Goodyear Tire & Rubber Co. of Alabama

In the Matter of GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA and UNITED RUBBER WORKERS OF AMERICA Case No. C-311.-Decided March, 9, 1940 Rubber Tire Manafactaring Industry-Interference, Restv'a'int, and Coercion- Discrimination : union president assaulted during speech at open meeting and forced to leave city ; three employees at work assaulted , and together with four other employees, forced to leave plant , and together with nine other employees discharged or laid off by company at request of employees' com- mittee ; employees compelled to appear before employees' committee in plant and answer questions concerning union activities , company, when asked by city officials to furnish employees to act as special deputies to protect partici- pants in union meeting, selects for such service leaders and participants in previous anti-union activities , despite its knowledge of their previous conduct; company indicates approval of anti-union declaration circulated in plant, and disapproval of employees refusing to sign declaration , discharging one employee for such a refusal ; mass exodus from plant during working hours of employees , who thereupon assault union organizers and force them to leave city ; payment of assaulters for time lost from work ; labor espionage ; ratifica- tion by company of attempts to obtain retraction from minister who criticized its labor policies ; lack of protection afforded union members and organizers in city ; hostility of sheriff, police , and city officials toward union organizers and members ; denunciation by company of employees ' right to organize ; such denunciation held not substantial cause of lack of protection of union organ- izers by local authorities ; company not responsible for rumors its production would be expanded if there were no labor troubles ; company responsible for anti-union activities of employees , such as assaults on union organizers and members ; ratification of anti-union acts of employees ; failure of company to punish participants despite know ledge of their identity ; promotion of partici- pants and selection of them for deputy service ; fear of strike no justification for failure to punish ; company ordered to furnish employees reasonable pro- tection in plant against threats or assaults directed at union membership or activities , and to forbid such threats and assaults ; responsibility of company for acts of supervisory employees and flying squadron members who participated in anti-union activities , or showed approval of them ; company ordered to pro- hibit interference by squadron members with exercise by production employees of rights guaranteed in Act ; failure to reinstate assaulted , evicted , and laid off employees until Act held constitutional , unjustified ; charges of discrimination against 15 laid off employees sustained-Reinstatement Ordered: for one employee , other 14 having been reinstated prior to hearing-Back Pay : awarded 15 employees-Company-Dominated Union: domination and support of, and interference with, formation and administration ; disestablished as agency for collective bargaining-Interference , Restraint, and Coercion : charges that com- pany since April 1, 1937 , sponsored and encouraged series of acts of terrorism directed against union , dismissed ; contention that union and members guilty 21 N. L R B, No. 33. 306 GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 307 of acts of terrorism irrelevant and not established by evidence-Discrimination: charges of , sustained as to 12 persons , dismissed as to 11-Reinstatement Ordered: preferential list. names of 3 employees temporarily laid off non- discriminatorily to be placed upon-Back Pay: awarded. Mr. Mortimer Kollender, for the Board. Hood, Inter, Martin cfi Suttle, by Mr. 0. R. Hood, Mr. Roger C. Suttle, Mr. J. C. Inter, and Mr. David C. Byrd, of Gadsden, Ala., and Mr. Forney Johnston, of Birmingham, Ala., for the respondent. Mr. Yelverton Cowherd and Mr. D. H. Markstein, of Birmingham, Ala., and Mr. Stanley Denlinger, of Akron, Ohio, for the United. Mr. W. M. Rayburn, Mr. James B. Allen, and Mr. W. B. Dortch, of Gadsden, Ala., for the Etowah. Mr. Abraham L. Kaminstein and Mr. Robert Kramer, of counsel to the Board. DECISION AND ORDER STATEMEIT Or THE CASE Upon charges and amended charges duly filed by United Rubber Workers of America, herein called the United, the National Labor Relations Board, herein called the Board, by the Regional Director for the Tenth Region (Atlanta, Georgia) issued its complaint, dated August 3, 1937, against Goodyear Tire & Rubber Company of Ala- bama, Gadsden, Alabama, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing, were duly served, upon the respond- ent, the United, and Etowah Rubber Workers Organization, Inc., herein called the Etowah, a labor organization alleged in the complaint to have been dominated by the respondent. In respect to the unfair labor practices, the complaint alleged in substance (1) that the respondent, by its officers and agents, and by its conduct and representations, denounced the right of employees at its Gadsden plant to organize, and created the impression upon the law-enforcement officers of Gadsden, Alabama, that the respondent's operations at the Gadsden plant would be increased if organization activity of employees was prevented, and that consequently the United's officers, agents, and organizers were not afforded appropriate protec- tion in Gadsden from violence and assault; (2) that on or about June 8, 1936, the respondent discharged at the suggestion and upon the request of representatives of the Goodyear "Industrial Assembly," 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and thereafter refused to employ until May 1937, 12 employees, and on or about June 23, 1936, discharged at the request and upon the sug- gestion of representatives of the Goodyear "Industrial Assembly," and thereafter refused to employ until May 1937, an employee, Ruth Christopher, and at various times during 1937 discharged and there- after refused to employ 16 employees, because of the affiliation with and activity in the United of all the foregoing employees, and because ,of their engaging in concerted activities for the purpose of collective bargaining and other mutual aid and protection, and that by such dis- charges and refusals to employ the respondent discouraged member- ship in the United; (3) that since April 1, 1937, the respondent sponsored, encouraged, and acquiesced in, a, series of acts of terrorism directed against the United and the members of various other labor unions in order to coerce and intimidate the respondent's employees who desired to join a labor organization not dominated by the re- spondent; (4) that at various times during 1937, as part of a campaign of systematic terrorism against the United, by its agents the respond- ent administered or caused to be administered severe beatings to H. C. Adams, J. O. Glenn, B. E. Cleveland, and one Miller, all members of the United, attempted to assault B. T. Garner, the special repre- sentative of the United in Gadsden, held a meeting to plan violence to outside organizers of the United, assaulted E. F. White, a representa- tive of the International Molders Union, wrecked an automobile occu- pied by 3 members of the United and threatened them with a shotgun, caused a United member to be assaulted by other employees because of a speech by him in furtherance of the United, and in several instances with full knowledge of the facts rewarded its agents for the above activities by promoting them to supervision or to the Goodyear Flying Squadron at the Gadsden plant; (5) that since April 1937 the respond- -ent dominated, interfered with, and contributed financial and other support to the formation and administration of the Etowah, a labor organization of its employees, in certain ways, such as: suggesting the formation of the Etowah, permitting Etowah representatives and the -respondent's supervisors to collect Etowah dues. during. working hours, permitting, condoning, and sanctioning assaults on United members by Etowah members, exerting influence by agents, foremen, and super- visors to cause employees to resign from the United and join the Etowah, posting a notice recognizing the Etowah and refusing to post a similar notice for the United, and selecting, and dominating the selection of, Etowah officers; and (6) that by the above acts the respondent interfered With, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On August 14, 1937, the respondent filed an answer contesting the Board's jurisdiction of the subject matter, denying that it had en- gaged in the alleged unfair labor practices, and alleging affirmatively GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 309 that the United and not the respondent was guilty of such acts of terrorism as occurred in Gadsden and frightened the respondent's employees and their families. The answer also set forth certain ob- jections to the proceedings based on the Fifth Amendment to the Constitution. These objections, relating to the procedure provided for in the Act and followed by the Board, have been considered and found without merit by the Supreme Court of the United ,States in National Labor Relations Board v. Jones & Laughlin Steel Corpora- iion,l and need no further consideration. Pursuant to notice, a hearing was held at Gadsden, Alabama, from August 19 to December 1, 1937, before Walter Wilbur, the Trial Examiner duly designated by the Board. During the first day of the hearing the Trial Examiner granted the Etowah's motion that it be allowed to intervene. The ruling is hereby affirmed. Thereupon the Etowah filed an answer denying the allegations of the complaint which charged the respondent with interference with, and domina- tion and support of, the formation and administration of the Etowah. The Board, the respondent, the United, and the Etowah were repre- sented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all the parties. During the hearing on several occasions the respondent's counsel objected to the paiticipation of the United's counsel in the presenta- tion of evidence concerning the respondent's alleged unfair labor practices. The Trial Examiner overruled these objections. Having filed the charges upon which the complaint was based, the United was a party to the proceeding, and its counsel did not exceed his rights under Article II, Section 25, of National Labor Relations Board Rules and Regulations-Series 1, as amended. The Trial Examiner's ruling is hereby affirmed. At the opening of the hearing the Trial Examiner granted a motion by counsel for the Board, to which the respondent did not object, to amend the complaint by adding the name of Zella Morgan to the list of those employees allegedly discriminatorily discharged on or about June 8, 1936, and reemployed in May 1937. On August 31, 1937, the Trial Examiner granted a motion of counsel for the Board, to which the respondent objected, to amend the complaint by adding the names of six employees to the list of those allegedly discrimina- torily discharged by the respondent in 1937 and not thereafter rein- stated, and by adding an allegation that the respondent, because Woodrow Kilpatrick, an employee, belonged to and was active in the United, permitted and condoned acts and threats of violence by its employees against Kilpatrick which forced the latter on July 13, 1301 U. S 1 (1937) 283032-41-vol 21-21 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1937, to leave its employ. On September 29, 1937, the Trial Ex- aminer granted a motion of counsel for, the Board, to which the respondent objected, to amend the complaint by adding the names of two employees to the list of those allegedly discriminatorily dis- charged in 1937 by the respondent and not thereafter reinstated, and by adding an allegation that on June 24, 1936, the respondent discouraged membership in the United by discharging and thereafter refusing to reinstate E. D. Taylor, an employee, because he twice refused to sign certain petitions circulated. in the respondent's plant and manifested a friendly attitude toward the United. During the hearing the Trial Examiner also granted a motion of the Board's attorney, to which the respondent did not object, to strike the testi- mony of Jim Lynn, a witness for the Board, from the record and to ,amend ,the complaint by striking therefrom without prejudice the allegations concerning the assault on one Miller and the discharge in 1937 of two employees, Lynn and Troy Higdon. All the fore- going rulings are hereby affirmed. During the hearing the Trial Examiner permitted the respondent to file amendments to its answer, denying that it had committed the unfair labor practices alleged in the foregoing amendments to the complaint, and alleging affirma- tively certain reasons why the respondent should not be compelled to employ Kilpatrick, Christopher, and Ted Morton, an employee al- legedly discriminatorily discharged in 1937. These rulings are hereby affirmed. On September 10, 1937, pursuant to an order of the Trial Examiner, the hearing was held at Birmingham, Alabama, to permit the taking of the testimony of Lucius Cleere, a witness for the United, who because of a belief that his life was in danger in Gadsden, was reluctant to testify there. On October 18, 1937, the Trial Examiner denied a motion by counsel for the United for a change of venue. On November 5, 1937, the hearing, pursuant to an order of the Trial Examiner, was held at Atlanta, Georgia, for the purpose of taking the testimony of F. C. Sheehan, a witness for the respondent, then an inmate of the Federal penitentiary. These orders of the Trial Examiner are hereby affirmed. During the hearing all or part of the testimony of Cleere and of nine witnesses 2 for the respondent or the Etowah was, pursuant to the order of the Trial Examiner, taken in closed session, during which the public was excluded from the hearing. In a brief filed subsequent to the close of the hearing the respondent asserts that the action of the Trial Examiner constituted prejudicial error in the case of these nine witnesses. The record discloses that the respondent 2 These witnesses are* Irving Dutton , William Smith , Milton McDuff, H. D Self, F. C. Sheehan, H C. Adams, Aubrey Rutledge , J. W Harwell , and Tom Hinson GOODYEAR TIRE'& RUBBER COMPANY OF ALABAMA 311 raised no, objection to this procedure at the hearing except in the case of one witness, H. D. Self, who testified after three witnesses for-the respondent-Dutton, Smith, and McDuff-had testified in closed session. In the 'case of Dutton, Smith, and McDuff, counsel for the respondent expressly stated at the hearing that he had no objection to the closed session. We will not consider these objections to the conduct of the hearing in the case of the eight witnesses where such objections were not presented to the Trial Examiner for a ruling. In the case of Self, we are of the opinion that the Trial Examiner's order was not prejudicial, error. ' The Trial Examiner ruled this testimony of Self inadmissible, but, instead of limiting the respond- ent to an offer of proof, permitted the respondent to take this testi- mony of Self in order fully to protect the respondent's rights upon a review of the case by the Board. Self's testimony was offered solely to impeach the credibility of Cleere. The Trial Examiner ordered the closed session because of the nature of Self's testimony, which mainly concerned criminal acts allegedly committed by Cleere, but for which Cleere had never been tried or convicted.3 The Trial Examiner excluded evidence offered by the respondent to impeach the credibility of B. T. Garner, a witness for the Board, by showing that Garner had committed certain acts in violation of the laws of Alabama. The respondent did not offer to prove that Garner had been, convicted for this alleged misconduct. The Trial Examiner also excluded evidence offered by the respondent to impeach the credibility of Cleere by" showing that Cleere had committed certain criminal acts, for which he had never been tried or convicted. We have previously pointed out reasons why, even where such evidence is more germane to the issues before us for decision than in the present case, we will not undertake to determine the guilt or inno- cence of persons accused of crimes.4 The rulings are hereby affirmed.5 However, we are of the opinion that the testimony of J. W. Harwell that he and Cleere engaged in illegal transportation of beer, which contradicts 'the testimony of Cleere that Exhibit Number 10 of the United was prepared by Harwell to reveal the respondent's unfair labor practices, and not in connection with illegal transportation of beer, should be admitted. To clarify the record, the following por- tions only of the testimony of Harwell are hereby excluded : page 8 The foregoing comments are equally applicable to most of the testimony of Dutton, Smith, Sheehan , Hinson, and Harwell, taken in closed session , without objection by the respondent. 4 Hatter of Republic Steel Corporation and Steel Woi leers Organizing Committee, _ 9 N. L R. B 219, 387-88, enf'd, as modified as to other issues, Republic Steel Corp. v. National Labor Relations Board, 107 F (2d) 472 (C C. A 3). 5 For the reasons hereinafter set forth, none of our findings of fact relating to the re- spondent 's unfair labor practices are based in whole or in part on any testimony given either by Cleere or Garner. 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7242, line 1 to page 7248, line 21; page 7249, line 6 to page 7252, line 6; page 7253, line 12 to page 7254, line 4; page 7254, line 20 to page 7255, line 1; and page 7260, line 15 to page 7261, line 2; all inclusive; and the following portions only of the testimony of Tom Hinson are hereby excluded: page 7312, line 1 to page 7325, line 6; page 7336, line 25 to page 7341, line 8; page 7343, line 16 to page 7345, line 11; and page 7347, lines 6 to 14; all inclusive. The Trial Examiner also excluded exhibits offered by the respond- ent and part of the testimony of Self relating to convictions of Cleere and Garner for certain crimes. We are of the opinion that Respondent Exhibit No. 44, relating to a conviction of Garner for assault and battery, Respondent Exhibit No. 23, relating to a con- viction of Cleere for driving an automobile while intoxicated, and the testimony of Self relating to Cleere's arrest and conviction for "fighting," we're correctly excluded by the Trial Examiner because such evidence had no relevancy on the veracity of Garner or Cleere e Respondent Exhibit No. 22, relating to 'a conviction of Cleere for petit larceny, reflects on Cleere's veracity and is hereby ordered admitted. We are also of the opinion that the Trial Examiner erred in admitting certain exhibits offered by the Board and the United. All exhibits of the Board except numbers 8, 9, 10, 11, 12, 26, 35, and 37, all exhibits of the respondent except,numbers 2, 6, 19, 20, 21, 23, 24, and 44, all of the Etowah's exhibits, and all exhibits of the United except numbers 6, 7, 8, and 9,7 are hereby ordered admitted and made a part of the record. Any inconsistent rulings by the Trial Examiner are hereby reversed. During the cross-examination of the witness, J. J. Tucker, the Trial Examiner 'sustained objections to certain questions asked or sought to be asked by the respondent's counsel in order to impeach Tucker's testimony concerning Garner's reputation and character in the community by showing Tucker's lack of knowledge of certain alleged acts of misconduct of Garner. These rulings are hereby reversed. Since Tucker's answers and an offer of proof, which we shall accord the same weight as testimony, appear in the record, there is no need to reopen the hearing s The Trial Examiner excluded testimony of H. C. Adams and Aubrey Rutledge, witnesses for the Etowah, concerning activities, threats, and violence of the United or its members. These rulings are hereby reversed. All this testimony is in the record between pages 7117 and 7219, inclusive, and is hereby ordered admitted. The Trial 6 See footnote 5, supra. 7 United Exhibits 13, 13A, and 14 , affidavits made by witnesses prior to their testifying, are admitted solely for the purpose of impeachment and not as probative of the facts recited therein Matter of Lindeman Power and Equipment Company and International Association of Machdniste. 11 N L R B 868 8 See footnote 5, supra GOODYEAR TIRE & RUBBER COMPANY, OF ALABAMA 313 Examiner 'also sustained objections to questions asked the witnesses, B. R. McGraw and A. J. Jordan, by the respondent's counsel relating to activities and violence or threats of violence of the United and its members. These rulings are hereby reversed. In each case the re- spondent's counsel made offers of'proof, which we shall accord the same weight as testimony given by these witnesses. During the hearing, ' at the motion of the respondent's counsel without objection by other counsel, all the testimony of H. C. Griffin, a witness for the Etowah, was ordered stricken from the record by the Trial Examiner. The ruling is hereby affirmed. At the conclusion of the hearing the Trial Examiner reserved de- cision upon the respondent's motion to dismiss the complaint on the ground that the Board had no jurisdiction over the subject matter for the reason that interstate commerce had not been interfered with or affected, upon the respondent's motion to dismiss the complaint because the allegations of unfair labor practices were not proven by the evidence adduced at the hearing, and upon a motion by the Etowah to strike those portions of the complaint which alleged the commission of unfair labor practices, within the meaning of Section 8 (2) of the Act, on the ground that no substantial evidence 'had been produced to prove these allegations of the complaint. These motions are hereby denied. Upon motion by counsel for the, Board and for the respondent, the Trial Examiner ruled that the complaint and the several amendments thereto with the, respective answers of the respondent "be deemed amended to conform to the proof, as to variations in names, dates and other insubstantial matters." The ruling is hereby affirmed. During the course of the hearing the Trial Examiner made a number of rulings on other motions and on other objections to the admission of evidence. The Board has reviewed all these rulings of the Trial Examiner and finds that no prejudicial errors were com- mitted. The rulings are hereby affirmed. On December 8, 1937, the Board, acting pursuant to Article II, Section 37 (a), of National Labor Relations Board Rules and Regu- lations-Series 1, as amended, ordered the proceeding to be trans- ferred to, and continued before, it. Thereafter the United and the respondent submitted briefs to the Board. On December 30, 1937, the Board ordered the Trial Examiner to file with the Board an order ruling upon the admission of certain evidence upon which he had reserved ruling during the hearing, and the Trial Examiner did so. This order of the Trial Examiner is hereby affirmed, in so far as it is not inconsistent with any rulings of the Board hereinbefore set forth. On January 11, 1938, the United moved to reopen the case in order to submit evidence of alleged beatings of witnesses who had testified 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the hearing, occurring after the close of the hearing. On January 18, 1938, the Board denied this request of the United to adduce fur- ther evidence. On February 1,- 1938, pursuant to notice duly served upon all parties, oral argument was held before the Board in Washington, D. C., by the respondent and the Etowah. On September 6, 1938, pursuant to Article II, Section 38 (d), of said Rules and Regulations, the Board ordered that Proposed Find- ings of Fact, Proposed Conclusions of Law, and Proposed Order should be issued; that no Intermediate Report- was to be issued by the Trial Examiner; and that the parties were to have the right to file exceptions to these Proposed Findings, Proposed Conclusions of Law, and Proposed Order within 10 days from their receipt, and within the same time to request oral argument before the Board and permission to file a brief. On July 14, 1939, this order was amended by Article II, Section 37, of National Labor Relations Board Rules and Regulations-Series 2, granting the parties the right to file their exceptions and to request oral argument and permission to file a brief within 20 days from the receipt of the aforesaid Proposed Findings of Fact, Proposed Con- clusions of Law, and Proposed Order. Subsequently, the Board issued and duly served on all parties Pro- posed Findings of Fact, Proposed Conclusions of Law, and Proposed Order, dated October 25, 1939. Thereafter, the respondent, the United and the Etowah filed exceptions to the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order. The re- spondent and the Etowah filed briefs in support of their exceptions. In its exceptions, the respondent petitioned the Board for leave to present evidence to show that witnesses who testified at the hearing for the respondent had no financial interest in the outcome of the proceeding, were not induced, threatened, or coerced by the respond- ent, and had no offer from the respondent of advantage or detriment in connection with their testimony. This petition is hereby denied. On January 4, 1940, pursuant to notice duly served on all parties, oral argument, in which counsel for the respondent, the Etowah, and the United participated, was had before the Board in Washington, D. C. During oral argument and in a written motion filed there- after, the respondent asked the Board for permission to present evi- dence concerning labor disputes involving the United at the plant of Goodyear Tire & Rubber Company of Ohio, in Akron, Ohio. ThF respondent introduced evidence relating to these matters at the hear ing, and there is no indication that the evidence now sought to be introduced was unavailable at, or has been discovered since, the hear- ing. This petition is hereby denied. During oral argument and in a written motion filed thereafter the respondent also requested per- GOODYEAR TIRE '& RUBBER COMPANY OF ALABAMA 315 mission to place in the record evidence relating to, and certified copies of, certain proceedings in the courts of Alabama and of the United States concerning suits for damages brought against the re- spondent by certain individuals, including employees allegedly dis- criminatorily discharged by the respondent in 1936. This motion is hereby denied 8a In its exceptions, and in a written motion filed after oral argument, the respondent petitioned the Board for leave to examine the members and staff of the Board in order to show that the Board had violated the Fifth Amendment to the Constitution by abdicating its function of deciding the case and turning such function over to subordinates. This petition is hereby denied Sb After oral argument the respondent, pursuant to permission given by the Board, filed a brief. In its brief the respondent asked the Board to set aside and give no further consideration to the Proposed Findings of Fact, Pro- posed Conclusions of Law, and Proposed Order; to set aside the Order transferring the proceedings to the Board; and to transfer the, proceedings to a Trial Examiner for the taking of further evi- dence and the issuance of a preliminary report. This motion is hereby denied. The Board has considered all the briefs of the respondent, the Etowah, and the United, and has reviewed the exceptions of all the parties and finds the exceptions to be without merit, except as they are consistent with the findings of fact, conclusions of law, and order set forth below. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent, Goodyear Tire & Rubber Company of Alabama, is an Alabama corporation with its principal office and place of busi- Sa The respondent's contention that such suits, to which the Board was not a party, are res judicata on the issues of this case and binding on the Board is without merit Matter of Hill Bus Co., Inc. and Brotherhood of Railroad Trainmen, Rockland Lodge No. 329, 2 N. L R B. 781 ; Matter of National Electric Products Corp . and United Electrical and Radio Workers of America, Local No. 609, 3 N. L R. B . 475; Matter of United States Stamping Co . and Enamel Workers Union, No 18630, 5 N. L. R B 172 ; Matter of Fansteel Metallurgical Corp. and Amalgamated Association of Iron, Steel and Tin Workers of North America, Local 66, 5 N. L. R. B. 930; Matter of Williams Manufacturing Co. and United Shoe Workers of America, 6 N L R. B. 135 ; Matter of Mason Manufacturing Co. and United Furniture Workers of America, Local No 576, 15 N L. R. B 295 Sb National Labor Relations Board v. Bales -Coleman Lumber Co , 98 F. ( 2d) 16 (C. C. A. 9, 1938 ) ; Cupples Company Manufacturers v. National Labor Relations Board, 103 F. (2d) 953 (C. C A. 8, 1939) ; Inland Steel Company v. National Labor Relations Board, 105 F. (2d) 246 (C. C. A. 7, 1939) ; National Labor Relations Board v. Botany Worsted Mills, Inc, 106 F. ( 2d) 263 ( C. C. A. 3, 1939 ) ; National Labor Relations Board v. Lane Cotton Mills Co ., Inc. 311 U. S. 723. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ness in Gadsden, Alabama. The respondent is engaged at a factory in Gadsden in the manufacture of inner tubes and rubber-tire casings. During the period from June 1, 1936, to May 31, 1937, the respondent in its manufacturing operations at Gadsden used 35,847,504 pounds of rubber, worth $5,793,486.99; 8,007,920 pounds of carbon black, worth $385,676.74; 4,515,350 pounds of zinc oxide, worth $227,382.80; 2,385,211 pounds of bead wire, worth $262,703.65; 1,175,950 pounds of sulphur, worth $23,109.55; 794,400 pounds of clay, worth $4,410.40; 27,734 tons of coal, worth $86,375.18; and 10,607,334 pounds of fabric, worth $2,842,123.52. Eighty per cent of the fabric, 25 per cent of the coal, and all of the other above-listed materials were shipped to the Gadsden plant from points outside the State of Alabama. The total value of the 77,513,908 pounds of finished goods produced by the Gadsden plant during the same period was $12,520,540.72. During the months of August and September 1937, which are representative of the normal operations of the Gadsden plant, at least 90 per cent of the approximately 400,000 tires manufactured at the plant were shipped to points outside the State of Alabama, 40 per cent being sent directly to automobile factories in Michigan and Indiana. At the time of the hearing there were 1650 employees at the Gadsden plant. The respondent is a wholly owned subsidiary of Goodyear Tire and Rubber Company, an Ohio corporation, herein referred to as the Ohio Corporation. The respondent has no income of its own, and all of its expenses such as the pay roll of the Gadsden plant, are paid by the Ohio Corporation, except for certain sums paid by the respondent itself for freight charges. The respondent sends all re- quests for raw materials to the office of the Ohio Corporation at Akron, Ohio, and the Ohio Corporation either purchases these, ma- terials or obtains them from its other subsidiary corporations and arranges for their delivery to the respondent at the Gadsden plant. The volume and type of the respondent's products is determined by instructions given it by the Ohio Corporation. The respondent's products are sold and distributed by the Ohio Corporation or the wholly or partially owned subsidiary corporations of the Ohio Cor- poration, which take delivery of these products at the Gadsden plant. The respondent neither pays the Ohio Corporation for materials furnished by the latter, nor receives payment for the tires and casings delivered by it to the latter or the latter's agents. The executive officers of the respondent are identical with the ' executive officers of the Ohio Corporation. The above facts show that, as A. C. Michaels; general superin- tendent in complete charge of the Gadsden plant, testified, the GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 317 respondent is operated virtually as a department of the Ohio Corporation. None of the respondent's executive officers or directors are sta- tioned at Gadsden. Michaels is responsible to C. Slusser, vice presi- dent and factory manager of the respondent in charge of production, who is stationed at Akron, Ohio. Michaels testified that he had sole control of the hiring and discharge of employees and the general labor policies and problems of the Gadsden plant. Bartlett Morgan is the night superintendent at the plant. The operations at the Gadsden plant are divided into several divisions : (1) The engineering division, headed by N. A. Nigosian, under whom is the master mechanic, E. G. Mallory; (2) the develop- ment division, headed by J. M. Frye, under whom is J. C. Mangels, the chief chemist; under Mangels are L. E. Edwards, head of the testing laboratories, and W. H. Rudder in the chemical compound service; (3) the personnel division, headed by H. S. Craigmile, under whom are L. E. Miller, head of the labor department and the "squadron," and J. Work, head of the plant police; (4) division C, purchasing, headed by Superintendent G. G. Bloom, under whom are B. H. Simmons, head of production control, and C. E. Jellicourse, the chief dispatcher; (5) division B, headed by Superintendent N. A. Neiger, under whom are various shift and department foremen; in the departments in this division tires are built, cured, and inspected; and (6) division A, headed by Superintendent V. L. Folio, under whom are various shift and department foremen; in the departments in this division the materials used in tire building, such as crude rubber, are processed. The heads of these six divisions, together with Michaels, Morgan, and Basseler, the chief accountant, comprise the factory council, an informal organization meeting weekly in the plant to discuss all important plant problems. The "squadron" is a group of about 25 men, usually chosen from among the outstanding employees of the plant, or from among recent college graduates.' The purpose of the squadron is to aid in balanc- ing production and to enable the members to be trained for super- visory positions. Over a 3-year period, members are taught every operation in the plant, filling in the positions of absentees and em- ployees on vacation. They thus become available for use throughout the plant. They are paid on a graduated hourly rate. In addition to the actual training in each position, members are given special class instruction. Members of the squadron are closely supervised by Miller, the employment manager, who is the squadron foreman. Each member reports daily to Miller, and his work for the day is The present squadron, according to the testimony of Miller , the squadron foreman, has a large percentage of college men. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assigned at that time. The squadron is regarded by the respondent as a reservoir of supervisory material. Michaels testified that the respondent usually selected its supervisors from squadron graduates. Miller referred to the squadron as a "wholesome source for potential supervisional material." In fact, squadron members are only tempo- rarily part of the non-supervisory staff, for after completing the 3-year course and graduating from the squadron, they are termed "tentative supervisors" 10 and are usually given supervisory positions as soon as possible 11 The relation of squadron men to supervisory officials has been dis- cussed by the Board in a previous case.12 There the Board found that the squadron men were a select group with an intimate rela- tionship to the management, and that they must be considered as a group distinct from ordinary employees. The purpose of the squad- ron and the special training and prospects of its members set them apart. Because of the opportunities open to squadron men, they are prone to regard themselves as a group supplementary to the super- visory staff, and undoubtedly their interests are much more likely to be those of foremen than those of the rank and file of the employees 13 II. THE ORGANIZATIONS INVOLVED United Rubber Workers of America is a labor organization admit- ting to membership employees of the respondent. The United was first organized at the respondent's plant in Gadsden in June 1933 as Federal Local No. 18372, directly affiliated with the American Feder- ation of Labor. In September 1935. United Rubber Workers of America was constituted a separate International, affiliated with the American Federation of Labor, and Federal Local No. 18372 became Local No. 12 of the International. In October 1936 the International affiliated with the Committee for Industrial Organization.14 to Thus Miller testified that T. L Bottoms, after graduation from the squadron, "was a tentative supervisor and when the opening came to work in a supervisory capacity where he had the most experience he was transferred " n Examples of squadron graduates transferred to supervisory positions are : T. L Bot- toms, who, after his graduation from the squadron at Gadsden, became a working super- visor and later a shift foreman ; Joe Tucker, Louie Jones, M. G. Dunn, B L. Crow, and P. G. McDaniel, upon graduation from the squadron, all became supervisors or labor trainers. Tucker testified that a labor trainer was "practically the same" as a supervisor. Claude Dorough, a squadron graduate, became a production inspector in the tire room, and then was transferred to supervision. ' Matter of Goodyear Tare and Rubber Company of California and United Rubber Work- ers of America, Local No. 131, 3 N L R. B. 431, where the Board excluded squadron men from an appropriate bargaining unit consisting of production and maintenance employees. 13 Thus M. G. (Pete) Dunn testified : Q. At that time were you a supervisor or just a member of the squadron? A. I was a member of the squadron learning supervision. Q. And you were not acting as a supervisor at that time? A. Well, not in full capacity, no, sir 14 Hereinafter, both Local No. 12 and its predecessor, Federal Local No. 18372, are referred to as the United. GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 319. The Joint Conference Plan was an unaffiliated labor organization admitting to membership employees of the respondent .114a During April and May 1937, as hereinafter explained, this organization was dissolved by the respondent. Etowah Rubber Workers Organization, Inc., is an unaffiliated labor organization incorporated under the laws of the State of Alabama. It admits to membership all employees of any corporation engaged in the manufacture of automobile and truck tires or any other articles of rubber within the boundary of Etowah County, Alabama, except executives and those authorized to hire and discharge. So far as the record shows, the Etowah has organized only the employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Background The occurrences described in this subsection either occurred before July 5, 1935, the effective date of the Act, or are not the subject of allegations in the amended complaint, and subsequently we make no findings of unfair labor practices by the respondent in connection with these events. However, because later practices of the respond- ent have their origin in these occurrences, a knowledge of this back- ground of events is vital to a proper evaluation of these subsequent practices 15 The United began to organize the employees of the respondent at the Gadsden plant in June 1933. That same month the respondent's officials put into operation at the Gadsden plant the Joint Conference Plan, hereinafter called the Plan. The Plan was modeled after an organization started at the Akron plant of the Ohio Corporation about 15 years previously. Under the Plan the employees at the Gadsen plant were divided into eight precincts, each of which elected by secret ballot an employee representative. The first elections were held in June 1933. During this and the subsequent elections held during the existence of the Plan, the respondent's foremen, such as Robert Goodall, foreman of the tire room, made a practice of checking up on the employees in their departments to discover those who had 14a The respondent excepted to the Board 's proposed finding of fact that the Joint Con- ference Plan was a labor organization . The testimony of Michaels and of Burna Beck,- an employee representative of the Plan , establishes , and we find , that-the Plan existed for the purpose, in whole or in part, of dealing with the respondent concerning grievances , wages, rates of pay, hours of employment, and conditions of work of employees The Plan,' therefore, was a labor organization within the meaning of Section 2 (5) of the Act. ' 15 See Pennsylvania Greyhound Ltines, Inc ., Greyhound Management Company, Corpora-' tions and Local Division No. 1003 of the Amalgamated Association of Street, Electric Rail- way and Motor Coach Employees of America, 1 N. L R B. 1, order enforced , National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc . and Greyhound Management Company, 303 U. S. 261 ( 1938 ). 1 ^ - - ' 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not voted and of asking the non-voting employees why they refused to vote and if there was any reason why they disliked the Plan. According to the testimony of Michaels, in 1936 in the last election held for the Plan, 1200 of the 1600 employees at the Gadsden plant voted. Craigmile, head of the personnel department, at various times suggested to employees that they should run for Plan offices. The respondent paid all expenses of the Plan, furnishing the ballots and holding the elections on its property. The respondent also paid all employees for the time they spent in voting. The eight employee representatives elected under the Plan met with the members of the factory council, except Bassler, to present and discuss employee grievances and problems. Michaels presided over these meetings. The employee representatives were paid by the respondent for the time they spent at these meetings, which were held in the plant. Slusser had final supervision over all the awards and decisions of the Plan council. L. D. Hayes, an employee, testified that the company officials, dur- ing one of the elections when he did not vote, "had me up and begged me to vote"; that his foreman, Goodall, suggested that he should vote; that he told Goodall that he could not belong to two organizations, referring to his membership in the United; and that when he asked Goodall if voting was compulsory. Goodall replied that it was not. Joseph Doyal, an employee, testified that early in 1935 when Goodall asked him why he had not voted, he replied that he belonged to the other organization, referring to the United, and did not believe in the Plan ; that Goodall told him that the Plan had obtained a raise for him and that the Plan was "better than nothing" ; and that when he persisted in his refusal to vote, Goodall remarked that if anything happened to him, he should remember that Goodall had talked to him about this. Goodall testified that he had asked Doyal and other employees why they had not voted, but denied that Doyal and Hayes had given their membership in the United as a reason for not voting or that he had made the other remarks to Doyal which the latter tes- tified to. In view of these admissions of Goodall, we find that his partial denials of the testimony of Doyal and Hayes are not to be credited. We find the facts to be as set forth above in the testimony of Doyal and Hayes."' "'In its Exceptions to the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order of the Board , the respondent asserts that the proposed findings are erroneous because they resolve numerous conflicts in testimony in favor of the credibility of witnesses for the Board and the United The Board has carefully examined and con- sidered all the evidence, including the conflicting testimony of the witnesses . In making its findings relating to the credibility of these witnesses and their testimony, the Board has taken into account. in addition to the factors set forth above in its Decision, the plausibility of the testimony in view of the virtually undisputed and uncontradicted evi- deuce, including the admissions of the respondent witnesses , relating to the attitude and GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA .321 Further light on the operation of the Plan is given by the testimony of Louis Jones.l" Emmett Taylor, an employee in the tire room, had been rehired in the spring of 1936 by the respondent. Jones testified, and we find, that Charles Dooley, shift foreman in the tire room, "carried" him around and "introduced" him to Taylor a day or two after Taylor had begun work there. Jones then told Taylor that he, Jones, was the tire-room representative of the Plan, explained the Plan to Taylor, and expressed a willingness to handle any complaints Taylor had. Taylor had not asked to see Jones nor did Taylor have any grievances. In 1936 T. L. Bottoms was chairman of the Plan employee repre- sentatives. Bottoms, who had also served two previous terms as an employee representative, was at this time a member of the squadron working in the employment office of Miller. It is plain from the previous description of the formation and administration of the Plan that it was completely dominated and supported by the respondent. The respondent suggested the Plan to its employees as soon as an outside union, the United, began to organize its employees. The method of operation of the Plan was formulated by the respondent. The respondent paid all expenses of The Plan and also paid all Plan members for all time they spent on Plan business, such as voting. The respondent's supervisory em- ployees not only made clear to the employees the interest taken by the respondent as to whether or not the employees voted in the Plan, but also by their suggestions dominated the selection of officers for the Plan. New employees, such as Taylor, Were introduced to Plan representatives by the respondent's officials. So far as the record shows, the employee Plan officers held no meetings except those at which the factory council was present. Thus the respondent, itself, through the factory council, directly participated in the activities of the Plan and the formation of its policies and decisions. And the respondent, by its officer, Slusser, had final decision on all Plan mat- ters and awards made by the Plan council. As subsequently described, the respondent dissolved the Plan dur- ing April and May 1937, but it must be remembered that for almost ^2 years after the effective date of the Act, the respondent dominated, conduct of the respondent, its superNisory employees, and members of its flying squadron, toward the United, the Plan, the Etowah, the various assaults and other incidents, de- scribed above, and the leaders and participants therein The Board has given weight to the financial or other interests of the witnesses in the outcome of this proceeding , and also to the fact that in several cases, as for example those of Neiger, Goodall, and Linn, numer- ous witnesses testified to substantially similar conduct on the part of an individual who denied such activity. 19 Jones was a member of the squadron from 1941 to 1935. He then served as a super- visor in the tire room for 4 or 5 months, but from March until August 1936, while be was a Plan representative, be was a truck-tire builder. In August 1916 he again became a supervisor. 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interfered with, and contributed support to the Plan, and that dur- ing all this time the United was attempting to organize the respond- ent's employees. At the same time that it fostered the Plan, the respondent kept close watch on the activities of the United and on several occasions indicated to interested employees the hostility of the respondent toward the United. Craigmile testified that he first heard of the United's activities at the Gadsden plant in July 1933; that he was "pretty well" informed of the United's activities during the subsequent months through statements voluntarily made to him by various employees who had joined that organization and subsequently become dissatisfied with it; and that an officer of the United, at this time, one Hirst, in partic- ular gave him information about the United, apparently hoping for a promotion from the respondent as a reward for this information, but that the respondent did not, in fact, give Hirst this promotion. The record shows that the respondent did not hesitate to make use of this data it received concerning the United. Thus, C. S. Holmes, an employee, joined the United in July 1933 and was elected vice president. The day after his election he was summoned to the office of Frank Steele, then superintendent of the plant, and asked if he was an officer of the United. Holmes admitted that he was. One Horton, a plant policeman, complained to Bottoms, a Plan representative in 1933, that Craigmile had rebuked him because he had joined the United. Bottoms spoke to Craigmile concerning this incident and Craigmile informed him that the plant policeman could not join any union but must remain neutral in order "to protect both sides and the property." C. H. Glover, an employee and a witness for the respondent, who joined the United in 1933, had attended several United meetings, during which, he testified, there was much discussion concerning a proposal to call a. strike at the Gadsden plant. Glover did not attend the meeting at which the strike proposal was voted upon, but he learned later that the strike had been voted down. The evening of the day that the strike vote had been taken, Charles Eckles, Glover's foreman, came to Glover's house and told Glover, "We heard they voted on a strike." Glover replied, "There is nothing to it." When F. H. DeBerry, a tire builder and a member of the United, in 1936 asked Neiger, division superintendent, for time off in order to go to Montgomery, Alabama, as a United representative for a conference relating to certain poll-tax legislation, Neiger replied that such a request showed that DeBerry was not "loyal" to the respondent. T. E. Bazemore, an employee, testified that in 1936 he GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 323 asked Miller to give his brother a job in the plant ; and that, when Miller refused, he made a similar request of Superintendent Neiger, who replied that the respondent could not use Bazemore 's brother because the brother might "turn out like" Bazemore concerning the "union," and that the respondent could not depend on Bazemore because of his union activities . Neiger testified that Bazemore asked' for a job for his brother but denied that he told Bazemore anything except that Bazemore should see Miller . Miller testified that at Bazemore's request he interviewed his brother but was unable to employ him because no jobs were then available for a man of his small physique . We find that Miller interviewed Bazemore's brother and that Neiger made the remarks to Bazemore contained in the testimony of-the latter, set forth above. Thomas Cartee , an employee, joined the United soon after it was organized and became a member of the United grievance committee. Cartee testified that he had been a supervisor but that after joining the United he was taken off of supervision and given a job with less pay; that after his demotion , because of the illness of an employee regularly on his former supervisory job, he performed supervisory work for 1 day; that when he asked his foreman, A. F. Linn, why he was permitted to work on supervision for a day only instead of permanently as previously , Linn told him to see Division Superin- tendent Neiger ; and that Neiger told him that he had "got" all that he would ever get as long as he was working at the respondent's plant, that he would never advance beyond his , present non- supervisory job as long as he worked for the respondent , and that he, Neiger, did not know "how long that will be." According to Cartee's testimony , Neiger later approached him after he had tem' porarily dropped his United membership , and said that he, Neiger, had heard that Cartee had. "dropped out" of the United, that Car- tee's standing had once been "pretty high" at the plant but that Cartee had let his union membership "drag" him down, and that if Cartee would "forget" the union he, Neiger, would see that Cartee was rewarded . Neiger denied the above testimony of Cartee, stating that Cartee had been a supervisor only in 1929, and that he knew. Cartee belonged to the United, but that the only occasion on which he had discussed the United with Cartee was when he had rebuked Cartee for soliciting members for the United during working hours in the plant in 1936. S. W. Caudle, an employee belonging to the United, testified that Neiger told him that Cartee had once been a supervisor but now was rolling molds and "he will continue , he will never get any better as long as he is here . . . you union men will never go no higher." Neiger denied making such remarks to Caudle. We are of the opinion that the 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony of Cartee and Caudle is to be credited, and we find the facts to be as set forth above in their testimony. Lucius Grady Cleere testified that after working for almost 2 years at a steel plant in Gadsden as a labor spy, in April 1936 he was employed by the respondent for similar activity. Cleere tes- tified that Mike Self, head watchman in the steel plant, recommended him to the respondent as a labor spy; that he first spoke to Bottoms, who told him to report either to Miller or to Bottoms which em- ployees belonged to the United; that later Miller gave him a list of United members, told him to watch them, and to report to Miller or Bottoms to which employees these United members spoke; and that on one occasion in April or May 1936, he and Bottoms, at Bottoms' suggestion, had followed two union organizers for a day around Gadsden. Cleere testified that although Bottoms and Miller expected reports from him, he never gave them any but instead told them that he was unable to obtain the information they wanted; and that in May 1936 Miller and Bottoms finally told him that if he could not obtain the necessary data in any other way he should join the United. Cleere also testified that he recommended that the respondent hire his brother as a labor spy and that the respondent subsequently hired his brother. According to Cleere, his foreman, Charles Dooley, informed him shortly before June 1936 that "he knew I was all right . . . and wanted me to be ready to do my part . . . at the breaking of the organization up." Bottoms and Dooley denied the above testimony of Cleere. Miller testified that he remembered hiring Cleere as an ordinary employee; that Cleere's testimony concerning labor espionage was false; that Cleere on several occasions had asked him for a list of employees who "belonged to the union"; and, that he had told Cleere that the respondent did not have such a list. Cleere's testimony is un- corroborated. He has a criminal record and a bad reputation for veracity. But we have previously pointed out that labor spies often have records and characters similar to Cleere's.17 Moreover, his testimony is not improbable in view of the evidence previously set forth concerning the respondent's observance and knowledge of the United's activities. And the denials of Miller and Bottoms are of doubtful credibility in view of our disbelief, as hereinafter pointed out, of much of their testimony relating to other incidents. How- ever, we are of the opinion that Cleere's testimony concerning labor espionage should not be used as the basis of any findings of fact in this proceeding. 17 Matter of Panther-Panto Rubber Cc, Inc. and United Rubber Woikern of America, Local #156, 11 N. L. R. B. 1261. GOODYEAR T1RE & RUBBER COMPANY OF ALABAMA 325 B. Interference, coercion, and restraint; and the 1936 discharges and lay-offs As we have previously stated, the complaint , as amended, alleges that the respondent, by denouncing the -right of its employees to organize, and creating the impression upon the law-enforcement of- ficers of Gadsden that the operations at the respondent 's plant would be increased if the organizing activity of the employees was pre- vented, caused the United officers and organizers to be given insuffi- cient protection from violence and assault in Gadsden ; that on or about June 8, 1936, the respondent discharged , at the request of representatives of the Plan, 12 employees because of their United membership and activity ; and that during June and July 1936 the respondent discharged 3 other employees because of their United membership and activity . These allegations necessitate a detailed analysis of events occurring in Gadsden during June 1936. 1. Narrative of events a. The June 6 meeting Soon after the United was organized in 1933, a committee rep- resenting its members conferred with the respondent on several occasions in order to adjust grievances. During the year 1935, the respondent at the request of a United representative posted a list of the officers and committees of the United on each of the eight bulletin boards in the plant. Late in May 1936 the respondent discharged two employees, E. L. Gray and one Apperson. Both were prominent members of the United, Gray being president. Early in June, Sherman Dalrymple, International president of the United, came to Gadsden in order to discuss these discharges with the respondent and also to aid the United in its organizing campaign among the respondent's em- ployees. On the morning of June 4 at the plant, Joseph D. Doyal, an employee belonging to the United asked Michaels to meet with Dalrymple to discuss the discharges. Michaels agreed to do so that afternoon. Doyal testified that Michaels then told him that the meeting would not do "any damn good." Michaels denied making this remark and testified that he merely told Doyal that the re- spondent considered "the case closed" so far as the discharges were concerned. We believe that Doyal's testimony is to be credited. That afternoon the two discharged employees, together with Doyal and Dalrymple, met with Michaels and Craigmile at the plant. Neiger was also present during the latter part of the conference. 283032-41-vol 21-22 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The discharges were discussed. The respondent's officials asserted that Gray had been discharged because attachments had repeatedly been levied against his wages and that Apperson had been dis- charged because of dishonesty in attempting to conceal a mistake in his work. Dalrymple stated that he was dissatisfied with this expla- nation of the discharges. After pointing out the uniform success that he had had in adjusting grievances at the Akron plant of the Ohio Corporation, Dalrymple stated that on one occasion he had succeeded in adjusting a grievance by threatening to "let the hammer drop" and bringing "the pressure of his organization to bear." The respondent's officials, however, remained adamant concerning the discharges. Doyal testified that both Michaels and Craigmile contended during the conference that the Plan should have been used in order to settle the grievances; and that Michaels stated that it had "always" been the respondent's policy to deal with the em- ployees through the Plan and that the respondent had no use for the United, which was a "bunch of radicals" and "communists." Michaels testified that he told Doyal that the respondent felt that it had a "very good relationship" with the employees through the Plan. Michaels denied making the other remarks attributed to him by Doyal, and Neiger, who was in the conference only part of the time, and Craigmile both corroborated Michaels' testimony. How- ever, in view of Michaels' admission of his reference to the Plan, we are of the opinion that Doyal's testimony is to be credited. At the end of the conference Dalrymple invited the three officials to attend a mass meeting to be held by the United on the evening of June 6 at the courthouse in Gadsden. Michaels refused the invi- tation, and Dalrymple left, saying that it was apparent that Michaels liked him but not what he belonged to. On June 5 and 6, 1936, handbills were distributed in Gadsden announcing that an open meeting would be held on the evening of Saturday, June 6, at the courthouse in Gadsden, at which Dalrymple would speak about the United and its organizing campaign. J. H. Chapman, an employee, testified that when he was working at the plant on June 6, M. G. (Pete) Dunn, a member of the squadron, told' him and other employees that Dalrymple was coming to organ- ize the employees and "now is the time we are going to have to stop this . . . we are going over there tonight at 7 o'clock and we want you to go with us . . . you don't have to carry anything, just go along, if you want to, and be along with us . . . of course, if you want to, you can bring a rotten egg or a brickbat or anything ydu can find ... we are going to drive him out of there." Accord- ing to Chapman, when an employee objected that the men might be arrested, Dunn replied, "We done called up over there, Mr. Miller GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 327 has, and made arrangements that nobody won't get arrested over there; the whole town is for us; we are going over there and put him out, we are going to put a stop to this." Another employee, L. C. Brown, testified that that same day while he was working in the plant Pete Dunn asked him to come down to the courthouse that evening, saying that a "God damn Communist" was coming there "to try and tear up the plant here . . . we want to go over there and beat hell out of him and run him out." Dunn testified that he asked several people if they were going to the courthouse meeting, but could not recall speaking to Brown or Chapman. We believe that the testimony of Chapman and Brown is to be credited, and find the facts to be as set forth above in their testimony. B. E. Cleveland, an employee, testified that while he was working on June 6, his shift foreman, Ralph Chalfant, told him that "a damned Union agitator from Akron was coming down there to instigate a strike or to agitate a strike and . . . they were going to beat him up, send him back to Akron on stretchers." Cleveland testified that Chalfant asked him to come down and help and that when he asked about the police or the sheriff, Chalfant said, "Hell ... you haven't got a damn thing to worry about . . . We've done got that fixed with Bob Leath [the sheriff] and the city commission." Chalfant denied making these remarks, but we find that he did so. D. W. Barnett, an employee, testified that as he was leaving his work on June 6 he heard Louie Jones, a squadron graduate and a representative of the Plan, tell another tire builder, "We'll get to throw our eggs tonight." J. H. Benefield, a tire builder, testified that on June 8, Jack Hall, an employee, told him that Jones had told him, Hall, on June 5 to be at the courthouse and that there would be "plenty of rotten eggs to throw." Jones did not deny making the above remarks but merely testified that he knew of no plan to break up the United meeting. We find that Jones made these remarks. The meeting on the evening of June 6 began with a short speech by Dave Green, president of the Gadsden Central Labor Union. During Green's speech the only disturbance came when C. L. Mc- Gath y, a working supervisor in the engineering department, inter- rupted Green and asked why Green believed that the employees at the Gadsden plant were not satisfied with the present working con- ditions. Green told McGathey to ask questions at the end of the speech, but McGathey did not avail himself of this privilege. The next speaker at the meeting was Dalrymple. Although McGathey termed Dalrymple's speech "a normal one," Dalrymple, according to the respondent's witnesses, all of whom were employees present at this meeting, aroused their anger by stating that he was going to 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organize the employees at the Gadsden plant ; that if he was not big enough for this job, no one was; that. if anyone in Gadsden stated that he was satisfied with the working conditions at the Gadsden plant he either "didn't know what he was talking about" or "was lying"; that he could close the Gadsden plant with the help of 30 men; and that if necessary he would bring some "loyal Alabamians" from the Akron plant to help him organize the Gadsden plant. Pete Dunn, McGathey, and Bill McCay, an employee in the engineering department, interrupted Dalrymple's speech by attempts to question him. Pete Dunn testified that when he left the meeting temporarily during Green's speech, he found several sacks of vegetables on-the stairway, from which he secured some tomatoes. Walter Rudder, a chemist at the plant, testified that early in Dalrymple's speech he left the courthouse, bought a dozen and a half eggs at a nearby store, and returned to the courthouse and distributed them to various mem- bers of the audience. T. L. Bottoms testified that he, like Rudder, left the courthouse during Dalrymple's speech, bought 2 dozen eggs, returned and distributed them among the audience. Although Rud- der and Bottoms both testified that they had no idea of breaking up the meeting until Dalrymple's speech had provoked them, Burna Beck, an employee and witness for the respondent, testified that he obtained eggs from Rudder before he entered the courtroom and that he heard all the remarks in Dalrymple's speech which Rudder and Bottoms testified so annoyed them that they decided to obtain the eggs and break up the meeting. We do not believe, therefore, that Rudder and Bottoms obtained their eggs because of Dalrymple's remarks. Moreover, Beck obtained his ammunition before hearing a single word uttered by any speaker, and Pete Dunn got his to- matoes before Dalrymple spoke. Horace Lowry, an employee in the engineering department who, as later set forth, led an assault on Dalrymple, also had heard none of the speeches in the courtroom. We find, therefore, that, as is indicated by the evidence previously set forth concerning remarks made by Pete Dunn, Jones, and Chal- fant at the plant before the meeting, Pete Dunn, Rudder, Beck, Jones, and Bottoms went to the Dalrymple meeting with a definite plan of breaking it up and that the speech of Dalrymple merely served them as a pretext for carrying out this plan. In fact, the respondent's witnesses, McGathey, Beck, and McCay, each gave a. different remark of Dalrymple as the one which finally provoked the riot. As the evidence shows, the ensuing riot began when McGathey, who had been constantly interrupting Dalrymple's speech, rose from his seat in the courtroom and, followed by a large group, began to rush toward the speaker's platform. In the words of McGathey, GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 329 "We surged through there." As McGathey attacked, R. Clyde Tur- ner, an employee in the engineering department, followed by Rudder, Beck, Bottoms, Jones, Pete Dunn, Carl Dunn, an employee, Jim Hudson, an employee in the engineering department, and Roy A. Girard, an employee, threw various missiles, such as eggs and vege- tables, at Dalrymple. Several fights then broke out in the court- room between Dalrymple's assailants and his protectors. Pursuant to Dalrymple's request, Doyal left the courthouse and went to the nearby police station, where he informed the desk sergeant that Dalrymple was "getting mobbed" at the courthouse. The sergeant made no reply and did nothing. Doyal then asked him "what he was going to do about it." The sergeant finally sent out a radio call for two police cars. Doyal returned to the courtroom; where he found two city policemen, G. H. Diggs and W. T. Abrams; near Dalrymple. Doyal testified that he heard Dalrymple tell Diggs, "Why don't you keep this down, I am trying to have a peaceful meet- ing here"; that Dalrymple then pointed to Turner and said to Diggs, "here is a man just started cursing ... this man just called me'a God damned son of a bitch" ; that Diggs asked Turner if he had made this remark; that Turner replied, "damned right I did"; and that Diggs, when asked by another man to arrest Turner, remarked, "You shut your mouth or I'll put you in jail." Horace Lowry in large part corroborated Doyal's testimony, which Diggs and Abrams denied. We believe Doyal's testimony. Lowry also testified that Turner; im. mediately after cursing Dalrymple before the policemen, struck Dalrymple in the face. Turner and McGathey corroborated this testimony of Lowry, which we find is to be credited. We find the facts to be as set forth above in the testimony of Doyal and Lowry. Turner was never arrested or punished for his actions on June 6. Shortly after Turner had hit Dalrymple, R. A. Leath, the sheriff, arrived and suggested to Dalrymple that the latter leave the court- house. Dalrymple and his wife, together with Leath, went out the back door. As they were walking down the street to the nearby hotel at which Dalrymple was staying, a crowd ran up and Horace Lowry made a "leap" at Dalrymple and, together with other members of the mob, succeeded in pulling Dalrymple away from the sheriff. Rudder, Lowry, Bill Norris, an employee, B. L. Crow, a squadron member, McGathey and Bottoms, together with other members of the mob, then' proceeded to give Dalrymple a' beating. In fact; Bottoms testified, "I hit him [Dalrymple] every chance I got." The members of the mob finally escorted Dalrymple inside his hotel, ordered his baggage to be brought down, and told him to leave town. Dalrymple and his wife, escorted by the police, then did so. 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Miller did not attend the meeting ; however, he testified and we find that during the meeting he was sitting in a drug store directly opposite the courthouse where he hoped to hear the speeches, which he understood were to be broadcast by a loud speaker. During and after the meeting Miller conversed with several employees, including Bill Norris, McGathey, Carl Dunn, and Carl Hudson. Immediately after the meeting had been broken up and Dalrymple had been forced to leave Gadsden, several of the respondent's em- ployees proceeded to the Gadsden plant and for the remainder of the night patrolled the grounds near the pump house in order to prevent anyone blowing up the pump house, as rumors in Gadsden predicted would happen. Pete Dunn and McGathey drove several employees out to the plant after the riot but did not join the pump-house guard. Jones, Beck, Girard, Turner, John McCulloch, a production inspector of tires who had been in a fight at the courthouse meeting, and A. J. Jordan and M. L. Chaffin, employees, were among those who spent the night on guard at or near the pump house. Miller and Craigmile, who had been informed around midnight by a plant watchman of the presence of unknown men near the pump house, went there, found the employees on guard, and conversed with them. b. The events of June 8 On Monday, June 8, 1936, three employees, members of the United, received severe beatings while at work, and together with four other employees, also United members, were forced to leave their work at the plant. Shortly thereafter, these seven employees, together with five other employees, members of the United, were laid off or discharged by the respondent. These events started with a quarrel between Turner and Edward Ledlow, an employee and a member of the United grievance com- mittee. According to Turner's testimony, Ledlow, who had been doorkeeper at the June 6 meeting, shortly after the riot had begun during the meeting had cursed and threatened Turner, who was throwing eggs, and had pressed something into Turner's back. Turner testified that he was informed by Girard and Rudder late Sunday afternoon that Ledlow had pressed a gun into his back Sat- urday evening. According to Turner, he decided to obtain revenge upon Ledlow, Saturday evening, but informed no one of his intention to do so until after his arrival at the plant Monday morning, when, about 7 o'clock, 5 minutes before he assaulted Ledlow, he told two em- ployees, Jim Hudson and Horace Lowry, of his plan. Lowry testified that Turner at this time told him, Lowry, about his plan to assault Ledlow because Ledlow had drawn a gun on him; and that he agreed GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 331 to help Turner by watching 0. G. Lake, an employee and Ledlow's brother-in-law. Turner testified that he walked up to Ledlow in the plant about 7 o'clock at the latter's bench; that when Ledlow denied having any gun or drawing one at the Dalrymple meeting, he hit Led- low, who hit back; that the two men then clinched and fell on the floor, fighting; and that eventually 25 or 30 men surrounded the two, fighters, whom Beck and Lowry separated. Lowry testified that Turner hit Ledlow, who fell, then arose and knocked over Turner; and that he then pulled Ledlow off Turner, grabbing Ledlow around the neck, and turned Ledlow over to the other employees, who were rushing over and who gave Ledlow a further beating, until Beck finally took Ledlow away. Lowry testified that there was a crowd of only six or eight about the fight, most of whom were on Turner's side. Ledlow testified, and we find, that Turner came up to him while at work, asked him a question about a gun, and then hit and knocked him down; and that subsequently about 15 men beat and kicked him until Beck came up and led him away. Among his other assailants, Ledlow identified McCay, Carl and Pete Dunn, Beck, McGathey, and Crow. Crow admitted hitting Ledlow several times. Carl and Pete Dunn did not deny participating in this assault,. and we find that they did so. McGathey and McCay testified that they were present merely as bystanders, and Beck testified that he attempted only to break up the fight. Turner, Lowry, and several other witnesses for the respondent all testified that there had been no previous plan to assault or evict any employees belonging to the United from the plant, but that spon- taneously, after the Turner-Ledlow fight, groups of employees decided to carry out such a scheme. However, the testimony of John Mc- Culloch, a squadron graduate and production inspector of tires who. testified for the respondent, clearly shows this testimony of Turner and these witnesses of the respondent to be false. McCulloch testi- fied that immediately after the Dalrymple meeting he, Turner, Mc- Gathey, Carl and Pete Dunn, and Carl Hudson met on the street and decided to run out several employees from the plant on Monday. We find, therefore, in accordance with the testimony of McCulloch, that the above-mentioned employees of the respondent had plotted the evictions on the night of June 6 and that Turner used the "gun" matter merely as a pretext for beginning the evictions. Turner testified that after Ledlow had been taken away he walked over to S. W. Caudle, an employee, who belonged to the United, and hit Caudle, who started to run and was seized by Carl Dunn, who carried him out of the plant. Turner testified that he attacked Caudle because the latter "was with Dalrymple down here the night, Saturday night before, and he was one of the undesirables, and I 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wanted to run him out . . . he hadn't done anything." Caudle testified, and we find, that Turner hit him on the jaw, saying he did not like "the looks" of Candle's face, and ordered him to run; and that Carl Dunn kicked him out of the plant. Girard, Crow, and Pete Dunn were also among the group which forced Caudle to leave. DeBerry was the last employee to be beaten and evicted. His chief assailant was James H. McGinty, then a tire builder. According to the testimony of McGinty, which was in a large part corroborated by that of Crow, he was a mere bystander when a crowd, of 10 or 12 employees surrounded DeBerry at the latter's machine, and he entered into the assault only when DeBerry cursed and made an insult- ing remark which he believed was meant for him. This testimony of McGinty and Crow, however, concerning the reasons for McGinty's participation in this eviction is contradicted not only by the testimony of DeBerry and other witnesses for the Board, but also by that of Girard and McCulloch, witnesses for the respondent. We are of the opinion, therefore, that the testimony of McGinty and Crow in regard' to this incident is unworthy of belief. DeBerry testified, and we find, that McGinty, together with about a dozen men, including Crow, Girard, and Joe Tucker, then a labor trainer, surrounded him, and that McGinty stated, "We want you," and then hit him, knocking him I o the floor, where the others kicked him. After McGinty had hit and knocked out DeBerry, Paul Dooley, an' employee not a member of the United, remonstrated with McGinty for this assault on DeBerry, and McGinty thereupon knocked out Dooley. One Lorren, or Laurin, another employee not a member of i he United, also attempted to remonstrate with McGinty, and simi- larly was hit by McGinty. Having thus disposed of three employees single-handed, McGinty requested the other members of his group to take the lead in evicting the next employee, F. D. Love, a member of the United. A crowd of 12 or 15, including Crow, Carl and Pete Dunn, and McGinty, surrounded Love, who at their request left his work. Love was not beaten. Ledlow testified without contradiction and we find that during the entire assault on him, T. P. Smith, shift foreman, was present only 15 to 30 feet away and did and said nothing.' Cartee, a member of the United then at work in the plant, testified that when he saw Beck and Jim Hudson leading Ledlow out of the plant he met Foreman Goodall; that he asked Goodall what was happening; and that Goodall replied, "You will know in a few min- utes." Goodall denied making this remark to Cartee. While Carl Dunn was kicking•Caudle out of the plant, he also passed by Goodall, who'remarked, "that is enough." Dunn ignored this remark. W. T. White, a tire builder, testified that shortly before DeBerry was beaten GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 333'' tip, he asked Goodall what the trouble in the plant was, and that Goodall replied, "the non-union is throwing out the union" and "they are going to throw some out in the tire room." White testified that during the beating of DeBerry, Dooley, and Lorren, Goodall delib- erately stood at the back of the tool house about 20 feet away, and did nothing to stop the fighting. White testified that after Lorren had been beaten up, the group of evicting employees , apparently for- getting whom they next were to assail; sent Crow and Tucker over to Goodall ; that Crow and Tucker asked Goodall who was the next man to go; and that Goodall replied it was Doyal, whom they would find on the other side of the tool house. Goodall and Tucker denied The above testimony of White. Crow did not deny White's testimony. Doyal testified that, having seen the other evictions , he spoke to Goodall and asked, "Are you throwing us all out?"; that Goodall replied that he did not know ; that he said, "I suppose you are sending them after me . . . Why don't you fire me like a man? "; and that Goodall made no reply. Doyal also testified that he asked Superin- tendent Neiger, "Are you having us all throwed out?"; and that Neiger said he did not know. Neiger denied having any such con- versation with Doyal . We find that his denial is not to be credited, and that the facts are as set forth above in Doyal's testimony. Shortly thereafter a group of employees led by Bottoms,-Carl Dunn, and, according to the testimony of Doyal , Tucker, ordered Doyal to "get the Hell out." Doyal went to the locker room. He was not beaten. Doyal testified that the following day he saw Goodall, who told him that neither Doyal nor Love had been beaten because Goodall had told the employees merely to tell Doyal and Love "to get out," that if Dalrymple had not come to Gadsden these incidents would not have happened , that the United was "a bunch of radicals trying to live off the working man," and that the "bunch of radicals has got in" the Akron plant and "stirred up a ljunch of trouble." Goodall denied all of the above testimony of Doyal, except that he stated that, before being evicted, Doyal asked him for permission to go home, saying that he was afraid of being evicted , and that he, Goodall, merely ordered Doyal to return to work. Goodall and John Cunningham , shift foreman , testified that they first learned of the evictions when Lorren, after McGinty had hit him, told them about this incident ; that when Goodall questioned McGinty about it, Mc- Ginty replied that it was "none of his damned business" ; and that Goodall then ordered McGinty to report to the labor department. McGinty never reported. Cunningham and Goodall testified that then they tried to get the employees in their department back to work and to get the employees who did not belong in that depart- 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment out of it. We find the facts to be as set forth above in the testi- mony of Cartee, White, and Doyal, which we credit. Labor Trainer Tucker denied that he aided in the eviction of DeBerry or anyone else. Tucker testified that after McGinty had knocked DeBerry down, he asked McGinty what the latter was doing and also tried to get the ei'iployees back to their machines, but was told by the employees that it was none of his "damned business what they were doing." Tucker claimed that not only McGinty but also Lorren made this remark to him. However, since Lorren was sub- sequently attacked by McGinty for interfering with him, it is ex- tremely improbable that Lorren made such a remark to Tucker. We find, therefore, that Tucker did not attempt to stop the evictions but rather actively participated in them, as shown by the testimony of White, DeBerry, Doyal, and Barnett. Supervisor Joe Clayton also watched the beating of DeBerry, and during it told some of the employees who were watching it to, "get back to your machine and keep your mouth shut and tend to your business." Clayton made no effort to check the beating of DeBerry. S. R. Hershiser, Caudle's foreman, • testified that he learned of Caudle's eviction only after it was all over; and that he heard that Pete Floyd, an employee in his department, had taken an active part in this and other evictions. K. F. Keefner, an employee belonging to the United, asked his supervisor, Ross Giblen, what was happening. Giblen made no reply. A few minutes later Keefner was asked to leave the plant by Girard and Pete Dunn. Keefner left the plant. The last employee to be evicted was 0. G. Lake, a member of the United and the brother-in-law of Ledlow. Shortly after the Led- low-Turner episode, Beck warned Lake to leave the plant. Lake asked his supervisor, Ted Smith, what to do, and Smith replied that he was not "having anything to do with it." Lake then started to leave the plant, but as he was departing, a group of 10 men chased him. Lake took refuge in a small gatehouse outside the main build- ing of the plant. The employees following him stood around the gatehouse for a while and then proceeded back toward the plant. Among those who chased Lake out of the plant were Jim Hudson, Carl and Pete Dunn, Crow, McCulloch, M. L. Chaffin, and Pete Floyd. Several other employees, including Bottoms, Beck, and Carl Hudson, now also came out into the yard outside the plant and joined Lake's evictors. Cartee testified that at this time Michaels drove into the yard and asked Jim Hudson 18 what was going on; that Hudson replied, "you know what is going on"; and that Mi- 18 Hudson testified that he was a gang pusher or working supervisor in charge of three men in the engineering department. GOODYEAR TIRE'& RUBBER COMPANY OF ALABAMA 335 chaels then "grinned" and drove off. Michaels did not deny this inci- dent, but testified that when he drove up to the plant that morning he saw a large crowd of employees in the yard, spoke to several of them, and received no reply. Hudson testified that he told Michaels that it was "none of his damned business, we was tending to it." Chaffin, another one of the evietees; corroborated Hudson's, testimony and stated that Cartee, was not outside the plant at this time because Horace Lowry had been selected by the, evictors to watch Cartee and keep Cartee in the plant. Lowry did not testify that' he had been assigned to watch Cartee but stated that he had agreed to watch Lake, the brother-in-law of Ledlow. We find the facts to be as set forth above in Cartee's testimony, which we credit. Shortly after various employees had gathered in the yard outside the plant, Craigmile approached them. When Craigmile asked what was happening, McGathey told Craigmile, "We are running these agitators out of the plant, that's what we are doing." McCay told Craigmile that it was "not any of his damned business." Craigmile ordered these employees to go back to work and to stop fighting. As the group were entering the plant, Jim Hudson suggested that a committee should be formed to see Craigmile and Miller about dis- charging the employees that had been run out and other United mem- bers who worked on the afternoon shift at the plant. Beck, Turner, Bottoms, Jim Hudson, Supervisor McGathey, and other employees discussed Hudson's suggestion and agreed to it. Turner prepared a list of 20 employees, including the 7 who had already been run out, and he, Beck, Bottoms, McGathey, and Jim Hudson presented the list to Miller and demanded that the employees named in it be dis- charged. Miller replied that he would see Craigmile, and he did so. Craigmile, after consulting Michaels, told Miller that he would 'meet with the employees' committee and asked Miller to tell the employees to increase the size of their committee in order to represent more fully the employees in the plant. Various other employees were then added to the committee. Rudder was asked to serve by McGathey, who was "active" in forming the committee and getting employees to serve on it. Jones, a worker in the tire room who that day was working on the afternoon shift at the plant, nevertheless came to the plant early that morning. Jones testified that at the request of several employees in his department he, too, agreed to serve on the committee. Pete and Carl Dunn, R. A. Culberson, a working su- pervisor in the engineering department, Carl Hudson, Pete Floyd, and Girard were other committee members. Craigmile testified that he met with the committee, who refused his request to allow all 20 men on their list to remain at work. He testified, however, that after considerable argument, the committee agreed to consider fur- 336' DECISIONS OF 'NATIONAL LABOR RELATIONS- BOARD ther 8 of the employees on the list, when, after conferring with Michaels, he agreed that the other 12 employees would be laid off by the respondent. Seven of the 12 had been evicted; the other 5, Hayes; Holmes, F. B. Adams, Hugh _ Milam, and L. R. Stewart, all members of the United, worked on the afternoon shift. Craigmile did not threaten to discharge or otherwise discipline the committee members. In fact, Girard testified, and we find, that Craigmile told the committee, "whatever you fellows think is right, why, we want to do it." - Subsequently, during this day the eight employees were summoned before this committee, which met in a private dining room in the plant. In the presence of Craigmile they were questioned by the committee concerning their union activities and membership, their belief in "radicalism," and their attitude toward the union. activities which had occurred at the Akron plant, of the Ohio corporation. The employees summoned before the committee were Cartee, R. F.- Lambert, Dooley, R. H. Scott, A. H. Benefield, J. L. Hudson, Dis- muke, and Zella Morgan. All eight were permitted to return to work, but, in the words of Rudder and McGathey, only after they had con- vinced the committee that they were, or would be, "through with" their union activities. - . Craigmile testified that he was present merely as a referee in order to protect the rights of the employees called before this committee. Scott testified that when he appeared before the committee, Craigmile asked if he belonged "to the union"; that when he replied that he did not, Craigmile told the committee to let him go back to work since he did not belong; and that thereupon the committee let him return to, work. Cartee testified that Craigmile told him that he, Craigmile, was chairman of the committee, and that he had heard that Cartee no longer belonged to the United; and that when he replied that he did not belong, he was allowed to return to work. Benefield testified that Craigmile questioned him about how he stood "on this Union business"; that Craigmile told him.that "a group of men in here that we have got that we think a lots of . . . say that they are going to quit if we don't get rid of a bunch of the other men . . . that is our business,'what we have got you up here for." Morgan testified that Craigmile informed her that he was there to see that she "got a square deal," but that he "would have to do what the committee told him to." Morgan testified that she was warned by Craigmile and members of the committee, after being informed that she could return to work, that if she was seen too much with union organizers, the committee would have to reconsider her case. On the basis of the above testimony of Scott, Morgan, Cartee, and Benefield, which we believe, we are of the opinion that the testimony GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 337 of Craigmile and other employee members of the committee that Craigmile merely acted as referee and did not question the employees concerning their union membership is not to be credited. However, even if we were to accept Craigmile's version of this incident, we would conclude that he adopted the action of the committee as his own by participating in this lawless proceeding and not using his authority to put an end to it. T. E. Bazemore, an employee who belonged to the United, testified that shortly after the evictions had ceased on June 8, he asked Super- intendent Neiger what was happening and whether he would "get the works too" ; and that Neiger replied that he did not know, that he thought Bazemore "was on the list," and that the respondent had "got tired of those fellows and run them out." Bazemore testified that the next day Neiger informed him that the committee would see him that day. Bazemore testified that on the following day, June 10, Neiger told him to forget the committee, stated that lie would have his job as long as he wished but would have to "lay off the union activities," said that if the union organizers came, to tell them "to go to hell," and remarked that "John L. Lewis and all of them was interested in nothing but stirring up trouble." Neiger denied all the testimony of Bazemore. Neiger testified that on June 8, Bazemore did ask what had happened and if he would be "run out"; and that he, Neiger, replied' -that, he knew nothing about" this. Scott testified that on June 8, shortly after the evictions, Neiger asked him what he "thought about the damn Union now" and stated that the union men had been "kicked and cursed out" of the plant and would never have another job with the respondent "as long as they live." Neiger de- nied this testimony of Scott. We are of the opinion that Neiger's denials of this testimony of Scott and Bazemore are not to be cred- ited. We find the facts to be as set forth above in the testimony of Scott and Bazemore. By the end of the afternoon of June 8, the respondent at the re- quest of the employees' committee had laid off or discharged 12 em- ployees, all members of the United,-and had permitted the committee to interrogate 8 other - employees concerning their union activities and membership. Not a single employee was in any way punished or disciplined by the respondent for participating in any, of the events of June 8 previously described. , A few days thereafter, on June 13, Craigmile prepared a written statement concerning his participation in the employees' committee's interviews of the eight employees. He thereupon summoned each of the eight employees, except Benefield, one by one to his office and requested them, in the presence of Rudder and Crow, to sign this 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statement.l" In view, of the conditions under which the statement was signed by the employees, we are of the opinion that any state- ments in it not in accord with the findings made in this decision are not to be credited. c. The Riverside meeting About a week after June 8 the United sent George Roberts and several other organizers to Gadsden to aid in organizing the respond- ent's 'employees. Roberts testified that shortly after his arrival he spoke to Adolph Reich, part owner and manager of two local hotels, who informed him that "organizations were not very well taken" in Gadsden, and that he would not have much success in organizing the workers there because he and other Gadsden citizens believed that if there was no labor trouble at the respondent's plant the pro- duction and pay roll would be doubled. Reich testified that he merely told Roberts that he did not believe that the citizens of Gads- den would stand for such disturbances as had occurred during the United organizing campaign in Akron. At the hearing, Reich de- nied that there was any agreement with the respondent that pro- duction would be doubled if there was no labor trouble at its plant. For reasons subsequently set forth, we find it unnecessary to resolve this conflict in the testimony of Roberts and Reich. On June 16 or 17, Roberts and Yelverton Cowherd, the United's at- torney, saw J. H. Meighan, one of the three members of the City Com- mission of Gadsden, to obtain permits in connection with an open meeting to be held in Gadsden on June 20. Meighan informed them 19 This statement , signed by the seven employees and witnessed by Rudder and Clow, is set forth below Know All Men By These Presents, That we, the undersigned , make the following statement of our own free will and accord and without coercion or intimidation and describe said statement as a true and faithful recitation of the facts about our examination before a committee of the employees of the Goodyear Tire & Rubber Company of'Alabama on June 8 and 9. Each of us upon entering the private dining room where the meeting was held saw H S Craigmile seated at a table with a number of Goodyear employees. Each of us after sitting down ii as told by Mr. Craigmile that our names were on a list given him by this Committee and that the management had been requested by this Committee to remove our names from the payroll of the Company Each of us was told by Mr. Craigmile that by reason of his position as Personnel Manager of the Company it was part of his job to see that every employee got a square deal from everyone while he was on Company property. And because of this, that he, Mr. Craigmile, was sitting in this meeting not as ' a member of the Committee, but as a referee to see that our rights were protected and we were treated fairly. Each of us was then given a chance to talk about our union affiliations and we were closely questioned as to our opinion on radicalism After each of us had been asked a number of questions by members of the Commit- tee we were voted on by the Committee. In each case the vote was favorable and we were told that we might go back to work and carry with us the best wishes of each member of the Committee In each case this announcement was made to us by Mr. Craigmile not as a pro- nouncement of his but as a simple statement of the result of the vote of the Committee. GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 339 that the Gadsden officials would not tolerate any intimidation or coercion. Roberts assured him that there would be none. Roberts tes- tified that Meighan also stated that the respondent had assured him that the production and pay roll of its Gadsden plant would be doubled if labor troubles were kept down . Meighan denied making this last remark to Roberts . The following day Roberts and Cowherd met all three members of the Commission , J. H. Meighan, Dr. R. A. Burns, and Dr. George S. Vann , chairman . When the Commissioners stated that they did not want labor troubles , such as had occurred in Akron, to take place in Gadsden , Roberts assured them such troubles would not occur in Gadsden. Roberts testified, and Meighan and Vann 2° denied, that the three members of the Commission referred to assur- ances given them by the respondent that the pay roll and production of the Gadsden plant would be doubled if there were no labor troubles there. For reasons subsequently set forth, we find it unnecessary to resolve these conflicts in the testimony of Roberts , Vann, and Meighan. On June 18 and 19, the City Commission enacted several ordinances. One gave the police authority to enter homes and make arrests without a warrant ; one regulated the use of loud speakers, microphones, and other amplifying devices; 21 one was entitled "an ordinance to prohibit boycotting, unfair lists, picketing , of (sic) other interference with the lawful business or occupation of others , printing, or circulating notice or (sic) boycott, using force or threats against persons engaging in lawful occupations, attempting or threatening to injure or destroy property of another, unlawfully taking possession of property of an- other, teaching, printing books or papers , or organizing porsons (sic) to violate the provisions of this ordinance"; and the last was entitled "an ordinance prohibiting anyone from preventing or attempting to prevent any person from engaging in peaceful work or lawful in- dustry" 22 Although Vann, chairman of the Commission , testified that the ordinances were passed, not because of the United meeting but "due to a general state of unrest everywhere," Commissioner Meighan admitted that the United meeting probably "prompted" the passage of these ordinances. During their meeting with the Commission , Roberts and Cowherd asked that police be present at the June 20 meeting to preserve order and to protect the speakers and others present. Roberts and Cowherd informed the Commission that they were particularly afraid that employees of the respondent ,'and of the Gulf States Steel Company, 20 Burns did not testify at the bearing. 21 The Commission had denied Roberts ' request for permission to announce the June 20 meeting in Gadsden by the use of amplifying devices. 22 The last two ordinances were substantially the same as two ordinances enacted in 1926 by the Gadsden city officials. 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and of the Dwight Textile Mills, other large manufacturing corpora- tions in Gadsden, intended to break up the meeting or cause distur- bances at it. The Commission, as a result of the request of Roberts and Cowherd for police protection, authorized Sam L. O'Bannon, the Chief of Police, to obtain the services of as many special deputies for June 20 as he deemed necessary. O'Bannon testified that despite the fact that Roberts and Cowherd had told him and the Commission that they feared disturbances at the June 20 meeting by the employees of the respondent and of the Steel Company and the Textile Mills he decided to select his special deputies from the employees of these three plants, because "it occurred to me that they seemed to be afraid of those places; they said there was going to be some trouble coming, from those different plants . . . I said, `Let's see if we can't get some good men out of those plants that is for law and order' . . . there cer- tainly could be some law-abiding people in each plant." O'Bannon then interviewed Miller and asked Miller to send him whatever employees Miller believed "we could depend on . . . that would enforce the law and was for law and order." O'Bannon let Miller have free rein in picking out the employees to serve as deputies. O'Bannon testified that he did not ask Roberts or Cowherd for any aid in selecting the men to be chosen as deputies nor did he consult the Commission. Miller obtained Craigmile's consent to furnish the deputies. Miller testified that he, himself, selected most of the men, including eight members of the squadron, who were to serve as deputies, consulting Bottoms about the selection of some. Miller testified that he selected men for deputy duty who, he thought, were "dependable, reliable boys who were broad minded and could take care of themselves and do a good job for Chief O'Bannon." The list of those chosen includes many who had taken an active and leading anti-United part in the incidents of June 6 and June 8; such men as Crow, Pete Floyd, Joe Tucker, Chaffin, Jim and Carl Hudson, Jones, McGinty, Beck, Horace Lowry, Culberson, McGathey, Turner, Norris, McCulloch, Bottoms, Rudder, and Pete Dunn all were asked to serve as deputies. Miller admitted at the hearing that at the time he chose them for deputy duty he knew that Carl Hudson and McGathey had participated in the riots and evictions of June 6 and 8, and had heard that Rudder had also done so.' Miller also admitted that at this time he knew that Bottoms belonged to the employee group which was hostile to the United. In fact, the presence of Turner, Jim Hudson, Beck, Bot- toms, and McGathey on the employees' committee of June 8 which first saw Miller must have revealed to Miller the hostility of these men toward the United. Moreover, the anti-United feeling and activ- ity of McGinty was known to Goodall and Cunningham, and that of Pete Floyd was known to Hershiser. Finally, Craigmile knew of GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 341 the' hostility of all the members of the June 8 committee, such as Pete and Carl Dunn, Pete Floyd, Jones, Rudder, and Bottoms, toward the United. Yet Miller, acting pursuant to the authority given him by.Craigmile, selected these men to preserve order and protect the speakers and audience at a United meeting. Even at the hearing, Miller testified that he still considered that all these men had been well chosen for deputy duty. It is apparent that Miller in choosing "reliable boys who were broad minded" and "for law and order" could not have considered that participation in the rioting and evic- tions of June 6 and 8 or intense hostility toward the United dis- qualified an employee from serving as a deputy. In fact Miller testified : Q. How did you happen to select these 2 men [Rudder and Bottoms] and send them to the City Hall as special deputies? A. Those 2 we asked for in particular, we figure are 2 of our highest type personnel, they are dependable and good workmen. Yet Miller also testified : Q. You don't think it is characteristic of high type personnel for a man to have the reputation of beating up people and throwing eggs at speakers, do you? A. No, sir. Miller did not explain why, if the above testimony in regard to the characteristics of high-type personnel represented his opinion, he still chose such men as Rudder, McGathey, and Carl Hudson, for deputy service. We are of the opinion and we find that Miller, by selecting these employees for deputy service, when he or other supervisory employees of the respondent knew of the anti-United feeling of these employees and of their participation in and leadership of the events of June 6 and 8, showed the respondent's approval and ratification of this conduct and feeling of these employees. Moreover, Miller turned over complete control of the group of deputies to Bottoms. Miller gave the list of chosen men to Bottoms and not only let Bot- toms contact all the men on the list and ask them if they were willing to serve, but also allowed Bottoms to summon all the men to a meeting held on June 18 in the plant cafeteria during working hours and to address this meeting, and to explain the nature of their pro- posed duties to the men. In accordance with the testimony of McCulloch, a witness for the respondent, we find that Bottoms also mentioned at the cafeteria meeting the rumor that union miners were coming to "take" the,-town of Gadsden. McGathey also addressed this meeting in the cafeteria and warned the men "to go down there and hold -our. heads." 283032-41-vol. 21-23 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the morning of June 20 all the special deputies, including those from the Goodyear plant, assembled at the City Hall. Commissioner Burns made a short speech in which he told the men "don't go down shooting off your heads, don't be talking, just do your work .. . Remember, you are now working for Gadsden, and are its representa- tives. We are all in the same boat; we are going to rise or fall with Gadsden. It is a fight for Gadsden and Gadsden's people ... against radicals and outsiders coming in." Miller also was present and at the request of Commissioner Vann made a short speech to the assembled deputies. That afternoon the meeting was held and except for one or two minor events, such as the firing of a shot accidentally by one of the special deputies, no disturbances occurred. Most of the special depu- ties were stationed at points away from the meeting while it was held, but some of them, including Rudder, Crow, and Bottoms, never- theless managed to attend part of the meeting. All employees of the respondent who served as deputies were paid by the respondent for the time they thus lost from their work at the plant, the piece workers receiving their average hourly earnings. Craigmile testified that this, payment was made in accordance with the policy of the respondent to aid city or State authorities by furnishing employees for special duty and paying them their regular wages while on such assignments. d. The declarations B. E. Cleveland, an employee, was twice asked, while working in the plant shortly after June 8, by Earl Stein, an employee, to sign the declaration set forth below : We, the undersigned, hereby declare that our relations with the Goodyear Tire & Rubber Company of Alabama are now and have always been most satisfactory and pleasant. There is absolutely no difference between the management and ourselves at the present time, and should any differences arise in the future we feel certain that proper adjustments will be made by the management. It is our purpose to peacefully pursue our employment in the future, as in the past, and do not wish anyone to meddle in our affairs. We have made the above declaration voluntarily and without solicitation upon the part of our employer. Cleveland refused to sign, although Stein told him that he ought to do so if he "thought anything" of his job . Later another GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 343 employee, one Lacey, asked Cleveland in the plant to sign this declaration. Emmett D. Taylor, an employee, when he returned to work shortly after June 8 after several days' absence due to illness, saw Miller, who asked him if he "was satisfied with conditions in the plant" and if he was willing "to go back and go to work and be satisfied and make no complaint." Taylor testified that later, on June 23, while at work he was asked by Jones to sign a paper stating that he "was satisfied with conditions in the plant" and that the em- ployees "could get along all right without any outside interference" and settle their "own troubles through the local company representa- tion" plan; that he refused to sign; that a short time later Jones again asked him while he was working in the plant to sign; and that he again refused. Jones testified that he, himself, signed such a declaration in front of the plant but denied that he ever circulated it or asked Taylor to sign it. In view of Jones' numerous activities showing hostility toward the United at this time, we find the facts to be as set forth above in Taylor's testimony, which we credit. As hereinafter set forth, Taylor, a short time later, was discharged by the respondent because of his refusal to sign this declaration. Ruth Christopher, an employee, while working in the plant about a week before June 25 was asked to sign this declaration by Jordan, an employee, and refused. Later that day one Phillips, a supervisor in the tire room, when told by Christopher that she had not signed the declaration, informed her that she would "get in trouble" for not doing so. Christopher testified that that same day Superin- tendent Neiger summoned her to his office and said that he had been informed that she was not satisfied with her work in the plant and never had been and never expected to be; that she then told Neiger about being asked to sign the declaration; and that Neiger stated that he knew nothing about it. Neiger testified that he merely called in Christopher to rebuke her for other matters, and that, upon learning from her that the declaration was being circulated in her department, he told her that she need not sign it and ordered her foreman, Hershiser, to obtain the paper. Hershiser and Neiger both testified that they were unable to find it. We believe Christopher's testimony concerning this incident., and find the facts to be as set forth above in it. Bottoms testified that the declaration was circulated by Turner, Beck, and Jim and Carl Hudson between June 20 and 25; and that he had not circulated it but had signed it. Bottoms testified that the declaration was not circulated under the auspices of the Plan, of which he was then employee chairman. However, the evidence 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD showed, and Bottoms did not deny, that on June 17 the following statement had been published in the Gadsden newspapers : We, representing substantially all the workers in the Gadsden district, heartily endorse the editorial appearing in the Gadsden Times, issue of June 12, entitled, "Peace, Don't Disturb It." From our close and friendly contact with the people of this dis- trict we are satisfied that this editorial expressed the almost unanimous view of all classes of citizens. We take this method and occasion to assert that reasonable wages are being paid, satisfactory conditions and peaceful rela- tions exist between the workers and employers in this district. We are determined to maintain such conditions at all cost and will resist to the utmost any interference by outsiders or other persons with such relations, thereby endangering our jobs and inflicting injury on the community and the business interests thereof. We appreciate the fact that the business and professional peo- ple of the city and the community, as a whole, have assured us of their intention to stand by and support us in the stand we are taking for the support and happiness of our families, industrial peace, continuous work, and the consequent prosperity for the district. Gulf States Steel Company employees, by Charles M. Williams, Chairman, Gulf States Steel Protective Association; by C. A. Eaves, Chairman, Gulf States Advisory Committee. Dwight Manufac- turing Company employees, by J. Fred Wilson, Chairman. Goodyear Tire & Rubber Company employees, by T. L. Bottoms. On June 25, Bottoms, as chairman of the Plan, issued a statement, published in the Gadsden newspapers, that substantially every em- ployee had signed the declaration previously set forth. Miller testified that he had never given permission to Bottoms or anyone to circulate the declaration through the plant but that he was aware that employees were being asked to sign it. The facts set forth above show, and we find, that the respondent's supervisory employees, such as Miller, Neiger, and Phillips, indicated to employees the respondent's approval of the ideas expressed in the declaration and its hostility toward employees unreceptive to these ideas. e. The events of June 25 After the June 20 meeting there was considerable discussion among groups of the respondent's employees concerning a plan to drive the GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 345 United organizers once again out of Gadsden. Thus, McGathey tes- tified that he discussed such plans 2 or 3 days before June 25 with Norris, Culberson, Bottoms, and McCulloch. Norris corroborated this testimony of McGathey. We are of the opinion that the denials of this testimony of McGathey by Culberson, Bottoms, and McCul- loch are not to be credited. Rudder and Henry Lowry, an employee, had heard rumors of such a plan 2 or 3 days before June 25, and Craigmile and Miller both testified, and we find, that 2 or 3 days be- fore June 25 they overheard conversations of employees, including Rudder, Girard, Beck, Jordan, and Jim Hudson, concerning such plans. On June 25 these plans were carried out. About noon, 200 to 300 of the 400 employees then at work left the plant and proceeded to the downtown section of Gadsden to the Tolson Building where the United had its local organizing office. W. T. White, an employee, testified that shortly after lunch Clarence Lumpkin, an employee, came through the tire room and asked everyone there to go "to town" to protect their jobs; that some of the employees were reluctant to depart, expressing a fear of the police and machine guns; and that another employee, Pat- terson, stated that they should all go and not worry because "that has been taken care of . . . I have been scouting around for the past 2 or 3 weeks ... everything's all right . . . so far as the ma- chine guns is concerned if we need them we know where we can get our hands on them." White testified that he then asked Fore- man Goodall about leaving the plant; that Goodall told him to use his own judgment; that he asked Bottoms, whom he met as he was leaving the plant, what the trouble was; and that Bottoms replied, "If you have got the guts go on over town and help protect your job." Goodall and Bottoms denied the above testimony of White in so far as it related to conversations with them. We find the facts to be as set forth above in White's testimony, which we credit. O. O. Blackwood, an employee, testified that Patterson also asked him to go and help run out the organizers; that when he refused to do so, his supervisor, Clayton, ordered him to go out in front of the plant; and that when he did so, he met Bottoms, who said that he, Bottoms, wanted Blackwood to go to town with them, and put Blackwood in a car with several other employees, saying that he, Bottoms, "would be right over," that "the law ain't going to bother you ... that has been taken care of," that the organizers; no doubt, would come down for dinner at 12: 30, and that there will be "enough of you there to take their damn guns off of them and to run them out of town." Patterson and Clayton did not testify at the hearing; Bottoms denied this testimony of Blackwood. We find 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the facts to be as set forth above in the testimony of Blackwood, which we credit. Cartee, an employee, testified that he told his supervisor, Ed Browning, "They say they are fighting like hell over town, how about going over there"; that Browning replied that he would have to ask permission from Foreman Linn; that Browning left to see Linn; and that later Browning told him to go ahead and that he would not have to punch out. Browning testified that he did not recall whether Cartee had asked permission to go down town, and denied that he had ever given Cartee permission to do so or had seen Foreman Linn about such a matter. Ples Freeman, an em- ployee, testified that he was working with Cartee on June 25; that he refused to go down town with Cartee when the latter asked him to; and that he did not know whether Cartee had asked permission from Browning to do so. We find the facts to be as set forth above in Cartee's testimony, which we credit. W. E. Robertson, an employee, testified that about 1 o'clock that afternoon, after most of the employees had left, his foreman, L. E. Edwards, told him and three other employees, including Sam Mc- Coy, that they could go to town if they wished. Edwards testified that he told Robertson and the other employees that they could leave the plant, but denied that he said that they could go to town. Sam McCoy testified that he was working with Robertson that day and corroborated Edwards' testimony. We find the facts to be as set forth above in Robertson's testimony, which we credit. L. C. Brown, an employee, testified that after most of the em- ployees had left, his foreman, Charlie Eckles, told him and W P. Rooks, an employee, about 12 o'clock, to go "to town" since every- one else had gone. Rooks testified that Eckles merely told them that they might as well leave their work, too, since everyone had left and there would be no more work until the next shift. Eckles testified that he merely told Brown and Rooks that they could go home because there were no men there and there would be no work until the next shift. Glover, an employee, testified that as he was leaving the plant, Eckles sent him back to work to "take care of the stock," which might "burn." We find the facts to be as set forth above in Brown's testimony, which we credit. Not only did the respondent's supervisory employees expressly grant permission for, and often encourage, this exodus of employees from the plant, but many of them actually joined in the exodus it- self, and encouraged and aided the subsequent rioting. Supervisor McGathey took an active part in the planning of the exodus, left the plant with other employees, but because of an error in his plans took no active part in the actual riot itself. Supervisor Culberson ad- GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 347 mitted that he left the plant with the employees, but testified that he merely watched the rioting and never intended to participate in it. Cunningham, a shift foreman in the tire room, testified that upon his return from lunch he found only two or three tire builders at work; that he learned from them that the other men had gone to town; and that after informing Foreman Goodall of this fact, he, himself, went to town to see if his employees were there. Although Cun- ningham testified that he saw some of his employees there, he spoke to none of them and made no attempt to,induce them to return to the plant. R. B. Hundley, a department foreman, testified that he was sum- moned to the plant during his lunch hour by Eckles, then acting as his division superintendent; that he found most of his employees had gone; that he went to town to see "what had happened" to his men and to look for them; and that although he saw one of his men there he did not speak to him and made no effort to induce him to return to the plant. White testified that during the rioting he heard Hundley say to the rioters, "get them boys." Hundley denied making this remark, but we are of the opinion that his denial is not to be credited. We find the facts to be as set forth above in White's testimony. Carl Dillard, a shift foreman, testified that he went to town with Hundley in order to find out what the men were doing; and that he was merely a spectator during the rioting. White testified that he heard Dillard tell the rioters, "come on boys . . . there is five of them down at the Hotel Reich." D. W. Barnett, an employee, testified that Dillard encouraged the rioting by clapping his hands and telling the rioters, including Patterson, Crow, Jake Shew, an employee, and Tucker, to "beat the hell out of them and kill the sons of bitches, . . . [we] didn't ask them here"; and that later, in front of the Reich Hotel, Dillard told the rioters, "I heard that the miners are coming in here and you know what that means ... If we are going to get them, let's get them and give them the works." Blackwood testified that he saw Dillard in front of the Tolson Building and heard Dillard tell the rioters, referring to Mrs. Holmes, the wife of one of the organizers, "We ought to beat hell out of her too." We find the facts to be as set forth in the above testimony of Barnett, White, and Blackwood. The 200 or 300 employees who left the plant, together with other employees not then at work and other Gadsden citizens, assembled on the street in front of the offices of the United organizers in the Tolson Building in Gadsden. Members of the crowd shouted at the organizers, asking them to leave Gadsden. The organizers spoke briefly to the crowd, refusing to leave Gadsden and attempt- 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing to quiet and disperse the mob, pleading with the crowd to leave them alone. The mob took an informal vote to see if anyone had invited the organizers to come to Gadsden. Members of the mob began to demand action. Bricks were thrown through the door of the organizers' office, which was located on the second floor. The mob then rushed into the building and, breaking down the door as well as the barricade of furniture which the organizers had erected, administered severe beatings to Roberts and five of his fellow organ- izers, and destroyed all the furniture, equipment, and records in the office. Among the members of the mob were Bottoms, who partici- pated in talking to and beating the organizers; Henry Lowry, an employee who was an active assailant, armed with brass knuckles, and who saw blackjacks carried by members of the crowd; P. G. McDaniel, an employee, who broke into the office and "slugged," and saw one or two guns in the mob ; McCulloch, an employee, who was an active assailant and who saw a few blackjacks in the mob; Crow, who was active in the assaults ; Girard, Rudder, Pete Floyd, Horace Lowry, Pete Dunn, Carl Dunn, and Jim Hudson. Several of the respondent's employees, including McGathey, Turner, and Bill Norris, all of whom had guns, who intended to take an active part in the riot, had gone to the Reich Hotel, where the organizers were staying in Gadsden, in the hope of finding them there, and conse- quently did not take an active part in the riot at the Tolson Building. Warning of such a mob attack had reached the organizers on June 24. On that day, Organizer Roberts, after a short absence, had re- turned to Gadsden at noon. On his arrival the other organizers who had remained in Gadsden informed him that they had heard rumors that all the organizers were to be run out of Gadsden that afternoon. Roberts ordered the offices at the Tolson Building to be closed for the day and he, together with all his organizers, went to the Reich Hotel where they were staying. As he entered the lobby, Roberts no- ticed McGinty and another man sitting and watching him and the other organizers very closely. Roberts testified that he made no at- tempt to contact the police on June 24 since he had closed his office. On June 25, Roberts decided to, open his offices at the Tolson Build- ing, despite the fact that his organizers again warned him that there were reports that the organizers would be run out of Gadsden that day. On his way to the offices at the Tolson Building, Roberts stopped at the police station, which was a little over one block from the Tolson Building, and spoke to O'Bannon, the Chief of Police. Roberts testified that this was about 11:30 in the morning; that he informed O'Bannon that he had received rumors that the organizers were to have been run out the day before at 3 o'clock and rumors that they might be run out on June 25 at any time; that he asked GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 349 O'Bannon to send police at once to the Tolson Building; and that O'Bannon promised him to "take care of it." O'Bannon testified that Roberts mentioned rumors relating to the previous day and stated that the organizers were to be run out on June 25 at 3:30 in the afternoon; and that he promised to have police at the Tolson Building at that time. H. A. Wise, a policeman, testified that he overheard Roberts tell O'Bannon that he expected trouble about 3 o'clock. O'Bannon also testified that at about 8 o'clock that morn- ing, Commissioner Vann had warned him that there might be trouble at the Tolson Building about 3 o'clock that afternoon. Vann testi- fied that at 8 o'clock on the morning of June 24 or 25 he received a report at the police station, possibly from O'Bannon, that Roberts had said "that there was something brewing . . . and he wanted us to be vigilant"; that later that morning, at 9 o'clock, he sum- moned O'Bannon to his office; that O'Bannon stated that Roberts had asked for protection, saying he expected trouble about 3:30 that afternoon; and that he ordered O'Bannon to give protection. We find the facts to, be as set forth above in Roberts' testimony, which we credit. O'Bannon testified that when his police force reported for duty at around noon on June 25 he warned them to look out for trouble at the Tolson Building at about 3 o'clock that afternoon and in- structed those in squad cars and "them all" to be at the Tolson Building at that time. H. A. Wise and J. H. Robbins, members of the Gadsden police force who were on duty nearby the Tolson Build- ing, and Officer W. W. Thornton, denied that they ever received any instructions from O'Bannon concerning special precautions at any time that day for the Tolson Building or the organizers. Officer W. T. Abrams, who was assigned to a squad car, also denied re- ceiving such instructions. Officer James R. Lister testified that a day or so before June 25 he and O'Bannon had received a report that the organizers were to be run out at 3: 30 o'clock in the after- noon; that on June 25 they had received a similar report; and that O'Bannon then mentioned something to some of the police force about being "on the lookout" for trouble about this time on June 25. The only member of the police force who, testified that he had received any definite instructions from O'Bannon was Diggs, on duty in a squad car, who testified that he and six or eight other police- men were warned by O'Bannon on June 25 of trouble about 3:30 and told to be close to the Tolson Building then. In view of the above evidence, it is extremely doubtful, to say the least, whether O'Bannon ever gave the instructions he testified that he did, and, in any event, it is clear, and we find, that many of the police force then on duty did not receive such instructions. - Despite 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the warnings he had received both from Vann and Roberts, O'Ban- non took no other precautions on June 25 and made no attempt to investigate these reports of plans for assaulting the organizers. The action of the police force during the ensuing riots confirms the previous evidence concerning the inadequacy of Chief O'Bannon's precautions on June 25. Organizers Holmes and Roberts both testified that from the office of the United in the Tolson Building they and the other organizers there noticed a large crowd forming and blocking the street outside that building, between 12:30 and 1 o'clock. The organizers testified that after 12:30 they made re- peated calls to the office of Sheriff Leath, but always found the line busy; that during the same period they made several calls to the police station, and each time were told that help was on the way; and that no police arrived until after the mob had broken into their office, well after 1 o'clock. As the official police record introduced in evidence shows, and Lister, the desk sergeant, testified, at 1:05, in response to a telephone call from the organizers at the Tolson Building telling of their peril, Lister sent out a radio call for one squad car to come to the station. As a matter of fact, that squad car was already at the station, and the two occupants of it, Diggs and Abrams, were at the jail in back of the station questioning a suspect. Lister testified that he knew the squad car occupants had been questioning a suspect at the jail, but that he believed that the car had left prior to his send- ing out a radio call for it. The keys to the jail were in the custody of Lister, as desk sergeant. Diggs and Abrams had secured the keys from Lister and, when he sent out the radio call for them, had not yet returned them to him as they normally would have before leaving the station. Consequently, Lister's testimony that he believed that the two officers had left the jail and the station seems improbable, in view of the fact that they had not yet returned the jail keys to him. This radio call was never received by Diggs and Abrams and their first knowledge that they were wanted at the station came when they voluntarily entered the station after concluding their questioning of the suspect. The police blotter shows an entry of 1:08 p. in. as the time at which Diggs and Abrams supposedly answered the call by voluntarily entering the station. Lister testi- fied, however, that this time was not entered on the blotter until the next day, when the Commissioners, investigating the riot, ques- tioned him and decided that 1:08 represented the approximate time when the two officers reported at the station. As the police blotter for this day and Lister's testimony show, between 1:05 and 1: 15, two more telephone calls were received from the organizers, and Lister twice sent out radio calls summoning all squad cars to GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 351 the station. Lister testified that the last telephone call from the organizers informed him that the mob then was breaking into their office. Diggs and Abrams reported at the station at 1:08, according to the entry on the blotter. The station is less than 2 blocks away from the Tolson Building. Just before 1:15 a call was received from the Tolson Building, when the mob was first breaking into it. Yet, the evidence shows that when Diggs and Abrams arrived at the Tolson Building the organizers had already been beaten by the crowd. It is thus apparent that either the two policemen took well over 7 minutes to cover the distance between the police station and the Tolson Building, or that the time of 1:08 is an erroneous figure. We need not decide which conclusion is correct. However, Diggs and Abrams both testified that when they entered the station, sup- posedly at 1:08, several organizers, who had been beaten, were in the station. Such testimony indicates that the two officers first reached the station well after 1: 15. Four policemen, three of whom were on duty nearby the Tolson Building, were present during or at the end of the riot. The evidence is clear that for some time before the mob actually broke into the office, conversations were held by members of the crowd with the organizers in attempts to persuade the organizers to leave Gadsden of their own accord. During and before this period of negotiation, the mob blocked the entire street-one of the main business thorough- fares of the city-in front of the Tolson Building. Despite this fact, policemen on traffic duty within 2 or 3 blocks of the Tolson Building and in sight of it apparently knew nothing of the riot and did noth- ing to prevent it until after the organizers had been assaulted and beaten. Thus, Officer Gus Handy, apparently the first policeman to reach the scene of the riot, arrived when the mob was taking the organizers from their office to the street. Officer Thornton, hearing about the riot while at the station, went to the Tolson Building and escorted one of the organizers, who was being beaten, to safety. Officers J. H. Robbins and H. A. Wise, on traffic duty a few blocks from the Tolson Building, arrived after Handy and Thornton and escorted two organizers, who had received beatings, to safety. An explanation for the tardy interference of Handy, Wise, and Thornton is found in the testimony of James H. Owens, a bystander during the riots, never employed at the respondent's plant. Owens testified that as a matter of fact these three officers were present and watched the mob assemble at the Tolson Building and begin its assault, but did not attempt to interfere until after the organizers had been beaten. The investigation of the riot by Chief O'Bannon and the City Commission is conclusive evidence of the perfunctory protection 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD given the United organizers. Commissioners Vann and Meighan both testified that the Commission had ordered O'Bannon on June 26 to investigate the riot and that O'Bannon subsequently reported that he had interviewed "200 or 300" people, had been unable "to gather anything of importance," and had made no arrests. O'Bannon's description of his "investigation" is more revealing. He testified : I just walked up to a man and asked him if he knew who it was that beat up them men, and he told me no .. . Q. About how many did you ask questions like that? A. Three or four. O'Bannon made no attempt to interview any of the beaten organizers or any of the United members in Gadsden. He testified that he discovered the identity of none of the rioters. Commissioners Vann and Meighan both testified that the Commission had been fully satis- fied with O'Bannon's conduct during the riot and his subsequent investigation of it. The explanation of O'Bannon's failure to protect the United organ- izers and properly to investigate the riot is revealed by the remarks which he made to Dalrymple when the latter first came to Gadsden early in June. O'Bannon testified that lie told Dalrymple that the organization of the Gadsden plant was "a pretty good job" and that "I got knocked out of my vacation last year on account of a strike and I don't want that to happen again-you just as well go on back, I don't believe these people can be organized." The latent hostility implicit in these remarks of O'Bannon to Dalrymple clearly comes to light in O'Bannon's part in the June 25 episodes. Moreover, after the June 6 beating of Dalrymple, O'Bannon and the Commission made no investigation of this incident. Commis- sioners Vann and Meighan explained this fact by stating that they considered the courthouse under the jurisdiction of the county and Sheriff Leath. However, Vann admitted that the courthouse was within the city's police jurisdiction, which is "responsible for the protection of individuals and property" in the courthouse. Two city policemen, Diggs and Abrams, as previously set forth, were present during part of the courthouse riot. And, finally, the actual beating of Dalrymple occurred on the streets of Gadsden. Commis- sioner Vann never even conferred with Leath to discover whether the latter was investigating this incident. The actions of Sheriff R. A. Leath during this period bear remark- able similarity to those of the city authorities. Leath's investiga- tion of the Dalrymple beating, which occurred in his presence when he allegedly was attempting to protect the assaulted man, was as perfunctory and inadequate as that made of the June 25 riot by GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 353 O'Bannon. Icath testified that his investigation consisted of asking people on the street corners, on the night of June 6 and the follow- ing day, questions concerning the identity of the participants in the beating; that he obtained no information by his interrogatories; that he made no attempt to question any United members or sympa- thizers; and that, as he himself had recognized none of the assailants, his investigation, such as it was, had no results. Moreover, E. H. -Harrell, a railroad worker never employed by the respondent, testi- fied that about a week after June 6, Leath told him that on June 6 he, Leath, and the City Commission had let their "men get out of the way . . . turned their men loose" and "let this other bunch run" Dalrymple "out of town."' Leath denied this testimony, but for reasons hereinafter set forth we find that his denial is not to be credited and that he made the remarks testified to by Harrell. Leath's remarks to Harrell may explain the difficulty Doyal had in obtaining the aid of the police on June 6, and the conduct of Officers Diggs and Abrams on June 6, previously described. The explanation for Leath's conduct is revealed by testimony showing Leath's deep-seated hostility toward the United and its organizers. Milan and Hayes, two employees of the respondent, who had been discharged on June 8 pursuant to the demand of the employees' committee, were driving on the streets in Gadsden on June 25, a short time after the rioting at the Tolson Building had ended, when a car containing three Goodyear employees, Foreman Fred Bell, Horace Lowry, and Claude Dorough, a squadron mem- ber, drove up beside them, and Dorough ordered them both to leave Gadsden at once. After reporting this threat to Officer Stewart, the two employees met Sheriff Leath and informed him of the threat they had received and asked him to protect them. According to the testimony of Leath, he replied : "You don't need protection, you are just running around with this crowd showing yourself, you go on home with your wife and work in your garden and you won't need any protection . . . If you will just get out of this racket and go on home, you will be all right . . . You are running around with that organizing crowd . . . let things alone and go home." Milam and Hayes testified that Leath also told them that they needed no protection, that they were on the "wrong side," that, if they were on the "right side," they could get protection, and that they had lost the best job they had ever had by "fooling around running around here with these damn Yankees." Leath denied this testimony of Milam and Hayes, but in view of what he admittedly told these two employees, we find that his denial is not to be credited. The record contains other evidences of Leath's hostility toward the United. Mrs. Vicie Holmes, the wife of one of the organizers 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assaulted on June 25, testified that in the summer of 1937, Leath told her, "I am not for the C. 1. 0. and I will tell the world when it sits down in Gadsden, it will sit down on hot lead." Leath ad- mitted speaking to Mrs. Holmes at this time but denied the remainder of her testimony. E. H. Harrell testified that in 1937, Leath told him that he, Leath, "hoped to run . every one of them out of town that belonged to the C. 1. 0." Leath denied this testimony of Har- rell. We give no credence to Leath's denials of this testimony of Mrs. Holmes and Harrell. Finally, Leath admitted that he stated at a banquet given in Gadsden in the winter of 1936-1937 that he, Leath, was not in favor of the "red radicals" and "Communists" that "we had in the town . . . we gave them bitter weed when they were here before, and let us give them a hell of a sight more of it when they come back." According to the testimony of Leath, on June 25 he was at or near the Tolson Building for about 20 minutes around noon and saw no unusual crowds there then. Leath testified that after leaving the Tolson Building he went to his office in the nearby courthouse and first heard of the riot when he received a telephone call about 1:30, 20 minutes after he had left the Tolson Building, reporting it; whereupon he and a deputy, J. H. Carroll, went toward the Tolson Building but, finding the riot finished there, proceeded to the police station. Numerous witnesses contradicted this testimony of Leath. White, an employee of the' respondent, testified that immediately before the mob assaulted the organizers he saw Sheriff Leath on the street, coining from the Tolson Building, heard someone ask Leath what the trouble was, and heard Leath reply : "just a couple of fellows arguing . . . it doesn't amount to anything" ; and that Leath thereupon deliberately walked away from the rioting. James H. Owens, a painter never in the respondent's employ, testified that about 1 o'clock he met Leath on the street in front of the Tolson Building, just as a mob of 50 to 100 men was throwing bricks through the organizers' office; that he pointed out to Leath that it was the latter's duty to stop this rioting; and that Leath deliberately walked away from the crowd, laughing and saying, "I was up there about five minutes ago and there was just 2 or 3 men up there arguing." Holmes testified that he saw Leath on the street in front of the Tolson Building immediately prior to the beginning of the riot when the crowd was beginning to assemble. R. W. Gable, never employed by the respondent, testified that sometime between 1 and 1:30 that afternoon he saw Leath walk into the courthouse, and that Leath, in reply to a question as to what was happening at the Tolson Building where the mob was forming, answered, "I think they are GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 355 fixing to auction off some Yankees." Gable testified that, following Leath into the latter's office, he heard Leath answer a telephone call; that Leath then told him, "They are breaking in on those fellows up there and want me to come there, damned big fat Jew with 400 men"; and that Leath then sat in his office and talked for 15 minutes before leaving, saying as he left that he was going to see "if they had done a good job" and that he hoped that "they killed every damn one of them Yankees, why didn't they stay where they be- longed and let us run our own business here." Carroll, a deputy, testified that for 5 minutes he stood and watched the mob threat- ening the organizers and fighting at the Tolson Building; that finally, not seeing Leath anywhere, he went to the courthouse to notify Leath of what was happening; that as he arrived at the courthouse he heard Leath answer the phone ; and that immediately after receiving the phone call, Leath and he left for the scene of the riot, but that all the rioting was over when they arrived there. Barney McClen- don, another deputy, corroborated Carroll's testimony that Leath, immediately after receiving a telephone call concerning the assault on the organizers, left for the riot. However, McClendon -testified that, although he did not go to the Tolson Building until 5 minutes after Carroll and Leath had left for there, when he, McClendon, arrived the rioting was still going on, and that he saw Officer Thorn- ton carry off one beaten organizer. It is apparent from McClendon's testimony that Carroll and Leath, leaving 5 minutes before Mc- Clendon did, must, contrary to their testimony, have arrived before the riot was over, and yet, according to their testimony, they took no steps whatsoever to stop the assault. Moreover, if Leath, as he testified, left the Tolson Building but 20 minjutes before receiving the telephone call informing him of the rioting, and then after re- ceiving this telephone call proceeded at once to the scene of the assault and found all the rioting finished, it seems very unlikely that he did not see the mob assembling at the Tolson Building when he first was there, unless he delayed going to the riot after receiving the telephone call about it, or unless he arrived before the beating of the organizers was finished. Despite Leath's denials, we find the facts to be as set forth above in the testimony of White, Gable, Holmes, and Owens regarding Leath's activities on June 25. Our finding is supported by the fact that Leath on the witness stand was a most evasive witness. When first called as a witness, Leath, on cross-examination by counsel for the Board, testified that although he signed recommendations for people desiring employment by the respondent he never mentioned "any union" in these recommendations, only stating that the appli- cants "will work satisfactorily" and give the respondent "no trouble." 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When recalled to the witness stand later by the Board's counsel, Leath, confronted with a recommendation which he admitted had been signed with his name by one of his deputies to whom he had delegated such authority, testified that, as stated in this recommenda- tion, he often put in employment recommendations for the respondent the sentence that the applicants "won't give any labor trouble," mean- ing thereby that the applicants would not "go through a sit down and refuse to work, and just mouth about ... they will make them good reliable men." 23 Leath testified that he made no attempt to investigate the Tolson Building riot, because he considered that this incident fell within the jurisdiction of the city authorities : "The policemen had it in charge, and fighting is only an assault. There was nobody murdered and nobody cut, just fighting." The beaten organizers were taken by policemen to the police sta- tion, where their wounds were dressed. Roberts testified that then he spoke to O'Bannon, who stated that he, O'Bannon, had believed that the riot was to occur at 3 o'clock; and that when he said that 3 o'clock had been the time set for yesterday, O'Bannon replied that he had misunderstood. O'Bannon testified that when Roberts spoke to him at the police station, Roberts accused him of not protecting the organizers; that he told Roberts that Roberts had informed him the attack was to occur at 3:30 o'clock that day; and that Roberts admitted this fact. We have reviewed the evidence and find that Roberts' testimony is to be believed and that he informed O'Bannon both before and after the riot that the riot would occur at any time on June 25. After their wounds had been treated at the police station, the organizers were taken by the police to the Reich Hotel, but, finding a large crowd there, the police escorted them out of Gadsden. The activity of James H. McGinty at this time, whose leadership in the beatings and evictions at the plant on June 8 has previously been set forth, merits special discussion. We have already set forth how Roberts, upon his arrival in Gadsden on June 24, noticed McGinty sitting in the lobby of the Reich Hotel, closely watching Roberts and the other organizers. McGinty admitted his presence at this time in the Hotel, but claimed that it had no connection with the arrival of the organizers, and testified that the organizers, upon discovering his presence in the Hotel, surrounded him and threatened to assault and kill him, but that he escaped when one of the organ- izers was summoned to the telephone. McGinty testified that on 23 The testimony of Leath as to whether or not James Karam was a deputy on May 31, 1937, is another illustration of Leath's reluctance to tell the truth on the witness stand. See Section III-D, infra. GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 357 June 25 he spent the entire morning preceding the riot down town in Gadsden, and that part of this time lie watched the office of the or- ganizers in the Tolson Building. McGinty claimed that his reason for this espionage was a desire to obtain revenge upon the organizers, who had threatened his life the day previously. McGinty further testified that during the actual riot, despite his desire for revenge, he took no active part, but merely stood by and "watched it well done," although he admitted entering the office of the United in the Tolson Building at this time. Roberts, however, identified McGinty as one of his assailants on June 25, and we credit Roberts' testimony. Toward the end of the rioting, at the request of an officer, McGinty escorted to the police station a beaten organizer who, he stated, had been his assailant the day before. Frank McGinty, James' brother, testified that on the evening of June 25 his brother James came to his house and obtained a shotgun; that he and James went to James' home; that there both of them joined a group of men in a car, includ- ing Carl Dunn and one Lumpkin, both employees of the respondent; that this group drove out to the Gadsden plant and to the home of Miller; and that James had a shotgun and Dunn a pistol. Frank testified that Miller came out to their car and told Carl Dunn to "cruise around" the Reich Hotel and if he saw Bill Mitch, president of a local of the United Mine Workers Union; to "get" Mitch "out of town"; and that then the group rode around Gadsden and looked into the Reich Hotel, but was unable to find Mitch. Frank testified that, after working at the respondent's plant from April 1934 until April 1936, he quit his job there because of ill health, and did not return to work until July 1, 1936; and that he did not join the United until April 28, 1937. James McGinty testified that shortly before June 25, 1936, his brother Frank was a member of the United ; that Frank, shortly before June 25, 1936, informed him that the United members intended to assault him, Miller, and Goodall that evening; that, due to the illness of his wife, he wished to avoid any trouble at his home; that after arming himself with a pistol, he and Frank, together with Carl Dunn and Lumpkin, "away after midnight" went to see Miller, in order to warn Miller, to obtain protection for McGinty himself, and to "get" the men after him and Miller; that Miller reassured him; and that he warned Miller that Bill Mitch was "a dangerous man." James McGinty testified that he made no effort to obtain protection from either the police or the sheriff; and that Carl Dunn was present because he, too, had come about midnight and warned him, James, of the proposed beating. Miller corrobo- rated James McGinty's account of this incident. Holmes, an officer of the United in 1936, testified that Frank was not a member of it at that time. 283032-41-vol. 21-24 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We have already pointed out in connection with the June 8 inci- dents the falsity of much of McGinty's testimony, as shown by wit- nesses for the respondent and for the Board. We are of the opinion that his testimony concerning his presence in the hotel lobby on June 24 and his actions on the evening of June 25 is equally false and entitled to no credence. We find the facts to be as set forth above in the testimony of Frank McGinty. In fact, James McGinty's ac- count of his actions on June 25 is most improbable. Although, according to his own testimony, he especially desired to guard his sick wife, he made no effort to obtain police protection. Further- more, it seems very unlikely that he would have gone to see Miller, according to his own testimony, at an hour "away after midnight," without having a previous understanding with Miller. We find that James McGinty at this time was acting as a spy for the respondent on the activities of union organizers in Gadsden. This finding is fortified by the respondent's subsequent treatment of James McGinty. James McGinty had been hired by the respondent in February 1936, and shortly before June 25 but subsequent to June 8 he had asked Miller and Goodall for a transfer from his position as a tire builder to the police force at the respondent's plant, alleging as a reason there- for his inability to build tires because of a "sprained wrist." On July 6 or 8, 1936, McGinty's request was granted by the respondent and he became a member of the respondent's police force, a position he held at the time of the hearing in the instant case. Although Miller and McGinty both testified that this transfer was not a pro- motion, the evidence shows that the work as a police officer is much steadier than that of a tire builder, and that the respondent itself considered the duties of a police officer of an unusual nature. As indicated by testimony of Bottoms concerning Horton, previously set forth, and as Miller himself testified, the respondent considered it highly improper for any member of its police force to join a union, because it desired its police to be neutral in the case of any conflicts among its employees. Despite this attitude of the respondent, it promoted McGinty to the police force, although its supervisory em- ployees, such as Goodall, were fully aware of McGinty's intense hostility toward the United, as revealed by his participation in the June 8 occurrences. Furthermore, McGinty's participation in the June 8 occurrences, in which he assaulted three employees of the re- spondent and, according to their testimony, deliberately defied super- visory employees of the respondent who attempted to discipline him, would hardly seem to reveal those qualities which the respondent ordinarily would desire of the members of its police force. We find that McGinty was deliberately promoted by the respondent to its police force, despite its knowledge of his activities in the June 8 GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 359 occurrences, as a reward for his participation therein and for his espionage work for the respondent on June 25. The respondent administered no punishment to the several hundred employees who without permission left their work at the plant for several hours on June 25. The respondent's officials testified that most of the employees guilty of this conduct were piece workers and con- sequently received no payment for the time they were gone from the plant, and that Michaels issued an order that none of the salaried or hourly paid employees were to receive any pay for the time they spent out of the plant on June 25. Irrespective of whether or not Michaels ever issued such an order, the evidence is clear that the enforcement of Michaels' order by officials of the respondent was desultory and perfunctory. Since very few of the employees punched their clock cards when they left the plant at noon on June 25, these cards reveal no irregularities. The pay rolls are based also on time sheets pre- pared for the employees by their foremen or supervisors. These officials made little effort to enforce Michaels' orders. Rudder, who was absent at least an hour and a half, and Crow and Horace Lowry, both of whom left their work to go to the rioting, all received their regular hourly pay in full on June 25. Culberson, who left his work to go to the rioting, was paid in full for this time. Craigmile testified that Culberson informed him that he had obtained permission from his foreman, Mallory, to absent himself at noon that day to see a minister, and that he did see the minister. Culberson, when ques- tioned at the hearing concerning his pay on June 25, made no mention of obtaining such permission or seeing a minister. We give little credence to this testimony concerning the minister. Moreover, in view of the mass exodus of the employees that day, the suspicious nature of Culberson's excuse must have been readily apparent to Mallory, but there is no indication that either Mallory or any other official of the respondent attempted to investigate it. Craigmile testified that, dur- ing the hearing on November 22, 1937, in response to his questions, Bottoms, Pete Dunn, and Turner informed him that, although their time cards showed that they had punched out at the usual hour on June 25, they actually remained in the plant for several hours there- after in order to make up the time they had lost from their work during the rioting. The respondent offered no records whatsoever to prove that these employees actually did work overtime, contrary to the evidence of their time cards. There is no evidence that on June 25 or shortly thereafter any foreman or supervisor checked up on Dunn, Turner, and Bottoms in order to ascertain whether they should be paid in full or not. Yet both Miller and Michaels on June 25 or shortly thereafter knew that Bottoms had been at the rioting. In view of these facts we believe that no credence can be given to the 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statements of the above employees, made long after June 25, that they actually worked overtime on that day. Jim Hudson, who testified that he was a working supervisor in charge of a crew of three men, could not recall if he was paid in full on June 25, but testified that he received no orders forbidding such payment and that he recalled that employees in his department, the engineering, had considerable debate whether or not to deduct on their time cards for June 25 the 2 hours they had spent at the Tolson Building. Finally, Cartee, a piece worker, testified that, after returning from the Tolson Building riot, he asked his supervisor, Browning, how to make out his time card, and was told by Browning to "add enough pieces to make out your rate"; and that he did so, and was paid in full. Browning denied making such a remark to Cartee, but we find that he did so. This remark to Cartee casts serious doubt on whether or not many of the respondent's other piece workers who participated in the riot were not paid therefor by the respondent. f. The sermon of the Reverend W. S. Hullett On June 28, 1936, the Sunday following the Tolson Building riot, the Reverend W. S. Hullett, minister of the East Gadsden Methodist Church, in accordance with an announcement previously made in the Gadsden newspapers, preached a sermon entitled "The Black Shadow of Terrorism, or Gadsden (sic) Sorrow." In this sermon Hullett said that the announcement in the newspapers that the employees of "one of our great industries" had signed a statement that they were satis- fied with wages, hours, and working conditions, and that the employees "were unanimous" in so stating, was "a lie," because it was "too unani- mous"; that if some of the employees had refused to sign this state- ment, they would have lost their jobs; and that some employees signed because "they were afraid not to sign it." Hullett's remarks clearly referred to the declarations circulated in the plant and the newspaper statements issued by Bottoms and the Plan on June 17 and June 25, as previously set forth. On Tuesday, June 30, Hullett was warned by Dr. J. D. Hunter, presiding elder of his church, that the sermon had caused much comment in Gadsden and was "going to get" Hullett in trouble; and that he, Hunter, had learned on good authority that Hullett was "going to be mobbed." That very evening, Harry Trussell, a member of the squadron at the Gadsden plant and also a member of Hullett's congregation, came to see Hullett. Trussell testified that the various members of the squadron on Monday, June 29, at the plant, had complained to him about the statements above mentioned, con- tained in Hullett's sermon; and that later that day, Bottoms, a rather inactive member of Hullett's congregation, had also told him about receiving similar complaints from various tire builders in the plant. GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 361 Bottoms was then employee chairman of the Plan. Trussell testified that Bottoms stated that he wished to see Hullett concerning the sermon and desired Trussell to arrange for the interview. According to Trussell, since he was unable to find Hullett that afternoon, he and Bottoms saw Hunter, who agreed to talk to Hullett about this sermon. Trussell testified that a short time later Hunter informed him that Hullett was very much excited because of rumors that he, Hullett, was going to be mobbed; and that Hunter asked him to see Hullett and con- vince the latter that there was no such danger. Hullett testified that Trussell informed him that a mob was form- ing, but that if he, Hullett, would apologize for the statements in his sermon, Trussell believed that "they" would be able to stop the mob ; that he offered to apologize for using the word "lie" in his sermon; and that Trussell then stated that he "would get in touch with the right parties," and attempted, unsuccessfully, to telephone Bottoms and Miller. Trussell denied telling Hullett that a mob was forming, and testified that he merely advised Hullett to clear up the matter by apologizing for the statements in his sermon. We credit Hullett's testimony and find the facts to be as set forth above in it. Hullett was extremely alarmed for the safety of himself and his family and left Gadsden that evening. The following morning he returned alone to his home and telephoned the Governor of Alabama and arranged for State police to be sent to Gadsden to protect him at his home. The police arrived that day. That same morning, Bottoms and Trussell saw Hullett at the latter's home. Hullett informed them of the request he had made to the Governor for pro- tection. Hullett testified and we find that he accused them of trying to run him out of town; that he told them that he would not go; that he offered to apologize for using the word "lie"; and that they informed him that if he apologized they "could get the matter stopped." Trussell denied telling Hullett that he "could get the matter stopped," but we find that his denial is not to be credited. Trussell testified that after this interview with Hullett, he and Bot- toms saw Miller at the plant and told him what had happened; and that Miller stated that it "looks to me like I am going to have to get you out of another hot spot" ; and that thereupon Miller and Bottoms went to see Hullett. Hullett testified that Bottoms and Miller in their interview with him offered him protection against "their men" if he would cancel his request to the Governor for pro- tection ; and that he agreed to do so and later telephoned the Gov- ernor, who warned him not to look to the respondent for protection and insisted upon the State police remaining with him that night. Bottoms testified that he and Miller merely offered Hullett protec- tion as far as they were concerned. We believe Hullett's testimony. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hullett also agreed to issue a public apology for the above-men- tioned statements in his sermon, and shortly thereafter he did so. Bottoms testified that he insisted that Hullett apologize for the above-mentioned statements in his sermon. Miller testified and we find that in the interview with Hullett he informed Hullett that he, Hullett, had erred in preaching the sermon and had thereby lost the confidence of the respondent's employees. In view of the manner in which the declarations were circulated in the respondent's plant and the statement concerning them issued to the press by Bottoms as chairman of the company-dominated Plan, it is clear that the statements to which the respondent objected in Hullett's sermon were true. It is also clear that the respondent, through Miller, ratified the attempts of Bottoms and Trussell to utilize the fears of Hullett to obtain an apology from the latter for the statements in his sermon which reflected on the respondent's labor policies. 2. Conclusions The complaint alleges that the respondent, by denouncing the rights of its employees to organize, and by creating the impression on the law-enforcement officers of Gadsden that the respondent's operations at its plant would be increased if the organizing activity of its em- ployees was prevented, caused the officers and organizers of the United to be afforded insufficient protection from violence and assault in Gadsden. The evidence and facts set forth previously establish that, as the complaint alleges, the officers and organizers of the United were not afforded appropriate protection from violence and assault in Gadsden. The City Commissioners openly showed their hostility toward the United and their failure to safeguard its adherents by their failure to investigate the Dalrymple beating, their passage of the previously described ordinances on June 18 and 19, their ratifica- tion of the selection of deputies for the June 20 meeting by their agent, Chief O'Bannon, their statements to these deputies revealing their antipathy toward the United, their failure adequately to investigate the June 25 riot, and their ratification of the acts of their agent, Chief O'Bannon, in connection with the prevention and investigation of that riot. The hostility of Chief O'Bannon toward the United, and his failure to afford United agents appropriate protection in Gadsden, are shown by his remarks to Dalrymple when the latter first arrived in Gadsden, his failure to investigate the Dalrymple beating, his selec- tion of deputies for June 20 from sources he knew were hostile to the United, his inadequate preparations, despite the warnings he had received, to protect the organizers from the rioters on June 25, and his desultory investigation of the June 25 riot itself. Dalrymple's diffi- GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 363 culty in obtaining the aid of the police on June 6 and the peculiar conduct of Officers Diggs and Abrams during the Dalrymple beating are further evidence of the insufficient protection given the United organizers. Finally, Sheriff Leath failed to afford United organizers protection in Gadsden, revealed his hostility toward them, and de- liberately encouraged attacks on them, by his failure adequately to investigate the Dalrymple beating, his remarks to Harrell indicating that he fully approved of that beating, his remarks to Harrell and Mrs. Holmes in 1937, his deliberate refusal to interfere with the June 25 riot despite his presence during it, his failure to investigate this riot, and his refusal of protection to Hayes and Milam on June 25. The Reverend Mr. Hullett, when threatened with danger because he had uttered statements reflecting adversely on the respondent's labor policies, appealed for protection to the Governor of the State. In fact, the evidence introduced at the hearing shows that when the United organizers in 1937 once again ventured into Gadsden to or- ganize the respondent's employees, they followed the example of Hullett and obtained the protection of the State police for United meetings. There is also evidence, such as the testimony of Roberts previously set forth concerning remarks made to him by Reich and members of the City Commission, that many citizens of Gadsden believed that the respondent's operations at the Gadsden plant would be increased if the United's organizing activities were prevented. However, even accepting Roberts' testimony as true, there is no credible evidence in the record that the respondent prior to 1937 was responsible for the existence or growth of this belief in the community of Gadsden. There is no evidence that prior to 1937 the respondent's officials ever made, approved, or authorized statements to such effect. We find that as the complaint alleges, the respondent denounced the right of its employees at the Gadsden plant to organize. As previously set forth, from the very beginning of the United's exist- ence in Gadsden, the respondent not only closely followed the United's activities but also lost no opportunity to show its employees clearly its dislike for that organization. Coincident with the be- ginning of the United, the respondent put into effect at the Gadsden plant a company-dominated union, the Plan. Thereafter the re- spondent's supervisory employees made clear to all employees that the respondent desired them to participate in the Plan by voting and by running for office. When Dalrymple interviewed Michaels and Craigmile at the plant on June 4 in regard to the discharges of Gray and Apperson, both Michaels and Craigmile stated that the respondent considered that the Plan and not the United was the proper medium for the discussion of these discharges. The remarks, 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD previously set forth, made by Superintendent Neiger to DeBerry, Bazemore, Caudle, and Cartee, all of which occurred before the Dalrymple beating, as well as Michaels' statements before and during the June 4 conference with Dalrymple, are additional examples of the respondent's denunciation of the right of the employees to organ- ize. Furthermore, the events occurring in Gadsden, as previously set forth, between June 6 and June 30, were expressions of the re- spondent's opposition to the employees' right to organize, and the respondent must bear responsibility for the occurrence of these events. Pete Dunn, Ralph Chalfant, and Jones urged employees at the plant to participate in the Dalrymple beating. McGathey was the leader in breaking up this meeting, assisted by Pete Dunn, Jones, and Bot- toms. Bottoms and Crow were active participants in the beating of Dalrymple. During the June 8 evictions the respondent allowed its employees to dictate to it an anti-United employment policy, pun- ished none of the participants in these occurrences, through the actions of its supervisory officials, Goodall and Tucker, actively participated in these beating and evictions, and through the state- ments and the conduct of Neiger and Michaels expressed approval of them. The activity of Craigmile, Culberson, and McGathey on behalf of the employees' committee revealed the respondent's hos- tility toward the employees' right to organize. The circumstances surrounding the circulation of the declarations in the plant as shown by the previously set forth testimony of Taylor and Cristopher, and the statements of Miller and Bottoms to Hullett, are facts in sup- port of this allegation of the complaint. The events of June 25, during which Browning, Goodall, Bottoms, Clayton, Edwards, and Eckles urged or permitted employees to leave the plant, Hundley, Dillard, McGathey, and Culberson participated in or encouraged the very riot itself, and after which the respondent's officials not only imposed no penalties but even in many instances paid the employees for the time spent at the riot, are further facts supporting this allega- tion of the complaint. In fact, shortly after June 25, Nigosian, head of the engineering department, told Troy Higdon, an employee, "we are not fighting organization on craft lines but we are fighting this industrial organization." Two points in relation to the occurrences referred to in the preced- ing paragraph must be considered. First, counsel for the respondent during the hearing stated that it should not be held responsible for events occurring outside its plant. Many of the events previously described, however, such as the June 8 incidents and the circulation of the declarations, occurred entirely within the plant itself. Other events, such as the selection of the deputies for June 20, and the events of June 25, although occurring in part outside the plant, were GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 365 clearly connected, as the respondent itself recognized at the time, with the operation of the plant. Moreover, the respondent itself did not hesitate on occasion to participate in events outside its plant when it considered itself involved. Thus, although the respondent contends that the Dalrymple beating was none of its concern, Miller admitted that he interfered in the events connected with Hullett's sermon, although the latter incident also occurred entirely outside the plant. Moreover, it should be noted that in many of these events which occurred in whole or in part outside the respondent's plant, supervisory employees of the respondent, for whose conduct the re- spondent must be held responsible, participated, and in other cases the respondent must be held responsible because by later acts it rati- fied and showed its approval of acts committed by its employees out- side its plant. The discussion of this argument can be better devel- oped in connection with the respondent's second point, which is that the respondent is not responsible for most of the foregoing events because they were committed by employees who cannot be held to have acted therein as agents of the respondent. We are of the opinion that certain of these employees had sufficient supervisory powers and duties to make them agents of the respondent. Thus Michaels, Neiger, Miller, Craigmile, Nigosian, and shift and department fore- men, such as Chalfant, Goodall, T. P. Smith, Hundley, Eckles, Ed- wards, and Dillard, are employees who must be considered as acting as agents for the respondent. Moreover, working supervisors, such as McGathey and Culberson'24 who, although they spend part of their time in ordinary production and maintenance work, spend at least 50 per cent of their working hours directing the work of the 20 or 30 men under them, assigning these employees to jobs, getting materials for them, inspecting and reporting on their work, and instructing them, are employees for whose conduct the respondent must be held responsible.25 Obviously the same principle is true of non-working supervisors, such as Phillips, Clayton, and Browning, and of labor trainers, such as Tucker, whose functions Tucker testified were "prac- tically the same" as supervisors. We have already adverted to the peculiar position of squadron members. The fact that they are a select group in an intimate rela- tionship with the management; the fact that they are given special training and have special prospects; the fact that they are prone to regard themselves as part of the supervisory staff; the fact that their '+ Jim Hudson testified that he was a working supervisor or gang pusher. However, there are only three employees working under Hudson, and in view of the lack of other evidence concerning Hudson's position , we do not find his work sufficiently supervisory to make the respondent responsible for his actions 25 Cf. Matter of Borden Mills, Inc. and Textile Workers Organizing Committee, 13 N. L. R. B 459, and cases therein cited. 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interests are those of foremen rather than those of the rank and file of employees; the fact that all during the period under discussion the only members of the squadron concerning whose activities there is any substantial evidence in the record allied themselves with the supervisory employees in carrying out the respondent's anti-United policies, all lead us to find that the respondent must be held re- sponsible for the acts and statements of the members of the squad- ron.25a Moreover, in the case of certain members of the squadron, as well as in the case of certain employees, whether or not their acts when committed were the acts of the respondent, the evidence is plain that the respondent by its subsequent conduct fully ratified these acts and made them its own. Thus, on June 8 the respondent, by laying off or discharging 12 employees and summoning 8 others before the employees' committee in Craigmile's presence, as hereinafter set forth, ratified the acts of that committee and the evictions which had pre- viously occurred in its plant. On June 20 the respondent's officials, as Miller himself testified, chose for special deputy service employees whom they considered reliable and dependable. The activity of many of them in the previous anti-United events, such as Jones, McGinty, Carl Hudson, Bottoms, Pete Floyd, Pete and Carl Dunn, Beck, Turner, Jim Hudson, and Rudder, was known to Miller or other officials of the respondent, such as Craigmile, when they were selected. The respondent's officials by selecting such individuals with knowledge of their previous participation in the anti-United events openly ratified their participation in such events. Moreover, the respondent's failure to punish any employees for the June 25 exodus from the plant coupled with its payment of many of them for the time spent away from the plant, constituted ratification of the anti- United activities of these employees. Finally, the respondent, in many instances within a short time after June 25, showed full ap- proval of the activities of these employees by giving them supervisory or trustworthy positions in the plant. In some cases, such as those of Bottoms 26 and McGinty, the respondent's officials were actually aware of the previously described activities of these employees when it promoted or transferred them. Moreover, the respondent made not the slightest effort to investigate either the June 8 or June 25 events to discover the identity of the leaders and participants therein, and the evidence is clear that an adequate investigation, including the questioning of the employees attacked and evicted on June 8, would have revealed to the respondent the identity of most of those 20n Int. Ass'n.. of Machinists, Tool and Die Makers, Lodge No. 35 v. National Labor Rela- tions Board, 311 U. S 72. 20 As previously stated, Michaels and Miller knew on June 25 or shortly thereafter that Bottoms had attended the Tolson Building riot. GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 367 involved in these events. The respondent, by deliberately refusing to learn of the activities of these employees, cannot assert that their subsequent promotion or transfer did not constitute ratification of their prior activities because of the respondent's lack of knowledge of such activity by them. The transfer of McGinty has already been discussed. Tucker, a short time after June 25, became a supervisor. Bottoms and Crow, not only continued in their favored positions as squadron members, but in September 1936, were promoted to supervisory positions. Louis Jones in August 1936 was given a super- visory position .17 Two months after June 25 McDaniel became a member of the squadron, and in February 1937 he became a labor trainer. In September 1936, Henry Lowry became a member of the squadron. Yet the conduct of these employees, as previously de- scribed, would not ordinarily be deemed by an employer to reveal fitting qualifications for supervisory duties. The complaint alleges that the insufficient protection afforded the United organizers in Gadsden resulted, first, from the belief created among the law-enforcement officers of Gadsden by the respondent that the respondent would increase its operations at its plant if em- ployees there were kept unorganized, and second, from the denuncia- tion by the respondent of the right of its employees to organize. As pointed out above, although it is very probable from Roberts' testimony that the belief did exist in Gadsden that the operations of the respondent's plant would be increased if the employees there were not organized, nevertheless the respondent was not responsible at this time for the existence of this belief. Therefore, although we are of the opinion that this belief may have had much to do with the lack of protection afforded the United organizers in Gadsden, the re- spondent cannot on this ground be held responsible for this lack of protection. The respondent at the hearing introduced evidence in an attempt to show that the United itself, through acts of violence and threats thereof by its members and organizers in Gadsden, was re- sponsible for much of the hostility against it and inadequate pro- tection afforded its members in Gadsden. The evidence does not show either that the United members were guilty of such conduct in Gadsden or that a belief that the United members were guilty of such conduct in Gadsden was responsible for the previously described occurrences in Gadsden. C. H. Glover, an employee who joined the United for a few months in 1933, testified that one Finch, a United organizer, during a United meeting, in the presence of other members, including Holmes, Beck, and Horace Lowry, told employees that the respondent's plant if 11 Jones was a member of the June 8 employees' committee which met with Craigmile. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD necessary could be closed by dynamiting it.. Lowry and Beck, both- testified at the hearing as witnesses for the respondent , and neither- referred to such dynamite statements by Finch. Holmes denied that Finch at any time had made such statements . We are of the opinion, and we find , that Finch did not advocate the use of dynamite. The only other indication of violence in Gadsden by the United prior to 1936 was a rumor of a threatened strike in either 1933 or 1934. No strike was ever called , however. There is no indication that any of the above events, occurring long before 1936, was the cause of the 1936 occurrences . The evidence con- cerning the United threats or violence in 1936 is extremely meager. A. J. Jordan, an employee, testified that approximately 2 months be- fore June 8 Jack Owens, an employee not a United member, twice told him that two employees, Boldin and Moody, belonging to the United, had told Owens to tell Jordan that if Jordan did not join the United they would "take him for a ride." Owens did not testify at the hearing. In view of the nature of this evidence, we find that such threats cannot be attributed to the United or its members. Nor does the evidence establish that Jordan participated in any of the sub- sequent 1936 rioting because of these threats. Crow testified that about 2 weeks after June 8, at about 9: 30 at night, a rock was thrown at the door of his house . Crow apparently never reported the incident to the police and did not discover the identity of those involved nor the reason for this incident . Turner testified that at about the same time his car was forced to the sidewalk in Gadsden by another car, out of which came five men, who walked toward him ; and that, drawing a gun, he succeeded in dispersing the men. He never identified the men or discovered the reason for their conduct. Bottoms testified that about the same time three United organizers, Love, Leslly, and Thomas, gathered about his car on a street in Gadsden when he was in it and took down his license number. None of the men threatened him. Finally, McGathey testified that about the same time a stink-bomb was thrown under the window of his home early one morning. McGathey never discovered the identity of the thrower or the reason for this incident . It is apparent that, except in the case of Bottoms, there is no evidence that any of the above incidents were either committed by United members or occurred because of union disputes . Moreover, all of them occurred after the events of June 6 and June 8. Evidence introduced at the hearing does establish, however, that during May and June 1936 the citizens and authorities of Gadsden were considerably alarmed by reports concerning the United 's activi- ties and violence elsewhere than in Gadsden. In particular , during this time the United and the Ohio Corporation were engaged in labor GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 369 disputes at a plant in Akron, Ohio. The Gadsden papers were carry- ing complete accounts relating to various acts of violence supposedly committed by the United at the Akron plant. Moreover, many of the respondent's employees had originally come from Akron and were in- formed of the events which were happening in Akron either through Akron newspapers or through citizens of that community. The truth or falsity of these reports concerning violent acts by the United mem- bers in Akron does not concern us here. Even if false, it is clear that these rumors had greatly alarmed the entire community of Gadsden. The evidence does not prove that the respondent at this time originated these rumors or assisted the spread of them in Gadsden. We are of the opinion that such rumors, as well as the above-mentioned belief that the respondent's production activities at the Gadsden plant would be increased if labor troubles there were kept down, were the substan- tial reasons for the insufficient protection given the United organ- izers and members in Gadsden. On the evidence introduced at the hearing we cannot find that the respondent's denunciation of the right of its employees to organize at the Gadsden plant, as previously de- scribed, was a substantial cause for the lack of the protection given United adherents in Gadsden. We shall, therefore, dismiss this allegation of the complaint. On the basis of the evidence introduced at the hearing, we are con- vinced that the respondent deliberately chose anti-United employees to serve as special deputies on June 20. Moreover, as hereinbefore pointed out, on the basis of the evidence introduced at the hearing, the respondent must also bear responsibility for such events as those of June 6 and June 25. Ordinarily we would find that by such con- duct the respondent engaged in unfair labor practices within the meaning of Section 8 (1) of the Act. However, in view of the scope of the pleadings, set forth above, relating to these incidents, we do not make such findings in the present proceeding. The complaint also alleges that the respondent, on or about June 8, 1936, discharged and thereafter refused to reinstate until May 1937, 12 employees because of their membership and activity in the United. The 12 discharges referred to in the complaint are the 12 members of the United, 3 of whom were beaten in the plant by other employees, 7 of whom were forced to leave the plant by other employees, and all of whom were discharged or laid off by the respondent on June 8 at the request of the employees' committee. We hold the respondent responsible for the beatings, evictions, and discharges or lay-offs of these employees, for the following reasons. In the first place, as previously described, the respondent's supervisory employees took an active part in many of the evictions. Labor trainer Tucker and Fore- man Goodall in particular actively assisted the employee groups in 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evicting United members. Moreover, members of the squadron, in- cluding Crow, Pete Dunn, and Bottoms, for whose actions we hold the respondent responsible, also participated in the evictions. In the second place, even where the respondent's supervisory employees did not actively participate in the evictions, they often openly mani- fested their approval of this conduct. The remarks previously quoted of Foreman Goodall and Division Superintendent Neiger to several of the evicted employees and other members of the United are proof of this statement. Indeed, Michaels himself openly showed his approval of the evictions in his conversation with Jim Hudson on June 8, previously set forth. In the third place, we are of the opinion that the respondent's officials could have stopped the evictions and the beatings if they had so desired. Supervisors Clayton and McGathey, and Foremen Goodall and T. P. Smith, were present dur- ing many of the evictions and made only feeble, if any, attempts to stop them. Only after the evictions had largely ceased did Craig- mile, Goodall, Cunningham, and Foreman Charles Dooley at last attempt to disperse the evictors. Finally, the respondent by its conduct clearly ratified and showed its approval of the evictions and beatings. McGinty, one of the foremost of the evictors, whose activity was known to Goodall and Cunningham, as previously described, was later used as a labor spy by the respondent and transferred to its police force. The mem- bers of the squadron, such as Bottoms and Crow, who participated in the evictions, were later promoted to supervisory positions. Nor was a single one of the evictors punished, although the respondent, as Michaels testified and as the evidence proves, knew the identity of "a lot of them," such as McGinty, and could have ascertained the identity of others by an adequate investigation, including the ques- tioning of the evicted and assaulted employees, which the respondent did not attempt to do. The respondent attempts to justify its failure to punish the evictors by its assertion that there were too many of them to do so, and that any attempt to punish all of them would have caused a strike at the plant. The respondent's assertion that there were a large number of evictors is questionable, and in view of its failure thoroughly to investigate these incidents in order to decide if few or many employees were involved, we are unimpressed by it. Indeed, the evidence previously set forth indicates that but a small number of the 1600 employees planned, led, and carried out the evictions. Turner was the leader in the eviction of Ledlow and Caudle, assisted by about 10 or 12 other employees, including Girard, Crow, Pete and Carl Dunn, and Horace Lowry. McGinty was the leader in the eviction of DeBerry, aided by about 10 or 12 other em- ployees including Girard, Tucker, and Crow. Carl and Pete Dunn, GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 371 McGinty, and Crow, aided by about 12 other employees, evicted Love. Crow, Bottoms, Tucker, and Carl Dunn, aided by about 10 other em- ployees, evicted Doyal. Girard and Pete Dunn evicted Keener, and Crow, Carl Dunn, Pete Dunn, Jim Hudson, Chaffin, and Pete Floyd evicted Lake. In several instances large groups of other employees gathered about the scene of the evictions when they were going on, but there is no evidence that the members of such groups actively participated in the evictions or approved of them. Indeed, some of the respondent's officials or employees, such as McGathey, testified that they were in these groups but merely as spectators. We are of the opinion that the respondent, if it had wished, could have ad- ministered severe punishment to the small group responsible for the evictions, the identity of most of whom was known to it or could have been ascertained by it if it had made an adequate investigation. We do not believe that such action would have resulted in a strike. Even if it would have, the respondent cannot plead its own economic detriment as a reason for permitting discrimination against those members of the United in its employ.28 The respondent's treatment of the employees' committee is further evidence of its ratification of the evictions. The respondent per- mitted the committee to dictate to it the discharge or lay-off of 12 employees because of their United membership. The respondent asserts that these employees were distasteful to committee members not because of their union activities but because of "their radical activities." However, the testimony of the respondent's witnesses who served on the committee indicates clearly that to most of them radicalism was the equivalent of membership in, or of activity on behalf of, the United in the plant .2' The respondent contends that it acceded to the wishes of the committee and discharged or laid off the 12 employees because it feared a strike if it) did not do so. We have already pointed out that such a reason provides no justification for the discharge or lay-off of these employees.30 The respondent also states that to have permitted these 12 employees to continue to work in the plant contrary to the committee's wishes would have resulted in further violence to them from other employees. However, the respondent made absolutely no effort, through a comprehensive inves- tigation of the evictions, and punishment of the leaders and partici- pants therein, to prevent the recurrence of the evictions in its plant. Instead, the respondent abdicated the control of its plant to the members of this committee. Moreover, as previously set forth, 28 Matter of Star Publishing Company and Seattle Newspaper Guild, Local No. 82, 4 N. L. R B . 498, order enforced , Natwnal Labor Relations Board v. Star Publishing Com- pany, 97 F. ( 2d) 465 (C C. A 9th, 1938). 29 See the testimony of Rudder, McGathey, Turner, Bottoms, and Carl Hudson. 80 See footnote 28, supra. 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Craigmile not only was present during all sessions of the committee, but actively participated in its questioning of the members of the United called to appear before it and showed the respondent's approval and ratification of the committee's purposes and acts, by the statements he then made. In addition, as we have discussed above, the selection of many of the evictors by the respondent for special deputy duty constituted further ratification of their conduct on June 8 by the respondent. The previously described circumstances surrounding the circulation of the declarations in the plant and the issuance by Bottoms of statements to the press, as well as the respond- ent's actions on June 25 and the statements of Miller and Bottoms to Hullett, are other instances showing ratification and approval by the respondent of the June 8 incidents. Any doubt that may exist as to the respondent's approval and ratification of the events of June 8 is completely removed by the evidence relating to the attempts of the United to secure reinstate- ment of the 12 employees. The respondent asserted that the 12 employees were merely laid off, not discharged, and that it always intended to recall them as soon as it felt that they could safely work in the plant. No later than 2 months after June 8, the United grievance committee presented a request for the reinstatement of these 12 employees to the respondent, and thereafter on three other occasions before April or May 1937 the United committee presented similar requests. The respondent's officials remained adamant, how- ever, always informing the United committee that it was not safe to reinstate these employees in the plant. Not until May 11, 1937, did the respondent consent to reinstate these employees, all of whom, except Doyal, who did not desire reinstatement, returned to their former positions in the employ of the respondent on or about May 20, 1937. The respondent contends that until May 11, 1937, the 12 employees could not have been safely reinstated in the plant. As the basis for this contention, the respondent's officials, such as Craigmile and Miller, testified that they and foremen from time to time questioned various employees, including some of those who had been members of the committee of June 8, as to whether or not their feeling toward the evicted employees had changed, and whether or not it would be safe to reinstate them, and each time received negative answers. The respondent's officials at no time either disciplined or threatened with discharge or other disciplinary action any employees, or other- wise attempted to make it safe for the 12 employees to be reinstated. The respondent's officials assert that when they reinstated the employees in May 1937, it was safe to do so because the feeling against them had died down. The evidence shows this reason is GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 373 specious: In the first place, Michaels himself testified that he believed that from January 1937 until March or April of that year "the feeling in the plant was the best anybody could imagine," but that in April and May 1937, due to the formation and rapid growth of the Etowah, as hereinafter described, and the resulting rivalry between Etowah and the United, the feeling was "tense." More- over, several of .the respondent's officials, including Miller, Neiger, and Craigmile, testified that they believed the feeling against the discharged employees had not died down when they were reinstated. Miller testified that the great respect that the employees had for the respondent's officials, such as Michaels, had insured the safety of the reinstated employees. There is no evidence that this respect increased between June 1936 and May 1937. Craigmile testified that he believed that the employees were safely reinstated for three reasons. First, in May 1937 he himself had personally told many of the employees who had taken a leading part in the events of June 8 that if any of them or anyone else threatened or harmed the re- instated employees upon their return to the plant, the respondent would instantly discharge them. When asked at the hearing why he had not taken such action prior to May 1937, Craigmile testified merely that he felt that it would have been useless. Second, Craig- mile and Michaels testified that the upholding of the consti- tutionality of the Act by the Supreme Court of the United States 31 had had a "sobering effect" on the employees. Finally, Craigmile and Michaels testified that on May 13, 1937, as hereinafter set forth, the respondent posted certain notices at the suggestion of the Board, agreeing not to interfere with the rights of its employees guaranteed in the Act, and to disestablish the Plan ; and that they believed that these notices had also sobered the employees. We are of the opinion, and we find, that the reason for the re- instatement of these 12 employees was the effect upon the respondent of the decision of the Supreme Court upholding the constitutionality of the Act. As Craigmile testified, the respondent had been advised by counsel that the Act was unconstitutional. Secure in this belief, prior to the Supreme Court's decision the respondent's officials made no serious attempt to reinstate the discharged employees but con- tented themselves with telling the United grievance committee that it was not safe for these employees to return to the plant. Im- mediately after the Supreme Court had upheld the Act, the respond- ent suddenly reversed its policy and, for the first time taking active steps to insure the safety of the 12 employees upon their return to ffi National Labor Relations Board v. Jones & Laughlin Steel Oorp , 301 U. S. 1 (April 12, 1937). 283032-41-vol 21-25 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work in the plant, reinstated them. No harm had occurred to the reinstated employees up to the time of the hearing. In view of the complete lack of effort by the respondent prior to May 1937 to take any precautions to insure the safety of the 12 employees upon their reinstatement, it does not lie in the mouth of the respondent to say that it could not have safely reinstated them. The respondent's other contention that their reinstatement would have caused a strike at its plant is, as we have previously pointed out, no defense for its conduct.32 Moreover, the respondent by its failure to punish any of the participants in the June 8 occurrences, by its subsequent ratification of their acts, by the promotion of many of the leading evictors, and by its condonation of the further anti- United conduct in the exodus from the plant and the riot on June 25, as well as in the events relating to Hullett's sermon, clearly con- tributed much to the preservation and growth of the anti-United feeling in the plant which it asserts was the reason why it was unable safely to reinstate the 12 employees. We find that the respondent on June 8, 1936, laid off or discharged and thereafter refused until May 1937 to reinstate the following em- ployees because of their union membership and activity : Edward' Ledlow, C. S. Holmes, F. D. Love, F. H. DeBerry, J. D. Doyal, S. W. Caudle, O.• G. Lake, K. F. Keener, Hugh Milam, L. R. Steward,. L. D. Hayes, and F. B. Adams. The respondent, by laying off or discharging these 12 employees, discriminated in regard to their hire or tenure of employment, thereby discouraging membership in a labor organization and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section IT of the Act. 3. The other 1936 lay-offs and discharges During the latter part of June and the early part of July 1936, three employees , two of them members or former members of the United, were laid off or discharged. All three discharges or lay-offs arose out of the activities previously described. Zella Morgan. Morgan, the recording secretary of the United, as, previously set forth , had been summoned before the employees' com- mittee on June 8, and had been allowed to return to work on that day after Craigmile and members of the committee had warned her that if she did not cease associating with the United organizers, she would be summoned again before the committee . On June 13 Morgan was summoned to Craigmile's office. Craigmile asked her to sign the statement, previously referred to, concerning his participation in 12 See footnote 28, supra GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 375 the activities of the June 8 committee. Morgan testified that at this time Craigmile informed her that he had heard from the respond- ent's officials at Akron that she had been making false statements concerning his participation in the committee's activities. Craigmile did not deny making this remark, and we find that he did so. On Monday, June 29, four girls employed in the plant, Clarice Prater, Cathryn Davis, Daisy Warren, and Mrs. Lula Moore, approached Morgan while she was working, told her that she would have to leave the plant, and asked her to accompany them to the respondent's offices and obtain her pay. Morgan replied that she would go pro- vided that the girls would not accompany her. Morgan went to her foreman, O. C. Pack. Morgan testified that she told him what had occurred, asked him what she should do, and was told by him to see Craigmile. Pack testified that Morgan merely informed him thi, t because the girls would not work with her, she was quitting. We credit Morgan's testimony. Shortly after Morgan's arrival in Craig- mile's office, the four girls entered. Morgan testified that she in- formed Craigmile that she had been ordered by the four girls to leave the plant and told him that she "supposed" she should ask for her "time in full"; that one of the girls stated that they had nothing against her except her continual association with the "Union people"; that Craigmile reminded her that the committee had previously warned her against associating with union members; that Craigmile promised to protect her in the plant, but stated that "those girls have made up their minds and it won't do any good for you to go back down there, when the committee calls you before them again"; that Craigmile informed her that although he could call the com- mittee together again to hear her case, he believed that such action would be useless, since the girls had already decided they would not work with her ; that Craigmile told her that "the best thing" for -her to do was to accept from him an honorable discharge 33 and her vacation money, which he would give her if she would leave the plant at once, and then doubtless she would be able to return to work "a little bit later"; and that Craigmile stated that if she did not leave now of her own accord and "we have to call this committee back you will have to abide by what they say." According to the testi- mony of Mrs. Moore, Davis, and Prater, as well as Craigmile, the four girls told Craigmile that they wished to evict Morgan because, "their men folks had taken a hand in running some of the radicals out of the plant and it was their opinion they had not done a. thorough job, they should have chased Zella out too;" Craigmile s3 An honorably discharged employee , if ever reemployed by the respondent , had rights, and,privileges, such as vacations and seniority, based on his total period of employment by- the respondent, and was not treated as a new employee 376 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD thereupon stated that they could not "dictate" to him, for he was still "running" the plant and had charge of "all the hiring and firing"; Morgan then said that because the girls did not want to work with her, she wished to quit; the girls stated that Morgan had been seen associating with the organizers and their wives since June 8, and that they felt that Morgan had broken the promise she had made to the committee on June 8, not to be guilty of such con- duct; Craigmile stated that he was "very proud" to have Morgan working for him, promised her full protection in the plant, and requested her to remain at work, but she refused ; Craigmile then asked Morgan to work for 3 more days,34 but she refused; and finally, Craigmile gave Morgan an honorable discharge with vacation pay. In view of the respondent's general labor policies at this time, as described in the previous section, and in particular in view of Craig- mile's treatment of the committee and the employees summoned be- fore the committee on June 8, we are of the opinion that Morgan's testimony concerning her interview with Craigmile is to be credited, and we find the facts to be as set forth above in it. Morgan had never had any previous difficulty with any of the four employees who requested her departure. According to the testimony of Davis, Mrs. Moore, who is the wife of a supervisor in the respond- ent's plant and did not work in Morgan's department, was the leader of this eviction group and the first one to suggest taking such action. Craigmile, although he testified that he rebuked the evictors, neither threatened them with discharge nor at any time actually discharged or otherwise disciplined them for their conduct. Craigmile must have realized that Morgan was willing to quit her job only because she feared suffering a fate similar to that of the seven employees evicted on June 8. Craigmile offered Morgan the alternative either of yield- ing to the request of the evictors and voluntarily leaving her job at once with vacation pay and the possibility of reinstatement without loss of her seniority rights, or of remaining at work in the plant until recalled before the committee and then probably being dis- charged without vacation pay. In view of the events, described in the previous sections, which had occurred in the plant and in Gadsden in June 1936, Craigmile's advice to Morgan, in the presence of the four evictors, to accept the first alternative, practically compelled her to take such action and so was, a discharge or lay-off. In any event, for the respondent to require that Morgan, as a condition of further employment, appear before the employees' committee, answer its questions about her United activities, and abide by its decision as to whether she could continue to work in the plant, was 34 Usually employees obtained an honorable discharge only if they gave the respondent 3 days' notice before leaving its employ. GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 377 a violation of the Act,35 discriminating in regard to her hire and tenure of employment, and Morgan lost none of her rights guaran- teed by the Act by refusing employment under such circumstances.38 - We find that the respondent's conduct toward Morgan, set forth above, was caused by her union membership and activity. The re- spondent, by such conduct, discriminated in regard to her hire and tenure of employment, thereby discouraging membership in a labor organization and interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. The United grievance committee asked the respondent to reinstate Morgan at the same time that it asked for the reinstatement of the 12 employees laid off or discharged on June 8. Craigmile admitted at the hearing that he believed that Morgan could have been rein- stated safely in the plant some time before she actually was rein- stated on May 20, 1937, but stated that he did not think it proper to reinstate her unless the other 12 employees were reinstated at the same time. The respondent's failure to reinstate Morgan until May 20, 1937, confirms our opinion that the respondent either laid off or discharged her, or forced her to quit its employment, in June 1936, because of her union membership and activity. Ruth Christopher. Christopher entered the respondent's employ on October 4, 1929. In August 1934, she joined the United: Prior to June 1936, she had lost her membership through failure to pay dues. As previously set forth, Christopher, despite a warning from Supervisor Phillips, had refused to sign the declaration circulated in the respondent's plant shortly before June 25, and had subse- quently been interviewed by Superintendent Neiger as to whether or not she was satisfied with working conditions in the plant. On June 25, 1936, after the employees returned to the plant following the Tolson Building riot, several of the women working near Christopher discussed the riot. Christopher's brother was one of the organizers who had been assaulted at the Tolson Building. Christopher testi- fied that one of the girls cursed the union organizers, and that she then stated that she believed that it was not right for "a mob of men" to go and assault "a few men like that,"' and that she thought that the 35 See section III, B , 2, supra 8° Cf. Matter of Clover Fork Coal Company and District 19, United Mine Workers of America, 4 N. L. It. B. 202, order enforced , Clover Fork Coal Company v. National Labor Relations Board, 97 F. (2d) 331 (C. C. A. 6th, 1938) ; Matter of Waggoner Refining Com- pany, Inc. and W. T. Waggoner Estate and International Association of Oil Field, Gas Well and Refinery Workers of America,, 6 N. L. It. B. 731 ; Matter of Sterling Corset Co., Inc. and Universal Brassiere & Justrite Corset Co . and International Ladies' Garment Workers Union, Local 85, 9 N. L. R B. 858; Matter of Chicago Apparatus Company and Federation of Architects, Engineers, Chemists and Technicians, Local 107, 12 N. L. It. B. 1002; Matter of The Press Co., Inc and The Gannett Company and Tri-City Newspaper Guild of Albany, Troy, and Schenectady, New York, 13 N. L. It. B. 630. 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rioters ought to be cursed as well as the organizers. Christopher denied cursing the organizers. Mrs. Emmett Carnes and Leona Woods, two women in the group addressed by Christopher, testified that Christopher cursed the organizers. We credit Christopher's testimony. Several of the girls in the group around Christopher, including Mrs. Carnes, Leona Woods, and Eva Woods, showed great resentment over Christopher's remarks. Mrs. Carnes, together with Eva and Leona Woods, then approached C. E. Jellicourse, the chief dispatcher, and asked him to take Christopher to see Miller. Jelli- course agreed to do so, in order, he testified to protect Christopher. Jellicourse and the women, together with Christopher, saw Miller. The women told Miller that they considered Christopher an "unde- sirable," that the "boys" had "rid" themselves of the "undesirables," and that they would not work any longer with Christopher. Chris- topher testified that she was extremely nervous and frightened at this time. At Miller's suggestion, Christopher agreed to go home until the following Monday. When she reported for work on Mon- 'day, June 29, she saw Craigmile, Miller, and Neiger. Christopher testified that Neiger informed her that she could no longer work in his department because two-thirds of the girls there would not work with her; that he told her that she would have to take a job as a new em- ployee in another department, which would pay her considerably less money; and that Neiger and Craigmile both said that they were not even certain if they would let her continue to work in the plant. Christopher protested this transfer. Finally it was agreed that Chris- topher should take a vacation for a week. Christopher did so. At the end of the week, when Christopher reported for work, she saw Craigmile. Christopher testified that at this time Craigmile informed her that he had no job at all for her and that she was discharged. Craigmile and Neiger both testified that they suggested Christopher's transfer because she was unpopular in her department and had had difficulty in getting along with her fellow employees, and Craigmile testified that when Christopher returned from her week's vacation, he had not discharged her but again offered her the transfer, which she again refused. We credit Christopher's testimony and find the facts to be as set forth above in it. The respondent introduced considerable evidence to prove that Christopher was in the habit of cursing her fellow employees and also various officials of the respondent. We are of the opinion that Christopher's cursing was not the reason for the respondent's dis- charging her. The evidence indicates that Christopher's cursing was not at all unusual among employees in the respondent's plant. Thus Clarice Prater, an employee, testified that Roy Girard, an employee, whom Christopher often cursed, was also guilty of cursing GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 379 Christopher. Christopher's foreman, Hershiser, testified that he had never heard Christopher use any profanity, but that he had reprimanded her for so doing because of the complaints of other employees. However, he admitted that other employees used the same language as Christopher did, although stating, without any ,explanation, that Christopher's language was more abusive 37 Her- shiser also admitted that he rebuked the entire crew of employees with whom Christopher worked for profanity, and not Christopher alone. Moreover, it is clear that on June 25 the trouble between Christopher and her fellow employees arose not because of Christo- pher's cursing but because of her adverse comments on the rioters at the Tolson Building. Neiger testified that he suggested Chris- topher's transfer from his department "in view of the fact that these people did not want to work with her." But as the women employees who took Christopher to Miller informed him, they allegedly were .unwilling to work with Christopher, not because of any cursing by her, but because of her sympathy with the United, which made her an "undesirable." And, despite the fact that Mrs. Carnes and Leona and Eva Woods, as well as the other employees who resented Chris- topher's remarks, were fully as much to blame for the ensuing dis- pute as Christopher, the respondent made no effort to punish or • transfer any of them except Christopher. Instead, the respondent carried out the wishes of the evictors and discharged Christopher. We find that she, like the 12 employees laid off or discharged on June 8, was discharged by the respondent in compliance with the demands of the anti-United employees in the plant. The respondent argues that by offering Christopher a transfer to another department it was attempting to protect her in its plant. However, the transfer, admittedly to a lower-paying job, was caused by the same reasons as her discharge and therefore was discrimina- tory, and we have held in previous decisions that an employee con- fronted with a discriminatory transfer need not accept the transfer but may leave his employment without sacrificing his rights under 'Section 8 (3) of the Act.38 Moreover, as previously stated, we are of the opinion that Christopher's testimony that Craigmile in the final interview discharged her and did not offer her a transfer is to be credited. sr Hershiser testified : "... other people used similar words. You can be abusive with it and you cannot." 53 Matter of Waggoner Refining Company , Inc. and W. T. Waggoner Estate and Interna- tional Association of Oil Field, Gas Well and Refinery Workers of America, 6 N. L. R. B. 731; Matter of The Press Co, Inc. and The Gannett Co. and Trs-City Newspaper Gua.ld of Albany, Troy and Schenectady, New York, 13 N. L. R. B. 630; Matter of R. C. Hoiles, C. H. Hoiles, Harry Moiles, and Mary Jane Hoiles, doing business under the trade name and style of Clovis News-Journal ( formerly Evening News-Journal ) and Pryer U. Smith, 13 N. L. R.B 1122. 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the respondent discharged Ruth Christopher be- cause of her union activity. The respondent, by discharging Chris- topher, discriminated in regard to her hire and tenure of employ- ment, thereby discouraging' membership in a labor organization and interfering with, restraining, and coercing its employees in the exer- cise of the rights guaranteed in Section 7 of the Act. The respondent reinstated Christopher at the same time that it reinstated the 12 employees laid off or discharged on June 8. Emmett D. Taylor. Taylor was hired by the respondent as a band builder in the tire room, in 1929. After 9 months, because of illness in his family, he left the respondent's employ. Early in 1936, Taylor returned to his former position in the respondent's employ. Before he returned, Taylor had been asked by his former shift foreman, Cunningham, and also by his former supervisor, Canup, to return to work. Cunningham testified that he had sought Taylor's return because he needed more band builders and wanted experienced men. Cunningham also testified that Taylor was a "pretty fair worker." In April 1936, Taylor applied for membership in the United, but prior to his lay-off on June 24, 1936, due to financial difficulties, he had never actually joined the United. As previously set forth, Taylor shortly after June 8 was asked by Miller if he "was satisfied with conditions in the plant," and later twice refused Jones' request to sign a declaration that he was satis- fied with the working conditions in the respondent's plant. Taylor told Miller that he "was making no complaint at the present time at conditions in the plant." Taylor told Jones that he would not sign the declaration because "I resented the treatment that union employees were receiving by the company, and . . . I believed in organized labor." The following night, June 24, Shift Foreman Rollins sent Taylor to see Goodall, who informed Taylor that he was -being laid off because he was "a junior man" and the respondent "had hired in too many band builders," and "had a surplus of labor." The respondent has advanced numerous reasons for Taylor's dis- charge or lay-off. The answer of the respondent alleges that Taylor was laid off because of defective work and incompetence. John Cunningham, shift foreman, the only official of the respondent who testified concerning Taylor's work, stated that Taylor's work was all right in quality but was deficient in quantity. Cunningham could not recall, however, ever having complained about Taylor's work, and there is no evidence to contradict Taylor's testimony that he had never been reprimanded for any deficiency in production. Moreover, the fact that Cunningham and Canup both sought to have Taylor return to his job with the respondent indicates that Taylor's work was satis- GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 381 factory. Cunningham testified also that Taylor was laid off because he was one of the youngest men on that job. Taylor, however, testi- fied that there were four or five band builders not then laid off who were junior to him, and the respondent offered no evidence, such as employment records, which it must have had in its possession, to contradict this testimony of Taylor. Cunningham also testified that the respondent's production had declined because of a decrease in business. The respondent offered no other testimony whatsoever to prove such a decrease in business. On the contrary, Michaels testi- fied that on June 8 he was so busy with the problem of expanding production at the 'respondent's plant that he was unable to meet with the employees' committee. Finally, Cunningham testified that Taylor was often absent from work. Taylor testified, however, that his absences were due to illness. The respondent's medical records indicate that Taylor had been ill for a week in March, 2 days in April, and 4 days in June. On every occasion Taylor was absent, so far as the record shows, he either obtained a medical excuse from the respondent's own doctor or presented a satisfactory medical excuse to the respondent's doctor from his own physician. Cunning- ham testified that he was unaware that Taylor's absences were due to illness, but admitted that Taylor might have presented the excuses for his absences to Shift Foreman Rollins. We are impressed by the fact that the only witness of the respond- ent to testify concerning Taylor's discharge was Cunningham, a shift foreman, who admitted that Taylor was under his supervision only part of the time. Department Foreman Goodall, who ordered Taylor's discharge, did not testify concerning this event at the hear- ing. Under these circumstances, we find that Taylor was not dis- charged for any of the reasons advanced by the respondent, but because of his refusals to sign the declaration and his remarks to Jones showing his sympathy for the United. As alleged in the amended complaint, we find that the respondent on June 24, 1936, discouraged membership in the United by laying off or discharging and thereafter refusing to reinstate Taylor because he had twice refused to sign the previously described declaration circulated in the plant and had manifested a friendly attitude toward the United. The respondent, by laying off or discharging Taylor, discriminated in regard to the hire and tenure of his employment, thereby discouraging membership in a labor organization and inter- fering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Taylor desires to return to his former position in the employ of the respondent. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The formation and admvnistration of the Etowah 1. The history of the Etowah As previously set forth, the respondent had been advised by its counsel that the Act was unconstitutional. Despite the passage of the Act, therefore, the respondent made no attempt to dissolve the company-dominated Plan previously described, prior to the decision of the Supreme Court of the United States upholding the constitu- tionality of the Act.39 On April 19, 1937, however, within a week after this decision, the eight employee representatives of the Plan were summoned to a meeting of the factory council in the plant early in the morning. Michaels informed the employee representa- tives that the respondent had decided to dissolve the Plan. Michaels stated that he "was sorry" to see the Plan dissolved, and that he felt that it had accomplished a lot in the plant and hoped that "the same amicable relations" between the respondent and the employees could be continued in the future. Hoyt Yarbrough, one of the employee representatives, asked whether the employees could "organize a union of their own." Craigmile replied that the employees could join anything they wished. No further announcement of the dissolution of the Plan was made until May 3, 1937, when the respondent posted a notice, signed by Michaels, informing all employees in the plant of the dissolution of the Plan. Immediately after the conclusion of the meeting on April 19, sev- eral of the employee representatives, including Carl Hudson and Beck, began to discuss the formation of a new labor organization for the employees at the respondent's plant. Carl Hudson testified that the employees were in a hurry to get this organization started be- cause "we wanted to have something to take place of the Joint Conference," and that during that day while at work at the plant he spoke to various employees, including Jim Hudson and McCay, concerning the formation of a new union. Dwight L. Teague, an electrician in the respondent's employ, reminded Jim Hudson, when the latter spoke to him about organizing a union, of what had hap- pened previously to employees who joined unions. Hudson replied that this union he was organizing "was different" and that he had spoken to several officials, including the master mechanic, Mallory, and had been informed by Mallory that this union "would be all right." When Teague still expressed doubt, Hudson informed him that he would again speak to Mallory. Later that day Hudson told Teague that he had spoken to Mallory again and that the latter had 89 See footnote 31, supra. GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 383 informed him that it was "all right" to proceed with the organiza- tion of his union. Hudson also told Teague that the original or- ganization meeting was to have been held at the ball park but that Mallory had objected that to hold the meeting there would not "look so good" and had suggested that instead it should be held on the employees' golf course. That afternoon shortly after the first shift of the plant ended at 3 o'clock, about 150 employees met on the golf course. Among those present were Beck, Carl Hudson, and Rex Norton, all employee repre- sentatives of the Plan. Beck told the group that under the Act it would be illegal for them to begin their organization on the golf course, which was the respondent's property. Accordingly, the group decided to appoint a committee consisting of Rudder, Jim and Carl Hudson, Beck, McCay, Jud Dailey, J. P. Tollison, H. 0. Carpenter, E. L. Riley, and J. H. Johnson, all employees, to meet that night at the home of Rudder and perfect plans for the organization of a union. The group also authorized the committee to employ an attorney to assist them. Immediately after the meeting on the golf course ended, Rudder, who had not attended this meeting, was informed by Beck and Jim Hudson of what had occurred at the meeting. Rudder arranged for W. M. Rayburn, an attorney, to advise the group. Rud- der also saw a printer and asked him to be ready to print membership cards late that evening. At the meeting held that evening at Rudder's home, Carl Hudson was elected temporary president and other temporary officers were chosen. A membership committee consisting of Jim Hudson, Beck, Carpenter, and Tollison was chosen. Membership cards were drawn up, monthly dues of 25 cents were established, and the organization was named the Etowah. About 1 o'clock that morning the meeting broke up. Rudder at once had membership cards printed. About 3 o'clock that morning Beck, McCay, Jim Hudson, Tollison, Carpenter, and Riley went to the plant and began to solicit members. None of these employees soliciting members then were supposed to be in the plant at work at this time. Despite the fact that they made no at- tempt to conceal their presence in the plant or what they were doing, no official of the respondent interfered with their activity for several hours. As a result they succeeded in signing up almost all the em- ployees at work on that shift. Thus, B. H. Vickery, an employee in the mill room, saw Tollison go through his department with member- ship cards in his hand, speak to every employee there, and sign up many of them, including Vickery. McCay testified that he alone signed up 100 employees before the shift ended at 7 a. m. Finally at about 7:30 that morning Michaels informed Rudder and Jim Hudson that the soliciting in the plant must cease. The evidence 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD indicates, however, that but little heed was given to Michael's order that morning and that the respondent's officials made little attempt to enforce it. Thus Rex Norton while he was working in the plant during the morning saw Beck, Carpenter, and McCay go through the tire-building department from machine to machine with membership cards and pencils in their hands and openly solicit members without being stopped by any official of the respondent. That same day Rudder arranged for a meeting between Michaels and Craigmile, and Jim and Carl Hudson, Riley, and Tollison. Carl Hudson testified that the purpose of this meeting was to find out whether these officials of the respondent "approved" of the Etowah, but that the two officials refused to commit themselves. The em- ployees informed Michaels and Craigmile of the organization of the Etowah and read the minutes of the previous meeting to them. Mi- chaels and Craigmile informed them that there was to be no soliciting Iof members- in the plant. - c Several more meetings were held by the committee at Rudder's home. On April 24 a mass meeting was held at the municipal audi- torium at which a constitution and bylaws were adopted, and on May '1, at another mass meeting, permanent officers were elected. On May 4 Rayburn, U. M. Gilbert, president of the Etowah,. Yarbrough, vice president, and C. B. Johnson, secretary-treasurer, conferred with Michaels and obtained oral recognition from him of the Etowah as a labor organization. Michaels refused to recognize the Etowah as sole bargaining agent for all employees, despite the claims of its officers that 1200 of the 1500 eligible employees in the plant belonged to it. Pursuant to the request made by the Etowah representatives during this conference on May 5, 1937, the respondent posted the following notice on all the bulletin boards in its plant: General Notice All employees of the Goodyear Tire & Rubber Company of Alabama are hereby notified that recognition has been given by said Company to the Etowah Rubber Workers Organization and to the following named men as officers of the Organization U. M. GILBERT, President, H. W. YARBROUGH, Vice President, C. B . JOHNSON, Secretary-Treasurer, Goodyear Tire et Rubber Company of Alabama. (Sgn) A. C. MICHAELS, General Superintendent. On May 13 the United representatives requested that the respond- ent post a similar notice for the United. The respondent's officials GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 385 denied this request, stating that they had done so in September 1935, and that further recognition of the United was unnecessary and would be unfair to the Etowah. On May 25, 1937, however, the respondent, pursuant to the requests of the United and the Etowah, posted notices giving the names of employees on United and Etowah committees. On May 14, 1937, pursuant to a petition filed on April 24, the Etowah obtained a corporate charter from the State of Alabama: 2. The relationship between the Etowah and the respondent We are of the opinion and we find that the respondent dominated and interfered with the formation and administration of the Etowah and contributed support to it in the following ways : First, as previously described, during June 1936, less than a year before the formation of the Etowah,.the respondent had engaged in various unfair labor practices at its plant and clearly revealed to its employees its inveterate hostility toward the United or any other "outside" labor organization. That such events as the June 8 beat- ings and ejections and their significance had not been forgotten in May 1937 by the employees who had witnessed or participated in them is shown by 'the conversation, previously set forth, between Teague and Jim Hudson at this time, and the fact that the organizers of the Etowah immediately sought to obtain the approval of the respondent's officials, Michaels and Craigmile, for their organization. Consequently, the formation and rapid growth of an inside labor organization, the Etowah, to take the place of the company-domi- nated Plan, immediately after that organization had been dissolved, was but a logical development and consequence of the previous unfair labor practices of the respondent, which showed the employees not only the respondent's hostility toward the United and its prefer- ence for an inside labor organization, but also the risks incurred in joining the United. By inevitably making the intimidated employees very reluctant to join, or remain members of, the United, the re- spondent's previous unfair labor practices seriously crippled the United's activity at the Gadsden plant. Moreover, the employees who had been laid off or discharged in June 1936, were, in the main, the most prominent and active members of the United. Since they were not reinstated until May 20, 1937, or thereafter, they were, unable before then to carry on the United's activities as vigorously as if they had been working in the respondent's plant. On May 13, 1937, the respondent posted a notice on its bulletin- board stating that, in accordance with suggestions made to it by- the Board, it would disestablish the Plan, not interfere with, restrain,. 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or coerce its employees in their rights to self-organization , not domi- nate, support , or interfere with the formation or administration of any labor organization of its employees , nor discourage membership in any such labor organization by discrimination in regard to hire and tenure of employment. However, this notice was not posted until after the Etowah had been fully organized and recognized by the respondent and, according to the Etowah's claims , after it had obtained 1200 members at the respondent 's plant. Similarly, the respondent, apart from the April 19 announcement, did not post notices officially dissolving the Plan until 2 weeks after the Etowah had been organized . Therefore, these steps taken by the respond- ent to eradicate the effect of its 1936 unfair labor practices, since they were not taken until after the Etowah had been formed and, in the case of the May 13 notice, recognized, were ineffective to diminish the effect of these unfair labor practices upon the forma- tion and growth of the Etowah. In the second place, the evidence is clear that the respondent's officials permitted widespread solicitation for Etowah members, col- lection of Etowah dues , and distribution of Etowah ribbons, by em- ployees in the plant during working hours. The respondent points out that employees also solicited members for the United in the plant during working hours . However, there is no evidence that United representatives were collecting dues or distributing United buttons in the plant during working hours. Nor did United mem- bers solicit members in the plant as openly and on as large a scale as the Etowah representatives did. In fact , in many instances, the respondent's supervisory officials either tolerated or directly aided such activities of the Etowah in the plant . Thus, as previously described, on the morning of April 20 representatives of the Etowah who were not then supposed to be in the plant, solicited members for 3 or 4 hours openly before they were finally warned by the re- spondent's officials. No reason was given by the respondent's of- ficials why such solicitation was permitted. We are convinced by the evidence that the respondent 's officials must have known of the solicitation and deliberately tolerated it. Michaels finally issued an order to stop this activity, but as previously pointed out, his order, as shown by what Norton observed that morning, had little immediate effect. Rosebud Howard, an employee, when asked to join the Etowah while working in the plant by Girard, questioned her supervisor, Yancey, as to whether it was all right to join. Yancey replied, "Can't that man make you see anything . . ." A. J. Forman, an employee, while at work was asked to join the Etowah by McDaniel, GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 387 who, as previously set forth , was then a labor trainer , a supervisory position. In fact, McDaniel admitted that he solicited for the Etowah for 2 or 3 days in the plant. R. H. Scott, an employee, testified that his foreman, F. S. Bell, told him that only by joining the Etowah could the employees prevent part of the production of the Gadsden plant being transferred to a plant at Akron, Ohio. According to Scott, in May 1937, when Bell noticed that he was wearing a United button , Bell remarked that he, Bell , was surprised that Scott had joined the United because it did not have a charter as the Etowah did, that "if we go ahead in this country organizing under this C. I. O.. . . we will be working just like in China or Japan for whatever they give us," and that he, Bell, personally preferred that Scott join the Etowah and "be steady here" and prevent production leaving the Gadsden plant and going to Akron. Scott also testified that when he left the plant to appear at the hearing, Bell remarked to him, "don't forget what you said about the C. I. 0." Scott testified that Bell referred to the fact that he had once told Bell that if the Etowah was a union, he did not want any union, even the United. Bell denied most of the above testimony of Scott. Bell testified that because Scott had cursed the United a few weeks previously, he had remarked, upon seeing Scott wearing the United button, that he was surprised. According to Bell, he told Scott the latter "could join anything he wanted to." Bell also testi- fied that he had made the remark above referred to when Scott had left the plant to appear at the hearing in order to remind Scott of the latter's statements to him in April cursing the United. We find the facts to be as set forth above in Scott's testimony concerning the above incidents. Millard Edgeworth , an employee , testified that Supervisor Louis Jones asked him where his Etowah ribbon was; that he replied that he belonged to the United ; and that Jones later told him that the United was a "damn bunch of Bolsheviks " and that he had thought Edgeworth "a good boy" until the latter had "the crust to join" the United. Jones denied the above testimony of Edgeworth , but we find that his denial is not to be credited . Joe S. Hyde, an employee, asked his foreman, Linn, about the Etowah . Linn replied that he "thought it would be all right to get in it." Flavel Roberts, a tire builder, several times asked A. L. Country- man, Jr., an employee , while he was working to join the Etowah. When Countryman complained about this activity of Roberts to his supervisor, Frank Lister, Lister merely laughed. Johnson, the Secre- tary-treasurer of the Etowah, was a clerk in the office of Mallory, the master mechanic. Johnson testified , and we find , that during the first 2 weeks of the organizing campaign of the Etowah , Mallory was away 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the plant; that during that time the mechanics came constantly to his, Johnson's desk at the plant; and that he then signed them up for the Etowah, if they requested him to do so. Jordan, an Etowah member, solicited members in the plant for about 4 hours, obtained 30 to 40 of them, and collected dues for an hour. He was rebuked by Foreman Goodall, but still continued his soliciting. Harris Hurst, a squadron member, at the request of James Karam, another squadron member, for 45 minutes distributed 200 Etowah ribbons in the plant during working hours until he was finally sent back to work without any rebuke or punishment by Foreman A. E. Rearick. Henry Lowry, a squadron member, belonging to the Etowah, testified that he had collected and still did collect dues during working hours in the plant from Etowah members. One Hallmark, an employee, usually collected Etowah dues in the plant. One day when Hallmark was absent, Gerald Crowder, an employee, collected dues in the plant and continued to do so even after Supervisor Moore had warned him to stop. Crowder testified that he was unaware that the respondent had any rule for- bidding such activity in the plant. Mrs. Carnes also solicited mem- bers and collected the dues of 20 employees in the plant and was unaware that this activity was against the respondent's rules until finally stopped by her foreman, Hershiser. At the same time, the respondent's supervisors were revealing to employees that their hostility toward the United had not abated. In view of the intense rivalry between the Etowah and the United such action by the respondent's supervisory employees not only constituted interference with the rights of the employees to self-organization, but also gave support to the Etowah.' Thus, when Theo. Henslee and another employee first wore their United buttons in the plant in May 1937, their foreman, Bell, told them that he, Bell, was "very badly dis- appointed" that they had joined the United and wanted to try to change their minds. L. T. Brooks, an employee, about the same time was told by his supervisor, Terrill Jackson, that he, Jackson, was surprised that Brooks had joined the United which was like "the Ku Klux Klan," and that Jackson "would bet . . . $5.00 there would be nothing to it in 2 years." Cartee testified that in May 1937, when he was wearing a United button in the plant, N. A. Nigosian, head of the engineering department, told him that he, Nigosian, could not talk about "the union" in the plant but that if Cartee would come out to his home, he would explain "a lot of things" to him and "open" his eyes and "show" him something, and that due to the "union" he did not know whether the respondent would ever get its new machines in operation. According to Cartee, Nigosian told him that he, Ni- gosian, did not see why all the employees could not be "one big happy family" and get into "this little union"; and when he asked if Nigosian GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 389 meant the Etowah, Nigosian said, "you know what I mean .. . this thing doesn't cost you anything . . . you get just as much by belonging to it as you will by belonging to the one you belong to." Nigosian denied most of Cartee's testimony. Nigosian testified that he could not recall whether he had ever invited Cartee to his home and that, concerning the new machines, he told Cartee that if the respondent got the parts for them in time, they would be installed, but that there was so much agitation in Akron that the respondent could not depend on getting anything from there. We find the facts to be as set forth above in Cartee's testimony, which we credit. Arthur Crider, a tire builder on the United shop committee, testi- fied that in April 1937 he informed his foreman, Charles Dooley, that he had been elected a member of the United shop committee and suggested that he and Dooley "cooperate"; that Dooley replied, "Any time you need anything you see your supervisor" ; and that Dooley also said that "we was not running this place, but he was the foreman," and that Crider should go back to his machine and go to work. According to Crider, 15 minutes later Dooley came to him with Superintendent B. L. Morgan, and after he had told Morgan whom he represented, Morgan told him that the respondent had "done away with all representation and did not have it now nor wculd ever have it." Morgan. did not deny the above testimony. Dooley testified that he knew that Crider belonged to the United; that Crider informed him that he, Crider, represented the men on that shift; and that he then informed Crider that the respondent did not have "the representative plan any more," that Crider did not represent anyone so far as he, Dooley, was concerned, and that if any individual em- ployee had a complaint, that employee should see him, Dooley. Dooley, however, denied knowing at the time he made these remarks that Crider was a United committeeman. We find that Crider's testimony is to be credited and that Dooley knew at this time that Crider was a United representative. Woodrow Kilpatrick, an employee belonging to the United, testi- fied that on June 20, 1937, he was rebuked by Superintendent Neiger for allegedly soliciting in the plant; and that Neiger stated that unless the employees left the "damn C. I. 0. alone Akron was going to take all of our production, that they were going to close down the plant and the bats would be in, the plant in less than a month .. . that the C. I. 0. was based on red Russia and that kind of Com- munism," and that if Kilpatrick "did not cooperate with the Com- pany" he "would not have a job long." Louie Allen, an employee on the United shop committee, testified that he was present during, this interview between Kilpatrick and Neiger; that Neiger asked him, Allen, why he had joined "this radical group"; that Neiger 283032-41-vol 21-26 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stated that he, Neiger, "believed in organization . . . but not that kind," that "John L. Lewis was going to be a dictator," that the Akron local of the United was demanding that production at the Gadsden plant be cut down 50 per cent, and that the "attitude" of the employees at Gadsden would decide whether or not Gadsden would have capacity production. Neiger denied the testimony of Allen and Kilpatrick. Neiger testified that he told Allen and Kilpatrick that the "boys in Akron were not interested in their welfare" and only desired to get back the production the Akron plant had lost to Gads- den. Foreman Pack, who also was present during this interview, did not testify concerning it at the hearing. We find the facts to be as set forth above in the testimony of Allen and Kilpatrick, which we credit. Louis E. Shew, an employee belonging the the United, testified that his foreman, Linn, told him in the plant one morning, that he, Shew, was not being "fair" to the respondent; that he asked Linn what the latter meant; that Linn replied, "You know what you are in," and stated that Shew had been neglecting his work since he had "got into it," and was "not doing the job like" he was "supposed to." According to Shew, he told Linn that his production was good and that he could do as he pleased outside the plant; and Linn answered: "You are, badly fooled; you cannot do that . . . It is the same thing about married life; you don't divorce your wife every morning wheii you leave the house do you ... that is where you are not being loyal to the company . . . you are obligated to the company 24 hours a day and you can't get out of here and do what you want to." Shew testi- fied that later on three occasions Linn warned him that he would "get into serious trouble" ; and that when he asked what the latter meant, Linn replied, "You know what I mean." Linn denied Shew's testimony. Linn testified that on one occasion when he rebuked Shew for poor work, Shew had accused him, Linn, of abusing the latter because of his United membership; and that he had replied; "You are too good a man to be mixed up in this other stuff and neglecting your job . . . I don't care about your union membership." On July 6, 1937, Hyde, a United member, was rebuked by Foreman Linn for defective work. Hyde testified that Linn then told him : "'You have been out with the wrong bunch of folks' and it was going to get my job . . . a few men in the plant . . . think they could run the plant .. . as long as you and those men work for me you will have to do what I tell you to do." According to Hyde, when lie told Linn that "someone" had been trying to make it "hard" for him ever since he had joined the United, Linn replied that "they" had the right to do so, because "if there were a bunch of men • coming into my home, trying to destroy my property . . . wouldn't you try to protect it"; and GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 391 when he asked Linn if the latter thought any less of him for joining the United, Linn answered, "Hell yes, I do." Linn denied Hyde's testimony, stating that Hyde had accused him of rebuking him, Hyde, because of his United membership , and that he had refused to discuss the union with Hyde. George Burns, an employee belonging to the United, in May 1937 was rebuked by Foreman Linn for allegedly leav- ing his work early. Burns testified that Linn told him that he was young, was "on the wrong side of the fence," and had no future-"I ought to be on the right side, , and maybe I would get more favors"; and that Linn stated that because Burns belonged to the United and wore a button Burns thought that he could not be "fired," but that he, Linn, "would show" him, for if he did not "keep" his job "up," he would be "fired." According to Burns , Linn also said that he, Linn, had men at the "Union hall that come back and told him every- 'thing." Linn denied Burns' testimony and testified that Burns had accused him of rebuking him, Burns, because of his United member- ship and that he had denied this accusation. We find the facts to be as set forth above in the testimony of Shew, Hyde, and Burns. W. E. Robertson , an employee who joined the United on April 27, 1937, on April 26, 1937, became senior tester on. the first shift. There are three of these testers, one for each shift, and they change shifts each month . On May 21 , 1937, Robertson was transferred from the job of senior testing to that of a "crude rubber man," a job which he 'testified was harder than senior testing. Robertson testified that at the time of his transfer, Foreman Edwards told him that he had Edwards "on the spot," that he, Edwards , had to take Robertson off the job of senior testing because Robertson was "on the wrong side," and that when Robertson got "to the other side," Robertson would be restored to the position of senior tester. Edwards denied the above testimony of Robertson and testified that, although Robertson had been a senior tester, at his own request Robertson had been taken off this work in order to avoid working on other shifts than the first. Edwards admitted that he knew that Robertson belonged to the United at the time of Robertson 's transfer and that a senior tester received higher pay than a "crude rubber man." Harris Hurst, a member of the squadron, testified that shortly after Robertson's transfer, Robert- son told him that either Edwards or Mangels, the chief chemist, had said that Robertson "had him on the spot" because no supervisor could take "sides" and join a union , and that consequently Robertson had to be taken off supervision . We are of the opinion that Robertson's testimony concerning this incident is to be credited. We find that Robertson was transferred by the respondent because of his United membership and activity, and that he was informed by his foreman that by joining the Etowah he could regain his former position. 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finally, the numerous discharges and lay-offs of employees during this -period because of their United membership and activity, as hereinafter set forth, constituted further support of the Etowah by the respondent and further indication of the respondent's hostility toward the United. We find that the respondent dominated and interfered with the formation and administration of the Etowah and contributed sup- port to it, and thereby interfered with, coerced, and restrained its employees in their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining and other mutual aid and protection as guaranteed in Section 7 of the Act. D. Interference, coercion, and restraint The complaint, as amended, alleges that on or about May 19, 1937, the respondent by its agents, Pete Floyd, Buster Rainey, J. P. Tolli- son, and one Templeton, caused a severe beating to be administered to J. 0. Glenn, a member of the United. The evidence introduced at the hearing established that on May 19, 1937, Glenn, a member of the United, wore, while at work in the plant, a small rag on which he had written in red lipstick the initials of the United, in imitation of the ribbons worn by Etowah members for the first time that day to indicate their membership in that organization ; that several of the respondent's employees, and in particular, Floyd, considered Glenn's action an insult to the Etowah; that Floyd attempted to attack Glenn in the plant but was prevented from doing so by the prompt interfer- ence of Foreman Goodall and Foreman Hershiser; that subsequently, at the request of Goodall, Glenn removed the offending rag; that Floyd, together with Rainey, Tollison, and Templeton, all employees of the respondent, followed Glenn after work from the plant to his home that day; and that Floyd, and perhaps Rainey, assaulted Glenn in front of the latter's home and gave him a severe beating. The evidence shows that the beating of Glenn was caused by his wearing the "mock ribbon" and also by some profanity interchanged between him and Floyd in the plant and at Glenn's home. The re- spondent had protected Glenn while the latter had been at work in its plant, and the beating of Glenn occurred outside the respondent's plant. Floyd and the employees who accompanied him to Glenn's home had no supervisory duties at the respondent's plant, and there is no evidence that in assaulting Glenn they were the respondent's agents or that the respondent afterwards in any way ratified their actions. We shall dismiss the allegations of the complaint, relating to the assault upon Glenn. GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 393 The complaint alleges that on June 26, 1937, the respondent by its agents, Floyd, James Karam, and Jerome Shaw, assaulted E. F. White. White was not employed by the respondent. He was the financial secretary of Local No. 47 of the International Molders Union in Gadsden. The evidence established that as White on June 26, at the conclusion of a hearing in a trial, was coming down the steps of the Gadsden City Hall, a quarrel, partly caused by differences in their opinions concerning the United and the Etowah, broke out between two sisters-in-law, Mrs. Carnes, an employee of the respond- ent, and Mrs. Kilpatrick, whose husband was then in the respond- ent's employ; and that White became involved in the quarrel going on between the two women, apparently having been pushed into the fray by the crowd behind him, and was struck by Mrs. Carnes' hus- band, an employee of the respondent, by J. W. Harwell, not employed by the respondent, and by Jake Shaw, brother of Jerome Shaw, both employees of the respondent. There is no evidence that Floyd or Karam, a squadron member, both of whom were present during this fight, in any way participated in it. The evidence is conflicting as to whether or not White was assaulted because he struck Mrs. Carnes in the face. We find it unnecessary to resolve this conflict in the evidence. The above incident occurred outside the respondent's plant. White was never employed by the respondent. There is no indication that White was attacked because of his union membership and activity, nor is there any evidence that his assailants, one of whom was not even an employee of the respondent, were agents of the respondent. We shall dismiss the allegations of the complaint in regard to the assault upon White. The complaint alleges that the respondent held a meeting to plan violence to outside organizers of the United. Substantially all the evidence relating to this allegation of the complaint is contained in the testimony of Woodrow Kilpatrick, then an employee of the re- spondent belonging to the United. Kilpatrick testified that one eve- ning late in May 1937, Harry Trussell, a squadron member, arranged to meet him secretly outside Gadsden and there informed him thathe, Trussell, had just left an Etowah meeting on the golf course where plans had been made by Karam, McCulloch, and one Hallmark, em- ployees of the respondent, to run a United organizer out of town; that after receiving this warning he at once warned B. T. Garner, the United organizer in Gadsden, to leave the city that evening; and that Garner did so. Garner corroborated Kilpatrick's testimony. Trus- sell admitted that at this time and place he warned Kilpatrick that the United organizer in Gadsden was in danger. However, Trussell denied either that he had told Kilpatrick about any meeting of the 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Etowah on the golf course or that any meeting to his knowledge had ever been held there to plan violence to a United organizer. Mc- Culloch corroborated Trussell's denial concerning the golf course meeting. Karam and Hallmark did not testify at the hearing. We- need not resolve the conflict in the testimony of Kilpatrick and Trus- sell. Even accepting Kilpatrick's testimony as true, we do not believe that such evidence alone, in view of the fact that it is hearsay, proves. that a meeting was in fact held on the golf course to plan violence to Garner. We shall therefore dismiss this allegation of the complaint. The complaint alleges that on June 9, 1937, James Karam, an agent of the respondent, unsuccessfully attempted to assault Garner, a United organizer. Garner testified that on June 9 as he and Troy Higdon, a member of the United formerly employed by the respond- ent, were lunching at a small restaurant in Gadsden, James Karam, a member of the squadron, entered the restaurant with Mike Self, head watchman of the Gulf States Steel Company plant, together with two men wearing Etowah ribbons; that neither Karam or Self addressed any remarks directly to him but that Self several times urged Karam, who had his hands in his pockets, to "go ahead," saying, "I have got you backed up"; that finally Self, in a disgusted tone, said, "let's get the hell out of here"; and that thereupon the group, left. Higdon testified that Karam and Self said nothing to, and did not threaten, Garner. We do not believe that the above evidence establishes that Karam and Self intended to assault Garner. We shall therefore dismiss this allegation of the complaint. The complaint alleges that on May 19, 1937, the respondent by its agent, Claude Dorough, administered a severe beating to H. C. Adams, a member of the United, and on June 14, 1937, promoted Dorough to supervision as a reward for this action. Adams, then an employee of the respondent, in May 1937 filled out an application for United membership. Adams was a tire builder and late in April 1937 his supervisor, one Bice, had sug- gested to him that he attempt to break the tire-building record, which was then held by Crider, ' a member of the United. A few days later Adams told Bice that he wished to attempt to break the record that evening at the plant. Bice agreed to help Adams by bringing any defective tires that Adams had built back to Adams' machine for the latter to repair, instead of letting Adams himself obtain the tires at the inspector's desk. Adams succeeded in break- ing the tire-building record, although of the 101 tires he supposedly built that evening in order to break Crider's record of 95, Adams actually built only 93, borrowing the others from another employee. Bice further assisted Adams that evening by repairing two defective GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 395` tires returned to Adams. Adams stated at the hearing that some of the tires which he built that evening were defective and yet were not returned to him by the inspector for repairs . Adams testified, however, that some tolerance was allowed tire builders in their work, and that it was a daily occurrence for tires with such defects as his had, not to be caught by the inspector. About May 15, Adams_ made a speech at a United meeting in regard to his attempt to break the tire-building record, saying that he had built tires that night with defects in them which the tire inspector , Claude Dorough,, should have caught and did not. Adams also stated in his speech that Dorough was discriminating between United and Etowah tire builders. The testimony of A. L. Countryman, Jr., who heard Adams' speech , indicates that Adams made even stronger remarks concerning Dorough's inspection . Countryman testified that Adams stated that he had built tires that night "not fit for the public market, to be on sale," which Inspector Dorough had passed. These remarks in Adams' speech evidently came to Dorough's attention, for on May 19, Dorough accosted Adams just outside the respond- ent's plant and, after questioning Adams concerning this speech at the United meeting, cursed and attacked him. The evidence establishes that Dorough assaulted Adams not be- cause of Adams' United activity as such, but because Dorough felt that Adams' United activity in the form of Adams' speech at the United meeting reflected upon the quality of Dorough 's inspection work in the plant. In fact, Adams admitted at the hearing that the statements he made in his speech concerning Dorough's work were probably not justified . The assault on Adams, although outside the plant, apparently occurred on the respondent 's property. The re- spondent punished neither Adams nor Dorough for this incident. Michaels testified that after the respondent 's officials had investi- gated the incident, Adams apologized to Dorough ; and that the respondent, since the fight had occurred outside the plant, considered the incident closed and inflicted no penalties on either of the par- ticipants. Dorough was then a production inspector of tires. Al- though Dorough's promotion to supervision was not publicly announced until shortly after his attack on Adams, the respondent had scheduled Dorough for this promotion some 6 months prior to this incident . We shall dismiss the allegations of the complaint concerning the assault upon Adams. The complaint, as amended, alleges that on June 7, 1937, the re- spondent by its agents, W. B. Loflin and Marvin ( Speedy ) Brock, administered a severe beating to B. E . Cleveland , a member of the United, and that thereafter the respondent made Loflin a member of the squadron as a reward for beating Cleveland. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The evidence concerning this incident is sharply conflicting. Cleve- land, an employee of the respondent who joined the United in 1933, denied the testimony of the respondent's witnesses Anne Clark, Ruby Vernon, Marjorie Smith, Bertha Smith, Dan Martin, A. N. Graves and Gerald Crowder, all employees of the respondent, that on two occasions he had referred to Clark, Vernon, and the two Smiths in insulting language in the presence of some of the foregoing witnesses. However, the evidence is undisputed that Division Superintendent Follo on June 4, because of complaints he had received from the allegedly insulted women, spoke to Cleveland in the plant concerning these complaints; and that Cleveland promised Follo to see the women about them but never did so. On June 7,1937, as Cleveland was enter- ing the plant, Wesley Loflin questioned him concerning the alleged insults to these women and gave him a severe beating. Brock, Hall- mark, and Templeton, employees of the respondent, witnessed the beating, although the evidence is conflicting as to whether or not they participated in it. Loflin was not then in the respondent's employ, although several weeks previous to his assault upon Cleveland he had arranged to go to work at the respondent's plant. Loflin testi- fied, and there is no substantial evidence to contradict his testimony, that the sole reason for his assault upon Cleveland was his belief that the latter had insulted the four women, with at least one of whom Loftin was well acquainted. On June 11 or 12, in accordance with the arrangements he had made previously with the respondent's officials, Loflin entered the respondent's employ as a member of the squadron. We do not find it necessary to determine whether or not Cleveland actually ever made any insulting remarks about the four women. Whether or not Cleveland did make the remarks, we believe that . Loflin was of the opinion that Cleveland had done so and therefore assaulted him. There is no substantial evidence that the beating of -Cleveland was caused by his United membership and activity. Loflin or the employees allegedly involved in the assault did not act therein as the respondent's agents, none of them having any supervisory duties. Since the fact that Loftin was one of Cleveland's assailants did not become known to the respondent's officials until 2 or 3 weeks after Loflin had actually entered its employ, his employment by the respondent cannot be said to have been a reward for his beating of Cleveland. The assault occurred outside the plant, although ap- parently on the respondent's property. In view of the fact that the beating did not occur in the plant, that the beating concerned a per- sonal matter, and that Loflin was not then in the respondent's employ, we 'are of the opinion that the respondent's failure to punish Loflin in any way upon subsequently learning of his participation in the GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 397 beating or its failure to punish any of the employees who possibly may have taken a hand therein cannot be regarded as a ratification of their part in the beating of Cleveland. We shall dismiss the allegation of the complaint, as amended, concerning the assault upon Cleveland. The complaint alleges that on May 31, 1937, the respondent by its agents, Karam and McCulloch, wrecked an automobile occupied by three United members, one of whom was Kilpatrick, and that Karam and McCulloch pointed a shotgun at the three United members, cursed them, and asked the sheriff, Leath, to arrest them. As more fully described hereinafter,, the United members on the evening of May 31, 1937, held a parade in Gadsden during which they -drove about the city in 40 or 45 cars, shouting and blowing horns. After the parade had lasted for several hours, Sheriff Leath stopped it and ordered the participants to return to their homes. The car in which Kilpatrick and two other men were riding on their way home collided with a car, which had not been in the parade, driven by Karam, an Etowah member. The evidence is conflicting whether the ,collision was the fault of Kilpatrick or Karam, or whether the col- lision, was deliberate or accidental. Kilpatrick testified that McCul- loch was in the car with Karam and pointed a gun at him, while Karam threatened him. McCulloch denied Kilpatrick's testimony .in so far as it concerned his actions, and asserted that Hallmark, an employee of the respondent, was in the car with Karam and that he, McCulloch, was in another car behind Karam's. Karam did not tes- tify at the hearing. When Sheriff Leath drove up after the collision, Karam asked him "to arrest" Kilpatrick and the other occupants of Kilpatrick's car. Leath refused to do so. However, Ben Stewart, a policeman, took Karam to the police station because the latter had a shotgun in his possession. Sheriff Leath then went to the police sta- tion and obtained Karam's release. Leath first testified that Karam was a special deputy and that he obtained Karam's release by inform- ing the police of this fact. After much evasive testimony, Leath finally admitted that Karam had never been deputized, but asserted that Karam was doing some "private work" for him, and that the police released Karam when informed by him'of this fact. We do not believe that the record supports the allegation of the complaint concerning this incident. We shall dismiss this allegation of the complaint. The complaint alleges that since April 1, 1937, the respondent spon- sored and encouraged a series of acts of terrorism directed at the officers and agents of various labor unions, including the United, with the intention of coercing and intimidating those of its employees who desired to join a labor organization not dominated by the re- 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent. Most of the evidence introduced at the hearing bearing upon this allegation of the complaint has been discussed above in connection with the more specific allegations of the complaint in re- gard to acts of coercion and intimidation by the respondent. Otis Adams, an employee of the respondent who was a member of the separate negro division of the Etowah, during a meeting of his division of that organization held one evening outside the plant, when asked to serve on a membership committee, agreed to do so, but ex- pressed disapproval of the suggestion of another member that a committee be formed to administer beatings to members who refused to attend meetings regularly. The following week, just after he had -left the plant, Adams was assaulted by 8 or 10 white men and was beaten so severely that he was not able to return to work for 5 weeks. Adams was never able to identify any of his assailants. His only knowledge of the cause, for this assault came, from remarks made to him subsequently by an unknown negro and an unknown white man who told him that his "slight remark" about the "beating conven- tion" was responsible for the assault upon him. In view of the lack of identification of Adams' assailants and of the vague evidence re- lating to the cause of the assault upon him, the respondent cannot be held responsible for the attack upon him. James Karam was a member of the squadron from April 1937 until he voluntarily left the respondent's employ late in August 1937. Karam was a member of the Etowah and chairman of its bargaining committee. He did not testify at the hearing. Such activities of Karam as his part in the United parade on May 31 and his alleged attempt to assault Garner in Gadsden have already been described. On several evenings after the parade incident on May 31, Karam drove an automobile around the house of Kilpatrick, cursing the lat- ter, until finally stopped by the police. Kelly Morgan, a state police- man, once or twice when he had been sent to protect the United members while they were holding meetings in Gadsden, noticed Karam standing near the United meeting hall. Louis Wadsworth, an employee who worked near Karam in the plant, testified that in June 1937 after he had joined the United and worn a United button in the plant, Karam informed him that although they had been the -best of friends, they no longer were so. Wadsworth testified that Karam then told him that "he [Karam] had a hundred and eight men that rode every night" and that if Wadsworth was jailed "John -Lewis wouldn't come" to get him out but if he was an Etowah mem- ber and was jailed, Division Superintendent Neiger would get him out. Wadsworth testified that when he asked Karam if the latter's work was dangerous, Karam stated that lie "had been in it a long time," and that the 14 members of the United who had been dis- GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 399 charged or laid off in June 1936 and reinstated in May 1937 would be discharged as soon as the respondent "could find anything on them." We find that Karam made the above remarks to Wadsworth. We are convinced by the evidence that Karam was one of the most active members of the Etowah, and that he also engaged in much .anti-United activity. However, we do not believe that the record proves that Karam's statements and activity, set forth above, consti- tuted a series of acts of terrorism, within the meaning of the allega- tion in the complaint, previously set forth. Ordinarily we would ,find, on the basis of the evidence introduced at the hearing, that by reason of Karam's anti-United statements and activity the respondent engaged in unfair labor practices within the meaning of Section 8 (1) of the Act. But in view of the scope of the pleadings, we do ,not make such findings in the present proceeding. Ted Morton, an employee, was laid off or discharged, as herein- after described, by the respondent on June 9, 1937. Subsequently, Morton was arrested together with two other employees of the re- spondent, H. C. Adams and Aubrey Rutledge, in connection with the transportation of dynamite, allegedly to be used to injure the re- spondent's property or some of the respondent's employees and their property. Morton testified that on September 27, 1937, he met Adams and Raymond Knight, an employee of the Gulf States Steel Com- pany, on a country road near Gadsden, and that Adams attempted to persuade him to give testimony before the grand jury which would implicate Cowherd, the United's attorney, in the alleged dynamite plot. According to Morton, Adams told him that he, Adams, was going to give such testimony, and that if Morton would do likewise, Morton would have his job back with the respondent 2 months after the Board hearing had ended, and certain debts of Morton would be paid. Morton testified that both Adams and Knight asked him to join the Etowah; and that when he refused to do so, Knight, push- ing back his coat, placed his hand on a gun and said that it would be best for him "to stay out of town as much as possible." Adams did not deny the foregoing testimony of Morton, and Knight did not testify at the hearing. We credit Morton's testimony. The above incident occurred outside the respondent's plant and there is no indication that Adams and Knight were agents of the respondent or that respondent ever ratified their actions. We are of the opinion that the evidence fails to sustain the al- legation of the complaint in question, and we find that the respond- ent did not sponsor or encourage acts of terrorism after April 1, 1937, directed at members of various labor unions in Gadsden. We shall dismiss this allegation of the complaint. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In its answer to the allegations of the complaint previously dis- cussed in this section the respondent asserts that the United mem- bers, officers, and organizers, and not the respondent, were guilty of acts in Gadsden which terrified the respondent's employees and the inhabitants of the city. The respondent introduced much evi- dence in support of this defense during the hearing. In view of our dismissal of all these allegations of the complaint, such evi- dence becomes irrelevant.4° However, we are of the opinion and we find that such evidence in the majority of cases fails to establish that the United or any of its members were guilty of the threats or acts of violence proved. Rudder testified that while the Etowah committees were meeting at his home he received a mysterious phone call, stating that there would be "uninvited guests" at the next meeting, and heard four -shots fired one night in the vicinity of his home. Rudder did not know whether the shots were intended for him and never ascer- tained or attempted to ascertain who fired the shots or telephoned him. Similarly, Rudder testified that early one morning he was informed by Henry Moore that a car belonging to Jim Lynn, a United member, was parked in front of his house. Rudder never saw the car, and Moore did not testify at the hearing. There is no evidence that the car was there for the purpose of watching or threatening Rudder. McGathey testified that in June 1937 a group of 18 men one night in Gadsden told him that they were going to get "these guys at Goodyear" and that they were after him; that about the same time he was, frequently followed by other automo- biles while driving around Gadsden; and that one night while driving about he heard a shot and saw four' men parked in a nearby car. McGathey never ascertained the identity of any of these in- dividuals nor the reasons for their conduct. Foreman Linn testi- fied that three stink bombs had been thrown into the yard of his home on May 29, 30, and 31, 1937. Linn had no idea who threw the bombs or why the bombs were thrown. Virgil Howle testified that late in May 1937, he received a severe beating at a restaurant in Gadsden. Although Howle stated that he believed he was beaten because he had not joined the United, he admitted that he had no idea who beat him, and no reason for believing that he had been beaten because of labor disputes. Mrs. Carnes testified that immedi- 40 National Labor Relations Board v. Remington Rand , Inc., 94 F. ( 2d) 862 ( C. C. A. 2d, 1938 ), cert. den. 304 U. S. 576 ( 1938 ) ; National Labor Relations Board v. Carlisle Lumber Company, 94 F. (2d ) 138 (C. C. A 9th, 1937), cert. den 304 U S. 575 ( 1938 ) ; idem, 99 F. (2d ) 533 (C. C. A. 9th, 1938 ), cert. den. 306 U S 646 (1939 ) ; National Labor Relations Board v. Hearst, 102 F. ( 2d) 658 (C. C. A. 9th, 1939 ) ; Republic Steel Corp. v. National Labor Relations Board, 107 F. (2d) 472 (C. C. A 3). GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 401 ately after White, as previously described, had been beaten during the fight between Mrs. Carnes and Mrs. Kilpatrick, the wife and two daughters of White on a street in Gadsden threatened to kill her. White's two daughters are employees of the respondent, but there is no evidence that they are members of the United. Goodall and Bell testified that early one morning in 1937 a rock was thrown on Bell's porch, breaking a window; and that attached to the rock was a threatening and insulting anonymous note ad- dressed to Goodall, who lived next door to Bell. The respondent introduced at the hearing the testimony of a handwriting expert to the effect that this note, had been written by A. J. Parker, a United member formerly employed by the respondent. Although Parker twice testified at the hearing, he was not questioned by the respondent's counsel concerning this incident. The evidence does not establish that Parker threw the note, and there is no evidence that the note was not written because of personal differences be- tween Parker and his foreman, Goodall. The note contains no reference to the United or any labor organization. Adams testified that, while the hearing in the instant proceeding was being held, Allen and Kilpatrick drove up to his residence in Tennessee; that Kilpatrick asked him to sign a statement concerning certain testimony he had given before the grand jury relating to incidents involved in the present proceeding, saying that if he did not sign Kilpatrick would beat him while Allen covered him with a gun; that he did not discover if Allen had a gun; and that a few days later Kilpatrick and Allen returned, stated that he had 'sworn out a warrant against them, and asked several witnesses of their previous encounter with him to sign affidavits concerning it. Kil- patrick denied Adams' testimony. Kilpatrick testified that he and Allen had gone to Tennessee to see Leroy Smith, a former employee of the respondent who had testified during the hearing and who lived with Adams; that neither he nor Allen were armed or threat- ened Adams; that he later learned that Adams was asserting that he and Allen had threatened Adams ; that consequently he and Allen again went to Tennessee to obtain affidavits from witnesses of their previous encounter there with Adams; that while there they ques- tioned Adams; and that Adams admitted that his assertions con- cerning their former encounter were untrue. Leroy Smith testified that Allen and Kilpatrick came to see him on their first trip to Ten- nessee, and did so ; and that on their second trip he had heard Adams deny to Kilpatrick and Allen ever accusing them of threatening him. For reasons hereafter set forth, we are of the opinion that Adams' testimony is not to be credited. J. B. Bynum, a member of the Etowah, testified that on June 5, 1937, on a street in Gadsden he met F. W. Rooks, Norton, and Shew, 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all employees of the respondent; and that when he refused their request to join the United, Shew pulled out a knife and threatened to "take him for a ride." Bynum testified that he walked away from the group unpursued. Shew denied the above incident. We find that his denial is to be credited. The evidence and facts we have set forth in the above paragraphs do not establish that the United or any of its members were guilty of any acts of violence or threats thereof in Gadsden in connection with any activities of this labor organization. We have already described the beatings given Glenn and Adams. on May 19, 1937. So far as the evidence shows, these beatings were the first acts of violence relating to labor organizations among the respondent's employees committed in Gadsden in 1937. It is ap- parent, therefore, that the United did not in 1937 initiate violence in Gadsden. On the contrary, the opponents of the United, such as the Etowah, in 1937, as in 1936, were the initiators of such conduct. Moreover, despite the fact that the experiences previously described of the United organizers and members in 1936 in Gadsden and at the respondent's plant had clearly shown them they could not depend upon the city or county authorities or the respondent for protection in Gadsden, where they might well expect to be assaulted, the evi- dence indicates that the United organizers made sincere efforts in 1937 to restrain the United members from committing acts of vio- lence despite the assaults made upon United members in Gadsden in 1937. Thus, Troy Higdon, a witness for the Etowah, testified that when Glenn came to a United meeting shortly after he had received his beating, the United members were enraged by the sight of his, wounds and by the presence of Karam near their meeting hall, and tore up furniture at the meeting hall preparatory to seeking revenge on Glenn's assailants. Higdon, who was then acting as Garner's bodyguard in Gadsden, testified that at this time he, Cowherd, and Garner pleaded with the members "to keep cool" and not "do any fighting." The evidence, however, indicates that although when the United organizers came to Gadsden in 1937 they attempted to avoid all acts of violence, they were finally forced by the violence committed or threatened against the United in Gadsden to tell their members to resist in self defense. Trussell testified that when, the United renewed its activities in Gadsden early in May of 1937 Kilpatrick informed him that United members were not allowed to carry guns- Trussell testified that when late in May he asked Kilpatrick why some United members were carrying such weapons, Kilpatrick re- plied that the members were no longer forbidden to do so because the opponents of the United, such as the Etowah, were carrying GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 403 guns. Howle testified that after Glenn , Adams, and Cleveland had been assaulted , as previously described , Cowherd told the members that since it did not appear that there was "any law" in Gadsden the, men must look out for themselves , that he did not want to hear of any more United members being beaten , and that he could not tell them what to do but that they knew what to do. Adams tes- tified that Garner told the men that "they are beating a lot of men up you all haven't any backbone or you would do some beating your- selves"; and that Garner impressed on the members that they should attempt to take care of themselves and not allow their assailants to "run over" them. B . R. McGraw, a member of the United at this time, testified that Garner or Cowherd told the men that they could not expect him "to tell them to go out and beat hell out of that bunch . . . you fellows ought to have guts enough yourselves, get out and clean up that Etowah bunch ," but that "he couldn't tell us to go ahead and 'do nothing . .- . but fold up like a monkey and take it." Higdon gave testimony similar to McGraw's. Garner tes- tified that while he was in Gadsden in June 1937 he was always accompanied by four or six men. James Higdon testified that he was a member of Garner's bodyguard in Gadsden but • never was, armed. Troy Higdon testified that he was also a member of Gar- ner's bodyguard ; and that he carried a pistol . Adams . and Troy Higdon testified that Garner carried no guns but carried a fountain pen filled with tear gas. In view of the fact that Garner had once, left Gadsden, as previously related, because of warnings received from Kilpatrick , and in view of the 1936 experiences of the organ- izers in Gadsden, it is hardly surprising that Garner deemed it wise to furnish his own protection while in Gadsden. Moreover, although Glenn, a United member , admittedly received a severe beating in 1937 at the hands of Etowah members, there is not a single instance in the record of a member of the Etowah having been beaten by United members or in any way harmed by them. Finally, the evidence shows that threats of violence by members, of the United resulted from immediately preceding violence com- mitted by members of the Etowah . Floyd testified that immediately after he had beaten Glenn, he was warned by Karam that Glenn with a large group of men was going to attack him. Floyd, however, was. never attacked . Clark, Vernon, Marjorie Smith , and Bertha Smith all testified that on the afternoon of May 30, 1937 , on a street in. Gadsden two members of the United, Jim Lynn and Gertrude Yai- kow, pointed guns at them and threatened to kill them. However,, the testimony of these witnesses reveals that that morning in Gads- den two girls, Vera Taylor and Mabel Phillips, had been involved in a fight with Yaikow; and that when Lynn and Yaikow pointed 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD guns and threatened the four women, Taylor and Phillips were with the four women, and the threats were primarily directed against the two girls. Crowder testified that in June 1937, about the time Cleve- land had been beaten as previously described, Cleveland and two unknown men warned Crowder one evening on a street in Gadsden to stay at home that night, pointing out that many beatings had recently occurred. Crowder testified that he did not, in fact, re- main at home that evening, and that he was followed about by a car in which there were two unknown men. As previously set forth, on May 31, 1937, the United members paraded in about 40 automobiles through the streets of Gadsden from 9 o'clock until midnight. Troy Higdon testified that before the parade began, the assembled United members sent out an automobile two or three times in an effort to induce Karam to follow it to their meeting place where they could seize Karam. Another employee of the respondent and a member of the United, B. G. Bohanon, testified that Karam had been continually following the automobile of Jim Lynn, a United member, about Gadsden and that the United members wished "to see what he [Karam] was following him. [Lynn] for and put an end to it." 40a Karam, however, failed to appear at this time. As previously described, later Karam did come in contact with Kilpatrick and two other United members, and, far from being threatened or molested by them, was taken into custody by the police for having in his possession a shotgun with which he had menaced the three United paraders. All the respondent's witnesses who actually witnessed the parade testified that they heard no shots fired and that the paraders merely blew horns and shouted. Moreover, Kilpatrick testified that when Sheriff Leath and the police stopped the parade, they searched the leading car and the occupants of it and found no guns. Al- though Sheriff Leath denied making such a search, we are of the opinion that his denial is not to be credited in view of the fact that he testified that he expressly halted the parade because of reports he had received of shooting during it. Leath also admitted that the police might have made such a search at this time. Mrs. Lucille Harrell, owner of a hotel at which many of the respondent's em- ployees lived, testified that she saw in cars in the parade several guns pointed at her hotel. Other witnesses of the respondent, Gi- rard, Bertha Smith, and Superintendent Morgan, all of whom lived near Mrs. Harrell's hotel, testified that they saw no guns in the 4OaTroy Higdon also testified that the United members intended to "kill" Karam. In view of the testimony set forth above of Bohanon, and of the evasive and unreliable char- acter of much of Higdon's testimony , as indicated by his testimony and affidavit concern- ing remarks allegedly made by Turner or Culberson to him on June 25 at the plant, we do not credit this testimony of Higdon. GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 405 parade. Jordan, who lived at the hotel, testified that he saw no guns in the parade, although Mrs. Harrell told him that she had seen a gun in it. Mrs. Harrell also testified that during the parade she received it threatening telephone call, and that on two occasions ilfter the parade she heard shots fired at night near her' hotel. Mrs. Harrell did not know who fired the shots or made the telephone call. C. C. Lumpkin, it participant in the parade, testified that he saw 4 or 5 blackjacks and 8 or 10 shotguns before the parade started, but only 1 gun in the parade. Troy Higdon, it participant in the parade, testified that lie was armed during it. Bohanon testified that he saw some guns before the parade started. In view of what had happened previously to United members in Gadsden, it is not sur- prising that a few of them had armed themselves for protection during this parade. There is no evidence that any shots were fired during the parade. We are of the opinion and we find that the parade did not, as the respondent's answer alleges, terrorize the em- ployees of the respondent, or the inhabitants of Gadsden, that it was conducted in a peaceful manner, and that most of the partici- pants in it were unarmed. Adams, it witness for the Etowah and a member of the United formerly employed by the respondent, testified that the use of dynamite was discussed at several United meetings, particularly by Garner; that lie, Garner, A. J. Parker, Troy Higdon, and Ted Mor- ton, it former employee of the respondent belonging to the United, had made plans to obtain dynamite; that although no plans had been made as to how the dynamite would be used, there were rumors that the car of Karam or it gate of the respondent's plant would be blown up; that Garner informed them that Cowherd knew of their plans and fully supported them, but could not state so openly ; that on June 24, 1937, he persuaded Aubrey Rutledge, an employee of the respondent and a-United member, to accompany him and Morton to obtain the dynamite; and that he saw Cowherd that day and obtained his approval of their mission. Rutledge, a witness for the Etowah, testified that on the night of June 23 his automobile had been broken into and a gun stolen from it; that the following morning Adams suggested that they obtain some dynamite and blow up the car of Karam to revenge the car breaking and theft of the gun ; that Morton then said that he knew where they could obtain dynamite if they wanted any ; that Cowherd had no knowledge of their plans; and that the dynamite was to be used solely for the' purpose of revenge upon Karam. Higdon testified that he did not know anything about any "bombs" in connection with the United's activities. Morton, a witness for the Board, testified that he and the two other men had agreed to obtain the dynamite to use for fishing, and denied the 583032-41-vol. 21-27 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony of Adams and Rutledge concerning the purposes for which the dynamite was to be used. The evidence showed that the three men drove to a town near Gadsden and obtained several sticks of dynamite and fuses and caps; that on their return their car collided with another on the highway ; and that thereupon the State police, who had been summoned to the scene because of the automobile accident, discovered the dynamite. Morton told the _ police that the dynamite had, been obtained for fishing. Adams admitted on the witness stand that previous to the hearing he had made a speech, and had signed sworn statements with full knowledge of their contents, which contained falsehoods. Adams testified that he had made and signed these falsehoods because lie then wished to aid the cause of the United. We are of the opinion that Adams' testimony at the hearing is no more trustworthy than his admittedly false statements and affidavits made prior to the hearing. In view of Adams' readiness to tell falsehoods, we feel that no reli- ance can be placed upon his testimony, particularly where it is con, tradicted not only by evidence given by a Board witness but, also by the testimony of Higdon and Rutledge, two witnesses for the Etowah. We find that Adams' testimony concerning the dynamite plot is not to be credited. We need not resolve the conflict between the testimony of Morton and of Rutledge. For the purposes of the present discussion it is inunaterial which man told the truth at the hearing. Rutledge's testimony shows, that he was obtaining the dynamite, and was aided in this deed by Adams and Morton, in order to obtain revenge against Karam for his personal grievance, the breaking into his car and theft of his gun; that the conduct of the three men was not connected with any of their United activities; and that the United organizers and officers had no knowledge of andnever approved or ratified this action. Adams also testified that Robertson, after the discovery of the dynamite, informed him that lie would be beaten unless he went to see Cowherd concerning the dynamite incident. Adams testified that although he did,not see Cowherd until 2 weeks after he received this threat from Robertson, lie was not molested during this time. For, reasons previously set forth,_we give no credence to Adams', testimony- concerning the receipt of, such a threat. Miller testified that in July Karam informed him that his, Karam's, car had been shot into. Karam did not tell Miller who had done the shooting. McGraw testified that Rutledge had in-, formed him one evening that he, Rutledge, had shot into Karam's car five times while the latter was not in it the night before in order to, scare Karam. . Rutledge„ was not questioned concerning this in-, GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 407 cident when he testified at the hearing: In view of Rutledge's testimony concerning his desire for revenge against Karam for personal reasons, his shooting into Karam's car , if he be guilty of such conduct, is not attributable to the United. We are of the opinion and we find the evidence does not estab- lish, as asserted by the respondent , either that the attacks on the United were provoked and ;instigated by threats of violence or violence by the United adherents in Gadsden or that the United was guilty of acts of terrorism in Gadsden. E. The 1937 discharges, lay-offs, and discriminations in regard to hire and tenure of employment Troy and James Higdon, Howle, Lumpkin, McGraw, Bohanon, and Adams, employees of the respondent and members of the United at one time, who were witnesses for the Etowah or the respondent, all testified that at United meetings Cowherd and Garner urged United members to let the respondent discharge them so that charges of unfair labor practices against the respondent could be filed with <the "Board and the discharged individuals , by securing reinstatement with back pay, could have vacations with pay. Rutledge, a witness for the Etowah, and Kilpatrick, Holmes, DeBerry, and A. J. Parker, all employees of the respondent and members of the United, denied that Cowherd ever made such remarks, testifying that he urged the United members to do everything possible to avoid being discharged and stated that if they were discharged because of their union activ- ity, the United would do all in its power to secure their reinstate- ment with back pay. We credit this testimony of Rutledge and the other four witnesses concerning Cowherd's remarks . Moreover, we are of the opinion that the evidence fails to prove that, even if Cowherd or Garner made such remarks as Adams and, the other six witnesses testified to, any of the employees, whose discharge or lay-'offs are hereinafter discussed , acted pursuant to such advice. On the contrary, the evidence shows that these employees made every effort possible to avoid being discharged or laid off. 1. The discharges of Brooks , Stanford, Parker, Vinyard, Forman, and Smith The complaint, as amended, alleges that in 1937 the respondent discriminated in regard to the hire and tenure of employment of 23 employees because of their union membership and activity. Six of these employees were tire builders . Since the respondent main- tains that these six employees were discharged because of defective workmanship, it is necessary to examine in some detail the process of tire building and inspection in the respondent's plant. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There are approximately 85 tire builders on each of the three shifts operated in respondent's plant. On each shift there is also an inspector, a supervisor, and a shift foreman. The inspector does not attempt to check all tires built on his shift. Each tire builder completes between 40 and 80 tires on his shift. Inspector Mc- Culloch testified that he tried to inspect 10 tires of each passenger tire builder and 5 tires of each truck tire builder on each shift. Shift Foreman Dooley testified that the inspectors attempted to check about 10 per cent of the work of each tire builder on a shift. Each tire inspected has a number on it indicating the machine on which it was built. By determining on what machine a tire builder is working on a shift an inspector can thereby ascertain which tires any employee has built. Michaels, Shift Foreman Charles Dooley, Labor Trainer McDaniel, and Adams, a tire builder formerly em- ployed by the respondent, all admitted, as is apparent from the above facts, that an inspector might discriminate against any tire builder by concentrating on his tires and inspecting a larger pro- portion of his tires than usual during a shift. The tire inspectors in 1937 included McCulloch, Dorough, Bene- field, and Logan. As previously set forth, Dorough and McCulloch both had shown hostility toward the United and taken part in the 1936 incidents in Gadsden. Logan had been an employee repre- sentative for the company-dominated Plan and on April 26, 1937, had asked Brooks while working in the plant to join the Etowah. Moreover, in addition to the hostility shown toward the United by three of the inspectors in the tire room, many of the other super- visory officials there had also revealed a similar attitude toward the United. The foreman of the department, Goodall, as previously stated, bad taken an active part in the evictions of June 8 in his de- partment. Neiger, superintendent of this division, as we have previ- ously set forth, on numerous occasions had revealed to the employees his hostility toward'the United. " Supervisors Tucker, Jackson, and Phillips, as well as Labor Trainer McDaniel, and Shift Foreman Dooley, had all been guilty, as previously set forth, of conduct re- vealing their antipathy, toward the United. The defect in building tires with which we are chiefly concerned is known as a short ply. It is a well-established rule in the respond- ent's plant that whenever a tire builder discovers that he has built a short ply in a tire, he must call the defect to the attention of his supervisor, who then takes charge of the defective tire. If an em- ployee has called the defect to the attention of the supervisor, the eniployee is not penalized in' any way for having built a short- ply tire. GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 409 Conflicting testimony was given at the hearing concerning how often short plies were built and whether or not tire builders could detect this defect when building a tire. Cunningham, shift fore- man in the tire room, testified that short plies were not usual or customary, but also admitted that the inspectors found defective tires daily and bad plies "once in a while," and that tire builders did build a great many short plies. Henry Lowry, a truck tire builder, testified that lie had built short plies several times because of carelessness or defective stock. Shift Foreman Dooley testified that on his shift there often were 10 or 12 short plies each day; and that it was not at all unusual for an inspector to find several short plies each day. McDaniel, a labor trainer, testified that "a good many," short plies were first caught by the inspectors. In- spector McCulloch testified that he had caught many short plies not reported to supervisors. H. B. Vinyard, a tire builder, first testified that he could always tell when he had built a short ply, but later admitted that he- had several times built short plies- and had not known that he had done so. Vinyard pointed out that the tire builders had no gauge with which to measure the width of a ply and could only obtain accurate knowledge by calling over a super- visor, who had a gauge with which to measure the ply. Inasmuch as plies are measured in sixteenths of an inch, we believe it extremely unlikely that a tire builder can always tell when a ply is one-sixteenth of an inch short. In fact, Crider, a tire builder, and Adams, both testified that the respondent allowed a tolerance in short plies of a sixteenth of an inch from the standard specifications. Frye, head of the development division, testified, however, that the sixteenth of an inch tolerance was allowed not for plies that were too short, but only for those that were too long. On the basis of all the evidence, we are of the opinion and we find: (1) that tire builders frequently build short plies; (2) that tire builders often cannot tell when they have built short plies;' and (3) that the inspectors frequently detect short plies not previously called by the builders to the attention of their supervisors. The respondent's officials asserted that the respondent" always dis- charged a truck tire builder the first time that he built a short ply which was caught by an inspector and which he had not previously called to the attention of his supervisor ; and that the respondent always discharged a passenger tire builder the third time that he had a tire caught by an inspector with a short ply which the had not previously called to the attention of his supervisor. The evidence showed that since the respondent had opened its plant in Gadsden in 1929 and prior to the discharges in 1937 hereinafter discussed, but seven employees, one of whom was later rehired, had 410 DECISIONS- OF.-NATIONAL -.LABOR RELATIONS. BOARD been discharged for building short plies. Two of these had been dis- charged in 1931, two in 1932, one in 1935, and two in the early months of 1937. In view of the evidence set forth above concerning the fre- quency with which previously unreported short plies are caught by inspectors, it is clear that the respondent could not have enforced the rules relating to penalties for short, plies, previously described., If the . respondent had enforced such rules for truck and . passenger. tire-" builders, it is clear, in view of the frequency with which undetected short plies are caught by. inspectors, that there would. have been far more discharges for short plies prior to May 1937. We find that the respondent either did not have the rules above mentioned in re- gard to discharges for the building of short plies, or if such rules existed, had.seldom if,ever.enforced them prior to May. 1937. The.re- spondent also introduced evidence showing that in 1929 it had dis- charged 13 employees for building defective tires. The respondent's officials stated that although their records did not show the nature of these defects some of them might have been short plies. Inasmuch as the plant was first opened in 1929, it is most probable that these defects were due to the inexperience of these employees. The re- spondent also introduced evidence of discharges for building tires with defects the exact nature of which its records did not reveal, for one employee in 1930, four in 1931, two in 1936, and three in 1937. Although there is no proof that any of these discharges were for short plies, nevertheless, even if we should assume that they were,'1 it is apparent that the discharges shown are still far too infrequent to indicate that the respondent really enforced its alleged rules relating to discharges for short plies. On April 19, 1937, the respondent received a letter from the Ohio corporation cautioning it about the quality of its tires and warning it in particular about the numerous short plies that had been found in them. However, Goodall, foreman of the tire-building department, insisted,at the hearing that prior to the receipt- of this letter there had-been no leniency in the enforcement of the rules in regard to dis- charges for building short plies, and that the only effect that this letter had was to increase the carefulness of the inspection of the tires. Beginning in the middle of May 1937, coincident with organizing activity by the United, and prior to the middle of September, 1937, six employees, all members of the United, were discharged for build- ing short plies. All six discharges were allegedly in accord with the rules which, as previously set forth, either had not existed or had seldom been enforced prior to, this time. No other employees were ?' On the basis of such an assumption , there would be no.discharges .for short . plies in either 1933 or 1934, but one discharge in 1930 , six in 1931 , two in 1932 , one in 1935, and two in. 1936. ' , GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 411 discharged during this period for building short plies. Thus, within period of 4 months in 1937 the respondent discharged for short plies but one less employee than it had discharged for such conduct since the opening of the plant in 1929, and every one of the six employees discharged was a member of the United. In view of the fact that most tire builders frequently built short plies and that it was a com- mon occurence for such defects not to be detected by the builder; and in view of the previous hostility shown by the supervisory officials and the inspectors in the tire room toward the United, and of the opportunities for discrimination against United members in the in- spection of their tires, we think it extremely suspicious that only United members should have been discharged for this defect in ac- cordance with the respondent's alleged rules, when- the respondent allegedly tightened up its inspection in 1937 because of the letter which it had received from the Ohio corporation. We shall now consider the facts of each of these six discharges. L. T. Brooks. Brooks went to work for the respondent as a tire builder in August 1929 and remained at this job, except for a 5-month lay-off in 1933, until he was discharged on September 7, 1937. Brooks joined the United in April 1937, constantly wore hi§ United button in the plant while at work, and had his name posted as a member of the United shop committee on the plant bulletin boards in May 1937. Shift Foreman Dooley admitted that he knew that Brooks was a member of the United. Moreover, Supervisor Jackson had asked Brooks if lie belonged to the United, and when he stated that he did, replied that he; Jackson, was surprised that Brooks had joined this organization which was like "the Klu Klux Klan" and would not last 2 years. At the time of his discharge Brooks was building a truck tire, one of the largest inade by the respondent. Foreman Dooley testified that he considered Brooks a "very good" tire builder, who always had called the attention of his 'supervisors promptly to all short plies. There is no evidence that prior to his discharge Brooks had ever been reprimanded for building short plies or any other type of defective tire. Brooks testified that 3 weeks before he was discharged Foreman Dooley asked if he was leaving his job, remarking that many of the United men were quitting; and that he replied he was not. Dooley explained his remark by testifying that Brooks had once informed him that he, Brooks, would quit unless the United fully organized the employees at the respondent's plant, and that because the United, had not succeeded in organizing the employees he had asked Brooks, if Brooks was quitting. ,'Brooks testified that on September 1 he built a short ply ; that, after hunting 20 minutes for Dooley, whom he could not find in the 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD department, he completed the tire and sent it through to the inspector without marking the short ply; that a short time later he was in- formed by Dooley that the short ply had been discovered ; and that Inspector McCulloch found this defect. Dooley testified that he had watched Brooks building a tire from a distance of 10 feet, had believed Brooks was acting suspiciously, had inspected the tire on Brooks' machine and found it apparently all right, but because of his suspicions, had warned Inspector Mc- Culloch to check Brooks' tires very carefully; and that later Mc- Culloch had reported finding a short ply. Dooley claimed that the ply was one-half inch short. Brooks claimed that the ply was but one-quarter inch short. Both Goodall and Dooley testified that Brooks was discharged because of the respondent's rule that a truck tire builder was always discharged for the first short ply which he built, and failed to call to the attention of his supervisor. Dooley and Goodall testified that Brooks accused Dooley of watching him build the tire and that Dooley denied so-doing. Dooley, testified, that he denied this fact to Brooks and that he lied in so doing, but stated that he deliberately told Brooks this lie in order to obtain Brooks' reaction. Goodall and Dooley testified that after Brooks had accused Dooley of watching him and Dooley had denied this fact, Brooks then stated that after building the short ply he had attempted to find Dooley without success. Brooks strongly protested his discharge, but, after several days delay, on September 7 Goodall, with the approval of Neiger, dis- charged him. As we have already found, the respondent either did not have a rule that truck tire builders were discharged for their first un- reported short-ply tire or had seldom if ever enforced it. Conclusive evidence of this fact is supplied by the circumstances, hereinafter set forth, relating to the discharge of Leroy Smith, another truck tire builder. According to the testimony of the respondent's wit- nesses, Smith, on the, first occasion when he had two unreported short plies was merely warned, and was not discharged until he subse- quently built and failed to report two more short plies. Moreover, Brooks was an experienced tire builder, who had been in the re- spondent's employ for 8 years without any previous complaints con- cerning his work. We believe it extremely unlikely, therefore, that the respondent would discharge Brooks for his first offense. And, we believe that Dooley's testimony concerning his watching Brooks build the defective tire is not to be credited, particularly in view of the fact that Dooley expressly denied such conduct to Brooks when Brooks was discharged. Brooks was a prominent member of the GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 413 United. McCulloch, Dooley, Goodall, and Neiger, the four employees and officials of the respondent connected with his discharge, all had shown hostility toward the United. We are of the opinion that the respondent's officials used Brooks' short ply as a pretext to conceal their true reason for discharging him-namely, his United member- ship?andl activity. We find that the respondent discharged Brooks because of his union membership and activity. The respondent by discharging Brooks discriminated in regard to his hire and, tenure of employ- ment, thereby discouraging membership in a labor organization and interfering with, restraining, and coercing its employees in the ex- ercise of the rights guaranteed in Section 7 of the. Act. Brooks,desires to return-to his, former position in the employ of the respondent. Clarence Stanford. Stanford was hired in 1931 as a tire builder and was discharged on May 14, 1937. He joined the United in 1934 and wore a United button while at work in the plant on the 2 days previous to his discharge. Neiger testified that Stanford's work had been satisfactory until the day before his discharge. Stanford- testified- that,on-May 13 he was informed by, Shift Fore- man Cunningham that lie had built a defective tire; that he obtained the tire, on which the defect of wrinkles was marked; and that he repaired this defect and then sent on the repaired tire. Stanford testified without contradiction that although the respondent's rules require that short plies must be checked by a supervisor after being 'repaired and before being sent on, other defects such as wrinkles may be repaired without the supervisor's approval and sent on with- out notifying him. McCulloch was the inspector who had caught the defect in Stanford's tire. Cunningham, the shift foreman, testified that the inspector had found the tire defective not because of wrinkles but because of a short ply, and had marked the latter defect on the tire ; and that the tire had been returned to Stanford to repair the short ply. Henry Lowry, a witness for the respondent and also a tire builder and squadron member, testified that lie had seen Stanford's defective tire at the inspector's desk with the short ply in it and with the short-ply defect marked on it. The inspector, McCulloch, also corroborated the testimony of Cunningham. Cunningham testified that at the end of the shift he remembered that Stanford had not shown him the tire for his approval after repairing the short ply ; that consequently he warned the inspector to watch for the tire; and that the inspector then caught the tire a second time with the short ply unrepaired. 'Cunningham testified that the next day, May 14, he questioned Stan- ford concerning the tire and that Stanford denied both to him and 414 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD' to Goodall ever having seen the short ply marked as a defect on the tire. Stanford testified that when lie saw the tire the next day he noticed it very slight short ply in it for the first time. Neiger admitted that the ply was a very short one, only a quarter of an inch, and that he believed that Stanford might not have seen it the first time: Neiger testified that Stanford would not have been discharged for building this short ply even though it was on a truck tire, because it was so small. - However, Goodall; ,Neiger, and Cunningham testified that Stanford was discharged for dishonesty in attempting to conceal the defect instead of repairing it when it was called to his attention by Inspector McCulloch. Goodall and Cunningham both testified that Stanford finally ad- mitted his dishonesty to them before being discharged. Stanford denied making such an admission. McCulloch, the inspector who caught the original defect, as pre- viously pointed out, was hostile toward the United. Henry Lowry, Goodall, and Neiger. had.,also.a•clearly shown their .dislike of. the United. Neiger admitted that Stanford's case was "one of the most unusual cases that I have ever run into." In view of the fact that no further penalty would have accrued to Stanford if lie had repaired the short ply when it was called to his attention, that he would not have done so seems very improbable. No reason appears in the record why Stanford would have deliberately risked the loss of his job by attempting to conceal and failing to repair the. short ply when it was called to.his attention. On the evidence as a whole, we are of the opinion that Stanford's testimony is to be credited; that Stanford repaired the only defect, that of wrinkles, called to his attention ; and that the respondent's officials subsequently seized upon another defect in the tire, a very slight short ply, which had not previously been called to Stanford's attention, and used this defect to conceal the fact that they were discharging Stanford because of his United member- ship and activity, which, as Neiger admitted, was known to them because of the fact- that.Stanford was wearing and had been wearing a United button. We are of the opinion and we find that the respondent discharged Stanford because of his union membership and activity. The re- spondent by discharging Stanford discriminated in regard to his hire and tenure of employment, thereby discouraging membership in a labor organization and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Stanford desires to return to his former position in the employ of the respondent. GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 415 A. J. Parker. Parker was hired February 5, 1935, as a tire builder; and was discharged on June 7, 1937: During 1936 he was temporarily laid off for 2 or 3 months. Parker testified that when he was recalled to work about January 1, 1937, Foreman Goodall sent for him, told him that his tire-building record had been perfect, congratulated him on this fact, and remarked that Parker was the youngest one of six employees out of the 50 tire builders laid off with him to be recalled at this time. Goodall denied ever telling Parker that the latter had a perfect record and stated that the latter did not have such a record. Goodall did not deny the rest of the above testimony of Parker. We are of the opinion that Parker's testimony is to be credited. Parker joined the United on April 1, 1937, and from April 15 until the day he was discharged he wore his United button while at work in the plant. Foreman Dooley admitted that he knew that Parker belonged to the United. Parker testified that about 3 weeks before he was discharged Super- visor Bice warned-him to be careful because "they are watching you like hell." Bice did not testify at the hearing. We- find that he made the above remark to Parker. On June 5 Parker noticed that the stock from which his tires were built was "running narrow" and called over Supervisor Benefield to check the stock. Benefield did so; threw some of the stock away, and told Parker to use the remainder, because it was "all right." Parker also called Benefield's attention to a short ply which he had built, and Benefield properly tagged it. A short time later Supervisor Benefield informed Parker that two of his tires had been caught with short plies. Parker testified that he knew these two tires had short plies when he put them on the con- veyor, but that with the narrow stock it was impossible to avoid building the short plies in the two tires; and that because he had called his supervisor's attention to the narrow stock, he did not believe it necessary to inform him about the short plies, since Benefield must have realized from the narrowness of the stock that the tires built from it would have short plies in them. ' The following workday, June 7, Goodall sent for Parker and in- fornied him that he was discharged because of the short plies he "had built. Parker denied at the hearing that he had ever been warned or reprimanded for a short ply prior to the two above-mentioned ones on June 5. Shift Foreman Dooley testified that a day or 'two before Parker was discharged, Inspector Logan and Supervisor Benefield told him, Dooley, that they had warned Parker about building'defec- tive tires and asked Dooley also to warn Parker; and that he, Dooley, did so. Dooley testified that on June 5 Benefield informed him that he, Benefield, had caught- another-tire of- Parker's with a short 'ply 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and had -warned Parker that he would have- to turn Parker.over to Dooley if he caught another bad ply. Dooley testified that later on June 5 Benefield caught two more short plies of Parker's and re- ported it to him, and that he sent Parker to see Goodall on June T. H. C. Adams,.a tire builder, testified that on June 7 Parker had told him that he, Parker, was discharged because another short ply of his had been caught' due to, the_ fact that the stock was a little narrow,, and that a day or two before one or two short plies of his had, also been caught. Benefield did not testify at the hearing, nor did Logali. Goodall testified that Dooley and Benefield informed him that they had previously warned Parker for building defective tires, and that Parker had ignored such warnings ; and that, after looking at the last two defective tires Parker had built, he discharged the latter. Good- all' testified' that' Parker was discharged in accordance with the respondent's rule that a passenger tire builder was discharged the third time he built a short-ply tire without calling it to the attention of his supervisor. Parker testified that at his request he- had an interview with Division Superintendent Neiger; and that Neiger told him, "let this be a lesson to you wherever you go . . . get on the right side." Neiger testified that he merely told Parker to do his work better if he got another job. Neiger denied the remainder of Parker's testi- mony. We do not credit his denial and find that he made the remarks to Parker set forth above in the latter's testimony. Louie Allen, a United committeeman, testified that Goodall in- formed him that Parker was discharged not merely for short plies but because of his "attitude," which was "so bad" that Goodall could not "get along with him," and which had been "bad" since Parker had joined the United. Goodall did not deny the above testimony of Allen. We find that Allen's testimony is to be credited. Since neither Logan nor Benefield testified at the hearing, we are of the opinion that Parker's testimony that he received no reprimands from them for building short-ply tires prior to June 5, is to be credited. For reasons previously set forth, we give no credence to Adams' testimony. We are of the opinion also that Dooley's testi- mony that he had once rebuked Parker before discharging him is not to be credited. However, even assuming that Dooley, as he testified, rebuked Parker, we are of the opinion as we have previously pointed out that the respondent either did not have a rule or had seldom if ever enforced a rule that passenger tire builders were discharged the third time that they built a short ply without calling it to the attention of their supervisor. Moreover, in view of the fact that the two short plies for which Parker was discharged were largely the fault of the orders he received from his supervisor, Benefield, forcing GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 417 him to build tires with too narrow stock, we do not believe that the respondent's officials could have blamed Parker or discharged him for building these two short plies. Indeed, the remarks of Supervisor Bice to Parker a short time before the latter 's discharge indicate that the respondent's officials were deliberately watching Parker's work in order- to obtain a pretext for his discharge . Finally.; Goodall's remarks to Allen and Neiger's -remarks to Parker clearly indicate that the respondent discharged Parker for his United membership and activity and not for the building of short plies. We find that the respondent discharged Parker because of his union membership and activity. The respondent by discharging Parker discriminated in regard to his hire and tenure of employment, thereby discouraging membership in a labor organization and inter- fering with , restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Parker desires to return to his former position in the employ of the respondent. H. B. Vinyard. Vinyard was employed by the respondent in 1930 -,is a repairman for tires . After working for 18 months , he left the respondent's employ, but returned to work as a tire builder for the respondent in 1933 and worked at this job until he was discharged on J line 24, 1937. Vinyard joined the United on April 24, 1937, and constantly wore his United button while at work in the plant during May and June 1937. Foreman Dooley testified that he knew that Vinyard belonged to the United. Foreman Dooley testified that on June 21 Supervisor Tucker com- plained that Vinyard had been building defective tires, said that he had warned Vmyarcl about them, and requested Dooley to warn Vin- yard. Tucker corroborated this testimony of Dooley. Vinyard denied receiving any such warnings. Inspector McCulloch testified that on June 23 he caught five con- secutive unmarked short-ply tires of Vinyard. Dooley testified that when McCulloch informed him of this fact, after looking at the tires. he told Vinyard to see Goodall the next day about them . Vinyard admitted building the five short -ply tires. He testified that before building these defective tires he had asked Tucker to measure his tire stock; that Tucker did so and found it was too narrow, but ordered him to use the stock to build tires ; and that the short plies resulted from the too narrow stock. Tucker admitted that Vinyard had coin- plained to him about the narrowness of the stock . Tucker testified that after measuring the stock lie had replaced it with good stock; and that the short plies later caught by Inspector McCulloch were not built from the stock about which Vinyard had complained to him. 418 DECISIONS_ OF. NATIONAL LABOR RELATIONS BOARD Vinyard testified that while Tucker was measuring the stock. he called Tucker's attention to a short ply that he had built and had Tucker tag it. Tucker testified that Vinyard had not called his attention to this short ply but that he discovered it himself while measuring the stock and rebuked Vinyard for not calling it to his attention. When Vinyard saw Goodall on June 24, Goodall informed him that he was discharged for building short plies and warned him not to say that he was discharged because he belonged to the United. We find that the five short plies built by Vinyard were the result of Tucker's orders to use stock that was too narrow. In view of Tucker's previous anti-United activity, we believe that Tucker seized this oppor- tunity to discriminate against Vinyard and cause defects in Vinyard's work, and that Goodall, McCulloch, and Dooley, also hostile toward the United, subsequently approved and aided this action of Tucker. We are also of the opinion that Vinyard's testimony that he had never been rebuked for short plies prior to June 23 is to be credited. How- ever, even assuming that Vinyard had been rebuked once or twice before, as Dooley and Tucker testified, as we have previously pointed out, we do not believe that the respondent either had a rule or had ever really enforced it, if it.,existed, that passenger tire builders were dis,- charged the third time they built a short-ply tire without calling it to the attention of their supervisor. We find that the respondent discharged Vinyard because of his union membership and activity. The respondent by discharging Vinyard discriminated in regard to his hire and tenure of employ- ment, thereby discouraging membership in a labor organization and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Vinyard desires to return to his former position in the employ of the respondent. A. J. Forman.. Forman worked for the respondent during the sum; men of 1936. On December 10, 1936, he was rehired by the respondent as a tire builder. He was discharged on June 10, 1937. Forman joined the United on April 23, 1937, and his name was posted on the plant bulletin boards in May as a member of the United shop committee. Forman testified that during the entire time that he worked for the respondent until June 7 he built only four-ply tires, but that on June 7 he was ordered to build six-ply tires by his supervisor, Clayton. Forman testified that although he had- never built six-ply tires before, lie received,•no instruction 'as to how to build them. Goodall ,testified., that there was little difference between' building four- and six-ply tires. Labor Trainer McDaniel corroborated Goodall's testimony. McDaniel also testified that in the case of a transfer from a four- to a GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 419 six-ply tire the tire builder would need "very little instruction in building a six ply except as to short ply." 4z McDaniel testified that he had not given Forman any such additional instruction at this time, since Supervisor McBride or Supervisor Jackson ordinarily would have done so. Neither McBride nor Jackson testified at the hearing. We find that- it was-customary-to give instructions concerning short plies when tire builders were transferred for the first time from four- to six-ply tires, and that Forman never received such, instructions. Forman testified that prior to June 10 he never had been warned or. reprimanded for defective work; that aue to his inexperience in building six-ply tires he built several short-ply tires during the days following his transfer on June 7, but was never reprimanded for so doing; that on June 10 he again built a short ply, which an inspector ,caught; and that lie then was ordered by his supervisor, McBride, and shift foreman, Cunningham, to see Goodall, who. discharged him. McDaniels testified that he had been informed by McBride that For- .mail had been warned three or four times for defective tires; that on June 7 he overheard Inspector Dorough. warn Forman for such conduct; that on June 8 Forman built four short plies, on June 9 several more, ;acid op, June, 10 three. more, a ►ppe.of which had been called to the attention of his supervisor; and that Inspector Dorough .caught all of Forman's short-ply tires. Cunningham, the shift fore- man, testified that on June 9 McBride showed him two short plies ,of Forman and stated that he was going to warn Forman about them; and that on the following evening, when the inspector showed him three more short plies of Forman, lie told Forman to see Goodall. Goodall testified that he discharged Forman because Forman, after having been warned several times for building short-ply tires, still Jailed to stop building them or to report them to the supervisor. As we previously pointed out, we do not believe in- the existence or at- least in the-enforcement of the rule of tlie`'iespondent in regard .to short plies, for the violation of which Forman allegedly was- dis- charged. We find that Forman, having joined the United, because he had done so, was deliberately transferred to a six-ply tire, given ,no instruction in building it, and then when, as was inevitable, he built defective tires, was discharged. Even if Forman had been warned previous to June 10 about his defective tire building, we are of the opinion that these defects were the result of his being .assigned to building a new type of tire without receiving the cus- toma,ry. , inst-i tjloni_ ,aiid; ,flat : the, respondent',s,,.oficials were using such • warnings merely as a pretext in order to discharge. Forman for his United. membership and activity. However, Inspector ,Dorough, who. caught all of -Forman's allegedly defective tires, - did 42 Italics supplied. 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not testify at the hearing. Dorough's hostility toward the United has previously been described. McBride also did not testify at the hearing. In view of these facts, we are of the opinion that Forman's testimony that he had never been rebuked prior to June 10 for build- ing defective tires is to be credited. - We find that the respondent discharged Forman because of his union membership and activity. The respondent by discharging Forman discriminated in regard to his hire and tenure of ,employ- ment, thereby discouraging membership in a labor organization and interfering with, restraining, and coercing its employees in the exer- cise of the rights guaranteed in Section 7 of the Act. Forman desires to return to his former position in the employ of the respondent. Leroy Smith.. Smith was hired by the respondent in March 1936 as a tire builder, and discharged on June 8, 1937. Smith testified that when he was hired his cousin, Henry Moore, -a supervisor at the respondent's plant, warned him in the presence of Miller and Michaels not- "to have anything to do with the Union." Michaels testified that Moore introduced, Smith to him as "a man- that, will not belong to the union." - We are of the opinion that Smith's testi- ., mony is to be credited. Smith joined the United in April 1937 and wore his United button while working in the plant. Moore; upon learning that Smith had joined the United, told him that although they had "been friends," they no longer were so. A week before Smith was discharged, Moore met Smith outside the plant and told him that because he had been "talking to some damned union men . . . they are going to beat the God damn hell out of you . . . they are going to half kill you . . . you been doing a lots of talking." Foreman Dooley also knew that Smith belonged to the United. Smith was a truck tire builder at the time of his discharge. Smith testified that prior to June 7 there had been no complaints about his work; and that on June 7 Foreman Dooley told him that two tires of his had been discovered with short plies and that he would have to see Goodall the next day. Supervisor Tucker testified that on June 7 the inspector had discovered two short plies in tires built by Smith; that he thereupon warned Smith; and that later that same day, when the inspector caught,two more tires of Smith's with short plies, Foreman Dooley, sent Smith home. Dooley testified that Inspector McCulloch told him -that he, McCulloch, would "love" for Dooley, to look at two defective tires of Smith; and that when he did so, he saw that one short ply, one-half inch in width, must have been a deliberate error. - McCulloch also testified that he had caught two Short plies in Smith's tires, one of which was one-half inch short, GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 421 and which Smith must have seen when building it. Smith denied that he had known of the existence of the short plies until informed of them by Dooley. Goodall testified that he discharged Smith on June 8 because the latter had been warned several times previously for building short plies without calling them to the attention of his supervisor. We are of the opinion that Smith's testimony that he had not been rebuked' for'short plies prior to the two or which he allegedly was discharged, and his testimony that he had not, when building the tires, seen the two short plies for which the respondent allegedly discharged him, is to be credited. Inasmuch as there was no penalty attached to the building of a short-ply tire if the defect was called to the attention of the supervisor, there would seem to be no reason for Smith, a tire builder with an unblemished record, deliberately to run the risk of discharge by not calling a short ply which he had seen to the attention of his supervisor. Finally, in the case of Smith, as in the case of the five employees previously discussed, we are of the opinion that the respondent's rule either did not exist or was not enforced in regard.-to the 'discharge' of tire-builders for short plies not called to the attention of their supervisor. Tucker, McCulloch, Dooley, and Goodall all were hostile to the United, and we believe that these employees and officials of the United discriminated against Smith because of the latter's United member- ship and activity. We find that the respondent discharged Smith because of his union membership and activity. The respondent by discharging Smith discriminated in regard to his hire and tenure of employment, thereby discouraging membership in a labor organization and interfering with, restraining, and coercing its employees in the exercise of the ,rights guaranteed in Section 7 of the Act. Smith desires to return to his former position in the employ of the respondent. 2. The lay-offs of Garron, Thompson, Brown, Beauford, and Howard The respondent contends that five of the employees involved in the present proceeding were laid off by it in the normal course of operations at its plant. Craigmile testified that the seniority, skill, and number of dependents of the individual employees were con- sidered in reducing the number of employees, and that seniority, in this case, referred to'the length of time the employee had worked for the respondent, and not the -length of time he had worked on a particular job. Michael's testified tliatthe policy generally followed -by the respondent was to lay off or discharge the last employee' hired _-_ _283032-41-Vdl. 21=28 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in a department, although the relative efficiency of individual em- ployees was taken into' account, especially if the difference in. their seniority was slight. Hugh Garron and Paul S. Thompson. - Garron was hired by the respondent on October 13, 1936, and laid off - on May 20, 1937. .There had been no complaints -about the work; of Garron,..who ,Yas..a.:lay- down man. Garron joined the United in February 1937 and, beginning May 1; 1937, wore his United button while at work in the plant. Garron testified that his foreman, Oliver, informed him that he was being laid off because he was the junior man in the department. Garron testified, however, that in his department, he was senior to five mill men, to two truckers, Washburn and Saks, and to two lay- down men, James Ashley and Hoyt Sutherland. The respondent's officials testified that the lay-off of Garron was necessitated by the re- instatement in his department of Adams and Holmes, whose lay-off or discharge on June 8, 1936, has previously been described. Adams and Holmes were both mill men. Superintendent Follo testified that mill men were highly skilled employees, whom it took from 1 to 3 weeks, to-train; and that,it was the respondent's policy to, lay,<off- mill men only after all other employees possible had been laid off. Foremen Rearick testified that Ashley and Sutherland both were mill men and consequently were not laid off before Garron, despite their junior status. However, the respondent's officials did not contradict Garron's testimony, which we credit, that he was senior to two truckers, Washburn and Saks. The evidence also establishes that Garron was senior to another trucker, Cole. Follo and Rearick both testified that trucking is-an unskilled job, which can be learned in about a clay. Consequently, adopting the respondent's policy of seniority as set forth in the testimony of Michaels and Craigmile, Washbiiin, Saks, and Cole should' have been laid off before Garron was, since Garron, who was senior to them, readily could have learned to do their work. Since Garron had worn his United button in the plant, we find that the respondent' s officials knew of his United membership and activity and laid him off in violation of his seniority rights because of his union membership and activity. The respondent hired Thompson on September 4, 1936, and laid him off on May 20, 1937. Thompson was a trucker, and there had been no complaints concerning his work. Thompson joined the.United-.irr April 1937`and, begingirig'May 1, 1937, wore his United button while at work in the plant. Thompson's foreman , Oliver, informed him that due to the re- instatement of Adams and Holmes he was being laid off because he was the junior man in the department. Thompson testified that in GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 423 his department he was senior to 15 mill men and to 3 truckers, namely, Washburn, Saks, and Cole; and that 4 months before his discharge he had helped Cole learn the job of trucking. The re- spondent produced no records, such as it must have had in its possession, in regard to Thompson's testimony concerning his senior- ity, although Superintendent Follo testified that ,Thompson was the junior trucker. We credit Thompson's testimony. We find that Thompson, despite his seniority over three other .truckers .in his department, was laid off by the respondent in viola- tion of his seniority rights because of his United membership and activity, which was known to the respondent's officials since Thompson had worn his United button in the plant. We find that the respondent laid off Garron and Thompson be- cause of their union membership and activity. The respondent by laying off Garron and Thompson discriminated in regard to their hire and tenure of employment, thereby discouraging membership in a labor organization and interfering with, restraining, and coerc- ing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Garron and Thompson desire ,to return to their former positions in the employ of the respondent. L. C. Brown and E. V. Beauford. Beauford entered the respond- ent's employ on February 24, 1936, and was laid off on June 24, 1937. Beauford joined the United on June 2, 1937, and on one occasion wore his United button in the plant. Beauford's regular job was an unskilled one, the weighing of car- .bon black. At the time of Beauford's lay-off, the respondent had eliminated his job of weighing carbon black by the installation of machinery. Prior to his lay-off, Beauford had done other jobs in the plant,_such as putting up batches and cutting rubber. However, the evidence showed that he had-done, such jobs: which required more skill than weighing carbon black, poorly, earning only 29 cents an hour as compared with the average earnings of. 70 cents an hour on these operations. Beauford testified that lie was senior to five men in his department but admitted that all five were skilled rubber cutters. The respondent's officials testified that, after Beauford's regular job had been eliminated by the new machinery, in view of his failure to show ability to perform other, more highly skilled jobs, he was ,laid off. Brown was. Hired-,in January; 19^5.=by the, respondent::ai d laid off on June ' 25, 1937. Brown joined the United in April 1937 and wore his United button in the plant. 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brown entered the respondent's employ as a weigher of carbon black. In September 1936 he was transferred to a branberry job, which required more skill and which he performed well. Brown also worked for a short time on a mill, but did poor work. In May 1937, due to a curtailment in the respondent's production, lie was transferred back to his former position of weighing carbon black, and he was laid off when this position was eliminated by the installa- tion of machinery. For approximately a week before his discharge the respondent's officials, in an attempt to find another job for Brown, tried him out as a rubber cutter. However, Brown did not do well on this job, earning only 45 cents an hour instead of the average of 70 cents. Brown testified that he was senior to one bran- berry man, W. F. Maddox, who was not laid off when he was. Fore- man Rearick testified, however, that Maddox worked on a different and more complicated branberry than Brown had, and that conse- quently there was much difference between the work of the two men. The respondent's officials testified that Brown was laid off for the same reasons as Beauford. We find that the respon'dent did- not'lay off Brown and Beauford because of their union membership and activity. We shall dismiss these allegations of the amended complaint. Ro.,ebud Howard. Howard entered the respondent's employ on August 15, 1936, and was laid off on May 5, 1937. There had been no complaints about her work. Howard joined the United the day before she was laid off. She never wore a United button in the plant. Foreman Pack, who laid off Howard, told her that the reason therefor was the fact that she was the junior employee on her job. There were three other girls, Rebecca McCain, Mable Jones. and Juanita Parker, employed in her department, who were junior to Howard and who were not then laid off. However Parker made truck beads, a job for which Howard was too light. McCain and Jones in addition to performing Howard's work of rerolling tape, also did several other jobs in the department, including gum strip- ping. Pack testified that, although Howard was a satisfactory tape roller, her, production had been insufficient when the respondent tried her out on the job of gum stripping; and that, because of her inability to perform other work, she was laid off because of a decline in production, despite her seniority over the other, more versatile, girls. We find that the respondent did not lay off Howard because of leer union membership and activity. We shall dismiss this allega- tion of the amended complaint. GOODYEAR TIRE & RUBBER COMPANY OF ALABANIA 425 3. The _lay-offs, or discharges of Quinn, Walker, Lasseter, John Woodruff, Milner, Cleveland, Ayres, Dick, Robert Woodruff, and Morton The respondent asserts that 10 of the employees involved in the present proceeding were discharged or laid off for cause. Donald D. Quiw^n. Quinn entered • the ,respondent's employs oil February 1, 1937, as a millwright helper in the engineering depart- ment, and was discharged on July 19, 1937. Quinn joined the United in May 1937 but never wore a United button in the plant. Quinn and his wife testified that late in May 1937. Alvin T. Whitt, a friend of theirs and an inspector in the respondent's employ,, came to their home and asked Quinn to join the Etowah, telling him that Nigosian, head of the engineering department, wished him to do so. Whitt admitted asking Quinn to join the Etowah then, but denied either that Nigosian had sent him to see Quinn, or that he had made such a statement to Quinn. Quinn had had 8 years' experience working on machinery before he entered the respondent's employ, but he admitted that the ma- chinery at the respondent's plant was very different from any he had previously worked on. Quinn testified,, that he took this job with the respondent with the definite understanding that it was a temporary one which would become permanent if he proved that he would make a good millwright; and that Nigosian told him that the respondent could tell in 6 weeks whether he -would make a millwright. Quinn testified that lie never had been informed about defects in his work prior to his discharge. McGathey, Quinn's supervisor, tes- tified that lie had been dissatisfied for some time with Quinn's work, but did not recall ever warning Quinn. At the time of Quinn's dis- charge, the chief mechanic, Mallory, told him that he would not "make a millwright" and that lie was discharged because of his unsat- isfactory work and because he was the junior employee. Quinn testi- fied that lie was senior to two other employees, one of whom was a millwright helper. Shortly after he was informed by Mallory of his discharge, Quinn asked McGathey if his work had been satis- factory. McGathey replied, "yes, and no," and also told Quinn that although the latter was a, competent machinist, lie would never make a millwright because the machinery in respondent's plant was too big and complicated for him. Quinn was hired with the understanding that he would be retained in respondent's employ only if he proved that he was capable of per- forming the work of a millwright. Consequently, his discharge by the respondent when he had shown that lie was unable to perform 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such work, even though unaccompanied by, prior warnings in regard to his work, was not unusual. We find that the respondent did not discharge Quinn because of his union membership and activity. We shall dismiss this allegation of the amended complaint. W. L. Walker. Walker entered the respondent's employ on Feb- ruary 2, 1937, as a pipe fitter in the engineering department, and was discharged on June 1, 1937. Walker joined the United on May 7, 1937, but never wore a United button in the plant. After joining the United, Walker also joined the Etowah, and the day that he was discharged he was wearing an Etowah ribbon in the plant. There is no evidence that any of the respondent's officials knew that Walker belonged to the United, and inasmuch as he was wearing an Etowah ribbon, it is more probable that they believed that he belonged to that organization. Walker had 7 years' experience as a pipe fitter before entering the respondent's employ. Walker testified that a few days before his discharge, Foreman R. A. Reese told him that he was the only man ever to give "satisfaction" on his job. Reese admitted telling Walker that his work was satisfactory but testified that he told Walker this early in February, a week after Walker had been hired. On May 30 Walker repaired a steam pipe in the plant. On June 1 Walker saw that the repaired pipe was leaking. Mallory, upon discovering the defective pipe,, discharged Walker, telling him, "you haven't been giving satisfaction." Walker testified that he had never been repri- manded for poor work prior to June 1. Supervisor Culberson testified that on two previous occasions Walker had failed properly to repair steam pipes; and that on several occasions he had rebuked Walker for poor work. McCay, who worked with Walker, testified that he had heard Mallory warn Walker to do better work; and that he had heard Culberson warn Walker about his work. We find that Walker's work had been defective on several occasions, when his supervisors had warned him, previous to his discharge. We find that the respondent did not discharge Walker because of his union membership and activity. We shall dismiss this allega- tion of the amended complaint. L. R. Lasseter. Lasseter entered the respondent's employ on June 15, 1936, and was discharged on August 4, 1937. Lasseter began to work for the respondent as a feeder in the pit. In March 1937 he ran a mix mill for 4 days, and then was transferred to a position on a lamb-black mill. On August 3, the day before he was dis- charged, Lasseter was transferred back to a mix mill. Lasseter joined the United in May 1937 and wore a United button in the plant. GOODYEAR TIRE & RUBBER COMPANY' OF ALABAMA 427 On May 19, 1937,-.Superintendent Folio rebuked Lasseter for incor- rectly marking a batch of rubber. On June 9 Lasseter was repri- manded by Foreman Welch for three incorrect rubber mixtures. On July 23 Supervisor Crow reprimanded him for incorrectly marking a batch of rubber. On July 27 Lasseter again incorrectly marked a batch of rubber. On August 4 Supervisor Crow discharged Las- seter, when the latter improperly mixed a batch of rubber. Lasseter testified that prior to. August 4 no one to his knowledge had ever been discharged for an offense such as he had committed, but he admitted that on July 23 Supervisor Crow in reprimanding him had threatened him with discharge if his work did not improve. We find that the respondent did not discharge Lasseter because of his union membership and activity. We shall dismiss this allega- tion of the amended complaint. John G. Woodruff. Woodruff entered the respondent's employ in 1933 and was discharged on May 24, 1937. Woodruff joined the United in 1933. Subsequently he resigned, but rejoined in April 1937. He wore a United button. one day in the. plant prior to his discharge. Shortly before he was discharged in May 1937, Woodruff, having notified the respondent's officials that he was ill, was absent for 3 days from his work. The third day Woodruff met Foreman Ralph Chalfant downtown in Gadsden and asked Chalfant to arrange for him to have the rest of the week off so that he could go to Birming- ham to see his wife, who was ill in a hospital there. Chalfant was not Woodruff's foreman at this time. Woodruff testified that Chal- fant promised to "fix it" for him. Chalfant testified that, since he was not Woodruff's foreman, he told Woodruff to see his own fore- inan, Hundley, to obtain his permission. Chalfant testified, and Woodruff denied, that Woodruff was "about half drunk" at this time. Chalfant testified that he later reported to Hundley that he had seen Woodruff drunk in Gadsden and that Woodruff had asked for permission to be absent from work because of his wife's illness. We credit Chalfant's testimony. On May 24, 1937, Superintendent Folio discharged Woodruff. Woodruff testified that Folio told him that he was discharged for "laying out and drinking and running around"; that he admitted drinking beer but denied being drunk; that Follo, said, "that doesn't make any difference, as far as I am concerned you are through"; and that Follo told him that he "was always on the wrong side." Folio testified that, after Woodruff had been given a sick pass, he later learned- that. Woodruff's wife and not Woodruff was ill and that Woodruff was in Gadsden drunk; and that when he discharged Woodruff, Woodruff admitted drinking and stated that he expected 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to be discharged. Folio denied, and Hundley corroborated-his deiial, telling Woodruff that the latter "was always on the wrong side." We credit Folio's testimony. Foreman Hundley testified that on at least three occasions prior to Woodruff's discharge, either he or Follo had rebuked Woodruff for .being absent, from; work, because,of, drunkeiiness.,,'Woodzuff-, did-not deny receiving such rebukes, and we find that he did receive them. Woodruff also testified that in June 1936 he twice had been absent from work for periods of 3 to 4 days, once in order to take a trip, and once because of his wife's illness ; and that both times he told the respondent's officials that he would be absent and gave them the reasons for his absence. Woodruff's absences, because of •the^ fact that, lie was, a,member- of a crew of 10 men working in the mill room, temporarily stopped the work of the entire crew and seriously cut down the earnings of the crew by forcing them to work with an inexperienced man sent to replace Woodruff during the latter's absences. We find that the respondent did not discharge Woodruff because of his union membership or activity. We shall dismiss this allega- tion of the.amepded complaint. Hattie Milner. Milner had worked for the respondent for 7 years prior to her discharge on June 23, 1937. Two weeks before she was discharged, she joined the United and during that period wore her United button while at work in the plant. While working in the plant on June 23, 1937, Milner passed by the machine of V. L. Adams, a girl employed by the respondent. Adams cursed Milner, who reported the incident to her foreman, Pack, and also to Lloyd Rilly, a service boy with whom she worked. Both Rilly and Adams were members of the Etowah. About an hour and a half later Milner again passed by Adams' machine in order to obtain some material for which Rilly had sent her. Adams cursed her and hit her over the eye with a wrench. Foreman Pack stopped this- fight-,and. sent Milner- to the plant hospital for treat- ment. After leaving the hospital, Milner was sent by Foreman Pack to Goodall, who informed her that she and Adams were both discharged because they had violated the respondent's rule prohibit- ing fighting while at work in the plant. Foreman Pack testified that when Miller first reported to him having trouble with Adams, he ordered Milner to stay away from Adams' machine. Milner denied receiving such an order from Pack and testified that Pack merely laughed at her at this time. Pack also testified that Milner, in order to obtain the material for which Rilly had sent her, did not need to pass closer than 20 feet to Adams' machine. Goodall testified that he investigated this fight and saw GOODYEAR TIRE S RUBBER COMPANY OF ALABAMA 429 that Milner could have remained 10 feet from Adams' machine and still obtained the materials for which Rilly had sent her. Pack ad- mitted, however, that it was possible that the aisle 20 feet away from Adams' machine had been blocked by materials so that it would have been more convenient for Miller to take the path she did, directly by Adams' machine, in order to obtain the supplies ordered by Rilly. There was no evidence introduced at the hearing to show that the .aisle 20 feet. away from-.Adams' machine actually had been blocked on June 23. However, Milner testified that the only way to obtain the materials ordered by Rilly was the aisle near Adams. Milner testified that Goodall at the time he discharged her refused her request that he further investigate the fight, told her that he had as much right to believe Adams' story as hers, and asked her no ques- tions about the details of the fight. Louie Allen, a United committee- man, present when Milner -,w-as discharged, testified that Goodall not only refused to investigate the fight in order to determine who had started it but also said that he would not ask "a bunch of C. I. 0. people anything, because he•kmiew that they would say." Pack ad- mitted that he knew that Milner was a member of the United and Adams a member of the Etowah. Pack testified that Adams told him and Goodall that she had hit Milner because Milner had insulted her about her brother being in jail. Milner denied insulting Adams or talking to Adams about the latter's brother. We find that Milner ordinarily would not have had to pass by Adams' machine in order to perform her work properly. The evidence does not establish that on June 23 there were any reasons, such as the aisle being blocked, why Milner had to pass by Adams' machine in order to obtain the materials for which Rilly had sent her. Under these circumstances, we are of the opinion that the respondent's officials were justified in assuming that Milner had been taunting Adams previously concerning the troubles of the latter's brother, had deliberately gone out of her way in order to pass by Adams' machine again,. and..thereby had. provoked the latter to strike her and begin the fight. We find that the respondent did not discharge Milner because of her union membership and activity. We shall dismiss this allegation of the amended complaint. B. E. Cleveland. Cleveland entered the respondent's employ on August 5, 1929. He was a United member between 1933 and 1936, and rejoined the United in April 1937, when he became a member of the United shop committee. He wore a United button in the plant. We have previously discussed in detail the circumstances in regard to the assault upon Cleveland on June 7, 1937. Cleveland, after having been assaulted, went to a hospital in Gadsden and there re- 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ceived medical treatment. Dr. A. W. Rails, the physician who treated Cleveland at the hospital, testified that lie believed that Cleveland's injuries, the most serious of which related to his teeth, were such that the latter would have been able to return to work in a week or 10 days. Dr. Ralls sent Cleveland home from the hospital on June 7, tellipg,$im,to, see -a , dentist.as^ soon. a€srpossil le.f - Michaels, together with O'Bannon, saw Cleveland at the latter's boarding house on June 7 in order to investigate the assault. Mi- chaels testified that he saw that Cleveland had lost several teeth, had several bad bruises, and was wrapped in numerous bandages; that lie reported Cleveland's injuries to Folio and Hundley, Cleveland's superintendent and foreman, and told them that Cleveland would be absent. for sometime. fromti work because- of these injuries.; that .lie later learned that Cleveland had gone to see a dentist shortly after June 7; and that he then believed that Cleveland would be back to work within a very short time. Hundley denied receiving such a report from Michaels. We give no credit to his denial. On June 14, a week after the assault, Cleveland came to the re spondent's plant, and, at his request, was given the pay then due him by his -foreman-; Hundley;. Cleveland, did,, not,;tell_ Hundley.whemhe would return to work or say anything to Hundley about returning to work. Hundley testified that, so far as lie could tell, at this time Cleveland seemed fully to have recovered from the assault. Cleveland obtained treatment from a dentist, Dr. W. D. Fite. On July 2 Dr. Fite gave Cleveland, at the latter's request, a signed state- ment to the effect that Cleveland because of his injuries would not be able to return to work until July 6. Michaels testified that it was the respondent's rule to discharge any employee who failed to report for work or notify the respondent of the reason for his absence, after 7 days' absence from work. Michaels testified, however, that if the respondent had proof of injuries to the absent employee, this employee would not be discharged at the end of 7 days,even though,-he .failed to report for work or to report his excuse to the respondent. Foreman Hundley testified that after Cleveland had been absent for 17 days from work he notified Miller on June 24 to discharge Cleveland because of the latter's absence. Hundley did not explain why he took such a step in spite of the fact that he had been informed by Michaels that Cleveland was absent due to injuries received in a beating. On July 2 Cleveland telephoned the respondent's plant and for the first time since he had been assaulted on June 7 notified the respond- ent's officials that he wished to return to work. Miller, to whom Cleveland spoke, informed him that he had been discharged due to his failure to report for work, and told him that he, Miller, had GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 431 heard nothing about the assault. Cleveland then told Miller about the assault and stated that he had a doctor's certificate which set forth that he had been unable to return to work prior to July 6 because of his injuries. Miller than told Cleveland to come to the respondent's plant and to bring with him his doctor 's certificate. Cleveland agreed to do so. At Cleveland's request , Miller promised to furnish Cleve- land complete. protection from violence while the latter was in the respondent's plant. After this telephone conversation with Miller, Cleveland never came to the respondent's plant, showed his doctor's certificate to Miller or to any official of the respondent , or made any other request to the respondent to reinstate him. No explanation was offered by the respondent 's officials as to why Cleveland's discharge had been ordered for failing to report to,work despite the fact that the respondent 's officials , Michaels, Follo, and Hundley, knew that Cleveland was absent because of the injuries which he had received from a beating . However, Miller in his tele- phone conversation with Cleveland on July 2, clearly indicated to the latter that the respondent's officials were willing to reconsider his discharge and reinstate him if he would come to the plant and show them his doctor's certificate . Cleveland, despite his promise to do so, failed to apply for reinstatement by coming to the respondent's plant with his doctor's certificate. We find that the respondent did not discharge Cleveland because of his union membership and activity . We shall dismiss this allega- tion of the amended complaint. C. M. Ayres. Ayres, who worked almost 6 years for the respond- ent, had, for a year and a half prior to his discharge on July 12, 1937, been working as a bead curer. Ayres joined the United on May 1, 1937, wore his United button in the plant from the end of May until the time of his discharge, and had his name posted on the respondent's bulletin board as a member of the United shop committee. Ayres cured approximately 640 beads a day. . A. pair, of beads is worth about $1.10. , In curing beads , if the operator fails to remove one bead from the curing machine before inserting another, the two beads will be cured together and both will be spoiled. Both Ayres and Louie Allen, who had cured beads, testified that it was a common thing to cure two beads together ; that they and other employees had often done so; and that it was impossible to avoid such errors. Michaels, Foreman Pack, and B . G. Bohanon , an employee who cured beads, testified that experienced employees seldom if ever cured two beads together ; and that such mistakes were the result of carelessness. Ayres testified that about a year before he was discharged, in one week he twice cured two beads at once without being warned or repri- 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manded ; that 3 months before he was discharged he cured 2 beads together but received no rebuke or warning; and that about May 17, 1937, when he made a similar error, Supervisor Yancey warned him that if he again committed this mistake, he would be discharged. Ayres testified that he was surprised at receiving this warning be- cause on a previous occasion a year ago when he had showed his ing him but had complimented him for not trying to hide his spoiled beads to Yancey, the latter had said nothing about discharg- mistakes. Bohanon testified that Ayres, referring to the May 17 error, told him that Yancey had rebuked him, Ayres, for this mis- take, which had resulted when a quarrel between some women em- ployees had distracted his attention from his work. Yancey did not testify at the hearing. Pack testified that Ayres had been warned by Yancey both for the May 17 error and for a similar mistake less than a week before the May 17 one. We credit Ayres' testimony and find the facts to be as set forth above in it. On July 10 Ayres again cured two beads at once. Ayres showed the spoiled heads to Yancey Who reminded Ayres of the warning on May 17. Ayres replied, "Hasn't my work been satisfactory." Yancey answered, "You have been doing good on the job, . . . I'll admit that." Yancey then told Ayres that the latter "stayed" on his job and did his work "better" than almost any other employee in the depart- ment, but that he, Yancey, had been watching Ayres very closely for the last 2 or 3 months. On July 12 Superintendent Neiger dis- charged Ayres. The evidence convinces us and we find, that, in view of the large number of beads cured daily by each employee, curing two beads at once is a common error. Although Ayres had worked over a year and a half as a bead curer and had on several occasions cured two beads at once, not until he joined the United was he ever rebuked for such conduct. Shortly after Ayres joined the United, Yancey began to watch his work closely and, upon discovering his error in curing'two beads at once, for the first'time rebuked and threatened him with discharge for this mistake. Pack and Yancey knew that Ayres belonged to the United. The respondent's officials admitted that no other employee had ever been laid off or discharged for this error, which was a trivial one in view of the value of the two spoiled beads. We find that the respondent's officials deliberately watched Ayres after the latter had joined the United in order to discover flaws in his work and thereby obtain a pretext for discharging him. We are convinced that, as in the case of tire builders who built short plies, the respondent's officials used minor defects in Ayres' work to conceal their true reason for discharging him-namely, his union membership and activity. In fact, at the time of Ayres' discharge, Yancey told him that his work was satisfactory. GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 433 We find that the respondent discharged Ayres because of his union membership and activity. The respondent by discharging Ayres discriminated in regard to his hire and tenure of employment, thereby discouraging membership in a labor organization and inter. fering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Ayres desires to, return to his former position in the employ of the respondent. Bob Dick. Bob Dick entered the respondent's employ on June 29, 1936, and was discharged on July 8, 1937. Dick joined the United on May 17, 1937, and wore his United button for 3 or 4 weeks before his discharge. About a month prior to his discharge, Dick had been reprimanded for running some bad stock by Foreman Roberts, who told him, "try not to do that any more." There is no evidence of any subsequent complaints in regard to Dick's work. Dick testified that on July 7 his supervisor. Bradley, asserting that he, Bradley, had seen Dick leave work i/, hour early on July 6, reprimanded him for this action; that he told Bradley that he had not left work early; and that on July 8 Foreman Roberts informed him that Superintendent Folio had ordered him discharged. Dick' admitted that it was a very serious offense to leave work early, but denied that he had done so on July 6. The respondent introduced no evidence whatsoever in regard to the discharge of Dick. In view of Dick's testimony and the re- spondent's failure to introduce any evidence, we find that Dick did not leave his work early on July 6; and in view of the respondent's hostility toward the United and its members at this time, as shown by the discharges and other evidence previously discussed, we find that the respondent's officials discharged Dick, not because of a mis- taken belief that he had left his work early, but because of his United membership and activity, which must have been known to them because of the fact that he had worn his United button for several weeks. We find that the respondent discharged Dick because of his union membership and activity. The respondent by discharging Dick dis- criminated in regard to his hire and tenure of employment, thereby discouraging membership in a labor organization and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Dick desires 'to - return to, his former position in the employ of the respondent. Robert B. 'Woodruff. Woodruff was hired by the respondent on August 30, 1929, and discharged on July 14, 1937. Woodruff joined 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the United on April 1, 1937, and was the only United employee work- ing on his shift at the time of his discharge. For 1 or 2 years before his discharge, Woodruff's work had been running breakers on a calender. Woodruff testified that he and the other members of the calender crew with whom he worked had been warned by the respondent's officials on several occasions for an error in their -work known as running off-angle breakers; that about a year before his discharge, he had been laid off for a day for running an off-angle breaker; and that in May 1937 he and another employee were warned by Foreman Hundley that in the future they would be laid off 1 day every time they ran an off-angle breaker. According to Woodruff, on July 6 he ran an off-angle breaker, showed it to his supervisor, Myles, and later, in accordance with Myles' orders, took the defective breaker to the repair department and left it on a desk there, pointed out by Myles, to be repaired. Woodruff testified that on July 14, 1937, Foreman Hundley showed him the defective breaker' which he had made on July 6 and accused him of trying to hide it by "sneaking" it into another department; that he denied so doing and summoned Supervisor Myles, who then denied- telling him to take it to the repair department; that he then called upon a fellow' employee, Brooks, who corroborated his claim that Myles had ordered, him to take the defective breaker to the repair department; and that' Hundley then stated that regardless of Myles' orders in regard to this' defective breaker, Woodruff was discharged. Later Woodruff saw Superintendent Follo. Woodruff testified that Follo told him : "you done pretty well around here until about 5 or 6 months ago; and then you let a `blue belly' come down here and tell you what to do and tell us what we ought to do . . . that is what is the matter with you, that union, union, I have heard about it until I am tired of it." Follo and Foreman Hundley, present at this' interview, denied that Follo made these remarks to Woodruff, and testified that Follo was not a native of the South and consequently never used the expres- sion, "blue belly." Follo and Hundley testified that the respondent had a rule that after a warning for the first off-angle breaker, and a' lay-off for the second, an employee was discharged for his third offense; and that Woodruff had been warned twice and 2 months be- fore his discharge laid off for a week for off-angle breakers. We credit the testimony of Woodruff and find the facts to be as' set forth above in it. The respondent failed to introduce any records; such as presumably must have been in its possession, to substantiate" Hundley's and Follo's testimony concerning Woodruff's lay-off. Nor did the respondent introduce any evidence to show that any employee other than Woodruff had ever been discharged for running off-angle breakers,' although Follo admitted' that other employees had been i GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 435 guilty of this offense. Previous to his discharge Woodruff had run off-angle breakers, had never been punished for so doing apart from a short lay-off, and had been told that the only penalty in the future would be a similar lay-off. The respondent did not explain why Supervisor Myles, who presumably would be acquainted with the rules regarding off-angle breakers, inflicted no penalty on Woodruff on July 6. We find that the respondent either had no rule that an employee was-discharged`'for,the'thiird1off'angle breaker or-had, never enforced such a rule until the case of Woodruff. Folio's remarks to Woodruff prove that the latter was discharged, not because of de- fective work, but because of his United membership and activity. As in the cases of Ayres and the six tire builders, the respondent's offi- cials seized on minor defects in an employee's work to conceal their true reason for discharging him. We find that respondent discharged Woodruff because of his union membership and activity. The respondent by discharging Woodruff discriminated in regard to his hire and tenure of employment, thereby discouraging membership in a labor organization and interfering with, restraining, ands coercing' its :employees in the, exercise of the rights guaranteed in Section 7 of the Act. Woodruff desires to return to his former position in the employ of the respondent. Ted Morton. Morton entered the respondent's employ on February 19, 1937, and was laid off on June 9, 1937. Morton joined the United in May 1937. For the first month that he was in the respondent's employ Morton, together with another employee, ran a large mill in the tread depart- ment. Thereafter, until the end of May, Morton alone ran a small mill in this department. There were no complaints concerning Mor- ton's work during this period: 'Morton testified that at the end, of May 1937, Supervisor Louis Jones transferred him back to a large mill and ordered him to run it alone; that he failed to make the proper production the first four nights that he ran the large mill, partly because the stock that he had to use was defective and wet, and partly because he was inexperienced; that he complained to Jones about the defective stock and his lack of experience in running the mill; and that Jones told him to "go ahead and do the best" he could. Later, according to Morton, Jones took him to see Foreman Hundley and 'Superintendent Follo. Morton testified that Shirley Windsor, an employee who is a United committeeman, was present at this interview at his request, in order to represent him in these dis- cussions with the respondent's officials. According to Morton, at the conclusion of this interview, which concerned Morton's failure to obtain the proper production from the large mill, Follo told him that if he did not bring his production- up to normal, he would lose 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his job, and Hundley ordered Supervisor Jones to give him special instruction in running the large mill for the following three nights. Morton testified that Jones did not give him any special instruction; that he failed to make the proper production on the next two nights, although the third evening he did make it; and that about a week after his interview with Folio, Jones informed him that he would be laid off at the end of a week, but instead laid him off 3 days later. According to Morton, at the time of his lay-off, he asked Jones if he were being laid off because of his union membership, and the latter replied, "I guess you are right." Foreman Hundley testified that lie called Jones, Morton, and Windsor to his office because of the low production of the crew which worked with Morton's mill; that Morton complained about a lack of experience; that he ordered Jones to give Morton special instruc- tion; that Morton failed to show any improvement in his work dur- ing the next fortnight; that he then took Morton, Jones, and Wind- sor to see Superintendent Folio; and that in the interview in Folio's office both Jones and Windsor agreed that Morton should be dis- charged because he was not capable of performing the work on the large mill. According to Hundley, Windsor was present, during these interviews not as a United committeeman representiiig Morton, but as a member of the crew whose work was dependent on the production from Morton's mill; and Morton never complained to him about Jones' not giving instruction. Jones corroborated Hund- ley's testimony and also stated that for a week he had given Mor- ton 4 hours of special instruction each night on running the large mill. Windsor did not testify at the hearing, and there is no evi- dence that his testimony could not have been obtained. Consequent- ly, we are of the opinion that the evidence does not support Mor- ton's testimony that Windsor was present as his representative dur- ing the interview with Folio and, Hundley. Morton admittedly failed to perform his work properly on the large mill. Even as- suming that Morton's testimony is true that he failed to do so be- cause of inexperience, the respondent's officials offered him special instruction. Although there is a conflict in the testimony as to whether or not Morton ever received such instruction, it is clear that if he did not receive it he failed to complain about this fact either to Foreman Hundley or Superintendent Folio. Folio warned Morton that unless he improved his production he would be dis- charged,, and Morton's production- subsequently showed, little im- provement. Moreover, the evidence fails to establish that 'the 're- spondent's officials knew of Morton's United membership at the time of his lay-off. Morton had never worn his United button while at work in the plant. Although Morton testified that he had been asked to join the Etowah in the plant by two employees, C. R. Mills and GOODYEAR TIRE & RUBBER COMPANI OF ALABAMA 437 Hayward Clyde Cotney, and had told both of them that he belonged to the United, both these employees testified that they had never asked Morton to join the Etowah and were unaware of his United membership. The only indication that Morton was laid off for his United membership is his testimony, not contradicted, that Jones, at the time he was laid off in answer to his question if he were being laid off because of his union membership, answered, "I guess you are right." We find that the respondent did not lay off Morton because of his -union membership and activity. We, shall dismiss this allega- tion of the amended complaint. 4. The discrimination in regard to the hire and tenure of employment of Edgeworth and Kilpatrick Millard Edgeworth,. Edgeworth entered the respondent's employ in December 1934. He first worked as a tread booker. During 1935 he was laid off for about 5 months due to a curtailment in production. Although Miller and Superintendent Follo testified that Edgeworth's work had not been very satisfactory, they did not deny his testimony that he had not received any criticism in regard to his work prior to his lay-off.-Shortly after Edgeworth was reinstated by the respond- ent, he was transferred to a more skilled job, that of skiving treads, and in June 1936, in accordance with his request, he was given the job of running a mill, highly skilled work. Edgeworth testified that in September 1936 he asked Foreman Hundley„to be transferred back to his old job of working on treads because his ill health and his small physique made'it difficult for him to work in the mill room; and that Hundley then granted his request and promised him that he would never have to run a mill again. How- ever, according to Edgeworth, in July 1937, despite his vigorous pro- tests to Hundley based on his health and weight, he was again given the job of running a mill, another employee obtaining his tread job. Edgeworth testified that after this transfer he was absent from work for 4 days because of illness; that when 2 weeks after his transfer he returned to work on July 14 his supervisor, Bob Smith, told him that if he could not work the mill he had been running, "they would put me on one where I would have to work" ; that the other mill referred to by Smith was a harder one to run ; that he told Supervisors Smith and Jones that'he could not work this mill because he did not weigh enough ; that when Smith told him he had to work it, he refused to do so; and that Smith then told 'him to get his pay and turn in his tools. Smith did not testify at the hearing, and Jones gave no testimony concerning the above testimony of Edgeworth. Hundley testified that Edgeworth, after being transferred to the mill room, because of illness and his complaints about the work, had been transferred to 283032-41-vol 21--29 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD another mill, and later, when transferred back to his former mill, had quit,- telling Jones and Smith that he "could not run" this mill. We credit the testimony of Edgeworth, set forth above, most of which was uncontradicted and find the facts to be as therein stated. Edgeworth testified that mill workers usually must weigh about 175 pounds; and that he weighed 152 pounds in September 1936 when he had been transferred off the mill, and 162 pounds in July 1937. Miller also testified that the mill workers usually weighed about 175 pounds. Edgeworth joined the United in May 1937. As we previously found, Supervisor Jones asked Edgeworth where his Etowah ribbon was, and when informed by the latter of his United membership, told him that he, Jones, had thought Edgeworth "a good boy" until Edgeworth had had "the crust to join" the United. None of the respondent's offi- cials testified why Edgeworth in July 1937 was, contrary to Hundley's former promise, and in spite of his health and light weight and his protests to Hundley setting forth these facts, transferred back; to running a mill. We are of the opinion and we find that the reason for this transfer was his United membership and activity, known to Super- visor Jones, and his refusal to join the Etowah. Hundley testified that the mills were allotted according to senior- ity, and that the mill to which Edgeworth was assigned by Smith the night Edgeworth quit was the one Edgeworth's seniority en- titled him to have. However, Edgeworth's testimony that, except for one employee, he was the senior worker on his shift in this de- partment was uncontradicted, and we credit his testimony that the mill assigned to him at this time by Smith was usually given the junior employee in the department. We are of the opinion and we find that the respondent's officials, in deliberate disregard of Edge- worth's seniority, because of his United membership and activity, ordered him to run a harder mill, despite his recent illness and light weight. Edgeworth, after these two discriminations in regard to his hire and tenure of employment because of his United membership and activity, by quitting or being discharged for refusing to accept the discriminatory transfer, did not lose the rights guaranteed him by the Act .13 We find that the respondent's conduct toward Edgeworth, set forth above, was caused by his union membership and activity. The respondent by such conduct discriminated in regard to his hire and tenure of employment, thereby discouraging membership in a labor organization and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 43 See footnote 38, supra. GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 439 Edgeworth desires to return to his former job of working on treads in the employ of the respondent , but he does not desire to return to his former position of running a mill. Woodrow Kilpatrick . Kilpatrick entered the respondent's em- ploy in March 1931 and quit his job there on July 15, 1937 . Neiger and Craigmile both testified that Kilpatrick was a very good worker- Kilpatrick joined the United in May 1937 and was an active mem- ber. His part in the United parade on May 31 , 1937, has already been discussed . On June 20, 1937, as previously set forth, Super- intendent Neiger in the presence of Louie Allen and Foreman Pack had rebuked Kilpatrick for soliciting for the United while at work in the plant and made remarks to Kilpatrick and Allen showing hostility toward the United. On July 13, 1937, as Kilpatrick was leaving the plant, J. W. Harwell, an employee of the Gulf States Steel Company, attempted to speak to him. Shortly before this time an unknown person had thrown a rock at the home of Harwell 's father in Gadsden. Har- well testified that because he suspected that Kilpatrick had been the rock thrower, he wished to question Kilpatrick at this time concerning this matter . Kilpatrick, who at the hearing denied any participation in the throwing of the rock , refused Harwell's re- quest to speak to him and, drawing a knife, walked rapidly away from the plant . Kilpatrick testified that two other employees of the respondent, Hallmark and Shew, were with Harwell; and that Hallmark, who had a gun, together with Harwell , got into the former's car and followed him home from the plant . Harwell de- nied following Kilpatrick home and testified that although Shew and Hallmark were present when he approached Kilpatrick out- side the plant , they took no part in his attempt to question the latter. For reasons hereinafter set forth , we find it unnecessary to resolve the conflict in the testimony of Harwell and Kilpatrick. On the following day Emmett Carnes, an employee belonging to the Etowah and a brother-in-law of Kilpatrick , complained to Superintendent Neiger that Kilpatrick owed him money and had refused to pay it. Later that day Neiger, as he had promised Carnes, saw Kilpatrick, who, denying that he was indebted to Carnes, promised Neiger to see Carnes about the matter. Shortly after Neiger had spoken to Kilpatrick, Carnes came up to Kilpatrick in the plant , cursed him , and said that he would see Kilpatrick outside the plant. When Kilpatrick complained to Foreman Pack and Neiger about Carnes' cursing and threats, Neiger promised to see Carnes about this incident . Kilpatrick testified that he also asked Neiger for protection on the respondent 's property ; and that Neiger replied that no one was waiting outside for Kilpatrick , that no one would bother him, that "this damn C. I. O. has been carrying on lots 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of terrorism here in town," and that Kilpatrick had no "cause to be griping about the other side." Neiger denied making these remarks to Kilpatrick. We find it unnecessary to resolve this conflict of testimony. As Kilpatrick was leaving the plant that day, he was met by a group of the respondent's employees, including Carnes, Hallmark, Shew, and Pete Floyd. Kilpatrick refused to talk to Carnes, who then asked Hallmark, "Must I get him?" When Hall- mark replied, "Yes, go ahead," Carnes, taking out a blackjack, to- gether with Hallmark, chased Kilpatrick, who escaped home in his car. That evening Kilpatrick went to the home of Foreman Pack and informed Pack. that he was quittilig-his job at the respondent's plant because he was afraid that he would be killed if he remained at work there. The following day, at Craigmile's request, Kilpatrick, escorted by a police officer sent by Craigmile, came to the plant and saw Pack, Neiger, Frye, and Craigmile. Kilpatrick testified that Craigmile attempted to persuade him to work out a 3-day notice 44 at the plant, promising him protection in the plant during that period, saying, "If I tell those guys not to harm you, you know darn well they would not bother you"; that Craigmile refused to promise him any protection in the plant after the expiration of this 3-day period; and that Craigmile told ^ him, "This damn Labor Board has a stack of affidavits about that high now . . . I don't want any more against us . . . they are losing ground up there in Washington." Pack testified that Craigmile told Kilpatrick that quitting under such circumstances would be "poor advertising" for the respondent and that he did not want Kilpatrick to "go out and broadcast" it. All four officials, however, denied that Craigmile made any reference to the Labor Board or stated that Kilpatrick would not be attacked if Craigmile ordered "those guys" not to do so. In view of Pack's testimony, we find that Craigmile made these remarks testified to by Kilpatrick. Pack, Frye, Neiger, and Craigmile all testified that Craigmile attempted to persuade Kilpatrick not to quit his job, promising him protection as long as he worked in respondent's plant; and that when Kilpatrick insisted upon quitting, Craigmile then at- tempted to persuade him to work out a 3-day notice, promising him protection for that time. In view of the fact that Craigmile, immediately upon learning of Kilpatrick's fears and intention of quitting, sent for Kilpatrick, offering him a police escort, and that Craigmile's remarks during this conference evidence his desire to avoid unfavorable publicity or an investigation by the Board con- cerning Kilpatrick's case, we credit this testimony of these four wit- nesses. In the midst of this conference, Carnes, unbidden, entered 44 See footnote 34, supra GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 441- the room and demanded that Kilpatrick pay the debt. The con- ference ended when Kilpatrick quit his job. 11 The debt, amounting to 'some $20, allegedly resulted from a -motor trip taken in November 1936. Prior to the above-described incidents, Carnes had never attempted to collect this debt from Kilpatrick. And immediately after Kilpatrick had quit his job as described above, Carnes told him to forget about the debt. We are of the opinion that Carnes was using this alleged debt as a pretext to attack Kil- patrick. Carnes was a member of the Etowah. We are convinced by the evidence that Carnes, together with Hallmark, was threaten- ing Kilpatrick because of the latter's membership and activity in the United. However, the evidence does not prove that the respondent's officials were aware of Carnes' real reason for threatening Kilpatrick. The threats against Kilpatrick occurred in part on the respondent's property. None of Kilpatrick's assailants, however, were super- visory employees, nor did the respondent ever ratify their acts. Although Neiger and Craigmile made remarks to Kilpatrick indicat- ing hostility toward the United, we are of the opinion, and we find, that the respondent's officials ultimately offered Kilpatrick reasonable protection from violence and threats of violence while at work in the plant. We find that the respondent, by- permitting Kilpatrick to quit his position in its employ under the circumstances set forth above, did not discriminate in regard to his hire and tenure of employment be- cause of his union membership and activity. We shall dismiss this allegation of the amended complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respond- ent described in Section I above, have a close, intimate, and substan- tial relation to trade, traffic, and commerce among the several States and with foreign countries, and tend to lead to labor disputes burden= ing and obstructing commerce and the free flow of commerce 45 V. THE REMEDY Having found that the respondent engaged in certain unfair labor practices, we shall order it to cease and desist therefrom. In order to effectuate the policies of the Act and as a means of removing and avoiding the consequences of the respondent's unfair labor prac- tices, it is essential that in aid of our cease and desist order the respondent be directed to take certain affirmative action, more par- ticularly described below. 41 National Labor Relations Board V. Fa,nblatt, 306 U S. 601 (1939). 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We have found, that the respondent has dominated, and interfered with the formation and administration of the Etowah and has con- tributed support to it. In order to effectuate the policies of the Act and establish the conditions necessary for the exercise of an unfet- tered choice of representatives by the employees by freeing them from such domination and interference and the effects thereof, which constitute a continuing obstacle to their exercise of the rights guaran- teed them by the Act, we shall order the respondent to withdraw all recognition from the Etowah as a representative of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, and conditions' of work, and to disestablish the Etowah as such representative." We have found that during June 1936 the respondent failed to maintain safe working conditions, in its, plant for its employees who were United members. We shall, therefore, order the respondent to afford all its employees reasonable protection in its plant at all times from physical assaults or threats of physical violence directed at dis- couraging membership in, or activities on behalf of, the United or any other labor organization ; to instruct all its employees in its plant that physical assaults or threats of physical violence directed at discourag- ing membership in, or activities on behalf of, the United or any other labor organization will not be permitted in the plant at any time; and to take effective action to enforce this rule .4 We shall also order the respondent to post notices in its plant stating that its employees are free to become or remain members of the United and that the respond- ent will not discriminate against any employee because of such membership. We have found that the respondent is responsible for the activity of the members of the squadron, many of whom participated in the administration of the Etowah and the anti-United activities. In a previous case we found that members of the squadron should be excluded from an appropriate bargaining unit including production employees.48 We shall order the respondent to prohibit any member of the squadron (1) interfering with, restraining, or coercing the production employees in the exercise of their rights to self-organiza- " See Consolidated Edison Company of New York, Inc, and its affiliated companteq v. National Labor Relations Board, 305 U. S 197. 236 (1938), where the court stated • ` The continued existence of a company union established by unfair labor practices or of a union dominated by the employer is a consequence of violation of the Act those continuance thwarts the purposes of the Act and renders ineffective any order restraining the unfair labor practices." 47 Matter of General Shoe Corporation and Georgia Federation of Labor, 5 N L R B. 1005 , order enforced , modified as to other issues , by consent decree , in National Labor Rela- tions Board v. General Shoe Corporation, 99 F. (2d ) 223 (C C A 5th, 1938 ) ; Matter of Asheville Hosiery Company and American Federation of Hosiery Workers, 11 N. L R B. 1365; Matter of General Motors Corporation, and Delco-Remy Corporation and Interna- tional Union United Automobile Workers of America , Local No. 1116, 14 N L. R. B. 113. 48 See footnote 12, supra. GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 443 tion, to form, join, or assist labor organizations, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection, as guaranteed in Section 7 of the Act, and (2) participating in the formation, administration, or activi- ties of any labor organization of the production employees ; and to take effective action to enforce this prohibition .481 We have found that the respondent discriminatorily discharged or laid off 15 employees during the year 1936. The respondent has rein- stated all those employees except Taylor and Doyal. We shall order the respondent to make whole the 13 employees, whom it laid off or discharged in 1936 and reinstated in 1937, for any loss of pay they may have .suffered by reason of their lay-offs or discharges by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of the respond- ent's discrimination against him in 1936 to the date of the offer of reinstatement to him in 1937, less his net earnings 411 during that period. Doyal, who had obtained work elsewhere before the respond- ent offered to reinstate him in 1937, does not desire to return to his former position in the employ of the respondent. We shall not, therefore, order the respondent to offer him reinstatement. We shall order the respondent to make him whole for any loss of pay he may have suffered by reason of his lay-off or discharge by payment to him of a sum of money equal to the amount which he normally would have earned as wages from the date of the respondent's discrimination against him in 1936 to the date of his obtaining the employment he had at the time of the hearing, less his net earnings 50 during this period. Taylor, who was discharged in 1936 by the respondent and has not been reinstated, desires to return to his former position in the employ of the respondent. We have also found that the re- spondent discriminated in regard to the hire and tenure of 11 of its employees, excluding Edgeworth, by laying off or discharging them in 1937. All these employees desire to return to their former posi- tions in the employ of the respondent. We shall order the respond- 48n Cf. Weinberger Banana Co., Inc. and United Dock and Frwtt Workers' Union, 18 N. L. R. B 786 49 By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer- ica, Lumber and Salomill Workers Union, Local 2590, 8 N L R B. 440 Monies received for work performed upon Federal , State, county , municipal , or other work-relief projects are not considered as earnings , but as provided below in the Order, shall be deducted from the sum due the employee, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State , county, municipal , or other government or governments which supplied the funds for said work-relief projects . Republic Steel Corp. v National Labor Relations Board, 107 F. ( 2d) 472 (C. C. A 3) 51 See footnote 49, supra 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent to offer reinstatement to Taylor and to all the employees, ex- cluding Edgeworth, whom we have found it discriminated against in 1937 and to make them whole for any loss of pay they may have suffered by reason of their lay-offs or discharges by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of the respondent's dis- crimination against him to the date of the offer of reinstatement, less his net earnings 51 during that period. We have found that in 1937 the respondent discriminated in regard to the hire and tenure of its employee, Edgeworth, in that he quit its employ or was dis- charged when he refused to accept a discriminatory transfer. Edge- worth desires to return to his former position of booking or skiving treads in the respondent's plant. In view of the fact that we have found that the respondent discriminated against Edgeworth when it transferred him from tread work to mill work, we shall order the respondent to offer Edgeworth reinstatement to a position of booking or skiving treads or to a substantially equivalent position and to make him whole for any loss of pay he may have suffered by reason of the respondent's discrimination against him by payment to him of a sum of money equal to the amount which he normally would have earned as wages from the date of the respondent's dis- crimination against him to the date of such offer of reinstatement, less his net earnings 52 during that period. ., The Trial Examiner during the hearing excluded evidence offered by the respondent to show monies paid by the United as relief or insurance benefits to some of the employees subsequent to their dis- criminatory discharge or lay-off by the respondent. These.-sums were not paid for work performed by the employees for the United. In accordance with our previous decisions 53 the Trial Examiner's ruling is affirmed, and we shall order that, in computing the amount of back pay to be awarded to any individual under the provisions of this Order, no deduction shall be made for any amount he may have received as relief or insurance benefits from the United during the period for which back pay is due him. We have accepted the statement of the respondent that the lay-offs of Rosebud Howard, L. C. Brown, and E. X. Beauford were. tem- porary, occasioned by a decrease in available work in the plant, and therefore we shall not order their reinstatement. However, in view of the respondent's unfair labor practices as set forth in Section III above, there is grave danger that the respondent will not reemploy these three individuals even if their former or substantially equivalent 63 See footnote 49, supra. 62 See footnote 49, supra. ° Matter of Missouri, Arkansas Coach Lines, Inc. and The Brotherhood of Railway Trainmen, 7 N L. R. B. 186; Matter of West Kentucky Coal Company and United Mine Workers of America, District No. 23, 10 N. L. R. B 88. GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 445 positions are open. In order to effectuate the policies of the Act, we shall require the respondent to place Howard, Brown, and Beauford, for whom.work was not available at the time of the hearing, upon a list of its employees who are temporarily laid off and to offer them employment in the order of their seniority upon the list when employ- ment becomes available and before hiring other persons.54 In amendments made to its answer during the course of the hearing, the respondent set forth reasons why it should not be compelled to reinstate Ted Morgan and Woodrow Kilpatrick. In view of our dismissal of the allegations in the complaint relating to these two employees, we need not consider these amendments. The respondent's amended answer set forth reasons why it should not be compelled to keep Ruth Christopher in its employ. In view of the fact that the respondent had reinstated Ruth Christopher prior to the hearing, and that Christopher was still employed by the respondent at the time of the hearing, we find it unnecessary to consider these reasons here 55 As previously set forth, at the hearing the respondent introduced evidence relating to the writing of an insulting and threatening anonymous note to Foreman Goodall by Parker, an employee whom we have found the respondent discriminatorily discharged in 1937. This note was attached to a rock which was thrown one night at the home of Foreman Bell, who lived next door to Goodall. Although Parker testified twice at the hearing, the respondent at no time ques- tioned him concerning this incident. The only evidence introduced at the hearing linking Parker to this incident was the testimony of a handwriting expert, called as witness for the respondent, to the effect that•the writing on the note attached to the rock was that of Parker. Under these circumstances, we do not believe that this incident is any reason why we should not order the respondent to offer reinstate- ment to Parker. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. The Joint Conference Plan was a labor organization, and United Rubber Workers of America and Etowah Rubber Workers Organi- zation, Inc., are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and adminis- tration of Etowah Rubber Workers Organization, Inc., and contribut- 64 Matter of American Numbering Machine Company and International Association of Machinists, District # 15, 10 N. L. R. B 536, and cases therein cited 55 These reasons, which concerned Christopher's use of profanity , have been discussed previously in connection with her lay-off or discharge in 1936. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing support to it, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employ- ment of F. B. Adams, C. M. Ayres, L. T. Brooks, S. W. Caudle, Ruth Christopher, F. H. DeBerry, Bob Dick, J. D. Doyal, Millard Edgeworth, A. J. Forman, Hugh Garron, L. D. Hayes, C. S. Holmes, K. F. Kenner, O. G. Lake, Edward Ledlow, F. D. Love, Hugh Milam, Zella Morgan, A. J. Parker, Leroy Smith, Clarence Stanford, L. R. Stewart, E. D. Taylor, P. S. Thompson, H. B. Vinyard, and R. B. Woodruff, and thereby discouraging membership in United Rubber Workers of America, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices,,,, within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 6. By discharging or laying off L. C. Brown, E. V. Beauford, Rosebud Howard, D. D. Quinn, W. L. Walker, Ted Morton, L: R. Lasseter, J. G. Woodruff, Hattie Milner, and B. E. Cleveland, and by its actions relating to Woodrow Kilpatrick's leaving its employ, the respondent has not engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respond- ent, Goodyear Tire & Rubber Company of Alabama, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) In any manner dominating or interfering with the adminis- tration of Etowah Rubber Workers Organization, Inc., or the forma- tion or administration of any other labor organization of its employees, and contributing support to Etowah Rubber Workers Organization, Inc., or to any other labor organization of its em- ployees; (b) Recognizing the Etowah Rubber Workers Organization, Inc., as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work; GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 447 (c) Discouraging membership in United Rubber Workers of Amer- ica or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tehure^of employment or any terms or conditions of their employment because of membership in or activity in connection with any such labor organization; (d) Permitting, encouraging, or participating in physical assaults on, or threats of physical violence to, employees in its plant for the purpose of discouraging membership in, or activities on behalf of, United Rubber Workers of America, or any other labor organization; (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid and protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: '(a) Withdraw all recognition from Etowah Rubber Workers Organization, Inc., as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work, and completely disestablish Etowah Rubber Workers Organ- ization, Inc., as such representative; (b) Afford all its employees reasonable protection in its plant at all times,from physical assaults or threats of physical violence directed at discouraging membership in, or activities on behalf of, United Rubber Workers of America, or any other labor organization; (c) Instruct all its employees in its plant that physical assaults or threats of physical violence directed at discouraging membership in, or activities on behalf of, United Rubber Workers of America, or any other labor organization, will not be permitted in the plant at any time; and take effective action to enforce this rule; (d) Prohibit any member of the flying squadron (1) interfering with, restraining, or coercing its production employees in the exercise of their rights to self-organization, to form, join, or assist labor organ- izations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection, and (2) par- ticipating in the formation,, administration, or,. activities of, any labor organization of its production employees; and take effective action to enforce this prohibition; (e) Offer to C. M. Ayres, L. T. Brooks, Bob Dick, A. J. Forman, Hugh Garron, A. J: Parker, Leroy Smith, Clarence Stanford, E. D. Taylor, P. S. Thompson, H. B. Vinyard, and R. B. Woodruff, immedi- 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ate and full reinstatement to their former positions or to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed by them; and offer to Millard Edgeworth immediate and full reinstatement to his former position of booking or skiving treads, or a substantially equivalent position, without prejudice to his seniority or other rights and privileges pre- viously enjoyed by him ; ''(f) Make whole the individuals enumerated in paragraph 2 (e) of this Order, for' any loss of pay they may have suffered by reason of the respondent's discrimination in regard to their hire and tenure of employment by payment to each of them of a sum of money equal to the amount which each normally would have earned as wages dur- ing the period from the date of such discrimination to the date of such,offer of reinstatement, less his'net earnings 56 during such period, but not deducting any amounts he may have received during such period'from United Rubber Workers of America; provided that the respondent shall deduct from the amount otherwise due to each' of the said individuals a sum equal to that received by him for work per- formed.upon Federal, State, county, municipal, or other work-relief projects during the period for which back pay is due him under this Order, and shall pay any such amount deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work- relief projects; ' (g) Make whole F. B. Adams, S. W. Caudle, Ruth Christopher, F. H. DeBerry, J. D. Doyal, L. D. Hayes, C. S. Holmes, K. F. Keener, O. G. Lake, Edward Ledlow, F. D. Love, Hugh Milam, Zella Morgan, and L. R. Stewart, for any loss, of pay they may have suffered by reason of the respondent's discrimination in regard to their hire and tenure of employment by payment to each of them of a sum of money equal to the amount which each normally would have earned as wages during the period from the date of such discrimination in June or July 1936 to, except in the case of J. D. Doyal, the date when each was offered reinstatement in 1937 by the respondent, and, in the case of'Doya'l, the date of his obtaining the employment he had at the time of the hearing, less the net earnings 56 of each of them dur- ing said period, but not deducting any amounts each may have re- ceived during said period from United Rubber Workers of America; provided that the respondent shall deduct from the amount otherwise due'to,each of the aforesaid individuals a sum equal to that received by him for work performed upon Federal, State, county, municipal, or other work-relief projects during the period for which back pay is due him under the terms of this Order, and shall pay any such 16 See footnote 49, supra. GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA 449 amount deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (h) Place Rosebud Howard, L. C. Brown, and E. V. Beauford, on a list of employees temporarily laid off and offer them employment in the order of their seniority, on this list when employment becomes available and before hiring other persons; (i) Post immediately in conspicuous places throughout its plant notices to its employees stating: (1) that the respondent will cease and desist as provided in paragraphs, 1 (a) ;. (b), (c), (d), and (e) of this Order; (2) that the re$pondent,hastaken, the, affirmative ac- tion required by paragraph 2 (a),and will take the affirmative action required by paragraphs 2 (b), (e), (f), (g), and (h) of this Order; and (3) that the respondent's employees are free to become or re- main members of United Rubber Workers of America, and that the respondent will not discriminate against any employee because of membership in that organization; (j) Maintain such notices for a period of at least sixty (60) con- secutive days from the date of posting; (k) Notify the Regional Director for the Tenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, in so far as it al- leges that the respondent has, discriminated- in -regard to the hire and tenure of employment of Rosebud Howard, L. C. Brown, E. V. Beauford, D. D. Quinn, Ted Morton, Hattie Milner, B. E. Cleve land, Woodrow Kilpatrick, J. G. Woodruff, W. L. Walker, and L. R. Lasseter; that the respondent caused United officers and organizers to be afforded insufficient protection from violence and. assault in Gadsden; that since April 1, 1937, the respondent encouraged, spon- sored, and acquiesced in a series of acts of terrorism directed against United members and members of other labor unions; and that at various times in 1937, by its agents the respondent administered beatings to H. C. Adams, B. E. Cleveland, E. F. White, and' J. O. Glenn, attempted to assault B. T. Garner, held a meeting to plan violence to United organizers, caused a United member to be as- saulted by other employees because of a speech by him in further- ance of the United, and wrecked an automobile occupied by three United members and threatened them with a shot gun; be, and it hereby is, dismissed. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.