Republic Steel Corp.

In the Matter Of REPUBLIC STEEL CORPORATION and STEEL WORKERS ORGANIZING COMMITTEE Case' No. C-184.-Decided October 18, 1938 Iron and Steel Industry-Strike: provoked by employer's unfair labor prac- tices and refusal to sign contract with union ; intervention by police-Employee Status : during strike-Interference, Restraint, and Coercion : statements to em- ployees attempting to vilify and discredit union, union leaders, purposes, and policies ; espionage, surveillance of union meetings , shadowing, and beating of union organizers and active members of the union by company police ; threats to discharge employees if they joined union , and to close plants before recognizing union ; announced refusal to sign any contract with union ; coercing civil author- ities to swear in company employees as special police officers and to use violence against strikers ; coercing business and other interests to further antiunion activities of employer through support to Law and Order League and Back-to- Work movements ; coercing employees to sign petitions opposing outside unions ; incitement of violence and hysteria to terrorize union adherents ; donation of tear and vomiting gas to police department ; activities in connection with attack upon , peaceful assembly of strikers-Company-Dominated Unions: initiation and sponsorship ; domination of and interference with formation and administration ; financial and other support ; coercion to join ; formation and use of to oppose outside union ; disestablished , as agencies for collective bargaining-Discrimi- nation: lay-offs; discharges ; refusal to reinstate ; charges of, not sustained as to one person-Lock-Outs-Reinstatement Ordered: employees laid off, dis- charged, and refused reinstatement prior to or during strike ; strikers, upon application ; grounds for refusal of : felony, conviction of, as; misdemeanor, con- viction of, as; violence-Back Pay: awarded , to employees laid off, discharged, refused reinstatement, and locked out; ordered, to strikers who are not rein- stated or placed on preferential list within 5 days after application ; monies received by employees for work performed upon Federal, State, county, munici- pal, or other work -relief projects to be deducted and paid over to agency which supplied" funds for'' said projects. Mr. Mark Luther, Mr. Lawrence Hunt, Mr. Oscar Grossman, and Mr. Joseph A. Hoskins, for the Board. Mr. Luther Day, Mr. Thomas F. Veach, Mr. Arno Erdrich of Day, Young, and Veach, Cleveland, Ohio; Mr. J. G. Ketterer, Canton, Ohio; Mr. H. C. Pontius, of Lynch, Day, Pontius and Lynch, Canton, Ohio; Judge Charles F. Smith, Mr. David E. Jones, Mr. Harry S. Manchester, Mr. R. D. Huxley, and Mr. George Renner, of Harring- ton, Huxley, and Smith, Youngstown, Ohio; and Mr. Thomas Patton, Cleveland, Ohio, for the Company. Mr. Lee Pressman, for the S. W. O. C. Mr. Allan R. Rosenberg, and Mr. Robert Burstein, of counsel to the Board. 9 N. L. R. B., No. 33. 219 220 NATIONAL LABOR RELATIONS BOARD DECISION AND ORDER STATEMENT OF THE CASE Upon charges and supplementary charges duly filed by Steel Work- ers Organizing Committee, herein called the S. W. O. C., the National Labor Relations Board, herein- called the Board, issued its complaint, dated July 15, 1937, against Republic Steel Corporation, Cleveland, Ohio, herein called the respondent, alleging that the respondent had: engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. In respect,to unfair labor practices the complaint in substance al- leged (1) that during August 1936 and the period from February to May 1937 the respondent discharged and refused to reinstate certain named individuals employed at its plants at Youngstown, Canton, Massillon, Warren, and Cleveland, Ohio, for the reason that they joined and assisted the S. W. O. C. and engaged in concerted activ- ities for the purpose of collective bargaining and other mutual' aid and protection; (2) that on or about May 5, 1937, the respondent. locked out and refused to reinstate almost all of its employees at its tin-plate mill in the Canton plant, and that on or about May 12, the respondent locked out and failed to reinstate a considerable number of its employees at its Massillon plant, for the reason that they joined and assisted the S. W. O. C. and engaged in other concerted activities, for the. purpose of collective bargaining and other mutual aid and protection; (3) that on or about May 26, 1937, by-reason of the afore-- said acts of the respondent and its refusal to enter into a written agreement with the S. W. O. C. the employees of the respondent at its various-plants went out on strike, which strike continued to the date of the issuance of the complaint; (4) that the respondent compelled a, considerable number of employees at its Warren plant to remain at their jobs within the plant, and threatened to discharge such em-_ ployees if they left the plant and joined the employees on strike and further refused to reinstate certain named employees at its Warren plant, and sought to compel others to return as new employees with the loss of former positions and seniority rights, for the reason that they left the plant during the progress of the strike and joined and assisted the S. W. O. C.; (5) that between June 23 and July 2, 1937, the respondent discharged and refused to reinstate to their : former positions certain named individuals employed at its Youngstown plant for the reason that they joined and assisted the S. W. O. C. DECISIONS AND ORDERS 221, and -en ;aged in concerted. activities for- the purposes of- collective bargaining and other mutual aid and protection, (6) that the respon-, dent dominated and interfered with the formation and administration of certain named labor organizations at its Youngstown, Warren, Canton, Massillon, and Cleveland plants; (7) that the respondent threatened its employees at its Youngstown, Warren, Niles, Canton, Massillon, and Cleveland plants with discharge if they joined or assisted the S. W. O. C., and by its officers and agents followed and brutally attacked oranizers of the S. W. O. C. at its plants -in Cleve-- :n land, Youngstown, and Warren; (8) that the respondent immediately prior to and after the commencement of the strike increased the num- ber of its police force in its various plants and used such police for the purpose of interfering with the right of its employees peacefully to picket the plants and for the purpose of intimidating its striking employees ; (9) that the respondent, in collusion with the aforesaid labor organizations dominated and controlled by the respondent, be- fore and after the commencement of the strike called upon its em- ployees at their homes and elsewhere in Youngstown, Warren, Canton, Massillon, and Cleveland, and intimidated and coerced them into signing so-called back-to-work petitions and other petitions, upon threat of the loss of their jobs; (10) that the respondent maintained extensive arsenals at its plants in Youngstown, Warren, Niles, Canton, and Cleveland for the purpose of interfering with, restrain- ing and coercing its employees in the exercise of their rights to self- organization, and interfered with the right of its employees peace- fully to picket its plants by shooting at them and throwing bolts and other dangerous missiles at them; and (11) that by these and other acts the respondent interfered with, restrained and coerced, and is in- terfering with, restraining and coercing, its employees in the exercise of the rights guaranteed in Section 7 of the Act. - - Copies of the complaint and notice of hearing to be held on July 21, 1937, at Washington, D. C., were duly served upon the respondent and the S. W. O. C. Pursuant to this notice, on July 21, 22, 23, 1937, a hearing was held in Washington, D. C., before the Board. At the outset of the hearing, the respondent moved to adjourn and transfer the hearing to Cleveland, Ohio. The Board denied this motion, but granted the respondent until August 4, 1937, to file its answer to the complaint. Thereafter, without waiving any of its objections to jurisdiction, the respondent participated in the hearing. In its answer, dated August 2, 1937, the respondent denied the allegations of unfair labor practices alleged in the complaint, denied that the employees named in the complaint were engaged in interstate commerce, admitted that its employees went out on strike, but denied. that they went out on strike for the reasons alleged in the complaint, and alleged that the strike was called by the S. W. O. C., acting pur- 222 NATIONAL LABOR RELATIONS BOARD suant to the direction of Committee for Industrial Organization, without any cause or justification and solely for the selfish advantage of those committees in an attempt to gain control of the employees of the respondent and generally of all steel-company employees. The answer further' alleged, inter alia, that at the time the strike was called there was no labor dispute between the respondent and its employees, and no difference' as to wages, hours, and working conditions; that a large percentage of the respondent's employees did not go on strike but remained at work and that others returned to work promptly after the Ohio National Guard had been called out to protect them while going to and from the respondent's plants, against assaults, violence, coercion and intimidation on the part of the strikers and of the S. W. O. C. and its agents and representatives; that none of the alleged" unfair labor practices complained of interfered with the respondent's operations, caused a labor dispute or affected or tended to affect commerce; that the Board has no jurisdiction to hear and determine assault and battery and felonious assault cases; and that the complaint was so indefinite as not to inform the respondent of the issues to be met, and therefore further proceeding thereunder was a denial to the respondent of due process of law. Thereafter, pursuant to notice, the hearing was continued before John T. Lindsay, the Trial Examiner duly designated by the Board. Hearings were held from August 9 to August 12 in Canton, -Ohio, from August 20 to August 24 in Youngstown, Ohio, from August 27 to August 30 in Cleveland, Ohio, from September 1 to September 16 in Canton, Ohio, from September 17 to September 21 in Youngstown, Ohio, and from September 23 to September 27,' in Cleveland, Ohio. The Board, the respondent, and the S. W. O. C. were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to produce evi- dence bearing upon the issues was afforded to all parties. During the hearing, the Trial Examiner granted a motion by coun- sel for the Board to amend the complaint by striking therefrom the names of certain employees alleged to have been discriminatorily discharged or refused reinstatement. At the close of the Board's case, the respondent moved to dismiss the complaint on the grounds that the alleged unfair labor practices did not affect interstate com- merce and were not established by the evidence. The Trial Examiner denied the motion. At the close of the respondent's case, the Trial Examiner granted a motion by the attorney for the Board that the complaint be conformed to the proof adduced during the hearing. During the course of the hearing, the Trial Examiner made nu- merous rulings on motions and objections to the admission of evi- dence. The Board has reviewed the rulings of the Trial Examiner DECISIONS AND ORDERS 223 and finds that no prejudicial errors were committed. Except as noted below the rulings are hereby affirmed.' On January 21, 1938, the respondent filed a motion with the Board for leave to introduce additional evidence, or in the alternative, to submit and have incorporated in the record as a part thereof, an offer-to prove with relation to the evidence so excluded. On March 28, 1938, pursuant' to an appropriate order of the Board, the re- spondent submitted its offer to prove. On April 8, 1938, the Board issued findings of fact and an Order in the case. The Order directed the respondent to cease and desist from (a) dominating and interfering with any labor organization of its employees, (b) discouraging membership in the Amalgamated Association of Iron, Steel, and Tin Workers of North America or the S. W. O. C. or any other labor organization of its employees by discharging and refusing to reinstate employees, or otherwise dis- criminating in regard to hire or tenure of employment or any form or condition,.of employment or by threat of such discrimination, and (c) in any other manner interfering with, restraining and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. The Order also required the respondent to take certain affirma- tive action, inter alia, to offer, upon application, to those employees at its plants in the Canton, Massillon, Youngstown, Warren and Cleveland districts, who went on strike on May 25, 1937, and there- after, and who had not been fully reinstated to their former positions (with specified exceptions) immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights or privileges; or, in the event sufficient positions were not available, to place such employees upon a pref- erential list, to be offered employment as work became available, in accordance with principles set out in a part of the findings entitled "The remedy." The Order also directed the respondent to make whole'.all the aforesaid employees for any losses suffered by reason of any refusal to reinstate them upon application or to place them upon a preferential list, by payment to each of them of a sum. of money equal to that which each of them would normally have earned as wages during the period from the date of any such refusal of their application to the' date of the offer of reinstatement or placement upon a preferential list, less the amount, if any, which each, respec- tively, earned during said period. On April 18, 1938, the respondent filed in the United States Circuit Court of Appeals for the Third Circuit its petition to review and set aside the Order of the Board. 1TherTrial Examiner to,g under advisement , without ruling on their admissibility in evidences, Respondent Exhibit Nos 8. 15, 16 , 17 and 18. These exhibits will be admitted. 224 NATIONAL LABOR RELATIONS BOARD On April 30, 1938, in open court, counsel for the Board notified the Circuit Court that the Board was considering vacating its Order and on May 3, 1938, the Board notified the respondent that it had definitely decided to do so on the following day. Before the Board could vacate its Order pursuant to this notice, the Circuit Court on May 3, 1938, issued a rule directing the Board to show cause on May 13, 1938, why it should not be required to certify and file in the Cir- cuit Court a transcript of the 'record in the proceedings before the Board; at the same time the Circuit Court issued an order restrain- ing the Board from taking any action in the case until the return day of the rule. , On May 6, 1938, the Board filed with the clerk of the Circuit Court its motion, returnable May 9, 1938, for the vacation of the restraining order. The Circuit Court took the motion under advisement. On May 13, 1938, the Circuit Court made absolute the rule of May 3, 1938, requiring the Board to file a certified transcript of the record, and enjoined the Board from taking any further steps or proceedings in the case until the record was filed. On the same day the Board duly presented to the Supreme Court of the United States its petition for writs of mandamus and prohibition directing the Circuit Court to vacate its order of May 13, 1938, and prohibiting that Court from exercising any jurisdiction upon the petition of the respondent to review and set aside the Board's Order without afford- ing the Board a reasonable opportunity to vacate its order. On May 31, 1938, the Supreme Court rendered its opinion holding that the Circuit Court lacked jurisdiction to enter the order of May 13, 1938, and stating that, in view of the expression of willingness by the Cir- cuit Judges to vacate the order of May 13, 1938, if the Supreme Court deemed said order to have been entered without jurisdiction, the issue of the writs prayed by the Board was supererogatory. On June 7, 1938, the Circuit Court, in compliance with the opinion of the Su- preme Court, entered its order vacating the order of May 13, 1938. On June, 14, 1938, the Board, having duly notified all the parties, entered its order vacating and setting aside its findings and Order of April 8, 1938, and directing that such further proceedings be taken in the case before the Board as the Board may be advised are neces= sary or desirable. On June 27, 1938, the Circuit Court, upon motion of the Board, dismissed the respondent's petition to review and set aside the Order of April 8, 1938. 1 Q v "i On July 8, 1938, the Board denied a motion filed by the respondent to dismiss the complaint herein and overruled an objection by the respondent to further proceedings by the Board in this cause. On the same day, the Board ordered Proposed Findings of Fact, Pro- posed Conclusions of Law, anc Proposed Order herein to be' issued, granted the parties the right to file exceptions, and briefs in support DECISIONS AND ORDERS .225 rof such.exceptions,:an.d_directed a hearing to be held before the Board for the purpose of oral argument upon any exceptions filed and upon the issues raised by the pleadings and evidence. On the same day, the Board issued Proposed Findings of. Fact, Proposed Conclusions of Law, and Proposed Order which were substantially the same as the findings and Order of April 8, 1938. Thereafter; both the re- spondent and the S. W. O. C. filed exceptions, and briefs in support of their exceptions,,to the Proposed Findings of Fact, Proposed Con- clusions of Law, and Proposed Order. The respondent also moved that the record be reopened for further proceedings and that the re- spondent be permitted to introduce additional evidence, or in the alternative, that it be permitted to have incorporated into and made a part of the record specified offers to prove. On July 26, 1938, the Board" denied a petition for leave to intervene in the he, proceedings, -filed on July 22, 1938, by the Central Council of Steel Plants, North- ern District of Republic Steel Corporation. - On August 11, 1938, a -hearing-before the Board was held for the purpose of oral argument, -at which the respondent and the S. W. Q. 'C. were represented by counsel. We have considered the exceptions of the respondent and the S. W. O. C. and, except as granted herein, find them without'merit. For -reasons discussed below, the respondent's motion to reopen'the record .and for leave to introduce additional evidence is hereby denied. The respondent's alternative motion that specified offers to prove be incorporated into and made a part of the record herein'is hereby granted 2 - 2 The respondent in its motion to reopen the record and in its offer to prove seeks to introduce in evidence a true copy of the copy of the findings and Order issued by the Board on April 8, 1938 , which was sent by the Board to the respondent or its counsel on or about the time of the issuance thereof, and a true copy of the copy of the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Oider issued by the Board on July 8, 1938„ which was sent to the respondent or its counsel on or about the date of the issuance thereof. Since both the findings and Order of April 8, 1938 , and the Pioposed Findings , Proposed Conclusions of Law, and Proposed Oider of July 8, 1938, are already a part of the record herein and are identical nnith copies sent by the Board to the respondent or its counsel, at the time of issuance, it is unnecessary to reopen the record to permit their introduction in evidence . The respondent also seeks to introduce evidence that after the Board had issued its order on June 14, 1938, setting aside its findings and Order of April 8, 1938, and ordering that such ,further proceedings herein be taken as the Board might be advised were necessary or desirable, the-respondent asked the Board by letter dated June 30, 1938 , to notify the respondent if, as , and when the Board determined to take further proceedings so that the respondent could take whatever action it deemed advisable to protect its interests before further proceedings were had, but that without first notifying the respondent as to what further proceedings it proposed to take , the Board on July 8, 1938 , made and-Issued its Proposed Findings of Fact, Proposed Conclusions of Law , and Proposed Order of July 8, 1938, which are substantially identical with .its original findings' and Order of April 8, 1938 Here again the evidence which the respondent seeks to introduce is already a part of the nec'ord herein, and it is unnecessary to reopen the record 'to permit its introduction in evidence. 226 NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, Republic Steel Corporation, is aNew--Jersey cor- poration with its principal executive offices in Cleveland, Ohio. Its total assets as of 1936 were valued at $343,950,000. On May 1, 1937, the respondent and its subsidiaries employed 59,282 persons, 40,172 of them in the Ohio plants. The respondent has developed an organization which is highly integrated from the mining of -ore and other raw materials to the manufacture and distribution of a widely diversified line of finished products. In a registration statement filed with the Securities and Exchange Commission on October 21, 1936, the respondent described its business as follows : - The registrant (Republic Steel Corporation) is primarily an operating company, but certain divisions of its business are con- ducted through subsidiaries. It is engaged in the manufacture and sale of a diversified line of iron and steel products and ranks as the third largest steel company in the United States, having an annual ingot capacity of approximately 6,053,000 tons. The products of the registrant include pig iron, semi-finished steel, alloy steels, special steels, billets, bars, pipe, hot and cold rolled sheets, and strip, tin and terne plate, bolts and nuts, fabricated material and other products. It is a leading manufacturer of alloy steels, including stainless steel and high tensile steels, and is an important producer of steel for the automobile industry and of electrically welded pipe.' The respondent and its subsidiaries-36 in number-operate numer- ous manufacturing plants. The principal iron and steel producing, manufacturing, and finishing plants which are in operation or have been operated within a recent period are located at Youngstown, War- ren, Cleveland, Canton, Massillon, Niles, Campbell, and Elyria, Ohio ; Brooklyn and Buffalo, New York; Chicago and Moline, Illinois; Hartford and Unionville, Connecticut; Pittsburgh and Beaver Falls, Pennsylvania; Gary and Muncie, Indiana; Monroe, Michigan; Cum- berland, Maryland; Minneapolis, Minnesota; Birmingham and Gads- den, Alabama; Los Angeles, California; and Hamilton, Ontario, 3 Board Exhibit No 108. The acquisition of Gulf States Steel Co in April 1937 further strengthened the respondent's position as the third largest producer of steel in the United States. It provided the respondent with a well-integrated unit located at Gadsden, Alabama, having annual production facilities for about 400,500 tons of ingots, 297,600 tons of finished hot rolled steel products, and finishing facilities for turning out large amounts of wire and wire products, nails and staples , sheets, and miscellaneous products used chiefly in the southern market. DECISIONS AND ORDERS 227 Canada. The respondent obtains more than half of its requirements of iron ore and coal from its own mines and the balance from the mines of companies in which it has an interest and by purchase from others. The respondent and its subsidiaries own or hold under lease extensive ' iron ore properties in Michigan , Minnesota, and Alabama; and coal properties in Pennsylvania, Kentucky, and West Virginia. We are concerned in this case particularly with the Ohio plants of the respondent located at Massillon , Canton, Youngstown, Warren, Niles, and Cleveland. With respect to these plants , both the outgoing shipments of iron and steel products and -the incoming shipments of .raw materials are prepoliderantly interstate in character . Thus, at the Canton works, shipments of products to points outside of Ohio for the year 1936 aggregated in value $19 ,717,266.36, whereas the ship- ments to points within Ohio aggregated $6,704,783.29 ; at the Massil- lon works, the respective aggregates were $17 ,533,026.74 and $4,823,- 432.13; at the Youngstown works, $25,321 ,814.36 and $5,176,815.58-; at the Warren works, $24,014,830.69 and $11,891,949 .34; at the Niles works, $754,829.05 and $2,932,243.42 ; and at the Cleveland works, $14,523,006.98 and $7,485,938.65.4 The respective aggregates in value of the principal raw materials which originate outside of Ohio and those which originate within Ohio are approximately as follows : Canton-$7,681,335 and $3,907,- 721; Massillon- $5,312,093 and $1,567 ,287; Youngstown-$15,395,589 and $1,762,342; Warren-$5,961,680 and $1,397,822; Niles-$122,542 and $71,276; Cleveland-$13,685,764 and $3,706,148.6 II. THE UNION While the- record contains no detailed evidence relating to the structure and function of the Steel Workers Organizing Committee and • the Amalgamated Association of Iron, Steel and Tin Workers of North America, we have found upon numerous occasions in other cases, and the record as a whole in this case makes clear, that these organizations are labor organizations affiliated with the Committee for Industrial Organization.° These products include semi-finished carbon, carbon bars and bar products, stainless sheet and still) and miscellaneous alloy, alloy bars, electric weld pipe, butt weld pipe, lap weld pipe, scull-finished alloy, sheets, hot rolled strip, hot rolled strip sheets, cold rolled strip, cold rolled strip sheets, miscellaneous scrap, and northern pig Iron 6 These raw materials include coal, iron ore, limestone, sinter, scrap, ferro manganese, Ferro silicon, nickel, vanadium, molybdenum, chrome ore, tin, spelter, dolomite, fluor spar, brick, acid; clay, lime, fuel oil, moulds and tools, pyrites, magnesite, sand, soda -ash, crushed silica rock, ganister and flue dust "Matter of Jones and Laughlin Steel Cmpoiation, Case No C-57, 1 N. L R. B. 503; Matter of Wheeling Steel Corporation, Case No. C-3, 1 N. L. R B. 699; Matter of Fan- steel Metallurgical Corporation, Case No C-235, 5 N. L. R. B. 930; Matter of Petroleum Iron Works Company, Case No R-255, 3 N L. It B. 774; Matte) of Lunkenheimer Com- pany, Case No. R-471, 4 N L. R. B. 1131; Matter of Combustion Engineering Company, Inc., Cam,e No 1-242, 5 N L. R B 344, Matter of Eagle Manufacturing Company, Cases Nos. C-478 and R-390. 6 N. L It B 492. 134068-39-vol. ix-16 228 NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES All the plants of the respondent are operated as part of a single, 'integrated business, and its labor policy in each plant is directed from a single source. The unfair labor practices alleged in the complaint relate to the respondent's plants in the Massillon, Canton, Youngstown, Warren and Cleveland districts. -We take up in order the events occurring in each of these cities. A. Massillon The respondent and its wholly owned subsidiary, Union Drawn Steel Company, operate two plants in or near Massillon : the Mas- sillon Works (Central Alloy District) located in Stark County, just outside the city limits, employing approximately 3,200 employees; and the Union Drawn Steel Company plant located in the City of Massillon, at some distance from the Massillon Works, and employ- ing approximately 450 employees. We turn first to the Plan of Employee Representation and its successors at the Massillon Works-the Employees' Representative Association and the Independent Association of Republic Employees. Against this background we consider the organizing campaign-of the S. W. O. C., the strike which began on May 25, 1937, the Back-to- Work movement, the activities of the Law and Order League of Massillon, and the tragic history' of the July days of the strike. 1. The Plan of Employee Representation and its successors,-the Employees' Representative Association and the Independent Asso- ciation of Republic Employees In June 1933, the respondent prepared and introduced in its Mas- sillon Works "A Plan of Employee Representation." Similar plans were introduced at the same time in its other plants and in the steel industry at large. The formal outlines of the Plan were contained in the Articles, drawn up by the respondent and distributed to the employees at the time of its inauguration. As expressed in the Plan, its purpose was to provide "an orderly and expeditious procedure for the prevention and adjustment of any future differences, to insure justice, maintain tranquillity and promote the common welfare." The Plan functioned through Joint Committees, composed of rep- resentatives of the employees and Company representatives named by the management. The Employee Representatives were elected an- nually on the basis of one representative for every 200 employees in each department.' All the Employee Representatives, elected through- 7 Only employees who were 21 years of age or over and who were American citizens, were eligible to be Employee Representatives. DECISIONS'AND ORDERS 229 out the Massillon Works constituted the General Body of Employee Representatives. After each annual election the General Body chose members for four standing committees. These committees, with the addition of Company Representatives who might equal but could not exceed in number the Employee Representatives, constituted the Joint Committees. If an employee was unable to adjust a grievance with the foreman of the work on which he was engaged, he might take the matter up either in person-or in writing through his Employee Representative, first with the superintendent concerned, second with the Management Representative,8 third with the management, which either tried to effect a settlement or, with the approval of all the parties, referred the matter to the proper Joint Committee. If, thereafter, the dispute had not- been satisfactorily settled within a reasonable time the em- ployee through his Representative or the management through the Management Representative might require the matter to be referred to the Joint Appeals Committee, which, in its turn, attempted to effect a settlement. If this failed, the Plan provided that the President of 'the Company should be notified and the matter referred to arbitra- tion, "if the President and a majority of the Employee Representa- tives on the Joint Appeals Committee agree to such reference." The Plan also provided that the Company should defray all the expenses of the operation of the Plan, including the pay of Employee Representatives. No provision, therefore, was made for dues or for the office of treasurer. Likewise there was no provision for member- ship in the Plan, all employees having the right to vote for Employee Representatives, and no provision for general meetings of employees. Finally, the Plan could be amended only by two-thirds vote of the entire membership of the Joint Committee on Rules, Ways, and Means, or by concurrent majority vote of both the General Body of Employee Representatives and the Representatives of the Management at an annual conference. 8 The Management Representative was appointed by the management to facilitate close relationships between the management and the Employee Representatives He was to respond to requests from Employee Representatives ; to attend, but not vote at, meetings of the Joint Committees; to refer for the management any matter to any committee of Employee Representatives, and refer to the Management any matter presented by a committee of Employee Representatives. Upon the point approval of the Chairman of the General Body of Employee Representatites and the Management Representative de- pended the right of all committees and of the General Body of Employee Representatives to hold special meetings or regular meetings at any other time than that provided for in the Plan. 9 During the fall of 1936, a Central Council, composed jointly of representatives of management and of Employee Representatives selected by the General Body of each of the respondent's plants, was informally instituted. All of its expenses were borne by the respondent In or after March 1937, at meetings of the Central Council in the respondent's offices in Cleveland, a revision was proposed and later amendments were adopted , formally Incorporating the Central Council in the Articles of the Plan. 230 NATIONAL LABOR RELATIONS BOARD Under these provisions of the Articles the respondent retained full control over the operations of the Plan . No amendment was possi- ble without the respondent's approval. No matter could be referred to arbitration unless the respondent agreed. Not only was there no. provision for meetings of employees as a body, but in fact the employees - were , precluded ` from any direct concern with the func- tioning of the Plan . All the expenses , including the time spent by Employee Representatives at meetings or adjusting grievances, were met by the respondent. Even the right of the General Body and all committees of Employee Representatives to hold special meetings or regular meetings at any other . time than that provided in the Plan, depended on the approval of the respondent . Thus behind its outward semblance of democratic procedure and its announced pur- poses of insuring justice and promoting the common welfare, the Plan was shrewdly designed to foreclose genuine collective bargain- ing and to fix firmly in the hands of the respondent an indisputable control over its employees. From start to finish, the Plan was the respondent's own. The cespondent prepared it, inaugurated it, and continued it in effect for almost four years, without ever submitting it, for acceptance, altera- tion, or rejection , to a vote of its employees. Further, the respondent lost no opportunity, through statements of its officials and otherwise , to impress upon its employees the virtues of the Plan and to exhibit its opposition to "outside unions." 10 Thus the respondent dictated the type of representation and "collective bar- gaining" it was willing to allow its employees to have. The following incident illustrates the manner in which the Plan operated : At the regular monthly meeting of the General Body of Em- ployee Representatives, held in the respondent's Industrial Relations Building on September 22, 1936 , a request was made to the Manage- ment Representative for a general wage increase for the employees of the Massillon District. "Mr. Portz (then District Manager for the Central Alloy District , Canton and Massillon Works) discussed this item in detail and stated it was impossible for Management to grant this request. He also stated that when all conditions warrant- this item will be given consideration." On November 6 the Massillon newspapers carried an announcement of a general wage increase for the 'Massillon District. On the fol- lowing day, Portz called a special meeting of the General Body of Employee Representatives and announced that effective November 16, 1936; wage rates would be increased 51/2 cents per hour in the lower wage brackets. Despite the fact that "there was some kick . . . 10 Further evidences of the respondent 's domination over the Plan are discussed infra DECISIONS AND ORDERS 231 because they hollered about the newspapers having it before the representatives had it," the General Body went through the solemn procedure of voting on a motion that the wage increase be granted. The motion, was carried. Such was collective bargaining under the Plan." On April 13, 1937, the day after the Supreme Court upheld- the constitutionality of the Act, Carl Myers, Acting District Manager of the Canton and Massillon Works, summoned the General Body of Employee Representatives to a meeting in the Industrial Relations Building of the Massillon Works and announced that the respondent would withdraw financial support from the Plan. After Myers left the room, the Employee Representatives immediately formed "The Employees' Representative Association." Nick Linckenhely and Nathan Brown, chairman and secretary of the General Body of Em- ployee Representatives under the Plan, were chosen by the Employee Representatives as president and secretary of the Association. Paul Hoffman, an Employee Representative under the Plan, was chosen treasurer. For their attendance at this meeting, the Employee Rep- resentatives were paid by the respondent. The same committees which had existed under the Plan continued as committees of the Association. Linckenhely testified that the com- mittees "kept on functioning the same as before, that is, committees seeing the foremen about grievances and superintendents"; th"t tile committees continued to be paid by the respondent for handling grievances, "the same as before"; that the committees circulated ap- plication cards for membership in the Association throughout the plant and elsewhere on company property, during working hours, on company time; that the Employee Representatives took no steps to dissolve the Plan; and that the Employee Representatives adopted and used as the constitution of the Association the Plan as amended on April 22, 1937.12 The„history and nature of these, amendments reveal -the extent to which the Plan and the Association were subject to the domination of the respondent. At a conference of the Central Council of Employee Representatives in the respondent's offices at Cleveland on March 8, 1937, the question of amending the Plan was discussed but deferred for later consideration. Shortly afterwards E. L. O'Connell, tem- porary secretary of the Central Council, submitted a proposed re- vision of the Plan to the Employee Representatives' from the various plants and to the respondent's vice president in charge of operations and its Director of Industrial Relations at Cleveland. This revision contained minor changes, of a kind calculated to diminish, but in no way to remove, the respondent's control. u A similar incident occurred in March 1937. The Plan apparently continued in existence under its original name, at Massillon. 232 NATIONAL LABOR RELATIONS, BOARD Soon after the submission of the proposed revision to the respondent the decisions-of the United-States Supreme Court upholding the con- stitutionality of the Act were handed down. The proposed revision was then further altered. In-its final form the'amended Plan, while omitting certain of the most obvious practices forbidden by the Act, retained- the same general structure. Articles dealing with the pay of Employee Representatives and the holding of Central Council meetings in the respondent's general offices were eliminated. The Joint Committees were abolished, though the four committees of Em- ployee Representatives remained. Any matter might be referred by a committee of Employee Representatives to the management through the Management Representative; and the management through the Management Representative might require a grievance which had not been satisfactorily adjusted to be referred to the proper committee of Employee Representatives. Requests for changes in rates of pay were to be considered closed upon a decision of the proper committee of Employee Representatives and the Management, unless an ap- peal was filed in writing by an employee or his Representative with the Management Representative within a period of 3 days after the decision was rendered. Although the General Body of Employee Representatives was to elect a treasurer, no provision was made for initiation fees, dues, or funds for the payment of any expenses which might be incurred 13 Employee Representatives Continued to be elected on a basis of one for every 200 employees in each department, and meetings of the General Body of Employee Representatives and of the committees were to be held monthly thereafter. No provision was made for meetings of the membership at any time and membership continued to be automatic.14 The record does not disclose the circumstances under which the final draft of the proposed revision was prepared or approved. It does appear, however, that mimeographed copies of the Plan as amended, identical for the Massillon and Canton plants, were circu- lated shortly after April 22, 1937. It was stated in the preamble of the amended Plan that the amendments had been - "adopted." Linckenhely testified that at one of the meetings of the Central Council, the Employee Representatives "revised those bylaws. We had a meeting with the management in regards to them." Since under the Plan the adoption of amendments required the approval of the respondent, it is a fair inference that the amended Plan- 13 There is some evidence that dues of two dollars a year were to be fixed at some future date, but the record contains no evidence that dues were collected by the Employee Representatives or contributed by the employees. "As stated above, it appears from the testimony of Linckenhely that, despite the absence of any provision for membership , the committees of the Association . did attempt to obtain signatures to membership application cards. DECISIONS AND ORDERS 233 accepted as the constitution of the Association-was, at the very least, approved by the respondent before becoming effective. As under the- Plan, no-meetings of the membership of the Asso- ciation were ever held and the members never participated in or had a voice in its affairs. Pressure by the respondent in favor of the Association and against the outside Union continued as it had under the Plan. Thus Peter Mouyios, as we find below, was laid off on May 3 because of his refusal to join the Association. Again Russell Eckroad, a head rougher in the hot mill, testified that near the end of April at a meeting in the mill of 28 head roughers, Superintendent Alvin Smith, after, mentioning a decrease in orders, and the high cost of production at the Massillon Works, said "that he thought everybody was satisfied with the company representation plan .. . if the C. I. O. organization would come in here, that there was still a good chance of not working . . . that possibly it would shut down the plant. If it did not, we would work only one or two days a week after that." Andrew Evans, sheet mill superintendent, an- nounced that he agreed -with Smith; and then Foreman David Lewis spoke : "`Boys,' he says, `we all been working good. We have all been drawing-nice pay . . . If this thing happens, if C. I. O. comes in here, and there is a strike in this- plant, and this plant shuts down, a -lot of you boys are going to lose your homes, your automobiles and you won't know where your next bite is coming from."' The respondent did-not call Smith, Evans, or Lewis as witnesses and made no showing as to their unavailability. It did seek to rebut Eckroad's testimony through Arthur Kemp, another employee present at this meeting. Nevertheless, in the light of Smith's speeches on another occasion, referred. to hereafter, we are inclined to credit Eckroad's version. Even on Kemp's version, however, it is clear that the respondent's supervisory officials were attempting to coerce the employees into joining the Association and not joining the S. W. O. C. - Despite -the respondent's efforts to use the Plan and the Asso- ciation to thwart- self-organization among ' its - employees, the S. W. O. C. continued to gain ground in the Massillon plant. On May 25, 1937, the employees at Massillon went out on strike. Throughout the strike the chief figures in the Plan and the Association played leading roles in the Back-to-Work movement. These matters are dis- cussed at length hereafter and we pass now to the formation of the, Independent Association of Republic Employees upon the reopening of the plant in July. On July 6, 1937, the day on which he returned to work, Nick Linckenhely, Chairman of the General Body of Employee Represent- atives under the Plan, President of the Association, and the leading, spirit in the Back-to-Work movement, called a noon-hour meeting of 16 employees, in the pipe shop of- the Massillon Works, to form a 234 NATIONAL LABOR RELATIONS BOARD successor organization to the Association. Linckenhely testified that he sent for the 16 employees before and during working hours. Four Employee Representatives, in addition to Linckenhely, attended. Be- cause of the odium attached to the use of the word "Representative" in the title of the Association, the committee of 16 decided to name the new organization the Independent Association of Republic Em- ployees, pursuant to a suggestion made at one of the Cleveland meet- ings of the Central Council of Employee Representatives held under the Plan. The committee of 16 also elected as temporary officers the same Employee Representatives who had been officers under the Plan and the Association. With the formation of the Independent, the Association disappeared from the scene. Later a new set of permanent officers was elected, none of whom, except Linckenhely, the vice chairman, appear to have been officers or Representatives in the predecessor organizations. Twenty-seven Employee Representatives, called the committee of 27, were also elected, on the basis of one for every 200 employees, "to have a way of dealing with the Company, representing the men." Many, if not all, of those elected had been Employee Representatives in the pred- ecessor organizations and active in the Back-to-Work movement. On August 2 and 3, at the call of the chairman of the Central Council of Employee Representatives, the officers of the Independent met in Cleveland to discuss the adoption of a constitution and bylaws. As of September 13, the constitution and bylaws had not been adopted. At the time of the hearing, the Independent claimed to have a mem- bership of approximately 2,400, of whom approximately 1,900 had paid their initiation fees and dues. Like its predecessors the Independent was merely the creature of the respondent. The committee of 27 was allowed to obtain dues, initiation fees, and signatures to membership cards in the plant during working hours. Notices of further meetings of the Independent were posted in the plant. In addition, the respondent's officials took an active part in coercing employees to become members of the Independent. Sherman Ebbert, a member of the Union who returned to work on July 12, testified that on that day, Ralph Ebberly, a head loader, approached him during working hours and asked him to sign a mem- bership card in the Independent. "He said it was all right, because it was a union amongst the employees, only it was to keep out any other outside union, and I asked him if it was compulsory and he said yes it is. He said `If you do not join it, we will throw you over the fence."' Ebbert promised to give Ebberly an answer later. On the next day, during working hours, Ebberly again asked Ebbert-to join the Independent. When Ebbert refused, Ebberly summoned a crowd of 15 or 20 men, including Paul Hoffman, one of the committee of DECISIONS AND ORDERS 235 27, who told Ebbert that unless he joined the Independent, they would refuse to work with him. Ebbert then went to see Peppard, general superintendent of the billet department. "He (Peppard) said `I understand you are having some trouble with the boys.' And I said `They claim they will not work with me unless I join their union.' And he asked me why I did not want to join. . . . `Well,' he said, `the boys said they won't work with you unless you sign the union, card.... By God, we are going to work around here and I ain't going to let no man hold up the work.... Now you can go home and think it over. When you decide to do what the boys want you to do, you can come back and go to work."' As Ebbert was leaving the plant Peppard sent for him, told him that he had straightened the matter out for the time being, and said that he might return to work. Later in the evening, Ebberly called Ebbert away from his work and announced that "the boys have decided they don't want you to come out to work tomorrow." When Ebbert replied,that he had been told by Peppard to return to work, Ebberly said "You will have to fight it out with the boys then." As a result, Ebbert signed a membership card in the Independent. On August 6, however, he voluntarily left the plant because he "didn't like the way they was pushing things around there." George Allen, a crane man employed by the respondent for 12 years and a member of the Union, who- returned to work on July 8, testified that one afternoon during the second week of his return, Thomas Burkhart, treasurer of the Independent, asked him to sign a membership card in the Independent. On the next afternoon, when Allen stated that lie had not yet made up his mind, Burkhart said, "If you do not sign this card,'the men are going to refuse to work with you and the foreman is not going to do anything about it." Later, Don Lyman, a motor inspector, from whom Allen took orders, advised Allen to sign the membership card in the Independent within the next 2 or 3 days if he wanted to keep his job. On July 27 a committee, consisting of two motor inspectors and 11 or 12 other employees, none of whom worked with Allen, presented him with an ultimatum, "You are either going to sign this card and line up with us or you are going to get out on a picket line with the C. I. 0." When Allen refused to sign, the 15 took a vote on the question of whether or not they wanted him to work. John Irwin, a steel foreman, announced the results of the ballot as 12 to 3 in favor of Allen's not working. Another man was assigned to Allen's crane. Allen then appealed to Andrew Evans, superintendent of the hot mill, who sent him to several other supervisory employees. Finally, Allen spoke to Jim Kelvey, head foreman over the electricians, and told Kelvey that the men had taken his job because he would not sign a membership card in the Independent. Kelvey replied "I can't do anything about .236 NATIONAL LABOR RELATIONS BOARD that . . . I give you a quit slip if you want to quit." Allen replied that he did not want to quit, that the men had taken his job and put another man on it. Kelvey promised to investigate the matter within the next few days. At the hearing on August 12, Allen testified that he had not yet heard from Kelvey. The record is plain that, except in name, the Independent was identical with the Plan and the Association. It was formed, at least ostensibly, by the Chairman of the Plan and the President of the Association. The leading figures were Employee Representatives under the Plan and the Association. It met to.adopt its constitution at the call of the chairman of the Central Council of Employee Rep- resentatives of the Plan. It replaced the Association, which dis- appeared upon its advent, and occupied the same place in the re- spondent's plant as its predecessors. As Linckenhely himself testified : The men wanted it (the Association) abolished on account of the name. . . . That is the only reason we changed the name and formed a new one. - Like its predecessors the Independent was dominated and con- trolled throughout by the respondent. It was formed on the re- spondent's property, received the respondent's favors, grew through the respondent's coercion. Further, even aside from actual inter- ference by the respondent with the Independent itself, the Inde= pendent could not, in view of the circumstances under which it arose, be considered free from the respondent's influence and control. The leading figures in the Independent_were a group of employees plainly under the respondent's domination and known by the employees to be so dominated. The successor to the Plan and the Association could not, by a mere change in name, be freed from the effects of the respondent's previous actions', In, addition, the Indepedent was es- tablished under other conditions of flagrant interference with the rights of self-organization, described hereafter. Such an organiza- tion, formed in such an atmosphere, could not be considered to represent the free, choice of the respondent's employees. Upon the basis of -the entire record we find that the respondent has dominated and interfered ivith the formation and administration of the Plan of Employee Representation, at the Massillon plant and of its successors, the Employees' Representative Association and the Independent Association of Republic Employees, and has contributed financial and other support to them. 2. The discharge of Peter Mouyios On May 3, 1937, during working hours,- Employee Representative "Happy" North approached Peter - Mouyios, a ,chipper, in the billet DECISIONS AND ORDERS 237 ,department, and asked him what union he wished to represent him. When Mouyios replied that he did not wish to be represented by any union, North said,' "Well, I got a card here I am going to fill out for you." Despite Mouyios' insistence that he would not sign or ac- .cept the card, North filled it out, signed Mouyios' name, detached the stub, and left it with a fellow employee, from whom Mouyios retrieved it before the hearing. The card, which is in evidence, is an acceptance of membership in the Association. A comparison of Mouyios' signature written at the hearing with his purported signa- ture on the card leaves no doubt that Mouyios' purported signature is not genuine. Mouyios testified that this entire incident took place in,the presence of Foreman Lefty Hilbert, that an hour and a half later, Hilbert came to where Mouyios was working and told him to go to see Peppard, and that Peppard then laid him off. When Mouyios protested that there were many men in the billet shed with less seniority who were not being laid off and offered to point out such men, Peppard looked at a little book and replied, "Well I cannot help that." The respondent contends that Mouyios was laid off, in the regular order of seniority, because of a general reduction in force of approxi- mately 180 chippers. With this contention we cannot agree. Fore- man Hilbert testified that he had submitted to Peppard a complaint from _Mouyios that two men with less seniority had been retained and Peppard had shown him a service record, according to which it appeared that both men had been hired before Mouyios. Hilbert stated that the chippers had been, laid off,'on the basis of'a list in Peppard's office, starting from the bottom of the list, but that he did not know _ whether or not the chippers at•the bottom of the list 'were junior in seniority to the rest, and did not know of his own knowledge whether seniority had been followed. Similarly, Lauris- ton Miller, a general foreman in the billet and finishing department, testified that he was given a list by Peppard of chippers to, be laid bff, but did not know whether or not the seniority rule had been 'violated-. It thus appears that Peppard was the only person whose testimony would rebut that of Mouyios. The respondent, however, did not call Peppard as a witness and made .no showing as to his unavailability. Although Mouyios did not become a member of the Union until a week after his lay-off, we think it clear that the real reason for his lay-off was his refusal to join the Association. We find- that the respondent has discriminated against Peter Mouyios in regard to hire and tenure of employment, thereby dis- couraging membership in the Union and-encouraging membership in the Association.. . 15 At the time of his lay-off, Mouyios was earning 621/2 cents an hour, plus a bonus, which brought his hourly rate to approximately 72 cents an hour, and had been working 3 or 4 hours a day for 5 days a week . Since May 3 he has not earned any money. 238 NATIONAL LABOR RELATIONS BOARD 3. Background of the strike; the lock-out at the Massillon Works In this atmosphere of company unionism and ,hostility to outside unions, the S. W. O. C. in June 1936 began its campaign to organize the employees of the respondent. Headquarters were established in Canton, approximately eight miles from Massillon, and organizers were sent out to obtain members among the employees in the Canton- Massillon area.18 On July 2, 1936, the respondent issued the following notice : REPUBLIC STEEL CORPORATION AND SUBSIDIARI S, GENERAL OFFICES REPUBLIC BUILDING, Cleveland, Ohio. To OUR EMPLOYEES : We are making the following statement so that you will know the attitude of Republic toward the recently announced campaign for unionization of the steel workers. The leader of this drive is John L. Lewis, head of the Coal Miners' Union. He is not connected with the •steel°industry.' He has enlisted the help of other organizations not connected with the steel industry. . . . Representatives of radical and com- munistic groups are helping in this movement. William Z. Foster, chairman of the Communist Party, has announced his support. Foster was the leader in the unsuccessful attempt to unionize the steel industry in 1919. WHAT Do THEY WANT? John Lewis and his organization want more workers to pay them more dues. . . . If they could organize the steel workers they hope to collect $5;000,000 a year from them. Republic em- ployees alone would pay over half a million dollars. Further- more, they could place dues and assessments at any figure they liked and steel workers would have to pay them. The real aim of the present organization drive is to establish a closed shop. They want to force you into the union and make you pay for the right to work. Under a "Closed Shop" every man has to pay his dues to the union whether he wants to or not. If he gets behind in his dues, they can throw him out of the union. By this threat they can keep the dues rolling in. One of the announced purposes of this drive is to throw out your Employee Representatives whom you have elected for col- lective bargaining with the management. The union wants to destroy all Employee Representation Plans in the steel industry. 3^ The Canton and Massillon Works are apparently classified by the respondent for administrative purposes as one region, the Central Alloy District which is under the supervision of a single District Manager. DECISIONS AND ORDERS 239 Your Employee Representation Plan is not run by outsiders. It works. Under your plan, you select your own Employee Rep-, resentatives-men you know and with whom you work. Under a union you would be represented by outsiders who may know little or nothing about your problems, your management, or the steel industry. Furthermore, you would have no choice in their selection. You would have to accept any bargain they made for you.' You would have to pay money to be dictated to by some- body you did not even know. WHAT ARE THEIR METHODS? The methods customarily used by professional union agita- tors and organizers are force, coercion, and intimidation of workers and their families. They threaten to call a strike to force men to join their union. They try to force mills to stop operation and keep men from their work for months at a time. They do this to scare men into their union whom they know do not want to join the union. WHAT IS REPUBLIC'S STAND? Republic stands for the "Open Shop" principle. No employee has to join any organization to get or hold a job. Advancement depends on individual merit and effort. Republic will not permit any activities within its plant which will : 1. Interfere with the orderly conduct of its operations. 2. Stir up strife or discontent. 3. Threaten the peace and comfort of its workers and their families. Every Republic employee owes a duty of loyalty to the Com- pany so that its best interests may be served. Conduct detri- mental to the interests of the Company and which may disrupt the satisfactory relations 'between employees and management will not be tolerated. s/ T. M. GIRDLER, Chairman and President. R. J. WYSOR, Executive Vice President and General Manager. C. M. WHITE, Vice President in Charge of Operations. H. B. CARPEN TER, District Manager.'? 17 Italics supplied. 240 NATIONAL LABOR RELATIONS BOARD • With this statement of the respondent's policy as a guide, we turn to the history of the union's attempt to organize the employees at Massillon. From the outset, the organizers were followed and spied upon by paid agents of the respondent. Howard Porter and Guy L. Sweeney, S. W., O. C. organizers, testified that men in old clothes and with a one or two day growth of beard, whom they had previously seen in the uniform of company police at the Union Drawn Steel Company, trailed them almost every day for three or four months in all their or- ganizing trips in Canton, Massillon, and even to Louisville and Na- varre, Ohio, towns located several miles from Massillon. - Among the automobiles driven by these men, the organizers recognized one, a Ford coupe bearing the 1936 Ohio license number E-12, usually driven by the same two men, which invariably followed them. These men made no attempt to conceal their activities. They took rooms in the Northern Hotel in Canton on the fifth floor below the rooms occupied by Sweeney and Porter. Every time an organizer would step out of the hotel ... this same car E-12 would be following us.... There was always two, it was a coupe, 1935 Ford coupe .. . Q. (By Mr. Lauter.) They would always follow you in an automobile? A. No, at times when we would leave the hotel and go out to breakfast, lunch, or dinner, if we were walking, or making a con- tact, they would always follow us there walking, because they always parked across from the hotel....' I have had them fol- low me into the' restaurant, back to the hotel, on the elevator, upstairs and back down again.... They would follow me around in Massillon in making contacts. In other words, they would watch me, so that I would not get to see any steel workers because I did not want to get any steel worker in trouble. On one occasion, after a midnight meeting in a public park of the employees of the 18-inch bar mill of the Massillon Works, these same two men followed one Laughlin, an employee of the respondent who had expressed interest in S. W. O. C., to his home, and for several days afterward were seen parked there for hours at a time. On an- other occasion, these men, accompanied by 15 or 20 others, followed several S. W. O. C. organizers to a fish fry at Eagles' Hall in Massillon given by the employees of Union Drawn Steel Company, and suc- ceeded in staying so close to the organizers that they had no oppor^ tunity to speak to any of the employees there. On a third occasion, Porter and Sweeney were followed by the men driving the Ford coupe- with the license number E-12 to Louisville, Ohio, where they had gone to visit a prospective member. A black sedan with five men'cut DECISIONS AND ORDERS 241 in ahead of them, half blocking the road; the Ford coupe stopped- directly behind them. The organizers escaped from this cul de sae but were prevented from visiting their prospective member. The activities of these men were reported to Sheriff Nist of Stark County, who informed the organizers that if the car followed them out of Massillon into Stark County again, he would arrest its occu- pants. % On September 23, the two men driving the car with the license number E-12 followed Porter out of Massillon to Navarre, where he stopped at a filling station and telephoned to the Sheriff's office. In few moments several deputy sheriffs in a cruiser car drove up, appre- hended- the two men, and took them to the County Jail, where they gave their names as-Long and hlcCallister, stated that they were plant policemen at the Union Drawn Mill in Massillon and informed Deputy Sheriff Koellner that they "had business following this car, that it-was special work assigned to them as policemen at the Republic Steel 'Corporation." Porter sought to press charges against them, but was informed by the District Attorney at Canton that there was no law prohibiting such activities. The men then signed waivers, releas- ing the-Sheriff from liability, and left. To all of this testimony, the respondent offered no evidence in rebuttal. As a result of the respondent's known hostility to the S. W. O. C. and the constant and unconcealed shadowing of union organizers by the respondent's paid agents, the employees were afraid to be seen in the company of the organizers or even to permit them in their homes. At 13rst, therefore, meetings were secretly held "out of town after night, out in corn fields,. in parks, and different places where we thought nobody was watching us." Later, however, as more of the employees joined the S. W. O. C., meetings were held in the open; the membership grew ; inroads were made even among the Employee Representatives. In December 1936, New Deal Lodge No. 1124 was chartered by the S. W. O. C. While the respondent's police were thus engaged in shadowing union organizers, the respondent's foremen and supervisory officials were endeavoring by other means to combat the growth of union senti- ment. Thomas Pastorius, an employee who had been approached to join the S. W. O. C., told Kenneth Poorman, a volunteer organizer for the S. W. -O. C., "I am a foreman now, and as a foreman I am supposed to quash all talk of organization in the shop." Another employee was forewarned by a superintendent to expect the visit of organizers and "watch his foot." Joe Morton, a member of the S. W. O. C., testified that Foremen David Lewis and Hayden Bright repeatedly warned him not to talk union to his fellow employees and stated that it was part of their jobs to break up this C. I. O. move- ment in the plant. Russell Eckroad, rougher in the hot mills, testified 242 NATIONAL LABOR RELATIONS BOARD that the same David Lewis, after informing him that "Girdler will never sign a contract with the C. I. 0.," mentioned something that had happened "up town" at the union hall. When Eckroad asked, "How do you know that?" Lewis replied, "That is all right how I know that . . . We know things down here 10 minutes after they happen up town, no matter where it is." In September 1936 Alvin Smith, general superintendent of the sheet mill, sent for Elmer Jordan,, a helper in the sheet inspection department, and asked him what connections he had with the C. I. O. and John L. Lewis. Although Jordan was then a member of the S. W. O. C., he disclaimed any knowledge of the C. I. 0., fearing that such an admission would result in his discharge. Smith then pro- ceeded to lecture Jordan as follows : "Mr. Jordan, you know as well as I that the steel industry cannot be organized." He said, "The Republic Steel Corporation has too much money for a thing like that to come in here." He said "you might organize - the brick layers and carpenters, they are just a handful of men, but you will never touch' Republic Steel. You know what happened down here a few years ago to the men who took an active part in the organization." They lost their jobs. I think the best thing for you to do is lay off." Several weeks later Jordan was again summoned to Smith's office, where Smith informed him that his work was becoming unsatis- factory. He said; "You are not on the job.... Your foreman is com- plaining about your not working right, talking to the men too much." He said, "You are going to leave the C. I. O. alone or you are not going to have a job here." "In other words," he said, "if they did, if they asked for recognition, we will shut this plant down, because we are operating now at cost." Jordan testified that Smith again called him to his office in Feb- ruary 1937 and said : "I see that you did not listen to me when I told you before." I said, "I do not know what you are talking about." He said, "Well, I see you are one of the active men in the C. I. O. and you have guts enough to go in part of the mill and pass out papers and then come in and take your job." "I do, I absolutely have," I said, "I did not get paid for it. I am doing it for the benefit of the men in this plant." He said, "This plant is going to be shut down. The orders are getting low. We are going to shut this 18 In May 1935, the Amalgamated Association of Iron, Steel and Tin Workers of North America, called a strike at the plant of the Berger Manufacturing Company, a wholly owned subsidiary of the respondent, in Canton, Ohio. 'DECISIONS AND ORDERS 243 plaiit down. It seems you are all going to be out of a job." He said, "Mr. Chase (assistant superintendent) thinks a lot-of you. We were talking here ' the other day and we were figuring on putting you on an inspection job which you are entitled to.", He said, "If you keep this thing up that you are doing now, I,can- not-give you a job." On March 17, 1937, there occurred an event of historic importance in the' steel industry : representatives of the Carnegie-Illinois Steel Company, and other subsidiaries of the United States Steel Corpora- tion, met, bargained collectively, and signed a contract with the S. W. O. C.. covering wages, hours, and working conditions, and recognizing the S. W. O. C. as the representative of its members who were em- ployees of those companies. On the day following the signing of this contract, the respondent called a special meeting at its Cleveland offices of "the'Joint Committee of the Representatives of the Northern Steel Plants and the Subsidiaries.'" The minutes of this meeting, mimeographed and paid for by the respondent, and distributed to the Employee Representatives, read in part as follows : Mr. White (respondent's vice president in charge of opera- tions) addressed the conference and discussed Corporation labor relations with the Representatives. Mr. Voss, Director of Industrial Relations, explained all about collective bargaining with the representatives of any group with- in the employ of our Corporation. The Joint Session showed the efforts of our different units in combating the encroachment of outside groups. The Buffalo and Cleveland Units have a Security League. This league has members avowed to support and help sustain all the activities in connection with the Republic Steel Representation Plan. At this point, a motion was made and seconded that all the representatives ° of both the Steel and Subsidiaries back the Management in opposition to all outside labor organizations. This motion was carried unanimously. Another lnotiori was made and seconded that each General Body within the Corporation develop methods best suited to their locality in fighting any coercion or intimidation in connec- tion with labor organization. It was, also, suggested that each unit (Steel or Subsidiary) offer to each other the procedure or systems used in their localities to offset any efforts of outside groups. 19 This "Joint Committee " meeting appeals to have been a meeting of the Central Council. 114063-39-vol. ix-17 244 NATIONAL LABOR RELATIONS BOARD Before adjournment, an exchange of thanks between Manage- ment and Representatives developed. A very fine spirit of cooperation was manifested by both to carry on under our pres- ent set up.20 The results of this program of opposition to outside unions ap- peared almost immediately in those plants of the respondent involved in this proceeding. At Massillon, foremen and Employee Repre- sentatives distributed petitions among the employees during working hours, stating, "We, the undersigned, are satisfied with our present Plan and do not want interference from the outside C. I. 0." In the hot mill Employees Representatives circulated a petition reading, "We, the undersigned, are satisfied with the Representation Plan and the wages, hours and conditions of the mill." At first only two or three of the 60 to 65 men in the department signed it. The Employee Representatives then sent for Foreman Lewis, who asked: What is the matter with you fellows, you do not Avant to sign this petition. Everybody up above has signed it . . . Should I bring it down again? . If you boys don't sign this, the result of it will be that we won't work very long . . . if we don't sign this thing up and straighten it out like all the rest of the plants are doing, that when the company man went out on the road at the end of the month, he did not know whether he would get us any more orders or not. When Lewis returned with the petition, the men signed it. At about the same time, the chippers in the billet department were told by their foremen to lay down their tools and report in groups of ten at a time to General Superintendent Peppard's office. There the chippers were met by Employee Representatives, who copied their badge numbers on a slip of paper and informed them, "We called you boys in here to sign, so that with your signatures fixed opposite your badge number that you are satisfied with the kind of employees' representation we got, this kind in the plant." Peter Demos, an em- ployee, testified that he signed the petition under protest, because, had he refused, his badge number would have remained on the paper without his signature, thus indicating his refusal to sign. A number of the chippers were apparently unable to read English. Employee Representative Pappas without reading the petition aloud, ex- plained it to them in Greek. A week or two later, Demos testified, "we saw in the local' papers a news item that the employees of the Republic Steel Corporation, Massillon, rejected the C. I. 0. and copies of this .:. petition were sent to the local authorities and to the state authorities to show that the employees were satisfied with 20 Itancs 'suppled. DECISIONS AND ORDERS 245 the, Representation Plan and they did' not desire any outside inter- ference from' aii outside union." During March, Alvin Smith, general superintendent of the sheet mill, called special meetings of the employees in several departments and threatened them with the loss of their jobs if the respondent were forced to recognize the C. I. O. Joe Morton, a catcher in, the hot mill, testified that at a meeting in the Truck Garage of the Mas- sillon Works Smith stated "that he didn't want any of the members there to join the C. I. 0., or to join any outside organization, that the Employees' Representation Plan had been very successful there, and that .we had gotten our recent wage increases through the Em- ployees''Representative Plan and that if the C. I. O. had to be recog- nized by the Republic Steel they would close down before they would recognize the C. I. O. The high cost of operating under a union contract would not let them work. He also stated that he would hate like hell to see grass growing in the streets of Massillon." Elmer Jordan, a helper in the sheet inspection department, testified that at another meeting in the Truck Garage, Smith "got up on a box . . . and lie had a C. I. O. membership card, and he read this card off that I accept membership in the Amalgamated Association. `Now,' he said, `boys, I want to tell you one thing, the coal miners, the Mine Workers of America, they will assess then five or ten dollars and take everything out of their pay that they want. That is what will happen to you. They are a bunch of grafters, communists, and they are reds . . . The first thing you can do if you want to hold your job is lay off of this organization ... In other words, this company has been running in the red for the last three years merely making expenses . . . Up in Monroe Michigan that plant they took over . can operate iron for half the costs they operate it here and save shipping costs." Although the respondent did not call Superintendent Smith as a witness, it sought through, the testimony of others present at these meetings to rebut certain portions of both Jordan's and Morton's testimony. On the whole record, however, we are inclined to believe that Superintendent Smith made the statements reported by Jordan and Morton. Other testimony that Smith made statements of a similar character on other occasions stands entirely uncontradicted. Moreover, the respondent neither called Smith as a witness nor made any showing as to his unavailability. Even from the testimony of the respondent's witnesses, it is apparent that Smith mentioned the possibility that the mill would lose orders and warned the- men not' to join anything of any kind. Further, at approximately the same time, the respondent's District- Managers in-other plants were 246 N_\'l'IONAL'`LABOIt RELAfIO^S BOARD reiterating to meetings of Employee Representatives the respond= ent's announcement of policy made on July 2, 1936, that the Com- munist party was supporting the C. I. 0., that John L. Lewis, Presi- dent of the United Mine' Workers, wanted to organize steel workers for the money involved, that the respondent stood for the open-shop principle, was in favor of the Plan, and would not tolerate conduct which would disrupt what the respondent considered to be the satis- factory 'relations between the employees and the management. It would be curious, indeed, if the supervisory officials of the respondent explained the respondent's policy in a substantially different way from that in which the respondent's president had stated it. Shortly after these meetings and within a fortnight after the sign- ing of the Carnegie-Illinois agreement, the union for the first,time approached the respondent with a proposal for collective bargain= ing. On March 30, Clinton W. Golden, Regional Director of the S.' W. O. C. for the Northeastern Region, wrote to Girdler, request- ing a convenient date for a conference and enclosing a copy of a proposed agreement, identical in its principal terms with the Car- negie-'Illinois agreement. The respondent did not reply. On May 3 Golden addressed the following telegram to the respond= ent: On March 30, 1937 we sent you standard collective bargaining contract with request for conference to discuss same stop No acknowledgment or other reply received to date stop Wide spread unrest among employees your company various mills prevails over uncertainty your position regarding signed collective bar- gaining contract stop This unrest accentuated result lay off several hundred union' members your Canton and Massillon Works stop Unless we can have definite assurance from you with date for conference to negotiate written contract without further delay we shall be obliged disavow all responsibility union mem- bers in your mills remaining at work. On May 5, J. A. Voss, Director of Industrial Relations, replied : Your request for a meeting to discuss signed contract has been referred to me ,for reply. In view of Wagner Act see no necessity for signed contract. The policy of this company has been and is'now that it is willing to meet with anyone to bargain with him for whomsoever he represents. In conformity with this general policy the proper representatives of this company will meet with you- at any time mutually convenient for collective bargaining purposes. Advise'if Tuesday May eleventh my office Cleveland satisfactory • for' meeting. DECISIONS AND ORDERS 247 On the following day, Golden wired back : - , Your v6re fifth received stop Are we to understand you pro- pose in lieu of signed collective bargaining contract that con- tracting parties commit provisions verbally agreed upon to memory and rely thereon for future reference whenever con- ferences are necessary to discuss grievances that may arise there- under stop Do, you further propose that management officials in the thirty five mills operated by your company and-union grievance committeemen numbering two hundred as well as the sixty thousand employees also indulge in this memorizing proc- ess stop Is this your conception of orderly constructive ' methods of collective bargaining as contemplated by National Labor Relations Act stop If so we consider conference you propose for May 11 futile waste of time and energy stop Do you propose to accept terms similar to those in agreement signed by Carnegie Illinois Steel Corporation and approximately one hundred other companies' with representatives of Steel Workers Organizing Committee without undertaking to affix your Company signa- ture thereto stop. A conference, nevertheless, was held between representatives of the S. W. O. C. and of the respondent in Cleveland on May it. ' On the same day, the respondent issued the following statement : To OUR EMPLOYEES : The following statement is being made so that you will know the attitude of Republic Steel Corporation toward the effort of the Committee for Industrial Organization (C. I. 0.) to force the company to sign their union contract. In its effort to secure such contract, C. I. O. has threatened to call a strike. You have a vital interest in this situation. It involves your right to work in peace and to support your family in comfort. We are not convinced that the C. I. O. contract is for the best interests of the employees or the Company... . After summarizing the letter of March 30, addressed by 'Golden to the respondent, and the telegrams of May 3, 5, and 6, the state- ment continued : The C. I. O. made no complaints (at the meeting on May 11) relative to wages or hours of Republic employees. In spite of this, the Union demanded that the Company sign their Contract. This is the only matter at issue and the Company at the May 11 meeting informed the C. I. O. representatives that it still be- lieves it inadvisable to sign such contract from the standpoint of the employees and of the Company itself. 248 NATIONAL LABOR RELATIONS BOARD Among the reasons for this decision are : 1: Thousands of our employees, through their representatives, have protested against the signing of any agreement by the Com- pany with the C. I. O. The employees of Republic now have a successful Plan for collective bargaining in which plan a large majority of the employees participate. 2. A study of the proposed contract wages, bonus, safety pro- visions, seniority rules and methods of handling grievances speci- fied in the proposed contract are no more favorable than those now enjoyed by you. 3. Both parties to it contract should be responsible. Republic is held by law responsible. for acts of its officials. C. I. O. does not assume the same kind and measure of responsibility. 4. The policy of Republic Steel Corporation is that NO EM- PLOYEE HAS TO JOIN A UNION TO GET OR HOLD A JOB. Although the proposed agreement by its language does not disclose the ultimate objective of a closed shop, C. I. O. or- ganizers have stated that the signing of the Carnegie-Illinois agreement "will result in the complete unionization of the entire industry." Republic does not believe in the closed shop principle. 5. The signing of a C. I. O. union contract would be unfair' to the workers who do not favor the Union as their collective bar= gaining agency and to those who prefer to deal for themselves individually with the Company. Coercion would be used by the Union in an attempt to force these workers into the Union against their wishes causing them to surrender, for all practical purposes, their rights to deal with the Company except through the C. I. O. on such vital questions as wages, hours, and working conditions. 6. Such a step would disturb the present harmonious relations with our men and break down the mutual confidence which has existed in collective bargaining matters between the workers and management. 7. The signing of C. I. O. contracts in other industries has not resulted in industrial peace. Notwithstanding signed agree- ments, sit-down strikes and other interruptions of work have occurred in the automotive and other industries. The policy of this company has been, and is now that it is willing to meet with any one to bargain with him for whomsoever he represents. Republic believes that every employee is entitled to determine for himself, free from discrimination, interference, restraint, coercion and intimidation by anyone, whom he' wishes to repre- sent him in the matter of collective bargaining. In view of the foregoing facts and because of the Wagner Act and recent 'deci- DECISIONS AND ORDERS , 249 sions of the United States Supreme Court, Republic Steel Corpo- ration sees no necessity for signing the C. I. O. contract. .The Company is willing to bargain collectively with its em- ployees.:as in the past. MEMBERSHIP OR NONMEMBER- SHIP IN ANY ORGANIZATION IS NOT A REQUIRE- MENT OF EMPLOYMENT. On the night of the conference, the Association held a mass meet- ing in the Main Office Auditorium of the Massillon Works. Em- ployees on' duty during this time were paid their regular wages by the respondent for attending, and a total of approximately 2,000 were present. Nick Linckenhely, the principal speaker, addressed the meeting over a loud-speaker system; his main topic was "that the Employees Representation Plan had been so good, so successful in cooperating with the employees in the company in getting the pres- ent wage increases ... that the C. I. O. was not a fit organization to belong to, that if the Republic Steel was forced to recognize the C. I. 0., they would have to close down the plant, on account of the high cost of operation, and that being an old mill, Massillon would be without the Republic Steel." Despite the respondent's pressure upon its employees to force them into the Association, however, that organization, on its own estimate, was never able to obtain more than 1,100 applications for membership out of over 3,000 employees. As a method of organizing opposition to the Union the Association was a failure. The respondent, therefore, resorted to a more direct method of attack. On May 20 it shut down all the mills of any consequence in the Massillon Works, with the exception of the blooming mill, and locked out its employees. The respondent contends that the shut-down and lock-out were not aimed at the Union, but were caused by an emergency in the main turbo-generator unit which gen- erates power for the use of the mills. T. J. Ess, a combustion engineer employed by the respondent, testified that at about 7 p. in. on ,the night of May 20 he received a call from the plant that there was trouble with the turbo-generator unit, that he went to the power- house, saw the machine vibrating very badly, and after consultation decided that it was necessary to shut down certain units of the plant. At 10: 45 p. in. power was switched off from the sheet mills, the 12 and 18 inch mills, and the hot strip mill-all the mills, as Ess testi- fied, of any consequence in the Massillon Works, except the bloom- ing mill; and the mills remained shut for 3 days until May 23. The open hearth, and some of the minor auxiliary departments remained unaffected. On cross-examination, however, Ess admitted that the respondent maintained a connection in the plant with the power service of the 250 NATIONAL LABOR RELATTONS BOARD Ohio Public Service Company in order to take care of,such a break- down and that power to ran the mills could have been obtained from that company without even pulling a switch. It is therefore appar- ent that even if there was a break-down in the turbo-generator unit, there was no emergency which compelled the respondent to shut down its mills. On the other hand, the respondent had repeatedly threatened to close down the plant before it would grant recognition to the union. From November 1936 until a few days before the shut-down, in conversations, interviews, and meetings, Alvin Smith and Andrew Evans, superintendents in the sheet mill, and Foreman David Lewis, had drummed into the ears of the employees that recognition of the C. I. O. would mean a shut-down of the plant. The chief selling point of the Association, as reiterated by the Employee Representa- tives to all comers, was-Join the Association or else-if Republic is forced to recognize the C. I. 0., it will close down the plant. Quite apart from these repeated threats and warnings, the uncoi tra- dicted testimony of Joe Morton, president of New Deal Lodge No. 1124, reveals the respondent's motive for the shut-down. On May 21 or 22 Morton met Foreman Lewis on Main Street in Massillon . Mr. Lewis said, "I guess you will have enough of this strike when the company gets done with you." I said, "What do you mean `when the company gets done with me?"' He says, "When we get through starving you out." "Why," he said "you won't want to strike." In the light of these facts and the respondent's failure to show any convincing business reason for its conduct, we are compelled to con- clude that the respondent shut clown its mills and locked out its employees for the purpose of intimidating and coercing them not to join or to discontinue their membership in the Union. The respondent by the foregoing acts discriminated against its employees in regard to hire and tenure of employment thereby discouraging membership in a labor organization, and interfered with, restrained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. To consider the lock-out, however, as merely one more instance of the respondent's hostility toward the Union would be to ignore the circumstances under which it occurred and the history of which it was a part. After the exchange of telegrams on May 6 and the break- down of negotiations on May 11 between the S. W. O. C. and the respondent, the situation in Massillon was rife with unrest. At this critical time, the respondent saw fit to carry into execution its repeated threats to close the plant if the C. I. O. asked for recognition. In the long history of the respondent's campaign to crush the Union, this DECISIONS AT\D 'O1WI:rs 251 was the final blow. Under these circumstances, the Union could not hope to preserve, itself without immediate resort to action. At 11 p. m. on the night of May 25, pickets surrounded the plant and the strike began. The respondent's activities after the lock-out leave no doubt that it expected the strike and made preparations to meet it. On the morn- ing of May 25, Carl Myers, acting District Manager of the Canton 'and Massillon Works, called on Stanley W. Switter, Massillon's Chief of Police, told Switter that "they expected a strike at almost any time in the near future and wanted to know how the Police Department was able to handle the situation ... how we stood and how many men we had . . ." Later in the day, James A. Lewis, Service Manager of the Alloy Steel Division of the respondent, who had been in Detroit, Michigan, was informed by his office "that there was considerable talk about 'a strike taking effect that night" and made arrangements to get back as quickly as possible by flying from Detroit to Akron, arriving in Massillon at about 8 p. in. C. W. Cravens, one of the respondent's salesmen, who remained in the District Office with 85 other employees, including three cooks and seven telephone operators from May 25, for 15 days and 16 nights, testified that he came back from Akron to go into the office because he had heard rumors that there was going to be a strike, and that on the night of May 25 there were a number of cots in the District Office and a food supply "more than enough for '15 days and 16 nights." Several foremen and employees who re- mained in the Massillon Works after the strike was called also testi- fied that they slept on cots which were already there, or which were delivered to the plant on the night of May 25. 4. The strike Between May 25 and July 1, 1937, when Governor Davey ordered the Ohio National Guard into'Massillon, the Massillon Works and the plant of the Union Drawn Steel Company remained closed. ` During this period, in preparation for the reopening of the plants; the respondent was engaged in a campaign to conscript the Massillon police department to break the strike. Certain obstacles appeared to block the easy accomplishment- of this objective. The Massillon police department was small and poorly equipped for the respondent's purposes. Of a total of 18 regular police, only 13 were available for strike duty and the depart- ment lacked a supply of tear and vomiting gas and other equipment considered essential to break a strike. Furthermore, all the city officials-Mayor Krier, City Solicitor Hardman, Chief of Police Switter, and the City Council-were insistent not only that the city could not afford to hire special police or buy extra equipment, but 252 NATIONAL LABOR RELATION'S BOAED that the Massillon police must remain neutral and would not be used to break the picket lines. Finally, a large body of public opinion in Massillon supported both the striker's cause and the attitude of the city officials. The respondent began systematically to mobilize its forces and seek its allies to overcome these obstacles. On May 26, the first day of the strike, a committee of six em- ployees met at Linckenhely's home and formed, a Back-to-Work Com- mittee. The members of this committee were either officers or Em- ployee Representatives under the Plan and the Association.21 During the strike other Employee Representatives and at least two fore- men-Paul Rider, foreman in the billet shop, and "Chic" Immell, foreman in the blooming mill-joined the committee and took an active part in its work. Thus the Back-to-Work movement was or- ganized by the very employees through whom the respondent had maintained its control over the Plan and the Association, and was assisted by the respondent's foremen. On May 27 or 28, the Board of Directors of the Massillon Chamber of Commerce organized a temporary committee composed of business- men and citizens of Massillon with the announced purpose of act- ing as a clearing house for information, with regard to the various phases of the strike situation as it affected the business community in Massillon. This committee later developed into a broader or- ganization which came to be known as the Citizen's Committee, the Citizen's League, the Labor Relations Committee, or more commonly, the Law and Order League of Massillon. Its most active members were D. W. Case, secretary of the Massillon Chamber of Commerce, Jonathan Lester, president of the Massillon Rubber Company, and Glen Lanham, manager of the Erie Chevrolet Sales Company. These two organizations formed the spearhead of the respondent's attack. For the first 2 or 3 weeks of the strike, as workingmen demanding only the right to work and as citizens interested in pre- serving law and order, they presented to the public an unimpeachable front. Thereafter, behind this front, the respondent proceeded to manipulate these groups for its own purposes. On June 9, Glen Lanham of the Law and Order League went to Chief Switter's office with the message that Carl Myers and Gordon Hess, the respondent's assistant sales manager, wanted to see Switter in Canton. City Solicitor Hardman, Switter and Lanham then drove to the Hotel Onesto in Canton where Myers was confined to his room 21 Nick Linckenhely, chairman of the General Body of Employee Representatives under the Plan and president of the Association ; N C. Brown, secretary of the General Body of Employee Representatives under the Plan and secretary of the Association ; Paul Hoffman, Employee Representative under the Plan and treasurer of the Association ; Henry Gender , Sam Schilling, Don Burkhart , identified by Linckenhely as Employee Representatives under the Plan and the Association DECISIONS AND ORDERS, 253 as a result of having been shot by one of his company guards. Myers immediately launched .into an attack upon the Chief and the city officials. "He wanted to know what the hell was going on over there; were we going to allow the hoodlums to run things and why they cut the telephone wires and why the hell we didn't take action such as the Chicago police did and put them where they be- longed ... they knew how to handle the situation, if we did not,22 and if we didn't wake up, we wouldn't need what police force we had, we wouldn't need a chief of police and we wouldn't need a city solicitor and we wouldn't even have a first class post office; that Massillon would be a junction if that mill shut down, which it looked as if it would with the wires cut and they would have to evacuate the office . . ." Chief Switter replied that he had only 18 men and that ",it was not our job (anyway), that we wasn't a strikebreaking outfit, and, furthermore, the mill was down in the country out of the city limits:",.).:-, Hardman testified with regard to Myers' remarks as follows : Mr. Myers began asking what the people of Massillon were doing about the strike, what the police department was able to do, and what the businessmen were doing about it, whether or not they were interested in keeping the steel plant there. And he went on to say that if the steel plant moved out that they would not need a chief of police and they would not need a mayor and would not need a city solicitor . . . Mr. Myers pointed out what a fine job the Chicago police had done. At Myers' request, Switter agreed to remove certain records and evacuate from the main office certain employees who had remained there since May 26. In the course of this discussion, Myers stated that there were some arms and ammunition in the main office, which could be locked up in the vault, but "they wouldn't do anybody any good there." He proposed, instead, to give them to Switter as a start toward some equipment to help the police department "in any situa- tion which might arise." Upon Switter's acceptance of this offer, Myers dictated a letter to Raleigh Frank, authorizing Frank, who was in charge of the main office, to turn the arms and ammunitions 21 Myers was referring to the incident which occurs ed on May 30, 1937 , in the vicinity of the respondent's plant in Chicago , Illinois, when the Chicago police dispersed a crowd of strikers and sympathizers ten of whom were lulled . See The Chicago Memorial Day Incident, Report ( No 46, Part 2) of the Committee on Education and Labor of the United States Senate, pursuant to S. Res 266 (74th Congress ), which makes the following findings with regard to this incident: We conclude that the consequences of the Memorial Day encounter were clearly avoidable by the police The action of the responsible authorities in setting the seal of their approval upon the conduct of the police not only fails to place responsibility where responsibility properly belongs but will invite the repetition of similar incidents in the future. 254 NATIONAL LABOR RELATIONS'P,O_ARD over to the Chief. "If you are going to turn this office over to Mr. Switter's protection," asked Lanham, "and moving out in the en- tirety, does that mead you are never going to' open up `this •office,'in Massillon again and the plant in Massillon." "I did not say that" replied Myers, "I said that when enough men- want to work. in Massillon, we will open." At 4 o'clock that afternoon, Switter placed the arms and animuni- tion with the office records in the- trunk of a car, drove through the picket lines and delivered the trunkload to the respondent' s agents. The arms and ammunition were not turned- over to the Chief- -until later that evening. At 8 p. m., shortly after dark, pursuant to arrange- ments made with Frank, Switter drove to the Brookside Country Club, 4 miles north of Massillon, where Frank and Lieutenant Adler of the respondent's police force, under cover of darkness, transferred to Switter three shot guns, six combination shells, three gas guns, and about 90 gas projectiles.21 The respondent's first objective .-was accomplished : the Massillon police department was now adequately equipped. On June 11, Carl Myers again sununoned the city officials to the Hotel Onesto in Canton, to discuss the question of supplying food to 16 guards and 4 maintenance men that had remained in the plant. Myers told the city officials and R. R. France, Chief Deputy Sheriff of Stark County, whom Myers had invited to sit in at the conference, that "they had about four or five days supply of food in the plant, that it was up to Switter and France to get food into the men, that the maintenance men were keeping the coke ovens hot, that if that battery of coke ovens was ruined it would be goodbye for Massillon, 23 On June 1, 1937, Federal Laboratories, Pittsburgh , Pennsylvania , manufacturers of tear and vomiting gas, had shipped to the Union Drawn Steel Company at Massillon the following material : 3 11/ " cal. riot guns @ $60.00------------------------------------- $ 180 30 li/a" cal long range projectiles C. N. (tear gas ) @ 7 50-------------- 225 90 11/2 cal long range projectiles D. M. (vomiting gas) @ 8 00---------- 720 12 1 % " cal . short range cai tridges D M. @ 6 00---------------------- 72 40 Grenades , Jumbo Triple Chaser D M 116 M @ 13 00---------------- 520 35 Grenades , Jumbo Spedeheat D M. 113 M @ 12 00-------------------- 420 1 Type "GB" gas mask--------------------------------------------- 25.50 Total ---------------------------------------------------- 2,159 50 Less 10% on item # 1 ------------------------------------ 18 00 Less 20% on items 2-3-4-5-6----------------------------- 391 40 409 40 . 1,750.10 10% excise tax on items 1-2-3 and 4 ------------------------------ 97.56 1,847.66 (Exhibit 134d-P, p. 45021; volume 14, Beatings before the Subcommittee of the Com- nuttee on Education and Labor, United States Senate, Seventy-fifth Congress, first session, pursuant to S. Res 266.) DECISIONS AND ORDERS 255 that they wouldn't ever start that plant, again." Switter promised to see;what he could do about getting the food into the plant. On the following day Myers called Switter on the telephone and angrily protested against an arrangement, to which Switter had agreed, by which one Marshall, a company official, was to enter the plant, accompanied by two pickets, to inspect certain insurance and relief records. After this telephone conversation, Switter informed D. W. Case that Myers was agitated by the refusal of the Union to permit Marshall to enter the plant without an escort of pickets. Case offered to have J. Lester of the Law and Order League telephone Myers' and "stall him off for a few days until we know what we are going to do.": Case then communicated with Lester, who telephoned to Canton and reported that Myers had "consented to give him (Switter) two or three clays to get himself into position, he wanted to, put himself (Myers) in shape to really take charge." On the following afternoon, June 13, at Case's request, Switter attended a meeting of the Law and Order League at the Chamber of Commerce. Switter was asked whether, if the money was raised, he would be willing to add the required number of police and purchase the extra equipment. Switter replied that he would not agree to this without the Mayor, but that if the Law and Order League would hold a further meeting, he would see to it that the Mayor was present. Switter testified, "They wanted to know how much it would cost to put on these police and how many we would need in order to maintain law and order and so on and how much equipment. They argued why the Mayor would not appoint the police and we threshed around for a couple of hours there and talked about the Monroe situation.... Monroe, Michigan . . . They, said they done a good job up there; they smashed the picket lines up there and they deputized enough police to do it . . . that turned out to be the main topic of conver- sation." On the next morning, Mayor Krier, Switter, Hardman, and Snyder, the safety director of Massillon, attended the meeting of the Law and Order League at the Charriber of Commerce. Switter testified, "They put the heat on the Mayor about appointing some special police .. . they wanted to know why he would not appoint more police . . . and he argued that the city was broke and did not not have the money to do it. And this group said they could raise the money . . . $8,000 to pay for 50 policemen for two weeks and the equipment considered necessary for the department ... and finally he agreed to appoint them (but) if he took on the 50 police that not one of them would go to the picket line . . . (This) they did not like . . . so well." After this meeting the League, which had raised approximately $1;200, returned the money to the businessmen who had donated it. 256 'NATIONAL LABOR RELATIONS' BOARD ` Later that afternoon, Mayor -Krier, Hardman, and Switter called on Myers at the Hotel Onesto in Canton and informed him that they could- not get the food into the plant. Switter was the spokesman : "We told him we wasn't going to, that we wasn't bringing any food down to them or to the pickets, either ... because we figured it, was not our job; it was over in the county and it was not up to us to get food down to them. We decided we wasn't going to have nothing to do with it .. . And then he (Myers) lit on us and told us that it was a funny thing that a little town like Monroe could build up a police department big enough to get their mill operating again and control the situation and it was damn funny we couldn't do some- thing. . . . He said that Massillon would be a prairie and it wouldn't need a mayor or safety director or any of us . . . lie said lie would take care of it ' himself that he wouldn't let those people starve." Hardman's testimony confirms and amplifies that of Switter : "We talked about what it meant to Massillon, if Massillon would lose that plant, and there was danger of its being lost . . . he said that if the plant was lost, the people of Massillon and the officials would be re- sponsible for losing it and he thought they were not taking any in- terest in it and in seeing that the plant was reopened." With this, the conference ended. On June 15, the respondent issued and distributed to its employees a statement signed by Tom M. Girdler which,, after reciting that many of its plants were reopening, added : Movements similar to that which resulted in opening the Mon- roe plant are spreading rapidly in other affected communities. Employees kept from their jobs by mobs of armed pickets many of whom have never worked for Republic and citizens outraged by this defiance of law and decency by the C. I. 0. are ''joining together to insist that law enforcement agencies compel the union to cease unlawful picketing. So, when you get all through, the present controversy sums up somewhat like this : Must Republic and its men submit to the communistic dictates and terrorism of the C. I.0.? If America is to remain a free country the answer is NO. After this statement, the Back-to-Work movement, which had, hitherto been relatively inactive, began its work in earnest. At first; Linckenhely testified, the Employee Representatives, assisted by Foremen Paul Rider and Chic Immell, merely circulated petitions from house' to house, asking their fellow employees to return to work; then began "the big move." On June 20 Linckenhely and the other Employee Representatives called on the members of the Law DECISIONS AND ORDERS 257 and Order League at the Chamber of Commerce for their assistance, and "they all talked about the Back-to-Work movement and how to find a way and means of trying to get the men back to work." On the followiiig day, June 21, led by Linckenhely, Fred Becker, a metallurgist in the employ of the respondent and Foremen Rider and Immell, a crowd of approximately 300 men appeared at City Hall. "They stormed the City Hall," testified Switter, ". . . they demanded a meeting with the Mayor and I . . . they was all up in the air about wanting to go back to work and wanting me to give them protection . . . they demanded to know why I refused to accept this several thousand dollars that . . . the Law and Order League promised to raise . . . for the special police." A committee, with Linckenhely and Rider as spokesmen, then met in the Safety Director's office with the Mayor, Switter and Hardman. Switter urged the committee not to rush matters or to become so excited. He told them the money which the Law and Order League had promised had never been raised, and stated, in answer to their further questions, that he would refuse to accept it if it were raised again because he "was not going to take on a gang of men to go down and break the picket lines," and that the picket lines were around the entrances to the plant beyond the jurisdiction of the city. After similar remarks by the Mayor and Hardman, the city offi- cials upon the demand of the committee addressed the rest of the group waiting in the lobby of City Hall. Switter told them "to hold themselves a few days to give the Mediation Board at Cleve- land . . . appointed by the President of the United States . . . a chance to do something before they started any back-to-work movement, and I told them then and there that I wasn't going to take any fifty greenhorn men and go down to the picket line under no consideration." 24 The -Mayor also referred to the President's Mediation Board, called upon the members of the group not to be hasty and stated that they were foolish to get excited, that the plants would probably open within a few days, and that there was no use in going down to the picket lines and having a battle and losing more time than they would lose by waiting. "Gentlemen," lie said, "remember if we start such things it won't be one-sided,-there will be bloodshed on both sides. Be patient a few days. . . . We don't want any trouble-or bloodshed down there." On the afternoon of the meeting with the Back-to-Work Commit- tee, the city officials drove to Canton to see Colonel Lawler, ob- server for the National Guard in the Massillon district, and, after discussing conditions in Canton, told him of the -demands, of the °4See Report of the Federal Steel Mediation Board to Secsetaily of Labor F?antes Perkin. 258 NATIONAL LABOR RELATIONS BOARD Law and Order League and the Back-to-Work movement' and re- quested him to come to Massillon to observe the situation there. Lawler replied that he himself and other National Guard observers had been to Massillon and ridden around the picket lines and that from his observations, Massillon was in fine condition, everything was pretty peaceful, as, peaceful as could be expected under strike conditions. Lawler and the city officials then discussed the activities of the pickets in carrying sticks and clubs, piling stones, and block- ing roads. Lawler dismissed these activities as "technical" and stated that it would be impossible to argue over every little technical point of the law when an emergency such as a strike situation arose. He ended by complimenting the city officials very highly on the way in which they had been handling the situation, and stated that they had it well in hand. The city officials then returned to Massillon to attend a meeting of the City Council, where Switter presented a request for additional police, on the ground that he was using some men in the strike zone that were needed in the city. The City Council rejected the request. "They was kind of cold on it," Switter testified. "We went into a meeting in the City Solicitor's office after the Council . . . a com- mittee meeting. They told me not to get hot and bothered about it, it was down in the county, and it was up to the sheriff." "They im- mediately jumped us," Hardman added, "about not having the funds to spend, and they said there was no reason for the Chief to get all excited about it; to begin with the plant was in the county and it was up to the sheriff to do something about it." Following the conference at City Hall on June 21, the Back-to-Work movement held a meeting, with about 450 present, at Willowdale, on June 22, and another meeting at Sippo Park with about 700 present, on June 23. Foremen Rider and Immell donated the use of their auto- mobiles to assist Linckenhely and the other Employee Representa- tives and to transport employees to these meetings. At the Willowdale meeting, Linckenhely testified, Rider addressed the crowd and "talked in regards to the way they were kept out of the plant and that so many men came to him, wanted to know if anything could be done about getting back to work . . . and spoke along the line (of) making 2rrangements to go back to work." At the Sippo Park meeting, Rider spoke "in regards to the same line of work ... of trying to urge the men along that wanted to get back to work." On the same day that Linckenhely had discussed "ways and means" at the Chamber of Commerce, the Law and Order League had re- tained Elson Wef]er and Franklin Maier as its attorneys. On June 25 these two attorneys, with Case, Lester, and other members of the League, came to City Hall and presented to the city officials a petition DECTSTO S AND ORDE RS 259 signed by a number of civic organizations and leading citizens of Massillon. After the petition was read aloud , Maier delivered a speech about the break-down of law and order, demanded that the city ap- point special police, citing its statutory authority to borrow money from banks for that purpose in an emergency , and accused the city officials of refusing to accept the money which the Law and Order League had raised. Maier also stated that Massillon was losing a pay roll of $40,000 a day and that "he had it straight that if something wasn't done the Republic was going to move their plant out of Massillon." Switter retorted that there had been no break-down in law enforce- ment, that he had received a number of "cock and bull statements, the same as they did ... of fellows being afraid to go home and being in fights, and being beaten up" but that only a few persons had signed affidavits and filed complaints , and that in every one of these cases an arrest had been made.=5 Switter further denied that the Law and Order League had ever raised any money for special police and called upon Case, who confirmed the Chief's statement. When Hardman spoke, he deprecated the whole petition as "a grandstand play," defied the Law and Order League to prove its assertion that dynamite was being transported through the streets, and denied that the general safety of the city was in peril . Hardman added that the reference in Maier's speech to the loss by Massillon of $40,000 a day "smoked the situation out" and showed that the League was interested, not in law aiicl order, but in protecting the businessmen. Finally, Switter and Mayor Krier agreed to appoint some more men as special police and the Law and Order League agreed to assist them to borrow money for this purpose from banks in Massillon. After the meeting, Switter, Case, and Hardman conducted two officers of the Ohio National Guard on a tour of the city to assist them in finding suitable quarters for the troops, if they were called in. The officers inspected a number of possible sites and finally se- lected an old lodging house owned by the city, which Case agreed to equip with refrigeration, gas, plumbing, and water connections, if it became necessary . Subsequently , such equipment was added, and the Chamber of Commerce received a bill for the cost, which at the time of the hearing it had not paid. At about five-thirty that afternoon, Gordon Hess, the respondent's assistant sales manager, telephoned Switter at Switter's home that he had received information from the respondent's Canton office that between five and ten thousand Akron rubber workers and "Can- ton C. I. O.'s" were on their way to invade Massillon, and demanded Switter testified that there had been tower arrests during the strike than in normal times. 134068-39--vol. ix--18 260 NATIONA ►. LABOR RE LATIONS 110ARD to know what the Chief was going to do. After insisting that "it sounded like more bull we had heard about other invasions," Swit- ter finally ; agreed to call out the police department. Hess stated that he "would have his gang over there to back (the Chief) up." When Switter arrived at City Hall, lie found a crowd of approxi- mately 200, including Foreman Rider of the Back-to-Work move; went and a number of the respondent's employees. Rider asked Switter to put in a three-alarm signal for the American Legion. When Switter disclaimed any such authority Rider went to the fire chief, who sounded the signal. The crowd in the iueantinie was steadily growing, until it reached a total of several thousand persons in a high state of excitement. At 7 o'clock, when Hardman arrived, "the atmosphere was very tense . . '. so tense that I did not park my car in the business district but drove ►t out into the residential dis- trict so that if there was any trouble the cal would not be damaged." In the Chief's office, a crowd, including Hess, Rider. and J. Lester of the Law and Order League, had congregated. Lester asked the Chief if he wanted him to go home and get a shot gun. Hess "grabbed the telephone and called up the Canton office of the Repub- lic Steel Company and wanted them to send somebody over to see the enthusiasm that Massillon was showing and .what a , crowd was backing up the Massillon gang to go back to work." After the call, Hess informed Switter that men from Republic Steel had already been over to see the crowd. Nevertheless Hess procured a newspaper i eporter to take pictures of the crowd, telling Switter and Hardman that "it would be great to have a picture showing the enthusiasm of the group . . . so they could show the Republic Steel there was still some interest in Massillon and sonic life there . . . showing-the the Republic Company (that) Massillon wanted the steel mill there." At about 10 o'clock the two National Guard officers who had been in Massillon earlier in the day came to City Hall and wanted to know the reason for such a crowd. When Swifter informed them that a mass invasion of Massillon was threatened, they replied that their intelligence division could find no trace of any mass movement on Massillon and "for God's sake to break up that crowd before something happened." Switter then addressed the crowd, thanking them for being willing to back him up on any invasion on the city, and asked them to disperse. Several members of the American Legion approached Switter and Hardman after the meeting and wanted to know why and on whose authority they had been called out, and stated that they did not want to get mixed up in any strike controversy. On June 27 or 28 Chief Switter asked the Civil Service Conunis- sion to certify to him a list of nien eligible for appointment as special DECISIONS .kND'OILDEIW 261 police. Of the seven certified, Switter chose six, rejecting the seventh because he was a former employee of the respondent, and choosing four other men of neutral feelings. The Massillon police force now had reached a total of 28. On June 29 the Back-to-Work Committee, through the assistance of Case, obtained the use of a room on the ground floor of the Union Bank Building as a place where they could set up tables and register the number of employees who wished to return to work. On the following day the Back-to-Work movement began registration. When crowds formed and the police interfered, dispersing them, Lincken- hely, Rider, and Case called upon Switter in protest. Case especially urged upon the Chief that a large majority of men, not concerned with the strike, wanted to put themselves on record as desiring to go back to work, "so that there could be some definite assurance given the Re public that if Republic wanted to open the plant, that it could be opened, there was men enough to operate." Switter informed them that he had no objection to their registering employees, but stated that he did not think it was a good idea to use the 'ground floor. Case then offered the Back-to-Work C'onnnittee the use of the offices and facilities of the Chamber of Commerce on the eighth floor of the Ohio Mer- chants Bank Building, where registration continued from June 30 until July 3: Two 'full-page advertisements were published in the Massillon Independent, over the name of the Back-to-Work Commit- tee, announcing the place and purpose of its work. By July 3, the respondent claimed, over 2,200 employees had signed the above- described petitions. This was "the big move" for which the Back-to-Work movement claimed credit. Linckenliely testified, however, that the Law and Order League had agreed to pay for $75,000 zyVorth of insurance which was to have been taken out to cover property damage to the Union Bank Building that the League had paid for the inimeographing of the petitions; that the League had furnished without charge all the desks and facilities for the registration of employees; and that the League had paid approximately $100 for the advertisements of the Back-to-Work Movement in the Massillon Independent, although by agreement between the Independent and the Law and Order League, nothing in the advertisements indicated' that they had been paid for by the League. Although the question of whether the Back-to-Work Movement represented a majority of the employees of the respondent's Massillon Works is not in issue in this proceeding it is worth noting that among the alleged 2,200 signatures are those of a large number of foremen, superintendents, and office workers, together with the signatures of a number of individuals who signed the petition more than once. Fur-- 262 NATIONAL LABOR RELATIONS BOARD thermore, the record•,is.plaimthat supervisory officials, of the respond- ent directly participated in circulating and obtaining signatures to this petition. Thus William Norris, a millwright leader, testified that his general foreman, one Shoemaker, telephoned him to go to the Chamber of Commerce and sign the ,Back-to-Work petition. Judson Moody testified that his foreman, Ray Henry, called at his house and asked him whether he had signed the Back-to-Work petition. Wilbur Larker, an office employee, testified that he signed the Back-to-Work petition while working in the temporary offices of the respondent, in Canton, and that he saw other employees sign the petition there. Nick Linckenhely testified in detail concerning the activities of Foremen Rider and Immell as members of the Back-to-Work committee. Swit- ter testified that Gordon Hess referred to the Back-to-Work movement as his "gang" and sent them en masse to City Hall to back tip the Chief on the fictitious invasion of Massillon. Thus from beginning to end, the "big move" of the Back-to-Wor'k Committee was in reality conducted from behind the scenes by the respondent and the Law and Order League. Like the discredited Employees' Representative Association, of which it was merely a con- tinuation, the Back-to-Work Committee was the creature of the respondent. In the meantime, on the night of July 1, Governor Davey lit id ordered General Marlin and four companies of the Ohio National Guard into Massillon. Despite previous arrangements to house the troops in the city lodging -house, two companies were quartered in the main office of the Massillon Works and the other two in a school house overlooking the respondent's plant. On July 2 the Massillon Works and the plant of the Union Drawn Steel Company reopened. On the same morning, at the request of Creighton, general manager of the Union Drawn Steel Company, Switter supplied city police in two cruising cars to escort the company guards and a quantity of arms, ammunition, and tear and vomiting gas, into the plant. One of the company guards furnished Officer Moore with a• few gas candles or jumpers, which were kept in the police cruiser car. Though the plants were open, the strike was still effective. The respondent was preparing for the day when arms and ammunition would be needed. On July 2, 3, and 4, and thereafter upon the solicitation of superin- tendents and foremen, who telephoned to the men and visited them at their homes, a number of employees returned to work. Although the record does not indicate the exact number of this group,2° it is evi- dent that, even under the guns of the National Guard, in the fifth ^ There is some testimony that approximately 2,000 employees returned to work. It is not clear whether this figure included the employees,of the Union Drawn Steel Company. DECISIONS AND ORDERS 263 week of the strike, despite the campaign of the Law and Order League and the Back-to-Work Committee, and despite the continued solicita- tion of foremen and superintendents, a large number of men did not return to work but remained on strike. On July 5 General Marlin called a meeting of the city'oflicia]s, told them that the troops were not going to be there forever, and stated that if they wanted the steel mill in Massillon, they would have to be prepared to take over the situation when the troops left. The Mas- sillon Works, he warned them, was the last plant to reopen, and if they- did not keep it open they would lose it. Marlin suggested deputizing and arming a group of men from the respondent's plant to be known as "home guards" who on their own time would patrol their respective precincts after work. No definite plan, however, was agreed upon at this meeting. On the next afternoon a delegation from the Law and Order League, the Back-to-Work Committee, and the respondent called upon the city officials at City Hall to urge upon the Chief the necessity of appointing special police and home guards. The composition of this delegation reveals the close relationship between the organiza- tions. Among those present were R. E. Peppard, superintendent of the billet shops, Perry Angstadt, the respondent's chief accountant, and one Blantz. These three men had been Company Representatives under the Plan. Case and Quigley were present on behalf of the Law and Order League. In addition there was also present Fred Becker, the metallurgist who had been a member of the Back-to-Work Committee since its inception. According to the testimony of Case, however, Becker, together with Peppard and Angstadt, represented the respondent. Representatives of all three organizations joined in the discussion. Peppard, Angstadt, and Becker asked the Chief to select men fcorn a list of names of 66 of the respondent's employees, which they sub- mitted, to be appointed as special police to act under Switter's juris- diction and to be paid by the city. Hardman and Switter examined this list, recognized the names of a number of men they knew, and rejected most of them as being too excitable to act as police officers during the strike emergency. The delegation then requested that the Chief deputize a group of the respondent's employees as home guards and Peppard offered to furnish a further list of names. To this proposal both Switter and Hardman objected, as Case testified, on the ground that "it was probably undesirable to use anybody connected with Republic al- though they were men connected with the Back-to-Work movement. ... Hardman said if they did anything like that they should put some C. I. O. men on." The delegation argued that Canton had 264 NATIONAL LABOR RELATIONS BOARD deputized the respondent's employees as home guards and that Mas- sillon should., follow, suit. To prove, this, Angstadtr'telephoxied' they respond`ent's office in Canton and then informed the city officials that "the city solicitor of Canton was down in the plant then swear- ing them in." Hardman and Switter, nevertheless, refused to accede to the delegation's request. At this point there appears, most casually, upon the scene the principal character in the tragedy of bloodshed and violence that was to be enacted on the night of July 11. "During the meeting," testified Case, "Switter made the statement ... of his inability to get any policemen who were competent and I made the sugges- tion to him. . . . `How do you stand with Captain Curley or Major Curley?' He said `All right.' `Well,' I said, `I understand from one or two talks I had with Major Curley that there is a method by which you could get the type of people and kind of people that you, ,want and that perhaps, he,would,,advise with ^ you, Off the method:' And he says, `Where is Major Curley?"' The testimony is in conflict as to whether Switter then sent for Curley, or whether Curley had already interviewed Switter earlier in the day without any previous communication from Switter. There is no dispute, however, as to the fact that Case suggested Curley to the Chief as the man who would solve the problem of increasing the Massillon police department, or that on July 6 Curley called upon Chief Switter and offered his assistance in helping to secure men for the police force. Case described Curley as a disinterested, public-spirited citizen, "a former Army officer . . . 'who had organized two companies in Massillon ... for the world war, a very competent man, along the lines of developing organization, also, a very influential mem- ber of the . . . American Legion." To this description of him- self, Curley added that he had served in the Spanish American War as a private, in the World War as a captain and major, and was now retired with the rank of major. A disingenuous witness, whose testimony in many respects is contradicted by the testimony of other witnesses both for the Board and the respondent, and whose account of many of the events in which he participated is inherently im- probable, he nevertheless furnished testimony which is indispensable to an understanding of the case. On the evening of July 6 General Marlin, who had attended a meeting on the previous evening of the Law and Order League at J. Lester's home, called on Chief Switter. "He wanted to know why we were backing down and why we had not shown some signs of life in getting this group of . . . mill men they (Peppard, Angstadt, and Becker) certified to me . . . sworn in and get- ting ready to take over." Switter replied that he was "trying to get DECISIONS AND ORDERS 265. neutral men ... and it was slow picking." "This is no time- to pick up neutral men," Marlin answered, "you have to be ready to take this situation over . . . I demand you have some plan to certify to me by tomorrow noon so I can report to the Governor."` When Switter failed to agree with this, the General left in a -huff. Finally, on the following morning, the leading spirits in the Law and Order League descended upon the city officials. "They demanded we do something about this situation ... why we had been passing the buck and why we refused to take the special police. They just climbed all over us and demanded some action be taken and threatened to impeach us, talked about getting rid of the Mayor. They talked about getting rid of the city solicitor and everybody else, and they wanted something done, wanted some action . . (They) said we could get plenty of men there . . . Republic Steel men ... and I toldIl them that I didn't want those men, that if I was going to have any speciahpolice, I wanted to have men on neutral sides ,that had.no argu-, ment in the strike." Q. (By Mr. Hunt.) What was the reply? A. They said the steel mill was at stake, the City of Massillon was at stake, as far as industry goes, and we would lose the biggest of our industry. Q. Did they ask you at this meeting if you would accept the assistance of Captain Curley in picking nien to acid to your police force? A. Yes they said they knew where to get men and he could help. pick the men. Q. Did you finally agree to take the men right away? A. No, it got pretty hot in there for the next hour or so. Q. What do you mean it got pretty hot? A. Why they were climbing on us to take on these men and, wanting a showdown and wanting to know why and fighting with us and asking all kinds of things and saying all kinds of things against us, why we had done the way we did .. . and why we would not consent to it. Q. Chief Switter, I have asked you so far merely a, few ques- tions about isolated meetings and conversations in the strike situ- ation but weren't you subject to constant pressure throughout the day and night ... ? A. I did, I worked sixteen, eighteen and twenty hours a day ever since the strike broke, and one time none of the department went home for four days and nights, four nights, only excepting- a few hours sleep in the cruising car and I slept on the office- floor and the whole department the same way, even the new rookies. 266 NATION- U, L:a1:c►►t ttEL-v'r1ONs J,4).^Tt ►> Q. So you were pretty tired at the meeting of this Law aimd Order Committee on July 7th? A. We were pretty well pounded down by that time. Q. By whom? A. The law and order and the back-to-work movement. Q. What did you finally tell the group that you would do about putting on these extra police? - A. I - told there that was up to the Mayor and - the chief executive of the city to make that decision and they got after the old boy pretty hot and he kind of weakened for the time being and asked me again what we should do. Then they jumped on me and I told them I would give them the works, I would give them what they wanted, I would appoint- . the nvliole damn outfit,, give them all the guns they wanted and let them go to it, it is coming , and God damn let them, have it . . Q. You could see what was coming? A. That there was going to be a battle and bloodshed all around as soon as they put guns in those rookies' hands and we had been fighting against bloodshed all the time. With this agreement reached, the Law and Order League invited the city officials to attend a luncheon that noon to which Case, at 'Curley's request , had also invited a score of the managers of Massil- lon's leading industries . Case opened the business of the meeting by announcing that Major Curley had been designated by the Mayor and -Chief Switter to make a statement to them about some cooperation that the city very badly needed at that time . Curley then addressed the meeting. He stated that he had consented to render such assist- ance as he could to the city for the purpose of developing a special police force, totaling 66 men , which would restore law and order in Massillon; that there were a number of men employed in industries who were not connected with the strike , who he felt would make good special policemen ; and that if any of those present had any available men, "we would like to have them sent to us immediately ." After this a discussion arose about home guards . Curley stated that he "did not believe that was the need in Massillon, he believed that what they wanted was some special police here for the purpose, who would be,deputized and be under the direction of the Chief." The last speaker was Carl Myers. "He lit on the Mayor and the city solicitor and I," testified Switter, "with all fours . . . He said lie had not thought a hell of a lot of us until now and lie thought we was beginning to get on the right track now and go along and do something." "He was glad to see the Mayor and Chief had wakened -lip ...," testified Hardman, "he roasted them pretty heavily .. . DECISIONS AND ORDEUS 267 he felt they had not been doing their duty . . . He said he loved Massillon and loved the Republic Steel Corporation . . . He dwelt on the fact that the Mayor and Chief had not enforced the law, that they had been asleep and not doing their duty." "The only thing- I ever recall," added Case, upon cross-examination, "that Mr. Myers said at that meeting was somebody in the meeting insisted on the necessity of home guards, Mr. Myers made the statement that he felt the whole matter could be safely left with Major Curley, if he didn't need home guards, that was all up to him, the whole situation could' rest.,with him, he felt." 27 After this meeting, the Law and Order League, its work accom- plished;,took no further part in the events in Massillon. We pause for a moment at this point to reexamine the role of the Law and Order League and the respondent's relations to it. Almost from the beginning of the strike, the respondent had made it clear to the businessmen and officials of Massillon that the reten- tion of the Massillon Works, and the very existence of Massillon, de- pended directly upon their success in breaking the strike. Thus, on June 9, Carl Myers had asked Lanham what the businessmen were' doing about the strike, whether or not they were interested in keep- ing the steel plant there, and had threatened Lanham and the city officials that unless Massillon furnished the same kind of protection the Chicago police had furnished, the respondent would move out, and Massillon would be a junction, without even a first-class post office.28 On June 25, the day the Law and Order League presented its petition to the city officials at City Hal], Franklin Maier, attorney for the League, informed Hardman that he "had it straight" that unless something was done, the Republic was going to move their, plant out of Massillon. At the conference with Chief Switter on the morning of July 7, the members of the League had urged in desperation that the steel mill was at stake, the City of Massillon was at stake, and that the business community would lose its biggest industry. The record is replete with testimony that Carl Myers, on numerous occasions, had stated to the city officials that if they did not get the mills open, Massillon would be "a prairie in the junction of route 21 and route 30," that if the plant were lost, the people of Massillon and the city officials would be responsible for losing it, that without the mills, Massillon would need neither a Mayor nor a Chief of Police nor a City Solicitor. General Marlin,_ who had been in communication with the members of the League and whose troops were quartered in the respondent's main office, pointedly informed the city officials that it was not the proper time 17 Italics supplied. 28 On or about June 9, Lanham , Poe, and other members of the League also tele- phoned to Myers when they beard that "they were going to close up the mill, they were not going to open it up." 268 NATIONAL LABOR RELATIONS BOARD to select neutral men as special police, that if they wanted the steel mill in Massillon, they would have to be prepared to take over the situation when the -troops left and that if they did .not keep' the mill -open they would lose it. Under this threat of economic disaster, the Law and Order League, while publicly maintaining that its purpose was to establish law and order,- privately set to work with all its power to assist the respond- =ent to break the strike and: to reopen the plants. When, on June 15, the respondent, over the signature of Girdler, issued its state- ment that "movements similar to that which resulted in the opening 'of the Monroe plant are spreading rapidly to other affected com- -munities," the respondent supplied the League with its program and its propaganda. We have noted above how the Law and Order League assisted and- subsidized the Back-to-Work Committee in many of its activities. Becker, Linckenhely and other members of that Committee conferred -daily with Lester at his home and with Case at the Chamber of Commerce with regard to "the big move." So great was the League's anxiety to retain in Massillon the respondent's pay roll of $40,000 a ,day, that its members contributed within a few days $1,200 toward .a fund of some $8,200 to be raised to pay for special police and police equipment. Its concern for the establishment of law and order may be measured by the fact that the $1,200 was returned to the members when it was learned that the city officials would not use the special police to break the picket lines. Lester and Lanham frequently acted as go-bettveens between Myers and the city offi- cials. Before the National Guard arrived, Case undertook the -expense involved in extensive alterations of the municipal lodging house. When the National Guard was preparing to leave, the mem- bers of the League resorted to threats of impeachment against the scity officials unless they agreed to hire the respondent's employees as special police. Not the least of the League's functions was to assist the respondent in whipping tip public opinion against the strikers and the Union by spreading unfounded statements that the C. I. O. was marching -to invade Massillon, that explosives were being transported about .the city, and that the strikers had instituted a reign of terror, in which the city authorities were powerless. Finally, Case and other members of the League, together with the respondent, were successful in having Major Curley, allegedly -a disinterested public spirited citizen of Massillon, placed in a posi- tion of authority in the Massillon police department, with results which are described below. In sum, what the respondent was un- willing or unable to do openly, it accomplished in part through the businessmen of Massillon, acting under the guise of establishing jaw DECISIONS AND ORD I S 269 and order . , Under the stimulus of the respondent 's threats to aban- don its Massillon plant the League became the respondent's accomplice. At 3 o'clock on the afternoon of July 7,, a crowd of 60 or 70 •nien iippeared at police headquarters, a good many of whom Switter recognized as employees of the respondent . Curley and Switter lined the men up and at Curley's suggestion all those under 30 years of age and all married men with families were asked to step forward. After these were dismissed , a further selection was made from the remainder, and 40 men were finally chosen as special police officers. Before the men were sworn in, Switter testified , there was a slight delay. "The bondsman did not show up and Curley had to contact Gordon Hess and lie told him to arrange for getting the bondsmen to come over from Canton to bond the group of men . . . that is who Captain Curley said he was talking to, wanted to speed them tip so they could swear them in." In the light of subsequent events, the method by which these special police officers were bonded deserves careful examination. On July 5, Thomas R. Smith, a member of the insurance firm of Duerr, Smith, Lane Company of Canton , received a telephone call from Kenneth Cope, an attorney whose firm represented the respondent in this and other proceedings, to come to the respondent's offices in Canton and sign some bonds for special policemen . At first Smith refused on the ground that he was forbidden to sign such bonds during a strike, unless the respondent were willing to indemnify the Fidelity and Casualty Company of New York, the bonding company which Smith represented. Later Cope stated that the indemnity agree- ment could be arranged, and, accompanied by Assistant City Solici- tor McCarroll of Canton , Smith drove to the Canton plant of the respondent. There W. C. Gubbins, the respondent's assistant treas- urer, and Speis, its chief clerk, were engaged in selecting the men to be bonded from a group of employees . After certain employees had been dismissed as being "too hot-headed ," the remainder, 56 in number, signed application forms and Smith signed, sealed, and executed public official bonds upon which the names of the employees had already been typed . Each bond bound the employee as princi- pal. and the Fidelity and Casualty Company of New York as surety, to the City of Canton in the penal sum of $500, and was conditioned upon the faithful performance of duty by the employee as private police officer of the City of Canton. On the back of each signed application form, Gubbins wrote "Republic Steel Corporation by W. C. Gubbins , assistant treasurer," and agreed that the respondent would indemnify the Fidelity Company for any loss that company might sustain as a result of having acted as surety on the bonds. Assistant City Solicitor McCarroll then swore in the respondent's 56 employees as private police officers of the City of Canton. Of 270 NATIONAL LABOR RELATIONS BOARD these 56, at least two were .Employee Representatives, and two were supervisory officials at the, Canton Works. On the afternoon of July 7, Attorney David Day, of counsel for the respondent, telephoned Duerr, Smith, Lane Company and asked Smith to go to Massillon to sign more special police bonds. Day, Gubbins, and Smith then drove to City Hall in Massillon, where Day inquired of the desk sergeant in the police department for Cap- tain Curley. Curley took the group to Switter's office and intro- duced them to the Chief who greeted them curtly, and sent them to another room where the men whom Curley had selected were wait- ing to be bonded. Smith testified that none of the men, were re- jected, as they had been in Canton, and that the final selection ha-CL been made before they came to him. Hardman, Gubbins, and Cur- ley, sitting at a table, assisted Smith in executing the bonds. Gub- bins, who had been handed a list, apparently by Curley, of the men to be ' bonded, inquired of each ` applicant whether' 'he was' an em- ployee of the respondent and, if so, his badge number. Hardman then administered the oath of office to the entire group as special police officers of the City of Massillon. Under date of July 6, Smith forwarded to the respondent an item- ized bill for $830, covering special police bonds, at a pi emium of $10 each, issued for 56 Canton employees and 27 Massillon employees of the respondent.211 On July,13, Gubbins, for the respondent, signed a contract of indemnity whereby the respondent, as indemnitor, agreed inter alia to become surety for the Fidelity Company on both sets of public-official bonds. Of the 27 Massillon employees thus bonded by the respondent, one William F. Henderson, was a foreman, and another, Maurice Schnierly, was an Employee Representative at Canton. In addition to these 27, 13 other men were appointed, making a total of 40 special police officers. Of the 40, the names of 19 had been submitted to the Chief by Peppard, Becker, and Angstadt on the morning of July 7; 24 had signed the Back-to-Work petition; and at least 32 were employees of the respondent. From these facts it seems clear that Curley knew in advance the employees whom the respondent wished selected as special police officers and that in their selection he acted as the respondent's agent. Curley, however, denied that anybody connected with the respond- ent had anything to do with his activities, and denied that he knew the names of the 60 or 70 men who came to City Hall on July 7, or what plants they came from or whether they were employees of the respondent. Curley also denied that he knew that bonds were issued for the Massillon employees who were sworn in, or that he 21 Smith testified that the bonding of the police occurred in Canton on July 5 and in' Massillon on July 6. All other witnesses fixed the date of the bonding in Masillon as July 7. DECISIONS AND ORDERS' 271 had telephoned Gordon Hess to arrange for the bondsmen to come from Canton, but admitted that lie had spoken to J. Lester about it. These denials are not convincing. On the morning of July 7, the Law and Order League had demanded and the city officials had agreed that the respondent's employees would be appointed as special policemen, and Curley was in constant touch with Case and other members of the League. At the luncheon meeting of the League on July t, Curley had rejected the proposal that home guards be ap- pointed, and Carl Myers had approved his action, adding, according to the testimony of the respondent's own witness, "the whole matter could be safely left with Major Curley . . . the whole situation could rest with him." This was tantamount to a ratification of Curley's authority. In addition, before the bonds were signed for the employees in Massillon, Curley either telephoned to Gordon Hess, or spoke to J. Lester about telephoning to the respondent at Cali- ton; in order to hurry the bondsmen to Massillon. Whichever version of this incident we accept, it is apparent that Curley knew; at least after the men had been selected, that they were to be bonder( by the respondent. The unconiradicted testimony of Smith, the bonding agent who came to Massillon as a result, of a telephone message from the respondent; confirms this conclusion. Smith testi- fied not only that "Curley had mentioned to (Switte') what came for, to bond the special policemen," but that Curley was sit- ting in the very room where the men were bonded and where Gub- bills was writing clown their badge numbers. Furthermore, although in Canton Gubbins had weeded out certain employees before they were bonded, iii' Massillon he made no such selection and ratified Curley's choice without question. From these and other facts, me conclude that Curley's activities were conducted with the full knowledge and approval of the respondent, that Curley knew in advance and carried out the respondent's wishes, and that the manner in which he selected at least 32 of the respondent's employees of a total of 40 special police was designed to conceal the fact that, while apparently selecting melt most suitable for the position, lie was in reality choosing men whom the respondent had already designated.3" 601ttached to the bill, dated July 6. a+hich Smith seat to the respondent coxeung special police bonds for 56 employees at Canton and 27 employees at Massillon, was an attached schedule of the names of these employees together with the report numbers of their bonds With respect to this bill and attached schedule , Smith testified that it was "dated July 6th and it was made in our office at that time, and on the back of this we have attached a list of names arranged alphabetically " The employees named in the schedule were not sworn in until the following day, July 7. This confirms the conclusion that the respondent had chosen the employees to be appointed as special police officers before Curley had lined the men up at City Hall for his "selection " Despite the fact that South erroneously described the bonding as having occurred on July 6, we are in- clined to considet the bill and attached schedule, which were , contemporaneously made, in the regular course of business, as bettea evidence than oral testimony , given some weeks later 272 NA TIONAL LABO1 RELATIONS r(OATN On July . 8' and. 9, ,the National, Guard moved out of Massillon and the police department , thus augmented , assumed control . Although there were no city funds to purchase equipment , Switter ordered 30 new sidearms and four dozen new might sticks . By Sunday, July 11, all the special police were armed. "The breakdown of law and order in the city !" observed Switter on the witness stand. "Not one of these new men were put out where these homes were supposed to have had windows broken out of and men taken out and attacked . The whole outfit was concentrated in the strike zone." At 2 o'clock on the afternoon of July 11, Switter and Curley drove to the Massillon Works to watch the behavior of the pickets when the afternoon shift of workers entered the plant and the morning shift came out. "The afternoon (shift) went along in fine," testified Switter, "no trouble at all. " Curley and Switter then drove to a; mass meeting of the Union at Oak Knoll Park , observed the conduct of the crowd, and made ' several trips to the Massillon Works and the plant of the Union Drawn Steel Company to see that the special police officers were at their posts. At about 5 o'clock according to, Switter's testimony , Curley remarked , "'I will go see that the night shift changes all right, you better get away and get some rest and recreation. You been at it too long. It is getting you down.' I said, `That is fine, thanks old boy. If .you will look after it, I ani gone."' With this, Switter left Curley , went home to supper, and at 9: 30 that evening drove out into the country with some friends for it few beers and lunch . On the same day, in the belief that the city was quiet, Hardman had left Massillon to visit his wife who was away on a vacation. Nothing was said, testified Switter, about placing Curley in charge of the police department. "Things were quiet and they were having this meeting and it didn't look like anything was going to happen- It didn't look like there was going to be anything. It went off on the afternoon shift all right and we did not ' figure anything was going to happen that night." Q. (By Mr. Donald Wakefield Smith.) Is it fair to say that you didn't regard this as a matter of delegation of authority to. Captain Curley ? You merely thought nothing would happen and he would be around there? A. That is right. He was going to see the new rookies went on the post standing in front of C. 1. O. headquarters and there was a viaduct and a couple of men to be posted under . the other end of ;the viaduct,' and 'a' couple of other roads supposed to be blocked so no traffic would cone through. And that is the way it was supposed to be handled 'and he 'was just going to see the men were on their posts and what be could do .. . DECISIONS AND ORDERS 273: Nevertheless, as soon as Switter had left the city, Curley took,com-, plete command of the police force, and countermanded all of Switter's- previous orders. 5. The incident at C. I. O. headquarters At approximately 11 o'clock on the night of July 11, three persons- received fatal injuries and an undetermined number were injured by gunfire and gas fumes, when special and regular police officers, under the command of Major Curley, dispersed a crowd of strikers and strike sympathizers at C. I. O. headquarters on Cleveland Avenue near the respondent's district office, in the City of Massillon. All, those, killed or injured were strikers, strike sympathizers or by- standers. None of the police sustained any injuries. Witnesses for the Board claimed that Curley in Switter's absence led the special and regular police in a murderous and unprovoked assault on C. 1. O. headquarters, pursuant to a plan to destroy the Union and break the strike. The respondent sought to show that the strikers had assembled at the C. I. O. headquarters with a precon- ceived plan to rush the police, enter the mill, and remove 'the em- ployees who had returned to work. In order to understand the causes of and the responsibility for this encounter, it is necessary first to examine the circumstances immediately prior to its occurrence. ' As noted above, as soon as Switter had left the city Curley, without authority, took command of the police department. He testified that at about' 9:30 p. in., when he walked over to City Hall; "the boys -were getting ready to go on the 10 o'clock shift. They all came in and reported for duty. A lot of rumors flying around there that in the afternoon meeting which they had at Oak Knoll Park and they were going to come down and clean up the Police Department. I said `Hell,':I have heard that so often . . .' 31 They all came to me-I didn't know-for orders. They said `What will we take along?' I said `Hell there aint anything to take along- . . . There is some gas in back of the Sergeant's desk there. Some gas guns.' " To this elaborate expression of unconcern Curley added, however, that the police officers took "everything we had . . . tear gas . . . five tear gas guns . . . and a submachine gun." Officer William Fellabom, a former machine gunner who served in the World War in the company which Curley organized, testified that at 9: 30 p. in., when he reported to the police station, "Curley was in there and as soon as he saw me he says `Bill, you better take your machine gun along tonight. They expect a lot of trouble, so I takes the machine gun and some ammuni- "The Trial Examiner granted a motion by the Board's attorney that this latter re- mark be ', stricken from the record . In our,view of the evidence, the remark is relevant as showing the unimportance which Curley attached to the, rumor. We hereby overrule the ruling of the Trial Examiner , 274 NATIONAL L BOR RELATI ONS' 1.0.v1U) tion there we had and they hustled us right clown there."' From" the testimony of other witnesses, it is clear that the police also took the 90 gas projectiles, six combination shells, and other equipment which Lieutenant Adler of the respondent's police and Raleigh Frank had transferred to Switter for the police department at the Brookside Country Cllib on the night of June 9. Officer Ickes, a witness for the respondent, testified that when he reported for duty at 9:45 p. m , Curley countermanded Switter's order of the previous evening assigning Ickes to the plant of the Union Drawn Steel Company, and ordered Ickes and Special Officer Kelleher, one of the respondent's employees, to a post on Cleveland Avenue, 50 feet south of C. I. O. headquarters. The usual num- ber of police assigned to this post was -six. Curley admitted that after 10 p. in. the number was increased to 20, explained that he had .countermanded Switter's order with reference to Ickes only because the plant of the Union Drawn Steel Company was not working that night, but denied that he had assigned more than two or three additional police to Cleveland Avenue.32 From the testimony of ,other witnesses for the respondent, it is clear that Curley's testimony is not to' be credited. Officer Fellabom testified that "before Ave left the station Curley says `I will be over there, close to where the line is or close to the C. I. O. headquarters . . . I waist to see you over there . . . You fellows will have to be stationed over there until things quiet down." Officer Kraft testified that Curley had sent ,eight or nine police officers to C. I. O. headquarters that evening in addition to those already assigned. Furthermore, Switter testified that when he returned to Massillon on the next morning, Captain Curley informed him that, "he had raised the normal guard which was usually stationed about 50 feet in front of the strike headquarters from six men to 20 men." In view of this testimony, we conclude that Curley, upon his own authority, at approximately 10 p. m. armed the police with all the weapons in the possession of the police department, including the gas donated by the respondent, and or- dered the normal guard on Cleveland Avenue near C. I. O. head- quarters raised from six to 20 men. Of the 20, the record indicates that at least eight were employees of the respondent, including Fore- man William Henderson. As already indicated, Curley, in justification for his having arliied the police, offered the rumor that in their afternoon meeting at Oak Knoll Park, the strikers had threatened to "come down and clean up the police department." It is clear that nothing occurred at this meeting to warrant the rumor. Edward Davies, an employee of the "Curley's testimony on this point is contused At times, lie appeared to adnut having assigned all` the additional police to Cleveland Ave . at one point he claimed that Officer Ickes was "about the only one he assigned " DECISIONS AND ORDERS 275 First Savings and Loan Company, testified for the respondent that he attended this meeting, that he heard Joe Morton speak, that "Morton made different statements in regard to the men that they should fight on, that they are bound to win the strike :.. that they should, be down that night at 11 o'clock on the picket line." On cross-examination, Davies admitted that the meeting ' was perfectly peaceful, and that the general tenor of Morton's speech was merely such that "if I were . .. 'on the striking side, (it) would help' me to feel I was justified 'and I wanted to continue . . . out on strike." Moreover, Switter testified that before he left Massillon at 9: 30 p. in. on July 11, he had heard no rumors of any kind with regard to threatened activities of the strikers. Finally, even Curley him- self attached no importance to the rumor. He admitted that between July 7, when the special police were sworn in, and July 11, before he assigned additional police to Cleveland Avenue, there had been a decrease in the number of arrests and the amount of difficulty, that on the afternoon of July 11, when Switter left Massillon , "everything seemed to be all right," and that on the evening of July 11 he did not expect any trouble. We are therefore unable to believe the explanation offered by Curley for his orders. At approximately 10 o'clock, the 20 officers reported to their posts at or near Cleveland Avenue. In order to understand the events which took place after their arrival, a brief description of the locality is necessary. C. I. O. headquarters is it rectangular two-story wooden frame building, with three front doors and three windows, facing west on Cleveland Avenue. 'Three steps, each about a foot high, lead up to the front doors. The union occupies the lower floor of the build- ing, and had established a soup kitchen there to feed the pickets. The second story is occupied by the family of Wilbert Coleman, a non-striker who appeared as a witness for the respondent. About 100 yards to the southwest of this building lies the respondent's dis- trict or main office. About 350 yards to the, southeast, on Oberlin' Avenue, there is a viaduct over which a number of employees drive to work. Gate No. 1, the entrance to the sheet division of the re- spondent's plant, is located on Oberlin Avenue, approximately 175 yards west of the viaduct and about the same distance southeast of C. I. O. headquarters. Immediately upon their arrival at C. I. O. headquarters, the police, pursuant to Curley's orders, prepared for trouble. Officer Ickes testi- fied that from the time that he arrived on the scene, between 9:45 and 10 p. m., he expected trouble because otherwise "I would not have been sent down there." At that time, he testified, he procured from the police car a tear,-gas gun and nine projectiles, loaded the gun, and stationed himself. across the street - from C. I. O. headquarters. The 134068-39-vol. ix-19 276 NATIONAL LABOR RELATIONS BOARD other special and regular police, officers, all armed with police clubs, revolvers, shotguns or gas equipment, took posts .on Cleveland Ave- nue, between 50 and 100 feet south of C. I. O. headquarters. Curley directed Officer Fellabom to station himself, with his sub- machine gun, directly across the street from C. I. O. headquarters. Officer Fellabom testified : As Curley said when I tools the gun, he says "Bill what kuid of ammunition have you got in there" .... I said "Nothing, but bird shot and, paper shells." He said "That is • right; that is right ; use them in there, Bill." 33 Q. What time did,he tell you that? A. Right after I got out of the car when we landed there." Q. What time was that? A. A little after ten; about 10 or 15 minutes after ten. Q. When did Captain Curley tell you that he expected trouble? A. At police headquarters. Q. What time ,was that? A. Ten minutes after ten. Q. What time was that? A. Ten minutes to 10. At another point, Fellabom testified : Q. Now when you got there did you see any other officers there? A. Oh, there was at least 16 or 20 . . . Curley ... , told me to get over on the left hand side, kind of southwest of where we stopped. Q. Where did you go then .. . A. Over to the left hand side, that would be the west side of the street, up close to this tile building that is right pretty near straight across from C. I. O. headquarters. It thus appears that at least three quarters of an hour before any shooting or any violence whatsoever occurred at C. I. O. headquar- ters, Curley directed Fellabom, the former army machine gunner, to 'take a post directly across from C. I. O. 'headquarters and to use his submachine gun. We turn next to a consideration of the number and attitude-of the strikers and strike sympathizers who congregated at union headquar- ters that night. John Veto, a striker, who during the strike made it a practice to go to C. I: O. headquarters every evening, testified that at 8 p., m. on 33 With respect to the ammunition with which the submachine gun was equipped, Curley testified that it always had three magazines of "regular 45 bullets" and three of "45 bird shot . . . a paper shell on the end of it with about nine little shot In them." 34 Italics supplied. DECISIONS AND ORDERS 277 July 11, "when I reached there, they were playing music and the people were dancing on the street and I danced too, and we had a lot of fun. Then the rain came and a lot of people went into the kitchen and a lot of others were on the other side of the hall .. . the music was playing in there . . . in the hall . . . on the north side. We were talking together and having a lot of fun. Then the rain stopped and all of the people went out again, and the music went out again and the people went on the street just the same as they did before . . . I stood right there on the platform ... And on the bottom step there was a guy named Ruttenberg. And I be- lieve Frank Hardesty was there. He was right on the sidewalk, I kept waiting around there and hearing the music. When I turned around on the south side there were 12 police over there. They was talking together. Pretty soon,another car came' and let three more out. As soon as the three more came, they all went together and talked together . . . Then another car came and let three more down . . . Three more special policemen. The fourth car came down there and it was a Massillon police car .. , . Well, I stood there, you see, and there were two police on the corner of Cleveland and Oberlin Avenue-that is near the plant and they were coming up toward the north where the other police were. They began to spread from this point here [indicating] across the street . . . they lined up." Frank Hardesty, subregional director of the Canton-Massillon area for the S. W. O. C., who arrived at C. I. O. headquarters at approxi- mately 9:45 p. in. testified that at that time there were 50 or 60 pickets at strike headquarters. "I went in the large room where they had to feed the pickets and there was music in there. There' were four or five young fellows in there playing music and entertaining the pickets and having a very good time . . . We went down to a soft drink stand . . . stayed there five or ten minutes, and then we started back. When we came out of the building it immediately started to rain very hard . . . After it quit raining we came to, strike headquarters. And the music and things were going on as usual." At a few minutes before eleven, continued Hardesty, "the pickets. changed their shifts and there were more men there ... inside and outside the strike headquarters . . . I suppose there were possibly 125 or 150 men there at that time . . . I talked to some of the boys again. The music was still going on." Other witnesses for the Board estimated the number at strike headquarters in the vicinity of 11 p. in. as between 175 and 200. Several witnesses for the respondent confirm and amplify this de- scription. James Adams testified that at 9: 30 p. m. he visited 278 NATIONAL LABOR RELATIONS BOARD Wilbert Coleman, who occupied the rooms above the C. I. O. head- quarters. "When I got there," he stated, "why the men was out in front and one of them had one of these big bass fiddles and he was playing that . . . a large crowd was out there ... There was noth- ing-just talking -I didn't pay much attention to it . . . Then it sprinkled a little bit and they all went inside ... I could hear the stamping and moving about inside." Wilbert Coleman on cross- examination added : Q. (By Mr. Lauter.) Now you said something about a crowd being up there on Sunday evening. Was that a customary pro- cedure? A. Yes on Sundays they gathered around there and chattered around between themselves; more usual on Sunday evening. Q. Until the first shots were fired, everything was peaceable there? A. Yes. Q. Was there anything unusual about the crowd? Noisy or anything? A. They were just talking; you could hear them talking. The police, however, sought to picture the crowd as a desperate, threatening mob. Thus, Officer Ickes testified that at about 10 p. in., when he arrived at Cleveland Avenue, he saw between 300 and 350 people in the vicinity; that at approximately 10: 30 p. in. some un- identified man yelled "Let's get the police. Let's get them sons of bitches"; and that he walked down Cleveland Avenue for a police car to take the men away but that when he returned the men had gone. Officer Fellabom testified that C. I. O. headquarters was packed full of men. "I could hear them saying `Come on boys, let's go through. We might as well cramp them sons of bitches down. We might as well die now and get it over with . . .' And he seemed to be a little intoxicated-a man with a white shirt and a straw hat. Then Cur- ley . . . hollered over to the C. I. O. headquarters-he says `A couple of you men take this man out of here before he starts to make any trouble."' According to Fellabom, this incident occurred immedi- ately before the shooting. Curley testified, however, that a group of officers, including Officers Ickes and Fellabom, informed him at ap- proximately 10: 50 p. in. that there had been "a couple of drunks" that were getting unruly and ought to be taken away but that they had not seen them for some time. It appears that all three witnesses have thus described the same incident. On cross-examination Ickes stated that the men were talking in foreign languages. "I could understand that when they DECISIONS AND ORDERS 279 said `Let us get the police' but I couldn't understand the rest much." He added that these words were spoken in English and were the only words he understood . If Ickes' statement is true, then Fella- bom's version must be regarded as embroidered . In any event the entire incident was considered so unimportant that neither Kraft nor Kelley, the other officers described as having been present , mentioned it in their testimony, and Curley himself merely referred to the men as a "couple of drunks that were getting unruly and ought to be taken away." All witnesses who testified to the alleged incident are agreed that within a few minutes after its occurrence the men dis- appeared. As noted above , the men were not identified. On the other hand, Officer Johnson testified that there were be- tween 250 and 300 people present that night ; that 200 people was not an unusual number on nights when dances were held at C. I. O. headquarters ; that, although he did not hear any music, the crowd was just moving around as any crowd of 250 people would do; and that he noticed nothing unusual about their appearance. Johnson also admitted that, although he did not see any women and children pres- ent before 11 p. m ., he observed three women emerge from C. I. O. headquarters at 11 : 10 or 11: 15. Officer Ickes testified that when he arrived at Cleveland Avenue at 10 p. In. and saw a crowd of approx- imately 350 people, he noticed women and children among those pres- ent and that women and children were among the crowd when the shooting began. Even Officer Fellabom admitted that, except for "a load of drunks" whom Johnson arrested and the remarks of the intoxicated man with the white shirt and straw hat, the crowd was perfectly peaceful. 15 In addition, the record demonstrates that none of the strikers were armed. None of the police or other witnesses for the respondent claimed to have seen sticks, guns, knives or any other weapon in the crowd during the entire period prior to the encounter. As set forth below, of 165 persons arrested shortly after the encounter, only one, Harry Jones, was found by the police to have had even a pocket knife, and Jones testified that it was a knife which he had been ac- 15 Officer Johnson testified that between 10 and 10 : 20 p. in. he stopped a car containing six men, driving tip Cleveland Avenue, and asked the men their business . "They said they were C. I. O. men from Canton . . . going up to the C . I. O. Hall . . . They stepped out of the car and I searched them , searched the car for weapons, but they didn't have any . . . (I ) took them down to the police station and signed an affi- davit . . . and locked them up in jail." The arrest was occasioned by the fact that a proclamation of the Sheriff of June 25 forbade all persons from entering the vicinity of strike areas except on lawful mission . The testimony is in conflict as to whether the proclamation and an injunction of the same date issued by the Court of Com- mon Pleas of Stark County apply to the City of Massillon , where the above-described incident occurred .' There is no testimony whatsoever in the record , except for this passing reference by Fellabom . that the men were drunk The Trial Examiner ruled that similar testimony given by Curley with respect to the incident of the car from Canton be stricken from the record as having no connection with the issues in the proceeding. 280 NATIONAL LABOR RELATIONS BOARD customed to carry for 4 or 5 years, and that on the night of July 11 he was unaware of the fact that he had it. We conclude that the crowd which gathered at C. I. O. headquarters from 8 to 11 p. m. was,an unarmed, peaceful assembly, composed in part of women and children, engaged in playing music and dancing and other activities usual to a Sunday night gathering. At approximately 10: 40 p. m., while the police with loaded gas guns and other weapons described above were stationed across the street from C. I. O. headquarters, a collision occurred at the corner of South Erie Street and Oberlin Avenue, a third of a mile distant from Cleveland Avenue. Because of the unreliable and conflicting testi- mony given by the witnesses for the respondent, the exact circum- stances of this collision are not clear from the record. Certain facts, however, are undisputed. It appears that an automobile crashed into an abutment near the viaduct. Almost immediately another car bearing a C. I. O. sticker collided with the first car, with the result that the viaduct was temporarily blocked. The driver of the first car was taken into custody by several officers, the driver of the second car attempted to run away, but some one in the crowd in front of a beer garden located on the northwest corner of Erie Street pointed out the fugitive to Officer Mantasch, who pursued, fired one shot and captured him. Thereafter several unidentified members of the crowd threw stones and beer bottles at other cars. Mantasch testified that Officer Schwinger fired "some shots at some guy who threw stones" and that Officer Davenport shot off a riot gun to scare a man hiding under the viaduct. It appears that several shots were fired, all by the police, shortly before 11 p. in. In 10 or 15 minutes the crowd was dispersed, the cars which had collided were pushed off to one side of the road, and traffic at that corner was resumed. Officer Mantasch took the drivers of the two cars to the city jail and locked them up. The man whom he had pur- sued gave his name as Flores and said that he belonged to the C. I. O. Apart from these facts, the record provides no clear picture of what occurred at the viaduct. Thus Officer Mantasch on direct examina- tion testified that at 10: 15 p. m. when he arrived at the corner of South Erie Street and Oberlin Road, "I wouldn't exaggerate, I would say (there were) around a thousand people around the streets with automobiles" and several hundred gathered in front of the beer garden. On cross-examination, he testified with reference to the size of the crowd : Q. (By Mr. Lauter.) You are sure there weren't more than a thousand? A. Might have been more. Q. About 1500? A. Might have been more .. . DECISIONS AND ORDERS 281 Q. Might have been three or four or five thousand? A. I didn't count them .. . Q. There is no limit to the amount of people that might have been there? A. That is right. Charles Moorhead on direct examination testified for the respond- ent that between 10: 20 and 10: 45, before the shots were fired by the police, he saw a large number of people milling around and talking at the east end of the viaduct. The number, however, he estimated as "in the vicinity of 40." Officer Moore, another witness for the respondent estimated the number as 300. Moorhead further testified that he saw a group of 20 or 25 men rush out from between houses near the viaduct and throw stones at 10 or 12 automobiles; that, after this, he saw Harold Rinke, a member of the C. I. 0., and heard him say "Come on boys, let's get the other side. We are going to town"; and that about 100 men then followed Rinke in a northerly direction. On cross-examination, Moorhead radically altered a number of these statements. He admitted that he had seen three or four cars stoned, instead of 10 or 12, asserted that there were about 100 men throwing stones, but admitted that he had not seen anyone breaking windows or glass on the cars, although he had heard the crash. With respect to Harold Rinke, he testified : Q. (By Mr. Lauter.) You weren't able to identify any of the hundred men? A. That is right; only one I saw but I didn't see him throw any stones. Q. You didn't see Harold Rinke? A. No sir. Q. The only man you knew was there was Harold Rinke and you didn't see him throw any stones? A. I didn't see Harold throw any stones. Moorhead first asserted, and then denied, that he knew that the hundred men were members of the C.-I. O. and added that there were present a number of the respondent's employees other than the mem- bers of the C. I. O. On,redirect examination, he stated that he had recognized Harold Rinke sitting in a car. It is apparent that no conclusion can be drawn from the testimony of this witness. Other witnesses for the respondent throw little, if any, further light upon this incident. In addition to Flores, only two or three members of the C. I. O. were identified by name or otherwise as having been present at the viaduct during this period. There is no evidence whatsoever that these two or three threw stones or com- mitted any acts of violence. 282 NATIONAL LABOR RELATIONS BOARD As a consequence, however, of the shots fired by Schwinger, Man- tasch, and Davenport, the police on Cleveland Avenue, already in- structed by Curley to prepare for trouble, began to grow restless. "It didn't look so good" testified Officer Kelley, "the fracas in the viaduct and the stones and 'the two men in the cars on the bridge." Kelley, added that he had heard shots from the viaduct, but did not know that the police had done the shooting. From this description of the incident at the viaduct, we return to a consideration of the events that were occurring in the meantime at C. I. O. headquarters. The nature of these events, which pre- cipitated the fatal encounter, was one of the most controverted questions at the hearing, and even their sequence, as presented by witnesses for the Board and for the respondent, is in considerable conflict. We turn first to the testimony of witnesses for the Board. All of the witnesses for the Board testify that immediately pre- ceding the encounter an automobile drove up and parked among several other automobiles directly across the street from C. I. 0; headquarters: Martin Beckner, vice president of the 'Canton Lodge of the S. W. O. C., testified that at this time he was standing in the doorway of C., I. O. headquarters and noticed the police "deployed across the street and some spread out and some closer than others, and I noticed there was something' unusual about them . . . They all had guns, but up until that time they only had clubs . . . It appeared they were nervous, acting like men expecting something, and from the way they were acting I went into headquarters and asked the president of the Massillon Lodge if that was their usual method of conducting themselves . . . We decided that these were new men and we had better ask the pickets outside to go home .. . So the president of the Massillon lodge stepped out to tell these men to go home and when he went out the door, I stepped outside the door and stood on the step and Harold Ruttenberg was standing in the door way . . . A car pulled up across the street and two men came out and Bill Henderson . . . a chipper foreman in the Massillon plant . . . and the other policeman came forward toward the car. I didn't know who the other man was, but they told the drivers to put those damn lights out or they would shoot them out . . . The car was across the street about 50 feet further down.86 The man switched out the lights and these two officers started back toward the line of police and someone in- the crowd of pickets yelled `Whoopee' or something ... and these officers immediately dropped to the ground and someone said `break them down,and let them have it,' and the shooting started about fifty feet down from the strike ao other testimony in the record indicates that this car, driven by Harry Jones, a striker, was parked approximately 20 feet south of and across the street from C. I. 0. headquarters DECISIONS AND ORDERS 283 headquarters on the southwest corner." It will be noted that Beckner testified that the shooting began in the immediate vicinity of the parked car whose headlights the police had ordered to be turned out. Frank Hardesty was also standing on the steps at this time in the midst of a group of 20 or 25 men. He testified that a car drove up on the opposite side of the street. "His car was headed, or his lights were headed toward the mill . . . What I noticed particularly was that the lights were shining on the policemen down there and I sup- -pose they were more or less frightened being new men. They acted kind of nervous anyway ... and one of them shouted `Take the lights off' .. I saw the fellow cut his lights off, when they hollered at .him . . . It was only a few seconds after that until one of the police- men hollered `Let them have it break it down.' I saw one policeman drop down and start shooting." John Veto testified that about 20 police 'lined up across Cleveland Avenue "and then a car came up there with their headlights .. . from the north coming south, and they had the lights toward the police there. ; While the light was flashing, I saw a machine on the other side of the road, the police side . . . Two cops stood up and they went forward and I heard them say `Shut the lights off.' Well, the car shut them lights off . . . and they took a couple of steps back- wards and they said `Let's bust them up boys.' And then they dropped flat." Veto identified one of the advancing policemen as Bill Henderson. "Then a shot came by just where I was standing." Walter Meyer, a striker, who had driven in his automobile to Can- ton with his wife and Mr. and Mrs. Wincek to attend a union meet- ing at Sippo -Park, returned to Massillon shortly before 11 p. in. "After we went out in the evenings we always stopped and got a bowl of soup or lunch or something before we turned in for home, but this evening I was broke and Mr. Wincek didn't have much money either and when they mentioned about getting a bowl of soup at C. I. 0. headquarters on Cleveland Avenue at Massillon we figured it would be a good place to go and get something to eat before we went home, so we all agreed to do so . . . and we drove down Cleve- land Avenue north and pulled right directly across from C. I. 0. headquarters and -parked." Q. (By Mr. Lauter.) In the direction of the mill, is that right? A. The mill is directly south, in my estimation from Cleveland Avenue and the C. I. 0. headquarters is on the' east side of the street, and I parked directly across the street which is the west side ... I noticed there was a fire plug back of me, so I pulled up six or eight feet from it and parked. We were there for some time and quite a few people were standing around there talking 284 NATIONAL LABOR "RELATIONS' BOARD and having a good time, and we were discussing whether we wanted to go in and get a bowl of soup and go back home .. . So while I was discussing that with them, I seen a car coming down Cleveland Avenue and passed our car and pulled in di- rectly ahead of us and passed the fire plug and parked directly ahead of us. Q. Was that on the same side of the street you were? A. The same side of the street, and I judge it was 20 feet be- tween my car and this man's car. The man pulled up and he shut his motor off : and I heard the cops holler "Turn them lights off." I don't think the man heard the cops when they called the first time. Well, the man was getting out of the car, and he stepped on the pavement and they hollered a second time "Turn those lights off or we will shoot them off." So the man reached in and shut them lights off and he started toward the C. I. 0. head- quarters.... Well we sat there with the windows all down and after this man left that car, I turned around toward Mr. and Mrs. Wincek and my wife and asked them the last time what they intended to do, if they wanted to go in and get a bowl of soup or if they wanted to go back home. While they were arguing about it, at that time, I heard the motor start in the car ahead of me and I looked around quick and I seen his bright lights were on, and without warning, there were two shots fired and the shots sounded as though they hit the car ahead 'of us, and I surmised that they were shooting at the man's lights because they had said before they were going to shoot the lights off and just at that time the shots were fired, it all happened I heard the cops holler "The God damn hunkies'asked for it, let us give it to them" .. . It was just-like a hail storm hit my car, sounded like machine guns and shot guns, it sounded like the fourth of July or some- thing at the lake and I seen all the people just pick up and run and run around corners, anywhere, they could go, and after that why the shooting kind of quieted down. Harry Jones, a striker, was the driver of the car referred to in the foregoing testimony. He testified that "I drove down and pulled up right across the street from headquarters . . . and parked my ma- chine. My brother-in-law and another young fellow were along . . ." Q. (By Mr. Lauter.) When you pulled up in your car where did you stop? A. Right across the street from headquarters. . . . Q. Was that in front of the fire hydrant or back of it? A. It was just in front of it . . . My brother-in-law said "Someone hollered to turn the lights off." I turned off the lights. He said, "You better turn them on dim." DECISIONS AND ORDERS 285 Q. By the way, are you a little hard of hearing? A. A little yes. That is the reason I didn't hear him. But my brother-in-law heard him and he told me. . . . So I got out of the left side of the car and turned them on. And my brother- in-law and the other fellow got out on the right. I suppose I took two steps, far enough to open the door and shut it, and I looked down and seen the policemen. I turned around and got in the car and pulled the dim lights on. When I went to pull the dim they just flickered and I pushed them back ... (The lights) flickered so I got out of the other side of the car. I reached in and turned the lights off and I stood back from the car. Just as I got back from the car, the shooting started. . . . When they (the police) started to shooting I jumped in a doorway. I stood there for about a second or about a minute, I suppose, until the first volley was over. I got down and went around the corner and faced the police. I waved my hand and I hollered "For . . . sakes stop shooting until I get my machine out of here." So I ran back to the car and started the motor. And then I went to pull on the dim lights and it flickered. As she flickered a shot hit the windshield and glass flew in my face and I ducked. The police version of the incident of the headlights differs sharply from that of the strikers. Curley testified that the headlight was shot out at 11: 15 p. m., approximately 15 minutes after the shooting elsewhere had begun. "The fellow drove up with a car and he flooded all the police officers out there with all of the bright lights and just scattered the lights all over the whole area. And Fellabom says `Turn out those lights.' The fellow turned out the lights and got right back in and turned them back on again and Fellabom says `If you don't turn those lights out, I will shoot the damn things out.' The fellow didn't turn them out, so Fellabom just shot one out." Officer Fellabom was standing on the west side of Cleveland Ave- nue "pretty near straight across from C. I. O. headquarters." On direct examination he testified : Q. (By Mr. Pontius.) Something has been said with respect to an automobile that ran up in here. Did you observe it? A. There was a car coming in there just before the trouble started (the shooting at approximately 11 p. m.) I should judge about maybe five minutes before . . . This car came down in there and whoever was driving it pulled over to the right hand curb and he had his bright lights on. Some one hollered over there to put those lights on and someone else hol- lered over the C. I. O. headquarters "Turn them on and keep them on." Of course, the illumination was pretty bright there 286 NATIONAL LABOR RELATIONS BOARD for the boys that was on the road there. This young fellow parked his car right along the curb, right near this tile build- ing, and he still had those lights on. Then he jumped out of the car. Somebody hollered "Turn them out or we will shoot them out." So I shot out one of the headlights. After he ran away from the car he left it sit .. . Q. Was that before the other trouble occurred that you de- scribed? A. That was before the trouble started. Q. What instrument did you use to shoot the headlight out? A. A machine gun. On cross-examination, however, Fellabom materially changed his story. Q. (By Mr. Lauter.) Before that (the shooting which oc- curred at approximately 11 p. m.) you had shot out the lights in the car that was standing in front, is that right? A. That was after I shot toward the door. Q. What is that? A. That was after I shot at the door. You see, the car was standing in there with the lights on and the young fellow, who- ever it was, he was in the car and left it and then he came back and then he left it for the second time. I think it was some time after the shooting from over the door that the headlight was shot out. Q. About what time did you shoot the lights out from the car? A. Oh that might have been 11:30 along in there. Q. What time did the man drive up with the car? .. . A. Just before 11; around 11 o'clock... . Q. The lights were shining on the police all that time for 35 minutes? A. Yes. Q. You walked over to the car 35 minutes after the lights had been on and told them to turn that off? A. I told them to turn that off ? Q. Who did? A. Some one hollered to turn them off. He jumped off the car and left them on and someone hollered, "You better put them lights out or we will shoot them out." He jumped in the car and then left the car. That is when the trouble started. Q. You didn't shoot the lights out then? A. No sir. Q. You waited around 35 minutes before you started to shoot them out? A. At least 35; 30 or 35. DECISIONS AND ORDERS 287 It will be noted that on cross-examination, Fellabom not only claims to have shot out the headlight after the shooting elsewhere began, but denies Curley's explicit statement that Fellabom com- manded the occupant of the car to "turn those lights out or I will shoot the damn things out." On the other hand Officer Kelley, who was standing with Curley on Cleveland Avenue, testified the headlight was shot out as Curley was advancing up Cleveland Avenue, a few seconds before the gen- eral shooting. Officer Johnson testified that he arrived at Cleveland Avenue after the shooting had begun and that no headlights were shot out at 11: 35 p. m. or at any time after his arrival. We are convinced that the testimony of Curley and the testimony of Fellabom on cross-examination, with regard to the time the head- light was shot out, is not to be credited. On the other hand, apart from their testimony with regard to the time, Fellabom and Curley appear to have accurately described the details of the incident. Hardesty, Beckner, and Veto stated that after the police had shouted to Jones, he turned the headlights off. It is apparent from their testimony, however, that they did not see the headlights turned on again or Fellabom fire his submachine gun at one headlight. From Jones' testimony, it is not clear whether he saw or heard Fellabom shoot out the headlight after he claims to have turned the headlights off. The entire incident occurred within a few seconds, and it must be remembered that Jones was hard of hearing, and Hardesty, Beck- ner, and Veto were, at the time, standing in front of C. I. O. head- quarters, where their opportunity to observe the events on the other side of the street was limited. -17 Curley's and Fellabom's testimony that Fellabom fired shots at the headlights because they had not been turned off, is obviously the more reasonable of the two descriptions, since Fellabom would hardly have sought to eliminate a glare which no longer existed. In addition, the testimony of both Curley and Fellaborn with regard to the details of this incident is supported by that of Meyer, whom we regard as the most accurate and reliable ob- server of the events in his immediate vicinity. From all this testimony we conclude that as Curley and Henderson had advanced approximately 50 feet toward C. I. O. headquarters, Fellabom fired several shots at the headlights of Harry Jones' car,' and that immediately thereafter the police opened fire at the strikers. At the first volley, it appears that the crowd stood incredulous and then fled in utter and bewildered panic. Hardesty was standing on the steps of C. I. O. headquarters. He testified that a few seconds s'+ Fellabom testified that from where he stood on the west side of the street, his view of the doorway of C. I. 0 headquarters was blocked except for the top two feet of the doorway, by a tarpaulin-covered truck , standing in front of C. I. 0 headquarters . Presum- ably the view of Hardesty, Beckner, and veto with respect to the activities of Fellabom on the opposite side of the street was similarly blocked 288 NATIONAL LABOR RELATIONS BOARD after the headlights went off "I heard someone shout again. `Break them up ! Let them have it P And they started to shoot. However I didn't move immediately because not being used to riots and things of that sort, I really thought they were just shooting dummies. I thought it was more or less of a bluff. But it wasn't very long until I found out they were really shooting bullets...." Q. (By Mr. Hunt.) When you say they were shooting bullets, to whom do you refer? A. The policemen. Q. Where were they from C. I. 0. headquarters? A. They were about 50 feet down the street towards the steel plant. I saw a policeman go down like this (illustrating) and start to shoot. At first, I couldn't really believe they were shoot- ing real bullets into a crowd of men like that, until I really heard the bullets flying and the bullets flying off the building .. . Mr. EDWIN S. SMITH. Let me get this straight. Was the crowd of men standing between you and the policemen and you were in back of them? A. No, I was right in more or less mixed in with the men. There were some of the fellows who were behind me and some of them were in front of me. We started to move, up the street. I had not moved far at all until one fellow hollered he had gotten shot in the shoulder and he threw his hand over his shoulder. Mr. EDWIN S. SMITH. What did he say? A. He said "They got me. I am shot." There were three or four friends with him and they grabbed hold of him and took him along with them. Q. Let we understand this. You were running up Cleveland Avenue. A. We were running up the street from the mill, up Cleveland Avenue. I had not run very far until I saw another man lying on his face with his hands outstretched, motionless, who had been shot by the policemen and from the way he was lying there, there was no doubt, or I thought he was dead, and I guess it did turn out that he was dead. So we kept running up the street un- til we found an opening in the fence. After I got there, Martin Beckner and another fellow drove up and on. Beckner was hang- ing on the running board of the car and he stopped and we got into the car and went back to Canton... . Q. Did you on the evening of July 11 at any time see any shoot- ing at C. I. 0. headquarters? A. I did not. 'Q. Did you see any persons other than police using any weapons? A. I did not. DECISIONS AND ORDERS 289 Martin Beckner who was standing on the steps of C. I. 0. head- quarters, had a similar experience : Q. (By Mr. Lauter.) Was there shooting,by anybody else? A. Shotguns, machine guns and bullets from these special po- licemen located south of strike headquarters. Q. At any time you were on the scene did you see any shooting from C. I. 0. headquarters? A. There was not. Q. During the entire evening did you see or hear any shooting by any of the C.I.O. men? A. No sir. Q. Did you see any shooting by anyone else besides the police? A. I did not. Q. Describe what happened after the shooting started. A. When they started shooting I went around strike head- quarters on the north side of the building until I came to a lane running parallel with Cleveland Street . . . and seen some people from Canton in a car with two women and I told them to get the women out . . . because I didn't want to see the women shot ... I went toward the Massillon headquarters and saw a man lying face down in the street and every once in a' while the police' were shooting gas shells and I said "Let's get that fellow out" and we carried him up to the corner of Cleveland Street and McKinley Avenue and a car came up with two men and two women in it (the Mayers and the Winceks) ... We stopped the car and put the man in it and a 'second man had fallen and we picked' this man up and he had been hurt in the shoulder ... and by this time the special police started shooting at us and we started to McKinley Avenue ... the special police men were lined up on the west side of the street and some were still coming up Cleveland Avenue shooting gas shells and buck shot and these other policemen lined up across from the strike headquarters and every once in a while you could hear the gas guns'and these special police went on up to another street run-' ping parallel with Cleveland Street and I seen this car with the Canton people in it and asked them 'to take Mr. Wilson-that was the name of the' man that had been shot, and another car came along and I got on it and we drove back to Canton. Walter Meyer, his wife; and the' Winceks were seated in a car outside C. I. 0. headquarters : Q. (By Mr. Lauter.) At the time the shooting started, what did the occupants of your car do? A. 1 told them to duck. 290 NATIONAL LABOR RELATIONS BOARD Q. Did they duck? A. Yes I say they ducked . . . after the first volley was over, the people pretty, well cleared the street in front of headquarters and it quieted down after the first volley, and ... just as I raised up there was a tear gas bomb dropped about six feet ahead of my car, and right away I hollered at Mr. and Mrs. Wincek to roll them windows up . . . and attempted to start and get away from there and just as I done that the second volley came and the second time I told them to duck and stay ducked and I went down myself and we laid there until the second volley was over and I said to Mr. Wincek "We have got to get out of here one way or another" so I raised up high enough that I could see out with my ]eft eye, and I put my car in low gear and pulled up about eight feet, and I cut my wheels real short, and the third volley came and L didn't stop and I hit the car back of me and I back up the street all through the third volley and the third volley was over the minute I backed into the alley. I . . . went up the street in high speed . . . pretty near a block and I seen at least _a, dozen 'men standing around there . . . and I seen two men (Beckner and Hardesty) holding one man between them and somebody hollered "Take this man to the hospital" . . . I stopped my car and I told my wife and Mr. and Mrs. Wincek to get out on the street in order that we would have room to take these men to the hospital. These two men were holding one man and we loaded this man in the back seat and one man . . . held this wounded man's head . . . There was the man got on the front seat and he said he got shot in his right shoulder . . . While we were driving up to the hospital this man lying on the back seat was moaning and suffering terribly. He said "Boys, I am dying." I rushed the man up to the hospital at high speed. We put him on the stretcher up there and took them up on the second floor` on the elevator. I helped lift the man on the bed and pulled his pants off . . . And I rushed down to my car and beat it right back to where I left my wife and Mr. ,and Mrs. Wincek. _ When I got there, my wife and Mr. and Mrs. Wincek were not there. There were some other men standing there at the corner. Mr. Joe Morton picked up a tear gas shell that landed right on the corner,there and up along the street. I was standing there looking at that and Mr. Wincek hollered up the street and said ' Hey Walt'! I am up here." So I 'went in my car and drove on up the street and I picked up my wife and Mr. and Mrs. Wincek. Q. Do you know that the man you took in your- car, who was lying in your back seat, died?, DECISIONS AND ORDERS _ 291 A. Yes. I went up to C. I. 0. headquarters ... the next day and some of the boys . . . told me "you know that fellow you took to the hospital . . . Well, that fellow died this morning." Q. Will you describe the condition of your car after the shooting? A. . . . The windshield was all shattered from being shot. I don't think there were any rifle shots or machine gun shots hit our car. It was practically all buckshot. It shattered . . . the body over the windshield and the body down along the sides of the windshield and both fenders. The left door window . . . was shattered . . . I counted ten shots that went through the radiator that landed back of the motor up against the dashboard.... . Q. During all of the time that you were there did you see any shots come from C. I. 0. headquarters? A. No sir; none whatsoever. I didn' t see no flashes, and I didn't see no shots, and I didn't see anybody whatsoever have a gun. Q. Did you see anybody shooting except the police? A. No sir. Harry Jones testified that after the shooting began, "I laid do-NN il, between the seat and the gear shift and the brake for maybe a minute or so, until I worked my body up onto the seat and kept my head down . . . I opened the door and got around on the rear'bumper .. . While standing on the bumper, the gas shells and shots started flying and tears started rolling down my cheeks and I started feeling a little sick in my stomach. I got a foot braced and I made a leap. I ran from door to door until I got to the last building." Q. (By Mr. Lauter.) Will you describe the condition of your car? A. There was a bullet hole through the windshield and a lot of buckshot in the windshield, a bullet hole through the right headlight, and the radiator on the inside was all full of holes and the outside where the buckshot hit is dinged and the hood on the left side is all spotted from where the buckshot hit and knocked the paint off. All the foregoing witnesses have described the tactics of the police, as they saw them from outside C. I. 0. headquarters. John Veto, retreating from the door into the building, describes a scene of unpar alleled horror. He testified that as the two police officers advanced up Cleveland Avenue and said "Let's bust them up, boys" they dropped flat. "Then a shot came by just where I was standing, right on from there near me, and I think there was a tear gas shell, because it hit the building and some pieces came inside the room there. As soon, as when I heard that I turned around and went into the hall. And 134068-39-vol is-20 292 NATIONAL LABOR RELATIONS BOARD there was a table right there in the hall. When I was turning to dive under the table I had a sharp feeling right on my leg here. And I laid flat under the table. And I didn't get up to see what it was because if I went from there I could get hit on the head." Q. (By Mr. Lauter.) You had been shot? A. Yes .... I was (under) the table laying flat for ten min- utes.... I heard a man from the outside say "God ! They're not blanks; they're bullets." . . . Then when I heard that I crawled from the table and I went to the other room. And that room leads into the kitchen. And I went into the kitchen. And there five women and around seven or eight men ... ' We waited there for a little bit and we shut the windows all around us ... There was so mubh tear gas and the women were all choked up . . . We waited a little bit in the kitchen there for about 15 or 20 minutes, I guess, and a man said "I will go out and see what happened." Q. Why did he say that? Was the shooting still going on? A. Yes. And I said "All right. I will go with you." He was going on from there and I was coming on back. And when he reached the door Q. What door? A. The front door ... that leads to the street. When he opened, the door.I saw a deputy sheriff shot at him right away while he was holding the knob of the door and the door was half opened and the deputy sheriff turned around and shot the guy right in the leg. He said "God! I am hit." When I heard that "God, I am hit" I said "Come on boys let's help these men out." And two more men came and we helped him ... And we carried the man into the kitchen and we laid him on the icebox . . . a low icebox ... a woman went to get hot water to clean him. And by the time she came, the kitchen was all full of blood. There was blood all over the kitchen there coming from his leg.... Then the woman washed him up and we let him go for a little bit. We heard a noise in there and we turned off the lights awhile, but the man he fell from the icebox on to the floor. And then we picked him up again. By the time we picked him up two women went to the door ... to call for the ambulance. When they got to the door they were shot at twice, because when (they) came back the, said "Gosh, we have been shot at twice." From that time on nr,body went to the door anymore. We all sat behind there in the kitchen ... Then the ambulance came ... and we helped the men to carry him out on the stretcher. When we carried him out, I said to the women there' "You women DECISIONS AND ORDERS 293 might as well get out from there." Well, they got out. One of them, she crawled from the window ... then the other one went out the front of the house. Q. When did they go out the front room? A. When the ambulance was there because that was the chance they had. Otherwise they would be shot and they couldn't get out. Q. What did you do? A. I helped the men put him in the ambulance and I went away too ... I went on the sidewalk, and when I reached around 25 feet them police were hollering to "Come back here ! Come back here!" I turned around and I saw them hollering and I stumbled on a man lying on the street there . . . And I got up and ran away. And I reached the corner of Cleveland and McKinley Avenue there, and there was a bunch of men, I would say ten or eight men. They were talking together about helping the man lying on the street there . . . When they were near the man, the police shot and they hit one of those men . . . Then finally I went up McKinley Avenue ... And I saw a lot of police. They were coming from toward McKinley Avenue. And I saw that and I kept going. When I reached the corner of Duncan Street and McKinley Avenue, there was . . . a car of special police and a bunch of men sitting on the ground. They were talking together. When that passed, they shot at those men. I ducked down behind a telephone post there. Mr. Donald Wakefield Smith : How far was that from C. I. O. headquarters? A. It was three blocks away from C. I. O. headquarters. Q. (By Mr. Lauter.) Now during all the time you were there, did you see any shooting from C. I. O. headquarters? A. No. Q. Did you see any shooting from anyone except the police? A. Just the police shot. Wilbert Coleman, the occupant of the second floor, testified for the respondent that the glass windows in the front of the building were smashed, that there were bullet holes inside the building, that tear gas was fired through the two front windows, and that because of the effects of the gas, his wife, his brother-in-law and mother then in his apartment, required treatment at the Republic Steel hospital. To all of this testimony, the respondent replied with a plea, in effect, of self-defense, charging that the police opened fire only after several shots had been fired at the police from somewhere near the vicinity of C. I. O. headquarters. 294 NATIONAL LABOR RELATIONS BOARD Before examining the testimony of the witnesses for the respond- ent it is necessary to recapitulate the sequence of events immediately prior to the encounter as established up to this point : (1) Shortly before 11 p. m. Harry Jones parked his car on the west side of Cleveland Avenue, almost directly across the street from C. I. O. headquarters, with its headlights shining on the regular and special police lined up on Cleveland Avenue 50 to 100 feet south of C. I. O. headquarters. (2) Officer Fellabom armed with a loaded submachine gun was standing on the west side of Cleveland Avenue across the street from C. I. O. headquarters in the immediate vicinity of Jones' car. (3) At approximately 11 p. m. Major Curley and Special Officer Henderson advanced midway from the line of police toward C. I. O. headquarters. (4) At the same moment Officer Fellabom fired two or more shots at the headlights of Jones' car. (5) Almost immediately thereafter the police opened fire it C. I. O. headquarters. With this summary, we turn to the testimony of the witnesses for the respondent.. It is evident that the vital question at issue is the exact source of the shots which the respondent alleges precipitated the shooting by the police. Officer Ickes testified, "Cap Curley lined seven or eight of us, maybe six or seven I don't know, . . . us fel- lows that had the gas guns, across the road . . . about 100 feet south of C. I. O. hall on Cleveland Avenue . . . He said he was going over and tell those people to move, that it was late enough, that he was going to have them move off the street . . . break them up . . . Just as he started over there about halfway between the C. I. O. headquarters up the line, there was four or five shots came out along in the vicinity of the C. 1. 0. headquarters. 38 Stones started to fly . . . We started firing. I don't remember whether- I started firing gas shells over against the front end of the building ... Well, we started to fire the gas shells, and after we shot some gas into them , they started to disappear somehow. There was still some across the street but not all of them. All of them didn't disap- pear but most of them did. They ran all over, I guess . . . A little while later, the Canton police arrived and they drove up through Cleveland Avenue with their armoured car and shot gas-what they needed to clear the street.. That is all there was to it." On cross-examination Ickes added that he saw Special Officer Henderson advance with Curley, that he did not see anyone use a machine gun, and that he heard no other shots fired from the direc- tion of C. I. O. headquarters except the four or five at the begin- -" Italics supplied. DECISIONS AND ORDERS 295 ning, as Curley and Henderson had reached the point halfway up Cleveland Avenue. Officer Kraft testified that he was standing about 100 feet south of the brick building on the west side of Cleveland Avenue ten yards west of the sidewalk. ". . . they got pretty noisy up there and Curley said something about breaking them up . . . and Curley started up toward . . . the crowd . . . and when he got about 50 feet from the crowd , four or five shots rang out and stones flew, they started shooting from both sides." Q. (By Mr. Pontius. ) Now you saw four or five shots fired. Where did they come from , did you observe? A. From the C. I. 0. headquarters there some place ."' Q. What if anything did you notice about any automobile coming up there on the street? .. . A. Someone pulled up there with an automobile. He stopped there and turned the headlights on. He had the headlights on the police. Q. Did that occur before Curley started up the street or after lie started up the street? A. Right about the same time. Q. Did you hear any talk there with respect to those headlights? A. I heard some one holler to turn them out. In front of the C. I. O. headquarters, he hollered to turn that light off. Kraft on cross-examination testified with reference to the four or five shots as follows : Q. (By Mr. Lauter.) Where did you see the bullets come from? A. C. I. O. headquarters. Q. What part of the headquarters. A. The front part, close to the entrance some place ... kind of a cement porch in front there. Q. Do you mean the sidewalk? A. Yes sir. Q. And that is where the shots came from? A. Up in there some place. Q. From the sidewalk is that right? A. I can't swear where, right the exact spot where they come from, but they come from in there some place. Q. I am trying to find out . . . whether you know where they came from or not. 19 Italics supplied. 296 NATIONAL LABOR RELATIONS BOARD A. I heard them in that direction right in front of the-- Q. Did you hear them or see them? A. I heard them. Q. Were you facing the C. I. O. headquarters? A. I was. Q. You didn't see where they came from at all? A. I didn't see them, I heard the direction they came from. Kraft also testified that he saw Fellabom earlier in the evening take the submachine out of the police car, and walk across the street, but did not see him shoot at the headlights. Officer Kelley was among the group of police stationed 100 feet south of C. I. O. headquarters. He testified that "an automobile was driven up and parked on the west side of the street; the driver got out of the car, left' the lights burning. They were shining directly down the road and into our face and it was partially blinding us. Someone called for him to turn the lights out and the man had taken oh possibly three or four steps away from the car and he turned and went back and turned the lights off. And someone called out from the vicinity of C. I. O. headquarters, and he used a string of unprint- able words and ordered this man to turn the lights back on and he immediately went back to the car and snapped the lights back on. Then with that Captain Curley started forward . . . to turn the lights off . . . ' and as he passed me, he told me to cover him . . . When he got tip within oh approximately 15 feet of the automobile, why there was a volley of rocks thrown and some one fired five shots from the revolver in the vicinity of the C. I. O. Ha 11.40 The shots were fired in rapid succession. And with the shots and the stones, the crowd surged forward and I released the tear gas shell about eight or twelve feet over their head . . " On cross-examination, Kelley testified : Q. (By Mr. Lauter.) You testified about covering Major Curley at.one point . . . Will you state when that was? A. Well it was prior to the start of the fight up there, just a minute, or within a few seconds rather. Q. Was that the time that the headlight was shot out? A. Yes sir. Kelley then retracted his previous statement that Curley had gone forward in order to turn off the headlights. 40 Italics supplied. DECISIONS AND ORDERS 297 Q. He (Curley) said nothing about the lights? A. Not to me. Q. When were the lights shut off? Was that before the gen- eral shooting started? A. Yes sir. Q. Fellabom shot the lights out of that car before the shooting occurred? .'oa A. 11'0. Let me recall about that. That was before the fracas Q. Don't you know which statement is correct now? A. The last one. Q. The first statement was incorrect? A. Yes, sir, I am sorry. While this testimony confirms the testimony of witnesses for the Board with regard to the time at which Fellabom shot out the head- light we are satisfied from the manner in which Kelley answered the questions put by counsel for the Board, and from his testimony on direct examination, that Kelley did not see the shots which were fired by Fellabom at the same moment that Kelley claimed to have heard the five shots fired in rapid succession from the vicinity of C. I. 0. headquarters. If Kelley's testimony on this point is to be credited at all, it indicates that he merely saw the lights from the headlight shut off. It is evident from the testimony of these three officers that al- though they all appear to have been facing C. I. 0. headquarters at a distance of approximately 100 feet when the four or five shots were fired, they could not fix the source of the shooting any more precisely than "out along in the vicinity of the C. I. 0. head- quarters," or "from the C. I. 0. headquarters there some place" or "from the vicinity of the C. I. O. Hall." None of the three testified that they saw flashes or fire from a gun, and it appears from their further testimony that they merely heard the shots. Moreover, with the possible exception of Kelley, none of the three saw Fellabom, stationed directly across from C. I. 0. headquarters, fire his sub- machine gun at the headlight of Jones' car at approximately the same moment that they claim to have heard the four or five shots from "out along in the vicinity of C. I. 0. headquarters." Kelley's testimony, as noted above, merely indicates that he saw the light shut off, but not that he saw Fellabom fire his submachine gun. Although the testimony of these three witnesses establishes the fact that certain shots were fired, it does not indicate that they were fired by the strikers rather than by Fellabom. We turn next to the testimony of several of the respondent's employees who claim to have seen the firing from C. I. 0. head- quarters. 404 Italics supplied. 298 NATIONAL LABOR RELATIONS BOARD Orin Pauli testified that at 11 o'clock he and two fellow employees, whose shift ended at that hour, drove up to the respondent's main entrance or gatehouse, on their way out of the plant from work.41 This entrance is located about 300 yards from C. I. O. headquarters. Pauli's car was four or fifth in line when the first car was stopped at the entrance by Republic Steel Police. "We drove up to the entrance, there they stopped us, they had started to shoot," he testi- fied on direct examination "You could see the flash of the fire coming out . . . of C. I. O. Hall . . . I didn't see anything else, but we heard the bullets." On cross-examination, he stated that he was standing or "ducking" behind the car from the time the shooting started until after it was over, and again, that he was standing beside his car when he heard the first shot. Pauli also amplified his description of the shots by stating that he saw the flashing of guns from the front and side windows of C. 1.,0. headquarters when the shooting first started. It will be noted that there are two important discrepancies be- tween Pauli's testimony on direct examination and his testimony on cross-examination. If he drove up to the entrance in his automobile and the shooting had already started, as he testified on direct exam- ination, he could not have seen the first shots and could not have been standing behind or beside his automobile, as he testified on cross-examination. On cross-examination, confronted with this con- flict, Pauli finally chose to reaffirm his second version. In any event we consider his testimony unreliable. Standing ap- proximately 300 yards away, behind four or five other cars, in the darkness of 11 o'clock at night, he claimed to have seen flashes from the front and side windows of C. I. O. headquarters, which not even the closest observer of all the witnesses for the respondent claimed to have seen. It is obvious that even if he did see flashes from guns, he could not at that distance have distinguished whether they came from Fellabom's machine gun or from C. I. O. head- quarters. Edward Lustig, a watchman employed by the respondent, testi- fied that at approximately 11 o'clock he was standing at the window on the northeast corner of the respondent's main office building, about 400 feet from C. I. O. headquarters. "There was a man walked up the street toward the C. I. O. and he got part ways up there and I hear some noise and hollering and all at once why there was five shots fired from C. I. O. and this somebody hollered in the 41 In his testimony on direct examination Pauli referred to Gate No . 1. A glance at the map (Respondent Exhibit No. 1) will show that It would be almost impossible for any- one at the No. 1 gatehouse to observe the front of C. I. O. headquarters. On redirect examination, Pauli corrected his previous testimony and stated that he meant to refer to Gate No 2, the main entrance DECISIONS AND ORDERS 299 back for . . . somebody to come forward and they started to shoot this tear gas." Q. (By Mr. Pontius.) Just tell us from where you saw the shots fired as you observed them. A. Well right from the C. I. O. building, right from the side- walk down-there was a man standing as close as I could see from the distance I was away from him, and he fired five straight shots. It will be noted that Lustig is the first witness for the respondent who claims to have seen any person firing the shots. All other wit- nesses observed only the flashes or the fire from the gun. On cross- examination, Lustig defined the man's position more closely. "It looked to me just like he was standing on the sidewalk when he fired this gun ... just about eight or ten feet from the building . . . five shots in rapid succession." In view of this testimony, more precise, with regard to the position of the person who fired, than that of any other witness, the following testimony on cross-examination is ; ignificant: Q. (By Mr. Lauter.) Is you,. eyesight pretty good, Mr. Lustig, now? A. Pretty fair. Q. Can you see what time it is over there now ? 42 A. Yes. Q. What time is it? A. I think it is 20 minutes after 4. Mr. LA=rt. Let the record show The WITNESS. Or three. Mr. LAUTER. That it is twenty-five minutes after three. The WITNESS. After three, is it? Lustig also admitted that he was "kind of a little deaf, that is my ears" and had considerable difficulty in hearing the questions ad- dressed to him at the hearing. We consider that these admissions render Lustig's testimony unreliable. If, as appears, his eyesight was poor and he was hard of hearing, we doubt that- at a distance of 400 feet at 11 o'clock at night he heard someone holler to come forward and saw what no other witness in the immediate vicinity was able to observe-a man standing on the sidewalk eight or ten feet from the C. I. O. headquarters fire five straight shots. At the very least, we believe that under these circumstances Lustig could not have 4' This reference Is to the clock in the hearing room 300 NATIONAL LABOR RELATIONS BOARD distinguished whether the 'person firing the five shots in rapid suc- cession was Fellabom with his machine gun across the street from C. I. O. headquarters or some other person among the strikers in front of C. I. O. headquarters. Frank Swarm, a night watchman employed by the respondent, was standing at the window on the east end of the first floor of the district or main offices, at least 300 feet from C. I. O. headquarters. A few seconds after the 11 o'clock whistle had blown, he testified, he saw the fire from guns, from in front of C. I. O. headquarters, "five shots from the front of headquarters." Q. (By Mr. Pontius.) Then what next did you see? A. Well really leading up to the shooting, there was two men walked up Cleveland Avenue, in front of the headquarters, and they got right up near the headquarters and there was five shots fired. Two men dropped and they started back towards the police department they had strung across Cleveland Avenue. After the fifth shot was fired, the Massillon city police started to shoot tear gas. After the Canton police arrived, Swarm continued, "there was an- other volley of firing; shooting started from up in front of the hall again." On cross-examination, he testified with respect to the first volley of shots : Q. (By Mr. Lauter.) Where did the shots come fronn ? A. In front of the C. I. O. headquarters . . . directly in front of the building .. . Q. But you don't know whether it was from the doorway or the sidewalk? A. I wouldn't be positive, no .. . Q. But are you sure they didn't come from the steps of the building? A. No, it wasn't that close. With respect to the second volley of shots, he testified : Q. (By Mr. Lauter.) Where did these shots come from? A. From headquarters all around headquarters . . . right up in front . . . right in front of headquarters. Q. In the doorway? A. I couldn't say if it came from the doorway or not. Q. Would you say it came from the sidewalk? A. Either the sidewalk or the street. Officer Ickes and Major Curley testified that the only shots during the entire evening that came from the vicinity of C. I. O. head- DECISIONS AND ORDERS 301 quarters were the four or five shots at the very beginning, immediately preceding the firing of gas bombs by the police. Officer Johnson, who arrived at Cleveland Avenue shortly after the shooting had begun, testified that he saw no shots fired from C. I. O. headquarters at any time after 11 o'clock. Officer Fellabom testified that the only shoot- ing from C. I. O. headquarters that he saw came from the doorway at 11 o'clock, and that, thereafter, from his position directly across the street from C. I. O. headquarters, he fired several rounds at the upstairs windows of other houses. This testimony by the respondent's witnesses indicates that the second volley came not from C. I. O. headquarters but from Fellabom's submachine gun. As noted above, however, Swarm identified both volleys as having been fired from in front of C. I. O. headquarters. We think it clear that Swarm, £•tand- ing at the east end of the main office building, was not in a position to distinguish whether the first volley came from Fellabom or from C. I. O. headquarters. The very fact, however, that Swarm identified both volleys as having been fired from the same spot indicates that the first volley, like the second, was fired from Fellabom's submachine gun. The testimony of two other witnesses for the respondent lends sup- port to this conclusion. Wilbert Coleman, the occupant of the rooms over the C. I. O. headquarters, testified that he heard the shooting but did not hear any shots come from the downstairs of the building. James Adams, a visitor at Coleman's apartment, testified that he saw a man on the west side of Cleveland Avenue on the sidewalk shooting a machine gun, that the first shots that were fired sounded as if they came from the west, from the street, directly in front of the building. There remains to consider the testimony of Major Curley and Officer Fellabom who at relatively close range claim to have seen the flashes of the gun as it was fired. Of all the witnesses for the respondent, Fellabom tells the most circumstantial story of the events which followed. At many important points, however, his testimony differs from that of other witnesses both for the Board and for the respond- ent. He testified that immediately after the intoxicated man with a white shirt and a straw hat gave up his attempt'to go through the police line, Curley walked up to the center of the street and shouted to C. I. O. headquarters, "'A couple of you men take this man out of here before he starts to make trouble.' 43 I noticed this man walked to the doorway in the C. I. O. headquarters while Curley was standing there. Stones started to fly. I saw the fire flying off the bricks there. I saw one of these hand grenades-a gas bomb-I seen them flying off the stones. That gas bomb didn't any more hit the road when the shooting started out of the doorway." 4s According to Curley and Ickes, this incident occurred at approximately 10:30 p. m. 302 NATIONAL LABOR RELATIONS BOARD Q. (By Mr. Pontius. ) Now from your position could you see any guns from there? A. I could see the flashes of the shooting . I couldn't see the gums . . . the fire was flying close from the top of the door. Just like someone was standing up and holding a gun and shooting down like that [indicating] I could see this much . . . just like someone was standing in the doorway and a gun held like that [indicating]. I could see that much on the truck. Trial Examiner LINDSAY. You mean the gun was held up over his head? A. Yes it was higher. Trial Examiner LINDSAY. Holding the gun up in the air? The shooting was down? A. Yes. Q. (By Mr. Pontius. ) With respect to this truck , where was the location of this firing? A. It was right behind the truck. Q. That is from where you stood? A. Yes sir. Q. Now, could you tell the direction in which these shots were fired? A. They was coming toward our men. They were standing at an angle. Q. From the position you were standing in at that time, could you see any part of the doorway, leading into the C. I. 0. head- quarters? A. About two feet of it top and down. Q. Now where, in respect to the doorway , did you see these flashes? A. Close to the top. Q. Were you able to distinguish any person there? A. No, 'sir. It was a tarpaulin over this truck. It hid the view of the front. But I could see-all I could see was about two feet around in top of the road. Q. Could you see the man holding his hand up there .. . A. All I could see was this firing; this fire was flying close to the top of the door. Q. Now what if anything did you do at that time? A. I turned the machine gun loose on that shooting out of the door . . . I shot over in there and then stopped, and then the boys-the rest of them was all shooting in there, shoot- ing gas. They was close to me and it got so noisy you couldn't hear yourself think. Fellabom then described how he shot out one headlight of Harry Jones' car and explicitly testified that he did this just before the DECISIONS AND ORDERS 303 above-described events took place. Continuing, he testified that he first fired three times at the doorway, then "saw in the upstairs win- dows was flashes of shooting." Q. By upstairs windows, you mean what? A. Toward the buildings along the street on the right, hand side, on the east side of the road .. . On cross-examination, Fellabom stated that he was on the west side of the street across from C. I. O. headquarters, that "the first shot came out of the doorway of C. I. O. headquarters," and that he fired the second shot. As noted above, he then retracted his explicit testimony made on direct examination, that he had shot at the head- light just before shooting at the doorway, and asserted that he had waited approximately 35 minutes before shooting the headlight out. He remained firm in his assertion that there was no shooting other than the gas bomb before the shots came out of C. I. O. headquarters. Q. (By Mr. LAUTER.) You are absolutely sure that some police officer fired a gas bomb before any shooting from the C. I. O. headquarters. A. Yes, sir. I saw it flying through the air. That is as true as I said it .. . Q. I am asking you whether or not before the gas bomb was fired, the only action of any violent nature was the throwing of stones by some C. I. O. men, is that correct? A. Yes, sir. Fellabom also testified that the only shooting that he saw came from the doorway, at approximately 11 o'clock. Later he testified that,•he saw between 50 and 100 shots coming from the upstairs windows of the eight or ten buildings on the east side of Cleveland Avenue, and that he fired his machine gun several times at these windows. As noted above, Officer Ickes and Major Curley testified for the respond- ent that the only shots which they heard or saw from the vicinity of C. I. O. headquarters during the entire evening were the four or five shots immediately preceding the firing of gas bombs by the police. Thus Fellabom, whose view of the front of C. I. O. headquarters was almost totally obstructed by the tarpaulin-covered truck, claims to have seen flashes or a first shot fired, from the doorway after a gas bomb was fired, at a time when Ickes and Curley with an unob- structed view testified that all firing had ceased from the vicinity of C. I. O. headquarters. In addition, no witness, except Fellabom, tes- tified that any shots were fired from the doorway. Fellabom's testi- mony on this point is not only at variance with the testimony of the witnesses for the Board, who testified that no shots were fired from the doorway or any other place in the immediate vicinity of C. I. O. 304 NATIONAL LABOIt RELATIONS BOARD headquarters, but 'also with the testimony of all the witnesses for the respondent who testified to the first shots. We think the evidence is overwhelming that Fellabom's testimony to the effect that he saw flashes or a first shot.from the top two feet of the doorway is not to be credited. • The salient part of Fellabom's testimony, however, relates to his consistent assertion that he saw a gas bomb fired by the police fly through the air and hit the road before he saw the "first shot" from the top two feet of the doorway of C. I.0. headquarters. Every other witness for the respondent, without exception, steadfastly asserted that the police fired gas bombs only after four or five shots were fired from some place, more or less definitely identified, in the vicinity of C. I. 0. headquarters. This difference between the testimony of Fellabom and every other witness for the respondent is crucial. It indicates the police 100 feet south of C. I. 0. headquarters opened fire after hearing the shots fired by Fellabom from his submachine gun in the belief that such shots-were fired by the strikers. Before summarizing the evidence in support of this conclusion, we turn to the testimony of Major Curley. Curley testified that he was standing 100 feet south of C. I. 0. headquarters among a group of special and regular police at 11 o'clock when "the crowd commenced to get larger at C. I. 0. Hall and Kelley and Henderson and Fellabom and Ickes and I got our heads together and I said `Don't you think it would be a pretty good idea to go up and tell those fellows that they will have to abide by the proclamation that was handed down by the Sheriff of Stark County.' . . . So I said `We do not *want to have any trouble here.' I said `It would be a good idea to break it up.' So Henderson, he started forward, and he turned around and he said `Come on Cap' and I said `Hell, I ain't got any business up there. I am not deputized to go up in there.' And he said `You are deputized now.' He says `You are going right along up.' I says `All right, if that is the way you feel about it, I will go up and try to talk to the boys.' So we started forward .. . and I got about 50 feet ahead of where the officers were lined up... . I was met with `You God damn dirty sons of bitches' and bingo out came a bunch of rocks, clubs, stones and bingo five shots one right past my head." Q. (By Mr. Day.) Who said this about the sons of bitches? A. "The men up around the C. I. 0. Mall. Q. And where did the rocks come from? 'A. Around the C. I. 0. Hall. Q.' Where did the shots come from? A. From on the step of the-in front of the front door of the C. I. 0., Hall. DECISIONS AND ORDERS 305 Q. How many shots did you see? A. Five. Q. Could you give an opinion as to what kind of shots they were, or from what guns they were fired? A. Yes, an automatic revolver . . . I immediately dropped to the ground and all hell broke loose . . . the firing started, I was lying on the ground. I don't know, I laid down. The firing then started from both sides and tear gas guns were going. Fellabom was back with a machine gun loaded with bird shot. He started that barking. The gas-that was fired for effect only. We have already referred to Curley's testimony that Fellaboin shot out the headlight of Jones' car, fifteen minutes after the shoot- ing had begun, and found that the overwhelming weight of evidence was to the effect that the shooting occurred at the same moment that Curley and Henderson had reached the halfway point in their ad- vance toward C. 1. 0. headquarters. It will be noted that in the testi- mony cited above, Curley stated that Fellabom was among the special 'police 100 feet south of C. I. O. headquarters, at the time Curley began his advance. On cross-examination Curley modified this state- ment and testified that Fellabom was on the west side, on "the first tile building on Cleveland Avenue." Other evidence in the record indicates that this tile building is almost directly across the street from C. I. O. headquarters. It is, therefore, clear that Fellabom was approximately 50 feet to the north west of Curley at the moment the five shots were allegedly fired from C. I. O. headquarters. With respect to these shots, Curley further testified : Q. (By Mr. Lauter.) During the entire evening of July 11th, do you know how many shots were fired? A. Five. Q. How many shots did you see coming out? A. Five out of the steps. Q. Did you see some shots other than five that night? A. I didn't. Q. Then a total number of shots you saw coming out of the C. I. O. headquarters was five? A. That is right. Upon the reliability of Curley's testimony-that five shots were fired from in front of the front door of C. I. O. headquarters depends in large measure the respondent's plea of self-defense. Of all the wit- nesses for the respondent he was the one nearest to C. I. O. head- quarters, with a totally unobstructed view of the entrance and the crowd, and had the best opportunity to observe the acts of the strikers. We believe, however, that Curley's testimony on this decisive point is 'completely unreliable. 306 NATIONAL LABOR RELATIONS BOARD As one who purported to act as a public spirited citizen, he had exhibited an active bias in favor of the respondent. As one who in the absence of Chief Switter had assumed command of the police department and with such command the responsibility for the acts of the regular and special police, he had a paramount interest in asserting that the strikers rather than the police were legally and morally liable for an encounter which resulted in the death of three strikers. This paramount interest and active bias run through his entire testimony. We have already found that Curley's testimony with respect to the selection and bonding of the respondent's employees as special police is not to be credited. Similarly, Curley's testimony that he did not issue the orders which raised the guard at C. I. O. headquarters is flatly contradicted by the testimony of Chief Switter, Officer Kraft and Officer Fellabom, and is not to be credited. Curley further testified that just before advancing toward C. I. O. headquarters, he was deputized, for the first time, by Special Officer Henderson, in the presence of Officers Kelley and Ickes. Kelley, however, testified that at this time Curley said nothing except that he was going forward. Ickes testified that Curley said nothing, as he began to advance, except that he was going to "break them up." Officer Kraft testified that he was in the line of police at this time and heard Curley say that he was going to break them up. Kraft did not mention any conversation between Henderson and Curley. Hen- derson was not called as a witness. Under these circumstances, in view of Curley's evident desire to give the,color of legality to his actions, we consider his statement that he was deputized by Hender- son to be a protective afterthought rather than a statement of fact. We believe that Curley's testimony on this point is not to be credited. Finally, Curley testified that Fellabom shot out the headlight of Jones' car at 11: 15 p. m. after the shooting elsewhere had begun. This testimony was flatly contradicted by a number of witnesses both for the Board and for the respondent. Under the circumstances de- scribed above, we found that Curley's testimony on this decisive point was not to be credited. In view of the complete unreliability of Curley's testimony on such major points, and his obvious bias and.interest, we feel justified in refusing to credit his testimony with regard to the source of the five shots. A number of other witnesses for the respondent testified that they heard shots fired, either at the beginning of the encounter, or during it, but none of, these witnesses was able to fix the source of the shoot- ing more precisely than "Cleveland Avenue," or "on the other side of the viaduct" or generally in the location of Cleveland and Ober- lin Avenues. Some testified on direct examination to a number of DECISIONS AND ORDERS 307 shots coming from the crowd and on cross-examination admitted, that they had not seen the shooting and did not know whether the police or other persons had fired the shots. A second group of wit- nesses testified that they saw flashes from cornfields, railroad tracks, and other places at some distance from C. I. O. headquarters. Both groups testified that they heard the shots come from all directions or' from north to south or from the west to the east, or from the east to the west. It is obvious that such testimony proves little or nothing, except that there was a great deal of shooting taking place in and around the vicinity of C. I. O. headquarters from the time the en- counter started until 11: 30 or later. At least 20 police and an undetermined number of deputy sheriffs were engaged in shooting tear gas, guns, revolvers, and a machine gun in all directions on Cleveland Avenue. Other police east of Cleveland Avenue near the viaduct had shot revolvers and riot guns shortly before 11 p. in. The testimony of these witnesses, while indicating the wide extent of the shooting, proves nothing as to its source. With this description of the incident at C. I. O. headquarters we turn to a concluding analysis and summary of the evidence. For at least three quarters of all hour prior to the encounter, while an unarmed peaceful group of strikers and strike sympathizers were gathered at C. I. O. headquarters, engaging in their usual Sunday night pursuits of talking, changing pickets, playing music and danc- ing, 20 regular and special police, armed with clubs, revolvers, shot- guns, gas equipment and a submachine gun, were lined up on Cleve-' land Avenue under instructions from Major Curley to expect trouble. We have analyzed and found without merit Curley's justification for his orders increasing and arming the police, and have examined and rejected the contention by the police that the crowd as a whole was other than peaceful. Even if we should credit in full the tes- timony of those officers who claimed to have heard threats against the police by one or two men in the crowd, it is apparent that under the' circumstances described such threats were not taken seriously and that the strikers cannot be held responsible for the isolated utterances of one or two unidentified drunken persons who disappeared from' the vicinity approximately half an hour before any violence occurred. Shortly before 11 p. in., when Curley and Henderson, advancing up Cleveland Avenue from the line of police 100 feet south of C. I. O.' headquarters, had reached a point midway between the police line and the strikers, Fellabom, standing on the west side of Cleveland Avenue, across from C. I. O. headquarters, fired several shots at the headlight of Harry Jones' car. Upon this point, as we have seen, the testimony is in conflict. We think, however, that the testimony of the witnesses for the Board, corroborated by the testimony of Officers Kraft and" Kelley, far outweighs the testimony of Curley, which is 134008-39-vol. ix-21 308 NATIONAL LABOR RELATIONS BOARD unsupported except for the self-contradictory testimony of Fellabom. Immediately after Fellabom fired his submachine gun, the police opened fire on the strikers. Because of the darkness and the rapid succession of events, no one witness was able to observe more than a segment of this incident and what immediately followed. The whole, therefore, can be understood only by a synthesis of the pertinent testi- mony of a number of witnesses : Beckner, standing on the steps of C. I. O. headquarters looking south, saw the shooting begin from a point in the immediate vicinity of Harry Jones' car, parked on the west side of Cleveland Avenue, across from C. I. O. headquarters, just at the moment that Henderson and Curley were approximately midway between the police and the crowd at headquarters. Beckner, however, did not see Fellabom fire at the headlight. Walter Meyer, whose car was parked directly across from C. I. O. headquarters, behind and slightly north of Harry Jones' car"heard Fellabom fire two shots at the headlights of Jones' car, but did not see Henderson and Curley. Adams, who was in Cole- man's apartment on the floor above C. I. O. headquarters, heard the first shots fired from the west side of the street, in front of C. I. O. headquarters, approximately where Fellabom was standing. Swarm, on the first floor of the respondent's district office building, saw a first and second volley of shots fired in front of C. I. O. headquarters. As noted above, Fellabom fired a second volley from his position on the west side of Cleveland Avenue across the street from C. I. O. head- quarters, after all the alleged firing from C. I. O. headquarters had ceased. Swarm's testimony, therefore, indicates that the first volley, like the second, was fired by Fellabom. Officers Ickes, Kelley, and Kraft, standing in the line of police 100 feet south of C. I. O. headquarters and facing it, heard four or five shots in rapid succession from "out along in the vicinity of C. I. O. headquarters," but did not see the shots and did not see Fellabom fire his submachine gun. They testify that immediately after hearing the four or five shots, they fired gas projectiles from their gas guns. Swarm testified that after the fifth shot was fired, the police started to shoot tear gas. Fellabom, however, asserted that the police fired gas bombs at the strikers before a first shot was fired from C. I. O. headquarters. Assuming that with relation to the sequence of the four or five shots and the gas bombs, these witnesses are telling the truth, the discrepancy between the testimony of Swarm and the officers south of C. I. O. headquarters and that of Fellabom across the street from the crowd, can only be explained by the fact that Fella- bom first fired his submachine gun at the headlights of Harry Jones' car, that Ickes, Kelley, and Kraft and other police officers, hearing these shots in the vicinity of C. I. O. headquarters, fired their gas guns and other guns at the crowd, and that Fellabom, seeing the gas bombs. DECISIONS AND ORDERS 309 flying through the air, opened fire at C. I. 0. headquarters with his" submachine gun. Thus, all those present, except Fellabom, heard Fellabom's shots as shots from the strikers and Fellabom seeing the police open fire, continued to shoot his submachine gun. We regard Fellabom's contradictory testimony on this point as an attempt to confuse the issue and thereby avoid responsibility for the incident which touched off the encounter. In view of the fact that witnesses to a sudden shooting are notori- ously inaccurate as to certain details, we regard the discrepancy be- tween the number of shots reported by Meyer and those reported by the witnesses for the respondent as unimportant. Several witnesses for the respondent testified that the shots were fired in rapid suc- cession, thus indicating the probability that the shots came from a machine gun and that any estimate of the number of shots is at best an approximation. Jones' testimony that there was a bullet hole in his right headlight and another through his windshield, while lending support to Meyer's version of two shots, is inconclusive, since there were a number of other holes in the radiator of Jones' car, and it is obviously impossible to know whether every shot fired from Fellabom's machine gun registered on Jones' car. Fellabom's testimony that he used only birdshot in the submachine gun is contradicted by the testimony that there was a bullet hole in the right headlight of Jones' car, which Fellabom admitted having shot out with his submachine gun. Moreover, although Curley would not state what ammunition Fellabom used that night, he testified that the usual equipment for the machine gun was three magazines of regular 45 bullets and three of 45 birdshot. In sum, the testimony of these witnesses with regard to the source, time, and nature of the first shots which provoked the shooting by the police indicates that they were fired by Fellabom standing across the street from C. I. 0. headquarters. Four witnesses for the respondent, however, claim to have seen flashes of shooting or shots from an unidentified person at some other point. With regard to the same four or five shots-and these are the only shots alleged to have been fired from C. I. 0. headquarters- Curley claimed to have seen five shots fired from in front of the front steps of C. I. 0. headquarters; Pauli claimed to have seen the flashing of guns from the front and side windows of C. I. 0. headquarters; Fellabom claimed to have seen a first shot or flashes from a gun fired from the top two feet of the doorway of C. I. 0. headquarters; and Lustig claimed to have seen five shots fired by a man standing on the sidewalk eight or ten feet from the building. For reasons already indicated, we believe their testimony is either false or incredible. As against these contradictory assertions, three witnesses for the Board- Beckner, Hardesty, and Veto-who were standing in or near the door- 310 NATIONAL LABOR RELATIONS BOARD way of C. I. O. headquarters at the time in question, denied that any shots were fired by the strikers from the doorway or any other place in the vicinity of C. 1.-0. headquarters ; and Wilbert Coleman, the occupant of the second floor, testified that he heard no shots from downstairs in the building. We regard it as significant, although not conclusive, that up to the very moment of the encounter, no witness claimed to have seen any person in the crowd of strikers with any weapon, and that after the encounter, the police found no weapons, except Jones' pocket knife, on the person or in the possession of the 165 men arrested. From the whole record, we find that the police, armed and for- warned by Curley to expect trouble, and made restless by the sound of shooting from the viaduct, opened fire at C. I. O. headquarters im- mediately after Fellabom fired his submachine gun; that the shots which the police heard and attributed to the strikers were in fact the shots fired by Fellabom ; and that no shots were fired by the strikers. We turn now for a moment to the respondent's contention that the strikers had assembled at C. I. O. headquarters with a preconceived plan to rush the police, enter the mill, and remove the employees who had returned to work. This contention rests largely upon the testi- mony of Officers Moore and Kraft. Moore testified that at about 4 p. m. on July 10, while he was on duty with Officer Kraft, and Special Officers Hodge and Henderson, one Mike Rudak emerged from C. I. O. headquarters, approached the car in which the officers were sitting and said, "You officers had better watch, they are coming down and get you. I am a friend of the police." Moore stated that Rudak then walked back to C. I. O. headquarters, spoke to several fellows, and was shoved out into the street, from which Moore picked him up and took him to jail. "You could tell from the way he talked," Moore added, "that lie had had a few drinks." Thereafter, Moore told the other officers, "You had better watch out a little bit." Officer Kraft testified that between 6 and 6: 30 p. in. on July 11, while he was on duty with Special Officers Henderson and Kriger, a man called "Humpy" walked out of C. I. O. headquarters, approached the post where the officers were stationed and said, "You better get out . . . big trouble tonight, 11 o'clock. Between 500 and 1000 coming down. They will kill all of the police and go into the mill and get the slabs." "He couldn't say `scabs,"' Kraft testified. "He said `slabs.' That is all lie said to us fellows. He turned around and went back up to C. I. O. headquarters." Kraft also stated that "Humpy" had had a couple of drinks. Kraft further testified that when he reported this incident to Curley, Curley said he would send more men to that post. DECISIONS AND ORDERS 311 Both of these stories are apparently versions of the same incident. We regard them both, if true, as without significance. Apart from the differences in the specific language attributed to Rudak or "Humpy" and the discrepancy in the date and the time of day on which the statements are alleged to have been made, it should be noted that Curley's testimony contains no reference to any such warning as that reported by Kraft, but was limited specifically to rumors which he had received as a result of the meeting of the strikers at Oak Knoll Park, that afternoon. Furthermore, Switter testified that before he left Massillon at 9: 30 p. m. on July 11, he had heard no rumors of any kind with regard to any threatened activities by the strikers. If hike Rudak was arrested on July 10, it is clear that Switter would have been informed of his alleged threats, had they been regarded as sufficiently serious to warrant action; and similarly if "Humpy" had informed three officers between 6 and 6: 30 p. m. on July 11 of a plot to kill the police, it is reasonable to suppose that Switter, who at that time was still in charge of the police department, would have been notified or that Curley would have mentioned it in his testimony. Moreover, there is no evidence that any of the regular or special police, except the six regularly assigned there, reported to C. I. O. headquarters that night upon their own initiative as a result of these or any other rumors. As noted above, they were all instructed to report there by Curley; and it is clear that these threats were not the basis for Curley's orders. Switter testified that upon his return to Massillon Curley had stated that he raised the guard at C. I. O. headquarters "because he got rumors from a source he did not want to disclose that the pickets were going to crash the line and stop them from going into the mill at the 11 o'clock shift." At the hearing on July 21, 1937, Switter testified that Curley had not yet told him the source of the rumors which caused him to raise the guard. Since Curley testified to no- rumors except those which he had received from the Oak Knoll Park meeting, and Switter had heard no rumors at all, we are inclined to believe that this statement to Switter was merely Curley's ad hoc explanation to justify the results which followed his countermanding of Switter's orders. Officer Moore testified that on July 10, one Burke, a former captain of the picket post, in a conversation with Moore and Special Officer Hodge had stated, "They will know who is running this God damn show in 48 hours." Wilbert Coleman, an employee of the respondent, who occupied the second floor of the house in which the Union had established its headquarters, testified that at about 7: 15 p. in. on July 11, he saw men whom lie could not identify picking in the ground with flashlights and a stick and carrying stones toward the 312 NATIONAL LABOR RELATIONS BOARD front of" the building. Robert Adams, a plasterer, whose son was employed by the respondent, testified that between 6 and 7 p. in. on July II,.he overheard a "red-headed American" tell Mark Turkey, a member of the union, " ` You keep your men out and we'll keep ours out' . . . I heard Mr. Turkey said `Well, I will never be out.' He said `You get yours out.' He said `We will get ours out.' . . . this American fellow said `I feel sorry for the colored fellow, but the damn niggers have got it coming to them. If they get killed they will just have to take it."' He testified that shortly after the first shooting was over "a car came up around the corner and stopped and they got out and my neighbor hollered and asked `What is going on down there?' One fellow says `They are having hell down there.' He says `Anybody hurt?' He says `Yes, we killed two of them damned city cops.' He said `How do you know.' He said `We saw them fall.' So this other fellow got out of the car and he walked up to another fellow and says `You fellows are from Canton. Aren't you?' He said `Yes.' `Well you had better get the hell out of here before they get up here' and another fellow ... said `Is that thing in the car?' He said `Yes.' `Well,' he says `You had better get it out of here because they are liable to break through up here at any time.' And the fellow in the car got out and he says `Did you see Joe?' He said `No.' `Well,' he says `we ought to find Joe.' They did not call no last names and my daughter was asking me. I says . . . `Who is that fellow got out of the machine.' She says `Tony Dimando. That is the only one I know.' 15 44 In the light of the events which took place before C. I. O. head- quarters, these sensational but vague statements, anonymous rumors, and acts by unidentified persons, freely attributed to the strikers, carry no weight. In the first place, since Burke's statement, the incident described by Coleman, and the remarks of the "red headed American" were not reported to Curley, they cannot be considered as a basis for his orders. In the second place, it is undisputed that the crowd at C. I. O. headquarters made no attempt whatsoever to rush the police, enter the mill, and remove the employees who had returned to work. On the contrary, at the first shots, the strikers fled in panic. With 20 regular and special police already lined up across Cleveland Avenue, armed with every weapon in the possession of the police department, and an undetermined number of deputy sheriffs in the vicinity, ready at a moment's notice to drive up in cars loaded with tear gas, such an attempt by an unarmed crowd of 200 people, including women and children, would obviously have been suicidal. Not only was no such attempt ever made, but the president of the Massillon lodge and the vice president of the Canton lodge 11 Dimando was not further identified. DECISIONS AND ORDERS 313 of the S. W. O. C., noting the ominous attitude of the police, were on the point of telling the crowd to go home, when the police opened fire. In the third place, no police were killed, wounded, or even injured, except by the fumes of their own tear gas. The strikers were the victims, not the aggressors, in an unprovoked attack. After midnight, as soon as the Canton police in their armoured car had cleared the streets of people in the vicinity of C. I. O. head- quarters, a "mopping up" squad of special police and deputy sheriffs, led by Foreman and Special Police Officer William Henderson, broke into rooming houses near Cleveland Avenue occupied by members of the Union, arrested 165 men, and, with the assistance of the National Guard, hauled them to jail. At 2 a. in. on the morning of July 12, John Angelo, a striker who lived on the second floor of a three-story rooming house on McKinley Avenue, a block and a half from C. I. O. headquarters, was awakened by a noise which shook the house, "hollering and breaking doors in the building." Two deputy sheriffs entered his room, thrust guns against his chest, hit him with a blackjack, and threw him into the hall. Other armed deputy sheriffs roved through the hall- ways, crying, "Now, you rats, we have got you," and routed out the other occupants of the house. Fifteen or 20 roomers, most of them barefoot and half clad, including one woman, were taken downstairs and lined up outside the building. Other men from neighboring rooming houses were searched and added to the line-up. Angelo testified that Special Officer Henderson in the company of several other special police officers, then asked, "How many C. I. O.'s are here and lift up your hands." Half to three-quarters of an hour later, 10 or 12 of these men were loaded into a National Guard truck, taken to the Massillon City Jail and then to the Canton Jail, where they were photographed and fingerprinted. After 2 days in the Canton Jail, Angelo, with a number of other men, was returned to Massillon, where he signed a waiver of his right to sue the city of Massillon and was released. He testified that when the deputy sheriffs entered his room, they showed him no warrant of arrest. Christ Conzas, a striker, who occupied another room in the same rooming house, from his window observed the police enter houses on McKinley Avenue and heard doors breaking in his building. A short time later, two officers with guns and a flashlight broke down the door of his room, searched the room, and ordered him down- -stairs. There, he recognized Bill Henderson, the foreman for whom he had worked in the mill, and entreated Henderson to release him. "You belong to the C. I. 0.," said Henderson, "and you have to go down." Other men were taken out from other houses "some of them without shoes, some without clothes, some without dresses, some with- 314 NATIONAL LABOR RELATIONS BOARD out shirts." Conzas with the others was taken in a National Guard truck to the Massillon Jail, where he remained until Tuesday, July 13, 1937. Conzas was shown no warrant of arrest by the officers who broke down the door to his room. Mark Turkey, a member of the C. I. 0., who lived with his wife and three children in a rooming house on Fourth Street, about three and a half blocks from C. I. O. headquarters, was awakened by his wife at five minutes of three. Half dressed, he went to the kitchen where several deputy sheriffs, armed with a revolver and a shotgun, who had broken open the house door, asked for his guns and ammuni- tion. When Turkey replied that he had none, they pushed him up- stairs, ordered four men who occupied rooms there out of the build- ing, tore up the beds and mattresses as they searched the rooms, broke into a trunk, where Turkey's son kept a stamp collection, and ordered Turkey downstairs to wait for his "bus." A few moments later Turkey and the four roomers were loaded into a National Guard truck and taken to jail, in Canton, where they were photographed and fingerprinted. Turkey remained in jail at Canton until 4 p. in. Wednesday, July 14, 1937, when he was removed to the Massillon jail and released after signing a waiver. Turkey testified that-when the deputy sheriffs broke into his -house, they asked him whether he was a member of the C. I. O. but did not show him any warrant of arrest. A total of about 165 men, all of them apparently members of the Union, were thus arrested and placed in jail. Hardman, who re- turned to Massillon after the shooting and conducted their examina- tion, testified that none of the 165 had been shown warrants, that all had been arrested at places other than the scene of the riot by special police officers, deputy sheriffs, and National Guardsmen, and-that al- though most of the men had been released from jail by Thursday, about four were still held, at that time, four days after the shooting. He also testified that of the 165, only one (Harry Jones) was charged with carrying any kind of weapon.45 We come, finally, to the question of whether the respondent is responsible for the events we have described. From a careful examination of the record, we think that the answer is plain. As early as June 9, Carl Myers, the respondent's Acting District Man- ager, had attempted to persuade Chief Switter to use violence against the strikers, "to take such action as the Chicago police did and put them where they belonged" ; "they knew how to handle the situation if we did not." On that day Myers donated to the Massillon police department for "any situation which might arise," the gas and gas equipment which was used by the police against the strikers on July 41 As stated above Jones was carrying a pocket knife. DECISIONS AND ORDERS 315 11. On June 13, after the meeting of the Chamber of Commerce in which the members of the Law and Order League had praised the Monroe police for smashing the picket line at the respondent's plant at Monroe, Michigan, Carl Myers again urged the Massillon city officials to use violence against the strikers : "It was a funny thing that a little town like Monroe could build up a police department big enough to get their mill operating again and control the situation and it was damn funny we couldn 't do anything." In a pamphlet issued by the respondent during the strike, entitled "What the Editors are saying about the Republic Strike-Reprinted by Republic Steel Corporation," the respondent set its seal of approval upon the actions of the Monroe police, and the American Legionnaire's and volun- tary police who aided them and stand with them. They have performed a healthful public service and they deserve high commendation and support ... These men have used forceful methods, but no more forceful than necessity demanded . . . They simply are undertaking to uphold American law, order, and individual liberties .. . As described ,above, the respondent through Chief Accountant Angstadt and Superintendent Peppard, the members of the Law and Order League, and the Back-to -Work movement succeeded in exerting such pressure upon the city officials that , against their better judgment, they finally agreed to accept Curley 's assistance and swear in as special police officers at least 32 of the respondent 's employees, including Foreman Henderson . That these special police officers were not dis- posed to be neutral was a fact generally known in Massillon. Of the 66 candidates which Peppard, Angstadt and Beckiier had submitted to the city officials on the morning of July 9, 29 had signed the Back-to- Work petition, as had 19 of the 32 men chosen by Major Curley. With regard to the temper of the members of the Back-to-Work movement, the Reverend Hess, a witness for the respondent, testified, "From my most sober judgment I am positively of the opinion that if we had not had.the police there on the night of the riot that we might have had not two men killed but maybe 50 or 100 or more killed . .. My reason is this, contacts that I had had with men, the Back-to-Work men . . . that they were in no temper to stand any more ... I tes- tify that it was my judgment, taking the balance of two factors in the situation , from all sides , that we would have been staggering for this whole country, if we had not had the police there." The Reverend Hess was not aware that, at the time of the encounter, five of the respondent's employees, who had signed the Back-to-Work petition, who had been bonded by the respondent, and who had been warned by Curley to expect trouble, were special police officers whom 316 NATIONAL LABOR RELATIONS BOARD Curley had armed and stationed in the vicinity of C. I. O. headquarters. The respondent called none of these five as witnesses nor the three other employees who were special police officers present during the incident. Apart from their connection with the Back-to-Work movement, the respondent's employees who were appointed as special police officers were obviously not impartial. It will be remembered that Hardman and Switter, had reviewed the 66 names submitted by Peppard and Angstadt and had rejected most of them as too excitable, and that General Marlin had waived any question as to the fitness of the re- spondent's employees for the police force by stating that it was no time for neutral men. Thus,-prior to the encounter, the respondent had armed the police force with its gas equipment, staffed it with a foreman and 31 other employees, many of whom belonged to a group bitterly opposed to the strike, and had urged violence against the strikers. In addition, the respondent had approved, if it had not actually connived at, the ap- pointment of Major Curley whose activities we have already found were conducted in the interest of and on behalf of the respondent. These acts of the respondent achieve further significance in the light of a hitherto undescribed event which occurred on July 11. John Veto testified that at 5 o'clock that afternoon, as he was returning to his home by way of Cleveland Avenue, near C. I. O. headquarters, he passed within three feet of two special police officers, seated on chairs with their backs to the mill, and heard one of them say, "We are going to clean them up tonight." Veto testified that the man- who spoke turned around, "and I recognized him as Bill Hender- son, a chipper foreman in the mill .. . He said `Where is your picket card' and I said `I didn't have any because I am not on duty."' Veto also testified that the other special officer did not turn around and that he did not recognize him. To rebut this testimony, the respondent's counsel asked Officer Kraft: Q. (By Mr. Pontius.) During that afternoon I will ask you whether Mr. Henderson said to you-that is, this special officer Mr. Henderson, about five o'clock in the afternoon said to you this, or this in substance : "That we are going to clean them up tonight?" A. He never said nothing like that to me. Kraft, however, testified that on that afternoon there were three officers detailed to and present at this post : himself, and Special Of- ficers Henderson and Kriger.46 It will be remembered that Veto tes- 49 Kriger , like Henderson, is an employee of the respondent for whose bond the respondent was billed. DECISIONS AND ORDERS 317 tified that he did not recognize Henderson's companion. It is obvi- ous, therefore, that Kraft's denial that Henderson "never said noth- ing like that to me" does not preclude Henderson's having made the statement to Kriger. We regard it as material that the respondent called neither Henderson nor Kriger as a witness and made no show- ing as to the unavailability of either. At 9:30 p. in., after Switter and Hardman had left Massillon, Curley countermanded Switter's orders, raised and armed the guard at C. I. O. headquarters, and directed Fellabom to a post across the street from the strikers, with instructions to use his submachine gun. At approximately 11 p. in. when Curley and Henderson took it upon themselves to induce the crowd of strikers to go home, for no other avowed reason except that there were too many of them, Fellabom, pursuant to Curley's authority, used his submachine gun and shot out the headlight of Jones' car. As noted above, these shots were the overt act which precipitated the shooting by the other police officers. After shooting about 25 tear-gas projectiles, Officer Moore sent Gray, one of the respondent's foremen, to the Union Drawn Steel Company for more gas. Between 11: 15 and 11: 30 p. in., Curley telephoned from the respondent's main office to the Union Drawn Steel Company for more gas, and dispatched a police cruiser which returned with at least 25 cartridges of tear gas. Of the gas thus donated by the respondent prior to and during the encounter, Curley, Ickes, Moore, and Kelley testified that they fired a total of 158 gas projectiles or bombs at the strikers during the evening and that other special and regular police threw or fired an undetermined number of gas bombs or projectiles. The fury of the attack upon the strikers, led by Curley and Henderson, is matched only by the thor- oughness of the round-up, led by Henderson, in which all persons within a radius of three or more blocks from C. I. O. headquarters were arrested without warrants and incarcerated for several days, for the crime, apparently, of belonging to the Union. We are of the opinion, from an examination of all the facts, that if Curley had not seized the opportunity when Switter had left Mas- sillon, to take command of the police force, to increase and arm the guard in front of C. I. O. headquarters, and to instruct the regular and special police to expect trouble, the attack upon the strikers would never have occurred. That Fellabom's shooting at the head- light touched off the attack may have been a tragic accident; but it is clear that, if Curley had not issued his unauthorized orders, neither Fellabom nor 13 of the other police would even have been present at C. I. O. headquarters on the evening of July 11. The attack was led by Curley, the respondent's agent, and by Henderson, its fore- man ; at least eight of the respondent's employees as special police officers were present at or participated in the attack; all the gas and 318 - NATIONAL LABOR RELATIONS BOARD gas equipment for the attack was supplied by the respondent. The respondent had publicly approved the use of violence against strik- ers by the.police of Chicago and Monroe and had urged the Chief of Police of Massillon to follow the example of the police of those cities. When Switter left Massillon, Henderson was overheard to say, "We are going to clean them up tonight." From the whole rec- ord we find that the respondent is responsible for the attack upon the strikers. B. Canton Of the respondent's plants in Canton, two are directly involved in this proceeding : the Canton Works (Central Alloy District) which employs between 5,000 and 6 ,,000 employees ; and a tin-plate mill, employing approximately 650 employees, which the respondent acquired on July 1, 1936, from the Canton Tin Plate Corporation. 1. The Plan of Employee Representation-(Central Alloy District) Canton Works The Plan of Employee Representation was introduced at the Canton Works in June 1933 and, with minor amendments made in 1934, remained in operation until April 1937, after the decisions of the Supreme Court upholding the constitutionality of the Act. There- after, it was succeeded , as in Massillon , by the Employees' Repre- sentative Association , which lasted until July 1937, when the Em- ployee Representatives, who had been active in both the Plan and the Association , formed a new organization , the Steel Workers Union- of America, which purported to be independent of the respondent. The formation and activities of the Association and the Steel Workers Union will be discussed hereafter. The Plan at the Canton Works, as it existed until the latter part of April 1937, was substantially the same in structure and 'operation as the Plan at the Massillon Works. It is therefore unnecessary to describe it at length . It is sufficient to state that the respondent formulated and introduced the Plan, without submitting it to a vote of its employees ; that throughout the existence of the Plan the respondent paid the Employee Representatives for attending meet- ings, during and after working hours , as well as for handling griev- ances; and that, down to the most minute item , the respondent defrayed all the expenses and furnished all the facilities for the operation of the Plan. From the whole record, we find that the respondent has dominated and interfered with the formation and administration of the Plan of Employee Representation (Central Alloy District ) Canton Works and has contributed financial and other support to it. - DECISIONS AND ORDERS 319 2. The Plan of Representation of Employees-Tin Plate Mill In August 1933 the Canton Tin Plate Corporation, then under in- dependent ownership, inaugurated the Plan of Representation of Employees in its tin-plate mill. After July 1, 1936, when the re- spondent purchased the mill, it continued this Plan in effect un- changed until April 30, 1937. With slight variations, this Plan substantially resembled the Plan at the Massillon Works. Neither at the time of its inauguration nor subsequently was it submitted to a vote of the employees. _ After July 1, 1936, the respondent con- tinued to pay the Employee Representatives a dollar an hour for time spent during and after working hours at regular and special meetings, and continued to defray all expenses and furnish all facilities for the operation of this Plan. On April 30, 1937, the respondent announced that in view of the Supreme Court, decisions upholding the constitutionality of the Act, it would cease to pay the Employee Representatives. The Employee Representatives then sought to resign and discontinue the Plan, but on the solicitation of Sam Davey, then superintendent of the mill, decided to remain until the end of their term. At a regular meet- ing of the Employee Representatives on May 8, 1937, Sam Davey in- troduced Frank Geltz, Chairman of the General Body of Employee Representatives under the Plan and of the Association at the Canton Works, who explained the purposes of the Association and sought to enlist the support of the Employee Representatives. No action was taken on this proposal. In August 1937, according to Edward Kirk- land, Secretary.of the Plan, when the fiscal year of the Plan ended, no plans had beeri made for its continuation, because "we never asked the officials of the Republic Steel Corporation whether or not they wanted to continue the Plan." From the whole record, we find that the respondent has domi- nated and interfered with the administration of the Plan of Repre- sentation of Employees at its tin-plate mill, and has contributed financial and other support to it. 3. Events preceding the strike On July 2, 1936, shortly after the Union had begun its campaign to organize the employees in the Canton-Massillon Area, the respondent issued its statement, described above, announcing that "Republic stands for the `Open Shop' principle . . . Every Republic employee owes a duty of loyalty to the Company so that its best, interests may be served. Conduct detrimental to the interests of the Company and which may disrupt the satisfactory relations between employees and management will not be tolerated." - ' 320 NATIONAL LABOR RELATIONS BOARD The circumstances surrounding the discharge of Victor Arias on August 2, 1936, serve to illustrate the method by which the respond- ent at this time sought to give effect to this policy . Arias had been continuously employed by the respondent since 1927 , except for sev- eral weeks in May 1935 when he took part in a strike at the re- spondent's Berger Manufacturing Company plant . When he applied for reinstatement, Superintendent Ellaser told him he had been ac- tive during the strike and "that is bad on your card." Several weeks later, in June 1935, Arias was reinstated. At that time, his fore- man, David Carnes, offered him a job as a checker if he would re- port the activities of the men . Arias refused. In July 1936 Arias joined the C. I. O. and was the first organizer in the Canton area. As such, he assisted Howard Porter and the other outside organizers sent- to the Canton-Massillon district. It will be remembered that these organizers were given permanent shadows in the form of Long and McCallister , plant policemen at the Union Drawn Steel Company, whose special business it was to follow them. In the latter part of July, Arias conducted meetings on farms and obtained 25 applications for membership and signed up eight members for the union. On August 9, when he returned from a week's vacation , lie was told to stay home , that he would be called when needed. "Why are they holding me out?" he asked Graham, assistant to superintendent Ellaser, "is it anything concerning my work? " "No," replied Graham, "Not that I know of. There are activities that you are in that I don't know about or exactly what it is." Superintendent Ellaser informed him : "Vic, you are in Dutch. I don't think I can do anything for you." Arias pleaded his long service with the respondent , his satisfactory work, his ne- cessity to support his parents. Ellaser replied, "I am sorry. I can't do anything for you." Arias then left Canton in search of a job. In April 1937, upon his return , he met Frank Geltz, Chairman of the General Body of Employee Representatives under the Plan, who offered to help him. Geltz, however, was unsuccessful . He reported that he had seen Ellaser who said that Arias had a company police record, and that Ake, the employment manager , had told him that on his record Arias talked too much. During his nine years' employment by the respondent , Arias had received at least three promotions ; at the time of his discharge he was an inspector in charge of the chipping bed, earning approxi- mately 90 cents an hour . Since his discharge on August 2, 1936, his total earnings , up to August 11, 1937, have been $164.40. He has not received regular and substantially equivalent employment elsewhere. Although the respondent in its answer denied that Arias DECISIONS AND ODUDEItS 321 was discharged because of his union activities , it produced no wit- nesses and offered no evidence to rebut Arias' testimony. We think it clear that the respondent discharged Victor Arias for the reason that he joined and assisted the Union . We find that the respondent, by this act , discriminated against Victor Arias in regard to hire and tenure of employment , thereby discouraging membership in a labor organization. Having thus plainly warned its employees that it was prepared to enforce its statement of July 2, the respondent took further repres- sive steps to halt the growth of the Union. At the Canton Works and the tin-plate mill, its activities paralleled those already described at the Massillon Works. Employees were called together at safety meetings once or twice a month , where a superintendent and fore- man repeatedly extolled the virtues of the Plan and threatened em- ployees with the loss of their jobs if they joined the "outside" union; employees were asked by a superintendent to sign petitions that they were satisfied with the Plan and were informed that the C. I. O. would never succeed; active union members were cajoled by super- visory employees not to waste their time passing out handbills, ad- monished to watch their step, and warned to stop trying to organize; a superintendent spoke with approval of a pamphlet which ap- peared in the plant, purporting to show that the C . I. O. was a revolutionary organization , controlled from Moscow, whose ultimate purpose was to overthrow the government of the United States by force and violence .4T On March 5 , 1937, the respondent published its statement of open- shop policy in the newspapers , as described above. Carl Myers read the statement to the General Body of Employee Representatives, to whom he-promised the same degree of cooperation from the man- agement that they had received in the past. Besides Arias, three em- ployees, whose cases we discuss below, were discharged for union activities at about this time. Despite these acts of interference and coercion by the respondent, the Union continued to grow. On February 1, 1937, All Nations Lodge No. 1200 was established in Canton for the employees of the Canton Works and the tin -plate mill . A number of the Employee Representatives joined the Union, and in certain departments of the plant the Union claimed to have achieved a membership of a large majority of the employees. In the tin-plate mill, where the .Union claimed a membership of approximately 90 per cent, the respondent sought to coerce its em- ployees to leave the Union by repeated threats to close the plant. 4'+Join the C I. 0. and Help Build a Soviet America, published by the Constitutional Educational -League, Inc; New Haven, Connecticut. 322 NATIONAL LABOR RELATIONS BOARD Kenneth- Poorman, a member of the Union, testified that in October 1936 at a safety meeting in the tin-plate mill, James Davey, then operating superintendent of the mill, informed the employees that "this is an old and obsolete mill. The Warren mill is of a newer type . . . If we stay out of labor trouble this can be the mill to operate." Although Davey denied having used the specific lan- guage attributed to him on this occasion, we are not impressed with his denial. He admitted having told employees on another occasion that the mill was old and obsolete and that he.hoped they would stay out of labor troubles. And even from Davey's own studied and evasive account of .his remarks at. the- October safety meeting it is clear that the employees could reasonably have taken away only one impression-that the respondent would shut down the mill if they joined the C. I. O. In January 1937 Superintendent Thomas approached Homer Downerd, president of Lodge No. 1200, and asked him why he had become so active in organized labor. According to Downerd, Thomas said, "'Do you think you are doing right?' and I said `Yes, I think I have as much right to belong to organized labor as anyone else has.' And lie said `Do you know what you are going to do?' and I said `Yes, I do. We are going to put this organization across' and he said `No, I will tell you what you are going to do-you are going to eventually shut down this plant and that will put not only me, but everyone else out of work and unless you quit, you will shut down the tin plate plant."' . In February 1937 Superintendent Thomas saw Martin Beckner, vice president of Lodge No. 1200, passing out handbills near the Canton Works. "Beckner," said Thomas, "you do not seem to be the same sort of a fellow, the kind of fellow that would be messing around with a bunch of radicals." "I told him," Beckner testified, "that I did not realize that I was a radical and he said, `Don't you realize that Republic Steel will be closed down and won't operate any more?"' - On May 5 a notice appeared on-the bulletin board at the tin-plate- mill announcing that the mill would be shut down, until further - notice, and that employees should call Thomas later in the week and find out when operations were to be resumed. The tin-plate mill remained closed until May 24, the day before the strike. It ap- pears that the production at the mill during April and May in terms of gross tons was as follows : For the week beginning April 5, 541; April 12, 888; April 19, 609; April 26, 921; May 3, 315; May 10, Q; May 17, 0;• May 24, 650. Samuel Davey, then superintendent of the Canton Tin Plate Division, testified that there was -no -produc- tion for the weeks of May 10 ' and .May, 17 chiefly because a strike DECISIONS AND ORDERS 323 had been called at the plant of the Canton Enamelling and Stamping Company on April 29, at which time all orders from that company ceased, and that the respondent had in process or finished at that time approximately 1,400 tons in the plant, equivalent to two weeks' work. This ostensible reason for the shut-down is vitiated, however, by reference to a number of events which occurred before and after May 5, when the shut-down was announced. On May 8 Beckner telephoned Superintendent Thomas and asked when the mill would start up. "He told me," Beckner testified, "he did not believe the mills would start up until we got rid of that union." During the strike at the respondent's plants in Canton, Thomas told Beckner, "'It looks like the Tin Plate had made a mistake. The rest of the mill is going to resume but I do not think the Tin Plate will ever resume again.' And he felt it was all the fault of the men organizing because we had 90 per cent of the organization at that time." Since the-respondent did not call Thomas as a witness and made no show- ing as to his unavailability, these and the earlier threats stand uncon- tradicted. Furthermore, the respondent was in the sole possession of proof in support of its allegation that a decrease in orders caused the shut- down. We are.not satisfied that, in view of the circumstances de- scribed above, it has supplied an adequate business reason for its conduct. It has not shown the amount or relative size of the orders of the Canton Enamelling and Stamping Company nor how long the strike there lasted, nor precisely to what extent that strike caused a decrease in orders. In weighing the evidence upon this point, we also take into ac- count the fact that, at this time, the respondent's Canton and Massil- lon plants were both under the supervision of Carl Myers, Acting District Manager for the one region; and that the shut-down on May 20 of the Massillon Works was caused, not for the business rea- sons alleged by the respondent, but for the purpose of intimidating and coercing the employees. - It will be remembered that on May 3 Clinton Golden, Regional Director for the S. W. O. C., wired the respondent that widespread unrest prevailed among its employees over the uncertainty of the respondent's position regarding a signed collective bargaining con- tract, that this unrest had been accentuated by the lay-off of several hundred union members at the Canton and Massillon Works, and that the Union urgently requested a conference to negotiate a signed, written contract. It thus appears that on May 5 the respondent gave a double answer to the union : Voss replied to Golden that he saw no necessity for a signed contract, but was, willing to -arrange a 134068-39-vol ix-22 324 NATIONAL LABOR RELATIONS BOARD conference; Davey shut down the tin-plate mill, a stronghold of the Union, and locked out all but the maintenance employees.4' From the whole record we find that the respondent shut down its tin-plate mill at Canton and locked out almost all its employees for the purpose of intimidating and coercing them not to join or to dis- continue their membership in the Union. The respondent, by the foregoing acts, discriminated against its employees with respect to hire and tenure of employment, thereby discouraging membership in a labor organization, and interfered with, restrained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 4. The Employees' Representative Association After the decisions of the Supreme Court on April 12, 1937, the General Body of Employee Representatives met on several occasions in the Canton Works on company time to discuss the formation, dues, and constitution of a new organization to succeed the Plan. The precise date upon which this organization-the Employees' Repre- sentative Association-was formed does not appear. The record does show, however, that on April 24 Joseph Cox, an Employee Rep- resentative, signed a membership card in the Association and with other Employee Representatives began to solicit membership for the Association in the plant on company time.4' On April 28, according to the minutes of a special meeting of the General Body of Employee Representatives of the Plan, "the proposed amendments to the bylaws were again reviewed and it is the feeling of the General Body that no further changes should be made at this time." These amended "bylaws"-the amendments adopted April 22, 1937, referred to above 5°-became the constitution of the Association. The respond- ent's participation in the formulation of these amendments, and its modified control of the operations of the organization under them, have already been discussed. At the same meeting on April 28 a treasurer was elected and Representatives assigned to committees." A motion was carried that dues were to be temporarily waived and 48 The respondent in its brief apparently contends that no complete lock -out was ever carried out, in that 50 per cent of the men remained at work after May 10. However, Davey testified that when working the tin-plate mill employed between 640 and 680 employees ; that at the time of the shut -down (May 5 ) there were 570 employees ; that about 50 per cent of the employees, in the finishing departments, "remained at work on the shut-down"; and that when operations finally ceased on May 10, there was a complete shut-down, except for maintenance men. . 4e The signatures of the Chairman and Secretary of the General Body of Employee Representatives under the Plan are affixed to this card as Chairman and Secretary of the Association. 60 See Section A, 3. 5'The office of Treasurer did-not exist under the Plan, and apparently was the, only office in the Association for which an election ,was held. As noted above, the Chairman and Secretary under the Plan remained as Chairman and Secretary under the Association. DECTSIONS AND ORDERS 325 "some other method of raising finances, possibly through a raffle, should be used." At the conclusion of the meeting a "force report," or schedule, covering the time spent in the meeting by the Employee Representatives, was prepared, according to which the Employee Representatives were to be compensated by the respondent. Thus, as in Massillon, the new organization was, except in name, virtually identical with the old. As in Massillon, the respondent gave the Association a free hand to organize opposition to the Union. Frank Cutshall, a member of the Union, testified that on May 16 or 17 he was notified -by his fore- man to attend a meeting in the bar mill at the Canton Works. "They were going to close down the department and everybody was to go over and we was to be paid for the time we would be over there at the meeting. They said they were holding these meetings-for each particular turn, the three turns. At one o'clock they blew the whistle and the crane men, the chippers, the grinders and everybody employed in the plant, or practically so, attended. The whole department was shut down." Dan Allen, an Employee Representative, announced to the 400 assembled employees that "they were forming a union for the employees of this division of Republic Steel and they did not want any outside union. They wanted to make preparations if a strike was called to meet up near the square and make a rush for it and go down in a body. . . They were anticipating the strike. They asked ap- proval of . . . some of the men in this group." Cutshall testified that he was paid for the time spent at this meeting. On May 20, about 300 foremen and chippers at the Canton Works were notified to quit work to attend a meeting in the plant. Sammy Stokes, one of the chippers, testified that William Dunn, an Em- ployee Representative, announced that, "he was calling this meeting to explain this union plan to them, and he told the fellows that the company was expecting a strike and he wanted them all to sign a paper that they will work ... and when the strike was_ called they should meet at the public square and they would prepare a way for them to go into the mill. And so he said `I am, going to pass out these blank pieces of paper.and I want you to sign them."' Stokes testified that he was paid for his attendance at this meeting.Cut- shall, who also attended this meeting, testified that Dunn 'ainounced that the purpose of the meeting was to form an employee union for the Canton Works alone, in order not to "mix into any more troubles"; that Dunn hande& out a copy of the pamphlet previously referred to, "Join the C. I. O. and Help Build a Soviet America"; and - that Employee Representative Allen launched into an attack upon, John L. Lewis. From the whole record, we find that the respondent has dominated and interfered with the formation and administration of the Em- 326 NATIONAL LABOR RELATIONS BOARD ployees' Representative Association and has contributed financial and other support to it. 5. The strike Although the events at Canton are not set forth in the record in such detail as those at Massillon, the testimony indicates that the respondent pursued a similar course in mobilizing its forces to break the strike. The following narrative is summarized largely from the testimony of witnesses for the respondent. On or about May 18 Superintendent Cornell told Foreman Kuhns that the management intended to operate the plant in the event that the strike was called, and that he wanted the employees in the plant before it started. At 4:45 p. m. on May 25 Cornell called Kuhns to his office, told him there was to be "a meeting of the C. I. O. and it looked very much as though a strike was going to be pulled," and instructed him to have the employees come to the plant by 9 o'clock. On the night of May 25, when the strike was called, trucks arrived at the plant loaded with cots. Under the inducement of a bonus, free meals, and 16 hours' pay for 8 hours' work, a number of employees ate, lived, and slept in the plant from May 25 until July 1. At 7 p. m. on May 25, before the strike was called, 12 Employee Representatives, including Frank Geltz, Ray Lilly, Dan Allen, and other active members of the Association, met in the assembly room of the respondent's Industrial Relations Building at the Canton Works. In previous discussions this group had decided that if the strike was called they would form a back-to-work movement and seek to have a vote conducted under their auspices among the employees at the Canton Works on the question of whether the employees wished to return to work or to continue pn strike. At this meeting plans were made to hold the vote in the City Auditorium on Thursday, May 27. At 8: 30 p. m. the group conferred with Plant Superin- tendent B. R. Richardson, who expressed his approval of their pro- posed activities. At 11 p. m. the strike was called and the group retired to two rooms at the Belden Hotel in Canton, which thereafter served as the headquarters for its activities. Within a few days this committee, augmented by a number of other Employee Representatives, undertook to patrol the city, armed with shotguns, allegedly to protect the homes of non-strikers. On several occasions it held meetings of employees ;vho wished to return to work, and conferred 'With the mayor of Canton with regard to.'its demands. On June 10 T. K. Harris of the Canton Law and Order League, said of the Back-to-Work movement, "It is becoming more difficult to keep them from taking the law into their own hands." 1,2 sz What the Editors are Saying About the Republic Strike-reprinted by Republic Steel Corporation , from The Canton Repository of, June 10, 1937 DECISIONS AND ORDERS 327 As noted above, on or about July 5, a few days before the National Guard were withdrawn from the Canton-Massillon area, 56 of the respondent's employees were bonded by the respondent and sworn in as private police officers of the City of Canton. Of the 56, one, B. R. Richardson, was a plant superintendent, another, Russell Horn, was a supervisory official and at least three were members of the Back-to- Work Committee. Most, if not all, of the expenses of the Back-to-Work Committee were defrayed by the respondent. J. G. "Monk" Stewart, a super- visor of the guards, spokesman of the Back-to-Work Committee, and a roller in the mill with 10 or 12 men under him, testified that from May 25 until July 2, when the National Guard arrived, he received from the respondent for his work a total of approximately $500, cal- culated on the basis of his regular pay of $28 a day. Other members of the Committee testified that during this period they were paid approximately one and three quarters times their regular pay, or, in some instances, a bonus of $25 a week in addition to their regular pay. None of the witnesses for the respondent claimed to know who paid for the rooms at the Belden Hotel, although all admitted that no funds were collected by the Committee. It appears that Carl Lappin, an Employee Representative who acted as paymaster to the Committee for the respondent, rented the rooms in his own name. Since employees participated in the Back-to-Work Committee and since it existed in part, if not wholly, for the purpose of dealing with the respondent concerning a labor dispute, it is a labor organization within the meaning of the Act. From the whole record, we find that the respondent has dominated and interfered with the formation and administration of the Back-to-Work Committee and has contributed financial and other support to it. 6. The Steel Workers Union of America On July 13, approximately two weeks after the plants had re- opened, a number of the members of the Back-to-Work Committee whom the respondent had paid for acting as guards met at "Monk" Stewart's home to discuss the formation of an organization. Several days later Frank Geltz, Chairman of the Association, told Stewart that the former Employee Representatives, whose terms had expired in June, were also considering forming a new organization. After one preliminary meeting of the two groups, a formal meeting was held on June 20 in the Belden Hotel, where Stewart was elected tem- porary Chairman; Lilly, Secretary; and Geltz, Treasurer. On the following day, at a meeting in the Belden Hotel with Attorney Frank Bow, the name "Steel Workers Union of America" was selected, ap- plication cards drawn up, and chairmen of organization committees appointed. Although at the time of the hearing on September 15 328 NATIONAL LABOR RELA TIONS BOARD no constitution or bylaws had yot been adopted, and no membership meeting had been held, Stewart testified that all employees at the Canton Works, except supervisory employees and police, were eligible for membership and that of 3,900 eligible employees, between 2,500 and 2,700 had signed application cards for membership. Notices announcing the formation of the organization were posted in the plant; and members of the organization committees collected dues, initiation fees, and signatures to membership cards in the plant during working hours. It is clear from the record that the Steel Workers Union, like the Independent Association at Massillon, was merely the successor to the Plan, the Association, and the Back-to-Work Committee, and still the creature of the respondent. Its officers were the officers of the predecessor organizations and its active members were former Em- ployee Representatives or members of the Back-to-Work Committee. It received the same favors from the respondent as had the prede- cessor organizations. An organization with such antecedents, formed under such conditions, necessarily could not represent the free choice of the employees. From the whole record, we find that the respondent has dominated and interfered with the formation and administration of the Steel Workers Union of America and has contributed support to it. 7. The discharges The complaint, as amended, alleges that three other employees at the Canton Works, besides Victor Arias, were discriminatorily dis- charged. The record shows that all three were discharged or laid off by Superintendent Hopkins. We take up their cases in chronological order. Milee Ugranovich,. Ugranovich, a member of the union, had been employed by the respondent since 1934 as a grinder in the billet sheds. In 1935 he participated in the strike at the respondent's Berger Manufacturing Company plant. He testified that when he returned to work after that strike Edward Hopkins, superintendent of the billet sheds, "fired him off the job" for about a month, saying, "You got a job on the picket line and I cannot use you any more." Ugrano- vich then applied for his job to Superintendent Baxter, who, in the presence of Hopkins, asked Ugranovich whether he had been on the picket line "and he asked me `How long have you been in this coun- try?' and I told him `About 20 years' and he said `Are you still crazy ... I will give you your job back if you do not do that any more' .. He told me I would have to stick with the company." In December 1936 and January 1937 Ugranovich attended a number of safety meetings in the plant, at one of which, he testified, Super- DECISIONS A-AD ORDERS 329 intendent Hopkins said, "Don't belong to the outside union. You got to stick with the company union ... If I find any more men (belong to the) outside (union), he cannot work for me." Ugranovich testi- fied that on February 11, 1937, lie was summoned to Superintendent Hopkins' office where Hopkins said, "You have got some slow work, five and six weeks on a job ... Don't you mind that strike in 1935 ... I give you a chance that time and still now there is something else outside, some kind of a name, C. I. O.-and you are in it already." Ugranovich was then discharged. The respondent contends that Ugranovich was discharged on Febru- ary 8, 1937, not for his union activities, but because he came to work in an intoxicated condition. Superintendent Hopkins testified that, although he himself had not seen Ugranovich in an intoxicated con- dition, Foreman Eichelberger reported to him that at midnight both he and the grinder boss had smelled alcohol on Ugranovich's breath and had sent him home with instructions to return in the morning, and that at 9 o'clock the next morning Hopkins had laid him off indefinitely because he had come to work intoxicated. "He tried to tell me that he was not intoxicated. I told him he was because my two foremen had told one that." Hopkins also denied some, but not all, of the statements attributed to him by Ugranovich. He denied that he had mentioned the C. I. O. to Ugranovich at the time he discharged him or said that his work was slow, but asserted, on the contrary, that in his opinion Ugranovich was a capable worker and not slow. - Eugene George, a grinder foreman, testified that at 12 o'clock on February 8, when Ugranovich reported for work, he smelt a strong odor of liquor on the man's breath, noticed that the surface of the steel on which Ugranovich was working had circular instead of horizontal marks, reported to Foreman Eichelberger that Ugrano- vich was in no condition to work, and saw Ugranovich leave with a wobbly step. George added that he told Eichelberger that Ugrano- vich had a habit of laying off on pay day, that he had spoken to Ugranovich once or twice before about coming to work with liquor on his breath, and that he now recommended him for a discharge. Eichelberger confirmed George's testimony and asserted that Ugrano- vich was apparently under the influence of liquor, that his work was being done in an improper manner, and that when Ugranovich left he walked in an uncertain condition. - Ugranovich, however, denied that he had come to work intoxi- cated or that he had been given that reason for his discharge; denied that he had been warned about coming to work intoxicated before, or that he had a habit of laying off for two or three days after pay day; admitted that the tool which he used had made circular in- 330 NATIONAL LABOR RELATIONS BOARD stead of horizontal marks on the surface of the steel, but explained that the fault was due to another grinder in failing to have the required number of belts on the machine. Ugranovich also asserted that he had been "off booze for 28 months and never touched it." In this conflicting state of the evidence it is instructive to con- sider the respondent's policy, as stated by George, Eichelberger, and Hopkins, with regard to men who come to work in an intoxicated condition. George testified that Hopkins had personally instructed him to send a man home if he cane to work in an intoxicated condi- tion, that he had observed hundreds of men in the mill with liquor on their breath and on certain occasions had himself, come to the mill with liquor on his breath, but that he disciplined an employee by sending him home only if the liquor on his breath was very strong or the man wobbled. George also testified that of the hundreds of men whom he had observed with liquor on their breath, Ugranovich was the only one who wobbled and whom he reported. Eichelberger testi- f ed that the general policy of the company was that so long as a man could work safely and was not intoxicated to the extent that lie wobbled, no matter how strong the odor of liquor on his breath, he was not sent home. Eichelberger also testified that he could not remember having recommended discharge of any of the hundreds of employees who had come to work with liquor on their breaths, but claimed in the past eleven years to have recommended some men for two or three day lay-off because of liquor on their breaths. Hop- Hns testified that lie sends an employee home but does not discharge him for his first offense in wobbling, and that even if he had smelled liquor on his breath a couple of times and he was wobbly lie would lay him off for two or three days, but would not discharge hint. It thus appears that even if Ugranovich was intoxicated when he came to work, which he' denies, and had come to work once or twice before with liquor on his breath, which he also denies, the normal procedure would have been to reprimand and discipline him with a two or three day lay-off instead of discharging him. Despite the respondent's policy, however, he was discharged, and, according to George, was the only man ever to have been discharged under the "wobbling" rule. In view of Hopkins' statement to Ugranovich at the time of his discharge, which is only partially denied, and certain of his other anti-union remarks, which are not denied, we are satis- fied that Ugranovich was discharged not for his alleged intoxication but because he joined and assisted the union. Ugranovich has not received substantially equivalent and regular employment elsewhere. At the time of the hearing he had earned approximately $111 since his discharge. Will S. Wright. During a strike in 1922 at the Canton Works, then owned by the United Alloy Company, one Ake, superintendent DECISIONS AND ORDERS 331 of employment for the United Alloy and later for the respondent, hired Will S. Wright as a strikebreaker, promising him that "if you stick with the Company , you will have preference for a job as long as you do not do anything out of the way with the • Company." After working three months , Wright left the employ of United Alloy and worked elsewhere until 1933 , when he was employed by the re- spondent as a chipper . In May 1935 Wright took part in the strike at the respondent 's Berger Manufacturing Company plant. After this strike , when Wright applied for and was denied reinstatement, he testified that Superintendent Hopkins told him, "Bill if you want to work here , you have to stick with the Company . You cannot have one foot over here and one over there and expect , the Company to stick with you." In the early part of 1936 Wright was offered help in getting his job back by one Williams, a chipper employed by the respondent, whom Wright characterized as a "snitcher for the Com- pany." Pursuant to Williams' instructions, Wright went to Ake, superintendent of employment , who gave him a note to Hopkins. Wright testified that Hopkins offered him a job if he would stick with the ,Company. Wright accepted. After returning to work, Wright attended numerous safety meet- ings in the plant where Superintendent Hopkins, Foreman Johnston, and "Charlie, the bed foreman ," on occasion told the employees, "You don't want to mess around with no outside union, because if you want to work, you cannot be tied up with no union ." In the early part of 1937 Wright was asked by Beckner to join the C. I. O. Williams advised him , "If you ain 't signed, you better not sign, because the damn C. I. O. aint no good, if you want your job." Several weeks later Beckner again asked Wright in Williams' pres- ence to sign a membership card. "Williams sneaked out ," Wright testified , "and, about two days after that (on April 27 ) . . . I was called into Mr. _ Hopkins office. " Hopkins informed Wright and other employees who-were present that new men were being laid off in order to give the older men more hours . Wright stayed after the others had left and reminded Hopkins that he had been employed in 1922 and that Ake had promised him preference . Hopkins replied that he had told Wright that if he wanted to work for the Company, he had to stay on the right side of the fence and could not have one foot over here and one over there, and that Ake was "not running the show." "I told him," Wright testified , "'I am on the right side of the fence when I work.' And he said `You are not dumb, you know what I mean.' " Wright also testified that some of the chippers who were not laid off had less seniority than he. The respondent contends that Wright was laid off with a number of other chippers, without discrimination , for purely business rea- sons. Hopkins testified that because of the lack of tonnage the 332 NATIONAL LABOR RELATIONS BOARD respondent decided to lay off 37 chippers ; that Wright was thirty- fourth in length of service, and was laid off in regular order; that the respondent's policy with regard to seniority was that if a man was laid off for 30 days or more, while there was work available, his seniority rights were lost; that Wright had been laid off on May 22, 1935, 6 days before the Berger strike and had returned to work some- time in 1936; and that with this lay-off Wright had lost the seniority rights which had accrued to him since his employment in 1933. On cross-examination, however, Hopkins contradicted his earlier testimony with regard to the respondent's seniority policy, by stating that if an employee were laid off for more than 30 days, he would not lose his seniority rights. On this basis, it appears that Wright was entitled to credit for approximately two years' service, and that when he was laid off on April 27, 1937, the regular order of seniority was not followed. Although Hopkins denied all of the statements attributed to him by Wright, we are convinced that his denials are not to be credited. The respondent had pointedly warned its employees in its statement of July 2, 1936, that it would not tolerate "conduct detrimental to the interests of the Company and which may disrupt the satisfactory relations between employees and management." On March 5, 1937, after publishing the respondent's statement of its open-shop policy in the newspapers, Carl Myers had summoned the Employee Repre- sentatives to a meeting at which he repeated the respondent's state- ment of July 2, 1936. The record contains uncontradicted testimony that other superintendents and foremen had warned employees not to join the union under threat of loss of their jobs. Moreover, although Hopkins denied having made the statements at safety meet- ings attributed to him by Wright, he admitted that he could not recall what he had said. Ugranovich's testimony with regard to cer- tain of Hopkins' anti-union statements is undenied. Under these circumstances we are of the opinion that Wright was laid off on April 27, 1937, because he had joined or was suspected of having joined the Union. Wright has not earned any money since April 27, 1937. Sabri Shaban. Shaban was first employed by the respondent as a chipper from June 1933 until March 1934, when he left the respond- ent's employ for a visit to the "old country." In October 1936, upon his return, he applied to Superintendent Hopkins for his former job. He testified that Hopkins asked him, "'You belong to a union?' and I say `No.' `If somebody go on the road and stop you . . . what are you going to say?' And I just figure and I sit two or three min- utes ... He said `What are you going to say to me now P I say `I know I no have to sign my name because I am hungry.' He said `If DECISIONS AND ORDERS 333 you listen to me that way, I am going to give you a job right now.' And he gave me a job." On or about April 23, 1937, Shaban went to work with a copy of the "Steel Worker," apparently a union newspaper, in his back pocket. Shaban testified that Hopkins saw the paper, pulled it from Shaban's pocket, and said "'Why you no listen to me when I say I .would give you a job' And he throw away that paper and didn't say nothing that time. In three or four days he called me in the office and he say `You no listen to me that time when I was talking to you and I give you a job and you belong to the C. I. O. now."' Shaban was then laid off. He testified that many chippers hired with him on October 25, 1936, and others with less seniority were not laid off. The respondent contends that Shaban, like Wright, was laid off on April 27 without discrimination, according to its policy of seniority. Hopkins testified that of the 37 chippers to be laid off Shaban was twentieth on the list, and that in determining Shaban's seniority he had counted the period from October 1936 to April 1937 and not the nine-month period in 1934 and 1935 when Shaban had worked for the respondent, in accordance with the respondent's seniority policy ,of canceling rights which had accrued from former service, after a lay-off of 30 or more days. In view of Hopkins' later admission that an employee did not lose his seniority rights after such a lay-off, it appears that Shaban would be entitled to credit for his service in 1934 and 1935, even apart from his claim that men hired on or after October 1936 were not laid off. Although Hopkins denied all state- ments and acts attributed to him by Shaban, we do not find his denials convincing for the reasons cited in our discussion of Wright's discharge. We find that Shaban was laid off on April 27, 1937, because he was suspected of having joined the Union. Shortly after his lay-off, Shaban worked for approximately 4 days at the Canton Culvert Company, owned by the respondent, where he earned $25, his total earnings since April 27. The cumulative testimony of Ugranovich, Wright, and Shaban, although denied in whole or part by Hopkins, satisfies us that Hopkins followed a policy of questioning employees on their union affiliations, and of discharging them or laying them off for real or suspected membership in the Union. We find that the respondent has discriminated against Mike Ugra- novich, Will S. Wright, and Sabri Shaban in regard to hire and tenure of employment, thereby discouraging membership in a labor organization. 334 NATIONAL LABOR RELATIONS BOARD C. Youngstown 1. The Plan of Employee Representation The Plan of Employee Representation in the Youngstown District was adopted in June 1933 and slightly revised in June 1934 and March 1937. On April 19, 1937, at a special meeting of the General Body of the Employee Representatives, McCoy, the Management Rep- resentative, announced that the respondent would withdraw financial support from the Plan. Shortly thereafter, the Employee Repre- sentatives formed the "Employee Representation Plan" which pur- ported to be financially independent of the respondent, supplied them- selves with membership cards, and launched a membership campaign. On May 19, 1937, the Independent Federation of Republic Employees, herein called the Federation, was organized by the Employee Repre- sentatives for the dual purpose of lending support to the "new" Plan and taking measures to prevent the strike. Immediately after the strike was called and during the strike, the Federation sponsored the Back-to-Work movement and solicited signatures to back-to- work petitions. Thereafter, the Federation was combined with the Plan and a constitution and bylaws were adopted which purported to establish the Federation as a collective bargaining agency for the employees. The formation and activities of the "new" Plan and the Federation will be discussed hereafter. The Plan at Youngstown, as it existed until April 19, 1937, was substantially identical in structure and operation with the Plan in Massillon. It is therefore unnecessary to describe it at length. It is sufficient to point out certain circumstances and incidents which attest to its domination by the respondent. The Plan was introduced and fostered by the respondent. Its adoption was never submitted to a vote of the employees, although the preamble to the March 1937 edition of the bylaws states that the Plan "has been adopted by the employees and the Company for the pur- pose of collective bargaining." John Guest, one of the Employee Representatives, testified that he was first apprised of the Plan in June 1933 when the foreman of his department handed him a copy of the bylaws and he saw posters announcing that the Plan would be put into effect and that, pursuant to it, nominations and elections of representatives would take place. . All the expenses involved in the conduct of the Plan were defrayed by the respondent, and all the necessary facilities were furnished by it. The Employee Representatives were reimbursed by the respond- ent not only for time lost during working hours but also for any additional time spent in attending meetings and performing other work in connection with the Plan. DECISIONS AND ORDERS 335 In spite of the provisions in the bylaws that nominations and elec- tions shall be "so conducted as to avoid influence or interference with voters," the evidence indicates that even the election campaigns were not always free from at least indirect participation by the manage- ment. Thus in the 1935 elections for Representatives , Joseph O'Hara, who opposed the reelection of John Guest , was granted permission by the foreman to leave his work and go around soliciting votes among the employees . Such permission was not given to Guest. The testimony of Ralph Mondora, one of the Employee Representa- tives, shows that, at least in some instances, Employee Representatives were more concerned with the remuneration they received for their services than with promoting the interests of their constituents. Mon- dora admitted having lost interest in the Plan after the respondent announced its withdrawal of financial support. He testified, "We tried it and got to a point that there wasn't no funds, and Ave quit; I quit it as I wasn't going to use my time representing anybody, so I dropped out." The futility of the Plan stemming from the respondent's control is strikingly illustrated by the operation of the Joint Committees and the Joint Appeals Committee, Joint Committee No. 4, which were composed of five Employee Representatives and five Company Rep- resentatives . The submission for adjustment .of grievances to Joint Committee No. 2, in charge of wages, employment , schedules and working conditions, generally resulted in a five to five vote. The same result ensued upon an appeal to the Joint Appeals Committee. Such a deadlock generally ended the dispute and, in effect, constituted a decision against the employees. It is further significant that even at the first annual meeting of Joint Committee No. 2, when officers were being elected, repeated balloting for chairman resulted in a five to five tie. The Employee Representatives finally conceded the chair- manship to the management. Numerous provisions in the bylaws of the Plan reflected manage- ment control. Typical were the provisions requiring the approval of the Management Representative for holding special meetings of the committees, and the consent of the management in order to put the question of the dissolution of the Plan before the employees at an annual election. At a number of meetings of the General Body, the Employee Rep- resentatives themselves signified their dissatisfaction with the Plan and leveled criticism against its operation. Thus at a regular meet- ing held on February 25, 1937, the General Body voted its protest against the methods used by some superintendents and foremen in calling in employees who had asked an Employee Representative to 336 NATIONAL LABOR RELATIONS BOARD act for them, and requested that they be restrained from doing so unless with the consent and in the presence of the Representative. At a special meeting held on March 15, 1937, the General Body discussed the sentiments of the employees relative to the Plan and recommended the following : 1. A change in the Plan whereby it would not be dominated by the Management. 2. A small fee of 25¢ of monthly dues and the right to use the check-off system to make the Plan self-supporting. 3. The elimination of Nos. 2 and 4 Joint Committees, as has been proven nothing but tie votes are ever counted in those meetings. 4. The right to hold meetings with the men they represent.. . 6. When agreements are made, that they be made in writing and not orally. 7. The right to recall Representatives. 8. That when a case is presented to Management, to speed it up and not carry it over a lengthy period of time.. . 10. The right of the Employee Representatives to hold a meeting and to have the employees who they represent cast a ballot as to their choice of the Plan-whether or not they wish to continue, or to have the check-off system of a monthly fee. These proposals were submitted to the management at the meeting of the Central Council of Employee Representatives which was held in Cleveland on March 18, 1937. The policy of the management an- nounced at the meeting was thereafter reported to the General Body at a meeting held on March 25, 1937. The management indicated that there was a possibility of eliminating Joint Committees Nos. 2 and 4, that it would give permission to Employee Representatives to hold meetings with their constituents, that it would grant the right to recall Employee Representatives, and that it would endeavor to speed up cases as much as possible. The management categorically refused to enter into any written agreement and to give permission to use the check-off system for dues. Significantly, the management was silent on the question of eliminating its domination over the Plan and of determining by secret ballot whether the employees de- sired the continuance of the Plan. - On the record as a whole, we find that the respondent has dom- inated and interfered with the formation and administration of the Plan of Employee Representation at its Youngstown District, and has contributed financial and other support to it. DECISIONS AND ORDERS 337 2. Events preceding the strike; formation of the "new" Plan and the Federation The organizational activities of the S. W. O. C. in the Youngstown District began in July or August 1936. At some time thereafter, headquarters were set up in the Terminal Building, and Republic Lodge 1331 was established. Commencing in October or November, meetings were held first in Truck Drivers' Hall and then in the Roumanian Hall. Surveillance of the meetings by company police began almost im- mediately. Joseph Gallagher, one of the first employees of the re- spondent to join the S. W. O. C., testified that whenever a meeting was scheduled, company police were present outside the meeting hall. Particularly conspicuous among the company police was Sny- der, who, in the words of Gallagher, seemed "as though he was as- signed permanent to that kind of work." The attitude of the com- pany police is illustrated by the verbal altercation which, according to Gallagher, took place between them and Burke, a S. W. O. C. organizer, outside of Truck Drivers' Hall where a meeting was scheduled. An automobile with company police was parked near the hall. Burke said to them, "You better get going, rats," and the reply was, "We are here to stay if we have to shoot our way through it. You'se better get going." On January 23, 1937, Gallagher was discharged. He had been em- ployed as an inspector in the electrical department, and his duties consisted in making the rounds of inspection and answering whistles summoning him in case of any trouble. The evidence is conflicting with respect to the circumstances attendant upon his discharge. John H. Graft, the electrical superintendent, testified that during that time there was a flood condition in Mahoning Valley, that Gallagher was warned to "watch his step," and that he was nevertheless caught asleep in the control house, or "shanty," where inspectors were not permited to rest. Graft further testified that he did not discharge Gallagher but merely told him to go home and get some sleep, and that he re- turned for his money and never requested to be permitted to come- back to work. Gallagher, however, testified that he was always ac- customed to rest in the "shanty" when there was no immediate work without anyone ever objecting, that there was no danger in his de- partment that night, and that he left the shanty immediately upon the blowing of the whistle. According to Gallagher's testimony, the following conversation took place : ... my superintendent, Mr. Graff [Graft], says to me : "Joe,, I had Mr. Walker blow that whistle for you." I says, "What is it 338 NATIONAL LABOR RELATIONS BOARD for, Johnny?" and he says: "Well, you have been sleeping in there ; you can go ahead home until I send for you." I says: "Well, you have got to give me a better answer than that, Johnny, before I ever accept it . . ." He says : "Well, Joe, I know you couldn't have been sleeping for you answered the whistle too soon, but," he says, "if I was you, I would go ahead on home." When Gallagher returned to see Graft the following morning, the company police refused to let him enter. On pay day he received his money and was never asked to return to work. In view of the open hostility of the respondent toward outside unions and Galla- gher's generally known membership in the S. W. O. C., we are in- clined to the belief that the incident in the shanty was a pretext seized upon by the respondent to justify its conduct and that Galla- gher was in fact discharged because of his affiliation with the S. W. O. C. However, it is unnecessary to make a finding with respect to this discharge, since it is not a basis of the complaint. Beginning in February the S. W. O. C. organizers intensified their activities by visiting employees and talking to them about organiza- tion. Espionage by the respondent became correspondingly more systematic and persistent. Snyder was stationed near the head- quarters of the S. W. O. C. in the Terminal Building and appraised other company police of the movements of the organizers. Galla- gher testified that he was followed from the time he left his house at night to go to the Terminal Building until he returned. Charles Fagan, another organizer, testified to a particular occasion when he and Gallagher were followed "all around town" upon leaving the Roumanian Hall where they had attended a meeting. The automo- bile that usually followed the organizers bore license number H-763-V. On making an inquiry at the Bureau of Motor Vehicles in Columbus, Gallagher was informed that this license number was issued to Carl W. Parker, another of the company police. Spying on organizers was not the only method by which the re- spondent endeavored to stifle union organization. Resort was had to the Plan as a means of spreading anti-union propaganda. Thus, at a meeting of the General Body in February, Elliott, district man- ager of the respondent, stated that it was up to each of the repre- sentatives to maintain the Plan in operation by going among their constituents and pointing out to them the merits of-the Plan over the C. I. O. or any other outside organization. This method was apparently ineffective. Unsuccessful in their at- tempts to get an increase in the wage rates, the Representatives, in a resolution adopted by the General Body on March 5, stated, "This DECISIONS AND ORDERS 339 Body feels it would be an insult to their intelligence to ask them to go among the men in favor of a plan that has failed to get for them what the employees of the other mills already enjoy." The respond- ent began, therefore, to pursue a more direct course of action. On March 13, the day following the election of officers in Republic Lodge 1331, the foundry was suddenly closed. Twelve of the 14 men employed in the foundry were members of the S. W. O. C. and in- cluded Thomas White, President of the Lodge, and Charles Fagan, a member of the Grievance Committee. The foundry was a unit within the mechanical department and its chief products were molds or stools used in the open hearth and the Bessemer plant. William Manley, superintendent of the mechanical department, testified that the foundry was closed because there was a backlog of orders for Bessemer steel and the iron used at the foundry was required for the Bessemer plant. According to his testimony, for a period of at least • 30 days prior to the closing of the foundry, conferences were held with the heads of the Bessemer plant, and it was decided to discon- tinue operating the foundry. He further testified that prior to the closing of the foundry the respondent had purchased some molds or stools to try them out. This explanation is not convincing in the light of the attendant circumstances. The foundry had been in operation for 20 to 30 years and required only about 600 to 700 tons of iron per month, which amounted to two per cent of the iron used at the Bessemer plant. White testified that at about 3 o'clock in the afternoon of March 13 Manley came into the foundry and said, "Boys, I have bad news for you. Our foundry is being closed down for good." By way of explanation, he stated that lie had orders from "up above" and was carrying them out. When Manley made the announcement, the molds in the foundry on which six men had been working since 10 o'clock in the morning were almost ready for pouring. It would have required only about 3 additional hours' work to close the molds and then cast them. Instead of completing the work, the men were ordered to knock the molds out. It is unlikely that the closing of the foundry would have proceeded in such haste and disorderly fashion if it had been made necessary by a shortage of Bessemer steel, and previously discussed at conferences. We conclude rather that the closing of the foundry, where substan- tially all the employees belonged to the S. W. O. C., was another step in the continued efforts of the respondent to check the increasing union organization. It was designed to discourage union member- ship, and was particularly directed against White and Fagan, who 134063-39-vol. is-23 340 NATIONAL LABOR RELATIONS BOARD were thus discriminated against in regard to the hire- and tenure of their employment.- At about the same time, individual employees in other depart- ments were called in by supervisory officers and questioned about their affiliation with the C. L 0. Richard Elder, a first helper in the open-hearth department, testi- fied that on March 13 George Putnam, the superintendent of the same department and Jones Cahill, the assistant superintendent, told him that they saw his name on' the Executive Committee of Lodge 1331 in a C. I. 0. pamphlet, and asked him whether he belonged to the C. I. 0. Three days later, Putnam summoned Elder to his office and, according to Elder's testimony, said, "Dick, I always thought you was a good friend of mine ... it don't look like it when you joined the C. I. 0.... I just want to tell you that lots of times we have to let good men go that we don't like to lose, on account of union activities ... I just wanted to tell you that." Putnam. admitted questioning Elder about his C. I. 0. membership, although he denied making the other statements and asserted that he merely warned him that he would be discharged if he did any organizing on company time. Jerry Simcox, a second helper, testified that on March 13 or 14 Cahill and Putnam told him they understood he was an executive 53 On March 15 White. Fagan, and about four others who had been employed in the foundry interviewed McCoy, the Management Representative, regarding their positions. McCoy promised to extend his efforts on their behalf, but informed then that they would have to be hired through general labor. According to White's testimony, this signified 'being rehired as new men. When the men returned the same afternoon to get their tools, Bill Sponsler, the foreman at the Haselton furnace, handed them discharge slips White objected and stated that he wanted to wait until pay day and look around in the mean- time But Sponsler replied, "I have my orders. You take these slips , and go and get your money." White testified that it was not the normal procedure in similar situations to discharge employees immediately, but that usually employees were permitted to retain their pay slips or time cards which enabled them to enter the mill at any time indicated on the cards and to communicate with the various foremen and supervisors. Two or 3 weeks after the foundry was closed, McCoy secured employment for Fagan on the general labor gang at $5.00 a day. About 2 or 3 weeks thereafter Fagan was trans- ferred to the coke works. Dissatisfied, he asked Manley for a better position. Manley said he had nothing for him. About half an hour later, the foreman at the coke works asked Fagan his name and number, and said, "That is all I want to know " Several days later the same foreman told him he did not need him. Fagan returned to the labor gang, but worked only 1 or 2 days a week. He made two or three other attempts to obtain a position but was met with the reply that there was no work for him. Shortly before the strike, he received the vacation to which he was entitled. Prior to the closing of the foundry, Fagan earned 841/2 cents an hour and worked 6 days a week. He has not earned any money since he stopped working on the labor gang. White was also offered employment on the labor gang, but lie refused to accept it, and stated that in view of his years of service he thought he was entitled to a better position. Thiee or 4 weeks later, White told McCoy that he had been working out of town, but desired to return to the employ of the respondent. McCoy said he had to consult "one fellow" in the plant before White could be hired. Several days later, McCoy told him he could not take him back. ' Prior to the closing of the foundry, White earned $44.40 a week. On about March 16 he obtained employment elsewhere and worked for about 6 weeks prior to the strike, com- mencing again on August 2. He left his employ at the beginning of the strike in order to participate in it as president of Lodge 1331. DECISIONS AND ORDERS 341 of Lodge 1331 and asked him how long he had been a member of the C. I. 0. and how many followers he had. James Farner, a welder in the line department and a member of the Grievance Committee of Lodge 1331, testified that Graft, the superintendent of the electrical department, asked him why he wanted to join the C. I. 0. and get himself mixed up with a "bunch of cheap Bolsheviks." According to Farner's testimony, Graft also stated that the respondent would never recognize the C. I. 0. and that the super- intendents and heads of each department were to head "this thing off and save ,all our necks." Graft testified that he merely warned Farner not to solicit employees on company time and on company property. Joseph Stevens, a second line man, testified that Graft called him and said, "... they tell me you belong to the union quite a bit ... I would rather you keep your nose clean." Graft admitted talking to Stevens about his union activities, but denied making any statements designed to discourage him from continuing his union activities out- side of the plant. As indicated, the respondent's witnesses denied making certain statements intended to discourage union membership. However, the accounts given by the witnesses for the Board are more consistent with the evidence as a whole. Moreover, the respondent's witnesses admit that they questioned the employees regarding their C. I. 0. membership. Such action by itself constituted intimidation and coercion of the respondent's employees. Likewise, at about this time supervisory officers in different depart- ments intensified the campaign of intimidation and coercion by spreading propaganda in favor of the Plan and against the C. I. 0. at meetings of the employees called by them for that purpose. Thus, in the middle of March a notice was posted on the bulletin board of the line shop in the electrical department announcing a "safety meeting." However, no safety measures were discussed. According to Stevens' testimony, Graft, the superintendent of the electrical department, spoke as follows : Men, I am here in behalf of the ones that are interested in themselves and to try to convince the ones that are not inter- ested in themselves, to be interested in themselves. . . . Big Chief John L. Lewis . . . has never done anything for the labor- ing class of ' people . . . he won't do anything, only get your money and go on with it . . . you won't have any more than you have got, only you will be just out of a job or cause you a lot of trouble, you can't never get over, you lose friends ... [the Representative Plan] has always give satisfaction ... All the grievances that we have ever had to settle, have been carried 342 NATIONAL LABOR RELATIONS BOARD out and treated the men right . . . regardless if every man in here joins a union, we are not going to recognize it. We are not going to sign any contract ... we are not going to have no closed shop or no collective bargaining. Stevens' version of Graft's speech is, in substance, supported by the testimony of Farner, who also attended the meeting. Graft denied attacking the C. I. O. and testified, as follows : I told them that there had been many pamphlets, booklets cir- culated in the plant, talking among the men, and articles in the newspaper as to what one would have to do to hold his job with Republic Steel Corporation. I told them that I had called them together to tell them just exactly what the policy of the Republic Steel Corporation was, and that it was not necessary to join any organization regardless of what anybody said, to get their job or to hold their job. If they did join, that was their business. That under the Representative Plan we had been able to make very good strides. That I thought that our policy was the best policy for the men. Several other meetings of a similar nature were held at various times during the month of April, after Golden, the regional direc- tor of the S. W. O. C., had written to Girdler regarding a proposed agreement. These meetings were addressed respectively by Manley, superintendent of the mechanical department, Elliott, the district manager, and Levantry, the works manager. In these addresses the C. I. O. was attacked, the Plan was- extolled, and the policy of the company with respect to outside organization was emphasized. Thus, Elliott reiterated that the respondent would never sign with the C. I. O. or any other outside organization, adding, "Some of you fellows look at me as though to say `to hell they won't,' but I say they might, but it would be a long, long struggle." Similarly, Levantry remarked, "This Company will never sign up . . . we will shut the mill up and board it up before we will sign with the C. I. O." On April 19, as set forth above, McCoy announced at a special meeting of the, General Body that the respondent was withdrawing financial support from the Plan. As reported in the minutes of this meeting, McCoy stated that "under the Wagner Labor Bill he would not be permitted to carry our time (as he has in the past) for attend- ing meetings and explained that men off duty would not be compen- sated, but added that men attending meetings during t7ieir regular working hours would be carried on their regular job." [Italics sup- plied.] A•motion was then passed that a monthly fee of 25 cents be assessed against all members of the Plan, and a treasurer was elected. DECISIONS AND ORDERS 343 The only other significant change in the operation of the Plan, was that membership was no longer automatic upon voting for a rep- resentative, but depended upon signing a membership card. In addition the name of the Plan, as it appears on the membership card, was changed to "Employee Representation Plan." Shortly thereafter the Representatives began a membership drive in the "new" Plan and solicited employees within the plant and during working hours. The campaign does not appear to have been successful. Ralph Mondora, one of the Representatives, testified that the "Representatives tried to form their own organization, financed through the employees," but whatever funds they managed to secure were soon exhausted. Mondora testified also that he handled no grievances after April 19. When employees came to him, he "just turned them down, told them there isn't no such thing." Plan activity was suddenly revived after the Cleveland conference of May 11 between representatives of the S. W. O. C. and the respond- ent. At the same time various measures were taken regarding the impending strike. About a week before the strike, the Employee Representatives met to discuss steps for the prevention of the strike. Levantry, the works manager, was invited to attend. The Representatives voted to circu- late through the plant and talk with the men. This was done. In addition, the respondent's supervisors assisted the Employee Repre- sentatives in holding meetings during working hours and on the respondent's property regarding the strike. Thus a meeting, pre- viously announced by the foreman, was held in the machine shop. Butler, the assistant master mechanic, introduced Jack Jones, an Employee Representative. In the course of his speech, Jones said, "We can have an organization of our own in here. We don't need this C. I. O. All they want is your dollar ... Our representative plan is good enough for us, and I have some cards here for you fellows to sign that want to work. You fellows that want to hold your jobs, sign these cards." He then distributed membership cards in the Plan. William Cummings, a machinist, testifying for the respondent, stated that shortly before the strike he was given permission by his foreman to dictate a petition to the Mayor of Youngstown for the signature of employees. In substance, the petition read, "We, the undersigned, not wishing to strike, in the event of a strike, ask for police protection to enter and leave the plant." Cummings could not recall on cross-examination where he derived the notion of preparing such a petition. He testified, "I' might have gotten the idea from newspaper talk or something I had heard, that when there was a strike, that this had been done; now I don't recall whether or where. 344 NATIONAL LABOR RELATIONS BOARD I didn't burden my mind particularly." Whether or not Cummings himself conceived the idea of the petition, he prepared it and solicited signatures on the respondent's time and within the plant. Cum- mings' memory was equally vague regarding the disposition of the petition after he had obtained the signatures thereto. He testified that two men whose names he could not clearly recollect asked him for a copy of the petition and he gave it to them. He also failed to recall the conversation that took place between them. There is evidence that the same or a similar petition was circulated in other departments. John Guest, an Employee Representative, testified that a clerk in the electrical department phoned and notified him that a petition was waiting for him in the office and that they were "in a hurry to get it signed." Guest went to the plant and circulated the petition. On May 19, at a meeting held in the office building of the respondent, the Independent Federation of Republic Employees, Youngstown Dis- trict, was organized. Guest testified that a notice announcing the meeting was posted on the bulletin board in the masonry department. Mart Murphy, chairman of the General Body under the Plan, pre- sided. Temporary officers were elected. John L. Smith, a mechanic in the electrical department, being elected chairman. Murphy ex- plained that the purpose of the Federation was not to engage in col- lective bargaining but to cooperate with the Plan. He requested Representatives under the Plan not to run for office in the Federation. Between the date of its organization and the strike, a number of departmental meetings were held by the Federation on company time. At each meeting John Smith announced from the chair the date of the succeeding meetings. Employees of the department next scheduled to meet were notified, on company time and property, by employees who had attended the preceding meeting. Walters testi- fied that his foreman informed him of a meeting in the mechanical department. He inquired whether attendance was compulsory and the foreman replied, "Manley wants to see you all there." At the meeting, Cummings, a machinist, spoke through a microphone. He launched into a eulogy of the Plan and said, "This outside Union here, they are not for' you or me." Another speaker talked about the Plan, the coal fields, the C. I. 0., and John L. Lewis. He repeated, "They are not for you, they will do to you fellows just like they did to the fellows in the coal fields. They will double your dues . . . You can't stop them once you sign their cause, then they can do as they please." Murphy pointed to Plan and Federation membership cards and said, "You fellows that want to work, sign the cards." The pamphlets of the Constitutional Educational League entitled, "Join the C. I. 0. and Help Build a Soviet America," were distributed. DECISIONS AND ORDERS 345 Membership in the Federation was solicited not only at meetings but also individually. Michael Krill, an employee in the galvanizing department, testified that he was called in the foreman's office while another employee took over his work. Amel Valley, an Employee Representative, was seated at the foreman's desk. Valley asked Krill whether he wanted to join the Federation and handed him a member- ship card. He then remarked that there was not much use talking to Krill because he knew he was "100 per cent C. I. 0.," but that he was supposed to speak to everyone in the plant. He added that Krill would be "better off" by joining the Federation. Krill was paid for the time so spent. 3. Events during the strike The strike commenced in Youngstown on the night of May 26. Immediately thereafter the Federation began to sponsor a back-to- work movement. Without consulting the other officers of the Federa- tion or discussing the matter at any meeting, John L. Smith, the chairman, secured an office in the Dollar Bank Building, adjacent to the offices occupied by the Youngstown Sheet and Tube Federation of Employees. Back-to-work petitions were prepared for the signa- ture of employees. Some of the petitions were retained in the office and others were distributed outside. Smith reimbursed the persons canvassing signatures for the gasoline used by them. Postal cards in the following form were dispatched to employees : To ALL REPUBLIO STEEL EMPLOYEES : If you are desirous of returning to work as soon as possible, stop in at Room #212 Dollar Bank Bldg., and sign up with the BACK TO WORK movement sponsored by the Independent Federation of Republic Employees. JOHN L. SMITH, Chairman. The record does not indicate the source of the funds which were used in carrying on the back-to-work movement. Cummings testified that at one of the Federation meetings, the date of which he could not recall, the question of dues was mentioned and he handed Mart Murphy a dollar. Chester Crosby, ladle crane man, also testified that he paid dues without stating, however, the date of such payment. There is no other evidence, however, that at that time dues were either required or contributed by the employees. Early in July, after the mills were reopened, the Federation held a meeting in order to combine the Federation with the Plan. As stated by Smith, "The purpose of that meeting was for the Independent Federation of Republic Employees to drop the old Representative Plan or combine the two of them together as one." He testified further, 346 NATIONAL LABOR RELATIONS BOARD Well, at that time the officers of the Representative Plan re- signed and we took over the reins. It was also decided to "donate" the members under the Plan to the Federation. The testimony of Ralph Mondora is revealing : Q. Had the question ever been put to the members, and whether they wanted to become affiliated with this Independent Federation? A. No, sir. Q. Whether they wanted to be donated? A. No, sir. Q. That was an action that the officers were taking without the consent in any way of the members, is that correct? A. That is correct. At a meeting held in the Central Auditorium on July 25, a con- stitution and bylaws were adopted. Application cards were pre- pared. Employees were solicited to sign application cards within the plant and on the respondent's time. Although the new constitution and bylaws purport to make the Federation independent in form of company control, they cannot conceal its real purpose. The record clearly shows the policy of the respondent to perpetuate in its plants an organization subservient to its will and purposes and designed to thwart self-organization on the part of its employees. The Federation is merely a continuation of the Plan under a new guise and is tainted with the same illegality. Before the strike Federation meetings were announced by supervisory employees and held on the respondent's property. Prior to the strike and after the reopening of the mills, -employees were solicited to join the Federation on the respondent's time and property. On the record as a whole, we find that the respondent has dom- inated and interfered with the formation and administration of the Employee Representation Plan and the Independent Federation of Republic Employees, Youngstown District. 4. The refusal to reinstate certain employees The mills in Youngstown reopened on June 25. Although the strike was still in progress, many employees returned to work. A number of them were refused reinstatement. Harry Rigby. Rigby had been in the employ of the respondent for 26 years as an inspector in the electrical department. He joined the C. I. O. late in June 1937. Prior to the strike he was earning about $44 a week. On Friday, June 25, Rigby and five other inspectors in the same department met and decided to return to work the following Monday. Kling, the foreman, phoned and said he needed men to start the mill DECISIONS AND ORDERS 347 at once. Rigby informed him of their decision to return Monday. Pursuant to Graft's instructions, Kling called again and said that if they did not return to work at once they would be replaced. When the men came to the mill on Monday, Kling said, "You fellows ain't got no jobs." Rigby saw Graft on July 13, Graft said, "Rigby, they tell me you are a chronic kicker . . . Charlie Ritchie told me that." Rigby replied that he did not believe that and that he had known Charlie Ritchie for a long time. Graft replied, "Well, I ain't got no more to say to you. You go home and stay home until I call for you." Thereafter, Rigby made attempts to see Graft again but was unsuccessful. Graft testified that the other inspectors admitted they made a mistake in not returning when told to do so and that they were all reinstated. Upon the evidence in this case, we cannot find that Rigby was refused reinstatement because of his membership or activity in the Union. John Lazar. Lazar commenced work for the respondent in 1919 and worked regularly until the strike as an inspector in the inspec- tion department. He joined the C. I. O. in April 1937 and served on the picket line for about a week. Prior to the strike Lazar worked from 42 to 48 hours a week at the rate of 92 cents an hour. On June 26 Lazar interviewed Bill Conklin, the assistant super- intendent, regarding his job. Conklin said he would call him when needed. Lazar returned on June 28 to see Reubendale, the super- intendent. Nearly all the other inspectors were there. Reubendale gave them checks and told them to start working. When Lazar's turn came, he said, "No, I don't give you your check yet," and asked him what he was doing in the picket line carrying a stick or a club. Reu- bendale finally said, "Well, I can't do nothing for you, John, just go on home, when we need you, we will call you." Lazar spoke to his foreman, Don Weeks, shortly after the Fourth of July. Weeks said, "Well, John, I am sorry to lose you from down here. I like to have you back, but I can't do nothing for you. You have got to see Mr. Reubendale." Lazar called Reubendale on the telephone repeatedly and was always told to call "the last of the week" or the "first of the week." On August 9 Reubendale said to him, "I can't do nothing for you, John. Why don't you go in the C. I. O.... They will help you out." Lazar has earned $2.50 since the beginning of the strike. It is clear that Lazar was refused reinstatement because of his con- nection with the Union and of his activity in the strike. The re- spondent apparently attempts to justify this discrimination on the ground that Lazar carried a stick or a club in the picket line. For the reasons discussed hereinafter we are of the opinion that, under 348 NATIONAL LABOR RELATIONS BOARD the circumstances of the case, such conduct upon the part of Lazar, if true, would not warrant the respondent in refusing to reemploy him. Michael Krill. Krill worked continuously for the respondent from July 1936 until the strike. Prior to the strike he was employed in the galvanizing department and was earning from $6.75 to $7.00 a day. He joined the C. I. O. in January 1937, acted as a volunteer organizer, and served on the picket line. At about 6 p. m. on June 28, Krill returned to the plant to seek his job. Linden, the foreman, told him to come back an hour later. Krill inquired whether it would be satisfactory if he returned the following morning since he had to go back home, change his clothes and get his glasses. Linden replied that it would be all right, pro- vided he returned prior to the dead-line, but he did not know when it was. When Krill came early the following morning, Linden said that it was too late and that the dead-line was already in effect. Lin- den also stated that he was aware of the time of the dead-line the pre- vious night, but did not want to apprise him of it. Linden then sug- gested that he register at the employment office. Krill called again in July, and Linden promised to send his number to the employment office if he was needed. On August 13 Linden told Krill that he turned his number in but that there was something wrong. He then asked him whether he was on the picket line and said they probably had his picture in the main office. Krill has earned about $25.00 since the strike. We find that Krill was refused reinstatement because of his connec- tion with the Union and his assistance to the Union during the strike. Balare Chismus. Chismus started work for the respondent on May 18, 1936. Prior to the strike he worked as a laborer in the bar mill. He joined the C. I. O. on May 28 and served on the picket line. Chismus returned to the mill on June 27 or 28 to inquire about his job. The turn foreman asked him, "Why did you monkey around the C. I. O.," and told him to wait for Warnock, the general foreman. Warnock said he did not have anything for him then and told him to come back in a few days. On a subsequent occasion Warnock ad- vised him to go to the employment office. At the employment office he was told that "there is nothing to do now." He made another at- tempt to see Rose, the employment manager, but was prevented by the company police. According to Warnock's testimony, Chismus admitted to him that he was arrested on the Market Street bridge on the night of June 10, and for this reason he was denied reinstate- ment. Warnock did not assert that Chismus was guilty of any acts of violence. Warnock further admitted that as far as he knew Chis- mus did not carry a club on the picket line. Since the strike Chismus has earned about $68. DECISIONS AND ORDERS 349. We find that Chismus was refused reinstatement because of his affiliation with the Union and his assistance to the Union during the strike.54 William A. Haren. Haren commenced work for the respondent in July 1926, and was employed as a mixer crane man. Prior to the strike he worked 40 to 48 hours a week at 771/2 cents an hour. He joined the C. I. O. on August 6, 1936. On June 29 Haren went to the mill to inquire about his job. Charlie Ritchie, the foreman, asked him, "Where is your club," and said, "You have caused a lot of trouble around here. You have agi- tated... If I need you, I will call you." Haren asked, "That means that I am fired?" Ritchie replied, "No, we don't fire anyone." Two or 3 weeks later Haren returned to the mill again. Pursuant to a policeman's instructions Haren went to the employment office. Haren told Rose, the employment manager, that he wanted to register. Rose said, "What do you mean, register? How long do you fellows think we are going to hold your jobs here,-forever? Didn't you know that the gates had opened 2 or 3 weeks ago?" Haren testified that he thereafter phoned Graft and received the reply, "We don't have anything for you, Bill ... We will notify you when we need you. We are all filled up." Graft testified that he refused to reinstate Haren because he had an affidavit from one of the employees to the effect that Haren was on the picket line carrying a club. Graft does not know either the size of the club or the length of time Haren carried it. Haren has not earned any money since the strike. We find that Haren was refused reinstatement because of his con- nection with the Union and his activity in the strike. As in the case of Lazar, the respondent was not justified in refusing to reemploy because of his alleged activity on the picket line. Charles Neverdusky. Neverdusky began to work for the respondent on March 9, 1936. Prior to the strike he was employed as a hooker in the cut and lap shipping department and earned about $7.00 a day. He joined the C. I. O. on January 9, 1937. Neverdusky was out of town on June 28, the date of the dead-line in his department. On June 30 he returned and interviewed Rose at the employment office. Rose was unable to find his number in the files and said, "You are off the pay roll, altogether ... You have to get rehired." Neverdusky came back the following day and showed Rose his pay stub. Rose made another unsuccessful attempt to find his number, and could not tell Neverdusky the reason for its absence. The 6' In the respondent's offer of proof filed with the Board on March 28, 1938, it is stated that on or about October 20, 1937, Chismus pleaded guilty to a charge of rioting. For the reasons discussed hereafter we are of the opinion that, under the circumstances of the case, the plea of guilty to such offense is not a bar to his reinstatement. 350 NATIONAL LABOR RELATIONS BOARD latter persisted, "... who else but you could give me a reason? They would have to give you a reason for taking me off the pay roll." Rose said, "Who the hell am I to give you a reason? Get the hell out of here." At the end of July or early in August, Neverdusky spoke to McCoy, the Management Representative under the Plan, regarding his job. McCoy said to him, "You are one of these guys, C. I. O. men that was on picket line carrying a club?" Neverdusky denied that he car- ried a club. McCoy said, "Well, you are one of these smart guys went down and filed with the Labor Board." To Neverdusky's query, "So that is where we stand?" McCoy replied, "That is exactly where you stand." Neverdusky has earned $12.00 since the strike. We find that Neverdusky was refused reinstatement because of his connection with the Union, his assistance to the Union during the strike, and his filing a charge with the Board. Anthony Martin De Long. Anthony Martin De Long was employed as a hooker in the electric weld department from April 1935 until the strike. Prior to the strike he earned about $5.00 a day. He joined the C. I. O. in April 1937 and served on the picket line. The dead-line in De Long's department was June 28. De Long went to the ' employment office on June 30. Rose checked his number and said, "I don't believe there is anything here for you now ... We will call you when we need you.", De Long inquired how soon that would be. Rose replied, "I don't know, come back New Year's." On July 3 De Long spoke to Campbell, the general foreman of the department. Campbell told him that he had a clear record at the electric weld and he liked his work but he did not know how he could get back. He suggested that he see Roy Case, the superintendent. De Long testified that in the course of his conversation with Case on July 5, Campbell came running 'from the other side of the office and said, "Roy, do you know who this boy is? . . . His name is Tony De Long." The expression on Case's face suddenly changed and he told De Long the work in the mill was slack, that there was nothing for him. De Long remarked, "Well, I can see that I am not wanted around here." Case replied, "Oh, yes, you are wanted around here. The men can use you. You are a good worker, and all that. The only thing you have to do is to keep walking to the employment office." De Long repeatedly went to the employment office, but the police prevented him from seeing Rose. The police were stationed in front of the building. One of them had lists of numbers and names. "Em- ployees'whose numbers appeared on the lists were permitted to see Rose. The others were told to come back the next day. Discouraged DECISIONS AND ORDERS 351 with his fruitless attempts at the employment office, De Long finally succeeded in contacting Campbell again. De Long said he wanted to be taken off the "merry-go-round" and to be told if he had any chances of returning to work. In one breath, Campbell said, "No, you are not fired," and in the next, "... You have to keep .. . walking down to the employment office. You have to be rehired." Shortly thereafter De Long spoke with McCoy who told him, "You will have to wait until the case is over'with the National Labor Board before you can go back to work." We find that De Long was refused reinstatement because of his connection with the Union and his assistance to the Union during the strike. We find 'that the respondent has discriminated against John Lazar, Michael Krill, Balare Chismus, William A. Haren, Charles Never- dusky, and Anthony Martin De Long in regard to hire, and tenure of employment, thereby discouraging membership in a labor organiza- tion. D. Warren 1. The Plan of Employee Representation The plan of Employee Representation in the Warren District of the respondent, comprising the Warren, Niles, and Trumbull Cliffs plants, was adopted in June 1933 and amended in May 1934. Shortly after the constitutionality of the Act was upheld, the Em- ployees' Independent Association, herein called the Association, was formed. It purported to be a new organization and independent of the respondent. The activities of the Association will be discussed hereafter. The similarity of the Warren Plan to the Plan at Massillon, Can- ton, and Youngstown renders it unnecessary to describe it fully. It is sufficient .to indicate certain circumstances and incidents reflecting its domination by the respondent. The Plan was initiated and sponsored by, the respondent. Its adoption was never submitted to a vote of the employees. Ernest Webb, one of the Employee Representatives, testified that he was first,apprised of the Plan at a meeting in June 1933 held in the.office of the superintendent of the hot mill. Elliott, who was then district manager of Warren,, explained the purpose of the Plan. The re- spondent bore the expenses of all the meetings and elections, both of which took place on company time and property, and-6f the entire functioning of the Plan. The representatives were paid their regular salaries for all time devoted to the Plan. Ed Mulligan, the chair- man of the General Body of Employee Representatives, devoted most of his' time to Plan work and was assigned an office for such work. 352 NATIONAL LABOR RELATIONS BOARD The record indicates that the elections themselves were not always free of management influence. Webb testified that prior to the elec- tion of the Chairman of the General Body in 1934, Mulligan, who was a candidate for the office, said to him, "Well, using some of the superintendents to probably bring a little pressure and a little politics, why we will make out all right." The experience of Webb as chairman of Joint Committee No. 2, in charge of wages, employment, schedules and working conditions, is significant. Out of 17 requests for wage increases which were pre- sented to the Committee' during a period of 3 years, the employees won 2 and lost 15. The cases were lost as a result of a tie vote between the Employee Representatives and the Company Representa- tives both in Joint Committee No. 2 and in the Appeals Committee. From the evidence as a whole, we find that the respondent has- dominated and interfered with the formation and administration of the Plan of Employee Representation, Warren District, and has contributed financial and other support to it. 2. Events preceding the strike The circumstances surrounding the discharge of Richard John Green, a breaker operator in the hot strip finishing department, serve to illustrate the activities of the respondent prior to May 1937 when the anti-union drive reached its height. Green joined the C. I. O. on March 2, 1937. On March 6 Paige, his foreman, summoned him to his office. As the office was occupied, Green was taken to the mechanic's shed where he was alone with the foreman. Green testified as follows : He said : "I called you in here, I want to ask you something. I want you to tell me the truth." I said : "I always have told you the truth, Ralph." He.said: "I know that, that's why I called you in here." He said : "I hear your buddy, Jim Airwyke, is signing up members in the C. I. 0." 1 said : "Yes, as a matter of fact,'he signed me up." He said : "What did you want to do that for?" I said : "We men around here are not satisfied with the Company Union Plan.. As it is," I said, "we have no representation at all." And he said : "You have been here long enough to know this Company's policy towards outside unions." He said : "You take my warning and get out of it, and everything will be O. K." He said : "I like you, and I don't want to see anything happen to you." Paige further questioned Green regarding his attendance of C. I. O. meetings and admonished him "to stay away from them." DECISIONS AND ORDERS 353 On March 21 Green was called to the office of Minahan, the super- intendent. Minahan showed Green certain defective steel handled by him and said, "I am going to have to lay you off, and seeing that you have been laid off twice before, I will have to let you go." Green explained that the steel turned out "wavy" because the rolls were worn in the machine, and that the foreman was aware of it but said it did not "hurt anything." Green also explained to Minahan the reasons for his previous lay-offs.55 Minahan said, "I could give you another chance, but you have been talking too much about the union, around here, . . . if you had been any ordinary sweeper, there would have been some excuse for you, but you are more intelligent and should have known better ... As far as I am concerned, I am through with you." Shortly thereafter, Green requested Glenn Dugan, an Employee Representative, to take action in his behalf. Dugan was doubtful as to the possibility of Green's reinstatement, since he had been attending C. I. O. meetings. A week later Dugan informed Green that Minahan even refused to discuss his case. According to Green's testimony, Dugan also said that "he could not understand'the Company's policy in putting statements in the paper that any man was free to join any union of his own choice and then when he did so, then they fired him for it." Unable to obtain any results through the Plan, Green communicated with Mayo, the C. I. O. Regional Director. Mayo secured the services of the Committee of Trumbull Lodge No. 73, and a meeting was ar- ranged with officials of the respondent. The latter refused to give a definite answer. About April 24 the Management Representative under the Plan, McClain, told the vice president of Trumbull Lodge that although he did not make any promises, he might consider reinstating Green but not James Airwyke or Arthur Scott, who were also discharged. On the same day the men decided to submit their case for determination by the Board. Several days later McClain called Green to his office to have "a man to man" talk with him. He said, "I hate to see a young fellow like you get off on the wrong foot with the wrong crowd," and asked him whether he wanted to return to work. Green was willing to return provided he, was given back pay: Minahan said, "I will take you to the Labor Board and back four times before I give you "Green testified that his first lay-off was due to the "scratching" of some steel for which another operator was responsible, and that he submitted to a lay-off for 3 days rather than cause any trouble. The second lay-off occurred in March 1936. On that occasion Green and several other operators were instructed by the foreman to shovel coke because there was no immediate work on the breakers. Upon the refusal of the men to do so, the foreman sent them home and told them to stay home until he called for them. However, when the men explained the facts to Minahan a few days thereafter, he said that they would have lost no time if he had been informed about the incident immediately. 354 NATIONAL LABOR RELATIONS BOARD your back pay." About May 3 or 4, Green decided to return to work without the back pay. He was asked to promise, however, not to talk about the union any more. Paige also told him that if he had heeded his warning he "would have never gotten into this trouble." 56 Shortly after the constitutionality of the Act was upheld, the Employees' Independent Association was formed. Leaflets concern- ing the Association and membership cards were prepared for dis- tribution. The leaflets were addressed to the employees of the War- ren District and were signed by the members of a Committee, styled the "Reorganizing Committee for the Employes Independent Asso- ciation." 57 Ed Mulligan, Chairman of the General Body under the Plan, was also chairman of this Committee. The leaflet indicates that the Association was intended to function pursuant to the provi- sions of the Plan as revised in March 1937. Presumably the refer- ence is to the revision of the Plan adopted April 22, 1937, which has been described above. An intensive Association membership drive began in May, and was conducted with the active support and assistance of the respondent's supervisory employees. On about May 1, Mulligan undertook to mail a great number of leaflets and membership cards to employees. He performed this work in his office in the respondent's hospital building. Eddie Werner, assistant to the employment manager, helped Mulligan by folding the leaflets and cards, placing them in envelopes, and sealing them. Mulligan told Webb, an Employee Representative, that he had to mail about 5,600 leaflets and cards and believed he could obtain the necessary money from the Athletic fund. This fund, which was under the supervision of a Plan committee, consisted of gate receipts of various sport events held on the respondent's ball grounds and of the rentals charged outside parties for the use of such grounds. The membership campaign was not altogether successful. The em- ployees were reluctant to sign the cards. On about May 12, Me- 11 Green worked until the strike. * During the strike Green was refused reinstatement. See infra. 67 The leaflet reads in part as follows : In order that this plan can function in compliance with the various sections of the National Labor Relations Act (otherwise known as the Wagner Act ), as regards rates of pay, wages, hours of employment or other conditions of employment , the plan was amended in March 1937 by the duly elected employee representatives. Paragraph 2, Section VIII, of the .Wagner Act, recently held constitutional by the Supreme Court , provides , however, that an employer cannot contribute financial or other support to any labor organization . It is therefore necessary to secure financial support in order that our revised plan of collective bargaining can continue. If it is your desire to continue collective bargaining through a group of employee representatives chosen from among Republic employees , this can be accomplished by accepting membership in the EMPLOYES INDEPENDENT ASSOCIATION at a cost of Four Dollars ($4.00) per year .. . DECISIONS AND ORDERS 355, Kinney, a superintendent, asked Webb why none of his men signed Association membership cards. Webb testified : I said : "How do you know?" "Why," he said, "Mulligan told me." I said : "What business did he have telling you?" I said : "This is supposed to be a secret order." "Well" he says, "You will have to go out and talk to them, talk to these men."- He said : "You are a free lance, you get around all over the plant." Webb refused to comply with McKinney's request, saying, "You know that the Wagner Bill has been passed." McKinney suggested that Webb consult Mulligan about it. Mulligan was absent from his office at that time. While Webb was waiting, Frank Neale, assistant to the master mechanic, entered and examined the membership cards, in Mulligan's files. Shortly thereafter, Lowry, the master mechanic's, chief clerk, came in with a handful of membership cards and de- posited them with the other cards. Several days before the strike, McKinney again complained that he was in a "tough spot" because the men under his supervision had not returned the membership. cards. A number of foremen were themselves directly engaged in solicit- ing members for the Association during working hours and on the respondent's time. Thus about May 12, `Michel, the general labor foreman, asked Eli Parkovich, a foreman in the labor department, whether he joined the "company union," and told him that " . . . everybody wants to work, got to join the company union." He then instructed him to take down the names and numbers of the men in his gang who refused to sign membership cards. About May 14 Taylor, the foreman of the blast furnace, ap- proached Ernest Garnett, an operator of a "lorry" car in the stock house, and inquired why he failed to return the Association card which had previously been mailed to him. Garnett replied that he already belonged to the C. I. O. Taylor then said "If you know what is good for you, you will sign that." On the same and subse- quent days, Kerwin, the superintendent of the blast furnace, engaged Garnett in conversation regarding the C. I. O. William M. Cain, a roll turner, testified that about May* 15, Baldwin, the foreman of the roll turner department, approached him while he was working and asked him what he thought about the "company union." When Cain' expressed his opinion, Baldwin said, "I don't give a danul what you think of the company union, that don't interest me at all. I am on the spot. The roll turners at the Niles plant have signed up 100 per cent for the company union. The 134008-30-vol. ix-24 356 NATIONAL LABOR RELATIONS BOARD roll turners at the strip plant, fifty per cent of them have signed for the company union. I have eight men here, not one man has signed for me, and I am on the spot, and I think you fellows owe it to me to sign that card." Baldwin then told him not to worry about the dues because "the company will take care of that." George Carter, a locomotive engineer , testified that a few days before the strike, Miller, his foreman, asked him and another engi- neer whether they received a letter with a white card . Carter argued that it would be useless to pay $4.00 a year to join an organization that was of no benefit to him. Miller told him to forget the $4.00 and explained that there was nothing on the membership card regarding the payment of dues. When Carter refused to sign the card, Miller launched into an attack on the C. I. 0., saying that it consisted of a "bunch of communists and bo]sheviks." On the basis of all the evidence we find that the respondent domi- nated and interfered with the Employees ' Independent Association, Warren District, and contributed support to it. 3. The strike The strike began at Warren on the night of May 26. Various prep- arations were made to meet it on that day. Richard Green testified that at the end of his shift on that night he joined the "hot mill" men who were on their way to the strip mill in order to urge the strip mill employees to join the strike. However, on the track be- tween the strip mill and the sheet and tin department there were lined up a couple of hundred "loyal" workers and "bosses" armed with sledge hammers, pikes, and other weapons. As the hot mill men were going through the sheet and tin department, Ginert, the superintendent, yelled at them, "Come on, you sons-of-bitches, we are waiting for you." Not desiring to create any trouble, the men decided to leave the mill. As the employees in the cold strip shipping department were ready to leave at 11 o'clock, Bill Thompson, the "boss" of the department, said, "You have to stay here to protect your jobs... If you go home, you won't have any more jobs in this department." John Riffle and Albert Lewis, impelled by the fear of losing their jobs, remained in the plant. They slept on the floor. Next morning they were given an order for the restaurant. The only supply of food in the restaurant consisted of hamburger sandwiches and coffee. In view of the number of people who had to be served, the hamburger was not properly fried and both Lewis and Riffle became ill. They went home the same day. DECISIONS AND ORDERS 4. The refusal to reinstate Green and Hite 357 About June 25 or 26 employees began to return to work. Richard Green and Hallie Philip Hite, it* is alleged in the complaint, were refused reinstatement because of their union affiliation. Richard Green. Green was actively engaged during the strike in transporting strikers from the S. W. O. C. headquarters to the plant for picketing duty. On June 25 or 26 he went to the Warner Hotel where, he had been informed, passes were distributed enabling em- ployees to get through the National Guard lines and enter the plant. In the lobby Green met McClain, the Management Representative under the Plan, who laughed at him and motioned to him to get out. He then asked someone where to go in order to find out about return- ing to work. He was directed to the mezzanine floor where Mulli- gan, the chairman of the General Body under the Plan and chairman of the "Reorganizing Committee for the Employees Independent Association," was seated at a little table and had several lists in front of him which were believed by Green to contain the names of the men who were to return to work. He informed Green that his name was not on the eligible list and refused to give him a pass. Green testified that there were two others present, St. Clair and Blanchard Bolton. Bolton explained to Mulligan that he was on vacation when the strike commenced, and was thereupon told that he would be given a pass to see his boss. St. Clair was unsuccessful. Green testified that he made no subsequent attempts to return to work, because he had heard that several men who had communicated with his superintendent were told that they would be called back when needed but never were. . The respondent contends that Green's visit to the Warner Hotel does not constitute an application for work, and that Mulligan''s refusal to issue a pass does not constitute a refusal to reinstate Green, since Mulligan had no authority to register any employees or to assign them to any department, but simply acted as an Employee Representative and cooperated with the men for their own best inter- ests. Green testified, and his testimony is not contradicted, that passes were necessary in order to get through the National Guard lines. It is inconceivable that the National Guard would have hon- ored passes issued by Mulligan or anyone else had it not been in- structed to do so by the respondent. That Mulligan's actions were authorized or at least acquiesced in by the respondent is further indi- cated by the presence in the hotel of McClain, who was the Manage- ment Representative under the Plan and who, as indicated above, had a voice in the hiring and discharging of employees. Moreover, Mul- ligan was the Chairman of the General Body under the Plan and of the Association, which, as we found, were dominated and interfered 358 NATIONAL LABOR RELATIONS BOARD with by the respondent and were but the tools of the respondent. Thus the respondent at the very least permitted Mulligan in issuing or refusing to issue passes to hold himself out as acting for the re- spondent. It was, therefore, reasonable for Green to believe that Mulligan was acting with the respondent's authority. The natural interpretation of Mulligan's refusal to issue Green a pass-based on lists of employees before him is that he would not be reinstated and that it would be useless for him to make any further attempts. We find that Green was refused reinstatement by the respondent because of this connection with the union and his assistance to the Union during the strike. Prior to the strike, Green earned about $9.50 a day. Since the strike he was employed for 1 day as a deputy sheriff and 2 weeks as an electric welder at the American Welding Company. His check for the first week was $26.41. Hallie Philip Hite had been in the employ of the respondent since September 1923. Prior to the strike he was a yard conductor and "dumper" at the Trumbull-Cliffs plant, and earned $1.04 an hour with time and a half for working over 40 hours a week. Hite joined the C. I. O. on May 27 and served on the picket line. Shortly before the strike, Al. R. Martin, the traffic manager, and Kilcanney, the foreman, asked him to sign an Association member- ship card. Hite refused. On about June 25 or 26 Hite was informed by Lavelle, one of the respondent's engineers, that the men were returning to work. The same day Hite saw Kilcanney and inquired about his job. Kil- canney said, ". . . if you go back to work, you have got to go back as a new man, rehire, that is, if they want to take you." Hite replied that he would never return as a new man after 14 years in the respondent's service. Hite made no further attempts to secure a job. According to his testimony, it would have been useless, since Kilcanney told him he had "the inside dope." Hite has not earned any money since the strike. We find that Hite was refused reinstatement because of his con- nection with the Union and his activity in the strike. We find that the respondent has discriminated against Richard Green and Hallie Philip Hite in regard to hire and tenure of em- ployment, thereby discouraging membership in a labor organization. E. Cleveland 1. The Plan of Employee Representation, The Plan of Employee Representation in the Cleveland District was, a continuation, of the' Plan which had been established in the DECISIONS AND ORDERS 359 Corrigan, McKinney Steel Company in 1933.58 In March 1937 the bylaws were amended, apparently pursuant to the revision proposed at the Cleveland conferences of the Central Council of Employee Representatives. This revision, as already pointed out, contained minor changes only and in no way removed the respondent's control over the Plan. Shortly after the constitutionality of the Act was upheld by the Supreme Court, Wakefield, the Management Repre- sentative, announced at a meeting of the General Committee of the Employee Representatives 59 that the respondent would no longer be able to contribute any financial support to the Plan. Thereupon the Employee Representatives formed the Employees' Representative Association, a new organization which purported to be independent of the respondent. The formation and activities of the Association are further discussed hereafter. The Plan in the Cleveland District up until April 12, 1937, was similar in structure and operation to the Plan in Massillon and the other districts. It is therefore unnecessary to describe it at length. It is sufficient to state that the employees were never given an oppor- tunity to vote on the adoption of the Plan ; that the respondent defrayed the expenses of all the meetings and elections, both of which were held on the respondent's time and property, of clerical and stenographic services, printing, and of the entire functioning of the Plan ; and that the representatives were compensated by the respond- ent for all time spent in connection with the Plan whether during working hours or outside of working hours.60 We find that the respondent dominated and interfered with the formation and administration of the Plan of Employee Representa- tion at its Cleveland District. 2. Events preceding the strike The campaign to organize the respondent's employees in Cleveland began in June 1936. At that time, there not being any Lodge set up for the respondent's Cleveland employees, they began to join the sa The assets and properties of the Corrigan , McKinney Steel Company were acquired by the respondent in September 1935. In April 1936 the name of the Corrigan , McKinney Steel Company, appearing in the bylaws of the Plan , was replaced by "Republic Steel Corporation, Cleveland District." `9 The General' Committee as set up in,the bylaws of the Cleveland Plan corresponds to the "General Body" In the other districts , and is, in fact, referred to by witnesses as the "General Body." eo The following incident serves as an illustration of the operation of the Plan : John Exall , a chipper at the Corrigan , McKinney plant, testified that in the 1936 elections for Representatives he was defeated by five or six votes. He subsequently learned that Peters, the superintendent of the department, urged the employees not to vote for him, saying, "Don't vote for this man. He is a radical . He is a Communist. Even if he get elected, we going to fire him." To one employee who praised Exall as being a "good man" Peters said, "If you thinp he is a good man , then you are a Communist yourself " 360 NATIONAL LABOR RELATIONS BOARD Otis Steel Lodge.'", The men were at first compelled to hold their meetings secretly. As has already been stated, the respondent met the announcement of the campaign for the unionization of steel workers by its state- ment of July 2, 1936. Immediately thereafter it began a campaign to discourage and thwart organization. (a) The discharges Almost from the very first the respondent resorted to the weapon of discharges. We will take up in order those individuals named in the complaint as having been discriminated against for union activity. The respondent introduced no evidence to rebut testimony that the discharge of these men constituted unfair labor practices. Thomas Cikah. Cikah commenced to work at the Corrigan, Mc- Kinney plant in 1925. Prior to his discharge, he was employed as a locomotive engineer in the coke plant. Cikah testified that during July and subsequent months company police watched the beer parlor operated by his wife near the plant, which was frequented by Balint, a C. I. O. organizer, and others connected with the C. I. O. Cikah joined the Union on July 2, 1936. Shortly thereafter Wall, the superintendent, summoned him to his office and inquired whether he belonged to any union. When Cikah replied that he did not, Wall advised him : "For . . . sake, don't join a union. They are no good. They don't give you anything." Cikah was discharged on July 9, 1936. His foreman told him he was discharged because of his failure to stop the smoke and put out fires in the ovens under his supervision. Cikah testified, how- ever, that he was not at fault in this regard and explained that while he was running the locomotive he could not do anything else. He also testified that there had previously been no complaints concern- ing his work. Furthermore, when he was reinstated shortly before the strike, he was assigned to his old position. This reinstatement took place on May 14, 1937, after Cikah had filed a charge with the Board. At the time of his discharge Cikah was earning 591/2 cents an hour. Since then the rates for locomotive engineers have been raised to 74 cents an hour. He did not earn any money between the date of his discharge and reinstatement. On the basis of the whole record we find that Cikah was dis- charged because of his membership and activity in the Union. John Popik. With the exception of a lay-off of five or six months, Popik worked as a rigger at the Corrigan, McKinney plant con- m The Otis Steel Lodge had been established by the Amalgamated for the employees of the Otis Steel Company. DECISIONS AND ORDERS 361 tinuously from February 6, 1934, until his lay-off on August 10, 1936. Popik joined the C. I. O. on about August 3, 1936. On August 9 he was directed to report to the office of Agnew, the master me- chanic, who questioned him regarding his membership in the C. I. 0., and remarked, "Don't you know that this plant (is) never going to be organized? ... this company got a lot of money and (is) going to break any Union in the world." On the following day Agnew again summoned Popik and said, "I got news for you . . . I got to let you go. That is the news." Shortly thereafter Popik saw Krause, the employment manager, and inquired whether his C. I. O. membership was the reason for his lay-off. In reply Krause put his fingers to his lips and said, "Sh-h-h." After his discharge Popik filed a charge with the Board. On May 8, 1937, he received a card from the respondent directing him to report to the main office. Krause then reinstated him to his former position as a rigger. At the time of his discharge, Popik was earning 55 cents an hour plus a tonnage bonus. Since then the hourly rate for riggers has been increased to 72 and 75 cents. Between the date of his discharge and reinstatement, Popik earned $50 or $75 hauling coal in his own truck. Upon the entire record in the case, we find that Popik was laid off because of his membership in the Union. Frank Pirichy. Pirichy worked for the respondent off and on from Ml,y 1934 until his discharge in the latter part of August. For about 6 or 7 weeks prior to his discharge he was employed as a chip- per in the chipping department. Pirichy joined the C. I. O. on July 1 or 2, 1936, and did considerable organization work among the re- spondent's employees. He testified that he succeeded in organizing about 100 men in the chipping department. Late in August, when Pirichy reported to work on his shift, he was unable to find his time card on the rack. Upon inquiry, it turned out that the company policeman in attendance was in possession of Pirichy's card together with five or six others. Pursuant to the policeman's suggestion, Pirichy contacted Krause the following morn- ing. Krause informed him that he had received orders from George Belline,82 the superintendent of the chipping department, to dis- miss him. Krause was unable to give him any further explanation, and stated, "according to my record, you perfectly O. K. . . . I have no complaint against you. I don't know what it is all about." Pirichy testified that the words "no work" were written on the discharge slip handed to him. Nevertheless, about 15 or 20 new men were hired in his department during the same week. Again, when "Also referred to as George Bellew and George Ballean. '362 NATIONAL LABOR RELATIONS BOARD Pirichy returned to the employment office about 2 weeks later, he witnessed the hiring of additional men. His own request for em- ployment, however, was repeatedly turned down with the reply, "We have nothing for you." Pirichy filed a charge with the Board about a week after his dis- charge. On May 11 he was reinstated to his former position 'and worked until the strike. At the time of his discharge he was earning '60 or 62 cents an hour. The rates for chippers have since that time been raised to 72 cents an hour. After his discharge Pirichy was employed by the W. P. A. for a period of four and a half months and earned $71 a month. On the basis of all the evidence we find that Pirichy was discharged 'because of his union membership and activity. George Troyanovich. Troyanovich began to work at the Corri- gan, McKinney plant on September 3, 1925. At the time of his -discharge on August 27, 1936, he was employed as a bed chain man. Troyanovich became a member of Otis Steel Lodge in the latter part of June. On July 24 he met two organizers from the Otis Steel Company, Casey and Murphy, who invited him in their car which was parked on Broadway and engaged him in conversation. The conversation centered about the circumstance that the respond- ent's employees were being "called in" and questioned by their bosses and by Jones, the captain of the company police. Casey and Murphy expressed the belief that Lohman, an Employee Representa- tive in the coke department, was furnishing the respondent with information. Upon leaving the two men, Troyanovich encountered Sam Naletrich, a loaderman in the coke department, who repeated -that men were being called in. Naletrich then warned him, "Watch yourself, here comes the company stool." Troyanovich looked around, and saw a man coming slowly down the street. Naletrich remarked, "That fellow hangs around the beer joint all the time ... he turns in fellows that sign up." Troyanovich then went to the office where he received his vacation money. On his way out, he noticed that the man who had been pointed out to him by Naletrich was talking to a company policeman. On the same day Troyanovich was ordered to report to the main ,office where Wakefield, the Management Representative, and Captain -Jones questioned him concerning his conversation with the two men on Broadway. Believing that a denial would be futile, Troyanovich admitted that they were two organizers from the Otis Steel Company. Captain Jones thereupon launched into an attack against the C. I. O. and accused John Lewis of being a racketeer and "out to make money for himself." He admonished Troyanovich to stay away from the -two Otis Steel men if he knew what was good for him. When Troy- DECISIONS AND ORDERS 363 anovich stated that he was "neutral" on the union question, Wake- field asserted that it is impossible to be neutral and that one must be either for or against the company. Troyanovich was then urged to influence the men in favor of the Plan and against the C. I. 0. Troyanovich left on his vacation, the same afternoon. When he returned his house was watched by men who arrived in a car and parked on the other side of the street. Upon his leaving the house, the car also disappeared. Two or three days after he returned from his vacation Troyanovich was summoned to the office of Zimmerman, the superintendent of the,order and shipping department. Shriber, assistant to the district manager, talked to him. Troyanovich testified : Well, he first said that he was very much disappointed in me, and I wanted to know just what he meant by that. He said that I knew what he meant. He didn't get to the point. And then he said, "You know ... they are going to start organizing, this union down here ... there is going to be a lot of trouble ... We have had intentions of putting in a new mill here in Cleve- land, . . . if this threat of the union drive is going to go through, we might change our minds and not put the mill in here, .. . you know there is going to be some good jobs when that mill goes up ... you look like a pretty intelligent fellow ... if you work with us, why ... we will see that you will get a good job." And he further stated . . . "You know, the Republic Steel has the reputation of being very good to its friends, and damned ruthless to its enemies . . ." The same day Balint, the C. I. 0. organizer, told Troyanovich that he was slated to be discharged. He explained that Lohman had signed an affidavit confessing that he was compensated by the respondent for furnishing information regarding employees who had joined the C. I. 0. When Troyanovich reported for work on August 27, Robbins, the chief chipper, stopped him and stated that his work had been unsatisfactory. He refused to explain any further. He said, "Char- lie Barrie has got the proof," and added, "You have been a bad influence around here in the past two months." Thereafter Troyanovich requested the Employee Representatives to take action in his behalf. An interview with Wakefield proved fruitless. He stated that they had enough to "hang" Troyanovich and would never rehire him. The Employee Representatives then appointed a committee to see Barrie and ascertain the facts relative to the discharge of Troyanovich. Barrie informed the committee that about 2 months before he had been instructed by his "superiors" to watch Troyanovich, that he had on numerous occasions observed 364 NATIONAL LABOR RELATIONS BOARD him conversing with a group of five or six men, and that he turned him in because he was "suspecting that the man was talking about the Union and about Communism." The matter was then submitted to the General Committee at a meet- ing held on September 8, 1936, and a motion was unanimously adopted recommending the reinstatement of Troyanovich. John, Exall, an Employee Representative, testified that about a week after the meeting Carpenter called him into his office, upbraided him for "raising hell" about Troyanovich, and stated that he was a Com- munist and would never be taken back. At the time of his discharge Troyanovich averaged over $5 a day and worked 6 or 7 days a week. On September 30, 1936, he secured employment elsewhere at loading coal and worked for 3 months, earning $26.30 weekly. Since the first of April his earnings averaged only between $5 and $10 a week. Upon all the evidence in this case, we find that Troyanovich was discharged because of his membership in the Union. Michael Naletrich. Naletrich worked at the Corrigan, McKinney plant continuously from 1917 until his discharge on September 9, 1936. At the time of his discharge he was employed as a loaderman in the coke department. He testified that he had never been laid off and that his work had at all times been satisfactory. Naletrich joined the C. I. O. in July 1936, and was active in or- ganizing employees. In the middle of August he took 10 employees to Cikah's beer parlor where they were signed up by Fred Korecky, a speed car operator at the Corrigan, McKinney plant, and recording secretary of Lodge 1098, a S. W. O. C. Lodge. Naletrich testified that he was watched by men from the respondent's office as he entered the beer parlor with the employees. On about September 6 he was directed to report to the superintendent of the coke plant, Wall, who glanced at a slip of paper in his hand and inquired whether Naletrich had joined the C. I. O. Naletrich denied his membership. Wall warned him "Better don't join." After this conversation Naletrich was closely watched by his foreman. On September 9 Naletrich was discharged. By way of explana- tion his foreman told him that he had made a "big mistake" a month ago when he had pushed the coke before the whistle blew. Nale- trich testified that he had already been penalized for his mistake by a one-day lay-off, and that others had committed the same error but were never discharged as a result. After his discharge he repeatedly tried to get his job back but was unsuccessful. Naletrich filed a charge with the Board in March 1937. On May 6 he received a card from the respondent asking him to return to work. For 3 days he was assigned to loading doors and then he was reinstated to his former position. DECISIONS AND ORDERS 365 At the time of his discharge Naletrich was working at the rate of 59 cents an hour. For the first 3 days after his return to work he earned 57 cents an hour and thereafter 74 cents, which constituted the new rate for his former job. After his discharge Naletrich was employed elsewhere for a period of 8 weeks and earned about $160. Upon all the evidence we find that Naletrich was discharged be- cause of his membership and activities in the Union. Fred Korecky. Korecky worked at the Corrigan, McKinney plant more or less regularly from 1930 until his discharge on December 19, 1936. During the first two and a half years he was a pump op- erator. Then he was employed as a speed or service car helper and was finally promoted to the position of service car operator. He testified that as far as he knew his work had always been satisfactory. Korecky joined Lodge 1098 on July 26, 1936, and was elected re- cording secretary a month later. He was active in organization work among the employees. As already noted, in the middle of August he signed up the employees brought into Cikah's beer parlor by Naletrich. During the month of November Korecky was on dif- ferent occasions questioned by Wakefield, the Management Repre- sentative, and Tull, the electrical superintendent, regarding his C. I. O. membership. Korecky denied that he had joined the C. I. O. He testified that after these conversations took place, his house was watched by a man, whom he recognized as a sergeant or lieutenant in the company police and whom he had previously seen in the mill. On December 19 Korecky was,laid off. In accordance with the suggestion of Homer Kerr, the turn foreman, he reported the fol- lowing morning to the employment office where he saw six laborers being hired. Korecky implored Krause to give him anything at all, even a laborer's job. Krause's reply was "No." Korecky insisted, "Why you just hired six men out there. I seen them come in here and I seen you signing them up now." Krause said, "Oh, never mind." Although it is not entirely clear, Korecky's testimony on cross- examination indicates that the occasion for Korecky's lay-off was furnished by the elimination at that time of gasoline locomotives from the equipment used in the service car work and the substitution of gasoline trucks. The service car gang consisted of Korecky and seven other men who had all joined the C. I. O. and were laid off at the same time. Korecky testified that all these men were subse- quently taken back although he did not know on what dates. Korecky further testified that he was sixth in seniority in the service car gang but had greater seniority in the electrical department. Korecky's case was discussed at a meeting of the General Com- mittee of Employee Representatives on January 5, 1937. Korecky, 366 NATIONAL LABOR RELATIONS BOARD who was called in to explain the facts of his case, stated that he had 'seniority rights in the electrical department where men were being hired on the pumps and on the construction gang. He was later in- formed by John Exall, one of the Representatives, that the General Committee recommended his reinstatement by unanimous vote. How- ever, no further action was taken in the matter. Korecky filed a charge with the Board in January. On May 18 or 19 Krause offered him a laborer's job. Korecky did not report to work, since he was occupied with some business matters for a few days, and then he heard that a strike was to be called. On the basis of all the surrounding circumstances it must be con- cluded that Korecky was discharged and refused reinstatement until shortly before the strike because of his affiliation with the C. I. O. There is no evidence that the other men on his gang who had been taken back engaged in any organization work other than joining the C. I. O. Korecky, however, distinguished himself by securing the sig- natures of other employees. It may be that Korecky's position was in fact eliminated. He was, however, willing and anxious to accept any work for which he was qualified. Such work was denied to him although other men were being hired. At the time of his discharge Korecky was earning 62 cents an hour and worked alternately 40 and 48 hours a week. He was paid time and a half for working over 40 hours a week. Between the date of his discharge and recall he earned about $370. John Exall. Exall was employed as a chipper in the Corrigan, McKinney plant from the spring of 1933 until his discharge on January 14, 1937. He joined the C. I. O. on July 2, 1936, and held the position of treasurer in Lodge 1098. It will be recalled that Exall, in his capacity as alternate Representative, endeavored to bring about the reinstatement of George Troyanovich who was discharged on August 27. On September 14 Carpenter summoned Exall,to his office and said to him, "Exall, do you care to work any longer for us? . . . What the God-damn Hell are you raising hell about George Troyanovich? We fired him and when we fire him we never take him back, either. You know, he was a Communist." Carpenter then questioned Exall about his children and their education and sug- gested, ". . . suppose there is a chance for you to become a chipper foreman." Exall replied, "Mr. Carpenter, as long as I represent here, I decline the proposition. If the company thinks that I am good enough to become a chipper foreman, when my turn is over, I will think it over." Exall testified : ... he got sore a little bit on account of my answer, and he says, "You don't fool anybody," he says, "we know you. We know all about you, and we got the goods on you, too . . ." DECISIONS AND ORDERS 367 I says, "Any proof you got on me, lay your proof on the table and I will admit my mistake," but he says, "Go on now," he says, "Next time I call you here I am going to have the proof." Late in October Wakefield requested Exall to urge all the employees in the chipping department to stay away from the C. I. O. Wake- field offered to permit him to work in the daytime, so that it would be possible for him to see the men on the different shifts; to rec- ompense him for time spent outside of working hours in visiting the men at their homes ; and to assist him in educating his children. Exall declined to accept these propositions. At about the same time Exall attended a C. I. O. meeting held at the house of Manuel Garcia, an employee of the respondent. On the day following the meeting, John May, the Plan Chairman, visited Exall at his home. May explained that he was sent by Wakefield and instructed to speak to him like a father. He said they knew where Exall had been the previous day and he mentioned Garcia's name and the number of his house. He finally said, "Mr. Wakefield send me over here ... to tell you to watch your step." Upon his return to work thereafter Wakefield asked him whether May spoke to him and what he thought about it. Exall testified : I told him Mr. Wakefield I think I got a right to go any place I want. What I am doing is my own affairs. He said, "Yes, but it don't look good in the part of the Company. You cannot work both ways. If you want to work with C. I. 0., resign your position here." I said, "Why should I resign my position?" He said, "You cannot work both ways ... You don't give the co-operation." I said, "If I don't give you satisfactory co- operation, why don't you fire me?" He said, "Don't worry, if you don't watch your step, you going to get fired." Sometime in November Exall was laid off for a week under the following circumstances : An invitation had been extended to the Employee Representatives to attend a meeting in Youngstown of the "Employee Representatives of Ohio." At a meeting of the General Committee Wakefield announced that although they had no right to represent the respondent's employees at the Youngstown meeting, any Representative could attend as an individual if he so desired. Exall consequently made the trip. When he returned, George Bel- line, the superintendent of the chipping department, laid him off for a week for absenting himself from work without the foreman's per- mission. Exall protested that he had on other occasions taken time off without permission and was never reprimanded. He complained, to Wakefield and requested that a special meeting of the General Committee be called to consider the question. Wakefield replied, "Nothing doing." He made the same request upon May, the Chair- 368 NATIONAL LABOR RELATIONS BOARD man of the General Committee, who told him that if Wakefield was opposed to a meeting, nothing could be done about it. On about January 5 Exall was ordered to report to Wakefield's office. Captain Jones, who was present, read certain names from a list containing about 300 names and check numbers and asked whether Exall recognized them. Exall testified : I said, "Yes; most of them . . . Why?" He said, "You done the dirty work." I said, "What do you mean, Mr. Jones?" He said, "You signed up these men in the Union . . ." I told them it was a lie and he turned around and he said, "Not only that but during [sic] the payroll C. I. 0., you are getting $6 a day," and I told him that was another lie. And he turned around and said, "Well, we expect you to say that but you cannot fool me. I am watching you day and night." Then . . . I said, "What business have you got to watch me what I am doing out- side of the plant?" He said, "That is my job. I am getting paid for it . . . As long as you want to work for them at $6 a day, why don't you talk to Mr. Wakefield? ... We pay you $6 a day." And I says, "What ... are you trying to do, make a stool pigeon out of me? ..." "Well," he says, "You can't work for both sides, for Republic Steel and for C. I. O.... if you don't want to play ball with us . . . you won't stay long." I says, "0. K.... If I don't give satisfaction, ... they can fire me." He says, "Don't worry ... they are going to fire you if you don't play ball with us." Jones then handed Exall a notebook containing a list of numbers headed by Exall's name and number and said that it belonged to Balint. Balint subsequently denied ever having seen the notebook. When Exall mentioned this to Wakefield,.he said that Balint was double-crossing him. At about that time lockers of employees in several departments had been broken into, and a systematic search was made of the per- sonal belongings of some employees. Exall testified that his own locker was broken into twice but nothing was removed. This matter apparently became so acute that it was discussed at a General Com- mittee meeting. At the meeting Exall made a statement that they were looking for union cards, that he was a union man and proud of it, and that he wished they would let him alone. On the night of January 13 a C. I. O. mass meeting was held at the Bohemian Hall. Exall testified that he was seen entering the hall by Captain Jones and other company police who were stationed outside. DECISIONS AND ORDERS 369 Exall was discharged on January 14. He testified that at about 2 o'clock on that day he proceeded to the toolroom to change his chisels. Jack Simon, who was in charge of the toolroom, told him to continue to use the same chisels longer. About half an hour later George Belline called Exall aside and said, "The way you act, it seems to me you want the Company to hire a couple of more grinders for you." He accused him of doing nothing all day but changing chisels, and specified the inches of steel that he had chipped with the respective sets of chisels. Exall replied that he could not possibly have ascertained the number of inches of steel he chipped with a particular set of chisels because he had been working alone since 12 o'clock and there was nobody present to measure. Belline refused to argue further and finally said, "Well, we don't want you here." Exall testified that the chippers had been cautioned at a number of safety meetings to exchange chisels which were worn down. Exall also testified that he had never before been reprimanded for im- proper use of tools. Moreover, it is unlikely that the offense with which Exall was charged was of a serious nature, since chisels which are returned to the toolroom are not discarded but merely sharpened and then assigned for further use. About a month later Exall and five or six other employees who had been discharged attempted to interview Wakefield regarding their jobs. A policeman at the gate stopped them and asked them to wait. He went in to speak to Captain Jones, returned in a few seconds, and said, "Nothing doing ... they don't want youse." The same day Exall phoned Wakefield and was told, "You have got your case pending down at the, Labor Board, we can't do nothing for you until the Labor Board makes decision." On May 24 Wakefield offered Exall a ,labor job. When Exall sug- gested that he had seniority rights, Wakefield replied, "Oh, no, we want to hire you as a new man, forget about it." Exall was required to submit to a physical examination. He worked on May 26 and then went on strike. At the time of his discharge Exall was working at the rate of 52 cents an hour. Since his discharge he was employed for about a month by the W. P. A. and earned approximately $60. • Upon the entire record we find that Exall was discharged because of his membership in the Union .63 John Petak. Petak worked at the Corrigan, McKinney plant con- tinuously from. 1928 until his lay ;off on January 18, 1937. He was employed as,a crane repairman in the bull gang. "Exall testified and it also appears in the offer of proof with respect to violence contained in' the respondent 's motion to' reopen filed on August 6, 1938, that he was found guilty of assault and battery committed during the strike . For the reasons dis- cussed hereafter, we are of the opinion that, under the circumstances of the case, convic- tion of sucb ' offeaise is not a bar to his reinstatement: , ' 370 NATIONAL LABOR RELATIONS BOARD Petak joined the C. I. O. on July 1 or 2, 1936. Two weeks there- after Tull, the superintendent of the electrical department, said to him, "John I have got your name and badge number here and I heard 'you joined outside union." He also told him that he had been in- formed of Balint's frequent visits to his house. After this conversa- tion Petak was given considerably less work than the other men. At about the same time his house was being watched by company police. On one occasion a company policeman followed him all the way from his home to the clock house in the plant and observed him as he punched his card. On January 13 Petak saw Captain Jones and the policeman who had previously followed him standing outside of the Bohemian Hall where a C. I. O. meeting was being held. When Petak came to work on January 18 he found that his card had been removed from the rack, and that he had been laid off. Gene Perry, the boss in the electrical department, told him that the elimination of gasoline locomotives necessitated the lay-off of some men and that he was the youngest in the bull gang. When Petak remonstrated that there were four men on the gang with less senior- ity, Perry promised to secure for him a crane operator's job and to call him in a few days. He never called. About 3 weeks later Petak spoke to Krause. Krause told him to wait a minute. He re- turned after about an hour and a half and did not even want to talk to Petak. Petak made three other attempts and was met with the reply, "Nothing doing." Petak testified that in the meantime four men having less seniority had been taken off the speed car service and placed on the bull gang. He also testified that a janitor had been given a craneman's job and then placed on the bull gang. Thereafter, Petak filed a charge with the Board. On May 18 he was offered a general labor job and worked until the commencement of the strike at the rate of 62 cents an hour. At the time of his lay-off he was earning 59 cents an hour. The rate of employees in the bull gang was ultimately increased to 741/2 cents an hour. Petak had not earned any money from the date of his lay-off until his recall on May 18. On the basis of the whole record we find that Petak was laid off because of his membership in the Union. Mathew Babich. Babich first began to work at the Corrigan, Mc- Kinney plant in 1922. Shortly prior to the acquisition of the plant by the respondent in 1935, Babich was laid off because his position was eliminated. On May 6, 1936, he was given a job on the elec- trical repair gang and worked continuously until his lay-off on January 25, 1937. Babich joined the C. I. O. on July 16, 1936. He testified that in August his locker had been broken into , and his union card had been removed. Everything else which he kept in the locker, in- DECISIONS AND ORDERS 371 eluding a little honey, remained intact. On January 13 he went to the C. I. ' O. meeting at the Bohemian Hall which was kept under surveillance by company police. On January 25 Gene Perry informed him that he had to lay him off because he was the youngest man in the gang. Babich protested that only three or-four men in the electrical department had greater seniority, that -he had held various positions, and was willing to accept any job available. Perry promised to put him on at the first opportunity. Subsequent attempts on Babich's part to secure a job proved unsuccessful. Babich filed a charge with the Labor Board in April. On May 19 or 20 Krause offered him a labor job and he worked until the strike, earning 621/2 cents an hour. Prior to his lay-off he was paid at the rate of 621/2 cents an hour and was working from 40 to 48 hours a week. The wage rates for electricians have been raised since then. Babich earned $26 between the date of his discharge and recall. Upon the whole record we find that Babich was laid off because of his union membership. Wilbert Neuman.- Neuman first began to work at the Corrigan, McKinney plant on July 21, 1933. At the time of his discharge on January 27, 1937, he was employed as a chipper. Neuman joined the C. I. O. in September 1936. He attended the C. I: O. meeting held in the Bohemian Hall on January 13. Neuman testified that at the meeting he, compared his C. I. O. membership card with that of another chipper. Next to him sat a man called Russel Lapka whose father, Neuman later learned, was a company policeman. After the meeting, Neuman sprained his back and was temporarily assigned to light work such as oiling chipping hammers and other odd jobs. On one occasion, when he was in the toolroom, Jake Simon, the foreman, said to him, "You know, if I were you I would never join the C. I. 0., because Republic Steel has too much money behind it." - On January 26, as Neuman proceeded to the toolrooin to exchange chisels, he encountered Nicola Michich, a foreman, who warned him, "You better watch yourself, because George Balleau [Belline, the superintendent] has been watching you all day." The following day, Belline came over to Neuman with the four old chisels which he had presumably turned in the previous day, and ordered Edward Ray, another chipper, to test them. As Ray chipped the steel, Jake Simon measured the chips, and Belline made a note in his book. After Ray had thus tested all the chisels, Belline said to Neuman, "I am going to fire you. . . . I have been watching you for the last two weeks . . . You have been doing nothing but monkeying around. 134068-39-vol. ix-25 372 NATIONAL LABOR RELATIONS BOARD You have been using too many chisels. You are fired." Neuman testified that he had been employed as a chipper for 3 months prior to his discharge and had never before been criticized for using too many chisels. Neuman filed a charge with the Board in February. On May 11 he was reinstated to his former position. At the time of his discharge he was working at the rate of 621/2 cents an hour and was averaging about $5 a day. He did not earn any money between the date of his discharge and reinstatement. Upon the whole record we find that Neuman was discharged be- cause of his membership in the Union. , Gaetano Armeli. Armeli first commenced to work at the Corrigan, McKinney plant on April 27, 1933, as a laborer. On November 12, 1936, he was promoted to the position of chipper. This position he maintained--until his discharge on February 20, 1937. Armeli joined the C. I. O. early in January. About a month later he lost his key case containing the keys to his locker and his C. I. O. membership card. He reported the loss to the company police. In 4 or 5 days Belline informed him that Captain Jones had found his keys and would return them to him. Captain Jones opened the case and asked Armeli whether the keys belonged to him. Afraid of the pos- sible consequences, Armeli attempted to deny any knowledge of the C. I. O. card and tore it in half. Captain Jones, however, recovered the card from him and said, "Hold on, don't throw it away: Give it to me. I am going to check up your handwriting." On about February 26 Armeli's foreman told him, "I am sorry, Tom, you have to go to see George Bellew, [Belline] the superintend- ent." Armeli testified that Belline drew a slip of paper out of his desk and read him "a story of using too many chisels" about which he knew nothing. Armeli's entreaties to be given a "break" were ineffec- tive and he was advised to see Krause. Krause merely confirmed the fact that he was discharged and handed him his slip which, accord- ing to Armeli's testimony, was marked "suspicious." Shortly thereafter Armeli filed a charge with the Board. On May 18 or 19 Krause visited him and offered him a job in the- labor gang, where he worked until the strike at 521/1, cents an hour. At the time of his discharge he was earning 621/2 cents an hour plus a tonnage bonus. The wage rate for chippers has since been increased to 721/2 cents an hour. On the basis of all the evidence we find that Armeli was dis- charged by the respondent because of his union membership. We find that the respondent has discriminated against Thomas Cikah, John Popik, Frank Pirichy, George Troyanovich, Michael Naletrich, Fred Korecky, John Exall, John Petak, Mathew Babich, Wilbert Neuman, and Gaetano Armeli in regard to hire and tenure DECISIONS AND ORDERS 373 of employment, thereby discouraging membership in a labor organization. (b) Other acts of intimidation The discriminatory discharges of these employees, -accompanied by the surveillance of C. I. O. meetings; spying on employees af- filiated with the C. I. 0., and the other practices referred to, are not the only manifestations of the respondent's active hostility to self- organization on the part of its employees. Numerous other incidents serve further to illustrate the respondent's, activities. In the middle of August a C. I. O. meeting for Negroes employed at the Corrigan, McKinney plant was scheduled to take place at the Globe theatre. The contemplated meeting, however, failed to mate- rialize. One Negro who came to the theatre explained that the men were afraid to attend because Captain Jones was driving around in his car with about four other men. The company police, under the leadership of Captain Jones, made repeated attempts by means of threats and violence to prevent the distribution of union literature in the vicinity of the respondent's plants. Thus when Benny Favorito, a volunteer S. W. O. C. or- ganizer, was distributing literature at Independence gate, Captain Jones and Sergeant Russell threatened the employees with discharge if they accepted any handbills. On another occasion in December Captain Jones began to assemble a crowd to "tackle" the C. I. O. organizers who were distributing handbills in front of the gate. The organizers were compelled to leave. On January 13 Balint, Vincent Favorito, and another organizer went to the plant of the Truscon Steel Company, a subsidiary of the respondent, to distribute announcements of the mass meeting at the Bohemian Hall scheduled for that night. As they took their positions near the gate, a "great big fellow" wearing a blue lumber jacket came out of the gate and approached Balint. Believing that lie was an employee, Balint handed him a leaflet. He took it with his left hand, whirled Balint around, said, "You dirty son-of-a- bitch, get the hell away from here," and hit him in the eye. Balint testified that the man had brass knuckles on his right hand. Walter Maloney, alias Walter Jergis of the company police, who was stand- ing there, called them "further names" and said they received what they were looking for. As a result of the blow, Balint's eye became infected and had to be lanced. Balint subsequently saw the man who struck him dressed in uniform at the Truscon plant. Benny Favorito testified that a number of C. I. O. men were dis- tributing "Steel Labor" at the Truscon plant on January 25. One of the men who were massed around Captain Jones approached him and struck him in the face. Favorito retaliated. Thereupon a company 374 NATIONAL LABOR RE LATIONS BOARD policeman ran up to him, pulled out his gun, and said, "You son-of- a-bitch, if you don't cut it out I will put a slug in your back." On April 19 Paul Castman was brutally beaten when he was dis- tributing literature at the Truscon plant. Prior to a description of this incident it is material to set forth certain circumstances relative to Castman. He had procured a job at the Truscon plant on March 5, 1937. On April 5 his foreman told him that he had received orders to lay him off but gave no reason. Frank Dunch, a Representative, informed him that he was discharged for union activities. He was advised to speak with Captain Jones who questioned him about his former employment and his union activities. Castman testified : He said, "You are not working with Al Balint, are you?" I said, "No, sir. I am not. I don't even know Al Balint." He. says, "He is one of the Union men ... You ought to be work- ing for the Union ... One of the Presidents of the Union's Lodge is getting eight dollars a day from the C. I. O.... I am also paying him for his work down here." He then asked him about the extent of the C. I. O. membership in the plant and again inquired whether he was associated with Balint. He warned him, ". . . If you are, it will be too God damned bad for you, if you are double-crossing me, look out." Subsequently, Castman engaged in voluntary organization work.' As already stated, on April 19 he was distributing literature near the gate of the Truscon plant to the men entering and leaving the plant. John Jense, an employee of the respondent, told Castman he would sign a C. I. O. membership card if he had one available. Castman gave him a card and Jense filled it out. Castman noticed, however, that he had not written in the date and proceeded to do so himself. A man whom he recognized as a company policeman pushed Jense out of the way and struck him with a blackjack on the side of his face. Castman testified : When he hit me with the black jack, I stumbled backwards and fell in the gutter alongside of the sidewalk .. . He, jumped on me with his knees in the pit of my stomach, started beating me over the head and the arms and' the hands with a black jack. He says, "God damn you, here is some of Cap's Union...." I had my hands over my head. I was trying to protect my head and he continued beating me with this black jack. Every time he would hit me he would say "uh-uh ..." As a result of the beating Castman suffered severe injuries and spent 16 days in the hospital. William Sikorski, who had previously been employed at the Corri- gan, McKinney plant, spoke to Krause in April 1937 regarding a job. DECISIONS AND ORDERS 375 Before he was put to work, however, he was subjected to an interview with Captain Jones who was called in by Krause. Krause pointed to Sikorski and said, "There is your man." Jones examined Sikorski's application card, commented on the number of his children,`and stated that the respondent would see to it that he had work to support his family. He then inquired about the men he had formerly worked with in the 10 and 12 inch mill. Sikorski mentioned a few names. Jones remarked, "Yes, everyone of those boys are all on thin ice, I would not give you five cents for any one of their jobs. . . . They are running around the mill, over there, and they are organizing the fellows into the C. I. 0., and we are not going to stand for it." He said further, "Now, I want you to go over to work over there and I want you to keep your nose clean of the C. I. O. because ... we are never going to recognize them. Balint and Danitz, a couple of Commu- nists, will never tell Republic Steel how they are going to run their corporation." - In addition to the foregoing activities, the respondent, in combat- ing the growth of union sentiment among its employees, attempted to spread propaganda in favor of the Plan and against the C. I. O. Thus; at a Plan banquet staged in October by Wakefield, the Manage- ment Representative, Wakefield delivered a speech in which he ex- tolled the Plan, stated that the principal task was to keep the C. I. O. out of the plant, and requested the assistance of the Employee'Repre- sentatives in doing so. Likewise, petitions were circulated within the plant expressing faith in the management and satisfaction with the Plan. Again, Babich testified that at a Plan meeting or banquet he received a photostatic copy of an article by' Chesly Manly in the Chicago Tribune which attempted to discredit the C. I. O. by denounc- ing its objectives as communistic.64 And John Sabol, an Employee Representative, testified that at a Plan conference which was at- tended by a number of company officials, White, vice president of operations, delivered a speech characterizing the C. I. O. as neither an American nor a responsible type of -organization. (c) The Employees' Representative Association The Employees' Representative Association was formed after April 13 when Wakefield- announced at a meeting of the Plan that the re- spondent would henceforth be unable to furnish the Plan with finan- 64 The article, dated March 28, 1937, appears under the heading "SEE C. I. O. DRIVE AS COMMUNIST IN ITS OBJECTS." The first paragraph , Indicating the tenor of the article, reads as follows : The industrial union drive of John L Lewis' Committee for Industrial Organiza- tion which has brought the current epidemic of sitdown strikes, Is essentially a com- munist movement and has been advocated as the first step In a program to over- throw the government of the United States and set up a soviet dictatorship evir since the communist party of America was officially organized at Woodstock, N. Y., in May, 1921. 376 NATIONAL LABOR RELATIONS BOARD cial support. The old Plan, however, was never formally dissolved. John Sabol testified that the Association contemplated the adoption of the bylaws under which the old Plan operated. The record con- tains no evidence that any other bylaws were formulated which would tend to make the Association independent of the respondent's control. Although some discussion was had regarding the question of assessing membership dues in the Association, there is no evidence that dues were in fact assessed or contributed by employees. There is nothing by which to distinguish the Association from the Plan ex- cept that membership was apparently no longer automatic upon vot- ing for a Representative but depended upon the signing of member- ship cards. The character of the Association membership drive, which took place on the respondent's time and property, further at- tests to its domination by the respondent. James C. Quinn, an inspector in the 12-inch finishing mill testified that Harold Sisk, an Employee Representative, distributed member- ship cards within the mill and explained the purpose of the Associa- tion. On another occasion Art Lawton, the turn superintendent, ordered every man in the mill to go into the office. On the desk in the office were a large number of membership cards, and as the men entered cards were thrust upon them. Quinn testified to the follow- ing altercation which he had with Lawton : "Mr. Lawton," I says, "What authority have you got standing up there and chasing them men in there?" I says, "The Supreme Court has just signed the Wagner Relations Act," I says, "you haven't a damned bit of business standing up there making them men sign up." I says, "The only reason they sign up, if they don't sign it, you will turn them in to their bosses in the morn- ing," and I says, "You know what that means, he would come out here and lay them off again like he always does." "Well," he says, "the Wagner Labor Relations Act is like everything else," he says, "it don't mean a damn thing." Then he went on to tell me about me and my bunch of com- munist friends, John L. Lewis all. the way down, he raked them all over the boards... At about the same time 'the members of the Plan Sanitation Com- mittee, which had on its schedule a tour of inspection of sanitary con- ditions, were called into Wakefield's office where Wakefield, May, the Chairman of the General Committee, and Grimm, the Secretary of the General Committee, were present. Wakefield placed a package containing Association membership cards on the table, and said, ``Well, we got to get started with this some time or other and we might as well get started now." In consequence, the Committee, in- stead of making an inspection tour, solicited employees to sign mem- bership cards. DECISIONS AND ORDERS 377 The employees, however, manifested reluctance to joint the Asso- ciation. Sabol testified that Tull , the superintendent of the electrical department, complained to him about the low percentage of em- ployees in his department who had joined . Tull also summoned Nut- ting, the foreman of the construction gang, and inquired what the trouble was. Nutting stated that he had a couple of men whose ,example the rest of the employees seemed to follow, and expressed the opinion that only riddance of them would help matters. Sabol testified that in compliance with Tull's request he made further at- tempts to prevail upon the employees to joint the Association but failed to get any signatures. No deduction was made from Sabol's pay for the time spent in this work.115 On the basis of the foregoing facts and the record as a whole, we find that the respondent has dominated and interfered with the for- mation and administration of the Employees' Representative Asso- ciation. 3. The Strike The strike in Cleveland commenced on May 26. During the strike, the respondent again resorted to the dissemination of literature among its employees calculated to discredit the C. I. O. and to break the strike. Girdler issued for distribution to the employees the state- ment of June 15 (quoted supra), which attacks the C. I. O. as an irre- sponsible and communistic organization. Also the respondent pre- pared a reprint (referred to supra) of anti-C. I. O. articles culled from various newspapers and entitled, "What the Editors are saying about the Republic Strike." John Exall testified that he received through the mails copies of both the statement issued by Girdler and the reprint. F. The Central Council of Employee Representatives Our previous discussion renders superfluous a detailed analysis of the Central Council. It was informally instituted in the fall of 1936 when Employee Representatives from the respondent 's plants in, nine districts met with representatives of the management in the respondent's offices in Cleveland. After a second meeting at the same place on March 8, 1937, at which representatives of the management About a week before the strike a new organization , styled The Republic Employees' Association , Corrigan , McKinney Division , came into existence. Relative to this organiza- tion , David MacMeans , an employee at the Corrigan , McKinney plant, testified that shortly prior to the strike he was summoned into the office of Eckert , a foreman, and asked to sign a membership card in the Republic Employees ' Association . Eckert explained to him that the men were initiating this organization of their own volition and indicated that it would be to MacMeans' best interest to sign the card. Thereatefr, Eckert told him, "You better make up your mind to join the Republic Employees ' Association . . . be- cause all of you fellows are going to belong to it before the end of May." MacMeans also testified that on two occasions he saw notices posted on the bulletin board an- nouncing meetings of the Republic Employees ' Association. 378 NATIONAL LABOR RELATION S BOARD were present and participated , provisions for the participation of Employee Representatives in Central Council meetings were formally incorporated in the proposed revision of the Plan and later in the, amended Plan , which was adopted on April 22,1937. All the expenses of these meetings, including the .meals, transportation expenses and salaries of Employee Representatives, were defrayed by the respondent. On August 2 and 3, 1937 , the Chairman of the Central Council called a meeting of the Independent Association . of Republic Employees of Massillon to discuss the adoption of constitution and bylaws for the latter organization . Nick Linckenhely , who attended this meeting as a delegate, testified that the respondent paid none of its expenses and that lie attended at his own expense. The function of the Central Council, as already indicated, was to "back the Management in opposition to all outside labor organiza- tions." It was composed in part of representatives of the management, at least until April 1937, and in part of Employee Representatives and officers of the various labor organizations at the plants in the Massillon , Canton , Youngstown , Warren and Cleveland districts, which, we have found, were dominated and controlled by the re- spondent. Under these circumstances, the Central Council could. not represent the free choice of the employees . We find that the re- spondent has dominated and interfered with the formation and ad- ministration of the Central Council of Employee Representatives and has contributed financial and other support to it. IV. THE CAUSES OF THE STRIKE The respondent in its answer asserts that the strike was called with- out any cause or justification and solely for the selfish benefit and advantage of the S. W. O. C. and the C. I. O. in an attempt to gain control of the respondent's employees and all steel company employees, and that there was no labor dispute between the respondent and its employees and no difference as to wages , hours, and working conditions. From the facts recited in Section III, we think it clear that the underlying cause of the strike, and a substantial factor in its precipita- tion on May 25 and 26, was the respondent 's campaign to crush the Union by means of the unfair labor practices set forth above. The respondent's conduct falls squarely within the findings of the Congress in Section I of the Act, "The denial by employers of the right of em- ployees to organize and the refusal by employers to accept the pro- cedure of collective bargaining lead to strikes and other forms of industrial strife or unrest ..." The record shows that ever since the inauguration of the Plan in June 1933 , the respondent had made plain its policy of complete antagonism to the self-organization of the employees and its determination to forestall or destroy any such organ- DECISIONS AND ORDERS 379 ization by all means at its command. On July 2, 1936, shortly after the advent of the S. W. O. C., the respondent reiterated this basic policy in a public statement, and immediately and ruthlessly put it into effect. Its spies shadowed union organizers; its police attacked and beat them; its superintendent and foremen threatened, laid off and discharged employees for union activities; its officers fostered and supported a whole series of puppet labor organizations which the respondent manipulated to oppose the Union; and its chairman and president publicly vilified the Union's leaders, purposes and policies under circumstances intended to throw the weight of his influence -against his employees' efforts at self-organization. Finally in May 1937 there occurred a series of events which precipitated the strike. On May 3 the S. W. O. C., by Clinton Golden, wired the respondent that widespread unrest prevailed among its employees over the un- certainty of the respondent's position regarding a signed collective bargaining contract, that this unrest had been accentuated by the lay- off of several hundred Union members at the Canton and Massillon Works, and that "unless we can have definite assurance from you -with date for conferences to negotiate written contract without further delay we shall be obliged to disavow all responsibility union members in your mills remaining at work." On May 5 the respondent replied to Golden's telegram that "in view of Wagner Act see no necessity for signed contract. The policy of this-company ... is that it is willing to meet with anyone to bargain with him for whomsoever he repre- sents . . . Will meet with you at any time mutually convenient for collective bargaining purposes." The complaint does not allege that the S. W.- O. C. represented a majority of the employees in any or all of the respondent's plants at this time, or that the respondent's refusal to sign the S. W. O. C. agreement constituted a refusal to bargain collectively within the meaning of Section 8 (5) of the Act. Nevertheless, it is plain that the manner and expression of the respondent's refusal to deal with the S. W. O. C. constituted interference, restraint, and coercion of its employees in their right to self-organization and col- lective bargaining. The respondent on numerous occasions an- nounced, as its reasons for refusing to sign the agreement with the Union, -that it favored the Plan as a successful method of collective bargaining, that it would not tolerate any interference with this successful relationship between management and employees, and that the Union was communistic, corrupt, repressive and irresponsible. Further, on numerous occasions the respondent's superintendents and foremen had announced to meetings of employees that, for the same reasons, the respondent would never sign any contract with the Union. This position was announced in such language as the fol- 380 NATIONAL LABOR RELATIONS .BOARD lowing : "Regardless if every man in here joins a union, we are not going to recognize it. We are not going to sign any contract. We are not going to have no . . . collective bargaining." "We will shut the mill up and board it up before we will sign with the C. I. O." We think it clear that these repeated statements and the unrest created thereby, to which Golden referred in his telegram, were a contributing and substantial cause of the strike which occurred on May 25 and 26. On May 5, immediately after replying to Golden's telegram, the respondent shut down its tin-plate mill at Canton' and locked out almost all of its employees, with the threat that the mill would not- reopen "until we get rid of that union." Upon the break-down of negotiations between the respondent and the S. W. O. C. on May 11, the Employee Representatives, with the respondent's support, in- tensified their attempts to obtain membership for the newly formed successors to the Plan, and conducted meetings in Canton, Massillon, Youngstown, and Warren, for the purpose of preparing for a strike and organizing opposition to it. On May 20, under the- circum- stances described above, the respondent shut down its Massillon Works, locked out its employees, and taunted the president of New Deal Lodge No. 1124 with its illegal conduct : "When we get through starving you out, you won't want to strike." By these acts, the respondent served final notice in unmistakable terms that it was prepared to go to extreme lengths to destroy the Union and to. deny to, its employees the rights guaranteed in the Act. Faced with this illegal and provocative conduct, the Union called the strike, not as the respondent alleged; without cause or justification, but because in fact no other course remained open to it. The whole history of- the respondent's unfair labor practices, cul- minating in this lock-out on May 20, had placed the Union in a position where it had to fight for its life or be destroyed. The respondent, not the Union, had chosen the way of industrial strife. In its brief the respondent takes the position that the sole cause and only issue in the strike was the respondent's refusal to sign an agreement with the Union. It is true that the respondent's refusal to sign an agreement-which is not alleged or found to be an unfair labor practice in this case-was important in precipitating the strike. But this action on the part of the respondent cannot be divorced from its whole previous campaign to crush the Union'through unfair labor practices. And, as stated above, basically it was that campaign which underlay and made inevitable the strike. Further, the significance of the Union's insistence upon an agree- ment should not be misunderstood. To the. employees attempting self-organization the proposed agreement involved much more than DECISIONS AND ORDERS 381 a fixing by contract of certain wages, hours and working conditions. Indeed, the respondent contended that the provisions of the pro- posed contract were no more favorable to the employees than the conditions already existing in its plants. As the provision in the proposed agreement for recognition of the Union demonstrates '66 the agreement was intended to mark the acknowledgment by the re- spondent of the right of its employees to organize without interfer- ence and the cessation by the respondent of its unfair labor practices. Thus the Union's demand for an agreement represents to a large extent merely one aspect of the demand of the employees for free- dom in self-organization and emphasizes, rather than contradicts, our analysis of the causes of the strike. We conclude, therefore, that although the respondent's refusal to sign the agreement presented by the S. W. O. C. was in part the nnmediate cause of the strike, the fundamental cause of the strike, and' a substantial factor in its precipitation on May 25 and 26, was the long series of unfair labor practices which occurred prior to the strike as set forth in Section III above. The respondent, in its motion to reopen the record for the taking of further evidence, asserts that. the record herein contains no evi- dence tending to establish that the strike was caused directly or in- directly by any of the unfair labor practices set forth above, but that, on the contrary, all of the evidence in the record relating to this subject discloses that the strike was caused solely and proximately by the refusal of the respondent to sign a form of written agreement presented by the S. W. O. C., which was not alleged or found to be an unfair labor practice. The respondent also asserts that the bur= den of proof, as. to the cause of the strike,"was upon the Board; that the Board has failed to sustain its burden,. and that the addi- tional evidence which the respondent seeks to offer conclusively removes any doubt that might otherwise exist as to the actual, sole, and proximate cause of the strike. These contentions of the respondent do not constitute grounds for reopening the record. The respondent does not assert that newly discovered evidence upon the issue is now available, or that it was denied an opportunity at the hearing before, the Board or the Trial Examiner to adduce the evidence now offered. On the contrary; counsel for the respondent admitted at the oral argument before the Board that all the evidence which it now seeks to introduce on this.,issue• was available at the time of the- hearing. and was not of- SECTION 2. Recognition -The Corporation recognizes the union as the collective bar- gaining agency for those employees of the Corporation who are members of the Union. The Corporation recognizes and will not interfere NNith the right of its employees to become members of the Union There shall be no discrimination, interference, restraint or coercion by the Corporation or any of its agents against any members because of member- ship in the Union. . . . 382 NATIONAL LABOR RELATIONS BOARD fered. It also appears that at the hearing before the Trial Examiner in Cleveland the respondent did, in fact, introduce evidence, similar to that which it now seeks to introduce, in support of its theory that the strike was caused solely by its refusal to sign the agreement proposed by the S. W. 0. C. It further appears from an examination of the respondent's offer to prove, accompanying the motion to re- open, that none of the proffered evidence relied on as conclusively removing doubts as to the cause of the strike is inconsistent with the evidence in the record or would alter our finding thereon as to the basic causes of the strike. For these reasons, the respondent's motion to reopen 'the record for the taking of further evidence upon this issue is denied. The respondent excepts to our finding on this issue for the further reason that a variance, asserted to be fatal, exists between the allega- tions in the complaint, and our findings, as to the cause of the strike. This exception is without merit. As set forth above, the complaint alleges, and the answer denies, that the respondent discharged and refused to reinstate certain named individuals (paragraphs 3 to 9) ; that the respondent locked out and failed or refused to reinstate em- ployees at its tin-plate mill in the Canton plant and at its Massillon plant (paragraphs 10 to 15) ; and (paragraph 16) that "by reason of the conduct of the respondent set forth above in paragraphs 3 to 15 inclusive (all of which was duly alleged to constitute unfair labor practices within the meaning of the Act) and by reason of the respondent's refusal to enter into a written agreement with the S. W. 0. C. (not alleged to constitute an unfair labor practice within the meaning of the Act), attempts to negotiate which had theretofore been made by the S. W. 0. C., the employees of the respondent at its- various plants on or about May 26, 1937, went out on strike." The answer, as an affirmative defense to paragraph 16 of the com- plaint, sets forth that the strike was called by the S. W. 0. C., acting pursuant to the direction of the C. I. 0., without any cause or justifi- cation but solely for the selfish benefit and advantage of the S. W. 0. C. and the C. I. 0., in an attempt to gain control of the employees of the respondent and, generally, of all steel-company employees. The succeeding paragraphs of the complaint, numbered 17 to 41, allege, and the respondent's answer correspondingly denies, that the respond- ent has engaged in and is engaging in further unfair labor prac- tices within the meaning of the Act, both before and after the strike. At the close of the hearing the Trial Examiner granted a motion by the attorney for the Board, without objection or exception from the respondent, that the pleadings be conformed to the proof. Thus the complaint, the answer, and the affirmative defense to paragraph 16 of the complaint put in issue the causes of the strike. DECISIONS AND ORDERS 383 At the hearing the evidence relating to all the unfair labor practices alleged to have occurred before the strike, including those not men- tioned in paragraph 16, clearly involved the basic reasons for the strike. It is plain, therefore, that the hearing as a whole raised the general issue of the causes of the strike. That issue was adequately tried out and the respondent had full opportunity to, and did, intro- duce all the evidence it then desired with respect to it. Therefore, the fact that the Board finds that the strike was caused not only by the specific unfair labor practices mentioned in paragraph 16 of the complaint, but also by other unfair labor practices, does not con- stitute a variance which could have prejudiced the respondent. Further, any variance which might have existed was cured by the motion of the Board's attorney to conform the pleadings to the proof. Moreover, the exception should be overruled on other grounds. The significance of the Board's findings with respect to the cause of the strike lies in the fact that where the Board finds that a strike has been caused in whole or in substantial part by an employer's un- fair labor practices it may, in order to effectuate the policies of the Act, require the employer to reinstate the strikers upon application. (See "The remedy" infra.) Here we think it clear from what has already been stated that the specific unfair labor practices mentioned in paragraph 16 of the complaint were, in themselves, a substantial, contributing cause of the strike. Consequently, even if the other unfair labor practices are left out of consideration, the Board would still have power under the Act to order the reinstatement of the strikers. The respondent, of course, had full opportunity to meet the claim that the strike was caused in part by the unfair labor practices referred to in paragraph 16; it also had full notice that the Board would require the reinstatement of strikers if such claim was sustained. (See "The remedy" infra.) Any variance or mis- understanding, therefore, as to this issue, would not have prejudiced the respondent. We conclude that the respondent has not been denied any substan- tial right. Its contention that a fatal variance exists between the pleadings and proof must be rejected as purely technical. For these reasons the exception is overruled. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the re- spondent, described in Section I above, have a close, intimate and substantial relation to trade, traffic and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 384 1T ATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact and upon the entire record in the proceeding, the Board makes the following : CONCLUSIONS OF LAW 1. Steel Workers Organizing Committee and Amalgamated Asso- ciation of Iron, Steel and Tin Workers of North America are labor organizations within the meaning of Section 2 (5) of the Act. 2. The Plans of Employee Representation and their successors-the Employees' Representative Association, the Back-to-Work Commit- tee, and the Independent Association of Republic Employees at Mas- sillon; the Employees' Representative Association, the Back-to-Work Committee, and the Steel Workers Union of America at Canton; the Employee Representation Plan, the Independent Federation of Re- public Employees, and the Back-to-Work Committee at Youngs- town; the Employees' Independent Association of Warren; and the Employees' Representative Association at Cleveland-and the Plan of Representation of Employees at the Canton tin-plate mill and the Central Council of Employee Representatives, are labor organiza- tions within the meaning of Section 2 (5) of the Act. 3. By its domination of and interference with the formation and administration of the labor organizations named in paragraph 2 above, and by its contribution of financial and other support thereto, the respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8 (2) of the Act. 4. By discriminating in regard to the hire and tenure of employ- ment of Peter Mouyios, Victor Arias, Mike Ugranovich, Will S. Wright, Sabri Shahan, George Troyanovich (referred to later as group A) ; John Lazar, Michael Krill, Balare Chismus, William A. Haven, Charles Neverdusky, Anthony Martin De Long, Hallie P. Hite, Richard Green (referred to later as group B) ; Thomas Cikah, John Popik, Frank Pirichy, Michael Naletrich, Wilbert Neu- man (referred to later as group C) : Thomas White, Charles Ber- nard Fagan, John Exall, John Petak, Mathew Babich, Gaetano Armeli, Fred Korecky (referred to later as group D) ; and each of them, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 5. By closing the Canton tin-plate mill on May 5 and the Massillon Works on May 20 and thereby discriminating in regard to the hire and tenure of its employees at those plants, the respondent has en- gaged iii and is engaging in unfair labor practices within the mean- ing of Section 8 (3) of the Act. 6. By its espionage, shadowing, and beatings of organizers and active members of the Union; its announcements, before and after the presentation by the Union of its proposed agreement, that it DECISIONS AND ORDERS 385 would not sign any contract with the Union; its statements to its employees attempting to vilify and discredit the Union; its threats to discharge Union members and to close its plants before recogniz- ing the Union, and its other threats and warnings to employees re- garding the Union; its attempts to turn civil authorities, business and other interests against the Union in order to further its own anti-Union activities; its incitement of violence and hysteria, in order to terrorize Union adherents; its donation of tear and vomiting gas to the City of Massillon; its support to the Law and Order League of Massillon and the Back-to-Work Committees in Massillon, Canton, and Youngstown; its activities in connection with the incident at C. I. O. headquarters at Massillon; its lay-offs, discharges and lock- outs as stated above; its activities in connection with the above- named labor organizations; and by each of such acts, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act and has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 8. The respondent has not engaged in an unfair labor practice within the meaning of Section 8 (3) of the Act with respect to Harry Rigby. THE REMEDY The respondent having engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action which we find necessary to effectuate the policies of the Act and to restore as nearly as possible the situation that existed prior to the commission of the unfair labor practices and which would have existed except for them. The respondent has unlawfully sponsored and supported various labor organizations discussed above. These organizations cannot, in view of the circumstances, operate as a true representative of the em- ployees, and we shall order the respondent to withdraw recognition from them and to disestablish them as such representative. The respondent has also unlawfully discriminated against its em- ployees by locking them out at the Massillon Works and the Canton tin-plate mill. To remedy this illegal conduct, we shall order the respondent to pay the employees involved back pay for the period during which they were deprived of employment. We have found that the respondent has unlawfully laid off, dis- charged, and refused reinstatement to certain employees. In accord- 386 NATIONAL LABOR RELATIONS BOARD ance with our usual practice, we shall order the reinstatement of such employees with back pay for losses suffered by reason of the respondent's unlawful acts. We have also found that the strike at the respondent's plants, which was still in effect at the time of the hearing, was caused fun- damentally by the respondent's unfair labor practices. In previous cases of this character we have required the employer to reinstate the striking employees, upon application, to their former or substan- tially equivalent positions. We find this requirement appropriate and necessary to effectuate the purposes of the Act in this case. In order to protect the right of the respondent's employees to "full freedom of association, self-organization, and designation of repre- sentatives," as guaranteed by the Act, it is essential that the re- spondent be required not only to cease and desist from its unfair labor practices but so far as possible to repair the damage occasioned by such unlawful acts. The most effective method of restoring the situation to that existing prior to the respondent's unfair labor prac- tices, and thereby assuring all the respondent's employees full free- dom in self-organization and collective bargaining, is to reinstate to their former positions those employees who have gone out on strike as a consequence of the respondent's unlawful conduct. The Board's power, derived from Section 10 (c) of the Act, to or- der such reinstatement is dependent upon the finding that the re- spondent's unfair labor practices were the fundamental or substan- tial, contributing cause of the strike of its employees. Where the respondent's refusal to sign the proposed agreement-not alleged or found to be an unfair labor practice-is also a factor in causing the strike, it rests upon the respondent to disentangle the consequences for which it is responsible from those from which it is immune. As set forth above, however, the record shows that the respondent's re- fusal to sign the proposed agreement is inextricably bound up with its unfair labor practices and was, in effect, a refusal to abandon its studied policy of interference with the right of its employees to self- organization. It may be that if the respondent had signed the pro- posed agreement, the strike would not have occurred; but since the respondent cannot show that it could have signed the agreement without abandoning its unfair labor practices, it cannot show that the loss of the men's jobs was caused by a controversy which the Act does not attempt to regulate, or that the Board is not empowered to order reinstatement upon finding that the respondent's unfair labor practices were the fundamental or a substantial, contributing cause of the strike. The order of reinstatement may be based either upon the finding that the strike was fundamentally caused by all the respondent's DECISIONS AND ORDERS 387 unfair labor practices occurring prior thereto, or upon the finding that those unfair labor practices enumerated in paragraph 16 of the complaint were in themselves a substantial and contributing cause of the strike .67 No, material question of variance between pleadings and proof arises with respect to this issue. The respondent contends, however, that acts of violence by in- dividual strikers render such reinstatement inequitable in this case and would defeat rather than effectuate the purposes of the Act. At Massillon and Canton, where counsel for the Board introduced testi- mony that picketing by the strikers was peaceful, the Board and the Trial Examiner permitted the respondent to adduce testimony in rebuttal that certain named striking employees, as well as other unidentified persons alleged lo be members of the C. I. O., had carried sticks and clubs, cut a telephone wire, blocked roads, in- timidated and beaten several members of the Canton Back-to-Work Committee and - other non-strikers, and had in certain respects violated an injunction issued on or about June 25, 1937, by the Court of Common' Pleas of Stark County. In Youngstown, Warren, and Cleveland, where counsel for the Board introduced no testimony on the issue of peaceful picketing, the Trial Examiner excluded testimony that strikers had committed acts of violence, but permit- ted the respondent to file written offers of proof setting out such testimony in detail. On March 19, 1938, the Board denied a motion by the respondent for leave to introduce additional evidence relat- ing to violence, but granted its alternative motion for leave to submit and have incorporated in the record as a part thereof, evidence, inter alia, that certain named strikers, after the close of the hearing in this case, had pleaded guilty to indictments for various crimes committed in connection with the strike. On August 6, 1938, the respondent filed a. motion to reopen the proceeding, herein denied, and an alternative motion, herein granted, to have incorporated in the record specified. offers to prove, setting forth, inter alia, that in Massillon 15, in Canton 25, and in Cleveland 11 "strikers, pickets, or persons affiliated with the S. W. O. C. or the C. I. O." had pleaded guilty to, or had been convicted of, unlawful acts during the strike. In our opinion evidence that the strikers committed acts of vio- lence is relevant on the issue of whether it would effectuate the poli- cies of the Act to order their reinstatement. We will therefore take into consideration evidence of convictions and pleas of guilty of acts of violence committed by individual strikers in connection with the strike. In a case of this sort, however, we will not attempt to try 1 see rational Labor Relations Board v. Remington Rand, Inc, 94 F. (2d) 862, 872 (C. C A 2), cert, denied 58 S Ct. 1046. 134068-39-vol. Ix-26 -388 NATIONAL LABOR RELATIONS BOARD before the Board accusations of violence which did not result in convictions or sentences upon pleas of guilty. To receive evidence upon such matters would raise a muss of col- ,lateral issues which the Board is not equipped to handle. The Board, of course does not have the facilities for investigation and prose- cution of acts of violence that the local law-enforcement agencies ,possess. Nor, as an administrative matter, can the Board attempt to determine the merits of allegations of several hundred various -crimes. We think also that the Board is entitled to rely- upon the local -law-enforcement agencies for proof of such matters. - The record shows that the police and prosecuting authorities of various cities were active throughout and after the strike. Numerous arrests were made and many convictions obtained. Under these circumstances ,the Board is inclined to feel that it can presume that any signifi- cant crime committed was investigated by the proper authorities and, if adequate evidence was found, was prosecuted by them. As a result, especially in view of the administrative difficulty of trying -such collateral issues, the Board will not go into alleged acts of violence of individual strikers beyond accepting the offer of proof, and taking judicial notice, of convictions and pleas of guilty. It should be noted that the reasons for excluding testimony, but admitting pleas of guilty or convictions, with regard to acts of violence by employees, do not apply in the case of testimony con- -cerning similar acts by the respondent. Such testimony relates to whether the respondent has interfered with, restrained, or coerced its employees in their right to self-organization and collective bar- gaining, and has thereby engaged in unfair labor practices within -the meaning of the Act. Consequently, it raises direct, not collateral, -issues which it is our proper duty to determine." ^s That such a conclusion is in accordance with the clear intent of the Congress may be seen from the Reports of the Senate and House Committees in considering the reasons for confining the Act to unfair labor practices by employers Thus the Senate Com- mittee on Education and Labor , in reporting the bill to the Senate, said . "The bill is not a mere police court measure The remedies against such acts ( fraud and violence) In the State and Federal courts and by the invocation of local police authorities are now adequate, as arrests and injunctions in labor disputes throughout the country will at- test. * * * In addition , the procedure set up in this bill is not nearly so well suited as is existing law to the prevention of fraud or violence Deliberations and hearings by the Board , followed by orders that must be refereed to the Federal Courts for en- forcement ate methods of procedure that could never be sufficiently expeditious to be .effective in this connection The only results of introducing proposals of this sort into -the bill, in the opinion of the committee , would be to overwhelm the Board with counter- charges and recrimination that would prevent it from doing the task that needs to be done" ( Sen Rep No. 573, 74th Cong 1st Sess (1935) 16. 17 . See also I-1 R No. J147, 74th Cong 1st Sess 1935, 16 ) DECISIONS AND ORDERS 389 We therefore affirm the rulings of the Trial Examiner in this matter."" We come now to an examination of the evidence which we deem ad- missible upon this issue. An analysis of the convictions and pleas of guilty in all of the respondent's offers to prove, of which we take judicial notice, 7° sup- plemented by an examination of the criminal dockets of the Munic- ipal Courts of Massillon, Canton, Niles, and Cleveland, the Courts of Common Pleas of Trumbull, Mahoning, Stark, and Cuyahoga Counties, and the United States District Court for the Northern District of Ohio, Eastern Division, at Cleveland, shows that in Youngstown seven "members or former -members of the C. I. O." were indicted for the "possession and use of explosives," a felony; that three pleaded guilty to the indictment and received sentences of 1 to 20 years in the Ohio penitentiary; that three others who pleaded guilty to the indictment were placed on probation for 5 years ; and that one pleaded guilty to "malicious destruction of property to the value of $300," a felony, and was fined $300 and costs. It also appears that in Cleveland four "strikers, pickets, and persons affiliated with the S. W. O. C. and the C. I. 0." were found guilty of "possession of a bomb," a felony, and received sentences of 1 to 20 years in the Ohio penitentiary. It further appears that nine "members of lodges or unions affiliated with the C. I. O. and the S. W. O. C." pleaded guilty to indictments for "unlawfully obstruct- ing and retarding the passage of the United States Mail," a mis- demeanor; that six received suspended sentences of 6 months in jail and were placed on probation; that two received sentences of 30 days in jail and costs ; and that one received three sentences, to run con- currently, of 60 days in jail and costs. It further appears that 144 "strikers, pickets, individuals, members of, or persons affiliated with, lodges or unions affiliated with the C. I. O. and the S. W. O. C." 71 °° At Youngstown the respondent offered to prove that "six members or former members of the C 1 0 " had pleaded guilty to the possession and use of explosives ; and, at Cleve- land , that two individuals had pleaded guilty to police -court offenses In excluding such evidence , the Trial Examiner was in error . In view, however, of the fact that we take judicial notice of these pleas of guilty in the offer to prove and give them due weight in our consideration of the-purpose for which they are offered , the error is not prejudicial. i° The full purpose of the respondent's motions to reopen the proceedings to introduce evidence that strikers have pleaded guilty to and were convicted of unla sful acts during the strike is served by our judicial notice of these pleas of guilty and convictions, as set forth in the respondent 's oilers to prove. It is therefore unnecessary to reopen the record ,to receive these matteis n The respondent did not allege and the record does not disclose that more than five of the individuals wwho entered pleas of guilty or were convicted as set forth in the offers to prove 'sere employees of the respondent. We shall assume , however, that all Individuals alleged to be strikers , pickets , members of unions , or persons affiliated with the C 1 0 or the S W 0 C are employees of the respondent. 390 NATIONAL LABOR RELATIONS BOARD entered pleas of guilty to, or were found guilty of, the following offenses : Intoxication (a misdemeanor) -------------------------------- 1 Intoxication and violation of court order (a misdemeanor) 78___ 1 Threatening in a menacing manner (a misdemeanor) ---------- 1 Suspicious person (a misdemeanor)-------------------------- 4 Disturbing the peace (a misdemeanor) ------------------------ 4 Disorderly conduct (a misdemeanor) 47_______________________ 7 Interference with a police officer (a misdemeanor) ------------- 3 Discharging firearms (a misdemeanor) 78_____________________ 3 Assault and battery (a misdemeanor) 80______________________ 21 Rioting, assembling together to do an unlawful act (a misde- meanor) 81 Malicious destruction of property (a misdemeanor) ------------ 7 Unlawfully interfering etc with telegraph or telephonic mes- sages (a misdemeanor) 83__________________________________ 1 Transporting explosives ( a misdemeanor ) 84___________________ 1 Interfering with and obstructing railway tracks ( a felony) 8'__ 5 .Carrying concealed weapons (a felony ) 80_____________________ 13 With the exception of the six men who pleaded guilty to the posses- sion and use of explosives, the one man who pleaded guilty to the malicious destruction of property to the value of $300, and the four who were found guilty of possession of a bomb, we cannot concur in the suggestion that the foregoing individuals should be denied re- instatement. The Board's power of reinstatement is discretionary in nature, to be exercised in the light of all the circumstances of the case in the manner best calculated to effectuate the purposes of the Act. We have already indicated the compelling reasons for order- ing the reinstatement of employees who go out on strike caused in whole or in part by the employer's unfair labor practices.87 The 72 He was fined $15 and costs 73 He was fined $25 and costs "He was fined $15 and costs. 73 All four were fined $15 and costs. 70 One was fined $10 and costs, but the fine was suspended, two ti ere fined $15 and costs ; one was fined $25 and costs 77 Four were fined $10 and costs, but the fine was suspended in two cases ; one was fined $15 and costs; one iecerved a sentence of $50, costs, and 30 days which, except for $10, was suspended on good behavior, one received a fine of $23 and costs which, except for $10, was suspended on good behavior. 78 One was fined $5 and costs ; one was fined $10 and costs but the fine was suspended ; one was fined $15 and costs. 70 Two were fined $10 and costs ; one was fined $25 and costs and received a sentence of 30 days, but was committed to the workhouse for 9 days, during which time lie worked out both the fine and the sentence 80 One was sentenced to pay the costs, but the costs w ere suspended ; one was' fined $25 and costs , nine were fined $25 and costs and given suspended sentences of 30 days in the county tail ; one was fined $200 and costs, given a suspended sentence of 6 months in the county jail, and placed on probation foi 1 year. Two were fined costs; two were fined $15 and costs ; one received a suspended sentence of $5 and costs and 10 days ; one ieceiced a suspended sentence of $10 and costs and 10 days; one was fined $10 and costs and received a suspended sentence of 10 days , one received a sentence of 30 days ; one was fined $10 and costs DECISIONS AND ORDERS 391 respondent's argumelnt for denying reinstatement in this case comes down to the contention (1) that.the individuals guilty of violence are no longer suitable employees, and (2) that the reinstatement of such employees would tend to encourage violence in industrial disputes. In our opinion these contentions are not supported by the record in this case (except for the 11 men mentioned above) and are therefore wholly insufficient to outweigh the factors which persuade us to order reinstatement. It must be remembered that the acts of which the respondent com- plains were committed by strikers in the heat and turmoil of bitter industrial strife in which the threat of violence on the part of the respondent against the strikers was ever present and frequently car- ried into execution; that the strike was brought on fundamentally by the respondent's own unlawful acts; that the respondent had itself been guilty of brutal acts of violence in the period of organization preceding the strike; and that the respondent itself committed or was responsible for acts of violence during the strike far more seri- ous than those attributed to the strikers in question. Under these circumstances, in -.the case of all -but- 11 of- the strikers, we find no warrant in the gravity of their crimes, or in the severity of their sentences, for believing that they would not be as fit to work for the respondent now as they were before the strike. Furthermore, although the respondent refused to reinstate certain -employees at Youngstown and elsewhere, allegedly for the reason that they had carried sticks or clubs on the picket line, it paid a bonus to the members of the Back-to-Work Committee of guards at Canton for 81 Sixty-seven pleaded guilty, were fined $25 and costs, and given suspended sentences of 30 days in the county jail ; five were found guilty, were fined $ 10 and costs , but the costs were 4usnended. 82 Six pleaded guilty to "Malicious destruction of property to the value of $50" ; of these five were fined $50 and costs , and given suspended sentences , of 60 days in the county jail ; one was fined $ 300 and costs and given a suspended sentence of 30 days in the county jail. One pleaded guilty to "Malicious destruction of property to the value of $15," was sentenced to 30 days and costs , and was committed to the county jail on June 11, 1937, but his sentence was suspended on June 17, 1937 , on condition that he refrain from picketing One other was arrested for "Malicious destruction of property to the value of $6"; the charge was withdrawn but he was required to pay costs 88 He was fined $250 and costs, and sentenced to stand committed to the county jail until fine and costs were paid. 84 He was fined $100 and costs and sentenced to stand committed to the county jail until the costs were paid Si Ail five were fined $ 50 and costs and given suspended sentences of 60 days in the county jail 80 Nine were , fined $50 and costs and given suspended sentences of 60 days in the county jail . Two received suspended sentences and were placed on probation for 2 years and fined costs ; one was sentenced to 3 months in the county jail, to stand committed until the costs were paid , but was placed on probation and only served out the costs ; one was sentenced to 90 days in the county jail, to stand committed until the costs were paid , 87 See Matter of Reueington' Rand, Inc., Case No . C-145, 2 N. L . R. B. 626, 94 F. (2d) 862 (C. C. A. 2 ) ; cert . denied, 58 S. Ct. 1046. _ 392 - - NATIONAL LABOR RELATIONS BOARD patrolling the city armed with shotguns, and reinstated all such employees without question. In view of this discrimination, we are compelled to conclude that the real motive behind the respondent's_ refusal to reinstate striking employees was their union affiliation rather than an honest belief that by carrying sticks and clubs on the picket line they had proved themselves unfit for reemployment.`s Finally, the respondent., by engaging in the unfair labor practices described in Section III above, has itself violated the law of the land and thereby caused the strike of its employees in which the acts of violence occurred. While the Act imposes no criminal penalties for these unfair labor practices, it expresses an important national policy, in the light of which the respondent's illegal course of conduct must be judged and the consequences of that conduct determined. For these reasons, it does not lie in the mouth of the respondent to assert that the offenses of its striking employees are necessarily and of themselves a bar to their reinstatement," or that they are any less fit to be employees than the respondent is to be the employer. For much the same reasons we cannot conclude that the reinstate- ment of strikers in this situation will provide any material incentive to violence in future industrial conflict. Where passions are aroused by bitter industrial warfare the deterrent effects of a possible failure to achieve reinstatement by Board, order at some future date after the conclusion of the strike will scarcely be a factor of significance in the amount of -violence likely to occur. Furthermore, the primary control of such misconduct is and must be found in the police power of State and local authorities. In this case strikers guilty of miscon- duct have been prosecuted by the local authorities and have paid the penalty for such misconduct. The Act was not intended to regulate conduct subject to local police regulation but primarily to protect the right of self-organization and collective bargaining. In so far as the discouragement of crime may be accomplished in this case without sacrificing the effectuation of the policy of the Act, we exercise our discretion in excluding from our order of reinstatement those em- ployees whose crimes are sufficiently grave to disqualify them from reemployment. We think it evident, however, that the respondent's unfair labor practices should not be imperfectly remedied and that the important national policy of the Act, which is .fulfilled by the reinstatement of strikers, should not be imperfectly effectuated, merely because the respondent's striking employees have violated' other laws, where such violations have already been punished by the appropriate law-enforcement agencies and are not of such a character as to dis- qualify the strikers from reemployment. se See Matter of Kentucky Firebrick Company, Case No C-179, 3 N . L. R. B. 455 89 See Matter of United States Stamping Company , Cage No. C-203 , 5 N. L. R. B. 172. DECISIONS AND ORDERS 393: Under all these circumstances , without condoning the illegal acts of these men , and in order to effectuate the purposes of the Act, we hold that such acts do not constitute a bar to the reinstatement of any of the strikers, except those who pleaded guilty to the possession and use of explosives and the malicious destruction of property to- the value of $300 and those who were convicted of possession of a bomb. The 11 to be excluded are Charles Byers, Sidney Watkins, A. C. Scott, John Borawiec, George A. Bundas, Andrew J. Marsh,- Mike Spelich, Herman Herzog, Jesse Rentoria ( Runtario ), Pete Vas- leo, and Omer Williams. The respondent also contends that the strike as a whole was unlaw- ful from the time pickets carried clubs and engaged in acts of violence, that all the strikers were acting in concert to carry out an illegal pur- pose and were responsible for the illegal acts of any of the other strikers, and that therefore none of the strikers should be reinstated and the complaint should be dismissed. This contention ' must be considered' in the light of Section 6 of the Act of March 23, '1932, known as the Norris-LaGuardia Act: No officer or member of any association or organization, and no association or organization participating or interested in' a labor dispute shall be held responsible or liable in any court of the United States for the unlawful acts of individual officers, members, or agents except upon clear proof of actual participation in or actual authorization of such acts or of ratification of such acts after actual knowledge thereof. ( Sec. 6, Act of March 23, 1932, 47 U. S. Stat. 70, C. 90.) With the possible exception of the 67 employees who pleaded guilty to, and the five who were found guilty of, rioting or assembling to- gether to do an unlawful act, the respondent has neither proved nor offered "clear proof of actual participation in or actual authoriza- tion-(or) ratification" by strikers of the individual unlawful acts committed by other strikers . Further, the considerations recited above in connection with the acts of individual strikers apply even more clearly here. As an administrative natter the Board is not equipped to determine whether thousands of strikers participated in or authorized or ratified unlawful acts by other strikers. Therefore, although we will accept evidence of convictions of illegal concerted action obtained by the local enforcement authorities , we will not try such issues before the Board., Finally, even if there were proof of , conviction of such illegal concerted action as the respondent asserts, we would not, for reasons previously stated and in view of the respondent 's own role in the strike and the events prior thereto, consider such conviction ground for a blanket refusal to reinstate all strikers. 394 NATIONAL LABOR RELATIONS BOARD We shall, therefore, order the respondent to offer the employees who were laid off, discharged, or refused reinstatement for their union activity immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights or privileges, and to pay such employees back pay for losses suffered by reason of the respondent's unlawful acts. We shall also order the respondent, upon application, to offer similar reinstatement to its employees who were on the pay roll at its plants in the Canton, Massillon, Youngstown, Warren, Niles, and Cleveland districts on May 25, 1937, and who went out on strike on May 25 and thereafter, and have not since been fully reinstated. Such reinstatement shall be effected in. the following manner : Each employee ordered reinstated shall be entitled to reinstatement to his former or a substantiallly equivalent position in the plant where he was employed at the time of his lay-off or discharge, or at the time of the strike. In the case of those employees who were laid off or discharged, all employees hired after such lay-off or dis- charge shall, if necessary to provide positions for those to be rein- stated, be dismissed; and in the case of strikers to be reinstated all employees hired after the commencement of the strike shall, if necessary to provide positions for those to be reinstated, be dismissed. If, thereafter, by reason of a reduction in force there are not sufficient positions available in any plant for the remaining employees, in- cluding those to be reinstated, all available positions shall be dis- tributed among such remaining employees in accordance with the respondent's usual method of reducing its force, without discrim- ination against any employee because of his union affiliation or activi- ties and following a system of seniority to such extent as has here- tofore been applied in the conduct of the respondent's business. Those employees remaining after such reduction, for whom there are then no available positions, shall be placed upon a preferential list prepared in accordance with principles set forth in the previous sentence, and shall thereafter, in accordance with such list, be offered employment in their former or substantially equivalent positions at any of the respondent's plants,90 in Ohio, Monroe, Michigan, and Pittsburgh and Beaver Falls, Pennsylvania, regardless of their pre- vious place of employment, as such employment becomes available and before other persons are hired for such work, provided, however, that an employee shall remain on the preferential list until he accepts an offer of employment at any of the foregoing plants of the re- spondent in his former or substantially equivalent position, or de- clines an offer of employment in the plant where he was employed. 90 To be included among such plants are any plants which the respondent has acquired since the date of the hearing from its subsidiaries or otherwise - DECISIONS AND ORDERS 395 In our Proposed Findings of Fact and Proposed Order we required that the employees on said preferential list should be offered em- ployment in the same manner in their former or substantially equiva- lent positions at any of the respondent's plants. The respondent in its exceptions, and brief in support of its exceptions, contends, inter alia, that such a requirement would inconvenience the respond- ent out of all proportion to any benefit conferred upon the bene- ficiaries of the Proposed Order. We find that this exception, for the specific reason cited, is well taken with regard to those plants not located in Ohio, Monroe, Michigan, or Beaver Falls or Pittsburgh, Pennsylvania, and accordingly, we have so modified our findings and Order. The question is raised by the Union's exceptions whether the respondent should be permitted to deduct from the back pay due under our Order money received by an employee for work performed upon Federal, State, county, municipal, or other work-relief projects during the period for which the, respondent is under obligation to pay such employee back wages. In so far as the employee receives remuneration for such work during periods when he would other= wise have been working for the respondent, it would not seem neces- sary; in restoring him to the status quo, that he be reimbursed in such amounts. Nevertheless, to hold that -the losses accruing • from the respondent's unfair labor practices must be borne by the govern- ment or governments financing the work-relief project would not effectuate the purposes of the Act. We shall therefore order the respondent to deduct such sums from the amounts otherwise due the employees and to pay such deductions over to the appropriate. fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for the work-relief project. In its exceptions, and brief in support of its exceptions, the respond- ent contends that that portion of the Board's Proposed Order (Sec- tions 2f and 2g) by which the respondent is ordered to reinstate strikers upon application is a denial, of due process of law to the respondent because it has never been put on notice or afforded a hearing as to the rights of such strikers. Specifically, the respondent' contends that the complaint alleges the discharge of certain named individuals and the lock-outs at Canton and Massillon as unfair labor practices within the meaning of specific sections of the Act; that paragraph 16 of the complaint, dealing with the causes of the strike, does not allege' that in causing the strike the respondent coin= mitted a specific unfair labor practice; that whereas the complaint specifically names certain employees whose rights are involved, no specific reference is made to any of the employees who went out on strike, so that there is nothing to call to the attention of the 396 NATIOX_\L LABOR RELATIONS BOARD respondent the fact that the Board intended to deal with the rights of the strikers generally; and that the clear implication of the complaint must be that, in so far as the rights of individual em- ployees were concerned, its purpose was to tender an issue as to those and,those only who were named- specifically in the complaint. rr1he respondent asserts, therefore, that it was denied the opportunity to make its defense as to all strikers who were not named in the complaint. Counsel for the respondent also asserts that at the hearing before the Trial Examiner lie expressly stated that the com- plaint was not broad enough to tender any issue as to the rights of any strikers other than those specifically named in the complaint; that this statement was not dissented from by the Trial Examiner nor disputed by counsel for the Board; that counsel for the Board and the Trial Examiner misled counsel for the respondent and, impliedly at least advised the respondent that the hearing was lim- ited to a determination of the rights of the persons specifically named in the complaint, in that when the respondent offered evidence to show that the strikers generally had been guilty of acts of violence and' lawless conduct, the Trial Examiner sustained the objection of counsel for the Board to the admission of this evidence on the ground, inter alia, that- evidence of acts of violence must be limited to the individuals specifically named in the complaint. A review of the entire record discloses that there was no misunder- standing, either as the result of the complaint or the conduct at the hearing of counsel for the Board and of the Trial Examiner, as to the right of the Board to order the reinstatement with back wages of strikers not specifically named in the complaint : The Board in its decisions prior to the issuance of the complaint in this case had consistently taken the position that where a strike has been caused by unfair labor practices of an employer the Board will as a matter of remedy order the employer to reinstate the strikers upon application.A1 This remedy had been sustained by the courts.92 Paragraph 16 of the complaint in the instant case-alleging that certain unfair labor practices of the respondent had been a cause of the ' strike-laid • the factual foundation for the' reinstatment of, the strikers and sufficiently put the respondent on notice that the cus- tomary remedy would, if the Board found the facts as alleged, be ordered by the Board. Furthermore, conclusive of this matter is the fact that at the oral argument before the Board, counsel for the NMatter of Jeffrey-DeWitt Inenlatoi Company, Case No. C-21, 1 N L. R B 618. Matter of Remington Rand, Inc., Case No. C-14 5, 2 N. L. R B 626. Matter of Alaska Juneau Gold Mining Company, Case No. C-91, 2 N L. R. B. 125. Matter of Carlisle Lumber Company, Case No C-93, 2 N. L R B. 248 02 Matter of Jeffrey-DeWitt Insulator Company v. National Labor Relations Board, 91 F. (2) 134; cert. denied 302 U. S 731 DECISIONS AND ORDERS 397 respondent while reiterating the position taken in his brief and ex- ceptions, admitted that he had realized at the time of the trial of this proceeding that the issue of reinstatement of strikers was involved in the case.93 Furthermore, after examination of the record, we are convinced that neither the Trial Examiner nor the attorney for the Board ac- quiesced in the respondent's assertion that the complaint was not broad enough to tender any issue as to the reinstatement of strikers not named in the complaint; and that neither the Trial Examiner nor the attorney for the Board misled counsel for the respondent by any ruling or otherwise with respect to this issue. Finally, even if the respondent misunderstood any statement or ruling of the Trial Examiner or any statement of counsel and as the result of its misunderstanding was misled as to the nature of the evidence which it might have introduced at the hearing in defense to the reinstatement of strikers, the respondent has not been prejudiced in any way; for it has set forth in its motion to reopen and its offers to prove all such evidence as it wished to produce at the hearing, and, for reasons discussed elsewhere,-we hold that all such, evidence (other than that relating to pleas of guilty and convictions of strikers, of which we take judicial notice) is inadmissible now and should have been excluded, if offered at the hearing before the Trial Examiner. In its motion to reopen the proceeding for the taking of further evidence the respondent raises several issues not previously discussed. Reasserting that the issue of reinstating striking employees not named in the complaint was not raised by the complaint but was injected into the case for the first time by the Board's Order of April 8, 1938, the respondent contends that it should be permitted to introduce evidence in order to enable it to place before the Board facts, not in the record, some of which occurred after the hearing had been concluded, disclosing the situation as it exists with relation to the performance of the Board's Proposed Order, so that the Board may determine in the light of the facts as they now exist, whether its Proposed Findings of Fact, Proposed Conclusions of Law and °8 Chairman J. WARREN MADDEN. The complaint does state specifically that certain of your unfair labor practices caused the strike, does it not? Mr. DAY. Yes, sir. Chairman J. WARREN MADDEN . And, of course , we have decided numerous times, and I take it you have probably familiarized yourself somewhat with the unwritten law which was administered before you tried this case , that we had , with the approval of the courts, numerous times , as- part of the remedy in our order , ieinstated strikers. Mr DAY. I realize that. Channian J. WARREN MADDEN. On this same kind of situation of the pleading. Mr. DAY Well, I do not believe that it is justified on the pleading. Chairman J. WARREN MADDEN. It hadn't troubled us and it hadn't troubled the judges, and you were certainly on notice of what our procedure was in that regard. Mr. DAY. Well, I think if you will examine the complaint you will find there is no such issue tendered by it. 398 NATIONAL LABOR RELATIONS BOARD Proposed Order should be made final. Under this heading, the respondent asserts and offers to prove (1) that prior to and` soon after the reopening of such of the respondent's plants as became involved in the strike, those of the respondent's employees who had gone out on strike and had not yet returned to their work were informed at the respondent's instance of the fact that said plants would be or had been reopened and that all the persons on the respondent's pay rolls at the time of the strike, excepting those who had been guilty of acts of violence, or of provoking, condoning, or instigating acts of vio- lence, or of indulging in other unlawful acts during the strike, would be reinstated to their former jobs with the respondent upon their making application therefor or as soon as production had increased sufficiently to justify adding more .persons to the pay rolls, wholly without any discrimination on account of union membership or law- ful union activity; 9I and that normal operations in the respondent's several plants mentioned in the complaint and involved in the strike were resumed on or before July 30, 1937, except at its plants in War- ren and Niles, where such operations were resumed on or about August 30, 1937; (2) that strikers caused damage in excess of $3,500 to the property of the respondent, and damage in excess of $7,500 to the property of certain of the respondent's employees not engaged in the strike; and (3) that ,portions of the Proposed Order are wholly impossible of performance, due to the radical changes in methods of manufacture employed by the respondent since the advent of the strike, which have resulted in the dismantling, of several of the respondent's mills, have reduced the number of men necessary in sev- 'eral of the respondent's plants, have caused the elimination of a large number of positions for employees in each one of the plants, and have required the employment of an entirely different type of skilled labor from that which operated the old sheet mills used by the respondent at the time the strike was started; and that other portions of the Pro- posed Order are_ so impracticable or' so difficult as to performance that an enforcement thereof would disrupt and render impossible normal operations of business. None of these contentions constitute grounds for reopening the record. With regard to the respondent' s first assertion-that during the strike the respondent resumed its normal operations and called back to work its striking employees-the respondent contends in its brief that the evidence it seeks to introduce on this point is material as showing that-thereafter the strikers-were no longer employees, for the reason that the discharges and lock-outs, found to be a cause of 94 The respondent, at the hearing and at the oral argument before the Board , contended that all of the strikers were chargeable with the unlawful conduct of those strikers guilty of unlawful acts and that all of the strikers were therefore barred from rein- statement. DECISIONS AND ORDERS 399 the strike, had thereby been "removed from the picture" and that the strikers were continuing the strike solely because of the respond- ent's refusal to sign the agreement presented by the S. W. O. C., which we do not find to have been an unfair labor practice. The respondent's assertion and its offer to prove, however, do not in- clude a showing that the respondent ceased from engaging in the unfair labor practices which caused the strike, that it made whole the employees laid off, discharged, and locked out at Canton and Massillon, and the employees laid off, discharged and refused re- instatement at its other plants, or that it has disestablished the labor organizations whose formation and administration it dominated and interfered with. Hence, the respondent's resumption of opera- tions and offer of employment to strikers, in the manner alleged, did not remedy the unfair labor practices which caused the strike or "remove them from the picture." Accordingly, the strike con- tinued because of unfair labor practices and the strikers continued to be employees within the meaning of Section 2 (3) of the Act. Thus, even if such evidence were admitted, it would' not relieve the respondent of its obligation to reinstate strikers upon application when they apply for reinstatement, in accordance with the Order herein. As a further ground for denying this part of the respondent's motion, it appears from the face of the motion that all of the fore- going evidence which the respondent offers to prove was available at the time of the hearing, and was not offered. The proffered evidence is therefore both immaterial amid untimely. Immaterial also is the respondent's claim that y"pickets, strikers, and persons affiliated with the S. W. O. C. and the C. I. 0." caused damage to the property of the respondent and to the property of certain non-striking employees. The purpose of this offer, as appears from the respondent's brief, is to establish a basis for set-offs or recoupments against the back wages ordered by the Board for the purpose of making the strikers whole. However proper such set-offs or recoupments might be in a controversy between private litigants over private rights, there is no basis for such a claim in a contro- versy, such as this, of a public character, where conformance is sought with the public policy of the United States, as expressed in -a statute, and where those to whom the Board has awarded back pay are not private litigants in the cause. Finally, with respect to the respondent's third contention, we see nothing in the' respondent's assertions or in its offer to prove, with the exception noted below '95 which indicates any impossibility or e5 As set forth above we recognize the difficulties pointed out by the respondent in re- gard to reinstating employees to positions in plants which are removed some distance from the employee's place of residence, and have accordingly modified our order in this .respect. 400 r ATIO_\AL LABOR RELATIONS BOARD impracticability of performance of the Board's order. The order states generally the principles to be followed by the respondent in making reinstatement, and none of the matters set forth in the re- spondent's motion raise issues which are not covered by these general principles. Thus the respondent asserts that changes in methods of manufacture subsequent to the hearing have eliminated a number of previous jobs; this contingency, however, is expressly provided for in the order through the device of the preferential list. Again, while it is true that compliance with the Board's order will require certain readjustments in the respondent's business, such difficulties as the respondent may experience, as, for instance, in displacing employees hired since the strike or in reinstating men who may have lost some of their skill through unemployment, are merely the normal concomitant and the necessary result of the respondent's violation of the law.96 Our experience with similar orders of reinstatement has been that performance is neither impossible nor impracticable but can be readily carried out if the employer makes a bona fide attempt to comply. The evidence which the respondent seeks to introduce is, therefore, immaterial to the issues of the case. Further, with respect to that evidence which was available at the time of the hearing we think it plain there is no justification for reopening the record at this time. Despite the respondent's conten- tion to the contrary, the issue of the reinstatement of the strikers was present throughout the hearing and any evidence relating to that issue should have been introduced at that time. With respect to evidence not available at the hearing-mainly relating to subse- quent changes in the respondent's methods of operation-we cannot, as a matter of administration of the Act, reopen the record to receive testimony upon the constantly changing details of compliance with or performance of the Board's order. To do so would require a reopening of the record whenever the employer changed his method of operation and would delay interminably the final adjudication of the issues. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations 90 See National Labor Relations Boaid v. Remington Rand, Inc., (97 F. (2) 195). Apparently it (the respondent) believes that the substitutions (of strikers to be reinstated for employees hired since the strike) were not peremptorily required, in the sense that they must be carried out, regardless of their effect upon the company's business. That is a mistake, the order required the substitutions unconditionally, re- gardless as much of their effect on the Company's business, as of the hardship entailed upon those who must be displaced The old hands are to be offered their former jobs as soon as they can be identified, and so fat as their jobs remain; that is to say, so far as anyone else is performing the same, or substantially the same, services as they were performing or any other services which they can perform. If this in- volves disturbance to the Company's business, it is no doubt unfortunate; but, having chosen to challenge the law, it must abide the loss. DECISIONS AND ORDERS 401 Act, the National Labor Relations Board hereby orders that the respondent, Republic Steel Corporation , and its officers , agents, suc- cessors, and assigns , shall : 1. Cease and desist from : (a) Dominating or interfering with the formation or administra- tion of any labor organization of its employees or contributing finan- cial or other support thereto; (b) Discouraging membership in the Amalgamated Association of Iron, Steel and Tin Workers of North America or the Steel Work- ers Organizing Committee or any other labor organization of its employees, by, discharging and refusing to reinstate employees, or otherwise discriminating in regard to hire or tenure of employment or any term or condition of employment or by threats of such dis- crimination ; (c) In any other manner interfering with, restraining, or co- ercing its employees in the exercise of their rights to self-organiza- tion, to form, join, or assist labor organizations , to bargain collectively through representatives of their own choosing , and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid and protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Withdraw all recognition from the Plan of Employee Repre- sentation , and its successors-the Employees' Representative Associa- tion and the Independent Association of Republic Employees at Massillon ; the Plan of Employee Representation , and its successors- the Employees' Representative Association, and the Steel Workers Union of America-and the, Plan of Representation of Employees at Canton; the Plan of Employee Representation , and its successors- the Employee Representation Plan, and the Independent Federation of Republic Employees at Youngstown; the Plan of Employee Repre- sentation , and its successor-the Employees' Independent Association at Warren; the Plan of Employee Representation , and its successor- the Employees' Representative Association at Cleveland; the Central Council of Employee Representatives; and each of them, as the repre- sentatives of any of its employees at its plants in the Massillon , Canton, Youngstown, Warren, Niles, and Cleveland districts, respectively, for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment or condi- tions of work; and completely disestablish the foregoing labor organizations as such representatives; (b) Offer to Peter Mouyios, Victor Arias, Mike Ugranovich, Will S. Wright, Sabri Shaban, and George Troyanovich (group A) ; John Lazar, Michael Krill, Balare Chismus, William A. Haren, 402 NATIONAL LABOR RELATIONS BOARD Charles Neverdusky, Anthony Martin de Long, Richard Green, and Hallie P. Hite (group B), in the manner provided in the section en- titled "The Remedy" above, immediate and full reinstatement to their, former or substantially equivalent positions without prejudice to their seniority and other rights and privileges; and make them whole for any losses of pay they have suffered by reason of the respond- ,ent's discriminatory acts, by payment to each of them, respectively; of a sum of money equal to that which each of them would normally have earned as wages during the period, in the case of group A, from the date of their lay-off or discharge until the date when the strike began, and again from the date on which operations in their departments began after the reopening of the plants involved to the -date of the offer of reinstatement as provided herein, and in the case of group B, from the date of the refusal to reinstate until the date, of the offer of reinstatement as provided herein ; less the amounts, if any, which each earned during said period, deducting, however, from the amount otherwise due to each of the said employees, monies re- ceived by said employees during said periods for work performed upon Federal, State, county, municipal, or other work-relief projects; and pay over the amounts, so deducted, to the appropriate fiscal, agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects ; (c) Make whole Thomas Cikah, John Popik, Frank Pirichy, Michael Naletrich, Wilbert Neuman (group C) ; Thomas White, Charles Bernard Fagan, John Exall, John Petak, Mathew Babich, Gaetano Armeli, and Fred Korecky (group D) for any losses of pay they have suffered by reason of the respondent's discriminatory acts, by payment to each of them, respectively, of a sum of money equal to that which each of them would normally have earned as wages during the period, in the case of group C, from the date of their discharge to the date of their offer of reinstatement prior to the strike, and in the case of group D, from the date of their lay- off or discharge until the date of the strike; less the amounts, if any, which each earned during said period, deducting, however, from the amount otherwise due to each of the said employees, monies received by said employees during said periods for work performed upon Federal, State, county, municipal or other work-relief projects; and pay over the amounts, so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (d) Make whole the employees of the Canton tin-plate mill who were employed on May 4, 1937, for any loss of pay they have suf- fered by reason of the closing of the Canton tin-plate mill on May DECISIONS AND ORDERS 403 5. 1937, by payment to each of them, respectively , of a sum equal to that which each of them would normally have earned as wages dur- ing the period from May 5 to May 24, 1937 , less the amount, if any, which each has earned during said period; (e) Make whole the employees of the Massillon Works, who were employed on May 19, 1937, for any loss of pay they have suffered by reason of the closing of the Massillon Works on May 20, 1937, by payment to each of them, respectively, of a sum which each of them would normally have earned as wages during the period from May 20 to May 23, 1937 , less the amount , if any, which each has earned during said period; (f) Upon application, offer to those employees at its plants in the Canton, Massillon, Youngstown, Warren, Niles, and Cleveland dis- tricts, (including those referred to as groups C and D in paragraph 2 (c) above), who went on strike on May 25, 1937, and thereafter, (except Charles Byers, Sidney Watkins, A. C. Scott, John Borawiec, George A. Bundas, Andrew J. Marsh, Mike Spelich, Herman Herzog, Jesse Rentario (Runtario), Pete Vasleo, and Omer Williams), immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights or privileges, in the manner provided in the section entitled "The Remedy" above; and place those employees for whom employ- ment is not immediately available upon a preferential list in the manner set forth in said section, and thereafter, in said manner, offer them employment as it becomes available; (g) Make whole all the employees referred to in paragraph 2 (f) above for any losses they may suffer by reason of any refusal of reinstatement or placement upon the preferential list required by paragraph 2 (f) above by payment to each of them of a sum of money equal to that which each of them would normally have earned as wages during the period from five (5) days after the elate of application to the date of offer of reinstatement or placement upon the preferential list, less the amount, if any, which each, respectively, earned during said period, deducting, however, from the amounts otherwise due to each of the said employees, monies received by said employees during said period for work performed upon Federal, State, county, municipal, or other work-relief projects; and pay over the amounts, so deducted, to the appropriate fiscal agency of the Federal, State , county, municipal or other government or govern- ments which supplied the funds for said work -relief projects; (h) Post immediately in conspicuous places in its plants in the Canton, Massillon, Youngstown, Warren, Niles, and Cleveland dis- tricts, and maintain for it period of at least sixty (60) consecutive clays, notices to its employees stating that the respondent will cease and desist in the manner aforesaid and that recognition is withdrawn 134008-39-vol. ix-27 404 NATIONAL LABOR RELATIONS BOARD from the labor organizations named in paragraph 2 (a) above a' representatives of any of the employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work, and that the foregoing labor organizations are completely disestablished < such representatives; (i) Notify the National Labor Relations Board in writing what steps the respondent has taken to comply with the Order herein. And it is, further ordered that the allegations of the complaint with respect to the discharge and refusal to reinstate Harry Rigby be, and they hereby are, dismissed. 0