Ford Motor Co.

National Labor Relations Board - Board Decisions

Feb 19, 1941

29 N.L.R.B. 873 (N.L.R.B. 1941)

In the Matter of FORD MOTOR COMPANY, A CORPORATION and UNITED
AUTOMOBILE WORKERS OF AMERICA, LOCAL No. 560, C. I. 0.
In the Matter of FORD MOTOR COMPANY, A CORPORATION and UNITED
AUTOMOBILE WORKERS OF AMERICA, LOCAL No. 560, C. I. 0.
Cases Nos. C-950 and R-938.-Decided February 19,1941 -
Jurisdiction : automobile assembling industry.
Unfair Labor Practices
In General: respondent liable in connection with refusal to bargain, for acts of
one who represented himself as an agent of and spoke on behalf of the re-
spondent
Interference, Restraint and Coercion: agitation against charging union engaged
in by supervisory employees in order to subvert union's influence in the plant ;
sponsorship of "inside union" by supervisory employees; publication and dis-
tribution of pamphlets-and leaflets containing statements disparaging to labor
organizations.
Discriniination: failure to reinstate persons laid off ; failure to retransfer an
employee back to his former position ; charges of, dismissed as to certain
employees.
Collective Bargaininq: majority established by lists compiled from union mem-
bership cards and financial records-failure to bargain in good faith: refusal
to accord union recognition ; refusal to meet with non-employee representa-
tives ; refusal to enter into an agreement with the union.
Remedial Orders : respondent ordered to bargain collectively and to embody
understandings reached in a signed agreement; reinstatement ordered to all
employees discriminatorily-refused reinstatement except one who does not de-
sire reinstatement; employee who was discriminatorily refused a retransfer
to his former position ordered reinstated to his former position ; back pay,
computation of : lump sum distributed among those discriminatorily refused
reinstatement ; as to employees whose cases Trial Examiner dismissed, re-
imbursement not ordered for period from the date of Intermediate Report to
date of Order ; employee who did not desire reinstatement back pay awarded
between date of discrimination and the date of his testimony.
Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees including factory service employees, leaders and bushers, checkers, and
clerical employees employed in the production department or performing part-
time manual work, but excluding executives, assistant foremen, foremen, and
employees above them in a supervisory capacity, persons having the power to,
hire and discharge, and other clerical employees.
Practice and Procedure : petition dismissed in view of order to bargain
29 N. L. R. B , No. 134.
873
874 DECISIONS OF NATIONAL LABOR RELATIgNS BOARD
Mr. John P. Jennings, for the Board.
Williamson & Wallace, by Mr. W. Y. Williamson, Mr. William R.
Wallace, Jr., and Mr. William R. Ray, of San Francisco, Calif., Mr.
Louis J. Colombo, of Detroit, Mich., and Cravath, de Gersdorff,
Swain c Wood, by Mr. Frederick H. Wood and Mr. Alfred McCor-
mack, of New York City, for the respondent.
Gladstein, Grossman & Margolis, by Mr. Richard Gladstein, of
San Francisco, Calif., for the U. A. W.
Mr.-Wallace M. Cohen and Mr. Bertram Diamond, of counsel to
the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a charge and amended charges duly filed by United Auto-
mobile Workers of America, Local No. 560,1 herein called the
U. A. W., the National Labor Relations Board, herein called the
Board, by its Regional Director for the Twentieth Region (San
Francisco, California), issued its complaint, dated May 31, 1938,
against Ford Motor Compaiiy, a corporation, herein called the re-
spondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the
meaning 9f Section 8 (1), (3), and (5) of the National Labor Rela-
lions Act, 49 Stat. 449, herein called the Act. Copies of the coin-
plaint, accompanied by notice of hearing, were duly served upon the
respondent and the U. A. W.
The complaint alleged in substance . (1) that the respondent, at its
Richmond, California, plant, at numerous times since December 1936,
urged, persuaded, and warned its employees to refrain from becoming
,or remaining members of the U. A. W. and by various acts inter-
fered with, restrained, and coerced its employees from joining and
assisting the U. A. W., and from engaging in concerted activities
for the purpose of collective bargaining and other mutual aid and
protection; (2) that following a lay-off, the respondent in December
1937, and thereafter, discriminatorily failed and refused to recall
1 Prior to July 1937, the employees of Ford Motor Company at its Richmond , California,
plant were affiliated with United Automobile Workers of America, Local No. 76, which
had jurisdiction over practically all the Pacific coast. In July the Richmond employees
met apart from the larger organization . In October they voted to form their own local.
The charter for Local No. 560 was issued November 18, 1937. It is clear , and' we find,
that for the purposes of this proceeding Local No. 560 was the successor to Local No. 76.
In this Decision and Order , therefore , we treat them as a single organization , herein
referred to variously as U. A. W. or International Union , United Automobile Workers of
America, Local No. 560.
FORD MOTOR COMPANY 875
certain of its employees and demoted others to, less desirable and
less remunerative positions; (3) that 'the respondent failed and
refused to recall certain employees and demoted others because of
their union activities; (4) that on or before April 23, 1937, And at
all 'times thereafter, the U. A. W. represented a majority of the
respondent's employees in an appropriate unit; (5) that on or about
April 23, June 4, and December 7, 1937, and January 3, 1938, the
U. A. W. asked the respondent to bargain collectively with the
U. A. W. as the exclusive representative of all the employees in an
appropriate unit; (6) and that the respondent did then refuse and
at all times thereafter has refused to bargain with the U. A. W.
either as the exclusive representative of all the employees in an
appropriate unit or at all. On June 6, 1938, the respondent filed its
answer to the complaint, admitting that it sells to and does business
with dealers and other independent parties in every State of the
United States, and in almost every large city of the United States.
The respondent denied all other allegations of the complaint and,
moved for its dismissal.
On June 7, 1938, the U. A. W. filed a petition with the Regional
Director, alleging that a question affecting commerce had arisen con-
cerning the representation of employees of the Richmond plant of
the respondent, and requesting an investigation and certification of
representatives pursuant to Section 9 (c) of the, Act. Notices of
hearing were duly served upon the respondent, the U. A. W., and
International Association of Machinists, herein called the I. A. M.
On June 8, 1938, the Board, acting pursuant to Article III, Section
10 (c) (2), of National Labor Relations Board Rules and Regula-
tions-Series 1, as amended, ordered that the complaint and repre-
sentation cases be consolidated for the purpose, of hearing, and act-
ing pursuant to Section 9 (c) of the Act and Article III, Section 3,
of said Rules and Regulations, ordered an investigation in the repre-
sentation case and authorized the Regional Director to conduct it and
to provide for an appropriate hearing upon due notice.
The hearing opened in Richmond, California, on June 20, 1938,
before Thomas II. Kennedy, the Trial Examiner duly designated
by the Board. The hearing was closed on July 9, 1938.
The Board, the respondent, and the U. A. W. were represented by
counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues was afforded all parties. At the close
of the hearing opportunity for argument and to file briefs was
afforded all parties. The respondent filed a memorandum of
argument.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing, the respondent objected to the form of the petition
upon the ground that it did not state a sufficient description of the
appropriate bargaining unit in that the number of employees claimed
to be included therein was only approximated.2 The objection- was
overruled. During the hearing counsel for the Board moved to
amend the complaint to include the names of Edward J. Walcott
and Roy E. Brothers ' within the list of employees alleged to have
been discriminated against. The amendment was permitted by the
Trial Examiner. At the close of the Board's case and again at the
end of the hearing, the respondent moved to dismiss the complaint
and'petition for want of jurisdiction and failure of proof generally
and specifically. These motions were denied by the Trial Examiner.
At the hearing the Trial Examiner dismissed the complaint as to
E. Mills and James Thompson for want of proof. During the course
of the hearing the Trial Examiner made a number of other rulings
on motions and on objections to the admission of evidence. The
Board has reviewed the Trial Examiner's rulings and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
On September 8, 1938, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the parties, finding
that the respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8 (1), (3), and (5) and
Section 2 (6) and (7) of the Act, and recommending that the re-
spondent cease and desist therefrom and take certain affirmative
action. The Trial Examiner recommended that the complaint be
dismissed as to certain other employees named therein.
Thereafter, the respondent, having been granted several exten-
sions of time, filed its exceptions to the Intermediate Report and
to the record and moved anew to dismiss the complaint and peti-
tion. G. M: Khan and Albert E. Oakley, employees of the respond-
ent, filed exceptions to certain findings in the Intermediate Report.
Pursuant to notice, oral argument was'had on March 21, 1939, before
the Board in Washington, D. C. The, respondent was represented
by counsel, participated in the argument, and submitted a brief in
support of its exceptions to the Intermediate Report. The Board
has considered the respondent's memorandum of argument, brief, and
exceptions, and the exceptions of Khan and Oakley to the findings, con-
clusions, recommendations, and rulings of the Trial Examiner, but,
save for those exceptions which are consistent with the findings, con-
clusions, and order set forth below, finds them to be without merit.
Upon the entire record in the case, the. Board makes the following:
It is alleged in the petition that "The approximate number of employees employed
by the Company constituting the hereinafter described bargaining unit varies between 500
and 1750."
FORD MOTOR COMPANY 877
FINDINGS OF' FACT
1. THE BUSINESS OF THE RESPONDENT
The- respondent is a Delaware corporation. It is engaged pri-
lnarily in the manufacture, assembly, sale, and distribution of auto-
mobiles. ,Its manufacturing operations are performed in various
cities throughout the States of Michigan, Ohio, and Minnesota, and
in foreign countries. The manufactured parts are then shipped by
the respondent to its numerous assembly plants located in various
States, including one in Richmond, California. The respondent also
operates glass, factories, steel plants, coke ovens, railroad lines, steam-
ships, a paper mill, a foundry, a cement plant, and other similar
plants in connection with its automobile business.3
The plant in Richmond, California, is the only plant involved in
this proceeding. Manufactured parts are shipped from Dearborn,
Michigan, to Richmond where they are assembled into finished auto-
mobiles and distributed to dealers within the district supplied by
Richmond. This district embraces Northern California, Washing-
ton, Oregon, Nevada, Idaho, and the Hawaiian Islands. The re-
spondent also maintains at the Richmond plant a service stockti
department which supplies parts to dealers within the district.
The Richmond plant has a daily capacity of 350 cars and at the
peak of production employs approximately 1,800 persons. In 1936,
28,208 cars, valued at $16,967,112, and in 1937, 23,232 cars, valued
at $13,974,047, were delivered outside California by the Richmond
plant. The Richmond plant sold automobile parts amounting to
$4,569,526 in 1936 and $3,496,487 in 1937. Approximately 47 per cent
of the total sales of 1936 and 52 per cent in 1937 were made to points
outside California.
IT. THE ORGANIZATION INVOLVED
International Union, United Automobile Workers of America,
Local No. 560, is a labor organization affiliated ,with the Congress of
Industrial Organizations, admitting to membership all production
and maintenance employees of the respondent at its Richmond plant,
including employees in the assembly stock department and persons
engaged in semi-clerical work, but excluding clerical help, assistant
foremen, and persons above them in a supervisory position.
a The interstate and international character of the respondent's business is more fully
described in Matter of Ford Motor Co. and International Union, United Automobile
Workers of America, 14 N. L. R. B. 346, enf'd as mod., N. L. R. B. V. Ford Motor Co.,
114 F. (2d) 905 ' (C. C A. 6).
878 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
M. THE UNFAIR LABOR PRACTICES
A. Interference, restraint , and coercion
The U . A. W., began its organizational activity in the Richmond
plant in the latter part of 1936. Early in January 1937 U. A. W.
members were wearing their union buttons in the plant . By Febru-
ary the U. A . W. had chosen its shop stewards to bargain with the
management . The shop stewards wore white buttons; 2 inches in
diameter, bearing the words "Steward U. A. W." As the U. A. W.
activity in the plant became increasingly evident from the appear-
ance of - union and steward buttons among the employees, a wave
of hostility to the U. A. W. swept through the ranks of the respond-
ent's supervisory employees and manifested itself in a campaign of
intimidatory statements designed to discourage membership in the
U. A. W.
To subvert U. A. W.'influence in the plant , supervisory employees
engaged in anti-U. A. W. agitation. The respondent's records dis-
close, and we find, that L. A. Reid, stock superintendent , having
authority , over 202 employees , C. H. Johnson , general foreman,
having authority over 1,350 employees, R. S. Mattern, body fore-
man, having authority over 649 employees , F. H. Vivian , head of
the factory service department , having authority over 51 employees,
L. J. Layman , chief inspector , having authority over 29 employees,
Parley W. Dask, night general foreman, having authority over 300
employees, T. Ainsworth, chassis foreman , having authority over
272 employees, and John L. Litchfield, trim foreman, having author-
ity over 268 employees , were, in 1937 , supervisory employees of the
respondent. , The following statements to employees were attributed
to these supervisory employees : certain employees "were causing a
lot of trouble in the service stock department , they are in there
talking all the time about the union and one thing . and another";
"you are another one to join the union . . . I think you done some-
thing foolish"; "do you think it [the C. I. 0.] will ever do you any
good?"; "what do you think you are going to gain by joining the
union? "; "I think you are kind of foolish to join the union. You
will never get nowhere"; an employee "was doing the wrong thing
by joining the union"; "we can't have any union men in the factory
service"; "the union would never get nowhere here"; "Mr. Layman
was telling us about the union wasn't going to do us any good"; an
employee "had better not wear [his ] union button because those
fellows didn 't like the CIO, and the union men, and if [he ] could,
to refrain from wearing [his] button down there-would keep
trouble down"; ""that union you are in is nothing but a bunch of
reds" ; "there wasn 't going to be any unions in there, and that they
FORD MOTOR COMPANY 879
were going to have their own labor relations ' man" ; an employee
should "drop this Communist CIO group and join the company
union, or [he] wouldn't be hired back when they started production
of 1938 model" ; "you know . . . we don't need a union out at the
Ford plant"; "those [C. I. 0.] buttons,. . . wouldn't do us much
good, that one could just as well take them off"; and ` •` I see you
joined the union . ,.. you should never have done it." Although
Reid, Dask, and Ainsworth denied the statements attributed to them,
respectively, by employees Khan, Lutz, Cloinger, and Myhre, the
other above-named supervisory employees did not deny the state-
ments attributed to them, and the above -quoted testimony is credible
and corroborated by the other evidence in the record . We find that
Reid, Johnson, Mattern , Vivian, Layman, Dask, Ainsworth, and
Litchfield made in substance the statements set forth above.
R. H. Johnson , assistant foreman in the hood department, E.
Campbell , assistant foreman in the factory service department, W. W.
Creighton , head timekeeper ,4 C. C. Hunt, assistant foreman in the
loading department , J. J. McKnight , assistant foreman in the enamel
department , Earl Mathieson , assistant foreman in the cushion de-
partment , F. Willmer, assistant foreman in the body construction
department , P. J. McCarthy , assistant foreman of repairs in the
body repair department , and C. F. Baldwin and C. P. Holstein,
assistant foremen in ' the maintenance department , also made the fol-
lowing anti -union statements to employees : "it would do [no] good
if [the employee ] got in the union; it would hurt [him] more than
anything else" ; an employee should not wear his union button "be-
cause it would hurt [his] job"; "the damned union was causing all
the labor trouble in the plant"; an employee "was crazy for joining
the organization"; ",don't you think we can sit down and talk and
help the Ford Motor Company and break this Communist move-
ment in this plant -'altogether ?"; "I see you are one of Red Slaby's 5
boys now"; an employee was "the communist man" because of his
membership in the U. A. W.; "if you can turn down the C. I. O.
... you'll have a job just the same"; if an employee wanted to
work at the Ford plant , he "had better take that button and do
something with it"; "I seen a slip of paper and your number,is on
it and you - are on the spot 'for . . . activity in the union"; the
U. A. W. was "something that won't last very long. They can't go
along like this . Twelve men going there on the company 's time,
all going down to Mr. Harrison 's office to sit around and argue";
6 Creighton ' s job consisted in "checking the time cards against the foreman's time reports,
and making records for the Chief Clerk's office and for Dearborn."
5 Frank Slaby was instrumental in organizing the U A. W and was president of Local 76,
International Union, United Automobile Workers of America . Slaby did not have red
hair.
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"I see in the papers that all the men wearing union buttons are get-
ting cuts instead of raises"; and membership in the U. A. -W. was
"not going to get [an employee] any place."
Johnson, Campbell, Creighton, Hunt, McKnight, Mathieson, Will-
mer, McCarthy, Baldwin, and Holstein did not testify. The re-
spondent urges in its brief that these persons were only minor
supervisory employees whose positions were so subordinate as to
render it unnecessary "to refute or explain statements or other
activities 'attributed to them." We cannot agree with this conten-
tion. The respondent's assistant foremen perform- the work of ordi-
nary employees only during periods in which production is curtailed.
Ordinarily they do not work on production operations, as do pushers
and leaders. They are consulted by management in the selection of
persons to be employed. Furthermore, the record establishes that
persons having the positions of assistant foremen and above repre-
sented management among the respondent's employees. Creighton's
work as head timekeeper closely identified him with management.
These supervisory employees' statements were in line with state-
ments and other acts of their superiors. Under the circumstances
disclosed by this record, the respondent is answerable for the above-
quoted statements of the supervisory employees named in this para-
graph.6 1,
Supervisory employees further discouraged membership in the
U. A. W. by sponsoring an "inside union" known as the A. E. A.
Thus, supervisory employees Dask, J. E. Farr, Creighton, Branden-
burg, and E. Campbell organized the A. E. A. on or about May 12,
1937. Thereafter, memberships in the A. E. A. were solicited by
'supervisory employees C. Muzzi, H. Brandenburg, W. W. Creighton,
J. E. Farr, E. Campbell, H. L. Campbell, and C. C. Hunt.
O Matter of American' Manufacturing Company, etc and Textile Workers ' Organizing
Committee, 5 N L. R B . 443, mod. and enf'd in N. L R. B. v American Manufacturing
Company, 100 F. (2d) 61 (C. C. A. 2 ), aff'd as mod 309 U S 629 ; Matter of The Serrick
Corp and International Union, etc ., 8 N. L. R . B. 621, enf 'd in International Association
of Machinists v. N L R B, 110 F ( 2d) 29 (Aep. D " e), 311 U S ' 72; Matter of The
A. S. Abell Company and International Printing Pressmen's Union, 5 N L R B. 644, mod.
and enf 'd in N L. R. B. v . A. S Abell Co , 97 F. (2d ) 951 (C. C A. 4) ; Matter of Virginia
Ferry Corporation and International Seamen's Union, 8 N . L. R. B. 730, mod. and enf'd
in Virginia Ferry Corp . v. N. L. R. B, 101 F. (2d) 103 (C. C. A 4) ;' Matter of Consumers
Power Co and Local No. 740, United Electrical, Radio & Machine Workers of America,
9 N. L. R B 701, enf'd in Consumers Power Co . v N L R B, 113 F ( 2d) 38 (C. C. A. 6) ;
Matter of Ward Baking Company and Comm for Ind . Orq, 8 N L R B 558; Matter
of Tenn Copper Co and A. F. of-L. Fed Union , No 21164, 8 N L. R B 575, 9 N L. R B.
117; Matter of Calco-Chemical Co, Inc. and Chemical Workers Local No 269?3,'A F of L.,
12 N. L. R. B. 275; Matter of Ford Motor Co and International Union , United Automobile
Workers of America, 14 N. L . R B. 346 , enf'd as mod , N. L. R. B v. 'Ford Motor Co ,
114 F (2d) 905 (C C A 6) ; Matter of Ford Motor Con,pany and International Union, etc.,
23 N L R B 548; Matter of Foid Motor Company and United Automobile Workers of
America, etc, 23 N L R B 342, Matter of Ford Motor Company and International Union,
etc, 18 N L R B 167.
FORD MOTOR COMPANY 881
Although the respondent instructed its officials not to interfere
with union activity, it does not appear that such instructions were
communicated to the employees or that the respondent adopted any
vigorous remedial measures, clearly brought to the attention of the
employees, to remove the effect of the supervisory employees' coer-
cion.' Indeed, the respondent engaged in other acts of interference,
restraint, and coercion.
Thus' the respondent, in pursuit of its attempts to discredit the
U. A. W., published and distributed to employees pamphlets and
leaflets containing statements disparaging to labor organizations.
Among these publications were booklets entitled "Ford Almanac for
July 1937," and the reprints in pamphlet form of an article by
A. M. Smith, of .the North American Newspaper Alliance, entitled
"Ford Gives Viewpoint on Labor-Cautions Workers on Organiza-
tion." In April, May, and June, 1937, copies of both booklets were
passed to the respondent's employees at the gate inside the Richmond
plant. These pamphlets, together with other literature, "getting in
there quite regular," were distributed to the men by the factory serv-
ice employees, who were also the watchmen and policemen of the plant.
The "Almanac" is so flagrant in its denunciation and ridicule of
labor organizations as to leave no doubt that its distribution by
the respondent to'the employees was for the purpose of discouraging
membership in a labor organization. Certainly no "appeal to rea-
son" can be gleaned from the following excerpt from the "Almanac,"
entitled "Musings of Smoke-Stack Joe":
Shillberg-Ha Ha! I'll bet when he hears Ma's gone he'll
be over to the house tryin' to join me up to this labor racket.
None of That for Me, either. Why should I pay money to a
gang For Nothing? They can't give me a single thing More'n I
Already Got.
Never had to pay to work before-why start Now.
'Specially when they won't show me the books and let. me . see
what they do with My Money. '
If I Pay money for groceries, I Get Groceries in return. If
I pay money for a suit, I Get a Suit in return. Why should I
pay money for this crowd for Nothing?
And look who's asking-all these fellows who got their labor
movement education in' Russia . . . It all looks and smells
' Swift & Co. v . N. L. R. B ., 106 F . ( 2d) 87 (C. C A. 10), enf'g Matter of Swift &
Company, etc . and Local No 530, etc , 11 N L. R. B 809 ; H J. Heinz Company v. N L.
R. B, January 6, 1941 ( 311 U S . 514), aff 'g 110 F ( 2d) 843 (C. C A 6 ), enf'g as mod.
Matter of H J Heinz Company and Canning and Pickle Workers , etc., 10 N . L., R B. 963;
Matter of West Oregon Lumber Company and Lumber and Sawmill Workers Local Union
No. 3, etc, 20 N. L R B. 1.
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
like Communism to me ... They say they've got 260,000
members, each payin' them $1 a month right here in Detroit.
Golly, that's 24 hundred thousand-2 million, 4 hundred thou-
sand dollars a year. Ha-that's where all the big cars, airplanes,
swell offices, big salaries and all the rest of it comes from.
They don't Dare give the members a financial accounting.
If you ask for one you get Beaten.
Darned if I join a Racket Like That. -
Heighho-there's the whistle. Goin' home now. G'bye.
The following statements , called "Fordisms" and purporting to
emanate from Henry Ford, appeared in the reprint "Ford Gives
Viewpoint on Labor":
A Monopoly of Jobs in this country is just as bad as a
monopoly of Bread !
Our men ought to consider whether it is necessary for them
to Pay Some Outsider every month For the Privilege of Working
at -Ford's.
What was the result of these strikes-merely that numbers of
men put their necks into an Iron Collar. I'm only Trying to
Show Who Owns the Collar.
Figure it out for yourself. If you go into a union they have
Got You-but what have You Got?
We have always made a better bargain for our men than an
outsider Could. We have never had to bargain against our men
and we don't expect to begin now.
There is no mystery about the connection between Corporation
Control and Labor Control. They, are the Two Ends of the
Same Rope. A little group of those who Control Both Capital
and Labor will sit down in New York and settle Prices, Divi-
dends-and Wages. -
The respondent denies that its distribution of this literature con-
stitutes unfair labor practices within the meaning of the Act and
asserts such distribution is within the protection of the First Amend-
ment to the United States Constitution. We have considered and
rejected these and similar arguments in a number of cases.,' Thus in
the first cited Ford Motor Company case we stated the following :
Whether the words or actions of an employer constitute inter-
ference, restraint, or coercion; within the meaning of the Act,
must be judged, not as an abstract proposition, but in the light
Matter of Ford Motor Company and United Automobile Workers of America, etc, 23
N L R B 342; Matter of Ford Motor Company and International Union, etc., 23 N. L
R. B 548; Matter of Ford Motor Company and United Automobile Workers of America,
etc., 19 N L R . B 732; Matter of Ford Motor Company and International Union, etc,
14 N L R B 346, mod in this respect, N. L R B v Ford Motor Co , 114 F (2d) 905
(C. C A. 6) ; Matter of The Dow Chemical Company and United Mine Workers of America,
etc, 13 N L R. B, 993
FORD MOTOR COMPANY 883
of the economic realities of the employer-employee relationship.
It need hardly, be stressed that the dominant position of an
employer, who exercises the power of'economic life and death
over his employees, gives to an employer's statements, whether
or not ostensibly couched as argument or advice, an immediate
and compelling effect that they would not possess if addressed -
to economic equals. As the Circuit Court of Appeals for the
Seventh Circuit has said, "The voice of authority may .. .
provoke fear and awe quite as readily as it may bespeak fatherly
advice. The position of the employer . . . carries such weight
and influence that his words can be coercive when they would
not be so if the relations of master and servant did not
exist." g In the Virginia Railway case the Circuit Court of
Appeals for the Fourth Circuit made the same observation:
It must be remembered in this connection, however, that
any sort of influence exerted by an employer upon an em-
ployee, dependent upon his employment for means of liveli-
hood, may very easily become undue in that it will coerce the
employee's will in favor of what the employer desires against
his better judgment as to what is really in the best interest_
of himself and his fellow employees.10
Here the pamphlet was distributed to the respondent's employ-
ees on the respondent's property by persons in the respondent's
pay. It was circulated at the peak of the Union's organizing
campaign and at a time when the threatened discharge of the
union committee was fresh in the minds of the employees. In
the pamphlet the respondent expressed bitter opposition to labor
organizations. We think that the pamphlet made it clear to
the employees, not only that the respondent was uncompromis-
ingly hostile to the Union, but that the respondent might be
expected to take positive measures to make its opposition effec-
tive. Thus the caption on the outside of the pamphlet-"Ford
. Cautions Workers on Organization"-in itself reveals
that the document was intended not merely as an argument but
as a warning.- The further declaration that Ford had "never
had to bargain against our men"-that is, had never had to deal
with a union-and that "we don't expect to begin now," likewise
carries a threat that can hardly have been misunderstood. In
its entirety, and in the light of its source and its background,
the pamphlet could only be construed by the employees as a
plain warning that the respondent had no intention of accepting
9N L R. B v Fall, Corp., 102 F. (2d) 383 (C. C A 7), aff'd1308 U S 453.
10 Virginia Ry Co v. System Federation No 40, 84 F (2d) 641 (C C A 4), aff'd 300
U. S 515.
4]3002-42-vol. 20 57
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or tolerating the Union, and that the employees could expect to
achieve self-organization only by overpowering their employer
through economic action."
We find that the distribution of the pamphlet by the respond-,
ent to its employees was intended to have, and did have the
effect of interfering with, restraining, and coercing the respond-
ent's employees in the exercise of the right to self-organization
and collective bargaining.
The respondent contends in substance: (1) that in the cir-
culation of the pamphlet it was exercising the right - of free
speech guaranteed by the First Amendment to the Federal Con-
stitution, and (2) that the legislative history of Section 8 (1)
of the Act indicates that Congress purposely left employers free
to influence their employees in the exercise of the rights guaran-
teed in Section 7 as long as employers did not interfere with,
restrain, or coerce employees in the exercise of such right.
We have considered these defenses and, in the light of the
facts presented, find them to be without merit. The respond-
,ent's ,right to freedom of speech and of press does not sanction
its use of, speech or press as a means of employing its economic
superiority to interfere with, restrain , or coerce its employees in
the exercise of the rights guaranteed by the Act.12 By its dis-
triblition of the "Viewpoint on Labor" to the plant employees,
the respondent was not addressing or attempting to influence
the public at large; nor was the respondent addressing an argu-
ment to the intellect of its employees which they were free to
accept or reject without compulsion. The respondent was not
attempting to engage in the "free trade in ideas . . . in
the competition of the market." 13 On the contrary it was issu-
ing a stern warning that it was bitterly opposed to the Union
and that it would throw the weight of its economic power against
the efforts of its employees to form or carry on such an organi-
zation. The respondent's right so to interfere with, restrain,
and coerce its employees is not sanctioned by the First Amend-
ment.
"As a matter of fact, as we find hereinafter, within a short time after issuance of the
pamphlet , the respondent did undertake an active and open campaign to crush the Union,
through discriminatory discharges and similar repressive measures
12 See N. L. R. B. v. Falk Corporation , 102 F (2d) 383 (C. C A 7), aff'd in 308 U S. 453;
N L. R. B v. Cotton, 105 F. (2d) 179 (C. C. A. 6) ; N L R B v. Hopwood Returning Co.,
98 F. (2d ) 97 (C. C. A 2); Virginia Ferry Corp v. N L R B, 101 F (2d) 103 (C C. A
4) ; N L R B v Stackpole Carbon Co., 105 F. (2d) 167 (C C A 3), cert den 60 308 U. S
605;'N L R B V. Nebel Knitting Company, 103 F (2d) 594 (C C A 4) ; Republic
Steel Corporation v. N. L R. B, 107 F. (2d) 472 (C. C A. 3), cert. den April 8, 1940
L4 See Holmes J, dissenting in Abrams v. United States , 250 U. S 616, 624, 630 (1919).
Compare the language of the Court in Thornhill v. Alabama (- U S. -, decided April 22,
1940 ) : "Abridgment of the liberty of such discussion can be justified only where the clear
danger of substantive evils arises under circumstances affording no opportunity to test
the merits of ideas by competition for acceptance in the market of public opinion."
_ FORD MOTOR COMPANY 885,
As to the respondent's contention that the Act does not prohibit
an employer from influencing his employees, it is clear, for the
reasons already stated, that the respondent's- actions here con-
stitute not mere influence but interference, restraint and coercion
expressly forbidden by the Act.
In the light of the foregoing considerations, and upon the entire
record, which portrays the, systematic employment by- the re-
spondent of unfair labor practices directed against the Union, we
find that the respondent, by distributing to its employees "View-
point on Labor," has interfered with, restrained, and coerced its
employees in the exercise of their rights guaranteed in Section 7
of the Act.
We find that the respondent, by the above-mentioned statements of
supervisory employees, by the statements of Adams to the shop stew-
ards, of McMurray to Crail, and of Johnson to Vincent, set forth
below in Sections III B 1 and 2, by sponsorship of the A. E. A., and
by distribution to employees of the above-mentioned pamphlets,-in
connection with the other facts hereinabove and hereinbelow found,
interfered with, restrained, and coerced its employees in the exercise
of the right to self-organization, to form, join, or assist labor organ-
izations, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
collective bargaining and other mutual aid and protection as guaran-
teed in Section 7 of the Act.
B. The discriminatory refusals to reinstate -
On September.3, 1937, the plan shut down temporarily and many
employees were laid off. The respondent customarily notified laid-off
employees to return to work upon and after the reopening of the
plant. We find that the laid-off employees remained - employees
within the meaning of Section 2 (3) of the Act 14
On December 9, 1937, the plant reopened and the respondent gradu-
ally recalled laid-off employees until about January 3,'1938.
The plant actively employed about 1,343 persons prior to the shut-
down and about 700 persons on January 3, 1938. The amended com-
plaint alleges that the respondent's failure to reinstate persons laid
off was discriminatory as to 150 named employees. We-have divided
these 150 employees into 2 classes: (a) U. A. W. officers, shop stewards
and grievance committmen, and (b) the remaining employees. After
14 Waterman Steamship Corp. v. N. L R B, 309 U S. 206, rev'g 103 F. (2d) 157
(C. C. A. 5), eiif'g as mod., Matter of Waterman Steamship Corp. and National Maritime
Union of America, etc, 7 N. L. R B 237; North Whittier Heights Citrus Assn v. N. L.
R B., 109 F. (2d) 76 (C. C. A. 9), enf'g Matter of North Whittier Heights Citrus Assn
and Citrus Packing House Workers Union, Local No 21091, 10 N L R. B. 1269.
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dealing with some considerations relevant to both groups, we shall
discuss them separately.
The respondent attributes ,its failure to reinstate more employees
than it ,did to a reduction in business. The respondent, however,
caused the reduced operations at the Richmond plant, in part, by its
own act. During this period the respondent shipped into the Rich-
mond territory from other plants completely assembled cars in excess
of its customary shipments.15 The respondent admitted that its Rich-
mond, plant could assemble cars for delivery within the Richmond
territory more cheaply than other plants, yet it offered no explana-
tion for the excess shipments from other plants. The respondent's
unexplained transfer of production from the Richmond plant to other
plants against the background of the respondent's hostility to and
campaign against the U. A. W. indicates-that the respondent sought
to decrease its force at Richmond so that it could freeze out employees
engaging in U. A. W. activity.
The respondent asserts that it chose employees for reinstatement on
the basis of efficiency and that "everything being equal" seniority would
control. The particular defenses relied upon by the respondent con-
sisted for the most part of the testimony of foremen concerning the
ability and seniority of employees who had. been in their charge.
However, within the respondent's reinstatement system, foremen's
judgments were not necessarily decisive. At different times the fore-
men in each department submitted to R. F. Harrison, factory superin-
tendent, lists of men whom they wished recalled:' A number of the
employees whose cases are discussed below appeared on these lists.
Harrison checked the lists. They were then turned over to I. R.
McMurray, employment manager, who summoned the men from them.
But about 200 men who appeared on these lists were never called
to work, and,men were sometimes recalled in an order different from
that in which their names were submitted. The reasons for McMur-
ray's choice among those on the lists were not revealed. We have
weighed the foremen's testimony in the light of this procedure for
recalling employees. In evaluating such testimony we have also taken
into consideration the hostility of these foremen to the U. A. W., re-
vealed in their statements herein set forth.
1. U. A. W. officers, shop stewards, and grievance committemen
U. A. W. officers, shop stewards, and grievance committeemen all
wore large buttons to work, proclaiming their official capacities. They
1G In December of other years, it was customary to ship assembled cars into the Richmond
territory to meet the early needs of dealers The number shipped ranged from 25 , in
1931 to 587 in 1934. From November 22, 1937, to January 7, 1938, the respondent shipped
2,642 assembled cars into the Richmond territory.
FORD MOTOR COMPANY 887
conferred with plant officers on a number of occasions. The U. A: W.
made no attempt to conceal its activities.
As early as June 1937 Assistant Foreman F. Willmer sent one
Cloinger, an employee under his supervision, to Parley W. Dask, night
general foreman, Who advised him that a personnel officer would
supplant the U. A. W. shop stewards in grievance cases. On December
7, 1937, John Adams, hereinafter found to be a spokesman for the
respondent, announced that the shop-steward system would be elim-
inated. Upon the basis of the entire record we reject the denial of
I. R. McMurray, employment manager, and find that in the latter
part of December he informed D. Grail, a shop steward, that grievances
would thenceforth be handled through the personnel. office and warned
him that the management wanted no part of "this thing we had in
here last year." He clearly indicated to Crail that reinstatement was
conditional upon abandonment of the U. A. W. By the above state-
ments of Adams and McMurray, the respondent interfered with rights
guaranteed in Section 7 of the Act.
On September 3 the plant had 47 employees who were U. A. W.
shop stewards, and also, in many instances, officers or grievance,com-
mitteemen. Three were retained when the plant closed.16 Three were
recalled before January 3.17 The remaining 41, for more than 87
per cent, were never reinstated, although by January 3 plant employ-
ment totaled 700, or about 52 per cent of the number working on
September 3.
Many of these +U. A. W. officials had been in the respondent's con-
tinuous employment for years and had received promotions and in-
creases of pay."' The record contains no convincing evidence that they
were less efficient than the persons reinstated.
16 Williams , Casten, and Warner.
K Broadhurst , C. H. Smith , and Henry Tortovich.
ii For the most part , the officers , shop stewards , and grievance committeemen who are
listed in Appendix A had been continuously employed in the occupations from which they
were laid off for periods longer than the entire periods of employment of reinstated em-
ployees engaged in the same occupations . The respondent argues that length of service
on a given operation should determine seniority . The respondent , however, in its service
records, adduced in evidence , lists its employees according to the department in which they
work , for example , " the chassis department ," and according to their occupation within the
department , for example , "assembler ." There may be a number of operations performed
by various persons classified in the same occupation Employees of a given occupation are
often shifted from operation to operation , thus rendering it impractical for the respondent
to maintain seniority records on an operational basis. In fact, no such records, if they
existed, were offered in evidence by the respondent Furthermore , each employee witness
generally described his position by occupation and department and each management witness,
testifying with respect to employees , referred for the most part to their occupations and
departments , rather than to the operations performed by them. While the record is some-
what ambiguous with respect to the particular method used by the respondent for de-
termining seniority , we find it most consistent }with all the evidence and with the resolution
of reasonable doubts in the respondent 's favor to conclude that it determined the seniority
of its employees according to their continuous employment in an occupation within a
department . Since we lack such information concerning reinstated employees , we have
considered the date of their original hiring by the respondent as the determinant of their
seniority.
888 DECISIONS 0F'-NATIONAL LABOR- RELATIONS BOARD
The -wholesale elimination of U. A. W. stewards, in connection with
the respondent's plan to abolish the steward system, its hostility to
and campaign against the U. A. W., and the other facts in this record,
are sufficient to convince us of discrimination by the respondent against
any charging shop steward, unless the respondent has established as
to any such person that even had he occupied no such union office he
would not have been recalled, to its employment by about January 3,
1938.19
,Of these U. A. W. officers, stewards, and committeemen, the cases of
only four, Joseph Van Elsen, Alex S. Krotoff, Richard H. Howell, and
John Millovich, offer problems deserving special treatment by reason
of the respondent's attempts to explain its failure to recall them.
- Joseph Van Elsen was employed on May 7, 1931, as a sander in the
paint department. Thereafter, he was employed successively as a
body rubber, polisher, inspector, polisher, sprayer, polisher, inspector,
sander, and inspector in the paint department. As an inspector he
was attached to the inspection department. He received 10 wage in-
creases, 3 of which were for merit. He became a member of the U.'A.
W. on January 23, 1937, and was a shop steward and member of the
old and new 20 grievance committees. ' He attended approximately all
union meetings , wore the various union buttons in the plant, and
solicited U. A. W. memberships.
In January 1937 Parley- Dask, night general foreman, said to Van
Elsen: "Why did you, join the Union . . . It's going to do you
more harm than good." The first time that Chief Inspector Layman
saw Van Elsen with a union button he told Van Elsen that the Union
"would never get, anywhere." About June 1937, according to the
uncontradicted testimony ' of Roy Brothers, then chief inspector on
the night shift, he was asked by Dask and E. Campbell , assistant
foreman in the factory service department, to try to catch Van Elsen
out of his department. The three men watched Van Elsen through
the skylight. Dask told Brothers that they wanted him to fire Van
Elsen because he was "the strongest union man ... in the
house."
At the time of the lay-off Van Elsen was a final trim inspector,
whose duties consisted in the final inspection of the upholstery, paint,
and "body jobs" on a completed car. This type of work required
exceptional skill, entailing a knowledge of all the preceding body
operations. -
L. J. Layman, chief inspector, testified that Van Elsen was not
recalled because only one shift was operated after the reopening and
only one trim inspector was needed. An employee named Sangenito
10 See note 21, Infra.
20 The old grievance committee was elected in February 1937. The new grievance
committee came into being in July 1937.
FORD MOTOR COMPANY 889
was reinstated to this position. Layman claimed, that Sangenito
was recalled because Layman believed him more reliable than Van
Elsen, concerning whom Layman had several reports that he was
leaving his job to solicit and collect union dues. Sangenito had
seniority according to the method of computation set forth above.
On the other hand, Van Elsen had had a broad experience embrac-
ing the various positions enumerated. His work as an inspector
had been praised by Layman. His employment as an inspector was
some indication of his ability to perform a number of operations
in the paint department. His wage increases also indicated his
merit. We find that Van Elsen was not reinstated to fill an avail-
able position because of the respondent's intention to discriminate
against him because of his U. A. W. activity.
Alex S. Krotoff was first employed August 9, 1929, as assembler
in the chassis department. He continued in that position from
April 12, 1932, to about July 15, 1937, when he was transferred to
the brake set-up assembly in the chassis department. He received
three wage increases, one of which was not automatic. He joined
the U. A. W. in March 1937, was elected shop steward at the end
of April, wore his various union buttons, and solicited U. A. W.
memberships.
According to Ainsworth, Krotoff's foreman, Krotoff "had been on
different operations along the line, but not satisfactory." He claims
that he chose "Krotoff for only one operation, the brake set-up,"
,and that in rejecting Krotoff he picked "the best man for the job
who had been with the company the longest giving principal con-
sideration to ability." He admits, however, "Krotoff would have
been called in, for he was on one of the lists that I made up after
the hiring stopped in case the production would have been higher."
On this record, we do not believe that Krotoff was not able to fill
the position of assembler in the chassis department satisfactorily.
He had held this position for more than 5 years and Ainsworth did
not explain wherein he had been unsatisfactory.
Richard H. Howell was first employed on November 11, 1936, as
janitor in the maintenance department. He was transferred on De-
cember 1, 1936, to the chassis department as an assembler. He had
received 'one automatic pay increase and "was laid off on September
3, 1937. Howell applied for membership in the U. A. W. in December
1936, was elected shop steward, became a member of the grievance
committee in April 1937, and wore his various U. A. W. buttons.
Computing Howell's seniority as an assembler in the chassis depart-
ment from December 1, 1936, by determining the number of persons
who were reinstated in the same occupation but whose periods of
employment were less than Howell's last continuous period of em-
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployment, it appears that there were two reinstated persons who had
less seniority. Ainsworth testified that the operation which Howell
had performed had been combined with other operations and that
C. A. Dobbs, an employee who was hired a little over a month before
Howell's seniority date, was employed ih his place. Ainsworth
testified further, that Howell had performed other operations and
that although not "completely satisfactory" he would have been hired
in case of higher production. Ainsworth did not explain wherein he
was not "completely satisfactory" and, on this record, this unsupported
reflection on Howell's capacity is not credible.
John Millovich did not testify but his service records reveal that
he was employed on March 7, 1934, as assembler in the chassis de-
partment and continued in that capacity until his lay-off on September
3, 1937. He ,received four pay increases, all of which were automatic.
Computing his seniority from December 10, 1934, as an assembler in
the chassis department, by determining the number of persons whc,
were reinstated in the same occupation but whose periods of employ-
ment were less than that of. Millovich's last -continuous period of
employment, it appears that at least 27 persons reinstated as assemblers
in the chassis department had less seniority. Millovich was a U. A. W.
steward in the chassis department and was active in U. A. W. affairs.
-At the time of the hearing, Millovich was in the "North woods some-
where." The respondent moved to dismiss the complaint with refer-
ence to Millovich on the grounds that he was not available, that he
had gone out of the community, that there was no means of ascertaining
his whereabouts, that there was no indication that he would return,
and that it appeared that he had gone elsewhere to seek employment.
On the other hand, the respondent offered no evidence tending to show
that the respondent was prepared to offer reinstatement to Millovich, or
that it did not offer reinstatement to Millovich because of the grounds
upon which it now relies. On the contrary, the respondent's refusal
to reinstate the other stewards and officers of the U. A. W. serves to
establish the fact that further application to the respondent for
reinsatement would have been a useless gesture.
The wholesale elimination of U. A. W. officials, in connection with
the respondent's' plan to abolish the steward system, its hostility to
and campaign against the U. A. W., and the other facts in this record,
convince us, and we find, that the respondent failed to reinstate the
stewards, officers, and grievance committeemen, listed in Appendix
A, because of their membership and activity in the U. A. W., thereby
discouraging membership in the U. A. W., and interfering with,
restraining, and coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act.21
21 North Whittier Heights Citrus Ass'n v. N L. R. B., 109 F. ( 2d) 76 (C. C A. 9), enf'g
Matter of North Whtittier Heights Citrus 4ss'n, etc. and Citrus Packing House Workers
FORD MOTOR COMPANY 891
2. The remaining employees
The other charging employees were all members of the U. A. W. with
the exception of one who had only signed an application card and
paid part of his initiation fee.22 Many of these employees were en-
gaged in considerable union activity, picketed during strikes called
by the U. A. W., and solicited membership among the men. It was
customary for U. A. W. members to wear their buttons at work.
As detailed above, supervisory employees of the respondent made
it plain to the men that U. A. W. membership jeopardized their em-
ployment. Thus in May 1937 Night Superintendent Parley Dask told
Thomas Philpot, a charging employee, to "drop this Communist CIO
group and to join the company union, or [he] wouldn't be hired
back when they started production of 1938 model." When, late in
December 1937, Harry Vincent, a charging employee, telephoned Rus-
sel Johnson, assistant head foreman, concerning the respondent's fail-
ure to recall him, Johnson advised him to see Harrison or Bullwinkel,
"or some of the `big shots"' and to renounce the U. A. W. in return for
an opportunity to return to work. By the above statement of John-
son the respondent interfered with rights guaranteed in Section 7
of the Act.
Of the total of 1,343 employees in the plant on September 3, 943,
or about 70 percent, had designated the U. A. W.23 At the same
date 939, or about 75 percent of the 1,261 in the unit hereinafter found
appropriate, had- designated the U. A. W. On January 3 U. A. W.
affiliates actively employed numbered only 375, or about 54 percent
of the 700 persons then working in the plant, and only 369, or about
56 percent of the 657 then working in the appropriate unit: As a
result of the process of reinstatement following the September-lay-
off, while the number of non-union men decreased about 19 percent
in the plant as a whole and about 11 percent in the appropriate unit,
the number of union men in the corresponding groups declined about
60 percent and 61 percent, respectively.
The gross disparity between the proportion of union men in the
plant before and after the plant shut-down, and the respondent's
hostility to and campaign against the U. A. W., together with the
other facts in the record, are sufficient to convince us of discrimina-
tion by the respondent against any charging U. A. W. employee, unless
the respondent has established as to any such person that even had he
Union, etc , 10 N. L . R. 13.4269; Montgomery Ward & Co, Inc v N L R . B, 107 F. (2d)
555 (C C. A 7 ), mod. and enf 'g Matter of Montgomery Ward & Co . and Reuben L,tzen-
berger, et al, 9 N L R. B. 538; Matter of Ford Motor Co and United Automobile Workers
of America, etc, 23 N L. R B. 342.
22 G C. Pryor IIowe% er , he was, according to M. O 'Donnell, U . A. W. financial secretary
and treasurer , active in union affairs
23 See note 32, infra
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no affiliation with the U. A. W. he would not have been recalled to
its employment by about January 3, 1938.24
The cases of only 15 of the charging employees dealt with in this
section merit particular consideration by reason of the respondent's
attempts to explain its failure to recall them. We shall consider them
by department.
a. Assembly stock -
According to L. A. Reid, stock superintendent, he suggested for
reemployment practically all who had worked in his department in
August 1937. He was unable to state whether any charging em-
ployees, with the exception of those hereinafter mentioned, were not
'listed in the recommendations he had submitted.
Thomas Neuhauser, Cleo J. Riep, and Alfred Tressmer were laid
off as loaders in the assembly stock department. The last periods
of continuous employment of Neuhauser and Tressmer in that occupa-
tion date from October 14, 1935; Riep's dates from November 9, 1936.
Riep became a member of the-U. A. W. in March 1937. Tressmer
and Neuhauser joined in May 1937. Neuhauser and Riep were active
members.
Reid asserted that none of the charging employees who were loaders
were listed by him for ;recall because there was "no use for them
at'that time."
The record shows, however, that A. S. McDonald, Jr., a non-union
employee was reinstated to the occupation of loader in the assembly
stock department. Reid offered no reason for preferring McDonald to
Neuhauser, Riep, and Tressmer.
We find that the respondent discriminated against Thomas Neu-
hauser, Cleo J. Riep, and Alfred Tressmer.
Neil E. Jepsen and John Palassi 25 were first employed on January
11, 1929, and.March 15, 1933, respectively. Jepsen's last continuous
period of employment as a piler and a tool crib clerk dates from
May 18, 1936. Palassi's last continuous period of employment as an
unloader dates from July 22, 1935.
Jepsen joined the U. A. W. in April 1937, and Palassi did so in
May 1937. Both wore union buttons thereafter and took part in
U. A. W. activity.
Reid asserted that Palassi was not recalled because two employees
with more seniority were preferred to him. With regard to Jepsen
he maintained that some employees had been preferred to him because
of their. seniority, others because of their versatility.26
u See note 21, supra.
25 Also referred to as John Palazzi.
26 According to Reid, there were three or four of these employees and they were junior
to Jepsen . His method of computing seniority appears to have been more liberal than
the method adopted herein.
FORD MOTOR COMPANY 898,
The record shows that four non-union unloaders who were junior
to Palassi were reinstated, and that one non-union piler, two non-
union and two union tool crib clerks or tool crib employees were
reinstated.
Reid admitted that Jepsen and Palassi, while not on the first list
of those he had recommended for recall did appear on some later
lift, that reinstated employees junior to them were also not on the
first list; and that any choice between them and their juniors had
been made not by him but by the employment office.27 The basis for
the choice of the employment office was not advanced. In view of
the foregoing circumstances, and of the fact that practically all who
had been employed in the assembly stock department in -August 1937
were recommended for reinstatement, we conclude that Reid's ex-
planations do not satisfactorily account for the failure to recall Jepsen
and Palassi.
We find that the respondent discriminated against Neil E. Jepsen
and John Palassi.
John E. Hall commenced his employment with the respondent on
December 27, 1934, as a crane operator in the maintenance depart-
ment. His last continuous period of employment as a crane operator
in the assembly stock department dates from November 7, 1936.
He joined the U. A. W. in March 1937, and wore his union button
to work thereafter.
Reid asserted that Hall was not recalled because the respondent
needed only one crane operator, and a senior employee, B. Grass, had
been preferred to him.
The pay roll for January 3, 1938, lists as crane operators in the
assembly stock department not only B. Grass, but H. O. Clarine and
H. Bahnsen. All' three are non-union employees. On cross-examina-
tion Reid conceded that Bahnsen and Clarine operated cranes in Jan-
uary 1938, but indicated that they performed other work as well..
However, he further stated that both Grass and Hall had" formerly
done other work, presumably in the same department, when there was
nothing for the cranes to do. According to Hall's uncontradicted
testimony, he and Grass had been the only experienced crane opera-
tors in the plant. Reid's assertions, we conclude, do not adequately
explain why Clarine and Bahnsen were preferred to Hall.
We find that the respondent discriminated against John E. Hall.
G. M. Khan was first employed by the respondent as an unloader
in the assembly stock department on January 15, 1929. His last con-
tinuous period of employment dates from October 14, 1935. During
that time he was classified as a loader; he was engaged in carpentry
work, making wheel blocks used in the loading of automobiles.
a'' In fact Reid told Jepsen in January 1938 that Jepsen 's record was all right but that
reinstatement was out of his hands and up to McMurray.
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He joined the U . A. W. in April . 1937, wore his union button there-
after, solicited membership in the U. A. W., and engaged in other union
activity.
Reid advanced as the reasons for the failure to recall Khan the
small amount of loading that had to be done and the fact that the use
of the blocks made by Khan had been discontinued.
Khan had done, only carpentry work for the respondent . Lumber
salvage work 'in the assembly stock department comparable to what
Khan had been doing was performed after the December resumption
of operations by M. A. Williams, whose case is discussed below, and
T. Vincent , both U. A. W. members . Reid's reasons for the failure to
reinstate Khan appear satisfactory.
- We are of the opinion that the evidence does not warrant a finding
of discrimination against G. M. Khan.
John L. McKenna began to work for the respondent on January 17,
1935, as an assembler in the chassis department . His last continuous
period of employment as an unloader and then as an unloader and
piler in the assembly stock department , dates from February 1, 1937.
He had just previously been a watchman in the factory service depart-
ment, and an assembler in the body department . He was laid off on
August 27, 1937.
He joined the U. A. W. in April 1937 , wore his union button there-
after, and participated in the strike called by the U. A. W. in May 1937.
Reid asserted that it was doubtful whether McKenna had been listed
for recall because he had little service within the assembly stock de-
partment. He stated that McKenna had been placed there as a tem-
porary employee and had in fact been laid off before the completion
of the 1937 model.
McKenna is senior to none of employees who were reinstated to the
occupations from which he was laid off.
We find that the respondent did not discriminate against John L.
McKenna.
b. Chassis
Eugene D. Fry began to work for the respondent on December 22,
1934, as an assembler in the chassis department. From about Novem-
ber 1935 to the shut-down he was a spray man, and occasionally a wheel
sprayer, in the same department. His last continuous period of em-
ployment in that occupation dates from December 3, 1936. During
the course of his employment he received two automatic pay increases.
Fry joined the U. A. W. in April 1937. He served on at least two
U. A. W. committees during 1937, wore his union button at work, and
was otherwise active in union affairs.
T. 0. Ainsworth, foreman in the chassis department, attributed the
failure to recall Fry to his having the least seniority of all the em-
FORD MOTOR COMPANY 895
ployees- in the "wheel and radiator oven department." Ainsworth
asserted that not only were the employees who were reinstated to
positions similar to that held by Fry, senior to him, but that they
were superior in ability.
According to the method of computing seniority described above,
Fry is senior to no reinstated employee. Of the employees cited by
AinsWorth as senior and superior in ability to Fry, one was a U. A. W.
member and the other two had applied for membership in that
organization.
We find that there is insufficient evidence of discrimination against
Eugene Fry.
'Walter R. Husson, was hired by the respondent as an assembler in
the chassis department on August 25, 1939. His last period of\con-
tinuous employment as a frame assembler in the chassis department
dates from November 9, 1936.
He joined the U. A. W. in April 1937, wore his union button there-
after, solicited membership among the men and was otherwise active
in union affairs.
Foreman Ainsworth testified that he recalled one Henderson,
instead of Husson, because Henderson, whose seniority was equal to
Husson's, had far greater ability. He asserted that Henderson had
attended to his job, and that he had received reports that Husson at
times engaged in horse play. The record shows, however, that about
the time of Husson's lay-off Ainsworth assured him that he had done
good work during the year, and added, "when the plant reopens I,
want to see you back here again." It also appears that Husson is
senior to one Lewis, and equal in seniority to one Dillian, both of
whom were non-union employees, reinstated to the occupation from
which Husson was laid off. Ainsworth advanced no reasons for
preferring these employees to Husson.
We find that the respondent d-scriminated against Walter R.
Hussoil.
c. Factory service
Richard L. Guider entered the employment of the respondent on
May 6, 1931. His last continuous period of employment as a car
releaser 28 dates from December 1, 1936.
He became a member of the U. A. W. in May 1937. He served on
the picket line during the strike called by the U. A. W. in that same
month.
23 According to Guider's employment record he was classified as a rail car checker om
July 15, 1037, in conformity with his duties Guider subsumed his checking functions under
the classification of car releaser. While the record is not clear it is likely that car releaser
was his occupation and rail car checker his operation. Guider had formerly performed)
another operation within the same classification, that of driving cars from the plant to
the parking lot
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frank H. Vivian, head of the factory service department at the
time of the reinstatements, stated that he had recalled employees in his
department as increased production made it necessary. Guider, he
asserted, had been employed on the loading dock, and was not recalled
because "the loading dock never got started."
According to Guider's uncontradicted testimony, the production of
about 90 cars daily would require the services of at least 1 man engaged
in checking cars shipped by rail. In January the daily production of
the respondent went as high as 110 cars. The pay roll for January 3,
1938, discloses no employees classified as rail car checkers. It does
reveal, however, that six non-union employees were reinstated as car
releasers. Guider's ability on car releasing operations in which he
had been engaged was unquestioned. While he was a watchman and
did "driving out" as a car releaser he received an increase in wages
because, as his employment record stated, he was a "good'worker.",
We conclude that Guider's operation was not eliminated after the
reopening of the plant and further, that in the light of the record
Vivian's explanation does not satisfactorily account for the reinstate-
ment of other employees to the classification from which Guider was
laid off.
We find that the respondent discriminated against Richard L.
Guider.
d. Inspection
Charles Anderson was first employed by the respondent on January
26, 1929, as an assembler in the chassis department. Thereafter he
worked as assistant night foreman in the chassis department, assembler
in the body department, polisher in the paint department, assistant
foreman in the body, department, assembler. in the chassis department,
and inspector in the inspection department. As an inspector he in-
spected operations in the chassis department. His last period•of con-
tinuous employment as an inspector dates from January 4, 1937.
During the term of his employment he received seven wage increases,
two of which were for merit.
Anderson became a member of the U. A. W. on May 8, 1937.
L. J. Layman, chief inspector, advanced as the reason for Anderson's
failure to be recalled the short period of time that Anderson had been
employed within the inspection department and the fact that he had
been considered a temporary employee there.
According to the method of computing seniority previously de-
scribed, Anderson was junior to all the employees who were reinstated
to the inspection department. But prior to his employment as an in-
spector he had had considerable experience in the chassis department.
His wage increases and his appointment to an inspection post in that
FORD MOTOR COMPANY 897
department manifested recognition of his ability to perform the work
of that department. , After an interruption in his employment Ander-
son returned to work as an assembler in the chassis department on
October 14, 1935, and continued in that classification until January 4,
1937. If his subsequent employment as an inspector was, as Layman
asserts, merely temporary, there was no break before his lay-off in his
continuous employment as an assembler. In such case he, was senior
to at least six non-union employees reinstated as assemblers in the
chassis department. We are of the opinion, in, the light of the fore-
going and of the entire record, that Layman's reasons do not satisfac-
torily account for the respondent's failure to recall Anderson.
We find that the respondent discriminated against Charles I.
Anderson.
Roy E. Brothers began to work for the respondent on January 20,
1929, as a trimmer in the trim department. Thereafter he was con-
tinuously employed as an inspector in the inspection department, an
assistant foreman in 'the trim department, and an inspector in the
inspection department.' He was in charge of night shift inspectors
for about 4 years. He was laid off as a final body, paint, and trim
inspector in the commercial body department. His last period of
continuous employment as an inspector dates from January 1, 1934.
He received during the period of his employment,, about 10 pay in-
creases, at least 3 of which were for merit.
In May 1937 Brothers had assisted in organizing the A. E. A.,
the formation of which is described above. The A. E. A. ceased
functioning about June-2, 1937. On June 6 Brothers applied for
membership in the U. A. W. and was initiated about 2 or 3 weeks
later. Brothers became very active in the U. A. W.
- During the period when Brothers was in charge of inspection on
the night shift, his employment record reveals, the respondent con-
sidered him "alert," "able," "capable," and "aggressive." Layman
testified that in the latter part of May 1937 he received complaints
about Brother's unreliability and neglect of work, amounting spe-
cifically to solicitation 'of membership in the A. E. A. and the
International Association of Machinists, with which the A. E. A.
attempted to affiliate; lengthy absence from places where he should
have been ; and failure to give "the support he should" to inspectors
on the night shift. Layman asserted that in order to ascertain
whether these complaints were true, he transferred Brothers to the
day shift as a general checker, but that after the change Brothers
still proved unsatisfactory. Brothers was then put in a vacancy
in the commercial body build inspection, where he remained until
he was laid off. Layman advanced the preceding contentions as
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasons for his unwillingness to recall Brothers as a general checker.
He indicated, nevertheless, that it was his intention to call Brothers
for some other inspection job, "when there was a place for him."
It,is undenied, however, and we find, in accordance with Brothers'
testimony, that he was transferred to the day shift pursuant to the
provisions of a posted notice which stated that day and night shifts
were to alternate at 2-week intervals. The following facts are also
uncontradicted. At the end of the 2-week interval Brothers inquired
of Layman why he was not returned to his regular job on the night
shift. Layman told him to stay on the day shift for another week.
About this time Brothers began to wear his union button in the
plant. Further, about the same time Brothers informed R., F. Har-
rison, factory superintendent, that he had joined the U. A. W.
Harrison asked Brothers if he thought joining would do him any
good. Thereafter, at the end of his third week on the day shift,
Layman repeated his request that Brothers continue on that shift
for another week. Brothers, by now suspicious that something was
amiss, thereupon sought from Harrison an explanation for his reten-
tion upon the day shift. Harrison referred him to Layman, who, in
turn, referred him back to Harrison. Brothers then had recourse
to the U. A. W., which advised him to await developments. After
he had put on ' his U. A. W. button and had disclosed his union
membership to Harrison he began to be followed by factory service
men. Brothers complained of these occurrences to Layman. It must
also be noted that when Brothers informed Layman that several anti-
U. A. W. employees near whom he had occasion to be employed, had
refused to speak to him, Layman urged him not to wear his button
there in order to avoid trouble. In the early part of July Brothers
was transferred, to, the commercial body build inspection and in-
structed that he was to continue to be employed on the day shift. In
that position he was in charge of no other employees, contrary to
what had been the case both on the day and night shifts while he
was a general checker. He was given less work than other employees
there. Only after a conference between the U. A. W. grievance com-
mittee, Brothers, Layman, and Harrison, during which various rea-
sons were urged by the latter two men for the irregularity of
Brothers' employment, did Brothers receive full-time employment.
It does not appear that at this conference either Layman or Harrison'
referred to any of the criticisms of Brothers which were advanced
by Layman at the hearing.
The foregoing circumstances substantially impair the weight and
credibility of Layman's objections to Brothers. Brothers' transfer
from the night to the day shift was not due to any fault of his. The
source of the complaints concerning Brothers' conduct on the night
shift was not disclosed. Prior to his transfer to the day shift he was
i
FORD MOTOR COMPANY 899
reprimanded only for soliciting members for the A. E. A., and not
for any of the other reasons to which Layman testified . That repri- i
mand took the form of warning by Layman to "take it easy because
[he] was liable to get fired." When Brothers sought,'on several 'occa-
sions, to learn from Harrison and Layman the cause for his retention
on the day shift no mention was made of any deficiency in his night
shift work. Furthermore, it does not appear that he was ever repri-
manded for work as a general checker on the day shift. Although
Layman said that reports about Brothers persisted after his transfer
to the day shift, he admitted that he was not certain whether he had
received any after the strike of May 25 to June 7, 1937. That strike
preceded the date when, according to Layman's own estimate, Brothers
was transferred to the day shift. Layman gave no particular source
for the reports he claimed to have received after Brothers' transfer.
None concerned solicitation of membership in any labor organization."
Layman finally formulated his criticisms of Brothers ' performance
on the day shift into two objections: First, Brothers' belief that he
was being watched indicated a "frame of mind" that made it difficult
for him to maintain the confidence both of Layman and of others;
there were reports that he was not getting the necessary cooperation
from the foremen and the employees. Second, Brothers was "not quali-
fied" to handle the job of general checking on the day shift, which was
more difficult than the similar night shift post he had occupied. The
vagueness and generality of these assertions corroborate our judgment
on the weakness of Layman 's explanation.
The preceding considerations, and the other facts in the record, lead
us to conclude that the matters urged by Layman were not the cause
for the respondent 's refusal to reinstate Brothers.
We find that the respondent discriminated against Roy E . Brothers.
Fred J. Lutz and Edward J. Walcott were first employed by the
respondent , respectively , on September 13, 1929, as a polisher in the
paint department , and on October 10 , 1928, as a trimmer in the trim
department . Thereafter Lutz was employed as a body rubber , a sander,
and a foreman in the paint department , and an inspector in the inspec-
tion department . He was laid off from the commercial body, paint,
and trim inspection . His last period of continuous employment as an
inspector in the inspection department dates from October 14, 1935.
During the course of his employment he received 10 wage increases,
of which at least 5 were for merit . Walcott was subsequently employed
as an assembler in the chassis department , a trimmer in the trim depart-
ment, and an inspector in the inspection department . He was laid off
from the final paint and trim inspection there. His last period of
continuous employment as an inspector in the inspection department
dates from February 1, 1934. During the course of his employment
he received nine wage increases , at least three of which were for merit.
413602-42-vol 29-58
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Walcott Became a member of the U. A. W. on April 16, 1937, and
wore his union button to work thereafter. Lutz became a member of
the U. A. W. on February 20, 1937, wore his union button thereafter,
picketed during strikes called by the U. A. W., and solicited neinber-•
ship among the men. As we have already found, C. H. Johnson, gen-
eral foreman, R. S. Mattern, body foreman, and Parly Dask, night
general foreman, addressed to Lutz such remarks as : "What do you
think you are going to gain by joining the Union"; "I think you are
kind of foolish to join the Union. You will never get nowhere"; and,
upon observing the union button, "Huh, you are another one to join
the Union ... I think you done something foolish."
Concerning Lutz and Walcott, Layman testified that they had both
been trim inspectors, that after the reopening of the plant, with
production at a low level, their operations were combined into a
single inspection operation, the final body inspection, then performed
by one Sangenito. Layman indicated that Sangenito, a former final
paint and trim inspector, had been given the job because he had more
experience at body inspection than Lutz and Walcott.
Sangenito was a member of the U. A. W. at the time he was pre-
ferred to Lutz and Walcott. However, W. S. Hannan, a non-union
employee, was reinstated to a paint inspection post. Admittedly Lutz
had done a considerable amount of such` work, but Layman advanced
no particular reason for preferring Hannan to Lutz.
Lutz had considerable experience and ability in the paint, and
Walcott in the trim, departments, as their designation as inspectors
and their wage increases indicated. Both were last continuously em-
ployed as inspectors for longer periods than the periods for which
many non-union employees reinstated to the paint and trim depart-
ments had been employed. No reason was offered for favoring these
employees over Lutz and Walcott.
On the basis of the foregoing facts and of the entire record, we
conclude that Layman's explanation for the failure to recall Lutz and
Walcott is unsatisfactory.
We find that the respondent discriminated against Fred J. Lutz and
Edward J. Walcott.
The gross disparity between the proportion of union men in the
plant before and after the plant shut down, and the respondent's
hostility to and campaign against the U. A. W., together with the
other facts in this record, lead us to conclude, and we find, that the
respondent failed to reinstate the employees listed in Appendix B
because of their membership and activity in the U. A. W., thereby
discouraging membership in the U. A. W., and interfering with, re-
straining, and coercing its employees in the exercise of rights guar-
anteed in Section 7 of the Act.29
10 See note 21, supra.
FORD MOTOR -COMPANY
C. The demotions
901
The complaint alleges that the respondent on or about September
3, 1937, demoted M. A. Williams, and on or-about November 1, 1937,
demoted H. W. Winters 30 from their former positions to less desira-
ble and less remunerative positions and has failed and refused to
reinstate them to their former,positions for the reason that they had
engaged in concerted activities with other employees of the plant for
the purposes of collective bargaining and other mutual aid and pro-
tection. The Trial Examiner recommended that the complaint be
dismissed as to, Winters. Upon the entire record we agree with this
recommendation. Since the U. A. W. has not taken exception to the
Trial Examiner's finding, we need not discuss Winters? case in
further detail.
The Trial Examiner found that Williams was discriminated against
because of his U. A. W. activities. The respondent excepted to.this
finding.
Manford Abner Williams was hired by the respondent on June 29,
1929, as a sander in the paint department. He served in that capacity
until October 1, 1932, when he became a spray man in the hood de-
partment. On April 1, 1933, he was promoted to assistant foreman
of the paint department because he was "experienced and needed."
On July 1, 1934, he became assistant foreman of the hood, department.
On November 16, 1935, he was classified in his employment record
as a "leader" in the hood department. On December 19, 1936, Wil-
liams became a charter member of the U. A. W. He began wearing
his union button in the plant on January 11, 1937. In February he
was chosen chief steward of the U. A. W. and thereafter wore his
steward's button at work. In the middle of February, Williams
was relieved of his duties as leader and assigned to "tacking off the
hoods" which consists in wiping the dirt off the hoods before putting
them into the spray booth. A week later, he was transferred to the
spray booth where he sprayed hoods with enamel. After a week
he was shifted to sanding in the hood department. A short time
later he was given the position of metal finisher or filer, also in
the hood department, and continued in this capacity until the shut-
down of September 3. "Practically all the time" during the shut-
down Williams was employed at lumber salvage in the assembly stock
department. He remained in this position after the plant reopened
on December 9, despite the fact that nine persons, including the
foreman, were reinstated to positions formerly held in the hood
department and four of these persons had been employed in the
hood department for a period less than that during which Williams
31 Incorrectly designated in the complaint as H H Withers
11
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been employed as leader, metal filer, and sprayer in the hood
department.
At the reopening of the plant Williams was the only U. A. W.
member who continued to wear his union button. During the spring
of 1937 Williams met with the management on many occasions in
order to discuss grievances. His transfers during 1937 were not
accompanied by pay increases or decreases. In fact, during his entire
tenure as the respondent's employee he received nine pay increases,
six of which were for merit. Williams received a higher rate of pay
than the employees in the assembly stock department. However,
Williams considers, and the Trial Examiner found, that his duties
require him to work in the yard away from contact with the other
employees in the plant, and that they are consequently less desirable.
Williams, as his record shows, was a Avorker of ability, who, after
years of employment, achieved the position of assistant foreman. In
view of the fact that Williams was the U. A. W.'s chief steward and
that the respondent was violently opposed to the U. A. W., as demon-
strated in part by its disproportionate employment of U. A. W. offi-
cials and members, the retention of Williams in a lesser position
away from most of the other employees, where men of less experience
and pay were ordinarily employed, can only be viewed as the result
of a desire by the respondent to place him where he Would be of
least benefit to the U. A. W. We find that when respondent failed
to retransfer Williams from the assembly stock department to the
hood department it discriminated against him because of his U. A. W.
activity, thereby discouraging membership in the U. A. W., and
interfering with rights guaranteed in Section 7 of the Act.
D. The refusal to bargain collectively
1. Appropriate unit
The complaint alleges that all production and maintenance employees
of the respondent at its Richmond, California, plant, excluding exec-
utives, supervisory employees of the rank of assistant foremen, foremen,
and above, persons having the power to hire and discharge, and clerical
employees, and including checkers and clerical workers employed in
production departments or performing part-time manual work, con-
stitute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act. This allegation of
the complaint is denied in the respondent's answer. At the hearing
and in its exceptions and brief, the respondent urged the exclusion of
factory service employees from the bargaining unit and contended that
assistant foremen should be included if pushers and leaders are included
in such unit. '
FORD MOTOR COMPANY 903
The respondent contends that factory service employees are not
production employees but in fact constitute the "police department" of
the respondent, "the atchmen, the firemen, the persons in charge of
the automobiles properly of the Ford Motor Company, and among
their duties is to police the plant." The U. A. W. desires the inclusion
of the factory service employees within the appropriate unit, urging
that it has taken up grievances in behalf of such employees.
It has been our practice to include watchmen, policemen, and similar
employees within a bargaining unit composed essentially of production
and maintenance employees where such inclusion is requested by a
participating labor organization.31 Following our usual practice in
such cases, we shall include the factory service employees within the
bargaining unit.
The U. A. W. requests that pushers .and leaders be included within,
the appropriate unit. The respondents position that if pushers and
leaders are included within the appropriate unit, assistant foremen
should also be included-is based upon its contention that the rank of
assistant foreman is merely a "strawboss title." Employment records
indicate, however, that assistant foremen and pushers and leaders repre-
sent, different classifications of employees. Assistant foremen do not
work on operations as do pushers and leaders. The foremen perform
the work of ordinary employees only during periods in which produc-
tion in curtailed. In view of these differences, and the desires of the
U. A. W. uncontested by any participating labor, organization, we
shall include pushers and leaders in the bargaining unit and exclude
the assistant foreman therefrom.
The U. A. W. also desires the inclusion within the appropriate unit
of checkers and of those clerical employees who,at times perform
manual labor. Since no specific objection to their inclusion has been
interposed, we shall include within the appropriate unit checkers and
those clerical employees performing part-time manual work.
We find that the respondent's production and maintenance employees
at its Richmond, California, plant, including factory service employees,
leaders and pushers, checkers, and clerical employees employed in thc,
production department or performing part-time manual work, but
excluding executives, assistant foremen, foremen, and employees above
them in a supervisory capacity, persons having the power to hire and
discharge, and other clerical employees, constitute a unit appropriate
for the purposes of collective bargaining and that such a unit insures
to employees of the respondent the full benefit of their right to
collective bargaining and otherwise effectuates the policies of the Act.
81Matter of Bethlehem Shipbuilding Corp, Ltd. and Indnistraal Union of Marine and
Shipbuilding Workers of America, etc., 11 N. L. _ R B. 105; Matter of Stehli and Co, Inc
and Textile Workers Union, etc ., 11 N. L . R. B. 1397.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Representation by, the U. A. W. of the majority in the appropriate
unit
The complaint as amended alleges that the respondent refused to
bargain collectively with the U. A. W. on or about, and at all times
after, April 23, June 4, and December 7, 1937, and January 3, 1938.
Applying our above findings on the appropriate unit, we find that
on June 4, 1937, approximately 1,294 employees were in the appro-
priate unit.
The U. A. W.'s financial, membership, and other records,82 which
the respondent inspected, show that by June 4, 1937, at least 1,078
employees in the appropriate unit, a majority, had designated the
U. A. W. as their collective bargaining representative.33 The
U. A. W. was thus the duly designated representative on June 4,
1937, and continued in that status thereafter unless and until the
contrary was shown.34
This record does not show that the U. A. W. lost its representative
authority after June 4, 1937. Thus, on or about September 3, 1937,
the day of the shut-down there were on the pay roll in the appro-
priate unit about 1,261 employees, of whom 939 were U. A. W.
members. On December 7, 1937, during the shut-down, 1,052 em-
ployees in the appropriate unit had designated the U. A. W.35 Of
33 Lists were compiled from U. A. W. membership cards and financial records purporting
to show 373 names of persons whose membership was paid up as of June 1938, 422 names
of persons who had 'applied for membership and had paid their full initiation fee, and 415
names of persons who had applied for membership and had paid part of their initiation fee
33 In arriving at the figure 1,078, the contentions of the respondent as to the employees
who should be included among those designating the U . A W. as their collective bargaining
representative have been accorded full effect , except that we have not deducted the entire
number of those persons who signed applications for membership in the U A. W . and who
the respondent contends failed to pay dues or cease paying dues prior to June 1937. The
deductions made include 6 duplications of names, 4 omissions of numbers , 6 who•applied
after June 4, 49 not employed by the respondent or within the appropriate unit, 29 for
which no designation dates appeared , and 18 who withdrew membership prior to June.
3+N L R. B v. Piqua Munising Wood Products Co., 109 F. ( 2d) 552 ( C. C. A 6 ), enf'g
Matter of Piqua Munising Wood Products Co and Federal Labor Union, etc., 7 N L R B.
782; N L . R. B. v. National Motor Bearing Co , 105 F. (2d) 652 ( C. C. A. 9 ), enf'g as mod.
Matter of Natwiial Motor Bearing Co and International Union, United Automobile Workers
of America, etc, 5 N. L. R. B. 409; International Association of Machinists v. N L. R B ,
311 U S . 72, aff'g 110 F ( 2d) 29 ( App. D ._C ), enf'g Matter of The Serrick Corp. and
International Union , United Automobile Workers of America, etc, 8 N . L. R B 621 ;
N L R B v Remington Rand, Inc, 94 F. (2d) 862 (C C. A. 2), enf'g Matter of Remington
Rand, Inc and Remington Rand Joint Protective Board, etc , 2 N L. R B. 626.
as In arriving at the figure 1,052, the method of computation utilized is substantially
the same as the method employed in determining the number of employees w ho had, on
June 4 , 1937, selected the U A. W. as their collective bargaining agent . The deductions
made include 6 duplications of names, 4 omissions of numbers , 49 not employed by the
respondent or within the appropriate unit , 29 for which no dates appeared , and 50 who
withdrew membership prior to December . Even if full effect were given to all the re-
spondent 's contentions except those which would exclude the entire list comprising the
names of persons who merely signed applications for membership in the U A. W. and
paid part of their initiation fee, the approximate number of persons in the appropriate
unit designating the U . A. W. as their collective bargaining agent would have been 847 as of
June 4, 1937 , and 822 as of December 7, 1937.
FORD MOTOR COMPANY 905
the 700 employees actively employed on January 3, 1938, 657 were
in the appropriate unit and on that date 369 of the 657 had, designated
the U. A. W.
We find that on June 4, 1937, and at all times thereafter) the U. A. W.
was the duly designated representative of the employees in the ap-
propriate unit, and, pursuant to Section 9 (a) of the Act, was the
exclusive representative of all the employees in such unit for the pur-
poses of collective bargaining with respect to rates of pay, wages,
hours of employment, and other conditions of employment.
3. The refusal to bargain
a. Background; the sit-down strike and its settlement; the
respondent's policy
Between January and June 1937, Frank Slaby, who led the U. A. W.
but was not employed by the respondent, requested the respondent
to confer with him. Although the respondent met with a committee
composed of its employees, it refused on numerous occasions to confer
with Slaby.
During this period the respondent customarily shifted U. A. W.
members to less desirable positions, reinstating them to their former
jobs upon protest, only to transfer them again to inferior work. In
protest against this practice, the employees began a sit-down strike
on April 23.
On April 25 representatives of the U. A. W. met with one John
Adams for the purpose of settling the strike. Adams stated that he
represented the Ford Motor Company "as kind of a labor relations
man" to settle its labor difficulties; that he had settled disputes for the
Ford Motor Company in Kansas City and St. Louis, and that he was
sent to Richmond by the respondent to attempt to settle the trouble
in Richmond. He also stated that he was the "labor relations man and
personal representative" of Harry Bennett, head of the service de-
partment of Ford Motor Company. Adams did not testify at the
hearing. J. H. Peterson, a representative of the respondent's Detroit
office from whom R. S. Harrison, superintendent of the 'Richmond
plant, admittedly received his orders, came to Richmond during the
strike, associated with Adams, and told Robert W. Phillips, an em-
ployee, that Adams represented the respondent and was "from the
home office." Peterson did not testify at the hearing.
At the April 25 meeting Adams stated to the U. A. W. representa-
tives: "We will recognize your committee; but, of course, they must
be employees of the Ford Motor Company ... we will recognize the
Union through the back door . . . [The respondent] would never sign
with any organization." The conferees agreed orally upon various
906 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
terms of employment, including transfers, seniority as the basis for
lay-offs, Harrison's managerial authority, availability of employment
records to the U. A. W., time for starting and quitting work, and the
use of relief and utility men. Peterson, in the presence of Adams,
informed Harrison that the plant would reopen.
On the following day, April 26, the striking employees returned to
work upon the basis of the above-described understanding.
On April 27 the respondent, through J. R. Davis, sales manager
stationed at its home office in Dearborn, sent the Richmond manager
and superintendent "an outline of the requirements in handling mat-
ters that may develop in connection with the National Labor Rela-
tions Board." These "requirements" contain the following: "the
company ... is not required to enter into any collective contract with
any representative of the company's employees," and "may enter into
an individual contract of employment with any individual employee."
b. The strike from May 25 to June 7, 1937, and its settlement;
negotiations
On May 25, 1937, the U. A. W. grievance committee, charging
that the respondent had violated the oral understanding of April 25
and had engaged in other practices tending to discourage member-
ship in the U. A. W., presented a number of grievances to Harrison
and requested adjustment thereof. Failing to reach an understand-
ing, the U. A. W. called a strike in the -afternoon of May 25. The
plant was completely shut down and constantly picketed until the
men returned to -work on June 7, 1937.
On June 2, 1937, the respondent met with the U. A. W. committee
at the Oakland Hotel, Oakland, California. The U. A. W. commit-
tee outlined the reasons for the strike, asserted that the respondent
had failed to abide by any oral agreements, and insisted upon a
written agreement. - Adams, who was present with Peterson, ad-
mitted that the respondent's local management had not acted properly,
stated that the grievances should never have arisen, and offered the
U. A., W. a new oral agreement. The U. A. W. insisted, however,
that it "had taken their (the respondent's) word twice before and
it had been broken, and we wouldn't go back without a signed agree-
ment." The U. A. W. presented its grievances and also a proposed
signed contract. The contract provided, among other things, for
the recognition of the U. A. W. as the "sole bargaining agency
between the Employer and the Employees."
Adams said that "the contract was a fine agreement, but that if
any agreements are signed with Ford they must be signed nationally
and not by one local plant." , The grievances were thoroughly dis-
cussed and Adams made certain concessions. Thus, Adams promised
FORD MOTOR COMPANY 907
that the A. E. A. would be discontinued. When Adams was told
that a meeting of the -A. E. A. was to be held in Richmond that
day, "he acted very surprised ... So he went out of the room and
came back in a few minutes and told us that they wouldn't have
any meeting there that day." The meeting was not held that day
and no further meetings of the A. E. A. were held thereafter.
The conference resumed on June 3. The U. A. W. representatives
agreed to submit certain terms to the general membership. The
general membership of the U. A. W. rejected them and insisted upon
a signed agreement. Thereafter, the U. A. W. and the respondent
agreed to confer with the regional agents of the Board.
On or about June 4 Adams, R. S. Harrison, plant superintendent,
C. A. Bullwinkel , plant manager , and other company officials met
with the Board 's Regional Director and Field Examiners . ' Adams
introduced himself as J. H. Peterson, representative of the personnel
department at Detroit. The respondent's other officials present did
not expose Adams' impersonation of Peterson or disclaim his author-
ity to act on the respondent's behalf. The respondent gave to the
Regional Director, for transmission to the U.'A. W., its proposals
for the settlement of the strike. They included an undertaking that
the strikers could "return to work without discrimination"; that the
respondent would "continue to meet with a committee of 12 Ford
employees-as representative of all employees at the Ford Plant at
Richmond"; and that the various union grievances would be "con-
sidered and adjusted. " They did not provide for recognition of
the U. A. W., or for a collective bargaining contract. Adams stated
to the Board's agents, in explanation of the respondent's, proposals,
that the respondent objected to stating that it recognized the
U. A. W.; that it did recognize the committee of employees as above
noted; that Adams knew this was a U. A: W. committee; that this
was "back door recognition " of the U. A. W.; and that the respondent
did not recognize the U. A. W. "officially."
Thereafter , on June 4, the Regional Director transmitted the respond-
ent's proposals to the U. A. M. That evening the U. A. W. membership
rejected the respondent 's offer.
The local newspaper, dated June 5, published an article purporting
to describe the status of the negotiations . The article contained, among
other things, the following alleged statement by Harry Bennett : "We
haven't had any dealings with the Union ." The respondent did not
deny that Bennett authorized this release.
On June 5 the U. A. W. representatives held a further conference
with Adams and Peterson , and on June 6 the U. A. W. membership
voted to accept the respondent 's above-mentioned proposals.
On June 7 the U. A. W. representatives met with Bullwinkel, Har-
rison, Peterson , Adams, and an agent of the Board. The ' parties
908 DECISIONS OF NATIONAL LABOR RELATIONS 'BOARD
agreed to the respondent 's proposals of June 4, and discussed plans
for reopening the plant . Following the conference the plant re-
opened and the striking employees gradually returned to work.
During these negotiations Adams had remarked to Slaby : "After
we make this agreement you give out your press release and , of course,
a day or two after you 'll see a statement from the Ford officials-Ben-
nett will most likely give it out-denying everything that we agreed
on."
c. Subsequent events
Immediately after the conference of June 7 the plant reopened and
the men gradually returned to work . During June and July the
management met with the U. A. W. grievance committee concerning
grievances as they arose , which was about once a week. In August
the parties averaged from one to three meetings a week. The plant
closed down on September 3, 1937, and only a few meetings were
thereafter held between the grievance committee and the management.
These latter meetings were particularly concerned with a skeleton crew
retained during the shut-down and comprising for the most part men
in the service -stock department.
On or about December 7, a day or two before the plant reopened for
production of the new model , the U. A. W. stewards received word 36
that they were to attend a meeting with a "Ford representative." Man-
ford Abner Williams, chief steward of the U . A. W., who continued to
work during the shut-down , related without refutation , and we find,
that the U. A. W. committee and a number of the stewards and other
members of the U . A. W. were present at this meeting held in an audi-
torium paid for by others than the U. A. W.; that John Adams ad-
dressed the assembly and asserted that the plant was going to be re-
opened, that the committee plan had not worked in the past , and that
he wanted it to cease its functions upon the plant-'s reopening. Adams
further stated that a labor relations man would be appointed to handle
employee grievances , that he wanted those assembled to consider this,
suggestion , that it had worked out well at the Long Beach plant, and
that he would meet with the Richmond men again on a day to, be
arranged.
On December 7 the respondent appointed an official , I. R. McMurray,
to be in charge of employment at the, Richmond plant. The plant
resumed operations 2 days later. As noted above, 41 of the 47 U. A. W.
stewards , employed before the September lay-off , did not receive
reinstatement upon and after the reopening of the plant.,
36 Coleman , a U A. W. organizer , sent a telegram from Los Angeles to O'Donnell on
December 6, directing him to call , "C. E. Moore" at the Hotel Oakland "Moore " proved
to be Adams O'Donnell and K. Broadhurst met with Adams . Adams asked them to
convene the entire U. A. W. committee for a meeting on December 7. Thirty or forty
stewards ' and committeemen were convened for the meeting.
FORD MOTOR COMPANY 909
- Thereafter , neither Adams nor any other person connected with
the respondent arranged to meet with the U . A. W. representatives.
On January 3, 1938, the U. A. W. committee, which had met with
management prior to the shut-down , sent Robert W. Phillips and
Maurice F. O'Donnell , employees who respectively were president,
and financial secretary and treasurer of the U. A. W., to Harrison
to arrange for a conference between the respondent and the U. A. W.
At the respondent's information desk, the two men were told that
Harrison could not be reached . They went to the gate of the plant
and, not being allowed in the grounds, asked the gateman to bring
Harrison to them. The gateman went away and returned to report
that he did not know where Harrison was., When the men persisted
in their statement that they desired to see Harrison , the gateman
returned with McMurray . O'Donnell testified that he told McMur-
ray that he wanted to see Harrison "about conditions of employment
and making an appointment with our committee to discuss these
things," and that McMurray replied, "Harrison isn't handling that
any more. I'm the one that is handling that, and I won't recognize
you or your committee as representing anyone, but Ill recognize any
man on his individual case." O'Donnell then stated that the U. A. W.
wanted a conference with McMurray if McMurray was the proper
party to approach. According to O'Donnell this request was refused :
Although McMurray denied that the two men told him they repre-
sented the U. A. W., he. admittedly knew them and had "heard" that
Phillips was president of the U. A. W.; and he testified to the follow-
ing : They said that they wanted to talk "about the men working in
the plant" ; and he told them that he "wasn't interested in talking
to them about the men working in the plant ; that if they wanted
to talk about their own individual cases, I would be glad to talk to
them. With that I started to turn and walk away. They said, `I
take it by that, that you don't want to talk to us .' I said, `Sure, I
will talk to you any time you want to talk about your own indi-
vidual cases."' Considering the testimony of O'Donnell and McMur-
ray, in the light of the respondent's above-described conduct, we find
that the respondent through McMurray refused to meet with the
U. A. W. on and after January 3, 1938.
d. Concluding findings
The respondent contends that there is no substantial evidence to
show that Adams was authorized to represent the respondent.
Adams represented himself as an agent of , and spoke on behalf of,
the respondent . During the April strike Peterson , a company repre-
sentative , stated that Adams was a company agent from its "home
office." Adams showed intimate knowledge of the respondent's poli-
-910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cies and associated with other officials of the respondent in confer-
ences with and concerning the U. A. W. The respondent adopted
the strike settlements which he negotiated on its behalf, and he was
able to prevent the company-assisted A. E. A. from holding meetings.
Finally, he impersonated a company representative in the presence of
other company representatives, who, knowing of the impersonation,
did not disclaim Adams' authority to speak on behalf of the respond-
ent. Under these circumstances, we find that Adams was a repre-
sentative of the respondent with respect to the above-mentioned trans-
actions and other events.
Under Section 8 (1) and (5) of the Act in connection with Section
9 (a), the respondent, upon request, was obliged to bargain with the
U. A. W., in good faith, as exclusive representative of the employees
at the Richmond plant," and to embody understandings reached in a
binding agreement reduced to writing.38 Upon the'basis of this record
it is clear that the respondent did not fulfill these obligations.
The respondent refused to conclude any agreement with the U. A. W.
Such refusal, the respondent's statement on April 25 that it "would
never sign with any organization," and its instruction to the Richmond
officials on April 27 that the respondent "is not required to enter into
any collective contract" and may enter into individual employment
contracts, demonstrate that the respondent entered into negotiations
with the U. A. W. with its "mind hermetically sealed against even
the thought of entering into an agreement with the Union." 39 More-
over, the respondent's position with respect to a collective agreement ;
its refusals on numerous occasions prior to June 1937 to meet with a
non-employee representative of the U. A. W'; its position on April 25
that the respondent would meet only with a committee of employees,
and give the U. A. W. only "back-door," and not official recognition; its
reiteration of this position on or about June 4, 1937; its policy of pub-
licly denying that it had reached an understanding with the U. A. W.;
and its "suggestion" that the U. A. W. eliminate its shop-steward sys-
tem, prove that the respondent interfered with, and did not give exclu-
sive recognition to, the representative of its employees. Further, the
respondent's efforts to undermine the U. A. W., evidenced by its dis-
31N. L R. B v. Sunshine Mining Co, 110 F. (2d) 780 (C C. A 9) ; N I, R B v. Biles-
Coleman Lumber Co, 98 F. (2d) 18 (C C A 9) , N L R B v Somerset Shoe Company,
111 F (2d) 681 (C. C. A. 1) ; Fort Wayne Corrugated Paper Co v N L. R B, 111 F
(2d) 869 (C. C. A. 7) ; N. L. R. B v Piqua Munising Wood Products Co, 109 F. (2d)
552 (C. C A. 6) ; N. L. R. B. v. Griswold Mfg. Co., 106 F. (2d) 713 (C. C. A. 3).
3811 J Heinz Co V N L R B, January 6, 1941, 311 U S 514, aff'g 110 F (2d)
843 (C. C. A. 6), enf'c as mod Matter of 11 J Heinz Co and Canning and i fickle Workers,
etc, 10 N L R B 963; N. L. R. B. v. Sunshine Mining Co, abed ; N L R 13 v. Highland
Park Mfg. Co., 110 F. (2d) 632 (C C. A. 4) ; Matter of Westinghouse Electric & Manu-
facturing Company, etc and United Electrical, Radio and Machine Workers of America, etc,
22 N. L R. B. 147, and cases cited.
39 N L. R . B. v. Griswold Mfg. Co., supra , note 37
FORD MOTOR GOMPANY 911
criminatory refusal to reinstate the U. A. W. shop stewards and other
members of the U. A. W., and its other acts of interference , restraint,
and coercion , mentioned above, show the respondent 's bad faith in
respect to the U. A. W. Finally, the respondent refused to meet with
the U . A. W. on and after January 3, 1938.
We find that the respondent , on and at all times after June 4, 1937,
refused to bargain collectively with the U. A. W. as the representative
of its employees in respect to rates of pay, wages , hours of employment,
and other conditions of employment , and that, by the above conduct, it
interfered with, restrained, and coerced its employees in the exercise
of rights guaranteed in Section 7 of the Act.
THE REMEDY
Having found that the respondent has engaged in unfair labor prat.
tices , we will order it to cease and desist therefrom and to take certain
affirmative actions designed to effectuate the policies of the Act and to
restore as nearly as possible the condition which existed prior to the
commission of the unfair labor practices.
Having found that the respondent refused to bargain in good faith
we will order it to bargain collectively with the U. A. W., upon request,
and, if understandings are reached; to embody such understandings
in a signed agreement upon request.
We have further found that the respondent has discriminated against
the employees named in Appendices A and B. We shall order the
respondent to' offer immediate reinstatement to their former or sub-
stantially equivalent positions , without prejudice to their seniority -
or other rights or privileges , to those listed in Appendices A and B,
with the exception of Troy Cloinger , who testified that he did not
desire reinstatement. All of the employees presently working for
the respondent who have been hired since January 3 , 1938, shall, if
necessary , be dismissed by the respondent to provide employment
for those to be offered and who shall accept reinstatement . If there-
upon, despite a dismissal of all such employees , there is not sufficient
employment immediately available for the employees presently work-
ing, for the respondent , excluding those dismissed, and for the em-
ployees to be offered , and who shall accept, reinstatement , then all posi-
tions of employment shall be distributed by the respondent among the
employees presently working, excluding those dismissed , and the em-
ployees to be offered and who shall accept reinstatement , in accordance
with the respondent's usual method of reducing its force, without
discrimination against any employee because of his union affiliation
and activities, following such a system of seniority or other non-dis-
criminatory procedure as has been heretofore applied by the respond-
912 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
ent in the conduct of its business. Those employees remaining, after
such distribution, for whom no employment is immediately available
shall be placed on a preferential list, with priority determined among
them in accordance with such system of seniority or other non-dis-
criminatory procedure as has been heretofore applied by the. respondent
in the conduct of its business, and, thereafter, in accordance with such
list, shall be offered reinstatement by the respondent in their former
or substantially equivalent positions, as such employment becomes
available and before other persons are hired for such work.
The record reveals that by January 3, 1938, the respondent had sub-
stantially completed the recall of its force for work on the 1938 model.
We find that date to be the earliest ascertainable date of the respond-
ent's discriminatory refusal to reinstate the employees listed in Ap-
pendices A and B. The restored force on that date, and subsequently,
however, was considerably smaller than that which existed before the
September 1937 lay-off ; thus, between September and January the
number of working employees in the appropriate unit declined about
one-half, from 1,261 to 657. It is probable that, even had the respond-
ent committed no discriminatory act, some of the persons listed in
Appendices A and B'would not have secured continuous employment
with the respondent. , In such circumstances it does not seem feasible
at this date to compute the back pay due to each employee discrim-
inated against, as it-would be computed in a normal case by ascertain-
ing the exact amount, absent discrimination, each individual would
have earned with the respondent from the date of the discrimination to
the date of reinstatement pursuant to our order, less his net earnings
during the same period. Instead, we shall employ a method of cal-
culation which is at once, practicable, just, and consonant with the
policy of the Act.40 '
We shall direct the respondent to compute a lump sum consisting
of all wages paid by the respondent to those working in the appro-
priate unit during the period from January 3, 1938, up to the date
on which the respondent complies with our order reinstating or
placing on a preferential list the employees discriminated against."
Of this sum 14si261ths 42 shall be credited to the employees listed in
Appendices A and B. Individual credits shall then be calculated by
apportioning the sum credited to those listed in Appendices A and
B among the members of that group in accordance with their hourly
wage-rate prior to the plant shut-down on September 3, 1937.
40 Cf. Matter of Eagle -Picher Mining and Smelting Co , at al. and International Union
of Mine, Mill & Smelter Workers , etc, 16 N L . R. B 727
41 If at any time during this period the number of working employees in the appropriate
unit exceeds 1,261, only such a proportion of the total wages for that time as 1,261 bears
to the number of such working employees shall figure in the reckoning.
11 One hundred and forty-three is the number of employees listed in Appendices A and B ;
1,261 is the number of employees in the appropriate unit ' at the time of the shut-down.
FORD MOTOR COMPANY 913
After individual credits have been arrived at in the manner set
forth above, individual deductions are to be made.
For those whose cases were sustained by the Trial Examiner 43
deductions should be made as follows : Each individual's share is to
be diminished by a portion of his net earnings 44 during the period
from January 3, 1938, to the date of his reinstatement or placement
upon a preferential list; that portion is to be determined by multi-
plying such net earnings by the following proportion, known herein
as the governing proportion. It consists of the sum of money
credited to each' employee in the manner set forth above, over the
aggregate average wage paid to employees working in the appro-
priate unit during the time described in the previous sentence.
For those whose cases were dismissed by the Trial Examiner 45 the
following procedure should be observed : In the exercise of our dis-
cretion we shall not require the respondent to reimburse any of such,
employees for the period from the date of the Trial Examiner's In-
termediate Report, September 2, 1938, to the date of our Order 46
The' individual credit of each of the aforesaid employees shall there-
for be reduced to a sum determined by multiplying his credit -by
the proportion between the total number of days between the date
of discrimination and the date of reinstatement or placement on a
preferential list less the total number of days excluded in - that
period, and the,total number of days between the date of discrimi-
nation and the date of reinstatement or placement on a preferential
list. Thereafter a portion of the net earnings 47 of such an employee
is to be deducted. However, only those net earnings which each
such employee earned during the period for which he receives back
pay should be considered as deductible. The reduced credit of the
aforesaid employee should then be diminished by a portion of his
deductible net earnings determined by the governing proportion out-
lined above.
The ultimate sums arrived' at in each case should be paid by the
respondent to those named in Appendices A and B 1 and 2. To Troy-
Colinger,48 who testified at the hearing that he did not desire rein-
48 Listed in Appendices A 1 and B 1.
4413y "net earnings" is meant earnings less expenses , such as for transportation ,_ room,
and board, incurred by an employee in connection with obtaining work and uorkmg else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Ai erica,
Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for
work performed upon Federal, State, county, municipal , or'other work-relief projects
shall be considered as earnings See Republic Steel Corporation v. N. L. R. B, decided
by United States Supreme Court, November 12, 1940
46 Listed in Appendices A 2 and B 2.
49 Matter of E. R. Haffelfinger Company, Inc and United Wallpaper Crafts of Noith
America, Local No. 6, 1 N. L. R B. 760.
47 See note 44, supra.
48 Listed in Appendix B 3
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement, we shall award back pay only for the period between the
date of discrimination and the date of his testimony, June 24, 1938.
The necessary deductions by reason of the shortened period and by
reason of his net earnings during that period, shall be calculated in
accordance with the method outlined for persons listed in Appendices
A2andB2.
We have found that Manford Abner Williams was discriminated
against when respondent failed to retransfer him from the assembly
stock department to the hood department. We shall, therefore, order,
that Williams be reinstated to his former position in the hood depart-
ment without prejudice to his seniority and other rights and privileges.
The respondent contends that, since the employees named in the
complaint, as amended, engaged in the sit-down strike of April 1937,
its refusal to reinstate them could not constitute discrimination. It
is readily apparent that this defense, urged at this late date, is pre-
text.49 The employees were reinstated by the respondent after the
sit-down strike, engaged in another strike a month later, were again
reinstated, worked until the lay-off in September, and, according to the
respondent, would have been reemployed in December had business
conditions warranted. To permit the fact that these employees had
once- engaged in a sit-down strike forever to render them subject to
disciplinary action would lead to serious industrial unrest and permit
employers to use the threat of dismissal as an instrument of arbitrary
oppression. Certainly, under the circumstances, the policies of the
Act would not be effectuated by denying reinstatement. We find
the respondent's contention to be without merit.
TIIE PETITION
In view of the findings in Section III above as to the appropriate
unit and the designation of the U. A. W. by a majority of the re-
spondent's employees in the appropriate bargaining unit as the rep-
resentative for the purposes of collective bargaining, it is not necessary
to consider the petition of the U. A. W. for certification of representa-
tives. Consequently, the petition will be dismissed. ,
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Union, United Automobile Workers of America,
Local No. 560, is a labor organization within the meaning of Section
2 (5) of the Act.
49 Matter of Kentucky Firebrick Company and United Brick and Clay Workers of America,
Local Union No. 510, 3 N. L. R. B. 455, enf 'd 99 F . ( 2d) 89 (C C. A G)
FORD MOTOR COMPANY 915
2. All the respondent's production and maintenance employees at
its Richmond, California, plant, excluding executives, assistant fore-
men, foremen, and employees above them in a supervisory capacity,
persons having the power to hire and discharge, and clerical employees,
but including factory-service employees, leaders and pushers, checkers,
and clerical employees employed in the production department or per-
forming part-time manual work constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9
(b) of the Act.
3. International Union, United Automobile Workers of America,
Local No. 560 , was, on June 4, 1937 , and at all' times thereafter has
been, the exclusive representative of all the employees in such unit for
the purposes of collective bargaining within the meaning of Section
9 (a) of the Act.
4. By refusing to, bargain collectively with International Union,
United Automobile Workers of America, Local No. 560 , as exclusive
representative of its employees in the appropriate unit, the respondent
has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (5) of the Act.
5. By discriminating against the employees named in Appendices
A and B in regard to their hire and tenure of employment, and against
Manford Abner Williams in regard to his conditions of employment,
and thereby discouraging membership in the International Union,
United Automobile Workers of America, Local No. 560, the respond-
ent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (3) of the Act.
6. By interfering with, restraining , and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
8. The respondent , by refusing to-reinstate the employees named in
Appendix C and by refusing to restore. H. W. Winters to his former
position , has not engaged in unfair labor practices within the meaning
of Section 8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board, hereby orders that the respondent,
Ford Motor ' Company, and its officers , agents, successors , and assigns
shall :
413602-42-vol 29--i9
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Discouraging membership in the International Union, United
Automobile Workers of America, Local No. 560, or any other labor
organization of its employees, by refusing to reinstate or transfer any
of its employees or in any other, manner discriminating in regard to
their hire or tenure of employment or any term or condition of their
employment ;
(b) Refusing to bargain collectively with the International Union,
United Automobile Workers of America, Local No. 560, as the exclusive
representative of its production and maintenance employees at its Rich-
mond, California, plant; excluding executives, assistant foremen, fore-
men, and employees above them in a supervisory capacity, persons
having the power to hire and discharge, and clerical employees, but
including factory-service employees, leaders and pushers, checkers, and
clerical employees employed in the production department or perform-
ing part-time manual work;
(c) Circulating, distributing, or otherwise disseminating among em-
ployees of the respondent written or printed matter which by its con-
tent or manner of distribution or the circumstances under which it is
distributed, interferes with, restrains, or coerces such employees in
the exercise of rights guaranteed in Section 7 of the Act;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their ownchoosing, and to engage in concerted activities
for the purposes of collective bargaining or other mutual aid or pro-
tection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the International Union,
United Automobile Workers of America, Local No. 560, as the ex-
clusive representative of its production and maintenance employees
at its Richmond, California, plant, excluding executives, assistant fore-
men, foremen, and employees above them in a supervisory capacity,
persons having the power to hire and discharge, and clerical employees,
but including factory-service employees, leaders and pushers, checkers,
.and clerical employees employed in the production department or
performing part-time manual work, in respect to rates of pay; wages,
hours of employment, and other conditions of employment, and, if an
understanding is reached on any of such matters, upon request embody
such understanding in a signed agreement;
(b) Offer to Manford Abner Williams immediate and full rein-
statement to his former or substantially equivalent position, without
prejudice to his seniority and other rights and privileges;
FORD MOTOR COMPANY 917
(c) Offer to the employees listed in Appendices A and B 1 and 2,
immediate and full reinstatment to their former or substantially equiv-
alent positions without prejudice to their seniority and other rights
and privileges, dismissing if necessary all employees hired since Janu-
ary 3, 1938, in the manner set forth in the Section entitled "The
Remedy" above, and place those for whom employment is, not im-
mediately available upon a preferential list and offer them employ-
ment as it becomes available in the manner set forth in said Section;
(d) Make whole the employees listed in Appendices A and B, for
any loss of pay suffered as a result of the respondent's discrimination,
in the manner set forth in the Section entitled "The Remedy" above ;
(c) Post Immediately in conspicuous places throughout all depart-
ments of the respondent's plant in Richmond, California, and main-
tain for a period of at least sixty (60) consecutive days from the
date of posting, notices to its employees stating; (1) that the respond-
ent will not engage in the conduct from which it is ordered to cease,
and desist in paragraphs 1 (a), (b), (c), and (d) ; (2) that the jre-
spondent will take the affirmative action set forth in 2 (a), (b), (c), and
(d) of this Order; and (3) that employees are free-to remain or be-
come members of the International Union, United Automobile Workers
of America, Local No. 560, or any other labor organization, and that
the respondent will not discriminate against any employee because of
such membership ;
(f) Notify the Regional Director for the Twentieth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, as amended, in so far as
it alleges- that the respondent has engaged in unfair labor practices
within the meaning of Section 8 (3) of the Act by demoting H. W.
Winters and refusing to reinstate the employees named in Appendix
C be, and it hereby is, dismissed.
AND IT IS FURTHER ORDERED that the petition for investigation and
certification of representatives filed by International Union, United
Automobile Workers of America, Local No. 560, be, and it hereby is,
dismissed. _
APPENDIx, A
1. Sustained by Trial Examiner
Alexander, William Richard
Bacigalupi, Renon McDowell
Barlow, George L.
Blenkush, Edward W.
Crail, Donald A.
Fraga, Boyer
Guido, Louis E.
Hettich, Paul C.
Hogan, Patrick
Krotoff, Alex S.
MacDonald, John
McDonald, John A.
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McKenna, Vincent A.
Martin, Manuel
Millovich, John
Morrison, Harry L.
Myhre, Palmer S.
O'Donnell, Maurice F.
Palos, Samuel
Phillips, Robert W.
Powers, George
Redding, Ernest L.
Roth, Earl A.
Saletta, Frank Robert 50
Throop, Oscar R.
Tilley, Lynwood H.
Van Elsen, Joseph
Wood, Fred
2. Dismissed by Trial Examiner
Howell, Richard H., Lutz, Harry B.
Larssen, James P. Oakley, Albert E.
APPENDIX B
1. Sustained by the Trial Examiner
Adams, Hardy P.
Agapoff, Fred
Allen, William E.
Ambrose, George L.
Anderson, Charles I.
Arsenault, Wm. J.
Aschman, Ernest G.
Baldwin, Frank L.
Barber, Gregory J.
Barrios, Manuel
Beaman, Wm. E.
Bell, Ralph H.
Bertrand, Walter
Blank, Paul
Brooks, Ross F.
Brown, Ernest A.
'Brubaker, W. E.
Bryant, Charles N.
Carpenter, John
Clark, Thomas H.
Davis, Samuel F.
Desmoine, Albert F.
Dixon, Wilbur C.
Drewry, Simon LeRoy
Elstrom, Adrian H.
Ernst, -D. S.
Eschman, Leo J.
Fisher, Merle E.
Francisco, Kenneth G.
Fredericks, Ralph A.
Goodhue, George
Green, Ernest K.
Griset, G. W.
Guider, Richard L.
Hagg, Edward
Hanlan, Harry W.
Husson, Walter R.
Jackson, Edw. L.
Jackson, Harry
Jatta, Arthur James
Jennings, Oma
Jepsen, Neil E.
Jessen, Wm. N.
Johnson, Leonard J.
Jorns, Victor C.
Kraus, Rudy
Kress, H. E.
Lackten, A. S:
so Appears as James Saletta on the list of shop stewards submitted by the U. A. W.
The only Saletta on the August 1937 pay roll is F R Saletta His uncontradicted testi-
mony is that he was a steward in the plant from April 1937 to the September 1937 lay-oft.
FORD MOTOR COMPANY 919
Langdon, Edmund H.
Lemos, Manuel
Lopes, Anthony E.
Lutz, Fred J.
Lynch, Orville A.
McElhaney, J. L.
McFarland, Wm.
Mathis, Hanley
Minor, Wm. D.
Minshall, Chas. H.
Mitchell, Thomas L.
Mottarella, Dominic
Neuhauser, Tom
Norvell, Martin Wade
Nystrom, F.
Palassi, John
Paulazzo, Attilio
Payne, Fred L.
Payne, Wm. M.
Peeler, Chas. H.
Petri, Joseph Albin
Philpot, Thomas
Porter, Clayton H.
Prozak, Bob
Pryor, Gilbert C.
Ralston, David W.
Remington, C. E.
Reprince, Frank
Requena, Oscar R.
Rhodes, A. C.
Riep, Cyril
Runyan, R. H.
Selak, Wm.
Shiman, Jack D.
Silva, Harry A.
Sousa, Martin J.
Tackley, Russell H.
Terlip, J., Jr.
Thorsen, Carl
Tressmer, Al
Trucks, Flen O.
Vincent, Harry A.
walcott, Edw. J.
Walter, Harry A.
Watts, R. W.
Westerman, Harry
Wetzel, Martin
Woodruff, E. C.
Xavier, L. F.
Zabelin, Nick
Zarucchi, D. M.
2. Dismissed by Trial Examiner
Brothers, Roy E. Palermo, Phillip
De Soto, Arch M. Peralta, Hubert A.
Hall, John E. Riep, C. J.
Lathrop, Kirk E.' Wilson, Wm. D.
McGlinchy, Chas. Wright, Joe P.
Nelson L. J.
3. Troy Cloinger (does not desire reinstatement)
f
APPENDIX C
Fry, Eugene D. McKenna, John
Khan, G. M. Thompson, James
Little, Orea N. Thompson, John
Mills, E.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MR. WnLIAM M. LEisEasoN, concurring in part and dissenting in
part :
I concur in the entire Decision and Order except in so far as it
sustains the complaint in 14 cases of alleged discrimination in which
the Trial Examiner recommended dismissal and in which no excep-
tion was taken to his recommendation. With respect to these 14,
I would, dismiss the complaint.