Traders Oil Co. of Houston

746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that the appropriate unit would be one which includes all of the above-described employees in the Central Service Area.4 Although it appears that the Petitioner, in the alternative, would represent any unit which the Board finds to be appropriate, its showing of interest is not sufficient to warrant holding an election among the employees in the Central Service Area. Accordingly, we shall dismiss the petition. [The Board dismissed the petition.] 4 See Montana-Dakota Utilities Co., 115 NLRB 1396 ; The Ohio Fuel Gas Company, 115 NLRB 1132 ; Pioneer Natural Gas Company, '111 NLRB 502. Traders -Oil Company of Houston and Local 4-227, Oil, Chemical and Atomic Workers International Union, AFL-CIO and Em- ployee Committee,, Party to the Contract. Case No. 39-CA-564. December 13,1957 DECISION AND ORDER On November 15, 1956, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (1) and 8 (a) (5) of the Act, 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 and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings of the Trial Examiner are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and support- ing briefs, and the entire record in this case, and adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modifications, additions, and exceptions. As set forth in the Intermediate Report, about the middle of March 1956, an employee of the Respondent approached L. Tom Fox, secre- tary and treasurer of the Charging Union, concerning union mem- bership and the negotiation of a contract. Thereafter, at the union meeting of April 6, 13 out of 16 employees in the production and maintenance unit claimed by the Union signed cards and authorized Fox to bargain with the Respondent.' i Another card, signed April 10, gave the Union a majority of 14 out of 16 employees in the unit. 119 NLRB No. 109. TRADERS OIL COMPANY OF HOUSTON 747 On this same day, April 6, after the union meeting, employee Pearson told his father, the Respondent's field superintendent, Pearson "we all had joined the Union." In reply, Superintendent Pearson stated: "Well, looks like you all bumped yourselves out of a job." This testimony was not contradicted. As Superintendent Pearson's statement contained a threat of reprisal against members of the Union employed by the Respondent, we find that it is violative of Section 8 (a) (1) of the Act .2 On or about April 10, 1956, while seeking shelter in an automobile from the rain, Superintendent Pearson and employee Hodges had a conversation in which the Union was discussed. During this con- versation, according to Hodges, Pearson asked him "What do you think the boss is going to say about the boys going Communist on him out there." Pearson denied that he questioned Hodges about "going Communist." As hereinafter set forth, the Trial Examiner indicated that he would credit the employees over Pearson and, accordingly, we too credit employee Hodges. However, accepting Hodges' version of the conversation, we find nothing therein viola- tive of the Act. The characterization of union membership as "going Communist," although a term of opprobrium, is not a threat of reprisal or a promise of benefit and is therefore privileged under Section 8 (c) of the Act. Accordingly, we find that these remarks do not constitute a violation of 8 (a) (1) of the Act.3 On April 13, by telephone, Fox told Respondent's vice president, Lambdin, that he represented a majority of the Respondent's employ- ees in a production and maintenance unit which we, like the Trial Examiner, find constitutes an appropriate unit within the meaning of Section 9 (b) of the Act. Fox at this time requested the Respond- ent to bargain and offered to prove its majority by a third party. Lambdin replied that he would have to consult his lawyer and would contact Fox later. On April 16, 8 of the 14 employees were laid off but the Union, because it still represented 6 of the remaining 8 employees, retained its majority.' On this same day, April 16, Superintendent Pearson engaged in a conversation with employee Borders and five others who had been laid off that day. According to Borders, he protested the layoffs to Superintendent Pearson who replied : "Well, who started all this mess anyway." When Borders admitted that he had, 2 In view of the father-son relationship, Member Rodgers does not believe that the state- ments made by Superintendent Pearson are properly attributable to the Respondent as a threat of reprisal. s See Blue Bell, Inc., 107 NLRB 514, pp. 526-527 and cases cited therein. Member Mur- dock would find that Superintendent Pearson's remarks interfered with Hodges' union activ- ities and constituted interference within the meaning of Section 8 (a) (1) of the Act. There is no contention that such layoffs were discriminatory under the Act. Although they were the subject of unfair labor practice charges, such 8 (a) (3) allegations were withdrawn and were not alleged in the second amended charge nor in the complaint herein. 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pearson stated that "he would see that I never worked for Traders Oil Company as long as he was superintendent out there." Pearson denied the statements attributed to him. Although the Trial Ex- an-liner did not specifically resolve this disputed question of credi- bility, he indicated that he would credit Borders when he stated that "the recollection of the employees in each instance was more ac- curate than that of Pearson." In these circumstances, we credit Borders' testimony. Accordingly, we find that Superintendent Pear- son threatened Borders with reprisals because he had,engaged in union activity at the Respondent's plant and that by such threat the Respondent violated Section 8 (a) (1) of the Act.' Thereafter, the parties met on April 25. Fox again requested bar- gaining with the Respondent and working out a contract. Fox told Respondent's vice president, Lambdin, it was not feasible at that time to hand over a contract, apparently because Lambdin had not agreed to bargains Whereupon Lambdin stated he did not think that the Union represented a majority of its employees. Fox then offered to prove its majority by submission of the cards to a third party, or if this were not acceptable, he suggested in the alternative that the parties consent to a Board election.' It was then decided to let the Respondent get in touch with the Union about a consent election. A consent-election agreement was signed on May 7, 1956, and the election was scheduled for noon, May 15. On the morning of May 14, Respondent's vice president, Lambdin, spoke to the employees' at a regular safety meeting. He stated that he still had not learned what the employees wanted and what their "gripes" and grievances were. He expressed a willingness to straighten things out and to "put it in writing." That evening, the employees met at the home of a supervisor where they drew up a penciled form of contract which they all signed. The next morning, May 15, the day of the election, the contract was presented to Lambdin who had it typed on the Respondent's letterhead. This contract between the Respondent and its employees was executed before the election by Lambdin for the Respondent and by 2 individual employees for themselves and after the election by the remaining 6 employees who 5 Seyfert Foods Co., 109 NLRB 800, 815. 8 The credited testimony of Fox with respect to the Respondent's request for a contract is as follows : "That it just wasn't feasible to hand over a contract to someone who wanted to look at the horse before he bought it ; in other words, wanted to use him for a year before he bought it. In other words, that wouldn' t be collective bargaining. If the Com- pany had said , 'We will bargain with you and we are ready to look at the contract,' cer- tainly I would have supplied you with a contract as a basis to bargain from." 7 Fox's testimony is as follows : "Also I believe I asked for a consent election if they were not willing to accept that, and I believe I indicated that in my sincerity to do the thing that was right, I would be in the position , in the same position of standing on the roof and letting Mr. Lambdin push me off. In other words, on the presentation of the strength of the authorization cards, which were 100 percent of the employees at the time of April 6, and aside from those who didn't belong to the union , still were 100 percent of the employees still employed on May 1." ( Page 45 of the Transcript.) TRADERS OIL COMPANY OF HOUSTON 749 individually signed for themselves, Each employee received a copy of the contract, which had no recognition clause although it contained provisions for wages, sick leave, vacations, holidays, and other terms and conditions of employment. The Union first learned of the execu- tion of the contract after it had lost the election 9 to 0.$ The Board is unanimously agreed that Lambdin's speech the day before the election and his execution of the contract with the individual em- ployees the day of the election, taken together, constitute a promise and a grant. of economic benefits in return for the employees' renun- ciation of the Union at the polls. Accordingly, we find that the Respondent thereby violated Section 8 (a) (1) of the Act .9 The issue in this case is whether under the doctrine of Joy Silk Mills and related cases 10 the Respondent unlawfully refused to bargain with the Union by questioning its majority status in bad faith. That the Respondent refused to bargain with the Union is evident from the record. The Union unequivocally requested bargaining on April 13 and 25. An employer should respond to such request in a similarly clear vein. But, on the contrary, the Respondent did not unequivo- cally express its position but rather on April 25 merely asked for a contract, and then questioned the Union's majority status. On both the occasions of April 13 and 25 there was no recognition of the Union or bargaining with it. The Respondent merely engaged in delaying tactics. In our opinion and contrary to our dissenting colleagues, such conduct constitutes a refusal to bargain in fact until the Union proved its majority status and we so find. However, there remains for consideration the question of whether the Respondent acted in good or bad faith, a question which must be determined by all the facts and circumstances of a given case, by the entire pattern of conduct, and not by isolated incidents.ll The facts detailed above show that after the Respondent had knowledge of union activity among its employees, it engaged in at least two instances of misconduct constituting threats of reprisal for engaging in union activity in violation of Section 8 (a) (1) of the Act. In addition, after the two requests for bargaining by the Union on April 13 and 25, respectively, and on the day before the election, the Respondent promised economic benefits for a renunciation of the Union in the S Although the Union filed objections to the election, which were sustained by the Regional Director, it requested permission to withdraw its representation petition and on September 14„ the Board , pursuant to such request, dismissed the petition because a com- plaint had been issued alleging violation of Section 8 (a) (5) of the Act. ° See Old King Cole, Inc., 117 NLRB 297, 306-307; Adhesive Products Corporation, 117 NLRB 265. to Joy Silk Mills, Inc., 85 NLRB 1263, 185 F. 2d 732 (C. A., D. C.), cert. denied 341 U. S. 914 ; Adhesive Products Corporation, 117 NLRB 265 , 284; Harrisburg Building Units Co., Inc., 116 NLRB 334; Taylor-O'Brien Corporation, 112 NLRB 1; Wheeling Pipe Line, Inc., 11:1 NLRB 244, 258, enfd. 229 F. 2d 391 (C. A. 8) ; Pyne Molding Corporation, 110 NLRB 1700, 1707-8, enfd. 226 F. 2d 118 (C. A. 2) ; Southeastern Rubber Mfg. Co. Inc., 106 NLRB 989,.992, enfd. 213 F. 2d 11 (C. A. 5). 11 A. L. Gilbert Company, 110 NLRB 2067. 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election-promises which the Respondent fulfilled by executing a contract with individual employees. As indicated above, such con- duct was unanimously found to be violative of the Act. At the polls that day, the Respondent achieved the desired result from such con- duct. The Union did not receive a single vote out of the nine cast. It seems clear to us, from the nature and extent of the Respondent's unfair labor practices, all telescoped into the short period between the obtaining of a majority by the Union on April 6 and the election on May 15, that the Respondent did not act in good faith. For example, Superintendent Pearson's reply to his son when informed that the men had chosen a union indicated acceptance of the fact and a determination to destroy a union majority by discharges. Other evidence does not overcome the inference that Respondent did not have a good-faith doubt of union majority. The Respondent's request for a proposed contract in the absence of an agreement to recognize the Union was not an acceptance of the bargaining request. Under the circumstances of this case we find that it was a request that the Union disclose its bargaining demands while at the same time reserv- ing to the Respondent the right to question the Union's representative status after such disclosure had been made. Such tactics do not indi- cate an intention to bargain in good faith. No recognition or bargain- ing resulted. Moreover, the Respondent's action in consenting to an election, while normally an indicia of good faith, as such, in this case was rebutted by the other unlawful acts of the Respondent com- mitted in violation of the Act.13 In these circumstances, we are con- vinced that the Respondent was not motivated by a good-faith doubt of the Union's majority but that the real reason the Respondent delayed recognition of, and bargaining with, the Union on April 13 and questioned the Union's majority on April 25 was to gain time within which to undermine the Union and dissipate its majority. In the light of all the relevant facts and upon the entire record, we there- fore conclude that, under the Joy Silk Mills doctrine, the Respondent refused to bargain with the Union in good faith and thereby violated Section 8 (a) (5) of the Act. As the first request for bargaining was made and refused on April 13, we find that the refusal to bargain occurred on April 13, and that, from that time on, the Respondent unlawfully failed and refused to bargain collectively with the Union within the meaning of Section 8 (a) (5) of the Act.13 ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor 11 Taylor- O'Brien Corporation, supra. 13 We adopt the Trial Examiner' s finding that the Respondent did not violate Section 8 (a) (2) of the Act and his recommendation that the allegations of the complaint in this respect be dismissed . because we find that the employees acted as principals in connection with the contract rather than as a labor organization. TRADERS OIL COMPANY OF HOUSTON 751 Relations Board hereby orders that the Respondent, Traders Oil Company of Houston, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Threatening its employees with reprisals to discourage con- certed activity or union membership or activities in violation of Sec- tion 8 (a) (1) of the Act. (b) Promising and granting its employees benefits to discourage concerted activity or union membership or activities in violation of Section 8 (a) (1) of the Act. (c) Refusing to bargain collectively with Local 4-227, Oil, Chemi- cal and Atomic Workers International Union, AFL-CIO, as the ex- clusive representative of all its employees in the appropriate unit set forth in the Intermediate Report with respect to rates of pay, wages, hours of employment, or other conditions of employment. (d) In any manner interfering with, restraining, or coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act. (a) Giving effect to the contract of employment with individual employees or any modification, continuation, extension, or renewal thereof or entering into any similar form of contract with its em- ployees for any period subsequent to the date of this Order to fore- stall collective bargaining or deter self-organization. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request bargain collectively with Local 4-227, Oil, Chem- ical and Atomic Workers International Union, AFL-CIO, as the exclusive representative of all employees in the appropriate unit, and embody any understanding reached in a signed agreement. (b) Give separate written notice to each ,of its employees who signed the individual contract of employment or any modification, continuation, extension, or renewal thereof, or any similar form of contract for any period subsequent to the date of this Order, that such contract will not in any manner be enforced or attempted to be enforced, that the employee is not required or expected by virtue of such contract to deal with Respondent individually in respect to rates of pay, wages, hours of employment or other conditions of employ- ment, and that such discontinuance of the contract is without preju- dice to the assertion of any legal rights the employee may have acquired under such contract or to any defenses thereto by the Respondent. 14 (c) Post at its Houston, Texas, office and at all field offices, includ- ing the one at Humble, Texas, copies of the notice attached hereto "J. 1. Case Company v. N. L. R. B., 321 U. S. 332 ; National Licorice Company V. V. L. R. B., 309 U. S. 350. 7 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD marked "Appendix A." Copies of said notice to be furnished by the Regional Director for the Sixteenth Region, after being duly signed by the Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure the said notices are not altered, defaced, or covered by any other material. (d) 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. IT IS FURTIIER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent violated Section 8 (a) (2) of the Act. CHAIRMAN LEEDOM and MEMBER RODGERS, dissenting in part: While we agree with the majority as to the 8 (a) (1) violations found above, with the exceptions noted, we do not agree with the find- ing of an 8 (a) (5) violation. That issue in this case turns upon whether the Respondent unlawfully refused to bargain with the Union. The record shows that on April 6 the Union represented a majority of the employees in the production and maintenance unit it sought to represent. On April 13 Fox, union official, by telephone requested Company Vice President Lambdin to bargain. Lambdin replied that he would first like to consult legal counsel and promised to contact Fox later. Accordingly, the parties met on April 25. When Fox stated that he would like to sit down and bargain, and work out a contract, the Respondent's representatives asked Fox whether he had any proposals to make and requested that he supply them with a proposed contract. Fox refused to do this, maintaining that "it just wasn't feasible to hand over a contract to someone who wanted to look at the horse before he bought it" and that it "wouldn't be collective bargaining." Lamb- din then indicated that he, himself, did not think that the Union rep- resented a majority of the employees, which statement Fox in his testimony characterized as Lambdin's "personal opinion." In reply Fox volunteered to prove the Union's majority, but not through the submission of its application cards to the Respondent. Instead, he once again offered to submit the cards to a disinterested third party whose determination would be binding. The union representative suggested in the alternative, if this were not acceptable, that the par- ties consent to a Board election. It was then decided to let the Re- spondent "talk it over and later get in touch [with the Union] about a consent election." A consent-election agreement was signed shortly TRADERS OIL COMPANY OF HOUSTON 753 thereafter on May 7, 1956, and the election was conducted on May 15: The Union lost. In view of the above facts, while we agree that the Union requested the Respondent to bargain on April 13 and 25, we do not believe that the Respondent unlawfully refused to bargain for the following reasons: First, the record reveals that bargaining was not conditioned upon the Union's proving to the Respondent's satisfaction that it represented a majority of the employees. On the contrary, the Respondent offered to bargain with the Union without the imposition of any conditions. Thus, upon the Union's initial request, on April 13, the Respondent in- dicated it would consult counsel and communicate with the Union thereafter. This it did, and, at the meeting which resulted, on April 25, the Respondent, in response to the Union's offer to bargain and to work out a contract, asked for the Union's proposals, thereby clearly indicating its willingness to bargain. The Union, however, declined to submit any proposals whatever, although it could reasonably have been expected to do so in view of the fact that, as early as the unioif meeting of April 6 (supra), it had discussed with the employees the problems that they had with the Respondent. Hence, it is clear that the failure of the parties to proceed to bargaining on April 25, was not caused by any refusal on the part of the Respondent, but by the reluctance or unwillingness of the Union to do so.'5 The fact that Lambdin indicated to Fox that he did not think that the Union rep- resented a majority does not of itself establish that the Respondent was thereby insisting upon proof of such status as a condition of bargain- ing. Lambdin's statement by its terms did not condition bargaining upon proof of majority, nor can such an intent be reasonably inferred from it. This is particularly true in view of the fact that Lambdin's statement was his personal opinion and followed the Union's own re- fusal to submit proposals for bargaining and of the further fact that it was the Union and not the Respondent that first suggested a consent election to resolve the question of the Union's majority status. Under the circumstances, were we to find that the Respondent refused to bar- gain, we would have to equate a here personal expression of doubt as to a union's majority status with an actual refusal to bargain. We do not believe that there is any warrant for doing so in the Act. Ac- cordingly, since the record in this case does not establish that the Re- spondent refused in fact to bargain with the Union, Ave would find 11 The Union's unwillingness to proceed to bargaining suggests that the Union itself was uncertain at the time as to whether it had a majority. In this connection it should be noted that, following the layoff on April 16 of 8 of the 14 employees then in the unit, Fox had sullicient doubt of the Union's majority status to require, on May 1, the employees left in the unit to reexecute union application cards, in order "to bolster the request (by the Union) for a.consent election." 476321-58-vol. 119-49 754 DECISIONS OF, NATIONAL LABOR RELATIONS, BOARD that the Respondent did not. violate Section 8 (a.) (5) of the. Act and would therefore dismiss such allegation in the complaint. Second, we do not believe that the Joy Silk Mills principle 16 applies because the record does not establish that the Respondent acted in bad faith in order to gain time to undermine the Union's majority status. The Respondent met with the Union on April 25 and attempted to bargain but was rebuffed by the Union. It.could rea- sonably have been expected that the issue as to majority status would be raised on April 25, in view of the economic layoff of half the employees in the unit, which had occurred between the date the Union's majority was obtained on April 6 and the meeting. Also, as indicated above, the record does not establish that the Respondent conditioned bargaining on proof of majority, particularly as Fox, the union official, characterized Lambdin's questioning of the majority status as a "personal opinion." That such doubt was justifiable is borne out by the fact that the Union itself required the employees in the unit again to execute cards on May 1 to bolster its request for a consent election, which the Union on its own had voluntarily proposed. . Further, the fact that on May 1, the Union retained its majority clearly shows that the Respondent's prior unfair labor practices had no effect on the Union's majority status. Moreover, the record reveals that the Union's majority of May 1 was dissipated by defections be- tween May 1 and 7, a period during which no unfair labor practices occurred.17 Therefore, the only reasonable conclusion is that such defections from the Union were not attributable to the Respondent. There thus remains only the speech of May 14 and the execution of the contract with the individual employees on May 15, which together have been found to be an unfair labor practice. We do not believe that this violation of 8 (a) (1), occurring as it did subsequent to the alleged refusals of April 13 and 25, is sufficient to establish a bad-faith refusal to bargain at those times. This is particularly so, as the Union's loss of majority cannot be attributed to the Respondent's prior unfair labor practices. Moreover, the mere commission of unfair labor practices does not automatically preclude a good-faith 19 Joy Silk Mills, Inc., .supra. 17 Among the six signers on May 1 were G. C. Tullos and Childress . G. C. Tullos was stipulated to be a supervisor and Childress testified that he decided he did not want the union "somewhere along, about right after " the May 1 meeting. He attributed his de- cision to a feeling that "some of the boys were going out for a grudge against the Com- pany" rather than "just for the benefit of the Union ." Thus, only 4 of the May 1 signers remained on May 7 , less than a majority of the 9 voting on May 15. The sentiments of other signers were turning against the Union before May 15 . Employee Cunningham first considered voting against the Union between the 1st and 15th of May. R. W. Tullos also decided between May 1 and 15 that lie did not want the Union . O. J. Tullos, like Childress, supra, attributed the change in union sentiment on the part of the employees to the idea that some of the boys were joining the Union for a grudge against the Company rather than because they favored the Union . The record is silent as to M. L. Pearson, the fourth employee. All these employees had signed cards on May 1. TRADERS OIL COMPANY OF HOUSTON 755 doubt as to the Union's majority status.18 Under these.-circumstances and upon the entire record, we are of the opinion that the General Counsel has not proven by a preponderance of the evidence that the Respondent in bad faith questioned the Union's majority in order to undermine its majority and that the Respondent refused, to bargain in fact. Accordingly, we do not believe that the principle of Joy Silk Mills is here applicable, and would dismiss the 8 (a) (5) allegation of the complaint.19 Third, even assuming that the record might establish an 8 (a) (5) violation, the question remains whether under the rule set forth in Aiello Dairy Farms," the Board should make such a finding. In the Aiello case, the labor organization pursued a representation proceed- ing to an election after it became aware that the employer was engag- ing in unfair labor practices in violation of Section 8 (a) (5) of the Act, and when it could have filed unfair labor practice charges. Thereafter, having lost the election, it filed charges against the employer. The Board dismissed the 8 (a) (5) allegation, stating at p. 1368: We see no reason for permitting a labor organization after it has thus resorted to a representation election with. knowledge of unfair labor practices to revert to an 8 (a) (5) proceeding based upon the same unfair labor practices as a means of establishing its representative status. In the instant case, although the Union by filing its original charge on April 16, 1956, was aware of the unfair practices occurring prior thereto, it. did not have knowledge of Vice President Lambdin's speech of May 14 and the resulting May 15 contract with individual employees. However, it did have such knowledge when it filed objec- tions to the election 2 days later, on May 17, and the 8 (a) (5) charges on the same day. Both the objections and charges were based on the same Respondent conduct. Almost 2 months thereafter, on August 9, the complaint herein issued and on August 15, the Regional Director issued his report on the objections, to which the Respondent excepted. Subsequently, on September 14, the Board, pursuant to the Union's request to withdraw the representation petition, dismissed the petition because the complaint alleging 8 (a) (5) had been issued. Thus, the Union on May 17, aware of the actual situation, had the opportunity to choose between pursuing the representation case to a conclusion and filing unfair labor practice charges. It made no choice but instead followed both courses, seeking to secure the benefits of both pro- Is See A. L. Gilbert Company, supra, 2069 ; KTRH Broadcasting Company, 113 NLRB 125, 130; Cuffman Lumber Company, Inc., 82 NLRB 296, 299. 19 Leeds Shoe Stores, Inc., .117 NLRB 585; Sunset Lumber Products, 113 NLRB 1172 ; KTRH Broadcasting Company, supra ; A. L. Gilbert Company, supra. OD 110 NLRB 1365. 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ceedings. It was not until the complaint herein alleging an 8 (a) (5) violation was issued that the Union abandoned the representation case. In these circumstances, we believe that the Union violated the principle of the Aiello case in continuing to pursue its representation proceeding after it had knowledge of the Respondent 's unfair labor practices. For this reason it should not now be permitted to establish its representative status based on such unfair labor practices . Accord- ingly, on this additional ground we would not now find an 8 (a) (5) violation and would dismiss the 8 (a) (5) allegations of the complaint. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL bargain collectively, upon request, with Local 4-227, Oil, Chemical and Atomic Workers International Union, AFL- CIO, as the exclusive representative of all employees in the bar- gaining unit described herein, with respect to rates of pay, wages, hours of employment, and other conditions of employment and, if an understanding is reached , we will embody such under- standing in a signed agreement . The bargaining unit is : All production and maintenance employees of the Em- ployer employed at its Humble Field, Texas , lease and premises, but excluding office clerical employees , guards, and supervisors as defined in the Act. WE WILL NOT threaten our employees with reprisals to dis- courage concerted activity or union membership or activities in violation of Section 8 (a) (1) of the Act. WE WILL NOT promise and grant benefits to our employees to discourage concerted activity or union membership or activities in violation of Section 8 (a) (1) of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL NOT give effect to the contract of employment with our individual employees or any modification , continuation, exten- sion, or renewal thereof or enter into any similar form ,f con- tract with our employees for any period subsequent to the date of the Order herein to forestall collective bargaining or deter self- organization. TRADERS OIL COMPANY OF HOUSTON 757 WE WILL give separate written notice to each of our employees who signed the individual contract of employment or any modification, continuation, extension, or renewal thereof, or any similar form of contract for any period subsequent to the date of the Order herein, that such contract will not in any man- ner be enforced or attempted to be enforced, that the employee is not required or expected by virtue of such contract to deal with the Respondent individually in respect to rates of pay, wages, hours of employment, or other conditions of employment, and that such discontinuance of the contract is without prejudice to the assertion of any legal rights the employee may have acquired under such contract or to any defense thereto by the Respondent. TRADERS OIL COMPANY OF HOUSTON, 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. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This is a proceeding under Section 10 (b) of the National Labor Relations Act, as amended.' On August 9, 1956, the General Counsel of the National Labor Relations Board caused the complaint herein to be signed and issued by the Regional Director for the Sixteenth Region. An answer to the complaint was- filed on behalf of Traders Oil Company of Houston on August 21, and an answer to the complaint was filed on behalf of the Employee Committee on the same day. The complaint and the answers thereto draw the issues herein as summarized below.2 The original charge, filed by the Union on April 16, sets forth alleged violations of the Act through the discharge of some seven men and interference through interrogation of employees by the Company with the rights of its employees to engage in concerted activities for the purpose of self-organization. A first amended charge was filed by the Union on May 17, in which it was alleged that the Respond- ent had discharged the same 7 men whose names were set forth in the original charge, and that the Company had, on or about April 9th, interrogated (through responsible officials or superviors) some of its 14 employees regarding their union activities, and had on about April 12 refused to bargain in good faith with the Union as representatives of its employees; and that on and about May 15 recognized "a different labor organization" and dominated and lent support to this other union, and interrogated its employees regarding their union activity. A second amended charge, filed July 16, alleged violations of Section 8 (a) (2) and (5) of the Act: On or about April 13, 1956, and at all times thereafter, the above-named Employer by its officers, agents and employees, refused to bargain collectively with Local 4-227, a labor organization named herein, when said labor organiza- tion represented a majority of the employees of the Employer in an appropriate unit; and on or about May 1, 1956, insisted that the labor organization establish 1 61 Stat. 136 et seq., 29 U. S. C., Supp. I, Sec. 141 et seq., hereinafter called the Act. 2 The General Counsel of the National Labor Relations Board or his counsel may be re- ferred to herein as the General Counsel ; the Regional Director for the Sixteenth Region as the Regional Director ; Traders Oil Company of Houston as the Company ; the Employee Committee as the Committee or Contract Party ; and Local 4-227, Oil Chemical and Atomic Workers International Union, AFL-CIO, as the Union. Dates mentioned below, unless otherwise expressly noted, are for the year 1956. 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its majority status by a Labor Board election, which insistence was in bad faith and was made in order that the company might have time within which to undermine the union; further on or about May 14 and 15, 1956, the above- named Employer on the day before and the day of the National Labor Relations Board election (39-RC-1039) voluntarily recognized a different labor organiza- tion after Local 4-227 named above had requested recognition and had offered to prove its majority status. On or about May 1, 1956, and at all times thereafter, the Employer by its officers, agents and employees, had dominated and interfered with the formation by its employees at its Humble premises of a labor organization; and did con- tribute to the support thereto, the said labor organization being known as the Employee Committee, whose administration and operation has been dominated and interfered with by said Employer. By the acts set forth in the paragraphs above, and by other acts and conduct, the Employer by its officers, agents and employees interfered with, restrained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.3 The complaint alleges, with respect to substantive violations of the Act, that on or about April 6 a majority of the employees of the Respondent in an appropriate bargaining unit designated or selected the Union as their representative for the purposes of collective bargaining 4 and that at all times since then the Union has been such representative; that on April 13 the Union requested the Company to bargain collectively in respect to the working conditions of the employees within the described unit, and that on that day and on April 25, May 14 and 15, and thereafter the Respondent refused to so bargain; that the Company "did on or about May 14, 1956, initiate, form and sponsor the Employee Committee" and thereafter "assisted, dominated, and interfered with the administration of said Employee Committee." The complaint asserts that the Respondent through certain named officers, agents, and representatives have since about April 16 interrogated, kept under surveillance, threatened, and warned some of its employees in connection with the union activities of employees, particularized in the complaint as to dates and names as discussed below.5 The answer of the Company effectively denies the substantive violations of the Act pleaded in the complaint, and sets up certain affirmative defenses. The answer of the Employee Committee, party to a contract between it, and the Respondent, constitutes in effect a full denial of the allegations of the complaint, so far as this party (Employee Committee) is involved herein. This case came on to be heard before the duly designated Trial Examiner, pur- suant to notice of hearing, at Houston, Texas, on September 18, 1956. The hearing was closed on the following day. At the hearing, the General Counsel and the Respondent were represented by counsel. Full opportunity to be heard, to examine and cross-examine witnesses, to argue orally upon the record and to file briefs, proposed findings of fact, and conclusions of law was afforded each party. Counsel for the General Counsel argued briefly to the record at the hearing. A brief was submitted for the Respondent. Motions to dismiss and to strike, made at the hearing on behalf of the Company are now denied.6 81t will be noted that the second amended charge claims no unlawful discharge of em- ployees by reason of union activities , as set forth in the original and first amended charge. * The collective-bargaining unit for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act is alleged in the complaint to be "all production and maintenance employees at Employer 's [Respondent's] Humble, Texas, premises, exclusive of office clerical , guards and supervisors as described in the Act." See pp . 761-763, below. At the outset, able counsel for the Company contended for and now maintains the position that the real parties in interest, Individual employees as principals who entered Into a contract with the Company on May 15 , have not been made parties to this proceed- ing. Further, the Company says that because of the pendency of proceedings before the Board in Case No . 39-RC-1039 (not reported in printed volumes of Board Decisions and Orders ) at the time the complaint was issued In this case , the Company has been con- fronted with a situation where the Union has an opportunity , now to "take two bites at the apple" to the prejudice of the Company . This argument would have value , except that the facts of the case show no prejudice against the Company. The Company at all times herein had more or less complete knowledge of the interest of its employees In the Union. Briefly stated , the Trial Examiner is not convinced that the Company was prejudiced in any way, because of the results of the consent election and subsequent filing of objections to TRADERS OIL COMPANY OF HOUSTON 759 Upon the entire record in this case, from his observation of the witnesses, and upon careful consideration, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT, TRADERS OIL COMPANY OF HOUSTON The Respondent, Traders Oil Company of Houston, is and has been at all times material hereto, a corporation organized under and existing by laws of the State of Delaware, having its principal office and place of business in the city of Houston, Texas, and is now and at the times mentioned herein has been engaged at this place of business in the city of Houston in the production and sale of crude oil, operating several field locations from this place of business in the city of Houston. During the 12-month period ending January 1, 1956, which period is representa- tive of all times material hereto, the Respondent purchased supplies and equipment, consisting principally of pipe, tools, and machinery valued in excess of $90,000. During the same period, the Respondent sold products consisting principally of crude oil, valued in excess of $250,000, to interstate pipeline companies, engaged in interstate operations. The Respondent during the times set forth herein and now is engaged in com- merce, and activities affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 11. THE LABOR ORGANIZATIONS INVOLVED Local 4-227, Oil, Chemical and Atomic Workers International Union, AFL-CIO; is a labor organization within the meaning of Section 2 (5) of the Act. Employee Committee, party to a contract with the Respondent, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES Union Effort to Organize-Requests to Bargain About the middle of the month of March an employee of the Company with another person approached L. Tom Fox, secretary and treasurer of the Union, con= cerning how union membership could be obtained by employees of the Company and how a contract or collective-bargaining agreement could be negotiated.. Fox informed them that he intended to conduct a meeting of rig builders in Humble, Texas, a few days later, and that if employees of the Company were interested in a union they could attend that meeting and discuss the matter further with him. It appears that some employees did attend that meeting held on or about March 27. Thereafter, on April 6, Fox met with a number of the employees of the Com- pany at the American Legion Hall in Humble, at which 13 employees signed applications for membership in the Union,7 in the presence of Fox, and turned them over to him at that time. At this meeting, after general discussion, the men present authorized Fox to request the Company for a meeting. On the morning of April 13, Fox testified, he talked to S. D. Lambdin, company vice president, on the telephone and informed Lambdin that he had been approached by a majority of the Company's employees from the Humble Field and that as the .representative of the Union he would like to "sit down and bargain for the employees" and attempt "to arrive at a contract that would be to the advantage of both the employees and the Company." Lambdin suggested that he would like to consult counsel. Thereafter, on April 25, Fox, Marion Ladwig, attorney for the Union, and Wade, president of the Union, met with Lambdin and Raymond W. King, attorney for the Company. Fox had some forms of contract with him, which he intended to use as a basis for discussion. At this meeting, the company representatives questioned the claim of the Union that it represented a majority of the employees in the bargaining unit. Before that day, on April 16 (pursuant that result. The knowledge company officials had concerning the activitise and interest of its employees in and for organization precludes the sustaining of its positions. Aiello Dairy Farvns, 110 NLRB 1365; Franchester Corporation, 110 NLRB 1391; Alexander Manufacturing Company, 110 NLRB 1457. 'Fox was informed by the men at this meeting that there were 14 production and maintenance employees then in the employ of the Company. T. R. Cunningham, not pres- ent at the.April 6 meeting, transmitted his application and authorization card to Fox on or about April 10. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to.written instructions from Lambdin to the field superintendent on April 13) 8 of the 14 employees in the claimed bargaining unit had been laid off from work.8 After the meeting of April 25 , Fox arranged a meeting with the employees which was held on May 1 . At this meeting , the layoff of April 13 was discussed and according to the testimony of Fox the men present indicated they wanted the Union to continue to represent them. At any rate , 6 employees of the first 14 executed new applications for membership and authorization to the Union to represent them .9 On May 7, the Company and the Union entered into a stipulation for a consent election, to be conducted under the direction of the Regional Director , to deter- mine whether the employees desired to be represented by the Union for the purposes of collective bargaining. The Regional Director was designated by the parties to the stipulation to conduct the consent election. An election was conducted on May 15. Nine employees voted, and all nine votes were adverse to the Union. The eligibility of employees entitled to vote in this election was established by the Company's payroll as of the week ending May 15. Contract Agreement between Company and Employees On the day before the election, a safety meeting was conducted according to usual company practice. On this particular day, according to the testimony of T. R. Cunningham , one of the employees, Vice President Lambdin requested or suggested that the men present such gripes or grievances as they then might have. According to this witness , Lambdin either then or at some other time, in talking to a group of employees, said "that whatever he told the men he would do he was willing to put it in writing." On the evening before the consent election (set for and later conducted from 12 noon to 12:30 p. in. on May 15 ) a meeting of employees was held at the home of G. C. Tullos, a gang pusher, when they drew up a form of contract or agreement to present to Lambdin. On the following morning the employees met with Lambdin , handed him the pencilled draft which Lambdin accepted and arranged to have typed by a person in the field office. Later in the morning Lambdin brought the typed document to Cunningham and O. 1. Tullos to the location where the 2 men were working and there the 3 men affixed their respective signatures.10 There is in evidence an identical copy of this so-called contract signed by Cunningham, O. J. Tullos, and Lambdin on May 15, except that a copy also bears the signatures of M. L . Pearson, L. R. Hester, R. W. Tullos, G. C. Tullos, E. S . Childress, and D. E. Blunt, for the employees, and also a notary's jurat as follows: - State of Texas, County of Harris. Before me, the undersigned, a Notary Public in and for said County and State, on this day personally appeared O. J. Tullos, T. R. Cunningham, S. D. Lambdin, known to me to be the persons whose names are subscribed to the foregoing instrument , and acknowledged to me that they executed the same for the purposes and considerations therein expressed. Given under my hand and seal of office this 15th day of May 1956. [Signature and stamp of Bettye Goodwin as Notary.] It is not precisely clear as to the times when the additional six signatures were affixed. It would seem that they were not on the document at the time the notary executed her jurat, intended to show that O. J. Tullos, Cunningham , and Lambdin had subscribed to the agreement , although there is vague testimony indicating that one or more employees may have signed in the bathhouse during the morning. At the hearing herein the Company at the request of the General Counsel, submitted three lists of names of employees employed on April 6, for the payroll period April 1-15, and of employees on the payroll May 15: e The appropriate bargaining unit claimed by the Union included all production and maintenance employees , i. e., roustabouts and roughnecks and production employees work- ing on the Humble Field drilling lease. The authenticity of employee signatures to membership application cards as to those 14 of April 6, Cunningham 's of April 10, and those 6 of May 1, seems clearly established by competent proof. 10 The document , written on the letterhead of Traders Oil Company of Houston, dated May 15, 1956, is entitled "Contract Agreement Between Traders Oil Company of Houston, And The Production Maintenance Employees Of, Humble Field , Humble, Texas. " It covers, in some 18 Articles , provisions for wages , sick leave , vacations , holidays , and other terms and conditions of employment. TRADERS OIL COMPANY OF HOUSTON 761 List of employees on payroll April 6, April 1-15, and May 15, 1956-Humble Field April 6 April 1-15 May 15 P. C. Bates P. C. Bates P. C. Bates W. M. Borders.. W. M. Borders E. S. Childress E. S. Childress D. E. Blunt T. R. Cunningham T. R. Cunningham E. S. Childress L. E. Hester W. E. Dawson T. R. Cunningham M. L. Pearson L. E. Hester W. E. Dawson R. E. Pearson, Sr. E. D. Hodges L. E. Hester T. J. Perryman M. L. Pearson E. D. Hodges G. C. Tullos R. E. Pearson, Jr. M. L. Pearson O. J. Tullos R. E. Pearson R. E. Pearson, Jr. R. W. Tullos T. J. Perryman R. E. Pearson D. E. Blunt G. C. Tullos T. J. Perryman W. M. Borders** O. J. Tullos G. C. Tullos W. E. Dawson** V. Tyler O. J. Tullos E. D. Hodges** N.,J. Goss R. W. Tullos V. Tyler** V. Tyler N. J. Goss *These men tvere not working but received earned "vacation" pay. It appears from the testimony herein that of these men whose names appear on each list that R. E. Pearson, Sr., and G. C. Tullos were supervisors under the definition of "supervisor" as contained in Section 2 (11) of the Act. On the basis of testimony of employees called as witnesses by the Respondent, it is shown that the employees who continued to work and who had not been laid off on April 16, had, about a week before the election of May 15, begun to discuss among themselves whether it might not be to their advantage to deal directly with Lambdin and the Company, rather than through the Union as their representative. Apparently, these men or most of them, had decided to deal with Lambdin separately at or before the time of the meeting at the home of G. C. Tullos on the evening of May 14. As above related, the group met with Lambdin early the following morning and agreed upon the terms of a contract. This agreement was signed by Lambdin for the Company and O. J. Tullos and T. R. Cunningham for the employees before the holding of the election on that day, and then signed by employees M. L. Pearson, L. E. Hester, R. W. Tullos, G. C. Tullos, E. S. Childress, and D. E. Blunt. After the meeting of May 1, Fox had no direct personal dealings with the employees, except that he said he did dispatch a letter to each of them who, on May 1, had signed a second application-authorization card, "requesting them to take part in the election." On the day of the election, Fox said he drove out to the site but upon being advised by a representative of the Regional Director that his presence might be construed as electioneering, immediately left the premises. He did not then know that the employees had entered into an agreement with the Company. On the following day Fox telephoned the Regional Office in Houston, and was informed concerning the result of the balloting. It was after this that Fox was informed by representatives of the Regional Director that the contract had been entered into between the employees and Lambdin.ii Alleged Interrogation of and Threats to Employees Fox first telephoned Lambdin on April 13 to request a meeting; on that day Lambdin directed a letter to R. E. Pearson, Sr. (the field superintendent on the lease where the men the Union claimed to represent worked) directing him to lay off 8 of the 14 men. Prior to this date, the General Counsel asserts, Lambdin and Pearson, Sr., interfered with the rights of the employees of the Company, through interrogation, threats, and surveillance, to engage in concerted union activities. Edward D. Hodges, an employee laid off on April 16, testified to a conversation between him and Superintendent Pearson on about April 10 in which the Union was discussed. Hodges testified that while he and Pearson were seeking shelter from rain in an automobile, Pearson asked him "what do you think the boss is going 11 Thereafter, the Union filed objections to conduct affecting the result of the election, the Regional Director signed a report on the objections of the Union, and the Company filed exceptions to the report of the Regional Director. Case No. 39-RC-1039 (not reported in printed volumes of Board Decisions and Orders). 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to. say about you boys going Communist on him out there ?" and that Hodges told Pearson that he did not think "we were going Communist ," that "we have got the right to do what we have done " and that "I wanted to have an understanding with them since we had decided upon the Union." Pearson's version of this conversation was different; he said Hodges told him about the Union, and explained that the reason he wanted the Union was "to know where we are standing." Pearson denied that he had questioned Hodges about "going Communist." Wilbur M. Borders testified that on the Monday morning (April 16) he and others were laid off from work, and he and some five other men went to Pearson's office for the purpose of obtaining a copy of a letter understood to have been received by Pearson in connection with the layoff . Pearson was in his office, as was Walker, described as a bookkeeper. Borders asserts that he and the others entered into a discussion with Pearson concerning the reason for the layoffs ; that "the conversation was a little heated and voices getting loud"; that Borders (in effect) protested the layoffs and that Pearson asked "Well, who started this mess anyway?" Borders' testimony continues: And so I stood up and said that I was glad that I started it. . . Mr. Pearson said a couple of times and laughing that he was glad he found out who started it, and he would see I never worked for Traders Oil Company as long as he was superintendent out there... . Pearson denies the statements attributed to him by Borders. Raymond E . Pearson, Jr., the son of the field superintendent , testified .that shortly after April 6, when he and others had signed union application -membership cards Well, I talked to my father . I told him that we had all joined the union , signed union cards, and he said "Well, looks like you all bumped yourselves out of a job." And that's just about all there was to it. I never argued with him. This testimony is not contradicted ; rather, the' Respondent accorded it little weight as being but a casual family conversation between father and son. . It seems clear enough, although the time or times are not too closely fixed, that Vice President Lambdin did , just prior to the election of May 15, inform the employees in effect that they were free to vote as they wished ; that he would be willing to entertain any complaints they might have and attempt to adjust them, and that he would reduce any understanding to writing. He is quoted by Cunning- ham as saying (and it is not specifically denied ) that "he still hadn't found out what the men was wanting or what their gripes were , but he was still willing to try to straighten it out with them." The Respondent offered to prove that sometime in the month of March, Lambdin had indicated to Pearson that it might become necessary for the Company to retrench operations , particularly , since one well, Bender No. 6, had after drilling, proved dry. The Trial Examiner rejected the testimony of Pearson to this effect. There are, it is true, statements on the record to the effect that rumors were spread during the month of April that there might be layoffs because the Bender No. 6 operation had not been a success . Blunt, for example, testified to the effect that P. E. Bates, another employee, had reported, about a week before the election , that a rumor was being circulated to the effect that Lambdin was planning to hire a pulling crew and cut the employees down to two pumpers; and Pearson said that he had mentioned the possibility of layoffs to certain employees . The proof offered here by the Respondent on the one side and the General Counsel on the other is too vague to permit the Trial Examiner to decide whether it is relevant or not . It therefore is disregarded. One other incident should be reported. An undated longhand letter, shown to have been mailed to the Union on June 6, for the attention of Fox, was received by the latter on the following day: DEAR SIR: Please accept this as our withdrawal from Local No. 4-227 as of this date. Please advise us when withdrawal is completed. Signed, and the letter had affixed what appears to be the original signatures of T. R. Cunningham, L. E. Hester, D. E. Blunt, Earl S. Childress, R. W. Tullos, M. L. Pearson , O. J. Tullos, and G. C. Tullos. The Trial Examiner rejected the offer of this letter by the Respondent as being not material or relevant to the issues herein. Counsel for the Respondent takes an opposite view, in support of the Respondent's position as mentioned below. . It is argued with force on behalf of the Respondent , in connection with the alleged interrogation of, and threats to, certain employees that the several con- TRADERS OIL COMPANY OF HOUSTON 763 versations reported by the witnesses called on behalf of the General Counsel were in themselves proper and do not bear the significance attached to such occasions by the General Counsel. The rainy-day conversation between Hodges and Superin -tendent Pearson is characterized as a private conversation and, it is suggested, that Hodges engaged in "excesses of expression at the May 1 meeting" and that there is no assurance that anyone had any knowledge of this conversation and conse- quently no one else was influenced by virtue of some repetition by Hodges of his report of the conversation with Pearson. The Respondent also contends that there is an existing question as to whether Hodges was not in fact, at the time the con- versation occurred, in the position of a supervisor. There is no adequate testimony in the record which would show that Hodges was a supervisor; on the contrary, it appears that he merely relayed orders to other men previously given to him by Pearson. Regarding the appearances in the field office on the morning of Monday, April 16, Pearson emphatically denied that he had made the statements attributed to him by Borders, to the effect that he stated he would see that Borders would never again be employed by the Company, or that he laughed at Borders or indicated in any way that Borders, along with other employees, were being laid off by reason of their. interest in the Union. Respondent says, too, that the expressions advanced by Lambdin and Superin- tendent Pearson on various occasions prior to the election of May 15, were merely expressions of view to which they were entitled to make under the "free speech" provisions of the Act; that there is nothing intimidatory or coercive in such remarks as they may have made; and that, in effect, it would be farfetched to assume that. either of these two men had or intended to interfere with the activities of the em- ployees in connection with union organization. There can be no question concerning the knowledge of Lambdin and Pearson of the interest of the Company's employees in the Union between April 6 and May 15. The Trial Examiner could be involved in a situation requiring the choice between equally unsatisfactory alternatives in a resolution of the question as to whether or not the Company through Lambdin and Pearson, had in fact interfered with the concerted activities of the Company's employees toward union organization, except for the fact that there seems to have been a lack of understanding on the part of these company representatives as to their duties and responsibilities in connection with the activities of the employees and the efforts of the employees to obtain recognition as an organized unit for the purposes of collective bargaining. The Union through its representatives, between April 6 and April 25, had con- cluded that the employees in the Humble Field of the Company desired to be rep- resented by it for the purposes of collective bargaining. This, not withstanding that the Company by decision made on April 13, effective April 16, had laid off 8 of 14 employees. The remaining six employees, on May 1, ratified their desire for union representation by reexecuting union application-membership cards. During the week prior to and up to the very morning of the election of May 15, the employees then on the payroll of the Humble Field experienced a change of heart, and decided, in the words of Blunt, that "they wanted a little union of their own." The circumstances as shown by the testimony of all witnesses must be decisive in the resolution of the issues raised herein. There is no serious or real question of credibility involved, as to any individual who gave testimony at the hearing-the circumstances of the case as related by the witnesses plainly show that when Lambdin and Pearson heard of collective action by the employees of the Company, they promptly and not too subtly intervened. The unseembly haste displayed by Lambdin to enter into a collective-bargaining agreement on the very morning of the day an election by secret ballot was to be held under the auspices of the Board to resolve the question as to whether or not the Union should represent the employees in an agreed-upon bargaining unit, is suspect. Why should not, before the beginning of balloting, the Company have advised the Union or the Regional Director, or both, that it had that day entered into an agreement, or contract, with its employees, "as principals"? The Respondent urges too, that the reported conversation between Raymond Pear- son, Jr., and his father, Superintendent Pearson, was a private conversation between father and son, and that Raymond, Jr., had been hired only temporarily, having been put to work in the shop as a helper until he could find a better job. The Respondent argues that the statements made by Lambdin were perfectly proper and that no showing had been made by the General Counsel as his remarks or actions can be considered to have been coercive or have the effect of intimidation of, or in- terference with, the activities of the employees in connection with their union interest. As to the charges against Lambdin, that he said he was still trying to find out what gripes the employees had, and that if the employees would tell him their gripes he 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would make it right with them, it is argued that it surely is a matter of plain common knowledge that learning of and adjustment of complaints of employees is an inevit- able part of being in business, whether the complaints be learned of and adjusted through the medium of an outside union, an independent union, or direct contact with the individual employees; that the statements attributed to Lambdin contained no threats or promises of benefit, that his offer to adjust the complaints of employees was made in general terms and no specific solution was promised. The Respondent further contends that the record clearly shows as so far as Lambdin was concerned, any way that the men wanted to vote was entirely up to them and that there is a lack of proof in the record that any employee was threatened or warned or put under surveillance. Summary of the Evidence and the Contentions of the Parties Against the case presented in support of the allegations of the complaint and on the main facts as set forth above, the Respondent interposed defenses of fact and of law. There are, obviously, certain questions of credibility here, which the Trial Ex- aminer does not find too important to decide for the purpose of determining this case. Superintendent Pearson and Hodges disagreed as to the exact statements made by each during the course of their conversation on April 10; a different meaning or interpretation is given by Pearson and Borders as to what was said and what occurred in Pearson's office on April 16; and different meanings are offered concerning the remarks made by Pearson to his son. Were the Trial Examiner called upon to decide whether Pearson or the employees have the better memory, he would decide that subsequent events demonstrate that the recollection of the employees in each instance was more accurate than that of Pearson. The essential fact is soundly established, namely, that responsible officials of the Company (Lambdin and Pearson) were fully informed of union activities on April 6 and 13 and May 1, and thereafter. The Respondent says first, that the Company did not refuse to bargain with the Union; second, that charges of interrogation of employees and interference by threats and intimidations are unfounded; third, that the Company did not assist in the forma- tion of an employee committee or any other labor organization, or dominate it; and finally, that the mere fact of signing the contract or agreement on May 15 is not in itself an unfair labor practice. Even though the information given by Fox to Lambdin on April 13 to the effect that he represented a majority of the employees in a claimed appropriate bargaining unit, be not considered a demand to bargain in the technical sense, nevertheless, there can be doubt that the Union through Fox, Wade, and its attorney, and an employee com- mittee did on April 25 effectively request recognition for the purposes of collective bargaining. The mere fact that the company representatives at that time expressed doubt that the Union actually did represent a majority would have no effect insofar as the validity of the request for recognition and to bargain, made by the union rep- resentatives, was concerned. At that meeting, and thereafter, Fox offered to submit the question as to whether he actually represented a majority to an impartial third party, which offer was declined by the Company. That the bargaining unit claimed by the Union on April 25 was considered by the Company to be an appropriate one is established by the fact that the Company did, in executing the consent-election agree- ment of May 6, agree to the bargaining unit suggested by the Union. That the Company as early as April 6, through Pearson and Landon, and as late as May 15, was fully apprised of union organizational activities is clearly demonstrated upon the record. The very fact that during this period of time Pear- son discussed not only with his son, but other employees', statements said to have been made to him by Lambdin that it might be necessary for the Company to lay off men, at least temporarily, confirms the opinion of the Trial Examiner that these conversations were not merely fortuitous but were intended by the company repre- sentatives to affect the thinking of employees regarding the necessity or advisability of joining a union. That the layoff of 8 men on April 16, pursuant to instructions given to Lambdin on April 13, after he had received Fox's telephone call, was followed by the reexecution of the 6 remaining employees of union application- membership cards, demonstrates again that these employees had confirmed their choice of the Union to represent them. The position of the Company that the execution of the contract or agreement between it and the six employees on May 15 constitutes a binding, continuing obliga- tion on the part of the Company to observe the provisions of that contract or agree- ment, is not well taken, considering the whole circumstances of the case. The entering into of an agreement for a consent election is a contract, and, as such, its provisions, if not otherwise contrary to law, are valid and binding upon the TRADERS OIL COMPANY OF HOUSTON 765 parties, who have expressed their mutual assent thereto. N. L. R. B. v. Carlton Wood Products, 201 F. 2d 863 (C. A. 9). The purpose of a consent-election agreement is to provide for a prompt and final settlement of such controversies as may arise between the parties and thus minimize the delay in the administration of the Act and, as said in Semi-Steel Casting Co. of St. Louis v. N. L. R. B., 160 F. 2d 388, cert. denied 332 U. S. 758, in such circumstances there is no reason why the Company should not be bound by the provisions of the election agreement, to which it is a party. The Sixth Circuit Court of Appeals construed a consent- election agreement as a waiver of any right to a formal proceeding before the Regional Director, N. L. R. B. v. The Standard Transformer Company, 202 F. 2d 846, and said that in the absence of fraud or gross mistake the consent-election agreement may not be set aside. N. L. R. B. v. Volney Felt Mills, Inc., 210 F. 2d 559 (C. A. 6). On the evidence offered herein it clearly appears that the Union, from May 1 through May 15, held authorization cards entitling it to believe that it represented the majority of the employees in the agreed-upon unit. No employee or group of employees at any time advised Fox or any other union representative that he or they had withdrawn or intended to withdraw his or their authorization to the Union. The Company had no right, after the execution of the consent-election agreement on May 7, to disregard its obligation to carry through its agreement for such an election. The Respondent's representative, Lambdin, was fully justified, in the opinion of the Trial Examiner, not to immediately commit himself to bargain with the Union simply because Fox, for the Union, advised by a telephone call that the Union was authorized to bargain on behalf of the Company's employees at the Humble Field. The almost immediate action of Lambdin, on that day (April 13), in ordering Pearson to lay off a number of employees, raises a question as to whether the layoff so ordered was occasioned because of Fox's call, or whether it arose out of economic necessity and business judgment. After the meeting between Union .and Company on April 25, at which the Union made a clear request to bargain, the motives of the Company in delaying recognition of the Union, in the absence of any claimed unfair labor practice could not thus have been doubted. The Union had no knowledge then of the conversations between Pearson and the employees as testified to by Hodges, Borders, and Pearson, Jr. The reexecution of membership-application cards on May I by Childress, G. C. Tullos, O. J. Tullos, Cunningham, R. W. Tullos, and Pearson, the same men who with Hester signed the May 15 contract with the Company by Lambdin, raises a conclusive presumption, in the absence of testimony to the contrary, that the Union on May 1 had no knowledge that these men had any intention of withdrawing from the Union. Indeed, the preponderance of proof shows that it was only during the week preceding the election and ultimately in the evening before that these men began to consider a "little union of their own." These times almost collide with the date on which the Company agreed to a consent election. The meeting of the men on the evening of May 14, Lambdin's remarks at the safety meeting on the morning of May 15, the apparent hurry in the making of agreement and execution of the May 15 contract, and the result of the balloting (following the execution of the agreement), leads the Trial Examiner to believe that in totality of conduct, between April 6 and May 15, the Company through its representatives, did engage in activities intended to discourage membership in the Union, and he so finds. It seems more than strange that not one of the six men who signed the May 15 agreement, nor any representative of the Company, exerted any effort to notify a representative of the Union or a representative of the Regional Director, before the balloting on May 15, that a contract or an agree- ment which in effect repudiated the Union had been made that very morning.12 In support of its position that the Respondent. had a legal right within all of the provisions of the Act to enter into an agreement with a group of individuals or committee of employees on May 15, it relies heavily upon National Labor Rela- tions Board v. Henry Mayer, d/b/a Cherokee Hosiery Mills, 196 F. 2d 286 (C. A. 5), 12 Whether the employee parties to the May 15 agreement were "principals" as indi- viduals, as contended by the Respondent, or "Employee Committee," as asserted by the General Counsel, in the circumstances of sequence and effect does not make much dif- ference here. A formal answer to the complaint herein, signed Employee Committee by 0. J. Tullos, agent, and T. R. Cunningham, agent, is in evidence. The Trial Examiner finds that the evidence herein shows that the Employee Committee, as constituted on May 15, was a labor organization within the meaning of the Act. Coppus Engineering Corporation, 115 NLRB 1387; cf. Glove Workers Union of Fulton County, etc. (Crescendoe Gloves Inc.), 116 NLRB 681. 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .decided May 2, 1952, rehearing denied June 6, 1952. There the court held that the requirements of the Act that the employer bargain in good faith with the union is not violated because the employer and the union are unable to reach an agree- ment. There 9 of 11 employees had designated a union as their bargaining repre- sentative by signing cards, but before certification of the union as bargaining agent by the Board, 7 of the 9 employees signed a letter addressed to the Regional Director of the Board, claiming that they constituted a majority of the employees, then 10 in number, and disclaimed the union as their bargaining representative. .In these circumstances, the court said, the employer was not guilty of an unfair labor practice in acceding to the wishes of the seven employees and in discon- tinuing dealing with the union. In that case the Board had, as here, charged unfair labor practices on the part of the employer, in violation of Section 8 (a) (1) and (5) of the Act. Another case in the Sixth Circuit, National Labor Relations Board v. West Ohio Gas Company, 172 F. 2d 685, seems at first glance to lend support .to the respondent's position. There it appeared that employees of their own accord had withdrawn from the union, thereafter met in a body and conferred with the employer's representatives and asked and received an increase in wages. In that case an independent union, prior to 1942, represented the respondent's employees and thereafter a union affiliated with the American Federation of Labor was certified as bargaining representative; in January 1945 a local union of the Congress of Industrial Organizations was certified by the Board as exclusive bar- gaining agent. Some 42 men were covered by a contract executed between the employer and the Union, the contract to run from January 26, 1945, to January 26, 1946. After June 1945, only 2 of the 23 members of the certified union paid dues and it appears from the testimony at the hearing (on a complaint alleging the committing of unfair labor practices) that most of the members wished to withdraw from the Union. The facts in the instant case are different from those shown in N. L. R. B. v. Mayer and N. L. R. B. v. West Ohio Gas Company, supra. Relying upon these cases, the Respondent says that the facts in the instant case show beyond question, that the preparation of the contract of May 15 was the product of the initiative of the employees and not the initiative of management, and that the contention of the Union and the General Counsel that the Employer should have rejected the proffer on the part of these employees to become parties to a contract because there was no inducement-on the part of the Company here and that the contention is in the very teeth of Section 7 of the Act, which explicitly guarantees to the employees the right to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining. The Trial Examiner is impelled to reject the argument of the Respondent. With respect to the denial of the Company to refuse to bargain with the Union, the Respondent mistakenly assumes that the Act requires that a request to bargain be made in so many words. This contention certainly has no merit. By clear implication the Union on April 25 requested the Company to bargain with it, and the Company more clearly and not by implication refused to bargain with the Union until it had been proven to its satisfaction that the Union actually repre- sented a majority of the employees in the undisputed appropriate bargaining unit. All that was required in the circumstances of this case on that day was that the employees must at least have signified to the Company their desire to negotiate. Under this standard the requirement of a request to bargain was fully met. N. L. R. B. v. Columbian Enameling & Stamping Co., Inc., 306 U. S. 292, wherein the, Court said (p. 297) : Section, 8 (5) [of the Act] declares that it is an "unfair labor practice" for an employer "To refuse to bargain collectively with the representatives of his employees," and §§ 2and 10 (c) give to the Board an extensive authority to order the employer to cease an unfair labor practice and to compel reinstate- ment of employees with back pay when employment has ceased inconsequence of a labor dispute or unfair labor practice. See N. L. R B. v. Mackay Radio & Telegraph Co., 304_U. S. 333. While the Act thus makes it the employer's duty to bargain with his employees,, and failure to perform that duty entails serious, consequences to him, it imposes no like duty on his ,employees. Since there must be at least two parties to a bargain and to any. negotiations for a bargain, it follows that there can be no breach of the statutory duty by the employer-when he has not refused to receive communications from his employees-without some indication given to him by them or their:representa- TRADERS OIL COMPANY OF HOUSTON 767 tives of their desire or willingness to bargain. In the normal course of transactions between them, willingness of the employees is evidenced by their request, invitation, or expressed desire to bargain, communciated to. their employer. See also Joy Silk Mills, Inc. v. N. L. R. B., 185 F. 2d 732 (C. A., D. C.) cert. denied 341 U. S. 914. Cf. Scott & Scott, 113 NLRB 911, 930. Company Domination of Employees in Formation of Independent Labor Organizations The General Counsel, carrying the burden of proof in respect to the organization of the Employee Committee, and its domination by the Company has failed to show, except by implication, that Lambdin and Pearson did in fact organize and dominate an independent labor organization. In the full context of the evidence presented, the Trial Examiner believes that the burden of proof in this respect has not been sustained. However, the facts as disclosed do show that the Company was altogether too willing to accept the employees on the payroll on May 15, either as a committee or as a group of "principals," across the bargaining table in contra- vention of Section 8 (a) (1) of the Act. The Trial Examiner so finds. Concluding Findings 13 The whole of the complexion of this case shows that the Company refused to bargain collectively with the Union, as the representative of the employees of the Company in an appropriate bargaining unit, at times the Union actually held full membership for representation purposes. The Trial Examiner so finds. The record further reflects that the Company, through its representatives, took an untoward interest in the activities of its employees regarding concerted activities, and interfered with the efforts of these employees to engage in independent right to self- organization. The Trial Examiner finds that the Company, respondent herein, has violated Sec- tion 7 of the Act, and has contravened Section 8 (a) (1) and (5) of the Act. On the preponderance of testimony and proof herein, the Trial Examiner finds that the Company, respondent herein, is not and has not been in violation of Section 8 (a) (2) of the Act, and that the parts of the complaint in this respect should be dis- missed.14 Upon the basis of the foregoing findings of fact, and upon the entire record in this case, the Trial Examiner makes the following: 's At the request of counsel, the Trial Examiner has reviewed a number of reported cases ; among others, N. L. R. B. v. Southeastern Rubber Mfg. Co., Inc., 213 F. 2d 11 (C. A. 5), enfd. 106 NLRB 989; N. L. R. B. v. Reeder Motor Co., 202 F. 2d 802 (C. A. 6) setting aside 96 NLRB 831. These and many other cases, are not precise to the main issues of this case. 14 The following provisions of the Act are relevant to this case : "RIGHTS OF EMPLOYEES "Sec. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choos- ing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected of an agreement requiring membership in a labor organization as a condition of em- ployment as authorized in section 8 (a) (3). "UNFAIR LABOR PRACTICES "Sec. S. (a) It shall be an unfair labor practice for an employer- "(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 ; "(2) to dominate or interfere with the formation of administration of any labor organization or contribute financial or other support to it: Provided, That subject to rules and regulations made and published by the Board pursuant to section 6, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay ; "(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organi- zation : . "(5) to refuse to bargain collectively with the representatives of his employees, sub- ject to the provisions of section 9 (a)." 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Traders Oil Company of Houston, Respondent herein, is an Employer within the meaning of Section 2 (2) of the Act, and is engaged in commerce within the Meaning of Section 2 (6) and (7) of the Act. . 2. Local 4-227, Oil, Chemical and Atomic Workers International Union, AFL- CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. Employee Committee is a labor organization within the meaning of Section 2 (5) of the Act. 4. All production and maintenance employees employed by the Respondent at its Humble, Texas, lease, exclusive of office clerical, guards, and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 5. On or before April 28, 1956, and at all times thereafter, the Respondent re- fused, and continues to refuse to bargain collectively with Local 4-227, Oil, Chem- ical and Atomic Workers International Union, AFL-CIO, as the exclusive representa- tive of all its employees in the bargaining unit described in the paragraph numbered 4, above, in contravention of Section 8 (a) (5) and (1) of the Act. 6. The agreement or contract made and executed between Employee Committee, consisting of certain employees of the Respondent and the Respondent on May 15, 1956, is not a bona fide collective-bargaining agreement, was entered into contrary to the purposes of the Act, and is a nullity under the Act. 7. The Respondent, by interrogating its employees interfered with their rights to concerted activity as guaranteed under Section 7 of the Act, in contravention of Section 8 (a) (1) of the Act. 8. These unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Insurance Agents' International Union, AFL-CIO and The Pru- dential Insurance Company of America. Case No. 22-CB-4 (formerly 2-CB-1726). December 13, 1957 DECISION AND ORDER On December 7, 1956, Trial Examiner C. W. Whittemore issued his Intermediate Report in ,the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommended that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Company and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Respondent also filed a statement in support of the Inter- mediate Report and a brief.' The Board' has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in 1 The requests of the Respondent and the Company for oral argument are hereby denied as the record, exceptions , and briefs adequately present the issues and positions of the parties. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [ Chairman Leedom and Members Murdock and Jenkins]. 119 NLRB No. 103.