Emerson Electric Co.

36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Emerson Electric Company, White-Rodgers Division and International Union , United Automobile , Aerospace and Agricultural Implement Workers Of America (UAW), AFL-CIO. Cases 26-CA-2394 and 26-CA-2510. May 31,1967 DECISION AND ORDER MEMBERS BROWN, JENKINS, AND ZAGORIA On March 21, 1967, Trial Examiner Boyd Leedom issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended dismissal of those allegations. Thereafter, the General Counsel and the Respondent filed exceptions to the Trial Examiner's Decision, and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, Emerson Electric Company, White-Rodgers Division, Batesville, Arkansas, its officers, agents, successors, and assigns , shall take the action set forth in the Trial Examiner's Recommended Order. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed, insofar as it alleges violations not found herein. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BOYD LEEDOM, Trial Examiner: The issues in these consolidated cases are whether Respondent interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Labor Management Relations Act through certain alleged interrogations and threats and by 165 NLRB No. 15 granting additional insurance benefits; and Section 8(a)(1) and (3) of the Act by assigning two employees to arduous and disagreeable tasks, laying them off, and discharging one of them. The case was heard before me in Batesville, Arkansas, on October 25 through 27, 1966. On the basis of the whole record in the case, my observation of the witnesses on the stand, and the briefs filed in behalf of Respondent and the General Counsel, I make the Findings of Fact and Conclusions of Law hereinafter set forth; and recommend that Respondent be found in violation of Section 8(a)(1) as to certain allegations, that certain others be dismissed, and that the allegations of violation of Section 8(a)(3) as to both employees involved be dismissed. FINDINGS AND CONCLUSIONS 1. THE EMPLOYER AND THE LABOR ORGANIZATION I find that the allegations of the complaint are true concerning the nature and the volume of business carried on by Respondent, and conclude therefrom that Respondent herein is an Employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act; such allegations are admitted in Respondent's answer. I also find and conclude that the Union named above is a labor organization within the meaning of the Act, a matter also admitted in Respondent's answer to the complaint. II. THE UNFAIR LABOR PRACTICES A. The Violations of Section 8(a)(1) In its plant at Batesville, Arkansas, Respondent is engaged in the manufacture of electrical thermostatic controls and burners for clothes dryers. The employees, 300 and more, consisting mostly of women, are not represented for the purposes of collective bargaining. Late in November or in December 1965, a campaign was started in behalf of the Union named above, Charging Party herein, to organize Respondent's plant. On February 2, 1966, Respondent was advised by a letter from the area director of the UAW of the Union's organizing activity. The letter was received by Respondent on February 3 or 4. 1. The increase in insurance benefits On February 21, 1966, Respondent announced the following improvements in the employees' insurance coverage: (1) dependent coverage was extended to husbands of female employees whereas previously only wives of male employees were deemed to be dependents; this improvement was made effective February 7,1966; (2) life insurance was increased from $1,000 to $1,500; (3) weekly disability benefits were increased from $20 to $22; and (4) a $100 deductible major medical allowance covering 80 percent of the cost up to $10,000 was added. Benefits (2), (3), and (4) were made effective as of March 1, 1966. The complaint alleges that these benefits were granted in violation of Section 8(a)(1) of the Act in that they interfered with, restrained, and coerced the employees in their right to support the Union. Evidence was adduced on behalf of Respondent to show that before the letter was received advising of the Union's effort to organize the plant, and possibly at a time when Respondent had no knowledge of such organizational effort, Respondent had given consideration to the change in insurance coverage designated as (1), above, that is the extension of coverage to treat a husband as a dependent of EMERSON ELECTRIC CO. a female employee. This matter came under consideration, the evidence reveals, by reason of the recently enacted Federal law prohibiting discrimination against women employees. If the insurance additions granted had been limited to making husbands dependents, under the coverage, there would have been a closer question whether this benefit, granted unilaterally with knowledge of the Union's interest in the plant, would have constituted a violation. But the other benefits had no relation to the new Federal enactment . These other benefits, under all the circumstances including Respondent's unquestioned opposition to the Union, seem quite clearly to have been granted in violation of the Act. I so find and conclude. While it can be said it is settled law that an employer is not always foreclosed from announcing or granting economic benefits during a union's organizational campaign, it is equally well settled that he cannot announce such benefits, although previously determined upon in good faith, for the purpose of causing employees either to accept or reject the union; or grant such benefits under circumstances that establish or support an inference, that the respondent's action necessarily tends to interfere with the employees' rights. See True Temper Corporation, 127 NLRB 839. As I have indicated there is evidence tending to establish that consideration of the "dependent" coverage antedated knowledge of the Union's activity. There is nothing, however beyond the surmise of Respondent's witness John C. Rohrbaugh, to the effect that it would be most unusual if any such decision to grant the other increased benefits would have been made without a considerable period of prior planning. It seems reasonable that if Respondent saw fit to introduce evidence, as it did, about the earlier consideration of the additional insurance coverage respecting women's dependents, it would have offered the evidence of earlier planning as to the other benefits. Lacking the offer of such other evidence I conclude there was none and draw the inference that the decision to grant the extra insurance benefits hereinbefore designated as items (2) through (4) was made after Respondent acquired knowledge of the Union's activity in the plant. I also conclude that under the circumstances prevailing when the announcement of such additional benefits was made it necessarily tended to discourage the employees' support of the Union. Documentary evidence offered by Respondent supports the conclusion that the increase in life insurance, the weekly disability benefits, and the major medical allowance were late additions to the proposed change in insurance coverage ; and that any substantial planning relating thereto came after Respondent had received the letter advising of the Union's activity among the employees. Thus while Respondent argues that the additional benefits, under question, were made as a result of employee demand as revealed in the tabulation of the results of an employee survey, a letter of Respondent's Mr. Craig, dated February 4, 1966, addressed to management people within the Respondent Company concerning the employee opinion survey, makes no mention of employee dissatisfaction with insurance coverage, notwithstanding it purports to enumerate all of the more serious dissatisfactions of the employees. Equally significant is the paragraph in this same memorandum from Craig indicating that minor changes in the group insurance plan had been discussed but specifying only the change that 37 would permit employed wives to carry their husbands as dependents. The tabulated report of the results of the survey also seems to refute the current contention of Respondent that the employees were unhappy about their insurance, inasmuch as 83 percent of the employees are reported in the tabulation to be satisfied with the group insurance. The Craig memorandum is Respondent's Exhibit 24. There is still other evidence indicating that the insurance benefits, except the one relating to husbands as dependents, came as an afterthought, that is that it received consideration only after Respondent's receipt of the February 4 letter notifying management of the union activity in the plant. Respondent's Exhibit 25 is dated February 5, 1966, and is an intercompany memorandum from Craig supplied to others in management indicating only the provision that employed wives could carry their husbands as dependents and that a "nonduplication clause on benefits" would be added to the insurance coverage. But there are on this typewritten memorandum penciled notes bearing dates of February 8, 9, and 21 referring to the other changes. Respondent's Exhibit 26, a letter dated February 9, 1966, addressed by Respondent to the Travelers Insurance CQmpany refers only to the provision for husbands as dependents and the nonduplication clause. Respondent's Exhibit 27 dated February 18, 1966, another letter from Respondent to the same insurance company, requests the Company to provide the provisions at the Batesville, Arkansas, plant for the increase in life insurance, the increase in the weekly disability income, and the major medical plan. The foregoing evidence, and the absence of specific evidence documentary or otherwise tending to show earlier consideration of the additional benefits in life insurance, weekly disability payments, and the medical plan, quite clearly establish that such benefits came under consideration and were decided upon only after the Company knew of the Union's activity. While this late addition of these rather substantial benefits, announced as they were several weeks after the organization campaign had started within the plant, and after the Company had received formal notice thereof, support the inference that the purpose of the announcement was to discourage the employees' support of the Union, the Act is violated absent any such inference, in that these benefits granted under the circumstances then prevailing in the plant, in and of themselves, regardless of motive, necessarily tend to discourage support of the Union. I so find and conclude. In addition I draw the inference, and find, that these additional benefits were granted and announced for the- purpose of discouraging the employees in their support of the Union. Accordingly I find and conclude that the granting of the additional insurance coverage violated Section 8(a)(1) of the Act. 2. The alleged violation of 8(a)(1) by Supervisor Stilwell The consolidated complaint alleges only two instances of violations of Section 8(a)(1) through employee conversations with supervisors. One of these allegations is that Supervisor J. David Stilwell told employees that it would be futile for them to select the Union to represent them; and threatened employees with the loss of benefits and jobs if they selected the Union as their collective- bargaining representative. The evidence adduced in behalf of the General Counsel in support of these allegations involves a conversation 299-352 0-70-4 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD between Stilwell and only one employee, Earline Wheeler. She initiated the union campaign in the plant and remained a strong union adherent. Her testimony is the only evidence offered in behalf of the General Counsel directly in support of the alleged Stilwell violation. She testified that on April 27, 1966, she met Stilwell in the plant , that he asked where she was going, and she responded they were going to get union cards signed. She testified he responded: Well . [cursing] Earline, when are you ever going to learn that the damn Union is not going to do anything for you? All they want is your money Don't you know you are going to have to pay your dues when you are sick , or when you are out on strike? It won't do you a damn bit of good, if you do get a Union. The Company has their damn rules , and by ... we're going to go by them. If you get a Union,-If you want to bargain, by ... we'll bargain with you ... If you want a 15 cent raise, then we will give you the raise, but ... we will take away your personal time Wheeler testified in addition that she told Stilwell he could not take away her personal time because there was a law protecting women, and that Stilwell then told her she was in for a surprise when the election was over because she would not be around ; she then told him she would be around because "we" meaning the Union , were going to win the election . She testified he then said "You wouldn't walk off and leave these girls holding the bag, would you?" On cross-examination she testified that the entire conversation was a friendly one. This testimony however came only after it was pointed out to her on the witness stand that the statement that it was a friendly conversation appeared in a pretrial affidavit she had made. As Wheeler testified concerning the conversation with Stilwell, setting out with some emphasis his profanity, it seemed to me she was seeking to give the impression that Stilwell spoke with great feeling if not animosity utilizing the profanity to so characterize his statements. After testifying on cross-examination that the conversation was a friendly one and that if Stilwell got mad she did not know it, she again seemed to resort to the purpose of establishing that Stilwell 's conversation , with all its cursing, as she claimed , did reveal animosity or belligerence , by stating she did not appreciate the conversation at all and added, "We didn't come to blows." Her suggestion of real hostility, contained in the statement "We didn't come to blows " is a characterization of the nature of the Stilwell conversation not consonant with her affidavit, and is typical of this witness ' tendency to color her testimony , as I judge it . This attitude is a factor I rely on in discrediting her story where it conflicts with that of Stilwell. Another factor is the discrepency between Wheeler's testimony and her pretrial affidavit concerning the part that the two alleged discriminatees in the case, Wanda Lassiter and Ruby L . Milligan, played in the Union's organizational campaign . In her testimony Wheeler swore that these two women were among the first union adherents and that they helped her sign up other employees for the Union. But in her pretrial affidavit, notwithstanding that she set forth the names of the others who had helped solicit employees , she failed to name either of the two discriminatees ; and she made a second affidavit for the General Counsel providing certain supplemental information and matters previously overlooked and did not add these two names. Supervisor Stilwell impressed me as being a fairly credible witness , and as between his version of the critical conversations with employee Earline Wheeler, and hers, I credit Stilwell , as previously indicated . He testified that the first conversation he had with Wheeler in which the Union was mentioned took place on the parking lot, a conversation concerning which Wheeler did not specifically testify. There as they met, according to his testimony , she asked him if he wanted to "buy" a union card. He responded that he did not but asked if she had any and she opened her purse and displayed several. His testimony then indicates that there was a general conversation about working conditions in the plant. It was several weeks following the earlier conversation that the one took place in the plant about which Wheeler testified in some detail . There is considerable similarity in the versions of Wheeler and Stilwell concerning this second conversation , but also some differences . Stilwell testified that Wheeler again started the conversation, as they met , by asking him if he was ready to buy a union card , and that the discussion continued about the plant and the Union and other unrelated subjects. Stilwell's recital about the conversation carries with it a tone of authenticity apart from the favorable impression of reliability the witness gave as he testified . He did not deny that he used profanity but stated he believed he did not, and that if he did it was done unconsciously. He specifically denied Wheeler 's statement that he ever said that Respondent would bargain if necessary but would take away the employees ' personal time , acknowledging however that they did talk about the personal time and the effect of Arkansas law on employees ' free time. Stilwell also denied that he told Wheeler she was in for a big surprise because she would not be around after the union election. He testified that on the contrary she mentioned that the employer was in for a big surprise that might come that night. He also gave a completely plausible statement concerning Wheeler's testimony to the effect he asked her if she would go away and leave the other women employees holding the bag. I credit his version concerning this statement. Stilwell specifically denied the statements attributed to him by Wheeler (in her pretrial affidavit that was not admitted in evidence) that at a meeting near the coffee machine he said she should get her coffee first because she would not be around much longer but would be behind bars in a big building ; and if he had time he would come by and shake hands with her. On the basis of the credible evidence relating to Stilwell's conversations with Wheeler I fail to find anything coercive or intimidating in anything Stilwell said. I therefore recommend that the allegations of the complaint respecting Stilwell's alleged violation of Section 8(a)(1) be dismissed. It is unfortunate that one Yvette Mitchum, former employee and friend of Wheeler, who was present during much if not all of the critical conversation between Wheeler and Stilwell, was not called to testify. Her testimony might have been helpful in making the credibility determination between the conflicting stories of the witnesses Wheeler and Stilwell. 3. The alleged violation of 8(a )(1) by Supervisor Carter The complaint alleges that Respondent's Supervisor John M. Carter interrogated the employees concerning their union membership and activities in such a manner as EMERSON ELECTRIC CO. 39 to interfere with, restrain, and coerce them in their Section 7 right to join or not join the Union. As in the case of the alleged violation through Supervisor Stilwell, the case made in behalf of the General Counsel depends largely on the testimony of the employee Earline Wheeler. On or about April 7, 1966, all of the Respondent's employees received a form letter bearing such date, addressed "To All Our Employees," and signed by J. C. Atterbury, general manager of Respondent. It is not claimed that any of the subject matter or material set out in this one-page form letter was violative of the Act. It dealt with problems arising in union organization efforts in a general way and also specifically as to some reports stated to have come to the attention of management as a result of the Union's current activity. A few days after this letter was received by Earline Wheeler, on April 11, as she testified, she was approached by John Carter, an assistant foreman. She testified he asked her if she had received the letter and she said she had; that he then asked what she thought about the Union and she told him she thought the plant needed one. Then there was conversation about the advantages of the Union and she testified Carter said " . . . if I didn't like my job, why didn't I get me another one, or why didn't I quit." She asked if he wanted her to and he said, as he testified, "No." She then told him she had been for the Union for' 5 years and since he now knew it, did it make any difference and he said, "No." There was a discussion about the cost to the members of a union and when she advised him the union organizers had not discussed the cost with her Carter "acted real mad." The General Counsel's case rests essentially on this conversation as related by Wheeler on the witness stand. Carter's version of the conversation differs somewhat. His story is in agreement that the conversation started over the letter that was mailed to each employee. He testified he asked her if she had any questions or comments on the letter and that she responded, "Well, you wouldn't really want me to tell you, would you? ... I could tell you a bunch of lies, but you wouldn't believe them any way, would you?" Carter responded that he guessed he wouldn't believe the lies but told her if she had anything to tell him to go ahead and do it. He testified that she then said she thought the letter was very stupid and felt that it had been written directly to her; she had never tried to get any cards signed inside the plant; she didn't feel like she had any security; she wasn't being paid enough; and there was discussion about various transfers she had had from one job to another within the plant. This conversation, as Carter testified, led to her statement that if she was ever reassigned to work on gauge valves she would quit which prompted him to say "Well, if I didn't like my job I would quit." To which she responded: "Wait just a minute. Let me get this straight. Are you telling me to quit and get another job?" That he then said, "No. I, myself, would quit if I didn't like my job." She then indicated that there were two different jobs she could get. He also testified that she told him another leadman had asked her if she had signed a card, that she didn't feel it was any of his business and asked Carter if he did, to which he responded in the negative. He also acknowledged that he told her he responded in the negative. He also acknowledged that he told her he didn't think the Union "could help us any." Carter testified at considerable length about other matters discussed in the conversation. He testified in greater detail thenan Wheeler did. He specifically denied, and I credit his denial, that he ever said to her "If you don't like working here, why don't you go some place else?" While the essential differences in the testimony of Wheeler and Carter may not be tremendously significant, I gained the impression as I listened to the testimony, and as I carefully reviewed it from the record, that the report of Carter as to what was said and what occurred was the more accurate and reliable recital. I therefore credit his testimony as against Wheeler's, as I did in the case of Supervisor Stilwell. The point of most significance in this resolution of credibility would relate, it seems to me, to Wheeler's testimony that Carter in effect invited her to get a job someplace else. Having credited the Carter version, I find that in this connection he said essentially what he testified to, that is that when she complained about incidents arising in her employment he had stated to her that if he didn't like his job he would quit. I fail to find in this part of the conversation, and certainly fail to find anything else in either her version or his, that could be deemed a threat or an interference or coercion, related to her well-known adherence to the Union. The finding and conclusion I have made that Carter's conversation with Wheeler was not violative of the Act, is made against the background of Respondent's undisputed opposition to the Union and the admission that in its campaign there was a somewhat systematic though not extensive effort made through supervisors to contact employees at their work stations and to make known to them management's position that it preferred not to have a union in the plant. I have also taken into account the memorandum of "do's and don'ts" circulated by Respondent to all its supervisors setting forth in some detail what they could lawfully do, and could not do, in the campaign of opposition to the Union. I have also considered the bland admission made by Donald Snodgrass, manager of the controls division, tucked somewhat unobtrusively into his cross-examination, that at a management meeting there was a discussion about finding out as much as possible about the Union ". . . and who was for it and who was not. " In this cross- examination Carter had been asked whether at the management meeting Earline Wheeler had been discussed and Carter had responded, "It was precisely more on the things that management was expecting to do or not do so we would not intimidate Union activities in any fashion in our plant." Then came the question whether there was discussion of a purpose to find out who among the employees was for and who was against the Union; and the witness answered "Yes." If this answer "Yes" should be deemed as substantial evidence on the part of management to find out in one way or another who of their employees was for and who against the Union, it would at least tend to establish a purpose of unlawful surveillance. But the answer can hardly be regarded of serious portent in the situation present here. For as I view the evidence, there is really no substantial proof of any unlawful intrusion by management into the employees' right to support the Union. I deem it significant that in several months of activity by the Union only one employee of more than 300 was produced to testify concerning alleged unlawful interrogation, threats, or promises; and this one witness was by her own admission the mainstay of the Union and one who, as was noted even during the course of the hearing, displayed some inclination to embellish her knowledge, in her testimony. Inasmuch as I fail to find evidence of violation of Section 8(a)(3), as to the two employees hereinbefore 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD named, as hereafter appears, and find no violation of Section 8(a)(1), except as to the grant of additional insurance benefits , it is a reasonable conclusion, as revealed by the record, that Respondent, preferring not to have a union in its plant , opposed it , but in a manner intended to be lawful and actually in a way countenanced by law except for the grant of extra insurance. Thus it follows that as far as this record discloses, there was substantial and good-faith implementation of the "do's and don'ts" issued to the supervisors by the Company. Without exception the witnesses in supervisory positions who testified in Respondent 's behalf impressed me, in somewhat varying degrees, as being conscientious and quite forthright persons. For all the reasons set forth above I recommend that the allegations of the complaint that Supervisor Carter violated Section 8(a)(1) by unlawful interrogation of employees be dismissed. B. The Allegations of 8(a)(3) 1. Wanda Lassiter The complaint alleges that Respondent , because of Wanda Lassiter's union activity, laid her off from about July 26 to July 28, 1966, and from about September 12, continuing to the date of the issuance of the complaint, September 20, 1966. At the hearing the complaint was amended to allege that after issuance , Respondent discharged Lassiter because of her union activity. I find and conclude that the evidence adduced on behalf of these allegations does not predominate in their favor , and that on the contrary Lassiter was on sick leave from time to time and finally discharged because of a persistent case of contact dermatitis that could not reasonably be controlled so long as she worked in the plant. Lassiter first went to work for Respondent on November 19, 1962, and quit on April 4, 1963. She was rehired on April 26, 1965, was laid off because of a lack of work on June 25, 1965, and was recalled on September 27, 1965. On this date until her discharge on October 3, 1966, she worked steadily except for intermittent medical leaves of absence. There is no evidence that the employee was ever laid off except when she was given leave to visit a doctor or was put on leave of absence on a doctor's recommendation , because of her dermatitis. Lassiter had interviewed her private physician as early as August 1965 because of the rash on her hands, which was later determined to be contact dermatitis resulting from her exposure to cleaning fluids in Respondent's plant. When the condition kept recurring, and Lassiter reported it to Respondent, she was sent to a company physician. Then as a result of the doctor's recommendations Lassiter was given 6 weeks of sick leave during which time she drew workmen's compensation. When she returned to work at the end of the sick leave the dermatitis recurred on her second day of employment and again she was put on sick leave. The evidence reveals that the decision had been made on August 3, 1966, when Lassiter was given the 6 weeks' leave of absence ending September 12, 1966, to terminate her employment if the dermatitis recurred on her return to work at the end of the leave period; and that she would have been terminated when it did recur on her second day of employment except for the company policy not to discharge an employee during the period of a job -related disability. Thus the discharge came at the end of the second leave period when the medical report indicated that the dermatitis had cleared up. As early as August 2, 1966, Doctor Bob Slaughter, who had been treating Lassiter, issued his written report after repeated treatment , advising her and Respondent that she should seek other employment. The theory of the case in behalf of the General Counsel is that Respondent could have assigned Lassiter to some job where there would be no exposure to the cleaning fluid that caused her disability, and that such assignment was not given to her because of her union activity. The evidence however does not support the theory. In the first place Lassiter's union activity was as slight as any union adherent's activity could possibly be. There is no clear proof in the record as to just when her union allegiance came to the attention of any responsible person in management. There is no direct evidence that her union connection had anything whatever to do with her discharge , and nothing of substance to support an inference to such effect. It would seem strange that she out of over 300 employees, mostly women, would have been selected for dismissal because of her union activity, when a prime victim for the unlawful purpose, such as Earline Wheeler, was available. If Respondent had in mind any such wrongful purpose as showing other employees that dismissal would result from supporting the Union, it is not probable they would have selected either Lassiter or Milligan, the other alleged discriminatee. The evidence reveals two principal thrusts on behalf of the General Counsel to relate Lassiter' s union activity to work assignments where she would be exposed to the cleaning fluid that was causing her dermatitis. The first involves the assignments given her immediately following her return to work on July 19 after treatment. She had received and carried to Respondent the doctor's report that she was suffering from job-connected contact dermatitis caused by an unknown chemical, and instructing her to return to the doctor's office daily for a week. When she returned to work her Supervisor John Carter took her off the manifold line where she had been working and put her on the Dennison press where there was little if any exposure to the cleaning fluid Mozel, which Lassiter and others then suspected, or were even quite sure, was causing her difficulty. After working a week on the Dennison press she was reassigned to the manifold line where there was some exposure to the cleaning fluid. This reassignment , as Carter testified and there is no dispute about it in the evidence , was made at the instance of his supervisor, Don Snodgrass, as the doctor wanted Lassiter to resume her normal duties, thus enabling him to ascertain if she there came in contact with the chemical causing her dermatitis. Lassiter however felt, and it is implicit in her testimony, that the reassignment back to work where she would be exposed to Mozel was in retaliation for her support of the Union, and to help establish cause for her discharge because of her union support, under the pretext of physical disability. Thus she testified , that in subsequent conversations with Snodgrass, her union activity was discussed. According to her own testimony, however, she attributes nothing to Snodgrass that constitutes either a threat or a promise, relating to unionism , or that tended to establish in any degree that there was discrimination against her because of her union activity. She testified that Snodgrass invited her to come to his office to take 5 minutes to tell her all the reasons why she was for the Union. He testified that this EMERSON ELECTRIC CO. was not precisely what was said, but that in the general conversation where many subjects were discussed he advised her to feel free to discuss the Union with him at any time. I credit his version and also his positive denial that he ever told her she would never be discharged because of her dermatitis. It is not at all probable that any supervisor would make such a statement , when in fact the Company had let other employees go for this disability. The second principal effort to relate the Union to Lassiter's discharge had to do with previous cases of dermatitis in the plant involving other employees. Thus there was considerable evidence introduced, including some record evidence, concerning the cases of Melba West and Oma Lee Mitchell. The testimony of Lassiter and the cross-examination conducted in behalf of the General Counsel of management witnesses are intended to establish disparity of treatment of Lassiter in that when West and Mitchell developed dermatitis in the plant they were sent by the Company to a dermatologist, and also that special efforts were made to find work assignments that would relieve them of the exposure to the chemical causing their condition. It is clear however that both were discharged on account of the dermatitis. Contrary to the purpose for which General Counsel offered this evidence, I find and conclude that it strengthens Respondent's defense. Thus, it is clear from the record that dermatitis is a condition contacted by some persons in the plant, wherever assigned, and that special treatment cannot relieve such persons of the ailment. The histories of the employees West and Mitchell seem to me to establish that there was nothing more to be done for Lassiter than to let her go and they definitely set up precedent for dismissal by reason of dermatitis at times when there was no union activity whatever in the plant. On all the evidence bearing on the Lassiter case I find and conclude that: (1) Lassiter had a constantly recurring case of dermatitis that appeared at various work stations, some of which involved only slight exposure to the objectionable chemical, and in Respondent' s continual interchange of employees, among all tasks, to keep in balance the varying flow of production of integral parts of its product (and the widespread use of Mozel throughout the plant) it was impractical to try to assign Lassiter to a job that would prevent her dermatitis; (2) the manner in which Lassiter was dealt with was reasonable and her physical condition was just cause for her dismissal and was in fact the reason why she was discharged; (3) Lassiter's union connection was only minimal and no reason appears in the evidence why she among more than 300 employees would be selected for discharge on any union-based consideration; and there is no substantial evidence on which to draw on inference that Lassiter was discharged because of her union activity. It is for all these reasons I recommend that the allegations of the complaint respecting Lassiter be dismissed. 2. Ruby L. Milligan The complaint alleges that because of Ruby Milligan's union activity Respondent assigned her arduous and disagreeable tasks for periods from July 11 to 18 and August 29 to the date of the issuance of the complaint, that is September 20, and laid her off on July 18, all in 1966. There is no substantial evidence to support any of these allegations or any other discriminatory action against the employee. I therefore recommend that the allegations of the complaint with respect to her be dismissed. 41 Ruby Milligan's testimony reveals remarkable uncertainty as to dates when her work assignments were changed in the plant, the periods that she performed certain work, dates when she visited the doctor's office, the date she signed the union card, the number of union meetings she attended, the number of people she signed up as union members, when she wore a union button in the plant, and when she ceased to wear it; and in some parts of her story she displayed an evasive and argumentative attitude; all of which detract substantially from the probative value of her testimony. But this circumstance is not the only weakness in the proof of the allegations respecting discrimination against Milligan. For the record is almost totally devoid of proof of essential elements of the violation. Thus, the record quite clearly establishes that long before there was any union activity in the plant Milligan had been transferred from job to job without complaint, in transfers of essentially the same nature as those she claimed were discriminatory, when made after the Union began its organizational campaign; the periods when she was off work, and which are alleged to have been for discriminatory reasons, were actually sick leave based on her own doctor's recommendations to Respondent; long before she was engaged in any union activity (as early as February 1965 and the union campaign did not start until December 1965 or January 1966) she had been formally notified, in writing, of her deficient performance and bad attendance record, and was told she would have to improve or be terminated; there is no substantial proof that any of the persons in management who were responsible for putting her on sick leave had any knowledge of her union activity; her union activity was minimal ; credible documentary evidence establishes that she was again warned of poor performance; and at the time of the hearing she was back on the job following 6 weeks' sick leave granted to her because her own doctor could not say with any certainty whether her chronic back condition was temporary or of longer duration. In addition to these deficiencies in the evidence respecting the allegations of unlawful discrimination against her, there is nothing in the case to indicate that Respondent would select Milligan as the victim of discriminatory action out of more than 300 employees, about half of whom Milligan testified had worn union buttons in the plant. It appears from the record quite clearly that Milligan has suffered from a chronic back condition antedating by a year or more any union activity in the plant, that this has been partly responsible for a very bad record of absenteeism and tardiness, that because of her physical condition she was put on sick leave for periods that are now only claimed by her to be because of her union activity without any substantial support for the claim. It is for these reasons I have recommended that the complaint, as to Milligan, be dismissed. THE REMEDY Having found that Respondent has engaged in an unfair labor practice violative of Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proceeding, I recommend that Emerson Electric Company, White-Rodgers Division, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership of their employees in International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, or any other labor organization, by granting or promising any additional insurance or other economic benefits. (b) In any like manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activity for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post at its usual place of business, copies of the attached notice marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for Region 26 , after being duly signed by authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 26, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.2 IT IS FURTHER RECOMMENDED that any allegation of unfair labor practice, not herein found, be dismissed. ' In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 2 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 26, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our employees that: WE WILL NOT discourage membership of our employees in International Union , United Automobile , Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, or any other labor organization , by granting or promising any additional insurance or other economic benefits. WE WILL NOT in any like manner interfere with, restrain , or coerce employees in the exercise of their right to self-organization , to form labor organizations, to join or assist the above -named or any other labor organization , to bargain collectively through representatives of their own choosing, or to engage in other concerted activity for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. EMERSON ELECTRIC COMPANY , WHITE-RODGERS DIVISION (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 534-3161