Ford Motor Co.

National Labor Relations Board - Board Decisions

Nov 13, 1975

221 N.L.R.B. 663 (N.L.R.B. 1975)

FORD MOTOR COMPANY
Ford Motor Company and Raymond B. Frank and
Lisa Diamond . Cases 22-CA-6121 and 22-CA-
6128
November 13, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On' September 2, 1975, Administrative Law Judge
Julius Cohen issued the ' attached Decision in this
proceeding. Thereafter, Respondent filed exceptions'
with a supporting brief, and General Counsel and the
Charging Parties filed briefs in response to Respon-
dent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations, Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order as hereafter
modified.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the 'Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, ' Ford Motor Company, Mahwah, New Jersey,
its officers, agents, successors; and assigns, shall take
the action set forth in the said recommended Order,
as so modified:
1. Substitute the following for paragraph 1(d) of
the recommended Order:
"(d) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights
guaranteed them in Section 7 of the Act."
2. Substitute the' attached notice for that of the
Administrative Law Judge'.
1 The request for oral argument by Respondent is hereby denied as the
record and briefs adequately present, the issues and positions of the parties.
2 In par. 1(d) of the recommended Order and in the fifth paragraph of
the recommended notice, the Administrative Law Judge used the narrow
cease-and -desist language, "like or'related," rather than the broad injunctive
language, "in any other manner," the Board traditionally provides in cases
involving serious 8(a)(3) discrimination conduct, such as that found here
See N.L.R B. v. Entwistle Mfg Co., 120 F.2d 532, 536 (C.A. 4, 1941),
Electrical Fittings Corporation, a subsidiary of I-T-E Imperial Corporation,
216 NLRB No. 179 (1975). Accordingly, we shall modify the order and
notice to require Respondent to cease and desist from in any manner
infringing upon employee rights.
221 NLRB No. 99
663
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL NOT promulgate, maintain, give effect
to, or enforce any rule that limits the distribution
of literature in nonworking areas, on nonworking
time to literature relating only to the selection or
rejection by employees of a collective-bargaining
representative, and prohibiting such distribution
of literature concerning other matters relating to
the exercise by employees of rights guaranteed
them by Section 7 of the National Labor
Relations Act.
WE WILL NOT assign onerous work duties to
employees because they have engaged in union or
other protected concerted activities.
WE WILL NOT discharge or otherwise discrimi-
nate against any employee because that employee
has engaged in union or other protected concert-
ed activities.
WE WILL NOT discharge or otherwise discrimi-
nate against' employees because they have com-
plained about what they believe to be a violation
of the terms of the collective-bargaining contract
which we have with Local 906, UAW.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights guaranteed in Section 7 of the Act.
WE WILL offer full reinstatement to Raymond
B. Frank, with backpay plus 6-percent interest.
FORD MOTOR COMPANY
DECISION
STATEMENT OF THE CASE
Julius COHN, Administrative Law Judge : These cases
were heard at Newark, New Jersey , on March 25, 1975.
Upon charges filed respectively by Raymond Frank, on
November 1, and Lisa Diamond, on November 5, 1974,
and served on the same dates , the Regional Director for
Region 22 issued an order consolidating the cases and a
complaint on February 18, 1975 . The complaint alleges
that Ford Motor Company, herein called Respondent or
the Company, violated Section 8(a)(1) of the Act by
promulgating , maintaining, and enforcing an unlawful rule
with respect to the distribution of literature ; and that
Respondent further violated Section 8 (a)(1) and (3) of the
Act by making discriminatory work assignments to an
employee and then discharging him because of his union
and other concerted protected activities . Respondent filed
an answer denying the commission of unfair labor
practices.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Issues
1. Whether Respondent violated Section 8(a)(1) of the
Act by promulgating, maintaining, and enforcing a no-
distribution rule which unlawfully limits employees,in their
right to engage in concerted protected activities on
company property.
2. Whether Respondent violated Section 8(a)(3) and (1)
of the Act by making discriminatory assignments to and
then discharging Raymond B. Frank because he engaged
in union and other concerted activities.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. All parties have
filed briefs which have been carefully considered.
Upon the entire record of the case and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Respondent, a Delaware corporation, has a principal
office and plant at Dearborn, Michigan, and various other
plants including a plant at Mahwah, New Jersey, where it
has been engaged in the manufacture, sale, and distribu-
tion of automobiles, trucks, and related products. In the
course of its business, Respondent annually sells and ships
goods valued in excess of $50,000 directly to places outside
of the State of New Jersey. Respondent admits and I find
that it is an employer within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 906, United Automobile, Aerospace, and Agricul-
tural Implement Workers of America, herein called the
Union, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Violations of Section 8(a)(1) Alleged in
Case 22-CA-6128
1. The facts
Since September 25, 1974, Respondent has maintained
and enforced at its Mahwah, New Jersey, plant a . rule
reading as follows:
The Company is revoking its rule which prohibited,
without exception, unauthorized distribution of litera-
ture and replacing it with a rule that prohibits
unauthorized distribution of literature except distnbu-
tion, in nonworking areas, during nonworking periods,
of literature pertaining to selection or rejection of a
Union.'
1 The apparent revocation of a prior rule and replacement with a
modified rule came about as a result of a prior unfair labor practice charge.
Lisa Diamond, an employee and a member of the Union,
is also a.member of a group called "The Militant Solidarity
Caucus of UAW Local 906," which publishes a newsletter
entitled "The Militant Auto Worker." On November 1,
1974, Diamond requested permission of the labor relations
department of Respondent to distribute on company
property a newsletter dated November 4, 1974, entitled
"Election Supplement," to employees on nonworking time.
Permission having been denied, on November 4 she and
other employees distributed the leaflets outside the plant at
the entrance gates. Thereafter on November 12, she again
sought permission to distribute on company property
another newsletter of the caucus dated September, 13, 1974,
entitled "Forced Overtime: Union Silent About Company
Lies." During the month of September, Diamond had
distributed this newsletter outside the plant at the entrance
gates but was not successful in reaching most employees.
The caucus desired to reissue the newsletter and distribute
it on company property because overtime was again an
issue in November. Respondent also denied permission as
to the distribution of this newsletter.
Diamond wished to distribute the literature at two inner
gates on company, property through which all hourly
employees must pass to go from the parking lots into the
plant .2
The newsletter dated November 4 relates to the political
elections of November 1974. It is headed "Labor's Choice
in the Elections: Tweedle dum or Tweedle dee?" The letter
generally attacks the policies of labor unions to endorse
candidates from either the Democratic or Republican
parties and favors the establishment of an independent
party of labor. References are made to Watergate, the
coverup, inflation, and recession. It castigates union chiefs
who lead the unions and their members to endorsement of
the traditional parties and ends with a call for an
independent workers' party and for a workers' government.
The newsletter dated September 13, 1974, consists of two
sheets stapled together, each of which is printed on both
sides comprising, four pages of -printed material. The top
sheet contains a long discussion concerning the issue of
forced overtime at the Ford plants, and an appeal to
employees to attend a union meeting at which the Caucus
intends to present certain resolutions detailed in the
newsletter. The back of the first sheet also contains a
discussion of an alleged assault upon -an employee, a
supporter of the Caucus, by a union representative and the
reactions of the Company and the Union to this incident.
The second sheet of the newsletter deals with the economic
situation in the country and the role played by -union
leaders in these matters. In addition there is a paragraph
concerning the denial by the Government of a visa to an
Australian labor leader on the ground that he is a member
of the Communist Party., The back of the newsletter
contains a statement as to who comprises the MSC and a
detailing of its program. The program is a mixed bag of
union and employee objectives, political goals such as a
workers' party and a workers' government, and a call for
expropriation of basic industry.
2 There is no dispute as to the facts recited above.
FORD MOTOR COMPANY
Respondent and the Union are parties to a collective-
bargaining agreement effective as of November 19, 1973,
until September 14, 1976. The agreement contains the
following provision:
Article IV, Section 5. Rules and Regulations.
The right of the Company to make such reason-
able rules and regulations, not in conflict with'
this Agreement, as it may from time to time deem
best for the purposes of maintaining order, safety,_
and/or effective operation of Company plants,
and after advance notice thereof to the, Union
and the employees, to require compliance there-
with by employees, is recognized. The Union
reserves the right to question the reasonableness
of the Company's rules or regulations through the
Grievance Procedure.
2. Analysis
a. The validity of the rule
It is well settled that Section 7 guarantees to employees
the right to engage in concerted activities' such as the
distribution of union literature and that an employer
violates Section 8(a)(1) of the Act by prohibiting the
distribution by employees of union literature on nonwork-
ing time in nonworking areas in the absence of special
circumstances . Republic Aviation Corp. v. N.L.R.B., 324
U.S. 793 (1945). Interference with the protected employee
right to distribute union literature is presumptively viola-
tive of Section 8(a)(1) unless the employer affirmatively
shows that such interference is necessary in order to
maintain production or discipline. Stoddard-Quirk Manu-
facturing Co., 138 NLRB 615 (1962). In this case Respon-
dent makes no such showing. Indeed it concedes that
Diamond sought to distribute literature in nonworking
areas on nonworking time without interference with the
activities of the Company. However, it contends that its
rule which forbids unauthorized distribution of literature
except literature pertaining to selection or rejection of a
union is valid under'N.L.R.B. v. Magnavox Co., 415 U.S.
322 (1974), which held that an incumbent union could not
waive such rights. This argument raises issues as to whether
the Union herein by contract and practice attempted to
waive 'the rights of employees to engage in this type of
distribution, and! whether, absent a waiver, Respondent
construes the Court's holding in Magnavox too narrowly.
Clearly,, there is',no waiver in this case. Article IV, section
5 of the collective-bargaining agreement provides that the
Company may make reasonable rules for' maintaining
order, safety, and effective operation of its plants. There is
no mention in this or any other provision concerning
solicitation or distribution rights of employees. It has been
repeatedly held by the Board and the courts that waiver
3 See Suburban Transit Corp., 218 NLRB No. 185 (1975); Gary-Hobart
Water Corporation v N.LR B, 511 F.2d 284 (C.A 7, 1975).
4 The Magnavox Company of Tennessee, 195 NLRB 265, 266 (1972)
5 The United States Court of Appeals for the Sixth Circuit consolidated
both General Motors cases and enforced the' Board's Order in 211 NLRB
986 (1974) regarding the literature as to candidates for union office but
would not enforce the orders in 212 NLRB 133 finding that they are too
665
will not be readily inferred and a union will not beefound
to have surrendered its members' statutory rights ,m the
absence of "clear and unmistakable language to that
effect." 3 In the circumstances, I find no contractual
provision which can be construed as an attempt by the
Union herein to waive the rights of Respondent's employ-
ees to distribute union literature.' Of'course the Supreme
Court in Magnavox found invalid a rule forbidding
distribution in nonworking areas during nonworking time
notwithstanding a union's contractual waiver. Respondent
urges that the Magnavox decision is limited to'literature
relating to the selection or retention of a labor organiza-
tion, but has overlooked the Board's language used in
discussing the remedy in that case wherein it refers to
literature pertaming to "(1) the employees' selection of a
labor organization as the bargaining representative of the
employer; or (2) other-matters related to the exercise by
employees of their Section 7 rights." 4 While Magnavox was
a case involving the selection of a labor representative, the
Supreme Court did not adversely comment on the Board's
language regarding employees' Section 7 rights in matters
other than the selection of a bargaining representative. The
Board has reiterated its position in cases subsequent to
Magnavox.'
In General Motors Corporation, 211 NLRB 986 (1974),
the Board views its position as {having been upheld by the
Supreme Court in Magnavox, and finds that employees
may not be prohibited from distributing literature on
nonworking time and urnonworking areas in support of, or
in opposition to, the reelection of incumbent- union
officers. This, of course, is not concerned with the selection
of a bargaining representative, but is based on the
protected nature of the right under Section 7 to oppose the
reelection of incumbent union officials. In General Motors
Corporation, 212 NLRB 133 (1974), the Board, repeating its
general language as to Section 7 rights, found a broad no-
distribution' rule to be invalid despite the company's
contention that its rules have not been applied to employee'
organizational activity.5
In sum, I find that there is no waiver by the Union of
employee distribution rights in this case either by contract
or practice; that such waiver in any event, would be invalid
under Magnavox, and that the Respondent's rule limiting
distribution of literature to matters solely relating,to the
selection or retention of a bargaining, representative is
presumptively invalid.6 By promulgating and maintaining
such a rule on or about September 25, 1974, Respondent
violated Section 8(a)(1) of the Act.
b. The enforcement of the rule
A determination whether Respondent violated the Act
by enforcing its rule against Diamond's proposed distribu-
tions is dependent on whether the distribution of the two
issues of the Militant Auto Workers by=Diamond would
broad General Motors Corp v. N L R B, 512 F.2d 447 (1975) However, I
am bound by the Board 's interpretation of the law in these cases
6 Respondent has not sought to rebut this presumption by a showing of
special circumstances such as the necessity to maintain production,
discipline , or security . Cf. McDonnell Douglas Corporation v. N L R.B, 472
F.2d 539 (C A. 8, 1973).
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have constituted activity protected by Section 7.-The Board
has stated that the distribution must be "pertinent to a
matter which is encompassed by Section 7 of the Act."
McDonnell Douglas Corp., 210 NLRB 280 (1973). Such
protection is not limited to activities immediately related to
the employment relationship or working conditions but
also, as provided by Section 7, to "concerted activities for
the purpose of collective bargaining or other mutual aid or,
protection." Thus, Section 7 extends beyond the particular,
plant to assistance to employees of other employers.
N.LR.B. v. Peter Cailler Kohler Swiss Chocolate Co., 130
F.2d 503 (C.A. 2, 1942): And the Board has recently held
that if some of the material in newsletters contain
gratuitous remarks or "social comment" matters, that does
not detract from the conclusion that the distribution was a
concerted activity for `the purpose of seeking improvements
in working conditions.7
Applying these principles to the newsletters whose
distribution was prohibited by Respondent, I find that the
proposed distribution of the newsletter dated September
13, 1974, was an activity protected by Section 7. The main
subject of this letter concerned the issue of forced overtime
in Respondent's plant, certainly a matter within the
purview of Section 7. The fact that the second page of the
letter dealt with political matters to some extent does not
compel a contrary conclusion because, as noted, these
mixed letters have been held to be protected.8
On the other hand, the newsletter dated November 4,
1974, gives one pause. The rights of employees to distribute
literature under Section 7 are not unlimited as considera-
tion must be given to'the rights of the employer to regulate
his property. Republic Aviation Corp. v. N.LR.B., 324 U.S.
793 (1945). The newsletter' of November 4, entitled
"Election Supplement," is purely a political tract exhorting
employees not to support the traditional parties and their
candidates in the 1974 congressional elections, but to seek
an independent workers' party. This is wholly political
propaganda which does not relate to employees' problems
and concerns qua employees. The "mixed material"
argument adopted by the Board in Samsonite is of no avail
in this instance. While it may be argued that the election of
any political candidate may have an ultimate effect on
employment conditions, I believe that to be sufficiently
removed so as to warrant an employer to prohibit
distribution on its property of material solely concerned
with a political election. Accordingly, I find the November
4 newsletter not to be protected and Respondent's denial
of permission to distribute it not violative of the Act.
In conclusion I find that Respondent further violated
Section 8(a)(1) by enforcing its rule on November 1, 1974,
prohibiting Diamond and other employees from distribut-
ing the newsletter dated September 13.
r Samsonite Corporation, 206 NLRB 343 (1973), Eastex Inc., 215 NLRB
No. 58 (1974).
s Samsonite Corporation, supra, Eastex Inc, supra
DiMegho is a foreman and admittedly a supervisor within the meaning
of the Act.
10 Assembly line employees are entitled to 6 minutes' relief for each hour
B. The Violations of Section 8(a)(3) Alleged in
Case 22-CA-6121
1. The facts
Raymond Frank had been employed by Respondent
from about May 15 through September 17, 1974, on the
third shift in, the body, shop where he worked on the
assembly line. On Thursday, September 12, at 11:30 p.m.,
after the assembly line had been shut down for half an
hour, Foreman Vincent DiMegho told employees that they
would be working approximately 10 hours.9 At about 1:30
a.m. DiMeglio informed the employees that they would be
only working 9 hours and 36 minutes. Frank testified that
at that particular point -there was only approximately 3
minutes to go, so there was no chance of getting the 6
minutes' relief to which they were entitled. He therefore
called the foreman and asked him what happened to their 6
minutes of relief time.10 The foreman replied that they had
received plenty of time off that night because the line had
been broken down for about an hour and a half. Frank
said that when the assembly line was stopped it was not
considered relief time because the employees had to stand
by their jobs and sometimes were given other work to do in
the interim. DiMeglio told him that if he wanted his time
so badly he should take it and Frank stated that he was not
the only one who was entitled to the relief time. The
foreman then asked if he was some kind of organizer and
Frank said he was not. As the assembly line was -stopped
by this time, other employees gathered around and some of
them said that if Frank goes they would go too, and finally
DiMeglio said that the whole bunch of them could leave,
which they did.
The following day, September 13, when Frank reported
for work, DiMeglio gave him a broom and told him that
whenever the line is down he was going to sweep up.
DiMeglio said he was doing this because Frank is the only
one who "made the trouble." Before the lunchbreak, the
assembly line shut down and DiMeglio told Frank to pick
up the papers in the area repeating, that he was the one who
complained and was the only one, who made trouble, so he
is the only one who has to do this. After this incident other
employees told Frank not to do this work any longer. They
said he could not be singled out, because he asked about
the 6 minutes' relief time. Later that night the line was shut
down again and Frank was sitting with other employees
when DiMeglio called him over and told him to get the
broom because he was on company time. Frank told him
that he did not want to get special treatment because of
what happened the night before and because he was the
one whop complained. DiMeglio then called for the
committeeman, Sandy Richardson. When Richardson
arrived he noticed that the line was shut down and the
employees then gathered around him and told him that
Frank was being singled out for punishment and was being
asked to clean up the area when no one else was asked to
worked The total of this time is usually added to lunchbreaks. As the
employees are also entitled to relief time for overtime, that amount is
usually added to the last break if it is known irk advance If the overtime is
not ascertainable in advance, as occurred, on this particular evening, the
shift is ended earlier so that employees are credited with the relief time.
FORD MOTOR COMPANY
do it. Richardson told DiMegho to stop singling out Frank,
as he considered this harassment and, if continued, he
would file a grievance. DiMeglio.argued that he had the
right to tell people to clean up the area and that Frank had
been involved in an incident the night before in which he
had spoken out about a problem. Richardson continued to
argue with DiMeglio, telling him that it was wrong to
single out one individual, and in the end DiMegho said he
would no longer do it and that was the end of this
problem."
At the end of the following workday, Monday, Septem-
ber 16, Frank found a, slip requesting that he report to
labor relations. A labor relations representative, John
Gorcyea, then discharged him because he had not been
truthful in his application by failing to disclose that he had
been employed- by General Motors. This had been
determined by Respondent on a routine check, he was told.
Frank testified that he had been afraid, to reveal his
employment with General Motors, because while there he
had been involved in a labor dispute and had taken part in
a walkout along with 250 people. General Motors fired
those employees but subsequently rehired them. Frank also
stated 'that in addition he had not indicated on his
application that he had -attended' college and taught
English in school because otherwise he might not have
been hired as being overqualified.
Frank did not succeed in filing a grievance because the
union president told him that the Company had a right to
discharge an employee for falsification of their application.
2. Respondent's defense
Anthony Wright, supervisor of labor relations for hourly
personnel, testified that on September 12 he recieved a
telephone call from a union official named McConnell. In
-the course of their conversation concerning various labor
relations subjects, McConnell mentioned that several
employees working for Respondent were on layoff from
General Motors, and that 'Frank was one of them.
McConnell did not name any other employees nor did
Wright ask him for other names. Wright said that he was
interested because the Company was engaged in -the
production of a new model and in the event that General
Motors were to recall from layoff some of their people
working for Ford, production could be seriously crippled.
Wright then looked at Frank's personnel file and - noted
that he had not included General Motors as a former
employer. He then went into the office of Allan Carlson,
senior labor relations representative, and proceeded to call
General Motors on Carlson's phone. Wright spoke to a
person named Clay Warnick at General Motors, who
transferred the call to personnel -to verify Frank's employ-
ment. Wright, in the meantime, returned to his own office
for another call leaving Carlson to pick,up the phone call
to General. Motors. Wright stated he was informed later
11 The above account of the incidents of September 12 and 13 is a
synthesis of the testimony of Frank, fellow employees Raymond Shell and
James Bean , and employee committeeman Sandy Richardson. All, testified
credibly,and in the main corroborated one another. On the other hand the
only witness presented by, Respondent concerning these matters was
DiMegho, who testified briefly to the effect that he had no recollection of
the incidents described above but did not deny that they could have
667
that day by Carlson that GM had verified Frank's
employment. He said that either on September 13 or
Monday, September 16, he directed John Gorcyea, labor
relations representative on the third shift, to conduct a
hearing and discharge Frank for falsification of his
application.
Carlson testified that GM not only advised him of
Frank's employment but also noted that he had been one
of about 40 employees who were discharged because of a
work stoppage, then recalled by GM, and later laid off due
to a reduction in force. Carlson asked for further
information as to the names of these employees and the
GM official called him on September 13 and gave him a
list of 44 names-involved in the discharge and subsequent
recall.12 According to Carlson, he advised Wright of
Frank's prior employment at GM and together they looked
at Frank's file and employment application on September
13.
Neither the union official, McConnell, nor Warmck of
General Motors appeared or testified at the-hearing.
3. Analysis and conclusions
On the basis of the credited and virtually uncontradicted
testimony with respect to the relief-time incidents of
September 12 and 13 it. is clear that Frank was engaged in
concerted protected activity, when he inquired and then
argued with the. foreman, DiMeglio, as to the relief time
due to the employees as a result of their overtime work on
the night of September 12. In this regard he was seeking on
behalf of himself and the other employees to enforce the
contractual provisions relating to relief time. Accordingly,
when DiMeglio singled out Frank for extra duty, of
sweeping the floor on September 13, stating that this was
because of Frank's - complaints of the night before,
DiMeglio was discriminating against him, with respect to
his conditions of employment.- By the assignment of the
disagreeable or onerous work tasks to Frank, Respondent
violated Section 8(a)(1) and (3) of the Act.
In view of the events of September 12 and 13, I find that
Frank's discharge on September `17, coming at the end of
the first workday after the prior incidents, also to be
unlawful. I am not persuaded 'by Respondent's defense
that its labor relations managers, totally unaware of these
prior incidents or of Frank's background as it militant
employee, discharged him because they had suddenly
discovered he had falsified his employment application.
This contention rests on a series of coincidences which are
not satisfactorily explained. The 'telephone call from
McConnell, the union official who failed to testify, is rather
strange from several aspects. While he mentioned to
Wright that Ford was currently employing several. GM
people who were on layoff, he, could only name Frank.
Although Wright testified that he was 'keenly interested in
the number of laid-off-GM employees at Ford, he does not
occurred Accordingly, the testimony as related is almost uncontradicted
and is credited
12 Carlson wrote down in his own handwriting the names of these
employees furnished him by General Motors over the telephone He dated
this list September 13. However, as the date may, be important it is noted
that a smudge appears on the document over the number 13. The smudge
looks like an erasure, and there is no explanation for it.
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
explain why Frank was the only one named and why he
did not even ask for other names or make any investigation
as to the identity of • the other laid-off GM ' employees.
Wright was concerned ' that the recall by GM of these
employees would seriously affect Respondent's production.
When pressed as to how several or a few employees could
adversely affect the production of a company as large as
Respondent, he rather curiously stated that by several he
meant 40. Yet it would appeal that Wright was alleviating
the potential danger to production by investigating' the
status of the one man whose name had been supplied by
McConnell. There are other unexplained factors such as
the discrepancy between the testimony of Wright and
Carlson as to whether the employment file of Frank was
inspected on September 12 or 13. If they knew about the
falsification on the day of September 12, this would have
been before the incidents involving Frank occurred'on the
third shift of September 12 and 13. Yet no action is taken
until after Frank completed work on September 16, and, of
course, after his problems with Foreman DiMeglio. In
addition both these witnesses averred they were able to
recall these events because of the date placed by Carlson
on the list of 44 names he received from GM on September
13. Yet there is a smudge which indeed looks like an
erasure on the document where the date "13" is written.
No explanation has been made for this. Thus, for these
reasons I find that Respondent had not sustained its
defense by a preponderance of the evidence and that
Frank was not discharged because he falsified his applica-
tion.13
I have already found that Frank engaged in protected
concerted activity by attempting to enforce the collective-
bargaining agreement as to relief time. Knowledge by
Respondent of such activity is clear through the actions of
its supervisor, DiMeglio. His precipitous discharge on the
following workday is unexplained. I therefore find that
Respondent discharged Frank because of this activity and
thereby, violated Section 8(a)(1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent discharged, Frank in
violation of Section 8(a)(1) - and (3)' of the Act, I shall
recommend that Respondent be ordered- to offer him
reinstatement and make him whole for any loss of pay
resulting from his discharge, by payment to him of a sum
of money equal to the amount he normally would have
earned as wages from the date of his discharge to the date
on which reinstatement is offered, less net earnings during
that period. Such backpay shall be computed on a
quarterly basis in the manner described in F W. Woolworth
Company, 90 NLRB 289 (1950), and shall include interest
at 6 percent as provided in Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
It is further recommended that Respondent be ordered
to preserve and, upon request, make available to the Board
or its agents, for examination and copying, all payroll
records, 'social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
to analyze the amount of backpay due.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within -the
meaning of Section 2(5) of the Act.
3. By promulgating, maintaining, giving effect to, and
enforcing a rule which limits the distribution by employees
in nonworking areas on nonworking time to literature
relating to the selection or 'rejection by employees of a
collective-bargaining representative and prohibiting distri-
bution of literature as to other "matters relating to the
exercise of their Section 7 rights, Respondent has violated
Section 8(a)(1) of the Act.
4. By assigning Raymond B., Frank" onerous duties
because he engaged in union or other protected concerted
activities, Respondent violated Section 8(a)(1) and (3) of
the Act.
5. By discharging Raymond B. Frank because he
engaged in union and other protected concerted activities,
Respondent violated Section 8(a)(1) and (3) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within' the meaning of
Section 2(6) and (7) of the Act.
7. Except, as set forth above, the' General Counsel has
not established that Respondent has otherwise violated the
Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
Having found that Respondent has engaged in certain
unfair labor practices I shall recommend that it be ordered
to cease and desist therefrom and -to take certain
affirmative action designed to effectuate the policies of the
Act.
13 GTE Lenkurt, Incorporated, 204 NLRB 921, 981 (1973), relied on by
Respondent is distinguishable . In that case the alleged discrimmatee had
falsified his application by failing to reveal his conviction of felony charges
The Administrative Law Judge there found such misconduct was serious
and substantial The same could not be said of Frank's failure to list
General Motors as a prior employer in the circumstances
ORDER 14
The Respondent, Ford Motor Company, Mahwah, New
Jersey, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
14 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conchlsions, and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and'Order, and all objections thereto shall be
deemed waived for all purposes
FORD MOTOR COMPANY
(a) Promulgating, maintaining, giving effect to, or
enforcing any rule which limits the distribution by
employees in nonworking areas on nonworking time to
literature relating to the selection or rejection of a
collective-bargaming agent and prohibits distribution of
literature as to other matters relating to the exercise of their
Section 7 rights.
(b) Assigning onerous duties to employees because they
engaged in union and other protected concerted activities.
(c) Discharging or otherwise discriminating against any
employee because of their union activities or because of
their protected concerted activities.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Raymond B. Frank immediate and full
reinstatement to his former job,, or if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make him whole for his loss of earnings in the manner set
forth in the section ^ of this Decision, entitled "The
Remedy."
15 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
669
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due.
(c) Post at its Mahwah, New Jersey, plant copies of the
attached notice marked "Appendix."-15 Copies of the
notice on forms provided by the Regional Director for
Region 22, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps, shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the, complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."