Waggoner Refining Co., Inc.

In the Matter Of WAGGONER REFINING COMPANY, INC., and W. T. WAGGONER ESTATE and INTERNATIONAL ASSOCIATION OF OIL FIELD, GAS WELL AND REFINERY WORKERS OF AMERICA In the Matter Of WAGGONER REFINING COMPANY, INC., and W. T. WAGGONER ESTATE and WAGGONER EMPLOYEES FEDERATION Cases Nos. 0D30, R-229 and R-028.Decided April 01, 1938 Oil Producing and Refining Industry-Employer: separate legal entities, cor- poration and trust estate, constituting single business enterprise-Interference, Restraint or Coercion-Discrimination: demotions ; discharges : charges of, not sustained as to one employee-Investigation of Representatives: controversy concerning representation of employees: controversy concerning appropriate unit; rival organizations: duplication of membership-Unit Appropriate for Collective Barqaining: employers in production, casinghead gasoline, water, pipe- line, and refinery departments of corporation and estate, excluding super- visory employees ; functional coherence ; desire of employees ; similarity of working conditions and wage scales ; agreement of one organization not to admit employees over whom another organization had been granted juris- diction by a parent body not controlling when parent body no longer con- trols both organizations ; sales and traffic department excluded. from-Rein- statement Ordered-Back Pay: awarded-Election Ordered Mr. Karl H. Mueller and Mr. L. N. D. Wells, Jr., for the Board. Mr. R. B: Anderson, of Vernon, Tex., and Mr. F. B. Walker, of Fort Worth, Tex., for the respondent. Mr. John L. Coulter, of Fort Worth, Tex., and Mr. George E. Beberineyer, of Wichita Falls, Tex., for the Oil Workers. Mr. M. M. Wade, of Vernon, Tex., for the Employees Federation. Mr. Lester Asher, of counsel to the Board. DECISION DIRECTION OF ELECTION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Association of Oil Field, Gas Well and Refinery Workers of Amer- herein called the Oil Workers, the National Labor Relations 731 732 NATIONAL LABOR RELATIONS BOARD Board, herein called the Board, by Edwin A. Elliott, Regional Di- rector for the Sixteenth Region (Fort Worth, Texas), issued its complaint dated June 24, 1937, against Waggoner Refining Com- pany, Inc., herein called the Company, and W. T. Waggoner Estate, herein called the Estate (herein referred to collectively as the re- spondents), alleging that the respondents had engaged in and were engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. In respect to the unfair labor practices the complaint alleged in substance that the respondents had discharged and refused to rein- state 17 employees because they joined and assisted a labor organiza- tion and engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection. On July 8, 1937, the respondents filed with the Regional Director the following verified pleadings, each of which concluded with a prayer that the complaint be dismissed: (1) a plea to the juris- diction filed on behalf of the Estate, contesting the jurisdiction of the Board upon the ground that the Estate is not engaged in interstate commerce; (2) a plea to the jurisdiction filed on behalf of both the Estate and the Company, contesting the jurisdiction of the Board upon the ground that the employees named in the complaint were not engaged in activities affecting interstate commerce; (3) a joint motion to dismiss the complaint as being ambiguous and indefinite; and (4) a joint answer denying the material allegations of the complaint. On May 24 and 25, 1937, Employees Federation of the Waggoner Refining Company and W. T. Waggoner Estate,' herein called the Employees Federation, and the Oil Workers, respectively, filed peti- tions requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Act. On June 14, 1937, the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, Article II, Section 37 (b), and Article III, Section 10 (c) (2), of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice, and further ordered that, for purposes of hearing, the three cases be consolidated and that one record of the hearing be made. 1 Referred to in the caption of its petition as Waggoner Employees Federation . During the hearing the correct name was determined to be Employees Federation of the Waggoner Refining Company and W. T. Waggoner Estate (Employees Federation Exhibit No. 5). DECISIONS AND ORDERS 733 On June 24, 1937, the Regional Director issued a notice of hearing to be held at Vernon, Texas, on July 12, 1937, copies of which were duly served upon the Company, the Estate, the Oil Workers, the Employees Federation, International Association of Machinists, herein called the I. A. M., International Brotherhood of Electrical Workers, herein called the I. B. E. W., and upon International Brotherhood of Boilermakers, Iron Ship Builders, Welders and Helpers of America, herein called the Boilermakers. In informal letters addressed to the Regional Director and dated June 6 and July 6, 1937, respectively, the I. B. E. W. and the Boilermakers protested against any election which would include employees over whom they claim jurisdiction.2 Pursuant to notice, a hearing on the complaint and petitions was held in Vernon, Texas, from July 12 to July 21, 1937, before Tilford E. Dudley, the Trial Examiner duly designated by the Board. The Board, the respondents, and the Employees Federation were repre- sented by counsel, and the Oil Workers by officers. All participated in the hearing. Prior to the hearing, the I. A. M. filed a written motion to intervene, supported by an accompanying brief, which motion was granted by the Trial Examiner during the hearing. The I. A. M., however, was not represented at the hearing, and neither was the I. B. E. W. nor the Boilermakers. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. It was stipulated by the parties represented at the hearing that proper service had been had of all notices and pleadings. The re- spondents renewed their pleas to the jurisdiction and motions to dismiss at the commencement of the hearing and again presented these motions, together with an additional motion to dismiss because of insufficiency of proof, 'at the conclusion of the Board's case and at the close of the hearing. The Trial Examiner denied these mo- tions. On motion of counsel for the Board, the complaint was dis- missed without prejudice with respect to Glen Mount. Counsel for the Board also moved to dismiss without prejudice the,complaint as to Glen Brjrant. Ruling was reserved on this motion. On August 21, 1937, the Trial Examiner filed his Intermediate Report in which he granted the motion of counsel for the Board to dismiss without prejudice the complaint with respect to Glen Bryant; found that the respondents had committed unfair labor prac- tices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act; recommended the reinstate- ment of 14 employees of the respondents; but recommended the dis- missal of the complaint in so far as it alleged the discriminatory dis- 2 These letters were made part of the record as Board Exhibit Nos. 5 and 6 734 NATIONAL LABOR RELATIONS BOARD charge of W. R. Webb. Exceptions to the findings of the Interme- diate Report and to the rulings of the Trial Examiner were there- after filed by the Company and by the Estate. The respondents also filed a joint brief in support of the exceptions and setting forth the arguments concerning the Board's lack of jurisdiction, to which we have given due consideration. Pursuant to notice, a hearing was held before the Board on Sep- tember 24, 1937, in Washington, for the purpose of oral argument. The respondents, represented by counsel, and the Oil Workers, ap- pearing by its president, participated in the oral argument. The Board has reviewed the rulings of the Trial Examiner on motions and on objections to the admission of evidence and finds that no prejudicial errors were committed. Those rulings are hereby affirmed. The Board has also considered the exceptions to the find- ings of the Intermediate Report and finds them to be without merit. Upon the entire record in the cases, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENTS A. The Estate The Estate was created as of March 31, 1923, by an instrument of trust entered into between W. T. Waggoner, his wife, Ella Waggoner, and his children, G. L. Waggoner, E. P. Waggoner, and Electra Wag- goner Bailey, and their spouses. Various properties were conveyed to W. T. Waggoner, as trustee, to be managed, operated, and disposed of by him and his successors in accordance with the terms of the trust during the 20-year period for which it was set up. The capital stock of the Estate, amounting to $10,000,000, was equally divided between the three children, who were also named as a board of directors, with the powers of making recommendations to the trustee, of naming suc- cessors to the trusteeship, and of filling vacancies among the three di- rectors. The trust agreement, however, listed the line of successor trustees to be named by the board of directors, and pursuant to this provision, the present trustee is Ella Waggoner, widow of W. T. Waggoner. The existing directors are the two sons, G. L. Waggoner and E. P. Waggoner, together with A. B. Wharton, Jr., an heir of Electra Waggoner Bailey, deceased, and, with the trustee, they hold the entire beneficial and legal title to the Estate. The Estate owns a cattle ranch of about 170,000 acres in New Mex- ico, and a tract of land covering about 550,000 acres in Texas which is, for the most part, also operated as a ranch. The ranch activities of the Estate are generally handled from Fort Worth, but a smaller ranch office is located in Vernon. About 16,000 acres of the Texas land, DECISIONS AND ORDERS 735 however, is devoted to the production of oil. The major oil operations on this Texas land are carried on by various private oil concerns which operate 2,000 to 3,000 wells under leases from the Estate, providing for the payment to the Estate, as lessor, of a royalty of one-eighth of ,all oil produced on the premises, payable either in cash or in oil. The Estate also operates about 100 wells of its own which produce 400 to 500 barrels of oil a day. The oil activities of the Estate are divided into the following departments : (a) Production. This department employs about 20 persons and operates and maintains the 100 wells belonging to the Estate on its Texas land. The employees of the production department work in the oil field about 15 miles outside of Vernon. They are in charge of the pumps, of bringing the oil to the surface, and of storing it in stock tanks located near the wells. (b) Casinghead Gasoline. From about 300 or 400 wells, belonging both to the Estate and to lessees, this department obtains natural gas and pipes it through gas lines belonging to the Estate to the casinghead gasoline plant which the Estate owns and operates in the oil field. At the casinghead plant the natural gas is put under great pressure; casinghead gasoline. amounting to about 3,000 to 4,000 gallons per day is precipitated; and the dry gas which results is returned under pressure and forced into the ground through certain "key" wells belonging to independent lessees for the purpose of forcing oil to move toward the producing wells and to increase pro- duction. This department employs about 15 men in maintaining the gas lines and in operating the casinghead gasoline plant. (c) Water. The water department of the Estate maintains an artificial lake covering 4,000 or 5,000 acres of the Texas ranch, three pumping stations, and about 12 miles of pipe lines; and distributes and sells water all through the oil field for use in drilling wells and cooling engines. About seven employees make up the personnel of this department. B. The Company The Company is a Texas corporation having its principal office in Vernon, Texas.3 The officers of the Company are G. L. Waggoner, president; E. P. Waggoner, vice president; and' R. L. More, secre- tary-treasurer.4 The directors of the Company include the three officers together with Ella Waggoner, A. B. Wharton, Jr., son of Electra Waggoner Bailey, deceased, and W. T. Waggoner, Jr., son of ,G. L. Waggoner. All the capital stock of the Company is owned by 3 The Company was incorporated on March 14, 1923, for the purpose of engaging in the business of "buying, transporting, refining crude petroleum , and in the sale and distribution of petroleum and petroleum products." * R. L. More is not related to the waggoner family, but has been a business associate for many years. 736 NATIONAL LABOR RELATIONS BOARD members of the Waggoner family, except for a few qualifying shares. The Company's operations are divided into the following departments : (a) Pipe Line. This department, of about 25 employees, works in the oil field and lays and maintains a system of pipe lines extend- ing from the oil wells belonging to the Estate and from about 300 wells which are under leases from the Estate. The pipe-line depart- ment transports all the oil produced by the Estate from its own wells, and also takes the entire production of the 300 lessee wells, which includes the oil owned by the independent lessee together with the royalty share belonging to the Estate. (b) Refinery. All the oil gathered by the pipe-line department is pumped to the refinery of the Company a few miles outside of Elec- tra, Texas, and about 21 miles from the oil field. The refinery de- partment employs about 55 men, its pay roll including, among other workers, stillmen, firemen, treaters, loaders, a laboratory man, 11 yard laborers, about 4 laborers or car men who work on the 150 or 160 tank cars owned by the Company, and a refinery clerk who cal- culates production yields. (c) Sales and Traffic. This department is in charge of all sales made by the Company, as well as the routing of the tank cars, col- lections, and disposition of claims. Its personnel consists of a billing clerk who works at the refinery, a sales manager and several clerks who are located at the main office in Vernon, and a complaint ad- juster who is situated in Des Moines, Iowa. This department also operates several retail filling stations in Electra and Fort Worth and employs about 14 station attendants. (d) General Office. The activities of the Company are handled from a general office in Vernon which is distinct from the ranch office of the Estate located in the same city. About 10 employees constitute the staff of this department, and they prepare all oil records and pay rolls. As its principal raw material the refinery uses all the crude oil gathered by the Company's production department, and it also uses all the casinghead gasoline produced by the Estate's casinghead gas- oline department; this is carried to the yard of the refinery in pipes belonging to the Estate. All the machinery of the refinery comes from outside Texas, as do also the chemicals used in the treating and refining processes, which constitute about 2 per cent of the raw materials. The consumption capacity of the refinery is about 130,000 barrels of crude oil per month, the normal figure being about 115,000 barrels. From this crude oil there is produced 65 per cent gasoline, 18 per cent fuel oil, 5 per cent kerosene, 5 per cent distillate, while about 7 per cent represents loss. Approximately 90 per cent of the gasoline DECISIONS AND ORDERS 737 is shipped to points outside'Texas,s in tank cars owned by the Com- pany whenever possible. For the use of these tank cars the Company receives one and one-half cents per mile from the railroads over which they are routed. About 40 per cent of the kerosene is sold and shipped outside of Texas. Most of the fuel oil produced at the refinery is sold to railroads in the vicinity. Normally the distillate is not manufactured for outside sale but is used by the Estate or the Company for running distillate pump engines. C. The relationship between the Estate and the Company . The respondents have contended, both in their pleadings and throughout the hearing, that the Estate is a separate legal entity en- gaged primarily in a ranching business, that its insignificant oil activities are carried on entirely within the State of Texas, and that its connections and dealings with the Company are no different from the relations which it might maintain with any other oil refinery.6 In support of this contention the respondents adduced proof that all of the crude oil which the Company's pipe-line department gathers from the wells of the Estate, and likewise the Estate's royalty oil, which is received together with the oil purchased from independent lessees, is paid for by the Company at the prevailing market price, and the Estate receives from the Company a monthly check for its oil just as do the concerns operating the lessee wells; that the Com- pany also pays the prevailing market price for the casinghead gaso- line which it receives from the Estate's casinghead gasoline plant or for any Water which it obtains from the Estate's water department; that the Estate and the Company maintain separate" books and records and separate bank accounts in Vernon; that each legal entity files separate Federal income tax returns and receives separate assess- ment and property tax bills from the State of Texas; and that the salary of any individual performing services for the two entities is prorated according to the work done. Clear evidence, however, of the fact that oil operations of the Estate and the Company function together as one business enter- prise is found throughout the record. R. G. Cocanower, general manager of the Company, is also the general manager in charge of the oil activities of the Estate, even though he has nothing whatever c On March 27, 1933, R L. More, secretary -treasurer , in a sworn declaration in con- junction with the Company 's registration of its trade-mark for gasoline , "Golden Flash," stated that "said trade-mark is used by said corporation in commerce among the several States of the United States." 6 The verified answer of the respondents asserts : "The Waggoner Refining Company and the W. T. Waggoner Estate, jointly and severally , deny that there is any relationship between them other than a common ownership in certain individuals of the beneficial interests of the W. T. Waggoner Estate and the stock ownership of the Waggoner Refining Company, a separate and private corporation , organized and existing under the laws of the State of Texas 738 NATIONAL LABOR RELATIONS BOARD to do with the ranching business of the Estate.? The Company's general office in Vernon, out of which Cocanower operates, handles all the accounts involving the production, casinghead gasoline, and water departments of the Estate, and the same employees keep the time sheets, pay rolls, production records, and checking accounts of the Company and also of the oil departments of the Estate. State- ments of all the Estate oil operations are ultimately forwarded to the Fort North office for use in the preparation of the Estate tax returns, but the initial detailed oil records are handled as part of the Company's general office routine. Only a small account is maintained by the Estate in a Vernon bank, and since this balance is often depleted, it is a general practice to issue checks of the Com- pany to pay salaries of employees of the Estate and later make the necessary bookkeeping adustments against the amount due the Estate for oil and casinghead gasoline delivered to the Company. Although each of the departments engaged in oil activities is under the direction of a superintendent who is in charge of his own employment and operations, with only general supervision in Cocanower, the same man, J. C. Davis, is superintendent of both the pipe-line department of the Company and the water department of the Estate. All equipment necessary for the oil activities of the two organizations is bought by one purchasing agent, J. T. McNamara, and a single warehouse in the oil field serves the oil departments of both organizations. The respondents adduced proof that McNamara's salary is divided between the separate legal en- tities, but an even 50-per cent apportionment was given as the basis for the division. In the case of Davis, the testimony was merely that his salary is prorated according to the work done, but no test was suggested for measuring his work in each department. Simi- larly, the record discloses that a clerk in charge of the warehouse was carried on the Company pay roll even though his duties were in connection with materials destined for use in all the oil depart- ments. A truck driver employed by the Company testified that although his truck belonged to the Company, the legend which it carried read "Production Department" (a department of the Estate), and it was used for hauling equipment for all the divisions of the oil business. Since the employees of the water department of the Estate and of the pipe-line department of the Company work in the oil field under the same superintendent, they all start out each morning from his office in the casinghead gasoline plant. The record contains uncontro- 4 while it was shown that Cocanower's salary is prorated between the two organizations, the fact that the Estate is charged with an even figure of 50 per cent, when the number of employees and the volume of business handled is so disproportionate , indicates the looseness of the attempts to maintain independent identities. DECISIONS AND ORDERS 739 verted testimony that in case of a leak in a Company pipe line, the report would come in to the office of the casinghead plant, and in the event of a break-down in the Estate's casinghead plant, employees of the pipe-line department would be called in to handle the gas lines and casinghead equipment. The record also discloses that the tank cars, now owned by the Company, were prior to May 1937 the property of the Estate but were operated by the Company. The Estate received the mileage earnings less the expenses involved in keeping the tank cars in repair. No testimony was adduced by the respondents to show that any pay- ment was made by the Company either for the use of these cars prior to May, or in connection with the change in ownership. The refinery pays no rental for the building or land which it occupies, but at the hearing Cocanower was unable to state whether the real estate was owned by the Company or by the Estate. We find that the oil operations of the respondents constitute a single business enterprise under the same ownership , management, and control. II. THE ORGANIZATIONS INVOLVED International Association of Oil Field, Gas Well and Refinery Workers of America, affiliated with the Committee for Industrial Organization, is a labor organization admitting to membership per- sons working in the petroleum industry . Electra Local No. 400 was chartered by the Oil Workers on May 14, 1937, and admits to mem- bership employees engaged in the oil operations of the respondents, excluding service station workers, clerical and supervisory employees. Employees Federation of the Waggoner Refining Company and W. T. Waggoner Estate is an unaffiliated labor organization, admit- ting'to membership "each employee of the Company and the Estate (except those employees in an administrative capacity and depart- ment foremen and assistant department foremen, or any others so designated from time to time by the council of elected representa- tives) . . ." International Association of Machinists, International Brother- hood of Electrical Workers, and International Brotherhood of Boil- ermakers, Iron Ship Builders, Welders and Helpers of America are all labor organizations affiliated with the American Federation of Labor, which admit to membership, respectively, employees of the respondents working as machinists , as electricians, and as boiler- makers, welders, or caulkers. The group of employees of the respondents who participated in the selection and designation of employee representation committees for the purposes of collective bargaining constitute a labor organization. 740 NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. Background of the unfair labor practices Prior to March 1937 there was no union activity or organization of any kind among the oil employees of the respondents. On Wednes- day, March 17, a group of refinery employees asked their superin- tendent, Mitchell, to have Cocanower come down to the plant so that they could speak to him about wages and working conditions. Mitchell arranged for a meeting on the same afternoon and ap- pointed one worker, Mason Harwell, as spokesman for the men. When Cocanower appeared before the refinery employees that after- noon, Harwell asked for a general increase of 10 cents an hour and a new bathhouse. Cocanower promised to see about a bathhouse, and a new one was subsequently installed, but he replied that no increases could be granted at that time. After he left, the group decided to check the wage scales at other refineries and to hold a meeting on the next night, Thursday, which would be open to all employees of the oil departments of the respond- ents. Several of the refinery men went out to the field and the casinghead plant and announced the meeting. Arrangements for the meeting place were made by Gilbert A. Birdsall, laboratory man at the refinery, and on Thursday night, March 18, about 100 employees of the respondents gathered in the basement of the First Christian Church in Electra, Texas. Birdsall called the meeting to order and presided temporarily until Don B. Alsup, refinery clerk, was elected chairman. Birdsall was elected secretary-treasurer. It was tentatively agreed to have each depart- ment name two representatives, who would meet with those chosen from the other departments and work out a proposed schedule of wages. The production department and the casinghead gasoline department each named two representatives, while the pipe-line de- partment of the Company and the water department of the Estate elected two representatives between them because the men themselves classified the water department as part of the pipe-line department. On Friday morning, notices were posted in the refinery announc- ing increased salary rates to go into effect the neat day, March 20. Since many classifications of work in the refinery were not covered by the schedule of increases, the refinery employees continued with the plans which had been made at the meeting of the night before and elected Birdsall and Alsup as their committeemen. During the day Alsup saw Cocanower and arranged for a conference on the follow- ing Sunday morning. A meeting of all the department representa- tives was held at Birdsall's house on Friday night, and a list of new salary rates was worked out for each department. The commit- DECISIONS AND ORDERS 741 teemen also agreed to request paid vacations for all employees and to promise the management to refrain from affiliating with any out- side labor group. A general meeting of the employees of all the oil departments was held on Saturday night in Electra, and Alsup acted as chair- man. The meeting finally approved the combined list of desired wage rates, agreed to the general propositions concerning vacations, other working conditions, and no outside affiliation, and authorized the committeemen to seek the best possible terms from Cocanower. On Sunday morning, Cocanower, met the committee in his office in Vernon and interviewed the representatives of each department separately. Alsup and Birdsall were the first committeemen to confer with him, and they presented a two-page proposal which listed all the desired salaries according to departments and which concluded with the following general stipulations : Maximum 8 hr. day for all men. Monthly men that are sub- ject to call will of course work over 8 hours when necessary. Ten, (10) day paid vacation to all employees. Shift men that work six hours a day will work seven days per week. All other classes of labor working eight hours a day will work six days per week. No time loss for shift men during ,shut-downs. During this time shift men will be paid for six hours per day at regular wage scale, and they shall not be worked over 8 hours unless paid at 530 per hour rate. No man is to be maliciously discharged from duty without consent of representation from his department. It is understood by the management and employees that we will keep our committeemen for the purpose of aiding the man- agement in keeping our men satisfied. And it is further agreed and understood that we will at no time affiliate with any labor organization. , Cocanover reached an agreement with each pair of representatives concerning the question of salaries, although in many cases the in- creases granted were lower than those requested, but he said he would give his answer as to the general stipulations at a later time. The men were pleased with the results of their efforts, and the record also indicates that Cocanower expressed his satisfaction with the entire movement. The refinery was at that time in one of its regular shut-down periods for the purpose of cleaning out the tanks and equipment, and even though no oil was being refined, the full force was engaged in the clean-up work. On Monday afternoon, March 22, all the refinery men were called together in the plant, and Cocanower 742 NATIONAL LABOR RELATIONS BOARD' appeared with his attorney, R. B. Anderson. Cocanower read a statement, in part as follows : With reference to the stipulations submitted by a committee on last Thursday, I say to you most firmly that this corporation has no intention of surrendering its right to do business as it has done business in the past; that is, with the individuals in its employ. In no sense of the word would this company deny to any man, or group of men, the right or power of collectively bargaining, yet in no sense of the word will this company sub- mit the operations of the company, in a time of economic doubt, to any persons not directly responsible for the managerial policy and the ultimate economic stability of the organization. The Waggoner Refining Corporation has characterized its history by liberality and a policy of fair dealing. The policy of the Company in the future is dedicated to the same principles. This point I should like to make clear. I am talking about my job as well as your job. If this company can be operated as it has been operated upon a basis of fair dealing, then its operation will continue. I f to operate, it is necessary to sur- render that policy, or to obliterate the managerial control which now exists, then the owners of the property in their own inter- ests, in order to avoid further economic losses, must of necessity within short order,.cease the operations of what would inevitably become an unprofitable venture. Finally, I want this fact under- stood ; that whatever suggestions you have to make, whatever alterations of policy you may want to submit, they will be submitted to me as the nt 8 of this Corporation, and exclusively to me. I want it made plain that this policy repre- sents the desire of the corporate management, its staff of offi- cers, and its owners. I ask you to think very carefully about any proposals that you have to make, because I have been frank with you in saying that our problem is primarily a problem of whether or not we shall all continue to exist and continue to have work to do. In view of the stipulations and suggestions made by the em- ployees,of this organization, the Management of the Corporation has decided that it is to the best interest of both the employees and the owners of the property to now determine the future relationships that are to exist between us all. To that end, I want to say to you very frankly that at the conclusion of this meeting the gates of this plant will be closed and its operations halted. Those of you who desire to continue to work for the Waggoner Refining Company may so signify your desire to 8 A copy of the statement , Respondents' Exhibit No 7, showed a line through this word. DECISIONS AND ORDERS 743 our Company Superintendent . In the event that there are. enough of you who are anxious, ready and willing to work upon the basis of fair dealing that you have received in the past,. and will continue to receive in the future , then this plant will continue its operations . In the event, that there are not enough of you who so desire employment , then the shut-down of the plant will remain indefinite. After reading the statement, Cocanower said that he and Ander- son would be downstairs in the refinery office and would be glad to, explain any part of the statement that was not understood. Coca- nower's testimony of what occurred in the office immediately there- after is as follows : Mr. Birdsall and Mr. Alsup came in and Mr. Birdsall stated that they didn't have their attorney with them and they didn't know what to do without advice of legal counsel. He was very much excited . . . Mr. Anderson spoke up and said there. was nothing about this except a matter of policy, and there was nothing there to concern them at all . . . (Birdsall ); went out- side and came back and he was in a very bad mental state. He. was very nervous and he said , "Well, I am for the men first, last, and always , as I have always been . . . I just don't know what to do." And I said, "Well, Birdsall, there isn't anything that I want you to do, it is a cinch." . . . Mr. Birdsall offered his resignation . . . I told him we wouldn't discuss it at all, there wasn't any need for it, and I think that was about the end of the discussion . . . Mr. Alsup did say the' men didn't know whether I wanted them to work or not and I told him that if they had anything unfinished it would be all right for them, to work or not to work, otherwise they would have a half day's, holiday at the company's expense. Alsup and Birdsall at once hurried out to the casinghead plant in the oil field and announced another meeting of all the men. At the. meeting that nibht at the First Christian Church in Electra, Alsup described the afternoon 's events at the refinery and concluded that Cocanower had changed his mind since Sunday and was refusing to bargain with his employees. Some of the men began to talk of a strike. Two refinery employees, Lasswell, foreman of the tank car men, and Taylor, electrician, then spoke up and reported having seen Cocanower late in the afternoon and having told him that the men did not understand the statement and were disturbed . Cocanower's, reply to them had been as follows : "There is not a thing in that that would hurt the men in any way. There is no change at all. They are going to get their raise . . . There isn't anybody going to be 80618-38-vor. 11-48 744 NATIONAL LABOR RELATIONS BOARD discharged over this thing." Lasswell and Taylor declared that if the refinery men returned to work the next morning, Cocanower intended to be present and personally to pass out the new time cards which signified the increased rates. Birdsall then pleaded with the men to return to work and received a vote of confidence after he finished his speech. On the next morning, March 23, Cocanower appeared at the refinery and distributed the new time cards. Alsup and Birdsall, who were on a monthly salary, also received increases of $10 a month. B. The discharges Don B. Alsup was first employed by the Company in 1932 as a clerk in the general office which was then located in Electra, and received a salary of $125 per month. When the general office was moved to Vernon, he continued at the refinery as part of the sales and traffic department. In March 1936 he was transferred to the warehouse out in the oil field. From about September to November 1936, Alsup was forced to stay at home because of a leg injury, but the Company continued to pay him his full salary. After November 1936 he be- came clerk at the refinery and prepared various production reports, oil yield records, time sheets, and equipment inventory records. Al- sup's testimony discloses that upon assuming these duties he was not advised that the work was temporary or that he was substituting for someone else. Alsup's prominence and leadership in the movement to obtain in- creased salaries and improved working conditions are disclosed by the evidence cited above. On March 23, Alsup was with the group of refinery employees who watched Cocanower distribute the new time cards which signified the granting of wage increases. Alsup's testi- mony of the subsequent events is as follows : After the men went back to their jobs, Mr. Cocanower and I retired to his office and he told me he wouldn't be able to use a man who would work in labor negotiations and work in harmony with the men against the management, that is almost nearly what he- said exactly . . . I told Mr. Cocanower I didn't think it was the opportune time to leave, because I felt if I walked out all the men would walk out with me as that was the general understand- ing. He said I was right, and I would just go ahead and wait for a while; in other words, I got what you might call a suspended sentence or a suspended discharge. Cocanower's own version of the incident follows : Well, I went down and handed out all the time cards to those who punched time cards, and I believe the men who were on DECISIONS AND ORDERS 745 monthly pay were there too. I know Mr. Alsup and Mr. Birdsall were there, and after handing out the cards I told them all to go to work, that I thought everything was going to be heavenly. ! I turned and went into the office . . . Mr. Birdsall and Mr. Alsup and Mr. Mitchell and Mr. McNamara (were in the office) Mr. Birdsall asked me what I wanted him to do, and I told h! I to go out and get to work, and he did ... Then I walked over to Mr. Alsup and said, "Don, you are in a confidential position," and before I could say any more he said, "I know what you are going to say and I agree with you, but I don't think it would be the proper time at the moment for me to go out of here, be- cause the men will all walk out with me." And he said, "If you will let me stay around here a few days I will slip out and that is all there will be to it." I said, "That is fine, when you get ready to go I will give you two weeks pay and we will forget it." Upon examination by counsel for the Board, McNamara, purchas- ing agent for the Company, testified as follows : Q. Did you hear Mr. Cocanower say anything to Mr. Alsup about his activity on the part of the men or with the men? A. The only thing I heard him tell him was about this state- ment that he had read to the employees upstairs. Q. What was that? A. It was some statement regarding the formation of a union and it said in there that they did not deprive collective bargain- ing and they wouldn't prevent the employees from forming their own union, or something to that effect. Q. Did you hear Mr. Cocanower say anything at all to Alsup about the fact that he didn't think it was right for Alsup to work against the management and for the men? A. He might have said something like that, but I don't remem- ber it. Q. All you heard was what Alsup said to Mr. Cocanower, but you didn't hear what Cocanower said to Alsup? A. Well, I heard him my that he would give him a check for two weeks, and said he could just leave there, I heard that part of it. We are convinced from Cocanower's own testimony that on March 23, Cocanower culminated the week of intense organizational activity among his employees by setting about to discharge the outstanding figure in the movement.' McNamara's testimony together with subse- quent occurrences gives added strength,to the conclusion that Alsup, 746 NATIONAL LABOR RELATIONS BOARD' the chairman and leader of the activities of the employees , was dis- charged on March 23 but was allowed to stay on for a short time. After March 23 the pay roll was sent to the refinery in sealed en- velopes, and Alsup no longer had anything to do with the wage rates. Early in April a new refinery superintendent , Simpson, re- placed Mitchell, and at about the same time Hogan, who had been working in the refinery yard on various blue-prints and construction and equipment records and a yard foreman, was assigned to the refinery office to work with Alsup. As to the final severance of Alsup's employment, Simpson testified : "At the end of April I had a little more time to go into the records and so on, and I could see that one man was all that was necessary for those records and at the end of that time I told Mr. Alsup I would have to lay him off . . . I told him I thought he should go over and see Mr. Coca- nower." April 30, 1937, was the last day on which Alsup worked for the respondents. The answer and the brief filed by the respondents omit any men- tion of the episode of March 23 and instead allege that Alsup was laid off on April 30 because he performed his duties in an inefficient manner; that he was given the position of refinery clerk only as a temporary post while Hogan was doing other work ; and that on April 30, Alsup was advised to see Cocanower but has failed to, do so. The contention of inefficiency is refuted by Alsup's record of salary increases as well as by testimony of the respondents' own witnesses. Superintendent Simpson stated : "I laid Mr. Alsup off, I didn't discharge him . . . I don't discharge a man unless I think he warrants discharging . . . I was overmanned. It was reducing forces in that case ." The reason given by the respondents for directing the reduction in force on April 30 towards Alsup was the fact that Hogan was employed since 1931 and was the regular refinery clerk, and also that at the end of March, Alsup was asked if he was capable of handling a stenographic position but had answered that he could not take shorthand. The lack of sincerity in the argument that Alsup did not have sufficient stenographic ability is manifested by Cocanower's admission that he never mentioned any specific position and that the opening which he had in mind was given to a new girl who does only typing. and does not write short- hand. There is some confusion in the record, however, concerning the status of Hogan. Alsup testified that during the period of his disability in the summer of 1936, Birdsall and not Hogan performed the refinery clerical duties and that Hogan was not considered the regular clerk . Even conceding that Hogan is an employee of longer- standing than Alsup, we have concluded that the discrimination against Alsup occurred on March 23, 1937, when Hogan was working- in the refinery yard. DECISIONS AND ORDERS 747 From all the evidence we find that the subsequent transfer of Hogan to the refinery office was not the real motive for the discharge of Alsup on March 23. Alsup denied that when his employment was terminated on April 30, 1937, Simpson advised him to report to Cocanower. Even assuming the truth of the respondents' conten- tion, the circumstances of Alsup's termination of employment, when considered in the light of his discharge on March 23, made immaterial his failure to follow the suggestion of a subordinate official that he report to the general manager who had notified him of his im- pending termination of employment. We further find that Alsup was discharged because of his active participation in the organization ,of his fellow employees. When Birdsall learned of the severance of Alsup's employment with the Company, he at once called a meeting of all the department committeemen to be held at his house on May 3, 1937. On the day before the meeting, Birdsall was called into the refinery office by Cocanower. Birdsall's testimony is as follows : ... Mr. Cocanower asked me what we were going to do and I said I was going to stick by Don and he wanted to know why and I said because the men felt the way I did and that I felt they were dissatisfied in what Don got, and that they wanted to stick by him and I believed they would stick by him until the end. I then asked Mr. Cocanower if he wouldn't rein- state Don . . . and I understood him to say before he would put him back to work he would shut the refinery down. Although he admitted the discussion with Birdsall concerning Alsup's discharge, Cocanower's testimony offers a different version ,of this conversation. In answer to the question, "Did you tell Bird- sall on that occasion that before you would put Alsup back to work you would close the plant down?" Cocanower stated, "No, I didn't say anything like that. That wouldn't be any of my business." We conclude that the respondents discriminated in regard to the hire and tenure of employment of Don B. Alsup, and thereby dis- couraged membership in the labor organization in which employees of the respondents were participating. The Grubber Gang was composed of about 16 laborers who were hired around August 1936 by H. U., Jackson, a purchasing agent ,and general foreman for the ranch activities of the Estate. The re- spondents adduced proof that these men were given employment at $2 a day because the Estate was cooperating with local charity or- ganizations in an effort to aid the relief situation. The gang would gather each morning at one of the Company's service stations in Vernon and would climb into a truck and drive out to the work des- ignated for the day. When first employed, the gang worked pri- 748 NATIONAL LABOR RELATIONS BOARD marily at grubbing mesquite, cactus, and prickly pear and also erected cattle guards on the Estate's ranch land. During September 1936 the refinery commenced the complete over- hauling of its equipment and the installation of a new Dubbs crack- ing unit, and the refinery yard was thereafter cluttered with con- struction materials, pipes, and scrap metals. The grubber gang from then on was placed under the supervision of McNamara, the pur- chasing agent for the oil departments, and his orders would each morning be transmitted to the men by Albert Miller, an employee of the Company, who drove the truck out from Vernon. On infrequent occasions the gang was again sent out to do grubbing work or build cattle guards for a few days. For the most part, however, the mem- bers of the grubber gang dug pipe-line ditches, laid pipe line, and performed the same general refinery maintenance work as did the regular yard laborers, who received 48 or 53 cents an hour. Until January 1937 the gang was paid in cash at the end of each week, but after the beginning of the year payment was made on the 1st and 15th, day of each month, the Company's regular pay-roll dates, and with checks drawn on the account of the Company. On May 5 a petition naming Alsup and Birdsall as a committee to bargain collectively with officials of the Company for the purpose of negotiating an agreement concerning wages, hours, and working conditions was circulated about the refinery, and within several days 44 employees signed this petition. On May 7 and 8, W. H. Fowler, R. T. Marshall, J. C. Muse, Clifton Riggins, H. E. Sitz, M. M. Thomas, and A. J. Wells, all members of the grubber gang, signed the petition. They had not attended any of the prior meetings of the employees and had not participated in the election of committee- men. Marshall testified that after he signed the petition in the re- finery office, during the noon hour, he went into the carpenter shed where the grubber gang usually ate lunch, and he was joined by Sam Thompson and Jack Roberts, two other grubbers. Purchasing Agent McNamara came in and asked who had signed the petition. Thomp- son and Roberts replied that they had not, and McNamara then stated, "You had better be careful of what you are signing." McNamara denied having made this statement, but admitted holding a conver- sation in the carpenter shop. He testified that the men had asked him about joining a union and that he had answered, "I think a man ought to go according to the dictates of his own conscience." On Sunday, May 9, Albert Miller came to W. H. Fowler's house and told him not to have the truck serviced that day because the gang was -not going to work until the labor trouble was settled at the re- finery. On Monday, May 10, Miller's truck did not go out, and the grubbers who had signed the collective bargaining petition were in various ways notified that they were discharged. Within the next DECISIONS AND ORDERS 749 day or so Miller told Fowler, "If you hadn't signed the paper down 'at the refinery you would still be working "; told Muse, "Well, you all played the devil when you signed that petition "; and told Mar- shall and Wells, "Well, boys, I guess you played the dickens in sign- ing that petition . . . Yes, you got fired." H. E. Sitz testified that on the following Wednesday or Thursday : He (Miller) run up behind me in a car and blowed his horn and motioned me to come out there. I went out to the car'and he said, "Sitz , what did all'you boys mean down there?" I said, "What do you mean?" He said, "What did you boys do?" I said, "We didn't do anything but sign a petition." He said, "You just played hell when you signed it, it just cost you your job." It is significant that the grubber gang was not abolished, but that Sam Thompson , Jack Roberts, John Thompson, and Dwight Smith, none of whom signed the petition , continued to work. On the morning of May 10 and thereafter , however, they were sent out in another truck. D. W. Sitz, J. F. Holton , and M. B. Martin, other members of the grubber gang, signed the petition after May 10, but it is apparent from the record that they were discharged on May 10 because of Miller's belief that they had participated in the attempt to exercise the right to self-organization . D. W. Sitz testi- fied that on May 12, "I went ( to Miller's house ) to see whether I was fired or not . . . He said, `You just messed things up when you signed that petition ."' To Holton, Miller said, "What did you boys try to pull off down there , Saturday ?" Martin, who saw Miller on the afternoon of May 10, testified : "I asked him why we didn't go back to work, and he asked me, `What have you boys done down at the refinery?' . . . I told him I hadn't done anything, that I hadn't been on the job . . . He said, `Well , you boys have certainly made a mess of it.", B. E. Brothers, another grubber , was not discharged until May 16, his last work consisting of driving a car about the Estate property and looking after junk dealers and wood haulers. He signed the Alsup and Birdsall petition on May 11 , and attended two meetings of the Oil Workers in Electra that week. His testimony with ref- erence to an encounter with Miller on May 14 is as follows: "He just said to me, `Where are you going?' I said, 'I am going to Electra tonight.' He said, `If you think anything of your job stay away from Electra and don't get messed up down there' . . . I was driving the company car and he took my car . . . I went to the meeting in Electra . . ." Two days later Brothers was discharged. The respondents contend that the 11 members of the gang who are named in the complaint were discharged because their work had been 750 NATIONAL LABOR RELATIONS BOARD completed. This contention is disposed of by testimony of the men that the work was not finished and by the further fact that the four men on the gang who had not signed the petition or been suspected of signing it continued to be employed at the same work. The respond- rents did not deny that Albert Miller had made statements which ,clearly indicate that the discharges were unfair labor practices under the Act, but instead contend that they cannot be held responsible for his remarks.9 The record clearly establishes, however, that in the past members of the gang had been discharged after Miller objected to their'work; that he kept the records of the work done and the time -put in by each man; that the gang was always under the direct super- vision of Miller and considered him as the foreman; and that he did not work with the men but walked around and saw that the work was being done properly. The unrefuted testimony of one of the grub- bers was that after his discharge he went to see McNamara about go- ing out on the other truck. McNamara told him, "Whatever Miller says, go see Miller, and whatever he says goes." We find that the clear proof of the supervisory authority exercised by Miller reason- ably leads to the conclusion that the respondents are answerable for his statements and are bound by his uncontroverted declarations of the discriminatory nature of the discharges. In view of the above findings, we conclude that the respondents ,discriminated in regard to the hire and tenure of employment of the 11 grubbers who were discharged, and thereby discouraged member- ship in the employee representation committee and labor organization in which employees of the respondents were participating. W. R. Webb had been working for the Company for 14 years as a laborer, stillman, fireman, loader, and finally, treater. Webb attended -two of the meetings at which the plans for securing wage increases were worked out, and he also signed the petition naming Alsup and Birdsall as representatives for the purposes of collective bargaining. In December 1936 there was a serious explosion of an agitator under Webb's supervision, and the expert who was in charge of the installation of the Dubbs cracking unit recommended his discharge. 'On May 9, 1937, Superintendent Simpson assigned an inexperienced treater to work under Webb and cautioned Webb to take care of e The brief filed by the respondents states with reference to the grubber gang : "The Trial Examiner finds that they were discharged in violation of the National Labor Re- lations Act because of certain statements made by Albert Miller, a truck driver, and Points out that Miller was not called upon to deny the statements alleged to have been made by him The reason he was not called upon is plain. The Refining Company is not responsible for every word said by one employee to another. Albert Miller was of the same dignity as an employee as any of the individuals whose services were terminated. He was a truck driver and often was told where the men should work, and who should work at respective places merely because he was assigned the responsibility of conveying them from one place to another He neither employed them nor discharged them, and .there was no evidence to reflect that he was more than a day laborer himself" DECISIONS AND ORDERS 751 him. Within an hour thereafter, the new man was severely burned by an explosion of a caustic solution used in treating and was taken to the hospital. Simpson testified that when he passed by Webb's vat 2 days later and discovered a heavy haze of gasoline fumes roll- ing off the top, he promptly discharged him. Webb's own testimony as to his discharge is in part as follows : "Simpson told me he was laying me off because I didn't know how to treat gasoline . . . He said that when he first came there . . . he thought the way I talked that I was learning, but he saw it was impossible." We find that Webb's inefficiency, as demonstrated by the serious accidents which occurred in connection with his work, rather than activity on behalf of a labor organization, was the cause of his discharge. The allegations of the complaint with respect to the discharge of W. R. Webb will therefore be dismissed. The next two discharges with which we are concerned occurred several weeks later. In the meantime organizational activity resulted in affiliation with an outside union. On May 8 John L. Coulter, international vice president of the Oil Workers, came to Electra and arranged a mass meeting for the night of May 11. At this meeting 35 signatures were affixed to an application for a local charter. Coulter appointed Alsup as secretary-treasurer of the group, and on- May 14 a charter was issued by the Oil Workers to Electra Local No. 400. Several employees of the casinghead gasoline plant decided to, form a union which was not affiliated with any national organization,. and on May 13 and 14 petitions favoring the formation of the Em-- ployees Federation were circulated in each of the oil departments. A meeting of all the employees of the oil activities of.the respond- ents was held on May 21, and Coulter, on behalf of Electra Local No. 400, and M. M. Wade, attorney for the Employees Federation, debated the merits of the respective organizations. As was noted` above, on May 24, the Employees Federation filed with the Board a petition requesting an investigation and certification of representa- tives, and on the next day the Oil Workers filed a similar petition. Stewart Hatch, a reporter for the Vernon Daily Record, made a. regular practice of stopping at Cocanower's office every few days, to inquire for news. When he came to the office about May 24, Cocanower handed him a written statement which had been prepared in advance. The statement read as follows : MEMORANDUM TO THE PRESS Mr. R. G. Cocanower, manager of the Waggoner Refining Company, today announced that he was in receipt of informa- tion from the National Labor Relations Regional Director,. 752 NATIONAL LABOR RELATIONS BOARD Edwin A. Elliott, of Fort Worth, Texas, that a complaint would be filed against the Waggoner Refining Company within the next few days. This information, Mr. Cocanower said, came to him as a result of a visit to Vernon of J. L. Coulter, an official in the C. I. 0. from Washington, D. C. Complaint to be filed against the Waggoner Refining Com- pany resulted from charges made before the Regional Director by J. L. Coulter, alleging that certain employees with the Waggoner Refining Company had been discharged as a result of union activities. Mr. Cocanower expressed himself as being surprised that any union had operated in the Electra territory prior to the arrival of C. I. 0. representative, J. L. Coulter. The officials of the Waggoner Refining Company informed the Regional Director that they, had violated no provisions of the National Labor Relations Act and were prepared to re- fute the charges that had been filed against them. Mr. Cocanower made the statement today that the agitation of C. I. 0. organizers and the dissemination of inflammatory propaganda had resulted in 331/3 percent increase in refinery costs and in efficiency [sic] ; that it was now problematical with the owners of the company whether the refinery should continue in operation or abandon its operations until after the current charges and attendant labor problems have been solved. Mr. Cocanower called special attention to the hazardous nature of the refinery operation and pointed out that so long as some of the employees were giving such attention to C. I. 0. organi- zation that safety requirements would make it obligatory that operations cease. The officials of the refinery did not indicate whether the operation of the plant would be abandoned immediately. At the same time Cocanower gave Hatch an order for 100 copies of the issue which would carry the story. The Vernon Daily Record of May 25 appeared with a front-page article which quoted the statement with but minor changes, and the ordered copies were placed near the refinery time clock and circulated among the em- ployees. The refinery continued operations, and the record does not indicate that any steps were ever taken towards abandoning operations. J. W. Phipps, one of the complaining witnesses, testified as follows regarding seeing Cocanower in Electra on June 1: "We boys were going to have a meeting of the Union up there . '.. and he (Coca- nower) asked me where did we have it and I told him I didn't know anything about one, and he said that he had been watching for that DECISIONS AND ORDERS 753 for some days . . . He said, `I am going to be there and I am going to take the names down, and some of those damn fellows are going to get their ears pinned down."' When asked by counsel for respondents whether he had made the above statement, Cocanower replied : "Mr. Phipps never listened to a conversation that long in his life. It is absolutely absurd that I would have a conversation like that with Mr. Phipps." The findings of fact made by the Trial Examiner who conducted the hearing adopt the testimony of Phipps in preference to' the indirect denial of Cocanower. In view of the newspaper release indicating a strong anti-union bias and threaten- ing retaliation by cessation of operations, which was issued by Cocanower about the same time, we are of the opinion that belief in the testimony of Phipps is more reasonable. The Employees Federation held a meeting on June 14, which was attended by about 100 employees, many of them members of Electra Local No. 400. Wade again spoke of the advantages of joining the Employees Federation, while Birdsall made a speech on behalf of the Oil Workers local. Gilbert A. Birdsall and J. W. Phipps had worked in the refinery for 11 and 13 years, respectively. They were both discharged on the same day, June 16, 1937. After working as a laborer and gauger for one year, Birdsall was given the position of laboratory chemist which he held until June 16. At the time of his discharge Birdsall was earning $175 a month, having received an increase of $10 on March 23. His prominence in the organization of the employees of the respondents, and the recognition of his importance by the management is clearly estab- lished by the record. As stated above, Birdsall arranged for the initial meetings at which the scheme of electing committeemen was worked out, and, accompanied by Alsup, he represented the first department to discuss wage proposals and other stipulations with Cocanower. On March 22 Cocanower prevailed upon him not to resign because of the disturbing statement which Cocanower had read to the men. Cocanower also had a conversation with Birdsall following Alsup's discharge, the exact remarks being in dispute. Birdsall was active in circulating the petition which named Alsup and himself as representatives for collective bargaining, and together with Alsup he played a leading part in the affairs of Electra Local No. 400, the C.I.O. organization mentioned in Cocanower's press release. Phipps had worked on the loading racks for 5 years before his discharge, and with an hourly increase of 5 cents which he obtained on March 23, was being paid 70 cents an hour. His job consisted of loading petroleum products into tank cars at the refinery rail- road siding and of taking samples to be tested by Birdsall in the 754 \-1TI0\?,L LABOR RELATIONS BOARD laboratory before the cars were released for shipment. While not an outstanding figure in the development of the labor organizations,. Phipps was present at nearly all the organizational meetings in March, signed the Alsup and Birdsall petition of May 5, and attended the meetings of Electra Local No. 400. About a month before his discharge, Phipps, as he was carrying a report to the refinery office, bumped into a pipe and skinned his forehead. Superintendent Simpson noticed the blood, became rather excited, and said "What have you done? . . . How long have you been working up there? . . . You don't even know where all your lines are at ..." Later during the same morning, Cocanower came out on the loading rack where Phipps was working. The further testimony of Phipps is as follows : I asked Mr. Cocanower . . . if these little scratches were going to be marked up against a person up there on that loading rack, and Mr. Cocanower says, `'Hell, no !", that is the words he told me . . . Mr. Cocanower and I were standing there talking and -Mr. Birdsall he walked out then, he was up a pretty good piece from us going out toward the loading rack. I asked Mr. Co- canower, "What in the hell is the matter down here, it don't seem like lam getting along with anybody?" So Mr. Cocanower says, "Well, he is a new man down here, go on up there and go to work." Mr. Cocanower looked up and saw Mr. Birdsall walking toward the loading rack and he said, "If we could get rid of that damn fellow there, our troubles would all be over. He is causing the whole stink down here among the men." Upon examination by counsel for the respondents, Cocanower tes- tified as follows : Q. Did you ever point out to anybody, "There is the man," Birdsall that is, "If I could get rid of him everything would be straightened out?" A. Mr. Phipps testified I approached him at. the time he had this abrasion on his forehead, and he mentioned that Mr. Simp- son had kinder gotten on him about it and I told him to forget it, and as a matter of fact Mr. Birdsall was down at the lab- oratory, I couldn't see him. Q. Did you make that statement he testified to l A. No, absolutely not. In balancing this conflict of testimony we are impressed by the lack of clearness in Cocanower's denial and by his failure to dis- close the extent of the conversation with Phipps or to specify whether the conversation took place at all. We are of the opinion that acceptance of the story of Phipps is more reasonable. DECISIONS AND ORDERS 755 On the afternoon of June 15 , Simpson called Birdsall and Phipps into - his office and stated that a complaint had been received from a ,customer who had found 75 gallons of water in a tank car of gasoline shipped by the refinery . Simpson's testimony continued : "I asked them what they knew about it and what could be done about it and they said there was nothing they could do about it ... Well, this is the same answer I get at all times when I have these complaints. After a little more discussion , I told Phipps, `Well, Jack, you report to Ray Johnson.' As we started out, as an afterthought , I said, `Birdsall you report to him too."' On the following morning, Birdsall returned to his work in the laboratory . Phipps came through the refinery yard, and went to- wards Johnson who was standing with some men . Johnson said nothing to him and walked away; Phipps then went back to his work on the loading rack . Simpson's testimony upon examination by counsel for the respondents proceeded as follows : Shortly after eight o'clock . . . I went into the laboratory and Mr. Birdsall was in the laboratory running some tests. I asked him if-he had understood me the night before when I told him about reporting to Mr. Johnson. He said he had, and I asked him if he was going to report . I asked him first if he had reported and he said no, and then I asked him if he was going to report and he said no, and the circumstances there kind of got ine. I didn't hardly know what to do . . . I got a few fellows in and asked him to repeat it. In the meantime Mr. Johnson had come in. Q. Did he say anything about, "There is Mr. Johnson ?" A. Yes, he did. Q. What did you say in response to that? A. I told him he was to report to Mr. Johnson and Mr. John- son not to report to him . . . I gave him plenty of time to think it over and see if he wasn't acting a little hasty, and I finally said, "Well, you're discharged" .. . He said, "That is -fine, that is what I want." 10 Simpson then started looking for Phipps . When he found him on the loading rack and was told that he had not reported to Johnson, Simpson called him down to the laboratory, brought in witnesses, and went through practically the same scene . Simpson testified : "We went through the whole thing again and he (Phipps) said he wasn't going to report and said I couldn't legally transfer him and I gave him several more chances to say lie would report but he didn't, so I told him he was discharged and he said, `Thank you, thank you."' 10 Birdsall testified that after he was told that he was dischai ged, he said, "I have been waiting to hear you say that." 756 NATIONAL LABOR RELATIONS BOARD Simpson testified that the transfers were intended to be without any reduction in pay and of a temporary nature for the purpose of locating the difficulty concerning the water found in the gasoline, and he admitted that both Birdsall and Phipps were efficient em- ployees and would not have been discharged except for the refusal to accept the transfers. Since Simpson conceded that when he told the two men to report to Johnson he said nothing about the change being temporary and said nothing about their wages, the paramount question involved is the reasonable interpretation of the direction to report to Johnson. The respondents' answer and brief allege that Birdsall and Phipps were requested to report to the assistant super- intendent, and at the hearing Simpson also referred to Johnson as being the assistant superintendent of the refinery. Upon examina- tion by counsel for the Board, Simpson testified : Q. When did he (Johnson) become your assistant? A. As soon as I had him out in the yard with me. Q. Had he been an assistant superintendent prior to that, time, do you know? A. No, he had not. Q. He was in charge of the yard gang, wasn't he? A. Not necessarily, . . . You see we are a small place, and we won't be cluttered up with foremen, so we had a working agreement this way; that he would take those men and give them their direct instructions. Q. Which men, the yard men? A. The day laborers. And I was to handle the operations most of the time, but whenever I wasn't there he was to take full charge. Trial Examiner : And during most of that time you were at. the plant? A. Yes. Trial Examiner : You didn't go away very much, did you? A. Not much. Trial Examiner : And Johnson handled more the manual as- pects, I suppose? A Yes, and occasionally he handled operations. I would like for him to do that more. R. B. McAfee, a truck driver employed by the Company, termed' Johnson "the gang pusher," a title applied to subforemen and straw- bosses. Birdsall and Phipps testified that Simpson had told them to, "Report to Mr. Johnson on the yard," and that Johnson was then and always considered the yard foreman in charge of the unskilled laborers who earned 48 or 53 cents an hour. DECISIONS AND ORDERS 757 We are convinced that the order to report to Johnson was intended as a marked demotion in the positions of Birdsall and Phipps, and as a reduction in their salaries. In the case of Birdsall, the testi- mony presented by the respondents that he was considered to be in charge of the treating and loading work makes the demotion to yard labor even more pronounced. It is also significant that about 3 weeks before June 15, Cocanower, who throughout his testimony em- phasized that he does not normally hire or discharge employees, sent a new man to the refinery laboratory to assist Birdsall. Birdsall had not requested any assistance, but by the time of his discharge the new man was able to continue with the laboratory work. In Phipps' case it is significant that when Simpson called him into the office on June 15, his time card was not in the rack with all the other cards but was on a desk in the office. The respondents' conten- tion that the transfers were intended to be temporary and without any reduction in wages is without reasonable substantiation in the record. Although Phipps' efforts in behalf of a labor organization were not outstanding, his work was closely related to that of Birdsall, and his demotion served as the basis for adding Birdsall's demotion ostensibly as an afterthought. From all the evidence we find that the demotions of both Birdsall and Phipps were due to their activi- ties on behalf of a labor organization. Birdsall and Phipps might have accepted the discriminatory demotions and subsequently filed charges alleging that the Company was engaging in an unfair labor practice. It was equally justifiable for them to have refused to accept the discriminatory demotions and to have resigned. Thus their refusals to submit to an unfair labor practice cannot be con- sidered acts of insubordination and cannot justify the discharges. We find that the respondents discriminated in regard to the hire and tenure of employment of Gilbert A. Birdsall and J. W. Phipps, and thereby discouraged membership in the Oil Workers. We find that at the time of the hearing, Don B. Alsup, W. H. Fowler, J. F. Holton, R. T. Marshall, M. B. Martin, J. C. Muse, Clifton Riggins, D. W. Sitz, H. E. Sitz, M. M. Thomas, A. J. Wells, B. E. Brothers, Gilbert A. Birdsall, and J. W. Phipps had not obtained any other regular and substantially equivalent employment. We find that the afore-mentioned men were discharged because of activities on behalf of a labor organization, and that by such dis- charges the respondents have discriminated in regard to hire and tenure of employment, thereby discouraging membership in a labor organization, and that by such acts, the respondents have interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. '758 NATIONAL LABOI; RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES IIPON COMMERCE We find that the activities of the respondents set forth in Section III' above, occurring in connection with the operations of the re- spondents described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY The brief and exceptions filed by the respondents object to any order being directed against the Estate on the ground that it was found by the Trial Examiner that each of the complaining witnesses, including the grubbers, was at the time of his discharge performing work at the refinery department of the Company. The proof adduced by the respondents with reference to the em- ployer of the grubber gang is a series of contradictions. General Manager Cocanower testified that the grubbers were never on the refinery pay roll. Yet after the beginning of 1937 they were paid with Company checks. H. U. Jackson, who was in charge of em- ploylnent for the Estate, testified that although he continued to make out all checks issued to employees of the Estate, he had nothing to do with the salaries of the grubbers after August 1936, and did not discharge them. The respondents' answer alleges that the work of the grubber gang was terminated by "Jackson, as agent of the Estate," when he discontinued sending out the truck. The re- spondents' brief states that the gang "left the employ of the Coin- pany because day-to-day labor was no longer available which these individuals could perform." Although we have concurred in the finding of the Trial Examiner that during 1937 the grubbers did most of their work in the refinery, on occasion, they worked at the water stations which are part of the Estate's oil activities and also hauled miscellaneous junk and pipes from the oil field to the refinery. Since we have found that the respondents' oil departments operate as a unified business venture, it is unnecessary to resolve the con- fusion which the respondents have created, and we shall order both the Estate and the Company to offer reinstatement to the discharged employees to their former positions or to substantially equivalent positions in any of said departments. Although the Trial, Examiner recommended that the respondents be required to offer reinstatement to the 11 members of the grubber gang, he did not recommend the payment of back pay. In accord- ance with our usual practice, we shall, in addition to an order to cease and desist from their unfair labor practices, require the re- DECISIONS AND ORDERS 759 spondents to offer reinstatement and to pay back-pay to the em- ployees who were discriminatorily discharged. VI. THE QUESTION CONCERNING REPRESENTATION The petition of the Employees Federation requested the Board "to determine the departments which should legally compose the bargaining unit." The petition filed by the Oil Workers set out a unit claimed to be appropriate , but admitted that a number of employees had joined both organizations and that it was impossible without an election to determine which was entitled to recognition as the sole bargaining agency. We find that a question has arisen concerning representation of employees of the respondents. VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the respond- ents described in Section I above, has a close,' intimate , and sub- stantial relation to trade, traffic , and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VIII. THE APPROPRIATE UNIT At the hearing the Oil Workers and the Employees Federation stipulated that the employees of all the oil departments of the re- spondents, excluding supervisory employees and the general office force in Vernon, Texas, constitute a unit appropriate for the purposes of collective bargaining. The respondents refused to join in the stipulation and objected to any unit which combined employees of the Company with em- ployees of the Estate. The testimony of members of both labor or- ganizations clearly confirms the finding which we have made above that all the oil departments comprise a single business venture and that the separation of the Company and the Estate into two legal - entities is not carried over into the operations, management , or owner- ship. The employees of the production , water, and casinghead gaso- line departments of the Estate and of the pipe-line department of the Company all work in the oil field and, for the most part , live there. The Company's refinery is located 21 miles away from the oil field, but its operations are entirely dependent upon the other de- partments and its employees have by their past organizational ef- forts shown a close contact with the employees in the field. Coca- 80618-38-von vi--4O 760 NATIONAL LABOR RELATIONS BOARD- power, the general manager of all the oil departments, determines the labor policies from a common general office, with the result that wages and working conditions are similar. Although the status of the service-station employees is not defi- nitely covered by the stipulation, the petition of the Oil Workers excluded these employees from the appropriate unit. Some of the' service stations are located in Fort Worth, which is far removed from the refinery or oil field, and the duties of the attendants are entirely dissimilar to those of the refinery or field employees. Since the serv- ice-station employees, together with several clerical workers in Vernon and a claims adjuster in Des Moines, Iowa, are classified as the sales and traffic department, we shall exclude this entire depart- ment. The I. A. M. in its motion to intervene and supporting brief and the I. B. E. W. and the Boilermakers in their letters of protest con- tend that collective bargaining should proceed on a craft basis. The contention of the I. A. M. is based upon an agreement between the Oil Workers and the I. A. M. in which the Oil Workers; at. that time affiliated with the American Federation of Labor, agreed not to accept or retain in its membership men employed in the petroleum industry over whom the I. A. M. had been granted jurisdiction by the American Federation of Labor. This agreement was considered by us in Matter of The Texas Company, West Tulsa Works and Oil Workers' International Union, Local No. 01711 and was found to be of no controlling weight. Neither the I. A. M., the I. B. E. W., nor the Boilermakers appeared at the hearing, and the record,does not indicate that any employee of the respondents is a member of any of these organizations, or that they have ever claimed to repre- sent, or bargained for, any of the employees. We find that the employees in the production, casinghead gasoline, water, pipe-line, and refinery departments of the respondents, ex- cluding supervisory employees, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the respondents the full benefit of their right to self- organization and to collective bargaining and otherwise effectuate - the policies of the Act. IX. THE DETERMINATION OF REPRESENTATIVES For the reasons stated above, we find that the question which has arisen concerning representation can best be resolved by means of an election by secret ballot. At the hearing the Oil Workers and the Employees Federation stipulated that in the event of an election, all employees in the appropriate unit who were on the pay roll of the respondents as of April 15, 1937, should be eligible to vote. No 114 N. L. R. B 182 DECISIONS AND ORDERS 761 reason was given for choosing this date, which is not the latest pay-roll date prior to the filing of the petitions, and in view of the lapse of time, we do not find this eligibility date satisfactory. We find a more suitable standard of eligibility to be those persons in the appropriate unit who were employees of the respondents during the pay-roll period next preceding the date of the Direction of Election in this case, including all employees discriminatorily discharged. Upon the basis of the above findings of fact and upon the entire record in the cases, the Board makes the following : CONCLUSIONS OF LAW 1. Electra Local No. 400, International Association of Oil Field, Gas Well and Refinery Workers of America, Employees Federation of the Waggoner Refining Company and W. T. Waggoner Estate, International Association of Machinists, International Brotherhood of Electrical Workers, International Brotherhood of Boilermakers, Iron Ship Builders, Welders and Helpers of America, and the group of employees of the respondents who participated in the selection and designation of employee representation committees for the purposes of collective bargaining, are labor organizations within the meaning of Section 2 (5) of the Act. 2. The respondents, by discriminating in regard to the hire and tenure of employment of Don B. Alsup, W. H. Fowler, J. F. Holton, R. T. Marshall, M. B. Martin, J. C. Muse, Clifton Riggins, D. W. Sitz, H. E. Sitz, M. M. Thomas, A. J. Wells, B. E. Brothers, Gilbert A. Birdsall, and J. W. Phipps, and each of them, and thereby dis- couraging membership in a labor organization, have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. The respondents, by interfering with, restraining, and coercing their employees in the exercise of rights guaranteed in Section 7 of the Act, have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The respondents have not engaged in unfair labor practices with- in the meaning of Section 8 (3) of the Act with respect to the discharge of W. R. Webb. 6. A question affecting commerce has arisen concerning the repre- sentation of employees of Waggoner Refining Company, Inc., and W. T. Waggoner Estate, Vernon, Texas, within the meaning of Sec- tion 9 (c) and Section 2 (6) and (7) of the Act. 7. The employees in the production, casinghead gasoline, water, pipe-line, and refinery departments of the respondents, excluding 762 NATIONAL LABOR RELATIONS BOARD supervisory employees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. ORDER Upon the basis of the findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondents, Waggoner Refining Company, Inc., and W. T. Waggoner Estate, and their officers, trustees, agents, successors, and assigns shall : 1. Cease and desist : (a) From discouraging membership in any labor organization of their employees, by discharging or refusing to reinstate any of their employees or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their em- ployment or by threats of such discrimination; (b) From in any other manner interfering with, restraining, or coercing their employees in the exercise of the rights to self-organiza- lion, to form, join, or assist labor organizations, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection, guaranteed in Section 7 of the Act. 2. Talie the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Don B. Alsup, W. H. Fowler, J. F. Holton, R. T. Marshall, M. B. Martin, J. C. Muse, Clifton Riggins, D. W. Sitz, H. E. Sitz, M. M. Thomas, A. J. Wells, B. E. Brothers, Gilbert A. Birdsall, and J. W. Phipps immediate and full reinstatement to their former positions or to substantially equivalent positions in any of the departments of the respondents' oil operations without prejudice to their seniority or other rights and privileges; (b) Make whole the persons named in paragraph (a) above for any loss of pay they have suffered by reason of their discharge, by payment to each of them, respectively, of a sum of money equal to that which each of them, respectively, would normally have earned as wages during the period from the date of his discharge to the date of the offer of reinstatement, less any amount he earned during such period; (c) Post immediately notices in conspicuous places where they will be observed by the respondents' employees, stating that the respondents will cease and desist as aforesaid; and keep such notices posted for at least thirty (30) consecutive days from the date of posting; DECISIONS AND ORDERS 763 (d) Notify the Regional Director for the Sixteenth Region in writing within ten (10) days from the date of this order what steps the respondents have taken to comply herewith. And it is further ordered that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondents have discrim- inated against persons other than those referred to in paragraph 2 (a) above. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 1, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for collective bargaining with Waggoner Refining Company, Inc., and W. T. Waggoner Estate, Vernon, Texas, an election by secret ballot shall be conducted within twenty (20) days from the date of this Direction, under the direction and super- vision of the Regional Director for the Sixteenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9,,of said Rules and Regulations, among all the employees in the production, casinghead gasoline, water, pipe-line, and refinery departments of Waggoner Refinery Company, Inc., and W. T. Waggoner Estate, excluding supervisory employees, who were employed during the pay-roll period next preceding the date of this Direction, to determine whether they desire to be repre- sented by Electra Local No. 400, International Association of Oil Field, Gas Well and Refinery Workers of America, or by Employees Federation of the Waggoner Refining'Company and W. T. Waggoner Estate, for the purposes of collective bargaining, or by neither. [SAME TITLE] AMENDMENT TO DIRECTION OF ELECTION April 29, 1938 On April 21, 1938, the National Labor Relations Board, herein called the Board, issued a Decision, Direction of Election, and Order in the above-entitled proceedings. The name of International Association of Oil Field, Gas Well and Refinery Workers of America having been changed to Oil Workers International Union, the Board hereby amends its Direction of Elec- tion by striking therefrom the name, "International Association of Oil Field, Gas Well and Refinery Workers of America," wherever it occurs, and substituting therefor the name, "Oil Workers Interna- tional Union."