Ford Motor Co.

National Labor Relations Board - Board Decisions

Apr 29, 1940

23 N.L.R.B. 342 (N.L.R.B. 1940)

In the Matter of FORD MOTOR COMPANY and UNITED AUToMornI i WORKERS OF AMERICA, LOCAL No. 325 Cases Nos. R-766 and C-807-Decided April 29, 1940 Automobile tndnstry-Procedure: contention of denial of due process, without merit ; full and fair hearing accorded ; conduct of Trial Examiner as complained of, not prejudicial-Iuterfeience, Restraint, and Coercion: distribution of anti- union pamphlets, contention of right of free speech, without merit; activities in connection with circulation of statements of satisfaction, responsibility for activities of assistant foreman in soliciting signatures ; denial of the right of employees to wear union buttons-Unit Appropriate for Collective Bargaining: all production employees including maintenance employees , excluding employees having power to hire or discharge, foremen, assistant foremen, subforemen, leaders and pushers, clerical and office employees, watchmen, and zonemen- Rcpresentatitics: proof of choice : membership records checked against pay roll- Collective Bargain-nq: refusal to meet with collective bargaining representatives; ordered to bargain upon request-Di.scrrm.rnation: refusal to reinstate 8 union members, and lay-off of 11 union members because of union activities; failure to reinstate 53 union officials ; failure to reinstate 22 union members because of outstanding union activities, charges in regard to hire and tenure not sustained as to 108 employees-Ctrikc: result of employer's unfair labor practices-Com- pany-Dominated Union: domination of and interference with formation and ad- ministration; activities of an employee whose job includes duties ordinarily performed by a personnel officer ; action of plant officials in joining ; meetings held in plant; disestablish, as agency for collective bargaining-Investigation of Repre- sentatives : petition for, dismissed in view of order to bargain-Reinstatement Ordered-Back Pay: awarded Mr. Gerhard P. Van Arkel, Mr. Alan, F. Perl, and Mr. Joseph, A. Hoskins, for the Board. McDonald, Bartlett cQi Muldoon, by Mr. Daniel Bartlett, and Mr. Thomas F. Muldoon, of St. Louis, Mo., Cravath, deGersdorff, Swaine & Wood, by Mr. Frederick H. Wood, and Mr. Alfred McCormack, of New York City and Colombo, Colombo cC Colombo, by Mr. Louis J. Colombo, of Detroit, Mich., for the respondent. Mr. John L. Sullivan and Mr. Claude 0. Pearcy, of St. Louis, Mo., and Mr. L. S. Davidow, of Detroit, Mich., for the Union. Mr. William A. Allen, of St. Louis, Mo., for the Legion. Mr. Herbert Fuchs and Miss Ann Landy, of counsel to the Board. 23 N. L R. B., No. 28. 342 FORD MOTOR COMPANY DECISION AND ORDER STATEMENT OF THE CASE 34 Upon charges and amended charges duly filed by United Automobile Workers of America, Local No. 325, herein called the Union, the Na- tional Labor Relations Board, herein called the Board, by the Re- gional Director for the Fourteenth Region (St. Louis, Missouri), issued its complaint dated November 30, 1937, against Ford Motor Company, St. Louis, Missouri, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act.' On November 30, 1937, the Union filed with the Regional Director a petition alleging that a question affecting commerce had arisen con- cerning the representation of employees of the respondent and re- questing an investigation and certification of representatives pursuant to Section 9 (c) of the Act. On the same- day the Board, acting pur- suant to Section 9 (c) of the Act and Article III, Section 3, of Na- tional Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation and directed the Regional Director to conduct it and to provide for an appropriate hearing upon due' notice. The complaint and the petition for investigation and certification, with notices of hearing thereon, were duly served upon the respond- ent and the Union. On December 6, 1937, the respondent filed an answer to the complaint, admitting certain allegations therein as to the nature of the respondent's business but denying the alleged unfair labor practices. On-December 15, 1937, the Board, acting pursuant to Article III,. Section 10 (c) (2), and Article II, Section 37 (b), of the Rules and Regulations, ordered that the proceeding involving unfair labor prac- tices and the proceeding involving investigation and certification of representatives be consolidated for the purpose of hearing. Pursuant to notice a hearing was held in the consolidated proceed-- mugs at St. Louis, Missouri, from December 16, 1937, to April 9, 1938, before Tilford E. Dudley, the Trial Examiner duly designated by the Board. St. Louis Division of the Liberty Legion of America, Inc.,. 1 An amendment to the complaint on December 10, 1937, added the allegation that the respondent engaged in unfair' labor practices within the meaning of Section 8 (5)' of the Act 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, herein called the Legion, a labor organization of the respondent's em- ployees, intervened in the proceedings pursuant to leave granted by the Trial Examiner. The Board, the respondent, the Union, and the Legion were represented by counsel and participated in the hearing. Before the close of the hearing the Board had twice amended its complaint,2 and the respondent had filed two amended answers and an amendment thereto.3 With respect to the unfair labor practices the complaint, as finally amended, alleged in substance : (1) that the respondent dominated and interfered with the formation and adminis- tration of a labor organization known variously as the "Ford Service Workers," "The Ford Loyalty Group," or the "Liberty Legion of America, Inc.," and contributed support to it; (2) that the respondent discouraged membership in the Union by discharging, laying off, and refusing to rehire 278 named employees because they joined and as- sisted the Union; (3) that although a majority of the respondent's employees in a unit appropriate for the purposes of collective bargain- ing had designated the Union as their bargaining agent, the respondent on October 19, 1937, and at all times thereafter refused to bargain col- lectively with the Union; and (4) that by the foregoing and other specified acts 4 the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The amended complaint alleged further that on or about November 24, 1937, as a result of the respondent's alleged unfair labor practices, many of the respondent's employees ceased work and went on strike. The respondent's answer, as finally amended, in substance denied the alleged unfair labor practices. In addition it asserted affirmative defenses to the allegations of discrimination and defenses to the rein- statement of persons named in the complaint which are hereinafter discussed. The Legion filed an answer at the hearing denying that it is em- ployer-dominated. In the course of the hearing the Trial Examiner granted the Board's motion to dismiss the complaint as to those employees named therein who, subsequent to reinstatement by the respondent, left their work to 2 The complaint was amended on December 10 and on December 29, 1937. 3 The answer was amended on December 16, 1937, January 5, and March 22, 1938. 4 Acts of interference , restraint , and coercion alleged in the complaint included threat- eninc eml loyees with dis harge for wearing union buttons , circulating "statements of sati'faction" for signature by employees, threatening employees with discharge for re- fusal to sign such statements , threatening to shut down the plant unless the majority of the employees signed such statements , exercising surveillance over the organizational activities of employees, employing aimed guards for the purpose of intimidating its em- plovees in the exercise of their rig '- t to organize , disseminating propaganda among employees for the purpose of discrediting the leadership of the Union , and circulating statements among employees discouraging and discrediting the right of employees to self-organization. FORD MOTOR COMPANY 345 go on strike, and the respondent's motion to dismiss the complaint as to employees named therein who had been reinstated by the respondent and were working for the respondent at the time of the hearing. Later, in his Intermediate Report, he applied the former ruling to 49 em- ployees and the latter to 22. Both rulings and their application are hereby affirmed. Further, the Board affirms the ruling of the Trial Examiner at the hearing in dismissing the complaint as to five per- sons named therein but found not to have been employees of the re- spondent. There remained for consideration at the close of the hear- ing 202 cases of alleged discrimination. At the hearing the Trial Examiner ruled upon numerous other motions and numerous objec- tions to the admission of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Trial Examiner filed his Intermediate Report on July 2, 1938. In it he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the Act and that a strike of the respondent's employees which began on No- vember 24, 1937, was caused by the respondent's unfair labor prac- tices. He recommended that the respondent cease and desist from the unfair labor practices found, and take certain affirmative action in order to effectuate the policies of the Act.' As to two employees he recommended dismissal of the complaint. He recommended further that the respondent's exhibits Nos. 60, 61, 62, and 63, as to the admis- sion of which he had reserved ruling at the hearing, be admitted in evidence. That recommendation is hereby adopted and the exhibits are received. Thereafter the Union filed exceptions to the Intermediate Report, the respondent filed exceptions to the record and to the Intermediate Report, and both requested oral argument before the Board. A hear- ing for the purpose of oral argument was accordingly held before the Board at Washington, D. C., on November 23, 1938. The respondent and the Union were represented by counsel and participated in the argument. The respondent and the Legion filed briefs with the Board. The respondent excepted to substantially every adverse ruling made by the Trial Examiner at the hearing. In its brief it asserts that the Trial Examiner's "misconduct" at the hearing, as evidenced in its 209 numbered exceptions to his ruling, (1) constitutes, in the case of each I In substance the Trial Examiner recommended that the respondent withdraw recog- nition from and completely disestablish the Legion as the,bargaining representative of any of the respondent 's employees ; upon request , bargain collectively n ith the Union ; offer immediate reinstatement with back pay to 96 employees ; reinstate upon applica- tion 47 additional employees and all employees ( including 49 as to whom he had dis- missed the complaint at the . hearing ) who left their work to go on strike ; and reinstate 57 other employees when need for their services should arise X46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ruling, prejudicial error, and (2) indicates such "bias and prejudice" on the part of the Trial Examiner as 'to compel the conclusion that the respondent was deprived of a full; fair, ' and- open hearing. We have already indicated that we find the Trial Examiner's ruling to be free of prejudicial error. The hearing lasted 90 days, of which 59 were consumed by the respondent in calling more than 500 witnesses in its defense. The Trial Examiner's conduct of the entire hearing is characterized by fairness and impartiality. Upon full consideration of the record and the exceptions thereto we find that at the hearing all parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. The respondent's exceptions to the conduct of the hearing and to the Trial Examiner's rulings are overruled. The Board has fully considered, also, the respondent's and the Union's exceptions to the Intermediate Report and'the briefs filed by the respondent and the Legion and, in so far as the exceptions are inconsistent with the findings of fact, conclusions of law, and order below set forth, finds them to be without merit. Upon the entire record in the case the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a Delaware corporation. It is engaged primarily in the manufacture, assembly, sale, and distribution of automobiles. Its manufacturing operations are performed in various cities through- out the States of Michigan, Ohio, and Minnesota, and in foreign coun- tries. The manufactured parts are then shipped by the respondent to its numerous assembly plants located in various States, including one at St. Louis, Missouri. Th3 respondent also operates glass fac- tories, steel plants, coke ovens, railroad lines, steamships, a paper mill, a foundry, a cement plant, and other similar plants in connection with its automobile business. We are concerned here only with the St. Louis assembly plant. Dur- ing normal production the St. Louis plant assembles 185 automobiles per day. Ninety-five per cent of the required materials for this plant are furnished by the respondent's Michigan plants. Approximately two-thirds of the finished products are shipped to points outside the State of Missouri. The plant normally employs approximately 900 production workers. The respondent admits it is engaged in interstate commerce. II. THE LABOR ORGANIZATIONS INVOLVED United Automobile Workers of America, Local No. 325, is a labor organization affiliated with the Congress of Industrial Organizations. FORD MOTOR COMPANY 347 It admits to membership employees of the respondent's St. Louis assembly plant. St. Louis Division of the Liberty Legion of America, Inc., is a labor organization admitting to membership employees of the respondent's St. Louis assembly plant. It is affiliated with the Liberty Legion of America, Inc., a labor organization which originated among the re- spondent 's employees at Dearborn, Michigan , and admits to member- ship employees of the respondent and of other employers. III. THE UNFAIR LABOR PRACTICES A. Chronology of events On April 5, 1937, a group of the respondent 's employees , most of whom had previously been employed by the Chevrolet Motor Com- pany and were members of Local No. 25 of the United Automobile Workers of America, decided to attempt a union drive among Ford employees in St. Louis and set up a temporary organizing committee at the plant. On the following day the respondent discharged Jess Olive, a member of the temporary organizing committee. The com- mittee promptly called upon Paul S. Mabie , superintendent of produc- tion, to protest Olive's discharge . Mabie indicated that he could do nothing in the absence of his superior , Plant Manager Milton N. Johnson. Upon the arrival of Johnson he was apprised of the sit- uation and responded to the committee 's statement by immediately discharging each member of it. Before the men had left the plant, however, Mabie, who disagreed as to advisability of discharging the men, persuaded Johnson to reverse his decision . The committee was accordingly reinstated , and Olive, too , was returned to his job shortly thereafter . Immediately upon the occurrence of the foregoing in- cident it became notorious throughout the plant . It served notice on the employees of Johnson 's intolerant attitude toward employee self-organization. Mabie's attitude appears to have differed from Johnson 's primarily in that if there was going to be a show-down with the Union, Mabie meant to defer it until the summer when it would not interfere with production. On April 8, 1937, the Globe-Democrat , a St. Louis newspaper, pub- lished a statement attributed to Henry Ford, the respondent 's presi- dent, commenting on the events of the previous day at the St. Louis plant in which Ford was quoted as saying : "We'll never recognize the United Automobile Workers' Union or any other Union . . . They (the workers ) are being organized and had their freedom taken' away . . . They'll pay money to the unions and get nothing in re- turn . . . Our men know what we can do and what we can't do. We'll deal with them individually." 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In July 1937, the respondent's watchmen distributed to the plant employees pamphlets entitled "FORD GIVES VIEWPOINT ON LABOR," which restated and emphasized the views published in the Globe- Democrat. Except as just set forth, the respondent did not interfere with union activities at the St. Louis plant during the months immediately following the Jess Olive incident. Mabee who was left in charge of labor relations at the plant, "didn't anticipate that the union organi- zation would get anywhere." But, following the successful adjust- ment of Olive's discharge the organizational activities gained momen- tum, and soon the temporary organizing committee, having recruited a sufficient number of members, applied for and obtained a charter from United Automobile Workers of America and established Local No. 325, thereof, with jurisdiction over the respondent's employees at the St. Louis plant. The organizing drive continued through the summer of 1937 and, by September 15, more than 750 of the respond- ent's employees had signed application cards for membership in the Union. During this time Mabie met frequently with the officers and the various committees of the Union to adjust grievances. Johnson, the plant manager, seeing the growth of the Union, was dissatisfied with Mabie's method of dealing with that organization. Each fall the respondent shuts down its automobile assembly plants throughout the country in order to prepare for the production of the next year's model. The St. Louis plant, in 1937, began shutting down on September 9, and production ceased altogether on September 15. During such shut-downs the plant is not completely closed. In addi- tion to office workers and other salaried employees, members of the service department, and service stock and maintenance men are re- tained to safeguard the plant, furnish service to dealers, and do repair, maintenance, and construction work preparatory to the assembly of the new model. A number of assistant foremen and some ordinary production workers are also retained for these purposes. In 1937, from September 22 through October 26, the number of hourly em- ployees averaged about 155 per day. The fall shut-downs generally last about 6 weeks ; however in 1937 the St. Louis plant was 2 weeks late in resuming production. In the first week of September 1937 a union committee and Mabie discussed the annual fall shut-down and agreed that the employment of the men would not be terminated as in the past, but that they would be laid off and would be recalled as operations were resumed and that they might retain their Ford badges upon leaving a deposit .6 E Mabie admitted at the hearing that the plan to recall employees as their operations started was not followed by the foremen "as close as they should have. " It appears, moreover , that when Mabie agreed to permit the employees to retain their badges the respondent had already determined to adopt a new type of badge upon resumption of production. FORD MOTOR COMPANY 349 The committee also requested that its members be given work during the shut-down in order to enable them to represent such union men as would be working in the plant. It was agreed that the members of the committee would be given some work during the shut-down but the length of such employment was not definitely settled. The committee was in fact given work for several days at the beginning of the shut-down. On September 20, however, approximately half of the committee was laid off, to be followed 2 days later by the other half. Among the committeemen so laid off were two painters and one carpenter who would normally have been employed at mainte- nance work throughout the shut-down. With the shut-down Superintendent Mabie's authority to deal with the Union was revoked and the respondent's relations with the Union came to an end. The Union's attempts to bargain with the respond- ent after September were unsuccessful. The wearing of union but- tons ceased at the plant. Union members were solicited by assistant foremen and others to sign statements signifying their satisfaction with the respondent's wages, hours, and working conditions. On October 25, 1937, after 6 days had elapsed without any reply to a telegram requesting the respondent to enter into negotiations, the Union filed charges with the Board. At a meeting held on No- vember 7, 1937, the union membership empowered its officers to call a strike against the respondent at any time "they deemed it necessary, provided the sanction of the international office was first obtained. Although the number of employees in the plant gradually increased from 233 on November 1 to 586 on November 23, on the latter date only 2 of 59 union officers had been reinstated. Other employees who expressed their loyalty to the Union by wearing union buttons, and in other ways, were not recalled. The respondent's refusal to deal with the Union continued and consequently the union officers issued a strike call at a meeting held on the evening of November 23, 1937. The strike went into effect the same night, and the plant was picketed. Some of the employees working in the plant and others who had not yet been reinstated joined in the strike. The plant operated throughout the strike. On November 24, the first day of the strike, the number of employees in the plant fell from 586 to 518, but it thereafter increased and by January 1938 had risen to 600. On November 30, 1937, the Legion began its organizational efforts, 592 employees of the respondent signing application cards on that day. On December 16, 1937, the hearing in this case began before the Trial Examiner. The strike which started on November 24, 1937, was still 'current at the close of the hearing in April 1938. 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Interference , restraint, and coercion 1. Distribution of anti-union pamphlets During July 1937 the respondent's watchmen distributed to the plant employees a pamphlet, printed by the respondent , entitled "FORD GIVES VIEWPOINT ON LABOR." The pamphlet car- ries the caption "Ford ... Cautions Workers on Organization," and clearly manifests the respondent 's open and active hostility to labor organizations . It is replete with statements such as the following : A monopoly of jobs in this country is just as bad as a monopoly of bread. Sometimes we catch people here in Detroit "selling" jobs, at the Ford Motor Co. by making ignorant persons believe they have a "pull" with us . . . This was done by crooks and they were properly dealt with. But, now along comes another group that says : "There are 100,000 jobs out at Ford's. If you want one of them, pay us a registration fee, and so much every month, and we will pass you in, and you can work as long as you pay us. " This group is ask- ing us to sit still while it sells our men the jobs that have always been free . If we agreed to this, they would have complete control of American labor , a control no one has ever before had. .. What was the great result of those strikes ? Merely that numbers of men have put their neck into an iron collar. I am only trying to show them who owns the collar .. . A little group of those who control both capital and labor will sit down in New York , and they will settle prices , and they will settle dividends , and they will settle wages . . . The Wagner Act is just one of these things that helps to fasten control upon the necks of labor. Labor doesn 't see that yet. It thinks the Wagner Act helps it. All you have to do is to wait and see how it works. It fits perfectly the plans to get control of labor. I have never sought to prevent our men from joining any asso- ciation-religious , racial , political or social . . . No one who believes in American freedom would do that . When our men ask about unions, I give them the same advice as when they ask about any of the other schemes that are always being aimed at men's wages . I say to them : "First, figure out for yourself what FORD MOTOR COMPANY 351 you are going to get out of it. If you go into a union, they have got you, but what have you got?" We think 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. Or, whether any union can do more for them than we are doing. If union leaders think they can manage an automobile factory better than we can, and pay better wages under better working conditions than we can, why don't they build a factory of their own and show us up? They have the capital-they have all the money they need and a lot more. The country is big; they have the men; and think of all the union customers they would have! If the union leaders are sincere, they should go into business themselves. If they have thought out a better way to manage business, let them demonstrate what it is. If they can't do that, why do they pretend they can? Of course, the financial interests that use strikes as a way to build up unions, would not permit them to build new factories- big, 'progressive factories with everything in them that union leaders now demand. They don't want that. They want control. I 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 simply the two ends of the same rope. To have one, you have got to have the other. You may say as emphatically as you like, that all this does not disturb me in the least. I know the scheme is wrong, and it will not work. Whether the words or actions of an employer constitute interference, restraint, or coercion, within the meaning of the Act, must be judged, not as an abstract proposition, but in the light 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 ad- dressed 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 lie so if the relations of master and servant did not exist." 7 In the Virginian Railway I N. L. R. B. v. Falk Corp ., 102 F. ( 2d) 383 (C. C. A. 7), aff'd 308 U. S. 453. 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 employee, de- pendent upon his employment for means of livelihood, 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.8 Here the pamphlet was distributed to the respondent's employees 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 respond- ent expressed bitter opposition to labor organizations. We think that the pamphlet made it clear to the employees, not only that the respondent was uncompromisingly hostile to the Union, but that the respondent might be expected to take positive measures to make its opposition effective. Thus the caption on the outside of the pam- phlet-"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 it 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 re- spondent had no intention of accepting or tolerating the Union, and that the employees could expect to achieve self-organization only by overpowering their employer through economic action.9 We find that the distribution of the pamphlet by the respondent to its employees was intended to have, and did have, the effect of interfering with, restraining, and coercing the respondent's employ- ees in the exercise of their right to self-organization and collective bargaining. The respondent contends in substance : (1) that in the circulation of the pamphlet it was exercising the right of free speech guaranteed by the First Amendment to the Federal Constitution, and (2) that the legislative history of Section 8 (1) of the Act indicates that Congress purposely left employers free to influence their employees 8Virginian Ry. Co. Y. System Federation No. 40, 84 F (2d) 641 ( C. C. A 4 ), aff'd 300 U S 515. O 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. FORD MOTOR COMPANY 353 in the exercise of the rights- guaranteed in Section 7 as long as em- ployers 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 pi esented, find them to be without merit. The respondent's right to fr 'edom 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.10 By its distribution 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 argument 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." 11 On the contrary it was issuing a stern warning that it was bitterly opposed to the Union and that it would thiow the weight of its economic power against the efforts of its employees to form or carry on such an organization. The respond- ent's right so to interfere with, restrain, and coerce its employees is not sanctioned by the First Amendment. As to the respondent's contention that the Act does not prohibit an employer from influencing his employees, it is clear, for the rea- sont; already stated, that the respondent's actions here constitute not mere influence but interference, restraint, and coercion, expressly for- bidden by the Act. In the light of the foregoing considerations, and upon the entire record, which portrays the systematic employment by the respondent of unfair labor practices directed against the Union, we find that the respondent, by distributing to its employees "Viewpoint on Labor," has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Statements of satisfaction During the shut-down, in October and November 1937, a large number of the respondent's employees were solicited to sign state- 10 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 Colten, 105 F (2d) 179 (C C A 6) , N L R B v Iropwood Retin- ning Co, 98 F. (2d) 97 (C C A 2) ; Virginia Ferry Corp v N L R B, 101 F (^d) 103 (C C A 4) ; N. L R. B v. Stackpole Carbon Co.. 105 F: (2d) 167 (C C. A. 3 ), cert. den. 60 Sup. Ct. 142 ; 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 11 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 (310 U. S 88, 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-" 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ments reading substantially as follows.- "We are satisfied with the hours, wages, and working conditions at Ford Motor Company." Some of the statements expressed satisfaction also with the respond- ent's labor policies. The statements achieved the widest circulation. Solicitation was carried on at the plant, during working hours as well as at lunch periods, among employees who had been recalled to work or who worked through the shut-down. To a large extent, also, laid-off em- ployees awaiting the call to return to work were solicited in their homes. The record requires the conclusion that by November 23, the eve of the strike, substantially all the employees, whether laid off or working, had been made aware of the movement which the statements symbolized. Original responsibility for the statements of satisfaction was claimed at the hearing by Gus Krummel, an ordinary employee. He testified that he, John Bertke, and Joseph McConnell, two fellow .employees, after discussing their dislike of the Union and the desira- bility of initiating a rival organization, determined to sound' out sentiment among the men. They arranged to circulate the statements .of satisfaction in order to find out which employees were satisfied with existing working conditions in the plant and were willing to oust the Union. Krummel felt that by signing the statements the employees would indicate their dissatisfaction with the Union. Bertke thought that if they could sign up a substantial majority of the employees "in favor of conditions the way that they were" the necessity for any labor organization would be eliminated. Assistant Foreman Claude Eidson, who participated in the solicitation of sig- natures, testified that Krummel handed him a statement with the in- struction to "Take this out and get signers, see who is satisfied, go out and vote no strike." Assistant Foreman Tice Gurley who also solicited signatures testified that the purpose of the solicitation was to ascertain who was willing to repudiate the Union and who wanted to stay with it. Other witnesses had other understanding of the purpose of the statements and many who participated in the move- ment could give no reason for circulating or for signing. Notwith- standing much inconsistent and evasive testimony on the part of employees who solicited signatures to the statements, the record es- tablishes, and we find, that the statements of-satisfaction were circu- lated in order to instigate and canalize, as well as to record, opposi- tion to the Union among the plant employees. In addition to Krummel, Bertke, and McConnell, the group most active in this movement consisted of a number of the respondent's assistant foremen, also referred to in the record as "subforemen," "leaders," and "pushers." No foreman or higher official of the re- pondent is shown to have expressly authorized this activity or to FORD MOTOR COMPANY 355 have actually participated in it. It becomes important, therefore, to consider briefly the status of these assistant foremen. The plant employed 41 persons in the category of assistant fore- man.' All supervisory employees below the rank of departmental foremen were so designated, apparently without distinction.13 The power and responsibility of these employees varied widely. Several were evidently persons of considerable consequence in the plant and cannot accurately be termed mere "straw bosses." Thus, Assistant Foreman William Rabb served as assistant to General Foreman Bates and ranked above several other assistant foremen in the chassis department, exercising general supervision over its 165 employees. Rabb and the other assistant foremen in that department 14 met with Foreman Bates to determine which employees to recall after the shut-down. Assistant Foreman Grodie, who called himself a "leader in the enameling department," had complete charge of that depart- ment with three or four other assistant foremen under him and him- self made up the list of the men to be recalled to it after the shut-down. Assistant Foreman Goellner had under his supervision Assistant Foreman Reiners. Assistant Foreman Hussey had full charge of the 24 porters in the maintenance department and had at least one other assistant foreman under him. According to his un- contradicted testimony, Hussey determined who should be recalled after the 1937 shut-down, then handed the list to Superintendent Mabie and to the employment office. Assistant Foreman Edward Hanneken, a subforeman to Bragg, foreman of the body department, had 110 men in his charge. In all cases the assistant foremen served as the workers' first con- tact with the management. Departmental foremen generally relied upon them for information concerning the work of the men under their supervision and consulted them when selecting men for lay-off or reemployment. The assistant foremen knew the quality of the men's work and their recommendations were usually followed.15 12 The Trial Examiner listed 55 persons in this category . Three, however , ( Frank McDowell , Fred Spellmeyer , and Harold Tunsin^) are shov -n to be foremen , and 11 others (F Bauer, Everet Bricht. David Cook, Millard Caddy, William Hig_ins, Russel Jackson, P. R Kuhn, Stanley Maupin, Adrian Keena, 0 A Shaw, and Steve Valch]ch), although listed by the respondents as assistant foremen , testified that they were ordinary produc- tion employees . We accept their testimony as true The persons found by us to be assistant foremen are listed in Appendix III 13 Compare Matter of Ford Motor Company and International Union, United Automo- bile Workers of America, Local No 406, 18 N L R B 167, involving another automobile assembly plant of the respondent , where the record afforded a distinction between "assistant foremen " and "assistant working foremen " "Assistant Foremen Arthur Beal, Claude Eidson , Andrew Sivley , Wesley Gantz, and Gail Renick 15 The testimony of foremen ' and assistant foremen regarding the relative efficiency of individual production employees under their supervision clearly reveals the latter group to have been more familiar with the men and their respective operations than were the former. 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus, although the assistant foremen were without express authority to hire or discharge and although the wages of some assist- ant foremen were only slightly higher than those of ordinary produc- tion employees, we find, from the extent of their supervisory author- ity and the degree to which they participated in selecting men for reemployment, that the respondent delegated to them and they exercised substantial management functions. The record is clear that they were regarded by ordinary production employees as repre- sentatives of the management. The extent of the participation of these supervisory employees in the statements-of-satisfaction movement was considerable. Of the 41 persons found to be assistant foremen, 22, or about half, admitted at the hearing that they had either solicited signatures to the state- ments or advised employees to sign them, or in other ways had indi- cated to production employees the desirability of recording renuncia- tion of the Union. Among these are included Goellner, Hussey, and Hanneken, men who, as we have shown, exercised very important supervisory authority. Without resolving specific conflicts in the evidence we find that the number of assistant foremen who actually participated was somewhat larger. The number of employees ap- proached by each of the several assistant foremen ranged from 1 to 50. Generally these supervisors solicited employees under their own supervision. Some of the solicitation occurred at the plant, more was accomplished at the homes of men waiting to be recalled. In a number of instances, the assistant foremen told the employees that employment would be conditioned upon their signing. That condi- tion was necessarily implicit, we find, whenever the solicited indi- vidual was a laid-off worker awaiting reinstatement. Assistant Foreman Emerson recommended for reinstatement an employee who had signed a statement at his request; Assistant Fore- man Pettit refrained from recommending two men who refused his request that they sign, testifying that "they didn't have the qualities we desired in them"; Assistant Foreman Eidson reported to Fore- man Bates that two men solicited by Eidson signed a statement: Although most of the assistant foremen were not asked at the hearing whether information acquired in the course of their solicitation was taken into consideration by them in determining whom to recommend for recall, the record compels the conclusion that the attitude ex- pressed by employees who were solicited affected their chances of employment. The respondent contends in substance that the supervisory status of the assistant foremen was not such as to compel their exclusion from the bargaining unit; that they were sought as members by the Union, which a number of them joined; that they were within their rights as employees in opposing the Union; and that they did so FORD MOTOR COMPANY 357, from motives of personal resentment, uninfluenced by the respondent. It points to the fact that no foreman or higher official openly partici- pated in the movement or encouraged statements of satisfaction, and states that, "There is not a scintilla of evidence that anyone connected with the management knew at the time of the circulation of the `statements of satisfaction."' The assertion that the respondent's officials were ignorant of the activities under discussion is contradicted by the testimony of Plant Manager Johnson. After stating, "It is .a small compact plant and everybody knows everybody else's business," Johnson testified that be knew, before the strike, that a petition expressing loyalty to, or satisfaction with, the respondent was circulating among the em- ployees. We do not believe that the extensive participation of the assistant foremen in the statement-of-satisfaction movement can have escaped the notice of the plant officials. In any event, the assistant foremen exercised substantial employer functions. The coercive character of their activities during the shut- down derives in large part from the fact that they appeared to embody the respondent's economic power and to speak its will.", Neither their right to engage in concerted activities nor their eligi- bility to membership in the Union excuses the respondent's failure to restrain them from enlisting its prestige on one side of a representa- tion dispute.17 We accordingly find that the respondent, by the activities of its assistant foremen in soliciting signatures of the respondent's em- ployees to statements expressing satisfaction with the respondent's hours, wages, and working conditions, and thereby and in other ways instigating the respondent's employees to oppose or to abandon the Union, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.18 18 See Swift & Company v. National Labor Relations Board , 106 F (2d) 87, modifying and enforcing as modified Matter of Swift d Company, a Corporation and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No 61,1, and United Packing House Workers Local Industrial Union No 300, 7 N. L R B. 261) ; H J Heinz Company v. N L R B. 110 F ( 2d) 843 (C C A 6), enf'g Matter of H. J. Heinz Company and Canning and Pickle Workers, Local Union No. 325, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, American Fedeiation of Labor, 10 N L R. B 963 17 See International Association of Machinists , et at v N L R B (Serrick Corp ), 110 F (2d) 29 (App D C ), 5 L R. A 335, affirming Matter of The Seirick Corpora- tion and International Union, United Automobile Workers of America, Local No. 1,59, 8 N. L R B 021; Matter of Ward Baking Company and Committee for Industrial Organi- zation, 8 N L. R B. 558; Matter of Tennessee Copper Company and A F of L Federal Union No. 21164, 8 N. L R. B 575 ; 9 N. L R B. 117; Matter of Mt. Vernon Car Manu- facturing Company, and Local Lodge No 1756, Amalgamated Association of Iron, Steel if Tin Workers of North America, affiliated with the Committee for Industrial Organization, 11 N L R B 500. 18 We distinguish the instant situation from that in Matter of Ford Motor Company and International Union, United Automobile Workers of America , Local No 406, 18 N L R. B 167 , wherein we ascribed to the respondent anti -union statements of an "assist- ant foreman" but absolved it of responsibility for activities , similar to those above con- 283031-..l1-vol 2:t-24 358- n DECISIONS OF '.NATIONAL.. LABOR -RELATIONS BOARD 3. Denial of the right to wear union buttons Prior to the 1937 shut-down union members wore buttons evidenc- ing their membership and payment of dues without interference. Thereafter the buttons completely disappeared from the plant. Em- ployees wearing this insignia of continued union membership when reporting at the plant failed to obtain reinstatement, and men who had been reinstated were ordered from the plant if they pinned on their buttons." The case of Norman L. Miller is illustrative of respondent's inter- ference with the wearing of union buttons. Miller received a letter on November 2, 1937, asking him to report for work. He reported the following morning wearing his union button. While waiting for Factory Service Manager Gantner, Miller was approached by his assistant foreman, Edward F. Gramlich, who told him to go upstairs and check over some stock as soon as his time was made out, and added: "If you want to go to work you better get rid of that button." Notwithstanding this warning, Miller continued to wait without re- moving the button. A few minutes later the watchman told him that there was no work that day for him. Miller was subsequently rein- stated and was a witness for the respondent at the hearing. In spite of his obvious reluctance to recall the foregoing incident, his testimony substantiates signed statements which he gave the Union on November 3, 1937, and which relate the occurrences above set forth. The respondent in its brief denies any interference with the wear- ing of union buttons and claims that after such charges were brought to its attention it questioned the assistant foremen and the charges were denied. However, Personnel Manager Miller testified that the assistant foremen were not questioned and the foremen were ad- dressed in a group and not asked individually. Furthermore, when during a conference between a union committee and Gantner on November 5, 1938, the committee requested Gantner to call some of the foremen and have them deny that they had been instructed to prohibit the wearing of buttons, Gantner refused. We find that the respondent by prohibiting its employees from wearing .union buttons in the plant interfered with, restrained; and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. sidered, on the part of "assistant working foremen " The distinction is found principally in the high de^ree of superiisory authority shown to have been exercised by a number of the assistant foremen here involved, and in the extent , both numerically and in propor- tion to the total number of assistant foremen employed , to which they engaged in the anti-nion activities. "Eight cases of discrimination against employees for wearing buttons are discussed in Section III, D, 3, a below FORD' MOTOR COMPANY 359 C. The refusal to bargain collectively 1. The appropriate unit At the hearing counsel for the Board, the Union, and the Legion entered into a stipulation providing that all production employees at the plant, including maintenance employees and subforemen, but excluding employees having the power to hire or discharge, clerical and office employees, departmental foremen, watchmen, and zonemen, constitute a unit appropriate for the purposes of collective bargain- ing. Counsel for the respondent refrained from joining in the stipu- lation; stating : "It is up to- the.,Board to determine after hearing evidence of the parties who are familiar with these classifications, and passing upon the desirability or validity of such an agreement. That is up to the Board after hearing such evidence." In his Intermediate Report the Trial Examiner concluded that the respondent's subforemen (also called assistant foremen, leaders, and pushers) should be excluded from the bargaining unit because of their supervisory status. In all other respects his finding of appro- priate unit follows the above stipulation. The respondent alone has excepted to the exclusion of the subforemen. For the reason stated in our discussion of the status and activities of the respondent's assistant foremen '21 we agree with the Trial Examiner's conclusion and find that, notwithstanding the Union's 21 express agreement to their inclusion, the assistant foremen are prop- erly outside the bargaining unit." We find that all production employees of the respondent at its St. Louis plant, including maintenance employees, but excluding employees-having power,to hire or discharge, foremen, assistant fore- men, subforemen, leaders, and pushers, and clerical and office em- ployees, watchmen, and zonemen, constitute a unit appropriate for the purposes of collective bargaining, and that said unit insures to employees of the respondent the full benefit of their right to collec- tive bargaining and otherwise effectuates the policies of the Act. 2. Designation of the Union by a majority in the appropriate unit a. Si'ze,, u d composition of the unit. The respondent's pay roll for September 5, 1937, contains the names of 892 employees, of whom 837 were within the appropriate unit.',' eD See Section III, B , 2 above. ' We hereinafter find the Legion to be an employer -dominated labor organization. Accordingly , its desires regarding the bargaining unit are given no weight. 99 The 41 men in this category are listed in Appendix III. sa we have excluded 3 foremen ( Frank McDowell , Fred Spellmeyer , and Harold Tunsing), 11 watchmen ( Alexander F. Berthel, Patrick F. Coleman , Vasco Cortopassi , D J Cottle, Joe E . Hoffman, Theo . F. Hofineister , Wm. T. Huitt, Henry Korte , Wm. E McDonough, Peter J Polizzi , Jr., G. E. Riegert ) and 41 assistant foremen ( Appendix III). 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find, below , that oil October 19 , November 3 and 5, and Deceln- ber 1 and 7 , 1937, the respondent refused to bargain with the Union. As we shall demonstrate , no material change in the size or composi- tion of the appropriate unit took place between September 15 and December 7. Although the plant shut down on September 15 and did not resume production until the middle of November , we find that production workers who received no work assumed the status of laid-off employ- ees and had a reasonable expectation of reinstatement . 24 The re- spondent's discrimination against some of them 25 could not deprive the workers of their status as employees under the Act. The respondent 's own employment records support our view that the employee status continued , for the respondent did not attempt to alter that status upon its books until December 23.211 Prior to November 1, 1937, the respondent hired no new employees. Thereafter it hired 10 before the strike, and 81 while the strike was in progress . We accept as true the respondent 's contention that it called workers to employment as rapidly as production required. We find below that in the period in which the respondent hired these new employees it discriminatorily denied employment to 94 union members '27 and further that the strike which began on November 24 was caused by unfair labor practices of the respondent . 21 In the circumstances we infer that all 91 new employees hired by the re- spondent took the places of workers who had been discriminated against, or of strikers whose strike was caused by unfair labor prac- tices , or both, and find that their tenure of employment is subject to the right of such old employees to reinstatement.2° They are not part of the appropriate unit. 2t Many of the production workers had experienced similar seasonal lay-offs in earlier years and were accustomed to being recalled to work as production resumed See North IVhtttier Heights Citrus Association v. N L. R. B., 109 F . (2d) 76 (C C. A 9 ), enforcing Matter of North, Whittier Heights Citrus Association and Citrus Packing House Workers Union , Local No 21091, 10 N. L. R. B. 1269, where the Court sustained the Board in its holding that a lay-off because of a temporary shut-down did not sever the relation of employer and employee 23 See Section III, D, infra. 28 Pursuant to an instruction from the respondent's Deaiborn , Michigan , office, dated October 13, 1937, and referred to in the record as "Medical Letter No 3," the plant offi- cials on December 23, 1937, terminated the "active" employment status of most of the production employees who had then not yet been recalled The instruction states that employees " laid off over one month " shall receive a physical examination before returning to work ; that in the event of special instructions from the Dearborn office the period may be p:olonged to 3 months. 27 Section III, D, infra. 28 Section III , E, infra 2° See N L R. B V. Remington Rand, Inc, 94 F (2d) 862 (C C A 2d) cert denied 304 IJ S 576, enf'g Matter of Remington -Rand, Inc and Remington Rand Joint Protective Board of the District Council Office Equipment Workers , 2 N L R B 626, Black Diamond S S Corporation v. N. L. R. B., 94 F. ( 2d)' 875 (C. C: A. 2), cert denied 304 U. S. 579, enf'g Matter of Black Diamond Steamship Corporation and Marine Engineers ' Beneficial" 9 ssociat ion, Local No 33, 3 N L R B 84 FORD MOTOR COMPANY 361 We hereafter find that the respondent properly terminated the employment of a few employees 3o for their failure to report to work upon call before the strike. As will appear, the adjustments necessi- tated by these terminations do not affect our conclusions regarding the Union's majority as of any of the dates upon which a refusal to bargain occurred. For the purposes of this discussion they are disregarded. b. The proof of majority; the Trial Examiner's finding The Union produced its original membership records at the hear- ing and made them available to all parties for examination. A sum- mary of the records, showing the names of members and the last month for which each paid dues, was introduced in evidence. From the summary it appears that 790 persons applied for membership in the Union.31 It further appears that 724 such persons 32 were within the appropriate unit and were listed on the respondent's September pay roll. The Union's claim of majority designation thus rests, in substance, upon its showing that 724 out of 837 employees in the appropriate unit had designated it as their representative. At the hearing the respondent claimed that many employees had joined the Union only as the result of violence, intimidation, threats, and duress. A large number of the men who signed applications for membership in the Union testified regarding the circumstances under which they joined and subsequently paid dues. In his Intermediate Report the Trial Examiner found that the evidence concerning 151 of the 724 persons in the appropriate unit who had applied for membership in the Union was insufficient to support the conclusion that the Union was their designated bargain- ing representative throughout November 1937.33 Without indicating the specific reason applicable to each case, he predicated his findings as to all these men upon the presence of one or more of the following circumstances : 34(1) They failed to pay dues subsequent to July 1937; (2) They failed to pay an initiation fee; 30 Appendix II, A. 31 The entire record requires the conclusion that all the persons who signed applications did so prior to the September 1937 shut-down 32 The 66 persons included in the summary of the Union 's membership records but not in the appropriate unit comprise 30 assistant foremen, and 36 individuals who, on Sep- tember 15 , 1937, were not employees of the respondent 33 The Trial Examiner listed 205 names in this category. We have reduced it by 52 by eliminating 2 duplications , 21 assistant foremen , and 29 persons who were not employees of the respondent on September 15, 1937. 3! The Union 's constitution states that applications must be accompanied by the initia- tion fee; that all dues and assessments are payable on or before the first day of each month ; that any member who fails to pay dues and assessments for a period of 3 months shall be automatically suspended by the end of the third month ; and that during unem- ployment strikes, or lock-outs, members may be released from the payment of dues. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3) They failed to join and pay fees voluntarily, but signed appli- cation cards and paid fees under duress. As to the remaining persons in -the appropriate unit' whose' names appear in the summary of the Union's records, the Trial Examiner- found that they joined the Union voluntarily and were members in good standing throughout November 1937. The Trial Examiner's conclusions, as adjusted, amount to a finding that 571 out of 837, persons in the unit had designated the Union as their bargaining representative. c. The respondent's contentions; conclusions regarding majority designation of the Union The respondent's objections to the Trial Examiner's finding as to majority designation may be summarized as follows : (1) That in addition to 151 persons excluded by the Trial Exami- ner in his computation, 133 others in the appropriate unit are shown to have been coerced into joining the Union and must be excluded from the Union's claims; (2) That in the light of the testimony indicating that workers were coerced into joining the Union, uncorroborated documentary evidence of the union membership of 77 persons who did not testify at the hearing should be rejected; 3,1 and (3) That persons at work in the plant who failed to respond to the Union's strike call of November 23, 1937, thereby repudiated the Union as their bargaining representative and must be excluded from computation of its majority. We shall briefly discuss each con- tention. Of the 133 additional persons claimed by the respondent to have been coerced into joining the Union, 68, by their own testimony, completely negate any suggestion of duress in joining. Some of these men testified that they joined the Union voluntarily; the others that they joined it because they were so frequently requested to do so by fellow workers. The remaining 65 testified that they joined "in order to avoid trouble" or because of threats and intimidation by union men by whom they were solicited. Much of this testimony is vague and general in character; all was elicited at the respondent's instance, in the presence of the respondent's officials, after the re- as The respondent excepted to the Trial Examiner's alleged refusal at the hearing to per- mit it to show that eliorts had been made to intimidate, coerce, or dupe a particular worker into joining , or continuing as a member in, the Union unless such person had in fact joined In its brief it contended that such refusal constituted prejudicial error Review of the portions of the record cited in the exception reveals , however, that such evidence was admitted in every instance in which it was offered, as tending to show the commission of violence and threats , though not to show attempted coercion . We have considered such evidence for all the purposes for which it was offered. Accordingly , the respondent is not prejudiced by the ruling. FORD MOTOR COMPANY 363 spondent had clearly demonstrated, by a series of unfair labor prac- tices directed against the Union,- that the economic security of its employees depended upon their repudiation of that organization.37 The Trial Examiner, after observation and consideration of the demeanor of the witnesses, concluded that none of these men joined the Union under duress. We affirm his finding. The respondent's first contention is rejected in its entirety. Before leaving the issue of duress we are constrained to observe that, while we do not disturb the finding of the Trial Examiner as to this issue, the transcript of proceedings convinces us that he erred, if at all, on the side of exclusions from the Union's majority.3' It is our conclusion that the record does not present such a showing of violence and intimidation in aid of the recruitment of union members as to impair the presumption that an employee who has joined the Union and has preserved his good standing therein, has freely designated and continues freely to designate the Union as his representative for the purposes of collective bargaining. Thus the failure of such an employee to testify does not justify the exclusion of his name from among those who have selected the Union. We observe, moreover, that 25 of the 77 men in this category left their work in the plant to go on strike at the call of the Union and thereby expressed continued loyalty as late as November 24. The contention that by their failure to go on strike 157 employees in effect repudiated the Union can in no event affect that Union's majority at the time of the refusals to bargain which occurred before the strike was called.39 Nor do we accept it in derogation of the Union's majority status thereafter. The purported repudiations occurred after the respondent had denied the Union the opportunity to represent the employees in collective bargaining and had otherwise grossly interfered with their freedom to select representatives. The respondent cannot now avoid its obligation to bargain by taking 39 See Section III, B, C, 3, D. 37 See Matter of May Knitting Company , Inc. and United -Wholesale and Warehouse Employees of New York, Local 65, C 1 0., 9 N. L R B. 938 , Matter of Moltrup Steel Products Company and Steel Workers Organizing Committee, Lodge No. 1202, 19 N. L. It B_ 471. m The Trial Examiner excluded 5 employees who affirmed their allegiance to the Union by going on strike , and 10 who are listed in the complaint , as to 6 of whom we herein- after find discrimination . As to 109 of the persons so excluded by the Trial Examiner, the record is bare of any evidence that they were subjected to violence , intimidation, or duress, in connection with joining the Union As to them , therefore, his determination rests solely upon their failure to retain good standing in the Union as defined in its constitution without taking into account the constitutional provision that payment of dues may be suspended during periods of unemployment . Undei the conditions of lay-off prevailing at the plant through October and part of November that test appears to us to be a severe one 36 October 19, November 3, and November 5, 1937 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD advantage of the apparent success of its efforts to destroy the Union's maj ority.40 We adopt the Trial Examiner's conclusions regarding the majority status of the Union. We find that on September 15, 1937, and at all times thereafter the Union had been designated by a majority of the respondent's employees in the appropriate unit as their represent- ative for the purposes of collective bargaining and that, pursuant to Section 9 (a) of the Act, the Union was and is the exclusive repre- sentative of all the employees in such unit for the purposes of collective bargaining. 3. The refusal to bargain As we have indicated 41 the Union's early efforts to negotiate with the respondent occurred during the spring of 1937 when the plant was in full production. They were, on the whole, successful. Super- intendent Mabie established a working relationship with the Union in order to keep the plant running. He persuaded his superior, Plant Manager Johnson, to acquiesce in this course in the expecta- tion that the Union "would not get far," and that "the thing would explode and then blow over." When, however, Mabie's prediction did not materialize but instead the union organization flourished, while Mabie continued to meet with its various committees, Johnson did not feel happy "about the whole thing," and "there were several things [Mabie] got hell about for doing." Johnson, obviously, looked upon Mabie's policy of meeting with the Union with growing disfavor. In his dealings with the Union, Mabie never questioned the Union's right to represent the employees. At a conference on September 7, 1937, between the union committee, Mabie, and Factory Service Manager Gantner, the Union's president stated that his organization represented the majority of the respondent's employees. To this Mabie replied that he did not believe it. But, when the union presi- dent said, "Well, we can prove it to you," Mabie's response was, according to his own testimony : "That is not necessary." At the 40 Matter of McKaig-Hatch, Inc. and Amalgamated Association of Iron, Steel and Tin Workers of North America, Local No. 1139, 10 N L R B 33; Matter of H J Heinz Com- pany and Canning and Pickle Workers Local Union No 325, etc, 10 N L R B 964. enf'd H. J Heinz Company v N. L. R B , 110 F. (2d) 843 (C C A 6) ; Matter of Hot trap Steel Products Company and Steel Workers Organizing Committee, Lodge No 1202, 19 N. L. R. B. 471. It is in the same light that we regard the apparent defections from the Union occa- sioned by the "Statement of Satisfaction" movement discussed in Section III, B, 2, above, and by the organization of the Legion (See Section III, F, below) We refuse to give weight to seeming shifts of allegiance which are actually the product of the respond- ent's unfair labor practice. 41 See Section III, A, supra. FORD MOTOR COMPANY 365, hearing, moreover, Gantner estimated that in September 50 to 60, per cent of the plant employees wore union buttons. We find that the respondent had no real doubt as to the Union's right to represent the majority of its employees. After September 25, 1937, the respondent put an end to Mabie's, relations with the Union, transferring the collective bargaining func- tion to the factory service and employment office. When asked if he had been solicited to meet with the Union since September 25,. 1937, Mabie testified : "There has been messages and Mr. Johnson has had calls and I have been in his office when he got them and he re- ferred the calls to Gantner and Miller." However, about the middle of October 1937, William Rankin and Fred Beeler encountered Mabie in a restaurant across the street from the plant and tried to arrange with him for a meeting with the Union's committee. Rankin testified that Mabie told them that he could not meet with them in the plant without losing his job. Mabie could not recall having made such a statement. He claimed that he offered to talk to the two men in the restaurant, but that they were unwilling to speak without the rest of the committee being present. He further testified : "I didn't tell them I would meet them anywhere and didn't refuse to see them, there any more either." In any event, it appears that the Union asked Mabie for a conference and that while he was willing to talk with the two men in the restaurant, he made it clear that he could not negotiate formally with the Union. On October 19, 1937, after the Union attempted unsuccessfully to, reach officials of the plant by telephone, Kimberling, with authoriza- tion from Homer Martin, international president of the United Auto- mobile Workers of America, sent the following telegram to Mabie: INTERNATIONAL UNION UNITED AUTOMOBILE WORKERS OF AMERICA OF DETROIT URGENTLY REQUEST MANAGEMENT OF FORD BRANCH ST LOUIS TO CONFER WITH LOCAL 325 ST. LOUIS IMMEDIATELY ANSWER IMME- DIATELY POSTAL TELEGRAPH HOMER MARTIN Plant Manager Johnson testified : "I was in Detroit, [Mabie ] called me at the Dearborn end and read me the telegram . . . I told him he knew the policies of this company and his job was the job of bring- ing back these men, he and the men that are associated with him. The only thing I wanted him to do was to behave as we have always behaved and to ignore that telegram." 42 He further testified : "In bringing the men back , we didn't intend to meet the committee that the automobile union set up for hiring from a hall on Clayton Avenue for the Ford Company down on Sarah . . . " Johnson stated that this was the policy of the respondent because he told the "people in 42 Italics supplied 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Detroit" how he felt about the matter and what he intended to do. The telegram was ignored. On October 30, 1937, after further attempts of the Union to reach the respondent's officials by telephone failed,'Union President Kim- berling sent Plant Manager Johnson a registered letter again request- ing the respondent to meet with the Union committee relative to collective bargaining. Johnson testified that he received the letter and turned it over to Gantner and Miller, directing them "to get in touch with them, meet with these fellows, and find out what they wanted, what we could do." Accordingly, on November 3, 1937, Gantner and Miller met the union committee at the plant. Gantner, manager of the factory serv- ice department, stated that he did not have authority to pass on con- troversies but would proceed with questions and obtain an answer in 48-hours. He testified that "the: authority I had- was. to, deny their, charges." The union committee presented certain demands and stated that the Union wanted relations established the way they were before the shut-down. The next conference was held on November 5. Its proceedings were recorded in notes taken by the Union and by the respondent. When asked for an answer to the committee's complaints that the respondent had refused to bargain, Gantner announced : "the company will continue as it has in the past to listen to any individual employee or any group of employees connected with the Ford Motor Company." When Kimberling interpreted this answer as meaning that the respondent was against collective bargaining, Gantner re- plied : "I'll listen to what you have to say. That's all I can tell you now." He evaded any direct response to the committee's questions regarding whether the union men were allowed to wear their buttons in the plant. Gruswitz, a committeeman, asked that the foremen be called in and asked to deny that they had been given instructions against permitting the men to wear their union buttons; Gantner's reply was, "it will not be possible, no." The committee ended the conference by stating that inasmuch as Gantner had no authority to deal with them and inasmuch as those who had such authority would not deal with them, the conference was useless. In light of Gantner's completely uncooperative conduct at the meeting, and his testimony as to the extent of his authority, it is apparent that the committee's conclusion concerning the futility of continuing the conference was justified. Plant Manager Johnson testified that the respondent had several telephone calls from the Union in November. "Kimberling got me on the phone once . . . he requested that we meet with him or some- thing or another; I don't remember the conversation. I turned it over to Gantner who was setting there in the office with me at the time." FORD MOTOR - COMPANY 367 Johnson also testified that at one time 93 Delmond Garst, regional director for the United Automobile Workers of America, reached him on the telephone. , "I knew him to be one of the officials of the UAW in some capacity-I knew'he had affiliated with the union, and, of course, the inference was there that he was representing some em- ployees in the plant, because they wanted to talk to us about the situation." When asked what he did when Garst called, Johnson stated : "I told him I would talk to any employee of the Ford Motor Company but I wouldn't care to talk to him." On December 1, 1937, Joseph Cooper, secretary of the Union, and Kimberling, spoke to Personnel Manager Harry Miller on the tele- phone and requested him to arrange for a conference between Johnson and Mabie and the union committee. Miller, although willing to meet with Cooper and Kimberling alone, refused to arrange a meet- ing between the committee. and. the, responsible,plant officials. The two union officers were unwilling to meet Miller since he had authority only to listen to their demand but not to bargain with them. On December 7 the Union, by its president and recording secretary, sent the respondent a letter, stating that many of the union men were receiving telegrams asking that they advise the respondent promptly if they wished to continue their employment. The letter continues : "We wish to state the men are ready to return to work when the Ford Motor Company ceases its discriminating policy and establishes rela- tions with the Union and its members, the same as they were prior to the change of the new models." We construe this letter as another request by the Union for collective bargaining. Johnson testified he received the letter. When asked whether he continued the practice of recalling men to work as they were needed, he answered : "I am not certain about that, whether they did or not. I ignored the letter, I assure you.744 The foregoing facts clearly demonstrate that at or about the time of the September 1937 shut-down the respondent discontinued its previously existing relations with the Union and thereafter refused to bargain with it. The respondent either ignored requests to meet and negotiate or frustrated them by stripping its representatives of power to do more than hear complaints. Requests of the Union to meet with duly authorized officials were refused. A further refusal to bargain is reflected by Johnson's unwillingness to meet Delmond Garst, whom he knew to be a representative of the Union, for the reason that Garst was not in the respondent's employ.45 43 The precise date of this incident is not stated in the record. "Italics supplied. 45 On January 28, 1988, during the course of the bearing , a conference took place and was attended by the Regional Director , the Trial Examiner , and representatives of the respondent and of the Union. The purpose of the conference was to accomplish adjust- 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that on and after October 19, 1937, and on November and 5 and December 1 and 7, 1937, the respondent refused to bargain collectively with the Union as the exclusive representative of the respondent's employees within an appropriate unit, and that the respondent thereby interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. D. Discrimination in regard to hire and tenure of employment 1. The scope of the complaint On the eve of the September 1937 shut-down, the plant employed approximately 900 production workers of whom over 700 had joined the Union. Between September 22 and October 26 the daily com- plement of workers averaged 155. During November plant employ- ment increased steadily ; on November 23 it had risen to 586. That night the strike was called. The Union, having been denied the right to represent such of its members as received work during the shut-down and having been repulsed in its efforts to negotiate with the management, was neces- sarily unable accurately to estimate the extent to which the respond- ent was discriminating against union members, or to make represen- tations to the respondent regarding supposed discrimination. As a result the 278 men listed in the complaint include a great majority of the plant employees who worked in September but were not re- called after the shut-down. The strike was joined in by many employees who had not yet been recalled to work as well as by a number who had been recalled and were working in the plant. We are of the opinion that the respond- ent's failure to recall a laid-off worker during the strike affords no basis for a charge of discrimination, and shall accordingly limit our scrutiny of cases of alleged discrimination by failure to recall to the period preceding the strike.46 We have hereinbefore affirmed rulings of the Trial Examiner, upon motions made at the hearing, whereby he dismissed the complaint ment of the charges of unfair labor practices . The respondent contends that it there undertook to negotiate all matters in controversy between it and the Union , but that the Union 's representatives took no active part in the conference It argues that the Trial Examiner 's ruling excluding the transcript of that conference from evidence constitutes prejudicial error. Evidence of negotiations looking to settlement of the proceedings before the Board are obviously immaterial to the issues . The Trial Examiner's ruling • is accordingly affirmed. 48 Conversely , as to workers who were discriminated against prior to the strike, the occurrence of the strike did not operate to end the respondent's discrimination . We shall not presume , in the absence of affirmative evidence, that they would thereafter have re- fused an offer of reinstatement had one been offered. ( See Section V below.) FORD MOTOR COMPANY 369 as to 76 of the 278 cases of alleged discrimination. Before stating our findings as to the remaining 202 cases we shall briefly review the respondent's defenses. 2. The defenses The respondent's answer alleged in substance that pursuant to its general policy, as production of the new model was begun, the respondent recalled workers as quickly as its operations of the plant permitted in accordance with their ability to perform the operations for which they were required, and that no employee was discrimi- nated against because of union membership or activity. In addition the answer alleged failure to return to work, disability, and ineffi- ciency as reasons for the respondent's failure to employ specified individuals, and asserted that the respondent had determined never to employ the individuals accused of inefficiency or certain specified individuals believed by it to have been guilty of "unlawful and wrongful acts," but that it would recall the others when their services should be required. a. Failure to return to work The respondent alleged that, in accordance with its rule that any employee who fails to report for work at its plant within 5 days after notice to do so is dropped from the respondent's list of em- ployees, the employment of 54 " men named in the complaint was terminated and they were replaced with other workers. Forty-eight of these employees were recalled only after the strike had begun and their refusal to return to work during the strike has no bearing upon alleged discrimination occurring prior thereto. Its effect upon our affirmative order of reinstatement is discussed below in the section entitled "The remedy." We hereinafter dismiss the complaint with respect to five of the six men who were called back prior to the strike 46 The sixth, Enoch M. Ray, did report for work, but was refused reinstatement.40 The respondent further alleged that the employment of four other men 50 was terminated after they notified the respondent that they failed to report for work because they feared violence from members of the Union. These employees, however, were recalled while the strike was in progress and their refusal to report to work is no defense to discrimination occurring before the strike began. 47 The list included 63 men, but we have deducted 9 men whose names were dismissed from the complaint during the hearing, 48 Carl T Busse, Joseph Evanik, James B Murphy, Clyde O, Rennick, William T Scar- borou;h (See Appendix II, A). 49 See Appendix I, A. 60 George M Bartold, Jack Lancaster , John P Tice , Anthony L. Oith. 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. Disability The respondent alleges that four of the men named in the com- plaint were, prior to the resumption of operations, disabled from performing the duties of such employment. The complaint with respect to Anastie Thebeau, one of the four men, was dismissed by the Trial Examiner, upon the Board's motion at the hearing. As respects the remaining three, this defense is treated in the discussion of their individual cases.61 c. Inefficiency The respondent set up inefficiency as the reason why 23 men have not been and will not be reemployed by it. Harry P. Miller, the respondent's personnel manager, testified that no men had been barred from reinstatement at the time the strike was called, but that during December, he decided not to call back certain employees because of their inefficiency. His decision was based on the information gathered during the preparation of this case from the foremen about the quality of the men's work. Miller stated on cross-examination, however, that if "they got real short of men they would take them back," that is, that the employees on the inefficiency list would not be called back until all the others had returned. It thus appears that the respondent is not refusing to reinstate these men but only proposes to postpone their reinstatement until after such time as all the more efficient employees shall have been recalled. This list of inefficient employees was prepared only subsequent to the respondent's receipt of notice of this hearing, and is, therefore, of little probative value in cases where the defense of inefficiency is not supported by other evidence. d. "Unlawful and wrongful acts" The respondent's amended answer alleges that 59 men named in the complaint 52 have not been recalled to work because their work has not been required, and that the respondent refuses to reemploy them for the reason that it has reasonable grounds to believe that "each has been guilty of unlawful and wrongful acts of violent con- duct, threats and intimidation against the respondent, its property, its officers and employees." The answer further states that the re- spondent will not reemploy "any other men whom the company shall have reasonable grounds to believe guilty of such acts." 51 See Boulicault ( Appendix I, B, 2) ; Edwgrxls ( Appendix II, C, 1) ; and Brawner (Appendix II, C, 2) "The name of Louis Jarvis also appears In this list He, however , was not named in the complaint FORD MOTOR COMPANY 371 Personnel Manager Harry P. Miller stated , in answering questions of the Trial Examiner , that the respondent does not have a policy of refusing to employ men convicted of misdemeanors or felonies, but that the respondent refuses to employ men whom it believes or has reason to believe to be "guilty of unlawful violence or guilty of viola- tions of the law; that would not be based on conviction or acquittal." Miller testified that this had been the general policy of the respondent for years, but the record, contradicts his statement. Many of the un- lawful and wrongful acts which are alleged to have taken place during the summer of 1937 were known to the respondent but, with one exception, no employee charged with such acts was discharged, or, even warned or reprimanded at that time.63 Miller testified that the respondent determined not to recall workers whom it believed guilty of such acts "sometime between the first of December and the last part of December during the course of 2 or 3 weeks." The respondent 's brief states that this determination was not made until late in December, at which time the hearing had already been in progress for 2 weeks. Miller described the manner of compiling data on each of these men as follows : The respondent was seeking information of any kind which , would be helpful at the hearing. Some of the employees were called into the office and were asked what they knew "about condi- tions"; others volunteered such information. Their statements were made to Miller and then repeated to his stenographer or dictated to the stenographer directly. The statements thus gathered were ad- mitted in evidence as Respondent Exhibit 86. Miller stated that the testimony given at the hearing was an additional source of informa- tion upon which the respondent based its determination not to rehire men guilty of violence. Thus both the respondent 's answer and the testimony of its per- sonnel manager at the hearing present the alleged "unlawful and wrongful acts" of certain employees as the respondent 's present reason for refusing to reinstate such employees and not as a defense to alleged discrimination before the strike. In its brief the re- spondent for the first time argues that to the extent that the acts complained of occurred before the shut-down they necessarily and properly influenced its foremen in the selection of employees for rein- statement. The surface plausibility of this contention is vitiated by the record. There are 29 persons with respect to whom we hereinafter find discrimination who are charged by, the respondent with misconduct before the strike . In the case of 22 of these , the alleged misconduct st The exception is Ben Bunk , discussed in Appendix If, C, 1. 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consists solely of threats, incident in most cases to the solicitation of union membership. A twenty-third man,54 is accused of cursing his assistant foreman who suggested that the man in question would be willing to help another worker through a union picket line. Only six were charged, in addition, with more significant misconduct. Two men were 55 accused of grinding sparks into the eyes of in- spectors. Both vigorously denied the accusation at the hearing and neither was reprimanded, warned, or given any official indication of displeasure. One man 50 allegedly pushed an assistant foreman around the washroom, and one 57 is accused of squeezing water down another man's back. The most spectacular occurrence complained of was that in which John P. Cahill, an inspector, was stripped of his clothes in front of the plant on June 21.58 The respondent took no disciplinary action on the basis of this incident. When Cahill re- ported it to Chief Inspector Parrott, the latter told him he might "just forget about it or prosecute, either one . . ." Foremen to whom Cahill spoke characterized the occurrence as "a rather lousy trick, a rather childish trick." In sum, the alleged "unlawful and wrongful acts" which, by virtue ,of the time of their occurrence, were capable of entering into a de- termination against reinstatement consisted primarily of mere verbal excesses such as are not uncommon to union organizing drives, in small part of horseplay, and only in rare instances of actual violence. In no case save that of Ben Bunk which we hereinafter dismiss,-19 is there any affirmative evidence that the respondent considered the alleged misconduct as a factor militating against reinstatement prior to the strike. We accordingly reject the contention raised by the respondent's brief. The effect of alleged misconduct, before or after the beginning of the strike, upon our remedial order is discussed below in the section entitled "The remedy." 3. Conclusions regarding the alleged discrimination Upon the entire record we find that 94 of the cases of alleged dis- crimination are sustained and that the complaint must be dismissed as to the remaining 108.90 For the sake of conciseness we here re- 51 Boeckstiegel ( Appendix I, A). 53 Forrest and Gruswitz ( Appendix I, B, 1). 68 Louts Woolsey (Appendix 1, B, 1) 57 Howard Thebeau (Appendix I, A, 1) 68 La Rowe and Short ( Appendix I, B, 1) participated in this escapade. 51 Appendix II, C, 1 °p The Trial Examiner sustained 96 cases We affirm his findings as to 71 of these, reversing 25. Further , we find discrimination in 23 cases in which he did not. The Trial Examiner ' s conclusion in each case is indicated in the appendices. FORD MOTOR COMPANY 373 strict ourselves to a summary statement of our ultimate findings, with the reasons therefor , as to each of a number of categories into which the cases fall . Detailed subsidiary findings of fact as to each of the 202 cases are set forth in appendices below with the same force and effect as though they appeared at this point in the body of this opinion. a. The respondent's discriminatory refusal to reinstate 8 union members and its discriminatory lay-off of 11 union members The 19 men whose cases are discussed in Appendix I, A, were recalled by the respondent before the strike. Eight of them re- ported for work wearing their union buttons and were thereupon refused reinstatement. The remaining 11 worked for a few days and then indicated their continued affiliation with the Union, either by attending a union meeting, refusing to sign a statement of satis- facton, or associating publicly with known leaders of the Union. They were thereupon laid off. We find that the respondent, at the respective dates set forth in Appendix I, A, discriminated in regard to the hire and tenure of employment of the individuals whose cases are discussed in that Appendix, and thereby discouraged membership in the Union, and interefered with, restrained, and coerced its employees in the exer- cise of the rights guaranteed in Section 7 of the Act. b. The respondent's discriminatory failure to reinstate 53 union officials before the strike In the spring and summer preceding the 1937 shut-down, the Union was extremely active in the respondent's St. Louis plant. Leaders in this activity were the Union's officers, its committeemen who met frequently with DZabie and other of the respondent's of- ficials, and its shop stewards who represented union members in the different departments in dealing directly with the respondent's supervisory personnel. For ready identification in the plant the committeemen and stewards wore special buttons indicating their status. Fifty-nine of the 892 production employees on the respondent's pay roll when the plant shut down were officers, committeemen, or shop stewards of the Union. We find that their identity as union leaders was known to the respondent. As production was resumed after the shut-down, these union of- ficals were not recalled. By November 23, although plant employ- ment had reached 586, or about two-thirds the number working in September, only 2 of the 59 officials of the Union had been called to 283034-41-vol 23-25 374- DECISIONS OF -NATIONAL LABOR RELATIONS BOARD work.61 We have for determination the cases of 55 of the remain- ing 57 men in this category.62 The gross disparity between the increase in plant employment generally and the proportion of union officials recalled before the strike convinces us that the respondent determined to eliminate the union officials, as a group, from its employ, and that it did not con- sider them for reinstatement, because of their status and activities in the Union.63 The treatment which the respondent accorded the 19 union adherents whom it had recalled, when they showed con- tinued interest in the Union, indicates the extent to which known union sympathies adversely affected a man's chance to work and confirms our conclusion regarding the union officials, all of whom were conspicuous in their union affiliation. Had the respondent measured these men for reinstatement along with others upon some non-discriminatory basis, it may be that not all of them would have obtained employment before the strike. We are convinced, however, that their union office was the sole criterion, by which they were judged-and by virtue of which they were re- jected. The respondent's arbitrary and discriminatory treatment of the men in this group renders it impossible for the Board to deter- mine with certainty which of them would normally have been recalled and which would normally have failed to secure reinstatement by the time of the strike. In the circumstances it rested with the re- spondent "to disentangle the consequences for which it was respon- sible from those from which it was immune," 64 and to establish affirmatively as to any person in the group that, even had he held no union office, he would not have been recalled by November 24 when the strike began.65 01 Roy Hoffman and Thomas Ledford, shop stewards , were reinstated on October 26 and November 10, respectively 62 Walter FTanel , shop steward , returned to work during the strike The name of Virgil Hudnall , an officer, waa omitted from the amended complaint 13 After the strike had begun the respondent offered employment to five additional union officials One , Hanel, returned to work ; the others , Key, Martin, Rennnert , and Simon refused to work because of the strike For obvious reasons, the respondent 's action in recalling these men after the strike had begun is without effect upon the presumption above discussed In any event, the respondent recalled 7 in all of the 59 union officials See Hamilton - Brown Shoe Co v. N . L R B, 104 F (2d) 49 , enf'g as modified , Matter of 11amilton -Brown Shoe Company , a Corporation and Local No . 125 United Shoe Workers of America, affiliated with the Committee for Industrial Organizatio n, 9 N L R B 1073, Montgomery Ward if Co , Inc v N L R It , 107 F (2d) 555 (C C A 7), November 7. 1939. euf'g as modified ^Tlattes, of Montgomery Ward it Company and Reuben Litzenbeuge>, of of , 9 N L R B 518 "See N L. R B v. Remington Rand , Inc, 94 F ( 2d) 862 (C C A 2), cert denied 304U.S 576 u, An analogy exists in the law of personal property , the courts having repeatedly held that intentional wrongdoers ( as well as persons in a fiduciary relationship to others, act- ing negligently or inadvertently ) who so mingle and confuse their own property with that of others as to render identification and segregation impossible must bear the losses FORD MOTOR COMPANY 375 In the cases of 2 of the 55 union officials named in the complaint, those of Ben Bunk and Russell W. Johnson,°° we find that the re- spondent has met this burden. The evidence convinces us that neither Bunk nor Johnson would normally have been recalled before the strike. We shall dismiss their cases. As to the remaining 53 men, all of whose cases are discussed in Appendix I, B, below, we are of the opinion that the complaint must be sustained. In many of these cases the respondent's dis- crimination is obvious. Although in some the evidence of discrim- ination is less clear, all are sustained, for in view of the respondent's evident policy against employing any union official, no man in that category had a normal or fair chance of employment, and the re- spondent has failed to establish as to any of them that he would normally have failed to secure reinstatement before the strike. We find that the respondent, at the respective dates set forth in Appendix I, B, discriminated in regard to the hire and tenure of em- ployment of the individuals whose cases are discussed in that Ap- pendix, and thereby discouraged membership in the Union and inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. c. The respondent's discriminator failure to reinstate 22 union members before the strike The 22 men whose cases are discussed in Appendix I, C, worked in the plant until the September shut-down. All were members of the Union and had evidenced their loyalty to the Union in some way, such as by conspicuous union activity prior to the shut-down, or by refusing to repudiate the Union when questioned during the shut- down. Although they were capable and experienced workers none had been recalled by the time of the strike. Most of them had been replaced by employees with considerably less seniority. We find that the respondent, at the respective dates set forth in Appendix I, C, discriminated in regard to the hire and tenure of employment of the individuals whose cases are discussed in that Ap- pendix, and thereby discouraged membership in the Union and inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. iesulting from the confusion which they create ( The Idaho , 93 U S 575; Union Nar,al Stoles Co v United States, 240 U S 254 : Smith v Township of All Gres, 150 F 257: Brainard v. Cohn , 8 F (2d ) 13. Fi rst National Bank v Henry , 159 Ala 367, 49 So. 97 ) The burden of proving the respective shares of the parties in such property is upon the wrongdoer ( Holloway Seed Co v City National Bank, 92 Tex 187, 47 S w 95. 516). " See Appendix I, C, 1 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD d. The alleged discrimination against 108 additional employees In Appendix II are discussed the cases of 108 additional employees. As to them we find that the record does not support the allegations of discrimination. Seven men 07 were called to work prior to the strike but did not report. As to 13,63 although the record indicates that the respondent had need of their services prior to the strike, there is no showing of outstanding union activities to support a finding of discrimination for union reasons. In the remaining 88 cases,"' the respondent's defense that it had no need for the services of the men in question pre- vails. We shall accordingly dismiss the complaint in so far as it alleges that the respondent has discriminated in regard to the hire and tenure of employment of the men whose cases are discussed in Appendices II, A, B, and C. E. Conclusions regarding the cause of the sty ike We find that the strike of the respondent's employees at its St. Louis plant which began on November 24, 1937, was caused by the respond- ent's refusal to bargain collectively with the Union, by its discrimina- tion in regard to the hire and tenure of employment of union members, and by its other acts of interference with and restraint and coercion of its employees in the exercise of the rights guaranteed in Section 7 of the Act. F. Domination of the Legion 1. Origin and growth of the Legion Early in November seven employees who worked through the shut-down decided to organize an independent union at the plant.70 To that end they applied to Liberty Legion of America, Inc., a labor organization existing among Ford Employees at Dearborn, Michigan, for the privilege of operating under its charter. After some corre- spondence, Leo R. Schaefer and Thurlow H. Grey, counsel and sec- retary, respectively, of Liberty Legion of America, Inc., came to St. Louis to confer with the seven proponents of a new union. The parties met on November 29 in a St. Louis hotel. At this meeting the seven employees were constituted the trustees of the projected 07 Appendix II, A. O8 Appendix II, B. °° Appendix II, C. 70 August Krurrmel, Benny LaPresta , James Kilzer , James B . Parr, Lester Burton, John Bertke , and Joe McConnell when the strike occurred , the respondent assigned all of these men except Kilzer to the task of bringing employees to the plant through the Union's picket line in company automobiles. FORD MOTOR COMPANY 377 'labor organization. They thereupon elected four of their number its officers 41 and agreed to initiate an immediate organizing campaign. .On the next day, November 30, which was the seventh day of the Union's strike, the proponents of Liberty Legion of America, Inc., distributed application cards to plant employees on the way to work. Such cards were also distributed in the plant during the day. These efforts met with success. On the same day 592 employees of the respondent signed up. On December 1, Leo R. Schaefer, in his capacity as counsel for Liberty Legion of America, Inc., demanded that the respondent rec- ognize it as the exclusive bargaining representative of the St. Louis plant employees. Parr, secretary-treasurer of the new organization, Sometime in December the labor organization which thus came made a similar request a few days later. into existence was granted a charter, retroactively dated November 15, 1937, as "St. Louis Division of the Liberty Legion of America, Inc." It is the St. Louis Division which is herein called the Legion. At the hearing the Legion showed a membership of 760 of the re- spondent's employees. 2. Activities and status of James B. Parr James B. Parr, listed upon the respondent's pay roll as a car releaser, was a leader among the seven men who initiated the Legion at the St. Louis plant. At the November 29 meeting he became a trustee of the Legion and its secretary-treasurer. He remained one of the Legion's guiding spirits. The Trial Examiner found that Parr is a supervisory employee of the respondent. From Parr's sometimes self-contradictory testi- mony at the hearing, we find that he is employed in the factory service department of which Bert Gantner, who until November 10 was in charge of personnel, also is the head; that he occupies a desk in Gantner's office; that he assisted in sending telegrams recalling employees to work; and that he assisted Gantner in keeping a general check over conditions throughout the plant and had the duty of reporting labor activities to Gantner. Claude Eidson, an assistant foreman, testified that Parr is Gantnor's assistant. Although Parr is listed as a car releaser, he is named on the employment cards of two other employees of the factory service department as their fore- man. These cards were approved and signed by Plant Manager Johnson and by Gantner. On the day of the strike telegrams were sent to at least two employees asking them to telephone to Jimmie Parr in the factory service department. ' Krummel was elected chairman of the Board ; Kil?ei, president, LaPresta, vice presi- dent ; and Parr, secretary-treasurer 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent contends that Parr is not a supervisory employee nor an assistant to Gantner; that he did only clerical work in con- nection with recalling men to work; and that the employment cards describing him as a foreman were made out in error and were signed by the respondent's officials as a matter of routine. We need not determine Parr's precise place in the plant's hier- archy. It sufficiently appears that his job includes duties normally performed by a personnel official. The Act requires employers to restrain employees whose duties include reporting on labor activities from taking a leading part in such activities. We accordingly at- tribute to the respondent Parr's participation in the formation of the Legion. 3. Action of plant officials in joining the Legion Harry P. Miller, the employment and personnel manager at the St. Louis plant, joined the Legion on November 30, 1937, the first day of its organizing drive. On the same day the following respon- sible supervisory employees also joined : John G. Parrott-Chief Inspector I Theodore G. Wunderlich-Stock Superintendent John E. Maeser-General Body Foreman Roy Bragg-Body Department Foreman George E. Bates-Chassis Department Foreman Henry Schesser-Trim Department Foreman 1 Frank Kleusner-Service Stock Foreman Louis Whitenight-Maintenance Foreman Carl Stanze-Paint Department Foreman Fred H. Spellmeyer-Foreman Stock Department Harold F. Tonsing-Foreman Repair Shop The respondent seeks to avoid the implications of this action on the part of its employment and personnel manager and its foremen by pointing out that they merely joined the Legion and took no part in its affairs. In the circumstances of this case, the distinction is without force. The Legion was organized, in large measure, to oppose and defeat the Union 72 which was on strike against the re- spondent's refusal to bargain with it and against the respondent's dis- criminatory treatment of its members. The action of Miller and the foremen in joining the Legion gave that organization the un- mistakable stamp, of the respondent's approval. 7' The record amply supports the testimony of Lester Burton, one of the men who con- ceived the Legion, that the establishment of the Legion was the outgrowth of the circula- tion of the statements of satisfaction which, as ae have found, had for its purpose the defeat of the Union ( see Section III, B, 2, supra ). August Krummel, another leader of the Legion, had been the prime mover in the statements-of-satisfaction movement FORD MOTOR COMPANY 379 4. The Legion's meetings in the plant During December the Legion held a number of meetings in various parts of the plant. Kilzer testified that five such meetings were held and that he presided over them. One of the meetings took place at 10 o'clock in the morning, in the office of Chief Inspector Parrott, but it does not appear that the others occurred during working hours. The importance of joining the Legion was stressed and the Union was denounced. Several employees were asked by their fore- men to attend these meetings. Some of the foremen also attended. On one occasion, Superintendent Mabie came to a Legion meeting, but made no move to stop it. 5. Conclusions regarding the Legion By the activities of Parr in organizing the Legion, the action of Miller and other supervisory employees in joining it, and the action of plant officials and supervisory employees in permitting the Legion to hold meetings in the plant and encouraging employees to attend, the respondent directly encouraged the formation and growth of the Legion. The foregoing activities alone establish employer domination. When they are considered in conjunction with the respondent's other un- fair labor practices such a finding is inescapable. At the time of the September shut-down the Union commanded the adherence of a sub- stantial majority of the plant employees and had established relations with the respondent. With the cessation of production the respond- ent embarked upon a program calculated to undermine and destroy the Union; ceased, and thereafter refused, to deal with it; excluded from employment the overwhelming majority of the union officials as well as numerous other active members; and, finally, caused the Union to go out on strike. Even had the Legion thereafter come into exist- ence without further assistance from the respondent we should be con- strained to find that its existence was the product of the respondent's unrelenting pressure upon the employees to abandon the Union and not of any independent desire upon the part of the employees for self-organization.73 73 The immediate and complete success of the Legion's membership drive indicates the extent to which employees who worked during the strike were influenced by 'the respond- ent's unfair labor practices. See Matter of Texas Mananq & Smelting Company and Inter- national Union of Mine, Mall & Smelter Workers, Local No 4V, 13 N. L R B. 1163, where the Board stated : "Success of the respondent's campaign against the Union entailed one of two results, each destructive of the employees' rights; either that the organizational efforts of the employees be crushed, or, as actually occurred, that such efforts be diverted into channels more acceptable to the respondent Both consequences were reasonably within the respondent's contemplation when it resorted to unfair labor practices designed to de- stroy the Union " Also see Matter of Jac Feinberg Hosiery Mills, Inc and American Fed- eration of Hosiery Woilers North Carolina Drstiict, 19 N L It B 667; Matter of 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the respondent dominated and interfered with the formation and administration of the Legion and contributed support to it, and that it thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.74 We find further that the Legion is incapable of serving the respond- ent's employees as their genuine representative for the purposes of collective bargaining. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respond- ent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It is essential in order to effectuate the purposes and policies of the Act that the respondent be ordered to cease and desist from the unfair labor practices in which we have found it to have engaged, and in aid of such order and as means of removing and avoiding the consequences of such practices, that the respondent be directed to take certain affirm- ative action. We have found that on October 19, 1937, and at all times thereafter, the respondent refused to bargain collectively with the Union as the representative of its employees within an appropriate unit. We shall therefore order the respondent, upon request, to bargain col- lectively with the Union as the exclusive representative of its em- ployees in the appropriate unit and, if understandings are reached, to embody such understandings in a signed agreement. We have found that the respondent dominated and interfered with the formation and administration of the Legion and contributed support to it. In order to effectuate the policies of the Act and free the employees of the respondent from such domination and inter- ference, and the effects thereof, which constitute a continuing ob- Coidwell Lawnmower Company and International Association of Machsnists, Lodge No. 757, affiliated with the American Federatson of Labor , 14 N L. R B. 38; Matter of Craw- ford Manufacturing Company and Textile Workers Organizing Committee, 8 N. L. R B. 1237. 44 The Trial Examiner found further that the respondent dominated Liberty Legion of America, Inc, the labor organization with which the Legion is affiliated Inasmuch as the complaint in this proceeding is directed against the respondent ' s unfair labor practices at its St . Louis plant alone , we are of the opinion that our finding regarding the Legion suffices, and we make no finding regarding the parent organization FORD MOTOR COMPANY 381 stacle to the exercise by the employees of the rights guaranteed them by the Act, we shall order the respondent to refuse to recognize the Legion as the representative of the respondent's employees for the purpose of dealing with the respondent concerning rates of pay, wages, hours of employment, and other conditions of employment. We have found that the respondent, prior to November 24, 1937, discriminated in regard to the hire and tenure of employment of the individuals listed in Appendix I, and that on November 24, 1937, a number of the respondent's employees went on strike because of the respondent's unfair labor practices. In order to effectuate the policies of the Act, we shall require the respondent, upon application, to offer to the individuals listed in Appendix I, and to such of its employees who on or after November 24, 1937, left their work to go on strike,75 or refused to report to work pursuant to call because of the strike'76 reinstatement to their former or substantially equiva- lent positions, dismissing if necessary all persons hired since the commencement of the strike. If after dismissal of all persons hired since the commencement of the strike there are, by reason of a re- duction of force, insufficient positions available for the remaining employees, including those to be reinstated, all available positions shall be' distributed among such remaining employees in accordance with the respondent's usual method of reducing its force, without discrimination against any employee because of his union affiliation or activities and following a system of seniority to such extent as has heretofore been applied in the conduct of the respondent's busi- ness; provided, however, that in such distribution of positions all persons listed in Appendix I shall receive preference, regardless of their relative seniority, over persons not listed in that Appendix who were recalled to work, either before or after the beginning of the strike, to take their places. Those remaining after such distribution for whom no employment is immediately available shall be placed upon a preferential list prepared in accordance with the principles set forth in the previous sentence, and shall thereafter, in accordance with such list, be offered employment to their former or substantially equivalent positions, as such employment becomes, available and be- fore other persons are hired for such work. The respondent contends that the Board's authority to order rein- statement is limited to "employees" as defined by Section 2 (3) of the Act, and that the Board has the burden of proof in establishing that the men ordered reinstated have not obtained other regular and substantially equivalent employment. We find the respondent's con- 75 Including the persons listed in Appendix IV 7e Including the 9 individuals listed in Appendix V and the 35 individuals listed in Ap- pendix VI who were recalled by the respondent during the strike and refused to report 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tentlon to be without merit." In any event, the record indicates, and we find, that 90 of the 94 men listed in Appendix I, and all the men listed in Appendices V and VI, have not obtained other regular and substantially equivalent employment. As to four of the individuals listed in Appendix I,75 and as to individuals who left their work to go on strike, the record is silent on this point, but even were such indi- viduals shown to have obtained regular and substantially equivalent employment, we should, for the reasons stated in the Eagle-Picher case,79 order the respondent to reinstate them. As to 46 of the persons whose reinstatement we shall order, the re- spondent contends that because it believes them guilty of "unlawful and wrongful acts" it should not be required to employ them.80 In large part the acts complained of consist of threats and other verbal excesses such as are frequently encountered during organizing drives and strikes and afford no basis for withholding a remedial order of reinstatement-"' During the strike, in addition, 15 of these men were arrested and charged with crimes. One was acquitted after trial and the cases of six were dismissed without trial. So far as the Board has been able to ascertain, only four convictions resulted .112 Bee Butler, James Pradee, Fred Beeler, and Russell Fairchild were tried in the St. Louis Circuit Court and found guilty of common assault, a misdemeanor. Butler and Pradee were fined $100 each ; Beeler and Fairchild $10 each. Our review of the evidence relating to the conduct of strikers and victims of discrimination discloses no indi- vidual whose return to work under normal conditions free from the respondent's unfair labor practices would not effectuate the policies of the Act.83 The respondent's contention is accordingly rejected. 17 See Matter of Eagle -Picher Mining and Smelting Company , a corporation, et at. and International Union of Mine , Mill and Smelter Workers , Locals Nos. 15, 17, 107, 108, and ill, 16 N L R B 727. 78 Frank Gruswitz , Jess Olive, Hartwell Paiks , and Clifton Stes ens 79 See footnote 77, supra 8° The respondent names 60 such persons but our reinstatement older covers only the 46 listed in Appendix VII "We have heieinbefore briefly commented upon the misconduct preceedmg the strike which the respondent attributed to victims of discrimination See Section III, D, 2, d, supra 82 Wheie, as here , a relatively large number of individuals are charged with misconduct, the Board , in determining the appropriateness of an order of reinstatement , does not try individual accusations of disorder or violence which have not resulted in convictions Re- public Steel Corporation v. National Labor Relations Board , 107 F ( 2d) 472 ( C C A. 3), Bert denied 309 U. S 684 , enf'g as mod Matter of Republic Steel Corporation and Steel Workers Organizing Committee , 9 N L. R B 219 83 National Labor Relations Board v . Stackpole Carbon Co , 105 F ( 2d) 167 (C C A 3). enf'g Matter of Stackpole Carbon Company and United Electrical it Radio Workers of Ameiicr, Local No. 50?, 6 N. L. R. B 171 ; National Labor Relations Boaid v. Arthur L Cotten and Abe J. Colman, Co-Partneis doing business as Kiddie Kover Manufacturing Conipany, 105 F (2d) 179 (C C A 6), enf'g Matter of Arthur L Cotten and A J Colman, Co-Partners, doing business as Kiddie Kover Manufacturing Company and Amalgamated Clothing Workers of America, 6 N. L. R B. 355 , Matter of Electric Boat Company and Industrial Union of Marine and Shipbuilding Workers of America, Local No 6, 7 N. L. FORD MOTOR COMPANY 383 We shall further order the respondent to make whole the individuals listed _in Appendix I for loss of pay occasioned by the respondent's discrimination against them. Nine individuals so listed 84 refused offers of reinstatement during the strike and thereby placed themselves in the category of strikers.85 Their back pay shall be computed from the date of the respondent's discrimination to the date of its offer of reinstatement and from 5 days after the date of their application for reinstatement to the date of the respondent's offer of reinstatement or placement upon the prefer- ential list as required by our Order. Although the testimony of several other individuals against whom the respondent discriminated indicates that they would not return to work as long as the Union's strike continued, we do not regard such testimony as conclusive evidence that the men in question would have refused an offer of reinstatement during the strike had one been made.S" The strike was c fused in part by the respondent's discrimi- nation and the plant continued in operation throughout. In our opin- ion it will best effectuate the policies of the Act if the back pay awarded victims of discrimination who did not receive and unequiv- ocally refuse offers of reinstatement is computed from the date of the respondent's discrimination to the date of our Order herein, and from 5 clays after their application for reinstatement to the date of the respondent's offer of reinstatement or placement upon the preferential list required by our Order."' In accordance with our usual practice,ea however, the period from the date of the Trial Examiner's Inter- mediate Report to the date of our Order will be excluded in computing the back pay to be awarded individuals as to whom we find discrimi- nation but the Trial Examiner did not.89 R B 522; Republ i c Steel Corporation v. National Labor Relations Board, 107 F. (2d) 472 (C C A 3), cert denied, 309 U S. 684, enf'g as mod . Matter of Republic Steel Corpora- tion and Steel Workers Organizing Committee , 9 N. L. R B 219 14 These nine individuals and the dates upon which they were offered iemstatement are listed in Appendix V. 85 See Hatter of Harter Corporation and International Association of Machinists, 8 N L. R B 391, Matter of Elkland Leather Company, Inc and National Leather Workers Asso- c ation, Local No 37, 8 N. L. It. B 519. 88 See Matter of Lindeman Power and Equipment Company and International Association of Machinists , 11 N L R B. 868 Our conclusion to award back pay through the strike is not affected by the fact that the Union, by letter to the respondent dated December 7, stated that the men were ready to return to work "when the Ford 'Motor Company ceases its discriminating policy and establishes relations with the Union and its members, the same as thoN were piior to the change of the new models" (('f Matter of Horace G. Prettyman and Arthui J. Wiltse, Co-partneis doing business as the Ann Arbor Press and International Typographical Union, 12 N L It. B. 640) Inasmuch as the respondent ig= nored this letter and thereafter called other workers , some of whom responded , the letter, also , is inconclusive that offers of reinstatement if made would have been refused. 87 See William Randolph Hearst, et at v N. L R. B, 102 F. (2d) 658 (C. C. A 9), enforcing as modified Matter of William Randolph Hearst, et al and American Newspaper Guild, Seattle Chapter, 2 N. L R B 530 88 Matter of B. R. Hafelfinger Company, Inc and United Wall Paper Crafts of North America, Local No. 6, 1 N. L R B. 760 , and subsequent cases 19 These individuals are listed in Appendix VIII 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We shall, finally, order the respondent to make whole strikers whole we require it to reinstate for any loss of pay occasioned by the re- spondent's failure to reinstate them or place them on a preferential list pursuant to the terms of our Order.90' Back pay, in each case, shall consist of a sum of money equal' to that which the individual in question would normally have earned during the period or periods of its computation, less his net earn- ings 91 during such period or periods. THE PETITION We have determined the appropriate bargaining unit and found that a majority of the respondent's employees within that unit have designated the United Automobile Workers of America, Local No. 325, as their representative for the purposes of collective bargaining. Accordingly, we shall dismiss the petition of that Union for certification. 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. United Automobile Workers of America, Local No. 325, and fit. Louis Division of the Liberty Legion of America, Inc., are labor organizations within the meaning of Section 2 (5) of the Act. 2. All production employees of the respondent at its St. Louis plant, including maintenance employees but excluding employees having power to hire or discharge, foremen, assistant foremen, sub- foremen, leaders, and pushers, clerical and office employees, watch- men, and zonemen, constitute a, unit appropriate for the purposes. of. collective bargaining within the meaning of Section 9 (b) of the Act. 3. United Automobile Workers of America, Local No. 325, was, on September 15, 1937, and at all times thereafter has been, desig- 90 Matter of Biles-Coleman Lumber Co . and Puget Sound District Council of Lumber and Sawmill Workers , 4 N L R B. 679 , enf'd N. L. R B v. Biles - Coleman Lumber Co, 98 F (2d) 18 (C C A. 9. 1938 ) ; Matter of Republic Steel Corp and Steel Workers Organizing Committee, 9 N L R . B 219, enf'd Republic Steel Corporation v. N L R B., 107 F. (2d) 472 (C. C. A. 3), petition for certiorari denied April 8, 1940, 309 U. S 684. 91 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working 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 Amer- sea, 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 are not considered as earnings , but, as provided below in the Order , shall be deducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State , county, municipal , or other government or governments which supplied the funds for said work -relief protects FORD MOTOR COMPANY 385 nated the exclusive representative of all employees in such unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing and continuing to refuse to bargain collectively with United Automobile Workers of America, Local No. 325, as the exclusive representative of the employees in the above unit, the re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act. 5. By discriminating in regard to hire and tenure of employment of the employees listed in Appendix I and thereby discouraging membership in United Automobile Workers of America, Local No. 325, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 6. By dominating and interfering with the formation and admin- istration of St. Louis Division of the Liberty Legion of America, Inc., and contributing support to it, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 7. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 9. The respondent has not discriminated in regard to the hire or tenure of employment or the terms and conditions of employment of the employees listed in Appendix II williin the meaning of Section 8,'(3) of theAct. ORDER Upon 'the basis of the foregoing 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 re- spondent, Ford Motor Company, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with United Automobile Workers of America, Local No. 325, as the exclusive representative of the production employees at the St. Louis plant, including main- tenance employees, but excluding employees having power to hire or discharge, foremen, assistant foremen, subforemen, leaders, and' pushers, clerical and office employees, watchmen, and zonemen, in respect to rates of pay, wages, hours of employment, and other con- ditions of employment; 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Discouraging membership in United Automobile Workers of America, Local No. 325, or any other labor organization of its em- ployees, by discriminating in regard to hire or tenure of employment or any terms or conditions of employment; (c) Dominating or interfering with the administration of St. Louis Division of the Liberty Legion of America, Inc., or the formation or administration of any other labor organization of its employees, or contributing support to St. Louis Division of the Liberty Legion of America , Inc., or to any other labor organization of its employees; (d) Interfering with, restraining , or coercing its employees in the• exercise of the rights guaranteed in Section 7 of the Act by circulat- ing, distributing , or otherwise disseminating among its employees statements or propaganda which disparages or criticizes labor organi- zations or which advises its employees not to join such organizations; (e) 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 representatives of their own choosing, and to engage in con- certed activities for the purposes of collective bargaining or other mutual aid and protection as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request bargain collectively with United Automobile Workers of America, Local No. 325, as the exclusive bargaining rep- resentative of the employees in the unit herein found appropriate: (b) Upon application, offer to the individuals listed in Appendices I, IV, and VI, and to all employees not listed in any such appendix who left their work with the respondent and went on strike on or after November 24 , 1937, and have not since been reinstated , and to each of then, immediate and full reinstatement to their former or sub- stantially equivalent positions without prejudice to their seniority and other rights and privileges previously enjoyed by them, in the manner set forth in the section entitled "The remedy" above, placing those employees for whom employment is not immediately available upon a preferential list in the manner set forth in said section and there- after in said manner offer them employment as it becomes available; (c) Make whole the employees listed in Appendix I for any loss of pay they have suffered by reason of the respondent's discrimination in regard to their hire and tenure of employment : (1) By payment to each employee listed in Appendix I but not listed in Appendix V or Appendix VIII, of a sum of money equal to the amount which each normally would have earned as wages during the period from the date of the respondent's discrimination against ,FORD MOTOR COMPANY 387 him to the date of our Order herein and during the period from five (5) days after the date of his application for reinstatement to the date of the respondent's offer of reinstatement or placement upon the preferential list as required by paragraph (b) above, less his net earn- ings 92 during such periods; (2) By payment to each employee listed in Appendix V of a sum of money equal to the amount which each normally would have earned as wages during the period from the date of the respondent's discrim- ination against him to the date of the respondent's offer of reinstate- ment and during the period from five (5) days after the date of his application for reinstatement to the date of the respondent's offer of reinstatement or placement upon the preferential list as required by paragraph -(b) above, less his net earnings,93 during such periods; (3) By payment to each employee named in Appendix VIII of a sum of money equal to the amount which each normally would have earned as wages during the period from the date of the respondent's discrimination against him to July 2, 1938, the date of the Intermedi- ate Report, and during the period from five (5) days after the date of his application for reinstatement to the date of the respondent's offer of reinstatement or placement upon the preferential list as required by paragraph (b) above, less his net earnings 94 during such periods; provided that the respondent shall deduct from the amount otherwise due to each of the aforesaid persons a sum equal to that received by hint for work performed upon Federal, State, county, municipal, or other work-relief projects during said periods for which back pay is due him under the terms of this Order and shall pay any such amount deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which sup- plied the funds for said work-relief projects; 9. (d) Make whole all employees who on or after November 24, 1937, left their work to go on strike, and all employees not listed in Appendix I who refused to report to work pursuant to call because of the strike, for any loss of pay they may suffer by reason of the respondent's refusal to reinstate them or place them on a preferential list pursuant to the terms of our Order by payment to each of them, respectively of a sum of money equal to that which each normally would have earned as wages during the period from five (5) days after the date of his application for reinstatement to the date of the respondent's offer of employment or placement upon the prefer- ential list required by paragraph (b) above, less his net earnings 98 02 See footnote 91, supra 92 See footnote 91, supra 84 See footnote 91, supra 91 See footnote , 91, supra 96 See footnote 91, supra 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during that period, provided that the respondent shall deduct from the amount otherwise due to each of the aforesaid persons a sum equal to that received by him for work performed upon Federal, State, county, municipal, or other work-relief projects during said period for which back pay is due him under the terms of this Order and shall pay any such amount deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (e) Refuse to recognize St. Louis Division of the Liberty Legion of America, Inc., as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of work; (f) Post immediately in conspicuous places at its St. Louis plant, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), (c), (d), and ;e) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), (c), (d), and (e) of this Order; (3) that the respondent's employees are free to become or remain members of United Automobile Workers of America, Local No. 325, and the respondent will not discriminate against any em- ployee because of membership or activity in that organization; (g) Notify the Regional Director for the Fourteenth Region, in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply therewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent discriminated in regard to the hire and tenure of employment of the employees listed in Appendix II. AND IT IS FURTHER ORDERED that the petition for certification of representatives filed by the United Automobile Workers of America, Local No. 325, be, and it hereby is, dismissed. APPENDIX I-A The Board sustains the Trial Examiner's findings that the respond- ent discriminated in regard to the hire and tenure of employment of the 19 persons whose cases are discussed in this Appendix. Wilford J. Alain, was employed by the respondent continuously from January 26, 1935, to the September 1937 shutdown. On No- vember 16 , 1937, he returned to work and signed a statement of satisfaction at the request of Assistant Foreman Smiley. FORD MOTOR COMPANY 389 Three days later Alan talked to a group of union men outside of the plant during lunch hour. A watchman observed him and took his badge number. That afternoon Assistant Foreman Luly told Alan to take a couple of days off. Alan went to General Foreman Rose and complained that he was being laid off for having been seen talking to the union men. Rose did not deny Alan's assertion. The respondent claims that Alan was laid off for lack of work. At the time of his lay-off, however, the respondent was daily increasing the number of its employees. In spite of the fact that Alan was supposed to have been laid off only for a couple of days, he was never recalled. Alan's work has been taken over by James B. Lahey. Lahey's seniority was about the same as Alan's but his employment record shows seasonal lay-offs while Alan's employment was uninterrupted. The respondent's personnel records indicate that Alan's employ- ment was terminated on November 29, 1937, because he failed to re- port to work for 5 days in succession. Alan, however, did not quit. He was laid off on November 19 and was not recalled thereafter. The respondent's answer, as finally amended on March 22, 1938, abandoned the contention that Alan quit voluntarily. We find that the respondent laid off Alan on November 19, 1937, because he was observed conversing with union men, thus indicating continued interest in the Union. Berlyn Alcorn was employed continuously by the respondent from January 26, 1935, to the September 1937 shut-down. He received five wage increases during that time. In 1937 Alcorn was a tinner in the build-up plant, and admittedly a, good worker. The respond- ent recalled Alcorn on November 15, 1937. He started to work on the 16th and was immediately requested by Assistant Foreman Ed- ward Hanneken to sign a statement of satisfaction. He complied with the request. Three days later at lunch time Alcorn was approached outside the plant by a group of union men who asked him to tell an employee inside, designated as "Jack," to go to union headquarters that after- noon. Assistant Foreman Thomas Donelon was standing within hear- ing distance. That afternoon Alcorn was laid off. Foreman Bragg told him that there was not enough work, that he had to rotate the men, and that he would call him back in a few days. He was not recalled. Bragg's explanation to Alcorn is not plausible inasmuch as the number of employees was constantly increasing at this time. The respondent's personnel records indicate that Alcorn's employ- ment was terminated November 29, 1937, because of his failure to report to work for 5 days in succession. Alcorn, however, did not quit. He was laid off on November 19 and was not recalled. Alcorn's conversation with union men indicated his continued identification with the Union's cause, and was, we find, the reason 283034-41-vol 23-26 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for his lay-off. The respondent discriminated against Alcorn on and after November 19, 1937. Alex R. Boeckstiegel worked continuously for the respondent from October 29 , 1934, to November 12, 1937. He received six wage increases, the last of which brought" his hourly rate , to $1.05 ' per'hour: He 'was employed as an electrician . Whiteknight , foreman of the maintenance department , testified that Boeckstiegel performed the work of an assist- ant chief electrician , although he did not have that title. Boeckstiegel was an exceptionally good worker. During the 1937 shut-down , while Boeckstiegel was still working, Assistant Foreman Nalley , according to his own testimony , tried by interrogating Boeckstiegel to ascertain his exact attitude toward the Union. Boeckstiegel testified that in response to an inquiry by Nalley he indicated his disapproval of a company union. Boeckstiegel was laid off on November 12, 1937, for having sworn at Assistant Foreman Sivley . This incident between Boeckstiegel and Sivley took place in one of the elevators in the plant . Sivley told Frank Willot, the elevator operator, in Boeckstiegel 's' presence: "Frank, here is Boeck. Here is a big husky fellow and he will help you through the line Monday morning when the pickets are out." Boeckstiegel retorted, "I will not help him or any other scab get in to work. " Sivley admitted making the above statement and said he got a "good cussing" for it from Boeckstiegel . Sivley reported the inci- dent to Superintendent Mabie and Boeckstiegel was laid off . The re- spondent 's personnel records indicate that Boeckstiegel 's employment was terminated on December 23,1937, pursuant to Medical Letter No. 3. Although the respondent 's answer asserts that the respondent will never reinstate Boeckstiegel because it believes him guilty of unlawful and wrongful acts, the record indicates that the respondent's sole actual complaint against Boeckstiegel is that the latter voiced resent- ment of Sivley 's suggestion that he would serve as a strikebreaker. We find that by laying off Boeckstiegel on November 12, 1937, the respondent discriminated against him because of his demonstrated loyalty to the Union. Bernardt C. Dieh,n and Leo P . Schmalz were employed as stock pickers. Diehn's employment record shows only a week's interrup- tion of employment since 1923 . Schmalz has been employed con- tinuously since 1935 . They were laid off on October 8 and 11, 1937, respectively. Diehn and Schmalz were recalled to work about October 15, 1937. They wore their union buttons until the other employees warned them against continuing to wear them . When asked to attend meetings held in the plant by the anti-union group under the leadership of James FORD MOTOR COMPANY 391 Kilzer and Benny La Presta,97 they refused until Foreman Kluesner told them to attend. They were also asked to sign statements of satis- faction but both of them refused to do so. Their refusal to sign was known to a dumber, of employees ..in the plant.. Employee George Knopf testified that "when I heard from Gus Krumme198 that Diehn had not signed one of these statements I took on myself to go down and find out what was the matter with him, why he wasn't going to stay with us fellows...." Employees Currat and Reardon testified to the same effect-about Schmalz. Both Diehn and Schmalz expressed their opposition to the statement to Assistant Foreman Beiser. On October 18 the two-men simultaneously put on their union buttons again. Schmalz was laid off on the same day and Diehn 2 days later. Diehn had more seniority than either Guy Murphy or John Visten, the other two stock pickers in the plant who remained at work. Sclunalz had less seniority. However, in view of the pressure put on these men to repudiate the Union, we are satisfied that both were laid off because of their refusal to join in the anti-union movement. We find that they were discriminated against on October 18 and October 20, 1937, respectively, because of their union activities. Oscar C. Johnson started to work for the respondent on March 8, 1937, and, except during regular shut-downs, was employed continu- ously thereafter until September 1937. In 1937 lie did stock weld- ing, mounting skids,-tightening bolts, etc. He was admittedly a good worker. On October 21, 1937, the respondent wired Johnson to report to work at once. Johnson reported. He was not wearing a union but- ton. Upon showing the telegram, he received a new Ford badge and was told to come to work on the following morning. Johnson did so, this time wearing his union button. Claude Eidson, assistant foreman, saw him outside of the gate and told him to take off his union button because otherwise he would not be able to get in. In spite of the warning, Johnson went to the gate without removing the button. The watchmen stopped 'him, saying: "There must be some mistake. I can't even let you through." Johnson was not reinstated. We find that Johnson was refused work on October 27 because he was wearing a union button. Johnson was recalled again on December 14, 1937, but refused to return to work because the strike was then in progress. . Archie T. Kiser worked for the respondent continuously from November 30, 1936, until the 1937 shut-down as an unloader. Kiser was called back to work after the shut-down on October 27, 1937. When lie reported wearing his union button, the watchman 9T Kilzer became president and La Presta vice president of the Liberty Legion, herein- after found company-dominated 91 Krummel was the chief circulator and custodian of the statements 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD informed him that the stock had' not come in and that he would be called when needed. He has not been called since. Another unloader, James Grodie, with less seniority than Kiser, was hired the day after Kiser was told that there was no work. Kiser has not been called since then, the respondent's personnel records indicating that his employment was terminated on December 23, 1937, pursuant to Medi- cal Letter No. 3. The respondent's answer characterizes Kiser as inefficient. How- ever, Foreman Spellmeyer testified that Kiser was a fairly good worker and there is no evidence in the record indicating Kiser's inefficiency. We find that the respondent refused to reinstate Kiser on October 27, 1937, because he wore his union button. Paul G. Lohrum started to work for the respondent on January 16, 1935, but was laid off 5 months later. He was employed again in November 1936 and continued to work until the shut-down in 1937. In that year he gauged windshields and installed striker and inspec- tion plates. On Friday, November 5, 1937, the respondent wired Lohrum to return to work. He reported for work the following Monday morn- ing wearing his union button. Factory Service Manager Gantner told him that the stock had not come in and that he would be called in a day or so when it arrived. He was never recalled. The respond- ent telegraphed to 28 other employees on that day and continued to reinstate employees daily thereafter. The respondent's personnel records indicate, and its second and third amended answers allege, that Lohrum's employment was ter- minated on November 12, 1937, because he had ignored the request to return to work on November 5, 1937. Lohrum did report to work but Gantner refused to employ him. The respondent's fourth amended answer, dated March 22, 1938, alleged that the respondent would never rehire Lohrum because it believed him to be guilty of "unlawful and wrongful acts." As hereinabove stated, this assertion is without bearing upon the alleged discrimination. We find that the respondent refused to reinstate Lohrum on November 8, 1937, because he reported wearing a union button. Chester C. Mitchell started to work for the respondent on March 6, 1935. He was laid off at the time of the shut-down in September 1937. He was a metal finisher. On November 4, 1937, Mitchell received a telegram requesting him to report for work. On the following day he returned. He worked for 3 days. While at work Mitchell was asked by Assistant Fore- n ien Lamb, Pettit, Eidson and Hanneken, to sign statements of satis- faction, but refused to do so. On November 9, the third day of work he was again asked to sign but he remained firm in his refusal. At FORD MOTOR COMPANY 393 the end of that day Foreman Bragg told Mitchell that he had to rotate the work and would have to lay Mitchell off. We find that the respondent laid off Mitchell on November 9, 1937, because of his refusal to sign a statement of satisfaction. The respondent did not call Mitchell again until December 3, 1937, after the strike started; the telegram then sent was not received by Mitchell. Ray Morris worked for the respondent intermittently from 1926, and continuously from January 1935 to the time of 1937 shut-down. He was a metal finisher. Morris was recalled after the shut-down on November 2, 1937.' He signed a statement of satisfaction. However, he attended the strike meeting on November 7 and made a speech. Two days later he was laid off. Assistant Foreman Morrison testified that they had three metal finishers in the plant at that time, namely, Morris, Hagerling, and Moore, and that Morris had to rotate with the other two men. Assistant Foreman Grodie testified that he rotated these three men and also Chier. However, the records show that Hagerling and Moore did not return to work until December 2 and 3, respectively, and that Chier was recalled only on November 16. Furthermore 27 em- ployees were reinstated on November 9, and 18 on the following day. Inasmuch as the other metal finishers were not even in the plant at the time of Morris' lay-off and inasmuch as the respondent recalled a number of employees on that very day, it is obvious that the testi- mony of Assistant Foremen Grodie and Morrison is not reliable. Morris has not since been recalled. The respondent's personnel records indicate that his employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. We find that Morris was laid off on November 9, 1937, because he had attended a union meeting. Enoch M. Ray worked for the respondent continuously from Janu- ary 30, 1935, until the shut-down of September 1937. His operation was tacking on fenders. There is no complaint about his work. The respondent recalled Ray, after the shut-down, on October 21. He reported for work wearing his union button. The watchman told him to return the following day. He did so. When Ray came back the next day he was told to wait for Gantner, manager of the factory service department. Gantner said : "I have made a mistake. I didn't intend to send for you today. We are only running short of work. I can't use you now and I will let you know when I can use you." Ray has not been called back since then. The respondent's personnel records indicate and the respondent's answer states that Ray's employment was terminated on October 28, 1937, because he failed to report for work within 5 days after he was requested to do so. The respondent's contention is without merit. 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ray did report for work but Gantner refused to reinstate him. We find that the respondent refused to reinstate Ray on October 22, because he was wearing a union button. Ernest Stark was employed by the respondent regularly from April 16, 1929, to the September 1937 shut-down. He received eight wage increases after 1935, the last one, on June 22, 1937, bringing his wages up to $1.05 per hour. In 1937 he supervised the work of six men on assembly deck leads. The evidence indicates that he was an exceptionally good worker. Stark was called back on November 5, 1937. A few days later he signed a statement of satisfaction at the request of Assistant Fore- man Goellner. On Saturday night, November 13, Stark attended a union meeting and made a speech there. On the following Monday, James Kilzer, a leader of the anti-union movement, told Stark that "the rest of the boys thought he wasn't pulling with them." Stark thereupon told Kilzer that he had attended the union meeting and had spoken there. Assistant Foreman Hanneken approached Stark to find out how he "felt about things," and Stark referred him to Kilzer. On the next day, November 16, Stark was laid off. Stark was not called again until December 10, at which time he refused to return to work because the strike was then in progress. We find that the respondent laid off Stark on November 16, 1937, although it needed his services, because of his union sympathies known to the respondent. Guy Stroup started to work for the respondent on January 26, 1935. He was laid off at the time of the September 1937 shut-down. Stroup was employed as a metal finisher; there was no complaint about his work. On November 5. 1937, the respondent recalled Stroup. He re- ported in the evening of November 7 and was told by James Parr, of Gantner's office, that he could get his badge on the following work- ing day. Stroup reported for work as directed but wore his union button. Gantner told him that the stock had not arrived yet and that he would be sent for later. On November 8, 28 men were rein- stated and the number of employees continued to increase up to the time of the strike, but Stroup was not recalled. The respondent's answer states that the respondent will not re- instate Stroup because it believed him to be guilty of "unlawful and wrongful acts." As herernabove stated, this assertion is without bearing on the alleged discrimination. The respondent's personnel records indicate that Stroup's employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. We find that the respondent refused to reinstate Stroup on Novem- ber 8, 1937, because he wore his union button. FORD DIOTOR COMPANY 395 Bernard Thread was employed by the respondent from February 5, 1935, until the shut-down in 1937. His operation consisted of finishing 'panels. Foreman Bragg, testified that Thread was, a•good worker. Thread was recalled on November 2, 1937. He reported for work with another employee. Both men were wearing union buttons. Thread testified that Assistant Foreman Hanneken told him that if he would take off his union button he could go to work, and that the other applicant went to work without his button after Hanneken talked to him. Thread kept on his button and was not employed. Hanneken denied having urged Thread to remove his button, testify- ing that Thread told him he did not care whether he would be re- instated because they were going out on strike in a few days anyhow. This testimony does not seem plausible since Thread reported at the plant in answer to a telegram recalling him to work. In the light, moreover, of Hanneken's participation in the statements-of-satis- faction movement, we believe Thread's testimony regarding Han- neken's remarks. The respondent terminated Thread's employment on December 23, 1937, pursuant to Medical Letter No. 3. We find that the respondent had work for Thread on November 2, 1937, but did not reinstate him because he was wearing a union button. Will'am, G. Tunze started to work for the respondent on February 7, 1928, and, except for the regular hut-downs, worked continuously thereafter until October 10, 1937. Tunze is a machinist and too] maker. He received five wage increases, the last one, on June 22, 1937, bringing his wages to $1.00 an hour. In October 1937 Tunze was asked to sign a statement of satis- faction. At first he refused, then he signed. On October 19 he attended a union meeting and spoke about the statements. The fol- lowing afternoon he and Lengyel, another machinist, were laid off. Lengyel was recalled on November 5, 1937. Tunze was not recalled. In addition to Tunze, there are four machinists employed in the plant. Tunze has 5 years' more seniority than three of the four other ma- chinists. In spite of that, all four were recalled and Tunze was not. The respondent's personnel records indicate that Tunze's em- ployment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. We find that the respondent laid off Tunze on October 20, 1937, in spite of his seniority and ability, because of his participation in the union meeting. Charles Tuscho f worked for the respondent intermittently from April 10, 1929, until the shut-down in 1937. His operation was fitting deck leads, and he did consistently good work. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tuschoff was reinstated after the shut-down on November 5, 1937. Four assistant foremen approached him during the first day to get him to sign a statement of satisfaction. He signed in the afternoon. Two days later he attended a union meeting. During the day fol- lowing the meeting Assistant Foreman Goellner asked Tuschoff whether he had attended the meeting and, on receiving an affirmative answer, said, "Well, brother, you'd better go with them then." Tuschoff then put on his union button. On November 9 Foreman Bragg laid off Tuschoff. Assistant Foreman Hanneken testified that since production began in the fall the only man he saw wearing a union button was Tuschoff. He added that prior to the shut-down Tuschoff's work was "all right but after he got back he had trouble getting it past the inspectors." The respondent's personnel records indicate that Tuschofl's employment was terminated on December 23, 1937, pursuant to Me-lical Letter No. 3. We find that the respondent laid off Tuschoff on November 9, 1937, because lie attended a union meeting and because he wore his union button. Robert Vancil started to work for the respondent on'January 9, 1930, and was employed continuously until September 1937, except for regular shut-downs. In 1937 he soldered posts on the cab line. The respondent recalled Vancil by telegram on November 5, 1937. He reported and was told to come to work on the following Monday. Assistant Foreman Walters visited him during the evening of Novem- ber 6 and told Vancil that he (Walters) did not belong to the Union an(' that the employees in the plant were not wearing union buttons. In spite of this warning Vancil reported to work on Monday, Novem- ber 8, 1937, wearing his union button. The watchman stopped him and told him : "Well, I guess they are not going to let you in." Fac- tory Service Manager Gantner told him that he would be sent for when the stock arrived. On November 8, 1937, the respondent rein- stated 28 employees, and on the following day 25 more. We find that the respondent failed to reinstate Vancil on November 8, 1937, because he persisted in wearing his union button. Vancil was not called again until December 10, 1937, at which time he did not return because the strike was then in progress. Otto B. Vondera started to work for the respondent in 1923 and worked for 3 years. He was reemployed for a few months in 1935 and again in 1936. At the time of the shut-down in 1937 he installed insulation strips and packed in the retainer with Raymond E. Laramore.e8 Vondera signed a statement of satisfaction when requested by Assist- ant Foreman Hanneken to do so. After the shut-down, on November 99 See Appendix I C 1. FORD MOTOR COMPANY 397 2, 1937, he received a letter asking him to report to work. He reported wearing his union button. The watchman stopped him and went to see Factory Service Manager Gantner. When the watchman returned he told Vondera : "Nothing doing, they said they would let you know in a day or so." Gantner testified that Vondera was sent for but the respondent could not use him because the stock he expected did not come in. However, the respondent added 13 new men to its pay roll on the day of Vondera's attempt to gain entry and continued to reinstate men every day thereafter up to November 23. Vondera has not been called back since. The respondent's personnel records indicate that Vondera's employment was terminated on December 23, 1937, pursu- ant to Medical Letter No. 3. We find that the respondent needed Vondera's services on November 2, 1937, but refused to employ him because he wore a union button. Adam F. Welsch was employed regularly by the respondent from March 3, 1921, until the 1937 shut-down. He worked as a prime paint sprayer and was admittedly a good worker. When Welsch went back to work after the shut-down on November 9,1937, he did not wear his union button, but after working for a short time,'he put the button on. Assistant Foreman Cook told him that "the best place to wear his union button is in his pocket." Assistant Foreman Emerson asked Welsch to sign a statement of satisfaction. Welsch at first refused and signed later only after much persuasion. He was seen by Assistant Foreman Shaw to be talking to Shop Steward Conn in front of the plant. On November 16 Welsch was laid off; he was told that he would have to rotate with other men. Although the respondent increased the number of its employees daily during the month of November up to the time of the strike, Welsch was not recalled. The respondent states in its fourth amended answer that it will never rehire Welsch because it believes him guilty of "unlawful and wrongful acts." As hereinabove stated, this defense is without bear- ing on the alleged discrimination. The respondent's personnel records indicate that Welsch's employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. We find that the respondent laid off Welsch, an old and competent employee, on November 16, 1937, because he has given indication of continued loyalty to the Union. APPENDIX I-B The Board finds that the respondent discriminated in regard to the hire and tenure of employment of the 53 union officials whose cases are discussed in this appendix. Thirty-two are cases in which the 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trial Examiner made a similar finding. In 21 cases the Trial Exam- iner found no discrimination and the Board reverses his finding. 1. Cases in which the Trial Examiner found discrimination Odia Beare started to work for the respondent on July 23, 1928, and-was. employed continuously thereafter , except during shut-downs, until the September 1937 shut-down . He last received an increase in wages on June 18, 1937 . During 1937 he installed radios. Beare joined the Union in April 1937 , and was elected and reelected shop steward and trustee . Assistant Foreman Maurer testified that he had no complaints about Beare except that "he did a lot of running around the plant and talking to different fellows." Maurer admitted that he knew that Beare was a shop steward, and that at least some of his absences from his operation were due to his conferences with Superintendent Mabie on union matters . Maurer also testified that he "couldn't say" that Beare ever held the line up by his absence and that he never reprimanded Beare about leaving his job. Similarly, Foreman Schesser 's principal complaints were that Beare "had wan- dering feet" and that he could not get past anyone without asking him to join the Union. It is apparent from his superiors ' testimony thit Beare's activities were not resented by them because of interference with his work but because such activities fostered the Union. The respondent claims that Beare will not be reinstated because it believes him to be guilty of "unlawful and wrongful acts. " For the reasons liereinabove stated , this defense is without bearing upon the alleged discrimination. ( lifton E. Stoker and Earl Schmidt who, prior to the shut-down, had the operation of installing donne lights , and whose seniority dates from 1930 and 1935, respectively , were called back to work prior to the start of production . Since November 15, 1937, Beare's operation of installing radios has been assigned to Stoker , who also performs some of his own former work. Schmidt has returned to his old operation . Although Stoker and Schmidt are members of the Union, neither took any part in its activities . Stoker signed a statement of satisfaction when he applied to Assistant Foreman Husser for work. We find that the respondent failed to recall Beare on November 15, 1937, because of his conspicuous activities on behalf of the Union. Fred H. Beeler started to work for the respondent on November 9, 1934, and worked continuously until October 14, 1937, when he was laid off. Beeler is one of nine electricians employed by the respond- ent before the shut-down . Six of these men were working at' the time of the strike. Beeler had two years more seniority than either Rupert Haas or Gus Marghelis , two of the electricians retained. Fore- man Whiteknight testified that Beeler used to be a "real good worker." FORD MOTOR COMPANY 399 but that in 1937 "he was bothering men throughout the plant .. . trying to get them to join the Union, trying to collect dues." He claimed that he laid off Beeler because the latter threatened other workers and because he drank. Whiteknight admitted, however, that when he heard of the threats attributed to Beeler he felt they were none of his business. Beeler testified that he drank no more in 1937 than in earlier years. There is no evidence that his drinking inter- ferred with his work. Beeler was a member of the Union's executive committee, and an active participant in all of its work. The respondent's answer alleges that it will never rehire Beeler because it believes him guilty of "unlawful and wrongful acts." As hereinabove stated, this defense is without bearing upon the alleged discrimination. The respondent terminated Beeler's employment on December 23, 1937, pursuant to Medical Letter No. 3. We find that the respondent laid off Beeler on October 14, 1937, and has since terminated his employment, despite his seniority over men now working, his continuous employment, and the need for liis services, because of Beeler's union office and activity. Arnold TV. Been started to work for the respondent on September 23, 1925, and worked continuously until 1930 when his employment was terminated pursuant to a reduction in force. He returned to work January 19, 1935, and continued in the respondent's employ until the September 1937 shut-down. Been received five wage in- creases during his employment, the last one on June 18, 1937. In 1937 he installed head liners in commercial cabs. Foreman Schesser and Assistant Foreman Coff testified that Been became careless in April. Been became a shop-,steward of the Union on May 26, 1937, and was prominent in union activities. On November 5, 1937, Glen Cromwell was called in and assigned Been's work in addition to his own former operations. Although a member of the Union, Cromwell signed a statement of satisfaction upon Assistant Foreman Smiley's solicitation. Toward the end of October, prior to his recall, Foreman Schesser cautioned him against activity in the Union. Cromwell testified that he followed Schesser's advice. Cromwell's employment with the respondent started on February 16, 1935, but was soon interrupted by a five months' lay-off. Thereafter, he returned in November 1935 and worked continuously until the 1937 shut-down. The respondent asserts that it will not reinstate Been because it believes him guilty of "unlawful and wrongful acts." For the reasons hereinabove stated, this defense is without bearing upon the alleged discrimination. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It thus appears that Been, whose continuous employment and over- all employment both exceed Cromwell's, and who was a union shop steward, was replaced by Cromwell who had given indication of his abandonment of the Union. We find that the respondent failed to recall Been on November 5, 1937, because of his status and activity in the Union. Kurt E. Buese started to work for the respondent on October 17, 1928, and resigned in August 1933. He returned in 1935 and worked continuously thereafter, until October 8, 1937, when he was laid off. The respondent's personnel records indicate that Buese's employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. Buese was one of four stock checkers who filled special orders. The other three were John B. Zeller, George W. Buermann, and Leon Strauss. The respondent's answer alleges that Buese was in- efficient, but Foreman Kluesner testified that he had been "one of my best men" that later "he got on that union business there, he . . . would run around, chew the rag and work an order and there I had to be in back of him." Buese joined the Union, was very active in its work, serving as a shop steward. The three men who worked with him were not members of the Union. One of them, Zeller, had approximately five years less seniority than Buese. All three worked continuously through the shut-down in 1937 at filling orders from dealers pur- chasing Ford parts and supplies. Only Buese, the one man in this group who was an active union member, was laid off on October 8, 1937. We find that the respondent laid off Buese on October 8, 1937, because of his union status and activity. Adel Casey started to work for the respondent on February 5, 1935. Thereafter he lost approximately 6 months in lay-offs. He was finally laid off in the September 1937 shut-down. The respondent's personnel records indicate that Casey's employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. In 1937 Casey installed radiators and gas tanks with Ben Juley.100 Assistant Foreman Rabb testified that Casey was a poor worker, lethargic, and "smart alecky." It is apparent, however, from Rabb's entire testi- mony that his attitude toward Casey is attributable to Casey's union activities. Casey joined the Union at its inception, and was a very active member. He served the Union as a shop steward. On November 9, 1937, the respondent recalled Earl G. Bean, whose seniority commenced on August 20, 1936, and gave him Casey's 100 See Appendix I-C 1 FORD MOTOR COMPANY 401 job. Before the shut-down Bean had installed spark plugs on the motor line. Bean joined the Union in May but did not take any part in its activities. The respondent asserts that Casey will not be reinstated because it believes him guilty of "unlawful and wrongful acts." For the reasons hereinabove stated, this defense is without bearing upon the alleged discrimination. We find that. the respondent failed to reinstate Casey, in spite of his seniority and experience on the job, because of his office and prominence in the Union. Robert Conn was employed by the respondent intermittently from May 5, 1932, to the September 1937 shut-down. The respondent's personnel records indicate that Conn's employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. At the time of the shut-down Conn inserted "dum-dum," an anti-squeak rubber substance. He was an admittedly good worker. Conn was a shop steward. His union activities were known to his superiors. On November 15, 1937, Leo Andryeski was put on the operation formerly performed by Conn. Although Andryeski has somewhat more seniority than Conn, his job before the shut-down consisted of washing and hanging car bodies, and required less skill and ex- perience than that performed by Conn. Although a member of the Union, Andryeski signed a statement of satisfaction. The respondent claims Conn will not be reinstated because it be- lieves him guilty of "unlawful and wrongful acts." As hereinabove stated, this defense is without hearing upon the alleged discrimi- nation. We find that on November 15, 1937, the respondent failed to recall Conn because of his office and activity in the Union. Joseph L. Cooper started to work for the respondent on January 17, 1935, and worked continuously until September 20, 1937, when he was laid off. The respondent's personnel record indicates that Cooper's employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. In 1937 Cooper's work consisted for the most part of riveting frames and spring hangers on trucks. Foreman Bates and Assistant Foreman Rabb testified that Cooper was a fair worker, but both com- plained about his leaving his job. It appears that he left it to see Superintendent Mabie, with whom he used to discuss grievances for the Union. The respondent's supervisory employees never com- plained to Cooper about this, nor requested the grievance committee of which Cooper was a member, to meet Mabie after working hours. In fact, the respondent provided helpers to take the place of Cooper and others while they were in conference. 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cooper joined the Union at its very beginning, was elected tem- porary and then permanent chairman of the organizing committee, and later recording secretary. His activity in the Union was well known. Foreman Bates testified that he thought Cooper was one of the most active union men in the department and spent a good deal of time in running around on union business, and that he took these facts into consideration in recalling men after the shut- clown. On November 9, 1937, Richard E. Trotner, whose seniority dates from November 20, 1936, and who at the time of the shut-down drove cars off the assembly line, was recalled and was given Cooper's work. The respondent asserts that Cooper will not be reinstated because it believes him guilty of "unlawful and wrongful acts." As here- inabove stated, this defense is without bearing upon the alleged discrimination. We find that the respondent failed to reinstate Cooper on Novem- ber 9, 1937, because of his prominent union activities. Frank Gruswitz and Plummer Forrest started to work for the respondent in March and in November 1935, respectively. Both were laid off in the September 1937 shut-down. The respondent's per- sonnel records indicate the employment of Gruswitz and Forrest was terminated on December 23, 1937, pursuant to Medical Letter No. 3. Both men formerly worked with Foreman Bragg at General Motors and were recommended by him to Superintendent Mabie as experienced metal finishers. They were given the job of finally checking cars at the end of the assembly line, a task requiring great skill. At the hearing, Bragg complained about the work of Grus- witz and Forrest but his testimony on cross-examination was so patently evasive and contradictory that we cannot give credence to it in light of other evidence of the high skill and efficient work- manship of Forrest and Gruswitz. Both men were leaders in the formation of the Union and in its activities. Both were members of the executive committee; in No- vember Gruswitz was elected financial secretary. The respondent claims that Gruswitz and Forrest will never be rehired because it believes them guilty of "unlawful and wrongful acts." As hereinabove stated, this defense has no bearing upon the alleged discriminations. The evidence does not establish clearly who worked on the opera- tion formerly performed by Gruswitz and Forrest when production started. Apparently Marvin Taylor, Eugene Gimm, Arthur Cole- man, Clarence Blessing, and Jack Goellner all worked on this opera- tion in the month of November. FORD MOTOR COMPANY 403 We are of the opinion that Gruswitz and Forrest lost their chance of reinstatement because of their union status and activities. We find that on November 15, 1937, when production started, the re- spondent discriminated against them by failing to recall them. James C. Hagan worked for the respondent from May 6, 1932, until -they 1937 shut-down continuously, except during the depression shut-down of 1932-1934, and during a 4 months' lay-off in 1935. He was laid off in the shut-down and the respondent's personnel records indicate that his employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. During 1937 Hagan worked together with Harry W. Clyne, Alex Graham, William R. Crawford, Duncan Gant, and Justin Kniemeyer, installing felt on the inside of doors. Hagan had the most seniority in the group. Duncan Gant, whose seniority did not commence until January 19, 1935, and who was taught this operation by Hagan, was recalled on November 4, 1937. Hagan has not been recalled. During the shut-down, and the resumption of the operations Gant, although a member of the Union, was very active in the circulation of statements of satisfaction among the workers, and told many of them that they could not get back to work unless they signed such a statement. He asked Hagan whether he would sign a statement of satisfaction. Hagan indicated that he was willing to do so but declared that at the same time he would not go through a picket line. The statement of satisfaction was not presented to Hagan for his signature. Hagan was active in the Union as a member and later as a shop steward. We find that the respondent failed to recall Hagan on November 4, 1937, because of his activity and oflice'in the Union. William Jedlisk:a started to work for the respondent on January 16, 1935, and was employed continuously thereafter until the shut- down in 1937, when he was laid off. The respondent's personnel records indicate that Jedliska's employment was terminated on De- cember 23, 1937, pursuant to Medical Letter No. 3. Jedliska re- ceived five wage increases, the last one on June 22, 1937. Assistant Foreman Grodie testified that Jedliska was a good worker and was held responsible for his own work and that of Gus Claus and Jack Howard. Their job was wiring small parts for washing. All three were members of the Union. Jedliska, however, was the only one who held office, that of a shop steward. Assistant Foreman Eidson warned Jedliska before production started that he could still repudiate the Union and tell Grodie that he was sorry and get back his job. Eidson denied having made the statement, but in the light of his activity in connection with the statements of satis- faction we cannot give credence to his denial. On November 16, 404 DECISIONS Or NATIONAL LABOR RELATIONS BOARD 1937, the respondent recalled Jack Howard for the operation formerly performed by himself and Jedliska. Although Assistant Fore- man Grodie testified that Jedliska broke in Howard on the job and although Jedliska was held responsible for the work of all three men, he has not been recalled. The respondent claims that Jedliska will not be reinstated because it believes him guilty of "unlawful and wrongful acts." As herein- above stated, this defense is without bearing upon the alleged discrimination. We find that the respondent failed to recall Jedliska on November 16, 1937, because of his union office and activity. James Keelan commenced to work for the respondent on September 21, 1923. He was laid off in 1926 and reemployed in 1935. He was discharged in 1936 for insubordination but was reinstated two months later. At the time of his lay-off in the 1937 shut-down Keelan's em- ployment totaled approximately 63 months. The respondent's per- sonnel records indicate that Keelan's employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. Foreman Bragg testified that Keelan was a good worker. In 1937 he worked on the skids in the body shop with Will Francis, David Allen, and Clarence Grahn. According to Assistant Foreman Pettit the quality of the four men's work was about the same. All four men joined the Union, but Keelan alone held office, serving as a shop steward. Grahn, whose seniority was about 2 months less than Keelan's, stopped paying dues in June, signed a statement of satisfaction, and was recalled to work on November 2. Allen, who has worked less than 45 months for the respondent, also stopped pay- ing dues in June. He was recalled on November 9. Francis, whose seniority is somewhat greater than Keelan's and who continued to pay dues until September, was called back during the strike on Decem- ber 2. Keelan was not recalled. The respondent claims in its last amended answer that Keelan will not be reinstated because it believes him guilty of "unlawful and wrongful acts." As hereinabove stated, this defense is without bearing upon the alleged discrimination. We are of the opinion that Keelan's status as a union official pre- vented him from obtaining reinstatement after the shut-down. We accordingly find that the respondent failed to recall Keelan on or about November 15, 1937, when production started, because he was an active officer of the Union. Allen 0. Kern started to work for the respondent on June 7, 1924. His work was interrupted several times by lay-offs and his actual employment aggregated approximately 61/2 years. Prior to his lay-off on September 15, 1937, he assembled cushions in the trim department. FORD MOTOR COMPANY 405 Kern joined a local of the United Automobile. Workers of America while working in the General Motors St. Louis plant in 1933, and transferred to the Ford local when it came into existence. He was on the committee which protested Olive's discharge on April 7, 1937, and continued to serve as a union committeeman. On November 16, 1937, Kern's operation was given to John West- tenberger, whose seniority dates only from November 28, 1936, and who, prior to the shut-down, was on a different operation. The respondent's personnel records indicate that Kern's employ- ment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. The respondent claims that because of inefficiency, Kern had not been and will not be reinstated. The only testimony to support the charge of inefficiency is to the effect that Kern was inclined to be playful, talked and sang a lot, and once wore bathing trunks to work. Kern was loquacious on the witness stand and admitted singing at work. There is no evidence that his talking, singing, or any other antics interfered with his work. The length of his employment and the fact that he received a wage increase on July 18, 1937, indicate him to be a satisfactory worker. We find that the respondent failed to recall Kern on November 16, 1937, in spite of his seniority and experience because Kern was a Com- mitteeman and an active member of the Union. Esco Key started to work for the respondent on April 1, 1929, but his employment was interrupted by several lay-offs, and his total service only aggregated approximately 4 years. At the time of the 1937 shut-down, he and Harry Kreutz installed parts on the front axle, while Owen J. Thomas and James C. Rayfield assembled the rear axle . Thomas started to work for the respondent on March 9, 1928, but a week later he was discharged and was not reemployed again until January 15, 1935. Rayfield and Kreutz started to work on February 7, 1935, and on November 25, 1936, respectively. Key thus had considerably more actual service than any of the others. Foreman Bates and Assistant Foreman Rabb both testified that Key was a fair worker. Although all four men in the group were members of the Union, only Key held office, that of a shop steward. The other three em- ployees signed statements of satisfaction and were recalled to work. Thomas and Rayfield assemble both axles and Kreutz has been trans- ferred to the radiator-grill operation. Rayfield was recalled on October 27, 1937, because he "can do any operation on the front system." The same, however, was true of Key, whose regular job had been on the front axle, while Rayfield had worked on the rear. Key was recalled in December, but he refused to return to work because of the strike. 283034-41-vol. 23--27 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that by failing to recall Key on October 27, 1937, the respondent discriminated against him for his union activity. William A. Kimberling was employed by the respondent on Janu- ary 18i 1935. Prior to his lay-off in the 1937 shut-down, his employ- ment was interrupted for only 3 weeks during 1935. Kimberling's employment record was terminated on December 23, 1937, pursuant to Medical Letter No. 3. In 1937 Kimberling worked with Walter Flint installing lazy backs (backs of rear seats), cleaned out the car bodies with an air hose, and installed package trays. Before the shut-down the operation per- formed by Kimberling was considered a separate operation. Since then this work has been consolidated and is now being performed by Walter Landis and Harry Sexton. Foreman Schesser testified that Kimberling was a good worker until 1937, when he thought his business came before the respondent's business. Assistant Foreman Smiley testified that Kimberling had a lot of outside interests, namely, union activities. Kimberling was one of the original organizers of the Union at the Ford plant. He was president of the Union from the beginning and was prominent in all its activities. Landis was recalled on November 9, 1937, and transferred from his former job of window washing to Kimberling's operation. He has 15 months more seniority than Kimberling. The respondent asserts that it will not reinstate Kimberling be- cause it believes him guilty of "unlawful and wrongful acts." For the reasons hereinabove stated, this defense is without merit. Although the man who supplanted Kimberling had greater seniority, he was transferred to Kimberling's job from an entirely different operation. We find that the respondent discriminated against Kimberling on November 9, 1937, because of his leadership in the Union. Zelmer F. Kirk and Howard J. Thebeau were employed by the respondent in January 1935. They were laid off in the September 1937 shut-down. The respondent's personnel records indicate that the employment of both Kirk and Thebeau was terminated on De- cember 23, 1937, pursuant to Medical Letter No. 3. Kirk and The- beau were 2 of the 19 wet sanders employed at the time of the 1937 shut-down. Foreman Stanze testified that the 19 were "so equal you could not actually judge who to pick out." Both Thebeau and Kirk were union shop stewards. On November 9, 1937, the respondent recalled wet sanders Ringo, Chapman, Harter, and Gegg. Their respective seniorities date from December 1, December 3, November 13, and December 2, 1936. All had considerably less seniority than Kirk and Thebeau. FORD MOTOR COMPANY 407 The respondent's third amended answer alleged that it would never rehire Thebeau because it believes" him guilty of "unlawful and wrongful acts." As hereinabove stated, this defense has no bearing upon the alleged discrimination. We find that respondent replaced Kirk and Thebeau on November 9, 1937, with men who had substantially less seniority, because of their office and activity in the Union. Fred LaRowe started to work for the respondent on January 17, 1935. Except for a week's interruption in 1936, he worked con- tinuously until the 1937 shut-down. The respondent's personnel rec- ords indicate that LaRowe's employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. At the time of the shut-down, LaRowe installed hoods together with Lester E. Barker and John P. Tice. Although Foreman Bates claimed at the hearing that the quality of LaRowe's work was unsatisfactory, he testified that after LaRowe quit in 1936 because the chassis foreman could not get along with him, he called LaRowe back just as soon as that foreman left. We conclude that LaRowe was not lacking in ability. LaRowe was very active in the Union as a shop steward. Woodrow Johnson and Jack Fancher whose seniority date from November 23 and December 2, 1936, respectively, were called back on November 9, 1937, and given the operation of hood assembly and installation. Apparently they had no experience on this operation, and required the special attention of assistant foreman and others. Although Fancher and Johnson were members of the Union, both signed statements of satisfaction before they were recalled to work. The respondent asserts that LaRowe will not be reinstated because it believes him guilty of "unlawful and wrongful acts." As hereinabove stated, this defense is without merit. We find that the respondent failed to recall LaRowe on November 9, 1937, in spite of his seniority and experience on the job because of LaRowe's office and activity in the Union. James F. Martin started to work for the respondent on January 18, 1935, and was employed continuously until the 1937 shut-down. In 1937 he was a utility or swing man. According to Foreman Bates, swing men have more skill and versatility than ordinary workers. Bates and Assistant Foreman Rabb testified that Martin's work was satisfactory. Martin joined the Union and, on May 10, 1937, became a trustee thereof. Foreman Bates commented adversely at the time on his acceptance of an office in the Union. Despite the fact that, because of their ability to handle consolidated operations, leaders and swing men are normally given preference when 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the plant opens, Martin was not recalled when production commenced on November 15, 1937. He was called back to work on December 10, but then refused to return because of the strike. We find that the re- spondent by failing to recall Martin on November 15 discriminated against him because of his office and activity in the Union, Frank B. Meyers was employed by the respondent continuously from March 4, 1935, until the September 1937 shut-down. He received six wage increases, the last one on June 22, 1937. During 1937 Meyers worked at discing side panels. Foreman Bragg and Assistant Foreman Donelon testified that Meyers was a "pretty good worker." Their only complaint was that Meyers "bothered" the men on the unloading dock by canvassing them for union membership, but he was not reprimanded or warned about that. Meyers was a shop steward and frequently argued with Assistant Foreman Donelon about the Union. Donelon testified that Meyers, in an attempt to get him to join the Union, pushed him against the wall and injured him. Meyers admitted the scuffle, but denied that it was over union dispute. The two men were friends at the time, and the incident appears to have been casual. It is uncertain who performed the work formerly done by Meyers ;and Harold Letner 101 when production started on November,15, 1937. According to Foreman Bragg, it was Clarence Graham, former skid man. According to Assistant Foreman Donelon it was Clarence Grimm. Neither Clarence Graham nor Clarence Grimm is listed on the respondent's pay roll.' There is a Clarence Grahn, former skid man, but he testified that when production started he continued on his former operation, the skids. It is undisputed, however, that sometime after the resumption of production Edward Valek took over Meyers' former operation. Valek had formerly performed a different operation and his seniority dates only from November 1936. The respondent claims that Meyers will not be reinstated because it believes him guilty of "unlawful and wrongful acts." As herein- above stated, this defense is without bearing upon the alleged dis- crimination. The respondent's personnel records indicate that Meyers' employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. We find that the respondent did not recall Meyers on November 15, 1937, in spite of his experience and ability, because Meyers held office and was active in the Union. Lawrence Miller was employed by the respondent on October 4, 1929, and worked continuously except for shut-downs until the September 1937 shut-down. Miller's employment record was termi- nated on December 23, 1937, pursuant to Medical Letter No. 3. I" See Appendix II-C 1. FORD MOTOR COMPANY 409 Before the shut-down in 1937 Miller was a schedule clerk handling the line-up of automobile bodies, together with Loyall Bugg and Orren K. Sims. They worked under Lester Burton, leader of the operation. Foreman Bates and Assistant Foreman Rabb testified that all four were very good workers. Miller was an active union member. He was elected trustee and, later, chairman of the Board of Trustees. He distributed the Union paper outside the plant at quitting time to workers coming through the factory gates. His affiliation was thus well known. Neither Bugg nor Sims joined the Union. Bugg, whose seniority dated from January 19, 1935, was recalled to work on November 10, 1937. Sims' seniority dated from January 29, 1935, and he was also recalled about the same time. Miller who had a great deal more seniority and was at least equally competent was not recalled. The respondent's answer asserts that it failed to reinstate Miller because of his inefficiency. In the light of the testimony of Foreman Bates and Assistant Foreman Rabb, it is obvious that this defense is without merit. We find that the respondent failed to recall Miller on November 10, 1937, because of his activity and office in the Union. Robert T. McGavock started to work for the respondent on Jan- uary 26, 1935, and worked continuously until the 1937 shut-down. During this time his hourly wage increased from 621/2 cents per hour to 95 cents. In 1937 he was a metal finisher. His superiors con- sidered him a good worker. McGavock joined the Union, and as shop steward was active in Union affairs. August G. Ballman was recalled on November 1, 1937, and was given McGavock's work. Before the shut-down Ballman was a welder. He signed a statement of satisfaction. Although Ballman has more plant seniority than McGavock, the respondent's action in shifting him from an entirely different operation to take the opera- tion formerly adequately performed by McGavock convinces us, and we find, that the respondent failed to recall McGavock on or about November 15, 1937, when production started, because he was an active officer of the Union. Francis J. McKeon worked for the respondent for 2 months in 1928. More recently he was hired on December 5, 1936, and worked as a night porter until the 1937 shut-down. He was not recalled after the shut-down. McKeon was an active Union member, serving as a shop steward. During the shut-down Foreman Fred Hake told McKeon and Albert 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Taylor,102 another porter, who was a member of the Union's execu- tive committee, that if they would get on the right side of the fence and drop out of the Union they would have a good chance of steady work. Both men continued their adherence to the Union. Although the record does not indicate that porters junior to McKeon were reinstated before the strike, we are of the opinion, from Hake's remarks to McKeon, and from the fact that the respond- ent excluded nearly all shop stewards from employment, that McKeon lost whatever chance he had for reinstatement because he was a union official. We find that the respondent discriminated against McKeon on November 15, 1937, when production resumed. Jess Olive was employed by the respondent continuously from January 28, 1935. He received four wage increases, the last one on June 18, 1937. The respondent customarily employed Olive through- out shut-downs as a carpenter and painter. At the time of the 1937 shut-down, he was employed as a tack spitter building cushions. Personnel Manager Gantner testified that Olive was a first-rate carpenter. Olive was a member of the union committee formed on April 5, 1937, to organize the respondent's plant. He was discharged April 6. The discharge became subject of much discussion and of a threatened strike. Pursuant to an agreement with the union committee, the respondent reinstated him. Olive is vice president of the Union and one of its most active workers. Olive was laid off on or about September 22, 1937, and has not since been recalled. The respondent claims that Olive will not be rein- stated because it believes him guilty of "unlawful and wrongful acts." As hereinabove discussed, this defense is without bearing upon the alleged discrimination. The respondent's personnel records indicate that Olive's employment was terminated on December 23, 1937, pur- suant to Medical Letter No. 3. We find that the respondent had a need for Olive's services and would have employed him continuously through the shut-down if it were not for his union activity. His excellent employment record, his experience as a carpenter, and the respondent's custom of employ- ing him throughout shut-downs indicate that his lay-off in September and the subsequent termination of his employment were due only to his extreme prominence in the Union. We find that by laying off Jess Olive on or about September 22, 1937, the respondent discriminated in regard to his hire and tenure of employment. Hartwell Parks started to work for the respondent on April 11, 1929, and worked continuously thereafter except during the seasonal 102 See Appendix I-B 2. FORD MOTOR COMPANY 411 shut-down in 1931, and during the depression shut-down of 1932-1934. Parks was laid off in the September 1937 shut-down. The respond- ent's personnel records indicate that his employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. In 1937 Parks installed windshields together with Thomas Bed- ford and Charles E. Schleuter. Schleuter had the most seniority, dating from 1916; Bedford the least, dating from 1935. Foreman Schesser testified that the three were equally good workers. All three were members of the Union. Parks alone, however, held office, serving as shop steward. Assistant Foreman Coff told Bedford that by signing a statement of satisfaction he could get back to work earlier than otherwise. Bedford signed and was recalled on Novem- ber 4, 1937. Schleuter was also recalled after signing a statement 103 We find that the respondent failed to recall Parks, in spite of the fact that his ability equalled that of Bedford, and that his seniority was much greater, because Parks was an officer of the Union. William E. Rankin started to work for the respondent on January 14^ 1935; his employment was interrupted by two lay-offs, prior to his lay-off in the September 1937 shut-down. The respondent's per- sonnel records indicate that Rankin's employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. In 1937 Rankin operated a turntable. The respondent's second and third amended answers alleged that Rankin was inefficient. Fore- man Bates testified that Rankin was an efficient worker but became careless in the last 3 or 4 months of his employment. Assistant Fore- man Rabb thought Rankin able but complained that he was fre- quently gone from his job because of union activities. Assistant Foreman Gantz claimed that Rankin's work was equal to that of the other men in the group of 12 in which Rankin worked. We find that the testimony of Rankin's superior refutes respondent's allegation of inefficiency. Rankin joined the Union early in its existence. He was a shop steward and a member of all the committees, and participated in presenting grievances and carrying on negotiations with the respond- ent. He was one of the two most prominent union members in the chassis department. Foreman Bates testified that John Broyles has taken over Rankin's work. Broyles, however, claimed that when production started, he returned to the work he was doing before the shut-down, that of a general repairman. Thus, we make no finding as to who has taken over the work formerly done by Rankin. The respondent's last amended answer alleged that the respondent will not rehire Rankin because it believes him guilty of "unlawful = Schleuter left the plant pursuant to the strike call on November 23, 1937. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and wrongful acts." As hereinabove stated, this defense has no bear- ing on the alleged discrimination. Notwithstanding the fact that it does not appear who took Rankin's place after the shut-down, we find, in view of the respond- ent's exclusion of most of the Union's officials, that the respondent by failing to recall Rankin on November 15, 1937, when production started, discriminated against him because of his union activities and his status as a union leader in the chassis department. Wm. H. Remmert started to work for the respondent November 19, 1934, and was employed continuously until laid off in the September 1937 shut-down. In 1936 and 1937 he was held responsible for the work of about 12 men on the body line-up under the immediate supervision of Assistant Foreman Reith. Foreman Bates testified that Remmert's work was satisfactory. Remmert joined the Union in June 1937, and became a shop stew- ard. Assistant Foreman Gantz came to see him in November and asked him to sign a statement of satisfaction. Although Remmert complied, the respondent did not recall him before the strike. On November 9, 1937, the respondent recalled Audrey Dunn, whose seniority dated from January 17, 1935, and gave him Remmert's operation. Dunn was also a member of the Union but not an active one. Before the shut-down Dunn's operation consisted of removing skids. Remmert was a well qualified employee, had a better position, more recognition, and more seniority than Dunn. The respondent recalled Remmert on November 29, 1937, during the strike, at which time he refused to return. We find that by failing to recall Remmert on November 9, 1937, the respondent discriminated against him because he was a shop steward of the Union and was correspondingly active in its affairs. No other conclusion explains Remmert's replacement by Dunn. Nelson L. Scheuerman started to work for the respondent on August 30, 1926. His actual employment totals over 8 years. He was laid off in the September 1937 shut-down and his employment record was terminated on December 23, 1937, pursuant to Medical Letter No. 3. During 1937 Scheuerman worked inside of the plant part of the time and also outside loading cars. The respondent's answer alleged that he was inefficient. Foreman McDowell testified, however, that "he was a good worker. The one trouble was his drinking habits. Mr. Rose told him about it and he bettered his condition." Scheuerman had been active in the Union. He was a shop steward, and had taken at least one grievance up with John Maeser, the general body foreman. Three of the four loaders whom the respondent recalled before the strike had considerably less seniority than Scheuerman, but the FORD MOTOR COMPANY 413 latter was not recalled. McDowell testified that he suggested that Scheuerman be brought back right after the plant reopened in No- vember and that he thought General Foreman Rose removed Scheuer- man's name from the list of those to be recalled. It thus appears that Scheuerman's drinking did not interfere with his work to any considerable extent inasmuch as his own foreman suggested his rein- statement. We are of the opinion that the foreman's request was vetoed because of Scheuerman's prominence in the Union. We find that the respondent discriminated against Scheuerman by failing to recall him on November 15, 1937, when production was officially resumed. Ollie W. Wade started to work for the respondent on December 5, 1928, and, except during shut-downs, he was employed continuously thereafter until laid off in the September 1937 shut-down. The re- spondent's personnel records indicate that Wade's employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. In 1937 Wade's operation consisted of installing coupe side panels and back-deck handles. Wade was a shop steward and actively participated in Union affairs. After the reopening of the ' plant Wade's operation was divided between Homer Johnson, who had formerly been a part-time helper of Wade, and Earl Wood, who installed trunk lids prior to the shut-down. Johnson's seniority dates from November 28, 1936, Wood's from January 30, 1935. Although both joined the Union, they later signed statements of satisfaction. The respondent asserts that Wade will not be reinstated because it believes him guilty of "unlawful and wrongful acts." For the reasons hereinabove stated, this defense is without bearing upon the alleged discrimination. We find that the respondent failed to reinstate Wade on November 4, 1937, when Earl Wood was recalled, in spite of Wade's satisfactory work, and his great seniority over Wood, because of Wade's office and activity in the Union. I John Walker Woolsey 1°4 started to work for the respondent on January 22,1935. He was laid off in 1936 but the respondent, within a week, began to look for him and called him back to work. Thereafter, he worked continuously until the shut-down in September 1937. The respondent's personnel records indicate that Woolsey's employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. At the time of the shut-down Woolsey was employed at washing the outside of car bodies. The respondent's answer alleged that Woolsey was inefficient. His immediate superior, Assistant Foreman Coff, testified that he had no 104 Also known as John Walker and John Woolsey. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trouble with Woolsey's work until the last few weeks. That was the time when union activity at the plant became especially controversial. Although Inspector Terrell first testified that Woolsey's work was poor, on cross-examination he admitted that Woolsey's work was on the par with the work of the average employee. Woolsey's operation has been consolidated with that of Ray A. Reese who operated the turntable. Reese, whose seniority dates from November 23, 1936, was recalled to work on November 11, 1937, and given the consolidated operations. Reese and Woolsey were both members of the Union. However, Reese signed a statement of satisfaction while Woolsey as shop steward of the Union continued to participate in its activities. We find that the respondent in spite of Woolsey's seniority failed to give him the consolidated operation because of his prominence in the Union, and that the respondent's discrimination against Woolsey commenced on November 11, 1937, when Reese was recalled. Louis Tl'oolsey was employed by the respondent on April 22, 1929, and except during shut-downs worked continuously thereafter until he was laid off in the September 1937 shut-down. The respondent's personnel records indicate that Woolsey's employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. In 1937 Woolsey was employed as a metal sander. Foreman Bragg and Assistant Foreman Goellner testified that Woolsey was a very poor worker. Their chief complaint was that he "bothered" the other men and that he wandered all over the plant trying to organize the workers. Assistant Foreman Goellner testified that when he heard about Woolsey's efforts to organize, he told the leader, Reiners, to give more work to Woolsey to prevent him from organizing. Woolsey was a charter member of the Union and a member of its grievance committee. On November 9, 1937, Allison Aulgur was recalled and reinstated as a sander and is now doing Woolsey's work. Aulgur has been em- ployed since 1936. Although he was a member of the Union he signed a statement of satisfaction. The respondent's answer alleged that respondent would never rehire Woolsey because it believed him guilty of "unlawful and wrongful acts." As hereinabove stated, this defense has no bearing upon the alleged discrimination. We find that Woolsey's long employment record refutes the claim of inefficiency. We find that the respondent discriminated against Woolsey on November 9, 1937, because of his union office, when his work was given to Aulgur who had much less seniority. Max Zubeck started to work for the respondent on February 22, 1928, and was employed continuously except during shut-downs until he was laid off on October 7, 1937. The respondent's personnel records FORD MOTOR COMPANY 415 indicate that Zubeck's employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. Zubeck was a stock checker. The respondent's second and third amended answers alleged that he was inefficient. However, Foreman Creachbaum testified that he was a fair worker, not any less efficient than the other employees. The testimony of Stock Superintendent Wunderlich, who admitted having occasionally held Zubeck up as an example for other employees to follow, also rebuts the allegation that Zubeck was inefficient. Zubeck was exceedingly active in the Union as a committeeman. Both Creachbaum and Wunderlich testified that they knew about Zubeck's union activities. On October 23, 1937, the respondent recalled Herbert Barth in place of Zubeck. Barth's seniority dates from November 23, 1936, and he had never done any checking before the shut-down. He re- frained from joining the Union, and signed a statement of satisfaction. In its fourth amendment to the answer the respondent claims that Zubeck will not be reinstated because it believes him guilty of "unlaw- ful and wrongful acts." As hereinabove stated, this defense has no bearing upon the alleged discrimination. We find that the respondent failed to recall Zubeck on October 23, 1937, in spite of his seniority and experience, because Zubeck was an officer and an active member of the Union. 2. Cases in which the Trial Examiner found no discrimination Thomas B. Barry was employed by the respondent continuously from February 1, 1935, until he was laid off in the September 1937 shut-down. The respondent's personnel records indicate that Barry's employment was terminated on December 23, 1937, pursuant to Medi- cal Letter No. 3. Barry received 5 wage increases, the last of which, on June 22, 1937, brought his hourly rate to 95 cents. He sprayed hoods and tops, and worked on different operations as a swing man. Foreman Stanze considered him a good worker, although less experi- enced than some of the others. Assistant Foreman Link testified that Barry was the only swing man among the sprayers who fitted in whenever an extra man was needed. Barry was a member of the committee which organized the Union, and continued to serve as committeeman and member of the executive board of the Union. Barry has not been recalled since the shut-down. Of the other four men who were on the same operation with Barry in September two were recalled to work before, the strike and two after the strike. Al- though all have considerably more plant seniority than Barry, Barry alone was shown to be able to perform a variety of operations. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent 's answer alleges that Barry was not reinstated be- cause of inefficiency . This allegation is refuted by the evidence. Stanze's and Link's testimony clearly establish Barry's efficiency. It would seem that the respondent would have recalled Barry because of his versatility, had he not been prominent in union activities. Ac- cordingly, and in the light of the respondent's consistent failure to recall union officials after the shut-down, we find that the respondent failed to recall Barry on or about November 15,1937, when production started, because he was an active union official. Arthur J. Boulicault was employed by the respondent continuously from November 244936, until he was laid off in the September 1937 shut-down. The respondent's personnel records indicate that Bouli- cault's employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. In 1937 Boulicault was a metal finisher until he contracted lead poisoning . After he returned to work, he assembled tool kits and later sprayed oil on the overhead chain. Boulicault was an active member and a shop steward of the Union. He has not been called back to work. Foreman McDowell testified that Marvin T. Thurman, who has a few days less seniority than Boulicault, has absorbed Boulicault's work. The respondent 's answer states that it has not recalled Boulicault because of his disability. However, Personnel Manager Miller testi- fied that Boulicault was not disabled at the time of the shut-down and that the Company has refused to pay him any more compensation. Foreman McDowell testified that Boulicault's work in assembling tool kits was satisfactory. It would appear, therefore, that Boulicault was capable of performing the tool kit assembling operation. . We find that the respondent failed to recall Boulicault on or about November 15, 1937, when production started, because he was an active officer of the Union. Russell Fairchild started to work for the respondent on March 30, 1929, and, except for the depression shut-down of 1932 to 1934, was employed continuously thereafter until the September 1937 shut-down. The respondent's personnel records indicate that Fairchild's employ- ment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. During 1937 Fairchild made up brake cables, and installed clevises and cords on the cables and stop-light switches. His superior testified that he was a good worker. Fairchild was a member of the Union from its inception. He served as a shop steward and took up grievances with the respondent. There is some conflict as to who took Fairchild's place when produc- tion resumed. Assistant Foreman Gramlich testified that Loraine A. FORD MOTOR COMPANY 417 Hertel , who prior to the shut-down worked on the unloading dock and had no experience in assembly work, and whose seniority dates only from November 1936, was given Fairchild's job. Foreman Bates, on the other hand, testified that Mitschele, Malmrose , and Gauzy, two of whom had less seniority than Fairchild, combined Fairchild's work with their own operation of dropping motors. These three men were called back on November 9. In either case it is clear that a person or persons who had less seni- ority than Fairchild took Fairchild's place. The respondent claims that Fairchild will not be reinstated because it believes him guilty of "unlawful and wrongful acts." As herein- above stated, this defense has no bearing upon the alleged discrimina- tion. We find that the respondent failed to recall Fairchild on November 15, 1937, when production resumed, because of his prominence in union activities. Perry A. Johnson started to work for the respondent on August 28, 1929. His actual employment totalled 67 months at the time of his lay-off in the September 1937 shut-down. The respondent's personnel records indicate that Johnson's employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. In 1937 Johnson inserted body bolts on the left side of cars. Paul Stockton performed the same operation on the right side. Stockton has about 41/2 months less seniority than Johnson. Johnson was an active union member, a shop steward. He dis- tributed copies of the union newspaper to the employees as they came out of the plant after work, and his union activity was thus well known. The respondent's second and third amended answers characterized Johnson as inefficient. His assistant foreman, Reight, testified, how- ever, that his work was fair. Johnson's long employment record also refutes the charge of inefficiency. The respondent's fourth amend- ment to its answer, filed on March 22, 1938, stated that the respondent will not rehire Johnson because it believes him guilty of "unlawful and wrongful acts." As hereinabove stated, this defense is without bearing upon the alleged discrimination. Stockton and John Gant, who dropped bodies before the shut- down, and whose seniority dates from 1936, are performing Johnson's work. Johnson has more seniority than either Stockton or Gant. We find that the respondent failed to recall Johnson when production started on November 15, 1937, because of his conspicuous activities in the Union. James Pradee worked for the respondent for 2 months in 1928. More recently he was hired on April 29, 1935, and worked until the 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1937 shut-down . The respondent 's personnel records indicate that Pradee's employment was terminated on December 23, 1937 , pursuant to Medical Letter No. 3. In 1937 Pradee sprayed special paint jobs. Assistant Foreman Morrison testified that he was as good a worker as there was on the floor until he became a union committeeman. Pradee was one of the first members of the Union and was active on various committees taking up grievances with the management. Assistant Foreman Morrison resented his absence from work while he was handling grievances with the management , but the union committee was never informed that the management objected to dealing with it during working hours. Orville Kincannon , whose seniority dates from November 1936; did the same job as Pradee on the night shift. Although Morrison testified that Pradee was more skilled than Kincannon , Kincannon was called back on November 16, 1937, and Pradee has not been re- called. Since November 16, Pradee 's work has been performed by Assistant Foreman Morrison , with the help of Kincannon. The respondent claims that Pradee will not be reinstated because it believes him guilty of "unlawful and wrongful acts." As hereinabove stated, this defense has no bearing upon the alleged discrimination. We find that the respondent did not recall Pradee on November 16, 1937 , in spite of his seniority and ability , because of his out- standing union activities. Charles S. Schifferly was employed by the respondent regularly from 1928 until the September 1937 shut -down. The respondent's personnel records indicate that Schifferly 's employment was termi- nated on December 23, 1937 , pursuant to Medical Letter No. 3. In 1937 Schifferly worked with William P . Bright,105 Thomas L. Schmidt, 106 Woodrow T. Brandt '107 Joseph A. Ebert , and William L. Wooldridge at installing inside trim. SchifFerly was one of the first members of the Union; he became a shop steward in May 1937 . Wooldridge was also member of the Union , but signed a statement of satisfaction. Among the above-mentioned six men Ebert had the most seniority, and was the first to be reinstated after the shut-down . Schifferly was second in seniority , and Wooldridge last . However, Wooldridge was recalled on November 9 , 1937 , and Schifferly was not called back. Foreman Schesser and Assistant Foreman Smiley both considered Schifferly a less efficient worker than at least four of the other five 106 See Appendix II-C 2. 10 See Appendix H-C 2. 30'6 See Appendix II-C 1. FORD MOTOR COMPANY 419 men on the operation. But Schifferly had received four wage in- creases since 1935, the last one in the summer of 1937, and had worked continuously, even during shut-downs. Wooldridge, himself, testified that while he thought that he was "just as good as Schifferly," Schif- ferly was a more experienced worker. It was Schifferly who taught Wooldridge the operation. Upon this record we believe that the foreman's and the assisant foreman's testimony, which the Trial Examiner accepted, was due to their resentment of Schifferly's union activities, rather than to incompetence. The respondent claims that it will never reinstate Schifferly be- cause it believes him guilty of "unlawful and wrongful acts." As hereinabove stated, this defense has no bearing upon the alleged discrimination. We find that the respondent failed to reinstate Schifferly on No- vember 9, 1937, when it called Wooldridge, because Schifferly was a union official. Walter A Semon started to work for the respondent on March 14, 1935. He was laid off on or about September 24, 1937, during the shut-down. The respondent's personnel records indicate that Semon's employment was terminated. on December 23, 1937, pursuant to Medical Letter No. 3. Semon was employed as a porter and worked at the east end of the fourth floor. The west end was handled by George Proost who has been employed by respondent since 1929 and who since the shut- down has been cleaning the entire floor. Assistant Foreman Hussey testified that Semon was a better workmen than Proost. Semon was a shop steward in the Union. Proost also joined the Union but stopped paying dues in June. According to Semon's testi- mony, late in October, Assistant Foreman Hussey told him that if he would take off his union button and stay away from the building for a week, Hussey would send for him. When asked about this at the hearing, Hussey testified, "It was just a little warning to Walter, but nothing against his union now," and refused to state further what he told Semon. We credit Semon's version of the incident. Semon remained loyal to the Union. He was not recalled. The respondent claims that Semon will not be reinstated be- cause it believes him guilty of "unlawful and wrongful acts." As hereinabove stated, this defense is without bearing upon the alleged discrimination. Although Proost, who took over Semon's work, has more seniority, he was described by Hussey as less efficient than Semon. Hussey's "warning" to Semon during the shut-down,10s and the respondent's 108 It will be recalled that Hussey was very active in the statement of satisfaction move- ment during the shut-down See Section III-B 2, supra. '420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practice of not recalling union stewards, convinces us that Semon lost whatever chance he had of reemployment by virtue of his posi- tion as an official of the Union. We accordingly find that the re- spondent failed to recall Semon on or about November 15, 1937, when production started, because he was an active officer of the Union. Marvin Skaggs worked for the respondent from January 19, 1935, until the September 1937 shut-down. The respondent's personnel records indicate that Skaggs' employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. In, 1937 Skaggs installed the tongue rod, motor mountings, exhaust pipe, etc., on the right side of cars while Barth Stevens performed the same operations on the left side. Skaggs was active in the Union in his capacity as shop steward, and his activities were known to his foreman and assistant foreman. Foreman Bates testified that Norman Kirby performed Skaggs' work after the shut-down and before the strike. Kirby's testimony varies from that of Bates, but he could not recall definitely what his work was in that period. Kirby's seniority dates from November 1936. Until the'summer of 1937 he was employed as a porter. Thus, the respondent apparently replaced the experienced and competent Skaggs with a man who has been a production worker for only a few months. The respondent claims in its third amended answer that Skaggs will not be reinstated because it believes him guilty of "unlawful and wrongful acts." As hereinabove stated, this defense has no bearing upon the, alleged discrimination. We find that the respondent's failure to recall Skaggs on Novem- ber 15, 1937, when production started, was due to its knowledge and disapproval of Skaggs' union activities and office. Roy Short started to work for the respondent on January 17, 1935, and was employed continuously until the September 1937 shut-down. ,The respondent's personnel records indicate that Short's employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. In 1937 Short adjusted brake cables. After June 1937 numerous complaints were made about his work. There is considerable con- troversy and conflicting evidence as to whether his difficulty was due to his own efforts or was the fault of the machines with which he was working. Because of this trouble he was taken off the operation and was used as an extra man, mostly at helping Skaggs to tie in motors. Foreman Bates testified that Short could do a number of operations and was a good worker up to the last few months. Short was an active union member and as the chief shop steward on the second floor he handled several grievances. I FORD MOTOR COMPANY 421 The respondent claims that Short will not be reinstated because it believes him guilty of "unlawful and wrongful acts." As herein- above stated, this defense has no bearing upon the alleged discrimi- nation. While it is not shown that Short's services were needed since the shut-down, his ability to perform several operations make it likely that he would have been recalled, had it not been for his union activi- ties. We find that the respondent failed to recall Short on or about November 15, 1937, when production started, because he was an active officer of the Union. Albert C. Taylor was employed by the respondent as a porter in December 1936. He worked until the 1937'shut-down and was not recalled thereafter. Taylor was a member of the Union's executive committee. During the shut-down Foreman Fred Hake told Taylor and Francis V. Mc- Keon,109 another porter, who was a union shop steward, that if they would get on the right side of the fence and drop out of the Union they would have a good chance of steady work. Although the record does not indicate that porters junior to Taylor were reinstated before the strike, we are of the opinion, from Hake's remarks to Taylor, and from the fact that the respondent excluded nearly all union officials from employment, that Taylor lost his chance of reinstatement because he was a union official. We 'find that the respondent discriminated against Taylor on November 15, 1937, when production resumed. Adolph Wodicka was employed by the respondent for 6 months in 1932, and was reemployed in October 1934. Thereafter he worked con- tinuously until he was laid off on October 7, 1937. The respondent's personnel records indicate that Wodicka's employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. In 1937 Wodicka was a pipe fitter and a checker of plumbing fixtures, oil burners, etc. Foreman Whiteknight testified that Wodicka was a "very fair" worker. His hourly rate of $1.00 also indicates that he was a highly skilled employee. Wodicka was a member of the Union and a shop steward therein. Although in previous years Wodicka worked during shut-downs, he was not called back after October 1937. His work has been performed by the chief engineer. Although there is no showing that Wodicka was replaced by a pro- duction employee with less seniority, he was a very capable employee. We believe that he lost his chance of being recalled because he was a union shop steward. We accordingly find that the respondent failed to 109 See Appendix I-B 1. 283034-41-vol. 23- -28 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recall Wodicka on or about November 15, 1937, when production started, because he was an active officer of the Union. The cases of 10 union officials remain for consideration. The work performed by these men before the shut-down was either transferred to or absorbed by employees having greater seniority, or was eliminated entirely in the production of the new model. Although the Board cannot determine with certainty whether or not these men were needed in the plant when production started, the respondent, which dis- criminated against them by failing to consider them for reinstatement and thus deprived them of their normal chances of employment, has failed to show affirmatively that they were not needed. We shall briefly review the cases : Hiram H. Blankenship was employed by the respondent for 5 months in 1935, and thereafter from November 27, 1936, to the time of the shut-down in September 1937. The respondent's personnel records indicate that Blankenship's employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. Assistant Foremen Goellner and Luly both testified that Blanken- ship was a fair metal finisher. His wages were increased from 621/2 cents to 90 cents an hour within a space of 2 years. Blankenship joined the Union and was made shop steward therein. He has taken up grievances with Superintendent Mabie. Since the shut-down Blankenship's work has been performed by Paul Hite, who has 6 years more seniority and who was an assistant foreman prior to the shut-down. The respondent's answer alleges that Blankenship's employment was terminated because of inefficiency. This answer is obviously un- supported. The testimony of Blankenship's superiors and his record of wage increases leave no doubt but that Blankenship was at least an average workman. Bee Butler started to work for the respondent on January 29, 1929, was laid off in 1930 and reemployed in 1934, and worked continuously thereafter as a tack spitter in the trim department until the shut- down in September 1937. The respondent's personnel records indi- cate that Butler's employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. Butler received four wage in- creases since 1935, the last one on June 18, 1937. Foreman Schesser testified that Butler was a fair worker, but "hard to handle." His service record and frequent raises indicate that he was at least a satisfactory employee. Butler was a shop steward of the Union and a very active member thereof. J. A. Brown, Thomas Luster, and Charles Schleuter, the men who apparently absorbed the operation which Butler performed prior to the shut-down, all have more seniority in the plant than 0 FORD MOTOR COMPANY 423 Butler. Although the men who are now performing Butler's work have more seniority than he does, Butler's long record of employ- ment indicates that he may be needed on other work. The respondent claims that it will never reinstate Butler because it believes him guilty of "unlawful and wrongful acts." As herein- above stated, this defense has no bearing on the alleged discrimi- nation. William A. Lorenz was employed by the respondent continuously from February 1, 1935, until the shut-down in September 1937. He received four wage increases, the last one on June 18, 1937. In 1937 Lorenz assembled cushions with Allan O. Kern,110 and Charles Miller.1;11 That work has been performed by John Westenberger alone since production started in November. Lorenz was a member of the Local of the United Automobile Workers of America at Fisher Body Corporation. He transferred his membership to the Ford Local as soon as it was organized. He was a member of the first executive committee, participated in the conference concerning the Jess Olive incident, and continued to en- gage in union activities thereafter. The respondent alleges that Lorenz was not reinstated because of inefficiency. His superiors testified that like Kern he did a lot of laughing and talking but there is no evidence that this interfered with his work. His uninterrupted record of employment and his wage increases indicate that he was a good worker. Furthermore, the respondent's personnel records indicate that Lorenz's employ- ment was terminated on December 23, 1937, pursuant to Medical Let- ter No. 3, and not for inefficiency, even though inefficiency is gen- erally indicated on personnel records when it is the cause of discharge. Although Lorenz's operation has been transferred to Westenberger and we have found Kern was discriminated against by the reinstate- ment of Westenberger, the evidence indicates that Lorenz was a good worker and might normally have been recalled for some other work. Herman C. Miller was employed by the respondent regularly from May 1928 until he was laid off in the September 1937 shut-down. The respondent terminated his employment on its books on Decem- ber 23, 1937, pursuant to Medical Letter No. 3. Miller joined the Union and served as shop steward. In 1937 Miller was a commercial body checker. He was considered a pretty good worker by his foreman. When production started after the shut-down, Miller's operation was consolidated with the passenger body checking operation and was given to William F. Leu who held the latter operation prior to the shut-down. Leu had 6 years more seniority than Miller. 110 See Appendix I-B 1. iu See Appendix II-C 1. 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Warner Olsen worked for the respondent continuously from Janu- nary 28, 1935, until he was laid off in the September 1937 shut-down. The respondent's personnel records indicate that Olsen's employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. In 1937 Olsen was a gas washer and an admittedly good worker. He joined the Union, became a shop steward therein, and was active in union affairs. Olsen has not been recalled since the shut-down. Of the men working with him three or four have been called back. Their plant seniority is considerably greater than that of Olsen. Anthony Parmantje was employed by the respondent from January 31, 1935, until the September 1937 shut-down. The respondent's per- sonnel records indicate that Parmantje's employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. Parmantje joined the Union and became shop steward therein. He was one of six welders working on fixtures. His superiors testified that he was a fair worker. Of the five men who worked with Parmantje, the three with the most seniority were recalled prior to the strike. Parmantje has about 5 months' less seniority than Harold Goy, who had the least seniority among those recalled. Herbert C. Plwmmmer was employed at the plant from the begin- ning of 1935 until the shut-down in September 1937. Prior to 1935 he had worked in the respondent's Kansas City plant. He and Louis Trogg were repairmen on the first floor. Plummer was a member of the Union and a shop steward therein. His foreman, McDowell, commented adversely to Plummer on his wearing union buttons. When production started after the shut-down, Trogg was called back and he is handling both his and Plummer's operation. Trogg has 12 years more seniority than Plummer. Plummer was not called back. His employment was terminated on December 23, 1937, pur- suant to Medical Letter No. 3. Calvin G. Ross started to work for the respondent on October 14, 1929, and except for one seasonal shut-down and the depression shut-down was employed continuously thereafter. He was laid off when the plant was shut down in September 1937, and has not been asked to return to work. The respondent's personnel records indi- cate that Ross' employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. In 1937 Ross, together with Berry Livingston, installed wind- shield headers, an operation which was eliminated on the 1938 model. Ross was a member of the Union and in June 1937 became a shop steward. He was prominently active in union affairs. FORD MOTOR COMPANY 425 The respondent claims it will not reinstate Ross because it believes him guilty of "unlawful and wrongful acts ." As hereinabove stated, this defense has no bearing upon the alleged discrimination. Charles Simon was employed by the respondent from January 25, 1935, until the September 1937 shut-down . He was a door hanger and fitter on the cab line. Assistant Foreman Walters testified that Simon was a fairly good worker. Simon joined the Union and was active in it as shop steward. After the shut-down Simon 's work was consolidated with Floyd Mann's previous operation of building panel bodies . The consolidated operation was assigned to Mann , who has a few months' more seniority than Simon . Mann is a member of the Union but signed a statement of satisfaction during the shut-down. On December 10 the respondent recalled Simon . Simon did not respond because of the strike. Clifton Stevens was employed by the respondent continuously from January 15, 1935, until the September 1937 shut-down . He was a gas washer . Foreman Stanze and Assistant Foreman Faulkenberry considered him a good worker. Stevens was a member of the Union and a shop steward therein. His union office was known to his assistant foreman, Clyde Faulken- berry. Assistant Foreman Faulkenberry testified that Stevens was the only man who was not recalled from his group when production started after the shut-down. Upon the resumption of operations Stevens was replaced by Reuben Waldrop ; later L . A. Miller took over the operation . Each has more seniority than Stevens. For the reasons stated 112 we find that by failing to reinstate Blank- enship, Butler , Lorenz , Miller, Olsen , Parmantje , Plummer, Ross, Simon, and Stevens , when production resumed on November 15, 1937, the respondent discriminated against them because they were union officials. APPENDIX I-C The Board finds that the respondent discriminated in regard to the hire and tenure of employment of the 22 persons whose cases are discussed in this Appendix. 1. Cases in which the Board sustains the Trial Examiner's finding of discrimination Ralph A. Ash was employed by the respondent in December 1928, and worked for about 10 months. He was reemployed on Febru- ary 6, 1935, and worked continuously thereafter until the 1937 shut- us See Section III D 3b, supra. 426 DECISIONS OF NATIONAL . LABOR RELATIONS BOARD down . In 1937 he worked on the unloading dock. Ash was laid off in the shut -down. The respondent 's personnel records, indicate that his employment was terminated on December 23, 1937 , pursuant to Medical Letter No. 3. Ash was a member of the Union and was outspoken in his approval of it. Foreman Creachbaum testified that he told Foreman Spell- meyer not to call Ash back because he had heard Ash was working elsewhere . Creachbaum asked employee Gus Krummel , one of the originators and chief proponent of the statements -of-satisfaction movement, to find out whether Ash was working. Although Ash later spoke to Creachbaum and told him that he was not working and that he had not seen Krummel, he was not called back. Of 46 men listed by the respondent as unloaders , 13, including Adam Eder and Richard V. Gannon, whose cases are discussed below, had greater seniority than, had Ash. By November 1, 1937, 16 un- loaders , excluding Ash, Eder, and Gannon, had been recalled. Thus at least 5 unloaders who were junior to Ash had been recalled whereas Ash was never reinstated. We find that the respondent did not call back Ash on or before November 1, 1937, because of his loyalty to the Union. 0. TV. Bryant was employed by the respondent on March 19, 1928, and worked continuously thereafter except during a seasonal shut- down in 1931, and during the depression shut-down of 1932-1934. During the course of his employment his rate of pay was increased from 621/2 cents per hour to $1 per hour. Bryant was an assistant foreman from 1935 to February 15, 1937, when he was demoted for, his inability to get sufficient work out of his men. Thereafter, until his lay-off at the time of the shut -down, he worked as a tack spitter and as an "extra" or "swing" man. The respondent 's personnel rec- ords indicate that Bryant's employment was terminated on Decem- ber 23, 1937 , pursuant to Medical Letter No. 3. Bryant was a member of the Union. On November 1, 1937, he went to the home of Assistant Foreman Tice Gurley and tried to persuade him to discontinue circulating statements of satisfaction, thereby expressing his loyalty to the Union. On November 9, 1937, Joseph R. Jarboe, whose seniority com- menced December 9, 1933, and who, prior to the shut -down, had worked on windshields , was recalled to work as a tack spitter. Jar- boe has approximately 4 years' less active service with the respondent than Bryant. Jarboe claimed , at the hearing , that he joined the Union unwillingly . He signed a statement of satisfaction. While it is not clear that Jarboe has taken over Bryant's work , his employ- ment on November 9 as'a tack spitter shows that the respondent had work available for which Bryant was qualified , since Bryant was FORD MOTOR COMPANY 427 able to perform many, if not all of the operations in his department, had a long service record, and was an able worker. In the light of Bryant's ability to perform many operations in his department, an ability rendering him peculiarly fitted for reinstate- ment after the shut-down when many operations were combined, his long service record and the preference given to Jarboe, who had less seniority and who had not been a tack spitter at the time of the shut- down, we conclude that the respondent failed to reinstate Bryant on November 9, 1937, because of his union activities. Charles Enos started to work for the respondent April 30, 1930. The respondent's personnel records list him as an assistant foreman. He was laid off in the September 1937 shut-down and unlike other assistant foremen was never recalled. The respondent's personnel records indicate that his employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. Enos' work before the shut- down was spraying wheels and Assistant Foreman Grodie held him responsible for his own work and that of Carl Runyon, whose seniority dates from December 1936. Both Enos and Runyon joined the Union. However while Runyon signed a statement of satisfaction, Enos voiced his approval of the Union when, during the shut-down, Assistant Foreman Grodie asked his opinion of it. Documentary evidence offered by the respondent indicates that Runyon was recalled on November 9, 1937, as a wheel sprayer. As- sistant Foreman Morrison testified that Runyon had been spraying wheels since production started. We find that the respondent replaced Enos on November 9, 1937, with Runyon, who lacked Enos' qualifications and seniority, because of Enos' continued loyalty to the Union. Adam Eder started to work for the respondent on September 11, 1929, and worked continuously thereafter, except for general lay-offs and shut-downs, until the shut-down in September 1937. The re- spondent has not recalled Eder since the shut-down and its personnel records indicate that Eder's employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. Prior to the shut-down Eder was an unloader and worked on the night shift. Foreman Spellmeyer testified that he was "a fairly good worker." Eder was a member of the Union and had for some time been shop steward. Of the 46 men listed as unloaders on Respondent Exhibit 104, only 7 had more seniority than Eder. By November 1, 1937, 16 unloaders were recalled; and since Gannon 113 was not recalled several of those reinstated must have had less seniority than Eder. I's See discussion below. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the respondent discriminated against Eder on and after November 1, 1937, because of his office and activity in the Union. Richard J. Gannon was employed by the respondent continuously from December 20, 1928, until the 1937 shut-down except for a seasonal shut-down in 1931 and the depression shut-down of 1932-34. He was laid off on September 15, 1937. The respondent's personnel records indicate that Gannon's employment was terminated as of December 23, 1937, pursuant to Medical Letter No. 3. Gannon was a stock piler. Foreman Spellmeyer testified that Gan- non was a fairly good worker, and was a leader under him 114 Gannon was a member of the Union and he was active as shop steward for a few weeks in June. Since Gannon was a leader and since he had more seniority than 40 of the 46 men listed in the respondent's employment records as unloaders, he should have been among the unloaders first recalled. But even though 16 unloaders, of which at least 10 must have been junior to him, had been called back to work by November 1, Gannon was not called. The respondent's explanation for its failure to rein- state Gannon was merely that he has not been needed. We find that respondent did not call back Gannon on or before November 1, 1937, because of his union activities. Robert M. Hogan and Frank G. Lohr both started to work for the respondent on January 28, 1935, and were employed until the shut- down in September 1937 on the installation of window regulators. According to Assistant Foreman Coff, Hogan was a good worker, Lohr just fair. However, they both received two wage increases in the month of June 1937. The respondent's personnel records indicate that the employment of Hogan and Lohr was terminated on December 23, 1937, pursuant to Medical Letter No. 3. Hogan and Lohr were among the first to join the Union in April, 1937 and they tried to get others to join. Hogan was visited by em- ployee Morris and asked to sign the statement of satisfaction; but he refused. When production started after the shut-down, Marvin Henry Robinson, Graves Neal, and Duncan Gant were put on the operation of installing window regulators. Of the three men only Robinson spends most of 'his time on this work. Robinson and Neal had been employed by the respondent only since December 1936 and they did not install window regulators prior to the shut-down. They both signed statements of satisfaction. We find that the respondent failed to recall Hogan and Lohr when production started on or about November 15, 1937, although they were capable and experienced workers, but instead filled their places with 114 Although Spellmeyer described Gannon as a leader the respondent in its exception calls him an "assistant leader." FORD MOTOR COMPANY ' 429 relatively new men because of Hogan's and Lohr's participation in union activities. Frank Husser started to work for the respondent on May 28, 1920, and was employed continuously thereafter except during seasonal shut-downs. He was laid off on September 16, 1937, and was not recalled. The respondent's personnel records indicate that Husser's employment was terminated on December 23, 1937, pursuant to Medi- cal Letter No. 3. Before his lay-off Husser was a porter assigned to the factory office. Husser was a member of the Union. A few weeks before Husser's lay-off, Kleekamp, chief clerk in the office, cautioned him against taking back information to the Union from that office. Kleekamp testified that he cautioned Husser only against carrying out informa- tion relative to a real estate transaction of the respondent. When Husser was laid off he asked Assistant Foreman Hussey the reason. Hussey told him that there might be labor trouble and the whole plant might be shut down. Hussey denied this, but we conclude from the manner of his denial and his other testimony that Husser's testimony is more credible. Husser's job was taken over by Louis Gangel, a union member hav- ing 8 years' less seniority. Gangel was not shown to have been active in the Union. He paid dues for only 1 month. He worked straight through the shut-down. From Chief Clerk Kleekamp's warning to Husser it appears that the former knew of Husser's membership in the Union. Moreover, Assist- ant Foreman Hussey's reply to Husser's inquiry regarding the cause of the lay-off is unintelligible unless it is interpreted as a statement that adherents of the Union were unwelcome in the plant. In view of Hussey's extensive activity in the statements-of-satisfaction move- ment, we are of the opinion that his reply to Husser requires that interpretation. In any event the job performed by Husser continued. We find that by laying off Husser and assigning his work to a man with 8 years' less seniority the respondent discriminated against Husser for his union membership. Ben Juley started to work for the respondent on January 4, 1935. In 1937 he installed radiators and gas tanks with Adel Casey 115 Juley was laid off at the time of the September 1937 shut-down. The respondent's personnel records indicate that his employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. The respondent alleged that it will not rehire Juley because it believes him guilty of "unlawful and wrongful acts." For the reasons here- inabove stated this allegation is no defense to the charge of discrimi- nation. 115 See Appendix I, B, 1. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Assistant Foreman Rabb testified that Juley had once been a very good man but that due to his association with Casey (a union shop steward) his work declined. During the shut-down Assistant Foreman Eidson asked Juley whether he would be willing to go through a picket line. Juley re- plied that he would not. He was never recalled. On October 22, 1937, Juley's work was taken over by John E. Shaw. Shaw was himself a member of the Union and had about the same seniority as Juley. Before the shut-down, however, he worked on a different operation. We believe that by refusing, upon interrogation by an assistant foreman, to agree to go to work through a picket line, Juley forfeited whatever chance he had of reinstatement. No other circumstance explains the transfer of Shaw to Juley's job. We find that on Octo- ber 22, 1937, by failing to recall Juley and assigning his work to Shaw the respondent discriminated against Juley for his loyalty to the Union. William Keim started working for the respondent on January 24, 1916, and worked continuously thereafter except during the war and during shut-downs. At the time of his lay-off in the 1937 shut-down he was working on cab cushions and backs in the trim department. There were no complaints about his work. Keim was a member of the Union. In the begining of November, Assistant Foreman Luly went to Keim's home and asked him to sign a statement of satisfaction. Keim said he would like to go to work but he did not want to sign the statement. Luly left stating that if Keim decided to sign he should call Luly and he could come to work a couple of days later. Keim did not get in touch with Luly and was not called back to work. The only denial Luly made of Keim's testi- mony was that "I didn't tell him he would have to sign a loyalty pledge." We find that Luly',s action constituted an invitation to Keim to sign. Although the respondent's answer does not specifically deny the allegation of discrimination in the complaint regarding Keim, we believe the failure to deny it to be inadvertent and shall consider the allegation denied. Keim's operation was taken over by John Kyle, who was recalled on November 4, 1937. Prior to the shut-down Kyle assembled front- seat cushions. Kyle started to work for respondent in June, 2, 1926, resigned a year later, and was reemployed in 1935. We find that Keim was not recalled on November 4, 1937, in spite of his very great seniority and his satisfactory work because he had expressed loyalty to the Union. Irl Keller started to work for the respondent on June 1, 1921, and was employed continuously thereafter except during regular shut- -FORD MOTOR COMPANY 431 downs.' -In 1937 he assembled door panels with August Krek, Glenn Forth, and John Westenberger. All four of them were members of the Union. Krek's and Forth's seniority dates from the first of 1935, and Westenberger's from November 28, 1936. Keller testified that during the 1937 shut-down, Assistant Foreman Smiley asked him to sign a loyalty pledge, saying that Keller would not get back to work unless he signed. Smiley admitted visiting Kel- ler and telling him about a "sort of a survey made by some of the men in the plant to find out whether they were satisfied or not satisfied with their jobs and conditions in the Ford Motor Company." How- ever, Smiley denied that he asked Keller to sign the statement and claimed that he merely showed it to him. We find that Smiley's action constituted an invitation to sign. Keller did not sign and was not called back to work until after the commencement of the strike. Glenn Forth signed a similar statement and was called back on November 9. Westenberger likewise signed a statement and was called back before the strike. Krek was also recalled before the strike. There is no evidence as to whether or not he signed a statement. Keller was recalled in December, during the strike, but refused to return to work. The respondent alleges that it terminated Keller's employment because of his failure to return to work within 5 days after he was requested to do so. Of the four men on Keller's operation he had the greatest seniority and is the only one shown to have refused to sign a statement of satis- faction. All three others, two of whom signed such a statement, were recalled. We sustain the finding of the Trial Examiner that the re- spondent discriminated against Keller by failing to reinstate him. We find that such discrimination occurred upon the recall of Forth on November 9, 1937. John Knierim (Kinern) started to work for the respondent on February 26, 1917. He was laid off in the September 1937 shut-down and has not been recalled. His operation consisted of blowing out the automobile body with an air hose, washing it in alcohol, and glazing it in the cab room. The respondent's personnel records indicate that Knierim's employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. Knierim was a member of the Union. In October, during the shut- down, Assistant Foreman Glasner visited him at his home. The circumstances of this visit are in dispute. Glasner testified that he went there because Foreman Stanze told him that he wanted to know whether or not Knierim was willing to come back to work, that Knierim's reply to his inquiry was that he would decide whether he was going to stay with the Union or go back to work for the respondent, and that Glasner then told Knierim that if he was willing to return 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he should go to see Stanze. Glasner denied that anything he said implied that Knierim must make the choice above indicated. Knierim testified that Glasner made it clear to him that he could not go back to work and remain loyal to the Union. We find Knierim's version more credible for two reasons. First, it was the respondent's general practice to call the men back by telegram without first ascertaining their willingness to return, and no reason appears for a different ap- proach to Knierim. Second, since the strike had not yet been called Knierim's statement to Glasner, which is not disputed, was meaning- less, unless Glasner in fact expressed the respondent's antagonism to the Union. The respondent's answer alleges that Knierim was inefficient. Fore- man Stanze testified that Knierim was not called back because he drank. Knierim's long employment record and the fact that the assistant foreman, under instructions from the foreman, sought him out to have him return to work, rebuts the allegation of inefficiency. The evidence shows that the respondent did want Knierim back if he would repudiate the Union. The respondent's fourth amended answer asserts that Knierim will not be reinstated because the respondent believes him guilty of "unlaw- ful and wrongful acts." For reasons hereinabove, stated, this asser- tion constitutes no defense. On November 11, 1937, Allan A. Hall, whose operation before the shut-down was to spray paint, and whose seniority dates from 1928, was recalled and given an operation consisting of the tasks formerly performed by him and those performed by Knierim. According to Assistant Foreman Glasner, Knierim and Hall were alike in effi- ciency. Hall's service record with the respondent is approximately 9 years shorter than Knierim's. We find that respondent discriminated against Knierim on No- vember 11, 1937, because of his continued loyalty to the Union. Raymond E. Laramore started to work for the respondent in 1928 and was regularly employed until the 1937 shut-down. In 1937 he worked with Otto B. Vondera 116 installing insulation strips and tacking in the retainer. Foreman Bragg testified that he never had any complaint about Laramore's work. The respondent's personnel records indicate that Laramore's employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. Laramore was a member of the Union. When production started after the 1937 shut-down, Thomas Donelon, assistant foreman, told him that as long as he continued to wear his union button he would not get back in the respondent's plant. 116 See Appendix I, A. FORD MOTOR COMPANY 433 On November 5, 1937, Cook Settle, whose employment with the respondent totaled less than 16 months as compared to Laramore's 76 months, and who had previously worked on underpans, was re- called and given Laramore's work. Settle was also a member of the Union, but he had signed a statement of satisfaction. The respondent claims that it will never reinstate Laramore be- cause it believes him guilty of "unlawful and wrongful acts." As hereinabove stated, this contention is without bearing on the alleged discrimination. We find that the respondent recalled Settle and failed to recall Laramore on November 5, 1937, in spite of Laramore's long record of employment and experience, because of Laramore's continued loyalty to the Union. Lambert E. Herz commenced to work for the respondent January 3, 1929, and worked continuously except during the depression shut- down of 1932-1934. He was laid off at the time of the September 1937 shut-down. In 1937 he installed inside door handles. When in 1937 production got heavy, Charles Fiscko, a porter, was assigned to help Merz, and Merz taught him the operation. Foreman Schesser testified that up to the last month Merz was as good a worker as any- one, but during the last month he became a little careless. Assistant Foreman Cook testified that Fiscko and Merz were even in his esti- mation and that both of them were pretty good workers. The re- spondent's personnel records indicate that Merz's employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. During the shut-down Cook visited Merz in his home and asked him to sign a paper. The paper presented to Merz was blank. In- asmuch, however, as Cook admitted that he circulated statements of satisfaction during the shut-down, we infer that he solicited Merz's signature for use in connection with such a statement. During the ensuing discussion Merz expressed his loyalty to the Union. He refused to sign the paper. Fiscko signed a statement of satisfaction and was recalled to work on November 10, to paint the conveyor line. When production started on or about November 15, 1937, he was put back on the door-handle operation. We affirm the finding of the Trial Examiner in regard to Merz. We find that the assignment of Merz's work to Fiscko on or about November 15, in spite of Merz's acknowledged ' ability, greater sen- iority in the plant, and much longer experience on the job, was due to Merz's expression of loyalty to the Union. Anthony L. Orth worked for the respondent from January 8, 1935, until the September 1937 shut-down. In 1937 he installed head- liners in a team with Wilbur Snowden, Dave Scobbie, and Ed Shaw. All four men were members of the Union. On November 4, 1937, 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respondent recalled Scobbie and Shaw. Orth and Snowden have not been reinstated. Scobbie was the senior of the four men, but Orth's service exceeded Shaw's by almost 2 years. Assistant Foreman Smiley testified that Orth was on a par with the best man in the team but that Snowden was less efficient than the others. Snowden's case is hereinafter dismissed 117 Assistant Foreman Gurley went to Orth's house on October 30, 1937, and asked him to sign a statement of satisfaction. Smiley visited Orth for the same purpose on November 2, 1937, and told him that Ford was not going to deal with the U. A. W. Orth re- fused to sign a statement. Shaw and Scobbie, however, both signed. The respondent contends that Orth was recalled but failed to re- port because he feared the Union. Foreman Schesser testified that he understood that that was the case. Orth, however, denied that he had been called, and Respondent's Exhibit 62, listing the men to whom the respondent allegedly offered employment, does not contain Orth's name. We find that Orth was not recalled. Since Orth's ability admittedly equaled that of Shaw over whom he had almost 2 years seniority and who signed a statement of satis- f action, we find that the respondent's failure to recall Orth on November 4, 1937, was due to Orth's expression of loyalty to the U. A. W. Herman C. Potter started to work with the respondent on January 28, 1929. His employment was interrupted several times and his actual service totals 51 months. He worked with Richard Freund washing and spot-welding pans. Foreman Bragg testified that Pot- ter was a fair worker. He was laid off at the time of the September 1937 shut-down. The respondent's, personnel records indicate that Potter's employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. Freund and Potter were both members of the Union. During the shut-down Freund was very active in soliciting workers to sign state- ments of satisfaction. He testified that he probably asked as many as 10 to sign; that he got people to sign because "I wanted to get back to work." He was recalled November 3, 1937, although he has about 18 months less seniority than Potter. Potter was visited on November 3 by Assistant Foremen Lamb and Pettit. Lamb testified that he went to see Potter to find out whether Potter would sign the statement or whether he was a loyal union member, that Potter re- fused to sign, and he reported back to Krummel to that effect. Lamb also admitted that he explained to Potter that Ford would close the plant before recognizing the Union. W See Appendix II, C, 1. FORD MOTOR COMPANY 435 We find that the respondent did not recall Potter on November 3, 1937, in spite of his seniority over Freund, because of his expression of loyalty to the Union when questioned by Assistant Foremen Lamb and Pettit. Harold Rabenort started to work for the respondent on January 4, 1929, worked continuously except during the seasonal shut-down in 1931 and the depression shut-down of 1932-1934. In 1937 he was employed as a metal finisher. Rabenort was laid off in the September shut-down and was never recalled. The respondent's personnel rec- ords indicate that Rabenort's employment was terminated on Decem- ber 23, 1937, pursuant to Medical Letter No. 3. His foreman and assistant foreman testified that he was a good worker and that they did not know why he was not called back. Rabenort was a member of the Union. In the latter part of Oc- tober his assistant foreman, Walters, asked him to sign a statement of satisfaction and told him that Johnson would not open the plant until two-thirds of the men signed such statements. Rabenort did not sign. Matthew Spagnolo who, although a member of the Union, signed a statement of satisfaction was recalled November 19 and given Rabe- nort's job. Spagnolo had done similar work before the shut-down but his seniority dated only from December 16, 1936. We find that the respondent did not recall Rabenort on November 19, 1937, in spite of his seniority and ability, because of his expression of loyalty to the Union. Fred Smith started to work for respondent on January 28, 1935. He was laid off in the September 1937 shut-down. The respondent's personnel records indicate that Smith's employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. Before the shut-down Smith was a wet-sander on fenders. Of four men working on this operation, Dallam P. Ashburn had the least seniority, dating from November 30, 1936. Smith was a member of the Union. During the shut-down, Assist- ant Foreman Baudendistel came to Smith's house, asked him to sign a statement of satisfaction, and told him that his choice was between giving up the Union and giving up the company. Smith did not sign. At the hearing Baudendistel admitted that he went to see Smith about averting the strike, and to get Smith to sign the state- ment and thereby indicate that he would not want to go on strike. He added that he expected Smith to refuse to sign the statement. He denied that he told Smith that he would have to make the choice. Ashburn, although he had almost 2 years' less seniority than Smith, was called back on November 9. Although a member of the Union, Ashburn had signed a statement of satisfaction. 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that on November 9 the respondent, by giving preference to Ashburn, discriminated against Smith because of the latter's loy- alty to the Union. In December Smith tried without success to obtain reinstatement in the respondent's plant. Louis Winkelmaier started to work for the respondent on April 8, 1926, and was employed continuously thereafter except for a year lay-off during the depression. He was laid off on October 7, 1937, and has not been called back, the respondent's personnel records indi- cating that his employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. During the production in 1937, Winkelmaier spent most of his time on brake shoes. In the summer this job was taken over by the Detroit plant and thereafter he was employed at testing and repairing con- crete and at carpentry. During the shut-down he worked as a car- penter. Foreman Whiteknight testified that of the three carpenters in the department John Renshaw was the best, Winkelmaier and William Wilson were on a par. Winkelmaier was a member of the Union. When, prior to his lay- off, Assistant Foreman Link asked him whether he favored a company union, Winkelmaier declared against it and continued to wear his union button. Wilson and Renshaw, the other two carpenters, also joined the Union. Renshaw and Wilson, although both had over 6 years less seniority than Winkelmaier, were recalled on October 26, 1937. We find that the respondent failed to recall Winkelmaier on October 26, 1937, and instead recalled Wilson who had 6 years less seniority because of Winkelmaier's loyalty to the Union. Lawrence J. Winschie f started work for the respondent on January 29,1935. In 1937 he worked with Louis E. McGee,118 assembling front- seat cushions. John Kyle and John Kilzer comprised another team performing the same operation. Winschief had the most seniority in both teams. He and Kyle were originally the only men in this oper- ation. Now the operation is being performed by Kilzer and an un- identified individual who, before shut-down, worked in another department. Kyle was recalled to and is working on a different operation. The respondent's personnel records indicate that Wins- chief's employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. Winschief joined the Union in April and was active in soliciting membership in it. Kilzer and Kyle also signed union application cards, but do not appear to have been outstandingly active. Foreman Schesser testified that Winschief used to stop working before the end of his working day. Assistant Foreman Lilly testified that Winschief 118 The allegation of discrimination against McGee is hereinafter dismissed . ( Appendix IT, C, 1.) FORD MOTOR COMPANY 437 used to sing at his work. It appears that both statements are true, but that Winschief's singing did not interfere with his work and that he was able to get ahead in his work so that he could leave a few minutes before quitting time to clean up before the bell rang. The respondent's third amended answer, dated January 24, 1938, alleged that Winschief had not been reinstated because there was no work for him but that he would be recalled when needed. The fourth amended answer, dated March 22, 1938, stated that respondent would never rehire him because it believed him guilty of "unlawful and wrongful acts." For the reasons hereinabove stated we find this defense to be without merit. We find that the respondent failed to recall Winschief on November 1, 1937, and recalled persons having less seniority because Winschief was active on behalf of the Union. 2. Cases in which the Board reverses the Trial Examiner, who found no discrimination Albert J. Buelt was employed by the respondent regularly from 1930 until the shut-clown in 1937. Buelt's employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. Buelt's work before the shut-down was getting fenders out of stock, washing them, ,and feeding them into the dry sander. Assistant Foreman Grodie testified that Buelt was a fairly good worker. Buelt was a member of the Union. Jack O'Connell, chief time- study man, visited Buelt on October 26 and told him that if Buelt would have nothing to do with the Union, he would go and see Buelt's boss and try to get him back to work. Buelt told him that he would not give up the Union. O'Connell testified that, knowing that Buelt was recently married, he sought out Buelt because he wanted to help him. O'Connell, in his capacity as chief time-study man, had supervision over a number of clerical employees. He had formerly been an assist- ant foreman. O'Connell himself testified that the Union considered him a sort of "efficiency man," ineligible for membership. We are of the opinion that by refusing to give up the Union when requested by O'Connell to do so, Buelt lost his chances of reinstatement. The respondent has not recalled Buelt since the shut-down. After production started, Buelt's operation was performed by Clarence Nier- man and Leslie Warden, both of whom joined the Union but signed statements of satisfaction. Although Warden was senior to Buelt, Nierman has approximately 3 years less seniority than Buelt. We find that the respondent failed to recall Buelt on November 15, 1937, in spite of his experience and seniority because of his expressed loyalty to the Union. The discrimination against Buelt started on November 15, 1937, when production began. 2S3O:14--41-- of 23-29 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Joseph L. Knobbe was employed by the respondent continuously from January 5, 1935, until his lay-off at the time of the shut-down in September 1937. The respondent's personnel record indicates that his employment was terminated on December 23, 1937, pursuant to Medical Letter No. 3. He was a mechanic in the repair department. Knobbe joined the Union against the advice of Foreman Tonsing that lie should not do so. Foreman McDowell testified that he had no knowledge of Knobbe's union affiliation, but admitted that Knobbe told him once when he reprimanded Knobbe, that "they were jumping on him only because he joined the union." Knobbe was an active member of the Union. Floyd Mahon, who had 16 months less seniority than Knobbe, and who never joined the Union, was recalled on November 6, 1937, and he has been performing his own and Knobbe's operation since then. The respondent alleges that Knobbe has not been recalled because he was inefficient. Foremen McDowell and Tonsing testified that they repri- manded Knobbe because his work was declining. However, McDowell explained that while Knobbe's work was not as good as it had been formerly, he continued to be an efficient worker and that the reason why Knobbe was reprimanded was that they were planning to make Knobbe an assistant to Tonsing, and did not want to lose this oppor- tunity. In light of all the evidence we find that the respondent's contention is without merit. We find that the respondent failed to recall Knobbe on or about November 6,1937, in spite of his seniority and ability, because his union activities were known to the respondent. APPENDIX II-A The Board finds that the respondent recalled the seven men whose cases are discussed in this Appendix before November 24, 1937, when the strike began, and that it did not discriminate in regard to the hire and tenure of employment of any of them. 1. Cases in which the Board affirms the Trial Examiner's finding Carl T. Busse was employed by the respondent from November 24, 1936, and James B. Murphy from February 16, 1935, until the Septem- ber 1937 shut-down. Both nien were recalled after the shut-down on November 5, 1937. Busse did not return to work. Murphy returned, but quit work during his first day because of his wife's illness. He has not reported to work since. The employment of both men was terminated on November 12, 1937. for failure to report to work within 5 consecutive days. FORD MOTOR COMPANY 439 Clyde O. Rennick was employed by the respondent in 1933, Joseph Evanick on December 15 , 1936. Both were laid off in the September 1937 shut -down . Rennick was recalled on November 5 and on Novem- ber 30, 1937 . Evanick was recalled on November 15 and on November 29. The two men did not respond to the telegrams , and did not testify at the hearing . Their employment was terminated on the respondent's records on December 6 and 7, respectively, for failure to report to work. William 7'. Scarborough was employed by the respondent regularly from 1921 until the September 1937 shut-down . He was recalled to work on November 15 by telegram . He did not receive the telegram and thus did not report . Again, on November 29 the respondent wired Scarborough . He received this telegram but did not report because the strike was then in progress . His employment was terminated on the respondent 's records on December 6, 1937, for failure to report to work. Scarborough 's employment was not terminated after his failure to respond to the first call . When called a second time on November 29, 1937, he refused to return because of the strike . In so doing, Scar- borough assumed the status of a striker. John E. Jones was employed by the respondent continuously from December 15, 1936, until the shut-down in September 1937 . He was a buffer ui the enameling department and worked on the operation described in the discussion relating to Buelt. Assistant Foreman Grodie testified that Jones was not as efficient as the other men in the crew. Jones testified that Foreman Schesser sent him a message calling him back to work when production started , but that he was out of town and did not come back until about January. 2. In the following case, the Board reverses the Trial Examiner's find- ing of discrimination F. H. Dudenhoffer started to work for the respondent in 1934. He was laid off in the September 1937 shut-down. On November 11, 1937, he was recalled to work. Dudenhoffer reported wearing his union button and was told by Gantner's "heavy-set assistant" (probably James B. Parr) that there was no work on that day and that he should come back on the following day. Dudenhoffer concluded that "there was no use" and did not return. His employment was terminated on December 23, pursuant to Medical Letter No. 3. There is no evidence in support of Dudenhoffer's conclusion that he would be refused em- ployment if he applied pursuant to instructions. 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX II-B The Board finds that the respondent, by failing, before November 24, 1937, to recall the 13 men whose cases are discussed in this Appendix, did not discriminate in regard to the hire or tenure of employment of any of them. 1. Cases in which the Board affirms the Trial Examiner's finding Alex T. Grossius was employed regularly by the respondent from April 25, 1930, until the September 1937 shut-down. He was an un- loader. Although a number of the unloaders who were recalled to work have less seniority than Grossius, the latter is not shown to have been active in the Union. Accordingly, there is no evidence that the respondent discriminated against him because of union activity. Harry Kremer was employed by the respondent regularly from April 2, 1929, until the September 1937 shut-down. In 1937 he in- stalled the clutch-and brake-pedal assembly to the frame. He was a satisfactory employee. After the shut-down Kremer's work was trans- ferred to Willis Groenert who is alleged to be "an exceptionally good man," but who has considerably less seniority than Kremer. Foreman Bates testified that he tried to get Kremer back before the strike and that he told Kremer's brother-in-law to notify him, but received no response. Kremer denied that he had been called, and since there is no direct evidence that the respondent notified him, we believe Kremer's denial. Kremer was again recalled during the strike, but then refused to report, assuming the status of a striker. There is, however, no evidence that Kremer was an outstandingly active union member to support the allegation of discrimination as to him. Carl Sobery was employed by the respondent continuously from January 17, 1935, until the September 1937 shut-down. He worked at bolting car bodies. Foreman Bates testified that Sobery's work was '"pretty fair." Sobery worked with three others-Roy Kelly, Edward I3. Brown, and William D. Martin. Although Martin and Brown, who had less seniority than Sobery, were recalled on November 9 and November 16, respectively, there is no evidence that Sobery was an active union member or that the respondent discriminated against him for union membership or activity. Sobery refused a call to work during the strike, thereby assuming the status of a striker. 2. Cases in which the Board reverses the Trial Examiner's finding of discrimination Lester E. Barker was employed by the respondent continuously from 1935 until he was laid off in the September 1937 shut-down. He FORD MOTOR COMPANY 441 worked with Fred J. LaRowe 119 and John P. Tice 120 installing hoods. Assistant Foreman Reith testified that Barker did good work "for a while" but then had trouble with him just as he was having trouble with the entire hood-fitting operation. On November 9, 1937, Jack U. Faucher and Woodrow Johnson, both of whom had over a year less seniority than Barker, were given the operation of hood assembly and installation. The difficulties with this operation increased with the placing of inexperienced men there and frequently several other employees had to help out Faucher and Johnson. The respondent's answer alleges that Barker was not reinstated be- cause of inefficiency. This contention is without merit since the evi- dence clearly shows that the difficulty on this operation was due to causes other than the inefficiency of the operators. There is, however, no evidence that Barker was a conspicuously active union member. Max L. Caldwell was employed by the respondent on May 4, 1932. He was laid off in the September 1937 shut-down. Caldwell installed "fishplates" on the right side of the automobile frame. Foreman Bates considered him a good worker. On November 9, 1937, Fred A. Atkins, whose seniority dates only from November 27, 1936, was recalled to work and given Caldwell's operation. Prior to the shut- down, Atkins had greased cars. Inasmuch as Caldwell was not a conspicuously active member, there is no evidence that the respondent discriminated against him for union membership or activity. Cald- well was recalled during the strike, but then refused to report, assum- ing the status of a striker. William E. Holloway was employed by the respondent regularly from December 17, 1928, until the September 1937 shut-down. He worked with Joe Jarboe and Frank Tedesco, Jr. Holloway was senior of the three and had charge of the work. This operation has been performed by Tedesco since the latter's reinstatement on November 15, 1937. Tedesco's plant seniority was about the same as Holloway's, but Tedesco had less experience on the operation. Although Holloway had been a shop steward, he resigned that post before the shut-down. His resignation was known to the management. Holloway later joined the strike and refused an offer of reinstatement during the strike. However, the record does not afford a finding that before the strike began the respondent considered Holloway an active union member. Carl Mailman started to work for the respondent in 1920 and was employed regularly thereafter. He was laid off on October 8, 1937. He was one of the oldest employees in the service-stock department. 119 See Appendix T. B. 1. 120 See Appendix II, C, 1 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mallman was a member of the Union . Gus Krumniel invited him "to sign up with the boys" twice after his lay-off. Mallman did not sign. Aside from his refusals to sign a statement of satisfaction, the record does not show that Mallman demonstrated his loyalty to the Union. Moreover , Krummel, who solicited Mallman, was not, him- self, a supervisory employee. While this case is not free from doubt, we shall dismiss it for lack of evidence that the respondent 's officials were aware of Mailman's union allegiance. John 7V. Messmer started to work for the respondent on April 25, 1924. His employment was continuous thereafter except for an interruption of 10 clays in 1931, and one for a few months in 1933. He was laid off on October 8, 1937. Messmer received four wage increases , two of which were given him in 1937 . He was a stock chaser with Leo Bergeron , who had about 6 years less seniority than Messmer. The respondent retained Bergeron throughout the 1937 shut-down. The respondent alleges that Messmer has not been reinstated be- cause of inefficiency . Foreman Kluesner testified that Messmer was a good worker , but that 'he does not want him back because during the summer of 1937 Messmer left his work before quitting time. Messmer's record of employment , and his wage increases , contradict the respondent 's allegation of inefficiency . However, there is no evi- dence that Messmer was an active union member or that the respond- ent discriminated against him for union membership or activity. Welda D. Meyer was employed more or less regularly by the respondent from 1925 until September 1937. Before the shut-down he was an acetylene welder; his operation was brazing drain tubes. Foreman Bragg and Assistant Foreman Pettit testified that Meyer was a good worker. On November 2, 1937 , Ernest Nieheiser, a welder who started to work for the respondent only in 1935, was recalled and given Meyer's operation . There is, however , no evidence that Meyer was active in the Union . After the strike had begun, Meyer refused reinstatement , thereby assuming the status of a striker. Leo G. Scheuerman started to work for the respondent in 1926 and was employed more or less regularly , thereafter . He was laid off on October 8 , 1937. Scheuerman worked in the service-stock department. It appears from the list of present employees in the service-stock department that the respondent has retained in that department about 23 employees who have less seniority than Scheuerman. The record does not indicate, however, that Scheuerman was an active union member or that the respondent 's failure to recall him was due to Scheuerman 's union activities. FORD MOTOR COMPANY 443 Ancil L. Swinford was employed regularly by the respondent from 1923 until September 1937. He was an enamel sprayer. Foreman Stanze testified that Swinford was a fair workman. Jasper Price and Reuben Waldrop, enamel sprayers, who were recalled on Novem- ber 3 and 8, respectively, both have several years less seniority than Swinford. The respondent recalled Swinford on November 15, 1937. He reported the following morning but was told by Personnel Man- ager Miller that there was not enough stock and that he would be called later. Swinford was not, however, shown to have been active in the Union. Swinford was recalled after the strike, but refused to work, thereby becoming a striker. Roy P. Van Lear has been employed by the respondent regularly since 1922. He worked as a ding man. Assistant Foreman Morrison testified that Van Lear was a fairly good worker. On November u. 1937, the respondent recalled Floyd A. Atwill, whose employment with the respondent commenced on November 30, 1936, and who held a different operation before the shut-down. Atwill was given Van Lear's work. It was not shown, however, that Van Lear was active in the Union. After the strike began, Van Lear refused reinstate- ment, thereby assuming the status of a striker. August W. Ward started to work for the respondent on May 6, 1930, and was employed regularly thereafter until the 1937 shut- down. He was one of 19 wet-sanders. Foreman Stanze testified that the 19 were so equal in ability that "you could not actually judge who to pick out," that Ward was a very good worker, and that he gave Ward's name to Personnel Manager Miller to have him recalled. Ward was not called back in spite of the fact that a number of wet- sanders with less seniority than Ward were recalled on November 9, 1937. The record does not indicate, however, that the respondent was aware of Ward's union membership. APPENDIX II-C The Board finds that the respondent did not, prior to November 24, 1937, discriminate in regard to the hire and tenure of employment of the 88 men whose cases are discussed in this Appendix.121 lu Of the 88 men whose cases are discussed in this Appendix , 37 were recalled during the sti ike The following 28 refused to report because of the strike and thereby assumed the status of strikers Bi ight Frederick A Meyer August Orth Carney Gi ahani C Miller F Rankin Clyne Hager Mirth R Rankin Costellano Kindel Milson Remmert DeBoard Kinealy Moore T Schmidt Edwards Leonard Norton Undei wood Favier Livingston O'1-learn _ Walker Burton testified that he did not receive the telegram recalling him. As to the remaining eight, the reason for their failure to report pursuant to call during the stake does not appear 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cases in which the Board affirms the Trial Examiner's finding Carl Baker started to work for the respondent on February 6, 1935, and was laid off during the 1937 shut-down. He did not testify and the circumstances of Baker's lay-off are not known. He was em- ployed in the maintenance department as scrubber on the third floor. Foreman Husser testified that Baker's work was taken over by Assist- ant Foreman Hake and others. George 111. Bartlzold and Dull Sloan worked together finishing coupes. Barthold's employment with the respondent started in 1932 and Sloan's in 1935. The evidence does not establish that Barthold or Sloan were needed in the plant prior to the strike. Walter F. Beller was employed continuously from November 1936 until the 1937 shut-down. During his short employment he was moved from place to place. At the time of the shut-down he in- stalled door stops. Assistant Foreman Walters testified that when Beller first came to his department, he was a fairly good worker, but after a while he lost interest, and his work became the subject of much criticism by the inspectors. Because of his frequent trans- fers to different operations, and because he was less efficient than the average employee, there is no showing whether Beller has been needed since the shut-down. Albert Borchelt was employed by the respondent for 5 months in 1932 and reemployed on February 13, 1935. He worked continuously thereafter until the shut-down in September 1937. He filed away imperfections on automobile tops. He was a skilled worker. After the shut-down and before the strike his work was done by Taylor, Gaasch, and perhaps others, who had somewhat less seniority than Borchelt. However, the record does not clearly indicate that Bor- chelt was needed before the strike, nor that he was an active union member. Hugh Bozeman was regularly employed by the respondent from April 24, 1929, until the shut-down in 1937. He was a metal finisher and, according to Foreman Bs;agg's testimony, a good worker. When production started after the shut-down, Sam Irvin was employed and given Bozeman's work, in addition to his own former operation of removing dings from painted, enameled, and white-metalled jobs. Irvin's seniority dates only from 1935, but his work on the combired operation apparently requires more skill than the metal finishing done by Bozeman. Although Bozeman had sometimes performed Irvin's operation during emergencies, there is no evidence that he was sufficiently competent to handle that work. Woodrow T. Brandt was employed by the respondent continuously from January 26, 1935, to the 1937 shut-down. He worked on the installation of inside trim with the group described in the discussion FORD MOTOR COMPANY 445 relating to Charles S. Schifferly .'22 His foreman and assistant fore- man testified that Brandt was a less efficient worker than the others engaged in similar work . There is no showing that the respondent required his services before the strike. Clifford C. Burton was employed by the respondent continuously from February 1935 until the shut-clown in 1937. He was a general repairman . There was no complaint about his work. Eugene Grimm, who has slightly more seniority than Burton , was recalled after the shut-down and has been performing Burton 's work in addition to his own. Ben B. Bunk was regularly employed by the respondent from March 30. 1928, until the shut -down in September 1937. He installed deck lids with Earl Woods and William Jones. Assistant Foreman Maurer testified that Bunk's ability equaled that of Jones' and that he surpassed Woods in speed. Bunk helped to organize the Union in the plant . He was a shop steward and a member of the executive committee. Bunk testified that he hit Foreman Schesser twice, Inspector Lee Dodd once, and an individual referred to as a "thug" once. Foreman Schesser discharged Bunk from his department after a fight between Schesser and Bunk. Superintendent Paul S. Mabie testified that when the replacement of personnel was commenced after the shut-down, he made out the list of men who would not be called back immediately : "It wasn't decided that we wouldn 't call them back altogether. We decided that we wouldn 't call them back until we absolutely needed them-I think Benny Bunk was on the list because he hit a foreman." Bunk's two teammates , whose seniority commenced only in 1935, have been called back to work. Bunk has not been called. We find that the evidence supports the contention that Bunk was not called prior to the strike because of his fight with his foreman. E. L. Caldwell was employed more or less regularly from 1924 until the shut-down in 1937 . In 1937 he installed back window glass in car bodies . Foreman Schesser and Assistant Foreman Cook testified that Caldwelt was slow and that the inspectors frequently complained about him. Caldwell 's operation was transferred to Elmer Weisbrodt , who has a few months less seniority than Caldwell, but who appears to be a much better worker. Clarence M. Casey, Frank Costellano, Raymond L. DeBoard, Joseph A. Hager, Roy D. Davis, Macy C. Hodge, Earl L. Keen, Chris Leonard, Charles Miller, August M. Orth, Joseph Salby, and Fred J. Schmidt were tack spitters in the cushion department . The tack-spitting 122 See Appendix I, B, 2. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operation has been considerably curtailed since the 1937 shut-down by the substitution of the use of hog rings , as well as by decreased production . Leonard had been employed regularly by the respondent since 1925 , Salby and Schmidt since 1928. The other nine men's seniority dates back only a year or two. All twelve were members of the Union . Casey, Davis, DeBoard, and Hager were among those visited by Assistant Foreman Luly and solicited for statements of satisfaction . They did not sign. None were recalled after the shut-down prior to the strike. Due to the similarity of tack spitters ' operations and consolidation of work in many cases , we are unable to determine whether the work of these men was needed in the plant before the strike. Harry W. Clyne and Alex Graham worked together with William R. Crawford , Duncan Gant, Justin Kniemeyer , and James C. Hagan installing felt on the inside of doors. Clyne and Graham had been employed by the respondent regularly since February 1935. It ap- pears that they were average workers . Graham was solicited by Assistant Foreman Gurley to sign a statement of satisfaction, but he refused to do so. The two men who have been performing these operations since the plant started production-Kniemeyer and Gant- have more seniority than either Clyne or Graham. William R. Crawford worked with Harry W. Clyne and Alex Gra- ham installing felt on the inside of doors. He worked for the respond- ent from February 1935 until the 1937 shut-down. During the shut- down, he was solicited by Assistant Foreman Coff to sign a statement of satisfaction , but he refused to sign. Since the plant started pro- duction, Crawford 's operation has been performed by employees who have more seniority than he does. Charles I. Degnan worked for the respondent regularly from 1928 until the shut-clown in 1937. He was a stock assorter and admittedly a good worker. After the shut-down Degnan's work had been transferred to Assist- ant Foreman William Dunn. Degnan's teammate , Vernon Leupker, whose seniority dates from 1935, was recalled to work on November 9, 1937, but was placed on a different operation. Ralph Edwards was employed by the respondent continuously from November 27, 1936, until the shut -down in September 1937. Until June 1937 , when he sustained an injury, Edwards assembled the front axle. Thereafter , until the shut -down, he sprayed the chassis. Ed- wards was a member of the Union . Assistant Foreman Sidney Moore solicited his signature for a statement of satisfaction and told Edwards that by signing it he would get his job back. Edwards refused to sign. After the shut -down his operation was consolidated with that FORD MOTOR COMPANY 447 of Fairchild 123 and was performed by employees whose seniority was equal to or greater than that of Edwards. The respondent's answer alleges that it had not reinstated Edwards because of his disability. On December 10, however, the respondent recalled Edwards and he refused to return. We find that by refusing the respondent's offer of reinstatement Edwards assumed the status of a striker. The respondent's contention of disability is negated by its recall of Edwards during the strike. Frank Filers was employed continuously by the respondent from January 23, 1935, until the shut-down in September 1937. He received six wage increases, the last one on June 2, 1937. The respondent's answer alleged that he is inefficient. However, Foreman Bragg said Eilers was a fair worker and that he was not recalled because there was no need for him. Assistant Foreman Hite substantiated Bragg's testimony. Eilers' employment record, his wage increases, and the testimony of his superiors indicate that Eilers was not inefficient, but, rather, above the average in ability and efficiency. Eilers, however, did not testify and it is not clear from the record that the respondent needed Eilers' services prior to the strike. Hugo Favier was employed by the respondent intermittently from January 17, 1929, until the shut-down in 1937. He aligned the steer- ing wheel. Foreman Bates testified that Favier "rated on par with the rest of the good men on that line." Oather Mowery returned to work on November 10, 1937, and combined his own former operation with Favier's work on the wheels. He had more seniority than Favier. Walter Flint was employed by the respondent regularly from 1921 until the shut-down in September 1937. He worked with William A. Kimberling installing backs of rear seats and package trays and clean- ing out car bodies with an air hose. There is no evidence as to who performed Flint's work after the shut-down but prior to the strike. Harry Freese was employed by the respondent regularly from 1925 until he was laid off in the September 1937 shut-down. Freese was a cement finisher. Foreman Whiteknight testified that Freese was a good worker when sober, but had to be sent home frequently for drunkenness. Superintendent Mabie testified that he made up a list of men who should not immediately be recalled and that Freese was on the list because of his drinking, although he is a good worker. Mabie's testimony is not contradicted. The respondent's allegation that Freese was inefficient is supported by the evidence. John E. Friederick was employed by respondent continuously from November 1936 until the shut-down in 1937. He installed "fish- plates." His foreman and assistant foreman testified that- Friederick See Appendix I, B, 2 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was a poor worker. His operation was absorbed by Frank Hagar who had more seniority than Friederick. John R. Grwnz was employed by the respondent intermittently from 1928 until the shut-down in 1937. He -washed windows and cleaned out auto bodies. Since the shut-down, Grunz's work has been performed by Assist- ant Foreman Tice Gurley and by Joseph Miller. Miller has consid- erably more seniority than Grunz and the respondent's policy of preferring assistant foremen over workmen for reinstatement after the shut-down is established. Maurice K. Harry was employed by the respondent intermittently from November 5, 1934, and was laid off at the time of the shut-down in September 1937. He was an electrician and worked as a helper to Conrad Zoellner. Harry did not testify, and the circumstances of his lay-off are unknown. There is no evidence in the record that his services were needed in the plant prior to the strike. Ben Hopwood was employed by the respondent intermittently front January 1935 to the 1937 shut-down. He was a stock unloader on the night shift. Foreman Spellmeyer testified that Hopwood was a poor worker and endangered the work of others with his clumsiness. Hopwood admitted that there were frequent complaints about his work. The respondent's answer alleges that Hopwood's employment was terminated because of inefficiency. This allegation is not refuted in the record. Robert C. L. Huntze, Jr., was employed by the respondent regu- larly from November 1922 until his lay-off in September 1937. In 1937 his operation was pulling cars for the line and checking them for dents and sanding. His superiors testified that he was a good worker, but "quite a play boy." Huntze joined the Union and was told thereafter, by Assistant Foremen Hanneken and Goellner, that he had done a foolish thing to join the Union after the number of years he had been working at the plant. Huntze's operation is now being performed by either Reiners or Goellner, both of whom are assistant foremen. Russell TV. Johnson was employed by the respondent intermittently from 1928 until the shut-down in September 1937. He and George R. Granberry 124 worked together as metal buffers. Johnson's superiors testified that he was a good worker, except that on pay days he was usually drunk. Johnson admitted that there had been complaints about his drinking. Johnson was an active member of the Union and a shop steward. l+ See Appendix II, C, 2. FORD MOTOR COMPANY 449 When the plant resumed operations, Leslie Warden was recalled and performed both Granberry's and Johnson's work. Warden has more seniority than Johnson, but he was on a different operation prior to the shut-down and had little or no experience at buffing. Warden's former jobs of putting away painted fenders and of sand- ing were assigned to Marvin Witworth who had not worked for the respondent since 1936. Johnson was not recalled and the respondent terminated his employment on December 23, 1937, pursuant to Medical Letter No. 3. The respondent's answer alleges that it failed to reinstate Johnson because of his inefficiency. The evidence indicates that Johnson's drinking did occasionally interfere with his work and thus supports the allegation of inefficiency. William 2'. Jones was employed by respondent from November 25, 1936, until the shut-down in 1937. His task was to oil the overhead chain. Upon the resumption of operations this work was consoli- dated with another operation and was given to Walter Senf, who has a few months more seniority than Jones. The respondent's answer alleged that Jones is inefficient. The allegation is supported by Foreman Whitekiiight's testimony. Jones did not testify. Bev hard A. Kinealy was employed by the respondent continuously from November 1936, until his lay-off at the time of the 1937 shut- down. His job was to touch up paint jobs. Foreman Stanze con- sidered him a fair worker. After the shut-down and before the strike Kinealy's operation was performed by Walter Smith who had more seniority than Kinealy. Jack; Lancaster was employed regularly from 1929 until the shut- down in September 1937. Foreman Schesser testified that he asked the employment office several times to recall Lancaster and Assistant Foreman Luly testified that Lancaster was a good worker. It ap- pears, however, that the operation performed by Lancaster before the shut-down has been discontinued. Harold Letner was employed continuously by the respondent fiom November 24, 1936, until the shut-down in September 1937. He worked with Frank Meyers.121 After the shut-down the operation of the two men was consolidated, and we find hereinabove that Mey- ers, who had more seniority than Letner, should have been recalled for the consolidated operation. It does not appear affirmatively that the respondent had need for Letner's services before the strike. William N. Lettner was employed by the respondent continuously from April 8, 1935, until September 8, 1937, when he was injured. Lettner received workmen's compensation until the end of ' October 1937, at which time he was released by the doctor. , He was a metal 'x' See Appendix I. B 1 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD finisher. According to Assistant Foreman Reiners' testimony, he was a "pretty good" worker. After the shut-down, Lettner's work was taken over by Otis Keen, who had 2 months more seniority than Letts er. Berry Livingston started to work for the respondent in 1935. He was laid off at the time of the shut-down in 1937. Livingston in- stalled windshield headers,126 an operation which was eliminated on the 1938 model. He was described as an average workman. Inas- much as his job was eliminated after the shut-clown it is not clear whether or not the respondent needed his services before the strike. Odia E. Meyers was employed by the respondent continuously from December 16, 1936, until the shut-down in 1937. He worked with Charles Tuschoff,127 Henry G. Ketterer, and Carroll Conrad on deck leads. Meyers was a good worker. Ketterer, whose seniority dates from 1917, and Conrad, whose sen- iority dates from 1936, were recalled in the beginning of November 1937. We have found that Tuschoff should have been reinstated. There is no evidence that after the shut-down and before the strike more than two men were needed on the operation. Tuschoff and Ketterer have much more seniority than Meyers. Frank J. Milson was employed by the respondent continuously front January 1935 until the shut-down in 1937. He was a burner operator and was considered a fair worker. After the shut-down Gus Claus, who worked with Milson, was recalled on the night shift. Milson's own operation has been transferred to Fred Bauclendistel, an assistant foreman. Both Claus and Baudendistel have more seniority than Milson. Cale Monroe was employed continuously by the respondent from January 16, 1935, until the shut-down in September 1937. He "disced tops before they went into fixtures." His superiors agree that he was a good worker. After the shut-down part of his work was elimi- nated and the rest was consolidated with the operation formerly performed by Vondera 12' and Laramore.1Y9 There is no shoving, therefore, that Monroe's services have been needed in the plant. Eugene Moore and Freeman H. Warren worked for the respondent from 1936 until the shut-down in September 1937. Both were weld- ers, Moore working on the outside of the 4-door body and Warren on the inside of the coupe. The men who were assigned Moore's and Warren's work when production started had more seniority than they did. 126 A piece of metal installed between the top of the windshield and the top of the car. 127 See Appendix I, A. 128 See Appendix I, A. 120 See Appendix I, C, 1. FORD MOTOR COMPANY 451 Louis F. McGee worked for the respondent continuously from November 1936 until the shut-down in 1937. He had a job in the trim department assembling front-seat cushions. McGee had less seniority than the other men engaged in that operation. James B. Nalley was regularly employed by the respondent from April 25, 1934, until the shut-down in September 1937. His operation consisted of handling the turntable. Assistant Foreman Coff testified that Nalley was a fair worker. Since the shut-down, Nalley's work has been performed by Stephen Valcheck who has 6 years more sen- iority than Nalley. William N. Nicholson was regularly employed by the respondent from July 1, 1925, until lie was laid off in the 1937 shut-down. For a number of years he was a foreman and inspector. In 1937 Nichol- son's job was gauging windshields. Since the shut-down, his work has been performed by Assistant Foreman Donelon. The respond- ent's policy is to prefer assistant foremen for employment. Robert L. Norton was employed by the respondent intermittently from 1929 until the shut-down in 1937. He attached headlight wires. Norton was considered a fair worker. After the shut-down his oper- ation was consolidated with that of Virgil White, who had more seniority than Norton. Raymond O'Hearn started work for the respondent in 1928. He was laid off for inefficiency in 1931 and reemployed in December 1936. Thereafter he worked continuously until the shut-clown in 1937. O'Hearn glued cotton padding onto door panels. Foreman Smiley testified that O'Hearn was a fair worker. When production started after the shut-down William Shelby, who was a more experienced worker, performed O'Hearn's operation. William Owens was employed by the respondent intermittently from 1928 to December 1933 and continuously thereafter until the 1937 shut- down. His job was spraying paint on stock and he was an average worker. The respondent's answer alleges that Owens had not been needed in the plant since the shut-down, and the record contains no evidence in contradiction. Emery Benton Poole worked for the respondent regularly from 1929 until the 1937 shut-down. At the time of his lay-off, Poole was em- ployed in the glass shop at salvaging broken glass. Foreman Schesser testified Poole was a good worker. Poole was a member of the Union, and when toward the end of October he was asked by Assistant Foreman Gurley to sign a statement of satisfaction, he refused. After the shut-down, Assistant Foreman Maurer took over Poole's operation. Although the circumstance of Gurley's solicitation and 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Poole's refusal create a suspicion of discrimination, the record does not indicate that Poole was needed in the plant after the shut-down. Donald W. Potter was employed by the respondent continuously from November 24, 1936, until the 1937 shut-down. He was a welder on the 4-door body. His superiors testified that lie was a fair worker. Up to the time of the strike Potter's work was performed by William Borman, who had considerably more seniority than Potter. Others who were reinstated to similar positions also have longer employment records than Potter. James J. Prichard started to work for the respondent in January 1935, but was laid off 3 months later and was not reemployed until November 1936. Thereafter he worked continuously until the 1937 shut-down. Prichard apparently received no wage increases during his employment. Foremen Bates and Bragg both testified that Prichard's work was very poor and undependable. Superintendent Mabie testified that he had made up a list of men whom he did not want called back until they were absolutely needed and that Prichard was on that list because of his drinking. The evidence supports the contention that Prichard is less efficient that the men whom the respondent recalled prior to the strike. Frank Rankin was employed by the respondent for a few months in 1930 and was reemployed in 1935. Since that time he worked con- tinuously until the 1937 shut-down. Rankin was an elevator operator. All the elevator operators who were called back in November 1937 had more seniority than Rankin. Raymond Rankin was employed by the respondent continuously from November 28, 1936, until the 1937 shut-down. His job was attaching headlights to right fenders. Kenneth Schrimpf performed the same operation on the left side. Schrimpf, who had approximately the same seniority, was recalled and performed Rankin's job as well as his own until the strike was called. Paul Remmert was employed by the respondent continuously from November 1936 until the 1937 shut-down. He and Norman Kirby installed front and rear bumpers on car frames. When production started, Kirby, who had equal seniority, was recalled and absorbed Remmert's work. There is no showing that Remmert was needed in the plant prior to the strike. Exel I. Schaeffer was employed by the respondent regularly from February 1935, until the 1937 shut-down. There is no evidence in the record to establish what his work was in the plant. Harry C. Schmidt was employed by the respondent intermittently from January 26, 1935, until the 1937 shut-down. He installed head- lights. Foreman Schesser testified that his work was fairly good. There is no evidence, however, that Schmidt was needed in the plant after the shut-down and before the strike. FORD MOTOR COMPANY 453 Monroe Setzer worked for the respondent for a few months in 1929. He was reemployed on January 14, 1935, and worked continuously thereafter until the 1937 shut-down. He and Albert H. Borchelt '130 filed imperfections from automobile tops. Assistant Foreman Goell- ner testified that Setzer was a fair worker. After the shut-down and before the strike, the work formerly performed by Setzer, and Borchelt, was taken over by Taylor, Gaasch, and others. Although the men who replaced Setzer had slightly less seniority than he, the record does not sustain the allegation that the respondent discriminated by failing to recall him. Wilbur Snowden was regularly employed by the respondent from 1929 until the shut-down in September 1937. He installed headliners with Anthony Orth,131 David Scobbie, and Ed Shaw. After the shut- clown, Scobbie and Shaw were recalled to this operation. The testi- mony of Snowden's foreman and assistant foreman that, while the other three men were on a par in efficiency, Snowden was a less efficient worker is uncontradicted. Robert E. Stringer was employed by the respondent continuously front January 16, 1935, until the 1937 shut-clown. He was a water- disc sander and was considered a good worker. After the shut-down Stringer's work was transferred to Otis Keen, who performed the. same operation before the shut-down and whose seniority is about a month less than that of Stringer. The record does not support the allegation of discrimination with respect to Stringer. Ebner Thebeau was employed continuously from January 14, 1935,, until the 1937 shut-down. He performed solder work at the end of the assembly line. Thebeau was considered a good worker, but when production started, Foreman Brao-Cr and Assistant Foremen George Reiners and Goellner performed his work. It does not af- firmatively appear that Thebean was needed in the plant when production started. John P. Tice was employed by respondent intermittently from January 1935 until the 1937 shut-down. He worked with Fred LaRowe 132 and Lester E. Barker 133 on the installation of hoods. On the 1938 model Tice's part of the operation has been eliminated. Edward IV. Tod worked steadily for the respondent from March 1, 1928, until September 9, 1937, when he was discharged. For 7 or 8• years Tod had worked in the body shop. At the time of his discharge he was an unloader on the night shift. Although Tod testified that he was a chief shop steward his name' does not appear on the list of the Union's officials. We may neverthe- 130 See Appendix II, C, 1. 131 See Appendix I, C, 1. 322 See Appendix I, B, 1. I'll See Appendix II, B, 2. 2S;n' 4-41-col 23--30 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD less infer that he was an active union member, for Foremen Spell- meyer and Creachbaum both testified that they had heard that Tod was soliciting members for the Union. Spellmeyer and Creachbaum also testified that Tod was a very poor worker. Tod testified that at the time of his discharge Creachbaum told him that he was through "for good." The respondent alleges that it will not reinstate Tod because he is inefficient. Auburn B. Ulman, was employed by the respondent continuously from February 5, 1935, until the 1937 shut-down. He and William Pohlman installed door molding. Assistant Foreman Cook testified that Ulman was a fair worker, but careless. After the shut-down Ulman's work was consolidated with that of Pohlman and assigned to the latter. Pohlman had considerably more seniority than Ulman, and was at least as good, if not better, worker than Ulman. Zelmer Underwood worked together with Edward Smith and Wil- liam E. Wheeler 134 at washing sides and tops of car bodies. Under- wood was employed from December 1, 1936, until the 1937 shut-down. Assistant Foreman Meiners testified that he was a fair worker. After the shut-down Edward Smith, who had considerably more seniority than Underwood, performed the -,gashing operation up to the time of the strike. Roy Wade was regularly employed by the respondent from 1928 until September 1937. At the time of the shut-down his job was grinding and painting fenders. Assistant Foreman Morrison testified that Wade was a very good worker. Wade was a member of the Union. He was told by Assistant Foreman Baudendistel that lie would have to sign a statement of satisfaction in order to get back in the plant. Wade refused to sign. Baudendistel admitted that he visited Wade in order to find out how he felt about the strike. After the shut-down, Wade's work was transferred to Samuel Nau, whose seniority dates from 1923. Frank Walker was employed by the respondent for 7 months in 1930 and from November 1936 to the 1937 shut-down. His job was on windshields. In October Assistant Foreman Coff asked Walker to sign a statement of satisfaction. Walker refused to sign. Assistant Foreman Hanneken also questioned Walker as to how he felt about the Union. After the -shut-down Walker's work was performed by Clarence Grahn who had more seniority than Walker. William E. Wheeler worked with Edward Smith and Zehner Under- Wood,' •'' at washing sides and tops of automobile bodies. Wheeler's See Appendix II, C, 1. See Appendix II, C, 1. FORD MOTOR COMPANY 455 service was uninterrupted from January 18, 1935, to the 1937 shut- down. Assistant Foreman Reiners testified that Wheeler used to be a fair worker, but became careless a couple of months prior to the shut- down. Wheeler was an active member of the Union, and had once been a shop steward. Edward Smith, who had more seniority than Wheeler, was called back when production started and performed the operation until he went on strike. George Winterer has been employed by the respondent regularly since 1921. He was laid off after the shut-down of September 1937. He was a painter in the maintenance department. Although Winterer's seniority exceeded that of Hiller, the other painter in the maintenance department who was retained through the shut-down, Hiller had greater versatility. Moreover, there is no showing of union activities on Winterer's part to support an inference of discrimination against him for union reasons. 2. Cases in which the Board reverses the Trial Examiner's finding of discrimination John Beverly worked for the respondent intermittently from March 8, 1935, until the shut-down in September 1937. Foreman Bragg testified that he had some trouble with Beverly's work, but that it might have been due to his mechanical equipment. Beverly's opera- tion, welding in retainers and package trays, was performed by James Dillman and Fred Glover after the shut-down and prior to the strike. Both Dillman and Glover have more seniority than Beverly. Maurice H. Brawner started to work for the respondent on Janu- ary 30, 1929. He was laid off from 1930 to 1935, but was reemployed on May 22, 1935, and worked continuously thereafter until Septem- ber 13, 1937. He was seriously injured at the plant, but recovered sufficiently to do light work in the tool crib, where lie worked at the time of the shut-down. The respondent alleges in its answer that it has not rehired Brawner because he is disabled from performing the duties of his employment. At the time of the hearing Brawner had a claim for compensation pending, and the respondent states in its exception that final determination has been made therein, resulting in an award for permanent disability. The respondent's personnel records indi- cate that Brawner's employment was terminated on December 16, 1937, pursuant to Medical Letter No. 3. William P. Bright and Thomas L. Schmidt worked in the group discussed in the paragraphs dealing with Charles S. Schifferly.13b B See Appendix I, B, 2 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is no complaint about their work. Bright's seniority dates- from 1932, Schmidt's from 1935. The work of these two men has been transferred to Mandes L.. Chott and Sylvester Hcmpe. Chott was on a different operation prior to the shut-down, but has more seniority than either Bright or Schmidt. Although Hempe had not been employed by the respondent since 1936, he was reemployed only after the strike, on December 2, 1937. Thus, prior to the strike, Schmidt and Bright had been replaced by Chott who had more seniority than they had. Roy R. Carney was employed by the respondent for a few months in 1929 and again during 1935 and 1936. Carney was laid off at the- time of the shut-down in September 1937. Prior to the shut-down he worked with Edmund Erwin, welding side panels. Erwin has been employed by the respondent continuously since January 1935• and thus his actual service with the respondent is more than that of Carney. Erwin was recalled to work on October 22. George R. Granberry started to work for the respondent on Janu- ary 26, 1935. He was laid off in September 1937. Granberry was a metal buffer, a good worker. Assistant Foreman Grodie testified that he sent for Granberry in the middle of November 1937. How- ever, respondent's records do not support this contention. Leslie Warden, whose seniority dates from 1926, who put away painted fenders prior to the shut-down, was recalled and performed the con- solidated operations of Granberry and Russell W. Johnson.131 Fred J. Kindel was employed by the respondent intermittently from, 1930 until the shut-down in 1937. He worked with Peter Singer as door fitter. Assistant Foreman McDowell testified that Kindel was a careless worker. Kindel joined the Union and was shop steward for a short time but not at the time of the shut-down. He volunteered to sign a statement of satisfaction. On November 3, 1937, Kindel's operation was transferred to Peter Singer, whose service record is longer than Kindel's. George L. King and Singleton M. McElroy installed vent lids in the cowl. King had been employed continuously since 1935; McElroy intermittently since 1931. Although there is complaint about King's inefficiency and playfulness, it appears that both men were at least fair workers. After the shut-down, their work was transferred to Frank Morris and John Moxley, who formerly salvaged glass and did other work, and to Lester Mitchell, who formerly installed dash insu- lators. Mitchell and Morris have more seniority than McElroy or King; Moxley has somewhat less. Paul Kleiner was regularly employed by the respondent from 1929, until October 8, 1937. He worked as a stock checker with Estell Mat- 131 See Appendix If, C, 1. FORD MOTOR COMPANY 457 thews, whose seniority dates from 1928. Matthews was retained and has absorbed Kleiner's work. Kleiner joined the Union ; Matthews did not. Employee Krummel telephoned Kleiner, after his lay-off , that if he would sign a statement .of satisfaction , he could get his job back . Kruminel, however , was not a supervisory employee. Louis H. Ludwig was regularly employed by the respondent from April 15, 1921, untilthe 1937 slut-down. He has not since been called back. Ludwig was a checker of miscellaneous stock. He was a satis- factory worker . After the shut-down his work was taken over by Ernest H. Poese, a former unit-list checker , who has more seniority than Ludwig. George L. Meier started to work for the respondent on February 22, 1923, resigned 2 years later , but returned in 1927 and worked contin- iiously thereafter instil the shut-down in September 1937. At one time Meier was an assistant foreman . In 1937 he was an assembly stock checker. Foreman Creachbaum testified that Meier's work was un- satisfactory and that he asked Stock Superintendent Wunderlich for Meier's dismissal . Wunderlich, on the other hand, testified that he thought that Meier was Foreman Creachbaum 's equal in speed and accuracy in clerical work. On October 27, 1937 , Herman Kessler, a former stock checker, who worked in the inspection department at the time of the shut-down, was called back and was given Meier 's work. Kessler has somewhat more seniority than Meier. Arthur A. Meyer was employed by the respondent continuously from December 1936 until the shut-down in September 1937. He and Nide Cobb assembled rear axles . Their work was apparently satisfactory. On November 3, 1937, Calvin Williamson was recalled and placed on this operation . Cobb was recalled November 9 and transferred to a different department. Both Cobb and Williamson have considerably more seniority than Meyer. Joseph Mirth was employed by the respondent continuously from November 1936 until the shut-down in September 1937 . He worked as a metal finisher with Mike Campanero. The respondent recalled Mirth on November 5. Mirth reported and stood around with three other metal finishers, waiting to be called by Gantner. He left when Gantner told the others that there was no work available at the present time. Campanero , who had more seni- ority than Mirth, was recalled when production started and he worked in the plant until he went on strike. The respondent again called Mirth on December 10, when produc- tion started, but at that time he did not respond because of the strike. Mirth's work was then given to Clarence Stolz , a former elevator operator. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX III Employees on respondent's Baudendistel, Fred Beal, Arthur Beiser, Alvin G. Coff, Joe Cook, Karl Donelop, Tom Dunn, Win. H. Eidson, Claude Emerson, Harry Enos, Charles Evans, James Faulkenberry, Clyde Gentz, Wesley Glasner, Frank Goellner, John Gramlich, E. F. Grimm, Eugene Grodie, Harry G. Gurley, Tice Hake, Fred Hanneken, Edw. pay roll who are Assistant Foremen Hite, Paul Hussey, Martin Kenney, Bert W. Lamb, Garth Link, Wm. C. Luly, Frank Maurer, Roy H. Moore, Sidney Morrison, Carl R. Nalley, Alfred A. Pettit, Chester Pratte, Bert Rabb, Wm. C. Reiners, George Reith, Edward J. Renick, Gail Sivley, Andrew E. Smiley, Marvin Van Dyke, Wm. Walters, Albert APPENDIX IV Men who left their work to go on strike Alcorn, Horace V. Baier, Fred H. Bell, Houston Black, Claude Block, Wm. J. Borders, Wm. F. Brady, William Brown, Aaron R. Brown, Ed B. Brown, J. A. Camp, Maurice A. Camp, Ross 0. Campanaro, Mike Chier, Geo. Coleman, J. Arthur Conway, John I. Curless, Nolan Denton, Roy D. Green, Frank H. Grossius, Joseph F. Hankins, Walter J. Heflinger, Geo. Hogan, Wm. S. Hopkins, Wesley E. Hrevus, John Jarvis, Louis F. Kettler, Albert B. Kulikowski, Peter W. Lamb, Thomas J. Luster, Thos. Mandry, Burton Meyer, Julius V. FORD Miller, Gus H. Mitchell, Chester Munzert, Herman F. Musko, Charles R. Neely, Clyde R. Oelger, Otto Overton, Theodore Roberts, Joseph H. Rohan, Frank X. Salvato, Frank Scannell, John Schaffer, Edward Schlueter, Chas. E. Schmidt, Jacob Shuffitt, Elvy Skelly, Philip Smith, Edward Smith, Jasper MOTOR COMPANY 459, Smith, Walter A. Sperry, Charles H. Stelling, Frank Stephens, Sylvester Stewart, Francis E. Thebeau, Anastie Tyree, Walter Waeltz, Erwin P. Waller, Joe L. Wandel, Henry D. Wilkinson, Bailey Williams, Arthur Williams, Earl Williams, Raymond Williamson, Roy Lee. Wurglitz, Henry Wurtz, Clarence APPENDIX V Employees discriminated against before the strike who refused reinstatement during strike Dale of Recall Johnson, Oscar C------------------------------ December 14, 1937 Keller, Irl------------------------------------ December 1, 1937 Key, Esco------------------------------------ December 3, 1937 Martin, James--------------------------------- December 10, 1937 Mitchell, Chester------------------------------ December 3, 1937 Remmert, Win-------------------------------- November 29, 1937 Simon, Charles -------------------------------- December 10, 1937 Stork, Ernest--------------------------------- December 10, 1937 Vancil , Robert------- ------------------------- December 10. 1937 APPENDIX VI Employees not discriminated against before the strike who refused reinstatement during the strike Bartold, George Borchelt, Albert Bright, William Burton, Clifford Caldwell, Max L. Carney, Roy Castello, Frank Clyne, Harry DeBoard, R. L. Degnan, Charles Edwards, Ralph Favier, Hugo Friedrich, John Graham, Alex 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hager, Joseph Holloway, William Kindel, Fred Kineally, Bernard Kramer, Harry Lancaster, Jack Leonard, Chris Livingston, Berry Meyer, Arthur Meyer, Welda Miller, Charles Milson, Frank Mirth, Joseph Moore, Eugene Norton, Robert O'Hearn, Raymond Orth, August Rankin, Frank Rankin, Raymond Remmert, Paul Scarborough, William T. Schaffer, Excl Schmidt, Thomas Sloan, Dall Sobery, Carl Swinford, Ancil Tice, John Underwood, Zelmar Van Lear, Roy Walker, Frank APPENDIX VII .Employees ordered reinstated who are alleged to have committed unlawful and wrongful acts Beare, Odia Beeler, Fred Been, Arnold Boeckstiegel, Alex Bryant, J. W. Butler, Bee Casey, Adel Coleman, Arthur Conn, Robert Cooper, Joseph Denton, Roy De Wandel, Henry Fairchild, Russel Forrest, Plummer Gruswitz, Frank Hogan, William Holloway, William Jarvis, Louis Jedliska, William Johnson, Perry Juley, Ben Keelan, James Kimberling, William Knierim, Joe Laramore, Raymond La Rowe, Fred Lohrum, Paul Meyers, Frank Olive, Jesse Pradee, James Rankin, William Ross, Calvin Semon, W. A. Schifferly, Charles Skaggs, Marvin Short, Roy Sperry, Charles Stroup, Guy Swinford, Ancil Thebeau, Howard Wade, Ollie Welsh, Adam Williams, Raymond Winchief, Lawrence Woolsey, Louis Zubeck, Max FORD MOTOR COMPANY APPENDIX VIII 461 Cases in which the Board reverses the Trial Exami? er who found na, discrimination Barry, Thomas R. Plummer, Herbert D. Blankenship, Hiram, H. Pradee, James P. Boulicault, Arthur J. Ross, Calvin G. Buelt, Albert J. Schifferly, Charles S. Butler, Bee Semon, W. A. Fairchild, Russell . Short, Roy Johnson, Perry A. Simon, Charles Knobbe, Joseph L. Skaggs, Marvin Lorenz, William A. Stevens, Clifton W. Miller, Herman C. Taylor, Albert C. Olson, Warner Wodicka, Adolph Parmantje, Anthony MR. WILLIAM M. LEIsERSON took no part in the consideration of the above Decision and Order.