Standard Oil Co.

In the Matter Of . STANDARD OIL COMPANY, S TANDARD OIL COMPANY OF NEW JERSEY and CONGRESS OF INDUSTRIAL ORGANIZATIONS Case No. C_ 2160.=Decided August 12, 19.4,2 Jurisdiction : oil refining industry. Unfair Labor Practices Companij-Dominated Unions: domination after effective date of Act of "Plan", in existence from 1918 to 1937, which was admittedly initiated and furnished support by the respondents-"Associations" which succeeded "Plan" held like- wise dominated when they were in effect, merely minor revisions of the "Plan", and when the respondents did not disestablish the "Plan" and did not make the requisite "change" or "line of fracture" between the "Plan" and the "Associa- tion"; other incidental assistance to the "Associations". Remedial . Orders : employers ordered. to cease and desist unfair labor practices and to cease and desist from giving effect to contracts with dominated unions, dominated unions ordered disestablished. Definitions : held: that the relationship between the respondents was such, and • .the officials of the parent company had so acted, as to constitute the parent company an "employer". Practice and Procedure : dismissal of earlier charges by the. Regional Director, after investigation but without the issuance of a complaint, held not to constitute an adjudication on the merits and not to bar the Board from proceeding further. Mr. Daniel Baker, for the Board,... Mr. William' A. Dougherty, of New York City, for Standard Oil Company. .Mr. Luke W. Finlay, and Mr. C. Horace Tuttle, of New York City, for Standard Oil Company of New Jersey. Mr. Samuel L. Rothbard, of Newark, N. J., for the C. I. O. Mr. Harry D. Field, of Jersey City, N. J., for Bayonne Association. Mr. Horace A. Teass, of New York City, for Bayway Association:, Mr. John C. Flanigan, and Mr. Dominric J. Hart, of Jersey City, N. J:; for Eagle Association. Mr. George A. Koplow, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon a second amended charge duly filed on June 30, 1941," by Con- gress of Industrial Organizations, herein called the C. I. 0., the The original charge was filed on June 21, 1939, and an amended charge on October 5, 1939; both were against Standard 011 Company of New Jersey solely. 43 N. L. R. B., No. 2. 12 STANDARD OIL COMPANY i3 National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region '(New York City), issued its. complaint dated July 14, 1941, against Standard Oil Company and Standard Oil Company of New Jersey, herein called the respond- ents,2 alleging that the respondents had engaged in and were engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (2), and Section 2 (6-) and (7) of the National Labor Relations Act, 49 Stat. 449,herein called the Act. 'Copies. of the com-. plaint accompanied by notices of hearing were duly served upon the respondents, the C. I. 0., and Bayway Refinery Employees' Associa- tion, Bayonne Refinery Employees' Association, and Eagle Refinery Employees' Association, herein called the Associations. With respect to the unfair labor practices, the complaint alleged in substance (a) that about April 1, 1918, the parent company formed, created, maintained, and established a plan known as Industrial Representation Plan, herein called the Plan, at its Bayway, Bayonne, and Eagle Refineries, herein collectively -called the New Jersey Works; that it continued to maintain and dominate the administration of the' Plant among its-employees at the New Jersey Works up to 1927 when title to the New Jersey Works was transferred by the parent company to the Delaware Company, and that thereafter both respondents con- tinned to maintain and dominate the Plan in respects specified in the complaint; (b) that during April and May 1937 the respondents formed and caused to be formed, created; established, and maintained, at the New-Jersey Works, in ways specified in the complaint, labor organiza- tions. known respectively as Bayway, :Bayonne, and Eagle Refinery Employees' Associations, that thereafter the Plan discontinued opera- tions under the name of the Plan, and that the Associations are con-- tiniiations and extensions of the Plan, and successors to it; (c) that from about November 1936, the respondents have urged, persuaded, and warned their employees at the New Jersey Works to refrain from aiding, becoming, or remaining nienibers of the C. I.' O., and have discouraged membership in the C. I. O. by attacking, discrediting, and disparaging theC. I. O. and its leaders; and (d) that on December 8, 1937; the Delaware Company executed bargaining contracts with the, Associations, which contracts renewed themselves annually, 'and that, the Associations were established, maintained,. and assisted by the respondents and were not the representatives of the employees. in the units covered by the contracts at the time they were executed, as required by Section 9 (a) of the Act. 2 Standard Oil Company, incorporated in New Jersey, is generally hereinafter referred to asA the parent company. Standard Oil Company of New Jersey , a wholly owned subsidiary, incorporated in Delaware, is generally hereinafter referred to as the Delaware Company. 14 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD On July 22,'1941, the Bayonne Association filed a. "Demand` for Bill of Particulars" directed to the C.. I. 0., and another document entitled "Motions" wherein, inter alia,-(a) it moved to intervene; (b) it requested the C. I. O. to answer its demands for particulars ; and (c)-.it requested that the. place of hearing be transferred from New. -York.City to Bayonne, New Jersey. On July 25, the Regional Direc- tor granted the motion to intervene; did not rule on the demand for particulars, since- it was addressed to the C. 1. 0.; and, denied..the request for traasfer. of..the hearing. On August 11,' the respondents respectively filed motions and answers; wherein, ,inter alia, : it was moved (a)-that all or'certain specified portions of: the complaint be, dismissed, and ,(b) that certain specified portions. of the. complaint be made more definite and. certain, 'or alternatively, that the Board furnish a bill of particulars-. On: August 19 the Bayway. Association fi1e&a motion ;to' intervene. The respondents in their respective answers. admitted certain. allega_, tionswith respect to their,businesses, admitted that the C.. I. O:; the. Plan, and the Associations were labor organizations, admitted certain, other facts alleged in- the complaint, averred- the existence of others, and denied the alleged, unfair labor practices; they also set up certain affirmative defense-s.3 . The Associations filed no answers. Pursuant to notice, a hearing .was held beginning on Septeinber 11, 1941,4 and ending, on November 24, 1941, . at New York :City, before Samuel H. Jaffee, the Trial.Examiner, duly designated by-the Chief Trial Examiner. At the opening.of the hearing, the Eagle Association filed a motion to intervene.. The Trial Examiner thereupon granted the pending motions of the. three. Associations to. intervene, the par ticipation of the Associations as intervenors being limited to the alle- gations concerning Section 8 (2) of the Act. All parties were repre- sented by counsel and participated in the hearing. Full opportunity. As an affirmative defense the respondents contend that the dismissal of certain earlier charges alleging that - the Delaware Company sponsored and dominated the Associations in violation of Sections ( 1), and •(2) of the Act constituted a-final adjudication of the matters in dispute in the instant case and that the Board is barred from proceeding further. The earlier charges were filed in March 1938 and were dismissed by the Regional Director in June 1938, after an investigation. but before .a complaint was issued . Following the dis- missal the Delaware Company posted certain notices at the request of the Regional Director. In similar cases we have frequently held that "No contention based upon the doctrine of res adjudicata can prevail since the foriner case was dismissed before hearing was reached and without opportunity for adjudication of the merits ." Matter of Sharon Optical Com- pany, Inc. and-.Albert L. Ludrick, 11 N. L. R. B. 859, 864 ; Matter of Harry A. Half, doing' business as The half Manufacturing Company and International Ladies' Garment Workers'; Union, 16 N. L.,R. B. 667 , 682; Matter of Ingram Manufacturing Company and Textile Workers Organizing Committee , 5 N. L. R. B. 908, 911. In the instant case the original charges were dismissed by the Regional Director even before a complaint . was Issued, and the Delaware Company . was not prejudiced.as a. result of the Regional Director's letter noti- fying it of the dismissal. A fortiori, the Board is not estopped from proceeding on the. present charges. ' 4 The Regional Director had continued the date of hearing three times . The Bayonne Association had moved on July 22 for a continuance. STANDARD OIL COMPA\Y 15 to. be heard,; to. examine and cross -examine witnesses, and to intro- duce evidence bearing . on the issues was afforded all. parties. At the beginning ;of the hearing, counsel for the respondents . argued their motions to- dismiss, and counsel , for the,Bayonne Association. orally moved and argued that the complaint be dismissed as to said Asso- ciation. . Counsel for the Bayonne Association also pressed his demand for particulars ,which had been directed to the C. I. 0., and his motion that the hearing be transferred to Bayonne , New Jersey. The Trial Examiner granted the . motions of the .respondents for a bill of. par- ticulars to a specified ,extent, denied the remainder of such motions, denied. all- other , pending motions ,, and denied the Bayonne Associa- tion's demand for particulars . The Trial Examiner also stated that he would_grant continuances at.appropriate times throughout the hear- ing if. they appeared to be necessary because of his denial of motions, and reserved ,"such,furthe.r action-as may seem appropriate " oil -account thereof. Certain continuances were granted later in the hearing.. at the request of counsel- for the respondents, and permission to defer cross-examination of 'several Board witnesses was granted until. a later stage of the hearing. , During the course of the hearing, on September 17, 1941 , counsel for the Boad filed particulars in response to the Trial Examiner's ruling. At the conclusion of the Board's case , counsel for the respondents and.. for Ithe Associations ..moved to dismiss the entire complaint and various portions thereof. The motions were denied . At the coriclu= sion of the hearing, the parties renewed these motions and, counsel for the Board. moved to strike a portion of the respondents' answers. The. Trial Examiner reserved his ruling on such motions at the hearing and denied them in his Intermediate Report except to the extent that they are consistent with the findings of, fact, conclusions of law, and recom- mendations of the Trial Examiner contained in said Intermediate Report. A motion by counsel for the Board to amend the pleadings to conform to the proof as to minor variations , such as in .names and' dates, was allowed. During the course of the hearing the Trial Exam- iner made rulings on-other motions and on objections to the admission of evidence . The Board has reviewed the rulings of the Trial Exam- iner and finds that no prejudicial errors were committed . The rulings are hereby affirmed. At the conclusion of the hearing, counsel for the Delaware Company, the. Bayway Association , and the Board argued orally before the Trial Examiner and later they , together with counsel for the parent company, submitted briefs to the Trial Examiner. On April 3 , 1942, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon all pal-ties , finding that the respondents had engaged in and were engaging in unfair -labor prac- tices affecting . coinmerce , within the meaning of Section 8 (1) and (2) 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Section 2 (6) and (7) of the Act. He recommended that the respondents cease and desist therefrom and from giving effect to-their contracts with the three Associations, and that they take certain affirm- ative action to effectuate the policies of the Act. Exceptions to the Intermediate Report were filed by the respondents jointly, by Bayway Association, and -by Bayonne Association, and briefs- in support of their respective exceptions were filed by the respondents jointly, and by Bayway Association. Pursuant to notice served on all parties, a hearing was held before the Board in Washington, D. C., on July 7, 1942., for the purpose. of oral argument. The respondents, Bayway Association, Bayonne Association, and Eagle Association were represented by counsel and participated in the hearing. The Board has considered the exceptions and briefs of the parties and, insofar as the exceptions are inconsistent with the findings, conclusions, and order below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE . RESPONDENTS Standard Oil Company; the parent company, was iilcor'porated in 1882 under the laws of the State of New Jersey and has its principal office and place of business in New York City. It now operates solely as a,holding company. The complaint alleges, the answers admit, and we find, that it owns all the stock of' more than 50 subsidiary corpora- tions, and the majority of the stock of-more than 30'subsidiary corpora- tions, situated in the United States and foreign countries. - Many of these subsidiaries in turn control still other' subsidiaries. The sub- sidiaries, generally, produce, refine, transport, buy, and sell crude. petroleum and petroleum products, and produce, buy, sell,` transport, and distribute Iiatural gas. Standard Oil Company of New "Jersey, the Delaware Company, was incorporated under the laws of the State of Delaware as a wholly owiled subsidiary of Standard Oil Company and has its ' principal office and place of business at New York City, It is eng;iged'in the refining of crude petroleum and the production and sale of gasoline and allied products. It owns all or a substantial, part of the stock of several subsidiary corporations which are similarly engaged. It owns and operates refineries in New Jersey and other States. The "New Jersey Works" consists of the Bayway, Bayonne, and Eagle Refineries, located respectively at Linden, Bayonne, and Jersey City, New Jersey. The parent company owned and operated the New Jersey Works until August 29, 1927, when it was' transferred to the 'STANDARD OIL. COMPANY 17 Delaware Company, which has exclusively owned and operated it since that date. The purpose of the transfer was mainly to improvethe efficiency of the operations. No appreciable change in the physical operations resulted from this transfer, and the Delaware Company formally adopted all the labor policies previously observed by the parent coin- pany. The name "New'J.ersey Works" is applied to the three New Jersey refineries for the reason, as testified to by the general manager of the New Jersey Works, that no one of them is a complete oil refinery in itself; they are,complementary rather than supplementary, and all three make up a complete oil refinery. Each specializes in certain products and, moreover, certain other products are not always com- pleted at one refinery, part of the processing operations being com- pleted at another. During the year 1940, the New Jersey Works did a total business involving approximately' 1,694,851,600 gallons of various products having a refinery value of over $86,000,000, of which substantially more than 50 percent went into interstate and export business. The parent company in its answer denies the jurisdiction of the Board as to it. The Delaware Company, on the other' hand, admits that the New Jersey Works. is engaged in interstate and foreign commerce, and con- cedes the jurisdiction of the Board. Further facts as to the relationship between and the alleged integra -tion df the two respondents are detailed-hereinafter. II. THE ORGANIZATIONS INVOLVED The Industrial Representation Plan was,' and the Congress of In- dustrial Organizations, Bayway Refinery, Employees' Association, Bayonne Refinery Employees' Association, and Eagle Refinery Em- ployees' Association are labor organizations..admitting.to membership employees at the New Jersey Works. III. TIIE UNFAIR LABOR PRACTICES A. The origin of the Plan; its structure; its administration to -1935 The Plan originated with and was devised by the Company in 1918. On or about March 25 of that year the Company issued an "Announce- ment and-Invitation to Employees" directed to the wage- earner em- The past tense is here used as a matter of convenience . The complaint alleges in effect that the Associations are the Plan by another name. e As stated above, the Delaware Company took over the operation of the New Jersey works in 1927 . References to' the "Company" or to the .."Management" throughout are to the company or management operating the refineries at the time referred to unless the con- trary is indicated . The situation existing before July 5, 1935, the effective date of the Act, is of course relevant to a 'consideration of the activities after the passage of the Act. See N. L. R. B . v. Pacific Greyhound Lines; Inc., 303 U. S. 261. 481039-42-vol. 43-2 18 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD ployees of the New Jersey Works to elect representatives.from among themselves to represent them in dealing with the management in nat- ters of -mutual interest. The announcement divided the "plants into election divisions and indicated the number of representatives to be elected-fron7 each division based upon one representative for each.150 employees.- The announcement set the -date for the election as March 27, described the 'election procedure to be .followed, and defined; the eligibility of the employee representatives. . The,first election was held on March.27 on. company property, approximately .96 percent of the eligible.employees, participating... Management officials and the.super-, visory,. ;force were not allowed to. vote. Thereupon, on April 1, 1918, provisions prepared by,the Company were agreed upon between man- agement and. the elected employee representatives, ,covering; the ein- ployment department, discipline, right of-appeal, wage adjustments, and joint conferenceprocedure. This agreement,,with various.changes and supplements of a relatively: minor nature,,remained'in effect at the New Jersey Works. until sometime.',m 1937 as more fully hereinafter, set out. All hourly rated employees were entitled to participate in the Plan. The power of the employees to choose their On representatives was l,imited.by the Plan, which. restricted their choice to employees of,the division from which elected. Moreover, if all- elected representative left .the service of the Company or transferred to another division. he automatically ceased holding office. There was no provision-in the Plan for any organization among the employee representatives. How ever, at each refinery they elected a secretary and, beginning in 1933, a chairman. The Plan made no provision for meetings of the membership, nor for any action of the membership other than the-annual:elections. Under the original agreement the employee representatives met at least quar- terly in joint conference with an equal number of management repre- sentatives of the refinery involved, and the representatives of all three plants met annually in a combined joint conference with management representatives from the three plants., The management representa- tives at these conferences consisted of the plant superintendent of the particular plant involved, department heads, and foremen of the vari- ous divisions of the refinery from which the employee representatives were elected. Members of the personnel staff of the participating' refinery were also present, and usually other persons connected with management attended, often at the request of employee representatives: - 7 A conference in which management representatives and employee representatives of a particular refinery: participated was referred to either as a' "joint conference " or it "local, - joint conference ." _ A,conference in which management and employee representatives of the three refineries' met together was referred. to as a "combined joint conference ." A "divi- sional, conference'l was a conference of management and employee representatives of^a divi- sion of a particular refinery. STANDARD OIL COMPANY 19. However, only, officially designated: management representatives and elected employee representatives voted on questions arising at the- conference. Pursuant to agreement in joint conference, shortly after inception of the Plan, Executive Councils were set-up in each plait composed of an equal number of management representatives and employee representatives.. These Executive Councils met at -the different- refin- eries from time to time between joint conferences., While the work of the local -and-'.'combiiied'joint :conferences and of the Executive Councils: was devoted mainly to . the handling of employee- grievances their work covered wages, hours, and :working conditions in general: Under ahe conference and Executive Council procedure, 'a vote of a- majority of the - management and employee representativesi:was. necessary for action. Beginning in :1934, at the request of the employee : representat.ives; - combined joint conferences were. held regularly every 3 months:, .-The. Executive Councils were thereupon discontinued and local joint con- ferences. began. to be held in each.of the 2 months between the combined joint, conferences. , Joint conferences and combined joint. conferences were held on company property, except for:the annual joint conference held in conjunction ; with the. dinner. and entertainment. furnished by the Company to management, and employee representatives shortly. after the annual. elections. These latter meetings were usually held at the-Newark Athletic Club or a Newark hotel, with the.Company paying all expenses. . The,superintendent of the particular refinery involved and the general manager of the New. Jersey. Works - automatically acted as.chairmen;at.the local joint conferences and the combined joint -conferences,. respectively. It was the custom in most instances to vote openly, rather than by secret ballot, on questions coming up at. the, -conferences. A company secretary or stenographer took notes, and later, verbatim minutes, of what occurred at;. each- conference, and .then prepared. a' narrative condensed .account. thereof which was :checked by the secre= tary of the employee representatives. After 1933 the.employees who had been selected by the representatives as their combined secretary and combined chairman were present when the minutes of combined joint conferences. were being,prepared by the company stenographer. Front 1920 to April, 1937 the narrative.minutes were printed by the . Company and, distributed to the employees of the three refineries through boxes inside the gates of the plant. The Company bore all -the: expenses of taking and distributing the minutes. Attendance at the various local and combined joint conferences, as well as participa- tion in :the preparation of the minutes,' was on company time with no loss of, pay to. the participants. 20 DECISIONS OF NATIONAL LABOR RELATIO N S BOARD The employee representatives occasionally met by themselves in recesses during joint conferences, and beginning about 1933 they met by themselves in local caucuses in connection with joint conferences, and in combined caucuses in connection with combined joint con- ferences . Beginning about.1934 the employee representatives met on company property during working ,hours, without loss of pay , at each plant for a short time prior to the holding of the monthly joint con- ference there; and the employee representatives of the three plants met at least quarterly in combined caucuses during working hours and without loss . of pay. Until April 23,,1937, employee representatives were notified of scheduled caucuses on company property by notices drafted in the Company's personnel office and distributed by the plant mailing system. At the Eagle Refinery, where the number of employees was rela- -tively small's the employees formed in 1934 . the Eagle Works Repre- sentation Club so that they would have a place to discuss with their representatives various matters taken up at the joint conferences. The Club met about once a month . ' It was limited to non-supervisory employees, virtually all of whom were members. It collected dues; was entirely self-supporting, and -met off company time and property. Later the same year a Bayonne Representation Club was organized along the same lines as the Eagle Club . - At the Bayway Refinery no such olitside.ametings were held during the life of the Plan, ; although one .department of the refinery, -the. Steam and Power Department, had a Club which in part served the same function but which" was limited to the interests of the members of that particular department. The elections of employee representatives were held annually during the month of April. The Company bore all election expenses and provided the. ballots and the boxes. Until 1934, elections were con- ducted jointly by company representatives and tellers selected by the employee representatives . The- employees in each division - were can- vassed for their votes on the . job during working hoiirs. About -1933 the Company turned the conduct of the'elections over to the employee representatives... The elections , however, continued to be conducted during working hours, and substantially-in the salve manner as before, with the Company continuing to pay all the expenses thereof, includ- ing paying the tellers their regular wages. The elections held in April.. 1937 were conducted by an Election Board selected by. the employee representatives of each plant . The Company , however, paid for the printing of the election rules and the ballots, and for the time of the tellers spent in tabulating the ballots in the respective personnel offices. s The number of eligible wage-earner employees at the Eagle Refinery dropped from 1,191 in 1918 to 461 in 1937. After the organization of the Associations in 1937 the Eagle Refinery was reorganized as the Eagle Division of the -Bayonne Refinery and was placed under the supervision of the superintendent of the latter refinery. STANDARD OIL COMPANY 21 The entire expense of administration of the Plan was borne by .the Company, which also furnished supplies and stenographic services to the employee representatives . Employee representatives not only met or conferred with management on representation matters without.loss of pay, but were permitted to meet , their constituents on the job. and to, attend to other representation duties, also without loss of pay. Moreover, when they attended joint conferences they were either not required to work their shifts that day or they were excused from working the remainder of the shift after the conference had concluded. If they attended a conference on one of their days off they were given another , day off in lieu thereof later. Besides the entertainment and the dinner furnished at the annual combined joint conferences,* and the transportation thereto, the representatives were furnished lunches at many joint caucuses. No change could be effected in the Plan without the consent of top management, although changes could be proposed by either the em- ployee .representatives or management. In 1934 the Company pro= posed to each group that an arbitration clause be included in the Plan. This was. accepted . at Bayway, but was rejected at .the other'-two refineries. In 1927, as found above, title to and the operation of the New Jersey Works was transferred by the parent company to the Delaware Com- pany. Thereupon, the Delaware Company by resolution ratified the labor policies of'the parent company and continued the same, including the Plan , in effect. B. Administration of the Plan and other events=1935 to April 12,1937 The- ilnpending passage of the National Labor Relations Bill in 1935 caused serious concern among company executives and employee rep- resentatives, ' At 'the annual combined joint conference of .April 30, 1935, over .which Carringer presided , C. E. Shaw; assistant -head of the Industrial Relations Department of the parent company, stated 'The respondents' officials met with most frequently in the events 'to be described, and who held these offices through.1937 and thereafter (some of them were promoted to more responsible positions after 1937) are as follows : In the parent company : Frank W. Pierce,' executive assistant to the president ; and head of the Industrial Relations Department. In. the Delaware Company: Offices in New York: Frank W. Abrams, president ; Chester F. Smith, vice president ; J. R. Carringer, assistant general manager of manufacturing operations ; Ralph L. Mason, head of the Industrial Relations Department; Owen A. Humphrey, Coordinator of.Indus- trial Relations (Humphrey is under Mason, and divides his time between the New York office and the New Jersey Works). New Jersey Works: George H. Mettam, general manager ; Dr. M. R. Meacham, superin- tendent Bayway Refinery ; S. J. Tydeman, superintendent Bayonne Refinery ; W. A. Eberle, superintendent Eagle Refinery ;'John. Burr, personnel manager at Bayway; Milton C, Hagen, personnel manager at Bayonne. 22 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD that if the Bill became law the Plan would either "have to go" or that it would be very difficult to operate it under the Act without revisions, although it "might be able to continue." During the meeting both Shaw and Carringer praised the Plan' highly, and at the conclusion of the meeting the employee representatives voted to meet with Shaw the next day so that-the employee representatives could decide what action to take. In consequence, the employee representatives shortly circulated a petition in the refineries directed to members of Congress, calling for defeat of the Bill. The Company was aware of this activity and approved of it. At a joint conference held at the Bayway Refinery on July 11, 1935, following the passage of the Act, a letter dated June 28, 1935, from Abrams, president of the Delaware Company, to Vice-President Smith was read. This letter said in substance that 'a statement of the Com- pany's position was desirable in view of legislative developments con- cerning the Bill; that Smith should "pass along" the Company's position; which was "to deal with the employees in any way they desire," but'that the Compa.n•y preferred to deal' through' the Plan. The letter concluded as follows : "In summation, please advise your people that regardless-of whether or not the Wagner Bill becomes law, we will maintain the Industrial Representation Plan, as we have in the past seventeen years, so long as any of our employees desire to deal with the Company through this *medium?' -At-a combined caucus of 'the employee representatives held at the Bayway Refinery on September 25, 1936, the representatives went on record as being 100 percent behind the. Plan, and appointed a committee -to draft a reply to certain newspapers. which'ha'd'printed articles indi- cating that the Plan might-affiliate -with -the C. I. 0.; this, the repre- sentatives; felt, -was- derogatory to the Plan. On `Septernher • 28-- the committee drafted a letter to the newspapers wherein the Plan was highly praised and wherein.it was indicated that it would continue by itself. Mimeographed statements of what took place at the meeting of the 25th were-prepared on company equipment to distribute to em- ployees: This was done with the knowledge of company officials and during working hours. ; The considerable C. I. O. activity occurring' about this' time through- out_the country,disturbed the . employee. representatives. In December 1936, John L. Lewis, then head of that organization, invited. a number of employee representatives .o, the New Jersey Works to meet with him to discuss possible unionization of the oil industry. Approximately six of them weht to Washington on January 23, 1937, and conferred with Lewis. Their primary purpose was to obtain information; and the resu'lt.of the conference with Lewis was that they were unimpressed -with the-idea of affiliating with the C. I. 0. In an article in The Bayonne Times of January 25, 1937, Lewis was quoted as saying that STANDARD OIL : COMPANY 23 the Act would "outlaw company unions in the oil industry, and the oil workers must prepare in the only way they have-jjarticipation in and with the C. I: 0." The trip to Washington considerably incensed other representatives and employees, with the result that those who had made the trip took pains to point out that they had gone to Washington merely as indi- viduals and not, as employee representatives , and for the purpose of getting information rather than with any thought of favoring affilia- tion with the C. I. O. At a combined joint conference held on Jan- nary 29, Thomas W. McMillan, combined chairman of the employee- representa.tives, requested the management's permission to draft a newspaper release to counteract publicity which had appeared in the newspapers . ' He said that the purpose of the -trip to Washington had- been ' merely educational , that the -representatives ' had gone on record at a caucus as being 100 percent back of the Plan, that the representa- tives -believed in employee representation, and that they wished to express this sentiment through 'the newspapers . • Another represents= tive indicated 'concern as to the effect of the Act upon the Plan. Gen- eral Manager Mettam,- who presided at the conference , replied that the "best legal talent in the country" was 'of the opinion that the Act would be upset , but that'even if the Act were upheld , other forms of collective bargaining could not compare with the Plan. He said that the Plan had been in effect 19 years, that'the Company paid top wages, had a 36-hour week and the best working conditions in the country, and that Senator -Wagner had been quoted as `saying that the'Act was never intended to upset ' effective ; employee representation plans. Mettam concluded by saying that the employees need 'not worry about the continuance of the Plan and that he could give them "real assurance so far as -it is humanly possible to:do' so, that ,the representation plan will continue." McMillan responded that Mettam 's remarks had 'been "very reassuring" and that he hoped Mettam's statement would be car- ried 'fully'in the minutes 10 so that the employees could be "reassured." On the same day or the following day, at a combined caucus of employee representatives held at the Bayway plant during working hours, the representatives agreed that , various newspaper articles-about the Washington conference were "contrary to 'fact" and appointed a committee of officers from the three plants ' to draft a reply. ',The reply was mimeographed on a company duplicating machine, on com- pany stationery, and was distributed , all with the knowledge of 'the' Company. The statement reiterated- that the trip had been made to Washington by employee representatives in their individual capaci- ties "for the .purpose of securing information ", that the representatives at a combined caucus "again went on record unanimously in-declaration 10 It was. Minutes of combined joint conferences and joint conferences, both of the Plan and the Associations, are in evidence. 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of their faith in the present employee representation plan"; and that it was. "their firm feeling that their Representation. Plan offers the workers the best form of collective bargaining." Copies of this state- ment accordingly appeared in the local newspapers and thus became generally known among the employees." Nor was the activity of the C. I. 0. without some reaction in the. official publications of the Company.. Thus, in the. February 1937 issue-of The Lamp, official publication of the parent company which was.generally distributed to the employees of the New Jersey Works, there appeared. an editorial entitled "Industrial Wars Without a Vic- tory." Therein it was stated that reversion was sometimes made "to the barbaric test of victory by. intimidation"; that the law protected "professional disturbers" some of whom "are in the United States illegally"; that while "not a perfect device' .... it means an economic .loss of nationwide concern' if strife is .to be substituted now for peaceful negotiation"; that "There are fields for both" industrial representation and.labor unions; and that "Good results can be ob- tained -by collective bargaining through an agency which is the volun- tary choice of the employees, if their selected representatives and those. speaking. for management., show an honest intent at arriving at a fair middle ground." The editorial, concluded that where "em- ployees have organized (among themselves) for collective bargain- . ,ing• according to their own ideas, without outside persuasion or in- timidation, they.have a perfect machine for avoiding labor disputes. .That is the fundamental idea of democracy in government." In March. 1937, the C. I.. 0. announced that on April 5 it would begin an organizational drive in the oil industry in New Jersey. This perturbed the employee representatives, and" at a combined caucus held at the Baywayplant on March 12, 1937, there was considerable discussion _of the subject. ' Although it was-not customary for man- agement representatives to attend employee representative caucuses, 'McMillan,invited:Mettam to attend the caucus, testifying that;he did so because the representatives wanted assurances that the Company ".would stand behind the Plan ; that at .that time "there were numerous plants"that'were going over to organized.labor, and that. also. had.some bearing. on the. fear that had', been created---in the minds of some .of the representatives." Mettam testified that there was some question in his mind; as to whether it was proper to attend, but after discussing it with other members of the management he ^ decided that it was proper. "and probably desirable from: an employee's standpoint." He ;'.It was stipulated at the hearing that the following local newspapers were generally and widely read among the employees in the respective plants : the Elizabeth Daily Journal at Bayway (the Bayway plant is in Linden which'is"contiguous to Elizabeth), The Bayonne Times at Bayonne, and the Newark Ledger at Eagie. . STANDARD OIL COMPANY 25 attended, together with Ralph L. Mason, head of the Delaware Com- pany's Industrial Relations Department, and Owen A. Humphrey, personnel coordinator. At this caucus Mettam was told by the employee representatives that they wanted him to "assure" them as to. what the Company's atti- tude would be in case the Act was declared constitutional. Mettam again referred to the opinion of "the best legal talent," and to. state- ments which he said were attributed to.John L. Lewis and to Senator Wagner. There was also some discussion about incidents occurring in connection with current strikes in. various parts of the country in- volving the C. I. O. As to this, Mettam testified : "I told them that the company was ready to go as far as it legally could, at their request, to protect them from intimidation . I said. that there was a lot being published in newspapers about the communistic element trying to take over the C. I. O. •, that. they . might come down and try to take over any organization that their own men had; that you' could ilot always tell them when you saw them; that they sort of -hid their light under a bushel ..." Mettam also said that he was 10Q percent behind the Industrial Representation Plan. Subsequently, in March 1937, the Company granted .the employees a 10-cent per hour raise. in wages. The purpose behind the granting of this .wage'increase is in dispute. Mettam presided at a combined joint conference on March 19, where the employee representatives asked for -a 10-cent per hour: increase, basing the request, according to; the minutes and to Mettam's admissions at the hearing, on two grounds : (1) that. a refinery-,of another company in the, community had given such an increase, and (2) that the granting of a similar raise would be helpful to the employee representatives in beating the contemplated C. I. O: drive. In response, the company representatives first.,took the position 'that' the fact that the neighboring refinery, which had relatively few employees, had given the increase did not establish that the rate paid by that company was the "prevailing rate," which was the rate the Company had agreed to meet, according to the provisions of the Plan; and that a "prevailing rate" meant an average rate rather than a top rate. Then followed considerable discussion during which the Plan was' praised and the C. 1. 0. compared unfavorably with it. - According, to the verbatim minutes of the March 19 conference, Haney, one of the employee representatives, said that at the caucus on March 12 Mason and Humphrey had told the representatives "to ,go back" to their plants "and sell representation," and that the repre- sentatives had done so. The minutes indicate that this statement by Haney on 'March 19 was undenied. Mettam, Mason, and Humphrey denied at the hearing that the representatives were told at the March 12 caucus that they should go back to their plants and sell representa- tion. As a matter of fact, none of the company officials had made 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD. these statements at ,the. March 12 caucus. But they had .praised the Plan highly and had indicated clearly that the Company was opposed to the C. I. 0. Thus, although Haney may have overstated himself at the -combined joint conference of March 19, it is a fair .inference that he gathered the not. unreasonable impression at the March 12 caucus that his words on the 19th indicate.- Furthermore, the failure to deny. the: statement on the 19th was, itself an indication that the Company was-willing to have the employee representatives understand - that they should continue to "sell representation." That the employee representatives had done so, and continued to do so during the next few crucial weeks, .is clear from the evidence, and. hardly disputed.12 The condensed Version ,of the minutes of the March 19 combined joint conference, which. was. distributed to the employees, made no reference to Haney's. remark about selling' representation, but did contain Haney's statement that 'at the March 12 caucus-the. company repre- sentatives had said. that the Company "would back the Plan 'and that the 'employee representatives could assure their constituents .of_ this.". According to the minutes and the 'testimony at the hearing, much of the talk at the March 19 conference, -so. far as it =bore upon the Plan-and-the C. I. 0., was similar to that which-had taken'-place on Marchh12. Mettam referred to the "threat or promise" of the C. I. 0.; to, start a drive on the oil industry in New Jersey on April 5. He emphasized that there would be no discrimination against anyone because of his membership or affiliation with any labor organization, but' added that it 'was the Company's experience since 1918 that the Plan was the best' method of collective bargaining,' emphasizing that since the' Plan had been in operation there had been no -interruption of employment as a result of labor disputes. He added that the. Com- pang. was willing; :on request, 'to' protect the employees -so far as it legally -could" from intimidation in connection with' the proposed C.'-I. 0. drive. He concluded by referring to the requested wage in- crease, said that the Company would do "the right thing,"" that he wouldtry to have an answer on the question the- following week; and that "you fellows will have it." The effect of Mettarn's remarks is indicated by the ,esponse of •McMillan, who said that _the-'representa- fives =N^ere particularly pleased by what Mettam had `said regarding `'outside organizations." In reply, Mettam indicated that a'coinpari- son might be made between wages paid at the New Jersey Works and other oil plants which were 100 percent unionized. On March 24, 5 days later, there was another combined joint conference, at' which' the Company announced that it had granted a 10-cent per hour increase to become effective April 1. _ 12 Compare the remarks of Representative Brennan made at the combined joint conference of September 15, 1937, referred to infra. STANDARD "OIL- COMPANY. 27. The Company argues that the- increase was granted solely in order io comply with its policy of meeting at. least the prevailing rate in the community , and not in order to counteract the proposed C. I. O. drive. The evidence does not support the Company in its contention. Its representatives argued on March'19 that the "prevailing rate" did not necessarily mean the top rate; that the increase in question had been' .granted by a, competitor which had very few employees ; that; in short, the prevailing rate was the average rate in the community . There was some testimony that there had been , fora short time prior to March 19, and between March 19 and 24, some investigation by the Company as to wage rates , and that by March 24 the Company had come to the conclusion in substance that the prevailing rate had been so affected by the increase at the competing plant and ' other factors that it would grant the requested increase. This-evidence is not convincing. We find, as did the Trial Examiner, that at least one materially moti- vat,ing factor in the granting of the raise was the Company 's desire to offset the planned C. I. O. drive. That such an increase in wages would tend to have that effect, and to cause the employees to continue to prefer the Plan over the .C: I. O., is'.clear.13:. On March 20, the March issue of the Esso Refner, official publica- tion. of the Delaware Company , was distributed to. the employees at the New Jersey Works: ' This issue contained an 'article entitled "Employee Representation and Collective Bargaining," which was highly laudatory of the Plan. The subhead, "How the - Plan' was Developed, the W Tay it , Works, What Iit Has Accomplished'. .." sufficiently illustrates the matter covered. The' annual election for the positions, of employee representatives was held from April 5 to 9 , 1937. As set forth above, this ' election was conducted in the same fashion as in the 'preceding several years; the Company paying for all election: expenses ,' and the elections being conducted in. the plant during working hours. Election boards appointed by the employee representatives had charge of the elec tions. Of the total of. 56 representatives elected, ' 40 were reelected and 16wvere-ne«.ly elected, 4 of the 16 representing . an. increase in the number of-representatives . A great many of the representatives reelected had held. these 'positions for se eral years. . Ofthe 6,656 employees eligible to vote 14 a total of 6,574 voted , representing 98:7 percent of the total eligibles, --there being substantially ,. no variation at the 3, plants in this respect. 18 Cf. F. W. Woolworth Co. v. N. L. R. B.,'121 F. (2d) 658 (C. C. A: 2) ; N. L. If. B. v: W. A. Jones Foundry and Machine Company, 123 F. (2d).552 (C. C. A. 7) ; The M. H; Ritz, welter. Company v. N. L. If, B.,_114 F. (2d) _432 (C. C. A. 7). 24 At Bayway 3,233 ; at Bayonne 2,962 ; at Eagle 461. 28 DECISIONS ,OF NATIONAL LABOR RELATIONS BOARD C. Events- from April 12 to V, 193715 Oil -the morning of April 12, 1937, the respective plant superintend- ents or personnel heads issued notices to the employee representatives • of each plant, that meetings of the representatives would be held on April 14 for the purpose of electing chairmen and secretaries of their respective groups. While these notices were issued during the morn- ing of April. 12, before the Supreme Court decisions sustaining the Act 18 were announced-that clay, the Company convened the representa- tives to meet on company property on the 14th, paid them their regu-. lar wages for the time so spent, and knew that at least one purpose of these meetings was to elect officers. There was considerable uncertainty during the 10-day period fol- lowing, the Supreme Court decisions of April 12 among members of -management, employee representatives, and various employees, as to .the effect of the decisions on the Plan.' The uncertainty of the representatives and-the,employees was not dispelled by. the Company's distributing copies of the Act to the employee representatives on April 15.18 Nor was this uncertainty dispelled by answers to requests which representatives and. other employees made of company officials for. a statement of the Company's position. Thus, John Burr, head of the personnel department at l3ayway, when questioned at various times, between April 12 and 23 by employee. representatives and others as to what the Company's position was, replied that he did not know, and that their guess was as good as his. In none of these conversations were the representatives told that the Plan was illegal or that its.con- tinuance would violate the Act. The furthest these officials went was to say. in substance that until the Company's,-position was offijcially announced the employee representatives could not deal as-such with the Company on "major questions," but that, they could, act for em- 15 The employee representatives referred to most often hereinafter, and their positions as Plan-officers, %are as follows: Thomas W. McMillan, chairman, combined employee repre- sentatives ; Charles J.. Coyle, combined secretary and Eagle secretary ; Frank Spears, Bay- way chairman ; Thomas J. Brennan , Bayway secretary ; Charles Mallon, Bayonne chairman ; Clement Hurley , Bayonne secretary ; and James Kelly, Eagle chairman . As will be described hereinafter, they continued in these capacities when the Associations were set up, along with representatives Edward A. McGann and Edward J. Rodgers , who became treasurers 'at Bayway and Bayonne, respectively. Charles C. Jones and Herbert Eckert were also extremely active representatives . Most of these men had been representatives for many years, and were among the most active in the transition from the Plan to the Associations. 16 N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U. S. 1;. and companion cases. 14 Mettam , general manager of the New Jersey works, at first testified that he thought it was the Company's opinion that the Act would be held unconstitutional and also that the' Plan did not, in any event, violate it. He later. testified, however, that discusisons with: company executives were to the effect that " Since the plan had been established by the company , it was considered as not meeting the requirements of the . . . -Act." 18 Copies were also distributed , to the officially appointed representatives of management at joint conferences , but none were distributed to-the employees as a whole. STANDARD OIL COMPANY 29 ployees on individual grievances; and this, in fact, certain employee representatives did.rs _ The uncertainty among the employee representatives as to the effect of the Supreme Court decisions caused some differences of opinion -among them. As Representative Brennan testified, some- of. there thought the entire Plan was illegal, while others thought the Plan could continue if. revisions were made. According 'to Mettam, Mc- Millan, and . others, the employee representatives understood; as did the employees generally, .that the management of the, Company was -desirous that the. Plan should continue to function and that the. Corn- was 100 percent behind it. But the representatives were anxious to receive, front .the Company an official reiteration of this position so that they and the employees as a whole could be "reassured." Hence', according to ^Mettam 's own testimony,. several employee representa= tives kept "prodding" Mettam to obtain an official statement of the Company's position . Mettam, in turn, conferred in New Yorke with Abrams, Carringer , Mason , and Pierce who was head of the Industrial Relations Department of the parent company. The employee representatives of the three plants did not, however, wait . for an official announcement from the -Company but, pending the receipt thereof, they took some action of their own . The officers of the three..groups of employee representatives had read in .the news- papers of April 16 that Secretary of Labor-Perkins planned to hold a conference it `«Tashington to discuss the enforcement of the -Act fol- :lowing the Supreme Court decisions, and that W. C. Teagle, president, of the parent company, was one of those invited to attend. As a re- sult, the three local chairmen , Spears of Bayway, Mallon of Bayonne, and Kelly ,of Eagle, and the combined chairman and secretary, Mc- Millan of Bayway and Coyle of Eagle , respectively, met at the Bayonne plant on the morning of April 16 during working hours, re- ceiving their regular wages for the day , and drafted a letter- to Mettam setting forth their views.'' Their letter informed Mettam that they.vwere writing "on behalf of the- 7,000 wage earners in the three New-Jersey Works, " that "many people may confuse our Plan with solve of th'e"other employee representation plans which have not functioned so successfully," that the employees "are unanimous in feeling that they should be able to carry on with our Plan as a means of collective bargaining," that "we wish to fight to the last ditch. for the continuation of our Representation Plan . . . wish to take the offense in this matter and make known our sentiments to-those who 10 What Burr told the individual employee representatives and employees who spoke to him, in substance was what Mettam and one or more of the plant superintendents and other personnel department heads said. Other than this there was no attempt , between April 12 and 23 , to communicate .to the employees generally what the Company 's position was as to the effect of the decisions on the Plan. . 20 They had the letter mimeographed at the plant so that copies could be given to all the employee representatives . It was apparently not distributed to all the employees. 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD may have .some voice in the discussion of this entire _ question." Mc- Millan, who took the principal part-in the drafting of this letter, testi fled that it had been sent to Met-tam rather than to Secretary of Labor Perkins because the representatives were simply following -the custom they had-followed previously, and that they "wanted everybody con- nected with the management and everybody in the plant to know just how we did feel." . The letter was immediately given to Mettam who sent a copy -to Abrams.. On April 20 Abrams sent a reply to Mettam in which he stated that Teagle wanted the men to understand that he was going to Washington solely as an individual , and not as a spokesman for either the employees or the Company: The letter concluded that, the Company hoped that during the next few days-the question would be clarified so that company representatives could meet with the employee representatives and discuss the matter, and that in the meantime if the employee representatives still desired to request a conference with the Secretary of Labor,.they' might -themselves write to the Secretary. A copy of ,this letter was handed -by Mettam to the cha-irmen of the respective employee groups and to the combined chairmen and the combined secretary. No letter was ever sent to the Secretary of Labor. The, evening: ofi April 16, .elriployee.representatives met off-company property and on-their own time and appointed a committee of_which Frank Spears acted as. chairman, for the purpose, so Spears testified, -"to get some information -on formation of an organization -in-, case we were out we should be."prepared." 21. During this entire period, many of: the employee. representatives had spoken to. numerous employees in the respective refineries as to the situation. According to the testimony of the employee representatives who testified:as .to these conversations, which we credit to a11is extent, the employees who spoke to said repre- sentatives told them that since the representatives had been elected in the April election, it was:up to them to^"carry on as nearly as possible" like the Plan.22 . It is clear that throughout this entire-period to April 22, neither the representatives nor the employees as a whole-under- stood or took the position th at the Plan was, ended or - could not con- tinue, although many of them were of the opinion that certain revi- sions had to be made therein, mainly in connection with the elimina- tion of financial or similar support by the Company. By..April 22, 1937, as.-a result of conferences in which Abrams, Mason, Carringer,.Pierce, and Mettam participate(], and after consul- 21The committee procured information as to . other employee associations, particularly with reference to an employee representation plan at the New Jersey Bell Telephone Com- pany , where they discovered that a check-off of'dues was in 'effect. ' The letter of April 16 which they employee representativeofcers sent to Mettain stated that "a recent canvass by the Elected Representatives of their constituents - indicated that the employees were unanimous in feeling that they should be able.to carry on with our Plan as a means of collective bargaining." Actually there was no canvass. STANDARD. OIL COMPANY 31 tation with the Company's legal department, a notice dated April 22, 1937, was drafted which, it was agreed by them, would be made known by the Company to the local 'chairmen of the employee representatives, and to their combined chairman and combined secretary. The complete text of the notice of April 22 is as follows : APRU 2211937. Numerous requests -have been received from the employees as to the effect which the Supreme Court decision on the Wagner Act may have on the representation plan. Collective bargaining now established by law is the process by which a majority of the employees of an appropriate unit elect representatives to meet with the management to discuss and settle all matters affecting wages, hours, and working conditions. The Act 'thus recognizes the principle of collective bargaining which has been followed voluntarily for the past twenty years by our employees and management. The fact that during this period there have been no labor disturbances in our company's operations indicates the advantages of collective bargaining to both employee and. management. . The Act protects the rights of employees to bargain collectively - with their employer without domination, interference, coercion or restraint on the part of. the employer. If the representatives are the free choice of a majority of the employees,. a representation plan, which is not "company, dominated" or. financially supported, fulfills the requirements of the Wagner Act. Neither is there anything in .this Act to cause the Company to change its long- established- policy. of not discriminating against any,ei ployee be- cause of membership or non-membership in any. church, society; fraternity, or union. In view of the Supreme Court decision, the Company will : 1. Bargain collectively with any group representing a majority of the employees in an appropriate unit a'-lid will also consider grievances presented by individual employees or. groups of em- ployees. 2. Pay employees only for the time spent during working hours in conference with the management. The Act will preclude the Company from paying the expenses of elections and other like costs. While the management's interest in the welfare of its personnel remains unchanged, the law now requires, if the employees desire a collective bargaining agency, that it be developed and established by themselves. It isthe earnest hope of the management that the friendly relations that now exist may continue under whatever procedure the employees may adopt. 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. From the "Statement o l Policy" to the- Associations : April 03 to May 28, 1937 On the morning of April 23 a meeting was held in the office of.Dr.. M. R. Meacham', Bayway superintendent, which lasted about an hour and a half. Those present for management were Abrams, Smith, 'Car- ringer, Mettai i Mason, Humphrey, and Meacham. The employee representatives present were Plan Officers McMillan and Coyle, chair- man man and se'cretary'respectively'of the combined group of employee rep resentatives, and Spears, Mallon, and Kelly, chairmen respectively of the BaywayI'Bayollne,- and Eagle-in At 'the beginning of -the meeting Abrams' read the Statement of Policy. 'Then followed some discussion concerning which "there is cou- siderable:disagreement. It-seems-clear, on the whole, and we find- that .the 'einployee representatives present were told that the Phan violated the Act and that the ' Company' could no longer go - on under it as it was then 'constituted'; also, in substance, that it would be entirely up to the employees to decide for themselves what they wanted to do. Several of the employee representatives and Mason, Mettam, and Humphrey testified in substance that Abrams said that the Plan was "out" and that the-Company could no longer deal with the employee representa- tives under it. What was discussed thereafter had to do mainly"with "any changes that might-be necessary", in the Industrial -.1epresenta tiori PI anlin order that it might conform to the Act.23 McMillan; who, accordiiig to his own testimony, did most of the talking for the, repre- sentatives, said that from his contact with the men he knew that they wanted`•to^ set 'up an organization which under the law would permit them'to c,rryon under the same form of bargaining which had-proved so successful for the past 20 years. Abrams said that the Company was obliged to recognize Zany .organization the men chose, but that it could no longer continue financial support Would not be able to pay for minutes.of joint conferences, would not be able to pay for the time of the employee representatives on representation work except for time spent'iii conferring with management, and would not be able to provide certain other forms of support, the details of which were then dis- cussed. Certain of the employee representatives' and company officials testified that Abrams indicated at the meeting that the Plan was, as Humphrey put it in his testimony, "finished, or had to be disestablished, discontinued, or stopped-words to that effect." On consideration of all the evidence we agree with the Trial Examiner that the evidence does not support this testimony or the contentions of the respondents . and the Associations in this regard. What Was made clear was merely 23 It should be noted that Mettam , at the April 28 dinner meeting referred to below, said that the conversation was "about what was in the wind-any changes that might be neces- sary-where we found ourselves after the decision on.the Wagner Bill." STANDARD OIL COMPANY 33 that certain features of the Plan having to do with the contribution of various- forms of support by the Company to the Plan had to be. eliminated. It is clear in any -event.-that, regardless of what was, said by, management representatives at this meeting of April 23, the em ployee representatives present did not receive the impression that thel Plan was disestablished. Rather, the testimony on the whole supports' the conclusion and we find, as did the Trial Examiner, that the im- pression received was, as McMillan testified, that the, management would have to "withdraw" from participation in the Plan and elimi- nate financial support. While most of the representatives testified that they understood from what had been said at the April 23 meeting. that the Plan was "out," subsequent events, particularly the occur- rences of April 26, April 28, and May 19,mor.e fully refe'rred-to:here=° inafter, conflict with these assertions. The representatives had the definite impression that the elimination of financial support would remedy any legal defect that existed. in the Plan, provided only that the employees voted in favor of the change. Mettam himself testified that the representatives present "were pretty much at sea and were endeavoring to get Mr. Abrams to agree to go as -far. in financial sup- port and so on as they possibly could, and to that end they [gave] the impression that they thought then, on April 23rd," that a representa- tion plan such as they had had in the past, minus the features of company support, would be a legal one. During the discussion the employee representatives said that, in connection with the organization they proposed setting up, they desired .the .Coippany to agree to "check off" dues. The company officials suggested in substance that the point remain open pending further developments. . Nor does the testimony establish, as some of the witnesses testified, that it was made clear to the employee representatives present that the employee representatives no longer held that status. What they said at this meeting indicated that they still regarded themselves as such, and later events bear out this finding. For example, during the dis- cussion the employee representatives present asked the company officials who would pay for their time spent as representatives, whether they would be permitted to travel around the yards and in- terv-.iew.their constituents on company time, and further questions of this-type. At no time during the discussions on April 23 did the com- pasiy.officials make it plain to the employee representative officers that their status as officers or as representatives had ceased. It was agreed at the conclusion of the meeting that all the repre- sentatives would be called together at the Bayonne plant on Monday, April 26, and that someone from the management would explain the situation to them. . Abrams said that they would have to provide their own transportation to this meeting. A question was raised as to the 481039-42-vol. 43-3 34. DECISIONS OF -NATIONAL LABOR_ RELATIONS BOARD, customary -annual dinner-meeting which had been seta- prior to the. Supreme Court decisions, for April 28,.and had later been, canceled., After some discussion, Abrams said in substance that the meeting of April 28. would be held but that it was not to be regarded as a-- combined joint conference., but rather as an "informal", get-together. or "farewell dinner," and that lie would invite the elected.-representa tives and "former" management representatives as guests:24 Most of the employee representatives. from the three plants met- at the Bayonne refinery on the morning of April 26. • The. meeting, lasted from before 9 a. in. until 3: 30 or 4-: 00 in the afternoon, ;tlie:, representatives receiving their regular - pay. for the time. so spent. Humphrey was the only management representative present= He was. . in and out of tl>e meeting about four or five times, the first time giving his-version of the management's . position, and the remaining times coming in only to answer questions asked by the representatives. What occurred at this meeting is considerably disputed: Humphrey, in -his- testimony, indicated an unusual lack of recollection of what he had said to the employee representatives on. April 26, although he did say that he was. sure he said nothing that contradicted what Abrams had said on April 23. Thus, in response to a question as to whether lie' recollected saying that the jilen could carry on in the same manner as in the past with the exception of financial support from the Company, he testified that he had no clear recollection one way or the .other, although he was sure that lie had not made the statement for the reason that'it would have been contrary to what had been said on April" 23 Nor could he recall, according to his own testimony, whether he had. said that the Company wanted to carry on the Plan as in the past, or _ that the Plan could carry on with minor.changes, nor whether there was any discussion having to do with the setting up of an independent organization, the drafting of a constitution and bylaws, or the holding of a referendum. . It is the contention of the respondents that Humphrey. iN as present. at the April 26 meeting merely for the purpose of _ explaining. the management's position as indicated by Abrams at the April 23 con- ference. But it is clear that Humphrey, not content on April 26 with reading the Statement of Policy, went into considerable detail to explain what the management could and could.not do in connec- tion with the future collective-bargaining relationship between the Company and its employees. Several of the representatives. testi-. z' As will be described below, a meeting was held on the afternoon of Apr:l. 28, attended by employee representatives and management representatives, lasting over 2 hours and before the dinner began , and at which the same sort of matters were taken up and discussed as had been at former annual combined joint conferences held in conjunction with the, annual dinners. Compare the reference to the "farewell dinner" with Carringer's remarks to the employee representatives on April 28 : ". . . don't- get any idea that this is any funeral party." STANDARD - OIL COMPANY • 35 fled irr substance that what was •'said by Humphrey oil : April 26 "did not vary from what was said on April 23 except that Humphrey gave more details . But the testimony of these representatives was, inconsistent in many particulars .. Coyle,_ combined secretary of the employee representatives, took notes of what was said at this meet- ing and testified as a.witness at the hearing. According to. his ver- sion, which we find to be substantially accurate , Humphrey indicated to the representatives that they could carry on in the , same manner with the exception of financial support from the Company such as._ election expense , transportation, dinners, and meetings on' company, time; that the last thing the Company would do would be to-let the'. Plan down; th It the representatives could carry on the Plan with minor changes, but that it was up to the representatives to decide What form of collective bargaining the men wanted, and that they. need not make any changes for 2, or 3 days .25 Coyle was not the only. one who received the impression, which he testified to at the hearing, that the Plan could continue with the elimination of financial sup liort from the Company, and with minor changes , provided only that- the employees in the New - Jersey Works wished it that way. That,- in substance, was also the opinion of James Kelly, employee repre- sentative chairman from Eagle, for example. Moreover, it is clear that regardless of what Humphrey said on April 26, or what Abrams 'The respondents contend in their brief that Coyle , in his notes on the ineeting , errone- ously attributed to Humphrey certain statements to the effect that they could carry on in the same, manner without financial support or with minor changes' because Coyle "never could differentiate" between collective bargaining as exemplified by the Plan, and the Plan itself as an agency of collective bargaining. The Trial Examiner, in 'his Intermediate Report, found that Coyle, while honest, was an unsatisfactory witness in some respects ancl that his testimony indicated that at times he had difficulty on this point, but that despite this, his testimony on the whole, and other circumstances in the case, lead to the conclusion that his version of what took place, as indicated by his Dotes and his testimony, is more nearly correct than that given by other witnesses. We agree with the Trial Examiner. The testimony and exhibits in the case show-that many other employees, in addition to Coyle, had difficulty: in distinguishing,between "a rep- resentation- plan" (referring to a method of collective bargaining) and "the Representation Plan" (referring to a specific example of such method). While the distinction is a nice one, we are convinced that it was not emphasized by management representatives or -gen- erally understood by employee representatives if it be assumed that the management sought to make it. For 19 years the Plan had been the method of collective bargaining, and the employees at the New Jersey works had had no other type of representation. It is'obvious, 'therefore, that when representatives of the Company spoke to employees of "a representa- tion plan," the employees must have understood and ' interpretedItile statement to refer to the Plan. If Coyle wrote "Plan" when Humphrey meant "plan," we are inclined to believe that the other representatives also understood Humphrey to mean "Plan.," The respondents and the Associations objected to the admission of Coyle's notes into evidence, and contend that they should not be accorded any weight as evidence. We have considered the arguments they have advanced but are not persuaded. While he was not a skilled stenographer, Coyle attempted'to record the remarks made by the. speakers as accu- rately as he was able. ' Ile was the duly elected secretary of the representatives and took his notes with no view' to their being employed in future litigation. Many of the recorded remarks were corroborated by the testimony of witnesses. , In view of the understandable discrepancies and lapses of memory apparent in the testimony of the witnesses as to state- ments made more than 4 years before the bearing, Coyle's notes are entitled to considerable weight. The same reasoning, of course, applies to numerous .,her notes and minutes received in evidence. 36 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD had said on April 23, most of the employee representatives enter- tained views as to what they could do which were contrary to the alleged position of the Company as counsel for the Company stated that position to be at , the hearing. These views were . obtained from what was said to them on April 23 by Abrams and other officials, by Humphrey on April -26, and by various company officials before those dates and thereafter.21 Significant corroboration that the impression that the employee representatives received on April 23 and 26 was as found above, appears in the circumstances surrounding the publication in The Bayonne Times of April 28 of a first-page story with a lead headline entitled "Oil Men Forming Independent Union," one of the subheads of which read, "Company Says Few Changes Are Needed to Comply with Labor Law." This article stated. in part that employee repre- sentatives wereA drafting plans "for anew organization to supplant the present employee representation system which was outlawed by" the Act; that.the management had informed the representatives on April 26 "that in view of the' Supreme Court's decision . . it would be-necessary for the men themselves to snake whatever changes they desired in the labor relations . . . They were also informed of features of the present employee representation system which will have to be eliminated"; that the representatives thereupon appointed a committee of 11 to draft a constitution to be submitted to the -workers for approval for their "independent union" which would be "closely patterned after the employee representation -system but will eliminate those-features which are objectionable in the eyes of the Wagner Act ..." The article concluded as follows : Officials of the Standard asserted that there are only a few minor changes that would.have to be made in the present em- ploye representation system under the Wagner Act provisions. These include a provision that in the future the men conduct their own balloting and that all organization expenses be paid by the men instead. of the company Mettam testified that either the editor of the Esso Refiner, the plant paper, or the local personnel managers customarily gave news releases to the local press, but that he'was unable to find out who had released the. article in question to The Bayonne Times, the only local newspaper published in Bayonne. He testified further that he The respondents argue in their brief that "The men knew the Plan as an agency was out but they had had collective bargaining so long that it was hard for them to realize that the Company would not deal with them under the present set-up." This , we are convinced, was not the true state of affairs . While the representatives may have realized that the Company would not deal with them "under the present set-up," they were of the opinion, at the same time, that the Plan as it then existed could continue if company support were withdrawn. 'STANDARD OIL COMPANY - - 37 telephoned the , publisher of The Bayonne Times and complained :about publication of the article. The publisher suggested that the .Company might, if it wanted to, draft a correction which the news- paper would be glad to print., Mettam, according to his own testi- mony, replied in substance that 'he did not care to do this, and the matter was dropped. Since the evidence shows that the employee representative officers, as well as the editor of the Esso Re fi?ier and the local personnel managers, were active in` giving stories to the newspapers, the inference is justified, and we affirm the Trial Exam- iner's finding, that the story was given either. by a company repre- sentative or by an employee representative. The article, of course, . clearly corroborates the finding that the employee representatives received the impression on April 23 ,and 26 which has been stated above '' More significant, perhaps, is the fact that with knowledge of the publication of the article, which Mettam testified was con- trary to the Company's position, be consented to allow the article to remain uncorrected although offered an opportunity to correct it by the publisher. The conclusion is justified, and we find, that the general manager of the New Jersey Works was content to allow this newspaper article to be circulated and read widely by the employees so that they would receive an impression which the Company now contends is a false one, but, which, we are convinced, was exactly the impression that the Company intended the employee representatives and the employees generally to receive. Indeed, near the close of the April 26 meeting, upon an almost unanimous vote, the employee representatives voted to appoint a com- mittee to, conduct, a- referendum among the employees as to whether they were satisfied to retain the "present plan"'until May 1938. It is significant that this proposal was adopted, and the language of the 'referendum agreed upon, after Humphrey had spoken, in detail at this meeting and had used language which the Company now con- tends was equivalent to a notice of disestablishment of the Plan. A connnittee of 11 representatives, froiri all 3 plants, was selected to carry out this referendum. When asked why it was necessary to form another organization at all, if it was the opinion of the employee representatives that the elimina- tion of financial support would be sufficient, Combined Secretary Coyle testified that -since the employees were now required to furnish their own financial support another -organization had to be formed and a constitution and bylaws adopted to provide for such support. This testimony, was not co:itradicted at the hearing and is supported by The article was not received in evidence to indicate that what was attributed to the Company therein was, by the more publication , necessarily true. `38 DECISIONS OF':NATIONAL LABOR " RELATIONS BOARD other circumstances. 'We,are"convinced-and find, as did the Trial Ex-. aminer, that the drafting of the constitution and bylaws and the adop- tion' of a new name were regarded as -merely formal requisites, and -that this was done by the officers and representatives of the Plan. Much of the meeting'of April' 26 consisted of discussions among the employee representatives of the points they intended taking up with repesentatives of management at the "informal" dinner-meeting to be "held on April 28. Humphrey testified that he presumed that these -discussions among the representatives, held while he was absent during the afternoon of April 26, were with reference to what questions might ,be raised by the employee representatives at the April 28 meeting as to wages, hours, and working conditions. He offered no adequate expla- nation as to why the employee representatives should discuss such matters on either the 26th or the 28t1i, or why the Company should permit them to do so on company time 'and property on the 26th, in view of the fact that the employee representatives were, allegedly, no longer such at that time. There was a noon recess between the morning and afternoon sessions of the April 26 caucus, and it was then that Harry Field, counsel for the Bayonne Association in this proceeding, first entered the picture. Employee Representative Jones met Field during the noon hour and brought him to the conference room, where six or seven representatives were present. Field was, and still is, an hourly rate wage earner, a lead'burner, at the Bayonne plant. He had studied law at night while working in the refinery and was admitted to the New Jersey bar in 1935, since which time he has taken a certain amount of time off froth the plant without pay during working hours in order to handle legal matters. He has never acted in a legal capacity for the- Company. Jones suggested, and the men present accepted, Field as their attorney. McMillan told Field on April 26 that in his estimation they were going to have to draw up a constitution and bylaws for an association. Field suggested that they come to his office and that he would discuss it with, then there. They said they would come the following night.28 Some members of the committee appointed oil April 26 to draft a ballot,,and perhaps some non-members. (seven or eight men in all) met in Field's office in Bayonne on the night of April 27. Field advised them to draft a constitution and-bylaws before they conducted a refer- endum.29 The committee decided to report his recommendation to the entire group of representatives and asked Field to cove to a caucus 28 Beginning with September 1937 and for some time thereafter Field was paid for his services as counsel for the Associations. For his services up to September 1937 he made no charge and received no compensation. - 21 The committee had intended to conduct the referendum as indicated, an affirmative vote to be regarded by them as a ratification of their status as employee, representatives, and thereafter to prepare the constitution. and bylaws. STANDARD' -OIL COMPANY -39 --which they had arranged . for the next day to state his views. There. was also some discussion in Field's office as to the language of the -referendum, and it was agreed in 'substance that thereunder the -em- ployees would;be-asked whether they were satisfied to go along with the present representation plan , without financial support from the Company.30 The employee representatives were let off from work about 11 - o'clock on the morning of April 28, which was the usual time in past .years in connection with the annual combined joint conferences and dinners . Prior, to the meeting with management at the Newark Athletic Club that afternoon , however, the employee representatives of the three refineries met in a caucus "of their own at the Club. -Combined Chairman McMillan there reported what had taken place in Field's office- the night before. Combined Secretary -Coyle took notes.on what occurred at this caucus , and. these notes indicate, with substantial accuracy what took place: Field suggested the drafting of bylaws to be submitted to the employees for their approval or disapproval. - That the employee representatives still regarded them- selves as acting as such is -plain from what was said at the meeting. -Thus , Frank Spears, chairman at Bayway, said, according to Coyle's notes,32 "'As long as the Co. will recognize us we are still representa- -tives_as there is no others to represent the men now." Brennan said that the representative body was "still legal ." In response to a question from another employee representative , Field stated that- the representatives could continue to function ' as. such "if no one questioned it or raised it complaint." While Representative Eckert remarked that "the men in the plant thinks that the present plan is out," Spears said that the "Purpose (was) to save this plan-in the right way" and ". .. the Co . will recognize us," "while Representa- -tive Hedley said that they could function "as is '? and get out a ballot "stating the minor changes . as soon as possible." Eckert said that--the. proposed bylaws "would'be about the same, with changes pointed out," and Brennan said that the -representatives "can carry on until Ave change our organization." During the discussion, either Field or one of the representatives said that an opportunity was pre- sented "for us to take the necessary steps to improve if possible our representation plan. " The representatives finally agreed to Field's 11 The notes which Combined Secretary Coyle kept of the meeting in Field's office are in evidence. They indicate that the elimination of financial support was regarded as one of the "necessary changes to comply with the Wagner Act." A comparison of the language of the proposed referendum with the letter subsequently sent to the employees under (late of May 19, 1937, accompanying the "referendum" ballot, set'out hereinafter, is significant. 81 The respondents object to the use of these notes . See footnote 25, supra, respecting Coyle's notes of the April 26 caucus. - 32 Misspellings are corrected in the quotations which follow. - . - '40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suggestion that- a bylaws committee be set up to prepare a consti- 'tution and bylaws.33 Following the caucus of the employee representatives, a meeting between the employee representatives and representatives of manage- ment, including parent company officials, was held,, lasting from 3: 20 to 5: 40 p. In. Included amon" the company officials present were Z, I Abrams, Smith, Ca:rringes, Mason, Mettam; the three plant super- intendents, and others. Pierce, head of the Industrial Relations Department of the parent company, was also present after 4 p. m. .Metta.m presided. A- verbatim stenographic account'"of what was said is in evidence.34 After calling the meeting to order, Mettam asked the "newly elected representatives" to stand up to be introduced. They did so. Repre- sentative Jones thereupon asked "How about the company represen- tatives?", to which Mettam responded that there were none but that the "people who would usually be here are here." Mettam then referred to the April 23 meeting, stating that the company officials there present had. "talked somewhat about what was in the wind- any changes that might be necessary-where we found ourselves after the Supreme Court decision"; that Abrams had there read a state- ment setting forth the Company's position; and that he (Mettam) had copies of that statement which he was going to read and dis- tribute to 'those present. The "Statement of Policy" was read' and distributed. Representative Mallon then said that he did not under- stand Abrams to say ".that after Wednesday [April 28] we would be on our own." Mettam replied that Abrams had said "that between then and Wednesday we ought to be getting ourselves where we would: be on our own." To this Mallon. said, "If we don't have the assistance of the management, I don't. thilik we, can continue the way we have .:. [it] seems to me the management is folding up on us." Mettaan replied that the "management is not folding up on .you." _ Jones said "After being together for twenty years, we don't want any separation." He then proceeded to discuss in some detail the Company's pension plan, after which Representative Eckert said: ". .. I know we are going to go on in the future in the same way n This was an entirely new committee , the old committee of 11 . going out of existence. The respondents contend in their brief that the Trial Examiner should have found that by agreeing with Field 's suggestion the representatives "sounded the death knell of any con' tinuation of the Plan as a collective bargaining agency. They thereby recognized disestab, lishment of the Plan." We. do not agree. We have found above that the drafting of the constitution and bylaws and the adoption of a new name were regarded as merely formal requisites . The later events of April 28 and thereafter indicate quite clearly to us, as set forth below, that the representatives intended to continue the Plan, in effect, with minor revisions . This they succeeded in doing. 94 At a subsequent joint conference held on lone 7, 1937 , Mettam, in referring to the minutes of the April 28 meeting , said that they had been destroyed . As a matter of fact, they had not been destroyed and they were turned over , much later , by the Company to the attorney for the Board. STANDARD OIL COMPANY 41- we always have... ." Then followed further discussion of -the pension plan. According to the verbatim account of the meeting, at this point Combined Chairman McMillan announced: "... At a meeting held with the 'representatives, we decided by a 100. percent vote to formu- late a committee: to draw up bylaws for an organization which- we hope to form and invite the men in the three refineries to join. Our intention is.to have this, committee draw up the bylaws for the delegate body, have .them agree to the bylaws as we present them to them, and then. conduct a vote among. the men in the yard asking them if they are content to follow along as ,they have followed in the past. The agreement with the Company will be the Representa- tion Plan as outline(], with whatever objectionable features which it now contains obliterated . . ." McMillan then referred to an article in the Elizabeth, Daily Journal of the previous day which had praised the Industrial Representation Plan and was derogatory to the C. I. 0. and the American Federation of Labor. "In that article," said McMillan, "they told of the advantages of employee representa- tion . . . I am glad the article was.,published ... We certainly trust that before this meeting is over, either Mr..Abrams, Mr. Smith or Mr. Carringer, if you care to do so, will give some assurance to the ,representatives of your continued interest in them as representatives of the working men in the plant." A long discussion followed as to the payment of double time for holidays, vacation plan, job-analysis sheets, minimum pay for shift workers, and other similar matters. At the conclusion of this dis- cussion, Company Vice-President Smith said : "... This has been a real Joint Conference, I think. According to the Wagner Bill we can't speak .of it as a Joint Conference, but I think it has been a real presentation of the problems you want to bring to the manage- rant." :.a Smith said that the Company was not leaving -the employee representatives "off on a limb"; that the Company "will go . just as far-as it legally.. can in carrying on our negotiations with you gentle- men." Smith then said that he was pleased to hear McMillan say that the employee representatives had agreed 100 percent "to carry on with a plan similar to what we have been working on for the past nineteen years. It wasn't a surprise to me, because I really expected it." Smith then spoke of the advantages of the Plan, and proceeded as follows: "As to just how far the management can deal with you gentlemen as the result of the Wagner Bill, I-will say that ac Thereafter, at several points throughout the meeting, similar matters were again dis- cussed in some detail by company officials and emplo'ec representatives. During one of these discussions; âfettan said that the point under consideration would be brought up at a _ Bayway joint conference later. 42 DECISIONS OF NATIONAL LABOR RELATIO\ S,:,BOARD we have: to' respect-.the Wagner Bill.. _'Of course, we intend to cooperate with you and give you our whole-hearted support. We are going just as far 'as we can.. .." Smith then read a telegram from Clarence J. Hicks, .formerly executive assistant to the president of the parent company, who had been most instrumental in the institu= tion of the Plan . in 1918., Smith referred to him as the "Daddy of the Plan." The telegram stated that Hicks was unable to attend because he was in Canada, and regretted his inability to celebrate "this twentieth anniversary." Representative Mallon then complained that top management of- ficials had assured the representatives that "regardless of what the Wagner Bill did, we were going to go on"; but that they were told on April 23 that "after Wednesday you fellows are on your own." Mal- lon added : "It. was just like that-`get the hell out' that's the way we felt." Carringer responded that he was sorry Mallon came away frolic the meeting of April 23 with the impression "that the company was going to let the employee representatives -down." He said that ".You fellows were given every assurance that we would do every- thing in our power to assist you fellows as much as we could, without sticking our necks out:. To assist you to form any organization you wanted to form to help continue industrial relations. That is.the thought'we wanted to get over to you."" Carringer added that "every one in the management wants to see industrial representation go along 'as it has for the past twenty years. But we can't take- any-steps that will let anybody point. to the negb organization as one that has been 'dominated by the company. We can help you most by doing the least, if you get what I mean, and I thinly you do. But don't get any idea that this is any funeral party, or anything of that kind. Please be' assured that we will do everything. We want to see industrial representation continue, and we think you fellows can set it up without anybody pointing to it and saying it has been coin= pany- dominated :. ." [Italics added.] Following some further discussion as to certain items of working conditions, Representative Eckert said, ".. . we are not getting away from this Representation Plan. We are going to carry on in the same way . . . We represent the men in the plant today, the same as we did yesterday . We had it for twenty years. We had a lot of fun. Let's go on again and continue on." Representative Brennan said, "Twenty years ago when Mr. Hicks came with a torch and handed it to t.he'workmen, they took it .'your vision, Mr. Mettam, five months ago was clouded and you had to drop the torch.36 Now we as Brennan had reference here to what Mettam had said in January to the employee-rep= resentatives to the effect that the Act would be held unconstitutional, but that in any event the Plan would continue as it was regardless of the Supreme Court's decision. STANDARD • OIL COMPANY 43 are going to- take up the torch. And if we take it up, please have vision enough to see what might come .in." - -Abrams then made a speech during which he said, "This, to me, is the twentieth occasion of this kind ... I don't think we have laid down the torch There has been a conscientious and sincere at- tempt to do' the right thing in this Representation Plan, by all cori- cerned .... Now we have come to the point where we have to break up housekeeping, in a sense, and pass this thing on to you gentlemen, and I just feel that there has been so much put into it, and it means so much, not only to us, but to industry at large and society in gen- eral, that this thing, which has been the closest thing to an ideal that I know of, at least, that this thing be carried on in just the way the founders would like it to be carried on .. . I would like to have had I. Hicks] here and given him the opportunity to pass to you a message of cheer and encouragement in this thing . . . We are just sold on the idea that the thing is too strong, too solid, it is too sound, for it to die. And we have given it to you gentlemen, to take it and carry on, and we are going to get along in the future just as we have in the past . . I just hope that you will get the strength and guidance to go forward with this thing, so that in our lifetime, at least, we won't see it die." [Italics added.] After the applause which followed Abrams' speech, McMillan, combined chairman of the employee representatives, responded as follows : "I think the majority of the' representatives here are fully in accord with the sentiment expressed by Mr: Abrams, 'and I think the majority have expressed their confidence in the management and in the plan." - The meeting concluded with a speech by Pierce, head of the In- dustrial Relations Department of the parent company, during which he spoke of "a revival of the faith" and said that "it is up, to us to adapt ourselves to new circumstances as they arise." He added : ."The methods change, but the.spirit and ideal carries on. I am much encouraged by the comments made here on this Plan . . . It was'a real privilege to be here at this twentieth anniversary, and.. .. I am sure I feel as deeply grateful as [Hicks] does about the knowledge that you are going to carry on." The meeting adjourned at this point and was followed by the an- nual dinner, for which a special issue of the Esso Refiner, printed about April 21, had been printed and distributed by the Company. This issue, which was in the form usually printed in connection with the-annual conference-dinners, contained, on page 1, -photographs of Mettam and of the employee representative officers, all of whom were listed by their official titles. The last page,was headed "Seating Arrangements-20th Anniversary Dinner of the Employee Represen= 44 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD fation Plafi . ." A- iesuiu of'the dinner meeting appeared in the Elizabeth Daily Journal the next day under the head "New S. O. Labor Group Forming," describing the occasion as marking "the twentieth annual dinner of this sort." From April 23 to about May 19, inany of the emplpyee representa- tives spoke to numerous employees as to what was going on. The several representatives tivho testified on the subject were. unanimous in stating that the employees who spoke to them insisted that they carry on as nearly like the old Plan as possible, but their testimony in substance that they made it plain to the employees that the Plan was in effect disestablished, is not supported by the record. The facts recited, and subsequent events, indicate that exactly the contrary was the case.; Follo«-ing the April 28 dinner-meeting, the new constitution and bylaws committee set to work to prepare a.constitution and bylaws, in which work Field assisted. By May 6, however, the committee members were still not in agreement upon the language of the same and were concerned whether there -, as anything therein which might be construed as illegal. One of the first articles of the constitution they had drafted provided that "The object of this organization is to perpetuate the desirable features of the industrial Representation Plan . . ." It was further provided that "The presently elected officers under the `Industrial Representation Plan' shall function as the officers of this organization and the various representatives under that plan, shall continue to so serve in this organization should the employees of the plant so decide by their acceptance of this or- ga.nization." Another provision was that the committee to conduct the annual election of representatives should be "governed by the rules and regulations adhered to by the present board of elections under the present Representation Plan as near as possible, eliminat- ing, of course, any Company participation." It was provided, further, 37 The most that can be said for the respondents' contention in this respect is that Bren- nan, one of the representatives of the first division at Baywayy, apparently had some qualms on' the subject. ' Within a few days following the April 23 conference, he prepared and distributed in the first division a petition by the terms of which-the signers "hereby sanction the right" of the representatives of the first division to bargain collectively for them "until such time as we have a duly organized organization to take such matters off their hands." Almost all- of the approximately 500 employees in the first division signed the petition, between 200 and 300 within 2 days. Brennan admitted that these petitions were circulated on the job during working hours. It is a fair inference, and we find, that foremen or other supervisory officials were aware. of such distribution and made no effort to stop it. How- ever. there was no distribution of similar petitions in other divisions 'at Bayway or at any of the other refineries. The other representatives "thought I was crazy," testified Brennan. Brennan'smotive in distributing these petitions was not because of such temporary doubt as be may have had about the effect of the supreme Court decisions upon the Plan, but rather because lie had been told by, a.company representative that until the situation was clarified the employee representatives could act for the men only on minor rather than major grievances, and Brennan became angry. While there were no joint conferences from April 12 up'to this time, other than the dinner-meeting, the representatives acted for the men on minor or individual grievances. STANDARD OIL COMPANY 45. that "The recent. action on the `Wagner Act' by the United States Supreme Court, makes it necessary to eliminate company contribution or support and it is imperative that this organization be. self-support- ing. Therefore , it will be necessary to fix a charge of 25 cents as monthly dues . . ." While this was not the constitution as it was. finally adopted, it is highly significant in that it clearly. il- lustrates the, attitude and intentions of the officers of the Plan. The Plan officers were not attempting to set up a new and separate or- ganization but instead made it quite clear that the organization con tained the same features as the old Plan, was guided by . the same officers, and was, in effect, the old Plan with certain revisions that the constitutionality. of the Act compelled them, reluctantly, .to make. In the meantime, on the morning of April 29, Mettam informed Vice-President Smith that the rank and file of employees "are anx- ious to have some definite word from the management as regards the relationships since the Supreme Court Decision regarding the. Wag-, ner Bill." At Smith's suggestion, Mettam, on April 30, 'advised the three plant superintendents to pass the contents of the Company's Statement of Policy to the rank and file. On May 3, Bayway Super- intendent Meacham, while not passing out individual copies to the employees at Bayway, did post on that refinery's many bulletin boards a ' copy of the notice, and on May 7 copies of it were dis- tributed to each employee of the Bayonne and Eagle refineries, and posted on the plant bulletin boards. It is cle• that the posting and distribution was ample notice to the employees of the terms of the ``Statement of `Policy.'? About the first of May, Charles C. Jones, employee representative at Bayonne, had a conversation with Milton C. Hagen, Bayonne per= sonnel head. With him at the time was Herbert Eckert, a Bayonne employee representati ve, also 'active in - the ' admit istratioii of the. Plan. This conversation was held in the Bayonne _personnel office during -working hours. _ According to. Jones' testimony, Hagen asked them how they were getting along with the -"new set-up." Jones replied that they were having some disagreement on the language of the bylaws. Hagen then suggested "Why don't you get hold of Mr. Hicks [the, `Daddy of the Plan'] ? ' I will be 'glad to help' you out to get him." Jones replied that he had considerable faith in Hicks, that he knew Hicks had done a good job, `but that it might be a mistake . to see Hicks, that it might be misunderstood in view of the fact that Hicks was on pension from the Company. Eckert denied the conversation with Hagen, as testified to by Jones. Hagen did not testify. We are convinced, as was the Trial Examiner, that Jones' testimony in this respect is substantially in accord with the' facts. Immediately thereafter Jones', met' Field, told him what had 11 46 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD taken place in.the personnel office;'al d asked him what he'thouglit about it. Field replied that Jones had done the right thing, .that it tivould- be a. mistake to see Hicks. Neverthe.l.ess, the bylaws committee did see .Hicks. It was stipu- lated at*the hearing that McMillan, at committee meetings, made the suggestion with -respect to having the bylaws presented to Hicks. It insist be assumed, therefore, that neither Jones nor-Eckert had made the suggestion to the bylaws:'committee following their conversation with Hagen, and that the suggestion was first made by McMillan at it meeting of the committee in Field's office.38 The members of the committee thereupon discussed the -possibility of a visit to Hicks for, assistance in drafting the constitution and bylaws. Spears, chair- Irian of the-Baywaygroup -and a -member of the committee, w. as. asked at the hearing. whether the fact that Hicks was formerly in charge of industrial relations for the parent company was a factor in the decision to see him. Spears replied that "it was for that reason we wanted to-go to see him because we knew the experience that that man had had in labor relations ..." The committee agreed, a day or two prior to May 7, to see Hicks. Thereafter, and prior to May 7, management officials were made aware of the committee's plan to visit him. McMillan testified that he had asked John Burr, personnel manager at Bayway, for Hicks' telephone number in New York and that Bum replied, "if you are going to call him, don't call over the plant telephone." The tele- phone. call. was made from a public pay station at the plant gate. Clarence J. Hicks had. been connected with the parent company for many years as executive assistant to the president, in charge of industrial relations generally. About 1917 or 1918, at the direction of John D. Rockefeller, Jr., he had been actively associated with Mackenzie King in setting up an employee representation plan at the Colorado Fuel and Iron Corporation, a Rockefeller company. There- after., as found above, he was the most active. in originating, estab- lishing, setting up, - and otherwise assisting the Industrial Repre- sentation Plan of the parent company at the New Jersey Works, and performed.-similar work for the parent company in other operating refineries throughout the - country. His entire connection with the parent company was with respect, to labor relations generally, and more than anyone else in the Company he was identified with its Employee Representation Plans. He had attended various combined joint conferences and annual dinners for many years since the incep- tion of the Plan and was in fact the "Daddy of the Plan," as stated by Carringer at the April 28 dinner. 11 Virtually all the meetings of the committee were held in Field's office, and none was held on company property or time. Nor was any management or supervisory official present at any of these meetings. STANDARD- 01L .COMPANY- -47. In 1933. Hicks retired from -the parent -.company -on pension, being at that time approximately. 70..years of .age. A year or two there -after.; -however, he became chairman :of the Board, of Trustees. of In= 'dustrial -Relations Counselors; Inc.... This organization;..hereinafter referred to as Counselors, was established about; 1922, and incor- porated. in 1926, - as a non-profit organization engaged mainly in consultations and surveys of industrial relations for..single firms: It is also. consulted.' by various governmental departments and other organizations. 'Counselors was begun by John D. Rockefeller, Jr., and for several- years thereafter was supported solely by him. As time went: on, other. companies in addition - to the various Standard Oil companies availed themselves of the services. of Counselors. and made-- annual contributions to its support, with- the result that although John- D. Rockefeller, Jr., continued -to be, it substantial contributor, the amounts of his -contributions decreased. Because it maintained i well organized industrial relations department of its own; Standard Oil Company, the parent corporation, has not availed itself of the services of Counselors to the extent that many other companies have. and, accordingly, its contributions have been rela- tively small.. Thus, in the year-1934, out of a total income to Coun, .selors of $250,000,. the parent company, respondent herein, contributed but $2,500. Since 1934, the staff director of Counselors has been. Tudor H. A. Tiedeluann,-who is also secretary of the organization. Before. that time Tiedemann. had been an ,executive in the Industrial. Relations Department of they parent company, working with Hicks. The gov- erning body of Counselors is its Board of Trustees, consisting of seven persons, of which Hicks is chairman, Tiecleniann is secretary, and John D. Rockefeller, 3rd, and Walter C. Teagle, former president of the parent company, are members. In the absence of -meetings of the Board of Trustees, which axe infrequent,. the- directing body of the organization is composed of an Executive Committee consist- ing of Hicks; John D. Rockefeller, 3rd, and Teagle. The-first visit to Hicks' office at Counselors was made by the con- stitu.ion and bylaws committee on May 7.39 When they arrived at Hicks'- office, they told him that they regarded him. as their friends that'they-wished to retain all the benefits of the Plan, that they had drafted a constitution and bylaws, and that they wanted Hicks' assistance to be sure it was legal. They concluded by asking Hicks whether it was. proper for then to talk to hiul on the subject and assured him that the Company did not know of their visit. He replied that there was no reason-why they could not consult him 30 The members of the committee making the trip were Spears , McGann , Kelly, Coyle, Hurley, Mallon, and McMillan. 1 48 DECISIONS OF -NATIONAL" LABOR RELATIONS BOARD on the subject, that he would beglad to help them, and.Jthathehad assisted in the preparation of ' constitutions and bylaw's for -other organizations throughout the country. The committee members' had with them a. 'draft of the constitution and bylaws they had prepared, and data concerning constitutions and bylaws of two or three other, organizations. Hicks called in Tiedemann, who thereupon discussed with the committee various sections of the draft which the commit- tee. had prepared. During this discussion Hicks was not present. The 'committee told Tiedemann 'that the- men in the plant. had:aol_d-_" them to hurry up and get- going,- that they wanted 'to have some- thing which they ' could "sell" to the, men as quickly as possible. Tiedemann said that he understood that the representatives had been elected under the old- Plan and that it would look better some day to a Labor Board -if they had another election. The committee replied that they had no time for that, and that if the employees voted on whatever was put up to -them that it would be the same thing as an election.40 -The committee members spent several hours at the office of Counselors in this connection,' and at the conclusion thereof Tiedemann, who had taken notes, suggested that they return later and that he would have it revised draft ready for them. The committee returned on -May 12 and again spent several hours with Tiedemann who had, in the meantime, revised the language of the 'draft which had been left with him, and added' two or three-sec- 'Lions. One of these sections stated that "Nothing herein contained shall restrict or qualify in any way the right of individuals or minority groups, who are not members of this association or who do not vote in its elections, to deal with the management directly or with their chosen representatives." After he presented the revised draft to the committee, Tiedemann suggested that they discuss the .matter among themselves, and the committee accordingly did so, spending about 2 hours on such discussion, after'which they returned and indicated that the revisions were satisfactory. At the conclusion of the conference, the committee asked Hicks if there was-any-charge for his services or those, of Tiedemann. ' Hicks replied' in effect that he_wa,s glad to be of assistance to the committee and that he expected no compensation. None was paid. On May 14 there was a meeting of the constitution and bylaws committee with the other employee representatives off company prop- erty where, after some discussion, the employee representatives of the three plants voted to accept the constitution and bylaws as they had been revised, making one minor change. At the same meeting the 40 These latter findings as to the conversation between Tiedemann and the committee are based on Tiedemann's testimony. Compare what was said by Employee Representative Eckert later at a combined joint conference held on August 3, 1937, infra. STANDARD OIL COMPANY 49 employee representatives made plans to send ballots to the employees in which they should vote on the acceptance or rejection of the con stitution and bylaws, and the continuance, in office, until April 1938, of the employee representatives who had been elected under the Plan in April 1937. This material was sent to the employees by mail on May 19. As' indicated hereinabove, up to April 29 at least, the employees as a whole.had not received the impression that the Industrial Rep- resentation.Plan had been disestablished. The respondent',s evidence that on the moliing of April 29 Mettam informed Smith that the rank and file of employees "are anxious--to have some definite word from the management as regards the relationships since the Supreme Court Decision regarding the Wagner Bill," tends to bear this out. If, as- is contended, it had been made plain to the employees before that date that the Plan had been disestablished, there would have been no anxiety about "some definite word." As a matter of fact, as found herein, the impression they received was that the Plan could continue' if company support were, withdrawn and minor re- visions made. An article in. the Elizabeth Daily Jouvnal of May 11 entitled "Workers of S. O. Speed New Plan" quoted. an announcement by McMillan that the bylaws committee was drafting a constitution and.-bylaws, for the "proposed new collective,bargaining organiza- tion," and described McMillan as- having "served as chairman of the combined elected delegates to the now dismantled management- sponsored employee representation set-up." The article stated-that the "new organization". would replace the Plain "outlawed" by the Act. On May 14, the May 1927 issue of the Esso Refter° was dis- tributed to the employees at the New Jersey Works. This issue contained a copy of the Statement of Policy, a copy of an editorial entitled "The Company and Its Workers," which had appeared in the April issue of The Lamp and was similar to the Statement of Policy, and -also an article, being the lead story on page 1, entitled "Twentieth Anniversary Dinner Held," which set out a summary of what had occurred at the April 28dinner-meeting. The material sent to the employees by the employee representatives on May 19 consisted of a letter containing a ballot and a copy of the proposed constitution and bylaws. The ballot stated, "Do you approve of the plan of the [Here was inserted the name of the particular refinery] Refinery Employees Association prepared and recommended by the Committee of Employee Representatives?" The letter was as follows : Owing to conditions brought about by the Wagner Act, -the management of our company has been obliged to withdraw 481039-42-vol. 43-4 - 50 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD from participation in- of financial support to the Employee 'Representation Plan which has been in successful operation in this . company for nineteen years. Hence, the, representation -plan [41] for'us--as employees will will cease to existunless the employees decide that it be revised so as -to meet fully all legal requirements. - Believing that the majority of the employees of this refinery desire to carry on collective bargaining arrangements as similar as possible to those which we enjoyed under the old-- reptesenta- tion plan, the representatives -of the employees who were .elected in April, 1937, have drawn up and herewith submit for your approval or rejection a new -plan of employee organization. The name of the proposed plan is The [Here was-inserted the name of- the particular refinery involved] Refinery Employees Association. We trust that you will read the copy of the pro- posecl constitution and general rules which is handed you-here- ith, and make your decision after careful consideration in -N- your own personal interest and that of your fellow employees.. Realizing that such a plan must have an organization to start out with, we, whose names appear below, who are the representa- tives elected by you' at the last election under the old plan, are willing to carry on until the next annual election which would be .due in April 1938 provided that is the desire of the majority of the employees. We earnestly hope that our proposals have the approval of the employees of this refinery. We propose. that an election by secret ballot to determine the choice of employees in these mat- ters be held from Monday, May 24 to Friday May 28 .... Here followed the details of the referendum. The letter con- cluded with the names of all the representatives of the 'partic- ular plant involved] The Company was aware that the constitution and bylaws commit- tee had been engaged in the process of drafting a constitution and bylaws and in setting tip the Associations, and a copy'of the referen- dum material recited was seen by Dlettam at or about the time it was 41 The respondents in their brief contend that "obviously" the representatives meant "industrial representation" by the use of this term, and that this portion of the letter makes it clear that-the Thin was out and that collective bargaining as a method under employee representation was out unless the employees wanted it." The respondents are again relying on the nice 'but unrealistic distinction we have discussed above. It seems obvious to us that the representatives in drafling this letter meant all three terms-used in the first two paragraphs, that is. "the Employee Representation flan," "the representation plan," and "the old representation plan," to mean the same thing, namely : "the Employee Representa- tion Plan which has been in successful operation in this company for nineteen years." It seems even more obvious to us that the employees receiving this letter so construed it. ;_ ±': STA\'I)A'RI) 011 - CODZPA-NY -5f mailed to the employees.42 -l.Iettain was asked it the hearing whether the Company had made any effortto make it- plain tothe employees generally,, up to or after the time the elriployees had voted on the constitution- and bylaws, that the Associations were not a- revision or amendment of the Industrial Representation Plan. He answered, "Not that I know of." - It was stipulated -at the hearing; and we find, that the preparation, distribution, casting, collecting, and counting of the ballots was -off ,company property, on the employees' own time, and that all costs of balloting were paid by several employees who were later reimbursed by the Associations, which also paid the other expenses in connection with the referendum.' Election details were handled by an election committee of several employees who had been appointed by the employee representatives. A total of 7,160 wage-earner employees were eligible to vote at the 3 plants. Over 86 percent of them cast their ballots. Approximately 94 percent of the votes were in the affirmative. _ These figures were reported by the election committee to the 'management on the, morning of May. 29, and within a few days thereafter the results were formally certified to the Company by the election committee: at the 3 'plants. E. The Associations; the contracts; events from June 1937 The Associations as set up constituted on the whole merely ,minor revisions of the Plan. Such differences as there were had to do largely -with the difference in name, the elimination of financial support from the Company,43 and the fact that meetings of the employee representa- tives, other than meetings with represeiitafives of ^ management at joint conferences and combined joint conferences, were held off com- pany Property-44 The core of the Plan, the joint conference procedure, was retained.45 An equal number of employee representatives and management representatives attended the conferences, the manage- ment representatives consisting of the same persons-who had acted as such under the Plan. Each group had equal voting power. The plant superintendent continued to preside as chairman at joint con- ferences, and Mettam, the Works Manager, at combined joint con- ^ John Burr. personnel head of the Bayway plant. testified that he saw a copy of the constitution and bylaws at the time they were being mailed out to the employees or several days before .that date.' He testified that copies, of the referendum material were "easily available to, everyone who might have any interest in them" ; and that it was his recollection that one of the representatives told him in effect, "Here is something in which you may be interested." *' A check-off was subsequenfly granted. 444.Employee representatives had met'by themselves off company property from time to time under the Plan. The respondents and Associations in their exceptions and briefs point to other differences between the Associations and the flan.' They are either discussed herein or we find then to he only negligible differences. +s Even the same designations , "combined joint conference," "joint conference," and "divisional conference," continued to be employed. - - 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ferences.46 Except for the fact that the Associations paid for, the, printing, the minutes of the joint conferences and combined joint conferences continued) _to be prepared and distributed in substantially -the same way as before, the distribution -being through the medium of the company boxes which were placed just inside the plant gates, which boxes Were also used for the distribution of The Lamp, parent company publication, and the Esso Refiner, the Delaware Company paper.47 The. selection of employee representatives continued substantially as it had under the Plan. There. Were the same voting divisions, and the same requirement that one representative would be elected for each ^150.men in each=division,°the only difference -being-that-there -was a minimum of 1 representative instead of 2 for each division. As under the Plan, the representatives were required to be employed in the division from which elected. There is one difference in that under the Plan they lost their status as representatives automatically if they left the Company's employ or if they-were transferred from the divi- sion from which elected, while under the Associations this action was discretionary with the governing body. The annual elections con- tinued to be held during the month of April as under the Plan, and were conducted in substantially the same way that they had been. As under. the Plan, the Association officers were selected not by the employees as a. whole but by the employee representatives. As indi- cated above, the employee. representatives, who had been elected under the Plan in' April 1937, had) providedl in the. referendum material sent to the employees and in the constitution and bylaws, that, if approved by the employees, they were to continue in office as such- representatives until the next annual election in April 1938. Thus there was no, opportunity for the. employees to vote affirmatively oil.. the referendum without at the same time accepting and continuing in office, until April 1938, the same representatives who had been elected under the Plan in April 1937.48 The grievance procedure provided for under the Plan and that conducted under the Associations was virtually the same. The job of the representative, his rights, his duties, and his relationship with his constituents, remained substantially unchanged. 40 While under the Plan these persons automatically assumed the chair, and under the- Associations they were elected as chairmen, in practice the election of the chairmen under the Associations was generally regarded as a formality. At joint conferences held at the Bayway Refinery after June .1939, however, the plant superintendent and an employee rep resentative alternated as chairman at the subsequent ;joint conferences there held. 49 These boxes were also used for the distribution of the Employees News, a New Jersey Works publication which was started by the employee representatives in June and supported'. by the Associations. - 48 The only way an unsatisfactory representative could be ousted was by a recall petitiom- signed by 51 percent of all eligible employees of the division. 'STANDARD OIL COMPANY--' 53- No appreciable distinction or break was discernible between the. last joint conferences held tinder the Plan and the -joint conferences and combined joint conferences which followed under the 'Asso- ciations. The latter continued where the former had left off. In= deed,, statements made- by the employee °.l°epresentatives and repre= sentatives of management, at these meetings, indicated that they recognized no distinction in practice.40 Early in June 1937 the Company agreed with employee representa- tives to check "off Association dues and pay the money over to the respective Associations. It was provided that this should be done only upon written authorization from the employees, that the authori- zations were subject to cancellation by the employees, and that the Company could charge one-half cent for each individual deduction so lnade. The first deductions were made on July 9 and continued thereafter, the Company turning over to the Associations an average of $2 per year per member, and deducting the agreed one-half cent 'for each dollar so turned ov-er.50 These deductions have constituted the only financial support the Associations hak=e received since their inception following the referendum previously referred to, except for certain wage payments to Field and a limited amount of Asso- ciation activit3i on company time and property set forth hereinafter. All deductions have been made only upon the written authorization of Association members who were listed as in good standing in the respective Associations.5' ' The first combined joint conference held after the referendum was on June Z. Statements in the minutes of this meeting indicate that at least some of the employee representatives considered that this combined joint conference. was but a continuation of the conferences held under the old Plan rather than the first meeting held under the Associations. Thus, according to the minutes, Manz referred to the meeting of April 28, held just prior to the dinner, as a joint con- ference, and Jones - said that he did not know that the April 28 meeting "was not a. legally constituted one," and that he had been led to understand "that both sides were there in attendance and that it was legal." Mettam, who presided, said that "as far is the con- ference was concerned we were very careful not to call it a joint . "At the April 28 conference-dimmer, as already found, both sides' discussed numerous items involving working conditions just as they had at previous combined joint conferences. 50 Dues were $3 a year. However. the dues deduction authorization cards contained a provision to the effect that clues should not be collected when the am mounts in the treasury. of the Associations exceeded $4,000 at the Bayway and Bayonne plants respectively and $1,000 at the Eagle plant. Since these amounts. were often reached, an average of about v 2 a year was collected from each of the members in dues. 11 Testimony was offered at the hearing that these deduction authorization and membership application cards' were distributed during working hours on the job. However, such circu- lation as took place on the job was not extensive and the record does not support a finding that foremen or other supervisory employees had knowledge of such distribution. 54 DECISION'S"' OF NATIONAL 'L"ABOR RELATIONS'"BOARD .conference." To Jones' rejoinder that questions were . discussed and. minutes taken, Mettam replied' that the minutes "were brief minutes, and afterward it was decided the best thing to do was to. destroy them," although it subsequently developed that they were not de- stroyed. There was considerable discussion at this combined joint conference as to various items involving wages, hours, and working conditions which had not been settled at earlier joint conferences and combined joint conferences. On the whole, the procedure at this conference followed exactly the same pattern as those under the old Plan. One of the items under discussion was the drafting of a proposed contract between'the Associations and the Company, and Mettam. suggested that the representatives confer with the personnel managers of the .three plants in order to formulate a contract to be presented to management for consideration. A committee to handle the con- tract discussions was almost immediately chosen from among the representatives of the three plants. Beginning on June 9, and for some time thereafter, the contract committee met with the plant personnel managers jointly in order to draft a contract for possible agreement. They held several meetings in the following months and finally on December 8, 1937, after sub- mission by the personnel managers to top management and by the representatives to the membership of the Associations, the contracts were approved and signed. ...These contracts, which were identical for each of t'he,plan coiitiiiued in effect the same arrangement that had existed between the employees and the C'ompany' under the Plan, plus a few' minor 11:lpro\-ements in working conditions.- The contracts, by their terms, renewed themselves, annually, and were still in effect at the time of the hearing. The first joint conference held at the Bayonne plant after the incep tion of the Associations vas held on July 21, 1937, Plant Superinten- dent Tiedemann presiding. He said at the outset: "This may be considered . . a memorable occasion . . ..We' have had nineteen years of successful operation and now we change our plan a little hit and we have a little different plan, but I think it is with the same ship and steering the same course, and I think we are going to arrive at the same destination as we got in the nineteen years in the other-association [Industrial Representation Plan] and I think you fellows probably feel the way I do about it-that this is. really a most important period "As will be seen 'presently, this was recognized in statements made by management and employee representatives at joint conferences held after t`e signing of the contracts. There had been no formal signed contract under the Plan. The original Plan booklet published by the Company in 1918 and thereafter contained a copy of the "working agree- ment" under which the works operated. This "working agreement," as modified in minor particulars from time to time in subsequent joint conferences and combined joint con- ferences, was considered the contract or working-agreement which existed. It was never signed. . STANDARD, 0IL .,CQMPANY 55 in our history because we are placing on trial here now at Bayonne, a new plan-we are starting a new path and for my own part, I have every. confidence that it is going to be to our mutual, benefit . . Now we turn over a new page-we have no business-everything we have now is new business." As a matter of fact, after this statement the employee and' management representatives proceeded to dispose of matters. which had remained unfinished prior to April 12, as they did also at the joint conferences at each of the three plants. During a combined joint conference held on August 3, 1937, over which Mettam presided, Representative Eckert, who had been very active in_the setting! up of the Associations, said:. we signed up in Bayonne 3,100 men. You didn't give them any voice in the organi- zation only by signing up for it. They had no voice as to who should be officers .. , We, went out and got the members-there was only one way to do it and that was to give them an idea, of selling them something." Eckert added: "When we sold this to the men, organized and set them up as members, what doi you think we told them, how do you think we got them in?. Not just because we are the Standard Oil Company-. It was like a salesman . . . We did the same thing :.. . We wanted to get them into it ..." At a combined joint conference held on .September. 15, 1937, over which,Mettam presided, there was a discussion of the proposed con- tract which was then under consideration by the contract committee and the .personnel managers. Mettam. said:, "This staff about a new organization, and so'on, I don't think it"is a new organization alto- gether. We have had - industrial representation, we worked under that plan for nineteen years, and I think that the quickness with which the employees in the plant signed up as members and were willing_ to pay dues for, was 'a very strong indication of what the rank and file of the employees in our plant thought about the organization, if you want to call it that, but the industrial representation plan." Continuing the discussion of the proposed agreement then under con- sideration, Mettam added : "If somebody has gone out and promised a lot of stuff, they have done it on their own, and they certainly. can't expect the management to turn around and be .. . Santa Claus, just for the purpose of making something good that somebody without any .. responsibility° promised them . ." Representative. Brennan said: ". .. you,as our chairman, when you. were in the caucus room upstairs, told us you were .100 percent behind representation. What was behind that move we will forget ..." 53 During a joint conference held at Bayway on September 28, 1939, Representative Phillips said: ".. . we have had' this representation plan for twenty years ..." I Brennan was here referring to a statement made by Mettam at, the March 12, 1937, combined caucus of employee representatives, referred to supra. 56 DECISIONS"OP NATIONAL, LABOR RELATION S BOARD Other alleged, support furnished the -Associations by the Company involves Harry Field' and certaiii Association activity on company time and-property. Although not an employee representative, Field, as attorney for one -or more of the Associations, attended many joint conferences, and in many instances received -for the time so spent his regular pay as an employee of the Company. Field had also been so paid for his attendance at the joint caucus of the employee repre- sentatives on the afternoon of -April 28, 1937. It is apparently the. position of the Company that these payments, or solve of them, were made in error, and that in any event the records produced at the hear- ing s cow merely that Field received.a full clay's pay on dates when he attended certain joint conferences; that it. was the custom to permit some of the men to vary their hours somewhat, and that it is hence not clear that in fact Field was paid by the Company for the time spent at joint conferences. The record, on the whole, does not support the Company's contention in this respect. We affirm the Trial Ex- aminer's finding that the Company paid Field his regular wages for his time spent at many, although not all, joint conferences and at the April 28 caucus, with knowledge of the use to which the time was put, and thus contributed support to the Associations. The only testimony concerning activity of the Associations on coin- pany. time and property for which the Company is properly charge- able occurred in April 1941 at the Bayonne plant. During that month two employee representatives circulated a petition among the em- ployees in the plant concerning a proposal involving a change in hours. We agree with the Trial Examiner' that this petition was- widely circulated during working hours among the men in the plant in sufficient numbers and under such circumstances that it may be. fairly inferred that the company foremen were aware of its distribu tion, and we so find. Nothing was clone to curb this activity. . F. Concluding findings . The respondents contend that the Delaware Company, effectively disestablished the Plan and that the Associations were created by the employees as new and independent organizations, free from employer interference and domination. We do not agree. It is unnecessary to repeat here the indicia of domination of the Plan, as found in de- tail above. The respondents admit that the Company initiated the Plan and' furnished it various forms of support, and that the contin- uance of the Plan after July 5, 1935, was in violation of the Act. From the effective date 'of the Act until after the constitutionality of the Act was affirmed by the Supreme Court, the respondents admittedly took no steps to disestablish the Plan or to apprise the employees that they proposed to cease their interference with the choice of bargain mg representatives. - ' ' STA\DARI) OIL COMPANY 57 The effects of employer coercion; inherent in the establishment and maintenance of a- company-dominated organization, can be dispelled -only by the re-creation of conditions in which genuinely -free choice can be exercised. To this end it is essential, if an ostensibly new organization is set up, that there be "a complete break between the two unions and a disestablishment of the objectionable U111011,1 154 and that .the employees be "effectively and tministakably informed.of such ac- tion."`'' The respondents contend that the Delaware Company dis- established the Plan and clearly informed the employees of its action. From our above findings-.regarding the Statement of Policy, theiAn- pression it created in the minds of the employee representatives, and the subsequent actions of the respondents, the representatives, and the employees, we conclude that the respondents did not disestablish the Plan or give effective notice thereof. The Associations were established and first administered by repre- sentatives and officers elected under the Plan. The Associations were merely minor revisions of the Plan. They were so intended by the representatives and, in effect, were so described to the employees. Thus, during a period in which the respondents had done nothing effectively to reestablish a condition of freedom, the Associations succeeded the illegal Plan with strong indicia of connection between the two. In -these circumstances, the mass of employees, conditioned by 19 years of denial of their right to self-organization,51 could reasonably have assumed that the respondents favored the Associations as they had favored the Plan. "Timorous habit" 51 firmly molded by 19 years of domination consequently nlay well. have dictated the employees' choice of the Associations. It is the circumstance of clear connection between the Plali and the Associations in the absence of restored neutrality that is most persuasive in the case. -The coincidence of these factors es Magnolia Petroleum, Co. v. A'- L. N. B., 115 F. (2d) 1007 (C. C. A. 10). Thus, courts have receguized the necessity of "wiping the slate clean" (N. L. R. B. v. Newport News Shipbuilding and Dry Dock Co., 808 U. S. 241) ; "clearing of decks" (Westi-nghouse Elec- tric & Affg. Co. v. A'. L. R. B.. 112 F. (2d) 657 (C; C. A. 2), affirmed, per euriant, 312 U. S. 660) ; "absolute and public cleavage between the old and the new" (Western Union Telegraph Co. v. N. L. R. B., 113 F. (2d) 992 (C. C. A. 2) ) ; clearing the field "of the original illegal growth," thus rendering it "suitable for sowing the seeds of an undomi- nated body" (E. I. Dupont de Nemours & Co. v. Al. L. R. B., 11.6 F. (2d) 338 (C. C. A. 4)) ; washing out "the virus of control" (N. L. It. B. v. II. E. Fletcher Co., 108 F. (2d) 459 (C. C. A. 1)). . 65 Magnolia Petroleum Co. v. N. L. R. B., supra. See Sperry Gyroscope Company, Inc. v. N. L. R. B., July 3, 1942. 10 L. R. R. 689 (C. C. A. 2), where the Court stated that the influence of "twenty years of uninterrupted company, domination of a single union . . . does not suddenly evaporate . in the absence of proof of-powerful counter-forces." In this connection it is pertinent to note that an extremely large percentage of the employees of the New Jersey Works "grew up" with the Plan, the average'length of service of the employees being more than 15 years. sN. L. R. B. v. Pacific Greyhound Lines, Ine., 303 U. S. 272, quoting Matter of Pacific Greyhound Lines, Inc. and Brotherhood of Locomotive Firemen and Engincincn, 2 N. L. R. B. 431. 58 DECISIONS OF NATIONAL LABOR . RELATIONS BOARD infects the ostensibly new organization with the "virus of control." as - The choice of the employees was not "as free as the statute demands." 59 We find no merit in the respondents' contention that the Plan. was effec- tively disestablished- and that the Associations were created by the employees as new and independent organizations, free from employei -interference and domination. The respondents further contend that "there is no justification" in the record "for treating the Parent Company as an `employer' in this -proceeding.", Section 2 (2) of the Act defines the term "employer" as including "any person acting in the interest of an employer, directly or indirectly ." Since the parent company is not the immediate employer, its responsibility depends-upon whether, after July 5, 1935, it acted in the interest'of the Delaware Company, the immediate enr- ployer, in connection with the facts hereinabove found. The parent company is a bolding company solely, with approximately 250 subsidiary corporations. The Delaware Company is a wholly owned subsidiary. The parent company originated and -instituted the Plan at the New Jersey -Works at a tune .when it operated the Works. It transferred title to and the operation of the New Jersey Works to the Delaware Company in 1927, whereupon the Delaware Company ratified the labor policies of its-predecessor and continued the same, including the Plan, in effect. The evidence is clear that in mat- tors- of basic policy, including especially financial policy and' labor policy, the Delaware Company looks to the' parent company for advice, assistance, and approval. The respondents argue in their brief, in effect, that the parent com- -pany cannot- be found to be an employer within the meaning of the - Act, unless there is evidence of action taken .by representatives of the parent company in connection with the series of happenings upon which we rely, and that there is no such evidence in the instant case. With respect to labor relations, the parent company, primarily through its Industrial Relations Department headed by Frank W. Pierce, con- stantly keeps in close touch with the labor relations of its subsidiaries and lays down basic policies which the operating companies are ex- pected to follow, and do follow. It is, true that a certain measure of local. autonomy remains in the operating subsidiary,. but this exists within the limits of the policy already laid down, except in infrequent cases where the parent company, because of peculiar local conditions, approves of some variation. The employees at the New Jersey. Works - have looked upon, and still look upon. the parent company as deciding these general policies. The distribution by the parent company of The- Lamp, official publication of the parent company which is dis- °% N. L. R.B . v. H. E. Fletcher Co., supra. sD 1[e.stitt;/house Electric & Mfg. Co. v. N. L. R. B ., .sutp ra. STANDARD *OIL COMPANY' .59 tributed to-the employees of the New Jersey Works and the employees of other subsidiaries, has fostered this feeling ' on. the part of the employees. In The Lamm and other booklets issued by the parent company to the workers at the New Jersey Works, they are therein. referred to. as.'the.employees of the._Standard..011 system generally. Statements made by the officials of the respondents have tended to instill in the minds of the employees at. the New Jersey Works the unity of control and decision in these matters . Thus, for example, at a combined joint conference held on May ,7, 1936, according to the ,official minutes of the conference , Abrams "referred particularly , to the Management of the Standard Oil Company (New Jersey) [the parent company] which decides the general policies." From time to time, at various conferences, employee representatives, dissatisfied with decisions of local management on particular matters,-have indi- cated their desire to take them up, with officials of the parent company. Upon the impending passage of the Act in 1935, officials of the Indus- trial Relations Department of the parent' company appeared at a combined Joint conference and discussed the-possible effect of the passage of the Act upon the Plan. In 1937, .following the Supreme Court decisions of April 12 upholding the constitutionality- of the Act, the language of the Statement of Policy was not agreed upon until Pierce had been consulted. It was. Pierce, too, who exhorted the employee representatives at the April 28 dinner-meeting to con- tinue With the Plan, in revised form. Indeed, throughout the exist- ence of the Plan, even after the transfer of the New Jersey Works to the Delaware Company, and during the existence of the Associa- tions as well, officials of the parent company, including Pierce, ap-. peared at various combined joint conferences and joint conferences, thereby making it plain, and enforcing in the minds of the employees, the unity of interests, control, .and direction. Minutes of combined joint conferences and joint conferences continued to be sent by the. .Delaware Company to the parent company bath tinder the Plan and . the Associations. The proposed contracts with the Associations were submitted to Pierce before they were signed. We find that the .relationship between the respondents herein is such, and the officials of the parent company have so acted, as to - .constitute the parent company an "employer" within the meaning, of that term in the Act, of the employees here involved.60 The re- spondents' contention in this regard is without merit. - We find, as didctthe Trial Examiner, that the respondents, by the above described course of conduct, have dominated. and interfered with the administration of the Industrial Representation Plan, and With the formation and administration of the Bayway Refinery Em- See Bethlehem Steel Conipany v. N. L. P. B., 120 P. (2d) 641 (App. D. C.). '60 DECISIONS` Of, NATIONAL LABOR RELATIONS BOARD ployees' Association, the Bayonne 'Refinery Employees' Association, and the Eagle Refinery Employees' Association, and have contrib- uted support thereto, and have thereby interfered with, restrained, .and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act.61 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondents' set forth in Section III above, occurring in connection with. the. operations. described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondents have engaged in unfair labor practices, we shall order them to cease and desist therefrom, and to take certain affirmative action' which we find necessary to effectuate the policies of the Act. We have found that the respondents have d olninated and interfered with the administration of the Plan and with the formation and ad- ministration of the successor Associations and have contributed sup- port thereto. Since•the^Pianno longer exists as such and there appears to be no likelihood of its reestablishment, no order will be made herein with respect to it. The effect and consequences of the respondents' domination, interference wvith,_ and support of the Associations, as well as the continued recognition of the Associations as the bargaining representatives of their employees, constitute a continuing obstacle to the free .exercise by the employees of their right to self-organization and to bargain collectively through representatives of their own choos- ing. Because of the respondents' illegal. conduct, the Associations are incapable of serving the employees as a genuine collective bargaining agency. Moreover, the continued recognition of the Associations would be obstructive of the free exercise by the employees of the rights guaranteed to them by the Act. Accordingly, we shall order the respondents to cease and desist from recognizing the Associations, or any reorganization thereof, as the representatives of any of the em- ployees at the New Jersey Works for the purpose of dealing with them a' Certain allegations of the complaint are not supported by (tile evidence. The record does not support the allegation in paragraph 14 of the complaint that the respondents "(lid solicit, permit and acquiesce in-the solicitation of membership in said Associations during working hours" ; nor does it support the allegation that the respondents "did and continue to interfere with the administration of the respective Associations by holding out to employee representatives of the Associations greater prospects of promotion to supervisory status than to other employees." STANDARD OII;'•COMPANY 61--: concerning grievances; labor disputes, wages, rates of pay,: hours of employipent,'or other conditions of employment, and to disestablish. the Associations as such representatives. G2 Under the facts found, the contracts w itli'-the :Associations -consti- tuted and were part of the unfair labor practices. We shall there- fore order the respondents to cease and desist from giving effect to the. contracts with the Associations signed on or about December 8, 1937, - as well 'as to any extension, renewal, modification, or supplement thereof, and any superseding contracts which may now be. in force. Nothing herein shall be taken to require the respondents to-vary those wages, hours, seniority, and other such substantive features of their relations with the employees .themselves which the respondents have established- in, the, performance of the contracts or as they have been extended, renewed,.inocli:fied,,sup.plemented, or superseded. Upon the foregoing findings of fact and upon the entire record in the case, the Board makes the following : - CONCLUSIONS OF LAW 1. Congress of Industrial Organizations, Bayway Refinery Em- ployees' Association, Bayonne Refinery' Employees' Association, and Eagle Refinery Employees' Association are labor organizations, and Industrial Representation Plan was a labor organization, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the administration of the IndustrialRepresentation Plan, arid- with the formation and admin- istration of Bayway Refinery Employees' Association, Bayonne Re= finery Employees' Association, and Eagle Refinery Employees' Asso- ciation, and by contributing support thereto, the respondents have engaged in, and as to the Associations are engaging in, unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of- the Act, the re-' spondents have engaged in and are engaging in unfair labor practices, within the meaning..of Section 8 (1) of the Act. 6' The respondents in their brief contend that disestablishment and withdrawal of recog- nition from the associations will not effectuate the policies of the Act because, i nter elia, "front the inception of the Plan in 1918 and continuing after it ceased. to exist through the Associations to the date of the hearing, there have been no labor disputes at the New Jersey works.. . The Supreme Court ruled on a similar contention in N. T,. R. B. v. Newport, News Shipbuilding an(I Dry Dock Co., cited supra, in the following language: "The Court below agreed with the respondent that, as the Committee had operated to the apparent satisfaction of the employees; as serious labor disputes had not occurred during its existence; and as the amen at an election held under the auspices of the Com- mittee had signified their desire for its continuance, it would be a proper medium and one which the employer might continue to recognize for the adjustment of labor disputes. The difficulty with the position" is that the provisions of the statute preclude such a dispo- sition of the case . . . In applying the statutory test of independence it is immaterial that the plan had in fact not engendered, or indeed, had obviated, serious labor disputes in the past." . 62 DECIS1ONS u F - VAT1GIAL' LABOR'.-RELATIONS BOARD 4. The' aforesaid ,unfair labor, practices are unfair labor practices, affecting commerce, within the meaning of Section 2. (6) and (7) of. the . Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act,, the National Labor Relations Board hereby orders that the respond- ents, 'Standard Oil Company -and Standard Oil Company of New Jersey; and their respective officers, agents, successors, and assigns,- shall:: L. Cease and desist from: (a)' Dominating or interfering with the formation or administra- tion of Bayway Refinery Employees' Association,. Bayonne Refinery Employees' Association, and Eagle Refinery Employees' Association, or any labor organization of their employees, and from contributing. support to Bayway Refinery Employees' Association, Bayonne Re- finery Employees' Association, and Eagle Refinery Employees' Asso- ciation, or to any other labor organization of their employees; (b) Recognizing or in any manner dealing with Bayway Refinery Employees' Association, Bayonne Refinery Employees' Association, and Eagle-Refinery Employees' Association, or any reorganization or successor thereof, as representatives of-any of their employees for the purpose of dealing with the respondents concerning grievances,-labor disputes, wages, rates of pay, hours of employment, or other condi- tions of employment; (c) Giving effect to any and all contracts, or supplements thereto or modifications thereof, or any superseding contracts, with Bayway Refinery Employees' Association, Bayonne Refinery Employees' As- sociation, and Eagle Refinery Employees' Association; (d) In any other manner interfering With, restraining, or coercing their employees in the exercise of the right to self-organization,, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaiiiiiig or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds. will. effectuate the policies of the Act': (a) Withdraw all recognition from Bayway Refinery Employees' Association,' Bayonne Refinery Employees'. Association, and Eagle Refinery Employees' Association as the representative of any of the employees of the New Jersey Works for the purpose of dealing with, the respondents concerning grievances. labor disputes, wages, rates. of pay, hours of employment, or other conditions of employment, and STANDARD OIL COMPANY 63 completely disestablish said Bayway Refinery Employees'. Associa- tion, Bayonne Refinery Employees' Association,' and Eagle Refinery Employees' Association as such representatives; (b) Post immediately in conspicuous places throughout the plants of the New Jersey Works It Linden,. Bayonne, and Jersey City, New. Jersey, and maintain for a period of at least sixty .(60) consecutive days from the date of posting; notices to their employees stating that the respondents will not engage in the conduct from which they are ordered to cease and desist'in paragraph 1 (a), (b), (c), and (d) of- this Order, and that they will take the affirmative action set forth in paragraph 2 (a) of this Order. (c) Notify the Regional Director. for the Second Region in writing within ten (10) days from the date of this Order, what steps the re- spondents have taken to comply herewith. MR. GFRARD D. REILLY took no part in the consideration of the above Decision and Order.