The Pure Oil Co.

In the Matter Of TTIE PURE OIL COMPANY and OIL WORKERS IN- TERNATIONAL UNION LOCAL 459, CIO In the Matter of TILE PURE OIL COMPANY and OIL WORKERS IN- TERNATIONAL UNION LOCAL 459, CIO Cases Nos. 16-C-1058 and 16-R-1443, respectively.Decided March 31,1947 Mr. Earl Saunders , for the Board. Mr. Gordon L. Wynne, of Wills Point, Tex., Mr. Harris W. Van Zandt, of Fort Worth, Tex., and Vinson, Elkins, Weems, and Francis, by Mr. C. E. Bryson, of Houston , Tex., for the respondent. Messrs. 1F. F. Noell and W. R. Paara, of Dallas, Tex ., for the Union. Mr. Ben Law , of counsel to the Board. DECISION AND ORDER On September 4, 1946, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceedings, finding that the respondent had engaged in and was engaging in certain un- fair labor practices and recommending that it cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found in his Intermediate Report that the respondent interfered with an election conducted among its employees by the Board on August 30, 1945, to determine representatives for the purpose of collective bargaining, and recommended that the election be set aside.' There- after the respondent filed exceptions to the Intermediate Report and supporting brief. The Board- lifts reviewed the Trial Examiner's rulings made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the respondent's brief and exceptions, and the entire ' The Trial Examiner also found in his Intermediate Report that the respondent did not discriminate, within the meaning of the Act, in regard to the hire and tenure of employ- ment of William E Nored and C D Barnhart, as alleged in the complaint, and recom- mended that the allegations of the complaint with respect to them be dismissed No ex- ceptions were filed to these findings and recommendations of the Trial Examiner In view thereof, we adopt them heimn 73N L R.B,No.1. 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the exceptions, addi- tions, and modifications hereinafter set forth. 1. The Trial Examiner found that the respondent (a) urged its employees to vote against the Union in the election of August 30, 1945; (b) "held out hope of reward" to those employees who opposed the Union; (c) vilified and disparaged the Union; and (d) interro- gated its employees concerning their union membership or sympathy? We agree with these findings. In addition, we find that the respond- ent interrogated applicants for employment concerning their union sympathies and threatened reprisals against adherents of the Union.3 By the totality of its conduct, as summarized above, we find that the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, thereby violating Section 8 (1) of the Act. 2. The Trial Examiner also found that the respondent interfered with the conduct of the election of August 30, 1945, by urging its em- ployees to vote against the Union, by "holding out hope of reward" to those who opposed the Union, and by vilifying and disparaging the Union.' We agree with these findings. In addition, we find that the respondent interfered with the election by Assistant Superintend- ent Prather's threat of reprisal against adherents of the Union shortly before the election and by Superintendent W. H. Seyffert's questioning 2 The Trial Examiner's finding as to the respondent s interrogation of its employees con- cerning their union membership or sympathy is based in part upon testimony of employees Neil Morris and Sid Dalton, which he credited, that, on the day before the election, Super- intendent W H Sevffert questioned them as to how they intended to vote We also credit Morris and Dalton in this respect, although we do not share the Trial Examiner's view that Seyffert's version of the interrogation, namely, that he did no more than ask Mon i is and Dalton n hether they intended to vote and urge them to do so, is ' inherently" incredible The Trial Examiner also found in his Intermediate Report that the respondent trans- ferred employee James Turner so that it might benefit from his hostility to the Union and directed Production Foieman William E Nored to cooperate with employee Hugh Teague in opposing the Union, thereby violating Section 8 (1) of the Act we do not deem it necessary to pass upon these findings of the Trial Examiner as to Turner and Nored , nor do we rely upon them in any way for our other findings herein The Turner incident was iso- lated and remote in time The fact that we do not rely upon the Turner and Nored incidents does not affect our agreement with the Trial Examiner that the respondent's conduct indi- cates it danger that other unfair labor practices by it are to be anticipated and that, in order to satisfy the remedial objectives of the Act, the respondent should be ordered to cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act 3 Our findings above as to interrogation of applicants for employment is based on the credible testimony by employees S. 0 Prater, Maldieus R Parks, and Dale Ragain, as more fully set forth in the Intermediate Report, that they were hired by the respondent after being questioned as to their affiliation with or opinion of unions by Assistant Superintendent John Prather, in the case of Prafer and Parks, and Superintendent W. H. Seyffert, in the case of Ragain. Our findings as to the threat of reprisals is based upon further credible testimony of Prater set forth in the Intermediate Report, that, shortly before the election, Assistant Superintendent Prather denounced to him an alleged rumor that the Union could hold a man's job, asserted that after the election some of the men would be "damned sorry," and advised that, as long as Prater, who was not then a member of the Union, "stood like [lie] was," his job would be secure. THE PURE OIL COMPANY 3 of employees Neil Morris and Sid Dalton on the day before the elec- tion as to how they intended to vote. On the basis of the foregoing, we find that the conduct of the respondent deprived the employees of that freedom of choice contemplated by the Act.' We therefore sustain the Objections of the Union to the election and, based thereon, we shall set aside and vacate the election. However, in view of the length of time which has elapsed since the election, we shall dismiss the Union's petition for investigation and certification of representa- tives, without prejudice to the filing of a new petition by the Union, if it so desires. 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 Pure Oil Company, Van, Texas, and its officers, agents, successors, and assigns shall : 1. Ceast and desist from : (a) Promising favored treatment to its employees as a reward for opposing union organization; (b) Interrogating its employees and applicants for employment concerning their union membership or sympathy; (c) Threatening employees with reprisals as a penalty for the exercise of the right to self-organization; (d) 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, Local 459, 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 protec- tion, 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) Post immediately at its operations in or near Van, Texas, in the 4 Employees testified that they were not influenced by the respondent's anti-union state- ments and that they did not intorm other emplo3 ees of such statements until after the election We note, as did the Trial Examiner, that, even if all such testimony is credited, it falls shoat of proving, on the facts of this case, that the respondent's interference did not affect the results of the election We do not, however; consider, and the coup is have agreed, that an examination of the subjective state of mind of employees, exposed both be- fore and after an election to employer conduct of a kind which tends to coeice emplojees in the exercise of the right to make a free choice of representatives, provided a proper test of the fairness of an election See N L R B v. Brezncr Tanning Co, 141 F. (2d) 62, 64 (C. C. A 1) , N. L. R. B v. John I','ngclhoih cC Sons, 134 F. (2d) 553, 557 (C C. A 3) , N. L. R B v. Aintree Cotp, 132 F. (2d) 469, 472 (C. C A 7), cert den. 318 U. S 774, N. L. R B v. Illinois 7'001 Works, 153 F (2d) 811, 814 (C C A 7) ; Elastic Stop Nut Corp v. N L. R. B., 142 F. (2d) 371 (C C A 8), cert den 323 U. S 722, N L. R B. By Crown ,Can Co, 138 F. (2d) 263 (C C A 8), cert den 321 IT S 769. American National Bank of .St. Pauly N. L R B, 144 F (2d) 268, 271 (C. C A. 8) 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carroll District , and the Van Joint Account , copies of the notice at- tached to the Intermediate Report herein, marked "Appendix A." s 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 re- ceipt thereof and maintained by it for sixty (60 ) consecutive days. thereafter in conspicuous places . including all places where notices to employees customarily are posted. 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 writ- ing, within ten (10 ) days from the date of this Order, -what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the election of August 30, 1945, among employees of The Pure Oil Company at Van, Texas , be, and it hereby is, vacated and set aside; that the Union 's petition for inves- tigation and certification of representatives be, and it hereby is, dis- missed, without prejudice ; and that the complaint, insofar as it alleges. that the respondent discriminated in regard to the hire and tenure of employment of William D . Nored and C. D Barnhart , within the meaning of the Act, be , and it hereby is, dismissed. INTERMEDIATE REPORT Earl Saunders, Esq., for the Board Gordon L. Wynne, Esq., of Wills Point , Tex, Harris W. Van, Zandt, Esq., of Fort Worth , Tex., and Vinson, Elkins. Weenis and Flan(As. by 0 . E Bryson, Esq, of Houston, Tex., for the respondent Mcssrs IV F. Noell and TV. R Paara , of Dallas, Tex, for the Union STATEMENT OF THE CASE On August 17, 1945, Oil Workers International Union, Local 459, herein called the Union, filed with the Regional Director for the Sixteenth Region (Fort Worth, Texas), of the National Labor Relations Board, herein called the Board, a petition in Case No 1G-R-1443 alleging that a question affecting commerce had arisen concerning the representation of employees of The Pure Oil Company, herein called the respondent, at its operation near Van, Texas, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Pur- suant to a stipulation for certification upon consent election, an election by secret ballot among the respondent's production and maintenance employees was conducted by agents of the Board on August 30, 1945. A majority of the 6 Said notice, however, shall he, and it heiebv is, amended hr striking from the first para- graph thereof the words "RECOMMENDATIONS OF A TRIAL EXAMINER" and substi- tuting in lieu thereof the words "A DECISION AND ORDER." Iii- the event that this order is enforced by conit decree, these shall also be inserted, before the words "A DECI- SION AND ORDER," the woi ds . "A Decree of the United States Circuit Court of Appeals Enforcing " THE PURE OIL COMPANY 5 employees who participated iii the election voted against the Union.' There- after, on September 4, 1945, the Union filed objections to the election and re- quested that the result be set aside because of alleged interference on the part of the respondent Pursuant to Article III, Section 10 of the Board's Rules and Regulations, the Regional Director on December 5, 1945, issued his report on objections in which he found that they raised substantial and material issues. with respect to the conduct and result of the election and recommended that the election be set aside and a new election be directed. On December 10; 1945, the respondent filed exceptions to the Regional Director's report. It ap- pearing to the Board upon consideration of the report on objections and the exceptions thereto, that substantial and material issues with respect to the conduct of the election were raised and the Union having meanwhile filed chaiges of unfair labor practices against the respondent in Case No. 16-C-1258, the Board ordered a hearing on the objections with respect to the matter set foi th in Paragraph 1 of the Regional Director's report on objections and further ordered that Cases Nos 16-R-1443 and 16-C-1258 be consolidated for purposes of healing Thereafter, upon a second amended charge, dated May 20, 1940, the Board, by its Regional Director, issued its complaint dated May 29, 1946, against the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. Copies of the complaint and the second amended charge, accompanied by a notice of con- solidated hearing on the allegations of the complaint and the objections to the election, were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleges in substance, that the respondent- (1) since about July 1942, disparaged and expressed dis- approval of the Union, interrogated employees concerning union affiliation and activity : urged, persuaded, and warned employees to refrain from union mem- bership and activity, interfered in the election conducted among its employees on August 30, 1945; and (2) on June 6, 1945, discharged William E Nored because he refused to assist the respondent in the commission of unfair labor practices and on August 30, 1945, demoted C. D. Barnhart because of his membership in and activity on behalf of the Union ' The respondent's'answer, filed on or about June 8, 1040, achnits the allegations in the complaint with respect to the extent and character of the respondent's business, admits the discharge of William E Nored and the demotion of C. D Barnhart, but denies the commission of unfair labor in actices Pursuant to notice, a hearing was held in Tyler, Texas, from June iS to 20, 1946, before the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel, and the Union by its representatives Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence hearing on the issues was afforded all parties At the opening of the hearing, the respondent moved for a 60-day continuance in order that Hugh Teague, named in the complaint as an individual through whom the respondent had committed unfair labor ' The election results were. Valid votes counted -158 For the Union -59 Against the Union -89 Challenged -5 Over the respondent s objection , the undersigned granted a motion of Board 's counsel, made at the opening of the hearing, to amend paragraph 10 of the complaint to add the names of Thompson, Sallver, and Ragsdale as nrdn-irhaals through whom the respondent violated Section 8 (1) of the Act. 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practices, be available as a witness The motion was denied and, when renewed at the close of the hearing was again denied At the close of the Boa] d's case, the respondent moved to strike all testimony with respect to acts and state- ments of Hugh Teague, Robert Ragsdale, and Donald Burgess, on the ground that these individuals were neither agents nor supervisory employees of the respondent and that, therefore, their activities were not attributable to the respondent. The motion was denied by the undersigned The motion was renewed at the close of the hearing, with ruling thereon being reservd, and is disposed of in the body of this report. A motion by Board's counsel to conform the pleadings to the proof in formal matters was granted without objection None of the parties requested oral argument at the hearing and none was had. No request was made for permission to tile briefs with the undersigned and no briefs have been received. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, an Ohio Corporation with its principal office and place of business in Chicago, Illinois, is engaged in the Van Field, in and about Van, Texas, in producing, transporting, selling, and distributing petroleum and its related products. A substantial portion of the respondent's crude oil is trans- ported to its refineries in Ohio, Michigan, West Virginia, Texas, and Oklahoma, through its own pipe lines, and those of its subsidiaries, which consist of approxi- mately 1,000 miles of main and gathering lines and numerous pumping stations located in a number of states The products of these refineries are distributed in approximately 10 States Petroleum produced in the Van Field is trans- ported in the respondent's or its subsidiary pipe lines to the respondent's refineries and is commingled with other petroleum transported in the same lines, thereby losing its identity Appioxiinately 26,000 barrels of petroleum are transported daily from the Van Field, of which approximately 3,000 barrels are the property of the respondent, all of which is refined in one of the respondent's refineries. More than 75 percent of the finished products moves through States other than the State of Texas The respondent concedes the jurisdiction of the Board in the premises.' II. THE ORGANIZATION INVOLVED Oil Workers International Union, Local 459, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the respondent. Iii. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion ; the objections to the election 1. Preface The respondent's operations in and about Van, Texas, in the area commonly designated as the Van Field, are divided, for administrative and other purposes between the Van Joint Account, herein called the Account, and the Carroll District, herein called the District Although the respondent does not own all the oil s These findings are based upon a stipulation at the hearing and upon the respondent's zanswer. THE PURE OIL COMPANY 7 leases in the Account and the District, all the workers are its employees and the, management of the operations are the exclusive responsibility of the respondent. W H. Seyffert, superintendent of the District, has no lesser supervisors under his direction L L Haines, superintendent of the Account, is assisted in the management of the operations by John Prater, assistant superintendent, George C. Allen, warehouseman, and Otto Sallyer and Leslie W Thompson, production' foremen. General supervision over both the District and the Account resides in, Division Superintendent, Al. A Finney who maintains an office in Fort Worth,. Texas All the above named have genuine supervisory authority and may hire, and discharge production and maintenance workers or effectively recommend. such action. In directing an election among respondent's employees, the Board, on De- cember 26, 1943, found employees in both the Account and the District to con- stitute a single appropriate unit; over the objection of the Union, included gang- pushers in the unit as non-supervisory workers, and included rotary drillers as the Union and the respondent requested The Union was unsuccessful in the ensuing election and again sought designation in tho election of August 30, 1945, the result of which has already been stated The consent election was con- ducted in the unit including gang pushers and rotary drillers, which the Board earlier had found to be appropriate. Subsequent reference herein to an election will be to the one conducted on August 30, 1945 Although the Union objected to the election in several particulars, the Board directed a bearing only on the objection that: The Company through its supervisory personnel requested its employees to, vote for the company and against the Union. The complaint alleges, however, that the respondent, generally, interfered with the election and the undersigned will consider in this report the evidence rele- vant to that broader allegation. 2. The facts S. O. Prather, while seeking employment with respondent, it, March 1945, made his request of Assistant Superintendent John Prater who, after inquiring if- Prather was a "union man," observed that, "the Union [is not] any good and nothing but the damned trash [belong] to it." Upon Prater's advice, Prather se- cured an interview with Superintendent Haines and on March 13, 1945, was- hired Shortly before the election, in a conversation near the salt water dis- posal plant, Prater inquired of Prather, as the latter recounted it, "if I still stood on the sonic two feet that he hired me on. and I told him I did " Prater continued, "There is a iuhnor going around that the Union will hold a man's job, that is all * * * [obscenity omitted], and after the election some of them [will] be damned sorry," and assured Prather that, "as long as [he] stood like [he] was," his job would be secure. Prather was not a union member at the time of this last conversation but joined on August 30, election day On the day preceding the election, Superintendent Seyffert, of the District, asked Neil Morris, who-was at the time working as a roughneck on a drilling rig in 4 Matter of The Pure Oil Company, 46 N L R B 418 5 These findings are based upon the testimony of S 0 Prather, which the undersigned credits Prater's denials that he questioned Prather concerning the latter's disposition toward unions , that lie disparaged the usetulness of unions, or that he made invidious remarks about the Union's membership are not convincing while he admitted that he spoke to Prather at the salt water disposal plant, he explained that he was then investi- gating a rumor that Prather was a victim of discrimination Considering that Prater- could not recall the nature of the alleged discrimination and that his asserted inquiry, at- best, was casual , his explanation is not credited 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Account, it lie intended voting for the Union When Morris replied that he had not decided, Seyltert went on to say, "Well, we don't need a Union here, I don't think I don't think it would be best if we voted for it." On the same occasion, Seyffert spoke also to Sid Dalton, an employee working in the same crew, asked how Dalton intended to vote; and stated that, while unions were all right where they were needed, the respondent's employees had no need for a union.' Again, on the (lay preceding the election, N. E Hardwick, who only 4 days earlier had joined the Union, was accosted by Supeiintcadent Haines who asked Hardwick if he intended to vote. When Haidwick answered in the affirmative, Haines went on to say that he would appreciate what Hardwick "could do for the election." Holmes, in the words of Hardwick, then spoke of, "one man that lie had tried all over the field on jobs and couldn't find-any job that he could do, hold clown. Finally he put him on a job that he could do, and said that he went and joined the union and said, 'I don't know what we will do now ' " On the day of the election, in a conversation at the door of respondent's field office, John Prater said to Hardwick, "Now I aiu responsible for all you boys going back to woik * * * I want you to do all you can to help its • * * We want to beat hell out of these sons-of-bitches."' In July 1945, Maldeius It Parks on several occasions asked Superintendent Haines for employment and finally was referred to John Prater. At Prater's invitation. Packs rode with Prater in a car from the field office toward Van When they had gotten under way, Prater asked Parks his opinion of unions and Parks answered that he knew nothing about them but that he opposed strikes Prater then remarked, "that is all I want to know ; you are hired " Parks then re- turned to Haines' office: to Fl:unes' inquiry, "Well, how did you make out?" replied. "Okay, I guess," and in ii few days was put to work About 3 weeks prior to the election, while discussing the union and the election, Parks asked ]'rater, "if this is defeated * * * will us boys receive the benefits from it?" to which Prater replied, "that is right, you will " Two or 3 days prior to the election Parks asked it similar question of 1'i oduction Foreman Otto Sallyer who replied, "yes, there is going to be some changes made after the election You boys stay in there and pitch These findings are made upon the mutually corroborative and Partially undenied testi- mony of Morris and Dalton Seifiert admitted that the conversations occurred but ex- plained that lie mquu ed only if Morris and Dalton intended to vote and urged them to do so. He also testified that lie spoke to all eligible voters in the District and advised tlieni to cast ballots in the election Seyffert was unable to explain why lie selected Mortis and Dalton for special attention among those in the drilling crew or why they alone among the em- ployees in the Account were the recipients of his advice Seyffert's account of the con. versations is inherently incredible and the testimony of Moi rig and Dalton is believed ° The convincing and credited testimony of Hai dwick tornis the basis for these findings Although both Haines and Pratei denied making the remarks which Hardwick attributed to them, the undersigned finds that the conversations iiere,accurately reported in Haid- wick's testimony, tl Haines testified that although Parks appeared to be it desirable applicant, he wanted more information as to his character and, instructed Prater to conduct an investigation in that respect and when Prater reported favorably on Parks, the latter was hued Haines denied that lie sought of received any mfoiniation from Prater regarding Paiks' union sympathies Prater testified that lie made exhaustive ingmuv in Van concmnmig ]'arks and was unable to learn anything of loin He admitted that lie had a conversation with Parks in a car and explained that lie was taking 1'.riks to Van in a further attempt to learn more about hum During the drive, according to Prater, Parks mentioned that one, John Peden, would vouch lot him Ptatci, allegedI , then became convinced that further investigation was unnecessary and informed Haines that Parks would be an acceptable employee Prater denied that he made an niqui•v of Parks concei ning the Union and denied that lie sug- gested that those who opposed the Union in the election would be preferred by the re- spondent Prater, admittedly, did not ask Parks to supply references until they weie in THE PURE OIL COMPANY }) At the time when these conversations occurred Parks was not a member of the Union and appear:.,, not to have been in favor of such organizations He was demoted from his job as switcher the following February and joined the Union in March About May 21, 1946, in a discussion with Superintendent. Haines concerning a back injury which Parks had suffered, Haines remarked, "you've kinda changed your minds since I hired you? * * * You joined the Union and kneda let me down * * * I did you a couple of nice favors in regard tor that, and I'ni not at all satisfied about it."' James Turner, a native of Van, after working about 5 years for the respondent in Clay City, Illinois, was transferred in November 1942, to the Van Field During this interim. Turner frequently requested such a transter from respond- ent's officials both in Texas and Illinois in order to be with his father in Van In early 1942, Turner spoke of this desire to George C. Allen, respondent's ware- houseman in the Van Field Allen asked Turner if he knew that the respondent was having "union trouble" in Van and if Turner believed in unions . Turner replied that he had heard of the "union trouble" but that he (lid not believe in unions Allen observed that lie might help effect the transfer. About 6 months later, while still working in Clay City, Turner was informed by his foreman, Sexton Stevens, that he, Turnei, was being transferred to Van and that, "They are having union trouble down there and they want you to get clown there quick as you can " 't'urner reported for work in Van, joined the Union in May 1946, and was working in the Account at the time of the hearing i° Dale Ragain was hired by the respondent in late October 1945, and reported for work as a roustabout on November 1 Ragain at the time was not a member of the Union and did not later become one According to Ragain's credited and undisputed testimony, on the occasion when he was hired, Seyffert, in the presence of Haines, asked him to express his opinion of "unionized labor " Ragain answered that, while lie did not oppose unions, lie (lid not approve of the tactics employed by the Union in the Van Field. the car and appaiently made no check of the reference then allegedly given The under- signed finds Pratei 's testimony on this point to be implausible . Fuither, it is clear from the entire record that the respondent opposed the Union in the election and in numerous in- stances urged its employees to vote against it The undersigned finds Parks ' testimony, as set forth above, of the inducements offered by Prater and Sallyer to those who would aid in defeating the Union , to be credible and his account of the conversations herein detailed is accepted 0 These findings are based upon the testimony of Paiks who, as has been stated, was a credible witness Haines denied knowledge of Paiks' union membership and denied that Parks was hired only after ascertainment that lie would piobably oppose the Union Haines admitted that the conveisation with Paiks, detailed above, took place but denied that he had accused Parks of violating a trust or that there was any mention of the Union Ac- cording to Haines, it was Paiks who confessed that, "he had kind of let [Haines] down," and that when Parks made this remark, Haines replied that he did not care to discuss it and drove away Haines explained that he interpreted Parks' words as having refeience to the Union The undersigned finds that Haines knew that Parks was not a union adher- ent at the time lie was hired and that both he and Parks felt that there was an implicit agreement that he would not become one Only in this context, the undersigned finds, would Haines have interpieted Parks' expression as having reference to union membership 10 Allen denied any conversation with Turner concerning a transfer or concerning unions Stevens admitted that lie told Turner that the transfer was effective, denied that unions were mentioned between them, and asserted that lie was not advised concerning the reason foi the tiansfer Division Superintendent M A Finney testified that lie arranged Turner's transter because Turner's services were needed at Van and also in order to enable Turner to be with his ill father Finney denied that Turner's disposition toward unions was a consideration affecting the transfer Allen was an unconvincing witness professedly unable to recall conversations with Turner although able to remember other incidents no less remote In view of the respondents manifest hostility toward the Union, the denials of Stevens and Finney are not ciedited Turner was, howevei, a convincing witness and his account of the incidents , detailed above, is accepted. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Over the objections of the respondent, counsel for the Board was permitted to develop testimony concerning anti-union acts and statements of Hugh Teague, Robert Ragsdale, and Donald Burgess As has been stated, ruling upon respond- ent's motions to strike such testimony was reserved-by the undersigned. The record indicates that in the fall of 1942, Teague was working as a rous- tabout and that before the election of August 39, 1945, was promoted to rotary driller The evidence is overwhelming that Teague bitterly opposed the Union and solicited other employees to follow his example Certainly it was Teague's• privilege to do so as an employee eligible to participate in the election unless by virtue of his emplo} went or other status his attitude could reasonably be regarded by the employees as furthering the desires of the respondent and reflecting its wishes. The Board's counsel argues that as a rotary driller. Teague's statements carried with thein'the authority of the respondent The undersigned does not so find Rotary drillers, as an employment classification. expressly were included in The voting unit in both elections While they have authority to direct and lead the efforts of the 4 or 5 men in the drilling crew, they have no power to hire, dischaige, or effectively recommend such action Their status is comparable to• that of leadmen or working foremen The undersigned finds that rotary drillers are not supervisory employees within the Board's usual meaning of that term. Board's counsel argues further, however, that Teague was selected by manage- mbnt to spear-head a drive against the Union and was constituted an agent of the respondent for that purpose Evidence in support of this allegation is that in late 1942, when Teague was transferred to the crew of Production Foreman W. E Nored, Division Superintendent M A Franey stated, "I am sending you Hugh Teague * * x Monday morning to put to work over there as a roustabout, and whatever you might have for him * * * Hugh `L'eague will fight that union for you In fact, he will break it up if you will work with him." " It does not appear, however, that the union was enjoying any particular success among the members of Nored's crew so that it cannot be inferred that Teague was. assigned to combat the Union where it was best supported Neither does it appear that Nored heeded Finney's direction to work with Teag-ne against the Union or- that the employees ever learned of Finney's desire in that respect Teague was ill and unavailable to the respondent as a witness at the time of the hearing but, the undersigned finds, the respondent was not thereby prejudiced. Obviously,. Teague could not testify concerning the conversation between Finney and Nored and the undersigned will assume, for the purpose of the findings herein, that- Teague was not in any manner requested by the iespondent to oppose the Union.- The undersigned is convinced from all the testimony that Teague would have opposed the Union without encouragement from the respondent and without regard to the crew to which he may have been assigned The undersigned finds- that the employees did not reasonably evaluate Teague's expressions of union- hostility as being made by an agent of the respondent. Donald Burgess, a roustabout, and Robert Ragsdale. a gang pusher, were named in the complaint, as amended at the hearing, as individuals whose anti- union conduct was attributable to the respondent. Both worked in classifica- tions eligible to participate in the election sid. the undersigned finds, neither occupied a position having supervisory status Admittedly this was so in the case of Burgess for roustabouts were ordinary production and maintenance em- ployees Gang pushers appear to have been working foi emen with anthoi ity only to lead and assist workers on assignments given by the production fore- ' Nored's testimony as to this conversation is believed Finnev's denial of these remarks. Is unconvincing in view of the respondent's uniformly hostile attitude toward union organi- zation THE PURE OIL COMPANY 11 men and without power to hire, discharge, or effectively recommend such action. Burgess was, however, on friendly terms with Assistant Superintendent Prater and was frequently in the latter's company. Prater admitted that some em- ployees regarded Burgess as a "stool pigeon." On one occasion Burgess accom- panied Prater on a local expedition to recruit employees for temporary work in constructing a water line but it is clear that Burgess did no hiring or even recommended that any individual be hired Shortly before the election, Burgess and Prater drove to the house of an employee eligible to vote in the election, assertedly for the purpose of buying a watermelon Out of the hearing of Prater, Burgess urged the employee , C. E. FIamman, to oppose the union at the polls.12 Finally, in the spring of 1944, Burgess told Production Foreman Nored that he was assigned to Nored's crew, "to look and listen, and report what he seen or heard." n The undersigned finds that these incidents in their totality fall well short of proof that Burgess had been constituted as respondent's agent to oppose the Union or that the employees reasonably could have viewed Burgess' words and actions as having the support of the respondent. Robert Ragsdale, as has been found, was not a supervisory employee nor did employees in lower classi- fications so regard him.14 He denied that his opposition to the Union was en- couraged by the respondent and, the undersigned finds, the employees did not reasonably interpret his hostility toward the Union as reflecting the policy of the respondent. 3. Conclusions By urging its employees to vote against the Union, by holding out hope of ieward to those who opposed the Union," and by vilifying and disparaging the Union, the respondent intertered with the conduct of the election of August 30, 1945, so that the employees were not afforded that freedom of choice which the Act contemplates While some of the Board's witnesses testified that they were not influenced by the respondent's conduct," it is clear that the respondent hoped thereby to secure the Union's defeat and it is impossible to determine how many rotes were cast against the Union because of such interference" The result of the election indicates that there is a possibility, at least, that the interference was successful The undersigned finds that the result of the election did not reflect the free and untiainmeled choice of the employees and will recommend that it be set aside 12 Hamman 's uncontiadicted testimony concerning this incident is credited 13 Nored 's testimony concerning Burgess' remarks is ciedited , although John Singleton, who was present on that occasion , denied any iecollection of such a statement. Burgess did not testify. 14 Parks, in testifying to a promise of promotion allegedly made to him by Ragsdale as a reward for voting against the Union , admitted that he did not feel that Ragsdale was in a position to fulfill such a promise. "See Western Cartridge Co v. N L. R . B, 134 F. ( 2d) 240 (C C A. 7), where the Court said, "interference is no less interference because it is accomplished through allurements rather than coercion , when, as here, the system is employed to stein a tide of organization and is adopted as means of eliminating outside unions as collective bargaining agents of the company's employees." 10 Morris and Dalton so testified Howevei, Superintendent Scvffcrt admittedly talked to 25 other employees about the election just before it was held and his testimony that he merely urged them to vote and refrained fioii suggesting that they oppose the Union is not credited . In any event . such interfeience even though unsuccessful is in violation of the Act Rapid Roller Co v N L R. B, 126 F ( 2d) 452 , 457 (C C A 7) 17 Counsel for the Board was pei mitted to develop testimony relative to the admitted fact that the respondent supplied its employees with tiansportaion to the polls on the day of the election , a circumstance which was urged upon the Board by the Union as consti- tuting interference with the election Since the allegation in the complaint concerning Inteiference with the election is bioader in scope than the objection to the election upon which the Board directed a hearing , the undersigned believes that the litigation of this 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By the conduct detailed in the paragiaph above, by interrogating its employees concerning their union meinbeiship or svnrpiithy. by transferring James Turner so that it might benefit from his hostility toward the Union, and by directing Nored to cooperate with Teague in opposing the Union, the respondent inter- fered with, restrained, and coerced its employees in the exercise of their rights under Section 7 of the Act amid, the undersigned finds, thereby violated Section 8 (1) of the Act B. The alleged violations of Section 8 (3) William E Nored, after some intermittent service, was steadily employed by the respondent from 1930 to the date of his discharge on June 6, 1945. Starting in the lowest classification of employment, Nored achieved the position of production foreman and occupied that status on the date of his dismissal. As has been found, when Hugh Teague was transferred to Nored's crew in the fall of 1942, Finney said that Teague would help Nored fight the Union According to the credited testimony of Nored, in the spring of 1943, two employees objected to working longer with Teague and Nored relayed this complaint to Finney. Finney transferred Teague to another section of the field but told Nored that if he "had worked with him in it right, he [Teague] wouldn't have gotten in the trouble with the boys in the district." Donald Burgess replaced Teague and after working under Nored for about 1 year, stated, as has been found, that he had been sent to Nored's crew to "look and listen and report what he seen or heard " Nored reported this incident to Superintendent Patterson and in a Jew days Buigess was transferred. In the spring of 1944, according to his nneon tradicted and credible testimony, Nored was criticized by the then Division Superintendent, Schoonover, for promoting two men who were known to be union members. On at least two occasions Nored was accused by Finney of discriminating in work assignments between the two gang pushers under him. On both occasions, according to Nored, the gang pushers, Robert Ragsdale and John Singleton, denied that Nored had practiced favoritism. Both Ragsdale and Singleton testified that they had never been questioned about discrimination and in fact, no such favoritism had been shown by Nored As stated Nored was discharged June 6, 1945. Finney testified that he discharged Nored principally because he did not like him as a man or an employee. He asserted that Nored was not cooperative and failed to get along with the men uncles his supervision. Finney denied knowledge that Nored was favorable to the Union The theory of the Board's attorney is that Teague and Burgess were assigned to Nored's crew to break the Union and that when Nored failed to cooperate in this plan, he was discharged. The record does not appear to the undersigned to support that theory. Nored secured Teague's transfer in the spring of 1943, and Burgess' a year later but was not discharged for more than 14 months after the last transfer. Even assuming that Nored displeased Finney by failing actively to oppose the Union, it does not appear that such factors motivated his dischai ge The undersigned finds that the allegation in the complaint with respect to the discharge of Nored has not been sustained on all of the evidence and will recommend that it be dismissed. issue was proper It is clear, however, that the iespondent did no mote than make tians- portation available to all eligibles, that the emplo}ees were free to accept or ieject the offer, and that no supeivisor.N eniploices accompanied the woiheis Under these circuni- stances, in the absence of e%idence that the employees were "herded ' to the polls of that tiansportation was supplied to savored groups of individuals onh the iuideisigned finds no merit in the contention that the respondent's action in this respect interfered with thr election. 'THE PURE OIL COMPANY 13 C D. Barnhart has worked for the respondent for about 24 yews In late 1939 or early 1940, he was promoted to switcher and continued in that classifica- tion until August 30, 1945, when he was demoted to roustabout. Barnhart, according to his undisputed and credited testimony, became a member of the Union on May 1, 1941, anc} for 3 years, thereafter was chairman of the Union's grievance committee The undersigned finds that Bai nhart's union membership was Nell known to the respondent On the day of the election Barnhart was notihed of his demotion. The respondent explains that Barnhart was demoted because for a long period of time lie had been making an inexcusable number of cri ors in his gauge reports and that these errors necessitated frequent correction of the respondent's office and field records Barnhart admitted that he had made a number of errors and that on three occas.ons lie had been criticized in that connection. Board witness Nored testified that Barnhart made numerous errors and that he had suggested that Barnhart attend his work more closely Supetintendent Haines testified that on the morning of August 30, 1945, he was advised that Barnhart had made three more errors, that he consulted District Superintendent Finney about the situation, on the suggestion of Finney decided to demote Barnhart, and instructed Pi oduction Foreman Thompson to effect the demotion Thompson thereupon went to Barnhart's home and informed him that beginning the next day he would work as a roustabout. No explanation was given Barnhart at that time and none was requested. About a week later, Barnhart asked Thompson the reason for his demotion. Thompson replied that one reason was that Barnhart had made too many errors. Respondent's chief clerk, John L Suttle, testified that he examined the gauge tickets submitted by all switchers working on the same shift with Barnhart dur- ing the last 6 months of his employment in that position According to Suttle's uncontiadicted and credited testimony, Barnhart made 90 errors during that period, nearly twice as many as any other switcher, and 14 of them from August 24 to 30, 1945 To the undersigned, the respondent's reason for making the demotion appears adequate and is sufficient to overcome any inference that Barnhart was dis- cruninated against because of his union membership or activity. It will be recom- mended that the allegation in the complaint concerning Barnhart be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and, such of them as have been found to constitute un- tair labor pi actices, 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 certain unfair labor practices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act Having found that the respondent interrogated its employees regarding the Union, disparaged and expressed contempt for the Union, promised favored treatment to those who opposed the Union, and threatened reprisals against those who supported the Union, the undersigned is convinced that the respond- ent's conduct indicates a danger that other unfair labor practices on the part of the respondent are to be anticipated. The deterrent purposes of the Act will 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be defeated if the order is not as comprehensive as the threat. In order, there- fore, to make eltective the interdependent guarantees of Section 7 to prevent a recurrence of unfair labor practices and thereby minimize industrial strife which burdens and obstructs commerce, and thus to effectuate the policies of the Act, it is recommended that the respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. Having found that the respondent did not discriminate in regard to the hire -and tenure of employment of William E. Nored and C. D. Barnhart, it will be recommended that the allegations in the complaint with respect to the discharge of Nored and the demotion of Barnhart be dismissed. On 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, Local 459, affiliated with the Congress of Industrial Organizations, is a labor organization within the meaning of Section 2 (5) of the Act 2. By interfering with, rests°uuing, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 4 The respondent has not discriminated in regard to the hire and tenure of employment of William E Nored and C. D Barnhart, within the meaning of Section 8 (3) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the respondent, The Pure Oil Company, Van, Texas, its officers, agents, successors, and assigns shall: 0 1. Cease and desist from : (a) In any manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form, join, or assist Oil Workers International Union, Local 4.59, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to en- gage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act 2. Take the following affirmative action, which the undersigned finds will ef- fectuate the policies of the Act : (a) Post immediately at its operations in or near Van, Texas, in the Carroll District, and the Van Joint Account, copies of the notice attached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, after being signed by the respondent's representative, shall be posted by the respondent immediately upon the receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees customarily are posted. Reason- able 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 ten (10) days from the date of the receipt of this Intermediate Report what steps the respondent has taken to comply with the foregoing recommendations. THE PURE OIL COMPANY 15 It is further recommended that, unless on or before ten (10) days from the re- ceipt of this Intermediate Report the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. It is further recommended that the election of August 30, 1945, be set aside. It is further recommended that the complaint be dismissed to the extent that it alleges discrimination in regard to the hire and tenure of employment of William E Nored and C. D. Barnhart. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective November 27, 1945, any party or counsel for the Board may, within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writing, setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all mo- tions or objections) as he 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 perwission 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 transfer- ring the case to the Board. Any party desiring to submit a brief in support of the Intermediate Report shall do so within fifteen (15) days from the date of the entry of the order transferring the case to the Board, by filing with the Board an original and four copies thereof, and by immediately serving a copy thereof upon each of the other parties and the Regional Director. WALLACE E. ROYsr , Trial Examiner. Dated September 4, 1946. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: We will not in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Oil Workers International Union, Local 459, CIO, 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. All our employees are free to become or remain members of this union, or any other labor organization. Dated -------------------- THE PURE OIL COMPANY, Employer. 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. 739926-47-vol. 73-3