R. J. Oil & Refining Co., Inc.

R. J. OIL & REFINING CO., INC. 641 WE WILL NOT discourage membership in International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America , Local Union NO. 310, AFL, or any other labor organization of our employees , by discriminating in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization , to form , join, or assist International Brother- hood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , Local Union NO. 310, AFL, 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 , or to refrain from any or all of such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized in Section 8 (a) (3) of the National Labor Relations Act. WE WILL offer to Kenneth L. Van Horn, E. W. Richins, Jr., and John Cox immediate and full reinstatement to their former or substantially equivalent positions , without prej- udice to any seniority or other rights and privileges previously enjoyed , and make them whole for any loss of pay suffered as a result of discrimination against them. All of our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate against any employee because of membership in or activity on behalf of any such labor organization. TEXAS INDEPENDENT OIL COMPANY, INC, Employer. Dated ................ By.................. .. ........ ..... .................................... ... (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. R. J. OIL & REFINING CO., INC. and OIL WORKERS INTER- NATIONAL UNION, CIO and DISTRICT 50, UNITED CON- STRUCTION WORKERS OF AMERICA, AND ITS LOCAL 13695, affiliated with UNITED MINE WORKERS OF AMERICA, Party to the Contract. Case No. 35-CA-293. April 30, 1954 DECISION AND ORDER On June 29, 1953, Trial Examiner James A. Shaw issued his Intermediate Report in the above-entitled proceeding finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the copy of the Intermediate Report attached hereto. He also found that the Respondent had not engaged in certain other alleged unfair practices and recommended the dismissal of those allegations. Thereafter, the Respondent, District 50, the General Counsel, and the charging Union filed exceptions to the Intermediate Report, with supporting briefs. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, exceptions, briefs, 108 NLRB No. 103. 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the entire record in the case , and, to the extent not inconsistent with the findings and conclusions made below hereby adopts the Trial Examiner ' s findings , conclusions, and recommendations. 1. A principal allegation of the complaint in this case is that the Respondent refused to bargain with the Union following its certification as majority representative , and that suchcon- duct breached the obligation imposed upon the Respondent by the statute . The Trial Examiner so found, and we agree. As set forth in greater detail in the Intermediate Report, on April 16, 1951, the Union was certified by the Board as the statutory bargaining representative of the Respondent's pro- duction and maintenance employees . A week later , it requested a meeting with the Respondent to negotiate a collective -bargain- ing agreement , and meetings were held on May 16, June 4, and July 11, but the parties were unable to-reach agreement on a complete contract . The Union then voted to strike for a contract . During the strike, which began on July 17, the re- finery manager and superintendent , Fuller, told the Union's local employee committee that the Respondent ' s president, Smith, would not meet "while we was on strike . He could not meet until we went to work ." The Union abandoned the strike on July 27 and the employees returned to work . The parties met again on October 2, 1951 , and January 18 and February 5, 1952, when negotiations were finally broken off with no agree- ment reached. On February 9, the Union again struck , because it was unable to reach a satisfactory agreement with respect to the discharge of employees Sollman and Chandler . By letter dated March 20, 1952, a union representative requested a conference with the Respondent for the purpose of settling the disputed issues in order to reopen the plant and to return the strikers to the payroll . The next day Smith replied, acknowledging receipt of the request and stating, "It is my policy not to meet and discuss any issues in dispute while the plant is involved in a strike . . . . I want you clearly to under- stand that I do not intend to meet with you or any Union repre- sentative and discuss any issues involved as long as the Plant is on strike ." Four days later the Union reiterated its desire to meet with the Respondent at any time . Although the strike continued until June 23, the parties have not met in any other bargaining session. The Trial Examiner correctly found that the refusal to meet with the Union during the July 1951 strike was a direct violation of Section 8 (a) (5) of the Act. Established Board and court precedent hold that a refusal to meet and bargain with the certified representative of employees during a strike violates the Act.' Similarly, the Respondent ' s unequivocal 1 West Fork Cut Glass Company, 90 NLRB 944, enforced 188 F 2d 474 (C. A. 4); Old Town Shoe Company , 91 NLRB 240; N. L. R B. v. United States Cold Storage Corp., 203 F 2d 924 (C. A 5), enforcing 96 NLRB 1108, cert, denied 346 U S. 818. R. J. OIL & REFINING CO., INC. 643 rejection of the Union's direct request in March 1952 to dis- cuss ways and means for settling that strike was also an unlaw- ful rejection of the veryprinciple of collective bargaining which the Act makes mandatory . As the circuit court said in N. L. R, B. v. Reed and Prince Manufacturing Company, 118F. 2d 874 , 885 (C. A. I.), cert. denied 313 U. S. 595, "If in the presence of a strike an employer could avoid the obligation to bargain by declaring further efforts to be useless , the Act would largely fail of its purpose." In further support of the broad refusal -to-bargain allegation, the General Counsel also urged certain other aspects of the meetings that did take place , either as separate violations of the Act or at least as further indicia of the Respondent's unlawful resolve not to bargain with the Union in good faith. The Trial Examiner considered all of these subsidiary alle- gations and discoursed on each of them at great length. On some of these allegations his conclusions are clearly wrong.,2 He found , for example , that the Respondent refused to open its books for inspection by the Union and thereby committed a totally independent unfair labor practice . The record shows instead, and we find , that the union representatives never demanded inspection of the company records; indeed the parties eventually agreed amicably on wage increases with examination of the books never becoming an issue between them. Further , the Trial Examiner erroneously construed certain earlier Boai°d decisions as holding that the mere shifting of positions during bargaining by an employer isomer se an unfair labor practice . Regardless of whether hasty or unreasonable withdrawals of specific concessions painstakingly achieved indicate bad faith in bargaining in a particular con- text, it does not follow that a party to collective bargaining is, in all contexts , rigidly bound to each and every tentative decision reached. With respect to certain other aspects of the Respondent's actions during the period of negotiations - e.g., the Respondent's abrupt termination of all negotiations on February 5, 1952, and its opposition to nonemployee members on the Union's bargaining committee - the Trial Examiner may have held 2 Member Murdock does not agree that the Trial Examiner was "clearly wrong" on the two allegations mentioned in this paragraph. Contrary to the finding that the union represent- atives never demanded inspection of the company records, the record shows that President Smith offered to permit Freeman to examine Respondent 's books to substantiate its claimed inability to give a wage increase . The Union accepted the offer but understandably asked to have its accountant make the inspection rather than Freeman , who was a production worker without knowledge of books. The Respondent refused to permit this. With respect to the other allegation - shifting positions during bargaining - Member Murdock is not convinced from reading the Intermediate Report that the Trial Examiner intended to or did make a finding that this conduct was per se a violation. The Intermediate Report is clear that the Trial Examiner found this conduct an indicia of bad faith. It is not clear that he found anything beyond that. Member Murdock agrees with his colleagus however that in view of the clear refusal to bargain during the strikes which requires an 8 (a) ( 5) order, it is not necessary to discuss or pass upon other 8 (a) (5) issues either individually or as related to overall bad faith. 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD correctly, on the entire record, that the Respondent thereby revealed an intention to defeat its employees' attempt to bargain collectively. Unlike the Trial Examiner, however, we deem it unnecessary to pass upon each and every one of the many detailed items urged by the General Counsel as proof of the unlawful refusal to bargain. Neither our ultimate con- clusions nor our remedial order herein would be altered by such further consideration. The Respondent's unlawful refusal to bargain , as alleged in the complaint, is amply proved by its outright refusal to recognize and deal with the Union during both the 1951 and 1952 strikes. The Respondent now contends that its refusal to bargain during the strike was justified because an impasse in the bargaining had been reached by the parties before each of the strikes. Significantly, however, its refusal of the Union's requests for conferences at those times was not explained on this ground. Moreover, the record does not support the assertion that bargaining had reached an impasse. While one of the parties may have indicated very strongly its insistence on a particular item or two of the conflicting proposals, it does not follow that continued discussion of such items or the many others involved might not have led the parties to an eventual settlement of the entire disagreement between them. The Respondent's reliance upon certain earlier Board decisions is misplaced. In contrast to the Respondent's refusal to meet until each of the strikes was called off, the employer in Purity Biscuit Company 3 merely postponed discussion of other issues until disposition of the major issue separating the parties, upon which negotiations had temporarily hit a snag. And in the United States Cold Storage case, supra, the Board, basing its order to bargain upon the employer's refusal to meet during a strike, said, "What seemed a rigidity of bar- gaining positions before strike action, afterward might very well have become a model of flexible compromise." The circuit court, in enforcing the Board's order, agreed that an impasse, if any, had been broken by the strike itself. Accord- ingly, we find, like the Trial Examiner, that the Respondent violated Section 8 (a) (5) and (1) of the Act. 2. For the reasons set forth in the Intermediate Report, we agree with the Trial Examiner that Herschel Sollman was discharged for sleeping on the job and not because of his union activities. However, unlike the Trial Examiner, we reach the same conclusion as to Henry Chandler, and shall also dismiss the complaint as to him. According to the testimony of Superintendent Fuller, at 3 o'clock in the morning of February 8, 1952, he received a telephone call at his home from an unknown truckdriver, who complained that he was unable to find any employees at the plant to sign a receipt for a load of oil. Fuller then called the 313 NLRB 917 (1939). R. J. OIL & REFINING CO., INC. 645 refinery twice but no one answered , despite the fact that the telephone was connected to a large clanging bell out in the open. Working at the refinery at that time (on the 11 p. m. to the 7. a. m. shift ) were Sollman , the pumper ; Chandler, the still operator ; and Ferguson , the boiler fireman. Fuller, gravely concerned, then called Office Manager Rebone, picked him up at his home a half mile away, and drove to the refinery 31- miles away , arriving at 3:15 or 3:20 a. m. - 20 minutes later. Fuller and Rebone, according to their mutually cor- roborative testimony , looked through the window of the dressing room and saw Sollman stretched out on the bench asleep. They heard him snoring. They walked about 50 feet to the control room, where they found Chandler asleep in a chair in front of the control board. They checked the board and determined that there was no emergency. They did not stop to awaken Chandler , but went at once to the boilerroom, and determined that there was no emergency there. Unlike Sollman and Chandler , Ferguson was awake and was reading a magazine. Fuller ordered Ferguson to awaken Chandler in the control room vile he, with Rebone, went to the dressing room, put on the lights, and shouted "Get up, Soll." Fuller and Rebone then completed a quick trip around the refinery, and left when they found everything in good order and saw Sollman and Chandler up and around. Verner Ferguson , a disinterested witness, testified that Fuller, after calling him out of the boilerroom, told him that "Soil is here asleep and Chandler is in the control room asleep. Go wake up Chandler." Ferguson added that instead of doing so immediately, he first checked the boilers because he "didn't want to see anything" and wanted to "give them a chance"; that 3 or 4 minutes later, he went to the control room and told Chandler, who was then awake, that Fuller had ordered Ferguson to awaken him. Chandler testified as follows : "I was doing my regular tour of duty, and about three-twenty that morning Vernor Ferguson came to the control room where I was, and wanted to know if I saw Mr. Fuller out there, and I said no, I didn't. He said 'Well, they [Fuller and Rebone] came over to the boiler house and told me to go over and wake you up' . I said well, I didn't see them, I didn't know they were out there, so I went ahead with the work until about seven o'clock that morning." When Chandler finished work, Fuller called him to his office and discharged him for being asleep on the job. At that time, according to Fuller, Chandler admitted dozing. According to Chandler, however, he replied that he had not been asleep. We agree with the Trial Examiner that the issue as to Chandler's discharge is one of credibility and that the reso- lution of credibility depends not so much on Chandler's as on Fuller's testimony. However, unlike the Trial Examiner, we see no reason to discredit Fuller ' s testimony that he and Rebone found Chandler asleep at his post, or to resolve credi- 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bility in favor of Chandler . In discrediting Fuller , the Trial Examiner relied in part upon Fuller ' s penchant for having witnesses to actions he felt compelled to take against employees under his supervision for derelictions of duty, and upon his failure to awaken Chandler immediately . We do not deem these reasons sufficient to discredit Fuller ' s testimony that Chandler was asleep . A penchant for having witnesses does not neces- sarily indicate that Fuller was not credible , but rather that he was cautious and careful . Further , the fact that Rebone corroborated him strengthens Fuller ' s testimony . Nor do we believe that Fuller acted unreasonably in first checking on the safety of the refinery , before awakening Chandler. On the contrary , it seems to us that, as safety was of immediate concern, prudence and good judgment would dictate that Fuller check on refinery operations in the first instance before stop- ping to awaken and perhaps disciplining Chandler - an action that could be taken at any time later . In fact , Fuller also acted in the same manner with respect to Sollman , who the Trial Examiner found was properly discharged at the same time as Chandler for having been asleep on the job . We also note that Fuller and Rebone left the refinery only after they had inspected the refinery and had observed Chandler and Sollman up and around . In these circumstances , we do not agree that Fuller ' s penchant for witnesses and his failure to awaken Chandler immediately afford a sufficient basis to discredit his and Rebone's testimony that they saw Chandler asleep. Moreover , the Trial Examiner ignores the fact that the testimony of Ferguson , and indeed of Chandler himself, tends to support the claim of Fuller and Rebone, that they found Chandler asleep on the job . 4 Ferguson admitted that Fuller told him that Chandler was asleep in the control room and instructed him to awaken Chandler. If Chandler had not, in fact , been found asleep by Fuller and Rebone , why would they have instructed Ferguson to awaken the sleeping Chandler? To disbelieve them, as the Trial Examiner would have us do, would require the unreasonable inference that Fuller and Rebone had fabricated their entire story out whole cloth. Such an inference we are not prepared to and cannot make. Further , it is significant that when Ferguson went to the control room and told Chandler about Fuller ' s instructions to awaken him, Chandler did not deny sleeping or make any reference thereto but only admitted that he had not seen Fuller. In our opinion, Chandler ' s failure to deny sleeping when talking to Ferguson and his admission that he had not seen Fuller are 4 The credited testimony of Sollman also tends to support the general credibility of Fuller and Rebone. Although the Trial Examiner credited Sollman's denial that he was asleep, he nevertheless found, upon Sollman's admission, that he was in a reclining position and that Fuller was justified in concluding that Sollman was asleep. R. J. OIL & REFINING CO., INC. 647 consistent with Fuller's story that Chandler was asleep in the control room. If Chandler had been awake and on his regular tour of duty, he certainly would have replied to Ferguson that he had not been sleeping , and he would have been aware of the presence of his superiors at the refinery as both Ferguson and Sollman were. Finally , it is highly unlikely that Fuller and Rebone would have inspected the refinery and spoken to Ferguson and Sollman without, at the same time , going into the control room to check upon Chandler , the only other employee on duty at the plant at that time. In these circumstances , and upon what we deem a clear preponderance of the evidence on the entire record , we reject the Trial Examiner's credibility resolution in favor of Chandler.5 We find that both Fuller and Rebone testified credibly; and that Chandler , like Sollman , was asleep on the job. Even assuming , as the Trial Examiner believed, that Fuller - when he left home in the middle of the night - hoped to discover a good reason to rid himself of union adherents, we are not prepared to say, in view of the clear and present danger resulting to the refinery from employees sleeping on the job, that Chandler' s and Sollman's sleeping was only a pretext for their discharges . On the contrary , the record clearly shows and we find that they were discharged for sleeping on the job, a ground that would warrant the discharge of any employee whether prounion or antiunion .6 Accordingly, we shall dismiss the complaint insofar as it alleges that the Respondent discrim - inated against Chandler and Sollman. 3. We find no evidentiary support for the Trial Examiner's finding that the strike of February 9, 1952 , was originally caused by unfair labor practices of the Respondent , but we do agree that it was converted into an unfair labor practice strike on March 21, 1952, when the Respondent unlawfully refused to meet with the Union. As the Trial Examiner reported , a strike vote was taken after the employees had considered the discharges of Sollman and Chandler and the breakdown of negotiations . Apparently on this fact alone, he concluded that the strike was caused by the Respondent ' s earlier improper conduct . However, the record shows clearly that the strike was precipitated only by the refusal of the Respondent to reemploy Sollman and Chandler, and not by any conduct of the Respondent which was violative of the Act. According to Hill , a credited witness , the employees voted to strike if the Union was unable to reach a "satisfactory agreement" with Respondent as to "taking the fellows [Chandler and Sollman] back." We have found , however , that the Re- spondent acted entirely within its rights in discharging Chandler 5 Standard Dry Wall Products Inc., 91 NLRB 544, enforced 188 F . 2d 363 (C. A. 3). 6 West Texas Utilities Company, Inc., 94 NLRB 1638, enforced 195 F . 2d 519 (C. A. 5); Lloyd A Fry Roofing Company, 84 NLRB 1222. 648 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD and Sollman. Accordingly,, as the strike of February 9, 1952, was originally caused by the failure to settle to the satisfaction of the Union the discharges of Sollman and Chandler, we find that it was economic in its inception. However, in accord with well-established precedent, we also find that the strike was prolonged, and thereby converted into an unfair labor practice strike, by the Respondent's refusal to meet with the Union on and after March 21, 1952, conduct which we have hereinabove found to violate Section 8 (a) (5) and (1) of the Act.7 4. Because it caused the concerted activities of the em- ployees to become an unfair labor practice strike on March 21, 1952, the Respondent at that time forfeited the right permanently to replace the strikers and came under an obligation to reinstate them to their former or substantially equivalent positions upon their unconditional request for reinstatement.' Like the Trial Examiner , we find that Ray Jacquemai, Joseph J. English, Richard Sloan, Robert Lee Roney, John Osborne, and Amos Hill were unfair labor practice strikers when they uncondi- tionally requested reinstatement on September 9, 1952. We further find that, at that time, the Respondent discriminatorily refused to reinstate them. Thereafter, at different times in November and December 1952, the Respondent offered to reinstate each of these employees to their former or substantially equivalent positions.' However, the Trial Examiner found that 2 of the 6 employees, Osborne and Hill, are now entitled to a further offer of reinstatement despite the previous offers made to them. We disagree . We find that the Respondent, by offering to reinstate Osborne to his former or substantially equivalent position, has fulfilled its legal obligation as to reinstatement and has, therefore, tolled its back-pay liability. Accordingly, contrary to the Trial Examiner, we find that Osborne is not entitled to a further offer of reinstatement and is entitled to back pay in the amount that he normally would have earned from September 9, 1952, only to December 18, 1952, the date of Respondent's offer of reinstatement. As to Hill, pursuant to Respondent's offer, he went back to work on November 20, 1952. Although not given his former position of operator, Hill was assigned to the maintenance crew with his full pay and seniority. Superintendent Fuller explained that this assignment was temporary until new work 7 Knickerbocker Plastic Co., Inc., 104 NLRB 514; Spitzer Motor Sales, Inc., 102 NLRB 437; N. L. R. B. v, Stilley Plywood Co., Inc., 199 F. 2d 319 (C. A. 4), enforcing as modified 94 NLRB 932. See Old Town Shoe Company, supra, where the economic strike was converted into an unfair labor practice strike by refusal to meet during the strike. 8Prior to March 21, the Respondent had the right to replace permanently any of the economic strikers in order to continue to operate its business. N L. R. B. v. Mackay Radio & Telegraph Co., 304 U. S. 333. Therefore, the Respondent is under no legal obligation to dismiss any such replacements in order to reinstate any strikers. 9Jacquemai, December 3, 1952; English, November 3, 1952; Sloan, November 23, 1952; Roney, November 12, 1952; Osborne, December 18, 1952; and Hill, November 20, 1952. R. J. OIL & REFINING CO., INC. 649 schedules could be figured out. Hill worked approximately 3 or 4 days and again asked Fuller for his old job. Fuller suggested that Hill continue the maintenance job and that, in the future, he would be placed in charge of some maintenance men. Fuller further stated that he could not return Hill to his old job at that time because the other employees would strike. Hill thought over Fuller' s suggestion for a day and then wrote the Respondent that he would not report back to work unless he were reinstated to his old position of operator. Hill has not worked for the Respondent since that time. The Trial Examiner found that the Respondent, by reemploy- ing Hill at a different and "less desirable" job, had not satisfied its legal obligation to fully reinstate Hill, and that it had not carried out its offer in good faith. Except for Hill's personal preferences, the record does not support the Trial Examiner's finding that the maintenance job was "less de- sirable." Under these circumstances, and upon the entire record, we find, contrary to the Trial Examiner, that the Respondent did carry out its offer in good faith and thus properly fulfilled its legal obligation to Hill. Accordingly, we shall not order Hill' s reinstatement and we shall toll his back pay on November 20, the day he returned to the Respond- ent's employ. As for Jacquemai, English, Sloan, and Roney, we agree with the Trial Examiner that they are not entitled to a further offer of reinstatement, and are entitled to back pay from September 9, 1952, only to the date of the Respondent's offer to each of them. 5. We agree with the Trial Examiner that the Respondent independently violated Section 8 (a) (1) of the Act. However, our agreement in this respect is limited to the December 1951 conversation between employee Herber Zimmerman, a union member, and Truck Foreman Robert Smith. 10 At that time, Smith told Zimmerman to tear up his union card and get out from under the Union. Smith then took his bill- fold out of his pocket, and with it in his hand, said "I am the fellow that could do you some good." We agree with the Trial Examiner that, by these statements of Foreman Smith, the Respondent violated Section 8 (a) (1) of the Act because they clearly carried with them apromise of benefit to Zimmer- man if he would abandon the Union. w We find that the conversation between Fuller and employee Joseph J. English, occurring sometime between April 6 and June 8, 1951, neither contained a threat of reprisal nor amounted to interrogation in violation of the Act. Further, we note that the conversation of January 1951 between Osborne and Truck Foreman Smith occurred more than 6 months before the filing of the original charge in this proceeding. In these circumstances, we reverse the Trial Examiner's findings of violations of Section 8 (a) (1) of the Act in these respects. Member Murdock, however, would affirm the 8 (a) (1) finding on Superintendent Fuller's statement to English, believing that an employer's statement that he knew who had voted for and against the Union in an election, and knew the employee voted for the Union, has a coercive effect, suggesting surveillance and implying reprisal. 650 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, as amended, the National Labor Relations Board hereby orders that the Re- spondent , R. J. Oil & Refining Co., Inc., Princeton , Indiana, its officers , agents, successors , and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Oil Workers Inter- national Union, CIO, as the exclusive representative of all the production and maintenance employees , including truckdrivers, employed at the Respondent ' s refinery at Princeton , Indiana, but excluding office and clerical employees , gaugers, pro- fessional employees , chemists, guards , the dispatcher, and other supervisors as defined in the Act. (b) Discouraging membership in Oil Workers International Union, CIO, or in any other labor organization of its employees, by refusing to reinstate to their former or substantially equivalent positions any of its employees , or in any other manner discriminating in regard to their hire or tenure of employment , or any term or condition of employment. (c) Performing or giving effect to its contract of June 14, 1952, with District 50, United Construction Workers of America, and its Local 13695, affiliated with United Mine Workers of America, or to any modification , extension , supplement, or renewal thereof or to any superseding agreement with said labor organizations affecting any of the aforesaid employees relating to grievances , labor disputes , wages, rates of pay, hours of employment , and other conditions of employment, unless and until said labor organizations shall have been certified by the Board. (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 , 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, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action , which the Board finds will effectuate the policies of the Act: (a) Upon request , bargain collectively with Oil Workers In- ternational Union , CIO, as the exclusive representative of the employees in the above described appropriate unit, and e mbody in a signed agreement any under- standing reached. (b) Make whole Ray Jacquemai, Joseph J. English , Richard Sloan, Robert Lee Roney, Amos Hill, and John Osborne for any loss of earnings they may have suffered by reason of the R. J. OIL & REFINING CO., INC. 651 Respondent's discrimination against them by the payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from September 9, 1952, until the date set opposite the name of them in the manner provided in section of the Intermediate Report entitled "The Remedy": Ray Jacquemai December 3, 1952 Joseph J. English November 3, 1952 Richard Sloan November 23, 1952 Robert Lee Roney November 12, 1952 John Osborne December 18, 1952 Amos Hill November 20, 1952 (c) Withdraw and withhold all recognition from District 50, United Construction Workers of America, and its Local 13695, affiliated with United Mine Workers of America, as the collective -bargaining representative of any of the employees in the aforesaid unit, unless and until certified by the Board. (d) Upon request make available to the National Labor Rela- tions Board or its agents, for examination or copying, all pay- roll records, social-security payment records, timecards, personnel records and reports, and all other records necessary for a determination of the amounts of back pay due under the terms of this Order.' (e) Post at its plant near Princeton, Indiana, copies of the notice attached hereto and marked "Appendix A."" Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being signed by Respondent's duly authorized representative, be posted by it immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the Ninth Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply therewith. IT IS FURTHER ORDERED that the complaint , insofar as it alleges that the Respondent has discriminated against Herschel Sollman, Billy Frank Scott, and Henry Chandler, be, and it hereby is, dismissed. Member Beeson took no part in the consideration of the above Decision and Order. n In the event this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of a United States Court of Appeals, Enforcing an Order." 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL bargain collectively , upon request, with Oil Workers International Union , CIO, as the exclusive representative of all employees in the bargaining unit described herein and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees including truckdrivers employed at our Princeton , Indiana, refinery , but excluding office and clerical employees, gaugers, professional employees , chemists, guards, the dispatcher , and supervisors as defined in the Act. WE WILL withdraw and withhold all recognition from District 50, United Construction Workers of America, and its Local 13695, affiliated with United Mine Workers of America, as the representative of any employees in the aforesaid unit, unless and until certified by the National Labor Relations Board. WE WILL cease performing or giving effect to our contract of June 14, 1952, with said labor organizations or to any modification, extension, supplement, or renewal thereof, or to any superseding agreement affecting any of our employees relating grievances , labor disputes, wages, rates of pay, hours of employment, or other con- ditions of employment, unless and until certified by the National Labor Relations Board. WE WILL make whole the following named employees for any loss of pay suffered as a result of discrimination against them: Ray Jacquemai Joseph J. English Richard Sloan Robert Lee Roney John Osborne Amos Hill WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of the R. J. OIL & REFINING CO., INC. 653 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 or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. All our employees are free to become or remain members of Oil Workers International Union, CIO, or any other labor organization . We will not discriminate in regard to hire or tenure of employment or any term or condition of employment because of membership in or activity on behalf of any labor organization. R. J. OIL & REFINING CO., INC., Employer. Dated ........... By ................ ... .... . (Representative ) (Title) This notice must remain posted for sixty ( 60) days from the date hereof, and must not be altered , defaced , or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon an original and amended charges filed by Oil Workers International Union, C. I. 0., herein called the Union, beginning on August 30. 1951, and orf various dates thereafter the General Counsel for the National Labor Relations Board, i by the Regional Director of the Ninth Region (Cincinnati, Ohio), issued a complaint and amended complaint dated August 15 and September 16, 1952, respectively, alleging that R. J. Oil & Refining Co., Inc., hereinafter called Respondent, had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (2), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), herein referred to as the Act. Copies of the complaints, the charges, and notices of hearing were duly served upon the Respondent, the Union, and District 50, United Construction Workers of America, and its Local 13695, affiliated with United Mine Workers of America, party to the contract, herein referred to as District 50. With respect to the unfair labor practices, the complaint as amended alleges in substance that the Respondent, commencing on or about April 23, 1951, and at all times thereafter, through and by its agents did refuse and fail and is now refusing and failing to bargain collectively with the Oil Workers, as the exclusive and certified bargaining representative of its employees in a unit found appropriate by the Board, by refusing to meet with the Oil Workers at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, although requested so to do by the Oil Workers, com- i The General Counsel and the staff attorney appearing for him at the hearing are herein referred to as the General Counsel; the National Labor Relations Board is referred to as the Board. 654 DECISIONS OF NATIONAL LABOR RELATIONS mencing on or about February 9, 1952 , and at all times thereafter , Respondent did refuse and fail and is now refusing and failing to bargain collectively with the Union , by refusing altogether to meet and bargain with the Union , although requested to do so; Respondent, by its officers , agents, representatives , and employees , more particularly by Henry P . Smith, Bob Smith , Joseph R. Fuller , Lloyd Manning, and other supervisory and managerial personnel, from on or about March 5, 1951, and continuing to date, committed , authorized , instigated, or acquiesced in certain acts and conduct , including but not limited to the following , to wit: (a) Interrogating employees as to their union affiliations , activities , or desires ; (b) threatening employees by advising them not to have any dealings with the Union in any way, shape , or form; (c) threatening to change working conditions in a manner inimical to the interests of the employees if the Union came into the Respondent 's refinery ; (d) granting a wage increase shortly prior to the April 1951 bargaining election , an object of which was to defeat the Union. Respondent discharged employees Henry Chandler and Herschel W. Sollman on February 9, 1952, and has since failed and refused to reinstate them because of their membership in, sympathy for, affiliation with , and activities on behalf of the Union , and for the purpose of discouraging membership in, sympathy for, affiliation with, and activity on behalf of the Union; commencing on or about June 1 , 1952 , and continuing thereafter until the present time, Respondent , through its officers , agents , and employees , interfered with , lent support to, assisted and directed the formation , organization , and administration of District 50 by, inter alia: (a) recognizing District 50 as the exclusive bargaining representative of its employees in the appropriate unit: (b) by entering into a contract with District 50, covering the hours , wages, and other terms and conditions of employment of the employees in the units found appropriate by the Board ; 3 and that on or about February 9, 1952, the employees of Respondent ceased work concertedly and went on strike, that said strike was caused and prolonged by the unfair labor practices of the Respondent described above; that on or about June 23 , 1952 , the employees named below terminated their strike , and on said date and continuously thereafter requested the Respondent to reinstate them and each of them to the positions held by each of them immediately prior to said strike or to positions substantially equivalent thereto: 4 Bobby Eckiss , JosephJ. English, James Hayes , Amos Hill, Ray Jacquemai, John Osborne , Robert Lee Roney , Billy Frank Scott, Richard Sloan ; on or about said date, June 23, 1952 , and at all times thereafter the Respondent has failed and refused to reinstate said employees , because of their membership in, sympathy for, and activity in behalf of the Union. By the totality of the acts described above the Respondent did interfere with, restrain, and coerce, and is interfering with, restraining , and coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act , and did thereby engage in and is thereby engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act, and hence violating Section 8 (a) (1), (2), (3), and(5) of the Act , and affecting commerce within the mean - ing of Section 2 (6) and (7) thereof. On or about August 20, 1952 , the Respondent filed an answer denying that it had engaged in any unfair labor practices. On or about August 20, 1952, District 50 filed an answer in which it admitted that it was a labor organization within the meaning of the Act , and stated that it was without "knowledge or data to form an opinion as to the various conclusions " alleged in all other branches of the complaint, except as to paragraph 12, thereof, which it specifically denied. Pursuant to notice a hearing was held at Princeton , Indiana, in the Gibson County Court House on December 16, 17, 18 , 19, 1952, before James A. Shaw, the undersigned Trial Examiner, duly designated by the Chief Trial Examiner . The General Counsel and the Respond- ent were represented by counsel and the charging Union by lay representatives . District 50, though it sent a representative to the hearing, did not choose to formally participate in the proceedings , fir reasons which will be discussed in detail hereinafter . The General Counsel and counsel for the Respondent participated in the hearing and were afforded full opportunity to be heard , to examine and cross -examine witnesses , and to introduce evidence bearing upon the issues. At the close of the General Counsel's case-in-chief, counsel for the Respondent moved to dismiss the complaint in its entirety ; the undersigned denied his motion without prejudice 2 The General Counsel moved to dismiss subparagraph (d) of paragraph 10 of the complaint at the hearing herein. The motion was granted by the undersigned. 3See infra. 4The General Counsel moved to dismiss the complaint as to Bobby Eckiss and James Hayes at the hearing herein. The motion was granted by the undersigned. R. J. OIL & REFINING CO., INC. 655 to renewing it at the close of the hearing. At the close of the hearing the General Counsel moved to conform the complaint to the proof as regards minor matters such as names, dates, and the like. The motion was granted by the undersigned without objection. Counsel for the Respondent also renewed his motion to dismiss the complaint; ruling thereon was reserved by the undersigned. It is now denied in part and allowed in part for reasons which will be shown hereinafter. The parties though given an opportunity to do so declined oral argument to the undersigned on the issues involved. The parties were then advised by the undersigned of their right to file proposed findings of fact and conclusions of law as regards the issues involved and to file briefs in support thereof. Thereafter, the undersigned received briefs from all the parties on various dates between the time granted for that purpose at the hearing and February 13, 1953.5 Among the documents received from the parties was a memorandum from District 50, which in substance was a brief in support of a plea by it to reopen the record in this proceed- ing for the purpose of permitting Frank Barnhart, its regional director to testify as regards District 50's role in the events with which we are concerned herein, and the circumstances surrounding the execution of its contract with theRespondent as the bargaining representative of the Respondent's employees. At first blush the undersigned was convinced that the memoran- dum brief raised no new or novel issue that was not thoroughly litigated and discussed at the original hearing. However, after a close and careful perusal and analysis of the entire record in the case including the briefs of the parties, he reached the conclusion that it would be in the public interest to reopen the record and thus permit District 50 to enter a formal appear- ance in the case and place upon the record the testimony of Frank Barnhart, its regional director, together with any documentary evidence it might desire to offer in support of its position. Having thus determined, the undersigned ordered the record reopened for the sole purpose of taking the testimony of Frank Barnhart in this regard. Consequently he did so and - record - record ecord was reopened and a hearing had on the issues described immediately above at Terra Haute, Indiana, on May 6, 1953. All parties appeared and were represented by counsel. In passing the undersigned desires to point out the fact that at the time of the original hearing Frank Barnhart was a very sick man. There is no question about that. As a matter of fact in the course of his testimony before the undersigned on May 6, 1953, he stated that he had only been up and about for about a week at that time. At the reopened hearing counsel for District 50 requested permission to offer the testimony of several of the then employees of the Respondent as regards their selection of District 50 as their bargaining agent, and their reason for abandoning the Union herein and joing District 50. The undersigned denied counsel's request in this regard, primarily for three reasons: (1) any testimony they might offer would be irrelevant and immaterial to the legal issues involved herein; (2) the record was reopened for the "sole purpose" of taking Frank Barnhart's testimony, and the parties were so advised at the time the undersigned ordered the record reopened; and (3) District 50 was at no time precluded from entering a formal appearance at the original hearing, in fact it chose to do otherwise at that time, though given ample opportunity by the undersigned to do so, as the record itself shows. Surely there must be an end to litigation sometime, consequently hearings cannot be had here, there, and everywhere ad infinitum to meet the whims and caprice of the parties. It is not only impractical, but where as here an opportunity to be heard as to all matters except as regards Barnhart's testimony, was given and rejected, then the rule of reason must prevail. As indicated above, counsel for the Respondent and District 50 have taken exception to the undersigned's ruling at the reopened hearing in denying them the right to call and examine the then employees of the Respondent as to why they left the Union herein and joined District 50. Counsel for the Respondent in his briefs and on the record complains that the undersigned's remarks as regards the position of Batey at the original hearing and his subsequent ruling as regards the calling of the said employees as witnesses in this proceeding denied the Respond- ent a fair hearing. Counsel takes the position that Batey was not acquainted with the circum- stances surrounding the execution of the contract between District 50 and the Respondent, and that Barnhart alone was the person who knew all the facts, that Batey was nothing more than a "messenger boy," and consequently was in no position to either enter a formal appearance at the original hearing or to testify concerning the events leading up to the execu- tion of the contract between District 50 and the Respondent. As indicated above, the under- signed gave all these objections careful consideration and it was for precisely these reasons that he reopened the hearing on May 6, 1953. to take the testimony of Frank Barnhart as 5See infra. 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD regards the matters raised by counsel for the Respondent in his brief. In the considered opinion of the undersigned, the record as a whole, and in particular the testimony adduced at the reopened hearing, refute the contention of counsel as regards Batey. The transcript of the record taken at the reopened hearing clearly show that Batey was in possession not only of all the facts surrounding the execution of the contract between District 50 and the Respondent but far more familiar with District 50's role in the events with which we are concerned herein than Barnhart. The entire record clearly shows without contradiction of any kind that Batey was an organizer for District 50 and was the first person connected with that organization to discuss affiliation with it with the Respondent's employees. Thereafter, he secured their signatures on application-for-membership cards, arranged meetings with Barnhart, attended the bargaining negotiations with the Respondent, and lastly and of far greater significance is the fact that he is a signator of the contract at issue herein. These facts have convinced the undersigned that Batey was no mere "messenger boy" and was not only competent to testify regarding these matters at the original hearing but well able to have entered an appearance and participate therein in December 1952. At the close of the reopened hearing on May 6, 1953, the undersigned extended to all parties the right to file supplemental briefs with the undersigned in support of their respective positions as regards the matters that were brought out and litigated at that time. Briefs have been received from counsel for the Respondent and District 50,6 At the close of the reopened hearing counsel for District 50 moved to dismiss the complaint insofar as District 50 is concerned in the issues raised therein. The undersigned reserved ruling thereon. It is hereby denied for reasons which will be apparent hereinafter. Counsel for the Respondent likewise moved to dismiss the complaint in its entirety. Ruling was likewise reserved on his motion. It is hereby denied in part and granted in part for reasons which will be shown hereinafter. 7 Upon the entire record in the case, and from his observation of the witnesses, the under- signed makes the following: FINDINGS OF FACT 1. The Business of the Respondent The parties stipulated that the R. J, Oil & Refining Co., Inc., is an Indiana corporation with its principal office in Terre Haute, Indiana, and operates its sole refinery at a place near Princeton, Indiana, where it is engaged in the refining and distribution of gasoline, kerosine, and pure oils. During a representative period it purchased annually petroleum products in excess of $ 750,000, of which approximately 5 percent was brought into the State of Indiana from points outside of said State. During the same representative period its sales were in excess of $ 750,000 per year, of which approximately 10 percent was sold to customers outside the State of Indiana. The Respondent concedes, the parties have stipulated, and the undersigned finds that the R. J. Oil & Refining Co., Inc ., the Respondent herein , is engaged in commerce within the meaning of the Act. II. The Labor Organizations Involved Upon the entire record in the case the undersigned finds that Oil Workers International Union, CIO, and District 50, United Construction Workers of America, and its Local 13695, 6A supplemental brief was received from counsel for the Respondent on May 25, 1953, and from counsel for District 50 on May 26, 1953. Both have been carefully considered by the undersigned. 7 Motions to correct the record have been received from counsel since the close of the reopened hearing--they are disposed of below. (1) On May 22, 1953, counsel for District 50 filed inter alia a motion to correct the tran- script of the record at page 711, lines 13 and 21. Thereafter the General Counsel filed a motion in opposition to said motion on May 29, 1953. The undersigned has considered both motions. His impression of the testimony of the witness Barnhart is contrary to that of counsel for District 50. Consequently, the motion of District 50 to correct the record is denied. The motion of the General Counsel is granted. (2) On May 23, 1953, counsel for the Respondent filed a motion with the undersigned to correct the record at JR-756, line 13 to read from "Friday June 18, 1951," to read "Fri- day June 8, 1951." His motion is well taken and is hereby granted by the undersigned, who ordered that the record be corrected accordingly. R. J. OIL & REFINING CO., INC. 657 affiliated with United Mine Workers of America, are labor organizations within the meaning of Section 2 (5) of the Act. III. The Unfair Labor Practices A. The alleged refusal to bargain 1. Sequence of events Sometime in 1948, the Respondent started production at its refinery, which is located approximately 4 miles from the city of Princeton, Gibson County, Indiana, a typical mid- western county seat town. Its population at the time the events herein occurred was around 10,000. Gibson County is located in the western part of the State and its western boundary is the Wabash River. Nearby is Vincennes, Indiana, about 40 miles to the north. Across the Wabash River, and about 35 miles from Princeton, is Lawrenceville, Illinois. Lawrenceville is a well-known oil center, and 1 of its principal industries is the "Texaco" refinery, which employs between 700 and 800 people. In the area, that is in both Indiana and Illinois, there is a considerable amount of coal produced, Terre Haute being the center of that industry. This is indicated not only by the record herein, but it is a matter of common knowledge. At this city, District 50 and its parent organization maintain their offices. Here likewise are located the offices and principal place of business of the Respondent s and its president, Henry P. Smith. The record shows that Henry P. Smith is interested in a number of enterprises, particularly in the production and refining of petroleum and the mining of bituminus coal, in both Indiana and Illinois. In October 1950, Roy N. Freeman, international representative of the Union, went to Fort Branch, Indiana, 9 and contacted employees of the Respondent for the purpose of persuading them to join the Union. The first employee of the Respondent he contacted was Herschel Sollman, of whom more anon hereinafter. Subsequently, he gave Sollman application-for- membership cards in the Union, and persuaded him to assist in the Union's organizational drive amongst the Respondent's employees. Sollman took the cards and from that time on engaged in organizational work amongst the Respondent's employees. The first employee that he contacted in his organizational activities was Henry Chandler, of whom likewise more anon. Sollman and Chandler were successful in their efforts and as a result the Union was designated as the collective-bargaining representative of the Respondent's employees. On November 13, 1950, the Union filed apetition for certification of representatives, pursuant to the provisions of Section 9 (a) and (c) of the Act. In its petition the Union contended that "all production and maintenance employees of the Company's refinery at Princeton, Indiana, excluding supervisory, office and clerical employees, plant guards and technicians and professional employees" constituted a unit appropriate for thepurposes of collective bargain- ing. Also in its petition the Union stated that there were 20 employees in the appropriate unit of which 12 had signified their intention of supporting the Union in its petition. In due course the Board held a hearing in R. J. Oil & Refining Co., Inc., Case No. 35-RC-463. At the hearing the Respondent, in substance, contended that the unit desired by the Union was inappropriate. Its contention being that all employees at its refinery should be included in the unit, par- ticularly the truckdrivers, of whom more anon hereinafter. The Union resisted the Respond- ent's contention in this regard and protested the inclusion of the truckdrivers in the unit. In due course the Board issued its Direction of Election on March 8, 1951, in which it upheld the contention of the Respondent at the hearing, and included the truckdrivers in the unit which it found to be appropriate. Its finding was as follows: 4. The following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All production and maintenance employees, including truck drivers, employed at the Employer's Refinery at Princeton , Indiana, but excluding office and clerical employees , gaugers, professional employees , chemists , guards , the dispatcher and other supervisors as defined in the Act. 8 The record clearly shows that the books of the Respondent are kept at Smith's offices in Terre Haute, Indiana. 9 A small town of about 1,500 in Gibson County and a few miles south of Princeton. 339676 0 - 55 - 43 658 DEGJSIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the Board's "Direction of Election", the Regional Director of the Ninth Region [Cincinnati, Ohio] conducted an election amongst the Respondent's employees in the above found appropriate Unit on or about April 6, 1952. TALLY OF BALLOTS The undersigned agent of the Regional Director certifies that the results of the tabula- tion of ballots cast in the election held in the above case, and concluded on the date indicated above , were as follows: 1. Approximate number of eligible voters .................................................. 28 2. Void Ballots ...................................................................................... 0 3. Votes cast for OIL WORKERS INTERNATIONAL UNION, CIO .................... 18 4. Votes cast for ................................................................................ 5. Votes cast for ....................... .................. ................................. 6. Votes cast against participating labor organization(s) .............................. 7. Valid votes counted (sum of 3, 4, 5, and 6) .............................................. 8. Challenged ballots .............................................................................. 9. Valid votes counted plus challenged ballots (sum of 7 and 8) ...................... 10. Challenged are (not sufficient in number to affect the results of the election. 11. A majority of the valid votes has been cast for ........................................ OIL WORKERS INTERNATIONAL UNION, CIO The Petitioner would exclude the truck-drivers from the unit, whereas the Employer would include them. The truck-drivers are engaged primarily in driving the Employer's oil trucks, hauling crude oil to the refinery and delivering refined products to distribution points for sale to consumers. When necessary, they assist the pumpers at the refinery in loading the trucks. The record shows that many of the conditions of employment of the truck-drivers are similar to those of the production and maintenance employees. They receive the same vacation, holiday, and hospitalization benefits as other employees, and like other employees are on a 24 hour duty call. work rotating weekly schedules which include Saturdays and Sundays, and are paid bi-weekly on an hourly rated basis. Under these circumstances , and as no other labor organization seeks to represent the truck- drivers, we shall include them in the unit. On April 16, 1951, the Board certified the Union as the "exclusive representative of all the employees " in the above unit found appropriate by the Board in Case No. 35-RC-463. Upon all of the foregoing the undersigned finds that the appropriate unit herein is the same as the Board found in Case No. 35-RC-463. 2. The allegations with respect to interference, restraint, and coercion10 In his complaint the General Counsel alleges that certain statements and conduct of the Respondent by and through its supervisory employees constituted, if standing alone, independent violations of Section 8 (a) (1) of the Act. As shown above the Board conducted an election amongst the Respondent's employees in April 1951. According to Clem Reinhart, an employee of the Respondent at all times material herein, he had a conversation with Superintendent Fuller shortly before the election in which Fuller said ". . . we ought to think of the advantages we have now and maybe the disadvantages you would have if you had a union." The General Counsel contends that this statement of Fuller was in and of itself violative of Section 8 (a) (1) of the Act. The undersigned does not agree. Though vaguely suggestive of retaliation by the Respondent against its employees in the event they selected the Union as their exclusive bargaining representative, the undersigned is convinced that on the other hand just as much could be said that it was merely an expression of Fuller's opinion. Under such circumstances the undersigned finds that Fuller's remarks were within the purview of Section 8 (c) of the Act and hence privileged. ID The undersigned recognizes that this report does not follow the usual pattern, but he considers this factor of no importance because he has attempted to assemble it so that it will present the picture as the events with which we are concerned developed. R. J. OIL & REFINING CO., INC. 659 Joseph J. English, an employee of the Respondent at all times material herein, testified concerning two conversations he had with Superintendent Fuller about the Union, one was before the election in April 1952, and the second shortly thereafter. The first conversation took place in Fuller 's office. In the conversation Fuller asked English what he expected to gain by having a union in the refinery , and then went on to tell English about the Respondent's plans to enlarge its refinery which in turn would create better jobs for those then employed. Other than these remarks the conversation was about things in general and did not concern the Union or the coming election. However, when English started to leave the office, Fuller said to him that he would be ". . . doing him a personal favor if I voted against the Union." True, the above conversation contains a veiled promise of benefits to the employees in the future. But as the testimony concerning it stands in the record, the undersigned is not convinced that these remarks of Fuller's are violative of the Act for the same reasons that he found above that the remarks to Reinhart were not, if anything they were only suggestive , and would require the drawing of innumerable inferences to bring them within the purview of the Act. Nor does the undersigned consider Fuller's solicitation of an unfavorable vote against the Union as an independent violation of Section 8 (a) (1) of the Act. As the undersigned sees it it was nothing more than an expression of personal opinion , and perhaps "wishful thinking" on the part of Fuller, but since it carried with it no promise of benefit or threat of reprisal the undersigned finds that it was a privileged remark. In the considered opinion of the under- signed remarks of the type described above though trivial, nevertheless tend to show the general attitude of the Respondent towards the concerted activities of its employees, but surely they are not serious enough to predicate a finding that they were independently violative of Section 8 (a) (1) of the Act. English's testimony as regards a second conversation with Fuller is of a far more serious nature. It occurred sometime between the election ordered by the Board in Case No. 35-RC-463 and the authorization for a union-shop election in June 1952 . In this conversation Fuller told English that he knew who voted for and against the Union in the representation election, and that heknewthat he (English) had voted for the Union. English disputed Fuller's statement and pointed out that since the vote was by secret ballot it was impossible for him to have such knowledge. However, English admitted to Fuller that he voted for the Union. Fuller denied English's testimony as regards the above conversation in toto. For reasons which will be thoroughly discussed • hereinafter, the undersigned discredits Fuller's denial and credits English's testimony as regards the above incident in its entirety. In the considered opinion of the undersigned , Fuller's remarks constitute a flagrant viola- tion of the Act. In the first place they were made shortly before a Board election, and clearly conveyed the inference that the Respondent by some means had a way to secure information as to how the employees voted. They suggested tampering with the ballot box in an election conducted by a Government agency. This is a very serious suggestion to "plant " in the minds of employees on the eve of an election, which they have every reason to believe would be conducted in a legal and honest manner. Particularly since over the years of the Board's existence there has been little, If any, criticism of its conduct of elections. Such remarks could not help but sow distrust in the minds of the Respondent's employees and it takes little imagination to realize that it was, to say the least, more than a veiled threat of reprisal if the employees exercised their statutory right to vote in a Board-conducted election. In addition it amounted to the interrogation of English as to how he voted in the election. Without more ado the undersigned finds that Fuller's remarks to English as described above consti- tuted interference with, restraint, and coercion of its employees in the exercise of the rights guaranteed them in Section 7 of the Act, and is thus violative of Section 8 (a) (1) of the Act. Herbert Zimmerman, a truckdriver for the Respondent at all times material herein, testified that sometime in December 1951 he had a conversation with Robert "Bob" Smith, supervisor in charge of the truckdrivers and a son of Henry P. Smith, the Respondent's president, as regards taking one of the trucks out on a run over to Bloomington , Indiana. Shortly before this conversation occurred, a grievance had developed between one of the drivers and management. There had been some talk of a walkout by the truckdrivers, but nothing came of it and as far as the record herein is concerned the grievance was finally disposed of. In any event at the time Smith and Zimmerman had their conversation there was still a little uncertainty as to whether the truckdrivers would take their trucks out. As the undersigned understands the record it was during the period of the dispute between the Respondent and the truckdrivers that Zimmerman along with other truckdrivers joined the Union. His conversation with Smith took place the day after he joined the Union. Smith asked Zimmerman if he was ready and willing to take a truck to Bloomington , Indiana, and 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he told him he was. Zimmerman then asked what about the other truckdrivers and Smith said they were not there yet. In the ensuing conversation Zimmerman told Smith he had joined the Union the night before. Smith told him to get out from under the "Union," tear up your card, and then took his billfold from his pocket and with this in his hand said, "I am the fellow that can do you some good ." A few days later Zimmerman was discharged by Smith for the alleged violation of one of the Respondent 's rules. Smith did not appear and testify at the hearing herein for reasons which have been set forth above. However , counsel stipulated at the hearing that if he had appeared and testified before the undersigned he would have denied not only the testimony of Zimmerman but that of other witnesses called by the General Counsel as well. The undersigned saw Zimmerman, who impressed him as an honest and forthright witness . Accordingly, the undersigned finds that Robert Smith made the remarks attributed to him by Zimmerman . In passing, the undersigned desires to state that he is not unmindful of Zimmerman 's apparent animus towards smith as an individual. This fact has been considered , and has carried no more weight with the under- signed in his appraisal of Zimmerman as a witness than did the fact that at the time he appeared before him he was garbed in the uniform of assistant chief of police of the city of Princeton, Indiana, clearly a position of responsibility. His appraisal of Zimmerman is based strictly upon the impression he made, the manner in which he testified, and upon the entire record when considered as a whole. Upon all of the foregoing the undersigned finds that the statements of Robert Smith to Herbert Zimmerman were independently violative of Section 8 (a) (1) of the Act in that they clearly carried with them a promise of benefit to Zimmerman if he abandoned the Union. John Osborne, an employee of the Respondent at all times material herein, testified that shortly after he went to work for the Respondent in January 1951 he had a conversation with Robert "Bob" Smith, supervisor, over the truckdrivers and the garage employees in which Smith asked him if he had joined the Union. He admitted that he had, and Smith told him that he could use his own judgment and that the Union might do him some good and then it might not. Smith as indicated above did not appear at the hearing herein. His denial by way of stipulation of the parties to the effect that if he were present he would deny the testimony of Osborne is not credited . Osborne impressed the undersigned as an honest and forthright witness. Accordingly , the undersigned credits his testimony as regards the above conversation and discredits the denial of Smith. Interrogation of employees as regards their union affiliation has long been held violative of the Act. Consequently the undersigned finds that Smith's interrogation of Osborne in this regard constituted interference with , restraint, and coercion of the rights guaranteed employees in Section 7 of the Act, and is independently violative of Section 8 (a) (1) thereof. Though there may be and probably are other incidents of independent violations of Section 8 (a) (1) of the Act in the record, the undersigned deems it unnecessary to further burden this report with their inclusion." Such as for example, the conversation between Lloyd Manning and Robert Lee Roney. The undersigned has weighed this incident and finds that it amounted in the final analysis to be nothing more than an expression of opinion by Manning. Though it might possibly be an independent violation of the Act, the undersigned feels that enough has been said above and will be said below concerning the Respondent's conduct to fully sub- stantiate in the main the allegations in the complaint. As the undersigned sees it, the remarks of Judge Hastie speaking for the Third Circuit Court of Appeals in the Jarka case as regards the insistence of the General Counsel in his argument before that court to make additional findings of violations of 8 (b) (1) of the Act are applicable here. There the court said, inter alia, ". . . We understand that the Board would like to have two strings to its bow. But we have tested the one and found it strong and entirely adequate. That we think, is enough for this case . . . . " 2 So it is here . Consequently , the undersigned finds that upon all of the foregoing and the record considered as a whole, the Respondent herein by the independent acts of its supervisory employees described above interfered with, restrained , and coerced its employees in the exerciseof the rights guaranteed them in Section 7 of the Act, and thereby independently violated Section 8 (a) (1) thereof. a See the Board's comment in Diamond Hosiery Corporation, 105 NLRB 532. N. L. R. B. v, Jarka Corporation of Philadelphia, et al., 198 F. 2d 618 (C. A 3), en- forcing in part 94 NLRB 320. R. J. OIL & REFINING CO., INC. 661 3. The bargaining negotiations The undersigned is convinced that before any proper understanding of the issues may be had it is advisable to set forth herein at this time a bit of the background of the individuals who participated in the negotiations between the parties , and their peculiar interest if any in the issues involved as disclosed by the record and as expressed by the demeanor of those who appeared and testified at the hearing herein. This is so because the success or failure of collective-bargaining negotiations quite often depends so much on the personalities of those engaged in such matters . To begin with let us look at the hierarchy of the Respondent's management at the time the events herein occurred. As indicated above the Respondent's president is, and was at all times material herein , Henry P . Smith. In active charge of the plant was Superintendent Joseph F. Fuller, under his supervision inter alia were the following, Assistant Superintendent Thomas Stallings ; Lloyd Manning, dispatcher ; and Joseph Rebone, office manager. Fuller and Manning appeared at the hearing herein and testified . In addition the record shows that one Robert "Bob" Smith, a son of Henry P. Smith , was also employed by the Respondent as truckdriver foreman at all times material herein . Neither Robert Smith nor Henry P. Smith chose to testify at the hearing herein . A statement made to the record by the Respondent's counsel indicates that at the time the hearing was in session that both of these gentlemen were engaged in more important affairs elsewhere and could not appear, this was particularly true as regards Henry P. Smith , whom the record clearly shows is interested in many ventures other than the operation of the Respondent 's refinery which is involved in this proceeding. The Union 's representatives at the bargaining sessions changed from time to time but for the most part the same individuals were participants . In order to understand the Union's selection of committeemen, it is necessary to point out that Local No. 368 to which the Respondent's employees were assigned by the International Union maintains its offices in Lawrenceville , Illinois , since most of its members are employees of the Texas Company and work in its refinery there. For this reason Hubert Burden , secretary-treasurer of Local No. 368, participated in the meetings between the Respondent and the Union . Appearing for the International at most of the meetings was Roy N . Freeman , district director of the International Union . Also participating at one of the meetings , and a very important meeting as the events hereinafter described will show, was A. David Herring of Hammond , Indiana, financial and corresponding secretary of Local 210, and at the time on leave of absence from his regular employment at the Sinclair Refining Company. It might be well atthis timetopomt out that since so few were employed at the Respondent's refinery the International felt that it would be better for all concerned to have its members employed there in Local 368, which as indicated above was located at Lawrenceville . Illinois, about 35 miles away. The record shows that while there were no serious differences between the members of the Union at theRespondent 's plant and those employed by the Texas Company in Lawrenceville, nevertheless the establishment of a separate local was discussed among those members employed at the Respondent's plant, but nothing of material importance came of such discussion , except that the employees of the Respondent did find it necessary and convenient to organize into a separate entity for the purpose of handling their day -to-day affairs with the Respondent. Heading this group, or the chairman so to speak , was Henry Chandler , of whom more anon hereinafter . The record shows that the following employees of the Respondent participated in the negotiating meetings: Lloyd Manning , Amos Hill, Henry Chandler, John English , and Herschel Sollman. Manning attended at least the first meeting and possibly others as a representative of the Union ; later he was promoted to a super- visory position by the Respondent in September 1951 . For the most part the meetings were held at the Emerson Hotel in Princeton , Indiana. Shortly after the Union was certified by the Board on April 16 , 1951 , Hubert Burden, secretary -treasurer of Local 368, wrote the Respondent and requested a meeting with repre- sentatives of the Respondent for the purpose of negotiating a collective -bargaining agreement and enclosed with the letter a proposed draft of such an agreement . After some little delay the first meeting between the parties was held on May 16, 1951. Between May 16, 1951 , and February 16, 1952, the parties met six times . 13 As the under- signed sees it there is little conflict in the testimony of the witnesses called by the General isIt was stipulated at the hearing herein that formal bargaining meetings between the parties were held on May 16, June 4, July 11 , October 2, 1951, and January 18 and February 5, 1952. 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel in support of his allegation as regards the Respondent's refusal and failure to bargain with the Union in good faith. Consequently, the foregoing findings in this respect are in reality a composite or summation of the testimony of all the General Counsel's witnesses in this regard. The principal witnesses called by the General Counsel were as follows: as repre- sentatives of the International Union and Local 368, Roy Freeman, Hubert Burden, and David Herring, and for the local group at the Respondent's refinery, Henry Chandler, Herschel Sollman, and Amos Hill. At the first, meeting the Union's representatives were John English, Lloyd Manning, and Amos Hill. The Respondent was represented by Superuitendent Fuller and Henry P. Smith, its president. At the meeting the Union's representatives presented to the Respondent a proposed contract. As the undersigned sees it, there was little controversy between the parties at the meeting. They went over the proposed contract and discussed among themselves the many provisions proposed by the Union. Among them was article 2, section 1, which provided for a union shop. All of the witnesses who appeared at the hearing herein on behalf of the General Counsel in support of his case testified that the representatives of the Respondent agreed to this provision at this meeting. Other matters upon which the Respondent agreed at this meeting were as follows: sections I and III of article XII, which provided in substance payment to members of the Union's grievance committee for time lost from work for the purpose of meeting with the Respondent on questions concerning grievances that might arise during the life of the contract, and the "check-off" of union dues, etc. During the course of the meeting President Smith informed the Union's representatives that he would not at that time discuss "money-matters," that is wages . The Union did not press the issue and it was set aside for discussion at a later date. From what the undersigned can glean from the record the meeting was conducted in a friendly atmosphere and closed with all parties desirous of meeting again on May 28, 1951. In the interim circumstances beyond the Respondent's control caused it to request the Union for a postponement of the meeting scheduled for May 28, 1951, and suggested in a letter from Fuller to the Union dated May 18, 1951, that the next meeting be held on June 13, 1951. This was satisfactory to the Union. In the meantime, however, circumstances changed and the date for the second meeting was changed to June 4, 1951. The parties met as scheduled on June 4, 1951, at the Emerson Hotel, in Princeton, Indiana. They were represented by the same individuals as at their first meeting on May 16, 1951. At this meeting the Respondent, speaking through President Smith, repudiated many of the Union's proposals to which it had previously agreed, such as a union-shop provision >n the proposed contract, and stated in substance that it would never agree to such a provision in a contract with the Union. While Smith did not agree to grant a "check-off" of union dues, he did not irrevocably reject the Union's proposal in this regard. When reminded by one of the union negotiators that he had agreed to and in fact was then under contractual obligation with the United Mine Workers of America and the "Machinists" Union as regards the "check- off" of union dues at other of his enterprises, he replied that in such instances he had no choice in the matter and that such provisions had been forced upon him by the unions involved, that is it had been put up to him on a "that or else" basis. Other matters repudiated by Smith were payment for time lost by members of the grievance committee while attending grievance meetings, and the "check-off" of union dues. As regards "money-matters" or wages, Smith again refused to discuss them. In addition to the foregoing, Smith'also denied that he agreed to the Union's proposal as regards "arbitration" of disputes at the first meeting. As indicated above, Smith refused to discuss "money-matters" at both the first and second meetings. He did however suggest to the Union that it send Freeman, the Union's International representative in attendance at the meetings, to his offices in Terre Haute, Indiana, to ex- amine the books of the Respondent, which he contended would confirm his statement that the Respondent's financial condition was such that it was unable to grant any increase in wages. Smith conditioned his offer by stating that Freeman alone would be permitted to examine the books, and refused to permit him to bring an auditor with him to do the actual figuring of the Respondent's earnings. Since Freeman was not an accountant the offer was unacceptable to the Union for the simple reason that for Freeman to do the inspecting alone would be futile and accomplish nothing. From what the undersigned can glean from the record the parties were in agreement as regards several of the Union's proposals as a result of the meetings, as regards seniority, particularly as to the method of computing an employee's standing on the list and separate lists as regards seniority for the truckdrivers and the refinery workers, overtime pay, that is 12' times for work over 8 hours, but only in the event the total amounted to more than 40 R. J. OIL & REFINING CO., INC. 663 hours per week. Other items were discussed pro and con and where there was either disagree- ment or refusal to discuss at the time by the Respondent they were marked "open" by the Union on its working copy of its proposed contract and passed by for discussion at later meetings. At this time the undersigned is convinced that certain factual matters as regards a union- shop authorization election should be set forth herein, primarily because there was so much discussion about the "Union Shop" at the bargaining negotiations, and secondly because upon this issue much of the undersigned's ultimate resolutions as regards the credibility of certain of the witnesses who testified in this proceeding is predicated. The record indicates that the parties had not only discussed the question regarding an election to permit the employees of the Respondent to express their desires as regards such a provision in the Union's proposed contract with the Respondent, but had actually entered into a consent-election agreement to assist them in an early determination of the question before the bargaining negotiations commenced on May 16, 1952. That this is so is evidenced by the following letter from the Board's offices in Indianapolis, Indiana, dated May 23, 1951, addressed to representatives of the Union and the Respondent: Re: R. J. Oil and Refining Co., Inc. Case No. 35-UA-1101 Gentlemen: Reference is made to my letter dated May 3, 1951 with which was enclosed a proposed Agreement for Consent Election in the above-entitled matter. Both parties have signed the Consent Agreement which has been approved. In accord- ance with the terms of the Agreement I am selecting Friday, June 8th, as the election date. The Union should notify us in writing as to the name of their election observer. Both parties should be certain that their observer appears at the poll on election day 15 minutes before the polls open at 7:00 A. M. I am requesting that the Employer forward a list of eligible employees within the next few days as of the pay period ending April 30, 1951. This list will be finally checked by the observers just before the polls open election day. Notices of Election will follow. Very truly yours, Robert Volger Officer in Charge The parties stipulated at the hearing herein that the consent-election agreement referred to in the above letter was executed sometime between May 3 and May 23, 1951. It was also stipulated that the following individuals signed the agreement for their respective principals. Signing for the Union were Roy N. Freeman, International representative, and for the Re- spondent, Henry P. Smith, its president. As a result of the consent-election agreement the Board conducted an election amongst the employees on June 8, 1951, for the determination of the question as to whether or not they desired the Union to negotiate for a union-shop clause in the proposed contract with the Respondent. The election results showed that a majority of the Respondent's employees in the appropriate unit approved the inclusion of a union-shop provision in the Union's contract with the Re- spondent. The third meeting between the parties was held on July 11, 1951. Sometime between the second and third meetings Freeman, the international representative of the Union, secured the services of a Mr. Allen, from the Federal Mediation and Conciliation Service, and he was in attendance at the third meeting. The principal subjects discussed at this meeting were wages, benefits, grievance procedure, and eventually the union shop was again brought into the discussion. As the undersigned sees it one of the principle issues discussed was "money- matters." Smith refused to agree to any of the Union's proposals in this regard. The dis- cussion as to "money-matters" ranged from pay to the members of the grievance committee while engaged in such business towage increases for the employees. The Respondent's position was that it could not at that time agree to any wage increase or to any of the Union's pro- 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD posals that involved the payment of money. Smith's position was that the refinery was losing money and that it was impossible for the Respondent to meet any of the Union's demands as regards any matter that would tend to increase the cost of production. With this in mind he again offered to show the books to Freeman, but to him alone and no one else. The Union re- jected his proposal in this regard for the same reasons that it had advanced at the meeting on June 4, 1951, that is that since Freeman was not an accountant it would be futile for him to examine the books and arrive at an intelligent opinion as regards the Respondent's ability to grant wage increases. It was at this meeting that Smith informed the union representatives that the Respondent planned to erect a new fractionating tower at the refinery at an early date. Smith told them in substance that the new tower would be larger than the one then in use, and that it should enable the Respondent to increase its production and thus increase its profits. He also told them that if production and profits increased as anticipated, then the Respondent would be in a position to pay the employees more money. In the course of the discussion about the erection of the new tower, Smith informed those present that it would be necessary to shut the refinery down for a week or so while the tower was being erected and new equipment installed. With this in mind Smith suggested to the union representatives that the parties postpone their meetings until after the new tower was erected and in operation. The union representatives, though they did not agree to an indefinite postponement of the bargaining negotiations, promised to take his proposition backtothe membership for their consideration. Shortly after this discussion the meeting broke up with no definite agreement as to when the parties would meet again. Up to this time the parties had met three times, May 16, June 4, and July 11, 1951. As the undersigned sees it the parties had discussed the entire union proposal and had reached agreement on several items, on others there was disagreement, some, such as the Union's request for a union shop and dues checkoff had been flatly rejected by the Respondent and on the question of "money-matters" there was no agreement whatsoever for the simple reason that Smith refused to discuss the question, giving as a reason for his position that since the refinery was not making any money it was impossible for the Respondent to make any con- cessions in this regard. Moreover, as pointed out above, he contemplated a change in the Respondent's operations, which as he explained to the union negotiators was expected to in- crease production and if and when this was an actuality he would then be in a position to intelli- gently discuss "money-matters." The Union during the course of the three meetings had suggested to the Respondent that they enter into contractual relations as regards the matters agreed upon, and leave the inclusion of the disputed issues to a later date. The Respondent speaking through Smith rejected the Union's proposal and advised the committee that it would only sign a complete contract, that is one that disposed of all the issues, particularly as regards "money-matters." It was in the light of such an atmosphere that the meeting of July 11 was brought to an end. Sometime after the meeting of July 11, the union committee reported to the membership the status of the negotiations as they then stood. From what the undersigned can glean from the record the membership of the Union was dissatisfied with the progress of the negotiations, and as a result decided to strike the plant as a means of securing a contract with the Re- spondent. The strike lasted from July 17 to July 27, 1951. During the course of the strike a committee from the Union consisting of Hill and Dodge went to a third party, one Neil, a salesman for the Respondent, and in effect requested him to act as an intermediary and con- vey to Smith the desire of the employees to meet with him and work out their differences and settle the strike. In the meantime the striking employees had prepared and signed a petition in which they agreed to call offthestrike and return to work. Whether or not the intermediary actually contacted Smith is not disclosed in the record. In any event shortly thereafter Fuller told Hill, who as indicated above was a member of the union committee, that Smith would not meet with representatives of the Union while they were on strike. About 2 days after Hill's conversation with Fuller, the Union abandoned the strike and the employees returned to work. After the strike was abandoned and the employees had returned to work, Freeman again sought the services of Federal Conciliator Allen and asked him to intercede on behalf of the Union with the Respondent, for the purpose of arranging a resumption of negotiations be- tween the parties. Allen did so. Thereafter, there was an exchange of correspondence between Freeman and Smith which the undersigned considers pertinent to the issues herein. For this reason he is convipced that it should be inserted herein. On August 10, 1951, Freeman wrote Smith as follows: R. J. OIL & REFINING CO., INC. 665 AUGUST 10, 1951 Mr. H. P. Smith, President R. J. Oil & Refining Company, Inc., 111 North 7th Street Terre Haute, Indiana Dear Sir: We are advised by Commissioner James Allen of the Federal Mediation and Conciliation Service that you have refused his request to have company representatives meet in negotiations with representatives of this Union for the purpose of attempting to con- summate a collective bargaining agreement for employees at your Princeton, Indiana Refinery which this Union has been certified by the National Labor Relations Board to represent. Mr. Allen's suggestion and request of a meeting to resume collective bargaining, this forth coming week was made with our knowledge, concurrence and willingness to participate. We herewith request a meeting at a time convenient to representatives of both the Company and the Union this forth coming week or the following week. Will you let us have your reaction to this proposal, and your position with respect thereto, at once. It would seem we should be free to take other steps if we fail to hear from you by Thursday, August 16, 1951. Sincerely yours, /s/ Roy N. Freeman, Representative OIL WORKERS INTERNATIONAL UNION, CIO On August 14, 1951, Smith replied to Freeman's letter of the 10th. For the same reason it likewise is inserted herein below. Mr. Roy N. Freeman, Representative Oil Workers International Union, CIO District Office Number 6 Rooms 1518-20, 188 West, Randolph Bldg. Chicago, Illinois Dear Mr. Freeman: In answer to your letter of August tenth. Mr. Allen called and asked for a meeting, I cannot remember the date. I informed Mr. Allen our Plant was down and that we are trying to erect a larger fractionating tower. Also, I told him that we would have to have some experience in operating the larger tower before I would be in a position to meet and discuss all matters on which I have information or knowledge of the issues involved. I am willing to meet with you when the new fractionating tower is completed and the Plant has been operating long enough to give us the experience needed for us to determine our labor and other costs. Yours very truly, R. J. OIL & REFINING CO., INC. President 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Freeman's reply to Smith's letter of August 14 follows below. August 16, 1951 Mr. Henry Smith, President R. J. Oil and Refining Company 111 North Seventh Street Terre Haute , Indiana Dear Mr. Smith: In response to your letter of August 14th, we again renew our request for a meeting with responsible officials having authority to speak for the Company. It is true that we have met and discussed all matters that were proposed for inclusion in a collective bargaining agreement. However, agreement was not reached on certain items. In addition, certain commitments made by Mr. Fuller to our people at the plant in Fort Branch, which involve working conditions, havenot been lived up to. It, therefore, is the Union's desire to discuss these commitments which have been broken and, in addition thereto, the Union might be willing to modify its position on the items in dispute to the extent that those items already agreed to might be reduced to writing and placed in effect and machinery established for future disposition of the remaining items. Our continued inability to get Mr. Fuller to live up to his commitments and our continued inability to meet with responsible Company officials to resolve our differences, might well result in a further work stoppage. May I have your early response to our renewed proposal for a negotiating conference? Very truly yours, Roy N. Freeman, International Representative Oil Workers International Union, CIO On August 27, 1951, Smith replied to Freeman 's letter of the 16th. It also is set forth below. August 27, 1951 Mr. Roy N. Freeman, Representative Oil Workers International Union, CIO District Office No. 6 Rooms 1518-20, 188 West, Randolph Bldg. Chicago, Illinois Dear Mr. Freeman: The reason for the delay in answering your letter of August 16th was pressing business and being compelled to be out of the city. I thought I made myself clear in my letter to you dated August 14th. Very truly yours, R. J. OIL & REFINING CO., INC. President The interchange of correspondence between the parties was fruitless insofar as arranging a meeting between them was concerned, and it was not until October 2, 1951, that such a meeting was had. On that date they met. Freeman's account of what transpired at that meeting is, in the considered opinion of the undersigned, a good summation thereof and best told in his own words; for this reason it is set forth herein below. R. J. OIL & REFINING CO., INC. 667 Q. (By Mr. Marcus) Then Mr. Freeman in the October 2nd meeting was there any discussion about a delay in the negotiations for a period of time? A. Yes. Q. Could you tell us what that was? A. In the October 2nd meeting, first we met with the company, the conciliation man and then the union, and then eventually called us together. Q. When you were together was there any discussion about delay in negotiations9 A. Mr. Smith at that time stated that he hadn't had enough time to find out what the tower actually was going to do. It would be sometime before he would be in a position to tell if he would be in a position to give us more money or benefits, and at that meeting I made a proposal to Mr. Smith that we would set aside all the money matters and would agree to the things that pertained to seniority, working conditions, settling of grievances and disputes, so that the boys in the plant would have some basis to operate. Mr. Smith took the position that the contract was not complete unless it had all of the money items and benefits spelled out. I tried to convince Mr. Smith that we were only going to set the money matters aside until such time as he could fully determine what his situation on the new tower, how much it was -- how much more production was going to be forthcoming, and then we would set down and finish the agreement; that there had been some statements made to the committee on grievances, in the past, complaints, and then they were changed and the boys had had no basis out there to exactly know where they were going because one time this might come up and it would be settled in that manner, and the next time it might be settled in a different way, and therefore I wanted a concrete grievance procedure set up so that we would have that out of the way, and agreed to. Mr. Smith flatly refused to go along with that, and the meeting broke up, no progress was made, he stating that within sixty days he might be able to meet with us. Q. Sirs A. Stating that within sixty days he might be able to meet with us. In the course of the above-described meeting Freeman and Smith engaged in a heated conversation as regards the position of the Respondent in its steadfast refusal to enter into a written contract embodying the issues that had been agreed upon, and the Union's proposal that they continue negotiations on other issues thatwere in dispute, such as "money-matters," union shop, checkoff, holiday pay, and arbitration. In other words the parties would leave the contract open as to such matters, and when an agreement had been reached on any or all of them, then they too would be embodied into the contract. Smith refused the Union's proposal in this regard. At about this timeFreeman told Smith that in his opinion "-- he had two things he could do; number one, was to set down and negotiate a contract that contained some of the benefits and wages that were afforded other oil workers in the country, or I would suggest that he go out of the refinery business. Either let his plant rust down, or we would help him take the products out, and tear it down, and then when he got through he could lay the em- ployees off and go out of the refinery business." The fourth meeting between the parties has been described above. There was no formal meet- ing between them again until January 18, 1952. In the interim there was some interesting correspondence between representatives of the Union and President Smith, since the tenor of the letters is indicative of the tension that was slowly but surely developing between the parties, the undersigned feels that it would be well to insert such correspondence herein. Accordingly it follows in sequence below. On November 26, 1951, Hubert Burden,secretary-treasurer of the Union, wrote the following letter to Smith: November 26, 1951 Mr. H. P. Smith, President R. J. Oil & Refining Company, Inc. 111 North 7th Street Terre Haute, Indiana Dear Sir: At the close of our last meeting with you with respect to negotiating an Agreement for the employees of your refinery at Princeton, Indiana, you advised that you were not in 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a position to sign an agreement as of that date but would be willing to meet again in sixty days. Since the last meeting was held on October 2nd we are looking forward to meeting again on or about December 3rd, if this date is convenient for you. If not, please arrange for a meeting as near December 3rd as possible and advise the undersigned, with a copy to Mr. Roy N. Freeman, Acting Director of the Oil Workers International Union, CIO, 188 West Randolph Building, Chicago, Illinois. Yours very truly, OIL WORKERS INTERNATIONAL UNION, C.I.O., LOCAL NO. 368 Hubert Burden Secretary -Treasurer After waiting a reasonable time and having received no reply from Smith to his letter of November 26, 1951, Burden again wrote him an January 8, 1952. This letter likewise is set forth herein below. January 8, 1952 REGISTERED MAIL RETURN RECEIPT REQTJESTED Mr. H. P. Smith, President R. J. Oil & Refining Company, Inc. 111 North 7th Street Terre Haute, Indiana Dear Sir: On November 26, 19511 wrote you in part as follows: "Since the last meeting was held on October 2nd we are looking forward to meeting again on or about December 3rd, if this date is convenient for you. If not, please arrange for a meeting as near December 3rd as possible and advise the undersigned, with a copy to Mr. Roy N. Freeman, Acting Director of the Oil Workers International Union, CIO, 188 West Randolph Building, Chicago, Illinois." As of the date of this letter I have not received a reply to my letter of November 26th. This is to advise you that unless a reply is received from you arranging for a meeting within the period of the next ten days your plant will be shut down without further notice. It seems as though you have objected to Mr. Freeman and the undersigned sitting in meetings with you. Due to this fact we had advised our Committee from your plant near Princeton, that they could hold a meeting with you in an attempt to conclude negotiations. However, I have been advised that you have not seen fit to meet with this Committee for various reasons. I think you will have to agree that we have been very patient with you in the past. In the future there will be a representative from the Local Union and a representative of the Oil Workers International Union, C.I.O., present at all conferences between this Union and your Company until a satisfactory agreement is reached. Yours very truly, OIL WORKERS INTERNATIONAL UNION C.I.O., LOCAL NO. 368 Hubert Burden Secretary -Treasurer R. J. OIL & REFINING CO., INC. 669 On January 12, 1951, Smith wrote Burden as follows: January 12, 1952 Mr. Hubert Burden, Secretary-Treasurer Oil Workers International Union, C.I.O. Local No. 368 Lawrenceville, Illinois Dear Mr. Burden: I have your letter of January 8, 1952. Answering the first paragraph, the reason the letter of November 26th was not answered is because there had been some local dis- cussions with the Refinery Committee as to meetings and so forth and I assumed that the Oil Workers International Union, C.I.O. had been advised. I do not like the second paragraph whereby you threaten a strike unless a meeting is arranged within the next ten days. Threats and coercion, in my opinion, do not help harmonious relationships and I question very much if you had the authority from the employees of the R. J. Oil & Refining Co. to make this threat. Referring to your third paragraph, your assumption in this paragraph is wrong as to Mr. Freeman. I have never objected and do not object at this time to a meeting of our local Committee with Mr. Freeman or any other full time representative of the Oil. Workers International Union, C.I.O. as I realize that the Oil Workers International Union has been certified under the National Labor Relations Act to represent employees of the R. J. Oil & Refining Co., Inc., and we do not question this authority and have never refused to meet the Plant Committee or any of the duly appointed representatives. How- ever, I do hesitate in giving confidential information to a full time employee of a com- petitor, the said competitor being in local competition in the same area where practically all our products are sold. I feel the Oil Workers International Union should have a local Union made up of em- ployees of the R. J. Oil & Refining Co., and the officers of this local Union should be employees of the R. J. Oil&RefiningCo. in other words, I object to you sitting in meetings and getting confidential information as to costs and operation of our little skimming plant. If I understand the situation right, you are a full time employee of the Texaco Company at Lawrenceville; that you are Secretary-Treasurer of Local No. 368 which has a large membership. In other words, the membership of the R. J. Oil & Refining Co. would be a very small percentage of the membership of Local 368, and under this situation and condition, it is very easy for you to threaten a strike as a strike at the R. J. Oil & Refining Co. would not interfere with your income or economic life. Please do not understand this letter to be a refusal to meeting a duly appointed representative of the Oil Workers International Union. I would be willing to meet Mr. Freeman or any other full time officer of the Oil Workers International Union, C.I.O. and members of a committee of the employees of the R. J. Oil & Refining Co., Inc. This meeting can be arranged satisfactorily for ten o'clock, A. M., Wednesday, January 16, 1952, at the Emerson Hotel, Princeton, Indiana. This is assuming that weather conditions and such are favorable for the representatives to travel to Princeton. This is the only date I will have open in January as it is necessary for me to be in Washington, D. C. the week of January 21st and I have plans for the week of January 28th. If you are present or any other full time employee of a competitor, I shall hesitate to divulge any confidential information as to costs and so forth. Yours very truly, R. J. OIL & REFINING CO., INC. President In the considered opinion of the undersigned the above letter from Smith to Burden is of the utmost importance in the undersigned's ultimate determination of the issue herein, for the simple reason that it sets forth in clear and concise language the reason for much of the disagreement that had developed between the parties and eventually was one of the 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD major causes of the "break-up" of negotiations between them. The undersigned has in mind that portion of Smith's letter which refers to his objection to the presence of Burden at the bargaining session. That the employees themselves had some reaction is evidenced by the testimony of Hill who was a member of negotiating committee, and was in attendance at all of the formal meetings. Moreover, he was at all times material herein a full-time employee of the Respondent, of which more anon hereinafter. According to Hill the employees in the unit though they had rejected the idea of organizing themselves into a separate local, nevertheless felt that since the bargaining sessions had so far accomplished nothing, at least up to the last formal meeting on October 2, 1951, and thereafter during the months of November and December 1951, that perhaps something could be accomplished if a committee consisting solely of employees in the unit discussed their differences with the Respondent. With this in mind an effort was made by Hill, Chandler, and others of the committee to meet with Smith. Though arrangements were made and dates tentatively set for meetings, nothing was actually accomplished, mainly because Smith was unable to keep appointments which had been made through Superintendent Fuller, for one rea- son or another, such as the press of other business and weather conditions. Consequently, their efforts in this regard came to naught. The parties finally met for the fifth time on January 18, 1952, at the Emerson Hotel in Princeton , Indiana. Representing the Respondent were Fuller and Smith , and for the Union, Freeman, Burden, and the local committee consisting of Hill, Sollman, and Chandler. At the onset of the meeting Smith for the first time openly and publicly objected to the presence of Burden, the secretary of the Union. His objection, in substance, was predicated on the fact that Burden was an employee of the Texas Company, and that as such was in a position by virtue of being present at the meetings to ascertain vital economic data as regards the Respondent's operations which in turn might be imparted to his superiors in the Texas Com- pany. At this meeting Smith told the Union's negotiators that he was willing to grant a wage in- crease to the refinery employees within the limits that were then acceptable to the Wage Stabilization Board. This offer though not entirely satisfactory to the Union, was never- theless acceptable providing they could work out the rest of the disputed items in the Union's proposal. Smith's offer amounted to an increase of around 14 cents per hour for operators 7 cents per hour for yard and maintenance men. Smith also promised the union committee that he would bring his profit and loss statement for the month of November 1951 to the next meeting, which was tentatively set by Smith for January 29, 1952, of which more anon hereinafter. At the time Smith made his proposal as regards the wage increases to the operators and yard and maintenance employees, he was queried by the union negotiators as regards the wages of the truckdrivers. Smith advised them thathe did not have a report on them with him, and consequently was unable to discuss their wages at that time. Pursuant to Smith's suggestion the members of the union committee assembled at the Emmerson Hotel in Princeton, Indiana, for their proposed meeting with the Respondent on January 29, 1952, at 10 a. m. Composing the union committee were the following. Burden, from the Local, and Freeman from the International office, and Chandler, Sollman, and Hill for the employees at the refinery. Representing the Respondent was Fuller. Smith was not present. Fuller stuck around the hotel for a short time and then he left and went out to the refinery. Shortly thereafter Burden called out to the refinery and talked to Fuller, who advised him that he [Fuller] had called the Respondent's office in Terre Haute, and had been advised that Smith's whereabouts were unknown to his office. Later that afternoon at about 2 p.m. Rebone, the Respondent's office manager came to the hotel and advised the union committee that Smith had gone out to one of his oil wells that morning where he had become ill and was forced to return to his home in Terre Haute. The meeting was then adjourned until February 5, 1952. The sixth and last formal meeting between the parties was held on February 5, 1952, at the Emerson Hotel, in Princeton, Indiana. Present for the Union were the following: Burden, as secretary-treasurer of the Local, and A. David Herring, for the International. 14 After a careful review of the entire record, the undersigned is convinced that the testimony of A. David Herring, the international representative at the meeting, clearly sets forth the events as they transpired at this final and important meeting between the parties. With 14 Freeman who had been in attendance at all of the past meetings was unable to attend and Herring appeared in his stead. R, J. OIL & REFINING CO., INC. 671 this in mind the undersigned is convinced that excerpts from his testimony in this regard should be set forth her. in. His testimony is clear and to the point and fully credited by the undersigned Consequently, it follows below Q. Now, could you just tell us as best you remember it, what transpired at that meeting, who said what to whom? A. The union committee composed of Secretary Burden, Amos Hill, Chandler, Sollman and myself met with the Company representatives, Mr. Smith and Mr. Fuller. Mr. Smith started off saying that he wanted to hit the controversial issues that were keeping the negotiations from reaching a successful conclusion. At that point, Mr Smith pro- posed a package deal. Before he proposed the package deal, he said that the truck dri- vers' wages and our request of the truck drivers that they divide the work when a truck was down was out of the way, was set aside, that they wouldn't agree on anything like that. He then offered a wage proposal of the amount which the union had said was per- missible under the COLA, Cost of Living Allowance, which was talked about, and a figure more or less agreed upon at the January 18 meeting, to apply to the refinery workers only. In his package deal he said there would be no union shop, no check off, no shift differential, no holiday pay. He agreed at that time to eight hours--let me cor- rect that. He agreed at that time for overtime pay for over eight hours of work. He had previously agreed over forty, and he put the daily overtime in at that time. On sick leave he put in a clause of three months at full pay, and three months at half pay. He talked further about the possibility of giving the men a sick pay plan, or a hos- pitalization plan, let me say, if there could be an agreement reached with the inde- pendent union which was in the machine shop at that particular time. That was roughly his proposal at that meeting Q. Now, what was the union's reaction to that and who was the spokesman for the union9 A. Brother Burden and myself, I would say, were the speakers for the union. I. of course, familiarizing myself with what had been going on before, and Brother Burden more or less carrying the ball in that session According to Herring, the union negotiators were "more or less agreed" on the wage pro- posal made by Smith with the understanding that it would be acceptable providing a solution could be found for other matters which the Union considered of equal importance. One of such matters was a question concerning the wages and working conditions of the truck- drivers It must be remembered that they too were a part of the unit found appropriate by the Board and it was the duty of the Union as the certified bargaining agent to bargain for them as well as for the employees actually employed in and around the refinery , that is the production and maintenance workers. Again, as indicated above in Herring's testimony Smith at the onset of the meeting before he presented the Respondent's so-called "package-deal" specifically and unequivocally announced to the union negotiators that insofar as the truckdri- vers were concerned they were not included in his "package-deal" proposal. This was of importance to the Union because at one of the first meetings beween the parties, Smith had tentatively agreed to a seniority system for the truckdrivers as a separate group, at the same time he had tentatively agreed to a seniority proposal offered by the Union as regards the production and maintenance employees as a group As the undersigned sees it, Smith dis- regarded his earlier agreement to a seniority system for truckdrivers that would permit an employee with seniority to work and drive any one of the Respondent's trucks which was in operation even though the particular truck whichhedrove regularly was laid up for repairs or there was not sufficient work to keep all the trucks on the road. The Respondent's position insofar as the truckdrivers were concerned, was that each man had his own truck and for any reason that particular truck was out of service, such as for repairs and the like, then the driver who was assigned to it was automatically laid off regardless of his seniority. In other words, the "body" went with the truck. After Smith stated the Respondent's position as regards the truckdrivers, the Union, as indicated above, raised its objection to his proposal in this regard, which was as stated by Herring in his testimony, that under the system advocated by the Respondent, some men work- ing long hours, while others with more seniority were laid off regardless of their seniority. This the Union felt was grossly unfair and should be remedied. Another point of contention as regards the truckdrivers was their rate of pay. Under the system then in effect, the drivers' remuneration was based on the time allotted per trip by the Respondent For example, the Respondent allotted a certain number of hours for a truck to make the run 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from say Princeton to Vincennes, Indiana, and no deviation was permitted from the maxi- mum number of hours allotted regardless of what might occur on the trip. To the Union this system was unsatisfactory. Though the parties did discuss these matters no agree- ment was reached, and at the end of the meeting the truckdrivers' situation was back where it was when negotiations started, regardless of Smith's previous agreement to a tentative proposal of the Union made at one of their first meetings as pointed out above. There was discussion as regards other matters at the meeting, particularly as regards holiday pay. During the course of the meeting Smith produced the Respondent's records for a period of 1 year which the Union considered bad faith in view of the fact that at a previous meeting Smith had promised to produce for the Union's inspection the Respondent's earnings for a 2-month period, so that they could intelligently discuss the issue of holiday pay. As the undersigned sees it, the Union bad reference to a 2-month period after the new frac- tionating tower had been installed and the earnings after that time were to be the basis for their discussion as regards the payment of holiday pay It must be remembered that in prior meetings, that is from May 16 to October 2, 1951, Smith had refused to discuss "money- matters" either because of the pendency of an ultimate erection of the new tower or for the reason that not enough time had elapsed since the completion of the tower to ascertain whether or not production had increased and if so to what extent it had increased the Respondent's earnings, from which of course, any agreement with the Union as regards holiday pay would have to rest. When Smith produced the Respondent's cumulative figures for a 1-year period, Amos Hill, one of the union committee men, raised an objection to Smith's pro- cedure in this regard, and reminded him that he had promised to bring the records for "a certain period of time." As the undersigned sees it, Hill's objection was based on the fact that at previous meetings, particularly the first four, May 18, June 4, July 11, and October 2, 1951, Smith had refused to discuss "money matters" for the following reasons: (1) the Respondent was losing money, (2) the pendency of the construction of the fraction- ating tower, and (3) that "money-matters" could not be intelligently disposed of until the Re- spondent was in a position to determine whether or not the new fractionating tower had increased production at the refinery and thereby increased the Respondent's profits Hence, when Smith presented the cumulative profit and loss records for a period of 1 year, instead of the period of the months the new tower had been in operation, the parties did not have before them a true picture of the Respondent's present and anticipated earnings upon which an increase in wages would of necessity have to be based For this reason Hill protested Smith's action in this regard Smith resented Hill's query in this regard and "bolted" the meeting, stating that he did not "feel any too good" and could not deal with Hill, and left the meeting Shortly thereafter, Herring went to Smith's room in the hotel. Herring's ac- count of what transpired follows below. Q. Now, after the meeting broke up, did you talk with Mr Smith'? A. Yes, sir. Q. Where did you talk to Mr Smith, and what was said A. I went immediately to his room Q. Was that in the Emerson Hotel? A. Yes. Q. What happened? A. I got Mr. Smith to the door and told him I had never in my eighteen years of bargaining ran into anything like that, that I thought he should at least have the courtesy to come back and talk shut-down procedure with the union. He said, "Take that up with Scotty." Q. Then, did you have any further contact with Mr. Smith? A. I did. Q. When was that? A. About 6:30 in the evening, by telephone. Q. Was that the same evening? A. Same evening. Q. Now, tell us what developed in that conversation, who called whom? A. I called Mr. Smith The conversation went something like this, that it was my opinion that we should get together and resolve these points that we were apart on in the agreement, and I wondered if he was available for further meetings, that he couldn't deal with Amos Hill, that he was going to take a vacation, he was going to Florida, R. J. OIL & REFINING CO, INC 673 that if we wanted to strike the plant, to go ahead and strike it, drain the water out and leave it set, and in no event would he see us until after the first of March. 2. The evidence in support of the Respondent's defense to the alleged refusal to bargain As indicated above the negotiators for the Respondent at the bargaining meetings were as follows: President Henry P. Smith and Superintendent J. R. Fuller, 15 Fuller alone parti- cipated and testified at the hearing herein At the onset of Respondent ' s defense- in-chief Fuller testified as follows as regards President Smith's inability to appear and testify at the hearing. Q. Now, has Henry Smith asked you to come down and testify9 A. Yes Q. Will you explain why Mr. Smith isn't here9 A. Well, he called me and asked me to testify, because of his other interests, he is President of the National Coal Association, not president, but Director, and he has other interests throughout the country, plus inside the state of Indiana, and he is taken up with that at the present time Q. Did he make any remark , to you about your being in negotiations , the same as he was? A. Yes, he remarked I had been at all of the negotiations, and knew as much about the negotiations as he did According to Fuller the Respondent discussed all phases of the Union's proposal at one time or another during the various meetings between the parties Certain proposals were agreed to and others were rejected in toto, such as the union shop and checkoff of union dues. He further testified that Smith never agreed at any time either at the first meeting between the parties or at any other meeting to a union shop or to a checkoff provision in the Union's proposal. As the undersigned understands it, Smith was opposed to a union shop and the check- off of union dues as a matter of principle Fuller' s testimony is in agreement with that of Freeman and other witnesses called by the General Counsel that at one stage of the negotiations the union negotiators proposed to the Respondent that a partial contract be signed which would include those issues upon which the parties were in agreement , and that the issues upon which there was still disagreement be temporarily set aside and negotiated later. The issues upon which there was still dis- agreement being the union shop, checkoff , seniority , certain portions of the Union' s proposal on settlement of grievances , such as arbitration , and "money- matters " Fuller 's account of the Hill incident at the February 5, 1952 meeting was as follows: Q. (By Mr. Donovan) Calling to your attention, the February 5 meeting , there has been a discussion as to what might be known as the session between Mr Smith and Mr. Hill. Will you relate to the Trial Examiner what, if anything , was said by Mr Hill and Mr. Smith during this February 5th meeting, which, apparently , was in a loud voice9 A. Before that incident , I would like to relate we were getting along very nicely with Mr. Herring in the meeting, and we agreed on quite a few of the issues in there, in fact, I would say at least two thirds of the wages and so forth, and we finally got to holiday pay. The issue come up, called for a slight recess, and when they came back in the room, Mr. Hill said that if we would give them the union shop that they would waive pay for jury and witness duty. That was one of the items in there. And then it got back into the issue of holiday pay, pay for holidays, which was what they wanted, straight time if they didn't work and double time if they did work, and Mr. Smith couldn' t go along on it He said he had given all he possibly could, on this four cents an hour statement he had given them, and Mr . Hill said it wasn't a true picture of what the tower could do, and he said, "Well, just like my income tax, I pay on what I made last year." And there was an incident of directly calling him a liar, and Mr. Smith said -- MR MARCUS: I object. i50fttimes referred to in the record by various witnesses as "Scotty." 339676 0 - 55 - 44 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER SHAW That may be stricken just testify what each said All testimony comes in that way THE WITNESS: Mr Hill said he was not giving him a true picture of the earnings, and Mr. Smith said, "Well, it looks like we are at a stalemate , and I have a previous engagement for 4 30, and I will have to go to that meeting, but I don't see there is any reason to meet in the future, unless we can break the stalemate " " But," he said, "there is definitely a stalemate on certain things, union shop, check -off and so forth " As indicated above the meeting on February 5, 1952, came to an abrupt end shortly after the argument between Hill and Smith On February 9, 1952, the Union voted to strike the plant . The issues that developed there- after will be thoroughly discussed below. u Fuller was the only witness called by the Respondent to refute the testimony of the General Counsel's witnesses as regards what transpired at the bargaining negotiations between the parties. As a matter of fact he was the only person available to testify in this regard, since Smith for reasons set forth above did not choose to either participate in this proceeding or to testify on behalf of the Respondent , by deposition or otherwise On May 6, 1953, the undersigned reopened the record for reasons that have been set forth above. In the course of the hearing Frank Barnhart , regional director for District 50, of which more anon, testified without contradiction as regards the circumstances sur- rounding the recognition of District 50 as the exclusive bargaining representative of the Respondent' s employees . According to Barnhart' s testimony , which the undersigned credits, the contract between the Respondent and District 50 contains inter alia the following in- teresting clauses: (1) A provision which Barnhart admitted upon interrogation by the under- signed to be a 30 -day waiting period before the employees could join District 50.(2) a provision for a dues checkoff; and (3) there is no provision in the contract for the truck- drivers, and consequently they are excluded entirely from the contract at issue herein. Since the contract with District 50 was entered into within less than 24 hours after District 50 presented its evidence of majority representation , Barnhart' s testimony becomes of major importance in the undersigned 's ultimate resolution of the credibility of Fuller and other witnesses who testified on behalf of the Respondent Conclusion as Regards the Alleged Refusal to Bargain From all of the foregoing , including a consideration of the independent violations of Sec- tion 8 (a) (1) of the Act which the undersigned has found herein above and the events de- scribed below as regards the recognition of District 50 as the exclusive bargaining repre- sentative of the Respondent ' s employees , the undersigned is convinced and hereby finds upon the record as a whole that the Respondent by its overall conduct "did refuse and is now refusing and failing to bargain collectively with the Union " as the certified exclusive bargaining representative of the employees in the unit described above, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act Many factors have entered into the undersigned's finding in this regard At the onset lie desires to point out that this finding is predicated upon a host of derelictions upon the part of the Respondent Quite frankly many of them as regards material matters at the bar- gaining sessions even if they stood alone might well have been the basis of his ultimate find- ings herein Unfortunately , they do not so stand, but on the contrary when considered as a whole they present a picture that indicates to the undersigned that the Respondent never had any real intention of reaching an agreement with the Union in fact, the undersigned is convinced from the record as a whole that the Respondent , speaking particularly through its president , Henry P. Smith , pursued a course of conduct throughout the bargaining ne- gotiations that indicates a complete rejection of the principle of collective bargaining To begin with , the negotiations started out in a bad atmosphere. For example , the under- signed is convinced and finds that at the first meeting the Respondent agreed to the inclusion of a provision for a union shop and dues checkoff in the proposed contract , and thereafter shifted its position in this regard Smith according to Fuller, as the undersigned interprets the record , rejected the Union's continual demands for the inclusion of such provisions in the contract as a matter of principle . No one would question either the right of the Re- i6 The record clearly shows that the employees themselves voted to strike the plant. R. J. OIL & REFINING CO., INC. 675 spondent or of Smith as an individual to reject the idea of either a union shop or the check- off of union dues for such a reason. Many employers do, that is their right. Nor does the Act compel them to accede to the demands of the exclusive bargaining representative for such provisions. All that the Act requires is that an employer must bargain in good faith with the bargaining representative of his employees. The gravamen of the Respondent's posi- tion is that it did agree to such provisions and then not only denied that it had done so, but thrust aside discussions in this regard at all meetings thereafter What its position in this regard amounts to is that it is indicia of bad faith in its bargaining negotiations with the cho- sen representative of its employees. It is quite true that Fuller in his testimony denied that President Smith had agreed to the union shop and dues checkoff at either the first or at any other meeting between the parties. However, the undersigned does not credit his denial in this regard, but on the other hand credits the testimony of Burden, Freeman, and Hill that Smith agreed to the inclusion of the disputed provision at the first meeting between the parties The undersigned does not credit Fuller's denial in this regard for reasons which will be apparent hereinafter Other compelling factors that have persuaded the undersigned to reject Fuller's testimony as regards the union-shop and checkoff provisions are the following (1) The undenied and un- contradicted testimony of Hill, which the undersigned credits, to the effect that at one of the meetings he pointed out to Smith that he had contracts with the United Mine Workers and Machinists Union at other of his enterprises which inter alia contained provisions for both the union shop and the checkoff of union dues etc., which Smith admitted was the case, but by way of explanation stated that he had no choice in the matter at such enterprises because he had been compelled to accept such provisions on a "that or else" basis, (2) if such was the case then the question is posed why did the Respondent, acting through Smith, later enter into a contract containing somewhat similar provisions within less than 24 hours after District 50 demanded recognition from the Respondent as the representative of the employees with whom we are concerned herein, 17 and (3) the fact that the parties herein en- tered into an agreement for a consent election among the Respondent's employees under the auspices of the Boardb to determine whether or not they desired the Union to bargain with the Respondent for such a provision in the proposed contract, before the parties herein had their first meeting on May 16, 1951. From these facts the undersigned is convinced and infers that Smith had no real objection to a union shop or checkoff of dues and consequently made the statement attributed to him by Burden, Freeman, and Hill at the first meeting be- tween the parties on May 16, 1951 Moreover, the fact that the Respondent did enter into a consent-election agreement indicates to the undersigned that Fuller's denial that Smith had agreed to a union-shop clause at the first meeting between the parties was not a true account of what transpired at that meeting In other words the deeds and positive acts of the Respondent belie its contention in this regard, primarily because the Act at that time and the Board's Rules and Regulations then in full force and effect, provided for either a Board-ordered election or for a consent election. Since the Respondent chose the latter, this fact alone further belies Fuller's testimony in this regard. The conduct of the Respondent in shifting its position as regards the union shop and dues checkoff is in the considered opinion of the undersigned indicia of the Respondent's deter- mination from the onset of the negotiations to thwart the efforts of its employees to bargain with it through a representative of their own choosing. Another compelling factor was the attitude of the Respondent towards its truckdrivers (1) during the bargaining negotiations, (2) prior to the certification of the Union as the ex- clusive bargaining representative of its employees, and (3) at the time it entered into a con- tract with District 50. Here again we find the Respondent shifting its position as regards a material issue. It must be remembered that at the time the Union filed its petition for de- termination of representatives under the provisions of Section 9 (c) of the Act, it excluded the truckdrivers from the unit it contended was appropriate for the purposes of collective bargaining At the hearing on the question concerning representation on Princeton, Indiana, on January 25, 1951, Case No 35-RC-463, the Respondent took the position that the truck- drivers should be included in the appropriate unit. The Union vigorously opposed their inclusion on the grounds that it was against the policy of theUnion to include such em- ployees in a unit of production and maintenance workers, primarily because the interests and problems of the truckdrivers as a group were different from that of oilworkers in r' See infra under that section of this report styled "The alleged violation of Section 8 (a) (2)." 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD general around a refinery and secondly , because they had traditionally been excluded from a unit of production and maintenance workers in the industry . The Board , as indicated above rejected the Union's contention in this regard and in its Decision and Order sustained the con- tention of the employer (that is the Respondent herein) and ordered that they be included in the appropriate unit Consequently , the Union was under a legal obligation to bargain for such employees in its negotiations for a contract with the Respondent . This it attempted to do during the course of its negotiations with the Respondent , as the record amply demon- strates. Let us now look at the record as regards the position taken and the demonstrated attitude of the Respondent towards the truckdrivers at the bargaining negotiations . At one of the first meetings , the union proposed that seniority be recognized by the Respondent in its assignment of work to the truckdrivers The Union pointed out to the Respondent that it considered that the system then followed was grossly inequitable in that on occasions truck- drivers with seniority were out of work while others with less seniority were not only working full time but actually working overtime The system then in effect was that each driver was assigned to a truck and was paid so many hours for each run. For example, if the Respondent allowed 4 hours for a run to say Terre Haute , then if he made the trip in 3 hours , he would nevertheless be paid for 4 hours work, and vice versa . If on the other hand a truck was down for repairs , the driver assigned to that particular truck was laid off until the truck was repaired and ready to roll again Thus a driver who had say for example 5 years' service would be out of work while one with 6 months ' service would continue working regardless of the seniority of the driver whose truck was down. The Union proposed that the drivers with the highest seniority should be kept on the job regardless of whose truck was down. At the meeting on June 4 , 1951 Smith speaking for the Respondent "tentatively" agreed to a separate seniority list for the truckdrivers. At a later meeting the Respondent receded from this position and stated that the system then in effect would con- tinue. The Union was unable thereafter to persuade the Respondent to agree to its original proposal as regards the truckdrivers . So when the negotiations broke off on February 5, 1952, the parties were right back where they started from insofar as the truckdrivers were concerned. By shifting its position in regard to its earlier agreement concerning the truckdrivers, the Respondent again evidenced its rejection of the principle of genuine collective bargaining. To say the least, the undersigned considers the Respondent 's conduct in this regard as a most serious dereliction of its statutory duty to bargain in good faith with the Union. The gravamen of its conduct in this regard is the fact that it created the situation itself. As pointed out and discussed above, the Respondent insisted , indeed demanded , at the repre- sentation hearing18 that the truckdrivers be included in the appropriate unit over the vig- orous protest of the Union. The record clearly shows that throughout the negotiations between the parties the Respondent treated them as step-children , so to speak. It not only shifted its position regarding its tentative agreement with the Union that a separate seniority list would be established for them, but vascillated as regards other issues concerning these employees, particularly " money-matters " For example, when Smith made his "package- deal" offer to the Union at the meeting on February 5, 1951, no provision whatever was made for the truckdrivers in his proposal . This leads the undersigned to conclude that the Re- spondent never intended to bargain in good faith with the Union as regards these employees despite the fact that it itself had insisted upon their inclusion in the bargaining unit in the first instance. If this were not enough to compel one to reach this conclusion , if indeed more were necessary , then its conduct as evidenced by its contractual agreement with Dis- trict 50 surely does . As pointed out above the truckdrivers were completely ignored and left out of the bargaining unit altogether in its agreement with District 50 Clearly such conduct justifies and indeed compels the conclusion that the Respondent never had any intention of bargaining in good faith with the Union as regards these employees , who at all times material herein represented approximately 25 percent of the employees in the unit found appropriate by the Board. The Board and the courts , in a long line of decisions too numerous to encumber this report with endless citations therefrom , have consistently held that such conduct on the part of a Re- spondent constitutes evidence of, and in fact is, a refusal to bargain in good faith. That the conduct of the Respondent in shifting its position as regards the Union ' s proposal for a union shop , checkoff, and seniority for the truckdrivers is clearly violative of the Act 12 Case No. 35-RC-463. R. J. OIL & REFINING CO., INC. 677 was recently well stated by the Board in the Stanislaus Implement and Hardware Company case, 101 NLRB 394. In that case under a somewhat similar set of facts the Board found, inter aha , that the Respondent therein violated Section 8 (a) (5) and (1) of the Act by: (1) In negotiating about the union-shop clause, the Respondent took shifting positions, (a) at first, objecting to the Union 's proposal for a union-shop clause contingent on winning a union-authorization election, because of the alleged propaganda value to the Union of such a clause in advance of such an election , (b) then, contending that any discussion even of a contingent union-shop clause before such an election was illegal , and (c) finally, after the Union had won a union -authorization election to which Respondent had agreed, t e Respondent asserted that it would not agree to a union shop because of its opposition to compulsory union membership . [Emphasis supplied.] Like the Board , the undersigned finds that by the conduct described immediately above, the Respondent herein violated Section 8 (a) (5) and (1) of the Act. Further indicia of the Respondent 's refusal to bargain with the Union in good faith was its refusal to permit Freeman to bring an accountant with him to Terre Haute to examine its books for the purpose of substantiating President Smith's contention that the Respondent was unable to grant an increase in wages due to business conditions , which was the reason advanced by it in support of its refusal to discuss "money-matters " at the first three meetings . Smith's offer to Freeman was first made at the meeting on June 4, 1951 . At the time it was made Freeman informed Smith that he was not an accountant and for him to examine the books would be a futile gesture . He then suggested in substance to Smith that he be permitted to bring an accountant with him so that an intelligent appraisal could be made of the Respondent's position in this regard . His requestwas flatly rejected by Smith , who at the time again informed the representatives of the Union that Freeman alone would be permitted to examine the books . The record clearly shows that Freeman was by occupation a production worker in the Sinclair Oil Company's refinery mtheChicago , Illinois , area, and had no training whatever in accounting. Though the Respondent renewed its offer to Freeman at later meetings it never receded from its original position that he alone would be permitted to see the books and make the audit. In the considered opinion of the undersigned , the Respondent 's position in this regard was not only indicia of bad-faith bargaining , but standing alone a violation of Section 8 (a) (5) and (1) of the Act. The Board with approval of the courts has consistently held that an employer must make available to the exclusive bargaining representative of its employees information that is essential to an intelligent discussion of issues which are the subject of collective bargaining. Wages clearly fall within this category . A gesture in this direction is not enough, especially where the offer of the employer is coupled with a proviso that is futile on its face. Such is the situation herein. If the Respondent was motivated by good faith in the offer to the Union to permit Freeman to examine its books and records to substantiate its position that it would not discuss "money -matters ," then surely it could have had no objection to permitting him to be accompanied by an accountant so that its offer could become a reality. Hence Smith's offer was an idle gesture and futile on its face. Of course an employer is not required to furnish information in the exact mode and manner requested by the representative of his employees. All that he is required to do is to furnish it in a manner that is not so burdensome or time- consuming to impede the process of bargaining . 19 In the considered opinion of the undersigned the restrictions placed upon Freeman as spokesman for the Union by the Respondent in its offer to permit him alone to examine its books and records were of such a nature that its conduct in this regard falls within the purview of the Board 's policy as enunciated in a long line of cases too numerous to encumber this report with excerpts and citations therefrom. 20 As indicated above, the Respondent's employees went on strike on or about July 18, 1951, and remained out until July 27 , 1951 . During this period representatives of the Union made overtures to the Respondent and requested a meeting with President Smith . Thereafter, Fuller informed representatives of the Union that the Respondent would not meet with the Union while they were on strike. This conduct on the part of the Respondent was likewise violative of the Act. The Board and the courts have so held for many years . Here again the undersigned deems it unnecessary to clutter up this report with numerous citations and excerpts therefrom. 19 See The Cincinnati Steel Castings Company , 86 NLRB 592 and cases cited therein. 2i To cite but a few see N. L . R. B. v. J. H. Allison & Co., 165 F. 2d 766 (C A. 6); Cin- cinnati Steel Castings Company, supra; Leland-Gifford Company, 95 NLRB 1306. 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Suffice it to say however that their reasoning in this regard has been so firmly established that the undersigned deems it unnecessary to deal with it extensively here. 21 As indicated above the fourth meeting of the parties was held on October 2, 1951. During the course of the meeting the Union suggested to the Respondent that they reduce issues upon which they were in agreement to writing, and leave those which were in dispute open for further discussion , particularly as regards "money-matters ." The Union realized at the time that there could be little progress made on this issue until the Respondent's new fractionating tower had been in operation for a sufficient length of time to determine its profit or loss from this venture . Both parties realized that this was so and for that reason "money-matters " would of necessity have to be temporarily set aside until a reasonable time had elapsed after the new tower went into operation and its effect on the Respondent 's earnings was determined . As the union negotiators saw thesituation there would of necessity be a delay of several weeks before this important issue could be discussed intelligently. zP It was in the light of this situation that it made theabove suggestion to the Respondent as regards a written agreement on the issues tentatively agreed upon . The Respondent rejected the Union's proposal in this regard and took the position that it would only sign a complete contract. Though its refusal to accept the Union's proposalwas notviolative of the Act, the undersigned is convinced that when its refusal in this regard is considered in the light of what had previously transpired in their bargaining relations that it does , to say the least, lend support to the General Counsel's contention in his brief that the refusal of the Respondent to enter into an interim agreement pending the agreed upon 60-day hiatus in their negotiations was ".. one more example of Respondent 's intransigence." In its brief and on the record by its counsel the Respondent comments at great length its displeasure over the fact that the Union herein was certified by the Board as the exclusive bargaining representative of its employees. From what the undersigned can glean from the record its displeasure stems from the fact that the Union for the most part represents employees of large companies such as the Texas Company, Sinclair Oil and Refining Company, and others of equal rank in the petroleum industry, and that for this reason it is not qualified to represent employees of small or independent operators . For example, throughout the record and in its brief it seems to take the position that the Union arbitrarily forced its employees to become members of Local 268, which consisted for the most part of employees of the Texas Company at its Lawrenceville, Illinois , refinery , with total disregard to the wishes of its employees , whom it contends desired to be detached from Local 268 , and operate under their own charter . The record does not support the Respondent's position in this regard. There is not a scintilla of evidence in the record that either the International or Local 268 entertained or enforced any such policy. The evidence is to the contrary. As a matter of fact, and as the record clearly shows without contradiction, the Respondent 's employees who were members of the Union took the following independent action during the time material herein, first, at a meeting of the membership working at the Respondent 's plant they voted upon and rejected the idea of forming their own local primarily for the reason that they felt that they constituted too small a group, and secondly, that sometime following the bargaining meeting of October 2, 1951, they did attempt to act as an independent group on the local level and discuss their problems with the Respondent with the full approval of Local 268 and the International Union. Significantly enough when they did attempt to function as a group they were confronted with the same vacillating tactics that Local 268 and the international negotiators had heretofore experienced in their efforts to reach an agreement with the Respondent, as the record amply demonstrates. Of course the Respondent's ideas in this regard are of no moment and have no material effect upon the issues with which we are confronted herein . Nor are they in any respect violative of the Act. As far as the Act is concerned , the Respondent herein, or any employer or citizen , can entertain any opinions or ideas they desire ; that is their privilege. No sensible person would question their prerogative in this regard . Surely not the undersigned. The only relativity that the Respondent 's position in this regard has to the issues involved herein is that it impresses the undersigned to the extent that he feels compelled to point out to the Respondent that Section 7 of the Act inter alia provides in unequivocal language that "employees shall have the right to self-organization , to form, join, or assist labor organ- izations , to bargain collectively through representatives of their own choosing , and to engage zi To cite but a few cases in this regard see the following: West Fork Cut Glass Company, 90 NLRB 944; Old Town Shoe Company et al., 91 NLRB 240 and cases cited therein. 22 The record indicates that a 60-day hiatus in bargaining negotiations was agreed upon by the parties. R. J. OIL & REFINING CO., INC. 679 in other concerted activities for the purpose of collective bargaining or other mutual aid or protection ...... [Emphasis supplied] Surely the Act means what it says, consequently this compels the conclusion that the Respondent 's employees alone along with employees of other employers whose activities come within the jurisdiction of the Board , have the statutory right to choose their own representatives for the purposes of collective bargaining without interference from any source . In other words it is no concern of either this Re- spondent or any other employer similarly situated whom its employees choose to represent them. Their agent may be either a labor organization , an individual such as an attorney, minister, or any person capable of acting as such . As a matter of fact any interference by an employer in this regard is in and of itself violative of the Act, as will be discussed and disposed of hereinafter. In the main the Respondent's defense to the General Counsel 's contention as regards its refusal to bargain in good faith with the Union is that it was the Union 's adamant stand and insistence upon a union-shop clause in its proposed contract that was the cause of the breakdown in negotiations between the parties. There is support in the record for the Re- spondent's contention in this regard. It is quite true that at the time the negotiations abruptly ended on February 5, 1952 , there yet remained three major issues upon which the parties could not agree. They were ( 1) the union shop, (2) extra pay for holidays , and (3) grievance procedure that provided for final settlement by means of arbitration . In addition there was still at issue the following as the undersigned interprets the record : (1) Seniority for the truckdrivers , (2) checkoff of union dues , and (3) a wage increase for the truckdrivers. As the undersigned sees it there had been considerable discussion as regards these issues, particularly as regards the Respondent 's policy concerning the assignment of work for the truckdrivers , and its corollary the rate per hour for trip assignments . The record is not altogether clear as regards the wages of the truckdrivers , except the fact that at the time President Smith presented his so-called "package -deal" for the production and maintenance employees , he, in answer to a query from one of the union negotiators as to this issue, stated in substance that the Respondent was not in a position at that time to make an offer as to these employees . At the same time Smith speaking for the Respondent reiterated its previous position as regards seniority for these employees , and informed those present that its past policy would be retained , that was so to speak that the "driver went with the truck.- 23 Though the undersigned agrees with counsel for the Respondent that the issues described immediately above represented the major differences between the parties at that time, Feb- ruary 5, 1952 , he cannot accept his theory that an impasse had been reached. In the first place, counsel ignores the fact that the union negotiators informed Smith that the "package- deal" offer was satisfactory providing other issues , which to the Union were of equal impor- tance, were worked out and embodied into a written agreement. Secondly, that the Respondent had shifted its position on at least three issues at one time or another during the course of the negotiations , to wit, the union shop , dues checkoff, and seniority for the truckdrivers. Third, that when Hill questioned the Respondent 's method of computing its wage increase offer and was informed that itwas predicated on a year 's earnings and not for the period since the installation of the new fractionating tower as had been promised by Smith at the meeting of October 2, 1951, it was President Smith himself who, piqued at Hill's questioning , abruptly broke off negotiations and left the meeting. Hill's testimony in this regard which is credited by the undersigned follows below. Q. Now, during this meeting did Mr . Smith make any attempt in the course of the meeting to leave? A. Yes, he did. Q. Could you tell us about that, tell us just what happened? A. Well, about around 2:30 or 3:00 o'clock he got up out of his chair, kind of stretched, said he was tired and he would have to be leaving, he didn't have time to stay any longer. Just which meeting are you talking about? Q. February 5th. A. Yes, just that. Q. What happened after that? A. Mr. Herring asked him if he was breaking off negotiations , and he kind of stopped, turned around , and started some conversation with Mr. Herring and went back to his chair and sat down and started in talking again. 2SSee supra for further discussion in this regard. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Now, what finally broke up that meeting? A. Well, I drawed his attention to a statement he had brought down, of profit and loss. We had been talking about holiday pay, and he was figuring on his pay increase by so many cents per barrel of oil that he had run through his refinery, and he brought the profit and loss statement for the end of the year. He had asked for sixty days once to increase his production before he talked money, and another time he asked to wait until he had the figures for November, before he would be able to meet and talk, and I told him I thought it looked like he should have brought the figures on the increased production, and he jumped up out of his chair, walked out of the room and said he couldn't bargain with me, we would have to get another committeeman to bargain, he was tired and he was going to leave. Q. Was that it? A. That's the words I remember. Q. I mean was that the end of the meeting? A. Yes, it was. It was at this point Smith left the meeting. What then transpired has been set forth above. The undersigned is not unmindful of the fact that at the time President Smith left the meeting he too had cause to be irked at some of the tactics of the representatives of the Union, particularly the remarks made by Freeman to him at the meeting on October 2, 1952. At that time Freeman told Smith, in substance, that in his opinion he could do two things (1) set down and negotiate a contract that contained some of the benefits and wages that were prevalent in the industry or (2) go out of the refinery business, and either let his plant rust down or tear it down, lay the employees off after they had assisted him in its destruction, and get out of the business entirely. Such conduct is not condoned by the undersigned. On the other hand he must take into consideration the circumstances under which the remarks were made. To say the least it must be remembered that much of the conduct described above had preceded the occasion upon which the remarks were made. Moreover, it also must be remembered that bargaining sessions are not tea parties and oftimes the parties become restive and acrimonious in their conduct towards one another. They are not conducted in an atmosphere where the niceties advocated by an Emily Post are a criterion to guide the conduct of the individuals engaged in such business. Tempers flare up, things are said by both sides that would be better unsaid. After all the negotiators are human beings and the subject matter before them is most controversial. Though Roberts' Rules of Order might well be of some benefit, the undersigned doubts very much that either side would pay the slightest heed to its contents, or advocate its use as a disciplinary measure. In passing, the under- signed desires to point out that remarks such as the above were made but once, and not reiterated time and again as counsel for the Respondent would have it in his brief, and particularly in his comments on the record. Again a perusal of the record as a whole convinces the undersigned that in spite of the conduct described and found above, the meetings on the whole were conducted in a remarkably clean atmosphere, and comparatively free from epithets thrown back and forth compared with others that have come to his attention in one way or another. That the Respondent itself was not entirely free from the stigma that it attaches to the representatives of the Union is evidenced by Smith's letter to Burden dated January 12, 1952, which is set forth above, in which he insinuates in substance that Burden was conveying confidential information to a competitor by reason of his being a member of the Union's bargaining committee. Under all the circumstances the undersigned in convinced that the less comment he makes on this matter, the better for all concerned. So may it be. On February 8, 1952, the Respondent discharged Herschel Sollman and Henry Chandler. On February 9, 1952, the employees in the unit at the Respondent's plant after considering the discharge of the above employees, and the breakdown in the bargaining negotiations voted to strike the plant. In view of the findings made above, both as to the independent violations by the Respondent of Section 8 (a) (1) of the Act and the separate and independent violation of Section 8 (a) (5) and (1) of the Act, the undersigned finds that the strike which began on February 9, 1952, was an unfair labor practice strike from its inception and continued as such until it was terminated on June 23, 1952, at which time the striking employees unconditionally applied for reinstatement to their jobs. Though the General Counsel insists that the discharge of Chandler and Sollman in alleged violation of Section 8 (a) (3) and (1) of the Act were neces- sary contributing factors to the decision of the employees to concertedly strike the plant, the undersigned for reasons which will be apparent hereinafter deems it unnecessary to find R. J. OIL & REFINING CO., INC. 681 at this stage of the case that the alleged discriminatory discharge of these employees was in and of itself from a legal standpoint an essential and necessary factor to find that their action in this regard constituted an unfair labor practice strike. Suffice it to say that viola- tions of other sections of the Act are just as potent and necessarily would compel a like finding as regards the nature of the strike. Though one might labor no end and rationalize to his heart's content as regards the many facts presented by the above-described conduct of the Respondent, the undersigned deems it unnecessary, since the end result would be the same, that the totality of the Respondent's conduct described and found above supports the undersigned's initial finding in the opening paragraph of this section of his report. Suffice it to say that what has gone before is enough for this phase of the case, Even though the undersigned has found above that the strike which began on February 9, 1952, was from its inception an "unfair labor practice strike," as so called in the vernacular of the day, he cannot ignore the proposition that assuming arguendo he had found the strike to have been economic in its origin that events thereafter converted the activity into an unfair labor practice strike. That such was the case is amply demonstrated in the record. The uncontroverted facts therein show that on March 20, 1952, Burden, wrote the Respondent as follows: OIL WORKERS INTERNATIONAL UNION C.I.O. Lawrenceville Local No. 368 March 20, 1952 Mr. H. P. Smith, President R.J. Oil & Refining Company, Inc. 111 North 7th Street, Terre Haute, Indiana Dear Sir: I have been advised that you have returned from your vacation in Florida. Therefore, I would like to arrange for a conference during the week of March 24th, at a suitable place in Princeton, Indiana, for the purpose of settling the issues that are in dispute between your company and this Union, so that your plant may again be put back in operation and the employees who were on the payroll as of February 9th be returned to their jobs. I would appreciate as much notice as possible as to the date you select during the week of March 24th so that those who have attended conferences in the past in behalf of the Union may be present. Yours very truly, OIL WORKERS INTERNATIONAL UNION, C. I. 0., LOCAL NO. 368 /s/ Hubert Burden Hubert Burden Secretary-Treasurer HB-TC On March 21, 1952, the Respondent replied to Burden's letter of the 20th as follows: 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD March 21, 1952 Mr. Hubert Burden, Sec.-Treas. Oil Workers International Union, CIO Lawrenceville Local No. 368 Lawrenceville, Illinois Dear Mr. Burden: I have your letter of March 20th asking for a conference during the week of March 24th for the purpose of settling issues that are in dispute between our Company and your Union. As you know I have always been willing to meet you in the past when it was convenient to both parties, however, it is my policy not to meet and discuss any issues in dispute while the plant is involved in a strike. If you will order the men back to work and they go back to work, I will then meet you as soon as possible after they return. I will discuss any and all issues involved. [Emphasis supplied.] Since I returned from Florida I have been covered up with work. On top of the strike at the Refinery, the Highway Machine Company struck over a minor dispute. Tom Gallagher business agent for the Machinist Union called me but I refused to meet with him until the men returned to work; they returned- to work and I met with Mr. Gallagher and the Committee and the dispute was settled. Also, the strike on the New York Central Railroad required some of my time and we now have a stampede strike of Indiana coal mines which shut our mines down, the strike had nothing to do with our local property, it is in sympathy with the strikers in the Terre Haute district. The reason I am telling you this is if you have the men return to work the date that I will be able to meet you will depend upon a time when I am not tied up with other matters; I rather think I could meet you within two or three days' notice. I want you to clearly understand that I do not intend to meet with you or any Union Representative and discuss any issues involved as long as the Plant is on a strike. [Emphasis supplied.] Very truly yours, R. J. OIL & REFINING CO., INC. /s/ Henry P. Smith President HPS:1 That an employer is required to meet and bargain with the certified representative of his employees during the course of a strike is so well settled that extensive comment in this regard is deemed unnecessary by the undersigned. Suffice it to say that the Board and the courts in a long time of decisions have so held. The gist of their reasoning in this regard is that it is during precisely such periods that the bargaining process is needed more than at any other time to assist the parties to amicably settle their differences. u As the Board said in the Old Town Shoe Company case, 91 NLRB at page 243, where a similar issue arose. " . . . In this connection the Board has held that the duty to bargain is not suspended during a lawful strike, indeed, the fulfillment of the obligation to bargain becomes doubly important during a strike...." 85 On June 23, 1952, the Union wrote the Respondent the following letter which is self- explanatory: 24 See N. L. R. B. v. West Fork Cut Glass Co., 188 F . 2d 474 (C. A 4). 25 See N L. R. B. v. Highland Shoe , inc., 119 F. 2d 218, 222; Cathey Lumber Company, 86 NLRB 157; The American Laundry Machine Company, 76 NLRB 981. R. J. OIL & REFINING CO., INC. 683 June 23, 1952 Mr. H. P. Smith, President R. J. Oil & Refining Company, Inc., 111 North 7th Street, Terre Haute, Indiana Dear Sir: On behalf of your employees I request that each and all of them who went on strike on February 9, 1952 be reinstated to their former or equivalent positions without discrimination because of their Union or other concerted activities. This request for reinstatement is unconditional and without strings. All of your employees who went on strike February 9, 1952 desire reinstatement, all are ready, willing and able to return to work. Yours very truly, OIL WORKERS INTERNATIONAL UNION, C. I. 0., LOCAL NO. 368 Hubert Burden Secretary-Treasurer Thereafter followed an exchange of correspondence between counsel for the Respondent and the Union as regards the reinstatement of certain of the striking employees. Since many of the strikers are named in the complaint and are of course an issue herein the undersigned will deal with each striker individually below, as well as dispose of the legal issues raised by the pleadings and in accordance with the evidence as revealed by the record considered as a whole. B. The status of the strikers The undersigned has found above that the strike which commenced on February 9, 1952, and was abandoned on June 23, 1952, was from its inception an unfair labor practice strike, and thereafter was prolonged as such by the Respondent's refusal to meet with representa- tives of the Union on March 21, 1952. Consequently, the employees who were on strike were "unfair labor practices strikers" and as such were entitled to reinstatement when they unconditionally applied for such reinstatement on June 23, 1952. 26 In his complaint the General Counsel names the following employees who on or about June 23, 1952, terminated their strike described herein above, and on said date and con- tinuously thereafter requested the Respondent to reinstate them and each of them to the positions held by each of them immediately prior to said strike or to positions substan- tially equivalent thereto: Bobby Eckiss Joseph J. English James Hayes Amos P. Hill Ray Jaquemai John Osborne Robert D. Roney Billy Frank Scott Dick Sloan 26 See infra. 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint further alleges that since June 23, 1952, and at all times thereafter the Respondent has failed and refused to reinstate said employees, because of their membership in, sympathy for, and activity in behalf of the Union, and that by its conduct the Respondent interfered with, restrained, and coerced, and in interfering with, restraining and coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act, and thereby engaged in, and is engaging in unfair labor practices within the meaning of Section 8, sub- section (a) (3) and (1) of the Act. As indicated above, Burden wrote the Respondent a letter on June 23, 1952, in which he requested that each and all of the striking employees be reinstated to their former or substantial equivalent jobs. He further advised the Respondent in the above letter that each of the striking employees was ready, willing, and able to return to work, and that their "request for reinstatement is unconditional and without strings." Thereafter on June 30, 1952, the Respondent wrote the Union and advised it in substance, inter alia, that since many of the striking employees had been restored to their former or substantially equivalent jobs, the Respondent was unable to determine just what employees it had in mind in its letter of June 23, and asked for additional information such as the names and addresses of the striking employees referred to. On August 21, 1952, the Union sent the Respondent a list of names and addresses of the striking employees referred to in its letter of June 23, 1952. On August 28, 1952, the Respondent advised the Union by letter that many of the striking employees named in its letter of August 21, 1952, had already returned to work and further advised the Union that " ... we now wish to state that any employee who desires a job with this Company should report within three days from receipt of this letter to Mr. J. R. Fuller, R. J. Oil & Refining Company, Refinery at Princeton, Indiana." Pursuant to the Respondent's letter of August 28, 1952, a group of the strikers reported at the plant on September 9, 1952, and requested that they be put to work. Among those reporting were Amos Hill, Joe English, Herschel Sollman, Henry Chandler, and Billy Frank Scott. They met with Superintendent Fuller who told them that the Respondent at that time had no vacancies but that they could leave their applications for jobs if they cared to do so. At this point Amos Hill told Fuller that the strikers were not after new jobs but desired reinstatement to their old jobs. The upshot of their meeting with Fuller was that none of them were restored to their old jobs, nor did any of them file applications with Fuller for new jobs. After the incident of September 9, 1952, counsel for the Respondent wrote letters to all of the strikers named in Burden's letter of August 21, 1952, except Billy Frank Scott of whom more anon. These letters will be referred to hereinafter in that section of this report where the individual strikers named in the complaint are disposed of. Conclusion as Regards the Reinstatement of the Strikers Named in the Complaint The Issue presented here causes considerable difficulty particularly as regards the time element. Though the Union wrote the Respondent on June 23, 1952, that the strike was being officially abandoned as of that date and requested that the strikers be reinstated uncondi- tionally to their former or substantially equivalent jobs, there is no substantial evidence in the record that either the Union or the individual strikers made any positive effort to be reinstated to their jobs until September 9, 1952. True, Burden sent the Respondent a list of the names and addresses of the strikers on August 21, 1952. However, this was almost 2 months after he, on behalf of the Union, notified the Respondent of the official abandonment of the strike which began February 9, 1952, and requested reinstatement of the strikers. Hence the question is posed, as the undersigned sees it, as to whether a 2-month delay was "reasonable" under all the circumstances. It must be remembered that as far as the record is concerned, there is no substantial evidence other than Burden's letter of June 23, that the strikers individually or otherwise requested reinstatement until September 9, 1952. Since the record shows that the Respondent's operations were comparatively small, and there is no substantial evidence in the record showing that the striking employees were under such a burden that it was impossible for them to either act concertedly through their exclusive bargaining agent or as individuals to request reinstatement during this 2-month hiatus, the undersigned is persuaded that the rule of reason should apply and that September 9, 1952, is and should be the date that formal request for unconditional reinstatement was made to R. J. OIL & REFINING CO., INC. 685 the Respondent. 27 In other words the undersigned is convinced that a delay of 2 months without any positive action on the part of either the strikers or their agent to turn their formal request of June 23 , 1952, into a reality until either August 21 or September 9, 1952, was "unreasonable" and too great a delay under the circumstances present herein, and it is so found, Consequently, the undersigned will in his determination of the status of the individual strikers named in the complaint use September 9, 1952, as the date formal request was made to the Respondent by the strikers for unconditional reinstatement to their former or substantially equivalent employment. As the undersigned sees it there is no dispute as regard the right of an unfair labor practice striker to his job after the strike has been abandoned and an unconditional request for reinstatement to his former or substantially equivalent employment is made to his employer. The undersigned finds nothing either in the record or in the Respondent 's brief questioning this well-settled rule. Consequently, no extensive rationale on this issue is either necessary or desirable in this an already too lengthy report. Suffice it to say that such has been the rule for years. 28 The record shows that after the striking employees made their request to the Respondent for reinstatement on September 9, 1952 , that there was an effort made on the part of the Respondent to contact the great majority of the individuals named in Burden's letter of August 21, 1952. The Respondent's efforts in this regard will be discussed below as the undersigned disposes individually the employees named in paragraph 14 (a) of the amended complaint. 1. Bobby Eckiss and James Hayes Since the General Counsel dismissed the complaint as to these employees at the hearing, the undersigned deems it unnecessary to comment herein as to them. 2. Ray Jacquemai Jacquemai was not amongst the employees who reported to Fuller on the morning of September 9, 1952. However, he accompanied by one Clem Reinhart did so the next morning, September 10, 1952. They likewise were told by Fuller that no jobs were available at that time, but that they could file an application for employment if they so desired. This they declined to do for precisely the same reasons that Hill and those with him did on the day before when they reported for work. As indicated and found above, Jacquemai like the other striking employees was entitled to reinstatement to his former or substantially equivalent position upon his unconditional offer to return to work . Since he was an unfair labor practice striker he was entitled to his job without any "ifs and ands" and the filing of an application for employment with the Respondent under all the circumstances found herein would have been a useless gesture. The undersigned has set forth above his reasoning in this regard and sees no necessity for reiterating it here. Under the circumstances described above the undersigned is convinced and finds that the Respondent was under a legal obligation to reinstate Jacquemai to his former or substantially equivalent job on the morning of September 10, 1952 , when he reported to Fuller ready, willing, and able to perform his former duties as a laborer. Having found as above there yet remains for disposition the effect of the Respondent's formal offer to Jacquemai to reinstate him to his former or substantially equivalent position in its letter of November 29, 1952. The record clearly shows that Jacquemai received the letter referred to in due course . Pursuant to the offer contained therein , he went to the Respondent's office to see Fuller on the morning of December 3, 1952 , but was unable to do so. That same evening he called Fuller on the phone and asked him about the letter and its meaning. Fuller told him that it meant what it said , that is that the Respondent was offering him reinstatement to his former job ; Jacquemai told Fuller that he would see him 27 See 'discussion on the question of reasonableness in Crosby Chemicals, Inc., 105 NLRB 152. The undersigned is well aware of the fact that the period of time in the Crosby case is not comparable to that involved herein, but nevertheless, he is convinced that the rule is a sensible one and applicable when circumstances fit the rule. 28See Crosby Chemicals Inc., supra, and cases cited therein for the principle in general. 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the next day, presumably about the job. However, he did not report for work the next morning, nor had he done so up to and including December 16, 1952, the date he appeared and testified before the undersigned in the instant proceedings. ThoughJacquemai did not offer any explana- tion for his failure to report to Fuller on the morning of December 4, 1952, the undersigned infers that it was because he received in the mail on the morning of December 4, a subpena from the Board requesting him to appear and testify in the instant proceeding which was to begin Tuesday morning, December 16, 1952, in the Gibson County Court House, Princeton, Indiana. From all of the foregoing and upon the record considered as a whole, the undersigned is convinced and he so finds that the Respondent's offer to Jacquemai to his former or sub- stantially equivalent job as expressed in its letter to him dated December 3, 1952, was bona fide and that his failure to accept its offer at that time, particularly in view of his statement to Fuller that he would report to him the next morning, 29 relieves the Respondent of any further liability as regards Jacquemai. As the undersigned understands the law, all that an employer is required to do under the circumstances described above is to offer to an employee, situated as Jacquemai and the other unfair labor practice strikers were, immediate and full reinstatement to his former or substantially equivalent job. This the Respondent did in its letter of November 29, 1952. The fact that he received a subpena from the Board on the morning of December 4, 1952, matters not a whit, and cannot be set up in mitigation of his failure to report to Fuller on the morning of December 4, 1952. The undersigned's reasoning in this regard is predicated upon two principles; (1) The hearing in the instant matter was scheduled to open on December 16, 1952, consequently Jacquemai had a period of at least 11 days to report for work, and his failure to take advantage of his opportunity during this hiatus was inthe considered opinion of the undersigned inexcus- able; 30 and (2) the mere fact that he was served with a subpena cannot be used here in defense of his failure to take advantage of the Respondent's offer for the simple reason that it would not only be against the public interest to do so, but contrary to public policy as well. All citizens are subject to subpena the same as they are required to serve as jurors when called upon to do so. It is the duty and obligation, indeed the privilege of a citizen to accept his role either as a witness or a juror without complaint regardless of how onerous it may be to him at the time. Nor need he have fear in testifying in a matter involving the public interest since the Congress has well protected him in this regard, if such was Jacquemai's reasoning at the time the subpena was served upon him. Suffice it to say that if Jacquemai felt that the mere service of subpena relieved him of his duty to either accept or decline the bona fide offer of the Respondent then indeed he labored under an illusion. Having found as above the undersigned will recommend that the Respondent make whole Ray Jacquemal for any loss of earnings he may have sustained from the period beginning September 9, 1952, 91 when he unconditionally requested reinstatement to his former or substantially equivalent job and was discriminatorily refused such reinstatement, to December 3, 1952, at which time Respondent made a bona fide offer to reinstate him to his former or substantially equivalent job, which the undersigned has found above he declined to accept, in the mode and manner hereinafter described in the section of the report styled "The Remedy." 3. Joseph J. English English was one of the striking employees who reported for work on the morning of September 9, 1952, and was denied reinstatement for the reason set forth above in the case of Ray Jacquemai. He, like the others who reported that morning for work, refused to file an application for employment for the same reasons as set forth hereinabove. On November 1, 1952, the Respondent's counsel wrote English the following letter: 29 The letter to Jacquemai was on its face an unconditional offer of reinstatement. See Kitty Clover, Inc., et al. 103 NLRB 1665. 30 See Crosby Chemicals, Inc., supra, in re time element. 31 While the undersigned has found that Jacquemai did not report until September 10, 1952, nevertheless the undersigned finds that a positive request for reinstatement was made on September 9, 1952, by the action of Amos Hill and others. For a full discussion of this issue see supra. R. J. OIL & REFINING CO., INC. 687 Mr. Joseph English 204 S. Willard Street Ft. Branch, Indiana Dear Mr. English: The writer is attorney for the R. J. Oil & Refining Company of Princeton, Indiana, and as such offers you your former position with the R. J. Oil and Refining Company. You will be reinstated with your former seniority rights and privileges. It is our understanding that you are now working at Servel, Inc., and under such circumstances we believe that it is advisable for us to give you sufficient time to terminate your position with Servel. For that reason this position, which we are now offering you, will be held open for at least three (30) days from the date you receive this registered letter. However, if you are not desirous of returning we would appreciate it if you would notify either Mr. J. W. Fuller, R. J. Oil & Refining Co., Princeton, Indiana, (Phone 404-W) or the writer, Evansville, Indiana, (Phone 3-3183) that you do not want your job back at the R. J. Oil & Refining Company. With best wishes, I am, Cordially yours, R. J. OIL & REFINING COMPANY By Arthur R. Donovan KAHN, DEES, DONOVAN & KAHN Attorneys for R. J. Oil & Refining Company Pursuant to the above letter English called on Fuller on November 3, 1952. English's version of what transpired at that time is set forth herein below: Q. (By Mr. Marcus) Now, could you tell us what the conversation was on November 3? A. Well, I went up there, it must have been around eight o'clock in the morning, but he wasn't in, and Mr. Rebone said he would be in about noon, so I went back again about noon, and he still wasn't there, and I went back again about one o'clock, and I waited until about two, and Mr. Fuller came in, and he invited me into his office, sat down, and he asked me, or else he got out a copy of the letter, read it, and I told him about receiving the same thing, and he asked me if I wanted my job back. Well. I didn't know. I was kind of in a daze about ft. I didn't understand exactly what it was all about. He said the letter pretty well explained itself, and I could have my job back with the company if I wanted it, with my full seniority rights and privileges, and so on, went along with that part of it. Well, we talked a little bit and I asked him what his standing would be if I did come back with the company and District 50, and he told me that the boss is not supposed to have any standing with men, if a man done his job right, that was it. So I told him that under that condition I thought I would let the job ride for a while, an if the courts ruled in our favor I would come back with the group of men, and if it ruled against us, I would probably be better off with the job I was on at the present time, and that just about finished our conversation. [Emphasis supplied.] On the next day, November 4, 1952, counsel for the Respondent sent English a letter in which he reminded him that he had been offered his former position by Fuller, at their meeting on November 3, 1952, and that he had declined the offer of reinstatement. A few days later English changed his mind and went to Fuller on or about November 16, 1952, and requested that he be reinstated to his former job. From what the undersigned gleans from the record this was agreeable to Fuller and it was agreed that he should report to work on the following Monday, November 24, 1952. However on or about November 17, 1952, he received another letter from counsel for the Respondents in which his conversation with Fuller on the night of the 16th was construed as an application for employment and 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was advised that it would be given due consideration as such if and when the Respondent had a job open and available. After receiving this letter English did not report for work on November 24, 1952, and since that time has made no further effort to secure his former job with the Respondent. Under the circumstances found above and for precisely the same reasons as set forth in the case of Jacquemai above, the undersigned is convinced and finds that English foreclosed himself from further consideration for employment by the Respondent by refusing its bona fide offer of reinstatement in his conversation with Fuller on November 3, 1952. Consequently , the undersigned will recommend hereinafter in that section of this report styled "The Remedy" that English be awarded back pay for the period from September 9, 1952, to at which time he unconditionally requested reinstatement to his former job, which was denied by the Respondent to November 3, 1952, at which time the Respondent made a bona fide offer to reinstate him to his former job which he rejected for personal reasons. 4. Richard Sloan Sloan testified that he had made no effort to be reinstated to his former job, but that about 3 weeks before the hearing herein he had a conversation with Fuller who at that time offered to reinstate him to his former job, He declined the offer and told Fuller that he was not interested because he was in business for himself. Sloan was named in Burden 's letter of August 23, 1952, as one of the employees who desired reinstatement to his former job. The Union, acting through Burden, was acting in its capacity as the exclusive bargaining representative of all the striking employees, hence Burden's letter was in effect an uncon- ditional request for reinstatement on behalf of Sloan to his former or substantially equivalent job. For the same reasons as set forth above, the undersigned finds that Sloan made a valid request for reinstatement to his former or substantially equivalent job on September 9, 1952, which was denied by the Respondent herein in the mode and manner described above. It is further found that the Respondent made a bona fide offer to reinstate Sloan to his former or substantially equivalent job on or about November 23, 1952, which he declined to accept for personal reasons. Under the circumstances found above,. the undersigned will recommend that Sloan be awarded back pay from September 9, 1952, to the date the Respondent made a valid offer of reinstatement to him on or about November 23, 1952, which he declined for personal reasons, in the mode and manner set forth hereinafter in that section of this report styled "The Remedy." 5. Robert Lee Roney Roney was employed by the Respondent as a truckdriver. He went out on strike with the other employees on February 9, 1952. He made no effort to contact the Respondent for reinstatement until after he received a letter from the Respondent 's counsel dated November 13. 1952, offering him reinstatement to his former or substantially equivalent job. Upon receipt of this letter he called the Respondent's refinery at once and asked for Fuller who was not there at the time. Thereafter , he made no further effort to contact either Fuller or any other responsible official of the Respondent. In the considered opinion of the undersigned, Roney's failure to make further reasonable attempts to contact the Respondent as regards his reinstatement in response to the Respondent's valid offer of November 13, 1952, pre- cludes him from consideration after that date. Roney's case is parallel to thatof Sloan, consequently for the same reasons the undersigned will recommend hereinafter in that section of this report styled "The Remedy" that he like- wise be awarded back pay from September 9 to November 12, 1952, the date the Respondent made him a valid offer of reinstatement, which he, by his dilatory tactics, constructively refused. 6. Amos P. Hill Hill's activities have been described above. We are only concerned here with the disposi- tion of his status as an unfair labor practice striker. As indicated above, he was one of the striking employees named in Burden's letter of August 21 to the Respondent, and was also amongst those who reported for work on September 9, 1952. At that time he, like the other employees who were with him, was denied reinstatementto his former or substantially equiv- R. J. OIL & REFINING CO., INC. 689 alent employment. Like the others he refused to file an application for employment with Fuller. As a matter of fact it was he who reminded Fuller that the striking employees were entitled to their jobs, that is that they had the status of employees, and that it was unnecessary for them to file an application for employment with the Respondent. On November 5, 1952, the Respondent's counsel wrote Hill the following letter: Mr. Amos Hill R. R. #2 Princeton, Indiana Dear Mr. Hill: The writer is attorney for the R. H. Oil & Refining Company of Princeton, Indiana, and as such offers you your former position with the R. J. Oil & Refining Company. You will be reinstated with all of your former seniority rights and privileges. It is our understanding that you are now working at Servel, Inc., and under such circumstances we believe that it is advisable for us to give you sufficient time to terminate your position with Servel. For that reason this position, which we are now offering you will be held open for at least three days from the date you receive this registered letter. However, if you are not desirous of returning, we would appreciate it if you would notify either Mr. J. R. Fuller, R. J. Oil & Refining Co., Princeton, Indiana, (Phone 404-W) or the writer, Evansville, Indiana, (Phone 3-3183) advising that you do not want your job back at the R. J. Oil and Refining Company. With best wishes, I am Cordially yours, R. J. OIL & REFINING COMPANY by Arthur R. Donovan KAHN, DEES, DONOVAN & KAHN Attorneys for R. J. Oil and Refining Co. Hill did not receive the above letter until sometime around November 15, 1952, due to a change in his mailing address. Shortly after he received it he called on Fuller at his home on November 16, 1952, and talked with him about returning to his job. The upshot of their conversation was that Hill was to report to work when notified by the Respondent. At that time Hill was employed by Servel Inc., in Evansville, Indiana. On November 17, 1952, counsel for the Respondent sent Hill the following letter: Dear Mr. Hill: With reference to your conversation with Mr. J. R. Fuller, in which you apparently indicated that you wanted to return to work, in response to our unconditional offer of November 5, 1952, please be advised that you may report for work on Wednesday, November 19, 1952, at the usual reporting time. You will at that time be reinstated with all your former seniority rights and privi- leges and with the same wages that you were receiving plus any wage increases that may have been given since that time. There will be no discrimination practiced against you by the company. Pursuant to the above letter, Hill reported to work on Thursday morning November 20, 1952. At that time he had a conversation with Fuller in which he was told in substance that the Respondent could not place him on his old job as an operator immediately, but that he would be assigned to the maintenance crew in the yard for a day or two until schedules and the like were worked out. He would receive, however, an operator's rate of $ 2 per hour while working as a maintenance man. Hill accepted Fuller's offer and worked for 3 or 4 days at the job assigned him. In the meantime, he tried to see Fuller about his regular job as an operator, but was unable to do so. On Monday morning, November 24, 1952, he saw Fuller 339676 0 - 55 - 45 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and asked him about being assigned to his regular job. Fuller tried to talk him out of the idea, and suggested that he continue on with the maintenance crew with an operator's pay. He also promised him that if he would continue on the job he would give him a "job over some more men that would come up in the future." Fuller's suggestion was unsatisfactory to Hill and he then asked him about being assigned to his former job as an operator. Fuller told him that he could not do so at that time " ... because the employees at the plant had come in and threatened they might strike if I come back into my former position." 2 Hill told Fuller that he would think it over and let him know his decision later. He continued on the job however and worked out the day. That evening he thought it over and decided to decline Fuller 's offer. That same evening he wrote Fuller the following letter: Dear Sir: Since you are refusing to give me my former position as offered by letters dated November 5th and November 17th, which I received on November 12th and November 19th from your Attorney, Mr. Donovan, and as promised by you, the morning of November 20th when I reported for work, I will not report back to work until you are ready to keep your promise and offer. This does not mean that I am quitting. I am still requesting my former position with the R. J. Refining Company and stand ready to take it with a proper notice. As indicated above, Hill did not return to work with Respondent, and at the time of the hearing herein was working elsewhere in Evansville, Indiana. Fuller's version of the events surrounding Hill's return to work in November 1952 was about the same as that of Hill. The only material difference in their testimony in this regard as the undersigned sees it was that Fuller insisted in his testimony that he could not put Hill back on his regular job immediately because of the difficulty in changing the schedules of the other operators and "bumping" at least one of those then employed as such back to a pumper's job. Fuller did not deny Hill's testimony as regards the possibility of the em- ployees striking if he were put back on his job as an operator as being one of the reasons for his delay in replacing him on his former job. Nor did he deny that he offered him in the future a job over certain maintenance workers that Respondent planned to employ in the future. Conclusion as to Hill Upon the foregoing and the entire record considered as a whole, the undersigned finds that Hill like Jacquemai and for the same reasons was entitled to his former job as an operator on September 9, 1952, when he along with other striking employees reported at the Respondent's refinery and unconditionally requested reinstatement to their former or substantially equiv- alent positions. As an unfair labor practice striker he was entitled to his former job at that time as a matter of law. Moreover, the undersigned is convinced and finds that the Respond- ent's offer to Hill in November 1952 and his acceptance of that offer was not carried out in good faith. By conditioning his acceptance of its offer on the grounds that to restore him to his regular job might lead to a work stoppage amongst the employees who had replaced the unfair labor practice strikers, Respondent clearly did not satisfy its legal obligation. Nor did the Respondent satisfy its legal obligation to restore him to his former or substantially equivalent job by placing him on a less desirable job even though it paid him at an operator's rate per hour. He was entitled to his job as an operator without any reservations whatever. It must be remembered that but for the Respondent's unfair labor practices he would under normal conditions have been still employed as an operator. Consequently, the undersigned will recommend hereinafter in the section of this report styled "The Remedy" that Hill be restored to his former or substantially equivalent position, and be made whole in the mode and manner set forth therein for any losses he may have sustained as a result of the Respondent's unfair labor practices. 32 Quotes from Hill's testimony on direct examination which is credited by the undersigned. R. J. OIL & REFINING CO., INC. 691 7. John Osborne Osborne was employed as a truckdriver at the tune the employees went on strike. February 9, 1952. After the strike was abandoned he went to the Respondent's refinery sometime early September 1952 and unconditionally requested reinstatement to his former or substantially equivalent position , and was advised by Fuller that no jobs were then available , but that there might be in a week or two. Up to and including the date he testified before the undersigned on December 18, 1952, Osborne had made no further effort to secure his former job with the Respondent, However, while he was on the stand testifying in this proceeding, counsel for the Respondent offered him full reinstatement to his former or substantially equivalent employment as soon as he was physically able to report for work. 33 Though Osborne conditioned his acceptance of the Respondent's offer on the condition that the Union herein would still be the exclusive bargain- ing representative of the employees in the appropriate unit at the time he presented himself for reinstatement, the undersigned is convinced that his remarks in this regard were mean- ingless and by no stretch of the imagination could be construed as jeopardizing his original unconditional request for reinstatement in September 1952. The undersigned 's reasoning in this regard is predicated on two principles: (1) The condition imposed if it has any meaning at all is a question of law, and (2) assuming that it was not such a question it still is of no force or effect because he had already made an unconditional request for reinstatement in September 1952, which had been denied by the Respondent. Conclusions as to Osborne Upon all the foregoing the undersigned is convinced and finds that Osborne made a valid unconditional request for reinstatement to his former or substantially equivalent position on or about September 12, 1952, and it will be recommended hereinafter that he be reinstated to his former or substantially equivalent employment and awarded backpay for any losses he may have suffered as a result of the Respondent's unfair labor practices from September 9, 1952, the date the undersigned has found above that the Union made a valid and positive request for the reinstatement of the striking employees to the Respondent. Such questions as wilfull losses and the like will be discussed under that section of this report styled "The Remedy.' 8. Billy Frank Scott Scott was one of the employees who went out on strike on February 9, 1952. He was named by Burden in his letter to the Respondent dated August 21, 1952, as one of the unfair labor practice strikers who desired reinstatement to his former or substantially equivalent employ- ment. In addition he was one of those who reported to Fuller on September 9, 1952, and requested reinstatement to his former or substantially equivalent employment. He was not only denied reinstatement at that time but it is the Respondent's position that it never will reinstate him or reemploy him in any capacity because of his misconduct on the picket- line during the course of the strike. The misconduct referred to grew out of a fight he had with Superintendent Fuller. There are three versions of the incident in the record, Fuller's, Sollman's, and Scott's. All are exceedingly interesting and in the main are corroborative , except as to who participated in the fight. As the undersigned sees it the incident grew out of an exchange of words between Fuller, Sollman, and Scott. At the time it happened, Sollman and Scott were picketing one of the gates to the refinery and were walking or standing on a public highway. It was a warm summer night and during the baseball season, two employees, Lutz and Malone who had been to a union meeting, came by the plant and asked Fuller if they could listen to a ball game over the radio. He told them that they could. When the game was over, which was at about midnight, they left the property. Shortly thereafter, Fuller walked down to the gate and Sollman asked him what Lutz and Malone were doing on the property. A bitter exchange of words followed and in the course of the argument, Scott called Fuller a "son-of-a-bitch." Since these are fighting words anywhere, Fuller went out on the public highway after Scott and the fight was on. 33 At that time Osborne had an injured arm. 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ordinarily, the undersigned would not discuss this incident further for the reason that the record clearly shows that Sollman and Scott were the aggressors and as such should have been either discharged forthwith (since, legally they were still employees ) or denied reinstatement if and when they legally were entitled to it. 34 However, since there are certain portions of Fuller's testimony that go to the question of his credibility as a witness, the undersigned feels that for this reason pertinent excerpts from his testimony therefrom are in order. Consequently , they are discussed and set forth below. For Fuller's account of the affray we turn now to the record: Q. You pointed your finger at him, is that what you are doing on the witness stand? A. That's right, and I looked over there and Sollman was moving, and as I looked that way, Mr. Bill Scott kicked me between the legs in my privates, and as I doubled up I was hit two or three times, two, three, four tunes, I couldn't exactly tell, in and about the face, and Sollman was over there and went down on the ground, and I was kicked in the privates again on the ground, and I was again kicked inside the yard on my back and everywhere else. Q. Who was kicking you? A. Mr. Sollman and Mr. Scott. I was trying to get up, and when I did get up I was kicked four or five times or maybe six times, in the stomach and in the privates, and when I was on the ground Sollman would kick me in the back. Finally, why - - Q. How many times would you say Scott struck you? A. Oh, God, I would say thirty or forty times, but it just got to the point where I was losing my senses, and I crawled on my hands and knees, and I had the car parked in the yard, which is maybe twenty-five feet from there. I crawled on my hands and knees and got to the car and pulled myself up and sat there on my back bumper for a while until I could catch my breath, and walked into the office and looked at myself, and I had a big gash here on the chin and my face was swollen, and I was pretty well bruised all over, and Mr. Tom Stallings, who was to relieve me on the midnight shift, he come in and asked me if I had been run over by a steam roller and suggested - - After the fight was over Fuller went to a doctor for examination, who patched him up and put him to bed. He was away from work for several days as a result of the beating administered to him by Scott, and at the time of the hearing herein was still having some trouble with his back. At this time, the undersigned feels compelled to state that since Fuller's account of the affray came after the testimony of both Scott and Solltnan, that if a separate motion had been made to dismiss as to Scott by either the General Counsel or counsel for the Respondent, it would have been granted forthwith by the undersigned. Such conduct cannot be condoned; consequently, the undersigned will recommend hereinafter that the complaint in so far as Scott is concerned be dismissed in its entirety. In passing however, the undersigned also feels compelled to say that though Fuller names Sollman as a participant in the affray, theundersigned finds to the contrary; Sollman admitted he was present at the time and that it was he who started the argument that led up to the fight, but denied' that he struck any blows. He further testified that he let Fuller and Scott fight it out, and did not participate in the affray one way or another. Scott corroborated Sollman's testimony in this regard. The undersigned saw both Sollman and Scott, and he is convinced that if Sollman had thrown his 195 pounds into the affray with the fury described by Fuller, that the results of the fight would have been either fatal or have necessitated a long period of hospitalization for Fuller. Scott was a small man, an ex-jocky, with lean and muscular arms, and had a well-knit appearance. From the undersigned's observation of both him and Fuller, he is convinced that Scott needed no assistance to whip Fuller in the mode and manner described above. Upon all the foregoing the undersigned credits the testimony of Sollman and Scott that Sollman did not physically engage in the affray. This is not to say that Sollman's role in the incident is to be condoned. On the contrary, the undersigned finds that he was just as guilty as Scott since he was the provoker of the inci- dent, and as such engaged in the sort of misconduct which the undersigned cannot and will 34As indicated hereinafter, the undersigned finds that Sollman had been discharged for cause, but Scott was still an employee. R. J. OIL & REFINING CO., INC. 693 not condone. Consequently, the undersigned will recommend hereinafter that no considera- tion be given him as one of the unfair labor practice strikers.35 At the conclusion of Fuller's testimony, he was queried by the undersigned as to whether or not he reported the assault upon him to the proper law enforcement officials of the county. His reply and statement in the record in answer to this questioning impressed the undersigned and also carried great weight in his ultimate appraisal of Fuller's credibility as a witness. The gist of his answer was that the prosecuting attorney of Gibson County, Indiana, told him that it was useless to file charges against Sollman and Scott. 36 For reasons that are shown in the record itself, the undersigned has no further comment in this regard. Suffice it to say that the undersigned credits only that portion of Fuller's testimony as regards the fight with Scott where it is corroborated by that of other witnesses, for the same reasons here as set forth below in that section of this report dealing with the alleged anonymous threats against himself and family. c. The discharge of Herschel Sollman and Henry Chandler The undersigned has found above that the strike which began on February 9, 1952, was occasioned by the unfair labor practices of the Respondent. As indicated, the discharge of Herschel Sollman and Henry Chandler was the "spark" which touched off the unrest amongst the employees which in turn was due to the futility of their represeitatives to secure a collective-bargaining agreement with the Respondent. Itmustbe remembered that negotiations between the Union and the Respondent had dragged along for approximately 10 months following the Board's certification of the Union as the exclusive bargaining representative of the Respondent's employees. The final meeting of the parties was held on February 5, 1952. As found above, this meeting ended in an atmosphere, which to say the least, was anything but amicable. The negotiators were in a nasty and belligerent mood occasioned by the intemperate remarks of representatives of both sides. It was in such an atmosphere that Sollman and Chandler were discharged, on the morning of February 8, 1952. The Respondent contends that both Sollman and Chandler were discharged for cause, and that their membership in and activities on behalf of the Union had nothing whatever to do with its action in this regard. In the main the Respondent contends that both employees were found asleep on the job by Superintendent Fuller on the morning of February 8, 1952, and that it was for this reason alone that he was compelled to summarily discharge them in view of the fact that their dereliction endangered the property of the Respondent and the lives of their fellow workers. Superintendent Fuller's version of the events leading up to the discharge of Sollman and Chandler was as follows: At about 3 a. in., on the morning of February 8, 1952, he was awakened by a telephone call from an unknown truckdriver who informed him that he had just unloaded a load of crude oil and that he was unable to find anybody around the refinery to sign a receipt for it and asked for instructions as to what he should do. Fuller told him to leave the receipt on the pumphouse desk, and that he would sign it in the morning. The statement of the unknown truckdriver that there was nobody around the refinery at that time of morning caused Fuller great concern. At first he decided to put his clothes on and hurry out to the refinery and see what was wrong, on second thought, however, he decided to call the refinery which he did. He let the phone ring a few times, perhaps for a minute or two and receiving no reply hung up. Since the telephone at the refinery is connected with a large "clanging" bell out in the open where it can be heard by over a large area, he was more concerned than ever and de- cided to leave for the plant at once. He then proceeded to his bedroom and put on his clothes in preparation to go to the plant. This finished he decided to call the plant again which he did, and after listening to the bell ring 4 or 5 times and again receiving no answer he hung up. Fuller then called Joseph Rebone, the Respondent's office manager, and requested that he go to the plant with him. His reasons for requesting Rebone to accompany him were two-fold, first, if something was wrong at the refinery then he would have somebody with him to help out, and secondly, he was afraid to go to the plant alone at that hour, because he was afraid of being waylaid and attacked by unknown persons. His fears in this regard were based upon the 35 Even though the undersigned finds hereinafter that Sollman was discharged for cause, he feels that his position as regards his role in the Fuller incident should be stated here. 36 The record is silent as regards action or consideration by a grand jury. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fact that during the period of negotiations between the Union and the Respondent, he had re- ceived telephone calls from anonymous persons in which they threatened bodily harm to him- self and family. After dressing Fuller got in his car and drove over to Rebone's house which he estimated to be about one-half mile away. After picking up Rebone he drove out to the re- finery which he estimated to be about 32' miles from Princeton, Indiana. On the way out to the refinery they met one of the Respondent's trucks, but did not stop it. Fhller assumed that it was the truck that had delivered the load of material at the refinery, and was manned by the unknown driver who had a few minutes earlier called him at his home. Fuller also assumed that the driver was one of the Respondent's employees since he called him "Scotty" in their telephone conversation, this being his "nick-name" amongst the employees. They arrived there at about 3:15 or 3:20 a. m. What occurred thereafter is best told in Fuller's testimony on direct examination, since it is in narrative form the undersigned feels that it should be set forth herein as it appears in the record. Accordingly it follows below: A. We drove out to the plant and went in the West gate, which was customary, and I drove in on the property there, and we parked down there by what we call our gasoline pump, which is down on the roadway, and I got out and looked around, and I didn't see a person around there at all. Q. Approximately what time was this? A. This was after three o'clock, I would estimate it might have been 3:15 or 3:20, something like that. Q. All right. A. I got back in the car and pulled it over to the West side of the office, which is the regular parking place for office employees, and we got out of the car and we walked be- tween two buildings, one happens to house the lavatory and the shower room, and the other houses the office and stock room, and as we walked up through there, there is a floodlight on the corner of the stock room, and it was lit, and we looked in the stock room and all of the lights were on in the stock room, but no person was in there. Ordinarily that is allowed as a smoking place in the plant, the stock room. I looked to see if anybody was in there, and I turned around and noted all of the lights were out in the shower room and the window open. Q. The windows what? A. The windows were open in the shower room. Q. How much open? A. They were wide open, they were held open with wire. Q. This was in the winter time. Would you explain why the windows would be open? A. I had seen them open during the daytime, owing to the fact that we had just had a standard valve on the radiator there, and from throttling it at different times, I imagine the valve would leak out partially, and they usually during any other time leave the windows open to kind of control the heat. Q. Okay, go ahead. A. I stuck my head in under the window, looked in there, and Mr. Sollman was stretched out on the bench with a jacket or some piece of wearing apparel under his head, and he had another jacket over his shoulder, in fact, he was snoring. I brought this to Mr. Rebone's attention, and Mr. Rebone stuck his head through the other window, there were two windows right there that were open, and he noted it, and Joe said, "Boy, listen to him snore." We walked from there, and went over towards the control room, which is north of there, approximately fifty feet from the shower room, and as I walked up there, there was a window open on the corner of the building, and I noticed Chandler sitting in the chair, leaning back against what we callour crude pick-up pump, and as I went to the door, which is also a glass and steel door, he was still there, and I opened this door and walked in there, and Mr. Rebone was following me, and I walked right past Mr. Chandler in the con- trol room, and looked up on thecontrolboard to see if our flow control which controls the amount of fluid going through the unit, plus our top tower temperature controls were on there, and noted our still temperature, which is number 7 on the potentiometer, which we ordinarily leave on there, showed the heater was running between 6:25 and 6:30, which happened to be our crude, our finalheatingof our crude before it goes into the fractionat- ing column, and again I walked on over and checked his log sheet, and there was no weigh-up on there for three o'clock. R. J. OIL & REFINING CO., INC. 695 Q. What time was this, by the tire you got there? A. I would say close to 3:30. Q. And he should have put this reading down at three o'clock? A Yes. Q. When you open this door and shut it, is it a quiet, well-greased door, or what is the reaction? A. It is well greased, but the thing is, it has a steel latch on it, and the door is all steel frame, and there is no possibility, unless -- you couldn't possibly close it without mak- ing some noise. Q. Did Mr. Chandler wake up at all during the opening and shutting of the door? A. He did not. Q Did he wake up while you were in the room? A No, sir. Q. Then what did you do? A. I brought the log sheet, the three o'clock reading that was not on there, I brought it to Mr. Rebone's attention, and we turned around, and I said, "Come on, Joe, let's go and look around the boiler house," so we went over there to the boiler house, to the south door of the boiler house and proceeded north to the number 1 boiler, and Mr. Ferguson was sitting in front of the boiler, facing the boiler, reading a magazine, and I touched him on the shoulder, and he jumped, and I said, "Mr Ferguson -- or Verner -- follow me, will you? ", and he followed me until we go to, I would say about half way between the crude heater and the shower room, and I told him to go on over and wake up Mr. Chandler and Mr Sollman was asleep in the shop. As I reached in there, I looked around and Ferguson was still there and Itoldhim, "I want you to go on over and wake up Chandler", and he mumbled something and said, "I have to go check my boilers" and headed for the boiler house, and I reached in and turned on the light, and hollered to Mr. Sollman "Get up, Soll " As indicated above Ferguson, the boiler attendant or fireman, did not immediately comply with Fuller's instructions as regards awakening Chandler but returned to his own working place for the alleged purpose of checking the boilers that he was responsible for. Ferguson was called as a witness for the General Counsel, on cross-examination he testi- fied in substance that he did not immediately comply with Fuller's instructions to go to the control room and awaken Chandler for the reason that he felt that Chandler might be asleep or dozing, and he wanted to givehim a chance to awaken so that he would not be an eye witness to the incident. His reasoning in this regard was based on the fact that in the past he had gone into the control room and found Chandler dozing , but had never discovered him actually sleep- ing on the job. He also testified that the same was true as regards Sollman. He did not report these derelictions to either Fuller or any other person connected with management. Rebone, who as indicated above accompanied Fuller to the refinery and was with him at the time of the Sollman and Chandler incidents, testified at the hearing herein and in the main corroborated Fuller's version of what transpired at the time. Shortly after Fuller instructed Ferguson to go over to the control room and awaken Chandler, he made a quick trip around the refinery, and finding everything else in order got in his car and accompanied by Rebone returned to Princeton. The next morning Fuller called Chandler and Sollman into his office and summarily dis- charged them for sleeping on the job. Here again Fuller's testimony in this regard is likewise recited in narrative form, and the undersigned feels that since such important testimony is best told in the witnesses' own words, it is set forth herein below, Q Will you relate the conversation to the Trial Examiner that you had with each one of these individuals? What was said to you and what was said by them? A. Mr Chandler come on in and I called him into the office and told him about his sleeping in there, and Mr. Chandler admitted dozing He said, "You know a man will doze", and I said, "Chandler, whenever I walked in there and walked in front of you, opened the door and everything else, and you didn't even move, I would call that more than dozing, you were actually sleeping" Ialsobrought up about him not being up at three o'clock, and brought to his attention that he had already got it on now, according to me it was on there to cover up, and he didn't have any comeback on that, and I told him "I 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD am sorry, but we just couldn't stand to have a man sleeping on the job, due to the tre- meious amount of danger", and I discharged him Q Now, in the case of Sollman9 A. He come in , I called him into the office and told him about sleeping in the shower room, and he admitted that he was on the bench with wearing apparel under his head, but he said he was just resting , and I told him that Joe and I had heard him snoring and looked in there and saw him fast asleep, and I was discharging him for sleeping on the job, neg- lect of duty. [Emphasis supplied.] Herschel W. Sollman was first employed by the Respondent in April 1948. He first worked as a laborer or maintenance man, and then as a boiler fireman . In the fall of 1949, he was pro- moted to a pumper's job , and was employed as such up to the time of his discharge on Feb- ruary 8, 1952. As indicated above, Sollman was the first employee of the Respondent contacted by Messrs. Burden and Freeman in October 1950, at the time they decided to organize the Respondent's employees . At the time he met with the union officials he was given application -for-member- ship cards in the Union to distribute amongst the Respondent's employees . He was also instructed to secure as many signed cards as he could so that the Union could file a petition for certification of representatives with the Board He agreed to cooperate with the Union organizers and to distribute the cards amongst his coworkers. Later he turned the cards over to Henry Chandler . Between the two of them they succeeded in signing up a majority of the production and maintenance employees in the plant. The record clearly shows that thereafter Sollman continued his activities on behalf of the Union up to and long after his discharge on February 8, 1952. According to Sollman' s credible and undenied testimony in the record , he was reprimanded and disciplined by Fuller in the early part of November 1950 for negligence in handling a storage tank full of casing-head gasoline , in that he allegedly permitted a safety valve on the tank to freeze over during a sleet storm causing the tank to expand . He was discharged by Fuller for this offense , but rehired a few days later . At the time he was rehired he had the following conversation with Fuller: Q. At the time Mr Fuller discharged you, did he say anything to you9 A. He just said I was through. He said I was nothing but a troublemaker , and he would get rid of me and get rid of all of the trouble. Q. Did he say what the trouble was9 A. Not at that time , but when I came back - - MR. DONOVAN. You have answered the question. TRIAL EXAMINER SHAW: Just a minute. He is qualifying his question. He said he didn't say it at that time. Well, go ahead. THE WITNESS: The next day when I came to get my check , he still didn't have it, and he told me then that he could use me working around there if I kept my nose clean, so I asked him what he meant by keeping my nose clean, and he said for me not to have any further dealings with the union in any way, shape or form. Q. (By Mr. Marcus) Did you have a long talk with Mr. Fuller at that time, or was it short, just a short chat? A. I would say about half an hour or forty-five minutes. Q. What other things did you talk about, do you recall9 A. Well, he told me my work was alright, but he just didn 't like my attitude. Q. What did you say to Mr. Fuller's statement or proposition A. Well, I told him at that time I would have to think it over. A few days later he had another conversation with Fuller at which time he agreed to accept Fuller's terms and return to work. His testimony in this regard is also set forth below: Q. Now, following this talk with Mr. Fuller, didyou have any further contact with him? A Yes. Q. Could you tell us what that was9 A. It was on Sunday morning Q Was that the next day or two days afterwards or when A. That was two days afterwards. I was fired on Friday, and I never saw him on Satur- day, and on Sunday I went back and talked to him at the office, and I told him then that I would accept his proposal. Q. This was on Sunday9 R J. OIL & REFINING CO., INC. 697 A. Yes Q. What did Mr Fuller say to that? A He said he would put me back to work on my old job , and we would shake hands and start off with a clean slate Q. Was anything said at this time on Sunday about the union? A Well, it was brought up again about my not having any dealings with the union, it was refreshed for me not to have anything to do with it Q. You say Mr. Fuller said this? A. Yes. Q Then you did go back to work, did you not? A. Yes Q. As a matter of fact, you were compensated for the two days' work that you missed, weren't you? A Yes. Since the above incidents occurred more than 6 months prior to the filing of the charges herein they are barred by the provisions of Section 10 (b) of the Act, and of course no findings of fact can be predicated thereon. The only reason that testimony in this regard was permitted and admitted in evidence at the hearing herein was because it has been in the past and still is the policy of the Board to admit such testimony for "background " purposes only, as will be shown hereinafter the undersigned has so considered it in his ultimate findings as regards the issues herein Sollman's version of his discharge and the events leading up thereto was as follows. As indicated above, the Respondent operates its refinery on a 3-shift basis, each shift being 8 hours. On each shift, except during the daytime there are only 3 employees on duty, the opera- tor, the pumper , and the boiler fireman The shift that Sollman worked on was the 11 p. m. to 7 a. m. shift. On duty with him at the time the events with which we are concerned herein occurred were Henry Chandler , operator in the control room , and Vernor Ferguson , the boiler fireman According to Sollman the night of February 7-8 was cold and damp and that after making his usual rounds , and engaging in other duties, he went to the dressing room to warm up Here again the undersigned is convinced that the witnesses ' version of what transpired is best told in his own words, consequently it likewise follows below: Q. Now, on this night of February 7 and morning of February 8, could you tell us what you did after you went on the shift, do you remember? A. The first thing I did was go out and gauge the crude tank for Chandler , and brought the gauge in and put it on the sheet , and then I went and checked my rundowns to see how full they was, to see if any of them was getting full or not, and see if I had to switch the tanks, or transfer any out, and wehad a temporary air compressor sitting out in the yard, and it got to acting up, and I had to refuel it and add a little oil to the engine, and it wasn't running right, and I worked on it, from oh, I guess about an hour and a half or two hours, something like that, anyhow , out there in the cold , and after -- it was about three o'clock, I guess , when I went over to the stock room Then Chandler went to the control room, and I went to the rest room Q You went where? A. The rest room, the dressing room. Q Now, how was the weather that night? A. It was damp and cold. Q What did you do in the dressing room? A. Well, first I went to the toilet and then I went over to the radiator to warm up Q. Have you ever done that on any other nights? A Sure, it was the only warm place you had to get warm. Everything else was cold around there. Q. How is the power house, is that warm? A. Well, it is fairly warm , but it is noisy in there too . You couldn't hear nothing, if a truck came in you couldn 't hear nothing TRIAL EXAMINER SHAW: Where? THE WITNESS: The boiler house. TRIAL EXAMINER SHAW: That's where you went to get warm? THE WITNESS: No, I went to the dressing room. 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chandler's version of the events leading up to and following his discharge follows below after the undersigned's disposal of the issue as to Sollman Conclusion as Regards the Discharge of Herschel Sollman and Henry Chandler It has been well said that "hard cases make bad law " Such is the case here. The disposition of the issue as regards the alleged violations 8 (a) (3) by the Respondent's discharge of the two employees has been a hard one It has required long and careful consideration by the undersigned. The difficulty in this case as well as in so many others of like nature is the res- olution of credibility. This is always difficult and requires long and careful analysis by a trier- of-the-facts before he is able to satisfy himself as to the issue Having resolved it after such contemplation he has no alternative but to be specific in his findings and let the chips fall where they may. At this time, the undersigned feels compelled to dispose of and set forth herein his impres- sion as regards Fuller and his credibility as a witness Frankly, he impressed him as garrulous and thoroughly unreliable There is much of his testimony that simply is unworthy of belief. In fact one would of necessity have to be most naive and gullible to find otherwise. For example, the undersigned cannot accept his version of the events that led up to his hurried trip to the refinery at 3 a. in. on the morning of February 8, 1952. Disregarding the time element, that is the business of telephoning here and yonder, dressing, picking up Rebone at the latter's home a half mile away, and then driving 32' miles to the refinery in the space of 20 minutes by his own calculation, there is one phase of the incident that is most amazing, and that is that he had no idea who called him on the phone. When this testimony is considered in the light of the entire record, it simply doesn't have the slightest ring of truth for the following reasons. To begin with the record is replete with testimony by witnesses called by both the General Counsel and the Respondent to the effect that each truckdriver drove only the truck that was assigned him. Since at this particular time the Respondent had in use only 5 or 6 trucks 37 and each had its own driver, then why was he unable to state to the record who was driving the Respondent's truck, that according to his own testimony passed him on his way out to the refinery that morning and which he assumed in his testimony before the undersigned was manned by the truckdriver who had so recently called him at his home? This testimony be- comes of increasing importance when it is considered in the light of his other testimony, that the so-called unknown truckdriver called him "Scotty" in the telephone conversation which he stated on the record vfas his nickname amongst the employees at the plant. Again why did he not produce the delivery slip for the alleged truckload of oil that was supposed to have been delivered by the unknown truckdriver, when he was queried about it at the hearing? So His explanation in regard to the anonymous telephone calls in which he and members of his family were threatened with bodily harm during the course of the bargaining negotiations calls for sober reflection and careful consideration. The undersigned cannot and does not credit his testimony in explanation of his failure to notify the responsible officials of the county as re- gards the alleged threats for the simple reason that he does not believe that law and order has deteriorated to the extent that a citizen considers it useless to report,such matters to those entrusted to enforce the laws. A further reason is the fact that he admittedly never mentioned it to the responsible officers of the Union at the negotiating meetings when the incidents are supposed to have occurred, and the further fact that the only incident that he could specifically recall was the occasion when sugar allegedly was found in the gasoline tank of his car Singularly enough he first testified that the alleged misconduct of the anonymous persons oc- curred during the course of the bargaining negotiations, however, he later admitted on cross- examination that the sugar incident occurred some 35 or 40 days after the strike began on February 9, 1952. While we are on the question of credibility, the undersigned feels compelled to dispose of the issue as regards Herschel Sollman here. To begin with he impressed the undersigned as an honest and forthright witness In his testimony he admitted without hesitation incidents which were adverse to his interests He testified in a forthright and impressive manner. His demeanor was excellent. Consequently, the undersigned finds that he was a credible witness. In order to understand the issue presented by the alleged discriminatory discharge of employees Herschel Sollman and Henry Chandler, the undersigned is convinced that a resume 37 The undersigned takes judicial notice of the transcript of the record in Case No. 35- RC-463. 38 His explanation in this regard is rejected by the undersigned. R. J. OIL & REFINING CO., INC. 699 of the Respondent's operations insofar as they are entwined with the duties of the employees involved is concerned . As indicated above, the Respondent is engaged in the refining of petro- leum products . It is a matter of common knowledge that petroleum products, particularly gasoline, oils, and the like are highly inflammable; that gases and vapors that necessarily are either byproducts of the refining process or present in the raw materials are dangerous per se, and that great care must be exercised by those employed around a refinery to keep both the raw and finished materials under control It goes without more ado that fire and resulting explosions and the like are a hazard that must be guarded against . The record is replete with uncontradicted , undenied , and credible testimony that employees around a refinery must be careful and alert in the performance of their duties. The record also shows without contradiction that at the time the events with which we are concerned herein occurred there were three employees on duty . They were as follows; Henry Chandler , still operator , Herschel Sollman , pumper , and Vernor Ferguson , boiler fireman. Each has his separate duties. Chandler as the still operator was vested with more authority than the other employees on duty. 39 It was his duty to record the readings of the various instruments in the control room at regular intervals on a specially designed chart. Conse- quently, he was required to be alert at all times. Both he and other witnesses called by both the General Counsel and the Respondent testified without contradiction that his lob was of such great importance that if the operator on duty went to sleep on the job he should be discharged immediately . In addition, they testified that the job was of such a nature that a momentary dereliction of duty on the part of the operator on duty might well endanger the lives of other employees and cause considerable damage to the property of the Respondent . As the under- signed sees it the control room was the "nerve -center" of the Respondent 's operations, and it goes without more that the operator in charge was under great responsibility not only for his own safety but also that of his fellow workers. The pumper's duties were for the most part out in the open. It was his job to check the tanks, pipelines , valves, and other equipment , particularly that which was not under the direct view and responsibility of the operator and the boiler fireman. Like the operator , the pumper was required to be up and around and 4lert at all times to guard against breakdowns , explosions, fires, and the like. The boiler fireman's duties require him to be near the boilers in the boilerroom . He like- wise was charged with great responsibility , particularly to watch the water level and the fires and the various "gadgets" that areappurtenant thereto . Like the still operator and the pumper, he too must be alert and up and around at all times. The undersigned is convinced from the record as a whole that Fuller 's testimony as regards the motivation for his trip to the plant on the morning of February 8, 1952, was pure fabri- cation. He is also convinced that there never was a telephone call from a truckdriver or any one else for that matter , and that he went to the plant with the idea in mind of catching either Sollman or Chandler asleep on the job In the considered opinion of the undersigned there is ample support in the record for this finding. For example Fuller , according to his own testi- mony as the undersigned interprets it, had a phobia for having witnesses to actions he felt compelled to take against employees under his supervision for derelictions of duty. This is evidenced in the record by his testimony as regards the circumstances surrounding the dis- charge of Clifford Hill. In the case of Hill he caught him asleep on the job on two occasions. On the first occasion he had no witnesses to Hill 's condition and had done nothing one way or another , such as awakening him at the time or summarily discharging him for his dereliction of duty, but on the second occasion he took pains to secure a witness before he took any action. His testimony in this regard follows below: Q Will you relate to the Trial Examiner the time, date and place , and incident, of Mr. Hill's discharge? A I don't remember the date. I remember the time. I come out one morning about six o'clock, out to the plant , and it is customary for the boiler fireman on the midnight shift, which is eleven to seven shift, to clean up the shower room and the stock room, and I noted it hadn't been done , and I walked over to the boiler house to tell the boiler fireman 39 Though the undersigned finds that neither Chandler nor the other operators were super- visory employees within the meaning of the Act , nevertheless , the record clearly shows that they have a greater degree of responsibility than either the pumpers or firemen. The record also refers to Chandler as still operator, operator , and control- room operator, since all titles are descriptive of his duties they are used interchangeably herein. 7 00 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about it, and askhimifhewasgoing to do it before he went off shift, and I couldn't find the boiler fireman. I walked back to the stock room, and lit a cigarette in the stock room and stood in the doorway. It was warm weather at that time, and I noted Mr. Clifford Hill getting up from theback seatofa car, from the stock room to where he had his car parked by the boiler house, you could definitely see sleep in his eyes, and I let the issue go by at that time , figured possibly he might straighten up, and the next morning I come out at six o'clock and this Clifford Hill, I looked for him again, because the shower room and stock room was not cleaned up, and I walked up to the car again and he was fast asleep in the back end of the car, so Iwent on over and looked for the pumper who was Jim Osborne that night, and he was up on this number 9 tank, gauging, taking morning inventory, and I told him to come on down and lay his gauge tape down, and I took him to the boiler house and out to the south side of the boiler house where Clifford Hill had his car parked, and showed Clifford Hill sleeping there, and I woke Clifford Hill up and told him to get up and when his shift was through, to please come in the office. Q. This time you really caught him sleeping9 A. Yes, sir. Q. The first day you didn't have real proof? A. That's right. Q Then what happened9 A. He came into the office and he denied sleeping, and I told him, I said, "Jim Osborne and myself saw you sleeping," and I said, "I am sorry, but you are going to have to be discharged, we don't allow that on our property." Q. And he was discharged? A. Yes, sir. Such is the case here as theundersigned sees it. It explains Fuller's reasons for requesting Rebone to accompany him to the plant and his statement to employee Vernor Ferguson on the morning of February 8, 1952, to follow him and to go over and wake up Sollman and Chandler. Upon the foregoing and upon the record as a whole , the undersigned is convinced and finds that the reasons advanced by Fuller as the motivation for his trip to the refinery at around 3 a. m. on the morning of February 8, 1952 , were mere pretext and that the real reason was because he had an idea that he might possibly catch either Sollman and Chandler asleep on the job, and thus not only have a justifiable excuse for discharging them but also a witness to the incident. The undersigned is also convinced that Fuller had a "hunch" that there was a good chance of catching at least one of these employees in a compromising position that would justify disciplinary action. His reasoning in this regard is predicated upon the fact that at the times material herein, there were about 25 employees at the plant including production and maintenance employees and truckdrivers. Surely under such circumstances, knowledge that the employees had been careless in this regard may be imputed to the plant superintendent For example, Fuller's experience in the Hill incident described above compels such an in- ference. Having found as above, the question next arises as to what was Fuller's real motive for mak- ing the trip to the plant at the hour he did9 After long and careful consideration, the under- signed is convinced that it was to find an excuse to discharge either the one or the other or both under the pretense of cause but actually because of their well -known activities on behalf of the Union in order to discourage the remaining employees in their attempt to exercise the rights guaranteed them by virtue of Section 7 of the Act. It must be remembered that Sollman and Chandler not only were instigators of the union activities amongst the employees, but were also on the bargaining committee. A further factor is that the Respondent was well aware at the time that its employees were in a mood for strike action. That this is so is evidenced by the uncontradicted and undenied testimony of Herring to the effect that President Smith in their conversation following the latter's withdrawal from the meeting of February 5, 1952, told him what the employees should do if and when they struck the plant. 90 As the undersigned sees it Fuller reasoned that by discharging these 2 outstanding union members the remaining em- ployees would be impressed to such an extent that they would follow 1 or perhaps 2 courses, (1) abandon their potential strike, or (2) so weaken and divide them that they would repudiate the Union. Of course there is no direct evidence in the record that this was Fuller's intention and that his activities and conduct were predicated on such an assumption, on the other hand, 40 See above. R. J. OIL & REFINING CO., INC. 701 however , there rarely is any direct evidence of an employer 's motivation in such situations and it is only from facts such as found above that such inferences may and have been drawn by the Board in innumerable cases with full approval of the various circuit courts of appeals and the Supreme Court. Consequently , the undersigned finds that the Respondent 's real motive for discharging Sollman and Chandler was to discourage its employees in the exercise of their rights as guaranteed in Section 7 of the Act. Having disposed of the motivation behind the discharge of Sollman and Chandler, let us now look at the record as a whole for the purpose of disposing of the General Counsel's con- tention that the discharge of these employees was likewise violative of Section 8 (a) (3) and (1) of the Act. To say the least we are here confronted with as difficult a problem as one will run across in many a day regardless of the fact that the undersigned has found above that the motivation for the discharges was the Respondent ' s animus towards the Union and the fact that it had been certified as the exclusive bargaining representative of its employees. In passing the undersigned feels compelled to make the observation that as he sees the record, the Respondent 's briefs, and the general tone of the whole affair, he is convinced that President Smith had a particular dislike for the Oil Workers Union as such, and not against unionization of his employees generally so to speak. In other words , the undersigned is con- convinced that Smith personally simply had nousefor the particular Union involved herein Of course this impression means nothing one way or another from a purely legal standpoint since it is the right of the employees alone to select their bargaining agent: but it does go to ex- plain much of the above-described conduct. Having disposed of the question as regards the Respondent 's motivation for Fuller's trip to the plant and his subsequent conduct on the morning of February 8, 1952 , we must now face the issue as regards the actual discharge of Sollman and Chandler . The question posed is this, were these employees discharged for cause or for their membership in the Union and their activities on its behalf? If the former , the Respondent has not violated the Act, if the latter, it has. Even though an employer may have been motivated in the first instance to discharge an employee on account of his union sympathies and activities , he may nevertheless discharge him for cause if the cause is of such a serious nature that its continuance or repetition in the future will or does at the time endanger the lives of his fellow workers and the property and/or investment of his employer . Mere membership in and/or activities on behalf of a labor organi- zation neither places a halo around him-or guarantees him against discharge under such cir- cumstances. 41 In the case of Sollman , the undersigned is persuaded by his own testimony that grounds for discharge existed It must be borne in mind that Sollman admitted that after having been out in the cold and damp air for about 11 hours , that he retired to the lockerroom , pulled up a bench close to a radiator , removed his jacket , rolled it up and placed it beneath him and stretched out on the bench with his feet propped up against the warm radiator . He was in this position when Fuller saw him. He denied he was asleep . Though this may be true , nevertheiess, the undersigned cannot ignore the fact that hehad at least assumed the posture, and to all appear- ances had settled himself for a long winter 's nap Even though the undersigned has found that Fuller in the main was an unreliable witness and that Sollman was otherwise , he cannot ignore the facts as set forth above. Moreover, theundersigned is convinced that regardless of whether Sollman was sleeping , dozing, or resting he at least was in a position that was most conducive to the encouragement of either state. Where one slides off from resting to dozing and then to "blessed sleep" is too deep a question for the undersigned to fathom , particularly when such a state of being has disturbed and baffled others better qualified than he to resolve. Suffice it to say that most of us have atone time or another experienced and enjoyed each in its separate state. Upon all of the above and the record considered as a whole , the undersigned is convinced and finds that at the time Fuller came upon Sollman in the lockerroom under the circumstances described above, that he as the Respondent 's superintendent was justified in concluding that Sollman was asleep and that his subsequent action in summarily discharging him was a proper exercise of an employer's prerogative to discharge an employee for cause . It must be re- membered that we are dealing with a refinery that uses casing-head gasoline, an unpredictable and volatile fluid inter alia in its refinery process. There is a real and present danger to life and property around such an enterprise using this and other highly explosive materials at all times. Alertness of necessity must be the rule, rather than the exception . While it is true that a refinery such as the Respondent's might operate for years without mishap, nevertheless, it 4' See West Texas Utilities, 94 NLRB 1638. 7 02 DECISIONS OF NATIONAL LABOR RELATIONS BOARD need happen but once. Experience has shown that one who works in such an atmosphere needs to doze off to sleep but once to cause irreparable injury There are no rehearsals after the accident occurs. The atmosphere is unlike that found say in a bookstore or a china shop. The rules against sleeping in any of its various stages is a reasonable and necessary rule around a refinery. For the reasons set forth above, the undersigned is convinced and he so finds that Herschel Sollman was discharged for cause. Consequently, the undersigned will recommend that the allegation in the complaint as to him insofar as it alleges that he was discriminatorily dis- charged by the Respondent in violation of Section 8 (a) (3) and (1) of the Act be dismissed in its entirety. Now as to Chandler. The undersigned has set forth above Fuller's version of the incidents that lead up to the discharge of Chandler. They will not be reiterated here He has also commented upon and described Chandler's duties at the time of his discharge, consequently, no further comment is necessary herein in this regard. All that remains to be done as regards this issue is to dispose of it. This is done below. Chandler was first employed by the Respondent on March 22, 1948, as a still operator. He was so employed continuously until his discharge on the morning of February 8, 1952. As indicated above, he joined the Union in October 1950, and was active on its behalf up to the time of his discharge His activities in this regard have been fully described above. They likewise will not be reiterated in this section of the report. He not only was the chairman and spokesman for the local group, that is themembers of the Union at the Respondent's refinery, but also was vice president of Local 368. Chandler's account of his discharge was as follows On the morning of February 8, 1952, he went over to the office at about 7 a. m. to turn in log sheets, which contained a record of the night's operations, and at that time saw Fuller who told him to report back to the office after he had been relieved. Shortly thereafter, he returned to the office and saw Fuller, who told him without any preliminaries that he was discharging him because he had caught him asleep on the job at 3 a m. At the time Fuller did not relate to him the story about the truckdriver and the delivery of the oil which has been described in detail above. Chandler denied that he had been asleep. He also denied on cross-examination that he told Fuller that he had been "dozing." He further testified that it was nothing unusual for truckdrivers to deliver oil and other materials on the night shift, but that since it was not his responsibility to receipt for merchandise or to deal with the truckdrivers, he consequently knew nothing of the incident as related by Fuller in his testimony. He further testified that at the time he delivered the record- ing charts to Fuller on the morning of his discharge, the 3 a in. recordings were inserted therein In Fuller's account of the events surrounding the discharge which has been set forth in detail above, he testified in substance that he and Rebone first saw Chandler sleeping when they went by the window in the control room They next opened the steel door to the office with some difficulty and walked over and around in front of Chandler and picked up the chart of the night's operations. During all this time Fuller and Rebone carried on a conversation particularly as regards the fact that there was no notation for the 3 a. m readings of the various gauges, gravity tests, etc., that was a necessary and important function of the opera- tor.42 From what the undersigned gleans from the record, their conversation was carried on in ordinary tone and ina natural manner. During all this activity Chandler slept on. Neither Fuller nor Rebone awakened him. As the undersigned understands Fuller's testimony, he didn't awaken Chandler because he wanted Ferguson to witness his condition, as for Rebone even though he was the office manager and occupied an important position on the Respondent's staff, he according to Fuller did not have the authority to awaken a sleeping employee. After checking up on Chandler's reports, Fuller and Rebone left him asleep in the chair and proceeded to the boileroom, where they found Ferguson propped up in a chair reading a magazine. Though this too was a violation of the Respondent's rules and regulations, Fuller for the time being disregarded Ferguson's dereliction of duty, and ordered him to come along with him and Rebone to awaken Sollman and Chandler. When they got outside the boilerroom Fuller ordered Ferguson to go over and awaken Chandler. Ferguson, for reasons set forth above, returned to the boilerroom in complete disregard of Fuller's instructions. Though Fuller admonished him in this regard hewenton over to his working place. Fuller and Rebone 42 When Chandler turned the chart in for the night that morning, the readings for 3 a. m. were inserted on the chart. See supra. R. J. OIL & REFINING CO., INC. 703 then proceeded to the locker room and awakened Sollman. In the meantime , as the undersigned understands Fuller 's testimony , he let Chandler sleep on while he made a check around the refinery to see if anything else was amiss. Finding everything else o. k., he and Rebone got in the car and drove home. Shortly before they left, Ferguson after checking up on his boilers went over to the control room where he found Sollman and Chandler. Both asked Ferguson if he had seen Fuller and Rebone and he told them he had. There was no further conversation between them. Conclusions as to Chandler From all of the foregoing, the undersigned is convinced that the answer to the issue as re- gards Chandler is, simply stated, one of credibility. If one is to believe the testimony of Fuller and Rebone then of course Chandler should have been fired On the other hand, if Chandler's denial is credited then in the face of all that has been found above as regards the conduct of the Respondent and the concerted and union activities of Chandler become of major importance particularly when considered in the light of the undersigned 's findings as to the motivation for Fuller's actions on the morning of February 8, 1952 . Viewed in this light, the undersigned is persuaded that once having resolved the issue as regards Chandler's credibility, then the answer must be that he was discharged because of his membership in and activities on behalf of the Union. In the considered opinion of the undersigned the answer to the credibility issue lies not so much in Chandler's denial as it does in the testimony of Fuller himself The undersigned has found above that there is a clear and present danger at all times around the Respondent's refinery operations. The record is replete with testimony by witnesses for both the Respondent and the General Counsel to this effect. Fuller in his testimony described in great detail the potential danger inherent in the operations of the control room and the dire consequences that could result from the derelictions of theoperator in charge. There is page after page of testi- mony in this regard in the record. The undersigned recognizes this condition . Of course a still operator such as Chandler should be discharged if he went to sleep on the job for the simple reason that he not only puts his own life in jeopardy but those of his coworkers as well, let alone the damage that might result to his employer' s property It was precisely for this very reason that the undersigned found above as to Sollman, because the preponderance of the sub- stantial, reliable, and probative evidence considered upon the record as a whole indicated that he had been derelict in his duties and by his conduct endangered life and property. This being so let us look at the record and see just what Fuller did in the face of the clear and present danger he purportedly found as regards Chandler ' s conducton the morning of February 8, 1952 By his own testimony , he let him sleep on regardless of the potential danger that existed right under his nose. More than that he left him asleep in the control room and went over to the boilerroom to get Ferguson to go over and awaken Chandler All through this business Chandler according to Fuller slept peacefully on. Even in the face of Ferguson's disregard of his in- structions he made no move to awaken him, nor did he order Rebone to go over and do so. Despite all this and the fact that time went on just the same, he went about other business and according to his own testimony did not again return to the control room to see if Chandler was awake or not His testimony in answer to a query as to why he did not do so was that when he and Rebone got in the car to drive back to Princeton he saw Chandler up and around the con- trol room and that this was unnecessary. The undersigned simply does not believe that Fuller caught Chandler asleep on the job. Fuller's testimony in this regard whenconsideredinthe light of his other testimony as regards the inherent danger of having a sleeping operator on duty simply doesn't ring true Asa matter of fact, it is incredible that the superintendent of the plant would permit an employee occupying the position of Chandler to go on sleeping in the face of clear and present danger. Why didn't he awaken him at the time he caught him asleep and summarily discharge him on the spot? He not only had the authority to do so but owed a duty to his employer to take prompt action in view of the inherent danger. Again why would he delegate the awakening "process" to an under- ling and then when the latter disregarded his instructions walk off and let the operator sleep on, regardless of the clear and present danger which to say the least was still present? It may be that he felt he should have his witness to Chandler's condition, but the answer to that proposi- tion is that he already had his witness, Rebone, whom the undersigned has found above was brought along for precisely that reason. 7 04 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chandler impressed the undersigned as an honest and forthright witness. His demeanor was excellent, and he answered questions posed him by counsel for all parties in a courteous and forceful manner. At no time was he hesitant or evasive. That he must have so impressed counsel for the Respondent in a like manner is evidenced in the record on pages 183-184 where counsel in a comment as regards the testimony and credibility of the witness Amos Hill had the following to say in a reference to Chandler's previous testimony as regards certain matters: TRIAL EXAMINER SHAW: It was the testimony of Mr. Chandler they couldn' t agree on a union shop, and that's all I said. MR, MARCUS: There were more than three articles in disagreement at the end. TRIAL EXAMINER SHAW: I am taking his testimony as I heard it. MR DONOVAN Your own witness, not Donovan' s, said that . Your own witness said at the end there was union shop, grievances , and holiday pay. MR MARCUS: I don't want to get into any argument. TRIAL EXAMINER SHAW: We won't get in any argument. MR MARCUS: The witness was asked , and those are the only three he remembered. TRIAL EXAMINER SHAW: That was his testimony, and that's all I can go by. You go ahead and handle your case in any way you see fit. Don 't get the idea you are precluded, except I don't see much point in just going back over and reiterating something that has been stipulated or could be. MR DONOVAN: Would it help you, Mr. Marcus , if I stipulated at the end of the bar- gaining , just before the strike , theparties had agreed to all issues except the three issues, namely, union shop , holiday pay and grievance procedure? MR MARCUS: I don't think that is quite accurate . There was no agreement on the check-off. There was no agreement on the -- a number of other matters , not all of the matters which are set forth in this contract -were -- MR DONOVAN: The only thing I am saying , the witness wasn't primed to testify. He testified willingly and honestly he was on the bargaining committee and there were only three issues, and this man has a sheet in front of him, apparently well prepared, and I don't mean disrespect to you, but he has indicated what is bad bargaining and what is good bargaining, and I think the testimony of a spontaneous witness is much better than that of a well coached witness. MR MARCUS: First of all, I don't coach my witnesses MR DONOVAN: I say no disrespect to you, Mr Marcus. MR MARCUS. There is a nice distinction, and this man attended all the negotiation sessions and Mr . Chandler did not . Mr Chandler was asked questions on cross examina- tion that did not have all of the lee-way that may have -- TRIAL EXAMINER SHAW: Proceed , Mr. Marcus . Just try your case in your own way. MR MARCUS We are just wasting time. TRIAL EXAMINER SHAW: All right . I merely threw that out as a suggestion. Upon all of the above the undersigned credits Chandler's denial that he was asleep on the morning of February 8, 1952, and discredits the testimony of Fuller and Rebone in this regard. Having found that Chandler was not asleep on the morning of February 8, 1952, we next must determine the issue as to what was the motivating force behind his discharge. In the considered opinion of the undersigned it was because of his membership in and in particular his activities on behalf of the Union. In the considered opinion of the undersigned such a finding is inescap- able in the light of the record as a whole. The undersigned has heretofore discussed and found that the motivating force behind Fuller's trip to the refinery on the morning of February 8, 1952, was to secure if possible, some evidence of either Chandler's or Sollman's derelictions of duty and if successful in his venture, discharge them under the pretext of cause. Since all of this has been discussed above, the undersigned deems it unnecessary to reiterate it here. Suffice it to say the undersigned is convinced and finds that the reasons advanced by the Respondent for the discharge of Chandler were mere pretext and the real motive for their action in this regard was because of his union membership and activities. Consequently, the undersigned finds that by discriminatorily discharging Henry Chandler on the morning of February 8, 1952, the Respondent herem violated Section 8 (a) (3) and (1) of the Act R J. OIL & REFINING CO., INC. D. The alleged violation of Section 8 (a) (2) In his complaint the General Counsel alleges inter alia that ... 705 commencing on or about June 1, 1952, and continuing thereafter to the present time, Respondent, through its officers , agents, and employees , interfered with, lent support to, assisted and directed the formation, organization, and administration of District 50 by, inter alia: (a) Recognizing District 50 as the exclusive bargaining representative of its employees described in paragraph 6 above; (b) Entering into a contract with District 50 covering the hours, wages, and other terms and conditions of employment of the employees in the unit described in paragraph 6 above. And that by we above-described conduct Respondent did engage in and is now engaging in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. In his brief the General Counsel makes the following comment: There is no evidence in the Record that Respondent dominated, formed, or actively supported District 50. This allegation covers a technical violation of 8 (a) (2), flowing from the 8 (a) (5) allegations . Obviously, if on March 21, 1952, or any prior date, Respondent unlawfully refused to bargain with the Oil Workers, thus converting the February 9 strike into an unfair labor practice strike and prolonging it, then it would be a further violation of 8 (a) (5) for Respondent to recognize another labor organization during the course of the strike. It would aslo, under the theory of Julius Resnick, Inc., 86 NLRB 38, be a vio- lation of 8 (a) (2). The Respondent denies each and every allegation of the General Counsel's complaint in this regard. As the undersigned sees it the Respondent takes the position that its employees became "disgusted and disillusioned" with the Union because it called "unnecessary strikes,"43 made "false promises and so forth," 44 and as a result of their disaffection voluntarily went to an organizer for District 50 and through him selected it as their bargaining representative, pri- marily because it was the dominant labor organization in the community where they lived and worked. 45 That after having made their determination in this regard, District 50 "did as any 43 Quotes from the Respondent's brief. 44See the Respondent's brief at pages 46 and 47 where the following comment will be found and which in the considered opinion of the undersigned sums up the Respondent's position: We call to your attention in this case the many reasons why the Union could have and did, as a matter of fact, lose its majority status as the bargaining representative, with this Company. This Union called two strikes during the year's certification. Each strike was unnecessary and as a matter of fact, the second strike was called to enforce the Union's illegal bargaining demands, when it was insisting on a "Union Shop" or no contract. Also, a strike to force the rehire of employees who had been properly dis- charged for sleeping on the job. No other company in its local had granted a Union Shop to this Union. Further, this Union only made threats but no other proposals. Thus, the CIO Oil Workers Union was not bargaining in good faith. The CIO also claims to have called the strike to force the Company to reinstate two employees (Chandler and Sollman) who were discharged for good and sufficient cause. The Union also made false promises to the employees which were not kept. All or any one act as enumerated above was sufficient cause for the R J. employees to leave this CIO Union, which they admittedly did. The Union has maintained no discipline of its members, and has allowed them to call two unnecessary strikes. This, along with the Union's own "Bad Faith" bargaining with the -Company, has caused the Union's loss of majority to District 50. Again I say, any one of the above, and certainly all of them put together, would be, and was, good and sufficient reason for the employees to decide to leave the CIO Oil Workers Union and join another union which is respected and well thought of in this community. 45 Presumably Gibson County, Indiana. 339676 0 - 55 - 46 7 06 DECISIONS OF NATIONAL LABOR RELATIONS BOARD legitimate Union should do -- went ahead and demanded recognition from the Company, re- ceived its recognition and consummated a contract after collective bargaining with the Com- pany. All of this recognition and contract signing was performed after the CIO Oil Workers Union had already been certified for over a period of one year." 46 As the undersigned in- terprets the record and in particular the Respondent brief he is convinced that the main de- fense of the Respondent as regards this particular issue is that since more than a year had elapsed since the Union was certified by the Board at the time it recognized District 50 as the exclusive bargaining representative of its employees , it had no alternative as a matter of law since (1) the certification of the Union herein was now invalid, and (2) District 50 now repre- sented a majority and it was required by the Act to recognize it as the bargaining representa- tive of its employees. The record shows that on or about May 22, 1952, Joe Batey, an organizer for District 50, called Frank Barnhart its regional director in Terre Haute , Indiana , and told him that certain employees of the Respondent had contacted him about joining District 50 Thereafter, Barnhart went down to Princeton, Indiana , where District 50 already had an active local , and met with two of the Respondent's employees, John English and one Maloney. According to Barnhart these employees told him that they along with other employees were dissatisfied with the Union, and in particular its failure to secure a contract with the Respondent and in addition were vexed with the strike which at that time had been in progress since February 9, 1952. The upshot of the conference was that Barnhart told them that if they secured the signature of a majority of the employees on authorization cards designating District 50 as their bargaining agent then it would accept them into membership and charter the group as a local. Shortly thereafter Eng- lish and Maloney secured the signatures of 15 employees and turned them over to Joe Batey, the local representative of District 50. Batey then turned the cards over to Barnhart, who called Henry P Smith, the Respondent's president, and advised him that District 50 had the signatures of a majority of the Respondent's employees and requested a meeting to discuss inter alia the authenticity of the signatures and the terms of the contract. Smith agreed to his suggestion and a meeting was set for June 12, 1952. The parties met as agreed on June 12, 1952. Present for District 50 were the following: John J. English, Silas ,V Miller, and one Patterson, as employees of the Respondent, and Joe Batey and Barnhart as officials of District 50. The Respondent was represented by Super- intendent Fuller and President Smith. After the authorization cards were checked against the payroll by Fuller and found to be authentic, Barnhart told Smith that they were there for the "purpose to make the contract " Smith agreed, and the representatives got down to the business of negotiating an agreement. After about 4 or 5 hours of negotiation they were in agreement on a contract. It was drafted and taken back to Princeton for approval by the em- ployees of the Respondent who had designated District 50 as their bargaining agent, which they did by unanimous vote. On June14, the parties signed the contract at issue herein. The follow- ing persons affixed their signatures thereto as the representatives of the parties for District 50 - Joe Batey, representative, John J. English, Silas V. Miller, Frank Barnhart, regional di- rector, and approved by A. D. Lewis, Chairman Organizing Committee District, #50 U.M.W.A., and for R. J. Oil & Refining Co., Henry P. Smith, president Though the undersigned deems it unnecessary to dwell at length on th%provisions of the contract in view of his ultimate findings herein, as regards the issue raised by the allegations in the complaint concerning violations of Section 8 (a) (2) of the Act, nevertheless, he feels compelled to set forth herein certain provisions which he has heretofore referred to in the resolution of his findings as regards the alleged violations of Section 8 (a) (5) and (1) of the Act and in his resolution of the credibility of the witness, Fuller. First, let us look at "Article II - Coverage" section I. Here it will be noted that the con- tract covers only the production and maintenance employees, with the usual exclusions of office, clerical, and supervisory, employees etc., and nothing is said as regards the truck- drivers. At the reopened hearing herein Barnhart, when queried by the undersigned as to the truckdrivers, stated that they were not covered by the contract. Consequently, the undersigned finds that the Unit which District 50 claims to represent is inappropriate in view of the finding of the Board in Case No. 35-RC-463 concerning which there has been much said above and in the considered opinion of the undersigned nothing more needs now to be said or added here `n 4sQuotes from Respondent's brief. 47 While it is true that the undersigned approved a stipulation proposed by counsel for the Respondent and approved by the General Counsel to the effect that District 50 as of December R J. OIL & REFINING CO., INC. 7 07 The contract speaks for itself, and its implication is apparent. This being so, a valid question of majority might well be raised.,4s That this is likewise true is the fact that there were at the times material herein approximately 8 truckdrivers or approximately 25 percent of all the employees in the unit found appropriate by the Board. When this fact is considered and the truckdrivers are added to the employees who were still on strike at the time the contract was entered into, then clearly District50didnothave a valid majority when it entered into its con- tract with the Respondent, for the reason that since the strikers were engaged in an unfair labor practice they were still employees within the meaning of the Act and its interpretation by the Board and the courts ina long line of decisions too numerous to treat extensively here- in. 49 Hence, any persons hired by the Respondent as replacements, and the record shows that such was the case, were not "employees" within the meaning of the Act and were subject to replacement by striking employees upon their abandonment of the strike and their uncondi- tional offer to return to their employment. Looking at the contract in the light of the record adduced at the original hearing in Decem- ber 1952 causes one to ponder at great length the testimony of Fuller as regards the bargain- ing negotiations, particularly concerning the Respondent's position as regards the "checkoff" and the personal animosity of President Smith to the inclusion of such a clause in the contract proposed by the Union herein. A perusal of Fuller's testimony at the time he testified before the undersigned in December 1952, and the plain language of the contract that was offered and received in evidence at the reopened hearirgon May 6, 1953, clearly shows that the two are in direct contradiction particularly as regards his testimony concerning the Respondent's stand on the "checkoff" clause proposed by the Union. Frankly, the undersigned was persuaded more than a little by this inconsistency in his final appraisal of Fuller's credibility as a witness. When this is considered in the light of the Respondent's stand as regards the truckdrivers in the representation hearing , at the bargaining meeting, and finally as disposed of in the contract with District 50, the undersigned is convinced that such a consideration buttresses his ultimate findings above as regards the Respondent's violation of Section 8 (a) (5) and (1) of the Act. The contract betweenDistrict 50 and the Respondent is for a period of 2 years, from June 14, 1952, to June 14, 1954. As indicated above the contract contains many interesting provisions. As far as the issues herein are concerned the most important is article III--Recognition. Since it has been referred to above it is inserted below: ARTICLE III- -RECOGNITION Section 1. The Company agrees to recognize the Union as the sole collective bargain- ing agent for all employees specified in Article II, Section i, above. Section 2. The parties hereto agree that new employees will be on probationary basis for thirty (30) days from the date of his employment, after which, if his work is satis- factory, his seniority shall start from the date of his employment. Section 3. The Company agrees to check off from the wages of each employee, in accordance with the expressed terms of a signed voluntary authorization so to do, mem- bership dues, including initiation fees and assessments, in amounts designated by the Union. Said deductions shall be made on the first pay-day of each month and immediately forwarded or delivered to the Financial Secretary of the Local Union Such remittances shall be accompanied by an itemized statement showing the name of each employee and the amounts checked off, together with a list showing employees from whom collections were not made. The undersigned has no further comment as regards the above contract except to say that section 2 of article III is interesting to say the least, since it is part of the "Recognition" clause, and when considered mthehghtofBarnhart's testimony at the reopened hearing herein 18, 1952, had been recognized by the Respondent as the exclusive "bargaining agent for all employees in the bargaining unit" at the hearing herein, his action in this regard is not to be construed as an approval of the unit of employees actually set forth in the contract between District 50 and the Respondent which came to the attention of the undersigned for the first time at the reopened hearing herein at Terre Haute, Indiana, on May 6, 1953. 48However, in view of the undersigned's preliminary remarks above he deems it unneces- sary to dwell at length on this question. 49 See Crosby Chemicals Inc., supra, and cases cited therein. 7 08 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on May 6, 1953, at which time he testified that at that time District 50 had 100 percent mem- bership at the Respondent 's refinery amongst the employees in the unit it purports to represent Be that as it may, however , the important question herein remains to be disposed of. That question is what was the legal effect of the contract between District 50 and the Respondent insofar as the issues raised by the pleadings here is concerned9 Conclusion From what the undersigned gleans from the briefs of the parties, particularly that of the Respondent's, the vital question concerns the legality and application of the Board's policy as regards the "certification year." As the undersigned sees it that principle means a year dur- ing which the certified union is permitted, without unlawful hindrance by the employer, to per- form the functions of a certified representative. The position of the Board is and has been for years that a certification is ordinarily valid for 1 year unless it can be shown that some extraordinary or unusual circumstance has arisen to rebut the presumption of majority status of the certified agent. Its policy in this regard is and has been in the past predicated upon the rule of reason and from a practical standpoint in the light of its role as the administrator of the Act. In other words, the Board in order to administer the Act in an effective manner must insist on at least some semblance of stability in the relations between labor organizations and employers. To adopt a contrary approach would soon lead to chaos in the administration of the Act and render ineffectual the will of the Congress as expressed in the Act. Fortunately, at the time the undersigned is engaged in disposing of this troublesome issue there are before him two United States Circuit Court of Appeals decisions which at first blush appear to be divergent views on the question. Careful examination of the decisions, however, reveals that both reach the same conclusion insofar as the issue herein is considered in the light of the facts found above. The two cases referred to are Mid-Continent Petroleum Corp. v. N. L. R. B., decided by the Sixth Circuit Court of Appeals, and N. L. R. B. v. Brooks, de- cided by the inth Circuit Court of Appeals. In the Mid-Continent Petroleum case which the undersigned considers in line with the theory advanced by counsel for the Respondent insofar as the 1-year rule is concerned, Judge McAllister speaking for the court had the following to say: On the issue whether an employer is required to bargain with a union agent selected by the employees as their representative where the union thereafter loses its majority status and the employees subsequently discontinue their support of, or repudiate, the union, the various courts of appeals are in conflict. There is no doubt, of course, that where the employer's obstructive tactics, delays, and other unfair labor practices may have con- tributed to a loss of majority status, the employer is guilty of an unfair labor practice in not recognizing the bargaining agents selected before such unfair labor practices took place Franks Brothers Co. v. N. L. R. B., 321 U. S 702. Finally and in summation the court says: It is our conclusion that whenever the will of the employees to revoke the power of their bargaining agent is clear and unquestioned, effect must be given to such revocation, and the employees, in such a case, are thenceforth free to bargain collectively through an agent of their choice, if they so desire. The small unit of six truck drivers in this case had the right to revoke the powers of the bargaining agent theretofore elected by them. The employer having been guilty of no un- fair labor practice in bringing about such revocation, is not guilty of an unfair labor practice for having failed to bargain with the agent in question after its powers had been revoked, In accordance with the foregoing, a decree will be entered setting aside the order of the Board. 50 See 32 L. R. R. M. at pages 2127 and 2118, respectively, for a full account of these cases. See also comment in "Summary of Developments" at page 3 in the same Labor Relations Reporter, No. 32, No 9, 32 analysis 17, dated June 1, 1953. R. J. OIL & REFINING CO , INC. 709 It is to be noted that in the Mid-Continent case the Sixth Circuit spells out and distinguishes a situation absent the commission of unfair labor practices by an employer and a situation where they have as found herein above preceded the revocation of the bargaining agent's author- ity. So in that respect there is no conflict between the Brooks case as decided by the Ninth Circuit and the Mid-Continent case discussed above It is quite true that the record herein shows that the so-called revocation of the Union by the Respondent's employees occurred more than 1 year after the Union was certified by the Board, but here the undersigned has found above that the strike, which began on February 9, 1952, and was officially abandoned on June 23, 1952, was caused in the first instance by the unfair labor practices of the Respondent, and thereafter prolonged by its refusal to meet with the Union during the pendency of the strike as evidenced by President Smith's letter to the Union dated March 21, 1952, then under such circumstances the decision of the Sixth Circuit in the Mid-Continent case would not apply to the factual situation found herein. That being so and upon the facts found above the undersigned is convinced that by its unfair labor practices the Respondent unlawfully deprived the Union of a substantial portion of its "certification year."Si Hence, if the principle of the "certification year" is to mean anything at all, then surely it must mean a year without unlawful hindrance by the Respondent so that the Union can function and perform its duties as the certified representative of the employees. Under all the circumstances the undersigned finds that the Respondent herein by virtue of its prior unfair labor practices was under a legal duty to continue to recognize and to deal with the duly certified Union herein. It was not for the Respondent to determine whether or not the Union had lost its majority, it was for the Board, consequently it acted at its peril when it entered into its agreement with District 50.52 Therefore, by granting exclusive recognition to District 50 during the pendency of the unfair labor practice strike found above, at a time when the Union was the certified bargaining representative of its employees, the Respondent has assisted and lent support to53 District 50 in violation of Section 8 (a) (2) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to constitute unfair labor practices, tend to le. ,, and have led, to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8 (a) (1), (2), (3), and (5) of the Act, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent on or about April 23, 1952, and at all times thereafter, has refused to bargain collectively with the Union as the certified bargaining representative of its employees in an appropriate unit, the undersigned will recommend that the Respondent, upon request, bargain collectively with the Union as the certified exclusive bargaining repre- sentative of all the employees in the unit found appropriate by the Board in Case No. 35-RC- 463, and by the undersigned herein mentioned above and, if an agreement is reached, embody such understanding in a signed agreement. Having found that the Respondent discriminated against Henry Chandler with respect to his hire and tenure of employment and the terms and conditions of his employment because 51 As the undersigned interprets the Respondent's brief it accepts the principle of the "certification year" as ennunciated by the Sixth Circuit Court of Appeals in the Mid-Con- tment case cited, supra. 52 See N. L. R. B. v. Sanson Hosiery Mills, 195 F. 2d 350, 352 (C. A. 5), certiorari denied 344 U. S. 863; Poole Foundry and Machine Company, 95 NLRB 34; see also National Carbon Division, Union Carbide and Carbon Corporation, 100 NLRB 689; Toolcraft Corporation, 92 NLRB 655, 656. 53By virtue of the checkoff agreement in its contract with District 50. 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he had joined and assisted the Union and had engaged in other protected concerted activities, the undersigned shall recommend that the Respondent offer to him immediate and full rein- statement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and that the Respondent also make him whole for any loss of pay he may have suffered by reason of the Respondent's discrimination against him, by pay- ment to him a sum of money covering his loss of pay, such loss of pay to be computed on the basis of each separate calendar quarter or portion thereof during the period from the Re- spondent's discriminatory discharge on February 8, 1952, to the date of a proper offer of reinstatement. The quarterly periods hereinafter called "quarters" shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which he normally would have earned for each quarter or portion thereof, less his net earnings,54 if any, in other employment during that period Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. The undersigned shall further recommend that the Respondent, upon request, make available to the Board or its agents, for examination and copying, all payroll records and reports, and all other records necessary to analyze the amount of back pay due him 55 Having found that the Respondent discriminated against six named strikers, whose names appear under Appendix A annexed hereto, with respect to their hire and tenure of employment and the terms and conditions of their employment because they had gone on strike in protest against Respondent's unfair labor practices and had engaged in other protected concerted activities, the undersigned will recommend that Respondent offer to the employees named immediately below immediate and full reinstatement to their former or substantially equiva- lent positions, 1. Amos Hill 2. John Osborne when able to work without prejudice to their seniority or other rights and privileges. The reinstatement shall be effected in the following manner: Employees hired during the strike shall, if necessary to provide employment for those to be offered and who shall accept their former or sub- stantially equivalent positions, be dismissed. It will also be recommended that the Respondent make whole in addition to the two employees named above, the remaining employees named in Appendix A and in particular below, for any loss of earnings they may have suffered by reason of the Respondent's discrimination against them by the payment to each of them a sum of money equal to the amount which he normally would have earned as wages from Sep- tember 9, 1952,56 which the undersigned has found above to have been the date a valid request for reinstatement was made by the strikers, to the date the Respondent made a valid offer to reinstate him to his former or substantially equivalent position, and which each declined to accept, which is set opposite the name of each striking employee as listed below: 1. Ray Jacquemai From September 9 to December 3, 1952. 2. Joseph J. English From September 9 to November 3, 1952 3 Richard Sloan From September 9 to November 23, 1952. 4. Robert Lee Roney From September 9 to November 12, 1952. The computation of the amounts due each of the above-named striking employees shall be subject to the deduction of the net earnings of each during the periods of time shown op- posite their names Having found that the Respondent illegally assisted and supported District 50 by, among other things, executing a contract with it on June 14, 1952, hereinabove referred to, the un- dersigned will recommend that Respondent be ordered to cease and desist from giving effect to said agreement and such other understanding, supplements, or other agreements, if any, as may relate thereto, or to otherwise unlawfully assist or support District 50 as the repre- sentative of the employees in the bargaining unit found appropriate hereinabove and by the Board in Case No 35-RC-463 Having found that there is insufficient evidence in the record to sustain the allegations of the complaint that Hershel W. Sollman and Billy Frank Scott were discriminated against, the undersigned will recommend that the complaint as to them be dismissed 54See Crossett Lumber Company, 8 NLRB 440. 55 See F W. Woolworth Company, 90 NLRB 289. 56 See Crossett Lumber Company, 8 NLRB 440. R J. OIL & REFINING CO , INC. 711 The unfair labor practices found to have been engaged in by Respondent are of such a character and scope that in order to insure the employees here involved their full rights guaranteed by the Act it will be recommended that Respondent cease and desist from in any manner interfering with, restraining , and coercing its employees in their right to self- organization.67 Upon the basis of the foregoing findings of fact, and upon the record as a whole, the under- signed makes the following: CONCLUSIONS OF LAW 1. Oil Workers International Union, CIO, and District 50, United Construction Workers of America, and its Local 13695, affiliated with United Mine Workers of America, are labor organizations within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees, including truckdrivers employed at the Respondent's refinery at Princeton, Indiana, but excluding office and clerical employees, gaugers, professional employees , chemists , guards, the dispatcher , and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Oil Workers International Union, CIO, was on April 23, 1951, and at all times since has been, the certified 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. 4. By refusing on April 23, 1951, and thereafter, to bargain collectively with Oil Workers International Union , CIO, as the exclusive representative of all the employees in the appro- priate unit , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By discriminating in regard to hire and tenure of employment of the six employees whose names appear on Appendix A. annexed hereto, because they and each of them par- ticipated in a strike at Respondent ' s refinery and engaged in other protected concerted activities, thereby discouraging membership in the Union , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act 6 By discriminating in regard to the hire and tenure of Henry Chandler on February 8, 1952, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act 7. By giving illegal assistance and support to District 50, United Construction Workers of America, and its Local 13695, affiliated with United Mine Workers of America, thereby encouraging membership in Oil Workers International Union , CIO, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. 8 By interfering with, restraining , and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. 10. Respondent did not discriminate against Hershel Sollman and Billy Frank Scott as alleged in the complaint. [Recommendations omitted from publication.] APPENDIX A 1. Ray Jacquemai From September 9, 1952 to December 3, 1952. 2. Joseph J. English From September 9, 1952 to November 3, 1952. 3. Richard Sloan From September 9, 1952 to November 23. 1952. 4. Robert Lee Roney From September 9, 1952 to November 12, 1952. 5. Amos Hill From September 9, 1952 to the date a valid offer of reinstatement is made. 6. John Osborne From September 9, 1952, to the date he is phys- ically capable of performing his former duties. 57 See May Department Stores v. N . L. R. B., 326 U S. 376.