A. O. Smith Corp.

National Labor Relations Board - Board Decisions

Jul 21, 1961

132 N.L.R.B. 339 (N.L.R.B. 1961)

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