W. W. Holmes

In the Matter of W.111. HOLDIES, LoTTIE APPLE HOL_IIES HALEY, W. F. SIEBOLD, E. I. NEWBLOCr5 AND JOAN H. HILL and OIL WORKERS INTERNATIONAL UN70N, CIO Case No. 16-C 1323.-Decided January 14, 1944 Mr. Glenn L. Moller, for the Board. - Underwood, Johnson, Dooley di Wilson, by Mr. W. M. Sutton, of Amarillo, Tex., for the respondents: Mr. C. R. Williams, of Pampa, Tex., and Mr. F. S. Prince, of Borger, Tex., for the Union. Air. George J. Hadjinoff, of counsel to the Board. DECISION AND ORDER On August 26, 1946, Trial Examiner Wallace E. Royster issued has Intermediate Report in the above-entitled _proceeding, finding that the respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also recom- mended that the complaint be dismissed insofar as it alleged discrimi- nation in the hire and tenure of employment of E. T. Box. There- after the respondents and counsel for the Board filed exceptions to he Intermediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was conmlitted. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following exception. The Trial Examiner found that Howard Beasley, the son of Super- intendent Beasley, should be included in the bargaining unit despite his relationship to Superintendent Beasley. Counsel for the Board excepted to his finding. Inasmuch as the Union's status as the major- ity representative of the employees in the appropriate unit would not be affected by the disposition of this issue, we find it unnecessary to decide it. 72NLRB.No10. 39 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 respondents, W'. W. Holmes, Lottie Apple Holmes Haley, W. F. Siebold, E. I. Newblock, and John 11. Hill, Carson and Hutchinson Counties, Texas, and each of them, and their agents, successors, and assigns shall : 1. Cease and desist from : (a) Refusing to recognize and to bargain with Oil Workers Inter- national'Union, affiliated with the Congress of Industrial Organiza- tions, as the exclusive- representative of all pumpers and roustabouts on the Quinn, Newblock, Slebold, Moore and Lyall leases, exclusive of the superintendent and the roustabout foremen; (b) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form labor organizations, to john 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 Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Oil Workers Inter- national Union, affiliated with the Congress of Industrial Organiza- tions, as the exclusive representative of all the respondents' pumpers and roustabouts on the Quinn, Newblock, Siebold, Moore, and Lyall leases, excluding the superintendent and the roustabout foremen, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an agreement is reached, embody such understanding in a signed agreement; (b) Post in convenient places on each of the several leases copies of the notice attached to the Intermediate Report and marked "Ap- pendix A." 1 Copies of such notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being drily signed by the respondents, or their agent, be posted by the respondents imme- diately upon receipt thereof and maintained by them for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps I Said notice, however, shall be, and it hereby is, amended by striking from the first paragraph thereof the words "Recommendations of a Trial Examiner" and substituting in lieu thereof the words "A Decision and Order." In the event that this Order is enforced by decree of a Circuit Court of Appeals , there shall be inserted, before the words "A De- cision and Order," the words "A Decree of the United States Circuit Court of Appeals Enforcing." W. W. HOLMES, ET AL. 41 shall be taken by the respondents to insure that said notices are not altered, defaced, or covered by other material; (c) Notify the Regional Director for the Sixteenth Region (Fort Worth, Texas) in Writing, within ten (10) days from the date of this Order, what steps the respondents have taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed, insofar as it alleges discrimination in the hire and tenure of employment of E. T. Box. INTERMEDIATE REPORT Mr. Glenn L. Moller, for the Board. Underwood, Johnson, Dooley & Wilson, by Mr. W. M. Sutton. of Amarillo, Tex, for the respondents. Mr. C. R. Williams, of Pampa, Tex., and Mr. F. S. Prince, of Borger, Tex., for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed April 8, 1946, by Oil Workers International Union, CIO, 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 April 10, 1946, against W. W. Holmes, Lottie Apple Holmes Haley,' W. F. Siebold, E. I. Newblock, and John H. Hill, herein called the respondents, alleging that the respondents, and each of them, had en- gaged in, and were engaging in, unfair labor practices affecting commerce with-ill the meaning of Section 8 (1), (3) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and the amended charge, accompanied by notice of hearing thereon, were duly served on the respondents' and the Union. With respect to the unfair labor practices, the complaint alleges in substance: (1) that the respondents on or about December 31, 1945, discharged, and thereaf- ter refused to reinstate, E. T Box because of his membership in and activity on behalf of the Union.; (2) that the respondents on November 24, 1945,' and at all times thereafter, refused to recognize and to bargain with the Union although the Union was then, and at all times since has been, the representative of a majority of the employees in an appropriate unit; and (3) that the respondents by such acts, by disparaging and expressing disapproval of the Union, by inter- rogating their employees respecting union membership, and by warning their employees to refrain from assisting or becoming members of the Union, engaged in unfair labor practices within the meaning of Section 8 (1), (3) and (5) of the Act On or about June 21, 1946, the respondents filed their answer denying the com- mission of unfair labor practices and alleging that E. T. Box was laid off on January 1, 1946, because of economic and business reasons Pursuant to notice, a hearing was held at Pampa, Texas, on July 1 and 2, 1946, before the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondents were represented by counsel and 1 Named in the complaint as Lottie Apple Holmes. 2 Actual service was had only upon W W. Holmes, the active manager of the oil leases involved herein. An answer was filed prior to the hearing on behalf of all respondents, however, and.all were represented by counsel at the hearing. 3 Incorrectly set forth in the complaint as November 24, 1946. 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union by its officials 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 respondents moved to strike so much of the complaint as alleged a refusal to bargain on the ground that the propriety of the bargaining unit had not been determined by the Board The motion was denied. At the close of the hearing, counsel for the Boai d and foi the respondents joined in a motion, which the undersigned granted, to conform the pleadings to the proof as to dates, names and minor variances Counsel for the Board and for the respondents argued orally on the record None of the parties requested permission to file briefs with the undersigned and no briefs have been received Upon the entire record in the case, and front his observation of the witnesses, the undersigned makes the following FIxnINGS or FACr I THE BUSINESS OF THE RESPONDI N rS The respondents possesses varying interests in 5 leases in oil pioducing tracts in Carson and Hutchinson Counties in the Texas Panhandle ° Four of the leases are contiguous. covering an area of 400 acres, the fifth, the Lyall lease, is 25- miles away. Of the respondents, only W W. Holmes is active in the management of the properties and only he and Haley possess an i iterest in all the leases. From headquarters in Amarillo, Texas, Holmes supervises the production and distribu- tion of the oil from the leases, maintains a pay-roll account front which the workers are paid, and periodically assesses the remaining respondents for their proportionate share of the operating expenses' necessary labor on the leases is performed by a pool of pumpers and roustabouts under the Immediate super- vision of Superintendent George Beasley Under author itv delegated by Holmes. Beasley hires, discharges, and assigns the wyoikeis as the operations require. This, individuals may work primal ily on a 'nigle le.i.r or ulay be shifted fl om lease to lease in tine course of a day. No individual woiker is heated as the employee of any individual respondent- but all occupy similar status as employees common to all Considering the ownership of the leases. all pumpers and roust- abouts are always working on propel ties in whi(h Holme'i' and Haley 1tav e a proprietary interest and are always available to, though not always engaged in. work oil leases in which the remaining respondents are intoresteil While it is not found that the respondents constitute a partnership, as the complaint alleges, it is clear that they have delegated authority to W W Holmes to inallage tile properties and, as an incident thereto, to deal with the workers on the leases in matters of wages, hours of employment, and other conditions of employment. At least, insofar as the working force is concerned. the respondents are joint adventurers and are employers, in any event, they ate emploers within the meaning of Section 2 (2) of the Act ° " See following table Lease Location Ow nership Quinn, 160 acres----_---- Carson County--------- --- Holmes and Haley Lyall, 80 acies_-___-_---- Hutchinson County -------_ Holmes and Haley Moore, 80 acres------_--- Hutchinson and Carson Counties----- Holmes and Haley Siebold, 80 acres-_-____-- Carson County ----_-_ -__ Holmes, Haley. Hill and Siebold. Newblock, 80 acres ...... Hutchinson and Carson Counties----- Holmes New block, and Haley. 5 Including Holmes' salary as niauragei. 9 These findings are based upon the respondents' answer and upon the uncontradicted testimony of W W Holmes and Geo ge Beasley. W. W. HOLMES, ET AL. 43 The entire oil production of the leases, amounting to approximately 190,000 barrels annually and valued in excess of $200,000, is sold and delivered on the leases to Humble Pipe Line Company and Magnolia Pipe Line Company. In the pipe lines, the oil is mingled with other oil produced in the Texas Panhandle and is delivered to refineries at Beaumont or Baytown, Texas. The refined products from the oil so delivered is shipped in substantial amounts to points outside the State of Texas." - IT '1Hi ORCANIZA'rION INVOLVED Oil Woikers International Union, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the respondents III 'rHF UNFAIR TABOR PRACTIOES A The iofus a l to bargain 1. The appropriate unit and the Union 's representation of a majority therein On November 24, 1945, the date upon which the respondents first refused to recognize the Union. 5 pumpers and 1 roustabout were working on the leases, all under the direct supervision of Superintendent George Beasley. The respond- ents urge that pumpers and roustabouts, together, do not constitute an appro- priate unit for the reason that each pumper works only on the lease to which he is assigned whereas roustabouts work wherever on the leases their services may be required. It is the apparent theory of the respondents that pumpers are employees only of the individuals who own the lease upon which the pumpers work and that their employment relation in that respect is dissimilar to that of the roustabouts. The undersigned finds no merit in this contention. The wages of all employees constitute a charge against the leases upon which they perform work and the pay-roll account is eventually reimbursed by the lease- holders for the work-hours performed on the separate leases. The evidence shows that punnpeis, as well as roustabouts, are not confined to working on a single lease and, on the contrary, that all employees routinely wok on more than one lease One pumper, in fact, working a late afternoon shift, has a route covering 4 of the leases. Puihpers superintend the operation of the wells and the flow of crude oil from the wells to storage tanks. They generally live in houses provided for them on the leases to which they primarily are assigned and perform minor maintenance and repair work on the machinery on the leases Roustabouts perform general maintenance work on all the leases and continue a mobile crew. Four of the leases are contiguous, another, the Lyall lease, is about 25 miles distant In at least two instances.' roustabouts have been promoted to pumper. It is clear that roustabouts and pumpers perform complementary functions under substantially similar working conditions and the undersigned finds that both classifications, excluding the superintendent and the roustabout foreman, at all times material herein constituted and now constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. According to the credited and uncontradicted testimony of Board witnesses, supported by union membership application cards bearing apparently genuine and unchallenged signatures, 5 of the employees in the unit, on November 18, 1945, designated the Union to represent them in matters of collective bargaining. On November 23, 1945, the Union wrote the respondent W W. Holmes at the These facts were stipulated at the hearing. Viz , Alex Burgess and Loss Johnson. 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondents' Amarillo office, asserting that a majority of the employees on the leases were its members and requesting a bargaining conference The registry return receipt indicates, the respondents admit, and the undersigned finds, that the Union's letter was received by the respondents on November 24, 1945. No reply was made. Holmes asserts that he then doubted the Union's claim of a majority, but admittedly did not request the production of evidence to support the claim, and contends that in any event the unit described is not appropriate. The latter contention has already been found to lack merit Counsel for the Board contends that on November 24, the respondents had 5 pumper s and no more than 2 roustabouts in their employ and that, therefore, the Union represented a clear majority of the employees. The respondents agree that there- were 5 pumpers on that (late but argue that 5 roustabouts also were then in an employment relation to them, waking a total of 10 workers in the unit This divergence arises because of the disputed employment relationship then existing between the respondents and John Mynear. Howard Beasley, Loss Johnson, and Joe Romack The respondents argue that John Mynear. a roustabout who started work on November 26, should be counted among the employees on November 24 because he was hired before the latter (late The undisputed facts me that Superintend- ent George Beasley left word at Myneni's home in mid-November that there was work available for him and, a few days later, was informed by Mynear• s wife that Mynear would report for work on November 26. During the period pre- ceding the latter (late, Mynear was employed elsewhere The undersigned finds that Mynear was not the respondent's employee until he reported for duty and was put on the pay roll Until that date, November 26. Mynear had none of the duties or responsibilities of an employee and. under the informal arrange- ment described. the respondents could, at any time before acceptance, have withdrawn their offer of employment Mynear will not be counted as an em- - ployee of the i espondents on November 24. Howard Beaslev,' son of the superin- tendent, returned from military leave and was reinstated to his position as roustabout on or about October 1, 1945. He secured a leave of absence on November 9 and returned to work opi December 1, 1945. The Board's attorney contends that Howard Beasley should not be counted among the employees in the unit on November 24 because he was not then working and because of his close relationship to the superintendent Howard Beasley's absence was pre- arranged for a definite and relatively short period and did not affect his em- ployment relation to the respondents While it may be argued that to include Howard Beasley in the bargaining unit would, in effect, permit the superin- tendent, through his son, to -participate in the choice of bargaining representa- tives, the undersigned is not persuaded to this view. Even assuming that the attitude of his father toward self-organization would weigh heavily with him, Beasley is, nonetheless, sat generis and entitled to exercise his choice in such matters. The issue thus presented is distinguishable on its facts from that in other cases where the Board has found close relatives of management officials not to be employees within the meaning of the Act10 for Superintendent Beasley, while clearly a representative of the respondents, was not the employer of his son. Howard Beasley will, therefore, be counted as among the employees in the appropriate unit Loss Johnson, a roustabout, was granted military leave by the respondents in September 1945, and returned to work on December 7, following. Joe Romack, a roustabout, secured mdrtar;y leave fi ono the respondents ° Sometimes referred to in the record as Jack Beasley. '0 See N L R. B v 0. U. Hofmann, et al , 147 F (2d) 679 (C. C A 3). W. W. HOLMES, ET AL. 45 in May 1043. and returned to his employment after honorable discharge January 23, 1946. On November 24, Johnson was at an Army installation in Colorado and Romack in service in the South Pacific The a espondents contend that both Johnson and Roinack were employees on that (late and that any majority claimed by the Union must be established in a group including both of them. While the respondents' contentions on this point have a certain plausibility in view of recent Board decisions in representation cases" directing that ballots be mailed employees on military leave where to do so would not unduly delay the election result, a different problem is presented here To succeed ill it Board election, a union is required only to secure a majority of valid votes cast and those too indifferent to exercise their franchise are deemed thereby to have agreed to accept the verdict of the voters. Thus, where employees absent on military leave abstain fiomn voting, either in person or by absentee ballot, their absention is not counted as a vote against the union However, in proving a majority by it showing of cards, as here, a union in order to prevail must prove an absolute majority Manifestly. it is impracticable and unjust, to the em- ployees who actually are working and who desn e to be represented in matters of bargaining to require that employees on military leave, often at remote bases and without immediate interest in such proceeding, either join affirmatively in selecting such a representative or be counted as in opposition to that choice. To illustrate, if all S of the employees normally in the nnit'2 were oil militarv leave and were temporarily replaced, the replacement employees would be unable to select a bargaining representative Bien though unamnionsly so dis- posed without the concurrence of at least one of those in the service. If those on leave were inaccessible or apathetic, the desires of the working employees would be frustrated Clearly, such a rule would not serve to effectuate the policies of the Act" The undersigned finds that neither Johnson nor Romack is to be counted in the unit on Novennbei 24 for the purpose of determining the Union's majority. The undersigned finds that on November 24. 194.5. the Union had been desig- nated by 5 of the 7 employees then in the unit and that, in consequence, the Union was on that date, and at all times since has been, the exclusive representative of all employees in the appropuate unit for the purpose of collective baigain- ing with respect to rates of pay, hours of employment and other conditions of employment within the meaning of Section 9 (a) of the Act. 2 The refusal to bargain Having found, adversely to the iespondents, that on Novenibei 24, 1945, the Union represented a majority of the employees in an apl)ropriate unit, it remains to be determined whether the respondents' refusal to bargain thereafter was unlawful As has been stated, the iespondents did not reply to the Union's request for recognition allegedly because they questioned the claim of majority and the propriety of the unit The undersigned recognizes, of course, that an employer is normally not bound to accept the claim of a union in such matters and may requite proof of majority by any reasonable means, including a Board election" Thus, also, a refusal to bargain based upon an honest and reasonable belief that the unit described is inappropriate is not, normally, an unlawful refusal The respondents, however, are vulnerable of both points By ignor- ing the Union's request for a bargaining conference and its claim of majority " See Matter of South West Pennsylvania Pipe Lines, 64 N L R B 1384 The respondents ' normal complement of workers was 5 pampers and 3 i onstabouts ^a Matter of Supersweet Feed Companil. Incorpoiated, 62 N L R B. 53 14 N L R B v William Tehel Bottloig Co , 129 F (2d) 250 (C C A. 8). 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD support among the employees, the respondents assumed the hazard that the Union represented the majority, which, in fact, it did, and are now in no posi- tion to complain that convincing proof was not then offered" The respondents' asserted doubts respecting the propriety of the unit in which the Union sought recognition, was not, the under signed finds, bone tide Not only was the unit clearly appropriate, as has been found, but also the respondents recognized this circumstance by dealing with the pumpers and roustabouts as a group both before and after November 24 in matters of wages and hours Perhaps a month before that date, Superintendent Beasley ai ranged a meeting with the pumpers and roustabouts, at the house of Alex Burgess, to get their views on an increase in wages, and in December 194:, called employees in those categories to his house for the put pose of continuing negotiations on changes in wages and hours"' Following these meetings, but without, so far as the record shows, any agreement with the employees, the respondents on February 1, 1946, made changes in their wage structure having the effect of giving pumpers and roustabouts approximately the same earnings for a shorter workweek. The respondents contend that, assuming the Union's majority and the propriety of the unit on November 24, 1945, they should not now be required to bargain with the Union as the employees on May 10, 1946. signed a petition to the effect that they no longer desired representation by a 01O Union" The undersigned finds that this circumstance is attributable to the respondents' unfair labor practices is detailed above and as set forth in suceeding paragraphs and does not excuse the respondents from their statutory duty t8 By ignoring the Union's request for recognition, by bargaining directly with the employees in matters of wages and lours, after the Union had requested recognition, and by unilaterally making changes in employees' wages and hours of employment, the undersigned finds that the respondents have refused to bargain with the Union and have thereby violated Section 8 (1) and (5) of the Act . B ILntelfeience, res(1a rtt, crud coerctoln Shortly after the employees signed union designations, Superintendent Beasley queried some of them concel nng their actions in that respect. Beasley inquired of Lynn Thompson if lie had joined the Union ; of George Box and E. L Hughes if they had taken similar action ; and, in the presence of pumper Alex But gels, 'IN L R B v Crown Can Company, 138 F (2d) 263, 267 (C CA 8). 16 None of the witnesses was able to give the piecise dates of these meetings Beasley testified that the meeting at his house occurred , lie thought, after he lead' heard rumors of union activity Loss Johnson testified that lie was in attendance and, since Johnson did not retuin to the employ of the respondents until December 7, the undersigned finds that the meeting occurred during that month ii The petition is so worded. It does not appear, however, that the signatory employees desired iepiesentation by another union The petition was circulated by E L Hughes, pumper on the Lyall lease, with the con- sent but not at the suggestion of Holmes, at a time when Holmes was considering entering into it settlement agreement with the Regional office of the Board entailing the transfer of Hughes to another lease The undersigned is convinced, and has tound , that the em- ployees would not have signed such a petition had not the respondents already unlawfully refused to bargain with the Union and committed the other unfair labor practices heiein- after detailed thereby discouraging union membership As the court said in N. L R B v. Bnake Machine Tool Co, 1:13 F. (2d) 618, 621 (C C. A. 6) . Assuming loss of majority representation, the Board was entitled to conclude as it fairly appears to have done that such loss could not be separated from the unfair labor practices and that the effect of the refusal to bargain should be iemedied by affording the emplo.i ees an opportunity to restore the status quo. W. W. HOLMES, ET AL. 47 told Acting Foreman L. Z. Rhodes i9 that he was sorry Rhodes had joined the Union and that if the organizational campaign was unsuccessful, Rhodes would be "sunk" with the respondents 2° Alex Andrew Burgess testified,21 that, upon the solicitation of E T Box, he joined the Union on November 19, 1945, that about 3 weeks later, Superintendent Beasley stated the Union's success would result in changes among the foremen, and that, "if they don't make it hard enough on you goddamned fellow, then I'll come in " Burgess attended the December meeting of employees at Beasley's house where wages and hours were the subject for discussion During this meeting, according to Burgess, Beasley stated that the establishment of union conditions of work would result in lessened earnings for the employees and that Holmes would fight the Union. On several occasions, according to Burgess, Beasley asked him what good he expected to derive from the Union and warned that union supporters would lose their employment E T Box, whose discharge will be discussed in a following section, testified that Beasley questioned him concerning his union membership and went on to say, with respect to Box's organizational efforts, "Well, boys, if you do, I want you to make a go of it, like to see you make a go of it, but it you-don't it is going to be rough on you " Beasley admitted questioning Hughes in regard to the latter's union member- ship but, professedly, could not recall whether he had similarly questioned other employees He also admitted expressing the wi ish to Rhodes that the latter had not joined the Union m.d making the observation that such action would adversely affect Rhodes' standing with the respondents Beasley (lid not deny that Burgess was present on that occasion but asserted that the statement to Rhodes was not made sei ionsly.Y2 He denied the remarks concerning the Union attributed to him by Burgess and Box. Since Burgess did not testify in the presence of the undersigned, there was no opportunity to observe his demeanor. Box was a convincing witness, appeared to relate in a straightforward manner the content of his conversations with Beasley, and his testimony is believed Burgess' testimony- is inherently credible in view of the respondent's hostility toward the Union as expressed through Beasley and is accepted Beasley, conversely, was vague, forgetful, rambling, and self-contradictory, frequently evasive, and prone to indulge nr exaggerations Except where uncontradicted or where supported by credible witnesses, his testimony is l ejected. The undersigned finds that the respondents, through Beasley, supplemented their original unl.utiful refusal to bangam with the Union, by interrogating their employees concerning union membership, by threatening repi isals to those who joined or assisted the Union, by asserting that self-organization would result in 11 On November 1, 1945, Rhodes was named acting foreman and his promotion was later made permanent The evidence shows, the pieties agree, and the undersigned finds that Rhodes as foreman was clothed with effective authority to recommend the lire and dis- charge of roustabouts and therefore, lie is not included in the appropriate unit Rhodes was no more than a passive Union member and took no part in the organizing campaign 20 These findings ai e based on the uncontradreted and credited testimony of Thompson, Box, Hughes, and Rhodes 21 By stipulation, Bui gess' testimony was taken under oath on June 25, 1946, in the pres- ence of counsel for the Board and the respondents Also by stipulation, his testimony was read into the record herein, and, by agreement of the parties, is considered as if adduced at the hearing 22 Beasley testified that his purpose was, "just to see [Rhodes] squirm," thereby effectively contradicting his earlier testimony that his words were intended as a joke or would be so interpreted by Rhodes 731242-47-vol. 72-5 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lessened earnings , and by deriding the possibility of securing benefits through collective action , thereby discouraging membership in the Union and encouraging the repudiation of the Union By such acts, the respondents interfered with, restrained , and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act and, thereby violated Section 8 (1) of the Act. C. The dischai ge of B. T. Box Box, an experienced pumper, was hired by Beasley in September 1944, and discharged December 31, 1945. During the entire term of his employment, Box worked as pumper on the largest of the respondents' leases, the Quinn lease. According to Box, he was subjected to criticism on only two occasions-once during the first 6 months of his employment when Beasley requested him to clear some lumber from the yard of the house assigned to him and, again, on an unspecified date, when Beasley directed him to cover oil which had leaked from around one of the tanks Box admitted that in August 1945, lie damaged a boiler by operating it with too little water but denied that any complaint was registered with him on that account. Box initiated the union movement among respondents' employees and was its most effective protagonist Beasley testified that he regarded Box as the organizer of the Union and, on an occasion when he and Box were discussing the Union, remarked according to Box's uncontradicted and credited testimony, "Box, you have more influence over these men than anybody I have seen yet " On December 24, 1945, when Beasley informed Box that he would be "laid-off" 23 the following week, Box asserted that his union activity was the cause, Beasley admittedly, replied, "You might think so; I know different. Anyway you would have to prove it " Beasley and Holmes testified that for several months prior to December 31, they had considered the advisability of discontinuing night pumping on the theory that such practice was damaging to the wells and that pumping for shorter hours would result in a greater production According to Holmes, it was decided in November 1945, to put the wells on a shorter pumping schedule eftective Januai y 1, 1946 Witnesses for the Board and the respondents testified that such a change in practice had been a subject for discussion for several months prior to the latter date and all agreed that such a change reasonably promised to prove profitable. Prior to December 31, the respondents employed five pumpers, one each on the Quinn, Lyall, and Siebold leases, one caring for the Newblock and Moore leases, and one night pumper on the Quinn, Siebold, Newblock, and Moore leases By shortening the -hours of pumping, the respondents no longer had need for the night pumper The respondents' answer states that Box was selected for lay-off because he possessed less seniority than the other pumpers and also because he was less efficient than his fellows. Beasley testified, however, that Box was laid off because lie had less seniority than his replacement, L E Thompson, the night pumper, whose employment with the respondents dated from 1942 24 The under- signed finds that on December 31, 1945, the respondents for economic reasons had need for only four of the five pumpers then employed and the selection of Box for discharge, while having a suspicious aspect in view of the respondents' hostility 23 It is clear that Box was discharged rather than laid off After December 31 he was no longer regarded by the respondents as an employee and was not called back when vacancies occurred 24 Burgess started pumping in 1941, and continued until lie quit in March 1946, with a 4- month break in employment in 1944 Hughes was emploed in August 1942, was still em- ployed at the time of the hearing, but also quit for a 4-month period in 1944 Welch wol ked steadily as a pumper from August 1943 Theie is no evidence as to prior lay-offs and no other indication that the respondents recognized seniorit3 rights W. W. HOLMES, ET AL. 49 toward the Union , was predicated on a reasonable formula and has not been proved to have been discriminatory." The complaint alleges further , however, that Box was refused reinstatement discriminatorily Since there was no discrimination in the discharge of December 31, the respondents were, of course, under no duty thereafter to reinstate Box, although an application from Box for reemployment was entitled to at least the same consideration as such an application from any individual seeking work. Box, admittedly, made no request of the respondents for reemployment after his discharge nor die the Union do so in his behalf The respondents' answer asserts, and it is uncontroverted , that shortly after December 31, Box secured other employment the nature of which does not appear. After a month on the shorter pumping schedule , the respondents found that oil production had further decreased and on February 1, 1946 , reinstituted longer pumping hours and promoted Loss Johnson , roustabout , to pumper on the night shift. Presumably , someone was hired to fill the roustabout vacancy thus created." On March 11 , 1946 , Alex Burgess , pumper on the Siebold lease , resigned and was immediately replaced by L B McWilliams, an individual not previously in the respondents ' employ. Beasley admitted that he learned in a conversation with the Board's Field Ex- annuer "early in March" 1946, that a charge had been filed by the Union alleging the discriminato ry discharge of Box and that he thereby knew that Box "wanted his job back " in reply to a question posed by respondents ' counsel, Beasley testified that he had not offered Box employment as pumper on the Siebold lease when a vacancy occurred there in March 1946 , because , "In the first place, I don't like Mr Box 's work, and I don't think we could get along, and in the second place, I didn 't know I had to take him back . Nobody told me I did Mr Box to me would be an undesirable man to have around He might be the best man in the world some place else, but to me, he would be undesirable " Holmes, also, expressed reluctance to rehire Box Sometime in April or May 1946 , Holmes, on behalf of the respondents , tentatively agreed in discussing an informal settlement of this case, to reemploy Box as pumper-on the Lyall lease where lie would have charge of 6 instead of 13 wells. Holmes testified that Box could "run that lease across the river, the Lyall lease," but that the Quinn lease was too large for him. Beasley also testified that Box was not an efficient pumper and was not coopera- tive. Beasley characterized the damaging of the boiler by Box in August 1945, as inexcusable and asserted that he had so told Box after that incident. Al- though Beasley stated that he had, on occasion , criticized Box's work, his testi- mony as to such incidents is curiously evasive and obviously exaggerated. The undersigned finds that Box was criticized on only three occasions : concerning the boiler damage , concerning the old lumber in the yard at his home, and con- cerning the oil leakage around the wells . Having in.mind Box 's prominence as ' The undersigned is convinced that the respondents proffered the reasons for adopting the shorter pumping schedule are bona fide It appears that Holmes reluctantly accepted Beasley's persistent recommendation in that respect and reinstituted the longer schedule on February 1, 1946, contrary to Beasley's desu e In the opinion of the undersigned, no ex- ception can reasonably be taken to the selection of Box for discharge inasmuch as his period of employment with the respondents was substantially less than that of any other pumpers. Even though the retold indicates that Beasley's antipathy toward Box was premised on his hostility toward the Union, it does. not appear that the respondents resorted to a "mere temporary strategeni " in order to terminate Box's employment . Cf N L R. B v Cape Country Milling Co, 140 F (2d) 543 (C C A 8) 2' The undei signed finds no significance in the circumstance that Box was not offered em- plovment as a roustabout, for Box had advised Beasley that he did not desire such an assignment and testified at the hearing that lie wanted only the job from which he had been discharged , pumper on the Quinn lease 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a union member and sympathizer, his influence over the other employees, and Beasley's expressed hostility to the Union, the undersigned finds that Beasley's antipathy toward Box was but a reflection of the former's dislike of the Union. Anti-union animus, however, unaccompanied by discrimination in regard to hire and tenure of employment, does not amount to a violation of Section 8 (3) of the Act. As has been stated, Box never asked for reemployment and no such request was made in his behalf. Notice from the Board's Field Examiner to Beasley that Box considered his discharge to have been discriminatory and desired rein- statement was not, in the opinion of the undersigned, an application for reem- ployment but a demand, as of right to reinstatement. Such a right did not exist. In these circumstances, the undersigned finds, the respondents were under no obligation to consider Box as an applicant for employment when McWilliams was hired as pumper on the Siebold lease on March 11 It will be recommended, there- fore, that the allegation in the complaint that the respondents violated Section 8 (3) of the Act be dismissed.27 IV. THE EFFECT OF THE UNFAIR^LABOR PRACTICES ON COMHFROE The activities of the respondents set forth in Section III, above, occurring in connection with the operations of the respondents described in Section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and, such of them as have been found ito con- stitute unfair labor practices, tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the respondents engaged in certain unfair labor practices, the undersigned will recommend that they cease and desist therefrom and that they take certain affirmative action which the undersigned finds will effectuate the policies of the Act It has been found that the respondents refused to bargain collectively with the Union as the exclusive representative of their employees in an appropriate unit Accordingly, it will be recommended that they bargain collectively with the said Union upon request. Because of the respondents' pervasive hostility to the efforts of their employees to enjoy the rights guaranteed in Section 7 of the Act, it will be recommended that they cease and desist from in any manner' in- terfering with, restraining, or coercing their employees in their right to self- organization Since it has been found that the respondents did not discriminate in regard to the hire and tenure of employment of E T Box, it will be recommended that the complaint be dismissed as to him Upon the basis of the foregoing 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. W W Holmes, Lottie Apple Holmes Haley, W. F. Siebold, E. I Newblock, and John H. Hill are, and each of them is, employers within the meaning of Section 2 (2) of the Act. n This is not to say, however , that the respondents may refuse to consider a proper application foi employment from Box Such an application , if made, must be considered without reference to the fact that Box was a witness in this proceeding and without regard to Beasley's antipathy toward he Union. -W. W. HOLMES, ET AL. 51 3. All pumpers and roustabouts working on the Quinn, Newblock, Siebold, Moore, and Lyall leases, excluding the superintendent and the roustabout fore- man, constitute a unit appropriate for the purposes of collective bargaining ww ithin the meaning of Section 9 (b) of the Act. 4. On November 24, 1945, Oil Workers International Union, CIO, was, and at all times thereafter has been, the exclusive representative of all the employees in the appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 5 By refusing to recognize and to bargain with Oil Workers International Union, CIO, the respondents have engaged in and are engaging in unfair labor practices within the meaning of Section S (5) of the Act 6 By interfering with, restraining, and coercing their employees in the exer- cise of the rights guaranteed in Section 7 of the Act, the respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (1) of the Act 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 8 The respondents have not discriminated in regard to the hire and tenure of employment of E. T Box within the meaning of Section S (3) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the respondents W W. Holmes, Lottie Apple Holmes Haley, W. P. Siebold, E. I. Newblock, and John H Hill, and each of them, their agents, successors, and assigns shall: I Cease and desist from: (a) Refusing to recognize and to bargain with Oil Workers International Union, CIO, as the exclusive representative of their employees in an appro- priate unit, (b) In any other manner interfering with, restraining, or coercing their employees in the exercise of their right to selt-organization, to form labor or- ganizations, to loin or assist Oil Workers International Union, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in conceited 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) Upon request bargain collectively with Oil Workeis International Union, CIO, as the exclusive representative of the respondents' pumpers and roustabouts on the Quinn, Newblock, Siebold, Moore, and Lyall leases, excluding the super- intendent and roustabout foreman, in respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an agree- ment is leached, embody such understanding in a signed agreement; (b) Post immediately in convenient places on each of the several leases copies of the notice in the form attached hereto marked, "Appendix A." Copies of such notice, to be furnished by the Regional Director for the Sixteenth Region, after being duly signed by the respondents, or their agent, shall be posted by the respondents immediately upon'the receipt thereof, and maintained by them 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 respondents to insure that said notices are not altered, de- faced, or covered by other material; 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) 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 respondents have taken to comply therewith. It is further' recommended that the complaint be dismissed insofar as it alleges discrimination in the hire and tenure of employment of E T Box It is further recommended that, unless on or before ten (10) days from the date of the receipt of this Intermediate Report, the respondents notify the said Regional Director in writing that they will comply with the foregoing recom- mendations, the National Labor Relations Board issue an order requiring the respondents to take the action aforesaid 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 (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 motions or objections) as he relies upon, together with the original and four copies of a brief in sup- port 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 per- mission 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 older 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 ROYSTEII, Trial Examiner. Dated August 26, 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, 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. We will bargain collectively 'upon request with the above-named union as the exclusive representative of all employees in the bargaining unit de- scribed herein with respect to rates of pay, hours of employment or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All pumpers and roustabouts working on the Quinn Lyall, Moore, Siebold, and Newblock leases, excluding the superintendent, the roustabout foreman, W. W. HOLMES, ET AL. 53 and any other supervisory employees with authority to hire, promote, dis- charge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action. W. W. HOLMES, LOTTIE APPLE HOLMES HALEY, W. F. SIEBOLD, E . I. NEWBLOCK, AND JOHN H. HILL, By---------------------------- ------------------ (Representative) (Title) Dated----------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.