Ford Motor Co.

FORD MOTOR COMPANY~ 413 Ford Motor Company and Dennis Siriani and Doug- las West. Case 7-CA-15120 August 22, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELL.O On February 13, 1980, Administrative Law Judge Frank H. Itkin issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order,2 as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Ford Motor Company, Dearborn, Michigan, its of- ficers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 2(a): "(a) Offer to promote Dennis Siriani and Doug- las West to the supervisory positions which they were unlawfully denied during June and November 1978, and make them whole for any loss of earn- ings which they may have suffered by reason of such unlawful conduct, in the manner set forth in the section of this Decision entitled 'The Remedy."' 2. Substitute the attached notice for that of the Administrative Law Judge. I In adopting the Administrative Law Judge's finding that Respondent violated Sec. (a)(3) and (4) of the Act by denying employees Siriani and West promotions to supervisory positions, we agree with him that Re- spondent's asserted reason, the presence of more qualified employees, was pretextual. We therefore find it unnecessary to rely on the Administrative Law Judge's additional ground that Respondent was motivated "in sub- stantial part" by an unlawful purpose 2 The Administrative Law Judge recommended, inler alta, that the Board order Respondent to promote employees Siriani and West to the supervisory positions they were unlawfully denied. We shall modify the recommended Order, in accord with Board precedent, to require Respon- dent to offer Siriani and West such promotions Richboro Communii, Mental Health Council. Inc., 242 NLRB 1267 (1979). 251 NLRB No. 66 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT coercively interrogate our employees concerning their intentions to take concerted legal action against us with respect to our promotion policies. WE WILL NOT threaten our employees with discharge or deny them promotions if they take concerted legal action against us with re- spect to our promotion policies. WE WILL NOT threaten our employees with the denial of promotions if they file unfair labor practice charges with the National Labor Relations Board. WE WILL NOT reprimand or otherwise harass our employees in retaliation for their having filed unfair labor practice charges with the Board. WE WILL NOT deny promotions to our em- ployees because they have filed grievances and contemplated further concerted legal action in protest over our promotion policies and be- cause they have filed unfair labor practice charges with the Board. WE WILL NOT discourage membership in Plant Protection Association National, Local 100, or in any other labor organization, by denying promotions to our employees because they have engaged in union or other protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed to them in Section 7 of the National Labor Rela- tions Act, as amended. WE WILL offer to promote employees Dennis Siriani and Douglas West to the super- visory positions which they were unlawfully denied during June and November 1978, and WE WILL make them whole for any loss of earnings which they may have sustained by reason of our unlawful conduct, with interest. FORD MOTOR COMPANY Ford Motor Company and Dennis Siriani and Doug- FORD MOTOR COMPAN 413 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION FRANK H. ITKIN, Administrative Law Judge: An unfair labor practice charge was filed in this case on May 3, 1978, and was amended on December 1, 1978. A complaint issued on June 29, 1978. An amended com- plaint issued on September 7, 1978, and was further amended at the hearing. The hearing was conducted in Detroit, Michigan, on December 5, 1978, and on January 23, 24, 25, and 26, 1979. Briefly, General Counsel alleges that Respondent Ford Motor Company violated Section 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended, by coercively interrogating employees con- cerning their intentions to take concerted legal action against the Company with respect to its promotion poli- cies; by threatening employees that they would be denied promotions or discharged if they took concerted legal action against the Company with respect to its promo- tion policies; by threatening an employee with the denial of a promotion for having filed an unfair labor practice charge in this proceeding; by harassing an employee in retaliation for his having filed an unfair labor practice charge in this proceeding; and by denying employees Dennis Siriani and Douglas West promotions to supervi- sory positions because they had filed grievances, had threatened further concerted legal action in protest of the Company's promotion policies, and had filed an unfair labor practice charge in this proceeding. Respon- dent Company denies that it has violated the Act as al- leged. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs of counsel, I make the following: FINDINGS OF FACT Ford Motor Company is an employer engaged in com- merce as alleged. Plant Protection Association National, Local 100, is a labor organization as alleged. The Com- pany and the Association are parties to a collective-bar- gaining agreement covering the Company's security guards. Charging Parties Siriani and West are security guard employees of the Company and are members of the Association. On or about March 1, 1978, Siriani and West filed a grievance pursuant to the collective-bargain- ing agreement protesting the Company's promotion poli- cies. (See G.C. Exh. 5, p. 1.)' Company Shift Supervisor Stanley Nietubicz rejected this grievance on behalf of the Company at its first stage. (See G.C. Exh. 5, p. 2.) The Association did not attempt to appeal or process this grievance to its next stage. However, as will be discussed below, Siriani and West continued to press their com- plaint and protest over the Company's promotion poli- cies. Summarized below is the testimony and related doc- umentary evidence of record pertaining to the grievance and ensuing protest by Siriani and West over the Compa- ny's promotion policies; the conduct of various company representatives in response to this grievance and protest; and the testimony and related documentary evidence of record pertaining to the Company's promotion policies and implementation thereof. A third employee, C. Maschot, also signed this grievance According to Siriani Maschot later dropped the grievance. A. Employees Siriani and West Pursue Their Protest, Company Manager Keller Meets With the Employees on April 15, 1978 Dennis Siriani testified that he has been employed by the Company for about 10 years; that he has been a secu- rity guard at the Rouge plant since October 1974; and that Jack Keller is the manager of his department. Siriani recalled that during late March 1978, following the re- jection of his grievance pertaining to the Company's pro- motion policies, Manager Keller asked, "if [he] could talk to him for a minute" privately. Siriani agreed. Ac- cording to Siriani: [Mr. Keller] asked me if I had any problems in the Company to keep them in the Company. He heard that I was on the outside of the Company and he was quite concerned.... [He] offered to go to World Headquarters, or to his boss, the IR man- ager, or anybody higher than him if I wanted to, and see if I could resolve this, but keep it within the Ford Motor Company. Siriani recalled a second conversation with Manager Keller on or about April 5, 1978, in Keller's office. Sir- iani testified: Douglas West and myself wanted to go up and talk to Mr. Keller. We arranged it on that date to go up and see his secretary and tell him we wanted to talk to him. Well, we went in and Douglas West asked Mr. Keller what did it take to be a security supervisor. Mr. Keller replied that they have certain board of management people that conduct-they sit down and talk who they think should be promoted, and there are certain things that you get promoted by. One was apprehensions, how much court time you have as a guard, absenteeism, and your attendance record, and he went on and he said that he didn't have the only judging at that time, that his shift su- pervisors, as well as the supervisors under him, had a great deal to say on who was to be promoted. At that time we were going to get up and leave after we heard what he had to say, and he stood up and he was becoming angry, and threw a pencil on the desk and said, "God damn it, I want to know what you two people are up to." We sat back down and he told us that he heard rumors that we are going to sue the Ford Motor Company. We re- sponded that we didn't verify that at the time and . . . [he] said that we had caused so much turmoil within his guard section and the morale of the de- partment was down because of us two people, and at that time he asked us again, "are you going to sue Ford Motor Company?" He said that people who put lawsuits into the Ford Motor Company are not looked upon favorably, and at that time there was-there was-well, the conversation about ended, and he said, "I wasn't going to promote you two anyway." FO)RD MO) CMP~ANY 415 Douglas West testified that he has been employed by the Company for about 7 years; that he is a security guard at the Rouge plant; that Keller heads his depart- ment; and that he, with coworker Siriani, filed a griev- ance protesting the Company's promotion policies. The grievance, as noted, was rejected at the first stage. Thereafter, West and Siriani, without success, attempted to persuade the Association to appeal the grievance. West also consulted private counsel and coworkers con- cerning the subject of the grievance. West "asked" his coworkers "if they would come down and be a witness for" him "to see if we can get a labor charge against Ford." Later, on or about April 5, 1978, West attended the meeting with coworker Siriani in Manager Keller's office. West related what happened at the meeting, as follows: Myself and Dennis went to Mr. Keller, and he in- vited us into his office and we sat down, arid I asked Mr. Keller, we wanted to be promoted, and Mr. Keller told me that he had heard through rumors that myself and Dennis were suing the Ford Motor Company, him, and the Union, and he asked me to confirm that. I said, I don't know what you are talking about, and then he said to me that there were certain qualifications that they look for in a person before they are promoted, and he gave us an example, neatness, absenteeism, and college, which he used the figures as accountable for ten percent of the final decision, our past work record, and that we possessed none of these. Myself and Dennis was not management material, and he said to me that there is no way that I am going to promote you two fucking boys, and he also said that we had cre- ated turmoil in his department, all the way from the Rouge plant up to R & E and all the way up to staff security, and he increasingly got mad. He got up from the table, and he pounded on the table and he said, damn it, I want to know what you are up to, and I made a joke of it by saying I am up to about five foot eleven, and he asked me, he said, well, I wasn't going to promote you two fucking boys anyway. He offered us a cigar, and he made a little joke about something and I can't recall the joke, but after the joke he told me, he said, that Ford does not look favorably upon people who sue them and as far as he was concerned, that myself and Dennis was not going to be promoted, and we were going nowhere in the Ford Motor Company. Jack Keller testified that he is employed by the Com- pany as manager of its fire, safety, and security depart- ment. Keller recalled the above meeting with employees Siriani and West on or about April 5, in part as follows: They asked what it took to get promoted which I just described. They then said that they had no in- terest in a rotation or clerical kind of assignment; they wanted to be supervisors right then. This discussion went on probably 30 or 40 min- utes and we went over the same material, over and over and in different ways. They felt that they were more qualified than anybody we had; there was no merit in being a clerk. I made an inquiry based on a rumor that I had heard that they were going to, one or both of them, going to sue us. I asked if they awere. I heard this rumor and it was causing some disturbance among people 'cho had asked about it. Mr. West replied, "sue who. I don't know any sue." The point was made several times that they wanted to be supervisors and wanted to be supervisors right then. I indicated I was not going to make them su- pervisors then, and that perhaps there were people in line ahead of them. Keller denied, inter alia, that he told West and Siriani that "they would never be supervisors." I credit the above testimony of Siriani and West. They impressed me as trustworthy and reliable witnesses. Their testimony is in significant part mutually corrobora- tive and is also substantiated in part by the testimony of Keller. Their testimony, as recited above, withstood ex- tensive cross-examination. Keller, on the other hand, did not impress me as a forthright and candid witness. His testimony (as discussed in sec. D inia) \,as at times vague and unclear. I am persuaded here that Keller, an- gered by the grievance and related activities of Siriani and West, made the statements and engaged in the con- duct attributed to him by Siriani and West. B. Supervisor Thomas Wooldridge v Warning to Employvee Siriani on April 6. 1978 Siriani recalled that on April 6, 1978, the day follow- ing his meeting with Keller, as recited supra, he had the following conversation with Supervisor Thomas Wool- dridge in the presence of Supervisor Stanley Nietubicz: Thomas Wooldridge asked me how everything was going, and I replied so-so, and he asked me- Thomas Wooldridge asked me if I could take my promotion problem to the Union. I told him that I did, and he said, well, why don't you take it to the National. I said I couldn't because it was stopped at a local level. He then replied that with all the power of the Ford Motor Company and all the at- torneys that they had, that we could end up getting ourselves fired. At that time, Mr. Nietubicz became very angry and . . told Wooldridge, "don't say nothing else," and Mr. Nietubicz sent me home. Shift Supervisor Stanley Nietubicz recalled the above incident, in part, as follows: [Wooldridge] had told Mr. Siriani that he should not have filed the grievance. Mr. Siriani responded by saying, I have every right to file a grievance as I have been deprived in promotions and so forth. Wooldridge then responded by saying, the Compa- ny has a lot of legal people who are intelligent, and they have ways of getting rid of people. At this time, I injected myself and stated to him that this is FORD MOTOR COMANY 415 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not true, that if a man does his job, the Company does not do this. At this time, I instructed both people to discontinue the discussion. Supervisor Thomas Wooldridge recalled the above in- cident, in part, as follows: Well, I just indicated that-I kind of asked it as a question, I says, well, how do you feel about Ford's legal might, their sophisticated system of legal people. I thought that we have a good group of lawyers. And-that-how they felt about having to contend with this? Wooldridge denied, inter alia, telling Siriani "that he should not be filing suits against the Ford Motor Compa- ny" that "if he filed such suits he would not get promot- ed": or that the "Company would have ways of seeing that he would be discharged." Wooldridge, however, ac- knowledged asking, "Mr. Siriani if he thought the Com- pany would have any recourse against him during any proceeding." Wooldridge claimed that this statement was intended to "mean" special consideration being that they had some grievance going." In addition, West recalled that on or about this same day, April 6, Supervisor Mervin Darr asked: [West], do I know the reason why the morale was so low, and I told him I felt it was because of the promotion policy that was involved, and the way people deserved promotions and are not getting them, and he asked me . . . what about your law- suit, and I said, I am not going to talk to anybody about anything about that, and Mr. Darr said . . . come on you can tell me, and I said, I am not going to talk to anyone about any lawsuit. Darr "left." Supervisor Mervin Darr denied, inter alia, asking West "anything about lawsuits" during his "conversation" with the employee on or about April 6. Darr, however, acknowledged discussing "career development" with West on or about that day; West criticized the Compa- ny's "hiring practices"; and "there were some type of re- flection made by Mr. West of some type of action being taken .... " Darr also acknowledged: "I heard some rumors of some type of suit. It may have been early in April. It could have been late in April. I'm unsure. It was sometime after the grievance."2 Supervisor Nietubicz also testified that prior to March 1, 1978 (when the above grievance was filed), he had recommended both West and Siriani for promotion to su- pervisor. His recommendations, as discussed below, were turned down. Supervisor Nietubicz recalled that during March 1978 he again recommended West and Siriani for promotion to supervisor. Supervisor Nietubicz, as he fur- ther testified, was told about this same time by his super- visor, Jerry Roddewig, that "Siriani had to learn to keep his mouth shut." Supervisor Roddewig denied, inter alia, 2 Counsel does not allege that this April Darr-West lcidcelt vsolated the National Lahbor Relations Act The ab(oe testimony was receiNd for h;ackground purposes only making such a statement. Roddewig, however, acknowl- edged that: [In a] conversation . . . that I had with Siriani in February, where I heard that he was unhappy, I asked him if he were making comments . . . about our policy to other security people. And he agreed that there were some discussions of our security- promotion practices. And, I suggested that if he were not to be in such a hurry for promotion, and I don't remember again the words, but to calm down. The consideration was near, or something of that order, for promotion opportunities. I credit the above testimony of Siriani with reference to his conversation with Supervisor Wooldridge on or about April 6, 1978. Siriani's testimony is substantiated in significant part by the testimony of Shift Supervisor Nie- tubicz who also impressed me as a trustworthy and reli- able witness. Supervisor Wooldridge, on the other hand, did not impress me as a credible witness. His testimony was at times evasive and vague. I note that Wooldridge admitted referring Siriani during the above conversation to "Ford's legal might" and possible "recourse" against the employee. In addition, I credit West's testimony with reference to his conversation with Supervisor Darr on or about this same day. Although Supervisor Darr generally denied referring to "anything about lawsuits" during his conver- sation with the employee, Darr acknowledged that he discussed "career development" with the employee; that the employee criticized the Company's "hiring prac- tices"; and the employee mentioned "some type of action being taken." Darr also acknowledged hearing "rumors of some type of suit." I was not impressed with the testi- mony of Supervisor Darr in this and other respects, as will be discussed further below. Further, I credit the testimony of Supervisor Nietubicz that he recommended both Siriani and West for promo- tion before and after the filing of their grievance in March 1978. I am also persuaded here that Supervisor Roddewig apprised Supervisor Nietubicz that "Siriani had to learn to keep his mouth shut." Although Supervi- sor Roddewig denied making such a statement he did ac- knowledge discussing with Siriani the employee's "com- ments about policy" and "suggested" that the employee "calm down." On this record, Nietubicz impressed me as a more reliable, candid, and credible witness than Super- visor Roddewig. I note that Supervisor Nietubicz and Supervisor Brady, whose testimony is more fully discussed below in section D, have retained counsel for Charging Parties in connection with their pending complaint against Ford before the Michigan Civil Rights Commission. Their complaint is based on alleged age discrimination and they are undeniably displeased with the Employer's pro- motion policies. Nevertheless, on the entire record in this proceeding, including the demeanor of the witnesses, I am persuaded that Supervisors Nietubicz and Brady, long-time employees of Ford, have credibly testified in this proceeding. FORD MOR COMPANY 4 1 7 C. Supervisor Alan Dudek L Statements to Emplovee Weston November 22, 1978 Employee West testified that on or about November 22, 1978, Supervisor Alan Dudek approached him at work and had the following conversation: Mr. Dudek came up inside the shelter, and he asked me how come I hadn't been checking cars, that he had been watching me since the beginning of the shift, and he knew of times that I didn't have my hat on, and he knew what time I went on my break. he knew what time I went across the street to get a drink of water at [gate] 10-center because there is no water at [gate] 10-south, and that if I would stop concentrating on losing lawsuits and spending money on attorneys, that I might go somewhere in the Ford Motor Company. I told him he doesn't know what he is talking about. He replied to me, we will see if I don't know what I am talking about, and that is all that was said. West acknowledged that he had not been stopping and checking cars. He explained the "reason" as follows: Because, if you know gate 10-south, that particular time, those people, they open up the gates at 6 p.m. and the people go on breaks and they go on lunch, and they go in and out, in and out, and if you are not watching yourself, you will get run over very easily. There is no traffic light, and no stop [sign], there are no anything. There is two lane traffic, that is enough to get one lane by, one car by. Shift Supervisor Alan Dudek denied, inter alia, that he had "harrassed employee West on November 22" for his filing a charge with the NLRB. Dudek claimed that on that day "I had observed some deficiencies in Mr. West's performance"; "he was seated and out of uniform"; he "was not wearing his hat at the particular time"; later, "the guard shelter . . . was abandoned" and West was observed "50 to 60 feet away from it conversing with an unknown fireman at the time"; and, later, "10-south gate" was "abandoned" and West was "seated in 10- center gate." Dudek recalled that he "confronted guard West" by "first off complimentling] him on how nicely he looked, clean, [and] shaved." Dudek assertedly faulted West for, inter alia, not conducting and recording "vehi- cle spot checks." West assertedly replied: "[l]t was a waste of his time." Dudek also faulted West for "aban- doning . . . the post [and] his failure to be in full uni- form." West assertedly replied that "Dudek" was has- sling him." Dudek denied, inter alia, making various statements which were attributed to him by West, as quoted above. However, Dudek acknowledged stating to West, in part, that "if he [West] would have complied with Management in the past [he] probably wouldn't be in the position he is in today." Dudek claimed that he "meant" by the above statement that "if [West] would have taken the indicator from Management . . . educa- tion or pursuance of education, was something that he should forsee as being a route to travel tosards a possi- ble promotion, that he should have taken it as a strong indicator." Dudek acknowledged, however, that he did not "explain" his statement to West. Elsewhere. Dudek testified: I said, Doug [West], if you would have been \xilling to comply with Management in the past, you proh- ably won't be in the position you are today--in ref- erence again to my referring to Management's deci- sion as far as spot checking vehicles . . Dudek did not "believe" that he mentioned "a lawsuit" in the above "conversation." West admittedly was not given a "write-up" for this incident. I credit the testimony of employee West as recited above. Supervisor Dudek's testimony was at times e a- sive, contradictory, and unclear. He did not impress me as a trustworthy witness. I am persuaded here that he made the statements and engaged in the conduct on or about November 22, 1978, as related by West. D. The Companys Promotion Policies and Implementation Thereof As stated, the unfair labor practice charge in this case was filed by Siriani and West on May 3, 1978. There- after, during June 1978, the Company promoted Ann Luyckx and Terry Murphy to available supervisory guard positions at its Research and Engineering Center and at its World Headquarters Building, respectively. (See G.C. Exh. 7.) Later, during November 1978, the Company promoted James Ash and Chris Carter to available supervisory guard positions at its Rouge plant and Research and Engineering Center, respectively. (See G.C. Exh. 6.) Siriani testified that he joined the Compa- ny's guard unit in 1974 and that he has more seniority and experience than the above employees who were pro- moted, except for Carter who "came in the department approximately 2 weeks before" Siriani. West also testi- fied that he joined the guard unit in 1972 and that he too has more seniority and experience than the above em- ployees who were promoted to supervisory positions. Shift Supervisor Nietubicz testified, based on his obser- vations of the work of employees Luyckx and Siriani. that: [There] is no comparison. Dennis Siriani is totally qualified in every area. He has been assigned the training of Ms. Luyckx and guard personnel in the office area, and he is excellent in responding, he is excellent in initiating incidents in regards to narcot- ics, thefts . . . and also excellent in the office. N1 Luyckx was average in the office, was average as a guard, and hardly had any experience or in. olve- ment in these areas throughout the plant in her time with me. Shift Supervisor Nietubicz similarly testified that em- ployee West also "would be above her [s. Luyckx] in qualifications." Likewise. Shift Supervisor Nietubicz rated employees Sirani and West more qualified for pro- motion than employees Ash and Carter. Shift Super\,isor NietubicZ had recommended both West and Siriani for FORD MOTOR COMPANY 4t 418 I)DE-CISIO)N S ()F NATIONA. IAB()OR RELATI()NS O()ARI) promotion before and after March 1, 1978X, and upper Management had turned down his recommendation. Supervisor Francis Brady testified that he has worked for tihe Company in the security department for about 28 years; that he has been a supervisor for about 5 years; that employees Siriani arnd West have worked under his supervision; and that both Siriani and West are qualified to be supervisory personnel. Supervisor Brady also testi- fied that, based on his observations of the work of em- ployees Siriani, West. Carter, aid Luyckx, he considered both Siriani and West qualified for promotion to the available supervisory positions; that he had recommend- ed Siriani for promotion prior to March I, 1978X; and that he had recommended both West and Siriani for promo- tion after March I. 1978. In addition, Supervisor Brady related the following in- cident: I was asked the last part of October of 1978 by my shift supervisor, Mervin Darr, to make a list of po- tential candidates for either clerks or supervision, and he gave me the guard card index system so I would go through all the guards in our area, and I went through and I made this list and I started off with guard Siriani. guard West and there were a total of seven all together. I returned this list in the privacy of the section supervisor's office to my shift supervisor there [Darr] did state to me that the first two, meaning Siriani and West, would not be able to stay on the list, because of this action taking place here today. Here, because of a claim with the National Labor Board, I suppose. Supervisor Brady explained: "Because of [the] Siriani and West complaint to the National l.abor Relations Board, I took it to mean they were taken off the list. In other words, they were to be discounted." Supervisor Mervin Darr acknowledged that he had re- ceived a proposed promotion list (C.P. Exh. 1), from Brady about October 1978. Darr denied, inter alia, telling "Mr. Brady that Mr. West and Mr. Siriani's names could not stay on the list of p-omotion candidates because they filed charges with the Board." Darr claimed that Brady "brought uLp the subject and I [Darr] deferred it." Darr testified: He [Brady] said, if you'll note that the two top names on the list may not be taken kindly, I think were the terms, upstairs . . . And my comment to him was that if these are the people that you wish to submit, we'll submit them on their merits. Shift Supervisor Nietubicz has been employed by Ford for about 38 years. He acknowledged that he has been displeased with the promotion policies in his section. He noted that "a fair number of people" are "upset because of the way Mr. Keller promoted people." He admittedly "contacted" and is represented by counsel for the Charg- ing Parties concerning his personal complaint over the promotion policies and presently has a complaint pend- ing with the Michigan Civil Rights Commission claiming age discrimination. On cross-examination by counsel for the Company, Nietubicz testified, in part, as follows: Q. So, you are very unhappy with the Compa- ny's method of promoting people? Is that correct? A. No, you are wrong. I am not unhappy with the Company. The Company has been real good to me for 38 years. I am unhappy with some parts of Management. Q. Are you unhappy with Mr. Keller'? A. On occasions I have been, yes. Q. Are you unhappy with his way of promoting people? A. ()n the basis of-some of them have been very unfair, yes. Q. You are upset with him? A. I wouldn't say upset. The thing is, they don't follow my line because I am a great believer that people that get promoted should get this through being deserving in the performance of doing some- thing for the Company. Supervisor Brady similarly acknowledged that he too has contacted and is represented by counsel for Charging Parties in his age discrimination case against Ford pend- ing with the State Civil Rights Commission. Jack Keller, manager of the Employer's fire, safety, and security section, testified that, "when considering an individual for promotion," the following "factors are considered:" [T]he personal observation of the shift supervisor, the area supervisor, the section supervisor and myself; probably comments we get from outside the department, commendations for some individuals; education will be considered; the man's demonstrat- ed performance; .. . the recommendations of the supervisors up and down the line, their comments; the needs of the job. Keller also noted that the "demands of the job, the time, the opportunities, may cause you to deviate and to have to put [in] a person that is not fully qualified. You [take] the best of the persons that are qualified at that time to do the job." Keller claimed that he makes the "final de- cision on promotions," "with the concurrence of salaried personnel . . . in consort with [his] senior supervisors. " a' Manager Keller further testified that Siriani and West were not promoted in June or November 1978 because "there were other more qualified candidates at that time"-"they were not considered the best at that time of the qualified candidates." Keller agreed that both Sir- iani and West were considered for these promotions. Keller claimed that the filing of the "grievance" and unfair labor practice charge in this case had no effect on . %r1t OC c III l't l lllTI . i T RIII ll ICtCla. Astltri.l l , l Ihc .l[ p I . NI ' I% llIillC Il pl ll 1 I .I* 1-i, tl It l eI 1 oc, II ttII .l ,I I I . -t ll II]C NPe ila llJ , <il d t , Iilel tl.l 5 l lll llt I ll rc ttl , Th n 1, ll l] n , i ttix. slt tiou do--I T ll \ tIhlC rfete fl .,k'[ iIl ltr .11 of tilt %c 1111~. it ;1 ld ,o tt.! dcp; ltIlltilt p)rltl ll an~. L'"i ICl }3t'lI g Ikll ',t;s "r\i'\tt'." t' ll11t)1111 1l% 1t rrt1·'d ttl ahll," :Illlt, "apro',t'd 11tt'Ill" FOR MIOR) COMPNY 419 their failure to be promoted. Keller testified: "It wasn't discussed at all among the candidates." Manager Keller generally reviewed in his testimony the qualifications of those persons who were promoted instead of Siriani and West during 1978. Keller explained why he regarded Ash as "more qualified," noting, inter alia, Ash's participation in "rotational assignments" and "education" background. Keller explained why he re- garded Carter as "more qualified," noting, inter ala. Carter's participation in "rotational assignments," "edu- cation," and experience background. Keller explained why he considered Luyckx "the best qualified at the moment" of her promotion. Keller cited, inter alia, "her demonstrated performance," "educational background," and different assignments. Keller noted that Murphy was not in fact promoted, as claimed, but was instead in- volved in "a lateral move" with no pay increase. Keller, however, acknowledged that Murphy was transferred from a nonsupervisory position to a supervisory position at the time. Keller also reviewed in his testimony Mur- phy's "educational background" and work experience. Keller testified that he regarded Murphy as "the best at the time" for the available supervisory position.4 Supervisor Jerry Roddewig testified that, based on his observations, Luyckx was "excellent" in the performance of her assignment; that Murphy's "performance" was also "excellent"; and that he had recommended their promotions to Manager Keller. Roddewig testified, at one point, "I don't believe I have recommended" either Siriani or West for a promotion. Roddewig claimed that "in the past" West "didn't appear totally well dressed" because his "uniform was wrinkled" and he "had a beard that he grew for the deer season in "77 . . . and the beard stayed for awhile." Roddewig concluded: "I don't feel that Mr. West [or] Mr. Siriani were as well qualified as either Terry Murphy or Ann Luyckx." Roddewig. however, admitted telling Siriani during October 1977: "to continue to do the job that I had seen him do, which was a good one; to continue with his education; and that opportunities for his promotion would very probably come along as time passed." Roddewig also admittedly made similar statements to Siriani during February 1978-before the June and November promotions recited above. Roddewig coulo not "recall" discussing promo- tions with West. Roddewig left the Rouge section during late March 1978. Further, Roddewig also acknowledged: 4 Manager Keller acknowledged that-in dilrcusing with Srlia durinig April 1978 the factors conlidered h ManlIragenienl in promoting gualrdl he "nlight hi;l, said" (t Slrl.rli hat education "a. a small part Kellir recalled telling Slrianli bout Itis anir trine: "D)ennls. ou kno. !isi Ire doing a good lob. lou are going It school, keep doing it. and I think ilu uwill achice youlr iohJeitl.es" Keller also acknoLwledged that guards haXs been promott d in the pt ithout aking so-called rotational a.ssrignmelit, and Ihthat all clonct" where the Emplsoyer has guards "ill cnouiI alrt eentllall',hen the sa t gs hen cre to the plice p actl 11 In addilioll, Keller clI.iiied that "each time a positilon heconle s .zsitl[. [hel c iiiser[Tl e cery guard" and "every clerk Keller ;ller added hal he conlidier the prtrllotiolo qalilties of his guards and clerk "prohahl once a vkeek e\cri it no pronlotion aire iaiiblCa e Ksler ilexi note l thiii he periodicall\ FLrLCIse r c orllretIl. riem %upcr , oper, C( cril ng ,uch pronttllll, "Srle" r'cl,ninlendall~uiis ire "oral" Keller, he pressed i eplrirl specitc siper isor nIetuilgs wltre protlll ti , erte dlscussed, becamtlne stig (c rl I iUnclear in hi tlestilolln Al 1ei point ihe claimed: "l'm n iot pri\ o i 11ll the mietllng s id dls ss11olirts tlihe ht hefre t lhe or l. oi is d .i 'i rllt On the functions that I had seen [Siriani] do, if there were such a thing as performance rating for guards, I would have rated him as excellent. ' Supervisor Donald McCall testified that, based on his observations, he regarded Luyckx, Murphy, Carter, and Ash as more qualified for promotion than either West or Siriani. McCall acknowledged that both Luyckx and Carter only worked for him "for a few weeks" and that Ash only worked for him "for a few months." McCall testified that during mid or late April 1978., in the park- ing lot at the Rouge plant, West revealed to him West's "hate" for Keller; that McCall then offered "to help" West; and that West explained that "he wanted to be transferred to a Ford plant" in Atlanta but "the suit has already been filed." McCall attributed to West the fol- lowing statement: It all could have been avoided. I don't really give a damn about a promotion, but I wanted to keep my seniority and move to the location to be there with my mother and father who are ailing .... He mentioned Mr. Siriani and he said initially that is who filed the suit, and then I believe hesitantly he added Mr. Nietubicz' name, but that was the end of the conversation. McCall related this to Keller and "tried to do some- thing" for West.fi Ann Luyckx testified that she was made a supervisor during June 1978. She related her educational back- ground and various assignments with the Employer. She recalled that Siriani had complained about Keller's pro- motion policies "from October 1977 on until they filed the allegations with the NLRB." She claimed that Siriani got "direction on where to take this thing" from Shift Supervisor Nietubicz. She testified: He [Siriani] said that they were going to make Keller account for himself, and he stated to me. when I asked him why, he told me that Mr. Nietu- bicz wanted to have Keller fired. She also claimed that Siriani had revealed to her that "Mr. Nietubicz . . . told him to" record a conversation with Supervisor Roddewig "for a later date." She noted that Siriani "was one of the many people that trained her." She asserted that "Mr. Nietubicz was somewhat of a father figure over Dennis [Siriani]--always watching over him." She testified: [Nietubicz] was always looking out for [Siriani], making sure that he was instructing [Siriani] to- wards doing a good job, and always sort of hover- ing over him and letting everyone know that he Superxsliot I),rr .lso t tifietdtl lbit I felt lill r Siris, shouild he tlsill rCi d tf;r . no . I;lr .i tI 1.rl Illo e .a priorllltltn t I . Clerl.lc l Ipe pt's.. tll " )Darr leu itdded lite [Slrlll sltlsl S.e tIntIerlctud sotl g kito the other ptpl " ' W.stl a.kolledged Ihll 'I l Nir kntlc.all Iha I hidt i,sked for tranrstcr and tlhat I hatii'l l it'id althi l ll Al agtreed d. . [as l I ,s sin,\1 1 Ii k .. t .l " t \ s i t '[k..'d % il 'ilg ,kI( ill liant l h.lcd K ellsi FORt) MOOR COMPAN 4lq. 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was the number one guard on the shift, and the best. She added: "Mr. Nietubicz did not believe that women should be in security. Therefore, that didn't make it easy for me to fit in at all. " 7 I credit the testimony of Supervisor Brady, as quoted above, pertaining to his meeting with Supervisor Darr during October 1978. It is undisputed that Brady then recommended both Siriani and West for promotion and that Brady had placed their names on the top of his pro- posed promotion list. It is also undisputed that the possi- ble reaction of upper management to the proposed pro- motion of Siriani and West was mentioned at this meet- ing. Supervisor Brady claims that Darr apprised him that the names of Siriani and West "could not stay on the list" because "they had filed charges." Supervisor Darr claims that Brady "brought up the subject" and Darr "deferred it." I do not credit Supervisor Darr's assertion to the effect that he simply stated, "we'll submit them on the merits." I note that previously Supervisor Darr had attempted without success to question West as to "why the morale was so low" and about his "lawsuit" pertain- ing to the Employer's promotion policies. I also note that Darr acknowledged that "there has been conversa- tion" between him and Manager Keller regarding the unfair labor practice charge in this case; however, Darr claimed: "I don't recall any particular conversation." Later, Darr claimed: "I don't believe we had an in depth conversation regarding it." In sum, on this record, I find and conclude that the testimony of Supervisor Brady is more accurate and reliable than the testimony of Super- visor Darr. Manager Keller testified that Siriani and West were not promoted in June and November 1978 to available supervisory vacancies because "there were other more qualified candidates at that time." Also see the testimony of Supervisors Roddewig, Darr, and McCall, as summa- rized supra. On the other hand, Siriani and West claimed that they were better qualified for such promotions. Su- 7 Virginia Pellegrini testified that she is 24 years old: hal she had worked for an employer as a waitress and supervisor in its food serv ice; that she was employed by Ford as a security guard in June 1976 and that she "was promoted to clerk" about a year and a half later Pellegrilni claimed, inter ahi. that West had revealed Io her that Supervisor Nietu- bicz "had given him a lot of information " Pellegrini also claimed that West had revealed to her that he and Supervisor Nietubic "ere meet- ing to discuss ifiormalion about the whole thing, about the illnformation" She also claimed that Supervisor Nietubicz had disclosed to her. with ref- erence to Manager Keller, "he was going toI get the son of a hitch" Pcl- legrini's father is the architect-manager fior Ford and her "proolltion." as she also testified. was the subject oIf critical comment by Nieluhicz and Siriani. Pellegrini testified she had stated to Siriani I had gotten this promotion on my own. I desersed it arid my father had nothing to do with my promotion or anrybod else. Supervisor Nietubicz denied "any involemenlt in the filing of the above grievance and related matters West similarly denied meetlig with Supervisor Nietubicz prior to filing the grievance "concerilig gathering information." West also denied telling Pellegrii "that Nietubic as gathering information for [themn." West explained: "I have ever met Mr. Nietubicz outside of Ford Motlor Companly proipertly or been "as sisted" by him "in any uay" with respect to the griesanlce Slriani intli- larly denied discussing the grievance with Nitelubicz prior o it s filing. ir asking him "to collect infirmation." or being "assisted ill ally way" h him. Supervisor IBrady also denied "assisting" Sirialll and ' West i this matter pervisors Nietubicz and Brady agreed. As discussed below, I find and conclude on this record that manage- ment made the coercive statements and engaged in the coercive conduct attributed to them because Siriani and West were pursuing their grievance and had filed an unfair labor practice charge against the Employer. And, as further discussed below, I find and conclude that the real reason why management refused and declined to promote Siriani and West to available supervisory vacan- cies was their grievance and charge-filing activities. Fur- ther, I do not credit the general assertions of manage- ment (see, e.g., the testimony of Luyckx, Pellegrini, and McCall, above) which in effect attributes to Siriani, West, Nietubicz, and Brady some ulterior or improper motive or collaboration in attempting to remedy their complaints about Ford's promotion policies. I am per- suaded here, as stated, that Siriani, West, Nietubicz, and Brady have credibly related what transpired during the above sequence of events. 8 There remains for resolution a credibility conflict con- cerning how certain markings were placed on C.P. Exh. I-Brady's proposed promotion list. There is no dispute that Brady submitted this list to Darr and that the names of Siriani and West were placed on top of the list. There is a dispute as to how certain horizontal marks were placed next to the names of Siriani and West. The list was identified by Brady on examination by counsel for Charging Parties. Brady explained that he did not place the "stroke marks beside Siriani and West." On voir dire examination by counsel for Respondent, Brady testified that he had "no idea who put those on there." Charging Party Exhibit I was then received into evidence without objection. Thereafter, Manager Keller, during Respon- dent's case, testified: Q. Sir, I hand you Charging Party's Exhibit No. 1. A. Yes. Q. That has been identified as the recommenda- tions of Mr. Brady for the promotions that were filled sometime in November. Could you explain why there are some horizontal lines on that? A. Mr. Trupiano [a representative of manage- ment] handed this over to the desk when it was pointed out that this list was not going to be to me or passed him or passed Trupiano. Mr. Trupiano handed it to me and I just put two checks and handed it to you that they were on the list that was considered. Q. You said check? A. Some straight lines here yesterday at the table. Q. Are these the same horizontal lines that you understand Mr. Acho referred to? A. I don't see any other lines. I don't know what these little lines are here. Q. But you did put the horizontal lines? 11 particulalr. I di not credit Sipervlsor McCall's .ssertion that em- ploce \X;csi revealed tt hin hat liea "atlied" Kcller Nor d I credit the related ;assertillons h l.u)ckx aud I'cllegrilli to the effect Ihalt West Sirilani. and Nietubic/ disclosed ( t eCni lthal 's. Sirtilla. and Nletubicz had improp er Inlotlses 1t purpo'ses or crc in %tL e i nr proper maTiner col- lahoralinlg hterC FORD MOTOR COMPANYI 421 A. I just put these here and passed it to you yes- terday. Q. When you say these here would you tell me what these here are? A. After D. Siriani I drew a straight line and after D. West I drew a straight line and handed it to you. Supervisor Darr, during his testimony, was not ques- tioned about the markings on this list. Later, during re- buttal, Supervisor Brady was recalled and testified: I recall quite clearly that when I was invited into the section supervisor's office by Mr. Darr, he asked and I presented this list. He had a pencil in his hand, and he ticked Siriani and he ticked West and he said, these two will not qualify because of this National Labor Board complaint, and I recall that quite distinctly. Thereafter, counsel for Respondent, Theodore Miloch, took the witness stand and testified: [D]uring the course of the proceedings this week and specifically I believe on January 24th, I ob- served Mr. Jack Keller place the horizontal lines next to Mr. Siriani and Mr. West's name on what has been identified as Charging Party's Exhibit No. i. He did this while he was seated next to me at the counsel table with a pencil that was laying on the counsel table. I personally observed Mr. Keller put these horizontal lines on this exhibit during the course of these proceedings. Miloch further testified: Q. (By Mr. Acho) Mr. Miloch, can you testify unequivocally that there were no markings on that card next to Mr. Siriani and Mr. West's name prior to be handed to you? A. There are two markings on the card next to their names, and I would like to look at it again if I could, Your Honor. THE WITNESS: There are what I will call and identify as check marks. They are faint. All of them are faint. Next to the name of Mr. Siriani and Mr. West, Mr. Engel, and Mr. Zahari, and there is what looks like a period or a dot next to the name of Mr. Schiazi. Those marks were there to the best of my knowledge when that card was placed on the coun- sel table. Q. (By Mr. Acho) You could be mistaken, isn't that correct? A. No, sir. Q. Sir, isn't it a fact that the check mark behind Mr. West's name is just about all but erased? Isn't that true? A. I see no erasure marks, sir. It is a faint check mark, I am not an expert on this. Q. It is more faint than all the others, isn't it sir? A. Well, I think the document speaks for itelf. I find and conclude that Supervisor Brady, on rebuttal, credibly recalled that Supervisor Darr "ticked Siriani and he ticked West and he said, these two will not quali- fy because of the NLRB complaint." Brady's recollec- tion comports with his earlier explanation of this meet- ing. Manager Keller, although explaining that he placed marks next to the names of Siriani and West at the coun- sel table, does not explain other markings, some "faint" and possibly partially erased. Keller claimed: "I don't see any other lines. I don't know what these little lines are here." Likewise, Miloch does not explain how or in what manner "faint" and possibly erased check marks were placed on this list after one or more of the employees' names. Under all the circumstances, I credit Brady's tes- timony as quoted above. Discussion Section 7 of the National Labor Relations Act pro- vides that employees "shall have the right to self-organi- zation, to form, join, or assist labor organizations, to bar- gain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." Section 8(a)(1) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7." Section 8(a)(3) of the Act in turn bars employer "discrimination in regard to hire or tenure of employment or any term or condition of em- ployment to encourage or discourage membership in any labor organization." And, Section 8(a)(4) of the Act for- bids an employer "to discharge or otherwise discriminate against an employee because he has filed charges . . . under the Act." The presentation by employees of a grievance pursu- ant to the terms of a collective-bargaining agreement comes within the protection of Section 7 of the Act. As the Sixth Circuit stated in N.L.R.B. v. Halsey W. Taylor Company, 342 F.2d 406, 408 (6th Cir. 1965): We are not concerned in this case with the merit or lack of merit of [the employee's] grievance. But it is clear that Sec. 7 protects his right to utter it as a matter of concerted activity with other employees for mutual aid. And, as the Second Circuit explained in N.L.R.B. v. In- terboro Contractors, Inc., 388 F.2d 495, 500 (2d Cir. 1967): [T]he Board need not find the complaints to be meritorious in order to hold the activity protected, but the fact that the complaints were apparently reasonable does support the conclusion that they were made for legitimate union purposes and were not fabricated for personal motives. [Cf. Aro, Inc. v. N.L.R.B, 596 F.2d 713, 716-718 (6th Cir. 1979).] It has also been held "that the filing of a civil action by a group of employees is protected activity unless done with malice or in bad faith." Cf. Trinity Trucking & Materials Corp., 221 NLRB 364, 365 (1975). The Board explained in Trinity Trucking, supra, "If the lawsuit is filed in good faith, the fact that it may have been groundless or that it was later dismissed on its pleadings, FORD MOTOR COMPANY 421 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would not in itself make the activity unprotected or es- tablish bad faith." Likewise, employee "utilization of the Board's remedial processes" is protected by Section 7 of the Act. Cf. N.L.R.B. v. Local 294. International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 470 F.2d 57, 60-61 (2d Cir. 1972). For, a "healthy interplay of the forces governed and protected by the Act means that there should be as great a free- dom to ask the Board for relief as there is to petition any other department of government for a redress of griev- ances." Cf. N.L.R.B. v. Industrial Union, of Maine & Shipbuilding Workers of America, AFL-CIO, et al., 391 U.S. 418, 424 (1968). 9 Moreover, employees who file such grievances, civil suits, or unfair labor practice charges do not lose the protection of Section 7 because they are, as in the instant case, protesting an employer's promotion policies. As the Second Circuit held in N.L.R.B. v. Bell Aircraft Corp., 206 F.2d 235, 237 (2d Cir. 1953), the employee's "pros- pects for promotion were among the conditions of his employment"; the Act "protected him so long as he held a nonsupervisory position"; and it is immaterial that the protection thereby afforded was calculated to enable him to obtain a position in which he would no longer be pro- tected." Also see Marmon Transmotive, 219 NLRB 102 (1975), enfd. in part 551 F.2d 733 (6th Cir. 1977); Ann Lee Sportswear, Inc., 220 NLRB 982 (1975), enfd. 543 F.2d 739 (10th Cir. 1976); Little Lake Industries, 233 NLRB 1049 (1977). Cf. Aro, Inc. v. N.L.R.B., supra. The credited evidence of record, as summarized supra, shows that on or about March 1, 1978, employees Siriani and West filed a grievance under the Union's collective- bargaining agreement protesting the Employer's promo- tion policies. The Union presented this grievance to the Employer at step-one of the contract grievance proce- dure. The Employer rejected the grievance, claiming that "all promotions referred to in the grievance were to excluded positions." (See G.C. Exh. 10, p. 2.) Employees Siriani and West subsequently attempted, without suc- cess, to get the Union to appeal the grievance to its next step. Siriani and West contacted private counsel in an effort to pursue their complaint over management's pro- motion policies. Employee West, as he credibly recalled, asked coworkers "if they would come down and be a witness for" him "to see if we can get a labor charge against Ford." Thereafter, during late March, Manager Keller ap- proached employee Siriani at work and apprised the em- ployee: "[I]f [Siriani] had any problems in the Company to keep them in the Company." Manager Keller had "heard that [Siriani] was on the outside of the Company and he was quite concerned." Manager Keller empha- sized to the employee to "keep it within the Ford Motor Company." Subsequently, on April 5, as employee Sir- iani credibly testified, employees Siriani and West met with Manager Keller in order to discuss "what did it take to be a security supervisor." During this discussion, 9 See General Nutririon Center, 221 NLRB 850. 855 (1975), ',here Ad- minisirative Law Judge Nancy M. Sherman noted: "If the statute pro- tected only meritorious pleas to the Board, the Board's channels of inflr- mation would be dried up by fears of retaliation, should the plea prove unfounded," and cases cited. Manager Keller became angry, threw a pencil on the desk, and said, "God damn it, I want to know what you two people are up to." He had heard rumors that they were "going to sue Ford Motor Company." However, the two employees "didn't verify that" and Manager Keller warned, "people who put lawsuits into Ford Motor Company are not looked upon favorably" and he "wasn't going to promote [the] two." Employee West credibly recalled that Manager Keller informed the two employees that "Ford does not look favorably upon people who sue them and, as far as he was concerned [Siriani and West] were not going to be promoted and . . .were going nowhere in the Ford Motor Company." On the following day, April 6, Supervisor Wooldridge similarly admonished employee Siriani that "with all the power of the Ford Motor Company and all the attorneys that they had, [the employees] could end up getting [themselves] fired" for pressing their grievance. The efforts by employees Siriani and West to present their grievance, to explore the possibility of instituting a lawsuit against the Employer, and to file an unfair labor practice charge were protected by Section 7 of the Act. The record in this case makes it clear that there were, as Supervisor Nietubicz recalled, "a fair number of people" who were "upset because of the way Mr. Keller promot- ed people." Indeed, the Union presented this grievance to Management at step-one of the contractual grievance procedure. The record also shows that this grievance was presented and pursued in good faith and constituted a reasonable employee complaint. Management, howev- er, responded by engaging in conduct which was plainly calculated to deter employees from filing grievances under the Union's contract, filing civil actions, and filing unfair labor practice charges with the Board. Thus, Keller's statements to employees Siriani and West on April 5 that 'people who put lawsuits into Ford Motor Company are not looked upon favorably" and the two employees were not going to be promoted and "were going nowhere in the Ford Motor Company" plainly tended to interfere with the employees' exercise of their Section 7 rights, in violation of Section 8(a)(1) of the Act. Likewise, Supervisor Wooldridge's warning to employee Siriani on the following day, April 6, that the employees "could end up getting . . . fired" for pressing their complaint tended to discourage such protected ac- tivities. Manager Keller and Supervisor Wooldridge were clearly threatening the employees with reprisals in violation of Section 8(a)(l) of the Act. And, Manager Keller's unsuccessful effort, at the time, to get the two employees to reveal to him "what [they were] up to" and whether they were in fact "going to sue Ford Motor Company" constituted proscribed coercive interrogation of employee protected activities in further violation of Section 8(a)(1) of the Act. Thereafter, on May 3, employees Siriani and West filed the unfair labor practice charge in this case. A com- plaint later issued and the matter was scheduled for hear- ing. On November 22, Supervisor Dudek confronted em- ployee West at the employee's duty station, faulted the employee over a series of alleged work rule infractions, made it clear to the employee that he had been under FORD MOTOR COMPANY 42. surveillance, and then warned the employee: [I]f West would stop concentrating on losing lawsuits and spend- ing money on attorneys . .. I might go somewhere in the Ford Motor Company." I find and conclude on this record that Supervisor Dudek harassed employee West, engaged in surveillance of the employee's work, and verbally reprimanded the employee in retaliation for the filing of the unfair labor practice charge in this case. As Manager Keller had warned the employee earlier, "Ford does not look favor- ably upon people who sue them." Supervisor Dudek's coercive and disparate treatment of employee West vio- lated Section 8(a)(1) and (4) of the Act. The question remains whether Ford also denied the two employees promotions to the available supervisory positions because they had filed a grievance, contemplat- ed further legal action and filed the instant charge with the Board. I find and conclude here that the Employer, in turning down the recommendations by Supervisors Nietubicz and Brady that the two employees be promot- ed, was retaliating against the two employees because of their Union and protected concerted activities in viola- tion of Section 8(a)(1), (3), and (4) of the Act. Thus, Supervisor Nietubicz credibly recalled that he had recommended employees Siriani and West for pro- motion after the filing of the grievance in March. Super- visor Nietubicz was told about this time by his supervi- sor, Roddewig, that "Siriani has to learn to keep his mouth shut." Likewise, Supervisor Brady credibly testi- fied that he too had recommended both Siriani and West for promotion after the filing of the grievance. Indeed, Supervisor Brady had placed the names of Siriani and West on the top of his proposed promotion list in Octo- ber. Supervisor Brady recalled that his superior, Darr, then instructed him "that the first two, meaning Siriani and West, would not be able to stay on the list because of this action" before the Board. Supervisors Nietubicz and Brady reviewed in their tes- timony the high qualifications of both Siriani and West and why they were entitled to the promotions available in June and November 1978. Indeed, Manager Keller ac- knowledged telling employee Siriani earlier that same year, "Dennis, you know you are doing a good job, you are going to school, keep doing it, and I think you will achieve your objectives"; Supervisor Roddewig ac- knowledged telling employee Siriani during 1977 and early 1978, "to continue to do the job . . . which was a good one, to continue with his education, and that op- portunities for his promotion would very probably come along"; Supervisor Roddewig acknowledged that he would rate employee Siriani as "excellent"; and Supervi- sor Darr acknowledged that he "felt" that Siriani "should be considered" for a "promotion." Manager Keller testified that both Siriani and West were considered for the June and November promotions. Manager Keller claimed that others who were more qualified received the promotions. Manager Keller was at a loss to detail specific supervisory meetings where the qualifications of the employees were in fact re- viewed. Manager Keller, in his testimony, cited factors such as "rotation of assignments" and "education" in ex- plaining why, in his view, the promotions which were made in 1978 were the best at the time. However, Man- ager Keller acknowledged that guards have been pro- moted without taking "rotational assignments"; that "all locations" where there are guards "will encounter essen- tially the same things when it comes to police type action;" and that education "was a small part." I find and conclude here that the Employer, in refus- ing to promote the two employees, was attempting to punish them for pursuing their grievance and filing the instant unfair labor practice charge. I reject as pretextual Manager Keller's assertion that others who were more qualified were in fact promoted. I am persuaded here in- stead that this was not the real reason why the two em- ployees, highly qualified, experienced, and recommended for promotion, were turned down by management. In sum, I find and conclude that the Employer, in denying the available promotions to Siriani and West, was moti- vated in substantial part by a retaliatory purpose, in vio- lation of Section 8(a)(1), (3), and (4) of the Act. Counsel for Respondent argues that although "an em- ployer violates Section 8(a)(3) of the Act by refusing to promote a rank-and-file employee to a supervisory posi- tion because that employee engaged in union activities relating to unionization of nonsupervisory employees . . .that situation is clearly distinguishable from the in- stant case. In those cases, the discriminatory denial of a supervisory position would tend to discourage other non- supervisory employees from concerted activities related to their nonsupervisory employment. Here, the Charging Parties' only activity alleged to be protected relates to their seeking supervisory positions." This contention is without merit. The protected activity involved in this case includes the pursuit of a grievance under the Union's collective-bargaining agreement, contemplated legal action, and resort to the Board's processes by filing charges. Discriminating against employees because of their good-faith attempt to pursue their grievance under the Union's contract with the Employer, in my view, discourages their union activities. And, in any event, the Employer's conduct here interfered with employee Sec- tion 7 rights to file such grievance, pursue such griev- ance through a lawsuit, and file a charge with the Board. These Section 7 rights are no less protected, as discussed supra, because supervisory promotion policies are in- volved. See N.L.R.B. v. Bell Aircraft Corp.. supra. CONCLUSIONS OF LAW I. Respondent Ford Motor Company is an employer engaged in commerce as alleged. 2. Plant Protection Association National, Local 100, is a labor organization as alleged. 3. Respondent violated Section 8(a)(l) of the Act by coercively interrogating employees concerning their in- tentions to take concerted legal action against the Com- pany with respect to its promotion policies; by threaten- ing employees that they would be discharged or denied promotions if they took concerted legal action against the Company with respect to its promotion policies; by threatening an employee with the denial of a promotion for having filed an unfair labor practice charge: and by reprimanding and otherwise harassing an employee in re- FORD MOTOR COMPANY 423 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD taliation for his having filed an unfair labor practice charge. 4. Respondent violated Section 8(a)(1), (3), and (4) of the Act by reprimanding and otherwise harassing em- ployee West for his having filed an unfair labor practice charge and by denying employees Siriani and West pro- motions to supervisory positions during June and No- vember 1978, because they had filed a grievance, had contemplated further concerted legal action in protest over the Company's promotion policies, and had filed an unfair labor practice charge. 5. The unfair labor practices found above affect com- merce as alleged. THE REMEDY To remedy the unfair labor practices found above Re- spondent will be directed to cease and desist from engag- ing in such conduct and like or related conduct and to post the attached notice. And, having found that Respon- dent refused to promote employees Siriani and West be- cause they engaged in union and other protected con- certed activities, Respondent will be directed to promote immediately employees Siriani and West to the supervi- sory positions which they were unlawfully denied during June and November 1978, and to make them whole for any loss of earnings which they may have sustained by reason of this unlawful conduct by making payment to them of a sum of money equal to that which they nor- mally would have earned from the date of this unlawful conduct' to the date of making offers of such promo- tions, with backpay and interest thereon to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Also see Marmon Transmotive, supra. Further, Respondent will preserve and make avail- able to the Board, upon request, all payroll records and reports, and all other records necessary and useful to de- termine the amount of backpay due under the terms of this Decision. Upon the foregoing findings of fact, conclusions of law, and upon the entire record of the case, I hereby issue the following recommended: ORDER l The Respondent, Ford Motor Company, its officers, agents, successors, and assigns, shall: i. Cease and desist from: ' The record is unclear as to the specific dates in June and November 1978, when the promotions were unlawfully withheld. The specific dates can be ascertained, if necessary, in compliance proceedings. " In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. (a) Coercively interrogating employees concerning their intentions to take concerted legal action against the Company with respect to its promotion policies. (b) Threatening employees that they will be dis- charged or denied promotions if they take concerted legal action against the Company with respect to its pro- motion policies. (c) Threatening employees with the denial of promo- tions if they file unfair labor practice charges. (d) Reprimanding and otherwise harassing employees in retaliation for their having filed unfair labor practice charges. (e) Denying promotions to employees because they have filed grievances, contemplated further concerted legal action in protest over the Company's promotion policies, and filed unfair labor practice charges. (f) Discouraging membership in Plant Protection Asso- ciation National, Local 100, or any other labor organiza- tion, by denying promotions to employees because they have engaged in union or other protected concerted ac- tivities. (g) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the purposes of the Act: (a) Immediately promote employees Siriani and West to the supervisory positions which they were unlawfully denied during June and November 1978, and make them whole for any loss of earnings which they may have sus- tained by reason of such unlawful conduct, in the manner set forth in this Decision. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its facilities in Detroit, Michigan, copies of the attached notice marked as "Appendix."' 2 Copies of said notice, on forms provided by the Regional Director for Region 7, shall, after being duly signed by Respond- ent, be posted immediately upon receipt thereof, in con- spicuous places, and be maintained for 60 consecutive days. Reasonable steps shall be taken to insure that no- tices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 7, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. " In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pur- suant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "