Fasco Industries, Inc.

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