The Pure Oil Co.

In the Matter of THE PURE OIL COMPANY (HEATH REFINERY) and OIL WORKERS I` TERNATrION AL UNION (C. I. 0.) Case No. 8--C-1750.-Decided December 16, 1947 Mr. Richard C. Swander, for the Board. Messrs. Ben A. Harper and Allen C. Hutcheson, Jr., for the re- spondent. Mr. Lindsay P. Walden, of Fort Worth, Tex., and Mr. William V. Flower, of Toledo, Ohio, for the Union. DECISION AND ORDER On November 25, 1946, Trial Examiner Sidney L. Feiler issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the respondent filed ex- ceptions to the Intermediate Report and a supporting brief. Oral argument, originally granted, was subsequently cancelled, at which time the parties were notified of a further opportunity to file a supple- mental brief or written argument setting forth the matters which would have been covered in the oral argument. The respondent filed a written brief in lieu of oral argument. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs of the respondent, and the entire record in the case, and finds merit in the respondent's exceptions. 1. (a) The Trial Examiner found that the respondent violated Sec- tion 8 (1) of the Act in that Superintendent McPherson, in a confer- ence with representatives of the CIO and the Independent sometime in 1943, orally promulgated a rule prohibiting electioneering on behalf of unions on company property. At the hearing there was a conflict in the testimony as to what McPherson said at the conference. Mc- 75 ^T. L. R B., No: 64. 539 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pherson and the two Independent representatives at the conference testified that the rule, as announced by McPherson, was restricted to working time of employees. John Hickman, a CIO representative who was present, testified that McPherson stated that there was to be no electioneering on company property. Lionel Gartside, the other CIO representative who attended the conference, did not testify. As we have repeatedly held, a rule prohibiting union solicitation on company property violates the Act insofar as it applies to em- ployees' non-working time. However, because of the following con- siderations, we are of the opinion that the evidence in this proceeding does not support the Trial Examiner's finding as to, the scope of the rule. Although employees engaged in union solicitation in the plant during non-working time with the knowledge of the respondent, the evidence does not establish that the rule was ever enforced to ban such activity. While Hickman testified positively as to the scope of the rule, we are of the opinion, and find, in view of the qualifying testi- mony of the other participants in the conference, that Hickman must have misunderstood the import of what McPherson said. Accord- ingly, we are of the opinion, and find, that the evidence does not estab- lish that the rule prohibited solicitation during the employees' non- working time. (b) The Trial Examiner found that the respondent violated Sec- tion 8 (1) of the Act in that Assistant Soperintendent Cooper told employee Wilson Bradford, in reply to Bradford's inquiry as to whether his work was satisfactory, that Cooper understood that Brad- ford was engaged in inviting employees to union meetings and that management would not permit union activities in the plant. The Trial Examiner regarded Cooper's statement to Bradford as unlaw- ful because, in the Trial Examiner's view, Cooper indiscriminately proscribed Bradford's union activities during non-working as well as working time. We do not agree. Bradford was speaking to Cooper about his work, and this discussion occurred during working time. Bradford had engaged in union activity during working time. In view of these circumstances, and the further fact that the record does not disclose any instance of disciplinary action arising from solicita- tion during non-working time, we are of the opinion that the record does not warrant the inference that Cooper had reference to Brad- ford's non-working time. (c) The Trial Examiner found that the respondent violated Sec- tion 8 (1) of the Act in that R. B. Ewing, an assistant foreman, asked employee D. J. McCullough whether employee Lionel Gartside, who was wearing a union button and who had been talking to McCullough THE PURE OIL COMPANY 541 during working hours, talked about the Union in their discussion. The Trial Examiner concluded that such conduct was unlawful be- cause, in his view, Ewing sought to enforce the respondent's non- solicitation rule in a discriminatory fashion against only one of two rival unions in the plant. We do not agree that Ewing acted discrimi- natorily because there is no evidence that the other labor organization engaged in solicitation in violation of the respondent's non-solicitation rule. Inasmuch as the conversation between McCullough and Gart- side took place during working hours, we regard Ewing's conduct as no more than an attempt to enforce the respondent's rule banning union solicitation during working time. (d) The Trial Examiner found that the respondent violated Section 8 (1) of the Act in that, in February 1946, Supervisor Evans of the respondent's Motor Transport Division (1) told employee Yates, "if the Union comes in we will close it down," and (2) questioned em- ployee Willing concerning a union meeting which Willing attended. At the hearing the respondent objected to introduction of testimony upon which these findings are based on the ground that Evans and the two subordinate employees involved were Motor Transport Repair Shop personnel and not Heath Refinery personnel, as the record dis- closes, and that the complaint is limited in its allegations to unfair labor practices engaged in by Heath Refinery personnel at Newark." The complaint, in its caption and body, describes the respondent as "Pure Oil Company (Heath Refinery)." In describing the respond- ent's business, the complaint refers to the refinery at Newark as "the Plant." The specific 8 (1) allegations of the complaint are couched in general language and speak broadly of unfair labor practices of "the respondent." At the hearing the Trial Examiner overruled the objection, and in his Intermediate Report he justified his ruling on the grounds (1) that the allegations in the complaint are not restricted to the operations of the refinery division, and (2) that the conduct of a Motor Transport Repair Shop supervisor, although taking place in a building separate from the Heath Refinery, might affect employees of the refinery as well. The Trial Examiner concluded that the unfair labor practices in question infringed "upon the organizational rights of the refinery employees" because the respondent's employees were 3 The Motor Transport Repair Shop is a part of the respondent's Motor Transport Division, an autonomous division, being in charge of a vice-president at company head- quarters in Chicago other than the one in charge of the Refinery Division, and having no connection in the field with the Refinery Division. The alleged unfair labor practices discussed in this paragraph were committed in a building at Newark located inside a fence enclosing the Heath Refinery, but separate from the refinery operations The two groups of employees were not subject to the same local management and there was no interchange of employees between the two divisions. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD being organized on a broad basis to include employees of the motor transport division as well as the refinery employees. However, there is no evidence in the record to show that the Union sought to organize the employees on the broad basis indicated by the Trial Examiner. These isolated statements were separated in point of time from, and were unrelated to, any other conduct considered in this proceeding. Under all the circumstances, we are not persuaded that upon a record such as we have in this case a finding that the respondent violated the Act should be based solely on these statements.2 2. The Trial Examiner found that the respondent discharged John Larimore in violation of Section 8'(3) of the Act. The respondent contended that he was discharged because he falsified entries on his time card and because of insubordination in refusing to perform a work assignment. The Trial Examiner found that Larimore had not been guilty of insubordination and that, although Larimore did not note his tardiness on his time card, his failure to do so did not motivate the respondent in discharging him. Rather, the Trial Examiner con- cluded that the respondent discharged Larimore because of his "mem- bership in the union." In reaching this conclusion, the Trial Exam- iner replied upon the following subsidiary findings which he made: (a) that the respondent did not discharge other employees who failed lo note tardiness on their time cards; and (b) that the respondent's supervisors had demonstrated bias against the Union. We are not convinced that the respondent unlawfully discharged Larimore. He was guilty of falsification of his time card, as charged . He made the entries in question in violation of the respondent 's rules . The record does not establish to our satisfaction that the respondent condoned any similar violation of comparable character. Nor, in view of our dismissal of the 8 (1) allegations in the complaint , are we persuaded that the respondent's supervisors demonstrated bias against the Union. Under the circumstances we are of the opinion, and find, that the rec- ord does not establish that the respondent discharged Larimore be- cause of his membership in the Union, as the Trial Examiner found. Based on the foregoing, we shall dismiss the complaint in its entirety. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the amended complaint issued herein against The Pure Oil Company (Heath Refinery), Newark, Ohio, be, and it hereby, is dismissed. 2 See platter of E. I DuPont de Nemours cC Company, 62 N. L R B. 816. THE PURE OIL COMPANY INTERMEDIATE REPORT 543 Mi. Ricluvi d C Swan der, for the Board. Messrs. Ben A Harper and Allen C. Hutcheson, Jr, of Chicago, Ill, for the respondent. Mr. Lindsay P. Walden, of Fort Worth, Tex., and Mr. Williamn, V. Flower, of Toledo, Ohio, for the Union STATEMENT OF THE CASE Upon an amended charge duly filed by Oil Workers International Union, Local 501, of fliated with the Congress of Industrial Organizations , herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Eighth Region (Cleveland, Ohio ), issued its complaint, dated June 17, 1946, against The Pure Oil Company ( Heath Refinery), Newark, Ohio , 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) 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, together with notice of hearing thereon, were duly served upon the respondent and the Union. With respect to unfair labor practices the complaint alleges in substance that from October 1943 the respondent has interfered with, restrained , and coerced its employees in the exercise of their lights under the Act by urging, persuading and warning its employees to refrain from joining or retaining membership in the Union ; prohibiting its employees from engaging in union activity on their own time, qubstioning its employees concerning the business of the Union ; disparaging the advantages to be gained by selection of the Union as their bargaining rep- resentative ; telling its eniplo} ees that the respondent has informers within the rank of the Union ; threatening its employees with loss of work if the Union became their bargaining representative ; informing its employees that it did not desire them to choose the Union as their bargaining representative ; suggesting to leaders of the Union that they quit their jobs; threatening to close the plant if the Union were successful in obtaining a majority ; and discriminating against adherents of the Union in assignment of work shifts. The complaint further alleges that the respondent , on or about February 24, 1945, discharged J. B. Larimore and thereafter failed and refused to employ him because of his union activities. In its duly filed answer, dated July 1, 1946, the respondent admits certain jurisdictional allegations in the complaint , denies the commission of any unfair labor practices , and alleges that Lariinore was discharged for cause. Pursuant to notice , a hearing was held at Newark, Ohio , between July 1 and 10, 1946 , before the undersigned , Sidney L Feiler, the Trial Examiner designated by the Chief Trial Examiner . The Board and the respondent were represented by counsel , the Union by counsel and a representative. Full op- portunity to be heard, to examine and cross -examine witnesses, and to intro- duce evidence bearing on the issues was afforded all parties. After the intro- duction of all the evidence , counsel for the Board moved to conform the pleadings to the proof as to formal matters . This motion, which was joined in by counsel for the respondent , was granted as to all pleadings. Counsel for the respond- ent moved to dismiss the complaint for lack of proof and decision was reserved thereon The motion is disposed of by the findings, conclusions, and reconi- mendations herein . Counsel for the Board and the respondent presented oral 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD argument. Opportunity then was afforded all parties to file briefs. A mem- orandum was received from counsel for the respondent. A letter, in the nature of a summation, also was received from the dischargee. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent is an Ohio corporation having its principal office and place of business in Chicago , Illinois. It is engaged in acquiring and developing oil lands and the production , refining, distribution , sale and transportation of petroleum and its related products through numerous States of the United States, including Ohio, Michigan , West Virginia , Texas, and Oklahoma. The respondent owns and operates a refinery at Newark , Ohio, where it manufac- tures gasoline, fuel oil, kerosene, oils, gas, and other petroleum products. The products of the refinery are distributed in approximately 10 States. In the course and conduct of the respondent 's business and operation of the refinery at Newark, Ohio , (known as the Heath Refinery ), during the calendar year 1945, crude oil valued in excess of $500,000 was purchased and transported by the respondent , of which approximately 75 percent was shipped to the re- finery from points outside the State of Ohio. During the same period, the respondent manufactured , processed , sold, or transported finished products valued in excess of $500,000 , of which approximately 20 percent was shipped to points outside the State of Ohio . The respondent admits that at all times here relevant it has been engaged in commerce within the meaning of the Act. H. THE ORGANIZATION INVOLVED Oil Workers International Union, Local 501, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. History and background On October 21, 1943, the Union filed a petition with the Board requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Act. Pursuant to a stipulation entered into by the respondent, the Union, and Oil Refinery Employee Independent Association, herein called the Independ- ent, a Board-conducted election was held on November 5, 1943. The Union filed objections to the election. After a hearing thereon, the Board issued its Deci- sion and Order dated June 19, 1944, in which it found that the respondent herein had engaged in a course of conduct which prevented an expression by its employees of their free and uncoerced wishes as to representation' The Board set aside the election and stated that it would direct a new election "at such time as the Regional Director advises us that circumstances permitting a free choice among the employees have been restored." On November 4, 1944, the Board issued a Supplemental Decision and Direction of Election! After noting that the Regional Director had advised it that a new election could appropriately 156 N. L. R. B. 1531. 2 59 N. L. R. B. 58. THE PURE OIL COMPANY 545 be conducted, the Board directed that the Regional Director conduct an election among the respondent's employees in a described unit. The election was conducted on December 1, 1944. The Union filed objections to this election also, but withdrew them in January 1945. On January 24, 1945, the Board certified the Independent as collective bargaining representative for a unit of production and maintenance employees at the plant. John R. Larimore, the dischargee in the instant proceeding, was discharged on February 22, 1945. On February 26, 1945, the Union filed its original charge alleging that the respondent had been guilty of unfair labor practices. The Regional Director, on May 13, 1945, advised the parties by letter that the charge had been investigated, that further proceedings did not seem warranted, and that he was refusing to issue a complaint. On May `17, 1946, the then Regional Directors notified the parties by letter that a supplementary investigation had been conducted, that he had concluded that the issuance of a complaint was justi- fied, and that appropriate action was being taken. A complaint subsequently was issued as heretofore related. B. Interference, restraint, and coercion 1. Introduction The testimony submitted by the Board in support of its allegations of inter- ference, restraint, and coercion dealt with the acts and conduct of certain super- visory employees and the promulgation of certain rules. In several instances the Board offered testimony of matters occurring prior to the first election, held on November 5, 1943. Counsel for the Board took the position that he did not rely on events prior to November 5, 1943, for proof of any independent violations of the Act, but relied on them solely as background or explanatory material for later events. Counsel for the respondent contended that testimony as to acts and conduct prior to the second election held on December 1, 1944, should not be considered in view of the Regional Director's determination after investigation that circumstances permitted a free choice among the employees and his recom- mendation of an election. Counsel for the respondent further contended that events prior to the hearing on objections to the first election, which hearing was held on February 15 and 16, 1944, should not be considered. On the other hand, counsel for the Union argued that except for those issues which were specifically litigated in the prior hearing all occurrences regardless of their date were mate- rial and relevant, and should be evaluated in this hearing The undersigned rejects the contentions of the respondent and holds that the doctrine of estoppel is not applicable." Testimony as to events occurring after November 5, 1943, has been considered herein in the making of findings Testi- mony as to events prior to that date has not been made the basis for any of the findings herein, but has only been used where necessary to shed light on subsequent acts and conduct. 2. Specific acts of interference, restraint, and coercion C. W. Cooper C. W Cooper, at all times relevant, was assistant superintendent of the re- finery and next in the chain of supervision after E E McPherson, superintendent. 3 In the interim, between May 13, 1945, and May 17, 1946, there was a change in Regional Directors 4 Al L R B. V. Phillips Gas cC Oil Company, 141 F (2d) 304 (C C. A. 3). 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wilson Bradford, an employee, testified that sometime after the hearing in February 1944 on the objections to the first election he had a conversation vtjith Cooper, that he had asked Cooper if his work was satisfactory, that Cooper had replied that it was, but that he (Cooper) understood that Bradford was engaging in union activities and inviting men to meetings, and that the management would not permit union activities in the plant. Bradford testi- fied further that Cooper told him that lie learned of his activities through "the grapevine" On cross-examination, Bradford testified that he had talked about the Union, both on his own time and during working hours, but that Cooper Aid not indicate whether he was referring to working or non-working time, or both. Cooper testified that he had had a conversation with Bradford concerning his soliciting for the Union. He stated, however, that he had told Bradford that lie was soliciting on the job and had reminded him that there was a coin- pany rule prohibiting soliciting on company time. He also testified that when Bradford asked him the source of his information as to Bradford's union activi- ties, he had replied that "things like that" were not infrequently brought to his attention. Cooper testified that he had received his information from the plant "grapevine" which he defined as plant gossip received from a variety of sources including foremen and other employees. The undersigned credits Bradford's testimony and finds that Cooper did not indicate to Bradford whether he was taking exception to his activities on non- working or working time or both. Having undertaken to warn Bradford, it was Cooper's duty to clearly indicate that only Bradford's activities during working time were the subject of censure and that his activities during non- working time were not being circumscribed Since he failed to do this, and Bradford would reasonably understand his admonition to apply to non-working as well as working time, the undersigned concludes that Cooper's conduct was violative of the Act. (In this connection see "The no-solicitation rule," dealt with hereinafter). While Cooper's own testimony indicates that he learned of Bradford's activi- ties by way of plant gossip or "grapevine," the evidence does not support the conclusion that the respondent engaged in surveillance. Frank Evans During the hearing the Board offered the testimony of two former employees who worked at the respondent's motor transport garage and whose testimony dealt with statements of their alleged supervisor. Counsel for the respondent objected to the receipt of this testimony on the ground that it was outside the scope of the complaint. It was stipulated that the respondent's business is carried on by three sep- arate divisions; a producing division, a refining division, and a marketing division ; that each division is headed by a vice-president who is responsible to the president and that these vice-presidents are not responsible to each other nor have they any control over each other; that each division functions separately, hires, disciplines, and controls its own employees, and purchases, manufactures, and controls all properties used by it, all subject to the direction of the presi- dent. It was further stipulated that at the Heath Refinery, as at other re- fineries, there is a superintendent in charge of refinery employees who has no duties as to employees of any other division. Counsel also stipulated that the marketing motor transport department is a department of the marketing division THE PURE OIL COMPANY 547 and is separate from the refining division Finally, it was stipulated that a marketing motor transport shop was located in a building on the premises where the refinery also is located although its employees were in the marketing and not -the refining division. Counsel for the respondent contended that by the terms of the complaint it was not required to defend activities other than at the Heath Refinery and operations there under the supervision of the refinery division. The undersigned does not so contrue the complaint. The complaint does identify the respondent as "The Pure Oil Company (Heath Refinery) " However, the allegations of the complaint are not limited to the operations of the refinery division. The under- signed overruled the objection and now reaffirms that ruling since the acts and conduct of officials on the same premises though in a separate building where the Heath Refiner? is located might well affect employees of the refinery as well.` Wendel W. Yates testified that he had been employed at the motor transport shop as a painter. He further stated that lie received his orders from Frank Evans who also lured new employees. Yates testified that he joined the Union in January 1946, and that sometime in February Evans said to him, "It the Union comes in, we will close it down." s Elmer B. Willing testified that he was employed at the shop as a mechanic and took his orders from Evans He further testified that he attended a meeting of the Union at the close of January 1946, or shortly thereafter, that about a week later Evans came up to him and a conversation took place concerning a union meeting which Willing described as follows: I was standing, and lie came over, and he stayed a little bit, and he said, "You attended a meeting and you blew up and walked out on it." I said, "What meeting?" He said, "Well, the one Larimore gave." I said, "No " I said, "I was there, and I stayed just as the next one." He said, "I niust have been informed wrong." I said, "You must have been." Then he said, "Well, I just wondered who was down there." 1 said, "That is something, Mr. Evans, that I am not going to tell. I like the boys I work with. And I am not talking." Willing stated that the conversation ended when he refused to tell Evans who attended the union meeting. The testimony of Yates and Willing, which was not denied, is credited. The undersigned finds that Frank Evans was a supervisory employee. The under- signed further finds that his conduct in questioning an employee concerning union meetings and his threat of a shutdown if the Union were successful in its campaign, were acts of interference and coercion and therefore violative of the Act. The evidence further shows that employees were not organizing according to the structure of the respondent's business, but as a unit which included em- ployees of the motor transport as well as the refinery division, and that violations of the Act at the motor transport shop therefore infringed upon the organiza- tional rights of the refinery employees as well. 6 Since counsel for the respondent claimed surprise the undersigned offered counsel the oppoi tunity to request defei ment of the testimony of witnesses on this point, or a post- ponement of cross-examination, or additional time later to prepare a defense. Counsel stated that he would pioceed, but might request additional time later in the hearing No such request was made "The shop was closed down March 1, but there is no contention that it was closed for other than business reasons 766972-48-vol 75 36 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD R. B. Ewtng At all times here relevant, R. B. Ewing was employed by the respondent as an assistant operating foreman. Employee Donald J. McCullough testified that in September 1945 Ewing came up to him while he was with other employees and said, "Pretty nice fellow, the only thing he wears a button." Ewing, while he testified on other matters, did not advert to McCullough's testimony which is credited. McCullough testified that Ewing spoke in a joking tone and the under- signed finds that Ewing's remark was not in violation of the Act. McCullough also testified, and the undersigned credits his testimony, that a few months after the 1944 election and about February 1945 Ewing, saw him talking to another employee who was wearing a union button and that afterwards Ewing asked him whether they had been talking about the CIO. As appears in more detail later there had been oral instructions issued in 1943 against Union solicita- tion. These instructions had never been rigorously enforced and McCullough testified, and the undersigned credits his testimony, that he understood there was no rule against talking about the Union. However, the respondent contended that the rule was in force and that there was nothing improper in Ewing's attempt to enforce it Shortly before this incident the Independent had been declared the winner of the 1944 election. There were two labor organizations in the refinery. Ewing's singling out the CIO as the object of his check, with no seeming interest in any activity that might be carried on for the Independent, was indicative of an attitude of bias and discrimination against adherents of the Union. This conclusion finds support in the uncontradicted and credited testimony of employee Wilson Bradford. Bradford had testified at the Board hearing held in February 1944 and was a known adherent of the Union. He testified that on May 31, 1946, Ewing asked him what the situation was at the Toledo refinery of the respondent. (There was labor trouble at this plant.) When Bradford an- swered that the men probably thought they were being mistreated, Ewing replied that all the trouble was due to the fact that the CIO was a "bunch of Communists " The undersigned finds that Ewing's disparagement of the Union and questioning of McCullough if the latter had engaged in conversation concerning the CIO, constituted interference with employees' rights guaranteed in Section 7 of the Act. The no-solicitation rule Sometime after the 1943 election McPherson called a conference of two repre- sentatives from each of the two competing labor organizations at the refinery, the Independent and the Union. McPherson told them that electioneering was being carried on, that the respondent was finding, itself powerless to stop it, and he warned the representatives that those activities must cease. The only point of disagreement among the witnesses is whether McPherson restricted his remarks to activities during working hours or whether he prohibited union activity any- time on plant premises. McPherson and the two Independent representatives, McDonald and Nicholas, all testified that the rule and prohibition were restricted to the working time of employees. Hickman, one of the Union representatives, testified that McPherson did not make such a distinction, but prohibited all electioneering on company property. All of the witnesses were in agreement that the conference was very short. There seems to have been the announcement by McPherson and no further dis- cussion of the rule. The undersigned from his observation of the witnesses credits Hickman's testimony and finds that the rule as laid down by McPherson THE PURE OIL COMPANY 549 prohibited union'or so-called electioneering activity on plant premises without distinction between working and non-working time. This rule was an invasion of the right of the employees and violative of the Act.' The rule does not appear to have been enforced rigidly, but on at least one occasion when Cooper told Bradford of it without distinction between working and non-working time, it was enforced . The rule, and its enforcement by Cooper in the Spring of 1944, were both violative of the Act. Conclusions The undersigned finds that by the acts and conduct of Cooper, Evans and Ewing, as afore-mentioned, by the promulgation and enforcement of its no- solicitation rule, and by the totality of such acts and conduct, the respondent has interefered with, restrained, and coerced its employees within the meaning of the Act. C. Alleged interference, restraint , and coercion C. W. Cooper Prior to the election on December 1, 1944, employee Homer D. Helser went hunting with Cooper. Helser fixed the time as sometime in November 1944. On that occasion , Helser testified , they had a discussion concerning the coming election . Helser's testimony on this point is as follows: As near as I can recall, on the hunting trip he wanted to know if there was any influence which I would use to help the matter in not having a Union. And I said, "Well, I don't know, exactly." I didn't bear out as to how I stood with it at all, either for or against the Union ._ That is the way it happened. And he said that he felt that it would further labor trouble-if any labor trouble happened out at the Heath Refinery it wouldn't be good out at the plant. And he would like to see the Company operating. That is his exact words , as near as I can recall. Cooper admitted that he and Helser had discussed the coming election. How- ever, lie denied that he had told Heiser to try to avoid having a Union at the refinery. He maintained that he had told Heiser to use his influence to avoid labor trouble at the plant, and that he would hate to see a plant shut-down that might evolve from labor difficulties. The testimony herein indicates that while the employees participating in the 1944 election had a choice between the Union, the Independent, and no Union, actually the contest was between the two labor organizations Only 3 of the 157 valid ballots were cast in favor of no union representation. Helser's testi- mony as to what was actually said is not clear. The undersigned credits Cooper's testimony and finds that his statements in this instance were not violative of the Act. Riley E. Roof, an employee, testified that in November 1944 and prior to the second election held on December 8, 1944, he went hunting with Cooper, that on this occasion Cooper asked him what he thought of the "political situation." Roof, inferring that Cooper was alluding to the coming election at the plant, ' N. L R B v Peyton Packing Co., 142 F. (2d) 1009 ( C C. A. 5 ), enforcing 49 N L. R. B. 828, cert den 323 U S . 730; Republic Aviation Corporation v. N. L. R. B., 324 U S. 793, affirming 142 F ( 2d) 193 ( C C. A 2 ), enforcing 51 N L. R B. 1186 , N. L. R. B. v Le Tourneau Company of Georgia, 324 U. S . 793, reversing 143 F. ( 2d) 67 (C. C. A. 5), setting aside 54 N L R. B 1253 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD replied that he did not know how the men would vote Cooper then said to huu, Roof testified, "Well, what do you think that they will gain by making a change, or having the CIO come in?" Root replied that he could not answer that question either. Cooper admitted that Roof's testimony was correct and that the conversation had occurred as stated He further testified that his purpose in questioning Root was to find out what the employees wanted and that he was not seeking to find out Roof's sympathies nor was he trying to influence his vote In view of the environment in which the statements were made as well as tenor of the statements themselves the undersigned is not persuaded that Cooper's conduct on this occasion amounted to a violation of the Act. Employee William L Wetzel testified that about a month before the 1944 election he was summoned to Cooper's office and that in a conversation that then ensued Cooper told him that it the C. I. O. won the election he, Cooper, would lose his job Cooper denied this testimony. He testified that he believed lie had a conversation with Wetzel concerning a pending change in Wetzel's work assignment, that during the conversation Wetzel remarked that he was a Union man, and Cooper replied that lie should vote as lie saw fit. Wetzel could not remember anything about the conversation other than the remark he related nor could he recall any of the surrounding circumstances .The undersigned credits Cooper's testimony P. E. AcPherson E E McPherson, at all times relevant, was superintendent of the refinery and in charge of operations. Employee Louis M Stargell testified that some time before the 1944 election he met McPherson and that the latter said to him, "Lou, remember there is an election coming up," to which Stargell replied, "Okay, Gene, I will take care of that." McPherson could not recall this incident, but did not deny that it took place. Stargell's testimony is credited Stargell further testified that prior to the first election, McPherson had re- minded him of the pending election and further told him, "We don't want the CIO in here, so you know wwliat to do" Stargell's testimony as to this incident is credited. Counsel for the Board did not contend that the 1943 conversation constituted an independent violation of the Act. However, he did contend that it explained the later remark and revealed an underlying purpose to urge Stargell to vote against the Union. McPherson's remark in 1944 was no more than a reminder of the coming election In the state of the record the undersigned rejects the con- tention of the Board and finds that McPherson's conduct in this instance was not violative,of the Act John E. Hickman had been employed by the respondent for 19 years The evidence indicates that Hickman had taken a prominent part in affairs in the Union for some time. He testified that in October 1945 he had had an argument with another employee, Rodinizer, over the latter's failure or refusal to attend a meeting of the Union and that during that discussion Hickman called Rodinizer a yellow dog. Approximately a week later, Hickman continued, McPherson sum- moned him to his office and, in the presence of 8 or 10 employees who Hickman judged were representatives of the Independent, told him that Rodniizer had complained that Hickman had called him a god-damned yellow dog Hickman admitted that the incident had occurred, but denied that he had used profanity. McPherson then remarked that it was not'very nice talk and sent him back to work. THE PURE OIL COMPANY 551 Several weeks later, Hickman testified, McPherson spoke to him again about the incident and claimed that he had used profane language Hickman replied that he did not like having had to appear before a group of the men. McPherson then asked him, Hickman stated, what he was going to do about it and when Hickman replied that he could do nothing, McPherson said, "You were going to quit here awhile back . . You can still quit if you want to " McPherson testified that the Itodmizer incident had been presented by the grievance committee of the Independent which then had a contract with the respondent, that after making an investigation he had concluded that Hickman had used profanity, and that when he had told hum so Hickman became angry. It was then McPherson testified that he had told Hickman lie could quit if he wanted to do so. The Board contended that McPherson made his suggestion in an effort to get rid of a known Union leader. However, it is not denied that in February 1945, when Larimore was discharged, Hickman had told DlcPhen son that he was quitting, but remained when McPherson suggested that he continue. Such action is incompatible with any design to force Hickman to resign. The testimony indicates that at the time McPherson told Hickman he could quit if lie wanted to, both men were angry, and were saying things that they would not have said in calmer moments. The undersigned finds that McPherson's conduct was not in violation of the Act. "Red" Armstrong Hickman testified that sometime in April 1945, he had a conversation with another employee whom he identified as "Red" Armstrong He described the conversation as follows : Well, he and I happened to be in the storeroom at the same time And he referred to my button, and said: "What are you wearing that button for?" I said, "Because I pay two dollars a month to wear it in the first place, and in the second place, I am not afraid to wear it " And he mentioned in regard to the marking on it, "What is those markings?" It had a few stripes on it. I said, "I don't know, sir." He said, "You better find out what you are wear- ing before you wear it." [Hickman was wearing a union button at this tune.] This testimony, which was not contradicted, is credited. The respondent while not challenging testimony of the conversation itself urged that Armstrong did not have such status that the respondent would be bound by his statements. It appears from McPherson's credited testimony that Armstrong is an assistant chief clerk handling personnel and other special assign- ments. An important part of his job is to interview applicants for positions, obtain written applications, and investigate them. While he does not make the -final decisions on the hiirng of employees, it was and is part of his duty and he does make recommendations which are given weight. The undersigned finds that Armstrong was part of the managerial hierarchy. There is no testimony that Armstrong made any remarks about the Union other than those attributed to him by Hickman. The undersigned finds that those re- marks were not violative of the Act. J. L. Sullivan Homer Helser was employed as a guard prior to the election held in December 1944. He testified that about 2 days before the election Sullivan telephoned him at the plant and asked him to visit Sullivan at the latter's home on his way from work. When Helser refused the invitation on the ground that it was late at night and he would lose too much time making the visit, Sullivan replied, ac- A 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cording to Heiser, "That is so . . . I just wanted you to know how I felt on what is coming up in a couple of days now." Heiser testified that he understood that Sullivan was referring to the election. Heiser did not visit Sullivan and there is no evidence that Sullivan and Heiser actually did have a discussion con- cerning the election. Sullivan testified but did not deny Helser's testimony as to the conversation, and that testimony is credited. Extensive testimony was adduced on the disputed question as to whether Sulli- van had supervisory status. The undersigned finds it unnecessary to resolve the conflict in testimony on this point, since, assuming that Sullivan had supervisory Status, the undersigned is nevertheless convinced that there is nothing in his telephone conversation with Helser which is violative of the Act. The alleged discrimination in assignments J. B. Fluharty was employed as a welder at the refinery. He testified that in July 1945 he was a union member and joined a Union picket line for 2 days and one night, that he was seen on that line by supervisory officials, and that thereafter until the following February he received no overtime calls except for one occasion, whereas other welders received more calls during the same period. It was agreed by the witnesses for the Board and the respondent that the re- spondent's policy as to overtime work for welders was to distribute that work as equally as practicable. E A. Hall was Fluharty's supervisor during the period and denied that there had been any discrimination against him. He testified that when occasions for overtime work occurred the work was distributed equally as far as possible. The respondent presented a chart as to the four welders in its employ showing their regular earnings and amounts earned from overtime and emergency calls for the period July 1945 to February 1946 It was stipulated that the chart was a correct record for the period covered. The chart records the overtime and emergency call record for the four welders as follows : Overtime Emergency calls Total Fluharty----------------------------------------------------- $61 48 0 $61 48 Little----------------------------------------------------------- '71' 70 $1'7'.94 89 64 Corbin--------------------------------------------------------- 99 84 42 73 142 57 Reynolds------------------------------------------------------- 114 84 62 15 176.99 It was further stipulated that Fluharty lost 1351/2 hours during this period because of sickness and accident. However 8 of those hours were lost before . July 1945, and an additional 4 hours were lost in January 1946 The corrected figure pertaining to this period is therefore 1311/2 hours. This loss of time by Fluharty was substantially more than that lost by the other welders. The chart shows that Fluharty did receive $61.48 in overtime payments, with Reynolds receiving the top payment of $114 84 As for payments for emergency calls, Fluharty received nothing as against the top payment to Reynolds of $62.15. As to this item, the respondent points to the fact that Fluharty was off duty by reason of sickness and accident on 2 days when Reynolds earned half of his total compensation for emergency calls. Hall testified that while an attempt was made to equalize the earnings of the welders differences did occur by reason THE PURE OIL COMPANY 553 of the fact that sometimes one or more of the men could not be reached when the respondent attempted to communicate with them. The chart shows that Fluharty did participate in overtime work. The under- signed credits Hall's testimony and concludes that the difference between Fluharty's extra earnings and those of the other welders were due primarily to his unavailability when such work arose by reason of sickness, accident, or other causes, and further finds that there was no plan to discriminate against him because of his union activities. Fluharty further testified that in November 1945 he had an accident, that when he returned to work he told Hall that his doctor had told him not to do any lifting or strenuous work, but that Hall assigned him to work where he had to lift steel and do some climbing He further stated that at that time two welders were assigned to easier work at the maintenance shop where there was no lifting or climbing to do. Hall testified that he knew Fluharty had to do light work and that he assigned Fluharty and another welder to an extensive job on which there was no rush, and that Fluharty was not expected to work more than he could. He further testified that men in the shop were expected to deal with all emergency repair work regardless of its nature. Fluharty admitted that he had never complained to Hall or requested a change in assignment The undersigned credits Hall's testimony and finds that there was no discrimination against Fluharty in his work assignments. In the Fall of 1945 there was some labor unrest at the refinery and strikes occurred in the oil industry For a time the respondent kept some men on a 24-hour shift at the refinery Employee Homer Heiser testified that he noticed that only non-union men were given these assignments He also testified that he did not know the size of the crew assigned nor everyone who worked on that shift. McPherson testified that men were assigned to extra shift work and that Hall and another supervisor were told by him to select the necessary number of men, but were given no further instructions. Hall testified he selected one man in each department for the extra work and that lie made the selection at random without regard to the union affiliation of any of the men. The evidence as to the union affiliation or lack of it of the men assigned to full-time duty was vague and indefinite The undersigned finds that the evidence does not establish any discrimination against union members in the assignment of this overtime work. D. The discriminatory discharge of John B Larimore 1 Larimore's employment history John B. Larimore was first employed by the respondent in 1928 and continued in its employ until his discharge on February 22, 1945. His first job was that of maintenance man. During the next 17 years he received promotions and wage increases, working successively as electrician helper, electrician second class, and electrician first class. At the time of his discharge he was receiving the top pay for his classification. In the summer of 1943, Larimore went to Boston, Massachusetts, for a course of study relating to his work. While there is disagreement among the wit- nesses as to whether Larimore was sent to Boston at his own request of whether the respondent suggested the program, it is not disputed that the respondent paid Larimore's expenses. 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McPherson and other supervisors characterized Larimore's work as fair up to 1943, and it is clear that the respondent had no serious fault to find with him prior to that time, in fact, his record of steady advancement over the 15-year period establishes that his work was satisfactory 2. Larimore's union activities Larimore testified that when he returned from Boston in the fall of 1943 lie found that the Union was organizing at the refinery and he joined He further testified that he attended meetings, spoke to others about the Union, and signed up more members than anyone else. In 1944, Larimore continued, he became president of the local union and held that post for most of the year. He also testified as a Boaid witness at the hearing held in Febru.ny 1944 on objections to the 1943 election. At some union meetings in 1944, Larinore stated, he advo- cated a strike in support of strikes at other plants owned by the respondent. Later in his testimony he admitted that the strikes at other plants had occurred in 1945, but maintained that the question of a strike had been discussed by the inen since 1943 In any case, there is no proof that the inter-union discussion of a strike was ever brought to the attention of management. The undersigned credits Lariniore's testimony as to the nature and extent of his union activities and finds that he had taken an active intei est in the Union since the Fall of 1943 and had been its official leader at the plant in 1944 While there is testimony that other einployees played important parts in the activities of the Union, the testimony indicates that Larimore had a dominant role and maintained liaison with the national leaders of the Union. 3 Larimore's wo.k record in recent years Several of Larimoie's supeivisois testified that for some time prior to his discharge they were dissatisfied with his work performance Since Larimore did electrical work lie was assigned to the maintenance division as distinguished from the operating division. His chief was E A Hall, general maintenance fore- man Hall testified that in the last 2 years of his employment, Larimore was inclined to loaf and talk too much Carroll E. White, assistant operating foreman, was Larimore's supervisor on those occasions when he worked on night shift. White testified that he received complaints from Paul Kerr, the only other electrician regularly doing the same work as Larimore, that Larimore was not doing enough work. White also testified that he received a complaint fiom in operating employee, Robertson, that lie needed more service from the instrument man on duty. These complaints, White stated, were received in September or October 1944. He then checked Larimore's work closely and concluded that he was not giving full time to his work, repri- manded him, and several weeks later reported the results of his check to Assistant Plant Superintendent Cooper. He denied that lie made his check because of any anti-union bias, but stated that he believed Larimore to be a member of the Union. Robertson denied making any complaint to White about the work of the instrument men His testimony is credited Kerr also denied making any complaint to White about Larimore's work but his testimony was evasive and marked by lapses of memory at important points. No weight is given to his testimony. However, it should be noted that Kerr, at the period in question, had no clear way of know- ing which of the work orders he received were left over by Larimore for Kerr and which were requests received after Larimore's shift, and therefore it is unlikely that lie would have made a specific complaint against Larimore. THE PURE OIL COMPANY 555 On a date which Laiiiuore fixed as July 20, 1944, Refinery Superintendent McPherson summoned Larimore to his office and, in the presence of Cooper, told him that he had been reported loafing and that that situation could not continue. Larimore testified that the incident took place, but further testified that imme- diately prior to the interview Hall had told him that his work was satisfactory, that when he relayed this information to McPherson, Hall was summoned; that when Hall arrived Cooper suggested to Hall that there was a difference between work and workmanship and that Hall assented. His testimony is credited Larimore admitted that it was his practice to talk to other employees, both on and off duty. However, he denied that he engaged in this activity to the detriment of his own work or that of other employees. He also testified that there had been no checking of his activities before he joined the Union, but that after he Joined a close watch was kept over him He testified that on one occasion in August 1944 he was told that Assistant Operating Foreman Bryant Ewing was looking for hun, that when he spoke with Ewing the latter told him that he had not wished to use the public address system to call him, but wished to find him himself, perhaps asleep.' He also testified to other instances when employees Stiff and Piper checked with him to make sure he had woik orders.' Other em- ployees testified that while they also talked on occasion while working they were not similarly checked. The undersigned finds that Larimore did some talking during working hours and consequently did waste time. However, although it is not possible to make any exact comparisons, other employees were also engaging in similar conduct. Undoubtedly as the election came near such talking increased. The undersigned is convinced that Larimore was subject to a stricter scrutiny than other employees and does not credit the denials that such action was not attributable to I:arimore's activity and position in the Union Ewing and White both testified that they knew of his union membership and the undersigned further finds that they knew or had reason to know his position of leadership therein. This awareness of Larimore's special position and the special treatment accorded him carried up the line to top management On October 16, 1944, Gen- ei al Maintenance Foreman Hall sent a letter to Keri, Larimore and Mason. the only tbiee employees doing electiical work, stating that a copy of an enclosed memorandum concerning work conduct, schedules, and responsibilities had been posted in the Instrument Shop and that they were to acquaint themselves with it and sign and return a receipt that they had read and understood the instructions The memorandum, which was admitted in evidence, purports to be issued to clarify prior instructions. It sets forth the shifts to be worked and detailed regulations governing working time. Larimore testified that he, Kerr, and Mason refused to sign the requested receipt because they were not given an explanation as to why it was issued. Hall testified that the purpose of the inemoi anduni was to improve efficiency and have a better mutual understanding as to duties and responsibilities of the 8 Ewing testified that lie knew Larimore belonged to the Union, but did not know how active Laiimome was The Board, in its decision on the objections to the first election, i 'lied, in part, on anti-union statements made by Ewing Theme also are findings in this report on activities of Ewing in violation of the Act ° Stiff and Piper were in the category of A-400 shift breaker Their principal duty was to substitute for operating employees who were unavailable They did vote in the December 1944 election However, as part of their duties they assisted opeiatmg foremen by transmitting orders to other employees, including maintenance men such as Larimore The undersigned finds that in the performance of this duty they had minor supervisory roles and that Larimore reasonably believed them to be supervisors. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD electricians." He also stated that receipts were required in order to establish that the employees had read and understood the memorandum. McPherson tes- tified that the letter was aimed at correcting misunderstandings as to work and to prevent loafing. Cooper testified to the same effect. Larimore testified that when he attempted to discuss the letter and memoran- dum with Hall the latter refused to do so. Hall's version was that he told Lari- more that the meaning was plain, but did not discuss the matter further with Larimore because it might lead to "labor complications" and that he was afraid that Larimore "would try to bring into the conversation something in respect to the Union." He further stated that he suspected that Larnnore had something to do with the Union, but denied that he knew of Larimore's leadership in the Union. This denial is not credited After the conversation with Larimore, Hall communicated with his superiors and the three employees were called before McPherson and Cooper and the latter read then the memorandum No discussion was had as to its underlying purpose and the employees still refused to sign receipts. On November 9, 1944, McPherson sent a letter to the Regional Director in which he stated: Due to unusual circumstances with which you are familiar surrounding the labor situation in our plant, and due to our desire to be strictly honest and fair in all matters, I feel that it is advisable to bring your attention to a matter dealing with the Electricians in our plant. A copy of a letter which it has been necessary to address to all three Electricians is being inclosed NNith this letter so that you may be familiar with the matter in case further action becomes necessary on our part. McPherson also testified as to his purpose in sending the letter to the Regional Director and in the issuance of the memorandum. He testified that he was not certain that Larimore was the leader of the Union group, but that it was well known that he was quite active, that he had been having trouble with Larimore; and wanted the Board to know of the situation at the plant and did not want any misunderstanding of his effort to be fair It is apparent from McPherson's testimony that Hall's memorandum was aimed primarily at Larimore and that the letter to the Regional Director was prompted by that fact. While the evi- dence indicated that there had been occasions in the past when letters concern- ing working conditions had been sent to the maintenance division or the oper- ating division or both, this is the only instance where such a step was taken as to a small unit of employees. At the time the Board was considering the advisa- bility of ordering an election and it did so order on November 4, 1944. The various steps taken by the respondent's supervisors again indicated that Lari- more was being singled out from other employees and the evidence does establish that this was done primarily because of his leadership in the Union. It is unnec- essary to decide whether at this particular time this special treatment redounded to Larimore's advantage, as respondent claimed, for the respondent did not rely on Lariniore's conduct during this period as a giound for the discharge. Never- theless, the undersigned finds that at least from October 1944 all of the respond- ent's supervisory officials who had occasion to work with Larimore knew of his activity in the Union and kept that in mind in dealing with him. 10 Larimore, Keir, and Mason were electricians and all references to electricians herein include these three men However, only Larimore and Kerr regulaily worked on various measuring instruments and references to instrument men refer only to them THE PURE OIL COMPANY 557 4. The rotating shift In August 1944 a change was made in the work schedule of the three elec- tricians. Mason, who was doing general electrical work, was put in the "X" classification. This change will be discussed later. Kerr and Larimore, who were doing instrument work, were placed on a rotating shift whereby they alternated each week on a day and night shift. Prior to this time they had-been working during the day only. McPherson testified that a rotating shift was established for the instrument men in order to spread work around the clock and to have an instrument man on duty all the time so that there would be no necessity for emergency calls and overtime work. He also maintained that a rotating shift had been established in another refinery. Prior to August 1944 no regular rotating shift had been established for instru- ment men In fact, while rotating shifts had been established for maintenance men in the past on special occasions, there is little evidence of any plan for establishing regular rotating shifts. McPherson testified that pipefitters and welders had gone on rotating shifts for short periods, but he could not point to the establishment of any rotating shift for other employees for a long period 11 Larimore testified that day work was preferable to night work and that it was more difficult to perform his duties at night under artificial light. The Board contends that the rotating shift for instrument men was aimed especially at Larimore and was designed to keep him away from the daytime workers It points to the admitted fact that within a few weeks after Larimore's discharge the rotating shift was terminated. The respondent denied that it was actuated by other than business reasons in establishing the rotating shift and in terminating it. McPherson testified that the rotating shift was discontinued in March 1945 when an operating unit was shut down and most of the work at the plant was being done during the day. It was stipulated that the same unit was shut down for a week in November 1944. Yet no change in the rotating shift was made then. Hall supplied another rea- son. He maintained that the shift was discontinued as an experiment that had not worked. Cooper supplied still another reason. He testified that at the time of the discontinuance of the rotating shift there had been discussion of salary differentials for night work at other plants and that orders have been received to discontinue night work, if possible The establishment of the rotating shift during a period of intense union ac- tivity at the plant, its discontinuance shortly after Larimore's leaving, and the variety of reasons assigned for its discontinuance, lead the undersigned to con- clude that the rotating shift was set up, at least partly, to cut Larimore off from the day shift of employees for at least half his working time. At the time that the rotating shift was established the third electrician, Mason, was put in the "X" classification. This category was established when the respondent increased its work-week from 40 to 44 hours and later, 48 hours. The 48-hour schedule was put in effect on December 5, 1943. Men who were surplus in their regular category because of the increase in hours "Hall testified that while rotating shifts had been established for maintenance men on special occasions, no regular rotating shift had ever been established for machinists, pipe- fitters, or welders. He also testified that a night shift had been tried with the labor gang in 1943 or 1944 and had been dropped when it proved unsatisfactory. His testimony is in substantial agreement with a memorandum submitted by the respondent purporting to summarize outstanding examples of rotating shifts. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were placed in the "X" category and in a general pool where they were ex- pected to do whatever work was available. The respondent maintained that Mason, the junior man among the electricians, was placed in that group be- cause lie was surplus The testimony indicates that Mason actually had no change in duties and continued to work on the day shift after his change in classification. It was contended that Larimore, as senior man among the electricians, should have been offered the transfer to "X" category The undersigned finds no merit in this contention Transfer to the "X" category technically was indicative of lessened job security and the undersigned con- cludes that the assignment of a junior man to this category was proper under the circumstances. 5 The time-card incident Larimore was discharged on February 22, 1945. The reasons assigned by the respondent for the discharge were falsification of a time card and insub- ordination. The circumstances surrounding the time card incident are not in dispute. Larimore was scheduled to work the evening shift from 8: 00 p. in to 4: 00 a. in. on the night of February 19. Larimore was out of town and telephoned his wife and told her to inform the respondent that he would be late getting to work. The gatehouse log of the respondent contains the following entry : Mrs. Larimore called at 8: 20 p ni and said that Barney was out of town and had missed train connections. Reported to C. White. Barney reported to work at 9: 10 p. in. Carroll White was the assistant operating foreman in charge of the evening shift until midnight. He testified that Mrs Larimore had telephoned him and told him Larimore would be absent, but his testimony is contradicted by the log entry. Larimore did appear foi work at about the time indicated in the log and did have a conversation with White about his being late. White niade an entry in the operating office log book, concerning Larimore's lateness. Lari- ,more turned in his time card at the end of his shift, entering 8 hours as the time worked without any deduction for the time he was late. Hall testified that the following morning, February 20, he read the log entries and noticed that Lariniore's time record did not agree with it. Thereupon, he sent the time card back to White for a report. White testified that Hall gave him the time card and asked him if he would approve it. Later that day, White testified, he spoke with Cooper and told him that he would not approve the time card. Cooper then told White to mail the time card to him and White did so. White never discussed the time card entry with Larimore His explanation for this was that Larimore's case was disposed of before Larimore reported for work Larimore gave several reasons for marking his card as he did One reason he gave was that he had made an agreement with Hall whereby if he had to work overtime for a short while he would not take credit for it, but would take compensatory time off. Larimore claimed the agreement was in existence for 3 or 4 years and gave certain instances where it operated He testified that in November 1943 he took an afternoon off to attend the funeral of Kerr's mother, told his foreman of it the next day, marked his time card for the full 8 hours, and received no complaint about it. In that same month, he further testified, 'he quit THE PURE OIL COMPANY 559 work an hour earlier and claimed full time There is no testimony, however, that this latter incident was ever brought to the attention of a supervisor. Hall denied that he had made any arrangement with Larimore for compensa- tory time off. He testified that he believed he excused Larimore for the Kerr funeral but denied knowledge of any other occasion when Larimore absented himself without prior arrangement with him pursuant to any prior agreement He also testified that Larimore was paid for overtime work. Larimore's testimony as to the purported agreement was vague and, in some respects, contradictory He could not fix the date of the agreement Nor was he certain as to its exact terms. He could not clearly fix the point at which his overtime work became compensable, and when he would not enter it He also testified that if overtime were authorized or directed lie would enter it regard- less of the time involved. He would also do the same, lie stated, when he worked with other men He kept no record to indicate how much uncompensated overtime he had worked and any time off taken because of it. Larimore testified that in his 17 years of employment with the respondent he had been late twice, and had on about three or four occasions taken time off from work without prior discussion with a foreman and an equal number with prior discussion and permission. The undersigned concludes from the vague and unsubstantiated testimony as to the purported agreement and the lack of definite evidence that it was carried out with the respondent's full knowledge, that the evidence does not establish that an agreement existed for a balancing off of short periods of overtime against time off. The undersigned has also considered, in this connection, Larimore's testimony that in October 1944 he took an hour off with permission of a foreman and that a deduction was made from his pay check He (lid not then or at any time seek to set off uncompensated overtime for the time taken off. The Board also presented the testimony of several employees who testified that it was customary at the refinery for employees who were somenhat late to mark their time cards for the full 8 hours or, at least, that they marked their own time cards on that basis without any reprimand. However, only Lai more and em- ployee Homer Helser testified that this custom extended to lateness of as much as an hour. Neither furnished any specific example other than an instance when Helser's car froze and he was one-half hour late and marked his card for the full time after receiving his foreman's permission. There also was testimony that during a particularly bad snowstorm employees were not held accountable for lateness McPherson and Cooper testified that no such custom existed and that instructions had been issued that only time actually worked could be entered on time cards, but that foremen could file recommendations that there be payment for non-working time, if they felt that conditions warranted such ac- tion. The undersigned finds that the evidence, while it is indicative that late- nesses of a few minutes were not accounted for generally, falls short of estab- lishing that latenesses of an hour or more were not taken account of on the time records. It also appears from the evidence that on occasions some questions would arise as to time card entries and were settled by discussion between the employees and the supervisor. An instance of this concerned Carroll White, the assistant foie- man involved in the time card incident with Larimore, and employee Kenyon Hunter On June 13, 194. Hunter was 20 minutes late and entered the full 8 hours White checked his card and after discussing it with Hunter, the time was changed. Hunter received no penalty or reprimand. While this incident occurred 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after Larimore's discharge it is relevant in consideration of the issue herein. White testified that the only reason he settled the question of Hunter's time card entry directly with that employee and did not do so with Larimore was that Hunter was on the spot at the time he, White, checked his time card whereas Larimore was not available when he checked his time card. 6. The flow meter incident The second alleged ground for Larimore's discharge was insubordination. This charge related to the so-called flow meter incident. On February 20, 1946, White who was in charge of the evening shift received a work order. While this order was not available at the hearing all parties agree that it read "Install top tray reflux meter for test run at D-3 tower." 32 White testified that after receiving the work order in question he passed by the proposed installation work prior to Larimore's coming on duty and noticed that the pipes necessary for the installation of the meter were already in place. When Larimore arrived, White continued, he handed Larimore the flow meter woik order together with several others and called his attention to that par- ticular work order, stating it was to have preference and had to be installed before i : 30 the next morning. Larimore read the work order, White said, and stated that the order called for the work of a pipefitter and not an instrument man 13 White replied that there was no pipe work involved, that the meter had to be installed by the next morning, and that he would furnish Larimore with help in transporting the meter. The conversation then ended, White testified. He also testified that Larimore did not refuse to do the work. Larimore's version differed sharply from White's. He testified that White did not hand the work order to him, but read it and asked him whether it was his work or that of a pipefitter, that Larimore replied that it was pipefitters' work, and that White said he would look over the job and let him know. He never saw White after that. White testified that he did not see Larimore or attempt to contact him for the rest of his shift. Shortly before he went off duty, White testified, he passed by the place where the installation was to be made, saw that the meter had not yet 32 The respondent in the course of its operations used measuring meters to measure the flow of liquids or gasses thiough pipes Some of the meters were installed at specific points permanently , others were moved from point to point as tests were made The installation of a meter required that it be disconnected from its prior location , the plugging or removal of the pipes leading from the main pipe line to the meter , the tiansportation of the meter to the new location, the installation of pipes to the main line pipe, and the connection of the pipes to the meter 13 Extensive testimony was introduced by all parties as to the duties of instrument men with particular regard to the moving of flow meters from one point to another Larimore and Kerr , the two instrument men, testified that it was not part of their duties to move meters from place to place, but that they calibrated , tested , and hooked up meters once pipefitters had made preparations for the installation Mason, the other electrician, cor- roborated their testimony as did pipefitter William Fessler Hall and Cooper testified that instrument men u ere required to and did move meters from place to place The under- signed credits the Board's witnesses and finds that pipefitters regularly moved meters from one installation to another Moreover , all witnesses agreed that there was nothing wrong in an employee questioning whether a particular job should be performed by him or another employee, and further , that while there were no job specifications at the plant there were customary procedures at the refinery whereby work was assigned to particular groups of employees. No issue was made as to Larimore's conduct in raising a question about the work order. THE PURE OIL COMPANY 561 been installed, and again made some measurements and satisfied himself that no pipe work was necessary. At midnight Ewing came on duty replacing White. Ewing testified that when he went on duty White told him about the work order, that Larimore had said it required a pipefitter but that he, White, had measured the place of installa- tion and was satisfied that that was not so At Ewing's suggestion they both went to the place -and measured it again. Ewing testified that he also in- spected the meter. During the shift, Ewing testified, he visited the instrument shop once and saw the work order. At no time did he communicate with Lari- more. At about 6: 00 he noticed that the work had not been done and told Hall about it when the latter came on duty. The actions of White and Ewing in the circumstances were very peculiar. Both testified that the work order had priority and that that meant it should be carried out first, both testified that Larimore had not refused to do the work, but had raised some question about it, and neither went near Larimore for 8 hours to ascertain why he had not started a job which should have been begun soon after he came on shift. White testified that he did not go near Larimore because he had given him his instructions and Larimore had plenty of time to start and complete the work even after White went off duty at midnight. Yet White had the work order sufficiently in mind to recheck the job location before he went off duty. Ewing had checked the job with White as he went on duty and knew of its priority and Larimore's raising of some question about it. He gave several explanations for his failure to check with Larimore, that he knew Larimore had the order, that he had other work to do, that he expected Lari- more to carry out the order, that if Larimore had not done the work for White he would not do it for him, and that Hall would be on duty in the morning and he could turn the order over to him. The undersigned was not impressed by the testimony of White and Ewing. Their actions were characterized by a species of dealing at arms-length with Larimore which is not characteristic of employer-employee relations. The under- signed credits Larimore's testimony and finds that at the conclusion of his talk with White, the latter had not given him unequivocal instructions to carry out the work order. It is significant that after this talk White rechecked the job installation twice and Ewing once and neither took Larimore to that point and showed him what they had found there Both Ewing and White knew of Lari- more's union activities. Ewing, in particular, had show evidence of anti-union bias in the 1943 election as detailed in the Board's decision thereon. As re- lated in this report, he had evidenced such bias later. The undersigned concludes that both White and Ewing deliberately refrained from correcting Larimore's misunderstanding concerning the work order and were motivated therein by their knowledge of Larimore's union activities and position in the Union. 7. Extent of investigation by the respondent Hall came on duty on the morning of February 21, learned of the work order situation, and installed the meter himself. He testified that he talked with White and Cooper and then decided to recommend Larimore's discharge. Cooper testified that White, on February 20, had told him of the time card incident and Larimore's failure to deduct.for his lateness, *and that he, Cooper, had asked White to mail the time card to him. He received the card on Feb- ruary 21. Cooper further testified that on the morning of February 21, he 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD learned that Larimore had refused to carry out the work order to move and install a flow meter . He testified he learned this from White and from a log book entry.' Cooper stated that ,he then checked and found that Hall had in- stalled the meter. He also testified that lie received the report that Larimore had refused to do the work and he believed the report after checking it.16 He also said that he was advised by Hall and White that no pipe work was neces- sary for the installation . Cooper attempted to talk with McPherson that day, but the latter did not have time for a full discussion and suggested they talk the next day and that Larimore be assigned to the day shift then so that he would be available . This was done. On February 22 McPherson and Cooper conferred again. McPherson testified that Cooper reported to him that Lai imore had falsified his time card by putting in more hours than he had worked and also, that lie had refused to do assigned work McPherson asked Cooper for his recommendation and the latter recom- mended discharge . McPherson agreed and ordered Cooper to discharge Lai more At no time prior to the decision on the discharge was Larimore asked about either the time card or work order incidents . Neither Ewing, White, Hall, Cooper, nor McPheison afforded Liumiore an opportunity to explain or deny the charges lodged against him , before reaching a decision 8. The discharge The discharge itself took very little time. Cooper testified that after his discussion with McPherson, lie told Hall to bring Larimore to his office. His testimony as to what took place in his office is as follows : The WITNESS I asked Mr. Hall to have Mr. Lariinore come to the office or come to the office with Mr. Lariinore. Mr. Hall did. And they seated themselves in my office I showed the time card in question to JIr Lary more. I said, "Is this your time card?" Mr. SWANDER. I can't hear you. The WITNESS. I said, "Is this your time card?" To which he replied, "Yes, it is." I said, "Barney, on the time card you have indicated that you worked from eight o'clock until four o'clock, that you worked eight hours?" And he said, "Yes." Then I said, "The record shows that you only worked six or an hour and 10 minutes less than the eight hours which you have indicated on the time card." And he became very contused and said, "Well, I must have made a mis- take. It should have been seven hours," or something like that. I then said, "Well, Barney, you made a serious mistake." I said, "I have also had it ieported to me that you refused to do a job on the night shift the other evening " And he immediately said, "Well, it was pipe fitters' work." I said, "Barney, your conduct has been-is no longer tolerable. I am going to have to tender you your discharge," or words to that effect. Trial Examiner FFILFR. What else was said, if anything? 14 No log book entry to this effect was produced and it appeased that no such entry had been made. 11 White denied that lie had told Cooper or anyone else that Lasiniore had refused to do the work. THE PURE OIL COMPANY 563 The WITNESS. Well, Larimore got mad at that point and said, "You have been trying to get me," And I can't say that anything else was said. He left the office in a huff at that time. Cooper admitted, with reference to the time card, that Larimore may have told him that Larimore's wife had telephoned the company that Larimore was going to be tardy. Larimore testified that Cooper just said to him, "Barney, we are very sorry to do this, but you are charged with insubordination and falsification. Insubordina- tion, refusing to do a job ; falsification of your time card on the 19th. We are going to fire you." He denied that he was asked for his version of the incidents relied on for his discharge. In any event, it is clear that there was no detailed discussion of those incidents, especially that of the work order. Larimore was not asked to relate what happened on that occasion. Conclusions The situation that existed at the time of Larimore's discharge was that he had failed to note his lateness of an hour and 10 minutes on his time card of February 19 and that he had, through a misunderstanding fostered by his foremen White and Ewing, failed to carry out a work order. There was evidence that questions of time card entries had arisen before, as they normally would. White himself gave an illustration where he had adjusted an employee's time card to show lateness which the employee had not recorded. The label of "falsification" had not been placed on that employee's conduct. White, Cooper, and McPherson might perhaps have taken into account Larimore's unchallenged testimony that this was his second lateness in 17 years. As for the work order incident, an investigation of the facts would have shown that Larimore had not refused to do the assigned work and that the conduct of his supervisors was calculated to and did mislead him. Again, it might be supposed that McPherson and Cooper would have won- dered why an employee with 17 years of service might suddenly undertake to disobey orders. The respondent urges that in any case the actual truth of the charge of refusal to perform the work order is not determinative here, that the central issue is the motives of McPherson and Cooper in making the decision to discharge Larimore. The undersigned is convinced, however, that the truth or falsity of the alleged causes for the discharge as well as the motive of the supervisors who reported the incidents leading to the discharge are all factors which must be considered in evaluating and determining the motives prompting the discharge. Arbitrary action, a failure to investigate both sides of a case, or at least afford an employee a full opportunity to defend himself, and the disparity in the punishment for a misdeed by an employee in comparison to that meted out to other employees for a similar offense, are all factors which tend to indicate that a determination to discharge an employee was based on considerations other than merit.16 This is especially true when an employee has given years of satisfactory service. Larimore's record is one of steady advancement in pay and responsi- '°N L. It B. v. Yale & Towne Mfg. Co, 114 F. (2d) 376, 378 (C C A. 2) ; Shell Oil Co, Inc V N L. R B., 128 F (2d) 206, 207 (C. C A. 5) ; Matter of Illinois Tool Works, 61 N. L R B 1129, 1132, Matter of May Department Stores Company, d/b/a Famous-Barr Company, 49 N L R. B. 976, 982. The undersigned does not condone Larimore's failure to make an accurate entry on his time card, but in the determination of the respondent's motives herein a determining factor is the way this offense was treated when committed by another as compared with Larimore' s case. 766972- 48-voI 75-37 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bility while in the respondent's employ. The respondent became dissatisfied with his work only after he had taken an active interest in the Union. The evidence herein impels the conclusion that both White and Ewing by a studied failure to take action on their own level of authority allowed a situation to develop which might furnish an excuse or pretext for a discharge, if their supervisors sought to take advantage of the situation. The failure of top management to investigate the work order incident and its elevation of the time card incident to that of a major violation when it had not been so treated in other cases are indicative of an effort by the respondent to rid itself of Larimore rather than do him justice in the circumstances. This treatment finds its explanation in the union activities of Iarimore. He had taken an active interest in the Union from the fall of 1943. He was its leader in 1944. While the Union had suffered a defeat in-the December 1944 election, the official records of the Board show that the vote was close. It was obvious that the Union would continue its campaign among the refinery workers. All of the supervisors involved in Larimore's case knew of his position and activities. McPherson, Cooper, and Ewing had at some time demonstrated anti-union bias and the undersigned concludes that that feeling played a part in the determination to discharge Lari- more. The undersigned finds that the respondent discharged J. B. Larimore because of his membership in the Union thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring 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 such of them as have been found to be unfair labor practices 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 independently violated Section 8 (1} and (3) of the Act, it will be recommended that the respondent, pursuant to the mandate of Section 10 (c), cease and desist therefrom. The respondent by its supervisory personnel interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed under the Act by questioning employees as to their attitude towards the Union ; threatening employees with discharge if the Union succeeded in its campaign ; questioning employees as to the conduct, occurrences and attendance at Union meetings ; disparagement of the Union ; and by the promulgation and enforcement of a no-solicitation rule which pro- hibited discussion of union affairs on plant premises during the non-working time of employees. The respondent also discriminatorily discharged John B. Lari- more and refused to reinstate him because of his union activities. Such dis- crimination "goes to the very heart of the Act." 17 As previously mentioned, the respondent has heretofore been found by the Board to have interfered in the election held among its employees in 1943 and to have prevented a free expression of their opinion. Since that time as afore-mentioned, the respondent has con- 11 N. L. R. B. v. Entwistle Mfg Co., 120 F. (2d) 532, 536 (C. C. A. 4). See also N. L. R B. v Automotive Maintenance Machinery Co., 116 F. (2d) 350, 353 (C C A. 7), where the Court observed : "No more effective form of intimidation nor one more violative of the- N. L. R. Act can be conceived than discharge of an employee because he had joined a 11 union . . . THE PURE OIL COMPANY 565 tinned by various acts and statements to interfere with the rights of its employees. The totality of the respondent's conduct is indicative of "persistent efforts by varying methods to interfere with the right of self-organization" in circum- stances which contain "the threat of continuing and varying efforts to attain the same end in the future." w Because of the respondent's unlawful conduct-and its underlying purpose, the undersigned is convinced that the unfair labor prac- tices are persuasively related to the other unfair labor practices proscribed and that danger of their commission in the future is to be anticipated from the respondent's conduct in the past. The preventive purposes of the Act will be thwarted unless the recommended order is coextensive with the threat. In order, therefore, to make effective the interdependent guarantees of Section 7, to prevent a -recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, it will be recommended that the respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. It has been found that the respondent has promulgated and enforced a no- solicitation rule which is in violation of the Act. It will be recommended that said rule be rescinded insofar as it does conflict with the Act. It has been found that the respondent has discriminated in regard to the hire and tenure of employment of John B. Larimore. It will therefore be recom- mended that the respondent offer him immediate and full reinstatement to his former or substantially equivalent position 19 without prejudice to his seniority and other rights and privileges. It will be further recommended that the re- spondent make him whole for any loss in pay that he may have suffered by reason of the respondent's discrimination against him by payment to him of a sum of money equal to the amount he would have earned as wages from the date of the discrimination against him to the date of the respondent's offer of rein- statement, less his net earnings 20 during said period, except that it will be recommended that the respondent shall not be required to pay back pay for the period when the Regional Director declined to take action on the charge filed herein." Upon the basis of the foregoing findings of fact and the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. Oil Workers International Union, Local 501, affiliated with the Congress of Industrial Organizations, is a labor organization within the meaning of Section 2 (5) of the Act. 18 N. L. R. B. v. Express Publishing Company, 312 U. S. 426, 438. N. L. R. B. v. Bradley Lumber Company of Arkansas, 128 F. (2d) 768, 771 (C. C A. 8). 19 In accordance with the Board's consistent interpretation of the term, the expression "former or substantially equivalent position" is intended to mean "former position wherever possible, but if such position is no longer in existence, then to a substantially equivalent position." See Matter of The Chase National Bank of the City of New York, San Juan, Puero Rico, Branch, 65 N. L. R. B. 827. 20 By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company, 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. A , L. R. B., 311 U. S. 7. 21 Matter of American Steel Foundries, 68 N. L. R. B. 514. 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. By discriminating in regard to the hire and tenure of employment of John B. Larimore, thereby discouraging, membership in the Union, respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8 (3) of the Act. 3. 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. - 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the respondent, The Pure Oil Company (Heath Refinery), Newark, Ohio, its officers, agents, successors and assigns shall: 1. Cease and desist from : (a) Discouraging membership in Oil Workers International Union, Local 501, affiliated with the Congress of Industrial Organizations, or any other labor organi- zation of its employees by laying off, discharging or refusing to reinstate any of its employees and from refusing to employ any member of that Union or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment ; (b) In any other manner interfering with, restraining or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Oil Workers International Union, Local 501, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Offer to John B. Larimore, immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges ; (b) Make whole John B. Larimore for any loss of pay he may have suffered by reason of respondent's discrimination against him by payment to him of a sum of money equal to the amount he would normally have earned as wages from the date of the discrimination to the date of the respondent's offer of rein- statement, less his net earnings 22 during said period, except that back pay shall not be paid for the period May 13, 1945, to May 13, 1946, the said period being the period during which the Regional Director had refused to take action on the charge filed ; 23 (c) Rescind immediately its no-solicitation rule insofar as it prohibits union solicitation on the respondent's premises during the non-working time of its employees ; (d) Post immediately at its refinery at Newark, Ohio, copies of the notice at- tached to the Intermediate Report herein marked "Appendix A." 21 Copies of said 22 See footnote 20, supra. 23 See footnote 21, supra. 24 It has been found that certain unfair labor practices occurred at the respondent's motor transport garage at Newark, • Ohio. Since there is testimony that said garage was closed and its functions transferred to another point, the undersigned will not recommend that there be any posting at that garage. THE PURE OIL COMPANY 567: notice, to be furnished by the Regional Director for the Eighth Region, • after being duly signed by the respondent's representative, shall be posted by the re- spondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced or covered by any other material; (e) Notify the Regional Director for the Eighth Region in writing within ten (10) days from the receipt of the Intermediate Report what steps the respondent has taken to comply herewith. . It is further recommended that unless the respondent notifies said Regional Director in writing within ten (10) days from the receipt of this Intermediate Report that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 203.39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 203 38 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or pro- ceeding (including rulings upon all motions or objections) as he relies upon, to- gether with the original and four copies of a brief in support thereof ; and any party or counsel for the Board may, within the same period, file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. Proof of service on the other parties of all papers filed with the Board shall be promptly made as re- quired by Section 203.65. As further provided in said Section 203 39, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. SIDNEY L FEILER, Trial Examiner. Dated November 25, 1946. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist OIL WORKERS INTERNATIONAL UNION, LOCAL 501, affiliated with the CONGRESS OF INDUSTRIAL ORGANIZATIONS, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage. in concerted activities for the purpose of col- lective bargaining or other mutual aid or protection WE WILL ob'FER to the employees named below immediate and full rein- statement to their former or substantially equivalent positions without prej- 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD udice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. John B. Larimore WE HEREBY RESCIND the no-solicitation rule insofar as it prohibits union solicitation on our premises during the non-working time of employees. All of our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. THE PURE OIL COMPANY (HEATH REFINERY), By ---------------------- -------------------- (Representative) (Title) Dated--------------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.