Emerson Electric Co.

EMERSON ELECTRIC COMPANY Emerson Electric Company, and International Union, Allied Industrial Workers of America, AFL-CIO. Cases 9-CA-4528, 9-CA-4726, and 9-RC-7658 June 26, 1969 DECISION , ORDER, AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On February 24, 1969, Trial Examiner Stanley N. Ohlbaum issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices in violation of Section 8(a)(1) of the National Labor Relations Act, as amended, 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 the Respondent had not engaged in certain other unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, and recommended that such allegations of the complaint be dismissed, that the objections to the election be overruled and the results of the election be certified, as further set forth in the attached Decision. Thereafter, the General Counsel, the Respondent, and the Charging Party filed exceptions 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 these cases to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision , the exceptions and the briefs, and the entire record in these cases, and hereby adopt the findings, conclusions, and recommendations of the Trial Examiner with the modification noted below.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Emerson Electric Company, Russellville, Kentucky, its In the light of all the evidence relating thereto, we adopt the Trial Examiner's dismissal of the complaint allegation based on an alleged statement by Personnel Manager Black to the effect that he would regard mere union talk by certain employees during working time to be solicitation prohibited by Respondent's rule However, in so doing, we find it unnecessary to pass upon the Trial Examiner's rationale that such remark, if made, would in any event not be unlawful 75 officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified, that a majority of the valid votes has not been cast for International Union, Allied Industrial Workers of America, AFL-CIO, and that said labor organization is not the exclusive representative of the employees in the unit found appropriate, within the meaning of Section 9(a) of the Act, as amended. MEMBER JENKINS, dissenting in part: I do not agree with my colleagues adoption of the Trial Examiner's conclusion that employee James Martin was discharged for nondiscriminatory reasons. Martin was allegedly discharged for giving a woman employee a pair of gloves for which he should have charged her 83 cents. Respondent conceded that but for this one incident which precipitated his discharge, Martin had been a good employee. The record discloses that not only had Martin been active on behalf of the Union but that Respondent's Personnel Manager Black, who terminated him, was aware of his union activities and admittedly testified that . . . "And I went on and told her [Ruth McGuire, Martin's sister] that I had picked up information that her brother James Ralph Martin was active in the union."' There is also testimony in the record that foremen had given similar gloves without charge to women employees on other occasions. Nor can it be ignored that Respondent sought to restrict union solicitation and that in the process it restricted Martin, a tool crib attendant, from leaving the toolroom without informing his foreman where he was going and how long he would be. When the above facts are considered in their totality, I am not persuaded that Martin was in fact discharged for his minor dereliction on the job but conclude that the incident was seized on as a pretext for his discharge. Accordingly, I would find that he was discriminatorily discharged. 'In light of Personnel Manager Black's admission, I find incredible the Trial Examiner's conclusion (TXD) that Respondent had no knowledge of Martin's union activity. TRIAL EXAMINER'S DECISION 1. PRELIMINARY STATEMENT; ISSUES STANLEY N. OHLRAUM, Trial Examiner: This consolidated proceeding' under the National Labor Relations Act as amended (29 U.S.C. Sec. 151, et seq.; 'The charge in Case 9-CA-4528 was filed by the above Union on November 21, 1967, resulting in a complaint ("Complaint No. I") issued on March 7, 1968, by the National Labor Relations Board's Regional Director for Region 9 (Cincinnati , Ohio) acting on behalf of the General 177 NLRB No. 4 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Act") was tried before me in Bowling Green, Kentucky, on October 8-15, 1968, with all parties participating throughout. The pleadings and referred matters' present issues as to whether Respondent Employer violated: (1) Section 8(a)(1) of the Act through (a) coercive interrogation of employees as to their union affairs, (b) attempting to enlist employees to report on organizational activities of fellow-employees, (c) surveillance over employees' lawful organizational activities, (d) creation of the impression of such surveillance, (e) imposing discriminatory and otherwise improper limitations upon employees' lawful organizational speech and other activities, (f) improper promises of economic benefits to employees in restraint of their exercise of lawful organizational rights, and (g) threats of economic harm or detriment to employees in restraint of their exercise of their rights under the Act; (2) Section 8(a)(3) of the Act by discharging and failing to reinstate employees (a) James Martin and (b) Sally Blackford because they exercised rights (membership in and lawful activities on behalf of the Union) guaranteed to them under the Act; and (3) requirements of the Act, in various respects, in activities preceding the April 19, 1968, Board-conducted union representation election. Subsequent to the hearing, time having been allowed and upon application twice extended for that purpose, briefs were filed by the parties. Having carefully considered these, together with the entire record and the demeanor of the witnesses as observed by me during their testimony at the trial, I make the following: FINDINGS AND CONCLUSIONS Ii. PARTIES ; JURISDICTION Respondent Employer, a Missouri corporation engaged at Russellville, Kentucky, and elsewhere in the United States in manufacture and sale of electrical products, during the representative 12-month period immediately preceding issuance of each of the complaints, sold and shipped directly in interstate commerce from its Russellville plant to places outside of Kentucky, goods and merchandise valued in excess of $50,000; during the same periods, Respondent purchased and received shipments at its Russellville plant , directly in interstate commerce from places outside of Kentucky, parts, supplies and equipment valued in excess of $50,000. I find that at all material times Respondent has been and is an employer engaged in commerce and in operations affecting commerce, within the meaning of Section 2(2), (6), and (7), and the Union a labor organization within the meaning of Section 2(5), of the Act; and that assertion of jurisdiction here is proper. Counsel of the Board The charge in Case 9 -CA-4726 was filed by the Union on May 15, 1968 , and resulted in a complaint ("Complaint No 2") issued and consolidated with the earlier complaint by the same Regional Director on July 25, 1968 One or the other or both of the complaints were amended on July 25 and August 6, 1968, and at the trial, and various portions of each of the complaints were withdrawn at the trial. On September 9, 1968, the Regional Director further consolidated for trial with these cases related issues arising out of the Union's April 25, 1968, objections timely filed to a Board-conducted union representation election among Respondent's employees on April 19 , 1968 (pursuant to the parties' stipulation for certification upon consent election , approved on April 3, 1968) resulting in a vote of 539 against and 400 in favor of union representation out of 1 ,007 eligible voters in an appropriate production and maintenance proposed bargaining unit "'Referred matters" are the union election Representation case issues consolidated for hearing here, as explained in In I, supra ill. ALLEGED VIOLATIONS OF SECTION 8(A)(1) AND (3) A. Background Respondent operates approximately 40 electrical products plants in the United States. The factory here involved is located in Russellville, Kentucky, a community with a population of around 7,000. It employs 900-1000 persons, about 55 percent of them females. Its primary product is hermetic motors for the refrigeration and air-conditioning industry, for direct sale east of the Mississippi . Employee turnover at this plant has been about 2 1/2 percent (i.e., around 20-25 employees) per month. Union organizational activity at Respondent's Russellville plant occurred in the spring of 1966 and started again in the late summer of 1967. It is in effect alleged (and denied) that Respondent on the latter occasion embarked upon a series of repressive measures in violation of its employees' rights guaranteed by the Act, until the Board-sponsored union election in the following spring (April 19, 1968), which the Union lost, allegedly in consequence thereof. The entire series of events here for consideration occurred between the late summer of 1967 and the early spring of 1968. To promote clarity, they will be treated chronologically.' B. Chronology of Events, with Findings and Rationale 1. August 1967 a. August 21-22, 1967: Plant Manager Johnson's speech to all employees concerning solicitation It is alleged that commencing in August, 1967, Respondent violated Section 8(a)(1) of the Act in various ways. Initially it is complained' that around August 22, Respondent's Plant Manager Johnson, in addressing employees assembled in groups on its premises at its request and expense, unlawfully restricted employees' rights by threatening them with discharge for discussing the Union amongst themselves on company time or for distributing Union literature on company property; and by threatening to move the plant out of Russellville if the Union was selected as the employees' bargaining representative. Undisputed proof establishes that on August 21 or 22 Respondent's then Plant Manager Johnson addressed assemblages of plant employees on company time in the plant. Exactly what he said is disputed, Respondent contending that Johnson limited himself to a written script which he read without deviation, while General Counsel contends that Johnson departed from the script in substantial respects. In the aspects here material , the script, which the credible evidence establishes either was read by Johnson or at least formed the core of his remarks to the employees on this occasion, recognizes the fact that a drive is under way to unionize the plant; questions the motives of the Union's outside organizers; cautions employees against union propaganda and organizing methods, and perhaps indulges 'The complaints, as amended, comprise no less than 44 separately numbered paragraphs and subparagraphs alleging specific instances of violations of the Act Since it is believed that to consider so large a number of allegations in the scattered sequence in which alleged , or even by mixed-date subject-matter groupment, would be unduly complicated or confusing, chronological treatment is utilized here This treatment has the added advantage of recreating the stream of events in its actual flow 'Complaint No. 1, pars. 5(a)(i) and 5(a)(u) EMERSON ELECTRIC COMPANY 77 in some counterpropaganda; reminds employees of their past "steady progress" without a union at the plant and that "I [Johnson] do not believe that you would, in the future, make more progress with a union than without a union"; points out that unionization is not automatically synonymous with wage raise, and that union campaign promises may be extravagant and may even eventuate in a strike; cautions that unionization could result in change of atmosphere from that of a pleasant factory to a warring camp, so as to reduce the efficiency and "success" of the plant; points out to employees that "your future and the success are closely tied up with the success of the International Union which is based in Washington, D. C., who is trying to organize this plant [and] is only remotely concerned with this plant"; calls attention to union members' liability to lawsuits to defray union-imposed fines; reminds employees of their right to withdraw from the union, while pointing out that signing or not signing a union card would have no effect on their continued employment; and concludes that "We hope that you will consider all of these reasons, and if you have more questions of concern that you will bring them to us before you sign a union card." Johnson's script also "re-state[s] . our longstanding rule" about solicitation, including signing union cards, "during working time within the plant" as being that "We do not permit solicitation of any type during working time"; and invites employees solicited in violation of this rule to call it to the attention of management so that it could be stopped. Respondent's Solicitation Rule The "longstanding rule" on the subject of solicitation to which Johnson referred, first posted in the plant in February 1966, and at various times reposted at sundry bulletin board locations throughout the plant, as shown below, was as follows: NOTICE TO EMPLOYEES Many of our employees have complained that they are being bothered and intimidated by other employees who are attempting to get them to sign union cards during working time. Every employee has the right to his own opinions and beliefs, and this right will not be interfered with no matter what his belief may be. We will not tolerate any activity contrary to this in any respect during working time. We all have a job to do, and in order to accomplish this job we must work together in an atmosphere of harmony and cooperation which does not include badgering, intimidation, solicitation or coercion in any respect. We are sure that we can count on your cooperation. /s/ Ed Johnson. Although there was testimony by a number of General Counsel's witnesses, plant employees, that they did not personally see or could not recall seeing this posted rule, many were careful to stipulate that they could not state whether or not or when or where the rule was or may have been posted, or otherwise to limit their professed unfamiliarity with the rule; while the testimony of other General Counsel witnesses appears to indicate awareness of the rule. Thus, General Counsel witness Polly Goodman, while agreeing there were bulletin boards in the plant, admitted awareness of only two, including one "on the side that the women set on in the lunch room... . There's one on the men's side. But I never look at it... . And then I don't know about any more. . . . Not that I seen." General Counsel witness Lucille Austin, likewise denying having seen the aforequoted notice posted on any plant bulletin board, testified that she "looked at" two of the bulletin boards "regularly" or "frequently" and a third "once in awhile," but was careful to point out that "I haven't seen one.... Well, I just didn't see it. . . . I did not see one." However, after first denying awareness of such a rule "before August 1967" Austin confessed she was familiar with the rule in 1966. Another General Counsel witness, Ida Harris, testifying that she could not "remember seeing anything like this [posted notice regarding solicitation] [on] the only two [bulletin boards] that I notice anywhere," stipulated that "I mean maybe there's maybe more somewhere else. But that's the ones that I go by each day.... Well, as far as I can remember I've never seen anything like this anywhere in the plant... I've never been all through the whole plant to notice everything.... [There are] only two [bulletin boards] that I pay any attention to." General Counsel witness Vera Hargrove also conceded that her bulletin board observation was limited to the bulletin board on the women's side of the lunchroom - "I look on there for our production [figures] .. . "I look at the production every day" - and another "in the winding room that I look at occasionally"; and likewise agreed that she was not "telling us that it was not on the bulletin board," but merely that "I have not seen it myself." General Counsel witness James Martin also limited his nonobservance of the Notice to the two bulletin boards which he looked at, one outside the toolroom, which he looked at "every day just about," and the other on the men's side of the lunchroom, which he "looked at . every once in awhile"; and on cross-examination he likewise conceded that "I don't know whether it was posted or not," but only that "I said I didn't see it,"' while also conceding that he "knew . . . that there was a rule at the Company against soliciting during working time. . . that was the rule that Ed Johnson, the Manager of the Plant, posted back in 1966." With respect to Respondent's aforequoted notice regulating solicitation, General Counsel witness Toni Pulley testified that "I have seen this on the bulletin board.... I saw it on the bulletin board on the right side of the lunchroom . . . . The women's side more or less," but that to the best of her recollection she had last seen it there about 15 months ago (i.e., around summer-fall 1966). She also testified she had seen still "another notice that pertains to solicitation" on a bulletin board, conceding further that she had not looked at bulletin boards in the plant other than the one in the lunchroom, "where they post our daily production. And that's the reason I look at it." Respondent's Personnel Manager Black, corroborated in essence by its Plant Manager Johnson, testified that the aforequoted "Notice" regulating solicitation was posted on six or eight bulletin boards throughout the plant,' originally in February 1966, and thereafter reposted once only in May 1966 upon fading, although not thereafter maintained on all bulletin boards. 'General Counsel's motion, on which decision was reserved at the trial, to strike from the record evidence pertaining to Martin 's alleged conviction or convictions is denied. I nevertheless credit Martin's testimony in this as well as other aspects as described below 'Respondent's Personnel Manager Black testified there are eight 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the indicated situation and upon the record as a whole, I find that the aforequoted "Notice to Employees" regulating solicitation was posted and thereafter reposted in May 1966; and that it was on at least one of Respondent' s main bulletin boards, namely the one on the women's side of the plant lunchroom, at least as recently as the summer or fall of 1966; and that it was that "Notice to Employees" (Resp. Exh 4) to which Respondent's Plant Manager Johnson alluded and which he described with substantial accuracy in the written script (Resp. Exh. 3) of his speech to plant employees on August 21 or 22, 1967 Returning to that aspect of Johnson's speech to assembled plant employees on August 21 or 22, 1967 dealing with solicitation, Johnson - then the Russellville Plant Manager and now Assistant to Respondent's Executive Vice President at St. Louis - swore unequivocally that he in no way deviated from the written script, which he delivered to six groups, covering three shifts, of employees, 900 to 1,000 in all. On the other hand, the testimony of several of General Counsel's witnesses indicates that he did deviate from the script Thus, according to "B" shift (3:30 p.m.-midnight) employee Austin, Johnson told a 150-employee group of that shift that employees "could not solicit on Company time" and "if. .. caught. . . they would not stop at the front office, they would go out the front door." According to Austin, Johnson limited his restriction against solicitation to "Company time," without, however, explaining what he meant by that term. Another "B" shift employee, Polly Goodman, testified that Johnson "told us that we would be fired if we were caught soliciting on Company time," but that she could not "remember" whether he "explain[ed] what he meant by Company time." Employees Ida Harris and Vera Hargrove similarly testified that in his talk to their group Johnson stated that there would be "no soliciting on Company time." However, employee James Martin , also testifying as General Counsel' s witness, swore that what Johnson said was "that they didn't want the cards signed, didn't want people working to get the cards signed, to get the cards signed in the plant during working hours. . . anyone caught doing so during working time would be immediately dismissed. . He [Johnson] said working time, during working time."' "A" shift employee Margie Miller testified that Johnson "said if we handed out Union cards, to do it on our own time . . . . we cannot hand out cards and get cards signed on Company time" while "[we] were working," apparently adding that "If you are going to work for the Union, get out and work outside the factory." In the far from satisfactory state of the record, considering among other things the well-known foibles of human memory of precise words heard in the past, and the defective and to an extent deviant recollections of the witnesses of General Counsel, who bears the burden of proof, I find myself unpersuaded that Johnson's words to the employee assemblages on August 21 or 22, with open-faced plant bulletin boards of which the "main bulletin boards in the plant" are considered to be the two in the lunchroom , and a locked "Fact-Rumor Board " 'Martin then stated he could not "remember exactly" whether Johnson said "Company time" or "working time," although Respondent 's counsel - together with the Tnal Examiner, in the given context - draws no distinction between the two When the portion of Johnson's August 21 script (Resp Exh 3 ) dealing with solicitation was read to Martin at the tnal, he conceded it at least "sound[s] pretty close to what he [Johnson] said " regard to solicitation, were otherwise than in the written script (Resp Exh. 3) which he read or from which he spoke. I find that on the occasion in question Johnson informed employees that - in accordance with Respondent's established existing rule (Resp. Exh. 4) theretofore or then posted - solicitation of union cards "during working time" was and would not be permitted. A rule forbidding union solicitation by employees during working time in any plant area is presumptively valid. Stoddard-Quirk Manufacturing Co., 138 NLRB 615. Inasmuch as no valid reason has been shown to overcome the force of this presumption so far as the rule itself is concerned," it is concluded that Respondent's rule as found and the reminder thereof by its then Plant Manager Johnson were in and of themselves not unlawful. b. August 21-22, 1967: Plant Manager Johnson's speech to all employees, concerning threats to close or move Russellville plant in event of unionization Returning again to Plant Manager Johnson's August 21 or 22 speech to groups of employees, it is necessary to consider whether or not he strayed from the literal script in respects other than the matter of solicitation during working hours which has just been discussed; specifically, whether he threatened that Respondent would move its Russellville 'plant if the employees selected the Union for collective bargaining . No less than four employees testified - to my view, creditably - that he did; while, as will be shown, the testimony of Johnson himself - who on the whole impressed me as a man to be believed - does not shut it out. According to "B" shift employee Austin, Johnson stated that "he [Johnson] had bought his home there [i.e., Russellville] and he sure did like to live here [i.e., Russellville], and he sure would hate to move off and leave it. Then he said they had 39 Emerson plants and they could do with 38."" General Counsel witness Polly Goodman, a "B" shift employee, testified convincingly that, on the occasion in question, Johnson, after indicating that he was aware of a budding Union organizational campaign, "told us how many plants that Emerson had, and he [Johnson] said that he had bought his home here and he liked living here, and he would hate to move. He said that Emerson could do without Russellville." According to "B" shift employee Vera Hargrove, a highly impressive General Counsel witness, Johnson "said that Emerson had 39 plants and they could do with 38 just as well, and that he liked Russellville, liked the people in Russellville , and that he would hate to leave. . . I remember those words exactly. I remember those words exactly.... It's just that that stuck in my mind "'° 'The matter of whether or not the rule was indiscriminately as distinguished from discriminatorily enforced in actual operation, is considered below, in connection with specific instances of its application 'On cross-examination , Austin conceded the possibility that Johnson's remark about the 39 and 38 plants might have been made at some meeting other than that on August 21 Austin was professedly unable to recall the context of Johnson's alleged remark concerning the 39 and 38 plants "On cross-examination, Mrs Hargrove conceded a degree of uncertainty as to the date of the speech in which Johnson made the remarks she thus attnbuted to him Since, however, Johnson himself denied making any other speech to assembled employees in August, and only one extremely brief one in September on an unrelated subject (announcement of plant wage increase), this would seem to render Mrs Hargrove 's perhaps overconscientious degree of doubt of precise date to be of no practical significance, particularly considenng other independent testimony adequately establishing the occasion and date. EMERSON ELECTRIC COMPANY General Counsel witness James Martin testified that Johnson on this occasion stated "that they didn't want a Union in the Russellville plant and they would do everything in their power to keep it out ."" Margie Miller, an "A" (i.e., day) shift employee, testified that after indicating awareness of a union organizational campaign and questioning the motives of one of its organizers and the economic obligation or danger flowing from signing a union card , Johnson , red in face and chewing a cigar, struck the desk , exclaiming , "You've got this whole factory scared . . . it's got me scared , too.... if the Union came in ... we do not have to bargain with the Union [we] could move any part or all lines.. ... adding that employees should be thankful for "a good job ... If you value your job, you will not sign no Union cards... . if you are going to work for the Union, do it outside the factory," as he "hit[s] the desk and he point[ed] outside." It will be noted that - to say nothing of certain other remarks attributed to him but not here material - at any rate nowhere in the written script of Johnson 's speech does there appear any mention or suggestion of closing, moving, or discontinuing the Russellville plant in the event of its unionization . Johnson broadly denied that he said this. In this denial he was supported to an extent by Respondent's Personnel Manager Black , an impressively credible witness , who, however, conceded that he did not attend all of the group speeches made by Johnson on the date or dates in question; thus, knowledge of the subject on Black's part is admittedly incomplete . As for Johnson, under cross-examination he conceded that while delivering these talks to employees in the lunchroom he moved 2 to 4 feet from the podium without carrying with him the text of the speech , which he "left. . . on the podium and walked to the side," during all of which time "I was talking." Although Johnson denied straying from the script while conceding he "might have " done so, it requires no exercise in surmise and casts no discredit on Johnson to visualize - considering the positive , credible testimony of employee witnesses there present - that while he thus wandered from the podium he also wandered from the script in the manner attributed to him by those witnesses . This conclusion is to a degree reinforced by the precisely honed phraseology of Johnson's testimonial responses to questions concerning whether he made "a reference to your home" (Johnson's replies were that he did "not recall " and "Not that I know of"); his responses to questions as to whether he "made reference to Emerson having 39 plants" (conceding that he had, Johnson testified that "I don't recall specifically when it was . It was not in my talk of the 21st," and that he had indicated in "small group meetings" that in the event of a strike at Russellville "Emerson had 39 plants and if this [Russellville] plant was on strike and we only had 38 plants in operation, Emerson would continue as a corporation in business"); and his responses to whether he had voiced a preference not to move away from Russellville ("I might have said that to an individual sometime " but "not. . . in relation .. . to the Union drive. . . . Frankly , I don't recall how I said it"). Impressed as I was with the described testimony in this aspect of General Counsel's witnesses - who at Respondent's insistence had been segregated - even in the face of clear conflict, considering comparative "It is not here intimated that such a statement is unlawful or improper, it being necessarily assumed that Respondent had in contemplation lawful means. 79 demeanor within the penumbra cast by the case as a whole I would have experienced difficulty in rejecting all of their testimony as contrived. When, however, to this is added the less than unequivocal nature of Johnson's responses - even assuming them to be no more than the product of imperfect memory, the corroborative lacunae resulting from Black's conceded absence from some of Johnson's deliveries, and the absence of other proof to supply the defects in Johnson's memory, I am impelled to the finding hereby made, that Johnson did indeed on the occasion or occasions in question indicate that Respondent would move its Russellville plant in the event of its unionization for collective bargaining. That, in the context described, such intimation of plant removal in the event employees succeed in exercising their statutorily guaranteed right to organize themselves for collective bargaining, constitutes an impermissible economic threat in violation of the Act, as is here concluded, is not open to doubt. It is well settled that economic threats, such as of plant shutdown or removal, or of job loss, in the event of unionization, are violative of the Act and not within the "free speech" proviso of the Act (indeed, Section 8(c) explicitly so states). N.L.R.B. v. Virginia Electric & Power Co., 314 U.S. 469, 477, 478; N.L.R.B. v. Eastern Die Co., 340 F.2d 607, 608 (C.A. 1), cert. denied 381 U.S. 951. "We have held that remarks made within the context of an organizing campaign to the effect that employer would close the plant if the union got in were violations of section 8(a)(l). Florence Printing Co. v. N.L.R.B, 333 F.2d 289, 290-291 (4 Cir. 1964)." Holly Hill Lumber Company v. N L.R.B., 380 F.2d 838, 841 (C.A. 4). To the same effect, see The Little Rock Downtowner, Inc., 143 NLRB 887, enfd. as modified, 341 F.2d 1020 (C.A. 8). The same is true of employer statements of the possibility of shutdown in the event of unionization, N.L R.B. v. Tru-Line Metal Products Company, 324 F.2d 614, 616 (C.A. 6), cert. denied 377 U.S. 906, "notwithstanding sincere belief that such result would follow." United Fireworks Mfg. Co. v. N.L.R.B., 252 F.2d 428, 430 (C.A. 6). Although here, as frequently, after the words have served their purpose the employer tries to make light of them and to minimize their force, it seems fair to presume they were uttered in order to be effective; and, to the employees, they emanated from a source having the power to carry them out. Cf. N.L.R.B. v. Eastern Die Co., supra A threat need not be carried out in order to be coercive in its impact. Id, 142 NLRB 601, 602, fn. 2; The Rein Company, 114 NLRB 694; Forest Oil Corporation, 85 NLRB 85, 86. Typically, such threats are sought to be masked in the language of "prediction"; but this does not alter their character as coercive pronouncements intended, as here, to restrain employees' free exercise of rights to organize and bargain collectively as guaranteed by the Act. Cf. N.L R.B. v. Miller, 341 F.2d 870, 873 (C.A. 2); Wausau Steel Corporation v. NL.R.B., 377 F.2d 369, 372 (C.A. 7). Textile Workers Union of America v. Darlington Manufacturing Co, 380 U.S. 263, dealing with employer preference for plant closure rather than collective bargaining, is not to the contrary. There speaking for the unanimous Court, Mr. Justice Harlan warned, 380 U.S. at 274, fn. 20: "Nothing we have said in this opinion would justify an employer's interfering with employee organizational activities by threatening to close his plant, as 8© DECISIONS OF NATIONAL LABOR RELATIONS BOARD distinguished from announcing a decision to close already reached .... "' c. August 21 -22, 1967: McKenzie v. Martin It is further alleged" that around August 22, 1967, Respondent through its Supervisor McKenzie created the impression that he had an employee's union activities under surveillance by telling him [James Ralph Martin] that it knew he had been distributing union authorization cards and to hand them over and by further telling him that his sister [Ruth McGuire] was known to have passed out such cards; that the employee was on the same occasion threatened with discharge for union activities; that on the following day the same supervisor with respect to the same employee again created the impression that he had the employee's union activities under surveillance by telling the employee that he knew the employee had again been talking to other employees about the Union "but that he [McKenzie] had checked and found that the said employee was talking about another subject"; and that, also on the latter day, because of the employee's union activities and in order unlawfully to prevent union solicitation on Respondent's property, McKenzie instructed the employee to receive permission from him or another supervisor upon leaving his duty station. On these allegations, Respondent's former employee James Ralph Martin - discharged by Respondent on September 8, 1967, under circumstances to be detailed - testified that on the occasion in question he was called to the office of Respondent's Production Control Supervisor McKenzie, where he encountered the latter as well as Assistant Production Control Supervisor Jureka. According to Martin, when he entered the office McKenzie said, "James [Martin], hand me your card." When Martin inquired, "What card," McKenzie replied, "Union card." Martin responded, "I don't have any," to which McKenzie allegedly retorted, "We know that you are passing out Union cards. Three different employees have come and told us that you were passing out Union cards." According to Martin, McKenzie "went on talking and said he [McKenzie] was surprised at me [Martin] helping work for the Union. He said he knew some of those boys back there was but he didn't know that I was, and he went on and explained about the Union that they had had in St. Louis, and told me that they was glad they was out of it, and said that they didn't want a Union in the Russellville Plant; that if I was caught passing out Union cards, I would be immediately dismissed. He went on to ask me had anybody talked to me during the time, had I been talking to any Union representative, and I told him I had, that Mr. Minnick, one of the representatives from the IBEW, called me to talk to him. On the way out - the conversation was over, and he went out with me and he told me that he knew and that Mr. Johnson, the Plant Manager, knew that my sister [Ruth McGuire] in the winding room was passing out cards, and he told me to tell her to stop that or she would be losing her job, and so I did. . . . When he asked me about passing the cards out I told him I wasn't passing any cards out. . . . I was never told that I had been passing out Union material during working time." "The same is true for a partial discontinuance or transfer of operations intended to "chill unionism" at the employers other locations td at 274-276; case on remand 165 NLRB No. 100, enfd , 397 F.2d 760 (C A 4), cert denied 393 U S 1023 "Complaint No. 1, pars 5(b)(i), (u), (iii), ( iv), and (v). Regarding the foregoing, Respondent's Assistant Production Control Supervisor Jureka testified that on the occasion in question his superior, Production Control Supervisor McKenzie, informed him that he (McKenzie) had just been informed by Winding Room Foreman Nuyt that Martin - attendant of the toolroom under McKenzie's supervision - was in the winding room conversing with an employee and he (Nuyt) wanted to know why. While McKenzie was recounting this to Jureka, McKenzie received a telephone call from Rotor Finishing and Die Casting Section Foreman Knight, that Martin was conversing with an employee of that section. When McKenzie and Jureka proceeded there, they encountered Martin returning toward the tool crib, where they notified him of the complaints received and asked him where he had been and why. Martin replied that on his return to the tool crib from the boiler room, where he had gone to take a rock salt inventory (part of his regular duties), he had come through the winding room and had stopped in the rotor finishing section to talk to an operator there with regard to helping Martin put up some hay. Under the circumstances, Jureka instructed Martin that in the future he should notify McKenzie, Jureka, or a subforeman when Martin was leaving the toolroom, where he was going, and about how long he would be away. According to Jureka, at this point Martin spontaneously volunteered the information that "he [Martin] was not affiliated with or was not an organizer for the Union, and he felt that the complaint that had been received was relative to the fact that he had a reputation, or supposedly had a reputation of being a Union organizer," to which no response was made to Martin and which information was not reported. According to Jureka, Martin had previously also spontaneously volunteered to McKenzie and him "that he was not affiliated with the Union and he didn't want us to have the impression that he was in any way trying to organize as far as the Union was concerned," and had consistently denied to employees teasing him on the subject that he was affiliated with the Union. Jureka flatly denied the occurrence of the alleged episode in McKenzie's office described by Martin, in all of its aspects. Jureka also denied the existence of any rule forbidding talking in the plant. Respondent's Production Control Supervisor McKenzie, in its employ 19 years, likewise flatly denied Martin's account of the alleged episode in McKenzie's office, corroborating in essential detail (with insubstantial variations) Jureka's testimony as recounted above. Additionally, however, McKenzie testified that about a week after the incidents involving the reports received by him from Foreman Nuyt and Knight regarding Martin's alleged conversational peregrinations (i.e., around mid or late August), Martin came to McKenzie's office "and he [Martin] was upset, he was turning his tickets in, and he said that everybody believed or thought that he was working for the Union and he wasn't, and that he was going to quit if we thought he did work for the Union. I [McKenzie] told Ralph [Martin] that this was probably his imagination, and nobody - I didn't believe this, and to forget about it and go on back to work, which Ralph did." According to McKenzie, he and Jureka instructed Martin, on the occasion in question, in view of "two phone calls in . . . . five minutes, in order to keep this from happening again we asked Ralph [Martin] to let us know when he was leaving and this way, when somebody called, if they were at the tool room and wanted a pair of plugs, a tool or something, and they'd call me and ask where Ralph is, I could tell them, or Bob could tell EMERSON ELECTRIC COMPANY them, Mr. Jureka." Winding Department Foreman Nuyt, who had observed Martin conversing with an employee (Ruth McGuire, Martin's sister) under Nuyt's supervision while at work, corroborated his role in the foregoing. As is apparent , this aspect of the case involves essentially issues of fact . After weighing all circumstances carefully, and mindful of the burden upon General Counsel to establish each and all of the elements essential to proof of the allegations made and to a determination of violation of the statute , I find that the substantial credible evidence does not fairly preponderate in favor of the version of events put forward by Martin as opposed to the version put forward by McKenzie, Jureka, and Nuyt. As to the one element of this aspect of the case regarding which there is no substantial conflict - namely, the instructions issued to Martin by McKenzie and Jureka around August 22 or 23 to notify either of them or a subforeman in the future when leaving Martin 's toolroom unattended , I find that this was well within their prerogatives as Respondent's supervisors over Martin, particularly under the circumstances described and in view of the nature of Martin's duties; and that General Counsel has failed to establish by substantial credible evidence that this action was taken in consequence of any union or other protected activity on the part of Martin or in order unlawfully to prevent solicitation of employees on behalf of the Union on Respondent's property as alleged. d. Late August 1967: Black v. McGuire It is alleged" that in the "last part" of August 1967, Respondent through its Personnel Manager Johnson T. Black created the impression that its employees' union activities were under surveillance by telling an employee [Ruth McGuire] "that her [i.e., Ruth McGuire's] name had not been turned in to him for passing out union authorization cards, but that said employee's brother's [i.e., James Ralph Martin's] name had been turned in to him for engaging in such concerted activity." As to this, General Counsel's witness Ruth McGuire testified that on the occasion in question she "went to see Mr. [Personnel Manager] Black and asked him if my [McGuire's] name had been turned in for passing out Union cards and he [Black] said, 'No, Rethie [sic], your name has not been turned in,' and he wanted to know who told me and I told him that my brother [James Martin] had. He said, 'No, your name hasn't been turned in but,' he said, 'I'll tell you, James' [Martin's] has.' So, I told him, I said, 'Well, Mr . Black,' I said, ' I don't know what he does.' I said, 'We don't stay together or anything but,' I said, 'if he was passing them out I 'd be surprised ....' Mr. Black told me, said.... 'If he's passing them out I'll be surprised, too."' According to Mrs. McGuire, she thereafter became active in the Union campaign. At the date of the trial of the instant case, she was still in Respondent's employ. The version of this incident furnished by Respondent's Personnel Manager Black was that Mrs. McGuire "came to the office and stated that she had been told that she and her brother had been reported to the management, to me I assume she was referring to, as being active in the union. And I told Ruthy [McGuire] that I had no knowledge of any information , any information of this nature concerning her. And I went on and told her that I 81 had picked up information that her brother James Ralph Martin was active in the union . And at this point Ruthy stated to me that she didn't know about her brother, but she knew for sure that she wasn't active in the union. She did not know about her brother but that she would be very surprised if he were active in the union. And at this point I believe I laughed and stated that I would be quite surprised also if he were active in the union." Black swore that he had heard about Martin not in the course of any information-gathering activity on his part, but because "It seems that the personnel department is more or less a gathering place for scraps of information. And as I walk through the plant, or my assistants, various people stop and give us these scraps and bits of information constantly." I observed Personnel Manager Black, who testified at length concerning this and other aspects of the case, to be an impressively credible witness, given to careful and understated expression. Certainly in the normal course of the exercise of his responsibilities as Personnel Manager of a large plant, certain matters touching personnel were observed by him or were brought to his attention by his subordinates as well as by rank-and-file employees. It is to be noted that Mrs. McGuire visited his office of her own accord to initiate the described conversation, and that apparently all parties concerned were in agreement that Martin was not active in the Union. I accept Black's version of the incident , which while not inconsistent with that of Mrs. McGuire, is fuller. Under the circumstances described, it would be farfetched and unwarranted to regard the incident as amounting to the creation by Black of the impression of surveillance or as in any realistic way to have been coercive. The fact is that Mrs. McGuire, as she testified, later joined the Union and is still employed in the plant. I find that the described circumstances do not constitute the creation of the impression of surveillance by Respondent over employees' union activities in any way such as to constitute interference, restraint, or coercion of employees under the Act. e. Last week of August 1967: Robertson v. Harris It is alleged" that during the last week of August 1967, Respondent's Foreman Robertson conveyed the impression that he had the employees' union activities under surveillance "by telling an employee that Respondent was watching another employee, and that if Respondent saw the other employee do anything concerning the union, that the other employee would be discharged"; and that Robertson on the same occasion told the employee if employees selected the Union as their bargaining representative Respondent 's Russellville plant "would probably be moved as had Respondent's plant in St. Louis, Missouri." On these matters, Respondent's employee Ida Harris testified that around the last week of August 1967, her foreman (or assistant foreman) Owen Robertson approached her at her machine and "asked me [Harris] if I knew how Regina Casebier [a fellow employee] stood at this time with the Union, that she had worked before real strong, and he [Robertson] wanted to know how she stood this year, and I told him I didn't know. He said, Well, she was being watched and if they seen anything out of her this time it would mean her job. Then he went on to say "Complaint No. I, par. 5(t). "Complaint No. 1, pars. 5(c)(i) and 5(c)(u) 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the plant would probably be moved out if the Union came in out there, and he said that everybody was being watched, and if they seen anybody giving Union cards to anybody on Company property, that them and the person receiving the card, they would both be fired." On cross-examination, Mrs. Harris testified she thought this occurred "the same day" as Johnson's speech (i.e., August 21 or 22) in which "he [Johnson] said that there would be no soliciting, that's what Mr. Johnson said," whereas "what Owen [Robertson] said [was], anywhere on Company property at any time." Also on cross-examination, Mrs. Harris conceded that a pretrial affidavit supplied by her to General Counsel contained no mention whatsoever of any statement by Robertson as to discharge for passing out union cards on company property or time. Her explanation for this omission was that "at the time that I was trying to think of what to put down there I just didn't think of all of it, then. . . I thought of it since then." According to Mrs. Harris, the fellow-employee alluded to, Mrs. Casebier, was active in the Union and is still in Respondent's employ. The foregoing testimony by Mrs. Harris stands totally undisputed by Robertson, who, while testifying on other matters, was silent on this subject. Thus, resolution of these particular issues rests squarely upon weighing the credibility of Mrs. Harris. She impressed me at the trial as a person well worthy of belief. I was unaffected in this impression by her failure to mention, in her pretrial affidavit to a Board agent, a matter regarding which she testified (and which is not specifically alluded to in the complaint); her explanation for the omission - namely, that the Board agent typed as she talked, and she had simply neglected to mention this detail - rang true to me as I observed her, recognizing as I do upon the basis of long experience that such lapses and later recollections are by no means unusual. It is accordingly found that the allegations of the complaint in the respects under consideration have been established by a fair preponderance of substantial credible evidence. f. August 27, 1967.• Plant Manager Johnson 's threat of futility of unionization It is further alleged" that around August 27, 1967, Plant Manager Johnson told assembled employees that if they selected the Union as bargaining representative Respondent would not have to deal with it, thereby suggesting the futility of organizing for collective bargaining . Aside from the described testimony of employee Margie Miller who , as shown, ascribed such a statement to Johnson during his speech of August 21 or 22, there is an absence of evidence supportive of this allegation . Johnson flatly denied addressing any assemblage of employees at any time in August other than as described on August 21 or 22, and further flatly denied making such a statement at any time . If Johnson had addressed assembled employees on August 27 and made the statement alleged , it seems highly likely that other employees would have heard him and remembered it and that they could have been produced to so testify without mincing words . Under the circumstances , I credit Johnson and find this allegation not established by substantial credible evidence." "Complaint No 1, par. 5(b)(ui) "The further allegation (Complaint No 1, par 5(a)(iv)) that at an employee assemblage around August 27, 1967, Johnson told employees 2. September 1967 September 8, 1967: Discharge of James Martin" It is alleged that on September 8, 1967, Respondent discharged James Martin from its employ because of his Union affiliation and activities, and to discourage membership therein." Disputing this, Respondent contends he was dismissed for cause. Martin entered Respondent's employ in January 1966, as a tool cutter. By the end of that year he had been advanced to the position of tool clerk, in sole charge during the "A" (day) shift of the toolroom, maintaining an inventory of tools and supplies, including ordering and issuing them to employees in accordance with governing Company policies. He functioned under supervision of Assistant Production Control Supervisor Jureka and Production Control Supervisor McKenzie, who conceded that except for the incident precipitating Martin's dismissal on September 8, 1967, he had been a "good employee." Among the supplies dispensed to employees by Martin in his capacity as tool clerk or toolroom or toolcrib clerk, were various types of gloves. With some exceptions not here applicable (for example, when authorized by a supervisor)," it was and is Respondent's policy to charge female employees for at least some such gloves. It was Martin's duty as toolroom clerk to observe this policy, by either collecting cash or obtaining a signed charge or payroll deduction slip from employees to whom such gloves (or other work supplies and tools) were issued by him. Thus, Martin's job as toolroom clerk involved not only efficiency on his part, but was a position of trust, since to a degree the integrity of Respondent's supply system was dependent upon his honesty and adherence to Company policy and rules in its supply administration. According to Martin's own testimony: On September the 8th [, 1967], at break time, at 2:00 o'clock break, Edna Babb, a girl that takes the same break that I [Martin] do, she came up to me and asked me if I had a pair of gloves that she could use. She was separating rollers outside the tool room. I told her yes. At the end of break time she went back to the tool room with me and I got the pair of gloves and gave them to her, and she asked me how much they were and I told her to take them and use them, and that was all that was done. . . . Around 3:15 Mr. McKenzie [Martin's supervisor] came to the tool room and asked me could he see my ticket book. I showed it to him and he wanted to see the money box. I showed it to him. I said, "Mr. McKenzie, what's wrong?" He said, "I'll let you know later." Around 3:30 he called me, he said, "On your way home stop by Mr. [Personnel Manager] Black's office." On the way home I did. When I went in Mr. Black's office he had a written statement, signed they would receive a wage increase if they refused to select the Union as their bargaining representative , was withdrawn by General Counsel at the trial "The allegation (Complaint No 1, par 5(h)) as added by paragraph 4(h) of July 25, 1968, amendment ) that during the first week of September 1967, Respondent's Foreman Gooch threatened an employee with discharge unless ceasing support of or activity on behalf of the Union, was withdrawn by General Counsel at the trial "Complaint No I, par 6. "The instances of receipt of gloves or tools without charge testified to by General Counsel witnesses Polly Goodman and Toni Pulley clearly fall in this category EMERSON ELECTRIC COMPANY 83 by Edna Babb, of me giving her the gloves and her offering to pay for them, and he told me, he said, "Ralph [Martin]," he said, "Mr. McKenzie is sitting here and he said that you know the tools in the tool room that you are supposed to charge for and the ones that you are not", and said, "we are going to give you a three day suspension pending discharge." He said, "After three days you can come back and talk to Mr. Johnson, the Plant Manager." Personnel Manager Black subsequently notified Martin that "they had talked it over and that I [Martin] was being discharged." At the trial, as before his superiors at the plant, Martin freely conceded that he should have charged the established price of 83 cents for the new goatskin gloves he gave Babb for nothing. His explanation at the trial - as previously to his plant superiors - for his action in giving gloves to Babb was simply, "I don't know how I did it. She just asked for a pair of gloves that she could use . . . she showed me how nasty her hands was. They had grease all over them, and smoke. They had a fire out there over the week end and that's what she was doing, separating the good rollers [used in motors] from the ones that had been burned brad, and that's what she wanted with the gloves, she told me." On cross-examination, Martin conceded that Babb, whom he knew outside of the plant, had offered to pay him for the gloves, with money actually in her hand for that purpose: She [Babb] asked me [Martin] how much the gloves was. She had the money in her hand and I told her to take the gloves and use them and that's all that was said. She walked away from the window. . . . I don't know [why I didn't take the money], I just - she asked me at break time if she could use the gloves. I don't know what I had in my mind when I let her have the gloves. She had the money in her hand to pay, and she asked, "How much are they?" and I said, "Take them and use them." In contradistinction to his foregoing testimony at the trial, however, it is noted that at a hearing held before Examiner Hallie Richardson at the Department of Economic Security, Bowling Green , Kentucky, on October 5 and 19, 1967, Martin swore that he did not know whether or not Babb offered to pay for the gloves, and also that Babb did not offer to pay for them." Respondent's witness and Production Control Supervisor McKenzie testified that he checked Martin's toolroom receipts for gloves issued on September 8 (finding none) at the request of Personnel Manager Black, to whom Martin's action in issuing gloves free to Babb had been reported by General Foreman Taylor, to whom in turn it had been reported by "A" shift Subforeman Savage. Since, according to McKenzie's testimony, Respondent maintained no inventory of stock of gloves on hand in the toolroom and there was no audit of Martin's accounts, it is apparent that reliance was placed upon the toolroom clerk's honest and otherwise proper administration of these supplies. McKenzie testified - consistently with Martin's testimony - that Martin had no authority as toolroom attendant to give away supplies without charge, but was required to collect cash or obtain a signed receipt for supplies issued, and accurately to record the distribution of all property under his control. The testimony of Respondent's Personnel Manager Black indicates that it was he who - after ascertaining all "Resp Exh. 1. of the facts and giving Martin the opportunity of explanation - made the ultimate decision to dismiss Martin for his described supply administration infraction in issuing nonexpendable gloves to Babb on September 8 free of charge. Black denied any directly comparable incident, involving a supply room clerk's giving away of company property even of small value, in Black's 7 or 8 years at the plant; but that in every prior instance of dishonesty (perhaps a half-dozen), such as falsification of production records, by employees at the plant the employees involved had invariably been discharged even though it was a first offense. As explained by Black: ". . . this former employee [Martin], at the time he was in the tool crib, was entrusted with quite a bit of material . And I don't believe it's eighty-three cents we're talking about. I think it's a matter of the principle that this man had access to this other material and that there could have been hundreds or thousands of dollars of material given away without any ready check being made on it. It was a lack of trust or responsibility there more than it was eighty-three cents." Asked why Martin could not have been transferred to other duty rather than dismissed, Black explained: "I believe that the only job that James Ralph Martin had held prior to going into the tool crib was on a production job. Now, on a production job a operator is required to keep the number of pieces of material that they produce during the day. And if a man will be dishonest in the tool crib then there's reason to believe he may be dishonest in turning in his production card. Therefore we didn't feel like we would have a place for him even in production. . . . There were direct labor jobs.22 However, with the seniority program we have, I'm not sure whether we were even hiring very many people at that time, but I don't feel like that we would want to take the chance on any of these other jobs.... We knew this had happened once in a position of responsibility. And we didn't want it to happen again, sir. 11 With regard to Martin's union activity, although Martin's testimony indicates he engaged therein to Respondent's knowledge in connection with the unsuccessful 1966 unionization campaign - notwithstanding which he was promoted in job and raised in pay - and possibly to a lesser extent in the 1967 campaign, there is no persuasive proof that his participation in the 1967 campaign, whether outside of or inside the plant, was known to Respondent; much less that it was in any way extraordinary, unusual, or such as to make Martin, as distinguished from other avowed Union sympathizers, a marked man on that account. Martin testified that he did not hand out Union cards on Company time, and in his 1967 testimony before the Kentucky Department of Economic Security23 he swore that he never passed Union cards out. The testimony of General Counsel's rebuttal witness, Lewis Mathews, corroborating that of Martin, establishes that on the occasion in August 1967, referred to above in another connection, when Martin was reported for having a discussion with him in the plant, it was not union matters "Presumably at substantially lower pay than Martin was receiving There is no evidence that Martin at any time displayed any interest in any such job, nor that after his dismissal he ever applied for employment of any sort with Respondent "Resp Exh 1. 9 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they spoke about but baling hay. There is every indication in the record that, unlike Martin, numerous Russellville employees were open and avowed Union activists; with no evidence that any of them has been discharged or in any way the object of discrimination or recrimination on that account. Martin himself testified that at the time of his discharge his wife, sister (Ruth McGuire), and brother, all "active in the Union," were working at the plant and that they are still working there. In this aspect of the matter, when Jureka and McKenzie spoke to Martin regarding his August conversational peregrinations in the plant, Martin spontaneously pointed out to them - as he had on prior occasions - that he was not only not organizing for the Union but that he was not even affiliated with it . Jureka and McKenzie denied any contrary knowledge . The same is true for Personnel Manager Black , who, it will be recalled , readily agreed with Martin's sister Ruth McGuire that Martin was not active for the Union, when Mrs. McGuire visited him in late August . The long and short of it is, that whether or not Martin was active on behalf of, affiliated with, or even interested in the Union 1967 organizational campaign , it has not been established by substantial credible evidence that Respondent possessed knowledge thereof. More fundamentally, however, even if Respondent knew of or suspected Martin's involvement in the 1967 unionization attempt, the substantial credible evidence fails to establish that he was dismissed for that reason. On the contrary, the evidence shows that he was fired because he misused his trust - at any rate in Respondent's opinion - in his administration of the toolroom by issuing nonexpendable property of Respondent to an employee free of charge, in violation of Respondent's express rules to the contrary known to him . It is not for a Trial Examiner of the Board to pass upon the reasonableness of Respondent's personnel policies as to the level of honesty or efficiency required of its employees, in the absence of evidence that they were discriminatorily promulgated or applied. There is a total absence of such evidence here. Under these circumstances, inquiry as to whether or not Respondent was justified in dismissing Martin for the indicated infraction , which some may regard as trifling, is irrelevant. The Act does not require employers to be compassionate toward employees. It merely requires them to do what the Act says they must do and to refrain from doing what the Act says they must not do . N.L.R.B. v. Waterman S.S. Corp., 309 U.S. 206, 218-219; N.L.R.B. v. Ogle Protection Service, Inc., 375 F.2d 497, 505-507 (C.A. 6), cert. denied 389 U.S. 843; N.L.R.B. v. Redwing Carriers, Inc., 284 F.2d 397 (C.A. 5); Dieckbrader Express, Inc., 168 NLRB No. 113; Kayser-Roth Hosiery Co., Inc., 166 NLRB No. 56; Lindsey's, 156 NLRB 1114; Guyan Machinery Company, 155 NLRB 591. Under the circumstances, and entirely apart from any sympathy or understanding for the possible plight in which Mr. Martin found himself because of his perhaps charitably motivated violation of his employer's supply administration requirements, I am constrained to find that it has not been established by a fair preponderance of substantial credible evidence that Respondent's discharge of Martin on September 8, 1967, was because of his union membership, affiliation , sympathy, or activity, or to discourage union membership. "Complaint No . 1, pars. 5(c)(Iii), (iv), (v), and (vi) 3. October 1967 a. September-October, 1967: Robertson v. Webb It is alleged=" that during September or October 1967, Respondent through its Foreman Robertson created the impression that its employees' union activities were under surveillance by telling an employee that he knew union representatives had been to the employee's home; that employees would be discharged for their union activities; and that Respondent was stockpiling motors in a bus terminal which it had acquired so that some employees could be discharged in the event of unionization of its plant. Regarding the foregoing , General Counsel witness Lloyd Webb, who worked for Respondent from 1964 until he quit at the beginning of December 1967, testified that around October 1967, he was visited at his home by Union Organizer Betty Heiby and fellow-employee Lucille Austin. About 2 weeks thereafter, Webb was visiting Respondent's Assistant Foreman Robertson at the latter's home. Webb is Robertson's stepfather-in-law. On the occasion of this visit, according to Webb, his stepson-in-law Robertson told him that Robertson's supervisor, Foreman "Lee Friedel was very much disturbed, and I [Webb] asked him [Robertson] why, and he said, `Over the Union.' He said that they knew that they had been coming to my house, and said he [and Lee Friedel] knew it and there was other people that knew it. . He [Robertson] said they was going to have to get rid of some of the best workers on account of it, and they had bought a plant - he told me they had bought a bus terminal and was filling it with motors in case that they [i.e., the Union] did come in they could lay off part of them.... Lucille Austin' s name was [mentioned as] .... one of them that was going to have to be fired herself, that's what he told me." On cross-examination, Webb, after refreshment of his memory from a pretrial affidavit furnished to a Board agent, added that on the described occasion Robertson also told him that he (Robertson) had seen "the Union, meaning Mrs. Heiby and Lucille Austin, visit [me] at [my] home." Robertson's responsum to these accusations was in effect a flat denial . According to Robertson, the only conversation he had with Webb concerning the Union was about 2 weeks before Christmas 1967, when according to him (but not according to Webb, who swore he quit on December 2) Webb was still employed at the plant, at which time Webb asked Robertson his opinion of "what I [Robertson] thought would happen when they had the election . . . the union . . . or . . . the company . . . . I told Lloyd [Webb] I didn't think they [the Union] would win . . . Lloyd [Webb] led me to believe that he was on the company's side. He didn't seem to think much of the union or that the union had a chance either." Asked how he gets along with his stepfather-in-law (Webb), Robertson replied that he does and that "I don't see him a lot. I guess that's getting along." When Webb was asked what he was doing at Robertson's home on the occasion in question, his reply was, "It so happens that my wife's daughter married him"; when asked whether he saw much of his stepson -in-law (Robertson), Webb responded, "When he wanted something, yes . . . . a favor." There is thus presented a direct clash of testimony, requiring credibility resolution . As between the two accounts described , comparing testimonial demeanor of EMERSON ELECTRIC COMPANY the witnesses as observed by me at the trial, and considering the unlikelihood of a man of Webb's type fabricating such a story out of the whole cloth, as well as the fact that what is thus ascribed to Robertson by Webb bears a resemblance in certain respects to what was credibly ascribed to him by General Counsel witness Ida Harris without denial by Robertson, as described above, there resulted in my mind a testimonial preference for Webb's version, which I accordingly credit. It is therefore found that the foregoing allegations of the complaint here under immediate consideration have been satisfactorily established. b. Late October 1967;" Tatich v. Harris It is alleged3e that in late October 1967, Respondent's supervisor, agent and Plant Engineer Tatich told an employee that if the employees selected the Union as their bargaining representative the Russellville plant would close down. General Counsel witness Ida Harris, an employee of Respondent, testified that while working in the company of Tatich on Respondent's float in the 1967 Russellville Annual Tobacco Festival, in late October of that year, she asked him "how he [Tatich ] thought the Union was doing this year, and he said he didn't think they was doing too good, and he said if the Union should come in the plant would probably have to move out like the one in St. Louis did." According to Mrs. Harris, at this time she was unaffiliated with the Union; and, although she was at the time personally unaware of Tatich's precise status, she knew he had an office and desk in the plant and wore street clothes (as distinguished from a work uniform) there. Tatich's testimony regarding the foregoing was, in the frame of reference of my close observation of his demeanor, eninently unsatisfactory. His initial statement that he could not "recall" such a conversation was followed by a statement that "I knew I didn't say anything like that," which was in turn succeeded by another statement that "I can't recall this because this is a fun project. And normally you don't talk about work . . . That's the point. I can't recall talking about any union business." He then again said, "I know I didn't make a statement like that. . . Well, what I'm getting at, I've been in this business, in supervision so long I wouldn't make a statement like that." Finally, asked directly what was said by him or Mrs. Harris, he replied, "Well, I can't recall any union conversation or any statement that I made to her. . . At that time I don't recall any union conversation." Faced with the necessity for choosing between the described two witnesses, whose demeanor I observed, I have little hesitancy in preferring Mrs. Harris, who I do not believe fabricated her testimony. By way of contrast to her clear and credible account, I could not avoid the impression that the version adduced to meet her testimony was either the result of bona fide lack of recall or was hedged and evasive. It is, of course, clear that coercion can take place while working on an employer's float as well as in his factory. I find that the "The allegation (Complaint No 1, par 5(c)(vii)) that in mid-October 1967, Respondent's Foreman Robertson threatened that the Russellville plant would close if the employees selected the Union as bargaining representative, was withdrawn by General Counsel at the trial. "Complaint No . 1, par. 5(dXi). 85 allegation here under consideration has been satisfactorily established. c. October 31, 1967: Surveillance by Friedel Respondent's General Foreman Friedel is accused27 of committing surveillance over Respondent's employees' protected concerted activities on October 31, 1967. Credited testimony28 establishes that on the morning of October 31, 1967, Union organizer Betty Heiby and Respondent's employee Lucille Austin visited the home of Lloyd Webb, who was at that time in Respondent's employ, in order to solicit him to affiliate with the Union. In driving to Webb's home, Heiby and Austin passed the home of Respondent's General Night Foreman Friedel, who lives about four houses away from Webb on the other side of the street. As they passed Friedel's home, they observed him standing or sitting29 on the steps. According to Austin, after they parked the car and went up the steps of Webb's house, Friedel was observed to be standing on his (own) lawn, at a distance of approximately 110 feet,30 on the other side of the street, "behind a little small tree" which Austin described as perhaps 10 feet tall and 6 inches in diameter; and when they emerged from Webb's house 45 minutes later Friedel was still there and waved to them as they went by. Conceding that he saw Heiby and Austin drive by his home as described, while he was seated on his own porch, and park and enter Webb's house, Friedel denies that he thereafter left his porch to go behind a tree or otherwise to observe Webb's house, or that he saw them leave. According to Friedel, although he knew Austin since she worked on his shift ("B" or night shift), he had never seen and did not know who Heiby was at the time, and did not convey to anybody at the plant that he had seen them visit Webb. To the extent of inconsistency, I credit Friedel's version. On these facts, I find that Respondent did not engage in surveillance over employees' protected concerted activities in violation of the Act. On the occasion in question, Friedel was on the porch of his own home, where he of course had the right to be. There is no suggestion that he was aware that Heiby or Austin would be visiting Webb; Friedel was at the time totally ignorant of who Heiby was; there is a total absence of any indication that at any time Friedel had any awareness of the purpose of the visit to Webb's home or of who was there being visited; and at no time - even under Austin's version involving the "small tree" on the lawn - did Friedel attempt to conceal his presence, at the considerable distance where he was. This is not surveillance. Friedel was where he had the right to be, and he saw what he did presumably only because he happened to be there. The Act does not require employers' supervisors relaxing on the porches of their homes to retreat indoors under the described circumstances; nor 27Complamt No 1, par 5(g), as amended August 6, 1968 281.e , of General Counsel witnesses Austin and Webb, and of Respondent's witness Fnedel. "General Counsel witness Austin first said one, then the other ,.According to General Counsel witness Lloyd Webb, the distance between his house and that of Friedel is about 500 feet, apparently with a road ("Briggs Addition") separating the two houses, which, as already stated , are on opposite sides of the street Respondent's witness Friedel estimates the distance between the two houses at 525-600 feet 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to make an affirmative attempt to avoid seeing what is there.31 4. November 196732 a. November 16,1967: Johnson v. Austin, Goodman, & Hargrove It is alleged33 that around November 16, 1967, Respondent through its Plant Manager Johnson threatened employees with discharge because of their "union activity." General Counsel witnesses Lucille Austin, Polly Goodman, and Vera Hargrove testified that on the evening of November 16, 1967 they were individually called to the winding room office, where, in the presence of Personnel Manager Black and Assistant Foreman Adler, Plant Manager Johnson informed them that he had received various complaints against them for soliciting on behalf of the Union on company time, and that, after calling to their attention his August 21 remarks to the employees on the subject of such solicitation, he warned them of discharge in the event of further complaints. According to the testimony of all three, Johnson clearly indicated that his stricture was limited to soliciting "on Company time." Austin testified that Personnel Manager Black expressly agreed with her that she was within her rights in soliciting on her own (lunch, supper, and break) time. All three denied solicitation on company time. Credited testimony of Respondent's Assistant Foreman Adler, Personnel Manager Black, and Plant Manager Johnson establishes that just prior to the described occasion in November 1967, Adler had received complaints from employees whom he named (stockboys Louis Lamb and Danny Smith afainst Polly Goodman and Regina Casepeer or Casebier for "harassing them and trying to get them to sign a union card. . . . during working hours at the plant" while actually at work; coil winder Dot Capps against Lucille Austin for "trying to get them to sign a union card ... during working hoursi ... during the time that they were on the job. . . . She [Capps] came to me sort of mad. Said she was getting tired of it ... being bothered about signing a blank-blank union card every time I go around her machine"; and liln view of the finding here made and the dismissal upon the merits of this allegation of the complaint, Respondent's motion (upon which decision was reserved at the trial) to dismiss this allegation as barred by Sec 10(b) of the Act, is dismissed as academic 32Allegations (Complaint No. 1, pars. 5(e)(ui), as added by amendment of July 25, 1968, and 5(e)(u)9 that Respondent's Supervisor Adler around November 7, 1967, created the impression of surveillance over employees' union activities by telling an employee that he had seen him talking to a union organizer, and that in mid-November Adler forbade employees from conversing and moving about together so as unlawfully to prevent union solicitation on company property, were withdrawn at the trial by General Counsel 33Complamt No. 1, par 5(a)(v) "Adler later explained that no action was taken against Casebier since "She was just with Polly [Goodman] They were actually accusing Polly " "While not alleged in the pleadings , some evidence was adduced in an apparent attempt to demonstrate that Respondent did not enforce its proscriptions against worktime solicitation evenhandedly . Thus, employee Polly Goodman spoke of a 1967 Christmas party or small get-together of the employees on her line, for which a spot collection was made from her by Adler allegedly during worktime, she having been absent the day before when it had been discussed; and employee Ida Harris spoke of her peddling of cosmetics for a period of perhaps a year and a half "at break and lunch time, or supper time, whichever " (Emphasis supplied.) It is noted that Harris' activity was not during Company or worktime, and it would seem Carolyn Hinson against Vera Hargrove for asking her "two or three times during the time they were working on the line to sign a union card"). These employees asked Adler "how they could go about getting these people [Goodman, Austin, and Hargrove] off of their backs ... I told them that I couldn't go right up and tell them to stop it and smack their hands. But I'd take them to the personnel department . . . ," and he did. Adler took the complaining employees (Lamb, Smith, and Capps) to Personnel Manager Black , to whom in Adler's presence (except in the case of Capps, when Adler was not there) they repeated their complaints. Written statements were procured from the complaining employees by Personnel Manager Black, who reported the situation to Plant Manager Johnson with the recommendation that "we do something about it." In consequence of this recommendation, the three offending employees - Austin, Goodman, and Hargrove - were called to meet with Plant Manager Johnson and Personnel Manager Black (both of whom appeared at the night shift for the occasion), as well as Adler, on or about November 16, 1967, and after being told about the complaints and the signed statements attesting thereto, and reminded of Johnson's August 21 remarks on the subject of working time solicitation, were warned to refrain from further such infraction of Respondent's rules. On the basis of the foregoing and the record as a whole, it is apparent that Respondent had a reasonable basis for believing that the three employees in question - Austin, Goodman, and Hargrove - had violated its lawful rules against solicitation on Company or working time. Under the circumstances, Respondent was justified in calling this infraction to the offending employees' attention at the time and in the manner that it did. This being the case, it would be unwarranted to conclude, as alleged in the complaint, that its action constituted an unlawful threat of discharge for union activity. It is accordingly found that the complaint allegation under discussion has not been sustained.' absurd to regard the isolated instance of a spot collection from one of a small get-together of line employees (which one had been absent the day before when the matter was discussed ) as justifying the opening of the sluice gates to wholesale union solicitation during paid working time A potentially significant possibly disparate application of the no working-time solicitation rule was hinted at in testimony of employee Pulley, to the effect that in the 1966 organizational campaign she spoke to fellow employees "in favor of the company as much as I possibly could" during worktime as well as breaktime, to the alleged knowledge of unnamed supervisors; and that she continued this to an undescribed extent at the "beginning" of the 1967 campaign, to the presumed awareness of her foreman (Nuyt) who did nothing about it, and also that after early February of 1968, "ELE" (Emerson Loyal Employees Club, antiunion) button-wearing employee Kay Pendleton was permitted to speak to her and they "just discussed who was promoting the ELE club and, other than that it was just general conversation about her [Pendleton 's] injury " Pulley further testified in general terms that "ELE" button-wearers "asked other people to wear them . . I guess every chance they got . . During breaks and working time, too"; but she conceded that she "could not swear" that she "ever observe[d] a supervisor or foreman see this taking place." All circumstances considered, upon the record as a whole, including the presumable facility - in a factory population of 1,000 employees - with which substantial factual proof could have been adduced along these lines to make a substantial credible showing of truly disparate application of the rule , I am loath to accept and base firm findings and conclusions upon such meager and evanescent generalities It is accordingly concluded that - even though not pleaded and fairly litigated - disparate application of Respondent's no worktime-solicitation rule has not been established by that substantial credible evidence which the law requires Cf Mason & Hanger-Silas Mason Co., Inc v N L R B, 405 F.2d I (C.A 5) EMERSON ELECTRIC COMPANY b. November 17, 1967: Adler v. Goodman It is alleged" that around November 17, 1967, Respondent's Supervisor Adler created the impression of surveillance over its employees' union activities by saying to an employee that he (Adler) had been told whom to watch and that any time he saw an employee talking to other employees "for any length of time" it was to be assumed that the employee was talking about the union. Employee Polly Goodman testified that she was in the winding room office on November 17, 1967 since (as she testified) "I put in for a transfer to another job and asked if I could not take that job, being as what happened the night before. . . . I told him [Adler] that after what had happened, the night before, I didn't feel like, you know, going and working on a different job [sic], and he said well, he would have to check with the general foreman, which is Lee Friedel, and see. He said he'd rather I'd stay there and work for him, even though what had happened the night before. I told him that I knew he had been watching me in the past couple of days, back in my working area, and he said, `We are told who to watch.' I told him, I said, `Well, I don't care,' that I was still going to work for the Union, and he says, `You mean after we told you last night that you were out on a limb you are still going to work for them?' and I told him yes. He told me that I was supposed to stay at my working area, and I told him I didn't think it was fair. He says, `Well, Polly, any time we see you talking to another employee we are to assume that you are talking about the Union."' Adler's version of this incident is that on November 17, following the session with Plant Manager Johnson on the previous evening (described above), Polly Goodman entered his office crying and asking for a transfer to another unit. Adler told her she could do so, although he invited her to stay. Asked then (at the trial) by Respondent's counsel whether "anything [was] said about the union ... or the meeting of the night before," Alder's response was, "To the best of my knowledge there wasn't much talk about that." Asked thereupon, also by Respondent's counsel on direct examination, "what talk, if any, happened? What was said," Adler's response was, "I don't remember." Thereafter, however, in response to a number of leading-type questions, Adler denied making remarks of the nature attributed to him by Goodman. Asked, still on direct examination, "Did you bring up the subject of the union," his answer was, "Not to my knowledge"; asked whether Goodman brought it up, he answered, "I don't even remember talking about the union in that particular meeting." All things considered , comparing testimonial demeanor and giving it the weight I believe it deserves within the module of the case as a whole - including Goodman's admitted presence in Adler's office at an apparently distressing scene following what to Goodman must have been the unnerving events of the night before, involving a formal confrontation with the plant manager on this very subject, and her admitted object in going to Adler's office the next day to obtain a transfer - I have no difficulty in crediting Goodman's version of what occurred, particularly in view of Adler's purportedly hazy memory. Crediting Goodman's version, however, still leaves me less than satisfied that in the context of what had gone before - that is, Goodman's apparent infractions of Respondent's proscriptions against solicitation during "Complaint No 1, par 5(e)(i) 87 working time - Adler's action constituted an unlawful interference with Goodman's or employees' organizational or other protected rights. Under the existing circumstances, it would have been unnatural for Respondent to do other than keep Goodman under observation for possible further infractions - management's prerogatives in the prevailing situation. (Goodman herself admitted on cross-examination that she "talked about the union during working hours.") Employer awareness of union activity does not equate with surveillance, nor does a statement of awareness equate with creating the impression of surveillance. Stewart & Stevenson Services, Inc., 164 NLRB No. 100, fn. 2; Davis Cabinet Company, 150 NLRB 182, 188-189. It is accordingly found that the allegation in question has not been sustained. 5. January 1968 a. January 1968: Robertson v. Tooley It is alleged" that in January 1968, Respondent's Foreman Robertson created the impression of surveillance of its employees' union activities by telling an employee that his and other employees' visits to a Union organizer were being watched; and that Robertson promised benefits to the employee if he ceased supporting and assisting the Union. Regarding the foregoing, Respondent's former "B" (night) shift employee James Tooley (Tulley) testified that on various occasions from November 1967 to January, 1968, Respondent's Foreman Robertson cautioned him about visiting Union Organizer Heiby at her headquarters at a local motel - in Tooley's word style, Robertson told him at the plant, "You ought to be real careful, if you don't you are going to get messed up going down there [i.e., Town Motel]," and that Robertson "said they had been watching the place. . . . They have been watching and they know everybody that's going down there ... . He never said who they were. He just said, `They've been watching it.' He could have meant anyone, as far as that goes, but that's the impression he left. . . . I couldn't say just exactly how many, but I'd say four or five times.... I can remember that many times." On cross-examination, Tooley was asked, "When he [Robertson] said they were watching the place did he mean the Emerson plant?" His response was, "That's what I said a while ago, I don't know but that was the impression he left." Tooley then added that on one occasion at Robertson's house, apparently in preparation for a hunt, characterized by Tooley as "the last time," Robertson "told me if I would keep the Union quiet, be quiet, he could help me out a whole lot on making me a subforeman. That was what the whole deal was all about to start with." An amendment to the complaint was allowed following Tooley's described testimony so as to include the substance of Tooley's testimony as part of the complaint, comprising the allegations under immediate consideration. Tooley thereafter returned for cross-examination . At that time he was asked to repeat what Robertson had allegedly told him before the hunt. His response was, "He [Robertson] told me to be careful about going down to the motel, and watch what I said, because he was going to try to help make me subforeman." Tooley conceded that he "Complaint No 1, pars 5(c)(viii)(A) and 5(c)(vih)(B), as added at the trial 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had been sent home from work by Robertson for excessive drinking, but claimed that it was Robertson who had furnished the liquor to him ; according to Tooley, "I have went home at my request" on that occasion, but he then modified this to say that Robertson "told me he'd rather I would go home . I told him I'd rather I didn't and he said, `Well, I believe you ought to go home,' so I went home." Foreman Robertson in effect totally disputed Tooley's statements, except that he admitted making a kidding remark about "a revival meeting" on one occasion when Tooley sought to get off at midnight instead of working overtime with other employees , although Robertson was "pretty sure he [Tooley] was talking about a union meeting," since it was common knowledge throughout the plant and town that union gatherings were being held; however, Robertson denied mentioning the Town Motel to Tooley . And, although Robertson admitted going hunting and scouting with Tooley, according to Robertson the last time was in November, 1967, and Robertson absolutely denied saying anything to Tooley about a promotion if he stayed away from the union . Robertson also pointed out that not only was there no subforeman in his department, but that he could not have recommended Tooley for promotion anywhere in view of the fact that he had "written Jack [Tooley] up two times for drinking on the job." Robertson denied furnishing liquor to Tooley or any other employee on the job. It is apparent that this aspect of the case likewise presents mere issues of credibility. In the somewhat unsatisfactory state of the record in this immediate regard, with an absence of corroboration or contradiction on the direct issues by any witness other than Tooley and Robertson - although each indicated others were present under either version of the alleged incidents - I have weighed as carefully as I can the overall testimonial and communicational level of the witnesses as observed, with little if anything else of aid . Upon that basis and the record as a whole, I believe that substantial credible evidence fairly preponderates in favor of a finding, and accordingly find, that Robertson did indeed by his words to Tooley ih January 1968, caution the latter against going to visit the Town Motel, known to Robertson as the locus of Union organizational activity and said by him to be under watch, and convey the impression that employees' union activities were under Respondent's surveillance, thereby interfering with, restraining, and coercing employees in the exercise of their rights under the Act, substantially as alleged." I further find, however, that Robertson's alleged promise of benefits to Tooley for withholding further support from the Union has not been established by substantial credible evidence to have been made. In this regard, I do not credit the testimony of Tooley and am satisfied by Robertson 's denials and the related reasons assigned by him to explain why he could not and would not have made such a promise, that it was not in fact made." "It will have been noted that Robertson's actions in this regard are akin to those which he previously had committed with respect to his stepfather-in-law Webb, as described above. "This finding is made nothwithstanding the degree of doubt cast on the credibility of Robertson (whose side, it is to be remembered, does not bear the burden of proof here)- by two female rebuttal witnesses (Polly Goodman and Ida Harris) who collaterally disputed Robertson's perhaps understandable denial that he introduced , partook in or offered alcoholic drink in the plant b. January 26, 1968: Dudley v. Blackford It is alleged°0 that around January 26, 1968, Respondent's Assistant Personnel Manager Dudley threatened new employees with discharge if they engaged in union activity and that he solicited them to report to him on union activities of fellow employees. On the occasion in question, January 26, 1968, Respondent's Assistant Personnel Manager Richard Dudley conducted his customary orientation of new employees to two females - Sally Blackford and Frances Mandrell. According to Sally Blackford, testifying as General Counsel's only witness in support of the allegations under consideration, Dudley "asked Frances [Mandrell] if she knew there was a Union campaign going on. I [Sally Blackford] knew there was one going on, but he [Dudley] didn't ask me, and he told us that some of the older girls had become dissatisfied. . that they were trying to get cards signed to get an election for the Union, and said that he was sure they did have enough cards signed, but, no matter what we did, not to sign any more, that it would only make the Union stronger. He told us if anyone mentioned the Union to us on company time, to report it to the office and they would be discharged immediately. He said if they tried to discuss it with us, to tell them that we didn't want the Union in, that we were not interested in it and we didn't want to be bothered with it.... He continued talking about the girls trying to talk to us about the Union, and he said if they did talk to us, to come and report it to the office immediately, and he didn't mention Company time that time."" Notwithstanding the foregoing, on cross-examination Blackford conceded that she had omitted from her account on direct examination that Dudley had told them "that if anyone threatened you [i.e., Blackford and/or Mandrell], to try to get you to join the Union, which he [Dudley] did not think they would, you were to report it to the office immediately" (emphasis supplied). Assistant Personnel Manager Dudley's version of this incident is that during this routine orientation of these two new employees, he covered "the fact that the management of Emerson Electric is against a labor union representing its people at the plant, and the growth we've had in Russellville, with the benefits, certainly were a record of our own and we have made these decisions on our own, and that we could see no way that a labor union could assist the people in the plant. I [Dudley] also told the ladies [Blackford and Mandrell ] that, after they started to work, that if anyone wanted to discuss Unionism or non-Unionism with them, that we would prefer them to handle this on their own time, that it was a company policy that this be discussed on their own time; that they were being hired to perform a job, to learn how, and that this was a company policy to handle anything like this, pro or con, on their own time. I told them that if, after they started to work, they were approached on this, that "Complaint No. 2, par . 5(b)(i) and 5(b)(ii). "In view of (1) Blackford's immediately prior testimony that Dudley specified Union talk "on Company time " (Tr., p. 356), (2) inconsistencies, memory deficiencies , and other characteristics of Blackford's general testimony, including evaluation of her demeanor , and (3) contrary testimony of Dudley and Mandrell , as described below, it is difficult for me to believe that Blackford could really remember with such accuracy that Dudley "didn't mention Company time that time" as she claims. I therefore do not credit her statement to that effect , although, even if I did credit it, I would still believe that in view of Dudley's earlier specification limiting his reporting request to union talk "on Company time" the shortly following statement was still within that context. EMERSON ELECTRIC COMPANY they had every right to discuss it with their supervisor if it came to a point where it bothered them, where they couldn't do their job; if they did not discuss it with their supervisor and wanted to come to personnel, they could do that, also." Dudley flatly denied stating that the new employees should not sign a union card or to say they did not wish to do so, or that anyone soliciting them to do so would be discharged, or that if they valued their jobs with Respondent they would not sign a union card, or anything on that order. It will be recalled that according to the testimony of Blackford as well as that of Dudley, another new employee in addition to Blackford was present throughout the incident in question. That employee, Mandrell, was not called as a witness by General Counsel, but was produced by Respondent. She (Mandrell) testified that on the occasion described Dudley "told us [Mandrell and Blackford] . . . . what the company expected of us. That we would be on production line. And we'd have a certain amount of time to make production. And he told us the benefits that Emerson offered. And he said there was a union trying to come in. And that we would probably be contacted in the bath room to sign a union card. But we didn't have to sign one. And he said if we was pestered much about it to report to personnel. And he said he didn't think we would be bothered by it on company time because they knew the penalties." Mandrell flatly denied that Dudley said anything "to the effect that if anyone solicited you you were to report it to them and the person would be immediately discharged" or "not to sign a union card" ("He said we didn't have to") or that "if you valued your job or if you wanted to stay employed at Emerson that you should not sign a union card." On cross-examination Mandrell added that Dudley had also said "that we [Blackford and Mandrell] would probably be contacted [to sign a union card]. That we could sign one if we wanted to. And that, he left it up to us."" On the record presented, I have no hesitancy in preferring and accepting Dudley's version, as in part corroborated by Mandrell, of the incident under consideration. I believe and find that his instructions to these new employees on the subject of reporting regarding Union solicitation "on Company time" (Blackford's own testimony at one point) were not unlawful since this cannot be said to have been other than a direction to new employees to report violations of the Company's lawful worktime no-solicitation rule; and Dudley's accompanying remark, in that context, concerning discharge, was clearly limited to violation of that rule. I accordingly find the allegations under consideration not sustained. 6. February 1968 a. February 1, 1968: Boldin v. Austin It is alleged" that around February 1, 1968, Respondent's Foreman Boldin interrogated an employee about the employee's union activities and also created the impression of surveillance of its employee's union activities by asking an employee for said employee's copy of a Union handbill. Respondent's employee Lucille Austin testified that on or about February 1, 1968, Foreman Boldin came to "Mandrell wore an "ELE" button and handbilled against the Union during the election campaign. "Complaint No. 2, pars. 5(c)(i)(A) and 5(c)(iXB) 89 Austin's work station and asked her, "`Lucille, do you have a handbill of the Union, Union handbill,' and I [Austin] said, `Yes,' and he [Boldin] said, `I would like to have it.' I said, `Well, I can't give it to you because I have been told not to solicit on Company time.' I said, `I know my rights and everything,' and I said, `I'd rather not say anything to you, or anything.' So, he said, `Lucille, what can the Union do for you?' And I said, `Dude, I'd rather not say anything right now,' said, `I'd rather wait and talk to you later."' On cross-examination, Austin conceded that, prior to this time, she had been wearing a Union button since November, 1967 and had been making no secret of the fact that she was supporting the Union and that in fact on that very day, prior to her described conversation with Boldin, she had been handbilling in front of the plant "in plain sight of everybody who happened to come along."44 On these facts, crediting Austin's testimony, it is found that under the described circumstances Boldin's request for a copy of the handbill which Austin had been publicly distributing in plain sight of all - and which Boldin himself could readily have obtained from her outside of the plant - did not constitute coercive interrogation or creation of the impression of surveillance in interference with, restraint, or coercion of employee rights so as to violate the Act. b. February 6, 1968: Nuyt v. Pulley It is alleged" that around February 6, 1968, Respondent's Foreman Nuyt interrogated and threatened an employee with discharge in relation to union activities. The testimony of Respondent's "A" shift (day, 7 a.m.-3:30 p.m.) employee Toni Pulley indicates that, after having been opposed to the union previously, she apparently underwent a change of heart in January 1968, and commenced to participate in Union affairs and activities. According to Mrs. Pulley's testimony, on February 6, 1968, she reported to work at 5 a.m., and around 6:30 or 7 a.m. noticed that her Foreman Nuyt, with Assistant Plant Manager Koester and another individual (Taylor) were "standing at the back of the department where I worked, behind some boxes, and they were observing me, they were watching me and talking, and they stayed back there for a pretty good while ... . pretty much until I went to break, which was about 9:15." Later that day, Mrs. Pulley, who had worked for Respondent four and a half years, was called to Foreman Nuyt's office, where: "The first thing he [Nuyt] said to me [Pulley] when I got in there was that he had no complaints about my job, that the quality and the quantity were good, but he felt that my attitude and my personality had changed, and he wanted to know the reasons why. I told him that I didn't understand what he meant, and he said, `Well,' he said, `has anybody - ' said, `has the Company done anything to you,' and I said, `no, sir.' He said, `has any of the girls you work with done anything to you,' and I said, `no, they haven't.' So, he said that it had been noticed that there were several people coming by my machine and talking with me during working hours, and he wanted to know what they were talking about. I told him that namely they were talking about my husband and the fact that he had recently passed away, and they "Boldin denied ever asking anybody for a handbill. "Complaint No 2, pars. 5(d)(i) and 5(d)(ii) 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were expressing their sympathy, some of them, and others were interested in buying some of his shop tools. He asked me, six times, was that all I talked about, and I said, `Yes, sir, that's all I talked about.' Then he went on and asked me what was wrong , and he said that he didn't think I was happy in my job, and I told him that I was happy with it, that I hadn't no complaints about it, and he said, well, he couldn't understand why my attitude had changed about it. He said there was a time when I talked about my job and showed a lot of interest in it, and he was concerned because, he said, that I had a lack of interest in my job, and he said if there was anything that he or Emerson Electric could do for me or to help me, that they would be glad to do it. I told him that I had not lost interest in my job, that I was still as interested in it as I ever was and I still needed it as badly as I ever did. So, he asked me several more times what was wrong, and then he told me that Walt Taylor ahd Harold Koester - I asked him what brought all this on and he said, `Walt Taylor and Harold Koester have been observing you,' said, `they are watching you,' and he said, `I'll have to tell you that you are not allowed to talk to anyone during working hours,' and he named the inspectors and, in particular, a maintenance man whose name was C. R. Boley, and no girls off of any other line. As a matter of fact, I wasn't supposed to talk to anybody, and if anybody stopped at my machine, that I was to tell them that Glenn [Nuyt] said that I was not allowed to talk to anybody, and he said if I did not do this, if I had to be reprimanded again, the consequences could be serious because, that he would have to take drastic action, and he said he liked me, he liked my work and he'd hate to see me lose my job. Then he told me to go back to my machine." (Emphasis supplied). Foreman Nuyt's account of this episode was that on the occasion in question: I called Toni [Pulley] up to the office to talk to her, and what I said to her, I was wanting to know if she had a problem or what was wrong. She didn't seem as friendly as she used to be. It seemed like something was on her mind. She used to come in and say good morning to me, and all, and it got to the point where she couldn't say good morning or nothing, and I called her up to find out what the problem was, if there was anything we could do, if we had hurt her feelings... . She said, no, there wasn't nothing wrong, that she was happy and we never hurt her feelings. I asked her if she was sure and she said, "Yes, I'm sure." . . . After I talked to her a little more about it, was there anything wrong or anything we could do, or what did we do or had we done anything to hurt her feelings, then I brought up the subject that I had noticed that from time to time there was men from - employees from other sections coming through and talking to her, and I asked her if she would ask these people to move on so it woundn't raise an embarrassing situation, so it wouldn't embarrass her and cause a bad taste in everybody's mouth, because we didn't want people moving in and out of the section, talking to the employees. She said, well, she wasn't aware of it, and I said that it was quite obvious these employees were coming and talking to her, and I asked her if she would just ask them to move on, and then it wouldn't embarrass anybody, and she said she would. Nuyt added that although he did not ask Pulley what these conversations were about, she volunteered that it was "personal business." He denied telling Pulley that she could not talk to anybody or threatening her with discharge for talking while at work. Denying that he had called Pulley in to warn her not to talk, or that he had so warned her, Nuyt insisted that he "called her in because it seemed like there was something on her mind." Nuyt denied that Pulley was prohibited from talking with the other women in her work group, apparently in the prevailing fashion in the plant. Nuyt testified that he was unaware of any union activity on Pulley's part on the job ("She went around, about doing her job"), that he never had any discussion with her on the subject of union, and that he first became aware she was for the Union when she started to wear a Union button. Pulley testified, on direct examination, that she first began wearing a Union button "about sometime in February, maybe the early part of March [1968]. I'm not exactly sure." On the record thus presented, particularly in the absence of evidence as to the nature, circumstances, and subject matter (other than "personal" and pertaining to her late husband) of the alleged visitations and conversations with her apparently while she was at work - evidence which Pulley and others could readily have supplied - there would appear to be no basis other than surmise and conjecture, for concluding that the purpose of Nuyt's talk with Pulley was other than as described by Nuyt. It has repeatedly been pointed out that such surmise and conjecture are an impermissible basis for findings and conclusions governing this administrative proceeding. It is accordingly found that the allegations under consideration have not been established by substantial credible evidence as required. c. Early February 1968: surveillance by Boldin It is alleged" that in early February, 1968, Respondent through its Foreman Boldin engaged in surveillance over its employees' protected concerted activities. Credited proof' establishes that in connection with the attempt to unionize Respondent's Russellville plant, Union Organizer Betty Heiby in early September, 1967 established and thereafter maintained her Russellville headquarters in Room I of the Town Motel, one of approximately six motels or hotels in that place. Room l is an end room of the L-shaped motel near a sidewalk on Fourth Street, with a window but not the door of the room facing the street. The room had a small light, outside the door, invariably lit at night as well as the motel neon sign; additionally, there was a street light. Almost opposite the motel, but at a slight angle to the right of Room I and at a distance of about 110 feet was a Phillips 66 automobile service station, which figures in events to be described." Around the period of time here involved, that filling station closed around 9 p.m., with the lights turned off except for an inside light. Various, perhaps numerous, employees of Respondent visited Mrs. Heiby in Room 1 of the Town Motel, both during the day and also, in the case of "B" or nightshift employees whose 'Complaint No 2, par 5(c)(iv) "Testimony of General Counsel witnesses Heiby, Austin, and Goodman, and of Respondent's witness Boldin. "According to the recollection of General Counsel witness Heiby (the union organizer), the station was started in December , 1967, when it would remain open until around 1 l p in , changing to 9 p in around January 1968. According to Boldin, although the station opened at 6 a.m , the closing time depended upon traffic and was neither set nor at any time changed. EMERSON ELECTRIC COMPANY 91 hours ended at midnight or even later in case of overtime, during the night. It is undisputed that Dudley Boldin, one of Respondent' s "B" (night) shift supervisors, owned or had a substantial ownership interest in the Phillips 66 service station opposite the motel, and that he regularly went there after his work at Respondent's plant ended - i.e., sometime after midnight. There is no doubt that Boldin had the right to be there. The accusation is that from that vantage point Boldin spied on the group in and around Room l of the motel. Boldin, on the other hand, claims that he went to his service station in order to check its receipts and sales tallies as he had to do, and had the undoubted right to do, as an owner of the business. This, then, is the focus of the issue: - since there is no suggestion that Boldin did not personally have bona fide substantial ownership interest in the service station and no suggestion that he acquired that interest for the purpose of spying upon his employer's employees' union activities, and since therefore he had every right to be there, did he spy upon those employees' union activities while he was there during the hours after midnight when his own work tour at the factory ended? On this specific point, General Counsel witness Lucille Austin (as previously indicated in various connections, an employee of Respondent) testified: "Well, I would see him [Boldin] over there [in his Phillips 66 service station], in the inside. He would be looking around, standing sometimes . Several times I've seen him looking toward the motel . Sometimes it would be 1:00 and sometimes 1:30. Sometimes he stayed longer and sometimes he didn't stay as long. . . . About an hour sometimes and sometimes less." According to employee Polly Goodman (also identified previously in various connections), on one occasion late in February at 3:30 a.m. from the Town Motel she observed Boldin "came out of the service station, to get in his truck." The following day Goodman went to the winding room office and told her Foreman Boldin there "that I [Goodman] saw him [Boldin] last night, and he said, `Well, where did you see me,' and I said, `Over at the service station.' I said, `What were you doing there at that time of night,' and he said, `Oh,' said, `I was going over my records.' "" According to Goodman, she thought she saw Boldin at his station several times again that week. Asked - on direct examination - what she "observe[d] him doing," Goodman's response was, "Well, he would - about two or three times I saw him pull in over there, and he would go inside and then maybe it would be an hour or so before he came out. I mean , I couldn't see what he was doing in the service station. You can't see the inside there." (Emphasis supplied.) According to Goodman, while she and other employees were in motel Room I with Heiby, the drapes of that motel room "were closed." Goodman estimated, concededly without actual knowledge, that the street lights would be sufficient to enable a person at the service station to observe people entering and leaving Room I of the motel; she conceded that after midnight the motel itself was not well-lit, but dark. According to Goodman's testimony, her attention to Boldin was "The balance of this conversation is considered infra, under date of February 16, since it also appears to be alleged in the complaint as an independent violation that when Boldin thereupon asked Mrs. Goodman where she was when she saw him, Boldin thereby committed unlawful interrogation. (The expression "appears to be alleged" is employed because, in the absence of specific dates and names of employees in the complaint, in certain instances , such as this, one cannot be certain which if any allegation or allegations of the complaint certain testimony is intended to relate to ) attracted when she heard the sound of his truck pulling into his service station, whereupon she opened the motel room drapes slightly and she "just watched . . . for a while." Respondent's Assistant Foreman Boldin testified that, while working for Respondent in that capacity on the night shift (approximately 2:30 p.m. to midnight, plus overtime; but even without overtime he as a supervisor was unable to leave before 12:45 a.m.), he acquired a partnership interest in the service station in question on December 1, 1967 and held it until August 1, 1968. He worked there regularly on Saturdays and Sundays, as well as sometimes during the day and sometimes during the night. He checked the station accounts three times a week, in a small office at the back of the station, partitioned off by concrete block walls and a door from the rest of the station. The office light by which he worked would probably not be visible outside of the office or on the outside road, according to Boldin. He also sometimes checked cash register tapes and figures on the cash register in the front portion of the station. Boldin readily conceded that he had heard - as seems, indeed, to have been common knowledge - that the Union's "headquarters" were in Room 1 of the Town Motel and that it was a matter of general knowledge around the plant that employees (although not which ones) were visiting there. He also testified that "I believe one night they was having something down there. I didn't pay any attention to it.... Just saw a lot of activity over there as I pulled into the service station. It could have been anything as far as I know . . I mean, you know. People. Traffic." He denied that he at any time watched to see who was going in or coming out of Room I of the motel - he neither spied nor consciously avoided looking in the direction of the motel. Upon the record presented, I find that General Counsel has failed to meet his burden of establishing by a fair preponderance of substantial credible evidence that, as alleged, Respondent through its supervisor Boldin engaged in surveillance over its employees' protected concerted activities at the Town Motel in Russellville. As has been indicated, there is no suggestion that Boldin's proprietary interest in the service station across the road from the motel was other than legitimate, or that it was acquired for surveillance purposes, or that Respondent was in any way associated therewith. Within that frame of reference, Boldin had the right to be there. It has not been established by a fair preponderance of substantial credible evidence that Boldin utilized his service station as an observation post or for the purpose of spying upon employees' union activities, or for any purpose other than the exercise of his legitimate business interests as he described. Furthermore, it was a matter of extremely common knowledge in this small locality that the Union "headquarters" were in Mrs. Heiby's room at the Town Motel. Boldin's ownership of the service station across the road was also unconcealed and well known. It might be said that if the Union or employees felt that Boldin's coming to and from his own business was embarrassing or suspicious , or regarded as a threat to the success of the unionizing effort, it would have been a simple matter to relocate Mrs. Heiby's room elsewhere at that or one of the other motels or hotels. Furthermore, there is no persuasive proof, as distinguished from speculative conjecture, that Boldin actually spied, although it is certainly understandable that the employees supposed that he did. It has not even been credibly established that there was any human visual capability of making personal 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD identifications at night at the distance and angles involved under the described illumination conditions. The impression is conveyed by at least some of the employee testimony that those inside of Room 1 of the motel who were cautiously peering out from behind the closely draped windows there, were perhaps watching Boldin rather than that he was "watching" them. d. February 10, 1968: Boldin v. Goodman It is alleged" that around February 10, 1968, Respondent through its Foreman Boldin interrogated an employee about the employee's union activities. Employee Polly Goodman testified that on February 10, 1968, as she was passing by the winding room office, Foreman Boldin called her in and proceeded to ask her, "I want you to give me 14 reasons why anyone would be for a Union." According to Goodman , she replied that "I [Goodman] didn't know whether I could give him [Boldin] 14 or not, right off, and he says, 'Well , convince me that we need a Union,' and I told him that I'd be wasting my time because he couldn't vote, anyway. He wanted to know how we knew when we got enough cards signed.... I said, 'If they signed up the year before,' I said , 'I think they would still stay with what they did a year before.' Say, if someone voted a year before , I told him, had signed the card a year before then, I said, 'If they signed another one this year,' I said, 'I think they would still stay.'. . . and he asked me what we told the people when we talked to them , and he wanted to know why I was sticking my neck out for the union.... I said, 'Someone has to.' . He asked me if they paid us anything for getting cards signed.... I told him no, that we hoped to get a good union in and that would be all we wanted." Goodman swore that she discussed this conversation only with Union organizer Heiby (and counsel for General Counsel). Foreman Boldin testified he was unable to recall any conversation of the nature described by Goodman, but did not deny that it occurred.61 Crediting Goodman's testimony , I find that on February 10, 1968 , Respondent through its supervisor Dudley Boldin interrogated its employee Polly Goodman regarding her union activities, in interference with, restraint, and coercion of her rights under the Act. e. February 14 and 16, 1968: Black v. Austin dr Goodman It is alleged" that on or about February 14, 1968, Respondent through its Personnel Manager Black created the impression of surveillance over its employees' union activities and unlawfully restricted union solicitation on Company property; and that on or about February 16, 1968, Black threatened discharge for Union talk "on company time, thereby unlawfully limiting solicitation ... on Respondent's property." Respondent's employees Lucille Austin and Polly Goodman testified that around the foregoing time they together went in to see Personnel Manager Black in his office and asked him for a copy of a document concerning the Union which they had seen posted on the Company's "Complaint No. 2, par. 5(c)(ii). "It is noted that General Counsel witness Lucille Austin testified to a substantially similar episode in Boldin's office a few days later, discussed infra, "f." under date of February 16, 1968. "Complaint No. 2, pars. 5(a)(i) and 5(a)(ii). locked "Fact-Rumor" bulletin board. According to Austin and Goodman, Black indicated they could not, since "If I had wanted this distributed, I wouldn't have put it under lock and key"; and when they asked Black if they could "put up our rumors and facts ," he said no but that he would find out and let them know later or the next day. According to Goodman, she then said, "'Mr. Black, since I have been called into the office and they've threatened to fire me for working for the Union, suppose I was working on my job and I was talking to one of the other girls about the Union, was that soliciting? You can be talking about the Union and still not be soliciting, can't you?' I [Goodman] said, 'Suppose a girl has already been signed up, she's already for the Union , you can't be soliciting them, can you?' And he [Black] said, 'There's some people in this plant, as far as I'm concerned , they can open their mouth and mention the word Union and I would consider it soliciting , even if the word Union is mentioned.' " According to Austin, who was there at the same time, what Goodman said was, "'Mr. Black, what do you mean about, if we are on our job, doing our job and the Union is brought up and we say something about it, and we are doing our work and everything, is that soliciting?' He [Black] said, 'As far as I am concerned, that is soliciting.' " It was only on cross-examination that Austin testified that Black said, in response to Goodman's question, "Some people in this plant , if they open their mouth and say 'Union ' as far as I am concerned it is soliciting." According to Personnel Manager Black, he did indeed have such a conversation with Austin and Goodman when they called at his office before reporting for work. After telling them in response to their request for use of the Company's locked bulletin board "to explain the union's position" on certain matters, that he would check and let them know, so far as Black could recall it "Miss Austin said that she felt like she was intimidated and coerced at that time [i.e., on November 16, 1967, when she, Goodman, and Hargrove had been called in by Plant Manager Johnson upon the basis of complaints received from other employees allegedly resentful over being "harassed" or "bothered" by these three for soliciting them during working time]. And I reminded her [Austin] that there had been no coercion or threats of any kind. That this had merely been a warning . One of these girls [i.e., Austin or Goodman] started asking about the ELE ["Emerson Loyal Employees"] club. I believe it was Mrs. Goodman that asked me if I knew anything about them. My comment was that I did not and that I did know that they were passing out leaflets and putting ads in the newspaper and on the radio . I was asked if I knew who was behind the ELE club and I said I only knew those people who had put their signature to the ads in the newspaper for sure to be connected with it. And then one of the girls accused me of knowing that the company financed the ELE club. And this I denied with a statement that this definitely was not true." On February 16, according to Black, he again met with Austin and Goodman, declining the use of the bulletin board in question" "Now, at that point Polly [Goodman] brought up the fact that during the meeting on the 14th that I had made a statement that anyone who, that there were certain people out in the plant that if they mentioned the word union that I would automatically assume that they were soliciting on company time. I corrected her with a "Inasmuch as it is not claimed that this was unlawful, it is unnecessary to devote consideration thereto. EMERSON ELECTRIC COMPANY statement that I felt like she had misunderstood me. That I had made the comment that there were certain people, if they used the word union during working time, then I would consider this soliciting. And this conversation then got into a question of just what is soliciting and what is not. I gave these girls my definition of soliciting. . I told these girls that soliciting in my opinion was where you were attempting to persuade someone to come over to your way of belief or to purchase an item from you that perhaps you weren't looking at or shopping for. The comments then went to the ELE club. That these people were soliciting on company time. And my answer was that we had no knowledge that these people were soliciting on company time. That if we received complaints from employees that we would discipline ELE members just as we had disciplined these two girls back in November." Black denied stating that as far as he was concerned when some people opened their mouths it would be solicitation. There is thus here again presented, as in so many other aspects of this case, at least in part an issue of credibility. Although upon comparative demeanor observations I resolve this in favor of Personnel Manager Black, even were it otherwise I would still not find the indicated conversation, considering the total background and setting in which it occurred, to establish the allegations under consideration. It is clear from the November 16, 1967, incident and preceding events forming the backdrop of this January 14-16, 1968 conversation which was precipitated by Austin and Goodman seeking out Black, that the entire context of these conversations was Respondent's insistence - as specified in its no-solicitation rule - that it would not tolerate solicitation in the plant during employees' working time. If, in response to Goodman's provocative hypothetical question whether Black would consider Union talk during working time between two employees who were already members of the Union - which neither Austin corroborated nor Black conceded was asked - Black indicated he would consider Union talk on the part of certain employees as solicitation, it cannot be said as a matter of law that such a response to such a question against such a background was unlawful, in my opinion. It is clear that the message that Personnel Manager Black on this occasion, as well as Plant Manager Johnson on previous occasions, was trying to get across was that worktime was for work. Granted, as it must be, the propriety of such a requirement, if, on top of knowledge backed by documented proof already in his possession as Personnel Manager, Black heard that a union activist who had already been warned against Union solicitation during worktime was again engaging in union talk during worktime, it would be too much to require Black to know whether the other employee was or was not a Union member before ordering it to be stopped. Furthermore, it is difficult to see how Black could find this out without risking violating the Act through interrogation. Moreover, it is highly doubtful whether Respondent would be required to tolerate talk on any subject, including the Union, during paid worktime, even between known union members, if interfering with work. I find that upon the record as a whole the complaint allegations under consideration have not been established by substantial credible evidence. f. February 16, 1968: Boldin v. Austin; Boldin v. Goodman Austin It is alleged60 that on or about February 16, 1968, 93 Respondent through its Foreman Boldin unlawfully interrogated an employee about his union activities. Respondent's employee Lucille Austin testified that around February 13, 1968, Respondent's Foreman Boldin called her to the winding room office. Austin's account of what ensued follows (emphasis supplied): When I [Austin] went in he [Boldin] said, "Lucille, I am going to give you your six-months interview," and said, "If you've got any complaints or anything, just say so," and he told me about my good record, said my record was good and everything. I was sitting there and I said, "Well, Dude, there is no need to say anything because," I said, "We never have got anything done that we've asked for several times." He said, "Well, do you think the Union can solve your problems," and I said, "Yes, I do." He said, "Well, Lucille, why do you want to stick your neck out for the Union people," and I said, "Well, someone has to and I just as well to." So, he said, "Well, what about if someone signs up with you," says, "How do you know that they will vote for it?" And I said, "Well, I just take their word for it." Foreman Boldin's account of this interview, which he conceded occurred, is (emphasis supplied): I [Boldin] called her [Austin] to the office on her merit review I think. And told her, reviewed her work and told her she was doing a good job and attendance was good and her general review and asked her if she had any problems or complaints or anything like that. And I'd asked her why she would be for the union. She said that she would like to see an individual efficiency for everybody. And that she thought maybe right now the way it stood that people could be fired without cause or anything like that. And that she thought Emerson needed a union . . . . I asked her why she'd just be for a union. Boldin's further testimony indicates that his questioning of Austin concerning the Union was contrary to instructions he had received from Respondent. Although upon Austin's version of the interview under consideration I would not find a coercive or otherwise unlawful interrogation since among other things she (under her version, it would seem) brought up the subject and what ensued had no coercive aura under such circumstances, nevertheless, upon the basis of Boldin's own version of the incident, establishing that it was he who launched into an interrogation about Austin's union views in the formal atmosphere of the office "locus of ... authority"" to which he had called her, I find that Boldin unlawfully interrogated Austin on that subject. That in so doing Boldin violated Company instructions is immaterial, since to the employee Foreman Boldin speaking in the office in his official capacity represented Respondent. It is accordingly found that the allegation under consideration has been sustained. Goodman The pleadings as amended and several times reamended are so complex, the issues so manifold, and the evidence so heterogeneous, that - within the boundaries of practicality - pleadings and proof may not in every instance readily be matched with reasonable certainty. Thus it is in this particular instance, that with two "Complaint No. 2, par. 5(cxw). "General Shoe Corporation, 97 NLRB 499, 502. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD possible incidents of interrogation on or about February 10, 1968 (one testified to by Austin and one by Goodman), each involving Respondent's Foreman Boldin - who is the only individual identified by name in that allegation for that date (Complaint No. 2, par. 5(c)(ii)) - it is not possible to be certain which incident was pleaded. For this reason, I deal with both; what seems to be the more likely intended incident, that involving Austin, has been disposed of above. The other incident, involving Goodman, will now be dealt with. The Goodman incident has already been partially described in another connection, supra, "c. Early February, 1968.• surveillance by Boldin." There, it will be recalled, after Goodman from behind the closed draperies of Town Motel Room 1 had observed Boldin come out of his service station and get into his truck, the following day Goodman went to the office of Boldin (who was her supervisor) and asked him what he was doing there. According to Goodman, Boldin replied, "'I [Boldin] was going over my records. Where was you [Goodman] at?' I [Goodman] said, `Well, you [Boldin] know where I was at,' and he said, `What do you all do over there that time of the night,' and I said, `Well, we sit around and talk.' He said, `Well, how late do you stay over there?' And I said, `Oh, maybe till 5:00 or 6:00 o'clock in the morning sometimes."' On cross-examination, Goodman added that Boldin then remarked "that we must have an awful lot to talk about to stay up that late." Also on cross-examination , Goodman repeated that she was "the one who sought out Mr. Boldin" and that she was "the one who asked him the question." Under the described circumstances, I find the foregoing not to have constituted coercive or otherwise unlawful interrogation within the meaning of the Act. It was Goodman who sought out Boldin in the latter's office and who provoked Boldin's indicated, reasonable reaction to Goodman's question. In the indicated context, Boldin's words may not realistically be viewed, in my opinion, as having interfered with, restrained or coerced Goodman (or any other employee) in the exercise of any right secured by the Act. It is accordingly found that to the extent the complaint allegation under immediate consideration may encompass the described Goodman incident, it has not been sustained. 7. March 1968 March 11, 1968: Adler v. Goodman It is alleged56 that on or about March 11, 1968, Respondent through its supervisor Adler created the impression that its employees' union activities were under surveillance "by implying to an employee that he knew the said employee had given evidence to an agent of the Board during its investigation of an unfair labor practice charge filed against Respondent." Respondent's employee Polly Goodman testified that on March 11, 1968, the plant bulletin board contained an announcement or information regarding the issuance of an unfair labor practice complaint by the Board against Respondent - in Mrs. Goodman's words, "how many complaints and how many supervisors were involved at that time."" According to Mrs. Goodman, Adler asked "Complaint No. 2, par 5(e). "It is noted that Adler (among others) is mentioned in Complaint No I in regard to two alleged incidents considered supra - one in mid-November 1967 (Complaint No. 1, par 5(e)(u), which was withdrawn her if she had read this notice and Goodman told him she had. Thereupon, according to Goodman: "He [Adler] said, `Polly, I know you've betrayed my confidence in you,' and I [Goodman] said, `What do you mean?' He said, `Well, you and Regina [Casebier] were the only ones that I talked to about the Union.' " Adler gave a somewhat different account of this conversation. Under Adler's version, in the course of a conversation with Goodman, after she asked him whether he had "heard anything yet" and he asked her if she had seen the bulletin board and she said she knew about it, Goodman asked him "how did I [Adler] think a union would go should there be an election. I told her [Goodman] I didn't have any idea. And she said, `Well, reckon they'll have the election before the layoff?' I told her, no, I didn't know. But as far [as] that was concerned it wouldn't have any effect on the new people voting . . . . I said, ' I guess I'd better hush. I shouldn't be talking to you.' And she said, `Why?' And I said, `Because I feel like that you have betrayed my confidence in you.' And with this I left." Although I prefer and accept Adler's account, in my opiniotf neither the statement which Adler says he made nor the statement attributed to him by Goodman establishes that, as alleged, Adler thereby created the impression of surveillance through implying to Goodman that he knew she had given evidence to the Board. To begin with, the basic (and only, aside from the one withdrawn by General Counsel) allegation of Complaint No. I involving Adler has not been found. However, Adler could have supposed - even known to a certainty - that Goodman was the source of certain allegations of the complaint, without this necessarily in any way implying that surveillance lay at the root of his supposition or knowledge. A statement by A to B, that A believes or knows that B has reported A to the authorities since the authorities have instituted proceedings against A, and that B must have been the source of the information upon which the complaint is based since A disclosed the information to B only, is as a matter of law, in my opinion , not equivalent to an accusation by A to B that B's movements or actions in reporting the matter to the authorities havd been under the surveillance of A. I accordingly find the allegation under consideration to be devoid of merit. 8. April 196858 a. April 16, 1968: Personnel Manager Black's threat to all employees of economic losses in event of unionization It is alleged59 that on or about April 16, 1968, Respondent in a speech to assembled employees, through its Personnel Manager threatened them with "loss of substantial benefits if they selected the Union as their bargaining representative." It is undisputed that on and around April 16, 1968, Respondent's Personnel Manager Black addressed plant at the trial here) and the other on November 17, 1967 (Complaint No. 1, par 5(e)(4), involving the alleged creation of the impression of surveillance), which has not been found "Allegations (Complaint No 2, pars 5(f)(i), 5(f)(ii), and 5(f)(iii)) that around April 17, 1968, Respondent' s Foreman Gooch interrogated an employee concerning his union activities , solicited the employee to cease support for and activity on behalf of the Union, and threatened the employee's discharge for union activities, were withdrawn at the trial by General Counsel "Complaint No 2, par 5(a)(ui). EMERSON ELECTRIC COMPANY employees in about 30 groups of 20 to 40 employees each in the plant conference room near the office, in the presence of other management representatives, on the subject of the upcoming Board election to be held on April 19; and that in the course of those addresses Black exhibited on a screen certain news clippings and other material. A stipulation of the parties establishes that "all of the speech in question, and all the charts [etc.] that were projected" are contained in Joint Exhibit 1, consisting of a script which Black read;"° and that the dates on which Black did so were various dates from about April 9 through April 16."i A review of Black's remarks to these employee assemblages shows that he told them his purpose was "to discuss the coming election and . the company's position on the union." At the outset he emphasized that "I would like to make it clear that the coming election is one of the most important events many of us have faced since starting to work at Emerson .... The results of this election will have a tremendous effect upon all of us...." Black described the Board's election system, pointing out that under its secret-ballot voting procedure the manner in which individual votes are cast cannot be ascertained - "So, for goodness sake, don't let anyone tell you that signing a card means you have to vote for a union. You vote the way you want to!" Making it "clear that we are opposed to a union in this plant," Black reminded employees that the Union had lost two previous elections. He differentiated between union promises and performances, indicating that such promises are not bankable. Reviewing for employees the salary improvements they had received in past years without a union and the likelihood that these would continue, he stated that unionization would result only in introduction of the Union into a bargaining process, with Union personnel gaining the benefit of substantial dues paid by employees. He indicated that withdrawal from a union could be time-consuming . He showed or purported to show that in certain instances discussions affecting union members were or could be made by others than the employees involved. He referred to strikes elsewhere and showed their apparent significance in cost to employees. The thrust of Black's speech was an appeal to employees to cast their ballot against the Union as unnecessary, if not potentially detrimental, to their continued well-being at the plant. General Counsel produced evidence of additional remarks made by Black "in discussing the charts and projections." This evidence consisted of testimony of employee Polly Goodman, essentially corroborated by employee Lucille Austin, that Black stated at one of these sessions, as he was referring to a chart showing the benefits enjoyed by employees, that with a union bargaining "you start from the bottom and then work your way up." Black testified that he did not deviate from the speech, but that after the speech in answer to questioning from the floor he stated, to the best of his recollection, "that if a union came in that bargaining did not start with present benefits, but that bargaining would "As indicated below , a proviso to the stipulation preserved General Counsel's right to submit evidence of supplementary remarks by Black "The date "April 5" in the stipulation (Tr, p. 194) would seem to be an inadvertence or a reportorial or typographical error, since it is referred to as "Monday" and occurs in a series of dates between Friday , April 12, and Tuesday, April 16 The parties' stipulation states that the 2d, 3d, and 4th paragraphs on page 4 of Joint Exhibit I may have been omitted in certain groups because of "considerations of time." have to start from scratch and go up from there." Although Black's statement as recollected by him may be somewhat stronger than the one attributed to him by Goodman and Austin, in the context here presented - and I credit the testimony of Black, whom I believe to be a truthful person, that it was in answer to employee questioning - in my opinion under neither version does the statement deserve to be viewed as threatening, coercive, or otherwise unlawful under the Act. Employer (as union) statements that bargaining will be from "the bottom... up" or "from scratch" or comprehensive on all subjects in relation to all other subjects to be negotiated, may or may not be coercive depending upon the total circumstantial congeries presented. Wagner Industrial Products Co., 170 NLRB No. 157, with which cf., e.g., Federal Envelope Company, 147 NLRB 1030, 1037-1041. Such statements may be unlawful where, for example, spontaneously beamed at employees in company with other threats of withdrawal of economic betterments, as in Federal Envelope Company, 147 NLRB 1030, and cases cited at 1040, fn. 25. Here, however, the remark was made only in answer to employee questioning, and in the absence of accompanying threats or otherwise coercive or improper remarks. Under such circumstances, it would not appear that Black's answer standing alone may fairly be regarded as coercive or threatening, or as other than a technically accurate reply to the question asked."Z Beyond the First Amendment's free speech guaranty, Section 8(c) of the Act expressly secures the right of employers and unions alike to: "express[ing] ... any views, argument, or opinion... if such expression contains no threat of reprisal or force or promise of benefit." The Supreme Court has reminded us (Thomas v. Collins, 323 U.S. 516, 537-538): . . . . decision here has recognized that employers' attempts to persuade to action with respect to joining or not joining unions are within the First Amendment's guaranty. Labor Board v. Virginia Electric & Power Co., 314 U.S. 469. Decisions of other courts have done likewise. When to this persuasion other things are added which bring about coercion, or give it that character, the limit of the right has been passed. Cf. Labor Board v. Virginia Electric & Power Co., supra. But short of that limit the employer's freedom cannot be impaired. Under these basic principles, reemphasized in a long array of cases, Respondent did not, in my view, in the speeches by its Personnel Manager Black stray into the forbidden area of threats or coercion. It is accordingly found that the complaint allegation to the contrary has not been established by substantial credible evidence. b. April 30, 1968: discharge of Sally Blackford It is alleged" that on April 30, 1968, Respondent "Further, General Counsel witness Tooley alone testified that in response to a question by him - not clear whether or not asked publicly or privately - Black "said if I [Tooley] turned out too many pieces that I could be fined by the Union for it, that they would make me pay a fine." At this time, Tooley was paid on a "weekly basis plus line production " Assuming the remark was made as Tooley testified, in response to Tooley's question, I perceive nothing unlawful about it Cf Scofield v N L R B ( Wisconsin Motor Corp ), 393 F 2d 49 (C A 7); N L.R B v. Allis-Chalmers Manufacturing Co, 388 U S. 175 In response to a leading question by General Counsel as to whether he "recall[ed] any statement by Mr Black as to the possiblity of the plant moving," Tooley replied in the negative "Complaint No 2, par. 6 95 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharged its employee Sally Blackford because of her union membership, sympathy and activities, and in order to discourage union membership. Considerable testimonial and documentary evidence has been supplied on the subject of Respondent's discharge of Sally Blackford on April 30, 1968. It is Respondent's contention that this discharge was the result of its dissatisfaction with Mrs. Blackford's production and job efficiency, perhaps attenuated by what is portrayed by numerous of Respondent's witnesses as her unacceptable job attitude and her peevish, insubordinate, or shrewish behaviorisms toward plant superiors. As has been indicated above" in another connection, Blackford entered Respondent's employ around the end of January, 1968, at the same time as Frances Mandrell. Thus, her entire tenure, from start to finish, with Respondent, was slightly over 3 months. Although Mrs. Blackford was primarily a welder, her duties included work tasks other than pure welding, at any rate when her welding did not keep her busy full time or almost full time. Thus, her primary job was to weld lead wires to hermetic motors or stators moving along a conveyor belt. However, when there were not enough motors moving along the belt for her to receive for welding and insulation, she was apparently expected to move to the preceding work station in order to do or assist in the doing of the work tasks (i.e., to attach, by twisting, the lead wires on to the motors) done there in order to provide her with motors to weld. It is conceivable, as contended by her, that her doing this may have posed difficult or even insoluble problems for her in handling her welding duties; and also, as contended by her, that additional problems may have been presented by any failure at the work station following her welding station to receive welded motors for further processing (i.e., footpedal "pressback" and "blocking" or shaping of welded wires), since a pile-up of welded motors would - according to her - render it impracticable for her to continue welding more motors, particularly when there was no longer any space because of the small size of available tables to stack work in process. Whether these problems were the fault of Mrs. Blackford, in whole or in part, or the fault of others, or exaggerated by Mrs. Blackford, was litigated at considerable length. However, the simple fact of the matter is that, even arguendo totally crediting Mrs. Blackford's description of these problems, they were work problems arising out of Mrs. Blackford's perhaps justified dissatisfaction with the way the lead attachment-welding and insulation-pressback-blocker cycle or portion of the cycle, was industrially engineered and operating at the plant. It may be that that cycle was ineptly designed and hopelessly inefficient, rendering the performance of her duties extremely difficult or even perhaps impossible. It may be that she was being blamed or held accountable for the fault of others, for the inefficiency of others," or for her inability to do more than it was possible for a person of her slight physique (as described and observed at the trial) - or indeed for any person - to do. But these were not union-membership or union-activity related problems. There is no credible "I.e., Belcher, Dudley, Koester, Patzius, Friedel, Meguir, and Johnson. ""b January 26. 1968: Dudley v Blackford." For example, at the trial Mrs. Blackford ascribed part of her production difficulties to the fact that the girl who was placing the leads on the motors which Mrs Blackford was waiting to weld "was left-handed and it made it hard for her to connect these leads to the motor without bringing the covered wire over in an improper position to be welded... " showing that these problems, or any of them, were manufactured, trumped-up, or pretextual on Respondent's part, nor of any unlawfully discriminatory application of efficiency standards or work performance requirements to Mrs. Blackford because of her Union membership, sympathy or activities , nor of discriminatory application to Mrs . Blackford as distinguished from nonunion members, even assuming Mrs. Blackford's union membership and activities were known to Respondent. It is of course obvious that mere union membership and activities do not insulate an employee from discharge for other reasons. Union membership and activities is not a shield behind which a discharged employee can take refuge and claim discrimination... The burden remains upon the General Counsel to prove that the reason for the discharge was the employer's anti-union hostility . An employer is not obliged to treat a union member differently or with greater deference than any of his other employees. Poor performance, misconduct and insubordination, for example, do not have to be tolerated merely because the offenders are among the plant's most active union supporters. An employer's stated opposition to unionization is not in itself sufficient evidence to sustain a finding that an employee was discharged because of discrimination against a union . [N.L.R.B. v. Bangor Plastics, Inc., 392 F.2d 772, 777 (C.A. 6).] The evidence on both sides clearly , indeed overwhelmingly, establishes that Mrs. Blackford encountered continuing problems with her supervisors in the area of her productive and job efficiency , commencing - according to Mrs. Blackford 's own testimony - as early as mid-March, less than 2 months after she was hired, at which time credited evidence including records establishes Mrs. Blackford was refused a merit increase because her "quantity of work was poor."" From the trial transcript (p. 414): Q [By Mr. Hanna] Weren't you told frequently that you had failed to make production? A [By Mrs . Blackford] Yes. Whether or not these job-related difficulties experienced by Mrs . Blackford were justified is essentially beside the point here. It may well be that from Mrs. Blackford's point of view (as opposed to her Employer 's) they were not, since she appeared during her term of employment repeatedly to be critical of Respondent 's industrial production practices and systems , as related to her particular job duties and Respondent's job requirements upon her. It may well be that some or even all of her criticisms were and are justified . On the other hand, from Respondent's point of view, however mistaken, if it was, Mrs. Blackford was an inefficient or less efficient employee than it was willing to continue to employ. Substantial credible evidence, consisting not only of "It is to be noted that this time - i e , mid-March 1968, Mrs. Blackford, also according to her own testimony, had not yet taken part in the union campaign - she did so only "after March the 26th ." When, therefore, she told Foreman Belcher, upon being called to the office over her production in mid-March , that "I [Blackford] felt that I was being discriminated against," it is apparent that the "discrimination" to which she referred was unrelated to discrimination by reason of union activity. Mrs Blackford conceded that "this came up before I started wearing the [union] button [on March 261 . . a week before I started wearing a button"; and on cross-examination she conceded that although she accused Foreman Belcher that "I [Blackford] felt that he [Belcher] was discriminating against me," "I [Blackford ] didn't tell him - didn't mention Union activities." EMERSON ELECTRIC COMPANY 97 credited testimony of numerous witnesses `" but also of records maintained in the regular and continuing course of Respondent's normal business operations and not created for purposes of this proceeding - including production records and work efficiency computations based upon Mrs. Blackford's own production reports - amply supports Respondent's contention that Mrs. Blackford's production and efficiency were low, justifying her dismissal for that reason,69 after efforts to improve her performance and opportunities to her to do so proved unavailing, climaxed by a stormy exchange with supervisors on April 29 followed by a turbulent scene with top management in the plant office on April 30, where her behavior is described by Respondent (among other things her throwing down the gauntlet and daring an immediate discharge) as petulant and obstreperous if not insubordinate and refractory, resulting finally in her being requested or ordered off the premises. Against a solid array of substantial credible testimonial and documentary evidence supporting Respondent's contention that Mrs. Blackford was dismissed for cause, as indicated above, there is a dearth of evidence to support the theory of General Counsel - who of course carries the burden of proof here - that she was dismissed because of her union membership, sympathy, or activities, or to discourage Union membership. According to Mrs. Blackford's own testimony, she joined the Union after her production difficulties had started , and there is no indication that her Union activity was in any way unusual or more than minimal. According to Mrs. Blackford's testimony , she did not sign a union card until "the latter part of March," 1968, did not visit Union Organizer Heiby's Room 1 at the Town Motel until around April 7, and handbilled only on April 16, 17, and 30." Also according to Mrs. Blackford, when on April 26 Foreman Belcher again called her to his office and discussed her production, he preceded his remarks on that subject with the statement that "I [Belcher] don't know how involved you are with the Union and I don't want to know, but we don't want a Union. I'm not for one."" It may certainly not be said upon the basis of the record presented that Mrs. Blackford was unusually active in the Union, or that any such possible activity or anything other than that after March 26 - in company with many other employees - she wore a union button, was known to Respondent . As has been pointed out, according to her own testimony she first participated "in "I.e., Respondent's witnesses Belcher, Dudley, Koester, Patzius, Fnedel, Meguir (Meguiar), and Johnson. "Respondent's complete file of all efficiency reports prepared and maintained in the regular course of its business for all employees on the entire connect line group for the period from February 6 to April 25, 1968, appears to indicate a significantly and generally sustained lower efficiency on the whole by Mrs. Blackford as compared to most if not all others shown . These reports (exhaustively explained by Respondent's time study analyst Meguir), based on production figures as reported by Mrs. Blackford herself, were not successfully refuted or overcome, although opportunity was afforded to General Counsel for their study during the course of the trial (Meguir's cross-examination being deferred over a weekend for that purpose). As explained by Meguir, the applicable basic job analysis and standards were prepared in 1965 , 3 years before Mrs Blackford was hired, eliminating the possibility of a contrived or manipulated standard at any time during Mrs . Blackford's brief tenure "On April 30 whether before or after her discharge is undisclosed "Mrs Blackford testified that when she was hired, Assistant Personnel Manager Dudley, upon interviewing and orienting her and Frances Mandrell (who was hired and oriented at the same time as Mrs. Blackford), handed Mrs . Blackford some forms which Dudley had filled this [Union] campaign in any way" only "After March the 26th [1968]," when she commenced to wear a Union button to work. That production and workline efficiency loomed large in importance to Respondent, and that this was exceptionally well understood by employees, is confirmed by the testimony of numerous of General Counsel's witnesses" who, testifying about plant bulletin boards, emphasized that they examined the employees' lunchroom bulletin board with regularity in order to check on the production efficiency records posted there by Respondent. As has already been pointed out, Mrs. Blackford's difficulties with management on the score of production by her own admission antedated her advent into Union affairs. An employer does not violate the Act by expecting too much of employees. Provided no violation of the Act is involved, no offense against the Act is committed by an employer who discharges an employee even at will or whim . Act, Sec. 10(c); N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26; N.L.R.B. v. Waterman S.S. Corp., 309 U.S. 206, 218-219; N.L.R.B. v. Finesilver Manufacturing Company, 400 F.2d 644 (C.A. 5); Betts Baking Co. v. N.L.R.B. 380 F.2d 199, 203 (C.A. 10); N.L.R.B. v. Ogle out, to be carved by her for further processing, and that (still according to Mrs Blackford's testimony) alongside of an item "Attitude toward Union," Dudley had placed a question mark on her form She described the paper on which this item was contained and thus allegedly marked as a half-sheet "about like an index card " Dudley testified that at this orientation he utilized his usual 8 1/2" by II" two-page checksheet, containing the item Company "Union attitude," which referred to one of the subjects he always covered with new employees - "This refers to what I tell them [new employees] the Company policy is as far as discussing this on the job " Dudley produced and identified (as did Foreman Belcher) the actual two-page form used for Mrs Blackford, in appearance it was unlike what Mrs Blackford had described When shown this two-page form at the trial and asked whether she had ever seen it before, Mrs. Blackford's reply was "Not that I recall ." When asked whether it had been handed to her when she was hired, she denied it She then swore she had never seen it before Thereupon (still on direct examination ), asked to describe the difference between the pages produced by Respondent at the trial and the ones she had allegedly been handed, Mrs. Blackford's response was, "The print, the letters were larger on the other papers There was writing all the way across And the sheets were a little bit longer than this And the lettering was a lighter purple than this." I cannot credit Mrs Blackford's testimony in this regard . Particularly when weighed against the standard of the balance of her testimonial level in other respects, it impresses me as highly unlikely that she would or could remember such details as the size of the letters and a difference in hue of ink . Indeed , on direct examination (as well as twice on cross-examination ), Mrs Blackford had, with the appearance of equal positivism , sworn that the print on these papers was "in large black letters" It also strains my credulity to believe that a Company of Respondent's size and obvious administrative experiential level would design and publicize, much less hand to an employee to see, a form of the nature and filled out as described by Blackford, rather than a form of the type described by Dudley, whose testimony I credit. Furthermore - if more is necessary - it will be recalled that Mrs. Blackford had originally testified that the form in question which she allegedly received was a half-sheet "about like an index card"; however, when asked to explain the difference in the form she received from the 8 1/2" by 11" sheets produced at the trial , she testified that the sheets she received "were a little bit longer than this." It will, finally, be recalled, that I have rejected Mrs Blackford's account of other features of Dudley's orientation talk, as not squaring with Frances Mandrell's account thereof ("b. January 26, 1968 Dudley v Blackford," supra) "I e., Mrs Blackford's fellow-employees Polly Goodman (who also testified that "now when they run [efficiency reports ] they [management] usually call in the ones that don't make production and talk to them"), Lucille Austin ("Of course I read it [bulletin board] all the time Because our production , you know , is up on it"), Vera Hargrove ("I look on there [bulletin board] for our production.. I look at the production every day"), Ida Harris ("Our efficiency is always there [bulletin board] And we 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Protection Service, Inc., 375 F.2d 497, 505-507 (C.A. 6), cert. denied 389 U.S. 843; N.L.R.B v. Soft Water Laundry, Inc., 346 F.2d 930, 934 (C.A. 5); N.L.R.B. v. Redwing Carriers, Inc., 284 F.2d 397 (C.A. 5); Dieckbrader Express, Inc., 168 NLRB No. 113; Kayser-Roth Hosiery Co., Inc., 166 NLRB No. 56; Guyan Machinery Company, 155 NLRB 591. No persuasive evidentiary showing has been made of any plausible reason other than those advanced and established by Respondent by substantial credible evidence why - out of 1,000 employees, with between one-third and one-half Union button-wearing supporters, and a monthly personnel turnover rate of around 2 1/2 percent - Mrs. Blackford alone (aside from Martin 7 months earlier, under the described circumstances) should have been singled out for discharge. For the benefit of Mrs. Blackford, it is emphasized that there is neither desire nor power on the part of the Trial Examiner to sit in judgment on whether she or the numerous supervisory officials arrayed against her during the stormy course of her brief employment with Respondent were right or wrong as to how her job could better or best be done, or indeed if it could be done at all. It may be that Respondent was an inordinately exacting and unreasonable taskmaster toward her, and that it demanded a level of performance which she is not, and perhaps few if any others are, capable of achieving. But the Act under which this proceeding is brought, and which therefore confines the Trial Examiner's legal powers, does not require employers to be kind, humane, just, understanding, or to possess other desirable human virtues; it merely requires that they not violate the Act. I find that it has not been established by substantial credible evidence as required that Respondent discharged Mrs. Blackford because of her Union membership, sympathy, activities, or support, or in order to discourage union membership. This, the measure and limit of the issue here, has simply not been proved. IV. REFERRED ISSUES ARISING OUT OF APRIL 19, 1968, BOARD ELECTION It remains to consider the issues referred by the Board's Regional Director for Region 9, arising out of the Representation election held by him on behalf of the Board on April 19, 1968, among Respondent's Russellville factory workers, upon petition of the Union filed on March 14, 1968, and the parties' stipulation for certification upon consent election. That election resulted in a vote of 400 in favor of and 539 against representation by the Union as collective-bargaining agent. ' On April 26, 1968, the Union filed timely objections to the election, alleging misconduct or impropriety had so contaminated the conduct of the election as to require it to be rerun. Under current Board policy, only events occurring between the filing of an election petition and the election may form the basis for upsetting a Board-conducted election result. Goodyear Tire and Rubber Company, 138 NLRB 453, 454-455; The Ideal Electric and Manufacturing Company, 134 NLRB 1275, 1278. And, of course, the improprieties claimed must be of such order as at least to have contaminated the election process to the extent that the result may reasonably be considered to have been controlled or substantially affected thereby In this case, the critical period involved was thus from March 14 to April 19, 1968. Although the commission of unfair labor practice in violation of the Act within the critical period may prima facie warrant the setting aside of an election (Industrial Steel Products Company, Inc., 143 NLRB 336; Playskool Manufacturing Company, 140 NLRB 1417, 1419; Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1786-87), it is unessential to the setting aside of an election that the impropriety comprise an unfair labor practice. Johnston Lawn Mower Corporation, 110 NLRB 1955; Sparkletts Drinking Water Corporation, 107 NLRB 1462; Peerless Plywood Company, 107 NLRB 427. Inasmuch as no unfair labor practice has been found to have occurred within the critical period here involved,74 our field of inquiry is narrowed to the issue of whether cognizable impropriety other than an unfair labor practice may reasonably be regarded as having affected the election outcome or as having contaminated the Board's official election process to an unacceptable degree. First Objection to Election The Union's first objection to the April 19 election is that during the 2-week preelection period the Employer made threatening speeches to assemblages of employees, allegedly including threats of strikes, violence, loss of benefits, loss of jobs, and plant removal in the event of unionization ; and that employees could be fired for not paying Union fines. Inasmuch as the evidence discloses speeches only by Respondent's Personnel Manager Black and its Plant Manager Johnson during the period specified in the Union's objection, only those speeches need be considered. Since Black's speech to employee groups has already been described in detail in another connection ("8a," supra, under April 1968), it need not be here redescribed.r' In addition to Black's speeches during the 2-week preelection period specified in the Union's objection, a preelection speech was also made by Plant Manager Johnson on April 17, 1968. In this speech, Johnson reminded employees that they would soon be facing their third representation election in 2 years; reminded employees of the plant's growth and history of steady improvements in wages and benefits; cautioned that in a union context, dissension, strikes and violence can occur, with some incidents of that variety already look each day to see what our efficiency is We go by there each day and check . Because our efficiency reports are always put up there And we always look there to see how much we make each day . And we always go by and look each day as we go by"), and Toni Pulley ("[the lunch room bulletin board is] where they post our daily production . And that's the reason I look at it") By way of contrast , Mrs Blackford allegedly recalled seeing only one such production report on the bulletin board, with respect to which "I [Blackford] don't recall looking at it anything about it. Because it was too high up on the wall I mean I don't recall trying to read the production off. Because it was up [too ] high [for me to see it]." "947 ballots (939 valid , 3 void, and 5 challenged) were cast , out of 1,007 eligible voters "See recapitulated disposition of specific allegations of complaints, with dates, Appendix A, infra "In passing , it may be of interest to note that in connection with Black's speeches, as part of his argument to employees that unions in general and the charging party Union here in particular did not always permit local employee members to be masters of their own destiny, Black projected onto a screen a purported excerpt from a trial transcript in an earlier Board case (General Transformer Company et al. 25-CA-2580, reported as 173 NLRB No 61, which proceeding is officially noticed here) However - whether through inadvertence, negligence, or otherwise does not appear - a portion of the excerpt was misquoted , the version shown being the transcript prior to correction by the Trial Examiner's orders of EMERSON ELECTRIC COMPANY evidenced here;` conceded that the Company continued to be "strongly opposed to compulsory unionism"; expressed his fear of a "potential loss of business" in case of any inability to fill orders in the event of a strike, such as has occurred elsewhere in such circumstances; reminded employees that "under a union nothing is automatic - it must be bargained for"; emphasized his belief that "in spite of the distortions and untruths which have been thrown at us we have conducted an honorable campaign, based on the facts. You would not have us do less and I feel proud of the honest and forthright manner in which we have presented our position"; and concluded that "Friday you will once again make an important decision and most importantly for the future of you and your families. I sincerely urge you to vote `no.' " A review of the described remarks of Black and of Johnson fails to disclose any which, in my opinion, is offensive to the Act or its policies, bearing in mind the Constitutional free speech guarantee and the provisions of Section 8(c) of the Act. As has been pointed out innumerable times, employers (like unions) are free - so long as they do not threaten, coerce, or intimidate employees, or give or promise them benefits, or indulge in substantial material misrepresentation, to thwart or traduce free exercise of their rights under the Act - to attempt to sway employees to vote against union representation in a Board election. Moreover, great freedom is permitted in that regard, as has been emphasized by the Board (Crown Paper Board Company, Inc., 158 NLRB 440, 444): The Board permits parties to its representation proceedings wide latitude in the arguments and appeals they may make and in the methods they may use for communicating the same. The Board will not normally set aside elections except in the event of coercion, restraint, unlawful promises, substantial misrepresentations , or other such interference." There is, for example, an absence of any indication to employees "that the Employer would not honor its statutory obligation to meet and bargain with the Union in good faith should the Union win the election." 78 I find that none of the Union's specific charges comprising its first objection to the election has been sustained, and that the indicated speeches were free of unlawful content or taint, and accordingly recommend January 17 and 31, 1968 , as noted in the Trial Examiner's decision of February 21, 1968 (TXD-27-78, p. 2, fn . 5) Thus, the employees were shown a transcript wherein the Union was portrayed as taking the position that if an employer agreed to grant employees a 50 percent wage increase, the Union would not agree to it ; instead of, as shown by the corrected transcript, that the Union would not accede to the acceptance by employees of wages 50 percent "lower than " prevailing area wage scales However, this potentially egregious error has not been objected to by the Union nor has it been complained of by General Counsel , nor so much as mentioned throughout this proceeding . Under these circumstances and considering the further fact that the Union apparently had ample time and opportunity prior to the election to request correction of or itself to correct this error, no significance is ascribed to it for purposes of the instant proceeding "I credit Plant Manager Johnson's testimony that this particular reference was based upon actual incidents of tire slashing and paint spraying of a car in the company parking lot, as well as union card-signing pressurizing . Employee Lucille Austin , a General Counsel witness, conceded on redirect examination that she had "heard of some" violence although she herself saw none "See also, e g, Great Dane Trailers , Inc. 172 NLRB No 139. "Howmet Corporation, 171 NLRB No 18. 99 that said objection, being without merit, should be overruled." Third Objection to Election8" The Union's third objection is based upon allegedly threatening letters written by the Employer to employees during the month preceding the election. In these letters, the Employer is said to have threatened "strikes, violence, fines, and loss of jobs if the Union won the election." Four such letters of Plant Manager Johnson, ranging in date from March 18 to April 16, 1968, have been presented for consideration in this connection. A review of these letters indicates that they are in the category of usual preelection campaign propaganda. I find them free of threats or coercive thrust, the Union being similarly at liberty to exhort employees as to the alleged advantages of voting its way. Accordingly, this objection should be overruled. Fourth Objection to Election The Union's fourth objection centers around the Employer's no-solicitation rule and its operation, which have been extensively discussed above in connection with issues raised in the consolidated Complaint cases. There being no additional showing on this subject in connection with the Union's objections to election and no proof of any unlawful conduct of the character described in the fourth objection within the period here material (i.e., March 14-April 19, 1968), I so find. Accordingly, this objection also should be overruled. Fifth Objection to Election The Union's fifth and final objection to the election is concerned with certain preelection conduct of an employee group identified as the "Emerson Loyal Employees Club" ("ELE"). It is charged that this group spoke to other employees against the Union on company property and time, and distributed antiunion literature as well as sponsored local newspaper advertising and radio announcements of an improper nature in the period before the election, and that the Company failed to disavow the foregoing. Since substantial credible evidence fails to establish that "ELE" employees, in contrast to other employees, were with the Employer' s permission or to its knowledge permitted to propagandize other employees to a significant, if any, extent on company property and time or at company expense, this particular specification of the fifth objection should be overruled. Cf. Mason & Hanger-Silas Mason Co., Inc. v. N.L.R.B., 405 F.2d (C.A. 5). The main thrust of the fifth objection involves handbills and a mass of newspaper advertisements and radio spot-announcements by ELE in its efforts to defeat the Union in the election. There is no evidence, indication or claim that ELE was in any manner encouraged, "The Union's first objection includes the specification that slides, pictures, and clippings of strikes, violence, and job loss were projected to employees during the speeches of Black This is not unlawful, there not having been crudely excessive overemphasis thereon under all of the circumstances, contrary, for example, to the situation in Wigwam Mills, Inc 149 NLRB 1601, enfd 351 F 2d 591 (C A 7) "The second objection was withdrawn. 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sponsored, organized, controlled, dominated, financed, or supported by, or connected with, the Employer. The case is thus unlike a situation where the antiunion propagandist is linked, such as by agency (as defined by the Act), to the Employer, as, for example, in Henry I. Siegel Co., Inc., and Mayor of Hohenwald, Tennessee, 172 NLRB No. 88, with which cf., e.g., Monroe Auto Equipment Company, 159 NLRB 613, 617; Marshfield Steel Company, Inc., 140 NLRB 985, enfd. on other issues 324 F.2d 333 (C.A. 8); and the recent illuminating discussion by Trial Examiner Somers in Tennessee Handbags , Inc., 10-CA-7397 (Nov. 8, 1968). Absent such evidence or linkage, the most that has been established is that the renewed 1968 Russellville plant unionization effort of some employees met with spirited opposition by other employees. Recognizing, however, that preelection occurrences, even though unlinked to the Employer, may be so poisonous to the "laboratory" atmosphere desirable in Board elections (General Shoe Corporation, 77 NLRB 124, 127) as to preclude an election worthy of the name, to say nothing of Governmental result certification imprimatur, I have received into evidence" and have reviewed the material disseminated by ELE to measure it against that standard, within the total module of this proceeding . In my view, it cannot be said that the ELE propaganda exceeds the bounds or is beyond the pale, using what to me appears to be a realistic yardstick. Even had they originated from and had they been disseminated by the Employer, I would continue of this view. Undoubtedly a spirited campaign took place.`2 It is no objection to such a campaign that the opposition to the Union was also spirited , perhaps spirited enough to deprive the Union of expected victory. It may be said that such a spirited campaign far from constituting unlawful interference with the Board's election processes, may produce a more informed polarization of employee sentiment and therefore constitute a more accurate gauge of employees' true representation desires . Nor, in the absence of linkage to the Employer, is the latter under obligation to disavow such material or the views expressed therein, or association therewith , under the circumstances shown and upon the record here made. I therefore find the ELE material in question (1) not to be ascribable to the Employer and (2) not improper so as to warrant voiding the election; and I further find (3) that the Employer was under no obligation to disavow it or any association with it. It is accordingly recommended that the fifth objection to the election likewise be overruled. Since, therefore, it has not been established by substantial credible evidence that any violation of the Act or preelection misconduct or impropriety such as to require setting aside the election conducted under Board auspices on April 19 , 1968, occurred during the period between the filing of the petition for election (March 14, 1968) and said election, the Union's objections to the election should be overruled and the election results certified. Upon the foregoing findings and the entire record, I state the following: "Respondent's objections to admission of this material (G.C Exhs 4(a)-4(e) and 5(a)-5(f) for identification , upon which rulings were reserved at the trial , are overruled "Assistant Winding Room Foreman Adler estimated that "75 or 80 percent of the people that voted for the union were wearing buttons," based on "seeing them walking around in the shop with the buttons on " (Since 450 voted for the Union , this suggests possibly around 350 employees were wearing Union buttons) Conclusions of Law 1. Emerson Electric Company, Respondent herein, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Union, Allied Industrial Workers of America, AFL-CIO, Charging Party herein, is a labor organization within the meaning of Section 2(5) of the Act. 3. Assertion of jurisdiction herein is proper. 4. It has been established by a fair preponderance of the substantial credible evidence that Respondent has engaged in each of the acts found in section III, hereof, as there more particularly set forth and as recapitulated in Appendix A hereto, in violation of Section 8(a)(1) of the National Labor Relations Act as amended. 5. It has not been established by a fair preponderance of the substantial credible evidence that Respondent has violated Section 8(a)(1) of the Act in any of the respects not found in section III, hereof, as there more particularly set forth and as recapitulated in Appendix A hereto; and in each of those respects the complaints herein should be dismissed. 6. It has not been established by a fair preponderance of the substantial credible evidence that Respondent discharged or terminated the employment of James Martin on or about September 8, 1967, or thereafter failed or refused to reinstate or rehire him, in violation of Section 8(a)(3) or (1) of the Act, as alleged in the complaint, because of his sympathy for, membership in, or activities on behalf of the Union, or in order to discourage union membership, or for any other reason violative of the Act; and the complaint should in that respect be dismissed. 7. It has not been established by a fair preponderance of the substantial credible evidence that Respondent discharged or terminated the employment of Sally Blackford on or about April 30, 1968, or thereafter failed or refused to reinstate or rehire her, in violation of Section 8(a)(3) or (1) of the Act, as alleged in the complaint, because of her sympathy for, membership in, or activities on behalf of the Union, or in order to discourage union membership, or for any other reason violative of the Act; and the complaint should in that respect be dismissed. 8. The unfair labor practices and each of them referred to in Conclusion of Law numbered "4" affect commerce within the meaning of Section 2(6) and (7) of the Act. 9. None of the Union's objections dated April 25, 1968, and filed on April 26, 1968, to conduct said to have affected the results of the election conducted under Board auspices on April 19, 1968, has been established by a fair preponderance of the substantial credible evidence; and said objections and each of them should be overruled, and the results of said election should be certified in accordance with the official tally of ballots cast therein. The Remedy Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be required to cease and desist therefrom and take certain affirmative action (consisting of the usual posting of a notice to employees) conventionally ordered in cases of this nature, involving interference with, restraint, and coercion of employees in the exercise of rights secured by the Act. EMERSON ELECTRIC COMPANY Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record, and pursuant to Section 10(c) of the Act, I make the following: RECOMMENDED ORDER It is hereby ordered, that: 1. Respondent Emerson Electric Company, its officers, agents, successors, and assigns shall: a. Cease and desist from: (1) Interrogating any employee in violation of the Act, concerning his or any other employee's union membership, affiliation, activity, sympathy, or desire. (2) Stating or otherwise conveying to any employee, in violation of the Act, that his or any other employee's union activities are under Respondent's surveillance or that Respondent is spying thereon, at any place or time where and when it is legally permissible for such employee to engage therein. (3) Threatening, stating, or otherwise indicating to any employee that in the event he or any other employee joins, affiliates with, or engages in activity on behalf of a union, or that in the event a union is selected to engage in collective bargaining on behalf of employees, or in the event employees exercise any other right which they have under the National Labor Relations Act as amended, Respondent will close or move away its Russellville plant, or that employees will be discharged or lose their jobs, or that Respondent will in any other way retaliate, engage in reprisal, or discriminate against employees. (4) Interfering in any like manner with, or restraining or coercing, any employee in the exercise of his right to self-organization, to form, join, or assist any labor organization; to bargain collectively through representatives of his own choosing; to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection; or to refrain from any or all such activities. 101 b. Take the following affirmative action necessary to effectuate the policies of the Act: (1) Post in its factory at Russellville, Kentucky, copies of the attached notice marked "Appendix B".83 Copies of said notice, on forms provided by the Board's Regional Director for the Ninth Region, shall, after being duly signed by Respondent's authorized representative, be posted by Respondent 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. (2) Notify said Regional Director, in writing, within 20 days from receipt of this Decision, what steps have been taken to comply therewith." 2. Insofar as the complaints or either of them allege violations of the Act not herein found, the complaints and each of them, as amended, are hereby dismissed. 3. The Union objections, dated April 25, 1968, and filed on April 26, 1968, in Case 9-RC-7658, to conduct affecting the results of the election conducted therein by or under auspices of the Board's Ninth Regional Director on April 16, 1968, should be and are hereby overruled; and the results of said election should be certified in accordance with the official tally of ballots cast therein. "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 " "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read- "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX A RECAPITULATION OF DISPOSITION OF SPECIFIC ALLEGATIONS OF COMPLAINTS AS AMENDED a Complaint No. Paragraph Substance Act Sec(s). Disposition 5(a)(i) Aug. 22, 1967: Plant Manager Johnson threatens 8(a)(1) Dismissed (a)(ii) assem bled emp oyees with discharge for union talk on company time or union literature distribution on company property , thereby unlawfully limiting union solicitation. Aug. 22. 1967: Plant Manager Johnson threatens (a)(1) ound I 5(a)(iii) assembled employees to move plant in case of unionization; Aug. 27, 1967: Plant Manager Johnson tells assembled 8(a)(1) Dismissed (a)(iv) emp loyee yee at Respondent would not have to deal with Union even though selected by employees as bargaining representative. Aug. 27, 1967: Plant Manager Johnson tells assembled (a)(1) ismissed employees t ey would receive wage raise if refuse to select union as bargaining representative. a Dates are approximate 102 Complaint No. Paragraph 1 5(a)(v) 1 5(b)(i) 1 5(b)(ii) 5(bXiii) 5(b)(iv) 5(b)(v) 5(c)(i) ,5(c)(ii) 5(c)(iii) 5(cXiv) 5(c)(v) Substance Act Sec(s). Nov. 16, 1967: Plant Manager Johnson threatens 8(a)(1) employees with discharge for union activity Aug. 22, 1967: Supervisor McKenzie creates impression 8(a)(1) of surveillance over employees' union activities (Martin . Aug. 22, 1967: Supervisor McKenzie threatens 8(ax 1) employee arts discharge for union activities. Aug. 22, 1967: Supervisor McKenzie creates impression 8(ax l ) o^^,,/surveillance over employee's union activities (McGuire) Aug. 23, 1967: Supervisor McKenzie creates impression of surveillance over employee' s union activities (Martin). L 4S. 23, 1967 Supervisor McKenzie unlawfully restricts employee talk and union solicitation on Company premises (M artin). Aug. end, 1967: Foreman Robertson threatens plant removal in case of unionization (Harris). Aug. end, 1967: Foreman Robertson creates impression, o surveillance over employees' union activities and discharge for same (Harris . Sept. or Oct., 1967: Foreman Robertson threatens d isch arge for union activities. Set. or Oct., 1967: Foreman Robertson creates impression of surveillance over employees' union activities. Sept. or Oct., 1967: Foreman Robertson threatens discharge for union activities 5(c)(vi) I Sept. or Oct., 1967: Foreman Robertson threatens stockpiling o parts and discharge in case of unionization. 5(c)(vii) 5(cXviii)(A) 5(cXviii)(B) 5(d)(i) 5(e)(i) 5(e)(ii) DECISIONS ,OF NATIONAL LABOR RELATIONS BOARD Mid-Oct., 1967: Foreman Robertson threatens plant closure' in case of unionization. Jan., 1968: Foreman Robertson promises benefits to employee for withdrawing union support and activities. Jan. 1968. Foreman Robertson creates impression of surveillance over employees' union activities. Oct. end, 1967: Plant Engineer Tatich states plant will close in event of unionization. Nov. 17, 1967: Supervisor Adler creates impression of surveillance over employees' union activities. Mid-Nov., 1967: Supervisor Adler forbids employees' talk and movements in order to unlawfully prevent union solicitation on Company property. 8(a)(1) 8(a)(I ) 8(a)(1) 8(a)(1) 8(ax1) 8(a)(1) 8(a)(1) 8(a)(1} 8(a)(1) 8(a)(1) 8(a)(1) 8(a)(1) 8(a)(l) 8(a)(l) Disposition Dismissed Dismissed Dismissed Dismissed Dismissed Dismissed Found Found Found Found Found Found Dismissed Dismissed Found Found Dismissed Dismissed Complaint No. Paragraph 5(e)(iii) 5(f) 5(g) 5(h) 6 2 5(a)(i) 2 5(a)(ii) 2 5(a)(iii) 2 5(b)(i) 2 5(b)(ii) 2 5(c)(i)(A) 2 5(c)(i)(B) 2 5(c)(ii) 2 5(cxiii) 2 5(c)(iv) 2 5(dXi) 2 5(d)(ii) EMERSON ELECTRIC COMPANY 103 Substance Act Sec(s). Disposition Nov. 7. 1967. Supervisor Adler creates impression of surveillance over employees' union activities. 8(a)(1) Dismissed Aug. end , 1967: Personnel Manager Black creates impression of surveillance over employees' union activities. Oct. 31 , 1967 : General Foreman Friedel engages in surve eiiTance over employees' union activities. Early Sept., 1967: Foreman Gooch threatens discharge for union support or activity. Se8, t. 1967: Respondent discharges employee James Martin for Union affiliation , support and activity, and so as to discourages Union membership. Feb. 14, 1968 : Personnel Manager Black creates impression of surveillance over employees' union activities and unlawfully restricts union solicitation on Company property. Feb. 16, 1968: Personnel Manager Black threatens discharge for Union talk "on company time, thereby unlawfully limiting solicitation . on Respondent's property." Apr. 16. 1968: Personnel Manager Black threatens assembled employees with loss of substantial benefits in case of unionization. Jan. 26 , 1968: Asst . Personnel Manager Dudley enlists new employees to report to him on union activities of other employees. Jan. 26, 1968 : Asst. Personnel Manager Dudley threatens new employees with discharge if they engage in any union activity. Feb. 1 1968 : Foreman Boldin creates impression of of surveillance over employees' union activities. Feb. 1, 1968: Foreman Boldin interrogates employee concerning his union activities. Feb. 10, 1968: Foreman Boldin interrogates employee concerning his union activities. Feb. 16, 1968: Foreman Boldin interrogates employee concerning his union activities. Early Feb., 1968: Foreman Boldin engages in surveillance over employee's union activities. Feb. 6, 1968: Foreman Nuyt interrogates employee concerning his union activities. Feb. 6. 1968: Foreman Nuyt threatens discharge for union activities. 8(a)(1) 8(a)(1) 8(a)(1) 8(a)(3) and 8(a)(1) 8(a)(1) 8(a)(1) 8(a)(1) 8(a)(1) 8(a)(1) 8(a)(1) 8(a)(1) 8(a)(1) 8(a)(1) 8(a)(1) 8(a)(1) 8(a)(1) Dismissed Dismissed Dismissed Dismissed Dismissed Dismissed Dismissed Dismissed Dismissed Dismissed Dismissed Found Found Dismissed Dismissed Dismissed 104 Complaint No. Paragraph 2 5(e) 2 5(f)(i) 2 5(f)(ii) 2 5(f)(iii) 2 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Substance Mar. 11 , 1968 : Supervison Adler creates impression of surveillance over employees' union and related protected activities Apr. 17_1968: Foreman Gooch interrogates employee concerning his union activities. Apr. l7, 1968: Foreman Gooch threatens discharge for union activities. Apr. 17, 1968: Foreman Gooch solicits employee to cease support of and activity on behalf of Union. A r. 30, 1968: Respondent discharges employee Sally Blackf ord f or Union affiliation , support and activity, and so as to discourage Union membership I APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, an Agency of the United States Government , and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: After a trial at which all sides had the chance to give evidence, it has been decided that we, Emerson Electric Company , violated the National Labor Relations Act, and we have been ordered to post this Notice. The National Labor Relations Act gives you, as an employee, these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representative of your own choosing To act together with other employees to bargain collectively or for other mutual aid or protection; and If you wish , not to do any of these things. Accordingly , we give you these assurances: WE WILL NOT do anything which interferes with any of your rights listed above. WE WILL NOT question you in violation of the National Labor Relations Act as to your (or any other employee's) Union membership, affiliation , activities, sympathies, or desires. WE WILL NOT tell or indicate to you that your (or any other employee's) Union activities are being spied on or are under our observation at any place or time where you have (or he has) the lawful right to engage in Act Sec(s). 8(a)(1) 8(a)(1) 8(a)(1) 8(a)(1) Disposition Dismissed Dismissed Dismissed Dismissed Dismissed those activities, including your (or his) nonworking time. WE WILL NOT directly or indirectly threaten to close our Russellville plant or to move away from Russellville, or to discharge you or to end or reduce jobs, or in any other way to retaliate or take any reprisal or discriminate against you, in the event you support or join or are active in or on behalf of International Union, Allied Industrial Workers of America, AFL-CIO, or any other labor organization which you want to bargain with us for you collectively. WE WILL NOT in any similar way interfere with, restrain, or coerce you in the exercise of any of your rights under the National Labor Relations Act. We assure all of you that you are free to join or not to join International Union, Allied Industrial Workers of America, AFL-CIO, or any other union, as you see fit in your own judgment, without any interference from us in any way, shape, or form. Dated By EMERSON ELECTRIC COMPANY (Employer) (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, Room 2407 Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3663.