John L. Camp

JOHN L. CAMP 51 In accordance with the Woolworth decision, it will be recommended that the Respondent , upon reasonable request, make available to the Board and its agents all records pertinent to an analysis of the amount due as back pay. The unfair labor practices found reveal on the part of the Respondent an antipathy to the objectives of the Act as to justify an inference that the com- mission of other unfair labor practices may be anticipated . The preventive purposes of the Act may be frustrated unless the Respondent is required to take some affirmative action to dispel the threat. It will be recommended, therefore, that the Respondent cease and desist from in any manner interfer- ing with, restraining , and coercing its employees in the exercise of the rights guaranteed by the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case , the undersigned makes the following: , CONCLUSIONS OF LAW 1. International Association of Machinists is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Cecil Weitlauf, W. L. Choate, Anthony Daniel Kelly, James Edwin Smith, William Earl Sloan, Ben W. McKinney, Raymond K. King, James Bradley Smith, Z. C. Herrold , William R. Vines, Sam J. Sloan„Reginald Purcell, A. L. Ham, John W. Dowell, Earl D. Terry, and Fred O. Rupche, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 ( a) (3) of the Act. 3. By such discrimination , by interfering with, restraining, and coercing em- ployees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (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. [Recommended Order omitted from publication in this volume.] JoHN L. CAMP. September 10, 1951 Decision and Order On November 4, 1949, the General Counsel of the National Labor Relations Board, herein called the Board, filed with the Board a peti- tion for issuance of an order to show cause why the Respondent, John L. Camp, an attorney at law, should not be excluded from fur- ther practice before the Board because of an assertedly unprovoked, premeditated, physical assault of an aggravated character committed by Camp upon Edmond Donald Wilson, the attorney representing the General Counsel, during the course of an unfair labor practice proceeding before Trial Examiner Henry J. Kent in Ohio Oil Com- pany, 92 NLRB 1597. 96 NLRB No. 7. 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After the Board issued the requested show-cause order, the Re- spondent filed a motion to-dismiss the proceeding and still later an answer in which, in substance, he admitted that he struck Wilson, but denied that the assault was premeditated or aggravated in nature, and alleged that Wilson provoked the assault by misconduct on his part. The answer also urged that the Respondent should not be denied the right to practice before the Board and that the petition should be dis- missed and the order to show cause discharged because the petition failed "to state a claim against Respondent on which relief can be granted." Thereafter, on February 17, 1950, the Board ordered that a hearing before a hearing officer be held on the petition and answer and directed that the hearing officer file "a statement of findings of fact relating to the allegations" in the petition and answer. The Board reserved ruling on "all other motions."' Pursuant to this order, after a hearing, Trial Examiner Charles E. Ferguson filed his "Hearing Examiner's Review of the Evidence in a Hearing upon the General Counsel's Petition and Respondent's Answer Thereto in the above-entitled Matter, with Findings of Fact and Report to the Board," dated March 8, 1951.2 Thereafter, the General Counsel and the Respondent filed exceptions to the Hearing Examiner's Report, and supporting briefs. On July 10, 1951, the Board heard oral argument at Washington, D. C., in which the General Counsel and the Respondent participated. The Board has reviewed the rulings of the Hearing Examiner made at the hearing and finds that no prejudicial error was com- mitted. The rulings are hereby affirmed. The Board has considered the Hearing Examiner's Report, the exceptions and briefs, the oral argument, and the entire record in the case, and hereby adopts the findings and conclusions of the Hearing Examiner. The Respondent's Application to Dismiss This Proceeding The Respondent has challenged the Board's authority to conduct the present proceeding on a number of grounds. In substance, the Respondent contends that the Board has no authority, either inher- ently or under the basic statute creating it and defining its authority or any other statute, to snake regulations governing admission of attorneys to practice before it; and that consequently the Board has no power to disbar or otherwise exclude attorneys from future prac- 1 The Respondent instituted proceedings in court to restrain the Board from conducting this proceeding and for other relief. This litigation, is referred to below. s In accordance with the Board 's order of February 17, 1950 , the Hearing Examiner limited his Report to the making of findings of fact as to the allegations of the petition and answer. Thus, he made no recommendations and did not pass on the application to dismiss. JOHN L. CAMP 53 tide before it. The Respondent also asserts that such a power is not one necessary to the express powers granted to the Board by the amended National Labor Relations Act. The Respondent admits that the Board's rule-making power, found in Section 6 of the National Labor Relations Act, as amended, 3 enables the Board to adopt rules to regulate the conduct of its proceedings, in- cluding rules for punishing contemptuous behavior during the course of a proceeding which the Board, by statute, is authorized to conduct. 4 The Respondent asserts, however, that there is a fundamental differ- ence between the power to punish for contemptuous conduct and the power to disbar or suspend from future practice before the agency. He urges that the latter authority must either be expressly granted in the basic statute or derived from specific statutory authority to de- termine admission qualifications, and that, as the Act is silent in these respects and as no other statute authorizes the Board to take action respecting persons practicing before the agency, the Board has no power to disbar or otherwise discipline as to future proceedings those appearing before it. 5 The Respondent also argues, in this connection, that, as the National Labor Relations Act, as amended, only authorizes the Board to con- duct the types of proceedings provided by Sections 9 and 10 of the amended Act, no authority exists in the Board to conduct the present proceeding. The Respondent further argues that because the Board is only au- thorized to issue rules and regulations by Section 6 of the amended Act, it has exercised all its valid authority by publishing its Rules 102.44 and 102.58 (d). These rules provide that "contemptuous con- duct at any hearing" shall be grounds for exclusion from the hearing. Thus, while conceding the Board's power to punish for contempt under its rules, the Respondent asserts that because Trial Examiner Kent 3 Section 6 of the National Labor Relations Act, as amended , provides : The Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by the Administrative Procedure Act, such rules and regula- tions as may be necessary to carry out the provisions of this Act. 4 N. L. R B v Weirton Steel Company, 135 P. 2d 494, 496. 5In support of the position that the power in question here does not inhere in'adminis- trative agencies, the Respondent alludes in his brief to a statement made by Chairman Herzog before a subcommittee of the Committee on the Judiciary of the House of Repre- sentatives However, when the Chairman then stated that H. R. 2657, 80th Congress (a, bill to regulate the whole subject of admissions and disbarment of practitioners before administrative agencies ) "would have the effect of vesting in administrative agencies the power normally inhering in any judicial body to maintain the dignity of their proceedings," he intended no more or less than did the House Committee on the Judiciary in commenting on the counterpart of H. R. 2657 in the 81st Congress, H. R 4446, namely, that the bill "recognizes for the first time in statutory language" that agencies may discipline attorneys at their bars ( emphasis added ). Thus, the Chairman 's statement clearly meant only that Congress was contemplating codification of existing law and was not attempting to change it. 974176-52-vol. 96-5 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD excluded Camp from further participation in the Ohio Oil Company proceeding after he struck Wilson, the full thrust of the Board's au- thority to deal with unruly counsel has been invoked. , ' We find no merit in these contentions. The Board believes and finds that, as a quasi-judicial agency entrusted with the enforcement of a 'declared public policy, the Board possesses, as it must, an inherent power reasonably to control practice before it in the interest of pre- venting disruption of its proceedings and to protect its processes and agents from being held up to disrepute. The Board also believes and finds that it is empowered to conduct such proceedings as may be neces- sary to that end. Such power is as indispensable to the regular conduct of this agency's business, and to the proper administration of justice by it as the corresponding power of a court is necessary to the court. Such power is a natural and necessary concomitant of the Board's basic statutory functions; no express statutory provision is required to cre- ate it; nor can it be made to depend upon the Board's authority to make rules. In support of his contention that the' Board lacks authority to con- duct the present proceeding, the Respondent also relies upon Section 6 (a) of the Administrative Procedure Act.6 The Respondent argues that because any "person" is given the right by that statute to be repre- sented before an administrative agency by counsel of his own choice, the Board has no authority to limit such person's choice of representa- tion. Thus, it follows, the Respondent argues, that because the Board cannot prevent a respondent in a proceeding under the National Labor Relations Act from selecting any counsel (presumably Camp in an- other Board proceeding), the Board lacks authority to grant the relief now sought by the General Counsel. We reject this contention. The power presently being asserted by the Board existed before the enactment of the Administrative Proce- dure Act. We have already found, apart from that statute, that the Board, as a quasi-judicial agency, is vested with authority, concededly inherent in a court, to assure orderly procedures, to maintain its dig- nity, and to preserve against gross abuse the public interest it is charged by statute, to protect. Section 6 (a) of the Administrative Procedure Act, so far as pertinent, deals exclusively with the right of any person compelled to appear in person before the Board to be repre- sented by counsel; it does not affect the Board's inherent power to reg- _e Section 6 of the APA, in its pertinent part, reads as follows : (a) Appearance.-Any person compelled to appear in person before any agency or representative thereof shall be accorded the right to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representa- tive. . . . Nothing herein shall be construed either to grant or to deny to any person who is not a lawyer the right to appear for Sr represent others before any agency or in any agency proceeding. JOHN L. CAMP 55 ulate, in the interest of maintaining orderly and decorous proceedings, the conduct of that counsel. The legislative history of the Adminis- trative Procedure Act shows that Congress did not intend to deal with, or in any way qualify, the preexisting power of any agency to regulate practice at its bar. In Section 6 (a) of that Act, Congress merely stated existing law and practice. A right to be represented by coun- sel or to act as counsel in another's behalf in proceedings before an administrative agency is not now nor has it ever been a license to en- gage in misconduct before the agency; nor is it a limitation upon an agency's power appropriately to protect its proceeding against mis- conduct. We conclude that the Administrative Procedure Act did not deprive the Board of its inherent power to regulate the conduct of at- torneys practicing at its bar. The Respondent also contends that, assurmiing authority in the Boar&_ to take disciplinary action, the present proceeding remains fatally de- fective because it was not undertaken pursuant to a published rule or- regulation governing disbarment or other forms of discipline, as re- quired by Section 3 (a) (2) and (3) of the Administrative Procedure Act.' We find no merit in this contention. We have already found that the Board is empowered to maintain this proceeding. The actual no- tice of the procedure adopted by the Board, i. e., the rule to show cause served upon Camp, adequately advised Camp of the standard of conduct that he is alleged to have offended, the procedure under which the matter would be determined, and the contemplated form of penalty for his admittedly offensive conduct. There is no denial that Re- spondent was properly served. Thus, the actual notice to Camp dis- pensed with the need for the adoption of a rule and publication of it in the Federal Register which, at best, would have been no more than constructive notice as required by Section 3 (a) (2) of the Administra- tive Procedure Act.8 Moreover, the Board is not required by Section 3 (a) (3)9 to pro- mulgate and publish any substantive standards relating to the legal basis of the proceeding pending against Camp, because the Board is free, as an alternative, to resort to its adjudicatory function and es- tablish the applicable standards on a case-to-case basis. An agency may, in pursuance of its rule-making function, lay down general 4 Sec. 3 (a) of the Administrative Procedure Act provides : Rules.-Every agency shall separately state and currently publish in the Federal Register . . . (2) statement of the general course and method by which its functions are channeled and determined , including the nature and requirements of all formal or informal procedures available . . ., and (3 ) substantive rules adopted as authorized by law and statements of general policy or interpretations formulated and adopted by the agency for the guidance of the public but not rules addressed to and served upon named persons in accordance with law. No person shall in any manner be required to resort to organization or procedure not so published. 8 Attorney General's Manual on the Administrative Procedure Act, p. 19-29. 9 See footnote 7, supra. 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD standards to be applied to future cases. In such event, Section 3 (a) (3) requires that the standards be published in the Federal Register. On the other hand, the agency may exercise its adjudicatory function and "deal with the problem on a case-to-case basis" (Securities Comem'n v. Chenery Corp., 332 U. S. 194, 203), in which event Section 3 (b),1° not 3 (a) (3), applies. Attorney General's Manual on the Administrative Procedure Act, p. 22. "To insist upon one form of action to the exclusion of the other is to exalt form over necessity" and "to stultify the administrative process." Chenery case, supra, at p. 202. The Board has determined administratively that the public interest presently is best served by not prescribing qualification requirements for persons appearing before it in a representative capacity. But that does not mean that the Board is without power to do so should the need be made apparent, or that until it does so it may not proceed upon a case-by-case basis. Further, the fact that the Board chose to limit the exercise of its mule-making power. by providing in its published rule that "contemp- tuous conduct" occurring at any hearing would be grounds for ex- clusion from that proceeding does not mean that the Board exercised all of its valid power to impose disciplinary measures for unruly conduct. (Cf. Goldsmith v. Bd. of Tax Appeals, 270 U. S. 117.) It was not to be supposed that members of the bar would need the guid- ance of a published rule to be made aware that physical violence in the hearing room would be grounds for more than mere exclusion from the particular proceeding, or that they would not be free to return without limitation to repeat acts of gross misconduct on another day in another proceeding before this agency. In denying Camp's application for an injunction to restrain the Board from conducting the instant proceeding and for other relief, Judge Edward Tamm, sitting in the U. S. District Court for the District of Columbia, held that in advance of a final determination by the Board in the "exclusion proceeding," the matter was beyond the reviewing jurisdiction of the court. The District court, in agree- ment with the Board's fundamental position, also ruled that "basically administrative agencies have inherent power to control practice before them, and that this power is not disturbed by the Administrative Procedure Act." (Camp v. Herzog, et al., June 13, 1950, 26 LRRM 2379; see also Camp v. Herzog, et al., April 26, 1951, 27 LRRM 2632.) For the reasons hereinabove indicated, we hereby - deny the Respondent's application to dismiss this proceeding upon the grounds asserted. '0 Section 3 (b) of the Administrative Procedure Act provides : Options and Orders.-Every agency shall publish ... all final opinions or orders in the adjudication of cases ... JOHN L. CAMP The Merits 57 The relevant facts giving rise to this proceeding, as found by the Hearing Examiner, are, substantially as follows.'1 The assault in question occurred in the county courthouse at Rankin, Texas, about 10: 45 a. m., on October 26, 1949, the sixth day of a hearing in an unfair labor practice proceeding before Trial Examiner Henry J. Kent. On the day of the assault, the Respondent, a member of Ohio Oil Company's Houston legal staff, was engaged as counsel together with William Tell, an attorney and member of the Company's home-office legal staff at Findlay, Ohio, detailed to assist the Houston division legal staff in representing the Company in a Board proceeding upon a complaint against the Company. Before the assault, Wilson, as counsel representing the General Counsel, had completed presentation of the General Counsel's case-in-chief ; the employer, Ohio Oil Com- pany, had called two witnesses, R. C. Gwilliam, vice president of the Company in charge of its Houston division office, and F. G. Bascom, superintendent of its Yates Field Operations, both personal friends. of Camp. Camp had questioned - Gwilliam on direct examination; Tell had questioned Bascom, the second of the Company's witnesses, on direct examination; Trial Examiner Kent had excused Bascom from the hearing room at the request of Wilson who made the request when Kent asked Wilson to state how a question, put to Bascom by Wilson on cross-examination and objected to by Tell, was material; and Kent had denied, pending the argument on materiality, a request by Camp for a recess. The question asked by Wilson to which Tell had objected was :12 Will you tell us when he [Al Phillips] started to work and when he stopped working? 11 We adopt the hearing examiner's findings of fact and conclusions in full, for the reasons hereinafter indicated. 12 To understand the significance of this question and subsequent statements made by Wilson, it is necessary to explain the nature of the complaint case and to review portions of the testimony given by the Company's two witnesses before the assault took place. The complaint alleged the unlawful discharge of two employees , Jack L. Davidson and Jessie L. Buchanan on August 13 and August 21, 1948 , respectively. The Company defended against the complaint on the ground that the two employees were discharged because of deficiency in their work In support of this defense , on direct examination, Superintendent Bascom testified in substance that in March 1948 he found Davidson and Buchanan loafing on the job at the Yates field in Iraan , Texas , and that two other em- ployees, Glen Hale and Marion Windland , were the other members of the work crew present on that occasion On cross-examination on the sixth day of the hearing , Bascom admitted that Windland had been transferred to the Company's oil fields in New Mexico in December 1947 . By means of the question to which Tell objected , Wilson thus sought to show that Al Phillips and not Marion Windland was the fourth member of the work crew in question in March 1948 for the purpose of impeaching Bascom's testimony on direct examination that he found Buchanan and Davidson loafing at that time. Two other aspects of the case should be noted in this connection . ( 1) Board witnesses had testified that Davidson and Buchanan were not advised by the Company as to the 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wilson and Tell stood before the judge's bench arguing the question of admissibility 13 As they faced the judge's bench, Wilson stood to the right and Tell to the left of the judge's bench. When, in the course of his argument, Wilson stated, "If nothing else, credibility," Camp rose from his chair at the left side of the counsel table as-it faced the judge's bench, and proceeded to the bench, "being aroused by the reference to credibility about which so much had already been said in, at times, sharp and accusatory language dur- ing the testimony to that point, of the Company's two witnesses, Gwil- liam and Bascom." Camp "may well" have pulled Tell slightly to one side, "if that was necessary" in order to pass Tell who "may have been" partially blocking the narrow space between the front end of the counsel table and the judge's bench. Camp moved in between Tell and Wilson as Wilson was making the statements covered by lines 29 to 39 of the Hearing Examiner's Report, p. 97. Camp remained in this position between Tell and Wilson until Wilson completed his statement ending with line 39. At that point, while remaining in the same position, Camp made an objection, shown in part at line 40, as follows :14 We object to this continually trying to impeach the witnesses, the witnesses for the Respondent (or impeach the or this wit- ness) on immaterial matters and the repeated statements that the witnesses for Respondent are not telling the truth. Wilson rejoined: They have been lying all the way through. At that point, Camp "lost his temper, and in a sudden flash of anger, whirled Wilson about, shoved him back, and hit him" in the face, but did not kick Wilson or attempt to kick him, as alleged in the petition. As a result of the blow, Wilson was knocked to the floor. Continuing the assault as Wilson lay on the floor, Camp again struck him. Tell pulled Camp away from Wilson, and one of the witnesses, Davidson, helped Wilson to his feet. reason for their discharge at the time of their dismissal . On cross-examination , Gwilliam, a company witness, on the fifth day of the hearing , testified that he understood as a result of a report of a subordinate that the two dischargees had been advised of the reason for their discharges at the time of their dismissal ; Camp objected. to Wilson's pursuing this line of inquiry ; and when gent expressed doubt as to the materiality of Wilson 's inquiry and indicated that he, gent, saw no justification for continuing it, Wilson charged "that this story that they were told is a concoction created, fabricated after the charge was filed." ( 2) On cross-examination, Gwilliam changed his testimony as to the identity of the person instructed by Gwilliam with respect to answering a letter from the dis- chargees as to why they had been discharged . As to this , during the course of the hearing before gent, Gwilliam admitted that he "was getting a little mixed up" and Tell stated that Gwilliam was "confused." ss The bulk of this argument is set forth verbatim in the Hearing Examiner 's report, under the caption : "8. Sixth day (Wednesday, October 26, 1949)." 14 The reporter at the hearing before Trial Examiner gent did not include the following statements made at this point in their entirety, because both Camp and Wilson talked at the same time at this point and because of the attendant excitement which ensued. JOHN L. CAMP 59 Wilson sustained injuries of'a temporary nature. His "left eye was swollen completely closed"; swelling later developed on his left ;jaw; and he had bruises on his back which finally turned "black and blue." ' . When the county sheriff, who immediately appeared on the scene, asked for an explanation of the affray, Trial Examiner Kent stated that both Camp and Wilson "were out of line," and that Wilson "was out of line in the remarks he had addressed to Mr. Camp." 15 At the suggestion of Tell, Camp proffered an apology, stating that he was sorry he lost his temper. The hearing-resumed, following a postponement, after Trial Ex- aminer Kent excluded Camp from further participation therein because he had struck Wilson. In the main, the General Counsel excepts to the Hearing Examiner's findings in the following respects : 1. As to the number of steps required for Camp to move from his chair at the counsel table to the judge's bench. The Hearing Examiner found that Camp could move to the bench in two, or at most, three steps. Although excepting to this finding, the General Counsel takes no position as to how many steps were required. 2. As to the speed at which Camp moved from his. chair to the bench. The Hearing Examiner found that Camp "did step hurriedly the few feet to the judge's bench." The General Counsel contends that Camp "rushed" to the bench. 3. As to the space between Tell and Wilson when Camp approached the bench immediately preceding the assault. The Hearing Examiner found that there was space of at least 24 to 30 inches. In excepting to this finding, the General Counsel contends that Tell and Wilson were standing side by side and shoulder to shoulder. 4. As to whether Camp jerked Tell violently aside in moving be- tween Tell and Wilson. The Hearing Examiner found that "when he [Camp] arrived at the left corner of the counsel table, Camp may well have pulled Tell slightly to one side, if that was necessary in order to pass Tell." The General Counsel contends that Camp violently jerked Tell out of the way to place himself in a position between Tell and Wilson to permit an assault upon Wilson. 5. As to whether Camp moved from his chair to the bench without pausing before striking Wilson. The Hearing Examiner found in sub- stance that an interlude of time intervened between Camp's arrival at the bench and the assault. The General Counsel contends that Camp rushed to the bench and assaulted Wilson without pausing at the bench. ' Kent explained that he thought that Wilson 's statements in question would have been more appropriate had they been reserved for oral argument at the close of presentation of all the evidence. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. As to what was said just before the assault. The Hearing Exam- iner found that both Camp and Wilson said more than what is re- flected by the Ohio Oil transcript. That transcript shows that the last 'statement made before the assault was Camp's, and that he then stated : "We object to this continually trying to-." The Hearing Examiner found that the remaining portion of Camp's statement was: "impeach the witnesses for the respondent (or impeach the or this witness) on immaterial matters and the repeated statements that the witnesses for respondent are not telling the truth." The Hearing Examiner further found that Wilson made the following rejoinder to Camp's statement : "They have been lying all the way through." The General Counsel principally takes the position that Wilson did not make any rejoinder and that Camp struck Wilson before Wilson had an opportunity to answer Camp. 7. As to whether Camp attempted to kick Wilson. The Hearing Examiner found that Camp did not attempt to do so. The General Counsel contends that Camp kicked his feet at Wilson in an effort to strike him. 8. As to whether Trial Examiner Kent criticized Wilson for state- ments that he.made to Camp. Just after the assault occurred, accord- ing to findings of the Hearing Examiner, Kent stated : " . . ' both of them (Camp and Wilson) were out of line and that Mr. Wilson was out of line on remarks he had addressed to Mr. Camp. . . . I don't think you (Wilson) are entirely in the clear." The General Counsel contends that Kent made no such statements or, if he did, they were made outside Wilson's hearing during a recess. 9. As to the extent of Wilson's injuries. In his report the Hearing Examiner referred to Wilson's testimony as to his injuries and to a photograph, taken after the assault, showing the appearance of Wilson's injured eye, and found that Wilson suffered injuries of a temporary nature. The General Counsel contends that the Hearing Examiner did not make complete findings as to the extent 'of the injuries 16 No useful, purpose would be served by restating the conflicting testi- mony contained in the record as to the matters referred to above. In substance, it is fully and accurately set forth in the Hearing Exam- iner's Report. Suffice it to say that our review of the entire record persuades us that his findings as to these matters are supported by a preponderance of the evidence. We therefore adopt the Hearing Examiner's findings of fact .and conclusions. The Respondent has excepted to the Hearing Examiner's Report and rulings on the following grounds- 11 We find that Wilson sustained the injuries set forth above in our summary of the facts. JOHN L. CAMP 61 1. To the Hearing Examiner's exclusion of the Respondent's offer of evidence concerning Wilson's conduct in trials other than in the Ohio Oil case. The Respondent asserts that the purpose of such offer was to establish that Wilson habitually conducted himself in a manner de- signed to be provocative to opposing counsel, and that such evidence was admissible in view of the fact that the General Counsel opened, up such line of inquiry on direct examination of Wilson. However, the General Counsel did no more than inquire of Wilson as to the general nature of his legal experience and did not interrogate him as to the details of Wilson's performance as a lawyer in cases other than Ohio Oil handled by him. What the Respondent sought to do here was to read unspecified portions of a transcript in another Board case, Cummer-Graham, 90 NLRB 722, in which Wilson appeared as the General Counsel's representative. We conclude that the Hear- ing Examiner properly ruled that Wilson's conduct in an unrelated proceeding was collateral to the issues of the instant 'case and was immaterial. 2. To the Hearing Examiner's failure to find that a Federal Grand Jury, empanelled in El Paso, Texas, after an investigation to deter- mine whether Camp should be indicted for violation of the criminal provisions of Section 12 of the Act, returned a "no true" bill. The Hearing Examiner's failure to make such a finding was proper. This proceeding is not concerned with a violation of the Act, civil or criminal. There is no showing as to what evidence was presented to the Grand Jury. In any event, the findings of a Grand Jury would not be binding upon the Board. Concluding Findings 1. As to whether the assault was aggravated The petition for the order to show cause alleges that "Respondent approached Wilson from behind, jerked him around by the shoulder and, without warning, punched Wilson in the eye, knocking him to the floor and was attempting to punch him and kick him, when he was physically restrained by his associate counsel, Mr. Tell, and one of the Board's witnesses, Mr. Davidson." The petition, further alleges that the "aggravated nature of the conduct complained of calls for the use of the most effective measure of protection to prevent its repetition." In addition to finding that Camp struck the initial blow, the Hear- ing Examiner found that Camp, as he admitted in his testimony, "hit (Wilson) squarely in the eye" while Wilson lay flat on his back, but that Camp did not kick Wilson or attempt to do so. We have adopted these findings. On the basis of the foregoing, we conclude 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the assault, committed in the course of a quasi-judicial proceeding, was of a serious-nature and thus aggravated in character. 2. As to whether the assault was premeditated The General Counsel contends that the assault was premeditated and for the purpose of interfering with the ordinary processes of the Board. The Hearing Examiner accepted Camp's testimony that he "utterly and completely lost control of" himself when Wilson made the accusation that Gwilliam and Bascom had been lying "all the way through." . The General ,Counsel relies on the following contentions to show that Camp planned the assault in advance : (1) Camp requested a recess with the idea of attacking Wilson outside the courtroom; (2) "Camp rushed from his chair ... without slackening at any point, or (without) any pause even at the judge's bench," to assault Wilson; and (3) about a half hour after the assault, Tell told Camp to "take a walk and cool off." As indicated above, the Hearing Examiner concluded that Camp "did not act upon any predetermined design," but the assault oc- curred, as Camp claims, in a momentary loss of temper. In rejecting the contention that Camp asked for a recess in order to assault Wilson outside the courtroom, the Hearing Examiner reasoned that "If Camp was harboring a design to assault Wilson with the calm calculation of executing same outside, the courtroom during a recess, he undoubt- edly could have continued to restrain himself and await the recess the Trial Examiner had said would be taken after the arguments on Tell's objection had been heard." The Hearing Examiner rejected the second contention on the ground that the evidence overwhelmingly showed that Camp did not rush from his chair to the bench and assault Wilson without slackening at any point or pausing at the bench. As to the third contention, the Hearing Examiner stated that he attached "no retroactive implication" to Tell's suggestion that Camp "take a walk and cool off" and that he did not see how the suggestion tended "to indicate a predetermined evil intent on Camp's part to assault Wilson." We conclude, as did the Hearing Examiner, that the record does not establish that the assault was a premeditated act. 3. Did Wilson provoke the assault by misconduct? According to the Hearing Examiner's findings, "even before the hearing commenced and as it progressed considerable feeling and re- sentment, developed between ... Wilson and Camp.... By the sixth day (the day of the assault) there was undoubtedly a strained JOHN L. CAMP 63 and tense atmosphere and tempers were edgy." In effect, the Hear- ing Examiner found that Wilson contributed to this atmosphere by having engaged in the following : 1. Before the hearing, Wilson accused Camp of resorting to a sub- terfuge to obtain copies of written statements made by company supervisors. 2. On the first day of the hearing, Wilson refused a request to stipulate that the complaining union had not complied with the filing requirements of the Act, although, to the knowledge of company Counsel, Wilson had so stipulated with respect to the same union in a prior case. 3. On the second day of the hearing, Wilson charged that the Com- pany had resorted to "the device of lying" in perpetrating the unfair labor practices charged. 4. On the second day of the hearing, Wilson accused Tell, Camp's cocounsel, of resorting to a "trick question" in asking`a Board witness whether he had discussed his testimony with anyone before taking the stand.' 5. On the fourth day of the hearing, Gwilliam, a company witness,. accused Wilson of sneering at him IT 6. On the fourth day of the hearing, Wilson charged that "this story (of a Company witness) that they (the two dischargees) were told (why they were being discharged at the time of their dismissal) is a concoction created, fabricated, after the charge was filed." 7. On the fifth day of the hearing, Wilson accused Camp of having made misstatements, which Camp denied. 8. On the fifth day of the hearing, Wilson warned Bascom, a Com- pany witness, not to look at counsel before answering a question on cross-examination, to which Camp objected. 9. On the fifth day of the hearing, Wilson delayed complying with Trial Examiner Kent's direction to submit a certain document to opposing counsel. As to alleged provocation, the General Counsel contends in the main that Wilson did no more than attack the credibility of opposing witnesses, that his comments were largely evoked by Trial Examiner Kent's inquiries as to the materiality of questions propounded by Wilson, and that it was proper for Wilson to attack the credibility of the witnesses even though they happened to be personal friends of Camp. We agree that Wilson was entitled to attack the credibility of opposing witnesses; and we find that Wilson did little, if anything, to warrant censure. It may also be noted that Camp's conduct, even 1'7 Wilson denied sneering. The Hearing Examiner made no finding as to whether Wilson sneered. On the basis of the evidence in the record, we find that Wilson smiled but did not sneer. 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before the assaultwas admittedly not exemplary. He specifically admits that he resorted during the hearing to the use of "cutting re- marks." In any event, while it is clear that Camp resented Wilson's conduct, as the Hearing Examiner stated and as the Respondent ad- mits in substance, "no justification is, or can be asserted" in defense of Camp's physical assault upon Wilson. The Remedy In his brief the Respondent cites cases holding that an attorney may not be disbarred because of an assault under circumstances not showing that he is unfit to practice law. These cases are inapposite, as the misconduct therein involved does not appear to have occurred in the course of a judicial or administrative proceeding. Moreover, these cases are in any event not in point, because the instant proceeding is not a disbarment proceeding. Camp's license to engage in the general practice of law is not at stake. The issue here is whether, and to what extent, Camp's privilege to practice before this Board should be affected because of his serious misconduct in a Board proceeding. As already stated, this Board has the authority, and the duty, to protect its proceedings and the public interest against conduct of the character here found. While we have determined not to impose the penalty of permanent disbarment from practice before this agency, the Board cannot condone Camp's shocking behavior. Although Camp was angered by Wilson's trial technique and the assault was the result of a sudden loss of temper rather than a premeditated act, Camp's misconduct nevertheless was wholly unbecoming to an attorney and showed a lack of proper respect for the Board's agents and its processes. Quasi-judicial hearings before a Federal administrative body or its agents, no less than court proceedings, must be conducted with dignity and decorum to enable the agency to discharge in proper and orderly fashion the functions entrusted to it by Congress. We find that Camp's assault upon Wilson interfered with the Board's processes and impeded the dis- charge of its functions. Conduct of such character should not and will not be tolerated. In determining what disciplinary action to take, we have considered the following facts : (1) That Camp has been disciplined in part by his exclusion from further participation in the Ohio Oil case; and (2) that he had a good reputation as a member of the legal profession before the assault. Under all the circumstances, in order to effectuate the policies of ,the Act, we shall suspend Camp from the privileges of practicing before this Board or its agents for a period of 2 years from the date of our order herein. JOHN L. CAMP Order 65 The National Labor Relations Board hereby orders that the Re- spondent, John L. Camp, be, and he hereby is, barred and 'prohibited, directly or indirectly, from practicing or appearing before this Board as counsel, attorney, representative, or agent (of record or otherwise) for any person having any official business to conduct with this Board, or from aiding or assisting any person in the preparation, prosecu- tion, or defense of any matter or proceeding before this Board, or before any Regional Office or agent of this Board, for a period of 2 years from the date hereof. MEMBER REYNOLDS, dissenting in part : While I agree, for the reasons stated in the principal opinion, that Camp's assault upon Wilson interfered with the Board's processes and impeded the discharge of its functions, I believe that suspension for an extended period from the privilege of practicing generally before the Board is too harsh a remedial measure. Several factors tend to mitigate the need for such severe disciplinary action. The Hearing Examiner concluded, and the Board unanimously agrees, that Camp "did not act upon any predetermined design," but that the assault occurred in a momentary loss of temper. The assault therefore was not premeditated. Just after the assault occurred, according to findings of the Hearing Examiner, Trial Examiner Kent stated ". . . both of them (Camp and Wilson) were out of line and that Mr. Wilson was out of line on remarks he had addressed to Mr. Camp. . . . I don't think you (Wil- son) are entirely in the clear." The assault therefore could not be said to be entirely unprovoked. Evidence adduced at the hearing emphasized, as found by the Hear- ing Examiner, that Camp is an attorney who is esteemed for his competence and integrity as a member of the bar of the State of Texas, and that his reputation as a law-abiding and peacefully disposed citizen is unimpugned. In view of these circumstances, which by no means make Camp's act defensible, I am convinced that too great a stigma would attach to Camp's suspension from practice before the Board for the prolonged period imposed by my colleagues. In my opinion, the barring of Camp from further participation in the Ohio Oil case provided a sufficiently corrective remedy. MEMBER HOUSTON, concurring specially : While I agree, for the reasons stated by my colleagues, that disci- plinary action must be taken against Camp, I am of the opinion that my colleagues have shown unwarranted leniency in remedying the situation. 66 DECISIONS OF NATIONAL LABOR'RELATIONS BOARD The gravity of the misconduct and its shocking nature persuade me that Camp should be suspended from the privilege of practicing before the Board or its agents for a period of 5 years from October 26, 1949, the date of his offense against this Board, its agents , and its processes. With all other findings and conclusions of my colleagues of the majority, I agree. Hearing Examiner's Review of the Evidence in a Hearing Upon the General Counsel's Petition and Respondent's Answer Thereto in the Above-Entitled Matter, With Findings of Fact and Report to the Board 1. CHRONOLOGY On November 4, 1949, the General Counsel of the National Labor Relations Board filed with the Board a petition requesting that the Board enter "an order directing John L . Camp," an attorney, designated as Respondent , "to show cause ... why he should not be barred from further practice before" the Board. A condensation of the petition follows: (1) Respondent, J. L. Camp, is one of the attorneys of record for The Ohio Oil Company in a National Labor Relations Board proceeding entitled The Ohio Oil Company, Case No. 16-CA-128, now being heard by Trial Examiner Henry Kent in Rankin, Texas. (2) "On October 26, 1949 , during the course of" said hearing, Respondent Camp, "without provocation, brutally assaulted E. Don Wilson, the attorney presenting the case for the General Counsel." a. That the circumstances of said assault "briefly stated" are : "that as Attorney Wilson was leaning over the front of the bench with Respondent's associate attorney, one Tell . . . addressing an argument to the Trial Examiner concerning the admissibility on certain testimony, which he was seeking to elicit from a witness upon cross-examination Camp approached Wilson from behind, jerked him around by the shoulder, and, without warning, punched Wilson in the eye knocking him to the floor ; whereupon Camp pounced upon Wilson on the floor and was attempting to punch him and kick him, when he was physically restrained by his associate counsel, Mr. Tell and one of the Board's witnesses Mr. Davidson." (3) "For the protection of its procedure and the interests of those appearing before it, the Board has the power to require all persons participating in or attending its proceedings to observe the decorum traditionally required in judicial and quasi-judicial proceedings. At the very least this embraces the power to prevent the obstruction of, and interference with , its proceedings by unlawful acts of force and violence." (4) "As shown in paragraph 2, above , the conduct complained of here was an unprovoked brutal physical assault upon -opposing counsel made in open court. The aggravated nature of the conduct complained of calls for the use of the most effective measure of protection to prevent its repetition . Only by denying ,espondent the right further to practice before the Board can the risk of further interference with, and obstruction of, Board proceedings on his part be elim- yinated." "Wherefore, the General Counsel prays for the entry of an Order directing John L. Camp, Respondent to show cause why he should not be barred from further practice before the Board." Under date of November 25, 1949, the Board ordered that Respondent show' cause in writing, under oath, on or before December 8, 1949, why he should not JOHN L. CAMP 67 be barred from further practice before the Board or why the Board should not take other appropriate disciplinary action because of the conduct alleged in the General Counsel's petition for order to show cause. On December 8, 1949, the Board extended the time for Respondent to reply to its said order of November 25, 1949, to December 16, 1949, and on that date Respondent filed a motion to dismiss the petition of the General Counsel and discharge the Board's order to show cause averring that said petition fails to state a claim upon which the relief proposed by the order to show cause or any other relief can be granted. Under date of January 5,.,1950 , the Board granted the General Counsel leave to file a memorandum , in opposition to Respondent's . motion to dismiss on or before January 13 , 1950, and such memorandum was filed by the General Counsel on January 12, 1950. On January 26, 1950, "having duly considered" Respondent's motion to dismiss and the matter in opposition thereto filed by the General Counsel, the Board "determined to reserve ruling on the motion to dismiss at this time ; and Respondent having requested that the Board fix a time within which Respondent is to answer the petition herein" it was ordered that Respondent file his answer to the petition on or before February 6, 1950. On January 30, 1950, Respondent filed a motion for "reconsideration" and "withdrawal" by the Board of its order of January 26, 1950 , and requested the Board "to decide" Respondent's motion to dismiss the General Counsel's peti- tion. The Board ruled on this motion on January 31, 1950, and ordered "that the order of the Board dated January 26, 1950, be , and it hereby is vacated . . . and Respondent's motion to dismiss the General Counsel 's petition . . . is denied, without prejudice to the right of Respondent to renew his motion to dismiss and request oral argument thereon, after he files response to the order to show cause issued by the Board on November 25, 1949." It was ordered that such "response" be filed on or before February 10, 1950. A motion to strike certain portions of the General Counsel's petition was sub- mitted by Respondent on February 6, 1950 , and denied by the Board on February 8, 1950. On February 9, 1950, Respondent filed his answer and simultaneously certain motions. Under the caption of "First Defense " the answer avers : "The Petition for Order to Show Cause . . . and the Board's Order to Show Cause, dated Feb- ruary 25, 1949, fail to state a claims against Respondent upon which relief can be granted." By his "Second Defense" Respondent "denies that during the course of the hearing (in the Ohio Oil Company case ) Respondent without provocation, brutally assaulted E. Don Wilson ," and avers that, "In this connection .. . he struck Wilson while he and Wilson were engaged in an affray " which "was provoked by Wilson" and,"denies that he at any time kicked or attempted to kick Wilson." Further Respondent "denies that the circumstances of the affray fully appear in the portion of the transcript attached to the Petition ." He also "denies that Wilson was severely injured in the affray ." As a "Third Defense," Respondent states, that for more than 20 years he "has been a member in good -standing" of the Texas bar; that he is a "law-abiding citizen and has never been cited or held for contempt of any court , or any judicial or quasi-judicial body" ; "that throughout the proceedings . . . E. Don Wilson abused and insulted the witnesses appearing for The Ohio Oil Company and otherwise conducted himself contumaciously and in a manner unbecoming to an attorney representing the United States Government or any other client" and that by such conduct Wilson "provoked an affray in the course of which Respondent struck E. Don Wilson " In conclusion the answer states that "in the premises" Respondent 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "should neither be denied the right further to practice before the Board nor subjected to any further disciplinary action" and prays the Board to dismiss the petition and discharge the order to show cause. ' Concurrently with the filing of his answer Respondent, on February 9, 1950, submitted two motions. The first points out that by his answer and his "first defense" he renews his motion to dismiss the General Counsel's petition and dis- charge the Board's order to show cause because same "fail to state a claim against Respondent upon which relief can be granted," and referring to the Board order of January 31, 1950, he renews his request that the Board recon- sider his motion to dismiss the petition and discharge the order to show cause and allow oral argument to be held thereon. The second motion was that the Board "set this matter down for a hearing and the taking of testimony on the petition and Respondents Answer . . . at an early date " On February 17, 1950, the Board entered the following order : Respondent having filed with the Board an answer to the order to show cause . .. and it appearing to the Board that a hearing to take testimony on the allegations of the General Counsel's petition and Respondent's answer is necessary to determine the facts, It Is Hereby Ordered that a hearing be held to take such testimony at a time and place to be fixed by the Chief Trial Examiner before a hearing officer to be designated by the Chief Trial Examiner The hearing officer shall file with the Board and serve upon respondent and the General Counsel a statement of findings of fact relating to the allegations in the General Counsel's petition and the respondent's answer. Ruling on all other motions made by the respondent and the General Coun- sel is hereby reserved. [Emphasis supplied.] Under date of March 9, 1950, Respondent withdrew his motion for a hearing and thereafter on March 14, 1950, the Board entered the following order : The Board having issued an order'dated February 17, 1950, directing that a hearing be held- and reserving ruling on various motions made by the Respondent and the General Counsel; counsel for the respondent having filed a document dated March 9, 1950, withdrawing his motion for hearing and requesting the Board to abandon the proceeding ; and the Board having considered the matter; therefore, It Is Hereby Ordered, that the Board's order of February 17, 1950, be, and it hereby is, affirmed, inasmuch as the Board's determination to take testi- mony on the allegations of the General Counsel's petition and the respondent's answer was not wholly dependent upon the respondent's desire for a hearing, and as the document filed by the respondent dated March 9, 1950, raises no new matters which were not hitherto considered by the Board. On February 17, 1950, the Board issued its order directing that a hearing be held at a time and place to be fixed by the Chief Trial Examiner. Pursuant thereto, William R. Ringer, the Chief,Trial Examiner for the Board, on March 15, 1950, issued a "Notice of Hearing" fixing the time of the hearing to be con- ducted by a duly designated Trial Examiner of the Board, as March 23, 1950, and the place as the courtroom, county courthouse, Rankin, Texas. The notice of hearing was duly served upon Respondent, the General Counsel, and all at- torneys of record in the matter. Thereafter, on March 17, 1950, pursuant to the Board's said order of February 17, 1950, authorizing and directing him to desig- nate a Hearing Examiner to conduct such hearing, William R. Ringer, Chief Trial Examiner for the Board, issued an order designating me, Charles L. Fergu- son, a Trial Examiner for the Board, as Trial or Hearing Examiner to conduct JOHN L. CAMP 69 the hearing ordered by the Board and to perform the duties and exercise all the necessary powers in that connection. - The Respondent in the meantime had filed a suit in the United States District Court for the District of Columbia seeking to enjoin the Board from proceeding to hear and determine this matter . Pursuant to agreement of respective counsel and "in view of the pendency " of the suit in the United States district court I, on March 21 , 1950, issued an order "indefinitely" postponing the hearing, thereto- fore set for March 23, 1950 , with the reservation that same might be reset upon 10 days' notice. On June 13 , 1950, Judge Tamm of the United States District Court for the District of Columbia , issued his decision in the pending suit against the Board and granted the Board 's motion to dismiss plaintiff's complaint . John L. Camp v. Paul M. Herzog, et al., No. 1227-50, 26 LRAM 2379. On July 17, 1950, Judge Tamm signed an order dismissing the complaint, whereupon , on July 18 , 1950, I issued a notice of hearing fixing the date of hearing as September 19, 1950, and place as the courtroom , county courthouse, Rankin, Texas, which notice of hearing was duly served upon all parties in interest. Camp, plaintiff in the suit in the district court, Respondent herein, took an appeal, on July 27, 1950, to the United States Court of Appeals for the District of Columbia from the final judgment of the district court dismissing his com- plaint, and thereafter filed with me a motion for a continuance of the hearing, then set for September 19, 1950, "until after the appeal is disposed of." On Sep- tember 18, 1950, I issued an order denying Respondent 's motion for an indefinite continuance of the hearing pending the outcome of the said appeal but at the request, and by agreement of, respective counsel I postponed the date of hearing to October 17, 1950, and fixed the place of hearing as the United States court- house at Fort Worth, Texas , with the proviso that "after the taking of such testimony as the parties or any of them desire to present at said time and place, said hearing will be adjourned to Rankin , Texas, and/or to such other times and places as the requirements for taking the testimony and the convenience of the parties may necessitate." This order and notice resetting the time and place of hearing was duly served upon all the parties in interest and attorneys of record. On September 29, 1950, Camp petitioned the United States Court of Appeals for the District of Columbia for a temporary injunction . The Court denied the petition on October 16, 1950. Pursuant to notice given as aforesaid , the hearing commenced at the United States district courtroom at Fort Worth, Texas , on Tuesday, October 17, 1950, continued there through Thursday , October 19 , and was then adjourned to Abi- lene, Texas , where testimony was taken on Friday , October 20. On Monday, October 23, the hearing was resumed and continued at Rankin , Texas, through Tuesday, October 24. The hearing was completed and closed with the taking of testimony at Washington , D. C., on November 10, 1950. The General Counsel and the Respondent were represented at the hearing by counsel who participated in the hearing throughout. The parties were afforded full opportunity to be heard, to produce, examine, and cross-examine witnesses , and to introduce evi- dence bearing on the issues framed by the petition and answer . At the conclu- sion of the evidence counsel were afforded opportunity to present oral summa- tion and argument on the record but elected to waive same and submit an analy- sis of the evidence and argument thereon in the form of written memorandums. Leave was granted to file same on or before November 27, 1950. Thereafter the time was extended to December 4, 1950. Counsel for the General Counsel and for Respondent each duly filed a written memorandum and same have been examined and considered. 974176-52-vol. 96--6 - 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE HEARING EXAMINER'S REVIEW AND ANALYSIS OF THE EVIDENCE The Board's order of February 17, 1950, that a hearing be held and that the Chief Trial Examiner designate a Hearing Examiner to conduct same directs that the Hearing Examiner so designated "file with the Board and serve upon Respondent and the General Counsel a statement of findings of fact relating to the allegations in the General Counsel's petition and the Respondent's answer." In conforming with this direction of the Board I submit the following review and analysis of the evidence which I deem necessary to an understanding of the situ- ation, attitudes of counsel, and the atmosphere which developed and existed in the course of the hearing in the Ohio Oil Company case, also as demonstrating the bases for the factual inferences which I make and as bearing on my resolu- tion of questions of accuracy, apparent conflict or credibility which arose, and my determination and finding as to what occurred or was said or done at various times concerning which the testimony is in conflict. When reference is made to the transcript in this proceeding the page of the -transcript will be cited merely as "Tr." with page number or numbers following. References to the transcript in The Ohio Oil Company, Case No. 16-CA-128,' will be cited as "OTr." with page number following. A. Edmond Donald Wilson Wilson was born in Brooklyn, New York, January 14, 1910, and lived in the New York City area until January 1948, when he went to Fort Worth, Texas, as an attorney for the National Labor Relations Board. At the time of the hearing in the Ohio Oil Company case Wilson was 39 years of age. He attended Our Lady of Victory Academy and high schools in Brooklyn, received an A. B. degree at Fordham University in 1931, and a law degree at Columbia University Law School and was admitted to the bar of the State of New York in 1934. Upon graduation from the law school he was selected as law clerk to the senior judge of the United States Circuit Court of Appeals for the .Second Circuit in which position, as was the custom, he served 1 year. In September 1935, Wilson entered the private practice of law in New York City and continued in the private practice there until October 1942. During this period he engaged in the "general practice" of the law. He referred specif- ically to 4 cases in the United States District Courts of the State of New York "involving a conspiracy to overthrow the Government . . . the shortest of which was about six weeks and the longest more than three months," in which he participated as an attorney for one or more of the defendants. In one of these cases he represented 2 of the 20 to 30 defendants and in another "two defendants out of eleven." In 1942, his application for enlistment in the Navy having "been turned down, after a physical examination," Wilson was appointed as an attorney in the OPA regional office in New York City. His work there had to do with enforce- ment of rent controls. His duties in this connection did not require much, if any, "actual trial work." In January 1944, he transferred to the New York regional office of the WPB as a regional compliance attorney in charge of criminal prosecutions. Here his duties involved "analyzing cases" and making recommendations to the regional attorney as to what cases should be referred to the United States district attorney for his action and then assisting the district attorney in the preparation of such cases for submission to a grand jury. If an indictment was returned he on occasion attended the trial and assisted the district attorney, although he did not participate in the trial of the case. JOHN L. CAMP '71 Wilson left the WPB in December 1946, and returned to the private practice of law in New York, and was thus engaged in a limited way during 1947. In January 1948 , he was appointed as a field attorney for the National Labor Relations Board and assigned to the Sixteenth Regional Office at Fort Worth, Texas. There he represented the General Counsel in the preparation and trial of complaint cases before Trial Examiners of the Board and also at times acted as a hearing officer in representation cases. Among the complaint cases mentioned in which Wilson appeared on behalf of the General Counsel, while a member of the legal staff at the Fort Worth office, are : Postex Cotton Mills, Inc., 80 NLRB 1187; Sidran Sportswear, 81 NLRB 270; Seamprufe, 82 NLRB- 892; Quarles Mfg. Co., 83 NLRB 697; American National Insurance Co., 89 NLRB 185; Cummer-Graham Co., 90 NLRB 1607; and The Ohio Oil Company, 92 NLRB 1561. In January 1950 Wilson was transferred to the Fourth Regional Office of the National Labor Relations Board at Philadelphia, where as a member of the legal staff he continued to represent the General Counsel in the preparation and trial of complaint cases. He has since been and is now stationed at that office. The transfer to Philadelphia was in no way the result of the situation which developed in the trial of Ohio Oil Company case. It was in fact in the nature of a promotion to a higher salary classification . Wilson had made application for the transfer in the summer of 1949, before the hearing in the Ohio Oil Com- pany case in October 1949 , and the transfer was finally approved in November 1949. Wilson testified that, in his law practice in New York, over the periods men- tioned, he was "never at any time . . . disciplined or chastised , so to speak, by any judge, Federal or State, for" his "demeanor or anything which" he "did during the course of a trial" ; that in the trial of the National Labor Relations Board complaint cases "no Trial Examiner has ever reprimanded" him "from the bench for actions unbecoming a lawyer" ; that he has "never been repri- manded for anything at any time in any tribunal" ; and that as he looks back over his career at the bar he believes that he has conducted himself, in the trial of cases, in accordance with proper decorum and the standards expected of an attorney. B. John L. Camp Camp was born on a Dallas County, Texas , farm on January 4, 1903, and was 46 years of age at the time of the hearing in the Ohio Oil Company case. He attended the public schools and took his last year of high school work and first year of college at John Carleton Agriculture College, at Stephenville , Texas. He then attended Hardin-Simmons University at Abilene , Texas, for 3 years and received an A. B . degree from that University in June 1924 . In his last year at John Carleton and throughout his 3 years at Hardin - Simmons he played football as a regular member of the college teams. He won wide acclaim as a star foot- ball player and acquired the nickname of "Bullet Camp " which was adopted by his fellow students and the townspeople generally and used by the newspapers of West Texas in recounting his feats on the football field. While he was still attending Hardin-Simmons he married and upon gradua- tion in June 1924 made his home in Abilene, finding employment as a salesman -with a real estate, loan , and insurance company in Abilene. He continued at this employment until sometime during the summer of 1927 when he commenced the study of law under the guidance of his father-in-law, Judge Pannill , a promi- nent Texas lawyer and a former chief justice of one of the appellate courts of :that State. Camp then taught school 1 term during which time he continued 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his law studies and in the summer of 1928 entered the University of Texas Law School. In May 1929 he passed the State ( Texas ) bar examination and was licensed to practice law in the State of Texas . He said that "being married and having a child" he did not stay in law school to get his degree but "went to Abilene and started practicing law." He immediately formed a law partnership with an Abilene lawyer, Judge Lee R. York,' and they carried on a general prac- tice of law under the firm name of York and Camp He continued with Judge York until January 1, 1933, when he became county judge of Taylor County, of which county Abilene is the county seat. Camp had been elected to that office in the election of 1932. In the approximately 31/2 years prior to becoming county judge during which he had engaged in the general practice of law he tried vari- ous types of cases, mostly civil actions, and most of his work was trial work. He tried cases in the district court of Taylor and nearby counties, also in the United States district court He estimated that during this period he "actually tried 150 to 200 cases," that about half were in the district court, a few were in the United States district court, and the others in justice of peace and county courts. During that time he handled 12 or 13 cases in the court of civil appeals. A county judge is permitted to practice law in the district courts or the county courts of other counties However, the duties of the office were so heavy that while serv- ing as county judge, Camp's practice of law was very limited although he did try some cases in the District Court of Taylor County and in the district and county courts of nearby counties. The term of county judge is 2 years. Camp was elected county judge 3 suc- cessive times, at elections in 1932, 1934 , and 1936. He served 2 full terms, 1933 to 1936, both inclusive, and until about May 1937 of the third term when he resigned to accept the position he has since held as a member of the legal staff of The Ohio Oil Company at its Houston , Texas , division office. In counties "the size of Taylor" (population approximately 42,000) the county court has jurisdiction "over all probate matters," will contests, and guardianships , "crimi- nal cases of the grade of misdemeanor ," appeals, both civil and criminal, from justice of the peace and municipal courts, and "original civil jurisdiction" where the amount involved does not exceed $1,000. In addition the county court has juvenile jurisdiction and the county judge is the judge of the juvenile court. The pertinancy of the following rather detailed statement of Camp's acquain- tance and relationship with R. C. Gwilliam will later appear . Back in the early thirties, after Camp had entered on the practice of law at Abilene, The Ohio Oil Company was engaged in litigation over a long period of years, involving boundar- ies in the Yates Field. These cases were first tried in the District Court of Pecos County adjoining Taylor County. At that time R. C. Gwilliam was General Counsel for The Ohio Oil Company Gwilliam was not a Texas lawyer. Camp's father-in-law, Judge Pannill, heretofore mentioned , a Texas lawyer with offices at Fort Worth. was retained to represent the Company in this litigation. While this was in progress Judge Pannill in travelling to and from the District Court of Pecos County, frequently stopped at Abilene for short visits with his daughter, grandchild , and Camp. He was ofttimes accompanied on these visits by Gwilliam who thus first became acquainted .with Camp. In 1937 Gwilliam was made vice president of the Company and was placed in charge of its Houston division office at Houston, Texas. Upon taking over the position , Gwilliam wrote Camp offer- ing him an attorney position on the legal staff of the Company at its Houston division office. Camp said the "proposition was so attractive I couldn't turn it. down." He thereupon resigned from the office of county judge, moved to Houston 1 Judge York now resides at Hobbs , New Mexico. I JOHN L. CAMP 73 and has since been, and is now, employed as an attorney at the Houston division office. Since going to Houston with the Company in 1937, Camp , in his capacity as an attorney for the Company, has had almost daily business and professional contacts and conferences with Gwilliam and during that time Gwilliam has "raised" Camp's salary "on ten or fifteen different occasions." Camp and Gwil- liam are not only business associates but "close personal friends" and Camp has a high regard and great respect for Gwilliam. Camp's work as an attorney for the Company was varied . The office work consisted of examination of titles , drafting contracts , and advising department beads on legal matters including Anti-Trust Laws and tax rulings. With Camp's advent there were 3 lawyers in the Houston office, Orn, Camp , and a young man named Hastings. From the time he joined the staff in 1937 until sometime in 1942 Camp tried "about 15 cases" in which the Company was defendant, work- men's compensation, damage, and land title suits. Sometime in 1942 Hastings joined the Navy and did not return and since that time Orn and Camp have handled the legal business of the Houston office. After Hastings left, Camp "stayed at the office practically all the time and just did office work ." There were only "two or three" cases tried after 1942 and prior to the National Labor Relations Board hearing in the Ohio Oil Company case and Orn handled them. When the charge in the Ohio Oil Coiapany case was received by the Company Camp was delegated to investigate the matter , and when the complaint was issued lie was assigned to prepare the case for hearing and to have primary responsibility in the representation of the Company at the hearing. Camp said that case was the first "administrative case" in which he had ever appeared. The testimony of lawyers who had known Camp intimately and well over the whole period of his career as a lawyer, some having known him since his college days, was that Camp's professional and personal reputation and conduct is above reproach. J. R. Black, judge since 1944 of the Forty-second judicial district of Texas, which includes Taylor County (Abilene, county seat) had been district attor- ney for 14 years next preceding his election as judge of the district court. Judge Black stated that: ( 1) He had been well acquainted with Camp since Camp began the practice of law at Abilene ; (2) he and Camp had tried some "hotly contested" cases as opposing counsel and that he had "observed" Camp in the trial of cases in which he (Black) was not a participant; (3) Camp's reputation for professional "competence" and "integrity" was "extra good" ; (4) Camp's "deportment" at all times "conformed" to that to be expected of an attorney; (5) he had never heard of Camp engaging in "any physical violence with any other person either in or out of the courtroom" other than the incident occurring in the Labor Board hearing ; and (6 ) he never heard of Camp hav- ing a reputation for being a "high-tempered " man and always considered him as a "quiet and even tempered man either in or out of Court." Dallas Scarborough, the patriarch of the Taylor County (Abilene) bar, has been actively engaged in the general practice of law in that county for over 45 years and has tried more cases than "any other" member of that bar. He has known Camp since Camp 's student days at Hardin-Simmons. Scarborough was the first football coach at Hardin-Simmons back in 1905-07, when Camp was still a child of 2-4 years of age. Scarborough 's interest in the game continued through the years and when Camp was playing football at Hardin -Simmons Scarborough became well acquainted with and interested in him and has known Camp "pretty well ever since." He said Camp acquired the nickname of "Bullet Camp because of his speed and the way he hit the line and drove right on through." Scarborough said: "I imagine I probably tried more cases against 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him (in which Camp was opposing counsel) than any other" member of that bar and "I never saw Johnny Camp do anything in the Courthouse or out of the Courthouse that was in the slightest unbecoming to a gentleman ... I can't think of a single solitary instance where he ever showed any display of ugly temper ... I don't think I ever knew of him being ugly ... I don't think I know a finer young man anywhere or a finer chap than Johnny Camp." John H. Alvis has been a member of the Texas bar and practiced law at Abilene for over 25 years. He was a "next door neighbor" to Camp when Camp lived in Abilene and was practicing law there. Alvis said he had tried some "pretty hotly contested cases" in which Camp was opposing counsel and that he had "never seen him (Camp) flare up or do anything improper in the Court- room or out of the Courtroom" nor "do anything else out of the way for a law- yer." Alvis further said that Camp's "professional conduct has always been of the very highest type" and that Camp's reputation for integrity, honesty, and professional competency was "Excellent." T. J. McMahon, a Texas lawyer for over 30 years, has practiced law at Abilene for over 25 years. When he came to Abilene in 1925 his "knowledge of Mr. Camp was based almost entirely on his football reputation." After Camp en- tered the practice of law at Abilene, McMahon tried cases in which Camp was opposing counsel and before Camp as county judge. He said he had never "observed" nor ever "heard" of Camp engaging "in any -unprofessional conduct," or engaging "in any physical violence" except the incident in the Ohio Oil Com- pany case. McMahon said Camp was a "successful" and an "aggressive" lawyer, that Camp "played football that way and tried his law suits that way," but he had never noticed Camp "exhibit symptoms of anger at a fellow attorney" in the course of a trial. Omar Burleson, lawyer and a member of Congress, formerly county attorney and county judge of Jones County, which adjoins Taylor County, first knew Camp when Camp was a student and playing football at Hardin-Simmons and knew "his (Camp's) reputation and popularity in school," and thereafter knew Camp as a practicing lawyer and as county judge and has had "frequent contacts and association (with Camp) over the years." Burleson and Camp, as attor- neys, had represented "opposite sides" in cases in the district court of both counties. Burleson said that he considered Camp a man of "very strong charac- ter," that he had never known or heard "of any occasion on which Mr. Camp conducted himself in a manner unbecoming to a lawyer," that Camp's "conduct and decorum compared favorably with that of other members of the bar," that he had never observed Camp exhibit "any anger or provocation at opposing counsel" in the trial of a lawsuit, and that based upon his observation of Camp "both professional and non-professionally" he did not regard Camp as "a man of fiery or high temper." Alton D. Chapman, district judge of the One hundred and tenth judicial dis- trict of Texas, in which position he has served for approximately 14 years, en- tered Hardin-Simmons in 1925. Camp had graduated in 1924. Chapman knew Camp's reputation as a football player and through his uncle who "was rather fond" of Camp they became acquainted and became and have since remained fast friends. They were later classmates at the University of Texas Law School. Camp preceded Chapman in the practice and when Chapman first began the practice of law he associated Camp with him in the trial of a number of cases. He has through the years kept in close personal contact with Camp. In addi- tion Judge Chapman said he asked `every lawyer I ever found who practiced where Johnny was about him." Judge Chapman stated that Camp's reputation for "professional conduct is the very highest. I don't know of a lawyer in Texas JOHN L. CAMP 75 whose reputation is higher," and that it had never come to his (Chapman's) at- tention and "I don't think he (Camp) ever has conducted himself in a manner inconsistent with the highest standards of the Bar." George Mahon of Colorado City, Texas, lawyer and representative in Con- gress for the Nineteenth congressional district of Texas, was a student at Hardin- Simmons ' when Camp.attended there, graduating a year before Camp, and has known Camp since 1921. Since graduation from the University of Texas Law School Mahon has practiced law at Colorado City in Mitchell County. There is "only one county between Mitchell County and Taylor County" and Mahon "was frequently in Abilene on business." By a written statement put in evidence by stipulation, Mahon said: "I know John's (Camp) general reputation in Texas ... as to his demeanor and conduct at the Bar, his reputation as a lawyer, and his reputation as to honesty and fair dealing . . . His reputation in all the respects mentioned is excellent." Albert P. Jones, a practicing lawyer of Houston, Texas, and at the present time president of the State bar of Texas, states by affidavit admitted by stipu- lation, that he is "well acquainted with" Camp, that he first knew Camp "in the Law School of the University of Texas where I considered him one of my good friends," that after leaving law school his contacts with Camp "were in- frequent until he (Camp) came to Houston in 1937" since which time he (Jones) has "had numerous contacts with him" (Camp), that he knows Camp's "general reputation in Texas as a peaceful and law abiding citizen, and it is good. His demeanor and conduct as a member of the Bar have been of a high order. The same is true with respect to his reputation for honesty, integrity and fair dealing." On cross-examination the attorney for the General Counsel asked Judge Black and Attorney Alvis each, whether he had heard of Camp having a fight in Abilene with one R E. Davis Each said he had never heard of such an incident. When Camp was on the stand the so-called "fight" with Davis, long since de- ceased, was fully explored by the General Counsel's attorney on cross-examina- tion. It proved to be so isolated, inconsequential, and on the whole so ludicrous as, in my opinion, to be of no moment or significance whatever as tending to show Camp to be a man of rash temperament who is given to resorting to violence, as presumably it was supposed to do. Camp had graduated from Hardin-Simmons and was working at the job of salesman for the real estate, loan, and insurance company in Abilene. He was 21 or 22 years of age at the time of the incident and married and had a child. Davis, a man of about 45 years of age, lived about 2 blocks from where the Camps lived. On this occasion young Camp was talking by telephone from the Camp home to Davis who was at his home about some matter the nature of which is not mentioned. ' Some difference of opinion arose and Camp told Davis that he (Davis) "was acting like an ass" whereupon Davis told Camp that he (Camp) "wouldn't dare to come up in front" of the Davis house and tell him that. Camp, as he expressed it in his testimony, "very foolishly" told Davis he would come up there. Camp went there and found Davis "out in the street in front of the house with a two by four" about "8 feet in length ... on his shoulder." Davis repeated the dare, Camp repeated the language, and Davis "swung at" Camp with the "two by four" which "was too long to be an effective weapon." Camp merely seized the "two by four" and took it away from Davis, whereupon Davis said, "I'll get my gun" and started for the house. At this Camp, for the first time, "grabbed hold" of Davis, who was as large a man as Camp, "and tripped him," Davis fell and Camp got over him and held "both of his (Davis') hands spread out." At that point Mrs. Davis came out of the 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD house and Davis commenced "hollering" to her "to bring him his gun." Mrs. Davis refused and commanded Camp to free Davis. As Davis kept calling to his wife to bring his gun, and she kept refusing but all the while demanding that Camp release her husband, Camp commenced to realize his dilemma. He "couldn't just stay in that position " and he feared that if he released him Davis would get his gun and shoot him before he could get out of range. Camp rea- soned if the gun were a shot gun he might escape but if it were a rifle his chances were not good. Camp described his solution of the matter in this wise, "I didn't know what to do so I just got up and ran home as fast as I could go." Camp did not at any time strike or hit Davis nor did he attempt to do so nor was Davis hurt in the least in the scuffle , nor did Camp at any time have any inten- tion of hurting Davis . Camp looking back over the quarter of a century which has passed since this youthful escapade speaks of his action in accepting the dare and the whole incident as "foolish " and fully admits his mistake in going up to the street to meet Davis who had posted himself there awaiting Camp. This is the only act of violence or near violence in which Camp ever participated other than the assault on Wilson and to my way of thinking falls far short of indicating any trait of character or anything else. On cross-examination of Judge Black , the attorney for the General Counsel inquired if Judge Black knew anything about Camp's "reputation while Juvenile Judge as to his severity on juveniles." Judge Black said that at that time he (Black ) was prosecuting attorney and that if there were any such complaints he "never heard of them " The attorney for the General Counsel then asked Judge Black if he had ever heard that Camp as juvenile judge "approved public whip- pings in the courtroom of juveniles ," to which Judge Black answered that he did not recall any such incidents. The same type of inquiry was made of At= torney Scarborough on cross-examination . Scarborough said he ( Scarborough) had had "a great deal of experience" in the juvenile court, that often "mamas whose kids get into trouble" come to him, and that he handled "a lot of those things in Johnny Camp's Court," and that he had never known Camp doing "anything that would indicate the slightest disposition to be cruel or inhumane or anything of that kind " and that he had never heard of "a public whipping in our Juvenile Court" ( Tr. 384-385). This line of inquiry made of Respondent Camp's character witnesses with the innuendo it carried resulted in lengthy testimony by Camp on direct examination concerning his administration of the office of juvenile judge (Tr. pp. 512-521 inclusive) and an even lengthier cross-examination of Camp upon the same matter by the attorney for the General Counsel ( Tr. pp. 567-584 ). On the direct exami- nation Camp enumerated the problems he encountered as judge of the juvenile court and the handicaps under which he had to work including the scant facilities at his command and his own limitations of which he was conscious . He spoke of his hopes, aims, and endeavors to resolve these problems short of committing delinquent children to a reformatory and to that end the effort he made to enlist the assistance and cooperation of persons he deemed qualified to advise concerning and to deal with such problems and the successes achieved , as well as disappoint- ments realized , in the course of some of these undertakings . As to conducting and approving "public whippings" of delinquent children there was no substantial foundation for that insinuation . - Camp admitted that on one occasion during the approximately 4i/2 years he served as juvenile judge he had personally , at the, request of a boy's mother , administered a whipping. This was done in the privacy of the juvenile court, the boy's mother and the probation officer being the only other persons present. The child was a boy 10 or 12 years of age, who had repeatedly been hailed before the juvenile court for small thefts . The boy's JOHN L. CAMP 77 widowed mother had punished him and told Camp that she "had tried whipping" but it hadn't done any good and she suggested and requested that Camp administer a whipping. After talking this over with the mother Camp administered the whipping, his "purpose" and hope in doing so was that it might suffice to avoid sending the boy to the reformatory. The full story of Camp's efforts on behalf of this boy demonstrates a sympathy, patience, and eventual success which is, in my opinion, to be commended (Tr. 517-18-19-20). Asked about other whippings in the juvenile court, Camp recalled vaguely that there was at least one and possibly two instances when a mother whipped her son in the presence of Camp and the probation officer and in the privacy of the juvenile court,' with Camp's approval, after the mother and Camp had discussed the situation and "exhausted our resources" and the mother proposed and requested that she be permitted to administer the whipping in the hope that, under such circumstances, it might effectively serve to avoid a commitment of the boy as a delinquent. Camp having testified that on one or possibly two occasions he had at the request of the mother permitted her to administer a whipping in the privacy of the juvenile court under the circumstances stated, and with the hope that such disciplinary action might adequately serve the purpose intended, the General Counsel produced a photostatic copy of an entry in the juvenile court records made by Camp as juvenile judge showing that on one occasion a boy had been found guilty of a "law violation" and that "His father gave him a whipping in the Court and he was released to his father." Whether it was one of the one or two cases in which, according to Camp's recollection, it was the mother who admin- istered the whipping or an additional instance, is, as I view it, of little moment. The General Counsel did not call any witness and did not offer any direct testi- mony tending to substantiate the theory which he apparently seeks to advance that Camp is inherently a man of rash temper and given to acts of violence. The group of lawyers and judges who had known Camp intimately and well through the years refuted such implication. The General Counsel then turns to Camp's own testimony concerning his administration of the office of juvenile judge which was first brought in question by the General Counsel, and professes to believe that it requires an inference that Camp possesses such traits of character. Camp's testimony concerning his policies, practices, and efforts as judge of the juvenile court was not contradicted and I discover nothing in the cross-examination which would incline me to question or doubt Camp's statements in that connection. If this line of testimony shows anything having any bearing on Camp's temperament or character it tends rather to reveal him as a conscientious, patient, warm- hearted, and sympathetic person, and, as I view it, negatives rather than substan- tiates the interpretation the General Counsel would put upon it. C. The Ohio Oil Company The Ohio Oil Company, an Ohio corporation, herein at times referred to merely as the Company, has its principal office at Findlay, Ohio. It is engaged in the production and processing of petroleum products in 28 States of the United States. Its principal holdings are in the Yates Field located near Iraan, Texas, and in Lea County, New Mexico. The discharge in August 1948 of two em- ployees, Jack R. Davidson and J. L. Buchanan at the Yates Field operation, resulted in an unfair labor practice complaint case against the Company (Case No. 16-CA-128). It was during the hearing in that case that John L. Camp, of counsel for the Respondent Company, assaulted E. Don Wilson, attorney 2 Camp testified , without contradiction , that all juvenile proceedings, except cases in which a fury could be and was demanded , "were conducted in privacy" (Tr. 569 and 520). 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representing the General Counsel in the matter, which assault prompted the General Counsel to initiate the instant proceeding. The Company employed 80 to 90 rank-and-file employees at its Yates Field operation in connection with the drilling and maintenance of wells producing crude oil. The Yates Field is under the jurisdiction of the Company's Houston (Texas) division. R. C. Gwilliam, a vice president of the Company, is in charge of the executive office of the division at Houston, Texas. The Company also maintains a district office at Midland, Texas, with O. E. Sears, district superin- tendent of its West Texas district, which includes the Yates Field, in charge. At all times material in the complaint case against the Company and in this proceeding, F. G. Bascom was the field superintendent in immediate charge of the Yates Field operation. The division attorney has primary responsibility for all litigation arising in his division. The attorney for the Houston division was, and is, Clayton L. On. Camp is, and since sometime in 1937 has been, a member of the legal staff of the Houston division working under Orn. The complaint, case against the Company arising out of the discharge of Davidson and Buchanan was the first National Labor Relations Board case the Houston division had been called upon to handle. Orn requested the General Counsel for the Company, who granted same, to assign William Tell, an attorney and member of the home office legal staff at Findlay, Ohio, who had had "some prior experience . . . in labor matters," to assist the Houston division legal staff in handling this case. D. The Ohio Oil Company case, Case No. 16-CA-128 The assault which is the basis of the instant proceeding occurred on Octo- ber 26, 1949. the sixth day of the hearing at Rankin. Following the s ction of the Trial Examiner in excluding Camp from further participation in the case, the hearing was adjourned and thereafter resumed at Midland, Texas, on November 29 and completed on December 1, 1949. When the hearing was commenced at Rankin, Texas, on October 18, 1950, E. Don Wilson entered appearance as counsel for the General Counsel He served in that capacity throughout the case. Camp, Orn, and Tell, in that )rder entered appearance as counsel for the Respondent Company. Buchanan and Davidson, the dischargees, respectively began working at the Yates Field in November 1944 and January 1945. Each started as a "roustabout" (general work). In 1947, the Company put in operation three rotary machine rigs. Each rig required a crew of four meii. Davidson and Buchanan were trans- ferred to and worked together on one of these rotary rigs. The rotary crews worked six 9-hour days a week or 54 hours a week. In February 1948 the Company put a spudder machine in operation. The spudder required two operators and the spudder jobs paid a higher rate than that paid rotary rig operators. At the time it was placed in operation, all employees qualified to work on a spudder, including Davidson and Buchanan, were afforded an oppor- tunity to bid for a job-on the spudder but Davidson and Buchanan failed to do so. The spudder operated 24 hours a day, 6 days a week, with three 8-hour shifts. With the rotary crews working 54 hours a week and the spudder operators 48 hours a week, all other rank-and-file employees worked 40 hours, 5 days of 8 hours. This arrangement continued until Friday, July 2, 1948, when Foreman Phillips announced to the rotary crews that beginning with the next day the operation of the rotary rigs on Saturdays would be discontinued, and thereafter the rotary crews could work five 9-hour days a week, i. e., 45 hours a week, instead of 54 as they had been doing. The spudder operators were JOHN L. CAMP 79 continued on the same schedule of 48 hours a week. This cut-back resulted in dissatisfaction and complaint on the part of the rotary crews. The General Counsel's case-in-chief was devoted to showing that this dissatisfaction because of the cut-back existed among the rotary crews, that complaints were made, and that in this situation Davidson and Buchanan engaged in talk about getting the Union e to come into the field and organize and that the men should have a union and similar assertions. Defining his theory of the case Wilson stated, in substance (Otr. 247), that "the complaint is that these two men were fired for their union activities" which they commenced and carried on, because of the complaints they and other men on the rotary rig had after the cut-back was made. The Trial Examiner, by his Intermediate Report (I. R. 158), found against the General Counsel's contention that Davidson and Buchanan were discharged because of their "efforts and activities" in trying to organize a union of the Oil Workers International, CIO, as alleged in the complaint. However, the Trial Examiner further found that "Davidson and Buchanan were the most voluble among the employees in complaining to their foremen regarding the cut-back in hours and consequent reduction in pay." Further Foreman Phillips testified that he recommended the discharges, which were consummated in August 1948, both "because after the cut-back," on July 2, 1948, "they (Davidson and Buchanan) were not doing their work and were constantly complaining about the cut-back and the wages and hours." The Trial Examiner's con- clusion was that Davidson and Buchanan "were discharged because they en- gaged in concerted activities with other employees in an effort to restore overtime wages" which "constituted protected concerted activities," and "not because of unsatisfactory work performance." On January 26, 1951, the Board issued its "Decision and Order" in this case, 92 NLRB 1597, affirming the Trial Examiner's findings. The Board said : "On the merits the Trial Examiner found, and we agree, that Respondent did not discharge Davidson and Buchanan for cause but, on the contrary, terminated their employment because they engaged in the presentation of grievances" which "in our opinion constituted concerted activity protected by the Act." The Board points out that "when approached on the job by Respondent's personnel manager and supervisor," Davidson and Buchanan "together voiced objections to the cut-back in overtime work in an effort to restore overtime wages for all the employees working on the rotary rigs." E. Incidents occurring prior to and during the hearing in the Ohio Oil Company case In setting out some of accumulating incidents which evidence a growing and increasing tension, as the hearing in the Ohio Oil Company case progressed, between the attorney for the General Counsel (Wilson) and the attorneys for the Company, particularly Camp, who had primary responsibility in the repre- sentation of the Company, I shall endeavor to restrict myself to an objective statement of events without undertaking to assess blame or assuming the role of critic. True the cold printed record does not reflect the intonations of voice, facial expression, or the alleged acrimonious manner of speaking. 1. Prior to the hearing On cross-examination Camp was asked : "When did you first get unhappy with Mr. Wilson during the course of this trial" (the hearing in the Ohio Oil Com- pany case). Camp answered: "I was unhappy with Mr. Wilson before the trial started." Camp then explained the action on the part of Wilson, occurring s 011 Workers International Union, CIO. 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prior to the hearing, which had caused his displeasure and which he "thought was unjust." It appears that shortly after the charge was filed a field examiner for the Board had called on Gwilliam , Houston division manager , and Bascom and Phillips, superintendent and a foreman, respectively, at the Yates Field operations , and interviewed them. The field examiner obtained the signature of each of these supervisors to a written statement of the interview which he prepared. None of them was given a copy of the statement which he had signed. In preparing the case for hearing, the date of which was approaching, Camp went to the regional office at Fort Worth and requested copies of these state- ments. The Regional Director was out of the city and the person acting in that capacity first assured Camp that he could have the requested copies. Later the Acting Director advised Camp that the case had been assigned to Wilson who was then at Iraan "getting ready for the trial " and that as soon as Wilson re- turned he would submit Camp's request and Wilson would contact Camp. It was Camp's conviction that under the Administrative Procedure Act he was, as attorney for the Company, employing these three men in supervisory capacities, entitled to copies of the statements. Camp testified that he was "stalled along" until itwas too late for him to take appropriate court action to compel the pro- duction of the statements, that Wilson "led" him "to believe" he could have copies of the statements but that on the last occasion he discussed the matter with Wilson, by telephone, shortly before the hearing, Wilson refused to supply him with the copies, that he then discussed with Wilson the provision of the Admin- istrative Procedure Act upon which he was relying and remarked to Wilson that the way that provision read possibly Gwilliam, Bascom, and Phillips themselves "might have to request the statements " and asked Wilson what his position would be in the event they did so, that Wilson first indicated that he would grant the personal and individual requests , if made, then said that "would be just a subterfuge" for the Company's attorneys to get the copies. Camp told Wilson that there was no subterfuge about it, that the very purpose of having the men make the request which he would do, was that the Company's attorneys could obtain and examine the statements before the hearing started . Camp got in touch with the three men and each wrote a letter to the Regional Director requesting a copy of his statement. Identical replies, except in names used, were received. The Regional Director's letter to Phillips was put in evidence and the more material part reads : Inasmuch as we consider your request along with that of F. G. Bascom and that of W. H. Gwilliam to be a subterfuge whereby Ohio Oil Company is endeavoring to obtain copies of the statements indirectly , its own request having been refused, you are advised we will not at this time comply with your request. Nor was the request ever complied with. Camp's position was that under the Administrative Procedure Act the men were entitled to copies of their statements and that their reasons for wanting same or what they did with them were not material , further he had fully ad- vised Wilson of his position and that the three men would turn over the copies to the Company's attorneys, consequently Camp took a degree of umbrage at Wilson's, in effect, repetition in these letters that Camp was resorting to a sub- terfuge. Hearing in the Ohio Oil Company Case No. 16-CA-128 Commenced As stated, the hearing in the Ohio Oil Company case was commenced in the' courtroom of the district court at Rankin, Texas, on Tuesday, October 18, 1949. The assault occurred on Wednesday, October 26,1949, the sixth day of the hearing. JOHN L. CAMP 81 2. First day (Tuesday, October 18, 1949) The greater part of this session was spent in the formal proof, the presentation and disposition of motions, and arriving at a stipulation covering commerce facts. One witness, Davidson, one of the dischargees, was called to the stand by the General Counsel and the taking of his testimony commenced. Davidson resumed the stand and his testimony was completed on the second day. On this first day, having stipulated with Wilson on the commerce facts, the Company's counsel requested Wilson to stipulate that at the time the Oil Workers Inter- national Union, CIO, the complainant, filed the charge the officers of the CIO had not filed non-Communist affidavits and had not complied with the provisions of Sections 9 (f), (g), and (h) of the Act. This Wilson refused to do on the grounds that he was "personally . . . without knowledge of the facts" and fur- ther that the matter of compliance was not litigable in that proceeding. Re- spondent's counsel, aware that Wilson had entered into such stipulation in a prior case, Poster Cotton Mills, were somewhat irked by his refusal to so stipu- late in this instance. 3. Second day (Wednesday, October 19. 1949) Buchanan, one of the dischargees, was on the stand and under cross-examina- tion by Camp. Camp asked Buchanan if it was his testimony that while he (Buchanan) was "working overtime 14 hours a week . . . the cable tools weren't even running." At this point Wilson objected and said : "I would like advice from counsel whether a cable tool is the same as a spudder. We have been talk- ing about a spudder. Is a cable tool and a spudder the same thing? If not I object to the ambiguity of the question." Camp replied : "I don't see that it is up to me to educate you on what little I know of oil field technology." Wilson : "I addressed my remarks to the Trial Examiner and suggest counsel address his remarks to the Trial Examiner." At the hearing in this proceeding Camp said he considered his reply to Wilson in the instance related as being "an improper remark and I should not have "made it." He said that at the time he had in mind Wilson's refusal to cooperate with them in regard to the stipulation con- cerning the CIO noncompliance after they had stipulated as to commerce facts, and at the time felt if Wilson was not inclined to be cooperative he would not be. The next incident during this second day injected into the case for the first time the charge by Wilson of "lying" on the part of company officers or supervisors. As has been related, supra, in giving an outline of the facts and issues in the Ohio Oil Company case, when the rotary rigs were put in operation at the Yates Field, in 1947, the twg dischalgees, Davidson and Buchanan; who had theretofore worked as "roustabouts," were transferred and worked together on a rotary rig. The rotary crews worked six 9-hour days or 54,hours a week. All other employees continued to work 40 hours a week. After the rotary rigs had been in operation for "over a year," the Company, in February 1948, put a spudder machine in operation. • It was known for 2 months before the spudder was put on that the Company was going to get a spudder. The spudder jobs were to. and did, pay a higher hourly rate than the rotary rig jobs. All employees qualified to work on a spudder, including Davidson and Buchanan, were afforded ample and full op- portunity to bid for a job on the spudder. In the course of his testimony which :preceded, and was completed prior, to the incident I am about to relate, Davidson had testified that several days before the spudder was put in operation the "farm boss," Bill Williams, came over to the rotary rig and said : "Jack did you mean what you told me awhile back to be a bid on that spudder," that he replied : "I don't remember what I told you Bill," that Williams then said: "You told me one 82 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD day you would kind of like to have a run ( on the spudder ).- Well, we figured it out and you boys will work six 9-hour days and the tools ( the spudder) will be confined to five 8-hour days and it would be just a few cents difference a day in your rate of pay and you furnish your own transportation if you work on the tools" ( the spudder ), and that he, Davidson, said: "I believe I'll pass it up Bill, I am satisfied where I am right now." Davidson said he told his fellow employees on the rotary rig what Williams had said and Buchanan said : "He did not want the job on the spudder because he would bust his tires all to pieces driving his car over the rocks." On direct examination Buchanan testified to an almost identical conversation with "farm boss" Williams, who was the only supervisor with whom either discussed a spudder job. It does not appear what authority , if any, the "farm boss" had in connection with assignment of jobs or receiving and acting on bids or in fact just what his authority was. Several days later in February 1948 the spudder was put in operation and from the beginning the men on the spudder worked 6 days a'week in 8-hour shifts or 48 hours a week. They at no time worked 5 days a week . So far as appears , although they claimed that in the conversation with the "farm boss" he had told them the spudder operatives would work only 40 hours a week, five 8-hour days, neither Davidson nor Buchanan then or thereafter during the approximately 5 months that elapsed)before the cut- back was made , in July 1948, in the working time of the rotary crews, from 54 to 45 hours a week, charged or complained that they had been lied to, deceived, or misled and was thereby kept from bidding on the spudder jobs. In fact David- son testified that until he received the notice that the rotary was going to be cut back ( in July 1948 ) he "was perfectly satisfied" and thought the Company had treated him "fair up to that time" ( OTr. 146 ). As the Trial Examiner found, no complaints on the part of Davidson or Buchanan , or other members of the rotary crews, arose or were made "regarding working conditions" prior to the cut-back in July 1948 . The testimony of Davidson and Buchanan was devoted for the most part to the complaints which arose among rotary workers because of this cut-back and the talk which they claimed then sprang up about getting the union to organize the field, in which talk they claimed to have participated prominently, and with whom, where, and when they claimed to have talked about getting the Union to come into the field in an effort to restore the cut-back It was not claimed that there had been any union talk or agitation prior to the cut-back. It was said that prompted the union talk. This was the posture of the evidence in the case on the second day, Davidson having completed his testimony, Buchanan was on the stand and under cross-examination , his direct examination having been completed. Camp was interrogating Buchanan about overtime work , the cut- back and the complaints in that connection . Wilson objected to-that line of ques- tioning as being "immaterial and irrelevant." In support of this objection Wilson stated to the Trial Examiner : The complaint indeed is not whether anybody was cut-back from anything. The complaint is that these two men, Davidson and Buchanan , were fired for their union activities. Now, . . . it has been brought out that they commenced their union activities because of certain other complaints that they privately had and other men had, and those complaints were not simply that they had been cut back some period of time but that they had been lied to, told that if they took a job on a spudder they would only make 20 cents a day more because the spudder would only work five days a week, but they on the rotary rig would work six days a week, and their complaint was that the Company by so lying to them kept them from bidding on the jobs for the spudder . . . and that as a result of those lies the men working on the rigs not only did not bid and get a job on the spudder, but then, contrary to what they had been told , they did not continue to work six days JOHN L. CAMP 83 per week but worked only five days a week, and the men on the spudder, contrary to what the men on the rotary rig had been told, instead of working five days a week worked six days a week, so in the end the men on the rotary rig having been lied to, and having refrained from bidding lost not only their overtime but also lost an increased amount of money which they would have made if they had bid on and gotten the job on the spudders. That is the correct complaint.... [Emphasis supplied.] Wilson having thus charged the Company with resorting to the device of lying, Camp pursued the matter in the further cross-examination of Buchanan seeking to learn from Buchanan who and when anyone representing the Company had "lied" to him about the spudder as Wilson had charged. Instead of attributing the "lying" to "farm boss" Williams he said a Foreman Phillips had "lied," and the whole matter about lying was resolved to this : Davidson and Buchanan said that when on Friday afternoon July 2, 1948, Foreman Phillips announced that the rotary rigs would thereafter be shut down on Saturdays, he was asked if the spudder was also going to be shut down and he said it was but that the spudder continued to work on Saturdays. This is the only "lying" Buchanan attributed to any company supervisor or official (OTr. 258, 262). Later on the same day when General Counsel's witness Hugh L. Stephen was on the witness stand 4 and under cross-examination, conducted by Orn, Stephen said that prior to the service upon him of a subpoena he had not talked to any- one but his boss at the place where he worked in Iraan about the case. Later he admitted that Davidson and Buchanan had come to see him and he had talked with them "about the testimony" he was going to give in the case (OTr. 284, 285, 286). On redirect examination Wilson asked Stephen to tell "what was said" in the conversation with Davidson and Buchanan. Orn objected on the ground, "That would certainly be hearsay testimony as to us" (OTr. 293). The following (OTr. 294, 295) then ensued : WILSON. This is something brought out on cross-examination . . . I want to find out what was said. ORN. I did not ask him anything that was said. I asked him when was the first time he ever talked with these men-due to the fact that he said he had never discussed his testimony with anyone and then later said he had talked with these two men and certainly any conversation that trans- pired after these men were discharged, outside our presence, is not admissible. WILSON. That is precisely what I want to develop. On cross-examination he was asked if he talked about his testimony which as we all know is a trick question and- ORN. Your honor , that is the third or fourth time counsel has said that. WILSON. If you don't know it is a trick question, I know it is a trick ques- tion. It is the old army game. TRIAL EXAMINER. Wait a minute. ORN. I ask the Court to instruct counsel to conduct himself as a counsel should conduct himself. TRIAL EXAMINER. Let's avoid personalities and get down to trying this matter. 4. Third day (Thursday, October 20, 1949) The hearing was adjourned at 1:15 p. m. until the following Monday. During this session the General Counsel called two witnesses, Buchanan's wife, and 4 The Trial Examiner did not credit Stephen's testimony concerning conversations with Foreman Phillips. 84 - 1 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD Charlie Phillips, son of Foreman Phillips, who had worked during his college vacation in the summer of 1948 as an "extra man" on the rotary rigs. The Gen- eral Counsel's case-in-chief was concluded with the testimony of these two wit- nesses. 5. Fourth day (Monday, October 24, 1949) The Respondent Company called R. C. Gwilliam as its first witness. I have heretofore identified Gwilliam as a vice president of the Company, formerly an attorney for the Company, and since 1937 division manager in charge of the Com- pany's Houston division with offices at Houston, Texas. I have also mentioned his long acquaintance with Camp, the close personal friendship that existed be- tween them, and Camp's high regard and respect for Gwilliam. Camp interro- gated Gwilliam on direct examination. I note here that Orn was not present at this session nor on the following 2 days of the hearing at Rankin. He attended and participated with Tell in the hearing when it was resumed at Midland, Texas, on November 29, 1949, after Camp's exclusion. At least so far as the Company's Houston division is concerned, the final au- thority to effectuate the discharge of a rank-and-file employee is vested in the district manager at the Houston office, in this instance, Gwilliam. The field superintendent and foreman may recommend the discharge but same cannot become effective until and unless the division manager approves the recom- mendation and authorizes the discharge. The steps leading to the discharge of Davidson and Buchanan were as fol- lows : Sometime in July 1948, after the cut-back in the working time of the rotary crews, Foreman Phillips recommended the discharges to Field Superin- tendent Bascom, who communicated same by telephone to District Superin- tendent Sears at the Midland, Texas, offices Sears went to the Yates Field and discussed the matter with Bascom and Phillips. Later Wilbur Chalfant, the personnel director for the Houston division, made a report to Sears concerning a conversation he had had with Davidson and Buchanan and two other employees working on the same rotary rig. Thereupon, on July 26, 1948, Sears trans- mitted the recommendation with his concurrence therein, by telephone, to Gwil- liam at the Houston office. Apparently this telephone communication from Sears was the first informa tion Gwilliam had about the matter. Gwilliam testified that, on that occasion, Sears informed him that Bascom and Phillips were recommending the discharge of Davidson and Buchanan because they were not performing their work as they had in the past, "were loafing on the job, making many complaints, and showed a very great dislike for the Company and their jobs and enumerated the com- plaints" they were making. Gwilliam said he told Sears he could not remem- ber "all those complaints" and to write him a letter listing them, which Sears did. Upon receipt of Sears' written statement setting out the complaints, with his observations as to each, Gwilliam discussed the validity of the complaints and the discharge recommendation with A. L. Henderson, division production superintendent, and Henderson's assistant, J. D McBrayer, members of the di- vision office staff, who advised him that the complaints were without merit. Gwilliam then talked with Personnel Director Chalfant about his conversation with the men at the Yates Field, and on August 5, 1948, authorized the dis- charges. He left the next day for a vacation from which he returned August 28. The discharges were effected in the meantime. Under date of December 8 and 13, 1948, Davidson and Buchanan, respectively, each made a request by letter directed to the Company at Iraan, and received at the Yates Field office by Superintendent Bascom, that the Company send him a JOHN L. CAMP 85 "written statement of the reasons" for his discharge Each received a reply, under date of December 21, 1948, signed by Bascom stating: "We terminated your employment because you were not rendering the character of services that our operations require." It was stipulated that the Davidson and Buchanan letters were received by the Company and that the Company replied by the letters signed by Bascom. These letters became the subject of a long and exhaustive cross-examination of Gwilliam by Wilson. In the course of this cross-examination Gwilliam said in effect that his recollection was that he did not personally see the Davidson and Buchanan letters until after the charge was filed or at least it was sometime after they were received by Bascom at Iraan but that he was advised of and fully "cognizant" of the contents of the letters before the replies were sent. He was asked, "With whom" he had conversations about the contents of the David- son and Buchanan letters. It is apparent it was meant prior to the dispatch of the replies. Gwilliam answered that he did not have such conversation with Bascom, "I think it was someone in the office. I think it was Henderson." As he recalled he told Henderson to tell Bascom "be could ,vrite them in detail or write them that the type of service they were rendering was not satisfactory to the Company " Pressed in a line of questions as to who other than Henderson he talked to about these letters, he said that he "may have talked to two or three people in the office," that his recollection was he "talked to Henderson and told him to handle it and he did," and that he did not talk to Sears about the letters. At this juncture the following (OTr. 468, 469) occurred: Q. Didn't you want to find out from somebody why they hadn't given these men reasons for, their discharges? A I understood they knew all the time why they were discharged. Q. Who told you that your men had told them? A. Mr. Sears Q. When did Mr. Sears tell you? A. At the time he told me on July 26-the men knew the reason for their discharge. Sears told me later on that they had been told, after this charge was filed. Smile if you want to I am trying to tell you the truth. I am getting a little mixed up Smile if you want. Q. Just answer my question. A Don't you sneer at rue. WILSON. I ask the Trial Examiner to instruct this witness to conduct him- self in a proper fashion and not to be haranguing counsel for General Counsel. who is conducting himself in an orderly manner. CAMP. We move that be struck from the record. WILSON. I submit, in view of this witness, looking at me and directing me not to smile, not to sneer, and so forth, that he be instructed not to harangue nie while I am conducting a cross-examination of him in an orderly manner. TELL. I submit he is not haranguing counsel and renew the motion that that portion be stricken. TRIAL EXAMINER. We will let the record remain. In the course of his testimony, in the instant matter, Tell was asked his recollection of this incident in the Ohio Oil Company/ hearing. He said, "I can't visualize the thing in my memory . . . it seems to me he (Wilson) was smiling. I can't say lie was sneering . although I am sure Mr. Gwilliam thought it was a sneer." Respondent's witness Phillips 6 said Wilson was right up close to Gwilliam at the time and asked Gwilliam a question, that when Gwilliam gave his answer Wilson "walked back . . . and started to laugh." The foreman who sat with the Company's counsel during the hearing. 974176-52-vol. 96-7 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Returning to Wilson's cross-examination of Gwilliam , continuing after this flare-up, Wilson inquired of Gwilliam when he had told Sears that he ( Sears) was to give Davidson and Buchanan the reasons for their discharge. I do not discover that the witness had so testified . Be that as it may, Gwilliam repeated that it was Henderson , the division production manager, whom he had instructed to attend to the answering of the Davidson and Buchanan letters "and that he could go into detail or tell them approximately what" was stated "in the letter" signed by Bascom . The line of questions as to whether he had discussed the letters with anyone other than Henderson was resumed and was followed by questions as to when he gave Henderson those instructions. In the midst of one question Gwilliam interrupted with "Wait a minute." Wilson continued with the question, asking Gwilliam not to interrupt. When the particular question was completed, instead of answering it Gwilliam stated that he had been in error in saying it was Henderson with whom he had discussed the letters and to whom he had given the instructions concerning the replies, that he now recalled that Henderson was in Terre Haute, Indiana, during that time and that it was McBrayer, who was Henderson's assistant, instead of Henderson. This information was volunteered by Gwilliam. Then followed cross-examination along the same line of questions which had been propounded concerning what and when he had told Henderson with reference this time to McBrayer. Camp objected to continuing this line of cross-examination further, and argued the objection. The Trial Examiner inquired of Wilson the purpose of further pursuing this line of cross-examination Wilson answered : "Credi- bility for one thing" ( OTr. 474, 475) and requested that the witness be excused which was done. Wilson thereupon presented an argument against the objec- tion in the course of which he said (OTr. 476 ) : "This man's credibility has gone all over the lot on this examination." The argument pro and con on the objection continues over several pages of the transcript (OTr. 476, 477, 478, and 479 ) with Camp and Tell arguing that there was no issue about the Davidson and Buchanan letters and the Company's reply, as they had been admitted in evidence by stipulation, and that the line of cross-examination which had been pursued at length was directed to wholly immaterial issues. Wilson continued to argue that the cross-examination went to Gwilliam's credibility as a witness. Upon a further question by the Trial Examiner concerning the materiality of the line of inquiry Wilson was making, Wilson said (OTr. 478), "He (Gwilliam) is contradicting himself . . '. I say the materiality is certainly this man's credi- bility. This man is contradicting himself under oath on the witness chair." Later Wilson said ( OTr. 478 ) : "I again repeat, I am in the middle of having this witness contradict himself on the things he has said before under oath and that is certainly pertinent cross-examination." It was at about this point that Tell, addressing Wilson, said (OTr. 478, 479) : "It is apparent the witness was confused with all of your very apt and special skills as counsel, you are about to-well, perhaps not jump down his throat, that perhaps is not a good word, but perhaps the record ought to show you were raising your voice and your demeanor towards the witness was perhaps sufficient to provoke confusion." Thereupon the record shows the following : Wu.soN. I ask the Trial Examiner to strike those remarks or that over- ture of William Tell. TRIAL EXAMINER. The record may remain. WILSON. Does the Trial Examiner deny my request to strike the remarks of counsel for the Company that I was raising my voice and acting in a manner which would confuse the witness which I emphatically deny. TRIAL EXAMINER. The remarks may be stricken. We will take a five minute recess. JOHN L. CAMP 87 After the recess, Wilson resumed his cross-examination of Gwilliam along the same line (OTr. 479, 480, 481), with whom did he discuss the "contents of those letters," and Gwilliam reiterating his earlier statements of the matter said it was "someone in the (Houston) office," that he had first thought it was Hen- derson but it could not have been as he now recalls Henderson was in Indiana at that time and presumes it was Henderson's assistant, McBrayer. This with variations as to whether Gwilliam had discussed the letters directly with Bascom which Gwilliam denied, continues into page 482 of the Ohio Oil Company transcript. It will be remembered that Gwilliam was the first witness called by the Re- spondent Company. He had not testified or advanced any claim nor attempted to do so that anyone representing the Company in a supervisory position at the Yates Field had told Davidson and Buchanan the reasons for their discharge at the time they were discharged. Indeed it was a matter about which he could not have had, and did not have, any personal knowledge. The discharges were effectuated at Iraan (the town site in the Yates Field) by Foreman Phillips at a time when Gwilliam was absent even from Houston on vacation but the situation would have been the same in that regard had he been in the office at Houston. Gwilliam had said, in reply to questions during the cross-examination, that he "assumed the men in the field" (field supervisors) had told Davidson and Bu- chanan why they were being fired, but that "what they told them I don't know" (OTr. 458). However, Gwilliam had not undertaken to deny or affirm that Davidson and Buchanan had or had not been told by the field supervisors, who. notified them they were being discharged, the reasons for their discharge at the time they were discharged. With this the situation at this point in the cross- examination of Gwilliam the following occurred, as shown by the transcript (OTr. 482 and 483) : Q. (By Mr. Wilson:) Now, isn't it a fact that the first time you discussed with Bascom whether or not Bascom had told Davidson and Buchanan why they were fired was after the charge had been filed by the Oil Workers International Union ; isn't that the first time you discussed it with Bascom? A. I don't know. Q. Now, think back, take all the time that is necessary- CAMP. Your honor the witness has already answered the question, he don't know. We believe this line of interrogation has passed all reasonable ends. We ask that he be instructed to get on-something else. TRIAL EXAMINER. I wonder what the materiality is. I can't quite see going further into this. WILSON. I believe the evidence in this case will show that these witnesses (apparently reference is to Davidson and Buchanan) never were told why they were fired, excepting by these letters, General Counsel's EXhibits 15-A and 14-B, and that this story that they were told is a concoction created, fabricated•after the charge was filed. [Emphasis supplied.] This accusation, made by Wilson as a purported legal argument going to the materiality of a certain line of interrogation, implying that one or more of the Company's officers, or supervisory personnel, or other representatives connected with the preparation and presentation of its defense, which could well include its counsel, had, after the charge was filed, made up or devised a false and untrue version of what was said and done in connection with, and affecting, the discharge of Davidson and Buchanan, and that witnesses had been prepared to testify to same, on behalf of the Company, knowing same to be false, with - the implication pointing immediately and directly to Gwilliam, the witness then under cross-examination and whose credibility and integrity had been previously repeatedly impugned by Wilson, was to say the least galling to counsel for the 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company and was resented by them, particularly Camp because of his relation- ship with, and respect and friendship for, Gwilliam. On cross-examination, in the instant proceeding, Wilson said in effect that his accusation of concoction and fabrication was specifically directed to Gwilliam, that at the time he made the accusation-it was his "opinion that Mr. Gwilliam was not merely testifying as to things which weren't true, but that he was lying," that it was his "position," at the time, "that the story that the witness had told was a concoction created and fabricated after the charge was filed," and that he "considered that ... to be the equivalent of saying that the man was lying " Asked on cross-examination if in his experience as a lawyer he would regard a charge that testimony had been concocted as carrying with it an implication, that the lawyer whose witness was involved had anything to do with or had participated in the concoction, Wilson said "it could" (Tr. 106) have that implication but that in this instance, it was his opinion there was no occasion for the Company's counsel to assume he was "charging" them "with having something to do with the concoction or fabrication" because "This was testi- mony which came from this witness (Gwilliam) out of his own mind while he was on the stand on cross-examination and could not have come from any thought or idea given to the witness by counsel" (Tr. 106). Then the following question and answer (Tr. 106) : Q. You regarded Mr Gwilliam as lying on his own, without the assistance of his counsel. A. That is correct. Tell said that by the accusation of concoction and fabrication, he understood Wilson was charging "that this witness was not telling a true story of what took place and that it was created by someone, possibly including counsel for the Respondent, and put in the mouth of the witnesses," (Tr. 310) and that he did not consider it "conformable to the standards of conduct expected of an attorney to characterize testimony being presented by another attorney as concocted and fabricated" (Tr. 317). 6. Fifth day (Tuesday, October 25, 1949) This entire day was spent in the examination of one witness, Frank Bascom, the field superintendent at the Yates Field. Eighty-eight pages of the transcript, 524 to 612, is taken up with the direct examination and 107 pages, 612 to 719, with the cross-examination, which was not completed. The cross-examination was resumed on the following day and was still in progress when the assault which terminated the hearing at Rankin occurred. During the cross-examination on this fifth day Wilson was questioning Bascom about the date of a reclassifica- tion of Davidson and Buchanan from "roustabouts" to "well-puller No. 2" jobs. It seems that previously there had been a stipulation of some kind made about this reclassification. Tell objected to the line of questioning "in view of the stipulation " A long argument in which Wilson, Tell, and Camp all participated ensued (OTr. 639, 640, 641, 642 and 643) In the course of this argument Camp (OTr. 642) made a statement during which he referred to the stipulation. There- upon the following (OTr. 642) occurred : WILSON. Sir, I am not going to say anything further after this remark. In the first place, I heard several misstatements on the part of Mr. Camp. I didn't request the stipulation. CAMP. I deny I made any misstatements. WILSON. The record will show whether or not misstatements were made. I say they were made. CAMP I say they weren't. - JOHN L. CAMP 89 About this exchange, Camp sail{ that from Wilson's manner and tone of voice he (Camp) thought Wilson meant, and was accusing him, of deliberately making misstatements (Tr. 607). Shortly thereafter with Wilson pursuing the same line of questioning, this occurred (OTr. 648) WILSON(to Bascom). Is it your testimony that nobody recommended, that either Davidson or Buchanan be reclassified. It isn't necessary to look at counsel. CAMP. We object to a remark like that. TRIAL EXAMINER. Yes, lets avoid these personalities. Later Wilson asked Bascom : Q Can you tell us approximately how many of your employees in the field were employed after Davidson and Buchanan? CAMP. We object to that your honor. WILSON. It has to do with their seniority. Its been discussed ad infinitum and ad nauseaum (OTr. 667). Wilson says that somewhere about here in the cross-examination of Bascom, during that part covered by pages 668-672 of the transcript in the Ohio Oil Com- pany case, Camp advanced upon him (Wilson) and attempted to "grab" from his hand a paper or document which Wilson held in his hand, same being a written pretrial statement which a field examiner had prepared during an in- terview and interrogation of Bascom and which Bascom had signed. There is of course nothing in the transcript concerning the movements of either Camp or Wilson during this period. At the time the controversy about the Bascom statement arose Wilson, engaged in the cross-examination of Bascom, was stand- ing near the witness 'stand on the left side of the counsel table, on which side counsel for the Company were seated. Wilson held a paper in his hand which concedely was the written pretrial statement which the field examiner had ob- tained from Bascom. The following maneuvering then occurred-as shown by the Ohio Oil Company transcript, pages 668 to 675, inclusive. Wilson first asked Bascom if he knew Byron Guse, a field examiner, if he had a conversation with Guse and gave him a statement, and if he (Bascom) had read and signed the statement, all of which Bascom answered-in the affirmative (OTr. 668). (OTr. 668) Q. You swore that the matters contained therein were true? A. Didn't swear to it, no sir. Q. Prior to the time that you signed it, had you read all the statement. (OTr. 669) A. Most all of it, yes sir. Q. What parts didn't you read. A. Well, I just sketched over it. I might have missed some of it. I don't know, might have read it all. Q Did you read a part which said, "I have read the above statement of 21/4 pages and the contents thereof are true to the best of my knowledge and belief." 90 DECISIONS OF-NATIONAL LABOR RELATIONS BOARD TELL : Are you quoting from that statement now counsel? WILSON : I am asking him if he read a part of the statement he signed. CAMP : We object to the question because there is no evidence in this case that that is contained in the statement. He is making an assertion that that is in a statement. WILSON : I didn't say it was in the statement. CAMP: We object to it, your Honor, unless he puts the statement out on the board, open and above board here. TRIAL xAMINER: I think counsel is right to object to the use of the statement at this time but if you want to see it, it is up to you to request it. s s s * e • s (OTr. 670) TELL: Mr. Examiner, I would like to make a request at this time to see the statement of Mr. Frank Bascom. TIDAL EXAMINER: I will grant that request. WILSON. I submit as soon as it is used, they have the right to use (sic) it. TRIAL EXAMINER. I think for all practical purposes (OTr. 671) counsel has the purported statement in his hand, and has used it-I think in fair- ness, the parties should be entitled to see it. Wilson did not comply with the Trial Examiner's ruling and permit counsel for the Company to first see and inspect the statement, and instead the following: (OTr. 671) WILSON. I am just beginning to use it and when I use it, sir, they are going to have it, there is no question about it. TELL. I submit that the pending question contains a statement in there. Did you read that portion of the statement thus and so, I now request the General Counsel to - WILSON (interrupting). Mr. Trial Examiner there is a pending objection to the question and, not having been ruled on, I now withdraw the question. CAMP. Your honor, we ask that no further questions be allowed with reference to any statement until the statement itself has been exhibited to Counsel for Respondent. TRIAL EXAMINER. I think that is a fair request. WILSON. Mr. Trial Examiner, you mean I may not have it identified by the witness. He doesn't even know whether it is his statement I have in my hand yet. Let us have it identified. KENT. I think counsel have the right to inspect the paper you have in your hand. CAMP. If he is going to use it, we want to inspect It. WILSON. I am going to use it and I ask permission to have it identified. (OTr. 672) TRIAL EXAMINER. All right, if you are going to have it identified. WILSON. I am going to immediately. Even the process of identification was marked by objections which the Trial Examiner sustained when Wilson, in asking Bascom to identify his signature on the third page and purporting to direct Bascom's attention to the location of the signature on that page which was of course plainly discernible, stated that JOHN L. CAMP 91 the words on the line above the signature read : "sub-scribed and sworn to be- fore me this 12 day of January 1949, at Iraan, Texas" (OTr. 673 ). Having had the statement identified Wilson offered it in evidence "for the purpose of impeaching this witness" (OTr. 674). Whereupon (OTr. 675) Tell objected because "counsel for Respondent had not had an opportunity to examine this statement." To which Wilson rejoined (OTr. 675) : "Well of course, sir, once it is offered, it is right on the table for anybody and everybody to examine, and it is now on the table for Mr. Tell, Mr. Camp, Mr. Orn or anybody else to read, study, or do whatever they wish with it." Wilson was unable to fix the point in that period of the controversy about Bascom's statement coveted by the foregoing portion of the transcript at which he says Camp advanced upon him and attempted to "grab" the paper from his hand. Describing the alleged incident in his testimony in this proceeding (Tr. 195) Wilson said, Camp "approached me with his hand out for the paper, with the palm upward," his arm was extended "more or less perpendicular to his body as if he were expecting to have something put in his palm. I held the paper close to me and then the hand (Camp's hand) turned so that the palm being instead of upwards was downwards and he reached for it as if to grab it and I made a quick turn and walked away from him with my back to him." Wilson further said (Tr. 196, 197) that "I have no doubt Mr. Camp wanted to . . . and was attempting to physically take the paper away from me and I believe (he) would have done so but for the fact I turned my back." Here counsel for Camp, cross-examining Wilson, after reference to the transcript in the Ohio Oil Company case, inquired (Tr. 198) : "It seems to me that the Trial Examiner on at least two occasions granted the request that it be turned over. Are you clear in your mind that nonetheless Mr. Camp was pre- paring to take it away from you physically rather than expecting you to hand it over?" Wilson answered (Tr. 198) : "I am completely clear in my mind that he at first, with his hand out, expected me to hand it over'and when I didn't hand it over I am completely clear in my. mind that he intended to grab it from me." Camp said he has not now any recollection of such an incident and that (Tr. 551) "In addition to saying that I don't remember any such thing as that, I want to say I am sure I was never about to take anything away or try to take anything away from Mr. Wilson." Witnesses who testified in this matter and who were present in the courtroom during the controversy concerning the Bascom statement when this incident is alleged to have occurred, in addition to Wilson and Camp, were the Trial Examiner, Tell, Davidson and his wife, and Foreman Phillips. The Trial Examiner said (Tr. 664-665) that he has no recollection at all that Camp "attempted to take that paper away from Mr. Wilson" and that he observed no "conduct by Camp which struck" him as being "in any way untoward, or out of line, or signifi- cant" in connection with the controversy about the Bascom statement. Tell said (Tr. 313) that he does not recall the incident to which Wilson had testi- fied "when Mr. Camp sought to take this paper away from him" and added : "It could well have been that Mr. Camp reached his hand out for that particular paper. I don't have any recollection of his trying to grab a paper from Mr. Wilson." Foreman Phillips said (Tr. 464, 465) that he recalled there was a discussion between the lawyers and the Trial Examiner as to whether Wilson "should hand over" Bascom's statement to Camp and Tell but does not recall "any attempt by Mr. Camp to take the paper away from Mr. Wilson or give indication that he was preparing" to do so. Davidson, one of the dischargees who was one of the General Counsel's principal witnesses, was not asked about this incident. All of these witnesses were seated close by within the bar space, 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Camp, Tell, and Phillips along the left side of the counsel table, Davidson on the other side of the table, with Wilson standing on the left side of the counsel table near the witness stand. Mrs. Davidson, the only witness tending in any way to support Wilson's version, was seated in the second row of seats in the public space beyond the bar rail, a distance of perhaps 16 or 17 feet from the scene of the alleged incident. She described Camp's actions, including the purported movement of his hands, even more graphically than Wilson did. She said (Tr. 262) : "Mr. Camp reached for the paper and Mr. Wilson just pulled it a little farther toward him and then Mr Camp reached for it" with the "palm down," that she would say (Tr. 263) "he (Camp) grabbed for it," that (Tr 268) she remembers distinctly that Camp reached out first "with his hand out, palm up as though he expected to receive the paper, Mr. Wilson just pulled the paper closer to him" and (Tr 270) "Mr. Camp grabbed for it," and "1 imagine . . . if Mr. Wilson hadn't turned around he would have gotten the paper." She said (Tr. 270), that she interpreted Camp's movements to mean that lie was trying to tale the paper "by force," then the following questions and answers - (Tr. 271) Q What do you think occurred that caused him to change his mind. A Some argument went on, I think, and Mr. Wilson said he wasn't ready to show that paper. Q And then Mr. Camp abandoned it? A. That is right. It is my conclusion that at one of the times the Trial Examiner ruled that the Company's attorneys be permitted to see the instrument, Camp, as Tell says, may well have extended his hand expecting to receive the paper. I, do not believe that Camp either intended or attempted to seize and take the paper from Wilson by force The only suggestion Wilson seems to advance for his con- clusion that Camp was bent on so doing is that Camp's hand, he says, turned from a palm up to a palm downward position as he reached for the paper, which he thought indicated an intention on Camp's part to grab or snatch the paper forcibly from him. He does not say that Camp moved toward him at the time. It is my opinion there was no actual or reasonable basis for such belief on Wilson's part and that he did so construe the mere reaching out of the hand by Camp to receive a paper which the Trial Examiner had directed be turned over to him, for his inspection, indicates a wholly unwarranted conclusion evi- dencing to some extent the effect of the emotional atmosphere that had developed. Further, as I view it, and from. my observation of the witness, Mrs. Davidson's testimony has taken on color and detail, which it is unlikely was actually noted at the time, as in retrospect, and in the light of subsequent events, she has undertaken to recall the purported incident. I am also inclined to doubt that in reality Wilson did at the time accord the incident such a sinister signifi- cance as now in retrospect he and the General Counsel profess to view it. Later, on this day, pursuing the cross-examination of Bascom, Wilson asked Bascom (OTr. 692) if he wished "to change the testimony which you have given while on this witness stand." Tell objected on the ground that Wilson's inquii ies concerning the matter then being explored had not been properly limited in time Whereupon Wilson said (Tr. 693) : "I submit the question is perfectly proper on cross examination. They will have an opportunity to rehabilitate this witness, if it is possible." As this fifth day session, which commenced at 9. 30 a. in., wore on its hectic way toward adjournment at 6:45 p. m., with Wilson asserting that Bascom JOHN L. CAMP 93 had sworn in a statement given 'by him to the Company's lawyers that Buchanan and Davidson "were cussing the Company repeatedly" and that as a witness on the stand he had testified under oath that "he had never heard of Jack Davidson ever cussing anybody or anything." The term "cussing" was used in the Bascom affidavit. It was explained that by such term Bascom did not mean profanity but that Davidson and Buchanan had been unjustly criticizing and making accusations against the Company During the cross-examination Bascom admitted that he had never heard, or heard of, Davidson "cursing" [em- phasis added] anyone (OTr. 712, 713). This line of questioning by Wilson with his argumentative insistence that the witness had sworn both ways and his credibility was thereby impeached, and the objections and answering argu- ments of Camp and Tell about the matter, resulted in considerable wrangling which came to an end a moment before adjournment for the day, in fact the last thing that occurred in reference to the testimony, as follows : Camp declared (OTr. 719) that the witness "can not be impeached on the word `cursing'." WILSON. witness. CAMP. I object to further testimony from Mr Camp in front of this Let the witness be excused then I want to please the opposition counsel, very anxious to please. I want to be heard on- ' - At that point the Trial Examiner interrupted and ruled on Wilson's pending offer, denying same (OTr. 719). In this proceeding Wilson testified (Tr. 87) that, "When Mr. Camp said that he was looking directly at me, standing up, his head jutting forward and the tone of his voice was such as let me have no doubt that Mr Camp really did not wish to please me in a manner which would be pleasing to me. He was sarcastic, at least in his expression that he was very anxious to please me." I am unable to appraise Wilson's judgment about Camp's head "jutting forward" but from the context of that which had preceded this utterance I am satisfied that Camp was not at the moment really concerned or anxious about pleasing Wilson and that he spoke sarcastically. 7. Testimony concerning general conduct of attorneys during hearing in the Ohio Oil Company case When Camp was tinder cross-examination, in this hearing, Davis, the at- torney representing the General Counsel, asked him (Tr. 617) : "Wouldn't you also say, Mr. Camp, that prior to October 26 (the day the assault occurred) that maybe you made remarks and answers and so forth that were calculated to be cutting to Mr. Wilson?" Camp answered : "I think so Mr. Davis. I don't want to take the position at all that my conduct in this case was exemplary." Tell said (Tr. 318) that, in his opinion, Wilson's "demeanor" during the hear- ing in the Ohio Oil Company case was at times "characterized by an attitude of sarcasm" toward opposing counsel and the witnesses. Camp complained generally that Wilson persisted in injecting assertions, accusations, and conclusions as to a witness' credibility or truthfulness into arguments to the Trial Examiner going to the materiality or admissibility of evidence and on such occasions attempted to argue the merits of the case to the Trial Examiner. Further Camp said (Tr. 604, 605) that during the trial (of the Ohio Oil Company case) Wilson "walked around a great deal, to and fro. He would walk back to the rail (separating the bar space from the public .space) and make part of his speeches to his friends in the audience when he bad some particularly cutting remarks to make" Testing Wilson's concept concerning the demeanor of a lawyer in the examina- tion of witnesses, particularly the cross-examination of witnesses called by the opposing party, about which the Company's counsel so often and vigorously 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complained during the hearing in the Ohio Oil, Company case, the attorney foi Respondent Camp made certain inquiries of Wilson (Tr. 135). Q. (By Mr. Rairrs:) Do you think it proper in the conduct of a case to insult witnesses for the other side. A. Some people consider some things to be insults that other people do not consider insults ; but generally speaking witnesses should not be insulted in my opinion. I can conceive of an instance where a witness might so testify or so conduct himself as is perhaps worthy of an insult even from an attorney. Q. Do I understand the effect of your answer is that generally speaking witnesses should not be insulted, that sometimes they should. A. Sometimes, I would not say should, but sometimes I can understand where an attorney might insult a witness-possibly should not-but I can conceive the. circumstances where he would and it would be in my opinion excusable. Q. You think it proper in the conduct of a case to ridicule witnesses who testify for the other side. A. It's almost the same answer that I gave in connection with insulting witnesses. Sometimes, well, I can conceive the circumstances where it is not so much the attorney who is ridiculing the witness as the witness who has made himself ridiculous and counsel could comment on how ridiculous the witness has become. I do not think it proper for counsel to make it his business to ridicule a witness. I can conceive of the situation where because of circumstances, it would not be unprofessional conduct for counsel to do what I'd conceive to be ridiculing the witness. Arrangement of Courtroom at Rankin, Texas, Where Hearing in Ohio Oil Company Case Was Held The hearing in the Ohio Oil Company case, during the first 6 days, was held 'in the courtroom of the district court located on the second floor of the county courthouse at Rankin, Texas. Respondent's Exhibit 4 is a sketch drawn to scale showing the plan and arrangement of this courtroom. The courtroom is 36 feet, 4 inches east and west and 40 feet, 9 inches north and south. It is 16 feet, 8 inches from the west wall to the rail which separates the bar enclosure from the public space. A platform extends from the center of the west wall on which, at the center, is the judge's bench. Reference in the testimony herein as to di- rection, as left or right, means as one within the bar enclosure faces or looks toward the judge's bench, i. e., faces toward the west. Adjoining and in line with the judge's bench on the right or north side is the desk of the clerk of the court, and on the left or south side the desk of the court reporter. The reporter who covered the hearing in the Ohio Oil Company case did not use this desk. Instead she took a position with her stenotype machine slightly to the front and to the left or south of the witness box. To the left or south of the court reporter's desk is the witness box or stand. It is 10 feet 3 inches from the front or east side of the judge's bench to the bar rail. There is a row of 10 folding, theatre-type chairs within the bar enclosure, against and along the bar rail between the north and south swinging gates in the rail. This row of chairs, which does not extend the full distance between the gates, is directly opposite the judge's bench. The counsel table is 3 feet wide and 7 feet long. It extends lengthwise east and west with the east end back against this row of theatre-type chairs along the bar rail and the west end extending to and being 1 foot 33/4 inches from the front of the judge's bench. Thus the space between the west end of the table (the end JOHN L. CAMP 95 of the table is 3 feet in width) and the judge's bench is 1 foot, 3% inches. There is no open space or passageway at the east end. The judge's bench is 5 feet, 4 inches in width and the left or south side of the counsel table is about on a line with the left or south side, or southeast corner of the judge's bench. The judge's bench is 471/4 inches high, from the floor of the courtroom to top of the bench. The counsel table is 303/8 inches high. There is just about sufficient room, on each side of the 7-foot-long counsel table, for two attorneys seated one behind the other, facing the judge's bench, to sit at and alongside the table. It requires only a step for the one seated in the front to reach the judge's bench. The other could move to the bench in two or, at most, three steps. 8. Sixth day (Wednesday, October 26, 1949) On this sixth day of the hearing the cross-examination of Bascom was resumed and was still in progress when the hearing was disrupted and terminated by the assault. During the presentation of Respondent Company's case, Camp and Tell oc- cupied the two chairs alongside the left (or south) side of the counsel table and Foreman Phillips sat just back of them in the row of chairs along and against the bar rail while Wilson, Davidson, who sat in as an advisor to Wilson through- out the hearing, and a union representative, F. H. Mitchell, when present, occu- pied the right side of the counsel table. Wilson said that he remained standing throughout his "examination of any witness," and when "presenting an argument to the Trial Examiner," and that on occasion during cross-examination of the Company's witnesses he crossed over, through the 1-foot, 3.'4 inch space or pas- sageway between the west end of the counsel table and the front of the judge's bench, to the left of the counsel table and stood near the witness box while carrying on the interrogation. On the morning of October 26, 1949, as the hear- ing was resumed with Bascom still under cross-examination, the position of the attorneys and Phillips and Davidson was as above stated,' with Tell who had conducted the direct examination of Bascom seated in the front chair on and alongside the left side of the counsel table and Camp occupying the second chair directly back of Tell. During his direct examination Bascom had testified (OTr. 569, 570, 571, and 572) that on one occasion in March' 1948, he drove up to well No. 2A and found Davidson and Buchanan "sitting in the dog house" while the other two members of the rotary rig crew "were out at the well" engaged in "closing the master gate," that he told Davidson and Buchanan "they should be out there helping those fel- lows close that master gate," that Davidson and Buchanan said, "We are just, warming our hands," and that Davidson and Buchanan "got up and put on their gloves and went out to the corner of the rig and then over to the mud pump" but during the short time he remained there they did not help the other two men close the master gate. Asked who the other two members of the rotary crew were on that occasion, he named them as Glen Hale and Marion Windland. In the course of the cross-examination on this sixth day Wilson commenced (OTr. 757) to interrogate Bascom concerning his testimony, above related, in substance that in March 1948 he found Davidson and Buchanan in the "dog house," at one of the wells, warming their bands while the other two members of the crew were engaged in trying to close the master gate. Wilson's interrogation with Bascom's answers (OTr. 757, 758, 759) were as follows: Q. Do you know a former employee at Iraan on the Yates field named Marion Windland? 6 Apparently Mitchell was not present in the courtroom on this day. 7 He said : "I believe it was in March ( 1948 ) as well as I can remember." 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Yes, Sir. Q. He was transferred to New Mexico in December of 1947, was he not? A. Yes, sir. Q Did you have anything to do with his transfer? CAMP Just a minute. Did you mean December 1947? WILSON I meant exactly what my question was; yes, sir. CAMP All right. A. No, Sir; I did not. Q How do you fix the date of the transfer to New Mexico as December 1947? A Well, I don't know that'that is the exact date but it is sometime along about that time, approximately. Q. It may have been earlier than December 1947? A It may have been. Q. What is your last recollection as to the date? A. As well as I can recollect, it was in December 1947. Q. At the time he was transferred, he was not working on rotary rigs, was he? A. Yes Sir, I believe he was. Q What crew was he on? TErL. That is objected to. I don't see how that is material to the issues in this case. WILSON In the absence of the witness I will explain the materiality. I consider it quite material in consideration of his direct examination TRIAL. EXAMINER. I will take the answer subject to motion to strike. TELL Thank you. Q What crew was he on at the time that he was transferred? A. I don't remember what crew. Q How many (rotary) rigs did you have at the time he was transferred, that is, back in December 1947?' A. There were three rigs. Q. Who were the head well pullers No. 1 on each of those three in Decem- ber 1947') A. That I don't remember. Q Glenn Hale was not a head well puller No. 1 at that time, isn't that so? A. No sir, I don't believe he was. Q So that at the time that Marion Windland was transferred he was not working on a crew with Glenn Hale? A. Well, that I don't know Q Do you know Al Phillips, nephew of Charlie Phillips? A. Yes sir. Q. He worked for the company? A. He worked a while for them, yes sir. Q Will you tell us when he started to work and when he stopped working? A. No sir. At this point, and beginning with first line on page 760 , the transcript in the Ohio Oil Company case shows the following: (OTr. 760) 1. Dir. TELL. Object to the materiality. 2. Trial Examiner KENT What is the materiality? 3. Mr. WILSON. May the witness be excused? I am sure that 4 I can satisfy the Trial Examiner , but at the same time- 5. Trial Examiner KENT..YOU may step out. JOHN L. CAMP 97 6. (Witness excused from the courtroom ) 7. Mr. WILSON. It will not take more than a moment. 8. Mr. CAMP. Your Honor, may we all have a recess? 9. Trial Examiner KENT. We will take a recess when he explains 10. the purpose. 11. Mr. WILSON. This was this man's testimony on direct exam- 12. ination. We will recall that now lie has testified that Windland 13. was transferred in December of 1947. On direct examination he 14. testified that in March of 1948 he reprimanded Buchanan and 15. Davidson for being in the dog house at a time when Glen Hale 16. and Marion Windland were trying to close a master gate. I am 17. trying to establish-I believe I have-I ain establishing 18. that Windland wasn't even there at the time and that a man named 19. Al Phillips was in March of 1948, was part of the crew of Glen 20. Hale, Jack Davidson and Buchanan. 21. Trial Examiner KENT. How is that material to the issues 22. in this case? 23. Mr. WILSON : If nothing else, credibility. 24. Mr. TELL. Well, Mr. Kent, I submit that attacking the 25 credibility of the witness on small details that are not 26 material to the issue of this case, while I understand 27. counsel's purpose in attempting to do so, I think it is highly 28. irrelevant. 29. Mr. WILSON. Credibility is always an issue for one thing, 30. and a second thing, aside from that, this is one of the reasons 31. they say they were fired On direct examination he went through 32. the various misdeeds of Buchanan and Davidson and one of the 33. misdeeds is they were in the dog house instead of being out 34. working and certainly if his recollection is it was at a time 35. when Glen Hale and Marion Windland were working, it turns out 36. Windland wasn't there, then the rest of the story can fall flat 37. because the rest of the story, I am satisfied, I know is not 38. true from what I have heard from my witnesses here, and that is 39. what I hope to show. 40. Mr. CAMP. We object to this continually trying to- 41. (Mr. Camp struck Mr. Wilson.) 42. Mr. WILSON. I would like a report on the record, sir. 43. Will the Trial Examiner please make a report on the record of 44. the-of the to say at least unfortunate incident which has 45. just taken place. 46. Trial Examiner KENT. Off the record. 47. (Discussion off the record.) 48. Trial Examiner KENT. Recess until 1: 30. 49 (Whereupon, a recess was taken until 1. 30 o'clock p. in As a means of convenient reference in the course of my review of the evidence, discussion, and conclusions, which follow, I have numbered the lines in the foregoing verbatim excerpt from the transcript in the Ohio Oil Coinpany case covering pages 760 and 761 thereof Preliminarily I note the following: (1) That line 41, in parentheses.-(Mr. Camp struck Mr. Wilson), was not included in and was not a part of the re- porter's notes. She did not make any such record or notation at the time the event occurred, that was apparently inserted when the transcript was typed; (2) that there is considerable controversy as to what further or additional was said by Camp, and what, if anything, was said by Wilson at and after the point where the dashes commence, in line 40, and immediately before the assault, 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which the reporter was unable or failed to record; (3) that the assault occurred at approximately 10: 45 a. m., and that the entry at line 49 showing a recess until 1: 30 p. m., was made at approximately 11: 15 a. m. or about 30 minutes after the assault; and (4) that between the time of the assault and the statement of Wilson commencing at line 42, there was some colloquy, some inquiries, and numerous statements among and by various persons, including Wilson, the county sheriff, Tell, Camp, and the Trial Examiner, none of which were taken by the reporter and, of course, do not appear in the record. a. The assault At the time Wilson requested that the witness (Bascom) be excused, the Trial Examiner directed the witness to "step out" and Camp requested a recess, cov- ered by lines 3 to 8 inclusive, Wilson was standing on the right or north side, about midway, of the counsel table, "immediately across from" Camp who was seated in the second chair on the left and alongside the counsel table (Tr. 65 and 170). Camp stood up when he made the request for a recess (line 8) but resumed his chair when the Trial Examiner said (line 9) : "We will take a recess when he [Wilson] explains the purpose." Thereupon (Tr. 65) Wilson approached the judge's bench (occupied by the Trial Examiner). Tell, who ssas standing at the time he made the objection shown at line 1 resumed the front chair on the left side of the counsel table, where he had been sitting during the examination of Bascom. When Wilson moved to the judge's bench Tell arose and took the one or two steps forward to the judge's bench' At the judge's bench Wilson took a position facing the Trial Examiner with the left side of his body "slightly" within the space between the end of the counsel table and the judge's bench, "but for the most part" he "was to the right of the counsel table" (Tr. 168, 169). This placed him about 18 inches from the northeast, or right hand, corner of the judge's bench. Wilson leaned forward against the bench, with the "weight of" his "chest against the bench," and his "arms (or elbows) upon the bench" (Tr. 172). Wilson says he remained in that same position until he was struck (Tr. 173). When Tell stepped to the judge's bench, he took a position at the left edge or left corner of the bench facing the Trial Examiner (Tr. 300 and 336) and remained there throughout the ensuing colloquy and until Camp assaulted Wilson. Thus Tell and Wilson were not standing side by side and shoulder to shoulder squarely in front of the judge's bench, as some scattered statements in the testimony on the part of the General Counsel seems to suggest. Instead, with Tell at the left or south corner of the bench and the right side of Wilson's body within approximately 18 inches of the right or north corner there was easily a space of at least 24 to 30 inches, if not more, between them. Wilson's independent recollection of what was then said, and what then occurred, at the bench is somewhat vague. On direct examination he said he remembers talking to the Trial Examiner and "can clearly remember Mr. Tell speaking" (Tr. 67), that he "was not conscious of anybody else moving to that ,point or near that point (the judge's bench) during the time" he (Wilson) was "making the remarks reflected by the record at pages 760 and 761" (Tr. 68), covered by lines 11 to 39 of the above excerpt, that he "heard Mr. Camp's voice, heard him [Camp] saying something and that is all I knew for a while until I learned it was John Camp who struck me" (Tr. 68 and 69), and that he does not "now recall" how he learned "that Camp struck the blow." On cross-examination Wilson said (Tr. 174) : "I have no recollection what- soever of seeing Mr. Camp or being aware, in fact, that Mr. Camp was next to 8 The chair in which Tell had been sitting was at the most not over 3 % to 4 feet from the judge's bench. JOHN L. CAMP 99 me. I have a recollection of Mr. Camp's voice next to me ... That is the only awareness, as a result of his speaking" but that he has "no independent recollection . . . of anything" Camp said. Here the following questions were asked, on cross-examination, and answers given (Tr. 174, 175 and 176) Q. The words "We object to this continually trying to-" (line 40) is not all that Mr. Camp said? - A. Well, I don't know whether it's all or not. I do not recall what he said. He may have said more, he may have said less. I have no inde- dependent recollection of what he said. Q. But you never were aware that he was at the bench? You are only aware of hearing his voice? A. And to that extent was aware of his being around there. i * S • i Q Now, what is your next recollection? A. My next recollection is that of an upheaval, of a movement- I could put it this way, if I may. It's as if, well, hit by a car that I didn't see but I guess I knew something happened. I had a feeling of going. Q. Had a feeling of what? A. Going, of movement. Q. Were you aware that you were hit? A. No sir. Q. Then what next event can you recall? A. . . . My first general recollection, that I consider to be the first, is of a man in a white shirt being near me. Continuing Wilson said that he does not know whether he was "getting off the floor or was already off the floor" at the time he "saw the man in the white shirt" (who he subsequently learned was the county sheriff ) but recalls "a feeling something has happened to me and did this person do it." Davidson and his wife, Mrs. Buchanan, wife of the other dischargee in the Ohio Oil Company case, and Mrs. Rosalie K. Ackin, who reported the Ohio Oil Company hearing, testified to the circumstances surrounding and attending the assault as witnesses for the General Counsel. Davidson, who as has been noted sat at the counsel table with Wilson as an advisor or conferee throughout the hearing in the Ohio OR Company case, im- mediately before and at the time of the assault was seated on the right or north side of the counsel table. He testified that Wilson and Tell went to the judge's bench, that as they stood there facing the Trial Examiner, Wilson addressed the Trial Examiner (Tr. 250), that he did not hear Tell say anything during this conference at the bench (Tr. 252), that "the next time" he observed Camp after the time Camp arose from his chair and requested a recess (line 8) Camp was going around the west end of the counsel table (from the left side of the table) "talking in a low tone" (Tr. 228), that he "did not understand" what Camp was saying "well enough to put it altogether" but as Camp got near the end of the table he heard Camp say "something about making liars out of their clients or something" (Tr. 250), that as Camp went around the end of the table he (Camp) "either pulled or shoved Mr. Tell to one side" (Tr. 250) and "caught Mr. Wilson by the shoulder or arm and spun him around and hit him" (Tr. 228), that "when he (Wilson) was hit, he went down on the floor"' and Camp "went down on top of him" (Tr. 229) and "grabbed him, possibly at his collar, and caught him by the neck or throat, and hit him once with his fist, and I caught his right arm (Tr. 230) and Mr. Tell and I pulled him (Camp) off of him 9 Wilson fell to the floor on the right or north side of the counsel table beyond and north of the north or right corner of the judge's bench. 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (Wilson) and I went back and assisted him up" (Tr. 230). Davidson further said that he did not hear Camp '.say anything" after he got to the judge's bench, "he just shoved Mr Tell, and grabbed Mr. Wilson and spun him around and hit him" (Tr. 252). Describing what was clone in "separating them" (Tr. 232), Davidson said Tell "grabbed" Camp "under the arms . . . went in under his arms and caught him and I had his right arm" and that they "pushed" Camp back through the space between the end of the counsel table and the judge's bench and "then Mr. Tell pushed him on back and told him to sit down" (Tr. 231), and that while "we were separating them he (Camp) was still trying to hit him (Wilson) and was kicking." Immediately prior to and at the time the blow was struck Mrs Davidson was seated in the second row of seats in the public space east and back of the bar rail (Tr. 260, 261). Notwithstanding an agreement between Counsel on approxi- mate distance was made in the courtroom of the United States district court at Fort Worth (Tr. 261), a measurement of the distance, by scale, on the plat of this courtroom at Rankin, put in evidence by Respondent Camp, shows the second row of seats to be approximately 16 feet from the judge's bench. Mrs. Davidson's testimony about the assault, on direct examination, can best be set out by quoting, up to a point, the questions propounded by the attorney representing the General Counsel and her answers thereto (Tr. 254, 255) : Q Immediately prior to the time Mr. Wilson was struck, where was Mr. Camp, if you observed him? A. He was seated at the left of the counsel table facing the judge, at the back of the table. Q. All right, beginning at that point, tell us what you observed Mr. Camp to do and the manner in which he did it? A. He started to raise up out of his chair and he got about half way up and asked for a recess (line 8) and the judge said he would hear that matter first and then he (Camp) just rushed madly around the table. Q May I ask, you have stated that he got out of his chair, started to get out of his chair when he asked for a recess? A. He sat back down at that time. Then Mr. Wilson and Mr. Tell came to the judges bench. Mr. Wilson was addressing the Trial Examiner. Q. Then I believe you stated Mr Camp rushed around the bench-what did you observe him do at that time? A. He jerked Mr. Tell or pulled him out of his way, jerked Mr. Wilson around and hit him in the eye. Q. What did you see Mr. Wilson do when he was struck? A. His arms fell to his side, limp, and he went to the floor. Continuing on direct examination, Mrs. Davidson said that after Wilson "went to the floor" Camp went "down over him" and then she "jumped straight up and stood" (Tr. 256), that Mr. Tell "came up behind him (Camp) and pulled him and Mr. Davidson had him by the arm" and they pulled Camp "back away from Mr. Wilson and he (Camp), was kicking at Mr. Wilson. I saw his feet kicking in that direction" On cross-examination Mrs Davidson withdrew or at least reduced somewhat the term "rushed madly" which she had used on direct examination and the term "rushed" which the General Counsel's attorney had used in describing Camp's movement to the bench and substituted "walked hurriedly" (Tr. 272). The distance from the second chair where Camp was seated to the judge's bench was not over, I would estimate, 5 or 6 feet She further said, on cross- examination (Tr. 272), that when Camp hit Wilson "it looked like" Camp "was JOHN L. CAMP 101 talking" but she "couldn't hear it . . looked like his mouth was in motion" and that Camp "never hesitated at the bench." In view of this testimony that Camp "never hesitated at the bench," she was asked concerning a statement she had made in her affidavit taken by Wilson, when he interrogated her and other persons on the afternoon of the day the assault occurred. There Wilson inquired, and she replied as follows: Q. As I understand it, you saw him (Camp) come up Did he get as near to me as Mr. Tell was or was he nearer? A. Yes, sir, he (Camp) walked up there and all three of you faced the table (the judge's bench) at first. Mrs. Davidson's explanation of this on cross-examination was that she meant that Camp "walked up there just as if he aimed to say something, maybe to the Trial Examiner, I don't know, but it was all just that quick, and he turned and then grabbed him (Wilson) by the shoulder. There was no pause" (Tr. 273). Mrs. Buchanan's testimony concerning the assault is in essential agreement with that of Airs Davidson. Mrs. Buchanan said (Tr. 277) that Tell and Wilson were standing at the judge's bench and Wilson was addressing the Trial Examiner, that "all of a sudden" Camp "jumped up" and "rushed over" to the judge's bench, and "jerked Air Tell around and hit Mr. Wilson in the eye," that (Tr 278) Camp first "jerked him (Wilson) around" and then hit him, and Wilson "fell to the floor," that Camp then "rushed over on top of him" and Tell "rushed in, got hold of Mr. Camp and began pulling him (Camp) off of him" and "Mr. Davidson kinda pushed Air Camp back and assisted Mr. Wilson to his feet." Coming, in the course of the direct examination of Airs. Rosalie K Ackin, the reporter, to the circumstances surrounding the assault, the attorney for the General Counsel first inquired and Airs. Ackin answered as follows (Tr 284) : Q. I now call your attention to page 761 of the official transcript of that proceeding (lines 26 to 49 of the excerpt above) and will ask you to state if it appears to correctly reflect what you saw and what you heard at that time and on that occasion? A. It does up to a cartama point. Q. And to what point do you make reference, Mrs. Ackin? A. I make reference to the fact Mr. Camp said something in addition. Continuing on direct examination, Airs Ackin said (Tr. 285) that Camp made some statement "in addition" to what is reflected by the record- on page 761, (at line 40) where it reads: "Mr. Camp: we object to this continually trying to . . ." and that Camp said "just a few words in addition to that." As Airs Ackin recalls (Tr. 286), at the time Wilson commenced the statement beginning at line 11, supra, he and Tell were both at the judge's bench facing the Trial Ex- aminer with their backs to the counsel table, and she thinks "it was sometime during" Wilson's remark (line 29) "credibility is always an issue" that Air. Camp "very hurriedly left his place at the counsel table, rushed in front of me and as I recall pulled Mr. Tell to his left and placed hvrnself (at the judge's bench) between Mr Wilson and Mr. Tell " She said that Camp was not "saying anything while he was moving from his position at the counsel table to a position at the judge's bench," that after Camp took a position at the judge's bench between Tell and Wilson (Tr. 287) "there was an interval of less than a minute. Perhaps a few seconds during which time Mr. Wilson finished talking" (line 39), that then "Mr. Camp started to talk and it was very difficult for me to hear. I heard a few words and I believe it was at that point that I sang out, `can't hear you' and I had gotten as much as appears on the record (line 40). 974176-52-vol. 96-8 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. Camp was still talking . . . and was turning further from me to his right, toward Mr. Wilson," and "I believe the blow was struck while Mr. Camp was talking, that is my recollection." The foregoing constitutes the testimony offered by the General Counsel con- cerning the actual assault. Respondent offered the testimony of Camp, Tell, Foreman Phillips, and Trial Examiner Kent as to the assault and circumstances immediately attending same. During Wilson's cross-examination of Bascom that morning, shortly prior to the line of questioning which was halted by Tell's objection at line 1, Wilson had fully interrogated Bascom about the complaints made by Davidson and Buchanan after the cut-back in working hours about July 1, 1948, and the nature of same as reported to him by Foreman Phillips and by Bascom to Sears. Tell and Camp felt and held the conviction that both Gwilliam and Bascom had testified truthfully not only about these complaints and how such complaints together, as the company claimed, with other considerations, had prompted the discharge of Davidson and Buchanan 10 but as to all other material matters covered by their testimony and that accusations that Gwilliam and Bascom were lying, were not telling the truth, were engaged in contradicting themselves under oath, and like aspersions made in the course of arguments to the Trial Examiner going to the admissibility of evidence or the materiality of a line of cross-examination, were improper and unwarranted. Further on cross-exam- ination just shortly before the assault, Bascom with no effort at equivocation admitted that he had been in error when he named Windland as being one of the members of the 4-man rotary crew on which Davidson and Buchanan were working when he said he found them (Davidson and Buchanan) in the "dog house" on one occasion in March 1948. It was the belief of Tell and Camp that the fact that Bascom who had something like 80 men under his supervision was mistaken, in October 1949, as to Windland being a member of that par- ticular 4-man crew in March 1948, did not, in and of itself and without more, warrant an accusation that his testimony about finding Davidson and Buchanan in the dog house was false or untrue. Such was the attitude of mind on the part of Tell and Camp when Tell lodged the objection at the top of page 760 of the transcript in the Ohio Oil Company case, line 1 above. Camp testifying in this proceeding said he has no recollection now why he requested a recess, line 8, that ordinarily in making such a request, under such circumstances,-it was to go to the "rest room." This will be later referred to in connection with the present interpretation given the incident by Wilson and the General Counsel. When Wilson and Tell went to the judge's bench Camp remained seated in the second chair at and alongside the left side of the counsel table giving atten- tion however to what was being said at the bench. Camp's version of what then occurred, in substance, with some verbatim quotations follows. When Wilson in reply to the Trial Examiner's inquiry (line 21), "How is that material to the issues in this case," said (line 23), "If nothing else, credibility," Camp arose from his chair and started to the bench (Tr. 540, 626, 642). Camp says io The Company's witnesses admitted that the complaining of these two men was one ground of the discharges. Since, however, the charge upon which the complaint was based alleged merely that Davidson and Buchanan were discharged because of their activities on behalf of the Union, and did not mention or allege any other concerted activities, counsel for the Company relying upon the decision of the United States Court of Appeals for the Fourth Circuit in Joanna Cotton Mills, 24 LRRM 2416, decided the previous August, had taken the position the alleged concerted complaints were barred by the statute of limitations. JOHN L. CAMP 103 he has no recollection of hurrying but that he walked to the judge's bench (a distance of possibly 6 feet at most ), passing between the front chair which Tell had occupied on the right and the reporter 's stenograph machine on the left.' He said he "would think" he "was on the way to the bench " at the time Tell made the statement at line 24 commencing , "Well, Mr. Kent, I submit." He went to the bench "to help Bill Tell out in the argument" ( Tr. 627 ) and "to assist in the discussion" ( Tr. 120 ). At the bench he went in between Tell and Wilson and stood in the space between the west end of the counsel table and the bench "squarely in front of and facing the judge's bench" ( Tr. 542, 543, 641) with Wilson ' on his right and Tell on his left ( Tr. 543 ) and "shoulder to shoulder" with Wilson ( Tr. 542, 543 ). Camp said he had heard the testimony that he "jerked Mr. Tell back" but does not "recall anything like that" and does not "recall that I was in a hurry" ( Tr. M). As'Camp took this position at the bench , as described, facing the Trial Ex- aminer, Wilson was making the statement commencing at line 29 with "credi- bility is always an issue" and continuing through line 39 ( Tr. 542). Camp .said ( Tr. 542 ) that when in concluding this statement Wilson asserted "that Mr..Bascom's testimony that he bad found the men [Davidson and Buchanan] in the dog house and ordered them back to work was not true ," it "was said in such a way that there was no doubt in my mind as to what Mr . Wilson meant by it. I was and am convinced that Mr. Wilson meant that Mr . Bascom was lying. It was a matter about which Mr. Bascom could not have been mistaken, Mr. Bascom was either lying or telling the truth and the statement that it was not true was equivalent under the facts to a statement that he was lying. Mr. Wilson was here arguing his case as he went along ." It will be noted here that, even in arguing his case, as Camp charges , when Wilson asserted that "the rest of the [Bascom's) story I know is not true from what I have heard from my witnesses here" (lines 37 and 38), he was tendering to the Trial Ex- aminer his own personal opinion of Bascom 's truthfulness based apparently upon something his witnesses purportedly had told him privately and not upon any testimony given by them on the witness stand . The gratuitous accusation, as Camp viewed it, against Bascom, angered Camp . As Wilson completed his statement (line 39), Camp made the objection shown at line 40, commencing with "we object to this continually trying to -." Camp testified ( Tr. 543) that the remainder of his objection, which the reporter said she did not hear, was : "impeach the witness on immaterial matters, and the repeated statements of counsel that the witnesses for Respondent are not telling the truth." [Em- phasis supplied.] According to Camp (Tr. 543), "When I said that , Mr. Wilson looked at me and said : `They" have been lying all the way through'." 12 'Camp says that when Wilson made this accusation that both Gwilliam and Bascom had been lying "all the way through" : I utterly and completely lost control of myself . What I did from there on is not too well fixed in my mind . (Tr. 543) I do recall shoving Mr. Wil- son. I must have done it with my left hand. I partly turned him and shoved him several feet (Tr. 544). I had to get out of this narrow space between the counsel table ( and the judge's bench ), and I stepped after Mr. Wilson and struck him in the jaw. Mr. Wilson fell to the floor, and I went right straight on top of him, and he was trying to get up and I was trying to hit him again. My knees were on each side of him. I was 11 Meaning Respondent's witnesses, Gwilliam and Bascom. 12 The testimony of Camp and the witnesses on his behalf in that connection is that the portions underlined substantially reflect what was said by Camp and Wilson respectively at and after the point where the dashes appear in line 40. 104 bECISIONS OF NATIONAL LABOR RELATIONS BOARD astraddle - of him My weight was across his stomach or chest. He was lying flat on his back and had his teeth gritted and he was trying to ward off the blow. I struck at hint and one of his hands deflected my blow and I hit him squarely in the eye. That lick sobered me up completely. By that time Mr Tell had his arms around me from the back and around my arms , and he pulled me backwards . As he was pulling inc backwards, Mr. Wilson raised to a sitting position . It is my recollection that Mr. Kent, by that time, was down on the floor . . . (Tr. 545). I have heard the testimony that I kicked or attempted to kick Mr. Wilson. ' I did not kick nor did I attempt to kick Mr. Wilson. After pulling me off Mr. Wilson, Mr. Tell kind of shooed me back through this space " to my side of the [counsel] table , and it is my recollection that Mr. Kent rather joined in the shoo-in, whatever the proper word would be for it. They didn't drag-me through I went through. I realized then what I had done Mr. Kent resumed his seat on the bench. Mr. Wilson was getting to his feet in the meantime . I was seated somewhere on the left side of the counsel table and Mr. Wilson looked at me and said , "That was a silly thing' to do," and Judge Kent looked at him and said, "you were out of line in your remarks. In giving Till's version of the assault and the circumstances immediately- preceding I shall largely quote from his testimony . Tell said that during the conference at the judge's bench he stood at the left edge or corner of the bench and Wilson "at more or less the right third of the bench " ( Tr. 336 ), that the discussion at the bench was "substantially as recorded by the reporter up to ii certain point" 14 and that he cannot "say where in the record is the exact time" Camp arrivgd at the bench but is sure Camp was there before he ( Camp) made the statement, line 40, commencing, "We object to this continually trying to (Tr. 336 ). Continuing Tell testified ( Tr. 300, 301, 302, 303,) I have heard certain witnesses testify that Mr. Camp pushed or pulled me out of the way and placed himself between Mr. Wilson and myself. I have no- recollection of Mr Camp pushing me aside . . . I have a recollection of Mr. Camp standing before the judge's bench on my right and to Mr. Wilson's left ( between Wilson and Tell ) at the time he made this objection: "We object to this continually trying to -" and some plank spaces. I believe I can Jill in those blank spaces and believe the language was this, impeach the witnesses for Respondent on immaterial issues and to the repeated state- ments of counsel that witnesses for the Respondent are not telling the truth. At that point , Mr. Wilson made a statement , the first portion of which I can remember. He said, "They have been lying all the way through." He made some additional remark, the language exactly of which I can not recall. I can give you the impression that it left upon me if you want me to do that. Mr DAVIS . We object to the impressions. Mr. RHETTS. I just want you to testify as to what you recall . After Mr. Wilson made this statement-and keep in mind things moved rather rapidly from that point forward-Mr. Camp using his left arm, spun Mr. Wilson around and pushed him . . . . As he ( Wilson) was standing there originally I suppose he was half and half but the motion that Mr Camp used put him (Wilson) immediately outside the counsel table Mr. Camp stepped forward and hit Mr Wilson one blow and Mr. Wilson went down on the floor . . . I recall saying "Stop it; stop it," Mid at that same moment I recall Mr. Camp assuming a position on his knees astride of Mr. Wilson's body . . . I recall that at that time Mr. Camp, using his right hand, hit. 11 Between the west end of the counsel table and the judge's bench. 14 Reference is to the point indicated by dashes or blanks in line 40., JOHN L. CAMP 105 Mr. Wilson one blow before I could do anything about it At that time Mr. iFilsou appeared to me to be attempting to defend himself. He wasn't just lying there kayoed or unconscious, so to speak, he was reacting to what was going on. I put both my arms around Dir. Camp's body, encircling both of his arms and grasped my fist in front of his chest . . . and proceeded to pull Mr. (Camp away from Mr. Wilson with an upward and backward motion. Mr. Davidson was helping Mr. Wilson to his feet at approximately the same time. Once I had Dir. Camp to his feet we walked around, I don't be- lieve I used any force to get him around to the other side of the table and I told him to calm down and to sit down Mr. Wilson arose to his, feet with Mr Davidsons assistance and a few seconds later said, "That was a silly thing to do." ,[Emphasis supplied.] No material variations of any kind in this statement of the matter by Tell developed on the cross-examination. Phillips, the foreman, was seated on the left side of the counsel table, in one of the chairs in the row of chairs attached to the bar rail and back of Camp. He was thus about 7 or 8 feet from the judge's bench He could not say at just what point Camp went to the judge's bench but that Camp "just got up and talked up there in front of the Judge like he did several times in the Trial . . . I didn't notice any difference in the way lie went up there" (Tr. 479), "He walked up there" (Tr. 473) - He testified that Camp was stand- ing at the bench between Tell and Wilson. He said Camp (lid not hit Wilson "as soon as he got to the bench" and that "it couldn't have been very many mihutes, maybe a minute, or a .minute and a half" that they were all three at the bench before Camp struck Wilson He testified, that he "could hear some things" they said at the bench but "wasn't paying much attention to it because" he "didn't know anything about it and wasn't trying to hear" (Tr. 482), that he heard Wilson say something about Windland, Davidson, and Buchanan (Tr. 478)'5 and heard Wilson "saying something about the witnesses lying and thats about all I got out of it and about that time Camp hit him" (Tr. 474), that Camp first "pulled" Wilson "around and then shoved him and hit him" (Tr. 483), at that he (Phillips) "jumped up" (Tr. 461), that Camp went down on his knees over Wilson, that Wilson threw up his arms and "tried to push Camp off and keep Camp from hitting him again" (Tr. 483, 484), that Camp did not resist Tell's efforts to pull him away from Wilson (Tr 484), and that he never saw Camp do any kicking. Trial Examiner Kent was called as a witness by Respondent Camp. As he recalls, both Wilson and Tell- were at the bench. Wilson standing "slightly to my left" (as Kent faced east) and Tell to the right. He estimates that Tell was "a couple of feet" from Wilson (Tr. 671) and then Camp came to the bench "and moved in between Tell and Wilson " He has no recollection that Camp "moved Tell violently to one side in order to assume that position" (Tr. ,687). Continuing, the Trial Examiner testified that Camp was in this posi- tion at the bench "for some short period while Mr Wilson was speaking" (lines 29 to 39 inclusive), that during that statement Wilson said "in substance, that from what he had been informed by his witnesses he was convinced that the witness on the stand was lying" (Tr 657), that it was then Camp interposed the objection, the first few words of which are shown at line 40 followed by dashes (Tr. 657, 668), that as shown by the record, line 40, Camp said: "We 15 His answers liter in the cross-examination bring this statement into doubt as to whether it was at this time or other times in the hearing that lie heard Wilson talking about the Windland matter. 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD object to this continually trying to ..." and that the remainder of the objection was in substance18 "impugn the veracity of this witness" (Tr. 657), or "impugn the character of this witness," or "our witnesses" (Tr. 669) or "my witness" (Tr. 690), that Wilson then "interposed" (Tr. 669), both Camp and Wilson seemed to be "attempting to talk at once" (Tr. 689), and said something to the effect," "He is not the only one" or "This is not the only one" (Tr. 669), that he (Kent) was "turned more (at that instant) towards" Wilson (Tr. 683) and it was as Wilson made the rejoinder to Camp's objection that he (Kent) saw "Mr. Camp's arm move in Mr. Wilson's direction" and "Mr. Wilson dis- appeared from my vision" 18 (Tr. 657), that he "hopped off the bench within, I would say, a couple of seconds" (Tr. 658) and went down on the floor of the courtroom (Tr. 676), that it was a "momentary proposition" and he "did not get down on the floor quick enough to see just what happened before he (Wilson) was up" (Tr. 677), that Wilson then turned to Camp and said: "That was a silly thing to do. I don't remember anything like that ever happening in a courtroom before" (Tr. 658), that he (Kent) "interposed" and said to Wilson (Tr. 658) "I don't think you are entirely in the clear. Some of the things that have been said might better be reserved for final oral argument," that thereafter there was a "colloquy back and forth,"" none of which was taken by the reporter but which occurred before and prior to the entry of "off the record" at line 46. Respondent Camp called as a witness H. E.-Eckols, sheriff of Upton County, of which county Rankin is the county' seat. He testified tht he was in his office on the first floor of the courthouse, directly under the second floor court- room.where the hearing was in progress, that he heard "quite a commotion" in the courtroom "like some chairs turn over 20 ... sounded like a scuffle of some sort," that hp "rushed" up a back stairway leading from his office to the courtroom and entered the courtroom through the door back of and north of the judge's bench and came into the room on the north or right side of the counsel table, that not over 20 seconds elapsed from the time he left his office until he reached the courtroom, that "it looked like there had been a ruckus, those two chairs (on the right or north side of the counsel table) were turned over on the floor and Mr. Wilson had just gotten off the floor" (Tr. 339) and Camp was seated on the left side of the counsel table (Tr. 440, 455), that Wilson "probably was the first one I saw when I came in the courtroom," that he went to Wilson. who was standing with Davidson "holding onto him at the time,"" that the first thing that was said was by Wilson, something to the effect, "That was a silly thing to do," and then "he (Wilson) said he had been practicing law some 15 or 16 years and in the Magistrates Court in New York and various places and this was the first time he had ever seen anything like that happen, and then I asked the Trial Examiner," who by that time had resumed his seat at the bench (Tr. 448, 449, 455), "what had been going on and he said, they had a little fight (Tr. 441) . . . and I asked him what caused the fray or ruckus, and he said that both of them were out of line, that Mr. Wilson was out of line in the remarks he had addressed to Mr. Camp" (Tr. 444). 10 The Trial Examiner does not undertake to state the exact words used but gives his recollection of the import of what was said. 17 The observation made at footnote 16, supra, applies here. 19 The top of the judge's bench is 472/4 Inches from the courtroom floor. 19 The remarks and occurrences that followed will be later mentioned. 29 In the "ruckus" two chairs on the right or north side of the counsel table were turned over. It is of course' not important but no witness mentioned how or when this occurred. 21 Sheriff Eckols is the "man in a white shirt" mentioned by Wilson. JOHN L. CAMP 107 b. Events immediately following the assault As previously stated, some colloquy occurred and several statements by vari- ous persons were made immediately after the assault and prior to the resumption of the record at line 42, none of which were taken by the reporter. Some of these remarks or statements have already been mentioned. It is well agreed that after Tell had pulled Camp away from, Wilson and Camp had gone to a chair on the left side of the counsel table Wilson, standing on the right side of the counsel table, was the first to say anything. It was at this point Wilson, look- ing toward, and directing the remark to, Camp, said : "That was a silly thing to do" (Tr. 70). Camp made no reply. It is difficult to determine the exact se- quence of events from that point. Apparently Wilson continued his remarks, without interruption, with the observation that he had practiced law for 15 years, "including practice before the Magistrate Courts of New York City, where some pretty rough things sometimes occur," but "in all" of his "experience" he had "never witnessed a thing like that" (Tr. 303, 232, 176, 177). Here, accord- ing to the sheriff, he asked the Trial Examiner "what had been going on" and the Trial Examiner replied : "They had a little fight." Thereupon the sheriff asked the Trial Examiner "what caused the fray" and the Trial Examiner said : "That both of them were out of line, and that Mr. Wilson was out of line in the remarks he had addressed to Mr. Camp" (Tr. 444, 304). Somewhere along here the Trial Examiner also made the remark to Wilson, set out in the resume of the Trial Examiner's testimony, that he did not think Wilson was "entirely in the clear." Tell then apologized to both the Trial Examiner and Wilson for what had happened at the conclusion of which he (Tell) turned to Camp and said: "I think you should apologize to the Trial Examiner and Mr. Wilson for this unfortunate incident" (Tr. 304, 233, 234, 279, 280). At this suggestion of Tell, Camp arose and proffered an apology. He said he "was sorry it had happened" " and then directly addressing the Trial Examiner tendered profuse apologies, and added, that he "had practiced law in Texas for over 20 years" and that he "had never done anything like that before, but that Mr. Wilson's abusing and insult- ing these witnesses who were" his "personal friends had caused" him "to lose control of" himself (Tr. 546). About Camp's apology, the Trial Examiner said that Camp "made an apology to me, sort of a general apology, but I don't re- member that he made any direct apology to Mr. Wilson. He (Camp) said he was sorry he lost his temper, and that he had never been involved in any such inci- dent before" (Tr. 658). Tell walked over to Wilson and examined his left eye and noting that it "was rapidly swelling shut" (Tr. 304) suggested that Wilson "go to a doctor at once," that a recess be taken, and that after Wilson had seen a doctor they could "decide what should be done" (Tr. 304). The Trial Examiner inquired of Davidson if he knew where a doctor's office was and Davidson said he did. The Trial Examiner then asked Davidson to accompany Wilson to see a doctor. It was at this point before departing for the doctor's office that Wil- son's request shown at line 42 was made followed by the off-the-record discus- sion (line 47), apparently concerning the request, and the recess shown at lines 48 and 49 was taken. Wilson, accompanied by Davidson and Buchanan, went to a doctor's office in Buchanan's car and was there "possibly twenty minutes" (Tr. 241, 242). As they were returning to the courthouse they met Tell and 22Tell said that when Camp arose he first stood "facing in the general direction where Mr. Wilson was standing and sort of half way facing the Examiner , and said 'I am sorry this occurred'" and that he (Camp) then turned and faced the Trial Examiner and made "profuse" apologies to the Trial Examiner (Tr. 304). Camp said that when he arose to his feet "I looked in Mr. Wilson's direction and told him I was sorry it happened" and that then he apologized to the Trial Examiner (Tr. 546). 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sears coming from the courthouse in a car . Tell signaled for the Buchanan ,car to stop and came to that car and sat in the back seat with Wilson. Tell asked Wilson about the injury to his eye, told him of the discussion he (Tell) had had in the meantime with the Trial Examiner concerning an adjournment of the case in view of the information the Trial Examiner had given Tell that he intended to exclude Camp from further participation in the case , and again apologized to Wilson "on behalf of Camp, the Company , and myself" for what had happened . Wilson said : "I accept your apology Mr . Tell, and I want you to know I have no personal rancor against you . . . you have conducted yourself in an orderly manner" ( Tr. 307 ). In this conversation Wilson expressed a desire for a continuance to enable him to return immediately to Fort Worth , in which Tell concurred. Another incident occurring shortly after the recess was taken is referred to by the General Counsel in his argument . Shortly after the departure of Wilson for the doctor's office, Tell after some discussion with the Trial Examiner left the courtroom and went downstairs , where, on the outside of the courthouse, he found Camp alone. Tell said that at that time Camp "was still very visibly disturbed . . we talked for a minute or two I told him to take a walk across the hills and cool off" (Tr . 306). About this Camp says that when Tell found him on this occasion he was "still emotionally disturbed" and by that he means that he "felt like a fool I was also chagrined about the matter, and I was still somewhat peeved at Mr. Wilson , but I wasn't as angry with him as I was at myself" ( Tr. 547). The hearing reconvened at 1: 30 p. in. The Trial Examiner entered an order excluding Camp from further participation in the hearing . Wilson sought to introduce evidence concerning the assault as showing a violation by Camp of Section 12 of the National Labor Relations Act and as part of the record in the Ohio Oil Company case. The Trial Examiner did not consider such evidence as being an appropriate part of the record in the unfair labor practice proceeding against the Company and refused the offer Whereupon , the hearing was adjourned at 2: 15 p m . until Monday , October 31 , 1949. Later, in vacation, a postponement was made to November 29, 1949. c. The injuries As a result of the assault Wilson suffered certain injuries of a temporary nature. He stated that when he went to the doctor's office his left eye was swollen completely closed, that a swelling later developed "on my left jaw," and that he had some bruises on his back which finally turned "black and blue" (Tr. 77). On the next clay after the assault Wilson 's wife took photographs, which were placed in evidence, showing the appearance of his injured eye at that time. III. CONCLUSIONS AND FINDINGS ABOUT THE ASSAULT I do not accept as correct the version of the General Counsel's witnesses, Davidson , Mrs. Davidson, and Mrs. Buchanan , that Camp suddenly arose and rushed the 5 or 6 feet , or 3 or 4 steps ( Tr. 638) to and around the left end of the counsel table , violently jerked Tell out of his way in passing, and without hesi- tating or pausing even for an instant at the judge 's bench, or slackening his advance, rushed upon and assaulted Wilson. Rather, it is my belief and finding, based upon my observation of the witnesses and a careful analysis of all the evidence in the case bearing upon the assault and the circumstances immediately attending it that: ( 1) Camp left his chair immediately or very shortly after Wilson said, at line 23, "If nothing else credi- JOHN L. CAMP 109 bility," or at about that point, as Camp says he did; (2) Camp did step hurriedly the few feet to the judge's bench, being aroused by the reference to credibility about which so much had already been said in, at times, sharp and accusatory language during the testimony; to that point, of the Company's two witnesses, Gwilliam and Bascom; (3) when he arrived at the left corner of the counsel table Camp may well have pulled Tell slightly to one side, if that was necessary in order to pass Tell who was standing at the very left corner of the judge's bench and thus may have been partially blocking the entrance to the passageway or space between the end of the counsel table and the judge's bench, but I do not believe or find that Camp violently jerked, pulled, or pushed Tell aside; (4) at some point while Wilson was making the statement covered by lines 29 to 39 on page 761, supra, Camp moved in between Tell and Wilson and stood squarely within the space between the end of the counsel table and the judge's bench (a space 1 foot, 3% inches in width) facing the Trial Examiner, as is indicated by the testimony of Mrs. Ackin, the reporter, called as a witness by the General Counsel, Camp, Tell, Phillips, and Trial Examiner Kent, and even by the affidavit of General Counsel's witness, Mrs Davidson, taken on the afternoon of the day of the assault; (5) Camp was standing in that position, between Tell and Wilson, when Wilson completed his statement ending with line 39, and during the closing part of the statement when Wilson said "because the rest of the story," -1 am satisfied, I know, is not true from what I have heard from my witnesses here" ; (6) Camp remained in that same position at the judge's bench, between Tell and Wilson, as he (Camp)-made the objection, shown in part at line'40, commencing: "We object to this continually-" and ending in clashes, although, according to the testimony of the reporter, as he made the objection lie turned slightly toward Wilson ; and (7) the remaining portion of the objection, which does not appear in the record, being indicated there by dashes, Was in substance, truing to impeach the witnesses for the Respondent (or impeach the or this witness) on imma- terial matters and the repeated statements that the witnesses for Respondent are not telling the truth, as shown by the testimony of Tell and Camp. There is no question that Camp said something in addition, to that appearing at line 40 ending in dashes, as is verified by the testimony of Mrs Ackin, the reporter, Camp, Tell, and Trial Examiner Kent, and I find that something addi- tional to be in substance as stated. Did Wilson then make a rejoinder to Camp's objection? The Trial Examiner says he did, so quickly that both Camp as he completed his objection and Wilson as he commenced his rejoinder seemed to be talking at almost the same time Camp and Tell 2' both say Wilson made an instantaneous re- joinder to Camp's objection. If, with nothing further being said, Camp was angered to the point of assault by Wilson's accusation against Bascom (at lines 36 to 39) with which Wilson closed his statement, it, seems unlikely that Camp would have paused to first interpose the objection of record before moving into action. I am constrained .to find that when or as Camp completed his objection Wilson in the same instant made a rejoinder. In ascertaining the wording of what Wilson then said recourse must be made principally to the testimony of Tell and Camp. The Trial Examiner undertook to give only the 23 The reference being to a portion of the testimony of Bascom who was then under cross- examination "4I have throughout accorded much weight to Tell's testimony I consider him a most reliable and credible witness I observed, and was impressed by, his demeanor on the witness stand , and the nature of his testimony In my opinion he was not given to either exaggerating or minimizing His testimony was not colored , either consciously or un- consciously , by partisanship He is a seasoned lawyer with considerable trial experience, and I believe his testimony was objective and substantially accurate 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD import of Wilson's retort. Tell and Camp agree substantially as to the lan- guage and, crediting their testimony, I find that Wilson, at that point, speaking at the very instant Camp completed his objection "to this continually trying to impeach the witnesses for the Respondent (or impeach the witness) on im- material issues and the repeated statements that the witnesses for Respondent are not telling the truth," said in substance : "They 2' have been lying all the way through." Therewith I find that Camp, in common parlance, lost his temper, and, in a sudden flash of anger, whirled Wilson about, shoved him back, and hit him. Camp's own testimony fills in the details of the actual assault. There is little, if any, conflict in the testimony as to subsequent events. In finding that Wilson used substantially the language attributed to him by Tell and Camp, or of that import, I have recalled that what he is alleged to have said represented in effect what he (Wilson) said was at the time his belief and conviction about the testimony of Gwilliam and Bascom. Wilson after saying (Tr. 96) that at the time of the assault the Company had put two witnesses on the stand, Gwilliam and Bascom, who was under cross- examination at the time, stated, "I was definitely satisfied that each of them did not tell the truth . . . it was my opinion they were not telling the truth," and that (Tr. 96, 97) he may "very well have" taken the position at some point in the case that "they were deliberately lying." Wilson proceeded on the assumption that the Company's witnesses were lying (Tr. 103, 104, 105, 106). As noted, the Trial Examiner distinctly and positively recalls that as Camp completed his objection, Wilson made a rejoinder directed to Camp although at this time he is unable to give the precise wording. However, at the time, and in reply to the sheriff's inquiry, the Trial Examiner told the sheriff that "both of them (Camp and Wilson) were out of line and that Mr. Wilson was out of line on remarks he had addressed to Mr. Camp." The Trial Examiner also "interposed" during a statement Wilson was making immediately after the assault to say to Wilson, "I don't think you are entirely in the clear." Further at footnote 3 of his Intermediate Report the Trial Examiner says he "excluded Mr. Camp . . . from further. participation in the hearing because he struck the General Counsel's representative during a heated argument, be- tween counsel, held before the Trial Examiner at the bench." No witness said that Camp kicked Wilson while he (Wilson) was down. Davidson after having fully and in detail related his version of the assault and how he and Tell pulled Camp away from Wilson without having said anything about Camp kicking or attempting to kick Wilson (Tr. 228, 229, 230, 231) was asked by the General Counsel: "What if anything did you observe Mr. Camp doing while you and Mr. Tell were endeavoring to get him away from Mr. Wilson?" Davidson replied: "Well, while we were separating them he (Camp) was still trying to hit him and was kicking. I don't think he kicked Mr. Wilson but he was kicking." Mrs. Davidson said that as Camp was being pulled away from Wilson,she saw Camp's "feet kicking" in the direction of Wilson. It is a bit difficult to comprehend how Mrs. Davidson from her posi- tion in the audience back of the bar rail observed so many of the details at the various stages of the hearing • as she believes now in retrospect she did, and in this instance the bar rail, the counsel table, and her husband, a large man, intervened between her and the participants. Mrs. Buchanan, who viewed the assault from a like position in the audience made no mention in her testi- mony of any kicking. The other witnesses to the assault did not observe the alleged attempts by Camp to kick Wilson. In my opinion the proof in that $5 Gwilliam and Bascom , the only witnesses so far to take the stand for Respondent Company. JOHN L. CAMP 111 respect is not of the quality and preponderance to warrant a finding that Camp attempted to kick Wilson. The General Counsel suggests , but I find no chain of circumstances, or any credible evidence, or evidence of a substantial nature to support the suggestion, that Camp had formed and was harboring a deliberate plan to assault Wilson and that he acted deliberately and pursuant to such design. If the testimony of Davidson , Mrs. Davidson , and Mrs. Buchanan concerning the assault, that Camp rushed from his chair and without any slackening at any point, or any pause even at the judge's bench, assaulted Wilson were accepted it might tend to lend support to the suggestion . But the evidence , as I view it, is overwhelm- ingly to the contrary. In the course of his testimony Wilson expressed the opinion ( Tr. 171, 172) that, in the light of what subsequently occurred and viewed in retrospect, that when Camp requested a recess, line 8, "Mr. Camp at that moment had in his mind the idea of attacking me then and there, possibly hoping that he could have the recess and do it outside the courtroom ." To me this inference hardly seems warranted or plausible . If Camp was harboring a design to assault Wilson with the calm calculation of executing same outside the courtroom during a recess, he undoubtedly could have continued to restrain himself and await the recess the Trial Examiner had said would be taken after the arguments on Tell's objection had been heard . The real facts indicate that Camp 's act in assaulting Wilson was the result of a flash of temper occasioned by Wilson's retort to Camp's objection. The General Counsel attaches significance of some kind to Tell 's suggestion to Camp, made probably 30 minutes or more after the assault , that he (Camp) take a walk and cool off. In my opinion Camp 's mental state at that time was, as he describes it, that of self-condemnation and a sense of mortification, and I do not attach any retroactive implication to the incident or perceive how it tends to indicate a predetermined evil intent on Camp's part to assault Wilson. I have reviewed in detail many of the incidents which occurred during the 6 days of the hearing at Rankin, and have endeavored to give the background and setting. I have made, findings concerning many of these matters which I deem it unnecessary to summarize and repeat here. It suffices to say that even before the hearing commenced and as it progressed considerable feeling and resent ment, as I have noted , developed between counsel, particularly between Wilson and Camp. By the sixth day there was undoubtedly a strained and tense atmos- phere and tempers were edgy. It is my conclusion, therefore , based upon the findings I have made, that Camp did not act upon any predetermined design, but that the assault occurred , as Camp claims , in a momentary loss of temper. No justification is, or can be , asserted. Instead Camp has invoked in explana- tion and mitigation of the assault merely what he deems the accumulated circumstances of provocation which had built up and were climaxed by another, as he views it, unwarranted and improper accusation against the integrity of his friends, Gwilliam and Bascom. Wherefore, pursuant to the Board 's aforesaid order of February 17, 1950, I submit this review of the evidence , with my findings of fact. The transcript of the evidence , particularly that portion covering the first, second, and third days of the hearing at Fort Worth, Texas , is replete with errors. While perhaps in no instance vitally material , nonetheless to reflect accuracy of meaning it is necessary that some , if not most, of these errors be corrected. Therefore, with the acquiescence of counsel , I order and direct that the transcript be. and same hereby is , corrected as shown by, and in accordance with, Appendix A, hereto attached. 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix A In re John L. Camp The transcript in this matter is corrected as follows : Volume 1 Page Line 3 3 Strike "presented" and substitute "held." 3 24 Strike "of" and substitute "on." ' 4 14 Strike "as to" and insert in lieu thereof "having an interest in."'• 4 16 Strike. "we" and "with" and put a period after "proceed " 5 14 Strike "in" before the word briefs and substitute "and:" 10 17 Insert "at" before the word "one." 10 18 Strike the first two words in the line "at the" and substitute "that a" and in the same line strike "was" and substitute "be had " 11 12 Strike the second word in the line "in" and substitute "within." 11 13 Put quotation marks before "ruling," the last word in that line. 11 15 Put quotation marks after the word "reserved." 11 17 Strike "of" and substitute "is that." 21 25 Immediately following "involved " strike "two" and substitute "twenty to thirty." 22 3 Immediately following "case," strike "against the defendant" and substitute "for two defendants " 22 4 Immediately following "case" strike "or" and substitute "out of." 23 13 Insert "his" after the word "what." 24 20 Strike "trouble" and substitute "treble." 24 22 Strike "of" and substitute "in", and in the same line insert "New- Jersey" between "Pennsylvania" and "Maryland." 24 23 Substitute "were" for "was." 26 11 Strike the last two words , "or on," and substitute "there were." 26 20 Strike "1949" and substitute "1948 " - 29 4, 5 Substitute "Sheeley" for "Shealley." 30 3 Strike "certainty" and substitute "certainly." 30 5 Substitute "were" for "was." -30 12 Substitute "affirmative" for "enumerative." 32 5 Substitute "usual" for "unusual." 34 23 Strike "his" and insert in lieu thereof "that he is " 34 24 Insert "a" before the word "part," and in the same line strike the period and the word "it" following the period and insert at that point the words "and that it." 34 25 Strike "the" and substitute "this." 35 12 Strike "did" and substitute "do." 35 21 Strike "seek" and substitute "select." 37 21 Insert "not" between the words "is" and "interested." 37 22 Strike the comma and the word "and" after the word "fully." 37 23 Strike "for," the first word in the line , and substitute "before " 38 6 Insert "or" after "on," • the seventh word in the line, and in the same line strike the word "throwing" and substitute "throw." 38 7 Strike "this" and substitute "the." 41 6 Strike "upon." 42 11 Strike "say" and substitute "save." 46 13 Strike "conducted the cross -examination" and the comma after. "cross-examination." JOHN L. CAMP 1 13 Page Line 47 8 Strike "Monday" and substitute "Wednesday." 47 19 - Strike "24th" and substitute "25th " 50 12 Substitute "where" in lieu of `when " 55 3 Strike "you" and substitute "he." ^55 4 Strike "two." 55 22 Strike "commit" and substitute "permit." 59 14 Strike "Alfred" and substitute "Al Ford." 60 25 Strike "where" and substitute "why." .62 25 Strike "incidences " and substitute "incidents." 68 1 Strike "far" and substitute "wide." 74 13 Insert before the word "who," the first word in the line, "concern- ing those" and in the same line strike "have," the second word in the line, and substitute "had," and strike "have," the third word from the end of the line , and substitute "had." 78 25 Strike "objection" and substitute "objectionable." 81 5 Strike "he" and substitute "Mr. Camp " 88 18 Strike "ask" and substitute "take." 88 19 Strike, "and" and substitute "an." 92 7 Insert "they will" between the words "and" and "be." Volume 2 97 10 Strike "potion" and substitute "portion." 100 23 Strike "31st" and substitute "13th." 100 24 Put a semicolon after "then." 102 23 Strike "fired" and substitute "told." 105 20 Strike "so charged" and substitute "in charge." 109 22 Insert "and" after the word "inconsistent." 120 12 Strike "that" and substitute "what " 127 9 Strike " the" before "judges" and insert in lieu thereof "that trial" so that part of line 9 after the comma will read "I didn't recall that trial judges usually." 128 19 Strike "1930" and substitute "1935." - 129 13 Strike "Mr " and substitute "Judge." 135 4 Strike "and" and substitute "in " 135 13 Insert "Mr. lthetts" after the word "permit." 135 14 Substitute "incidents" for "incidences." 135 16 Strike "don't," the first word in the line, and strike the words "the %vitness " following the word "think," so that the first part of said line will read "think the witness." 135 17 Strike "I think" the first two voids in the line. 137 10 Strike "league" and substitute "legal " 137 13 Strike "to" and substitute "an," and in the same line strike "argue" and substitute "argument on " 139 4 Put a period after "situation," and capitalize "s" in the word "so." 139 6 Put a comma after "summation." 139 9 Strike the word "liars" and substitute "lies." 140 8 Strike "facts," the first word in the line. 141 6 Put a period after the word "situation" and capitalize the "p- in the word "particularly." 146 12 Strike the word "discharge " and substitute "discourage." 147 4 Strike "not" and substitute "that." 152 24 Strike "immediate" and substitute "intermediate." 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Page Line 157 24 Strike the words "any, the showing of" following the first word in the line, and strike the words " doesn't make" so that said line, as corrected, will read : "shows any materiality in." 158 9 Strike "of," the last word in the line, and substitute "on." 158 10 After "Mr. Camp" insert "is concerned." 158 13 Strike "produce" and substitute propose." 158 14 Strike "to," change the word "preliminaries" to "preliminary," and insert the word "to" after it. 159 13 Strike "certainly," the first word in the line. 161 8 Strike the words -"litigation of" and insert in lieu thereof "miti- gation or" and in the same line strike the words "acts" and sub- stitute "action," so that said line as corrected will read : "afford any mitigation or extenuation of any action which." 161 9 Strike "has" and substitute "is" and in same line insert "have" after "to" and change the "take" to "taken," so that that part of the line will read : "Camp is alleged to have taken." 161 14 Strike "what" and substitute "so that." 163 12 Strike the last three words in the line and substitute "don't know how even if Wilson." 163 14 Strike "how," the first word in the line. 164 7 Strike "in" and substitute "or." 172 15 Strike "knees" and substitute "chest." 172 16 Strike "table" and substitute "bench." 172 19 Strike "table" and substitute "bench." 176 11 Strike "there" and substitute "then." 183 2 Strike the words "on it." 186 2 Strike "didn't" and substitute "did." 187 6 Strike "well" and the comma after "well" and substitute " we will." 200 2 Strike "form" and substitute "forum." 200 7 Strike "use" and substitute "see." 200 19 Strike "committed" and substitute "submitted." 208 13 Strike "he felt." 208 15 Strike "asking" and "recite" and substitute "asked" and "cite." 219 3 Strike "by." Volume 8 239 14 Strike the entire line. 240 24 Strike "restrained" and substitute "constrained." 241 7 Strike "from his eye." 253 7 Strike "a hold" and substitute "hold." 293 5 Strike "what" and substitute "that." 295 7 Strike "will be" and substitute "is." 300 10 Strike "was" and substitute "as." 317 16 Strike the words "I will permit the witness to." 317 17 Strike the word "testify." 332 7 Strike "and." 332 8 Insert the word "that" after "understand" and the word "was" after "Tell," so that as corrected that part of the line will read "I didn't understand that Mr. Tell was questioning it." JOHN L. CAMP Volume 4 115 Page Line 365 20 Strike "trying" and substitute "inclined." 366 9 Put a comma after "constitute," and strike "the matters." 366 10 Strike "matters" and substitute "matter." 366 11 Strike "a" and substitute "as," strike "one" the last word in line, and put a period after "provocative." 371 3 Insert "not" after "has." 371 16 Strike "court" and substitute "the judge." 397 15 Strike "that" and substitute "my." 402 2 Strike "the" and insert the word "testimony" after the word "opinion." 403 24 Strike "that," the fourth word in the line. 413 23 Strike "for" and insert "by." 430 22 Strike "to" and substitute "for." 431 23 After the word "courts" insert "and their hearings." 431 24 Insert "a" after the word "in." Volume 5 443 13 Strike "up to" and substitute "at." 451 16 Put a period after the "to," the last word in the line. 451 17 Strike "at least." 465 1 Strike "Williams" and substitute "Gwilliam." 465 6 Strike "Williams" and substitute "Gwilliam." 465 13 Strike "Williams" and substitute "Gwilliam." 465 15 Strike "Williams" and substitute "Gwilliam." 465 17 Strike "Williams" and substitute "Gwilliam." 465 22 Strike "Williams" and substitute "Gwilliam." 471 11 Strike "Williams" and substitute "Gwilliam." 472 5 Strike "Williams" and substitute "Gwilliam." 472 8 Strike "Williams" and substitute "Gwilliam." 490 12 Strike "Judge" and substitute "Trial Examiner." 495 6 Strike "or." Volume 6 527 8 Strike "in" and substitute "with." 529 8 Strike ^ opposed" and substitute "disposed" and in same line strike "objecting" and substitute "object." 529 19 Strike "formal" and substitute "form of." 532 12 Strike "we." 549 1 Strike "in" and substitute "and." 552 8 Strike "for" and substitute "or." 552 20 Strike "I have-." 553 6 Insert "the" after the word "or." 581 22 Strike "that" and substitute "of." 583 3 Strike "hear" and substitute "have." 583 16 Strike "to" and substitute "in." 583 17 Insert "a" after "of," the last word in the line. 583 18 Strike "Courts" and substitute "court." 583 22 Insert "to" after "has," and strike the word "exercised" and sub- stitute "exercise." 583 23 Strike "the," the first word in the line. 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Page Line 587 10 Strike "wanted to" and insert "had" and in the same line strike "interview" and substitute "interviewed." 593 16 Strike "sixth" and substitute "six." 593 18 Strike "not." 603 25 Strike "beside" and substitute "The side." 604 2 Strike "on." 608 1 Strike "467" and substitute "648." 618 19 Strike "parents of the" and substitute "parent." 637 24 Strike "in" and substitute "at the." 644 23 Strike "substance" and substitute "substantive" and in the same line strike the period after "case" and substitute a comma. 644 25 Strike the period after "Respondent" and substitute a comma. 648 13 Strike "has been entered" and substitute "is pending." 650 11 Insert "going" after "was." 651 13 Strike "your" and substitute "the." 651 20 Strike "and." Volume 7 654 12 Strike "the," the first word in the line. 654 14 Strike "has" and substitute "had." 655 13 Strike "where," the first word in the line, and substitute "that": in the same line strike "a" and substitute "such," and strike "testified" and substitute "testify." 662 21 Insert "which" after the word "made." 664 8 Strike "bar" and substitute "box." ARCADE MANUFACTURING DIvIsioN OF ROCKWELL MANUFACTURING COMPANY and DISTRICT No. 101, INTERNATIONAL ASSOCIATION OF MACHINISTS, PETITIONER. Case No. 13-RC-1897. September 10, 1951 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Herman J. DeKoven, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Herzog and Members Houston and Reynolds]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain employees of the Employer. 96 NLRB No. 8.