American Petroleum Company

In the Matter of AMERICAN PETROLEUM COMPANY and OII. WORKERS INTERNATIONAL UNION, LOCAL No. 227 In the Matter of AMERICAN PETROLEUM COMPANY and OIL WORKERS INTERNATIONAL UNION, LOCAL No. 227 Cases Nos. C-518 and R-470, respectively.-Decided May 4, 1939 Oil Refining Industry.Interference, Restraint, and Coercion: circulation of petition on company time and property, with knowledge of foremen ; antiunion activity by supervisory employees during working hours and on company property ; engendering fear of loss of employment for union membership and activity ; expressed opposition to outside labor organizations, statements by supervisory employees favoring inside organization and opposing outside organ- ization-Company-Dominated Union: holding of one-sided election by inside organization , on company time and property with knowledge of plant man- ager ; prompt recognition as exclusive representative of employees, without investigation of majority representation ; assistance in formation of ; coercion to join ; discrimination in favor of, endorsement ; domination of and interfer- ence with formation and administration ; support; soliciting membership in, by supervisory employees ; prescribed by employer, through favoritism to inside organization and antagonism to outside organization ; supervisory em- ployees, members of; threat of discharge for failure to join, by supervisory employees ; disestablished as agency for collective bargaining-Employee Status: minor supervisory positions, strawbosses, as-Unit Appropriate for Collective Bargaining: production and maintenance employees employed at refinery and pipe lines, exclusive of office and clerical employees, foremen, strawbosses, and other supervisory employees ; pipe-line employees included because of community of interest with refinery employees and because of absence of specific request for their exclusion ; request for designation of craft unit denied, where craft union had no members in and had never organized employees in such claimed unit-Collective Bargaining : charges of refusal to bargain collectively dismissed-Investigation of Representatives : controversy concerning representation of employees : majority status disputed by em- ployer-Election Ordered: time for and eligibility date to be fixed after effect of unfair labor practices dissipated ; company-dominated union excluded from ballot. Mr. Earl R. Cross and Mr. L. N. D. Wells, Jr., for the Board. Mr. T. J. Arnold, of Houston, Tex., for the respondent. Mr. James E. Winborn, of Houston, Tex., for the Federation. Mandell & Combs, by Mr. Arthur J. Mandell, of Houston, Tex., for the Oil Workers Union. Mr. J. N. Davis, of Kansas City, Kans., for the Boilermakers. Mr. J. H. Krug, of counsel to the Board. 12 N. L. R. B., No. 78. 688 AMERICAN PETROLEUM COMPANY DECISION ORDER 689 AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon charges duly filed by Oil Workers International Union, Local No. 227, herein called the Oil Workers Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued its complaint, dated August 28, 1937, against American Petroleum Com- pany, Houston, Texas, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (5), and Section 2 (6) and (7) of the National Labor Re- lations Act, 49 Stat. 449, herein called the Act. Copies of the com- plaint, accompanied by notice of hearing, were duly served upon the respondent, upon the Oil Workers Union, and upon Employees' Federation of the American Petroleum Company, herein called the Federation. The complaint, as amended at the hearing, alleged in substance (a) that the respondent had dominated and interfered with the formation and administration of the Federation, and contributed support thereto; (b) that the respondent encouraged, permitted, and condoned the circulation of anti-union petitions, expressed opposi- tion to the Oil Workers Union, and engendered fear of loss of em- ployment for membership in the Oil Workers Union and for union activity; and (c) that on or about June 16, 1937, and at all times thereafter, the respondent refused to bargain collectively with the Oil Workers Union as the exclusive representative of all the re- spondent's employees at its refinery, exclusive of clerical and super- visory employees, said employees constituting an appropriate bargaining unit. Thereafter, the respondent filed an answer, dated September 2, 1937, denying the alleged unfair labor practices, and a motion to dismiss challenging the jurisdiction of the Board and the constitu- tionality of the Act and setting forth certain affirmative matter. An answer and motion to intervene, dated September 2, 1937, was filed by the Federation. Pursuant to the notice, a hearing was held at Houston, Texas, from September 13 to 29, 1937, before William H. Griffin, the Trial Ex- aminer duly designated by the Board. At the commencement of the hearing the Trial Examiner granted the Federation's motion to 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD intervene. The Board, the respondent, the Oil Workers Union, and the Federation were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed these rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. At the commencement of the hearing the Trial Examiner took under advisement the respondent's motion to dismiss. After the close of the hearing, the respondent renewed its motion to dismiss, stating as additional grounds that the evidence failed to show that the respondent had engaged in the alleged unfair labor practices, and that the evidence regarding interstate commerce did not war- rant the exercise of jurisdiction by the Board. The respondent's motion to dismiss is hereby denied, except in so far as it relates to the alleged unfair labor practices within the meaning of Section 8 (5) of the Act. After the close of the hearing the respondent filed with the Trial Examiner a motion to strike from the record ,certain Exhibits which had been received in evidence, on the ground that some of these Exhibits had not been connected with the re- spondent, and that others pertained to the predecessor of the Oil Workers Union or to proceedings by the Petroleum Labor Policy Board under an invalid law; and a motion to strike from the record certain Exhibits on the ground that they were immaterial, irrele- vant, and not properly authenticated. The motions to strike are hereby denied. On September 28, 1937, the Oil Workers Union filed with the Regional Director a petition alleging that a question affecting com- merce had arisen concerning the representation of employees of the respondent, and requesting an investigation and certification of rep- resentatives pursuant to Section 9 (c) of the Act. On November 20, 1937, the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On November 24, 1937, the Regional Director issued a notice of hearing, copies of which were duly served upon the respondent, the Oil Workers Union, the Federation, and upon International Broth- erhood of Boilermakers, Iron Shipbuilders, Welders and Helpers of America, herein called the Boilermakers, an organization claim- ing to represent employees directly affected by the investigation. AMERICAN PETROLEUM COMPANY 691 Pursuant to the notice, a hearing was held on December 9, 1937, at Houston, Texas, before Karl Mueller, the Trial Examiner duly designated by the Board. The Board, the respondent, the Oil Work- ers Union, and the Federation were represented by counsel, the Boil- ermakers by one of its officers, and all participated in the hearing. At the hearing the Boilermakers filed a motion to intervene, which was granted by the Trial Examiner. A motion to intervene pre- viously filed by the Federation with the Regional Director was also granted by the Trial Examiner at the hearing. Separate pleas in abatement, filed with the Regional Director by the respondent and by the Federation, praying that the representation proceeding be dismissed, or postponed until a decision was reached by the Board in the complaint case, were denied by the Trial Examiner at the hearing. Attached in each instance to the plea in abatement was an answer. The respondent's answer challenged the jurisdiction of the Board to proceed with the case, and attacked the constitution- ality of the Act. The Federation's answer requested that two alle- gations be stricken from the petition, and that the Federation be certified as the collective bargaining agency of the respondent's em- ployees. The Trial Examiner granted a motion by the Federation to strike one of these allegations from the petition but denied its motion to strike the other allegation. During the course of the hearing the parties stipulated that all evidence taken at the hearing in the complaint case be made a part of the record in the repre- sentation proceeding in so far as relevant to the issues therein, subject to any objections made and exceptions taken at either hear- ing. At the close of the hearing counsel for the respondent made a motion to dismiss the Oil Workers Union petition, on the ground (1) that the evidence showed that the Federation represented a majority of the employees in the appropriate unit, and (2) that the Board had no jurisdiction, because the question concerning representation had become moot. This motion to dismiss was denied by the Trial Examiner. Full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several other rulings on motions and on objections to the ad- mission of evidence. The Board has reviewed all the rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On April 15, 1938, the Board, acting pursuant to Article II, Sec- tion 37, of National Labor Relations Board Rules and Regulations- Series 1, as amended, ordered that the complaint proceeding be transferred to and continued before it for action pursuant to Article 169134--39-vol. 12-45 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II, Section 38, of said Rules and Regulations; and further ordered that the two cases be consolidated. On June 8, 1938, the Board notified the parties of the right, within 10 days, to apply for oral argument or permission to file briefs. No such requests were made by any of the parties. By an order dated August 29, 1938, the Board directed that Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order be issued and that the parties have the right within ten (10) days from the receipt thereof to file exceptions thereto, to request oral argument before the Board, and to request permission to file a brief with the Board. On November 22, 1938, pursuant to this Order, Proposed Find- ings of Fact, Proposed Conclusions of Law, and Proposed Order were issued. On December 2 the respondent filed exceptions thereto. In its exceptions the respondent requested oral argument on the exceptions and an opportunity to file a brief in support thereof. On December 3 the Board notified the parties that briefs could be filed on or before December 19. No briefs were filed by any of the par- ties. Pursuant to a notice of hearing and a notice of postponement of the date thereof, a hearing was held before the Board in Washington, D. C., on February 28, 1939, for the purpose of oral argument. The respondent was represented by counsel and participated in the argu- ment. Neither the Oil Workers Union, the Federation, nor the Boilermakers appeared. The Board has considered the exceptions filed by the respondent and, except in so far as they are consistent with the findings of fact, conclusions of law, and order set forth 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 RESPONDENT The respondent, a Texas corporation with its principal office at Houston, Texas, owns and operates a refinery, terminal, and dock at Norsworthy, Harris County, Texas. The plant is situated on the Houston Ship Channel approximately 10 miles from Houston. All the respondent's capital stock is owned by American Republics Cor- poration, herein called American Republics. Other subsidiaries of American Republics are Republic Production Company, which is engaged in the production and sale of crude oil; Petroleum Naviga- tion Company, which owns and operates four seagoing ships for the transportation of oil and petroleum products; and Intracoastal Tow- ing and Transportation Company, which owns. and operates a fleet of tugboats in the Houston area. American Republics also owns AMERICAN PETROLEUM COMPANY 693 other subsidiaries 1 engaged in the manufacture of steel tanks, refinery equipment and other steel products. The respondent purchases some of its oil from Republic Production Company and part of its finished product is transported on ships of Petroleum Navigation Company. All the crude oil processed at the respondent's refinery is produced in Texas. The crude oil is brought to the plant by pipe line, by ship from the coastal oil fields, and also in relatively small quantities by tank car. The respondent owns a two-thirds interest in a pipe line which extends from Hull, Texas, to the refinery.2 In addition to its refinery business, the respondent stores crude oil received from other companies, and at their orders delivers it to ships at the respondent's dock. The pipe lines through which this oil is brought to the plant are not owned by the respondent. Total storage capacity at the plant for crude oil and refined products is 2,200,000 barrels. The refinery has facilities to process approximately 7,000 barrels of crude oil daily, with a yield of approximately 6,500 barrels of refined products. Dur- ing the 13-month period ending August 31, 1937, the respondent sold and shipped from its plant 2,926,609 barrels of crude oil and petro- leum products. Of this total a small percentage was sold to buyers in Houston for local consumption. Approximately 80 per cent was loaded at the respondent's dock aboard ships which went down the Houston Ship Channel into the Gulf of Mexico. Substantially all the crude oil and petroleum products thus shipped from the respond- ent's dock were destined for points outside Texas. Officials of the respondent testified that these sales provided for delivery to ship's rail, and claimed that they were unable to state from their own knowledge that the shipments actually proceeded to the points outside the State of Texas for which they were destined. The record leaves no doubt, however, that substantially all of the crude oil and petroleum products placed aboard ships at the respondent's dock were actually transported to other States, or to foreign countries. II. THE ORGANIZATIONS INVOLVED Oil Workers International Union, Local No. 227, is a labor organi- zation, affiliated with the Committee for Industrial Organization. The territorial jurisdiction of Oil Workers International Union, Local No. 227, extends over a portion of the Houston area. The local also has branches in two other cities. It admits to membership all em- 1 These subsidiaries are listed as follows in an excerpt from Moody 's Manual of Invest- ments introduced at the hearing : Petroleum Iron Works Co. of Ohio, engaged at Petroleum, Ohio, in the manufacture of steel storage tanks, refinery equipment , and heavy riveted and welded pipe; Petroleum Iron Works Co. of Texas, which manufactures similar products at Beaumont, Texas ; and Pennsylvania Shipyards, Inc., which owns and operates a shipbuilding and repair plant and marine railway at Beaumont, Texas. c The respondent also owns a one-half interest in a small local pipe line in Tyler and Hardin Counties. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees at the respondent's plant, excluding supervisory and clerical employees. The local union was organized in 1918 as Local No. 227 of International Association of Oil Field, Gas Well and Refinery Workers of America, herein called the International Association. The International Association was affiliated with the American Fed- eration of Labor until 1936, at which time it became affiliated. with the Committee for Industrial Organization. Early in June 1937, the International Association changed its name to Oil Workers Inter- national Union. Early in the hearing, counsel for the Board moved to amend the complaint by inserting after the words "Oil Workers International Union, Local No. 227," wherever they appeared in the complaint, the words "formerly known as International Association of Oil Field, Gas Well and Refinery Workers of America, Local 227." Over ob- jection by counsel for the respondent, the motion was granted. Since both the international and local bodies retained their identity, struc- ture, officers, and membership after the International Association be- came affiliated with the Committee for Industrial Organization, and after the change in name, the objection is without merit. Numerous objections were made by the respondent to admission of evidence con- cerning the activities of Local No. 227 of the International Associa- tion on the ground that the Oil Workers Union was a different organ- ization. For the reasons above stated, we think these objections were properly overruled by the Trial Examiner. Local No. 227 of the - International Association will be called herein the Oil Workers Union. Employees' Federation of the American Petroleum Company is an unaffiliated labor organization, whose membership is confined to em- ployees of the respondent at its Norsworthy, Texas, plant. International Brotherhood of Boilermakers, Iron Shipbuilders, Welders and Helpers of America is a labor organization affiliated with the American Federation of Labor. It admits to membership boiler- makers, welders, boilermaker helpers, and welder helpers employed in the respondent's plant. III. THE UNFAIR LABOR PRACTICES A. Background of the respondent's policy toward labor organizations The evidence in the record concerning the alleged unfair labor practices must be viewed against the background of the respondent's policy toward the organization of its employees for the purposes of collective bargaining. In 1933, an organization was formed entitled "Employe Representation Plan of American Petroleum Company," herein called the E. R. P. According to the E. R. P. Articles, the organization operated through a Council composed of three employee AMERICAN PETROLEUM COMPANY 695 representatives, elected by the employees, and an equal number of management representatives, appointed by the management. With- out further detail, it is sufficient to say that the Articles bear the es- sential characteristics of "company-union" Articles which we have discussed at length in previous decisions.3 Apart from the Articles themselves, other evidence in the record plainly establishes that the E. R. P. was initiated, controlled, and supported by the respondent. In a letter dated October 11, 1934, to the Petroleum Labor Policy Board, herein called the Petroleum Board, a Federal agency established to administer the provisions of Section 7 (a) of the National Industrial Recovery Act in the petro- leum industry, T. J. Arnold, the respondent's attorney, said, "This Company initiated the Employees' Representation Plan in an effort to provide machinery to conform with the National Industrial Re- covery Act." Employees who took a leading part in organizing the Federation, as well as members of the Oil Workers Union, testified that the E. R. P. was a "company union." When an election for employee representatives was held in September 1934, the respondent furnished the ballots at its own cost. At this time, C. T. Carnes, treasurer of the respondent, was chairman of the E. R. P. Council. It is clear that the respondent initiated and supported the E. R. P. in order to control the means and methods whereby its employees might seek to bargain collectively. Apparently, however, the E. R. P. was not successful, for it was abandoned after an existence of little more than a year. Beginning in 1934, the respondent's policy toward labor organiza- tions was plainly revealed by a long series of other acts.4 On July 26, 1934, the officers of the Oil Workers Union sent a letter to the respondent stating that 161 of its employees had signed a- petition designating the parent body of the Oil Workers Union as their col- lective bargaining representative. At this time, the total number of employees was approximately 180. The letter requested recogni- tion as bargaining agent for those employees who had signed the petition, and proposed a conference to discuss a contract. T. J. Arnold, the respondent's attorney, replied by letter dated July 31, 1934, which contained the following language : S See, e. g., Matter of International Harvester Company and Local Union No. 57, Interna- tional Union, United Automobile Workers of America, 2 N. L. R. B . 310; Matter of Pennsylvania Greyhound Lines, Inc., Greyhound Management Company, Corporations and Local Division No. 1063 of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, 1 N. L. R. B. 1, order enforced in National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., 303 U. S. 261 (1938). A The respondent objected on numerous occasions to the admission of evidence concern- ing events which took place prior to the passage of the Act. The Board has held in pre- vious decisions that such evidence is admissible to show the background of practices occurring subsequent to the passage of the Act . See, e. g., Matter of Pegnsylvania Grey- hound Lines, Inc, supra, footnote 3. 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD My client, the American Petroleum Company, has referred to me your letter of July 26th, 1934. The Company in its relations with its employees, does not recognize the right of any person, group, or organization other than the individual employees themselves or representatives from their own number, duly chosen by the employees and authorized to act as such in representing them on all matters arising be- tween them and the Company. Therefore, I have advised the Company to decline to treat with you or your organization, as an organization with which the Company has no relations what- soever, contractual or otherwise. The Company is now as it has always been in the past, ready and willing to deal with its individual employees or through duly elected and authorized representatives from their own number on all matters affecting or thought to affect their inter- ests. However, such individuals or representatives must be bona fide employees of the Company and in dealing with the Com- pany, must act only in the capacity of employees or as the repre- sentatives of such and not as representatives of outside organiza- tions or groups. In August 1934, the Oil Workers Union renewed its request, to which Arnold replied that he had "nothing further to add to my letter to you of July 31st." On September 7, 1934, an E. R. P. election was held among the respondent's employees. This was a preliminary election, the pur- pose of which was to nominate candidates to be placed on the ballot in a subsequent election for employee representatives. Of 169 em- ployees who voted, 146 wrote in the Oil Workers Union on their ballots. On September 11, 1934, the final election was held. The Oil Workers Union did not appear on the ballot, which contained only the names of individual employees designated in the nominating election. Only 23 employees voted. We regard these E. R. P. elec- tions as a further indication that the respondent pursued a policy of uncompromising refusal to deal with an "outside" labor organization, although it represented the wishes of a majority of the employees.5 At the request of the Oil Workers Union, on November 21, 1934, the Petroleum Board conducted an election among the respondent's employees. Of the 137 employees who participated, 116 voted to be represented for collective bargaining by the Oil Workers Union, 12 voted to be represented by the E. R. P., and 9 voted to represent themselves. The Petroleum Board certified to the parties that the Oil Workers Union had been designated as collective bargaining 5 The respondent had notice that the Oil Workers Union was designated by a majority, since the results of the nominating election were certified to the chairman of the E. It. P. Council, who at that time was C. T. Carnes, the respondent's treasurer. AMERICAN PETROLEUM COMPANY 697 agency for the respondent's employees. On December 27, 1934, the Oil Workers Union wrote to the respondent, calling attention to the certification, and requesting a conference for the purpose of negotiating a collective bargaining agreement. On January 2, 1935, Arnold replied, stating that the respondent's position was set forth in the letter of July 31, 1934, and that "there has been no change since that date." A hearing was held by a representative of the Petroleum Board at Houston, Texas, on February 26, 1935, to determine whether the respondent had refused to bargain collectively with the representa- tives of its employees. The Petroleum Board rendered its decision on April 9, 1935. It found that "the American Petroleum Company has violated Section 7 (a) of the National Industrial Recovery Act, as embodied in Section 7, Article II of the Petroleum Code." The Oil Workers Union again requested a conference with the respondent for the purpose of collective bargaining. To this Arnold replied, on April 30, 1935, denying the request. On October 8, 1935, after the effective date of the Act, the Oil Workers Union secretary again wrote to the respondent and on October 30, Arnold replied, stating that the respondent did not "tcome within the purview of the National Labor Relations Act," and repeating the language, quoted above, which appears in Arnold's letter of July 31, 1934. On January 17, 1936, the Oil Workers Union once again wrote to the respondent, stating that 102 of the respond- ent's employees had signed a petition designating the officers of the Oil Workers Union as their bargaining agents pursuant to the rights conferred by the National Labor Relations Act. The record shows that 102 constituted a majority of the employees.6 The letter requested a conference for the purpose of negotiating a collective bargaining agreement. To this there was no reply.? 9 The record shows the number of employees at the plant as of November 1934 and as of June 1937. One hundred and two constituted a majority on each of these dates, and since the respondent's superintendent testified that the turn-over among the employees was very small In the year or two preceding the hearing , there Is a sufficient basis for finding that 102 constituted a majority on January 17, 1936. ° C. P. Humburg, secretary of the Oil Workers Union , identified a document offered In evidence as a carbon copy of a letter from the union officials to the respondent's general manager , dated January 17, 1936, and testified that the letter was mailed. He testified that he could not recall any reply, and that there was no reply in his file. He was not positive, however , that the file was complete . Counsel for the Oil Workers Union formally requested the respondent's counsel to produce the original of the letter, to which the respondent's counsel replied, "We have no record so far of ever receiving any such letter. If we can find It in any place at all , I invite you to resort to a subpoena duces tecum to get It." The document was thereupon received in evidence . Subsequently Irvine, the respondent's president, testified that he did not recall seeing such a letter, that in January 1936 he was vice president , and that the matters contained In the letter did not come under his jurisdiction . The individuals who served as the respondent's president and manager, respectively, In January 1936 were not called to testify and the respondent did not assert that they were unavailable. Under the circumstances, we find that the letter of January 17, 1936, was actually sent to the respondent, and that the respondent received it and made no reply. 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Evidence that the respondent's policy of opposition to outside unions generally and the Oil Workers Union in particular, and of preference for an inside organization, continued without change subsequent to the events outlined above is afforded by the testimony of T. A. Champion, a member of the Oil Workers Union, who was employed by the respondent until he was laid off on November 18, 1936. Champion testified that no reason for the lay-off was given him, but that subsequently in a conversation with his foreman, Nor- man Newsome, he was told : A. The last time I talked to him (Newsome) about it he said he didn't see any reason why I couldn't go back to work after Mr. Hovey (the superintendent) left, unless I was laid off on account of union activities, and that if I was he couldn't do me any good. Champion's testimony was corroborated in substance by that of P. V. Bieberstein, a member of the Oil Workers Union, who testified : Well, I asked Mr. Newsome the reason why Mr. Champion was let out and he said ... I think I will be able to put Mr. Cham- pion back on if Mr. Hovey leaves but I can't get him back on until then on account of his union activities. Since Newsome was not called to testify at the hearing, the testi- mony of Champion and Bieberstein is uncontradicted. These con- versations took place between November 18, 1936, and January 1937, when G. L. Hovey, the superintendent, was succeeded by S. J. Bell. The complaint did not allege, and we do not find, that Champion was discriminatorily laid off within the meaning of Section 8 (3) of the Act. We regard the above testimony, however, as establishing that at the end of 1936 the respondent's policy of hostility to the Oil Workers Union was in full force and known and followed by the respondent's foremen. There is no ground to believe that the respondent thereafter abandoned its position. On the contrary, the testimony of Irvine, the respondent's president, made it clear that at the time of the hear- ing, he was still vigorously opposed to the Oil Workers Union : Q. (By Mr. MANDELL.) It has been the policy of your com- pany, has it not, Mr. Irvine, never to recognize a union that has any outside affiliation? A. Our policy on employees is to deal with the employees and look to their advantage as well as the company's, and as far as an outsider butting into our business, I don't know whether we would do it or not; I don't think we would, but I don't know. It is something we would take up at the time. Q. Certainly that has been your policy in the past, hasn't it? AMERICAN PETROLEUM COMPANY 699 A. I don't know. I would not personally let an outsider tell me what our employees do. That is something to take up at the time. Q. That is how you feel now about the Oil Workers Union, don't you? A. Let the case come up and we will take it up at the proper time, whenever it is brought up. At another point in the record, counsel for the Oil Workers Union inquired if the policy outlined in Arnold's letter of October 30, 1935, was still followed. To this Irvine replied, "Up till now we will only deal with our employees , that is right." Irvine also testified as follows : Q.... You didn't keep it a secret, Mr. Irvine , of the fact that you didn't want any outside interference , like you testified here a few days ago? A. I didn't even discuss it. Q. You did tell us, however, that you didn't want any outside interference? A. I think I testified that I didn't want any outsiders to come into our plant and tell our men what to do. I think I did testify to that effect. Q. And you had reference to the union? A. Anybody. Q. Including the Union? A. Anybody. That includes anybody. Q. And that includes the Union? A. That includes everybody who has no authority there. Despite the evasive character of this testimony, it is plain that at the time of the hearing, the respondent adhered to its policy of opposition to outside unions. Against this background of labor history occurred the formation of the Federation. The role of the respondent in the organization of the Federation must be appraised in the light of this policy of expressed antagonism toward outside labor groups and of avowed preference for the unaffiliated type of organization. B. Domination of and interference with the Federation; inter f erenee, restraint, and coercion The Federation made its appearance in May 1937, about 5 weeks after the United States Supreme Court's decisions upholding the con- 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stitutionality of the Act.8 J. D. Gilbert, an employee, claims to have conceived the idea of forming an unaffiliated labor organization among the respondent's employees in March 1937. Gilbert testified that at that time he broached his idea to Mayo, a foreman, who ex- pressed his approval and agreed to type a petition which Gilbert had drafted; that on the following day Mayo told him that he had spoken to La Due, a foreman, and to Superintendent S. J. Bell and that Bell and La Due had said that the respondent "didn't want to have any- thing to do with it at all"; that Gilbert, feeling that the respondent was opposed to his idea, thereupon dropped it until he revived it 2 months later, in May. Neither Mayo, La Due, nor Bell gave testi- mony corroborating Gilbert's testimony concerning his actions in March. In fact, Bell testified that "the first knowledge" he had "that they were contemplating organizing an Employees Federation" was when he learned late in May about the steps then being taken to form the Federation. We do not believe Gilbert's testimony and regard it as a fabrication intended to conceal the connection between the Su- preme Court decisions and the formation of the Federation. About May 20 Gilbert drafted a petition, which was typed for him by R. G. Casaday, clerk-stenographer to the plant executives, S. J. Bell and J. B. Joyce. The typed material on the petition reads as follows : To the Management of the American Petroleum Company : We, the undersigned, being employees of the American Petro- leum Company Refinery at Norsworthy, believe that an organi- zation of the employees for the purpose of electing representa- tives from the several different departments for the purpose of dealing with the management on policies pertaining to working conditions and wages, would be to the best interest of both the management and the employees, hereby respectfully petition the management for recognition. Gilbert asked Syfan, a foreman, for permission to circulate the pe- tition. Syfan called the matter to the attention of Bell, the superin- tendent, who refused either to approve or to disapprove. Syfan re- ported Bell's reaction to Gilbert. The circulation of the petition was then begun. The leading part in securing signatures was taken by two employees, W. G. Morelock and J. G. Cullinan. The primary motive of Gilbert, Morelock, and Cullinan was to forestall an organi- zation drive of the Oil Workers Union, which was then taking place, 8 National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U. S. 1 ; National Labor Relations Board v. Fruehauf Trailer Co., 301 U. S. 49; National Labor Relations Board v. Friedman-Harry Marks Clothing Co., 301 U. S. 58; Associated Press v. National Labor Relations Board, 301 U. S. 103 ; Washington, Virginia and Maryland Coach Co. v. National Labor Relations Board, 301 U. S. 142. AMERICAN PETROLEUM COMPANY 701 by securing recognition for the inside organization. Signatures to the petition were solicited from the employees on company time and property with the knowledge of supervisory employees." Gilbert testified that he proceeded to form an inside union in May because he was impressed with the progress of the membership cam- paign which was then being conducted by the Oil Workers Union and that he said to himself "To hell with the Company" and revived the plan which he claims to have conceived in March and to which he thought the respondent was opposed. We have already found that Gilbert neither conceived his plan nor took steps to form an in- side union in March. Moreover, there is nothing in his testimony, even if true, which justifies his alleged feeling of opposition on the part of the respondent, since, according to his own testimony, the respondent merely refused to participate in the formation of an inside union. Moreover, the conduct of Gilbert and his associates in circulating the petition in May, under the circumstances set forth above, is not consistent with Gilbert's assertion that he thought he was proceeding in the face of opposition by the respondent. Morelock and his associates in their organizing campaign violently attacked the C. I. O. and emphasized the virtues of an inside union, Within a few days, 79 signatures to the petition were obtained.', Morelock went to Bell, showed him the petition, and asked where he could secure information concerning the formation of a labor organi- zation among employees at the plant."' Bell said he had no such information, but arranged an appointment for Morelock to see J. Y. Powell, the respondent's attorney. When Morelock saw Powell, the latter refused to give any information or to refer him to any source of information. Morelock then consulted an attorney, James E. Win- 0 Several members of the Oil Workers Union testified that the petition was circulated in the presence of foremen and that the foremen did not interfere . Witnesses for the Fed- eration admitted that they had circulated the petition openly and during working hours, but testified that they had been careful not to allow the foremen to see what they were doing. The foremen who appeared at the hearing denied that they had seen the petition circulated . Since it is undisputed that signatures to the petition were solicited openly and during working hours , we find it difficult to believe that none of the foremen were aware of what was taking place. An Oil Workers Union member testified that L. H. Chandler, a foreman, had signed the petition during working hours. Chandler, whose name appears on the petition , did not testify at the hearing . E. F Mayo, a foreman, testified that be had signed the petition on company property . Although it was called to his attention that his name does not appear thereon, he insisted that he had signed a similar petition shortly prior to June 1. Since the signatures on the petition were written in pencil , we think that Mayo signed it and ' that his signature was subsequently erased. It is significant that Morelock , although he testified that he did not solicit signatures in the presence of the foremen , admitted on cross-examination that "They knew what I was doing." Under all the circumstances , we find that some of the foremen had knowledge that the petition was being circulated on company time. 10 On June 1 there were 155 employees at the plant, including the manager and super- intendent, and clerical and supervisory employees. n Bell testified that Morelock asked how he could get in touch with the National Labor Relations Board in order to secure such information . Morelock testified that he asked for information , and did not recall that "the Wagner Act" was mentioned. 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD born, who agreed to conduct an election at the plant to determine whether a majority of the employees desired to be represented by the Federation for purposes of collective bargaining. On June 1 the election was held, on plant property, in a small building near the gate known as the clock house, where the time clock was located. On June 5 Morelock requested recognition of the Federation as collective bar- gaining agency, in a conference with Bell and Arnold, who at this time was vice president as well as attorney for the respondent. More- lock presented Arnold with the petition and a letter from Winborn certifying the r6sults of the election.12 According to the certifica- tion, 92 employees participated, of whom 75 voted for the Federation, 12 voted against the Federation, and 5 mutilated their ballots. Arnold checked the names on the petition with the pay roll, but made no further investigation. After requiring Morelock to deliver a written request for recognition, he prepared and signed a letter recognizing the Federation as collective bargaining agency for the respondent's employees, and handed it to Morelock. Morelock posted the letter of recognition inside the time clock. Although the respondent contends that it recognized the Federa- tion because it was presented with convincing evidence that the Fed- eration represented a majority of the employees in an appropriate unit, it is clear, from the findings made below in this Decision, that as of June 1, 1937, the appropriate unit consisted of 131 employees,13 and that, after excluding employees not within the appropriate unit who signed the petition and voted in the election, only 70 signed the petition and only 64, or less than a majority, voted for the Federation in the election. Accordingly, since the petition was circulated during working hours with the knowledge of foremen, and since the one-sided election was held on plant property, the respondent's contention that the Federation majority was proved by convincing evidence must be rejected. On June 7 at a meeting of the Federation in a local high school, Morelock and Gilbert were elected president and secretary-treasurer, respectively, and representatives were elected, one for each of six departments into which the plant was divided. Late in June, the Federation adopted Articles governing its structure and operation, On June 15, the respondent granted, in substance, certain requests made by the Federation for adjustments in wages and working condi. tions. No formal contract was signed; the respondent merely incor- porated in letter form statements of its policy regarding wages and specific working conditions. ' Winborn also gave Morelock a similar letter addressed to the employees , which More- lock posted in the time clock. 13 This figure is confined to persons employed at the plant, and does not Include a few employees who worked on the respondent 's pipe-line. AMERICAN PETROLEUM COMPANY 703 It appears, therefore, that the Federation sprang into being and achieved its objectives almost overnight. The respondent had per- sistently refused to negotiate with the Oil Workers Union, though charged with knowledge 14 that that organization represented a major- ity of its employees. It had adopted and pursued a policy of hostility to outside unions and of expressed preference for an inside organiza- tion. It can hardly be doubted that the employees, certainly those employees who were members of the Oil Workers Union when the respondent had refused to negotiate, were keenly aware of the re- spondent's policy;15 and, as we have found above, the respondent's foremen knew of and followed this policy. The respondent had taken no steps to inform its employees of any modification or abandonment of its policy. According to the record, the latest written expression of the respondent's policy occurred in October 1935, more than a year and one-half prior to the formation of the Federation. But during the intervening period, nothing had taken place which might have suggested to the employees that the respondent had departed from its policy. In fact, the respondent's policy had continued unchanged, as indicated by the testimony of its president, quoted above, and the statements set forth above, by Foreman Newsome. The minds of the employees were thus prepared over a period of years for the forma- tion and acceptance of an inside organization. The Federation was precisely the type of organization which the respondent had indicated that it preferred, and the only kind that it would deal with. In a recent Decision le this Board has said : Upon the record before us we are convinced that the formation of the Association, followed, as it was, by a rapid, vigorous growth of that organization, can only be attributed to the re- spondent's acts in diverting and confining the desires of its employees into and within the channel of an inside union. Where an employer thus limits his employees to a particular form of labor organization and upon such limitation being im- posed, a labor organization of the prescribed pattern springs into being, such an organization, in the absence of any showing to the contrary, must be presumed to reflect, in that respect, the will of the employer. Such an organization is not the result of a free choice, but one whose formation has been interfered with and dominated by the employer, within the meaning of the Act. la In September 1934 at the time of the E. R. P. nominating election , and in December 1934, when the results of the Petroleum Board election were certified to the respondent. See footnote 5, supra. 15 The record shows that on June 1, 1937 , the overwhelming majority of the employees had worked at the plant prior to the earliest expression of the respondent's policy, in July 1934. "'Hatter of Crawford Manufacturing Company and Teztile Workers Organizing Com- mittee, 8 N. L R. B. 1237. 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although the respondent in the present case did not call a meeting of its employees and express to them its hostility to outside unions and its preference for an inside union, as was done in the case from which we have quoted, there can be no doubt that its attitude was perfectly clear to the employees. Under the circumstances disclosed by the record, therefore, the existence of a strong and well-defined policy of antagonism to outside unions and of preference for an inside organi- zation, the springing up of an inside organization at a time when the outside union was conducting a campaign for new members, the rapid growth of the inside organization, and the prompt granting of recognition by the employer upon claims of majority representation resting upon exceedingly dubious evidence, must be viewed as strong indications that the form of the Federation was prescribed by the respondent, and hence that the formation of the Federation was interfered with and dominated by the respondent, within the meaning of the Act. The record contains other evidence that the respondent, through its supervisory employees, interfered with and supported the forma- tion of the Federation. Although the foremen and other supervisory employees, who testified, refused to admit that they were aware of the respondent's policy toward labor organizations, their actions in disparaging the Oil Workers Union and in assisting the growth of the Federation show that they endeavored to carry out the wishes of the management. Zeb Atcheson, an employee, testified that in May 1937, his foreman, Mayo, asked him if he was a member of the Oil Workers Union. Atcheson replied that he was. Mayo then said : A. He said, "Well, don't you know that if you fellows keep on organizing here that we are going to have to make it tough on you?" and I said to him, "Why?" and he said, "Because the big shots are going to make it tough on us and we will have to." Mayo denied making such a statement. He admitted that he -might have talked to Atcheson about union matters, but testified that he could not recall any conversation of that nature with Atcheson. Mayo was strongly biased in favor of the Federation. He hoped that the Fed- eration would secure recognition as collective bargaining agency. His testimony shows that in May and June of 1937, he had an impres- sion that the management was opposed to outside unions. In view of this belief, of his strong bias in favor of the Federation, and of his admission that he might have talked about unions to Atcheson, we find that Mayo made the statement with which he was charged. W. L. Ellis, an employee, testified that R. L. Dewease, a foreman, came to his place of work before June 1 and asked him what he thought of the Federation. Ellis replied that he thought little of it, where- AMERICAN PETROLEUM COMPANY 705 upon Dewease said, "Well, I am telling you fellows, if the plant goes C. I. 0., it is going to shut down." According to Ellis, this conver- sation took place at the end of his shift, in the presence of the em- ployee who relieved him, K. B. Rousselle. Rousselle corroborated Ellis' testimony. Dewease testified that Ellis approached him and asked him what he thought of the Federation and that he replied that because of the labor troubles prevalent throughout the country, he feared there might be a sit-down strike at the plant, in which event the employees would be out of work. He denied that Rousselle was present. In view of Dewease's admission that a conversation of this nature actually took place, and the highly evasive character of De- wease's testimony, we accept Ellis' version of the incident, corrobo- rated in detail by Rousselle. Dewease's remark was plainly calcu- lated to impress upon the employees that the management was opposed to the Oil Workers Union and favored the Federation. Neal Terrell, an employee, testified that in June 1937, Galey, a member of the Federation Council, asked him to join the Federation, and when he refused, saying he "did not figure there was anything to it," Dewease, who was present, remarked, "There is a thirty million dollar company back of it." Terrell testified near the close of the hearing, and neither Dewease nor Galey was recalled to the witness stand. We find that Dewease made the statement attributed to him by Terrell. Counsel for the Federation and for the respondent en- deavored to show, by their questions, that this statement referred simply to the respondent's recognition of the Federation. Clearly, however, it meant that the respondent was supporting and assisting the Federation, We deem immaterial Terrell's admission on cross- examination that Dewease's statement did not influence or intimidate him into joining the Federation. The remark was of a kind which could reasonably be expected to exert a coercive effect. L. A. Cleghorn, an employee, testified that 2 or 3 weeks after the election, when a number of employees in the change house were dis- cussing the relative merits of the Federation and the Oil Workers Union, L. H. Chandler, a foreman, remarked that those who favored the C. I. O. ought to go to work at a plant where the C. I. O. was recognized as a collective bargaining agency. Chandler was not called to testify. We find that he made the above statement. The statement was an expression of hostility to the C. I. O. on the part of the respondent. Its force was not lessened by the fact that the Federation had been accorded recognition. In addition to the foremen, two other supervisory employees, W. J. (Jap) Shelton and Buck Hanks, aided in the formation of the Fed- 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eration.17 A. W. Fields, an employee who was a member of the Oil Workers Union, testified that Jap Shelton had warned him that Syfan, a foreman, wanted Fields to join the Federation and that Shelton had threatened him with demotion if he did not join ;18 and that he had overheard Shelton warn P. M. Atwell, another employee, to "get in line," that is, join the Federation, or lose his job. All this was denied by Shelton, who admitted, however, that when the witness asked his opinion concerning the rival organizations, he replied that he, per- sonally, favored the Federation.1° Hal Ansley, another member of the Oil Workers Union, testified that Jap Shelton had interrupted his work for 15 minutes to urge him to join the Federation. This also was denied by Shelton. We think that Shelton's denials are not to be credited. He signed the petition, voted for the Federation in the election, and subsequently joined the Federation. His son, Payton Shelton, an employee at the plant, was one of the leading figures participating in the formation of the Federation. It is clear from Jap Shelton's testimony at the hearing that he favored the Federation primarily because it was an inside organization. It is a reasonable inference that he expressed his feelings in the manner attributed to him by the Oil Workers Union witnesses. We find that W. J. (Jap) Shelton, by making intimidating statements and by urging employees to join the Federation, assisted in the formation of the Federation. Three employees who were members of the Oil Workers Union, Henry J. Stoner, J. B. Free, and Burney Riggs, testified that Buck Hanks urged them to vote in the election. In view of the circula- tion of the petition, the denunciation of the Oil Workers Union by the Federation organizers, and the omission of the Oil Workers Union from the ballot, a suggestion by a supervisory employee that a vote be cast could only be taken as a^ request for a vote in favor of the Federation. Free testified that when he told Hanks he had not voted, Hanks asked if he was not interested in keeping his job. Hanks was not called to testify. We find that Hanks made the state- ments accredited to him. Several employees who were members of the Oil Workers Union, including Fields, Ansley, Atcheson, and Free, testified that Shelton and Hanks were foremen. This was denied by the respondent's wit- nesses. It appears that these employees work at manual labor, and are subject to the orders of a foreman. However, each of them nor- mally supervises the work of at least one other employee, and fre- 11 The respondent's pay roll dated June 1, 1937, contains the names of two employees named Hanks. The record indicates that F. M. Hanks is Buck Hanks. "'The testimony of Fields suggests at certain points that the alleged conversation had reference to signing the petition. 10 Syfan also denied that he had told Shelton to see that Fields joined the Federation. Assuming that Syfan's denial is to be credited , it is quite possible that Shelton invented the statement by Syfan in order to make a stronger impression upon Fields. AMERICAN PETROLEUM COMPANY 707 quently directs a crew of employees. Shelton took Syfan's place early in 1937 when the latter was absent because of illness; he has a key to Syfan's office on the plant property. Irvine referred to Shelton as a subforeman or strawboss. Bell testified that Shelton and Hanks were strawbosses. Upon the entire record, we find that Shelton and Hanks are super- visory employees. Although they do not possess the power to hire and discharge employees, neither do the foremen. This power is vested in the superintendent. When a foreman is displeased with the work of one of his employees, he sends the employee to Bell, who may discharge him. The record indicates that Shelton would send an employee under his direction to Syf an, who might then order the employee to report to Bell. Hanks exercises similar authority. The night still foreman, Mayo, is considered inferior to the day still foreman, La Due, and sends unsatisfactory employees to La Due, who may order them to report to the superintendent. In this respect the strawbosses do not differ from one of the foremen. The plant personnel has various grades of supervisory employees, and the two strawbosses in question are lower in the scale than the foremen. Manifestly, however, their statements and activities with respect to labor organizations are taken by the employees as emanating from the management. They are vested with authority to give orders to certain employees. If an employee violates these orders or carries them out in a manner which the strawboss considers unsatisfactory, the strawboss will report his conduct, and the employee may be dis- charged. The strawboss thus occupies a position, in the minds of the respondent's employees, substantially similar to that of a foreman. All the employees, not only those who take orders from a particular strawboss, are quick to respond when the supervisor actively cam- paigns in favor of one of two rival labor organizations. They identify such activity with management policy. At the respondent's plant the employees were further influenced by the fact that the statements and activities of the strawbosses corresponded closely with the respondent's policy of hostility to outside unions and of prefer- ence for the unaffiliated type of organization. The respondent endeavored to show that the statements made by Shelton and Hanks did not exert an intimidating effect. Thus the three witnesses who testified regarding Buck Hanks admitted that they had either voted against the Federation or had not voted at all. Similarly, Ansley testified that Shelton "didn't put any pressure to me." These admissions in no way affect our finding that supervisory employees took an active part in the formation of the Federation, 169134-39-vol. 12-46 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereby making it known to the employees that the respondent was supporting and encouraging the growth of the Federation.20 We attach significance to the fact that Chandler and Hanks were not called to testify regarding the activities and statements attrib- uted to them. No effort was made by the respondent to show that these individuals were unavailable at the time of the hearing. The weight of the evidence, in our opinion, requires a finding that fore- men and other supervisory employees made statements to employees favoring the Federation and opposing the Oil Workers Union, thereby encouraging membership in the Federation and discouraging membership in the Oil Workers Union. The respondent also contributed assistance to the Federation in that its foremen joined that organization. In September 1937, at the time of the hearing, the following foremen were members of the Federation : Mayo, La Due, Shaw, Chandler, and Newsome. It is wholly possible that others should be included in this group, since no complete list was furnished.21 Mayo and La Due joined in June, Shaw in July. The record does not reveal at what time the others became members. Employees at the plant were inevitably influ- enced by the fact that their foremen joined the Federation.22 Their membership in the organization was an unmistakable sign of ap- proval to the employees subject to their authority, especially because the Federation was competing for membership with the Oil Workers Union. In the minds of the employees, the approval by the super- visors was naturally taken as a reflection of the respondent's policy. The effect on the employees was intensified by the fact that the foremen became members despite provisions in the Federation Arti- cles making foremen and assistant foremen ineligible to serve as representatives, and ineligible to vote in elections of representatives.23 We find that under the circumstances of this case the acceptance of membership by the foremen constituted a contribution of support to the Federation by the respondent. 20 See Matter of Emsco Derrick and Equipment Company (D & B Division) and Steel Workers Organizing Committee, 11 N. L. R. B. 79. ' At the hearing held on December 9, 1937, in the representation proceeding, a large number of Federation applications for membership, executed shortly before the hearing, were introduced in evidence . Among these were application cards signed by E W. Arm- strong, chief clerk, and by the following foremen : Shaw , La Due, Bond, Chandler, Mayo, and Newsome. 22 The record indicates that foremen are not eligible to membership in the Oil Workers Union. Mayo joined the Oil Workers Union in 1934 but soon dropped his membership. No foremen at the plant are members of that organization at the present time. zv Mayo testified that he joined the Federation because he understood that a sick-benefit fund would be set up. He admitted that so far as he knew no such fund had yet been established. Before La Due joined, Morelock told him that he would be eligible to receive the benefits to be derived from the Federation , but that he "couldn't take part in any activities in it." He testified that he joined because of the sick benefit, primarily, but admitted that he did not know whether or not the Federation had established such a benefit. Since the Federation dues were only 50 cents per month , we find it difficult to believe that the prospect of a sick-benefit fund would be highly attractive to the foremen. We find that Mayo and La Due in Joining the Federation were not motivated by a desire to participate in the sick-benefit fund. AMERICAN PETROLEUM COMPANY 709 The respondent further extended aid to the Federation by permit- ting the election to be held upon its property. Winborn was per- mitted to enter the grounds and to conduct the election throughout the day, although Joyce, the plant manager, learned from Morelock, early in the morning, that an election was being held on plant property. At the oral argument counsel for the respondent admitted that the evidence concerning the holding of the election on plant property, with the knowledge of Joyce, was evidence connecting the management with the formation of the Federation. Counsel urged that this evidence should not be deemed prejudicial to the respondent, in view of the explanation made by Joyce at the hearing. Joyce testified that when anything unusual occurred at the plant, he consulted one of the higher officials of the respondent. He re- garded the holding of the election as unusual, but testified that he did not consult any of his superiors because "in previous discussions it was my understanding from the higher officials of the company that we had no authority to interfere with those things." We do not regard this explanation as credible. In effect, Joyce testified that he believed that the Act compelled the management to permit one of two rival labor organizations to conduct an election on plant property. In view of the respondent's policy of hostility to outside unions, and in view of our findings that the respondent contributed assistance in various forms to the formation of the Federation, we are convinced that Joyce was motivated not by a belief that the Act did not permit him to interfere, but by a desire to favor the Federa- tion. It matters not that the Federation election was held at the same place as the Petroleum Board election in 1934. The latter was conducted by authority of a governmental agency, and the employees could freely express their choice, with confidence in the secrecy and impartiality of the election, despite the fact that it took place on plant property. The respondent likewise assisted and supported the Federation by recognizing it as collective bargaining agency. The ease with which the Federation secured recognition presents a meaningful contrast to the respondent's repeated refusals in the past to deal with the Oil Workers Union, despite clear and convincing proof that it repre- sented a majority. Arnold knew that the Federation was an inside organization, the only kind of organization which he, as the repre- sentative of the respondent, had made plain that the respondent would deal with. Although the respondent knew that the Oil Work- ers Union had members among its employees, and that at one time it represented a majority, Arnold took no adequate steps to assure him- self that the Federation was the independent choice of a majority of 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees. He relied upon the petition, the names on which he compared with the pay roll, and upon a certification of the election results by Winborn, whose impartiality was open to serious question, since his services as an attorney had been retained by Morelock. Arnold was evidently unimpressed by the fact that one foreman, five strawbosses,24 and most of the office employees had signed the peti- tion. He made no attempt to inquire into the conditions under which the petition was circulated. As we have already seen, the petition was circulated on company time with the knowledge of foremen. Nor did Arnold make even the most cursory investigation of the conduct of the election. Had he inquired, he could have learned that Winborn used an eligibility list prepared by Morelock;25 that Morelock also prepared the form of ballot, which called for a yes or no vote for the Federation as collective bargaining agency, with no place on the ballot for the Oil Workers Union ; and that Morelock was in the clock house at various times throughout the day, and was present, together with two or three other employees, when Winborn counted the ballots. Arnold was afforded notice, by Winborn's certification of the election results, that the ballot contained no space for the designation of the Oil Workers Union. It is clear that the respondent did not. grant recognition because it was presented with convincing evidence that the Federation represented a majority of the employees in an appro- priate unit. The unit which we find below in this Decision to be appropriate consists of all production and maintenance employees, employed at the respondent's refinery and upon its pipe lines, exclu- sive of office and clerical employees, foremen, strawbosses, and other supervisory employees. As of dune 1, 1937, there were 131 employees in the unit 26 Since nine of the employees who signed the petition were supervisory or clerical employees,27 the petition presented to u The petition was signed by Jap Shelton , Hanks , C. L. Duncan, John Robisheaux, and W. W. Kilgore. Robisheaux and Kilgore occupy positions similar to those of Shelton and Hanks. We find that they are strawbosses . C L Duncan is a pumper. When Dewease, his foreman, is not in the pump house, Duncan is a "pusher ," that is, a strawboss . The record does not reveal how frequently Duncan acts in this capacity , but since Dewease has charge of "stock, gauging, pump and boiler house," it seems clear that Dewease's absences from the pump house are not unusual We find that Duncan is a supervisory employee. 25 Morelock copied the names of hourly paid employees from the time cards near the clock, and relied upon his memory for the names of salaried employees. 26 This figure is confined to persons employed at the plant , and does not include the pipe- line employees. The figure is arrived at by deducting the names of supervisory and clerical employees from the respondent's list of 155 persons employed at the Norsworthy plant as of June 1, 1937 . The following names should be deducted : J. B. Joyce, the manager ; S. J. Bell, the superintendent ; the following foremen : John Allen, R. L. Dewease, L. I Fawcett , M. R. La Due. E . F. Mayo, N. Newsome, H. P. Sellers , C. E. Syfan, W. D Shaw, B . L. Bond, E P. Blanchette , and L. H. Chandler ; the following strawbosses: W. J. Shelton , F. M (Buck ) Hanks, W. W . Kilgore John Robisheaux, and C. L. Duncan; and the following office or clerical employees : E. W. Armstrong , Miss M. C. Burk, R. G. Casaday, C . S. Garnuch , and F. L. Waneck, Jr 27 F. M. Hanks, C. L. Duncan , John Robisheaux , C. S. Garnuch , F. L. Waneck , Jr., R. G. Casaday, L H. Chandler , W. J. Shelton, and W W. Kilgore. AMERICAN PETROLEUM COMPANY 711 Arnold indicated that not more than 70 of tie employees within the appropriate unit had designated the Federation as their representa- tive for purposes of collective bargaining. In the election, even fewer employees voted for the Federation as their representative. Arnold saw only Winborn's certification, and did not attempt to discover what employees had been permitted to vote. At the hearing there was introduced in evidence, however, the list of eligible employees prepared by Morelock, on which Winborn had checked those who voted. This list shows that a total of 11 supervisory and clerical employees were permitted to vote.28 Since the respondent asserts that the Federation majority was proved by the election results, we must deduct the number of ineligibles who were permitted to vote from the number of votes in favor of the Federation.29 Deducting 11 from the total of 75 votes for the Federation, we find that of 131 employees in the appropriate unit, only 64, or less than a majority, designated the Federation as their representative by voting in the election. The evidence which is relied upon by the respondent as justifying recognition of the Federation consisted, therefore, of a petition signed by 70 employees and an election in which the Federa- tion secured only 64 votes. We have already found that the appro- priate unit included at least 131 employees, that the petition was cir- culated during working hours with the knowledge of supervisory employees, and that Joyce, the respondent's manager, was aware that the election was being held on plant property. Under these circum- stances, the respondent is in no position to contend, as it does in its Exceptions, that it recognized the Federation as collective bargaining agency because Morelock presented convincing evidence that the Fed- eration had been chosen by a majority of the employees within an appropriate unit. On the contrary, the record clearly indicates that Arnold expressly refrained from scrutinizing closely the evidence of majority representation presented by Morelock and the conditions under which this evidence was obtained, and that he hastened to grant recognition because such action was in keeping with the re- spondent's policy of dealing only with unaffiliated organizations. Under the circumstances disclosed by the record, the recognition of the Federation must be regarded as a contribution by the respondent of assistance and support to the Federation. 28 F. M. Hanks, John Robisheaux, L. H. Chandler, W. W. Kilgore, C. L. Duncan, R. G. Casaday, C. S. Garnuch, F. L. Waneck, Jr., E. F. Mayo, Miss M. C. Burk, and W. J Shelton. 20 In assuming that the ineligibles voted for the Federation, we note that every one of the 11 ineligibles signed a Federation application for membership shortly prior to the hearing in the representation proceeding. Moreover, nine of the 11 ineligibles signed the petition, and Mayo, whose name does not appear on the petition , joined the Federation in June. 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We are impressed by the fact that the formation and recognition of the Federation occurred shortly after April 12, 1937, the date of the Supreme Court decisions upholding the constitutionality of the Act. The occurrence of these developments at this time is in accord with the pattern of the respondent's prior conduct when faced with Federal laws guaranteeing employees the right of self-organi- zation. When Section 7 (a) of the National Industrial Recovery Act was in effect the respondent, in purported compliance therewith, sought to defeat the right of its employees to self-organization by initiating and supporting the E. R. P. When that was unsuccessful, and a genuine labor organization, the Oil Workers Union, was se- lected by a majority of its employees, the respondent refused to deal with it, stating that it would negotiate only with an inside organization, even though the Petroleum Labor Policy Board found that the respondent thereby violated Section 7 (a) of the National Industrial Recovery Act. When the Act was passed the respondent refused to change its position, claiming that it did not come within the purview of the Act. But when the Supreme Court decisions made it clear that the respondent was subject to the provisions of the Act, an inside union, the kind of labor organization which the respondent had shown it preferred and the only kind with which it had been willing to deal, sprang up; the respondent permitted the one-sided election described above to be conducted on its prop- erty, and hastened to "comply" with the Act by recognizing the inside union as the collective bargaining agency for its employees, a procedure closely resembling its initiation of the E. R. P. in purported compliance with the National Industrial Recovery Act. The respondent, by pursuing a policy of hostility to outside unions and of preference for an inside union, by assisting the Federation through the acts of its foremen and other supervisory employees in becoming members thereof and in urging employees to join the Federation, by expressing opposition to the Oil Workers Union, by engendering fear of loss of employment for membership in the Oil Workers Union and activity in its behalf, by permitting the conduct Of the election on plant property, and by granting recognition to the Federation on the basis of evidence of representation which it had secured largely through assistance rendered by the respondent, has dominated and interfered with the formation and administration of the Federation and has contributed support to it. The respondent, by the acts above set forth, has interfered with, restrained, and coerced its employees in the exercise of their rights 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 AMERICAN PETROLEUM COMPANY 713 bargaining and other mutual aid and protection as guaranteed under Section 7 of the Act. C. The alleged refusal to bargain collectively 1. The appropriate unit The complaint, as amended at the hearing, alleged that all em- ployees at the respondent's refinery, except those engaged in a clerical or supervisory capacity, constitute a unit appropriate for the pur- poses of collective bargaining. The petition of the Oil Workers Union in the representation proceeding stated that the appropriate unit should consist of "all employees with the exception of office help and executives." The record is not clear as to whether clerical em- ployees are eligible to membership in the Oil Workers Union. How- ever, none of the office employees at the respondent's plant are members of that union. In accordance with our usual practice, we find that the office and clerical employees should not be included in the appropriate bargaining unit. Sessions, president of the Oil Workers Union, testified that the eligibility requirements of his union excluded supervisory employees, which he defined to mean those employed in an "official capacity." Humburg, the secretary-treasurer, testified that he did not• believe there were any supervisory employees among the members of the Oil Workers Union at the respondent's plant. It is clear from the record that the Oil Workers Union used the word "executives" to mean supervisory employees and desired to exclude such employees from the bargaining unit. The record discloses that not only the foremen but also the strawbosses are closely identified with the man- agement. We find that supervisory employees, including foremen and strawbosses, should be excluded from the bargaining unit. The record indicates that the respondent employs certain indi- viduals who work on the pipe line, away from the Norsworthy plant. The evidence concerning these employees is meager, and it is not clear that the Oil Workers Union desires to include them in the bargain- ing unit. Since they appear to have a community of interest with the employees who work at the plant, and since the Oil Workers Union did not specifically request their exclusion, we find that the employees who work on the pipe line, away from the Norsworthy plant, should be included in the unit. Neither the Oil Workers Union nor the respondent sought to exclude janitors, watchmen, and other non-production employees from the unit. We find that such employees should be included in the unit. In the representation proceeding the Boilermakers requested a separate craft unit for boilermakers, welders, and their helpers. 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. N. Davis, an officer of the Boilermakers who appeared at the hear- ing, testified that the requested unit would number approximately 15 or 20 employees. Davis relied largely upon the peculiar skill possessed by the boilermakers and welders as justifying their sepa- ration into a unit by themselves. He did not claim that the Boiler- makers had ever attempted to bargain with the respondent. The record does not reveal that any of the employees at the plant are members of the Boilermakers or have designated it to represent them. We find that the request for the designation of a craft unit must be denied.80 We find that the production and maintenance employees of the respondent, employed at its Norsworthy, Texas, plant, and upon its pipe lines, exclusive of office and clerical employees, foremen, straw- bosses, and other supervisory employees, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effec- tuate the policies of the Act. 2. The alleged refusal to bargain The complaint, as amended at the hearing, alleged that since June 1, 1937; the Oil Workers Union was the exclusive bargaining repre- sentative of the employees in the appropriate unit, and that on or about June 16, 1937, the respondent refused to bargain collectively with the Oil Workers Union as such representative. On June 1, 1937, there were approximately 131 employees in the appropriate unit."' Humburg, secretary-treasurer of the Oil Workers Union, testified that on June 16, 1937, he sent a letter to Joyce, stating that pursuant to the wishes of the majority of the respondent's employees, he was requesting a conference for the purpose of collective bargaining. Humburg testified that he was unable to offer in evidence the carbon copy of his letter, because a portion of his files dealing with the respondent had been stolen a few weeks before the hearing began. According to Humburg, no reply to this letter was made. The respondent introduced testimony that no such letter had been received and that it did not appear in its files. Humburg testified that his membership file cards showed that 107 of the respondent's employees 30 See Matter of Allis-Chalmers Manufacturing Company and International Union, United Automobile Workers of America, Local 248, 4 N. L. R. B. 159, 168; Matter of The Pure Oil Company and Oil Workers International Union Local 265, 8 N. L. R. B. 207. ffi This figure is confined to the employees working at the plant . The record does not reveal the number of employees working on the pipe line , away from the plant, although it indicates that this number is small. There was little or no change in the number employed , between June 1 and June 16. AMERICAN PETROLEUM COMPANY 715 were members of the Oil Workers Union at the time of the hearing. The Oil Workers Union did not offer the cards or other membership records in evidence. Humburg testified that at least 100 members were employees of the respondent on June 1. Other members of the Oil Workers Union em- ployed at the plant testified that 106 or 107 of the employees were members. For this testimony they relied partly upon the file cards, which they had examined, and partly upon their acquaintance with employees who were members. They also testified that they had attended "closed" meetings to which admission was confined to mem- bers employed by the respondent. Their estimates of attendance at these meetings ranged from approximately 55 to approximately 65. The evidence of membership introduced by the Oil Workers Union is not sufficient to show that it had been designated as representative for purposes of collective bargaining by a majority of the employees in the appropriate unit. Moreover, the evidence is very slight on whether a request for collective bargaining was made on June 16, 1937. Accordingly, the allegations of the complaint that the re- spondent had engaged in unfair labor practices within the meaning of Section 8 (5) of the Act will be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the re- spondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and with foreign countries, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we will order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. We have found that the respondent dominated and interfered with the formation and administration of the Federation and contributed support thereto. By such domination and interference the respondent has prevented the free exercise by its employees of their right to self-organization and collective bargaining. In order to effectuate the policies of the Act, to restore to the employees of the respondent the full measure of their rights guaranteed under the Act, and to free them from such domination and interference, and the effects thereof, which constitute a continuing obstacle to the exercise by the 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees of the rights guaranteed them by the Act we will order the respondent to withdraw all recognition from the Federation as representative of the respondent's employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, or conditions of work, and to disestablish it as such representative.82 In the election which we are directing in order to determine the exclusive bargaining representative of employees of the respondent, the name of the Federation will not appear upon the ballot. VI. THE QUESTION CONCERNING REPRESENTATION At both hearings, the Oil Workers Union claimed that it had been designated by a majority of the employees within the appropriate unit as their representative for the purposes of collective bargaining. This contention, which the Oil Workers Union also made in its peti- tion, was disputed by the respondent. We find that a question has arisen concerning representation of employees of the respondent. VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the respondent described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and with foreign countries, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VIII. THE DETERMINATION OF REPRESENTATIVES At the hearing held on December 9 , 1937, Humburg again testified that 107 of the respondent's employees were members of the Oil Workers Union. He also testified that he had in his possession 64 membership application cards executed by employees of the respond- ent shortly prior to the hearing. Four members of the Oil Workers Union, who had circulated the cards , testified that they had been executed in their presence by tFie respondent's employees . The Oil Workers Union did not, however , offer the cards in evidence. On December 1 , 1937, there were approximately 132 employees in the 82 See Consolidated Edison Co., Inc. et al. V. National Labor Relations Board, 59 Sup. Ct. 206 (1938 ), where the Court said: "The continued existence of a company union established by unfair labor practices or of a union dominated by the employer is a consequence of a violation of the Act and renders ineffectual any order restraining the unfair labor practices." AMERICAN PETROLEUM COMPANY 717 unit found to be appropriate.33 The record affords insufficient proof that the Oil Workers Union has been designated as collective bar- gaining agency by a majority of the employees within the appropriate unit. We find that the question which has arisen concerning repre- sentation of employees of the respondent can best be resolved by holding an election by secret ballot. Since we have found that the respondent has dominated and interfered with the formation and administration of the Federation and contributed support thereto, the evidence introduced by the Federation purporting to show that it had been designated as col- lective bargaining representative by a majority of the employees in the appropriate unit, is irrelevant. We will not at this time fix a date for holding the election, but will delay it until such time as we are satisfied that the effects of the respondent's unfair labor practices have been dissipated suffi- ciently to permit a free choice of representatives. At the time we direct such election we will determine the pay-roll date to be used in ascertaining the eligibility of employees in the appropriate unit to vote. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Oil Workers International Union, Local No. 227, and Em- ployees' Federation of the American Petroleum Company, are labor organizations within the meaning of Section 2 (5) of the Act. 2. The production and maintenance employees of the respondent, employed at its Norsworthy, Texas, plant and upon its pipe lines, exclusive of office and clerical employees, foremen, strawbosses, and other supervisory employees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. The respondent, by dominating and interfering with the forma- tion and administration of Employees' Federation of the American Petroleum Company, and by contributing support thereto, has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 4. The respondent, by interfering with, restraining, and coercing its employees in the exercise of the right to self-organization, to form, join, and assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual 33 This figure is confined to the employees working at the refinery , and does not include pipe-line employees. 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aid or protection, has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices constitute unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 6. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. 7. A question affecting commerce has arisen concerning the rep- resentation of the respondent 's employees, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the respondent, American Petroleum Company, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) In any manner dominating or interfering with the adminis- tration of Employees' Federation of the American Petroleum Com- pany, or with the formation or administration of any other labor organization of its employees, and from contributing support to said Federation or to any other labor organization of its employees; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purposes of collective bargaining or other mutual aid or protection. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from Employees' Federation of the American Petroleum Company as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work, and completely disestablish Employees' Fed- eration of the American Petroleum Company as such representative; (b) Immediately post notices in conspicuous places throughout its Norsworthy, Texas, plant, and maintain such notices for a period of sixty (60) consecutive days stating (1) that the respondent will cease and desist in the manner aforesaid, and (2) that it withdraws all recognition from Employees' Federation of the American Petro- leum Company as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor AMERICAN PETROLEUM COMPANY 719 disputes, wages, rates of pay, hours of employment, or conditions of work, and completely disestablishes it as such representative; (c) Notify the Regional Director for the Sixteenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Re- lations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 1, as amended, it is hereby DIRECTED, that as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with American Petroleum Company, Houston, Texas, an election by secret ballot shall be conducted within such time as the Board may hereafter direct, under the direction and supervision of the Regional Director for the Sixteenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III,. Section 9, of said Rules and Regulations, among all the respond- ent's production and maintenance employees employed at its Nors- worthy, Texas, plant and upon its pipe lines, who were employed by the respondent within a period to be determined by the Board in the future, but excluding office and clerical employees, foremen, straw- bosses, and other supervisory employees, to determine whether or not they desire to be represented by Oil Workers International Union, Local No. 227, affiliated with the Committee for Industrial Organi- zation, for the purposes of collective bargaining. MR. DONALD WAKEFIELD SMITH took no part in the consideration of the above Decision, Order, and Direction of Election.