Stewart Oil Co.

4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Certification of Representatives IT IS HEREBY CERTIFIED that Cleaners & Laundry Workers, Local 457, Amalgamated Clothing Workers of America, CIO, has been desig- nated and selected by a majority. of the Employer's production and maintenance employees at its Washington, D. C., plants, including the drivers and the watchmen, but excluding all store clerks, all other clerical employees, the engineer, and supervisors as defined in the Act, as their representative for the purposes of collective bargaining and that, pursuant to Section 9 (a) of the Act, the said organization is the exclusive representative of all such employees for the purposes of col- lective bargaining with respect to rates of pay, wages, hours of employ- ment, and other conditions of employment. MEMBERS HOUSTON and STYLES took no part in the consideration of the above Supplemental Decision and Certification of Representatives. W. E. STEWART AND LELA STEWART, D/B/A STEWART OIL COMPANY and OIL WORKERS INTERNATIONAL UNION, CIO. Case No. 16-CA78. July 7,1952 Decision and Order On October 29, 1951, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in-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. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Respondent's exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications and additions : 1. The Respondent excepts to the Trial Examiner's finding that on March 23, 1951, the Union represented 7 of the Respondent's 13 em- ployees in an appropriate unit at its East Texas field, alleging that: (a) On the date in question, A. D. Adams was employed as a pulling- machine operator, a supervisory classification, and therefore could not be included in the unit; and (b) the Respondent's Oil City, Louisiana, field should have been included in the unit. As to (a), Adams was regularly employed as a roustabout, a nonsupervisory clas- sification. On March 23, 1951, he was substituting briefly in a super- 100 NLRB No. 14. STEWART OIL COMPANY 5 visory classification for Newt Stewart, who was ill. There is no credible evidence as to any other occasion on which he functioned as a supervisor. We do not believe the fact that he was substituting as a supervisor on March 23 constitutes him a supervisor within the meaning of the Act.' Accordingly, Adams is included in the unit found appropriate herein. As to (b), the Respondent's oil- and gas-producing operations are located in four fields-East, West, and South Texas, and Oil City, Louisiana.' The Respondent's superintendent is in charge of all fields but spends most of his time at the East Texas location. Records and payrolls for the entire operation are kept at the home office near the East Texas field. There are at the East Texas field pumpers, switch- ers, roustabouts, truck drivers, mechanics, and pulling-machine oper- ators. At the Louisiana field, which is situated 80 to 85 miles from the East Texas field, there is only one pumper, who effectively recom- mends the employment of helpers, as needed, to assist him for short period S.3 There is some contact between these two operations. In the 6-month period preceding March 31, 1951, the Respondent's two truck drivers each averaged approximately two trips a month between the two fields carrying supplies and equipment; on occasion employees from the East Texas field perform temporary well-pulling functions in the Louisiana field; and the pumper at the Louisiana field was formerly employed in the East Texas field. In view of the functional independence of the East Texas field, the infrequent trips between the fields, and the geographic separation, we find that a unit con- fined to the East Texas field is appropriate. Moreover, the pumper in the Louisiana field possesses the authority, which he has exercised effectively, to recommend the hiring of employees, whom he may also discharge. The temporary tenure of these employees does not. negate the existence of authority in the pumper regularly to employ person- nel when needed. Accordingly, the supervisory status of the pumper in the Louisiana field constitutes added reason for excluding him from the unit. We find, therefore, in agreement with the Trial Examiner, that all pumpers, switchers, roustabouts, truck drivers, and mechanics em- ployed at the Respondent's East Texas field, exluding drillers, rough- necks, gang pushers, office and clerical employees, and all supervisors, constitute an appropriate unit. We further find that on March 23, 1951, a majority of the employees in the appropriate unit had desig- nated the Union as their bargaining agent, and that on that date and 'Salt Lake Refining Company, 86 NLRB 68 ; E. I. duPont de Nemours and Company, Inc., 85 NLRB 1517. 2 The Respondent does not argue in its brief that the remote west and South Texas fields should be included in the unit. ' This authority is also exercised by the single pumper in the west and South Texas fields. 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at all times since then the Union has been the representative for the purposes of collective bargaining of all employees in the unit. 2. The Trial Examiner found, and we agree, that the Respondent violated Section 8 (a) (1) and (3) of the Act by discharging pump- ers G. T. McClure and Emmet R. Broadus on April 6, 1951, because they refused to sign individual contracts of employment at a time when the Union, as the exclusive representative of the Respondent's employees, had made a request to bargain. The Respondent excepts to these findings on the ground that the individual contracts were designed to comply with the overtime requirements of the Fair Labor Standards Act as suggested to them by wage and hour investigators. We find no merit in this contention. As the pumpers in the Respondent's employ worked irregular hours, the Respondent sought to come under Section 7 (e) of the Fair Labor Standards Act; which provides that an employer may fix his liability for the payment of overtime compensation, in circum- stances of irregular hours of work, by entering into employment con- tracts establishing a weekly guarantee of pay.4 However, adoption of a Section 7 (e) contract is not mandatory and, in the absence of such an agreement, the basic overtime compensation of time and one- half the regular rate for all hours worked in excess of 40 hours per week, as set forth in Section 7 (a) of the Fair Labor Standards Act, applies. Contractual overtime arrangements may be entered into, as stated in Section 7 (e) : pursuant to a bona fide individual contract or pursuant to an agreement made as the result of collective bargaining by repre- sentatives of employees. . . . Clearly, therefore, the Fair Labor Standards Act recognizes that where, as here, an employer chooses to avail himself of the guaranteed weekly pay method of compensation for overtime and his employees are represented by a bargaining agent, the proposed contract is subject to the collective bargaining requirements of the Act. That the two statutes contemplate this harmony of purpose is further evidenced by Section 7 (b) (1) and (2) of the Fair Labor Standards Act which allows partial exemption from overtime requirements by the use of specified semiannual and annual wage contracts "in pursuance of an 4 Section 7 (e) provides : "No employer shall be deemed to have violated Subsection (a) [time and one-half the regular rate for hours in excess of 40] by employing any employee for a workweek in excess of 40 hours if such employee is employed pursuant to a bona fide individual contract or pursuant to an agreement made as the result of collective bargaining by representatives of employees, if the duties of such employees necessitate irregular hours of work , and the contract or agreement ( 1) specifics a regular rate of nay of not less than the minimum hourly rate provided in Section 6 (a) and compensation at not less than one and one-half times such rate for all hours worked in excess of forty in any workweek, and (2) provides a weekly guaranty of pay for not more than sixty hours based on the rates so specified." 63 Stat. 912, 29 USC Sec. 207 ( 1949). STEWART OIL COMPANY 7 agreement, made as a result of collective bargaining by representatives of employees certified as bona fide by the National Labor Relations Board." Furthermore, even assuming, as the Respondent urges, that the individual contracts were terminable at will 5 and would therefore yield to any later collective bargaining agreement, the vice of the Re- spondent's conduct lies not in the duration of the contracts but in the imposition of unilateral terms of employment in derogation of the ex- isting bargaining representative with whom the Respondent was duty bound to deal.6 We find therefore that by requiring its employees to sign individual contracts when a collective bargaining representative had been desig- nated, the Respondent restrained and coerced its employees in the ex- ercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1) of the Act. We further find that by discharging Broadus and McClure for refusing to sign such contracts, the Respond- ent discriminated in regard to their hire and tenure of employment thereby discouraging membership in the Union in violation of Section 8 (a) (3) of the Act. Whether the discrimination against Broadus and McClure be viewed as a violation of Section 8 (a) (3) or 8 (a) (1), or both, we find that the remedy of reinstatement and back pay is ap- propriate and necessary to remedy the unfair labor practices involved. 3. Like the Trial Examiner, we find, for the reasons set forth in the Intermediate Report, that economic necessity was a pretext' and that the Respondent discharged employees Adams, Allen, Elmer R. Broadus, Lindsey, and Hodges because of their union membership, in violation of Section 8 (a) (3) and (1) of the Act. 4. We find, as did the Trial Examiner, that while the union mem- bership drive was on, the Respondent interrogated its employees 8 about union activities and uttered threats of reprisal in violation of Section 8 (a) (1) of the Act. 5. The Trial Examiner found that the Respondent refused to bar- gain with the Union in violation of Section 8 (a) (5) of the Act. The We note that the contracts in question stipulated a monthly guarantee of pay and failed thereby to comply with the weekly pay guarantee proviso of Section 7 (e). Further, while wage and hour investigators made contract overtime suggestions to the Respondent, they did not in any manner purport to approve the contracts in question. Nor does it appear that the Respondent notified the investigators of the Union 's bargaining request. 6 J. i. Case v. N. L. R. B., 321 U. S . 332 ; Medo Photo Supply Corp . v. N. L. it. B., 321 U. S. 678. 7 The Respondent contends that its pulling machines were in need of repairs and that this factor was also involved in the "stacking" of the machines as well as their desire to contract the work out. While it appears that the Respondent 's machines were in need of repairs at the time of the shutdown, this condition had existed for some time before the shutdown. Moreover, the machines were repaired within a week after the curtailment. Finally, Superintendent Dorris made no mention of repairs when he informed four of the employees who were discharged of the "stacking" of the machines for a period of 30 days. 6 In addition to the instances of interrogation found by the Trial Examiner , we find that on or about April 14, 1951 , the Respondent's Supervisor Hill asked employee Hodges if he belonged to the Union , in violation of Section 8 (a) (1) of the Act. 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent excepts thereto, alleging that by filing a representation petition with the Regional Office of the Board on April 4, 1951, the Union relinquished any right it may have had to bargain until Board determination of the representation question. We do not agree. The Union's letter of March 23, 1951, which the Respondent received on or about March 26,° requested recognition as the exclusive bargain- ing representative of the Respondent's production employees and a meeting to negotiate a contract. On April 4, the Union filed its repre- sentation petition and, on the same date, the Board's Regional Office informed the Respondent of the Union's petition and of the avail- ability of a consent-election procedure. On April 5, the Union, having had no response from the Respondent to its March 23 letter, wrote another letter suggesting to the Respondent a meeting to arrive at a consent-election agreement. On April 6, the Respondent, as we have found, unlawfully discharged Broadus and McClure for refusing to sign individual employment contracts. Union Representative Mat- tern, in a telephone conversation with Stewart on April 9, stated that the Union had filed a petition because the Respondent failed to reply to the Union's March 23 letter. Mattern reiterated the Union's re- quest for recognition and a meeting to negotiate a contract. Stewart answered that he had no reason for recognizing the Union and did not give a direct reply to the request for a meeting. Mattern repeated the substance of the conversation in a letter to the Respondent dated April 9. Stewart wrote to Mattern on April 11, "I do not concur with the statements made in your letter nor with the claims which you assert." On the same date, the Respondent informed the Regional Office in writing, with a copy to the Union, that they would not agree to a con- sent election because "We have been furnished with no evidence that the [Union] represents a sufficient number of our employees to call for an election," and requested that they be notified of further pro- ceedings 10 On April 16, the Respondent discharged five employees in violation of the Act. In view of the foregoing, it is clear that from March 26 to April 9 the Respondent made no reply either to the Union's request to bargain or to the request for a meeting. On April 9 the Respondent, faced with the same request, refused to bargain and evaded a commitment 0 Like the Trial Examiner, we discredit Dorris' denial that he received the Union's letter of March 23 and gave it to W. E. Stewart as contrary to the clear preponderance of the evidence. We also find, in the testimony of Assistant Superintendent Sanders, that Dorris showed him the Union's letter claiming a majority , admission of the fact that Dorris received the letter. Even assuming that Dorris did not give the letter to Stewart, Dorris was, in large measure, responsible for the Respondent's employment relations and notice to Dorris was therefore notice to the Respondent. 10 We note, as pointed out by the Respondent, that the Trial Examiner omitted reference to the Respondent's letters of April 11 to the Union and the Regional Office The Trial Examiner also failed to refer to the Union's letter of April 5. This does not, however, affect his ultimate finding of a refusal to bargain nor our agreement therewith. STEWART OIL COMPANY 9 as to a meeting without, however, questioning the Union's assertion of majority status. Again on April 11 the Respondent denied the Union's request, this time indirectly indicating that its refusal was based upon doubt as to the number of employees the Union was author- ized to represent. But the Respondent made no demand that the Union prove its majority claim. Indeed, the sincerity of the Re- spondent's doubt and its alleged reliance upon the outcome of the representation proceeding are belied by the fact that, faced with the Union's bargaining request, the Respondent engaged in discriminatory discharges and other violations of the Act. Having succeeded by its unlawful conduct in undermining the Union's majority in rejection of the collective bargaining principle, the Respondent may not avail itself of the Union's petition as a defense to its refusal to bargain."" Accordingly, we find that on or about March 26, 1951, and at all times thereafter, the Respondent refused to bargain collectively with the Union as the exclusive representative of the employees in the unit found appropriate, in violation of Section 8 (a) (5) and (1) of the Act. The Remedy Subsequent to the issuance of the Intermediate Report, the Respond- ent moved to reopen the record to adduce evidence as to its alleged offers of reinstatement to Emmet R. Broadus and G. T. McClure made after the hearing closed. In support of its motion, the Respondent alleges : On October 10, 1951, it made written offers of employment to Broadus and McClure as roustabouts. On October 19, Broadus and McClure replied stating that they were entitled to reemployment as pumpers and to the company-owned houses which they formerly occu- pied. On October 19 the Respondent answered that due to commit- ments to other employees, it was unable to comply with the requests of Broadus and McClure, and further, that the pay of a roustabout with overtime would be the same as the pay of a pumper. On October 19, the General Counsel sent letters to Broadus and McClure indicating that as the Respondent advised that there were no openings for pump- ers, they should accept the offers of employment as roustabouts or any back pay ordered by the Board would be lessened at the rate of $1 per hour. On the basis of copies of the Respondent's letters to Broadus and McClure furnished the Trial Examiner after the close of the hear- ing, the Trial Examiner found in his Intermediate Report that the offers did not constitute full reinstatement to their former or substan- tially equivalent positions, without prejudice to their other rights and privileges. Accordingly, the Trial Examiner recommended that offers 11 N. L. R. B. Y. Ken Rose Motors, Inc., 193 F. 2d 769 (C. A. 1) ; N. L. R. B. v. Inter-City Advertising Co., 190 P. 2d 420 (C. A 4), cert. den. 342 U. S. 908; N. L. R. B. V. Everett Van Kdeeck and Company, Inc., 189 F. 2d 516 (C. A. 2). 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of full reinstatement be made to these employees. Assuming, arguendo, the granting of the Respondent's motion and the introduction in evi- dence of the foregoing documents, we agree with the Trial Examiner that the Respondent's offers of reinstatement did not conform to the Board's requirements. The offers were not to their former jobs as pumpers but to jobs as roustabouts, a lower wage rated classification which did not carry with it the occupancy of a house, a perquisite of the job of pumper. The Respondent's assertion that it made commit- ments to other employees did not relieve it of the obligation to offer full reinstatement to Broadus and McClure. We do not regard the Respondent's offers as adequate nor do we concur in the views expressed in the General Counsel's letter of October 19. Accordingly, the Re- spondent's motion is denied. As Lindsey was rehired on May 21 and Allen on May 27, 1951, we shall order that they be made whole by the payment of back pay from April 16, 1951, the date of the Respondent's discrimination against them, to May 21 and May 27, 1951, respectively. With regard to Adams, Elmer Roy Broadus, and Hodges, we shall order that they be made whole by the payment of back pay from April 16 to October 5, 1951, the date of the Respondent's offer of full reinstatement for these employees. Order Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, W. E. Stewart and Lela Stewart, d/b/a Stewart Oil Company, Longview, Texas, its agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Oil Workers International Union, CIO, or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. (b) Refusing to bargain collectively with Oil Workers Interna- tional Union, CIO, as the exclusive bargaining representative of all its employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other conditions of employment. (c) Dealing individually with employees in derogation of their bargaining representative with respect to any matter properly the subject of collective bargaining. (d) Interrogating its employees concerning their union member- ship, threatening its employees with economic reprisals, or in any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or STEWART OIL COMPANY 11 assist Oil Workers International Union, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, 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) Offer to Emmit R. Broadus and G. T. McClure immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority or other right and privi- leges, and make them whole in the manner set forth in the section of the Intermediate Report entitled "The Remedy" for any loss of pay they may have suffered by reason of the Respondent's discrimination against them. (b) Make whole E. A. Allen, A. D. Adams, Elmer Roy Broadus, Buddy Lindsey, and Charles Hodges, in the manner set forth in the section above and in the section of the Intermediate Report entitled "The Remedy." (c) Upon request bargain collectively with Oil Workers Inter- national Union, CIO, as the exclusive representative of its employees in the following bargaining unit, and embody any understanding reached in a signed agreement : All pumpers, switchers, roustabouts, truck drivers, and mechanics employed by the Respondent at its Longview, Texas, field, excluding drillers, roughnecks, office and cleri- cal employees, gang pushers, and all supervisors as defined in the Act. (d) Upon request, make available to the National Labor Relations Board or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records, and all other records necessary to analyze the amounts of back pay due under the terms of this Order. (e) Post at its yard in its Longview, Texas, field, copies of the notice attached to the Intermediate Report marked "Appendix A." - Copies of such notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respond- ent's authorized representative, be posted by the Respondent imme- diately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable u This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" in the caption thereof the words "A Decision and Order ." 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 the United States Court of Appeals , Enforcing an Order." 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the Sixteenth Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. CHAIRMAN HERZOG and MEMBER MURDOCK took no part in the consideration of the above Decision and Order. Intermediate Report STATEMENT OF THE CASE Upon charges duly filed by Oil Workers International Union, CIO, herein called the Union, the General Counsel of the National Labor Relations Board, herein called General Counsel and the Board, by the Regional Director of the Sixteenth Region (Fort Worth, Texas), issued his complaint against W. E. Stewart and Lela Stewart, d/b/a Stewart Oil Company, herein called the Re- spondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charges were duly served upon the Respondent; copies of the complaint and notice of hearing thereon were duly served upon the Respondent and the Union. With respect to the unfair labor practices the complaint alleges, in substance, that the Respondent (1) discriminatorily and because of their union membership discharged employees Emmet R. Broadus and G. T. McClure on April 6, 1951, and employees E. A. Allen, A. D. Adams, Elmer Roy Broadus, Buddy Lindsey, and Charles Hodges on April 16, 1951; (2) on and after March 23, 1951, refused to bargain collectively with the Union although the Union was the exclusive bargain- ing representative of all employees in an appropriate unit; (3) by these and other specified acts has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by the Act. Thereafter the Respondent filed its answer, in which it denied having engaged in the alleged unfair labor practices and set forth certain affirmative allegations. Pursuant to notice, a hearing was held in Greggton, Texas, on October 3, 4, and 5,1951, before the undersigned duly designated Trial Examiner. All parties were represented at and participated in the hearing where full opportunity was afforded them to be heard, to examine and cross-examine witnesses, and to intro- duce evidence bearing upon the issues. At the conclusion of the hearing opportunity was given for oral argument. Both counsel at that time stated their positions as to the appropriate unit. Following the hearing a brief has been received from the Respondent. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT W. E. Stewart and Lela Stewart, d/b/a Stewart Oil Company, are engaged in the business of producing and selling oil and gas produced from leases in the vicinity of Longview, Texas, herein referred to as the East Texas field. STEWART OIL COMPANY 13 During the year preceding the hearing production from the Respondent's East Texas field was more than 100,000 barrels of crude oil, valued at more than $250,000. All of such oil is sold by the Respondent to Phillips Petroleum Company, Arkansas Fuel Oil Company, Humble Oil & Refining Company, Sun Oil Company, and others , and is transported from the wells in East Texas to refineries located in and outside the State of Texas. The Sun Oil Company transports the oil purchased through lines of the Sun Pipe Line Company to a point near Longview, Texas, where Sun Pipe Line Company connects with Mid- Valley Pipe Line Company , and at this point Sun Pipe Line Company delivers this oil to Mid-Valley and the latter transports the oil across State lines until it ultimately reaches the Sun Oil Company refinery located at Toledo, Ohio. The Arkansas Pipe Line Corporation gathers production from the Respondent's East Texas field in an amount of about 5,000 barrels each month, and this oil is commingled with other oil purchased in this area and sold to other companies. A large quantity of such oil is delivered to Cities Service Pipe Line Company and in turn is delivered to Cities Service Refining Corporation at Lake Charles, Louisiana. The pipeline transporting crude oil out of the East Texas field transports crude oil for the Texas Company, Tidewater Associated Oil Company, Cities Service Refining Corporation, and others. The Respondent concedes and the Trial Examiner finds that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Oil Workers International Union, CIO, is a labor organization admitting to membership employees of the Respondent at its East Texas field. III. THE UNFAIR LABOR PRACTICES A. The discrvm.inatory discharges of Emmet R. Broadus and G. T. McClure Emmet R Broadus and G. T. McClure were pumpers employed by the Respond- ent until April 6, 1951 . Broadus signed a union membership application and authorization card on February 6, 1951; McClure similarly applied on February 26. During the latter part of March, Broadus told John Hill, operator and super- visor, that he and others had joined the Union. It is undisputed that Broadus "told him the names of everybody in the union ." The Trial Examiner finds that by April 1 , 1951, the Respondent was aware of the union membership of both Broadus and McClure. As described more fully in section B, below, on March 23 the Union notified the Respondent , by letter , of its claim to represent a majority of the employees in an appropriate unit and its desire to negotiate a contract . In the same section it is also found that the Union was on March 23 the exclusive bargaining representative of all employees in an appropriate unit, which included Broadus and McClure. Despite the Respondent 's knowledge of the union claim and of the two em- ployees' membership in the organization , during the first week in April Stewart and Field Superintendent J. C. Dorris approached Broadus and McClure and insisted that each sign an individual contract covering wages and certain work- ing conditions. Upon advice of the Union each pumper refused to sign and both were summarily discharged on April 6. It is the Respondent's claim that it was privileged to demand individual contracts from its pumpers in order that it might meet certain conditions under the Wage and Hour law. The contention is without merit. No credible evidence was offered to establish that imposition of the contracts was pursuant 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to any order of any Government agency. On the contrary, the Board recently said in Reeder Motor Company,' "Once a union has been designated as a statu- tory representative and an employer is put on notice of the union's majority status, the Act not only imposes upon him the affirmative duty to bargain col- lectively upon request, but requires him to abstain from subverting the desig- nated representative by direct dealings with individual employees." By requiring that Broadus and McClure sign individual contracts in deroga- tion of the Act, and discharging them because they declined to sign, the Re- spondent clearly interfered with the exercise of rights specifically guaranteed by the Act and discouraged membership in the Union. B. The refusal to bargain 1. The appropriate unit and majority representation It is General Counsel's contention that a unit of the Respondent's employees appropriate for the purposes of collective bargaining includes all pumpers, switchers, roustabouts, truck drivers, mechanics, and pulling-machine operators employed at its East Texas field and excluding drillers, roughnecks, office and clerical employees, gang pushers, and supervisory employees. It is the Re- spondent's contention that the appropriate unit should also include the pumpers employed at each of its other fields. It appears that inclusion of pulling-machine operators as a classification, by General Counsel in the complaint, was inadvertent. The evidence establishes, and both General Counsel and counsel for the Respondent agreed at the hear- ing, that such operators are supervisors, having the power effectively to disci- pline and recommend discharge, and that they should be excluded from the unit. It is therefore concluded and found that such regular operators should be excluded. As to pumpers employed at fields other than the East Texas field, the Re- spondent urges their inclusion in the unit for the following reasons, in sub- stance that: (1) All receive their instructions and pay checks from the home office in Tyler, Texas; (2) a single field superintendent has supervision over all fields; and (3) occasionally men and materials are sent from the East Texas field to the field at Oil City, Louisiana, to assist operations there. General Counsel opposes this claim on these grounds, in substance, that: (1) The Louisiana, South Texas, and West Texas fields are removed from the East Texas field by considerable distances : 80 to 85, 450, and 275 miles respectively ; (2) the Union claimed only to represent the pumpers at the East Texas field at the time of requesting recognition; and (3) the pumpers at the distant fields, including that in Oil City, are supervisory in that they have the authority to hire and/or effectively to recommend hiring and firing. The Trial Examiner finds that the preponderance of evidence supports the contention of General Counsel on this issue. It is therefore found that the appropriate unit includes only the pumpers employed at the East Texas field? In summary, it is concluded and found that the appropriate unit consists of all pumpers, switchers, roustabouts, truck drivers, and mechanics of the Respond- ent employed at its East Texas field exclusive of drillers, roughnecks, office and clerical employees, gang pushers, and supervisory employees. The Respondent and General Counsel are in agreement as to 10 individuals s 196 NLRB 831. 2 Pumpers only are regularly employed at these distant fields. s Allen, Bell, Emmet R. Broadus, Buddy Lindsey, Lofton, Lafoon, McClure, Thurman Morris, L. M. Sanders, and Elmer R. Broadus. STEWART OIL COMPANY 15 who would be included in the above unit as of March 23, 1951. There is dispute as to 3 individuals : A. D. Adams, J. M. Hillin, and Frank Morris. As to A. D. Adams. The Respondent would exclude him on the ground that on March 23, the critical date, Adams was temporarily substituting for a regular operator who was ill. Credible evidence, however, establishes that this was not his regular job, that it was of only brief duration, and that he only relieved this operator on this one occasion. The Trial Examiner finds that Adams should be included in the appropriate unit. As to J. M. Hillin. General Counsel would exclude him on the ground that he was hired as a rotary driller, a classification excluded. The Respondent would include him, since drilling is not a regular operation at this field. Although the evidence does not establish accurately how much of Hillin's employment since 1948 has actually been devoted to drilling, it is clear that no drilling has been done since February 1951, and that since then most of his time has been spent as a roustabout or repairing machinery. The Trial Examiner finds that Hillin should be included in the appropriate unit. As to Frank Morris. The position of the parties is the same as in the case of Hillin, above. It appears that Morris was hired as a roughneck on the drilling crew 3 years ago. He worked as a roustabout, however, when not on the drilling crew and, as noted above, there has been no drilling since February 1951. The Trial Examiner finds that Morris should be included in the appropriate unit. Adding the names of the 3 above-mentioned individuals to the 10 agreed upon by the parties results in a total of 13 employees in the appropriate unit on March 23, 1951. Union-authorization cards for 7 employees in the appropriate unit, all signed before March 23, 1951, were submitted in evidence, unchallenged, by General Counsel. The Trial Examiner therefore concludes and finds that on March 23, 1951, a majority of the employees of the Respondent, in the appropriate unit, had designated the Union as their bargaining agent, and that on that date and at all times since then the Union has been the representative for the purposes of collective bargaining of all employees in the said unit. 2. The request to bargain On March 23, 1951, E. Carl Mattern, director of District No. 3 of the Union, addressed and mailed to Carl Dorris, field superintendent of the Respondent, a letter claiming majority representation of employees in a unit substantially as described above, requesting recognition of the Union and asking that a date be set for negotiations looking toward a collective bargaining agreement The Respondent failed to reply to this letter. Although Dorris' testimony is con- fused and contradictory in part, he admitted having received a letter of this nature from the Union, claiming majority representation, and that he turned two letters over to Stewart. One of the two, registered, he received from the Regional Office of the Board, and was dated April 4, 1951, informing the Re- spondent of a petition filed by the Union. No other letter addressed to Dorris, except the union letter of March 23, was introduced into evidence. The inference therefore is reasonable, from Dorris' own testimony, and it is found that he received and turned over to Stewart the letter of March 23.4 On April 9, having received no reply to his letter, Mattern telephoned to Stewart and asked why his communication had not been answered Stewart denied having seen or heard of it. Mattern pointed out that because he had * The Trial Examiner cannot accept, as trustworthy, Stewart's claim that he did not receive this letter. As the record amply shows, Stewart's stated recollection as a witness in a number of matters was refuted by documents, one being a letter sent by himself to the Regional Office. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD received no reply within 10 days the Union had filed a petition for certification with the Board, but that he nevertheless would prefer to sit down and negotiate a contract and the discharges of Broadus and McClure . Finally Mattern asked Stewart directly if he would recognize the Union as the bargaining agent for the employees. Stewart said he could see no reason to. Nor would Stewart agree to meet with him. Following this telephone conversation Mattern wrote to Stewart, setting forth confirmation of various points raised during the conversation. Stewart has never replied to this letter. 3. Conclusions as to the refusal to bargain The Trial Examiner concludes and finds that the preponderance of credible evidence supports the allegations of the complaint that the Respondent has refused and is refusing to bargain collectively with the Union. This finding rests upon the following conduct of the Respondent : ( 1) Its failure to reply to or even acknowledge receipt of the Union's letter of March 23, 1951 ; ( 2) its insistence that pumpers Broadus and McClure sign individual contracts covering working conditions after having been placed on notice that the Union claimed to represent a majority of the employees ; (3) its discharge of Broadus and McClure on April 6 because they would not sign the individual contracts ; and (4) Stewart's failure to agree, on April 9, to meet with the Union for negotiation of a contract or reinstatement of Broadus and McClure.` C. The discharges of five employees on April 16 On April 16 the following employees had been regularly working on the Re- i pondent's two pulling units then at its East Texas field : A. D. Adams, Buddy Lindsey, Charles Hodges, E. A. Allen, and Elmer Roy Broadus . Credible evidence establishes that the Respondent knew, before April 16, that each of these em- ployees had joined the Union. On that day all were laid off and were told by Superintendent Dorris that the pulling machines would be "stacked" for 30 days, during which period he intended to contract the work to outsiders . It is un- disputed that when one of a group of three of these five asked if this meant that he had better look for another job, Dorris said, "I reckon that's right." It is also undisputed that when given his check on April 16, employee Hodges was told by Dorris to "go find another job." Despite Dorris' statement to these men that the machines would not be in operation for a month , credible evidence establishes that one or both were again operating within a few days after April 16. New men were hired to replace the above-named employees. It is the Respondent's contention that : ( 1) "Stacking" the machines and the resultant layoff was , in effect, an economic necessity ; and (2 ) the five individuals were not reemployed because they failed to report for work each morning in accordance with custom. Credible evidence deprives both contentions of merit. That a factor other than economy determined the layoff is implicit in the un- disputed testimony of Adams to the effect that in March, at a time when, as found above, management was aware of union activity, Dorris told him "it looked like he would have to stack the machines because it [the Company] was going to be forced up on wages and he was going to run things his way or else." Furthermore , the machines were not shut down for the 30-day period as an- nounced by Dorris. Finally, it is undisputed that only 2 weeks before the lay- 6 The Trial Examiner is also convinced , and finds, that by its discriminatory discharges of five other employees on April 16 and described in the next section, the Respondent continued to refuse to bargain with the Union STEWART OIL COMPANY 17 off, the Respondent purchased a third pulling machine, which it reasonably would not have done had it planned to contract out its pulling operations. As to the failure of the five to report each morning for work after April 16, there plainly was no duty on the part of these employees to return before the end of the 30-day period, particularly since Dorris had advised at least four of them that they had better seek other employment. Also militating against the Re- spondent's contention is the fact that only 2 days after the layoff Dorris told employee Frank Morris, the one employee of the group who was not a union member, that the rigs were to begin operation and he was promptly put back to work. Although in May both Adams and Broadus formally requested reinstate- ment, by letters to Dorris, neither was employed, although the Respondent's rec- ords establish that new employees were hired after that date. Finally, the record makes plain that on April 26 the Regional Office formally notified the Respondent that the Union had filed charges alleging discriminatory discharge of each of the five employees. Under these circumstances the Respondent may not main- tain its contention that had the employees reported for work they would have been reemployed. The preponderance of credible evidence leads to the reasonable conclusion, and the Tiial Examiner finds, that the Respondent created, on April 16, a pretext to rid itself of most of the union members, and that the five individuals above named were, in effect, discharged discriminatorily on that date because of their union membership, thereby interfering with, restraining, and coercing employees in the exercise of rights guaranteed by the Act. Of the five employees, Buddy Lindsey was rehired on May 21 and Allen on May 27. Lindsey worked about 2 weeks and then voluntarily quit. Allen was working for the Respondent at the time of the hearing. The preponderance of evidence fails to support General Counsel's contentions that: (1) Upon re- employment Lindsey was discriminatorily denied an equitable number of work- ing hours; and (2) Allen was discriminatorily denied return to his original job as truck driver. Allen's own testimony makes plain that long before his dis- charge and upon his own request he had been taken off the truck because of a back injury. At the conclusion of the hearing counsel for the Respondent, on the record, formally offered full reinstatement to each of the five employees. General Counsel accepted the offer and agreed that any back pay due should be tolled as of October 5, 1951. D. Other interference, restraint, and coercion Early in February Assistant Superintendent A. D. Sanders e asked Lindsey if he had a union card. When the employee replied in the affirmative Sanders advised him to tear it up because Dorris had said if he caught anyone with a union card he would be fired. Sanders, during the same month, also reported Dorris' threat to employee Allen, and at another unspecified time to employee Thurman Morris.' Sometime after joining the Union on February 14 Thurman Morris was asked by Dorris if he had joined, and when the employee admitted 6 Although there is much confused testimony in the record concerning Sanders' status, it is clear that since 1943 he has been, and generally was known as, assistant to Dorris, with full authority of the superintendent whenever the latter was absent from the East Texas field. Sanders as solicited to join the Union, signed an application card, but turned it over to Dorris 7 Although Sanders denied making these statements, the Trial Examiner accepts the testimony of the three employees as the more credible, particularly in view of Sanders' own testimony that be turned his card over to the superintendent. 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the fact,, he was advised to tear it up. Later Dorris asked him if he had torn it up and told him he "would gain by tearing it up."' The Trial Examiner concludes and finds that by the above-quoted remarks of Sanders and Dorris the Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed by 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 its operations described in section I, above, have a close, inti- mate, 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 Having found that the Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take cer- tain affirmative action which will effectuate the policies of the Act. It has been found that the Respondent has refused to bargain collectively with the Union. It will therefore be recommended that the Respondent cease and desist therefrom, and also that upon request it bargain collectively with the Union with respect to wages, hours, and other terms and conditions of employ- ment, and if understanding is reached embody such understanding in a signed agreement. It has been found that the Respondent has discriminated in regard to the hire and tenure of employment of certain employees. Since it has also been found that on October 5, 1951, the Respondent offered full reinstatement to five employees (E. A. Allen, A. D. Adams, Elmer Roy Broadus, Buddy Lindsey, and Charles Hodges), it will not be recommended that the Respondent make further offer as to them. Although since the close of the hearing the Trial Examiner has received from the Respondent copies of letters addressed to Emmet R. Broadus and Grover T. McClure, offering them positions other than those they occupied at the time of their discriminatory discharge, it is not established that these offers constitute the required offers of full reinstatement to their former or sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges. It will therefore be recommended that such offer of full reinstatement be made as to these two employees. It will also be recommended that all seven employees be made whole for any loss of pay they may have suf- fered by reason of the discrimination against them, by payment to each of them of a sum of money equal to that which he normally would have earned as wages from the date of the discriminatory discharge to the date of the offer of rein- statement, less his net earnings" during such period. The back pay shall be computed in the manner established by the Board, and the Respondent shall make available to the Board payroll and other records to facilitate the checking of the amount due.'o The character and scope of the unfair labor practices engaged in by the Re- spondent indicate an intent to defeat self-organization of its employees. It will therefore be recommended that the Respondent cease and desist from in any e Dorris denied asking Morris if he had joined the Union, but admitted that the em- ployee told him he had. In view of the superintendent's generally confused and contradic- tory testimony as to the letters received and the discriminatory discharges, the Trial Examiner does not accept his denial as credible. "Crossett Lumber Company, 8 NLRB 440 10 F W Woolworth Companr/, 90 NLRB 289. STEWART OIL COMPANY 19 manner interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by the Act. Upon the basis of the above findings of fact and upon the entire record In the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Oil Workers International Union, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Em- met R. Broadus, G. T. McClure, E. A. Allen, A. D. Adams, Elmer Roy Broadus, Buddy Lindsey, and Charles Hodges, thereby discouraging membership in the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. All pumpers, switchers, roustabouts, truck drivers, and mechanics of the Respondent employed at its East Texas field, exclusive of drillers, roughnecks, office and clerical employees, gang pushers, and supervisory employees, con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. Oil Workers International Union, CIO, was on March 23, 1951, and at all times since then has been, the exclusive bargaining representative within the meaning of Section 9 (a) of the Act of all employees in the aforesaid unit for the purposes of collective bargaining. 5. By refusing to bargain collectively with Oil Workers International Union, CIO, as the exclusive bargaining representative of the employees in the appro- priate unit, the Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8 (a) (5) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] Appendix A NOTICE To ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT deal individually with our employees in derogation of their bargaining representative with respect to any matter properly the subject of collective bargaining. WE WILL NOT discourage membership in OIL WORKERS INTERNATIONAL UNION, CIO, or in any other labor organization of our employees, by discharging any of our employees or in any other manner discriminating against them in regard to their hire and tenure of employment or any term or condition of employment. WE WILL NOT interrogate our employees concerning their membership in, or adherence to, OIL WORKERS INTERNATIONAL UNION, CIO, or any other labor organization, or threaten reprisals for such membership or adherence. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor 227260-53-vol. 100-a 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organizations , to join or assist OIL WORKERS INTERNATIONAL UNION, CIO, or any other labor organization , to bargain collectively through representa- tives of their own choosing , and to engage in other mutual aid or protection, and 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 Act. WE WILL bargain collectively upon request with OIL WORKERS INTERNA- TIONAL UNION , CIO, as the exclusive representative of all employees in the following bargaining unit, with respect to rates of pay , hours of employment, and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement : All pumpers, switchers, roustabouts , truck drivers , and mechanics em- ployed at our East Texas field , excluding drillers , roughnecks, office and clerical employees , gang pushers and supervisory employees. WE WILL offer to Emmet R. Broadus and G. T. McClure immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and, privileges ; and make them and E. A. Allen, A. D. Adams, Elmer Roy 13roadus , Buddy Lindsey, and Charles Hodges, whole for any loss of pay suffered as a result of the dis- crimination 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 in regard to the hire or tenure of employment or any term or condition of employ- ment against any employee because of membership in or activity on behalf of any such labor organization. W. E. STEWART AND LELA STEWART, D/B/A STEWART OIL COMPANY, 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. SHARPLES CHEMICALS, INC. and UNITED GAS , COKE AND CHEMICAL WORKERS OF AMERICA, CIO. Case No. 7-CA-509. July 8, 195 Decision and Order Upon a charge duly filed by United Gas, Coke and Chemical Work- ers of America, CIO, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for the Seventh Region (Detroit, Michigan), issued a complaint dated July 9, 1951, against Sharples Chemicals, Inc., herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 ( a) (1) and (2) and Section 2 (6) and (7) of the National Labor Relations Act (61 Stat. 136), herein called the Act. Copies of the complaint and charge were duly served on all the parties. 100 NLRB No. 12.