The Clymore Co., Inc.

In the Matter of THE CLY^IORE COMPANY, INC. and OIL WORKERS INTER- NATIONAL UNION, CIO Case No 16-C-1090-Decided June 22, 1945 DECISION AND ORDER OD On December 28, 1944, the Trial Examiner issued his Intermediate Re- port in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices, and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the respondent filed exceptions to the Intermediate Report and a brief in support thereof. No oral argument before the Board was re- quested by the parties, and none was held The Board has considered the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, The Clymore Company, Inc., San Antonio, Texas, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Oil Workers International Union, affiliated with the Congress of Industrial Organizations, or in any other 'In agreeing with the Trial Examiner 's finding that the respondent's unfair labor practices affected commerce within the meaning of the Act, we note that the lead and equipment found by the Trial Examiner to have been purchased by the respondent during the year ending July 1, 1944, was used at the respondent 's Pettus plant , and that of such purchases , lead and equip- ment valued at $12 ,000 and $1,200 , respectively, came from points outside the State of Texas; we further note that the products sold by the respondent to the United States Navy , in the one direct sale mentioned in the Intermediate Report, were processed at the respondent 's Pettus plant 62 N L. R. B. No. 93 726 THE CLYMORE COMPANY, INC. 727 labor organization of its employees , by discriminatorily discharging or refusing to reinstate any of its employees , or by discriminating in any other manner in regard to their hire or tenure of employment, or any term or con- dition of their employment ; _ (b) 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, affiliated with the Congress of Industrial Organizations , 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 bargain- ing or other mutual aid or protection , as guaranteed in Section 7 of the Act 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Elbert J. Lane, Jesus Moreno, Antonio Aguire, Joe Sykes. and R. J. Knocke immediate and full reinstatement to their former or sub- stantially equivalent positions , without prejudice to their seniority and other rights and privileges ; (b) Make whole Elbert J Lane, Jesus Moreno, Antonio Aguire, Joe Sykes, and R. J. Knocke for any loss of pay they have suffered by reason of the respondent's discrimination against them , by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of the respondent 's discrimination against him to the (late of the respondent's offer of reinstatement , less his net earnings during such period; (c) Post at its plant at Pettus , Texas, copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director of the Sixteenth Region, shall, after being duly signed by the respondent's representatives, be posted by the respondent immedi- ately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material ; (d) Notify the Regional Director for the Sixteenth Region in writing, within ten (10) clays from the date of this Order , what steps the respond- ent has taken to comply herewith APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, N\ e hereby notify our employees that: 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We will not in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Oil Workers International Union, -affiliated with the Congress of Industrial Organizations, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection. We will offer to the employees named below immediate and full rein- statement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously en- joyed, and make them whole for any loss of pay suffered as a result of the discrimination. Elbert J. Lane Jesus Moreno Antonio Aguire Joe Sykes R. J. Knocke All our employees are free to become or remain members of the above- named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of em- ployment against any employee because of membership in or activity on behalf of any such labor organization. THE CLYMORE COMPANY, I NC (Einployer) By (Representative) (Title) Dated NOTE: Any of the above -named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 clays from the date hereof, and must not be altered, defaced , or covered by any other material. INTERMEDIATE REPORT Messrs. John H. Garver and Earl Saunders, for the Board. Messrs Vinson, Elkins, Wecnis, and Fiancis, by Leroy Jeffers, Esq. of Houston, Tex., for the respondent Mr. William J. Tromblcy, of Beaumont, Tex, for the Union. STATEMENT OF THE CASE Upon a second amended charge filed on July 17, 1944, by Oil Workers International Union, affiliated with the Congress of Industrial Organizations, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Sixteenth Region (Fort Worth, Texas), issued its complaint dated October 4, 1944, against the Clymore Company, herein called the respondent, alleg- THE CLYMORE COMPANY, INC. 729 ing that the respondent at its plant in Pettus, Texas, had engaged in and was en- gaging in unfair labor piactices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act Copies of the complaint accompanied by notice of hearing thereon were duly served upon the respondent and the Union In respect to the unfair labor practices, the complaint alleged in substance that from on or about June 21, 1944, to the (late of the complaint the respondent had vilified, disparaged, and expressed disapproval of the Union; had interrogated its employees concerning their union affiliations; had urged, persuaded, threatened and warned its employees to refrain from assisting, becoming members of, or re- maining members of, the Union ; and that on or about June 22, 1944, the respondent discharged its employees, Elbert J Lane, Jesus Moreno, and Antonio Aguire, and on or about June 23, 1944, discharged its employees Joe Sykes and R. J Knocke and thereafter refused to reinstate said employees for the reason that they had joined or assisted the Union or engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection The respondent's answer, filed October 14, 1944, denied tlt-e allegations of the com- plaint with respect to commerce, admitted the discharges and refusal to reinstate the named employees, but denied that it was for the reason alleged and denied com- mission of the other unfair labor practices alleged Pursuant to notice, a hearing was held on October 18 to 20 inclusive, in Beeville, Texas, before the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel and the Union by its representative. Full opoprtunity was afforded all parties to be heard, to exam- ine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the opening of the hearing counsel for the respondent moved to strike paragraph 8 of the complaint on the/ ground that it was not based upon a charge. The motion was denied The respondent at the close of the hearing moved to dismiss the com- plaint for want of jurisdiction of the Board. This motion was denied At the close of the hearing Board's counsel moved to amend the complaint to conform to the proof in matters of form. The motion was granted. Thereafter the parties argued orally before the undersigned. No briefs were filed with the undersigned, although the parties were afforded an opportunity to do so. 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 a Texas corporation, having its principal office in San Antonio, Texas, and operating plants at Pettus and Refugio, Texas The Pettus plant, to which the unfair labor practice charges are limited, is a topping plant2 which processes gasoline, kerosene, fuel oil, and gas oil from crude oil The respondent's plant at Refugio extracts gasoline from natural gas, the result being a high-octane blending product Adjoining the respondent's plant in Refugio is the Refugio Refinery Com- pany, another topping plant The latter company, also a Texas corporation, is, like 1The findings of fact in this section ai e based principally on testimony given in Matter of The Clvmore Company, Inc, Case No l6-R-985, 58 N L R B 227, extracts of which testimony were, by stipulation , incorported into the record in this case Counsel foi the respondent stated that the facts at the time of the hearing in this case were the same as at the time of the hearing in Case 16-R-985 as respects commerce 2 A topping plant differs from a refinery in that the formei does not use a catalytic piocess for cracking oil , but merely tops the crude oil., 30 DECISWNS OF NATIONAl, LABOR RELATION'S BOAR]) the respondent, owned by Garland Clymore, who is president of both corporations. While the Refugio Refinery Company is a separate corporation, it has the same board of directors and general management as the respondent; the pay rolls of the two corporations are consolidated; and there is some interchange of equipment and a small interchange of products Ralph Wyrick, the vice president and general man- ager, is in charge of both corporations. Pay-roll checks for both corporations are made up in San Antonio, and are sent to the Refugio Refinery Company office and from there are distributed to the respondent's plants Tenders,' required by the Rail- road Commission in Texas, are made out by an employee of the Refugio Refinery for both corporations One tender is made large enough to cover production of-both corporations. Crude oil and natural gas for use in the afore-mentioned three plants are pur- chased and transported to the plants entirely within the State of Texas. During the year ending July 1, 1944, the respondent purchased equipment and lead valued at $1.10,000, of which about 10 percent was shipped from points outside the State of Texas During the same period the respondent processed at is Refugio and Pettus plants products of a value in excess of $800,000. During that period 2 percent of the respondent's refined products was sold and delivered to the United States Navy. This was the only sale ever made directly to a point outside the State of Texas.' Both the respondent and the Refugio Refinery Company sell to the Pontiac Refining Com- pany (an unrelated corporation), of Corpus Christi, Texas, a base for aviation gaso- line. Forty percent of the gasoline produced by the respondent at Refugio was sold to the Pontiac Refining Company during the year preceding July 1, 1944. The latter company manufactures therefrom aviation gasoline, and 70 percent of its products is sold to the United States Navy Upon the foregoing facts and upon the entire record, the undersigned finds that the respondent's activities, including the activities of its Pettus plant, affect com- merce within the meaning of the Act e II. THE ORGANIZATION INVOLVED Oil Workers International Union, affiliated with the Congress of Industrial Or- ganizations , is a labor organization admitting to membership employees of the re- spondent. III. THE UNFAIR LABOR PRACTICES A. Organization of the Union In early June 1944, employees Elbert Lane, Joe Sykes, and Luther Cline became interested in organizing a union at the respondent's Pettus plant, hereafter referred to as the plant. They enlisted the aid of one Charley Pool, a friend of Sykes and a member of the Union at another plant. On Sunday, June 11, 1944, Pool, Sykes, and Lane proceeded to the plant where some of the employees were working. They gathered a group of the employees in an instrument house, discussed organization, and all present then signed union cardse and paid their fees On Saturday, June 17, at about 4 p m , Pool drove to the plant with William J. Trombley, International Representative of the Union. While Trombley remained in the car, Cline accompanied S A tender is proof of the legal origin of oil required as a prerequisite to movement of the oil. 4 All crude oil purchased is transported to the respondent's plants by intrastate pipe line and tank truck transport . All refined products are moved from the plants by truck or tank cars 5 See Consolidated Edison Company of New York v N L. R B, 305 U S 197, N L R B. v Richter's Bakery, 140 F. (2d) 870 (C C A 5), cert denied 322 U S 754; Spandsco Oil & Royalty Co, 42 N L R B. 942 Because June 11 was Sunday, they dated their cards June 12. THE CLYMORE COMPANY, INC. 731 Pool and introduced him to employee Rudolph Knocke. Pool told Knocke there would be a meeting that evening after work at the drug store in Pettus. C. P. "Bill" Russell, formerly the superintendent of a plant the respondent had operated at Clark- wood, Texas,' and then in charge of construction work at the Pettus plant, passed Pool and Cline as they approached Knocke, entered the employment house, and later came out accompanied by Irving Hausmann, the plant superintendent 8 That evening after work a group of the employees met in the drug store in Pettus,' where Trombley informed them that he was going to write to the respondent con- cerning bargaining rights. Leaving the drug store, they gathered at Tronibley's car, where Trombley gave them the constitution, explained activities of the Union to them, and suggested that they elect a secretary They thereupon elected Sykes as their secretary. After the meeting, Sykes, Knocke, and Aguire went to the house of employee Jesus Moreno. There, Aguire and Moreno signed cards for the Union. Under date of June 20, Trombley wrote to the respondent in care of Wyrick request- ing recognition of the Union as the exclusive representative of the non-supervisory employees at Pettus. At the bottom of the letter were listed the names of persons to whom copies were sent. In this list appeared the name of employee Joe Sykes. The respondent received this letter on June 2110 Under date of June 23,11 President Cly- more replied, refusing recognition on the ground of lack of knowledge of the wishes of the employees. B. The discharges-interference, restraint, and coercion Elbert J. Lane was employed by the respondent in September 1943, as a stillman at the respondent's Clarkwood, Texas, plant, under C. P. Russell, the superintendent there. In November 1943, just before the Clarkwood plant ceased operating, Lane was transferred to the Pettus plant. On June 21, 1944, Lane was on a shift working from 11 p.m. to 7 a.m, seven days a week. At that time Irving Hausmann, had been, and, so far as the employees knew, still was, superintendent at the plant On that day at about I p m. the respondent shut down operations at one of the two units of the plant preparatory to making repairs or improvements. Before it was possible to cut into the coils with a torch, it was necessary to let the system cool off and then run steam through the pipes to remove the oil fumes When Lane arrived for work on the night of June 21, the pumps had been shut off but the steam had not yet been started through the coils. Martin Hall,' the stillman going off duty at 11 p.m., told Lane there was nothing much to do. Lane walked around the plant until about 3 a.m. and then climbed into employee Harclerode's car and dozed. The only regular duty for him to perform while the plant was down was to gauge the tanks just before he went off duty at 7 a.m. Between 5 and 6 a.m. Russell came to the car s This plant had been shut down since December 1943 s As found hereinafter Russell was aware of the presence of Pool and Trombley and either knew or became aware of the purpose of their visit Y Present at this meeting were Trombley and employees Lane , Knocke, Sykes , Martin Hall, Fox, Harclerode and Antonio Aguire. 10 Vice-President Wyrick testified that, when this letter was received on June 21, he was out of town and that he did not see it until he returned on June 23 or 24 (revised on cross-examination to fit only June 22). He testified that he had at this time been at Clymore 's farm and that he had spent two nights there While the undersigned believes that Wyrick did drive from Refugio to Clymore's farm at about that time, because of his and other testimony which made the length of his stay there, as testified, improbable, the undersigned finds that Wyrick drove to the farm on June 21 and returned on June 22 and that he saw the letter or knew its contents before he left Refugio. 11 Wyrick testified that he delivered Trombley's letter to Clymore pnisoually the day after he returned from Clymore's farm 12 Hall had been trained by Lane as a Stillman. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and roused Lane, who got out of the car and conversed with Russell, Russell told Lane he was taking charge at Pettus that morning 13 Toss and the end of their con- versation Lane asked Russell what he thought about the Union and Russell replied that he did not expect to be working any union men on his job .14 After gauging the tanks that morning just before leaving at 7 a.m, Lane went home. At 8 a in Russell came to Lane's house and told him he was going to have to lay Lane off. When Lane asked hum why, Russell replied, as testified by Lane, "The only reason I can give you is that I caught you asleep this morning."" Antonio Aguire and Jesus Moreno are Mexicans who were employed to'do gen- eral labor about the plant. Superintendent Hausmann had in January 1944. delegated their supervision to Harley McDaniel, the plant mechanic for whom they worked unless someone else asked McDaniel for their services Moreno had worked at the plant for about 9 or 10 years, being employed there before the respondent bought the plant in May 1943. Aguire was employed by the respondent in. June 1943 On the morning of June 22, 1944, Aguire and Moreno arrived at the plant at about 7.30 o'clock, and they sat down to wait for 8 a m , their starting time Russell came up to them and told them he had noth.ng for them to do and that they could go to town 16 Before they left, Sykes noticed that they were not working and asked them what was wrong They told him that they had been discharged That same morning Lane returned to the plant with Cline to get a coat he had left there. While Lane was getting the coat, Cline, who was off dirty at the time, got into a conversation with Russell to see if he could talk Russell out of discharging Lane. After Cline had asked Russell if he was sure Lane had been asleep and re- ceived an affirmative reply, Cline asked Russell if he was sure he was not discharg- ing Lane because of the Union At first Russell made no reply, but when Cline per- sisted in his question, Russell said that he was not working a union man Cline then stated that he was a union man and asked if Russell wanted him to return to work that evening. Russell replied, according to Cline, "Well, you don't belong to no union, you just think you do You just signed a little piece of paper and give out some money" Then he told Cline to come back to work if he wanted to During this conversation Lane returned and Sykes, passing by, stopped to ask what was wrong with the two Mexicans and Russell said they were not worth a damn When 13Wyriek testified that it had been contemplated since the closing of the Claihoood plant that Russell would become the superintendent at Pettus as soon as the construction of a new unit was completed there; that the construction work had not been completed by June 15 but by June 20 it was sufficiently completed so that Russell , who had been in chaige of the construction work, would be able to take over; that on that day he had driven through Pettus on his way to Clsmoie's farm, and that lie had told Russell and Hausmann that Russell would lake over on that clay Because Wyrick admitted that this conversation might have been after June 20, because Russell is found to have announced on June 22 that he was taking over on that day and on all the evidence , the undei signed finds that Wyrrck put Russell in charge late on June-21 14 Tbis finding is based on Lane's credited testimony Russell did not testify, although lie attended part of the hearing and was apparently available 15A few days later Russell went to Lane's house and gave him two checks, one for his pa) and one for two weeks' advance pay The respondent adduced evidence that about this time it had distributed checks for vacation pay in lieu of vacations, but it did not offer any evidence that it had given one to Lane or that the extra check given to Lane was not regarded as an advance On all the evidence the undersigned finds that it was an advance 16 While Russell's words did not plainly indicate that be was discharging these two men, the respondent's answer , as well as the events following the related incident, leave no doubt that, the respondent intended to discharge these two employees 11 E Roach, a witness for the respond- ent, testified that on several occasions he had seen Agu:re and Aloreno "in the shade of the tanks" when they "were supposed to be cutting weeds T Inesunie or woi king on the yards" AlcD.unel, called by the Roaid, testified that he had found the tiw,k of Aguire and Moreno satisf,ictoiy, that lie had nesci reprimanded them, and that lie had vevci licaid any complaints about them CLYMORE COMPANY, INC. 733 Sykes asked Russell if he were not making a mistake, Russell replied that he had not made one yet Sykes then pulled from his pocket the folded copy of Trombley's letter to the respondent which lie had received and asked Russell if he had seen it. Before Sykes was able to unfold the letter, Russell replied that he did not know anything about it Sykes then left to go about his duties In the course of the conver- sation Russell remarked, according to Cline, "If I'd a hadda lick of sense last Saturday I wouldn't-a let those two fellers out of here without giving them a piece of my mind," referring to Trombley and Pool Russell also said, as quoted by Lane and Cline, "This job might go union, but any time it does, little Willie will go down the road " Russell told Cline he would give Lane a recommendation and agreed with Cline that Lane had picked up the work as quick as any one he had ever broken in on the job, but he refused to change his mind about discharging him As Cline and Lane were preparing to leave Russell added, "Boys you're both young and you got lots to learn especially about this union "t" On the afternoon of June 22, the day of the foregoing discharges, when Hall ar- rived for his shift as stillnlan, Russell met him and asked him if he would take a 12-hour shift from 7 p in to 7 a in instead of his regular shift of 3 p in to 11 p in telling him that there was not much to do with the exception of checking the steam which had been started through the coils and that it would he all right for him to take a little nap during the night as long as the still was not in operation. In the course of a conversation that lasted about 15 minutes, Russell remarked, according to Hall's credited testimony, that he knew how to pick men who would be allright and added that he felt that the employees had been talked into joining the Union and that they did not know much about it That evening, Russell, in another conversation with Hall said, as quoted by Hall, "As for your leader he'll be in the armed services before he knows what it's all about " Hall understood him to be referring to Sykes is Joe .Sykes was employed by the respondent at its Clarkwood plant in April 1943 as a manifest clerk. About December 1, 1943, when the respondent started to move the Clarkwood plant to Pettus, Sykes was transferred to the respondent's Refugio plant While at Refugio he was trailed as a chemist for laboratory work and about May 1, 1944, was transferred to Pettus under the supervision of Hausmann, who, in addition to being superintendent, was the Pettus plant chenust During the or- ganization period, Sykes, who was an active factor in the movement, mentioned to Hausmann that the employees had made application to the Union Hausmann said that he had never been a union man himself but that every man had his own rights and if he wanted to join a union it was all right with him On June 21, when Sykes received his copy of Trombley's letter to the respondent asking recognition of the Union, he showed it to Hausmann One June 23, 1944, between 11 30 a in and 12 noon, an employee of a pipe line company brought a sample of crude oil to Sykes and asked him to make a distilla- tion test The test was not finished until 7 minutes after 12 The customary lunch hour w,as 12 to 1, and Sykes then left and drove home to a neighboring town 2 or 3 miles distant for lunch, according to his usual routine- Returning to the plant at about 12.50 p in , he parked his car and was walking toward the laboratory when Russell met him and asked him if he were not a little late Sykes replied that, as l1 The facts found in this patag,aph are based on the undenied and credited testunouy of Lane Cline, and Sykes, portions having been taken front the testimony of each \o one of the three was present throughout the entree conversation, which, according to Cline lasted about half in hour is The respondent had, in the fall of 1943, asked for and been granted a deferment on Sykes On June 23, 1944, the iespondent wrote, as sequited by Draft Board titles, notifying the Draft Board that Sykes was no longer ill employee Sykes' dischai ge is drscus,ed in the next p.u agi aph of the text 734 11RCiSIONS OF NATIONAL LAE:OR kl?I.ev'flt^,1TS RC) vRi) he had left at-12:07 and as it was then 12:50, he was 17 minutes early. Russell then said "By God, we are not working by your damned watch" Russell then told him to get his belongings and to be certain not to come back. Sykes said he would get out but would try to get back 19 As they walked into the laboratory, Russell commented that he had thought Sykes was a friend of his Sykes stated that off the job he was, but that he felt the Union was "the cause of all this." Russell then said, "If you'll just meet me down town I'll show you what I think about this union business' About the tine Russell and Sykes had finished talking, employee Willie Hage- mann entered the laboratory Sykes showed Hagemann his watch, which indicated that it was then 12:55 p.m., and asked him to remember the time. Hagemann checked his watch and found that it showed the same time as Sykes' watch.' Wyrick testified that Russell had told him the reason he had discharged Sykes was because Sykes was continually late and because he had taken exception to his discharging Lane." Sykes testified that the only time he had been late returning from lunch was on the occasions when Head Chemist Hounsel had come to his home for lunch. The undersigned finds that Sykes was but infrequently late ieturning from lunch and that the reasons given by the respondent were not the real reasons for his discharge. Rudolph (Smokey) Knocke was employed by the respondent on December 5, 1943. He did construction work until the end of March 1944, then was given a job as blender, leading aviation gasoline (work in which he had had previous epxerience) under supervision of both Superintendent Hausmann and Russell . He joined the Union and was one of the employees at the drug store meeting on June 17, having been invited that afternoon at the plant by Pool. The undersigned finds that Russell was aware of Pool's meeting with Knocke at the plant that day One June 23, the day of Sykes discharge, as Knocke was leaving after work that evening, Russell came to him and told him he was going to have to lay him off. Knocke said he thought that was a dirty deal just as he was beginning to make more money. Russell replied that he could not help it, that it was orders from higher up, and he promised Knocke a recommendation and two weeks' advance pay, stating that Knocke had made him a good hand. Wyrick testified that Russell told him he had discharged Knocke because Knocke was short in his supply of lead and because of blending irregularities. On cross-examination Knocke denied that he had on occa- sions put too much lead in the gasoline and come out short in his lead supply. He testified that on only one occasion had his scales been out of balance, that he had discovered this before he started blending in making his customary check of his scales, and that he had called Russell in at that time, as he was supposed to do, to 19 On cross-examination Sykes phrased his statement that he would put it on Russell' s sore back every way he could to get back. 20 The findings in the foregoing paragraph , including the quotations of Russell' s statements, are based on the credited testimony of Sykes. As previously stated, Russell did not testify 21 Hagemann's watch had been on time according to a radio announcement that morning. 22 Roach, for the respondent , testified that Sykes frequently went into Pettus for coffee or a "coke" during working hours and that he was away from the plant longer than was apparently necessary when going out to make charcoal tests in the field for the respondent's head chemist The undersigned considers this testimony of little importance as establishing the reason for Syke's discharge, since it was not used by Russell. Furthermore, the undersigned finds that it was a practice indulged in by a numbei of employees to iun into town for coffee during working hours, that Russell did it himself , sometimes accompanied by Sykes, and there was no evidence that either Russell or anyone else had criticized Sykes for it The evidence did not establish that Sykes took more time than was necessary when making tests in the field Sykes received with this pay check a check for two weeks in advance and latei received a check for pay in lieu of vacation THE CLYMORE COMPANY, INC. 735 readjust the scales He further testified that his supply was neither over nor under at the time of his discharge and that he had never been told his supply was out of balance. The undersigned credits Knocke's testimony On the morning of June 25 or 26, McDaniel drove in to Pettus with Russell to have a cup of coffee On the way back McDaniel, who was not a member of the Union, asked Russell what he thought about the Union and the discharge of the employees and the outcome of it. Russell replied, according to McDaniel's credited testimony, "Well, I don't know . but I'd-a fired every one of them devils if they hadn't stopped me."' On June 22, John W. Brundrette applied to Russell for employment, and was told by the latter that he expected to hire some men about the first of July. On July 25. Brundrette returned to see Russell. At this time Russell asked Brundrette if he were a member of the Union. On receiving a negative answer, Russell asked if Brundrette was figuring on joining the Union. Brundrette replied that he was not, and Russell then said, "Well, this is not a union job." He then hired Brundrette2' B. Concluding findings There is ample evidence that the respondent knew of the organizational activity of the Union. Sykes informed Hausmann, while the latter was still superintendent, that the employees had made application to the Union. On June 17, Russell was aware of the visit of Trombley and Pool and, according to his statements in his conversation with Lane, Sykes, and Cline, following Lane's discharge, Russell knew that Trombley and Pool were acting on behalf of the Union. When Sykes started to show Russell his copy of Trombley's letter and asked him if he had seen it, Russell, it will be remembered, denied having seen it before Sykes could open it. The prema- turity of Russell's denial presents a contradiction, for he must have known what Sykes was going to show him in order to deny knowledge of it. On June 21, Sykes had shown Hausmann a copy of this letter. Wyrick, on his way to Clymore's farm on the afternoon or evening of June 21, stopped at Pettus and put Russell, who was outspokenly opposed to the Union, in charge of the plant. On his first morning as the superintendent, Russell discharged three union members, and on the fbllowing day he discharged two more before Wyrick, who had meanwhile talked with Clymore and delivered Trombley's letter to Clymore, told Russell not to discharge any more Lane was discharged for the alleged reason that he was sleeping while on duty While the evidence established that Lane was in fact asleep, the undersigned finds that this was not the real reason for his discharge. Russell'showed no concern when he discovered Lane asleep, did not reprove him, and indicated to Hall the same day that, when the plant was not in operation, he did not object to the stillman's taking a nap. When Cline pressed Russell for an answer to his question of whether Lane e{ Wyrick delivered Trombley's letter to Clymore in person on June 23, as the undersigned has heretofore found. That evening Wyrick telephoned Russell and told him not to discharge any more employees While Wyrick testified that he deliveied the letter to Clymore after this conversation with Russell, the undersigned has found such sequence to be inconsistent with the other facts. 24 This incident was not specifically referred to in the complaint, but was argued by Board's counsel to constitute a violation of Section 8 (1) of the Act. Although the complaint alleges that the respondent interrogated "it's employees" concerning their Union affiliations, arid although Brundrette was only a prospective employee at the time he was questioned , the undersigned regards the variance as immaterial and regards it as cured by the motion to conform made at the close of the case. Evidence was given of alleged 8 (1) st.ttenieuts by Cecil Dodds, an eviployce of Refugio Refinciy Co., and by H E Roach of the Pettus plant The undersigned has considered all the evidence and finds that Dodds and Roach ai a clerical employees, for whose expi essions of opinions there was no adequate evidence to prove that they spoke as agents of the respondent 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had not been discharged because of the Union, Russell answered that lie was not working a union man These facts together with Russell's statements of hostility to the Union, the entuc sequence of events, and all the evidence convince the under- signed that Russell knew that Lane was a union advocate, and that the real reason for Lane's discharge was his union membership and activity The weakness of the reasons given by Russell for the discharge of Sykes and Knocke serves to strengthen the undersigned's conclusion that their membership in the Union was the respondent' s real reason for discharging them At the time of Sykes' discharge Russell gave only one reason-that Sykes was late returning from Lunch Not only was this picayune but it was also false ' The other faults which the respondent ought to attribute to Sykes appear not merely afterthoughts but also as poor reasons for discharge. If Sykes went to town occasionally for coffee, so did other employees, among them Roach, McDaniel, and P. 0 Angell. There was no evidence that any of them was discharged or even told not to do this On the con- trary, a few days after Sykes' discharge, Russell joined McDaniel in a sojourn to Pettus for a cup of coffee during working hours, tacitly indicating hys approval of the practice. Likewise do the reasons suggested" for Knocke's discharge appear to he the result of afterthought, as Russell gave no reason to Knocke at the time of his discharge except that it was orders from higher up. Knocke's association with Pool was known to Russell, and even if Russell had not seen Trombley's letter to the respondent which indicated that Sykes was a prominent union figure Russell could easily have gathered that Sykes was interested in the Union when the latter questioned the propriety of the discharges. The undersigned is convinced, however, that \W/yrick had received or been informed of Trombley's letter and had told Russell about it before Sykes' discharge The sudden decision to appoint Russell as super- intendent, without giving Hausmann advance notice,'' and Russell's prompt series of discharges of union members would he otherwise too incredible a coincidence The suggestion by the respondent that Sykes' questioning of Russell concerning the discharge of Lane. Aguire, and Moreno was regarded by Russell as a form of in- subordination repels belief in view of the fact that Cline, who questioned Russell's motives more bluntly than Sykes did, was not discharged" Unless Aguire was seen by Russell or an informer at the Union's meeting outside the drug store in Pettus, there is less in the record to indicate the respondent's knowledge or suspicion of union membership of Aguire and Moreno than of the others. A combination of facts, however, convinces the undersigned that Aguire and Moreno, too, were discharged because of ,their union membership In the first place their discharge came as part of a series obviously designed to insure the failure of the Union to secure or maintain its majority In the second place their discharge followed immediately the change of superintendents If this change had been con- 'G From Russell's remark to Hall on June 22 that "3 our leader he'll he vi the . u med services before he knows what it is all about," it would appear that Russell at that time untended to get rid of Sykes The iespondent had knowledge of Sykes' intelcst ill the Union fionn the fact that Sykes' name was included on Tiombley's Ietter .as a iecgnent of a cops as well is from Sykes' open remarks to Hausmann -"Aside from Clymoie's tcstnioni of whit Russell gave hun as the icason fun Knocke's discharge and the questions .asked huocke on ciom-cxamuna tion no illempt was nnade to prove any blending irregularities on Knocke's pact 27 wytick testified that he had had an outlet standing with Russell hunt Decentbei 1943 that he would be placed in charge of the Pettus plant when it a,is completed, but that lie had not notified Hausmann of this 2sThe undersigned finds no obstacle to the conclusions reached ftoni the f.iet tli.it Cline was not dischaigod By announcing his union membeiship to Russell iud tskiig if lie should tetttrn to work, Cline vitually challenged Russell to a showdown It was not necessai foi the iespoudent to discli.ngo all union menibets to accomplish its puipose. THE CLYMORE COMPANY, INC. 737 templated before, it is noteworthy that Russell was strongly opposed to the Union, whereas Hausmann was apparently neutral,"D that Russell's appointment not only did not come at the first of a month, as would normally be expected, but did not even come at the beginning of a week (June 21 was a Wednesday) ; that Hausmann was not notified of the change until the day it took place, and that Russell's ap- pointment came the same day as the day Trombley's letter reached Refugio. All of this compels the conclusion that Russell was appointed at that particular time for the purpose of combatting the Union Among his first official acts was the dis- charge of Aguire and of Moreno, starting a series of five quick discharges 30 The timing of the discharge of Aguire and Moreno, among others, is too significant to ignore. They were discharged in haste with no previous warning and with no com- plaint having been made to McDaniel and at a time when they were not on duty and were not criticized for any fault 31 There was no convincing evidence that they we;-e poor workmen, but, if they had faults, the undersigned finds that they were not dis- charged because of them. In view of the foregoing, of the small number of employees in the plant (18 to 21 on all shifts as of June 21), of their unconcealed organizational activity, of the small- ness of the community, and all the evidence in the case, the undersigned finds that the respondent either knew or suspected that Aguire and Morneo were members of the Union. The undersigned finds that the respondent discharged and refused to reinstate Lane, Aguire, Moreno, Sykes, and Knocke because of their union membership and activity and thereby discriminated in regard to their hire and tenure of employment By such discrimination as well as by Russell's disparagement of the Union and its members, and by Russell's questioning of an applicant for employment the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the respondent set forth in Section III, above, occurring in con- nection with the operations described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act - Since it has been found that the discharge of Lane, Aguire, and Moreno on June 22, 1944, and of Sykes and Knocke on June 23, 1944, and the refusal thereafter to reinstate them were unfair labor practices, it will be recommended that the respond- ent offer them immediate and full reinstatement to their former or substantially equivalent positions,3- without prejudice to their seniority or other rights and J0 Not only was Hausmann', ocuttality evidenced by his quoted statement, but Sykes testified that Hausmann "seemed to be moi c or less on ovi side " 30 The Union, at an election thei e.iftei conducted by the Buai d, lost by a vote of 11 to 7. 3 additional ballots having been challenged by the Union ii Russell apparently included Agune and loien,, in his answer to Slcl).uuel s inquuy is hen he" said that lie would have discharged "Al those devils" if they had not stopptii hini 32 It appears from Wyrick's testimony that the work for niei ly done Its both Sykes and Ivtockc is now being performed by one man The evidence did not establish however, iihethet this was .i change made in the uttcieats of economy ,r whethei it was made because of the difficulty of i io- cui ing help DL+'CSSIONS OF NATIONAL LABOR RELATIONS BOARD 2 privileges, and make them whole for any loss they may have suffered by reason of the respondent's discrimination against them by payment to each of them of a suns of money equal to the amount he normally would have earned as wages from the dates of his discharge to the date of the respondent' s offer of reinstatement, less his net earnings" during such period. 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, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Elbert Lane, Antonio Aguire, Jesus Moreno, Joe Sykes, and Rudolph Knocke, the re- spondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8 (3) of the Act. 3 By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engag- ing in unfair labor practices affecting commerce within the meaning of Section 8 (1) of the Act 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the under- signed -recommends that the respondent, The Clymore Company, Inc., its officers, agents, successors, and assigns shall 1. Cease and desist from. - (a) Discharging, refusing to reinstate, or in any other manner discriminating in regard to the hire and tenure of employment of its employees because they engaged in concerted activities or other mutual aid or protection thereby discouraging member- ship in a labor organization, (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form labor organizations, to join or assist Oil Workers International Union, affiliated with the Congress of Industrial Organizations, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act 2. Take the following affirmative action, which the undersigned finds will effectuate the policies of the Act : (a) Offer to Elbert Lane, Antonio Aguire, Jesus Moreno, Joe Sykes, and Rudolph Knocke each immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges; 33 By "net earnings" is meant eainings less expenses , such as for transportation, loom, and hoard, incurred by an employee in connection with obtaining work and working elsewhere than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Com- pany and United Brotherhood of Carpenters and Jo,neis of America, Local 2590, 8 N L R. B. 440 Monies received foi work performed upon Federal, State, county, municipal , or other work-relief projects shall he considered as earnings. See Republic Steel Corporation v. N. L. R B , 311 U S. 7 As mentioned above, some of the discharged employees received two-weeks' severance pay frail the respondent. This should he taken into account in determining their net loss. `fIIF ('L' \1(M1 CU\l1'AN), INC. (b) Make whole said Lane, Aguire, Moreno, Sykes, and Knocke for any loss they may have suffered by reason of the respondent's discrimination against them in the manner set forth in the Section entitled "The remedy" above, less their respective net earnings84 during said period ; (c) Post immediately in conspicuous places in its plant and maintain for a period of sixty (60) consecutive days, notices to its employees stating : (1) that the respond- ent will not engage in the conduct from which it is recommended that it cease and de- sist in paragraph 1 (a) and (b) hereof ; (2) that the respondent will take the affirma- tive action set forth in paragraphs 2 (a) and (b) hereof, and (3) that the respondent's employees are free to become or remain members of Oil Workers International Union, affiliated with the Congress of Industrial Organizations, or any other labor organiza- tion, and that the respondent will not discriminate against any employee because of membership in or activity on behalf of that or any other labor organization; (d) Notify the Regional Director for the Sixteenth Region (Fort Worth, Texas) in writing within ten (10) days from the date of the receipt of this Intermediate Report what steps the respondent has taken to comply herewith. It is further recommended that unless on or before ten (10) days from the date of the receipt of this Intermediate Report, the respondent notifies said Regional Di- rector in writing that it will comply with the foregoing recommendations, the Na- tional Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the Na- tional Labor Relations Board, Series 3, as amended, effective November 26, 1943, any party or counsel for the Board may within fifteen (15) days from the date of entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington, D. C., an original and four copies of a statement in writing setting forth the exceptions to such Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as lie relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case,to the Board Dated December 28, 1944. JAMES R FTEMINGWAY Trial Examiner 34 See footnote 33, supra