Ford Motor Co.

In the Matter of FORD MOTOR COMPANY and INTERNATIONAL UNION, UNrrED AuTomoBILE WORKERS OF AMERICA , LOCAL 425 Cage No. C-8778.-Decided May 7, 1940 Automobile Manufacturing Industry-Interference, Restraint, and Coercion: espionage at union meetings ; surveillance of union members in the plant ; 'em- ployment of servicemen to spy on union activities ; destruction of a banner announcing a union meeting ; distributing literature disparaging labor unions ; interrogating, advising, warning, and threatening employees with respect to their union membership and activities-Discrimination: discharge and refusal to reinstate employees following an annual shut-down ; charges of, sustained as to 38 employees ; charges of, dismissed as to 31 employees-Reinstatement Ordered: employees discriminatorily discharged and discriminatorily refused reinstatement-Back Pay: awarded to employees discriminated against. Mr. Edward D. Flaherty and Mr. Peter J. Crotty, for the Board. Mr. Ulysses S. Thomas, Mr. James F. Kelly, Mr. Paul W. Lapey, all of Buffalo, N. Y.; Mr. Louis J. Colombo, of Detroit, Mich.; Cravath, de Gersdorff, Swaim & Wood, by Mr. Frederick H. Wood, Mr. Alfred McCormack, and Mr. George B. Turner, of New York City, for the respondent. Mr. Daniel B. Shortal and Mr. Herman F. Kohn, of Buffalo, N. Y., and Davidow c Davidow, of Detroit, Mich., for the Union. Mr. Lewis M. Gill and Mr. Roscoe L. Barrow, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Union, United Automobile Workers of America, Local 425, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Third Region (Buffalo, New York), issued its complaint and notice of hearing dated December 30, 1937, against Ford Motor Company, Buffalo, New York, 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) and (3) and Section 2 (6) and (7), of the National Labor Relations Act, 49 Stat. 449, herein called the Act. 23 N. L. R. B., No. 46. 548 FORD MOTOR COMPANY 549 The complaint alleged in substance that the respondent, through its supervisory officials and "servicemen" at its Buffalo plant, had en- gaged in espionage and had in other specified respects interfered with, restrained, and coerced its employees; had discharged 16 named em- ployees and thereafter refused to reinstate them, because they had joined and assisted in the activities of the Union; and had discriminated against 31 other named employees by failing to reemploy or rein- state them. The complaint and accompanying notice of hearing were duly served upon the respondent and the Union. Pursuant to the notice, a hearing was held in Buffalo, New York, beginning January 11, 1938, and ending February 4, 1938, before Francis M. Shea, the Trial Examiner duly designated by the Board. The Board, the respondent, and the Union were represented by coun- sel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. After the hearing had begun, the respondent filed a written answer to the complaint, pursuant to an extension of time granted for that purpose by the Trial Examiner. In substance, the answer denied all of the allegations of the complaint except certain allegations con- cerning the nature of the respondent's business. During the course of the hearing and pursuant to leave duly granted by the Trial Examiner, an amended complaint dated January 18, 1938, was duly issued and served upon the respondent and the Union. The only new allegations consisted of the addition of the names of 2 employees to the list of those alleged to have been discriminatorily discharged, and the addition of the names of 20 employees to the list of those allegedly discriminated against in regard to reemployment or rein- statement. Following an adjournment granted by the Trial Exam- iner, the respondent filed an answer to the amended complaint, denying in substance the allegations of the amended complaint except for those concerning the nature of the respondent's business. At the close of the hearing, the complaint was amended, without objection, to conform to the proof as to dates and spelling of names. During the hearing, the Trial Examiner made numerous rulings on motions and objections to the admission of evidence. The Board has reviewed these rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. After the hearing the respondent filed with the Trial Examiner a written brief. Thereafter, the Trial Examiner issued his Inter- mediate Report, dated July 25, 1938, in which he found that the respondent had engaged in and was engaging in unfair labor prac- tices within the meaning of Section 8 (1) and (3) and Section 2 (6) 283034-41-vol 23-36 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and (7) of the Act. More particularly, he found that the respondent had distributed written attacks on the Union; had made ,warnings and threats to the employees against their activities in the. Union;, had engaged in espionage; had caused the destruction of a 'union banner displayed across the street from the plant; and had discrimi- nated in regard to the hire and tenure of employment of 50 of the employees listed in the complaint and amended complaint. He also, found that the respondent had not discriminated against 12 other employees. As to certain other employees, he dismissed the.allega- tions of the complaint and amended complaint, inasmuch as no evi- dence had been introduced relating to them. He recommended that the respondent cease and desist from its unfair labor practices, offer reinstatement and back pay to the employees found to have been' discriminated against, and take certain other action designed to effec- tuate the policies of the Act. In his Intermediate Report, the Trial Examiner also made rulings on certain motions and objections on which he had reserved ruling at the hearing. We have reviewed these rulings and find that no prejudicial errors were committed. The rulings are hereby affirmed. Thereafter, the Trial Examiner issued an Amended and Supple- mental Intermediate Report, dated September 6, 1938, in which he made findings as to certain offers of reemployment, as to which evi- dence had been adduced at the hearing, but which he had not discussed in his Intermediate Report. He concluded that the recom- mendations of the Intermediate Report should remain 'unchanged. The Intermediate Report and Amended and Supplemental Interme- diate Report were duly served upon the respondent and the Union. Pursuant to an extension of time duly granted to the respondent for filing its exceptions to the Intermediate Report and the Amended and Supplemental Intermediate Report, the respondent filed such exceptions on September 16, 1938. ' Pursuant to a* request by the respondent, the Board scheduled a hearing for the purpose of oral argument in Washington, D. C., on November 1, 1938. Subsequently, upon a further request by the respondent, the date for oral argument was postponed until Novem- ber 9, 1938, and the time allotted the respondent'for argument was increased. ' On October 29, 1938, the respondent filed with' the Board' a motion that the Board appiove,'adopt,'and make part of the record a•certain stipulation and an affidavit, 'or,' in the alternative, `grant leave to adduce additional ' evidence.' The` motion also requested -that` the Board • grant to the 'respondent leave to object, except,' and argue to 'any other or further` findings, report, or memorandum 'furnished FORD MOTOR COMPANY 551' the Board in connection with- the proceedings. . The stipulation re- lated to certain relevant factual matters on which the record made at-the hearing was incomplete, and was signed by counsel for the respondent, counsel for ^the -Union, and counsel ' for • the Board. On November 2, 1938, the Board issued an order' directing that the stipu- lation be approved and made a part of the record, and that the respondent's motion be in other respects denied. Oral argument was had before the Board in Washington, D. C., on November 9, 1938. The respondent and the Union were repre- sented by counsel and participated. The respondent at that time submitted a written brief in support of its exceptions to the Inter- mediate Report and the Amended and Supplemental Intermediate Report. On April 19, 22, 25, and 29, counsel for all the parties executed a stipulation that certain exhibits might be withdrawn from evidence and copies thereof substituted for such exhibits. It was further stipulated that the substituted exhibits should be considered a part of the record in the case. We have considered the respondent's exceptions and brief and, to the extent that they are inconsistent with our findings, conclusions, and order set forth below, find no merit in them. Upon the entire record in the case, the Board makes the following : FINDINGS OF FAcT I. THE BUSINESS OF THE RESPONDENT 1 The respondent is a Delaware corporation having its main offices at Dearborn, Michigan. It is engaged in the manufacture, assembly, sale, and distribution of automobiles, automobile trucks, tractors, and automobile parts and accessories. It has numerous assembly plants and sales branches located throughout the United States. It also has associated companies with manufacturing plants, assembly plants, and offices in a large number of foreign countries. The only plant involved in this proceeding is the assembly plant at Buffalo, New York. Most of the materials used in this plant are parts and accessories, sent by rail, truck, and boat from Michigan. Between July 1936 and July 1937 materials valued at approximately $24,600,000 were received at the Buffalo plant. During the same period, approximately 47 per cent of the finished cars and accessories which were assembled at the Buffalo plant were distributed to points outside the State of New York. I The international character of the respondent 's business is more fully described in Matter of Ford Motor Company and International Union, United Automobile Workers of America, 14 N. L. R. B. 346. < :. 552 --DECISIONS ' OF.,NATIONAL, LABOR aRELATIONS .WARD II. THE ORGANIZATION INVOLVED International Union, United Automobile Workers of America, Local 425, is a labor organization affiliated with the Committee for Industrial Organization.2 III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion 1. Espionage at union meetings Organizational activity among the employees in the respondent's Buffalo plant began early in May 1937. Irwin F. Kohn, an organizer for the Union, was in charge of the drive, and the first employees of the respondent undertaking to assist him were Walter Sredzinski, Andrew Sredzinski, Leo Krzyzykowski, Martin Socenski, and Alfred Kupkowski. The first meeting of the Union was held on May 8, 1937, at the Root Building, which is located on West Chippewa Street in Buffalo. In addition to a front entrance facing on the street, this building has a rear entrance which can be reached through a parking lot situated behind the building. Two "servicemen" of the respondent, J. D. Sullivan, Jr., and George Maeder, and the respond- ent's employment clerk, John Maroone, appeared outside the build- ing before the meeting began. Certain employees who arrived for the meeting did not go in when they saw Maroone and the servicemen on the scene. Maroone asked at least two of the employees what they were doing there. Sullivan and Maroone not only watched the front entrance, but went back into the parking lot in the rear. In general, the testimony of the employee witnesses is convincing that Maroone and the servicemen were engaged in active and thorough surveillance of those undertaking to attend the meeting. The same is true as to the next meeting of the Union, which was held on May 15, 1937, at Broadway and Ash Streets in Buffalo. Maroone and Sullivan drove back and forth past this meeting place in a car, watching the men as they arrived. They left the vicinity only upon the request of Father John P. Boland, then Regional Director for the Board. In explanation of these occurrences, James E. Malone, head of the factory service department, testified that he had investigated and learned that Maroone, Sullivan, and Maeder were en route to a ball game on May 8, and happened to lunch near the Root Building. Their presence in the parking lot at the rear he explained by saying that Sullivan's car was parked there. Maeder, he stated, was sta- tioned across the street from the front entrance for the purpose of getting his shoes shined. Malone also testified that he had learned 2 Now Congress of Industrial Organizations FORD MOTOR COMPANY 553 that Maroone's presence at the scene of the second meeting at Broad- way and Ash Streets was occasioned by his desire to purchase, in that Vicinity, some uniforms for a baseball -team -in, which he was interested. Maroon testified, and merely stated, that on May 8 and May 15, the dates on which the meetings were held, he was not engaged on company business. He admitted speaking to two of the employees near the Root Building. Time cards introduced into evidence purported to show that Maroone, Sullivan, and Maeder were not paid for the afternoons on which these events occurred. We do not regard this evidence as establishing that the three men were not carrying out their duties in the respondent's employ at these times. At the oral argument, counsel for the respondent con- ceded that the three men "were presumably curious about what was going on at the first meeting of the Union,` and they just-..went in there to see what was going on." Maroone is referred to by the respondent merely as "employment clerk." The record shows, however, that he has much more responsi- bility than is normally associated with the term "clerk." It is true that Maroone has a number of clerical duties, but he has more responsible functions as well. When a foreman desires to have a man laid off or discharged, it is Maroone who hears the foreman's story and, separately, the employee's story. Maroone then reports on the case to Edward C. Miller, the superintendent of the plant, who makes the decision. It is thus clear that in dealing with the respond- ent's personnel, Maroone is an ' important , representative of the management. On the basis of all the evidence, we find that Maroone, Sullivan, and Maeder were engaged on the respondent's behalf in surveillance of the union meetings on May 8 and May 15. In view of Maroone's position, and under the circumstances of this case, set forth below, we find that the respondent stands responsible for the actions of Ma- roone and the servicemen in spying on the union meetings of May 8 and May 15. At the hearing Superintendent Miller testified to the effect that the presence of these men at the union meetings could not have had any coercive effect on the workers. It is clear from the evidence, however, that their presence and actions not only could have had,3 but actually did have, the effect of interfering with, re- 8 In Virginian By Co. v. System Federation No. 40, Railway Employees Department of the American Federation of Labor et al, 84 F ( 2d) 641, 643 ( C. C. A. 4, 1936 ), affirmed, 300 U. S 515 (1937), the Court said : It must be remembered in this connection , however, that any sort of influence exerted by an employer upon an employee , dependent upon his employment for means of livelihood , may very easily become undue, in that it will coerce the employee's will in favor of what the employer desires against his better judgment as to what is really in the best interest of himself and his fellow employees. Cf. Matter of Mexia Textile Mills and Textile Workers Organizing Committee, 11 N L R. B 1167 , 1171 , enf'd Mexaa Textile Mills v National Labor Relations Board, 110 F. (2d) S65 (C. C. A. 5). 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD straining, and coercing the employees in the exercise of their right to self-organization. 2. The banner incident On May 14,_1937, Irwin Kohn and Otis Mosier, organizers for the Union, secured permission from the manager of a gasoline station to exhibit at the station a banner announcing a meeting to be held by the Union. The gasoline station was located across the street from the respondent's plant and about 300 yards distant. About 3: 30 p_ m. on that day, the time for the change of shifts in the plant, Mosier and Kohn attached the banner to the ends of two sticks and held it up so that employees entering and leaving the plant could see it. The banner read : "United Auto Workers Meeting C. I. O. Ford Employees, Saturday, May 15, at 3:00 o'clock p. m., Marr's Hall, 272 Broadway, Corner of Ash." George A. Laird, Jr., a reporter for the Buffalo. Evening News, was present when the banner was displayed: A short while after they had set up the banner, a group of about nine men emerged from the plant and approached the scene. As they arrived, one of them remarked : "What in hell are you guys pulling off ?" The group from the plant immediately proceeded to tear the banner from the sticks and rip it to pieces. They then re- turned to the plant. Mosier, Kohn, and Laird departed after Laird had telephoned, the story to his paper. At the oral argument, counsel for the respondent conceded that "we do not claim to have the right to tear down union banners," but asserted that the foregoing evidence failed to reveal that the respond= ent was responsible for the incident, and characterized the affair as ",wholly trivial" in any event. We do not agree that the incident may be brushed aside as trivial; the important question, to which we now address ourselves, is whether the respondent was responsible for its occurrence. Kohn identified Maroone, the respondent's "employment clerk," as one of the group from the plant. Maroone had been pointed out to him at the Root Building meeting on May 8 by one of the em= ployees, and he knew him by sight. Laird did not know the men from the plant. Mosier was also unacquainted with them, but noticed a gun sticking out through the front of the coat of one of them. Edmund Bines, an employee of the respondent, testified that on May 14 he arrived at work about 3: 05 or 3: 10 p. m. with one Frank Crystal, another employee. As they entered the plant and punched in, Maroone and Casey Moran, an employee, intercepted them. According to Bines' testimony, Maroone said to Crystal : "Frank, you had better come along with me." Crystal joined Maroone and Moran and proceeded toward the time clock, while Bines went in to work. FORD MOTOR COMPANY 555 Lawrence Lawler, another employee, testified that on May 14, shortly after 3 p. in., he arrived at the plant and noticed Maroone, Crystal, Bruno, Luczak, and Eddie Klump, assistant head of the service 'department, standing together in the plant office, which he could see 'clearly through glass partitions. He was absolutely certain that'he saw 'Crystal there with the others. ^ Bernard Beck, an employee who was quite friendly with Crystal, testified that as he was going to the plant to work that afternoon, he passed a group coming out of the plant. In the group were Luczak, Moran, Maeder (a serviceman who had spied on the Root Building meeting), a few other servicemen whose names he did not specify, and Crystal. He testified that he admonished Crystal : "Frank, you are going the wrong way." Crystal said nothing. Frank Snyder, another employee, testified that he also saw the group of men going out of the plant as he was entering that afternoon. He identified Maroone, Klump, Moran, Luczak, and Crystal as being included in the group. He saw the group proceed to the gas station and destroy the banner. . Other testimony by Board witnesses fills in the story. Snyder testified that later that afternoon in the plant he asked Luczak why they had torn down the banner, and that" during the conversation which followed, Luczak informed him that a serviceman had stopped him as he was coming in the plant and had told him to go upstairs and sign some sort of paper to the effect that if he was hurt there would be compensation. Edward Czarnecki, another employee, tes- tified that Crystal told him that Malone had picked out eight or nine of the men and instructed them to go along with Maroone and Klump on the occasion of the banner incident. Bines testified that at about 8: 00 p, m. on the evening of May 14, as he and Crystal were lunching together in the plant, Crystal remarked : "Gee, I think the boys think I am a rat. I went out with the rest of the factory service men, me and Bruno and some others, and I only stayed there while they tore down the sign. I don't know what to do about it. I might quit the job." On the following Monday, May 17, Bines heard Maroone tell Crystal to see Malone. Later in the day, Bines testified Crystal informed him that Malone had said : "If we ever get called in Court on account of that sign, I want you to go and say that you didn't work, or something like that, see." Bernard Beck, another employee, testified to a conversation which he had with Crystal after the incident, and ascribed the following remark to Crystal: "I was picked. I didn't know where I was going, and if I wouldn't go with him, I probably lose my job." It appears elsewhere in the record that Casey Moran, Bruno Luczak, and Frank Crystal are wrestlers during their spare time. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Crystal testified that on May 14, as he was riding to work with Bines and John Ott, a subforeman or pusher,4 he saw the banner. According to his testimony, when he reached the plant he heard a lot of talk about the sign and' decided' to go out and Tsee it again. He said that he then went out alone, walked along the street on the plant side, and when he came to cross over at the point where the sign had been, noticed the sign lying at the curb with no one around. He testified that he then started back toward the plant, met Maroone and Klump coming from the plant, and was asked by Maroone : "What the hell are you doing here?" He said he did not remember whether he had talked with Bines about the banner, but later changed this to a flat denial. Maroone testified that he left the plant on May 14 without au- thority, that he had not been requested by any superior to perform any special duties that day, and that Miller subsequently told" him' that if he left the plant again during working hours without per- mission there would be a new. "employment clerk." He was not asked about the details of his conduct in the incident, except that counsel for the Union asked him what appeared on the banner, to which Maroone replied : "I never saw the banner." Maroone's testi- mony on the point is vague and unconvincing, and we find that he did participate in the incident in the manner described by the other witnesses. Malone testified that he heard of the incident on the afternoon of May 14, but did nothing about it once he learned that no time passes had been issued and that it had occurred off company property. He also testified that Klump reported to him concerning the incident. Upon being asked whether or not his investigation of the incident showed that Klump and Maroone went to the scene of the banner display out of curiosity, he replied : "I found that Maroone went there for curiosity." William L. Yule, manager of the Buffalo plant, testified that he was out of the city on May 14, and read an account of the incident in the newspaper upon his re- turn the following Monday. He sent for Malone and asked him about it. He further testified : "Well, as soon as I found out the incident happened across the street outside of the plant I didn't consider it was anything involving the Ford Motor Company and made no further investigation." Luczak, Moran, Klump, and Maeder did not testify. A consideration of all the testimony convinces us that Crystal and Maroone testified falsely. We find that the facts are substantially as related by Kohn, Mosier, Laird, Bines, Lawler, Beck, Snyder, 4 The terms apparently are synonymous. In at least one department there are pushers or subforemen, an assistant foreman, and a foreman. FORD MOTOR COMPANY 557 and Czarnecki and that the destruction of the banner was instigated by Maroone and Klump and later condoned by Malone and Yule. Maroone's important position in the employment office and Klump's status as assistant head of the service department 5 attach to the respondent responsibility for their actions. Malone and Yule are the principal officials in the plant. We further find that the de- struction of the banner served to signify to employees the respond- ents hostility to the Union and constituted interference with, restraint, and coercion of the employees in the exercise of the rights guaranteed in Section 7 of he Act. 3. The role of the servicemen We have already described the important participation of certain servicemen in the banner incident and the espionage at the early meetings of the Union. These events, together with numerous other activities of servicemen to be discussed presently, raise the question of the respondent's responsibility for the actions of these men, a mat- ter requiring discussion in some detail. The head of the service department is Malone, who is responsible directly to Yule, the plant manager. Malone testified that the men in his department have a variety of functions, such as inspecting fire equipment, keeping the aisles and passageways clear, and so forth. The men who patrol the plant make hourly reports from various telephone stations in the plant. By staggering, the shifts of the men, the plant is kept under their surveillance 24 hours a day. In the event of damage to equipment, the servicemen in the plant undertake to track down those responsible for it. In April 1937 there were 46 men in all in the factory-service department, of whom 23 were designated as "watchmen" and were assigned to patrol the plant. Sometime in April 1937 the respondent added 11 servicemen to its staff. Yule explained that this was due to current reports of an impending attempt to organize a union at the plant. He stated that extra men were deemed necessary "to protect,our property" and "to prepare ourselves for whatever might arise." Most of these extra men were former railroad police, sent to Malone by a friend of his who was Captain of Police at the Pennsylvania Railroad. There is considerable testimony in the record as to interference by these servicemen with the organizational efforts of the employees. Without setting forth all of it, several examples in addition to the banner incident and the espionage at union meetings are worth noting. Numerous witnesses testified that during May 1937 the servicemen became very active, keeping the employees under close surveillance. Q Klump acts as head of the service department in Malone's absence 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD One witness testified that shortly after he joined the Union in June, "they kept spying-on me and they watched me as I would eat during lunch." He continued : "Some worked and they walked and some sweeped five to ten yards up and back, and back and forth, and some kept on gazing and watching." • Another witness testified that the servicemen gathered around the men when they were eating lunch, and otherwise would "just stand around and keep behind the boxes and spying on the men." Another witness stated : "Well, they would be walking up and down the line and probably two of them would get together and say something, get behind the stock bins and just watch back and forth and if they could see two or three men that were talking together, sort of listen to the conversation." The men often discussed unionization during the lunch periods. One of the witnesses, referring to the influx of new servicemen after the decisions of the United States Supreme Court in April 1937 sustaining the constitutionality of the Act, testified : "I noticed there were at least three strangers parading up and down the line in the body shop. When I first noticed, I thought someone had got away from the guide. It was total strangers." Another witness, who had joined the Union, on one occasion had a 'serviceman sitting on either side of him as he ate lunch. - There was other testimony that servicemen stood around the fountains'- when' the men would go -for a drink, followed members of the Union into the lavatory, and accompanied the men when they went outside to-smoke. - - - • Another witness testified that "they would stand there and watch the fellows and when they talked they would come right up behind them." Another observed : "Never saw them do any work but I saw them do plenty of spying on the men." It is evident from the whole record that John Clark, one of the employees, voiced the sentiments of the employees generally when he testified : "That is a known fact; the conditions out there of the service men are just a police de- partment." . It is clear from the above testimony, which was corroborated by many other witnesses, that the servicemen were engaged in keeping the employees at the plant under close surveillance. That this was in substantial part for the purpose of ascertaining who were members of the Union and was also directed toward ridding the plant of union men is indicated by other testimony. Vincent Lipira, a union member who was subsequently discharged, was accosted at his bench one day late in June by a serviceman who attempted to draw him out on the, subject. of a strike then in progress in Detroit. • Lipira parried the questions of• the serviceman, however,, and 'did not admit any sympathy for the strikers. Otto Otte, another union member, also successfully withstood an attempt by a serviceman to draw him into a conversation about a sit-down strike. FORD MOTOR COMPANY 559 Lawrence Lawler, an employee, had attended the union meeting on May 15 at Marrs Hall at Broadway and Ash Streets in Buffalo. A week or two thereafter, Klump,, assistant head of the service de- partment, came to the cushion department where Lawler worked and, together with Foreman Maue of the department, passed among the men looking at the badges of some-of them. Passing up sev- eral, of the men, they stopped and_ looked. at the badge of Harry Strash, who had been at the union meeting on May •15. Skipping another man, they came to Lawler and looked at his badge, after which they left. As set forth below, both' Strash and Lawler sub- sequently were discharged. Frank Snyder, an employee who had attended the first union meeting at the Root Building on May 8, worked on the trim line. Snyder is somewhat lame. ' Previous,to,Snyder's;discharge,, discussed below, a serviceman approached Joseph Malecki, a subforeman, and said, referring to Snyder : "There is a lame man working on the trim line. I would like to get something on him." However; Malecki refused to cooperate in this endeavor. William Kalman, an employee, testified that during August 1937 Malecki, ' accompanied by a serviceman, obtained his number: Malecki testified that the serviceman ordered him to obtain the number and that the serviceman then told him, "Get him [Kalman] out." About the middle of May 1937 Bernard Czarnecki, an employee in the trim department, had some-tickets to a dance, and undertook to sell a few 'during his lunch hour. He was talking to some of the men on the matter and upon removing the tickets from his pocket heard a noise overhead. He looked up and saw a serviceman watching him through a "transom." Seeing the tickets, the service- man "almost fell' out of the transom." He immediately came down and demanded to know of Czarnecki, "What have you got?" Czar- necki testified further: "He thought I was signing up members'and I told him I got tickets to a dance." In view of the activities of servicemen shown by' the whole record, it is plain to, us, and we find, that the serviceman here was attempting to catch Czarnecki in the act of distributing union cards. During June or July 1937 Weldon Farnish, an employee in the body shop, was asked by his foreman, one Holden, "Who is passing out these'cards 'out here?" Farnish replied: "What kind of cards do you mean?" Holden explained: "Union cards are being passed out. Factory service know they are in here." Upon - Farnish's as- sertion that he knew nothing about it, Holden said: "You should. I understand you are in it." 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alexander McMullen, an employee in the enamel department, tes- tified that his pusher, Reno, told him that Klump had asked Reno to "do a guy a favor" and let him know "if you have anything about the Union or know anybody belongs to it." As previously noted, Klump is assistant head of the service department. McMullen's tes- timony was uncontradicted; neither Reno nor Klump was called by the respondent. to testify. We find that Klump made the above re- quest of Reno. This is corroborated by the undenied testimony of another employee, Ruckie. Ruckie was talking with Klump, one Saturday evening following the September lay-offs, discussed below, and inquired why the older men, such as himself, were not being taken back to work. Klump asked: "Were you doing any talking?" and added that his [Klump's] job was "to find out who is doing all the talking in the shop." In the light of the record as a whole, we find that Klump was referring to "talking" about the Union. All the above facts take on added significance when considered in the light of the discharges and other discrimination against union members, treated below. On the whole record, we find that the servicemen by their activities described above were actively engaged in identifying union members and combatting union activities, that the activities of the servicemen had the sanction of Klump, assistant head of the department, that the respondent made no effort to prevent such activities, and that the respondent through its officials, pursued a consistent course of anti-union action, which paralleled closely the activity of the servicemen. The respondent, having hired the service- men as representatives of the management to engage in general sur- veillance of the plant, stood responsible when the actions of the serv- icemen took the form of unlawful interference with organizational activities." In addition, in view of the above facts and on the whole record, we are convinced that at least one of the purposes for which the servicemen were employed was to effectuate the prevention of or- ganization at the plant, and we so find.7 6 See N. L. R. B. v. A . S. Abell Co., 97 F. (2d ) 951 (C C. A. 4), modifying and enfg Matter of The A S. Abell Company, a corporation and International Printing and Press- men's Union, Baltimore Branch, Baltimore Web Pressmen's Union, No. 31, 5 N. L. R. B_ 644, where the Court said : The doctrine of respondent-superior applies and the management must assume responsibility for the actions of its supervisory officials even though it had no actual participation therein. See also Swift & Co. v. National Labor Relations Board, 106 F. (2d) 87 ( C. C. A. 10), enfg Matter of Swift & Company and Amalgamated Meat Cutters and Butcher Workmen of North America, Lodge No 641, and United Packing House Workers Local Industriar Union No. 300, 7 N. L R B. 269 7 See Matter of Ford Motor Company and International Union, United Automobile Workers of America, 14 N. I R. B. 346 FORD MOTOR COMPANY 561 4. Coercive conduct of the respondent's supervisory employees Each department in the plant is supervised by a foreman. The foremen are assisted by subforemen or "pushers." It is clear that the pushers, as well 'as the foremen; have supervisory duties. Joseph Malecki, a pusher in the body shop from 1930 until his discharge on October 18, 1937, described his duties as follows : ". . . to check in the men in the morning . . ., supply them with the stock that they needed, see that the machinery was in good condition and see that my production was done." Toward the end of his employment he was in, charge of 22 men. At times the pushers had from 40 to 44 men assigned to them. Joseph Jaworski, a pusher from 1934 to 1937, had about 65 men working under him. Vincent Lipira, a pusher for approximately 11/2 years, described his duties as follows : "To carry out the orders of my superiors, such as keeping the men at work and seeing that I got my work in quality, as well as having to keep the men on the job and seeing that I got out all the work that was necessary for the hour or day." When more help is needed, the pushers sometimes recommend employees for reinstatement. Events discussed hereinafter clearly show that the respondent en- listed some pushers 8 in its plan to restrain its employees from joining the Union or participating in its activities, and that to this end these, as well as other pushers who were in all probability likewise enlisted, questioned the employees concerning their union activities and warned the employees that should they engage in union activities they would be discharged. We find that the pushers are supervisory employees .9 The activities of the servicemen were supplemented by similar in- terference on the part of the respondent's supervisory employees. Much of the evidence of this sort has a direct bearing on certain of the individual cases of discrimination discussed later, but may be mentioned briefly here to indicate the full scope of the respondent's anti-union campaign. We have already noted the espionage at the union meetings of May 8 and May 15. That the information so obtained by the respondent was 8 The respondent is obviously responsible for the anti -union activities of the pushers so enlisted , since they were acting upon the respondent 's direct orders. 9 In Matter of Ford Motor Company and International Union, United Automobile Workers of America, Local No 406, 18 N. L. R. B 167, we did not attribute to the respondent responsibility for the activities of certain "assistant working foremen" in circulating a petition opposed to the formation in the plant of a national labor organiza- tion In the same case, however, we attributed to the respondent responsibility for certain anti-union statements made by an "assistant foreman." In the instant case, the pushers, foremen, and servicemen were clearly linked in a common design to curtail union activities. Under these circumstances the two cases are clearly distinguishable. See Matter of Ford Motor Company and United Automobile Workers of America, Local No. 325, 23 N L. R. B 342 See also footnote 13, infra 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD put to use is shown not only by the fact that a large proportion of the men attending these. meetings were subsequently discharged, but also by certain direct eyidence on the point. Thus on the Monday immedi- ately ' following the May 8 meeting at the Root Building, Alfred Kupkowski, an, employee, saw'Maroone and Jenners Edgecomb, a fore- man, walk by the line and engage his pusher, known as "Mike," in conversation.', Following the conversation, which Kupkowski did not hear, the pusher came over, to Kupkowski, who had attended the meet- ing, and told him : "You had better watch your job, they will be laying for you, they have got you spotted for that meeting you attended last- Skurday." On the same day, Andrew Sredzinski, who had also attended the meeting on. May 8, was warned by Mike Bekovitch, his pusher, that "they got you spotted" for joining the Union. About a week after the same meeting, another employee, Walter Sredzinski, who had attended, saw Maroone and Edgecomb nearby conversing excitedly and pointing at him. Another employee, Edward Rich, started out to attend the Root Building meeting, but did not' go in when he saw Maroon and some servicemen lurking in the vicinity. Nevertheless, on the following Monday, when he came to work, his foreman, one Ostrom, greeted hlin as "Mr. Lewis, )110 and subsequently complained to him,: "Why did you want to join the UnionV You are making plenty of money." There are other instances showing that the respondent was bent on hampering organization at the plant. Bill "Peanuts" Fretas,ll fore- man on the body line, on one occasion remarked to Edward Kania, an employee working under him: "I heard you belonged to the Union ... Never mind who told me." Kania did not admit it openly, and Fretas enjoined him to answer "Yes or no." Kania responded: "Well, yes or no." Fretas warned him : "You better not join it; it will be better for you." Sometime in July, William Fiorito, the body-construction foreman, approached William Kalman, an employee in his department, and said : "Bill, I hear you joined the union." Kalman purported not to have heard him due to the noise, but Fiorito repeated the observation, and Kalman finally admitted that he was a member, asking Fiorito who told him. Fiorito explained : "I got good information." Kalman then asked whether he could work if he was in the Union, and Fiorito replied : "For my part you can but there is somebody else in this plant, not only me, and you better watch your step.7' 10 The transcript of the record has the name spelled "Louis" at this point. However, the surrounding circumstances make it clear that Ostrom was applying, to Rich the name of the head of the C. I. 0, John L. Lewis, and we so find. n This foreman is referred to as Fretas, Fredus, and Fredo in the record. It is clear that all these references are to the same foreman. FORD MOTOR COMPANY 563 Otto Otte, an employee: in the hood department, joined the Union about the middle of May. Shortly thereafter he was told by one "Steve," an assistant foreman : "There is one thing I want to tell you, we are going to get a raise pretty soon, that means we are going to get ten dollars a day. You can believe that, but there is one thing that I want to tell you, stay away from the union and never mention any- thing about union in this shop; and you are going to get $10 a day." On other occasions Foreman Ostrom told groups of employees that "Ford would pay ten dollars a day before they would ever let it [the Union] into the plant." Kasimer Czerwinski, who worked on the trim line, was asked by his pusher, one "Louis," if he knew of anyone that belonged to the Union. The pusher added that "anybody belongs to the union is crazy." John Wurzer, a metal finisher, was advised by Andy Reno, a pusher, that "If they find out you are a Union' man, they will throw you out through the window." Anton Agoston, an employee on the cabriolet line, was told by George Hathaway, a pusher : "Be careful what you are talking about. They are firing fellows for talking about the union and joining the union. A couple of fellows just got fired." Whitey Malecki, another pusher, warned Andrew Learch, an em- ployee on the body line : "Watch your step, and don't talk anything about union, because you will lose your job." Malecki also cautioned Frank Snyder, another employee : "Don't talk union at all or they will fire you." The activities of two particular supervisors , Foreman Ostrom and Subforeman John Ott, are worthy of special attention . About May 5 - Ott summoned a number of employees to'a meeting with Ostrom, who is foreman of the trim department. Ostrom told the men that they should cut.out talking about the Union , that the Union could do nothing for them that the respondent could not do , and that they should forget about it and go out and have a beer. Ott, evi- dently deeming that Ostrom's remarks were insufficiently clear, added : "I want you boys to cut this out about this God damned union, or you will be God damned sorry; I am warning you." Ostrom 'in, no way indicated that ,Ott's sentiments were different from his own: -About the middle of May, Bernard Czarnecki, an employee in the trim department , overheard Ostrom and some pusher convers- ing near his bench . Ostrom said to the pusher : "We will give the old men the works. Get 'rid of them somewhere. There are too many union men. Organize, to organize, all you hear is talk about union, union, by those men, and we have'to get rid of them.' Edward Lyczynski, another employee on the trim line, had two . encounters -with Subforeman Ott in July or August 1937 . On the first occasion, Ott came over to him at the plant ' one' night and 'asked : "Say, what is the color of the union card? " Lyczynski feigned ignorance, asking 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD what Ott was talking about. Ott retorted : "You know God damned well what I am talking about," and walked away. The next day Ott admonished Lyczynski : "You and plenty others like you that are fooling around with the union will get a grand screwing." Ly- czynski asked him what he meant. Ott explained : "You will find out when we change the models." All the above statements by foremen, subforemen, or pushers, are undenied; the supervisors to whom the statements are attributed were not produced to testify. In its brief, the respondent asserts that the statements of these supervisory employees were not in any way coercive and were merely the "personal views" of the foremen and subforemen and were understood as such. In view of the nature of the statements as set forth above, this argument is plainly without merit. Another contention advanced in the brief is that the respond- ent is not responsible for the activities of its foremen, subforemen, or pushers. It is argued that any anti-union activities on the part of the respondent's supervisory employees were unauthorized digres- sions from the respondent's alleged policy of noninterference with organizational matters. It is clear, however, that the acts of a super- visory employee are the acts of the employer.12 The respondent nonetheless contends that it is not responsible for the acts of its supervisory employees because they had no authority to hire or dis- charge employees. Nothing in the Act, however, limits an employer's responsibility for the anti-union activity of its supervisory employees, to employees having the power to hire or discharge 1$ On the basis of the record in this case, it is entirely clear that the respondent is responsible for the anti-union activities of its foremen, assistant foremen, and subforemen, or pushers. 5. The publication and dissemination of anti-union literature The Ford Almanac is a publication sent out about once a month by the respondent's Dearborn office for distribution to Ford em- 12 See footnote 6, supra 12 See International Association of Machinists, Tool and Die Makers, Lodge No. 85, Affiliated with the International Association of Machinists , and Production Lodge No. 1200, Affiliated with the International Association of Machinists v. National Labor Relations Board, 110 F. (2d) 29 (C A for D. C.), enf'g Matter of The Serrick Corpora. tion and International Union, United Automobile Workers of America, Local No. 459, 8 N. L. R B. 621, where the Court said : The statute, we think purposely, does not define the particular methods or agents by which the employer may Intermeddle unlawfully. Had it done so, easy escape would have been opened from the Act's provisions . Nothing in it requires that such repre- sentation be limited to officials having any particular kind or degree of authority, such as "hiring and firing," "disciplinary power," or even "supervisory capacity." And see also Virginia Ferry Corp. v. National Labor Relations Board, 101 F. (2d) 103 (C. C. A. 4) enf'g as mod. Matter of Virginia Ferry Corporation and Masters, Mates and Pilots of America, No. 9, et at., 8 N. L. R B. 730. FORD MOTOR COMPANY 565 ployees. At the Buffalo plant, copies of the Almanac are placed near the plant entrance for employees to pick up. A copy of the Almanac for the month of July 1937 contains two attacks upon labor unions. One is entitled "Mr. and Mrs. Watkins Learn Some-, thing about Wealth." Among the disparaging references to labor unions in this article is the following : I'm giving you the STRAIGHT TRUTH OF THIS WHOLE MATTER. Didn't you read in the papers last week how all the other big automobile manufacturers whose shops have been taken over by the labor organizers, had a meeting in New York TO STANDARDIZE WAGES? Know what that means? It means putting the WORKMAN in exactly the same position as the manufacturer. He will no longer have the right to say what HE will work for. His organization will say to him : "This is the price we have agreed on with the manufacturers for this job in ALL automobile plants. YOU'LL take it and LIKE IT-OR YOU WON'T WORK." That's what they'll tell him. They can't make it stick yet. They haven't yet got FORD in the bag. But should the time ever come when the finan- ciers grab control of the labor situation at Ford's, as they have at all these plants, I'm telling you-and I mean it from the bottom of my heart-THAT WILL BE THE GREATEST BLOW HIGH AMERICAN WAGES HAVE EVER BEEN DEALT. The second attack on unionism contained in the Ford Almanac appeared under the title of "Musings of Smoke-Stack Joe." The following statements are taken therefrom : SHILLBERG-HA HA ! I'll bet when he hears Ma's gone he'll be over to the house •tryin' to join me up to this labor racket. None of THAT FOR ME, either. Why should I pay money to a gang FOR NOTHING? They can't give me a single thing MORE'N I ALREADY GOT. Never had to pay to work before-why start NOW. 'Specially when they won't show me the books and let me see what they do with MY MONEY. IF I PAY money for groceries, I GET GRO- CERIES in return. If I pay money for a suit, I GET A SUIT IN RETURN. Why should I pay money to this crowd FOR NOTHING? And look who's asking-all these fellows who got their labor movement education in RUSSIA . . . It all looks and smells like COMMUNISM to me ... They say they've got 200,000 members, 24 hundred thousand -2 million, 4 hundred thousand dollars a year. Ha-that's where all the big cars, airplanes, swell offices, big salaries and all the rest of it comes from . They don't DARE give the members a financial 283034-41-vol. 23-37 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD accounting. If you ask for one you get BEATEN. Darned if I join a RACKET LIKE THAT. A reprint from the Detroit News of April 29, 1937, entitled "Ford Gives his Viewpoint on Labor-Cautions Workers on Organization," was similarly received from the main office at Dearborn and dis- tributed in pamphlet form to the employees at the Buffalo plant. This pamphlet contains the following statements : A monopoly of jobs in this country is just as bad as a monop- oly of bread. Sometimes we catch people here in Detroit "sell- ing" jobs at the Ford Motor Co. by making ignorant persons believe they have a "pull" with us . . . This was done by crooks and they were properly dealt with. But, now along comes another group that says : "There are 100,000 jobs out at Ford 's. If you want one of them, pay us a registration fee, and so much every month, and we will pass you in, and you can work as long as you pay us." This group is asking us to sit still while it sells our men the jobs that have always been free. If we agreed to this , they would have com- plete control of American labor, a control no one has ever before had. ... What was the great result of those strikes? Merely that numbers of men have put their neck into an iron collar. I am only trying to show them who owns the collar .. . A little group of those who control both capital and labor will sit down in New York, and they will settle prices, and they will settle dividends, and they will settle wages .. . The Wagner Act is just one of these things that helps to fasten control upon the necks of labor. Labor doesn't see that yet. It thinks the Wagner Act helps it. All you have to do is to wait and see how it works. It fits perfectly the plans to get control of labor. I have never sought to prevent our men from joining any association-religious, racial, political or social . . . No one who believes in American freedom would do that. When our men ask about unions, I give them the same advice as when they ask about any of the other schemes that are always being aimed at men's wages. I say to them : "First, figure out for yourself what you are going to get out of it . If you go into a union, they have got you , but what have you got?" FORD MOTOR COMPANY 567 We think our men ought to consider whether it is necessary for them to pay some outsider every month for the privilege of working at Ford's. Or, whether any union can do more for them than we are doing. If union leaders think they can manage an automobile factory better than we can, and pay better wages under better working conditions than we can, why don't they build a factory of their own and show us up? They have the capital-they have all the money they need and a lot more. The country is big; they have the men; and think of all the union customers they would have! If the union leaders are sincere, they should go into business, themselves. If they have thought out a better way to manage business, let them demonstrate what it is. If they can't do•that, why do they pretend they can? Of course, the financial interests that use strikes as a way to build up unions, would not permit them to build new factories- big, progressive factories with everything in them that union leaders now demand. They don't want that. They want con- trol. 'I have always made a better bargain for our men than an outsider could. We have never had to bargain against our men, and we don't expect to begin now. There is no mystery about the connection between corporation control and labor control. They are simply the two ends of the same rope. To have one, you have got to have the other. You may say as emphatically as you like, that all this does not disturb me in the least. I know the scheme is wrong, and it will not work. The respondent denies that its distribution of this literature consti- tutes unfair labor practices within the meaning of the Act. The question presented is whether this literature, expressing as it did the policy of the respondent, was calculated under the circumstances to arouse in the employees' minds a fear that membership or activity in the Union would•result in discrimination against them by the respond- ent. In order to determine this question, we must consider not only the bare words of the literature, but also the accompanying events which provide the setting for the statements and reveal their full import. In this case, the distribution of the literature was accom- panied by warnings against union activity made by supervisors, by espionage within and without the plant, by the destruction of a banner announcing a union meeting, and, as we find below, by discharges based on union membership and activity. The record as a whole reveals a broad attack by the respondent on union organization. As part of this attack the respondent distributed the literature in ques- tion, upbraiding the Union as a "racket" which "looks and smells like Q 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD COMMUNISM," warning the workers that their dues provide "big cars, airplanes, swell offices, big salaries," and asserting that if they asked for an accounting of union funds they would be beaten. Atop the whole campaign stand the pronouncements of Henry Ford himself, urging the workers to shun unions. We find that, under these circum- stances, the statements contained in the documents were intended to, and did, have the effect of interfering with, restraining, and coercing the respondent's employees in the exercise of their rights to self- organization and collective bargaining.14 As to the foregoing literature, the respondent contends in sub- stance: (1) that in the circulation of the Almanac and pamphlet it was exercising the right of free speech guaranteed by the First Amendment to the Federal Constitution, and (2) that the legislative history of Section 8 (1) of the Act indicates that Congress purposely left employers free to influence their employees in the exercise of the rights guaranteed in Section 7 as long as employers did not interfere with, restrain, or coerce employees in the exercise of such right. We have considered these defenses and, in the light of the facts presented, find them to be without merit. The respondent's right to freedom of speech and of press does not sanction its use of speech or press as a means of employing its economic superiority to inter- fere with, restrain, or coerce its employees in the exercise of the rights guaranteed by the Act 15 By its distribution of the Almanac 14 We previously have fully considered the problem here presented . In Matter of Ford Motor Company and United Automobile Workers of America, Local No. 325, 23 N. L. R. B. 342, we said : Whether the words or actions of an employer constitute interference, restraint, or coercion, within the meaning of the Act, must be judged, not as an abstract proposition, but in the light of the economic realities of the employer-employee rela- tionship . It need hardly be stressed that the dominant position of an employer, who exercises the power of economic life and death over his employees, gives to an employer's statements, whether or not ostensibly couched as argument or advice, an immediate and compelling effect that they would not possess if addressed to economic equals. As the Circuit Court of Appeals for the Seventh Circuit has said , "The voice of authority may . . . provoke fear and awe quite as readily as it may bespeak fatherly advice. The position of the employer . . . carries such weight and influence that his words can be coercive when they would not be so if the relation of master and servant did not exist ." (Citing N. L R B v Falk Corp , 102 F. (2d) 383 (C C. A. 7), aff'd 308 U S 453) In the Virginian Railway case the Circuit Court of Appeals for the Fourth Circuit made the same observation : "It must be remembered in this connection , however, that any sort of influence exerted by an employer upon an employee , dependent upon his employment for means of livelihood, may very easily become undue, in that it will coerce the employee's will in favor of what the employer desires against his better judgment as to what is really in the best interest of himself and his fellow employees (Citing Virginian By Co v. (Citing Virginian Rif Co v. System Federation No 40, 84 F. ( 2d) 641 (C. C. A. System Federation No 40, 84 F (2d) 641 (C. C. A. 4), aff'd 300 U. S. 515)." The views which we expressed in the above-cited case, involving the respondent, are equally applicable in the instant case. 15 See N L. it. B. v. Falk Corporation, 102 F. ( 2d) 383 (C. C. A. 7), aff'd in 308 U. S. 453, N L. R. B. v. Colton, 105 F. (2d) 179 (C. C. A 6) ; N. L. R B v. Hopwood Re- tinning Co., 98 F. (2d ) 97 (C. C. A. 2) ; Virginia Ferry Cafp . v. N. L. R. B., 101 F. (2d) FORD MOTOR COMPANY 569 and pamphlet to the plant employees, the respondent was not ad- dressing or attempting to influence the public at large; nor was the respondent addressing an argument to the intellect of its employees which they were free to accept or reject without compulsion. The respondent was not attempting to engage in the "free trade in ideas . . . in the competition of the market." 16 On the contrary it was issuing a stern warning that it was bitterly opposed to the Union and that it would throw the weight of its economic power against the efforts of its employees to form or carry on such an organization. The respondent's right so to interfere with, restrain, and coerce its employees is not sanctioned by the First Amendment. As to the respondent's contention that the Act does not prohibit an employer from influencing his employees, it is clear, for the reasons already stated, that the respondent's actions here constitute not mere influence but interference, restraint, and coercion, expressly forbidden by the Act. B. The discharges and the refusal to recall certain employees upon the reopening of the plant after the shut-down in September 1937 The complaint, as amended, alleges that the respondent, discrimi- natorily discharged 18 employees and discriminatorily refused to recall 51 employees upon the reopening of its plant following a seasonal shut-down in September 1937. The respondent denies these allegations. 1. The discharges We have already noted the espionage activities of the respondent's servicemen and supervisory employees, the coercive statements of the respondent's supervisory employees, and the publication and dis- semination among the respondent's employees of anti-union litera- ture. The alleged discharges must be considered in the light of this background of anti-union practices. In addition, other important circumstances here present indicate the existence of a policy of dis- criminating against employees engaging in union activity. Thus it appears that of the approximately 21 employees who attended the first union meeting, which was subjected to surveillance, at least 18 103 (C. C. A. 4) ; N. L. R. B. v. Stachpole Carbon Co., 105 F. (2d) 167 (C. C. A. 3), cert. den. 60 Sup. Ct. 142; N. L. R B. v. Nebel Knitting Company, 103 F. (2d) 594 (C. C A. 4) ; Republic Steel Corporation v. N. L. if. B., 107 F. (2d) 472 (C C A. 3), cert. den. April 8, 1940; Montgomery Ward & Co., Inc. v. N. L. R B, 107 F (2d) 555, 558-9 (C. C. A. 7) ; N. L. R. B. v. Sunshine Mining Company, April 3, 1940 (C C. A 9). 16 See Holmes, J., dissenting in Abrams v. United States, 250 U. S 616, 624, 630 (1919). Compare the language of the Court in Thornhill v. Alabama (310 U. S. 88, decided April 22, 1940) ; "Abridgment of the liberty of such discussion can be justified only where the clear danger of substantive evils arises under circumstances affording no opportunity to test the merits of ideas by competition for acceptance in the market of public opinion." 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were subsequently eliminated from the respondent's employ.17 Like- wise, it is an important fact that substantially all of the leaders of the union were discharged. From May 1937, when union activity began, to August 9, 1937, the date of the last discriminatory discharges occurring prior to the general lay-off,18 the respondent laid off between 150 and 200 em- ployees. The respondent contends that as the alleged discriminatory discharges constitute a low percentage of the total lay-offs during this period, there is a failure to prove a policy of discriminating against members of the Union. Clearly this is a factor which should be considered in determining whether or not the respondent has discriminatorily discharged employees, and it is a circumstance which the Board has considered in all of the discharges discussed here- inafter. We do not feel, however, that this circumstance outweighs all of the other factors involved in the discharges. The large num- ber of lay-offs indicate that the ordinary labor turnover is large and that a large number of the lay-offs were proper. It does not follow that all of the lay-offs were proper. The respondent further maintains that the alleged discriminatory discharges were, in fact, lay-offs. On the employment cards of these employees, however, causes for the termination of employment were assigned. We conclude that the employees in question were dis- charged and not laid off. As already noted, the complaint alleged that 18 employees were discharged because of their union activities. One of these employees, Edward Sherman, did not testify at the hearing, and there was insufficient evidence to support the allegations as to him. Two others, Guy Testa and Frank Kornowicz, are more appropriately considered with the group which was not recalled upon the reopening of the plant following the September lay-off. The case of Frank Kandrat alleged in the complaint to have been refused recall by the respond- ent, is more appropriately considered here since he was laid off or discharged prior to the general lay-off in September 1937. There thus are 16 discharges now to be considered. We will take up seriatim the circumstances surrounding the discharge of each individual. Frank Snyder was employed by the respondent in 1929. He worked in the trim department. Until he joined the Union his work never 17 Harry Strash, who attended the union meeting at the Root Building, testified that on the following Monday, which was pay day, Maroone walked up and down the line of employees, picked out those who had attended the meeting, and wrote down their badge numbers. Thereafter he and others who had attended the union meeting were placed under strict surveillance by the servicemen 18 Bean and Lawler were discharged after August 9; however , the allegations that they -were discriminatorily discharged are not supported by the record , and the complaint as to them is hereinafter dismissed. FORD MOTOR COMPANY 571 had been criticized. On May 8, 1937, he attended the Root Building meeting, and was spoken to by Maroone as he left the building. He did not join the Union until May 28. He was discharged on July 8, 1937, his termination of service card reading : "This employee warned on several occasions as to poor workmanship, nevertheless employee continued to do careless work." Snyder testified and we find that no such warnings had been communicated to him. On July 8 John Ott, a subforeman, approached him at work and asked him what he had done. Snyder responded that he had done nothing. Ott said: "Well, Vincent told me to take you out." As he was being taken out, Snyder saw Norbert Vincent, a foreman, and asked him what was wrong. lie was told that his work was poor-nothing more specific. A few days previous to this, Snyder had met Joseph Malecki, a subforeman, outside the plant, and was told by Malecki that he (Snyder) was on the spot and should not talk about the Union at all or he would be fired. A serviceman had previously told Malecki that he would like to "get something" on Snyder. We have no doubt from the above facts, taken in connection with the whole record, that Snyder was discharged because of his union membership and activity, and we so find. Stanley S. Fielkowski was employed by the respondent in February 1934, and assigned to the cushion department. Subsequently he was made an instructor of new men, and for a period he was an inspector. In February 1937 he was returned to his ordinary duties. He joined the Union on May 6, 1937, and attended the meeting which was held at the Root Building on May 8. He saw Maroone, Maeder, and Sullivan in the vicinity. Although he felt ill, on Monday, May 10, he reported for work and got his pay at the regular time. He later informed his foreman that he felt ill and went to see the company doctor, who, after seeing that he received a pass from the first-aid man, sent him home. The next day he reported for work only to find his time card missing from the rack. The timekeeper told him to see Maroone. Maroone first conferred with Malone, and then referred Fielkowski to the latter. Malone told Fielkowski that he had broken it rule by leaving the plant on the previous day, and added, "We thought highly of you." Malone then told him he was through. When Fielkowski sought to discuss the matter further, Malone would have none of it, and instructed Maeder, a serviceman, to accompany Fielkowski while he turned in his tools and got his badge. Fiel- kowski returned with the badge and again sought to explain the matter further. The doctor happened by at that moment and was called over by Fielkowski. He confirmed Fielkowski's story and told Malone that Fielkowski had had a bad cold and inflammation of the 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stomach the day before and was in no condition to work. Malone then told Fielkowski : "Well, give me the badge and keep going, you are through." Although Malone testified, he did not offer his version of the above events. Maroone testified, and, although his testimony was generally confused as to the circumstances surrounding this dis- charge, he denied that Fielkowski told him about being ill. We credit Fielkowski's testimony rather than Maroone's on this point. Ed- ward Miller, superintendent of the plant, testified as to Fielkowski, "He was a mighty good worker." Miller claimed that sometime thereafter he talked to Dr. Brylski who attended Fielkowski, and that although Brylski did not deny it, he did not "seem to recall" treating Fielkowski. An analysis of all the testimony convinces us that Fielkowski's dis- charge was due to his affiliation with the Union rather than to the failure to report to his foreman before leaving the plant. He had attended the meeting at the Root Building where Maroone and the servicemen were present; he had reported to his foreman that he was feeling ill; Maroone had spoken with Malone just before Malone told Fielkowski he was through ; Malone, at least, knew that the doctor had found Fielkowski actually ill the day before. We find it difficult to believe that a man who had been a competent workman for over three years was discharged summarily under these circumstances merely for failing to report' back to the foreman after seeing the doctor and before leaving the plant. We find that Fielkowski was discharged because of his union membership and activities. Anthony Miskowiak worked in the trim department, doing up- holstery work. He had been with the company for about 4 years prior to his discharge, and had had previous experience in similar work with other firms. He had on occasion been assigned to work on cars destined for special display in show rooms. Miller conceded that he was a good workman, but averred that he had suddenly begun doing poor work just before his discharge. There had been no criti- cism of Miskowiak's work prior to his discharge on May 10, 1937. Yet his termination of service record states : "This employee neg- lected his operation. Foreman warned employee as to poor work- manship, however employee continued to produce poor work." The facts surrounding his discharge are as follows : About 7: 00 p. m. on May 10, Foreman Ostrom or Subforeman Ott came to the line on which Miskowiak was working and took off the other man who was doing the same operation as he. All that evening Sullivan, a service- man, kept a close watch on Miskowiak. Later in the evening Ott instructed him to see Ostrom concerning a defective job. Ostrom said: "Tony, this is your job and this is a rotten job, I am going to let you FORD MOTOR COMPANY 573 go." It appeared that a window cord had been either put in improp- erly or ripped out after proper installation. Miskowiak replied, "Well, I cannot stop you from doing that, but this job is not mine, and you know it." Sullivan was standing by, and Ostrom turned to him and said : "Take him out." The respondent did not call Ostrom, Ott, or Sullivan to testify. On May 5, after Miskowiak was through work, Ott had called him and several other men over near the tool crib where Ostrom had spoken to them, as noted above, saying that he understood they were talking about unions in the shop, and that he was warning them to "cut it out." Ott had supplemented Ostrom's remarks by saying : "I want you boys to cut this out about this God damned union or you will be God damned sorry; I am warning you." Miskowiak had attended the meeting at the Root Building on May 8. A review of all the evidence convinces us that Miskowiak was dis- charged because of his membership and activities in the Union. We are convinced that the defective job was not in fact Miskowiak's fault. There is ample reason to suppose that Ostrom, whose hostility to the Union is clearly shown in this as well as in other parts of the record, either fabricated, or procured the fabrication of, the charge that Miskowiak had been at fault. Even if we assume, however; that Miskowiak had erred, it seems incredible that this excellent workman of long standing should be abruptly discharged for one mistake under such circumstances. It is to be noted that the claim on his termination of service record that he had previously been warned by his foreman as to poor workmanship, is in no way borne out by the record, and is in fact negatived by Miskowiak's undenied testimony. We have no doubt, and we find, that Miskowiak was discriminated against as a result of his union activity.1° Martin Socenski was employed by the respondent in February 1934, and worked on the trim line. He joined the Union early in May and became its vice president. He was at the Root Building meeting on May 8. A few days thereafter one Hathaway, a subforeman, remarked to Socenski that he understood him to be "an organizer here," averring that "it is all over the shop." On June 30 Foreman Edgecomb accused him of doing a particular job defectively. Socenski established that the job referred to was done by the man working behind him. Edgecomb said, "Well, forget about it." Later in the day Edgecomb reappeared, made a similiar allegation , and again Socenski established that the 19 The respondent in Its brief raises the objection that the evidence does not clearly show that Miskowlak joined the Union before his discharge. It is immaterial whether or' n6t Miskowiak actually had joined the Union before his discharge . He had attended the Root ' Building meeting, and it is clear that even were his discharge merely the result of supposed union membership It would constitute an unfair labor practice under the facts of this case. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD job was not his. In each of these instances, Edgecomb's charge was that a screw had not been properly tightened. Later in the same day, Edgecomb sent a pusher to summon Socenski to another defective job. As Socenski arrived, Edgecomb stated, "Here is your job, you can't bluff me now." This time it was Socenski's job-a loose screw. Socenski asserted, "You are trying to fire me." Socenski testified that lie had been unusually careful in tightening the screws that day, and that he was convinced this one had been loosened by someone after he had finished. Edgecomb 20 then sent him to the employment office and he was discharged. Socenski testified that there had never been any criticism of his work prior to the day of his discharge. In fact, he had on occasion been assigned to special jobs requiring the best workmen. Socenski's termination of service record stated : "This employee warned on several occasions as to poor workmanship. Nevertheless employee continued to do poor work.1' The only testimony brought forward by the respondent on Socenski's case was that of Maroone and Miller. Maroone did not remember anything about the case except that the regular procedure was followed; Socenski was sent to him by the foreman and told his story; Maroone then saw the foreman and presented both stories to Superintendent Miller, who decided to discharge Socenski. Maroone did not recall what Socenski's story was. Miller conceded that Socenski was an exceptional workman and said he could not under- stand how he happened to produce a string of bad work all at once. This was not the only instance in which Edgecomb made persistent efforts to unearth some deficiency in a union man's work. It appears from the uncontradicted testimony of Weldon Farnish, another com- plainant, that some time in June Edgecomb stood and watched him for several minutes and then alleged that Farnish was not fitting the windshield wipers properly. A check with a gauge revealed that nothing was wrong. Edgecomb went away shaking his head, saying, "God damn, can't get nothing on him." We are convinced that Edge- comb deliberately set out to find some excuse to use as a basis for getting rid of Socenski. The motive is apparent from Socenski's prominent union activity. Although we find that Socenski actually was not responsible for the alleged defective work finally pointed to by Edgecomb; whether he was or not, it would still be clear, and we find, that his union membership and activity, and not the alleged single mistake made by him, was the cause of his discharge. 20 The record at this point gives the foreman's name as Ostrom, but it is clear from the surrounding testimony that this was an inadvertent error and that Edgecomb was the foreman involved. FORD MOTOR COMPANY 575 Joseph E. Nowicki worked in the chassis department. He was employed by the respondent in 1930. Later he served a 3-year period in the army. After this absence, he returned to the respondent's employ. He worked at several different jobs in the plant from time to time, and there is no evidence of any complaint concerning his work. In fact, on one occasion when it was proposed that he be transferred to a job as factory serviceman, his foreman protested against losing so valuable a man and the transfer was not made. Nowicki joined the Union about June 6, 1937, and became active in enrolling other members. On the afternoon of July 7, as he was leaving the plant, a man whom he had never seen before stepped up to him and slugged him over the left eye. Nowicki noticed two servicemen standing within a few feet of him at the time. He re- turned to the plant and had the first-aid man repair the cut over his eye. Maroone was in the room at the time and Nowicki told him what had happened. Maroone asked him if he knew the man who had attacked him; Nowicki said he did not. The next day Nowicki's time card was out of the rack when he arrived for work, and he was directed to Malone. He explained the occurrence to Malone, who said, "Those things can't go on any further." Malone went on to ask him if he belonged to any organization. Nowicki said he did not. Finally, Malone told him he could not resume work until he identified his assailant and brought him in. Nowicki was thereupon discharged. Three months later Nowicki recognized his assailant on the street in Buffalo and Nowicki's father managed to find out his name. He was Steve Pietrowski, a professional wrestler. The respondent has a rule that employees fighting on company property are discharged. Miller testified concerning the application of the rule in Nowicki's case as follows: "We had in mind Nowicki may have had some personal grievances with men in the plant and sooner or later it may pop out in the plant, and we would be responsi- ble as far as compensation is concerned. You know, under the Com- pensation Law, if you have any fight or get injured in the property, we have to pay you compensation, until such a time we could prove, Nowicki could prove there was nobody in the plant he had personal grievances with, we let him go." He went on to testify that the management had tried without success to discover who was responsi- ble for the incident. Maroone also testified on the point and said that Nowicki told him "that he was fighting out on the company prop- erty." As to this, we believe Nowicki's testimony that he told Maroone the full circumstances. It is inconceivable that a man fresh from an unprovoked attack under such circumstances would merely report to Maroone that he was "fighting." Maroone inscribed on the 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD termination of service record : "This employee caused disturbance with other employees in parking lot." He was unable to testify as to how he reached such a conclusion, and he did nothing to find out who the "other employees" were in any event. The first-aid report, which Nowicki signed at the time he was given treatment, reads: "Injured in a fight outside of company property and after working hours." We do not think that signing a routine report under circum- stances which were not conducive to calm reflection shows any admis- sion of guilt such as might be implied from the description of the occurrence in the report as a "fight." We find that Nowicki was the victim of an unprovoked attack and that that fact was known to the respondent. In its brief the respondent describes the assault as "a complete mystery," and urges that no finding of an anti-union motive for the discharge can properly be found. There is no doubt that the above facts leave a great deal to be explained, but we are of the opinion that other evidence in the record throws sufficient light on the matter to warrant a finding as to what actually happened. As noted above, Nowicki finally identified his assailant as one Steve Pietrowski, a professional wrestler. Pietrowski was subpoenaed by the Board and testified in the case. A reluctant witness at best, he nevertheless provided some information which we deem credible. He testified that he was acquainted with Bruno Luczac and Casey Moran, who were also professional wrestlers. He added that he also knew Frank Crystal, likewise a wrestler. During the period when he was alleged to have assaulted Nowicki, he claimed to have been employed at a freight house directly across the street from the Ford plant. At that time he used to go riding occasionally in the evening with Moran and Luczac. As to the Nowicki incident, he denied ever having seen Nowicki, much less having struck him. As between Nowicki's straightforward story and this testimony, we have no hesitation in accepting Nowicki's version. As a matter of fact, im- mediately after Pietrowski testified, Nowicki was recalled to the stand and positively identified Pietrowski, then in the room, as the man who had hit him. Further light is thrown on the incident by the testimony of Bernard Czarnecki who testified that he lived in the neighborhood in which Pietrowski lived and that he had known Pietrowski for about 2 years. He testified that before he came into the hearing room to testify, he met Pietrowski on the street; that Pietrowski told him that he had been subpoenaed to testify and that he was "mad" about it; that he had hit somebody ; and that he had seen someone from Detroit at a local hotel relative to the matter on which he was to testify. He told Czarnecki that "if this thing will go through" he was to get FORD MOTOR COMPANY 577 paid. Czarnecki asked Pietrowski whether or not it was Malone who intended to pay him, and Pietrowski replied that it was not Malone and that he would not reveal the person's name. Pietrowski admitted that he stood and talked with Czarnecki for 3 to 5 minutes but contended that he said nothing more than "hello" or "good morning" to him. It appears at another point in the record that one Moore, an official of the Ford Company, was present at this time in Buffalo in regard to the present proceeding, and further that Moore was staying at the hotel to which Pietrowski referred, the Statler. Yule., the factory manager, denied that in his conferences with Moore at the Statler, he had seen Pietrowski. We conclude that Pietrowski did consult with someone from Detroit at the Statler Hotel relative to his testimony in the case. The circumstances irresistibly lead to the conclusion, and we find, that Luczak, Moran, and Crystal, who were intimate associates of Pietrowski, arranged to have Pietrowski assault Nowicki to provide a pretext for the latter's discharge. No other explanation of the bizarre course of events seems plausible to us. Here was a man with a long record of excellent service, who walked out of the plant one day and was slugged by a professional wrestler, until then un- known to him, and without any provocation. He was then forth- with discharged, allegedly for "fighting," despite his explanation of the true circumstances to his superiors. As a condition of reinstate- ment the respondent required that he "prove there was nobody in the plant he had personal grievances with"-an amazing burden of proof to put on a man under any circumstances, much less those shown here. It is significant that he had joined the Union a short while before, and had been active in soliciting new members. Furthermore, during the same period of time in which he was discharged, other union members were being discriminated against and harassed in the plant. Upon the entire record, we are convinced that Nowicki was the victim of discrimination by the respondent because of his membership and activity in the Union, and we so find. Joseph Kaiser worked on the trim line. He had been with the re- spondent since 1929 or 1930, and there had never been complaints con- cerning his work. On May 8, 1937, he joined the Union. Just before the union meeting on that day, John Ott, the subforeman whose ac- tivities against the Union are shown to be widespread, asked him when the meeting was going to be held. Kaiser replied, "Sometime this week." Kaiser's job was to put on the regulator and hinges for the wind- shield. He worked on the night shift commencing at 3: 30 p. m. On May 12, 1937, when he came in to work, the man whom he was relieving told him that there were two jobs' on the line on which 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .he, had not .tightened up the, bolts on the regulators. Kaiser advised him to finish the job, and the other man said he would go back and tighten them up. Kaiser assumed that he did so, and did not check up. About two hours later, the approximate time required for a car to get from that part of the line to the finish line, Ostrom, the general foreman, called Kaiser to the finish line and showed him two regulators with loose bolts. Kaiser explained to Ostrom that those were undoubtedly the jobs the other man had let through. Ostrom said, "All right, let it go; see that it doesn't happen again." At about 10: 30 Ostrom sent for him again and accused him of letting other cars go through with loose bolts. Kaiser insisted he did not let jobs like that go'through, but tightened the bolts Ostrom pointed out to him, and then at Ostrom's orders checked, every car back to' his point on the line. All the bolts were tight. A half hour later Ostrom called him over again and averred he had found another ,loose one. Kaiser tightened it, and together he and Ostrom checked back again and found no other loose bolts. Presently Ostrom ap- peared with Sullivan, a serviceman, and directed him to take Kaiser out. Kaiser was escorted to the employment office and let out. His termination of service record reads : "Although warned by foreman on several occasions re-neglecting workmanship on his operation, this employee continued to do poor work." Miller, the superintendent, testified as follows concerning Kaiser's case : "Kayser (sic) knew how to put them in and knew how to do a good job. That is the sad part of it. He was a capable man to do a good job. He has always been a good worker. Well, 'at' a time when we were' laying off men ' Kaiser would either con- ciously or unconsciously let screws come loose or do inferior work at that particular time. I don't know. I can't explain it as to why a man worked good for years and is a good dependable worker, and he was a good worker, and still is." Neither Ott nor Ostrom was called to contradict Kaiser's testimony. It appears from his testimony that the respondent's supervisory em- ployees knew of his union activities, and that there was a systematic attempt on the day of his discharge to detect deficiencies in Kaiser's work. We are convinced, moreover, and find, that, the'klleged de- ficiencies in his work were fabricated by Ostrom, save for the defects which were traceable to the employee on the earlier shift. It is significant that the respondent did not attempt to establish any prior instances of defective work, which according to the termination of service record were the reason for discharging Kaiser. We find that the respondent discharged Kaiser because of his membership and activities in the Union. FORD MOTOR COMPANY 579 Andreiv-Sredainski was in the respondent's employ during 1930 and again from 1933 down to the date of his discharge. He distributed materials to the trim line. In 1932 and 1933, when production at the respondent's plant was slack, he was not among those retained for work. He joined the Union on May 8 and attended the meeting that day at the Root Building. He testified that thereafter he was watched at work by Edgecomb, Maeder, and Maroone. On Tuesday, May 11, his pusher, Mike Bekovitch, said to him : "You had better watch your step. You are going out. They got you spotted." Sredzinski asked why, and Bekovitch asked him if he had joined the Union. Sred- zinski said that he had. Bekovitch said, "That is the thing. You are going to get it, so be careful and send the material on the line with- out any mistakes." Later in the day Maeder summoned Sredzinski to see Edgecomb and, in Edgecomb's presence, accused him of spitting tobacco on the floor, talking to the men, and walking around the factory. Sredzinski called Maeder a "God damned liar," and Maeder, a considerably larger man, dealt him several heavy blows in the face. Edgecomb then intervened and instructed Maeder to take Sredzinski to the employment office. There Malone laid him off, according to Sredzinski's testimony. Sredzinski's testimony was corroborated by John Clark, an em- ployee. Clark testified as follows: "I heard Andy (Sredzinski) holler out `That is a damn lie' or `You are a damn liar', and this factory serviceman hauled off and hit Andy about four or five times in the jaw. He swung his arms, his left and his right, and knocked him into me." Alphonse Ruckie in further corroboration of Sredzinski's testimony testified that, "Andy (Sredzinski) said some- thing and this factory serviceman must have hit him three or four times and knocked him down...." As stated above, Sredzinski testified that Malone discharged him. There is some confusion on this point in the record, as Maroone testi- fied that Sredzinski reported to him at the employment office, and that he (Maroone) reported both Sredzinski's story and that of the foreman to Miller, ' who decided on the lay-off. Maroone did not recall what Sredzinski's story was, but the foreman's story, which he noted on the termination of service card, was : "This employee con- tinuously leaving his department without knowledge of his foreman." The circumstances surrounding the incident are highly suspicious. Since Sredzinski did not chew tobacco at all, and no mention of this alleged shortcoming is made on his termination of service card, Maeder's charge that he was spitting tobacco on the floor is obviously untrue. Sredzinski testified that his work required him to be up and down the line in his capacity as stockman supplying the line 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with materials. It seems highly doubtful that, following Bekovitch's warning that he was in danger of discharge for joining the Union, Sredzinski would have embarked on a campaign of loafing and gen- eral inattention to his duties. Thus, we credit his testimony that he was particularly careful to do his work thoroughly that day, heeding Bekovitch's admonition. The respondent did not produce Maeder or Bekovitch as witnesses. However we might resolve the responsibility for the encounter between Maeder and Sredzinski, we feel that this encounter did not occasion Sredzinski's discharge, nor does the respondent assign it as a reason for such discharge. More- over, contrary to the respondent's alleged policy of discharging em- ployees engaging in fights at or near the plant, the respondent did. not discharge Maeder. We are convinced from all the facts that Maeder and Edgecomb had known of Sredzinski's activity in the Union, and that such was the real reason for his discharge. Walter Sredzinski was first employed by the respondent for a few months during 1930. In December 1936 the respondent employed him as operator of a table which transferred cars from one line to another. During April or May 1937 he was transferred from one job to another in rapid succession. He was finally assigned to spraying bolts on the chassis line. Sredzinski testified that he sprayed one side of the chassis, while another employee sprayed the other side. He stated that his fore- man, Kennedy, told him to touch up the bolts and nuts which had not been sprayed when the chassis reached him. On June 8, the second day after he had been assigned to this work, the chief in- spector, Rayfield, complained to him that he was not spraying the bolts in the front of the chassis. Sredzinski averred that he had sprayed the parts in question. That same afternoon Rayfield came around again and complained that Sredzinski was neglecting the bolts underneath the chassis. Sredzinski told him that he had never seen anyone spray them. Sredzinski carefully followed these suc- cessive instructions. Later that same day Kennedy told Sredzinski that he wanted to see him. Sredzinski remarked, "Well, I believe I am going to get my pay now for union activities." Kennedy replied, "I am not supposed to know anything about that." After a short interval, he added, "I think I will have to let you go because you did not spray those nuts underneath those springs." Sredzinski was thereupon discharged, his termination of service record stating that he had done careless work despite several warnings. Neither Rayfield nor Kennedy was called to testify. Miller testi- fied that Sredzinski was transferred to several jobs because he was unable to do the jobs to which he was assigned, and that they finally put him on the spraying job because it was a simple operation FORD MOTOR COMPANY 581 Sredzinski claims that the jobs to which he was transferred were difficult. Sredzinski was a key figure in the Union. As we have noted previously, he was the one who first started organizational efforts among the respondent's employees. He was an active organizer for the Union, and was elected temporary financial secretary. He at- tended both the May 8 and May 15 meetings, at which the above- described espionage was practiced. Subsequently, while at work in the plant, he saw Maroone and Edgecomb talking excitedly and pointing at him. Sredzinski testified that a pusher named Larry asked him if he had attended any union meetings recently and that he replied that he had attended some and that they were "packing the hall." Sredzinski further testified that servicemen watched him even while he was eating lunch, and that on one occasion there was a serviceman eating lunch on either side of him. In a number of cases considered herein, e. g., Lawler, Kaiser, Miskowiak, Bean, Salley, and Socenski, we found incidents where employees with good service records were allegedly found, after their union activities became apparent, to be doing defective work. We feel that there was a systematic endeavor in Sredzinski's case to detect some deficiency in his work upon which the respondent might base a•discharge. Sredzinski was an important figure in the Union. The ground for discharge in this case appears to have been trifling. The Trial Examiner found that Sredzinski was discharged because of his membership in and activities in behalf of the Union. We agree with the Trial Examiner's finding. Patrick Curtin was employed by the respondent in 1929 and was continuously employed until June 23, 1937, when he was discharged. Curtin joined the Union on May 23, 1937, and attended the meetings of the Union thereafter. On May 30, 1937, he was elected to the office of recording secretary of the Union. Curtin testified that he was under the surveillance of factory servicemen constantly there- after. Curtin worked in the body department. Soldering was among his operations. Curtin testified that during June 1937 his pusher, Frank, told him that he had orders to see that every man on the line wore a respirator and that after finishing the job which he was then doing, he, Curtin, should get one and wear it. Curtin stated that after finishing that job he started for the tool crib where the respirators were kept, but he was stopped by the pusher (Frank) who inquired where be was going. When Curtin said he was going to the tool crib for a respirator the pusher "got all excited and told me that I couldn't go down there, that he would have to shut the line down if I went down there, that I would have to do this job and that job 283034-41-vol. 23-38 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD befoi.etcould get it. I got: that job-done that h&assigndd -me to, and when I got that done he took me to a job on the floor. There was a job on the floor that he wanted to put on the line . When I was working at it the factory serviceman came and handed me a leaving factory slip." Curtin testified that two days later he returned to the plant for his pay and while there saw Miller, whom he asked why he had been discharged . Curtin stated that Miller, having no knowledge of the reason for his discharge , offered to see Curtin's foreman and to ascertain the reason for the discharge. After contacting the fore- man Miller told Curtin that while he could overlook the respirator incident, he understood that Curtin had used profane language to his-foren an . ;Miller. said that he was ,,unable to overlook - the Matter offense. This was the first Curtin had heard of any alleged , profanity on his part . Miller admitted that he had a conversation with Curtin after Curtin's discharge, but did not testify concerning the substance of the conversation. We find that Miller made the statements at- tributed to him. Curtin's termination of service card states : "Em- ployee warned on several occasions as to his poor workmanship. Nevertheless employee continued to do poor work." The testimony of the respondent's witnesses fails to explain the reason for Curtin's discharge . The foreman was not called to testify concerning the "poor workmanship" referred to in the termi- nation of service card . Curtin had been in the respondent's em- ploy since 1929, and there is no evidence that his work was not satis- factory. The action of the , pusher in- - giving Curtin conflicting orders indicated that the respondent was attempting to secure a pre- text for discharging Curtin. The haste with which the leaving factory slip was issued supports this view . This incident was not a reasonable ground for discharge, and Miller , appreciating this, as- signed as the reason for his refusal to return Curtin to his job that Curtin had used profane language in speaking to his foreman. The foreman was not called to testify concerning the alleged profanity. We do not feel that either of the reasons alleged as grounds for the discharge was in fact the true reason. Curtin was an official of the Union. In view of the espionage of the respondent's servicemen we find that this was known to the respondent. Curtin had been under surveillance even when going to the toilet . We find that Curtin was discharged because of his membership and activities in the Union. Vincent Lipira was first employed by the respondent in March 1933. Except for periods when the plant was closed because of a lack of materials or because of a change in models, he was continuously employed until June 28, 1937, when he was discharged . Lipira testi- fied that his work during this time had never been criticized; the respondent offered no testimony to rebut this statement. FORD . MOTOR: COMPANY 583 "',Either: late in May or 'early in, June . of 1937•' Lipira j oiiied- the Union. Shortly thereafter he noticed that the servicemen were keep- ing him under surveillance. On the Thursday preceding June 28 a serviceman approached him while lie was working and engaged him in a conversation concerning a strike then in progress at Detroit. According to Lipira, the serviceman asked him his opinion on the strike and he did not profess any sympathy for it; the serviceman then said, "Well, I don't know what they would gain . . . If they don't watch themselves they are going to get into serious trouble. They won't have any work." Lipira replied, "It is true. I think every man should do his job as long as he has got a job." While the service- man was not identified, in view of the activities of the servicemen, which we have previously discussed, we find that Lipira di&have a conversation substantially as is related above, with a serviceman. On the following day, according to Lipira's testimony, Frank Smith, a foreman, called him over and said, "Now, you watch your step." Lipira asked, "Well, what is the matter?" and Smith walked away saying, "Never mind." After lunch Smith returned and Lipira asked him whether or not his work was satisfactory. According to Lipira, Smith answered, "Well, your work is all right, but be careful as to what you say." Smith was not called to the stand. Although Smith's statement does not literally warn Lipira to "be careful as to what you say about unions," we feel, in the absence of any explanation of the meaning of the statement "be careful as to what you say," and in view of the anti-union campaign which the respondent directed through its servicemen and supervisory employees,',that',such was the intended warning. On June 28 Lipira was not feeling well. He arrived for work about two hours late and discovered that his time card had been taken from the rack. Lipira testified that he asked Malone where his card was; that Malone suggested that he see the timekeeper about it; that the timekeeper had it and advised him to take it in to Malone, who wanted to see him ; that Malone, after looking through some notes said, "Well, I am sorry. We had to lay off some meri and we didn't know who to lay off and we thought we would lay off the men that were late ... ' Well, we will yet you (know) when' to come back." Malone denied that he possessed authority to employ or discharge men and testified that he had never talked with any of the Board's witnesses concerning their discharge and the possibility of calling them back. We find that Malone made the statement attributed to him above. The respondent contends that Lipira's coming to work two hours late was a ,reasonable ground for discharge. We do not find it neces- sary to decide this issue, since we do not believe that Lipira's tardiness on this single occasion provided the real reason for his discharge. In 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD view of the respondent's surveillance of Lipira, the conversation which Lipira had with the serviceman, the foreman's warning to Lipira, Lipira's discharge for arriving at work two hours late although he had a long service record during which his work was not criticized, and the respondent's general attitude toward the Union during this period, we find that Lipira was discharged because of his membership in and activities in behalf of the Union. 21 Alfred Kupkowski began work for, the respondent in 1932 and worked steadily, except during lay-offs for changes of models, until his discharge in June 1937. There were no complaints about his work. The reason given on his termination of service record for his discharge is: "This employee having considerable trouble with fellow workmen." Kupkowski joined the Union on May 8, 1937, and attended the meeting which was held at the Root Building on that day. Maroons spoke to him as he was standing outside the building. On Monday, May 10, Maroone and Edgecomb came over and spoke to Kup= kowski's pusher, Mike. Afterwards, Mike told Kupkowski, "You had better watch your job, they will be laying for you, they have got you spotted for that meeting you attended last Saturday." Kup- kowski also attended the meeting- on May 15 at Marr's Hall, and noted Maroone and Sullivan riding up and down in front of the hall. On the Tuesday immediately preceding Memorial Day one of the pushers told Kupkowski that one Joe Fino had not come in to work. Kupkowski said he had just seen Fino come into the parking lot outside, and observed that he would no doubt be a few minutes late. Later that day one of Fino's friends berated Kupkowski for telling the pusher that Fino was outside. Two days later, as Kupkowski was leaving work, Fino and one Jerry Fascilino pounced on Kup- kowski as he was,leaving the plant and gave him a severe beating. Kupkowski returned to the plant, had his eye treated, and told 21 On the front of the termination of service card Lipira's discharge is dated as of June 28. On the back of the card there is a reference to a two weeks' absence from the plant as the ground for the discharge . Maroone testified that Lipira was discharged because he had been absent from the plant without permission for five days, such absence being a ground for discharge under the respondent' s plant rules . The Trial Examiner interpreted the conflict in the two statements on the termination of service card to mean that the respondent was contending that Lipira had been absent from the plant for two weeks prior to June 28, a contention which it had not proved by its employment records. In its brief the respondent states that "no one has ever disputed" that Lipira worked until June 28, and suggests that the statement on the card that Lipira was a "five day quit" is probably a mistake on the part of the employment office. While the Trial Examiner's interpretation is rational, we shall not adopt it since the respondent does not now contend that Lipira was discharged because of absence from the plant for over five days. The fact that "tardiness" is not designated the reason for discharge on the termination of service card, however, is significant as to the respondent 's good faith in assigning tardiness as the reason for the discharge. FORD MOTOR COMPANY 585 Maeder what had happened. Maeder said the other two men would be fired. Kupkowski returned to work after Memorial Day, but he was stopped by Maeder who told him to see Malone before he began working. He then saw Malone who informed him that "We can't have nothing like this going on around here ... I have got to get rid of three of you men." Kupkowski was accordingly discharged. Maroone testified that Malone reported Kupkowski's case to him, but that he did not mention Fino or Fascilino in the report. He said lie did not know that Fino and Fascilino were involved in the incident; that no slips stating that Fino and Fascilino were involved in the incident were received by his office. Maroone wrote Malone's conclusion concerning the incident on the termination of service cards, but as Malone did not report who the "other workmen" with whom Kupkowski was having "considerable trouble" were, he did not inves- tigate the conduct of the other workmen. At the time Maroone tes- tified, February 3, 1938, he was not certain whether or not Fino and Fascilino were in the respondent's employ. It is clearly established that the respondent has a rule against fighting in the plant. However, the application of this rule to a union member and the failure to investigate the other workmen involved who, it appears, were not members of the Union, indicates a. discriminatory application of the rule. It is to be noted that Kupkowski attended both of the union meetings at which it has been established that espionage took place. He had been warned by his pusher that "They have got you spotted for that meeting you attended ..." We find that Kupkowski was discharged because of his union membership and activities. Frank Kandrat joined the Union on July 2 and attended its meet- ings thereafter. He was employed by the respondent in 1935 and worked on the trim line. There is no evidence that his work was unsatisfactory, and during 1937 he received two raises. His termi- nation of service record, dated August 9, 1937, states that Kandrat resigned. This is explained by a notation reading : "This employee made no report of his absence after shut-down. Five day quit." Kandrat testified that he was laid off on July 15 22 and was told to report again for work on August 9. He stated that he returned on August 9, as directed, and that Maroone refused to take him back. While Maroone was called to testify, no testimony relating to this refusal was elicited from him. According to Kandrat, he was told by Joe Gall, an inspector, that he (Gall) had talked to Miller about taking him back and that Miller did not want to take him on because the office had something against him. Gall did not testify. Miller 22 The last two weeks in July are a vacation period, during which the plant is closed. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified, but no testimony concerning Kandrat was elicited from him. We find that Kandrat reported for work on August 9, and that he was refused employment. The reason for the discharge is clearly not that stated on the termi- nation of service card, Kandrat's testimony that he was told to return on August 9 being uncontradicted. We find that Kandrat was dis- charged because of his union membership and activity. Stephen S. Salley was first employed by the respondent in 1930, He joined the Union on May 18, 1937, and was discharged the follow- ing July 9. Salley and his foreman, Fredo, had ridden to work in the same car for a time, during which Salley freely expressed his views on the Union. Salley first served as an inspector in the body shop. His work there was criticized on only one occasion. On June 28, 1937, Salley was transferred to the commercial shop. Salley was criticized for his work in the commercial department on the second day after he started there. Foreman Vincent complained that certain scratches on the body of a car had not been sufficiently covered by the buffing operation, and warned him to be on his toes or he would not have a job there. On July 9 Salley saw Vincent and Lee Halden, Salley's foreman, engaging in a spirited conversation at the end of the line on which he was working: He went down to where they were, and as he got there Vincent said to Halden, "Get this man out, fire him, he is no good. These are all his jobs from there on down the line, get him out of here." Salley testified that they did not show him the specific jobs, although it appears to us that Vincent had fairly well identified the cars in question. Salley further testified that the reason he went down to the end of the line when he saw them talking was that "I wanted to see what was wrong . . . I thought possibly I let something slip." Miller testified that Salley "could have done a good job if he wanted to." Salley's termination of service record shows : "This employee's work not satisfactory as an inspector." While there is some evidence that Salley was transferred to his new position, where he was likely to err, in order to get a pretext, such as defective work, for discharging him, we do not feel that the record clearly establishes that the transfer was made for such a purpose. It appears that Salley's inspection did fail to detect some defects. We find that Salley was discharged for reasons other than membership in and activities in behalf of the Union. Lawrence Lawler worked in the cushion department. He originally began work for the respondent in 1923 or 1924, but left and returned several times. His last period of employment began in December 1936. He joined the Union on May 6, 1937. On May 8 he went to the FORD MOTOR COMPANY 587 vicinity of the Root Building for the purpose of attending the meet- ing, but upon seeing Maroone and Sullivan standing outside the build- ing, decided not to go in. On May 15 he attended the union meeting at Broadway and Ash. As he went in he saw Andy Marlenki, who worked in the paint shop, sitting in a parked car across the street. About 2 weeks later Eddie Klump, assistant to the head of the service department, and Marlenki came into the cushion department together and looked around. After Marlenki left, Klump and Maue, the foreman of the department, went up and down the tables and looked at the badge numbers of about four of the men, including Lawler and Strash, who had also attended the meeting on May 15. In August Maue began to make frequent complaints to Lawler con- cerning his work; Lawler testified that sometimes the matters com- plained of were trivial, sometimes not actually relating to his work. Maue made a practice of sending one Haft, another employee, ^ to summon Lawler on these occasions, and Haft warned Lawler to keep his mouth shut because Maue was after him. On September 1, while Lawler was waiting for some stock to arrive, Maue came up and admonished him to get to work. Upon Lawler's protesting that he had no stock, Maue said lie would put him on the assembly line. Lawler said: "Maybe you will." Maue retorted : "By God, I will put you on the line," and called in Ostrom, who told Lawler to get his tools and come along. As they were walking toward the line, Lawler made some protest about working on the line, and Ostrom then told him he was fired. Ostrom wrote out some sort of a slip, and called a factory serviceman, who escorted Lawler to the employment office. Lawler reported the ' incident to Maroone, who merely said "0. K." Lawler's termination of service card reads : "This employee resigned rather than work on an operation assigned to him by cushion foreman." Miller testified that Lawler had quit, apparently interpreting his unwillingness to work on the line as a resignation. We find that Lawler did not quit, but was discharged. In the absence of any evidence that the work on the assembly line was inferior to the work in the cushion department, either in the nature of the work or in the wages paid for the respective jobs, we do not find that the attempted transfer of Lawler was discriminatory. It is admitted that Lawler protested the transfer and this appears to have been the reason for his discharge. We find that Lawler was discharged for reasons other than union membership and activity. Cameron Bean was employed by the respondent in 1939. He oper- ated the hoist which changes motors from one motor line to another. Early in June 1937 Bean joined the Union. In July 1937 he had quit the respondent's employ because a requested raise was not forth= coming. A few days later he was promised a raise, and he returned to work. Later the promised raise was granted. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On August 11, 1937, Bean's employment was terminated. He testified that he was discharged, but the termination of service record reads as follows : "This employee transferring motors from storage conveyor to line, did not follow set schedule as to order motors were to be placed on line, resulting in general foreman, Mr. Vincent, call- ing his attention to same. Bean stated that he would `quit' before he would take any `crap' from Mr. Vincent." Bean's version of the incident on August 11 is as follows : Vincent came up to him and accused Bean of calling him certain names in conversations with other men of the plant. Vincent also mentioned a mix-up of the motors in the line. Such a mix-up might or might not have been Bean's fault. There ensued a heated argument concerning Bean's alleged derogatory remarks about Vincent, and Vincent finally told Bean to get out, and saw to it that he got his check at the employment office and left. Although Vincent did not testify, we do not think that the evidence warrants the conclusion that Bean was discharged because of union membership or activity. While he had joined the Union about two months before, there is no showing that he attended any of the meet- ings which were spied upon. As to the incident of August 11, we think it unnecessary to decide whether Bean resigned or was dis- charged. There may be some doubt, from Bean's testimony, as to whether he was treated fairly by Vincent, but we are not convinced that his union membership or activity was the cause of his unfair treatment, if any. Joseph Malecki was employed by the respondent in June 1929. In 1930 he became a subforeman in the body shop. He was not a mem- ber of the Union. He worked in the plant during the shut-down for change'of models in the fall of 1937. On October 28, 1937, he found his time card missing from the rack as he was about to punch out. He testified that he then saw Malone, and that Malone accused him of being "in there in the gin mill up there on Genesee and Wilson, and riding in the car and hollering and all that." He testified that Malone also told him, "Your Polack friends . . . I told you before, they give it to you." Malecki went on to indicate that the Union held their meetings at the "gin mill" in question. He said that he denied the charges made by Malone, but that Malone, after "going up around the bush on that," finally took his badge and handed him his check. Malone denied having had any such conversation with Malecki. Malecki testified further that he succeeded in getting an- other interview with Malone on December 13, 1937, when he sought a satisfactory answer as to his dismissal. He stated that on this occa- sion Malone accused him of "showing partiality," apparently in regard to a pool which had been running in the plant. Malecki con- ceded that he had participated in a "sort of poker" the men played FORD MOTOR COMPANY 589 with their pay checks, with the winner getting $5, but he said that he had stopped this practice after having received a warning from Malone. He also testified that he believed one fellow had complained to the office that Malecki was favoring those playing in this pool as against those who did not. He denied the charges to Malone on December 13, but Malone asked him, "Why don't you just admit it?" He was unable to secure reinstatement, and left. Malecki's termination of service card reads : "This employee has been running a pool and selling tickets to men in his charge. Nu- merous warnings given him and charges made by numerous letters in file. See employment record." The letters referred to were appar- ently anonymous, and were not produced at the hearing; the Trial Examiner had indicated that he did not want to hear testimony based on anonymous letters. Malecki had refused to cooperate when other supervisors indicated that they would like to get rid of members of the Union. While this evidence is relevant, not only to Malecki's case, but to the cases of individuals toward whom the other supervisors had so shown an intention to discriminate, we are not satisfied that the evidence war- rants the finding that Malecki was discharged because of a real or supposed sympathy toward the Union. 2. Employees not recalled following the resumption of operations after the plant shut-down in September 1937 In mid-September of 1937, there occurred the customary lay-off during the shut-down of the plant for the annual change in models. Of the 1664 men working at the plant prior to the shut-down, about 1403 were laid off at this time, only a skeleton crew being retained to man the plant during the change in machinery. Production was re- sumed beginning about the middle of October, and by December 10, 1937, about 1050 of those laid off had been recalled to work. Pro- duction was at a lower level than in previous years, due to business conditions, and this was the peak figure from October until the time of the hearing. Thus, about 353 men were not called back to work. Some 52 23 individuals are named in the complaint and amended com- plaint as having been discriminated against by being so laid off in September and subsequently not recalled. There is, however, no basis in the record for any finding that they were discriminated against by being laid off, since it was a general shut-down for the legitimate purpose of changing models. The issue here is whether there was discrimination in the selection of those recalled for work. Y' The complaint alleged that 51 employees were discriminatorily refused reinstatement. The case of one of these, Kandrat, was considered above as a discharge. Two others, Testa and Kornowicz , who, the complaint alleged, were discriminatorily discharged, are included here, making a total of 52. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On this issue, the Trial Examiner found that 33 of such complainants had been discriminated against in that they were excluded from the group recalled because of their membership and activity in the Union. Superintendent Miller testified as follows, on direct examination by counsel for the respondent, as to the procedure in selecting the men to call back to work : Q. When you are about to get into production, how do you call the men back to work? A. I have a list of all available men in the superintendent's office, and I consult with the foremen. Q. Do you go over that list with the foremen? A. I do. Q. After the list is made up what do you do? A. I authorize it and send it down to the employment clerk. Q. What instructions has he after he gets the list? A. To contact these men and employ them in the department specified on the list. * * * * * * Q. In making up this list of men how do you go about it after talking with the various foremen? A. We consider the man's ability to do more than one opera- tion in starting a job, and at the same time we consider the length of service he has been in the company. Q. Is the matter of ability to begin operations quickly and efficiently something that is considered? A. In starting up an operation it is very important that you .,have men on the job who can do more than one operation in order to get production started, and bring the other men back as fast as possible. Miller went on to explain that often recommendations of foremen must be disregarded to some extent. Thus, prior to the shut-down in September 1937, the plant was operating on a two-shift basis, with fore- men and subforemen on both shifts, whereas following the shut-down only one shift was employed. In submitting recommendations for men to be taken back, foremen would try to have their own men called back, and if all of those recommended, were not needed, Miller would have to choose such as were needed from among them. The criteria used by the respondent in selecting men for recall thus appear to be twofold : versatility (at least in the case of men called back during the early stages of resuming production) and length of service. Other considerations which may have been important were ability to learn new operations quickly, ability to reach maximum efficiency in a short time, and, in isolated cases, special appeals on the basis of family need. There is no information in the record, however, FORD MOTOR COMPANY 591 as to the comparative ability of those who were, and those who were not, recalled. It does appear from the testimony of many of the com- plainants that they had been satisfactory workmen, and there is in evidence data on the length of service in the whole plant of men recalled, following the shut-down, in three departments-trim, paint, and enamel. From this data it appears that the proportions of newer to older men in point of service were about the same shortly after the shut-down as they were before.24 The Trial Examiner, however, found that there had been discrimination when the particular complainant had more seniority than the great majority of those called back in his department, and was identified with the Union. Grouping the em- ployees 25 according to seniority, it appears that in each seniority group there were employees other than the complainants who were not re- ,called. Some of those alleged to have been discriminated against were not in the highest seniority group. It thus follows that there were some employees, having greater seniority than some of the com- plainants, who were not recalled. The respondent in its brief, urges that under these circumstances the relative seniorities of the com- plainants and employees recalled are not a factor which the Trial Examiner should have considered in determining whether or not the refusal to reinstate certain employees was discriminatory. We agree that seniority should not be the controlling factor in determining whether discrimination took place. Insofar as the Trial Examiner's ultimate findings are inconsistent with this conclusion, we shall over- rule them. We reach this conclusion with some hesitancy, because of certain indications in the record that the discrimination practiced was more widespread that we have felt justified in affirmatively finding. Thus, as noted above, Subforeman John Ott remarked to Edward Lyczyn- ski, one of the complainants : "You and plenty others like you that are fooling around with the Union will get a grand screwing." When Lyczynski asked what he meant, Ott elaborated : "You will find out when we change the models." This clearly amounts to a prediction by the subforeman that discrimination was to be prac- ticed in recalling men after the shut-down. Nonetheless, we do not 24 Months of service________________________ 0-9 10-19 20-29 30-39 40-49 50-59 60-69 70-79 80-89 September 14,1937_______________________ 63 175 58 97 70 25 25 33 26 January 6,1938__________ 40 115 41 65 50 15 15 20 25 Months of service________________________ 90-99 100-109 110-119 120-129 130-139 140-149 150-159 September 14, 1937_______________________ 18 6 6 5 3 2 5 January 6, 1938___________________________ 14 5 6 5 2 2 5 Months of service________________________ 160-169 170-179 180-189 190-199 200-209 210-219 September 14, 1937_______________________ 1 1 1 0 1 1 January 6, 1938___ ____ _ 1 0 0 0 0 0 Months of service__ 220-219 230-239 240-249 250-259 260-269 270-279 September 14, 1937 ____ 3 2 0 1 0 1 January 6,1938_____________________ ____ 0 2 0 0 0 0 25 Data for the trim, paint, and enamel sections only are available. 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD feel that this type of evidence is sufficient to warrant broad findings of discrimination in the absence of special circumstances indicating that specific employees were not recalled to work because of their union activities. There are a number of factors to be considered in connection with the specific cases of alleged discrimination following the lay-off. Thus where a union member testified without contradiction that in previous years he had been among the first to be recalled to work following a shut-down, this evidence is sufficient to establish that the employee in the past had measured up to the respondent's stand- ards of versatility and seniority, and should have been recalled to work following the September 1937 shut-down, even though not all of the employees were recalled .2' Again, where a union member with substantial seniority was not recalled to work and there is some special circumstance indicating that such individual's union activi- ties were brought to the respondent's attention, the sum of the cir- cumstances may justify the conclusion that he had been discrim- inated against for this reason. Moreover, as already indicated above, if the man attended the union meeting at the Root Building, this is particularly significant. Only about 20 men attended that meet- ing, which was spied upon by the respondent's agents, and at least 18 of these subsequently were discharged or refused reinstatement after the shut-down.27 Similarly, a showing that the respondent was seeking a pretext upon which to base the discharge of a par- ticular union member may be a circumstance which, combined with the other facts, will require the conclusion that the man in question was discriminated against when he subsequently was denied rein- statement. In its brief the respondent contends that its employees were "discharged" when the plant closed in September 1937, and that they were no longer employees within the meaning of Section 2 (3) of the Act.28 We are convinced that the employees were temporarily laid off and not discharged. The plant is shut down annually dur- ing the change of models. When production is resumed substan- tially the same staff is customarily recalled to work. When such a shut-down is utilized to oust members of a union from their jobs because of their union affiliation, the employer is guilty of unfair labor practices within the meaning of the Act.29 26 As pointed out above , 353 of the employees laid off in September 1937 had not been recalled by December 10, 1937. 27 See footnote 17, supra. 28 It is interesting to note that as to those employees who were alleged in the complaint to have been discharged, the respondent contended that they were merely laid off and not discharged. 29 Matter of The Kelly-Springfield Tire Company and United Rubber Wog kers of America, 6 N. L. It. B. 325; Matter of Algonquin Printing Company and United Textile Workers of America, Local No. 1044, 1 N. L. R B. 264 FORD MOTOR COMPANY 593 John Pensky was employed by the respondent in 1934. His work was in the trim department. He attended the Root Building meeting on May 8, 1937. During the following week, as he and some of his fellow workers were talking with one another as they worked, Sub- foreman John Ott came upon them and asked : "What the hell are you fellows talking, union again?" Pensky replied : "No, nothing in particular." Ott responded: "Oh, don't tell me that; I can point my finger and fire those fellows that are talking union." Pensky had been one of the first to join the Union, doing so on May 6, 1937, and was treasurer of the local. He had been one of the group summoned to hear Ostrom and Ott warn against union activity. After the general lay-off in September 1937, he was not called back. Despite numerous efforts to regain his job, he still had not been recalled until just before the hearing, when he received one of the letters discussed below. Since 1934 Pensky had been among the very first men called back to work after general lay-offs. He testified, without contradiction : "Yes, I was the first man before even production was started, I was called back and I worked until the car was finished in the fall." There is no explanation by the respondent as to why this man, who was among the first to be recalled in previous years, was on this occa- sion not recalled. Upon all the evidence, we are convinced that the reason for the failure to recall Pensky was his union membership and activities, and we so find. Ernest P. Johnson worked for the respondent for about 20 years. His operation was working on the trim line. He joined the Union on May 8, 1937, and set out to attend the meeting at the Root Building on that day. He did not enter the building, however, due to the presence there of Maroone and the servicemen. After the general lay-off in September, Johnson made repeated efforts to get back to work, but to no avail. Several telephone calls to Maroone produced a stock answer : "When we need you, we will send for you." In previous years, Johnson was one of the first men on the trim line to be recalled after shut-downs. Superintendent Miller testified that the particular job on which Johnson had been working before the shut-down was that of putting on door panels, that whereas two men had been doing this operation before the shut-down, only one was so employed thereafter because of curtailed production, and that one Forrest, who did this work after the shut-down, was versed in several operations. Miller conceded that Johnson was a good workman, and did not claim that he was unable to do other operations. Forrest had been with the respondent for 1 year; Johnson for 20. Miller's explanation of the failure to recall Johnson is not persuasive. We are convinced that had it not been for Johnson's, affiliation with 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union he would have been recalled promptly upon the resumption of production, and we so find. John Truchon began working for the respondent in 1923, coming to Buffalo from the Detroit plant in 1930. He worked in the trim depart- ment. The exact date on which he joined the Union does not appear, but he attended at least two of the union meetings, including the one at Broadway and Ash Streets, on May 15. As previously noted, Maroone and a serviceman spied on that meeting. Following the September shut-down, Truchon was recalled to work and reported to Maroone on November 15. Maroone sent him to the doctor for the regular physical examination. Truchon passed the examination, and was told to come in the following morning to start work. He arrived at the plant at the appointed time but the re- spondent's men at the gate refused to admit him until his number was called out. It was never called. Truchon went back to the plant daily, but could not get in to see Maroone. ' Truchon had in previous years been among the first to be called back. During the week following his abortive recall in November, 93 other men were recalled to work in his department, and 79 were put to work the week after that. In the absence of any satisfactory explanation by the respondent of the treatment of Truchon, we find that his inability to get back to work resulted from his membership in the Union. Frank Kornowicz was first employed by the respondent in 1934. He was assigned to an operation on the body line. He joined the Union in July. At the time of the general lay-off in September 1937, he was told by his superior 30 that "we would be called back," in about 2 or 3 weeks. When production resumed, Kornowicz received a telegram instruct- ing him to report for work. He did so, passed the physical examina- tion, had his time card filled out, and was about to ring in at the time clock when Maroone halted him, saying, "Wait a minute. " Come back here." Maroone had just completed a conversation' with, a serv- iceman when he thus averted Kornowicz's return to' work. He then took Kornowicz's time card from him and after a lengthy delay sent him home with instructions to come in the next day. The next 2 weeks were spent by Kornowicz in futile efforts to get past the gate and into the plant; he was never returned to his job. Kornowicz's work had never been criticized. In previous years he had .been,,the `•firstsor second man to be called in" following shut- 80 Kornowicz did not specifically identify the person who told him this. He testified : it come the last day, and he lust naturally laid me off He said in about 2 or 3 weeks they would be called back, that we would be called back." It is evident, and we find, that the person giving him this information was in a position of supervisory authority with the respondent FORD MOTOR COMPANY 595 downs. His failure to get back at all this time, particularly in view of the peculiar incident after he was notified to return, prima facie, indicates that lie was the victim of discrimination growing out of his union activity. The respondent has furnished no explanation of the refusal to give Kornowicz work. We find that Kornowicz was unable to get his job back because of his union membership and activity. Otto Otte began to work for the respondent in 1929 and remained in the respondent's employ until his discharge on November 17, 1937. His work, including service in the enamel department and the hood department. had occasioned no complaints. He joined the Union in the middle of May 1937. In the early part of September, a subfore- man named Reno remarked to Wiirzer, one of the complainants, that he was certain of the union, membership of four employees. He named Otte as one of them. Otte worked until the general lay-off for change of models in the middle of September. On November 17, 1937, he was called back to work by telegram. He reported for work, was examined by the company doctor, was given a time card and a badge, and worked all that day. When he undertook to punch out at the end of the day, he found that his time card had been pulled out of the rack. A factory serviceman standing nearby told him to see Marooiie, which he did. His time card was lying on Maroone's desk. Maroone asked him for his number, and inquired as to when he had come in to work. Otte told him "this morning," and Maroone instructed him to wait for Malone, who wanted to see him. After a considerable wait Otte pointed out that he was tired and hungry and did not want to wait any longer unless it was absolutely necessary. He testified that Maroone then said, "I think they don't want any union men around here." Maroone then gave him his time card and told him to punch out. Just as Otte was leaving Malone came in, asked for Otte's time card, and told Otte to see, him, in the_ morning before starting work. The next morning Malone asked Otte how long he had been working there and what operation he was doing. Accord- ing to Otte, after he had given this information, Malone gave him his check for 1 day's work and said, "We have got to discharge you." Maroone by implication denied that he had said that the respond- ent did not want any union men around, and testified that Otte had told him he was dissatisfied with the job he was given on November 17 and wanted to go back to the work, he was doing formerly, and that he had been, let go because the requisition for the department in which Otte formerly worked was full. Maroone denied that he had told Otte that Malone wanted to see him. Malone testified that he did not recall any conversation with Otte at the time he 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was let out. Otte's termination of service card stated : "This em- ployee refused to do operation as instructed by foreman." Except for Maroone's statement above, there is no evidence whatsoever tend- ing to substantiate this charge. The foreman, Edgecomb, did not testify. We do not give credence to the testimony of Maroone and Malone. We find that Otte was discharged because of his affiliation with the Union. Joseph Di Agostino was employed by the respondent in 1930, and assigned to the trim line. He joined the Union in June 1937. Prior to that time he had set out to attend the Root Building meeting on May 8, but had fled the scene when he saw Maroone and a service- man there. He attended all the meetings thereafter. Following the shut-down in September, Di Agostino was not recalled to work. He had on one occasion presided at a union meeting, which fact was recorded in the local newspaper. In Novem- ber he called the employment office to inquire about reemployment. Subforeman John Ott answered the phone, asked for Di Agostino's number, and then stated : "Wait a minute. You are Di Agostino my good old friend. I see you got your name in the paper." We find that this was a reference to the item concerning Di Agostino's presiding at the union meeting. In prior years, Di Agostino had been among the first to be recalled after shut-downs. On all the evidence we find that the respondent failed to recall Di Agostino because of his union membership and activities. Anthony Caparella was employed by the respondent in 1929. At the time of the September lay-off, he worked in the commercial shop. He joined the Union in the latter part of July. When production resumed after the shut-down, Caparella was not recalled. His immediate superior, Assistant Foreman Tony Gerafa, informed him upon inquiry that he had sent Caparella's number, to the office twice in efforts to get him recalled, but that he had been instructed not to send it in any more. Gerafa added : "It must be that you had something to do with the Union." In previous years Caparella had always been recalled to work "the first day the commercial body went into production." We find that Caparella's failure to regain his job was because of his union membership and activities. Charles Goldenbaum was first employed by the respondent during 1934. He was engaged in an operation on the trim line. Goldenbaum was among the last to be laid off and among the first to be recalled in the general lay-offs prior to September 1937. He was among those laid off in September 1937 and was not recalled when the plant reopened. His work had not been criticized. I FORD MOTOR COMPANY 597 Goldenbaum attended the meeting held at the Root Building, the meeting held at Broadway and Ash Streets, and several other union meetings. He saw the servicemen at the Root Building meeting. When he was not recalled after production commenced he talked with Subforeman John Ott several times concerning the respondent's failure to recall him. During the latter part of October he had one such conversation with Ott and Ott said, "I can't see why you are not in . . . I put your name' in two or three times . . . I don't know what is the matter." Goldenbaum further testified that Ott "practically told me, `I think it is about the union that you can't get it."' While this latter testimony is somewhat indefinite, in the absence of any testimony by Ott we find that Ott indicated to Gold- enbaum that his union activities were responsible for the failure to recall him. As noted above, Goldenbaum had previously been among the last to be laid off and among the first to be recalled. We find that Goldenbaum was refused reinstatement because he had engaged in union activities. John Wurzer was employed by the respondent in 1929. Thereafter he was continuously employed except during periods when the plant was closed. He was employed in the enamel department where he had performed a number of operations, the last of which was metal finishing. Prior to the September lay-off he was made a pusher and he always had been among the first to be recalled when production commenced. Wurzer was laid off on September 16 and when pro- duction recommenced was not recalled. Wurzer joined the Union in May 1937, and attended several of its meetings. After Wurzer was made a pusher, Andy Reno, another pusher, told him that "If they find out you are a union man, they will throw you out through the window.'' Reno also told him that he knew four employees who belonged to the Union, naming Wurzer, Kosin,. McMullen, and Otto Otte. As noted above, Wurzer was able to do several operations, and in previous years had been among the first to be recalled. We find, on the whole record, that Wurzer was refused reinstatement because of his membership in and activities in behalf of the Union. Leo Krzyzykowski was first employed by the respondent in 1929. His work was on the trim line. He was continuously employed except during periods when the plant was shut down, and prior to the shut-down in September 1937 was always among the first to be recalled when production commenced. He received raises during 1937, and his work never was criticized. Krzyzykowski was among those laid off in September 1937. When production was resumed he returned to the plant to try to regain his job. On one occasion, the 283034-41-vol 23-39 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gateman found his number among the numbers of those who were to be admitted to the plant. He was admitted to the plant, and a serviceman asked him to wait outside the employment office. Presently Maroone asked him how he got into the plant and he an- swered that the gateman had his number. Maroone then conferred with Malone and returned and told Krzyzykowski that they would send for him when they wanted him. Krzyzykowski was not notified to return.s1 Krzyzykowski attended the meeting held in the Root Building, joined the Union while there, later attended all of the meetings of the Union, and became a member of its executive board. At lunch time he and other members of the executive board often discussed union problems. Krzyzykowski testified that Arthur Forrest, who was later made a pusher, listened in on some of their discussion and then left to talk to either Hathaway or Edgecomb, foremen. Forrest, Hathaway, and Edgecomb were not called to testify, and we accept Krzyzykowski's testimony in this regard. As noted above, Krzyzykowski in previous years had been among the first to be recalled. The respondent has not satisfactorily ex-, plained its different treatment of him on this occasion. We find that Krzyzykowski was refused reinstatement because of his mem- bership in and activities in behalf of the Union. Edward Kania was first employed by the respondent in 1930. His operation was touching up bodies on the body line. When produc- tion was resumed following the September 1937 lay-off, Kania was not recalled. His work had not been criticized. After lay-offs in prior years, Kania had been among the first to be recalled. Kania joined the Union in May 1937. He testified that he did not attend the first and second union meetings because some of the members of the Union told him before the first meeting was held that they were being spied upon by the servicemen. He attended the meetings which were held thereafter. Fredo, his foreman, on one occasion said he had heard that Kania belonged to the Union, and he asked Kania if it was true. Kania did not give a definite answer and Fredo then said, "You better not join it; it will be better for you." There is no explanation by the respondent of the failure to reemploy Kania. On the whole record we find that Dania was not reemployed because of his membership in and activities in behalf of the Union. Frank Meger was employed by the respondent in 1930. His opera- tion was putting in "wind cord." There are four employees engaged in this operation on each shift. Meger had the longest service of 31 Except for the notice discussed below, which was given immediately prior to the hearing FORD MOTOR COMPANY 599 any of the four on his shift. Meger testified that in prior years he was the first wind-cord man to be recalled when production was re- sumed after a lay-off . He has never had any complaint about his work. In past years he instructed new men who were learning to do the work. When production was resumed after the September 1937 shut-down Meger was not recalled. Meger joined the Union May 8, 1937, attended the meeting which was held at the Root Building, and saw two servicemen near the building . We find that Meger was re- fused reemployment because of his membership in and activities in behalf of the Union. Weldon Famish was employed by the respondent in 1925 and worked in the body department. He was not recalled following the September 1937 lay-off. On previous occasions when the plant had been closed he was recalled when operations were resumed. Farnish joined the Union in May 1937. He went out to the Broad- way and Ash Streets meeting of the Union but, seeing Maroone drive past in a car , decided that he would not attend. Farnish testified that during June or July 1937 he noticed that his foreman, Friend, and Malone were watching him. Malone and Friend then came down and looked at his work. Later in the day when Farnish obtained a tool order from Friend, Farnish was surprised to note that Friend knew his number and was able to write it on the order . Farnish asked Friend how he knew the number and Friend replied, "I got you. I know your number." Two or three days later Edgecomb came by and asked Farnish who had fitted certain windshield arms. Farnish said that he had fitted them . According to Farnish, Edge- comb then said, "I have been watching you 10 or 15 minutes and I never see you do one yet." Edgecomb told him to get a gauge and bring it up. Farnish did so, and they fitted the jobs. There was nothing wrong with them. Edgecomb went away shaking his head and saying, "God damn, can't get nothing on him." We find on the whole record that Farnish was refused reinstatement because of his membership in and activities in behalf of the Union. Guy Testa was first employed by the respondent during Novem- ber 1928. He worked in the enamel department . In past years he was the first in the enamel department to be called back when pro- duction was resumed. On November 17, 1937, following the Sep- tember lay-off, he received a telegram notifying him that he was to report for work on the following morning, and went to the plant at the designated time. His name and number were called out and he was sent in for a physical examination . He passed the exam- ination and was given a temporary badge. He then reported to Franz, his foreman, for work. Reno, a pusher , was near that part of the floor where Testa was to work. Reno said to Testa, "Guy, I 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thought you had been out to organize this time. You come back to work." Testa replied, "Andy, you can't do organizing on the out- side. You have to do it on the inside." Testa was put to work by his foreman, but after he had been working for about 25 minutes some servicemen came up and the foreman told him to go with them. He was then checked out in the usual manner. When he asked Maroone why he was being let out, Maroone said that nothing was wrong and that Testa would be recalled when needed. As Testa left the office he stopped to talk with three men who also worked in the enamel department and who were waiting for work, but Maroone came out of his office and told Testa to go home. Super- intendent Miller testified that Testa was called back for 30 minutes but that they could not employ him because he was involved in I compensation, case. However, Miller admitted that this reason did not appear on the termination of service card, that Testa was eligible for reinstatement at any time, and that he is not disabled in any way. After giving the above testimony Miller further said that Testa's "skin broke out on him, and we didn't deem it advisable to put him back on this operation until it was cleared up." Miller did not know whether or not Testa was drawing compensation. No effort was made to put Testa on some other operation. Testa had belonged to a union for 20 years before he was em- ployed by the respondent. On a number of occasions he talked to other employees in the plant expressing to them his approval of unions. He had also expressed his sentiments in regard to unions to Andy Reno, a pusher, and Reno had seen his union card. Miller's explanation for dismissing Testa after he was recalled does not ring true. It does not appear that Testa was receiving compensation. He passed the respondent's examination, was given his badge, and was put to work. Miller admitted that Testa was not disabled and that he was eligible for reinstatement at any time. On the whole record we find that Testa was dismissed because of his union activities. John Clark was employed by the respondent in late 1929 or early 1930. He has been employed at a number of different operations in the plant. At the time of the general lay-off in September 1937 he was working in the trim department. He was not recalled after the plant resumed operation. In prior years he was one of the last to be laid off and among the first to be recalled. Clark testified that he asked Tommy, his pusher, why he was not recalled and that Tommy told him that he had recommended that Clark be recalled, that he, Tommy, had talked to Foreman Hathaway about it, and that Hath- away had said, "I can't do a thing for you, you have to go in to the factory service." Neither the pusher nor Hathaway was produced FORD MOTOR COMPANY 601 to testify. Miller testified that he consulted the foremen concerning the employees to be recalled before preparing a list of such employees. The only explanation offered by Miller for the failure to recall Clark was that while they had previously used two body droppers, one on each shift, they only needed one body dropper when they, resumed operations, and that the other body dropper was recalled in prefer- ence to Clark. Miller did not know the other employee's name. He testified that "he would not say" that the body dropper recalled was more efficient than Clark. As we have stated above, Clark had performed a number of operations in the plant besides body drop- ping. We are not convinced by the respondent's explanation of its failure to reinstate Clark. Clark joined the Union on May 10, 1937. He attended a number of union meetings. Among them were the meetings held at the Root Building and at Broadway and Ash Streets, at both of which espion- age took place. He was subpoenaed to testify in a criminal assault case against Maeder, the serviceman which grew out of the beating administered Sredzinski in the plant by Maeder. Clark testified that as he approached the court house he met Edgecomb and Malone, that Edgecomb asked, "What the hell did you want to get mixed up in this for," that he answered, "I have a subpoena," and that Malone and Edgecomb looked at it and walked away. He testified that he then started to go into the court house again when Sutton, a service- man, came up to him and told him that he was "supposed to go to York at 2: 30" and that he should "forget about the whole thing." According to Clark, Malone and Edgecomb then drove up by the curb and Malone said, "If you have got a subpoena, you will have to appear." Sutton and Edgecomb were not called to testify. Malone testified, but no testimony concerning this incident was elicited from him. We find that Clark was refused reemployment because of his membership in and activities in behalf of the Union. Edward Rich was originally employed by the respondent in 1929, and worked on the trim line. He had been laid off in prior years when the plant was closed during the change of models, but he was always recalled when the production was resumed. There was never any complaint about his work. He was not recalled after the September 1937 shut-down. Rich started to attend the union meeting which was held in the Root Building, but upon approaching the building he recognized Maroone and Maeder standing nearby and decided that he would not attend. On the following morning and on several mornings there= after, Ostrom, his foreman, greeted Rich by saying, "Good morning, Mr. Lewis." 32 Ostrom later said to him, "Why did you want to = See footnote 10, supra. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD join the Union? You are making plenty of money." Rich attended several union meetings thereafter. The above testimony indicates that the respondent knew of Rich's union activities. Rich had long seniority, and by the respondent's test he should have been among the first to be recalled. We find that Rich was refused reemployment because of his membership in and activities in behalf of the Union. William Scott was employed by the respondent in 1929 or 1930. He worked in the paint department as a striper and touch-up man. Of the 15 men employed at this operation, only one had more sen- iority then Scott, who often had instructed new men in the work. He has been continuously employed except when the plant was closed during the changes in models. He was not recalled following the September 1937 lay-off. Scott testified that after production was, resumed Sam Ciccio, an employee, came to his house and told him that Scott's boss wanted him to report for work on the following day, that he went to the plant as directed, and that Walsh, his fore- man, told Bill O'Keefe, a gateman, "send this man upstairs, we need him right away." When O'Keefe did not send him up Scott asked to be sent up to the paint department and O'Keefe said, "The boss ain't got a God damned thing to do about this. It has to come through the front office." Scott attended every meeting of the Union. He saw Sullivan and Maroone driving by the Union's meeting place at Broadway and Ash Streets on the evening that the Union held its meeting there. During June he made a speech at a union meeting which was held at Genesee and Wilson Streets. Scott testified that when he went to work on the following morning servicemen kept him under surveillance even when he was going to the toilet. On the day following a sit-down strike in the Fisher Body plant in Buffalo, Scott had a conversation with a pusher named Blackie. Scott testified that he said to Blackie, "Too God damned bad this place wouldn't sit-down on a strike," and that Blackie replied, "When I came to the Ford Motor Company I asked for work . . . The first man or any of my men I see sit- 'down I will kick his God damn brains out." Blackie was not called to testify. Scott had high seniority and he should have been among the first recalled to work. His foreman recommended him for work. There is no satisfactory explanation by the respondent-of its denial of employment to him. We find that Scott was refused reemployment because of his membership in and activities in behalf of the Union. William Kalman was employed by the respondent in 1935 as a metal finisher in the body department. He was not recalled following the September 1937 lay-off. I FORD MOTOR COMPANY 603 Kalman joined the Union on May 10. He attended several meetings of the Union, including the meeting which was held at Broadway and Ash Streets, which was subjected to espionage. During August Kal- man noticed that he was being kept under close surveillance. Later Malecki, his pusher, while accompanied by a serviceman, obtained Kalman's number. Malecki testified that he obtained the number at the serviceman's order, and that the serviceman told him, "Get him (Kalman) out." Malecki testified that Bill Fredo, a foreman, came along at that time, and that he told Fredo that he was not going to assume the responsibility of getting Kalman out and that he (Fredo) would have to take the responsibility. Fredo did not testify. Kalman testified that later Bill Fiorito, the line foreman, said to him, "Bill, I hear you joined the union"; that he asked Fiorito, "What have you against it if I did join the union"; that Fiorito answered, "Nothing, but I want you to work for me"; that he asked Fiorito, "Can't I work for you if I am in the Union"; and that Fiorito then replied, "For my part you can, but there is somebody else in this plant, not only me, and you better watch your step." Thereafter Kalman was successively transferred to the test house, the commercial department, and finally, back to his old job. There was close inspection of his work on the new jobs, but his work apparently was not defective and no pretext for his discharge was found prior to the general lay-off. We find that Kalman was refused reinstatement because of his union activities. Edward Lyczynski was employed by the respondent in 1935. He worked in the trim department where he installed door handles. 'There is no evidence of any complaint concerning his work. He was not recalled following the September 1937 lay-off. Lyczynski joined the Union in July 1937. He attended several of its meetings. According to Lyczynski, during August 1937 his fore- man, Ott, asked him, "Say, what is the color of the union card"; he replied "What are you talking about? What union card"; and Ott replied, "You know God damned well what I am talking about." Lyczynski further testified that on the following day Ott said to him, "You and plenty others like you that are fooling around with the union will get a grand screwing"; he asked, "What do you mean"; and Ott replied, "You will find out when we change the models." Ott was not called to deny this. We find that Ott made the statements attributed to him above. In view of Ott's threat to Lyczynski and on the whole record, we find that Lyczynski was refused reemployment because of his membership in and activities in behalf of the Union. Bernard Beck, employed by the respondent for 3 years, worked on the trim line. He was not recalled when work commenced following the September 1937 shut-down. In prior years he was rehired as soon 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as production commenced. There had been no complaint concerning his work. After production was resumed Beck met Ott, his foreman, on the street and Ott said to him, "I put in your number and I don't understand why you don't get called ... I would rather have you working here than this fellow that is working on your job now." Beck joined the Union around June 15, 1937. Prior to joining the Union he had attended the meeting which was held at Broadway and Ash Streets. We find that Beck was refused reemployment because of his membership in and activities in behalf of the Union. Frank Godzich, employed in the trim department for 21 years, had more experience than any other employee doing his line of work. He instructed new employees in the trim department. He was not recalled when production was resumed in the fall of 1937, although in prior years he had been recalled as soon as work on the new model was begun. Godzich joined the Union on May 28, 1937, and attended some of its meetings. We find that the respondent failed to recall Godzich because he was a member of the Union. Tony Kosin was employed by the respondent for 8 years. He worked in the enamel department. He was not recalled following the Septem- ber 1937 lay-off. In prior years, he was called back to work soon after production was resumed. Kosin joined the Union in May 1937 and attended all of its meetings. We find that the respondent failed to recall Kosin because of his membership in and activities in behalf of the Union. William Petrocy was employed by the respondent in 1929, worked on the trim line, and was not recalled following the September 1937 lay-off. There had been no complaint as to his work. In prior years he was laid off when the models were changed. When production was resumed in the preceding year he was one of the first five called back on the line. Petrocy joined the Union at the meeting held at the Root Building and attended several union meetings thereafter. We find that Petrocy was refused employment because of his mem- bership in and activities in behalf of the Union. Joseph Jaworski was in the respondent's employ for 9 years, and from 1934 to 1937 was a pusher. He was not recalled when production was resumed in the fall of 1937 although in prior years he was one of the first to be put on the job. Superintendent Miller conceded that Jaworski was an exceptionally good worker. Jaworski attended every union meeting and solicited membership among the other employees. We find that Jaworski was refused reemployment because of his membership in and activities in behalf of the Union. Harry Strash was in the respondent's employ for 4 years. During the first 3 years he worked in the trim line and during the last year he FORD MOTOR COMPANY 605 worked in the cushion department. There was no complaint as to his work, and during previous lay-offs, he was retained the full time. Following the September 1937 lay-off he was not recalled. Strash attended the union meetings in the Root Building, and there saw Maroone and Sullivan. Strash testified that on the following Monday when the employees lined up to receive their wages, Maroone walked up and down the line and took down his badge number and the badge numbers of others who had attended the meeting. As previ- ously noted, substantially all who attended the meeting at the Root Building were later discharged or were not recalled following the September 1937 lay-off. We find that Strash was refused reemployment because of his mem- bership in and activities in behalf of the Union. James George has had experience in several automobile plants. He was employed by the respondent in 1929 and was assigned to the trim line. George joined the Union during May 1937, and attended a num- ber of union meetings. He set out to attend the Root Building meet- ing, but on seeing Sullivan, Maeder, and Maroone, did not attend. Following the 1936 lay-off, George was recalled when only a few employees had been recalled and the lines were only half filled with cars. He was not recalled following the September 1937 lay-off. We find that George was refused reinstatement because of his mem- bership in and activities in behalf of the Union. Alexander McMullen,, Ignatius Lodyga, Edward Czarnecki, Joseph Krajewski, Charles Brawn, Julian Bolewicki, Joseph Wiatrowski, Frank Maturzak, Alphonse Rucki, Andrew Learch, Casimir Czer- winski, Alfred Krajewski, Joseph Zavodny, Walter Szezuelewski, John Slawa, Max Zdral, Theodore Szczepankiewiez, Anton Agoston, and Anthony Jarosz. All of these men were included in the general lay-off in September and none were recalled thereafter, except that some received the letters of January 7, 1938, discussed below. Although they were all union members, there is no evidence that any of them had been in prior years among the first to be recalled after shut-down, nor are there any other special circumstances in their cases to support a find- ing of discrimination. While the record as a whole gives rise to considerable suspicion that they may have been among the victims of the respondent's general design to rid the plant of union men, we do not think the charges have been sustained as to them in view of the considerations discussed at the beginning of this section. Accor- dingly, the allegations of the complaint in regard to these employees will be dismissed. Edward Sherman, Andrew Bienek, Frank Rueinski, Thomas R. Saia, Frank Karaszewski, Stephen Karaszewski, and Stanley Slajkowski. 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD None of these complainants testified at the hearing, and there is not sufficient evidence in the record to support the allegations of the complaint as to them. We find that the respondent has discriminated in regard to the hire and tenure of employment of the employees named in Appendix A and Appendix B, attached hereto, thereby discouraging membership in the Union and interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed them in Section 7 of the Act. We find that the respondent has not discriminated in regard to the hire and tenure of employment of the employees named in Appendix C, attached hereto. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respond- ent described in Section I above, have a close, intimate, and substan- tial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY We have found that the respondent has engaged in certain unfair labor practices, and our order will be designed to restore, as nearly as possible, the status quo existing before the commission of the un- lawful acts. The respondent will be ordered to cease and desist from its unfair labor practices and to take certain affirmative action which we find necessary to effectuate the policies of the Act. As found above, the respondent has illegally discriminated against 38 of the individuals named in the complaint and amended complaint. The normal remedy for such discrimination is to order the employees reinstated with back pay. The respondent asserts that none of the complainants can be rein- stated unless the record affirmatively shows that he has not rejected opportunities for substantially equivalent employment elsewhere fol- lowing the discrimination against him. To hold otherwise, urges the respondent, would "allow an individual to refuse offers of other regu- lar and substantially equivalent employment and to live . . . `the life of Riley' at a former employer's expense." 33 We are of the opinion that the Board's power to direct the reinstatement of employees is not conditioned on a showing that the employees in question have not rejected any offers of substantially equivalent employment. Respondent's brief, p. 130. FORD MOTOR COMPANY 607 Finally; the respondent asserts that many of those alleged to have been discriminated against should not be reinstated because prior to the hearing they refused offers of employment by the respondent. The hearing in this proceeding was scheduled to begin, and did begin, on January 11, 1938. On January 7, 1938, the respondent sent letters to 75 individuals, including all of those mentioned in the original complaint,34 notifying them to return ready for work on January 10.35 Approximately all of the employees mentioned in the original complaint received the letter.36 Thereupon these employees consulted counsel for the Union and counsel for the Board. Counsel for the Union then prepared a letter reading as follows : FORD MOTOR COMPANY, Fuhrnzan Drive, Buffalo, New. York. GENTLEMEN : In response to your recent letter, I hereby report for Work and demand my back pay for the time that I was un- employed. In the event that the back pay is not paid by the Ford Motor Company, in accepting the position I in no way waive or relinquish my right to back wages. Copies of this letter were mailed to the respondent by 41 of the individuals named in the original complaint. Most, if not all, of these letters had been received by the respondent by January 12. The men did not appear at the plant personally on January 10. In the meantime the hearing proceeded until February 4, 1938, and was attended from time to time by the complainants in question. On January 16 a committee representing the complainants went to the plant to request actual reinstatement for the complainants. Klump then told them, however, that since the men had not returned on the exact day specified in the letter they would have to apply for employ- ment in the usual way. On the following day the men accordingly sent individual, written requests for employment to the respondent, stating in substance that in returning to work the complainants did 34 These employees are : Bean, Clark , Curtin, Fielkowski, Kaiser, Kupkowski , Lawler, Lipira, Miskowiak, Salley, Sherman , Snyder, Andrew 'Sredzinski , Walter Sredzinski, Nowicki , Socenski , Agoston, Beck , Czarnecki, Czerwinski , Caparella, Di Agostino, George, Goldenbaum , Jarosz, Johnson, Kandrat , Kania, Kosin, Krzyzykowski, Lodyga , Lyczynski, McMullen, Otte, Pensky, George Petrocy , William Petrocy , Rucinski, Rucki, Sala, Strash, Scott, Truchon , Wurzer , Rich , Alfred Krajewski, and Joseph Krajewski 81 The letter read as follows : JANUARY 7, 1938. DEAR SIR: Please report to the employment office, Monday , January 10th, at 7 . 30 A. M, ready for work FORD MOTOR COMPANY, (SGD) J. J. MAROONE, Employment Dept 88 Snyder, Walter Sredzinski , and Curtin did not receive the letters. The letter was received by Otte and Rich on January 10 and by Lipira on January 11, too late for them to accept the "offer" of work. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not relinquish their rights to back pay or the rights guaranteed by Section 7 of the Act. One of the complainants, Thomas R. Saia, and 22 of the individ- uals other than those mentioned in the original complaint and to whom the offer of reinstatement was made, returned to work on January 10, 1938, and were employed until a reduction in the pro- duction schedule necessitated further lay-offs on or about February 16, 1938. The respondent now contends that since the 41 complainants who sent in the letters mentioned above did not appear in person at the plant on January 10, they rejected a valid offer of employment and hence cannot be reinstated 37 A careful consideration of the facts, however, leads us to the conclusion that the men should be ordered reinstated. We note at the outset that the respondent cannot prop- erly assert any lack of power in the Board to order the reinstate- ment of an employee merely because he has received a prior offer of reinstatement. Section 10 (c) of the Act empowers the Board, upon finding that a person has engaged in an unfair labor practice, to order such person ". . . to take such affirmative action, including reinstatement of employees with or without back pay, as it finds will effectuate the policies of this Act." In exercising our discre- tion under this provision, however, it is true that we have in several cases 38 declined to order the reinstatement of workers, unlawfully discriminated against, where they have rejected a prior offer of re- instatement. In these cases the employer's offer of reinstatement was unequivocally rejected by the employee. In the present case, it is noteworthy that the men did not respond to the offer with an assertion that they did not want their jobs back. On the contrary, they made it plain that they were desirous of returning to work. While they may have been ill-advised in not reporting for work on January 10, the letters which they mailed to the respondent signified their desire to resume employment provided some understanding was' reached as to the back pay to which they were entitled. The hear- ing was to begin on the next day ; the men were evidently laboring under the impression that by actually returning to work they would be prejudicing their important rights at issue in the pending pro- ceeding. Furthermore, they doubtless wished to be present during the hearing, which was of vital importance to them, and at which 37This contention obviously is without application to those employees who never received the letter and to the three employees who did not receive the letter until after the time they were instructed to report at the plant. e" Cf. Matter of Precision Castinos Company, Inc . and Iron Molders Union of North America, Local 80, 8 N. L. R. B. 879; Matter of Harter Corporation and International Ass'n of Machinists, 8 N. L. It. B. 391. FORD MOTOR COMPANY 609 they testified. We cannot believe that the men, by not reporting to work, in any way intended to indicate that they were not desirous of further employment by the respondent.39 Under the circum- stances, Ave see nothing unreasonable about their failure to report for work on January 10. The facts strongly indicate, moreover, that the respondent' s "offer" of employment was merely a tactical move' in connection with the hearing in this case. We note particularly that when the complain- ants failed to report on January 10, the respondent did not replace them with other men,40 and it had not done so a week later when they applied for work and were rejected.- The record shows, and we find, that the respondent was just as able to take the complainants back on January 16 as it was on January 10. Had the respondent been honestly desirous of restoring the men to their jobs, we are convinced that it would have employed them on January 16 42 To sum up, we find that the complainants were anxious to be restored to their jobs, that this was known to the respondent, that the men's failure to report on January 10 was born of a confusion raised by the imminence of the hearing, and that when they unsuc- cessfully attempted to go back to work a week later, the respondent's refusal to take them back was not based on any inability to do so. It is clear that, far from having any honest desire to reinstate the employees, the respondent took advantage of their confusion to pro- vide it with a technical defense that the "offer" discharged its obliga- tion to reinstate the men .43 In view of all these facts, it is our judg- ment that the policies of the Act will best be effectuated by ordering reinstated those complainants against whom the respondent unlaw- fully discriminated. In addition, we shall order the respondent to make whole the employees discriminated against for any loss of pay they have suffered by reason of such discrimination by payment to each of them of a sum equal to the amount which he normally would have earned as wages from the date of the discrimination against 89 On January 11, 12 , and 13, Snyder, Nowicki , Andrew Sredzinsld , Miskowiak , Socenski, Fielkowski, Bean , Salley, Kaiser, Lawler, Lipira, Johnson, Otte, Clark, Rich, Strash, Pensky, Lyczynski, Di Agostino , Caparella , Beck, Goldenbaum, Truchon, Wurzer, Krzyzy- kowski , Scott, George Petrocy, George, Agoston, McMullen , and Jarosz testified that they desired reinstatement. 40 while 23 employees were employed on January 10, they had received offers at the same time the complainants were offered employment and did not receive jobs which would have been given to the complainants if they had been present It is to be noted, moreover, that those who were given employment were again laid off on February 16, 1938- 41 Two employees were employed between January 10 and January 16 r^ Under the circumstances of this case , it may be doubted whether the employees were granted sufficient time within which to return to work 43 On February 16, 1938 , approximately 34 days after the offer of reinstatement, the respondent laid off 235 employees Those employees who accepted the offer and returned to work on January 10 were included in the lay -off. In all probability , the complainants, if they had returned to work, would have received the saine treatment we are convinced that a lay -off of such magnitude was foreseen when the offers of reemployment were made, and that no period of extended employment was intended - 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him" to the date of reinstatement pursuant to our order, less his net earnings 45 As to those employees who were discharged prior to the general lay-off, the date of the discriminatory discharge is the date from which the back pay will begin.46 When the plant resumed produc- tion, following the September 1937 lay-off, Otte and Testa were called back to work and subsequently discriminatorily discharged. Their back pay will begin from the dates of their respective discharges 47 Truchon also was called back, given a physical examination, and told to report on the following day. He was refused admission to the plant, however, when he returned. Truchon's back pay will date from the refusal to admit him to the plant .411 Kornowicz similarly was given a physical examination and a time card was issued to him, and as he was about to ring in, his time card was taken from him. The exact date on which this occurred, however, is not clear from the record. We therefore determine the date of the discrimina- tion as to him in the same way that the date of the discrimination as to the remainder of the discriminatory lay-offs is determined. The re- mainder of the employees who were discriminatorily laid off testi- fied that in prior years during the general lay-off they were retained, were the first employees doing their type of work to be recalled, were among the first employees to be recalled, or were recalled when production was resumed. Under ordinary circumstances, these em- ployees should have been among the first employees recalled following the September 1937 lay-off. In view of the substantial reduction in the respondent's production schedule in 1937, however, we shall not order the back pay of the employees discriminatorily refused rein- statement to begin as of the first day on which jobs which they were capable of doing were filled. Upon the resumption of production in 1937, the respondent recalled 449 employees during the first 5 weeks of production, and during the 6th week recalled 444 employees. All of the employees found to have been' discriminated against in- dicated that in previous years they had been among the earliest em- 44 The applicable date for each employee is set forth opposite his name in the appendices attached hereto. 4513y "net earnings" Is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for the unlawful discrimination against him and the consequent necessity of his seeking employment else- where. See Matter of Crossett Lumber Company and United Brothe,hood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2.i90, 8 N. L R. B. 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects are not considered as earnings , but, as provided below in the Order, shall be deducted from the sum due the employee, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects 46 See Appendix A, attached hereto 47 See Appendix B, attached hereto. 48 Ibid. FORD MOTOR COMPANY 611 ployees recalled following shut-downs. By the end of the 6th week following the shut-down during September 1937, approximately 1154 men were employed. Immediately prior to the shut-down approxi- mately 1664 men were employed. On the basis of their past experi- ence, we find that all of the employees who were discriminatorily refused reinstatement should have been recalled by the end of the 6th week at the latest. Accordingly, the back pay of the remainder of the employees who were discriminatorily refused reinstatement shall begin as of November 26, 1937.49 Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. International Union, United Automobile Workers of America, Local 425, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. The respondent, by discriminating in regard to the hire and tenure of employment of the employees named in Appendix A and Appendix B, attached hereto, thereby discouraging membership in the Union, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. 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. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not discriminated in regard to the hire and tenure of employment of the employees named in Appendix C, attached hereto. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Ford Motor Company, its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in International Union, United Auto- mobile Workers of America, Local 425, or any other Labor organization of its employees by discharging or refusing to reinstate any of its em- ployees or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment 49 See Appendix B, attached hereto. 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because of their membership in, activity in behalf of, or sympathy toward any such labor organization ; (b) In any manner interfering with, restraining, or intimidating, directly or indirectly, members of International Union, United Auto- mobile Workers of America, Local 425, or any other labor organization of its employees displaying notices of union meetings or otherwise disseminating union literature in the vicinity of its Buffalo plant; (c) Interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act by circulating, distributing, or otherwise disseminating among its employees state- ments or propaganda which disparages or criticizes labor organizations or which advises its employees not to join such organizations; (d) Engaging in any manner of espionage or surveillance or en- gaging the services of any agency or individuals for the purpose of interfering with, restraining, or coercing 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, or to engage in concerted activities for the purposes of col- lective bargaining or other mutual aid or protection; (e) In any other manner interfering with, restraining, or coercing its employees 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 concerted activities, for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Rela- tions Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to the employees named in Appendix A and Appendix B, attached hereto, immediate and full reinstatement to their former positions, without prejudice to their seniority and other rights and privileges; (b) Make whole the employees named in Appendix A and Ap- pendix B, attached hereto, for any loss of pay they have suffered by reason of the respondent's discrimination in regard to their hire and tenure of employment, by payment to them, respectively, of a sum of money equal to that which each would have earned as wages during the period from the date of such discrimination against him to the date of the offer of reinstatement, pursuant to this Order, less his net earnings during that period; deducting, however, from the amount otherwise due to each of the said employees, monies received by said employee during said period for work performed upon Fed- eral, State, county, municipal, or other work-relief projects, and pay over the amount, so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or FORD MOTOR COMPANY 613 governments which supplied the funds for said work-relief projects; (c) Post immediately in conspicuous places throughout all depart- ments of its plant in Buffalo, New York, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating : (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), (c), (d), and (e) of this Order; (2) that the respondent will take the affirmative action *set forth in paragraphs 2 (a) and (b) of this Order; and (3) that the respondent's employees are free to become or remain members of International Union, United Automobile Workers of America, Local 425, and the respond- ent will not discriminate against any employee because of membership or activity in that organization; (d) Notify the Regional Director for the Third 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, in so far as it alleges that the respondent discriminated in regard to hire and tenure of employment of the employees named in Appendix C, attached hereto, be, and it hereby is, dismissed. APPENDIX A Employees discriminatorily discharged prior to the September 1937 lay-off and the dates on which the discrimination as to them began : Patrick Curtin, June 23, 1937 Stanley S. Fielkowski, May 11, 1937 50 Joseph Kaiser, May 12, 1937 Frank Kandrat, August 9, 1937 Alfred Kupkowski, June 1, 1937 Vincent Lipira, June 28, 1937 Anthony Miskowiak, May 10, 1937 50 Joseph E. Nowicki, July 8, 1937 Frank Snyder, July 8, 1937 Andrew Sredzinski, May 11, 1937 60 Walter Sredzinski, June 8, 1937 50 Martin Socenski, July 10, 1937 51 so The dates on the termination -of-service cards of Fielkowski, Miskowiak , Andrew Sred• zinski and Walter Sredzinsl: i are from 1 to 3 days later than the dates on which their respective discharges took place according to their testimony . It is not clear that the termination -of-service cards are always made out on the same day that given employees are discharged . Accordingly, we have adopted the testimony of the four individuals as correctly setting forth the dates of their respective discharges 61 Socenshi's termination-of-service card Is dated July 10, although lie testified that he was discharged on June 30 We do not believe that had his discharge actually taken place on June 30 there would have'been such a lapse of time between the discharge and the filling out of his termination-of-service card Accordingly, we adopt the date appearing on the card as more nearly setting forth the true date of Socenski's discharge 283034-41-vol 23-40 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B Employees discriminatorily discharged or discriminatorily refused reinstatement after the resumption of production in October 1937, and the dates on which the discrimination as to them began : 1. Employees as to whom discrimination is deemed to have com- menced on November 26, 1937: Bernard Beck Frank Kornowicz Anthony Caparella Tony Kosin John Clark Leo Krzyzykowski Joseph Di Agostino Edward Lyczynski Weldon Farnish Frank Meger James George John Pensky Frank Godzich William Petrocy Charles Goldenbaum Edward Rich Joseph Jaworski William Scott Ernest P. Johnson Harry Strash William Kalman John Wurzer Edward Kania 2. Employees as to whom discrimination began on other dates: Otto Otte, November 17, 1937 Guy Testa, November 17, 1937 John Truchon, November 16, 1937 APPENDIX C Employees as to whom the complaint is dismissed : 1. Those who did not testify: Andrew Bienek Thomas R. Saia Frank Karaszewski Edward Sherman Stephen Karaszewski Stanley Slajkowski Frank Rucinski 2. Those found not to have been discriminated against: Anton Agoston Alfred Krajewski Cameron Bean Joseph Krajewski Julian Bolewicki Lawrence Lawler Charles Brawn Andrew Learch Edward Czarnecki Ignatius Lodyga Casimir Czerwinski Alexander McMullen Anthony Jarosz Joseph Malecki I FORD MOTOR COMPANY 615 Frank Maturzak Theodore Szczepankiewicz George Petrocy Walter Szczuelewski Alphonse Rucki Joseph Wiatrowski Stephen S. Salley Joseph Zavodny John Slawa Max Zdral MR. WILLIAM M. LEIsnRsoN took no part in the consideration of the above Decision and Order.