Ford Motor Co.

In the Matter of FORD MOTOR COMPANY and INTERNATIONAL UNION, UNITED AUTOMOBILE WORKERS OF AMERICA, LOCAL No. 406 Cases Nos. C-873 and R-856.-Decided December 8, 1939 Automobile and Truck Assembly Industry-Interference, Restraint , and Coer- cion: spasmodic anti-union statements by supervisors to employees-Compaaty- Dominated Union: charges of, dismissed ; abortive attempt to form as a viola- tion of Section 8 (2) of the Act-Unit Appropriate for Collective Bargaining: non-salaried production , maintenance, shipping, receiving , and service-stock em- ployees of the respondent at the Long Beach assembly plant, including unsalaried foremen, assistant foreman, assistant working foremen, and timekeepers, but excluding all employees working in the factory service department-Employee Status: working foremen-Representatives : proof of choice : signed authoriza- tions, membership in good standing with dues not over three months in arrears- Collective Bargaining : refusal to acknowledge Union's written request for a con- ference; absence from office at proposed time without warning or explanation; oral refusal to meet with Union's bargaining committee ; strike caused by refusal to meet ; order based on majority at date of refusal to bargain ; respondent ordered, upon request, to bargain with Union and to reinstate or place on pref- erential list all employees who went on strike-Investigation of. Representatives: petition for, dismissed in view of the order to bargain collectively. Mr. David Persinger, for the Board. Williams c6 Wallace,'by Mr. W. R. Wallace anti Mr. Oscar A. Trip- pet; both of Los Angeles, Calif., Colombo c0 Colombo, by Mr. Louis J. Colombo, of Detroit, Mich., and Cravath, de Gersdorff, Swaine & Wood, by Cllr. Frederick Wood and Mr. Alfred McCormack, both of New York City, for the respondent. Mr. Francis Hoague, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On March 7, 1938, the International Union, United Automobile Workers of America, Local No. 406, herein called the Union, filed with the Regional Director for the Twenty-first Region (Los Angeles, California) charges alleging that the Ford Motor Company, Long Beach, California, herein called the respondent, had engaged in and 18 N. L. R. B., No. 27. 167 283029-41-vol. 18-12 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On the same day the Union filed with the said Regional Di- rector a petition alleging that a question affecting commerce had arisen concerning the representation of employees of the respondent and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Act. On April 26, 1938, the Na- tional Labor Relations Board, herein called the Board, acting pur- suant to Section 9 (c) of the Act and Article III, Section 3, of Na- tional Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation and authorized the Regional Di- rector to conduct it and to provide for an appropriate hearing upon due notice. On April 26, 1938, the Union filed with the said Regional Director an amended charge alleging that the respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), and (5) and Section 2 (6) and (7) of the Act. Upon the amended charge the Board, by the said Regional Director, issued its complaint dated April 27, 1938, 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 (5) and Sec- tion 2 (6) and (7) of the Act. A copy of the complaint, accom- panied by notice of hearing and a copy of the petition, was duly served upon the respondent and the Union and was mailed by regis- tered mail, postage prepaid, to Independent Automobile Workers, c/o Ford Motor Company, Long Beach, California. On May 2, 1938, the Board, acting pursuant to Article III, Section 10 (c) (2), and Article II, Section 37 (b), of said Rules and Regulations, ordered that the representation case be consolidated for the purpose of hearing with the case involving the charges filed by the Union. On May 11, 1938, the respondent filed a motion to make the com- plaint more definite and for a Bill of Particulars. On May 18, the respondent filed an answer to the complaint, in which it denied that it was engaged in commerce and that it had engaged in the unfair labor practices set forth in the complaint. On May 24, 1938, the Board by the said Regional Director issued an amended complaint 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 (5) and Section 2 (6) and (7). On the same day the Union filed with the said Regional Director an amended petition for investi- gation and certification. Copies of the amended complaint, ac- companied by notice of hearing and the amended petition, were duly served upon the respondent and the Union and were mailed by regis- tered mail, postage prepaid, to Independent Automobile Workers, FORD MOTOR COMPANY 169 c/o Ford Motor Company, Long Beach, California. Regarding un- fair labor practices, the amended complaint alleged in substance that the respondent, through various alleged officers, agents and servants, dominated and interfered with the formation and administration of, and supported, a labor organization entitled "Independent Automo- bile Workers," hereinafter called the I. A. W., and that on or about January 1, 1938, and at all times thereafter, the respondent refused to bargain collectively with the Union although the majority of the re- spondent's employees within the appropriate bargaining unit had authorized the Union to represent them for the purpose of collective bargaining. On May 25, 1938, the Regional Director issued an order denying the respondent's motion to make the complaint more definite and for a Bill of Particulars. On June 3 the respondent filed its answer to the amended complaint in which it denied that it had en- gaged in or was engaging in the unfair labor practices set forth in the amended complaint. On the same day the respondent filed an "answer to, and motion for dismissal of the amended petition for in- vestigation and certification." On June 4 the Regional Director issued an order denying the respondent's motion to dismiss the amended petition. Pursuant to notice and 'amended notice, a hearing was held at Los Angeles, California, on June 6, 7, 8, 9, 10, 13, 14, and 16, 1938, before R. N. Denham, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and par- ticipated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issue was afforded both parties. At the hearing the temporary president of the I. A. W. appeared as a witness and stated that prior to the hearing he had consulted counsel regarding the representation of the I. A. W. at the hearing and that, for financial reasons, they had decided not to be represented. During the course of the hearing, the Trial Examiner ruled upon various motions and objections to 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 August 12, 1938, the Trial Examiner filed his Intermediate Re- port, copies of which were duly served on the parties, finding that the respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8 (1), (2), and (5) and Section 2 (6) and (7) and recommending that the re- spondent cease and desist therefrom and take certain affirmative ac- tion to remedy the situation brought about by the unfair labor practices. On September 12, 1938, the respondent filed its exceptions to the Intermediate Report together with a motion to dismiss the 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amended complaint. On July 15, 1939, the respondent filed its brief in support of these exceptions. On July 18, 1939, pursuant to a request by the respondent, oral argument was had before the Board at Washington, D. C. The respondent was represented by counsel and participated. Neither the Union nor the I. A. W. appeared at the oral argument. The Board has reviewed the exceptions to the Intermediate Report and, in so far as they are inconsistent with the findings, conclusions, and order set forth below, finds them to be without merit. On July 25, 1939, the respondent filed a motion to supplement the record as to the procedure of the Board herein in cer- tain respects, and for leave to except and argue to the record as so supplemented. The motion is hereby denied. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Ford Motor Company is a Delaware corporation engaged in the manufacture, assembly, sale, and distribution of automobiles and trucks and various types of automobile parts and accessories. It owns, operates, and maintains manufacturing and assembly plants in many States throughout the country. These proceedings concern the assembly plant located at Long Beach, California. During 1937, 33,379 units were assembled at this plant. Although some of the parts composing the finished unit come from within the State of California," most of them are shipped from the main factory at Dearborn, Michi- gan. The average daily shipment to the Long Beach branch is ap- proximately 5 carloads of material. When production is increased, the daily shipment sometimes runs as high as 18 carloads. Of the units assembled at this plant approximately 13 per cent are shipped out of the State of California. The number of employees at the Long Beach assembly plant varies widely from month to month and even from week to week. Whereas at the beginning of September 1937 the plant employed approximately 980 production and maintenance employees, at the time of the hearing there were approximately 380 such employees: II. THE ORGANIZATIONS INVOLVED International Union, United Automobile Workers of America, Local No. 406, is a labor organization affiliated with the Committee for Industrial Organization ,2 admitting to membership all non-salaried I The plant superintendent testified that batteries , tires, springs, and parts of springs are purchased locally. 2 Now the Congress of Industrial Organizations. FORD MOTOR COMPANY 171 production, maintenance, receiving, shipping, and service-stock em- ployees of the respondent at its Long Beach assembly plant, excluding all employees who work in the factory service department. Independent Automobile Workers is an unaffiliated plant-wide labor organization. The record does not show what classifications of employees are eligible to membership except that membership is restricted to citizens of the United States. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion; attempted formation of a company-dominated labor organization In the early part of 1937 the Union commenced an organizing cam- paign among the respondent's employees at the Long Beach plant.-3 By June 1937 an overwhelming majority of the production and main- tenance employees had signed membership cards.' In June, less than a month after the Union had been chartered and installed, Edwin A. Storm, an employee in the Body Build depart- ment, and shop steward of that department for the Union, was ap- proached by his assistant working foreman, A. G. Rogers, with a proposal that he (Storm) and James Holmes, who was with Storm at the time, could make some extra money and insure themselves permanent employment with the respondent if they would form a company union. Upon being asked where the money would come from, Rogers stated that he had "official backing" and that there was plenty of money behind this plan. Later in the conversation, Storm again questioned him as to the source of the money, and was told that if he wanted verification he would get it. Shortly thereafter, Nicolas DeBone, foreman of the entire Body department, which comprises Body Build, Paint and Enamel, and Trim departments, came at Rogers' suggestion to where Storm was working, and a conversation ensued. DeBone said that he would be unable to speak to him directly regarding the company union, but that he would send messages by Rogers. Then he walked off and spoke to Holmes and two other employees named Sims and Carter. Subsequently when Sims spoke to Storm about this Storm advised him to "play along with them." The above is a summary of the combined testimony of Storm and Holmes. Regarding this incident DeBone testified as follows : Rogers came up to me one day and said, "Ed Storm wants to see you down the buck."... So I went down there and Ed said "We * Throughout the rest of the decision the Long Beach plant will be referred to merely as the plant. * The Union's financial secretary produced 927 membership cards, most of which he said had been signed between April and June 1937. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD want to form a company union." He said "We have got to get some cards out to solicit . How can we get some money to do that ?" Well, really, I thought I had even stood and listened there too long because I wasn't interested in anything like that, and I wanted to get away from there, and I walked away . . . wait a minute . . . he asked me then if the company would furnish some money for those cards, and I said "Definitely not; they wouldn't be interested ; neither would I." That is when I walked away from the man ... Holmes came walking over. He said, "Hey, wait a minute. I want to see you." ... He went into the same detail, and I kept right on walking away from him. The improbability of this testimony leads us to disbelieve DeBone's version of the event. It does not seem likely that a man in DeBone's official position would leave his work at the call of an ordinary em- ployee on such a mission without reprimanding him severely. His testimony shows no such reprimand . Instead he states that he merely walked away. His testimony is not convincing, and the Trial Exam- iner credited Storm's version of these events . Even stronger support, however, for Storm's testimony lies in the fact that despite the key part played by Rogers in these events, he was not called upon to tes- tify, although he was employed in the plant at the time of the hearing. For these reasons we are convinced of the truthfulness of the testi- mony of Storm and Holmes, and so find. During the next few weeks Rogers conferred with Storm several times regarding the proposed organization. DeBone spoke to him twice again, once stating that he had to be careful what he did because the "Wagner Labor Act" had been declared constitutional and that the Union was "laying for" him. Once when Storm asked Rogers how they would get some money, Rogers replied that they could print dance tickets and sell them to the respondent at $10 each , and that he (Rogers ) would get the money for printing the tickets. At another time Rogers told Storm that Johnston , the plant superintendent, had said that he would guarantee both Storm and Holmes steady work, as long as the Ford Motor Company was in existence , if they would "go ahead with the company union organization." Sometime during July 1937 this whole scheme came to an end when Storm, by taking a firm stand regarding a particular grievance which he was handling, demonstrated his loyalty to the Union and his in- sincerity in his part in the proposed company union . Thereafter nothing further was heard of this plan. The position of DeBone as foreman of the entire Body department was such that his activities in attempting to create a labor organization FORD MOTOR COMPANY 173 are attributable under the Act to the respondent., Rogers, because he was acting on behalf of and with the authority of DeBone, likewise bound the respondent by his acts. The respondent's attempt to form a union, although unsuccessful, nevertheless constituted an unfair labor practice. We find that the respondent thereby has dominated and interfered with the formation of a labor organization ,6 and has interfered with, restrained, and coerced its employees in the exercise of the right to self-organization, to form, join, or assist labor organi- zations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection. During the same general period there were other instances of super- visory hostility to the Union. In July, R. G. Hendricks, chief in- spector, approached Storm and his working group to criticize some of their work. In the course of the conversation Holmes asked Hendricks what he thought of the Union. Hendricks' reply was that he be- lieved they were doing right to organize. He continued, "Instead of doing like you fellows did, I believe I would join an organization that the company would deal with. I don't believe you will ever get to first base with the Automobile Workers, belonging to a big interna- tional. The thing you fellows ought to do is join a thing Ford has a liking to and then he will bargain with you." Although at the hearing Hendricks denied having discussed the Union with men in his department he was never questioned about this conversation, which was with men not in his department. We find that Hendricks made the statements set forth above. Al Morgan, assistant foreman in the Body Build department, had a conversation with Storm in the plant during the course of which he said "that it was a sure thing that if the Union kept on gaining strength and going ahead the way they were, that the Ford Motor Company certainly would not open up with a 1938 model in the face of the fight that they figured they were going to have on their hands." Another time Morgan told Storm and Holmes that they were " saps," that "the best thing to do was to get on the band wagon and join the right parade, and our jobs would last." Morgan also was em- ployed at the plant at the time of the hearing but was not called as a witness. Sometime during the summer, W. H. Toy, foreman of the Body Build department, reprimanded Storm for having fallen down on pro- duction. He went on to complain about the activities of the shop o National Labor Relations Board v. The A, S. Abell Company, 97 F. (2d) 951; Swift t Company V. National Labor Relations Board, 106 F. ( 2d) 87 (C. C. A. 10). 6 The Board has in other cases held that an unsuccessful attempt, on the part of the employer, to form a labor organization , constitutes a violation of Section 8 (2) of the Act. See, for example, Matter of Millfay Manufacturing Company, Inc . and American Federation of Hosiery Workers, Branch 40, 2 N. L. R. B. 919. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD substewards, referred to as "white button boys." Storm's testimony on this was as follows : ... he told me he was sick and tired of these white-button boys trying to protect and be the guardian of the peace and morale of the Ford Motor Company; that there was a possibility that the following year these white-button boys wouldn't be so anxious to jump in and get their feet wet. He was referring to a little trouble that happened over there on the line several weeks previous to that where I kind of put my feet into it. It had to be stopped, which I did. We find that by the statements of Hendricks, Morgan, and Toy, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. For years it has been the respondent's custom to shut down either in late summer or early fall for the purpose of changing jigs and equipment for the annual new models. During the shut-down period, known as the "change-over," production employees are ordinarily laid off. Those usually retained on the pay roll are the factory service employees, service-stock employees, some of the maintenance men, and most foremen and assistant foremen. For a portion of the time, at least, assistant working foremen are retained for general maintenance work. The 1937 change-over began on September 4, 1937. Almost immediately thereafter, a movement was organized to obtain signatures of employees to yellow slips.which read as follows: Mail to 411 W. 7th St., Room 712, Los Angeles. We the under- signed, are willing to return to work without affiliation to any National Chartered Union. We believe that the way to induce employers to hire us is by giving him the good service and loyalty that we expect in return. Signed ------------------------------ This yellow-slip movement was sponsored, conducted,, and paid for by ordinary employees with the help of a few assistant working fore- men. The evidence shows no other connection between this movement and the respondent. Although for several days there was considerable activity in the distribution of the yellow slips, the record does not disclose what became of the slips or how many were signed. The episode ended a few days after it was begun without any specific action being taken. In view of our finding below regarding the status of assistant working foremen we find that the yellow-slip movement is not attributable to the respondent. Within a few days after the end of the yellow-slip activity, Frank Galpin, an inspector, and H. I. Dyer, an ordinary employee, drafted and circulated a petition to be submitted to the members of the Union for signature, demanding the resignation of Carse, Tillman, and FORD MOTOR COMPANY 175 Womack, the three leading officers in the Union. The concluding sentence in the petition read : "We believe this measure to be necessary in order to reopen the plant." This petition was circulated by the two originators and several other employees. Three assistant work- ing foremen were active in soliciting signatures to this petition, al- though none of them were any longer members in the Union. The petition was eventually signed by 213 members of the Union, many of them signing because of representations that it was the only way in which the plant could be reopened. At a union meeting on Sep- tember 30, the petition was presented by five members, some of whom explained it to the meeting. Then, after the union president had spoken for a few minutes explaining that the reopening of the plant had nothing to do with the petition, a vote was taken on the petition, and it was overwhelmingly voted down. This ended the overt at- tempts at removing the Union or its officers during the change-over. We find no substantial evidence that the respondent interfered with, restrained, or coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, by initiating or participating in the yellow-slip movement or the petition to oust the union officials. B. Formation of the I. A. W. On December 2, 1937, the union members voted to support a Na- tion-wide strike of union locals in all of the respondent's plants, in the event that a strike should be called in the respondent's plant at River Rouge, Michigan. Immediately following this meeting Gal- pin, who had been one of the two originators of the petition to oust the union officials, made preparations for the formation of an un- affiliated labor organization. He visited an establishment in Los Angeles named the League of Independent Unions and was by them referred to a law firm named Voorhees and Voorhees, which had engineered the organization of a number of independent unions in the vicinity. He also sought the advice of one of his acquaintances who worked at the Douglas Aircraft Company. He drafted and had printed 1000 application cards for membership in his prospective organization. These he did not distribute for a while, but waited until he felt the occasion ripe. In his own words, he and the two or three he had taken into his confidence "were just making preparations due to our dissatisfaction so that if we desired, we would be ready to form an independent." He then began to arrange for meetings of selected individuals to discuss the formation of this organization. The first meeting was to be held in a cafe in a nearby town on December 14. A few days prior to this meeting, A. G. Rogers, the assistant working foreman who had previously been DeBone's con- tact man, sent Harry Peach, an employee in his charge, away from 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the assembly line to speak to Galpin who was nearby. Galpin then invited Peach to the meeting at the cafe . At the meeting attended by approximately 15 employees, Galpin presided and recounted to the group what he had learned from his study of independent unions. He also stated that he had definite information that whether or not the plant continued depended upon the formation of a company union. There ensued a general discussion of independent unions and organizational plans. One week later a second meeting was held at the same place, after which the group visited the office of Voorhees and Voorhees to sign the articles of incorporation for the independent union, which was by this time named Independent Automobile Workers.7 At this meeting temporary officers were informally elected. The morning after this meeting, Rogers asked Peach what had taken place. After Peach had recounted the events of the meeting , Rogers said, "All right. I will make you . . . I am going to appoint you and Red Oliver and Ray Connell as organizers of the body build." There were several meetings of I. A. W. organizers during the next few months. An organizing campaign was launched in the latter part of January 1938. By April 15 , 1938, when the Union went on strike a.s described hereinafter , 49 employees then at work had signed I. A. W. membership cards. During this period certain assistant working foremen engaged in activities which tended to benefit the I. A. W.'s organizing campaign. Thus one assistant working foreman, J. Heroux, handed an employee an I. A. W. pamphlet that he had picked up at the gate and re- marked, "Why don't you join a good union." Another, Vaughn, advised an employee named Johnson that if he pulled off his C. I. O. button and threw it in the ash can he would get along a lot better and that he (Vaughn) would see that he got a raise. Sometime later toward the end of February , just before 114 men were laid off because of a reduction in production, Vaughn asked Johnson if he had signed a membership card in the I. A. W. When he told him he had not done so, Vaughn said : "It would be a good idea, if you haven't signed it, to sign and get it in so your name won't be on the lay-off list." Thereupon Johnson took off his union button and later signed an application with I. A. W. During the organizing campaign Purvis, an I. A. W. organizer, was observed to come up to a desk in the plant during working hours and deliver signed I. A. W. application cards together with money which he had collected from initiation fees of Van Clevenger, an employee. Once when he did this Clevenger was talking to Gear- hart, foreman of the Chassis department , and his assistant, Hafs. 7 Hereinafter referred to as the I. A. W. FORD MOTOR COMPANY 177 There is no evidence that either supervisor reprimanded either man for this, although strict orders had been issued that no union ac- tivities were to be allowed in the plant during the hours of employment. With the strike of the Union the I. A. W. decided to suspend all activity until after the strike was settled and then until the present proceedings are terminated. No attempt has been made to meet with the management. The charter of incorporation has not yet been issued because more funds are needed to pay the attorney's fee than are in the I. A. W. treasury. C. Conclusions regarding the I. A. W. We have found that during the summer of 1937 the respondent, through certain supervisory employees, engaged in activities cal- culated to injure the Union. There is, however, no demonstrated connection between those activities and the formation of the I. A. W. The only circumstance tending to link the I. A. W. with the re- spondent is the assistance given the I. A. W. by certain assistant working foremen. The authority of assistant working foremen in the plant is similar to that of a "straw boss." Although they are sometimes consulted as to lay-offs and hirings, they act only in ad- visory capacities and ordinarily are not consulted at all. The fore- man makes up the lists from which men are rehired mainly from his own direct observation of the men under him. The assistant working foremen were eligible for membership in the Union, and prior to July 1937 many of them had been members. As indicated below, the Union now desires to have them included in the collective bargaining unit. It is true that Rogers had been the go-between for DeBone in the attempted formation of a company union during the early part of the summer. There is, however, no evidence that he took any part in initiating the I. A. W. The evidence indicates only that after the I. A. W. had been started, he made certain attempts to assist it. We feel that he was acting on his own initiative in these latter matters, and not on behalf of the respondent. In view of all the circumstances, the evidence does not sustain the allegation that the respondent dominated or interfered with the formation or administration of the I. A. W. or contributed financial or other support to it. D. The refusal to bargain 1. The appropriate unit At the hearing the union president testified that the Union con- sidered the appropriate bargaining unit to include all non-salaried 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD production, maintenance, shipping, receiving, and service-stock em- ployees of the respondent working at Long Beach, California, in- cluding unsalaried foremen, assistant foremen, assistant working foremen, and timekeepers, but excluding all employees working in the factory service department. The respondent made no attempt to dispute the appropriateness of this unit, and we see no reason for rejecting it as inappropriate. We find that the respondent's unsalaried production, maintenance, shipping, receiving, and service- stock employees working at Long Beach, California, including un- salaried foremen, assistant foremen, assistant working foremen, and timekeepers, but excluding all employees working in the factory service department, constitute a unit appropriate for the purposes of collective bargaining and that such unit insures to employees of the respondent the full benefit of their right to collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Union of the majority in the appropriate unit As stated above, the Union's financial secretary produced 927 mem- bership cards at the hearings. He testified that most of these had been signed between April and June 1937. These cards, together with the dues records of the Union, were compared with the pay roll for the weeks of January 10, April 15, and June 6, 1938. On Janu- ary 10, 1938, out of 775 employees within the appropriate bargaining unit on the pay roll for that date, 519 were in good standing in the Union,8 of which number 4 had signed I. A. W. application cards. On April 15, 1938, out of 648 employees within the appropriate bar- gaining unit on the pay roll for that date, 436 were in good standing in the Union, of which number 7 had signed I. A. W. application cards. No evidence sufficient to disprove this majority status was introduced. Defections which occurred after April 15 were, as we find below, the result of the disrupting effect of the respondent's unfair labor practices and hence not effective to destroy the majority status of the Union. We find that from January 10 to April 15, 1938, inclusive, and at all times thereafter, the Union was the duly designated repre- sentative of a majority of the respondent's employees in the appro- priate unit for the purposes of collective bargaining, and that pur- suant to Section 9 (a) of the Act, it was the exclusive representative of all the. employees in such unit for the purposes of collective bar- gaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. 8 The financial secretary of the Union testified that a member was not suspended from the Union for non-payment of dues until he was more than 3 months in arrears. FORD MOTOR COMPANY 179 3. The refusal to bargain Prior to 1938 there had been numerous contacts between the union representatives and various representatives of the respondent. No written contract, however, had been negotiated or executed between the parties. Despite a memorandum from the main office at Dear- born, Michigan, requiring the superintendent to make detailed verifi- cation of a labor organization's authority, to represent employees be- fore dealing with such organization, the respondent never raised any question as to the Union's right to represent the employees. At a conference in February 1938 between the union president and several officials of the respondent, the union president stated that unless a particular demand was met at least 90 per cent of the respondent's employees would go out on strike. To this Hill, the employment manager, replied that he did not believe that the Union could get 10 per cent of the employees to go on strike. Thereupon the plant superintendent reprimanded Hill and said that there was no discus- sion as to whether the Union represented a majority of the employees in the plant. During the early part of 1938 there were mass lay-offs at the plant due to decreased production. The Union took the position that the work should be spread out among the employees and that none of them should be laid off. The respondent, however, refused this. On March 4, 1938, during a temporary shut-down, the secretary of the Union wrote Johnston, the plant superintendent, requesting a conference with the bargaining committee on March 7, at a specified hour. At the appointed time, two members of the bargaining com- mittee called the office of the respondent and were informed that Johnston had gone to Los Angeles, and was not available, but that Hill, the employment manager, would "come out." After a delay of half an hour Hill came from his office and talked to them in the lobby of the main office. He announced that he had orders not to confer with them as a committee and that he would not meet them as a committee, but that he would meet each one individually if they, as individuals, had personal grievances to discuss. After, some dis- cussion, in which Hill refused to change his position, the two com- mitteemen left the office. On March 10, 1938, pursuant to written notice to all its members, the Union took a vote in which 272 voted for and 69 against author- izing the Strategy Committee to call a strike when and if the occasion should arise. The plant resumed production on April 4, 1938. Shortly before April 15, 1938, the respondent was considering a further reduction of production and personnel, and word of the prospective lay-off 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD started through the plant. During the lunch period on April 15, the Strategy Committee held a meeting at which they instructed the Bargaining Committee to approach the management on the proposi- tion of observing seniority in lay-offs and other matters. Immediate action was deemed imperative in order to have the rule in effect that day, at the close of which the lay-off was expected to take place. The Strategy Committee further determined that if the management refused to confer with the Bargaining Committee, a strike would be immediately called. Thereupon several members of the Bargain- ing Committee approached the main office for the purpose of con- ferring with Johnston. They were refused admittance to the main office by Burnett, the head of the factory service department. There- upon the work bell sounded and they were ordered to return to their work. Carse, the union president and a member of the Bargaining Committee, explained to his foreman, Elliott, that unless Johnston would agree to meet with the committee, the entire plant would go on strike. Elliott went twice to see Johnston and both times reported that Johnston refused to meet them. We find that Johnston did so refuse. After the second report, Carse notified the Strategy Com- mittee, and a strike was called at 1:30, 121 men walking out and forming a picket line. The next morning 501 employees did not work either because of the strike or because of the lay-off, 386 of them registering as strikers. At the time of the hearing the strike was still in progress and the picket line was being maintained. One hundred and nine of the registered strikers, however, had returned to work at the plant. From the foregoing facts it is evident that the respondent refused to bargain collectively with the Union, both on March 7, 1938, and on April 15, 1938. On the earlier date the respondent's superintend- ent absented himself without explanation or forewarning. He left no one with authority to negotiate with the Bargaining Committee. On April 15 Superintendent Johnston openly refused to meet the Bargaining Committee despite its repeated. requests. The respondent maintains that because no request to bargain had been made between March 7 and April 15, the request at this date accompanied by a strike threat was insincere and not made in good faith. The request made on March 7 during the shut-down was refused. Thereafter the plant remained closed until April 4, when it opened with over 650 men employed. No further mass lay-off was ordered until that of April 15. Therefore, as far as lay-offs were concerned, no further occasion for a conference arose from March 7 to April 15. It should also be noted that there is- no evidence that the Bargaining Com- mittee mentioned striking until after it had already been refused FO'R'D MOTOR COMPANY 181 admittance to Johnston's office. The immediacy of the prospective lay-off and the respondent's previous refusal to meet with them fur- nish ample explanation for the urgent nature of the demand and for the drastic steps taken to enforce the demand. In the absence of more cogent proof than it has advanced here, the respondent can- not be heard to assert, after flatly rejecting a request to bargain, that the request was insincere. The respondent further maintains that the request for a conference was. not for the purpose of discussing the prospective lay-off but in order to discuss the disciplinary lay-off of a union member for 1 week because he had engaged in a fist fight in the shop. The respondent established that this matter had been previously discussed with Hill, who was the proper representative with whom to discuss such in- dividual grievances. At that time Hill had refused to alter his original decision to lay the union member off. It is apparent from the testi- mony that the fight was one of the subjects to be discussed with John- ston, but there is no reason to disbelieve testimony to the effect that the prospective lay-off was the main reason for the desired conference. With the prospect of a lay-off of several hundred employees that night, it is not reasonable to suppose that the Bargaining or Strategy Committee would spend the time attempting to confer exclusively concerning the laying off of one employee for 1 week. The respondent, however, relies on a part of a statement made by the union chairman on May 24, 1938, at which time he was applying for unemployment relief.' The statement itself is not inconsistent with the existence of other matters to be discussed with Johnston, and we find that it does not establish the respondent's contention. The respondent might have ascertained the nature of the Union's proposals to its own satisfaction by the simple expedient of meeting with the committee as requested. It cannot now justify its refusal to negotiate by asserting that the proposed agenda was otherwise than as represented by the Union. In short, we find no satisfactory explanation whatsoever for the respond- ent's refusal to meet with the union committee. We find that the respondent, on March 7 and April 15, 1938, refused to bargain collectively with the Union as the exclusive representative of all the employees in the appropriate unit. As a direct result of such refusal a number of the respondent's employees struck. 9 The statement is as follows : "After this altercation they came up and tapped the two men on the shoulder and told them they were wanted in the office. Both men were laid off for a week ; due to the fact that we considered our man was not responsible and the other man deliberately picked the fight, we did not feel that the company was justified in laying this man off. Under the conditions we were willing to pay this man's salary for the day he lost if he were brought back the next day. That was the second altercation that happened that week . We asked for a meeting with the executives of the plant at the superintendent's office, but they refused . There was nothing else to do." 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate , and substantial relation to trade, traffic , and commerce, among the several States, and tend to lead and have led to labor disputes burdening and obstructing- commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we will order the respondent to cease and desist from such practices. In addition, since we have found that the respondent illegally attempted to form a labor organization, we shall order it to cease and desist such activities in particular. We will also order the respondent, upon request, to bargain col- lectively with the Union as the exclusive representative of its employees within the unit which we have found to be appropriate. The respondent contends, however, that the Union no longer repre- sents a majority of the employees within the appropriate unit, and that an order to bargain collectively with the Union is accordingly improper. Prior to the respondent's unfair labor practices the Union had the membership of a large majority of the employees. Because of those unfair labor practices a large number of members went out on strike. The strikers were still employees within the meaning of Sec- tion 2 (3) of the Act and were still within the appropriate unit for collective bargaining. On June 6, at the time of the hearing, 278 registered strikers were not working at the respondent's plant. There was no testimony to establish how many of them, if any, had re- ceived substantially equivalent employment elsewhere. One hundred and eight employees who had registered as strikers had at this same date returned to work and were no longer union members in good standing. In fact, on June 6 there were 148 employees working in the plant who had been members in good standing on January 10. No employee of the 393 working in the plant on June 6 was a member in good standing. Such defections from the Union were plainly the result of the disrupting effect of the respondent's refusal to bargain and the consequent strike. We cannot allow the respondent to relieve itself by the very means forbidden by the Act of the obligation to bargain collectively.1° For this reason our order to bargain is proper and will effectuate the policies of the Act. w In Matter of Inland Steel Company and Steel Workers Organizing Committee and Amalgamated Association of Iron, Steel and Tin Workers of North America Lodge Nos. 64, 1010 , and 1101, 9 N. L. R. B. 783, we said , in language equally applicable here : "The neces- F'O'RD MOTOR COMPANY 183 Since the strike was caused by the respondent's unfair labor prac- tices, we shall, in accordance with our usual custom, order the re- spondent, upon application, to offer reinstatement to their former or substantially equivalent positions to those employees who went out on strike and have not since been fully reinstated. Such reinstate- ment shall be effectuated in the following manner : All employees hired after the commencement of the strike shall, if necessary to pro- vide 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 in- cluding 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 discrimi- nation against any employee because of his union affiliation or ac- tivities, following a system of seniority to such extent as has hereto- fore been applied in the conduct of its business. Those employees remaining after such distribution, for whom no employment is im- mediately available, shall be placed on a preferential list prepared in accordance with the principles set forth in the previous sentence and shall thereafter, in accordance with such list, be offered employ- ment in their former or in substantially equivalent positions, as such employment becomes available and before other persons are hired for such work. Each of the employees thus ordered reinstated or placed on a pref- erential list shall also be entitled to back pay beginning 5 days after his application for reinstatement, pursuant to our order, in the event that respondent does not reinstate him or place him on a pref- erential list, in accordance with our order, within such 5 days. Such back pay, if it becomes due, shall consist of a sum equal to the amount the employee would normally have earned from the respondent as wages or salary during the period for which back pay is ordered, less the employee's net earnings during such period.,, sary delays incident to the adjudication of a dispute have postponed the Board 's order until a time considerably subsequent to the original wrongful refusal to bargain. The refusal to bargain collectively disrupts the morale of the men, has a deterring effect upon the organizational activity of the Union and a discouraging influence on members already gained which tends to induce them to drop from the ranks . . . If an order to bargain collectively cannot be deemed an appropriate remedy for the refusal to bargain collectively unless the [ Union's] majority is kept intact until the Board can issue a decision, the plain policy and intent of the Act will be defeated. The respondent would be permitted further to evade the obligation of Section 8 (5) by profiting from the discouraging effects of Its already accomplished violation of that very obligation . We cannot concede the validity of such a doctrine of futility , and we hold that to effectuate the policies of the Act, the respondent's refusal to bargain must be remedied by an order to bargain, based on the majority obtaining on the date of the refusal to bargain." 11 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondents , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking work elsewhere . See Matter of 283029-41-vol. 18-13 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE PETITION In view of our findings in Section III D 2, above, as to the appro- priate bargaining unit and the designation of the Union by a ma- jority of the respondent's employees in the appropriate unit as their representatives for the purposes of collective bargaining, it is not necessary to consider the petition of the Union for certification of representatives. Consequently the petition for certification will be dismissed. Upon the basis of the foregoing findings of fact and upon the entire record in the proceedings, the Board makes the following : CONCLIISIONS OF LAW 1. International Union, United Automobile Workers of America, Local No. 406, and Independent Automobile Workers, are labor organizations within the meaning of Section 2 (5) of the Act. 2. The unsalaried production, maintenance, shipping, receiving, and service-stock employees working in the respondent's Long Beach, California plant, including unsalaried foremen, assistant foremen and assistant working foremen, and timekeepers, but excluding all employees working in the factory service department, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. International Union, United Automobile Workers of America, Local No. 406, was on January 10, 1938, and at all times since has been, the exclusive representative of all such employees for the pur- poses of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By refusing to bargain collectively with International Union, United Automobile Workers of America, Local No. 406, on March 7 and April 15, 1938, and at all times thereafter, as the exclusive representative of its employees in an appropriate unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged, in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 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. Monies received for work performed upon Federal , State, county , municipal, or other work-relief projects are not considered as earnings, but, as provided below in the Order, shall be deducted from the sum due the employee, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State. county, municipal , or other government or govern- ments which supplied the funds for said work-relief projects . See Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N. L. R. B. 219. FORD MOTOR COMPANY 185 6. By dominating and interfering with the formation of a labor organization, although none was formed at the time, the respondent has engaged in unfair labor practices, within the meaning of Section 8 (2) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 8. The respondent has not dominated or interfered with, the for- mation or administration of, or contributed financial or other support to Independent Automobile Workers, within the meaning of Section 8 (2) 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 re- spondent, Ford Motor Company, Long Beach, California, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with International Union, United Automobile Workers of America, Local No. 406, as the ex- clusive representative of its unsalaried production, maintenance, ship- ping, receiving, and service-stock employees working at its Long Beach, California, plant, including unsalaried foremen, assistant fore- men, assistant working foremen, and timekeepers, but excluding all employees working in the factory service department; (b) Dominating or interfering with the formation or administra- tion of, or contributing support to, any labor organization among its employees; (c) 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 concerted 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) Upon request, bargain collectively with International Union, United Automobile Workers of America, Local No. 406, as the ex- clusive representative of its unsalaried production, maintenance, ship- ping, receiving, and service-stock employees working at its Long Beach, California, plant, including unsalaried foremen, assistant foremen, assistant working foremen, and timekeepers, but excluding all employees working in the factory service department; 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Upon application offer to those employees who went on strike on April 15, 1938, and thereafter immediate and full reinstatement to their former or substantially equivalent positions without preju- dice to their seniority or other rights or privileges, in the manner set forth in Section V above, placing those employees for whom employment is not available upon a preferential list in the manner set forth in said section, and thereafter, in said manner, offer them employment as it becomes available; (c) Make whole the employees ordered to be offered reinstatement for any loss of pay they may have suffered by reason of the respond- ent's refusal to reinstate them, upon application following the issuance of this Order, by payment to them respectively, of a sum of money equal to that which each would normally have earned as wages during the period from five (5) days after the date of such application for reinstatement to the date of the offer of employ- ment or placement upon the preferential list required by paragraph (b) above, less his net earnings during that period; deducting, how- ever, from the amount otherwise due to each of the said employees, monies received by said employee during the said period for work performed upon Federal, State, county, municipal, or other work- relief projects and pay over the amount so deducted to the appro- priate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work- relief projects; (d) Post immediately in conspicuous places in its plant at Long Beach, California, and maintain for a period of at least sixty (60) consecutive days, notices to its employees stating that the respondent will cease and desist in the manner set forth in 1 (a), (b), and (c) and that it will take the affirmative action set forth in 2 (a), (b), and (c) of this Order,; (e) Notify the Regional Director for the Twenty-first Region in writing 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 be, and it hereby is, dismissed in so far as it alleges that the respondent has dominated or interfered with the formation or administration of Independent Automobile Workers or contributed financial or other support thereto. AND IT IS FURTHER ORDERED that the petition for investigation and certification of representatives filed by International Union, United Automobile Workers of America, Local No. 406, be, and it hereby is, dismissed.