of 10 to 15. At the
beginning of the meetings, Gareeb went around the room
and asked each employee what his/her number one con-
cern was, and what Gareeb could do to fix the problem.
While employees stated their concerns, Gareeb took
notes. The concerns raised by the employees included
overtime, pay and pension cuts, and scheduling. After
hearing the employees’ concerns, Gareeb stated that he
could fix some of the problems, but needed a few months
to do so. Gareeb then said that he had gone through a
divorce with his wife, and the two of them had worked
out an equitable settlement. However, his wife then
hired an attorney, whom Gareeb referred to as a “third
party.” Gareeb explained that in doing so, his wife re-
ceived less than she would have had she not hired an
attorney. Gareeb then stated that this was why he did not
like third parties, and that he viewed the Union as a third
party. Gareeb told employees that it would be easier to
address their issues “one on one,” without a third party
involved. Gareeb also said, “people who get lawyers and
have third parties involved usually lose.”5
On May 31, the Union filed a petition to represent
OTTs at the Saint Peters facility. The MTT election oc-
curred on June 5 and 6 as scheduled, and the Union won
the election. On June 28, the Board directed an election
for the OTTs at the facility, scheduled for July 30.
The Respondent’s compensation committee met again
on July 25, and approved the restoration of the second
half of the wage cut for salaried employees, effective
September 1. For hourly employees, the committee ap-
proved the creation of an incentive program. Later, how-
ever, the Respondent decided to restore the base pay cut
for the hourly employees effective September 1. The
Union filed the first of the instant unfair labor practice
charges on July 26, blocking the OTT election.
On August 19, hourly and salaried employees were
told that the second half of the wage cuts would be re-
stored, effective September 1. The Respondent stated
that the changes were due to the improved financial per-
formance on the part of the Respondent, and improved
productivity on the part of employees, although produc-
tivity had not reached the target levels set by manage-
ment. The Respondent also stated that its goal was to
treat salaried and hourly employees the same, and that
one reason for the change was to “eliminate a significant
source of distraction” and to “heal wounds between
hourly and salaried groups.” The restoration of the sec-
ond half of the wage cuts was implemented on Septem-
ber 1.
The Judge’s Decision
The judge found that the May 10 and August 19 wage-
restoration announcements were made for the purpose of
inducing employees not to vote for or support the Union,
and therefore violated Section 8(a)(1) of the Act.6 The
judge also found that the June 1 and September 1 wage res-
torations violated Section 8(a)(1) and (3) of the Act. In
finding the Section 8(a)(3) violation, the judge analyzed the
wage restorations under NLRB v. Exchange Parts, 375 U.S.
405 (1964), and found that, under all the evidence, the Re-
spondent’s May 10 announcement and June 1 grant of the
first wage restoration had the purpose of inducing employ-

5 The judge found, and we agree, that by these comments, Gareeb
violated Sec. 8(a)(1) by soliciting and promising to remedy employee
grievances, and by threatening employees with loss of benefits if they
chose to select the Union.
6 We adopt these 8(a)(1) findings for the reasons stated by the judge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1174
ees to vote against the Union. The judge emphasized that
the Respondent knew that the hourly employees’ dissatis-
faction with the permanent wage cuts was a key motivation
behind the union campaign. The judge found that the tim-
ing of the announcement and grant of benefits, so soon be-
fore the election, was very suspicious, especially in light of
the Respondent’s earlier statements that the wage cuts were
permanent. The judge further noted the absence of any
documentary evidence indicating that the decision to restore
the wage cuts predated the union campaign, or that the Re-
spondent in previous years had granted wage increases in
May or June. The judge also found that the Respondent
harbored anti-union animus, and rejected the Respondent’s
claim that the restorations were inspired by the global resto-
ration of wages that took place at this time. The judge em-
phasized that hourly and salaried employees worldwide
were always treated differently, and that hourly employees
at the Saint Peters facility were the only employees who had
their wage reductions restored after being told that the re-
ductions were permanent.
Using a similar analysis, the judge found that the an-
nouncement and implementation of the second half of the
wage restoration was motivated by a desire to discourage
employees from supporting the Union. The judge found
that, although the election for hourly production employ-
ees had been blocked at the time of the announcement, the
possibility of an election remained very real. Further, the
judge explained that the decision to restore the base pay
cut not only contradicted the Respondent’s initial claims
that the cut was permanent, but also contradicted the deci-
sion of its compensation committee on July 25 to create an
incentive program for hourly employees. For these rea-
sons, the judge found that the Respondent’s wage restora-
tions violated Section 8(a)(3) and (1) of the Act.
As explained below, we agree that the Respondent’s
wage restorations violated Section 8(a)(1). In view of this
finding, we find it unnecessary to pass on whether the
wage restorations also violated Section 8(a)(3), because it
would not materially affect the remedy in this case.
Discussion
It is well established that granting benefits while a rep-
resentation petition is pending has a tendency to coerce
employees’ free exercise of their rights. NLRB v. Ex-
change Parts Co., 375 U.S. 405 (1964). As the Supreme
Court stated, “[t]he danger inherent in well-timed in-
creases in benefits is the suggestion of a fist inside the
velvet glove. Employees are not likely to miss the infer-
ence that the source of benefits now conferred is also the
source from which future benefits must flow and which
may dry up if it is not obliged.” Id. at 409. The Board
particularly scrutinizes wage increases given prior to an
election, because they have “a potential long-lasting ef-
fect, not only because of their significance to employees,
but also . . . because the increases regularly appear in
paychecks . . . [as] a continuing reminder.” Holly Farms
Corp., 311 NLRB 273, 281-282 (1993), enfd. 48 F.3d
1360 (4th Cir. 1995), affd. 517 U.S. 392 (1996).
In conferral-of-benefits cases, the Board has consis-
tently inferred a violation of Section 8(a)(1) from nothing
more than conferral itself during the pendency of an elec-
tion, leaving it to the employer to make an affirmative
showing that the grant of benefits was governed by factors
other than the impending election. See, e.g., Speco Corp.,
298 NLRB 439, 443 (1990); Brooks Bros., 261 NLRB
876, 882 (1982); Gordonsville Industries, 252 NLRB 563,
575 (1980). Applying that analysis here, we find that the
Respondent’s wage restorations on June 1 and September
1, 2002, during the critical period prior to two representa-
tion elections, gave rise to an inference that the Respon-
dent violated Section 8(a)(1). We further find that not
only has the Respondent failed to present evidence suffi-
cient to explain the wage restorations based on factors
independent of the union campaign, there is additional
evidence that buttresses the finding of a violation.
One way in which an employer may explain the con-
ferral of benefits during the pendency of an election is to
establish that the grant of benefits “had been conceived
and implemented prior to the union’s arrival, and that the
preelection announcement simply made known to em-
ployees a predetermined and existing benefit, legiti-
mately processed and unveiled in accordance with the
dictates of business constraints, not union considera-
tions.” Gordonsville Industries, 252 NLRB at 575. The
Respondent certainly cannot exonerate its wage restora-
tions based on this justification.
Prior to the Union’s campaign, the Respondent told
hourly employees that their wage cuts were permanent
“market adjustment” cuts that would never be restored,
regardless of the Respondent’s financial performance.
On May 6, however, a mere 3 days after entering into a
stipulated-election agreement for the MTTs, the Respon-
dent’s compensation committee reversed course and de-
cided to restore the first half of the wage cut for both
hourly and salaried employees. Thereafter, the Respon-
dent announced this decision to employees on May 10,
only 4 days before the MTT election was to begin. There
is no evidence that, prior to the Union’s campaign, the
Respondent had planned to restore the wage cuts to
hourly employees, or that the Respondent had a past
practice of granting wage increases in June.
The Respondent likewise cannot exonerate the second
half of the wage restoration on the basis that it was “pre-
determined” before the advent of the Union, because not
only had the Respondent not decided upon this part of
MEMC ELECTRONIC MATERIALS, INC. 1175
the wage restoration before the Union’s organizing cam-
paign, the Respondent’s decision to restore the second
half of the wage cut to hourly employees was inconsis-
tent with the prior decision of its compensation commit-
tee, which had decided to restore the cut to salaried but
not hourly employees on July 25.7 The Respondent gave
no explanation for this reversal.
The Respondent attempts to explain its wage restora-
tions based on factors unrelated to the Union campaign
by contending that its decision to restore hourly employ-
ees’ wages so shortly before an election was due to its
improved business condition in the first two quarters of
2002. While it is clear that the Respondent’s financial
situation improved in the first half of 2002, it is also clear
that the Respondent continued to experience financial
difficulties during this period. Indeed, the Respondent’s
sales volume for the first quarter of 2002 was still sig-
nificantly lower than for the same period in 2001. The
Respondent only began to turn a profit during the second
quarter of 2002. Thus, we find that this argument fails to
explain the wage restorations.
The Respondent further argues that its decision was
unrelated to the union campaign, as shown by the fact
that it restored wages to 2700 employees worldwide,
only 700 of whom were hourly employees at the Saint
Peters facility, and only 115 of whom were MTTs about
to vote in the election. This contention ignores the fact
that the Respondent treated hourly and salaried employ-
ees differently. The Respondent claimed from the outset
that it would restore the cuts to salaried employees. As
discussed above, however, it decided to restore the cuts
for the 700 hourly employees targeted by the union cam-
paign only after the campaign began. In addition, the
only hourly employees to experience a cut in base pay
were the 700 Saint Peters employees. Although, as the
dissent points out, wages were also restored to hourly
employees at the Southwest facility, those employees had
not experienced an initial base pay cut, and were not told
that their wage cut would be permanent. This distin-
guishes them from the hourly Saint Peters employees. In
any event, as the Board has held, merely changing bene-
fits at multiple locations does not by itself establish a
lawful motive in such cases. Sears Roebuck & Co., 305
NLRB 193, 195–196 (1991).

7 The Respondent announced the second half of the wage restoration
on August 19, while the election petition for the unit of OTTs was
blocked by a pending unfair labor practice charge. As the judge
pointed out, the possibility of an election remained very real at this
point. Indeed, the Board has found that conferring benefits in instances
where an election is not presently scheduled, but the possibility of an
election remains very real, violates the Act. See Wis-Pak Foods, Inc.,
319 NLRB 933, 939 (1995), enfd. 125 F.3d 518 (7th Cir. 1997).
Additional evidence further supports a finding that the
Respondent’s wage restorations were intended to under-
mine employee support for the Union in violation of Sec-
tion 8(a)(1). When the Respondent decided to grant the
wage restorations, it was well aware that employee dis-
content over the wage reductions was one of the main
issues driving the union campaign. The Respondent al-
luded to this fact when it announced the second wage
restoration, stating that a purpose of the restoration was
to “eliminate a significant source of distraction,” and to
“heal wounds between hourly and salaried groups.” In-
deed, these comments indicate an acknowledgement by
the Respondent that the hourly employees were angry
with the Respondent for cutting their wages, and that this
anger was a direct cause of the union campaign. Con-
trary to our dissenting colleague’s contention, there is no
evidence of tension between hourly and salaried employ-
ees, or that these remarks referred to any situation other
than the union campaign. Rather, the evidence shows
that the hourly employees’ anger over the wage reduc-
tions was inextricably linked to the union effort, and was
the primary motivating factor for most employees’ sup-
port of the Union. In other words, this was a typical case
of employees deciding to unionize because of their anger
with their employer’s decision to reduce wages. Any
suggestion that the Respondent was acting as a peace-
maker between hourly and salaried employees is nothing
more than an attempt to disguise the true nature of the
conflict occurring at the facility.
CEO Nabeel Gareeb’s unlawful solicitation of griev-
ances and threat of loss of benefits at the May 29 and 30
employee meetings shed further light on the Respondent’s
intent in restoring the wage cuts. The Supreme Court has
held that other unlawful conduct on the part of an em-
ployer may be evidence of the motive behind a grant of
benefits and, to that extent, is relevant to the legality of the
grant. Exchange Parts at 410. Contrary to our dissenting
colleague, we find that the significance of this evidence is
not diminished by the fact that the May 29 and 30 viola-
tions occurred after the decision and announcement re-
garding the first wage restoration. Gareeb was integrally
involved in both the unlawful statements and the decision
to restore wages, and his statements reveal that the Re-
spondent was motivated to convince employees not to vote
for the Union. The fact that these unlawful threats came
from the Respondent’s CEO reveals an effort at the high-
est level of management to thwart the union effort. In
these circumstances, the violations by Gareeb provide
substantial evidence of the Respondent’s antiunion moti-
vation and show that employees could reasonably view the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1176
wage increases as an attempt to influence their votes in the
upcoming election.8
For the reasons stated above, we find that the Respon-
dent has failed to explain its wage restorations based on
factors unrelated to the union campaign, and we therefore
conclude that the wage restorations violated Section
8(a)(1).
Our dissenting colleague argues that our finding of an
8(a)(1) violation is procedurally improper, because the
General Counsel alleged that the wage restorations vio-
lated Section 8(a)(3) and (1) of the Act, but did not inde-
pendently allege that the conduct violated Section
8(a)(1). We disagree. The wage restorations were fully
litigated at trial. First, the conduct was alleged to be
unlawful, violating Section 8(a)(3) and—at least deriva-
tively—Section 8(a)(1). Second, the General Counsel’s
theory of a violation at trial focused on the Respondent’s
intent to influence the employees’ vote by changing
terms and conditions of employment. This theory of a
violation, and the applicable standard of proof, is effec-
tively indistinguishable from the 8(a)(1) Exchange Parts
standard that we have applied.9 Next, the Respondent
submitted evidence at the hearing to support its claim
that its purpose in restoring the wages was not to influ-
ence the employees’ vote. This is the same defense that
would have been presented under the 8(a)(1) theory of
violation that we found. Finally, the Exchange Parts
factors were discussed at length in the judge’s decision,
in the Respondent’s brief to the judge, and in its brief to
the Board accompanying its exceptions. In fact, the Re-
spondent’s argument in support of its exceptions urged
that the Board overrule Exchange Parts. In light of these
circumstances, it is clear that the 8(a)(1) violation we
have found was fully and fairly litigated, even though it
was derivatively alleged in the complaint. There simply
is no basis to find that the Respondent has been unfairly
prejudiced by our finding.
In sum, for the reasons stated above, we find that the
evidence demonstrates that the Respondent’s implemen-
tation of the two wage increases was motivated by the
desire to induce employees not to vote for the Union in
the upcoming elections. Accordingly, the implementa-
tion of those increases violated Section 8(a)(1) of the
Act.

8 Because Gareeb’s statements provide sufficient evidence of the Re-
spondent’s unlawful motivation in granting the wage restorations, we
find it unnecessary to rely on the other evidence of animus cited by the
judge.
9 Under either standard, the intent of this conduct is to undermine
employee support for the Union.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and orders that the Respondent, MEMC Elec-
tronic Materials, Inc., Saint Peters, Missouri, its officers,
agents, successors, and assigns shall take the action set
forth in the Order as modified.
1. Delete paragraph 2(a) of the judge’s recommended
order and reletter the subsequent paragraphs.
2. Substitute the attached notice for that of the admin-
istrative law judge.

CHAIRMAN BATTISTA, dissenting in part.
Contrary to my colleagues and the judge, I find the Re-
spondent did not violate the Act when it restored wage
cuts to hourly employees at its Saint Peters facility.1
At the outset, I have a procedural disagreement with
the majority’s finding that the Respondent’s wage resto-
rations violated Section 8(a)(1) of the Act. This finding
is based on Section 8(a)(1) as an independent violation,
as distinguished from an 8(a)(1) violation that is deriva-
tive from Section 8(a)(3). This independent allegation
was neither included in the complaint nor litigated at
trial. Rather, the 8(a)(1) violation regarding the wage
restorations was alleged only as a derivative of the al-
leged 8(a)(3) violation. Thus, the majority’s finding is
beyond the General Counsel’s theory of the case.
Further, contrary to my colleagues’ claims, there is a
significant difference between an independent 8(a)(1)
violation (based on NLRB v. Exchange Parts, 375 U.S.
405 (1964)), and the 8(a)(3) violation alleged by the
General Counsel. In alleging an 8(a)(3) violation, the
General Counsel contends that the Respondent engaged
in the conduct with an intent to discriminate against em-
ployees because of their union activities. The majority’s
8(a)(1) analysis, conversely, is predicated on their find-
ing that the Respondent’s conduct interfered with the
election. Thus, the complaint required the Respondent to
defend against the allegation that it intended to discrimi-
nate against employees because of their union activity by
implementing the wage increases; it did not require the
Respondent to defend against a claim that the conduct
interfered with the election. That issue is beyond the
General Counsel’s theory of the case, and accordingly is
not appropriate for consideration.
Further, assuming arguendo that an independent
8(a)(1) allegation alleging interference with the election
is properly before us, I find no merit to it. More particu-
larly, I disagree with the finding that the decision to re-
store the wage cuts was for the purpose of interfering
with the election.

1 I agree with my colleagues’ findings in all other respects.
MEMC ELECTRONIC MATERIALS, INC. 1177
The record shows that the Respondent experienced
major financial troubles in 2001. As a consequence, it
cut wages and benefits for all its employees worldwide.
The Respondent informed employees of the financial
circumstances that necessitated the cuts, and told sala-
ried employees that their cuts would be restored as soon
as the Respondent regained profitability.
The Respondent’s decision to reduce wages created a
firestorm of controversy among employees at the Saint
Peters facility. Hourly employees were angry at being
treated differently than salaried employees, i.e., their pay
cuts were said to be permanent while the cuts given to
salaried personnel were only temporary. This discontent
led to decreased morale among employees and created a
significant distraction in the workplace. This divisive
result was not anticipated by the Respondent at the time
it made the cuts. However, this problem became clear
early in 2002. Thus, although the original plan was to
treat the two groups differently (making salaried cuts
temporary and hourly cuts permanent), the ensuing con-
troversy required a change in the plan.
Further, the Respondent experienced several signifi-
cant changes in the first half of 2002 that permitted this
change. First, the Respondent’s financial situation began
to improve. Although its losses still exceeded its profits
in the first quarter of 2002, the Respondent regained
profitability in the second quarter. Second, the Respon-
dent was sold to a new company, and it hired a new
CEO, Nabeel Gareeb, in April 2002. When Gareeb came
in, he saw the divisiveness that had been caused by the
wage cuts, and he immediately acted to remedy the dis-
sension. Thus, shortly after he took office, on May 6, the
Respondent’s compensation committee met and resolved
to restore the first half of the wage cuts to all employees
on June 1, regardless of hourly or salaried status. This
change was announced to employees on May 10. Em-
ployees were told that the restoration was due to the Re-
spondent’s improved financial situation and improved
productivity. The wage restorations were worldwide, and
were received by every employee who had received a
wage cut in December.
The Respondent’s compensation committee met again
on July 25, and resolved to restore the second half of the
wage cuts for salaried employees worldwide, effective
September 1. Subsequent to that meeting, the Respon-
dent’s managers decided to also restore the second half
of the wage cuts to hourly employees on September 1.
This restoration was announced to both hourly and sala-
ried employees on August 19. The employees were told
the reasons for the restoration, which were the Respon-
dent’s improved financial situation and the employees’
improved productivity. The Respondent also clearly told
employees that its goal was to mend the divisions be-
tween hourly and salaried employees caused by the un-
equal wage restorations. The Respondent made no refer-
ence to the Union during these announcements, and there
was no reason for employees to believe that the restora-
tions were in any way linked to the union campaign.
The judge’s finding, that the Respondent deliberately
timed its worldwide wage increases in response to a un-
ion election among only the employees at one location,
strains credulity. The wage restorations affected 2700
employees and cost the Respondent $10 million. This
was a substantial outlay for a financially struggling com-
pany. However, in Gareeb’s view, there was an urgent
need to boost morale and end the divisions between
hourly and salaried employees. All employees who re-
ceived wage cuts in December got wage restorations in
June and September of 2002. This included hourly and
salaried employees at the Saint Peters facility and every-
where else. For example, it included hourly employees
at the Southwest facility, who were not involved in the
union campaign.
The manner in which the Respondent announced the
wage restorations further belies the judge’s findings.
The Respondent specifically informed employees that the
reasons for the restorations were the Respondent’s in-
creased profitability and its desire to “heal wounds be-
tween hourly and salaried groups” and to “eliminate a
significant source of distraction.” Clearly, these state-
ments were in reference to the conflict between hourly
and salaried employees caused by the disparate treat-
ment. There was no evidence presented that the employ-
ees would reasonably tie these references to the union
campaign. In fact, when an employee raised the union
issue at one of the meetings, he was immediately in-
formed by the human resources manager that there was
no connection between the Union and the wage restora-
tions. Other than this remark, no reference was made to
the Union during the announcements.
With respect to the first 50-percent restoration for both
salaried and hourly employees, that decision was made in
early May, shortly after the hiring of the new CEO, who
saw that the divisiveness would be exacerbated by a res-
toration for one group and not the other.
With respect to the second 50-percent restoration for
both salaried and hourly employees, that decision was
made in July, after the second-quarter figures were in.
Again, it would have been divisive to restore the wage
reduction for one group and not the other. Further, this
decision was announced in August, after the election had
been held.
I also disagree with the judge’s findings of animus.
The judge cited the following as evidence of the Respon-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1178
dent’s antiunion animus: (a) a statement in the Respon-
dent’s handbook indicating that remaining “union-free”
is an objective of the company, (b) the Respondent’s
postcertification refusal to bargain with the Union, (c)
Human Resources Manager Andrew Ploeger’s state-
ments, in testimony, that the desire to stay union-free
colored the Respondent’s decision making during the
union campaign, (d) Plant Manager Henry Midgett’s
statements, in testimony, that the Respondent made an
effort to address employee complaints during the cam-
paign, in part with the goal of remaining union-free, (e)
the Respondent’s attempt to withdraw from the election
stipulation involving the maintenance employees and
seeking of an emergency stay to prevent the counting of
the ballots, and (f) Gareeb’s unlawful threats of loss of
benefits and unlawful solicitation and promises to rem-
edy employee grievances.
I now address these matters seriatim. The “union-free”
statement in the Respondent’s handbook is a lawful
statement of opinion, protected by Section 8(c) of the
Act. Such a statement, devoid of any threatening con-
text, does not indicate that the Respondent would take
unlawful action to achieve that goal. Next, the Respon-
dent’s refusal to bargain with the Union to test certifica-
tion is not evidence of animus to support an 8(a)(3) vio-
lation. It is the only way to judicially test a certification.
See, e.g., Wright Motors, Inc., 237 NLRB 570 (1978),
enfd. 603 F.2d 604 (7th Cir. 1979). The Respondent’s
attempt to withdraw from the MTT election was prem-
ised on the Union’s filing of a petition to represent the
OTTs at the facility shortly before the election, causing
the Respondent to question the scope of the stipulated
unit. Its seeking of an emergency stay to prevent the
counting of the ballots postelection was similarly moti-
vated. These procedural positions do not in any way
demonstrate antiunion animus.
Next, the judge relies on testimony from Midgett and
Ploeger regarding the Respondent’s desire to remain un-
ion-free. Midgett testified that while the Respondent was
concerned with remaining union-free, this was not a sig-
nificant factor in the decision to address employee con-
cerns about wages. Ploeger stated that addressing em-
ployee concerns was a way to create a good working
relationship, which could lead to staying union-free, and
that one of the Respondent’s goals was to remain union-
free. Neither of the statements was made to employees.
Although both statements suggest that the goal of re-
maining union-free may have influenced some decision
making during the campaign, the record does not estab-
lish that the specific decision to restore wage cuts was
caused by a desire to win the election.
Concededly, Nabeel Gareeb’s remarks at the May 29
and 30, 2002, employee meetings constitute an unlawful
solicitation of and promise to remedy employee griev-
ances, and a threat of loss of benefits if employees select
the Union as their bargaining representative. However,
there is no nexus between these statements and the prior
decision to restore wages. Gareeb’s remarks were made
3 weeks after the decision to restore the first half of the
wage cuts, and there was no connection between the top-
ics discussed at the Gareeb meetings and the wage resto-
rations. Gareeb made no mention of the wage restora-
tions during the meetings at which he made the 8(a)(1)
statements. Thus, the record includes no linkage be-
tween the wage restorations and Gareeb’s subsequent
unlawful solicitation of grievances and threat of loss of
benefits. It is simply too great a leap to infer that these
subsequent statements demonstrate that the Respondent
acted with an election motive when it previously decided
to restore wages to the hourly employees at Saint Peters.
Because the General Counsel failed to prove by a pre-
ponderance of the evidence that there was an improper
motive in the Respondent’s conduct, the General Counsel
has not established a violation of the Act.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your benefit
and protection
Choose not to engage in any of these protected ac-
tivities.

WE WILL NOT make announcements regarding changes
in compensation for hourly employees for the purpose of
inducing you not to vote for, or otherwise support, a un-
ion.
WE WILL NOT solicit and promise to remedy employee
grievances for the purpose of discouraging support for a
union.
WE WILL NOT threaten that selecting a union as your
collective-bargaining representative will result in your
loss of benefits.
MEMC ELECTRONIC MATERIALS, INC. 1179
WE WILL NOT maintain or enforce any overly broad
no-distribution policy that is not restricted to working
time and work areas.
WE WILL NOT implement any changes in compensation
for the purpose of inducing you not to vote for, or other-
wise support, a union.
WE WILL NOT implement any unilateral changes to the
base pay rate of hourly maintenance employees at our
Saint Peters facility without providing the International
Association of Machinists and Aerospace Workers,
AFL–CIO (the Union) with adequate prior notice and an
opportunity for bargaining.
WE WILL NOT implement any new pay programs for
hourly maintenance employees at our Saint Peters facil-
ity without providing the Union with adequate prior no-
tice and an opportunity for bargaining.
WE WILL NOT change the areas where hourly mainte-
nance employees at our Saint Peters facility are permitted
to take their breaks without providing the Union with
adequate notice and an opportunity for bargaining.
WE WILL NOT change the practice of allowing hourly
maintenance employees to work on personal projects at
our Saint Peters facility during their nonwork time, with-
out providing the Union with adequate notice and an
opportunity for bargaining.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order,
notify all hourly employees at our Saint Peters facility
that the provision in the Company’s employee handbook
which prohibits employees from distributing literature at
any time for any purpose is rescinded, void, of no effect,
and will not be enforced.
WE WILL, within 14 days from the date of this Order,
rescind, if requested to do so by the Union, the changes
in the base pay rate for hourly maintenance employees at
our Saint Peters facility that we unilaterally implemented
after the representation election of June 5 and 6, 2002.
WE WILL, within 14 days from the date of this Order,
rescind, if requested to do so by the Union, the incentive
pay programs for hourly maintenance employees at our
Saint Peters facility that we unilaterally implemented
after the representation election of June 5 and 6, 2002.
WE WILL, within 14 days from the date of this Order,
rescind the unilateral change, made on July 23, 2002,
which altered the areas where hourly maintenance em-
ployees at our Saint Peters facility were permitted to take
their breaks, and notify all such employees that the
change has been rescinded.
WE WILL, within 14 days from the date of this Order,
rescind the unilateral change, made on July 23, 2002,
which discontinued the practice of allowing hourly main-
tenance employees to work on personal projects at our
Saint Peters plant during their nonwork time, and notify
all such employees that the change has been rescinded.
MEMC ELECTRONIC MATERIALS, INC.

Christal J. Key, Esq., for the General Counsel.
Richard E. Jaudes, Timothy J. Sarsfield, Stephen D. Smith, and
Esqs. (Thompson Coburn LLP), Saint Louis, Missouri, for
the Respondent.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This case was tried
in Saint Louis, Missouri, on April 28, 29, 30, and May 1, 2003.
The International Association of Machinists & Aerospace
Workers, AFL–CIO (the Union) filed the original charge in
Case 14–CA–27036 on July 26, 2002, and the amended charge
on November 26, 2002. The Union filed the original charge in
Case 14–CA–27251 on December 26, 2002, and amended
charges on January 10 and February 13, 2003. The Director of
Region 14 of the National Labor Relations Board (the Board)
issued the consolidated complaint on February 24, 2003, and
the amended consolidated complaint (the Complaint) on April
16, 2003. The complaint alleges that MEMC Electronic Mate-
rials, Inc. (the Respondent), attempted to discourage union
support in violation of Section 8(a)(1) of the National Labor
Relations Act (the Act) by: announcing that it would reverse an
earlier wage cut; soliciting and promising to remedy griev-
ances; implying that selection of the Union would result in loss
of benefits; threatening employees with plant closure; announc-
ing that it would implement a quarterly incentive pay plan for
employees; and maintaining a restriction on the distribution of
literature. The complaint further alleges that the Respondent
violated Section 8(a)(1) and (3) of the Act by discriminating
because of employees’ Union and concerted activity when it:
reversed a wage cut; implemented a quarterly incentive pay
plan; implemented a new overtime policy; and discharged em-
ployee Avis High. The complaint also alleges that the Respon-
dent failed to bargain in violation of Section 8(a)(1) and (5) by:
unilaterally instituting new policies regarding breaks and out-
side projects; unilaterally reversing the second half of the wage
cut; and unilaterally implementing a quarterly incentive pay
plan.1
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the parties, I make the following findings of fact and conclu-
sions of law.

1 The Complaint also included an allegation that the Respondent by-
passed the Union and dealt directly with bargaining unit employees in
violation of the Sec. 8(a)(1) and (5) of the Act by distributing a survey
seeking employees’ sentiments regarding overtime policy. (GC Exh.
1(s) par. 8). At the start of trial, I granted the General Counsel’s mo-
tion to withdraw this allegation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1180
FINDINGS OF FACT2
I. JURISDICTION
The Respondent, a corporation, manufactures, distributes,
and sells silicon wafers. During all material times it had offices
and a manufacturing facility in Saint Peters, Missouri, and in
conducting its operations has sold and shipped from that facil-
ity, goods valued in excess of $50,000 directly to points outside
the State of Missouri. The Respondent admits and I find that it
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent manufactures silicon wafers—a building
block of semiconductor devices. At the time of trial, the Re-
spondent employed between 4000 and 5000 persons. The Re-
spondent’s worldwide corporate headquarters and original fa-
cility is located in Saint Peters, Missouri, where it has approxi-
mately 1200 employees. The Respondent also has facilities in:
Pasadena, Texas; Sherman, Texas (sometimes referred to as
“MEMC Southwest”); Italy; Japan; Malaysia; and South Ko-
rea.3
As of early 2002, employees at the Respondent’s Saint Pe-
ters facility were not represented by a union.4 In February of
that year, the Union began a campaign to represent hourly em-
ployees at the Saint Peters facility. On May 3, 2002, the Re-
spondent entered into a stipulated agreement for an election to
determine if a majority of the hourly maintenance employees
(classified as maintenance team technicians or MTTs) at that
facility wished to be represented by the Union.5 On the day
before the election, the Respondent tried to withdraw from the
stipulated election agreement, but the Acting Director for Re-
gion 14 rejected this request. The election was held on June 5
and June 6, 2002. The Respondent sought an emergency stay
to prevent the Board from counting the employees’ ballots, but
on June 10 the ballots were counted, revealing that employees
had voted in favor of the Union by a margin of 72 to 36. On
October 24, 2002, the Union was certified as the exclusive
collective-bargaining representative of the maintenance em-
ployees. Despite the certification, the Respondent has refused

2 The Respondent’s unopposed motion, dated June 19, 2003, to cor-
rect the transcript is granted and received in evidence as Respondent’s
Exhibit (R. Exh. 39). The General Counsel’s motion, unopposed mo-
tion, dated June 20, 2003, to substitute a superior copy of one page
contained in GC Exh. 47 is granted and received in evidence as GC
Exh. 49.
3 In addition, the Respondent has a number of sales’ offices and a
40-percent ownership interest in a facility in Taiwan.
4 Unions represent employees at the Respondent’s facilities in Italy,
South Korea, and Pasadena, Texas.
5 The election stipulation defined the unit as: “All full-time and
regular part-time employees employed in the MTT classification at the
Employer’s Saint Peters, Missouri facility EXCLUDING all utility
operators, office clerical and professional employees, guards, supervi-
sors as defined in the Act, and all other employees.”
to bargain with the Union, apparently contending that the certi-
fication was improper because the unit definition in the election
stipulation it had previously agreed to did not include produc-
tion workers. On April 10, 2003, the Board upheld the certifi-
cation of the Union, and ruled that the Respondent’s refusal to
bargain was a violation of Section 8(a)(1) and (5) of the Act.
338 NLRB No. 142 (2003) (Case 14–CA–27224).6
On June 28, the Board directed an election for another unit
of hourly employees at the Respondent’s Saint Peters facility.
This prospective unit was composed of hourly production em-
ployees, classified by the Respondent as operating team techni-
cians (OTTs). The production employees were scheduled to
start voting on July 30, 2002, but on July 26, the Union filed an
unfair labor practices charge that blocked the election.
B. State of the Respondent’s Business
During much of the period leading up to the start of the un-
ion campaign, the Respondent was in financial distress. In 1998
the Respondent lost $315 million, in 1999 it lost $150 million,
in 2000 it lost $40 million, and in 2001 it lost $530 million. On
November 13, 2001, the Respondent was sold by its then-
owner, a German company called E.On, to Texas Pacific Group
(TPG). TPG paid $6 for the Respondent and, under the terms
of the sale, E.On was required to make a large cash infusion to
the Respondent and to relieve the Respondent and/or TPG of
$1.1 billion of the Respondent’s debt to E.On.
The Respondent engaged in a number of cost cutting meas-
ures during the period of financial distress. In 2001, the Re-
spondent laid off approximately 2300 of its 7000 employees.
In December 2001, the Respondent announced that it would
carry out various changes in compensation and benefits at the
Saint Peters facility. For example, the Respondent announced
that it would reduce the base wage rate for hourly employees by
10 percent effective January 2002. Henry Midgett (the plant
manager of the Saint Peters facility) and Andrew Ploeger (the
Respondent’s human resources manager) met with employees
to discuss this change, which they described as a “permanent”
reduction that was based on the necessity of conserving cash,
wage studies indicating that the Respondent was overpaying
employees, and the company’s desire to move towards a pay-
for-performance wage structure. The hourly employees were
also told that they would not receive any wage increases in
2002.7 At the same time, the Respondent reduced or eliminated

6 As of the time of the trial, and despite the Board’s decision in Case
14–CA–27224, the Respondent maintained that it had no obligation to
bargain with the Union. At the trial in the instant matter, the parties
stipulated that the final decision issued by the Board in Case 14–CA–
27224, or the decision of the highest court that reviewed that decision,
would be determinative of the issues relating to the certification of the
Union, and that the question of whether the certification was valid
would not be litigated in the instant proceeding.
7 I do not credit Midgett’s testimony that at the December 2001
meetings on compensation, and in informal discussions around that
time, he told hourly employees that the Respondent would “get money
back in their pockets as quick as possible.” (Tr. 495.) Several wit-
nesses gave testimony that contradicted Midgett’s claim that he had
made such a representation, at least prior to when Gareeb arrived in
April 2002. (Trs. 158, 181, 308, 801–802, 803–804.) In addition, I
find it implausible that Midgett would have made such a claim given
MEMC ELECTRONIC MATERIALS, INC. 1181
a number of employee benefits. Most notably, the Respondent
discontinued contributions to the employee’s pension plan and
eliminated retiree medical and life insurance benefits for many,
and probably most, employees.8 The Respondent also reduced
the base salary of employees in salaried positions by between 5
and 20 percent. Unlike the “permanent” reductions for the
hourly employees, the reductions for the salaried employees
were described by the Respondent as “temporary.” The sala-
ried employees were told their wage reductions would be fully
reversed when the Respondent met its financial targets—
probably within 12 months. At the same time, the Respondent
awarded stock options to all employees, both salaried and
hourly, whose pay had been reduced. The Respondent also
informed employees that it was considering a plan to provide
incentive pay, previously available only to a select group of
salaried employees, to all salaried and hourly employees.
The reductions in compensation were not confined to the
Saint Peters facility. The Respondent also reduced compensa-
tion for salaried and hourly workers at the Sherman, Texas
facility, for nonunion employees at the Pasadena, Texas facil-
ity, and for management officials at facilities in Japan, Korea,
Malaysia, and Taiwan.9 The Saint Peters facility was, however,
the only location at which hourly employees saw a reduction in
their base pay rate. At the Sherman, Texas, facility the Re-
spondent made changes in the way overtime pay was calculated
for hourly workers, and this resulted in a reduction in pay of
about 10 or 11 percent, but the employees’ base pay rate was
not changed. In all, between 2600 and 2700 of the Respon-
dent’s employees were affected by wage cuts in 2002, ap-
proximately 700 of whom were hourly employees at the Saint
Peters facility. The Respondent expected that the worldwide
pay cuts would save the company $10 million over the course
of a year.
In 2002, the silicon wafer industry saw a significant recov-
ery, with an increase in volume of about 31 or 32 percent over
the previous year. Nevertheless, for the first quarter of 2002
(January 1 to March 31), Respondent’s sales volume was still
significantly lower than for the same period in 2001. As of
April 2002, the Respondent’s chief financial officer’s view was

his statement at the December 2001 meeting that the wage cut for
hourly employees was permanent. (GC Exh. 10, R Exh. 6, R. Exh. 18;
Tr. 493–494.) Moreover, based on his demeanor and testimony, I did
not find Midgett a particularly credible witness regarding disputed
matters. At times he clearly attempted to shade his testimony to present
matters in a manner favorable to the Respondent. For example, he
testified that he “couldn’t speculate” on whether the Respondent was
opposed to having a union at the Saint Peters facility, but then admitted
that the Respondent did “make a statement . . . that we were not for
unionization at the Saint Peters site.” (Tr. 512.) Similarly, Midgett at
first denied that one of management’s goals during the organizing
campaign was to solicit employee complaints, but then admitted that
finding out what employees’ issues were became of greater concern to
the Respondent during the organizing campaign. (Tr. 512–513.)
8 The only employees who would continue to accrue pension bene-
fits and retain their retiree medical and life insurance were those who,
as of December 31, 2001, were at least 50 years of age with 5 years of
service, or had at least 25 years of service.
9 Reductions were not implemented for unionized employees at the
Respondent’s facility in Pasadena, Texas.
that “market activity justifie[d] guarded optimism,” but that
new growth could not yet be predicted. Later in 2002, the in-
dustrywide improvement began to buoy the Respondent. The
Respondent also benefited from its sale to TPG, which en-
hanced customers’ perception of the Respondent’s financial
condition and ability to deliver its product. At the beginning of
2002, the Respondent’s orders began to rebound and the Re-
spondent was profitable for the second quarter of 2002.10 In
February 2002, the Respondent began to recall employees to
the Saint Peters facility in order to meet the reinvigorated de-
mand for its product. The Respondent eventually recalled be-
tween 200 and 300 of its Saint Peters employees—everyone on
its recall list. In a further effort to boost production, the Re-
spondent assigned an unusual amount of mandatory overtime.
This led to discontent among workers, many of whom appar-
ently did not care for the overtime work, and felt it was not
being assigned on a fair or consistent basis. In May and June
2002, a group of employees approached the Respondent’s offi-
cials on at least three occasions to complain about the overtime
policy.
Despite the recall of laid-off workers, and the increased use
of mandatory overtime, the Respondent was not able to meet its
production requirements or consistently ship orders to custom-
ers in a timely fashion. For example, in July 2002, the Respon-
dent met its shipping target dates for only about 65 percent of
orders. John Jansky (corporate vice president) held a meeting
on July 23 with supervisory personnel at the Saint Peters facil-
ity and announced new production and on-time shipping goals
that he said the facility was to meet within 28 days. Jansky
stated that the facility “had” to accomplish the improvements,
but did not state what the consequences would be if the goals
were not met. At the same meeting, Jansky announced that
three company officials, including the plant manager of the
Saint Peters facility, were being replaced.
Later that day, Nancy Coleman and Steve Beckerman, both
supervisors in the production department, held a joint meeting
with a group of OTTs at which they discussed what had been
communicated to them by Jansky. Coleman began the meeting.
She discussed the new production and on-time shipping goals
and told employees that they had 28 days to turn things around
“or else.” One attendee asked what Coleman meant by “or
else,” and Coleman looked at her notes and then said, “or else”
they “would be without jobs.”11 Coleman also told employees

10 The Respondent’s profits in the second quarter of 2002 were less
than its losses during the first quarter of 2002. Overall for 2002, the
Respondent showed a net loss of $5 million, although it would have
shown a profit of approximately $50 million if not for a special ac-
counting charge that arose out of the transactions surrounding TPG’s
purchase of the Respondent.
11 Joann Schleeper and Annette Sederquist, both production employ-
ees who attended the meeting, testified credibly to these statements by
Coleman. (Tr. 361–362, 371–372.) Coleman admitted that she talked
about the goals and the 28-day time period, but denied that she used the
phrase “or else,” and also denied that she answered a question by indi-
cating that employees could lose their jobs if the goals were not met.
The testimony by Schleeper and Sederquist was detailed and quite
consistent and I found it more credible than Coleman’s denials. I also
considered the fact that when Beckerman, the other supervisory official
at the meeting, testified on behalf of the Respondent, he did not deny
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1182
that she “had just recently been called back [from layoff] and
that for seven months . . . had looked for a job and was not able
to find one really that would replace” her job with the Respon-
dent. She said “we should all be thankful for a good place to
work that had good benefits and that paid well that was a good
place of employment.” Coleman also told the employees about
the three company officials who were departing the company
effective that day. During his presentation, Beckerman urged
employees to work “as a team,” “concentrate on [their] jobs and
not focus on the Union.” He said, “Just make sure the union
activity is not becoming a distraction to you guys.” Beckerman
stated that he would like to be able to retire from the Respon-
dent, but that it did not look like he was going to be able to do
that. Coleman and Beckerman also asked the employees to
propose ideas that could help the facility meet the new produc-
tion goals. At some point after Jansky held the July 23 meet-
ing, Coleman also discussed the new goals with Alan Mills, a
maintenance worker and active union supporter who Coleman
did not supervise. Mills asked Coleman what would happen if
the new goals were not met. Coleman’s response was, “I don’t
know but I would sure hate to see the plant close.”
Charles “Buddy” Mueller is a maintenance operating super-
visor at the Saint Peters facility who attended Jansky’s July 23
meeting. Afterwards, Mueller had a meeting with maintenance
employees he supervised. Mueller described the new produc-
tion and on-time shipping goals. He also set forth what he and
the maintenance department coaches wanted to do to help
achieve the goals. Mueller told the production employees that
maintenance employees would no longer be permitted to work
on personal projects at the shop or to bring in outside materials
such as newspapers and magazines. Internet access in the shops
would be discontinued. Mueller stated that employees would
be required to take their breaks in the breakroom, not in the
maintenance shops, and to clock out during their lunch breaks.
Mueller advised the employees that they should expect to re-
ceive temporary assignments and to move more frequently
between production areas. The point of these changes, accord-
ing to Mueller, was to make sure that the maintenance employ-
ees spent more time on the manufacturing floor working on
equipment and less time in the shop.
Prior to July 2002, maintenance employees at the Saint Pe-
ters facility had been permitted to take their breaks anywhere
they chose other than a production area. They were also per-
mitted to work on personal projects in the shop during their
own time and did so on all shifts. The Respondent did not give
the Union notice or an opportunity to bargain before instituting
the rules restricting maintenance employees to the breakroom
during their breaks and prohibiting outside projects and materi-
als from being brought into the shop. After approximately 4
weeks, some employees resumed bringing personal projects to
work and taking breaks in the shop.
C. Union Campaign
The Union began its campaign to represent hourly mainte-
nance and production employees at the Saint Peters facility in

either that Coleman used the term “or else,” or that Coleman had said
employees could lose their jobs.
February 2002. In March or April 2002, employees began to
wear prounion buttons in the workplace. Over 100 employees
could be seen wearing these buttons at the facility at any given
time.12 Employees also began to distribute prounion handbills
in front of the facility. They distributed the materials on 15 to
20 occasions and there were 40 to 60 different handbills. Dur-
ing the union campaign, at least two employees, Allen Mills
and Avis High, displayed prounion messages on vehicles that
they took to work.
On April 23, the Union filed a petition to represent the Re-
spondent’s maintenance employees, and, as discussed above, a
representation election was held on June 5 and 6 at which main-
tenance employees voted in favor of the Union by a two-to-one
margin. On October 24, the Board certified the Union as the
collective-bargaining representative of the hourly maintenance
employees at the Respondent’s Saint Peters’ facility.
The Union also sought to represent a unit comprised of
hourly production employees at the Saint Peters’ facility. On
May 31 the Union petitioned to represent these employees and
on June 28 the Board issued a decision directing that the elec-
tion be held starting on July 30, 2002. However, prior to the
scheduled election, the Union filed an unfair labor practice
charge that blocked the election.
D. Respondent’s Actions After the Start of the Union
Campaign
The Respondent found out about the Union’s organizing ef-
fort almost as soon as it started, and responded swiftly. An-
drew Ploeger, the Respondent’s human resources manager,
questioned supervisory personnel to see what they knew about
the organizing campaign and asked them to report to him on
what they gleaned from employees. The Respondent made an
effort to determine who the leaders of the union campaign were
among its employees. By February 26, Ploeger prepared a
memorandum setting forth what he had learned and what he
thought needed to be done by the company to respond. In the
memorandum, he reported that a meeting had taken place be-
tween a representative of the Union and employees of the com-
pany. He reported on the issues raised at the meeting, the loca-
tion of the meeting, the approximate number of employees who
attended, and the shift on which most of the attendees worked.
Ploeger stated the issues that concerned employees were: the
reductions in pay, retirement benefits, and life insurance; job
security; the possible institution of a 12-hour shift; and manda-
tory overtime. Ploeger recommended that the Respondent react
by: reiterating to management officials “how important it is for
them, that [the Saint Peters] facility remain union free”; train-
ing management to help the Respondent “legally implement our
response”; holding team meetings to discuss the value of the
stock options that employees had been granted; making a deci-
sion about shifts and schedules; and, considering the implemen-
tation of a profit sharing plan in 2003. Ploeger stated that,
based on what he had learned from supervisors, the employees
supporting the effort to unionize “could involve our solid citi-

12 Since the Respondent ran three shifts per day at the Saint Peters
facility, this apparently would mean that over 300 of the Respondent’s
700 hourly employees wore prounion buttons at the facility.
MEMC ELECTRONIC MATERIALS, INC. 1183
zens with leadership ability.” In early March, the human re-
sources department informed management that the Union had
made a formal invitation to all hourly employees at the Saint
Peters facility to meet with the Union on March 12, 2002.
The Respondent began to keep lists in which it recorded
whether particular employees supported the Union or the com-
pany. Some of these lists also stated whether the Respondent
viewed the employee as a “leader” or a “follower,”13 whether
the Respondent viewed the individual as a “target for support,”
what the individual’s particular “issues or complaints” were,
and who might be able to influence the employee. For the
maintenance employees the list was updated as late as May
29—7 days before the start of the election.
During the period leading up to the representation election
for maintenance employees, the Respondent conducted a large
number of meetings to state, and advocate for, the Respon-
dent’s position opposing unionization. At the time of the elec-
tion there were approximately 115 eligible maintenance em-
ployees. Ploeger and Henry Midgett (plant manager) met with
the maintenance employees in groups of 15 to 20 and had ap-
proximately 10 to 12 meetings per week for a period of 3 or 4
weeks. In other words, the Respondent held between 30 and 48
antiunion meetings with eligible employees over the course of
the month prior to the election.
In addition to these meetings, Ploeger and Midgett held a
number of larger meetings on May 10 at which they informed
hourly employees that effective June 1 the Respondent would
reverse half of the 10 percent, “permanent,” wage reduction
announced 6 months earlier. This increase would take effect
less than a week before the representation election.14 The Re-
spondent indicated to employees that this positive change in
compensation was made possible by the Respondent’s im-
proved financial situation and productivity. During the same
meetings, the Respondent’s officials told employees that the
Respondent might compensate employees for the other half of
the wage reduction by making lump sum payments of some
type later in the year. Employees objected to the idea that they

13 Although I did not credit Henry Midgett’s testimony regarding
some disputed matters, I do credit his testimony that on these lists
“leader” referred to persons who were leaders in the workplace, not
leaders of the campaign for, or against, the Union. See American Pine
Lodge Nursing, 325 NLRB 98 fn. 1 (1997) (“A trier of fact is not re-
quired to accept the entirety of a witness’ testimony, but may believe
some and not all of what a witness says.”), enf. granted in part, denied
in part, 164 F.3d 867 (4th Cir. 1999); Excel Container, Inc., 325 NLRB
17 fn. 1 (1997) (nothing is more common in all kinds of judicial deci-
sions than to believe some and not all, of a witness’ testimony). I reach
this conclusion because in a number of instances employees were listed
as “leaders,” at the same time that the section regarding their union
sympathies was left blank. If “leader” meant a leader with respect to
the union campaign, then I would expect that the union sympathies of
everyone identified as a “leader” would also be known. Moreover,
some of the union supporters who were identified as “leaders,” were
also identified as targets for persuasion by the Respondent. I would not
expect that the Respondent would see the employees who were leading
the union drive as persons particularly susceptible to persuasion.
14 The employees would not receive the first paychecks reflecting the
higher wage rate until shortly after the election, but those paychecks
covered a time period that began before the election.
would receive lump sum payments instead of restoration of
their hourly wage rate. The June 1 pay restoration took place as
announced. At around the same time, the Respondent also
restored a portion of the recent wage reductions that affected
employees at other facilities in the United States and around the
world.15
In addition to the many antiunion meetings conducted by
Ploeger and Midgett, the Respondent’s CEO, Nabeel Gareeb,
met with the maintenance employees. Gareeb’s meetings with
maintenance employees took place at the end of May16—
approximately 8 days before the representation election for
maintenance employees. Each of these prearranged meetings
was attended by between 10 and 17 maintenance employees.
According to one employee of 13 years, it was completely un-
precedented for a CEO of the Respondent to meet directly with
hourly employees at the Saint Peters facility. Gareeb himself
testified at trial that he met in this manner exclusively with
hourly workers at the Saint Peters facility—i.e., with employees
at the one facility where a union drive was underway.17 Gareeb
also admitted that, to start, he met only with the hourly mainte-
nance employees at the Saint Peters facility—i.e., with that
group of employees at the Saint Peters facility who were not
only the subject of a union campaign, but were about to vote in
a representation election. He put off meeting with the hourly
production employees until the Union filed an election petition
for that group.
Employees’ accounts of the various meetings conducted by
Gareeb are fairly consistent and indicate that Gareeb altered his
presentation to only a limited extent from meeting to meeting.
Gareeb would ask every attendee to state what his or her most
important complaint was, and to identify a solution. As em-
ployees spoke, Gareeb generally took notes. The employees
raised a variety of issues, including the reduction in wages and
benefits, proposed changes in work schedules, forced overtime,
and inequities between the treatment of hourly employees and
management. At one or more of the meetings, Gareeb prom-
ised to look into the issues, and stated that he could address
some of the complaints that had been raised, but that he needed
a few months. He said employees had already seen results
regarding some of their issues and that it would be a lot easier
for him to address other issues if the employees did not involve
a third party. During at least one of the meetings he asked the
employees to give him “a chance prior to voting a union in the
shop . . . for 3 to 6 months to turn things around.” Gareeb told
employees that the intervention of “third parties will always
increase mistrust and the lack of communication and under-
standing.” Gareeb testified that the third parties he was talking
about were unions. At least one employee remembered Gareeb
explicitly stating that a “union is like a third party.” In one or
more instances, Gareeb stated that he did not like third parties.
He told the employees that he “prefer[red] interacting directly

15 During a meeting on May 6, 2002, the compensation committee of
the Respondent’s board of directors had authorized the reversal of half
of the pay reductions.
16 Gareeb had begun working for the Respondent only weeks earlier,
in April 2002.
17 Gareeb testified that he talked to employees at other facilities, but
did so only informally as he walked the floor at those facilities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1184
. . . resolving the issue one-on-one or two-on-one.” He said
that he had recently gone through a divorce, and that he had
made a reasonable offer to his wife, but then she had elected to
involve a lawyer and that as a result of the involvement of this
third-party his wife had ended up getting less than if she had
dealt with him directly.18 In at least one of the meetings, Ga-
reeb stated that “people who get lawyers and have third parties
involved usually lose.”19
The most recent version of the Respondent’s employee
handbook, which had last been distributed in 1999, states:
“Employees are not permitted to solicit other employees during
working time or to distribute literature at any time for any pur-
pose.” As discussed above, on or after July 23, 2002, Mueller
told employees that they would no longer be permitted to bring
outside materials into the maintenance shops. There is no other
evidence indicating that the handbook provisions regarding
solicitation and distribution were enforced, or reaffirmed, by
the Respondent after the start of the union campaign. There is,
likewise, no evidence that the Respondent acted to disavow or
rescind the prohibitions on solicitation and distribution at any
time before or after the union campaign commenced.
In July 2002, the Respondent’s human resources department
distributed a survey asking production employees at the Saint
Peters facility for their views on overtime policy. Betty Brock,

18 The notes that Gareeb created in preparation for this series of
meetings show that he had planned in advance to discuss his divorce
and the role that third parties played in it.
19 At trial, Gareeb denied that he had participated in “the plant’s
campaign to educate employees or to try and persuade them not to vote
for the Union.” (Tr. 842.) In light of the evidence regarding the meet-
ings that Gareeb conducted with hourly employees at the Saint Peters
plant, Gareeb’s denial is clearly false and, in my view, his willingness
to make such a denial under oath reflects negatively on his overall
credibility. The record is clear that the only hourly employees with
whom Gareeb arranged to hold organized meetings were those at the
facility where a union campaign was underway. At that plant he chose
to meet first with the group of employees—hourly maintenance work-
ers—who were about to vote in a representation election. My view of
Gareeb’s credibility is further dimmed by his testimony that the union
election came up at the meetings because “people brought it up, but to
me, you know, I focused—I tried to focus on what the issues were, as
opposed to the union or non-union.” (Tr. 838.) Under cross-
examination Gareeb conceded that he was the one who brought up the
issue of “third parties,” by which he meant unions, and his preparatory
notes for the meetings indicate that he had always intended to discuss
the subject of unions at length. Similarly, Gareeb’s testimony that “I
don’t think I said anything specific about unions,” (Tr. 839), is either a
lie, or an intentional effort to mislead and evade, given his subsequent
admission that when he discussed third parties at the meetings he meant
unions (Tr. 858, 860). In light of the evidence, I find Gareeb’s sugges-
tion that the purpose of his meetings with the 115 or so maintenance
employees eligible to vote in the upcoming union election was not to
influence their votes, but rather to investigate the poor health of a com-
pany with approximately 4000 employees to be patently false. Gareeb’s
apparent expectation that such an obvious misrepresentation would be
believed demonstrates an unusual level of audacity. My conclusion
regarding Gareeb’s credibility is also based on his demeanor and testi-
mony. He was very expansive during direct examination, giving rather
lengthy speeches about his “philosophy” and subjects tenuously related
to the question posed. During cross-examination, however, he became
evasive and, sometimes, unnecessarily defensive.
a representative in the human relations department, told em-
ployees that the surveys would be used to help formulate a new
policy regarding overtime. As discussed above, a number of
the Respondent’s employees were not pleased with the way
overtime work was being distributed, and, in particular, with
the way forced overtime work was being assigned. In his Feb-
ruary 26 memorandum, Ploeger identified mandatory overtime
as one of the issues motivating the organizational activity.
Overtime policy was also one of the subjects that hourly em-
ployees complained about during the meetings Gareeb con-
ducted with them. In May and June 2002, a group of employ-
ees approached the Respondent’s officials on at least three oc-
casions to complain about the way overtime work was being
assigned. The questions in the July survey concerned problems
with the current overtime policy and the desirability of certain
changes. In August, the Respondent implemented a pilot pro-
gram in one department at the plant that altered the way forced
overtime was assigned. In March 2003, the Respondent prom-
ulgated a new overtime policy for production employees. The
new policy differed from the old one in that it applied to all
areas of the plant, whereas previously different sec-
tions/departments had been permitted to adopt their own over-
time rules. The new policy also reduced supervisors’ discretion
in the assignment of forced overtime. Under the new policy,
overtime would generally be distributed based on hours and
seniority.
On August 19, 2002, Ploeger and McLaughlin held meetings
with hourly maintenance and production employees at the Saint
Peters facility and announced that the company would reverse
the remaining half of the wage reduction effective September 1.
Ploeger told employees that a reason for this change was to
“eliminate [a] significant source of distraction and get on to the
critical business issue of becoming more competitive.” The
Respondent’s officials commented on the need to “heal wounds
between hourly and salaried groups.” Employees were told that
productivity had improved, but not to the target levels man-
agement had set. The pay restoration took place, as announced,
on September 1. At the August 19 meeting, the Respondent
also informed employees that the Respondent would institute a
quarterly incentive pay plan beginning in the fourth quarter of
2002, and that incentive pay for that quarter would be received
sometime in January 2003.20 The new incentive plan was im-
plemented on October 1, 2002, and the first quarterly payout
was made in January 2003. The changes announced on August
19 were different than what the Respondent’s compensation

20 The record does not support the Respondent’s contention that,
prior to the June election, company officials had told employees that
the Respondent would announce a final decision regarding compensa-
tion restoration by August 1, 2002. This contention is based on Ga-
reeb’s testimony that “we may have said somewhere along that we
were—that we would announce what we would do for the second part
of the restoration by August 1st.” (Tr. 830.) However, Gareeb did not
testify when employees were informed that the Respondent would
make the announcement by August 1, or whether they were informed
prior to the June election. Moreover, for reasons discussed above, I do
not consider Gareeb a credible witness and, in any case, his testimony
here is uncertain on its face and is not corroborated by other credible
evidence.
MEMC ELECTRONIC MATERIALS, INC. 1185
committee had authorized at a meeting on July 25. The com-
pensation committee approved an incentive pay plan for hourly
employees in the United States, but it did not approve restora-
tion of the second half of the base pay reduction for those em-
ployees even though it did so for salaried employees. The Re-
spondent’s managers, however, decided to manipulate the com-
pensation committee’s resolution—implementing a smaller
incentive pay program for hourly employees than was approved
by the compensation committee in order to cover the cost of
restoring base pay.
E. Discharge of Avis High
Avis High worked for the Respondent as an hourly produc-
tion employee at the Saint Peters facility for 15 years. She was
discharged on October 18, 2002. Claudia Reed was High’s
regular supervisor until October 2002, when Coleman assumed
Reed’s responsibilities. In September 2002, High was tempo-
rarily assigned to light duty work due to an injury, and in Octo-
ber she returned to her regular job. While High was assigned to
light duty, Cindy Earle was her supervisor. Prior to 2002, the
only discipline of record for High was a 1997 letter criticizing
her for poor attendance.
High supported the Union during the 2002 campaign. She
attended a union meeting on March 12, 2002, and at that time
signed a petition. The next day at work she wore a button that
read, “I Am Voting Yes,” and she continued to wear this button
in the workplace until the time of her termination. Display of
such a button was not unusual among the employees at the
Saint Peters facility. Over 300 of the 700 hourly employees at
the Saint Peters facility wore prounion buttons. High also
showed support for the Union by writing “union vote yes,” in
six-inch-high letters on the back window of the vehicle she
parked in the Respondent’s parking lot. The record does not
show that High was among the 40 or so employees who distrib-
uted handbills, or that she otherwise took part in organized
outreach on behalf of the Union. There was also no evidence
that High had any position or responsibilities within the Union
or the organizing campaign. Nonetheless, High’s support for
the Union did not escape the notice of supervisory and man-
agement personnel at the Saint Peters facility. Both Ploeger
and Wendy Decker (an engineer with supervisory authority)
observed that High wore a prounion button, and High was iden-
tified by the Respondent as prounion on a list it compiled re-
garding employees’ sympathies with respect to the organiza-
tional campaign.
The record shows that High was a very prickly employee,
particularly about the details of her assignment. In one inci-
dent, on May 2, 2002, High was in the breakroom when a co-
worker, Joe DeGrasso, suggested that a particular task was
going to be assigned to her permanently. High became upset
and, in the presence of a number of coworkers, told DeGrasso,
“You can go fuck someone, pull it out and suck your own
dick.” Later that day, High was called to a meeting with Reed
and Brock. Brock asked High about the incident with De-
Grasso, and, in particular, asked what High had said to De-
Grasso. High admitted that she had said something not “very
nice,” but refused to tell Reed and Brock what it was. On May
7, 2002, High received a letter suspending her for 3 days for
“using extreme and vulgar profanity” with one of her cowork-
ers, “while several other coworkers watched and listened to
you.” The letter, which was signed by Reed, stated that such
behavior would not be tolerated and that employees should not
be exposed to “intimidation, violence, or aggressive behavior.”
The letter concluded, “Please consider this your Final Warn-
ing.” (Emphasis in original).
In September 2002, while High was assigned to “light duty,”
John Jansky (Respondent’s corporate vice president), told
Cindy Earle (High’s temporary supervisor), that he had ob-
served High sleeping on the job. Earle doubted that High was
actually sleeping. Still, Earle thought it wise to give High a
“heads up” about Jansky’s perception.21 Earle met with High
and told her that “a corporate person” had been in the depart-
ment and had “perceived” that High was sleeping. Earle said
that she did not believe High was sleeping, but told High to
make an effort not to appear “too relaxed” and “kicked back,”
because the corporate official might visit the department again.
High responded by accusing Earle of harassing her. Earle was
“taken aback” by High’s reaction. Earle discussed High’s reac-
tion with Clarence “Junior” Wilp, a higher-level supervisor.
Wilp believed that High’s reaction was inappropriate, and he
told Earle to give a written account of what had happened to the
human resources department.
On October 8, 2002, Wendy Decker, an engineer who had
authority to give direction to hourly production employees, told
High to obtain a number of samples of the Respondent’s recent
product and deliver the samples to the laboratory no later than 4
p.m. that day. Taking samples to the lab was apparently not a
task that High did on a regular basis; however, the testimony
showed that High, as the only employee working in the finished
goods area at the time, was an appropriate person for Decker to
assign the task. In the past, Decker has directed at least four
other production employees in the finished goods area to per-
form this type of task. On October 9, Decker discovered that
High had not delivered the samples to the laboratory as she had
been directed, causing a significant delay in production and
shipping. This incident came to the attention of Coleman,
High’s supervisor, but Coleman did not ask High about the
incident or otherwise investigate it.22

21 As discussed above, Jansky was the corporate official who in July
2002, had announced the Respondent’s very demanding new goals for
production and on-time shipping.
22 High denied that Decker asked her to obtain samples and take
them to the finished goods area. I credit Decker’s contrary testimony,
which was corroborated by contemporaneous documentation. Decker
was not an unduly defensive or hostile witness and her testimony was
free of significant contradictions. On the other hand, High appeared to
be an unreliable witness based on her demeanor and testimony. High’s
memory was demonstrably faulty about some matters with respect to
which she professed utter certainty. For example, High testified that
she was “very certain” that she attended a meeting in July 2002 that
was conducted by Gareeb and attended by both hourly and supervisory
employees. High gave detailed testimony regarding, among other
things, where other individuals were sitting, the facial expressions of a
supervisor, Gareeb’s appearance, and statements she herself made to a
coworker. However, the record, including the testimony of other wit-
nesses for the General Counsel, shows that Gareeb never conducted
such a meeting for hourly and supervisory employees. High also
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1186
Two days later, on October 10, at about 1:45 p.m., Decker
again came to High with an assignment. Decker directed High
to enter certain information on 30 forms relating to product that
had been improperly processed by other employees. Decker
told her that after filling in the information, High should take
the forms to the final shipping area, approximately a 5-minute
walk away, and associate the forms with the misprocessed ma-
terials. It was important that the suspect product be quarantined
until after the Respondent determined whether the processing
error had degraded the product to an unacceptable degree.
Prior to giving this assignment to High, Decker obtained Cole-
man’s approval for doing so. Decker chose High because the
finished goods area, where High was assigned, was not very
busy.23 Indeed, when Decker came to High’s workstation to
make the assignment, High was reading a magazine.
At about 3 p.m., Decker returned to the finished goods de-
partment and discovered that High was not there and had
placed the forms on a shelf with a note informing an employee
on the next shift, which started at 4 p.m., to take the forms to
final shipping and associate those forms with the misprocessed
material there.24 Decker considered it improper for High to
pass this important work to the next shift when there was still
an hour to go before the end of High’s own shift. Decker in-
formed Coleman about this, who, in turn sought out High.
Coleman believed that High’s failure to complete the task could
mean that the misprocessed material was not being promptly
quarantined. Coleman located High, who was walking back
towards her work area. Coleman asked to talk to High, but
High continued walking, and so Coleman followed until the
two reached the finished goods area where High was assigned.
Coleman asked High why she had not finished the assignment
regarding the misprocessed material. High responded that she
had placed the necessary information on the forms, but had her
regular job duties to attend to, and had not had time to take the
forms over to the final shipping area. Coleman asked what
other work High had accomplished. High responded that if
Coleman wanted to know what work had come “through the
window” Coleman should “look it up on the computer.” At
some point during the incident High’s sister, Julie Uhrham,

claimed to be certain that there was no production problem at the Saint
Peters facility on October 8 (and thus, presumably, no necessity for
sample testing), however, documentary and testimonial evidence estab-
lish that there was such a problem.
For these reasons, I also do not consider High’s testimony regarding
the meeting she says she attended with Gareeb to be reliable.
23 The General Counsel suggests that the assignment should not have
been given to High because she was not the employee who identified
the problem and the Respondent’s employee handbook states that the
person who identifies that material has been misprocessed is the one
who is supposed to “initiate” the forms. I reject this flimsy argument.
Decker had already initiated the forms and completed much of the
information required on them before she gave those forms to High.
High was not being asked to initiate the forms, but to add certain in-
formation and deliver the forms to final shipping.
24 The Respondent has a procedure under which an employee who
cannot complete an assigned task before the end of his or her shift,
informs an employee on the next shift what is left to do. This process is
referred to by the Respondent’s employees as “tying in,” and can be
accomplished either verbally or in writing.
who is also an employee of the Respondent, arrived. As Cole-
man was leaving, High complained to Uhrham that Coleman
was harassing her and that she was “just sick of it.” Coleman
overheard this and stated: “Avis, I’m not harassing you. I was
simply just asking you some questions.” High responded, “You
call it what you want to, but it’s harassment.” High began writ-
ing something down, and stated that she had to document the
harassment. Both Coleman and High became angry during the
exchange. Afterwards Coleman reviewed computer records
and ascertained that High had not been unusually busy with her
regular duties during the period when the special assignment
from Decker was pending.
Coleman discussed the matter with Wilp, her superior.
Coleman told Wilp that High’s behavior was creating a “hostile
work environment” for “any kind of salaried person who tries
to talk to or deal with her.” Coleman told Wilp that she did not
“want to deal with it anymore.” Wilp and Coleman then talked
to Brock, of the human resources department, about the inci-
dent. Wilp testified credibly that he felt that the matter had to
be taken to the human resources department because High had
not completed assigned tasks on two occasions and had accused
Coleman of harassment when Coleman tried to talk to her about
the second incident. At the meeting with Brock, Wilp recom-
mended that the Respondent terminate High. Brock told Wilp
that High should be placed on administrative leave while the
human resources department investigated the matter. After this
meeting, Wilp spoke to High and informed her that she was
suspended pending investigation.
It was Brock’s responsibility to investigate the allegations
about High, but Brock did not testify and the record is unclear
about exactly what she did, or did not do, to investigate. At
some point Brock informed Frank McLaughlin, who had re-
placed Midgett as plant manager on July 23, about the matter.
McLaughlin reviewed the documentation he received about the
incidents, and discussed High’s behavior with Brock, Wilp, and
Coleman. Brock and Wilp, as well as Ploeger, recommended
that High be discharged. The record does not show that anyone
involved in the decision opposed discharging High. Brock’s
recommendation was made in a memorandum that discussed the
October 8 and 10 incidents. The memorandum also mentioned
as “previous discipline,” High’s suspension in May 2002, and
the incident in September 2002, when High was alleged to have
been sleeping on the job. Based on the information he obtained
through this process, McLaughlin made the final decision to
terminate High. He testified that his decision was based on a
number of factors—the suspension that High had received in
May 2002 for vulgar statements to a coworker, the repeated
incidents of poor performance, the history of belligerence to-
wards supervisors, and the lack of improvement.
After High was discharged, she appealed the decision using
the Respondent’s internal review procedures. In November, a
meeting was held in which High, Alan Mills (an employee she
designated to assist her), Ploeger, and McLaughlin, participated.
High’s discharge and the allegations against her were discussed,
but apparently the discussions did not persuade the Respondent
to reverse the termination. Ploeger provided High with a letter,
dated November 22, 2002, stating that the reasons for High’s
discharge were: the May 2002 incident involving vulgar com-
MEMC ELECTRONIC MATERIALS, INC. 1187
ments to a coworker; the September 2002 incident when High
was observed sleeping at work; and the October 2002 incidents
involving Decker and Coleman.
In an effort to show that High’s discharge was for unlawful
reasons, the General Counsel discusses evidence of lesser dis-
cipline meted out to other employees at the Saint Peters facil-
ity—Bart Sandrowski, Matthew Burger, David Sommer—
during the period from January 2001 to February 2003. In none
of these cases were Decker, Earle, Coleman, Wilp, or
McLaughlin shown to be involved in issuing the discipline.
Ploeger is informed about all suspensions, and Brock is con-
sulted about all disciplinary letters, but the record does not
reveal whether those individuals played a significant part in the
disciplinary decisions involving Sandrowski, Burger, and
Sommer. In the earliest of the three incidents of discipline
identified by the General Counsel, the Respondent gave
Sandrowski a final warning letter on January 4, 2001, and
stated that the discipline was the result of six or more episodes
in which Sandrowksi demonstrated erratic, disruptive, and hos-
tile behavior. In the most recent incident Sandrowski had
stated, “If I go over there, I might kill someone.” In the first
incident, approximately 6 months earlier, he received a verbal
warning for unsafe driving practices. On other occasions he
was cited for “poor team behavior” and “confrontative behav-
ior” with a coworker. In all, during a 6-month period,
Sandrowski received four verbal warnings and one partial day
suspension prior to the issuance of the final warning. Pursuant
to the terms of the final warning, Sandrowski was required to
attend an employee assistance program on his own time as a
condition of continued employment.
On May 2, 2002, the Respondent issued a disciplinary letter
and 1-day suspension to Matthew Burger for negligence. Ac-
cording to the letter, Burger’s negligence had resulted in over
$27,000 of damage to equipment and loss of product. The let-
ter notes that Burger had shown “no remorse,” and had failed to
turn in paperwork related to the incident. On February 6, 2003,
the Respondent issued a final warning letter to David Sommer.
The letter states that Sommer had refused assignments on two
occasions, and had generally demonstrated “poor work attitude,
lack of teamwork and respect toward . . . coworkers.”
F. Complaint Allegations
The complaint alleges that the Respondent interfered with,
restrained, and coerced employees in the exercise of their Sec-
tion 7 rights in violation of Section 8(a)(1) when: on about
May 10, 2002, Midgett and Ploeger told employees that the
Respondent was reversing half of an earlier wage reduction,
and might reverse the remaining half of the wage reduction in
the fourth quarter of 2002; on about May 29, 2002, Gareeb
solicited employee grievances, promised to remedy many of
those grievances if employees refrained from union organiza-
tional activity, and implied that selection of the Union would
result in loss of benefits; in June and July 2002, Brock solicited
employee grievances by distributing an overtime survey and
impliedly promised to remedy the grievances regarding over-
time if employees refrained from organizational activity; on
about July 23, 2002, Coleman and Beckerman impliedly threat-
ened employees with plant closure if they selected the Union as
their collective-bargaining representative; on August 19, 2002,
Jansky and McLaughlin told employees that the Respondent
would reverse the other half of the wage cut effective Septem-
ber 1, 2002, and would implement a quarterly incentive pay
plan effective October 1, 2002; since January 26, 2002, the
Respondent maintained an employee handbook provision that
prohibited employees from distributing literature at any time
for any purpose. The complaint also alleges that because em-
ployees engaged in union and concerted activities, and in order
to discourage such activities, the Respondent discriminated in
regard to the hire or tenure or terms and conditions of employ-
ment in violation of Section 8(a)(1) and (3) when: on about
June 1, 2002, it reversed half of the earlier wage cut; on about
September 1, 2002, it reversed the other half of the wage cut;
on about October 1, 2002, it implemented a quarterly incentive
pay plan; on about October 17, 2002, it discharged High; and
on about January 22, 2003, it implemented a new overtime
policy for production employees. The complaint further alleges
that the Respondent has failed and refused to bargain in good
faith with the exclusive collective-bargaining representative of
its employees in violation of Section 8(a)(1) and (5) when it
made the following changes without giving the Union an op-
portunity to bargain: on about July 23, 2002, told employees
that they had to take their breaks in the designated break area,
and prohibited employees from bringing personal projects to
work; on about September 1, 2002, reversed the second half of
the wage cut; and, on about October 1, 2002, implemented a
quarterly incentive plan.
III. ANALYSIS
A. Wage Restoration in June 2002
On May 10, the Respondent told hourly employees at the
Saint Peters facility that, effective June 1, it would reverse half
of the wage cut that it earlier imposed on them and that it might
later compensate them for the remainder of the cut. The Re-
spondent made this announcement 7 days after it agreed to a
representation election for maintenance employees, and 25 days
before that election was to commence. The first half of the
wage restoration went into effect, as promised, on June 1—just
4 days before the scheduled election. The General Counsel
alleges that the Respondent unlawfully interfered with em-
ployee’s exercise of their Section 7 rights, in violation of Sec-
tion 8(a)(1), on May 10 when it announced the wage restora-
tion. The General Counsel also alleges that when the Respon-
dent implemented the wage restoration on June 1, it violated
Section 8(a)(1) and (3) by discriminating as to terms and condi-
tions of employment in an effort to discourage union and con-
certed activities.
The Supreme Court has held that an employer violates the
Act when it grants a wage increase or other benefits “while a
representation election is pending, for the purpose of inducing
employees to vote against the union.” NLRB v. Exchange Parts
Co., 375 U.S. 405, 409 (1964). The Court explained that Sec-
tion 8(a)(1) “prohibits not only intrusive threats and promises
but also conduct immediately favorable to employees which is
undertaken with the express purpose of impinging upon their
freedom of choice for or against unionization and is reasonably
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1188
calculated to have that effect.” Id. The Exchange Parts stan-
dard applies to allegations both that an employer unlawfully
announced a benefit in violation of Section 8(a)(1), see, e.g.,
Village Thrift Store, 272 NLRB 572 (1983), and that it unlaw-
fully implemented a benefit in violation of Section 8(a)(3), see
In Home Health, Inc., 334 NLRB 281, 284 (2001), and Perdue
Farms, 323 NLRB 345, 352–353 (1997), enf. denied in relevant
part on other grounds 144 F.3d 830 (D.C. Cir. 1998).25
The employer’s “legal duty in deciding whether to grant
benefits while a representation proceeding is pending is to de-
cide the question precisely as it would if the union were not on
the scene.” United Airlines Services, Corp., 290 NLRB 954
(1988). To determine whether an employer has met, or failed
to meet this legal duty, the Board considers whether all the
evidence, including the employer’s explanation for the timing
of the increase, supports “an inference of improper motivation
and interference with employee free choice.” Holly Farms
Corp., 311 NLRB 273, 274 (1993), enfd. 48 F.3d 1360 (4th Cir.
1995), affd. 517 U.S. 392 (1996). Among the factors used to
determine whether a preelection grant of benefit is unlawfully
motivated are: the size of the benefit conferred in relation to the
stated purpose for granting it; the number of employees receiv-
ing it; how employees reasonably would view the purpose of
the benefit; the timing of the benefit, Perdue Farms, 323 NLRB
at 352; the employer’s explanation for the timing of the benefit;
prior statements by the employer indicating that the benefit
would not be granted, Lampi, L.L.C., 322 NLRB 502, 503, 506
(1996), Holly Farms Corp., 311 NLRB at 274; whether the
grant of benefit was consistent with the employer’s prior prac-
tice, Lampi, L.L.C., 322 NLRB at 502, Marine World USA, 236
NLRB 89, 90 (1978); and the employer’s knowledge that the
benefit involved was an important issue in the union organizing
effort, Huck Store Fixture Co., 334 NLRB 119, 123 (2001),
enfd. 327 F.3d 528 (7th Cir. 2003).
The evidence here supports an inference that the Respon-
dent’s May 10 announcement and its grant of the wage restora-
tion effective June 1 had the purpose of inducing employees to
vote against the Union. At the time of these actions, the Re-
spondent was well aware that employee discontent over the
“permanent” wage reductions was a major, and probably the
major, issue driving the organizing campaign. The Respon-
dent’s decision to reverse the wage reduction for hourly em-
ployees was directly contrary to its pronouncements, prior to
the start of the union campaign, that those reductions were per-
manent and that no raises would be granted in 2002. The tim-
ing of the announcement and grant of benefits so shortly after a
schedule was set for a representation election and so soon be-
fore that election was held, is very suspicious, especially in

25 The Respondent argues that the Board “should abandon the pater-
nalistic and unwarranted assumptions underlying the Exchange Parts
doctrine.” (R. Br. at 45–49.) If that argument has any merits, those
merits are for the Board to consider, not me. I am bound to follow
Board precedent applying the Supreme Court’s decision. See Hebert
Industrial Insulation Corp., 312 NLRB 602, 608 (1993). Lumber &
Mill Employers Assn., 265 NLRB 199 fn. 2 (1982), enfd. 736 F.2d 507
(9th Cir. 1984), cert. denied 469 U.S. 934 (1984); Los Angeles New
Hospital, 244 NLRB 960, 962 fn. 4 (1979), enfd. 640 F.2d 1017 (9th
Cir. 1981).
light of the Respondent’s earlier representations that the wage
reductions were permanent. Moreover, the Respondent failed
to produce any documentation showing that, before the repre-
sentation petition was filed, the Respondent planned to grant, or
even had discussed granting, wage restoration to the hourly
employees in 2002. Nor was there credible evidence indicating
that, in the past, the Respondent had a practice of routinely
granting wage increases in May or June.
The record also shows that the Respondent bore antiunion
animus. The Respondent’s employee handbook states that
remaining “union-free” is an objective of the company. More
importantly, the record demonstrates that the Respondent was
willing to resort to unlawful means to further that objective. In
a case decided earlier this year, the Board found that the Re-
spondent unlawfully refused to bargain with the Union even
after it was properly certified as the collective-bargaining rep-
resentative of hourly maintenance employees. 338 NLRB No.
142 (2003).26 Indeed, at the time of the trial in the instant mat-
ter the Respondent was still refusing to bargain with the Union
even though the Board had ordered it to do so. In addition,
Ploeger, the Respondent’s human resources manager, has made
statements acknowledging that a desire to stay union-free col-
ored the Respondent’s decisionmaking about employees’ terms
and conditions of employment during the union campaign. (Tr.
87–88, 106–107.) Similarly, Midgett admitted that the Re-
spondent made an effort to address employee complaints during
the organizational campaign, in part, with the goal of remaining
union-free. (Tr. 514.) I also found telling, the Respondent’s
unsuccessful effort to scuttle the maintenance employees repre-
sentation election. As discussed above, the Respondent had
previously entered into an election agreement, but then tried to
withdraw from that agreement on June 4 (one day before the
scheduled election), and subsequently sought an emergency
stay to keep the Board from counting the ballots employees had
cast. Also as found below, Gareeb, unlawfully threatened em-
ployees with adverse consequences if they elected to have a
collective-bargaining representative.
I reject the Respondent’s contention that the evidence shows
that the May 10 announcement and June wage restoration were
the result of lawful considerations. A number of the Respon-
dent’s specific arguments do not warrant discussion or can be
disposed of quickly. The Respondent argues that since the Un-
ion prevailed in the June 5 and 6 election, the wage restoration
on June 1 did not discourage union support. The Board has
made clear, however, that whether an employer’s effort to dis-
courage union support succeeds in defeating an organizational
campaign has no bearing on whether that effort was lawful or
not. Hyatt Regency of Memphis, 296 NLRB 289 (1989). The
Respondent also notes that at one of the May 10 meetings an
employee suggested that the wages were being restored because
of the upcoming union election, and that Ploeger responded by
denying this and attributing the action to economic considera-

26 It is proper to rely on the findings and evidence in recent cases
against the Respondent as background in this case. Stark Electric, 327
NLRB 518 fn. 2 (1999); Tama Meat Packing v. NLRB, 575 F.2d 661
(8th Cir. 1978), enfg. as modified 230 NLRB 116 (1977), cert. denied
439 U.S. 1069 (1979).
MEMC ELECTRONIC MATERIALS, INC. 1189
tions. Not surprisingly, the Board has declined to accept such
self-serving denials by a Respondent as persuasive evidence
that a grant of benefit shortly before an election did not have, or
was not perceived by employees as having, the purpose of dis-
couraging employees from supporting the Union. See, e.g.,
Holly Farms, 311 NLRB at 274. Indeed, the fact that an em-
ployee openly raised this suspicion to Ploeger at a public meet-
ing is some evidence of employee perception that the pay resto-
ration was tied to the antiunion campaign.
The Respondent argues that I should not infer an antiunion
motivation for the wage restoration, given that all 2700 of the
employees whose wages were cut in December 2001, had
wages restored at around the same time as the employees who
were scheduled to vote in the June representation election. Of
those employees who had wages restored in or around June
2002, only about 700 were hourly employees at the Saint Peters
facility and of those only 115 were maintenance employees
about to vote. The annual cost of the wage restoration was
about $10 million, the Respondent points out, only $1.8 million
of which was paid to Saint Peters hourly employees. Accord-
ing to the Respondent, it would be unreasonable to believe that
the Respondent provided wage restoration to 2700 employees
in hopes of influencing 115 eligible voters. This argument has
some merit, but after considering the totality of the evidence I
am not persuaded by it. It is true that the hourly employees at
the Saint Peters facility were not the only employees whose
wage reductions were reversed, but it is also true that they were
the only ones who the record shows had their wage reductions
reversed after the Respondent told them that the reductions
were permanent, regardless of economic performance. The
salaried employees who had their wages restored, on the other
hand, had been told from the outset that their wage reductions
were temporary and would be reversed when the Respondent
met its economic targets, thus showing that the Respondent
viewed wage restoration to salaried employees as a separate
issue from wage restoration for hourly employees. Moreover,
although only 115 hourly employees at the Saint Peters facility
were scheduled to vote in a representation election when the
pay restoration was announced, the Respondent knew that the
union campaign was directed at all of the approximately 700
hourly employees working there. In light of these factors I
consider it reasonable to infer that the Respondent had an
unlawful, antiunion, motive when it reversed the wage reduc-
tions for the 700 hourly employees at the Saint Peters facility
even though employees who were not the object of the union
organizing campaign also had their wages restored. See Sears
Roebuck & Co., 305 NLRB 193, 195–196 (1991) (merely
changing benefits at multiple locations, some of which are not
facing an organizing campaign, will not alone establish a lawful
motive).
I am also unpersuaded by the Respondent’s argument that
the wage restoration for the hourly employees at the Saint Pe-
ters facility is explained by the improvement in the Respon-
dent’s economic situation. That is not to say that I reject the
Respondent’s representation that its economic picture had
brightened substantially in 2002 as compared to the prior few
years. However, while I believe that the improvement in the
Respondent’s business explains why the company was able to
reverse the wage reductions for hourly employees at the Saint
Peters facility, it does not explain why the company did reverse
those reductions, given that the company had previously de-
cided that those wage reductions would be permanent and that
no increases would be granted in 2002, irrespective of future
business conditions. The Respondent had previously indicated
that the it was making the wage reductions for hourly employ-
ees permanent because a wage survey showed that those em-
ployees were being overpaid, and because the company wished
to move towards a pay-for-performance wage structure. There
was no evidence that the Respondent’s reversal of its decision
to make the wage reduction permanent followed a discovery
that the wage surveys were inaccurate or out-of-date, or a deci-
sion by the company to abandon or delay implementation of a
pay-for-performance wage structure.
The Respondent also tries to explain its decision to reverse
the “permanent” wage reductions as the product of a new “phi-
losophy” brought to the company by Gareeb when he became
CEO in April 2002. Gareeb testified that his philosophy was
not to cut wages, and to treat salaried and hourly employees the
same. However, based on the totality of the evidence, I decline
to credit Gareeb’s convenient and self-serving statements about
his philosophy. First, as noted earlier, I conclude that Gareeb
was not a credible witness. (See fn. 19.) I have no doubt that
he lied in an effort to minimize and deny his own anti-union
efforts. Id. Moreover, there is no credible corroboration for
Gareeb’s claims about his philosophy. The Respondent did not
show instances in which Gareeb acted on, discussed, or docu-
mented, his supposed philosophy regarding equality and wage
reductions prior to when he arrived at the Respondent in the
midst of the union campaign.
Moreover, even if I believed that Gareeb’s management phi-
losophy would have led the Respondent to reverse half of the
hourly employees’ permanent wage reduction for reasons unre-
lated to the union campaign, that would not explain why the
Respondent chose to announce and implement the wage resto-
ration so shortly before the June election. If the Respondent
did not intend for this action to influence the election, it could
have planned to wait until after the election to announce it.27
The Respondent admits that it had the ability to time-wage
changes in just this way—stating that it intentionally delayed
the later, September 1, wage restoration to occur after the
scheduled election for production employees. (R. Br. at 13; Tr.
542.) Delaying announcement of the June 1 wage restoration
until immediately after the June 5 and 6 election would not
have negatively affected employees if the Respondent made the
wage restoration retroactive by a few days to June 1.
I conclude that the evidence shows that the Respondent’s
May 10, 2002, announcement regarding wage restoration was
made while a representation election was pending for the pur-

27 As it happened, the Union filed a petition on May 31, 2002, to rep-
resent hourly production employees. Therefore, if the Respondent had
planned to wait until shortly after the June 5 and 6 election to announce
the wage restoration, it still would have ended up making the an-
nouncement while a representation proceeding was pending. However,
the Respondent could not have known about this complication at the
time of the May 10 announcement, and has not claimed that it antici-
pated that another petition would be filed prior to the June election.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1190
pose of inducing employees not to vote for, or otherwise sup-
port, the Union, and therefore violated Section 8(a)(1) of the
Act. I further conclude that the grant of wage restoration to
hourly employees at the Saint Peters facility, which took effect
on June 1, 2002, less than a week before a scheduled represen-
tation election, also had the purpose of inducing employees not
to vote for, or otherwise support, the Union and violated Sec-
tion 8(a)(1) and (3) of the Act.
B. September and October 2002 Changes in Compensation
On about August 19, 2002, the Respondent announced that
the company was reversing the second half of the wage reduc-
tion, and instituting a quarterly incentive pay plan for hourly
employees in the United States. The wage restoration was im-
plemented on September 1, 2002, and the quarterly incentive
plan was implemented on October 1, 2002. At the time of these
changes, the Union was engaged in an effort to represent the
Respondent’s hourly production employees at the Saint Peters
facility. Those employees had been scheduled to vote in a rep-
resentation election from July 30 to August 2, but the election
was blocked when the Union filed an unfair labor practice
charge against the Respondent on July 26. The General Counsel
alleges that the August 19 announcements regarding compensa-
tion violated Section 8(a)(1) of the Act, and that the pay resto-
ration and quarterly incentive plan violated Section 8(a)(1) and
(3) of the Act. The General Counsel further alleges that, with
respect to the hourly maintenance workers, the Respondent
violated Section 8(a)(1) and (5) of the Act by making the
changes to compensation without giving the Union prior notice
or an opportunity to bargain.
Based on the record evidence, I find that when the Respon-
dent announced and implemented the decision to reverse the
second half of the wage reduction for hourly employees at the
Saint Peters facility, it was motivated by a desire to discourage
employees from voting for, or otherwise supporting, the Union.
I infer this for some of the same reasons discussed above re-
garding the June 1 wage restoration. The Respondent was
aware that the wage reductions were a central issue in the orga-
nizing campaign. Moreover, employees had expressed their
discontent with the Respondent’s previously announced plan to
make lump sum payments in the fourth quarter of 2002 instead
of restoring the base pay rate of those employees. At the time
the benefit was announced, the scheduled election for hourly
production employees had been blocked, but the organizing
campaign had not been abandoned and the possibility of an
election in the future remained very real. See Wis-Pak Foods,
Inc., 319 NLRB 933, 939 (1995) (finding a violation where
employer conferred benefits when an election was not presently
scheduled, but the possibility of an election was very real),
enfd. 125 F.3d 518 (7th Cir. 1997). The restoration of base pay
was contrary not only to the Respondent’s December 2001
statements that the reductions for hourly employees were per-
manent, but also to its May 10, 2002, statement that any further
pay restoration in 2002 would likely take the form of lump sum
payments. The Respondent’s decision to restore base pay to
hourly employees as of September 1 was even inconsistent with
the decision by the compensation committee of the Respon-
dent’s board, which passed a resolution on July 25, 2002, to
restore base pay rates for salaried employees, but not for hourly
employees in the United States. (R. Exh. 9; Tr. 462–463.)
The Respondent’s contention that improvements in its per-
formance explain the September base pay restoration is uncon-
vincing for many of the same reasons that it was unconvincing
as in regards to the June 1 pay restoration. Moreover, the ex-
planation is further undercut by the Respondent’s statements on
August 19 that it was restoring the base wages of hourly em-
ployees in order to “eliminate [a] significant source of distrac-
tion” and “heal wounds between hourly and salaried employ-
ees” even though the company had not met its productivity
targets.
I conclude that the evidence shows the Respondent’s August
19, 2002, announcement regarding wage restoration for hourly
employees at the Saint Peters facility was made during the
pendency of an organizing campaign for the purpose of induc-
ing employees not to vote for, or otherwise support, the Union,
and violated Section 8(a)(1) of the Act. I also conclude that the
grant of that wage restoration on September 1, 2002, had the
purpose of inducing employees not to vote for, or otherwise
support, the Union and violated Section 8(a)(1) and (3) of the
Act.
The Respondent fares better with respect to the General
Counsel’s allegations about the announcement and implementa-
tion of the quarterly incentive pay plan. Unlike the restoration
of base pay, the Respondent’s grant of an incentive pay plan
was not substantially inconsistent with the Respondent’s prior
statements about what it intended to do. To the contrary, since
before the union campaign the Respondent had been expressing
its intention to implement such initiatives. At the time it an-
nounced the base pay reductions in December 2001, the Re-
spondent also informed employees that it wished to move to a
performance based wage structure and was considering a plan
to provide incentive pay to hourly employees. At the meeting
with employees on May 10, the Respondent announced the
possibility that in the fourth quarter of 2002 it would make
lump sum payments under some type of “variable pay ap-
proach,” based on performance. At its July 25 meeting, the
compensation committee of the Respondent’s board of directors
resolved to extend incentive pay programs to hourly employees
at the Saint Peters and Southwest facilities, as well as to all
salaried employees in the United States. Thus the record give
every indication that the announcement and implementation of
incentive pay for hourly employees at the Saint Peters facility
was part of a plan by the Respondent, which predated the union
campaign, and which involved many employees who were not
the subject of an organizing effort. Moreover, the record does
not show that a lack of incentive pay initiatives for hourly em-
ployees was an issue the Respondent believed was driving the
organizing campaign. It does not appear that the Respondent
had reason to believe that the adoption of such a program
would discourage employees from voting for, or otherwise
supporting, the Union.
I conclude that the record does not give rise to an inference
that the Respondent’s August 19, 2002, announcement regard-
ing the incentive pay program had an antiunion purpose or
would tend to interfere with the free exercise of employee
rights under the Act. Similarly, I conclude that the record does
MEMC ELECTRONIC MATERIALS, INC. 1191
not show that the Respondent’s implementation of that program
on October 1, 2002, had an antiunion purpose. The General
Counsel’s allegations that the Respondent’s announcement and
implementation of the incentive pay program violated Section
8(a)(1) and Section 8(a)(1) and (3) should be dismissed.
The General Counsel also alleges that the Respondent vio-
lated Section 8(a)(1) and (5) by failing to give the Union notice
or an opportunity to bargain before reversing the second half of
the wage reduction for hourly maintenance workers at the Saint
Peters facility on September 1, 2002, and implementing the
quarterly incentive pay plan for those employees on October 1,
2002. In Mike O’Connor Chevrolet, the Board stated:

The Board has long held that, absent compelling economic
considerations for doing so, an employer acts at its peril in
making changes in terms and conditions of employment dur-
ing the period that objections to an election are pending and
the final determination has not yet been made. And where the
final determination on the objections results in the certifica-
tion of a representative, the Board has held the employer to
have violated Section 8(a)(5) and (1) for having made such
unilateral changes.

209 NLRB 701, 703 (1974) (fns. omitted), enf. denied on other
grounds, 512 F.2d 684 (8th Cir.1975). In this case, the Re-
spondent does not dispute that it implemented the September
and October changes in hourly maintenance employees’ pay
and wages after the representation election on June 5 and 6, and
before the Board certified the Union as collective-bargaining
representative on October 24. The Act expressly provides that
“rates of pay” and “wages” are mandatory subjects of bargain-
ing.
The Respondent argues that it had no choice but to apply the
worldwide changes in compensation to the group of hourly
maintenance employees at the Saint Peters facility because
withholding those benefits from that group would have been a
violation of Section 8(a)(3). The Respondent relies on Noah’s
Bay Area Bagels, LLC, 331 NLRB 188 (2000), a case in which
the Board found that an employer had violated Section 8(a)(3)
by withholding generally applicable changes in benefits from a
group of employees for whom a representation petition had been
filed, but an election not yet held. As discussed above, during
the preelection period an employer’s “legal duty in deciding
whether to grant benefits . . . is to decide the question precisely
as it would if the union were not on the scene.” United Airlines
Services Corp., 290 NLRB 954 (1988). In the instant case,
however, the Respondent made the unilateral changes during the
period after the election. The Respondent has not cited any au-
thority for the proposition that the standard discussed in Noah’s
Bagels, is applicable when a unilateral change is made during
the period after the representation election on the basis of which
the Union is certified as the collective-bargaining representative
of employees. Pursuant to Board precedent, see Mike O’Connor
Chevrolet, supra, a new duty, not present during the preelection
period, attaches postelection that imposes liability on employers
who make unilateral changes. The Respondent does not cite any
authority for the proposition that evidence showing an employer
would have made certain changes in the absence of a union
gives that employer the right to make those changes unilaterally
during the period between an election and certification, any
more than it would give the same employer such a right subse-
quent to certification. Moreover, even assuming that the
preelection standards at work in Noah’s Bagels do apply to
changes made during the postelection/precertification period at
issue here, the Respondent still would not inhabit the corner into
which it pretends to be painted. This is true because the Board
has recognized an exception allowing an employer to withhold
wage increases during the preelection period as long as the em-
ployer has a haphazard pattern of wage increases and truthfully
tells employees that the increase has merely been postponed or
deferred to avoid the appearance that the company had inter-
fered with the election. Pennsylvania Gas & Water Co., 314
NLRB 791, 792–793 (1994), enfd. 61 F.3d 895 (3d Cir. 1995),
mem.; Village Thrift Store, 272 NLRB 572, 573 (1983). Finally,
and perhaps most importantly, contrary to an underlying suppo-
sition of the Respondent’s argument, the record shows that the
Respondent would not have granted the wage restoration to
hourly employees in September 2002 if the union was not “on
the scene.” Rather as found above, the Respondent’s decision to
grant the wage restoration was itself unlawfully motivated by
antiunion animus. For these reasons, I reject the Respondent’s
argument that it was compelled by Section 8(a)(3) to apply the
September and October changes in compensation to hourly em-
ployees at the Saint Peters facility.
The Respondent also contends that it did not violate the Act
because the wage restoration and incentive pay plan for hourly
employees that it implemented in September and October were
an “established term or condition of employment” prior to the
election of June 5 and 6. It is true that on May 10, prior to the
representation election, the Respondent announced the possibil-
ity that it would make certain changes regarding compensation
in the fourth quarter of 2002. The Respondent did not, however,
state that a decision to make those changes had been reached or
that changes would automatically occur if specified economic
targets, or other triggers, were met. The Respondent did not
even state the specifics of the changes that were being contem-
plated. To the extent that the Respondent indicated what those
changes would be, it talked about some sort of lump-sum pay-
ments, not about the change in base pay rates that was imple-
mented in September. Indeed, it was not until July 25—6 weeks
after the election—that the Respondent’s compensation commit-
tee approved changes in compensation for the fourth quarter.
Even then, the changes endorsed by the compensation commit-
tee were not the changes that the Respondent actually imple-
mented in September and October, and did not include a restora-
tion of base pay rates for hourly maintenance employees at the
Saint Peters facility. The Board has held that a newly imple-
mented benefit is not an “established term or condition of em-
ployment,” regarding which bargaining is not required, unless
there is reasonable certainty as to the timing and criteria of the
new benefit. See, e.g., Mid-Continent Concrete, 336 NLRB
258, 268 (2001), enfd. 308 F.3d 859 (8th Cir. 2002); Maple
Grove Health Care Center, 330 NLRB 775, 780 (2000);
Eugene Iovine, Inc., 328 NLRB 294 (1999), enfd. mem. 242
F.3d 366 (2d Cir. 2001); Dynatron/Bondo Corp., 323 NLRB
1263, 1265 (1997), enfd. in relevant part 176 F.3d 1310 (11th
Cir. 1999). There was no such certainty with respect to the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1192
terms, timing, and criteria of the changes at issue here until well
after the representation election. Under these circumstances, the
Respondent’s contention that the wage changes made in Sep-
tember and October were already an existing term of employ-
ment as of the time of the representation election on June 5 and
6, is frivolous. Indeed, from all appearances the specific
changes were not decided on until some time after the July 25
executive committee meeting, and were not announced to hourly
employees until August 19.
I conclude, that the Respondent violated Section 8(a)(1) and
(5) of the Act by, on September 1, 2002, changing the base pay
rate of hourly maintenance employees at the Saint Peters facil-
ity without affording the Union an opportunity to bargain. I
further conclude that the Respondent violated Section 8(a)(1)
and (5) of the Act by, on October 1, 2002, implementing a
quarterly incentive pay plan for those employees without af-
fording the Union an opportunity to bargain.
C. Gareeb’s May 2002 Meetings With Employees
The General Counsel alleges that Gareeb, during his late
May meetings with hourly maintenance workers, violated Sec-
tion 8(a)(1) of the Act by: soliciting employees grievances and
promising to remedy many of those grievances if employees
refrained from union organizational activity; and implying to
employees that selection of the Union would result in loss of
benefits. The record here showed that days before hourly main-
tenance workers at the Saint Peters facility were scheduled to
vote in a representation election, Gareeb singled them out for a
series of meetings. At those meetings Gareeb: asked each em-
ployee to state his or her most important complaint about the
company; stated that he could address some of the problems,
but needed time; claimed that it would be easier for him to
address employees’ concerns if the employees did not involve a
third party; asked employees to give him a chance prior to vot-
ing a union in the shop; stated that third parties always in-
creased mistrust and lack of communication and understanding,
and that he did not like third parties; stated that people who get
lawyers and have third parties involved usually lose; and asked
employees to give him a chance prior to voting a union into the
shop.
An employer violates Section 8(a)(1) when it solicits, and
promises to remedy, employee grievances as part of an effort to
discourage union activity. Hospital Shared Services, 330
NLRB 317 (1999); Reliance Electric Co., 191 NLRB 44, 46
(1971), enfd. 457 F.2d 503 (6th Cir. 1972). The promise to
remedy grievances need not be explicit to constitute a violation.
“There is a compelling inference that [the employer] is implic-
itly promising to correct those inequities he discovers as a re-
sult of his inquiries and likewise urging on his employees that
the combined program of inquiry and correction will make
union representation unnecessary.” Embassy Suites Resort, 309
NLRB 1313, 1316 (1992), enf. denied on other grounds 32 F.3d
588 (D.C. Cir. 1994); see also Kmart Corp., 316 NLRB 1175,
1177 (1995). A violation is established even if the employer
does not actually promise to remedy the problems, but rather
only to “consider and try to correct the sources of employee
dissatisfaction.” Bakersfield Memorial Hospital, 315 NLRB
596, 600 (1994); see also Majestic Star Casino, 335 NLRB
407, 408 (2001).
I conclude that during the May meetings, Gareeb unlawfully
solicited, and promised to remedy, employee grievances in
order to try to convince employees that union representation
was unnecessary. As noted above, Gareeb singled out for the
meetings in May that group of about 115 employees among its
workforce of over 4000, who were about to vote in a union
election. During the meetings he made a show of taking notes
when the employees made their complaints, thus suggesting
that he would try to take some action regarding the complaints.
See Hanson Aggregates Central, Inc., 337 NLRB 870, 880–881
(2002). This activity by a CEO was not consistent with the
Respondent’s existing practices. To the contrary, the record
indicates that no CEO of the Respondent had ever before held
meetings with groups of hourly employees. Indeed, Gareeb
conceded that as of the time of trial the only hourly employees
he himself had met with in this manner, were the maintenance
and production employees at the Saint Peters facility who were
the subject of an organizational campaign. The record gives rise
to a compelling inference that the Respondent was promising to
correct, or at least “consider and try to correct,” the inequities
he discovered as a result of his inquiry. At any rate, here it is
not necessary to rely entirely on the compelling inference.
Gareeb told employees he could address some of the com-
plaints if only they would give him the time to do so. In this
context, “address” the complaints can most reasonably be inter-
preted as a promise to remedy, or try to remedy, those com-
plaints. Moreover, he made the connection between his prom-
ise and employees’ withholding support from the Union clear
for any who might have missed it, stating that it would be easier
for him to address the sources of the employees’ discontent if
they did not bring in a “third party.”
I conclude that Gareeb, during his May 2002 meetings with
hourly maintenance employees, solicited and promised to rem-
edy employee grievances for the purpose of discouraging union
support in violation of Section 8(a)(1).
The record also supports the allegation that during the May
meetings Gareeb violated Section 8(a)(1) by implying to em-
ployees that selection of the Union would result in loss of bene-
fits. During the meetings Gareeb referred to unions as “third
parties,” and said that “people who get lawyers and have third
parties involved usually lose.” He told employees it would be
easier for him to address their concerns if they did not bring in
a third party. Gareeb also told employees that during his di-
vorce he had offered his wife a fair settlement, but that she then
involved a lawyer in the negotiations and, as a result, received a
settlement that was less advantageous to her. Pursuant to the
Supreme Court’s decision NLRB v. Gissel Packing Co., the
analytical question posed here is whether Gareeb’s statements
constituted an unlawful threat of retaliation in response to pro-
tected activity, or a lawful, fact-based prediction of economic
consequences beyond the employer’s control. 395 U.S. 575,
617–619 (1969). In order to fall into the latter category the
employer’s predictions as to the negative effects of unioniza-
tion must be supported by objective fact. Id. I conclude that
Gareeb’s statements were threats, not fact-based predictions of
economic consequences beyond his control. Indeed, the only
MEMC ELECTRONIC MATERIALS, INC. 1193
“fact” he offered to support his statement that employees who
involve unions “usually lose,” was his assertion that his wife
received a lesser divorce settlement after involving a third party
in the negotiations. Even if one accepts Gareeb’s uncorrobo-
rated claim that this happened, and even if one believes that it
can meaningfully be analogized to the labor setting, it would
not be evidence of a “third party” causing “consequences be-
yond [Gareeb’s] control,” since it was within Gareeb’s power
to insist that his lawyer continue to offer the larger settlement
that he had contemplated prior to the lawyer’s involvement in
the negotiations. I conclude that reasonable employees would
understand Gareeb as essentially stating that while he was dis-
posed to be generous towards employees, he would withdraw
that generosity if employees chose to allow a collective-
bargaining representative to interfere in matters at the facility.
This is particularly true given the economic dependency of
employees on their employer and the tendency for the former to
“pick up intended implications” from the latter “that might be
more readily dismissed by a more disinterested ear.” Gissel
Packing Co., 395 U.S. at 617.
I conclude that Gareeb violated Section 8(a)(1) during his
May 2002 meetings with hourly maintenance employees by
impliedly threatening that selection of the Union would result
in employees’ loss of benefits.
D. Overtime Policy
The General Counsel alleges that the Respondent unlawfully
solicited and impliedly promised to remedy employees’ griev-
ances when it distributed a survey regarding the company’s
overtime policies to employees. An employer has been held to
violate Section 8(a)(1) by conducting a survey of its employees’
views regarding their conditions of employment when the em-
ployer had not previously, or at least not recently, conducted
such a survey, and the survey took place shortly before a union
election. See, e.g., Orbit Lightspeed Courier Systems, Inc., 323
NLRB 380, 393 (1997); Weather Shield of Connecticut, 300
NLRB 93, 94, 104 (1990). In July 2002, shortly before the date
of a scheduled union election for hourly production employees,
the Respondent distributed a survey asking those employees for
their views on overtime policy. The Respondent indicated to
employees that the survey would be used to formulate a new
overtime policy. The record shows, however, that even before
the union campaign the Respondent had a practice of using sur-
veys to obtain employees’ views on issues regarding scheduling
and overtime. The Respondent had used surveys in this fashion
once in 2001 and several times during the 1990s. The General
Counsel did not show that the procedures the Respondent used
for the 2002 overtime survey were any different than those used
for surveys in the past. Moreover, in May and June of 2002,
employees of the Respondent had approached the Respondent
on at least three occasions to request changes in the way over-
time was being assigned. The record indicates that the employ-
ees made these complaints spontaneously, without being solic-
ited by the Respondent. Although the timing of the survey is
cause for some suspicion, the evidence suggests that this timing
was probably dictated by a resurgence in the Respondent’s busi-
ness, which had made unusually large amounts of overtime a
necessity and thus intensified problems in the operation of the
existing overtime policy. The General Counsel cites no author-
ity showing that, when an election is pending, it becomes unlaw-
ful for an employer to continue its prior practice of distributing
surveys to employees about possible changes in schedule or
overtime policy. The facts present here do not give rise to an
inference that the employer was motivated by a desire to dis-
courage union activity or support when it distributed the over-
time survey.
For these reasons, I conclude that the allegation that the Re-
spondent’s actions with respect to the overtime survey violated
Section 8(a)(1) should be dismissed.
The General Counsel also alleges that the Respondent dis-
criminated in violation of Section 8(a)(1) and (3) when in,
March 2003,28 it implemented a new overtime policy for hourly
production employees in order to discourage union activity. As
discussed above, in March 2003 the company responded to
employees’ spontaneous expressions of discontent regarding
inconsistencies in overtime policy by implementing a new fa-
cilitywide overtime policy for production employees that re-
duced supervisor discretion. The same Exchange Parts stan-
dards that were discussed above in reference to the allegation
regarding wage restoration apply to the allegation that this
action violated Section 8(a)(1) and (3). As discussed above, the
Respondent’s “legal duty” in such circumstances is “to decide
the question precisely as it would if the union were not on the
scene.” United Airlines Services, Corp., 290 NLRB 954
(1988).
I conclude that the evidence is insufficient to raise an infer-
ence that the Respondent implemented the new overtime policy
as part of an effort to discourage union support. As discussed
above, the Respondent’s survey of employee attitudes regard-
ing overtime policy was consistent with the Respondent’s past
practices. The change in policy was appropriate to address the
stated purpose of bringing greater consistency to decisions
about the assignment of overtime. The timing of the Respon-
dent’s initiative to change the overtime policy is adequately
explained by the large increase in the amount of overtime being
assigned and employees’ spontaneous complaints regarding
current overtime practices. The record does not show that,
prior to the union campaign, the Respondent made any state-
ments inconsistent with its decision to implement the new over-
time policy in March 2003. Although the evidence did show
both that the Respondent was aware that overtime policy was
an issue in the union organizing campaign, and that the Re-
spondent bore animus towards the union effort, the evidence
adduced is insufficient to show that implementation of the pol-
icy was driven by the Respondent’s desire to defeat the Union.
Rather, the factors discussed above, and the record as a whole,
lead me to conclude that the decision to implement the new
policy more likely was driven by the Respondent’s recognition
that the old system for distributing overtime assignments was
not functioning acceptably given current conditions.

28 The Complaint alleges that the overtime policy was implemented
on about January 22, 2003. In its brief the General Counsel alleges that
the policy was, in fact, implemented in March 2003. The record indi-
cates that the policy was implemented in March, not January.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1194
For these reasons, I conclude that the allegation that the Re-
spondent violated Section 8(a)(1) and (3) when it implemented
a new overtime policy in March 2003 should be dismissed.
E. Meetings Conducted by Coleman and Beckerman
The complaint alleges that, at a meeting on about July 23,
supervisors Coleman and Beckerman “impliedly threatened
employees with plant closure if employees selected the Union
as their collective-bargaining representative.” It is a violation
of Section 8(a)(1) for an employer to threaten that it will choose
to close the facility where employees work if they select a un-
ion as their collective-bargaining representative. Interstate
Truck Parts, 312 NLRB 661 (1993), enfd. 52 F.3d mem. 316
(3d Cir. 1995); Almet, Inc., 305 NLRB 626 (1991), enfd. 987
F.2d 445 (7th Cir. 1993). The test for purposes of Section
8(a)(1) is not whether the speaker intended the remark as a
threat but “‘whether a remark can reasonably be interpreted by
an employee as a threat.’” Concepts & Designs, Inc., 318
NLRB 948, 954 (1995) (quoting Smithers Tire, 308 NLRB 72
(1992), enfd. 101 F.3d 1243 (8th Cir. 1996)).
I conclude that the statements made by Coleman and Beck-
erman at the July 23 meeting cannot reasonably be interpreted as
threats that the Respondent would close the facility if the pro-
duction employees selected the Union. To put matters in con-
text, I note that the subject of the meeting was not the Union or
union activity, but rather new production benchmarks that had
just been announced by the company. Jansky informed man-
agement and supervisory personnel of the benchmarks earlier
that day and supervisors Coleman and Beckerman were com-
municating to hourly employees what they had learned from
Jansky. The record indicates that the production and shipping
benchmarks were introduced as the result of the Respondent’s
very real concern over its inability to deliver product to custom-
ers in a timely manner. In her remarks at the meeting in ques-
tion, Coleman stated in response to question that employees
would “be without jobs” if the benchmarks were not met, but
she made absolutely no mention of the Union or any protected
activity. I conclude that an employee would not reasonably
interpret Coleman’s statement that employees would lose their
jobs if the benchmarks were not met as a threat that the plant
would close if employees chose the Union as their bargaining
representative. Coleman’s statement has nothing to do with the
threat the General Counsel alleges that she made.
During his presentation, Beckerman stated his concern that
he would not be able to retire from the Respondent and also
urged employees not to let the union issues distract them from
focusing on their jobs. The General Counsel’s allegation that
this constituted a threat that the plant would close if employees
selected the Union is unsupportable. First, Beckerman did not
state that the plant would close. At best he expressed concern
that his own position was in jeopardy. I conclude that reason-
able attendees would have interpreted Beckerman’s statement
as an expression of concern about his own prospects, not as a
threat of plant closure—especially given that Coleman had just
told the employees about the departures of three other company
officials. Furthermore, the evidence does not show that Beck-
erman mentioned employees’ selection of the Union as collec-
tive-bargaining representative. It certainly does not show that
he stated, or even implied, that selection of the Union would
bring about the loss of anyone’s job. It is true that Beckerman
made statements to the effect that employees should not permit
union activity to distract them from their jobs and, presumably,
from meeting the new production goals. Even if the Complaint
fairly could be read to encompass an allegation that Beckerman
warned employees not to allow union activities to distract them
from their assigned tasks (and I doubt that the Complaint can be
so read), the General Counsel has not cited any authority that
such a warning is unlawful.
It appears to me that the General Counsel may be hoping to
make out this allegation by cobbling together glosses on se-
lected portions of Coleman’s statement with glosses on selected
portions of Beckerman’s statement. It is proper, I believe, to
consider the import of the remarks made by Coleman and
Beckerman in the context of the entire meeting. However, I
conclude consideration of that context supports the view that
what Coleman and Beckerman communicated, and would be
understood by reasonable employees as communicating, was
that there would be dire consequences if the Respondent did not
find a way to meet the new production and shipping bench-
marks, not that any consequences, dire or otherwise, would
flow from selection of the Union as collective-bargaining rep-
resentative.
For the reasons stated above, I conclude that the allegation
that the statements by Coleman and Beckerman at the July 23,
2002 meeting violated the Act should be dismissed.
F. No-Distribution Rule
The General Counsel alleges that since January 26, 2002, the
Respondent has violated Section 8(a)(1) of the Act by maintain-
ing an employee handbook that contains a rule prohibiting em-
ployees from distributing literature “at any time for any pur-
pose.”29 “A no-distribution rule which is not restricted to work-
ing time and to work areas is overly broad and presumptively
unlawful.” Teletech Holdings, Inc., 333 NLRB 402, 403
(2001). The governing principle is that a rule is presumptively
invalid if it prohibits distribution on the employees’ own time.
See Our Way, Inc., 268 NLRB 394 (1983). Under this stan-
dard, the Respondent’s no-distribution rule is presumptively
unlawful. The Respondent’s no-distribution rule is not re-
stricted to working time or work areas, but rather clearly ap-
plies to “any time” and is unrestricted as to place. This conclu-
sion is unaffected by the Respondent’s protestations that the
rule has not been enforced and that the handbook has not been
distributed to employees since 1999. As the Board has stated,
“[t]he mere existence of an overly broad rule of this kind tends
to restrain and interfere with employees’ rights under the Act,
even if the rule is not enforced.” Id. (emphasis added); see also

29 The Complaint allegation quotes the entire handbook provision,
which states: “Employees are not permitted to solicit other employees
during working time or to distribute literature at any time for any pur-
pose.” In its brief, the General Counsel limits its argument to the por-
tion of this provision involving distribution of literature, and makes no
argument that the prohibition on solicitation during working time is
unlawful. Therefore, I will not consider whether the prohibition on
solicitation is also unlawful.
MEMC ELECTRONIC MATERIALS, INC. 1195
Alaska Pulp Corp., 300 NLRB 232, 234 (1990), enfd. 944 F.2d
909 (9th Cir. 1991).
Although the Respondent’s policy is presumptively unlaw-
ful, the Respondent would be able to avoid a finding of viola-
tion if it could demonstrate that it conveyed to employees a
clear intent to permit distribution of literature in nonworking
areas during nonworking time. Teletech Holdings, 333 NLRB
at 403. “A clarification of an ambiguous rule or a narrowed
interpretation of an overly broad rule must be communicated
effectively to the employer’s workers to eliminate the impact of
a facially invalid rule.” Id. “Any remaining ambiguities con-
cerning the rule will be resolved against the employer, the
promulgator of the rule.” Id. The Respondent has not shown
that the Respondent ever told employees to whom it had issued
the handbook that the handbook was no longer in effect. In-
deed, the Respondent failed to show that it had ever taken any
action to disavow, rescind, clarify, or narrow, the overly broad
no-distribution rule that appears in its employee handbook.
Moreover, to extent that there is any ambiguity about whether
the unlawful rule remained in effect, that ambiguity is to be
resolved against the Respondent. For these reasons, I conclude
that the Respondent has failed to rebut the presumption that it
violated the Act.
I conclude that, since January 26, 2002,30 the Respondent has
violated Section 8(a)(1) by maintaining an overly broad no-
distribution policy.
G. Prohibitions Regarding Breaktime and Personal Projects
The General Counsel alleges that on July 23, 2002, the Re-
spondent violated Section 8(a)(1) and (5) of the Act by unilater-
ally changing the areas where hourly maintenance employees
were permitted to take their breaks, and by discontinuing its
practice of allowing those employees to bring personal projects
into the plant. As discussed above, absent compelling economic
considerations, when an employer makes unilateral changes in
terms and conditions of employment during the period that ob-
jections to an election are pending, such unilateral changes vio-
late Section 8(a)(1) and (5) of the Act if the final determination
on the objections results in the certification of a representative.
Mike O’Connor Chevrolet, 209 NRLB 701, 703 (1974).
The record shows that prior to July 23, 2002, the Respon-
dent’s hourly maintenance workers were permitted to take
breaks anywhere other than a production area and to bring per-
sonal projects to the facility and work on those projects during
their own time. However, on July 23, Mueller began informing
hourly maintenance employees that they could now take their
breaks only in the breakrooms, and could no longer bring per-
sonal projects to the plant. The Respondent acknowledges that
it made these changes. (R. Br. at 103.) The record is clear that
these changes were made without giving the Union notice or an
opportunity to bargain, and at a time subsequent to the election
that resulted in the Union’s certification as the bargaining rep-
resentative of maintenance employees.

30 The no-distribution rule has been maintained since well before
January 26, 2002. That date is dictated by the 6-month charge filing
period under Sec. 10(b). The original charge challenging the no-
distribution policy (Case 14–CA–27036) was filed on July 26, 2002.
Changes in the location where employees are permitted to
take their breaks, and in the practice of permitting employees to
bring personal projects to work have both been held to be man-
datory subjects of bargaining. Doefer Engineering, 315 NLRB
1137, 1141 (1994), order set aside on other grounds 79 F.3d
101 (8th Cir. 1996) (personal projects); Circuit-Wise, Inc., 308
NLRB 1091, 1106 (1992), enfd. 992 F.2d 319 (2d Cir. 1993)
(Table) (location of breaks). The Respondent argues that the
subjects of the changes at-issue here were not substantial
enough to require bargaining, but it does not mention, much
less distinguish, the contrary, on-point, Board precedent.
Therefore, I reject the Respondent’s argument that the changes
here did not involve mandatory subjects of bargaining.31
The Respondent also argues that the changes, and the new
production benchmarks that prompted them, were not moti-
vated by any antiunion sentiment, but rather by “fundamental
business facts,” (R. Br. at 107), and were “ordinary and neces-
sary adjustments in running a business,” Id. at 108 (quoting
Waste Stream Management, Inc., 315 NLRB 1088, 1090
(1994)). The record supports the view that when Mueller made
the unilateral changes he was motivated by a desire to meet the
new production benchmarks announced by Jansky. Mueller’s
motivation is not dispositive however. Board precedent is clear
that unilateral changes in mandatory subjects of bargaining
violate Section 8(a)(1) and (5) whether or not they are unlaw-
fully motivated. Mike O’Connor Chevrolet, 209 NLRB at 704.
The Respondent would escape liability for the unilateral
changes at-issue if it showed “compelling economic considera-
tions” sufficient to justify an exception to its bargaining obliga-
tion. The Respondent does not appear to argue that this eco-
nomic exception applies, but if that is the Respondent’s posi-
tion, I reject it. I note first that there is a heavy burden on any
party claiming the benefit of this exception. Under Board
precedent, the phrase “compelling economic considerations”
refers only to “extraordinary, unforeseen events having a major
economic effect that requires . . . immediate action.” Maple
Grove Health Care Center, 330 NLRB 775, 779 (2000). The
Respondent has not cleared this high hurdle. The Respondent
argues that the unilateral changes were justified so that produc-
tion department supervisors would not be left with the “percep-
tion” that maintenance department employees were avoiding
work. The Respondent has not shown that the opinions held of
maintenance employees by supervisors from other departments
were extraordinary or unforeseen or that those perceptions were

31 The Respondent also argues that the changes were not substantial
because they were temporary, having been adhered to only for a period
of about 4 weeks. However, the Respondent cites no precedent for the
proposition that a unilateral change in terms and conditions of employ-
ment is lawful if the Respondent reverts to the previous rule after such
a period of time. Moreover, in this case, Mueller testified that the
Respondent had never announced that the unilateral changes were
being revoked (Tr. 655), and also stated that the unilaterally imposed
rules were still being followed to a degree in some of the Respondent’s
approximately eight or nine maintenance shops (Tr. 654). At any rate,
4 weeks is not an inconsequential effective period for a unilateral
change. See, Dixie Ohio Express Co., 167 NLRB 573, 575 (1967), enf.
denied 409 F.2d 10 (6th Cir. 1969) (unilateral changes a violation even
though less than 3 weeks later the employer satisfied its duty to bar-
gaining obligation with respect to changes).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1196
a compelling economic consideration requiring immediate ac-
tion. Indeed, the Respondent has not shown that such percep-
tions were having any meaningful impact at all on a compelling
economic consideration. The Respondent also argues that the
unilateral changes were necessary because the maintenance
department was operating with fewer supervisors/coaches, and
as a result it was difficult for supervisory personnel to deter-
mine if maintenance employees in the shops were on break
unless they confined their breaks to the breakroom. (R. Br. at
107–108.) However, Mueller, who came up with the unilateral
changes, testified that the deficit in supervisory personnel was
not even something he considered at the time. (Tr. 653.) Thus
this factor appears to be merely a post facto rationalization for a
decision that was not really compelled by a supervisor shortage.
Moreover, even were I to conclude that there were compel-
ling economic considerations present at the time of the changes,
the record would still fail to trigger the economic exigencies
exception because the Respondent failed to show that those
economic considerations compelled these changes. As ob-
served by the Respondent, at the same time that Mueller made
the changes at-issue here, he also announced a variety of other
changes aimed at meeting the new production benchmarks. (R.
Br. 105–106.) Since the Respondent has not shown that these
other steps32 were inadequate to satisfy the Respondent’s inter-
est in meeting the new production benchmarks, it is doubtful
that the Respondent can show that it was compelled by those
benchmarks to bypass bargaining and make unilateral changes
in the mandatory bargaining subjects at issue here. At any rate,
if the unilateral changes were compelled by economic consid-
erations so unforeseen and exigent as to warrant granting the
Respondent an exception to the obligation to bargain, one
would expect the Respondent to have enforced those changes
rather strictly. According to Mueller, however, most mainte-
nance employees adhered to the unilateral changes only for a
period of about 4 weeks. While the unilaterally imposed rules
were being breached, the Respondent’s on-time shipping per-
formance improved.
For the reasons discussed above, I conclude that the Respon-
dent violated Section 8(a)(1) and (5) of the Act on July 23,
2002, by unilaterally changing the areas where hourly mainte-
nance employees were permitted to take their breaks, and by
discontinuing its practice of allowing those employees to bring
personal projects into the Saint Peters plant and work on them
during their own time.
H. Discharge of Avis High
The General Counsel alleges that the Respondent discrimi-
nated in violation of Section 8(a)(1) and (3) when it discharged
Avis High on October 17, 2002. In Wright Line, 251 NLRB
1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied, 455 U.S. 989 (1982), approved in NLRB v. Transporta-

32 Among the other changes were: increased use of temporary as-
signments; employees moved between areas more frequently; internet
access eliminated from maintenance shops; maintenance personnel
expected to attend production meetings; during shifts when no mainte-
nance supervisors were present, production supervisors would help
maintenance employees set priorities; and, training increased in areas
prone to bottlenecks.
tion Corp., 462 U.S. 393 (1983), the Board set forth the stan-
dards for determining whether an employer has discriminated
against an employee on the basis of union or protected activity.
Under the Wright Line standards, the General Counsel bears the
initial burden of showing that the Respondent’s actions were
motivated, at least in part, by antiunion considerations. The
General Counsel may meet this burden by showing that: (1) the
employee engaged in union or other protected activity, (2) the
employer knew of such activities, and (3) the employer har-
bored animosity towards the Union or union activity. Senior
Citizens Coordinating Council, 330 NLRB 1100, 1105 (2000);
Regal Recycling, Inc., 329 NLRB 355, 356 (1999). If the Gen-
eral Counsel establishes discriminatory motive, the burden
shifts to the employer to demonstrate that it would have taken
the same action absent the protected conduct. Senior Citizens,
330 NLRB at 1105.
Under the standards stated above, I conclude that the General
Counsel has met its initial burden. The evidence in this case
shows that High engaged in union activities and that the Re-
spondent was aware of High’s support for the Union. Ploeger
and Decker testified that they were aware that High wore a
prounion button to work, and High was identified as prounion
on a list that the Respondent maintained. As discussed above,
the Respondent has demonstrated antiunion animus and a will-
ingness to act unlawfully in its campaign to defeat the organiza-
tional effort.
Since the General Counsel has made the required initial
showing, the burden shifts to the Respondent under Wright Line,
supra, to show that it would have taken the same actions even in
the absence of High’s protected activities. I conclude that the
Respondent easily satisfies that burden here. I note first, that the
evidence connecting High’s discharge to the Respondent’s anti-
union animus, while adequate for purposes of meeting the Gen-
eral Counsel’s initial Wright Line burden, is very weak indeed.
High was just one of hundreds of employees at the Saint Peters
facility who displayed prounion messages. However, not one
other employee is alleged to have been disciplined in any way
for supporting the Union. High was not shown to be a leader of
the organizing drive, nor was she shown to be one of the 40
employees who engaged in active outreach for the Union by
distributing handbills. High was unexceptional in her support
for the Union, and the General Counsel provides no plausible
explanation why the Respondent would single her out for dis-
criminatory discipline on the basis of that support. Moreover,
High began displaying the prounion slogans in March. The evi-
dence does not show that High engaged in any new or different
prounion activities in the weeks leading up to her termination on
October 17. It is hard to understand why, if indeed the Respon-
dent wished to single out High for punishment because of her
union support, the Respondent would have waited until October
to do so. See Detroit Paneling Systems, Inc., 330 NLRB 1170
(2000) (timing is an important factor in assessing motivation in
cases alleging discriminatory discipline based on union or pro-
tected activity); Bethlehem Temple Learning Center, 330 NLRB
1177, 1178 (2000) (same); American Wire Products, 313 NLRB
989, 994 (1994) (same).
Moreover, I find that the record supports the Respondent’s
explanation for its decision to terminate High. McLaughlin,
MEMC ELECTRONIC MATERIALS, INC. 1197
who made the final decision to terminate High, testified that his
action was based on: the suspension that High had received for
vulgar statements to a coworker; High’s repeated instances of
poor performance; High’s history of belligerence towards super-
visors; and High’s lack of improvement. The record shows that
High repeatedly became belligerent with others in the workplace
for reasons that had nothing to do with union or protected activ-
ity. In one instance High, without appreciable provocation,
directed an unusually vulgar insult at a coworker. When asked
about the incident during a meeting with her supervisor (Reed)
and a human resources official, High refused to reveal what she
had said. In another instance, a different supervisor (Earle)
advised High that a high-ranking management official believed
he saw High sleeping on the job. The supervisor appeared to go
out of her way to communicate this information to High in a
gentle manner as possible—stating that she did not think High
actually slept on the job, and suggesting ways that High could
avoid the perception that she was sleeping. High reacted to this
“heads up” conversation by becoming angry and accusing the
supervisor of harassment. In yet another instance, a third super-
visor (Coleman) asked why High had failed to complete an im-
portant assignment and High, rather than express remorse or a
desire to improve, responded by accusing the supervisor of har-
assment. When the supervisor asked High what other work had
kept her from completing the special assignment, High declined
to answer and instead told the supervisor to go look it up for
herself on the computer.
The record shows that High’s propensity to launch inappro-
priate verbal attacks in the workplace was not the only problem
that Respondent was legitimately concerned about. On two oc-
casions over the 3-day period from October 8 to 10, High failed
to perform important assignments that were given to her. Worse
yet, the record leads me to infer that, at least in the second in-
stance, High intentionally shirked the assignment.33 In neither
instance did High even inform her supervisor that she would not
complete the work she had been assigned, thus creating a possi-
bility that urgent assignments would be overlooked or delayed.
As stated above, in another instance, a corporate vice president
observed High appearing to sleep while on duty.
I also note that in a hearing where High was attempting to
obtain unemployment compensation she alleged that the Re-
spondent terminated her in retaliation for her having filed a
workers’ compensation claim. Assuming that that such retalia-
tion caused the Respondent to terminate High, then the 8(a)(3)
claim regarding that termination in this case would fail because
an employee’s individual pursuit of a worker’s compensation
claim is not activity protected by Section 7. Zartic, Inc., 277
NLRB 1478 (1986), affd. 810 F.2d 1080 (11th Cir. 1987); Cen-
tral Georgia Electric Corp., 269 NLRB 635 (1984). At any
rate, the record before me provides no basis for concluding that
High’s allegation regarding her worker’s compensation claim is
true and not merely another expression of High’s desire to lay
the blame for her termination somewhere other than on her own
conduct.

33 With at least an hour remaining in her own shift, High left the as-
signment for the next shift with a “tie-in” note about what needed to be
done. Then High proceeded to take an extended break.
The record paints a picture of High as a disruptive, belliger-
ent, employee who had come to feel that she was free not to
perform an assignment that did not suit her and who acted as
though her supervisors had no right to question or counsel her
about performance deficiencies. Over the course of about 5
months, she ran afoul of not just one supervisor, but of Reed,
Earle, Coleman, and Decker, not to mention coworker De-
Grasso. I conclude that the Respondent would have terminated
High for the reasons testified to by McLaughlin regardless of
High’s union or protected activity.
The General Counsel contends that High’s vulgar statement
to a coworker could not legitimately have played a part in her
termination because vulgarity was common in the workplace.
High testified that other employees said “fuck” “damn” and
“shit” at work. She did not claim, however, that the employees
had directed these words at others in the workplace. Even as-
suming I credit High’s testimony that these words were com-
monly used in the Respondent’s workplace, the fact remains
that High did not merely use profanity. Rather she said the
following to a coworker: “You can go fuck someone, pull it out
and suck your own dick.” I conclude that the Respondent could
reasonably view this statement, hurled angrily at a coworker as
an insult, to be much more disturbing and disruptive than the
simple use of profanity.
The General Counsel also argues that the Respondent has of-
fered “shifting” explanations for the decision to terminate High,
and that this indicates the decision was unlawfully motivated. I
have considered the inconsistencies raised by the Respondent,
but conclude that the Respondent’s explanation for High’s ter-
mination has, in the main, been constant.
The General Counsel argues that I should not credit Decker’s
testimony that she made the October 8 assignment to High. For
reasons already discussed, I have credited Decker’s testimony
regarding this matter. Moreover, even had I concluded that
Decker was lying, the most plausible explanation for such a lie
would be that Decker was attempting to shift blame for her own
lapse. That, indeed, is the explanation suggested by the Gen-
eral Counsel for this portion of Decker’s testimony. (GC Br.
20.) The problem for the General Counsel is that assuming this
was the reason that Decker accused High of failing to perform
the October 8 assignment it would have nothing to do with
antiunion animus. Moreover, the record does not provide a
basis for concluding that antiunion animus was what inspired
any of the Respondent’s officials to believe Decker. See Han-
son Aggregates Central, Inc., 337 NLRB 870, 879 (2002) (no
violation of Section 8(a)(3) where discipline is based on em-
ployer’s decision to credit one employee’s allegation against
another, and the decision to believe the allegation was not dis-
criminatory).
According to the General Counsel, the legitimacy of the Re-
spondent’s explanation for terminating High is undermined by
the lesser discipline the Respondent imposed on three employ-
ees—Sandrowski, Burger,34 and Sommer—who the General

34 In its brief, the General Counsel refers to discipline imposed on
James Bailey. However, the record indicates that the discipline de-
scribed was actually imposed on Matthew Burger by James Bailey, a
supervisor. (GC Exh. 35; Tr. 382-83.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1198
Counsel contends engaged in more severe misconduct. It is true
that when employees who were not involved in protected activ-
ity are given lesser discipline for worse conduct it is an indicia
of improper motive. Aldworth Co., Inc., 338 NLRB No. 22, slip
op. at 86 (2002); Dai-Ichi Hotel Saipan Beach, 337 NLRB 469,
473 (2002). For a number of reasons, the comparator evidence
presented by the General Counsel does not rebut the nondis-
criminatory explanation offered by the Respondent.35 First, the
General Counsel did not show that Burger and Sommer were
not, like High, open supporters of the Union. Indeed, Sommer
was identified by the Respondent as a prounion employee. (GC
Exh. 22.) Even assuming that the Respondent disciplined High
more harshly than other employees who engaged in the same
type of protected activity that would not tend to show that anti-
union animus accounted for the difference in treatment; to the
contrary it would suggest that some factor other than antiunion
animus accounted for the harsher treatment High supposedly
received. Sandrowski’s discipline was issued over a year before
the start of the union campaign, and therefore, presumably,
Sandrowski had not had an opportunity to support, or oppose,
the Union at that time. The discipline decision involving
Sandrowski was made almost 21 months before the decision to
terminate High. Given the significant passage of time, I believe
that the evidence regarding Sandrowski’s discipline is of ex-
tremely limited probative value regarding the question of
whether High’s termination was the result of antiunion animus.
Second, High’s misconduct had a significant component that
was not shown to be present in the misconduct of any of the
alleged comparators. The record showed that High not only had
recurrent conduct and performance problems, but that she also
repeatedly reacted unhelpfully, and even hostilely, when super-
visors tried to question or counsel her about those problems.
None of the alleged comparators were shown to have reacted to
a supervisor’s questioning or counseling by verbally attacking
the supervisor or refusing to answer the supervisor’s questions.
See Avondale Industries, 329 NLRB 1064 (1999) (indicating
that an employer may meet its Wright Line burden by showing
that the disparity in discipline between alleged discriminatees
and the General Counsel’s comparators is attributable to factors
unrelated to union activity). Third, even if I believed that the
misconduct of the alleged comparators was meaningfully similar
to High’s, that evidence would be of little value under the cir-
cumstances present here because the supervisors and managers
who made the decision to terminate High had no involvement in
the discipline issued to the three alleged comparators. Coleman
and Wilp, who initiated the termination proceedings regarding
High, and McLaughlin, who gave final approval for the termina-
tion, did not recommend or approve the discipline issued to
Sandrowski, Burger or Sommer.36 Given the type of misconduct

35 Since the General Counsel has carried its initial burden using other
evidence, “the value of the disparate treatment evidence lies principally
in its tendency to rebut the employer’s own attempt to carry its now-
shifted burden under Wright Line of demonstrating that it would have
taken the same action against the [union] activist even absent his or her
union activities.” Avondale Industries, supra at 1066, quoting New
Otani Hotel & Garden, 325 NLRB 928 (1998).
36 In the normal course of events, Brock, who participated as a hu-
man resources representative in the decision to discharge High, would
at issue here, I would not expect that different supervisors would
necessarily react in precisely the same way. Based on any one
of these reasons, I would conclude that the comparator evidence
adduced by the General Counsel was of limited probative value.
Certainly when taken together, these reasons lead me to con-
clude that the evidence regarding discipline issued to other em-
ployees does not significantly undermine the record evidence
showing that High engaged in misconduct that justified the dis-
cipline she received and that the Respondent would have termi-
nated her for such misconduct even absent her protected activity.
The Respondent has met its burden under Wright Line.
For the reasons discussed above, the allegation that the Re-
spondent violated Section 8(a)(1) and (3) by terminating High
should be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(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. The Respondent interfered with employees’ exercise of
Section 7 rights in violation of Section 8(a)(1) of the Act by:
making an announcement on May 10, 2002, regarding wage
restoration while a representation petition was pending for the
purpose of inducing employees not to vote for, or otherwise
support, the Union; soliciting and promising to remedy em-
ployee grievances for the purpose of discouraging union sup-
port; impliedly threatening that selection of the Union would
result in employees losing benefits; making an announcement on
August 19, 2002, regarding wage restoration for the purpose of
inducing employees not to vote for, or otherwise support, the
Union; and maintaining an overly broad no-distribution policy.
4. The Respondent violated Section 8(a)(1) and (3) of the
Act by: on June 1, 2002, reversing half of the wage reduction
to hourly employees at its Saint Peters facility for the purpose
of inducing employees not to vote for, or otherwise support, the
Union; and, on September 1, 2002, reversing the other half of
the earlier wage reduction to hourly employees at the Saint
Peters facility for the purpose of inducing employees not to
vote for, or otherwise support, the Union.
5. The Respondent violated Section 8(a)(1) and (5) of the
Act when, without giving the Union an opportunity to bargain,
it: unilaterally changed the base pay rate of hourly mainte-
nance employees at the Saint Peters facility on September 1,
2002; implemented a new quarterly incentive pay plan for
hourly maintenance employees at the Saint Peters facility on
October 1, 2002; unilaterally changed the areas where hourly
maintenance employees at the Saint Peters facility were permit-
ted to take their breaks; and, unilaterally discontinued its prac-
tice of allowing hourly maintenance employees to work on

also have been consulted about the discipline received by Sandrowski,
Burger, and Sommer. However, the record reveals nothing regarding
the nature or extent of Brock’s involvement in the discipline decisions
regarding the three alleged comparators. It does not show that she had
significant input into those decisions, and certainly not that she had the
power to impose more severe discipline than the supervisors involved
were seeking.
MEMC ELECTRONIC MATERIALS, INC. 1199
personal projects at the Saint Peters facility during their non-
worktime.
6. The Respondent did not commit the other unfair labor
practices alleged in the complaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended37
ORDER
The Respondent, MEMC Electronic Materials, Inc., Saint
Peters, Missouri, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Making announcements regarding changes in compensa-
tion for hourly employees for the purpose of inducing employ-
ees not to vote for, or otherwise support, a union.
(b) Soliciting and promising to remedy employee grievances
for the purpose of discouraging support for a union.
(c) Threatening employees that selection of a union as col-
lective-bargaining representative will result in employees los-
ing benefits.
(d) Maintaining or enforcing any overly broad no-
distribution policy that is not restricted to working time and
work areas.
(e) Implementing any changes in compensation for the pur-
pose of inducing employees not to vote for, or otherwise sup-
port, a union.
(f) Implementing any unilateral changes to the base pay rate
of hourly maintenance employees at its Saint Peters facility
without providing the International Association of Machinists
and Aerospace Workers, AFL–CIO (the Union) with adequate
prior notice and an opportunity for bargaining.
(g) Implementing any new pay programs for hourly mainte-
nance employees at its Saint Peters facility without providing
the Union with adequate prior notice and an opportunity for
bargaining.
(h) Changing the areas where hourly maintenance employees
at the Saint Peters facility are permitted to take their breaks
without providing the Union with adequate notice and an op-
portunity for bargaining.
(i) Changing the practice of allowing hourly maintenance
employees to work on personal projects at the Saint Peters fa-
cility during their nonwork time, without providing the Union
with adequate notice and an opportunity for bargaining.
(j) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.

37 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
(a) Bargain collectively and in good faith with the Union as
the exclusive collective-bargaining representative of employees
at the Respondent’s Saint Peters facility in the appropriate unit
set forth below:

All full-time and regular part-time employees employed in the
MTT classification at the Employer’s Saint Peters, Missouri
facility, EXCLUDING all utility operators, office clerical and
professional employees, guards, supervisors as defined in the
Act, and all other employees.

(b) Within 14 days from the date of this Order notify all
hourly employees at the Saint Peters facility that the provision
in the Company’s employee handbook which prohibits employ-
ees from distributing literature at any time for any purpose is
rescinded, void, of no effect, and will not be enforced.
(c) Within 14 days from the date of this Order rescind, if re-
quested to do so by the Union, the changes in base pay rate for
hourly maintenance employees at the Saint Peters facility that it
unilaterally implemented after the representation election of
June 5 and 6, 2002.
(d) Within 14 days from the date of this Order rescind, if re-
quested to do so by the Union, the incentive pay programs for
hourly maintenance employees at the Saint Peters facility that it
unilaterally implemented after the representation election of
June 5 and 6, 2002.
(e) Within 14 days from the date of this Order rescind the
unilateral change, made on July 23, 2002, which altered the
areas where hourly maintenance employees at the Saint Peters
facility were permitted to take their breaks, and notify all such
employees that the change has been rescinded.
(f) Within 14 days from the date of this Order rescind the
unilateral change, made on July 23, 2002, which discontinued
the practice of allowing hourly maintenance employees to work
on personal projects at the Saint Peters plant during their non-
work time, and notify all such employees that the change has
been rescinded.
(g) Within 14 days after service by the Region, post at its fa-
cility in Saint Peters, Missouri, copies of the attached notice
marked “Appendix.”38 Copies of the notice, on forms provided
by the Regional Director for Region 14, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since May 10, 2002.

38 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1200
(h) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.