A. O. Smith Corp.

A. O. SMITH CORPORATION, GRANITE CITY PLANT 339 3. The Respondents have not engaged in the unfair labor practices alleged in the,, complaint 75 [Recommendations omitted from publication.] 75 For reasons stated , this conclusion applies to Local 224. The complaint against the District Council is barred by Section 10(b) of the Act. A. O. Smith Corporation,' Granite City Plant and William T. Randolph, Thomas L. Willmore, James L. Hall, Arley Potts, Anton Becker, William E. Watts, Ruben Luther, Frank Becker, William R. Hogan, Clyde Woolverton, Henry L. Kent, Thomas E. Gipson, Clarence E. Shaw, Frederick J. Bailey, Albert W. Ennis, Conrad F. Bauer, Harry W. Nichols, William G. Whit- son, Harold R. Garner, Sr., Elroy Paschedag, Albert Rowden, Arthur Ray Miller, and' Calvin J. Cissell International Brotherhood of Boilermakers , Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Local Union No. 575 2 and William T. Randolph, Thomas L. Willmore, James L. Hall, Arley Potts, Anton Becker, William E. Watts, Ruben Luther, Frank Becker, William R. Hogan, Clyde Woolverton, Henry L. Kent, Thomas E. Gipson , Clarence E. Shaw, Fred- erick J. Bailey, Harry W. Nichols, William G. Whitson, Harold R. Garner, Sr., Elroy Paschedag, Albert Rowden, and Arthur Ray Miller. Cases Nos. 14-CA-1757, 14-CA-1759, 14-CA-1760, 14-CA-1761,14-CA-1762,14-CA-1763,14-CA-1764,14-CA-1765, 14-CA-1766, 14-CA-1767, 14-CA-1768, 14-CA-1769114-CA-17701 14-CA-1771114-CA-1774,14-CA-1775,14-CA-1777,14-CA-1778,. 14-CA-1781114-CA-1782,14-CA-1789, 14-CA-1804,14-CA-1828, 14-CB-526, 14-CB-530, 14-CB-531, 14-CB-532, 14-CB-533, 14- CB-534, 14-CB-535, 14-CB--536114-CB-537,14-CB--538,14-CB- ,539, 14-CB-540, 14-CB-541, 14-CB-542, 14-CB-545, 14-CB-546, 14-CB-548, 14-CB-549, 14-CB-552, and 14-CB-562. July 21, 1961 DECISION AND ORDER - On April 15, 1960, Trial Examiner Charles L. Ferguson issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. ' The Trial Examiner also found that the Respond- ents had not engaged in other unfair labor practices alleged in the ' Referred to herein as the Company. Referred to herein as the Union. 132 NLRB No. 9. 614913-62-vol. 132-23 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaints and recommended that such allegations be dismissed. Thereafter the Respondents filed exceptions to the Intermediate Re- port and the Respondent Company filed a brief in support of its exceptions.3 The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in these cases, including the Intermediate Report, the excep- tions,4 and brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. 1. In agreement with the Trial Examiner, and for the reasons stated in the Intermediate Report, we find that the Respondent Company, by the discharge of employee Albert Rowden on December 16, 1957; the layoff of employee William T. Randolph on January 17, 1958; the alteration of its contract with the Union to accomplish this layoff ; and the discharges on January 22 and 23, 1958, of strikers William T. Randolph, Thomas L. Willmore, James L. Hall, Arley Potts, Anton Becker, William E. Watts, Ruben Luther, Frank Becker, William R. Hogan, Clyde Woolverton, Henry L. Kent, Thomas E. Gipson, Clar- ence E. Shaw, Frederick J. Bailey, Harry W. Nichols, William G. Whitson, Harold R. Garner, Sr., Elroy Paschedag, Arthur Ray Miller, and Calvin J. Cissell, and sympathy strikers Albert W. Ennis and Conrad F. Bauer,' violated Section 8(a) (3) and (1) of the Act. i Following the hearing the Company filed a motion for oral argument and a motion to reopen the record because of alleged changed circumstances . The General Counsel filed a memorandum in opposition to the motion to reopen the record The motion for oral argument is hereby denied as the record , the exceptions, and the brief adequately present the issues and positions of the parties. The motion to reopen the record is based upon the contention that the removal of Herzing and his group from leadership of the Union subsequent to the hearing renders unnecessary that portion of the Trial Examiner's recommended remedy which requires the Company to cease recognizing the Union unless and until it is certified pursuant to a Board-conducted election . The General Counsel contends , and we agree , that the removal of Ilerzing and his group from the Union 's leadership does not render unnecessary the withdrawal of recognition and the holding of an election as recommended by the Trial Examiner. Accordingly, the motion is denied. 4 The Respondent Union moved to dismiss the complaints upon the grounds that : (1) The evidence adduced failed to establish the violations alleged; (2) the Trial Examiner's rul- ings on the admissibility of evidence were erroneous and prejudicial ; '( 3) the Trial Examiner relied upon evidence of occurrences which took place more than 6 months prior to the filing of the applicable unfair labor practice charge; and ( 4) the Trial Examiner manifested bias and prejudice against the Respondents . The Respondent Company also excepted to the entire Intermediate Report on the ground that the Trial Examiner had exhibited bias against the Company . Upon careful examination of the entire record and the Intermediate Report , we are satisfied that the Respondents' contentions relating to the weight of the evidence and its admissibility are without merit As to the contention of bias , the Supreme Court has stated that even "total rejection of an opposed view can- not of itself impugn the integrity or competence of a trier of facts." , N L.R.B. v. Pitta- burgh S.S Co , 337 U. S 656, 659. Accordingly , the Respondents ' motions are hereby denied 5 Texas Foundries, Inc., 101 NLRB 1642 , enforcement denied on other grounds 211 F. 2d 791 (CA. 5 ) ; West Coast Casket Company, Inc, 97 NLRB 820, enfd . 205 F 2d 902 ( CA. 9) Cf Brown and Root, Inc , et. at. d/b/a Ozark Dam Constructors , 99 NLRB 1031, enfd . as mod 203 F. 2d 139 ( CA. 8). The Board majority in that case drew a A. 0. SMITH CORPORATION, GRANITE CITY PLANT 341 2. As did the Trial Examiner, and for the reasons given in, the Intermediate Report, we find that the Respondent Company violated Section 8 (a) (2) and (1) of the' Act by the following conduct : (a) Demoting William T. Randolph on November 4, 1957, from his foreman's position to rank-and-file status. (b) Discharging Albert Rowden on December 16,1957. (c) Compensating Union President Willard Herzing and Vice, President Flarce Warfield, at their regular rates of pay, for time spent. in the plant in the conduct of the Union's business other than con-- ferring with the Company concerning grievances or contract negotia- tions under a continuation of the so-called "Costello" agreement freeing Herzing and Warfield from the obligation to perform the work for which the Company paid them. (d) Permitting agents of the Union to engage in union activities in the plant during working time to combat the activities of employees in ,opposition to the Union, this despite the Company's rule forbidding such activities in the plant, and in the context of instructions given to supervisors and foremen to prevent union activities in the plant by "outside unions" which in effect meant the employees opposing the Union. (e) Providing IBM employee address slips to the Union at com-' pany expense to be used by the Union to combat the activities of em- ployees in opposition to it. (f) Permitting the Union to post notices on the Company's bulle- tin board and to distribute literature to employees on company premises in its campaign against employees opposed to it while for-' bidding employees opposing the Union to engage in such conduct on or within company premises. 3. We find, as did the Trial Examiner, and for the reasons stated in the Intermediate Report, that the Union violated Section 8 (b) (2) and (1) (A) by causing or attempting to cause the Employer to lay off employee William T. Randolph on January 17, 1958, in violation of Section 8 (a) (3) and (1) of the Act. . distinction in an unlawful refusal -to-bargain situation between, on the one hand, sym- pathy strikers who themselves comprised a separate appropriate bargaining unit In the same plant and enjoyed collective -bargaining relations with the offending employer, and, on the other hand, sympathy strikers in the plant who were wholly unrepresented. The Board majority held that the former group, because they themselves enjoyed bargaining rights, were not directly affected or aggrieved by the employer's unlawful refusal to bar- gain with the employees in the other unit and, hence, should be regarded as economic strikers and not as unfair labor practice strikers . The unrepresented employees , however, stripped of this Insulation , were directly affected and were found to be entitled to the status of unfair labor practice strikers. The validity of that distinction aside-as already indicated , there was a division of opinion in the Board in Brown & Root-the instant case, Involving the discriminatory discharge of employees , is plainly distinguishable. Here, there was no basis upon which to anticipate differing action by the Employer and the discriminatory discharge of employees in one represented unit in the plant posed a threat of similar action to ' employees In the other units in the plant. 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. For the reasons stated in the Intermediate Report, we find, in agreement with the Trial Examiner, that the Union violated Section 8 (b) (1) (A) by the following conduct: (a) Threatening employees through its officials and stewards from January 9 to 22, 1958, with loss of employment if they refused to re- voke authorizations given by them to William R. Hogan in support of a petition for an election under Section 9 (e) of the Act to rescind the Union's authority to make a union-security agreement in the unit represented by it. (b) Causing the Employer to demote William T. Randolph from his position as foreman to rank-and-file status thereby restraining and coercing employees in the exercise of their rights under Section 7 of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : A. The Respondent Company, A. O. Smith Corporation, Granite City Plant, Granite City, Illinois, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discriminating in regard to the hire or tenure of employ- ment of its employees to encourage or discourage membership in In- ternational Brotherhood of Boilermakers, Iron Ship Builders, Black- smiths, Forgers and Helpers, AFL-CIO, Local Union No. 575, or any other labor organization of its employees. (b) Recognizing the above-named labor organization as the exclu- sive representative of its employees for the purpose of collective bar- gaining, unless and until said labor organization shall have been certified by the National Labor Relations Board as the exclusive bar- gaining representative of said employees in an appropriate unit. (c) Performing, enforcing, or giving effect to any agreement which it may have with the above-named labor organization, or to any re- newal, modification, or supplement thereof, unless and until the afore- said labor organization shall have been certified by the National Labor Relations Board as the exclusive bargaining representative of the Company's employees in an appropriate unit; Provided, however, That nothing herein shall be construed to require the Company to vary any substantive provisions of such'agreement, or to prejudice the assertion by the employees of any rights they may have thereunder. (d) Giving material aid or support to the above-named or any other labor organization, and otherwise interfering with the representation of its employees through a labor organization of their own choosing. A. O. SMITH CORPORATION, GRANITE CITY PLANT 343 (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition from International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forg- ers and Helpers, AFL-CIO, Local Union No. 575, or any successor thereto, as the exclusive representative of the Company's employees for the purpose of collective bargaining, unless and until the said labor organization shall have been certified as collective-bargaining repre- sentative of such employees in an appropriate unit. (b) Offer to William T. Randolph immediate and full restoration to his former position as foreman with credit to him of all seniority to which he had been entitled before the January 16, 1958, alteration of the Company's labor contract with the above-named labor organiza- tion, and jointly and severally with the above-named labor organiza- tion make Randolph whole for any loss of earnings suffered by him as a result of his demotion from his position as foreman on November 4, 1957, to a rank-and-file job, as provided in the section of the Inter- mediate Report entitled "The Remedy." (c) Offer the persons named below immediate and full reinstate- ment to their former or substantially equivalent positions and make them whole for any loss of earnings suffered by them because of the discrimination against them in the manner provided in the section of the Intermediate Report entitled "The Remedy" : Albert Rowden, Harold R. Garner, Harry W. Nichols, Clyde Woolverton, James L. Hall, William G. Whitson, Ruben Luther, Calvin J. Cissell, Frederick J. Bailey, Anton Becker, Frank Becker, Thomas Gipson, Henry L. Kent, Arthur Ray Miller, Elroy Paschedag, Arley Potts, Clarence E. Shaw, William E. Watts, Thomas L. Willmore, Albert W. Ennis, Conrad F. Bauer, and William R. Hogan. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due and the rights of employment under the terms of this Order. 344 - -DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Post at its'place of business in Granite City, Illinois, copies of the notices attached hereto marked "Appendix A" and "Appendix B." I Copies of said notices, to be furnished by the Regional Director for the Fourteenth Region, shall, after being duly signed by the respec- tive representatives, be posted by the Company immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, de- faced, or covered by any other material. (f) Notify the Regional Director for the Fourteenth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. B. The Respondent Union, International Brotherhood of Boiler- makers, Iron - Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Local Union No. 575, its officers, agents, representatives, successors, and assigns, shall : 1. Cease and desist from : (a) Causing the Company to demote its foremen in order to restrain and coerce employees in the exercise of their right under Section 7 of the Act to support or to refrain from supporting the above-named labor organization or any other labor organization. (b) Causing or attempting to cause Respondent Company to lay off employees in violation of Section 8(a) (3) of the Act. (c) Threatening employees with loss of employment to restrain or coerce them in the exercise of their right under Section 7 of the Act to support or to refrain from supporting the above-named labor or- ganization or any other labor organization. (d) In any other manner restraining or coercing employees of A. O. Smith Corporation, Granite City Plant, Granite City, Illinois, 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) Jointly and severally with the Company make whole William T. Randolph for any loss of earnings suffered by him because of his demotion on November 4, 1957, from his position as foreman to a rank- and-file job in the manner provided in the section of the Intermediate Report entitled "The Remedy." (b) Post at its business offices and meeting halls in Granite City, Illinois, copies of the notices attached hereto marked "Appendix A" 6 In the event that this Order is enforced by a decree of a United States Court of Appeals, 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." A. O.,SMITH CORPORATION, GRANITE CITY PLANT 345 .and "Appendix B."' Copies of said- notices, to be furnished by the Regional Director for the Fourteenth Region, shall, after being duly signed by the respective representatives, be posted by the Union im- mediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken to insure that, said notices are not altered, defaced, or covered by any other material. - (c) Mail to the Regional Director for the Fourteenth Region signed copies of the notice attached hereto marked "Appendix B," for post- ing by Respondent Company, at its place of business at Granite City, Illinois, in all places where notices to or communications for employees are customarily posted. Copies of said notice, to be furnished by the Regional Director for the Fourteenth Region, shall, after being signed as provided in paragraph (b) above, be forthwith returned to the Regional Director for such posting. (d) Notify the Regional Director for the Fourteenth Region, in writing, within 10 days from the date of this Decision and Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges other violations of the Act not found herein. MEMBERS RODGERS and BROWN took no part in the consideration of the above Decision and Order. I See footnote 6, supra. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT encourage or discourage membership in Interna- tional Brotherhood of Boilermakers, Iron Ship Builders, Black- smiths, Forgers and Helpers, AFL-CIO, Local Union No. 575, or any other labor organization of our employees, by discriminat- ing in regard to hire or tenure of employment. WE WILL NOT give material aid or support to International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Local Union No. 575, or any other labor organization, or otherwise interfere with the repre- sentation of our employees through a labor organization of their own choosing. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL withdraw and withhold all recognition from Interna- tional Brotherhood of Boilermarkers, Iron Ship Builders, Black- smiths, Forgers and Helpers, AFL-CIO, Local Union No. 575, or any successor thereto, as exclusive representative of our employees for the purpose of collective bargaining, unless and until said labor organization shall have been certified by the National Labor Relations Board as such exclusive representative in an appropriate unit. WE WILL NOT perform, enforce, or give effect to any current con- tract with the aforesaid labor organization, or to any extension, renewal, modification, or supplement thereof, unless and until said labor organization shall have been certified by the National Labor Relations Board as the exclusive bargaining representative of our employees in an appropriate unit. However, in our relations with our employees, we will not vary the wages, hours of employ- ment, rates of pay, seniority, or other substantive provisions, which have been established pursuant to said contract. WE WILL offer to William T. Randolph immediate and full res- toration to his former position as foremen and credit him with all seniority to which he had been entitled before the January 16, 1958, alteration of our contract with the above-named labor organization, and jointly and severally with said labor organiza- tion make Randolph whole for any loss of earnings suffered by him as a result of his demotion from foreman to a rank-and-file job. WE WILL offer the persons named below immediate and full re- instatement to their former or substantially equivalent positions and make them whole for any loss of earnings suffered by them as a result of the discrimination against them : Albert Rowden, Harold R. Garner, Sr., Harry W. Nichols, Clyde Woolverton, William G. Whitson, Calvin J. Cissell, Frederick J. Bailey, Anton Becker, Frank Becker, Thomas E. Gipson, James L. Hall, Henry L. Kent, Ruben Luther, Arthur Ray Miller, Elroy Paschedag, Arley Potts, Clarence E. Shaw, William E. Watts, Thomas L. Willmore, Albert W. Ennis, Conrad F. Bauer, and William R. Hogan. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor or- A. 0. SMITH CORPORATION,, GRANITE CITY PLANT 347 ganization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization except to the extent above stated. A. O. SMITH CORPORATION, GRANITE CITY PLANT, Employer. 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. APPENDIX B NOTICE TO ALL MEMBERS OF INTERNATIONAL BROTHERHOOD OF BOILER- MAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND HELPERS, AFL-CIO LOCAL UNION No. 575, AND TO ALL EMPLOYEES OF A. O. SMITH CORPORATION, GRANITE CITY PLANT Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that : WE WILL NOT cause A. O. Smith Corporation, Granite City Plant, to demote its foremen in order to coerce and restrain em- ployees in the exercise of their rights guaranteed by Section 7 of the National Labor Relations Act to support or oppose us. WE WILL NOT cause or attempt to cause A. O. Smith Corpora- tion, Granite City Plant, to lay off employees in violation of Sec- tion 8 (a) (3) of the National Labor Relations Act. WE WILL NOT threaten employees of A. O. Smith Corporation, Granite City Plant, with loss of employment for refusing to re- voke authorizations signed by them in behalf of a petition for an election to be conducted by the National Labor Relations Board to rescind our authority to make an agreement with A. O. Smith Corporation, Granite City Plant, requiring membership with us as a condition of employment in the appropriate unit represented by us. WE WILL jointly and severally with A. O. Smith Corporation, Granite City Plant, make whole William T. Randolph for any loss of earnings sustained by him as a result of his demotion from his position as foreman to a rank-and-file job. 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner restrain or coerce employees of A. O. Smith Corporation, Granite City Plant, in the exercise of the rights guaranteed to employees by Section 7 of the Act. INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS , FORGERS AND HELP- ERs, AFL-CIO, LOCAL UNION No. 575, 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. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE On various dates between January 20 and April 15, 1958, 23 separate charges were filed against Respondent Company, A. O. Smith Corporation, Granite City Plant, by the 23 individuals listed above as Charging Parties in the CA case, alleging violations of Section 8(a)(1), (2), and (3) of the Act, and 20 separate charges were filed against the Respondent Union, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Local Union No. 575, in the CB case, by the 20 individuals listed as Charging Parties in the caption of that case, alleging violations of Section 8(b)(1)(A) and (2) of the Act.' On July 21, 1958, the Regional Director of the Fourteenth Region (St. Louis, Missouri) ordered that the 23 CA charges be consolidated and that the 20 CB charges be consolidated "for the purpose of Complaint and Hearing," 2 and on that same date separate consolidated complaints issued, the CA complaint, against Respondent Com- pany, herein called the Company or merely Smith, alleging violations of Section 8(a)(1)(2), and (3), and the other against Respondent Union, herein called the Union, the Boilermakers, or Local 575, alleging violations of Section 8(b)(1)(A) and (2) of the Act. Copies of the complaints, the charges, the orders of consolida- tion, and notice of hearing were duly served on the parties. The two complaints were joined for hearing by order of the Regional Director. With respect to the unfair labor practices, the complaint in the CA case alleges, in substance: that Respondent Company, at the request of the Union, discriminatorily discharged employee Albert Rowden on December 16, 1957, laid off employee Wil- liam T. Randolph on or about January 17, 1958, and discharged all of the Charging Parties, except Albert Rowden, on or about January 22, 23, and 27, 1958, and has since failed and refused to reinstate Rowden, Randolph, "and all other charging parties," in violation of Section 8(a)(3) and (1) of the Act; that by certain specifi- cally enumerated acts and conduct Respondent Company has, since March 1, 1957, "contributed financial and other support and assistance to the Union," and that "insofar as these acts occurred from and after July 20, 1957," Respondent Company "did interfere with its employees in their exercise of the right to engage in protected, concerted activities, and the right to refrain from engaging in activities on behalf of the Union," all of which constituted unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act; and that by certain specifically enumerated acts and conduct Respondent Company violated Section 8(a)(1) of the Act. With respect to the unfair labor practices, the complaint in the CB case alleges, in substance: that Respondent Union, by its officers, agents, and representatives, "caused or attempted to cause the Company to" discharge Rowden on December 16, 1957, lay off Randolph on January 17, 1958, discharge 4 of the Charging Parties therein named 'The National Labor Relations Act, as amended (61 Stat. 136), herein referred to as the Act. 2 The Charging Parties in the two cases are the same except that three, who filed CA charges against the Company, do not appear as Charging Parties in the CB case Albert W. Ennis and Conrad F. Bauer did not file CB charges, and while Calvin J. Cissell did file a CB charge, same was dismissed. A. O. SMITH CORPORATION, GRANITE CITY PLANT 349 on January 22, 1958, discharge Randolph and 13 other Charging Parties named in that case on January 23, 1958, and William R. Hogan, on January 27, 1958, "be- cause each of the Charging Parties was, or was believed to be, engaging in protected, concerted activities with other employees for the purpose of mutual aid and protec- tion," in violation of Section 8(b) (2) of the Act; and that, by certain specifically enumerated acts and conduct, Respondent Union, in violation of Section 8(b) (1) (A) of the Act, "restrained and coerced . employees of the Company in the exercise of their rights guaranteed in Section 7 of the Act." The answer of each Respondent denied generally and specifically the commission of each and all of the unfair labor practices alleged in the complaint issued against it. Respondent Company's answer avers affirmatively that Rowden was discharged, on December 16, 1957, "for violation of Respondent's Points of Good Order"; that Randolph "was laid off . .. on January 17, 1958, in accordance with" seniority provisions, "as amended January 16, 1958," of the current collective-bargaining agreement between the Company and the (Boilermakers) Union; that Randolph "and all other Charging Parties, except Albert W. Ennis, Conrad Bauer, and Calvin Cissell were discharged on January 22 and 23, 1958, for instigating, supporting, and participating in picketing in violation of" the current collective-bargaining agreement between the Company and the Boilermakers Union; that Ennis and Bauer were dis- charged, on January 23,1958, "for instigating, supporting, and participating in picket- ing" in violation of the current collective-bargaining agreement between the Company and the International Brotherhood of Electrical Workers, Local 309, AFL-CIO" (referred to herein as IBEW); and that Cissell was discharged, on January 22, 1958, "for excessive and unauthorized absences from work." Pursuant to notice, a hearing was held at St. Louis, Missouri, on various dates between September 30, 1958, and February 5, 1959, before me, Charles L. Ferguson, the Trial Examiner duly designated to conduct same. At the hearing full opportunity was afforded all parties to be heard, and to produce, examine, and cross-examine witnesses, introduce evidence material and pertinent to the issues, argue orally at the conclusion of the evidence,3 and file briefs and proposed findings of fact and con- clusions of law. The parties were granted until March 9, 1959, to file briefs, but subsequently, on application of Respondent Company and General Counsel, the time for filing briefs was extended to May 14, 1959, and on May 13, 1959, the General Counsel and Respondent Company filed comprehensive briefs, which have been thoroughly examined and considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY A. O. Smith Corporation is a New York corporation with its principal office and place of business located at Milwaukee, Wisconsin. It operates manufacturing plants "throughout the United States," including the plant here involved, located on U.S. Highway 67, at or near Granite City, Illinois, where it is now and has been at all times material hereto continuously engaged in the manufacture of "automobile frames for Chevrolet cars. The complaint alleges, and Respondents admit, that Respondent Company "in the course and conduct of its business during" the 12 months preceding the filing of the complaint herein, "a representative period, sold and shipped products valued in excess of $50,000 from its Granite City Frame Plant, Granite City, Illinois, directly to points outside the State of Illinois." I find that Respondent Company is, and was at all times material, engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED International Brotherhood of Boilermakers , Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Local Union No. 575, is a labor organization within the meaning of Section 2(5) of the Act. International Brotherhood of Electrical Workers, AFL-CIO, Local 309, and International Association of Machinists, AFL-CIO, referred to in the evidence, are labor organizations within the meaning of Section 2(5) of the Act. 3 Attorneys for the Respondent Union elected to present oral argument on the record, and waived the filing of a written brief. 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES The Contentions and Issues The main body of the Company's production and maintenance employees is rep- resented by the Respondent Union. The Machinists and the Electricians represent lesser groups of the Company's employees in units limited to their particular crafts. On January 20, 1958, a strike was staged at the Company's plant by a few employees who were or had been identified with the Boilermakers. This strike was neither sponsored or approved by any of the foregoing unions and was bitterly opposed by the Boilermakers. Its aftermath was the discharge by the Company of certain of the employees for the declared reason that they had participated or aided in the picketing. The General Counsel contends that these employees were unlawfully discharged by the Company for engaging in a protected strike, while the Company maintains it lawfully discharged them for breaching the no-strike provisions of the labor contracts of the unions which represented them. The General Counsel further contends, and the Company and the Boilermakers deny, that the Boilermakers illegally caused the Company to discharge these employees to eliminate from employ- ment persons who were seeking to unseat the officers of the Boilermakers. To meet the Company's justification that the discharges were caused by the breach of the con- tract provisions against striking, the General Counsel sought to prove that the strike was directly attributable to the Company's unfair labor practice occurring before then and which involved mainly discrimination against certain employees opposing the leadership of the Boilermakers and other acts of unlawful assistance of the Boilermakers. The Company's Labor History The conduct alleged in the complaint as unlawful has its roots in the Company's labor history. This conduct derives fuller meaning by viewing it in that light. It is appropriate, therefore, at this point to review the salient aspects of that history, whereby to discover and reveal the relationship between the Company and the Union, or more particularly certain union officials, and the conduct, attitudes, interests, and motivations of the Company, certain union officials, and certain individual, and groups of, employees. The charges herein were filed on various dates between Jan- uary 20 and April 15, 1958? Although numerous witnesses testified about various phases of the matters next related, the fullest and most complete statement is found in the testimony of Alfred E. Treen, who at all material times was manager of industrial relations at this plant.5 The facts set out in the immediately following composite historical and background statement are for the most part uncontradicted. The Granite City Plant of the A. O. Smith Corporation "is located on U.S. High- way 67," near Granite City, Illinois. "The facility makes one product only . . automobile frames for Chevrolet cars. The facility was designed, engineered, and is operated solely for that function." The Company began operations at this plant in June 1954. The number of employees at that time is not stated. On February 14, 1955, pursuant to Board elections, Local 530 of the Boilermakers Union was certified as the bargaining representative of a unit composed of produc- tion and maintenance workers, excluding, however, the machine shop employees, who were in maintenance, and, on the same date, District 9 of the International Associ- ation of Machinists, AFL-CIO, referred to herein as the Machinists, was certified as the bargaining representative of a unit composed of the said machine shop employees. After these certifications collective-bargaining agreements were entered into with each of the unions. The first contract with the Boilermakers was "consummated on April 18, 1955" with Local 530 for 1 year. On December 20, 1955, the number of the Boilermakers Union was changed from "530" to its present "575," and the certification was amended accordingly by the Board. The first contract with the Machinists Union was entered into in May 1955, also for a period of 1 year. The second Boilermakers contract, with Local 575, was entered into on May 6, 1956, to "remain in full force until July 18, 1958," and "thereafter from year to year unless" notice "to amend or terminate" is given by either party 60 days prior to the anni- versary date. This contract was still in force at the time of the hearing. Each of 4 All but five were filed in January, three in February, one in March, and one on April 15, 1958. c That it may hereafter be borne in mind, attention is here directed at the outset that because of his position and authority, and close connection with events , Treen is an Important factor in this case. A. 0. SMITH CORPORATION, GRANITE CITY PLANT 351 these contracts provided that there should be no strikes, stoppage of work, sitdowns, slowdowns, or picketing on the part of the Union or any of its members. Treen said that throughout the first 2 years, approximately, of operation, June 1954 to about May 1956, the Company operated in a "background of mutiny," union officials of the Boilermakers Union, without getting permission to leave their work stations, "went about the plant uncontrolledly," there were periodic "work stoppages" or "wildcat strikes" by various groups of employees "to gain their point on griev- ances," although when they went into effect, the contracts provided a grievance 'procedure, with arbitration as a final recourse, and that that period "averaged a work stoppage or wildcat strike every 28 days." Willard Herzing, who was "installed" as president of Local 575 on July 29, 1956, a chief steward prior thereto, and more about Herzing and his elevation to the presidency later, said, that during the first 2 years of operation "the plant situation was pretty wild. . . They'd (the employees) sit down any time. . . . There were a number of wildcat work stoppages . . . sit- down strikes . . . because they had particular grievances." It appears this conduct. was largely confined to the members of the Boilermakers Union and that the Ma- chinists "pretty well stayed on the job." That this statement of background facts has thus far related to the approximately first 2 years of operation is not to be taken as an indication that the situation described cleared up to any appreciable degree at the end of that period which was marked by the signing of the second Boilermakers contract on May 6, 1956. it constitutes merely a period of time to which this historical testimony was first directed, nor was the conduct described in any way attributable to, or connected with, the contract negotiations. The next major disturbance, in the order of events, occurred in May 1956, when the Company decided "to remove some scrap from the plant," and employed "an outside organization" to do the work, to which some members of the Boilermakers objected. The scrap was "loaded on a trailer [by outside employees] preparatory to be taken out. . . During the noon hour" two officials of Local 575, Ash, a chief steward, and Bayer, a steward, "climbed up on the scrap conveyer . and threw the scrap on the ground." The Company forthwith discharged Ash and Bayer. Their grievances over their discharge went to arbitration, and the arbitrator found Ash's discharge was justified but took the view that the Company "had been too severe" in the Bayer case, as he "had been somewhat led by Ash." Bayer was reinstated. When the arbitrator's award was announced, Ash "led a strike" which "kept the entire plant shut down for 3 days." The first Machinists contract, of May 1955, for 1 year, being about to expire, beginning well prior to and running into June 1956, the Company and the Machinists Union engaged in negotiations attempting to arrive at a new or second contract, but were unable to agree, and on June 15, 1956, the negotiations were broken off and the Machinists went on strike and put up a picket line. Although their contract (of May 6, 1956) contained a no-strike clause, the Boilermakers Union refused to cross the Machinists' picket line, and a full-blown and complete strike shut down the plant. The picket lines were made up predominantly of members of the Boilermakers Union. The total membership, in the plant, of the Machinists Union did not number more than about 22, while the Boilermakers' membership numbered more than 1,000. The Boilermakers by the sheer weight of numbers, if for no other reason, dominated the picketing from the beginning. With the plant shut down by the strike, the Company appealed to both Local 575 and the Boilermakers International, urging that the Boilermakers comply with their contract and resume work. In response the International placed the Local in a trusteeship and appointed Fred George, "from the outside" as trustee. Through the trustee the International ordered the members of Local 575 "back to work." Only 59 Local 575 members, including the then president and other general officers, obeyed the order to return to work. Mass picketing was being carried on at the gates on such a scale that when, on June 25, 1956, the 59 went into the plant to resume work, pursuant to the order of the International, they, as a group, "had to force their way into the plant through the picket lines." These 59 men were confined and besieged in the plant, along with George, the trustee, who had accompanied them, for a period of 9 consecutive days, by mass picketing maintained by a rebellious group of Boiler- makers, under the leadership of Chief Steward Willard Herzing and his lieutenant, Bill Warfield, who contemptuously disregarded their recent May 6 contract,6 and repudiated their officers and the trustee appointed by the International. 9 Initially and at this time the sole objective of the Boilermakers' strike was to give support to the economic strike staged by the Machinists During this strike Herzine circulated a petition to get rid of the Boilermakers and get a new union in their stead. 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The lifting of the siege of the 59 on the ninth day was brought about by an injunction against the Boilermakers enjoining them "and those acting in concert with them" from engaging in mass picketing and acts of violence at the plant gates. How- ever, the rebellious group of Boilermakers, led by Herzing and Warfield, had no more respect for the order of the court than they had for the orders of their own Inter- national and mass picketing and acts of violence at the gates continued until the Company went into court and charged 19 of them, whom they were able to identify, with violating the injunction. The court held all 19 to be in contempt, and assessed jail sentences against 6 of them.? Thereupon, the Company discharged all of the 19 held guilty of contempt. On July 5, 1956, the Company and the Machinists arrived at a settlement, and the Machinists withdrew their pickets who numbered about six; the Boilermakers, how- ever continued to picket and keep the plant shut down. Thereafter, management representatives met with Grant, an International vice president, an attorney repre- senting the International, and Herzing and Warfield 8 and a settlement was arrived at whereby the Company agreed .to reinstate all the 19 men it had discharged, the Boilermakers agreed to return to work, and the plant resumed operations on July 16, 1956, 32 days after the Machinists' strike started. About here the International removed George and appointed William Costello as trustee. Costello set about what is called a reorganization of Local 575. The former officials, who had obeyed the orders of the International and gone into the plant, were now cast aside and Costello called a new election. This election was apparently held in the latter part of July 1956, and by virtue of his aggressive leadership of the recent rebellion, and success in inducing the Company, as the price of ending the strike, to reinstate all of the 19 men discharged for unlawful picketing activities, of which he was one, Herzing emerged as president, and carried into office with him what appears, in the light of subsequent events, to have been a handpicked slate of officials. Herzing's man, Warfield, 1 of the 19 dischargees, emerged as vice presi- dent, Crowder, 1 of the 19, as treasurer, Ray Ropac as financial secretary, George H. Stearns as recording secretary, Kenneth Lane as chairman of the board of trustees, and Clarence Rocky Mayes, 1 of the 19, as door inspector. Mayes was also made a chief steward. These officials continued in office to the date of this hearing (and presumably since). All, except perhaps Crowder, figure prominently in the course of subsequent events and actively in many and various of the happenings relied upon by the General Counsel as the basis of the alleged unfair labor practices herein. Henceforth, Herzing dominated the Union and he and his group of officials consti- tuted a clique that brooked no opposition. It ill behooved any member to oppose or question Herzing's actions, methods or policies, or, for any reason, to incur his animosity. But, as will appear, Herzing reached out and acquired more vantage points, power, and authority from within the very precincts of management itself. Whether he was ever directly invested by management with the authority and influence he asserted and boasted, his pretensions in that respect served to put in awe many of the mere dues-paying rank-and-file members. Prior to this 1956 major strike in which he somehow became the leader and spokesman of the rebel group, Herzing had worked as a machine repairman in maintenance and was , as stated, a chief steward . He is a dominating and key figure in this case. The Costello Agreement In late August 1956, following Costello's reorganization of Local 575, Costello, who was at that time acting "as contact man for the Union with the Company" ap- proached Treen with a proposition that, as Treen, at one point, stated it, the Com- pany "permit" Herzing and Warfield to be "available full time to help the Union get organized" and to handle grievances, and "stop the possibility of work stoppages." At another point Treen said that Costello proposed an arrangement whereby Herzing and Warfield would "spend full time" in connection "with grievance activities and grievance meetings and various other things" in an effort "to bring order into the situation." It was agreed that both men were to be released altogether from their tools, taken off productive work entirely, and be available to spend full time in such 7 The 19 were : Herzing, Warfield, Carlash, Conrad Bauer, La Barge, Elmore, Crowder, Sanders, Jack Austin, Fred Reiske, Clarence Mayes, Thomas Gipson, Leisner, Al Leach, John Lakin, Gary McCarty, Bruce West, Carrol Hornbeck, and Fred Bailey All were members of the Boilermakers except Reiske who was a Machinist. Only one of the six against whom jail sentences were assessed was named in the testimony here. 8 Herzing was by now in the ascendancy and he with his satellite, Warfield, purported to speak for the members of Local 575. A. 0. SMITH CORPORATION, GRANITE CITY PLANT 353 service, and that the Company would pay them therefor "the straight hourly rate of the classification" they held, as hourly employees, on their respective job assign- ments at the time of such transfer .9 Treen said he told Costello that "based" on the Company's "experience, there was . need for this help," and "I agreed with Mr. Costello that we would do this at least for a limited time." 10 Treen further said that he told Costello, and it was agreed, that the Company would pay Herzing and Warfield on the basis of no more than 8 hours a day and that "we would not get into uncontrolled overtime periods"; however, overtime would be paid if their attendance at meetings called by the Company "ran into overtime." This oral arrangement thus entered into between Treen and Costello was put into effect in "late August or early September 1956." Since then the Company has paid Herzing and Warfield for all time spent in the plant between the hours of 8 a in. and 4:30 p.m." The hours of 8 a.m. to 4:30 p.m. conform to the hours of the office staff. The office workers punch a timecard on entering and leaving the plant, while all supervisory personnel "just go to work"; however, the guards keep what is known as an off-hours record or log, on which they enter the coming-in or going-out time of any of the supervisory personnel who come in or leave at off-hours. The hourly workers punch a timecard. If an hourly worker leaves the plant during working hours, he is required to present to the guard a gate pass issued by his foreman. If he leaves without presenting a gate pass, he is subject to discipline. If an hourly worker enters the plant at hours other than his regular shift, the guards enter his name, time of entrance, and reason given for coming into the plant at that time on the off-hours sheet." Herzing and Warfield were not required to report at the plant at any fixed time or to punch a timecard. They could enter at any hour they chose and leave when they saw fit, in view of which the guards were instructed to enter the time of their respec- tive entrance and time they, or either of them, left on the off-hours sheet or log. Nor were they required to exhibit a gate pass on leaving the plant. The time each spent in the plant on any day was computed from the entries on the off-hours sheets showing entering and leaving times, although it was not strictly a matter of off-hours as they had no specified entering or leaving time. It was claimed that their pay was computed on the basis of the number of hours each day that the off-hours records showed they spent in the plant between the hours of 8 a.m. and 4:30 p.m. Herzing said he was "not at the plant full time," that he spends much time at the union hall for which the Union pays him, and that he went into the plant "at 8:30, 9, or 9:30 a.m., or even later," and when he did not have anything to do there, he left but he "was subject to call," at the union hall, at any time." Warfield testified that when either he or Herzing was outside the plant on union business dur- ing the period of 8 a.m. to 4:30 p.m., the Union paid them for such time at the same hourly rate they were paid by the Company for time spent in the plant between those hours. By this arrangement they collected a full 8 hours per day pay at the same hourly rate they would have earned had they been working on tools at their regular jobs. In addition the Union paid each a monthly salary of $100. Both Herzing and Warfield were authorized to go into the plant at any time day or night, the guard on duty merely noting the time of entrance on the off-hours sheet 0 Warfield, a machine operator in production, was also an hourly employee 10 This oral agreement or arrangement made in August 1956, has remained continuously in effect since, or, that is, to the close of the hearing herein, except I assume that Herzing and Warfield were not paid by the Company for the time they spent in June and July 1957, when they led a group of suspended employees in the invasion and seizure of the plant, hereinafter dealt with. Herzing said he had "not worked on tools" or done "any plant work" since he entered upon this service pursuant to the 'Costello agreement ; nor has Warfield 11 Despite Treen's testimony that he had specified in the beginning that the Company would not pay overtime except in the rare instances where Herzing and/or Warfield might be in attendance at a meeting called by the Company which ran overtime, Warfield testified that at first they were paid overtime for a while but that the Company stopped it although he could not recall when the Company did so. He did say, "I don't think we were receiv- ing overtime as late as December, 1957." I mention this in connection with the claim made by the General Counsel that an analysis of Company's Exhibits Nos 17 and 18, earnings record of Herzing and Warfield, respectively, demonstrated that the Company paid them in excess of the straight hourly rate, limited to no more than 8 hours in any 1 day I have tried to make the computations the General Counsel suggests but do not come to any clear conclusion because due to the confusing explanations found in the testimony, there is too much I do not comprehend about these exhibits, and I do not consider the computations so essential or necessary to an understanding of the situation as to warrant tarrying further with them. 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with reason for entering stated as "union business." Admittedly the Company main- tained no sort of check on, or supervision of, the activities of Herzing and Warfield in the plant. Without being required to obtain permission from management they went about the plant and into the working areas during working hours, as and when, and at whatever hours, they saw fit in connection with union business, or union affairs, as they considered they were licensed to do under the Costello agreement as they, and apparently the Company also, construed and interpreted it. Treen said that when Herzing and Warfield took over under the Costello agreement, they were given "full responsibility" for their "own activities" in the plant. Herzing was not assigned an office, desk, or telephone for his exclusive use, but when in the plant could usually be found in the personnel area or through the personnel office.12 Having for some paragraphs dealt with the immediate aftermath of the strike which ended on July 16, 1956, with, shortly, Herzing and his clique ensconced as officials of the Union and Herzing and Warfield operating under the Costello agree- ment, whatever that really was, I now resume the continuity of events leading up to the happenings which gave rise to the charges herein. The 59 men who went into the plant became known as the insiders and the group who stayed out, particularly the rebellious group who gave allegiance to the Herzing leadership during the strike, were characterized as the outsiders. With the reopening of the plant a mean and spiteful campaign of persecution and harassment was launched in the plant and carried on within the plant premises, by the outsiders, or some of them, against the insiders. About this Treen said: "The group of 59 who worked during the strike were . threatened by other employees, these little cherry bombs were exploded behind their work stations, their lockers were set on fire, their tool boxes were filled with grease, oil, garbage and various things, and their tool handles were painted." Treen said that management instructed the supervisors to watch out for these inci- dents and that "we put pressure on the union officials to cooperate in stopping it . . we set up plant rules. We called them points of order." There is other testi- mony about these malevolent acts but I leave it with succinct testimony of Treen. It is noted that physical illness in the form of a nervous condition resulted in the case of some of these insiders who were subjected to these repeated and continued indignities. Although these acts continued for some time, a period of at least several months on a widespread scale, and thereafter sporadically,13 no one was ever detected participating in these things, or, if so, the Company claimed it was not reported to it. If Herzing and his clique, to whom Treen appealed, ever made any effort, which is not claimed, and is to be doubted, to ferret out the perpetrators, no result was apparent. During the remainder of 1956 there was little if any improvement in the morale and discipline in the plant despite the pretensions of Herzing and his man Warfield about producing order and tranquility. The multiplicity of testimony about the ac- tions and conduct of these two purported harbingers of industrial peace makes doubt- ful what were their real objectives, and the bona fides of their representations about the services they claimed the be performing and for which the Company was paying them. The "turmoils," as Herzing referred to disorders in the plant, continued with little abatement, with sporadic slowdowns and temporary work stoppages, and all the while the group among the outsiders engaged in harassing the insiders pursued their gleeful way unhampered. There were not in the remainder of 1956, after the June-July 1956 strike was brought to an end, any major strikes, but already deteriora- tion was setting in which was to result in an outright mutiny in late June 1957, openly led by none other than Warfield and backed by Herzing and his clique. As one example of how Herzing, during this period, disregarded the grievance procedures and encouraged rather than attempted to quiet disorder, Harold Gardner, still a union steward in December 1956, who differed with Herzing and other officers of the union about some of their interpretations of the contract, testified that there had been a number of work stoppages in his department. In December 1956, he "tried" to talk to Herzing about the situation but Herzing brushed him off with the direction to tell the employees in that department that if they couldn't get their foreman "straightened out" they "should sit down or go home and he would back us." As another example, Albert Ennis, an electrician who was at the time a member of the Boilermakers, testified, without contradiction, that in mid-1956 "a group of men" in the department where he worked "all stopped work . the company pulled their time cards" and "ordered them home . . . and they wouldn't go home"; whereupon, Herzing addressed the group "and told them they didn't have to go home, the Com- pany couldn't make them go home, to stay there and they would still get paid." 12 There was some testimony that on occasion , he,' or he and the union officials, used a small custodial supply room near the personnel area for conferences. 13 When, if they did entirely cease, does not appear. A. O. SMITH CORPORATION , GRANITE CITY PLANT 355• There were many of the Boilermakers , as will be later more fully developed, who desired to be rid of the Herzing leadership and the Herzing clique , but few who dared to openly and actively espouse or undertake any move to that end lest they incur Herzing's wrath with, as was widely believed was possible, economic reprisals being engineered by Herzing against them. The electricians, all maintenance employees,14 broke away from the Boilermakers in December 1956, and following a Board election the International Brotherhood of Electrical Workers, Local 309, AFL-CIO, herein referred to as 1BEW, was certified on December 13, 1956, as the exclusive bargaining representative for "all . . employees employed as Maintenance and Construction Electricians , and all Appren- tice Electricians." The unit numbered about 21 members . Whether it had its. beginning with this carving of the IBEW unit out of the Boilermakers, or how it came about, is not clear but Herzing harbored personal animosity against at least two of these electricians , Conrad Bauer and Albert Ennis, two of the Charging, Parties herein, and listed them among those he termed his "enemies." Contract negotiations with the IBEW were prolonged and in the course of the negotiations the IBEW went on strike and established a picket line. Treen said he had "meetings" with Local 575 (Boilermakers ) officials and they agreed they would cross the IBEW picket lines and continue working. It seems Herzing called a special meeting of the Boilermakers , apparently on the morning following the start of the IBEW picketing , at which the matter of crossing the IBEW picket lines was put to a vote and a large majority voted to cross , and the membership was ordered to do so. Treen testified that there were groups among the Boilermakers who wanted to respect the IBEW picket lines and that there was considerable disagreement among the members of Local 575 in this respect; however, there is no testimony that any of them refused to cross the picket lines and come into work.15 Treen further said that during the IBEW strike there "was considerable tension" among the Boiler- makers. After about 2 weeks of picketing, the IBEW strike was settled on March 30, 1957, by a contract effective as of that date. - The Carpenters Movement The Electricians having successfully gotten out of the Boilermakers and from under the Herzing regime, a movement sprang up among the machine repairmen in maintenance to form a separate unit with the Carpenters Union as their bargain- ing representative , as the jurisdiction of that union included the trade or craft of millwright . This movement started sometime in March and was still in progress as late as July or August 1957, but never reached fruition because of the invocation by the Boilermakers of a no-raiding agreement between the Boilermakers and Car- penters Internationals . However, in the several months this movement was going on such a large number of these maintenance people signed authorization cards for the Carpenters Union, that Herzing and his clique were beside themselves and re- sorted to restraint , coercion, threats of bodily and economic harm , and the expul- sion of three or four known adherents of the Carpenters movement from the Boiler- makers in an effort to thwart and stymie that movement.16 In several instances their sorties but served to give added impetus to the Carpenters movement. A num- ber of those participating in the movement found their names added to Herzing's growing list of people marked for reprisal , and referred to by Herzing as his enemies. Whether they could be called enemies or not, it is certain there were many opposed to the leadership of Herzing and his clique and wanted them ousted as officials of the Union. Thomas Gipson , a Charging Party herein , said he was the "one who started" the Carpenters movement. He signed a Carpenters card in March 1957, and thereafter solicited others, before and after shift time , to go to the Carpenters Hall and sign authorization cards. After the Carpenters movement got under way, Kenneth Lane, 14 There was widespread dissatisfaction with Herzing and his leadership and his clique among the maintenance workers, where Herzing had formerly worked ; however , a goodly number were also to be found in production "At footnote 7 of the Intermediate Report in Case No. 14-CB-458 (not published in NLRB volumes ), Local 575, Respondent , and Magnus Leisner, Charging Party, it is noted that Leisner did not cross the Electricians ' picket line until the third day . Lessner is prominently identified with some subsequent events herein 1e See findings set out in Intermediate Report of Trial Examiner Reyman in Local 575 and Willard Iferzing, president, wherein Magnus Leisner and William R Hogan are Charging Parties , Cases Nos 14-CB-458 and 14-CB-463. No exceptions to the Inter- mediate Report were filed and same was'adopted by'the Board. 614913-62-vol 132-24 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a Boilermakers official, and one of Herzing's henchmen, came to Gipson one after- noon, (second shift-3 p.m. to midnight) just after he had reported for work, and asked him if he knew "anything about this Carpenters deal." Gipson told Lane, "I might and again I might not," and Lane said, "I hope you haven't got anything to do with it because some people are going to get fired over that deal." Gipson, called as a witness by the General Counsel, was asked on cross-examination why he wanted to get the Carpenters union in the plant. In answer, Gipson said, "We felt that the machine repairmen were not getting any representation from the [Boiler- makers] Union . . . so we figured we had better get another union for machine repair men," and that they (the machine repairmen) felt the Company "was col- laborating with the Union, because if the Union wanted a man fired for whatever reason, the Company went along with the Union." On the night of April 4, 1957, when Leisner, a third shift man (11 p.m. to 7:30 a.m.,) reported for work, Mayes, one of the general officers of Local 575, and chief steward on the third shift, warned him that Herzing had information that he (Leis- ner) was one of those who were trying to get another union in the plant, and that he had that very morning attended a meeting of that group. The next morning, April 5, shortly after 7:30, the end of the shift, as Leisner was, changing clothes at his locker, he was approached by Herzing, accompanied by Raymond Ropac, one of the union officials and a Herzing henchman. Herzing berated Leisner for work- ing for another union, and a heated argument followed culminating in Herzing grabbing Leisner, shoving him against the lockers, and choking him with both hands until Ropac remonstrated with Herzing. As Herzing and Ropac left the scene of battle, Herzing told Leisner that he (Herzing) was going to have him discharged. It is noted that here Herzing was in the plant at or before 7:30 a.m., and that he was not engaged either in handling any grievances or quelling any "turmoils." On the same day this assault occurred (April 5),,Leisner reported it to Anthony P. Trelc, personnel supervisor,17 but no disciplinary action of any kind was ever taken against Herzing.is Leisner was discharged on July 22, 1957. On September 18, 1957, he filed NLRB charges against the Company alleging discriminatory discharge (Case No. 14-CA-1697) but the charges were ultimately dismissed by the Regional Director. On the night of April 24-25, 1957, Herzing, Ropac, Mayes, and Corbin (a third shift steward) had a busy night. With Herzing as the principal spokesman they, as a group, roamed the plant interrogating "each and every man" on the third main- tenance shift concerning his interest in the Carpenters Union. At 4 a.m. on the morning of April 25 they were still on that job. At that hour they approached Arthur R. Miller (a Charging Party herein) at his work station and Herzing told Miller that he had information that he (Miller) was soliciting members of the Boilermakers to sign Carpenters cards, and when Miller denied the accusation Her- zing informed him that he (Herzing) had already pulled his (Miller's) membership card in Local 575, and that might mean his jab. About an hour later (5 a.m.), Ropac served Miller with written union charges that on two different occasions he had solicited one Dragovich "to sign up for another union." The charges were signed by Herzing, Mayes, and Corbin. Miller was later tried on these charges and expelled from the Union. The Herzing investigating group next after Miller (at 4 a.m.) turned their attention to Robert Bowman who was working near Miller. Her- zmg asked Bowman if he had signed a Carpenters card. Bowman said he had not and, after Herzing complimented Bowman as being "a good boy," the group moved on. At 4:30 that morning (April 25) Herzing and his retinue reached Robert Hicks who told Herzing he had not signed a Carpenters card, whereupon Herzing told Hicks that anyone who did so would be expelled from the Boilermakers Union, and that might cost him his job. Shortly after this date Hicks was 1 of a group of about 10 maintenance machine repairmen who went together to the Carpenters Hall and signed authorization cards. William R. Hogan, a Charging Party herein, a second shift (3 p.m. to midnight) maintenance machine repairman, who had signed a Carpenters authorization card about April 15, 1957,19 was approached while he was at work the night of April 24-25, by Herzing, attended by Ropac, Mayes, and Corbin. Hogan was working 14 Trelc was under and an assistant to Treen Trelc figures prominently in this case '- On the same day the assault occurred, Trelc interviewed Herzing and Ropac and made notes of what they told him about it Both denied that Herzing used force. Robert Hicks, who witnessed the assault and heard Herzing tell Lessner, "I'll have your job for this," was not interviewed 1e At the time Hogan signed the authorization card, practically the whole maintenance second shift also signed cards. A. O. SMITH CORPORATION, GRANITE CITY PLANT 357 at the time with one Ray. Herzing informed Hogan and Ray that he had been "instructed by the Boilermakers International to ask them if they had been ap- proached by anyone to go into another union." Without further conversation Hogan told Herzmg that "we hadn't been approached." About 11:30 p.m. the night of April 24-25, Mayes approached Lee Willmore, a Charging Party herein, in the lockerroom and asked him if he had seen any Car- penters cards in the plant. When Willmore said he had not, Mayes said that anyone who had anything to do with that movement would "get his head chopped off." Willmore asked Mayes if he (Mayes) was threatening him, and Mayes told Willmore he could take it any way he liked. Calvin Cassell, a third shift machine repairman, a Charging Party herein, was approached on the night of April 24-25, by Herzmg, attended by Mayes and Corbin, and interrogated about the Carpenters movement. Herzing told Cassell that anyone signing a Carpenters card would have his Boiler- makers membership card pulled, and added that "he did not remember" Cissell's "financial status," which reference Cissell understood to mean, as it was intended to convey, that Herzing did not know whether Cissell's financial situation was such he could afford the risk of losing his job there. About a week after that, Cissell went to the Carpenters Hall and signed a card. While Leisner,20 a third shift man (11 p.m. to 7:30 a.m.), was at his locker, preparatory to going to work the night of April 24, he was approached by Herzing, Mayes, Ropac, and Corbin. Herzang told Leisner he wanted to talk to him. Leisner refused, whereupon, Herzing sought out Leisner's foreman and requested him to ask Leisner to talk to him. The fore- man complied with Herzing's request, but Leisner, confronted with this array of Herzing and his henchmen, told the foreman he would not talk with Herzing unless he could have a witness. No arrangement for such a witness was made so Leisner persisted in his refusal to talk with Herzing. Later that same night Ropac handed Leisner a written notice that union charges had been preferred against him for insulting the president of the Union (Herzing). Leisner was subsequently brought to trial and expelled from the Union.21 This roaming the plant throughout the night by Herzing and his henchmen, com- bating the Carpenters movement, was necessarily known and acquiesced in by man- agement. It would be incredible to say that the foremen had no knowledge of it. Herzing was there and moving about among the workers at will under the unlimited and unrestricted authority or privilege purportedly given him by the Company under the Costello agreement, and the foremen had no authority to interfere with his activi- ties for which he alone was responsible. It would be equally incredible to say that Ropac, Mayes, and Corbin could leave their work stations and roam the plant back- ing up and attending Herzing, as they did, without the knowledge, and permission, or at least acquiescence, of the foremen. Permitting this posse to roam the plant, ap- proaching all the members of the shifts working that night in maintenance at their work stations, and interrogating, threatening, and arguing with them about going over to another union is one example of the kind of unneutral action on the part of the Company which led to a belief and conviction in the minds of an ever-increasing number of the members of Local 575, that the Company was collaborating with, and lending aid and assistance to Herzing and his clique in combatting the continuing ef- forts of the dissidents to either oust the Herzing group from the union offices, or get away from the Herzang regime by bringing another union into the plant. This history has not yet been brought down to and within the 6-month period prior to the filing of first charges herein, but the relationship between the Company and the Union, as personified by Herzing and his group, which has .been established up to this point, did not suddenly evaporate or terminate as and when the 6-month bound- ary line was reached, or at all, and this prior history tends to cast light upon the ac- tions of the Company and the question of its neutrality during the 6-month period involved. Resuming the history of the Carpenters movement, it will be remembered that it was about 4 a in. on April 25 that Robert Bowman in reply to Herzing's interrogation told Herzing and his men that he (Bowman) had not signed a Carpenters card, and was told he was "a good boy." However, in May, Mayes and Corbin sought out Bowman and quizzed him further about the Carpenters, and Mayes told Bowman that they now had proof that he had signed a card, and Mayes grabbed Bowman's collar with his left hand and drew back his right fist, at which point Corbin inter- vened and admonished Mayes that "This is not the place for that." After this experi- 21 Leisner was assaulted by Herzing at this same place on the morning of April 5, see supra. 2' Bailey was also expelled from the Boilermakers on a charge of supporting the Carpenters Union 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ence Bowman requested and signed a Carpenters card . About June 4, Herzing, Ropac, and Kenneth Lane , another of Herzing's official family , approached Hogan at his work station , one of the group held up a card and told Hogan it was a photo- static copy of his ( Hogan's) Carpenters card , but refused to allow Hogan to see it. Lane started to talk to Hogan , but Hogan interrupted Lane and told him and the others to get away and stay away from him, that he didn't want to talk to them. As they left Herzing said, "Hogan , I am not afraid of your big shoulders , I'll get your job." The facts set out, supra, beginning with events of the night of April 4-5, 1957, and to this point are largely gleaned from the findings of fact made by Trial Examiner Reyman in his Intermediate Report in the cases against Local 575 and its agent, Willard Herzing, president, Cases Nos. 14-CB-458 and 463 , wherein Leisner and Hogan, respectively, were Charging Parties. No exceptions to the Intermediate. Report were filed and it was adopted by the Board . It was announced, by counsel for the Union , at the beginning of the hearing that Respondents in that case, the union and Herzing, had complied with the order ; however, as the evidence concern- ing the conduct of Herzing and his group , even after the issuance of this order, unfolded, I came to the conclusion that counsel's statement in reference to com- pliance must have meant no more than that the notices provided for had been posted and not that the union , personified by Herzing and his group , had ceased and desisted, as was ordered, from restraint and coercion , or attempting to do so, of Smith em- ployees in the exercise of their Section 7 rights. At the beginning of the Carpenters movement , Elroy Paschedag , a Charging Party here, was a chief steward for the Boilermakers , but Herzing early accused Paschedag 22 of working for the Carpenters Union and terminated him as a steward. Paschedag throughout retained a high rating on Herzing's list of nominees for re- prisal ; some others so listed will be named in due course. In June 1957 , William T. Randolph was a foreman on the second shift in mainte- nance. William R. Hogan, a maintenance machine repairman , heretofore mentioned, worked under Randolph 23 One afternoon in June 1957 , as Foreman Randolph and General Foreman Warren, were leaving the maintenance area "to go out to be briefed," just before the start of the second shift, Randolph "noticed Herzing and four or five people gathered around" Hogan. When Randolph and Warren returned from the briefing, Hogan came to them and reported that "Herzing and his henchmen" had been "threatening him with the loss of his job and bodily harm." Hogan told Randolph and Warren that all he wanted to do "was to come out here and work and be left alone," that he "didn't bother anybody and didn 't want anybody bothering him." Randolph went into the office and called a Mr. Burton , at that time superin- tendent of maintenance , over the plant telephone , and told him of Hogan's com- plaint, and at the same time Randolph "requested that Herzing not be permitted" to come into the work area and interrupt the men at their work . Burton said he would have Treen call Randolph immediately and within a few minutes Treen did so and told Randolph "to get hold of" Herzing and have Herzing call him. Pursuant to Treen's request, Randolph toured the maintenance area looking for Herzing but did not see him, then hearing loud voices emanating from the latrine, adjacent to the maintenance enclosure , Randolph went there and found Herzing "and several other fellows" gathered around Lee Willmore, another Charging Party herein. Herzing and the others were belaboring Willmore in "loud and angry voices." Randolph told Herzing that Treen wanted him to call immediately and Herzing left. Randolph had several conversations with Byrd, the then assistant superintendent of maintenance, about Herzing's conduct that afternoon and on other occasions, and Byrd said he was going to see Treen and see if Herzing could not be kept off the working floor. So far as appears here, no investigation was made, and no disciplinary action of any kind was taken against Herzing, nor was his freedom of movement thereafter about the plant pursuing his purposes, whatever they were , including his opposition to the Carpenters Union , in any way curtailed . Randolph testified, and his testimony is supported by numerous incidents and circumstances in the evidence, and is credited, that several times thereafter he saw Herzing going through the plant during work hours "accompanied by three or four of his henchmen and they would congregate around people " who were at work, and on a few occasions Herzing would go through the plant alone and stop and talk "to small groups or individuals" and "keep them from their work." Shortly after this Hogan incident Randolph received a similar complaint against Herzing from one of the men in maintenance working under him at the time, Harold 22 Paschedag was considered by Herzing as one of the "pushers" of the Carpenters' - movement 23 Randolph and Hogan are Charging Parties herein. A. 0. SMITH CORPORATION, GRANITE CITY PLANT 359 Gardner. It will be recalled that while at this time Gardner was still a union steward (he was later removed), he was already often in disagreement with the Herzing policies and actions. On the occasion giving rise to his complaint, Gardner was on his way from his regular work area to the tool crib for some parts. He met Herzing in the aisle. "Just previous to this time . a man had been fired," concerning which there seemed to be some question in the minds of other employees. Gardner asked Herzing, "What can we do about the Company firing these men," whereupon Herzing flew into a rage and commenced "cursing and swearing at" Gardner and threatened "to give" him "a physical whipping," and told him, "If you and that buddy of yours 24 don't keep your mouths shut, you will be taken care of." Asked why Herzing reacted in such a violent manner, Gardner said, in substance, that "from my past experience with the man, that is his nature" any time anyone questions his way of doing things, it enrages him. Foreman Randolph saw Herzing in the maintenance work area on this occasion but did not hear his remarks to Gardner. That same afternoon Gardner complained to his foreman, Randolph, that Herzing had there in the work area threatened "to do him bodily harm." Foreman Randolph immediately reported Gardner's complaint to Byrd, who, as mentioned, supra, was at that time assistant superintendent of maintenance; General Maintenance Foreman Odehnal was with Foreman Randolph when he made this report to Byrd. On the next day Byrd asked Randolph to reduce the matter to writing which Randolph did. This written statement, which Randolph delivered to Byrd, recited Gardner's com- plaint, and contained a request by Randolph that Herzing "and others of his group not be permitted" to come on the second shift during work hours, and molest, threaten, and interfere with employees at their work. No action of any kind was taken by management against Herzing, nor investigation made, as a result of Randolph's report and request although Byrd passed it on to Treen and Trelc. General Maintenance Foreman Odehnal likewise complained to Byrd about Herzing and his attendants coming into the maintenance work area and contacting and inter- fering with the men while at their work. Byrd asked Odehnal to put his complaint in writing. Odehnal did so and included therein a request similar to that previously made by Randolph about not permitting Herzing "and others" with him coming into the work area and talking to and interfering with men at their work. The next day, after Odehnal's written report was given to Byrd, Herzing ap- proached Foremen Randolph and Leach, in the plant, as they were standing to- gether, and said, "Jimmy Odehnal got old Herzing thrown out of the plant . last night but old Herzing will win over all . Odehnal will roll like a head of cabbage." This is the only intimation in the record anywhere that management may have taken any notice at all of the complaints about Herzing and his henchmen roaming the plant principally at night molesting the employees. If Herzing were sent home that one night, he was back in action the very next night and apparently thereafter pursued his way unmolested so far as top management was concerned. The higher management echelons, Treen, Trelc, and others in that categoiy, evidently con- sidered such activities, some of which have been detailed, on the part of Herzing and his group of union officials, as a prerogative deriving from the Costello agree- ment, as that agreement had in practice been interpreted alike by Herzing and the Company, and therefore not subject to restraint, curtailment, or supervision by the Company. If, as Herzing told Foremen Randolph and Leach, he had been excluded temporarily from the plant that one night, or part of the night, it must have been the act of some supervisor of lesser authority in such matters than Treen, Trelc, or other top officials, who was not aware that Herzing had been granted, and enjoyed, unrestrained and unsupervised freedom of action in such matters. These foremen, and even Byrd, who had dared to object to Herzing and his group going about the plant 25 interviewing, talking in groups with, and interrupting and interfering with the men at work, incurred Herzing's animosity and were marked by him for re- prisal if he could engineer it; more about this later. Herzing became obsessed of the idea that Foreman Randolph was fostering, pro- moting, and supporting the Carpenters Union. Apparently his only basis for this belief which became more intensified as time went by, with increasing personal animosity toward Randolph, was his assertion that most of the principal "pushers" of 24 The reference being to Clarence Pyle, who worked with Gardner. Herzing had appar- ently been informed that Gardner and Pyle had made remarks which he considered dis- loyal to him. as This seems to have been more pronounced during the night hours when the second and third maintenance shifts were working. The second shift, 3 p.m. to midnight ; the third shift, 11 pm. to 7:30 a.m. 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Carpenters movement worked under Foreman Randolph 26 In July 1957, Herzing went to both Treen and Burton, then superintendent of maintenance, and complained to each that Foreman Randolph "was leading the Carpenters movement in the plant." In addition, Herzing told Treen that Randolph, as foreman, was "protecting" the men in maintenance who were involved in the Carpenters' movement. Burton first called Randolph on the carpet and when Randolph told Burton there was no truth to the accusation, Burton credited Randolph and told him "to go back out in the plant and keep your nose clean." Herzing became so insistent that about 2 weeks later Treen talked to Burton about Herzing's charges against Foreman Randolph. Burton said he told Treen and Trelc, apparently in a conference about the matter, that he was satisfied with what Randolph had told him, however, it was decided that Treen and Trelc would talk to Randolph, and he (Randolph) was summoned to Treen's office and there interrogated by Treen and Trelc. Randolph said, about this conference, that Treen "seemed to be satisfied at the time with what I told him." Just when he did so it not clear but Treen made an independent investigation of Herzing's "accu- sation" against Randolph and "found no basis for pursuing it." Gardner, heretofore mentioned, who was elected to membership on the union wage negotiating committee, which met with representatives of management in June 1957 and thereafter, pursuant to a wage reopening provision of the contract, testified, without contradiction, concerning Herzing's conduct at one of these meetings in July 1957 The negotiating committee was composed of Herzing, Warfield, Gardner, and three others, for Local 575, and Dingman (a Smith vice president), Treen, and Hynes (the then plant manager) representing the Company. At this meeting Herzing "got off the track," away from the matters at issue, and "accused (Foreman) Randolph and his (Randolph's) brother-in-law (Willmore) of causing trouble among the Boilermakers and demanded" that Randolph and Willmore "both be fired." Herzing had photostats of eight Carpenters' cards which he showed to the members of the committee. On this occasion Herzing mentioned Bailey and Miller (both Charging Parties) as also backing the Carpenters Union. Herzing's remarks were directed to Dingman, but Dingman made no comment nor did any other management representative. Twice in June 1957 Herzing threatened to get Bailey fired. On the first occasion Bailey and Lane, a union official, got into an argument, apparently on the plant floor, concerning something Lane said Marty Pereria had told him about Bailey supporting the Carpenters Union. They (Bailey and Lane) adjourned their argu- ment to the lockerroom; arriving there they found Herzing and some other union officials. Herzing immediately intervened in the Bailey-Lane argument and told Bailey, "When the International pulls your card, you are as good as gone . . . I am going to get your job." The second such threat occurred on the work floor or in the work area of the plant while Bailey was a work. Bailey and Homer Mitchell, who was working with him at the time, had just finished "a welding job on a leak and moved back to see if it leaked any other place," when Herzing walked up and told Bailey, in the presence of Mitchell, that he was "going to get" Bailey's "job and that the (Boilermakers) International had millions of dollars with which to fight the Carpenters." Herzing was unremitting in his efforts to get rid of the ever-increasing number of employees whom he termed his enemies. In June 1957, First Shift Foreman Walter McIntosh was riding to and from work with First Shift General Foreman Carl Lochiner. One afternoon during that month as McIntosh and Lochiner were leaving the plant, at the end of the first shift, to go to the Lochiner car on the plant parking, lot, Herzing was standing just outside the door. Herzing told McIntosh and Lochiner, he wanted to talk to them, and the three walked over and stood by one of the Company's parked cars. Herzing told McIntosh and Lochiner, "You know I have this place sewed up . . . I've got it tied up like a band box . . . I am going to try to take care of you home town foremen . I have some enemies working for you guys . . . I want you to fire them . . I don't care what you fire them for but I want you to get rid of them .. . I'll be up in the front office raising hell,27 but don't pay any attention to it, they will be fired anyway." Neither McIntosh nor 26 Among those Herzing had by this time denounced as being the principal promoters of the Carpenters' movement were Foreman Randolph , Hogan, Paschedag, Willmore, Bailey, and Gipson , all working in maintenance , and all Charging Parties herein All these men were high on Herzing's reprisal list, and all were listed as men Ilerzing proposed and most wanted to get rid of Apparently Randolph's name led all the rest , with Hogan a close second, and Paschedag and Willmore certainly among the topmost 27 That is, pretending that as president of the Union , he was opposing the discharges. A. O. SMITH CORPORATION, GRANITE CITY PLANT 361 Lochiner manifested the least interest in the proposition, and cut Herzing off before be named the proposed victims of his animosity; McIntosh told Herzing he did not like the idea, and Lochiner told him he did not want to hear "any more about it," and they walked away from Herzing. This testimony stands undenied. The Shutdown on June 27, 1957 Treen said that following the settlement of the IBEW strike on March 30, 1957, there were continuing "altercations" in the plant among the Boilermakers during April, May, and June, 1957, in the form of "discussions and arguments." These seemed to have been intraunion "altercations," apparently involving the attempt by Herzing and his group to combat the efforts of the maintenance group to establish the Carpenters Union in maintenance. In June 1957, the Boilermakers contract of May 6, 1956, was, pursuant to the contract, "opened for wage negotiations . . . although closed on all other matters." 28 While these negotiations were going on, plant discipline among the Boilermakers, which had been steadily declining since the settlement of the June-July 1956 strike, reached its lowest ebb. It is not directly stated just what prompted the conduct of those Boilermakers who participated in the ensuing series of events, which were, in some instances, initiated, and certainly in practically all instances encouraged and spurred on, by Herzing, War-field, other union officials, and some of the stewards. These uprisings coming at the time they did sug- gest that they were deliberately staged in an effort to apply pressure on the Com- pany to grant the economic demands advanced by the Union in the current negotia- tions. Employees in both maintenance and production were involved The testimony is that workers commenced "leaving their jobs, walking off from their place of work" and "all sorts of disorders and acts of sabotage" occurred; "em- ployees would leave the plant" or "go from department to department . with- out permission . frequently foremen could not find enough employees to con- tinue production" and "employees would sit down at their machines and read maga- zines and papers and refuse to work . . . groups would refuse to follow their fore- men's instructions . would slow down their machines" and "leave their depart- ments . union officials and stewards were members of these groups and partici- pated in their actions." At various times during the week preceding June 27, 1957, the Company made numerous suspensions of both individuals and whole groups, until, by the evening of June 26, "three to five 'hundred employees" were under suspension. The em- ployees put under suspension were told to stay out of the plant "for a set period of time," but the union officials urged them to disregard the Company's order and go into the plant. Came Thursday, June 27, 1957, payday, the Company set up a table at the main gate where the employees under suspension could be paid without entering the plant. When those under suspension gathered at the gate to collect their pay, Warfield took charge of the situation and urged the suspended employees to forcibly invade the plant, and led them as they forced their way into and seized the plant 29 "In a matter of minutes" after Warfield and his followers forcibly seized the plant, the Company shut the plant down, posted notices directed to all employees advising that the plant would be kept closed until such time as "order and reasonable dis- cipline is restored," and that employees would "be notified when to return to work." The plant gates were locked and no attempt was made to operate. On the same date, June 27, 1957, the Company sent a letter to Local 575, attention Herzing, president, declaring the Boilermakers and their officers responsible for the condi- tions necessitating the closing of the plant and that the Company would hold the Union responsible for any damages resulting from the closing. It is noted no action for damages was ever initiated by the Company. It will be remembered that at the time the plant was closed (on June 27, 1957) the wage negotiating committee was still carrying on wage negotiations. With the closing of the plant and at the insistence of the Union, the matter of wages was for the time being put aside, and the committee concentrated upon the matter of reopen- ing the plant, which finally resulted in an agreement on the conditions upon which the Company would reopen, and same was reduced to writing, with the reservation re I have, supra, given the composition of the wage negotiating committee, Dingman, a Smith vice president, Treen, and the plant manager for the Company, and Herzing, Warfield, Gardner, and three other members of Local 575 for the Union 29 It seems that Warfield was particularly adept at this kind of action Recall the June-July 1956 strike It would be the extreme of naivete to think that Warfield acted solely on his own ; certainly if not at Herzing's express direction, Warfield's every act had Herzing's sanction , approval, and blessing. .362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that it was not to be executed until it was first ratified by the union membership. This was done, whereupon, the members of the joint committee signed and executed the agreement, and,'as per the terms thereof, the plant reopened and resumed opera- tions on July 10, 1957. The agreement (General Counsel's Exhibit No. 26), -couched largely in generalities, introduced no new restrictions on, or conditions of, employment. It merely provided that all parties, employees, the Union, and management will obey the terms of the May 6, 1956, contract; that each employee will "carry out" the instructions of the supervisors, and cooperate in bringing about an "effective and efficient operation" of the plant; that employees and representa- tives of the Union and of management "will refrain from disputes, abusive attitudes and language"; that an employee, who is not a steward or chief steward desiring to leave his work station, other than when on authorized relief, "shall follow the pro- cedure established by the Company"; and, that stewards and chief stewards leaving their work "shall comply with the applicable provisions of the contract." With the reopening of the plant on July 10, 1957, Herzing and Warfield were re- instated by the Company to the former positions which they had held under the Costello agreement together with all the rights, privileges, and emoluments which they had acquired, exercised, and enjoyed under the construction and application given in practice to that arrangement by them and the Company, and have since -continued in such capacity, that is, to the close of this hearing. During the shutdown, June 27 to July 10, 1957, the Company convened one or more meetings of its general foremen and foremen in St. Louis, Missouri, and inter alia, briefed them on the negotiations then in progress in the joint wage negotiating ,committee concerning the reopening of the plant. At one of these meetings, in the early part of July 1957, when the foremen and general foremen were asked to present problems they had encountered, "one problem" which "several" of these supervisors mentioned was Herzing's position in the plant, and Foreman McIntosh asked why Herzing was being carried "on the seniority and overtime lists" in maintenance de- partment 1056, and "yet he did no work there." At this point, Treen "got up and said, `This man [Herzing] is assigned to personnel.' " This testimony is undenied. In the latter part of July or early part of August 1957, General Maintenance Fore- men Mathews and Odehnal, and Foremen Randolph and Wassman "just after lunch," but while still on their lunch period, were seated together in the "waiting" or "re- ception" room of the main office when Herzing approached the group, and said, "You four fellows tried to put me back to work." Randolph told Herzing that, "No one in this group has tried to put you back to work, or made any statement that you should go back to work," whereupon, Herzing said, "I know everything that went on . . at that meeting in St. Louis . and you fellows tried to put me back to work." The foregoing testimony of Randolph is undenied, and was in substance ,corroborated by Mathews and Odehnal; Wassman did not testify. Henry Bathon, called as a witness by the General Counsel, worked as a driver of a floor truck on the second shift, in production Bathon testified that "in either August or September" 1957, during working hours, and while he was about his work, he saw and heard Herzing and employee Emil Hessel, a second shift machine operator in production, engaged "in an argument" at Hessel's machine, and that they were "shouting and shoving one another around, pushing one another back and forth, and the foreman, Charlie Halbe, went between them, and separated them," whereupon, Herzing "invited" Hessell "to come outside." Bathon said he was at the time about 25 feet away from Hessel's machine, and that the only other persons near Hessel and Herzing were working at a press, which was in operation, some 20 to 30 feet from Hessel's machine. The Respondent Union called Hessel as a witness Hessel told about a grievance or complaint he had in January 1957, concerning his transfer from one production department to another and when later the Company decided to return him to his former department he protested and claimed he had a right under to contract to re- main in the department to which he had been transferred if he elected to do so. He said that in January 1957, he first complained orally to the shop steward and then orally to the chief steward but got no satisfactory explanation from either, and he then, still in January 1957, talked with Herzing about it, at his machine, and Herzing told him that he (Herzing) had already taken up that proposition with the Company, and the Company had agreed to go along with the Union's interpretation of the con- tract, that is, that under such circumstances, the employee had the option of remain- ing in the department to which he had been transferred and retaining his seniority there, or returning to his original department. Hessel said that this conversation in January 1957, was the only "conversation or discussion" he had with Herzing in the year 1957. As Hessel related it, although, on that one occasion, Herzing advised him that the Company had fully acquiesced in his (Hessel's) position, and he was satisfied with Herzing's explanation, nonetheless, he said he was "disgusted" and A. 0. SMITH CORPORATION, GRANITE CITY PLANT 363 expressed his "feeling about the matter" to Herzing, but their talk was "not heated." In response to questions by an attorney for the Union as to whether he did this or that, Hessel denied that "in August or September, 1957," he and Herzing engaged in a scuffle or pushed each other around, or that Halbe came in between them, or that Herzing invited him outside. It is obvious that, as Hessel tells it, there is not the slightest resemblance between the one conversation he said he had at his machine with Herzing, in January 1957, and the incident related by Bathon. The Company called Foreman Halbe as a witness. As best in point of time that Halbe could recall the incident, which it is quite evident it the one referred to by Bathon, was that it occurred on a "warm day" in the "summer or fall" of 1957. Halbe said at 4 p.m. that day, he was standing at his desk, which is approximately in the center of the department, when "the line stopped." He went to investigate, and found that "the cause of the stoppage was that Hessel's machine had stopped . .. when one machine is stopped, everything beyond that is stopped." As he ap- proached Hessel's machine he saw Herzing standing there talking with Hessel and the two men were engaged in what appeared to be a "heated argument," and there was "finger shaking" going on. Halbe became confused in his recollection as to whether this finger shaking was on the part of one or both, or if only one, which one was shaking his finger in the other's face. Halbe says that when he got to Hessel's machine he ordered Herzing to leave the department and Hessel "to get back to his job." Both men complied and the section of the production line which had been stopped resumed operation. Halbe said his department is "very noisy," and the only part of the conversation he understood was something said by Hessel, just as he reached Hessel's machine, to the effect, "How come you [Herzing] aren't on the second shift more," and that if Herzing invited Hessel outside he (Halbe) "didn't hear it." Hessel's testimony was a patent attempt for some reason, at this late date, to serve Herzing and evade the incident to which the testimony of Bathon and Halbe related, and I do not give it any consideration. On the other hand I consider Bathon a disinterested and credible witness and accept his testimony, which is to a considerable extent corroborated by that of Halbe, as being a substantially accurate account of what occurred. There is no explanation of Herzing's presence at Hes- sel's machine. Certainly it was not in connection with a grievance. No foreman was present nor had any been called in as was the proper procedure in the adjust- ment of a grievance on the floor; further, Hessel said the only grievance he had was that in January 1957, which had long since been cleared up. That these men were engaged in a heated argument and were pushing and shoving each other, and that Herzing invited Hessel to go outside, a typical Herzing gesture, indicates Herzing was there on some personal or union matter about which these two men were at the time at odds. Although, according to Halbe, the production line was stopped, while Herzing and Hessel engaged in finger shaking and appeared to be engaged in a heated argument, Foreman Halbe took no disciplinary action of any kind, not even a reprimand or warning, against either man. In that respect Herzing enjoyed immunity, as Halbe must have been aware. Another incident illustrating the freedom enjoyed by Herzing to go about the plant at will accosting and threatening employees, was related by Albert Ennis, a Charging Party in the CA case herein, a member at the time of the IBEW, and formerly a member of the Boilermakers who, see supra, had long since incurred Herzing's enmity. Bill Staten, a chief steward for the Boilermakers, had represented to Herzing that another member, Bob Crews, had called him (Staten) "a s.o.b." On this occasion, sometime in June 1957,30 Herzing "and a couple of his friends," whom he had brought with him, and Staten had sought out Crews, at some point in the plant, not specified, and were questioning him about Staten's charge, which Crews denied, when Staten "called" Ennis "over to the argument to act as a wit- ness" that Crews had called him (Staten) "a s.o.b.," but Ennis said he had not heard it. What then ensued, as Ennis related it, follows: "Herzing said, I must have heard it, and Mr. Staten said, you did too, you were right there, and I still said I didn't, and Mr. Herzing got rather belligerent and arrogant, and informed me that he would like to take me out to the parking lot. I told him I would meet him any- time outside the Company property, but not in the plant. He [Herzing] then said, that's all right, you won't be here very much damn longer anyway." This testimony of Ennis stands undenied. In October 1957, Walter McIntosh was a foreman on the third shift in main- tenance (11 p.m. to 7:30 a.m.).31 Mayes, one of the general officials of the Union, 11 About a month before the changeover made in 1957 to the 1958 model commenced. 11 McIntosh was a foreman continuously from September 1954 (the plant commenced operation in June 1954) to November 4, 1957, on which date he was discharged .364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and also a chief steward on the third shift,32 worked under McIntosh. "Prior to the middle of October" 1957, McIntosh observed Mayes "coming to work late" on several occasions , at least three, and on two of these occasions he gave Mayes a verbal warning. "About the middle of October" 1957, when Mayes again came to 'work late, McIntosh gave hun a written warning, and that set off the fireworks, so to speak. Mayes did not deny coming late to work but insisted to McIntosh that he was a union official and a chief steward and es such had a right to take time off from his regular work "to talk to his men," and that on the occasions he was late he had been stopped and delayed as he was coming from the lockerroom to his work station by second shift men who wanted to take up some matter with him as a chief steward. McIntosh told Mayes that anyhow he (Mayes) had no business serving as steward to second shift men as they had their own stewards. McIntosh said he never saw or heard of any written grievance being filed by Mayes on account of the written warning, and the testimony here about this matter ,does not disclose that Mayes filed any written grievance, or for that matter pursued the regular grievance procedure at any step. However, within "a few days" after he gave Mayes the written warning McIntosh was summoned to Treen 's office and questioned by Treen concerning this written warning to Mayes. McIntosh asked permission to have General Maintenance Foreman Mathews present which was granted. In response to Treen's interrogation, McIntosh explained why he had given Mayes the written warning, whereupon, Treen said, "Well, go on and forget -about it." Written warnings were not unusual. If an employee felt aggrieved he was rele- gated to the prescribed grievance procedure-not so here. In this instance the highest personnel official in the plant took cognizance of this written warning and -called upon the foreman to appear before him and justify it. While after hearing McIntosh's explanation, Treen felt that McIntosh had acted properly, and in the -presence of General Maintenance Foreman Mathews, told McIntosh to "forgot about it," Herzing and Mayes were not placated and refused to forget about it, and apparently Treen again yielded. Much to McIntosh's surprise about a week later he was summoned to an inquisition, in Trelc's office, about the matter he had been told, by the highest authority, to forget Present were Grant, a vice president of the Boilermakers International, Herzing, Mayes, Warfield, Lane (all general officers of Local 575), and Corbin, a third shift steward, and Treen, General Maintenance Foreman Mathews, and Superintendent of Maintenance Burton, and, of course, McIntosh. This was not a third step grievance meeting. The third step committee was not even there, and no grievance had been filed. It was some kind of special con- vocation. Whatever it was, McIntosh found himself from the beginning occupying -the defendant's seat. Treen presided and opened the meeting by telling Mayes he could "make his charges" against McIntosh "verbally." Mayes then charged that McIntosh "had been hounding" and "riding" both Corbin and him. Mayes did not deny coming to work late on several occasions but maintained, as he had told McIntosh, that he had been delayed by members of the Union stopping him to talk to him about complaints and union matters, and that he, as a union official and also a chief steward, had a right to take off from his job any time he saw fit to talk with his men. He did not claim that at such times he had requested or received from his foreman a written permit to be off his job for the purpose of adjusting or trying to settle a grievance. Mayes further claimed that McIntosh had told him that he (McIntosh) had orders from the front office to get rid of him, but when Treen, -after Mayes had completed his charges, asked McIntosh if he had anything to say, McIntosh categorically denied this charge , and no substantiation of it was offered by Mayes. Occasionally McIntosh had to go out with the machine repair foremen to check on what jobs had been left over from the previous shift and, at such times he would be absent from his work area at starting times . He said that at such times, after Mayes ignored his verbal warnings about coming in late to work, he had asked Merx and Wassman, both second shift foremen, to check to see if Mayes came in to work late. At this meeting Treen asked McIntosh why he had asked other fore- men to check on Mayes. In the midst of McIntosh's explanation, Herzing, who was "pretty mad" about these other foremen checking on Mayes, "jumped up" and asserted that he had been told by a high official of the Smith Company in Mil- "As shown by the statement of facts heretofore set out, Mayes was one of the most prominent and active of the Herzing henchmen As heretofore related, on numerous occa- sions he had accompanied Herzing about the plant , usually at night , when Herzing was seeking out, berating, and threatening employees at their work about suspected support of the Carpenters' movement or other matters which had aroused Herzing's displeasure. A. 0. SMITH CORPORATION , GRANITE CITY PLANT 365 -waukee that "anytime a foreman gave him [Herzing] any trouble . to call him -collect at Milwaukee land he would come down and get rid of him [the foreman]," and thereupon, Herzing "pounded on the desk, and threw a little black notebook down and said, `I want these God damn men fired.' " As the men he wanted fired Herzing named McIntosh, Randolph, Wassman, all maintenance foremen, Odehnal, general maintenance foreman, Burton, superintendent of maintenance , and Byrd, as- -sistant superintendent of maintenance.33 After this interruption, McIntosh resumed his statement, but had not proceeded far when Herzmg again interrupted him, telling McIntosh that he was "being," and McIntosh told Herzing he was a "liar," whereupon, Herzing "jumped up and said, `there ain't nobody going to call me a liar to my face.' " About here the meeting seems to have just dissolved, and, as General Maintenance Foreman Mathews related it,34 he, Treen, Burton, and McIntosh left the room and went out in the hall and Mathews left the others there talking together. Mathews' testimony mentions one circum- stance not appearing in McIntosh's testimony, that at some point Treen said that McIntosh "was right in adhering to the Company's policy in issuing the written warning to" Mayes. Apparently none of the management representatives present made any response to Herzing's angry claims or demands, nor did any of them rebuke or reprimand him for his conduct. The November 2, 1957, Layoff of Certain Maintenance Workers Charles W. Harp 35 was sent by the Smith Company to the Granite City Plant, in June 1956, as chief coordinating engineer at that plant. He remained there on that assignment until December 15, -1957. Harp said that "one of the reasons" be was sent to the Granite City Plant was to make a survey and a written report with recommendations as to how "to better the maintenance organization" there. Harp completed his written report on February 3, 1957. Among the conclusions set out in the report was that the maintenance department had too many employees and was "oversupervised." "Top management" decided, in June 1957, "to go ahead" with Harp's recommendations . At that time two lines were in operation, "a hand line" and "an automatic line." Harp, inter alia, recommended doing away with the auto- matic line, and that line was shut down sometime in July 1957 and has not operated since. Harp's report estimated that with the shutdown of the automatic line the number of maintenance workers could be reduced, but, as Harp explained, since the automatic line was shut down in July 1957, at the time the changeover for the 1958 model frame, which was to go into production about October or November 1957, was started, it was decided to hold up the reduction "until that big main- tenance job was over." A reduction in maintenance hourly workers was finally ordered, effective as of Saturday, November 2, 1954. The Harp report suggested that with the shutdown of the automatic line a reduc- tion of 41 maintenance hourly workers might possibly be made The number of men to be laid off and their apportionment among the five classifications , in mainte- nance, was decided by active management and implemented by personnel, and the reduction in each classification was by seniority in that classification . The total number to be laid off in all classifications finally announced by personnel was 39, as follows, according to classifications - welders, 7; electricians, 9; pipefitters , 5; oilers, 3; and machine repairmen , 15. Notice was given, on Wednesday , October 30, to those -selected for layoff that same would become effective at the end of their respective shifts on Saturday, November 2, 1957. The first part of the last week in October 1957 , Maintenance Foreman McIntosh 'heard there was soon to be a layoff of hourly workers in maintenance . He inquired of his general foreman , Warren, about the matter and Warren told him that about 11 33 It will be remembered that Foreman Randolph had long, at least since the beginning of the Carpenters ' movement, been at the top of Herzing's list of men he most wanted to get rid of, and that since the previous June or July , when Randolph , Odehnal, and Byrd had reported Herzing's personal union activities in the work areas, interrupting and threatening men at their work, and had unsuccessfully sought to have such activities curtailed, they had been on the Ilerzing blacklist Apparently at that time Burton was also included and now Foreman McIntosh was added 34 McIntosh and Mathews were the only persons present at this meeting who gave testi- mony about it. While Mathews' testimony about the meeting was very brief, nonetheless It does not contradict McIntosh in any particular , and so far as it goes corroborates McIntosh Mayes, Corbin, Grant , and Burton were not called as witnesses °5 At the time of this hearing Harp was chief project engineer of the automotive divi- sion of the Smith Company in Milwaukee. 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD machine repairmen were going to be laid off, but not to tell the men until Thursday (October 31), whereupon, he (McIntosh) got the seniority list of the machine repair- men and read off the names of the "lower 11 men" to Warren who "wrote them down." 36 The following day, General Foreman Warren came back to his office from the front office, and he (Warren) "seemed kind of upset," and when McIntosh asked him when the machine repairmen selected for layoff would be notified, Warren said, that he (Warren) had worked "a lot of places," but this "is the damndest place with the Company and the Union" he had ever seen; that he had just "heard in the front office" that Herzing had been there and told them that if they laid off "his friends, . .. five or six . of the lower seniority" machine repairmen, they had to "go on up [the seniority list] and get Hogan and Paschedag," who were his (Herzing's) "enemies," and consequently 15 instead of 11 machine repairmen, as originally contemplated, were to be laid off. The foregoing discussion between General Maintenance Foreman Warren and Maintenance Foreman McIntosh, and the information, deriving therefrom, as related by McIntosh, stands undenied. Warren was called as a witness by the Respondent Company, but was not asked about this incident. The Boilermakers' contract recognizes two noninterchangeable seniority groups, maintenance and production. The maintenance seniority acquired by a maintenance employee laid off in a reduction in force was of no avail to him in production, and vice versa. However, if, for instance, such an employee had worked in production before going to maintenance, he could on being laid off in maintenance, exercise whatever production seniority he had acquired while working in that group but no more. However, it appears to have been a fixed impression among the workers gen- erally that if a laid-off employee who had no seniority in the other group applied to the Company for work in that group, the Company, although under no contractual obligation to do so, would hire him in the other group on the same basis as a new employee if work was available there which he was qualified to do. All electricians were in maintenance. They had no rights under the Boilermakers' contract, and apparently none of the nine laid-off electricians applied for, or in- quired about, work in production as new employees there. All of the remaining 30 maintenance employees selected for layoff were under the Boilermakers' contract. Of the five pipefitters, two had production group seniority and were immediately transferred to that group, the other three had no production seniority and two of them did not apply for work in production. On Monday, November 4, after the layoff was effective on Saturday, the remaining pipefitter, Wright, reported to Trelc that he was leaving Granite City and left an address where he could be reached in the event of recall. Trelc said that at this time Wright asked about work in production and he (Trelc) told Wright that there were "no openings available" in production "at that time." The seven laid-off maintenance welders all had production seniority and all were transferred to production welder jobs on November 4. Of the three laid-off oilers, two had production seniority and were transferred on Monday, November 4, to production. The third oiler, Price, had no production seniority but on Saturday, November 2, the date of the layoff, he asked for work in production and was trans- ferred that same day to a job in production. That aspect of this reduction in force, or layoff, of hourly maintenance workers most directly affecting this case, at this point, is what happened and how and why in the group of maintenance craftsmen known as machine repairmen, 15 in number, who were selected for layoff: Hogan, Paschedag, Willmore, Gipson, Miller, Mayes, Corbin, Hulett, Shellenberg, Dragovich, Anderson, Baird, Demery, Lementavich, and Cullipher. Of these, four, Dragovich, Anderson, Corbin, and Baird, had production seniority, and on Monday, November 4, were sent to production None of the other 11 men had any production seniority at all. Miller, Hulett, Shellenberg, and Gipson did not at any time ask for work in production. Gipson, who was one among the topmost men on Herzing's list of men he most wanted to get rid of, along with Randolph, Hogan, Paschedag, Willmore, and others, heretofore mentioned, said he did not ask for work in production because he knew it was "not any use" for him to do so, and this conviction on his part was confirmed when he saw what happened to Hogan, Paschedag, and Willmore, which will later be related. Miller said he "was not interesrted in a job in production," and made no effort to transfer. Shortly before the layoff, personnel had gone outside and hired four men as in- spectors in production. At the time of the layoff they still had temporary or proba- tionary status. On November 7, Mayes and Demery, of the 11 laid-off maintenance machine repairmen who had no production seniority, were made inspectors in produc- 36 This and the conversation of the following day with Warren, which is next related, occurred in Warren's office. A. O. SMITH CORPORATION, GRANITE CITY PLANT 367 tion, displacing two of these probationers. Cullipher, who had no production senior- ity, went "several times" to see Trelc about a job in production and sometime, date not stated, in November was hired in production. Of the original 15-laid-off machine repairmen, this leaves four unaccounted for, Lementavich, Hogan, Paschedag, and Willmore. The Lementavich story is revealing and significant . It tends to show Herzing's behind-the-scenes influence with the Company in this matter. The statement which follows setting out facts found is based upon Lementavich's testimony which I fully credit. His testimony stands undenied and uncontradicted, except as to one state- ment which he attributed to Trelc, and in due course I shall give my reasons for crediting Lementavich in that respect. Lementavich, laid off on Saturday, November 2, went to the personnel office early on the following Monday morning, November 4, and talked to Trelc in his private office. He asked Trelc if they were hiring any of the laid-off maintenance men back in production, and Trelc said they were, and asked his name. When Lementavich gave his name, Trelc then told him they were not hiring in production at the present time, but to come back the latter part of the week and he would see what, if anything, he could line up for him. Early on Wednesday morning, November 6, Lementavich returned to the plant and asked Trelc for a job in pioduction; at the same time he told Trelc that he knew men were being hired there, and that some of them were in the personnel office filling out application blanks, and Trelc said "some of those men were hired 2 or 3 weeks before you people were laid off." Trelc then told Lementavich to call him that afternoon and he would see what he could do for him. Lementavich called Trelc on the telephone that afternoon and Trelc told him he did not have anything for him. Again early on the following day, Thursday, November 7, Lementavich was in Trelc's office, and met with the same response from Trelc that there was no job for him. Lementavich told Trelc he knew "men had been hired" that week and "were being hired right along." Lementavich then told Trelc "there is surely something wrong, I can get nothing out of you . if you will tell me what is wrong, I'll not bother you any more." Lementavich, also on this occasion, asked Trelc if he (Trelc) had "anything against" him, and Trelc said, "No." The very next day, Friday, November 8, Lementavich went back to see Trelc. This time he again asked Trelc to tell him what the trouble was. He reminded Trelc that he (Trelc) had told him that his work record was "all right," but "I still can't get a job and there have been men hired here." Trelc, as Lementavich told it, finally said, "The trouble is not with us . . . the trouble is in your own ranks, and I am not going to stick my head out with no damned union." Lementavich then said, "1 don't understand . . . I haven't had any trouble with the Company or the Union." On Saturday, November 9, Lemantavich, greatly troubled, went to the personnel office and asked to see Trelc, but one of the clerks told him Trelc was not in. Le- mentavich then went and talked. to Blankenship, the plant safety and security director, and told Blankenship what Trelc had told him the day before, and asked him if he knew why it was he could not get a job. Blankenship'told Lementavich he would find out, but that he (Blankenship) knew that there was "nothing wrong with his record, as he would know it if there were. The following Monday morning, November 11, Lemantavich was back in Trelc's office. This session with Trelc was brief and curt. It got no further than Lementa- vich telling Trelc that he knew men were being hired in production, and asking why it was he "couldn't get a job," and Trelc telling him that he (Trelc) had nothing for him. After this rebuff by Trelc on Monday morning, November 11, Lementavich finally came to a full realization that for some reason which he could not fathom Trelc had no intention of hiring him in production. He pondered what Trelc had meant when he (Trelc) told him the trouble which was holding him out of a job was not with the Company but with the Union, and finally decided to find out, if he could, why the Union was blocking him out of a job, if it was, and with that purpose in mind he called Herzing on the telephone, early on Friday morning, November 15, and told Herzing he wanted to see him right away. Herzing told Lementavich to be out at the plant by 9 o'clock that morning. Herzing came to the plant about 9:20 that morning, met Lementavich, and took him to a janitor's room.37 Lementavich then told Herzing how Trelc had refused to hire him in production and what Trelc had said about the trouble being with the 37 James Johnson, a clerk in personnel, under Trelc, said that he had heard this room referred to "a number of times" by "different people . .. in the personnel" office as Herzing's office. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union, and said, "It looks to me like somebody is trying to give me the runaround." He then asked Herzing if he, Herzing, "had anything against" him, and Herzing said,, "not a thing ... I looked through all those Carpenters cards, and I didn't find your name on a Carpenters card." 38 Lementavich told Herzing that he was not there "to discuss the Carpenters cards . . . I am here for a job." In the meantime Warfield and Jim Collins, the recording secretary of Local 575, had come in the room.39 Collins told Lementavich, "Somebody is giving you the runaround . . . you should have been working before now." Collins was instructor in the welding school which recently before the layoff had been set up by the Company to train welders needed in production. Collins told the group that only the day before "four or five . . . new employees" had "come out of the welding school" and had been put on jobs as welders in production; Collins "had their names in a little book." Herzing asked Collins for the book, and he and Collins went over the list of names, and discussed them one by one. Lementavich told the group he was not going back to the person- nel office because "d don't feel like I will get a job there . they made it plain to, me . that somebody had my job tied up," whereupon, Herzing said, "I will go in there [personnel] and see what I can do for you." It was about noon that Friday (November 15) when Lementavich got home. He told his wife that he was "going uptown to get a haircut." When in the early afternoon he returned home, his wife told him that there had been two telephone calls for him, one from Herzing saying he (Herzing) had "good news" for him "con- cerning a job," and the other from Reynolds, a clerk in the personnel office and an assistant to Trelc, saying "something about getting a job" for him. Lementavich at once called Reynolds on the telephone, and Reynolds told him: "I have a job for you . . . a man was discharged . report to the plant at 6 o'clock Monday morn- ing ... to go to welding school." Lementavich asked Reynolds if he could report to the plant the next morning (Saturday, November 16) and Reynolds told him to come to the plant then, if he wished, "and get a card." Lementavich was at the plant early Saturday morning. Reynolds had some "papers typed up and a card made out" for him, and told him he was now "rehired" and was to work in production. The following Monday (November 18), Lementa- vich reported at the welding school, and after he had been there 3 hours, Collins told him to go to the office, and he would be assigned to a job. Lementavich asked Collins if he was through with welding school, that he understood he had "to go to welding school 3 days." 40 Collins told Lementavich, "I have already passed you." At personnel Reynolds immediately assigned Lementavich to the welding department in production. Trelc, called as a witness by Respondent Company, was asked on direct exami- nation if in any of the conversations with Lementavich he had told Lementavich, "the trouble is not with us, the trouble is in your own ranks, and I am not going to stick my head out for any damn union"; his answer was, "I did not say that." In my opinion, in accordance with Lementavich's testimony, during the week of almost daily visits to Trelc's office, Lementavich kept pressing Trelc as to why he was being barred from a job in production, which he desperately needed, while others were being hired there "right along," Trelc finally made an explanation to the effect, and implying, that the "trouble" was not with the Company but with the Union. As I have said, I credit Lementavich about this statement which he attributes to Trelc. I closely observed, and was impressed by, Lementavich's demeanor as a witness. I got, and have, the distinct impression that he is a direct, plain-spoken, straight- forward, guileless sort of person. It will be remembered that the thing that caused Lementavich finally to go to Herz- ing was this very statement by Trelc to the effect that the trouble was with the Union. Lementavich told Herzing, Warfield, and Collins what Trelc had said, and spoke as plainly to them as he had to Trelc about somebody giving him the runaround, and when Herzing mentioned the Carpenters' movement, Lementavich told him that he was not there to discuss that but to find out, if he could, who was keeping him out of a job. Based upon my observation of Lementavich, and his demeanor as a witness m It is not said when Herzing made this inspection which had apparently cleared Lementavich, to Herzing's satisfaction, of suspicion which may have existed that he was connected with the Carpenters' movement It may well have been done that very morn- ing after Lementavich had called Herzing on the telephone and told him he wanted to see him that day 39 This apparently had been prearranged by Herzing 40 There is other testimony that the training course in the welding school usually re- quired 3 days. Lementavich said that everybody he talked to who went to welding school had "three days of instruction " A. 0. SMITH CORPORATION, GRANITE CITY PLANT 369, and his testimony as a whole, which is undenied, except in this one respect , it is in- conceivable to me that he could, or did, subtly concoct the statement he attributed to Trelc. This Lementavich incident has an aroma that cannot be ignored. One needs, all facets of this case considered, but to apply some everyday commonsense to the Lementavich facts to conclude that during this layoff, Herzing stood in the wings with a veto at hand on any among those laid off without production seniority who might seek work in production, and that, for some reason, Lementavich had come under suspicion of having supported the Carpenters ' movement and therefore name had been flagged by Herzing. It is noteworthy that when Herzing decided he was mistaken about Lementavich, events moved rapidly, and that within but a few hours after Herzing told Lementavich he would go see personnel about a job for him, Lementavich had a job, and Herzing called the Lementavich home and told Lementavich's wife, he being absent at the time , that he (Herzing) had good news, for Lementavich about the job. -It is difficult for me to accept and credit, and I do not do so, Trelc's testimony that prior to Lementavich suddenly being given a job the afternoon of Friday, Novem- ber 15 , neither any union official nor anyone in management asked him to give, Lementavich a job in production. Reynolds, Trelc's assistant, said that Trelc did not at any time, during the period that Lementavich was haunting the personnel office seeking a job in production, tell him "to try to find something for" Lementavich, and that the only instructions he had at any time received from Trelc about Lementa-- vich was on Friday afternoon, November 15, when Trelc told him to call Lementa- vich in and put him to work provided he was able to pass the welder's examination. I note to this point that of six of the nine laid -off maintenance Boilermakers with- out production seniority who applied for work in production, four, Price, an oiler, and_ Mayes, Demery, Cullipher, and Lementavich, machine repairmen, were given jobs, in production. As to whether Wright, a pipefitter, really applied for a job in produc- tion, the one bit of testimony is vague. He left Granite City immediately or shortly after the layoff of November 2. He came by the personnel office and left his new address in the event of recall. At that time, according to Trelc, he made an inquiry about work opportunities in production, and Trelc said that he told Wright that there were no openings there at that time. Wright did not pursue the matter further. If he had done so, and was in the clear with Herzing, he doubtless would have been placed in production within a few days at most. This leaves three, Hogan, Paschedag, and Willmore, all machine repairmen, of the group of nine Boilermakers who had no seniority in production but sought work there, unaccounted for. In the revealing light of Lementavich's experience, no crystal ball is needed to foresee what soft of a chance these three men had, all long considered by Herzing as, among his enemies, and all among the very topmost men on Herzing 's list of men he most wanted to,get rid of. Herzing had threatened to get their jobs, and had never ceased trying to find a way to do so. On Wednesday, October 30, 1957, the maintenance workers selected for layoff were notified that their layoff would become effective at the end of their shifts on Saturday, November 2.41 Friday evening, November 1, Hogan, Paschedag, and Will- more, second shift men ( 3 p.m. to midnight ), machine repairmen in maintenance, while having lunch together in the cafeteria, decided to go see Trelc about jobs in production , as none had any production seniority . The three, still on their lunch hour, started to Trelc's office and met Trelc in the hall, just leaving his office for the day. They "took turns" asking Trelc about getting a job in production and Hogan asked specifically about a job as a production welder because at that very time the Company was operating a welding school training new men from the outside for jobs as production welders. Trelc's assistant, Reynolds, said that about the time of the layoff the Company "inquired of the employment office at Granite City" whether they had any "welders available." Hogan had had "about 18 years- of experience as a welder," and felt that he should have no trouble getting a job as a production welder, since at the time of the layoff the Company needed production welders and "was hiring people off the street and putting them in this welders school and teaching them how to weld . and then putting thm on as welders in production." Trelc told Hogan , Paschedag, and Willmore that he was leaving for the day and suggested that each get permission from his foreman and come separately to see him the following day, Saturday, November 2; Hogan to come. at 4:30 or,5 p.m., and one, of the others at 5:30, and the other at 6 p.m. About 5 p.m. on Saturday, November 2, Hogan went alone to Trelc's office, as Trelc had suggested the previous evening. Hogan first asked- Trelc for a job as a welder in production , and, according to Hogan , and as to this, undenied testimony, 42 At that time the plant was working on Saturdays ; that is, 6 days a, week, 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I credit Hogan, Treic said he had all the welders that he needed 42 Despite his well- founded disbelief that the Company did not need any more production welders, Hogan made another try, and asked Treic, "How about something else in produc- tion," and Trelc said he did not have "anything," thereupon, and here Hogan's and Trelc's version of this interview differ as to language used, as Hogan tells it, he said: "Mr. Trelc I know what the score is, Herzing is keeping me out," and Treic said, "I don't care whether you and Herzing love one another or not . . . I just don't have anything." About this interview Trelc said that he explained to Hogan that at that time "we were in the process of adjustment . that persons . who had production group seniority . . . were being transferred from the maintenance department to produc- tion openings . . . and we had a number of persons in the welding school, and as soon as we made adjustments and knew where we were going we could possibly place them." 43 Trelc stated that at this point Hogan said, "Don't give me that s-, I am on Willard Herzing's s- list, I can see the handwriting on the wall," here Trelc added, "or words to that effect." Treic said he did not "recall much of the rest of the con- versation," and "shortly" Hogan left the office. Treic poses as being so shocked and affronted by the language quoted, "or words to that effect," which he attributed to Hogan on this occasion, that he then and there decided and resolved that "if" he "could avoid placing Mr. Hogan in a production assignment" he "would do so," and although, as Treic relates it, Hogan thereafter came to his office "a number of times asking me about a job in production, I told him we had no openings for him." [Emphasis supplied]. This is the sole explanation that Trelc gave for at all times refusing to give Hogan a job in production. Trelc does not say that there were no openings in production at that time or "on the number of times," or "many times," thereafter that Hogan came to his office seeking work in production, but merely that there was no job there for Hogan. Hogan was employed October 15, 1954, a few months after the plant commenced operation, and worked there continuously to the time of this layoff. So far as the evidence herein discloses, his record was unblemished. In November 1957, shortly after the layoff, the National Lead Company, with offices at Fredericktown, Mis- souri, ran an ad in a St. Louis newspaper for a maintenance repairman. Hogan was one of the applicants for the job and named Respondent Company as his last em- ployer. The personnel director of the National Lead Company, Stuart Landrum, called over long-distance telephone to the Smith Company's Granite City Plant to inquire about Hogan. He asked to talk to "someone in the employment supervisor's office" who could give him "a reference on a former (Smith) employee." He was connected with Smith's personnel office but could not recall who it was he talked with there. In response to Landrum's inquiry about Hogan, he was told that Hogan "was a qualified maintenance man," that the "quality of his work . . . was very good," that his "general attitude . was very good," and that his "attendance record was good," however, another and not Hogan was selected for the job. While apparently Trelc was not the person with whom Landrum talked, Trelc was aware of this call and the recommendation made by his office, and on one of the "many times" Hogan later went to see Trelc about a job in production, only to be told there was no job "for him," Trelc asked Hogan "what happened to that job at Fredericktown," and said, "they called for a recommendation." Although work was available in production, particularly welding, and Hogan was an experienced welder, as Trelc was informed and knew, and although Hogan had worked there continuously from shortly after the plant commenced operation, and admittedly the quality of his work and his general attitude as an employee were rated "very good," and he had a good attendance record, and although Hogan on November 2, and "many times" thereafter came to see Treic seeking work in production, from the first Trelc adamantly refused to even consider Hogan for a job in production. The only explanation Trelc gave, as stated above, is so im- 42 This was on November 2. It will be remembered that as late as Friday, November 15, after Herzing had cleared him and intervened in his behalf, Lementavich was hired as a production welder, and, after 3 hours in welding school on Monday, November 18, was assigned to a welding job in production, and that on Friday morning, November 15, Collins, the welding school instructor, told Herzing, Warfield, and Lementavich that four or five new men had gone out of the welding school just the day before to jobs as produc- tion welders Further, about the time Trek declared he had all the welders he needed, his own personnel department was making inquiry of the unemployment service whether they had any welders available. 43 The "them" apparently referred to Paschedag and Willmore as well as Hogan. A. O. SMITH CORPORATION, GRANITE CITY PLANT 371 plausible, improbable, and unrealistic that I am unable to credit it as the real and motivating reason for refusing to hire Hogan in production. Hogan, along with many dissatisfied Boilermakers, believed that the Company was assisting and collaborating with Herzing in his attempt to get rid of and suppress his opposition within the Union as the price management felt they must pay and did pay to avoid strikes, sitdowns, slowdowns, and "turmoils" in the plant. That Her- zing did actually or figuratively have a list of men whom he denominated as his enemies, and whose jobs he openly boasted he would eventually get, there is no question. Herzing and his own henchmen frequently referred, particularly during the Carpenters' movement and the deauthorization movement, which later devel- oped, to "Herzing's list" and subtly, and at times not so subtly, suggested to sus- pected members that being on that list might well result in economic reprisals against them. Many there were among the Boilermakers who believed that Herzing by virtue of his special position in the plant possessed the power he claimed to exe- cute such reprisals. Hogan well knew that he was, and for a long time had been, among the topmost men on Herzing's list, marked for reprisal. Hogan also knew that the Company was aware of Herzing's threats against him and others. On at least one occasion, as above related, Hogan had reported to his foreman Herzing's threats to shim, made while he was at his work in the plant, to do him bodily harm and'to get his job. Although this was reported to the top management, it was ig- nored in line with the Company's established policy to, by all means, keep Herzing placated. Returning to this interview of November 2 with Trelc when, as Hogan knew, the Company was at that very time seeking and hiring new men from the outside as production welders, Hogan, an experienced welder, was refused a welding job or any job in production, he may have in his frustration and exasperation, expressed what he, and so many others, believed in locker or latrine room language. Ad- mittedly some, in fact many, of the employees, including Herzing, were given to emphasizing their statements, conversations, and discussions with profanity, or hardy, earthy language not commonly used in the parlor. For instance, I note here the testimony of employee Gardner that on one occasion, Herzing, Gardner, and several other Boilermakers were engaged in a discussion in the personnel area, between Treen's office door and the door to Trelc's office, "and the language they were using got so foul that Mr. Treen came out of his office" and asked them to move their discussion to the conference room, that he "didn't want that kind of language used in front of the girls in the office." The use of such language seems to have been regarded as commonplace. The only objection was to the use of same within the hearing of the girls working in the personnel offices. Johnson, a clerk in the personnel office under Trelc, said that on more than one occasion he had heard Herzing talking in a loud voice and using profanity in,the personnel area and on one such occasion when Herzing was talking in an unusually loud voice and using profanity in the personnel area, he went to Herzing and asked him to keep his voice down but he did not report the incident to either Treen or Trelc. Again the language itself was not complained of but merely the speaking in such a loud voice as to be heard by the girls in the personnel area. Trelc's claimed extreme sensitivity to Hogan's language spoken privately in a man-to-man discussion is hardly believable and it is hardly credible that such lan- guage would so have offended Trelc that for that reason alone he would spurn and reject the services of an employee with long service and an unblemished record, for whom the Company was willing to give, as it did a few days later, the highest recommendations, particularly at a time when the Company had need of men with Hogan's qualifications. It is more credible that Trelc was by this explanation merely improvising an excuse and seizing upon a pretext to cover up his real reason for denying work to Hogan, namely, to further implement the policy the Company had followed practically from the time it moved Herzing into its personnel field, of appeasing, placating, and collaborating with him by unlawfully assisting him in his endeavor to coerce and suppress those who opposed his domination of the Boiler- makers, with the thought thereby that Herzing would repay the Company by pre- venting strikes, sitdowns, slowdowns, and the like with which it had been plagued. In this instance the Company by pretext clandestinely assisted Herzing by getting rid of Hogan, one of his principal targets, and, by doing so, discouraging Paschedag and Willmore, the two other Herzing denominated enemies exposed by this layoff, as it was finally made up, to this situation, in their efforts to get jobs in production, thinking thus to eliminate some of the leading anti-Herzing men from the plant and strengthen Herzing in his control of the Boilermakers. When Hogan left Trelc's office the evening of November 2, he had the conviction that Herzing through the acquiescence of the Company had effectively barred him 61491 3--02-col 132 -25 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from a job in production. Returning to his work station Hogan, passed near where Paschedag was working, and Paschedag asked Hogan the outcome of his interview with Trelc. Hogan related what had occurred but suggested that nonetheless Paschedag go on to Tre1c's office and see what Trelc would do in his case, but Paschedag well knowing that his situation, so far as Herzmg was concerned, was the same as that of Hogan was convinced that he had no chance of getting a job in production and abandoned his intention to go see Trelc that day. However, Pas- chedag, having been unable to get work in the meantime, did finally go with Hogan to see Trelc about a job in production on December 3. This will be related later. At the time on the evening of November 2 that Willmore was supposed to go see Trelc, he found himself "tied up on a breakdown and had to stay on" that emergency job "until it was finished." However, while Will, more was working on the "break- down" at a point near Hogan's work station, he asked Hogan about his interview with Trelc and knowing that he too was one of the top men on Herring's list of men he proposed to get rid of felt he had no better chance than Hogan of getting into production. Despite this belief Willmore did go to Trelc's office as soon as the emergency repair was completed, but by then Trelc had left for the day. Later in November, Willmore, still out of work, went to the personnel office to see Trelc about a job in production. On that occasion "the girl in the office walked back to the door of Trelc's office and stuck her head in . . . and said something to some- one [in Trelc's office], shut the door and came back and told" Willmore that, "Mr. Trelc wasn't in." Willmore feeling that it was hopeless anyway made no further effortto see Trelc about work in production. As above stated, on December 3, Paschedag, although without much, if any, hope- ful expectation of success, went with Hogan to Trelc's office, the last of the "many times" that Hogan- went to see Trelc after the November 2 fiasco. Trelc opened the conversation by asking Paschedag why he didn't come to see him on Saturday, Nov- ember 2, as scheduled, and Paschedag told him that, "I figured there wasn't any use, why should there be something for me and not for Hogan." At one point Trelc said in substance that even before Hogan came to see him on November 2, he already knew that he would not give either Hogan or Paschedag 44 a job in production, and that he "should have told" Hogan so at that time. Thus it appears that on November 2, Paschedag read the omens aright, and had he gone to see Trelc on that date it would have been futile. Concerning this meeting of December 3, 1957, Trelc did not say that there were no jobs open in production at that time. He said that he told Hogan and Paschedag that they were eligible for recall to their former jobs in maintenance in the event men were needed in the future in maintenance but that, "I would not place them in the production group." He further said, that the "specific reason" he gave Hogan at that time for not hiring him in production was "that I didn't like his attitude," and that the "specific reason" he gave Paschedag for not hiring him in pro- duction was "excessive absenteeism." Trelc had Paschedag's personnel file before him and, referring to same, told Paschedag that he had been absent 13 days in the year preceding his layoff. Paschedag asked Trelc how many times he had been absent since the shutdown (June 27 to July 10, 1957) and Trelc said four times. Paschedag asked Trelc when maintenance would be needing men. Trelc said, "Some of the maintenance people are complaining about having too much work," but that he (Trelc) thought "that was a movement . . . just to try to get" them (Hogan, Pas- chedag, and Willmore) "back," whereupon.Hogan said (to Trelc), "Well, we are just wasting our time and yours" nand Hogan and Paschedag left. The Deauthorization Movement Along in November, after the Company's position that it would not hire in pro- duction any of the laid-off maintenance men who did not have production seniority unless they were cleared nand approved for such job by Herzing became so clearly apparent, Hogan's home became, and thereafter continued to be, the headquarters, clearinghouse, and central meeting place of the dissident Boilermakers, those work- ing as well as those who found themselves in laid-off status, who were opposed to Herzing and his clique, and wanted to get rid of them as officers of the Union, and their domineering, coercive, and discriminatory tactics, and to dissolve the arrange- ment which had so long existed between the Company and Herzing and his group of henchmen whereby the Company, abandoning neutrality, supported and assisted 44 While Trek did not here name Willmore, since the circumstances as to him were the same as those operating to bar Hogan and Paschedag, undoubtedly the real reason Trelc had, as early as November 1 or 2, for raising a permanent bar against Hogan and Paschedag likewise applied to Willmore. All three were counted out before they even applied for work in production. A. O. SMITH CORPORATION, GRANITE CITY PLANT 373 that group in maintaining control and domination of the Local, and in visiting re- prisals against those opposing them, or suspected of doing so. In December 1957, as plans of action commenced to take shape among the dissidents, and in January 1958, as the deauthorization movement, as will be later related, got underway and found widespread support throughout the plant, it is said that "people" in sympathy with the objectives of the dissidents "were coming and going" at Hogan's house "at all hours of the day and night." These meetings at the Hogan home were not by any previous arrangement or schedule. They were wholly informal and unorganized, merely groups of Boiler- maker employees95rwho had a common concern, as above stated, about the Company-Union, as represented by Herzing and his group, situation at the plant. Sometimes there were but 2 or 3 persons present, but estimates of the number most generally present range from 5 to 11 or 12 or more, and on occasion 20 or 25. There were so many coming and going that within the same day the number present at any one time varied. Some of those most frequently mentioned as being present at the Hogan home during the period of November and December 1957 and Jan- uary 1958, and who seemed to have been the leaders in this dissident movement, which was now being carried on with the Hogan home as headquarters, were: Hogan, Randolph, Paschedag, Van Noy, Potts, Willmore, Gipson, Bailey, Leisner, and Pereria.46 The objectives and purposes to which this informal group of dissidents, making Hogan's home their headquarters, was dedicated, and to which their discussions and planning was directed, as expressed by various witnesses, follows: Potts said, they were trying to find a way whereby they could "legally straighten out the Union and the Company," and that these people "were pretty closely knit together for their own protection"; Watts: "We wanted to clean up this mess that existed out at the plan . . . we were tired of the way men were being pointed out by Herzing and being fired for unjust reasons, and we wanted to break up this marriage between the Company and the union officials"; Randolph: "We were just a group of people who didn't like the situation we had out at the plant . . . what the Union and Company did together so we got together to see if we could do something about it"; 47 Gipson: "The men in the plant were in a squeeze . . . between the Union and the Company"; Nichols: "We needed a housecleaning out there [the plant], things stunk pretty bad " Edward F. J. Reiske, president of the Tri-City Central Trades Council, AFL-CIO, with offices in the Labor Temple in Granite City, said that during November and December 1957, Hogan, accompanied each time by other dissident Smith employees, "made several visits" to his office "to discuss their problems" with him, and to seek his advice.48 He said that he advised them "as right as I possibly could." Reiske further said that among those who accompanied Hogan, at one time or another, on these visits, were Randolph, Paschedag, Gipson, Potts, and Bauer, a member of the IBEW at the plant, all Charging Parties herein.49 Reiske said that on these visits their complaints were mostly against Herzing "personally," and not the Boilermakers; they told Reiske they "thought there was collusion between Herzing and the Company," and they also thought that "it was improper for Herzing not to be on the job . . . as a maintenance man instead of being freed to wander" 4u Except two of those quite frequently there, were former employees , Leisner and Pereria , who had been discharged. 96 Leisner filed an NLRB charge against the Union , in Case No . 14-CB-458, on April 26, 1957; complaint issued thereon , and the case was consolidated for bearing with Case No 14-CB-463, wherein complaint issued on a charge filed by Hogan against the Union and Herzing, president As heretofore noted , a hearing was held July 15 to 18, 1957, and the Trial Examiner found against the Union and Herzing. No exceptions were filed Leisner was discharged July 22, 1957 Pereria was also discharged ; I do not have the date, but apparently well before the November 2 layoff. Both filed a charge against the Company which was dismissed upon an appeal to the General Counsel Hogan , Paschedag, Willmore, and Gipson were in laid-off status. Potts, Bailey, Van Noy, and Randolph were still working, but Randolph was, as I find herein, discriminatorily laid off January IT, 1958 47 Randolph was one of the principal victims of this collusion between Herzing and the Company 48IIogan and Reiske were friends of many years At one time they were for 8 years members together of a Machinist local of which Reiske was an official. 49 In the light of Herzing's boasted intelligence setup ( recall the Carpenters ' movement) and the systematic surveillance maintained by,him and his henchmen , I believe it a reason- able inference that, from the beginning , he was pretty well aware of the activities of this group, and I doubt not that he kept Treen and Trelc and management informed 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD around the plant wherever and "whenever he wanted to." Reiske said that they asked him "to take up their problems with the Executive Board of the Central Trades Council." Shortly before mid-December 1957, Hogan went alone to see Stanley Schuchat, a St. Louis attorney, who was attorney for the IBEW. Hogan learned of Schuchat through Bauer, a member, as heretofore stated, of the IBEW unit at the Smith plant. Hogan told Schuchat "some of our problems," and Schuchat asked Hogan "to bring over the Boilermakers constitution," and he "would look it over, and see what could be done." Two days later Hogan and Randolph took a copy of the Boilermakers constitution to Schuchat. On December 16, 1957, Albert Rowden was, as I herein find, discriminatorily discharged. This dissident group was aware of the circumstances of the Rowden case, involving a trivial and isolated exchange of words between two union men, Ropac, one of Herzing's henchmen, and Rowden, about a purely union matter, which in nowise interfered with or interrupted production, or the peace and order of the plant ; in fact only one person, a nonemployee, other than the two men them- selves even heard what was said between them. The dissidents considered the Rowden discharge as but another instance of the very course of conduct and action on the part of the Company which they were protesting. On the night of December 16, a meeting was held at the Hogan home with 20 to 25 employees present. The discharge of Rowden was discussed, as well as Hogan's report concerning the contact he had made with Attorney Schuchat. Spurred on by the Rowden discharge a group or committee was designated, composed of Hogan, Randolph, Potts, and Van Noy, to consult Schuchat further as to what legal action, if any, might be pursued to further the aims of the dissident group operating from Hogan's home as headquarters. "Around" December 20, the committee called on Schuchat and discussed with him their "problems"; and "what" they "were up against" at the plant at some length. In the course of that discussion they told Schuchat the Union was being "run by one man [Herzing] alone," and he "could get anybody fired that he wanted to." Schuchat asked them why they did not prefer charges against Herzing, and they said such charges would have to go through Herzing and would never get to the International. Schuchat finally suggested that "maybe" something could be accomplished by pro- ceeding under Section 9(e) (1) of the Act, as amended, which provides: Upon the filing with the Board, by 30 per centum or more of the employees in a bargaining unit covered by an agreement between their employer and a labor organization made pursuant to section 8(a)(3), of a petition alleging they desire that such authority be rescinded, the Board shall take a secret ballot of the employees in such unit and certify the results thereof to such labor organiza- tion and to the employer. At this meeting, Schuchat stated that he believed that if they could get 30 percent of the employees in the unit to sign such a petition they could "pull the teeth . in the contract, and the International would come down and clean up the mess" they "had at the plant," and "straighten up" the situation there. The committee discussed "the deauthorization card" which Schuchat proposed be used but could not "decide," at that time, whether they "wanted to go through with it or not," so they "went back and talked it over" with other interested parties. After general consultation it was decided to go ahead with the proposed deauthorization or decertification,50 and on January 8, 1958, a group composed this time of Randolph, Hogan, Willmore, and Gipson 51 went to see Schuchat and told him to go ahead and "write up" the proposed decertification card. The card which Schuchat drafted was titled "Decertification Card." It stated that the "undersigned" designated William R . Hogan "as my agent," and requests that he (Hogan) petition the Board, pursuant to Section 9(e)(1) of the Act "to conduct an election to rescind, revoke and/or withdraw from the existing labor contract the authority" of the Company and Local 575 "to enter into or continue in effect that provision in the labor contract that provides for union security whereby" all mem- bers of the unit "shall, as a condition of employment , become members of the local union." It is further stated that this card "may be used as evidence in support of any petition" filed with the Board by Hogan, pursuant to Section 9 (e) (1) of the Act. A printed supply of these cards was received at the Hogan home on January 9, 1958, and the first distribution and solicitation to sign was made, and the deauthorization movement launched, that night. 60 Throughout the testimony the terms "deauthorization," most generally used, and "decertification" are used interchangeably fix Willmore and Gipson took the place of Potts and Van Noy who were on the first com- mittee to call on Schuchat. I A. 0. SMITH CORPORATION, GRANITE CITY PLANT 375 Beginning the night of January 9, 1958, the deauthorization campaign continued thereafter at full blast for a period of about 10 days. By grapevine and like communi- cation media, the word got about during the day of January 9 that these cards would be available, to those desiring to sign, the night of January 9, 1958, at Hogan's home and at Bells Tavern.52 Herzing learned of this during the day of January 9, and notified Warfield, Lane, and others of his henchmen generally that he "had word" that the Hogan-Randolph group had "set up" a meeting for that night at Bells Tavern "for the purpose of signing these decertification cards," and Herzing, Lane, Warfield, all general officers of the Local, and Corbin, a steward who frequently accompanied Herzing on his wanderings about the plant interrogating union members suspected of disloyalty to the Herzing group, went to the tavern that night and parked their car "across from the Tavern" in a position which enabled them to observe who came and went and even, to some extent, what was going on inside. Randolph and Paschedag were handling the deauthorization cards that night at Bells Tavern. Lane said employee Millard Hudson was assisting them, and that they had a table in the back part of the Tavern where "they were having people sign these decertification papers." Lane said, "We had a fellow go in and pick up one (of the cards) and bring it outside to us." Herzing said Watts was one of the deauthorization group at the tavern the night of January 9. Gipson and Willmore handled the cards at the Hogan home the night of January 9. Hogan's mother passed away that day and he was not there that night. Gipson remained at the Hogan home until 4 or 5 o'clock of the morning of January 10. On the night of either January 9 or 10, Anton Becker (a Charging Party), a second shift employee, while in the lockerroom, immediately after the end of his shift at midnight, was told about these cards and that he could sign, if he desired, at Hogan's home. He went there that night and signed. He mentioned others present on that occasion at the Hogan home as Hogan, Willmore, Leisner, Potts, and Van Husen. Herzing identified Anton Becker (a Charging Party) as one of those who went to the Hogan home the night of January 9. On January 10, the proponents of decertification set up another recruiting station at what is known as the "fruit stand," "a little vegetable and fruit stand on Highway 67, about a half mile north 53 of the plant," which "is unoccupied . . . the major part of the year." Solicitors operated here principally during the afternoons of the workdays from January 10 to about January 17 or 18, 1958. The first shift in both maintenance and production got off work at 3:30 p.m.; the second maintenance shift started work at 3 p.m., and the second production shift at 3:30 p.m.; so the location at the fruit stand was a convenient vantage point for contacting these first and second shift workers during the afternoons. All of these first and second shift workers who dived in a general northerly direction from the plant passed the fruit stand in going to and returning from the plant, while those whose route to and from the plant was over Highway 67 from the south had to go only a short distance beyond the plant to reach it. Watts said that from its inception the deauthorization movement was "talked all over the shop," and the circumstances in evidence surely support that statement, while employee Ashloak, who signed a card at Bells Tavern, said, "Everybody knew where to go to sign a card, the fruit stand, Bells Tavern, or Hogan's home." About 11 p in., on the night of January 10, shortly before midnight, Randolph, Gipson, and Willmore left the Hogan home and went to Bells Tavern and passed out cards there and near there, and solicited the second shift men who stopped or came there after midnight; all second shift employees, both maintenance and pro- duction, got off work at midnight. Willmore and Gipson returned to the Hogan home and stayed there until around 4 a.m. Hogan and others were also at the Hogan home. The reason for maintaining open house at Hogan's home until such late hours was to enable any second shift men, off work at midnight, who preferred to come there to sign cards, to do so, also some of the third shift men (11 p in. to 7 a.m.), among whom the opposition to the Herzing regime was pronounced, would come to the Hogan home during their lunch period (3 to 3:30 a.m.) and sign cards. For instance, during the third shift lunch period the night of January 10, third shift employees, Garner, Hall, Woolverton, Nichols, Luther (all Charging Parties), Hardy, and Hotz, went together in Garner's car to Hogan's home and signed deauthorization cards and immediately returned to the plant. They clocked out on leaving and in on returning which was permissible. 5' This tavern is located north of and a short distance from the plant and many of the employees in going to and returning from the plant passed that way. It was conveniently within reach of the employees generally regardless of their usual route to and from the plant 5' There were also estimates that the distance was but one-fourth of a mile. 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Randolph, at the time a first-shift man (7 a.m. to 3:30 p.m.), passed out cards "every day" from January 9 to about January 17 outside the plant at one or another or all of the three places where cards were being made available. Likewise, Hogan, Willmore, Paschedag, and-Gipson, all in laid-off status, assisted by others, including Leisner and Pereria, also worked daily and nightly at the fruit stand, Bells Tavern, and/or Hogan's house passing out cards and soliciting signatures . Union official Lane identified Henry Kent and Clarence Shaw (both Charging Parties) as also engaging in such activities at the fruit stand, and Herzing said that Nichols and Bailey (Charging Parties) were also soliciting there. From the night of January 9 to the cessation of the solicitation at the three places mentioned, Herzing and his immediate group of local officials, Mayes, Warfield, Lane, Stearns, Ropac, and Steward Corbin, kept the activities at all three points under almost constant sur- veillance. Herzing testified that they (he and his henchmen) "watched" these places "day and night"; that "we knew all the men who were there at that fruit stand"; and that they drove back and forth past Hogan's home and took the license numbers of cars parked there. In that connection he said he had reason to believe, and was checking these car licenses to verify, that Arley Potts, a union trustee, was affiliated with the dissident group, and found out "he [Potts] was one of them." This is merely one of many circumstances that leads me to conclude, as I have before stated, that the Herzing group was aware of and checking on the activities of this dissident group during November and December 1957, because Potts' activities were confined to meetings at the Hogan home during November and December 1957 and January 1958 before the deauthorization movement started. He did not distribute cards at Bells Tavern, the fruit stand, or Hogan's home, and was not present at any of those places at any time when the cards were being passed out. From the beginning of the deauthorization campaign, the night of January 9, there was a widespread and favorable response. There were scattered and varying esti- mates of, and rumors about, the number of employees who signed during the brief period of 7 or 8 workdays of the active campaign, but no definite statement was forthcoming from anyone, who may have been in a position to know, as to the exact number who ultimately did sign. Potts, a union trustee, but one of the dissident group, estimated, from such information as he had picked up, that from 600 to 800 employees signed. Potts said, "certainly" Herzing realized that a large number of the employees were signing because he (Herzing) "was throwing a fit about them signing them cards." During the Herzing revocation campaign, union official Mayes told employee Wolfe that he (Mayes) alone had obtained 387 revocation cards, and "the other boys had a lot." Randolph estimated that one group of the dissidents, but this group did not include nearly all who were engaged in the distribution of deauthorization cards, obtained "approximately" 300 signed cards. It seems there is little doubt that the total number signing well exceeded the required 30 percent of the Boilermakers unit. The Revocation Campaign The product, however, of the simultaneous campaign launched and carried on by Herzing and his group to induce employees who had signed the deauthorization cards to sign revocation cards undoubtedly put the ultimate success of the deauthorization attempt in doubt. Herzing's revocation campaign was waged at the union hall, in union meetings, and by letters and literature which he sent, with the assistance of the Company, to all members and, with the consent and approval, of the Company, distributed, and caused to be distributed, and posted inside the plant. At these union meetings and by these letters and this literature Herzing threatened the expulsion from the Union of anyone who signed a deauthorization card but failed to sign a revocation card on or before a fixed deadline date. Some of these letters or litera- ture threatened that if the deauthorization movement was not immediately squelched, the employees' "jobs with the Company" would be "jeopardized," and that the Company might "cut its production schedules," and "even withdraw its plant from this area." The revocation campaign was further carried on inside the plant by Herzing and his henchmen, and the union stewards, armed with revocation cards, personally contacting individual workers during working hours, and at, all hours, voicing the same type and kind of threats as those contained in the letters and literature bolstered by statements that if an employee wanted to protect his job in the plant he had better sign a revocation card, and if he did not do so he might lose his job This kind of statement was also made by Herzing and other union officials at union meetings and in contacting individuals and small groups at points outside the plant. Herzing had already demonstrated his power to wreak economic reprisals on those opposed to him, and because of that and of his special position in the plant, and A. 0. SMITH CORPORATION, GRANITE CITY PLANT 377 his well-known inside, intimate relationship with management , whose course of conduct lent credence to his boasted influence , many of those employees , who sin- cerely desiring to rid their Union of what they deemed the arbitrary and capricious domination of Herzing and his group had signed the deauthorization cards as a means to that end, were frightened and coerced by Herzing 's threats and statements and now hastened to sign his revocation cards lest their failure to do so might, in some of the ways stated and implied by Herzing , and his group, affect their job tenure. It was well established, in fact it can be said admitted , that from the inception of the deauthorization movement, management all the way down to the foremen generally was aware of the movement and what was going on and what was involved. Treen testified that he was aware of and concerned about the deauthorization move- ment; that while it was going on he had numerous "conversations with Mr. Herzing about it," during which Herzing named "some of the people involved ," specifically and repeatedly mentioned Hogan, Randolph , and Paschedag in that connection; that "mainly Mr. Herzing was talking about they are doing this and they are doing that," but he "was not always specific about who they were"; that "it was pretty generally known" that this deauthorization movement was going on, and "Mr. Herzing didn't give me any information about it that was news"; that his foremen made reports tv him about groups of employees assembling at the fruit stand, "preceding and fol- lowing shift changes," and that Hogan and Randolph, and others, were passing out deauthorization cards there ; 54 and that in "late December [ 1957] or early Janu- ary" (1958 ), Herzing told him that the dissident group planned to bring another union into the plant to be "headed" by Hogan and Randolph . At that time Hogan was in laid-off status and Randolph was still working, however , Randolph was, as I find, thereafter discriminatorily laid off on January 17, 1958. Treen further said that, in view of the deauthorization movement , he "cautioned" Herzing "to keep his organization operating effectively . . . that I didn't want any of these side issues cluttering up the plant," and that he gave "instructions to super- visors and foremen . . . that there shouldn't be any union activity in the plant other than contract administration , the settlement of grievances , and if they saw" employees "soliciting" or "involved in signing up people . . . they were to take steps under our points of order." There seemed to be no question that, in view of the deauthorization movement , Treen gave or caused to be transmitted to the supervisors and foremen instructions of some kind but just what the instructions that reached them were remains unclear. Maintenance Foreman Luebben testified that he knew about the deauthorization movement , and that he was "asked by" his "supervisor if there was any deauthorization activity going on in the plant." Asked what instructions his supervisor gave him "about this deauthorization move- ment," Foreman Luebben said his supervisor instructed him, "not to allow outside union activities on Company property." [Emphasis supplied .] In the context of the existing situation "outside union activities" undoubtedly carried the connotation of any activities other than those on the part of the Boilermakers , the certified Union Concerning Herzing's revocation campaign, "Let us look at the record " in this case. January 11, Saturday, was the date for the regular monthly meeting of the Union . Prior to the meeting which apparently was in the afternoon, Pereria was busy passing out deauthorization cards and soliciting signatures in front of the union hall. One employee who signed a card for Pereira at that time and place was Harold Gardner, who had been elected and had served as a member of the 1957 wage negotiating committee . Herzing said that Bailey (a Charging Party herein), who had been expelled from the Union in May 1957 for participation in the Car- penters' movement, was passing out deauthorization cards, and that Potts , Pasche- dag, and Willmore were mingling with a group of employees across the street from the hall. As the time for the meeting to convene drew near , Randolph started to enter the hall, but his way was barred by Herzing , who told Randolph he could not "go into the meeting." Randolph told Herzing that the Union had accepted and retained his reinstatement fee and the Company had deducted his dues,55 and he was en- 54 Trelc was also well informed about the deauthorization movement , and the activities of the dissident group at the fruit stand and Bells Tavern He discussed the movement with Herzing and Warfield, and on a number of occasions with Treen , and "conveyed" to Treen such information as he had about it 65 Randolph had been reduced from a foreman to the ranks on November 4, 1957 On November 5, he paid a $35 "reinstatement fee and signed a dues authorization slip at the Union Hall ," and dues were deducted by the Company and paid over to the Union for December 1957 and January 1958 In February ( 1958 ) the reinstatement fee and dues 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD titled to attend the meeting. All the while Herzing "kept screaming" at Randolph, "You are a foreman, you can't go in." 56 By this time "a large number of people" (employees) had "gathered around" Herzing and Randolph, and Randolph told Herzing, "Leave it up to the people here whether I go in or not. . It should be left to them." Herzing ordered that someone "call the law" ; some Herzing cohort did so and three police officers put in an appearance. Herzing told the officers to arrest Randolph for "disturbance," and he would "be over later and sign a warrant." Whereupon, Randolph told the officers he would like to get out a "counter warrant" for Herzing. The officers suggested that Randolph get in the police car, but once out of sight they told him they were not going to hold him, and immediately re- leased him with the remark, "that they knew what kind of a person Herzing was." Perhaps this incident does not contribute anything of moment at this point, but it does reveal and reemphasize the bitter and intense animosity toward Randolph which Herzing had so long harbored. It goes without saying that Herzing never applied for a warrant for Randolph. According to the credited and, for the most part, uncontradicted testimony of Potts (a Charging Party), as he started to enter the meeting, after Herzing had barred Randolph, Chief Steward Hendricks, who was "drunk," approached him and said, "You agitators have got to go." Potts told Hendricks, "Maybe somebody else is going to go." whereupon, Hendricks called Potts "a s- of - b-," and Potts walked away. It seems that one of the very first items of business was a pur- ported financial report by Financial Secretary Ropac, who took some bills out of his pocket and said these bills have to be paid. When Ropac finished his statement, Potts made a motion that the report not be accepted "because it was not a complete report." An oral vote was taken on the motion and the members voted orally not to accept the report, whereupon, Herzing ordered a second and a standing vote, and this time the motion was defeated. At that juncture Hendricks "jumped up and started running" toward Potts. As Hendricks lunged at Potts, Herzing "grabbed" him "by the coat" and said, "There's going to be none of that." Potts told Herzing to "let him go, I am not scared of him." Potts said Herzing "knew, as well as I did" that Hendricks was "too drunk to get to me in the first place." Immediately after the incident Potts left the meeting. Hendricks did not testify. Herzing said that Potts, Paschedag, and Willmore all took the floor and talked in support of deauthorization, but that they were roundly "booed." Herzing is apparently mistaken about Potts' participation in this instance as he left the meeting immediately after Hendricks' abortive attempt to assault him, which was one of the first items of business transacted. The number of members present is not stated. The whole record of the Herzing regime considered, it may reasonably be inferred that the most loyal of Herzing's personal following were on hand. What Herzing said at this meeting about the deauthorization movement is at most sketchy, nor does it appear whether as yet he had his revocation cards at hand, but he un- doubtedly took the opportunity to warn that anyone who signed a deauthorization card was subject to union discipline and that such action would be taken. Herzing, Lane, and Warfield all said that one objective of the close surveillance they main- tained was to ascertain who were participating in this dissident movement in order to file union charges against them looking to expulsion. Apparently immediately following the regular January (1958) meeting, on January 11, Herzing obtained the revocation cards and he and his union officials and some of the stewards commenced soliciting signers. An undated printed cir- cular or handbill,57 directed to "all members of Local 575," signed by Herzing, president, issued. Omitting much of the elaboration and argumentation, this hand- bill stated, in substance, that the most "decertification cards could possibly accom- plish" was to do away with the union-shop provision of the contract and make the plant "an open shop rather than a union shop"; expressed the belief that those who had signed decertification cards had been "purposely misled," and urged all who had done so to "contact the union and obtain" and execute, "a form revoking this union-busting decertification card." The Union sought permission from Treen to pass out this handbill to employees at the north door of the shop or factory. The plant premises are completely inclosed by a fence. As before stated, the plant premises are along the west side of U.S. Highway 67. The factory or shop build- collected by the Union were returned to Randolph by a check dated February 5 Thus Herzing arbitrarily and of his own motion barred Randolph from membership in the Union 60 Herzing well knew Randolph was not a foreman He himself had pressured the Company into choosing Randolph for reduction from foreman to the ranks, and, comply- ing with Herzing's demands in that respect, the Company had, on November 4 1957, sent Randolph back to the ranks 17 General Counsel's Exhibit No 7 A. 0. SMITH CORPORATION, GRANITE CITY PLANT 379 ing, and the door referred to as the north door at the northeast corner of the build- ing, are 217 feet or more west from the main gate. This north door is the em- ployees' entrance and exit to and from the factory. They come from the parking lot, north of the factory building and inside the enclosure, past the guards' station, and through this door to go to work, and on leaving work come out this door to get to the parking lot. Treen, who said he had given instructions to his supervisors and foremen not to permit, "any union activity in the plant other than . the settlement of grievances," having first examined the handbill as to content, gave Herzing permission to pass it out to the employees, at the north door, as had been requested, and this was done by local officials and stewards. Treen's best recollection was that this was about January 11 or 13. This handbill was also posted on the plant bulletin boards, which posting was apparently authorized by the Company, as Trelc said that the posting of such matter on the Company's bulletin boards is "supposed to be first authorized by the Company." Although it bears no date, and the sequence is not clear, nonetheless, about the time this first handbill was circulated, Herzing sent, as he puts it, "to all employees," a mimeographed letter, signed by him as president, and Warfield, as vice president, and directed to "Dear Brother and Family." 58 Inclosed was a return addressed (to the Local) postcard. On this card were three questions with yes or no boxes following each 59 I shall not set out this rather lengthy letter in its entirety, but certain statements therein will be set out or referred to, which adroitly imply that the Company has an interest and desire paralleling that of the Union in having this deauthorization movement aborted, and that if the movement is not "immedi- ately" stopped in its tracks the job tenure and security of the employees may be endangered.so The letter begins: I am writing this letter not only to the members of Local 575, but to their families as well, since you all have an interest in the continued operations of the A. O. Smith Plant in the Granite City area, and the full and continued em- ployment of our members at that plant. Parts of the third and fourth paragraphs read: By a campaign now being started William Hogan and his agents seek to de- stroy the strength of the Local, threaten our gains, and jeopardize our jobs with the Company . . . We seriously believe that another campaign of union turmoil will cause the A. O. Smith Company to cut its production schedules at this plant, and even withdraw its plant location entirely from this area. We ask you if that is what you want. We ask you, instead, to join us in stopping this union-busting cam- paign and support Local 575. Selections from the remainder of the letter follow: We are asking you to fill out the inclosed post card and immediately return it to us so that we can be fully informed of Hogan's activities.... If those who have signed any of Hogan's "Decertification Cards" will now sign a card re- voking this authority given to Hogan . . . no action will be taken against them under the Boilermakers International Constitution. . To prevent charges being brought against anyone under the Constitution, for signing Hogan's card, you must sign on or before January 22, 1958, a card revoking the authority given to Hogan. . These revocation cards may be obtained from Local 575, or any of the Union Stewards in the plant. Failure to revoke your card given to Hogan by the date mentioned will result in charges . . . to cancel your Boilermakers Union Card. In the last paragraph appears this parting admonition: We believe you should be concerned about the effect Hogan's campaign will have on our continued employment at the plant. . We believe all members should work to immediately stop the campaign to weaken our Local . .. . [Emphasis supplied.] es General Counsel's Exhibit No 8 51 In substance • (1) Did you sign a decertification card for Hogan ; (2) Did you know such card was for the purpose of destroying the union shop at the plant; and-(3) Do you wish to continue the union shop at the plant's 60 It is of no value but I am constrained to insert here the gratuitous observation that, in view of my experience in hearing this case, I doubt that Herzing or any of his hench- men worded this letter 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In this letter is found the compulsive and effective theme of Herzing's revocation campaign voiced again and again by Herzmg, Mayes, and other local officials, and certain union stewards, to individual and groups of employees in the plant during working hours, and at all hours, and wherever contact could be made, that anyone who signed a deauthorization card and failed to sign a revocation card incurred not only the risk of expulsion from the Union but also the loss of his job in the plant. Whatever their convictions and however they felt about the Herzing regime, few employees were willing to risk the loss of their jobs and few there were, in the light of experience, who looked upon the statements of Herzing and his group of officials in that connection lightly. Herzing went to Treen with this "Dear Brother and Family" letter, and asked Treen for a company list of the names and addresses of all members of the unit represented by the Boilermakers, and told Treen that he wanted this list in order to send this letter to all the members. It is plain enough to me from Treen's own testimony that, under the circumstances,.he doubted the propriety of the Company supplying Herzing with the list of employees and their addresses to be used for the purpose stated by Herzing. Treen well knew about the deauthorization campaign and the Herzmg counterrevocation campaign, a purely intraunion matter, and he also well knew the obligation of the Company to maintain strict neutrality in such a controversy. Treen did not immediately acquiesce in Herzing's request. He said that instead he engaged in "some discussion" with Herzing "as to whether or not I should furmsh the list," but I note as usual where Herzing was engaged in some effort to overcome his opposition, Treen yielded to Herzing's importunities for as- sistance by the Company. Treen justified his decision to put the facilities of the Company at Herzing's disposal, in this instance, on what appears to me to be a patent pretext, that is, that he decided that supplying Herzing with the names and addresses requested to be used in sending this letter to all members of the umt, was comparable to supplying the Union with a seniority list which Treen said "the con- tract requires." The contract provides merely that: "Seniority lists will be sub- mitted to the Union once every 3 months," section K, article VII. Thereupon the address slips were "prepared" at the Company's home office in Milwaukee "on the Company's IBM machines" and delivered to Herzing. On cross-examination Treen said that he read this "Dear Brother and Family" letter but he claimed he could not "recall" whether it was before or after the letter was mailed out. He said that Herzing "showed" the letter to him and he read it but could not recall whether he approved or disapproved the content. About this he said, "I don't recall commenting on it at all other than expressing some approval of the fact that he (Herzing) was keeping his membership informed of develop- ments." As revealed by the letter one of the principal "developments" about which Herzing was informing the members was that unless this deauthorization movement was immediately stopped, the Company might cut its production schedules and even withdraw its plant altogether from that area and their jobs at the plant would be jeopardized My observation of Treen aas a witness and his unusual indefiniteness 61 about when he saw and read this letter, coupled with the fact that it seems to me most unlikely that he would grant the free use of the Company's facilities for mail- ing out this letter without even knowing the contents, leads me to believe that it was at the same time he came to Treen with the request for the use of the Com- pany's mailing list that Herzing showed Treen the letter and that Treen read it 62 but whether it was before or immediately after the letter was mailed out, Treen did read it, knew its content, and by his silence and failure to repudiate it he must be deemed to have approved and ratified the implied threat that unless the deauth- orization movement was immediately stopped, the continuance of plant operations and the employees' job tenure would be endangered. Two "special" union meetings with respect to the deauthorization movement were held on the afternoon of January 15 and the morning of January 16, respectively Herzing said the separate meetings were held at those times in order to accom- modate the day and night shifts. Admittedly the Company permitted the employees to leave work early and report late in order to attend these meetings, however, they were not paid for the time taken off for this purpose. Herzing had an attorney, a 63 Treen, a highly intelligent man, spent many hours on the witness stand and exercised a remarkable memory even about details 62][t is recalled that the Company would not even permit or authorize the posting by the Union of any notice, document, or such matter on its bulletin boards until the content of same was first examined and approved by it. A. O. SMITH CORPORATION, GRANITE CITY PLANT 381 Mr. Souders,63 present at these meetings "to tell them [the members present] the law." Immediately following these two special meetings, Herzing got out another hand- bill or circular,64 a lengthy two-page mimeographed document. In the first para- graph of this circular it is stated that it is being issued for the purpose of "again" stating "the true purpose of Hogan's campaign . . . for the benefit of those em- ployees who were not able to attend the special meetings on January 15 and 16, 1958." Lengthy arguments concerning the merits of a union shop are advanced with citations of some of the things said along that line at the two special meetings. In the concluding paragraph it is stated, "any members . . . who have in the past signed any" deauthorization cards "for Hogan nand his agents . must sign on or before . . . January 22, 1958, a card revoking all such authority to Hogan or his agents. In the event these cards are not submitted to Local 575 or its stewards at the plant on or before that date, legal action under the International constitution will be taken against such members." It is then stated that revocation cards "can be secured from Local 575 or your steward in the plant." Although Treen claimed he had given instructions to his supervisors and foremen that "any union activity in the plant other than contract administration, settlement of grievances," should not be permitted and that if same occurred it should be treated as a viola- tion of the Company's points of good order and would require disciplinary action, he gave permission for the Union to pass out these handbills on the company property at the north door of the factory and authorized posting on the Company's bulletin boards, despite the statements therein that revocation cards could be ob- tamed from the stewards "in the plant," and signed revocation cards could be de- livered to the stewards "at the plant." A copy of a letter by Herzing to Hogan, dated January 17, 1958,65 was, with the approval and permission of the Company, also posted on the Company's bulletin boards. This letter enclosed what purported to be a list of names of a number of employees who had signed the Hogan deauthorization cards but had since signed revocation cards. Herzing demanded that Hogan return the deauthorization cards signed by those listed within 3 days, and threatened "to institute legal proceedings" against Hogan if he failed to return said cards and undertook to use them for any purpose. While Herzing was about the plant at various and frequent times and hours making various and sundry statements about the deauthorization cards and what might happen to those who signed the Hogan cards if they did not sign his revocation cards by the deadline he had fixed, prominently including the possibility of the loss of their jobs in the plant, he did not personally, to such a conspicuous extent as he had done in opposing the Carpenters' movement in maintenance, accost individuals at their work,66 nonetheless, the same within-the-plant type of campaign waged in opposing the Carpenters' movement was carried on, in this instance, by Mayes, one of Herzing's principal lieutenants, and other officials of the Union and certain chief stewards and stewards. The union officials, chief stewards, and stewards were sup- plied and had at hand in the plant at all times revocation cards which they had been directed by Herzing to hand out in the plant, and they were also directed to receive or collect signed revocation cards at the plant, all of which the Company knew. Mayes was one of the principals in the within-plant solicitation of individuals. Mayes was in the maintenance layoff made on November 2, 1957, but a few days later he was transferred to the first shift in production (7 a.m. to 3:30 p.m.) where he was still working during the period covered by the deauthorization and revocation campaigns . Mayes was not called as a witness and there was no denial of the actions in connection with the within -plant revocation campaign attributed to him by various witnesses. Ledru O'Dell, a second shift man, in production, credibly testified that on one occasion during the deauthorization movement, he, Joe Jones, Don Komiak, Charlie Chance, Jack Bailey, Stearns, an officer of Local 575, and Frank Kessler, a union steward, were "sitting . in a shed outside . . . while on a break." They got into a discussion of the deauthorization movement. O'Dell said he had signed a deauthorization card and "wasn't ashamed of it," and that he would sign another if 63 A member of the firm of Gruenberg and Schobel, attorneys for the Union. This firm represented the Respondent Union at this hearing. 14 General Counsel's Exhibit No. 6 05 General Counsel's Exhibit No. 28. 66 Perhaps he had in mind the cease-and-desist order of the Board issued against him individually as well as the Union , on November 19, 1957, and was endeavoring to give the appearance of compliance on his part 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that would help, because he did not like the way the Union was being run, where- upon, Union Steward Kessler told O'Dell he had better keep that to himself if you want to keep your job." At that point Mayes came in to the shed with some revo- cation cards in his hand and commenced "trying" to get signers. O'Dell walked out and went back to work. Shortly Mayes came to where O'Dell was working at his job and asked him if he signed "one of those Hogan cards." O'Dell refused to say. Hayes offered O'Dell a revocation card and told him he had better sign one of these, that if he did not he would be "kicked out" of the Union, and if that happened and he lost his job there he could not get work at another plant "because of the union " A few days later O'Dell was working near where Stearns, recording secretary of Local 575, was working. Stearns had some revocation cards with him and he offered one to O'Dell and told O'Dell if he would sign it the Union would not bring charges against him. O'Dell signed and handed the card back to Stearns. O'Dell's shift started to work at 3:30 p.m. and Mayes' shift ended at that time. It must have been some time after that hour when O'Dell was sitting outside in the shed "on a break," and at least a short time after that when Mayes approached O'Dell and solicited him at his work. As stated Mayes did not testify and it was not explained by what authority Mayes was roaming around the plant with revo- cation cards soliciting signers during the afternoon or evening sometime after the end of his shift. Stearns did not testify. Henry Bathon, also a second shift man , testified, without contradiction that Mayes (first shift) came to him while he was at his work on the second shift and accused him of "getting . . . these deauthorization cards signed up" for Hogan which, Bathon said, "I never had done." Mayes told Bathon he had "better keep" his "mouth shut" and "quit signing up people" or he would "get in trouble." A few days later Bathon, Mayes, and two other employees were together in a tavern and fell into a discussion of the deauthorization movement , and, in that connection, Mayes said that "he was going to stamp hell out of a couple of guys at the plant if he ever got hold of them." William Bruce Wolfe worked on the second shift in maintenance (3 p.m. to mid- night). On Saturday afternoon, January 11, he was on his way to the regular January union meeting and stopped at a restaurant across the street from the union hall. There were a number of Smith employees there, and some of them had the Hogan deauthorization cards. As Wolfe left the restaurant to go across the street to the union meeting, he was hailed by Paschedag who solicited him to sign the deauthori- zation card. Although Wolfe was himself a union steward he was in sympathy with the announced objectives of the proponents of deauthorization. He signed the card tendered him by Paschedag. On the next Monday night (January 13) he went into his foreman's office, Foreman Ernest. Wolfe mentioned the deauthorization move- ment to Ernest and asked him "if he knew what was going on," whereupon, Ernest said, "Bill, keep your nose clean, stay out of it, it looks like trouble brewing." "The next three nights in a row," Mayes [a first shift man who got off work at 3:30 p.m.] came to see Wolfe at his work station "about signing a revocation card ." The first "night" Mayes came to where Wolfe was at work and told him that he (Mayes) had heard that Wolfe had "signed a decertification card." Wolfe neither affirmed nor denied. At that point Wolfe, was sent to another job and he left Mayes. The next "night" Mayes came again to Wolfe, as he was at work on his job, and resumed questioning Wolfe as to whether he had signed a deauthorization card, and Wolfe said that Mayes "kept pinning me down so tight that I admitted it," and Wolfe promised Mayes to think over the matter of signing a revocation card. It is not clear just when he did so, but apparently it was on this occasion that Mayes took Wolfe's steward's badge away from him. The third "night in a row" Mayes came to Wolfe while he was about his work and asked him what he was going to do, and told him if he would sign a revocation card, he (Mayes) would talk to Herzing "and see if he could save my job." Wolfe said that, in view of "past practices" in the plant, "it was obvious" to him that Mayes "meant my job with the Company, and not as steward with the union . there is nothing in that anyway," and that because of his family and the implications of Mayes' threat he felt he had "no alternative" and he signed the revocation card. "A couple of nights" later Mayes again came to see Wolfe at his work and "begged" him "to take back the steward badge," saying "no- body else would have it." Again these excursions by Mayes, who got off work at 3.30 p in., night after night were not denied or explained William Peppers, a second shift employee in production (3:30 p.m. to midnight), who signed a deauthorization card at Bells Tavern, said, and his testimony is un- denied, that on one occasion during the revocation campaign he overheard Mayes talking to employee Bob Baker and Frank Schwab in the plant, and Mayes told them A. O. SMITH CORPORATION, GRANITE CITY PLANT 383 that, "if they would sign revocation cards . . he would get their names taken off Herzing's list." It is noted that this was also during the second shift. Willis N. Rhine, a second shift employee in production (3:30 p.m. to midnight), was a union steward at the time the deauthorization campaign commenced. He signed a deauthorization card at Bells Tavern on January 9 and resigned as steward on January 10. A few days thereafter Chief Steward Jim Jones came to the ma- chine where Rhine and Oak Morgan were working together. Jones had some revo- cation cards in his hand and offered a card to Rhine and Morgan and told them that they "had better sign" the card or they "would be on the outside looking in," and that all the men who had signed deauthorization cards and did not sign revoca- tion cards "would be gotten rid of." About January 13, Rhine had a conversation with Steward Bob Isom in the plant cafeteria about the revocation cards, at which time Isom told Rhine, "It has been nice knowing you but if you don't sign a revo- cation card you won't be here no longer." Later Chief Steward Jim Jones ap- proached Rhine at the drinking fountain; Steward Isom stood nearby. Jones told Rhine that he had "better sign one of these [revocation] cards or you will be fired." Rhine, fearful of Herzing's reputed power and influence to accomplish such an end, dared not take the risk of losing his job and he signed the revocation card tendered him by Jones at the water fountain. On cross-examination it was sought to imply that Jones must have meant that if Rhine did not sign a revocation card he would be "fired" from the Union, but Rhine said that he understood Jones to mean, and that was what moved him to finally sign the card, that he would be fired from his job with the Company if he did not sign; which undoubtedly was the mean- ing that Jones intended to and did convey. Jones had previously told Rhine that if he did not sign a revocation card he would find himself on the outside looking in and Steward Isom had told him, in effect, that if he did not do so he would not be working there at the plant any longer. It is noted that although Rhine capitulated and signed the revocation card he was nevertheless "fired" from the Union in February. If Jones and Isom by their threats meant to convey no more than that Rhine would be expelled from the Union, why did they not take the witness stand and say so? Neither was called as a witness in the case. Rhine's testimony is undenied and is credited. At the time of the deauthorization movement Randolph was an hourly worker on the second shift in maintenance. Chief Steward Jim Jones also worked on that shift driving a lift truck. Randolph testified, without contradiction, that on several occasions he had seen Jones , during working hours and on company time, approach employees at their work with these revocation cards soliciting signers; that "on some occasions" Jones left his -truck and walked around to where employees were working and solicited them to sign, while at "other times he pulled up close to employees or other truckdrivers and asked them to sign revocation cards." Randolph said that he was standing "right next to" Jones, on one such occasion, when he approached employee Brooks at his work and solicited him to sign a card. Randolph's testimony is undenied and is credited. Employee Gardner signed a deauthorization card on the afternoon of January 11 in front of the union hall. From July 1956 to November 1957, Gardner had been a steward and was also an elected union member of the 1957 wage negotiating committee. Gardner said that while this revocation campaign was being carried on in the plant, he saw Chief Steward Hedrick circulating about the plant, "going from man to man" with these revocation cards and talking with them at their work during working hours. On one of these occasions Hedrick came to Gardner in the plant during working hours while Gardner was working on his job and handed him a revocation card and requested him to sign it. Gardner who was familiar with the declarations by Herzing at union meetings , and in letters and literature, signed the card. Gardner said that at the time Hedrick approached him at his work, Hedrick was out of his own department. About 30 minutes after Gardner signed the card for Hedrick, Inman, the regular shop steward, came to Gardner on the job, stopped him, and told him it was necessary to have two copies of the revocation card and at Inman's request Gardner signed a second revocation card and turned it over to Inman. Gardner said foremen were present in the department at the times he saw Hedrick going about with revocation cards and contacting employees at their place of work. Asked to name any foremen he had seen in the department in which he worked at such times he named Lloyd Mouser. Neither Hedrick nor Inman was called as a witness and Gardner's testimony concerning them was of course not denied by either. Re- spondent Company called Foreman Mouser as a witness, and he said that during January 1958 he had not seen Hedrick nor "any other employee" with "any cards of any kind" in the plant: I credit Gardner's testimony concerning Hedrick, Isom, 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the presence of foremen in the department at the times Hedrick was going from man to man soliciting signers to the revocation cards. Employee Lester Wallace, second shift in production (3:30 p.m. to midnight), went after midnight, end of his shift, one night in the first part of January, with a group of men to Bells Tavern and signed a deauthorization card. As Wallace relates subse- quent events, so far as they affected him, he personally must have inadvertently escaped detection and apparently was not suspected by the Hogan group. Later he attended a "called" meeting of the Union and as he was about to enter the room where the meeting was to be held, he saw and heard Herzing talking to a group of employees just outside the door and listened to what Herzing was telling them and heard Herzing say inter alia that the deauthorization cards "were not legal"; that "he (Herzing) would give the people who signed the cards . . . an opportunity to sign a revoke card ... but if they didn't . . . he would have them fired, or see that they were fired . . it would be their jobs and they would be out on Highway 67." Later while Wallace was working at his job he overheard Chief Steward Welch talking to some employees "who were working near the station at which" he worked about the revocation cards and when Welch finished his remarks "to these other people," Wallace asked Welch what the setup was on the men who had signed (deauthoriza- tion) cards 87 Welch told Wallace that in his opinion "it would be best for them to sign a revoke card to protect their job." That same night after he had completed his shift (at midnight) and was leaving the plant, Wallace came upon Herzing talking to a group of employees in the hall about the deauthorization movement. Wallace waited until the men to whom Herzing was talking had moved on and then asked Herzing, "What is the setup on these deauthorization cards," 68 and Herzing said, "I'm going to give those guys a chance . to sign a revoke card . . . but I'll have the men who don't sign a revoke card fired." After Herzing moved away Chief Steward Welch came along the hall "on his way out" and Wallace told Welch he would like to sign "a revoke" card. Welch told Wallace to come with him and they went back to the lockerroom and Welch got a card out of his locker, Wallace signed, and at the same time said, "I presume this is over now" and Welch assured him it was and that Wallace "wouldn't be bothered about it" any more. Henry L. Kent, a first shift power truck operator, who earlier had signed a de- authorization card, testified, without contradiction, that a few days later he was approached in the plant while he was working on his job by Chief Steward Molinar, who tendered him a revocation card and inquired, "Henry, why don't you sign one of these cards and get back under the wing." Kent refused to sign and Molinar walked away. Randolph was one of the principal promoters of the deauthorization movement and kept well informed about what was going on in the plant in connection with the revocation campaign . I credit Randolph's statement as factual that, "it was general knowledge ... out there" (the plant) that union officials and stewards "circulated around the plant during working hours soliciting employees" to sign revocation cards and "that they were doing it on company time." I cannot accept the theory that the Company did not know about the within-plant activities, during work hours, on behalf of revocation by Mayes, Hedrick, Jim Jones, and others of the Herzing satellites as well as some of the stewards. As said, and here again said, no explanation was ever made of Mayes', who got off work at 3:30 p.m., presence and activities during the second shift, 3:30 p.m. to midnight. It was never revealed who gave Mayes, a first shift man (7 a.m. to 3:30 p.m.), permission to roam the plant night after night soliciting the second shift workers. If it was by permission granted by a company official or supervisor then that in and of itself was unlawful assistance by the Company to the Herzing group. If Mayes was not specifically authorized to canvass the plant in this way it is hardly credible that the foremen on the floor and the supervisors generally were and remained ignorant of his actions which were "general knowledge" in the plant. The same is true as to the activities of Jones, Hedrick, and other union officials and stewards generally. And in any way it is viewed the Company's acquiescence amounts to unlawful assistance to the Union and the Herzing group in the revocation campaign. What these union officials and stewards were allowed or permitted to do lends weight to Foreman Luebben's testimony that the instructions given him by his supervisor were not to allow "any outside union activities on company property," conversely such activities by the Boilermakers were, as theretofore had been the custom, permissible. I do not believe that Foreman Luebben was balled up at all in his recollection of the instructions given but was in fact, in his own way, giving the substance and effect of the real instructions er Wallace said Welch did not then know that he had signed a deauthorization card 68 By this time Wallace was apparently getting uneasy A. 0. SMITH CORPORATION, GRANITE CITY PLANT 385 given to all supervisors and foremen, that is, not to permit any activities "on company property" in behalf of the deauthorization movement, while the Union was left free, to carry on activities in opposition. On the morning of January 17, 1958, Randolph, Hogan, and Willmore 69 went to see Attorney Schuchat about preparing the text of a handbill in answer to the hand- bills handed out a few days before by Herzing and his group, with permission of the Company, inside the plant premises at the north door of the factory building Randolph (a second shift worker) got to work at approximately 2:45 p.m., and was laid off immediately. I find herein that, in this instance, the Union, by and through Herzing, caused the Company to discriminatorily lay off Randolph. That night (Jan- uary 17) between 10:30 p.m. and 12:30 a.m.,70 Randolph, Hogan, Paschedag, Gipson, and others passed out two handbills to employees entering and leaving the plant at the north gate and main gate of the plant; one of these (General Counsel's Exhibit No. 57) was drafted by Schuchat, and the other by Hogan (General Counsel's Exhibit No. 58). The Schuchat handbill was signed by Hogan and referred to Herzing's state- ments that "the decertification cards . . . are a union busting move," and, in reply, said, "This is not our intent-we are not union busters. We are Herzing busters," and, to brief it, explained that the election sought would determine by secret ballot "whether . . . the union security clause remains or is removed from the contract," and that "should a majority . . . vote to remove" that clause from the contract, "the rank and file members will no longer have to pay dues, assessments, or fines . to anybody. This will stop all sources of revenue . thereby clipping Mr. Herzing's wings. Mr. Herzing won't like this. I wonder why?" The other, a'small handbill, drafted by Hogan, in the light of Randolph's layoff that afternoon read: One more man let out today at A. O. Smiths without any representation; That is one more reason we are Herzing busters. Who's next. It may be you. The Discriminatory Discharge of Albert Rowden The General Counsel contends that employee Albert Rowden was discriminatorily discharged by the Company on December 16, 1957, because Rowden was objection- able to the Boilermakers, and that the Boilermakers caused the Company to dis- charge Rowden for this reason. The Company insists that Rowden was justifiably discharged because of his involvement in an incident on December 13, 1957, in the plant cafeteria for which he was disciplined in accordance with plant rules, denomi- nated "Points of Good Order," governing behavior of employees. On Friday, December 13, 1957, as on several past occasions, the Company turned over the use of space in its plant cafeteria to the Boilermakers to collect and adjust the dues of its members. Engaged in this activity for the Boilermakers was its financial secretary, Raymond Ropac, and a clerical employee of the Union at its headquarters, Delores Lane, who was the wife of Kenneth Lane, one of the offi- cials of Local 575. At the time in question Rowden was a steward for Local 575 in one of the Company's plant departments. That morning an employee for whom Rowden was steward angrily complained to Rowden that Ropac had demanded from him dues payments in excess of the amount he believed payable. Rowden obtained permission from his foreman, Zickovich, and went to the cafeteria to dis- cuss the employee's complaint with Ropac. According to Rowden's testimony at the hearing there was an exchange of views on the subject in the course of which Ropac arose from the table, where he and Mrs. Lane were seated, and shook his finger within 2 or 3 inches of Rowden's nose, whereupon he, Rowden, told Ropac, "You get your finger out of my face and stop talking like that or I will slap you in the puss." He denied that he used profanity or hit Ropac. . Shortly after the cafeteria incident, Industrial Relations Manager A. E. Treen stepped out of his office and encountered Herzing who angrily informed him that Rowden had struck Ropac in the cafeteria. Treen immediately directed Personnel Supervisor A. P. Trelc to investigate the matter. Trelc related that he thereupon went to the cafeteria. None of the personnel employed there had knowledge of the incident. He then inquired from Ropac and Mrs. Lane who were still in the cafeteria. From the latter he obtained a statement including her version of the incident. He obtained a verbal account from Ropac and jotted down some notes. Trelc then summoned Rowden to his office and procured from him a written state- ment containing his account of the incident and advised Rowden that he would be eB Randolph was still employed at the plant at that time. Hogan and Willmore were in laid-off status 70 In order to reach the third shift employees (11 p in to 7 30 a m ) going in to work and the second shift employees leaving work at midnight 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD informed of the Company's disposition of the case upon conclusion of the investi- gation. On the following day, Saturday, December 14, 1957, Ropac signed a written statement for Trelc. After leaving the cafeteria , on Friday, December 13, Trelc immediately reported to Treen what he had ascertained and was further in- structed by Treen to inform Elmer Betz, the head of the department in which Row- den worked, of the investigation . Trelc testified that he thereupon, on that same day, went to Betz and apprised him of the incident and conveyed to him Treen's "serious" view of the situation . Trelc then had the signed statements of Rowden and Mrs. Lane which he read to Betz. He had not at that time obtained Ropac's written and signed statement, but he read to Betz the notes he had made of his interview with Ropac. Trelc told Betz the handling of the problem was his (Betz' ) responsi- bility. Betz testified that on Trelc's departure he summoned Zickovich, Rowden's immediate foreman, and showed him the statements of Rowden and Lane and the notes which Trelc had left with him. He indicated that he and Zickovich would have to decide upon disciplinary action . After they had discussed the matter with- out reaching a decision , they parted with the understanding they would convene later to review the matter again. As stated, December 13, 1957, the date of the Ropac-Rowden incident and Trelc's talk with Betz, was a Friday. Betz testified that following his conference with Zickovich on that day, as above related, he did not confer with anyone con- cerning the Rowden affair until he came to the plant the following Monday morn- ing, December 16. He claimed that during the weekend he had turned the matter over in his mind and finally decided that Rowden should be discharged . On that Monday morning he called in Zickovich to tell him of his decision and asked for his agreement or dissent. Zickovich merely concurred with Betz' decision to dis- charge Rowden without offering other comment . Neither Betz nor Zickovich con- sulted or took into consideration Rowden 's employment record. Rowden had worked at the plant since it commenced operation . Upon notification to Trelc of Betz' decision , a meeting with Rowden was immediately arranged in Trelc's office. Present were Rowden, Trelc, Betz, and Zickovich. Rowden was there told by Zickovich that he was to be discharged . At the conclusion of the meeting a written statement of the reason for the discharge dictated by Betz, and written out by Zicko- vich, was presented to Rowden. It specified that his discharge was predicated upon conduct which- consisted of threatening a fellow employee and using profane and abusive language in violation of the Company's "Points of Good Order," these being a set of rules issued by the Company governing the behavior of its employees. Specifically the profane and abusive language and the threat to Ropac as set forth in Lane's and Ropac's statements consisted of the following: According to Lane's statement Rowden had said to Ropac, "God damn you what are you charging $5.00 for, etc." Her statement also alleges that "Rowden slapped Ropac's hand with sufficient force to brush his hand and arm away," and declared to Ropac, "Don't get smart with me or I'll slap you in the puss." Ropac's statement contains no reference to the use of the alleged profanity mentioned in Lane's satement, but claims that Rowden "took a swing at me knocking my hand down." Rowden impressed me as a credible witness whose testimony concerning his con- duct in the cafeteria is unchallenged by any other witness who had actual knowledge of the events in question , particularly as neither Mrs. Lane nor Ropac were called to testify concerning the incident . As between Rowden's testimony before me tested by vigorous cross-examination and the somewhat contradictory written statements of Lane and Ropac in evidence , I accept the former as proof of what occurred in the cafeteria . This finding, however, is not dispositive of the question before me, as the illegality of the Company's action depends upon a showing that it was moti- vated by statutorily proscribed considerations . The mere fact that Rowden may have been discharged because the Company unfairly or inaccurately evaluated the statements of Ropac and Lane, in some respects inconsistent , if not contradictory, is not sufficient support for a finding that Section 8(a)(3) of the Act was'violated. I am, however, convinced that his discharge resulted from an unlawful motivation and that the truth or falsity of Lane's or Ropac's statements concerning Rowden's conduct was immaterial to the Respondent Company. What mattered was its de- termination to rid itself of another employee because, like others shown by the evi- dence herein to have received similar treatment , his union views and activities were too often opposed to the practices and sentiments of the Company and the officials of the Union. According to the Company' s witnesses, the decision to discharge Rowden was made solely by Betz. Zickovich simply assented to Betz' decision when he was apprised of it. While this decision was reviewable by Treen and Trelc, and they concurred, it was still, as they testified, Betz who decided to discharge Rowden. A. O. SMITH CORPORATION, GRANITE CITY PLANT 387 Betz's testimony thus assumes primacy. Included therein are the following note- worthy features. The only information he had concerning the cafeteria incident was contained in the written statements of Lane and Rowden and Trelc's notes of his interview with Ropac, handed him by Trelc . Despite the fact he had only a short acquaintance with Rowden and did not at all know Ropac or Mrs. Lane, he accepted the versions of the latter two as truthful and rejected Rowden's version which was tantamount to a denial that he had struck Ropac or uttered profanity. His reason for this credibility resolution was "the logic of the statements ." In ex- planation he testified that he had been familiar with Rowden's habit of using forceful gestures. This familiarity was derived from the one or two occasions when he had observed Rowden violently shaking his finger or arm as he talked . With some difficulty Betz recalled that he had talked to Rowden about sports and lawn care and that at such times Rowden had used forceful gestures . Betz conceded that Rowden's actions then were not threatening and that he had not used profane language. He also recalled that Rowden had related to him that demands for the crane which he operated would sometimes simultaneously come from two sources, but could not say whether Rowden shook his finger in the course of this discussion or the others . In any event, as Betz' testimony developed , Rowden's finger-shaking habit was not involved in the incident, for, as Betz recalled , it was Ropac who had pointed the finger while talking. This, although Betz had not witnessed it, he characterized as the common habit of people who are making a point. Coming, finally, to Rowden's physical action, Betz referred to it first as a brushing and then a slapping motion by Rowden to force away the pointing finger of Ropac . Betz's demonstration of what he conceived that motion to have been did not give the impression of violence , but rather that Rowden had moved his hand in the manner of brushing away a fly. As to his view that Rowden's conduct , as he perceived it, was a. "serious" matter, Betz testified it was violative of the Company 's "Points of Good Order" and disrupted plant order. He then qualified this testimony by conceding that "plant order as such" was not disrupted and that the gravity of the conduct stemmed from the mere fact that certain of the "Points of Good Order " were violated. Asked to specify which violations of these points he deemed "serious," he listed excessive absenteeism , failure to follow instructions , possession of alcoholic beverages on company property, and fighting. He did not regard Rowden 's conduct as fighting and obviously it could not be equated with any of the other violations which he considered serious. Betz acknowledged that there was a range of discipline for violation of the Points of Good Order of 5 days suspension to discharge , and conceded that discipline for Rowden's conduct could have fallen within that range. He decided, he testified, on the maxi- mum punishment because of the several aspects in Rowden's misconduct, namely, the profanity,41 the threat to Ropac, and the physical contact 72 The Points of Good Order which the Company had published , and these are in evidence, provided no direc- tion concerning the administration of punishment for their violation. Such informa- tion was contained in confidential memorandums to supervisors . These were not placed in the evidence . Betz claimed he consulted these documents over the weekend while "mulling" over the Rowden case and that his decision in the matter was influenced by the Company's confidential instructions. When asked to relate what the confidential memorandums contained relative to Rowden's conduct Betz could not "exactly recall" and vaguely added that there were other points of order than those published and instructions pertaining to their administration which were discussed at the Company's staff meetings with supervisors . He did not specify or reveal how this entered his thinking that Rowden should receive the maximum penalty of dis- charge for his conduct. Pressed to explain why he had decided to give the maximum punishment to an employee who, so far as Betz knew , had violated the Company's' rules for the first time , although he had worked at the plant since it commenced operations, Betz explained that the past history of widespread disorder in the plant was a result of laxity in discipline. He first said that the period of disorder had, however, generally run its course by the end of 1956, and that from that time on there had been steady progress in maintaining plant discipline , and then pulled back from 'n The use of profanity is not even listed as a violation of the "Points of Good Order" Betz admitted that he has heard other employees speak profanely without complaining about them, and the Company concedes that employees speak profanely in the plant with- out being disciplined therefor See what has been related heretofore about Herzing's fre- quent use of profanity in the personnel area within the hearing of the girls employed there. 72 The physical contact was not mentioned in the written reasons for discharge given Rowden which was dictated by Betz. 614913-62-vol. 132-26 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that estimate and went as far the other way by declaring that plant discipline was not reasonably well in hand until 6 months before his appearance as a witness in January 1959. Asked to specify the factors on which he relied to support this asser- tion, he admitted he could offer nothing and this was "just a feeling" on his part. Asked to explain how the incident in the cafeteria contributed in anywise to plant disorder, Betz testified that because the Company had granted the Union permission to use space in the cafeteria for its private business and it had brought "outsiders" there for that purpose, he felt Rowden's "display" before these outsiders, consisting only of Mrs. Lane, should not be tolerated. It was this display, or at least "a portion of it," which led him to conclude that Rowden should be discharged. I reject Betz' explanation concerning the manner in which Rowden's discharge was accomplished. Betz was an amazing and incredible witness, who impressed me with his desire to mold his testimony to conform to the Company's defense rather than to tell the truth as he knew it. Furthermore, his testimony is so implausible and replete with squirming, shifting qualifications, withdrawals, and vagueness as to crucial matters that I deem it wholly unreliable and unworthy of credit. This conclu- sion is not based alone upon the garbled explanations he attempted to make, but also on his manner on the stand which challenged attention and I observed closely his demeanor as a witness. That the words and conduct ascribed to Rowden by Mrs. Lane and Ropac in the course of a private union argument between one rank-and-file employee and another, not at a place of work, not in the course of either's employ- ment, without being witnessed, or overheard, by any other employee, without in any way interfering with production should have been regarded by Betz as a breach of a rule of employee behavior so serious as to warrant the imposition of the most extreme penalty reserved by the Company for the punishment of employees committing the most aggravative offenses defies credulity. However, I do not believe that Betz formed a judgment that Rowden had committed the actions ascribed to him by Mrs. Lane and Ropac either through the exercise of his so-called "logic" or for any other reason. I do not believe that it was of any consequence to Betz what Rowden had actually done. I do believe that Betz was merely going through the motions with Treen and Trelc of creating a pretext based upon the cafeteria incident to conceal the Com- pany's true motive for Rowden's discharge. I am convinced that the real reason for Rowden's discharge was the Company's desire to rid itself of an employee who in his capacity as a union steward had irked the Company by vigorously opposing certain agreements between the Company and Herzing on behalf of the Union affecting the employees. His conduct in the cafeteria was but another demonstration of Rowden's independence of the Boilermakers' ruling clique. It served as a convenient means of getting rid of a rebellious employee whose opposition at times to the joint company and Herzing policies posed another obstacle to the unlawful arrangement which I discuss elsewhere in this report for the suppression by the Herzing group, with the assistance of the Company, of the statutory rights of its employees. Treen and Trelc sought by their testimony to create the impression that they had only participated passively in the decision to discharge Rowden by their concurrence with Betz. I have discredited Betz' testimony including any implication therein that the decision to discharge Rowden represented his independent judgment. I am con- vinced that if Betz went through the motion of advising Trelc on December 16, 1957, that he had decided to discharge Rowden that he was merely adding form to what he understood was an accomplished fact on December 13, 1957. The absurdity of Betz' explanation for his alleged decision convinces me he never gave serious consideration to the matter and in fact understood what was expected from him from the moment Trelc came to him to advise that Treen regarded Rowden's conduct as "serious." The Company's brief tersely sums up its turbulent labor history by claiming it had been "dominated" by its employees. This summation refers to a period when at least in part Herzing and his clique were the ruling power of the Boilermakers. It would be more accurate during the period relevant to the events of this case to emphasize the dominant power of the Herzing clique over the employees and even over the Company's foremen and its higher supervisors. This situation, as shown by the record, was so notorious in the plant that Betz could not have failed to appre- ciate the true meaning of Trelc's message from Treen. When Trelc handed him the results of his investigation and communicated Treen's "serious" view of the cafeteria incident, Betz had a clear signal from Treen of the disposition he was expected to make of the case and acted accordingly by recommending Rowden's discharge. I am satisfied that Treen and Trelc in this instance, as in others appearing in this case, participated in Rowden's discharge with the intention thereby of appeasing Herzing's desire to weed out those who dared to oppose him or his policies. This policy of appeasement, on the part of the Company, was evidently prompted by the hope that by maintaining the strength of Herzing and his henchmen in their domi- A. O. SMITH CORPORATION, GRANITE CITY PLANT 389 nation and control of the Boilermakers and by weakening or eliminating their critics and opponents, tranquility in the plant would be best preserved. Rowden was regarded with distinct displeasure by both Treen and Treic. Both looked upon him as a troublesome person because of his vocal dissents from agreements reached by Herzing with Treen on matters affecting employees. Thus, at a meeting between the Company and the Boilermakers held early in December 1957, only a few days before the December 13 incident, Rowden in his capacity as a steward and another employee, but particularly Rowden, had expressed dissatisfaction with the presenta- tion of a seniority agreement 73 reached by Treen and Herzing. Treen regarded Rowden as having been less openminded and responsive to his logic than any other person at the meeting. Treic also recalled that Rowden had differed with Treen at the December meeting and characterized Rowden as a very outspoken person who speaks what is on his mind. Treen had the impression that over a period of 2 years each time there was a meeting of employees concerning some problem with management Rowden was in evidence. With such incidents in mind he referred to Rowden as a "problem employee," one who was at times "a problem to manage" and about whom consequently "there was sufficient justification for his superiors to come .to a conclusion that he should be discharged." This impression of Rowden was so vivid that Treen could not recall the identity of any other employee in these gatherings concerning union-management affairs or even when they occurred except for the December 1957 meeting above described. Although Treic conceded that in determining whether an employee should be dis- charged for a violation of the Points of Good Order, his employment record some- times bears great weight, but in his "thinking" Rowden's record with the Company was not entitled to any weight. He conceded that Rowden was a "good workman," according to his record, but questioned whether he was a "good employee." The significance of the difference, whatever it may be, he did not make clear.74 As to Rowden's record, and the attention given it by Treic and Treen as they conferred before his discharge, there is the following testimony from them which casts some light upon the lack of consideration given his case by them, and also upon the general credibility of Treen. Early in the case Treen had testified that he had examined Rowden's personnel file and had considered his past history in forming a judgment as to whether he should be discharged. He further testified that he had then found a document in that file bearing no date but revealing that Rowden had in 1956 been involved in a dispute with another employee and had been instructed by his foreman to return to work with the admonition that further fighting or arguing would subject him to discharge. Treic, who was familiar with Rowden's record, offered no testi- mony concerning such a document in his file. Furthermore, he testified, as already noted, that Rowden's record was good and he would undoubtedly have mentioned the document had it been in the file at the time in question. Nor could he recall ever receiving any report that Rowden had threatened another employee. Finally, Treen at a later point in the hearing testified that he had no recollection of looking at Rowden's file before his discharge although he did so later. I am convinced that Treen did not examine Rowden's file before his discharge and had no knowledge at-the time of the existence of the document adverted to by him, assuming it was in existence and in the Rowden file prior to his discharge. I regard this abortive attempt to muddy Rowden's record as an indication of Treen's desire to improvise a a justification for his part in Rowden's discharge. Trelc's cavalier shrugging off of Rowden's unblemished record as a mitigating factor, in violation of common in- dustrial procedures as well as those "sometimes" followed by the Respondent Com- pany, is indicative of the fact that his mind as well as Treen's was committed from the start to discharge Rowden regardless of any mitigating circumstances in his behalf. Treen and Treic knew that the cafeteria incident involved a dispute between Rowden and Ropac about a strictly union matter, that what occurred between them was in no way related to the work for which .the Company paid them, that whatever took place did not interfere with production, and that it was not even witnessed or 73 This was an entirely separate and different matter concerning certain seniority rights than the agreement altering section J, article VII, of the current contract involved in the layoff of Randolph hereinafter discussed. 74 The only reason at all indicated for thus branding Rowden as not being a good employee is that he would put in an appearance at these meetings between management and union representatives , referred to by Treen and Treic, and question , and argue with, Treen and Herzing about agreements, or contract interpretations , affecting the employees, which they had entered into. Nowhere is it said that Rowden was not rightfully present at such meetings, or that he was an interloper not entitled to attend same 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD overheard by any other employees 75 Even if Treen and Trelc had really believed that Ropac's and Mrs. Lane's statements were accurate and that Rowden's version of the incident was false, they must have realized that the imposition of the most extreme penalty for such conduct was, under their own rules, extraordinarily harsh. In these circumstances I am convinced that the reason assigned by Treen and Trelc for this remarkable action is pretextual. If, as they claimed, they were bent upon a "tough" disciplinary policy to quell recurrence of former plant disorder, it is indeed peculiar that Rowden' s was practically the only case of discharge under the Points of Good Order ever made for misconduct of the type with which he was charged, especially when as shown by the record Herzing had on one occasion committed a serious assault in the plant on another employee which the Company blithely dismissed as unproved, and this despite a finding by the Board's Trial Ex- aminer, after a public hearing, the making of findings in accordance with the strict requirements of the Administrative Procedures Act, and the recommendation of an order against Herzing and the Boilermakers to which they did not file exceptions. In that instance Trelc's so-called investigation consisted only of interviews with Herz- ing and an interested union official, Ropac, who was discredited by the Trial Ex- aminer, and excluded an interview with a disinterested employee who testified at the hearing before the Trial Examiner and who gave testimony on which the Trial Examiner relied in finding that Herzing had committed the assault. Not only did the Company fail to take any disciplinary action of any kind against Herzing as a result of that incident but it also failed to act against Herzing on another occasion when he interfered with the work of an employee causing the production line to be stopped, and engaged in a heated argument with the employee accompanied by shouting, shoving, and finger waving which continued until the foreman came be- tween the two, and told Herzing to leave the department. Nor was action taken by the Company against any of the Boilermakers' officials who according to the record violated the Company's rules by leaving work without passes. I am constrained to find that the real reason for the disparate treatment accorded Rowden flowed from the Company's animus toward him because of his unwillingness to subordinate his independence of thought and word to the Boilermakers' autocracy in the plant, and the Company's acceptance and support of the Boilermakers' officials in their ruthless suppression of the statutory rights of its employees. Accordingly, I find that the Company by discharging Rowden violated Section 8(a) (3) of the Act. As to the allegation that the Boilermakers caused or attempted to cause the Com- pany to discharge Rowden, there is no evidence of such conduct except the report by Herzing to Treen that Rowden had struck Ropac. While I have no doubt that Herzing devoutly hoped the Company would discharge Rowden as well as any other employee or supervisor who refused to knuckle under his authority, I do not regard this hope or the meager evidence of his report to Treen as sufficient to base a finding thereon that he caused or attempted to cause the Company to discharge Rowden. I shall, therefore, recommend that the allegation of the complaint that the Boiler- makers violated Section 8(b)(2) of the Act in connection with Rowden's discharge be dismissed. The Unlawful Demotion and Layoff of William Randolph The General Counsel contends that the Boilermakers caused the Company on November 4, 1957, to demote Maintenance Foreman William Randolph to status as a rank-and-file employee and that the Company's employees were thereby coerced and restrained by the Boilermakers in violation of Section 8(b)(l)(A) of the Act. The General Counsel further contends that this demotion of Randolph by the Com- pany to appease the Boilermakers constitutes unlawful assistance of that labor organization in violation of Section 8(a)(2) of the Act and interference with, co- ercion, and restraint of employees in violation of Section 8(a)(1) of the Act. Ran- dolph was subsequently laid off on January 17, 1958. The General Counsel con- tends that the Boilermakers in violation of Section 8(b)(2) of the Act caused the Company to take this action, and that the Company, again acting to appease the Boilermakers, thereby violated section 8(a)(3) and (2) of the Act. The Company and the Boilermakers deny that the demotion and layoff of Randolph occurred for the reasons asserted by the General Counsel and offered legal justification for each action. 76 The cafeteria is operated by Nationwide Food Services as an independent contractor. The cafeteria personnel are employees of Nationwide, but no cafeteria employee even saw or heard anything that happened during this trivial argument between Rowden and Ropac about a union matter A. O. SMITH CORPORATION, GRANITE CITY PLANT 391 The Unlawful Demotion Randolph has been mentioned many times previously in this report , particularly in connection with the recital of conduct and activities of Boilermakers President Herzing. The foregoing recital demonstrates the free hand given Herzing by the Company in assisting him to maintain his power and that of his clique over the Boilermakers Union by ruthlessly suppressing any criticism of their policies or of their conduct whether by employees or management representatives, and in like manner to crush any movement by groups of employees opposing them or support- ing rival labor organizations . Randolph, as already related , for months before his demotion on November 4, 1957, was listed by Herzing as among the first, if not indeed the topmost, of his enemies marked for disposal. Recapitulating briefly, these are the circumstances , as credibly related by Randolph, which whetted Her- zing's resentment of him and which exposed Herzing's determination to punish Randolph and to get rid of him: 1. Following employee Hogan's report to Randolph in June 1957 of Herzing's threat of job loss and assault, Randolph reported the incident to Maintenance Superintendent Burton and requested that Herzing be restricted in his movements through the plant and required not to interfere with productive operations. Ran- dolph at Treen's instruction located Herzing and directed him to call Treen immedi- ately. It may fairly be assumed that Treen informed Herzmg of this as well as other complaints against him by Randolph. 2. After employee Gardner was physically threatened by Herzing in July 1957, Randolph submitted another report to Assistant Maintenance Superintendent Byrd In a written report Randolph requested that Herzing be required not to interfere with the changeover operations then being performed and not to molest and threaten employees. 3. In the latter part of July or early August 1957 Herzing accused Randolph and three other foremen who were present of having tried to persuade the Company to put him back to work as an ordinary employee. Herzing was alluding to a meeting of the Company's foremen which had been held earlier during which there had been complaint against carrying Herzing on the department 1056 seniority roster although he did no work in that department. Despite Randolph's denial of the accusation, Herzing threatened him and the other foremen present that he would "see [them] all out on Highway 67." This clearly meant that he would see that they were discharged. 4. In July 1957 Superintendent Burton told Randolph that he had reports of his leadership of the Carpenters' movement in the plant. Herzing's violent and effec- tive suppression of employees believed by him active in this movement has already been related . Burton admitted that his reports of Randolph's connection with the Carpenters came from Herzing. Randolph denied the truth of the report , but was nevertheless admomshed by Burton to return to work and to "keep [his] nose clean," meaning thereby to avoid involvement with the movement. About 2 weeks later Burton advised Randolph that Treen and Trelc had received additional reports of his Carpenters' activities . Later Randolph was summoned by Treen and Trelc who discussed with him the Carpenters' movement and solicited his denial of any part therein. Further indication of Herzing 's retaliatory state of mind concerning any foreman or official , including Randolph, who offended him, is derived from the credited testimony of Foreman McIntosh and employee Gardner which I have detailed in my earlier recital. As related by McIntosh, Herzing was so infuriated at a meet- ing in October 1957 between the Boilermakers ' officials and company representatives concerning a complaint involving Steward Rocky Mayes, that he pounded the desk and demanded that various company officials and foremen , including Randolph, be fired. Treen was present on this occasion . Gardner recounted how Herzing at the wage negotiating committee meeting attended by the Company's vice president, its plant manager, and Treen had accused Randolph and his brother -in-law (Will- more) of trying to form a new union and causing trouble within the Boilermakers and stated that Randolph should be fired. Regarding the circumstances surrounding his demotion , Randolph credibly testi- fied that on October 31, 1957, he was told by Charles W. Harp , head of the main- tenance department, that he, Randolph, was being demoted on November 4 to rank- and-file status because of "continued union pressure," and that if this pressure were to later lift he would "be returned to supervision ." Randolph asked whether his demotion had been urged by Herzing , but Harp would neither confirm nor deny this. Upon return to his working area , Randolph was greeted by General Foreman Warren who shook his hand and remarked , "It is the first time I ever seen where a 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union could get a man kicked out of supervision and back to his tools." 76 Warren offered to give Randolph a letter of recommendation or even personally to go to another plant, Granite City Steel, to tryto get him a job as a supervisor. The next day Assistant Superintendent Byrd said to Randolph, "I didn't think they could get the job done but they sure did." 77 It is clear that Byrd was referring to Herzing and his cohorts as were Harp and Warren when they referred to the "union." Harp denied that he told Randolph his demotion resulted from union pressure. He testified that it was caused alone by operational changes which he had recom- mended months before Randolph's demotion with the consequent necessity for reducing the size of the maintenance supervisory staff. In his direct testimony Harp explained that Randolph had been the only maintenance foreman selected for de- motion because he was "one of the few" that could be sent back to a rank-and-file job on the basis of his former service as, hourly rated employee. He related he had stated this to Randolph on October 31 when he informed him of his demotion, and had also pointed out to him that by continuing to work for the Company as an hourly rated, employee, Randolph would be 'available for return to duty as a foreman should the Company expand its supervisory staff in the future. Harp claimed that he had recommended a reduction of 6 foremen from the staff of 21 maintenance foremen and that the Company had decided to accomplish this result by degrees. At the start two or three foremen were to be eliminated. Although the "exact decision" to demote Randolph was not made until 2 or 3 days before October 31, Harp explained that a plan involving his demotion was put in opera- tion about October 1, wherein he was assigned "isolated" or "mop-up" duties so that when he was demoted there would be no disruption of the Company's organiza- tion. In his cross-examination Harp testified that the decision to eliminate 2 or 3 foremen was made in July; that selection of the particular foremen to be eliminated was not reached until mid-October or near the end of that month and then it was decided that only Randolph was to be picked for demotion; that before then 4 or 5 specific foremen, including Randolph, were being considered as the group from which selections should be made and that these foremen had been placed in a cate- gory consisting of those with the least ability on the entire staff of 21 maintenance foremen; and that of these 4 or 5 Randolph had the least ability. It would appear that were this so, Harp would have had sufficient reason logically to demote Ran- dolph rather than any other foreman without regard to whether he rather than the others could have stayed on as a rank-and-file employee. But Randolph's lack of ability seemed not to have been sufficiently supported by Harp's testimony, for he conceded that Randolph's work was satisfactory "as far as his abilities went" and, although there had been some complaints about a showing of favoritism to em, ployees by Randolph, Harp's investigation had not substantiated these complaints. Thus by Harp's own testimony it seemed that he had no basis for concluding that Randolph had been the least competent of all the maintenance foremen. It was after this testimony that Harp for the first time claimed that Randolph had been rated the least competent or qualified of all the maintenance foremen on the basis of the "opinions of the general foremen these people reported to." For this reason, he now testified, and because he could return to duty in the ranks, and the other foremen "would possibly have to go out on the street," Randolph was the logical choice for demotion. Curiously, while Harp claimed he had reviewed the files of all the maintenance foremen in preparation for the reduction and had discussed Randolph's eligibility for return to an hourly rated job, he had not checked the records of other foremen to ascertain whether they too had come up from the ranks and were entitled to return to them. This testimony was revised by his assertion that the personnel department spoke to him only about Randolph and revealed his eligibility to return to the ranks, and this was next qualified by his testimony that Randolph was the only one he had inquired about. However, in a later answer to the Trial Examiner's question he claimed he had inquired about the seniority eligi- bility of the four or five foremen he classed in the least competent group. Of these he was sure that. two had no accrued seniority as rank-and-file employees though not certain about a third. No mention was made of the fourth foreman whom he placed in the least competent group with Randolph whose name Harp did not even remember. Harp significantly testified at the last that the ratings of foremen by 7e Warren denied having made this remark to Randolph However, in his later testi- mony, under questioning by the Trial Examiner, he admitted that he had conversations with Randolph at the time in question but could not remember what he said on these occasions I credit Randolph's testimony that Warren had made' the remarks ascribed to him 77 This is undenied Byrd was not called as a witness A. O. SMITH CORPORATION, GRANITE CITY PLANT 393 the general foremen were "wholly verbal." It is appropriate here to report that General Foreman Warren under whom Randolph had worked as foreman before his demotion had been asked by Superintendent Burton to rate all the maintenance foremen about a month before Randolph's demotion. Warren testified without con- tradiction that he had presented a written report to Burton in which the second place in order of highest competence was accorded by him to Randolph.78 I have credited Randolphs account of what Harp said to him on October 31, when he was informed of his demotion, and find that Harp told him his demotion was the result of "union pressure" which in the circumstances of this case meant pressure from the Boilermakers. I have credited Randolph over Harp because the former by a wide margin impressed me as the more credible witness. Randolph was direct and spontaneous in his responses to questions from all counsel whether during the direct or cross-examination . He was consistent throughout his entire testimony, and convinced me of his desire to testify truthfully. Harp, by contrast, was equivocal, vacillating, and self-contradictory. Serious doubt as to his veracity was also raised by Warren's contradiction of him on a vital point. Finally, while both Randolph and Harp testified that Superintendent Yeager and Assistant Super- intendent Byrd were present on October 31 when Harp informed Randolph of his demotion, neither Yeager nor Byrd was called by the Respondent to contradict Randolph and to corroborate Harp. Oddly, while Randolph was being cross- examined by the Company's counsel it was dramatically pointed out to him that Yeager and Byrd were seated in the hearing room. Randolph did not retreat from his testimony or appear in any way to have been disturbed because their presence was brought to his attention. I confidently expected, in view of counsel's gesture, that Yeager and Byrd would be called to refute Randolph's testimony and was sur- prised when they were not. No explanation was offered for counsel's failure to have them testify. It may reasonably be assumed, as I do, that they were not called as witnesses because their testimony would have been unfavorable to the Company. The foregoing findings so clearly show that Randolph was demoted by the Com- pany because it was so willed by Herzing, and hence the Boilermakers, that ela- borate discussion is needless. The proof is overwhelming that Herzing brooked no interference with his autocratic reign over the Company's employees, and that he swiftly and unremittingly retaliated with physical assault, threats of economic repri- sal, and pressures on the Company against any person, employee, or management representative who deigned to interfere with him. Herzing had marked Randolph for extinction because he regarded him as a leader in the Carpenters' movement and in the dissident group. He resented Randolph's protection of employees from molestations by himself and his lieutenant, Rocky Mayes, and had openly expressed his intention to get him out of the plant. As will be shown, Randolph's demotion in November was a first step leading ultimately to his layoff less than 2 months later. As for the Company's motives for demoting Randolph, it is not necessary to go beyond consideration of Harp's admission in his remarks explaining the demo- tion to Randolph as a surrender by the Company to pressure from the Boiler- makers. This was but another example of the Company's abject capitulation to Herzing's demands at the expense of employee rights, all in the belief that by bolstering Herzing's power in the Boilermakers the Company would gain stability in its plant, and that failure to placate Herring by appeasing his demands for re- prisal against his opponents would lead to resumption of former disorders. In the prevailing atmosphere of the Company's plant it was inevitable that the employees should regard Randolph's demotion as symbolic of what would happen to him if they, in the exercise of their statutory rights, were to oppose Herzing and his ruling group. If Herzing was powerful enough to require the Company to punish a fore- man who dared stand up to him, what chance would a plain rank-and-file employee have in a contest with him? The answer to employees who realized the obvious meaning of Randolph's demotion was that they had no chance. The clear message to them was that protection of their jobs required abandonment of all union activities which would incur Herzing's displeasure. The threat to their job security if they opposed him as demonstrated by his wield of power over the Company to cause Randolph's demotion, was as plain as if the employees were told directly by Herzing that they like Randolph would be similarly punished for resisting him. Union threats to the job security of employees, whether by conduct or words spoken directly to them, which are reasonably calculated to coerce employees in the exercise of 78 Randolph testified that General Foreman Warren told him that he (Randolph) had been rated first in the competency ratings on four lists and second on the fifth In his testimony Warren did not deny that he revealed these ratings to Randolph, as Randolph stated. I credit Randolph's testimony that he did 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their rights guaranteed by Section 7 of the Act to continue or to abandon their allegiance to the Union, are violative of Section 8(b) (1) (A) of the Act.79 Having caused the Company to demote Randolph in order to compel employee allegiance, the Boilermakers violated Section 8(b)(1)(A) of the Act. By demot- ing Randolph further to entrench the power of the Boilermakers in the plant and more firmly to discourage employees from exercising their statutory right to oppose the Boilermakers or to support other labor organizations, the Company gave mate- rial assistance to the Boilermakers in violation of Section 8(a) (2) of the Act. By the coercive effect of this action upon the exercise of Section 7 rights of employees, the Company's conduct also violated Section 8(a) (1) of the Act.80 The Unlawful Layoff of Randolph Randolph was laid off from his rank-and-file job on January 17, 1958. The cir- cumstance precipitating his layoff on that date was a change by the Company and the Boilermakers in a seniority provision of their contract which was reduced to writing and signed on January 16, 1958, the day before the layoff. The effect of this change was to deprive Randolph of seniority credit for the time during which he had worked for the Company as a foreman in a supervisory capacity and thus to leave him with credit only for the time he had spent as a rank-and-file employee before he had become a foreman. As already noted, Randolph had been notified of his demotion from his foreman's job on October 31, 1957, and had been trans- ferred to duty as a rank-and-file maintenance employee on November 4, 1957. On November 2, 1957, the Company had laid off 39 maintenance employees. Because the agreement changing the seniority clause was made retroactively effective to February 7, 1957, Randolph's seniority standing on November 4, 1957, was affected by it, notwithstanding that his demotion to the ranks of hourly rated employees occurred before adoption of the seniority change. Thus, as viewed by the Company and the Boilermakers, Randolph's seniority as computed on January 17, 1958, would not have been sufficient to have saved him from layoff on November 2, 1957, had he then been in competition for job retention with other maintenance employees reduced in force at that time. Thus it appears that according to the requirements of the modified contract, made retroactively effective as of February 7, 1957, Ran- dolph on January 17, 1958, held a job to which his seniority did not entitle him. He was, so the Company and Boilermakers maintain, justifiably laid off for this reason. On the contrary, asserts the General Counsel, Randolph was not laid off for this reason but because his leadership in the dissident group and his continued opposition to Herzing's reign, maintained with the Company's unlawful support, had made his presence in the plant even more undesirable to the Company and to the Boilermakers than before. According to the General Counsel, the altera- tion of the seniority clause in the contract was an improvisation designed to provide a semblance of legality to the Company's and the Boilermakers' riddance of Ran- dolph for his part in the and-Herzing campaign then being vigorously waged by the dissidents spearheading the deauthorization movement. The contract in force on February 7, 1957, subsisted throughout the entire period relevant to the question at issue. As originally included in the contract, of May 6, 1956, the pertinent seniority clause provided in section J of article VII: Employees transferred to other jobs outside the bargaining unit may return to their former jobs without loss of seniority provided their plant service has not been broken. This clause was construed by the Company to mean that rank-and-file employees, such as Randolph, who were promoted to jobs as foremen and who later were re- turned to rank-and-file status in the bargaining unit represented by the Boilermakers, were to be credited for seniority purposes for the full time they had worked as fore- men. The clause was consistently so applied by the Company with serious objection from the Boilermakers. According to Treen, the return to the unit of five super- visors on September 10, 1956, had touched off differences with the Boilermakers which were discussed in several meetings in the ensuing weeks. The Boilermakers had then insisted that no seniority credit be granted for time worked in a super- visory capacity after the representation election of February 14, 1955, pursuant to which the Boilermakers had been certified, and that no one who had been a super- visor before that date should have the right to return to a rank-and-file job in the 79 Smith Cabinet Manufacturing Company, Inc, 81 NLRB 886; Seamprufe, Incorporated, 82 NLRB 892. 80 Inter-City Advertising Company of Greensboro, N C, Inc, 89 NLRB 1103: N L R B v. Vail Manufacturing Company, 158 F 2d 664 (C A. 7), cert. denied 331 U S 835, rehearing denied 332 U.S. 826. A. O. SMITH CORPORATION, GRANITE CITY PLANT 395 bargaining unit. The Company agreed to study the Boilermakers' position. Treen felt that were the Boilermakers to file a grievance that the Company's opposing view would prevail in arbitration. In late January or early February 1957, the Company again returned five foremen to the bargaining unit. This action met with the Union's disapproval. On Febru- ary 7, 1957, the Boilermakers filed three grievances based upon the return of the five foremen to the bargaining unit with seniority credit for the time they had served as foremen. These grievances went through the preliminary stages without settlement to the point where on February 28, 1957, the Boilermakers requested arbitration. On March 15, 1957, Treen by letter requested from the Company's home office in Milwaukee a list of arbitrators, and on March 19, 1957, he received such list. De- spite these steps the grievances were not brought to arbitration and were not again discussed by the Company and the Boilermakers until December 1957. Although Treen at one point in his testimony sought to create the impression that the modi- fication of the clause signed on January 16, 1958, had been preceded before De- cember 1957 by "a good many meetings and a good many discussions over a long period of time," I am convinced that the matter was dormant after the request for arbitrators in February and March 1957 until its revival in December 1957. Treen could not recall any specific meeting to discuss the grievances during that inter- vening period and his records revealed no reference to such meetings. Furthermore, in his prehearing affidavit Treen had stated that the grievances were not pressed after the request for arbitration. To explain the delay in disposing of the grievances, Treen related the mounting labor relations problems in the plant during 1957 and the accumulation by De- cember of 18 undisposed arbitration cases of which the 3 grievances filed February 7, 1957, were among the oldest. Treen said that in that month he attempted to clean up the arbitration backlog and tackled these three grievances first. He testified to a number of conferences in December 1957, in which the Company tried to persuade the Boilermakers to accept its view and when that failed Treen said the Company proposed and the Boilermakers accepted a modification of the disputed seniority clause by adopting the clause covering the same subject in the contract negotiated on March 30, 1957, by the Company with the International Brotherhood of Electrical Workers for the employees represented by that labor organization in the plant 81 To the clause in the IBEW contract the Company and the Boilermakers added a Febru- ary 7, 1957, retroactive date to coincide with the filing date of the grievances Al- though the agreement was reached, as claimed by Treen, sometime in the "last week of December," it was not reduced to writing and signed until the January 16, 1958, meeting between the Company's representatives and the members of the Boiler- makers' grievance committee.82 Attorney John M. Schobel, who is a partner in the law firm representing the Boilermakers in this proceeding, testified that in mid-November 1957, he met with Herzing who retained his firm to handle, among other matters, the arbitration of the pending grievances. According to Schobel, he subsequently discussed these griev- ances with the Company's attorney. Schobel said that he believed that the Com- pany had misconstrued the Boilermakers' position with respect to the grievances, and that the Company had erroneously though that the Boilermakers wanted super- visors returning to rank-and-file jobs to be deprived of all seniority including that earned during former service in the ranks, whereas the Boilermakers really were opposing the grant of seniority only for time spent by the returning foremen in their former supervisory capacities.83 Schobel testified that on December 27, 1957, he met 81 Article 6, section 6 of the IBEW contract provided, "If an employee within the bargaining unit is transferred to a position outside the bargaining unit and is re- transferred into the bargaining unit within 90 days he shall be credited with seniority equal to the seniority he had while employed in the bargaining unit plus the time spent outside the bargaining unit. If such employee remains outside the bargaining unit more than 90 days, he shall be credited with seniority for time in the bargaining unit only " 82 Signed on the part of the Union by Herzing, president ; Warfield, vice president; and Brown, Lacewell, and Smith, the last three being grievance committeemen The written agreement states that it is a full settlement of the three grievances (numbers set out) filed February 7, 1957. 83 Except this puzzling statement by Schobel, there is nothing to be found in the evi- dence to indicate that there was ever the least misunderstanding on the part of the Company as to what the Union's position was. On the contrary, the evidence shows, without variation, that from as far back as at least September 1956, the issue was clearly and plainly drawn between the Company and the Union and that each understood the other's position 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with Treen and others and that at that time he explained the Boilermakers' position as just stated, whereupon Treen agreed to a settlement of the grievances on that basis.84 Schobel testified further that pursuant to the Boilermakers' request it was then agreed to make the settlement effective as of the date of the filing of the grievances. Upon the conclusion of these oral arrangements , Treen advised Schobel that he must first communicate with the Company's Milwaukee office, presumably to obtain authorization for the settlement , and that the signing and final disposition of the settlement agreement would accordingly be deferred . Schobel's connection with the matter ended at this point. Before the meeting of January 16, 1958, when the agreement settling the grievances was signed by representatives of the Company and the Boilermakers ' grievance com- mittee, the Company, at Treen's direction, had prepared a document , dated Janu- ary 14, 1958, to show the seniority of all supervisors who, after April 18, 1955, had been transferred from the ranks . This document reflected the seniority time which Randolph would lose by the retroactive application of the contract modification. It was readily ascertainable from the Company 's records that the deprivation of seniority would lower Randolph's seniority standing among the maintenance employ- ees with whom he would have been in competition in November 1957 so that he would then have been caught in the layoff instituted at that time. Randolph credibly testified that on January 15, 1958, the day before the signing of the so-called settlement agreement, he had a conversation with employee Harry Smith who was a member of the Boilermakers ' grievance committe participating in the signing of the settlement agreement . Smith informed Randolph that he (Ran- dolph ) was going to be laid off according to an announcement that day by Herzing, and agreed with Randolph that Herzing had at last found a way to get rid of him. It was clear from this conversation that Smith was referring to the settlement agree- ment as the means Herzing was relying upon to get rid of Randolph . The General Counsel vigorously argues, particularly in view of the above circumstances, that the Company and the Boilermakers did not make their agreement until January 16, 1958, when the Company's representatives met with the Boilermakers' grievance committee and signed the document containing the agreement . The General Coun- sel appears to believe that the making of the agreement on that date more con- vincingly demonstrates the contrivance of a scheme to get rid of Randolph than would be the case were it proved that the agreement was reached at an earlier time in late December 1957. It do not share this concern with these dates . In conclud- ing that Randolph was unlawfully laid off by the Company and that the Boiler- makers in violation of the Act caused or attempted to cause his layoff, it is of little or no significance that the agreement between the Company and the Boilermakers was reached in late December 1957 (December 27) or on January 16, 1958. The patience of large numbers of the Company 's employees with Herzing's tyrannous suppression of their statutory rights, of which so much has been written in this report, reached the breaking point in mid-December 1957. Spurred by Rowden's discriminatory discharge on December 16, a rebellious plan of action took form, and the night of the day of Rowden's discharge a meeting was held at Hogan's house, which had for some time been the headquarters for employees opposed to the Herzing regime. This meeting was attended by 20 to 25 employees who selected a committee under the apparent leadership of Hogan and of which Randolph was a member. As heretofore related, this committee visited an attorney and sought advice about how to get rid of Herzing, as a union official . It was then that the idea was conceived of trying to rescind the union -shop provisions of the current contract and the authority of the Union to make such an agreement. Treen testi- fied that late in December or early in January 1958 , he had been informed by Her- zing of a "deauthorization" movement which Herzing told Treen was a plan to bring another union into the plant to be headed by Hogan and Randolph. By January 9 , 1958 , the deauthorization movement was in practical operation with Ran- dolph actively engaged in its promotion and openly soliciting employees' support in its behalf. Herzing received current information of these activities from his spies who scouted the areas where the dissident groups met to further their cam- paign . Treen was directly informed by Herzing of his intelligence reports with specific reference to the activities of Randolph, Hogan, Paschedag , and others. Treen's own emissaries reported to him and he was informed by foremen that they had seen Randolph and Hogan at various times and places outside the plant passing out deauthorization cards to employees It was evident to him that Ran- dolph was a leader in a movement which caused him concern because he feared it might produce work stoppages or slowdowns . He had learned how on January 11 84 Treen's ` version of how this modification agreement was arrived at has been stated A. O. SMITH CORPORATION, GRANITE CITY PLANT 397 Randolph had been ejected from a meeting of the Boilermakers by Herzing, and could not escape knowing Herzing's bitter and long-standing animosity toward Randolph. The mounting crisis faced by Herzing and his ruling circle again evoked Treen's help, and once more he came to Herzing's aid by granting permission to distribute to the employees within the plant premises literature attacking the decerti- fication movement and by furnishing expense free to the Boilermakers IBM address slips to be used in mailing literature to the employees in the fight against the move- ment. I have no doubt that Treen knew of the notorious liberties taken by the Herzing group in soliciting revocation cards, within the plant, from employees at their jobs. These acts of unlawful assistance to the Boilermakers in combatting the dissidents coupled with the Company's past willingness to support Herzing by getting rid of his opponents, even if this involved violations of the Act, are com- pelling proof of the Company's desire shared by the Boilermakers to dispose of Ran- dolph for his dissident activities engaged in during December 1957 and January 1958, concerning which there is no doubt on this record that the Boilermakers had acquired knowledge through, extensive surveillance of dissident activities as far back as November 1957. If Herzing knew of Randolph's activities, unquestionably Treen also knew, for, his own testimony shows that Herzing kept him abreast of such information. No imagination was required by either the Company or the Boilermakers to ap- preciate the effect of the retroactive application of the agreement upon Randolph. Neither side could have been ignorant of the fact that from the time the three grievances were filed, on February 7, 1957, to the time when the agreement was negotiated that only Randolph had been transferred from supervision to the ranks. This is emphasized by the circumstances expressly related to Randolph's seniority when he had been transferred to the ranks less than 2 months before these negotia- tions. The conclusion is inescapable that both sides knew that Randolph would lose seniority by the retroactive application of the agreement and that no precise computation of that seniority loss was ever required to reveal that he would be vulnerable to layoff if the agreement were applied as it ultimately was on January 17, 1958. What could correctly have been estimated in December without resort to precise data was statistically established by January 14, 1958, so that it was shown then with absolute certainty that Randolph would, in November 1957, have been vulnerable to layoff by virtue of his lost seniority. This raises the ob- vious question of why the retroactivity feature was included in the agreement. It is remarkable that while there is explanation for the origin of the grievances, and the delay in disposing of them, and how the Company and the Boilermakers compromised their differences, not a word was offered by either of them to explain why the settlement was made retroactive. The only testimony concerning the in- clusion of retroactivity came from Schobel who stated merely that the Boilermakers asked for and secured retroactivity to the date of the filing of the grievances, and Treen's equally unrevealing testimony that it was agreed to make the settlement effective as of February 7, 1957. 1 have studied the record to determine whether some reason of practicality or necessity could be derived to provide a justifiable ex- planation for the retroactivity provision. I find none. It had occurred to me that protection of the five foremen concerning whom the grievances were filed from application of the settlement to them could be the reason, but this protection could have been offered merely by making the settlement prospective in application. Be- sides, if the Company was concerned with equity for these five foremen, could it .sincerely have had less concern for Randolph's protection, particularly as Randolph had been selected by the Company on October 31, 1957, for return to the ranks, so it had told him, because his seniority as a rank-and-file employee would guaran- tee him a job for which other foremen who might have been selected for demotion would not be eligible. And, if the Company was less concerned with protection for Randolph than the other demoted foremen, how is that explained? Only, by the conclusion which I reach that it had no such concern for him because it desired along with the Boilermakers to eliminate him. The complex retroactive applica- tion of the altered seniority clause fulfilled that desire, and thus Grievance Com- mitteeman Smith's prophecy that Randolph would be laid off because Herzing had found a way to get rid of him became reality. I find that whatever other reasons the Company and the Boilermakers had for altering the seniority provisions of their contract, that an inherent reason shared by both was the intention to devise a method to get rid of Randolph because of his continued opposition to Herzing and his activities in the movement to unseat Herzing and his clique, and the retroactivity provision made part of the contract alteration was designed only with Randolph in mind . The layoff of Randolph by the Com- pany for such reason was violative of Section 8(a)(3) of the Act. By this con- duct which materially assisted the Union by restraining and coercing employees in 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their right to oppose the Union, the Company also violated Section 8(a)(2) of the Act. The causing or the attempt to cause this layoff for such reason by the Boilermakers was violative of Section 8(b) (2) of the Act. The Picketing Since even before, but more particularly during and since the Carpenters' move- ment which commenced in March 1957, Randolph, Hogan, Paschedag, Willmore, Gipson, and others of the dissident group of Boilermakers generally, as well as many employees not generally so listed, were aware, and were constantly reminded of Herzing's ever-increasing influence with and power over management, and what- ever the motivating reason may have been, management's disposition more and more to yield to Herzing's demands, including even economic reprisals, concerning those whom he termed and deemed his enemies, and of management's policy of lending assistance to the Herzing group in its efforts to crush and suppress opposi- tion. In that connection not only were Herzing and his henchmen given carte blanche to roam the plant and carry on so-called union business at any and all hours and interrupt, harangue, and threaten individuals and groups at their work, but complaints to management about such conduct went unheeded and unnoticed. I have pointed out how the discriminatory discharge of Rowden hurried the selec- tion of a committee of dissidents to consult an attorney to ascertain whether there was some legal means by which this improper working arrangement between Her- zing and his group and the Company might possibly be dissolved, and the Inter- national induced to intervene. The deauthorization movement resulted and the dissident group soon found itself in the end again stymied by the joint Company and Herzing working arrangement whereby the Company lent its assistance to the Herzing group in its revocation campaign, and in the very midst of that campaign discriminatorily laid off Randolph, one of the principals in the deauthorization campaign. This discriminatory layoff of Randolph (on January 17, 1958), engineered by Herzing, entwined, as it was, with the Company's latest breach of neutrality in assisting Herzing and his group in their revocation campaign, as has been related, was the straw that broke the camel's back. Randolph invoked the Act. On Janu- ary 20, accompanied by Hogan and Gipson, Randolph went to the Board's Regional Office in St. Louis, and filed an 8 (a) unfair labor practices charge against the Re- spondent Company, Case No. 14-CA-1757 herein, charging violations of 8(a)(1), (2), and (3), and an 8(b) unfair labor practices charge against the Respondent Union, Case No. 14-CB-526 herein, charging violations of Section 8(b)(1)(A) and (2) of the Act. These were the first of the charges filed in each of the consoli- dated CA and CB cases herein. The others followed, most of them within a week thereafter. Randolph, having completed his business at the Board's office on January 20, 1958, Hogan, and Gipson left there about 5 p.m. in Randolph's car. Randolph let Gipson off at his home and he and Hogan went on to the Hogan home. There had previously, and for some time, been discussions among the dissidents who fre- quented the Hogan home about the necessity of resorting to picketing at the plant if other means of protesting and combatting what they believed and denounced as continuing unfair labor practices at the plant, involving discharges and assistance by the Company to the Herzing group, failed. Upon reaching the Hogan home the evening of January 20, Randolph and Hogan came to a decision to inaugurate, picketing at the plant that night in time to halt, if possible, the third shift (all maintenance men) which starts to work at 11 p.m. The third shift men usually commence entering the plant about 10:30 p.m. During this evening several of the dissidents came and went at the Hogan home About 6:30 p.m. Bailey, a first- shift employee, and his wife, came by the Hogan home and stayed there about 15 or 20 minutes. The matter of picketing was then under discussion and Bailey ad- vised against it saying that if they picketed they would "get run over out there . Herzing has them scared to death." Hogan said the principal reason he favored the commencement of the picketing that night was that Randolph had that very day put the situation at the plant in issue by filing charges of unfair labor practices involving his (Randolph's) layoff and the Company's course of action in giving assistance and support to Herzing and his group in their efforts to suppress opposi- tion to them and thereby strengthen their control and domination of the Union. After Hogan and Randolph came to a definite decision to commence picketing that night, Hogan offered to make some picket signs while Randolph went to and re- turned from his home at Alton, Illinois. Randolph and Hogan "talked over" and agreed in substance to the wording of the signs. A. 0. SMITH CORPORATION, GRANITE CITY PLANT 399 The signs were made that evening by Hogan and his wife and daughter. Leisner came in along about that time and assisted as did Pereria. Paschedag, who was at the Hogan home when Hogan and Randolph got there about 5:45 p.m., participated in the discussion about commencing the picketing that night, but left around 6:30 p.m. and returned to the Hogan home between 8:30 and 9 p.m. The signs read, at least two of them, "Unfair Labor Practices," the others, number of each not given, "Down with Herzing," "Equal Rights for All," and "The Boilermakers Stay, but Herzing Must Go." Shortly after 10 p.m. (January 20, 1958), Randolph and Hogan left the Hogan home in Randolph' s car carrying the picket signs and arrived at the main gate of the plant and started picketing there at 10:30 p.m. Randolph and Hogan, each carrying a picket sign, walked back and forth in front of the main gate. The sign Randolph carried read "Unfair Labor Practices." A light but steady rain was falling, which continued throughout the night and into mid-morning of January 21. The ground around the main gate was muddy and the remaining picket signs, which were affixed to wooden poles or sticks, were "stuck" or "stood up" in the mud on each side of the main gate and along the side of the driveway leading from Highway 67 to and into the main gate. Shortly after Randolph and Hogan commenced the picketing, Paschedag and Leisner, each driving his own car, arrived at the scene. They had left the Hogan home shortly after Randolph and Hogan departed. Until well after midnight Leisner for the most part stood or walked along the edge of the highway, opposite the main gate, and Paschedag walked or stood somewhere along one side or the other of the driveway leading from the highway to the gate. Neither carried a picket sign. Both Pasche- dag and Leisner retreated from time to time to the shelter of one of their parked cars. The next 30 to 45 minutes or so after the picketing commenced was a busy time The third maintenance shift, which started at 11 p.m., began arriving. The third shift men, an overwhelming percentage of whom were Boilermakers,85 would drive up to the main gate, stop their cars, roll the window down, and inquire of Randolph, or Hogan or Paschedag, as the case might be, what was going on. Randolph and Hogan would step to the open window and explain the purpose of the picketing, the substance or theme of their explanation being that the picketing or strike was against and in protest of unfair labor practices of both the Company and the Boilermakers Union, as it was being run by Herzing. Some half dozen or more when told by Randolph that he had that day filed unfair labor practice charges against both the Company and the Union asked to see the charges, whereupon, in each instance, Randolph produced and handed a copy of the charges to them which they examined under the dashboard light and returned to Randolph, and immediately backed their cars out and left, refusing to enter the plant. In a few instances an inquiry was made, whether this is a legal strike, and Randolph stated in reply that was an unfair labor practices strike, and in that connection, displayed a copy of the charges he had that day filed. The third shift is a comparatively small shift, composed alone of maintenance employees. Without going into an analysis of the figures concerning absentees the night of January 20, it suffices here to say that an overwhelming number of the third shift employees refused to enter the plant that night. Most of them turned their cars and left immediately, however, several, as did some of the second-shift work- ers who got off at midnight, parked their cars on the shoulder of the highway and tarried there, some staying quite late visiting in one another's cars, sheltered from the rain, expressing interest and sympathy for the declared objectives of the picket- ing. The picketing continued the next morning, January 21, at both the north gate and the main gate as the large first shift, including both maintenance and produc- tion employees which started to work at 7 a.m., commenced to appear. A very large percentage of the first shift eventually drove through the gates, with no semblance of obstruction or interference, and reported for work although many went in late, having deliberately tarried about entering. The picketing, for reasons not necessary here to detail, was wholly abandoned about 2:30 p.m. on January 21. According to Trelc, the number of employees who did not report for work either on the third shift, the night of January 20, or the first shift, the morning of January 21, aggregated 99. The Company discharged 23 of these 99 absentees. The rea- son for the discharge of 21, all Charging Parties in the CA case herein, assigned by the Company, was "for instigating, supporting, and participating in picketing in violation of labor agreement." Although the absences upon which the Company based the discharge of the other two men, Cissell and Hardy, were due wholly to their refusal to pass the pickets and enter the plant on the night of January 20, the 85 A comparative few members of this third shift were electricians or machinists. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reason assigned by the Company for their discharge was, "repeated and unauthor- ized absence from work ." Cissell filed a charge and is one of the Charging Parties named in the CA complaint. Hardy did not file a charge and is not included in the complaints. What was the motivation assigned by the men who initiated the picketing , that is, why did they picket? I shall not review what each had to say along this line, be- cause I think Randolph well expressed not only his own reasons for picketing, but in doing so summed up the feeling and thought of all who participated , or for that matter of all the many employees who were in sympathy with the purposes, ob- jectives, and aims which the dissident group sought to achieve. It will be recalled that a large number, probably more than 60'0 employees originally signed deauthor- ization cards. Randolph said, "I was picketing out there because of the unfair labor practices . we figured that if the people refused to go in to work the International would intervene and investigate this , mess that existed out there . and break up this sweetheart arrangement," whereby Herzing and his favored clique with the acqui- escence and assistance of management , "could accomplish about anything they wished" in their moves to suppress and get rid of those who opposed them and their methods; I was very dissatisfied with this sweetheart deal," between Herzing and his group and the Company, and "the favoritism" that was its offspring; and "I wanted to get equal rights for all . and see the plant and the Union operated as a plant and Union should operate." Further, Randolph said, in substance, that he believed his layoff had been manipulated through collusion between Herzing and man- agement "to get rid of me" and he and the others were picketing in protest of that, for "I knew that until that mess out there was cleaned up I would have no chance of getting my job back"; that the circumstances of the Rowden discharge was also one of the many considerations that let to a decision to picket , "because the same kind of thing that happened to Mr. Rowden had also happened to a lot of the rest of the people" in the plant; and that the latest collusive action whereby "the chief stewards and stewards were permitted to go throughout the plant on company time getting these revocation cards signed " was still another consideration that prompted the picketing; but that they were not "singling out any one particular thing," the picketing was a protest directed to the whole situation at the plant including the longstanding "sweetheart arrangement" that existed between Herzing and his group and management and the consequences flowing therefrom. Based upon the declared purposes and objectives of the picketing , as above re- lated, and upon the findings I have made as I have gone along as to the discrimina- tory discharge of Rowden and the unlawful demotion and ultimate layoff of Ran- dolph, and the many and numerous acts too many to recapitulate at this point, of unlawful assistance by the Company to Herzing and his henchmen , I am constrained and compelled to find and hold that the strike initiated and carried on by Randolph, Hogan, and Paschedag and any of the other employees who may have in any way participated with them , was an unfair labor practice strike and that those who par- ticipated were unfair labor practice strikers. I have found that the Company's unfair labor practices were a major cause of the January 20 and 21 , 1958, strike. Employees participating in the strike were conse- quently unfair labor practice strikers who were protected by the Act from discharge or other punishment by the Company for this conduct , unless, as the Company defends, the labor contract governing their relations with the Company included a waiver of their right to strike in the circumstances of this case . The Company main- tains that the no-strike clauses in the contracts with both the Boilermakers and the Electricians contained such waivers. The General Counsel insists they did not, and that the clauses in these contracts were substantially like those in the Mastro Plastics case in which the Board, 103 NLRB 514, with Supreme Court approval , 350 U.S. 270, held that the striking employees there involved were protected from discharge despite the general no-strike language in the contract in that case. Before considering this issue, it is appropriate to dispose of the Company's conten- tion that employees Bauer and Ennis, unlike the other Z086 employees discharged for instigating, supporting, or participating in the January 20 and 21 picketing, were members of the Electricians' unit and not the Boilermakers' unit, and are not, there- fore, entitled to the same statutory protections for their conduct which may enure to the other 20 who belonged to the Boilermakers ' unit. The Company maintains that as the unfair labor practices ascribed to it by the complaint relate only to the Boiler- makers' unit and not at all to the Electricians ' unit, Bauer and Ennis were merely "I include in the 20, Charging Party ( in the CA case ) Cissell, since his absence from the third shift the night of January 20, 1958, was due to the fact that he, as did most of the members of that shift, refused to pass the pickets and go in to work that night. A. O. SMITH CORPORATION, GRANITE CITY PLANT 401 sympathy strikers when they joined the picketing activities of the Boilermakers. Sympathy strikers , the Company asserts in its brief, are not under any circumstances protected by the Act. The Board has consistently rejected such doctrine and, as it declared in adopting the Trial Examiner's report in Texas Foundries, Inc., 101 NLRB 1642, 1683, enforcement denied on other grounds 211 F. 2d 791 (CA. 5), .. . it [the Board] has consistently accorded the protection of the Act to employees who by refusing to work during the course of a strike or by other lawful means have lent sympathy and support to striking employees , even though their strike activity was being conducted in furtherance of a labor organization's aims in another bargaining unit. This precise declaration by the Board of the controlling law obviates the need to elaborate my disagreement with the Company 's factual contention that the impact of its alleged unfair labor practices was limited to the Boilermakers ' employees. Be- cause it is not necessary I do not advert specifically to the abundant evidence in this record revealing the pervasiveness of the Company's unfair labor practices which nurtured and supported Herzing's adumbrative menace to the statutory rights of all plant personnel irrespective of unit affiliation . Participation by Bauer and Ennis in the strike activities of their fellow employees in protest against the Company 's unfair labor practices vested them , together with these other employees , with status as unfair labor practice strikers entitled to protection from discharge for engaging in such activity. The Company's contention that the Boilermakers' and Electricians' contracts forbade the strike conduct of the 22 discharged employees, named in the CA com- plaint, is premised upon its assertion that the no-strike clauses of these contracts expressly waived the right of the covered employees to strike for any reason including protests against the Company's unfair labor practices . The Company acknowledges that the Supreme Court's Mastro Plastics holding requires the inclusion of language expressly waiving the right to strike against an employer's unfair labor practices before construing a no-strike clause as meaning that the right to strike against an employer for his unfair labor practices has been abandoned , and that the court refused to accord this construction to the Mastro Plastics no-strike clause because of the absence of an express waiver therein of strike action against unfair labor practices. The Company maintains that the required express waivers are present in the Boiler- makers' and Electricians' no-strike clauses. The Mastro Plastics clause provided: The union agrees that during the term of this agreement , there shall be no inter- ference of any kind with the operations of the Employers , or any interruptions or slackening of production of work by any of its members. The union further agrees to refrain from engaging in any strike or work stoppage during the term of this agreement. The no-strike clause in the Boilermakers ' contract, here involved, provides: There shall be no lockouts of the employees or discrimination of any kind against the union or its members on the part of the company, or strikes, stoppage of work, sit-downs, slow-downs, boycotts or picketing on the part of the union or any of its members, for the term of this Agreement. The no-strike clause in the Electricians ' contract is virtually identical with that in the Boilermakers' contract. Comparison of the language of these clauses compels the conclusion that there is no substantial difference between them in the scope and extent of the promises by the respective unions to refrain from striking . Equally absent from each clause is language which may be deemed an express waiver of the right to strike against the unfair labor practices of the named employers. There is no language which I perceive in the Boilermakers' and the Electricians' contracts which coilld possibly express a wider promise of strike forbearance than does the Mastro Plastics language. Nor can I imply a wider promise by the Unions in the Boilermakers' and Electricians' contracts because they, as distinguished from the Mastro Plastics contract, contain a promise by the Company to refrain from locking out or discriminating against employees . I must assume in the context of the Company's argument that the con- tractual promise not to lock out or discriminate means not to resort to unlawful conduct of this sort . The inclusion in the contract of such promise not to violate the Act was gratuitous , for the Company was statutorily prohibited from engaging in unlawful lockouts or discrimination even without its promise . The agreements by the Boilermakers and the Electricians not to strike must, therefore , have been motivated by other more valid considerations , and, as in Mastro Plastics, were in- cluded in their respective contracts as part of the general economic settlement 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD achieved by the contracts. As declared by the Supreme Court in the Mastro Plastics case, so here it must be said that: Whatever may be said of the legality of such a waiver (not to strike against an employer's unfair labor practices) when explicitly stated, there is no adequate basis for implying its existence without a more compelling expression of it than appears in Section 5 (the no-strike clause) of the contract. I conclude on the basis of the Supreme Court's holding in Mastro Plastics, which is here controlling, that neither the Boilermakers nor the Electricians contractually relinquished their right to strike in protest against the Company's unfair labor practices. The discharge by the Company of the 22 employees, named in the CA complaint for participating in the orderly strike of January 20 and 21, 1958, in protest against its unfair labor practices is not, therefore, exonerated by the contrac- tual agreements of the Boilermakers and the Electricians. These discharges for the reasons assigned by the Company were in violation of Section 8(a)(3) of the Act. Having found that the Company violated Section 8(a) (3) of the Act by discharging its employees for engaging in protected strike activity, it is unnecessary to consider the alternate theories relied upon by the General Counsel in support of the allegation that the Respondent discriminated against these very same employees . One of these alternate theories consists of the claim by the General Counsel that the Company selected the employees whom it discharged for engaging in strike activity because each of these employees had at some time in the past incurred the disfavor of Herzing and his circle by engaging in dissident activities and that the Company thereby unlawfully discharged them in violation of Section 8(a) (3) of the Act for engaging in union activities. The General Counsel further alleges that this constituted an addi- tional act of unlawful 8(a) (2) assistance to the Boilermakers. Were it necessary in this case to consider these contentions by the General Counsel, I would have no hesitation in finding them well supported by the evidence. I refrain from making these findings because they would merely be cumulative in a record which is already replete with findings of violation of Section 8(a)(2) and (3) of the Act by the Company. Additional findings would not add anything to the remedial order which I shall recommend in this proceeding. On the other hand, such findings would compel me to detail sand to analyze an enormous number of pages of testimony and exhibits which I have already read, abstracted, and analyzed, but which would require an addi- tional number of untold hours of tedious labor to relate in this report, and no useful purpose would be served thereby. However, in passing, I observe that 6 of the 22 men named in the CA complaint, discharged on January 22 and 23, were in laid-off status at the time of the picketing; that the other 17 were working at that time; and that an aggregate of 99 employees refused to pass the pickets and go in to work and absented themselves from the third shift the night of January 20 or the first shift the morning of January 21. The explanations made by Treen and Trelc failed to convince me that the discharge of the 17, who were working at the time, out of the 99 who absented themselves from the two shifts, was made in a nondiscriminatory way or for nondiscriminatory reasons. Of the six in laid-off status, Randolph, Hogan, and Paschedag openly and patently "instigated" and "participated in" the picketing, but, in the light of the preponderating evidence to the contrary on this phase of the case, I am unable to credit the explanation of either Treen or Trelc as to how or why they selected the other three men in laid-off status, Miller, Gipson and Williams, for discharge for instigating and participating in the picketing. Concerning the allegation of the complaint against the Boilermakers that it caused or attempted to cause the Company to discharge the 19 employees therein named, who were discharged for picketing, the General Counsel maintains that on January 22, 1958, before any substantial investigation had been conducted by the Company, it came to an understanding with the Boilermakers as a result of conversations that evening in the plant between Treen and Herzing that the persons identified by the Boilermakers as pickets would be discharged. The General Counsel further claims that the affidavits prepared by Local 575 officials, Warfield, Mayes, and Ropac on January 22, and Herzing, Stearns, and Lane on January 23, containing identification of employees who picketed and which the Company admittedly utilized in effectu- ating the discharges for picketing, were merely the "memorialization" of the under- standing earlier reached by Treen with Herzing. In effect, the General Counsel urges, the Company left to the Boilermakers the determination of which employees should be discharged, and the designation of these employees by the Boilermakers, for reasons related fundamentally to their dissident activities , constituted a violation by the Boilermakers of Section 8(b)(2) of the Act. The fault with the General Counsel's contention is its lack of factual support to convince me that Treen and Herzing actually met in the plant during the evening of January 22, and came to the understanding which the General Counsel asserts they A. O. SMITH CORPORATION, GRANITE CITY PLANT 403 then reached. While the record arouses a strong suspicion that in fact these two did confer that evening in the plant there is not sufficient probative evidence to overcome their denial that they had met. I cannot, therefore, find that an arrangement was made whereby the Boilermakers were authorized to decide which employees should be discharged. Furthermore, I am not convinced that the affidavits prepared by the Boilermakers' agents on January 22 and 23, as aforesaid, containing the identification of pickets, sprang from the Boilermakers' intention that they be used by the Com- pany in lieu of its own investigation to determine who picketed. The fact is that during the strike the Boilermakers itself filed a charge, on January 21, 1958, with the Board alleging this activity to be a violation of the Act and that the affidavits identi- fying pickets were obtained by a Board representative in the coure of his official investigation of the charge. That these affidavits were subsequently turned over by the Boilermakers to the Company, at its request, does not persuade me that this was pursuant to an earlier understanding between the Boilermakers and the Company. I am no more convinced that this was done by prearrangement than I am that the Company on its own initiative sought these affidavits for whatever use it could make of them after it learned of their preparation. Consequently, I do not ascribe to the Boilermakers an intention in the giving of these affidavits to the Board that they should be used by the Company for the discharge of the employees named therein as pickets. In sum, I do not believe the record preponderates in favor of a finding that the Boilermakers by its conduct caused or attempted to cause the Company to discharge the employees named in its affidavits. This is not to say that I have any doubt about Herzing and his associates being highly pleased with the discharge of these employees. But I cannot equate the Boilermakers' approval with and pleasure over this action, even when coupled with its later failure and refusal to assist the discharged employees with their grievances in a manner befitting the obligation of a conscientious labor organization to its members, with Section 8(b)(2) conduct.87 I shall, therefore, recommend dismissal of the allegation that the Boilermakers caused or attempted to cause the discharge of the pickets in violation of Section 8(b) (2) of the Act. Summary of Findings I find that the Company by the following conduct, as hereinabove related, violated: a. Section 8 (a) (3) of the Act by: (1) The discharge of employee Albert Rowden on December 16, 1957; (2) the layoff of employee William T. Randolph on Janu- ary 17, 1958, and the alteration of its contract with the Boilermakers to accomplish this layoff; and (3) the discharge on January 22 and 23, 1958 of employees William T. Randolph, Thomas L. Willmore, James L. Hall, Arley Potts, Anton Becker, William E. Watts, Ruben Luther, Frank Becker, William R. Hogan, Clyde Wool- verton, Henry L. Kent, Thomas E. Gipson, Clarence E. Shaw, Frederick J. Bailey, Albert W. Ennis, Conrad F. Bauer, Henry W. Nichols, William G. Whitson, Harold R. Garner, Sr., Elroy Paschedag, Arthur Ray Miller, and Calvin J. Cissell. b. Section 8(a)(2) of the Act by: (1) Demoting William T. Randolph on No- vember 4, 1957, from his foreman's position to rank-and-file status; (2) discharging Albert Rowden on December 16, 1957; (3) from and after July 20, 1957, compen- sating Boilermakers' president, Willard Herzing, and vice president Flarce Warfield, at their regular rates of pay for times spent in the plant in the conduct of union business other than conferring with the Company, and in particular permitting these Boilermakers' officials to engage in union activities in the plant other than conferring with the Company concerning grievances or contract negotiations under a continu- ation of the so-called "Costello" agreement freeing Herzing and Warfield from the obligation to perform the work for which the Company paid them; (4) per- mitting agents of the Boilermakers to engage in union activities in the plant during their working time to combat the activities of employees in opposition to the Boiler- makers despite the Company's rule forbidding such activities in the plant while giving instructions to its supervisors and foremen to prevent union activities in the plant by "outside unions" which in context meant the employees opposing the Boilermakers; (5) providing IBM employee address slips to the Boilermakers at company expense to be used by the Boilermakers to combat the activities of em- ployees in opposition to it; and (6) permitting the Boilermakers to post on the Com- pany's bulleting board and to distribute literature to employees on company premises in its campaign against employees opposed to it while forbidding employees opposing the Boilermakers to engage in such conduct on or within company premises. 87 Gibbs Corporation, 124 NLRB 1320. 614913-62-vol. 132-27 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD c. Section 8(a)(1) of the Act by: committing each of the foregoing acts violative of Section 8(a) (3) and (2) of the Act. I find that the Boilermakers by the following conduct, as hereinabove related, violated: a. Section 8(a)(2) of the Act by : causing or attempting to cause the Company to lay off employee William T. Randolph on January 17, 1958, in violation of Section 8(a) (3) of the Act. b. Section 8(b) (1) (A) of the Act by: (1) Threatening employees through its officials and stewards from January 9 to 22 , 1958, with loss of employment if they refuse to revoke authorizations given by them to William R. Hogan to petition the Board for an election under Section 9(e) of the Act to rescind the authority of the Boilermakers to make an agreement requiring membership in that labor organization as a condition of employment in the unit represented by it; and (2) causing the Company to demote William T. Randolph from his position as foreman to rank-and- file status thereby restraining and coercing employees in the exercise of their rights under Section 7 of the Act. No findings that the Act has been violated by either the Company or the Boiler- makers have been made with respect to any allegations of the complaint concern- ing which specific findings of statutory violations have not herein been made. I shall recommend dismissal of such allegations as to which specific findings have not been made. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in con- nection with the operations of the Employer described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY Having found that the Company has engaged in unfair labor practices violative of Section 8(a)(1), (2 ), and (3 ) of the Act and that the Boilermakers has engaged in unfair labor practices violative of Section 8(b) (1) (A ) and (2 ) of the Act, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Company on November 4, 1957, violated Section 8(a)(2) and ( 1) of the Act by demoting William T. Randolph from his position as foreman to rank-and-file status. It has also been found that the Boilermakers violated Section 8 (b)(1) (A) of the Act by causing Randolph's demotion. In order to cure the coercive effect of this unlawful conduct upon the Company's employees , I shall recommend that the Company be ordered to offer Randolph restoration to his former or substantially equivalent position as foreman, including restoration of all seniority with which Randolph had been credited before the alteration by the Company of its contract with the Boilermakers on January, 16 , 1958. I shall also recommend that the Company and the Boilermakers jointly and severally be required to make Ran- dolph whole for any loss of earnings which he may have suffered because of his unlawful demotion by payment to him of a sum of money equal to the amount he normally would have earned as wages from the date of his demotion to the date of the offer of restoration, with backpay to be computed in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. I have also found that the Company discriminatorily laid off William T. Randolph on January 17, 1958, from his rank-and-file job, and that the Company unlawfully discharged him on January 23 , 1958. I do not recommend the usual reinstatement and backpay remedy ordered to cure these violations because compliance with the recommended order to restore Randolph to his former position as foreman with backpay will in effect include remedial action for the Section 8(a)(3) violations against him committed by the Company. This is equally true with respect to the violation of Section 8(b) (2) by the Boilermakers in causing the Company on January 17, 1958 , to lay Randolph off from his rank-and-file job. I have also found that the Company in violation of Section 8(a)(3) of the Act discriminatorily discharged Albert Rowden on December 16, 1957, and on January 22, 1958, discriminatorily discharged Harold R. Garner, Harry W. Nichols, Clyde Woolverton, James L. Hall, William G. Whitson, Ruben Luther, and Calvin J. Cissell, and on January 23, 1958, discriminatorily discharged Frederick J. Bailey, Anton Becker, Frank Becker, Thomas E. Gipson, Henry L. Kent, Arthur Ray Miller, Elroy Paschedag, Arley Potts, Clarence E. Shaw, William E. Watts, Thomas L. Will- A. 0. SMITH CORPORATION, GRANITE CITY PLANT 405 more, Albert W. Ennis, Conrad F. Bauer, and William R. Hogan. The Company has failed and refuses to reinstate to employment all these employees. It will there- fore be recommended that the Company be ordered to offer them immediate and full reinstatement to their former or substantially equivalent positions, without preju- dice to seniority or other rights and privileges, and to make them whole for any losses they may have suffered because of the discrimination against them by payment to them of sums of money equal to the amounts they normally would have earned as wages from the dates of the discrimination to the dates of the offer of reinstatement. In computing the backpay of these employees consideration should be given to the fact that certain of them were in layoff status when the discharges occurred, and that backpay for them should commence from the dates when they would on a nondis- criminatory basis have been recalled to work by the Company. Backpay for all these employees shall be computed in the manner established by the Board in F. W. Wool- worth Company, supra. I have found that the Company has unlawfully assisted the boilermakers and coerced its employees in violation of Section 8(a)(2) and (1) of the Act by granting material assistance and other benefits to the Boilermakers by the discharge of em- ployees and by the demotion of a foreman with the net result that its employees have been suppressed and frustrated in the exercise of the rights guaranteed them by Section 7 of the Act, and in particular in the exercise of their statutory right to seek rescission of the authority of the Boilermakers to maintain an agreement requir- ing membership in the Boilermakers by the employees in the unit represented by the Boilermakers as a condition of their employment. To cure the effects of this unlaw- ful conduct I shall, together with the other remedial action recommended herein, recommended that the Company withdraw and withhold recognition from the Boiler- makers as the exclusive collective-bargaining representative of the Company's em- ployees in the appropriate unit for which the Boilermakers is the recognized and certified representative, and cease giving effect to the current agreement with the Boilermakers or to any modification, extension, supplement, or renewal thereof unless and until the Boilermakers shall have been certified by the Board as the collec- tive-bargaining representative of the Company's employees in an appropriate unit. Nothing in this recommendation, however, shall be deemed to require the Company to vary those wages, hours of employment, rates of pay, seniority, or other substantive provisions in its relations with its employees which the Company has established in the performance of the said agreement, or to prejudice the assertion by its employees of any right that they may have thereunder. In view of the seriousness and the latitude of the unfair labor practices committed by the Company and the Boilermakers, the commission by them of similar and of other related unfair labor practices may reasonably be anticipated. It will therefore be recommended that they be ordered to cease and desist from in any manner in- fringing the rights guaranteed employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. A. O. Smith Corporation is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Local Union No. 575, is a labor organization within the meaning of Section 2(5) of the Act. 3. By the various acts of material assistance to and support of the above-named labor organization found in this report to have been committed by it, from and after July 20, 1957, the Company violated Section 8(a)(2) and (1) of the Act. 4. By the discriminatory layoff and discharges of employees to discourage the free exercise of rights guaranteed employees by Section 7 of the Act, as found herein, the Company has violated Section 8 (a) (3) and (1) of the Act. 5. By causing or attempting to cause the Company to lay off an employee in violation of Section 8(a)(3) of the Act, the Boilermakers has violated Section 8(b)(2) of the Act. 6. By threatening employees with loss of employment to restrain and coerce them in the exercise of rights guaranteed by Section 7 of the Act, the Boilermakers has violated Section 8 (b) (1) (A) of the Act. 7. All allegations of the complaints as to which specific findings of violation have not been made have not been sustained. [Recommendations omitted from publication.]