Phillips Petroleum Co.

In the Matter Of PHILLIPS PETROLEUM COMPANY and INTERNATIONAL UNION OF OPERATING EN GINEERS, ' AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR Case No. C-X243.-Decided March a 4, 1943 Jurisdiction : oil producing and distributing industry. Unfair Labor Practices Company-Dominated Unions: predecessor organizations : employee representation plan formed prior to the Act and continued thereafter without effective dises- tablishment; employee association formed when employees manifested an in- terest in an affiliated union, assisted by the use of company facilities, a check-off agreement, and contribution of refreshments, and continued with same repre- sentatives and officers following a change in name-successor organization : formed following organizational efforts of an affiliated union and discussions concerning the incorporation of predecessor association with same directors as those of predecessor; and granted a closed-shop contract. Dtscramanatton: discharge of employees pursuant to closed-shop contract with a dominated organization; charges of dismissed as to one employee. Remedial Orders : successor dominated organization disestablished and contract therewith, abrogated ; reinstatement and back-pay awarded. - DECISION AND ORDER ' On February 16, 1943, the Board issued the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order, attached hereto, in the above-entitled proceeding. Thereafter, the respondent and The 66 Association, Inc., herein called the intervenor, filed excep- tioris to the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order, and briefs in support of their exceptions. On March 9, 1943, oral argument was held before the Board, and the re- spondent and the intervenor participated therein. Thereafter, the intervenor filed a supplemental brief. The Board has considered the exceptions and briefs filed by the respondent and the intervenor and finds that the exceptions are without merit. , The Board hereby adopts the Proposed Findings of Fact and Proposed Conclusions of Law as its final findings and conclusions. ORDER - Upon the entire record in the case, and pursuant to Section '10 ,(c) of the National Labor Relations Act, the National Labor Relations 48 N. L. R. B., No. 56. 460 PHILLIPS PETROLEUM COMPANY 461 Board` hereby orders that the respondent,- Phillips Petroleum Com- pany, Bartlesville, Oklahoma, its officers, agents, successors, and iissigns, shall : 1. Cease and desist from : (a) In any manner dominating or interfering with the administra- tion of Phillips Plan of Employee Representation, Phillips Pipe Line ,Co. Employees Association, "66 Association,'' and "The 66 Association, Inc." or with the formation or administration of any other labor organ- ization, and from. contributing support to the aforesaid labor organi- zations or to any other labor organization of its employees; (b) Recognizing "The 66 Association, Inc.," as the representative of .any of its employees for the purpose of dealing with the respondent •concerning grievances, labor disputes, wages, rates of pay, hours of ^eniployment, or other conditions of employment; (c) In any manner giving effect to the contract of May 1, 1942, with "The +66 Association, Inc.," or to any modifications, extensions, supple- ments, or renewals of such contract; • (d) Iii any manner discouraging membership in International Union of Operating Engineers, affiliated with the American Federa- tion, of Labor, or in any other labor organization of its employees, by, discharging any of its employees or in any other manner discriminat- ing in regard to their hire or tenure of employment, or any term or -condition of employment; (e) In any, other manner interfering with, restraining, or coercing its employees in the, exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted .activities for the purposes 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 disestab- lish "The 66 Association, Inc.," as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, -or other conditions of employment; .• - (b) Offer to A. M. Cantwell and Charles M. Case immediate and full reinstatement to their fora' er or substantially equivalent posi- tions, without prejudice to their seniority and other rights' and privileges ; (c) Make whole the said A. M. Cantwell and Charles J\1. Case, for any loss of pay each'may have suffered by reason of the respond- ent's discrimination against him, by payment to each of them of a sum ,of money equal to that which he normally`wouid have earned as wages 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during the period from the date of such discrimination to the date of the respondent's offer of reinstatement, less his net earnings during .said period; - (d) Post immediately in conspicuous places throughout its offices, buildings, plants, pumping stations, and other places of ' employment in the pipe-line department of the respondent, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not en- gage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), (c), (d), and (e) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of this Order; (3) that the contract with "The 66 Association, Inc.," dated May 1, 1942, and any modifications, sup- plements, extensions, or renewals thereof, are void and of no effect; and (4) that the respondent's employees are free to become or remain members of International Union of Operating Engineers, affiliated with the American Federation of Labor, and that the respondent will not discriminate, against any employee because' of membership or activity in that organization; (e) Notify the Regional Director for the Seventeenth Region, in. writing, within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the respondent discriminated in regard to the hire and tenure of employment of Floyd Boltz be, and it hereby is, dismissed. MR. JOHN M. HousTON took no part in the consideration of the above Decision and Order. PROPOSED FINDINGS OF FACT PROPOSED CONCLUSIONS OF LAW AND PROPOSED ORDER Mr. Harry Brownstein , for the Board. Mr. H. H. Booth , of Kansas City, Mo., and Mr. Ed Waite Clarke, of Bartlesville. Okla, for the respondent. Mr. John H. LaRowe, of St. Charles, Mo., for the Union. Mr. J. Wirth Sargent, of Wichita, Kans., for The 66 Association , Inc., and 66 Association. ' Mary M. Persinger, of counsel to the Board. STATEMENT OF THE CASE Upon charges ,and amended charges duly filed by International Union of Operating Engineers, affiliated with the American Federation of Labor, herein called the Union, the National Labor Relations Board, herein called the Board, PHILLIPS PETROLEUM COMPANY 463 by the Regional Director for the Seventeenth Region (Kansas City, Missouri), issued its complaint dated January 31, 1942, against Phillips Petroleum Company, Bartlesville, Oklahoma, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), and (3), and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies ,of the complaint accompanied by notice of hearing were duly served upon the respondent, the Union, and upon "66 Association" and "The 66 Association, Inc." With respect to the unfair labor practices, the complaint alleged in substance (1) that on and after July 5, 1935, the respondent continued in operation and continued to dominate and interfere with the administration of Phillips Plan of Employee Representation, a labor organization herein called the Plan, which it had previously formed among its employees, and continued to contribute financial and other support thereto; (2) that on or about February 1, 1937, the respondent dominated and interfered with the formation and administration of Phillips Pipe Line Co. Employees Association, herein called the Association, and contributed financial and other support thereto; (3) that on or about August 7, 1940, the Association changed its name to "66 Association" and continued its operations under said name; (4) that on or about October 14, 1941, the officers of "66 Association" caused to be created "The 66 Association, Inc.," which was the successor in interest to "66 Association" ; (5) that "66 Association" and "The 66 Association, Inc.," were interfered with, dominated, and supported by the respondent; (6) that by various acts, including the check-off of dues, the coercive acts and statements of supervisory employees, and entering into annual working agreements with the above-named organizations, one of which agreements is now in effect, the respondent did further interfere with, dominate, and support said organizations ; (7) that on or about March 7, 1941, the respondent discharged Floyd Boltz because of his membership and activities in the Union and his efforts to free "66 Association" from the respondent's domination, interference, and support; and (8) that by the foregoing acts the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section,7 of the Act. On February 12, 1942, the respondent filed an answer, in which it denied that it had engaged in any unfair labor practices. On February 12, 1942, "66 Association" and "The 66 Association, Inc.," filed answers, in which they also denied that they had been dominated or interfered with by, or that they had received financial or other support from, the respondent. Prior to the hearing "The 66 Association, Inc.," filed a motion for a continu- ance and to fix dates and places for holding the hearing. The motion for a continuance was denied by the Regional Director.' Pursuant to notice, a hear- ing was held at Kansas City, Missouri, on February 12 to 14 and 16 to 20, 1942, before Robert M. Gates, the Trial Examiner duly designated by the Chief Trial Examiner. Motions to intervene, filed by "66 Association" and "The 66 Association, Inc.," were granted. The Board, the respondent, and the inter- venors were represented by counsel, and the Union by a union official ; all partici- pated in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. A motion by the respondent to require the complaint to be made more definite and certain was granted in part and denied in part. "The 66 Association, Inc.," filed a motion to consolidate this proceeding with that for a determination of representatives! This motion was denied. At the close of the 1 The remainder of the motion was withdrawn prior to the close of the hearing. "'The 66 Association , Inc.," had filed a petition in a representation case, XVII=R-417, which was dismissed by the Board prior to the hearing. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board's case and at the close of their respective cases both the respondenf and "The 66 Association, Inc," moved to dismiss the complaint. These motions were, also denied. At the conclusion of the hearing counsel for the Board moved to conform the pleadings to the proof. The motion was granted without-objec- tion. Applications for subpenas filed by the respondent and "The 66 Association, Inc," were not granted, as all necessary witnesses were available without their appearance being required During the hearing the Trial Examiner also made rulings, on other motions and on objections to the admission of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were committed The rulings are hereby affirmed. At the close of the hearing representatives of all parties participated in oral argument before the Trial Examiner. Thereafter counsel for the respond- ent and counsel for "The 66 Association, Inc.," and "66 Association" filed briefs with the Trial Examiner, while counsel for the Board submitted a letter dis- cussing certain issues in the case. On June 27, 1942, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon all the parties. He found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of 'Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Thereafter, on the basis of an amendment to the charge, filed by the Union; counsel for the Boaid on August 12, 1942, filed with the Board a motion to re- open the record in this proceeding. The Board granted the 'motion On September 24, 1942, an amendment to the complaint, accompanied by notice of further hearing, was issued and duly served upon all the parties. The amend- ment alleged that the respondent, pursuant to a contract with "The 66 Associa- tion, Inc," had discharged two named employees for the reason that they re- fused to join or to maintain membership in that organization, and that by such acts, and conduct the respondent had engaged in further unfair labor practices within the meaning of Section S (1) and (3) of the Act Pursuant to notice, the reopened hearing was held at Kansas City, Missouri, on October 6, 1942; before Peyton Ford, the Trial Examiner duly designated by the Chief Examiner: Trial On November 3, 1942, the Board ordered that no Intermediate Report be issued by the Trial Examiner in the further hearing; that, pursuant to Article II, Section 37^ (c), of National Labor Relations Board Rules and Regulations- Series 2, as amended, Proposed Findings of Fact. Proposed Conclusions of Law, and Proposed Order-be issued, and that, pursuant to Article II, Section 37, of said Rules and Regulations, the parties should have the right, within fifteen (15) days from the date of the said proposed findings, to file exceptions and a brief in support thereof ; and that the said parties should have the right, within ten (10) days from the date of the said proposed findings, to request oral argument before the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OP FACT I. THE I:USINESS OF THE RESPONDENT Phillips Petroleum Company is a Delaware corporation engaged in the produc- tion, refining, sale, and distribution of petroleum and petroleum products.' Directly, and through wholy owned subsidiaries, the respondent operates over 3,000 producing oil and gas wells in the States of Oklahoma, Kansas, Texas, i PHILLIPS PETROLEUM. COMPANY 465, Arkansas, New Mexico,. and Kentucky; 38 natural gasoline plants in the States, of Oklahoma, Texas, and New Mexico ; and 3 refineries located at Kansas City, Kansas ; Okmulgee, Oklahoma ; and Borger, Texas ; maintains over'1,300 miles of gathering and truck lines in the States of Oklahoma, Kansas, Texas, and Ar- kansas ; and owns or operates approximately 725 bulk stations and has' over 6,500 resale outlets in the States of Indiana, Illinois, Kentucky, Wisconsin. Minnesota, Iowa, Missouri, Tennessee, Arkansas, Texas, Oklahoma, Kansas, Nebraska, Colorado, and New Mexico. The respondent maintains distribution centers for liquefied petroleum gas in the States of Ohio, Michigan, New York, Massachusetts, New Jersey, Indiana, Maryland, Connecticut, Wisconsin, Rhode Island, and Pennsylvania. The principal office of, the respondent is located in Wilmington`, Delaware, and its operating offices are located in Bartlesville. Oklahoma, and New York City. Prior to July. 1, 1940, the respondent caused large quantities of petroleum and petroleum products produced by it to be distributed among the several States of the United States by Phillips Pipe Line Company, a wholly owned subsidiary corporation, managed and controlled by the respondent, and whose business, labor policies, and management were subject to and under the direction and control of the 'respondent On July 1, 1940, the respondent caused the dissolution of Phillips Pipe Line Company and caused the property and assets of said company to, be transferred to the respondent; and thereafter the re- spondent operated and is now operating the business previously carried on by Phillips Pipe Line Company, as a department of the respondent. This depart ment maintains and operates a gasoline, pipe line which runs from Borger, Texas, to East St Louis, Illinois, with a branch extending from Paola to Kansas City, Kansas, and is the only division or department of the respondent's business involved III this proceeding. During the year 1940 large quantities of materials used in the transportation and distribution of said petroleum and petroleum products, of a value of many thousands of dollars, were purchased by the respondent and Phillips Pipe Line Company and caused to be shipped by them from States other than the several ,States in which said materials were used. During the year 1941 approximately 16,248,926 barrels of petroleum and petroleum products were transported in interstate commerce by the respondent by'and through the pipe-line.pump sta- tions previously operated by Phillips Pipe-Line Company. As of February 18,• 1941, there,were 396 employees in the pipe-line division of the respondent. 1I. THE ORGANIZATIOxS INVOLVED International Union of Operating Engineers and "The 60 Association, Inc," are, and Phillips Plan of Employee Representation, Phillips Pipe Line Co. Employees Association, and "66 Association" were, labor, organizations within the meaning of Section 2 (5) of'the Act. A11 these organizations now admit or did admit to membership employees of the respondent's gasoline pipe-line department. III. THE UNFAIR LABOR PRACTICES A. Domination of, interference with. and support to the labor organizations; interference, restraint, and. coercion. 1.--The Plan and-the Employees Association In the summer of 1933 the respondent announced to its employees, that it had established the Phillips Plan of Employee Representation. The respondent's 466 ^ DECISIONS OF NATIONAL, LABOR RELATIONS BOARD subsidiary, Phillips Pipe' Line Company, adopted the Plan, and two joint councils were established after the employees in each station on the pipe line, except East St. Louis, Illinois, had voted to accept the Plan. W. S. Evans, an employee, testified without contradiction, and we find, that at the time the Plan was established at the Wichita, station E H. Lyons, division manager, made a speech in which he stated to the employees that "the Company would like to organize, keep the boys so they could deal with them personally;, keep other unions from coming in, or something to that effect." In January 1934 the respondent published and made available to each employee "The Employee's Manual" of the Plan. Under the Plan the management and the employees were to -be equally represented. Only employees who had worked for the respondent for 1 year or more were eligible to be employee representatives. Among others whose activities will be noted hereinafter, who served on the councils, were Wiley Williams, elected by the employees, and Norman Farrell, appointed, by the management. On the pipe line the councils of the Plan were not active and the organization soon became dormant. On August 2, 1934, A -W. Hubbell, president of the pipe- line company, in a letter to George Bunn, who was in charge of the Plan for the respondent, suggested the discontinuance of the Plan on the pipe line and stated, "I doubt very much if this plan has any value to the Phillips Pipe Line Company."' Shortly thereafter Bunn approved Hubbell's suggestion, and, so far as the pipe line was concerned, no further meetings were held nor were any grievances taken up under the Plan. The employees in general were not, however, informed by any official of, the pipe-line company that the Plan was being discontinued. These facts are undisputed. On-about March 1, 1937, after there had been discussions among the employees about joining a nationally affiliated union, Earl L. Reed, then superintendent of the Wichita terminal of the pipe-line company, told W. S. Evans, his assistant, that "some of the officials of the company wanted to have a meeting with the boys." Evans arranged for a meeting in the basement of his home, and notified employees at Wichita personally, and'at two nearby stations over the company telephones, of this meeting. Much of his activity was carried on during working hours. Hubbell and Reed attended the meeting and furnished the beer and food for a "Dutch lunch."', During the party President Hubbell told Evans that he would like to have the employees elect representatives from four specified districts along the pipe line, and that these representatives should ask the com-' pany for higher wages and shorter hours. He further stated that he "would like to draw a contract up and deal with the boys . .. rather than for some outsider to get in " He then asked Evans to notify as many employees of this plan as possible and find out how they felt about it. Hubbell's statements were made in private conversation with Evans, and he did not mention the matter of organization to any of the other employees, rejecting Evans' suggestion that he make,a speech, as he wanted to "keep out of it as much as he could." Evans, however, circulated among the employees present at the meeting and told them of Hubbell's plans for organization. Our findings as to this meeting are based upon the uncontradicted testimony of Evans, which we credit, as did the Trial Examiner. 8 Evans testified that he did not know who paid for the beer, and Hubbell was not asked about it in later appearances as a witness. In view of the respondent's acknowledged policy of furnishing food, beer, and cigars to the employees when meetings were held, it is a fair interence, and we find as did the Trial Examiner; that Hubbell supplied the beer and food on this occasion. 1 , 'PHILLIPS PETROLEUM COMPANY "'"' ' ^ 467. That evening after the meeting Evans-began a 1-man organizational campaign.` During the next feiv days he called all of the approximately, 20 stations on the 660-mile pipe line between Borger, Texas, and the Mississippi River near St. Louis, Missouri , on the company telephone 'Evans testified, "I called every employee on the,line that I could get ahold of." Some of these conversations were during working -hours. Although Evans told the employees of Hubbell's suggestions for their organization, their response was unenthusiastic. Evans reported this fact to Hubbell and Reed 'in the company office. He testified,_"I told Hubbell I could not, get,the,boys to-do,;nluch talking." Hubbell replied that he "could fix that" and indicated, that he would talk to some 'of the employees. When one of those present in the office mentioned the check-off system,'Reed voiced some doubt, but Hubbell,, Reed's superior, said, "We can have it" Reed told `Evans at this time; or shortly thereafter, that he had made arrangements for Evans to use the com- pany telephone when he needed it. These findings, also, are based on the uncon- tradicted and credible testimony of Evans.' - -Thereafter a series of meetings was held in the four districts along the pipe line, as proposed by Hubbell. The meetings were arranged over the company telephone.`, In most -instances- there were'representatives present from the three to five or six pumping stations in each district. At each meeting one or two of the employees were most active in explaining the purpose of the meeting and the details of what was proposed to be done. Although the record does not disclose precisely how each of these key employees was selected, it is a fair inference, and we find' as did the Trial'Examiner, that they were designated or requested by Hubbell or Evans to take the initiative in organizing and electing a representative from. their respective districts. Thus, Evans testified' that among other employ- ees he called and talked to were D H. "Sunshine" Wilkinson, John Earnest,'who became the representative from his district, and Wiley Williams, who had been ,a representative under the Plan. All three of these employees took active parts in the organizational meetings in their districts. T. J. Towry testified that he was notified about the meeting by Wilkinson over the company telephone while at work, and that ,it the meeting, - Well, Wilkinson seemed to be the speaker; he got up and started to make a speech at the meeting about organizing a union of our own and he said that he saw that some outside organization was going to come in and sign us up and he didn't think we needed anything like that and that we would be better off if R,e had.something of our own` and he had called Mr. Hubbell long distance and asked him if it was all right. Towry also testified that Wilkinson did not state what Hubbell's reply had been, but that "he was doing it." Wilkinson did not testify. We credit, as did the Trial Examiner, Towry's testimony. At each meeting a representative was elected, after the employees present had voted to adopt' the proposed plan of organization. The meeting at Wichita was held in the company garage during working hours, and the meeting in the Paola district,was also held during working hours. A. M. Cantwell testified without contradiction that with the knowledge of the chief engineer all four of the regular operators at the Paola station, in- cluding himself, attended -the meeting, although it was his shift, and he had to be relieved by an extra man. He also testified that he attended other meetings 4Evans testified without denial that at the time of these events he was acting superin- tendent at Wichita, and that shortly after his activities in oiganizing the employees he received an individual wage increase of $10 a month - John Eainest testified without denial that Evans directed Earnest to arrange for a meeting in his district, stating, "he didn't ask me, he told me." 521247-43-vol 45-31 468 DECISIONS- OF-NATIONAL. LABOR RELATIONS BOARD 'during his ;shift„ under , a similar, arrangement.. We : credit, -as did' the Trial Examiner, this testimony. ", ;. • - . 1r 1 ri . Shortly after the, organizational meetings the representatives from'all the four districts met in Wichita to draw up a-proposed ' contract- to submit to Hubbell.` Representative Boehm 's testimony concerning . the reason for this action -is reveal- ing; he stated. "we went- there to get a, bunch of notes-We heard. the company wanted to have a contract , or somebody, wanted- to have a . contract,: and 'they wanted us .to form some kind of'an organization and call the 'management,.and have a contract with them ." The representatives met on or about March 29, '19371- ,at H. G. Painter's house, where they were informed by Evans that Hubbell would meet with them at 8 o,'clock 'the next morning : Earnest had brought with him.-a copy of the contract ,then in effect at the Borger, gasoline plant , which he had ob- tained from a "representative ' in that plant, as-well,as another, contract which may'have ,been an , A. F..L. agreement.: Using these as models, the four represents atives drafted a proposed agreement . The following morning; March 30, 1937, they met- with Hubbell,- as arranged. r The'latter stated - that the agreement -they presented , would be a good one if they could get. him to . sign it. He did, not propose any form of agreement -himself, 'according , to the testimony - of Earnest. However,, in the form finh.lly, agreed upon, the provisions of the , agreement are virtually indentical with agreements, between the respondent and 'its employees at the' Okmulgee refinery and the Borger refinery. According to' its terms; the agreement was "between the employees of the Phillips Pipe Line Com- pany . . . who are represented by the undersigned duly authorized rep- resentatives and the Employer ,' Phillips Pipe Line Company." No:reference is made in this or succeeding, contracts to the Employees Association or any other labor, organization . Indeed, it could not'be said that there was an organization at the time of the signing of tjle agreement. Concerning the Okmulgee agreement„ the Board found in an earlier case ,that "the agreement was clearly one directly between the respondent and its employees as individuals , and not between the respondent and any labor organization of-,its "" employees -",' The 'similarity I be- tweeen the Okmulgee agreement and the pipe-line agreement does not end there, however ; most of the provisions are phrased alike, and the few differences are relatively unimportant . In referring to employees ' rights under the grievance procedure, which differs but slightly from the agreement here, the Board said is the Okmulgee case : - His [the employee's] 'choice of bargaining representative was thus re- stricted to the employees of the respondent ; he could not , if he wished, choose to be represented by a- bargaining agency or committee comprised of individuals who were not employees of the respondent . The inclusion in an agreement with the respondent , of such a restriction upon the employees', free choice of representatives , constitutes interference , restraint, and co- ercion by the respondent with the rights guaranteed to its employees by Section 7 of the Act, and we so find Moreover the agreement which, we have found above, was betweeen the respondent and its employees directly, in providing that the employees should not strike, restricted the employees in their right to self-organization and their freedom to engage in concerted activity, and thereby constituted interference, restraint and coercion by the 6 The four representatives were John Earnest from.Borger, representing the "West End" district, H G Painter of Wichita, representing the Wichita district, William Thompson of Kansas City, Kansas, representing the Paola ,district, and Andy Boehm of Leeton, Missouri, representing the Jefferson City district. '.'PHILLIPS ,PETROLEUM-, COMPANY - 469 , respondent with the rights guaranteed to its employees by Section 7 of-the Act, 'and we so find i After the conclusion of -the contract negotiations Hubbell bought dinner for the four representatives. " Early in the negotiations Hubbell had asked' these per- sons whether they represented a majority of the employees. They assured him that they did so, and two of them produced the signatures of employees to estab- lish their claim , The other 'two supplied no such evidence. -Although the -final draft of the'agreement was signed on that same day by the representatives, it was not until sometime later that the other two representatives supplied' the pipe-line company with evidence that they represented a majority of the employees in their respective districts. Beginning about April 1, 1937, although there was no provision in the- agree-ment regarding it, the respondent deducted monthly dues-as a check-off'for the Employees Association "'- 'from wages due members of the Association. No deduc- tions were made from wages due employees who did not authorize the check-off in writing. - - : On May 10,'1937; several weeks after Hubbell had suggested that the employees organize, the respondent circulated a letter to all its employees, including those in the pipe-line pumping stations. The letter, signed by Frank-Phillips, president of the respondent,', and, addressed-,to "Employees' Councilmen,", announced that the respondent was withdrawing from participation in the Plan'and "leaving the employees entirely -free to administer Employer-Employee relations by contact with the Management of the Company through their chosen, representatives." In conclusion the letter stated: In full accord with the Wagner-Act, as construed by the Supreme Court, the Employees have the right to initiate their own organization or Plan'for negotiating with the Company. Variou's field groups of Employees have recently entered into. Working Agreements with'the Company. These were negotiated througli' fellow work- •ers; chosen' as employees'"representatives in full compliance with 'the'Wagner Act. Such an approach, so initiated' by the Employees without any inter- ference, coercion, or restraint on the part of the Company, may be sustained by adopting some more permanent method of negotiating with the Company, from time to time,'in reference to all matters affecting working conditions and matters of mutual' interest. About 2 -months after the respondent. had announced its discontinuance of the Plan, and in conformance with Phillips' suggestion in the May 10 letter, the employees proceeded to adopt "some more permanent method of.negotiating with the Company* . . " Thompson; one of the representatives ,who ,had signed the agreement, drafted the bylaws of the "Phillips Pipe Line Co. Employees Associa- ,,tion." 9 Under the bylaws, the employees eligible to membership in the Employees Association were the same as those covered by the agreement, except that they were required to be permanent employees, i. e., employed for 6 months or more The bylaws also required that to be eligible as a representative an employee must 7Matter of Phillips Petroleum Co. and Oil Workers, International Union, Local No. 212, 23 N. L R B. 741. S Called thus only for convenience, since it appears that, aside from the organization' of the employees into four districts, as described above, the Employees Association- did not come into actual, existence until sometime later. 'The record, does not indicate just when or how this name was adopted. 4 470 DECPSIONS OF NATIONAL'' LABOiR 'RELATIONS BOARD be'a member of the Association and have been , employed by the Company for a year, be able to read and write English, and be a citizen of the United States10 The representatives were to hold office for , a year, and were to elect from among their number a president, a vice president, and a secretary -treasurer. - On July 1, 1937, a general wage increase was granted by the Company , but this was not the subject of negotiations with the representatives. From the record it appears that the life of the Employees Association was uneventful, except for the annual election of- representatives and the ensuing negotiations of the working agreements . The first agreement, discussed above, provided that it remain in force , until March- 1, 1938, with automatic annual renewal. , This practice was not followed , however, and each year , in' about the month of February, elections for new representatives were held . Thereafter the four representatives met ,with Hubbell and negotiated an agreement for the ensuing year. The agreements for the years 1938, 1939, 1940, and 1941 were substantially the same, with an increase in rates of pay being contained in the -1938 and 1941 agreements, and some elaboration on seniority provisions in,the 1938 , agreement, which were maintained in subsequent agreements . At these meetings it was customary , for Hubbell to purchase food, beer , and cigars for the representatives . In 1937, 1938, and 1939, and perhaps in 1940, the representatives were paid for time spent in attending meetings with management. Late in 1939 the respondent discontinued the check -off system because it , required too much bookkeeping. During , this entire time notices, of, district hmeetingst ,were posted on the bulletin boards in some, if not all, of the s,,tations in the respective districts. 2. "66 Association" and "The 66 Association, Inc." In August 1940 Hubbell called the four representatives of the Employees As- sociation then in office to a meeting in Wichita , where he told them that the subsidiary, Phillips Pipe Line Company, was being absorbed by the parent, Phillips Petroleum Company, and would operate as a department of 'the re- spondent. Hubbell asked what they intended to do ' about the name of the Em- ployees Association, and suggested that it be changed. Hubbell thereaft1er -remained while the representatives voted to change the name of the Employees Association to "66 Association " Hubbell also asked the representatives at this time whether the employees would not modify the eligibility requirements so as to admit line-walkers and maintenance men to membership in the Employees Association, but this suggestion was rejected by ,the employees . In the ensuing months; after meetings of employees had been held in the four ' districts, the new name and some amendments to the bylaws of the Employees Association were adopted. All witnesses who testified about this incident agreed that the only real change which occurred in the 'Employees Association was the change in name. In late December 1940, or early January 1941, the members of "66 Association" in `the Paola district voted to investigate the advantages of affiliation with a national organization . As a result, 2 C. I. O. representatives held a meeting in Ottawa, Kansas, which was attended by about 24 employees from nearby stations. A vote taken at this meeting was in favor of affiliation with the C. I. O. About the same number of employees were present at later meetings conducted by Kelahan, of the International Union of Operating Engineers ,, affiliated with the 10 This is the same as the requirement under the Plan There are other points of simi- larity as well. Thompson testified that he looked over the'Plan before drafting the 'bylaws. It does not appear, however , that provisions of the Plan were copied extensively. PHILLIPS PETROLEUM COMPANY 471 A. F. of L., on, about January 29, 1941. Two meetings were held by the A. F. of L. at this time, one in the evening and another the following morning. The employees at the evening meeting, with a few exceptions , signed a petition or application for a charter from the International Union of Operating Engineers. Within the next day or two the A. F. of L. held another meeting in Wichita and obtained more signatures to the petition. Three witnesses, W. S. Evans, T. J. Towry, and Norman Smith, testified as to conversations which they had at about this time with Norman F'. Farrell,'1 superintendent of the terminal at Wichita. Towry testified that the day after he had signed the petition referred to above Farrell asked him if he had attended the A. F. L. meeting the night before, and whether he had joined the Union. Towry replied that he had attended and had joined the Union. According to Towry, Farrell then "wanted to know what good I thought the Union was going to do us, and he said they never had done anybody any good, about all they cared about.was the dues and money paid into them, and he wanted to know what we were going to do if we got sick . . . He wanted to know what good it had done those boys in St. Louis and the Illana line, and I don't know about all he said." The reference to being sick referred to the company policy of paying employees for time lost because of sickness . This conversation lasted about an hour. . Norman Smith testified that a day or two after the union meeting at Wichita, where Smith and Billy Marks, an employee, had joined the Union, Farrell asked them if they had joined, and then told them that the A. V. L. "could draw a good picture." He asked them what good they 'thought the Union would do them, adding that he did not think it would help them any. According to Smith, Farrell talked to them for about 2 hours, stating, among other things, that the Union would cause trouble among the employees. He also referred to a strike of the employees in St. Louis as being detrimental to their welfare. Smith quoted Farrell as saying also that most of the members of the Union were Communists, and would not do the employees any good. W. S.. Evans, according to his testimony, also had a conversation with Farrell within 48 hours of the time he had attended the A. F. L. meeting at Wichita and joined the Union. Farrell asked Evans whether he joined, and said "he didn't see why the boys wanted to join up ; that the company was taking care of the boys all right." Norman Farrell was unable to be present at the hearing, but it was stipulated that if Farrell were produced as a witness he would testify that he did not remember making the statements attributed to him by Towry and Smith, but that he would not say he did not make them, except the statement that the Union's members are Communists and the statement relative to the Illana line; that he would testify that he did talk to the witnesses Towry and Smith about their union activities, and that he probably made statements of the same sub- stance as, those attributed. -to him, with the two exceptions above noted;. and that he told Towry and Smith at the time that he spoke solely as a friend and Pxpressed his private, personal opinion; and not that of "Phillips Pipe Line Company." It was also stipulated that Farrell would testify that, prior to the time of these discussions with the employees, he had been instructed by officers of the respondent not to discuss union activities with the employees, which instructions have not been modified, and that, so far as he knew, the above- mentioned matters did not come to the attention of the respondent until a charge was filed in this case. As the Trial Examiner did not have an oppor- 11 Also spelled Norman Ferrell in the transcript. -472 DECIISIONS`"OF'NATIO\^AI;,'I:ABOiR: RELATIONS BOARD -tunity • to' observe' the, demeanor ,'of Farrell • on, -the: witness stana, -'and, the stipilation admits that -he-probably did make, most of the statements attributed to him, the' Trial • Examiner did not feel warranted in, determining Farrell's credibility, wwith-respect to the two statements he would deny. having- made. Without reflecting upon the credibility of Towry and Smith, the.Trial Examiner found that Farrell did make the statements attributed to him, except those he would ,deny having made.' As the testimony 'of Evaus .vas unrefutedrand was not referred to in the stipulation, the Trial, Examiner further found-that Farrell made the statements attributed to him by Evans. He found further that Farrell's activities were attributable to the respondent, despite its instructions to Farrell. , We agree with these findings.'2 Early in February 1941,'after organizational activities by the C. I. 0. and A. F. L., as related above, Hubbell instructed the four district representatives of the "66 Association" to meet him in Wichita. In his summons Hubbell did not state the purpose of the meeting. The representatives met with Hubbell in Wichita on February 7, 1941. After some preliminary discussion of problems relating to the future operation of the pipe line," and some remarks about pro- posed changes in operation which would result in a decrease in employment, Hubbell offered the representatives a new agreement which -would provide for an increase in pay of $10 a month for the engineers and gaugers, and company seniority rather than pipe-line seniority, which had been the practice theretofore. At this time the existing contract had sonfe 3 months to run. The representatives 'declined to accept the contract at the Wichita meeting, as it had,been customary ,for newly elected representatives to*negotiate the agreement with'Hubbell and to obtain authorization from- the individual employees before they signed 'a new agreement. The old representatives therefore requested Hubbell to hold a meeting with 'the employees in each district and present the proposed new agreement to them. Hubbell agreed, and returned to the eastern 'end of the pipe line with Floyd'Boltz, the representative from that district, that evening, after requesting the other three representatives to arrange for meetings in their districts during the next few days. The following day Hubbell met with the employees from each of the stations in the Jefferson City district. This had been arranged through a telephone call from Hubbell -to Rasberry, the superintendent of the terminal in that city. The employees accepted the` contract. The same procedure was followed in the other three districts. C. R.- Musgrave, the re- spondent's vice president in charge-of transportation, joined Hubbell for these meetings. Though a substantial number of employees preferred pipe line-rather than company seniority, the contract was accepted, and it became effective March 1, 1941, superseding the previous•agreement, which did not-expire until May 1, 1941. The agreement was rejected in one district and was signed by only three representatives at Wichita on or about February 22, 1941.'} Our findings as to these incidents are based upon the undenied testimony of witnesses for the Board, which we credit, as did the Trial, Examiner. , , Shortly after the acceptance of the 1941 agreement Farrell told Evans that he had been talking about the Union while at work and' that he would have to cease doing so, and further, that lie would have to cease talking about any union, "both sides." `Evans testified, "He just talked to me about like a father would to a son. He told me what I would have to do, and that's what I done " 'Evans 12 H. J. Heinz Co. v N. L. R. B , 311 U. S •514 - - 3 One problem related to litigation under the Elkins Act, as a result of which the respond- ent might lose the pipe line 14 A month or more later it was accepted by the fourth district. - ?PHILLIPS PETROLEUM, COMPANY 473 characterized the talk as being ".pretty rough." 'Thereafter Farrell posted'a notice at the station embodying the instructions he had given Evans. In the intervening period Evans did cease talking about the Union, but continued to talk about the business of "66 Association,!' being a representative at the time. John Earnest; the superintendent of the Paola station, instructed the employees under him that they would.have to cease using the company telephone for anything but' company business, if they had been doing so, and that they would have to stop talking about unions and "66 Association" while on the job, or while on company property. While there is some indication that the instructions of Farrell and Earnest were not followed with respect to "66 Association," there is also an indication that some employees, at least, did not comply with the instructions strictly with respect to matters relating to the Union. Local 109 of the International Union of Operating Engineers, referred to as the Union herein, received its charter on March 1, 1941. Shortly thereafter John H. LaRowe, assistant international representative, in an exchange of correspondence with Vice-President Musgrave, sought to slave the Union recognized by the respondent as the exclusive bargaining agent of the employees of that part of the system involved in this case. Musgrave replied that the respondent had recently signed an agreement with representatives of a majority of the employees, which would not expire until May 1, 1942. He further stated that the company recognized the right of employees to "select their own bargaining agency and to change it at will," and'that'if-the Unidh was,tlfe choice of the majority the company would recognize it if the Union established that fact, but that it would in no event set aside the contract with "66 Association." The correspondence continued into the month of May, and mimeographed copies of the letters were mailed to individual employees by Musgrave from time to time during this period. 'Meanwhile, the Union had filed the charge in the instant case with the Kansas City Regional Office of the Board. Cyrus Slater, a Field Examiner in that office, made an investigation of the charge, during the course of which he interviewed a number of witnesses, some of whom were then active in the affairs of "66 Association." On March 13, 1941, and again on June 11, 1941, Musgrave sent letters to each employee in the pipe-line department. The first set forth the policy of the respondent with respect to union membership and is set forth below." The second stated : In order that you may be fully informed as to your rights and privileges under the National Labor Relations Act, a copy, of this legislation, as printed by the U. S. Government Printing Office, is enclosed for your information., On June 24, 1941, F. L. Griffith; representative of the "66 Association" from the Wichita district and secretary-treasurer of the "66 Association," sent a letter to all the employees, in which he stated that "some of the boys have been of the opinion that it might be advisable to incorporate our Association. We have consulted Jochems, Sargent & Blaes, attorneys, Wichita, Kansas, on this matter t is "Because of several questions by Pipe Line employees , you are advised as follows : The Management of Phillips Petroleum Company Hants you-to definitely understand its policy that your present or future employment is not and will not be affected by 'membership or non-membership in any union or other collective bargaining organiza- tion, either national affiliated or non-affiliated. You have' the absolute right to self organization, to foam, join or assist labor organizations , to bargain collectively through representation of your own choosing and to engage in concerted activities , for the purpose of collective bargaining or other mutual aid or protection, and your activities in relation thereto are entirely within your own discretion and should be determined entirely on a basis of your own desires without coercion or undue influence on the part of the Company, your supervisors, other employees or outsiders." ' 474 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD and they have advised us that the Association can beyincorporated or that it can continue to function as an unincorporated Association. It might be a'little better at a later date to incorporate, but it is not absolutely essential. The'Coun- ell, however, would like to have the advice of the individual members as to whether or not they desire to incorporate." Again, on July 29, 1941, Griffith addressed-a letter to the employees on the pipe line, stating, inter alga, "Further- more, the '66' Association is going to gain in strength because we intend to incor- porate. In a short time the -incorporation papers will, be prepared, the charter taken out and by-laws drawn. Your committee has authorized incorporation and feels that we will be in a better position if this step is taken." The letter con- cluded with a request that it be posted at each, station." -As indicated in this letter, Griffith did go to see Attorney J. Wirth Sargent' in April or May of •1941. Concerning his reason for calling upon Sargent, Griffith testified, "Some of the boys had the idea it would make us a stronger organization and just wanted to find out about having it incorporated." He also stated that there-had been talk of incorporation since the "66 Association" had been formed. Sargent took the matter under consideration, and about a month later, according to Vanscoyoc, "He told us that he could charge us a fee and-get incorporation papers for us, but he said that he advised against it. He said it wasn't a necessary procedure and that we could operate just as well without it." Griffith reported this to the other representatives and members - The intervenors contended that the intent df,the representatives to incorporate the "66 Association" had become quiescent after this advice from Sargent in May or June 1941, and that it was not revived until the Boards agent, Slater, began to - interview employees in about the month of August 1941 The letter of July 29 indicates a contrary intention. Also, Vanscoyoc testified, and the minutes of, the meeting so show, that,the matter, of incorporation was discussed at a district meeting of the ':66 Association" at Darrouzett, Texas, on August 4, 1941, this being prior to Slater's visit. In-August or September Griffith aild Vanscoyoc again. called on Sargent because, according to Griffith, LaRowe had been attempting to organize the employees and Slater "had been going up and down the line taking testimony in regard to the '66 Association.' " Griffith testified that Sar-, gent on this occasion advised "that the best thing for us to do was to form an entirely new organization and incorporate," and that Sargent told him "he would make all arrangements and get everything all ready, and then he would notify me' as to what he wished us as representatives or as instigators, you might say, of what he had in mind to do." Pursuant to notification, Griffith obtained leave of'absence and went to Sargent's office on about October 6, 1941 Sargent had prepared an application for a charter and suggested that Griffith take it from one end of the-pipe line to the other and obtain the signatures of all employees who desired to become members. The application for charter contained the name "The 66 Association Inc." Sargent also prepared for Griffith to take with him, in addition to • a. memorandum^of instructions, a waiver of notice of meeting of incorporators and a proxy for first meeting of incorporators, on both of which Griffith was to obtain the signatures of those signing the. application for a charter. i. After leaving the office Griffith drove'to Laverne, Oklahoma, where he met Vanscoyoc, and together they canvassed the employees on the pipe line between Laverne and Borger, Texas. Some of this solicitation occurred on company time Testimony of several witnesses indicates that both of Griffith's letters were posted on the bulletin boards, or were "passed ai ound" among the employees at some, if not all, of the stations. ` PHILLIPS PETROLEUM COMPANY 475 and property. Griffith testified, "I t6ok them [the incorporation papers]-to all ,the employees that I could contact -and told them, that we were forming ,a new organization; that this was a copy of the articles of incorporation, and also that this was a proxy that in case they could not be at our first meeting that they would' have a proxy vote there. But we requested that they be there-if possible." This solicitation continued as Griffith moved eastward and canvassed the em- ployees^ of: most, Fif, hot) all,,, of the stations. This very rapid trip required about week, during the course of which Griffith, according to his -testimony, drove between 1,200 and 1,500 miles. He returned to Wichita and then, went on to Topeka to file the articles of incorporation on the 13th of October, returning to Wichita the same day. Out of approximately 169 eligible employees, there were 93 signatures of employees on the articles of incorporation. On October 14, 1941, the first meeting'of incorporators and also of the board of directors was held. In addition to Vanscoyoc; Boehm, Griffith, and Cooper, who were the representatives and officers of the-"66 Association," there were mne other members present. The remaining charter members did not attend and were therefore represented by their proxies, Vanscoyoc, Boehm, Griffith, Cooper, and R. F. Higgins." The matters with which they were concerned were dis- cussed informally, and minutes were subsequently prepared by Attorney Sargent, at whose office they met, together with minutes of the meeting of the board of directors, held concurrently. At Sargent's suggestion, Vanscoyoc became tempo- rary chairman of the meeting-and Griffith temporary secretary. - The members then proceeded to divide the stations on the pipe-line into districts substantially the same as the four districts in the "66 Association." A fifth district was added, composed of maintenance men and line-walkers, as provided by the articles of incorporation. Vanscoyoc, Griffith, Cooper, and Boehm were'again elected "Direc- tors" from their respective districts. Ivan Sturgeon, an employee, was elected director from the fifth district. The directors then elected the officers, who were : -Vanscoyoc, president; Boehm,-vice president; and Griffith, secretary-treasurer- these being the offices that they held in the "66 Association " An execu- tive committee, composed of Vanscoyoc; Boehm, and Sturgeon, was also elected, after which the meeting adjourned until November 14. Arch Cooper testified that at this meeting he nominated Floid Lawton as a director, but that there was no second to the nomination, as Lawton and another member from his district were present and "they said they didn't want to make any change, so'they just left it that way." Sargent, attorney for the intervenors, asked Griffith while the latter was testifying, "wasn't my recommendation that we just meet it head-on' and use the same men because if it was otherwise they would state that they were merely stooges for the old-fellows?" Griffith responded, "maybe that's the way-- it'was." When asked as to discussions on the selection of directors, Vanscoyoc testified, "Well, the question was raised as to whether or not there would be any question as to us being a new organization, if some of the old officers were elected to renew. We asked'Mr. Sargent about that and he said, since we were into it, it would be O. K. to go ahead and use any of those older officers. So, it was unanimously agreed that I act as president of the council, Andy Boehm as vice president and F. L. Griffith as secretary-treasurer" In response to a question by Sargent about the election of officers; Griffith testified, "I believe you said that we would ask who we wanted for president; and someone suggested Mr. Van- scoyoc, and you asked was it agreeable to everybody, and so on down the line with the rest of the officers." The members of the executive' committee were likewise chosen in the same informal manner. - a 17 Ihg;ins' name is not otherwise mentioned in this proceeding. 476 DECIISIONS ,OF' NATIONAL-•IiABOR RELATIONS ; BOARD The adjourned, meeting was scheduled td-be held on' November,14. Griffith,, who still carried effective proxies from all other members, was the-only member.who, appeared.` He approved a form of,application for membership, and.,resolved that his'acts as secretary in determining the question of eligibility should be subject to the approval of the board of directors, and, thereupon adjourned, the meeting until -a later' date. 'This adjourned meeting was held- on December 8, again-in Sargent's office, with the five directors and officers present and, in addition, eight other employees. The meeting adopted amendments to the bylaws, which had ,been previously prepared and submitted to the board of directors. A resolution was also passed that the "Executive Committee" use its best efforts to procure amendments to, the working agreement dated February 22, 1941, and specified the desired amendments. Following, the meeting of "The 66 Association, Inc.," on December 8; above- -mentioned, a meeting of the "66 Association" was held immediately thereafter on the same day. Those attending were the four representatives and officers, Vanscoyoc, Boehm, Griffith, !and Cooper,18 as well as Sargent, their attorney. These employees had proxies authorizing them to dissolve the "66 Association,' -and "pro-rate the monies on hand 'between the members in good standing at a meeting to be held December 1, 1941 . . . and . . . any other business which may come before the meeting." 'B It was decided to dissolvve the "66 Association" -at the meeting, but, on'the advice of Sargent, it was specified that the dissolution would not become effective until May 1, 1942, the date on which the contract between the respondent and the."66 Association" expired. It'was also decided to iefund the-money in the treasury pro rata to all paid-up members in good standing. Thereafter Griffith prepared checks in the amount of about $1.60 for each member entitled to a refund. In his own district Griffith sent the checks for each station 'to 'someone at that station to distribute, or took care of the distribution, himself ; -in-others, Griffith sent the checks to the, repres entatives and asked them- to take care of the distribution in their own districts In the Paola district Cooper's wife addressed envelopes for the distribution of the checks to individual employees. She also included 'a note referring to "The 66 Association, Inc," though • not actually mentioning it by name. The text of the note was as follows : Please send your dues $2 50 to Griffin [sic] at Attica. This is $2 initiation fee and 500 dues for each month. Please cash this check and send your own or'money order to Griffin. Griffith testified in this 'regard, "I told them that I didn't- want them to send [the refund], back for dues; that I would rather they cashed those checks themselves." - On December 29, 1941, Sargent wrote to the respondent notifying it of the formation of "The 66 Association, Inc.," and asking for a meeting to discuss proposed -amendments to the agreement of February 22', 1941 On January 26, 1942, Hubbell, Musgrave, Ed Waite Clark, attorney, and S. S. Lerned met with Vanscoyoc, Boehm, Griffith, and Sargent in the office of the latter. , At the request of the respondent, the original copy of the articles of incorporation with signa- tures thereon was submitted to the respondent, together with six 'or seven addi- tional membership cards. These were inspected and temporarily retained by the respondent's representatives for the purpose of checking the signatures at its 38 As noted, above, all of these persons were directors of the "new" "The 66 Association, Inc' , 'B Double pt st ci irds, one addressed to the individual member and the other self-addressed to Griffith, had been mailed sometime earlier to all the members. The first card announced the meeting; the second card contained'the proxies, appointing the four represehtatives. PHILLIPS..PETROLEUM COMPANY 477, home office in Bartlesville. On April 8, 1942, the respondent and "The'66 Asso- ciation, Inc.," entered into a closed-shop agreement, which was to go into effect as of May 1, 1942, and which' provided, inter alia, that all employees then employed by the respondent must become,members of the aforesaid organization, within 30 days,, and that new. employees would be,•requ ired to oin that organization within 30 days after their employment. 3. Concluding findings with respect to the labor organizations The respondent established the Plan on the'pipe line to thwart the organization of its employees by any outside union. Once the Plan was firmly entrenched, however, it became; at least on the pipe line, a shadow organization, serving no apparent function except that for which it had been formed. In 1934 Hubbell obtained the respondent's approval for "discontinuance" of the Plan on,the pipe line, but he made no attempt to disabuse the employees in general of the idea expressed by Division Manager Lyons when the Plan was first formed, that "the company would like to . . . keep the boys so they could deal with them per- sonally, keep other unions from coming in' 9; nor, indeed, were the employees ever informed of Hubbell's so-called 'di'scontinuance" of the Plan. Although the respondent's activities in. connection with the Plan prior to, the passage of the Act did not constitute unfair labor practices, in view of these activities,, the passage of the Act in 1935 imposed a clear duty upon the. re- spondent. It should have taken immediate, unequivocal action to inform its employees that their: affiliation or non-affiliation with a' labor organization was a matter of indifference to it; and that the respondent neither favored the -Plan nor was,,hostile •to an outside union. In the absence of any such action by the r'spondent.,.its employees were not afforded the opportunity to start afresh in organizing for 'tile adjustment of their relations with the employer -which they must have if the policies of the Act are to be effectuated 20 Here the respondent took no steps whatever to inform the employees of its with- drawal of support from the Plan until May 1937, nearly 2 years after the passage ,of the Act. Then in Phillips' letter of 1937, the respondent announced that it would refrain from "further participation" in the- Plan, but by this time Hub- bell had already successfully dictated the organization of the pipe-line employees into a new dominated organization which was to become the Employees Associa- tion. Indeed, in his- letter Phillips referred to the working agreement recently signed by the representatives selected at Hubbell's suggestion and suggested that the employees adopt some "more permanent" method of dealing with the respondent. In March 1937, when the employees were again showing interest in an outside ,organization, President- Hubbell instructed them through Superintendent Reed and W. S .Evans,..to, form,four,destricts along the pipe line, elect. represonta- ,tives, and "ask the company for higher, wages and shorter hours." 'Evans, who was then acting superintendent at Wichita,, engaged in extensive activities to make certain that Hubbell's wishes would be carried out-and when he met with only a lukewarm response, Hubbell promised to "fix" the situation. There- after, under the leadership of key men in each district, representatives were elected and a contract drawn up. The agreement, as finally signed between Hubbell and the, representatives after they had gone through the motions of "negotiations," as well as the subsequent 'agreements, were almost identical with those between the respondent and others of its employees, -which we have 201V L R B v Newport News Shipbuilding and Dry Dock Company, 308 U., S. 241; see Western Union Telegraph Company v. N. L. R. B., 113 F. (2d) 992 (C. C. A. 2). I N 478 DECISIONS OF NATIONALi'-LABOE ' RELATIONS BOARD -held- invalid in an earlier case, and which we find equally invalid here, `for the same reasons. Thereafter, Hubbell, as he had promised earlier, voluntarily agreed to a -check-off of dues' This constituted potent support to the Association during its initial organizational'per' d. I k-'Yl ` Phillips' letter of-May 10, 1937, "disestablishing"'the Plan', contained a thinly veiled invitation from the respondent's- president-to' the','e'inployees to perfect their loosely knit organisation, and shortly thereafter,'bylaws were adopted'and the Employees Association formally c-ime into being. Some of the original ,organizational meetings of the Association as well as subsequent meetings were held on the respondent's property. Much'of the business of the Association was handled through the use of the company telephone which also had been made freely available to Evans in his original campaign to organize the Employees -Association While we do not regard the use of the company telephone, with .tacit approval by the employer, by employees for the discussion of matters of mutual interest as necessarily being a form. of company support to a labor organization, here the management set the example by having Evans undertake his,original campaign by the use,of telephone' From this the employees would be warranted in ui derstandmg that the management actually encouraged such use, Just as with the check-off, this method of communication supplied ,by the respondent, was effective in developing the organization and holding it together. But for these two forms of assistance, the, organization might well have disin- tegrated. Further support is also evidenced, by the' respondent's custom of providing free meals, .cigars, and beer for the representatives-and to the em- ployees at the time of meetings with company officials. The respondent's determination to maintain a servile and compliant labor organization, and Hubbell's frequent injection of him§elf into the affairs of the organization for that purpose is illustrated by the change of the name from "Phillips Pipe Line Co. Employees Association" to "66 Association." It was at Hubbell's suggestion that the name was changed although the record does not indicate that he actually suggested what the .new name should be. At about this time he also asked that the requirements for membership in the Employees Association be changed to permit the admission of line-walkers and maintenance ,men. While an employer has a legitimate concern with the appropriate unit for collective bargaining and therefore might discuss eligibility requirements with the representatives of the employees, this would not warrant Hubbell's strong interest in these changes Although -the name of the Employees Asso- ciation was changed, it continued essentially as the same organization. The representatives and officers were the same individuals as those who, had served in the Employees Association. The infirmities in the original organization were continued-and the change of name had no further significance than is expressed in that phrase. In January 1941, the employees: became interested in forming or joining.a labor organization affiliated with the American Federation of Labor. In the last days of the month, membership in that organization was expanding rapidly, and sometime in February it reached a substantial number. In spite of the fact that the working agreement then in effect did not terminate until May 1, 1941, about 3 months thence, 'Hubbell quickly moved to thwart the rapidly growing interest' in the Union and to protect "66 Association," which he had sponsored and controlled. Hubbell first offered the old representatives of "66 Association" a new agreement containing a $10 a month increase in wages. When this effort failed, Hubbell and Musgrave personally held meetings with the employees in each district and urged the adoption of the new agreement. 'PHILLIPS PETROLEUM COMPANY - 479 , It is not surprising that as a result of these activities by the respondent; the employees authorized their representatives to sign the proposed contract. A short time after Hubbell had secured the signing of the new agreement, the Union demanded exclusive bargaining rights, and was confronted by the respondent with its agreement, with "66 Association." It is significant also that not until-after this agreement was safely signed did the respondent forbid conversation among its employees about -either union and advise them of their rights under, the 4et. This act}on of course must be considered meaningless in view of the impediment which the dominated "66 Association" `and' the 're- spondent's contract with it, placed upon-the free exercise of such rights by' the employees The conduct of Farrell in criticizing the A. F. L, and the four employees who had, joined the Union, clearly evidences the ,respondent's hostility to an outside organization and constituted further support to the favored ""66 Association." The respondent and the intervenors contend that' whatever may be the legal status of "66 Association" and its predecessor organizations, "The 66 Associa- tion, Inc.," is not a successor to them but is a new and distinct corporate entity. free from any taunt adhering to the others. For the reasons discussed below we do not agree with this 'contention - The original, discussions about incQ,poratipn,„wereconcerned with., „the, actual. incorporation, of "66 Association " Although Sargent informed Griffith in June 1941, that this was not a necessary step, nevertheless as the organizational efforts of the A. F. L continued and the Board's investigation of the charge in this case began,, Griffith, fearing that "66 Association" might be disestablished by the Board, again sought Sargent's advice -in .September in company with Van- scoyoc, president of '66 Association." Sargent at this time suggested the forma- tion and incorporation of a "new" association. At the meeting of incorporators, Sargent advised that if persons other than the four representatives of "66 Asso- ciation" were elected as directors,or officers, the new persons so elected. would be regarded.'as.."stooges" for the representatives of„"66 Association." Asa result, the same four individuals were "elected" by themselves, as directors through use of the proxies they had obtained from all the other employees, except a few who actually attended the meeting and constituted only about 10 percent of the entire membership. They also elected a fifth director from the new district which had, been added. ' The directors then elected officers, three of whom held identical, offices in "66 Association " The executive committee was composed of two of these officers, the third member being the new director who represented the line-walkers and maintenance men composing the fifth district.. Four of the five directors of the "new" organization, using the proxies that had been f 1 1 1 GS, obtained,' met together as representatives immediately, following at meeting of the members and directors of "The 66 Association, Inc.," and voted to dissolve "66' Association" as of the termination date of the working agreement then in effect In spite of the fact that the working agreement was, regarded as being with "66 Association, the-directors, officers, and members present at a meeting of "The 66 Association, Inc," voted to attempt to obtain modifications, of the agreement then in effect. Pursuant to this plan, Sargent wrote to the respondent requesting a meeting to discuss proposed' amendments to the agreement, and thereafter a closed-shop contract was signed with the incorporated organization It is apparent from, the facts set forth, that "The 66 Association, Inc.," grew out of, and is a successor to, "66 Association;" and that the employees do not consider it otherwise. It follows that the respondent, by its failure to disestablish "66 Association" is legally responsible for the formation of "The 66' Association, 480 DECIISIONSOFr'NATIONAL-'LSABo RELA'TION'S BOARD Inc." and that that organization 'is subject to the same infirmities as its predeces= sors. There is ' here no break in continuity between the initial establishment of the Plan and the final incorporation of "66 Association " ; 2' at no time since the first organization was formed have the employees been free to exercise an uncoereed choice under the Act 22 We find that the respondent by the above-described course of conduct -interfered with the administration of Phillips Plan of Employee Representation, and with the formation and administration of Phillips Pipe Line Co. Employees Association; "66 Association," and "The 66 Association , Inc'," and contributed support thereto, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. Discrimination in regard to'hire and tenure of employment 1. The discharge of Floyd Boltz Floyd' Boltz, as a representative under 'the Employees Assocation and "66 Association" had signed ' the working agreements with the respondent for the years 1938110. In 1941, at the time new representatives were elected and- au- thorized to sign the agreement proposed by Hubbell , as discussed above, Boltz refused to be ,a candidate for reelection in his district. About March 1, 1941, Boltz, who had been advocating affiliation with an A. F. L. Union' for about a'year, arranged to have John J. LaRowe, an A. F. L. representa- tive, meet ' with the employees in Jefferson Cify. " At this meeting, Boltz signed a union application card and paid his dues. On the following dap; A . J. Kaullen, superintendent of the Jefferson City station, - asked Boltz about the . meeting. Boltz replied, "We done all right ." After some comment gaullen said, "I think you guys are crazier than hell . You have ' got the best goin*the employees associ- ation and are going to have to pay high dues ." Boltz apparently did not under- take an active campaign to 'solicit members, among the employees of his own station ; however, he testified, "I talked to John LaRowe, and I had, all, the answers, and if they asked me-anything about it I would answer them." Shortly after the conversation with gaullen, and about the 4th or 5th of March, Boltz made a trip - to two other stations to solicit members for the Union . ' While on this trip he talked to the chief engineer at one station. - - On March 6, when Boltz reported for work at the -tour change, Kaullen accused him of being late and reprimanded him. The undenied 'testimony was that it was customary for employees to arrive a few minutes early in-order to check the condition of the pump line with the man on duty. Although Boltz denied that he had arrived late, we deem it unnecessary to resolve this conflict. m Cf. Magnolia Petroleum Co. v. N. L. R. B., 115 F. (2d) 1007 (C. C. A 10 ), enforcing -19 N L R. B. 184. 22 N. L R B. v. Newport News Shipbuilding and Drydock Company, 308 U. S. 2141; N. L. R. B. v. Falk Corp., 308 U. S. 453 ; N. L. R. B. v. Bradford Dyeing Ass'n, 310 U. S. 318; International Association of Machinists v. N. L. R. B ., 311, U. S. 72; N. L. R. B. v Link-Belt Co, 311 U. S . 584 'See also Westinghouse Electric and Manufacturing Co. Y. N L R. B, 112 F. (2d) 657 ( C. C. A 2 ), affirmed per curtain, 312 U. S 600; Corning Glass Works V. N L. R.•B, 118 F. ( 2d) 625 ( C. C. A. 2 ) ; N. L R. B v. Brown Paper Mill Co., 108 F. (2d) 867 (C. C. A 5), cert. den ., 310 U. S. 651; In the Matter of New Idea, Inc. and Federal Labor Union, No. 21218, affiliated with the American Federation of Labor, 31 N. L R B. 196, and cases cited therein. • 23Although as previously indicated the respondent initiated the Plan, its activities in this respect occurred prior to the passage of the Act and accordingly did not constitute an unfair labor practice. ' Kaullen was called as a witness by respondent but was not questioned about this incident. 25 Change of tours is the time of changing the tour of duty, or shift change. PHILLIPS PETROLEUM COMPANY 481 On the following day, March 7, Boltz arrived several minutes before the shift change, which fact Kaullen noted according to his undenied testimony, with satisfaction but in silence. Boltz immediately began to work at some task and as Kaullen was preparing to leave the station a short time later, told the latter that he expected to be paid for the overtime he had worked. Kaullen replied that Boltz was not supposed to work when he came early, but merely to check on the condition of the pump line as a convenience to the man leaving, that it was the custom, and, that he would not be paid overtime. Boltz then stated that he would turn the matter over "to the Labor Board" and collect his overtime, whereupon Kaullen told Boltz that if he felt that way he could go home-that he was discharged. Boltz kept on working and shortly thereafter asked Kaullen to reconsider the discharge, but again Kaullen' told him to go home.2' Boltz left the premises and called Boehm, the representative in that district for "66 Association," and asked him to take up the discharge under the grievance machinery in the working agreement. The grievance committee investigated the discharge and reported its findings and recommendations as follows : "We talked to Mr. Boltz. and Mr. Kaullen. We asked Mr. Kaullen if he would please put Mr. Boltz back to work, and he refused but he said he would recommend him for`transfer to another station. Mr. Boltz would. not agree to the transfer as he expected to retain his position at Jeff. City. We talked to the other engineers at Jeff., City station and feel that Mr. Boltz is in the wrong and therefore in our,opinion :Mr. Boltz should accept a transfer- to avoid further trouble. If he will not accept the transfer we recommend that the case be referred to Mr. A. W. Hubbell." The respondent agreed to transfer Boltz if he would find someone who was willing to exchange stations with him. Boltz found a man was was willing to transfer, but due, in part at least, to difficulties in making satisfactory arrangements as to the exchange of houses, Boltz eventually refused to accept the transfer. The Trial Examiner found that Boltz was discharged because of his union membership and activity. We do not agree. We think it clear from the entire record that Kaullen discharged Boltz because he considered his conduct on the morning of March 7 Insubordinate. The respondent's offer to transfer Boltz to another station, not under Kaullen's jurisdiction, indicates it, was the dispute between these two men rather than a desire to eliminate union members, that motivated the discharge. Nor does the fact that Boltz threatened to go to the "Labor Board" to collect overtime, persuade us that his discharge was discrim- inatory. Although the Trial Examiner infers that Kaullen "must have under- stood that Boltz meant the Union and its members intended to utilize the Board and the Act for protection of their rights," we think such an inference unwar- ranted. Since this Board is not the proper forum for securing payment for over- time, we think it more logical to infer that Kaullen interpreted Boltz's statement merely as a threat to exert pressure to secure something to which Kaullen con- sidered he was not entitled, namely, payment for overtime work. In view of the conclusion reached above, we find it unnecessary to decide whether, as contended by the respondent and denied by Boltz, the latter referred to the respondent in opprobrious langauge at the time of his discharge; and further whether, as contended and also denied, Boltz was incompetent. We shall dismiss that portion of the complaint which alleges that Floyd Boltz was discharged because of his union membership and activities. ' Although there is some disagreement in the testimony of Kaullen and Boltz as to the particular language used by the participants , there is no substantial disagreement as to the main outline of the occurrences. 482, DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The discharge of A. M. Cantwell and Charles M. Case- , As stated above, the respondent and "The 66 Association, Inc." entered'into a, closed-shop contract which became effective on May 1, 1942 On June 8, 1942,, A. M. Cantwell and Charles M. Case were discharged by the respondent because they refused to become members of that organization. Since we have previously found that the respondent dominated- and interfered,, with the formation' and administration of "The 66 Association, Inc," it follows and we find, that the contract between the respondent and'that organization is' illegal and void ' The discharge of Cantwell and Case, pursuant to the provisions of this illegal contract is not privileged under the Act, but is in violation thereof.' ' We find that by discharging A. M. Cantwell and Charles M. Case, the respond- ent discriminated in 'regard to their hire and tenure' of employment, thereby encouraging membership in "The 66 Association, Inc.," discouraging membership in the Union, and interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE , iThe-activities of -the respondent set` forth,in:.Section.,Ill,zabove,.oecursingi,in. connection with the operations of the respondent described, in Section -I,, above, have a close, intimate, and substantial, relation to trade, traffic, and commerce among the several. States, and tend to lead.to labor disputes burdening and obstructing, commerce and the free. flow of commerce. V. THE REMEDY Having found that the respondent has engaged in, and -is engaging -in, -unfair labor practices, we shall order it to cease and desist therefrom, and to take certain affirmative action designed to effectuate the policies of the Act. We have found that the respondent has 'dominated, land interfered-with xthe, - administration of Phillips Plan of Employee Representation, and with the forma- tion and administration of Phillips Pipe Line Co. Employees Association, "66 Association" and "The '66 Association, Inc.," and has contributed support to these organizations. The effects and consequences of such practices constitute a continuing obstacle to the free exercise by the employees of their rights to self-organization, and to bargain collectively through representatives of their own choosing, and render "The 66 Association, Inc.," incapable of serving the em- ployees as a genuine collective bargaining agency. Moreover, continued recog- nition of "The 66 Association, Inc," onld" bej ob`sti'iictive of the ftee'exereise - by the employees of the rights guaranteed by the Act. Accordingly, we shall, order the respondent to disestablish and withdraw. all recognition from' "The 66 Association, Inc ," as the representative of any of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment and other conditions of employment 28 Having found that the respondent entered into a contract with "The 66 Asso- ciation, Inc." embodying recognition of this organization as such representative, and that such contract was the result of, and tends to perpetuate the effects of, 27International Assn of'Machinists v N L R B, 311 'U S 72, N L R B v Electric Vacuum Cleaner Co, 315 U S 68'i 1e Since as pointed out supra, "66 Association" was to be dissolved as of May 1, 1942, and the evidence at the second hearing'establishes that the respondent is now opeiatmg under a contract with the successor oigamziton, we assume that "66 Association' no longer exists as a representative of the employees for the parposes of collective bargaining Accordingly, we do not order the respondent to disestablish it PHILLIPS PETROLEUM COMPANY 483 the respondent's unfair labor practices, we shall order the respondent to cease and desist from giving effect to or performing any contract between the respond- ent and "The 66 Association, Inc.," relating to rates of pay, wages, hours of employment, and other conditions of employment, now existing, and to refrain from entering into, renewing, or extending, any contract with such representatives or organizations relating to such matters. However, nothing in our Order shall be taken to require the.riaspoudent, to vary -those wage, hour, seniority, or %thex.; substantive features of its relations with the employees which the respondent has established in the performance of the contract as extended, renewed, modified, supplemented, or superseded. Having further found that the respondent discriminated against A. M. Cantwell and Charles M. Case with regard to their hire and tenure of employment, we shall order the respondent to offer them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and to make each of them whole for any loss of pay he may have suffered by reason of the discriminatory discharge, by payment to each of a sum of money equal to the amount which-he normally would have earned as wages from the date of such discrimination to the date of the respondent's offer of reinstatement, less his net earnings' during said period. Upon the foregoing findings of fact, and upon the entire record in the case, the Board makes the following ; Conclusions of Law 1. International Union of Operating Engineers and "The 66 Association, Inc." are labor organizations within the meaning of Section 2 (5) of the Act. Phillips Plan of Employee Representation, Phillips Pipe Line Co. Employees Association and "66 Association" were labor organizations within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the adminlstration'of'Phillips' P an}'ofI' Employee Representation, and with the formation and administration of Phillips Pipe Line Co. Employees Association, "66 Association," and "The 66 Association, Inc.," and by contributing support thereto, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employment of A. M. Cantwell, and Charles M. Case, thereby discouraging membership - in a labor organization, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in. and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. "By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere.. SeeMatter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered as earnings. See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 521247-43-vol. 48-32 484' DECISIONS OF NATIO\'AL 'L'ABO'R RELATIONS BOARD " 6 The 'respondent has not discriminated in regard to the hire and tenure of ehiployznent of Floyd 'Boltz within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pur- suant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Phillips Petroleum Com- pany, Bartlesville, Oklahoma, its officers, agents,, successors, and assigns, shall': 1. Cease and desist from : A a) In any manner dominating, or interfering with the administration of Phillips,Plan, of Employee Representation, Phillips Pipe, Line Co. Employees Association, ':66.Association," and "The 66 Association, Inc," or with the forma- tion-or administration of any other labor organization, and from contributing support to the aforesaid .labor organizations or to any other. labor organization of,its employees; _ ,J b). Recognizing "The 66 Association, Inc.," as the representative of any of its, employees for the purpose of dealing with the respondent concerning griev- ances, labor disputes, 'wages, rates of pay, hours, of employment, or other conditions of employment;') (c) .In any manner giving effect to the contract of May 1,. 1942,-with "The 66 Association, Inc.,"' or to any modifications, extensions, supplements, or re- ,newals,of such, contract; (d) In any manner discouraging_membership'in International Union of Op- erating Engineers, affiliated with the American Federation of Labor, or in any other labor organization of its employees,-by discharging any-of its employees or in any other • manner discriminating in regard to their hire or tenure of employment, or any term or condition of employment; ' ,'(e)' -In any 'other manner interfering with, restraining, or coercing its em- ployees in the exercise of the right to self-organization , to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining, 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` "The 66 Association, 'Inc.," as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances , labor disputes, wages, rates of pay, hours of employment, or other conditions of employment ; (b) Offer to A. M. Cantwell, and Charles M. Case immediate and full rein= statement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges ; (c) Make whole the said A. M. Cantwell and Charles M. Case, for any loss of pay each may have suffered by reason of the respondent's discrimination against him, by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period from the date'of such discrimination to the date of the respondent's offer of reinstatement, less his net earnings during said period; (d) Post immediately in conspicuous places throughout its offices, buildings, plants, pumping stations, and other places of employment in the pipe line depart- ment-of the respondent, and maintain for a period of at least sixty (60) con- secutive days from' the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease PHILLIPS PETROI4EUM COMPANY 485 and desist in paragraphs 1 (a), (b), (c), (d), and (e) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of this Order; (3) that the contract With "The 66 Association, .Inc.," dated May 1, 1942, and any modifications, supplements, extensions, or renewals thereof, are void and of no effect; andz(4) that the respondent's employees are free to become or remain members of International Union of Operating Engineers, affiliated with the American Federation of Labor, and that the respondent will not discriminate against any employee because of membership or activity in that organization ; (e) Notify the Regional Director for the seventeenth Region, in writing, within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT ie FURTHER onDE W that the complaint, insofar as it alleges that the respondent discriminated in regard to the hire and tenure of Floyd Boltz be, and it hereby is, dismissed.