Hudson Motor Car Co.

In the Matter of HUDSON MOTOR CAR COMPANY and INTERNATIONAL UNION, UNITED AUTOMOBILE WORKERS QP AMERICA, A. F. L. Case No. C-1680.Decided August 23, 1941 Jurisdiction : automobile manufacturing industry. Unfair Labor Practices Interference, Restraint, and Coercion: statements of supervisory employees favoring one of two rival organizations ; permitting representatives of one organization to engage in union activities during working hours while denying such right to adherents of rival organization. Discrimination: evictions of dissident co-workers by members of rival-favored union. Remedial Orders : reinstatement and back pay ordered. Mr. Harry N. Casselman, for the,Board. Mr. Alber E. Meder and Mr. Yates S. Smith, of Detroit, Mich., for the respondent. Mr. J. L . Busby, of Detroit, Mich., for the U. A. W.-A. F. L. Miss Ann Landy, 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, A. F. L., herein called the U. A. W.-A. F. L., the National Labor Relations Board, herein called the Board, by the Regional Director for the Seventh Region (Detroit, Michigan), issued its complaint dated April 17, 1940, against Hudson Motor Car Company, Detroit, Michigan, herein called the respondent, alleging that the respondent had en- gaged in and was engaging in unfair labor practices affecting com- merce, 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. With respect to the unfair labor practices, the complaint alleged in substance (1 that on September 8, 12, 13, and 14, and October 10, 1939, the respondent discouraged membership in Local 154 of the U. A. W.-A. F. L., herein called Local 154- A. F. L., and encouraged membership in Local 154 of International, Union, United Automobile Workers of America, C. I. 0., herein 34 N. L. R. B., No. 100. 815 816 DFOISIONS OF NATIONAL LABOR RFLAPIONS BOARD called Local 154-C. I. 0., by discrimination in regard to the hire and tenure of employment of 11 named employees,'. in that on those dates the respondent suffered, permitted, condoned, and tacitly en- couraged their forceful eviction from its plant by a group of stewards, officers, agents, and members of Local 154-C. 1. 0., for the reason that they had joined and assisted Local 154-A. F. L. and refused to join Local 154-C. I. 0., and (2) that thereby, by per- mitting and assisting officers, agents, and members of Local 154- C. I. 0., on and after May 1, 1939, to coerce and intimidate employees of the respondent in an attempt to force them to disaffiliate from Local 154-A. F. L. and join Local 154-C. I. 0., and by assisting Local 154-C. I. O. by various acts, the respondent interfered with, restrained, and coerced its' employees in the exercise of the rights guaranteed in Section 7 of the Act. Copies of the complaint and notice of hearing were duly served upon the respondent and the U. A. W.-A. F. L. On April 29, 1940, the respondent filed an answer to the complaint. The answer ad- mitted certain allegations in the complaint as to the nature of the respondent's business, denied the alleged unfair labor practices, and asserted certain affirmative defenses, which are hereinafter discussed. Pursuant to notice, a hearing was held at Detroit, Michigan, from May 7 to 13, and from June 3 to 11, 1940, before Earl S. Bellman, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondent, and the U. A. W.-A. F. L. were repre- sented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. During the course of the hearing the Trial Examiner ruled upon numerous motions and objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no preju- dicial errors were committed. The rulings are hereby affirmed. On September 21, 1940, the Trial Examiner issued his Intermediate Report in which he found that the respondent has not engaged in the alleged unfair practices and recommended that the complaint be dismissed. Thereafter the U. A. W.-A. F. L. filed exceptions to the Inter- mediate Report. Pursuant to request therefor by the U. A. W.'_ A. F. L. and upon notice to all parties, a hearing was held before the Board in Washington, D. C., on November 14, 1940, for the purpose of oral argument. The U. A. W.-A. F. L. and the respondent ap- peared and presented argument. The Board has considered the 1 Clifton Jones, James Gordon Wilson, James O'Neill, William McDonald, Arthur Blower, George Gallant, James Brown, Zoley Morgan ,, Leonard Sullivan, Percival Denesha, and Frank Sipple. HUDSON MOTOR CAR COMPANY 817 exceptions to the Intermediate Report, and finds them meritorious in so far as they are consistent with the findings, conclusions, and order set forth below. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent is a Michigan corporation having its principal offices and plants located in Detroit, Michigan. It is engaged in the manufacture, sale, and distribution of automobiles and automo- bile parts. During 1939 the respondent purchased raw materials and supplies worth approximately $37,000,000, and manufactured products worth approximately $53,000,000. The respondent obtained approximately 60 per cent of such materials and supplies from out- side the State of Michigan, and shipped about 92 per cent of its products to States other than Michigan, and to foreign countries. II. THE ORGANIZATIONS INVOLVED International Union, United Automobile, Workers of America, A. F. L., is a labor organization affiliated with the American Federa- tion of Labor. Through its Local 154 it admits to membership employees of the respondent. International Union, United Automobile Workers of America, C. I. 0., is a labor organization affiliated with the Congress of Industrial Organization's, similarly admitting to membership em- ployees of the respondent through its Local 154. III. THE UNFAIR LABOR PRACTICES A. Background In July 1936, International Union, United Automobile Workers of America, issued a charter to a labor organization of the respond- ent's employees, known as Hudson Local No. 154, herein called Local 154. International Union, United Automobile Workers of America originally was affiliated with the American Federation of Labor, but in July 1936, it affiliated with the Committee for Industrial Organization, and 2' months thereafter it was suspended by the American Federation of Labor. When, on November 16, 1938, the Committee for Industrial Organization became the Congress of Industrial Organizations, it granted a charter to the International Union, United Automobile Workers of America. In April 1937, the respondent and Local 154 entered into written agreements terminating a strike and recognizing the latter as bargaining agent for its members. $ 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In March 1938, prior to the expiration of the 1937 agreements, the respondent and Local 154 began negotiations for a new agree- ment. Local 154 renewed its demand for recognition as the sole bargaining agency, which demand had not been granted in the 1937 agreements. Negotiations were deadlocked. On April 11, 1938, Local 154 filed with the Board a petition for investigation and certification. Thereafter, on September 14, 1938, following a hearing, the Board issued its decision and certification of representatives, certifying Local 154 as the exclusive bargaining agency in a unit composed of all hourly rate employees of the respondent, excluding supervisory officials, foremen, assistant foremen, straw bosses, and all other salaried employees.2 In November 1938, subsequent to this certification by the Board, Local 154 and the respondent entered into an agreement for a year. While the term "sole collective bargaining agency" was not used in the agreement, it did "recognize the International Union, United Automobile Workers of America, Local No. 154, for the purposes of collective bargaining in disputes which may arise concerning hours, wages, or working conditions." The agreement also contained the provision that "any bargaining in connection with the wages, hours, or working conditions,' shall be done by the chief shop steward." Robert G. Waldron, the respondent's personnel director, in charge of labor relations, testified that the demand of Local 154 for sole bargaining agency was granted in the 1938 agreement. We agree with the finding of the Trial Examiner "that the respondent, pur- suant to the Board's certification, intended to and, in- fact, did grant sole recognition to a labor organization which was` then affiliated with the C. I. 0." The 1938 agreement which was in effect during the occurrence of the alleged unfair labor practices hereinafter discussed, did not contain a closed-shop provision. A schism occurred in the International Union, United Automobile Workers of America, in January 1939, and had repercussions in Local 154. One faction adhered to the C. I. O., the other affiliating with the A. F. L. The factional fight first occurred within the organization in the form of a contest for its control. In February 1939, Local 154 went on record as supporting the convention called by that faction of the International Union which remained affiliated with the Congress of Industrial Organizations. Those favoring the Congress of Industrial Organizations gained control of Local 154 during the factional struggle early in 1939, and the labor organiza- tion herein referred to as Local 154-C. I. 0., was and is, in fact, Local 154. The respondent recognized Local 154-C. I. O. as the 2 Matter of Hudson Motor Car Company and Local 154, International Union, United Automobile Workers of America, C. I. C. affiliate, 8 N. L. R. B. 1080. I3UDSON MOTOR CAR COMPANY 819 contracting party to the November 1938 agreement, and dealt with the officers and stewards of that organization as the representatives of its employees. Local 154-A. F. L. protested the respondent's decision to recognize the C. I. 0. stewards and attempted, without success, to get an agreement whereby, in the departments where the A. F. L. represented the majority of the employees, the A. F. L. stewards would be recognized. There is no allegation in the com- plaint attacking the validity of the respondent's continued recog- nition of Local 154-C. I. 0. as the proper party to the November 1938 agreement. At the hearing, counsel for the Board repeatedly stated that no such question was being raised. B. Interference, restraint, and coercion The conflict between the two factions of Local 154 mounted in in- tensity during the spring and summer of 1939. Prior to the shut- down for change of models about the first of July 1939, officials of Local 154-C. I. 0. met with Personnel Manager Waldron, and threat- ened to refuse to work if eight employees, leaders among the A. F. L. adherents, were allowed to return to work on the next model.3 Wal- dron refused to agree to discharge those men; however, he testified that he did consent at the end of the meeting to instruct the eight men named by the C. I. 0. officials "to refrain from carrying on any activity that would aggrevate the situation" and that he did not want "any literature passed or things of that nature done." Accordingly, Waldron called into his office each of the eight men individually as each returned to work on the new model. Six of the eight men testi- fied and the record contains ample evidence of the instructions they received from Waldron. They testified, without contradiction, that Waldron told them that the C. I. 0. had threatened refusal to work with them and warned them not to carry on any union activities, such as passing out union literature or union buttons and collecting dues. Waldron testified that he told the C. I. 0. officials that their activities against the A. F. L. faction would have to stop also. It is evident, however, from the events related below, that he made no attempt to enforce that instruction. The uncontradicted testimony of the employees whose eviction is alleged in the complaint establishes that during the period from May to September representatives of Local 154-C. I. 0. openly solicited members during working hours, interrupted the work of employees, and threatened A. F. L. adherents with physical violence and ejection from the plant, without interference by the respondent, whose super- visory officials were aware of these occurrences. Thus George Gal- The first list presented to Waldron by the C. I. 0 contained the names of Hagen, Sullivan, Blower, and Brown, but before the end of the conference the names of Wilson, Mutart, O'Neill and Denesha were also added. 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lant testified that during the month following his return to work on the new model in August 1939, stewards of Local 154-C. I. O. ap- proached him for dues four times. On one such occasion, Germain, the vice president of Local 154-C. I. 0., talked to Gallant for about 45 minutes, during working hours, in an effort to persuade Gallant to pay dues. On September 12 one of the assistant stewards of Local 154-C. I. O. told Gallant that he was going to be thrown out of the plant if he did not pay his dues. Gallant complained to his department foreman. The foreman said that he could do nothing about it, but gave Gallant permission to leave the department to see Tholl, assistant director of personnel. Tholl told Gallant that he did not think that the threat would be carried out and advised him to go back to work. Gallant was evicted from the plant by C. I. O. adherents on the same day. Employees Sullivan and Jones also testified, without contradiction, that stewards of Local 154-C. I. O. frequently interfered with their work in attempts to persuade them to join Local 154-C. I. O. On one such occasion a steward got hold of Jones by the collar, called him names, and shut off his machine. On another occasion `he was threatened with being thrown out of a window. When Sullivan and Jones complained to their supervisors they were told that the super- visors were unable to do anything about it, having orders not to interfere. Most of the other employees who were later evicted by C. I. O. members testified to having been similarly ' interfered with and threatened while solicited by stewards and officials of Local 154-C. I. O. The case of Hagen illustrates the difference between the leniency the respondent accorded the stewards of Local 154-C. I. O. in their campaign against the A. F. L. faction and the respondent's strict enforcement of its instruction to the A. F. L. adherents. Hagen was one of the eight men warned by Waldron against engaging in union activities. Shortly thereafter the respondent discharged Hagen "for engaging in union activities which were of such nature that they could not be permitted, and, it was the company's position that he engaged in them in direct violation of the company's instructions to him and to others." 4 The respondent relies upon its contract with Local 154-C. I. O. as a defense to the allegation of interference, restraint, and coercion. Such privileges as the contract accorded the Local included permit- ting shop stewards to leave their places of work on union matters, and permitted the collection of dues in the plant as long as work was A Counsel for the respondent made the above statement at the hearing . Hagen filed a charge of unfair labor practice with the Board . The case was disposed of subsequently by stipulation. HUDSON MOTOR CAR COMPANY 821 not interrupted thereby. However, officials of Local 154-C. I. O. went well beyond the privileges granted to them in the contract. They extensively,interfered with the work of employees who refused to join that organization. The respondent knew of their activities but took no action against them. At the same time the respondent prohibited the leaders of Local 154-A. F. L. from engaging in union activities in the plant, and discharged one of them for persisting in, such activities. The Trial Examiner found that it was reasonable to infer that Local 154-C. I. O. took the position that those favoring the A. F. L. were members of Local 154-C. I. O. who were failing to pay their dues, and that therefore the respondent, in light of its contract, did not violate the Act by permitting and condoning the activities of Local 154-C. I. 0., while denying the same to Local 154-A. F. L. The record contains no facts to support the inference drawn by the Trial Examiner. We find that by permitting stewards of Local 154-C. I. O. to en- gage in union activities in the plant during working hours to the extent of interfering with the work of employees, while denying adherents of Local 154-A. F. L. the right -to engage in any union activities, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. In,August 1939, shortly after the resumption of operations on the new model, James Gordon Wilson had a conversation with Jack Richie, who at this time was a millwright leader and in that capacity transmitted instructions from the foreman to the other millwrights. After ascertaining his name, Richie told Wilson that he understood that the latter belonged to the A. F. L. Wilson admitted this. Richie then said : "I believe you are making a mistake, the large majority of the men will go with the other group and your job is in danger. There is no use trying to resist these fellows, because they will be like an avalanche, they will snow you under, and you will eventually find yourself outside without a job." On the fol- lowing day Richie explained to Wilson his reason for speaking to him was merely that he-"was trying to do [Wilson] a favor."5 On September 12, during the eviction of two of the men named in the complaint, as hereinafter discussed, an altercation occurred between Frank Sipple and another employee. Assistant Foreman Bill Lampman 6 and Employee Howard French took hold of Sipple 5 Richie had a similar conversation with Clifton K. Jones, in May 1939, at which time, however, he was a millwright without supervisory authority. He told Jones that if he would sign up with the C. I. 0. he would be all right and if he did not "get in," he would be out of a job. "Lampman is an assistant foreman only when plant production reaches 60 cars per hour. At other times he is employed as an hourly paid repairman . Thus, he was 451269-42-vol. 34-53 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and led him away from the scuffle, and Lampman told Sipple that he should not be there "monkeying around," and that Sipple was a "darn fool." Two days later, Lampman spoke to Sipple and advised him to go over to the C. I. O. office and pay his dues and eliminate all the trouble. On the same day Lampman spoke to Leonard Sul- livan and told him : "Why don't you get in line? The C. I. O. is ,all right. You are in the wrong group." Neither Richie nor Lampman was called to testify and the above findings are based on the uncontradicted testimony of Wilson, Sul- livan, and Sipple. In May 1939, P. R. Denesha was asked by his foreman, Powell Elrod, "how come [Denesha] wasn't going with the boys." Elrod is admittedly a foreman. He was not called to testify. We find that Elrod is, a supervisory employee; that Lampman was a supervisory employee at the time of his remarks to Sipple and Sul- livan, and that Ritchie was a supervisory employee at the time of his conversation with Wilson. The Trial Examiner found that the respondent was not chargeable with the statements and conduct attributed to Ritchie and Lampman because their supervisory authority was limited, they belonged to a foremen's union affiliated with the C. I. O., and they acted contrary to the respondent's instructions to remain neutral. The Trial Ex- aminer further found that Elrod's questioning of Denesha was moti- vated by curiosity or friendly interest and was not intended or received as a threat or as solicitation. We cannot agree. The effect of these remarks, occurring at a time of factional conflict among the employees of the respondent, must be considered in the context of the favoritism which the respondent showed to Local 154-C. I. O. and its contrasting prohibition of activities of Local 154-A. F. L. Upon the entire record we find that the respondent by the afore- said remarks of its supervisory employees interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act. C. The evictions The Trial Examiner summarized the circumstances of each indi- vidual eviction and also made general findings covering all of them. The Trial Examiner's subsidiary findings of facts are, for the most part, not contested.7 We agree with those findings and shall not restate his summaries of the individual evictions. The essential facts are as follows : assistant foreman from October 16, 1938 , to February 16, 1939, and again from August 25, 1939, until sometime after the unfair labor practices herein alleged occurred, and we find that the respondent is answerable for his conduct above set forth. 7 Counsel for the respondent stated at the oral argument before the Board : "I think first of all that the Board in any examination of the record will be struck with the fact HUDSON MOTOR CAR COMPANY 823 During September 11 employees, all adherents of Local 154-A. F. L., were evicted from the plant, Wilson and Jones, on September 8; Mc- Donald, Gallant, Blower, and O'Neill, on September 12; Brown, on September 13; and Denesha, Morgan, Sullivan, and Sipple, on Sep- tember 14. While there was no evidence that any supervisory official of the respondent took part in any of the evictions, most, if not all the evictions were watched either by supervisory officials or by plant- protection employees, or by both. The supervisory officials and plant- protection employees were under specific instructions to remain neu- tral except in so far as their intervention was necessary to prevent violence and actual bloodshed. While there was some pushing and scuffling in connection with some of the evictions, there is no evi- dence that any of the evicted employees sustained any physical injury. Personnel Director Robert G. Waldron was out of the city from September 2 to 18, 1939, within which period these evictions took place. During his absence William E. Tholl, Waldron's assistant, was in charge of the respondent's labor relations. After the first three evictions, which occurred on September 8, Tholl met with the C. I. O. officials, who stated that they would not work with the evicted men under any condition and that if the respondent were to insti- tute any disciplinary measure it would mean closing down the plant. On September 11 the three employees who had been evicted on Sep- tember 8 returned to the employment office to see Tholl according to the instructions they received from him immediately after the evic- tion. Tholl ushered the men into another office where shortly after- wards a number of representatives of Local 154-C. I. O. joined them. Tholl was present for only a few minutes and did not par- ticipate in the ensuing meeting where the union representatives urged the evicted men to join Local 154-C. I. O. After the meeting the evicted men left the plant without having had an opportunity to discuss their difficulties with Tholl.8 that there are but one or two contested questions of fact, and not one of these questions is one which might be considered contested-or in our minds are of any real importance in the determination of the issues." "The Trial Examiner found that two inferences might be drawn from the testimony concerning the foregoing incident, either that the respondent permitted or arranged a meeting between the evicted employees and the representatives of Local 154 -C. I. 0 on company time and property or that the meeting with the complainants was taken out of Tholl's hands unexpectedly . The Trial Examiner found that it was unnecessary to resolve the conflict, inasmuch as he was of the opinion that whichever inference was drawn the testimony did not establish a violation of the Act . We cannot agree with his conclusions . Acceptance of the first inference as fact would require the finding that the respondent was assisting Local 154-C I. O. in overcoming the resistance of these men to its demand that they join it. Such assistance would constitute interference with self-organization . Tholl never sought to resume the conference which the men had re- quested. Thus, the alternative inference , that the conference was taken out of Tholl's hands, would place the respondent in the position of failing, on request, to remedy the evictions which, we hereinafter find, it unlawfully condoned . Such failure, in our view, constitutes a refusal to reinstate. 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 12, 13, and 14, the evictions continued. On Sep- tember 15, the evicted employees secured a , temporary injunction in the Circuit Court for the County of Wayne, in Chancery, against some 45 named individuals, all of whom were officers, stewards, and members of Local 154-C. I•. 0., and against the Local itself. The Court's restraining order of September 15, 1939, restrained the defendants from annoying, harassing, molesting or disturbing plaintiffs, from inflicting or threatening to inflict physical violence upon them, from demanding that they become members of Local No. 154, and from demanding of Hudson Motor Car Company that plaintiffs be discharged from employment, and from doing any act or thing intended or calculated or which might, either by threats, intimidation or actual physical violence, molest, disturb or interfere with plaintiffs in the pursuit of their occu- pation as employees of Hudson Motor Car' Company, and from threatening to or inflicting physical violence 'upon plaintiffs or members of their families.° Waldron returned to `the plant on September 18, to resume his responsibilities as personnel director. He talked with Tholl, T. B. Swegles, the respondent's vice president in charge of manufacturing, and C. D. Sterling, the respondent's secretary, concerning the events which happened during his absence and the position taken by the respondent. The respondent's position with respect to the Sep- tember evictions is stated in the testimony of Waldron : Q. What, was the position the company had taken? A. We discussed the matter and the company's position at that time was that we could do nothing about it. If we brought them back we would have a strike, and if we disciplined any- body on it we would have a strike also. It was a "situation that had been accumulating a lot of heat, and it was a factional disturbance not of our making and we couldn't see anything that we could do. Q. What was your position as far as the status of these men, or the company, is concerned? A. We all agreed in the management that they had their jobs available there, that we didn't wish or we didn't break their seniority; we felt that they had not separated themselves as far as breaking their record is concerned. In other words, it wasn't a discharge and it wasn't considered as such. O The restraining order remained in effect until December 11, 1939, when it was dis- missed upon motion by the defendants . The "Order Dismissing Cause" recites that the motion to dismiss had been filed October 18, 1939 ; that hearings on the motion had been adjourned five times ; and that on the last return date, on December 8, 1939, plaintiffs' attorney failed to appear. HUDSON MOTOR CAR COMPANY 825 At no time did the respondent raise any question as to the efficiency of the evicted men or as to their desirability as employees. Concern- ing their cessation of work in September, the employment record of each contains a notation as to the reason for his not being em- ployed. It reads : "Told to leave the Plant by a number of U. A. W.- C. I. O. men." On September 25 a number of the evicted employees called at the employment office seeking information about the situation at the plant, ready to go to work if feasible. They met with Waldron and after considerable discussion it was agreed that they better wait "until things cooled off a little bit." On October 9, 10 of the evicted employees again called on Waldron at the employment office. ready to return to work. Waldron, after consultation with other officials of the respondent, told the men that they could start on the following morning inasmuch as he needed a day in which to arrange for their return. Accordingly, these 10 employees returned to work on October 10, but as they were about to resume their operations, the other employees in their respective departments stopped working, apparently on orders from the stewards of Local 154-C. I. O. Thereupon the men were again evicted by adherents of that union. Thereafter they once more discussed the situation with Waldron. Waldron took the position that the re- spondent's business was that, of building automobiles and not that of settling union disputes. He also reiterated that the jobs of the evicted employees were still open to them and that they had not been discharged by the respondent. He did nothing to restore the men to their jobs. There is no evidence that any of the evicted men ever attempted to return to work at the plant after October 10, 1939. So far as the record shows, the respondent's position since then has been that the jobs of the 11 employees were available to them whenever they wished to return to work, and that each of them has retained his seniority. Conclusions concerning the evictions Eleven of the respondent's employees, members of Local 154- A. F. L., were evicted from the plant by employees who belonged to Local 154-C. I. O., the organization which represents the majority of the respondent's employees. The respondent's defense is that it was powerless to prevent the evictions because if it had intervened Local 154-C. I. O. would have called a strike. The Trial Examiner found with respect to the evictions that the respondent did not violate Section 8 (3) of the Act. He dis- 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tinguished the Star Publishing 10 and Cape Cod Trawler " cases on the ground that the respondent herein has not acted affirmatively, that is, it has not actually discharged the complainants. Having found that the evictions were not the direct result of the respondent's acts, and were not affirmatively encouraged by it, the Trial Examiner distinguished the Board's decision in the Riverside Manufacturing Company case i2 on that ground and concluded that the respondent did not owe the duty of providing its employees with "adequate protection" in their employment. We cannot agree with the conclusions of the Trial Examiner. We have found that the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, both by permitting stewards of Local 154- C. I. 0. to engage in union-activities in the plant during working hours to the extent of interfering with the work of employees, while denying adherents of Local 154-A. F. L. the right to engage in any union activities, and by the pro-C. I. 0., anti-A. F. L. state- ments of certain of'its supervisory employees. We-are of the opin- ion, and find, that the respondent's favoritism toward Local 154- C. I. 0., demonstrated in those unfair labor practices, contributed materially to the state of mind oft the C. I. 0. adherents in their determination to evict their dissident co-workers.13 The respondent therefore owed the affirmative duty of reinstating and safeguarding evicted employees.14 Furthermore, as we have held, even where no other unfair labor practice is committed, an employer who takes no action to prevent the ejection of his employees by members of a rival union, is himself responsible for the ejection, such ejection being tantamount to a discharge.- In conclusion we find that the 11 employees were evicted because of their activity and membership in Local 154-A. F. L. and their '° Matter of Star Publishing Company and Seattle Newspaper Guild, 4 N. L. R . B. 498, enforced National Labor Relations Board v. Star Publishing Company, 97 F. (2d) 464, 465 (C. C. A 9, 1938). n Matter of Cape Cod Trawling Corporation, Booth Fisheries Corporation and Massa- chusetts Trawling Co. and American Communications Association,, (CIO), 23 N. L. R B. 208. 'Matter of Riverside Manufacturing Company and Amalgamated Clothing Workers of Amerwa, 20 N. L. R. B. 394, mod. and enf'd N. L. R. B. v. Riverside Mfg. Co, 119 F. (2d) 302 (C. C. A. 5). zs We note in this connection that the contract in effect between the respondent and Local 154-C. I. O. at the time of the evictions provided , inter alia: The Union agrees that neither the Union nor its members will intimidate or coerce employees, and also agrees not to solicit membership or dues on Company time or plant property * * * The respondent does not contend that it invoked this clause against the action of C. I. O. adherents in evicting their rival unionists . Its failure to do so contributes to our con- clusion that the respondent failed of its obligations toward the evicted employees. 14 Matter of Riverside Manufacturing Company, supra, and cases cited therein. 16 Matter of Isthmian Steamship Company, 22 N. L. R B 689. HUDSON MOTOR CAR COMPANY 827 refusal to join Local 154-C. I. 0., and that the respondent by taking no action to prevent their eviction has discriminatorily discharged them. Even though induced by Local 154-C. I. 0., such discrim- ination was unlawful because it was not required by any valid closed-shop contract between the respondent and Local 154-C. I. O. within the meaning of the proviso to Section 8 (3).16 We find that the respondent, by discharging Wilson and Jones on September 8, McDonald, Gallant, Blower, and O'Neill on Sep- tember 12, Brown on September 13, and Denesha, Morgan, and Sullivan on September 14, 1939, discriminated against them in regard to their hire and tenure of employment, thereby encouraging mem- bership in Local 154-C. I. O. and discouraging membership in Local 154-A. F. L., and that by the above described conduct the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and with foreign countries, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. - V. THE REMEDY We have found that the respondent discriminated in regard to the hire and tenure of employment of James Gordon Wilson, Clifton K. Jones, William McDonald, George Gallant, Arthur E. Blower, James O'Neill, James Henry Brown, Percival Joseph Denesha, Zoley Morgan, Leonard Sullivan, and Frank Sipple. In order to effectuate the policies of the Act we shall require the respondent to offer to each of these men immediate and full reinstatement to his former or a substantially equivalent position without 'prejudice to his seniority and other rights and privileges, and to make him whole for any loss of pay he may have suffered by reason of the respondent's discrimination against him by payment to him of a sum of money equal to the amount which he would normally have 19 The proviso to Section 8 (3) of the Act is as follows : Provided, That nothing in this Act, ... shall preclude an employer from making an agreement with a labor organ- ization ( not established, maintained , or assisted by any action defined in this Act as an unfair labor practice ) to require as a condition of employment membership therein, if such labor organization is the representative of the employees as provided in Section 9 (a), in the appropriate collective bargaining unit covered by such agreement when made. 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD earned as wages from the date of the respondent's discrimination against him to September 21, 1940, the date of the Trial Examiner's Intermediate Report, and from the date of this Decision to the date on which the respondent offers him reinstatement pursuant to this Order, less his net earnings 17 during said periods. Inasmuch as the Trial Examiner recommended dismissal of the complaint, the respondent will not be required to pay back pay from September 21, 1940, the date of the Intermediate Report, to the date of this Decision 18 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 154, affiliated, with the Congress of Industrial Organizations, and International Union, United Automobile Workers of America, Local 154, affiliated with the American Federation of Labor, are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of em- ployment of James Gordon Wilson, Clifton K. Jones, William McDonald, George Gallant, Arthur E. Blower, James O'Neill, James Henry Brown, Percival Joseph Denesha, Zoley Morgan, Leonard Sullivan, and Frank Sipple and thereby encouraging membership in the International Union, United Automobile Workers of America, Local 154, affiliated with the Congress of Industrial Organizations, and discouraging membership in the International Union, United Automobile Workers of America, Local 154, affiliated with the Amer- ican Federation of Labor, the respondent 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 prac- tices, 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. 11 By "net earnings" is meant earnings , less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working elsewhere than for the respondent, which would not have been incurred but for the unlaw- ful discrimination against him and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2 590, 8 N. L. R. B. 440. 18 Matter of E. R. Haffelfinger, Inc. and United Wall Paper Crafts of North America, Local No. 6, 1 N. L. R. B. 760, and subsequent cases. HUDSON MOTOR CAR COMPANY 829 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, Hudson Motor Car Company, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in International Union, United Au- tomobile Workers of America, Local 154, affiliated with the Ameri- can Federation of Labor, or any other labor organization of its employees, or by discriminating in regard to hire or tenure of employment or any terms or conditions of employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their 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 Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to James Gordon Wilson, Clifton K. Jones, William McDonald, George Gallant, Arthur E. Blower, James O'Neill, James Henry Brown, Percival Joseph Denesha, Zoley Morgan, Leonard Sullivan, and Frank Sipple immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges; (b) Make whole James Gordon Wilson, Clifton K. Jones, William McDonald, George Gallant, Arthur E. Blower, James O'Neill, James Henry Brown, Percival Joseph Denesha, Zoley Morgan, Leonard Sullivan, and Frank Sipple for any loss of pay they have suffered by reason of the discrimination against them by payment to each of them, respectively, of a sum of money equal to that which he would normally have received as wages during the period from the date of the respondent's discrimination against him to September 21, 1940, the date of the Intermediate Report, and from the date of this Order to the date of the respondent's offer of reinstatement, less his net earnings,19 if any, during said period; (c) Immediately post in conspicuous places in its plant at Detroit, Michigan, and keep posted for a period of at least sixty (60) con- secutive days from the date of posting, notices to its employees stating (1) that the respondent will not engage in the conduct from 19 See footnote 17, supra. 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which it is ordered tocease and desist in paragraphs 1 (a) and (b) 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, affiliated with the American Federation of Labor, and that the re- spondent will not discriminate against any employees because of membership or activity in that- organization; (d) Notify the Regional Director for the Seventh Region, in writing, within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith.