J. S. Abercrombie Co.

In the Matter of J. S. ABEROROMBIE COMPANY and OIL WoRSE64 INTERNATIONAL UNION, C. I. O. Case No. 16-C-1530.-Decided May 13, 1949 DECISION AND ORDER On December 29, 1948, Trial Examiner Charles S. Donovan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged 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. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor prac- tices alleged in the complaint. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report, with supporting briefs. The Board 2 has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed,3 except for the refusal of the Examiner to take judicial notice of the proceedings before the Board in Matter of J. S. Abercrombie Company, 77 N. L. R. B. 712, a representation proceeding pertaining to the employees of the Respondent involved in this case. It is the practice of the Board to take judicial notice of its own records and 1 Those provisions of Section 8 (1) of the National Labor Relations Act which the Trial Examiner found were violated are continued in Section 8 (a) (1) of the -Act, as amended. 2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [ Chairman Herzog and Members Houston and Gray]. 8 In affirming the Trial Examiner 's rejection of the Respondent ' s contention that the Regional Director ' s letter of July 1, 1948, did not operate as a dismissal of all the charges except those relating to Jones, we rely on the construction placed on that letter by the Trial Examiner , particularly when read in conjunction with the provisions of the com- plaint issued by the Regional Director simultaneously with his letter. For the reasons set forth in Matter of Erveng Paper Mills , 82 N. L. R . B. 434, we affirm the Examiner's rejection of the Respondent's contention that the instant complaint is barred by the 6-month limitation in Section 10 (b) of the amended Act. 83 N. L. R. B., No. 85. 524 J. S. ABERCROMBIE COMPANY 525 proceedings,' and we will take judicial notice of the said representa- tion proceeding for the purpose of this Decision and Order. The Board has considered the Intermediate Report, the exceptions and briefs and the entire record in the case, and, to the extent that they are consistent with this Decision and Order, the Board adopts the findings, conclusions, and recommendations of the Trial Examiner. 1. We agree with the Trial Examiner's findings that the Respondent, by various acts of its supervisors, detailed in the Intermediate Report, violated Section 8 (1) of the Act and Section 8 (a) (1) of the amended Act. However, unlike the Examiner, in reaching this conclusion, we do not rely on the calling and holding of a meeting of employees and supervisors in the latter part of October 1946, at which meeting Superintendent Bass advised the employees to get a charter of their own, or on Superintendent Bass' statement to employee Cantrell on October 19, 1946, that the Respondent "would make a better working place than the Union could." 2. The Examiner found that employee Palmer testified, without contradiction, that in March 1947, Construction Superintendent Waite told him that "if the outfit went Union everything would be contracted out there and we wouldn't have no job." The Examiner stated that he was unable to determine whether Waite's statement constituted a threat "uttered for the purpose of in- fluencing Palmer against the Union," or an opinion "as to the probable result of unionization," which would be protected by Section 8 (c) of the Act. Waite's statement might possibly be viewed as an expression of opinion carrying no threat of reprisal only if it were construed to S Matter of Bentwood Products , Inc., 81 N L R B. 635 . Section 7 (d) and 8 of the Administrative Procedure Act, cited by the Examiner in support of his ruling, do not, in our opinion , preclude the Board from judicially noticing its own records or proceedings. Section 7 (d) of the Act provides. Where any agency decision rests on official notice of a material fact not appearing in evidence in the record, any party shall on timely request be afforded an opportunity to show the contrary The Senate Report on this provision states: Where agencies take such notice they must so state on the record or in their decisions and then afford the parties an opportunity to show the contrary Senate Report No . 752, 79th Cong., 2d Sess., p. 23. There is nothing to the contrary effect in Section 8 of the Administrative Procedure Act, cited by the Examiner. We accordingly construe that Act as permitting a Trial Examiner or the Board, in a particular case, to take official notice of matters of which courts ordi- narily take judicial notice, including proceedings before the Board in other cases, provided only that where such notice is taken, that fact is stated on the record by the Trial Examiner or set forth in his Intermediate Report, or , failing that, in the decision of the Board, and the parties are given an opportunity to show the contrary. So, in the instant case, the parties will be given an opportunity to show, upon filing a timely motion for reconsidera- tion, the contrary of the fact of which we take official notice. Had the Trial Examiner in this case stated on the record or in the Intermediate Report that he was taking official notice of the Board 's records in the representation case, the parties would have had ample opportunity in their exceptions to show any error in the Examiner 's action. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -mean that unionization of the plant would result in such an increase in labor costs that the Respondent would find it more economical to con- tract out its work. In our opinion, this would be a strained interpre- tation of Waite's statement, which on its. face reasonably carried the coercive implication that if the Union 's organization efforts were suc- cessful, the Respondent would retaliate by curtailing its operations. We find, therefore, that Waite made the statement attributed to him and that such statement carried a threat of economic reprisal in the event the plant were unionized. Accordingly, it was not protected by Section 8 (c) but was violative of Section 8 (1) of the Act. 3. We agree with the Trial Examiner's finding that the discharge of Jones was not due to any inefficiency or laxity in the performance of his work or to any other reason advanced by the Respondent. We do not agree with the Trial Examiner, however, that the General Counsel had failed to establish by the preponderance of the evidence that Jones was discriminatorily discharged in'violation-of the Act. - The Examiner found that Jones was the president of the local chap- ter of Oil Workers International Union, 0. 1. 0. (hereinafter called the Union), which was seeking to organize the employees at -the plant involved in this case. The Examiner relied, however, on the following circumstances as negating any inference of discrimination that might be drawn from Jones' position in the Union and from the fact that he had been summarily discharged without good cause after a -series of violations of the Act by the Respondent : a. The absence of any marked activity on the part of the Union at the time of Jones' discharge. b. The absence of evidence that Jones was active in the affairs of the Union at the time of his discharge. ^c. The fact that the Respondent, with knowledge of Jones' position in the Union, had retained him in its employ for more than a year, giving him a raise during that period. , d. The absence of any evidence of anti-union activity by the Re- spondent for several months prior to Jones ' discharge. We are unable to accord to these factors the same weight as did the Examiner, for the following reasons : a. It is clear, and we find, that there was the following union activity at about the time of Jones' discharge : (1) On or about February 2, 1948, about 3 weeks before his dis- charge, the Union had filed a fifth amended charge in this case, adding a new name to the list of those alleged in its prior charges to have been discriminatorily discharged by the Respondent. (2) On January 27,1948, less than a month before Jones' discharge, representatives of the Union attended a hearing held by the Board on 11 ;J. S. ABERCROMBIE COMPANY 527 a petition filed by the Union for certification as the representative of the employees in the instant plant,5 and this petition was pending at the time of Jones' discharge. b. The fact that there was no showing of any specific union activity by Jones himself at the time of his discharge is not in our opinion en- titled to any considerable, weight as negating an inference of a discrim- inatory motive for his discharge. He was, as the Examiner found, a charter member of the Union and its first and only President. Counsel for the Respondent acknowledged in argument before the Examiner that Jones had been active in organizing the Union and in soliciting members. Even if Jones were relatively inactive in union affairs at the time of his discharge, the Respondent necessarily knew that, as president of the Union, he symbolized to its employees the prestige of the Union, and that his discharge would tend to discourage union activity and membership in the Union at a time when the Union was facing a crucial ,test of its strength in a Board election. c. As to the retention and favorable treatment of Jones by the Re- ,spondent for more than a year with knowledge of his rank in the Union, the following considerations are pertinent in appraising the motive for his discharge : It was not until shortly before Jones' discharge that events occurred which accentuated the need, from the standpoint of the Respondent, for taking drastic action to arrest the progress of the Union. The Union did not file its petition for certification until August 21, 1947, and it was not until January 16, 1948, about a month before Jones' discharge; that the Board notified the parties that a hearing would be held on the Union's petition. It is the Board's established practice, publicized in its Statements of Procedure,6 that normally it will not order a hearing on a petition for certification unless investigation shows that the petitioner has, been designated by at least 30 percent of the employees in the unit sought. Accordingly, the foregoing notice of hearing was tantamount to a notice to the Respondent that investi- gation by the Board indicated that the Union had won the support of at least 30 percent of the Respondent's employees. Until it received this notice, the Respondent had no reason to believe, so far as the record discloses, that the action it had theretofore taken to combat the Union had been ineffective and that there was any need to resort to more drastic measures. See preceding footnote. :National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 5, effective August 22, 1947 , Sec. 202 17 (a) of Statements of Procedure. 528 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD As already stated, the hearing on the Union's petition was held on January 27, 1948. Less than a month later Jones was discharged. Thus Jones' discharge came at a time when the Union's organizational campaign appeared to be approaching a successful climax, and when it appeared that coercion of the Respondent's employees had thus far failed to accomplish the Respondent's purpose, which, as found by the 'Trial Examiner, was "to nip the Union in the bud." It was con- sistent with this purpose for the Respondent, milder measures having failed, to resort to the more drastic action of discharging Jones, who held the highest position in the local chapter of the Union. In our opinion, the foregoing circumstances suffice to explain why the Respondent refrained from discriminating against Jones until February 24, 1948. We are therefore forced to infer, and we accord- ingly find, that the timing of Jones' discharge was influenced by the pendency of the representation proceeding, in which a hearing had recently been held, and by the apparent imminence of action by the Board directing an election to determine whether the Union should be certified as the representative of the Respondent's employees.7 d. As to the Examiner's reliance on the absence of any evidence of anti-union activity on the part of the Respondent about the time of Jones' discharge, the following considerations are pertinent : The Examiner found that beginning on- October 18, 1946, the Re- spondent engaged in a "concerted drive to nip the Union in the bud." This drive, as we have found, was reflected in a series of anti- union. ,and coercive acts by the Respondent's supervisors and higher manage- ment representatives, which occurred in October 1946, and in January, March, June, August, September, and December of 1947. These acts, 'which we have found to be violative of the Act, ranged from interroga- tion concerning union membership and activity to threats of discharge if the Union's campaign succeeded, and the promise of a better job as an inducement to desist from union activities. In September and December 1947, Jones himself was interrogated about the progress of the Union and the names of any new members by his supervisor, Lytle, who, as found by the Examiner, was instrumental in procuring Jones' discharge on February 24, 1948, about 2 months later. In view of the fact that the Respondent's coercive course of conduct, as described above, extended over a period of more than a year, some- times with intervals of 2 or more months between successive incidents, and in view of the significant developments about a month before Jones' discharge in connection with the representation proceeding, we cannot ' An election was in fact directed by the Board on May 17, 1948. At the election con- ducted pursuant to the Board 's Direction, 142 votes were cast for, and 300 against, the Union. J. S. ABERCROMBIE COMPANY 529 agree with the Trial Examiner that the interval of 2 months between the interrogation and d'ischarge of Jones constituted such an extraor- dinary time gap as to warrant considering his discharge as an iso- lated incident. On the contrary, we believe that in determining the motivation for the discharge, it must be viewed, not as an isolated in- cident, but against the background of the Respondent's systematic and concerted coercive conduct and the pendency of the representation proceeding. Viewed in the light of these circumstances, and in the light of the Trial Examiner's findings, with which we agree, that Jones conscien- tiously and properly performed all the duties required of him, to the knowledge of the supervisor who discharged him, and that the Re- spondent "deviated sharply from its general policy when it discharged Jones, an employee of long [about 20 years'] standing with an excellent employment record, without notice and warning, and with a recom- mendation that he be not rehired," we are convinced by the preponder- ance of the evidence, and find, that in discharging Jones the Respond- ent's motive was to discourage union membership and activity, in violation of Sections 8 (a) (3) and 8 (a) (1) of the amended Act. 4. The Examiner found that there was a conversation between em- ployee Bruce and Talbert, an alleged supervisor, about July 30, 1947. Bruce testified that Talbert told him he was to be demoted for union activity. This was denied by Talbert. The Examiner did not resolve this conflict because the General Counsel had failed to sustain the burden of proving that Talbert was a supervisor, apparently implying, however, that even if he were a supervisor it was not shown that the statement was made within the scope of his employment. The test applied by the Board, with the approval of the courts, in determining whether an employer is responsible for coercive statements by a super- visor is not whether the statements were, in fact, within the scope of the supervisor's employment, but whether the employees have just cause to believe that the supervisor is acting for and on behalf of man- agement in the situation under dispute. Under this test, the Board and the courts have held that, in the absence of special circumstances not present here, an employer is responsible for coercive statements and other conduct of a supervisor.8 Accordingly, while we adopt the Examiner's finding that there was no violation of Section 8 (1) of the Act as a result of Talbert's alleged statement to Bruce, in so doing we 8 Matter of Peter Freund Knitting Mills, 61 N. L. R. B. 118, 123 ; Matter of Columbian Carbon Co., 79 N. L. R. B. 62 ; N. L. R. B. v. Link Belt Co., 311 U. S. 584, 599; International Association of Machinists v. N. L. R. B., 311 U. S. 72, 80 ; N. L R. B. v. Schaefer-Htitchcock, 131 F. (2d) 1004, 1007 (C A. 9) , N. L. R B. v. Cities Service Oil Co ., 129 F. (2d) 933. 935 (C. A. 2). 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD do not rely on the absence of evidence that any statements made by' Talbert were within the scope of his employment, but rather on the' other grounds indicated by the Examiner. For similar reasons, in adopting the Examiner's conclusion in paragraph 6 (i) of the Intermediate Report that Harvill's testimony afforded no basis for a finding that Bledsoe, an alleged supervisor,' made statements violative of Section 8 (1) of the Act, we do not rely on the absence of proof that Bledsoe was acting within the scope of his employment. 5. Employee Byram testified that on or about March 27, 1947, he had a conversation with his supervisor, Reeves, in the course of which Reeves "offered to bet $100 that if the plant went Union 100 men would be laid off." Reeves denied this conversation and the Examiner did not consider it necessary to resolve the conflict in the record on this point, commenting, in part: "Clearly if Reeves had stated, as his opinion, that if the plant went Union 100 men would be laid off, such a declaration would be protected under Section 8 (c) of the amended Act." (Emphasis supplied.) If this statement means that the protection of Section 8 (c) may be invoked by an employer simply by characterizing his utterances, however coercive, as expressions of opinion, we do not agree. To exalt from above substance in this manner would invite widespread circumvention of Section 8 (a) (1) of the Act. Whether a predic- tion that unionization of the plant would result in mass lay-offs is a threat of reprisal or an expression of opinion such as is protected by Section 8 (c) of the Act, must be determined in the light of all' the surrounding circumstances. The fact that it purports to be an expression of views, argument, or opinion may be some evidence that it is not a threat of economic reprisal, but is far from conclusive in this regard. The substance and context of the statement, and the position of the speaker in relation to his audience, are equally, if not more, significant factors in determining whether a statement is free from any threat of reprisal or promise of benefit. In 'the present case it is, in our opinion, far from clear that the alleged "wager" of Reeves was not a veiled threat of reprisal. How- ever, absent a finding by the Examiner as to whether such a statement was actually made, we shall not attempt to resolve the conflict in the record on this point. 6. Employee Bruce testified that Galyean, a supervisor, told him that two of Bruce's fellow employees were "agitators" and were "talking about the Union" and would be fired. This was denied by Galyean. The Examiner failed to resolve this conflict in the testi- mony, stating that it had no significance because it was merely a J. S. ABERCROMBIE, COMPANY 531 statement of opinion or knowledge or a prediction of a future event. We do not agree. We believe that such a statement, if made, carried a threat of economic reprisal against any employees who engaged in union activities , and would therefore be reasonably calculated to coerce Bruce in the exercise of his right to engage in such activities. How- ever, in the absence of any finding by the Examiner as to whether the statement was in fact made, we shall not at this time attempt ,to resolve the conflict in the record on this point. THE REMEDY We have found that the Respondent has discriminatorily discharged Willie Rufus Jones in violation of Sections 8 (a) (3) and 8 (a) (1) of the amended Act and has engaged in numerous other coercive acts and conduct over a long period of time in violation of Section 8 (1) of the Act and 8 (a) (1) of the amended Act. We shall order the Re- spondent to cease and desist from engaging in such conduct. The Respondent's unlawful conduct, in our opinion, discloses a fixed pur- pose to defeat self-organization and its objectives. Because of the Respondent's unlawful conduct and its underlying purpose, we are convinced that the unfair labor practices found are persuasively re- lated to the other unfair labor practices prescribed by the Act and that a danger of their commission in the future is to be anticipated from the course of the Respondent's conduct in the past. The preventive purpose of the Act will be thwarted unless our Order is coextensive with the threat. In order, therefore, to make effective the interde- pendent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and to minimize strife which burdens and obstructs commerce, and thus to effectuate the policies of the amended Act, we will order that the Respondent cease and desist from infringing in any manner upon the rights guaranteed by Section 7 of the amended Act. We shall also order the Respondent to offer Willie Rufus Jones im- mediate and full reinstatement to his former or substantially equiva- lent position,9 without prejudice to his seniority and other rights and privileges, and to make him whole for any loss of pay he may have suffered by reason of the Respondent's discrimination against him, by the payment to him of a sum of money equal to the amount he normally would have earned as wages from the date of such dis- crimination to the date of the Respondent's offer of reinstatement, less his net earnings 10 during such period. In accordance with our prac- tice, in view of the Trial Examiner's failure to recommend the rein- See Matter of The Chase National Bank of the City of New York, 65 N. L. R. B. 827. 20 See Matter of Crossett Lumber Company, 8 N. L. R. B. 440, 497-498. 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statement of Jones or the award to him of back pay, the period from the date of the Intermediate Report to the date of the Order herein will be excluded in computing the amount of back pay Willie Rufus. Jones is entitled to receive. 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 Respondent, J. S. Abercrombie Company, Houston, Texas, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Oil Workers International Union,, C. I. 0., or in any other labor organization, by discharging employees. or in any other manner discriminating in regard to hire or tenure of employment or any term or condition of employment; (b) Interrogating employees with respect to their membership in, activity in behalf of, or sympathy for, Oil Workers International Union, C. I. 0., or any other labor organization, offering any benefits or threatening any reprisals in order to persuade employees to favor or disfavor any labor organization, or in any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Oil Workers International Union, C. I. 0., or any other labor organiza- tion, 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, and to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer Willie Rufus Jones immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority, and other rights and privileges; . (b) Make Willie Rufus Jones whole for any loss of pay he may have suffered by reason of the Respondent's discrimination against him, by the payment to him of a sum of money equal to the amount he normally would have earned as wages from the date of such discrimi- nation to the date of the Respondent's offer of reinstatement (exclud- ing the period from the date of the Intermediate Report to the date of this Order), less his net earnings during said period; J. S. ABERCROMBIE COMPANY 533 (c) Post at its plant in Sweeny, Texas,. copies of the notice at- tached hereto, marked "Appendix A." 11 :Copies of said notice, to be supplied by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent, be posted by it im- mediately upon receipt thereof and be maintained by it for at least sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees customarily are posted. Reason- able precautions shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director for the Sixteenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed in all other respects. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and O:,der of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL OFFER to Willie Rufus Jones immediate and full rein- statement to his former or substantially equivalent position with- out prejudice to any seniority or other rights or privileges previ- ously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination against him. WE WILL NOT interrogate our employees concerning their mem- bership in, activity on behalf of, or sympathy for, OIL WORKERS INTERNATIONAL UNION, C. I. 0., or any other labor organization. WE WILL NOT offer any benefits or threaten any reprisals in order to persuade employees to favor or disfavor any labor organiza- tion. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organi- zation, to form labor organizations, to join or assist OIL WORKERS INTERNATIONAL UNION, C. I. 0., or any other labor organization, 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, or to 11 In the event this Order is enforced by decree of a United States Court of Appeals, there !hall be inserted in the notice, before the words , "A DECISION AND ORDER," the words, "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." 844340-50-vol. 83-35 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refrain from any and all of such activities except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. All our employees are free to become or remain members of the aforementioned 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 mem- bership in or activity on behalf of any such labor organization. J. S. ABERCROMBIE COMPANY, Employer. By --------------------------------- (Representative ) (Title) Dated -------------------- This notice must remain posted for 60 consecutive days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER Joseph A. Butler, Esq., Fort Worth, Tex. for the General Counsel. Mr. Dial Murphy, Pasadena, Tex., for the charging Union. Messrs. Fritz L. Lyne, Esq., and George S. Terry, Esq., for the Respondent. STATEMENT OF THE CASE Upon charges duly filed by International Oil Workers Union,' affiliated with the Congress of Industrial Organizations , hereinafter called the Union , the Gen- 'The original charge was filed on March 25, 1947 charging violation of Section 8 (3) of the Act by the discriminatory discharge of one Richard because of membership in and activities in behalf of the Union and violation of Section 8 (1) "by the Acts set forth in the paragraph above, and by other acts and conduct, it by its officers, agents and employees, interfered with, restrained and coerced its employees in the exercise of the rights guar- anteed in Section 7 of the Act." It was stipulated by the parties that this charge was served on the Respondent on June 30 , 1947. The "First Amended Charge" which was dated August 1, 1947, and filed August 5, 1947, was served on the Respondent August 6, 1947. This charge added the name of one Palmer as an 8 (3) violation and was other- wise identical with the original charge. On August 8, 1947, the "Second Amended Charge" dated August 5, 1947, and filed August 7, 1947, was served, listing seven 8 (3) violations in addition to the two in the previous charge. On August 16, 1947, the "Third Amended Charge" dated August 14, 1947, and filed August 15, 1947, was served. This charge listed two more 8 (3) violations in addition to the nine contained in the "Second Amended Charge " On September 8, 1947, the "Fourth Amended Charge" was served This charge was dated August 23, 1947, and filed September 5, 1947. The "Fifth Amended Charge," adding one more name and retaining all but one of those contained in the "Fourth" was dated January 29 , 1948, filed February 2, 1948, and served February 4, 1948 The "Sixth Amended Charge" was dated March 2, 1948, filed March 5, 1948 and served March 9, 1948, this charge added the name of W. R. Jones, a pumper , gauger, switcher, and gave the date of his discharge as February 24, 1948 . Each of the amended charges contained a second paragraph identical with that contained in the Original Charge as quoted above. The Complaint was dated July 1, 1948, and was served on the Respondent and on the Union i J. S. ABERCROMBIE COMPANY 535 eral Counsel of the National Labor Relations Board 2 by' the Regional Director for the Sixteenth Region (Fort Worth, Texas) issued a complaint dated July 1, 1948, against J. S. Abercrombie Company, hereinafter called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and Section 2 (6) and (7) of the National Labor Relations Act (49 Stat. 449) and Sections 8 (a) (3) and Sec- tion 2 (6) and (7) of the Labor Management Relations Act, 1947 (61 Stat. 136) .' Copies of the charge, and all amended charges, the complaint, and notice of hear- ing were served upon the Respondent. With respect to the unfair labor practices, the complaint alleged in substance : (1) Respondent is and was a Corporation organized and existing under the laws of Texas and is and was engaged in the business of producing, distribution and sale of oil and related products in Texas; (2) Respondent in the conduct of said business is and was engaged in Interstate Commerce; (3) Oil Workers International Union,' affiliated with the C. I. 0. is a labor organization within the meaning of Section 2 (5) of the Act and of the Amended Act; (4) on or about February 24, 1948, Respondent discharged W. R. Jones,° because he joined or assisted the Union or had engaged in other concerted activities for the pur- pose of collective bargaining or other mutual aid and protection; (5) Respond- ent, through its officers, agents, servants, and employees, from on or about Oc- tober IT, 1946, vilified, disparaged and expressed disapproval of the Union, in- terrogated its employees concerning their Union affiliation and urged, threatened and warned its employees from assisting, becoming members of or remaining members of the Union and made promises of benefits to nonmembers and mem- bers for the purpose of inducing them either not to join or to withdraw from the Union ; various specific instances of such alleged unlawful conduct were set out in the Complaint but the Complaint, by its terms, was "not limited to such specific instances." The Respondent filed an answer on July 8, 1948, and an amended answer on July 30, 1948 (dated July 7 and 29 respectively). In its original answer the Respondent admitted the allegations as to its corporate organization and existence and as to its general business and as to its buying, selling and distributing sub- stantial amounts of materials in interstate commerce but alleged that it has only one plant, to wit, in Sweeny, Texas and denied all allegations as to ownership by registered mail dated July 1, 1948, and received by the Respondent and the Union respectively on July 2, 1948. On July 1, 1947, Edwin A. Elliott, Regional Director for the 16th Region, sent a letter by registered mail to the Respondent , stating, in part ; As a result of our consideration it does not appear that there is sufficient evidence of violations to warrant further proceedings Insofar as the charge alleges the discrimi- natory discharge of the following individuals : (then follows a list of the names listed in the Sixth Amended Charge, with the exception of W. R. Jones) I am, therefore , refusing to Issue Complaint except as concerns the allegation of Section 8 (a) (1) of the Act and Section 8 (a) (3) with reference to W. R. Jones. 2 The General Counsel and his representative at the hearing will be hereinafter referred to as the General Counsel. The National Labor Relations Board will be hereinafter referred to as the Board. 8 The National Labor Relations Act is hereinafter called the Act. The Labor Manage- ment Relations Act is hereinafter called the Amended Act. The Oilworkers International Union Is hereinafter referred to as the Union. The term "Union" Is also used in referring to the local organization of the Union. 8 W. R. Jones is also referred to in the record as Willie R. Jones, Willie Rufus Jones and Bill Jones. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of other plants; denied that the Union was a labor organization within the mean- ing of Section 2 (5) of the Act and denied the alleged reason for said discharge; alleged that on or about February 20, 1948, Jones negligently failed to "treat" certain oil as a result of which said oil was ruined and that on or about February 24, 1948, Jones was in charge of certain named leases and left same without permission and that for these reasons Jones was discharged for cause; still denying the allegations of the reasons for the discharge of Jones, pleads that even if true Jones would not be entitled to reinstatement and back pay under Section 10 (c) of the Amended Act ; denied' the allegations as to vilification, disparagement, expressions of disapproval, interrogation, urging, threatening, warning and prom- ising of benefits and the specific instances of same and excepted to said specific instances on the ground that all such alleged acts occurred more than 6 months prior to the date of the charge and are thus barred by the limitation under Section 10 (b) of the Amended Act; excepted to the allegations of vilification etc., and said specific instances on the ground that the same are too general and ambiguous to put the Respondent on notice ; denied discrimination in regard to the hire and tenure of Jones; denied interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act and of the Amended Act ; denied that the acts complained of occurred in connection with operations of the Respondent having a close, intimate, and substantial relation to trade, traffic, and commerce among the States and tended to lead to labor disputes burdening and obstructing commerce and the free flow of commerce; and denied that said alleged acts constituted unfair labor practices under the Act and the Amended Act. The Respondent's Amended Answer was substantially the same as the Original Answer except that it added a paragraph in which it demanded a Bill of Par- ticulars as to the alleged violations of Section 8 (a) (1) of the Amended Act. Pursuant to notice, a hearing was held in Bay City, Texas, on August 10, 11, 12, and 13, 1948, before the undersigned, Charles S. Donovan, the Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel, and the Respondent were each represented by a representative, and the Union was represented by a representative who was present throughout the hearing assisting the General Counsel in the presentation of the case. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the beginning of the hearing the Respondent filed and argued a Motion to Dismiss "the Sixth Amended charge" on the grounds that (1) the Union had failed to comply with Section 203.12 of the Rules and Regulations, Series 5 (before amendment of August 18, 1948) and (2) that the Sixth amended charge fails to show that the Union bad complied with Sections 9 (f), (g), and (h) of the Amended Act. This motion was taken under advisement. For reasons stated below it is hereby denied. Paragraph V (4) of the Respondent's "First Amended Answer" was treated by the undersigned as a motion for a Bill of Particulars and was denied, with the understanding that if the Respondent should be genuinely surprised or em- barrassed in any way by the introduction of evidence other than on the specific charges its rights would be protected either by granting a continuance or by other consideration. No such necessity developed during the hearing.' " See Goodyear Aircraft Corporation, 63 N. L. R. B. 1340. J. S. ABERCROMBIE COMPANY 537 The Charge Since t4e charge is attacked by the Respondent from two directions, (1) by its Motion to Dismiss, and (2) by paragraph V (2) of its amended answer, in which it sets up the "limitation" clause in the Amended Act,' it is appropriate to review here the authorities and examine briefly the history of "the charge" in order to determine, for the purposes of this case, its nature and functions both under the Act and under the Amended Act. (a) Under the Wagner Act Although the National Labor Relations Act was patterned after the Federal Trade Commission Act,' the latter contained no requirement that a charge should be filed as a condition precedent to the issuance of a complaint.' The Rules of Practice of the Commission provided, at the time of the passage of the National Labor Relations Act, and still provide, that any person, partnership or corporation "may apply to the Commission to institute a proceeding" and that "such appli- cation for complaint shall be in writing etc." Such rules also provide that the Commission shall issue a complaint whenever it shall have reason to believe a violation exists,10 irrespective of whether or not an "application" has been made. The practice of the Commission has always been not to serve a copy of the "application" and to treat the application as strictly confidential. The original Senate Bill out of which grew the National Labor Relations Act provided; "Whenever there is a charge or the Board shall have reason to believe that any person has engaged in or is engaging in any such unfair labor practices etc." 11 Thus it was originally intended that the Board be given the power to initiate similar to that allowed the Federal Trade Commission. In the original House Bill a"charge was required and no provision for initiative was made. The Senate Bill was amended, without debate, striking out the initiative provision. The Act was therefore passed with the same provision that now appears in the Amended Act and there is no indication of legislative intent other than the Act itself and such inferences as may be drawn from it. The term "charge" is never used as a noun in the Act 12 and is never defined or described in any way whatsoever nor is any reference made to it in any part of the Act except in Section 10 (b) ; "Whenever it is charged --------------------- " There is no requirement in the Act that the charge be in writing, and, giving the term its common meaning, for all that appears in the Act a telephone call or oral statement would have sufficed. Thus Congress left it to the Board and to the Courts to define the term and to otherwise deal with it. In its earliest promulgation of Rules and Regulations, however, the Board provided that the charge must be in writing." These rules also contained a provision that the charge should contain : "A clear and concise statement of the facts constituting the alleged unfair labor practice affecting commerce, particn- 7 Section 10 (b) (proviso). ° Consolidated Edison Co., 309 U. S. 261. Federal Trade Commission Act (38 Stat. 717; Section 5 (b). 10 Rules of Practice, Federal Trade Commission , March 9, 1948, Rules IV and V. n S. 1958 , 74th Congress , Section 10 (c). 12 The term "charges" as used in Section 10 ( b) is used in the sense of "allegations." It is used in that sense in the Federal Trade Commission Act which does not provide for a "charge." 18 Rules and Regulations , Series 1 (Adopted Sept. 14, 1935). 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD larly stating the names of the individuals involved and the time and place of occurrence." (underlining supplied). The underlined portion remained in the rule through two revisions 14 but was deleted on July 14, 1939.16 At!that time the provision was changed to read as quoted above without the underlined portion and has remained so through numerous revisions up to the present time. It is significant that the Trenton Garment Co. case," to which further reference will be made, was heard and decided prior to July 14, 1939, and yet holds that lack of particularity in the charge is cured by particularity in the complaint. It is also significant to note that the charge up to that date was required by the rules to be more specific than the Complaint is required to be under the present rules. The evolution of the charge starts with the first rules,17 which provided that it shall be in writing and continues through the Trenton Garment Co. case which holds that the "purpose of the requirements that the charge contain a clear and concise statement of the facts is to assure the Respondent due notice of the material facts," and through Beckerman Shoe Co." which holds that "the function of the charge is to call the attention of the Board to the fact that certain unfair labor practices are alleged to have been committed." That the conception of the Board as to the nature of the charge changed between the decisions of these two cases is obvious and is further borne out by the rule changes and by numerous decisions of the Board and the Courts since the Trenton case.10 In the case of Killefer Manufacturing Corporation 20 the Board went a step further in clarifying the definition of a charge when, after calling attention to the public nature of the Act, it said, "Accordingly, when in the course of an investigation begun upon charges duly filed evidence is disclosed that a Respondent had engaged in unfair labor practices not specified in the charges, public policy, as well as the policies of the Act, require the Board to proceed with respect to such unfair labor practices, and if, after a full hearing, it is found that such Respondent has engaged in such unfair labor practices, to order it to cease and desist therefrom, and to take such affirmative action as will remedy the effects thereof." In the Consumers Power Company case, in which the charge is worded in the general language of the statute, the Court said, "It would seem clear . . . that the provisions of Article II S 4, of the Board's rules and regulations are for the information of the Board, to apprise it of the nature of the unfair labor practices alleged with sufficient particularity to enable it to determine that the charges are substantial and not frivolous, and so that it may enter intelligently upon the exercise of its exploratory powers." 21 It is clear from an examination of the authorities cited and quoted that the one and only function of a charge up to the effective date of the Amended Act 11 was to authorize the Board to investigate and proceed further, if it should deem 14 Rules and Regulations, Series 1 (Amended ) Adopted April 27, 1936 ; Series 1 (Amended) Adopted April 27, 1938. 16 Rules and Regulations , Series 2, Adopted July 14, 1939. 16 4 N. L. R. B. 1186. 11 Rules & Regulations, Series 1, (Adopted Sept. 14, 1935). 18 19 N. L. R. B. 820, 822. 39 Mike Bierner, 20 N. L. R. B. 673 , 676, N 7 and 8, Block-Friedman Company, Inc., 20 N. L. R. B. 625, 627; N 4; For-Coffee-Edge Millinery Co. Inc., 20 N. L. R. B. 637, 639; National Licorice Company v. N. L. R. B., 309 U. S. 350, 369; Consumers Power Company v. N. L. R. B., 113 F. (2d) 38, 43; Lone Star Bag d Bagging Company, 8 N L. R. B. 244, 245, N 1 ; Shell,Petroleum Corp ., 10 N. L. R. B. 719, 720. 20 22 N. L. R. B. 484, 488, followed in Brown McLaren Manufacturing Co., 34 N. L. R. B. 984, 989, N 10; See Hills Brothers Company, 67 N. L. R. B. 1249, 1250. 11 See also N. L. R. B. v. American Creosoting Co.,,139 F. (2d) 193. 22 August 22, 1947. J. S. ABERCROMBIE COMPANY 539 it necessary, in order to carry out the policies of the Act. The test as to the sufficiency of its contents was whether or not it fulfilled this function, that is, whether or not the Board did proceed. The proof of the pudding is in the eating.2i Having performed its lone function, the charge died insofar as further use was concerned. The rules of the Board were for the purpose of informing the public of its requirements to the end that its initial steps might be facilitated and any or all of the provisions therein could be waived by the Board. The question of sufficiency was not litigable beyond the narrow question of whether or not it alleged that "Any person has engaged in or is engaged in any (such) unfair labor practice." 24 (b) Under Taft-Hartley Act Although the 80th Congress cannot be said to have been hesitant in adversely criticizing the Board in many respects, it is significant to note that nowhere in the discussions in either House or in any Committee has there been criticism of the interpretation of the first sentence of Section 10 (b) of the Act by the Board or by the Courts. The reenactment of this portion of the statute in is exact terms, particularly in view of the fact that Congress has an opportunity to change it had it thought a change necessary, must be taken as approbation if not adoption of the manner in which the matter had been handled. Further- more, Congress, by implication, adopted the Board's rule 26 that the charge shall be in writing by providing in the Proviso in Section 10 (b) that it should be filed and a copy served. There was no attempt on the part of Congress to change the nature or function of the charge from that found by the Board and by the Courts in the cases hereinbefore cited. Congress did, however, add a function to the one already enjoyed by the charge. Under the Amended Act the filing and service of the charge furnishes the limiting date for the newly enacted statute of limitations 2, Hence, in addition to what has been said of the charge in (a) (above) it can now be said that it must be in writing and filed and served no more than 6 months after the occurrence of the unfair labor practices in order to be the basis for a complaint. But adding this function neither adds nor detracts from the original function nor does it add to the requirement as to contents. (c) Effect of Amendment The practice of amending charges has become so prevalent and has been so generally recognized that no citation of authorities is necessary to show its propriety,27 although the necessity for such amendment is not clear in all cases in view of the authorities cited in (a) above. The enactment of the Section 10 (b) Proviso has made it important to determine the effect of such amend- ments particularly, as in the instant case, when the amendment is by substitu- tion. Although the charge has been held not to be a pleading, it nevertheless has some of the elements of a pleading 28 particularly under the Amended Act which requires that it be served within a certain time as a condition precedent to the commencement of the action which, under the Amended Act as under the Act before amendment, it commenced by the complaint. If the charge is dismissed 22 Anonymous. 2' The Act, 49 Stat. 449 S 10 (b) ; See Biggs Antique Company, 80 N. L. R. B. 345. 21 Series 4 , Sec. 203.9. 26 The Amended Act Section 10 (b) Proviso. 27 See Rules , Series 5 (as amended ), S 203.45; Series 4 S 203.3s (2d paragraph). 2$ N. L. R. B. v Indiana cE Michigan Elec. Co., 318 U. S. 9, 17. 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or withdrawn before the complaint is issued there is and was no action. In some respects it resembles a simple call of "Police!" by the owner of a house who suspects the presence of burglars and who, by his summoning of help from the authorities, permits them to enter and search his property which they would otherwise have no right to do. If no burglars are found the matter drops and no prosecution for burglary can be said to have been commenced. If a burglar is found then the prosecution commences later by complaint or information and indictment. This analogy is close to the charge before the Amended Act and is still close except for the addition of the function of de- termining the limitation (late under Section 10 (b). The addition of this last mentioned function gives to the charge one of the elements of the writ or complaint the time of drawing or service of which, in many jurisdictions, is held to determine the date for statute of limitations pur- poses. In those jurisdictions it is generally held that the nunc pro tunc doctrine applies to amendments 29 of the kind under consideration, whether by substitu- tion or otherwise. The same reasoning would seem to apply in the case of the change. Under the procedure followed in National Labor Relations Board pro- ceedings there is even greater reason why this doctrine should apply to the charge. As has been pointed out, the thing that authenticates proceedings by the Board is the making or filing of the charge. Thus the filing of the original charge starts in operation the machinery of the Board and the filings of amended charges does not stop that machinery but rather, if anything, continues its op- eration with renewed vigor. The restatement in amended charges of matter contained in the original or prior amended charges is not an abandonment of the previous charge and does not have the effect of nullifying it but rather of revivi- fying it, and bringing it down to date with respect to new matters that may be contained in the amendment. Amendment by substitution is simply a con- venient method of incorporating in one paper the parts of all previous charges that are saved and any new matter that may be added. Therefore, the statute of limitations, once having been satisfied by the timely filing and service of the original charge, cannot again be put into operation because of the filing and service of an Amendment8° The Respondent's Motion to Dismiss At the outset of the hearing the Respondent filed a motion to dismiss "the Sixth Amended Charge" and assigned as grounds therefor (1) that the charging Union in the sixth amended charge had failed to comply with Section 203.12 of the Rules and Regulations of the Board, Series si 5, and (2) that the sixth amended charge failed to show that the Union had complied with Section 9 (f), 9 (g), and 9 (h) of the Amended Act. It is to be noted that there is no contention in this motion or elsewhere in the record that the Union had not complied with these Sections of the Amended Act but simply that it did not so state in the charge. The Respondent does argue that there is a presumption of non-com- pliance but cites no authorities for such a contention and I can find none. With- out considering the form of the motion but treating it as a proper motion to dismiss the proceedings I find no merit in it. As had been stated previously 29 54 C. J., Sec. 320, and cases cited. 80 See National Licorice Co., 309 Ti. S. 350, 369, 376; See also Sunset Line & Twine Co., 79 N. L. R. B. 207. 81 Before amendment of August 18, 1948. J. S. ABERCROMBIE COMPANY 541 herein the Board's Rules and Regulations are for its own information" and in this instance, to aid its General Counsel in determining certain facts the,deter- mination of which is required before a complaint may be issued and if this determination can be made without the aid of the rule (and, as pointed out above, there is no contention that it hasn't) the Respondent, not being harmed, cannot insist upon a technical compliance. The Respondent points out, in his brief, that the Amendment of this Rule on August 18, 1948," has no application as it was "passed subsequent to the trial of this case." This may be so. However, the fact that the Board has abandoned this requirement indicates that it was not aided by it. Furthermore, if the charge was held to be defective as contended a proper remedy would be to allow an amendment to correct the deficiency, which, under the amended rule, is no longer necessary. It is not necessary to consider the question of whether or not the Board's decision in two cases 8' cited by the General Counsel apply to a complaint case. These two cases, both representation cases, go to the question of litigability of the question of compliance with the sections of the Amended Act, not simply to compliance with a rule. For the reasons stated the motion is hereby denied. The Regional Director's Letter of July 1, 1948 The Respondent contends that the letter to it from the Regional Director dated July 1, 1948, operates as a dismissal of all 8 (a) (3) violations except with refer- ence to W. R. Jones, and all 8 (a) (1) except with reference to W. R. Jones, and, in his oral argument maintained that "That particular paragraph of the order of dismissal (the latter of July 1, 1948) very clearly shows the intent of the Regional Director" to dismiss such violations. Without going into a techni- cal discussion of grammatical construction and determining whether the phrase "with reference to W. R. Jones" modifies all or only that part following the conjunction, or whether the term "except" must be interpreted as limiting and confining, a reading of the whole letter leaves no doubt that the Regional Director not only intended to say but said, in effect, that it did not appear that there was sufficient evidence to support charges of discriminatory discharges of the named individuals and that he was "therefore" refusing to issue a complaint except as to all other matters in the charge. If the Respondent had placed its contended interpretation on this letter upon its receipt it must have been taken completely by surprise on finding in the mail on the same day a registered letter containing the complaint which should have convinced it that the intent of the Regional Director was otherwise. Without considering the technical question of the effect of failure to raise this issue in the pleadings, it having been first raised at the hearing, I find that the Regional Director's letter of July 1, 1948 had no greater effect than to dismiss the 8 (a) (3) charges in the Sixth amended charge pertaining to the persons listed in said letter. The Statute of Limitations-Section 10 (b) " The Respondent, in its answer, contends that the 8 (a) (1) violations charged are barred by limitation under Section 10 (b) of the Amended Act in that all 33 See Consumers Power Company v. N. L. R B. ( supra), and other cases cited in to 19 83 The Amendment of August 18, 1948, deletes the requirement that compliance with Sections 9 (f), (g), and '(h) be stated in the charge. 39 Lion Oil Company, 76 N. L R. B. 565; Beattie Mfg. Co., 77 N. L. R. B 361. u whether this is a true statute of limitations is not necessary for decision here. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such acts are alleged to have occurred more than 6 months prior to the "date of the charge." " Some of the alleged 8 (a) (1) violations occurred more than 6 months prior to the service of the original charge which was served on the Respondent June 30, 1947. The succeeding amended charges were served on the following dates respectively : August 6, i947; August 16, 1947; September 8, 1947; February 4, 1948; and March 9, 1948. The allegations in the com- plaint as to Jack Contrell, a supervisor, set dates of October 18 and 19, 1946, and "March" 1947; as to J. T. Reeves, a supervisor, March 27, 1947, and "in April" 1947; as to D. Bledsoe, a supervisor, "in March" 1947; as to J. R. Butler, general manager, on or about August 25, 1947; as to T. Lytle, a supervisor, "in the fall of 1947." It has been held in numerous decisions of the Board and of the Courts that the limitation provision of Section 10 (b) has no retroactive application97 and that- the 6-month period does not commence until August 22, 1947, in cases where the alleged unfair labor practices took place prior to that date 88 The filing and service of the original Charge, therefore, was sufficient to stop the statute insofar as all unfair labor practices alleged to have taken place prior to June 30, 1947, are concerned. Under the decision in the National Licorice case, this service would seem to have been sufficient for all subsequent alleged violations but if it was not, the filing and service of the subsequent amended charges effectively filled the gap.e° The Respondent, in its brief, argues that the general allegation of 8 (a) (1) violations in the charge "is too general and ambiguous standing alone to charge any violation of the Act." I fail to see any ambiguity and as to its generality it is not the function of the charge to set out in detail the acts complained of.`° This is the function of the complaint and the Respondent, having been fully informed in the complaint, has not been harmed by any lack of particularity in the charge" As has been pointed out, the charge has two functions: (1) To, authorize the Board to start its "machinery" and (2) to set the date for limitation purposes. The charge in this case has performed those functions. Nothing more can be expected of it. The fact that the name of W. R. Jones does not appear until the sixth amended charge cannot affect the general allegation of 8 (a) (1) violations which has appeared in all of the seven charges and is no way tied up with the 8 (a) (3) allegation as to Jones" The cases cited by the Respondent to the effect that the adding of a new party is tanta- mount to the bringing of a new action have no application here. The instant action is not a private action but was brought for the "protection and enforce- ment of public rights." `s I find that the limitation provision of Section 10 (b) of the amended act does not bar any of the violations alleged in the complaint or proved at the hearing. 88 The Amended Act (Section 10 (b)) sets the date as the date of the " filing" and "serv- ice" of the charge, which is at least as late as the date of the charge. 87N. L. R. B. v. Gate City Cotton Mills, 167 F. (2d) 647 (C. C. A. 5) ; N. L. R. B. v. Brozen, 166 F. (2d) 812 (C. C A. 2) ; Union Products Co., 75 N. L. R. B. 591 ; Briggs, Mfg. Co., 75 N. L R. B. 569; Barton Brass Works, 78 N. L. R. B. 431 ; Bewley Mills, 77 N. L. R. B. 774; Detroit Gasket Mfg, 78 N. L. R: B. 670; Marshall Bruce Co., 75 N. L. It. B. 90. 88 Electric Auto-Lite Co., 80 N. L. R. B. 1601 ; Olin Industries, Inc., Case No. 1-C-3107. 21 See cases cited under "Effect of Amendment." w Compare Itasca Cotton Mfg., 79 N. L. It. B. 197. n See cases cited under fn. 19. u See 54 C. J., Sec. 320, and cases cited. 18 National Licorice Co. v. N. L. R. B., 309 U. S. 350, 362, 363 and cases cited. J. S. ABERCROMBIE COMPANY 543 At the conclusion of the hearing both the General Counsel and the Respondent argued orally and subsequently both filed briefs. The union representative waived oral argument and filed no brief. The Respondent filed "proposed finding of fact and conclusions of law." " 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 and, at all times material to the issues in this case, was a Texas corporation having its principal office and place of business in Houston, Texas, and is engaged in the business of producing, distributing, and selling petroleum and the various derivatives thereof. It maintains a plant in Sweeny, Brazoria County, Texas, and owns or leases and operates numerous producing oil wells in and near Sweeny. It was admitted by the Respondent and the undersigned finds that the Respond- ent is engaged in interstate commerce within the meaning of the Act and the Amended Act." II. THE UNION IS A LABOR ORGANIZATION The Oil Workers International Union is composed of local unions established in various parts of the United States. The employees working for the different companies in the oil industry and related industries are members of the local unions which are affiliated with and are part of the international union which in turn is affiliated with the Congress of Industrial Organizations (C. I. 0.). The purpose of the Oil Workers International Union is to assist and work with em- ployees in matters of collective bargaining with their employers as to wages, hours of work, and other conditions of employment. It takes up grievances and labor disputes and other conditions with employers as well as any matters which affect the welfare of employees in relations with their employer. The Interna- tional has 64 agreements with various employers in the area including the location 44 I hereby find and rule on said proposed findings and conclusions as follows : I find and rule as requested as to Nos. 2, 3, 4, 5, 6, 34, and 46. I deny requests numbered 11, 16, 17, 18, 19, 20, 22, 23, 24, 28, 29, 30, 31, 32, 35, 36, 37, 38, 39, 40, 41, 43, 44, 45, 47, and 48. The matter contained in request Nos. 1 and 7 is fully treated elsewhere In this report. I refuse to rule as requested in No. 8, but find that the "Special Exception" referred to was first raised in the Respondent's Answer. The timeliness of the filing of this "Special Exception" is more fully treated elsewhere in this report. On request Nos. 9 and 10 I do not find or rule that the letter of the Regional Di- rector, dated July 1, 1948, was a "Dismissal Order," but treat this matter more fully elsewhere in this Report. As to requests numbered 12, 13, 14, 15, 21, 25, 26, 27, and 33, I do not find in the negative as requested, but I find as to each of said'requests that the General Counsel has failed to prove the affirmative. As to request No. 42, the matter contained in which is Treated elsewhere in this Report, I rule that none of the evidence upon which findings have been made in this Report is unsupported by the pleadings. 4 This finding is based on the following stipulation by the parties : The Respondent, dur- ing the period under consideration, purchased supplies in the amount of approximately $2,000,000 outside the State of Texas. Its Interstate sales amounted to approximately $3,000,000 or $4,000,000. Its intrastate sales amounted to approximately $16,000,000 or $17,000,000. Of the $16,000,000 or $17,000,000 sales within the State of Texas about 90 percent found its way into interstate commerce Indirectly. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Respondent's plant, and participates in negotiating agreements, settling com- plaints thereunder, and carrying matters to arbitration. The Union has never been recognized or certified as the exclusive bargaining agent of the employees of the Respondent but it admits such employees to membership. I find that the Oil Workers International Union is a labor organization within the meaning of the Act and the Amended Act 48 III. THE UNFAIR LABOR PRACTICES (A) The Alleged Discriminatory Discharge of Jones The undisputed evidence shows that Willie Rufus Jones was employed by the Respondent and its predecessor from 1929 to the date of his discharge on February 24, 1948. He was charter member of the Union and was elected president at its first meeting held in West Columbia. He did not attend this meeting but did attend the first meeting that was held in Sweeny subsequently. The names of the officers were published in the local newspapers and the Respondent's super- visors and superintendents knew of Jones' election. He held the office of president continuously from the time of his election through the date of his discharge. There is no evidence that Jones even did anything to further the interests of the Union other than accepting the office of president and attending an occasional Ineeting.9' At the time of his discharge and for about 5 or 6 months previously his job was "gauger , pumper and switcher" on "outside leases," leases taken over by the Respondent from other companies for operation. Jones had charge of from 9 to 11 leases, the number varying from time to time. At the time of his discharge, as will appear, many of the leases required less than the usual attention. The leases were scattered over a large area and to cover them all it would be necessary to travel 8 or 10 miles. A typical outside lease would consist of a well, 2 tanks, a separator, meters, and other equipment, including on some leases a heating system and chemical unit. One of the leases, First Capital State Bank lease, was within the city limits of Sweeny and the others were scattered about in different directions, not in a straight line. His duties consisted of "gauging" the tanks every morning, by getting on top of each tank and dropping a line through a hole in the tank to determine how much oil it contained. He would set the amount down in a hand-book. He also changed the chart on each meter, the charts show- ing the amount and pressure of gas passing through the line over a 24-hour period. When occasion arose he did some pumping, a special operation when the oil is not in "good shape." Also, on occasion, he would "treat" the oil by the use of a chemical process. When a tank would be full, he would shut the oil and turn it into another tank, a process known as "switching." Jones testified that his hours of employment were from 7 a. in. to 3 p. in. with an hour for lunch "" It was,Jones' custom to start the day by first visiting the First Capital Bank well and then make the rounds of the other leases, gauging 49 This finding is based on the testimony of Dial Murphy and on the Constitution and By-Laws of the Union admitted in evidence. 47 The General Counsel, in his brief , calls attention to a Representation case involving the parties . I have not referred to this case nor have I considered the statement in the General Counsel' s brief in any way. See Administrative Procedure Act Section 7 (d) and Section 8 48 The evidence is conflicting on this point. Witnesses for the Respondent testified that Jones' employment consisted of an 8-hour day and that if he took an hour for lunch his quitting time should have been 4. As it will be pointed out, this discrepancy has no important bearing on the case. See Note 56. J. S. ABERCROMBIE COMPANY 545 the tanks, changing the charts, opening the "bleeders" (connections at the bottom of each tank, for the purpose of drawing off water and other impurities), and doing other things that appeared necessary, including "shakeouts," a process of testing oil in the center of the tank. Shakeouts were not always taken. He used his own automobile for transportation between the leases. The morning tour of all the leases took from 7 to 8: 30, sometimes a little longer, according to the circumstances. He would end up at the Wallis Lumber Company lease where there was a little shack which he used for an office and where he kept his records and his personal belongings. The data he collected at the various leases would be put on a company report from which was collected by a man between 8:30 and 9: 30 a. in. Jones would not wait for the collector but would leave the record on his desk for him. After performing the duties outlined above, it was his custom to perform other duties throughout the day, depending on conditions, such as getting the full tanks ready for the district gauger, which included taking temperatures, bleeding the water off, looking at the "bottom," taking "shakeouts," and generally preparing the tanks to be run into the pipe line, in which case he would witness and sign the "run ticket" showing how much oil had been sent into the pipe line. On February 24, 1948, Jones followed the above routine and finished that phase of his work about 8: 30 a. m.99 On that date only five wells required "gauging," some being shut down, but the charts had to be changed on all. After finishing his morning report, Jones assisted a fellow employee whose car was stuck in the mud near his headquarters on the Wallis Lumber Co. lease. While he was so engaged, Leon Tharp, a metre repairman and the one whose duty it was to pick up the reports, came by to pick up the reports.'" The stuck car opera- tion was finished at about 9:20.81 Jones then went to R. R. Stevenson lease, about s/4 of a mile away, and on the way saw Ted Lytle, assistant superintendent in charge of production, and Harry Elliott, production superintendent, in a car on the main highway riding in the opposite direction. They do not appear to have seen him. Jones left the Stevenson lease at a little after 10 82 and went to Sweeny for coffee. He finished coffee at about 10: 40. He then met L. D. Wallace who drove up in a car with a trailer and they talked a bit about the sale of a cow. Shortly after that he left for his home to arrange for delivery of the cow, arriving there about 11 o'clock. 63 Some time shortly after 12: 05 o'clock, after '° Jones testified that it was about 9 : 30 but witness Leon Tharp's testimony indicated that it was about 8: 30. The time reading on the Capital State Bank well chart indicates that Tharp was at that well at 9 •15 after picking up Jones ' reports and performing other duties I therefore find Tharp's estimate more accurate than Jones'. 60 Tharp partially corroborates Jones on this point , saying that he remembers a man being stuck in the mud but is not sure of the date. 51 Jones testified 9 : 50 but this was based on the assumption that he finished his reports at 9 30 and adding "the time it took us to do this " I find that Jones under estimated the time consumed by the stuck car as indicated by Elliott 's testimony that he and Lytle started for the leases shortly after 9 : 30 or 10 . 00. It is probable, therefore , allowing for normal discrepancies, that Jones passed these two on the road about 9 : 30 or a little after. Lytle's estimate was 10 or 10 • 30, a little late, I find. This also accounts for Lytle and Elliott not seeing the stuck car. sa Based on Jones ' testimony, and adjusted as in Note 51, allowing for discrepancies. 13 Jones' estimate of time, I find , is not always accurate . However, I find that he did arrive at his house at about 11 . Lytle corroborates this, or at least the fact that he was at home at 11. 546 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD eating his lunch, Jones was at First Capital Bank lease " where he examined the chart from a distance. His wife was with him and accompanied him during the entire afternoon . He then went to Sweeny and back to the Wallis Lumber Lease where he switched a tank. He also did considerable other work at Wallis. He left Wallis for the Shelle-Donovan lease where he did some further work which took him 'til about 1:30 when he went back to Wallis where he made a test which took him until about 2: 00 p. m. From Wallis, Jones went to the Texas- McDonald lease, a distance of 3 miles because the chart on that lease required unusual attention 66 He remained at Texas-McDonald until almost 3 o'clock, which, according to his version of his employment contract , was his quitting time." He then went home. At about 9: 30 a. m. on the 24th Elliott and Lytle started out to find Jones. They did not see him when they passed him on the road at 9:30 or thereabouts " and they looked over all the leases in Jones' charge and could not find him. They then drove out by Jones' house where they saw him "with some other fellows driving some cattle."" After lunch they again took up the search about 2 o'clock, passing through Sweeny.". They toured the leases " and did not find Jones on any of the leases. They finished up not later than 3 p. m. At about 3 p. m. Elliott, himself giving up the chase, told Lytle to go and locate Jones. There is no evidence that Lytle made any further effort in that direction. On Sunday the 22nd of February at about 10:30 Lytle saw Jones' car parked on the "edge of Sweeny."" 64 Jones testified that he was there before 12 and then went to Sweeny , arriving there a little before 12. The testimony of Leon Tharp, supported by the time indicated on the Capital City chart, is convincing that Jones could not have been at that lease before 12: 05. The Respondent attempts to make an important point of this bit of evidence as bearing on the credibility of Jones. To me, it is but another instance of Jones' inaccuracy in estimating time- w Elliott's testimony as to time is even less accurate than Jones'. Elliott testified that he and Lytle were at Wallis "between 1 : 30 and 2: 30 , maybe nearer 2: 30," and did not see Jones nor did they see him at all during the afternoon trip. Allowing for reasonable discrepancies of time, it is not unlikely but highly probable that, taking into account the locations of Wallis , Texas McDonald and Capital City Bank and the location of Sweeny, the two cars missed each other when Jones was going to Texas-McDonald and the others were headed for Wallis This also reconciles with Lytle's testimony that they were at "the lease" at "I'd say around 2 o'clock," although Lytle's testimony as to time is also gen- eral and indefinite throughout the record 65 Jones testified that his hours were from 7 to 3 and that he was allowed time for lunch which he usually took sometime between 12 and 2 and that he always put a full 8 hours on his timesheet. Both Elliott and Lytle testified Jones was supposed to work 'till 4 if he took an hour for lunch . At the time of the discharge neither Elliott nor Lytle knew whether or not Jones had worked 'till 4 on the 24th as they had both abandoned the chase before 3, nor did they know when Jones was accustomed to quit. Jones had not turned his time in for the 24th until after the discharge . Therefore, the lunch hour situation could not have been in any of their minds at the time of discharge and could not have been one of the reasons for it. 57 The evidence shows that the distance from Elliott 's office to Jones' leases is about 3% miles. 68 Lytle says 10: 30 or 11 o'clock. I find, as previously noted, it was about 11 o'clock. 69 Lytle testified that he saw Jones' car at the Magnolia filing station when he was passing through Sweeny to pick up Elliott for the afternoon trip . Elliott was not with him then. Jones places the Magnolia incident as the previous day. I find that Lytle was mistaken and that he saw Jones there the previous day, without Elliott. 60 Elliott testified they first visited First Capital Bank ; Lytle testified Wallis. 51 There is nothing to indicate whether or not this was on Jones' leases. The First Capital Bank well was on the "edge of Sweeny." J. S. ABERCROMBIE COMPANY 547 On February 23, 1948, Lytle went over to the leases about 10: 30 and didn't find Jones, first visiting the Wallis lease. He then went to Sweeny and Jones' car was parked outside the hardware store. He then had a cup of coffee and came back out and Jones' car was still there. Then he made another round of the leases a and came back to Sweeny and Jones' car was gone so he drove by Jones' house and Jones' car was there. This was about 11:30. At 1 o'clock, when Lytle passed by Wallis on his way from lunch Jones was there. On his way home, a few minutes after two Lytle met Jones at the "edge of Sweeny" coming back toward Sweeny. At 5:30 in the evening of the 24th Elliott and Lytle went to Jones' house and "caught" him at home. Elliott told him that they were not satisfied with his work, that he was not staying on the job, and that there had been reports of bad oil and that he, Jones was responsible for it 63 and that he was discharged 84 Elliott testified that there was in effect a company rule regarding the taking of time for lunch. He did not know the origin of the rule or how long it had been in effect. It was not in writing. Neither Elliott nor Lytle nor any official of the Respondent appears to have known whether or not Jones was accustomed to take time for lunch at the time of his discharge. It was not until after the discharge that Jones turned in his time. Lytle had never been on Jones' leases after 3 o'clock and didn't know whether Jones worked until 3 or 4. Jones testified that it was his custom to take time out for lunch on this job, and to quit at 3. My conclusions as to Jones' movements on the days in question and other matters pertaining to his alleged discharge are based on the conflicting testimony of the several witnesses, some of which I see no reason for reciting in detail. Counsel for the Respondent, in his brief, has analysed in detail much of the testimony of Jones and other witnesses and calls attention to discrepancies which, he believes, affect the credibility of Jones. The discrepancies he points out are those normally to be found in detailed testimony of this sort and are due to the failure of witnesses to live up to a standard somewhat higher than that usually set for human beings or to the differences to be found between men as to accuracy in judgment, memory for details and ability to state clearly. 62 Since Jones invariably used his car when going around to the leases It is not clear why Lytle went to the leases to find him when he knew his car was in Sweeny. ' Elliott testified that he had had no "bad reports" about Jones up to February 24, and that he had not decided to fire Jones at the time he received the report on that date. At another point in his testimony, he testified that he was told 2 or 3 weeks before the 24th that Jones had given some bad oil. In view of this, and his further testimony of the many possible causes of bad oil and that he didn't consider Jones responsible for bad oil, I find that, although this was given as one of the reasons for discharging Jones in the conservation at 5 . 30 on the 24th, Elliott did not so consider it and it was not a reason for the discharge. Elliott also testified that Jones had not turned in proper reports and had given some "bad tests" (not to be confused with bad oil) but his testimony on this was so vague and indefinite and his testimony as to having no records of these bad tests was so weak and unconvincing that, coupling this with the failure of Lytle to corroborate It, and the failure of Jones to mention it in his testimony of the conversation, I find that improper reports and bad tests were not mentioned nor were they considered by Elliott in relation to the discharge of Jones. 04 It is interesting to note that Lytle had recommended Jones' discharge in the conversa- tion with Elliott on the morning of the 24th. He was, therefore, not affected by the events of the 24th, but had decided Jones should be fired for reasons occurring prior to this date, namely, the events of the 22nd and 23rd. Since Elliott would not accept Lytle's recommendation on the morning of the 24th, Lytle's aim would naturally be to convince him and his Interest was not in finding Jones rather than finding him which is demon- strated by the fact that on the first trip with Elliott , although he was acquainted with Jones' job he first went to the lease upon which Jones was least likely to be. c 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find that if there ever was a rule of the Respondent regarding lunch time for men in Jones' position it had been abandoned or was not enforced by the Respond- ent 65 and I further find that since Elliott and Lytle did not know what Jones' quitting time was at the time of the discharge, they could not have had the lunch time in mind as a reason for the discharge. I further find that there was no rigid rule enforced by the Respondent requiring men in Jones' position to remain on the lease continuously ; that Jones' job was such that if he took care of the wells assigned to him, changing the charts, making the switches, tests, etc., as the necessity arose, there was no necessity for his remaining on the leases continu- ously; and that Jones, having fewer than his usual number of wells in operation at the time of his discharge, was justified in being off the leases as much as he was on the days in question ; and as much as his supervisors thought he was ; that Jones did take care of said wells in a good workmanlike manner and con- scientiously performed all of the duties required of him as an employee. I further find that the leases assigned to Jones could not have operated without frequent attention to the details arising and that the fact that another man was not assigned to attend to these details during the 3 days during which time Jones was being "checked" is convincing evidence that Lytle and Elliott knew, at the time of the discharge, that Jones was performing his duties prop- erly, and I find that they did have such knowledge. I find that the Respondent deviated sharply from its general policy when it discharged Jones, an employee of long standing with an excellent employment record, without notice or warn- ing,66 and with a recommendation that he be not rehired. Concluding findings as to Jones' discharge The evidence and findings as to the justification for the discharge of Jones lead to the conclusion that Jones was not discharged for any of the reasons assigned by the Respondent and I so find. However, the burden was on the Gen- eral Counsel to prove more than this. It was his burden to prove that the cause of Jones' discharge was a discriminatory one and that the discrimination was due to his union or concerted activities. Disproving the causes of the discharge assigned by the Respondent does not accomplish this. Merely disposing of the negative does not give rise to the affirmative. At the time of Jones' discharge there was not, insofar as the record discloses, any marked activity on the part of the Union. There is no evidence that Jones was at that time or at any other time doing anything to further the interests of the Union. Jones had been president for over a year and the Respondent had knowledge of this fact for a long time. During this period Jones' pay was in- creased once and he had retained the particular job upon which he was working at the time of his discharge for about 8 months. He liked this job. It does not appear that anybody else was discharged at or about this time. There were others retained by the Respondent who had been much more active in the Union than Jones had been. There was evidence that the Respondent was not kindly disposed toward the Union. Most of the supervisory employees who testified, testified that they did not believe in the Union. Some testified more strongly than others, varying 65 See N. L. R. B. v. Ford et at., 170 F (2d) 735 (C. A 6). 66 Lytle testified that some weeks earlier Jones left the lease and when asked why told Lytle he had to take his wife to the hospital Lytle told him then that whenever he 144t the lease "we wanted to know about it beforehand." I find that this was not a warning or an admonition to remain on the lease continuously. J. S. ABERCROMBIE COMPANY 549 in degree from a mere lukewarm feeling to obvious hostility. However, there is no evidence that there was any anti-union activity on the part of the Re- spondent at the time of Jones' discharge as contrasted to the Respondent's actions several months before. Jones' discharge was isolated from all this. Jones was an old employee. He was a charter member of the Union and its first and only president. He rarely attended meetings. There is no evidence of union activity on the part of Jones other than is inferrable from these facts. While there appears to be some authority for the principle that if no other reason is apparent union membership, let alone holding office, may logically be inferred as the reason for discharge,' I do not draw such an inference. The fact that the union president was discharged under the circumstances present and that the reasons assigned are not acceptable as justification, cause me to suspect that there is a casual connection between the holding of such office and the discharge. But the evidence does not show this connection. The question, I feel, is a close one but on the negative side of the line. For the reasons stated I find that the General Counsel has failed to sustain the burden of proof that Jones was discriminatorily discharged. B. The alleged violations of Section 8 (1) of the Act and of Section 8 (a) (1) of the Amended Act. The alleged interference, restraint, and coercion of employees by the Respondent was contained largely in statements of supervisors of the Respondent to em- ployees and conversations between supervisors and individual employees and groups of employees. ( a) Jack Cantrell was, at the time when the following incidents took place, assistant production superintendent of the Respondent and was a supervisor within the meaning of the Act of Section 2 (11) of the Amended Act. 1. On October 18, 1946, Cantrell talked to Oscar Ward, an employee at the Ashley-Wilson boiler station, one of the leases owned or controlled by the Re- spondent. Ward and others were at work there at the time. This was on the morning following the first organization meeting of the Union at West Columbia Community Hall. Cantrell called Ward aside and asked him "why we went over and organized the Union; what had he done to us ; was we trying to get his job?" and said "You realize I could run you off this morning if I wanted to, that the Union couldn't help Ward any " 6s 2. On the same morning at the same place Cantrell also talked to L. D. Wal- lace, an employee. He asked Wallace whom he was mad or sore at or what benefits he figured he'd get out of joining the Union and what he wanted out of it. When told by Wallace that he wanted some kind of assurance of a job, Cantrell said, "Well, the only assurance of a job you have got here is doing whatever me and Ted Lytle tells you to." George Creel, another employee, was present at this conversation e' 61 N L. R. B. v Tex-O-Kan Flour Mills Co, 122 F (2d) 433, 438 61 This is based on the testimony of Ward and was not corroborated and was denied by Cantrell However, I credit it because I was not only favorably impressed by Ward's straightforward manner and apparent sincerity, but was adversely impressed by the hesitant manner, evasiveness and poor memory of Cantrell, which is apparrent from the simple reading of the record Furthermore , Ward's testimony is consistent with that of witnesses to similar events, also denied or evaded by Cantrell, as will appear. 61 Creel corroborated Wallace substantially. Cantrell, when asked if there was any talk between him and Wallace about the Union, said, "No, not that I recall " I credit Wallace's testimony and Creel's corroboration. 844340-50-vol 83-36 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. On the same morning 4' at Ashley-Wilson, Cantrell picked up Paul Lindsey, another employee, in his car and told him he had a job for him "down at the river." Lindsey was a painter. They drove off and Cantrell then said he had no job for him but wanted to talk to him about the Union and asked Lindsey, if he knew anything about it. Lindsey said that he did." They met Willie Samford, another employee, on the way and took him along in the car." They talked about the Union and Cantrell asked them why they wanted a Union and told them they didn't need a Union and that he could do more for them than a Union could. Cantrell told them that the supervisors had had a meeting that morning and they knew everybody who had joined the Union and that Vernon Chambliss, pro- duction superintendent, was going to come down and fire everybody who had a union card and that they had done wrong in joining the Union " 4. On the same morning Cantrell asked George Creel, an employee, what he was mad about and why he had joined the Union. This was at the Ashley- Wilson station and at about the same time that Cantrell talked to Wallace and others.74 5. In January 1947 75 Cantrell talked to Clyde Hooper, an employee, at the B. R. L. D. station, a plant owned or controlled by the Respondent. He told Hooper to get into his car and sit down, which Hooper did. Cantrell then asked Hooper what he thought about how things were going as to the Union. Cantrell said, "We are not going to have anybody working in the Union. You were in the army and so was I. We are going to try to put this thing something similar to the army basis." He said the Respondent was going to get rid of every G. D. man who was in the Union and that the Respondent had a way of finding out every man that belonged to the Union and was going to get rid of them.78 6. On October 19, 1946 at 1 a. m. Jack Cantrell talked to Willie Allen Cantrell, an employee, at B. R. L. D. station and aslied him why the men wanted a union and what they thought they would benefit by It." 70 At one place in the record the date is stated as October 1, 1946. I find this is an error. The date was October 18. 'n At one point in his testimony Lindsey and Cantrell asked him if he belonged and at another point he testified that he volunteered the information that he did . This dis- crepancy is of minor importance and I make no finding based on either version. 72 At one point Cantrell testified that he met Samford first but both Samford and Lindsey say otherwise. I believe Samford and Lindsey, though the point is of little significance. 78 Based on Lindsey's testimony, substantially corroborated by Samford . Cantrell admits the conversation with Lindsey and Samford and says that they "probably" dis- cussed the Union although he does not recall what was said. He denied the statement regarding Chambliss Chambliss denied having made the statement but this has little bearing on the question of Cantrell's attributing the statement to him. Cantrell's testi- mony, as elsewhere throughout the record, is evasive and unreliable . I credit Lindsey's testimony. 74 Cantrell did not testify as to this conversation which is based on Creel's testimony which I credit. ' 71 There is some confusion in the record as to this date . The direct examination of Hooper was predicated on the assumption that the conversation took place in March 1947. In cross-examination the witness testified that it took place in January 1947. The witness also testified , in direct, that he left the employ of the Respondent on January 27, 1947. I therefore find that the conversation took place in January. 78I credit the testimony of Hooper upon which these findings are based . Cantrell was again evasive and inconclusive in his denial . When asked, "Did you ever discuss with Hooper putting the job on the same basis as the army basis ?" Cantrell replied, "I don't know, sir, I don't know . I didn't." 77 In rebuttal Jack Cantrell was asked by Respondent 's counsel, according to the record, whether he had a conversation "some morning approximately 1 a. m." with W. W. Samford. This, I find, was an error on the part of the reporter and that counsel asked this question regarding Willie Cantrell and not Willie Samford, and that the witness so understood the J. S. ABERCROMBIE COMPANY 551 (b) J. K. Reeves and Rebel Byram- ' On or about March 27, 1947, Rebel Byram, an employee, had a conversation with his supervisor, J. K. Reeves. The testimony of the two is in sharp conflict as to exactly what was said but the testimony of both indicates quite clearly that there was a great deal of friction between them. Byram, who was still in the employ of the Respondent at the time of the hearing, was a very ardent union man and Reeves, like most of the supervisors for the Respondent, was not, to say the least, a union sympathizer. The appearance of each on the witness stand and the strong and definite manner in which each testified showed them both to be highly spirited and determined types. Placing two such men in the close relationship these two occupied in the operations of the Respondent, holding opposite views as to the Union and, it appears, as to other matters, would seem to assure frequent clashes. Such clashes did occur. Byram testified that on the above date Reeves asked him what he would do if he (Reeves) said he would run him off if he joined the Union and, when Byram replied that he would go "all the way to the top of the ladder (meaning manage- ment) to see if it was so, if he did," Reeves left the building and said that Byram had a lot to learn. Byram also testified that on another occasion, shortly after the first conversation, Reeves offered to bet $100 that if the plant went Union 100 men would be ]aid off. Reeves denied both of these incidents. I do not find it necessary to determine whether or not Reeves made these re- marks. Under some circumstances it might be found that a question such as that attributed to Reeves by Byram might be found to be a threat in spite of its inter- rogative form but under the circumstances here, and taking into account the natures of the two men involved, I find that if it was asked it was not a threat nor was it so considered by Byram. Byram's reply that he would "go to the top of the ladder" was conditioned upon the making of the statement. This is borne out by the fact that Byram had already been a member of the Union for several months at the time of the alleged question and was, and still is, obviously an active member and did not hesitate to let Reeves know he was, and further that he is, or was at the time of the hearing, still in the employ of the Respondent. To "run a man off" is a colloquialism meaning to discharge. The matter of the $100 bet likewise falls short of constituting a threat. Clearly if Reeves had stated, as his opinion, that if the plant went Union 100 men would be laid off. Such a declaration would be protected under Section 8 (c) of the Amended Act °S Backing up that opinion with a wager would not change its nature to that of a threat but would be a mere expression of his confidence in the opinion. It is also very doubtful that the making of such wagers could be held to be within the scope of his employment, but I find it unnecessary to so decide. Byram further testified that he and Reeves talked about the Union on several occasions but in answer to a leading question by the General Counsel he did not testify that Reeves questioned him about "the union activities." Byram's testimony that at one time they had "pretty much of a knock-down and drag-out about the Union" is too vague and indefinite to warrant a finding. There was considerable testimony about a "hot argument" on or about July 22, 1947. Although the two witnesses varied in their versions of this affair they question. Jack Cantrell did not recall asking the question referred to by counsel. I credit Willie Allen Cantrell in this respect. The "bull sessions" referred to by Jack Cantrell evidently had reference to some other incidents. 78 Section 8 ( c) provides , among other things, that an opinion shall not "constitute or be evidence of" an unfair labor practice . Thus the alleged opinion is protected by the Act -even though rendered before the effective date thereof. 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'iere in agreement on one point, that Reeves accused Byram of causing a turmoil among the men. Byram also testified that Reeves said, "If I stubbed my toe a little bit that he would run me down the road." Reeves testified that he told Byram "he was causing trouble then in the plant and if he didn't straighten up and go on doing his work and leave the agitating off that didn't concern the job I would run him off if he didn't keep up with his work, which he wasn't at the present time." The turmoil, or "agitating," according to Reeves, was caused by Byram's "riding" some of the employees for "trying to get out of their class" and associating with "bosses" and "big shots" and "riding" some of the nonvet- eran employees and supervisors, including Reeves, for being "deferment collec- tors" and "draft dodgers." In the course of this "heated argument ," according to Byram , Reeves said "I (Byram ) was getting information as a union member from the representative uptown using cuss words all along there which was a bunch of lies, etc.," and that he called the union representative some uncomplimentary names which could not be repeated before the lady reporter. The "heated argument" started over a matter not connected in any way with union or anti-union activity or statements by either Byram or Reeves. It started about the operation of certain engines in the plant and the question of Byram's authority over a helper to whom Reeves gave direct orders, it being Byram's opinion that the orders should have been through him. It is clear that, although Reeves' action might have precipitated the argument, Byram actually started it. The argument continued through various degrees of "heat," culminating in a near fist fight between the two men." If the above remarks concerning the Union could, under some circumstances, be considered as "interference, restraint, or coercion" within the meaning of the Act, I do not consider them so under the circumstances here. They were, if they were actually made, merely sparks engendered by the general heat of the argument. The practice of calling names, even unprintable ones, seems to have engrafted itself on the American system of industrial relations8° (c) J. K. Reeves, William J. Hagner, and Rebel Byram William J. Hagner was, at the time of the following events, superintendent of the refinery of the Respondent and the immediate superior to J K. Reeves. In June 1947, Reeves and Hagner called Byram into the "needle shop" and said they wanted to talk to him. The testimony is sharply conflicting as to what the con-, versation was. Byram testified that they told him there was some trouble going on which they wanted to get straight ; that Reeves said there was some confusion among the men due to union activity, the Union then being in its organization stage, and that he (Byram) was a good man and a good leader and worker, which they appreciated, and that Hagner wanted to talk to him ; that Hagner confirmed what Reeves had said about his ability to work and said there were to be some better jobs for which he would be eligible and there were some instructions, a training program, going to be given and that Byram, being the senior man in the refinery, could be lead-off man in the schooling for better jobs ; that they wanted him to quiet down the confusion among the men ; that they said that he, being 7° Two witnesses, Clayton and Scott, were present during different parts of the argu- ment but were not present at the same time. Each testified as to the things that were said while he was in the room. Neither appears to have heard anything said about the Union but such remarks might well have been made while neither was present. 80 See Sunset Line and Twine Company, 79 N L. R B . 207, see also Nelson Iron 'Works, Inc., 23 L R. R. M. 1130. J. S. ABERCROMBIE COMPANY 553 :senior man in the plant would be first to be called on . Byram further testified that at that time every man in this particular plant had already joined the Union and that , following the above conversation, he told them as a leader that "they -would be a little more on the ball and have to cut clown on our conversation -enough that it wouldn't interfere with our work ." The cross-examination of _Byram consisted largely of an inquiry as to what other jobs were then available and as to Byram's ability to handle a better job. Reeves and Hagner both corroborated Byram as to asking Byram to stop the confusion but attfibute the confusion to him. Reeves testified that part of the -disturbance consisted by Byram 's union activity . They claimed that several complaints had come in from the men, particularly from Rag Ward, James Clay- ton, and Floyd Scott. All three of these testified but were not examined on this point. Ray Ward was a supervisor. Both Reeves and Hagner denied Byram 's testimony as to the talk about a better job , and both testified that there were no better jobs available at that time and furthermore that Byram was not qualified and is not now qualified for a better job. Ward also testified that Byram was not qualified for a better job. Hagner testified that he did not threaten to fire Byram if he didn't reform. After .this conversation , according to Hagner ,'they received a few but not many com- plaints about Byram. From my observation of Byram on the witness stand it appeared to me that he was a young, vigorous, high spirited man of more than usual intelligence taking the other witnesses , including supervisors, as a standard . He seemed, from my observation of him, to have the qualities of leadership and aggressiveness .that would qualify him for a considerably higher position than the one he then occupied with the Respondent However, I defer to the more expert judgment of those under whom he worked and accept their testimony as to his lack of ,qualifications for something better. It also seems clear from their testimony and fiom Byram's testimony that no better jobs were available at the time of ,the conversation referred to above. Hagner's testimony that he did not threaten Byrain with dismissal coupled with the fact that there is no evidence of any threat or statement as to the conse- ,quences of Byram's failing to comply with the requests, "we would appreciate it very much if he would keep his mouth shut" and "we requested him to stop it," make it difficult to reconstruct the conversation without also accepting Byram's testimony that an attempt was made to induce him to cause the disturb- ances to cease, irrespective of whether the view is taken that Byram was causing the disturbances or that they were being caused by others over whom Byram was assumed to have had a degree of control . The conclusion that an induce- ment was held out to Byram as a reward for his agreement to quell the disturb- ances is difficult to escape . I cannot escape it. In our industrial life, sad to say, few things are accomplished without either fear of punishment or hope for reward. The only inducement testified to was by Byram that although no direct promise was made it was implied that better jobs were coming up in the near .future and that he was in line for one. I find that such an inducement was held out. This is borne out by the fact , as testified to by Byram, that after this con- versation he, as a leader , went to the men and told them to cut down the con- versation and "be a little more on the ball " and is further borne out by the fact that, according to Hagner , only a few complaints came in after that. The fact that no other jobs were available and that, as testified by Hagner , there were none coming up that he knew of at that time , and the further fact that Byram was not qualified for a better job in the opinion of his supervisors , convinces me 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not that the inducement was not held out but that Hagner had no intention of ful- filling his part of the bargain. It is clear and undisputed that Byram was an ardent union worker and that he took great pride in the fact, as he claimed, that a large percentage if not all of the employees in the refinery were signed up. According to his testimony the "confusion" among the men that was discussed in the above conversation was due to union activity. Reeves testified that the complaints he received from Ward, Clayton, and Scott were that Byram "would just try to shut the job down there In order to try to put his point over or something, such as trying to get these men to join the Union" and that he talked to Hagner about it and the above con- ference resulted. Riseves' testimony as to the conversation itself was that they told Byram they understood "that he was causing a lot of confusion." Reeves does not say that the "confusion" discussed at the meeting was connected with the union activity but it is clearly inferrable, and I draw the inference, that the "confusion" discussed was the same as that complained of and which was the reason for the calling. of the conference, namely, Byram's union activity in the plant. Hagner testified that they told Byram "we had been getting a lot of complaints from the men" and that "a lot of talk he was passing around was not much to their liking" and "we told him also we felt the kind of talk he was putting out, and the amount of it was interfering with his work, etc. and we requested him to stop it." Again, Hagner does not say that the complaints and "the kind of talk . . . and the amount of it" were about union activity on the part of Byram. Throughout his testimony he denies that there was any talk about the Union in the conversation and that the Union was even mentioned. In view of the testimony of Byram and Reeves, Hagner's testimony that the Union was not discussed is incredible. The complaints he mentions are obviously the complaints Reeves mentions and were, according to Reeves, about Byram's union activity. The confusion Byram mentions, the confusion Reeves mentions and the "kind of talk and the amount of it" mentioned by Hagner were obviously the same thing and, as found above, was in regard to union activity on the part of Byram. The conference having been called for the purpose of discussing this very thing it is inconceivable, in view of the testimony, that it should not have been discussed. It is within the, province of an employer to control union activity within his plant during working hours and to discipline or discharge an employee, under certain circumstances, for conducting such activity. However, it is not within the province of an employer to offer inducements of reward to an employee engaged in such activity either in the plant or elsewhere on condition, however subtly stated, that he cease such activity " I find that Hagner did offer the inducement of a better job to Byram on the implied condition that he would cease his union activity. (d) J. R. Butler and Rebel Byram J. R. Butler was, at the time of the following events, vice president and gen- eral manager of the Respondent. On or about August 25, 1947, Ben Horn, per- sonnel director of the Respondent, told Byram that Butler wanted to see him. After about 30 minutes delay during which Byram and Horn were engaged in general conversation, Butler arrived. Byram testified that after a few minutes conversation Butler said to him, "What the hell can a Union give you that I can't give you." Shortly there- 81 Harvey Chalmers d Son, Inc., 75 N. L. R. B. 484. 52 This is based entirely on Byram's undisputed testimony. J. S. ABERCROMBIE COMPANY 555 after other officers of the Respondent began to appear. When Byram was about to leave Horn told him that Butler wanted to talk to him some more. They got into a car and drove away and stopped at the home of Mr. Frank Whitley, as- sistant vice president and general manager, and were invited in to have a drink. There were present Mr. Ben Horn, Mr. Frank Whitley,83 Mr. Butler, and one other. They had a drink and more were offered to Byram but he refused. Finally, Mr. Butler asked the others to leave and Byram and he were there alone. Butler repeatedly asked Byram what the Union could do for him that he (Butler) could not do. Butler also made some disparaging remarks about one Casey, a union representative. In the course of the conversation Mr. Butler told Byram that he was en- titled to a better job and he was sure that he would get it and advised him to contact Whitley, Howell, and Horn and tell them that he (Butler) told him to see them and for them to see if they would not straighten him out with a better job to which he (Butler) thought he was entitled. I fully credit Byram's testimony in connection with the above events. I find this is another instance of an attempt to buy him off by an official of the Re- spondent.' I construe Butler's repeated questions of what the Union could do that he could not do for Byram, followed by his indefinite offer of a better job, as a bidding against the Union for Byram's support. It should be borne in mind, in this connection that all of Byram's supervisors were of the opinion that he was not qualified for anything better. Thus, his value to the Respondent as an employee could not have been a factor in inducing Butler to decide that he was entitled to something better. The value to the Respondent of his sup- port in its struggle against organization of the plant by the Union was the motivating impulse. (e) Meeting called by J. R. Butler about November 1,194684 George Creel was present at a meeting supposedly called by J. R. Butler about 10 or 15 days after October 17, 1946, at the BRLD pumping station shack, which was owned or controlled by the Respondent. Mr. Butler, John Bass, a superinten- dent for the Respondent, and Vernon Chambliss,86 another superintendent, were present as well as a number of employees. Jack Cantrell had notified Creel to be there. At this meeting John Bass advised the employees that if they wanted a union to go to Austin and get a charter and form their own union and warned them of how the C. I. O. came out in the Hughes Tool Company of Houston. There is nothing in the record to indicate that J. R. Butler, general manager of the Respondent, was not available to testify. Vernon Chambliss, although admittedly at this meeting, did not deny the above statement. John Bass ap- pears to be no longer connected with the Respondent and was not available as a witness. I therefore place no significance on his failure to testify. Under these circumstances I credit the undisputed testimony of Creel that the above statement was made. The making of the above statement to a group of employees and under the above circumstances is an attempt on the part of the Respondent to interfere 83 Mr. Whitley testified but was not examined on this incident. Neither Mr. Howell. Butler nor the "other" testified. " Based on the testimony of George Creel. 86 Neither Butler nor Bass testified. Chambliss testified that he was present at such a meeting He was not examined on what took place 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the free choice of its employees of an organization to represent them. It is not such an expression of "views, argument, or opinion" as would be pro- tected by Section 8 (c) of the Amended Act. (f) John Bass and Willie Allen Cantrell Willie Allen Cantrell, an employee, testified that on October 19, 1946, in John Bass' office he had a conversation with John Bass, superintendent, Frank Whitley, Bass' assistant, and Russell Waite, construction superintendent, all supervisors for the Respondent, at which Vernon Chambliss was also present. Bass, accord- ing to Cantrell, wanted to know why they wanted a union and what the men meant by "security" and how they figured the Union would mean security. "They tried to point out to me where the Company officials would make a better working Respondent, was not available and was working somewhere in Oklahoma. Waite's absence was not explained 88 Whitley testified but denied knowledge of any such meeting. Chambliss testi- fied that no such statement was ever made in his presence. Neither Waite nor Bass testified. At one point in the record Bass' absence was explained by Re- spondent's counsel on the ground that he was no longer in the employ of the Respondent, was not available and was working somewhere in Oklahoma. Waite's absence was not explained " I credit the testimony of Cantrell for the reason that his manner impressed me as truthful and for the reason that the two witnesses who denied it merely testified to a negative, one denying the meeting altogether and the other denying the state- ment. Furthermore, the statement is in line with the testimony of other wit- nesses to other events indicating a general policy of the Respondent which was apparent throughout the record to quiz various employees as to why they wanted a union and to induce active union members by various means to cease their efforts in behalf of the Union. (g) John Nolan Talbert and James Carl Bruce James Carl Bruce, an employee, testified to a conversation he had with John Nolan Talbert about July 30, 1947. Talbert testified that he was, at the time of the hearing, a "gang pusher" or foreman over a gang of seven or eight men. At the time of the alleged conversa- tion Talbert was a gauger. Bruce was a switcher. A switcher is a helper to a gauger and in this case Talbert had a slight measure of authority over Bruce. The evidence is not convincing, however, that Talbert was a supervisor within the meaning of the Act and of•Section 2 (11) of the Amended Act. The test of whether or not a person has the "authority to effectively recommend" transfers must be a prospectant one. The fact that on an isolated occasion, such as this, Talbert recommended the transfer of Bruce or even that he, in the presence of a supervisor, actually ordered the transfer, is not controlling of the question of whether or not he had such authority. Any person, even a stranger, might have recommended that an employee be transferred and his recommendation has been accepted. The fact that an employee's recommendation is accepted does not make him a supervisor. The order of transfer made in the presence of Jack Cantrell 80 In the Respondent's amended answer there was a "demand" for a bill of particulars. I denied it with the understanding that if the Respondent was genuinely surprised or embarrassed I would allow a continuance for the' purpose of taking further testimony or depositions In doing so I took into account the fact that a continuance at that time would have been inadvisable Respondent claimed surprise at the testimony as to Bass, who was not named in the complaint. I found that such surprise was not sufficiently harmful to the Respondent to warrant a continuance and, in fact, none was requested. J. S. ABERCROMBIE COMPANY 557 with the tacit assent of the latter was the act of Cantrell rather than Talbert. Talbert's testimony that he did it of his own initiative does not affect the matter. I find that the General Counsel has failed to sustain the burden of proof that Talbert was a supervisor or that any statements made by him were not within the scope of his employment or that the Respondent is bound by them. (h) John Galyean and James Carl Bruce James Carl Bruce testified that John Galyean, a supervisor told him Bob Looney and Willie Samford, two employees, were "agitators" and were "talking about union and agitating the men all the time" and that they were going to be fired- They were fired. There is no testimony as to when the alleged statement was made. Galyean denied having made the statement. I do not find it necessary to determine whether or not this statement was made. While it might have had some corroborative value in determining whether the discharges of these two men were discriminatory, which is not an issue in this case, it has no significance, standing alone, as to any issue in this case. It is a mere statement by one person, who happens to be a supervisor, of his opinion or prediction or even of his knowledge of what is to be done by somebody in the future and a statement of his opinion or knowledge of the ,reasons for such anticipated action. (i) Dan Bledsoe and Wesley Cann Harvill Wesley Cain IIarvill, an employee, testified that in March 1947 at the Re- spondent's boiler station one Dan Bledsoe made certain statements in regard to the Union. His testimony was undisputed. Harvill testified-that Bledsoe was a shift operator and "had a shift" in the- gasoline plant and was in charge of a shift of 12 or 14 men. I find it unnecessary to determine whether or not the statements attributed to Bledsoe were actually made or whether or not they constituted interference, restraint, or coercion. The statements themselves are vague and indefinite and I am not sure that I could understand their import even if I found it necessary to do so. I find, on the above evidence, that the General Counsel has not sustained the burden of proof that Bledsoe was a supervisor or that the statements at- tributed to him were within the scope of his employment by the Respondent. (j) Russell Waite and Henry 0. Palmer In March 1947 Henry C. Palmer, an employee, had a conversation with Russell Waite, construction superintendent Palmer's undisputed testimony was that Waite told him, using "pretty bad language," that if he wanted to stay on the job he did not want to hear anything more about the Union ; that Waite said he did not know if he was or was not a member and that he did not care ; and that he further said "if the outfit went Union everything would be contracted out there and we wouldn't have no job." There is no evidence as to what talk about the Union was objectionable to Waite nor of the amount of it or of the circumstances. The fact that Waite said he did not know and did not care whether or not Palmer was a member does not suggest that the objectionable talk was very strongly in favor of the Union or even that it was not talk against the Union. Actually the record does not show whether Palmer was a member of the Union or what his views were concerning the Union:, With no knowledge of what the talk was it is impossible to deter- mine whether or not objection to it is a violation of the Act. Since Waite, was superintendent of construction , his positive statement that the work would be contracted out in the event of a union , would be given great 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD. weight. However, here again, there is no evidence of the circumstances or of the manner in which these words were spoken. Palmer's testimony was not corroborated nor was there any testimony to explain it. The witness did not quote Waite verbatim and there is nothing in the record to indicate what were the words used by Waite. The witness did not impress me as one who could be depended upon to accurately report a conversation. The words themselves, in paraphrased form as they appear,in the record, are susceptible of many inter- pretations equally consistent. They could have represented an opinion held by Waite as to the probable result of unionization. In that event they would be protected by Section 8 (c) of the Amended Act. They could have been an expres- sion of fear that Waite himself, as well as the others, would have no job. Hire again they would be protected. It is also true that they could have constituted a threat and have been uttered for the purpose of influencing Palmer against the Union. On the evidence as it stands I am unable to determine their import. For the above reasons, I find that the General Counsel has failed to sustain the burden of proof that any of the statements by Waite constituted interference, restraint or coercion within the meaning of the Act. (k) Russell Waite and William Bainbridge William Bainbridge, an employee, and a member of the Union testified that be had a conversation with Russell Waite, construction superintendent, in May of 1947. His testimony was not disputed. He testified that Waite had asked him how he "got mixed up in that mess" and when told by the witness that he always believed in a union and was always a union man, Waite said, "There are going to be lots of men fight you, lots of men against you." After refreshing his memory from a written statement he had made the witness also testified, in substance, that Waite had said'that if the plant went union it would not hurt the production department but would hurt the construction department because the Company would contract the work out. Most of this testimony was brought out by leading questions on the part of the General Counsel.' The witness further testified that Waite asked him what the men wanted and what the disturbance was about and that when told by the witness that it was mostly a question of seniority Waite said he did not believe in seniority but believed in friendship and qualifications. At one point in his testimoney the witness said that he made the written state- ment in May of 1947, "the evening that me and Mr. Russell (Waite) had our confusion." 87 The statement itself, which was admitted in evidence, -purports to have been executed on July 24, 1947. The witness' memory appeared to me to be very poor, as manifested by his failure to testify as to an important part of the conversation until he refreshed his memory from the statement and then only by leading questions on the part of the General Counsel. Furthermore, his testimony that the statement was made the evening of the conversation further indicates a poor memory, when the paper itself shows clearly, and I find, that it was not made until several weeks later. I believe his story was affected, unconsciously, by discussion with others. I found this witness generally unreliable and can put no credence in his uncor- roborated testimony. I therefore find that the General Counsel has failed to sustain the burden of proof with respect to the statements attributed to Waite by this witness. 87 An obvious error. I find that he meant "conversation." J. S. ABERCROMBIE COMPANY 559 (1) Ted Lytle and Willie R. Jones About September 1947 Willie R. Jones, an employee, and president of the Union, testified he had a conversation with Ted Lytle, his supervisor, in which Lytle said to Him, "Jones, how is the Union getting along?" to which Jones re- plied, "Well, I don't know Lytle, I don't go very often." Lytle said, "Whom else have you all got now?" to which Jones answered, "I just couldn't tell you because I don't go very often. I don't go to the meetings very often...." About Christmas time in 1947, the witness testified, he had another conversa- tion with Lytle in which Lytle again questioned him, substantially as in the first conversation and also about whether or not Jack Cantrell was the "biggest cause of this stir-up." There was a further conversation between Lytle and Jones at which Jack Cantrell was present and in the course of which Jones was offered a foreman's job. As to the first conversation, which was not denied by Lytle, I credit Jones. I found him a truthful and generally reliable witness as to all of his testimony except that at some points in his testimony he was inaccurate as to minor details and as to time. As to the second conversation, also not denied, I find that Jones' testimony is also credible. As to the portion where the "cause of the stir-up" was discussed and also the conversation when Jack Cantrell was present I find that neither of these has any significance. Concluding findings as to interference , restraint, and coercion I find that the following acts constituted unlawful interference with , restraint, and coercion of employees in the exercise of the rights guaranteed in Section 7 of the Act and of the Amended Act : (1) The questioning of Ward by Cantrell as to why the men organized the Union ; (2) The questioning of Wallace by Cantrell as to what benefit he figured he would get out of the Union ; (3) The questioning of Lindsey and Samford as to why they wanted a union; (4) The questioning of Creel by Cantrell as to his reasons for joining the Union ; (5) The questioning of Willie Allen Cantrell by Jack Cantrell as to why the men wanted a union and what they thought they would benefit by it; (6) The questioning of Byram by Butler as to what the Union could do for him that Butler could not do ; (7) The calling and holding of the meeting by Butler at which the men were advised to get a charter of their own ; (8) The questioning of Willie Allen Cantrell by John Bass as to why the men wanted a union and how they figured the Union would mean security ; (9) The questioning of Jones by Lytle as to the membership of the Union; (10) The conversation in which Cantrell stated to Ward that he could "run you off" and that the Union could not help Ward any ; (11) The conversation in which Cantrell stated to Wallace that the only as- surance of a job he had was doing whatever Cantrell and Lytle told him ; (12) The conversation in which Cantrell stated to Lindsey and Sanford as to the supervisors' meeting and that Chambliss would fire all union men : (13) The conversation in which Cantrell stated to Hooper that they " were not going to have anybody working in the Union" ; 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (14) The conversation between Reeves, Hagner, and Byram , in which Hagner offered Byram a better job on the condition that he would cease his union activity ; (15) The conversation between Butler and Byram, in which Butler stated that Byram was entitled to a better job ; and (16) The statement by Bass to Willie Allen Cantrell that the company officials would make a better working place than the Union could. Nearly all of the Respondent's witnesses , consisting mostly of supervisors, testified that they'were not friendly toward the Union. Some did not like "this Union," others did not believe in a union "out there," others were not in favor of unions in general. Several of the supervisors testified that at periodical super- visors' meetings , the Union was discussed , and others testified that at the same meetings there was no discussion of the Union. I find that the Union was discussed at such meetings. There is no evidence of what was generally said at the meet- ings, 88 but it is clear from the testimony that nobody spoke in'favor of the Union. One of these meetings took place on October 18, 1946. It was after this meeting that Jack Cantrell talked to Ward, Wallace, Lindsey, Samford, Creel, and Hooper, and it was early the next morning that he talked to Willie Allen Cantrell. It was this same day (October 19, 1946) that Willie Allen Cantrell had the conversation with Bass, Whitley, and Waite in the presence of Chambliss. The first organization meeting of the Union took place on October 17, 1946. The fact that so much activity took place immediately following the Union's first meeting and the meeting of the supervisors, indicates strongly that the supervisors' meeting of October 18 was of such a nature that it caused all these supervisors to make a concerted drive to nip the Union in the bud by attempting to call off the men interviewed and to induce them to call off others and I so find. The important part that Jack Cantrell played in this activity was due to his position as Assistant Superintendent of Production, the department in which the union movement had made the most progress. I find that the acts set out above, which I have treated individually as isolated • instances of interference, restraint, and coercion, constituted collectively under the circumstances hereinbefore set out, interference, restraint, or coercion of employees in the exercise of the rights guaranteed in Section 7 of the Act and of the Amended Act. I find that the General Counsel has failed to sustain the burden of proving that the following acts constituted interference , restraint, or coercion of employees in the exercise of the rights guaranteed in Section 7 of the Act and of the Amended Act : (1) The conversation between Reeves and Byram on or about March 27, 1947 „ (2) The conversation between James Carl Bruce and John Nolan Talbert about July 30, 1947; (3) The conversation between James Carl Bruce and John Galyean ; (4) The conversation between Dan Bledsoe and Wesley Cain Harvill in March 1947; (5) The conversation between Russell Waite and Henry C. Palmer in March 1947; and (6) The conversation between Russell Waite and William Bainbridge in May 1947. 88 Lindsey testified that Jack Cantrell told him of such a meeting held October 18, 1946, as hereinbefore set out. J. S. ABERCROMBIE COMPANY IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 561 The activities of Respondent set forth in Section III above, occurring in connection with the operations of 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 engaged in unfair labor practices, the undersigned will recommend that it cease and desist therefrom and take the following affirmative action which it is found will effectuate the policies of the Act and of the Amended Act. Since it has been found that the General Counsel has not sustained the burden of proving that W. It. Jones was discriminatorily discharged the undersigned will recommend that the complaint be dismissed in this respect. Having found that the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act and of the Amended Act and thus violated Section 8 (1) of the Act and 'Section 8 (a) (1) of the Amended Act, the undersigned will recommend that the Respondent cease and desist therefrom. Because of the circumstances surrounding the questioning of, and promises and statements to employees and the lapse of time since the last unfair labor practice occurred, as indicated in the facts found, and because of the absence of any evidence that danger of other unfair labor practices is to be anticipated from the Respondent's conduct in the past, the undersigned will not recommend that the Respondent cease and desist from the commission of any other unfair labor practices. Nevertheless, in order to effectuate the policies of the Act and of the Amended Act, the undersigned will recommend that the Respondent cease and desist from the unfair labor practices found. Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. Oil Workers International Union, C. I. 0., is a labor organization within the meaning of Section 2 (5) of the Act and of the Amended Act. 2. By interfering with, restraining, and coercing its employees in the exercise of 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 and of Section 8 (a) (1) of the Amended Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act and of the Amended Act. 4. The General Counsel has failed to sustain the burden of proving that the Respondent violated Section 8 (a) (3) of the Amended Act by discharging W. R. Jones or by refusing to reinstate him. RECOMMENDATIONS Upon the above findings of fact and conclusions of law, upon the entire record in the case, and pursuant to Section 10 (c) of the Amended Act, the Trial 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Examiner recommends that J. S. Abercrombie Company, Houston, Texas, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Oil Workers International Union, C. I. 0., or in any other labor organization of its employees, by interrogating its employees, or any of them, concerning their union affiliations, activities, or sympathies, or by making express or implied threats or promises to its employees, or any of them, regarding the effect of joining or refraining from joining or withdrawing from said Union or any other labor organization ; (b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Oil Workers International Union, C. I. 0., or any other labor organization, 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 and the Amended Act. 2. Take the following affirmative action, which the undersigned finds will effectuate the policies of the Amended Act : (a) Post in conspicuous places in the plant of the Respondent at Sweeny, Texas, copies of the notice attached hereto and marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and be maintained by it for at least sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted and including particularly the bulletin boards in the production department. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material ; (b) Notify the Regional Director for the Sixteenth Region in writing within twenty (20) days from date of the receipt of this Intermediate Report setting forth in detail the manner and form in which the Respondent has complied with the foregoing recommendations. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Inter- mediate Report and Recommended Order or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Immediately upon the filing of such statement of exceptions and briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Statements of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeo- graphed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46 should any party desire permission to argue orally before *the Board, request therefor must be made, in J. S. ABERCROMBIE COMPANY 563 writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 29th day of December 1948. CHARLES S. DONOVAN, Trial Examiner. 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, 1947, we hereby notify our employees that : WE WILL NOT discourage membership in OIL WORKERS INTERNATIONAL UNION, C. I. 0., or in any other labor organization of our employees, by inter- rogating our employees or any of them concerning their union affiliations, activities, or sympathies or by making express or implied threats or promises to our employees , or any of them, regarding the effect of joining or refraining from joining or withdrawing from said Union or any other labor organization WE WILL NOT in any like or related manner, interfere with, restrain or coerce our employees in the exercise of the right to self-organization, to form labor organizations , to join or assist OIL WORKERS INTERNATIONAL UNION, C. I. 0., or any other labor organization, 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 Labor Management Relations Act, 1947. J. S. ABERCOMBIE COMPANY, Employer. Dated -------------------- By ------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.