Standard Oil Co.

III the Matter Of STANDARD OIL COMPANY, AN OHIO CORPORATION, SOHIO PIPE LINE CORPORATION, LATONIA REFINING CORPORATION and OIL WORKERS INTERNATIONAL UNION' (CIO), AND OIL WORKERS INTERNATIONAL UNION, LOCAL. 346 (CIO) and ASSOCIATION OF PETROLEUM WORKERS OF THE STANDARD OIL COMPANY OF OHIO Case No. C-2420.Decided February 15, 19,¢3 Jurisdiction : oil producing and refining industry. Unfair Labor Practices Interference, Restraint, and Coercion: encouraging membership in "inside" organi- zation and discouraging membership in affiliated organization Company-Dontiinated Unions : employee representation plan formed and sup- ported by employer prior to Act and continuing thereafter without disappro- val by employer; successor organization formed in the absence of cleavage from predecessor dominated plan, and supported by financial aid and grant of virtual recognition although formal recognition was withheld-prior certi- fication of organization, found not to preclude finding of domination. Discrimination: charges of, dismissed. Remedial Orders : cease and desist unfair labor practices, successor dominated organization disestablished, and contracts therewith abrogated. DECISION AND ORDER On November 16, 1942,,the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that Standard Oil Company; an Ohio Corporation, Sohio Pipe Line Corporation, and Latonia Refining Corporation, herein called 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 out in the copy of the Intermediate Report attached hereto. Thereafter the respondents, Association of Petro- leum Workers of the Standard Oil Company of Ohio, herein called the Association, Oil Workers International Union (CIO), and Oil Workers International Union, Local 346 (CIO), herein jointly called the Union, filed exceptions to the Intermediate Report and briefs in support of the exceptions. Oral argument, in which the respond- ents, the Association, and the Union participated, was had before the Board on January 21, 1943. The Board has considered the rulings 47 N. L. R. B., No. 74. 517 518 DEC'TSSON'S OF NATIONAL LABOR RELATIONS BOARD of the Trial Examiner at the hearing and finds that no prejudicial' error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial -Examiner.' ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondents, Standard Oil Company, an Ohio Corporation, Sohio Pipe Line Corporation, and Latonia Refining Corporation, their officers, agents, successors, and assigns, shall: 1. Cease and desist, from : - (a) Dominating or interfering with the administration of Asso- ciation of Petroleum Workers of the Standard Oil Company of Ohio, or -with the formation or administration of any- other labor organiza- tion and--'from contributing financial or other support to' the said labor organization or to any other labor organization; (b) Recognizing the Association of Petroleum Workers of the Standard Oil Company of Ohio, as the representative of any of their employees for the purpose of dealing with the respondents concerning grievances; labor disputes, wages, rates of pay, hours of employment, ,'or other conditions of employment;/ - (c) Giving effect to each and every contract with the Association of Petroleum Workers of the Standard Oil Company of Ohio or any chapter thereof, or to any modification, extension; supplement, or renewal thereof, or to any superseding contract with it; (d) In any other manner interfering with, restraining, or coercing their employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations; to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining, or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take' the following affirmative action, which the Board finds will effectuate the policies, of the Act : (a) Withdraw all recognition from and completely disestablish Association of Petroleum Workers of the Standard Oil Company of Ohio, as the representative of any of their employees for the purpose -of dealing with the respondents concerning grievances, labor dis- r I At page , 31, line 5, of the Intermediate Report the Trial Examiner inadvertently set forth the date October 1941. We find the date to be October 1940 Another inadver- tence appears at page 37, line 8, of the Intermediate Report in the date September 5, 1942.' This date we find to be Septembei 5, 1941. 1) STANDARD OIL COMPANY, AN OHIO CORPORATION, 519 pates, wages, rates of pay, hours 'of employment, or other conditions of employment at all of their plants and operations; (b) Post immediately, in conspicuous places throughout their various plants and operations, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to their employees stating: (1) that the respondents will not engage in the conduct from which it is ordered that they cease and desist ' in paragraphs -1 (a), (b), (c) and (d) of this %Orde (2) that the respondents will take the affirmative action set forth in paragraph 2 (a) of this Order; and (3) that the respondents' employees are free to become or remain members of Oil Workers International Union, affiliated with the Congress of Industrial Organizations, and Oil Workers International Union, Local 346, affiliated with the Congress of• Industrial Organizations, and that the respondents will not dis- criminate against any employee because of membership in or activity` on behalf of these organizations; (c) Notify the Regional Director for the Eighth Region in writ- ing, within ten (10) days from the date of this Order, what steps the respondents have taken to comply herewith. AND IT FURTHER ORDERED that the eop_!plalnt be dismissed insofar as it alleges that the respondent, Standard Oil Company, an Ohio Corporation, has engaged in unfair labor practices by discharging William Philpott on or about May 1, 1941. INTERMEDIATE REPORT Mr. Max 11'. Johnstone, for the Board • McAfee, Grossman, iHarming ct Newcomer; by Maurice F. Henning and James R Tr,tschlei, of Cleveland, Ohio, for the respondents Lowell Gocitich, and B J. Rickey, of Toledo, Ohio, for the Union. R C Ragan, of Toledo, Ohio, for the Association. STATEMENT OF THE CASE Upon a second amended charge, duly filed on August 5, 1942,-by Oil Workers International Union (CIO) and Oil Workers International Union, Local 346 (CIO) herein jointly called the Union, the National Labor Relations Board, berem• called the Board, by the Regional Director for the Eighth Region (Cleveland, Ohio), issued its amended complaint' dated August 8, 1942, against Standard Oil Company, an Ohio corporation, Sohio Pipe Line Corporation, and Latonia Refining Corporation, herein jointly called the respondents, and sev- erally, the respondent Standard, the respondent Sohio, and the respondent Latonia, alleging that the respondents had engaged in and were engaging in unfair labor practices within the ineaning of Section 8 (1), (2), and (3) and 'Section 2 (6), and (7) of the National Labor Relations Act, 49 Stat• 449, herein called the- Act Copies of the amended complaint, accompanied by notice of hearing, were duly served upon the respondents, the Union and Association 1 The original complaint was issued July 27, 1942, upon an amended charge duly filed by the Union on July 23, 19-12. 1 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Petroleum Workers of the Standard Oil Company of Ohio, heiein called the Association. In respect to the unfair labor practices, the amended complaint as further _ amended at the hearing, alleged in substance that (1) in 1933 the respondent Standard established among employees throughout its system the Sohio Council Plan, a labor organization, and dominated and furnished active support to the said labor organization during its entire existence, (2) in April 1937, established the Association, and thereafter through its officers and agents and through its subsidiaries, the respondent Sohio and the respondent Latonia, maintained and dominated, and furnished' support to said Association ; (3) encouraged member- ship in the Association and discouraged membership in the Union through various acts and statements of its supervisory off,-ials; (4) discharged William Philpott on or about May 1, 1941, because of concerted or union activity The respondents filed an- answer denying that they had engaged in any of the alleged `unfair labor practices though admitting that certain bargaining contracts were executed by,the respondents and the Association following the, certification of the Asso- ciation by the Board as a result of pertain elections. The Association during the course of .the hearing filed an answer denying that the Association was formed, dominated or assisted by the respondents Pursuant to notice, a hearing was held fioin September 3, 1942, through Sep- tember 30, 1942, at Cleveland, Ohio, and at Toledo, Ohio, before the undersigned, the Trial Examiner duly designated by the Acting Chief Trial Examiner. All parties were represented by counsel and participated in the hearing. Full oppor-, tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties At the opening of the hearing, a petition) filed prior to the hearing by the Association with the Regional Director and the Board, for a stay of the pro-' ceeding, was denied, as was the Association's motion to dismiss the complaint. A motion by the respondents to dismiss the complaint was also denied During the presentation of the Board's case, on motion of counsel for the Board, a number of amendments to the complaint were allowed over the objections of the respondents and the Association The parties were advised that if they were unduly surprised by the introduction of matters thus newly alleged in the com- plaint, they might apply for a continuance at the close of the Board's case Pursuant thereto, on motion of ^lie respondents, a continuance was granted from September 15, 1942, to September 21, 1942 At the close of the Board's case the undersigned granted without objection a motion by the respondents to dismiss an allegation of the complaint that Ladd, a supervisor of the respondent Standard, called a member of the Union a deroga- tory name. The undersigned denied other motions of the respondents 'to dismiss the complaint in its entirety and in part, and also denied similar motions of the Association. At the close of the hearing the respondents renewed a motion previ- ously made and upon which ruling was reserved to strike all testimony of R D. Hershman, an Association witness, relating to a Suggestion Committee. Ruling was reserved on the motion/and it is hereby granted. At the close of the hearing, both the respondents and the Association renewed their respective motions to dismiss the complaint in its entirety, and in the alternative, to dismiss certain specified allegations of the complaint. Ruling was reserved thereon and the motions are hereby denied except as they are otherwise disposed of under the recommendations of this Report. Near the conclusion of the hearing, the undersigned granted, without objection, a motion by counsel for the Board to conform the pleadings to the proof. At the conclusion of the hearing, the parties were afforded an opportunity to argue orally before, and to file briefs STANDARD OIL COMPANY, AN OHIO CORPORATION 521 1 with, the undersigned. Oral argument was presented by counsel for the Board, the respondents,and' the Association The respondents, the Association and the Union thereafter filed briefs with the undersigned. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF-FACT I THE BUSINESS OF TIIE RFSPONDENTS Standard Oil Company, an Ohio Corporation, was incorporated about 1870. Its principal offices are located at Cleveland, Ohio. It is engaged in all branches of the oil industry, including producing, transporting, refining and marketing of gasoline, oil, kerosene, motor oils and industrial lubricants, asphalt, road and fuel oil. It opeiates refineries at Cleveland, Ohio, Toledo, Ohio, Lima, Ohio, and through a subsidiary, the Latonia Refining Corporation, at Latonia, Kentucky. I Latonia Refining Corporation is an Ohio corporation and a wholly owned subsidiary,of the respondent Standard It operates a refinery for the process- ing of gasoline at Latonia, Kentucky.- In the year 1941, the respondents Standard and Latonia produced and mar- keted' refinery products of a value in excess of $76,740,000. Approximately 8 percent in value of finished products produced and marketed by the respondent Standard, were shipped outside the State of Ohio. Of the $9,576,000 in value of finished products produced and marketed by the'respondent Latonia during the same period, approximately 100 percent were disposed of outside the State of Kentucky. Sohio Pipe Line Corporation is a Delaware corporation, and is a wholly owned subsidiary of the respondent Standard. It operates main trunk pipe lines from Salem, Illinois, eastward to Lima, Ohio, and from Mt. Pleasant, Michigan, to Toledo, Ohio, for the transportation of crude oil. During the year 1941, it transported in its main trunk lines approximately 43,276,000 barrels of crude oil. 76 percent of such crude oil was transported across State lines.' The respondents adini0that they are engaged in commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED Oil Workers International Union is a labor organization affiliated with the Congress of ^Industiial Organizations, admitting to membership employees of the petroleum industry Local 346 of Oil Workers International Union admits to membership employees of the Petroleum industry in the vicinity of Todelo, Ohio. Association of Petroleum Workers of the Standard Oil Company of Ohio, is an unaffiliated labor organization admitting to membership employees of the respondents Standard, Sohio and Latonia. III. THE UNFAIR LABOR PRACTICES A. Sohio Council Plan In 1933 the respondent Standard-established throughout its system of opera- tions the Sohio Council flan, called herein the Plan. The object of the Plan, as stated in its constitution (which was "Accepted by the Non-Supervisory 2 These findings are based on a stipulation entered into between counsel for the Board' and counsel for the respondents 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees d *, * by Secret Ballot during the month of July, 1933") was to provide a method whereby employees and management might "discuss all prob- lems of mutual interest, such as * * fl manufacturing and marketing problems ; working conditions, including wages and hours ; safety; sanitation ; social and athletic functions; educational, programs ; sick benefits'; insurance; pensions, etc " Under the Plan Unit Councils were set up in all divisions of the respondent's operations. These Unit Councils were comprised of representatives elected annually by the employees, respectively, of the various units and a not greater number of representatives of management who were appointed by the respon- dent's president. The constitution provided for the establishment of 24 unit councils and at least 22 functioned under tile Plan. The chairman of each Unit Council was appointed by the respondent's president, and the chairman thus appointed designated a secretary whose duty it was to keep minutes of Unit Council meetings. Neither the chairman nor the secretary thus appointed could vote in the proceedings of the Unit Councils The elected representatives of each unit appointed a vice-chairman who acted as chairman in the regular chairman's absence and who was entitled to vote on all occasions. All em- ployees of the respondent except executives, supervisors and their immediate staffs, and outside salesmen, were eligible as voters and as representatives under the Plan In addition to the Unit Councils, the Plan provided also for a Central Council which was comprised of the vice chairmen of the Unit Councils and "a not greater number of management representatives appointed by the President" of the respondent. The Central Council had one. regular meeting each year and additional meetings on petition of the representatives of the Unit Councils or at the "discretion" of the respondent's president. The chairman of the Central Council was designated by the respondent's president, Regular meetings of the Unit Councils were held every two months for the purpose of considering and making recommendations on questions relating to working conditions, wages and hours, and "similar matters of mutual interest to the employees and to the Company." A somewhat elaborate procedure was set up whereby employee grievances which could not be satisfactorily adjusted with the respective supervisors or department heads, were first referred to the Unit Councils and thereafter, if necessary , through the Unit Council to the Central Council` Further provision was made for arbitration in the event of a, deadlock in the Central Council There is no evidence that arbitration was resorted to at any time during the existence of the Plan On March 14, 1935, the Plan was amended. The amended Plan stated that its purpose was "to provide for the employees of The Standard Oil/Company (an Ohio Corporation ) and of its subsidiary companies ' a means of organ- izing and bargaining collectively with the Company through repiesentatives of their own choosing, to be selected as provided in the following Plan. The representatives so selected shall be fully authorized to deal, discuss and bargain .with the Company regarding wages, hours, working conditions and any other matters of mutual interest and to negotiate and enter into agreements with the Company with respect thereto "It was stipulated that the respondent Latonia was incorporated in 1938 and the re- spondent Sohio in 1937. However, since the amended Plan of March, 1935, makes refer- ences to the "subsidiary companies" of the respondent it appears that the respondents Latonia and Sohio were functioning as'separate enlities as of that date, though perhaps. unincorpoiated. STANDARD OIL COMPANY, AN OHIO CORPORATION 523 The plan as amended further provided, inter alia, that the personnel of the Unit Councils should consist solely of representatives elected by the employees of the respective units ° The representatives thus designated chose from among their number a chairman, 'a vice chairman, and a secretary. The Central Council of the Plan as amended, was comprised of the chairman'of the Unit Councils who chose from their number a chairman, a vice chairman, and, a sec etary of the Central Council. The Plan as amended also broadened the functions of the Unit Councils which were now authorized to bargain with the management and make agreements with respect to employees of their respective jurisdictions, and further provided that the bargaining powers thus vested in the Unit Council "may be exercised by such Unit Council dealing separately with, or dealing jointly with the Company, together with one or more of the other Unit Councils, or, by a majority vote of the members of such Unit Council, may be delegated to the Sohio Central Council or to a special committee composed of not less than three members of the Sohio Central Council designated by such Unit Council, in whole or in part and upon such conditions or with such restrictions as to exercise thereof as may be imposed by such vote." Under the Plan as thus constituted, the Unit Councils were semiautonomous bodies, with full authority to bargain and make agreements for employees of their respective jurisdictions It appears from the minutes of the Central Council and from the testimony of the witnesses, that in its practical working, the Unit Council held original jurisdiction of matters of purely local interest, but that where'satisfactory adjustments could not be secured through the Unit Councils, such matters were referred to the Central Council for further attemps at settle- ment. The Central Council also appears to nave exercised bargaining rights on matters of the respondents' general or overall policy affecting entire divisions of the respondents' operations, or matters common to all the respondents' employees. Participation of employees in the Plan was voluntary, no formal membership being -provided and no clues collected The, respondents Standard and Latoma provided meeting places, for both the Unit and Central Councils of company premises and company time; paid the traveling expenses of representatives attend- ing meetings of the Central'Council; bore all incidental expense of the operation of the Plan such as stenographic services, stationery, mimeographing and postage. Elections of Council representatives were held on company propel ty and company time. No deduction was made in the wage of representatives for time spent in attending meetings of the Councils. In short, the respondents bore the entire expense involved in the operation of the Plan. , The Plan functioned continuously front the date of its formation by the respondent Standard in 1933 until a date in April, 1937, subsequent to the decisions of the Supreme Court upholding the constitutionality of the Act B 77ac Association 1. Its inception On April 8, 1937, the regular annual meeting of the Central Council of the Plan was convened in Cleveland This meeting was attended by the chairmen of 22 Unit Councils which had been established under the Plan Following the adoption of a motion to have a "Working Agreement drawn up by the 1 , I The Plan as amended provided for Unit Councils for "each of the Silos Divisions, for each of the Refineries , for the Cleveland\Automotive Shop, for the Home Office, for the Sales Accounting Office, and for the Lithograph Call Factory and the Print Shop combined " The number of representatives composing the Unit Councils varied according to the size of the unit, each unit being divided into voting districts. - 524, . DECISIONS OF NATIONAL LABOR RELATIONS BOARD Central Council," there was an election of officers, H II McCowen, chairman of the Latonia '(Kentucky) Refinery Unit Council, was elected chairman of the Central Council "by, acclamation." 1\IcCowen had previously served as chair- man of the ni:uiiifacturing division of the Central Council and as its'vice chair- man' G. L. Hilton, chairman of the Number 2 Refinery (Cleveland) Unit Coun- cil was elected vice-president, and K C. Schumacher, chairman of the Home Office Unit Council, was elected secretary. ' Following the election of officers the Central Council was addressed by W. P. Edmunds, the respondents' manager of industrial relations," and A M. Maxwell, a vice president of the respondent Standard. Edmunds again addressed the Central Council on the-following day. The minutes of,this meeting give very little detail of statements made by Edmunds and Maxwell, but several witnesses testified and Edmunds admitted, that the future of the Plan in the event the Act was held to be constitutional, was discussed at one or both of these meetings. According to Edmunds, in reply to questions, he stated that he 'had no debate" in his own mind, "that if that [the Act] were upheld by the Supreme Court, that the Sohio Council was entirely out." Charles Mendick, a Board witness who attended the April 8, 9 meetings as chairman of the NuniberiI Refinery (Cleveland) Unit Council, testified that Edmunds advised the Central Council that in the event the Act was held to be constitutional, they should "get the boys together" and the com- pany would "kick in about $50,000 " Edmunds denied the statements attributed to him by Mendick, and witnesses for the Association who attended the April S. 9 meetings, also denied that Ediuunds made these statements In view of the lack,of corroboration of Mendick's testimony and the cautious policy which marked the respondents' attitude on the Plan during this period, the under- signed is persuaded and finds that Edmunds did not make the statements attributed to him by Mendick It is clear, however, from all the testimony, that there was much concern over the future of_the Plan evidenced in the meeting of April 8, 9, and that both the respondents and the council chairman-expressed the opinion that the Plan as it was then constituted could not continue to function if the Act was declared constitutional. It is entirely likely that alternatives to the Plan which would meet the requirements of the Act were discussed at this meeting, but, in the opinion of the undersigned, the evidence fails to establish that at this time Edmunds expressly directed or encouraged the Central Council to form a successor organization On April 12, 1937, the Supreme Court's decisions removed all doubt of the Act's constitutionality. Nevertheless,' the Plan did not cease thereupon to function although its illegality under the Act was freely admitted by the respondents. The minutes of the April 8, 9, meeting were mailed to the unit chairmen under date of April 21, with a covering letter over the signature of Schumacher, as secretary, which requested the unit chairmen to advise the aMcCowen resigned from the Association in April, 1939, and thereafter was promoted to a position in the respondents ' industrial relations divisions , and as a representative of management met with the Association. "Edmunds when questioned whether his position as manager of industrial relations ex- tended to the respondents Latonia and Sohio, testified : "Yes, I wouldn't know whether they were separate. The Latonia Refinery is like any other refinery so far as I am con- cerned, and the Pipe Line [Sohio] the same" The undersigned on the basis of this and other testimony fonds that labor relations of the respondents, Standard , Latonia and Sohio, were centrally controlled and directed through the respondent Standard All findings on issues of support and domination of the Plan and of the Association are therefore made with reference to each of the respondents, whether specifically named as such or not, except sub-section 5 of this Report which relates solely to the Toledo Refinery of the respondent Standard. STANDARD OIL COMPANY AN OHIO CORPORATION 525 secretary of any, changes due to elections "so that a new corrected list of unit chairmen may be sent to all unit councils," and closed with the following sentence : "For this secretary to operate efficiently it will be important that any errors or omissions are called to' hs attention." On or about April 19, McCo1wen visited the Number I refinery, Cleveland and, according to his testimony, called on E. A. Brown, superintendent, of the refinery and conferred with him on a list of grievances concerning employees of that refinery. McCowen testified that the representatives of this unit had been having some difficulty with Brown, and that "the Council wasn't getting anywhere." After meeting with Brown and representatives, of the Plan of the local unit, McCowen attempted during lunch recess to discuss certain matters with the men. McCowen testified : ". . . I undertook to try to tell them that I was representing the Council and that I was there for the purpose of trying to get things smoothed out." McCowen further testified : "I said : The Council hasn't been functioning out here and I am trying to see what will function." The, men refused to listen to McCoven on' their own time, and Brown gave him permission to address the men' at the close of the lunch recess on company time Brown was present but did not participate in these discussions. Following his attempts to address the employees, McCowen and the representatives met with Brown and negotiated an agreement covering the employees of the unit This agreement, which was dated April 19, 1937, was headed: - At the meeting this day between the undersigned, recognized representa- tives of the employees of No I Works Refinery, The Standard Oil Com- pany (Ohio), and the management, the following agreement has been entered into effective immediately : The agreement covered a variety of subjects including such matters, as sen- iority, staring time for work, quitting time, clean-up work in process 'depart- ments, and individual grievances It was 'signed by McCowen and the unit representatives under the Plan, and by E A. Brown. There is conflict in the testimony concerning the tenor of McCowen's remarks to the employees McCowen denied that he discussed the Association. Mirko Debevic, a Board witness and an employee of the Number I.refinery, testified, however, that MCCowen and-Al Euse, the latter a representative under the Plan, spoke to the employees about a new organization; "they were trying to point out to the boys to start this new-I mean this Association of Petro- leum Workers. They didn't name it with that, name, but they said to start this new group" According to Deebevic, ". . . Al Euse and -McCowen and the boys got into a severe argument there on the things; in other words, the boys wanted to join the Oil Workers International Union and they were talking about this other organization ; they said they had enough of, it, because, they had plenty experience with the Sohio Council and they didn't want to have the same thing continued." In view of McCowen's admission that his remarks caused so much confusion that he "couldn't get anywhere", his testimony that lie told the men, "The Council hasn't been functioning out here and I am trying to see what will function," and the convincing character of Debevic's testimony, the undersigned finds that McCowen visited the Number I Refinery for the pur lose of persuading the men to go along with the new organization which leaders of the Plan were then con- sidering as a successor to the Plan, and that he encountered opposition due to the fact that certain of the men had at that time decided to affiliate with the Union Debevie's testimony concerning the Union is corroborated by the fact that a charter was issued the employees of this refinery by the Union on April 23. I 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On1April 20, Brown was removed as superintendent, of the Number I Refinery lind'was tiansferred'to work as' a construction 'engineer 'in a division of the respondents' operations remote from the Number I Refinery ' The 'respondents dduce the fact of Brown's removal as evidence of disapproval of his action in 1,cimitting Council Representatives to, address the employees on company time add the'ir' reement which 'he approved with these same representatives: There is ilo evidence, however,'that the respondents published the cause of Brown's removal to the employees of the Number I Refinery either orally or in-writing, abrogated the agreement he had made with Council representatives, or otherwise publicly disavowed his aforesaid acts. - On April 21, there was a meeting of the Council Units of the Cleveland area, in Cleveland Seien Unit chairmen were present at this meeting, including McCowen, chairman of the Central Council, who called the meeting to order. As stated in Schumacher's report of the meeting, addressed to all unit chairmen of the Plan, this meeting was held "for the purpose of discussing and suggesting changes in the Sohio Council plan." The two major' subjects discussed at this meeting were "financial support and the name of the council." The following motions were adopted at this meeting: 1. "That suggestion be made to each unit council to have the unit council secretaries act as temporary treasurers." 2. ",Suggest that the Sohio Council Plan be adopted as a basis for a new plan." 3. "Suggest that the words, Standard Oil, Sohio and Council be omitted from the name of the new plan." 'During the course of the April 21 meeting, McCowen received a telephone mes- sage "to the effect that the company was withdrawing their financial support to the plan " It is further stated in the minutes' that the chairman "wished to emphasize the fact that these motions were merely suggestions to the various .unit councils and hoped that they would be viewed in this manner " , Ui,der (late of April 22, Maxwell who in addition to being a vice president of ,the respondent Standard was director of sales, addressed a letter to McCowen, in which he stated, inter alia, that the Act having been declared constitutional and the company wishing to abide "strictly by the letter" of the Act, Hereafter, any and all,actiiities of the Council Plan or any other labor organization in our company must be financed entirely by the members if the law is to be complied with. This means that meetings of the Unit Councils and the-Central Council and any other activities of your organization will, hereafter have to be conducted on your own time and not on the company's tinge, except,that meetings of your representatives with the management may continue to be conducted upon the company's time. This letter 7 purporting to withdraw the respondents' financial support of the Plan, "or any other labor organization in our company," did not in any other respect require the abandonment of the Plan as a functioning organization It, in fact, contemplated the Plan's continuance; the inference being' plain that the' respondents would continue to meet with the Plan's representatives. That.the letter was so understood by the Council Unit chairmen, is,evidenced ^y a letter which M.Cowen on April 26 addressed to all unit chairmen of the Plan, and in 7 The respondents also introduced several newspaper clippings in evidence These ai titles appealed in The Cleveland Press, Toledo Blade and The Enquirer of Cincinnati, Ohio on April 29, 30, and April 30 respectively. The general tenor of these articles was that the respondents were withdrawing financial support from the Plan or otherwise abandoning it STANDARD OIL COMPANY, AN OHIO CORPORATION 527 which he enclosed copies of the Maxwell• letter of April 22. The McCowen letter stated As far as I am, able to learn from a study of the, Wagner Net, the only effect the Wagner Labor Act has on the Sohio Council Plan is-stated in this letter [the Maxwell letter]. The McCowen letter of April 26 suggested methods by which the expense of the Plan could be borne by its employee members and further stated:' It will probably be better to amend the Council Plan to meet the present conditions such as providing for the handling of funds .. I firmly beli eve the fundamental principles of collective bargaining are`now contained in•the Sohio Council Plan and that it will not be difficult to amend the details to meet any serious objections. On April 28, 29, there were further meetings of the Central Council At the April 28 iveetmg, copies of Maxwell's letter of April 22 were passed to each, of the unit chairmen present As stated in • the minutes of this meeting, ' a "Vote was taken to secure viewpoint of members whether to continue with Council Plan " Motions were adopted that "funds, for each unit be handled by a,member designated by the unit councils affected," and "that a new name be given the Plan." Several names were proposed and voted on with the result that the name chosen was, "Association of Petroleum Workers of the Standard Oil Company of Ohio " A motion was then passed by unanimous vote that membership cards in the Association "be printed immediately for distribution before the adjourn- ment of conference Edmunds and William A. McAfee, the latter a member of the firm of the respondents' general counsel, addressed the meeting of April 28 Edmunds testi- fied- that he was questioned about the effect of the Act` on the Plan and that he stated "the Sohio Council Plan was entirely out as far as Management was concerned " Edmunds further testified that he was "asked about clues" and that he replied "that wasn't the Company's business, that it wasn't for the Company to discuss or even look at" McAfee testified that he gave a brief outline of the major portions of the Wagner Act. Both Edmunds and McAfee, denied that there was discussion of revision of the Plan to meet the requirements of the vAct, or of a new organization to supersede the Plan, in their presence, or that they offered any advice with reference to such matters. McCowan testified conceuung the meeting of April 28: "that was the main purpose of the meeting, to advise them that the Sohio Council was finished. That the Company could not, and would not, contribute to the support of the Council in any way" McCowiun further testified that Edmunds in his remarks stated that the Plan was "done for, it was finished " Other association witnesses testified similarly It is clear, however, that the rernarks-of neither Edmunds nor McAfee con- veyed to the Central Council the understanding that the Plan could not continue ,to function with a few minor, changes such as the proposed change in name, and despite the respondents' withdrawal of financial support This is evidenced by the fact that the meeting of the Central Council was continued on the follow- ing clay, and by a letter addressed ,by McCowen to Maxwell under date of April 29. The minutes of the April 29 meeting disclose that Maxwell's letter to McCowen of April 22, afforded the basis for further discussion A motion _was then car- ried unanimously that McCowen "be given authority to answer "I the letter of Mr Maxwell's with the letter just drafted and read" Following discussion it 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was decided to elect "a treasurer of the Central Association"' and A. H. Humphrey, chairman of the Sales Accounting Office Unit of the Plan, was elected treasurer. There followed a discussion of dues, and it was -suggested that monthly dues to be set by the local units should riot.exceed^50 cents a month for each employee. A motion was then passed that a per capifa tax of 5 cents for each employee member be assessed as, a contribution by the respective units to the "Central Association", the dues to become affective May 1. The minutes further state that membership cards were passed out to each member. Unit designations were "suggested" by numbering from 1 to 22 the various opei,ations of the respondents which were then represented by unit chairmen under the flan. The units thus numbered were identical with units existing under the Plan The letter addressed to Maxwell by McCowen as approved in the meeting of April 29, stated. This will acknowledge receipt of your letter of April 22nd referring to payment of certain expenses in connection with the operation of the Sohio Council Plan. We, too,`wish and intend to abide strictly` by the letter and spirit of the Wagner Act so therefore have arranged for expenses through collection of dues.' Further, in accordance with the Wagner Labor Act, Section 9, you will recognize that this organization is the exclusive representation of all the employees of the Standard Oil Company of Ohio and of its subsidiary companies for the purpose of collective bargaining The McCowen letter continued by requesting a bargaining conference and suggested, subjects for discussion at such a conference, including such matters as: Seniority right of employees, grants of vacations with pay, a 10 percent increase in all wages and salaries, elimination or reduction of Sunday work. Regarding the letter-of April 29, McCowen testified: "I realized I kind of got ahead- of myself with all the- enthusiasm about the organization in the room there, and the men seemed to think it was in the bag; we were going to have it, so I just told Mr Maxwell, or referred to it as existing. We were so sure that we were going to organize." McCowen further testified: "The main thing was to put him [Maxwell] on notice that we, as employes, were going to try to have some form of collective bargaining and to acknowledge receipt of this letter that-he had sent us' * * *" ' Thistesfimonv. given some 5 years subsequent to the event, is not consistent with and has not the probative weight of the letter written at the time of the y event This letter indicates clearly that by "arranging for expenses through col- lection of dues, the council chairman considered that the Plan, or the "Associa- tion',' as it was now called, conformed to the requirements of the Act The letter treats the-organization as it was then constituted as a fait acconipit and requests a bargaining conference on a series of definitely stated subjects On June X10, llcCowen as acting chairman of the Association addressed a letter to W T Holliday, the respondent's president. This letter stated that the employees had organized under the name of The Association of Petroleum Workers of the Standard Oil Company of Ohio for the purpose of collective bargaining, and that their chosen representatives desires to meet with repre- s Thus the minutes of the April 29 meeting of the Central Council refer to the Asso- ciation as distinguished fiom the Plan V Italics supplied by the undersigned 1 STANDARD OIL COMPANY, AN OHIO CORPORATION 529 sentatives of management for the purpose of negotiating an agreement on ten stated subjects. These "subjects" were almost identical with the topics pro- posed for discussion-in McCowen's prior letter of April 29., On June 15, George L. Hilton, asrCliairman ofhthe Number 2-Refinefy •'( Cleveland ) Unit of ' the Ass( ciation, - addressed a letter to Holliday requesting a conference and recognition of the Association as exclusive bargaining representatives of employees of the Number 2 refinery . On June 17, Holliday replied to Hilton's letter suggesting that inasmuch as McCowen had' requested a meeting with representatives of the entire Association , that meetings with "local chapters of that association" be - ,,held in abeyance until after the general meeting. "Undoubtedly," Holliday wrote, "at that general meeting the matter of local meetings will be considered " McCowen as acting chairman of the Association sent a memorandum "TO ALL CHAPTER CHAIRMEN" of the Association, advising them that Holliday had agreed to "meet with all chairmen of chapters that are organized at the Hotel Cleveland on Thursday, June 24th * * *" The inemoranduni further stated : These chairmen will meet without management at the Hotel Cleveland on Wednesday; June 23d, at 9 A. M, in the preparation for the joint confer- ence the following day. Pursuant to this memorandum the first formal meeting of the Association was held,in Cleveland on June 23, 1937. 2. Formation of chapters The organizational structure of the Association proposed in the meeting of the Central Council on April 28, 29, 1937, was substantially adhered to and followed closely the structure of the Plain The units which had been represented by Unit Councils under the flan, weie represented in the Association by Chap- ters, and, the Association was successful in setting up chapters throughout'the operations of the respondents Standard, Sohio, and Latonia 10 The chapters of the Association thus established represented the various divisions and operations of the respondents, and each was a semi-autonomous body. Each chapter chose from its members its own officei s which consisted of a chairman, a vice chairman, and a secretary-treasurer; assessed and collected its own clues which varied in amount but in no instance exceeded 50 cents a month. Each chapter had its' own bargaining commit tee composed of the officers of the chapters and, at times, of representatives of different operations in the same unit, in addition to the officers It was the function of these ban gaining committees to meat with the department heads of their respective units for the purpose of negotiation on grievances and matters of local rather than system-wide application In addition to the chapteis, theie was constituted a Central Chapter which perfoimed functions almost identical with the Central Council under 'the Plan. The Central Chapter was composed of the chairman of the various local chap- ters who elected a chairman, a vice chairman, and a secretary-treasurer from among their number, as cfiicers of the Central Chapter. Matters on which the local chapters were unable to reach an agreement with the respective depart- 10 The undersigned credits the testimony of Association witnesses that the Home Office unit of the Plan lvas at no time organized asva chapter of the Association It further appears that the service station employees of the Cu3ahoga County unit of the Plan, while iepresented in the earlier meetings of'time Association, eventually "seceded" from the Association and set up its own organization which was called, The Association of Petro- leum workers, Inc Since this organization theieafter functioned as a separate entity and no allegation in'olving it appears in the complaint, the undersigned makes no findings cenceining The Association of'Petroleum workers, Inc Chapter 13 ceased to function in 1939, and Chapter 15 in 1041 513024-43-vol 47-34 530 DECISIONS 'OF NATIONAL LABOR' RELATIONS^ BOARD ment heads were'referred through the chapter' chairmen to the Central Chapter for further negotiations with the management. The Central Chapter also nego- tiated on matters of system-wide scope. The Central Chapter was supported by a 5-ceiit monthly per capita tax fi'oni each member of the Association in con for mity with the pcoposal'adolited at'the,'April 20, 1937', meeting of the Central Council of the Plan. ' A niaiorit,y of the chapters'of the Asssociiition were formed in May-aitd June 1937. ' The Association offefed testimony purporting to show that the chapters .were oganized as separate bodies and independently of, d ' central or concerted plan, and represented spontaneous 'actiori by employees of the various units who desired a representative for collective bargaining." The undersigned is convinced, howen er, upon consideration of all the testimony, that the chapters which were formed in 'the spring and' summer of 1937 were formed pursuant to plans formulated by unit chairmen in the April, 1937 meetings of the Central Council under the Plan âicCowen testified that following the meeting of April 29, he visited numeions unit chairmen throughout the respond- ents' operations -anti assisted them in.the preliminary organization of the various chapters of the Association. "I know I tried to contact them all," he testified, `,now, whether I was successful or not, I couldn't say " He also testified, "It was my purpose at that time to try to develop a state-wide organization for the employees of The Standard Oil Company of Ohio" and "I used every opportunity available to talk to all of the employees " He denied, however, that any of this activity took place on company time or at company expense, and his testimony in this respect is credited - Inasmuch as the formation of the chapters followed a more or less uniform pattern, it is needless to review in detail the particulars of the formation of each of the chapters upon which evidence was receiv'ed 12 The organization of Chapter No. 20 at the Toledo refinery of the respondent Standard is most fully revealed by the record, and is the archetype of a majority of the chapters in their organizational aspects. Newton Buckle, ivho attended the April 28, 29 meeting of the Central Council of the Plan as unit chairman of the Toledo refinery, testified that at that meeting I J 11 Michael Clemens testified that Chaptei 2 was formed in March 1941 following organ- izatio:il activity by,an "outside" union Accoiding to Clemens the idea of an independent union oiiginaled pith him and he sponsoied the foimation of the oiganzation which later became Chapter 2 Clemens, further testdied' "* * we didn't know how to go about organizing what we called the union, so therefore the sugnestion I made was to get in contact with Mr Hilton, to get a little help on this, to get it going * *- * Mi 'Hilton told me at the time we of ganized that our chapter cculd be known as Chapter 2 " Clemens also admitted that Hilton, ,,lie was at the time secretaiv-treasurer of the Central Chapter .ot the Association, came fioni Cleieland to Canton, Ohio, for the purpose of helping organize Chapter 2, and that membership cards in the Association were supplied by the Central Chapter for the first meeting Albeit Wasdell-testified that Chaptei 4 was started as an independent oigamzation following oiganiiational efforts of an "outside" union. According to WVasdell lie had never heard of the Association at the time, and the oigan- -izational movement sprung iron a suggestion'of Joe Baitunek, a fellow employee, who i emarked • "Why not start up an independent oi ganization "" However, shortly after .st.siting to organize, the employees of this unit decided to of liafe with the Association and there was in fact no formal oigamzation until February, 1938, when Chapter 4 was formed with the assistance of the Central Chaptei of the Association ' It appears from the foregoing that while Chapters 2 and 4 and perhaps other chapters may have been free of company domination in their inception, they soon became identified with the Central Chaptei and therefore must'be considered in the light of the total situation involving the Association. 11 Certain minutes of Chapters 1, 2, 4, 6, 7, 12, 16, 18, 19, 20 of the Association were received in evidence and it was stipulated by the parties that these minutes were repte-' .sentative of all chapters of the Association STANDARD OIL COMPANY ^ AN OHIO CORPORATION 531 it was decided to "go back to our respective divisions and sort of-sound out the employes." Shortly after returning to Toledo from the meeting of the,Central -Council in Cleveland, Bickle and other representatives of the Toledo unit, were .summoned to a meeting with J R Middleton who was at that time superintendent of the Toledo refinery. At this meeting, Middleton read or discussed a letter which he had received from Edmunds under date of May 6, 1937. This letter stated : The company will, not pay any expenses connected with the conducting of any labor organization. No travelling expenses will be paid No employees will receive pay for time spent 'in union activities. No clerical work will be done for a union organization nor will such organizations be permitted to use company buildings for their meetings. The only time the company will pay union representatives their wages for work connected with the union is when, risen representing, such organizations are meeting With management. This combined meeting with management must never be used as a subterfuge to reimburse employees for work done for their union. Traveling expenses of union representatives attending such combined meetings will not be paid by the-company.13 Middleton testified that lie called this meeting with the unit representatives of the Pfan to explain the company's attitude as expressed in the Edmunds letter. Harvey Failor, who was one of the representatives present at this con- terence, testified that Middleton stated that the Plan was "out" and that the men should form a new, organization, and gave them permission to canvass for remembers, Middleton denied that lie discussed the formation of a new organiza- tion with the Plan representatives on this occasion or gave them permission to solicit membership on company property. Buckle and Lindsey` Shields, the latter also a unit representative under the flan, made similar denials of the Failor testimony. However, it is not denied that on, the same day of the meeting of the representatives with Middleton, they began the circulation of Association petitions inside the respondent's plant during.working hours, at the same time collecting dues for the new organization.. In view of this circum- stance and -Middleton' s admission that his recollection of the meeting with the representatives was vague and uncertain, the undersigned is convinced and finds that Middleton encouraged the unit representatives to organize Chapter 20 of the Association and at least impliedly gave them permission to carry on their organizational activity on company premises during working hours This con- clusion is strengthened by the fact that L',ckle, Failor and Shields openly circu- lated the Association petitions in the company's .plant and that Middleton, who must be assumed to have had knowledge of this activity through the respondent's supervisors, permitted it to continue uninterruptedly'" Bickle testified and 11 Under date of May 2,193T, Edmunds addressed a memoiandum to 0 L Brown, assist- ant treasurer, winch stated inter alum "The Sohio Council Plan became non-existent on April 29, 1937 Beginning April 30, the company will not-pay any expenses connected with the conduct of any labor organization " Thine is no evidence that the contents of this letter were cmmmin,rated by Brown to any employee or cioun of r,niulovees- 11 It is the respondents' position that these was no rule prohibiting solicitation of union memberships and collection of dues on company premises during working hours, and that the Union was accoided and exercised the sonic privilege in this respect as did the Asso- ciation Theie is small basis for conipatison, however, since there is no evidence of organ- izational activity by the Union at the time the Association was formed except in the Nunibei 1 refinery at Cleveland where Local 3`05 was foinied in April 1937 Local 316 of the Union appeals to have been foinied at the Toledo refinery in 19-10 or 1941, possibly earlier, but these is no evidence of its activity prior to 1940 The undersigned is of the opinion and finds that memberships in these locals of the Union were solicited and duds collected on company prenn5es during working hours Ilowever, the testimony of both Slendick and Debevic snakes it clear that Local 395 was om ganized in opposition to a con- 532 DECISIONS OF NATIONAL LABOR RELATIONS: BOARD Middleton indicated that during or after the circulation of Association peti- tions, Middleton inquired of Bickle concerning his progress in forming this chapter of the Association. The 'petitions' thus circulated at" the Toledo refinery ' were-blank sheets of ledger paper. Dues of 25 cents were collected from each employee who signed the petition at the time of the signing Approximately 200 names out of a total of some 314 employees eligible for membership in the Association, were secured on the petitions prior to the first meeting of Chapter 20 on May 24. It was the testimony of Bickle, Failor and Shields that in inviting the men to sign the Association petition, they advised them that the Plan was "out" and that they were forming a new organization , and the undersigned finds accordingly: The first meeting of Chapter 20 was publicized by a bulletin posted on the respondent's bulletin board. This bulletin was headed : MEETING OF THE MEMBERS OF THE ASSOCIATION OF PETROLEUM WORKERS OF THE STANDARD OIL CO. OF OHIO. CHAPTER NO. 20 * * * is and stated that the meeting was for the purpose of electing officers. The meeting was held at Dunberger Post Hall, off company property, but the bulle- tin stated that men who were on duty on the 4 to 12 p. in. shift might vote at the clock office "on the way in" Because of this arrangement for voting on company property, Middleton had the bulletins removed and notified Bickle in writing of this action Employees on the 4 to 12 p. in shift did not vote in the clock office, but did vote on company premises which lay outside the plant proper and a short distance from a public road. Since this property lay outside the company gates and was commonly used,for public purposes, the undersigned attributes little significance to the isolated fact of this balloting on premises which technically-at least belonged to the respondent. Bickle presided at the meeting of May, 24 in Dunberger Post Hall as "tem- poruiy chairman" and during the election of officers. The election resulted in Bickic being chosen chairman, Failor, vice chairman ; and Shields, 'secretary- treasurer Only those employees who had signed the Association petitions or membership cards, the latter having been printed pursuant to action taken in the April 28 meeting of the Plan, were eligible to vote in the election.'' tinuance of the Plan in any guise and therefore their organizational activity on company premises could not have represented in the minds of the employees the respondent's ap- proval , the same is true of the organizational activity of Local 346 Furthermore, there is no evidence that any of the organizational activity of the Union on the respondents' premises, was carried on openly and in such manner that the respondents' appioval and consent night reasonably be inferred. It-also appears from the testimony of respondents' witnesses and the undersigned finds that the respondents' policy prohibited the circulation of petitions on company premises, except in non-controversial matters, unless the said pe- titions weie fist appioved by the respondents' officers. These findings relate only to the period prior to Board elections and betore any union had been certified by the Board as b.u gaining representative The undersigned does not credit the testimony of Bickle and Similar, testimony of other Association witnesses, that at the time of the organization of the various chapters in May and June, 1937, no plans had been made for the affiliation of the chapters with a Central Chapter which would be representative of the entire operations of the respondents The minutes of the April 22, and April 28, 29 meetings of the Central Council of the Plan, make it clear beyond doubt that the entire fiainework of the Association was designed\in those meetings which in fact afforded the impetus for the organization of the chapters. 16 It appears that in the organizational meetings of sonic of the chapters , all non-super- visory employees irrespective of their affiliation with the Association, were invited to attend and participate in the election of officers Oral C. Haught testified that he thought STANDARD OIL COMPANY, AN OHIO CORPORATION 533 Following the election of officers, a letter was addressed to Middleton, by Bickle, Failor and Shields, as chairman, vice chairman and secretary-treasurer, re- spectively, which stated : The undersigned being the duly elected and accredited Officers of the recently organized Association of Petroleum Workers of The Standard Oil Co. of Ohio ; Chapter No 20, with a membership of two hundred twenty-five (225) of the Toledo Refinery Employees Respectfully request to, 15e duly' and officially recognized as the sole bargaining agents for your employees on wages, hours and working conditions of and or'any other matters in- volving the interest or well being of the employees. - Middleton replied to this letter stating that he had no authority to extend recognition to the Association, and that he was referring the matter to G- W. Hanneken, the respondent's general manager of, manufacturing. Subsequent developments in bargaining negotiations will be discussed in sub-section 3 iiztra of this report. The organization of other chapters formed at or about the same time, followed with minor variations, the pattern of the Toledo chapter The Unit chairmen under the Plan returning to their respective units after the meeting of the Central Council on April 28, 29, assisted in most instances by the chairmen of the Central Council, solicited Association membership and collected dues, without hindrance from management, on company property during working hours McCowen testified that the method of organizing the chapters of the Association was discussed in the April 28, 29 meetings of the Central Council, and that petitions were then decided upon as an appropriate device for securing membership signatures : "It was proposed that those petitions be used generally../', Testifying concerning his own activity in organizing the Latonia chapter of the Association, McCowen stated : I circulated a petition authorizing me, as a temporary officer, to undertake to organize and I believe they authorized me to * * * represent them in meetings with other employees of the Company and try to develop some such organization." It appears that in some of the chap- ters membership cards which were distributed among.the unit chairmen of the Plan pursuant to the meetings of the Central Council on April 28, 29, were used instead of petitions. Following the circulation of the petitions or cards, meet- ings were called by officers of the Unit Councils under the Plan, respectively, and these officers presided as temporary chairmen 'at-these meetings which were held for the purpose of electing officers of the Association In most in- stances, the officers of the Unit Councils were elected officers of Association chapters" Following the election of officers, a request was made of the local management for recognition of the Association as sole bargaining representa- tive of all non-supervisory employees of the respective unit Seventeen chapters thus organized, were represented by their respective chairmen at the first meeting of the Central Chapter of the Association on all employees below the rank of supervisor were permitted to vote in the election df officers of Chapter 21 Roy Mai shall testified that the organization meeting of Chapter 19 was open to all non-supervisory employees Testimony of Association witnesses also indi- cated that organizational meetings of Chapters 7 and 12 were open to all non-supervisory employees, though the testimony of R D Hershman and 0 R. Coleman, who testified respectively concerning the organization of these two chapters, wasp vague and uncertain on this point. "It was stipulated that at the organizational meeting of Chapter 16, that instead of an election of officers a motion was passed to have the officers and representatives of this unit of the Plan act as temporary officers of Chapter 16 until all election was subsequently held Pursuant to this motion, officers and representatives of the Plan, acted in similar capacity in representing Chapter 16 until Marcli 24,,1933, when an election was held. 534 DECISIONS- OF NATIONAL -LABOR RELATIONS. -BOARD June 23, 24, 25, 1987 Of these 17 chapter chairmen, 14 were Unit Coulicit chairmen under the Plan " , I - 3 Negotiations with management 19 McCowen called the June 23 meeting of the Central Chapter to order and pre- sided as its "acting Chairman " The first order 'of business was the election -of officers McCowen was elected chairman of the Central Chapter, 0 C Dittman, vice-chairman, and G L 'Hilton, secretary-treasurer. The minutes of the June 23 meeting'state : Mr. Holiday's letter was read, calling a joint meeting June 24th, at Cleveland Hotel. A motion was made that the A. P. of W meet as a Central body. Motion passed unanimously. L ' The minutes of this meeting further reveal that "Per capita tax was due and paid by several of the chapters at this time; others promising to send in their checks at once Number of paid members indicate a very strong majority throughout the State of Ohio " - The meeting of June 23 was addressed by Edmunds who "entered the meeting to discuss the pension plan, which he said was in the process of modification and nothing definite could be slated at this time." Questions concerning service station employees were formulated at this meeting to be addressed to A. A. Starihbaugh and Gene Bourquin, department heads of the respondents, on the following day - The meeting of June 24 was presided over by Dittman The minutes state that "Mr. McCowen left the meeting at this, time to confer with Mr. Holliday and to report back to this body the result of his interview." Stambaugh and Bouiquin attended this meeting to discuss the questions which had been formulated on the previous day concerning service station employees. Holliday also attended this meeting, for a discussion of some 10 subjects suggested by the Association These subjects, as listed in the minutes, were substantially the same as subjects proposed for negotiations in McCowen's letter of April 29 to Maxwell, and in a similar letter addressed by McCowen to Holliday on -June 10. At the meeting of June 25, McCowen, as representative of the refinery divi- sions of the respondents' operations, C Bowers, as representative of the, bulk, plants, and H. L. Kelley, as representative of the service stations, were author- ized by motion to "meet with Mr. Holliday'to aid in drafting a statement of policy." ' The minutes state : "The letter on statement of policy was read by Mr Holliday which was the result of this meeting." The minutes also state that "the question of 10% raise was again discussed with Mr. Holliday-and 19 Although-16 chairmen attended on June 23, L L Webster attended the June 24 meet- ing thus constituting 17 chapter chaamen - 19 The meetings of the Central Chapter followed the same general procedure as had been observed in meetings of the Central Council The unit chairmen would meet in separate groups representing different divisions of the respondents' operations to consider problems, of group interest, and would confer with the respective department or division heads,- theieattei reporting back to the central body, McCowen testifying on this procedure, stated • " . . Manufactui ing Division would meet with Mi 1-lannel:en and the Sales De- partment people would meet with All Stambaugh, or anyone lie designated " 0 R Cole- man, chairman of Chapter 7, testified "Well, our preliminary meetings were held as an entire group Then if there was any special matters came up pertaining to the,sales group or the manufacturing group they would separate and discuss their question separately " Coleinan'furthei testified, "Yes, Di Edmunds we would usually have him in (luring our pielmunary meetings STANDARD OIL COMPANY, AN OHIO CORPORATION ;- 535 he made the --following statement : A 10% horizontal raise would. not be given at this time " Under,date of June 25, 1937, the respondents issued a mimeographed state- ment or bulletin over the signature of W. 'T. Holliday. This statement was headed: Pursuant-to conferences with the representatives of the Association of Petroleum Workers of The Standard Oil Company of Ohio, the Standard Oil Company announces the following policies. The subjects covered by the bulletin were : Seniority, vacations, service station salesmen, meetings, working hours, use of bulletin boards. With refer- ence to "Meetings" the bulletin stated : Regular monthly meetings will be held between the representatives of the local chapters of the Association . . . and the manager of the unit in which the members of said chapter work, and other meetings will be held from time to time on the request of either the, said representatives or of the manager; Annual meetings will be held between the chairmen of the local chapters of the Association . . . and representatives of the management of the company, and special meetings will be held at the request of the General Chairman of the said Association or at the request of the company's management. The record does not reveal the full extent of the publication and circulation of the above statement but since it was an official pronouncement of company policy, it is a reasonable assumption and the undersigned finds that it was published throughout the respondents' system of operations Edmunds testified that the aforesaid statement of policy resulted from conferences between Asso- ciation and management representatives and that the policies thus announced applied to the respondents' entire system of operations. It is strongly indica- tive of the state of mind of botif the respondents and the Association that this pronouncement of company policy should define the order of meetings between representatives of the Association and of management. That the order of such meetings thus stated was adhered to is borne out by the entire record. Association minutes reveal that the Association's constitution was adopted at a special meeting of the Central Chapter on November 18, 19371 The con- stitution thus adopted conformed in all mayor respects to the pioposals and suggestions made at the April 28. 29 meetings of 'the Central Council of the Plan, and adopted the structure of the Plan, with the single important differ- ence that, the Association provided its own system of finance through the collec- tion oedues from its members Whether the constitution thus adopted by the Central Chapter was formally ratified by all the chapters cannot be ascertained from the mecord, but the chapter chairmen constituted the Central Chapter and the chapter operated in accordance with its provisions Chapter 6 adopted its own constitution but maintained its affiliation with the Central Chapter according to provisions of the constitution adopted by the Central Chapter. Special meetings of the Central Chapter were held on December 3, 1937, and on February 9, 10, 1938. The minutes of these meetings record conferences between Association and management representatives on proposals of the Asso- elation which involved such natters as pensions, bonuses, and wages, in addition to individual grievances. On April 21, 22, 1938, there was an annual' meeting of the Central Chapter, and at this meeting McCowen "mentioned numerous things that had been accomplished throughout the state in the different chapters 536 DEiCISIONS OF NATIONAL LABOR RELATION, BOARD and especially the $50,000 which this Association was successful in getting the service station men. Also the privilege for the men in the refineries being able to work overtime if the company has the work equivalent to the time lost by those that lose time by being off the six (6), holidays." An election of officers was held with the result-that McCowen was reelected chairman of the Central Chapter, Hilton was reelected secretary-treasurer, and, Harold Kelly was elected vice chairman. The minutes of this meeting also refer to discussion on the "subject of the working agreement" and state that "it was agreed that H. H. McCowen do such preliminary work and appoint a committee to develop a proposed agreement -and this to be submitted to various chapters for final action." 20 The minutes of the April 22 meeting report that a joint conference with Holli- day, Hanneken and Edmunds, officials of the respondents, was held on the subject of recognition of the Association as sole bargaining agent and that Holliday stated "that when the National Labor Board designated the exclusive bargaining agent, he would govern himself by their decision." The minutes of the October 24, 1938, meeting of the Central Chapter again refer to Association efforts to secure recognition as sole bargaining representa- tive. The minutes state that McCowen advised Holliday that the Association had "a unit in each department of the Company also that the organization has been steadily gaining in strength and each individual unit is on a good financial basis " The minutes continue : Mr. Holliday stated that the position of the Company was in no way altered since his last meeting with the officers of the Association The Company adheres strictly to the letter and spirit of the Wagner Act. The power to determine the correct .bargaining agency for its employees does not rest with the company but with the National Labor Relations'Board. The Labor Board has not so far designated any organization as the bargain- ing agent for the employees and because of this, the company cannot enter into a written agreement for collective bargaining with the Association. -It was also stated by Mr. Holliday that otlier organizations had made de- mands for a written agreement' and that he had replied to them in exactly the same words used replying to the Association 2i It is clear therefrom and ,also from the testimony of the witnesses, that the respondents refused at all times to extend formal recognition to the Association as sole bargaining representative, or to enter into a written contract with it, unless the Association were first certified by the Board. Nevertheless, the respondents' representatives continued to meet with representatives of the Association for'the 'purpose of negotiating on problems affecting all employees of the respondents as well as problems of individual and group grievances. Thus; the minutes of the October 25, 1938 meeting state that representatives of the manufacturing department met with Hanneken for the purpose of dis- cussing "an increase in rate of pay for engineers on combination unit," and that "Service Station pay days were discussed and we are assured by Mr. Bourquin that something will be done about this in the near future." Ques- tions of seniority and wages were discussed in this and subsequent meetings, and on April 28, 1939, the respondents issued a statement of policy which was 20It is interesting to note that the Central Council meeting of April 8, 1937, voted to have a "Working Agreement drawn up by the Central Council " 2113olliday doubtless had retetence to Local 395 of the Union which requested recog- nition as sole bargaining representative of Number 1 Refinery (Cleveland) on May 28, 1937. There is no evidence of any other labor oiganization seeking recognition during this period. STANDARD OIL COMPANY, AN OHIO CORPORATION 537 similar in most respects to the one issued in 1937, and which by its own wording was issued "Pursuant to conference with the representatives of the Association of Petroleum Workers of The Standard Oil Company of Ohio." The following excerpt from the testimony of O. R. Coleman, Association witness, who as chairman of Chapter 7 of the Association, attended meetings of the Central Chapter in 1939 and subsequently, is illustrative of the scope of negotiations between the Central Chapter and the respondents: Q Now, on those occasions when you would meet with Management at those Central Chlipter meetings would you deal with problems and policies covering all of the employees throughout the system of The Standard Oil Company of Ohio? A. Yes, it, I think, affected everyone in the employ of the company. Q Yes, and that would probably include Latonia Refining Corporation and also the Sohio Pipe Line Corporation? A. That is right. The record of meetings between officers of the local chapters and theirre- spective department heads, reveals the same character of negotiations as oc- curred in meetings between representatives of the Central Chapter and manage- ment, though'in the local chapters the said negotiations were limited in scope to employees of their respective jurisdictions 22 As stated by Edmunds in his testimony: ". . . there are certain questions regarding wages and hours that would be settled inside of the local unit. The broader ones would come to the Home Office." Minutes of the Central Chapter of October 5, 1939, state : It was found that the majority of Chapters are holding monthly meetings with Refinery Superintendents and Division Managers. After a canvass of all the chairmen, it was found that they were not having any difficulty in getting meetings with Refinery Superintendents and Division Managers and it was found that in most cases, the chairmen were able to take care of their local problems in the majority of the cases very satisfactorily. The chapters were without exception refused formal recognition as sole bargain- ing representatives of their respective jurisdictions and no written agreements were effectuated between the chapters and department heads but, as in the case of the Central Chapter, actual recognition was granted them and their represent- atives met regularly with department heads and negotiated on all the major topics which constitute the subject matter of collective-bargaining. The true character of the recognition thus granted, the various chapters is illustrated by, a letter which Middleton, as superintendent of the Toledo refinery, addressed to G. W. Hanneken, the respondents' vice president and head of manufacturing, under date of August 31, 1938: You will possibly recall that several months ago (actually on June 7, 1937) I wrote you saying that Chapter No. 20 of the Association of Petroleum Workers of The Standard Oil Company of Ohio had asked that their organiza- 21 That the respondents did not observe the same latitude in discussions with grievance committees of the Union, is indicated by the testimony of F J Sanders who became super- intendent of the Toledo Refinery in September 1939. Sandeis whom the undersigned found to be an entirely credible wit^ess, stated that at a meeting with a committee of Local 346 of the Union in the summer of 1941, he refused to discuss a change in shift schedules be- cause he regarded that as "one of the fundamentals of collective bargaining." The under- -signed finds that the respondents restricted the subject matter of discussion with coin- mittees of the Union to much narrower scope than observed in confeiences betw1 en man- agement and the Association. r 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion be recognized as the sole haigainniig agent for the employees at this plant. Mr. Bickle has made the same request again and I have been able to reply to him only, as I did before-that it is not within the limit of my authority to acknowledge the Association of Petroleum Workersas ' the sole bargaining agent for -the Toledo Refinery employees He has made the point, however, that while recognition has never been given publicly , the fact is that his Association includes the majority of the plant employees and unofficially at least has been the spokesman for the employees as a whole on matters of wages, seniority, etc - While I certainly do not presume to offer any advice on this, it seems to me only fair to recognize officially, what is accepted in practice. 4. Financial support The respondents through the .letter of April 22 -addressed by Vice-president Maxwell to McCowen, and later memoranda addressed by Edmunds to supervisory _personnel, purported to withdraw financial support from the Plan or other labor organization with certain qualifications self-evident from a reading of the various memoranda. However, as has been stated in this report, subsequent to the Supreme Court's decisions sustaining the constitutionality of the Act, meetings of the Central Council weie held in Cleveland on April 22 and April 28, 29, and it is not disputed that the respondents bore the entire expense of the meetings, ,including the travelling and per diem expense of council chairmen who attended the meetings. Since these meetings were concerned almost exclusively, with devising changes in the Plan to meet the supposed requirements of the Act, and in fact resulted in a tentative organization of the Association which was adhered to in later meetings, it is clear that the respondents' financial support of these meetings was-violative of the Act and'aniounted to financial contribution to the Association. Nor (lid the respondents thereafter withdraw all financial support -of the Association. - • I - A careful reading,of all memoranda by.-the respondents on withholding of financial support, reveals that provision was made for meetings with manage- ment on company time. The respondents contend that it was their general •policy, applicable to all labor groups, to make whole employees for time lost- from their, respective jobs in coiiferring,with management on grievances In -practice, however, the respondents in their support of the Association, far exceeded the policy thus stated. Thus, no deduction was made in the wages or salaries of chapter chairman for time lost from their respective jobs in attending -meetings of the Central Chapter though these meetings usually lasted from 2 to 3 days and weie customarily held in Cleveland which was one or more days travel distance from some of the respondents' operations where the respective chairmen were employed. And while minutes of-each meeting of the Central Chapter received in evidence reveal that conferences were held between Asso- ciation and management representatives, it is quite clear that these conferences with management did not consume the entire time of such meetings. 'It is obvi- ous, therefore, that such financial assistance does not come under the sanction of Sect ion 8 (2) of the Act which provides that "ari employer shall not be prohibited from permitting employees to confer with him during working hours withoutbloss of time or pay " Further, as has already been noted, these conferences were by no means limited to the subject matter of mere grievances In addition to paying the wages and salaries of 'chapter chairmen for time lost from jobs in -attending meetings of the Central Chapter, the respondents admit that on occa- sion they summoned groups of chapter chairmen to Cleveland for the purpose of conferences, and that on such occasions,.ihe respondents bore the entire expense STANDARD OIL COMPANY, AN OHIO_,^CORPORATION 539 of such meetings, including the traveling and other expense of the chapter chairmen.' The undersigned finds that the respondents while withdrawing the major portion (if the financial support accorded the Plan, continued to contribute to -the support of the Association by paying the uu.tges or salaiies of its representa- tives for time lost from their respective jobs when attending meetings of the -Central Chapter, and by bearing-the entire expense of certain meetings of the Central Chapter which were called at the request of management C. The Toledo Refinery Acts and conduct amounting to interference, coercion and restraint, and domination and support of Chapter 20 of the Association, by the respondent Standard at its Toledo, Ohio, Refinery, are alleged. All findings in this section of the Report relate solely to the Toledo refinery. Beginning on a date prior to the formation of Chapter 20, the respondent Standard has maintained at its Toledo refinery a system of promotions represented by an "Extra Board " The purpose of the Extra Board is to enable new employees. who start as common or "Yard" laborers to seek advancement in departments of their own choice. The new employee having chosen the department in which he wishes to advance, has'his name listed on the Extra Board, and a system of seniority prevails in the advancement of men whose names are thus registered. It is alleged that the respondent Standard favored the Association by giving it virtual control of the Extra Board. - Middleton, superintendent, of the refinery until 1939 when lie was succeeded by F. J. Sanders, testified that dissatisfaction, arose among employees concerning the operation of the Extra Board and that the employees would go to Bickle, as their "representative," with their complaints Middleton directed Bickle to see what lie could do about "straightening them out," and at Middleton's direction Bickle called a meeting of the yard men. This meeting took place inside the plant during working hours Sylvester DeCant, a Board witness, who attended this meeting, testified that 40 to 50 employees were pres i ent and that "/3 of them were men who had been hired within 6 to 9 months. Bickle testified that the meeting occurred in 1938 and that it involved some 38 men The testimony was somewhat confused as to the exact nature of the discussion which took place at the meeting, but it appears that the problem of seniority was uppermost, some of the men contending for seniority on a departmental basis Bickle testified that the discus- sion involved both Association and non-Association members and that lie "wanted to know their wishes, what they were bitching'. bout " Pursuant to this meeting Bickle conferred with officers of the respondent and certain seniority and other records were checked. What changes, if any, were effectuated as a result of this meeting, are not clear. It appears, however, that dissatisfaction with the opera- tion of the Extra Board continued and the contract negotiated between Chapter 20 and the respondent, following certification of Chapter 20 pursuant to an election conducted by the Board on August 4, 1941, provided a large measure of control of the Extra Board by Chapter 20. "There is no evidence that representatives of the Union, prior to certification, ever niet with representatives of management on company time, but if it be assumed that such meetings were held, it does not appear that such meetings bore comparison either in scope or purpose to the bargaining conferences between representatives of the Association and 'management The record affords no basis for comparison between the Union and ineet- ings of the Central Chapter of the'Association, since evidence of union organization relates solely to the Number I Cleveland and Toledo refinei ies It is idle to speculate on what the respondents' policy may have been had the Union been organized on a scale coni- niensurate with the Association. 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Obviously, the matter of the Extra Board was of vital concern to new employees since it determined the course of their advancement The unmistakable effect on the minds of these men of Middleton's action in authorizing Bickle, chairman of Chapter 20, to call and conduct the meeting in 1938 on company tine and property, was that the Association had the support and approval of management. Middle- ton's action-in this respect was entirely consistent with his viewpoint expressed in his August, 1938 memorandum to Hanneken, that the Association was the actual though unofficial bargaining representative of Toledo refinery employees. That no opposing union was active at the time of the meeting, in no way gave license to management thus to sponsor and support the Association.' The record does not, however, in the opinion of the undersigned support the Board's allegation that the Extra board was discriminatorily administered by advancing Association nienibers while holding members of the Union back. While the contract of August 1941 between the Association and the respondent, as stated, gave the Association a large measure of control of the Extra Board, this was entirely legitimate if the contract itself was valid. This involves the larger problem of the Association's legitimacy at the time the contract was executed Much testimony was received on the subject of the allegation that, applicants f6r employment were referred to Association officers before hiring. Laverne Bezeau, a Board witness, testified that in October 1911, in seeking employment at the Toledo Refinery,i he was instructed by Henry Ladd, chief clerk, to talk with R. C Douglass, an Association officer and cost clerk for the respondent. Ac- cording to Bezeau, Douglass asked him if he had ever belonged to the Union and Bezeau answered that he had in a prior place ofemployment where the Union had a closed-shop agreement. Douglass also talked to Bezeau about the Asso- ciation and told hum that the Association had won an election for a bargaining representative. Pursuant to Douglass' instructions, Bezeau filled out a new application for employment, and' Douglass masked an "A" in the corner of they application blank According to Bezeau, Douglass then took him into Ladd's office and told Ladd that he was all right Ladd sent Bezeau to be interviewed by Wallace Bergen, assistant superintendent, and thereafter Bezeau returned to Ladd's office where Ladd asked him if he was acquainted with any of the present employees of the respondent and advised him that they had to be careful in hiring new men because there had been trouble between the Union and the Association and "they wouldn't like to have that go any further." Bezeau'was then assigned to a job Res Brown, a Board witness, who was employed during October 1941, as a telephone operator, testified that he was instructed by Bergen and Ladd to refer applicants for employment to Douglass, and that pursuant to these instructions, he sent a number of applicants to Douglass in the fall of\ 1941. Clarence Ossege, a cost clerk, whose office was opposite Douglass', testi- fled that in the fall of 1941, he eras in Douglass' office on one occasion when Ladd brought a man into the office and told Douglass, "I just wanted to be sure that you saw this man before he goes to work " Ossege further testified that he had seen Douglass interview applicants for employment in his office, and other officials of the Association talking with applicants at the entrance to the refinery offices. He also testifiedvthat he had,observed the telephone operator refer applicants to Douglass Clyde Rowley, a supervisor, testified that he ad- vised Johii II South, an employee under his supervision, that he should see Douglass about getting a job for his son The Rowley testimony substantially corroborated South's testimony on the same subject. This occurred in the fall of 1941. It appears from all the testimony and the undersigned finds that Bergen was in charge of hiring at the Toledo Refinery, and Ladd as chief,clerk,'was STANDARD OIL COMPANY, AN OHIO CORPORATION 541 nominally in charge of receiving applications for employment . Applicants for employment also, on occasion, received application blanks from the telephone 'operator at the entrance to the refinery offices Bergen and Ladd denied that 'they had ever referred applicants to Douglass or had instructed Brown to refer applicants to Douglass Douglass also denied that applicants for employment were referred to him , admitting , however, that persons had sought his recom- mendation for employment and that such persons had at times been sent to his office by the telephone operator pursuant to his instructions and that he had on occasion assisted employees in tilling out their application blanks Ile also admitted that he marked an "A" on the application blanks of persons he was recommending for employment but testified that B2zeau had already been hired when he talked to him. When questioned why he placed an "A " on application blanks , he stated " . . When we recommend men I don ' t want to lose track of them ... I think I have the ability to talk to those men and try to make them see that 'they should belong to the organization " He further testified on this subject, that the "A" would mean that he "had talked to that one fellow," and that thereafter if he was questioned by the Association committee , he could tell them that he had "contacted" this particular employee. Douglass also testified that he was accustomed to looking over applications for employment in Ladd's office, but that this was done without Ladd's permission though Ladd had seen him while he was thus engaged - The- undersigned is convinced and finds that applicants for employment, during the fall of 1941, were on occasion referred to Douglass , that he dis- cussed the Association with such applicants both before and after hiring, and that this was done wiih the knowledge and approval of Ladd. The under- signed further finds that both the Association and the Union recommended employees for employment during this period , and the record does not disclose that any applicant was rejected because ,of union affiliation ; it is also clear that not all persons recommended by the Association were employed . Never- theless, the effect on the minds of applicants who were thus referred to Douglass and who were the beneficiaries of his praise of the Association, was undeniably that the Association had the "inside track" with management There is no evidence , however, that the respondent had engaged in this or like conduct prior to' the election and certification of the Association as bar- gaining representative., It is alleged that the respondent discriminated against the Union by giving the Association preferred treatment in the placement of the latter 's bulletins on- the ' respondent's bulletin boards It appears from all the testimony and the undersigned finds , that both the Association and the Union were permitted by the respondent to post their respective bulletins inside the respondent's plant, provided the said bulletins were first approved by the respondent. There is no showing that the Union was discriminated against in the matter of having its bulletins approved . Prior to any request by the Union for the posting of its bulletins at the Toledo Refinery, the Association had been given the use of a bulletin board inside the respondent 's clock house which stands near the entrance of the refinery . This bulletin board was placed against the wall directly over the time clock where the men 'checked in for work,' and the men passing into the plant would normally pass directly in front of the bulletin board . In December,- 1940, a committee representing the Union called on Superintendent Sanders and requested permission to use a bulletin board in the clock house This permission was granted and after that date and until certification of the Association , the Union posted its notices on the bulletin board`' assigned to it. The bulletin board assigned to the Union, 542 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD however, was not- as advantageously situated as the one assigned to'the use of the Association, since it was not adjacent to the time clock but was set well within the interior of the clock house and thus the employees did not pass directly before it when entering the respondent's plant However, the ,clock house occupied a floor space of no more than 18 by 20 feet, had no par- titions or dividing walls, and employes entering it at any time with very little inconvenience could view the Union's bulletins. Sanders testified that lie re- fused the Union's request for the use of the same bulletin board as had been, previously used by the Association, because he thought there might be trouble if both organizations used the same board, and offered to place a bulletin board directly over this one for use, of the Union, but the Union rejected the offer, apparently because a second bulletin board thus placed would be well above eye level. Sanders further testified that he. offered the Union a bulletin board to be placed over a second time clock which would be situated on the opposite side of the clock house where employees would check out when leaving the plant, but that before this was accomplished the election intervened. There- after, pursuant to contract, the Association had the exclusive privilege of posting bulletins While as stated, above, the Union was assigned a less ad- vantageous bulletin board than the Association, it does not appear unreason- able that the respondent refused to assign it the use of the same bulletin board which had been used over a considerable period of time-by the Associa- tion, and the undersigned is convinced and finds that the respondent made all reasonable effort to meet the wishes of the Union in the matter Excluding the Union from use of bulletin boards subsequent to the election, was; of course, discriminatory if the' Association was not a legitimate labor organization There was testimony of William A Gower and Harry Ranes, that officers of the Association were-given permission to drive their cars into the premises of the Toledo refinery while off duty, although the respondent had a rule forbidding such practice Gower testified that on one occasion Harold Kieig, an officer of the Association, drove his car inside the plant, and that later on the same occasion, lie saw Kreig collecting. Association dues. Middleton corroborated the testimony of the Board's witnesses on the existence of the rule and admitted that on occasion he granted permission to officers of the Association to drive their, cars into the plant while not on duty for the,purpose of meeting with representa- tives of management with regard, to grievances. The undersigned accordingly . finds that,the respondent contrary to its rule, permitted officers of the Association to drive their cars into the plant when off duty for the purpose of conferring with management, and while the undersigned does not credit Middleton's testimony that such conferences were limited to employee grievances, in any event, the said action manifested to employees the respondent's approval of the Association and constituted illegal recognition and support of the Association. W. H. Crabtree, a Board witness who was employed by the respondent as a watchman, testified that in June or July, 1941, while on duty in the respondent's clock house, he overheard H H Chapman, a supervisory official, instruct Wallace Bergen, assistant superintendent of the refinery, to discharge employees affiliated with the Union. According to Crabtree, Bernard Horn, a supervisor, was in the clock house at the time this conversation occurred between Bergen and Chapman Crabtree testified that although Chapman and Bergen conversed for about 30 minutes, the only part of the conversation that- he overheard related to the discharge of union members Chapman, Bergen and Horn all denied that the alleged conversation occurred. The undersigned believes it unlikely, considering the small enclosure' of the clock house, that in an extended conversation between - Chapman and Bergen, Crabtree would have been able to hear only such portions STANDARD OIL COMPANY, AN OHIO CORPORATION 1 543, of the conversation as related to discharge of union members, or that Chapman would. have made such a statement in Crabtree's presence . The undersigned does not credit Crabtree's testimony and finds that Chapman did not make the remarks attributed to him. W F. Houlton testified\that Ralph Bradford made statements in the summer of 1941 to the effect that if the Union was successful , there would -be strikes because "That 's about the first procedure they go through." According to Houl- ton, Bradford also` argued with him in favor of the Association , and urged hun instead of paying $2 or more for dues , to get in the Association by paying 25 cents, and asked , "Why pay more ?" Houlton testified that Bradford made these and similar remarks in support of the Association and in derogation to the Union generally, to groups of men. Bernard L. Paule testified that when he expressed his dissatisfaction with the Association because in his opinion it was "company dominated," Bradford tried to convince him that he should pay up his back dues in the Association , stating, "Well, wouldn't you rather pay a quarter a month than •$2.00 a month if some other union got in here?" Paule further testified that on the day of the Board election , he told Bradford , "Well, Ralph , it looks like we are winning . . ." and Bradford replied , "If you do, there is going to be plenty of head busting around here." On another occasion, Brad- ford tried to show Paule the "bad points" of the Union and stated "that as far as the Association being in here , they would never have any strikes, and if we got'the CIO, they would have one strike right after the other, there would be a lot of days they wouldn 't work, and all that stuff." Paule also testified that he had a conversation with Bradford after the Board election in which Bradford spoke of labor difficulties on the West Coast and when advised by Paule that, an A F of L. union was involved there, stated , "Well, that just shiows you how-.they operate," and "It is a big graft." Both Paule and Bradford testified that they were on friendly terms, and Bradford stated that- their families visited back and forth. Bradford who joined the Association when it was formed and continued as a member until April , 1941 , admitted that he madelsubstantially the statements attributed to -him by Houlton and Paule , but testified that in so doing he was merely expressing a personal opinion, and that the statements were made when be was acting as chief operator of a combination unit . As, such chief operator he was in charge of operations but had no authority to hire or ,discharge or to discipline employees of lesser rank who worked with him on the combination unit However, in addition to his duties as chief operator, Bradford also served on occasion as foreman of the night shift and when serving in this capacity was foreman over the entire refinery , As shift foreman breaker , or substitute foreman, he acted as foreman only when a regular foreman was ill or on vacation, and served mainly in this capacity during the summer vacation periods . The under-, signed is convinced and finds that by virtue of his position of shift foreman breaker , Bradford was regarded by the ' employees as a supervisor and as a representative of management and that his anti -union statements, in view of the total situation of respondent 's interference with and support of the Association, are attributable to the respondent ' W: S Draper who also allegedly made anti -union statements occupied a position analogous to that of Bradford , serving as shift foreman breaker in the barrel house and as foreman of the barrel house when due to extra orders a night shift was added to normal operations . When not thus acting as a foreman he was a barrel filler and in the latter capacity had no supervisory functions Merle Carr, a Board witness, testified that prior to the Board election in 1941, Draper stated : "I just told your brother that I hoped anybody that joined the CIO lost everything '544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they had." Charles Lauman, a Board witness, testified that Draper made a similar remark to him,applying an opprobrious' epithet to employees who joined the Union and stating that he hoped everyone who joined the Union would "lose everything he's got " , Lauman was uncertain of the date when Draper made the alleged statements but thought it was in 1942. Lauman also testified concerning an incident when he was rebuked by Wallace Bergen for being outside his own place of work for the purpose of discussing ^fthe Union with two employees of the barrel house. The undersigned finds that Bergen instructed Lauman' not to interfere with production and that there was nothing improper in his action in doing so, or in Draper's action in reporting the incident to Bergen. Draper did not testify but it was shown that he was a member of the Association and attended Association meetings 2i The testimony of Carr and Lauman is, undisputed and is credited, and the undersigned finds that Draper expressed his disapproval of the Union in terms attributed to him by Carr and Lauman, and that because of his, position as shift, foreman breaker, or substitute foreman, and his position on occa- sion as foreman of the night shift, the employees regarded him as supervisory and, as representative of management and that his anti-union statements in view of the total situation of the respondent's interference with, and support of the Associa- tion, are attributable to the respondent. / ' Robert Bede, a Board witness, testified that in Ju'y 1942, while he was working in the respondent's paint shop he had a conversation with Lawrence Ames, paint shop foreman, during the course of which Ames stated that he thought "we was doing the wrong thing by joining the CIO, because if we -would get the CIO in that everything would go to contracting, that we would see the smallest paint gang in the Standard that we had ever seen before " Ames denied the -statement attributed to him by Bede but testified that Bede asked him what he thought about Bede's joining the CIO and that he replied, "You see what the Pure Oil has got over here They contract their painting." Ames further testified that he was made foreman of the paint shop in A;.ril 1942, and in response to a leading question by counsel for the Board, stated that the conversation with Bede occurred prior to April 1942 and at a time when, -he was merely acting foreman in the absence of the regular foreman who was at that time ill. The undersigned is convinced and finds that Ames made substantially the statement attributed to him by Bede and at a time when he' -was a regular foreman, and that his statement is therefore attributable to the respondent In the light of Ames' own testimony, his statement to Bede was _a thin'y disguised threat directed against, the Union. The undersigned finds that the following allegations of the Board's complaint' are not supported by credible testimony : That Ladd, a supervisor, told members of the Union that any employee who _joined the Union would not have 'a job with Standard; That Sanders, the respondent's superintendent, caused an increase of the Association's Grievance Committee, in August, 19.41; That C. O. Rowley, Marcus P\ Davis and Ladd, supervisors, asked employees to solicit membership in the Association and pay dues to the Association ; 21 It was also alleged that Frank Buchele, Lester Rought, and Harry West, supervisors of the respondent, attended meetings of the Association. The undersigned credits P.uchele's testunony, coiioborated by 'his wife, that the only time he attended an Associa- tion meeting was on the occasion of a fish fry, and that he did not attend a regular or business meeting of the Association. The undersigned credits Rought's testimony that he attended only one meeting of the Association-that meeting which was held in conjunction with the fish fiy. The undersigned finds that Harry West does not occupy a supervisory, p-position or one from which employees might reasonably infer that he,represents management, and therefore his attendance of Association meetings is immateiial. STANDARD OIL COMPANY1 AN OHIO CORPORATION 545 That Standard permitted officers of the Association to utilize the time; services and equipment and supplies of its clerical staff, for Association business in May, 1937. D. Board elections; the unfair labor practice charge of September 5, 1941 Pursuant td a petition for certification filed by Local 395 of the Union on March 12, 1941, following a hearing- thereon, the Board on June 9, 1941, issued its Decision and Direction of Election." , Pursuant thereto an election was held on June '30, 1941, for certain employees of the respondents' Number 1 (Cleve- land) refinery which the Board had found constituted an appropriate unit, both the Union and the Association appearing on the ballot. It was the position of . both the respondents and the Association before the Board, that all employees throughout the respondents' refineries, with the exception of certain classifica- tions, should be included in a single appropriate unit, but as has been noted, the Board rejected this contention, and found for the unit proposed by the petitioner. As a result of the election, the Union was certified as bargaining representa- tive for emp'oyees of the Number 1 Refinery, and a contract was entered into between' the respondent Standard and the Union. It is the position of the Association that Chapter 15 become non-existent following the certification of the Union. Pursuant to a petition for certification filed by Local 346 of the Union on July 11, 1941, a consent election agreement was entered into between the Union, the Association, and the respondent Standard and approved by the Board's Regional Director, for employees of'the respondent's Toledo Refinery. An elec- tion was thereafter held on August 4, 1941, both the Union and the Association, appearing on the ballot, with the result that a majority of the ballots, cast favored the Association. The Association was duly certified by the Board's Regional Director as -collective bargaining -representative for employees of the Toledo Refinery, and a contract was executed between the Association and the respondent on August 28, 1941, for employees of this refinery. Consent elections were thereafter held among employees of the respondents' Solar Refinery (Lima, Ohio), Latonia Refinery (Latonia, Kentucky), and Num- ber '2 Refinery (Cleveland, Ohio). Each of these elections was conducted under the supervision of the Board and in each the particular Chapter of the Asso- ciation involved Was certified as the collective bargaining representative. The Union was notified of the elections to be held at Solar Refinery and Number 2 Refinery and was given an opportunity to participate therein but declined, and the Association was the sole labor organization appearing on the ballot of these places. The consent election agreement pursuant to which an election was held at the Latonia Refinery, was executed by the respondent, the Association, and the American Federation of Labor. There is no evidence of Union interest in the Latonia Refinery election The elections at the Latonia, Solar and Number 2 refineries-were held on August 13, 1941; October 21, 1941; and October 22, 1941, respectively, and following the certification of the Association in each instance, contracts were executed by the respondent and the respective chapters of the Association Pursuant to an agreement entered into between the respondent Latonia and Chapter 18 of the Association, the Board's Regional Director for the Ninth Region conducted a check of Association authorization cards against names of employees in the appropriate unit agreed upon. The aforesaid card count disclosed an Association majority and the respondent Latonia thereafter executed a contract with Chapter 18 of the Association. 23 32 N L R B. 437 513024-43-vol 47-35 546 DEICiSIONS OF NATIONAL LABOR RELATIONS, -BOARD Thereafter, petitions for certification were filed by several other chapters of the Association, but were dismissed by the Board upon the filing on November 3, 1941, of the original charge in this proceeding. An earlier charge alleging company domination of the Association was filed on September 5, 1941, by Cleveland Industrial Union Council, an association of affiliates of the Congress of Industrial Organizations of the Cleveland, Ohio area. This charge was investigated by the Board's Regional Office during which cer- tain records of the Association were made available to the Board's Field Ex- aminer. However, no complaint was issued thereon; and on September 27, 1941, withdrawal of the charge was requested The following sentence appears in the letter requesting withdrawal: ° Withdrawal is requested because we have been unable up to this time to, develop sufficiently substantial evidence to support the allegation The Board granted the request for,the withdrawal of the charge and no further action was taken thereon. E. The alleged discriminatory discharge of William Philpott William Philpott was_ employed by the respondent in 1936 as a still cleaner and worked continuously thereafter, in various jobs, until May-1, 1941, when he was discharged. According to Philpott, whose testimony in this respect was undisputed, dissatisfaction arose among the still men in April 1941 clue to the overcharging of the stills. Philpott was designated by the employees of this department to report the condition to Superintendent F. J Sanders, and pursuant thereto Philpott made an appointment with Sanders. Accompanied by another employee, Pete Traymun, Philpott saw Sanders on' or about April 24, and re- ported on the condition of the stills. Philpott testified that Sanders said he would investigate the matter and take action if necessary, and that some im- provenient resulted from the interview A few days after interviewing Sanders in behalf of the still men, Philpott was called to the office of Henry J. Ladd, chief clerk of the respondent, who 'advised him that his wages had been garnisheed by a creditor. Thereafter, Philpott was questioned concerning the garnishment of his wages by Wallace Bergen, assistant superintendent; and Sanders His discharge followed Philpott admitted that his wages had been garnisheed on prior occasions, and, that prior to his conversation with Sanders relative to the stills, he had been warned by Ladd and Sanders that if new garnishments on his wages issued he would be discharged 'These earlier conversations with Ladd and Sanders oc- curred in October 1940, and while the testimony pertaining thereto was some- what confused, it appears that Philpott owed a sum _of money to a certain creditor who from time to time caused his wages to be garnisheed Philpott testified that he was given some assurance that his discharge would not result from further garnishment actions by this same creditor, but that any new garnishment of his wages would result in- his discharge. Sanders also testified that he considered the successive garnishments by a single creditor an "exten- uating circumstance," but that the garnishment upon which the discharge was based was a new matter and issued only .a few days prior to Philpott's dis- charge Following-Phil pott's discharge, a committee of the Union conferred with Sanders reliitive• to his reinstatement and Philpott was reinstated July 14, 1941. Philpott admitted and it is clear'from all the testimony, that his action in interviewing Sanders relative to the condition of the stills in April 1941, was not STANDARD OIL COMPANY, , AN OHIO CORPORATION 547. instigated by either the Union or the Association, but represented concerted action by the employees of the still department. There is no evidence that Traynum, who accompanied him in his interview with Sanders, was in any way discriminated against thereafter. Furthermore, it is undisputed that in October of the preceding year, Philpott was warned that he would be discharged if new garnishments of his wages were issued. In October, 1941 a committee of the Association requested management to give Philpott "another chance" and at that time, Philpott was advised iii writing by the management: At the Petroleum Workers' request, we have reconsidered your case, and are giving you another chance However, in the event that you receive another garnishee or make another assignment of wages, we will be forced to take action. Certain witnesses for the Board testified that their wages were garnisheed and they were not discharged, but it was not shown that any of'these employees suffered as many garnishments, in a corresponding period of time, as Philpott. The contract that was negotiated between the Association and ' management in August 1941, provided that 3 or more, garnishments within a, 12-month period would subject the employee to discharge, and at least one employee, a member ,of the Association, was discharged pursuant to this provision. It was stipulated that Philpott's wages .had been garnisheed 5 times in the 12-month period preceding his\ discharge ' Upon consideration of the entire testimony,. the undersigned is convinced and finds that Philpott was not discharged because of union or concerted activity, but for cause. .CONCLUDING FINDINGS The Sohio Council Plan functioned as a labor organization from 1933 when it was formed by the respondent Standard, until April 29, 1937, and was similar in organizational structure and purpose to other employee representation plans which were widespread in industry prior to the Act. It was established through- out the operations of the respondent Standard and its subsidiaries, the resporid- ent Sohio and the respondent Latonia, whose labor policies were centrally con- trolled and directed liy the respondent Standard. On the basis of the respond- ents' admissions and the entire record, the undersigned finds that the Plan was a labor organization, formed, supported and dominated by the respondents.' The next focus of inquiry is whether the respondents took such measures as are required by the Act to disband the Plan and so completely to dissipate the effects of their- domination as to restore to their employees the freedom in self- organization contemplated by the Act. The independence or bona fides of the Association is but another facet of the same' problem since its alleged sue- cessorship to the Plan must be determined in large measure in the light of the respondents' fulfillment of the requirements of the Act in disestablishing the Plan. The undersigned is convinced and finds, upon consideration of the enure record, that while subsequent to the Supreme Court's decisions on April 12, 19:17, sustaining the constitutionality of the Act, the respondents withdrew a sub- stantial measure of their financial support of the Plan, they at no time unequivocally withdrew from participation in the Plan or required its dis- establishment It appears from the Maxwell letter to McCowen of April 22, and from McCowen's response to that letter in his memoranda to Unit Council chairmen of the Plan, that by withdrawing their main, financial support of the Plan and'forbidding meetings on company time and property, the respond- ents considered that they were meeting the requirements of the Act and 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the council chairmen of the Plan shared this opinion. However much this may bespeak the good, faith of the respondents and council chairmen who were instrumental in organizing the Association, good faith is not a sub-' stitute for the respondents' responsibility under the Act. "* * * the test, ivh'ether a challenged organization is employer controlled, is not an objective one but rather subjective, from the standpoint of employees." 26 Furthermore, financial support is but one of numerous means by which employer approval of a labor organization may be manifested to employees. It is clear that the statements of officers of the respondents at the Aprilj 8, 9, 28 and 29 'meetings of the Central Council of the Plan did not amount to oral disestablishment of the Plan but actually conveyed to the council chairmen the meaning and understanding that by arranging for collection of dues from its employee members so as to become self-supporting and by effectuating a few minor changes such as a change in name, the Plan might continue to function as a labor organization. The fact that on April 29, 1937, following the statements of Edmunds and McAfee the Central Council met and laid the organizational groundwork of the Association, convincingly bespeaks the true character and effect' of the Edmunds and McAfee statements. McCowen's letter of the same date in' which' he requested recognition of the Association as exclusive bargaining representative of all employees, is similarly' revealing of the state of mind of council chairmen after hearing Edmunds and McAfee. 'As further evidence of their disestablishment of the Plan, the respondents rely on inter-office communications addressed by Edmunds to Middleton and Brown. While the memorandum to Brown, assistant treasurer of the respond. ent Standard, contains the categorical statement : "The Sohio Council Plan became non-existent on April 29, 1937," it is otherwise merely an instruction to Brown, a financial officer, that the company would no longer contribute financial support to "any labor organization." The memorandum to Middleton which was communicated by him only to local representatives of the Plan made no mention of the Plan and it, too, was merely a statement of company policy on the withholding of certain financial support from labor organizations. News-, paper articles stating that the respondents were disbanding the Plan have little or no probative force in establishing the fact of disestablishment in the absence of corroborative testimony or at least a showing that the said news- paper articles were brought to the attention of the employees in the sense of an official pronouncement of company policy. No such showing was made, there being no. testimony from which one might infer that employees of the respondents, generally, saw or read the aforesaid newspaper reports. There is in fact no evidence that the respondents at any time published to their employees, either orally or in writing, that they were disestablishing the Plan or withdrawing their support therefrom, unless the testimony of employee representatives of the Plan that in soliciting membership for the Association, they advised employees of their respective units that the Plan was "out", can pass for such evidence However, if the representatives of the Plan be thus regarded as agents of the respondents in advising employees of the Plan's disestablishment, it must be borne in mind that according 'to the testimony of these same representatives, at the time they were publishing such information they were also soliciting membership in the Association. Since this solicitation was carried on openly on company property during working hours, the employees could hardly be expected to distinguish between these representatives when acting qua agents of the respondents in announcing the demise of the Plan and when -20 N. L. B B . v. Thompson Products , lnc, (C C. A 6 ), No. 9129, decided August 28, 1942' STANDARD OIL COMPANY, AN OHIO CORPORATION 549 acting qua agents of the Association in forming a new organization. It is entirely reasonable to conclude and the undersigned finds that employees thus approached .by representatives of the company dominated Plan, understood that in their efforts to form the Association, the said representatives were acting with the knowledge, consent and, approval of the respondents. If the employees would have just cause to believe that solicitors professedly for a labor organization were acting for and on behalf of the management, the Board would be justified in concluding that they did not have the complete and unhampered freedom of choice which the Act contemplates.` In any event, even assuming that the employees were duly advised that the Plan was defunct, the respondents' conduct, in the light of the circumstances, was such as to cause them to believe that the Association had evolved from the Plan : The theory is that in cases such as this, where an unaffiliated union seems to the employees at large to have evolved out of an earlier joint organization of employer and employees, the Board may take it as datum, in the absence of satisfactory evidence to the contrary, that the employees will suppose that the company approved the new, as it did the old, and that their choice is for that reason not as free as the statute demands 28 The respondents' contention that in 1937 the requirements of disestablishment of an employer dominated labor organization had not been fully defined by-the Board or the courts obviously does not constitute a defense. "It is idle to argue that the acts of the respondent were justified because committed during the earlier days of the operation of the Labor Act and before the great body of law now existing had been developed." 26 Not only did the respondents fail in their duty to publish to their employees the Plan's disestablishment and thus remove the taint of four years of company domination , restoring to the employees their freedom of self-organization, but there was in fact no actual break or breathing spell between' the functioning of the Plan and the formation of the Association. The effects of employer coercion, inherent in the establishment and mainte- nance of a company-dominated organization, can be dispelled only by the re-creation of conditions in which genuinely free choice can be exercised. To this end it is essential,, if an ostensibly new organization is set up, that there be "a complete break between the two unions and a disestablishment of the objectionable union," and that the employees be "effectively and unmistake- ably informed of such action." 80 The last meetings of the Central Council of the Plan on April 22 and April 28, 29, 1937, the entire expense of which was borne by the respondents' were actually also, the first meetings of the Association, for it was at these meetings that the name of the Association was proposed, its chapters designated, and its schedule of dues -determined, as well as its organizational structure. The minutes of the April 29, 1937 meeting of the Plan refer to the election of a treasurer of the "Central Association", and the chairman, of the Central Council was at 'this meeting 21 N. L. R. B. V. International Ass'n of Machinists, 311 U. S. 72; N. L. R. B. v. Link- Belt Co., 311 U. S. 584. 2Westinghouse Electric & Mfg. Co. v. N. L. R. B , 112 F. (2d) 657 (C. C. A. 2) (aff'd per curiam 312 U. S 600 , enf'g as niod: Matter of Westinghouse Electric it Mfg. Co. and United Electrical Radio it Machine Workers of America, etc.; 18 N. L. R. B. 300). 29 N. L. R. B. v. Thompson Products, Inc., (C. C. A. ,6) No. 9129, decided August 28, 1942. 90 Matter of Standard Oil Company, Standard Oil Company of New Jersey and Congress of Industrial Organizations, 43 N L. R. B. 12, decided August 12, 1942. 550 DECISIONS 'OP NATIONAL LABOR RELATIONS BOARD authorized to demand recognition of the Association as exclusive bargaining repre- sentative. Thus, one searches the record in vain for any evidence of a pause or breathing spell between the demise of the Plan and the birth of the Association. The organization of the, various chapters of the Association shows a similar lack of definite cleavage between the Plan and the Association As has been noted, at the same time representatives of the Plan were advising employees of their respective units that the Plan was "out", they were securing membership ,signatures and collecting dues for the Association. Thecorganizational meetings of the Chapters resulted in most instances in the election of the same men as officers of the Chapters as had served as officers of the Unit Councils under the Plan.' Within the relatively short period of from April 29 to June 23, at least It is apparent therefore and the undersigned finds that the respondents con- tributed financial support to the Association. The respondents consistently withheld formal or official recognition of the is hardly to be distinguished from meetings of the Central Council of the Plan, 'except that the entire expenses of the chapter chairmen in attending the meeting were no longer-borne by the respondents. However, while all regular neetings of the Association were held off company property and at-Association expense, no deduction was made in the wages or salaries of Association representatives for time lost from their respective jobs when attending meetings of the Central Chapter. There were also meetings of certain of the chapter chairmen com- prising the Central Chapter which were held at the request of management, and on such occasions the respondents bore the entire expense of the said meetings. It is apparent therefore and the undersigned finds that the respondents con- tributed financal support to the Association. The respondents consistently withheld formal or official recognition of the Association and refused to execute a written contract with it, unless the Asso- ciation` were first certified as bargaining representative by the Board, but begin- ,niiig with the first meeting of the Central Chapter, the respondents' representa- tives met regularly with representatives of the Association, in the same manner as they had met with representatives of the Plan, for the purpose of negotiations -on all issues which normally constitute the subject matter of collective bargain- ing. These negotiations were normally based on proposals regarding hours, wages, seniority and kindred subjects advanced by the Association, and the 'respondents accepted or rejected the proposals after expressing the viewpoint of 'management, or advanced counter proposals of their own. Thus, on June 24, -1937, the respondents issued a statement of policy affecting their entire operations which, admittedly, was the result of negotiations between the respondents and the Association. Meetings of representatives of the various chapters with their ,respective department heads, followed the same general pattern. The undersigned finds no merit in the respondents' contention that these conferences with Association representatives were restricted to matters of em- ployee grievances: The record is replete with evidence that wages, hours, seniority and kindred subjects of collective bargaining affecting all employees of the respondents regardless of their union or non-union affiliation, were dealt with in these meetings of management and Association representatives. Obviously, under the guise of conferring.on'employee grievances, management may `not extend virtual recognition and support to a labor organization Wits' f its own choice, thus defeating 'the true fundtion of ,collective bargaining by employees through representatives of their own choice." $' See Matter of North American 'Aviation, Inc. and United Automobile, Aircraft and Agricultural Implement Woikers of America, Local 887,. C. 1. 0., 44 N. L. R. B -604, decided September 29, 1942. STANDARD OIL COMPANY, AN OHIO CORPORATION 551- The undersigned finds, that the respondents withheld the shadow but not the substance of recognition from the Association, and that Middleton in his .memorandum of August 31, 1938, bespoke the actual situation then existing throughout the respondents' operations when he wrote, ". . . it seems to me only fair to recognize officially, what is accepted in practice." The undersigned further finds that the respondents' contention that its policy of meeting with employees or "grievance" committees applied to all labor organizations alike, is fairly academic, since there is no evidence of organizational activity on the part of any labor organization other than the Association, during the period when the Association was formed and began its functioning as unofficial bargaining representative of all the respondents' employees, except Local 395 of the Union, whose membership was limited to the employees of a single refinery. It is significant in this connection that Local 395 of the Union was formed in opposition to a continuance of the Plan, and that fact was known to the employees While the record does not disclose the character of such meetings as may have been held between representatives of Local 395 and the management, if it be assumed that such meetings were held on the same footing as local meetings with Association representatives, this affords no basis, of comparison with the system-wide recognition of and bargaining with the Asso- ciation. Both the respondents and the Association place strong emphasis -on the fact that certain elections were conducted by agents of the Board, with both the Association and the union appearing on the ballot, as a result of which certain chapters of the Association were certified, and contracts were thereafter executed on the basis of the said certification. The argument is that . the Board in conformity with its policy stated in prior decisions," should foreclose itself from a consideration of evidence of unfair labor practices antedating the afore- said elections and certifications. , The undersigned finds no,analogy in the present situation and; in those cases where elections were conducted pursuant, to so-called settlement agreements by the terms of which charges were withdrawn .by the complainant union and the allegedly company, dominated union was given a place on the ballot. No semblance of a settlement agreement can be attributed to any of the elections in which, the Association appeared on the ballot. An affiliated group of the Union- filed a 'charge against the respondents of company domination of the Association in September 1941 and thereafter two elections were held with the Association appearing on the ballot, but that charge was withdrawn without a formal ,hearing thereon, and the said withdrawal in no , sense represented a settlement agreement or foreclosed the same union or other affiliates, of the same union , from filing subsequent charges of the same or similar character. Furthermore, the Union did not appear on the ballot with the Association in either of the elections held subsequent to the filing of the charge by an affiliated group of the Union. But in any event, neither the Board nor the courts have ever held, in any case, that a union is estopped.from filing a charge of company domination of an opposing labor organization, because it previously has con- sented to be represented on the same ballot with such an opposing labor organization, although it may have had knowledge of the facts later alleged to constitute company domination, at the time, of its said consent. All of the 31 Wickwire Bros. and ,Amalgamated Ass'n of Iron, Steel & Tin Workers of North America, Lodge, #1985, through S. W. 0. 'C., affiliated with the C. I. 0 , 16 N. L. R. B. 316 ; Hope Webbing Co. and Textile Workers Organizing Committee of the C. 1. 0., Local No. 1., 14 N. L. R B. 55 11 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decisions are to the contrary.33 Representation proceedings under Section 9 of the Act, and unfair labor practice proceedings under Section 8 of the Act are obviously separate and distinct, and one does not foreclose the other. The Circuit Court of Appeals of the Sixth Circuit in a recent decision stated: It is now urged that since the existence of the Association and the organiza- tion of the Alliance, together with the latter's recognition as an exclusive bargaining agency capable of contracting with the respondent, and the execu- tion of contracts with it, were all circumstances transpiring before the inauguration or during the proceedings upon the previous complaints, known to the complaining Union and the Board, the Board is now barred upon principles of estoppel or by the application of the doctrine of res adjudicate, from considering the charges of the Union or entering the present complaint. * * * * * * * We are, however, obliged to bear in mind that a proceeding under the National Labor Relations Act is not litigation between private parties even though the inquisitorial and corrective powers of the Board may not be invoked without a charge being lodged by individual employees or, an employee union. It is a proceeding. by a public regulatory body in the public interest. It is neither punitive nor compensatory but preventative and remedial in its nature. if the so-called bargaining agency is in any respect brought forth by employer domination, or interference, and the contractual relationship with it is a continuing one, the'effect is a continuing, invasion of employee rights to bargain collectively through agencies of their own choice without interfer- ence of any kind by the employer, and the Board is not barred by any principle of estoppel or the doctrine of res adjudicata. from putting a stop to it3' - The Board has iii a recent decision 36 indicated that where the union and agents of the Board, with full knowledge of acts and conduct later alleged as constituting company domination of a second labor organization, agree to an election with the allegedly company dominated union appearing on the ballot, and there are no continuing unfair labor practices following the election, the Board may as a matter of policy disregard evidence of acts and conduct of company domination which occurred prior to the election. Again, however, there is little analogy found in the facts of that case and decision and in the case at hand. At the time the Board directed an election with both the Union and Association appearing on the ballot, no charges of unfair labor practices had been filed against the respondents, and issues of unfair labor practices are not litigated in a representa- tion proceeding. The charge which was filed by an affiliated group of the Union on September 5, 1942, was at least partially investigated by the regional office, but it is impossible to infer that on the basis of such partial investigation the Board became acquainted with the volume of evidence adduced in the present proceeding on the subject of the respondents' domination of the Association. As previously stated the aforesaid charge was withdrawn without formal proceedings being instituted thereon. No elections were held subsequent to the filing of the "See N. L R B. v Swift d Company and Neuhof Packing Company, 127 F (2d) 30 (C. C. A. 6), N L R B v Stone, 125 F. (2d) 752 (C C A. 7). 31 N. L. R. B. v. Thompson Products, Inc. (C. C.,A 6) No. 9129, decided August 28, 1942. 33 Matter of Houdaslle-Hershey Corporation and Houde Engineering Corporation and In- ternational Union, United Automobile, Aircraft and Agricultural Implement Workers of America (C. I. 0 ), 42 N L R. B. 713, decided July 22, 1942. 'STANDARD `OIL COMPANY, AN OHIO CORPORATION 553 original charge in the present proceeding . The undersigned accordingly is of the opinion that the-Board should not as a matter of policy foreclose itself\from a consideration of the entire conduct of the respondents as disclosed in the record of this proceeding. , That certain employees during the more than five years that the Association has functioned as a labor organization have come to feel a measure of pride in its accomplishments , and that in the Association they have a labor ,organiza- tion of their own choice , is not doubted by the undersigned , but this cannot operate to remove the taint of company domination or absolve the respondents from their illegal acts. ,The undersigned finds no merit in the . Association's contention that each of its chapters should be viewed as a separate labor organization . It is clear from all the testimony that the various chapters are members of the one body, and while the members perform certain distinct and characteristic functions, they also function as members of the central body which is composed of all the chapters It is conceivable that one of the chapters might secede from the central body, but when it did so, it would cease to be any part of the Association and only-then would it constitute a separate and distinct labor organization This is clearly illustrated in the Association of Petroleum Workers, Inc., which broke away from the Association and formed its own separate labor organiza- tion. The undersigned finds that all the chapters of- the Association are inte- grated in one labor organization and are inseparable for the purposes of this proceeding. . On the basis of the foregoing findings of fact and the entire record the under- signed finds that the respondents did not disestablish the Plan, a labor organi- zation formed , supported and dominated by the respondents, and, that because of their failure t6 do so , the imprint of company domination was unmistakably stamped on the Association from the date of its inception . The undersigned finds that the Association is a successor labor organization to the Plan , and ifs formation in fact marked a continuation of the Plan under the guise of a new labor organization , since there was no pause or breathing spell between the functioning of the Plan and the functioning of the' Association . The under- signed further finds that the respondents fostered and supported the Association by permitting it to circulate membership petitions on company premises during working hours, by recognizing it and bargaining with it on matters pertaining to wages, hours and working conditions of all its employees , and by contributing financial and other support to it. The undersigned finds that each and every contract executed with the Asso- ciation and its chapters is invalid because made and executed with a company dominated labor organization , and that by entering into the aforesaid contracts with the Association , and by other acts of assistance , pursuant to the said contracts ,' the respondents gave support and encouragement to the Association while discouraging membership in the Union. The undersigned finds that by the aforesaid acts of interference with, domina- tion and support of the'Association, the respondents interfered with , restrained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The undersigned finds that the respondent Standard , at its Toledo, Refinery, through the acts and conduct of its supervisors Middleton , Bradford, Draper and Ames, encouraged membership in the Association and discouraged membership in the Union, and thereby interfered with, restrained and coerced the employees of its Toledo Refinery in the exercise of rights guaranteed in Section 7 of the Act. 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The undersigned finds that the respondent Standard did not discharge William- Philpott or otherwise discriminate against him because of union or concerted activity. - IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondents set forth in Section III above, occurring in connection with the operations described in Section I above, have a close, inti-' mate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the 'respondents have engaged in unfair labor practices, the undersigned will recommend that they cease and desist therefrom, and take certain affirmative action which the undersigned finds necessary to effectuate the policies of the Act. It has been found that the respondents dominated and interfered with the formation and administration of the Plan, and the Association, and contributed financial and other support to them. The undersigned has found that the Asso- ciation is a successor labor organization to the Plan, and since the Plan as distinguished from the Association ceased to function in 1937, no recommenda- tion will be made concerhing it. The effect and consequence of the respondents' domination, interference with'and support of the Association, as well as the- continued recognition of the Association as the bargaining representative of their employees, constitute a continuing obstacle to the free` exercise by the employees of their right to self-organization and to bargain collectively through representatives of their own choosing. Because of the respondents'. illegal con- duct, the Association is incapable of serving the employees as a genuine col- lective bargaining agency. Accordingly, the undersigned will recommend that the respondents disestablish the Association and each of the chapters thereof, and withdraw all recognition from the Association or any chapter thereof as the representative of any of their employees, for the purpose of dealing with them concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. Under the facts found, contracts executed by the respondents with the Asso= ciation, constitute a part of the unfair labor practices The undersigned will recommend that the respondents cease and desist from giving, effect to each and every contract executed with the Association, or any chapter thereof as well as to any extension, renewal, modification, or supplement thereof and any, superseding contracts which may now' be in',force. ' Nothing herein shall be taken to require the 'respondents to vary those wages, hours, seniority, and other' such substantive features of their relations with the employees themselves, which the respondents have established in the performance of the contracts or as the said contracts have been extended, renewed, modified, supplemented or superseded , Upon the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAw 1. Oil Workers International Union and Oil Workers International Union, Local 346, affiliated with the Congress of Industrial Organizations, and Associa- tion of Petroleum Workers of the Standard Oil Company of Ohio, are labor 6 STANDARD OIL- COMPANY, AN OHIO CORPORATION 555: organizations, and Sohio Council Plan was a labor organization, within the, meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and administration of Sohio Council Plan and Association of Petroleum Workers of the Standard, Oil Company of Ohio, and contributing financial and other'support to them, the respondents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By interfering with, restraining and coercing their employees in the exer-- cise of the rights guaranteed in Section 7 of the Act, the respondents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. - 5. The respondents have not engaged in unfair labor practices by discriminat- ing in regard to the hire and tenure of employment of William Philpott. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the respondents Standard Oil Company, an Ohio Corpo- ration, Sohio Pipe Line Corporation, and Latonia Refining Corporation, their officers, agents, successors, and assigns, shall: - 1. Cease and desist from : , (a) Dominating or interfering with the administration of Association of Petro- lemn• Workers of the Standard Oil Company of Ohio, or with the formation or administration of any other labor organization and from contributing financial or other support to the said labor organization or to any other labor organization ; (b) Recognizing the Association of Petroleum workers of the Standard Oil Company of Ohio, as the representative of any of their employees for the purpose of dealing with the respondents concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment ; (c) 'Giving effect to each and every contract with the Association of Petro- leum Workers of the Standard Oil Company of Ohio or any' chapter thereof, or to any modification, extension, supplement, or renewal thereof, or to any superseding contract with it; (d) In any other manner interfering with, restraining, or coercing their employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining, or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following arTitinative action, which the undersigned finds will effectuate the policies of the Act: _ (a) Withdraw all recognition from and completely disestablish Association of Petroleum Workers of the Standard Oil Company of Ohio, as the representa- tive of any of its employees for the purpose of -dealing with the respondents concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment at all of their plants and operations; (b) Post immediately in conspicuous places throughout their various plants and operations, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to their employees stating: (1) that the respondents will not engage in the conduct from which it has been recom- mended that they cease and desist in Paragraph I (a), (b), (c) and (d)' of these recomendations; (2), that the respondents will take the affirmative action k556 DECISIONS OFNATIONAL LABOR RELATIONS BOARD set forth in Paragraph '2 (a) of these recommendations; and (3) that the respondents' employees are free to become or remain members of Oil Workers International Union, affiliated with the Congress of Industrial Organizations, and that the respondents will not discriminate against any employee because of membership or activity in that organization ; (c) Notify the Regional Director for the Eighth Region in writing, within ten (10) days from the date of the receipt of this Intermediate Report, what steps the respondents have taken to comply herewith. It is further recommended, that, unless on or before ten (10) days from the' receipt of this Intermediate Report, the respondents notify said Regional Direc- tor in writing that they will comply with the foregoing recommendations, the- National Labor Relations Board issue an order requiring the respondents to take the action aforesaid. i It is further recommended that the complaint be dismissed ' insofar as it alleges that the respondent Standard discharge William Philpott because of union or concerted activity in violation of Section 8 (3). As provided in Section 33, of Article II of the Rules and Regulations of the National -Labor Relations Board, Series 2-as amended, effective, October 14, 1942-any party may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Shoreham Building, Wash- ington, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record of proceeding (including rulings upon all motions or objections) as it relies upon, together with the original and four copies of a brief in support thereof. As further provided in said Section 33, should any party desire per- mission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days after the date of the order trans- ferring the case to the Board. Dated : November 16, 1942. WILLIAM E. SPENCER, Trial Examiner. 1