Communications Workers of America

684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD membership in the Petitioner, that he solicited employees to join the Petitioner before the election, and that he was appointed tem- porary secretary of the Petitioner 4 days after the election, pending the election of permanent officers therein. However, these facts fall short of justifying a finding that any threats made by Schwartz in the course of his preelection activities may be attributed to the Peti- tioner. For we are unable to infer therefrom that the Petitioner either authorized Schwartz' solicitation activities prior to the elec- tion or that it subsequently ratified the conduct in question. Absent evidence to this effect, the Employer's exceptions in the instant con- nection can have no merit .4 We, accordingly, overrule the Employer's objections, as recom- mended by the Regional Director. As the Petitioner has secured a majority of the votes cast, we shall certify it as the bargaining representative of the employees in the appropriate unit. [The Board certified Stove Mounters International Union of North America, AFL-CIO, as the collective-bargaining representative of the employees of the Employer in the appropriate unit.] 4See W. A. Ransom Lumber Coavpwng,114 NLRB 1418. The Employer has likewise failed to advert to evidence which impairs the validity of the Regional Director's finding that the conduct of employee van Esler before the election also is not attributable to the Petitioner , or which supports its apparent contention that the Regional Director's Investigation herein was an inadequate one. Its suggestion that a hearing be held in the case Is accordingly rejected. Communications Workers of America, AFL-CIO and Ohio Con- solidated Telephone Company Local No. 4372, Communications Workers of America, AFL-CIO and_ Ohio Consolidated Telephone Company. Cases Nos. 9-CB- 827 and 9-CB-8$8. May 1, 1958 DECISION AND ORDER On April 11, 1957, Trial Examiner C. W. Whittemore issued his Intermediate Report in this case, finding that the Respondents had not engaged in the alleged unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act, and recommending that the com- plaint be dismissed in its entirety, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Company and the General Counsel filed exceptions to the Intermediate Report and sup- porting briefs. The Respondents filed a brief in support,of the Inter- mediate Report. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no error which can plainly be termed 120 NLRB No. 96. COMMUNICATIONS WORKERS OF AMERICA 685 prejudicial was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the relevant findings of fact made by the Trial Examiner, as indicated below, but not his conclusions or recommendations. 1. As found by the Trial Examiner, the record shows, and the Respondent labor organizations do not strenuously dispute, that dur- ing the course of an economic strike against the Company they engaged in many incidents of coercive conduct or misconduct designed to impede the Company's operations and intimidate the personnel en- gaging in such operations. On July 18, 1956, shortly after the strike began, agents of the Respondents followed District Manager Matz home from work in superior numbers.' On July 19 agents of the Respondents prevented Matz and Foreman Kerns from leaving a com- pany exchange until police were called to the rescue. In the after- noon of July 29, as two company supervisors were about to enter the Sciotoville exchange with an out-of-town person apparently not known to the pickets, agents of the Respondents prevented the "outsider" from entering. In the evening of the same day, a repetition of the incident occurred when the Respondents' agents admittedly stated that they wanted no "strangers" to go in, but again the police were called to the rescue. On July 30 agents of the Respondents prevented com- pany personnel from entering the New Boston and Sciotoville ex- changes with supplies. On about the same day the Respondents' agents also prevented employee Maynard from entering the Sciotoville ex- change until escorted in by police. On August 13, as two "strangers" were accompanying company supervisors repairing company equip- ment on the Matthews' farm, agents of the Respondents warned the "strangers " to get out of town if they had any concern for their families. As the two- "strangers" were dining at the Turkey Shop restaurant that evening, agents of the Respondents "asked" them if they were getting out of town that night; and a large group of local residents carried out the warning to leave town by overturning their car, an act for which the Respondents did not disclaim responsibility. On August 22 an agent of the Respondents threatened a company repairman with violence for taking his photograph. While company personnel were righting an overturned company truck in Reverend Butterbaugh's yard on August 23, one of the Respondents' agents was overheard to remark that he was going to get blood and hair on a pick handle he was wielding. On August 24 a crowd of the Respondents' agents uttered insulting remarks and vile names at company personnel repairing company equipment at the Star Yard, and followed them back to town blowing their horns all the way. On September 18 com- 1 Member Fanning would not rely on this incident as a violation of Section 8 (b) (1) (A). 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany personnel were engaged in some company work on Woodland Avenue when one of a larger number of agents of the Respondents reached into a company truck parked at the curb and opened the glove compartment. When one of this number was shoved back by a com- pany supervisor, the Respondents' agents engaged in violence and forced the company personnel to leave. 2. The Trial Examiner found that some five of the foregoing inci- dents constituted coercive misconduct by the Respondents. He fur- ther found that the Respondents also engaged in various other inci- dents, including those summarized above. The Respondents did not except to these findings and we agree with the finding that the Respondents engaged in such incidents. Unlike the Trial Examiner, however, we find that in all the instances above set forth the Respondents violated Section 8 (b) (1) (A) of the Act. The Trial Examiner concluded that the Respondents did not vio- late Section 8 (b) (1) (A), because the incidents did not tend to restrain or coerce employees in the exercise of their statutory rights. He reasoned that the incidents of coercive misconduct had no tendency to restrain employees because they were directed against victims who at one time or another had been supervisors. However, we find that the object of one instance of misconduct (Maynard) was in fact an employee and not a supervisor, and the other victims were perform- ing work of rank-and-file employees as strike replacements regardless of their quondam status as supervisors either of the Company or of related corporations from other areas . Moreover, even if the Respondents' misconduct were directed entirely against personnel acting as supervisors , which was not the case here, the circumstances were such that the Company's striking and nonstriking employees were aware of it, and thereby tended to be restrained and coerced in their own exercise of the right to continue or discontinue striking as they wished 2 The Trial Examiner further reasoned that the Respondents' mis- conduct, apparently even assuming that it restrained or coerced employees, was justified by the Company's own antiunion conduct, which disqualified it from filing charges against the Respondents and manifested a contemptuousness of its employees' statutory rights. However, the Act provided the Respondents with ready redress, if they believed the Company had engaged in misconduct by filing an appropriate charge with the General Counsel for his independent determination as to whether to proceed with the issuance and prose- 2 We do not agree with the Trial Examiner's attempt to distinguish the contrary author- ity of W. T. Smith Lumber Company, 116 NLRB 507, enfd . 243 P. 2d 745 (C. A. 5). The purported distinction was based in part on the irrelevant testimony of many employees that they were not in fact restrained or coerced by the respondents ' misconduct. See also Brooklyn Spring Corporation, 113 NLRB 815 , engd. 233 F. 2d 539 (C. A. 2). COMMUNICATIONS WORKERS OF AMERICA 687 cution of a complaint. This the Respondents did not do. In the circumstances of this case, we may not permit the Respondents to restrain or coerce employees in the exercise of their statutory rights merely because the Company may also have engaged in misconduct.' Accordingly, we find that the Respondents restrained and coerced employees within the meaning of Section 8 (b) (1) (A) of the Act. 3. The General Counsel and the Company assail the Trial Examiner as prejudiced because of adverse rulings and recommendations, and criticize him because of certain comments he made during the hearing and in his Intermediate Report. Although we have found that the record as it stands warrants the 8 (b) (1) (A) finding and cease and desist order sought, thus making it unnecessary to consider the attack, we have nevertheless given the matter consideration because of its importance in assuring the public of the fairness and impar- tiality of our hearings. Without going into detail, we wish it to be understood that we do not endorse those rulings and comments of the Trial Examiner which may give the appearance of partiality' by extending the case beyond the single issue presented by the General Counsel, to wit, whether the Respondents had restrained or coerced employees in the exercise of their statutory rights. As evidence and findings that the Company may also have unlawfully interfered with these employee rights are irrelevant, we do not consider or adopt them. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, Communications Workers of America, AFL-CIO, and its Local No. 4372, and their re- spective officers, representatives, agents, successors, and assigns shall: 1. Cease and desist from in any manner restraining or coercing em- ployees of Ohio Consolidated Telephone Company or any other employer in the exercise of the rights 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) Post in conspicuous places in their business offices, meeting halls, and all other places where notices to their members are customarily posted, copies of the notice attached hereto marked "Ap- 3 See Sunset Line and Twine Company, 79 NLRB 1487, footnote 6. We do not agree with the Trial Examiner's purported analogy to N. L. R. B. v. Indiana & Michigan Elec- tric Company, 318 U. S. 9, decided before the Act was amended so as to confer equal protection on the employees' right to refrain from union activity. ' See Better Monkey Grip Co., 113 NLRB 938. 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pendix." 5 Copies of said notice, to be furnished by the Regional Di- rector for the Ninth Region, after being duly signed by official repre- sentatives of the Respondents, shall be posted by the Respondents immediately upon receipt thereof and maintained by them for sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered , defaced, or covered by any other material. (b) Mail signed copies of the notice to the Regional Director for the Ninth Region for posting, Ohio Consolidated Telephone Company willing, at all locations where notices to the Company's employees are customarily posted. Copies of said notice, to be furnished by the Regional Director for the Ninth Region, after being duly signed by authorized representatives of the Respondents shall be forthwith re- turned to the Regional Director for such posting. (c) Notify the Regional Director for the Ninth Region in writing, within ten (10) days from the date of this Order, what steps have been taken to comply herewith. 6In the event that this Order is enforced by a decree of a United States Court of Ap- peals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL MEMBERS OF COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, AND ITS LOCAL 4372, AND To ALL EMPLoYEEs OF OHIO CONSOLIDATED TELEPHONE COMPANY Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Re- lations Act as amended, we hereby notify you that : WE WILL NOT in any manner restrain or coerce employees of Ohio Consolidated Telephone Company or any other employer in the exercise of the rights guaranteed in Section 7 of the Act. COMMUNICATIONS WORKERS OF AMERICA, - AFL-CIO, Labor Organization. Dated---------------- By-------------------------------------- (Representative )` (Title) LocAL 4372, COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. COMMUNICATIONS WORKERS OF AMERICA 689 INTERMEDIATE REPORT STATEMENT OF THE CASE Charges having been duly filed and served, a complaint and notice of hearing thereon having been isued and served by the General Counsel of the National Labor Relations Board, and answers having been filed by the above-named Re- spondents, a hearing involving allegations of unfair labor practices in violation of Section 8 (b) (1) (A) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, was held in Portsmouth, Ohio, on various dates be- tween December 11, 1956, and January 29, 1957, before the duly designated Trial Examiner. As to the unfair labor practices, the complaint alleges and the answers deny that the Respondents: (1) In the course of a strike against the Charging Party,' and by and through their officers, agents, and representatives, engaged in acts of vio- lence and threatened violence against supervisors and employees of the Charging Party; and (2) thereby restrained and coerced employees of the Charging Party in the exercise of rights guaranteed by Section 7 of the Act. At the hearing all parties were represented, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally upon the record, and to file briefs and proposed find- ings of fact and conclusions of law. Arguments were waived. Briefs have been received from all parties and have been carefully considered in the preparation of this Report. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE CHARGING PARTY Ohio Consolidated Telephone Company, a public utility, is now and at all times material hereto has been engaged in the business of providing local and long dis- tance telephone service to subscribers in 40 communities in the State of Ohio. In the course and conduct of its business during the year ending December 31, 1955, it received for its telephone services within and without the State of Ohio total revenues of more than $4,900,000. The Charging Party is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATIONS INVOLVED Communications Workers of America , AFL-CIO, and Local 4372, Communi- cations Workers of America, AFL-CIO, are labor organizations admitting to mem- bership employees of the Charging Party. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory statement In his complaint, General Counsel confines allegations of unfair labor practices to certain conduct on the part of strikers during a long and bitter strike of more than 200 employees against the Ohio Consolidated Telephone Company-a strike which, on January 29, 1957, when the hearing closed, had been continuous in and near Portsmouth, Ohio, since July 14, 1956. At the hearing, in presenting their case and in opposing the proffer of much defense evidence, the two counsel for General Counsel hewed strictly to the literal boundaries of this alleged conduct, arguing that all events of the strike not attacked by the complaint as illegal were irrelevant and immaterial. This position is maintained in their brief. Were the Trial Examiner to be guided wholly by General Counsel's wishes, he might well be led to a conclusion as tangential to its context as that of the fourth blind man in the ancient Hindu tale, who declared that an elephant was like a whip, since his hands had grasped only its tail .2 The questions in this case are involved. Their solutions are not to be easily and quickly reached. It is the opinion of the Trial Examiner, who during the month- 1 Attorney Egbert withdrew from the case after the first week of hearing. 2 This Sanskrit tale is perhaps most simply retold by Berta Metzger, in Picture Tales from India (Frederick A. Stokes Co., 1942). It reads : Once there were tour men who had been blind from birth. As they went about the city together, they were always quarreling about this or that, and each one 483142-59-vol. 120-45 690 DECISIONS OF NATIONAL LABOR RELATIONS "BOARD long hearing listened to the testimony of many scores of witnesses, liberally larded by arguments of all counsel, that to attain the most probable truth and reasonable- ness of the factual events at issue and their legal effects, consideration of the con- text of,such events is necessary, and only arbitrarily may be ignored. The chief ultimate legal conclusion sought by General Counsel may be defined, of course, in comparatively simple terms. It is: by being responsible for certain misconduct of some strikers the Union coercively deprived all strikers of their right (guaranteed by Section 7 of the Act) not to strike. Proceeding backward from this ultimate focal point, however, leads into a number of more perplexing alleyways of appraisal. For example, as found in detail below, all of the alleged misconduct was directed against supervisors who, as General Counsel concedes, have no rights under Section 7 of the Act. There were no employee replacements, at any time during this period. And only one striking employee abandoned the strike and returned to work. As to that one employee, there is not the slightest bit of evidence that any attempt, by word or deed, was made to prevent her from working. Thus the record lacks both pleadings and evidence that any nonstriking employee of the Charging Party was directly coerced, or was the immediate victim of any misconduct which might be construed as coercive. Yet during the hearing General Counsel voiced the con- tention that by engaging in misconduct against supervisors the strikers actually in- timidated and coerced themselves.3 Only by route of the most reasonable inference, it appears to the Trial Examiner, may the conclusion sought by General Counsel in the foregoing example be reached. And pursuit of the most reasonable inference calls for the exploration of all possible inferences, which necessarily requires the ascertainment and inspection of many surrounding facts and events .4 Both as potential grounds for inference and as factors bearing upon the credibility of witnesses (essential to the determination as to whether or not certain alleged acts of misconduct really took place), a number of concurrent events will be con- sidered by the Trial Examiner, despite General Counsel's claim that they are irrelevant. As briefly as possible, therefore, such factual background is now set forth. B. Background 1. The strike in general Until July 1956, and for the preceding 14 years of contractual relation between the Respondent Unions and the Ohio Consolidated, there had never been a strike always insisted that he alone was right And the people became very tired of listen- tug to their endless quarrels One day a mail who was a great iokei gathered a crowd about him and said to the blind men, "I have heard your wisdom Which of you is the wisest'1" "I am i" "No. I am i" they cried, and began one of their deafening quarrels When their voices gave out, the joker said, "I am sure you aie all very wise, but let its prove which of you is the wisest There is approaching us it strange creature called the elephant Each of you shall tell me what lie is like As the elephant passed, the tour men extended their hands. The first man telt the ti ink and cried, "The elephant is like a huge snake" The second man Celt the leg and said, "Not The elephant is like a huge tree." The third man telt the elephant's body and cried, "No, no? The elephant is like a huge granary " The fourth man seized hold of the tail, and cried, "No, no, no! You are all wiong i The elephant is like it whip " The people laughed heartily, but an old man who was noted for his wisdom said, "Thus it is with all men who see only part of the truth " i At page 323 of the ti anscript there occurred the following colloquy : TRIAL EXAMINER • By restraining foremen they restrained themselves, then, is that ita Mr DOOLEY By engaging in conduct of a coei cave nature directed at people who were working foi the company, striking employees in a group engaging in this, if you want to say they restrained themselves, yes * The inference sought is not directly apparent, as in the case of the effect of a coercive act on the part of a supervisor against an employee A threat by a supervisor to dis- cilarge an employee because of his union activities is, per .4e, illegal A threat by an gm,plgyee, against a supervior, may be "unprotected"-that is, the employee is not pro- tected by the Act against discharge, but it is not, per se, illegal under the Act. COMMUNICATIONS WORKERS OF AMERICA 6191. of more than a few hours' duration. That long and peaceful relationship- came to an abrupt end, however, upon assumption of control of Ohio Consolidated . , by General Telephone Company of Ohio and the expiration of the current contract in July 1956.6 Negotiations failed to produce a new contract. Why they failed is not an issue in. this case. On July 9 members of Local 4372 met and voted unanimously to strike. The strike began on . July 14 and, as noted above , from that date until the close of the hearing all employees in the striking unit of about 210, except 1, remained on strike. The strike action of the Local was approved and financially. supported by its parent organization , the CWA. For the first couple of weeks no serious event marred the conduct of peaceful picketing. (Maynard Matz, district manager, admitted that "during the first two weeks of the strike" there had been no difficulty in getting into and out of the exchanges.) In the last part of July , however, the Company began bringing,in "supervisors" from outside the Portsmouth area-some of them employed by other companies of the General system. (The work, if any, performed by these outside "supervisors" will be described later in this Report.) Portsmouth public sympathy and support of the strikers, a majority of whom were women of long service with the company in this community, became aroused. The population of Scioto County, which includes the city of Portsmouth, was esti- mated at the hearing by a witness for General Counsel as approximately 90,000.9 It is undisputed that in the early days of the strike the Portsmouth CIO Council recorded its support of the strike , and that in this area there are about 11,300 AFL-CIO members . It is likewise undisputed that financial support was contributed to the striking local of CWA by some 25 specifically named labor organizations of that locality. High officials of the State of Ohio sought to obtain settlement of the strike. It is undisputed that at a meeting on October 15, 1956, of officials of both the Union and the Ohio Consolidated, Governor Frank J . Lausche (now a member of the U. S. Senate), urged the parties to consider submitting all issues of the strike to arbi- tration. The Union promptly agreed to the suggestion , expressing willingness to submit all issues to arbitration "by anyone, any third person, the Governor or anyone selected by the Governor , or anyone selected by the Industrial Commission of Ohio." 7 Officials of Ohio Consolidated, however, refused to submit matters to arbitration. 2. Violence patterns Since the bulk of General Counsel's complaint is concerned with allegations of violence or threats of violence against supervisors and by. strikers, and because the Union urges in effect that violence , if such occurred, was instigated by the super- visors themselves, the Trial Examiner believes to be relevant not only all facts bearing upon specific incidents , but an apparent policy pattern of violence established by the Charging Party itself. Chronologically, the first act of threatened violence was visited upon a _ striker by workmen of an outside contractor while under supervision of Ohio Consolidated supervisors, and the incident was later not only tacitly approved by the General Counsel of the Ohio Consolidated but also used by him to voice a threat against the same striker. In substance, the incident was as follows .8 Shortly after July 14, 8 Although the record does not reveal the precise date when control of Ohio Consolidated passed into the bands of General , it appears to have been not long before expiration of :the 1956 contract. The following is quoted from the August 7, 1956, issue of The Portsmouth Times, introduced into evidence by General Counsel: "New York (AP) Shareowners of General Telephone Corp. and Continental Telephone Co. approved a merger of the two companies at special meetings today. . . . Last fall . . General acquired 50.49 percent of the common stock of Continental . Continental is a telephone holding company. . . . One of its companies is the Ohio -Consolidated Telephone Co. with 39 exchanges in Ohio . . .. The merger was recommended by directors of each company on June 18." - 9 The witness was H. I. Bassier , business manager of The Portsmouth Times. 7.The quotations are from the uncontradicted testimony of Attorney Eisnaugle, who was present at the meeting called by Governor Lausche. s The description of the incident is based upon the credible testimony of Farrell Lykins, a telephone tester employed by the Charging Party for 13 years. That the incident oc- curred is not denied by Supervisors Matz and Kern, although Matz said he was across the street at the time and Kern's version differs in some respects. The third supervisor present, Conley, was not called as a witness. 692 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD an4 to repair the first "cable slashing" after the strike began, Supervisors Matz, Kein.. and Conley were overseeing certain excavation work being performed :by a crew of Negroes, in a Portsmouth public alley. Upon being relieved of picket duty at a nearby exchange, Farrell Lykins went down this alley to take pictures. He was alone. At first no one gave him attention, and then someone mentioned that he was a striker. Thereupon one worker threatened him with a pickax handle and a chunk of concrete while others surrounded him. The supervisors merely stood by watching. Lykins called out for assistance to a passing citizen and with him finally left the alley. On August 17, while Lykins was on picket duty at another exchange, it is undisputed that Attorney Sidney P. Griffith, general counsel of Ohio Consolidated, in the presence of Vice President Cole, warned Lykins "I'll get those colored people down from the north end to chase you around with pick axe handles again." On July 24, shortly after the first incident as related by Lykins, the Ohio Con- solP.dated began congregating at the scenes of cable repairs, an increasing number of individuals not previously employed, but brought in from various parts of the country. District Manager Matz testified all these were "supervisors." The testi- Motiy -of strikers, undisputed, is to the effect that many of these strangers to the area, or "outsiders," did no work at the cable repair sites. Striking linemen of long experience testified without contradiction that such repairs required but two men, yet on many such jobs, as described below, there would be a dozen or more so-called "supervisors" standing around the job site. Further support for the con- clusion that these "outsiders" were called in by the Charging Party for purposes other than actually performing the work previously done by the strikers is found in the undisputed testimony of certain professional "investigators," hired by the Company under circumstances fully described in the next section, to the effect that officials of the Telephone Company urged at least two of them to pose as real linemen and join the crews of "outsiders" and supervisors. It is well established, by the testimony not only of strikers but also of District Manager Matz, that the appearance of these "outsiders" was followed by increasing resentment, displayed in various ways, on the part of many Portsmouth citizens who were not employees of the telephone company. Public feeling increased to a culmi- nating point on October 15 when, according to one of General Counsel's witnesses, Erma Lou Callehan, "the strikers and everybody else in Portsmouth, I think, went to the exchanges," and then came to the nearby motel where a number of secretaries to officials, supervisors, and "outsiders" were staying. Callehan said, succinctly, "That's why we left" Portsmouth, on October 15 .9 3. The Company's hiring of investigators During the latter part of August, well within the period of alleged misconduct by strikers, it is undisputed that Clare Williams, president of the Ohio Consolidated, solicited and obtained the services of Charles W. Crouthers, then employed by the William J. Burns International Detective Agency, to come to Portsmouth, in his private capacity and with other operatives, to perform investigation services relating to the strike. Credible testimony of these investigators establishes that upon their arrival in Portsmouth they were urged by company officials to break the strike by removing from such strike, in any manner they saw fit, four named strike leaders. The investigators failed to assault the strikers, and they were within a few days dis- missed, and at the time of the hearing had not been paid for their services. A sum maryof the material facts follows. In-mid-August, Crouthers, then an investigator and contract solicitor for the Burns Agency, met with Williams and Griffith, the latter previously identified as counsel for the Telephone Company, in Griffith's Columbus, Ohio, office. A contract was signed, under terms of which the Burns Agency would furnish the Telephone Company with agents to investigate acts of arson, vandalism, and sabotage against the Company. The contract was forwarded to the Burns' Pittsburg office. An office official in Pittsburg, however, under Crouthers' name wired the Telephone Company that because of manpower shortage the agreement could not be fulfilled. Upon re- ceipt of this wire, Williams telephoned directly to Crouthers, at the latter's home, and prevailed upon him to take the assignment on his own. Crouthers then returned to Columbus, and orally agreed with Griffith to obtain investigators for the purposes set Y In passing, it may be well at this point to note that as to these October 15 events, described by Callehan, although the complaint as issued contained specific allegations, such allegations were stricken upon motion by General Counsel, at the conclusion of his case. COMMUNICATIONS WORKERS OF AMERICA 693 out in the canceled contract with Burns, and at the same financial terms. It was further agreed that Griffith would pay him for such services, because, as Crouthers testified without contradiction, "they did not want no record of the Telephone- -Com-pany paying me, and Mr. Griffith, representing them, being their attorney, of course would be the one to pay me." At 3 or 4 o'clock of the Saturday morning before Labor Day, Crouthers arrived in Portsmouth with four investigators he had hired, including one regularly employed guard of the Burns Agency. They were met at a Portsmouth motel, through pre- arrangement, by three management officials: Public Relations Director Zachman (for both Ohio Consolidated and General), Industrial Relations Director Frank Lennberg, and either General Plant Manager Ferris Pratt or Division Manager Edward C. Kimball.10 In addition to receiving instructions regarding the investigation of cable cutting, the investigators were asked to remove four of the striker leaders from further strike activity in any manner they saw fit-by running them down with an automobile if necessary. The four strikers named were Hipple, Bush, Shepherd, and Cook. The officials identified them by displaying photographs previously taken. The investigators neither agreed nor disagreed to engage in such acts of violence. They met the next night with Kimball and General Manager Purpura, and were again urged to dispose of the four strike leaders. Also on this occasion they were instructed to mingle with the crowd the next day, in the Labor Day parade, and to participate in, if it occurred, a rumored wrecking of the union float. At the Saturday morning meeting, Zachman urged two of the investigators (Bice and Kerr), because of their size, to pose as telephone linemen. The two declined, Kerr stating that he "didn't want to be known" and had better not "get tangled up in that." Crouthers had to leave Portsmouth the evening of Labor Day, apparently to re- turn to his job with Burns. Investigators Tindal, Kerr, and Bice remained and met with Kimball and Griffith the next night, September 4. In substance the investiga- tors were told by the officials that since they had not unearthed information of legal value and had not gotten the four strikers "out of the picture," according to Tindal's testimony, their services were no longer needed. On this occasion Kimball told them that had they been able to "do this one thing, that the negotiations and the strike and everything would be disintegrated entirely," as had happened dur- ing a Portsmouth cab strike when one of the leaders was "out of the picture and the strike collapsed." According to Kimball's testimony, the investigators were hired after "discussion in policy meetings," that he concurred, and that there "was $125.00 paid," Purpura paying $100 and Zachman $25, as expenses. According to Crouthers, his attorney has unsuccessfully sought to receive fur- ther payment on his bill, which he said amounted to more than $3,000.11 10 Two Investigators testified that Pratt was the third official present, three said It was Kimball As noted later, Kimball was the only management representative to testify about this matter at all, and he said that at the time of the meeting in Portsmouth be was in Griffith's Columbus office. Although, for reasons fully outlined, the Trial Examiner can place small reliance upon Kimball's testimony, and there is no explanation in the record for his being In Griffith's legal office at 3 or 4 o'clock In the morning, It may well be that, since it Ras their first meeting with such officials, the investigators confused the identity of Kimball and Pratt. As further noted, above, Kimball admitted meeting with them the following night. In any event, there is no dispute that company officials met the investigators when they arrived in Portsmouth 11 The foregoing findings are based upon testimony of the five investigators, in major part undisputed. That their testimony should contain minor inconsistencies in identify- ing who was present or who said what on each of several occasions, the Trial Examiner considers to be put normal when a series of witnesses testify about a series of past events. Had their testimony coincided in each minute detail, suspicion would be reasonable that it was the recital of a lesson rehearsed. General Counsel offered no witness to rebut the Union's testimony on this matter. Counsel for the company brought forward none of the high officials named by the investigators, except Division Manager Kimball. In substance Kimball denied being present at the first meeting with Crouthers and his men, denied having given any instructions at the second meeting about disposing of the four strike leaders, and denied that at the final meeting the investigators were told they were being dismissed in part because they had failed to carry out such instructions. The Trial Examiner does not credit his denials as to the second and final meetings. As noted above, it may be that Kimball was not present at the first meeting, and that the third official was Pratt, who did not testify. In nearly 20 years of conducting NLRB hearings, and observing many hundreds of witnesses, the Trial Examiner has seldom seen 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Contrary to the position stoutly maintained by'counsel for General Counsel and counsel for the Charging Party, the Trial Examiner believes that this factor of com- pany policy must be considered carefully not only because it is relevant to the gen- eral question as to whether or not the Board should exercise its authority, as noted by the U. S. Supreme Court,12 and dismiss the complaint on the ground that the Company's charges are so related to its own conspiracy to engage in illegal conduct as to constitute "an abuse of the Board's processes," but also because it is relevant to the question as to whether or not any or all of the incidents of alleged miscon- duct on the part of strikers were actually instigated by company supervisors and "outsiders." 4. Publicity Both General Counsel and counsel for the Charging Party rely mainly upon the Board's theory in W. T. Smith Lumber Company (116 NLRB 507), issued on August 9, 1956, shortly after the strike began in this case. During the second day of the hearing, counsel for the company declared. "it is . basic to this case." The Board's decision will be quoted in a later section. At this point only that part is referred to in which the Board, adopting the Trial Examiner's finding that strikers were coerced by "learning of violent conduct by a union against supervisors," ordered the union to cease and desist from engaging in certain conduct "under such circum- stances as to insure that" striking employees "will learn of it." Whether or not the one event followed as the direct result of the other, it is a .historical fact that after the publication of the Smith decision, the Charging Party made certain that nonparticipating strikers should learn of incidents of claimed misconduct on the part of their fellow-strikers. In September the Company pro- vided a national publication-Business Week, with photographs taken by its own supervisors-one of which bears the surprising legend "Phone Company supervisor took pictures at right of pickets preparing to attack phone repair crew." 'The Telephone Company had reprints of the article made and, according to its own dis- trict manager, distributed them with its telephone bills. In the local courts the Telephone Company brought many charges against strik- ers, and subpenaed many strikers to attend the court proceedings, although some were not called upon to testify. Neither General Counsel nor counsel for the Com- pany challenged the oral contention of counsel for the Union: "these people were subpoenaed, every member subpoenaed by the Company and made to sit in that one who displayed more discomfiture on the stand than Kimball. He sat throughout his testimony slumped in the witness box, directly facing the Trial Examiner but keeping his eyes averted-not only from the Trial Examiner, but also, most of the time, from whichever counsel was questioning him. Whether his unease stemmed from the fact that he was the only company official to be called on this point and placed under oath, from the nature of the testimony he was giving, or from some other cause, the Trial Examiner does not further speculate. His demeanor, however, lacked the convincing quality of forthrightness which custom looks for in an honest, even if mistaken , witness. The only other witness called by the Company on this matter was Erma Lou Calleban, who identified herself as secretary not only to President Williams, but also to Kimball, Lennberg, and Zachman She was present, as the investigators said, at their final meeting with Kimball and Griffith, and testified that she heard neither official tell the investi- gators that they were dismissed for failing to carry out instiuctions Although counsel for the Company stated, on the recoid, that he had the notes which Callehan made on September 4, he did not offer them in evidence, nor properly identify them. The mere existence of such notes peiinits no inference either as to their completeness or accuracy. It is a reasonable conclusion of fact, that neither her testimony nor Kimball's has any support in the record from stenographic notes she took on September 4 It is likewise reasonably inferable that, had those notes contained competent support, they would have been identified and offered by the Company. Other factors support the conclusion that the testimony in general of the investigators is trustworthy Counsel for the Company made no claim that Williams, Lennberg, Zachman, Pratt, or Griffith were unavailable as witnesses In fact lie stated for the record, before calling Kimball, that he did not "intend to dignity" the proceedings by "calling every representative of the Company who was named by these impostors" It may well be the opinion of counsel that the calling of rebuttal witnesses lacks dignity, and such opinion is respected. Failure to call such witnesses, however, leaving testimony uncontradicted, is the responsibility of counsel, not the Trial Examiner Finally, it is undisputed that shortly after the investi- gators left town, at least 3 of the 4 strike leaders named-Hipple, Bush, and Cook, were sent notices of their dismissal from the company payroll 13 N. L. R. B. v. Indiana & Michigan Electric Co., 318 U. S. 9, 18, 19. COMMUNICATIONS WORKERS OF AMERICA 695 court room through the entire proceedings, for one purpose only, for this hearing here today,. to be able to say that they heard it." Indeed, General Counsel took the position at that point, that even if strikers heard of misconduct "under duress," his theory would still.hold.13 Later during the hearing, General.Counsel extended his theory to a more remote area, as is shown in the following colloquy; which occurred after General Counsel had admitted that certain charges had been dismissed by the court upon motion without hearing: TRIAL EXAMINER: Well, let me ask this: What is your position as to the mere filing of this information, or charge? Mr. DooLEY: Well, the filing of it, and arraignment, the hearing which was dismissed on the motion for a reason other than its notoriety to the charge, those reasons being introduced TRIAL EXAMINER: Which may or may not have been completely false. Mr. DooLEY: Well, of course, that's true; if they may be still pending, they may not be false. TRIAL EXAMINER: Now, the only reason for bringing in any court action, as I understand it, is that you wish to establish that, inferentially, at least, and in such cases as you establish that strikers were present, that such strikers heard of the event from the testimony given by, in this case, Casteel, in open court. And that again, inferentially, having heard about it, they perhaps were deterred from leaving the strike and going back to work. Mr. DOOLEY: Well, this may not prove conclusively that people knew he filed the charge, but it is a form of attendant notoriety which, I think, it is relevant to show. TRIAL EXAMINER: It isn't the filing of charges, as I understand your position, that is the point of issue, it's the event itself, where employees heard about it since they weren't present, but heard about it by means of the court action? Mr. DOOLEY: Well, we also contend that the notoriety involved, such as it might be, even in the sole filing of criminal charges, is a form of attendant notoriety which it is relevant to show. A summary of contextual factors, then, which the Trial Examiner believes possess relevant bearing upon issues raised by General Counsel, include: (1) the long history of peaceful bargaining before assumption of control by General Telephone; (2) the adamant refusal of the Charging Party, when requested by the Governor of Ohio, to submit strike issues to arbitration; (3) the employment of "outsiders" to be pres- ent at job sites without working; (4) the hiring of professional investigators for the purpose, in part, of "removing" certain strike leaders; and (5) the efforts described above to insure that all strikers would hear of claimed incidents of violence by some strikers. The Trial Examiner now turns to the specific acts of alleged misconduct. C. Incidents of alleged misconduct 1. Following Matz to his home, July 18 The first incident, claimed by General Counsel to be "coercive," took place on July 18. It is so trivial as to deserve scant comment. District Manager Matz, accompanied by Construction Foreman Kerns, drove a company truck to his home about 5 o'clock that evening. After he got into his house, he observed a number of strikers, in cars, drive up and park near his home. Some of them got out, and gathered in a group in the driveway of the house next door. Finally Matz went out, approached William Hipple, one of the strike directors, and asked him what he wanted. According to Matz, Hipple made no reply. He then told Hipple, also according to his own testimony, that he "wished they would con- fine the strike to the Company buildings," and then went back into the house. Al- though Matz claimed there were 20 to 25 strikers there, as a witness he could name but 8. There was no violence or threat of violence. 13 Transcript TRIAL EXAMINER' So far as what General Counsel Is getting at, the hearing is the important thing, and even, if it was under duress that they heard it, his theory would still hold. Isn't that corrects Mr. DOOLEY ' Yes, sir. 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hipple readily admitted having followed Matz home , with 8 or 10 others, although he placed the occasion as a week later. He explained that they went out there because they had an agreement with Matz-and this is uncontradicted by the District Manager-that the supervisors would not take the trucks "home and keep them on the streets" where they might become damaged. This latter point was established by General Counsel, while cross-examining Hipple. The Trial Examiner discerns nothing in this incident to support the specific allega- tion of the complaint to the effect that Hipple and others followed "supervisory per- sonnel of the Employer in superior inimical numbers " and thereby "restrained and coerced" supervisors.14 2. Blocking company truck, July 19 The details of Matz' testimony regarding this incident are 'uncontradicted. That day he and Kerns were about to leave the Company's parking lot at one of the exchanges, in a company truck, when 4 or 5 strikers who had been picketing the exchange entrance, ran down and stood in front of the exit gate. "We kept inch- ing the truck forward and they kept walking right up against the bumper," said Matz. Supervisor Beasley, inside the parking lot fence, began taking pictures of the pickets. Picket Captain Russell Cook remarked to Beasley, according to Matz' undisputed (but delicately edited) testimony, "We'll take the camera and jam it" where cameras are not customarily encased. It does not appear that the threat was carried out. For Matz continued, "So he took several pictures, and then went inside, called the police, and the police came and made them let us out." While this incident, as described by Matz, seem to the Trial Examiner to be relatively mild, capably cared for by local police, and inconsistent with Matz' later testimony, previously noted, that he had no trouble getting into or out of the exchanges during the first 2 weeks of the strike, in the absence of any refuta- tion the Trial Examiner concludes that it happened, and reasonably is embraced within the allegation of the complaint to the effect that supervisors' "ingress and egress . . . to and from the Employer's premises" were "impeded" on this occasion by the pickets. 3. Lincoln and Robinson incident, July 24 As in the cases of the two previously described incidents, Matz was the only supervisor to testify regarding an occurrence in a public alley near Lincoln and Robinson Streets, in Portsmouth, on July 24. Matz and three other supervisors were repairing a cable at this location. It is undisputed that this was the first occasion when "outsiders" James Casteel and Harbld Stratton, from Bryan, Ohio, were brought in by the Company, and both employed-by the General Telephone, Casteel as district plant superintendent and Stratton as plant 'engineer. According to Matz' own testimony, he and the other supervisors worked peace- ably at their job all the morning, from 9 o'clock until after 12 o'clock, with-pickets 50 feet away, on the main street. So far as his testimony reveals, the supervisors were not interfered with, or even spoken to, for all this period. At about 12:15, he said, a "crowd" of shoe workers began to gather, some five carloads of them. This crowd, Matz continued, containing some pickets, came down the alley, kicked toolboxes, took pictures and threw the flashbulbs at the supervisors, and called them "scabs" and other names. One shoe worker, he said, told him, "we are going to hang you in your front yard tonight," and strikers Russell Cook and Raymond Martin added, respectively, "We'll do worse than that to that son-of-a-bitch," and "I'd love to catch him out by himself sometime." Even while on direct examination , Matz tempered his testimony measurably. Although he claimed there were 25 company pickets there, he could name but 10. When asked to identify who called him names, he hedged, and said, "Well, call -ing me directly, I couldn't say; and only Cok adresed his remarks to me. . When they spoke they would speak more or less to one another... . u Although the incident is not specifically alleged in the complaint, Matz testified that when he and Kerns left his home that evening , they were followed by the same strikers to a parking lot of one of the exchanges , and when they arrived were blocked by the same strikers and others from entering the lot for about 5 minutes. He gave no rea- sonable explanation as to how he could be both followed and preceded by the same strikers, nor did he provide details as to precisely who or in what manner he was "blocked." The Trial Examiner, from this confusing and general testimony , is unable to And exactly what did happen at the parking lot. COMMUNICATIONS WORKERS OF AMERICA 697 Their work, however, was not interrupted, for as Matz testified, they worked "continuously" from "9 o'clock in the morning until about 3:00 in the afternoon." Five of the 10 strikers said by Matz to have been at this location readily admitted the fact. According to the undisputed testimony of one of the strike directors, Virgil Pierce, when they came , to picket the job they found "out of town people" there for the first time since the strike began. He and another strike director, Jack Keyser, came down the alley to the telephone pole and asked one of the strangers, "Mr., do you know there is a strike going on out here?" Receiv- ing no answer, the two left the alley. He admitted that a considerable number of people, not strikers and there without any request on his part or that of the Union, gathered in the vicinity and went down the alley. Pierce's testimony, in general, is supported by that of Keyser, Picket Captain Russell Cook, and strikers Richard Kalb and Raymond Martin. All denied making any threats against the supervisors. Keyser admitted taking pictures of the strangers with a flash camera, and that when he "hit the trip release" the bulbs spun out on the ground, but said he released them with no intent to hit anyone. Russell Cook flatly denied making the implied threat accredited to him by Matz, as did Martin. The Trial Examiner does not credit Matz' unsupported testimony as to this inci- dent. His retractions and failure to be specific, while on direct examination, deprive it of substantial weight. Nor is the evidence sufficient to establish that the "crowd" of citizens who came there were present at the instigation of the strikers or the Union. There is no doubt, as found heretofore, that public sympathy in large part was with the strikers, but absent a more convincing circumstance than mere pres- ence on a public street, it cannot be reasonably held that the Union is responsible for conduct of all citizens of Portsmouth. On this occasion,;however, occurred an act of violence against a striker, and by a supervisor. According to. the credible testimony of Richard Kalb, when he proceeded down the alley with his picket sign, as the supervisors were leaving, Casteel ran into him with the company truck, causing injuries which hospital X-rays showed was a "compressed vertebra." Casteel himself admitted the occur- rence, and said that Kalb was "more or less just bumped down the road." In short, the Trial Examiner finds the credible evidence insufficient to warrant a finding in the language of the complaint: to the effect that on July 24, at this location, union agents engaged in "cursing , harassing, threatening, and interfering with the work of supervisory personnel of the Employer." On the contrary, however, it is found that the Charging Party, Ohio Consoli- dated, by the above-described conduct of District Plant Superintendent Casteel of General Telephone, engaged in the first act of violence after the beginning of the strike. 4. Trouble at Sciotoville exchange, July 29, 2 p. in. In addition to "outsiders" brought in for cable repair jobs at varying sites, soon after the strike began General Telephone sent into the Portsmouth area a number of supervisors to be at the telephone exchanges. According to the direct examination of Oscar Newman, equipment supervisor for Ohio Consolidated, he and Station Supervisor William Meyers, during the after- 1 noon of July 29 escorted Pat Bauer, a General Telephone supervisor, to the Scioto- ville exchange, which is in the Portsmouth area. Also according to Newman- who alone for management testified about the incident-as the 3 approached the exchange they were met by 2 picket captains, Russell Cook and Robert Johnson, who told them that although he and Meyers could go on in, Mrs. Bauer could not. Vice President Cole came up, and the picket captains told him the same-that Bauer could not go in. Newman further said that Cole called the police, that police arrived and talked with both the strikers and the officials of the company. He concluded, "they (the police) couldn't help us, so we had to leave." On cross- examination Newman admitted that Bauer was a chief operator for General and he did not "think" she was a supervisor for Ohio Consolidated, nor could he re- member whether or not this was her first trip into the Portsmouth area. He further admitted that the picket captains made no attempt to use force, and that he and other supervisors went in and out as they pleased. Nor is there any testimony to the effect that force was threatened by either the captains or the pickets. Although both Cook and Johnson were witnesses, neither was questioned by any counsel about this specific incident. On the basis of Newman's. testimony alone the Trial Examiner concludes and finds the evidence insufficient to support a finding within the terms of the complaint's allegation. There was clearly no physical prevention, nor threat of physical pre- vention, of supervisors from entering the exchange. `698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. More trouble at same exchange, 8 p:_m. General Telephone's traveling chief operator, Pat Bauer, was brought back 'to the same exchange that evening , this . time by Glen ,Evans; revenue: accountant su- pervisor for • the Ohio . Consolidated, and Zachman, previously identified as public relations director for both companies. As in the afternoon, they were joined. at, the exchange by Vice President Cole. Only Evans, for management, testified about the evening incident although, as the record shows, Cole was in the hearing room while Evans testified. In substance, Evans testified as follows:. He and Pat Bauer walked to the ex- change door, where "there were three pickets standing shoulder to shoulder at the stairway entrance leading up to the second floor of the exchange ... they would have had to have moved, or else we would have had to have physically. moved them." Cole talked to the pickets, and "they told us that we couldn't, get in; so `Miss Bauer and I stepped back. , . " Immediately thereafter, in his testimony, however, Evans said he did not hear, Cole's conversation with the pickets. Zachman left the group to cross the street, and later police arrived. Evans did not hear what the police said to the pickets, but after the lieutenant read to them from some,"docu- ment, we went up the stairs." In contradistinction to Evans' testimony, unsupported by, that of any other n n- agement witness, pickets Stalder, Shaw, and Hicks were questioned at length about ,the incident. Their account, in substance, is as follows: When. the pickets came on duty that night they were informed that a man then in the exchange had kicked a girl picket that morning or the day before. Finally Cole and others arrived. Cole approached Stalder and, according to the latter's undisputed , testimony, said "he wanted to take somebody in." Stalder replied, "Well, you can take in your own local persons, now, but we would rather not no strangers go in." Finally police came, read a letter which "said they would have to go in," and the company people then entered. In view of Evans' admission that he did not hear Cole's conversation with the pickets,. and of the fact that Cole, although plainly available in the bearing, room, did not testify, the Trial Examiner accepts the version of pickets Stalder, Shaw, and Hicks. There was no physical prevention of entry; it appears that Cole first raised the question of such entry, and upon receiving the reply that the. pickets preferred that no strangers be taken in? merely waited until police arrived and took care ,of the situation. There was no violence, nor threat of violence. The Trial Examiner concludes, that the credible evidence regarding this incident fails to support the relevant allegations of the complaint. 6. New Boston exchange, July 30 The next day, according to Evans and Newman, both previously identified as company supervisors, they went with Public Relations Director Zachman to the New Boston exchange , also in the Portsmouth area. As to occurrences upon their arrival, the Trial Examiner does not credit the testimony of Evans, except as it finds support in that of Newman. As the record clearly shows, Evans was verbose, inclined to - exaggeration and, as noted in the section immediately above, related conversations which he then said he did not hear. Newman, on the contrary, impressed the Trial Examiner as a witness making an honest effort to reconstruct a past event as he saw it, and not merely to please the company officials present at the hearing. Newman's account of the incident, in substance , is as follows : He was taking Evans and another supervisor, and supplies , to that exchange in the early evening of July 30. As they approached the exchange, they were met by pickets Holly Flowers and. Eugene Shepherd, about 10 feet from the entrance.. These two told him he "wasn't going to take no one in the New Boston Exchange ." Newman told them "these were our people--supervisors," but Flowers insisted that they were not going in. Newman then asked Flowers if he could go in himself, and take the supplies, but Flowers refused to let him in. There was no conversation, he said, with other pickets, and none of the strikers said anything else to the super- visors. When "we saw we couldn't gain admittance there," Newman concluded, "we left there and went to Sciotoville." Although Flowers was a witness for the Union, he was questioned neither about the incident nor his refusal to permit Newman and other supervisors entry into the exchange. On the basis of Newman's credible and uncontradicted testimony, there- fore,. the Trial Examiner concludes and finds that on the above-described occasion pickets "impeded" the company supervisors from entering company property. COMMUNICATIONS WORKERS OF AMERICA ;6.99 7. At Sciotoville, also July 30 Also according to Newman, upon being denied entry at New Boston he drove the same group of supervisors to Sciotoville. As they approached the exchange, .they met Strike Director Hipple and Picket Captains Johnson and Frank Farley in front of an adjoining bakery. According to Newman's uncontradicted testimony, Farley "wouldn't let me take the supplies in or any of the personnel." He quoted Farley as saying, "You can't get in. We just ain't going to let you in." Zachman then called the police, who arrived. "We told them the story," Newman said, "and the police told us they couldn't help us." "We left," he concluded. As in the preceding incident, the Trial Examiner credits Newman's testimony and not that of Evans', except as it finds support in Newman's account and as to the fact that he, himself, eventually went into the exchange. While there is no credible evidence of actual or threatened violence, it is con- cluded and found that Farley and other strike officials did impede the entry of company supervisors into the exchange on this occasion. 8. Maynard incident, about July 30 Arjayra Maynard, Vice President Cole's secretary, was a witness immediately following Glen Evans who, as the record shows, testified in Cole's presence. As in the case of Evans, Maynard's vagueness on specific points and apparent exaggera- tion on general matters raises a good deal of difficulty in basing upon her testis mony any specific findings. She could not recall names, dates, and a. number of important details. Although a private secretary, Maynard for the first 2 weeks of the strike was assigned to operating a switchboard at the Sciotoville exchange. So far as her testimony reveals, she had no difficulty in getting to work until the final day of her assignment-a date she could not fix. On this last morning, she said she got out of a cab in front of the exchange, and approached its entrance. As she approached, two female pickets, Toppins and Ross, stepped ahead of her to the steps. She knew them, she said, and in "a`friendly manner" asked, "Don't I get in today?"-or' "something to that effect." They replied, "No, we are not supposed to let anyone in." Thereupon Maynard turned away, went to a telephone and called Evans, who told her to go across the street to a restaurant and wait. She did so.. While in the restaurant, she said, three unidentified men also came into the restaurant, sat in a booth and talked, but "1 forget now exactly what they said." Eventually a police m an came, and she went into the exchange. Both Toppins and Ross denied physically preventing Maynard from going into the exchange. It is plain from Maynard's own testimony that she was 'not threatened, nor actually impeded. Ross' testimony is undisputed that Maynard said "she didn't really care, she would rather be home anyway." The Trial Examiner finds evidence insufficient to establish a conclusion that Maynard's entry to the exchange on this occasion was, by any misconduct on the part of the two pickets, impeded or prevented. 9. Tomato incident, August 3 District Manager Matz and an installation supervisor, Sutherland, were present at this incident. Only Matz testified about it. A summary of facts, based upon credible testimony, is as follows: On the morning of August 3, Matz and Sutherland arrived in a truck at a parking lot gate of a Portsmouth exchange. Matz found the gate bolted, the bolt bent. so the nut could not easily be removed. (No claim is made, by Matz or General Counsel, that the Union caused the placing or bending of the bolt.) At the time there were a number of union pickets across the street. There is no evidence that they even spoke to Matz when he left the vehicle or inspected the lock. He returned to the truck, and obtained a 3-foot long metal boitcutter. As he left the truck he turned toward the strikers, called out the name of one of them, Thornton Gregory, and made a. motion as if to throw the boltcutter at him. Gregory promptly threw a tomato. at him, and others did the same.15 15 The Trial Examiner 'does not believe Matz' denial that he made the threatening motion with the boltcutter. It is clear, even from his own testimony, that there was no demonstration, even vocal, against him when he arrived, inspected the gate, returned tp the truck, and that no fruit was thrown his way until after he turned and, as he said, "faced them," with the boltcutter. Also bearing upon Matz' credibility is the fact, 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Credible evidence establishes that tomato throwing, whether or not justifiable morally or by local ordinance, followed and was precipitated by Matz' threaten- ing motion. They were not thrown at him while he was attempting entry. The -Trial Examiner finds the evidence insufficient to support the specific allega- tion of the complaint, to the effect that "supervisory personnel". were prevented from entering "by cursing, threatening, assaulting, striking and throwing missiles at them." 10. Blaine Matthews' farm, August 13 So far as the record reveals no untoward incident occurred after August 3, when Matz was showered with tomatoes, until August 13, when two more "out- siders" came into the area, George Ghearing and Robert Foster, both being con- struction supervisors for General Telephone at Jackson, Ohio. On the morning of August 13 Matz, together with the two from Jackson, went to the above-named farm outside the city of Portsmouth to repair a cable, which Matz said had been damaged by an automobile accident. There appears to be no explanation in the record as to why management saw fit to send 5 men to splice a cable, a job which according to uncontradicted testimony of experienced em- ployees ordinarily required by 2 or 3 at the most. In any event, after the supervisors arrived a number of pickets appeared at the scene, a customary procedure during the strike, which General Counsel does not claim to be coercive. Only Matz and Ghearing testified about occurrences that morning. The sub- stance of the credible portions of their testimony is to the effect that Ghearing and Foster were called uncomplimentary names, told they "had better" get out of town, and "if you have any concern for your family, you will be leaving here." Al- though both Ghearing and Matz claimed that their work was "impeded" by strikers, when questioned more carefully about this point their specific testimony makes it clear that their being "impeded" consisted only in having to step around some striker in going from place to place at the edge of the public highway. There is no evidence to support a finding that the supervisors were physically prevented, by bodily contact or otherwise, from performing their work. The Trial Examiner does not credit the denials of the strikers that Ghearing and Foster were called names, and warned that they had better leave town. Surround- ing facts establish without doubt that the strikers resented the importation of "out- siders" and, having observed all of such strikers as articulate witnesses, the Trial Examiner has no doubt that they voiced their resentment in linemen's terms. In summary, then, the Trial Examiner concludes and finds that on August 13, at this location, union pickets and other strikers threatened supervisors Ghearing and Foster, supervisors of the General Telephone.ls 11. Afternoon at Elks' Country Club, August 13 That same afternoon the same five supervisors went to repair a cable at a place identified as the Elks' Country Club, and pickets again came to the scene. (The Trial Examiner does not credit Matz' testimony that there were pickets already there when the supervisors arrived. Ghearing said there were none, and there is no explanation as to how pickets could know, in advance, where supervisors were going in the entire countryside, except by following them.) Giving full face value to the testimony of Matz and Ghearing, there appears to have been neither violence nor threats of violence at this location. Both said that during the afternoon some rocks fell near them, but neither saw who threw them. Matz' implication that the rocks must have been thrown by the strikers because no established by General Counsel, that Matz, on the same day of the above occurrence, filed in municipal court charges against Gregory and another striker, claiming that they conducted themselves "in a nosy, rude, insulting, threatening, and disorderly manner" toward him and used "profane and obscene language" toward him. At the time the hearing closed, there had as yet been no hearing on those charges. Before the Trial Examiner, however, Matz testified as to no word, obscene or otherwise, used toward him by any striker. So far as his testimony reveals, he, himself, was the only one who spoke at all during the event, when he said, "You fellows had better behave yourselves." 161n the opinion of the Trial Examiner, however, the credible evidence is insufficient to find that their own supervisors, of the Ohio Consolidated, were likewise threatened or called names, that the work was impeded, or that after leaving the site, the supervisors were threatened with a slingshot. COMMUNICATIONS WORKERS OF AMERICA 701 one else was "in the vicinity" is refuted by Ghearing, who said that "there was a flagman for a road construction job there," at the time he arrived. On the contrary, undisputed testimony of Thornton Gregory, one of the several pickets who readily admitted that they were there, is quoted, in part: Bob Kern was on the pole. (Kern is an Ohio Consolidated supervisor.) Me and Bob had been friends, bowled together, so he was acting a fool with another one, and I told Bob, "Turn around. I would like to see how you look with a pair of workmen's clothes on." He laughed and turned around on the pole. That was all that was said. The credible evidence does not support the allegation of the complaint to the effect that on this occasion supervisors were menaced or interfered with. A com- paratively pleasant, country club afternoon seems to have been spent by all concerned. 12. Turkey Shop incident, evening of August 13 Many scores of the 3,365 transcript pages are devoted to this Turkey Shop in- cident which, quite literally, may be summed up as an upsetting climax to the first day's appearance of outsiders Ghearing and Foster in the Portsmouth area. Some: 75 nonstriking citizens of that city gathered near and overturned their station wagon as the 2 prepared to enter it after dining at the Turkey Shop, while 20 or 25 strikers, including strike directors and picket captains, according to their own testimony stood around in the near vicinity, valiantly maintaining the role of innocent and only casually interested bystanders. Briefly described, what happened is this, according to the credible parts of testi- mony of all corncerned: About 7 o'clock that evening a union meeting was being held at a place some distance from the Turkey Shop. Hipple was conducting the meeting. Someone called to him through an open window "there's some strike breakers out at the Turkey Shop." Hipple informed the union members present and many of them proceeded in their cars to that eating place. Hipple and 3 or 4 others went in, and found local supervisors and Ghearing and Foster eating in a side room. Indicating the latter two, Hipple asked Matz if they were leaving town that night. Matz referred him to the "office" for an answer. Hipple told Matz that there was "quite a group outside who would like to know," and then left, with his companions. After finishing their meal, Ghearing and Foster went to their station wagon, parked in the rear of the restaurant. A number of the strikers were in the vicinity when a much larger group of unidentified Portsmouth people rushed the car, rocked it, and overturned it. The strikers then hurried to their cars and left the scene.11 Without unnecessary discussion, it appears clear to the Trial Examiner, and he concludes and finds, that the union leaders were responsible for the overturning of the car, whether they actually participated in the overturning or not. It was in demonstration of the threat uttered earlier the same day, to the effect that these two "outsiders" had better get out of town. 13. Morning incident, Lincoln-Offner alley, August 22 After about 10 days of apparent quiet on the strike front after the Turkey Shop episode there was some disturbance in another Portsmouth alley on August 22. For some reason unexplained in the record, this time the Company had sent some 8 or 10 "supervisors" to repair a single cable, all being imported from outside the area. It is undisputed that none of these "outsiders" wore the "blue tags which the Common Pleas Court assigned to the company personnel." 18 The only management witness to testify about this incident was Donald M. Seward, who identified himself as construction supervisor for the General Telephone, in Alexandria, Ohio. Seward, as a witness, plainly had difficulty in identifying a number of these strangers, whom he called "supervisors," but said that at least 3 of them came from Pennsylvania, and admitted, as to 1, that he had no idea how he happened to be there. These facts, in the opinion of the Trial Examiner, acquire added significance in the light of the uncontradicted testimony of investigators, also from Pennsylvania and hired by Ohio Consolidated, that about a week later 17 The Trial Examiner does not credit Matz' testimony that, from a distance, h e saw one striker actually rock the car. Ghearing was beside his car, and his testimony does not support Matz on this point. On the contrary, Ghearing said "I couldn't say who actually had their hands on it." 19 The quotations are from counsel's question of Norman Bush, union steward and picket captain, who answered in the affirmative. 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD two of them, because of their size, were urged by Zachman to take jobs posing as linemen. Seward is not a small man, at 31 he weighs 220. The findings, which follow, as to events in the alley that morning, are based upon the credible testimony of several pickets who were there, much of which is undisputed. After these strangers arrived, a few pickets came down the alley. Only two ,of the "outsiders" were working, others were standing around nearby, on either -side of the alley. The pickets called up to the men on the pole and asked if they .knew there was a strike on, and said that they were taking their jobs. One of the strangers told the pickets, "Get out of this alley," another told them they had no business there and gave them 5 minutes to get out. One of the strangers from Pennsylvania drew back as if to hit Picket Captain Bush, but was restrained by others. Upon this Bush told them that the strikers had as much business in the alley as they did, and if they felt that way about it, "for them to get out." . The 8 or 10 pickets advanced toward the strangers, who climbed into their trucks and left. The Trial Examiner concludes and finds that, while the pickets may well have caused the strangers to leave the alley that morning, the incident was precipitated by the supervisors themselves. The allegations of the complaint regarding this incident are not supported by the preponderance of credible evidence. 14. Afternoon incident, same day, same alley Apparently as a result of the morning flurry, both sides returned in increased numbers to the same alley after lunch. This time the men from outside the area were accompanied by local supervisors, including Matz, General Manager Purpura, Plant Superintendent Pratt, Engineer Ritter, and Kern and Conley, he latter two previously identified as Ohio Consolidated supervisors. As in the morning, only two of the large number of supervisors did any work. Three of them testified about the incident-Matz, Ritter, and Seward. Some 17 pickets and strikers readily admitted that they were present and testified about it. Even if the testimony of the three supervisors is given face value, nothing is shown to have happened that afternoon of a violent or serious nature. Some names were called, dnd so were police. The single threat of violence admittedly was made by Bush, but only after Plant Superintendent Pratt insisted, over the striker's objection, upon taking his picture. Bush did not carry out the threat, and Pratt did take the picture. The one item which Matz and Ritter stressed was their claim that Hipple showed up that afternoon with a pistol-a real one they said, which Ritter and Seward identified with assurance as a brown-handled revolver. That none of the super- visors were concerned, however, about Hipple's "revolver" was admitted by Seward, and Ritter said that no one called the attention of police to it when they arrived. The plain fact is that Hipple had no "revolver" or any other genuine "gun" with him that afternoon. It was a plastic toy pistol, which his small son had left in the car and which another striker by impulse handed to him as they got out of the car at the alley. Both Matz and Seward testified that as Hipple came down the alley he referred to Lennberg-previously identified as a company official. Matz quoted Hipple as saying, "By God, Lennberg hides his gun, but I am going to put mine out where everybody can see it." Additionally revealing circumstances are established by the undisputed testimony of Hipple. The latter said that a few minutes before coming to this alley he, with others, had seen Lennberg getting out of his car near the Turkey Shop. Upon recognizing them, Lennberg reached into the glove compartment of car, withdrew a "gun" and thrust it into his pants pocket. Hipple chided him about it, and within a few minutes appeared in the alley, clicking his toy pistol, and calling out the remark quoted above from Matz' testimony. It is also undisputed that Hipple had this toy in plain view when talking with the police, but was not questioned about it. The Trial Examiner concludes and finds that the preponderance of credible evi- dence fails to sustain the allegations of the complaint as to this incident. It is further, and specifically, found that there was no "exhibiting" of a "firearm" by any striker that afternoon. 15. Home Supply lot, later same afternoon Later the same afternoon, 8 or 10 local and outside supervisors went to West Portsmouth for a repair job. After they arrived about the same number of pickets appeared. Before the pickets came on the scene, the supervisors who performed the repair had gone about 100 feet off the road, where they had parked their truck, COMMUNICATIONS WORKERS OF AMERICA 703 and into what Ritter described as "a little gulley there," in "rather dense growth."- He admitted that the men working there could not be seen by the strikers when they arrived. The group of roving pickets, observing the company truck beside the road, pro- ceeded about 50 feet to the nearby parking lot of the Home Supply Company. Hipple testified credibly-particularly in view of Ritter's above-quoted testimony- that the pickets could see no one working, so they got out in the parking lot and just "ginned around there, trying to figure out what they was doing." The only supervisor with whom the pickets talked briefly was Ritter, who urged them to give up the strike while striker Bloomfield accusing him of taking their jobs. The strikers then moved off into the parking lot and batted stones and pebbles off into the field. Although it appears that some of the stones fell in the vicinity of the men working, there is no claim that anyone was hit or that any protest was voiced by the unseen supervisors. When the job was finished the supervisors got into their truck. At this point there is some confused testimony as to who made threatening gestures to whom. Seward said Hipple and Bush threatened Ralph Wemple, a General Telephone supervisor from New Philadelphia, by raising pick handles, but Wemple himself, a witness, said nothing about it. And when Wemple in the back of the truck made a threatening move to throw some tool at the strikers, they tossed gravel at him. It is clear from the credible testimony that there was no physical violence, and no specific threat of such violence, on this occasion by either the strikers or by the supervisors. The work of the supervisors was completed without interruption. The calling of mere uncomplimentary names the Trial Examiner believes to fall far short of coercion. The allegations of the complaint as to this incident are not sustained by the preponderance of evidence. 16. Seventh Street parking lot, August 23 This is another tomato incident. According to Matz, the only supervisor to testify about it-although he said several others were there-he and these others were looking at a truck in the Seventh Street parking lot early the morning of August 23. While he stood there, he said, a tomato "hit the hood of the truck, and it splashed into my eyes." That is all there was to the event, according to Matz-"I seen it hit and splash." Out on the public street, he further said, 100 feet or more away, there were a few pickets. Matz assumed that the tomato was thrown,: according to the following colloquy: TRIAL EXAMINER: And you are assuming that it was thrown, that there were no tomato plants in the near vicinity from which it could have dropped, is that it? The WrrNESS: That is correct. He did not see it thrown, and admitted that it was a public street where he saw pickets and "there might have been" other citizens on the street besides pickets. "Ordinarily," he said, "there would be other individuals passing in that street." When the Trial Examiner asked Counsel Dooley if, upon this paucity of evidence, he wished him to "infer, then, that it was the pickets and not some other indi- viduals," Dooley replied "Well, there are additional witnesses to this incident." There may have been other witnesses. If so, General Counsel failed to call them. When pressed by the Trial Examiner; "Do you wish me to infer from this witness' (Matz') testimony that it must have been a picket?" Dooley replied, "Yes, sir." When asked why, and on what grounds, Dooley further replied: Well, the only thing that appears here so far that places anybody out of the street is the assumption that, since it is a public street therefore there must have been somebody else going by. I don't know that that's a valid assumption, The Trial Examiner considers it unnecessary to assume anything. Since there is not the slightest identification of anyone, by the one witness to testify about it on the part of management, the conclusion is made that the evidence is insufficientto sustain the complaint's allegation, which is specific, that on this occasion Union Agents Hipple, Bush, Cook, Born, and Birchfield threw tomatoes "at supervisory personnel." 17. Incident in Reverend Butterbaugh's yard, West Portsmouth, August 23 , Seward was the only management witness testifying about this incident, although he said "there were several supervisors with me." It appears that they had gone 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to this locality to right an overturned mobile telephone truck. Eventually several pickets showed up. The only item of the slightest significance, related by Seward, was his overhearing striker Russell Cook make a remark to someone, he did not know who, that he was going to get "blood and hair" on his pick handle. He admitted that only Cook had a pick handle, and that when he overheard the remark he was "fifty feet" distant. Cook readily admitted having made this remark, while "playing the fool," to Hippie. There were no actual threats made to any supervisor, on this occasion, no violence, and no interference with their work. The Trial Examiner concludes and finds the evidence insufficient to sustain the relevant allegation of the complaint. 18. Star Yard, August 24, morning Early the morning of August 24 some 10 or a dozen local and "outside" super- visors proceeded to an open area in the countryside between New Boston and Sciotoville for the purpose, Matz said, of- repairing an "aerial cable," a job which Matz himself said was performed by just one man. All of these supervisors went out together, also according to Matz, between 7:30 and 8 in the morning. Here they remained-most of them obviously with nothing to do-for 3 hours or more, no strikers being present. By 11 o'clock, said Matz, "quite a crowd" of pickets showed up and made "insult- ing remarks" and called "vile names." Then also according to Matz, he saw strikers follow Strike Director Hippie to a flood wall near a railroad, some 75 feet distant. The strikers went behind the flood wall, he said, he heard Hippie call "All right, men, let them have it," whereupon "literally hundreds of rocks came over the wall and landed" near the supervisors. The Trial Examiner does not believe Matz' testimony insofar as it quotes state- ments accredited to Hippie. Not only did the district manager contradict himself on this point-having early in his testimony admitted "I couldn't hear what he (Hippie) said," but when this contradiction was called to his attention he became evasive, he claimed that Hippie was in "several places." Furthermore Seward, the other supervisor to describe the incident, admitted that he could hear nothing of the "conversations." Seward's testimony also. contains its own contradictions, for although he said that Hippie was not using a "very loud tone of voice ," 75 feet away, he nevertheless heard him say "Too far to the left," or "too far to the right," while the stones were flying. Of significance, also, in determining the credibility of the two supervisors is the admitted fact, by Seward, that no charges of assault and battery were filed by the supervisors on this occasion. As the record demonstrates, such charges had been, and continued to be, filed as to incidents far more trivial than Matz' claim that "literally hundreds of rocks" were thrown at them by the strikers. Rocks were thrown that morning, there can be no doubt as to that. The credible testimony of several strikers establishes that point. Their version is, however, that the rocks came from a gang of kids, who apparently had been fishing on the other side of the flood wall. The strikers chased the kids away, according to their story, when stones fell near their own cars. No supervisor testified as to the identity of anyone seen throwing a stone. In the absence of credible evidence clearly showing that the strikers threw stones, or caused them to be thrown , the Trial Examiner concludes and finds the evidence too insufficient to sustain the allegations of the complaint as to this incident.la 19. Same yard, same day, afternoon As to the afternoon incident at the same location the record contains a great deal of testimony. If consideration were to be given only to the testimony of General Counsel's witnesses, a reviewer would find it most difficult to reconstruct the events, so confused and contradictory are the versions. For example: Matz testified that 39 The same paragraph of the complaint claims as an unfair labor practice the following of supervisors back to town that noon. Matz said that the pickets, following in their cars, blew their horns all the way back. In reply to a question from the Trial Examiner, Counsel Dooley said, "Yes, sir, I would like to have a cease and desist order against that." The Trial Examiner considers the incident so trivial as to need no further com- ment. An interesting future for the Board is foreseen, if it is to police the decibels of the nation's highway traffic. COMMUNICATIONS WORKERS OF AMERICA 705 when the supervisors returned to the Star Yard about 3 o'clock that afternoon at least a dozen strikers were already there, and more arrived later; Casteel said that when the supervisors arrived there were no strikers and none arrived for nearly an hour; Wemple said there were "hardly any pickets at all there in the afternoon .. . they were in court that afternoon." It is fairly clear, from their testimony , that the supervisors were given instructions by top management that same afternoon, before going to the Star Yard, as to inci- dents which might happen. General Manager Purpura spoke to them, as did Counsel Griffith. But as to precisely what these instructions were, the confused and contradictory testimony of the supervisors is again difficult to unravel. Matz said that there was no discussion of the taking of pictures at that meeting by Purpura, yet shortly thereafter he admitted that cameras were taken out to the Star Yard that atternoon "at the instructions of Mr. Purpura." Engineer Ritter, at first testifying that at the meeting with management there was no "discussion of picture- taking to be done that afternoon"-"none whatsoever," a few questions later admitted "the only instructions we had was to take cameras if any of these things occurred, incidents occurred, try to get a picture of them, if we possibly could." At least two of the supervisors , Seward and Wemple, admitted taking pictures at this location-although Wemple insisted that the picture he took, which was repro- duced not only in the local newspaper but also in "Business Week," was taken in the morning and not in the afternoon Reconstruction of the events that afternoon, the Trial Examiner confesses, is not easy, from the inconsistent accounts given by the supervisors. From the credible portions of testimony of both supervisors and the many pickets who were questioned on the matter, it appears that this is what happened. For sometime all was peaceful at the Star Yard, the supervisors gathered around the pole where 1 or 2 men were working, the strikers scattered in groups along the flood wall, some distance away. Finally Matz and Wemple approached the strikers, the latter with his camera . He started to take a picture of Hipple , and the strike director told him not to. Wemple declared, "You little son of a bitch , you're not man enough to stop me," and took the picture2e At this point Hipple and others started for the two supervisors, who beat a hasty retreat. That there was no "chas- ing or running after supervisors " until after the taking of the picture by Wemple is admitted by Ritter, a supervisor and a witness for General Counsel. At this point Casteel, previously identified as a General Telephone supervisor, rushed up, called out "You sons of bitches , I'll get you all," and drew a chrome pistol from his belt or pocket. Upon sight of the pistol, and according to the undisputed testimony of Hipple and others, the strikers promptly "put on the brakes," and rocks began flying back and forth , while some of the pickets went for pick handles.21 It is clear that from this point on a number of rocks were thrown by both pickets and supervisors. There is no evidence, however, that the strikers used the pick handles to assault any supervisor. The Trial Examiner concludes and finds, upon the basis of the credible testimony in the record, that the occurrences at the Star Yard were precipitated by conduct of the supervisors . Absent the approach of Matz and Wemple toward the strikers, and Wemple's uncomplimentary remark to Hipple, which sparked the incident, there is no reason to believe that the supervisors would have been attacked by rock throwing.22 The complaint alleges, also, that the strikers harassed and interfered with the supervisors during their return trip to Portsmouth that afternoon . On the con- trary, the credible testimony of both the strikers and some of General Counsel's witnesses establish the fact that for most of that 4-mile trip it was Vice President Cole who did the "harassing and interfering." It is undisputed that in his car he repeatedly blocked the highway, driving out into the lane whenever the strikers attempted to pass the company trucks. 20 Wemple did not deny having made the statement attributed to him by Hippie, but merely said he had "no conversation" with him 21 Casteel did not deny having the pistol, said in effect that he would not deny having made the threat attributed to him by Hippie, and admitted that it was after his rush toward them that the strikers returned with pick handles. 22 Tn appraising the testimony regarding this incident, the Trial Examiner cannot ignore the undisputed fact that even before August 24 the Ohio Consolidated had made its move to bring in "investigators" who. when they arrived, were urged to participate in and precipitate violence against the strikers 483142- -59-vol. 120--46 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is also alleged, and there is some evidence to show, that when the company trucks reached their parking lot, entry through a gate was blocked for a few minutes by a stalled jeep belonging to one of the strikers . Entry was temporarily halted, but credible evidence is insufficient to show that the traffic interference was inten- tional. The jeep had reached a point in the street in front of the parking lot ahead of the trucks with a flat tire and its radiator boiling. When other strikers arrived they promptly hoisted it out of the way. 20. Route 52, near Friendship, August 29 The complaint alleges that on this date three named telephone girls, strikers, stoned supervisors in vehicles they were dnving along this route and continued stoning the vehicles and supervisors when they arrived back at the city headquarters. The only witness, however, to testify for General Counsel on this alleged incident was General Plant Engineer Ritter. Unsupported, his testimony is of small weight. According to him, he and a number of "outsiders"-some of whose names he could not recall, but one from as far away as Muskegon, Michigan, were outside the city, near Friendship, Ohio, relocating a pole. No one interfered with their work, he said, although they noticed "pickets . parked in two cars up the road." When the supervisors started back to town, however, he said "all of a sudden they come blasting by us with their horns and blocked us, threw rocks at the truck and-I don't know who all was in there, but I did recognize three girls that had been along quite a bit, Juanita Conley, Janet Ward, and Ruth Beadle. One of them also had a gun, but they stuck it out the window and pointed it back at us." He identified Conley as pointing the gun, and then said "they followed us all the way back to Portsmouth." Just how Conley or anyone else could have pointed a "gun" back at Ritter's car, while following it, is a mystery the Trial Examiner will not attempt to solve. Other inconsistencies in his unsupported testimony add to its discredit . Although, as noted above, he said that whoever was in the two cars began throwing rocks at the company truck as it started to leave the job site at Friendship , "which was approxi- mately, oh, seven or eight miles , maybe, from Portsmouth," and "that sort of thing happened all the way into Portsmouth," he thereafter said "they didn't rock us until we got down about the airport," which he said was "about maybe three miles, something like that," from Portsmouth. Each of the three girls flatly denied being at this location on the occasion cited by Ritter. The Trial Examiner believes them , and not the inconsistent and unsup- ported testimony of Ritter . Each of the three girls testified straightforwardly about incidents in which they were later involved , as noted below. In short, the Trial Examiner concludes and finds that the credible evidence fails to support the allegation of the complaint concerning this incident.23 21. Kendall Avenue, August 31 Late in the hearing General Counsel amended his complaint to allege that on August 31 "Russell Cook, Russell Lewis , Janet Ward, Juanita Conley, and others" assaulted supervisors , on Kendall Avenue , Portsmouth . Having reviewed the evi- dence General Counsel offered to support the allegation , it appears to the Trial Examiner that the amendment might well have been delayed somewhat longer. Only two witnesses for General Counsel testified about any incident that night. Neither of these two identified any one of the above -named individuals as engag- ing in any assault'and battery. Tn substance , Supervisor Seward said that he, together with Cole's secretary, Callehan, and Patricia Wilson from General Telephone , were returning to the motel which housed visiting supervisors when he saw some women on the street, whom he could not identify, striking at five women inside a taxi , drawn up at a curb. He could identify two of the women inside the car, but said all were "supervisors." Seward and the two girls with him went on to the motel, and sent for the police. Meanwhile he and Casteel started back to the scene . Arriving also, at the same time, according to Seward , were the police and a rock. As to the rock, said Seward, "I didn't see who threw it, or anything." Callehan admitted that she could identify none of the women outside the taxicab. 2' Nor is there sufficient credible evidence in the record to eupport a finding that any of the three girls named by Ritter , or any other stoker, threw a rock through a window at the exchange upon his return from Friendship . Ritter admitted that he could not -identify who "threw the brick " COMMUNICATIONS WORKERS OF AMERICA 707 None of the five supervisors alleged to have been "assaulted and battered" were called as witnesses. And Pat Wilson, although a witness, was not questioned about the event. The Trial Examiner finds insufficient evidence in the record to support the allega- tions of the complaint as to this incident. 22. Heath incident, Sciotoville, September 6 The only witness to testify about this alleged incident was Eva Heath, a chief operator for Ohio Consolidated. Even if her testimony about it were to be accepted at its face value, the Trial Examiner would be unable to find either the Local or the CWA accountable for it. For it is clear that whatever altercation may have occurred, no pickets were involved, nor were any pickets present at the time, and it took place on a public street. According to Heath, she arrived at Sciotoville early the morning of September 6, together with another supervisor who was from out-of-State. She said that as she got out of the cab she was physically attacked by strikers, whom she had seen get out of a car nearby, and whom she identified as Juanita Conley, Janet Ward, Ruth Beadle, and Pansy Smith-all girls with whom she had worked for years with no trouble. She said Conley broke her glasses, and Ward beat her on the back. She got back into the cab. she further testified, and drove away. From Heath's story there appears to be no explanation for the alleged attack. The outside supervisor with whom she arrived in Sciotoville, she said, had been riding with her to this exchange for the preceding 2 weeks, and continued to do the same for the next 3 weeks-without any similar incident, so far as the record shows. Conley and Ward flatly and credibly denied being at Sciotoville that early in the morning. Beadle and Smith readily admitted that they were there, and their account of the incident reasonably accounts for the fact that Heath had no difficulty, either before or after September 6, in getting into the exchange. Their story, in substance, is as follows. Smith had stayed overnight with Beadle, and was being driven home in Beadle's car along a route that led by the exchange in Sciotoville. As they ap- proached this point they saw a cab drive up. Although not picketing, out of curiosity the two stopped and went over to see who was getting out of the cab. They asked Heath not to go in with the "outsider," whereupon the latter demanded of Beadle, "Do you think a little bitch like you could keep me from going to work?" Beadle reached in and slapped the girl's face. From this point on the Trial Examiner has no doubt that more slapping and hair-pulling occurred, between all four girls, and that Heath and the other supervisor left in the cab. That this "outside" supervisor made the quoted remark to Beadle is undisputed. Only Heath, for management, testified about the incident. Heath's credibility is further cast in doubt by the fact developed on cross-examination, that in an affidavit in municipal court she charged Conley with destroying her green sweater that morn- ing-a charge which, as a witness at this hearing, she admitted was untrue. The Trial Examiner concludes and finds that credible evidence fails to support the allegations of the complaint as to this incident. 23. Ett Mar Motel, September 17 Only one witness-General Telephone's Construction Supervisor Seward-testified for General Counsel as to this alleged incident, although Seward named many other supervisors and a motel man who were present. The account given by Seward, un- supported by more credible witnesses, borders on the fantastic. According to him, he and another supervisor, Foster, at about 10 o'clock at night were taking three female supervisors to the Ett Mar Motel where, it seems, most of the out-of-town super- visors and management officials of General Telephone stayed while in Portsmouth, as well as the investigators hired by the Ohio Consolidated. As he and the others drew up in front of the motel office, he said, he saw two cars stop on the road about 100 feet away-where, as he admitted, the lighting was "not very clear"-and saw 4 girls get out of I car and 1 man from the other. He said that he watched them carry "boxes of stuff" over to the motel and "before the girls could get out" of his car, those approaching began "throwing tomatoes." He identified two of the strikers as Janet Ward and Pansy Smith, and the man as a Ray or Frank Born. Although the additional names of Juanita Conley and Ruth Beadle were suggested to Seward by General Counsel, he said he could not recall "offhand" whether these two were present. He declared that while he and the other supervisors sat in the car-"our people," he said, "never got out of the car" the strikers threw "tomatoes and old socks full of mud" at his car. Finally, he said, Foster got out to go into the office 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and was hit by a tomato. He drove the girls around back of the motel. He con- cluded by stating that the strikers "finally decided to leave," and "left the boxes of stuff that they hadn't thrown yet on the lawn at the Ett-Mar." The strikers claimed by Seward to have been present on this occasion flatly denied being there. The spectacle as depicted by Seward is unbelievable. He had stopped at the motel office, he said , when he saw the two cars stop on a main thoroughfare 100 feet away. Yet he claimed that "before the girls could get out of" his car, these five strikers disembarked from their cars , removed boxes, hauled them to the motel, and started throwing tomatoes. The Trial Examiner concludes and finds that credible evidence is insufficient to support the allegation of the complaint as to this incident. 24. Woodland Avenue, Sciotoville, September 18 It appears, from the , credible portions of testimony of all concerned, that more actual violence occurred on this occasion than at any other time or place during the entire strike. Only 2 management witnesses testified about it-Seward and Casteel , both previ- ously identified , while nearly 20 strikers gave their versions of the events. The Trial Examiner believes this report would be needlessly lengthened by review- ing in detail the testimony of each of some 20 witnesses, and then resolving all incon- sistencies and contradictions . The most reasonable reconstruction of happenings will, therefore, be made from the credible testimony , taking into consideration not only the fact that both Casteel and Seward have been previously found to be unre- liable witnesses , but also the fact that the alleged violence occurred only about 2 weeks after the Ohio Consolidated had unsuccessfully tried to persuade hired "in- vestigators" to do violence to certain named strikers. All of the "supervisors" involved at the Woodland Avenue incident were from outside the Portsmouth area-some 10 or a dozen of them . And Casteel had been active at the Star Yard incident, not long before this, where he had threatened the strikers with a pistol. And as in previous cases, only two of the "outsiders" were actually working, when the pickets arrived, the others merely standing around. The credible , undisputed , and supported testimony of Hipple is to the effect that no trouble developed at this location until he was roughly shoved back into the group of strikers by Supervisor Erhman . According to Hipple, he and others were walk- ing along the public street when he noticed the company truck , with its door open, parked by the curb. Someone had told him a gun was carried in the glove com- partment, and he stopped, "popped the button" of the glove compartment to see if a gun were there. Erhman ran up, and shoved Hipple back "into about five pickets." Hipple said, candidly, "I realized I was in the wrong, but I had done nothing, but when he shoved me . . . into about five pickets . . . spontaneously I was kicked off right then. Everything happened." A free-for-all followed. Supervisor Seward swung a headset at striker Bush, who tore it away from him . Casteel came running at the strikers with a hammer in each hand. Strikers took the hammers away, bundled him into a truck, and when he kept kicking the door open struck him on the legs . It appears that the net result of the affray was that the strikers, outnumbering the supervisors , forced them into their trucks, and they drove away. It also appears that strikers and supervisors both filed charges against each other in the local courts, but the record does not reveal any punitive disposition up to the time of the hearing's close. The record does disclose that Casteel 's charge against Hipple was dismissed because the supervisor did not show up to prosecute, and that charges were still outstanding against Casteel. There is no doubt in the Trial Examiner's mind but that the pickets did engage in violence that morning in Sciotoville . And so did the supervisors . Two important factors are: (1 ) the physical action was precipitated by a supervisor ; (2) there is no evidence that the strikers' action was taken for the purpose of interfering with the two men actually working, although that was, of course, one of the results. Under all the circumstances , including the established company policy of instigat- ing violence against the pickets, the Trial Examiner concludes and finds the evidence insufficient to sustain the allegations of the complaint as to this incident. 25. Linden Avenue, Portsmouth, same day The only supervisor to testify about this incident was Wemple who (as found heretofore, precipitated the trouble at the Star Yard, and whose memory was so faulty as to contradict all other supervisors as to when that incident occurred. COMMUNICATIONS WORKERS OF AMERICA 709 When the supervisors left Sciotoville, they returned to Portsmouth, and according to Casteel's testimony stopped by at Linden Avenue, where another group of super- visors were gathered , under Wemple's supervision. Wemple, according to his testimony, promptly ordered his crew into their trucks. Meanwhile a number of the pickets who had followed Casteel and his group into town arrived at the Linden location, parked their cars, and some of them approached the company trucks. As Bush came by one of the trucks he stopped to speak to one of the strangers- this one, he said, apparently from Texas because of his cowboy hat. Wemple, about to enter the truck, ordered Bush out of the way, and when Bush did not move at once, hit him with a 10-12 pound sound box. Upon this, Bush and 2 other strikers- with some difficulty since Wemple is over 6 feet tall and weighs in the neighborhood of 250 pounds-shoved the supervisor into the truck. Here again, as at the Woodland Avenue incident, it was clearly a supervisor who made the first move of violence. And Wemple admitted , during the hearing, that he was under bond for appearance before the grand jury, as a result of criminal charges arising from his attack upon Bush . The record contains no evidence of any countercharges against Bush. The Trial Examiner concludes and finds that the Linden Avenue occurrence was precipitated by the violent conduct of Supervisor Wemple, and that the preponder- ance of credible evidence fails to support the relevant allegations of the complaint. 26. Portsmouth alley, October 11 This is a minor incident between two striking female employees 'and Patricia Wil- son, a training instructress for General Telephone . No pickets were involved. According to Wilson, although she had been working at the Seventh Street office in Portsmouth since Labor Day without incident, she was the victim of an unpro- voked attack by three strikers, Juanita Conley, Janet Ward, and Ruth Beadle, when she returned to work from lunch on October 11. Her testimony is unsupported. According to her, these three just walked up to her, saying nothing, and began slap- ping her around. Her testimony is unconvincing. The account of the incident, candidly admitted by the girls accused by Wilson, is the more credible and is accepted as true, particularly in view of the fact that it appears that Wilson was interfered with in no fashion either before or after October 11. In substance their account is as follows: While Beadle was in the Western Union office, Conley and Ward waited for her in a car parked at the curb. As they sat there, Wilson came by. Conley told Ward she was going to talk to Wilson. She left the car, caught up with Wilson, asked her if she was going in to work for the telephone company, and when Wilson replied that she was, asked her not to. Wilson promptly replied that she had no time "to be bothered with any sons of bitches"- a remark heard also by Ward, who had followed Conley. Conley slapped Wilson, and turned to leave. Wilson called her a son-of-a-bitch, and Conley slapped her again. Ward took no part in the affair, and did not touch Wilson. The Trial Examiner concludes and finds that the preponderance of credible evidence fails to sustain the allegations of the complaint as to this incident. 27. Cap pistol at Ett Mar, October 12 Paragraph 14 (23) of the complaint contains the most serious yet least specific allegation in the entire document issued by General Counsel. It reads: On or about October 5, 1956, driving past the Ett-Mar Motel on Kendall Avenue in Portsmouth, Ohio, and there discharging a firearm at the said Motel buildings, in which supervisory and managerial personnel of the Em- ployer were residing. The Trial Examiner notes that no individual, or individuals, are specifically named as having discharged "a firearm," nor are any individuals named in the introduc- tory section of paragraph 14, which merely claims that the CWA and its local have violated the Act "by and through their officers, agents, and representatives." The evidence adduced by General Counsel, concerning the alleged incident, is even less revealing than the text of the complaint. It is further observed that in their briefs neither General Counsel nor counsel for the Charging Party specify the individuals, if any, whom they believe-or wish the Trial Examiner to believe- actually discharged "a firearm." Counsel for the Company merely points to the testimony of one of his witnesses, General Counsel refers to "participants." 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Testimony regarding the incident was given by two General Telephone super- visors, Seward and Casteel, both of whom have previously been found to be un- reliable witnesses, and the latter found to have threatened strikers with his gun at the Star Yard incident. The Trial Examiner considers it unnecessary to discuss, in extensive detail, all the inconsistencies, contradictions, and confusion in the testimony of Seward and Casteel, nor the many improbabilities and obvious impossibilities of fact raised by such testimony. A few are enough. In the first place, Seward admitted that he gave the wrong date of the occurrence to the Board's Regional Office in October-shortly after the event. If he later discovered his error, as he said, then General Counsel was apparently unaware of it, for no correction was made by the latter before the hearing, and from his ex- amination of Seward it is indicated that he still believed the real date to be October 4 and 5. At the hearing Seward and Casteel insisted that it was really the night of October 11-12. According to Seward he and Casteel had been cruising around the city all that night, in a company car, reporting by radio telephone to another supervisor sta- tioned in the main office building the license numbers of cars they saw inthe vicinity. of the Dewey and Albert Street exchange. During the night they went-'sev- eral times to the Ett Mar Motel, on the city's outskirts, for coffee in room 11, occupied by Division Manager Kimball.' At about 3 a. in., when it was dark, they again visited this room. At first, on direct examination, Seward said Supervisors Foster and Ghearing were in the room, then he said Ghearing "was standing out in front of the building." On cross-examination he said that Kimball "wasn't in the room," but only Casteel and Foster besides himself. In remarkable contradis- tinction to Seward's testimony on this point is that of Casteel who, when asked by General Counsel who was present in the room, replied, "Mr. Seward, Mr. Kimball, George Ghearing, Bob Erhman, they was all present, Bob Foster." One question later Casteel added, "And it was two commercial fellows in the room, and Mr. Kimball, and several ladies." Quite a crowd was gathered in a motel room, it seems to the Trial Examiner, if Casteel is to be believed, yet only two of them appeared as witnesses. While the 2 or 3-or the many-(depending upon whose version is accepted) were in the room, both Seward and Casteel said that a car went by, and someone in it was firing what they both thought was a "cap pistol " According to Seward's version (and despite the above-noted fact that he had placed Ghearing both inside and outside the motel room) before any "shooting" Ghearing called in to him, "There they are again" (on direct examination) or "There's one of them, or `There's that car,' or something like that, to that effect" (on cross-examination). Yet Seward also said on cross-examination he had no advance warning that "this car was coming by." Seward said that he first saw the passing car when it was "right directly in front" of the motel room, inside the doorway of which he was standing. He said the car was passing at "thirty or thirty-five miles an hour," that he could observe "who was in the car" for "ten or fifteen seconds" (and this despite the fact, if he is to be believed, that he was standing to the north of the doorway, while the was going north. Seward testified that-despite the darkness-he could see that the car "was a black green or dark blue" "with a light top," and "as it went by the street light I seen Ray Born, his head and arm sticking out, and he was shooting at the Ett- Mar." On cross-examination Seward said that Born "had his head and his shoul- der and arm out of the window, just like he was aiming." He then said that he also could see "the gun," but could not tell what kind it was because "it was mostly covered up by his hand." And although he said he believed it was a cap pistol, he said it "made an awful loud report." Yet Casteel, standing in the doorway beside him, said "we couldn't see the man" but "could see the gun." Still thinking, if they are to be believed, that either Ray Born or some unseen per- son-depending upon the version of the two supervisors-had fired a "cap pistol," Casteel and Seward set out after the car. B ith supervisors admitted th,t they lost it for some 15 minutes Finally, after circling around, and when still "100 to 120 yards" from Kendall Avenue-on which the motel is located-Seward said he rec- ognized "the same car" cross 17th Street, going south on Kendall, firing "several more shots at the motel." Yet immediately after this testimony, he said that "by the time we turned down Kendall and started to follow them, they were right about directly in front of the motel office." To reach Kendall, it is noted, Seward's car had to travel "100 to 150 yards," and he said "we were travelling very slow." He COMMUNICATIONS WORKERS OF AMERICA 71'1 said that he "heard" about four shots, this time, but could not see the firing. Casteel, on the other hand, said that he could see the firing "from the driver's side." They got close enough to the passing car, Seward said, to discern the license num- ber-yet they "stayed back about a block." Seward said that he, by radio telephone, reported the license number to "the man up in the eighth floor," and continued to follow the car downtown. Since his car was following the other, the Trial Examiner has some difficulty in determining just what Seward meant by saying, "They made almost the same movements we did." Eventually the car they were following pulled up by a police cruiser. The super- visors came around and parked in such fashion that their headlights shone into the other car, and Seward said he distinguished strikers Born and Martin in the front seat, and Russell Lewis in the back seat. Casteel, however, said he "recognized Born," and that "he was setting in the cruiser talking to the patrolman." Neither supervisor, however, said anything to the police. After a few minutes the supervisors left this scene, and proceeded toward the Seventh Street office. According to Seward, when they "were about there," "the man on the eighth floor" told them, by radio telephone, to go back to the motel- somebody had been shooting through the windows - He said they went at once to the motel. Casteel's testimony, however, is confused and contradictory, on this point. He said he could not remember when they went to the Seventh Street ex- change after seeing the car by the police cruiser,,nor could he remember when Seward told him of the report about the shooting. "Seward didn't tell me right off the reel when he got that information from the master station," he said. He said it was "possible" that Seward found out about the shots and "sometime later" told him about it. He said it was possible "because there was a truck on fire and it burnt up down at Seventh Street." Then he said he did not remember what night the truck burned. The following colloquy is quoted: Q. Did it happen that night?-A. I think it did. Q. Did you go down to see it?-A. Down to see it? I put it out. Q. . Did you do that before or after you went up to the Ett-Mar Motel?- A. I don't remember. Q. You say you put it out, though?-A. I put out the fire. The date, I can't tell you what date it was. It appears that eventually, whether they stopped to put out a fire or not, the two supervisors arrived back at the motel. At various points in his testimony Seward said police showed up from 10 to 20 minutes after they arrived. There was some confusion at the motel when Seward and Casteel returned, as is reflected in the latter's testimony: There was a lot of confusion, and the boys, our people, employees, was going back and forth up the walk there, and the two girls had come out, and two commercial men, I don't know them by name, and had told about the shooting, through their windows, and . . . . Casteel said that he did not talk to the police officers, saw none of the bullets said to have been removed, did not find out how many shots had been fired through the motel, and did not report to, or pass any information on to, anyone in any official capacity of the Ohio Telephone Company. He further said he did not hear Seward talk with the police officers. Seward, on the contrary, testified that he told the police officers the names of the individuals who did the shooting, and gave them the license number of the car, and told them where he had last seen "this automobile with the occupants." If all the testimony of these two supervisors is to be accepted as true, then General Counsel has proven beyond doubt that truth is stranger than fiction. He has not proven, however, to the satisfaction of the Trial Examiner, that any one of the three individuals seen by Seward and Casteel downtown, half an hour after the alleged shooting, was in any way implicated in causing bullet holes in the Ett Mar Motel. It is not within the experience, real or vicarious, of the Trial Examiner that it takes 30 minutes or more for bullets to travel 100 feet, and cause confusion on the part of occupants of motel rooms. If the occupants were not startled or awakened by the impact-and the supervisors admitted that the second time they went by the motel all was peaceful-then there remains to be explained what it was that caused their awakening after another 15 or 20 minutes had elapsed. Since it has been established by undisputed testimony that two management rep- resentatives carried guns-Lennberg and Casteel-imagination offers a possible solu- tion to, the mystery. The Trial Examiner, however, indulges in no findings based upon imagination alone. 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under the circumstances as above described, the Trial Examiner concludes and finds that the preponderance of credible evidence fails to support even the general and unspecific allegations of the complaint as to this incident 24 28. Conclusions as to all incidents In summary, the Trial Examiner concludes and finds, as factual matters, that only the following incidents occurred as alleged in the complaint: (a) Blocking company truck, July 19 (Item B-2, above). (b) Impeding of supervisors, New Boston exchange, July 30 (Item B-6, above). (c) Impeding of supervisors, Sciotoville, July 30 (Item B-7, above). (d) Threatening supervisors, Blaine Matthews farm, August 13 (Item B-10). (e) Turkey Shop incident, August 13 (Item B-12, above). D. Conclusion Now to apply the foregoing findings of fact to the legal conclusions sought by General Counsel, set out in succinct fashion in his brief. He contends that: 1. The Respondent CWA and Local 4372 are jointly liable for the alleged violations charged herein because of their joint conduct of the strike. 2. Agents of Local 4372 instigated and committed various acts of violence against supervisors of the Charging Party and against supervisors and em- ployees of its parent corporation. 3. Such acts of violence constituted restraint and coercion of employees in violation of Section 8 (.b) (1) (A). 4. As a matter of law such conduct restrained and coerced both the striking as well as the nonstriking employees of the Charging Party and the employees of its parent corporation who witnessed or learned of such conduct. 5. The subjective reaction of both striking and nonstriking employees of such conduct is not material to the issues in this case since such conduct necessarily tended to coerce and restrain such employees. As to point (1) : the Trial Examiner agrees with this contention to the extent that he concludes and finds that the strike and the incidents of misconduct against supervisors found above were all included in the joint effort being engaged in by both CWA and its local. As to point (2): the Trial Examiner concludes and finds that agents of the Local committed the acts found above against supervisors of the Charging Party and its parent corporation. As to the claim that acts of violence were committed against employees of the parent corporation, the credible evidence, as noted above, will not support such a finding or conclusion. General Counsel cites but one individual, whom he characterizes as an "employee" of the parent corporation, against whom he alleges coercion was visited. That is Patricia Wilson. Without determining here whether or not she appropriately may be classified as an "employee" or a "super- visor" (it is clear from her testimony that the hiring of new employees depends largely upon her reports as to how well they conform to her training of them) it has been specifically found, in section B-26 above, that Wilson invited retaliation by calling a striker-not a picket-a vulgar name. It was there found and concluded that even if the slapping could reasonably have been attributed to the Local, it was the consequence of Wilson's precipitating conduct, and not coercive. It is there- fore concluded and found that the record reveals no instance of coercive conduct by union agents against employees of the parent corporation. As to point (3), since that is the ultimate conclusion sought, discussion of it will be reserved. As to points (4) and (5), they will be considered together, since they are re- lated. Reserving for a moment appraisal of the major claim that strikers were coerced by misconduct against supervisors, the Trial Examiner turns to the question of coercion of "non-striking employees of the Charging Party and the employees of its parent corporation who witnessed or learned of such conduct." First as to "nonstriking employees of the Charging Party." General Counsel specifies five such individuals, secretaries to management officials: Maynard, Welch, Reed, Petersen, and Carpenter. He contends that Maynard was prevented from entering 24 Apparently the Charging Party had less hesitancy in urging the commission of a crime before the Board, than before a local court. For it filed no criminal charges, on this point, although , as previously found, it did file a charge of violation of a city ordi- nance when a single tomato splattered against a truck Matz was examining. COMMUNICATIONS WORKERS OF AMERICA 713 an exchange and also learned of the Pat Wilson incident . It has been concluded and found, in section B-8 above, that Maynard was not physically or coercively prevented from entering an exchange, and as just pointed out the Wilson incident was not coercive . As to the claim that all five secretaries were "coerced" by "learning about" incidents of misconduct, the Trial Examiner fails to comprehend the nature of General Counsel 's reasoning. All five worked throughout the strike , none were molested or directly coerced . Does General Counsel mean that had these secretaries not learned of some coercive conduct against supervisors they might have joined the strikers? Second, as to the three employees of the parent corporation, Pat Wilson, Callehan, and Hollinger-the latter being Wilson's coworker who was told by Wilson of the event in the alley . General Counsel claims that Callehan wit- nessed the event described in section B-21. By her own testimony she could iden- tify no one engaged in any misconduct . That the three General Telephone em- ployees heard about alleged and actual incidents of misconduct against supervisors, the Trial Examiner has no doubt. But as in the case of the five secretaries, they continued to work, without direct interference. It is clear, undisputed, and con- cluded and found , that none of these secretaries or General Telephone employees were deterred from working as they chose and were not coerced into abandoning their work and joining the strike . As to whether or not such employees were "subject to coercion," as General Counsel further claims in his brief, the Trial Examiner believes this point can only be resolved in the light of the nature of the miscon- duct itself. And since that factor also must be considered in appraising the merit of General Counsel's larger claim that strikers were likewise subject to coercion and were coerced , further comment will be held in abeyance. Returning to the conclusion that strikers were coerced by their own misconduct against supervisors , through participation , witnessing, or reading about it in the newspapers , General Counsel cites W. T. Smith Lumber Co . ( 116 NLRB 507), the only case within the Trial Examiner's knowledge where legal (within the meaning of the Act) misconduct against supervisors has been found by the Board to be illegal misconduct against themselves , if they witnessed or heard about it. The pertinent portion of that decision is quoted : (p. 508) We find, in agreement with the Trial Examiner , that the striking employees herein were subjected to restraint by the misconduct of the pickets in their pres- ence, although such misconduct was not directed against the striking employees themselves. We think it reasonable to infer that such misconduct had the effect of coercively deterring any of the strikers from abandoning the strike and re- turning to work. The Trial Examiner believes that the above-cited case and the case here under con- sideration are plainly distinguishable . In the former case there were substantial find- ings of actual coercion against nonstriking employees . In this case it has been found above that there was not a single instance of any coercive misconduct of pickets or strikers against any employee . Also in the Smith case it is apparent from the Inter- mediate Report, adopted by the Board , that the Respondent Union offered no evi- dence in pertinent rebuttal to the inference General Counsel was there seeking-to the effect that misconduct against supervisors was coercive in its nature and effect upon strikers themselves . In this case about 185 strikers testified in rebuttal on this point. At this juncture it may be well to focus upon certain stubborn and insurmountable facts. All of the coercive conduct found was directed against supervisors, particu- larly "outsiders," who were brought in by the parent corporation for some main pur- pose other than actually performing the work of strikers, since it is undisputed that most of them merely stood around a job site while one or two did the work. None of the coercive conduct was directed against employees. The one employee who had gone on strike, and who had abandoned the strike to return to work , was unmolested. Do the above circumstances-plainly different from those existing in the Smith case-provide an irrebuttable foundation or premise from which it may be inferred, excluding any direct evidence to the contrary, that either in nature or effect the mis- conduct coerced or tended to coerce the strikers? The Trial Examiner does not be- lieve so. It appears that General Counsel 's evidence, as to the nature of the conduct and as to the individuals against whom it was wholly directed, creates only an un- certain premise. The governing rule, it seems to the Trial Examiner, is: A presumption of fact must not be drawn from premises which are uncertain, but must be founded on facts established by direct evidence . Presumptions may not be founded on presumptions.25 0 Corpus Juris Secundum , vol 31, par. 116, p 727. 714 DECISIONS OF .NATIONAL LABOR RELATIONS BOARD Furthermore: It follows from the nature of a presumption of fact that it is rebuttable 26 Contrary to General Counsel's contention that the Trial Examiner erred in ad- mitting rebuttal testimony from the strikers themselves, the Trial Examiner believes he would have erred had he excluded it. About 185 strikers, mostly women, testified firmly and convincingly that: (1) they had had no desire to abandon the strike and their fellow strikers; and (2) nothing they had participated in, witnessed, or heard about during the strike had prevented them from abandoning the strike. The demeanor of these witnesses, as they testified, demonstrated their sincerity. They were bound together in a common cause, and as many of them said, in effect, they were resolved to remain on strike until all went back. Management and its supervisors, representatives of management; were their opponents in a long and bitter economic struggle. They, themselves, had been threatened with violence by the gen- eral counsel of the Charging Party, as found above. The first act of violence, also as found above, occurred when Casteel ran into a picket with his truck. Comparative peace existed until the Charging Party brought in strangers-who stood around job sites without working-an invitation to violence. , On the basis of direct evidence, and upon reasonable inferences drawn from un- contradicted evidence, the Trial Examiner cannot reasonably conclude that: (1) mis- conduct by strikers against supervisors was designed or calculated to have a coercive effect upon either strikers or employees of the parent corporation; or (2) such mis- conduct either had or might have had a coercive effect upon strikers or employees of the parent corporation.27 Finally, and returning to point (3), the Trial Examiner concludes and finds that the misconduct of union agents described herein did not constitute restraint and coercion of employees in violation of Section 8 (b) (1) (A). Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Communications Workers of America, AFL-CIO, and Local No. 4372, Com- munications Workers of America, AFL-CIO, are labor organizations within, the meaning of Section 2 (5) of the Act. 2. The operations of the Charging Party occur in commerce within the meaning of the Act. 3. The Respondent Unions have not engaged in unfair labor practices as alleged in the complaint, within the meaning of Section 8 (b) (1) (A) of the Act. [Recommendations omitted from publication.] 23 [Nd, p 726 27 To infer, in a vacuum, that coercion against an opponent Is coercion against oneself hardly squares with the realities of industrial strife as revealed in this record. Kalof Pulp & Paper Corp. and International Union of Operating Engineers, Local 501, AFL-CIO International Brotherhood of Paper Makers and its Local Union No. 670, AFL-CIO and its successor, United Paper Makers and Paper Workers, AFL-CIO and International Union of Operat- ing Engineers, Local 501, AFL-CIO. Cases Nos. 21-CA-2634 and 21-CB-875. May 1, 1958 DECISION AND ORDER On August 20, 1957, Trial Examiner David F. Doyle issued his Intermediate Report in the above-entitled proceeding, finding that 120 NLRB No. 104.