Federal-Mogul Corp.

FEDERAL-MOGUL CORPORATION 325 Federal-Mogul Corporation and International Union, United Automobile, Aerospace & Agricultural Im- plement Workers of America , UAW Cases 10-CA- 11342, 10-CA-11388, and 10-RC-10230 June 2, 1976 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings Respondent contends that the Administrative Law Judge relied on precn- tical period conduct to overturn the election of May 30, 1975 We do not rely on any such conduct in affirming the Administrative Law Judge s rec- ommendation that the election of May 30 be set aside The Respondent has requested oral argument This request is hereby de- nied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties DECISION, ORDER, AND DIRECTION OF THIRD ELECTION BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On January 2, 1976, Administrative Law Judge Walter H Maloney, Jr, issued the attached Deci- sion in this proceeding Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings,' findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Federal-Mogul Corpora- tion, Hamilton, Alabama, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for the Administrative Law Judge's notice IT IS FURTHER ORDERED that the election held on May 30, 1975, in Case 10-RC-10230 be set aside, and that case severed and remanded to the Regional Director for Region 10 for processing in accordance with our Decision, Order, and Direction of Third Election herein, in the following stipulated appropri- ate unit i The Respondent contends it is entitled under the Freedom of Informa- tion Act to have access to all affidavits taken during the election objections investigation, notes, memoranda, particularly appeals and advice memoran- da Regional Directors documents authorizing the issuance of complaints and instructions directing a hearing in these cases On September 12 1975 it requested the Regional Director to produce these materials, which request was denied on September 23 On October 7 Respondent moved for a con- tinuance of the October 20 hearing so it could exhaust its rights of appeal from the denial of its Freedom of Information Act request Notice that the Regional Director had denied that motion was received by Respondent on October 14 Respondent's appeal of the Regional Director's denial (of its information request) to the Acting General Counsel which was pending during the hearing herein was likewise denied by letter dated November 14 By oral motion, Respondent asked the Administrative Law Judge for a continuance at the commencement of the hearing on October 20, to pursue its appeal but said motion was denied by the Administrative Law Judge Respondent contends that the failure to produce this information deprived it of due process The Board's Rules and Regulations, Sec 102 117 provides the procedure whereby the requests for information are to be made Under that section in the event of an adverse determination by the Regional Direc- tor an appeal to the General Counsel should be made At the time of the hearing herein Respondent's appeal of the Regional Director's ruling was pending before the Acting General Counsel Consequently, we affirm the ruling of the Administrative Law Judge which was in keeping with the Board s Rules and Regulations regarding the appeal procedure Further the Respondent was given access to all affidavits of witnesses who testified in behalf of the General Counsel in accordance with our normal procedure Thus even if such affidavits should have been provided at an earlier stage there is no showing that Respondent was prejudiced by the failure to do so Case Concrete Co Inc, 220 NLRB 1306 (1975) Gould Inc, 221 NLRB 899 (1975) 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to over- rule an Administrative Law Judge s resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products Inc 91 All production and maintenance employees employed by the Employer at its Hamilton, Ala- bama, plant, excluding all office clerical employ- ees, plant clerical employees, technical employ- ees, quality control technicians, laboratory technicians, professional employees, guards, watchmen and supervisors as defined in the Act [Direction of Third Election and Excelsior foot- note omitted from publication ] APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Federal-Mogul Corporation is posting this notice to comply with the provisions of an Order of the Na- tional Labor Relations Board The Order was issued after a hearing before an Administrative Law Judge after which we were found to have violated certain provisions of the National Labor Relations Act 224 NLRB No 32 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT coercively interrogate employees concerning their union sympathies and activi- ties WE WILL NOT threaten to close the plant or to lay off employees because they have voted for union representation WE WILL NOT promise benefits to employees in an attempt to persuade them from giving sup- port to the Union WE WILL NOT threaten employees with the loss of existing benefits if they vote for union repre- sentation WE WILL NOT engage in surveillance of the union activities of employees and WE WILL NOT attempt to create in the minds of employees the impression that we are engaging in surveillance of their union activities WE WILL NOT discriminate against employees in the hire or tenure of employees in order to discourage their membership in or support of International Union, United Automobile Aero- space & Agricultural Implement Workers of America, UAW, or any other labor organiza- tion All our employees are free to join or re- main members of that Union or any other union WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of rights guaranteed to them by Section 7 of the Act These rights include the right to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted pro- tected activities for their mutual aid and protec- tion WE WILL offer full and immediate reinstate- ment to Edsel D Emerson to his former job or, if it no longer exists, to a substantially equiva- lent position, without prejudice to his seniority or other rights he formerly enjoyed, and WE WILL make whole Edsel D Emerson and Gary Rob- erts for any loss of pay which they have suffered by reason of the discrimination found in this case, with interest thereon at 6 percent per an- num The representation election conducted on May 30, 1975, has been set aside and another election will be held at such time as the Regional Director of the Board deems appropriate Further notice of the date, time, and place of said election and the eligibility to vote in said election will be posted FEDERAL-MOGUL CORPORATION DECISION FINDINGS OF FACT STATEMENT OF THE CASE WALTER H MALONEY, JR, Administrative Law Judge This case came on for hearing before me at Hamilton, Ala- bama, upon a consolidated complaint,' issued by the Re- gional Director for Region 10 It alleges that the Respon- dent Federal-Mogul Corporation 2 committed various independent violations of Section 8(a)(1) of the Act, and that it laid off Gary Roberts and discharged Edsel De- wayde Emerson in reprisal for union activities in violation of Section 8(a)(3) of the Act The complaint case is consoli- dated with a representation case in which the Union has alleged that the Respondent unlawfully interfered with an election held on May 30, 1975, by various acts and con- duct, most of which constitute the gravamen of the consoli- dated complaint issued by the Regional Director 3 The Umon requests that the election be set aside and that an- other representation election be directed at the Respondent's Hamilton, Alabama, plant The Respondent contends that Roberts was laid off for poor job perfor- mance and that Emerson was discharged for excessive ab- senteeism and for failing to present a medical excuse sub- stantiating the legitimate nature of his absence on March 20 Respondent denies certain allegations of objectionable conduct and independent violations of Section 8(a)(1) but i The principal docket entries in the complaint case are as follows Charge filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW (herein called Union or UAW) on July 14, 1975, and amended on August 4, 1975, complaint issued September 3, 1975, Respondent's answer to original complaint filed Sep- tember 15, 1975, consolidated complaint issued September 24, 1975, answer to consolidated complaint filed October 2, 1975, hearing held in Hamilton, Alabama, on October 20, 21, 22, and 23, 1975 briefs filed with me by the General Counsel, the Charging Party, and the Respondent on December 1 1975 Allegations of objectionable conduct and violations of Sec 8(a)(1) of the Act based on statements made by Supervisor James Hammitte were withdrawn at the conclusion of the hearing by the General Counsel and the Charging Party Therefore, they play no part in these findings and conclu- sions 2 The Respondent admits, and I find, that it is a corporation authorized to do business in the State of Alabama It maintains an office and factory in Hamilton, Alabama, where it manufactures and sells tapered roller bearings used in the manufacture of automobiles and trucks During the preceding 12 months, a representative period it sold and shipped directly from its Hamil- ton, Alabama, plant to points and places outside the State of Alabama merchandise valued in excess of $50,000 Respondent is an employer within the meaning of Sec 2(2), (6) and (7) of the Act The Union is a labor organization within the meaning of Sec 2(5) of the Act The principal docket entries in the representation case are as follows Representation petition filed by the Union on December 31 1974 seek- ing an election in a unit composed of Respondent s production and mainte nance workers at the Hamilton plant, stipulation for certification upon con- sent election agreement approved by the Regional Director on January 24 1975, representation election held on March 7, 1975, which Union won by 252 to 199 objections to election filed by Respondent on March 17, 1975 report on objections, dated April 17, 1975, sustaining one of the objections filed and recommending a second election, direction of second election by Board in absence of appeal by the Union on May 2, 1975, second election conducted on May 30, 1975, which Union lost by a vote of 200 to 237 union objections to second election filed on June 5, 1975 consolidation of objections with the complaint case ordered by Regional Director on Sep- tember 5, 1975 FEDERAL-MOGUL CORPORATION presented no evidence to support its general denial of other aspects of 8(a)(1) violations and objectionable conduct which were alleged Upon these contentions, the issues herein were drawn 4 A The Objectionable Conduct and Unfair Practices Alleged 1 Background Respondent is a conglomerate which manufactures and distributes automobile and truck parts on a worldwide ba- sis Its corporate headquarters is in Detroit, Michigan Its so-called bearing group, consisting of four factories which manufacture automotive bearings, is composed of plants located at McComb, Illinois, Greensburg, Indiana, Lan- caster, Pennsylvania, and the plant involved in these cases which is located at Hamilton, the county seat of Marion County in northwestern Alabama The McComb and Hamilton plants are not organized while the Greenburg and Lancaster plants are For many years the Respondent manufactured tapered roller bearings in Detroit at its Hart Avenue and Shoemaker plants It phased out and closed the Hart Avenue and Shoemaker plants and laid off about 1,900 employees Its Detroit employees had been repre- sented for a long period of time by the UAW In 1972, the Respondent began to construct the Hamil- ton plant Production at that plant started early in 1973 At Hamilton, Respondent manufactures approximately 450 varieties of 4- to 8-inch tapered roller bearings A number of management personnel were transferred from Detroit to Hamilton Respondent also began to hire and to train local residents to work at the Hamilton facility As Hamilton and Marion County have a predominately agricultural background, Respondent found that there was a shortage of skilled and even semiskilled employees in the locality from which it could draw a work force, so, in cooperation with the Alabama Training Center, a vocational training school located at Hamilton, Respondent began a training program to teach employees the many skills and intricate steps involved in the manufacture of bearings By early 1975, the work force at Respondent's plant had grown to 620, including all classifications Recently, Respondent re- duced its salaried personnel by 5 percent and made a slight reduction through attrition of its Hamilton production and maintenance employees The Hamilton plant involves a large-scale commitment of capital amounting to an estimated $30 to $50 million Respondent still considers the Hamilton plant in the start- up phase of operations In 1973 and 1974, the plant opera- tion lost a substantial amount of money and is just now beginning to make a small profit Respondent regards most of its Hamilton employees as semiskilled and still in the training phase of their development Late in 1973, the Machinists (IAM) began an organizing drive among Respondent's production and maintenance employees at Hamilton Other unions, namely, the Steel- workers, the Aluminum Workers, the UAW, joined in At a four-union election which took place in the spring of 1974, 4 Errors in the transcript have been noted and corrected 327 no union won The UAW continued its efforts to organize In December 1974, the UAW served a demand for recogni- tion upon the Respondent, claimed majority status, and offered to prove it with a card check When this request proved fruitless, the UAW filed a representation petition on December 31 and went to one-union election on March 7, 1975 As noted in footnote 3, the UAW won this election by a vote of 252 to 199, but the election was set aside because assertedly misleading propaganda was distributed in the company parking lot the day before the balloting took place The Union lost the second election, held on May 30, by a vote of 200 to 237 It is this latter election, along with certain attendant matters, which are the focal points of the instant litigation 2 Respondent's campaign-objectional conduct and violations of Section 8(a)(1) At both elections in 1975, the UAW put on a spirited campaign to organize the Respondent's Hamilton employ- ees, and the Respondent attempted point by point to counter the UAW's efforts and to resist the organizing ef- fort by various means at its disposal During the first part of May 1975, Plant Manager James W McLeod held two cocktail parties at his home in which he endeavored to enlist community support behind Federal-Mogul's resis- tance of the UAW campaign These parties were attended by a number of local businessmen and community leaders, including the mayor of Hamilton McLeod took advantage of the occasions to deliver a prepared text to his assembled guests He portrayed the UAW's organizing effort as bad for the Company, its employees, and the community He recounted the fact that UAW had represented Federal- Mogul's employees in Detroit for a period of 30 years and attributed the decision of Federal-Mogul to close those plants in large measure to the UAW's "series of excessive wage and benefit demands " The results were a loss to the Detroit area of 1,900 jobs and a gross payroll of $20 mil- lion He suggested that other companies, such as Allis- Chalmers, had the same unhappy experience because of the UAW McLeod went on to tell his guests that the Re- spondent was responsible for a $6 3 million payroll in the Hamilton area, but it was not yet firmly established and it would take several more years to become so established He cited current economic conditions as a complicating factor He further charged that the advent of the UAW could further complicate the situation and make it even more difficult to achieve the stability necessary for a long- term operation He urged the local business men and com- munity leaders to "speak out, counsel, and explain why in your opinion the UAW would be bad for the employees, the Company, and the community " Lists of Respondent's employees were present at the parties for inspection by the invited guests, and they were encouraged to call McLeod or Company Personnel Manager Jerry Meyers, either at the office or their homes, for further information McLeod also conducted a series of meetings between May 19 and 23 among the employees at the plant Some 27 such meetings were held during this period of time in the Company's conference room Employees were brought in to the room in groups of 15 to 20 and were given approxi- 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mately the same talk by McLeod who used notes to assist in his presentation He recited the benefits of remaining unorganized and the shortcomings of the UAW and its campaign effort He stated that the Hamilton Plant had lost money in 1972, 1973, and 1974 and was in a position to start making a profit for the first time at the beginning of 1975, when the economy slowed down, the plant was dis- rupted with continued union activity, and customers can- celed orders He stated that, in March and April, custom- ers canceled $1,449,419 worth of orders from the Hamilton plant 5 He also noted that there had been a reduction of salaried personnel in the office and shop of 5 percent, while Federal-Mogul plants throughout the United States laid off 1,617 (or 22 percent) of their employees and the Southfield headquarters reduced its staff by 119 (or 17 percent) He expressed the hope that layoffs could be avoided at Hamil- ton, noting that steady paychecks had been a way of life at the Hamilton plant and that the Company would do ev- erything it could to keep it that way He recounted the history of Federal-Mogul, stating that in Detroit it had been beset with foreign competition and UAW demands, so in the face of such pressures, its only alternative was move or get out of the bearing business and it did both it lost some business and moved the rest to McComb, Illi- nois, and to Hamilton, Alabama, two union-free plants He observed that the UAW did nothing to save the jobs of employees who worked in Detroit and now it is seeking to get into the Hamilton plant He expressed the opinion that the presence of the UAW in Hamilton would keep industry from moving into the locality and stated, "If the UAW had been here, this plant would not be here " McLeod reiterat- ed the Company's determination to resist the UAW be- cause, "if we don't, it will hurt this area from job growth (sic)-Many people in the past were forced to move away because of no jobs I sincerely believe your children will be affected by how you vote on May 30 " He went on to cite examples of other communities, such as nearby Russellville, Alabama, where unionization of a plant had caused community stagnation He called on al- leged UAW promise of a dollar-an-hour wage increase fan- tastic and said it would not happen at Hamilton He stated that Federal-Mogul was going to stay competitive "We made the mistake once of paying non-competitive wages and benefits and ended up with closed plants We are com- mitted to never making the mistake again It is not what you need I personally think that without the hostile UAW disrupting this plant you have a better change to move forward on wages " As an example of asserted UAW ex- cess, he referred to the status of the Hoover Ball and Bear- ing plant at Whitmore Lake, Michigan, near Detroit Mc- Leod had formerly worked for Hoover Ball and Bearing He stated that because Hoover did not reach agreement with the UAW, it just announced that it was closing its plant He also claimed that Allis-Chalmers went out of the pad-mounted transformer business because they were way out of line on wages and attributed this situation to the UAW He noted that Federal-Mogul did not want a layoff, 5 McLeod admitted at the hearing that no customer had ever informed him that it was canceling an order either because of the UAW or its organiz- ing campaign "but if we had to have a layoff, it will be by seniority," stating that such a procedure was guaranteed to employees in writing by the Respondent In addition to the series of small group talks given by McLeod in mid-May, he also gave a series of five "25th Hour" speeches the day before the election to larger assem- blies of employees in the plant cafeteria I credit employee Jerry Inmon's statement that, at the speech Inmon attend- ed, McLeod told employees that, without unionization, there were no strikes or violence and they had avoided a layoff at Hamilton even though the economy was bad Among the many leaflets distributed by the Respondent during the campaign was a cartoon which was circulated about March 20 It portrays a union spokesman champi- oning "UAW's Detroit Model Super Package," including automotive wages, job assignment clause, and huge bene- fits, but then cautions employees about "what's behind the scene9" On the following page are drawings of closed plants On or about May 26, the Company distributed ad- ditional campaign literature in the form of a question-and- answer booklet The booklet was designed to emphasize the disadvantages of unionism In answering the question, "How would the Company run the plant if the UAW wins", the Company replied, "strictly according to the contract This means that employee problems will not be dealt with individually, but only through the union you selected as your SOLE SPOKESMAN For instance, this means that if the economy is down the Company will lay off em- ployees strictly by the contract rather than continuing at full employment as it has over the past few weeks" In another leaflet, distributed a day or two before the election, Respondent made additional question-and-answer state- ments It gave a negative answer to the question, "Can the UAW guarantee you that Federal-Mogul will keep operat- ing here if you vote for the UAW9" On May 19, it issued a leaflet containing similar language to that used by McLeod in his personal talks with employee groups Among the statements made in writing was "The economy has slowed down, this plant has been disrupted with continued union activity and customers have canceled orders In fact, in March and April, customers canceled $1,449,419 worth of orders from the Hamilton plant The present outlook is not good, but I remain optimistic If we can get this union business behind us, if our customers gain confidence, and if the economy recovers, as most think it will, then this plant can again progress forward In the meantime, I have reluctantly taken some necessary initial steps There has been a reduction in salaried personnel (office and shop) of about 5 percent In an attempt to gain back some business, there is also a price reduction effective June 1 on most of our bearings These are modest measures, and I hope se- vere steps can be avoided " 3 Statements of individual supervisors to employees There is testimony in the record adduced both by the General Counsel and the Charging Party to the effect that various supervisors made statements to employees during the course of the preelection campaign which constitute violations of Section 8(a)(1) of the Act or objectionable conduct A large number of supervisors involved in these FEDERAL-MOGUL CORPORATION 329 conversations were not called as witnesses to admit, deny, or explain their statements, and Respondent's declination to proffer them is not explained 6 Accordingly, statements attributed to such supervisors by various employees or for- mer employees who testified in support of the complaint or objections will be taken as recounted by them On or about May 21, Foreman Keith D Thomas ap- proached maintenance mechanic Jerry Inmon as he was repairing a conveyor and began to speak to him about the Union and the forthcoming election Thomas asked Inmon why employees were for the Union and what the Company had done to turn them against the Company He asked Inmon what the Union could do for employees generally and specifically what the Union could do for Inmon as an individual employee He also asked Inmon if employees really believed the rumor that the Union would get them a $1 an hour more in wages Thomas told Inmon that the Company would close the plant down before it would give employees a $1-an-hour raise On the Wednesday before the second election (which took place on Friday, May 30), Inmon requested a meeting with General Foreman Roger H Steagall in Steagall's of- fice The meeting was attended by Steagall, Inmon, Thom- as, and Harry McCarley, a welder who had been elected chairman of the union negotiating committee following the short-lived union victory of March 7 The purpose of the meeting was to discuss Inmon's longstanding request that his brother be hired at the plant During the meeting, Stea- gall asked McCarley and Inmon why they supported the Union and also asked them what they expected to gain from a union victory Steagall asked them if he thought there was going to be a big raise throughout the plant if the Union won, stating angrily that there was "no damn way" that such a raise would be granted During the meeting, either Steagall or Thomas said that he had heard reports to the effect that an employee, B C Allen, had spoken at a union gathering, slammed his fist on a table, and stated that he would close the plant down Inmon's reply was that Allen was not the Union and that the people would decide before any strike took place It was also noted that Mc- Carley, not Allen, had been elected chairman of the com- mittee and "you didn't see him jumping up and down " Steagall concluded the meeting by asking the employees to vote "No " On the day before the election, Foreman Salvatore "Sam" Alma approached Inmon as he was working on a machine and asked him what he expected to gain from supporting the Union He also asked Inmon what the Company had done to him to cause him to turn against it Inmon then asked Alula if he thought that the Company would really close down the plant if the Union came in and Alma replied, "Yes, if they had to " Inmon also overheard a conversation dust before the election between Foreman James Anglin and employee 6 Supervisory personnel named as witnesses to or perpetrators of objet tionable or 8(a)(1) conduct and who did not testify are as follows Ernest M Norton, Leroy A Howard, Jack D Farris, Keith Thomas, Roger H Stea- gall, Phil Gervais, William H Mixon, Kenneth E Hammitte, Charles Flatt James Anglin, Salvatore Aluia Jack E Miller Rick Chambliss, and Darrel Smith Billy Joe Cantrelle Inmon chimed into the conversation, which dwelt on the subject of unionization, by telling Ang- lin that he could not change Cantrelle's mind Anglin said, "I can try, can't IT" At this point, Anglin asked both Can- trelle and Inmon what they expect to gam from unioniza- tion, arguing that wages were good and had improved from what they were when the employees had first hired in In- mon replied that the cost of living had also risen, whereup- on Anglin replied, "Well, things will get better as the union activity gets out " They asked Anglin if he thought employ- ees would have gotten raises if an election campaign had not been in progress, Anglin replied that he could not say for sure, but "it couldn't hurt any " On the day before the election, Foreman Phil Gervais spoke to roll grind operator Billy Lindsay about the Union while he was operating his machines Gervais said he could not understand why employees would pay union dues for something they really did not need Gervais, who had worked Federal-Mogul in Detroit, further stated that peo- ple were unemployed in Michigan because Federal-Mogul had moved its plant He told Lindsay that, if the Union came in, employees could not take their grievances to their foreman but would have to let the Union handle it Lind- say attanded one of the small group meetings which Mc- Leod held in mid-May At the meeting which Lindsay at- tended, McLeod stated that unions generally were the cause of violence and then referred to the Mueller Brass Company plant at nearby Fulton, Mississippi He stated that it took a union over a year to get a contract at Mueller Brass He also stated that strikes and violence were the reasons why no industry was moving into nearby Russell- ville, Alabama Setup man David Harkness attended one of the "25th Hour" talks given by McLeod to large assemblies of em- ployees in the company cafeteria At the speech attended by Harkness, McLeod stated that the Company had made good progress, with no violence and no layoffs, without the UAW and he was optimistic that there would be no layoffs as long as the Company remained free of unions On sever- al occasions just before the election, Rick Chambliss, Harkness' foreman, asked him, with reference to the forth- coming election, whether his "heart was in the right place " Harkness was wearing UAW buttons on each occasion On one such occasion, Harkness replied that he knew from the start what he was going to do On or about May 19, Personnel Director Jerry Meyers came up to machine operator James D Norris and asked him what he thought about the Union Norris replied that he was undecided, so Meyers asked him if there was any- one in the community around Hamilton that he could trust and could talk to Norris replied that there was not because he lived in the town of Winfield Shortly thereafter, Norris received a letter from Rankin Fite, an attorney in Hamil- ton who had represented him in personal matters several years before Fite told Norris in the letter that he wanted to speak with him Fite is and has been a prominent political figure in Marion County He represented that county in the Alabama legislature for many years and was at one time Speaker of the Alabama House of Representatives His firm, Fite, Fite, and Davis, is local counsel for the Respon- dent and is the registered agent of Federal-Mogul under 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Alabama corporation laws 7 Norris called Fite and asked him what it was about Fite said that he would prefer to talk with Norris at his office, so Harris drove from Win- field to Hamilton to speak with him The conversation in Fite's office was devoted exclusively to the question of the organizing campaign at Federal- Mogul Fite said to Norris that he had heard that he was pushing the Union at Federal-Mogul Norris replied that he was not doing so Fite told Norris that two plants, which would employ about 700 people, were considering a reloca- tion to the Hamilton area but they would not do so if the UAW won the election at Federal-Mogul He then asked Norris to vote no Norris replied that he would vote in the forthcoming election the same way he did the last time, and this statement ended the conversation Norris also attended one of McLeod's preelection speeches in the cafeteria I credit Norris' testimony that, at the speech which he attended, McLeod stated that he was optimistic that there would be no layoffs if the plant stayed nonunion Machine operator Harris W Walker attended one of the 27 meetings which McLeod held in the conference room with groups of employees in mid-May I credit Walker's testimony to the effect that, at the meeting he attended, McLeod said that the reason Federal-Mogul moved out of Detroit was that the Union placed such heavy economic demands on it that the Company could not remain com- petitive and that, if the Union was in at Hamilton, custom- ers would cancel orders at that plant McLeod also stated that plants were refusing to move into Russellville because of unionization which took place there Walker challenged McLeod's statement, asking McLeod how, if customers re- fused to buy from unionized plants, they could stay in business McLeod simply stated that, if a union was voted in and the plant went on strike, customers would have to look elsewhere for supplies McLeod also mentioned the check stubs of Allis-Chalmers employees which the Union had distributed before the first election and which formed the basis upon which the first election was set aside He stated that the employees whose stubs were distributed were on layoff, although he declined, upon request, to dis- close the names of the employees in question McLeod sug- gested to Walker that he ask the UAW organizer the iden- tity of the Allis-Chalmers employee in question On March 7, the day of the first election, former employ- ee Ricky I Palmer, a known union sympathizer, was asked by his foreman, Ernest T Norton, if he had changed his mind about the way he was going to vote Norton then asked Palmer if there was anything he could do to change Palmer's mind About 2 weeks before the second election, Norton approached Palmer at his work station and asked him how he thought he would be better off with a union Palmer simply replied that he thought he would be better off 7 Rankin Fite's partner and nephew, Arthur Fite actively handles legal matters for Federal-Mogul, although Rankin Fite himself does not do so On the basis of the above-mentioned considerations and on the basis of the Respondents effort to enlist the business community in general (though not the Fite firm in particular) to assist it in resisting the UAW drive I find that Rankin Fite was and is a nonsupervisory agent of the Respondent At a Wednesday evening meeting in the Heat Treat De- partment, which is often held in order to schedule Saturday work, Plant Metallurgist Fayette "Pat" Bellew spoke with 11 or 12 employees who worked on second shift about the general economic standing of the Company and of that department This meeting took place shortly before the election I credit Palmer's statement that, at the meeting in question, Bellew told employees that if the Union won, the Company would probably have to lay off some employees, but if the Union lost it would try in every way possible to avoid doing so On the midnight shift just preceding the May 30 election, Cone Department Supervisor Darrell Smith came up to the third-shift maintenance man Walter E Walker and asked Walker if he thought that the plant needed a union Walker said that he thought it did, so they began to argue the pros and cons of unionization On this same shift, about 2 30 a in , Foreman Leroy Howard asked Walker to come into the company office to speak with him They proceeded to a small office or conference room adjacent to the main office where they sat and talked behind closed doors for 10 or 15 minutes Howard went over the provisions of the union contract with the Mueller Brass Company at Fulton, Mis- sissippi, and told Walker that the Mueller Brass employees had lost more than they had gained He then asked Walker what he thought that Federal-Mogul employees would gain by unionization Walker replied that he did not know be- cause they did not have a contract as yet He also asked Walker if he thought there would be a strike Walker re- plied that he did not know Walker noticed that Howard was bringing other night-shift employees into the same of- fice during this shift He had never had a conversation with a supervisor in this office before, as it was the normal prac- tice of foremen to discuss matters with employees at their work station Hugh R Edgar also worked on the 11 p in -7 30 a in shift About 2 30 a in on the morning of May 30, his fore- man, Jack Farris, came to him at his work station and asked him to accompany him to the office because he wanted to show him something Edgar had never been in that office before except for his initial employment inter- view with Company Personnel Relations Supervisor Nor- man Holloway During a 20-minute interview, Farris showed him the Mueller Brass contract and compared ben- efits at Mueller Brass under the contract with those at Fed- eral-Mogul During this discussion, Farris told Edgar that, if the Union won the election which was scheduled to be- gin that morning, it would cause the plant to close Farris then asked Edgar to vote for the Company On the day before the election, William Mixon, foreman in the Heat Treat Department, approached employees Ellie Jane Eads and Ida Vickory and asked them why they were displaying union buttons This was the first day on which either of these women had done so Mixon went on to ask them what the Union could do for them that the Company could not, and inquired as to why these two women were mad at the Company Mrs Eads explained to him the na- ture of their grievance relative to being bumped from one job to another Mixon, who was a supervisor in another department, asked them if they would like to work for him in Quality Control They replied that they would not On FEDERAL-MOGUL CORPORATION the same day, Supervisors Jack Miller and "Pat" Bellew approached Mrs Eads and Mrs Vickory and repeated the question as to why they were wearing union buttons They repeated their dissatisfaction with the working of the com- pany seniority system Later General Foreman Kenneth E Hammitte asked them why they were not wearing "I care" buttons, an insignia distributed by foremen and worn by some employees who opposed the unionization of the plant Shortly before the election, Supervisor Charlie Flatt ap- proached machine operator Lowell Gann and noted the presence of a "Vote Yes" pencil clip on Gann's pocket He asked Gann what the "Vote Yes" clip meant and Gann told him it meant he was going to try to do everything he could do to help the Union Flatt then asked him how this would help him, to which Gann replied that he did not know but that it certainly could not do him any harm 4 The 3-day layoff of Gary H Roberts on July 24 Gary H Roberts has worked for Federal-Mogul for 2- 1/2 years He is a setup man on the first shift in the Auto- matics Department and works for Foreman Samuel L Bowlby About five setup men and eight machine opera- tors man the automatic screw machines in this department on first shift These machines turn out the cones or cups which contain the tapered bearings As a setup man, Rob- erts is assigned to set up, or prepare the screw machines for operation This is a lengthy process and involves making various adjustments which must be made in order to pro- duce cups or cones tailored to the specifications of a partic- ular order Roberts and other setup men act as trouble- shooters for the less skilled machine operators When setup men are not occupied with setting up a particular machine, they "float" from machine to machine to see if they can be of assistance to the operators There are about 30 screw machines in the Automatics Department On any given day, about 20 are in operation The others are either dead- lined for repairs or are in the process of being set up for a new order Setup men receive their assignments each morning from Bowlby It is customary for any operator who may require the assistance of a setup man for a short period of time to request help directly from the nearest available man Setup men have been instructed to render such assistance when- ever possible, since the productivity of the department de- pends directly on the smooth functioning of the machines under the control of the operator If the interruption of a setup assignment to assist an operator is to extend over an lengthy period of time, clearance for the interruption is normally requested from Bowlby It is often a question of judgment as to whether the difficulty in the functioning of a screw machine is properly the task for a setup man, or whether the problem is serious enough to require the ser- vices of a more skilled maintenance man from the Mainte- nance Department Roberts was a union activist He signed a union card, solicited cards from other employees at the plant, and wore a union button to work About a week before the second election took place, Bowlby spoke to Roberts while making the rounds of the machines under his supervision and 331 asked him what the Union could do for him that the Com- pany could not He went on to try to enlist Roberts' sym- pathies for the Company's position, although he admits knowing that Roberts was a strong union supporter After the Union filed its objections to the conduct of the second election, Board Agent Donald E Howard, the Resi- dent Officer of the Birmingham Office, made an investiga- tion of the objections In the course of his investigation, he interviewed Roberts on July 1 During this discussion, they apparently talked about the question of whether the pen- dency of the objections should stand as a bar to a compa- nywide wage increase which was in the offing Shortly thereafter, at a periodic meeting of department employees, a discussion took place with Bowlby concerning whether the Company would be giving a raise which had been con- templated Bowlby stated that he did not know if the Com- pany could grant such a raise because of the pendency of the objections Roberts spoke up to say that he had asked Howard about this problem when Howard was interview- ing him and had been assured that the investigation of the objections would not prevent the Company from granting a wage increase Shortly thereafter, on July 10, Roberts was summoned to the office of General Foreman Douglas Todd and there was engaged in a lengthy discussion with Todd and Bowl- by of his asserted job deficiencies In addition to regular personnel files maintained by the Respondent in its Per- sonnel Department, Bowlby keeps a file of written memo- randa or "joggers" in his desk in the plant on a majority of the employees under his supervision He stated that most of the entries in his files are adverse reflections on his em- ployees' performance There is evidence that other foremen under Todd's supervision maintain similar files Under the practice extant on or before July 10, individual employees did not know, except possibly by chance, if written memo- randa were being placed in these informal files by Bowlby At this interview, Roberts was shown a summarized list of 12 entries relating to job deficiencies which had found their way into Bowlby's file This list was outlined on a one-page memo, dated July 10 The items listed thereon ranged from Roberts' taking an extended coffeebreak to threatening in- subordination to a generic category called "poor perfor- mance " Most entries were simply labeled "poor perfor- mance " The item relating to overextending a coffeebreak took place on January 20, 1975 The other 11 deficiencies occurred between May 8 and July 10 One of the entries- for loitering-was made on the day of the July 10 inter- view The July 10 memorandum, addressed by Todd to Per- sonnel Director Jerry Meyers, also contained the notation Subject has been counseled by his supervisor re- garding each of the above His reactions have general- ly been negative Because there has been no improve- ment in subject's work habits as a result of the above-listed counsehngs, I am going to talk to subject today and tell him he must make significant improve- ments in his work habits by 7-24-75 (two weeks) or I will have no recourse except to terminate him The memo was signed both by Todd and Bowlby Todd asked Roberts to sign the memorandum at the bottom but 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he refused, saying that he had not been counseled on each of the occasions mentioned Roberts asked to see the origi- nal memos in Bowlby's file from which this list had been prepared, saying that he wanted them for his lawyer Todd declined to grant the request, saying that there was no need for a lawyer and all that Roberts had to do to save his job was to improve his job performance Respondent distributes to employees a personnel guide or "blue book" to assist them in learning about its policies and procedures The "blue book" does not outline in detail any formalized procedures for handling questions of disci- pline and discharge, noting only that the Company nor- mally gives warnings for a first offense except when serious matters are involved While Respondent's witnesses gave assurances that there were and are consistent and regularly followed disciplinary and discharge procedures, such pro- cedures are not written and amount, for the most part, to the ad hoc determinations on any related question by Per- sonnel Director Meyers 8 We are told that discipline for poor performance by an employee-as distinguished from absenteeism-was, on July 10, governed by a three-step procedure leading to discharge The first step was an oral warning, the second step, a written warning, and the third step, termination With respect to discipline for absentee- ism, there was an additional step, namely, a 3-day suspen- sion between written warning and discharge Both from the testimony of Respondent's witnesses and from the lan- guage of the July 10 memo, there is no question but that, as of July 10, the written warning memo sent to Meyers was regarded by management as the predicate for a possible discharge of Roberts 2 weeks thereafter In the 2 weeks which elapsed between July 10 and 24, Bowlby "wrote up" Roberts six times in 10 workdays The writeups were often couched in argumentative terms A summary is as follows 1 July 14-Roberts took an entire 8-hour shift to put three spindles on a shaft on Machine #19 when 6 hours was enough to place all four on the shaft 2 July 15-Roberts spent 10 minutes (from 9 20 to 9 30) in the snackbar 3 July 15-Saw Roberts talking to employee Harry McCarley 4 July 18-Roberts arrived at work and punched in before 7 a in starting time of day shift but did not get assignment until 7 04 a in, as per custom in de- partment, and is regarded as tardy 5 July 19-Lengthy discussion about Roberts fail- ure to start on set-up Machine #10 Was working on Machine # 13 In effect, he failed to comply with Bowlby's instructions 6 July 24-Roberts seen talking with employee Don Strickland away from Machine #19 he was working on Later in the day Roberts was seen talking 7 minutes with groundkeeper Watson McRae Bowlby admits that, because Roberts was under threat of discharge during these 2 weeks, he did not personally call 6 Roberts testified mistakenly that the `blue book" contained provisions for a four-step disciplinary procedure The book in question is in evidence and contains no such procedure any of these derelictions to Roberts' attention, since Rob- erts knew what he should have been doing On July 24, Roberts was summoned to Meyers' office, where he met with Bowlby, Todd, and Meyers Between July 10 and 24, Meyers had determined to insert a new procedural step in the process for disciplining employees for poor job performance, thereby bringing it into con- formity with the four-step procedure which he had used in discharging Edsel Emerson for absenteeism (see infra) In- stead of terminating Roberts on July 24, Meyers gave him a 3-day suspension without pay Respondent's witnesses testified that when Roberts returned to work after the sus- pension his job performance was such that, to date, the Company has had no further cause to give him writeups or impose disciplinary action Roberts states that his job per- formance after July 29 was no different than what it was before his suspension 5 The discharge of Edsel Dewayde Emerson on March 25, 1975 Like Roberts, Edsel D Emerson was a setup man in the Automatics Department on the first shift and worked un- der Foreman Samuel D Bowlby Unlike Roberts, Emerson had no record of poor performance on the job, however, the Respondent had often voiced its serious objection to his failure from time to time to be on the job Emerson started to work for Federal-Mogul in February 1973 and went through a training course established by the Respon- dent at the Alabama Training Center When the IAM be- gan an organizing drive which led to the multiunion elec- tion in the spring of 1974, Emerson supported the IAM and his support was made known to the Respondent by that Union During the UAW campaign which led to the March 7 election, Roberts signed a card, engaged in leaf- letting at the plant gate, and wore a UAW button Howev- er, Respondent's witnesses Bowlby and Todd both testified that Emerson was relatively quiet and inactive during the UAW effort until a week or two before the election, when, as Bowlby put it, "he got real verbal " Todd also noticed a similar change of heart by Emerson just before the March 7 election Emerson had a conversation with General Foreman Douglas Todd at Todd's desk just after the first shift quit- ting time The conversation took place a few days before the March 7 election As Emerson was getting ready to leave the plant, Todd asked him if he had changed his mind about the Union Emerson replied that he had not and that he was 100 percent for the Union Todd suggested that he reconsider his position and asked him why he sup- ported the Union Emerson stated that he was doing so in order to improve his lot in life and that of his family, whereupon Todd stated that if he continued on along the road he was following, his actions would affect his job and his future On the following day, Emerson was speaking to Bowlby as Bowlby was checking the operation of the ma- chines in the Automatics Department He asked Bowlby, "What are we going to talk about after the election9" Bowlby replied, "Not anything, because you are not going to be here " v Bowlby also asked Emerson if there was any- 9 1 credit Emerson s testimony on this point FEDERAL-MOGUL CORPORATION thing that Bowlby could do to change his mind concerning the forthcoming election On another occasion just before the election, Bowlby spotted Emerson walking toward the toolcrib Emerson was carrying a signed union membership card in his shirt pocket which he hadjust obtained from another employee Bowlby reached into Edwards' shirt pocket, pulled out the card, and read it Emerson objected to Bowlby's action and told him that the matters contained on the card were confi- dential On another occasion, Emerson had placed a piece of union literature in his toolbox and had left the box in an open position near the machine he was working on The literature in question was a card on which a large red spot was printed It bore the legend, "If all the statements the Co put out were true you could blow on this red dot and it would turn blue " 10 Bowlby reached into the tool- box, pulled the card out, and set it on fire with a cigarette lighter, saying "This is what I think of your card " Emerson had a record of considerable absenteeism In the spring of 1974, Bowlby spoke to Emerson about it and warned him that his attendance would have to improve In June 1974, the Respondent sent Emerson a letter of repri- mand noting the same deficiency Emerson had unexcused absences throughout the summer of 1974 and specifically on August 26 and September 10 and 21 During the sum- mer months Emerson also had a number of excused ab- sences which were occasioned by domestic difficulties which he was experiencing at the time On Monday, Sep- tember 23, Emerson met Bowlby in the company parking lot on the way into the plant He asked Bowlby if he could have 3 days off to take care of a domestic problem Bowlby said he would see what he could do about it Later in the day, Emerson was told to go to Meyers' office Meyers informed Emerson that he would have 3 days off but it would be a disciplinary suspension because of poor atten- dance Emerson said that he did not want the time off if it was to be awarded in this fashion Meyers told Emerson he was getting it in the form of a disciplinary layoff whether he wanted it or not As a result, Emerson was off on Sep- tember 24, 25, and 26 During the ensuing 6 months, Emerson missed addition- al time On Bowlby's records, these absences were recorded as follows September 30 October 28 November 9 December 26, 27, 28 January I1 January 27, 28, 29 February 10, 11, 12 February 25 February 27 March 20 unexcused excused unexcused unexcused anexcused excused (sick-had tooth pulled) doctor's excuse (sore throat) excused unexcused In addition to these absences, Emerson missed time on various days which caused him to work less than a normal 10I rejected Resp Exh 5-J at the hearing That ruling is hereby reversed and the document is admitted into evidence 333 8-hour shift It was Emerson's March 20 absence which laid the groundwork for his removal On Wednesday, March 19, the personnel office received a phone call to the effect that Emerson's 8-year-old son was sick at school Emerson was requested by school au- thorities to pick him up and take him home After getting the message, Emerson asked Todd for time off to respond to the call and Todd honored the request Emerson was absent from the plant about an hour on this errand and then returned to finish his shift On Thursday, March 20, Emerson stayed home all day His wife was ill with a sore throat and a fever, so Emerson took care of her and also their sick son The Emersons also have a 5-year-old daughter I credit Emerson's statement that he phoned the Respondent's personnel office in the middle of the morning and informed Jean Fortner, the clerical employee who normally receives such calls, that he would be out that day The Emersons originally believed that their son had the measles When his condition did not improve, he was taken to a Dr Kirk in Hamilton the fol- lowing week and was found to have scarlet fever Emerson returned to work on Friday After he reported in, Bowlby asked Emerson where he was on the previous day After Emerson recounted the problem with his sick son, Bowlby was disposed to let the matter drop However, later that day, Todd came to Emerson, and in Bowlby's presence, asked Emerson why he missed work on Thurs- day Emerson said he was out because his son was sick They asked him what doctor he used for his son Emerson replied that he used a doctor in Amory, Mississippi, and a doctor in Hamilton Just before the end of the shift, Emer- son was told to report to Meyers' office When reported to Meyers' office, Bowlby and Todd were also there Meyers asked him why he was absent on Thursday Emerson re- plied that his son was sick Meyers asked him if he had a statement from a physician showing why it would be neces- sary for him to miss work in order to care for him Emer- son said he did not Meyers told him it would be necessary for him to get such a statement or he would be terminated Emerson replied that he did not have such a statement nor could he obtain one because in fact he did not take his son to see a doctor the preceding day Meyers said he would have to have such a statement by 3 30 p in on the follow- ing Monday or he would be fired II Respondent's witnesses testified that Emerson told them on Friday that he had in fact taken his son to an unnamed and unremembered physician in Amory, Mississippi, on Thursday and had to drive him there because the tires on his car were poor and he was reluctant to allow his wife to drive a car in that condition There is no question in this record that Emerson's son was sick and that he did not take him to a physician in Amory or anywhere else on Thursday Staying out of work to care for a sick wife and child is certainly a legitimate excuse for an absence, and Respondent's witnesses so admitted Emerson had no rea- son to fabricate an alternative story for his supervisors I credit Emerson's account to the effect that he informed 11 Respondents witnesses differ among themselves as to whether Meyers told Emerson on this occasion that he was suspended pending receipt of a doctor s excuse Accordingly I credit Emerson s version to the effect that he was not in fact placed on suspension by Meyers on Friday afternoon 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Todd, Bowlby, and Meyers that he was home all day on Thursday for the reason indicated When Emerson reported to work the following Monday at 7 a in, his timecard was missing from the rack Bowlby met him and told him that he would have to wait in the cafeteria until the personnel office opened at 8 am When Personnel Relations Supervisor Norman Holloway arrived, he asked Emerson if he had a doctor's excuse for missing work the preceding Thursday Emerson said he had no such excuse Holloway told Emerson that Meyers had or- dered him not to let Emerson go back to work without an excuse Holloway then told Emerson that he was suspend- ed and ordered him to leave the plant Emerson did so and did not return B Analysis and Conclusions 1 Threats of reprisal The Board and the courts are frequently called upon to review campaign literature in order to determine whether particular statements contained therein are protected ele- ments of employer free speech and fair comment, or whether they amount to coercive attempts to dissuade em- ployees from voting for union representation In drawing these often fine and tenuous Imes, we find guidance in the Supreme Court's celebrated Gissel case 12 and in Chief Jus- tin Warren's often-cited delineation between permissible and prohibited electioneering [An employer] may make a prediction as to the pre- cise effect he believes unionization will have on his company In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably prob- able consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization If there is any im- plication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion, and as such without the protection of the First Amendment In this case, we are confronted by numerous statements by the Respondent regarding the status and prospects of a large factory which is still in the startup phase of opera- tions During the first 3 years of its existence, the Hamilton plant lost money but continued to expand its work force from zero to more than 600 persons In 1975, the year of the current campaign by the UAW, this plant has just be- gun to make money for its owners, although more than $1 4 million of anticipated orders had been canceled De- spite the fact that 1975 marked the first year in which the Respondent's Hamilton plant was not in the red, the Re- spondent, both in writing and in statements by its General Manager and its lower ranking supervisors, began to dis- cuss with employees the subjects of plant closing and lay- 12 N L R B v G,ssel Packing Co, Inc, 395 U S 575, 618 (1969) offs, a prospect totally at odds with the fact that the Re- spondent had finally achieved profitability in Hamilton af- ter almost 3 years of losing money Moreover, statements during the campaign by Plant Manager McLeod linked unionization with cancellation of orders by customers in a cause-and-effect relationship, a claim which was chal- lenged on the spot during a discussion of the subject by one of McLeod's employees and which he admitted during his testimony in this case has no basis in fact The Respon- dent has no definite plans to close the Hamilton plant and no specific plans for layoff of rank-and-file personnel, so any suggestions to employees along these lines, tying these prospects to the UAW's organizational campaign, were neither precise, demonstrably probable, nor founded on the basis of objective fact As such, they fail to comply with the Gissel guideline for a proper prediction of conse- quences in the face of unionization Thus, it is clear that various written and oral statements of the Respondent made shortly before the May 30 elec- tion fall flatly into the category of threats of impending retaliation against Hamilton employees should they select the UAW as their bargaining agent The context of oral descriptions and pictorial representations by the Respon- dent describing the UAW's asserted history as a bargaining agent leaves no prudent doubt as to a cause-and-effect re- lationship which it wished to implant in the minds of voters between unionization and dire results which would follow therefrom at the hand of the Respondent McLeod told community and business leaders at a meeting in his home that Federal-Mogul had closed its Detroit plants largely because of the UAW, and it is clear that he desired that this message be spread by his guests to his employees He also told them that it would be difficult for the Hamilton plant to achieve stability necessary for a long-term opera- tion in the event of a UAW victory, a statement leaving the clear implication that the Respondent would do in Hamil- ton what it did in Detroit if its plant became organized McLeod's statement to employees during the course of his small group conference in mid-May falsely linked cancella- tion of customer orders (and hence layoffs) to uni oniza- tion It was coupled with a further statement showing the disposition of the Respondent to avoid layoffs, even in the face of an economic pinch, in a nonunion plant but a cor- responding indifference to the question of economic lay- offs when dealing with unionized employees McLeod's statement at the 25th-hour talk attended by Harkness-that there would be no layoffs as long as the plant remained nonunion-leaves nothing to the imagina- tion and is clearly coercive The same holds true for Mc- Leod's statement at the gathering attended by Norris, and the statement made by Farris to Edgar on the morning of the election when he urged Edgar to vote "no " The net effect of these statements was to convey a threat of reprisal for unionization McLeod's further statement that "if the UAW had been there, this plant would not be here," taken together with other statements relating to the UAW's role in allegedly forcing Federal-Mogul and Hoover Ball and Bearing out of the Detroit area, unmistakably convey the thought that if the UAW gets in here, Federal-Mogul will not be here Such a statement is likewise beyond the pale of permissible electioneering The same rationale applies to FEDERAL-MOGUL CORPORATION 335 his statement concerning why Allis-Chalmers went out of the pad-mounted transformer business The Respondent also conveyed a threat of reprisal in a preelection leaflet portraying closed plants resulting from support of UAW activities The thought contained on this leaflet must be considered together with other messages being conveyed by Respondent's principal spokesmen dur- ing this same period of time This martfully coded message is simply that the Respondent would close the plant in Hamilton if the Union won The same rationale applies to the Respondent's question-and-answer booklet, which states that with a union an economic pinch would bring about a layoff according to seniority, while the absence of a union would, as in the weeks before the election, prompt the employer to follow a policy of no layoffs at all It also applies to a question gratuitously asked and answered through a company pamphlet, namely, that the UAW could not guarantee that Federal-Mogul would keep oper- ating at Hamilton The implication involved in such a question is that a UAW victory would leave the continued operation of the plant shrouded in doubt The fact that the Respondent avoided stating this threat categorically in no way detracts from the message it intended to convey and what in fact it gave its employees to understand The state- ment was unambiguous, points to no demonstrably proba- ble consequences beyond the employer's control, and, tak- en together with other remarks made by McLeod during the same period, leaves economic necessity as merely one factor to be weighed by this employer in reaching a deci- sion to close its plant Why layoffs in other Federal-Mogul plants had any bearing on actual or possible decisions relating to the Hamilton plant has never been explained The introduc- tion of this subject into the campaign at a point in time when the Hamilton plant was just beginning to achieve profitability indicates a desire to use layoffs elsewhere as an intimidating device rather than an elucidation of rationally based and factually founded economic factors bearing upon the choice at hand in Hamilton Accordingly, I con- clude that such remarks by Farris and McLeod and the literature referred to above constitute violations of Section 8(a)(1) of the Act As these expressions of company policy and intention emanated from the highest company authori- ties in Hamilton and were circulated throughout the bar- gaining unit in speeches and literature, such statements were clearly objectionable to the conduct of a fair and free election and obviously affected the results thereof General Electric Corporation, 215 NLRB 520 (1974) I do not believe that Thomas' statement to Inmon that the Company would close the plant down before it would give employees a $1-an-hour raise is a threat of reprisal for supporting the Union's organizational drive There is no solid proof that a $1-an-hour raise was or is an element of the UAW's campaign platform or that the UAW had any intention of making such a demand The statement is not only one of opinion on the part of Thomas but is an opin- ion directed to a highly remote and conjectural bargaining impasse wholly unrelated to the consequences which might ensue from selecting the UAW as a bargaining representa- tive The thrust of Thomas' statement, as well as Steagall's statement on this point to Inmon and McCarley, is that such a bargaining demand was wholly impractical and not susceptible of fulfillment The credited version of Bell's statement to Palmer and the Heat Treat Department employees that the Depart- ment was overstaffed and that a union victory would result in a layoff but, if the Union lost, the Company would try in every way possible to avoid such a layoff, is a clear expres- sion by a lower ranking supervisor of what McLeod was trying to say in somewhat more cloudy fashion As such, it is a violation of Section 8(a)(1) of the Act and is objection- able to the conduct at a fair and free election The day before the election, Aluia told Inmon, in re- sponse to Inmon's question, that the Company would close the plant down if they had to if the Union came in I con- clude that this statement was coercive, and a violation of Section 8(a)(1) of the Act It is also objectionable conduct Bowlby's statement to Emerson just before the election of March 7-that Emerson would not be around after the election to discuss union-related matters with Bowlby-not only bears upon the propriety of the March 24 discharge but also constitutes a promise of reprisal, in violation of Section 8(a)(l) of the Act As such, it amounts to objec- tionable conduct 2 Coercive interrogation The record is replete with instances of interrogation by company officials and supervisors inquiring into the union sentiments and activities of a large number of bargaining unit employees Respondent seeks to excuse these interro- gations on the basis that they were casual in nature or that, because of the context in which they occurred, the ques- tions did not sufficiently probe into the psyches of the questioned employees to be coercive in nature Neither point is well taken There was nothing casual about the questioning of Respondent's employees by its supervisors Respondent's management met at frequent intervals during the last weeks of the campaign before the May 30 election to plan strategy and to assess its position A recurring subject at these meetings was an evaluation of union strength in the various departments of the plant On occasion the names of union-oriented employees were brought up and dis- cussed Such information could come into the Respondent's possession only by repeated and systematic questioning of employees throughout the plant, and this is just what occurred Questions posed to individual employ- ees and recounted in this record were merely part and par- cel of an overall effort designed to further the Respondent's campaign strategy They were not casual, offhand, or isolated discussions by company foremen with old friends who happened to be working for them More- over, such discussions took place against a background, outlined above, in which a barrage of coercive propaganda, both oral and written, flooded in on bargaining unit em- ployees urging them to reject the UAW Furthermore, a question frequently asked-what I can do or say to change your mind-is more than a mere request for information It amounts to a solicitation of grievances and carries with it a hint that the Respondent was willing and able to trade off some unstated quid pro quo in exchange for a "no" vote 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, I find that the following interrogations constitute a violation of Section 8(a)(1) and are objection- able conduct affecting the result of the election a Thomas' questions to Inmon as to why employees were for the Union, what the Company had done to turn employees against it, and what the Union could do for employees in general and Inmon in particular b Stegall's question to McCarley, in Inmon's presence, as to why employees supported the Union, and what they expected to gain from a union victory c Aluia's question to Inmon as to what he expected to gain from supporting the Union and what the Company had done to turn him against it d Anglin's question to Inmon and Cantrelle as to what they expected to gain from unionization e Chambhss' repeated questions to Harkness, who was wearing a union button, if his heart was in the right place The questions were hardly designed to elicit an informa- tional reply Since they were asked repeatedly during a short period of time preceding the election, I conclude that, by virtue of the repetition, they amounted to a form of coercion f Meyers' quesion to Norris as to what he thought about the Union g Norton's question to Palmer, a known union sym- pathizer, if he had changed his mind about the way he was going to vote and if there was anything that Norton could do to change Palmer's mind h Norton's question on another occasion to Palmer as to how he now felt about the Union and how he thought he would be better off with a union i Mixon's statement to Eads and Vickory as to why they were displaying union buttons, what the Union could do for them the Company could not, and why these employees were "mad" at the Company J Questions by Miller and Bellew to Eads and Vickory as to why they were wearing union buttons k Kenneth Hammitte's question to Eads and Vickory as to why they were not wearing "I care" buttons, an anti- union insignia distributed by the Respondent to employ- ees 1 Flatt's question to Gann as to what the "Vote Yes" pencil clip on Gann's pocket meant, and how supporting the Union would be beneficial to Gann in Bowlby's question to Roberts as to what the Union could do for him that the Company could not n Todd's question to Emerson dust before the March 7 election if he had changed his mind about the Union and why he supported the Union o Darrell Smith's question to Walker during a late night interview on the subject of the Union in company confer- ence room as to whether he thought there would be a strike 3 Surveillance, creating the impression of surveillance, and miscellaneous interference with Section 7 rights At the meeting with Steagall and Thomas which Inmon requested, the ostensible subject of the discussion was Inmon's request that his brother be hired However, the discussion moved on to questions of unionization, in the course of which Steagall mentioned to Inmon and his asso- ciate, McCarley, that he had heard reports about what an- other employee, B C Allen, had said or done at a union meeting Specifically, Steagall mentioned hearing report that Allen said he would close the plant down and had banged his fist on a table for emphasis Inmon was called upon to disavow what Allen had said or done Such state- ments on Steagall's part conveyed to McCarley and Inmon that the discussions which took place at union meetings were under surveillance by the Company By thus creating the impression of surveillance of union activities, the Re- spondent herein violated Section 8(a)(1) of the Act and engaged in objectionable conduct On another occasion, Bowlby reached into Emerson's toolbox, which was Emerson's private property, removed a piece of union literature from the box, and burned it in Emerson's presence, all the while expressing his disdain for the Union Such action constitutes interference with pro- tected activity, namely, the private possession by an em- ployee of union literature, and as such violates Section 8(a)(1) of the Act These acts and conduct by Respondent's agents also interfered with the holding of a fair and free election 4 Promises of benefits and threats of loss of benefits In addition to the threats recounted above on the part of various company officials to lay off employees or to close the plant, the Respondent herein engaged in other activi- ties which amounted to an invasion of Section 7 rights As such, they also amount to objectionable conduct They are a The dissemination of a piece of campaign literature in which the Company stated that, if the Union won, the Union would become an employee's sole spokesman in grievance matters and, in effect, that an employee would lose the right to present his grievance directly to manage- ment representatives This is a misstatement of law and is also a threat on the part of the Respondent to discontinue an existing benefit in the event of a union election victory As such, it violates Section 8(a)(1) of the Act and is objec- tionable conduct General Electric Company (Wiring De- vices), 182 NLRB 876 (1970) b McLeod's statement to employees during his small group conferences in mid-May that, without the hostile UAW disrupting this plant, "you have a better chance to move forward on wages " c Anglin's statement to Inmon and Cantrelle in the con- text of a discussion of wage increases that things "will get better as the union activity gets out " d Gervais' statement to Lindsay that if the Union came in employees could no longer take their grievances directly to their foremen but would have to let the Union handle it 5 Objectionable conduct In addition to the evidence presented by the General Counsel in support of the complaint, the Charging Party introduced additional testimony to support its objections to the conduct of the election and its request that the May 30 election be set aside These incidents include an effort on the part of the Respondent to enlist community leaders FEDERAL-MOGUL CORPORATION to assist it in resisting the UAW's organizing drive and an interview between local political leader Rankin Fite and unit employee Norris, in which Fite urged Harris to vote "no " They also include other interviews recited above in the discussion on unfair labor practices In light of the findings and conclusions directed to other matters relating to the Respondent's preelection conduct, as well as the dis- cussion set forth infra concerning the discharge of Edsel Emerson, it is unnecessary to determine whether these inci- dents also constitute conduct which would warrant the set- ting aside of the May 30 election, so I decline to pass upon them 6 The discharge of Edsel Emerson The legality of the discharge of Edsel Emerson on March 24 must be evaluated in the light of Respondent's proffered reason that Emerson was discharged for chronic absentee- ism and for his failure to produce documentation in the form of a doctor's excuse which would justify his absence from work on March 20 There can be little doubt of Emerson's record of absenteeism, a record which reaches back to the commencement of his employment with Feder- al-Mogul For this admitted deficiency, he had already un- dergone the first three steps in the Respondent's ad hoc disciplinary procedure-oral warning, written warning, and a 3-day suspension late in September 1975 After re- ceiving a third-step suspension called for by the discipli- nary system, Emerson was absent from his employment on some 16 additional days Seven of these absences were unexcused, nine were excused In light of Emerson's record of continuing absenteeism, even in the face of previous disciplinary action, the question arises as to why the Re- spondent continued to tolerate such behavior in the fash- ion indicated for a period of 6 months after his suspension, if in fact absenteeism was the motivating cause of Emerson's removal 13 Emerson was a known union adherent, dating from the drive for union representation commenced by the IAM late in 1973 According to Respondent's witnesses, Emerson support for union causes waned in the fall and winter of 1974-75 until just before the March 7 election when once again he began to "get verbal" on behalf of union represen- tation In the course of a brief discussion of unionism which took place just before the first 1975 election, Bowlby let Emerson know in clear and menacing terms that he would not be around for long after the election This omen in and of itself served to indicate that, whatever cause for discharge the Respondent might hereafter advance, it would be pretextual since Respondent had already made up its mind to get rid of Emerson even before the events relied on to justify its action actually took place Emerson's absence on March 20 was the event which the Respondent seized upon to rid itself of a longtime union adherent who had recently "gotten verbal " On the previ- ous day, Emerson's son had taken sick at school The Re- spondent knew this illness to be a fact, since it was the 13 Respondent contends that, in determining what constitutes chronic ab- senteeism as a factor warranting discipline, it includes in this evaluation both excused and unexcused absences 337 Respondent who first informed Emerson of the occurrence and had given him permission to leave the plant in order to take the boy home Respondent's management also had no reason to doubt that the younger Emerson remained ill and admitted as much at the hearing It also admitted that missing work to care for a sick child is a legitimate reason for an employee's absence and one which would normally be honored Indeed, Respondent does not claim that it was Emerson's absence to attend to a member of his family which prompted the decision to fire him Rather it was Emerson's inability to substantiate his absence by a doctor's excuse which sealed his fate Respondent does not have a regular or inflexible rule or practice of requiring the presentation of written medical excuses before it will deem an absence for illness to be excused In the case of short absences by employees with good attendance records, Respondent will simply take the employee's word that he was too sick to report for work In Emerson's case, the Respondent has looked with greater scrutiny at his reasons for missing work and normally was more stringent in requiring him to produce written excuses because of his propensity toward absenteeism However, Respondent was willing to look the other way on Septem- ber 30, November 9, December 26, 27, and 28, and January 11 when Emerson failed to produce a justifiable reason to excuse his absence However, on March 20, Respondent was not so disposed, despite the lack of prudent doubt on its part that Emerson's son was in fact sick on this occa- sion According to credited testimony, Emerson was unable to produce a doctor's excuse for his March 20 absence be- cause in fact he had not taken his son to see a doctor and this is what he told Meyers In the face of Meyers' demand on March 21 that he produce a medical excuse or be fired, Emerson's only alternative was to purchase a phony excuse from a physician, not an unheard of practice at the Respondent's plant but one which could serve no purpose in satisfying the Respondent as to the bona fide nature of Emerson's absence At the same time, the election of this fradulent alternative could only compound Emerson's pre- dicament, in light of his admission to Meyers and others that he had not in fact taken his son to see a doctor on the day he missed work Any medical excuse proffered after such an admission would clearly be fictitious and would be ample reason for discharge under any circumstances In demanding such a document from Emerson as the predi- cate for his retention, the Respondent was demanding what Emerson could not legitimately or honorably pro- duce Accordingly, Respondent's insistence in this regard simply confirmed the pretextual nature of the whole series of events surrounding Emerson's termination In short, the Emerson discharge presents a case in which a strongly animated antiunion employer tolerated the ab- senteeism of a known union adherent so long as he re- mained relatively inactive, because when he did show up for work Emerson turned in a creditable performance in the semiskilled position of setup man at a factory where skilled employees are still in relatively short supply How- ever, once Emerson's views propelled him toward more vo- cal and vigorous union support, the Respondent de- termined to remove him on the next occasion that his 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD major shortcoming, absenteeism, provided it with an op- portunity and a cover story Accordingly, I find that, by discharging Edsel Dewayde Emerson on March 24, the Re- spondent herein violated Section 8(a)(3) of the Act, and also engaged in objectionable conduct which affected the result of the May 30 election 7 The suspension of Gary Roberts In the context of employment at the Hamilton plant, Gary Roberts was a relatively long term employee, having worked for the Respondent for 2-1/2 years His suspension on July 24 for a period of 3 working days was effected for poor job performance, an amorphous term which covered a host of asserted shortcomings ranging from overstaying a coffeebreak to failing to remove a cleaning agent from the floor around a machine 14 During the first 2 years of his employment, Roberts was the subject of only one unfavor- able notation in his foreman's informal personnel file, an entry indicating that on January 20 he had overstayed a coffeebreak In the slightly more than 2 months which elapsed from May 9 until the disciplinary interview on July 10, Roberts was written up by Bowlby 11 times During the 2 weeks which elapsed between July 10 and his suspension July 24, Roberts was written up by Bowlby for seven defi- ciencies occurring on six different workdays Roberts, a known union activist, was an almost entirely satisfactory employee until shortly before the second election, when, in Bowlby's view, he completely fell apart This fact alone warrants regarding the criticisms noted in his file with con- siderable suspicion I credit Roberts' self-evaluation to the effect that his job performance during this period of time and thereafter was no better or worse than it was before a rash of critical comments were made the subject of official notations Bowlby could advance no reason which would account for a sudden and serious lapse in the diligence and dedication in Roberts' job performance, and I conclude that no such lapse occurred What did occur just before Roberts was given the second step of the disciplinary procedure was that Roberts had given a statement to Board Agent Howard in support of the Union's objections and had spoken up at a staff meet- ing to let Bowlby know that he had done so Thereafter, the groundwork was laid for his termination A disciplinary interview took place, followed by a studied effort on Bowlby's part to make a written record which would sup- port a further personnel action against him The action contemplated by the Respondent on July 10, when the ex- istence of these 12 notations was first brought to Roberts' attention, was discharge Between July 10 and 24, the Re- 14 One of these incidents-and perhaps the most serious-involved a re- quest by Roberts, just before election, for time off one afternoon so he could plant some crops Bowlby denied the request because another employee had been given the afternoon off for the same reason and Bowlby was short- handed Roberts told Bowlby that if he did not get the time off he would take it anyway Bowlby told Roberts that, if he left without permission he would be fired, so Roberts reconsidered his statement and stayed at work In the course of this argument, Roberts told Bowlby that when the Union came in, things would improve so that employees would be able to get time off This incident was not deemed to be of sufficient importance to warrant further disciplinary action spondent received service of a second unfair labor practice charge filed in Emerson's case and thereupon adjusted its personnel procedures to be in a position to deal with Rob- erts in a less stringent manner than it had originally con- templated 15 The seven instances relied on by the Respondent as the triggering events which assertedly motivated Roberts' 3- day suspension were trivial and inconsequential matters In some instance, Roberts was seen by Bowlby talking with other employees in the plant Respondent has no rule or practice forbidding or restricting such actions However, Roberts, who was under surveillance during this period of time, was cited for deficiencies in his job performance be- cause of these conversations while other parties to the con- versations were not similarly charged Precise times were entered by Bowlby relating to certain deficiencies noted, indicating that Bowlby was making a special effort to ob- serve (and in some instances to time) Roberts during this period, as well as a studied attempt to find sufficient fault to warrant the taking of an adverse personnel action when the 2-week "probation" period was over Moreover, some of Bowlby's notations were made in lengthy and argumen- tative fashion, indicating a desire on Bowlby's part to make a case against Roberts rather than merely to record an event Respondent's demonstrated ammus, its knowledge of Roberts' union sympathies, the fact that Roberts' perfor- mance was largely acceptable to the Respondent until dust before the May 30 election, the inauguration of the suspen- sion effort immediately after Roberts had evidenced his cooperation with the investigation of the Union's objec- tions to the May 30 election, and the trivial nature of the July 10-24 deficiencies relied on to justify a suspension, all indicate that the excuse was pretextual and that the suspen- sion which resulted therefrom was discrimination in hire or tenure designed to discourage union membership and ac- tivities in violation of Section 8(a)(3) of the Act I so find and conclude Upon the foregoing findings of fact, and upon the entire record herein considered as a whole, I make the following CONCLUSIONS OF LAW 1 Respondent Federal-Mogul Corporation is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America, UAW, is 15 The original unfair labor practice charge filed by the Charging Party herein against the Respondent was dismissed by the Regional Director As the 10(b) period had not run on July 14 the Charging Party refiled the charge as a new case after which time the Regional Director saw fit to issue the complaint in the instant case alleging that Emerson was discriminatorily removed from employment Respondent asks that I accord some weight to the action of the Regional Director in dismissing the first charge in Emerson s case in evaluating the merits of this case If I did so in order to be consistent I would be obliged to accord equal weight to the fact that the Regional Director thereafter issued a complaint The countervailing weight of both actions would cancel each other out in weighing the merits and demerits of the Emerson discharge Instead, I elect to accord no probative value to either action of the Regional Director and limit my evaluation of Emerson s case to the facts in the record and the argument of counsel FEDERAL-MOGUL CORPORATION a labor organization within the meaning of Section 2(5) of the Act 3 By coercively interrogating employees concerning their union sympathies and activities, by engaging in sur- veillance of union activities and by creating in the minds of employees the impression that it was engaging in surveil- lance of union activities, by destroying union literature which was the private property and in the private posses- sion of an employee, by threatening to close the plant and to lay off employees if they selected the Union as their bargaining agent, by promising better wages if the Union lost the election, and by threatening to discontinue existing benefits if the Union won the election, the Respondent herein violated Section 8(a)(1) of the Act 4 By discharging Edsel D Emerson and by suspending Gary Roberts from employment in order to discourage membership in and support of International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America, UAW, the Respondent violated Sec- tion 8(a)(3) of the Act 5 The unfair labor practices recited above in Conclu- sions of Law 3 and 4 have a close, intimate, and substantial effect on the free flow of commerce within the meaning of Section 2(6) and (7) of the Act 6 By the unfair labor practices recited above in Conclu- sion of Law 3 and by the discharge of Edsel D Emerson, as set forth above in Conclusion of Law 4, the Respondent also interfered with the freedom of choice of its employees in their selection of a bargaining representative at the rep- resentation election which was conducted on May 30, 1975 REMEDY Having found that the Respondent has committed cer- tain unfair labor practices, I will recommend that it be ordered to cease and desist therefrom and that it be re- quired to take other actions designed to effectuate the pur- poses and policies of the Act This Respondent is no stranger to the Board and its processes, and the unfair la- bor practices recited above are not the first which Federal- Mogul has been found to have committed 16 As the Respondent's illegal actions have been widespread, repeat- ed, and have included the discriminatory discharge of an employee, they go to the heart of the Act, so I will recom- mend the issuance of a so-called broad 8(a)(1) order de- signed to suppress any and all violations of that Section of the Act J C Penney Co, Inc (Store #1814), 172 NLRB 1279, fn 1 (1968), Adam and Eve Cosmetics, Inc, 218 NLRB 1317 (1975) The conduct of the Respondent found herein has also interfered with the free choice of a bargain- ing representative by its employees who voted in the repre- sentation election of May 30, 1975, so I will recommend that the results of that election be set aside and that Case 10-RC-10230 be severed from the complaint cases and re- 16 Federal Mogul Corporation, Coldwater Distribution Center Division 163 NLRB 927 ( 1967), enforcement denied 394 F 2d 915 (C A 6, 1968 ), Sterling Aluminum Company a Division of Federal A'ogul, 163 NLRB 302 (1967) enforcement in part 391 F 2d 713 (C A 8, 1960), Federal Mogul Division of the Federal Mogul Corporation 203 NLRB 1008 ( 1973), Federal Mogul Car potation 212 NLRB 950 (1974) 339 manded to the Director for Region 10 with instructions to conduct a third election at such time as free choice of a bargaining representative can be made through the vehicle of the Board's election processes I will also recommend that Edsel D Emerson be reinstated to his former or sub- stantially equivalent employment, and that he and Gary Roberts be made whole for any loss of pay which they have suffered by reason of the discrimination practiced against them, to be computed in accordance with the Woolworth formula, 17 with interest thereon at 6 percent per annum I will also recommend that critical notes, reports, and evalu- ations be removed from Gary Roberts' personnel file, in- cluding the formal file kept in the personnel office and the informal file maintained by his foreman I will also recom- mend the posting of the usual notice, requiring the Respon- dent to inform its employees of their rights and of the re- sults in this case Upon the foregoing findings of fact, conclusions of law, and upon the entire record in this proceeding, and pur- suant to Section 10(c) of the Act, I hereby issue the follow- ing recommended ORDER 18 Respondent Federal-Mogul Corporation, Hamilton, Al- abama, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Coercively interrogating employees concerning their union sentiments and activities (b) Threatening to close the plant or to lay off employ- ees if they should select the Union as their bargaining agent (c) Engaging in surveillance of union activities of em- ployees and creating in the minds of employees the impres- sion that it is engaging in surveillance of their union activi- ties (d) Promising employees benefits if they should reject union representation (e) Threatening to discontinue existing benefits if em- ployees should vote for union representation (f) Discriminating against employees in the hire or ten- ure of employment because they had joined or supported International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America, UAW, or any other labor organization (g) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act 2 Take the following affirmative action designed to ef- fectuate the purposes and policies of the Act (a) Offer to Edsel D Emerson full and immediate rein- statement to his former position or, in the event that said position no longer exists, to substantially equivalent em- ployment, without prejudice to his seniority or to other rights which he formerly enjoyed 17 F W Woolworth Company 90 NLRB 289 (1950) 18 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board the findings conclusions and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Make whole Edsel D Emerson and Gary Roberts for any loss of pay they have suffered by reason of the discriminations found herein, in the manner described above in the section entitled "Remedy " (c) Remove from all files maintained by the Respondent and its supervisors any notes, memoranda, or other writ- ings which adversely reflect upon the job performance of Gary Roberts and which were issued or placed therein be- tween May I and July 30, 1975 (d) Post at its Hamilton, Alabama, plant copies of the attached notice marked "Appendix " 19 Copies of said no- tice, on forms provided by the Regional Director for Re- gion 10, after being duly signed by a representative of the Respondent, shall be posted by the Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, mclud- 19 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board' shall read `Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board ing all places where notices to employees are customarily posted Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports and all other records neces- sary to analyze the amount of backpay due under the terms of this Order (f) Notify the Regional Director for Region 10, in writ- ing, within 20 days from the date of this Order, what steps it has taken to comply herewith IT IS FURTHER ORDERED that the objections filed in Case 10-RC-10230 to the election of May 30, 1975, be, and they hereby are, sustained and said election is hereby set aside, that said case be, and it hereby is, severed from Case 10- CA-11342 and Case 10-CA-11388 and remanded to the Director for Region 10, and that said Director is hereby directed to conduct a third election therein at such time as, in his judgment, a free and fair election can be held