The Dow Chemical Company

National Labor Relations Board - Board Decisions

Jul 25, 1939

13 N.L.R.B. 993 (N.L.R.B. 1939)

In the Matter of THE Dow CHEMICAL COMPANY and UNITED MINE WORKERS OF AMERICA, DISTRICT No. 50 Case No. C-712-Decided July 25, 1939 Ciwnucal Manufacturing Industry Interference , Restraint , and Coercion. espionage ; threats, statements , and strategic concessions to thwart outside ,union and foster inside union ; disruption of union meeting-Company-Domi- nated Union: initiation , sponsorship ; domination of, and interference with formation and administration ; coercion to join ; formation and use of, to op- pose outside union ; solicitation ; use of company time and property ; balloting ; exclusive representation agreement ; disestablished , as agent for collective bar- gaining ; agreement voided-Discrimination : lay-offs, discharges , transfer , refus- als to reinstate ; charges of , sustained as to 30 persons, not sustained as to 6 persons ; agreement and practice thereunder created closed - shop not covered by 'proviso to Section 8 (3) -Reinstatement Ordered: preferential list-Back Pay: awarded : work-relief project monies earned ordered deducted from back pay awarded and paid over to government financing said work -relief project. Mr. George J. Bott, for the Board. Mr. Calvin A. Campbell and Mr. C. Emerson Price, of Midland, Mich., for the respondent. Mr. Walter B. Brown, of Midland, Mich., and Mr. Alfred P. Pierson, of Saginaw, Mich., for the Association. Mr. Aaron Lewittes, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Mine Workers of America, District No. 50, herein called the Union, the National Labor Relations Board, herein called the Board, by Frank H. Bowen, Regional Director for the Seventh Region (Detroit,. Michigan), issued a complaint dated March 15, 1938, against The Dow Chemical Company, 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. Copies of the com- 13 N. L. R. B., No. 104. 993 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plaint, accompanied by notice of hearing, were duly served upon the respondent, the Union, and The Midland Chemical Workers' Asso- ciation, herein called the Association. The complaint alleged in substance (a) that the respondent. domi- nated and interfered with the formation and administration of the Association, and contributed support thereto; (b) that at various times between March 5, 1937, and February 8, 1938, the respondent discouraged membership in the Union by discrimination in regard to the hire and tenure of 46 named employees; and (c) that by all the above acts and conduct and by threats, surveillance, propaganda, and deprivation of the right of free assemblage the respondent interfered with, restrained, and coerced its employees in the exercise of the right to self-organization and to engage in concerted activities for their -mutual aid and protection as guaranteed in Section 7 of the Act. On March 22, 1938, the' respondent filed an answer to the complaint deny- ing that it had engaged in the alleged unfair labor practices. Pursuant to notice, a hearing was held at Midland, Michigan, from March 24 to April 12, 1938, inclusive, before R. N. Denham, the Trial Examiner duly designated by the Board. At the opening of the hear- ing the Trial Examiner granted a motion by the Association to inter- vene, and the Association filed an answer denying that the respondent 'dominated and interfered with its formation and administration, or contributed support thereto. The Board, the respondent, and the Association were represented by counsel and participated in the hear- ing. Full opportunity to be heard, to examine and cross-examine witnesses, and to produce evidence bearing upon the issues was afforded all parties. At the close of the Board's case, counsel for the Board moved to dismiss the complaint, without prejudice, as to 101 of the 46 persons therein named, and to amend the complaint to conform to the proof. The Trial Examiner granted both motions. During the course of the hearing the Trial Examiner made other rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On June 18, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties. 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), and (3) and Section 2 (6) and (7) of the Act, by dominating and interfering with the formation and administration of the Association, contributing support thereto, recognizing it as exclusive representa- i Their names are listed in Appendix E, infra. THE DOW CHEMICAL COMPANY 995 tive, and entering into an agreement with it respecting hours, wages, and working conditions; by discharging, laying off, or transferring to other positions 21 of the persons named in the complaint because of their union activity; and by committing other acts proscribed by Sec- tion 8 (1) of the Act; but that the respondent had not engaged in any unfair labor practice by discharging or laying off 15 other persons named in the complaint. He recommended that the respondent cease and desist from engaging in the unfair labor practices, and, affirma- tively, terminate the afore-mentioned agreement, disestablish the Association, offer back pay to four employees found to have been discriminatorily discharged or laid off, but since reinstated, offer full reinstatement with back pay to four employees found to have been discriminatorily discharged or laid off and not yet reinstated, and set up a preferred list for the 13 other employees found to have been discriminatorily laid off or transferred, with back pay for five of them. He further recommended that the allegations of the com- plaint with respect to the discriminatory discharge or lay-off of 15 of the employees named therein be dismissed. Thereafter, on June 27, June 29, and July 9, 1938, the Association, the Union, and the respondent, respectively, filed exceptions to the Intermediate Report and to various rulings of the Trial Examiner. On October 10, 1938, pursuant to permission, granted by the Board, the respondent, the Association, and the Union presented oral argu- ment before the Board in Washington, D. C., in support of their respective exceptions. The Board has considered all the exceptions and, save for those which are consistent with the findings, conclusions, and order set forth below, 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 Michigan corporation with its principal office and place of business at Midland, Michigan. It is engaged in the manufacture and sale throughout the United States of a wide variety of industrial and pharmaceutical chemicals. Its plant at Midland, the only one involved in this -case , employs approximately 4,000 per- sons. In 1937 the Midland operations consumed materials worth more than $2,000,000 and produced chemicals worth more than $15,- 000,000. The respondent obtained more than 75 per cent of the raw materials from outside the State of Michigan, and shipped more than 75 per cent of the finished products to States other than Michigan. 996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATIONS INVOLVED United Automobile Workers of America is a labor organization which, during the period involved in this case, was affiliated with the Committee for Industrial Organization, herein called the C. I. O. United Mine Workers of America, District No. 50, is a labor organi- zation affiliated with the United Mine Workers of America, which in turn is affiliated with the C. I. O. United Automobile Workers of America began to organize employees of the respondent early in 1937. United Mine Workers of America, District No.,50, began to organize employees of the respondent in August 1937. In October 1937 United Automobile Workers of America transferred its members who were employees of the respondent to United Mine Workers of America, District No. 50. Hereinafter we shall not attempt to distinguish be- tween United Automobile Workers of America and United Mine Workers of America, District No. 50, but refer to both of them as the Union. The Midland Chemical Workers' Association is an unaffiliated labor organization. , The Union and the Association admit to membership employees of the respondent. M. THE UNFAIR LABOR PRACTICES A. The respondent's position in Midland Midland's population of 9,000 persons depends upon the respondent for its income. Public projects can succeed only, with the aid of respondent's management and employees. City councillors and offi- cials, including the mayor, are generally employees of the respondent. A. P. Beutel, assistant general manager, testified that in all community movements employees of the respondent predominate, and further that "It isn't that Dow wants to control it but it just naturally fol- lows." The intimate connection between the community and the respondent emerges from Beutel's further testimony as follows : It is very hard sometimes to disassociate myself. I know I have to tell the City Council, "Now, I am talking as a member of the Council," and "Now, just a minute I will talk as assistant general manager of the Dow Company." The respondent thus exercised a pervasive control over the com- munity and its inhabitants. In view of this power, the statements and actions of the respondent and its supervisory employees could the more easily coerce the employees' will in favor of the respondent's desires. THE DOW 'CHEMICAL COMPANY 997 B. Interference, restraint, and coercion During the early months of 1937 the C. I. O. engaged in widespread organizational activity. During this period a sit-down strike oc- curred at Flint, which is about 55 miles from Midland. Pursuant to the request of a number of the respondent's employees, the C. I. O. sent a representative to Midland to organize among persons working for the respondent, since there was no labor organization in the re- spondent's plant at this time. On March 8 the Union held its first meeting at the home of Emory Keeley, an employee. About 40 per- sons attended the meeting. The Union held its second meeting the following night at the home of Guy Smith, another employee, with some 150 persons in attendance. On March 10 the Union met at a place known as the Sheepshed, some eight miles from Midland; and on March 14 the Union was permitted to hold a meeting at the Mid- land Community Center. The undisputed evidence shows that the respondent maintained surveillance over union membership and activity. Willard Dow, president of the respondent, testified that the respondent investigated George Morrison, an employee, when it appeared likely that he would lead the inside or unaffiliated organization then being formed.2 The following excerpt from Dow's testimony in this connection reveals the espionage activity of the respondent's police department : Q.... you said you had definite proof that he [Morrison] was C. I. 0.? A. That is right. Q. How did you have that proof? A. I got it from our police department. Q. From Mr. Post [head of the police department] ? A. I believe so. Q. And how did he get it? A. I couldn't tell you. Q. Well, you said definite proof. What kind of proof was it? A. Why, as definite proof as I could have. He told me he was. Q. Do you condemn a man on the statement of your police department, is that correct? A. No, it is pretty definite proof. Q. Well, it wasn't just oral proof, then, was it; is that right? A. It wouldn't have to be in writing to condemn him, as far as that is concerned. Q. What did your police department tell you? 2 See Section III C, infra 187930-39-vol 13--64 998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Our police department told me on such and such a date he had joined the C. I. O. Q. Did he tell you at what place? A. I don't recall. Q. You don't? A. I might be wrong in saying he said on such and such a date. He may have gotten the information from some other source. I couldn't tell you. It came from the police department. The following testimony of James Driver, the respondent's em- ployment manager, also shows the systematic fashion in which the respondent's espionage activity was conducted : Q. Did you attempt yourself to discover who were the most active C. I. O. men, or did you just leave it- A. No; I did not attempt myself. Q. Well, do you have a department whose duty that is to dis- cover things of that nature? A. There .are several of us who work on things, on troubles that come up, Mr. Starks [educational director] and myself, any one who may be put on that special detail or something like that. Q. Is it your police department function to keep their ears open for agitation in the plant? A. If they didn't I imagine I would kick them. About March 10 S. L. Starks, educational director for the respond- ent assigned to problems in industrial relations and personnel, asked Leo Gyer, a welder in the boiler shop, whether he had joined the Union, and questioned him on the number and identity of the persons who had attended the Union meeting of March 8. Gyer admitted having joined, but did not divulge the other information. About March 16 or March 17 Russel Post, head of the police department, informed Clarence Harris, a boiler-shop welder who was discharged on March 9 as "undesirable," that the respondent, had observers at the meeting of March 8, and that the respondent knew the identity of most of the employees who had signed up at that meeting. Post then produced a list of names and asked Harris to point out those who had joined the Union. Upon Harris' refusal to do so, Post told him he would have to "turn over" the Union applications which he had se- cured, if he wished to return to work. Although Harris again refused to "squeal," he was reinstated by the respondent on March 18. Either at the interview with Harris or at about the same time two other employees, Emory Keeley and Russell Gray, were unsuc- eessfully solicited by Post to identify listed names as those of em- ployees who had joined the Union. During the summer of 1937, Harry Lewis, an employee, attended meetings of a United Automobile Workers of America local in Sag- THE DOW CHEMICAL COMPANY 999 inaw because he was "interested in the labor movement." On several occasions he saw Post sitting in a car across from the headquarters of United Automobile Workers of America. Also, cars of the re- spondent "stayed behind" him as he drove his own car to these meet- ings in Saginaw. In the fall Lewis sent his children to distribute Union handbills in front of the respondent's clockroom. The watch- man stopped them and asked who their father was. He did not then succeed in finding out. Thereafter, a car belonging to the respond- ent's police department drove up to Lewis' home. The occupants of the car knocked on the door and Lewis' wife answered. They asked, and were told, who lived there. Thereupon they left. We find that the respondent by its police department and other persons in its employ has systematically engaged in espionage against the Union. The meeting of March 8 was held at night. Early the following morning Employment Manager Driver pulled the time cards of 13 employees and informed them that they were discharged because they were "undesirable." He refused to offer any further explanation. One of the 13, Dryer, was reinstated with back pay the following day, on March 10, his discharge being a "mistake." The respond- ent claims that the other 12 employees were discharged because it was rumored that they were ringleaders in a proposed sit-down strike. In Section III C below, however, we find that these and subsequent discharges were a part of the respondent's plan to thwart the Union and to discourage membership in it. The respondent adopted 'and pursued otherineans of interference, restraint, and coercion in addition to espionage and discriminatory discharges. Educational Director Starks requested Gyer, for whom apparently Dryer was at first mistaken, to surrender or to destroy his union membership card. Starks also questioned Gyer about union clues and whether Gyer thought the Union could improve working conditions, and told Gyer that the respondent had no room for agitation. On March 11 Employment Manager Driver requested Alec Thorpe, a shipping clerk who had begun forming the inside labor organiza- tion, at'that time, to talk to Guy Smith and Guy Harshman, 2 of the 12 "undesirable workmen" who had been discharged on March 9. In the meantime Smith and Harshman had been called to Post's office. There Thorpe and Post attempted to make Smith and Harsh- man admit that they had "done wrong" in joining the Union. At Post's suggestion they agreed to "try" the inside union. Thereupon the two penitents accompanied Thorpe to the service department where Thorpe addressed the assembled employees in opposition to the C. I. O. and on behalf of the inside organization. In the course of his speech he pointed to Harshman and Smith as men who had 1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD promised to combat the sit-down "menace," to abandon the Union,_ and to support the inside organization. That day Harshman and Smith were reinstated. About March 16 a number of the "undesirable workmen" went to Dow's office to discuss their discharge and Dow informed them he- saw no reason why they should not be reinstated. In the course of the interview, he questioned them concerning any grievances they might have. As we note below, questioning, employees concerning their grievances after the advent of the Union, and thereby making it appear that employees could secure redress of their grievances, was one of the techniques which the respondent used to persuade the employees that the Union was superfluous. At about the same time Harris, one of the "undesirable workmen,"? was called to the employment office by Roy Munger, a delegate for the inside organization. According to Harris, Employment Manager Driver there informed him that "we can't have the C.1. 0. in here because we are one happy family here. We have started a union of our own." Driver then instructed Harris to report to Post, head of the respondent's police department. Although Driver denied hav- ing told Harris "We have started a union of our own," he did not deny the other quoted statement attributed to him. Accordingly, we find that Driver made the undenied quoted statement. Post asked Harris, Keeley, and Henderson, included among the 12 "undesirables," whether they could belong to two labor organiza- tions at once. Post further stated to one or more of them that the respondent had nothing against the C. I. 0., but was only against its tactics, that the respondent could not afford a sit-down, and that "we have got a union here organizing in the plant here now." Post replied to Harris' statement that he already belonged to the C. I. 0. as, follows : "You will have to drop that if you work here." Post informed Henderson that he would be reinstated if he ceased his union activity. Upon Henderson's agreement so to refrain, he was returned to the pay roll on March 17. Henderson, who was a first-class 3 painter in the paint department on March 8, however, did not actually resume work until April 9, when he was assigned to billet casting in the fabrication department, work with which he was unfamiliar. Hooker, one of the 12 "unde- sirables" was also transferred from the paint department to other work. Driver attributed these transfers to the fact that the paint department "was a nest full of agitation." Shortly after April 12, 1937, John Miller, another of the 12 em- ployees discharged on March 9, was summoned to Post's office. Post R Employees of the respondent are classified . The category "first class" includes the skilled workers. THE DOW CHEMICAL COMPANY 1001 asked him many questions about his work and then told him that he could return to his former position. Miller went to the employ- ment office for a time card. There, both Driver and Post asked him what he thought of the C. I. O. Miller replied that he was with the C. I. O. "heart and soul." Driver laughed and said : "We want you to go back in and give the company union a try." Although Miller did not feel that membership in the Association was a condi- tion of reinstatement, he agreed to do as Driver requested. We find that the reinstatement of the 12 "undesirable" employees was accompanied by coercive statements and by other coercive acts on the part of Dow, Driver, Starks, and Post, all high officials of the respondent. On March 9, the day the "undesirable workmen" were discharged, Dow began delivering in the plant a series of talks to the employees. From March 9 to March 17, he went through the plant addressing various groups which were assembled for the purpose of listening to him, making substantially the same speech to each group, until he had covered the entire plant and addressed all the employees. In these talks Dow used a variety of techniques for combating and thwarting the Union. Dow first denounced "the tactics used by C. I. O. at this time in our neighboring cities" and stated that the respondent was resolved to prevent "a sit-down strike in this plant . . . if it is humanly possible." That the real object of this attack was the C. I. O. is indi- •cated by the following excerpt from Dow's testimony : Q. . . . whether or not you wanted a plant organization or a departmental organization certainly you did not want an outside organization here in March, at that time? A. We did not want sit-down tactics. Q. And you identify the C. I. O. with sit-down tactics? A. We certainly did at that time. Disparagement of and opposition to the Union, however, were not left solely to implication. Dow sought to displace the Union by en- ,couraging the formation of an inside organization. Dow testified that in a discussion which followed one of his talks he expressed oppo- sition to a union and advocated instead a departmental representation plan. Guy Lewis, an employee, testified as follows concerning Dow's talks : Q. What was the general substance of Mr. Dow's talks to the employees? A. Well, he said that they have got along without a union, an outside union in there, and they figured they could get along without one then, so they organized a union of their own to keep the C. I. O. out. 1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to Leo Gyer, "He told the boys if they wanted a union they should form their own. He. says, `No, we won't call it a union, we will call it an association' or `you should call it an association."' Arnold Lightowler, an employee, testified that Dow "said the C. I. 0. didn't know anything about our labor troubles here, that we could form a. union of our own." Edwin Hess, an employee, remembered, as one of the points made by Dow, "that he couldn't see any reason why we had to call in some outside organization to settle our grievances, that we could settle them here amongst ourselves." We find that Dow in sub- stance made these statements attributed to him by Lewis, Gyer, Lightowler, and Hess. Finally, in his talks to the employees Dow made strategic conces- sions to wean them away from the Union. Thus he promised his audiences a plant-wide wage increase. An increase was awarded about March 12, retroactively effective as of March 1. Dow also ques- tioned the assembled employees concerning their grievances. Ac- cording to Hess, Dow told the employees that "it had taken something like the C. I. 0. to wake us up." We find that the series of talks by Dow and the accompanying wage increase 4 were further steps in the respondent's program of coercion and restraint against affiliation with the Union. Supervisory employees of the respondent engaged in still another form of coercion, by interfering with the Union meeting of March 10 held at the Sheepshed. After the members had already gathered for the meeting, the Sheepshed was invaded by a large crowd which had assembled on the road by pre-arrangement. To John Miller it ap- peared that the mob was taking orders from Bill Cain, whom he identified as night foreman in the N. T. powerhouse. John by, in charge of the fabrication, foundry, alloy and die casting, and ex- perimental departments, was among the interlopers; and he was accompanied by the following salaried employees under him, who had assembled at his home before joining the crowd: Harris, assist- ant experimental engineer, Kiser, superintendent of the foundry, Rotier, foreman in the fabrication department, McLaren, chief in- spector, and Gunn, cost clerk. Alec Thorpe, one of the invading group, ascended the platform, denounced the Union, and advocated his inside organization. Thereafter, Hoy kept the platform for sometime discussing grievances with several employees in the audi- ence. Hoy testified that he and the foremen under his supervision 4National Labor Relation Board v. The Falk Corporation , 102 F ( 2d) 383 (C. C. A. 7) ; National Labor Relations Board v. American Potash & Chemical Corporation, 98 F. (2d) 488 (C. C A. 9th ), cert denied 306 U S 643. THE DOW CHEMICAL COMPANY 1003 participated in the Sheepshed incident in violation of orders from higher officials. Even if true, it would not be material, since the respondent is clearly responsible for the coercion exercised by these supervisory employees.5 Besides, Hoy's assertion is incredible in view of his admission that he reported the incident to both Driver and Post the following day, in view of the failure of the record to show that the respondent reproved by and his fellow supervisory employees, or otherwise repudiated their interference with the Union meeting, and finally in view of the other acts of interference, re- straint, and coercion engaged in by the highest officials of the re- spondent, including its president. Hoy further testified to a "rumor" that if enough men attended the Sheepshed meeting, they would "take" the west-side powerhouse the following day. The Act would be completely nullified if mere rumor were sufficient to relieve an employer of the duties imposed by the Act and to abrogate the rights of employees which it guarantees. The respondent's privilege to pro- tect its,property or to pursue its business interest does not include a privilege to interfere with a union meeting taking place off the re- spondent's property. Moreover, the record is devoid of evidence to show that the rumor had any factual basis or that it emanated from union sources. Finally, if any such rumor existed it was not taken seriously by the respondent. Thus Harold Johnson, chief operator engineer, a supervisory employee, testified that he had no fear that the powerhouse might be seized. We find that by the afore-mentioned acts, including espionage, threats, statements and acts accompanying the discharge and rein- statement of the "undesirables," talks and discussions by Dow and the accompanying wage increase, and interference with the Sheepshed meeting, the respondent has interfered with, restrained, and coerced ,itssemployees in the exercise of the 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 purpose of collective bargaining, as guaranteed in Section 7 of the Act. C. The Association The facts found above reveal the respondent's plan to thwart the Union. The record also compels the conclusion that the fostering of an inside organization was an integral part of the respondent's plan e L Swift d Co. v. National Labor Relations Board, 106 F. ( 2d) 87 (C. C. A. 10th). }Toy's testimony quoted infra at page 1008 constitutes an admission of this fact. 1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The idea of an inside organization was initiated by Dow in his series of talks between March 9 and March 17. The following pas- sage occurs in his speech : It is quite possible that at this time we need a closer contact between employees and management. Possibly you fellows feel that you should affiliate with A. F. of L. Possibly you woul'd like to join with the C. I. 0. Possibly you would like to form some kind of organization of your own. I am not here to tell you which you should do. That is up to you fellows to think out for yourselves. The 'sentiment of neutrality herein expressed is shown to be insincere by the other acts and statements of the respondent. Moreover, affilia- tion with the A. F. of L. was not in issue at the time, nor had anyone suggested formation of "some kind of organization of your own," that is, an inside organization, prior to March 9. The only labor organization on the scene at the time was the Union. Under such circumstances the respondent's mention of the "possibility" of form- ing an unaffiliated organization was sufficient to make the employees realize that the respondent wanted one formed, especially since, as facts set forth above in Section III B show, Dow went further and made his desire for an inside organization explicit. In fact, as found above, Dow, aided by Educational Director Starks, spent a full week acquainting every employee in the plant with the respondent's desire. The respondent had thus made clear to its employees that it waa determined to have an inside organization. The coercive effect of Dow's talks was, of course, intensified by the sanction behind them, namely, the respondent's power over the livelihood of its employees. Alec Thorpe undertook the task of starting the inside organization. He testified that he' first conceived the idea of forming an inside union; organized by departments, about two days after the Union's meeting of March 8, that is, a day after Dow began his series of talks. Thbrjie's activity, beginning on March 10 and lasting at least until March ,17; proceeded during working hours, with Hoy's express permission: Hoy explained that what "we all wanted, was an organization built up in a hurry to combat any outside force coming into the plant, which we had been led to expect was coming." Thorpe's first effort was the organization of his own department, which was accomplished in about half an hour. He spent the rest of that and the following day repeatt ing the process in other departments.. Thorpe's method of 'organizing consisted in addressing the employees, with the foreman's permission; upon the evils of the sit-down and upon the blessings of an inside organization. Immediately thereafter, a -vote was held on the, prefer- ence of the employees for the C. I. 0., for an inside organization, or for none. The vote was not, and could not be the expression of a free THE DOW CHEMICAL COMPANY 1005, and untrammeled choice, because of the time, place, and auspices under which the vote was conducted. Lawrence Huntley, an employee in the service station, testified, and we find, that the employees in his department favored the C. I. 0. on the first vote and that the inside local organization did not win until the third vote. It'was to the employees in this department that Thorpe exhibited Harshman and Smith as converts from the Union to Thorpe's organization. Hess, who worked in the diphenyl department, was asked by his shift fore- man or subforeman whether he wanted to vote and the following exchange took place: I says, "Sure, I will vote. Where are we going to vote?" He says, "Right here," and he pulled out a piece of paper he had in his hand and showed it to me and says, "How do you want to vote?" Well, I says, "Isn't it going to be a secret ballot?", and he says, "No." "Well, hell," I says, "according to that I will vote for the plant union." After a department voted in favor of the inside organization, it seleeted representatives to deal with the management. At the hearing Dow stated that Thorpe could claim authorship of the idea of a departmental inside organization if he wished, but Thorpe's organization "sounded good and we got behind it and pushed it." Beginning with March 11, Dow openly advocated the Thorpe organization in his series of talks to the men, and a committee of company officials designated by the respondent conferred with various Thorpe departmental committees with respect to wages, hours, and working conditions. Dow also sent Thorpe the following letter : MARCH 11, 1937., ,DEAR MR. THoRrE : I have been advised that you have joined with a number of the other employees in The Dow Chemical Company and are organizing an Employees Association. I was somewhat surprised when I heard this this morning, because, although I appreciated the fact there were many men who wanted to do this, I was not aware of the fact that the organiza- tion had already started. It is indeed a pleasure to know that you have made the• prog- ress you have and I am writing this letter to let you know'that the idea of the organization is entirely in line with the policies of The Dow Chemical Company and has the approval of the writer. I can assure you also that if the Management of the Company can be of any assistance to you in any way, we-would be glad to have you advise us. With kindest personal regards and best wishes for the success of your organization-7 • 7 Respondent Exhibit No 5 1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thorpe made use of this letter in pursuing his organizational ac- tivity , as appears below. Since foremen complained that Thorpe's department -by-depart- ment canvass interfered unduly with the operation of the plant, and since the objective was "an organization built up in a hurry . to - combat any outside force," a , plant-wide meeting was arranged on March 11 and held that evening at the Community Center. At' this meeting Thorpe again denounced sit-downs , urged the men to or- ganize departmental units , and announced that he had the written support of Dow . Upon completion of his address , he introduced Dow, who had come at Thorpe 's invitation which had been trans- mitted to Dow through Hoy. In introducing Dow, Thorpe requested that Dow compare an inside organization with an outside organiza- tion. Dow spoke in favor of Thorpe's organization . He was fol- lowed by by. Before the meeting adjourned the delegates, who had been designated as the result of Thorpe 's departmental canvass, gathered on the platform to plan a permanent organization. The delegates then adjourned until the following night. George Mor- rison , who was active in the Thorpe movement at this time, con- -sidered the Community Center meeting to be the organization meet- ing of the Association. The delegates selected pursuant to Thorpe 's activity convened on March 12 for the purpose of establishing the labor organization. Thorpe assumed the chair , and was then elected temporary chair- man. Thorpe's proposals , including a loose informal organization with emphasis on departmental units , were rejected by the delegates. He was unable to maintain order. At the hearing Thorpe attributed his failure to the delegates ' conviction that he was too close to the management . Realizing that the organization was veering away from himself and from his plan, Thorpe called upon Morrison to restore order and to help conduct the meeting. Pursuant to Mor- rison's suggestion, committees on membership , on constitution and bylaws, as well as on other subjects , were appointed and instructed to report at the following meeting. It was also agreed that at this meeting, to be held on Wednesday , March 17, the delegates would elect a permanent chairman . It is clear that by March 12 , the Asso- ciation had begun to take form. Thorpe reported his progress with the inside organization to Driver, 'Starks, and Post , and, at least Starks and Post kept Dow informed. In this connection Dow testified : "I get most of my information like that from the police department ." On March 13 Thorpe reported the proceedings of the night before to by . Since it was evident that Thorpe was losing control to Morrison , Thorpe requested Hoy to con- fer with Morrison in order to determine whether he was loyal to the THE DOW CHEMICAL COMPANY 1007 idea of an inside organization. In the conference which followed Hoy put several questions to Morrison, one of which was whether he would be willing, in Hoy's words, to study "some of the organizations around through the country that had company unions where organi- zations of the description that they were trying to get up, which I didn't know exactly what they were trying to get up." Hoy in- formed Morrison that his expenses would be taken care of. Thorpe's whole behavior, as shown by the record, reveals domina- tion by the respondent of the incipient Association. The patent ob- ject of thus examining Morrison was to determine whether he should be permitted to lead the new organization, and if so, to continue the respondent's domination through him. Within a day or two Dow also learned of Morrison's supplanting Thorpe. The respondent hastened to verify a suspicion that Mor- rison shared a strong preference for the C. I. 0. According to Dow, "We attempted to check up on that a little more . . . I think we must have made some investigation." The respondent's police department discovered that Morrison had paid $2.00 to the 'C. I. 0. Upon the strength of this information, Dow contended that it was his "respon- sibility to step in." Thereupon, on March 17 Morrison was summoned to a conference with Dow, Starks, and Post. In reply to a direct question at this conference, Morrison denied membership in the C. I. 0. The conferees then discussed at some length the likelihood of Morrison leading the inside organization. In the course of the interview, Dow expressed a preference for a depart- mentalized association. Morrison argued for centralization. Ac- cording to Dow, "We finally pinned him down and said : `Isn't it a fact, Mr. Morrison, you paid $2.00 to the C. I. 0. representative?' 11 After "considerable argument" Morrison admitted the payment, but still disclaimed membership. The respondent's officials, dissatisfied with this explanation, attempted to dissuade him from leading an or- ganization in the company when he had C. I. 0. leanings. Thus Starks suggested that "his health wouldn't be very good" if the men discovered he was "traveling under false colors." Morrison agreed to retire quietly from the field. By removing Morrison, the respondent eliminated any danger of the incipient Association being taken over by the Union. At the March 17 meeting the Association developed along the lines laid down at the previous meeting. Pursuant to his promise to Dow, Morrison did not appear. After Thorpe announced his resignation to the delegates, John Van Meter, a plant mechanic employed by the respondent since February 1928, walked to the front of the audi- torium and called for the selection of a temporary chairman and sec- retary and offered to preside over the election. Van Meter was chosen 1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD temporary chairman. This is the first meeting for which the Asso- ciation had minutes. Following the election , the committees appointed at the March 12 meeting reported on the various matters which had been assigned to them, including constitution and bylaws , member- ship and membership cards, and a name for the organization. After discussion ' the committees were instructed to report further at the next meeting . The draft constitution and bylaws presented to the delegates 'on March 17 ".,set up an organization with general officers, executive council , convention of delegates , departmental representa- tives, and ordinary members. The proposed bylaws included pro- visions with respect to wages, hours, and working conditions. At subsequent meetings the Association completed its formal organ- ization . On March 24 the Association chose its present name; and discussed a form of membership card . On March 31 the Association refused to abandon its centralized character , although requested to do so by Dow. This incident is discussed below. Thereafter , the Asso- ciation defeated a motion to confer with Dow on the Association's ,constitution , and engaged an attorney , recommended by a member of the Association 's board of directors as one who "had no connection with the Dow," to redraft its constitution and bylaws . Adopting a suggestion made as early as March 17, the Association incorporated 0 but maintained the set-up provided for in the original draft constitu- tion and bylaws , as hereinabove described ., In contradistinction to Thorpe's plan, control over the handling of grievances was centralized in the board of directors of the Association. Clearly, the Association represents the culmination of the Thorpe movement. The Association progressed without interruption from the meeting of March 11 onward , receiving its impetus from the in- tensive campaign on March 10 and March 11. Meetings followed each other in smooth succession . Committees reporting at one meeting were instructed to function in the interim and to report back to the next meeting. Moreover , the final form of the Association represented an evolu- tionary development . Thus the departmental set-up envisioned by Thorpe was not abandoned : the delegates represented the depart- ments, each of which-also selected a unit council . 10 Centralization had been contemplated at least as early as the March 12 meeting, presided over by Thorpe. Thorpe testified as follows : Q. Now do you know of your own knowledge whether these delegates took steps to proceed further with the type of organiza- tion that you had been working for? A. Well, I know that the organization has continued. ' Board Exhibit No. 18. o Intervenor Exhibit No. 2. 10 Intervenor Exhibit No. 3. THE DOW CHEMICAL 'COMPANY 1009 We can see no abrupt jump from one organizational pattern to an- other radically different. The inside organization changed some- what, but did not thereby lose its identity or continuity. Consideration of the Association's personnel leads to the same con- clusion. It was Thorpe who invoked the aid of Morrison on March 12. Thorpe convened the next meeting, at which Van Meter assumed the chair and was elected chairman. Thorpe is a member of the Association. Van Meter had been a member of the committee on constitution and bylaws. He and Don Ross, also elected on March 17, have remained chairman and secretary, respectively, ever since. Several employees who became Association directors were originally active in the Thorpe movement. Ross testified that the. Asso- ciation delegates were "an outgrowth of the Thorpe list," and that the departmental representatives selected as the result of Thorpe's activity were the ones who, in the main, negotiated with the respond- ent on behalf of their departments and who also, in the main, crystal- lized into the group that attended the March meetings." The dele- gates and crew representatives selected in connection with Thorpe's activity continued to act as such for the Association at least until the middle of April, without further election." Finally, the Association embodied the objective which motivated the Thorpe movement, opposition to the Union. Thus Hoy testified he agreed that he and Thorpe ought to "get out of this," since "We were well enough organized iii the plant to take care of any outside dis- turbance": Q. After you had the organization started to protect the plant, as you call it, and keep the C. I. 0. out you decided that you had better get out of it and let it run itself ? A. That is the idea. - The Association introduced into evidence the names of delegates chosen in the con- firmatory election of May 1937 ( Intervenor Exhibit No. 4). The respondent introduced into evidence memoranda of negotiations between the management and named departmental representatives ( Respondent Exhibit No. 27 ). Since we do not have complete lists, we cannot tell precisely what Thorpe representatives continued to hold office in the completed Association . However, a comparison of these two exhibits corroborates the conclusion that a large number of delegates functioning in May were first selected in connection with Thorpe's activity. as Ross testified that a delegate election occurred in the middle of April . However, he could produce no record of any such election , the minutes mentioning only an election of officers during April and not an election of delegates . At one point Ross testified he did not know whether there was any such election prior to May and that the May election ( Inter- venor Exhibit No. 4) was only confirmatory of a previous election Roland Chase testified that he became a crew representative in March and remained a crew representative throughout the year without further election . Allen Holmes testified that there were no elections for new delegates after March 29 There is thus much ground tor believing that the delegates and representatives selected during the Thorpe period served as delegates and as representatives , respectively , of the Association during the year 1937 without thither election 1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD An unbroken chain links the Association to the Thorpe activity. We find that the Association stemmed from and was the matured form of the organization initiated by Thorpe. We have already pointed out how the respondent exercised coercion against affiliation with the Union, and actively assisted and dominated the Thorpe movement. The respondent thus dominated the formation of the Association and contributed support thereto. The fundamental character of the established Association bears the impress of its employer origin. The charter and bylaws make no pro- vision for meetings of the members or for instructing the officers, delegates , and representatives of the Association of their wishes." Those in control of the Association may even execute a binding con- tract without consulting the will of their constituents.14 Although police employees were not admitted to membership on the asserted ground that "if we ever got down to where we really needed their support they would be on the other side," nevertheless, we cannot infer therefrom that the Association was independent, in view of the other facts set forth in this section. Moreover the Associa- tion admitted to membership hourly paid foremen and subforemen.. Thus William Stevenson was a member of the Association although he was foreman in the paint department, reporting to the superintendent thereof, and having in,,his charge a subforeman who in turn gave orders to the employees. The evidence shows that foremen and sub- foremen were called upon by the respondent to report on the work of employees under them and to recommend for or against discharge. There can be no doubt that these foremen and subforemen repre- sented management, and as such were "on the other side." The respondent's ouster of Morrison to prevent the Association from falling under C. I. 0. control further bears on the nature of the Association. This act of interference demonstrates that the respond- ent dominated the Association. The ouster also necessarily' affected the leadership and the objective of the Association. Thus the respond- ent by removing Morrison left the field clear for Van Meter and Ross who were opposed to the C. I. 0., and thereafter the Association. pursued a policy hostile to the Union (Section III D). Moreover, the record does not convince us that the leadership of the Association was independent. Following the handling of a grievance against a foreman, the convention instructed the directors in future cases, not to agree to compromises until these were first submitted to the con- vention. True it is, that some delegates like Hess, who helped secure adoption of this instruction and who was later released by the respond- 18 Cf National Labor Relations Board v.' Pennsylvania Greyhound Lines, Inc., et at., 803z U. S 261. 11 Intervenor Exhibit No 2 and No 3 r'° THE DOW CHEMICAL COMPANY 1011 ept,,w,ere militant. Nevertheless, such militancy does not convince us that the leadership of the Association was independent, since Hess reigned from the Association and became affiliated with the Union because he was convinced that "we couldn't get anywhere with this company union on grievances or different things like that." 15 There can be no doubt that the respondent's ouster of Morrison and the influ- ence on the nature of the Association's leadership consequent thereon were a flagrant interference with, and prevention of, the selection by the employees of representatives of their own choosing. , The respondent continued to lend support to the Association. The respondent furnished the Association with lists of new em- ployees and thereby facilitated the Association's solicitation of mem- berships. The convention of delegates met in the plant auditorium.- Indeed the draft constitution provided that meetings of the delegates should be held in the Dow Auditorium "providing we gain permis- sion of the Dow Company," 17 which was, in fact, obtained.18 This arrangement continued until April 14 when the delegates, realizing its embarrassing implications, resolved to meet elsewhere. The dele- gates who attended these meetings during working hours suffered no loss of pay. Ross transacted Association business during work- ing hours with the foreman's permission and without checking out. While Ross asserted that he performed work for the company after the,usual working hours, he did not know whether the foreman kept a record of the time he owed the respondent. Ross also thought that other delegates "may have" taken care of the Association's affairs during working hours.19 A request by the Union for similar favors would have been futile, since it was the victim of the re- spondent's hostility and coercion. Thus in March when representa- tives of the Union tried to distribute literature in front of the plant, 15 Of course , militancy could not be completely absent from so large an organization. Hess was undoubtedly militant and so must some others have been . In fact , Hess became secretary of the Union and some other delegates , suspected of C I. O. sympathies, were removed - from control over negotiations with the respondent with respect to lay-offs. (Infra, pages 1084-5.) On one occasion there was some talk of striking to enforce a certain demand upon the respondent . The rules of the Association do not provide for calling or for maintaining strikes, however , and the only action taken on this demand was to confer with-' the respondent and to make a finding that the demand was for a condition of work already obtaining. 16 Cf, National Labor Relations Board v . Staekpole Carbon Company , 105 F. ( 2d) 167 C. C. A. 3d). 17 Board Exhibit No. 18 (Article III). 16 Paul Evans, in charge of the respondent ' s auditorium , testified he did not know the purpose of the meetings of the employees . The activity of the police department , Thorpe's. reports, and the Morrison incident make it clear that Dow, Starks , Driver, Post, and Hoy knew , about the March meetings . Dow addressed the Association delegates in the auditorium on March 31. Ross testified that formation of the Association was no secret and that he kept two foremen posted on the progress of the meetings in March. 1e The agreement between the respondent and the Association, executed on June 12, 1937 , provides "that in general the Association ' s activities shall he carried on outside of working hours , but where the Association 's activity must be carried on during working hours, it will be done through cooperation with the plant superintendent ." ( Respondent Exhibit No. 8, Article I, Section 2 ) 1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respondent's police "pushed them out off the sidewalk and over into the road," the sidewalk apparently being company property. By granting the Association favors which the Union could not'ob- tain, the respondent further made plain to the employees that the respondent's preference for the former was not confined to the realm of intellectual opinion. The respondent thereby served notice that the Association was its choice, to be encouraged by material support. Furthermore, that support included solicitation and other coercive measures by the respondent's supervisory employees to enroll em- ployee`s into the Association. The handling of the "undesirable workmen," hereinabove discussed, is relevant in this connection. The experience of Russell Gray, an employee, shortly after March 15 is a further example. Educational Director Starks asked Gray whether he was a member of the Union, told him there was going to be a company union, and asked him to join. Gray, a member of the Union, stated he would. Coercive solicitation is established by the following testimony of Barkman with respect to a speech delivered by William Stevenson, foreman, to a group of 25 or 30 employees during the noon hour of February 3 or February 4, 1938: He [Stevenson] merely stated that he understood from the dele- gates the boys were kind of slow in getting their cards and also stated that the delegates wasn't able to secure cards until the men had paid for them ... And he closed his little speech with' the statement we didn't know what was going to happen. He said, "We don't know what is going to happen but it might be well for you boys to protect yourself by getting your M. C. W. A. [Association] cards." The following circumstances accentuate the coercive character of Stevenson's statement. At the time of this talk, the respondent was engaged in reducing crews, and the Association which had a voice in the selection of those to be laid off followed the policy of protecting only loyal members. On March 1, 1938, a meeting of some of the employees was arranged to be held in the stockroom after 5: 00 o'clock. At this meeting, these employees were to decide whether or not they wished to remain with the Association. Prior to the meeting Roy Smith, superintendent' of the stockroom department, told Elwood Smith, an Association repre- sentative from this department, that he had been asked by Keel, an Association delegate, to give the "boys" a talking to, but that he had refused because this was unlawful. Roy Smith further told Elwood Smith to attend the meeting and to renew his membership in the Association. Roy Smith also asked Elwood Smith to persuade two other employees to join, stating that he, Roy Smith, would "have a THE DOW CHEMICAL COMPANY 1013 talk with them and it won't be very hard for you fellows to sign them up." Finally, by continued discrimination in regard to tenure of employ- ment, as we find below in Section III D, the respondent encouraged membership in the Association. The evidence concerning the agreement between the respondent and the Association reveals an eagerness on the respondent's part to grant recognition to the Association. Negotiations looking toward the agree- ment began in May 1937 before the Association produced any evidence that it represented a majority. During the negotiations there was some discussion as to how proof of majority could be supplied; and the respondent informed the Association that evidence would have to be presented before the respondent signed. About June 2 the Asso- ciation filed with the Board a petition for certification'20 which peti- tion included a sworn affidavit that the Association claimed to represent 2,318 members. Upon the basis of this petition, the only proof of majority offered to the respondent, an agreement recognizing the Association as exclusive representative was'signed June 12, 1937. If a majority of the employees enrolled in the Association prior to the negotiations and prior to execution of the agreement, the Asso- ciation was still not "designated or selected for the purposes of col- lective bargaining" by a majority, because membership in the Asso- ciation was procured through the respondent's coercion. It is in- congruous to assert that the designation of a company-dominated union represents a free choice. Since the exclusive representation agreement is with the company-dominated Association in which mem- bership was coerced by the respondent, it is clear that such agreement represents the fruit of the respondent's unfair labor practices, and a device to perpetuate their effects. Furthermore, as we find below in Section III D, the agreement was a convenient cover under which to continue the respondent's discrimination against the Union. The respondent stresses its claim that while Dow favored "small departmental groups" the Association evolved into "a plant-wide union." Even if true, the claim is irrelevant in view of the decisive fact that the respondent brought the Association into being. If the respondent mistook the variety, it nevertheless planted and cultivated the fruit. Moreover, it is not true that the respondent was exclusively inter- ested in, and worked for, only one form of organization. Starks testified as follows in connection with the conferences between the respondent and departmental committees, hereinabove mentioned : . .. whatever the embryonic stage of the M. C. W. A. or any- thing else might have been in, it was immaterial to the mana ge- zo Intervenor Exhibit No. 5. 187930-39-vol. 13-65 1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment at that time. We were concerned with settling what griev- ances might be prevalent and calming the storm as quickly as pos- sible, and we were not concerned as to what might develop in the future. Although Dow preferred the departmental groups," he was not un- alterably opposed to a more coherent form. In the letter dated March 11, he referred with approval to Thorpe's forming "an Employees Association" and to "the fact that the organization had already started." 22 Dow himself addressed the plant-wide gathering at the Community Center on March 11. On March 19 Dow told a meeting of supervisory employees that he favored the departmental groups as "the most expedient way in which to really get action and satisfaction for the department heads," but that he was not standing in the way of the employees if they should later wish to develop a labor organiza- tion of their own. What the respondent did fear was a form of organization that would facilitate seizure of control by the Union. Upon receiving through the mails a copy of the Association's draft constitution, Dow "bawled" Van Meter out, and told the delegates at their meeting of March 31 that "We were going to have a. radical organization and someone was going to cause a lot of trouble." 23 Ross testified'that "it would prob- ably be funny" if Dow did not mention the C. I. O. in this discussion. A number of delegates spoke in opposition to the departmental rep- resentation plan, and Dow withdrew from the meeting as "grace- fully" as he could. There is reason to believe that Dow was given assurances that the Association would not fall into the hands of the C. I. O. According to Ross, Van Meter "might have" assured Dow of the Association's strenuous opposition to the C. I. O. during the meeting, since many persons made similar statements "in those days." Van Meter testified as follows with respect to this matter : Q. I ask you, don't you recall Mr. Dow telling you and the group that by forming this organization you were playing into the hands of the C. I. 0.? A. Not at this meeting. Q. Did he say it at another time, another meeting? 2'Respondent Exhibit No 6. 22 Respondent Exhibit No. 5. 22 That Dow 's attitude toward the Association was one of proprietorship is evidenced by what he told the delegates he had told Van Meter According to Ross "he told him they just didn't want any such thing in the plant , it was getting away from the idea the company had in mind" Dow's attitude is further revealed by his own v. rsion of some of the statements he made to Van Meter : "That I thought that these fellows right in our own plant were taking the bit in their teeth a whole lot more than they had a right to and he didn't see why if they decided among themselves they wanted to have an organization that he hadn't come to us and talked to us about it . . . I didn't see why they wanted to stir up additional commotion again when we thought the whole situation was being handled very nicely by this individual group representation." THE DOW CHEMICAL COMPANY 1015 A. I don't know as he used those words. The inference might be that way, I don't know. Q. Do you ever recall stating to Mr. Dow words to this effect- I am not quoting you exactly-"Mr. Dow, the C. I. O. will only get in here over our dead body"? A. Not exactly like that. Q. Did you say words to that effect? Was that the intent of your statement? A. No, that wasn't the intent of my statement. Q. Did you state something like that? A. Not so severe. Van Meter testified further that after the beginning of March he openly held anti-C. I. O. views and that he spoke to Dow about the C. I. O. Although Dow claims he left the March 31 meeting still convinced that the delegates were wrong, he took no steps to undo the support which had brought the Association into existence. In fact, he became reconciled to the form of the Association. A few days after the meeting, Assistant General Manager Beutel "told Mr. Dow he had better get off his high horse and work with these fellows." Beutel "urged him to work with this group because from the information I had, they were pretty well organized and that they would be a factor to consider." Dow accepted this advice. The respondent's exceptions also cite the constitutional guarantee of free speech in connection with Dow's talks, and in connection with his letter of March 15. The respondent misapprehends the nature of the guarantee. The First Amendment to the United States Constitution does not preclude a fact-finding body from making an evidentiary use of speech any more than the Fifth Amendment pro- hibits it from weighing "authority or power," "relation or oppor- tunity," 24 inclination, motive, or non-verbal conduct. Words like other behavior may be the means through which the violation is ac- complished. Whether or not an employer has engaged in interfer- ence, restraint, coercion, domination, and support is a question of fact,25 to be resolved-pursuant to Section 10 (c) and in accord with approved practice-by an evaluation of "all the testimony." In Virginian By. Co. v. System Federation, 2r the District Court found that a pamphlet issued by the president of the company, setting forth the alleged disadvantages of membership in an A. F. of L. union and the alleged advantages of membership in a local unaffil- iated union, was- "Temas d• New Orleans Railroad Co. v. Brotherhood of Railway Clerks, 281 U. S. 548, 568. 25 National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., 303 U. S. 261 (1938). 2 11 F. Supp. 621, 84 F. (2d) 641 (C. C. A. 4th), 300 U. S. 515. 1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD circulated to "use the authority and power" of the Railway to "induce action" by the members of the craft "in derogation of what the statute calls `self-organization."' That it probably and naturally had the intended effect on many of those to whom it was delivered is no more than a reasonable inference to be drawn from the situation and power of the author over those to whom it was addressed. The Circuit Court of Appeals, in affirming condemnation of the statement as in violation of the Railway Labor Act, declared : 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 .. . Subsequently, the Supreme Court affirmed the order in full without any criticism or restriction of the language used by the Courts below IT In National Labor Relations Board v. The Falk Corporation,"' the Circuit Court of Appeals in enforcing an order of this Board, used the following language, peculiarly applicable to this case : The position of the employer, where, as here, there is present, genuine and sincere respect and regard, carries such weight and influence that his words may be coercive when they would not be so if the relation of master and servant did not exist. A review of the facts found above reveals the full significance of the respondent's relationship to the Association. The respondent conceived an inside organization as a buffer to the union drive. The Association organized on company time and on company property with the full approval and assistance of the respondent. The re- spondent encouraged membership therein by other direct aid as well as by its measures to thwart the Union, including espionage, threats, coercive statements, solicitation, balloting, interference with the Sheep- shed meeting, discriminatory discharges, and strategically timed con- cessions. The respondent interfered with the Association to make certain that it would not go "radical," and removed a leader suspected of C. I. 0. sympathies. The Association emerged as the embodiment of the respondent's conception, a device with which to counteract the Union. The respondent then executed an agreement to sanctify the Association and to continue the pursuit of its unlawful purpose. 2 Cf National Labor Relations Board V Fan8teel Metallurgical Corporation , 306 U. S. 240 (1939) ; Vsrgenia Ferry Corporation v. National Labor Relations Board, 101 F. (2d) 103 (C. C. A 4t1i) ; Clover Fork Coal Co. V. National Labor Relations Board, 97 F. (2d) (C C. A 6th). 321 ' ax 102 F. ( 2d) 383 (C. C. A. 7th) ( 1939). THE DOW CHEMICAL COMPANY 1017 We find that the respondent has dominated and interfered with the formation and administration of the Association, and has contributed support to it; that by its aforesaid acts, the respondent has interfered with; restrained, and coerced its employees in the exercise of the rights guaranteed employees by Section 7. D. T he discharges The complaint alleged that at various times between March 1937 and February 1938, the respondent discouraged membership in the Union, by discrimination in regard to the hire and tenure of employ- ment of 46 named persons. At the hearing the complaint as to 10 of these persons was dismissed without prejudice. The 36 cases left for our determination may be conveniently classified as follows : a group of 17 persons whose cases we shall discuss in chronological order and a group of 19 persons as to whom the respondent interposed a com- mon defense. 1. Discharges occurring between March and November 1937 Delos Wood, a boilermaker, was hired on November 9, 1933, laid off on March 5, 1937, and reinstated on April 22, 1937. The complaint alleges that the lay-off was discriminatory. The Trial Examiner so found and the respondent takes exception thereto. During 1934 Wood, as president of an A. F. of L. local which was then attempting to organize the boilermakers, helpers, and welders at the respondent's plant, conferred with a committee of the manage- ment, including Dow, Driver, and W. H. Jones, superintendent of the boiler shop. On March 5, 1937, Jones informed Wood that he was being released because of slackened work; that he was selected because he was youngest and because he lived outside Midland. His employment record ascribes the lay-off to "shortening crews." Jones testified that he decided to release Wood after consultation with the foreman, and that Wood was one of seven in the boiler shop laid off at this time. Wood, who was rated as a first-class boilermaker had the least sen- iority among first- and second-class boilermakers. But no other first-class boilermaker and no second-class boilermakers were released. Wood was married. Other employees in the boiler shop who were single, lived outside Midland, and had less seniority than Wood, were retained. Jones denied that Wood's A. F. of -L. affiliation induced his release and noted that an employee who participated with Wood and others in the 1934 conferences was not released on March 5. After his lay-off Wood spoke to Driver several times' to determine the reason and was given about the same explanation offered by 1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jones. Finally, early in April, Wood secured an interview with 'Dow, in which Dow admitted that Wood was laid off because he had be- longed to the A. F. of L.t and that Dow did not want him around "to have a chance to get anything else started." When Wood questioned Dow further, his only answer was that Wood had better seek work in Saginaw, where Wood lived. Thereafter, Wood saw Driver again, and told him what Dow had said. Driver stated that "if that was the case" Wood "was wasting" time in "coming around." Within a day or two Wood was reinstated to his former position without back pay. The employment record is marked "overlook" opposite the March 5 lay-off entry. Driver testified that Wood's seniority and other rights were restored because Wood thought he was improperly released. The respondent was intent on defeating the union drive which was just getting under way at the time of Wood's release. Dow's statement to Wood leaves no doubt that Wood was singled out be- cause, as a former active president of an affiliated labor organization trying to deal with the respondent, he was a potential protagonist of the Union. In fact he did join the Union at the March 8 meeting. We find that the crew reduction was a convenient pretext for elimi- nating Wood; and that the respondent discriminated in regard to his tenure of employment by releasing him on March 5, 1937. At the time of his lay-off Wood was receiving 88 cents an hour for a 39-hour week, and he would have received 98 cents an hour, effec- tive March 1, because of the plant-wide increase. He earned about $25 during the lay-off period. Louis Kartz, a first-class welder in the boiler shop, was first hired on December 20, 1926, and worked on and off until June 4, 1932. He worked from May 29, 1933, until March 5, 1937, and was rehired on May 19, 1937. The complaint alleges that the March 5 lay-off was discriminatory. Kartz did not take the witness stand. There was testimony to the effect that he joined the A. F. of L. in 1934, and that he joined the Union on March 8, 1937, 3 days after his lay-off. Kartz had greater seniority than several persons retained. The employment record of Kartz, which contains three entries on different dates to the effect that he was a good workman, notes as the, reason. for his release "-shortening up on, crew." Jones. testified that he selected Kartz because Kartz was slowing up considerably and seemed dissatisfied with his job. Upon laying Kartz off, he told Kartz to keep in touch with him. Jones procured a job for Kartz with a contractor working within the plant, and then rehired Kartz when he completed this assignment. The Trial Examiner recommended dismissal of the complaint as to Kartz. The Union did not take specific exception thereto. THE DOW CHEMICAL COMPANY 1019 We find that the record does not support the allegations of the complaint with respect to Kartz. Arvin Roe, a machinist helper, was hired on October 5, 1936, and released on March 5, 1937. The complaint alleges that the discharge was discriminatory. The Union takes exception to the recommenda- tion of the Trial Examiner that the complaint be dismissed as to Roe. Roe had no record of union membership or activity prior to his release. He customarily rode to and from work with Burton Mc- Nett, one of the "undesirable workmen" discharged on March 9. Ed Athee, a company policeman, told Roe that he thought that Roe was discharged because he rode with McNett, a C. I. O. man. Roe's employment record notes "Reducing crew" as the reason for the discharges. The respondent determined to lay off four employees from the machine shop. Murphy, Roe's foreman, testified that he selected Roe because Roe, an apprentice, did not show the requisite aptitude for the position of first-class machinist, although he was a good, conscientious workman, steady and willing. Murphy further testified he did not know of Roe's association with McNett at the time of the lay-off. We find that the record does not support the allegations of the complaint with respect to Roe. Arthur Henderson, Clarence Harris, Emory Keeley, John Miller, and Burton McNett were discharged on the morning of March 9, 1937, following their attendance at the organization meeting of the Union, held the night before at the home of Keeley.29 The complaint alleges that the discharges were discriminatory. The Trial Examiner so found. The respondent takes exception thereto, asserting that these employees were discharged because the respondent believed that they were attempting to incite a sit-down. Driver testified that without close control over the chemical proc- esses at the respondent's plant, serious damage to property might occur and the safety of the community be endangered. He further testified that following a sit-down strike which occurred in Flint, employees, businessmen, and the management were alarmed over the prospect of a sit-down at Midland. Driver claims that before March 8 the respondent's police depart- ment and many persons not employed by the respondent reported "this fellow, that fellow, this fellow, that fellow" as "bad." By a "bad" fellow Driver understood one who had threatened to blow up a still, or to "tie this thing up," or to force an entrance, or to do "something that would be of a damaging nature." The alleged re- 29The'employees discharged on March 9 as "undesirable" are hereinafter referred to as the Keeley group. 1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ports were also to the effect that "I have heard that fellow state that if he had an opportunity he would stir that plant up for you in great shape" and "that fellow was going to cause trouble, he was going to be a leader, they were coming into our plant and they were going to incite a sit-down strike." Driver further claims that "along about the first of March, the indications from everyone seemed to point toward a certain group of men, and the evidence, in my estimation, kept growing, and it always simmered down on just a certain number of men; and on the 8th of March it seemed to be unusually great." Driver asserts that there appeared to be 12 ringleaders, that on the night of March 8 he re- ceived anonymous telephone calls warning of a sit-down to take place the next morning, that he became "unduly alarmed", and that be- tween 5: 30 and 6: 00 a. in. he procured Dow's consent to the discharge of the 12 "ringleaders." 30 According to Driver the discharge was pursuant to his recommendation that "we release these men" And get them out of the plant, so that if trouble does happen they will not be in the plant to lead or to start something, and then later after this atmosphere cools down and our men get back to normal and our people in town get to thinking sanely again, we can put them back to work. It may well be that the respondent and the community were appre- hensive of the effects of a sit-down, should one occur. But we cannot credit Driver's testimony to the effect that he and others believed that a sit-down was imminent on March 9. Thus the record fails to show preparations for, or any manifestations of, a prospective sit-down.31 Since the respondent's police department was engaged in ferreting out proof of "agitation," it is significant that the respondent could not produce any evidence that a sit-down was about to take place, or that one was even being planned. Whatever evidence there is, is to the contrary. Thus, although Henderson, one of the Keeley group, testified that a sit-down was talked about at the March 8 meeting, Keeley testified that none was being planned at the time of the dis- charge; 32 and Miller testified that at the March 14 meeting the or- ganizer advocated the sit-down only as a last resort, to be invoked if the respondent refused to sign an agreement after the Union secured a majority. 80 In fact 13 were discharged , one by "mistake." 1 Howard Asbury, captain in the Michigan National Guard , a witness for the respondent, testified on cross-examination that he knew of no overt act occurring in Midland that looked like a sit-down or the beginning of one. 12 Driver testified that on the evening of March 8 he received anonymous calls as to the occurrence but not as to the place of the Union meeting. However , Post did not deny the statement attributed to him to the effect that he had observers at this meeting. THE DOW CHEMICAL COMPANY 1021 The following testimony of Harold Johnson, chief operator engi- neer, a supervisory employee of the respondent, does not bear out the claim of a belief by the respondent that a sit-down strike was imminent : Q.... Do you recall in the early part of March there was quite a bit of union activity? A. The early part of March? Q. 1937. A. I recall-you mean the trouble with the clockroom? I heard about it. Q. Do you recall anything else besides that? A. Just in Flint. Of course everybody knew about that. Q. Did you have any fear your power house might be taken over by some outsiders? A. No, I didn't pay much attention. Q. You didn't pay much attention to any theory of that kind, did you? A. I didn't think we had a C. I. O. man in the organization, the power house. Further, the record contains no proof that the employees dis- charged as "undesirable" were planning a sit-down. We have al- ready set forth the "evidence" upon which Driver claims he relied. Driver himself characterized it as "just rumors, and hearsay; and everybody telling information." Another reason why we cannot credit Driver's testimony, that he discharged these persons because they were believed to be ringleaders in a planned sit-down, is that it is too vague and uncertain. All we are told is that there was a report against "this fellow" or against "that fellow," and that the indications "simmered" down to those dis- charged. We are not told what or how many reports were submitted with respect to specified persons. We are given only the vaguest notion as to the content of the reports. Besides, even assuming that one or more members of the Keeley group was accused of being, or was, "a leader," it would not indicate that the respondent was acting against them as sit-down ringleaders. The respondent claims to have relied on many reports, of which only some were by anonymous persons. Not one witness was called to testify that he submitted any of the alleged reports to the re- spondent. Nor was anyone called to testify that he heard or saw any of the "undesirable workmen" make threatening statements or engage in other acts, showing a plan to cause a sit-down. Although Driver testified that police employees of the respondent submitted a number of these reports, not one was called to give any evidence 1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which might tend to show that the discharged employees were plan- ning a sit-down. Moreover, the credible evidence proves that the discharge of this group was motivated by the respondent 's desire to crush the Union before it had emerged from its formative stage. The respondent was engaged in espionage . The Keeley group were discharged immedi• ately following their attendance at the organization meeting of the Union. That same day the coercive talks and other coercive acts by the respondent were launched , including the formation of a company- dominated union. It will be recalled that Dryer was discharged by "mistake" along with the other "undesirable" employees, and that he was thought to be Gyer. We have already described the coercive examination to which Starks subjected Gyer upon discovering the mistake. Starks' demand that Gyer abandon the Union also reveals the true motive for the discharge of the group of which Gyer was really a member. The unlawful motive is further revealed by the method of rein- statement, already described, of members of the Keeley group. Thus the respondent sought to have Harshman, Smith, Harris, Keeley, Henderson, and Miller abandon the Union and embrace the inside organization, in connection with their reinstatement. Again, Hen- derson , LeRue, and Hooker, as we find below , were transferred t6 another department upon reinstatement to discourage union activity. Thorpe's testimony of the conversation between himself, Driver, and Post, prior to the conversation between himself, Post, Harshman, and Smith , affords additional proof of the respondent 's unlawful motive for discharging the Keeley group of employees. Driver told Thorpe that a couple of employees were "out of service" because of C. I. 0. activity and asked Thorpe for his recommendation. Thorpe advised that they be kept out until the "strike fever" had subsided ; that is, until the "danger of a sit-down" had passed, and Q. Until you had your organization perfected too? A. That would follow , of course. Thorpe also testified to certain remarks he made in this connec- tion to the audience at the Community Center meeting addressed by Dow and Hoy. Thorpe informed the gathering that, pursuant to Driver's request for advice, he recommended suspending the pay of the employees who were in favor of the C. I. 0., and sending them home until there was a solid union at the plant, and that, upon discovery that some employees accused of C. I. 0. activity were his friends and neighbors who had families to support , he asked permission to talk to them to convince them of their error. We find upon all the evidence that the respondent did not dis- charge the Keeley group because they were rumored to be ring- THE DOW CHEMICAL COMPANY 1023 leaders in a proposed sit-down strike, that the respondent did dis- charge,them in order to thwart the nascent Union, and,that.this anti- union activity was pursued under guise of opposition to a, fictive sit-down. Even if we found that the desire to prevent a sit-down strike was one of the motives, the evidence would still compel the conclusion that a substantial motive for the discharges was the respondent's desire to thwart the nascent Union. A violation is thus established whether or not the respondent may have had some other motive in addition to that of repressing self-organization and without regard to whether or not the respondent's asserted motive was lawful.33 There can be no doubt that whatever its ultimate motives were the respondent was attempting to accomplish them by illegal means. The respondent sought to and did defeat lawful activity protected by the Act. The respondent sought to and did deprive employees of rights guaranteed by the Act. By the many acts of interference, restraint, and coercion described above in Section III B, by the unlawful fostering of the Association described above in Section III C, by the many discriminatory discharges, other than of the Keeley group described in this section, the respondent made abund- antly clear that whatever its ulterior motives were, it was pursuing them by a wholesale disregard of the Act. Only by a crass disre- gard of the realities could it be said that the discharge of the Keeley group was not an integral part of the same unlawful scheme. We find that the respondent discharged Henderson, Harris, Keeley, Miller, and McNett on March 9 because they attended the organiza- tion-meeting of the Union the night before, and because the respond- ent was engaged in a campaign to thwart the exercise by the employees of the rights guaranteed them in Section 7. Between March 9 and 18, the date of reinstatement, Harris would have received 90 cents an hour for a 7-hour day. He earned nothing during this period. Between March 9 and 18, the date of reinstate- ment, Keeley would have received 96 cents an hour for a 39-hour week, and in addition a $3 or $4 weekly bonus. He earned nothing during this period. Between March 9 and April 21, the date of rein- statement, Miller would have received 80 cents an hour for a 39-hour week. He earned about $20 during this period. Between March 9 and April 22, the date of reinstatement, McNett would have received 66 cents an hour for a 7-hour day. He earned no money during this period. = Cf National Labor Relations Board v. Staekpole Carbon Company, 105 F . (2d) 167 (C C A 3d) ; National Labor Relations Board v Remington Rand , Inc, 94 F (2d) 8(2, 872 (C . C. A. 2d), cert. den. 304 U. S 576; Matter of Borden Mills, Inc. and Textile Workers Organizing Committee , 13 N. L. R. B 459. 1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harris, Keeley, Miller , and McNett were restored , without loss of status , to the positions which they had occupied on March 8. Henderson's case, however , raises a separate problem. Three of the "undesirable workmen," including Henderson, were employed in the paint department at the time of their discharge.34 None of these was reinstated to the paint department . On March 17 Post restored Henderson to the-pay roll, but informed '-him that he- could not resume work until a position other than in the paint depart- ment was found for him. About 3 or 4 weeks later, Driver summoned Henderson and told him that he would be taught a new trade. Henderson offered no objection . On April 9 he began work on cast- ing Dowmetal ingots. After 3 hours he was transferred to pulling Dowmetal sheets and slabs from a rolling mill in the fabrication de- partment . Henderson 's foreman testified that this job involved heavy work during the learning period, which took between 2 and 3 weeks. Because of a back injury sustained in the respondent 's service about a year before, Henderson felt incapable of pulling the heavy slabs. Accordingly , he left without notice about April 19. His employment record notes that he was laid off on April 22 because "absent without notification ." About June 1 Henderson applied to Driver for work in the paint department and was refused on the asserted ground that the paint department was not hiring. About a week later this de- partment hired between 10 and 15 employees , although none was hired as a first- or^second-class painter. Henderson was a first-class painter. Driver testified that Henderson was not reinstated to the paint department because that department was "a nest full of agitation." Driver thought "it would be a good thing to get them among some men that talked `Let's keep our jobs if we can."' Q. Well, then I think it is fair to say that you thought if you transferred them to other departments the other men would have some effect on their belief ? A. I hoped so . That is right. Under the circumstances , it is clear that the failure to reinstate Hen- derson to the paint department after his discriminatory discharge on March 9 and his transfer to another department was itself an unlaw- ful discrimination , and we so find. Henderson 's leaving was the direct consequence of these acts of discrimination and in order to effectuate the policies of the Act we must restore Henderson 's status existing prior to the commission of the unfair labor practices against him. Accordingly we will order the respondent to reinstate him as set forth below in the "Remedy" section . On March 8 Henderson was receiving 60 cents an hour for a 7-hour day . He would have received The other two are not named in the complaint. THE DOW CHEMICAL COMPANY 1025 a 10-cent per hour increase effective March 1. He earned about $300 between the day of his discharge on March 9, 1937, and March 24, 1938, the day he testified. Keeley, Harris, and Miller have continued to work for the re- spondent since their reinstatement. However, McNett was discharged on August 27, 1937. The complaint alleges that this discharge was discriminatory and the Trial Examiner so found. The respondent takes exception thereto, asserting that McNett was discharged for cause. Subsequent to his reinstatement on April 22, McNett remained a member of the Union and visited union headquarters occasionally. Murphy, McNett's foreman, knew he was affiliated with the Union. McNett also joined the Association sometime in May, at the request of Engwis, delegate for the machine shop. McNett had begun to work for the respondent on August 25, 1933, as a helper in the machine shop, receiving 42 cents an hour. The following month he was raised to 46 cents an hour. On April 25, 1935, he transferred to the police department. During the remainder of the year 1935 he received two increases, being raised to 54 cents an hour. On February 17, 1936, he transferred back to the machine shop at 50 cents an hour, his employment record being marked "good man." On December 1, 1936, he was raised to 56 cents an hour, and upon reinstatement on April 22, 1937, following his discriminatory dis- charge, he received the 10 cents per hour plant-wide increase. On May 21 he was given a further 4-cent per hour increase. Murphy testified that McNett was a satisfactory workman, but that upon his return from the police department in February 1936 he did not appear content. Murphy asserted that the three first-class ma- chinists whom McNett assisted complained frequently that McNett left his work to talk to other employees. Murphy further testified that on several occasions he asked McNett to explain his behavior, and McNett promised to reform. Thus, according to Murphy, he found McNett away from his work twice on the morning of the day on which he was discharged. Murphy claims he reprimanded McNett, inform- ing him that there had been several complaints about his leaving his work. McNett testified that he had received no complaints with respect to his work prior to the incident related below. He further asserted that he was on friendly terms with Engwis, whom he as- sisted, and had had no trouble with Murphy. Engwis did not deny this. McNett did not remember having been reprimanded on the morning of the day he was discharged, and claimed further that, although he was outside the building that day, he was on the job, bringing in a cylinder head. Carr, McNett's subforeman, corrobo- rated Murphy's testimony to the effect that the first time Murphy 1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD found McNett outside the building on the morning of the day of McNett's discharge, Murphy cautioned Carr to watch the employees more closely, and that the second time Murphy cautioned Carr more strongly. Since McNett was on the field repair crew, his claim that he had to leave the building to get a machine part is credible. Moreover, the practice of walking off the job could not, by itself, have been of any real consequence, since Murphy claims that McNett was engaging in it as far back as February 1936, and further this did not prevent McNett from receiving the wage increase on December 1, 1936, the plant-wide increase effective March 1, 1937, and the further rate adjustment on May 21, 1537. In any event; the asserted cause for McNett's discharge' did not arise until the afternoon of August 27. Thus Murphy testified that he had not decided to discharge McNett at 11: 30 a. in., the second time he allegedly saw McNett off the job on August 27. Murphy testified that he did not discharge McNett for being outside the build- ing but for damaging a pump. McNett's employment record was marked "Discharged-leaving job without permission and due to this a pump was damaged." The facts with respect to the damage to the pump are as follows. Engwis, with McNett as his helper, was engaged in repairing a vacuum pump. After completing repairs, the pump was being broken in, while both watched to see whether it was operating properly. McNett mounted the pump to install a new style oiler. Engwis re- mained below, directing McNett's activity. Becoming angry with the way in which McNett was doing the work, Engwis called him a "thick- headed numbskull" and instructed him to report to Murphy that they could not get along together. Pursuant to Engwis' instructions, Mc- Nett left the pump and reported to Murphy,. and Engwis left the pump to use a work bench in an adjoining building. In their absence Carr noticed on his inspection tour that the pump was running hot. Carr did not shut it off, although he admitted that a hot pump should be shut down. Carr went in search of Murphy. It took Carr about 5 minutes to find him, and the damage may have occurred during this interval. The extent of the damage is indicated by testimony of Engwis. Three new guide straps were required, and 3 hours were taken to repair the damage. McNett left the scene pursuant to the instructions of his acknowl- edged superior. If the pump were left unwatched, Engwis was this one responsible. The damage occurred apparently after Carr's failure to take the obvious preventive step of shutting down a hot pump. Whatever negligence there was is attributable to Engwis and to Carr, THE DOW CHEMICAL COMPANY 1027 or at the very least to them as well as to McNett. Carr and Engwis are still working. It does not appear that they were disciplined at all, or that Murphy made any effort to determine which persons were really at fault. Instead McNett was subjected to the drastic penalty of discharge for what appears to have been a relatively unimportant injury of which he certainly was not solely culpable. Such arbitrary action with respect to McNett can only be under- stood in the light of the respondent's anti-union activity. McNett had been one of the victims of the respondent's campaign against the Union in March and as such was a marked man. The Union began to revive in August. McNett retained his union affiliation. Murphy, of course, knew that he was a union member. Under all the circumstances we find the pump incident was only a convenient pretext for discharging McNett on August 27 because of union membership and activity. On August 27 McNett was receiving 70 cents an hour for a 40-hour week. Between then and March 24, 1938, the day he testified, he earned about $170. Grover Alexander, a boiler-room shift foreman, was hired on Sep- tember 5, 1927, and worked until February 16, 1928, when his employ- ment record was marked "Did not care to follow instructions." He was hired again on August 14, 1928, thereafter rising from laborer at 42 cents an hour to shift foreman at 84 cents an hour. Alexander was released on March 9, 1937. The complaint alleges that this dis- charge was discriminatory. The Trial Examiner so found and the respondent takes exception thereto. At the time of his discharge Alexander had been a member of the United Mine Workers of America for some 20 years. Several days before the union organization meeting of March 8, Alexander aided in the circulation of a petition requesting the C. I. O. to send an or- ganizer to Midland. He also attended the March 8 meeting. The following night when he reported for work, he learned that his time card had been pulled. A few days thereafter occurred the interview in which Dow stated to the group of discharged employees that he saw no reason why they should not be reinstated. Although Alex- ander was among this group, he has never been reinstated.8 A release slip, Alexander's employment record, and the respondent's answer assign unsatisfactory work as the reason for Alexander's dis- charge. The evidence shows clearly that Alexander was not released for this reason. as Starks made the following notation on the reverse side of the release slip turned in for Alexander : "April 20 By request of Mr. Beutel I checked this man today with Mr. Newkirk . This man does not cooperate with others well and seems to do things to make work harder for others about him , and will not obey mstructionq . I see no reason to reemploy him." 1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Butler, powerhouse engineer in charge of shift foremen , testified as follows as to Alexander 's qualifications : ... he is one of the best men we had. He really knew his job. He knew the plant. He could get the work out of the men. Butler further testified that Alexander was always capable of han- dling the four employees under him; that on occasions he worked extremely well with his men, but on others not ; that "very few men were willing to work on his shift" because, they asserted, he was "extremely arbitrary and sometimes very ugly and they were afraid of him" ; that "sometimes he was perfectly willing to cooperate" in the execution of orders "and other times he would almost down and outright refuse"; that "some orders he enforced to the letter, some beyond the letter, some involving too much work he didn't enforce at all." Harold Johnson, chief operator engineer in direct charge of Butler, testified that Alexander knew the plant thoroughly, but that he did not cooperate with his supervisors in that "he was negligent in carrying out orders and insubordinate." Johnson and Butler pur- ported to support these general accusations by the citation of the specific instances to which we now turn. On October 2, 1935, a year and a half before he was discharged, when Alexander was a class "B" fireman, his shift foreman com- plained that he had refused to shut off a valve. At the time of the request by the shift foreman, who customarily shut off the valve himself, Alexander was perspiring from his work as fireman. To close the valve, Alexander would have had to go from the fire room to the open air on a cold night . Alexander stated he would cool off before complying with the order. Also, sometime in October 1935, Johnson learned that Alexander and his crew were leaving before the close of their shift but after the men on the next shift had already reported for duty. Upon being notified of its impropriety , Alexander discontinued this practice. Butler had ordered shift foremen not to permit unauthorized per- sons to interfere with the operation of the boiler room . Pursuant to these orders Alexander refused to permit maintenance men to touch controls and "things," which according to Butler "were really part of their duties." Alexander admitted that on one occasion Newkirk spoke to him about a complaint that he was not cooperating with the maintenance boss. Butler testified that on one occasion it was he, Butler, who received a severe reprimand for ordering Alexander to order instrument men from the boiler room. It does not appear whether Johnson and Newkirk blamed Alexander 's actions on his indiscreet enforcement of proper orders or on his reasonable enforce- ment of Butler 's improper order. There is nothing to show that THE DOW CHEMICAL COMPANY 1029 Alexander continued to interfere with maintenance men after his talk with Newkirk. Butler sent the following memorandum dated August 1, 1936, to Alexander : Notice from the charts that the air inlet temperature to No. 62 mill was 400° for 3 hours before the fire. I believe that this explains the fire. There also appears to be a lot of stones in the mill which may have caused sparks. I would suggest that you have your firemen limit the mill inlet temperature to 350° and the mill outlet to 1501.36 The fire had occurred in a structure known as a pulverizer or mill. Coal is crushed in the pulverizer, then forced by air pressure into the fire box. The temperature of the air introduced into the mill is between 450° and 500°. The temperature is diminished to the desired degree by the simultaneous introduction of cold air. Butler attributed the outbreak of fire to the high temperature and to sparks emitted by stones. The coal may contain pieces of stone which give off sparks when the coal is struck in the process of pulverization. The sparks may start a conflagration if the heat in the mill is intense. At the time of the fire Alexander was under no orders as to the maximum temperature to be maintained. In fact when Butler wished to issue a 'general order setting the maximum at 350°, following this fire, Newkirk refused his assent on the ground that other companies were able to operate their mills at higher temperatures. As to the other factor, the presence of stones, Alexander was also clearly not culpable, since the stones cannot be eliminated until they drop to the bottom of the mill after the ball hits them. Moreover, the coal also contains pieces of steel capable of emitting sparks as is done by the stone. A magnet, placed in the mill to attract the steel, sometimes does not succeed in drawing all the pieces. After an inspection at the close of Alexander's shift on December 8, 1936, Butler sent him a "note" for his "guidance" which set forth a number of respects in which the work of Alexander's shift was sub- ject to criticism. Butler brought these matters to Newkirk's attention, reminded him that Butler had recommended Alexander's discharge before and renewed the recommendation. Butler testified to New- kirk's reply, as follows : "Well, he told me in effect that he thought I was crazy; we couldn't discharge a man for as little as that, and he said I would have to get along with Mr. Alexander and proceed to try along with him without releasing him." About January 1, 1937, Butler was given a new assignment, and one Good was placed in charge of Alexander and the other shift foremen. 88 Respondent Exhibit No. 18. 187930-39-vol. 13--C6 1030 DECISIONS OF NAT1ONAL LABOR RELATIONS BOARD Good did not take the stand to describe Alexander's efficiency, per- formance, and cooperativeness between January and March 1937. There is nothing to show that his work was unsatisfactory during this period. In short, the record shows admissions by his superiors that Alex- ander was a capable shift foreman, and fails to sustain their assertion that Alexander was negligent or uncooperative. The facts are in sharp conflict with the defense that Alexander was discharged for unsatisfactory work. Indeed, Johnson admitted on the witness stand that Alexander was not released for cause. The respondent in its exceptions asserts that Alexander was re- leased in a crew reduction as the least valuable of the boiler-room shift foremen . Johnson testified that upon the receipt of instructions from Newkirk on March 4 to reduce the crew, he proposed eight for lay-off after consultation with the powerhouse clerk. Johnson fur- ther claims that seven of these, including Alexander, were laid off, the eighth being transferred to another job. Johnson purported to make the selections primarily on the basis of ability. We are of the opinion that the reason assigned by the respondent's exceptions for its release of Alexander; namely, a crew reduction, is an afterthought rather than the true cause. Thus Alexander's em- ployment record and the respondent's answer do not assign this reason. Further, of the seven laid off, five were 'released effective March 6, whereas Alexander was not released until March 9.3T Moreover, if the criterion of ability were applied, Alexander was not in line for a lay-off, since he had long experience in the powerhouse, was shift foreman, and was able according to the admission of his superiors. Finally, there was no reason shown for dropping a regular shift fore- man. None of the three shifts was abandoned. Alexander's job was not abolished. Upon his release, it was filled by an' "extra" who had been working with Alexander and his crew. The salient facts are these. Alexander was a capable shift fore- man, whose work received none but the customary criticism and guid- ance. The respondent, intent on obstructing the union drive before it made headway, released Alexander immediately after his attend- ance at the Union's organization meeting and on the same day that it discharged the Keeley group of employees. While his employment record indicated that his lay-off was for cause, the respondent later asserted that the release was merely incident to a crew reduction. The evidence belies this assertion and shows further that Alexander 3' Johnson asserted that Alexander was released on March 9 instead of on March 6 because "it was necessary with the 120 shift men to change some around to get one available to take his position ." But this explanation is incredible since Alexander was not scheduled to report for work on March 7 and 8 anyway , and he was released before he resumed work again. THE DOW CHEMICAL COMPANY 1031 would not have been laid off if the respondent were not desirous of dis- criminating against him. As a shift foreman favoring the Union, Alexander was an obstacle to the respondent's anti-union campaign which the respondent removed by discharge and refusal to reinstate. Accordingly, we so find. Upon his release Alexander was receiving 74 cents an hour for a 48-hour week and would have received 84 cents an hour effective March 1. He earned $145 between the day of his release and March 24, 1938, the day he testified. Paul Gray first began working for the respondent on April 3, 1929, as a packer, leaving the same month because he refused to perform an assigned task. At various periods thereafter he worked in differ- ent departments at the respondent's plant. In • 1931' his employment record was narked "Good mail"; and at the beginning of 1932 it was marked "Good workman." However, toward the close of 1933 it Doted that he was "not doing his work." On February 9, 1934, he became a boilermaker helper. Between then and December 1, 1936, he was raised from 48 cents per hour to 60 cents per hour. Gray was released on March 13, 1937. The complaint alleged that this discharge was discriminatory. Gray, a member of the A. F. of L., attended the Sheepshed meeting of the Union, held on March 10. Upon his failure to come to work one day he was released, his employment record assigning as the rea- son therefor "irregular in,attendance." Jones, superintendent of the boiler shop, testified that he released Gray because of Gray's poor attendance record. Gray admitted that his attendance was irregular and that he had been cautioned about it. The Trial Examiner found that the discharge was for cause, and the Union failed to take specific exception thereto. We find that-the record 'does .not sustain the allegations of the com- plaint that the respondent discriminated in regard4o Gray's hire and tenure of employment, thereby discouraging membership in the Union. John Lane was first hired on February 16, 1934, but his employment was irregular from that date until August 13, 1936, when he became a wireman's helper in the electric shop. He was released in March 1937.88 The complaint alleges that his discharge was discriminatory. The Trial Examiner found that this allegation of the complaint was not supported by the record, and the Union takes exception thereto. 83 In 1933 Lane was convicted for theft of an automobile and sent to reform school for a term of six months to 10 years . After serving for six months . Lane was paroled, in February 1934, and began to work for the respondent . In June 1934 he was recommitted to reform school for violation of parole and served a three-month term Thereafter he was reemployed by the respondent . In April 1937 , that is, subsequent to his discharge, Lane pleaded guilty to a charge of assault and battery . The record does not reveal the nature or circumstances of the assault and battery or any claim by the respondent predicated thereon We have considered the facts set forth in this footnote in assessing the general credibility of Lane's testimony. 1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On March 9 Lane attended the Union meeting held at the home of Guy Smith, and on the following night he attended the Sheepshed meeting. On March 13, Lane's foreman, Al Buck, requested Lane to report the following day with a full lunch bucket, stating that employees were staying in the plant to ward off any attempt by the C. I. O. to seize control of it.39 Lane's presence at the plant that afternoon was not compulsory. Instead of complying with his fore- man's request, Lane attended the union meeting of March 14 held at the Community Center, and applied for membership in the Union 40 On the following day, March 15, Lane appeared at work as usual. While attending to his duties, five employees 41 accosted Lane. They asked Lane to turn in his Union card and to join the inside organi- zation which was being formed at that time. Lane replied that if he had a card, he would not turn it in. They also asked Lane why he had not reported to the plant on the previous day, and then brought him to Driver' s office. The five men announced their refusal to work with Lane on the ground that he favored the Union and opposed the inside organiza- tion. Driver told these employees to return to work, that he would speak to Lane, and that Lane "would not be back in there to cause any disturbance at all." After they left, according to Driver, Lane "admitted that he had talked C. I. O. or union activities, or sit-down, or whatever it was; I can't definitely state as to all; and I said `John, you are pretty excited. You go home and come back in the morning.' 1142 The respondent caused Lane's time card to be pulled and by the morning of March 16 it was in Driver 's office. Driver admitted on the witness stand that he had no intention of ;reinstating Lane to the electric shop. Accordingly, we find that the respondent discharged Lane from the electric shop on March 15, 1937. iS With the knowledge and approval of Hoy the employees who stayed within the plant on March 14 manufactured billy clubs . As we have already noted, the respondent failed to prove that it really apprehended an imminent sit-down. Having employees manufacture hilly clubs appears to be in line with the tactics employed by Hoy at the Sheepshed on March 10. 4° Respondent Exhibit No. 4. 41 Pierce Hawk ( Boris Hoch ), James Doran , Steve Beck, Ed Garrish , and Robert McDonald. 42Driver testified that Lane did not return the following day, Maich 16. Because of our subsequent findings in the text this would be irrelevant even if true . Furthermore, we find from the weight of the evidence that Lane did report on March 16 Lane testified that he so reported and that Driver or Driver ' s assistant informed Lane that there was no work for him. The assistant was not called to the stand to deny Lane's testimony. We think it highly probable that Lane would have reported in an effort to get work . Thus he persisted in applying even after he was told of his formal release on March 18. That an assistant to the employment manager should tell Lane that there was no work for him is also likely , since the respondent employed some 4,000 persons , and besides, Driver was busy at this time conferring with Thorpe delegates . Accordingly we find that Lane reported on March 16 and was told that there was no work for him THE DOW CHEMICAL COMPANY 1033 Driver claims that he did not send Lane back to work because he "was afraid somebody would get hurt." The record fails to show the imminence of any violence. Besides, Lane was in a crew whose members were scattered all over the plant. It would therefore have been an easy matter to station Lane in a place apart from the em- ployees who ejected him. Moreover, the obviously proper course would have been to send-home those threatening violence rather than the victim thereof or at the very least to afford Lane protection at work. It is clear that Lane's assailants ejected him because of his union sympathies and because of his opposition to the incipient Association. Their action "was, if not inspired by, at least encouraged and pro- moted" by the "respondent and its agents".43 By not according to Lane protection at work, by discharging him instead of returning those who molested him to their jobs, Driver approved, ratified, and adopted their coercive tactics. Lane's discharge was thus discrimina- tory. A writ of garnishment attaching Lane's wages had been served on the respondent on March 17. The respondent's answer avers, and Lane's employment record notes, that Lane was released on March 18 because of this garnishment. We have found however, that in fact Lane was discharged two days before the writ was served. Accord- ingly the garnishment could not have been the real cause for Lane's discharge. Moreover, if Lane had not been discharged on March 15, a non- discriminatory application of the respondent's garnishment rule would not have resulted in Lane's discharge on March 18. Driver testified as follows in connection with the respondent's garnishment rule : Q. . . . is it your custom to automatically release a man upon receipt of a writ of garnishment even though the man may im- mediately upon being notified of that remove it? A. The chances are he would be released. In other words he would defeat the intent of the rule. The thing that we at- tempt to do-and it is open to every man-if he is in difficulty come in and we will help him all we can to adjust his affairs and pool them. Then if he has done that, and then somebody gar- nishees him, we have some good proof right in our own depart- ment that the man is paying all he can pay and he couldn't pay any more. 48 Clover Fork Coal Company v. National Labor Relations Board , 97 F. (2d ) 331 (C. C. A. 6). 1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nevertheless, it appears from Driver's own testimony as to the re- spondent's practice in garnishment cases that such a pool need not be entered, into, before the, writ, is served in order- to continue working : Q. Now, what do you do when a garnishment comes in, then? A. We pull the man's card and release him, and then call him in and see if there is some adjustment that can be made. Q. Now, state any other circumstances that a man would not leave the plant or be released from the plant when he was gar- nisheed, other than this instance that you gave of where he is pooling 15 or 20 per cent of his salary and then he is garnisheed, you keep him on. Now, are there any other instances? A. We might keep him on while we were making an investiga- tion for a short time. Thus, although a formal release may follow service of a writ upon the respondent, such formal release need not prevent the debtor employee from continuing to work. Further, the reasonable inference from the facts of an investigation and a conference to "see if there is some adjustment that can be made" is that the debtor employee does not lose his job if he can make some adjustment. Thus Driver testified : Q. If Lane had been able to fix up that garnishment might not you have taken him back at that time? A. I talked to John about that and I said "there might be some place I could send you but I certainly wouldn't send you back to the electric shop." That an employee, who could make an adjustment following service of the writ, did-not lose his job -is made;clear by the following testimony of Ray Holmes, head of the diphenyl department at the time of Lane's discharge : Q. Then do I understand you from past experience a man can as you say get the garnishee taken care of and he may not be released? A. I have never known of any employees that ever made an effort to take care of it that have been released. We find from these circumstances that the respondent did not rigor- ously enforce the rule requiring dismissal following a garnishment and that an employee who could adjust a garnishment did not lose his job. Lane was not given work during any investigation. It does not appear that any investigation was undertaken or that Lane was inter- viewed to see whether he could make a satisfactory adjustment. Lane could and would have made an adjustment if the respondent had THE DOW CHEMICAL COMPANY 1035 given him the customary opportunity 44 The garnishment was thus a convenient pretext upon which to base the formal discharge which had become an accomplished fact two days before the writ was served on the respondent, since a nondiscriminatory application of the gar- nishment rule would have involved giving to Lane an opportunity to adjust the matter. During April, May, and June the respondent hired more men than it released .4' Despite repeated applications during this period, Lane was not reinstated. On one of these occasions Driver told Lane : "I have an awful lot of trouble finding somebody that will give you a job ... it would be awful hard for me to place you . . . Your record isn't good . . ." Driver promised to "see if I can't place you" pro- vided that Lane could procure a paint job in town plus a favorable recommendation for his performance of it. Driver testified that "John hasn't ever done that but I hope he will this spring." The respondent did not purport to discharge Lane because his "record" was not "good", nor does the record show that Driver attempted to reinstate Lane. These circumstances and the others we have set forth in discussing the allegation of discrimination with respect to Lane preclude a finding that this "proposition" of Driver to Lane was made in good faith. We find that the respondent discriminated against Lane by dis- charging him on March 15 and by refusing to reinstate him there- after because Lane attended union meetings, applied for membership in the Union, refused to participate in activity hostile to it or to resign therefrom, and refused to join the inside organization. At the time of his discharge Lane had been receiving 60 cents an hour for a 7-hour day. Between the day of his discharge and March 24, 1938, the day he testified, Lane earned about $300. Guy Lewis was first hired by the respondent on November 6, 1933, as a packer helper in the lime sulphur department. On April 1, 1934, he became a packer. When the department closed on April 22, 1935, Lewis transferred to the aspirin department. He quit the following month, and was rehired on July 16, 1935, as a pipe-shop laborer. When the work in this department slowed down on August 20, 1935, Lewis became a laborer in the construction department. On Septem- ber 28, 1935, he returned to the lime sulphur department as a packer. On March 16, 1936, he became a dryer operator in the same depart- ment. When the department closed on May 4, 1936, he became an operator in the semi-department. On July 7, 1936, he quit rather than "take reprimand for bad work." In October 1936 he was given a temporary job which lasted 5 days. 44 The debt was $33 .00. Lane had about eight days' pay coming to him At 60 cents an hour for a 7-hour day , the respondent owed him $33.60. 46 Respondent Exhibit No. 12. 1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On December 17, 1936, Lewis was again hired as a packer-helper in the lime sulphur department, becoming a packer on February 1, 1937. He was laid off on April 15, 1937, and not reinstated except for 4 days' work loading calcium in October 1937. The complaint alleges that this lay-off and the respondent' s refusal to reinstate him there- after were discriminatory. The Trial Examiner found that Lewis' release was the result of a business shut-down, and recommended that the' complaint be dismissed as to -him. --The- Union- takes -exception thereto. Lewis, a member of the Association, did not affiliate with the Union or engage in activity on its behalf. Upon his release, he was advised that slacking work necessitated a reduction in crew. His employment record assigned "no work" as the reason for the, release. The department closed about a month after Lewis' lay-off, but a number of employees continued to work there most of the summer, attending to shipments and to similar duties. Upon previous occa- sions when the lime and sulphur department closed, Lewis had been transferred to another department. During each month between April and July 1937, inclusive, the respondent hired more men than it released.46 Lewis had had prior experience in several departments. About a week after Lewis was laid off, Zuckermandel, superin- tendent of the lime and sulphur department, discharged an employee named Heath. Heath protested his discharge to Driver, who there- upon gave Heath and Zuckermandel a hearing. During the interview Driver learned that about 6 weeks before, Heath was to be discharged but was not because three employees, including Lewis, had threat- ened to strike unless Heath was retained. Lewis applied to the employment office a number of times with- out success. Finally, sometime in July he saw Driver with refer- ence to obtaining employment. In the course of the conversation, Driver asked Lewis "about this strike business you were going to do." Upon Lewis' denial of participation in the incident, Driver stated : "You have been accused of this, and I want to know the truth. If you will go get Mr. Heath and he will deny that, I will see if I can find you a job somewhere in the plant.47 According to Lewis, Driver also said that if he had known of the incident, he would'have dis- charged Lewis earlier. Shortly after this conversation, Lewis obtained work with an out- side contractor which required his presence within the respondent's plant. Driver passed Lewis on a number of occasions, asking when Lewis was going to procure Heath's denial that Lewis was impli- 4O Respondent Exhibit No. 12. e' This was clearly an offer of employment if Lewis supplied the desired proof, since Driver was employment manager, the respondent was hiring more men than it was releasing, and Lewis had prior experience in several different departments. THE DOW CHEMICAL COMPANY 1037 cated in the strike threat. Lewis replied that Heath was too busy to appear and so to report. Driver testified as follows in this connection : Q. (By Mr. Bott). You probably feel, Mr. Driver, don't you, that the reason he did not bring proof back to you that he was not agitating a strike was that he could not get Heath to deny it? A. I imagine that is it. However I am not holding that against Lewis a bit. The chances are when this CCC camp [sic] and if we are employing nien, why, Lewis will go to work somewhere. In short, the respondent offered Lewis work in July if he could prove that he was not implicated in the threat to strike. He could not prove it, and he was not given work. Further, it is clear that Lewis was refused work in July because of his supposed participa- tion with other employees in a threat to strike. By refusing to give employment to Lewis because of concerted activity for the purposes of collective bargaining and other mutual aid and protection, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, thereby engaging in an unfair labor practice within the meaning of Section 8 (1) of the Act .411 In addition, such discrimination has the effect of discouraging membership in a labor organization, which is the customary instrument utilized by employ- ees to exercise the rights of collective bargaining and other mutual aid and protection guaranteed by Section 7, and constitutes an un- fair labor practice within the meaning of Section 8 (3) of the Act.4a Between April 1937 and March 24, 1938, the day Guy Lewis testified, he earned about $125.00. Kay Kiser, foreman of the die casting and alloy department, was discharged on May 15, 1937. The complaint alleges that this dis- charge was discriminatory. Kiser, a former member of the A. F. of L., has no record of union membership or activity that appears to be connected with his dis- charge. The evidence showed that the respondent discharged him because the efficiency of the foundry was not satisfactory under his direction. 48 Matter of Servel, Inc. and United Electrical, Radio, and Machine Workers of America, etc, 11 N L. R. B. 1295. S9 Matter of Stehli and Co, Inc and Textile Workers Union, etc , 11 N L. R. B. 1397. Cf. Associated Press v . National Labor Relations Board, 301 U S 103. In sustaining a findin' of the Board that an employer had committed an unfair labor practice within the meaning of Section 8 ( 3) of the Act , the Supreme Court stated : "The Act permits a dis- charge for any reason other than union activity or agitation for collective bargaining with employees . . The petitioner is at liberty , whenever occasion may arise, to exercise its undoubted right to sever his relationship for any cause that seems to it proper save only as a punishment for, or discouragement of, such activities , as the Act declares permissible" [Italics supplied I 1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner found that Kiser was discharged for cause, and tfie Union did not take specific exception thereto. We find that the record does not support the allegation of the complaint that the respondent, discriminated in, regard to the hire and tenure of employment of Kiser, thereby discouraging member- ship in the Union. Ray Crosby has worked for the respondent on and off since 1916. Crosby has held different jobs in many departments. On April 24, 1936, he became an operator in the phenacetin department. On July 6, 1936, he was laid off because of curtailed production. His em- ployment record was marked "Quite satisfactory as an operator." On September 14, 1936, he was rehired in the same capacity. Be- tween April 24, 1936, and July 21, 1937, Crosby's rate per .hour rose from 52 cents to 76 cents. He was laid off on July 21, 1937, his employment record reading "Plant shutting down-man is capable, but not very dependable. Will work hard if he happens to like the job." The complaint alleges that this release was discriminatory. The Trial Examiner so found and the respondent takes exception thereto. Crosby attended the Union meeting held in the Community Center on March 14, 1937, but he did not join the Union until March 1938. Don Ross, under whom Crosby worked, signed him up for the Asso- ciation in the spring of 1937. About a month before his release, Crosby told Ross that the Association "would be all right" if it did as it "agreed", and that unless it did so, the employees, including Crosby, would join the Union. Crosby also told Ross that the Asso- ciation was not producing results as to raises and "other things." Thereafter, Crosby spoke in favor of the C. I. 0., making no secret of his preference. Crosby noticed that Mate, a supervisory employee under whom Ross worked, became less friendly toward Crosby after Crosby had spoken in favor of the C. I. O. Upon his release Crosby telephoned Mate to find out the reason therefor. As soon as Mate discovered why Crosby had called, he hung up the receiver, refusing to talk with Crosby. About 2 weeks after his release Crosby applied to Dow for work. Dow told him he "was set down as a trouble-maker" and sent him to the, employ- ment office, where Jeavons, Driver's assistant, refused to talk with him though he told Jeavons that he had been sent by Dow. The only troublemaking that Crosby could think of was his union talk with Ross. Dow did not offer any other explanation of his state- ment. The respondent did not offer proof to show that Crosby gave trouble or was undependable with respect to his work. The hos- tility of Mate and Jeavons is also significant in this connection. We find that the respondent considered Crosby a troublemaker be- cause of his union sympathies and talk. THE DOW CHEMICAL COMPANY 1039 At the time of Crosby's release , there were five operators, including Crosby, in his department. Sayles, who had greater departmental seniority than Crosby,, was not released. The day after the shut- down, S. Crall was given a job in the chlorine cell department. Crall's record of unbroken employment -dates back only to March 1937 whereas Crosby's dates back to September 1936. Taglower was given a job in the ethylene generator department. Taglower did not start work for the respondent until August 1936. Whereas he was single, Crosby was married and had two children. Driver testified that in the ethylene generator department they preferred a high-school graduate with commercial training, and that Taglower had these qualifications, while Crosby did not. It does not appear, however, that these were requisite qualifications for the work. McMillan, whose seniority does not appear, was given work in the aspirin department where he had had previous experience. Driver testified that he was unable to find a place for Crosby at the time of his release. We cannot credit this testimony. During the month of July, the month of Crosby's lay-off, the respondent hired 153 persons and released only 56, and during August, 96 were hired as against 88 released.5° Crosby had previous experience in more than 10 different departments, his first employment with the respond- ent dating back to 1916. When Crosby applied for work, Dow told him he was a trouble- maker, referring to his union talk. Mate, a supervisory employee, became unfriendly following Crosby's talk in favor of the Union, and would not even explain to Crosby why he was not recommended for other work upon the shut-down of the phenacetin department. The hostility of Mate and of Jeavons, in the employment department, must be attributed to Crosby 's union sympathies. The respondent made no effort to explain in what way Crosby was not dependable in his work. The respondent coerced its employees in other respects, thwarting the Union, assisting and dominating the Association. Those in Crosby's classification were given other jobs, whereas Crosby was not, although he had much and diverse prior experience and the respondent was hiring more persons than it was releasing. Under all these circumstances; we must and do conclude that the respondent released Crosby on July 21, 1937, because he disparaged the Associa- tion, indicated that it ought to be more militant, and expressed his preference for the Union. Crosby was receiving 76 cents an hour for an 8-hour day, at the time of his release. He earned $75 between the day of his release and March 28, 1938, the day he testified. Lawrence Huntley was hired on December 19, 1933. On October 18, 1935, he was transferred to the service yard, being assigned to the r° Respondent Exhibit No. 12. 1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operation of the gravel mixer in the service yard On June 1, 1936. Between December 19, 1933, and September 17, 1937, Huntley's rate per hour increased from 44 cents to 76 cents. He was released on September 17, 1937. The complaint alleges that this release and the subsequent refusal to reinstate were discriminatory. The Trial Examiner so found and the respondent takes exception thereto. Sometime after the formation of the Association, Huntley became a member thereof. On May 21, 4 months before the alleged dis- crimination, Huntley was classified as gravel plant operator at 72 cents per hour. Feeling aggrieved because he was not given 76 cents per hour, Huntley surrendered his Association. membership card to one Coons, a representative of the Association, and demanded the return of the dollar he had paid the Association. Coons stated he could not refund the dollar and insisted upon Huntley's retaining his card. In the course of this conversation, Huntley stated : "Well, I don't want the card, I'm all done with the Association, mark my name off the list. The next time I join a union it will be with the C. I. O. if it costs me $35 to join it." Huntley testified to what hap- pened thereafter, as follows : I went on the job, didn't more than get down there when Hollis [Huntley's sub-foreman at the time] came down and he started putting me on the spot. I said, "How is that?" He said , "Well, I'm one of the delegates of the M. C. W. A." "If you are," I says, "why don't you get around and do something then?" He asked me what I could see in the C. I. O. I told them the C. I. O. got us more than he would ever get us. On June 7, 1937, Huntley's rate.-per hour was increased to 76 cents, his employment record being marked "Error in previous rate change." Huntley did not join the Union until three weeks after he was discharged. In releasing Huntley, Superintendent Fullen adverted to the qual- ity of the material which Huntley had been producing. Huntley's employment card also criticized his work .51 The evidence shows that Huntley had produced defective paving material on a number of occasions , that the respondent attributed this to Huntley's negligence, and that the respondent called Hunt- ley's attention to its criticisms. Fullen testified that especially to- ward the end of Huntley's "supervisory rein [sic]" the quality of his work was "bunk." m The entry opposite the date of Huntley's release is as follows : "L 0 (laid off) Lack of work-Good worker when he want [sic ] to work. Does not choose to work except when he wants to . Will not cooperate-Is much disliked by all foremen and sub-foremen, from his general attitude which is poor and demoralizing to the rest of the crew." THE DOW CHEMICAL COMPANY 1041 We cannot find any connection between Huntley's pro-Union and anti-Association remark in May and his release 4 months later. The record does not reveal any discriminatory motive for Huntley's release. Accordingly we find that the record does not support the allegation of the complaint that the respondent discriminated in regard to Huntley's hire and tenure of employment, thereby dis- couraging membership in the Union. Harry Lewis, a second-class mechanic in the diphenyl department, was first hired by the respondent on April 16, 1924. Between that date and the date of his last release he worked in several different de- partments. Lewis' employment record notes that he is a "good plant repairman" with "some operating experience." Driver agreed that Lewis is "a darn good worker." On October 2, 1937; 2 Lewis was dis- charged, his employment record assigning as the reason therefor the fact that the respondent had been served with a writ of garnishment because of a debt owed by him. The complaint alleges that his dis- charge was discriminatory. The Trial Examiner found that he was discharged for cause, and the Union takes exception thereto. ' Lewis became affiliated with the C. I. O. in February 1937, before the Union held its organization meeting on March 8. He attended the union meeting held at the home of Guy Smith on March 9. At the time of the 10-cent per hour wage increase in March 1937, Lewis' foreman told him that lie would be given additional raises if he would quit talking in favor of organized labor. Lewis became a member of the Association.`; He joined the Union on June 5, 1937.54 During the summer of 1937 he attended meetings of a United Automobile Workers of America local in Saginaw because "interested in the labor movement." Several times he saw Post sitting in a car across from the headquarters of the United Automobile Workers of America in Saginaw. Lewis also saw other automobiles belonging to the respond- ent in the vicinity of these headquarters. When Lewis went to Sagi- naw, cars of the respondent "stayed behind" him. In the summer of 1937 Lewis attended a meeting of the Association convention of delegates pursuant to the invitation of a delegate. At the meeting, in the course of "running the C. I. O. down," Ross ac- cused Lewis of having written a letter to Lansing, Michigan, in an effort to prevent the Association from procuring a charter and as- serted that the letter was in Post's possession. Lewis denied having sent any such letter and sought to take the floor to defend himself. He was denied this privilege, since he was not a delegate. After the 52 Lewis erroneously assigned November 2, 1937, as the date of release and accordingly he made corresponding errors in the dates of the events leading to his discharge. The chronology in the text is based on the respondent 's record for Lewis. 63 Board Exhibits Nos 13, 14. 01 Respondent Exhibit No. 4. 1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting Lewis approached Van Meter, again denying that he had written any such letter. Van Meter replied that Post "wouldn't lie to me about it" and stated that Lewis was not a "fit member" of the Association, Thereupon Lewis asked that the money he paid to the Association be refunded, stating, "if that was the kind of organiza- tion it was," there was no need to "throw" him "out," he did not wish to belong to it. In the fall of 1937 Lewis had Union handbills printed and sent his children to distribute them in front of the respondent's clock room. The watchman stopped them, and asked who their father was. He did not then succeed in finding out. Thereafter, on Sep- tember 20, a car belonging to the respondent's police department drove up to Lewis' home. The occupants of the car knocked on the door and Lewis' wife answered. They asked, and were told, who lived there. Thereupon they left. On the following day, as the children were leaving their home to distribute the handbills, they were told that they had better not go to the plant with the handbills or the police' would drive them away.55 On the following Thursday, Lewis' wages were garnisheed. Jeavons, of the employment department, so informed Holmes, head of the diphenyl department, instructing him to release Lewis to the employment department. Holmes conveyed this information to Lewis. Lewis stated that he did not know the garnishment was going, to be made. Holmes offered to lend money to Lewis, stating that full pay- ment of the garnishment would prevent his being discharged. Lewis stated he had the money. Pursuant to Holmes' suggestion that he see Driver, Lewis left for the employment office an hour before the close of the shift. Driver not being in, Lewis spoke to Jeavons. Jeavons stated he thought it would be all right for Lewis to resume work in the morning. Understanding that a certain Justice had his pay check, Lewis went to him Thursday evening, but was there informed that the Justice` did not have his check. On Friday, Lewis went to work. On Saturday, Lewis again went to the office of the Justice to secure his wages. Pursuant to law he paid the Justice a percentage of his wages and received the balance thereof. On Monday, October 1, Lewis worked without interruption. On Tuesday, October 2, he reported for duty, only to discover that his time card had been pulled. Lewis went to the employment office. There Driver instructed that his check be paid "in full", without offering Lewis any reason. Lewis "didn't figure" he needed to ask because he knew his wages had been garnisheed. 51 The record does not reveal the identity of the person giving this warning. At one point Lewis states that the person giving the warning was a "watchman ," at another time that he was a "foreman." THE DOW CHEMICAL COMPANY 1043 In this connection, Holmes testified that when Lewis reported to work on Friday, ... I asked him if he had seen Driver, whether he made ar- rangements to let that garnishee off like he had the one previous,66 and he said he didn't get to see Driver, Driver wasn't there. He came back Monday. Monday I asked him if he had taken care of it and he said he had, it was all taken care of. I believe it was the next day that he was released because it wasn't taken care of. I asked Harry about it at that time-that is Mr. Lewis, and he said he thought they were going to let it go. Ambiguous use of the words "he," "it," and of the phrase "taken care of" renders uncertain the precise meaning of this testimony. How- ever, interpreting the passage in the light of the other testimony we find the following facts. On Friday Holmes asked whether Lewis and Driver had made some satisfactory arrangement pertaining to the garnishment. Lewis truthfully replied that he had not seen Driver. On Monday Holmes asked generally whether Lewis "had taken care of" the garnishment. Lewis' affirmative reply referred to the payment he had made to the Justice two days before. The discharge on the following day Holmes attributed to the fact that no satisfactory arrangement pertaining to the garnishment had been made. Lewis' statement to Holmes that "he thought they were going to let it go" referred to his understanding that he would not be dis- charged despite the garnishment. His expectation was undoubtedly based on the fact that he had paid the Justice and upon the fact that he had been allowed to continue working after service of the writ. As found above in discussing the allegations of the complaint with respect to John Lane, it was the practice of the respondent to inter- view the debtor employee following a garnishment to see if an adjust- ment could be arranged, and to make some investigation. As there found also, the respondent's' garnishment rule was applied so that an employee who could make an adjustment following service of a writ did not lose his job. The reasonable inference is that the employment office never interviewed Lewis to see what adjustment he could make. He went to the employment office, as instructed, on Thursday. There he was told simply that he could return to work. He was not called back to the employment office until Tuesday and then only to be told that he was discharged. Moreover, just what investigation Driver made of Lewis' finances is problematic. He testified that he tried to check Lewis' financial condition, but he did not indicate what efforts he made in this direction, except negatively, by admitting that the investigation was not complete. He implied that he had more than 61 On the occasion referred to, the respondent had advanced to Lewis wages earned to enable him to prevent service of a writ 1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one reason for not making a complete investigation but he only gave one, namely, Lewis' department was going to shut down soon thereby causing Lewis to be laid off anyway. As an admittedly partial ex- planation it is deserving of little weight. Besides, the shut-down of the diphenyl department was not complete, so that it does not appear that Lewis' prospective release from that department was a foregone conclusion. Further, upon the shut-down of the diphenyl depart- ment a number of employees were transferred therefrom to other work, making even more problematic a nondiscriminatory lay-off. Finally Driver made no claim that he had decided that Lewis could not or would not make a satisfactory adjustment. Lewis had manifested his sympathies by attending C. I. 0. meetings. His foreman had solicited him to cease favoring organized labor. He stood accused of trying to prevent the company-dominated Association from securing a charter. The respondent spied on his union activity. Shortly before his release he had his children distribute Union litera- ture. This activity the respondent's police department traced back to him. Instead of giving Lewis an opportunity to arrive at some adjustment of the garnishment which would be satisfactory to the respondent and to all concerned, as had been done in other cases, the respondent dismissed him. Under all these circumstances and in view of the respondent's hostility toward the Union, its unlawful measures against the Union, and its favoritism toward the Association, we must, and do, conclude that Lewis was discharged for union activity, the garnishment serving merely as a convenient pretext for eliminating an active member of the Union. At the time of his discharge Lewis was receiving 80 cents per hour for an 8-hour day and a weekly bonus of $5.00. Between the date of his discharge and March 28, 1938, the date he testified, Lewis earned $80. Hector Shaw, a second-class carpenter in the construction depart- ment was hired by the respondent on December 18, 1936, and released on November 12, 1937. The complaint alleged that his discharge was discriminatory. Prior to his release Shaw attended two meetings of the C. I. O. at Auburn, eight miles from Midland. Shaw "didn't have any use for the M. C. W. A." and had stated to Chase, an Association representa- tive, that "the C. 1. 0. was all right." About a week before he was dis- missed he told Chase, Albee, who was an Association official, and "some more in there ... that they could give the C. I. O. credit for the raise they got in their wages." Shaw joined the Union more than a month after his dismissal.57 On November 12, 1937, his foreman, Ben Johnson, handed him a release slip which assigned as the reason for this release the company 57 Respondent Exhibit No. 4. THE DOW CHEMICAL COMPANY 1045 rule requiring the discharge of a person in his classification, if he does not merit a raise at the end of a 6-month period. Shaw's employment record attributed the discharge to the same cause. According to Shaw, his subforeman, identified as "Pop," "said it wasn't my work that I was laid off ... that everything I have done was perfect." Ed Sorg, subforeman, and Johnson agreed that Shaw was a "fair" worker. Sorg further testified that the quantity pro- duced by Shaw was not "so great." Turnquist, superintendent of construction, testified that the two factors of primary interest on Shaw's job are quantity and quality and that Shaw did not merit an increase because his performance, although satisfactory as to quality, was deficient in quantity. The respondent gave Shaw's performance as to quantity a "D" rating. None receiving a "D" rating was recom- mended for a wage increase.58 The Trial examiner found that Shaw's release was caused by the respondent's estimate of his efficiency. The Union did not take specific exception to the Trial Examiner's finding. We find that the record does not support the allegation of the com• plaint that the respondent discriminated in regard to Shaw's hire and tenure of employment, thereby discouraging membership in the Union. We find that the respondent discriminated in regard to the hire and tenure and terms and conditions of employment of Delos Wood, Arthur Henderson, Clarence Harris, John Miller, Emory Keeley, Burton McNett, Grover Alexander, John Lane, Guy Lewis, Ray Crosby, and Harry Lewis, thereby discouraging membership in a labor organization, encouraging membership in another labor organi- zation, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. We find that the record does not support the allegations of the complaint that the respondent discriminated in regard to the hire and tenure and terms and conditions of employment of Louis Kartz, Alvin Roe, Paul Gray, Ray Kiser, Lawrence Huntley, and Hector Shaw thereby discouraging membership in a labor organization. 2. The agreement between the respondent and the Association and the crew reductions occurring between November 1937 and February 1938 Nineteen persons named in the amended complaint were released by the respondent between November 1937 and February 1938.59 The Trial Examiner found discrimination with respect to 12 e of the 68 Respondent Exhibit No. 17. 6° These employees are hereinafter sometimes referred to as charging employees. BO Gilman , Schnell , Bonter, Phillips , Gould, Hess , Crall, Chester Tucker , Arthur Tucker, Kaczynski , Jones , and Hall The respondent took exception to these findings. 187930-39-vol. 13-67 1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charging employees and recommended dismissal of the complaint with respect to the other 7.111 For the reasons which we set forth be- low, we agree with the Trial Examiner's findings as to the 12 em- ployees named in the complaint and disagree with his findings as to the other 7. We shall first discuss the employment history and union activity of, and various specific defenses in connection with, each of the charging employees and then in a separate subsection dis- cuss the affirmative proof of discrimination and the evidence common to all 19 charging employees. In the latter subsection we deal with the agreement between the respondent and the Association and their practice thereunder, to the extent that such agreement and practice affect the 19 lay-offs. (a) Employment history; union activity; specific defenses, Pipe Department-George Gould, Russell Thomas, Chester Kaczyn- ski, Arthur Tucker, Theodore Bonter, Chester Tucker, Richard Hall, and David Gilman George Gould was hired by the respondent on July 15, 1929. He became a first-class helper on January 16, 1934. T. H. Caldwell, superintendent of the pipe department, decided that Gould would never become a first-class fitter. Accordingly, on May 4, 1936, Gould became a tank-car washer without any reduction in his wage rate. He received the normal wage increases. His employment with the respondent was continuous from the date he was hired to the date of his release, November 19, 1937. Upon his lay-off he was receiving 70 cents an hour for 8 hours a day and a bonus. Between the date of release and March 29, 1938, the day he testified, Gould earned about $45.00. Gould's affiliation with the Union dated back to March 1937 when he was signed up by Henderson. Caldwell took him to Starks' office. Floyd Inman, in charge of the tank-car washers, testified that there- after he "suspected" that Gould was a member of the Union. Gould spoke in its favor and solicited other employees to join. There were nine tank-car washers in the pipe department. Cald- well and Inman selected three for the proposed lay-off list, Johnson, Slaybough, and Gould. Caldwell asserted that in releasing employees department heads "have always been allowed to judge either from the standpoint of ability or seniority," that with him "ability is the important factor," and that he placed these three on the lay-off list "entirely on the basis of ability to do the work that we required." 61 Thomas, Penney, Hildebrandt , Sherwood , Clipper, Schambers , and Lightowler. The Union took exception to these recommendations. THE DOW CHEMICAL COMPANY 1047 As to Gould's "ability to do the work" required of a tank-car washer, Caldwell testified that Inman reported that Gould " was dis- gruntled, that he just wasn't lining up and cooperating with the rest of the men out there on the job, that he didn't take orders easily, he didn't execute the orders as they were given to him, and if he was reprimanded because of his not finishing his job he always had some alibi to offer as to why he shouldn't do it, it was always somebody else to blame when the job went wrong." Caldwell gave no specific instances illustrative of any of these charges. He further testified that Gould could not be depended upon to do unloading work because he "didn't have the ability to go ahead . . . to be put on his own." Caldwell testified as follows in this connection : Q. When did he ever do anything wrong on one of these jobs? A. I can't tell you any particular instances. Caldwell also testified that Inman reported that Gould was "a bad influence" because he "always had an idea there was something wrong the way the job was being run." Again, Caldwell gave no concrete examples .112 Inman described the "kind of a workman" Gould was by asserting that "he started out as a fairly good workman," but always thought he was qualified for a better job. In reply to the question, whether he remembered what he told Caldwell about Gould, Inman testified to one occasion when Gould allegedly took an undue period of time to complete a job. From Inman's testimony it appears that during one summer Inman assigned Gould and Johnson the task of cleaning out dried lime from a tank car 30 feet long and 7 feet wide. It was a "rush job," since the car had to be put back into service within 2 days. By the end of the 2-day period they had not yet completed the job. A third man was added to the crew and the assignment was finished in 2 hours of overtime. Inman "ventured" to say that in these 2 hours "they put out more material than the other two had in 62 On cross-examination by counsel for the Board, Caldwell testified that Gould 's bonus was "comparable all the way along" with that of the other tank-car washers . On the, last day of the hearing the respondent recalled Caldwell to the stand as a rebuttal witness. Caldwell then testified that because some tank-car washers including Gould were suspected of slacking, the respondent substituted an individual bonus system for the group bonus system late in 1937. Caldwell testified as follows in this connection : "I can't recall those figures right off -hand, but I would say that the figures will show that there was a decided let up in his bonus" [ following the change in system ]. Pursuant to the request of counsel for the Board, Caldwell promised to produce the actual figures. Following a recess counsel for the respondent stated: "We haven't got the complete figures yet. I expect to have them in a little while." Thereafter counsel for the respondent stated that "those figures" were not available and offered to have Caldwell questioned on "some preliminary figures ." Following a discussion off the record, Caldwell testified in reply to a question from counsel for the respondent that he did not consider the bonus figures in selecting the tank-car washers for release . Thereupon counsel for the Board withdrew his request. 1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the two days." Inman purportedly held Gould and Johnson equally responsible for the delay. Inman admitted, however, that it was "a tough job," that because of the summer heat they could not work in the car continually, but had "to come out and get in the air, and cool off a little." The plugging of the trough was another source of de- lay for which Gould and Johnson could not be blamed. When the trough plugged one man had to get out of the car to remove the obstruction. The record does not reveal the year in which this inci- dent occurred. The respondent did not adduce evidence as to any other specific instances which allegedly reflected upon Gould's work. Dostrol, a subforeman in the pipe department, referred to Gould as among the best men in the department. Gould was usually placed in charge of two-man crews. His employment record made no adverse comments on his work. Driver told him his record was good. Although Caldwell asserted that he drafted the lay-off list entirely on the basis of ability, he testified that he had considered seniority when so requested by the Association, that sometimes the Association made this request and sometimes it did not. Gould had greater seniority than at least five of the tank car-washers retained. In connection with another case Caldwell testified that marital status was determinative. Gould was married and had three chil- dren. Gould testified that one of the employees, with less seniority than he, was retained although he was single. Caldwell submitted the November lay-off list which included the names of Gould, Slaybough, and Johnson to Branson who in turn submitted the list to the Association. Gould and Slaybough were both affiliated with the Union.118 The Association prevailed upon the respondent to retain Johnson. Caldwell testified as follows with re- spect to the retention of Johnson : Q. Then, Mr. Caldwell, there is one case where the M. C. W. A. was successful in keeping a man who had seniority and not as much ability as some of the others? A. That is right. The day before Gould and Slaybough were released, Ross, in calling for suggestions from the unit council of the construction department as to employees on that list who should not be laid off, stated that the Association had approved the release of "some fellows" in the pipe shop because they were not members of the Association. He stated further that "Fellows like George Gould belonged to the ,C. I. O. as well as ours and we weren't fighting for him." Russell Thomas was hired by the respondent on May 3, 1937, as a laborer in the pipe department. On May 21, 1937, he became a tank- car washer. He was released on February 4, 1938. At the time of 63 Respondent Exhibit No. 4. THE DOW CHEMICAL COMPANY 1049 his release he was receiving 66 cents per hour for 8 hours per day, and a bi-weekly bonus of about $5.00. Between the date of release and March 29, 1938, the day he testified, Thomas earned about $25.00 or $30.00. Thomas became affiliated with the Union on November 10, 1937,64 pursuant to Gould's solicitation. Prior to his release Thomas at- tended a number of C. I. O. meetings at Auburn. He spoke about the C. I. O. to fellow workers, arguing in favor' thereof. It will be recalled that the pipe department employed nine tank- car washers prior to the lay-offs. Gould and Slaybough were re- leased in November 1937. Davis was released in January 1938, ap- parently receiving a transfer to another department. In February 1938 the department released Thomas and Spitnale. Thus four tank- car washers remained. Caldwell considered Thomas to be a "very good" workman.65 Thomas had less seniority than three of the four tank-car washers retained. Whether or not he had less seniority than the fourth depended on whether a break in the employment record of the fourth was disregarded. Caldwell testified that he disregarded the interruption. Thomas was married.86 He lived outside Midland 67 The testimony of Caldwell and of Inman concerning the relative abilities of the tank-car washers is inconsistent. Thus Caldwell asserted that the four tank-car washers retained were about equal in ability. Yet the November selections, purportedly made exclu- sively on the basis of ability, resulted in the proposed lay-off of Johnson and in the proposed retention of the other three. It would follow that Johnson was not as good as the other three, and in fact Caldwell testified that "Johnson probably has the least ability" of the four. It would follow further that Thomas was better than Johnson because the November selection resulted in the proposed retention of Thomas and in the proposed release of Johnson. Yet Inman asserted that Johnson was equal in ability to Thomas. These changes in evaluations to fit the result cast suspicion on the bona fides of Caldwell and of Inman in asserting that union member- ship or activity was no consideration in the selection of Thomas. Our credulity is further strained by their testimony as to the criteria they applied in selecting persons to be released. Although Caldwell purported to consider only ability in drafting the November lay-off list, he claims that in the February lay-offs of tank-car washers he and Inman "discussed them both from the standpoint of ability and seniority." Yet he allegedly released Richard Hall, a e 4 Respondent Exhibit No. 4. The testimony as to the diversity of Thomas' experience was in conflict. Johnson and Koballa , both retained, did no unloading work. 61 One tank-car washer retained was separated from his wife. 61 One tank-car washer retained also lived outside Midland. 1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD phenate welder, in February entirely on the basis of ability. It is significant that he considered seniority when so requested by the Association. Although Caldwell did not state that residence was one of the criteria applied to the tank-car washers in February, Inman testified that one of the reasons for Thomas' release was his residence outside Midland. Johnson was retained in November only because of the interven- tion of the Association. It is hardly probable that this intervention did not influence the selection of tank-car washers to be released by Caldwell and Inman, in February. Theodore Bonter was first hired by the respondent on December 31, 1929. He was released' six weeks later in a crew reduction, reem- ployed on September 14, 1933, and released within 2 months in another crew reduction. On December 18, 1933, he was hired as a laborer in the pipe shop. Bonter became a second-class helper on August 1, 1934, and a first-class helper on April 1, 1936. On May 21, 1937, he was reclassified as a second-class helper, but with a 2-cents-per-hour increase in wages. At the time of his release, on January 14, 1938, he was receiving 70 cents per hour for an 8-hour day and a bonus. He earned no money between the date of release and March 28, 1938, the clay he testified. After attending several C. I. O. meetings Bonter joined the Union, in October 1937. He was not a member of the Association. Bonter's employment record contains no adverse comments on his 'work. In May 1937 the respondent instituted a more systematic classification of its employees. Bonter's classification was changed from first-class helper to second-class helper. Caldwell testified that at this time the subforeman dissuaded him from releasing Bonter. His hourly wage rate was increased from 68 cents to 70 cents. At least two second-class helpers received only 66 cents per hour. Cald- well characterized Bonter as "a rather dependable worker from the standpoint of being able to follow directions," but as one who would not qualify to "set the department on fire." According to Caldwell, Bonter was not outstanding and his ability to advance was "rather limited." Caldwell did not contend that he retained only helpers who were outstanding in ability. Several employees retained in the department and doing similar work had less seniority than Bonter. The weight which Caldwell purported to give to marital status is discussed below in connection with Kaczynski's case. Bonter was married and had two adopted children. Four second-class helpers who were single were retained in the department when Bonter was released, and later transferred to another department.68 11 Two of them received 4 cents per hour less than Bonter. THE DOW CHEMICAL COMPANY 1051 The pipe department planned to release one group of employees on January 14 and a second group on January 21. Accordingly, Cald- well drafted two lay-off lists for submission to the Association. Bonter was originally on the January 21 list. Emil Rinas, a first- class helper, on a different crew from that of Bonter, had been placed on the January 14 list. The Association prevailed upon the respond- ent to retain Rinas. Caldwell substituted Bonter for Rinas on the January 14 list. According to Caldwell, a person present at the nego- tiations between the respondent and the Association, leading to this change, not otherwise identified in the record, remarked that the sub- stitution was "o. k.," since Bonter was not "an M. C. W. A. member anyhow." Bonter was released on January 14. Rinas is still working for the respondent. Chester Kaczynski worked for the respondent without interrup- tion from January 30, 1934, until his release on January 14, 1938. He was transferred to the pipe shop on February 26, 1934. He became a first-class helper on December 1, 1936. His rate per hour increased from 44 cents to 80 cents during the period of his employment in the pipe shop. Kaczynski earned nothing between the date of release and March 30, 1938, the day he testified. Kaczynski joined the Union in August 1937. He attended C. I. 0. meetings prior to and after his affiliation with the Union, and he was one of the "C. I. 0. clique" in the pipe department. We have already 'adverted to the inconsistencies in Caldwell's pur- ported application of criteria like ability, seniority, and marital status in selecting persons to be released. His explanation of why he released Kaczynski is full of inconsistencies. Caldwell considered Kaczynski a good first-class helper who, if given the chance, would become a first-class fitter. He felt that Shakovski, a first-class helper in Kaczynski's crew, would never rise above the classification of helper, and that persons who could not improve should not be retained. Yet he retained Shakovski and released Kaczynski. Caldwell sought to explain this decision on the ground that Shakovski had greater seniority than Kaczynski 89 It is difficult to credit this explanation, in view of Caldwell's alleged posi- tion that persons who could not improve should not be retained. Further, it will be recalled that at one point in his testimony Caldwell purported to disregard seniority. At another he testified that he has considered seniority when requested to do so by the Association. Kaczynski, as a first-class helper, was admittedly better than the second-class helpers in his crew. Since this crew did finer work than the other two crews, the reasonable inference is that he was also con- sidered better than the second-class helpers in those two crews. Yet I They were both single. 1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD although Kaczynski was released, several second- class helpers were retained in the pipe department. It will be recalled that Caldwell purported to release Gould and Hall entirely on the basis of ability. Furthermore, seniority, the ostensible reason for preferring Shakovski to Kaczynski, could not have been the reason for preferring all the second-class helpers retained, because at least one and perhaps others came into the department after Kaczynski. Caldwell claimed that Kaczynski was not preferred to any of the second-class helpers in his crew because they were all married and had dependents. But there were at least four single second-class helpers who were retained in the department at the time of Kaczynski's release and who were later transferred to another department. Caldwell asserted that Kaczynski was not transferred to one of the other two crews in the department because these crews were also releasing men. But he transferred an unmarried second-class helper from one to another of the three crews reducing personnel. Also Rinas, a first-class helper on whose behalf the Association intervened, was transferred from one to another of the three crews in place of a second-class helper and thus saved from release. Arthur Tucker worked for the respondent at various times between June 15, 1923, and October 10, 1932. During this period Arthur Tucker's employment record was, on the whole, unsatisfactory.7° On March 28, 1933, he was hired as a laborer in the construction depart- ment. Arthur Tucker transferred to the pipe department on April 24, 1933, becoming a coil-maker helper on May 1, 1935. He became a first-class helper on January 4, 1937. At the time of his release on January 14, 1938, he was receiving 80 cents per hour for 8 hours a day, and a biweekly bonus amounting to about $10.00. He earned $17.00 between the date of release and March 30, 1938, the day he testified. Arthur Tucker joined the Union on November 9, 1937.71 Prior to his release he attended C. I. O. meetings and advocated the C. I. O. in speaking to fellow employees. Thus on one occasion several weeks before he was laid off, Warren, a representative of the Association for the pipe department, asked him to join the Association , suggesting that release would be the cost of a refusal. Arthur Tucker replied by offering to sign Warren up for the Union. Holmes, head of the Biphenyl department, persisted in asking Arthur Tucker whether he believed in the C. I. 0., and Tucker replied in the, affirmative. 70 The following comments were made on his work : 10-27-26-Can use in emergency only ; 11-27-26-No interest in work. Poor workman ; 12-31-26-Does not care to work Sundays. Poor worker ; 6-11-28-School . Wants job with more pay ; 7-20-28-Poor worker ; 1-4-29-Going to school ; 6-19-29-Unsatisfactory ; 7-13-29-Good man ; 10-5-29-Dissatisfied-Left without notice ; 10-10-32-Incompetency and stubborn. Arthur Tucker attributed this record to the fact that he was young and unsettled at the time. 71 Respondent Exhibit No. 4. THE DOW CHEMICAL COMPANY 1053• On the witness stand Caldwell volunteered the following general statement with respect to Arthur Tucker : "Arthur Tucker should never be a laborer. He has good mentality as he has demonstrated from the work he is taking, in his sketching work, his isometric work, and his blue-print work, which is excellent. I absolutely give him 100 per cent credit for it. But I saw as a laborer he just hasn't the ability to get along with other men easy." Caldwell asserted that Arthur Tucker's ambition to advance might be the reason for the moodiness Caldwell attributed to him. Caldwell testified as follows to Arthur Tucker's employment record in the pipe department : Arthur Tucker began as a coil laborer assist- ing a coil maker. At times he would "work to beat the band." At other times "he would have some kind of mood on him" and refuse to cooperate. When the coil maker complained, Caldwell "told him to stick it out a while" as Arthur Tucker had some experience and was thus preferable to a newcomer. Finally, "It got to the point where they were not getting along," so Caldwell reclassified him as a coil- maker helper to Anders who was responsible for all coil making and setting.72 Here again Tucker's work was "one day good and one day bad," so Caldwell decided to separate the two, and to advance Arthur Tucker to second-class coil maker with help of his own.78 Arthur Tucker spoke to Caldwell several times about the possibility of his doing something better and more lucrative than coil making in view of his schooling outside the plant. Caldwell promised to move him into the field at the first opportunity. Arthur Tucker followed Cald- well's suggestion that he enroll in the respondent's courses in isometric drawing and blue-print reading. When a vacancy occurred in Lang- ley's pipe-fitting crew in January 1937, Caldwell offered the job to Arthur Tucker and he accepted. Although Tucker had no experience in pipe fitting, Caldwell classified him as a first-class helper so as not to decrease his wage rate. The work in Langley's crew was rough and unpleasant. Arthur Tucker still thought he ought to advance and Caldwell "kind of agreed with him," so within 2 months he was trans- ferred to Scott's crew which did "the finest types of work." When the general 10-cent-per-hour increase was awarded, Arthur Tucker's rate moved up to 72 cents as compared with other first-class helpers who received only 62 cents. At the time of the general reclassifications in May 1937, Scott and Caldwell agreed he was not a real first-class helper. Caldwell, however, refused to reclassify him at a lower rate because his performance in the respondent's courses was "way above the average." Arthur Tucker remained a first-class helper under the 72 As a coil laborer , Arthur Tucker made 50 cents an hour, and as a coil repairman he made 54 cents an hour. The change to coil-maker helper represented a further increase to 58 cents an hour. 73 This change involved a further increase to 62 cents an hour. • 1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD new classification.74 Although "we have given him a chance to make good as a first-class helper . . . the same temporary moods are still with him." 75 Before Caldwell drafted the lay-off list to be submitted to the Association he conferred with Scott. Scott repeated what he had said in May 1937: Arthur Tucker "was not adapted as a pipe fitter." Arthur Tucker also had less experience as a pipe-fitter helper than the other first-class helpers in Scott's crew. From this recital of Caldwell's testimony, it appears that Scott's opinion of Arthur Tucker in January 1938 was the same as it was in May 1937. Caldwell had not adopted it in May. Arthur Tucker had advanced before this, pursuant to Caldwell's faith in him, and he continued to advance thereafter. There is nothing in Caldwell's testi- mony to indicate that he suffered a loss of faith in Arthur Tucker's abilities to "come along and make us a man." There is evidence show- ing the contrary. About a month after Arthur Tucker was released he spoke to Caldwell about his work and about getting back to work. According to Arthur Tucker, Caldwell "said I took interest in the work, was anxious to advance and was sure he would take me back any time they started hiring. He said it might be a long time." The record shows that Arthur Tucker was in the department much longer than at least one second-class helper, although the latter had more experience as a pipe-fitter helper. We cannot take seriously Caldwell's statement that Arthur Tucker was not as good as the second-class helpers, in view of his steady advance under Caldwell as a first-class helper. Arthur Tucker lived in Midland. The respondent's employment records show that he was married and had four children. It will be recalled that at the time of Arthur Tucker's release the department retained four single second-class helpers who were later transferred to another department. The day Arthur Tucker was released, he spoke to one of the dele- gates of the Association concerning his lay-off. This delegate in- formed him that the representatives of the Association, including Ross, Warren, and Carl Haefke, had conferred "on who to lay off and I was one of them." It will be recalled that Rinas was a first-class helper also in Scott's crew and that the respondent had arranged to release him on January 14, the day of Arthur Tucker's release. The respondent retained Rinas because of the intervention of the Association on his behalf. Chester Tucker was hired by the respondent on October 25, 1929, as a class "B" helper in the pipe department. He became a class "A" helper on May 1, 1930, and was laid off on January 29, 1932, his em- 74 At this time he received a further 4-cent-per-hour increase. 15 On November 15, 1937, he received an additional 4-cent-per-hour increase. THE DOW CHEMICAL COMPANY 1055 ployment record being marked "Reducing crew. Good man." He became a helper on June 23, 1933, a class "B" fitter on October 16, 1933, a second-class fitter on January 8, 1935, and a first-class fitter on March 1, 1935.76 At the time of his release on February 8, 1938, he was receiving $1.00 per hour for 8 hours a day and a bonus. He earned nothing between the date of release and March 30, 1938, the day he testified. Chester Tucker joined the Union on March 9, 1937.77 He also joined the Association the following summer. Chester Tucker was among the group in the pipe shop that used to discuss the C. I. O. during the noon hour. One day Conley, an Association official, re- marked "that he didn't see why in the hell we didn't wear our but- tons in there, we were so brave, we thought we had such a strong organization." Accepting the challenge, Chester Tucker wore a C. I. O. badge to work during the next 2 weeks. On one occasion Chester Tucker advocated the C. I. O. in a conversation with Butcher, his subforeman. Butcher replied that he was "on the right track" in favoring the C. I. 0., but that he had better keep his "mouth shut," since others had been discharged for exercising their "constitutional right" to talk as they pleased. With the renewal of Union activity in the fall of 1937, Chester Tucker distributed its handbills in front of the respondent's clock office. He engaged in this activity, of which Caldwell was admittedly aware, up until the time of his release.711 In November 1937 the pipe department employed 19 first-class fit- ters, none of whom had been released by February 1, 1938. Morrison, a first-class fitter, left the respondent's employ voluntarily, in order to prevent the lay-off of some other employee. Chester Tucker was the only first-class fitter whom Caldwell released at this time. Caldwell testified that Chester Tucker "has made exceptionally good rapid progress all the way up," that his "work has always been good," and that in ability "he was comparable to any man we had in the crew." Caldwell purportedly selected Chester Tucker for release be- cause "he was the last man up in the ranks and therefore he ought to be the first man down." Thus the asserted ground for Chester Tucker's release was his lack of seniority. However, two first-class fitters, Shaufner and Davis, had less seniority than Chester Tucker. Caldwell advanced special reasons for disregarding seniority as to them. Shaufner held a plumber's license, of value to the respondent in view of certain State 40 Chester Tucker asserted and Caldwell denied that Chester Tucker ever worked for the respondent in Wilmington , North Carolina . The conflict need not be resolved , since the point is immaterial. " Respondent Exhibit No. 4. 11 Chester Tucker 's wife was recording secretary of the Union 's Ladies Auxiliary. 1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD regulations. Davis' experience as a subforeman might prove advan- tageous to the respondent. The respondent, in its exceptions to the Trial Examiner's findings respecting Chester Tucker, asserts that "all of Caldwell's releases were based on his principle that `ability is the important factor' in a lay-off. . ." The pipe department released only three second-class fitters, retaining 27. Chester Tucker was admittedly a better work- man than the second-class fitters.i9 Caldwell alleged that Chester Tucker could not be made a second- class fitter in place of another second-class fitter because "a man that is moved down out of his rank is a disgruntled workman and we have had so many cases of it." It appears, however, that upon Chester Tucker's release his job was given to a subforeman because the department needed fewer subforemen. Caldwell's asserted theory of the "disgruntled workman" was thus not applied to the very person who supplanted Chester Tucker.80 Besides, the respond- ent retained persons at their old classifications to do work of a lower class. Thus second-class fitters were retained as such but assigned to helpers' jobs; and Rinas, a first-class helper, supplanted Bonter, a second-class helper. Chester Tucker lived in Midland. He was married and had chil- dren. Carl Haefke, Association delegate for the pipe shop, informed Chester Tucker that the Association had released him because of his Union activity. Caldwell's February lay-off list submitted to the Association com- prised 44 names including Chester Tucker, Emil Rinas, and John Haefke. The Association again intervened on Rinas' behalf and also on behalf of Haefke, and accordingly these two were removed from the list and are still working for the respondent. David Gilman was first hired by the respondent on March 20, 1926. When he left on May 8, 1926, his employment record was marked "Good worker." He worked for the respondent in July 1926 but only for 2 days, leaving because he was dissatisfied. He was employed again between September 9, 1927, and January 18, 1928. At the time of this release his employment record was marked "Good man." He was employed on February 16, 1928, and worked without interruption until his release on February 8, 1938. Gilman was transferred to the pipe shop on May 1, 1930. He became an apprentice welder on May 27, 1935, and a second-class acetylene 79 Caldwell asserted that Chester Tucker had greater seniority than some second-class fitters and "may have" had greater seniority than some of those retained. 80 While having been subforeman involved special experience lacking in the ordinary first-class fitter, having been first-class fitter involved special experience lacking in the ordinary second-class fitter. THE DOW CHEMICAL COMPANY 1057 welder on December 1, 1936. Between March and August 1937, he did work for the respondent in Wilmington, North Carolina. On October 1, 1937, Gilman and the other three second- class welders in the pipe department were reclassified as third-class welders, this, however, not being construed by the respondent as a demotion. On November. 15, 1937, they were again classified as second-class weld- ers. At the time of his release Gilman was receiving 86 cents an hour for 8 hours a day and a bonus. He earned nothing between the date of release and March 30, 1938, the day he testified. In February 1937 Gilman made a trip to Flint and participated in the circulation of petitions, in an effort to secure a union organizer for employees of the respondent. The record shows no further activ- ity by Gilman on behalf of any outside union until the respondent created the category of third-class welder and transferred the second- class welders to it.81 Gilman complained about the change and suc- ceeded in arousing dissatisfaction with it among other employees. This dissatisfaction caused him to declare that he was "going to sign up with the C. I. 0." He joined the Union on October 8, 1937.82 Thereafter he attended C. I. O. meetings and identified himself with the C. I. O. group in the pipe department. Gilman was also a mem- ber of the Association. Of the four second-class welders, Gilman was the only one released, although he had much more seniority than the other three. Gilman lived in Midland County. He was married and had two children. Caldwell asserted that he "picked the man that showed the least amount of ability . . ." In support of this purported evaluation, Caldwell testified as follows : He made Gilman an apprentice welder in May 1935 because he took "a particular interest" in Gilman and felt that Gilman had potentialities. He promoted Gilman to second- class welder at the end of the training period, feeling that Gilman was "fair" although not "outstanding." Caldwell, considering that Gil- man was "a good helper," sent him to Wilmington in March 1937 "to give him a break," and received reports that Gilman's work in Wilmington was "satisfactory." Upon Gilman's return to Midland in August 1937, Caldwell "noticed" that his work had "suffered ma- terially." In October Caldwell suggested to the welders in Gilman's grade that they show "the stuff" they had in them by attending the respondent's training courses. Gilman attended only one class whereas some of the others persisted, showing their desire "to get Si The respondent had set up certain classifications through the medium of so-called "proposals." (Respondent Exhibit No. 27 ) These "proposals" were signed by the re- spondent and by departmental committees formed as the result of the Thorpe activity hereinabove described The respondent revived the old Thorpe committee for the pipe shop to bring about the modified classification. 82 Respondent Exhibit No. 4. 1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ahead" by their "outside activities," by their "interest" in the work, and by their performance. Caldwell "felt that Dave wasn't giving me any response to the efforts that I was putting forth to him. He even went so far as to cause considerable comments around the shop among the boys relative to this re-classification." During the dis- cussion between Caldwell and the welders relative to the reclassifica- tion, Caldwell indicated that the others were in line for a raise, but that Gilman was not unless he received the recommendation of his foreman. In November 1937 Gilman, along with the other three in his class, received a 6-cents-per-hour increase and reclassification as second-class welders. At the time of Gilman's release, Caldwell retained three third- class welders, Rider, Coleman, and Kidel. Rider and Coleman each had a year's less welding experience than Gilman. Rider was un- married. Kidel did not become an employee of the respondent until long after Gilman. Kidel's welding experience was between 18 and 24 months as compared with Gilman's 32 months. In ex- plaining, on direct examination, why he released Gilman, Caldwell did not assert that Gilman was not more able than the third-class welders. On cross-examination, however, in reply to the question whether or not Gilman could do the work of third-class welders, Caldwell asserted : "He might have been able to do some of it. I don't think he could do it all." Caldwell did not specify what third- class work Gilman could not do. Gilman's employment record, in noting his release in a crew re- duction, made no adverse comments on his work.. According to Gilman, in a friendly conversation between him and Caldwell re- specting Gilman's recent release, Caldwell remarked that there was nothing wrong with Gilman's ability. Gilman had been a second-class welder- since the close of 1936. He had received the increases that the other second-class welders had received. His being sent to Wilmington indicated confidence in his work. He was classified as third-class in October only because the four second-class welders were so classified. When the other three resumed the second-class rating in November he did too. He received the same increase in November that they did. These facts best show the respondent's real evaluation of Gilman's ability, as being comparable with that of the other second-class welders and greater than the ability of the employees who were only third-class welders when Gilman was released. Thus Gilman was comparable to the other three second-class weld- ers in ability and had greater seniority than they.83 He had greater ability and more welding experience than the three third-class weld- 83 One second -class welder lived outside Midland. THE DOW CHEMICAL COMPANY 1059 ers, greater seniority than at least one of the third-class welders, and was married, whereas one third-class welder was not. Following his release, Gilman asked Hunter, his superior : "Do you know whether I was laid off because of my C. I. 0. activities?" Hunter replied : "Well, probably, but I don't want to say for sure." Carl Haefke, a delegate of the Association, informed Gilman that he had been discharged because of his Union activity. It will be recalled that Rinas and John Haefke were scheduled for release in February and that they were retained following the Association's intervention on their behalf. Richard Hall was hired on December 18, 1929, and released on March 5, 1932, his employment record being marked "Confessed to taking Co. materials." He was reemployed on September 26, 1933, as an acetylene welder in the pipe shop and worked without inter- ruption until his release on February 8, 1938. He was classified as a first-class acetylene welder on April 15, 1934. At the time of his release on February 8, 1938, Hall was receiving $1.00 an hour for 8 hours a day. He earned $20.20 between the date of release and March 25, 1938, the day he testified. Hall attended the meeting of the Union held on March 9, 1937. Asked by Conley to join the Association, he refused, stating that it did not give a member value for his dollar. He joined the Union on September 13, 1937,84 and was one of the C. I. 0. group in the pipe department. Caldwell knew he associated with persons known to be members of the C. I. 0. Hall was doing good work as a first-class acetylene welder. Ac- cordingly, in November 1936 he was assigned to phenate welding, a more difficult type of work performed by first-class welders. Cald- well and Johnson, Hall's foreman, testified that they discontinued Hall's phenate-welding assignments in January 1937 because the quality of his work was unsatisfactory, and placed him on ordinary first-class welding. Caldwell alleged that "85% of the welds we brought in on Dick Hall were not first-class welds" between February and June 1937. Johnson, on the other hand, asserted that Hall's work during this period was satisfactory, that thereafter and until his release he was assigned to phenate welding on and off depending on the amount of phenate-welding work the department had. John- son testified further, however, that most samples of Hall's ordi- nary first-class welding during this last period revealed unsatisfac- tory performance. The respondent produced no records relating to these samples or to Hall's ordinary first-class welding. The re- spondent, however, produced a record which set forth the number of phenate weld failures suffered from January 1937 to February 1938 m Respondent Exhibit No. 4. 1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inclusive. From Caldwell's testimony with respect to this record it appears that there were 315 phenate weld failures, the culpable welder being identifiable in only 97 instances. Of the 97 Caldwell traced 78 to eight welders; 20 to Hall; 15, 14, 13, 8, 5, 2, and 1, respectively, to the other seven. Caldwell and Johnson both agreed that Hall was able to do the work required of him.86 Caldwell asserted, however, that Hall was "indifferent" to his work, and Johnson asserted that he was "careless." Johnson testified further that he reprimanded Hall and that Hall admitted his carelessness. No adverse comments were made on Hall's work at the time of his release . The following excerpt from Caldwell's testimony is also significant in connection with his bona fide opinion of Hall 's work : Q. Would you hire Hall back if you had the work there? A. Yes. Hall had greater seniority than three first-class acetylene welders retained. Caldwell testified that two of them, Ball and Johnson, could do are welding which Hall could not do. The third, Carl Mitchell, came into the department and received the classification of apprentice in March 1934. It does not appear that Mitchell was ever assigned to phenate welding. Hall had greater seniority than two second-class welders retained,"" and also greater seniority than at least one third-class welder retained. While Caldwell asserted that Hall had the least seniority of the welders assigned to phenate welding, the record does not show that the respondent had determined for non- discriminatory reasons to release an employee from among the group doing phenate work or from among the first-class welders, and that therefore Hall was to be compared only with the phenate welders or even only with the first-class welders. Hall was married and had one child. In testifying with respect to Hall, Caldwell asserted that it was very important to consider only ability in the pipe department, and that in deciding to release Hall he considered only ability. We have already sufficiently adverted to Caldwell's shifts in position respecting the criteria he purported to apply in selecting employees to be released. 81 Caldwell testified as follows in this connection : "Do you believe that Hall is capable of doing the work that he was classified to do?-A Yes, sir; if he just would ." Caldwell testified further that the distinction between first and second class "means everything " Hall had been a first-class welder since April 1934 and the respondent never made any effort to reduce him to a lower classification . In fact Johnson considered his first-class work in the middle of 1937 good enough to justify his reassignment to phenate welding, and Caldwell stated his willingness to reemploy Hall . In view of these circumstances we cannot give substantial weight to Caldwell's testimony that he did not think that Hall could do the work of Newman , a second-class welder, who did not come into the depart- ment until March 1937. Caldwell's testimony to this effect affords a further illustration of Caldwell ' s predilection on the witness stand to make convenient ex post facto evalua- tions to fit the result 81 Second-class welders were assigned to first-class welding jobs. THE DOW CHEMICAL COMPANY 1061 It will be recalled that at the time of Hall's release, the Association succeeded in having Caldwell remove Rinas and John Haefke from the list of employees to be laid off by the pipe department. Other departments Service department-J. W. Jones, Ralph Clipper, and Clarence Schnell. J. W. Jones, a crew leader, had an unbroken record from July 28, 1933, to February 4, 1938. Upon his release he was receiving 76 cents an hour for 40 hours a week. He earned nothing between the date of release and March 28, 1938, the day he testified.87 Ralph Clipper, a truck helper; worked continuously from January 4, 1935, to February 4, 1938. Upon his release he was receiving 66 cents an hour and a bonus. He earned nothing between the date of release, and March 28, 1938, the day he testified. Clarence Schnell, a truck driver, began to work for the respondent on January 4, 1932. His employment was continuous between August 25, 1935, and February 4, 1938. Upon his release he was receiving 76 cents an hour and a bonus. He earned about $54 between the date of release and March 29, 1938, the day he testified. Peterson, a subforeman in the service department, was present when Jones signed up for the Union on October 8, 1937.88 Within a day or two Anderson, foreman in the service department, stated laughingly to Jones, "Well, you joined the C. I. 0." Jones replied affirmatively and produced his card. Oliver Beutel also dropped hints which Jones understood as references to his affiliation with the Union. During the year 1937 Jones had been a service-department representa- tive in the Association. Following his affiliation with the Union, Coons succeeded in having him replaced by another representative. Schnell joined the Union in June 1937. He attended meetings and solicited men to sign up with the Union. On several occasions Hollis, who was his subforeman as well as a representative of the Association, interrogated him with respect to his union affiliation. Schnell admitted his membership in the Union. Clipper, a member of the Association, joined the Union in August 1937 because of Schnell's solicitation on its behalf. Shortly thereafter Clipper deter- mined to participate in the distribution of Union literature. He took a number of handbills, but when he saw Post and other police officers looking at him, he became afraid and handed them back. At about the same time Schnell, Clipper, and Ross engaged in a con- versation in which Clipper stated that he did not wish to belong any longer to the Association and Schnell stated that Clipper was now 17 Prior to his release Jones enjoyed an income from a small business which he owned. This income , not increasing after he was laid off, does not represent wage earnings. 88 Respondent Exhibit No. 4. 187930-39-vol. 13-68 1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affiliated with a "bona fide" organization. From the context of the conversation it is clear that Schnell had reference to the Union and that Ross understood the reference. Toward the close of 1937 the respondent arranged to release a num- ber of employees from the service department. A group of em- ployees who were scheduled to be released argued in favor of having the respondent allocate the work rather than lay off men. The re- spondent finally adopted the suggestion. Though the record does not make entirely clear the circumstances leading to the decision to sub- stitute rotation for lay-offs in the service department at this time, it appears that Ross agreed to favor rotation and that he conferred with the respondent with respect to the matter. At this time Linton, a service-department representative of the Association, told Jones he had attended a meeting of the Association at which Coons had suggested Jones' release . When Hollis an- nounced the cancelation of lay-offs, he turned to Clipper and re- marked that Schnell had admitted belonging to the Union but that Clipper had "never come out and admitted it yet." Clipper, stating he had never denied it either, retorted : "You never asked me." There- after Schnell asked Ross what the Association had meant by trying to get him released during November. Ross replied that the Association had attempted to have him released instead of an Association "man"; that he "was a non-member and we didn't care whether he had a job at all or not." Ross also indicated to Clipper the opposition of the Association to him because he had made known his unwillingness to remain a member of the Association. At the beginning of February 1938 the service department sub- mitted to the Association for its approval a proposed lay-off list comprising 15 persons, including Jones, Schnell, and Clipper. The Association approved the list and these 15 employees were released from the service department on February 4. Clipper asserted that a majority of the 15 were members of, or sympathetic with, the C. I. O. Fullen testified as follows with respect to these lay-offs : He directed his foremen and subforemen to submit lists of persons whose selection for release they recommended. He then rated each of the 130 hourly employees in the department according to seniority, family status, place of residence, and ability'89 Coalwell, his superior, and Oliver Beutel, his assistant superintendent, participating in the ratings. Segregating the 30 employees whose total score was 13 or under, he 80 These ratings are listed on Respondent Exhibit No . 22. According to Pullen, one point was awarded for each year of service and for each dependent , respectively ; four points for residence in the city of Midland , three for residence in the county of Midland, one for residence outside the county ; six points were awarded for average, and 10 for the highest, ability. THE DOW CHEMICAL COMPANY 1063 selected for release the 15 who for the most part had been given the lowest ability ratings.90 Clearly the alleged system did not operate mechanically, automati- cally, inevitably, or with necessary bona fides, since the ability ratings, which were certainly not arrived at by any mechanical method neces- sarily excluding discriminatory factors, played a decisive role in the alleged system. Fullen asserted that the components of ability con- sidered were skill, initiative, attendance, and cooperation. These are not objective standards, and the testimony does not show that the respondent's supervisory employees purported to use them as such in evaluating and comparing the employees in the service department. Of course the Act requires that this ability rating should have been arrived at without regard to accomplishing any discriminatory pur- pose; in other words, that the ability rating should not have been a convenient pretext for eliminating from the service department em- ployees suspected of preferring the Union to the Association. Jones' total rating of 13, placing him on the list of 30, 'was brought about by his being given the low ability rating of four, two points below average. Jones' employment record made no adverse comment on his work. Although Fullen agreed that Jones was a good work- man, he allegedly rated Jones' ability at four because of Jones' exces- sive absences. Jones was absent 37 days in 1937 and 121/2 days in 1938 up to the time of his release. The evidence showed that absences in the plant averaged 31/2 per cent. Jones attributed the absences to sickness. The respondent allegedly saw a connection between some of Jones' absences and his store, attended by members of his family. Jones' foreman and subforeman did not recommend that Jones be released. This is significant as to the importance the respondent really attached to his absences and as to the respondent's real estimate of Jones' ability. It does not appear that Jones was reprimanded for his absences. Fullen asserted that Jones' ability rating would have been six or seven if not for his absences. This would have increased Jones' total rating above 13 so that the alleged system would not have resulted in Jones' selection for release. Schnell and Clipper were each given an ability rating of three, whereas N. Randall, truck driver, and Short, helper, were each given an ability rating of seven. The asserted significance of this difference of four points in ability rating may be somewhat gauged from the fact that a difference of four points, from 10 to 6, allegedly represented the difference between best and average. Thus the difference of four 9° Respondent Exhibit No. 23 lists the 30 employees thus segregated . The persons on this list whose ability rating was three , four, or five , except for one person with five, were selected for release . Also selected from this list for release were those who had both an ability rating of eight and a total rating of 12. 1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD points, from seven to three, purported to represent a very substantial difference in ability. The fact that Schnell and Clipper worked uninterruptedly for 21/2 years and 3 years respectively would suggest that they were not really considered as unsatisfactory as indicated by their ability ratings. Clipper's employment record contains no adverse comments. Schnell's employment record rated him as "satisfactory" and as "too slow" at different times in 1932; as "recommended" by the production manager in 1935; no adverse comments were entered thereon upon his release in 1938. In support of its ratings of the respective abilities of Schnell and Clipper, a witness for the respondent testified to company records showing that between August 2 and September 10, 1937, Schnell and Clipper working together hauled an average of 8.3 truckloads daily compared with a daily average for the Randall-Short team of 9.7 truckloads, a 15-per cent variation ; that between September 13, 1937, and January' 21, 1938, the Schnell-Short team averaged 8.6 truckloads daily whereas the Randall-Clipper crew averaged 8.9 truckloads daily, a 3-per cent variation; that between January 24 and February 4, 1938, the Schnell-Clipper crew hauled on the average 7.5 truckloads each day and the Randall-Short crew averaged 8.1 truckloads daily, a 7- per cent variation. The respondent's records do not show whether or not each truckload included in the averages was a full load. The respondent's contention is that the conditions which are sym- bolized by the numbers in evidence, led to the ability ratings, thereby proving the non-discriminatory character of the ability ratings. Since the significance of the figures is not clear on their face, and since the testimony does not reveal a clear claim as to what their signifi- cance is, the respondent has not placed its contention in a strong light. We have tried to weigh the evidence respecting this contention, how- ever, and have reached the following findings. Each ability rating purports to represent the respondent's evalua- tion' of an individual employee's ability. Each of the six averages purports to represent the performance of a two-man team. These averages would not tell the supervisory employees anything about the individual ability of each of the four employees under consideration unless they assumed that the team score represented some measure of individual performance; e. g., the average for a team might be taken as the average of each member on the team. If this assumption was indulged the averages in evidence do not afford any support for the assigned ability ratings. Since the 4 months from September 13, 1937, to January 21, 1938, are by far the longest period of the three separate periods and there THE DOW CHEMICAL COMPANY 1065 fore the most representative of performance," we shall discuss the figures for this period first. Randall and Clipper each scored 8.9, Schnell and Short scored 8.6 each. In other words Randall's per- formance was 3 per cent better than Schnell's, and Clipper's was 3 per cent better than that of Short. We are not told why a 3-per cent variation as between Randall and Schnell should result in ability rat- ings of seven and three respectively. Further, if this result did fol- low as to Randall and Schnell, then it should also have followed as to Clipper and Short. Yet the very reverse occurred : Clipper received an ability rating of three and Short an ability rating of seven. Since Short received an ability rating of seven, we cannot understand why on a nondiscriminatory basis Schnell, his partner, did not get the same rating and why Clipper did not also get at least a seven rating. Neither do the scores for the whole period from August 2, 1937, to February 4, 1938, provide any basis for the ability ratings.92 Randall averaged 9.0 as compared with Schnell's average of 8.4, a variation of less than 7 per cent ; Short's average was 8.8 as com- pared with Clipper's average of 8.65, a variation of less than 2 per cent. We are not told why, on a nondiscriminatory basis, these small variations should have resulted in the very substantial disparities in ability ratings between Randall and Short on the one hand and Schnell and Clipper on the other. One way to test the real signifi- 91It would be unreasonable to contend that the brief first period and the extremely brief third period were more representative , and we do not understand the respondent so to contend . Thus the respondent , in its exceptions , states that the Trial Examiner should have found "that the six months period from August, 1937 over which such records were kept was sufficiently representative as to form a true basis of their worth to the Respondent ." We discuss the whole 6-month period , infra. 12 The record reveals the daily average for each team for each of the three periods which together constitute the 6 -month period from August 1937 to February 1938. On the assumption set forth in the text, the daily average for the team represents the daily average for each of the two members of each team , referred to In this explanation as the daily average. In order to calculate the daily average for the whole 6-month period we proceed as follows : multiply the number of days in each of these three periods by the daily average for each of the three periods, respectively , to obtain the total number of truckloads carried by each team and consequently by each member of each team , in each of the three periods ; then add the three totals for each person to obtain the total number of truckloads carried by each person during the whole 6-month period ; finally, divide each sum by the number of days In the whole 6-month period to obtain each daily average for the whole 6-month period. The following chart exhibits the results of these calculations Randall Schnell Short Clipper Period Daily Truck- Daily Truck- Daily Truck- Daily Truck- average loads average loads average loads average loads Aug. 2-Sept 10 (30 days) ------ 9 7 291 8 3 249 9 7 291 8.3 249 Sept. 13-Jan . 21 (95 days) ------ 8 9 845 5 8 . 6 817 8 6 817 8 9 845 5 Jan. 24-Feb. 4 ( 10 days) ------- 8 1 81 7. 5 75 8 . 1 81 7.5 75 Aug. 2-Feb. 4 (135 days) ------- 9 1,217.5 8 4 1,141 8.8 1,189 8. 65 1,169.5 1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cance of the variations in performance is to compare the perform- ance of Randall and Short, since they were each given an ability rating of seven. Randall's average was 9.0 as compared with Short's average of 8.8, a variation of somewhat over 2 per cent. Thus a more than 2-per cent variation as between the respective performances of Randall and Short did not have enough significance to result in any difference in their ability ratings. Yet with a less than 2-per cent variation as between the respective performances of Short and Clip- per, Short received an ability rating of seven and Clipper an ability rating of three. The above reasoning is based on the assumption that a team score represents the performance of each member of the team. Such as- sumption must depend upon a belief that each member of the team contributes his full share and only his full share of the work. If the supervisory employees did not entertain this belief with respect to Schnell and Clipper and Randall and Short, then they would not in- dulge the assumption. In that case the figures would tell them noth- ing about individual performance. We conclude from this line of reasoning also that the figures provide no support for the ability ratings. If the supervisory employees really indulged the assumption as to the first and not as to the second period, then they could conclude that Schnell and Clipper were not as good as Randall and Short,93 and then conclude further that changes in team scores upward as to Schnell and Clipper respectively during the second period do not rep- resent improvement in Schnell and Clipper respectively, and that changes in team scores downward as to Randall and Short respectively do not represent deterioration as to Randall and Short. The figures could justify acceptance of the assumption for the first period and its rejection for the second period only if the respondent acted on the belief that all four persons' abilities remained constant throughout the period.84 The following testimony of Fullen, standing by itself, although ambiguous, might indicate that Fullen purported to act on this belief : ea We cannot tell whether this 15-per cent variation occurring in the first period is fairly represented by a difference of four points in ability rating. 91 A certain plausibility is lent to such a belief by the change in averages accompanying the January shift in helpers in that the Randall-Short team then did better again than the Schnell-Clipper team . Whether or not the belief has some plausibility , however, is not of significance since we find from the testimony that the supervisory employees did not purport to act on any such belief . Besides, closer scrutiny shows that the belief of constancy is not too well supported by the change after January 21, for the figures show that Randall 's truck hauled less between January 21 and February 4 than it did between September 13 and January 21 and less also than it hauled between August 2 and Septem- ber 10 The extreme brevity of the third period makes its figures too unreliable for the drawing of inferences concerning ability shown. THE DOW CHEMICAL COMPANY 1067 Q.... Schnell and Clipper had 8.3 and Schnell and Short had 8.6. What conclusion would you draw from that, if any? A. Well, the addition of Short to Schnell had brought up their loads. Q. Then Randall and Short had 9.7 and then Randall and Clipper had 8.9. What would you draw from that? A. Well, that would indicate that Clipper's addition to Ran- dall's truck caused [sic] to go down. Other parts of Fullen's testimony reveal, however, that in fact he did not purport to act on the belief of constant unchanging abilities. Thus Fullen testified that he inferred from the figures that when Schnell "was changed around why he did better work." He asserted further that Schnell "improved when we put another helper [Short] with him." Finally, he asserted that he did not consider Schnell for lay-off in November because "he was doing what I thought was ac- ceptable work." We conclude that the supervisory employees did not believe that all four persons' abilities remained constant throughout the period, and that therefore they did not infer from the figures that the assumption was to be accepted for the first period but rejected for the second. If they did accept the assumption for the first period but not for the second, their evaluation of the abilities of the four per- sons would-have been made independently of the figures and therefore the figures would be irrelevant to the respondent's defense. Thus this line of reasoning also leads to the conclusion that the figures in evi- dence do not afford any support for the ability ratings assigned to Randall, Short, Schnell, and Clipper. We reject the contention that the figures in evidence of average truckloads hauled support the ability ratings assigned. We must therefore reject the consequent contention that these figures in evi- dence prove the nondiscriminatory character of the ability ratings. The evidence reveals a credible explanation for the reduction in the daily average of the Randall crew and for the increase in the daily average of the Schnell crew accompanying the September shift in helpers. The first period for which the respondent supplied fig- ures on daily averages is the period following the affiliation of Schnell and Clipper with the Union. Immediately prior to this September change of crews the foreman or subforeman called Ful- len's attention to the performance of the Schnell-Clipper team, and Fullen accused them of stalling on the job. They in turn charged Hollis with discriminating against them in the distribution of work. According to Schnell and Clipper, Hollis' attitude toward them changed after the August conversation between Ross, Schnell, and Clipper hereinabove mentioned. From their testimony it appears 1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he began "picking" on them,, giving them small orders so that it took longer to get a truckload. Hollis did not testify with respect to these matters. Although Fullen testified that he did not recall their complaining about Hollis, he asserted that he ordered the shift in crews in order to be fair. Schnell testified that after the change of crews there was a diminution in the number of small orders as- signed to him. As the respondent's records show, the performance of the two crews was practically identical following the September shift. Hollis' favorable attitude toward the Association and his antipathy toward the Union, his interrogation of Schnell with re- spect to Schnell's union affiliation, his failure to testify as to these matters, the consistency of the changes in the scores with the charges of discrimination, and the mutual corroboration afforded by the tes- timony of Schnell and Clipper, lead us to conclude that Hollis did discriminate against Schnell and Clipper in the distribution of work because they were affiliated with the Union. Fullen asserted that Clipper was shifted back to Short on Jan- uary 21 "at the request of" Randall who "kept complaining of Clip- per leaving the job all the time and not helping him on his job." It is not clear from this testimony whether Fullen purported to remove Clipper as Randall's helper because he believed Randall's complaint or simply because Randall complained. Clipper testified that he and Randall used to argue about the C. I. 0., Clipper defending it and Randall being "dead against it." Clipper testified further that Randall would get "nervous" and angry in the course of these argu- ments, and that one day Randall "was seen called into Mr. Fullen's office." According to Clipper, Randall "would always come and tell me what he saw Fullen about. This time he never said nothing." Clipper also asserted that Hollis informed him of the shift 2 days after Randall went to see Fullen, and that Hollis' explanation there- for was "I was teasing Randall too much." Neither Randall nor Hollis testified as to these matters. We cannot find any support it the evidence, respecting the circumstances surrounding the January shift, for a conclusion that the ability rating assigned to Clipper was bona fide. Fullen testified that it was not usual for a truck helper to work as long as Clipper did without being promoted; that about 15 helpers with less seniority than Clipper were made drivers because Fullen considered them abler than Clipper; and that on `one occasion, the date of which does not appear, when Clipper asked why he was not made a driver he was told he must first become a good helper. On the witness stand Fullen named Schnell as 1 of the 15 persons who had pushed ahead of Clipper. Yet, he gave them identical ability ratings and asserted that Schnell was "a very poor workman," that THE DOW CHEMICAL COMPANY 1069 he would not call Schnell a good workman , that Schnell "figured the company owed him a job." But he testified that he did not consider Schnell for lay-off in November because "he was doing what I thought was acceptable work." 95 The credibility of Fullen's pur- ported evaluations suffers from their variability or indefiniteness or both . And it is not substantially enhanced by his further testimony that the foreman and the subforeman recommended the lay-off of Schnell and Clipper . Failure by Jones' foreman and subforeman to recommend his lay-off did not prevent his lay-off . If Fullen gave weight to the recommendation of the foreman and the subforeman of Schnell and Clipper , it would be material to inquire into the bona fides of their recommendations . Neither testified with respect to these matters. Fullen testified that "Schnell and Clipper were the first two on the list" recommended for lay -off by Hollis. This is significant in view of Hollis' discriminatory allocation of work, hereinabove mentioned. Machine department-Pearl Sherwood and Maurice Crall. Pearl Sherwood was first hired by the respondent on August 6, 1919. He was laid off on March 25 , 1920 , his employment record being marked "Recommend rehiring." He worked for two short periods in 1926 and in 1927 respectively . In 1927 his employment record was marked "Leaving town. Good man but a rover." On December 28, 1936, he became a machinist 's helper in the machine department. On May 21, 1937 , he was classified as a second -class machinist 's helper. His rate per hour on December 28, 1936, was 52 cents. He received the 10-cent per hour general increase in March 1937 , a 4-cent per hour increase in May 1937 and another 4-cent per hour increase in July 1937 . At the time of his release, on November 12 , 1937, he was receiving 70 cents per hour for an 8-hour day. Sherwood earned $56 between the date of release and March 26, 1938, the day he testified. Sherwood was a member of the Association . He joined the Union on September 10, 1937 , and spoke in favor thereof . Murphy, Sher- wood 's foreman and brother-in-law, warned Sherwood on several occasions against advocating the Union . Sherwood quoted Murphy as saying : "They know it in the big office and they are after you." During November 1937 the respondent decided to release four men from the machine department . James Palmer , assistant superintend- ent of the department , testified that he, Norman Best, the super- intendent , and Murphy participated in the-selection of persons to be laid off in March 1937 , that there was no definite rule for choosing those to be released , that they considered departmental seniority and ability , and that a combination of the two determined who was to be laid off. Best, testifying in connection with Sherwood 's release, 161t will be recalled that six points were awarded for average n ork 1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asserted that he chose employees for lay-off largely according to his own discretion , that he did not follow set rules , and that seniority governed only "if all other things were equal." Murphy suggested to Best that Sherwood be released assertedly because "he wasn't the type of man that I expected we could advance into the next classification ." Best testified he felt Sherwood should be released because "he was one of the newer men of the classification in the crew" and because "we were quite certain he would never qualify as a first class machinist ." There were several intermediate steps between Sherwood 's classification and that of first-class machinist. Sherwood 's employment record made no adverse comment on his work, simply noting that the department was "Reducing crew." The rate schedule for the machine department provided that a second-class machinist helper should start at 60 cents per hour, receive a 6-cent increase at the end of 6 months and a 4-cent increase at the end of another 6 months.96 Pursuant to this schedule, Sher- wood's rate was increased to 66 cents on May 21 , 1937 .97 Then 2 months, instead of 6 months , later, his rate was increased to 70 cents.38 This unscheduled raise does not appear to be consistent with the assertions of Best and Murphy as to Sherwood 's ability. In November there were eight second -class machinist helpers.99 Sherwood was the only one released at that time . Garner Hardy's plant and departmental seniorities are less than those of Sherwood by 2 days . His rate was 4 cents per hour less than that of Sherwood. According to Murphy the other six were not junior to Sherwood in plant seniority . Four of the six, however , had less departmental seniority than Sherwood . Thus Ed McNett came to the department in August or September 1937 . Leland Smith came to the department in September 1937 at 66 cents per hour . Norman Phillips and Jack Murphy came to the department in October 1937 at 66 cents per hour. 100 In connection with these second-class machinists helpers who had substantially less departmental seniority than Sherwood, it will be recalled that Palmer mentioned departmental seniority as the type considered. Sherwood was married and had two children. "Respondent Exhibit No. 27 97 His former rate, 62 cents, was established prior to the drafting of the above- mentioned rate schedule. 98 Driver testified that according to his information this 4-cent increase was granted following a "commotion" by Sherwood because another second-class helper was raised from 64 cents to 70 cents in May 1937. Sherwood testified that he offered to have this 4-cent increase canceled but that Best replied that Sherwood was worth more money than some of the ethers. sn Ed McNett, Williams, Chartier, Hardy, Leland Smith, Jack Murphy, Norman Phillips, and Sherwood. 199 Jack Murphy, son of the foreman, appears to be in a somewhat different category. As an apprentice under the tutelage of the educational department, he was supposed to learn the trades in several different departments. THE DOW CHEMICAL COMPANY 1071 Best tried to release one Skerm , a helper in the scale -repair shop of the machine department , in November , because he was unable to do his share of the work. Skerm was not released until February 1938. Best attributed the retention of Skerm to the efforts of the Association. illawrice Crall was first hired by the respondent on October 11, 1927, as a machinist helper in the machine shop. He became a lead -burner helper on April 3, 1928. On March 1, 1930, he became a lead-burner apprentice in the lead shop. On October 16, 1933, he was classified as second-class lead burner. In December 1933 he did work for the respondent in North Carolina. A day or two after his return to Mid- land in February 1934 he was discharged by Henry Fisher, his fore- man. His employment record was marked "Some unsatisfactory work. Can't get along with Fisher." Thus prior to this discharge Crall had more than 6 years' continuous service with the respondent. He was reemployed on July 17, 1935, as a laborer in the pipe shop. On February 1, 1936, he became a tank-car washer. On May 21, 1937, he was classified as a second -class repairman . Between June and September 1937 he did work for the respondent in North Carolina. On September 28, 1937, he was transferred to the machine department as a second-class lead burner, his rate per hour being increased from 72 cents to 90 cents. He was released on February 4, 1938. Thus prior to this release Crall's continuous service extended over a period of 21/2 years. At this time he was receiving 90 cents per hour for 8 hours per day. Between the date of release and March 28, 1938, the day he testified, Crall earned about $8 or $9. Crall was a member of the Association, and prior to his departure for North Carolina in 1937 he represented the tank-car shed of the pipe department. Crall joined the Union on March 9, 1937. Crall testified that his immediate foreman in the machine department once asked him how much it had cost him to join the Union and that he replied he had paid $2. Crall's employment record attributed his release of February 4, 1938 , to the fact that the department was "Reducing crew." Best told Fisher, foreman, to select a helper and a lead burner to be laid off. Fisher selected Weirman as the helper to be laid off . As for the lead burner to be released, Fisher testified there were two possibilities, Larsen, a first-class helper doing lead-burner work, and Crall. Fisher testified that Larsen was a "misfit" apprentice, that he would never qualify, that he "did his best but his best wasn't good enough." Fisher further testified that Crall's work after September 1937 was an im- provement over the work that had caused his discharge in 1934, that he had "learned a lesson," that "he stuck to the job and he tried it," that although he would never make a first-class lead burner, he was 1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "all right" in his own classification, and that Fisher had nothing against his work after September 1937. Fisher testified he "didn't care" whether Larsen or Crall was selected. Best and Fisher placed Larsen on the lay-off list. Ultimately, however, Larsen was retained and Crall released instead. We discuss below (page 1088) the circum- stances surrounding this substitution, and the retention of Skerm "a week or so" longer than Crall. Dip/ienyl department-Edwin Hess and Louis Sch,ambers. Edwin Hess' employment with the respondent dates back to 1919 with short breaks from time to time. During this period he held many jobs in several different departments of the respondent's plant. Among other things he was a crew leader and a subforeman. On February 3, 1936, a crew reduction in the O. C. P. N. department caused his transfer to the diphenyl department as a para-still operator. He was laid off on November 7, 1937. At this time he was receiving 76 cents per hour for an 8-hour day and a bonus, which averaged be- tween $10 and $15 every 2 weeks. Hess earned nothing between November 7 and March 29, 1938, the day he testified. At the time of the Thorpe balloting in March 1937, Hess' sub- foreman or shift foreman asked for Hess' vote on the type of organi- zation he wanted. Hess replied he would vote for the plant union if the ballot were not going to be secret. Early in March 1937 Holmes, head of the diphenyl department, called Hess' shift into his office and advised them that a plant organization was to be preferred to the C. I. O. since the cost would be $1 per year instead of $12 per year "to keep John L. Lewis in a nice big home." Hess joined the Association and in April succeeded Phillips as delegate thereto from the diphenyl department. Hess was a militant dele- gate. He told Holmes that under the Act Holmes was not permitted to talk against unions. He helped secure the passage of a motion by the convention of delegates instructing the board of directors of the Association not to agree to compromises until they were first submitted to the convention. His militancy and that of other em- ployees in his department is revealed by their reaction to the dis- charge of Emil Phillips on April 22, 1937. Holmes denied that Phillips was discharged for union activity, asserting that the real cause was his deficient production. The employees in the depart- ment resented the discharge, however, feeling that the superintend- ent's explanation was not bona fide. There was some talk of pro- testing the discharge by starting a sit-down. While Hess dissuaded them from taking this step, he promised to, and did, help present Phillips' grievance to the management and to the convention of delegates. The respondent offered to give Phillips work in the aniline department. At a meeting of the convention on May 19, THE DOW CHEMICAL COMPANY 1073 Hess and other delegates demanded that Phillips be reinstated to his old job in the diphenyl department. The prevailing sentiment, however, was in favor of having Phillips accept the respondent's offer, Hess being among the last to yield. In the course of this dis- cussion Van Meter remarked that he would not want to work in the diphenyl department, since it "is nothing but a nest of C. I. O.'s" and "is the worst nest in the plant." Thereafter Hess, deciding that "we couldn't get anywhere with this company union on grievances or different things like that," began to make inquiries about the C. I. O. Hess, along with some others, went to Saginaw to interview Saxton, organizer for the United Mine Workers of America, District No. 50. Upon their return to Midland, they assembled a number of C. I. O. sympathizers for a talk by Saxton on the organization he represented. A local was estab- lished. On August 9 Hess became a member of the local, and was elected recording secretary. Beginning in October, frequent open meetings were held in Midland. Sometime in August, Ross learned that Hess had become active in the C. I. O. Ross made an effort to determine the identity of others interested in the C. I. O. At a meeting of the convention of delegates of the Association held on August 11, Ross delivered a report on C. I. O. activity among members of the Association, stating that an Association delegate was soliciting members thereof to attend C. I. O. meetings at his home, that some C. I. O. members were present at the meeting of the convention of delegates that night, and that he understood the diphenyl department to be 100 per cent C. I. O. Ross turned to Hess and asked him what he knew about it.b01 Hess denied that all the employees of the diphenyl department had become members of,the C. I. 0., denying also that he was as yet a member. Van Meter urged Hess to surrender his position as delegate. Hess agreed to seek a vote of confidence from the employees in his depart- ment. The convention resolved to take up "the matter of rumored C. I. O. organization" at a subsequent meeting. Within a day or two Hess convened a meeting in his department, explained that he was accused of being a member of the C. I. 0., stated he would neither confirm nor deny the accusation, and called for a vote as to whether he was to continue as delegate. The outcome of the vote was favor- able to Hess' remaining as delegate. Hess' employment record characterized him as follows : "Average intelligence-Works steady-Does not cooperate." Hubert Fruehauf, head of the diphenyl department, was the only superintendent called to testify with respect to Hess' ability. Fruehauf testified that "Hess 101 According to Ross, there was no need to "smoke" Hess out , since Ross "knew where he stood then." 1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was a good worker. There is nothing wrong with Hess' work. He was always a good worker, as far as I was concerned..." The diphenyl department released three other para-still operators besides Hess. One of them was not transferred upon his release from the diphenyl department. Hess was a better worker than he was. The other two, Singles and Wright, were transferred. According to Fruehauf, Hess was about the same as Singles and probably not quite as good as Wright. Fruehauf thought that Hess broke Wright in on the para- still equipment. Hess was the first para-still operator to receive the maximum rate for that job. No evidence was produced to show that Hess did not cooperate. In response to the question whether there "was anything wrong about" Hess, Fruehauf suggested that demotion adversely influences an employee's attitude and effort to learn a new job, that Hess was disappointed because at one time he held a more important position, that of clerk under one Rainey. The record shows that Hess held this job between 1928 and 1933. In 1933 he was made a crew' leader, and in 1934 he was laid off, his employment record being marked "Reemploy." He was reemployed within 4 days. Between the time he held the clerk's job and the time of his last release in 1937, his employment record contains no adverse comments. Fruehauf could give only one example of Hess' attitude, namely, in 1936 Hess suggested a change in the operation of the plant that would have resulted in Hess' getting a better job. That Hess' atti- tude was not an undesirable one is shown by the fact that Fruehauf thought well enough of the suggestion to mention it to his superior and agreed that Hess thought the plan would improve operations. Louis Schambers, a sulfonator operator, was first employed on April 12, 1930. He worked without a break from March 13, 1933, until November 23, 1937, when he was released. He received 76 cents per hour for an 8-hour day and a bonus amounting each week to about $6. Schambers earned -about $50 between the date of release and March 25, 1938, the day he testified. As a departmental representative of the Association, Schambers actively supported the grievance of Phillips, whose employment his- tory and union activity we set forth below (page 1076). His persist- ent questioning of Ross with respect to this matter caused Ross to accuse him of "pumping." Ross became suspicious of him because he asked a lot of questions about the Association. Schambers joined the Union in August at the same time as Hess.102 He spoke to employees about the Union. The customary method of curtailing operations in the diphenyl department was to stagger the lay-offs, with the two sulfonator opera- 102 Respondent Exhibit No. 4. THE DOW CHEMICAL COMPANY 1075 tor jobs among the first to be discontinued. The November lay-offs followed this pattern. Accordingly, early in November Schambers and Case, the other sulfonator operator, were removed from these jobs and assigned to miscellaneous tasks in the department, incident to curtailing operations.103 Schambers' employment record noted that he was a "fairly good operator." Fruehauf testified that before the lay-offs of November he was informed by one of Schambers' fellow-workers that Schambers had been trying to retard production that season. No claim is made, however, that this accusation induced the respondent or any of its supervisory employees to release Schambers from the diphenyl de- partment, to refuse to recommend him, or to fail to transfer him to another department. Schambers' employment record did not mention the accusation or make any adverse comment on Schambers' work. The employment records of Hess and Schambers attributed their lay-off to the curtailment of operations by the diphenyl department. Many employees so released, however, were transferred to other de- partments, whereas Hess and Schambers were not. Driver testified that he did not transfer Hess because he could not find a superintendent who would employ Hess. According to Driver the superintendents merely said they did not want him, although "some" stated his work was not good enough. Driver's testimony in this connection was extremely vague. He did not name the superin- tendents who gave ability as the reason nor did he specify why they felt Hess' ability to be deficient. Fruehauf was the only superintend- ent who testified as to Hess' work, and his comments were favorable. Presumably on the basis of Hess' employment record, Driver testified to a personal willingness to employ him. On the pay day following his release Hess asked Driver for employ- ment, stating he would take any job. According to Hess, in the ensuing conversation, Driver stated that the reason for his not having been transferred was his union activity. According to the testimony of the respondent's witnesses, em- ployees were released to the employment department two or three at a time, and Holmes did not report Schambers' name to Driver until the time of Schambers' release. Driver asserted that he did not know anything about Schambers until the day Schambers came to 1°a Schambeis had asked for as much work as possible . Holmes testified that he cau- tioned Schambers that the chances of transfer were better at the outset of a shut-down than later . In this connection it may be noted that an employee in the construction department was retained longer by that department in order to transfer him when a vacancy appeared . Schambers nevertheless asked to stay but did request that Holmes arrange for his transfer to another department According to Holmes, he recommended Schambers to Brines , superintendent of the phenol department , and Brines refused on the ground that he had discharged Schambers many years before . Schambers ' employment record fails to reveal any such discharge. 1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Driver's office and stated that he was to be released the following Monday, and asked for another job. Driver informed Schambers there was nothing available. Driver testified that Schambers did not receive a transfer because there were no vacancies when he was re- leased. :104 Against these assertions we must weigh the admitted fact that Driver knew the department was shutting down, thereby making employees available for release or transfer. On another occasion Driver, knowing that Caldwell had scheduled a lay-off, told Caldwell that he, Driver, could transfer four men to another department if Caldwell would release that many to him immediately. Moreover, Driver's office was not the only one concerned with effecting the transfer to other positions of employees about to be laid off. The diphenyl department was under the jurisdiction of one Putnam, production manager in charge of several different depart- ments. It was Putnam's practice to try to get other jobs in his division for persons in his division scheduled soon to be laid off. Thus it was his practice to direct his superintendents to check with the supervisory employees of a department in which a lay-off was occur- ring, stating they would "probably find some good men." Neither Putnam nor any of his superintendents took' the stand to testify why they did not select Schambers. Holmes thought well enough of Schambers' work to keep him on miscellaneous jobs after the sulfon- ator operation ceased, and to give him a favorable recommendation. Upon being told by Driver that there was nothing available, Schambers asked Ross what the trouble was. Ross replied : "Well, you belong to the C. I. 0.)1105 Aniline Department-Endl Phillips was first hired by the respond- ent on February 15, 1923. He worked on and off between that date and January 31, 1927. During this period the comments on his work were as follows : "Good worker," "Very good operator. Odor made him sick," "Has been a good man, but laying down on the job lately." He worked continuously from August 8, 1927, until April 22, 1937, his rate per hour increasing from 44 cents to 86 cents. From August 1, 1933, onward he was shift foreman 'Ile in the diphenyl department. 104 Driver allegedly construed an anti-hiring rule embodied in Dow's letter of September 22 as normally preventing employment unless Driver could place the person "immediately, in other words , to call it a transfer " Apparently an employee was given a job a week or two after his release from the diphenyl department , the record not showing whether or not he was hired pursuant to any provision limiting the anti-hiring rule. As we find below ( Section III , D, 2, (b)) the anti -hiring rule was applied discriminatorily. 101 The Association's participation in the lay-off program Is described below in detail. Ross testified that the directors of the Association did not bargain with the respondent with respect to releases from the diphenyl department since they "felt" the respondent was "doing the right thing." 106 This job was later classified as head operator. THE DOW CHEMICAL COMPANY 1077 The respondent discharged Phillips on April 22, 1937, his release slip stating he had done "very few honest full" days of work "in the last several months" and had not taken' the responsibility expected of a shift foreman. The respondent introduced evidence in support of its contention that this discharge on April 22, 1937, was for cause, and we disagree with the Trial 'Examiner's finding that it was for union activity. On May 28, 1937, the respondent reemployed Phillips in the aniline department as a second-class mechanic. He was laid off on Novem- ber 24, 1937. He received 80 cents 107 per hour for an 8-hour day and a bonus of between $12 and $19 each 2 weeks. By March 29, 1938, the day he testified, Phillips had earned 3 days' pay from the W. P. A. In the spring of 1937 Phillips joined the Association, becoming its delegate for the diphenyl department. He was not favorably im- pressed with the development of the Association. Thus upon his return from one of the meetings which he had attended during work- ing hours without loss of pay, he reported to employees in his depart- ment that at the meetings they "only chew the rag" and that "she's going to hell." On a subsequent occasion he reported "that it had went to hell." Phillips' interest in the C. I. O. dated back to March 9 when em- ployees were discharged following the union meeting of the night before. He went to Flint and to Saginaw, making inquiries about the C. I. O. "to see whether we wanted it up here or not." Although Phillips did not advocate the C. I. O. at this time, "there would be things come up that I would tell them I had found out what was in the papers wasn't so." Without mentioning any names Phillips sug- gested that the Association affiliate with a bona fide national organiza- tion. He also spoke in favor of engaging the services of a lawyer who understood unionism. Upon his discharge on April 22, 1937, Phillips ceased to be a dele- gate in the Association. As has been noted above Hess, succeeding Phillips as delegate, strove to restore Phillips to his former position in the diphenyl department, characterized by Van Meter as a C. I. O. "nest." After he was "coaxed and begged" Phillips finally consented to taking the job in the aniline department, this being the department in which Ross worked. About a week after his reinstatement he signed a card for membership in the Union .1011 He attended meetings of the Union prior to the November release. Phillips asserted that im Fruehauf testified that this job was less important than the one from which Phillips had been discharged However, the 6 cents per hour differential may have been attribut- able to the difference between so -called "shift work" and so-called "day work." 108 Respondent Exhibit No. 4. 187930-39-vol 13--69 1078 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD "practically everybody in the plant knew" he was affiliated with the Union. Curtailment of production by the aniline department involved the release from that department of six employees. Phillips was in-, eluded among these six. Fruehauf characterized him as a slow worker and did not take into account his years of service with the respondent, assertedly because of the discharge in April. Phillips was the only second-class mechanic in the department. Upon his release from the aniline department, he asked Fruehauf for other employment. Fruehauf testified to his reply as follows : I told him that I could not, I wasn't the employment manager, and I told him at that time to go to the M. C. W. A., they had gotten him his job back for him once, and let them try it again. Thereupon Phillips approached Ross as to the chances of employment. Ross stated in reply that not many jobs were "developing." In the course of the conversation Ross asserted that any pressure which the Association would bring to bear would be only on behalf of loyal members, that Phillips was not a loyal member, and that the Associ- ation would "shut down the plant" if Phillips received a job before "qualified" loyal members.109 Driver testified as follows : Q. On his record will you rehire Mr. Phillips? A. You are kind of putting me on the spot, but I think it is unlikely that I would hire Mr. Phillips again. Stockroom-Arnold Lightowler was hired by respondent on Feb- ruary 13, 1934, and worked without interruption until his release on November 12, 1937. From April 1, 1935, onward he was a clerk in the stockroom. At the time of his release he was receiving 74 cents per hour for 7 hours per day and a bonus. He earned $50 between the date of release and March 25, 1938, the day he testified. The re- spondent gave Lightowler a temporary job at ice-cutting which lasted from January 5 to January 16, 1938. Lightowler joined the Association. Thereafter and prior to his release Lightowler attended meetings of the Union. He testified that he joined the Union on September 12, 1937.110 Lightowler's employment record made no adverse comment on his work, simply noting that he was involved in a crew reduction. When the stockroom department received instructions to curtail operations, Luman Bliss and Roy Smith, superintendent and assistant superin- 101 Fruehauf testified that he called the attention of the aniline unit council and of the directors of the Association to the names of the persons to be released by the aniline department and there were no "repercussions" from the Association. 110 The records of the Union date his application for membership from November 10, 1937. (Respondent Exhibit No. 4.) THE DOW CHEMICAL COMPANY 1079 tendent of the department, respectively, decided to eliminate the night shift. Lightowler was not on the night shift. Since the night shift comprised four persons, and since the department had been instructed to release only three employees-this number later being reduced to two-it would appear that Lightowler was not scheduled to be laid off. Bliss and Smith, however, selected four persons from among whom to choose those to be released , three from the night shift and Lightowler. Bliss asserted that he and Smith picked the four least capable em- ployees in the department and that Lightowler was the least capable of all. This assertion seems somewhat strange in view of the fact that Lightowler's employment record does not mention any criticism of Lightowler at all. In support of his claim Bliss adduced his report on the stockroom department, dated October 7, 1937.111 This report was based on a study of the department undertaken by Bliss because there "seems to be a general feeling that the other fellow isn't doing his share of the work." Bliss reported : "Apparently this feeling has some foundation in some cases." Bliss found there was "entirely too much time spent in the whole warehouse on outside interests" and that employees not employed in the stockroom department, were "frequent callers and take up considerable time in conversation with the clerks." Although Bliss agreed that their interruptions were disrupting the warehouse and might explain why the employees were not doing their work, Bliss made no effort to prevent their coming into the warehouse, nor did he seek to have them reprimanded. Bliss concluded that the essential defect was lack of supervision and recommended the appoint- ment of a foreman. With respect to Lightowler the report stated : He does not seem to be very busy but is pretty clever in covering up the fact. Before this new setup he worked solely on pipe covering which would actually' take three hours a day. Now he helps with the pipe stock orders some and also with the gasket cutting. It looks to me as if he still has from one hour to an hour and a half to two hours a day that he could be doing a lot more useful things than talking and covering up his lack of work. The work is there to do. It looks like a lack of super- vision. He is capable and strong enough to do a good job if his efforts were directed in the right channel. He filled 14 tickets the first afternoon, 74 the second day, and 45 the third. The last day or two he has spent most of his time at the gasket table along with the day shift man. This is very unusual to need two men on the gasket cutting. He is easily led or misled. In Bliss did not inspect the report at the time he picked the men to be released. 1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In connection with this last comment Bliss testified as follows : Q. Well, did that affect his work in any way? A. Why, I wouldn't say that it did. Thus the report indicates Lightowler's ability to do a good job and ascribes the deficiencies in performance to the lack of supervision, a criticism directed at the whole department. The comments on Lightowler were not less favorable than those on Bitten who was not placed on the list of four. When Lightowler inquired about his impending lay-off, Bliss stated his work was satisfactory but "Roy Smith's the boss." Roy Smith did not testify as to Lightowler's case. With respect to the four on the list Bliss testified that there was not enough difference in their ability to make any difference. Light- owler was married and had one child whereas the two on the list who were retained were single. Bliss asserted that he did not con- sider seniority at all. Lightowler had greater seniority than four employees retained in the department. The list of four picked by Ross and Smith was submitted to the Association. The Association approved the release of Lightowler and another. The respondent retained the other two. We discuss below (page 1085) the circumstances explaining the Association's selection of Lightowler. Semi department-Leon Penney was first hired by the respondent on July 24, 1928. Since that time there have been various breaks in his employment record. On November 18, 1936, he became an operator in the semi department. On December 1 he was classified as an apprentice operator and on May 21, 1937, as a fourth-class operator. On July 6, 1937, he was advanced to third-class operator. He also did the work of a mechanic's helper during this period. Between November 18, 1936, and November 19, 1937, the date of his release, his rate per hour increased from 50 cents to 72 cents. Be- tween the date of release and March 25, 1938, the day he testified, Penney earned $30. Penney was a member of the Association. He joined the Union on October 8, 1937, and attended its meetings. About 2 weeks prior to his release he distributed union literature in front of the clock room of the respondent's plant. This occurred two or three times. A few days before his release he engaged in conversation about the Union. In November 1937, the semi department, an experimental labora- tory, demolished a fifth of its total equipment to make way for the construction of a different unit. This involved the release of a number of employees from that department. Joseph Britton, superintendent of the department, testified that in selecting employees to be released he considered suitability, ability, THE DOW CHEMICAL COMPANY 1081 and seniority. Britton did not explain what he meant by suitability, or give any estimate of Penney's suitability, or describe any specific circumstances from which we might infer his estimate of Penney's suitability. Britton asserted that he had had no personal contact with Penney's work. Once an operator graded Penney's work as assistant to him at "D" the lowest rating he gave. The date of this rating, however, does not appear. Apparently Penney was rated at other times, but Britton did not give these ratings. Arnold, Penney's foreman, testi- fied that Penney was an acceptable operator, that he was not a hard worker, that he did all that was required of him. The complaints against him were "just routine." At times he would leave his job to talk to other employees but Arnold did not consider this a serious offense. Once when Penney's attention was called to his talking too much, he replied he did not have enough work and Arnold gave him more to do. Penney's employment record contains no adverse com- ments on his work. Whereas Penney, a third-class operator, was released, fourth-class operators were retained. Arnold's explanation for this apparent dis- regard of ability is that he was primarily interested in the smooth functioning of his department, that Penney "does not fit into team play as well," and that "there is just a little bit of a trace of friction when he was working with other men." Arnold did not think that Penney caused "actual disagreement or anything like that." Arnold characterized his distinction between Penney's individual work and Penney's team work as "probably a fine distinction." Arnold gave no instances that might give significance to the distinction, nor was he specific as to the alleged friction. Brewster, a third-class operator who was not released, had 3 days less seniority than Penney. Graham, another third-class operator retained, had 2 weeks less seniority than Penney. Pockrand was only a fourth-class operator and he had about 41/2 months less seniority than Penney. Yet he was retained. Britton and Arnold drafted a list of 10 employees from among whom the persons released were to be chosen. Penney and Pockrand were on this list. Arnold presented this list to the Association which indicated that it had no objection. Thereafter Arnold informed the Association as to the four selected for lay-off. Penney was one of the four. Again the Association interposed no objection. When Penney asked for Ross' aid in securing employment, Ross told him to report later, stating he had heard Penney "was C. I. 0." and he would have to study Penney's record. Thereafter Ross told Penney he was "a C. I. O. agitator," that Penney would not get a job with the respondent so long as he, Ross, had anything to do with the Association. 1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon his release Penney asked Britton for employment. Britton told him he might get a job in a month or a month and a half, when the new unit was completed. Before its completion Britton learned of the anti-hiring rule stemming from Dow's letter of September 22. Thereafter when Penney asked for work Britton mentioned the anti-hiring rule.112 Construction department-Edward A. Hildebrandt was first hired on August 2, 1935, as a second-class carpenter in the construction department. He was laid off on November 30, 1935, his employment record being marked "Good worker. Overrated as a carpenter." He worked continuously as a second-class carpenter between May 15, 1936, and November 19, 1937, his rate per hour increasing from 56 to 90 cents. Between November 19, 1937, the date of his release, and March 30, 1938, the day he testified, Hildebrandt earned about $245.00. Hildebrandt had been a member of the A. F. of L. for many years. He became a member of the Association about April 1, 1937. He joined the Union on December 1, 1937, not quite two weeks after he was released from the construction department. The construction department operates seasonally. Accordingly it curtailed operations in November 1937. The respondent ascribed Hildebrandt's release to this crew reduction. Turnquist, superin- tendent of construction, asserted that Hildebrandt was just average, that he was among the lowest in ability, and that others on a par with him or lower were laid off. His employment record charac- terized him as a "fair worker." Although Turnquist allegedly drafted a lay-off list based primarily on ability, that list was submitted to the Association for its approval, and changes were made therein following arguments by the Associa- tion based assertedly on marital status, seniority, and place of resi- dence. Hildebrandt, who was divorced, had two children and lived in Midland County. He had greater seniority than eight second- class carpenters who were retained at this time. A number of these were unmarried. We discuss below (page 1086) the Association's part in Hildebrandt's release. . (b) Proof of discrimination The respondent attributes the lay-offs to a decline in its business. It appears that Dow 'decided to retrench, that he instructed A. P. Beutel, assistant general manager, to reduce crews, and that pursuant to these instructions several hundred employees were released between November 1937 and February 1938.113 Accordingly we find that the z" Lounsberry , released with Penney, was given employment in the chlorine department in March 1938. Driver testified that Lounsberry was especially fitted for this job and that pursuant to Dow's letter his employment was approved by Dow and Beutel " Respondent Exhibit No. 25. THE DOW CHEMICAL COMPANY 1083 respondent was engaged in a bona fide reduction of crews. In so finding, however, we have by no means disposed of the allegations with respect to the 19 persons named in the complaint, since we must consider further whether or not the respondent's method of selection of the employees to be released involved discrimination on the basis of union membership or activity. The respondent's supervisory employees testified that in determin- ing which employees were to be laid off, they applied various criteria, including ability, seniority, family status, and place of ,residence. It appears from the following testimony of A. P. Beutel, however, the respondent applied the further criterion, membership in the Associa- tion : Q. Take the case of two men, all factors with respect to ability, seniority, residence and family status are exactly the same, of those two men, one man is a member of the MCWA and the other man is not a member of the MCWA, now if it came to a release and one man had to go, which man would be released? A. The man that did not belong to the MCWA. Q. Why is that? A. We have an agreement with MCWA. 114 By virtue of the agreement dated June 12, 1937, recognizing the Association as the exclusive representative, the respondent agreed to consider ability; seniority, family status, and place of residence, in -changes of personne1116 The respondent, however, construed the agreement as protecting only members of the Association. The agree- ment as construed therefore granted an unlawful preference to mem- bers of the Association. The agreement explicitly prescribed a discriminatory choice of `the standards to be applied by providing that in "any change of per- sonnel, seniority rights will prevail wherever possible to the best interest of the Company and the members of the Association." 118 From Ross' testimony with respect to the formulation of this clause it appears that the parties to the agreement deliberately intended to bring about a discriminatory result : Q. Do you interpret the [italicized] clause to mean that seniority will not be a factor if the man does not belong to your _organization? A. No; that isn't true, Mr. Bott. Q. Well, the contract is for the benefit of your members only, isn't it? 114 Respondent Exhibit No. 8. 115Ibid. (Article III, Section 3). 216 Emphasis supplied. 1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Well, the original contract was supposed to mean that. I guess I was responsible for that change myself-nobody thought much about it. I was reading that over time and I said, "Whoa, we don't want that for the other fellows. We want it for mem- bers of the Association." I never happened to think of it again until now. As we have found above in Section III C the respondent formed, dominated, and assisted the Association in order to thwart the Union_ The agreement represented the culmination and the institutionaliza- tion of these unfair labor practices. It is therefore not surprising that the agreement provided and was construed by the respondent to provide for continued encouragement of the Association and for con- tinued discouragement of the Union by discrimination in employment. That employees were selected for release upon a discriminatory basis is further revealed by the following provision of the agreement : 117 In a general reduction of force within a department, or the clos- ing down of a department, the Company will notify the Unit Councils involved and will negotiate and endeavor to agree with said Unit Councils upon the proper men to lay off. The respondent thus recognized exclusive authority in the Associa- tion, which was hostile to the Union, to participate in selecting em- ployees for release. The consequence of such recognition was in- evitably discrimination against members of the rival Union; 118 and by this recognition the respondent further revealed its intention to encourage membership in the Association and discourage membership in the Union. Besides, by allocating to the Association a share in the determina- tion of the employees to be released, the respondent imparted to the Association a portion of the respondent's power to discharge, thereby assuming responsibility for the exercise by the Association of this power. The practice and policy of the Association with respect to the lay-offs therefore assumes significance. As we have noted, dis- crimination by one union against its rival is inevitable. The Asso- n7 Ibid. (Article III, Section 2). "I That one union with power to select employees will discriminate against members of a rival union and against its own "unloyal" members is taken for granted by the Associa- tion. This is shown by the following excerpt from the exceptions taken by the Association (page 5 ) to the findings made by the Trial Examiner in this connection : "The fact that Mr. Van Meter and Mr. Ross are prejudiced against the C I. O. and make no attempt to. defend C. I . O. members should be to their credit. It shows that they are loyal to the organization of which they are officers . Can it be said that the C . I. O. officers would do any different if the respective positions of the two organizations were reversed? . . . CAN II BE SAID THAT A MAN IS ENTITLED TO ANY CONSIDERATION WHATSOEVER IF HE JOINS. ONE ORGANIZATION THEN MAKES EVERY EFFORT TO JEOPARDIZE THE VERY EXISTENCE OF SUCH ORGANIZATION?" THE DOW CHEMICAL COMPANY 1085 ciation acted upon its policy of discrimination at the very threshhold of the lay-off program by having the clause in the agreement, provid- ing for negotiations between the respondent and the several unit councils as to lay-offs, amended so that the board of directors of the Association supplanted the unit councils.119 The Association re- -quested the amendment, among other reasons, in order to forestall those unit councils suspected of being favorable to the C. I. 0. The policy pursued by the Association appears from the testimony ,of Ross who played an active part in the lay-off negotiations as well as from the credible, and in many instances, undisputed, testimony of other witnesses: The Association bargained with the respondent to prevent the release of employees, only if they were members of the Association and provided they were not also suspected of being sym- pathetic towards the Union. The Association "just didn't fight for" Union sympathizers whom the respondent proposed for lay-off. Thus the respondent submitted four names from the stockroom department to the Association although only two persons were to be released from that department. The Association approved the release of Arnold Lightowler, a charging employee, and another, the de- partment retaining in its employ the other two on the list. There can be no doubt that the Association selected Lightowler for release because of his leanings toward the Union. Upon submission of the list of four names to the Association, Ross asked the unit council if there was any question about fellows in there that might not belong to the union, [i. e. the Association], that we didn't want to be fighting to lay off some of our members to protect some that didn't support us, and asked if they had anybody in the depart- ment that might be suspicioned as working against us. 'The unit council informed Ross that Lightowler attended a "lot" of meetings of the Union, but that that did not mean he was a member since "a lot of our fellows" who are not members of the Union attend its meetings. Elwood Smith, one of the unit councillors, stated : "We know how he talks but still don't believe he belongs." Ross "testified that following this conversation he had his "doubts about Lightowler and how hard we were going to work to protect his job." Elwood Smith and Lightowler testified, and we find, that Ross told them that the directors of the Association approved Lightowler's release because he was a member of the Union. Another illustration of the discrimination practiced by the re- spondent through the medium of the Association is afforded by the case of Gould, a charging employee, who was a tank-car washer in the pipe department. In November 1937 the pipe department sub- '"The amendment did not prevent the board of directors from calling upon unit councils for aid in the negotiations. 1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mitted to the Association the names of three tank-car washers, Gould and Slaybough, members of the Union, ,and Johnson. Te day be- fore Gould's release, Ross made the following statement to the unit council for the construction department : ... over in the pipe shop there were some fellows that weren't members, we simply O. K.'d it, weren't interested in fight- ing for them. Fellows like George Gould belonged to the C. I. O. as well as ours and we weren't fighting for him. If they saw any names on the list working against us it might be a good idea to O. K. them. Pursuant to the Association's intervention the pipe' department re- tained Johnson, releasing the two members of the, Union. As indicated by Ross' statement to the unit council of the construc- tion department, the lay-offs in that department provide a further example of the respondent's giving effect to the Association's selec- tions upon a discriminatory basis. The construction department sub- mitted a list of 24 names to the Association. Ross instructed the unit council to "0. K." the release of those "working against us." In the conference between the respondent and the Association with respect to this list, the superintendent of the construction department "gath- ered" that the Association was trying to protect its members. The con- ference resulted in the retention of several employees whom the re- spondent had proposed to lay off but who received the support of the Association. Hildebrandt, a charging employee was among those re- leased. Branson, head superintendent over several departments and representative of the respondent in lay-off negotiations with the Asso- ciation, told Hildebrandt to see the representative of the Association,. since they had approved his release. Albee, a director of the Asso- ciation, when asked why the Association had "voted" to release Hilde- brandt, replied that there was no room for anybody who belonged to the C. I. O. Upon Hildebrandt's denial that he was a member of the C. I. O. and upon his insistence that he was affiliated with the A. F. of L., Albee remarked that Hildebrandt was "too much of a union man at heart." 120 Pursuant to Driver's advice Hildebrandt also saw Ross a number of times. Ross stated there was no use in employing C. I. O. members. Hildebrandt denied membership in the C. I. O. and exhibited his A. F. of L. "credentials." Ross then stated he did not believe Hildebrandt to be a member of the C. I. O. and promised to consider Hildebrandt's case with the directors. On December 2 or 3 the directors promised to look into his case. On December 8 Ross ap- proached Van Meter. Van Meter stated : "Well, we have no use for- szo This conversation occurred on November 30. The following day Hildebrandt joined' the Union. THE DOW CHEMICAL COMPANY 1087 anybody that belongs to the C. I. 0. or any man that is in favor of the outside unions." The same method of discrimination was applied to the employees in the machine department. That department tried to release Skerm, a helper in its scale-repair shop, in November 1937, but retained him because the Association intervened on his behalf. At the same time the machine department released the charging employee, Sherwood, a second-class machinist helper, who was a member of the Union. In February 1938 the machine department submitted a list of names to the Association. The superintendent testified that this "might have been the time" that Skerm was included. At any rate the evidence shows that the respondent and the Association conferred with respect to Skerm and that the machine department retained Skerm 121 "a week or so" longer than it retained Crall, a charging employee who was a second-class lead burner. Crall, who had formerly done repair work, was a member of the Union. In view of the Association's policy it is clear that the Association's power of, selection, devolved upon it by the respondent, was exercised in the machine department so as to dis- criminate on the basis of union membership and activity. In the pipe department, the respondent submitted to the Associa- tion a list of employees proposed for release on January 14, 1938. The list included among others, the names of Rinas, Kaczynski, and Arthur Tucker, all first-class helpers. Kaczynski and Arthur Tucker were members of the Union. Pursuant to the intervention of the Associ- ation, the respondent retained Rinas. Kaczynski and Arthur Tucker were released. In February 1938 the pipe department proposed to the Association the lay-off, among others, of Rinas and John Haefke. The Association intervened on behalf of these two, persuading the respondent to retain them. The Association approved the release of the charging employees Thomas, tank-car washer, Chester Tucker, fitter, Hall and Gilman, welders, all four being members of the Union. Carl Haefke, Association delegate for the pipe department, informed Gilman and Chester Tucker that the Association had released them because of their Union activity. In view of these facts and in view of the Association's policy, it is clear that the Association approved the release of the charging employees in the pipe department because of union membership or activity. im During the examination of A P. Beutel , the Trial Examiner asked whether Skerm was "a party to this action." In the course of the ensuing colloquy the Board attorney remarked : "I am making no charge about the man." It is evident that the Board attorney referred simply to the fact that the Board did not allege discrimination by the respondent against Skerm . The Trial Examiner made no ruling . Following the colloquy the examination of Beutel with respect to Skerm continued . The facts concerning Skerm set forth in the text are those testified to by Best and Beutel, supervisory employees of, and witnesses for, the respondent. 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In acting to prevent the lay-off of loyal members, the Association did not hesitate to seek the release of other employees in their stead. Thus in November the construction department submitted a list of .proposed releases to the Association. Pursuant to negotiation with the Association, the respondent, whose superintendent of construc- tion "gathered" that the Association was trying to protect its own members, removed some employees from the lay-off list and placed others thereon. With respect to one member of the Association whose release from the construction department the Association refused to sanction, the evidence is explicit that the respondent agreed to transfer him to a different job in the construction department in place of an employee who was not a member of the Association. The Association reported this as well as similar triumphs in its newspaper. The Association's effort to have loyal members supplanted by others on the lay-off lists proved successful in the case of Bonter, a second- class helper in the pipe department and a member of the Union. The pipe department's January 14 lay-off list submitted to the Association contained the name of Rinas, first-class helper, and did not include Bonter's name. At the Association's request, the pipe department removed Rinas from the lay-off list and agreed to substitute another for Rinas. Accordingly Caldwell selected Bonter for inclusion in the January 14 list.122 Caldwell, superintendent, testified that he chose Bonter as the substitute because Bonter was on the January 21 lay-off list anyway. Assuming the truth of this testimony, the usig- nificant facts remain that the Association, pursuing its policy of dis- crimination, prevented the release of Rinas and secured the premature release of a member of the Union. It is significant also that Rinas is still employed by the respondent. Crall, a charging employee, was also the subject of this type of dis- crimination. In February 1938 the machine department drafted a lay-off list which included Larson's name but not that of Crall. On February 3 there occurred an informal departmental meeting of mem- bers of the Association to consider what was to be done about the proposed lay-off of Larson, who was a member of the Association. Merrill, an employee, suggested that a member of the Union be re- leased instead. Asked if he knew- of any, he pointed to Crall and stated, "he is." Shortly thereafter the meeting adjourned. Larson informed Best, superintendent of the department, that he had taken up with the board of directors of the Association the mat- ter of his proposed lay-off. He requested Best not to release him, asserting that he had several small children, that his wife was in the 112 The following excerpt from Caldwell 's testimony is interesting in this connection : "Q. Now, after it was agreed upon that Bonter would be the man to go did you hear anyone say that that was all right anyway because Bonter was not a MCWA member? "A. I heard somebody say it. I couldn 't tell you who." THE DOW CHEMICAL COMPANY 1089 hospital, and that he was living from hand to mouth. Best agreed to and did discuss the matter with Branson. They decided to retain Larson and to release Crall instead. Best testified as follows in this connection : Q. Then would you say that the only reason why you kept him in preference to Crall was that he had given you this hard-luck tale about his family? A. Yes, because Fisher had stated there was very little differ- ence between their ability. When Fisher, foreman in the department, notified Crall of his release, on February 4, Fisher stated that his work had been satisfactory. Best asserted that the Association never bargains with him with respect to lay-offs : "They go to anyone that is higher up." 123 Best testified that the Association did not approach him with respect to Crall's release . He testified further to a belief that the question of the Association did not come up in his conversation with Branson concerning Larson. Although Best was "always" allowed to use his own discretion as to whom to release, he did not substitute Crall for Larson until after the discussion of the matter with Branson, his superior. Branson, one "higher up," did participate in lay-off negotiations with the Asso- ciation. Branson did not testify as to these negotiations. Best agreed that the Association "might have" participated in the decision to release Crall, but did not know whether or not it had. Thus the department's proposal to release Larson was followed by an informal departmental meeting of the members of the Association at which it was suggested that Crall be substituted for Larson in the lay-off, since Crall was a member of the Union. The matter was called to the attention of the Association directorate which did bar- gain with respect to lay-offs and whose policy it was in these lay-offs to protect loyal members of the Association albeit at the expense of members of the Union. The reasonable inference from these facts is that the Association did intervene with the respondent on Larson's behalf, wielding its delegated power against Crall or failing to protect him against the effects of its exercise. That the Association's inter- vention contributed to the change is hardly open to doubt in view of the Association's success in similar instances. The conclusion that Crall was released by the respondent in Larson's stead because the Association supported Larson's claim is corroborated by the circum- stance that Best made the change only after conference with Branson. whose duty it was to represent the respondent in lay-off negotiations sw However , Best admittedly conferred with A. P. Beutel and with representatives of the Association with respect to Skerm's case. 1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the Association, even though Best normally released employees on his own discretion. The Association's determination to prevent Larson's release although this involved Crall's release followed from its policy of protecting loyal members at the expense of members of the Union. Accordingly, we find Crall's release was due to the Association's authorized participation in changes of personnel upon a discriminatory basis. Despite the general retrenchment program between November 1937 and February 1938, some vacancies appeared and were filled by the respondent. The respondent sought to fill these vacancies by transfer from within the respondent's plant rather than by hiring persons not already on the pay roll. Accordingly, when a particular depart- ment arranged to curtail its personnel, the respondent made some effort to transfer employees affected thereby to another department before releasing them completely from its employ. The Association also pursued a policy of discrimination with respect to transfers. Thus when Phillips, a charging employee who was a member of the Union, asked Fruehauf, superintendent, for other employment on the day of his release from the aniline department, Fruehauf told him "to go to the M. C. W. A., they had gotten him his job back for him once, and let them try it again." Whereupon Phil- lips approached Ross. Ross stated that any pressure which the Asso- ciation would bring to bear would be only on behalf of loyal members, that Phillips was not a loyal member, and that the Association would "shut down the plant" if Phillips received a job before "qualified" loyal members. A number of employees affected by the shut-down of the diphenyl department in November 1937 received transfers to other departments. Schambers, a charging employee who was a member of the Union, was among the employees released by the diphenyl department and not transferred. Upon being told by Driver that there was nothing avail- able, Schambers asked Ross what the trouble was. Ross replied "Well, you belong to the C. I. 0." Hess, another charging employee released by the respondent from the diphenyl department at this time instead of being given a job in another department, was secretary of the Union. His membership in the Union had been the subject of adverse com- ment and investigation by the Association so that there can be no reasonable doubt that the Association also pursued its policy of dis- crimination with respect to him. Penney, a charging employee who was a member of the Union, was released by the respondent from the semi department on November 18 and not transferred. He asked Ross to help him secure employ- rnent. Ross directed him to report later, stating he had heard Penney "was C. I. 0." and he would have to study Penny's record. There- THE DOW CHEMICAL COMPANY, 1091 after he told Penney that Penney was "a C. 1. 0. agitator," that Penney- would not get a job with the respondent so long as he, Ross, had any- thing to do with the Association. , That the respondent gave effect to the Association's policy of dis- crimination in regard to filling vacancies is revealed by the following exchange between the respondent and the Association as reported by Ross : We then brought up the question of replacements for men who had quit or are otherwise forced to leave, and received the assur- ance of the management that our men would be given the first chance at these jobs over outsiders. This report appeared in an article by Ross. Ross testified, and we -find, that this article gave a substantially accurate description of what occurred at a conference between the respondent and the Asso- ciation held on December 2, 1937. In view of all the circumstances no substantial doubt can attach to the meaning of the report that the, respondent in filling vacancies would prefer "our men" over "out- siders." The article appeared in an Association newspaper. It de-' scribed a conference at which the Association successfully pressed the claims against release of certain employees. The wording of the, whole article, its authorship, its publisher, the established policy of the Association, all make it clear that the Association was defending loyal members albeit at the expense of non-members and of those sus- pected of being in sympathy with the Union. We therefore conclude that "our men" were loyal members of the Association as contrasted with "outsiders," employees who were either not members or not loyal members.124 Accordingly we find that respondent's express policy with respect to filling vacancies embodied the Association's policy of discrimination on the basis, of union membership or activity. Thus even if a particular superintendent were not discriminating against members of the Union and other employees identified therewith, in selecting persons to be released by his department, still the respondent discriminated against Union sympathizers in considering whether or not they should be transferred to fill a vacancy instead of being released from the respondent's employ. If the respondent considered membership in the Association favor- ably and membership in the Union unfavorably with respect to re- leases from a department-and the evidence compels this conclusion- '- Since the context of the article shows clearly that "our men" referred to persons on whose behalf the Association intervened , namely, loyal members , the contrasted group, the "outsiders" against whom the Association intervened , would refer to the non -members and to Union sympathizers. In representing the Association as bargaining against "outsiders ," Ross could not have used the term to refer to persons not on the company pay roll , since it was the Association 's and Ross' policy to bargain on behalf of members of the Association, with much seniority. who were off the pay roll. 1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the reasonable inference is that the respondent was moved by these same discriminatory factors in transferring employees from jobs about to be discontinued to fill vacancies occurring in other depart- ments. The reasonable inference is that the respondent's transfer policy did not originate with its expression at the conference of December 2. The record contains direct evidence of the respondent's discrimina- tory handling of transfers prior to December. Hess testified that Driver informed him that he had not been transferred from the di- phenyl department upon its shut-down in November because of his activity on behalf of the Union. In addition to the credit imparted to Hess' testimony by the respondent's hostility to the Union and by other anti-Union remarks made by its supervisory employees, his testimony and the other evidence showing discrimination in making transfers are mutually corroborative.125 We credit Hess' testimony and find that Driver in substance made the statement attributed to him. A concrete case illustrating the respondent's transfer policy arose at the December 2 conference between the respondent and the Asso- ciation. It concerned a construction employee whom the Association had not been able to persuade the construction superintendent to retain, in place of some non-member of the Association. The general man- agement of the respondent agreed to retain him in the construction department "until an opening developed where he could be trans- ferred to a different job." The Association's part in the employment policy of the respondent is further illustrated by an agreement between Ross and Dow. Dow had instituted a rule which normally prevented the employment of a person who was not already on the company pay roll, even though he had lost the status of employee only because of a crew reduction. Pursuant to Ross' complaint that this rule might be unfair to em- ployees of long-standing seniority who happened to be released prior to the occurrence of a vacancy, Dow agreed to consider such cases when presented by Ross. Thus despite the normal anti-hiring rule, Ross succeeded in securing employment for persons already released from the respondent's employ. He characterized the number so em- ployed as a "few," "four or five." Consistent with the Association's policy, Ross' efforts in this direction were confined to members of the Association. - lac Of course , evidence tending to show that the respondent did not refuse to transfer Hess to another job, because of union membership or activity , would tend to discredit Hess' testimony. We have examined the respondent's explanation for not having given Hess another job , supra at pages 1072-76 . We do not see sufficient force in this evidence to rebut Hess ' testimony and the inferences of fact drawn in the text. THE DOW CHEMICAL COMPANY 1093 We have already alluded to the fact that the respondent condi- tioned the right of an employee to have his ability, seniority, family status, and place of residence, considered, in a change of personnel, upon his membership in the Association. We have also pointed to the provision in the agreement conditioning the importance to be attached to seniority rights upon membership in the Association. The record shows that the machinery created by the respondent to handle the lay-offs involved a discriminatory application of criteria like ability, seniority, family status, and place of residence. Thus the November lay-off list drafted by the construction depart- ment and submitted to the Association for its approval purported to be based "on ability primarily." The technique adopted by the Association for pursuing its policy of discrimination consisted in stressing marital status, seniority, and place of residence. Of course this was a discriminatory use of these criteria, since whether or not they were invoked by the Association either for or against an em- ployee depended on a prior determination by the Association based on union membership or activity. In short, these criteria were convenient pretexts through which the Association achieved its discrimination. The potency of the discriminatory manipulation induced by the Association is revealed by the testimony of A. P. Beutel. According to him the Association "maneuvered" the superintendents away from their asserted predilection for giving exclusive consideration to the criterion of ability 126 and into giving more consideration to seniority, so that "in the February lay-off seniority was given major considera- tion." And yet, significantly, seniority "was not always given con- sideration." That is, the relative importance attached by the respondent to ability and seniority depended upon whether or not the Association pressed upon the respondent's attention an employee's. seniority standing. For example Caldwell, superintendent of the pipe department, testified at one point that it was very important to consider only ability in his department, that in deciding to release Hall, a charging employee, he considered only ability, that he has considered seniority at the Association's request, and that sometimes the Association so requested, sometimes not. Thus, whether seniority was ignored or whether it was a major factor in selecting persons. for release in February depended on the Association's discriminatory intervention. In giving effect to changes demanded by the Association, the re- spondent assumed responsibility for the Association's discriminatory manipulation of criteria in themselves lawful. Moreover, the reason. 126 This agreement between the Association and the respondent provided ( Article III, Section 3 ) that in personnel changes "ability will be given first consideration ." Respondent Exhibit No. 8. 187930-39-vol. 13- 7 0 1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD able inference is that the respondent's supervisory employees charged with executing the lay-off program were aware of the fact that the Association was pressing the qualifications of those only whom the Association desired, because of loyal membership, to protect. The supervisory employees could hardly fail to detect this from the course of the lay-off negotiations between the respondent and the Associa- tion. The matter must also have been obvious because there was nothing secret about the determination of the Association to protect only loyal members thereof. Indeed A. P. Beutel construed the agreement setting up the lay-off machinery as protecting only mem- bers of the Association. Finally awareness by the respondent's super- visory employees of the Association's technique need not be left to inference alone. Turnquist, superintendent of construction, testified that in the discussions with the Association as to the November con- struction lay-off list, in which the Association stressed marital status, seniority, and place of residence, as against ability, he "gathered" that the Association was trying to protect its own members. At the January conference in which Caldwell, superintendent of the ' pipe department, retained Rinas because of the Association's request, and released Boater instead, it was remarked that the substitution was all right anyway, since Bonter was not a member of the Association. In addition to being aware of the Association's practice, the re- spondent's supervisory employees were prepared to view the Asso- ciation's demands sympathetically and to comply with them. Thus when Ross asked Caldwell to retain Rinas in the pipe department, Caldwell lightly agreed to substitute Bonter. In explaining why he agreed to make the substitution, Caldwell testified as follows : I think the only reason was that in some discussion that I had had with Mr. Branson prior to the lay offs he said, "You may find that you might be asked to make some substitutions on these lists" and as far as I know that is about all that was ever said about it, and when it came to me, I figured I was following the normal set up procedure to qualify and cooperate with the members of the committee of my shop and the committee of the MCWA. Under the circumstances revealed by this record we can have little confidence in the testimony of the respondent's supervisory employees purporting to describe their estimate of the claimants' abilities and other qualifications in comparison with other employees and purporting to explain how these estimates influenced their de- cisions. We have already indicated the incredibility of much of this testimony on special grounds. 121 A bona fide evaluation of employees' 1`7 The testimony of the respondent's supervisory employees with respect to these matters has been set forth in connection with the employment history of each of the claimants. THE DOW CHEMICAL COMPANY 1095 qualifications for the purpose of selecting persons for release was hardly possible in view of the respondent's hostility toward the Union. Moreover, that the respondent's supervisory employees would even attempt any such bona fide evaluation may well be doubted, since the respondent did not hesitate to interfere with labor organ- ization among its employees, coercing them against membership in the Union and so acting as to establish an inside organization de- voted to enmity toward the Union. Were the respondent desirous of laying off employees upon the basis of ability, seniority, and similar considerations, it would clearly not have abdicated to the Association a substantial portion of its power to hire and discharge, for it was a foregone conclusion that the Association would dis- criminate against persons suspected of preferring the Union. Cer- tainly the respondent would not have continued this exclusive power of participation in the Association, after becoming aware of its dis- criminatory exercise by the Association, unless it willed that the dis- crimination occur. Acquiescence in the Association's abuse of lawful criteria to further the Association's discriminatory aims, an attitude of cooperation toward the Association, and a light acceptance of Association demands, also suggest that the respondent's supervisory employees themselves favored the Association's technique. The re- spondent's adoption of the same technique is further indicated by its construction of an agreement-which provides for the consideration of ability, seniority, family status, and place of residence, in making changes of personnel-as being for the exclusive benefit of members of the Association. Indeed by the very terms of the agreement, the respondent undertook to make the importance of the employee's sen- iority standing depend upon his membership in the Association. Finally, the admission that membership in the Association was a factor considered and the fact that the respondent promised the Association to prefer its "men" in filling vacancies both tend to refute any asserted bona fides in evaluating employees' qualifications. In some instances supervisory employees denied knowing that a charging employee was a member of the Union. We cannot attach much weight to these denials. The respondent showed an avid in- terest in the affiliation of its employees. As we have found above in Section III B, the respondent's police department and supervisory employees were actively engaged in finding out the identity of Union members. In many instances the charging employees' Union activi- ties and sympathies must have been known to the supervisory em- ployees because of their open character even if the supervisory employees did not know definitely whether or not the formal step of applying for membership in the Union had been taken. Given the intention to discriminate, the respondent could be relied upon to 1096 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD discover employees against whom to discriminate. Finally, because of the part played by the Association in these releases, its knowledge of union membership or activity is material.128 Two witnesses, Arnold Lightowler and Elwood Smith, quoted Ross as having stated that the Association had "spotters" at every Union meeting. Hess testified that Ross showed accurate knowledge of the number of mem- bers in the Union. Ross ' testimony showed that he made inquiries to ascertain the identity of Union members, and that the Association resolved to make an investigation of such matters. We have al- ready noted the many statements by Ross and other Association representatives showing their knowledge of particular charging em- ployees' Union membership or activity. From the various elements noted in this record-the respondent's purpose in fostering the Association, the terms of the agreement, its construction by the respondent, the respondent's practice there- under, the power which the respondent delegated to the Association, the way in which the Association exercised that power-there emerges the pattern of a closed shop even though the agreement does not in terms provide for one. Our conclusion is borne out by the admis- sion of one who clearly speaks for the respondent. Dow, president of the respondent, testified as follows : Q. Do you consider this M. C. W. A. contract a closed shop contract? A. I would be inclined to say it is virtually so 129 We cannot ignore the closed-shop character of a contract simply because membership in the favored and non-membership in the disfavored union are not made explicit.180 As we have found above in Section III C, the respondent unlaw- fully fostered the Association. By this device the respondent simply adopted the symbols of labor organization to defeat the purpose thereof. This step having been taken, an easy corollary was the use of a traditional trade-union instrument, the closed shop, to suppress 128 This is so regardless of whether or not the Association communicated the knowledge to the respondent 's supervisory employees . Ross testified such information was not communicated. 1A In reply to the question whether the agreement resulted in a closed shop, A P. Beutel asserted "you could read that into the agreement " but "I would say it actually did not." However , Dow's above-quoted admission shows that the respondent in fact did "read" the closed shop into the agreement 130 Cf. Matter of Highway Trailer Company and United Automobile Workers of America, etc, 3 N . L R B 591 , consent decree enforcing order in toto, National Labor Relations- Board v Highway Trailer Company , 95 F (2d ) 1012 (C. C. A. 7th). ( The employer agreed to discharge any employee whom the company -dominated union deemed undesir- able ) ; Matter of Sunshine Mining Company and International Union of Mine, Mill, and Smelter Workers , 7 N. L. It. B. 1252 (The employer delegated ' the power of reinstatement to a company -assisted committee whose policy it was to deny reinstatement to pickets) ; Matter of Shellabarger Grain Products Company and Flour and Cereal Workcis Union, No. 20765, 8 N. L. R. B 336 THE DOW CHEMICAL COMPANY 1097 freedom of employee organization. The agreement was a conven- ient cover under which the respondent continued the anti-Union policy which it had instituted upon the formation of that organiza- tion. With the aid of the Association, the respondent selected the 19 persons named in the amended complaint for release because they were suspected of opposing the Association, of preferring the Union, or of both. This discrimination is thus an unfair labor practice proscribed by Section 8 (1) and (3) unless covered by the proviso to subdivision (3). The tainted origin of the Association removes the protection of that proviso.'3' We find that the respondent discriminated in regard to the hire and tenure and terms and conditions of employment of David Gil- man, Theodore Bonter, George Gould, Chester Tucker, Arthur Tucker, Chester Kaczynski, Richard Hall, Russell Thomas, Clarence Schnell, James Jones, Ralph Clipper, Maurice Crall, Pearl Sher- wood, Edwin Hess, Louis Schambers, Emil Phillips, Leon Penney, Edward Hildebrandt, and Arnold Lightowler, thereby discouraging membership in a labor organization and encouraging membership in another labor organization, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES 'UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed 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 the respondent has engaged in unfair labor practices, we will order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act and to restore as nearly as possible the condition which existed prior to the commission of the unfair labor practices. Matter of Clinton Cotton Mills and Local No. 2182, United Textile Workers of Amerioa, 1 N. L. R. B. 97. The proviso to Section 8 (3) refers to an agreement with a labor organization which requires as a condition of employment membership therein. Whether or not the agreement with the Association , and the practice thereunder , would have come within the terms of this proviso, even if the Association were unaided by unfair labor practices and were the representative within Section 9 (a), is a serious question. A determination of this question , however, is unnecessary in view of our findings in the text. 1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We have found that the respondent has dominated, and interfered with the formation and administration of the Association and has contributed support to it. Its continued existence is a consequence of violation of the Act thwarting the purposes of the Act and render- ing ineffective a mere order to cease the unfair labor practices.182 In order to effectuate the policies of the Act and free the employees of the respondent from such domination and interference and the effects thereof, which constitute a continuing obstacle to the exercise by the employees of the rights guaranteed them by the Act, we will order the respondent to withdraw all recognition from the Association as rep- resentative of the respondent's employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, and conditions of work, and to disestablish it as such representative.133 Since the agreement between the respondent and the Association embodies recognition of the Asso- ciation as such representative, since further the agreement represents the fruit of the respondent's unfair labor practices, a device to per- petuate their effects, and a cover under which the respondent may continue to commit unfair labor practices, we will order the respond- ent specifically to cease and desist from giving effect to this or any other agreement it may have entered into with the Association in. re- spect to rates of pay, wages, hours of employment, or other condi- tions of work., 34 Further, specifically ordering the respondent to cease and desist from giving effect to the agreement with the Associa- tion follows from our more general order with respect to withdrawal of recognition and disestablishment, hereinabove described. The more specific order is the "relief . . . adapted to the situation which calls for redress." 185 We have found that the respondent discriminated against the em- ployees, listed in Appendix A, in Appendix B, and in Appendix C in regard to their hire and tenure and terms and conditions of employ- ment. Since the respondent has already reinstated the employees listed in Appendix A, we shall not order the respondent to reinstate them. The respondent, however, has not reinstated the employees listed in Appendix B and in Appendix C. We shall therefore order 182 Consolidated Edison Company v. National Labor Relations Board, 305 U. S. 197. 113 National Labor Relations Board v Pennsylvania Greyhound Lines, Inc ., 303 U. S. 261 ; National Labor Relations Board v. Pacific Greyhound Lines , Inc, 303 U. S 272; National Labor Relations Board v. Fansteel Metallurgical Corporation , 306 U. S. 240. 134 In National Labor Relations Board v. Stackpole Carbon Company , 105 P. (2d) 167 (C C. A. 3d), the Court enforced a similar order, stating: "The portion of the Board's order referred to is remedial and not punitive. This section of the order was necessary in order to insure to the employees of the respondent their rights of self-organization and of collective bargaining , and to effectuate in general the policies of the Act, and was sanctioned by the decision of the Supreme Court in the case of National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., supra." 185 See Clover Fork Coal Company v. National Labor Relations Board, 97 F. (2d) 331 (C. C. A. 6th). THE DOW CHEMICAL COMPANY 1099 the respondent to offer to the employees listed in Appendix B and in Appendix C reinstatement to their former or substantially equiva- lent positions. The offer of reinstatement shall be without preju- dice to their seniority and other rights and privileges and shall be effected in the manner set forth in paragraph 2 (b) of the Order. We shall also order the respondent to make payment to each of the employees listed in Appendix A and in Appendix B an amount equal to that which he would have earned as wages and bonus dur- ing the period from the date of the discrimination to the date of the offer of reinstatement, less his net earnings 138 during that period, had the respondent not discriminated in regard to his hire and tenure and terms and conditions of employment. We shall enter the same order with respect to the employees listed in Appendix C, except that, since the Trial Examiner found that they were not discriminated against and recommended the dismissal of the complaint with respect to them, we will exclude from the computation of their back pay the period from the date of the Intermediate Report to the date of the Order herein. This is in accord with our usual rule.137 , We have found that the respondent interfered with, restrained, and coerced Guy Lewis in the exercise of the right guaranteed by Section 7 to engage in concerted activities for the purpose of mutual aid or protection, and that the respondent discriminated in regard to Lewis' hire and tenure and the terms and conditions of his employment. Since we cannot determine definitely from the record as it now stands whether or not the respondent would have given Lewis work at the time he applied therefor, in July 1937, had the respondent not engaged in the unfair labor practice with respect to him, we shall not order the respondent to reinstate him immediately. In view, however, of the substantial expectancy of obtaining em- ployment, in July 1937, which Lewis enjoyed but which was de- feated because of the respondent's unfair labor practice with respect to him, we will order the respondent to take the affirmative action which will best effectuate the policies of the Act. Accordingly, we will order the respondent to place Guy Lewis upon a preferential "'BY "net earnings " is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with seeking work or working elsewhere than for the respondent , which would not have been incurred but for his unlawful dis- charge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R . B. 440. We shall order the respondent to deduct from the back pay due under our Order monies received by an employee for work performed upon Federal , State, county , municipal , or other work-relief projects during the period for which we are ordering the respondent to pay such employee back pay and to pay such deductions over to the proper fiscal agency of the Federal, State , county, municipal , or other government or governments which supplied the funds for said work-relief projects. W Matter of R. R. Haffelfinger Co., Inc. and United Wall Paper Crafts of North America, Local No. 6, 1 N . L. R. B. 760. 1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD list and to reinstate Lewis to his former or to a substantially equiva- lent position when such employment becomes available and before any other person is hired for such work. In order to effectuate the policies of the Act we must also provide for the contingency that Lewis would have been given work, in July 1937, or thereafter, had the respondent not engaged in the unfair labor practice with respect to him. We shall therefore order the respondent to give Lewis back pay as set forth in the Order. The question is raised by the record whether the respondent should be permitted to deduct from the back pay due under our Order moneys received by an employee for work performed upon Federal, State, county, municipal, or other relief projects during the period for which we are ordering the respondent to pay such employee back wages and bonus. In so far as the employee receives remuneration for such work during periods when he would otherwise have been working for the respondent, it would not seem necessary, in restor- ing him to the status quo, to require the respondent to reimburse him in such amounts. Nevertheless, to hold that the losses accruing from the -respondent's unfair labor practices must be borne by the govern- ment or governments financing the work-relief projects would not effectuate the policies of the Act. We shall, therefore, order the re- spondent to deduct such sums from the amounts otherwise due the employees and to pay such deductions over to the proper fiscal agency of the Federal, State, county, municipal, or other government or governments, which supplied the funds for the work-relief project 133 We have found that the respondent did not discriminate against the employees listed in Appendix D in regard to hire and tenure and terms and conditions of employment. We shall, therefore, dismiss the complaint with respect to them. We shall also dismiss the com- plaint as to the employees listed in Appendix E without prejudice. Since Harris was not released subsequent to his reinstatement, we shall dismiss the allegations that he was discriminatorily laid off on February 4, 1938, and thereafter discriminatorily refused reinstatement. Upon the basis of the foregoing findings of fact and upon the entire record in this case, the Board makes the following : CONCLUSIONS OF LAW 1. United Mine Workers of America, District No. 50, United Automobile Workers of America, and The Midland Chemical Work- 13'Matter of Western Felt Works , etc. and Temtile Workers Organizing Committee, etc., 10 N. L. R. B. 407. THE DOW CHEMICAL COMPANY 1101 ers' Association are labor organizations within the meaning of Sec- tion 2 (5) of the Act. 2. By dominating and interfering with the formation and adminis- tration of, and by contributing support to, The Midland Chemical Workers' Association, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 3. By enforcing a discriminatory condition of employment and by discriminating against the employees named in Appendix A, in Ap- pendix B, and in Appendix C in regard to their hire and tenure and terms and conditions of employment, thereby discouraging member- ship in United Automobile Workers of America, and in United Mine Workers of America, District No. 50, and encouraging membership in The Midland Chemical Workers' Association, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 4. By interfering with, restraining, and coercing Guy Lewis and other 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. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 6. By discharging or laying off or by refusing to reinstate the employees named in Appendix D and in Appendix E, the respondent has not engaged in unfair labor practices within" the meaning of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders `that the respondent, The Dow Chemical Company, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) In any manner dominating or interfering with the adminis- tration of The Midland Chemical Workers' Association, or the forma- tion or administration of any other labor organization of its em- ployees, and contributing any support to The Midland Chemical Workers' Association, or to any other ,labor organization of its employees; (b) Recognizing The Midland Chemical Workers' Association as the representative of any of the employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work; 1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Discouraging membership in United Mine Workers of Amer- ica, District No. 50, or any other labor organization of its employees, or encouraging membership in any labor organization of its em- ployees, by discharging, laying off, or refusing to reinstate any of its employees, or in any other manner discriminating in regard to hire or tenure of employment or any term or condition of employ- ment ; (d) Giving effect to any 'agreement which it may have, entered into with The Midland Chemical Workers' Association in respect to rates of pay, wages, hours of ,employment, or other conditions of work; (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights 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 purpose of collective bargaining or other mutual aid or 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) Withdraw all recognition from The Midland Chemical Workers' Association 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 condi- tions of work, and completely disestablish The Midland Chemical Workers' Association as such representative; (b) Offer to the employees listed in Appendix B and in Appendix C immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, such offer to be effected in the following man- ner : All employees hired during or after the discharges here in question, shall, if necessary to provide employment for those to be offered reinstatement, be dismissed. If, thereupon, by reason of a reduction in force there is not sufficient employment immediately available for the remaining employees, including those to be offered reinstatement, 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, following a system of seniority to such extent as has heretofore been applied in the conduct of the respondent's business. Those employees remain- ing after such distribution, for whom no employment is immediately available, shall be placed upon a preferential list prepared in ac- cordance with the principles set forth in the previous sentence, and shall thereafter, in accordance with such list, be offered employment THE DOW CHEMICAL COMPANY 1103 in their former or substantially equivalent positions, as such employ- ment becomes available and before other persons are hired for such work; (c) Make whole the employees listed in Appendix A and in Ap- pendix B for any loss of pay they may have suffered by reason of the respondent's discrimination in regard to their hire and tenure and terms and conditions of employment, by payment to each of them respectively of a sum of money equal to that which each would have earned as wages and bonus during the period from the date of the discrimination to the date of the offer of reinstatement, less his net earnings,189 if any, during said period, had the respondent not discriminated in regard to his hire and tenure and terms and condi- tions of employment, provided that the respondent shall deduct from the back pay due each employee a sum equal to that received by such employee for work done in Federal, State, county, municipal, or other relief project during the period for which back pay is due him under this Order, and shall pay any such amount deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government financing such relief project; (d) Make whole the employees named in Appendix C for any loss of pay they may have suffered by reason of the respondent's discrimi- nation in regard to their hire and tenure and terms and conditions of employment, by payment to each of them respectively of a sum of money equal to that which he would have earned as wages and bonus during the period from the date of the discrimination to the date of the Intermediate Report of the Trial Examiner, and from the date of this Order to the date of the offer of reinstatement, less his net earn- ings,139 if any, during said periods, had the respondent not discrimi- nated in regard to his hire and tenure and terms and conditions of employment; provided that the respondent shall deduct from the back pay due each employee a sum equal to that received by such employee for work done in Federal, State, county, municipal, or other relief project during the period for which back pay is due him under this Order, but the respondent shall pay any such amount deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government financing such relief project; (e) Place Guy Lewis upon a preferential list prepared in accordance with the principles and in the manner set forth in paragraph 2 (b) above and thereafter, in accordance with such list, reinstate him to his former or to a substantially equivalent position as such employment becomes available and before other persons are hired for such work; 10 See footnote 136, supra. 1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) Make whole Guy Lewis for any loss of pay he may have suffered by reason of the respondent's unfair labor practice with respect to him by payment to him of a sum of money equal to that which he would have earned as wages and bonus had the respondent not engaged in the said unfair labor practice and had the respondent given him work ex- cept from the date of the Intermediate Report of the Trial Examiner to the date of this Order, less his net earnings '140 if any, during the pe- riod for which back pay is due him under this Order; provided that the respondent shall deduct from such back pay a sum equal to that re- ceived by him for work done in Federal, State, county, municipal, or other relief project during the period for which back pay is due him under this Order, but the respondent shall pay any such amount de- ducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government financing such relief project; (g) Post immediately and in conspicuous places in each depart- ment of the respondent's plant notices, stating : (1) that the respondent will cease and desist as provided in paragraphs 1 (a), (b), (c), (d), and (e) of this Order; (2) that employees are free to remain or become members of United Mine Workers of America, District No. 50, and that the respondent will not discriminate against any em- ployee because of such membership; and (3) that the respondent withdraws all recognition from The Midland Chemical Workers' Association, as a representative of any of its employees, completely disestablishes it as such representative, and gives no further effect to any agreement with said Association in respect to rates of pay, wages, hours of employment, or other conditions of work; (h) Maintain such notices for a period of at least sixty (60) con- secutive days from the date of posting; (i) Notify the Regional Director for the Seventh Region in writ- ing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint as to the employees named in Appendix D and Appendix E, as to the alleged release of to reinstate him be, and it hereby is, dismissed, but without prejudice to reinstate him be, and it hereby is, dismissed, but without prejudice as to the employees named in Appendix E. APPENDIX A Clarence Harris John Miller Emory Keeley Delos Wood 4O See footnote 136, supra THE DOW CHEMICAL COMPANY 1105 APPENDIX B Grover Alexander Theodore Bonter Maurice Crall Ray Crosby David Gilman George Gould Richard Hall Edwin Hess Arthur Henderson James Jones Chester Kaczynski Burton McNett Emil Phillips Clarence Schnell Arthur Tucker Chester Tucker APPENDIX C Ralph Clipper Edward Hildebrandt John Lane Harry Lewis Arnold Lightowler Leon Penney Louis Schambers Pearl Sherwood Russell Thomas APPENDIX D Paul Gray Lawrence Huntley Louis Kartz Ray Kiser Alvin Roe Hector Shaw APPENDIX E Kenneth Blanck Lloyd Brown George W. Jones Wendell Marshall Otis Miller Wilbur Palmateer Roy Slaybaugh Howard Simpson Vernon Vincent Charles Wint MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.