Communications Workers of America

National Labor Relations Board - Board Decisions

May 1, 1958

120 N.L.R.B. 684 (N.L.R.B. 1958)

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