Continental Oil Company

In the Matter of CONTINENTAL OIL COMPANY and OIL WORKERS INTERNATIONAL UNION Cases Nos. C-6,27 and R-653.-Decided May 9,1939 Oil Production and Refining Industry-Interference, Restraint, and Coer- cion-Company-Dominated Union: formation, upon suggestion of employer ; recognition by employer without proof of majority ; employer assistance in preparation for formation of labor organization ; disestablished , as agency for collective bargaining-Discrimination: transfer of two leading union employees on eve of extension of hours of work which had been subject of union negotiation-Unit Appropriate for Collective Bargaining : employees, exclusive of production foreman and clerical employees, but including head roustabouts, no controversy as to ; production and maintenance , exclusive of supervisory and clerical employees, no controversy as to-Representatives : proof of choice: peti- tion designating representatives as-Collective Bargaining : willingness to meet with union, but refusal to enter negotiations for a definite agreement ; refusal to grant exclusive recognition ; employer ordered to bargain despite subsequent loss of majority due to unfair labor practices ; charges of refusal to bargain dismissed in one case upon finding that union represented less than majority- Reinstatement : ordered-Back Pay: awarded together with restoration of in- surance rights-Investigation of Representatives : controversy concerning repre- sentation of employees : employer's refusal to recognize union-Unit Appropriate for Collective Bargaining : extent of organization ; unit limited to employees in field excluding employees in operation of gas plant Election Ordered Mr. David C. Shaw, for the Board. Mr. John R. Moran, and Mr. John P. Akolt, of Denver, Colo.; Mr. James J. Cosgrove, of Ponca City, Okla.; and Vogelsang, Brown, Cram, Feely & Finney, by Mr. William G. Feely, of Washington, D. C., for the respondent. Mr. David Rein, of counsel to the Board. DECISION ORDER AND DIRECTION OF ELECTION STATEMENT OF THE CASE On September 28, 1937, Oil Workers International Union, herein called the Union, filed with the Regional Director for the Seventeenth Region (Kansas City, Missouri) a petition alleging that a question 12 N. L. R. B., No. 87. 789 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affecting commerce had arisen concerning the representation of em- ployees at the Salt Creek Field, Columbine, Wyoming, of Continental Oil Company, Ponca City, Oklahoma, herein called the respondent, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Thereafter the Union filed charges alleging that the respondent had engaged in and was engaging in unfair labor practices within the meaning of the Act. On October 9, 1937, the National Labor Relations Board, herein called 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 of the question concerning representation and authorized the Regional Di- rector to conduct it and to provide for an appropriate hearing upon due notice, and acting pursuant to Article III, Section 10 (c) (2), and Article II, Section 37 (b), of said Rules and Regulations, further ordered the consolidation of the proceeding upon the peti- tion with the proceeding upon the charges filed by the Union. On November 16, 1937, the Board, acting in accordance with Article II, Section 37 (c), and Article III, Section 10• (c) (3), of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered the transfer of the consolidated proceedings from the Seven- teenth to the Twenty-second Region. On February 11, 1938, upon the charges and amended charges filed by the Union, the Board, by the Regional Director for the Twenty- second Region, issued its complaint against the respondent. Copies of the complaint and notices of hearing upon the complaint and upon the petition were duly served upon the respondent, the Union, Con- tinental Employees Bargaining Association, herein called the Salt Creek Association, and Independent Association of Conoco Glenrock Refinery Employees, herein called the Glenrock Association. The consolidated hearing was thereafter postponed upon notice. Upon further amended charges which were duly filed, the Board by the same Regional Director, on February 25, 1938, issued its amended complaint against the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting com- merce, within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the Act. Copies of the amended com- plaint accompanied by an amended notice of hearing were duly served upon the same parties. No amended notice of hearing was issued for the proceeding upon the petition, but the parties appear- ing at the hearing stipulated that proper notice of hearing had been given. With respect to the unfair labor practices, the amended complaint alleged in substance that the respondent (1) had on January 18, CONTINENTAL OIL COMPANY 791 1937, and at all times thereafter, refused to bargain collectively with the Union which had been designated as the exclusive representative by a majority of its employees in an appropriate unit at Salt Creek Field; (2) had on August 12, 1935, and at all times thereafter, refused to bargain collectively with the Union which had been desig- nated as the exclusive representative by a majority of its employees in an appropriate unit at Big Muddy Field; (3) had on August 12, 1935, and at all times thereafter, refused to bargain collectively with the Union which had been designated as the exclusive representative by a majority of its employees in an appropriate unit at the Glen- rock Refinery; (4) had discharged and refused to reinstate Ernest Jones and F. D. Moore, thereby discouraging membership in the Union; (5) had dominated and interfered with the formation and administration of the Salt Creek Association; (6) had dominated and interfered with the formation and administration of the Glenrock Association; and (7) by reason of said acts and by other acts, had interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On March 2, 1938, the respondent filed an answer to the complaint denying the unfair labor practices. At the hearing the complaint was further amended to allege that prior to June 12, 1937, the Union had acted under the name and designation of International Association of Oil Field, Gas Well and Refinery Workers of America. The respondent filed an answer to this amendment to the complaint. Pursuant to the amended notice of hearing, a hearing was held at Casper, Wyoming, from March 3 through 17, 1938, before Waldo C. Holden, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and partici- pated in the hearing. The Union, the Salt Creek Association, and the Glenrock Association did not enter formal appearances, but officers of these organizations appeared and testified at the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the close of the hearing, the respondent moved to dis- miss the proceedings in both cases on the grounds of lack of juris- diction and lack of evidence to support the allegations in the com- plaint. The motion was denied by the Trial Examiner. During the course of the hearing the Trial Examiner made several other rulings on motions and on objections to the admission of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On May 11, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon all parties. He found that the respondent had engaged in the unfair labor practices alleged in 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the complaint and recommended that the respondent : (1) cease and desist from said unfair labor practices; (2) bargain collectively with the Union as the exclusive representative of the employees in the appropriate units at Salt Creek Field, Big Muddy Field, and the Glenrock Refinery, respectively; (3) withdraw recognition from the Salt Creek Association and the Glenrock Association; and (4) rein- state with back pay F. D. Moore and Ernest Jones. He further recommended that the respondent post notice of its intention to cease and desist from said unfair labor practices and state in such notice its intention of taking the affirmative steps recommended in the report. On May 21, 1938, the respondent filed exceptions to the rulings of the Trial Examiner and to his Intermediate Report. On January 10, 1939, the respondent filed a brief, and on January 12, 1939, pursuant to notice duly served upon the parties, a hearing was held before the Board for the purpose of oral argument on the exceptions to the Intermediate Report and on the record. The respondent was represented by counsel and participated in the oral argument. None of the other parties appeared. The Board has considered the re- spondent's exceptions and its brief and in so far as the exceptions are inconsistent with the findings, conclusions, 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 I. THE BUSINESS OF THE RESPONDENT Continental Oil Company is a Delaware corporation engaged in the business of producing, refining, transporting, and marketing petroleum and petroleum products. It owns or controls oil- and gas- producing fields and refining plants in the States of Oklahoma, Kansas, Texas, New Mexico, Colorado, Utah, Montana, Wyoming, Arkansas, Louisiana, Arizona, California, and Maryland. It owns or controls outlets for the distribution and marketing of its products in 31 States and the District of Columbia. The areas of operation involved in the instant case, two oil-pro ducing fields and one refinery, are all located in the State of Wyo 3 The respondent, in its brief, contends that the denial by the Trial Examiner of an application for a subpena duces tecum for the membership rolls of the Association of Continental Oil Company Employees at Big Muddy Field was arbitrary and capricious and a denial of due process of law. The respondent makes no showing, however, that the membership rolls of this organization are in any way relevant to any of the issues in this proceeding, or that the denial of the application for a subpena in any way hindered the respondent in the presentation of its case. No such organization is named in the com- plaint, and the record is not clear that there is or ever was such an organization. The ruling of the Trial Examiner is accordingly affirmed. CONTINENTAL OIL COMPANY 793 ming. The oil-producing fields are Big Muddy Field, located at Parkerton, Wyoming, and Salt Creek Field, at Salt Creek, Wyoming. The refinery, known as the Glenrock Refinery, is situated at Glen- rock, Wyoming, a few miles from Parkerton. The respondent pro- duces approximately 1,000 barrels of crude oil daily at the Salt Creek Field, of which 650 barrels are produced for its own account. At the time of the hearing, these 650 barrels were being shipped to the Stanolind Oil and Gas Company pursuant to a contract of 6 months' duration. Prior to the date of this contract, the crude oil produced at Salt Creek was normally disposed of by shipments to the respondent's refinery at Denver, Colorado, to the Glenrock Refinery, and to the Texas Company at Casper, Wyoming. Approxi- mately 3,000 gallons of casing-head gasoline are produced daily at Salt Creek, all of which is shipped to the respondent's refinery at Lewiston, Montana. At Big Muddy Field, the daily production approximates 1,200 barrels of crude oil, only 900 barrels of which are produced for the respondent's account. The entire 1,200 barrels are shipped to the Glenrock Refinery. The Glenrock Refinery refines daily approxi- mately 2,500 barrels of crude oil and about 8,000 gallons of casing- head gasoline. Approximately 60 per cent of the products of the Glenrock Refinery are shipped to points outside the State of Wyoming. Fifty per cent of the total fuel oil produced at the Glenrock Refinery is sold to the Chicago & Northwestern Railroad and the Chicago, Burlington & Quincy Railroad. The annual value of the finished products shipped from the Glenrock Refinery approxi- mates $2,000,000. II. THE ORGANIZATIONS INVOLVED Oil Workers International Union is a labor organization affiliated with the Committee for Industrial Organization. Prior to June 1937 it bore the name of International Association of Oil Field, Gas Well and Refinery Workers of America. It assumed its present name at a convention held in Kansas City, Missouri, from June 7 to 12, 1937.2 The instant case involves Locals 242 and 233 of the Union. Local 242 admits to membership employees of the respond- ent employed at Big Muddy Field and at the Glenrock Refinery. Local 233 admits to membership employees of the respondent em- ployed at Salt Creek Field. 2 The change was only in name, and continuity in organization was preserved. Oil Workers International Union had the same central offices, the same president and other officials as International Association of Oil Field , Gas Well and Refinery Workers of America. Oil Workers International Union continued to use stationery and letterheads upon which the name, International Association of Oil Field , Gas Well and Refinery Workers of America appeared , until the supply of such stationery and letterheads had been exhausted. 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Continental Employees Bargaining Association is an unaffiliated labor organization admitting to membership employees of the re- spondent employed at Salt Creek Field. Independent Association of Conoco Glenrock Refinery Employees is an unaffiliated labor organization admitting to membership em- ployees of the respondent employed at the Glenrock Refinery, excluding those who have the power to "hire or discharge or repri- mand or punish." III. THE UNFAIR LABOR PRACTICES A. Big Muddy Field 1. The refusal to bargain collectively (a) The appropriate unit The complaint alleged that the appropriate unit at Big Muddy Field includes all production and maintenance employees. This allegation was not contested. From the testimony in the record, however, we believe it was the intention of the parties to exclude the production foreman and clerical employees.3 The position of the Union with respect to head roustabouts (or gang pushers) was not clearly stated at the hearing. However, the district representa- tive for the Union testified that head roustabouts were admitted into the Union at Salt Creek Field and that the rules of the Union made them eligible for membership. We will accordingly include head roustabouts in the appropriate unit. We find that all the employees of the respondent at Big Muddy Field, excluding the production foreman and clerical employees, but including head roustabouts, constitute a unit appropriate for the purposes of collective bargaining, and that such unit insures to these employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectu- ates the policies of the Act. (b) Representation by Local 242 of a majority in the unit In an election conducted by the Petroleum Labor Policy Board in July of 1934, Local 242 was certified as the collective bargaining agency for the employees at Big Muddy Field. Of 31 votes cast 8 The pay roll of the respondent for Big Muddy Field, which was introduced into evidence at the hearing, carried the name of J C Thomas, district superintendent . However, since his duties entail supervision not only over Big Muddy Field, but over Salt Creek and Lance Creek Fields as well, be cannot properly be regarded as an employee at Big Muddy Field. CONTINENTAL OIL COMPANY 795 in this election, 26 were cast for Local 242. Shortly after the passage of the Act, Local 242 circulated among the employees at Big Muddy Field a petition designating the Local as the collective bargaining agency. Of a total of 35 employees in the appropriate unit at the time, 28 signed this petition. At the time of the circulation of this petition, therefore, Local 242 clearly represented a majority of the employees in the appropriate unit. The respondent contends, however, that since the designation was of Local 242 of International Association of Oil Field, Gas Well and Refinery Workers of America, it cannot support an allegation of a refusal to bargain with Local 242 of Oil Workers International Union. Since Oil Workers International Union is the same organiza- tion as International Association of Oil Field, Gas Well and Refinery Workers of America, we find no merit in this contention. The respondent further contends both in its brief and in oral argument that even if the Union represented a majority of the employees at the time of the circulation of the petition, it did not represent a majority of the employees in the appropriate unit at the time of, the hearing. There is no evidence, however, that prior to May 1936, the date of the Union's last efforts at collective bargain- ing, any of the signers of the petition repudiated their signatures, or in any other way evidenced that they had withdrawn their desig- nation of the Union as their collective bargaining agency. Any subsequent loss of majority would not constitute a defense to a refusal to bargain at that time. Whatever relevance the loss of majority might have would be in connection with an order of the Board directing the respondent to bargain with the Union at this time. We will, accordingly, discuss this contention of the respondent in the section on the remedy, Section V, below. We find that on August 12, 1935, the date of its first attempt at collective bargaining after the passage of the Act and thereafter, the Union was the duly designated representative of a majority of the respondent's employees at Big Muddy Field in an appropriate unit and that pursuant to Section 9 (a) of the Act, was the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. (c) The refusal to bargain Shortly after the certification of Local 242 by the Petroleum Labor Policy Board, a workmen's committee of the Local, consisting of Ernest Jones, H. A. Schafer, and E. L. Simons, together with Albert D. Shipp, district representative of the Union, presented a proposed 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement to J. C. Thomas, superintendent of production for the Wyoming District. In response to this proposed agreement, the respondent, on or about September 18, 1934, issued a statement of working conditions for Big Muddy Field. Among other provisions, it contained the following policy: "No understanding between the company and any association of employees shall be considered bind- ing upon employees not members of such association." At the time of the issuance of this statement, R. S. Shannon, general superintendent of the respondent for the Rocky Mountain Division, announced that the respondent was ready to meet with any committee of its employees but would not recognize the Union as the bargaining representative for its employees. In addition, on September 15, 1934, the respondent addressed to all its employees at Big Muddy Field, individual letters concluding as follows : ... we are of the opinion that those who wish to be repre- sented by Local #240 (sic) of the International Association of Oil Field, Gas Well and Refinery Workers may do so, and that those who choose any other representatives, whether council, in- ternal employe organization or any other are entitled so to deal with the management. The management is prepared to deal with any such organization as the employes themselves, with- out management interference, choose to undertake. On March 22, 1935, the Union in a letter to Shannon took excep- tion to the refusal of the respondent to recognize the Union as the representative of its employees and to enter into a contract with the Union. As a result of this communication, a further meeting was held between the union committee and representatives of the respondent, at which Shannon reiterated the position of the re- spondent as stated on September 18, 1934. Although the foregoing acts occurred before the passage of the Act, and therefore do not constitute unfair labor practices, they represent the respondent's attitude toward collective bargaining, in which the respondent persisted even after the passage of the Act. On August 12, 1935, after the circulation of the petition in which the employees redesignated the Union as their representative, a letter was delivered to Bartels, production foreman at Big Muddy Field, informing the respondent of that fact and requesting a confer- ence for the purposes of collective bargaining. No answer to this request was received and on September 5, 1935, another letter re- questing a conference was delivered to Shannon. Pursuant to this second letter, a meeting was held on or about September 26, 1935. Jones, F. D. Moore, Simons, and Shipp were present for the Union, and Shannon and Thomas for the respondent. At the meeting, the union representatives told Shannon that they were the committee CONTINENTAL OIL COMPANY 797 for Local 242 of the Union, and that the Union had been designated as the bargaining agency for the employees at Big Muddy Field. They informed him that they had in their possession a petition signed by a majority of the employees and asked him if he desired to see it. Shannon replied that he considered the petition imma- terial and added that he raised no question as to whether the Union had been designated by a majority of the employees. A request that the Union be recognized as the exclusive bargaining agency was answered with the statement that the respondent maintained the same position as it had set forth on September 18, 1934, that it would not recognize any group of its employees as the exclusive bargaining agency, but was willing to meet with any committee of individual employees. Shannon further stated that the respondent would not enter into any agreement with the Union, not even to embody the provisions which the respondent had set forth in its own statement of working conditions on September 18, 1934. At this point the meeting adjourned. After a further exchange of letters had proved fruitless, the Union with the assistance of Michael E. Sherman, a conciliator for the U. S. Department of Labor, secured a further conference with the respondent on February 6, 1936, at which Thomas and Bartels were present for the respondent. A proposed contract presented by the Union was discussed and the parties came to an agreement as to working conditions, which were embodied in notes taken by Sher- man. Thomas stated that he could not bind the respondent to these conditions but that he would submit them to Shannon together with his recommendation for their approval. No further communication was received from the respondent with regard to this proposed agreement. On February 9, 1936, the Union requested the respondent to com- mence negotiations for a wage increase. On March 9 Shannon re- plied, stating that the request was not made at a propitious time since an increase "would constitute a serious threat to the progress and life of the Company." The letter added, however : "As I have previously advised you, and in line with my letter of September 18, 1934, Foreman Bartels, District Superintendent Thomas, and I stand ready to meet with you at any reasonable time for the dis- cussion of any subjects relative to working conditions in the Big Muddy field." In the last week of April, Moore and Jones, two members of the workmen's committee, were informed that they were to be trans- ferred to Hobbs, New Mexico. The committee called on Thomas and inquired as to the reasons for these transfers. The members were then informed for the first time that the respondent had decided to 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD increase the hours of work at the field, effective May 1, 1936, and that this decision necessitated a curtailment in the force. The com- mittee requested Thomas to postpone the transfers and the effective date of the increase in hours until a union committee could be heard on the matter. Thomas replied that he would communicate with Shannon and attempt to arrange a meeting. No meeting, however, was thereafter arranged, nor was the effective date of the increase of hours postponed. Thomas was then asked why Jones and Moore had been chosen to be transferred, to which he replied that he had had nothing to do with the transfers.4 When Thomas was asked at the hearing why he had made this statement when, according to his own testimony, he and Bartels had together selected Moore and Jones to be transferred, he testified : " . . . at the time it made me kind of sore and I didn't think it was any of their business." The last meeting between a union representative and a repre- sentative of the respondent took place in May 1936. Apparently as a result of a letter written by the Regional Director for the Sev- enteenth Region of the Board to Shannon, the latter approached Shipp for a meeting to discuss the tentative agreement which had been negotiated at the February 6 conference. Shipp asked Shannon whether he was in a position to bind the respondent to which Shan- non replied that the discussion was to be a purely informal one. Shipp then asked him if he would enter into joint recommendations with Shipp which could then be referred to the central office of the respondent for adoption, and Shannon replied that he could not. Shipp saw no further purpose in continuing these discussions unless there was some possibility of arriving at an agreement. He told Shannon that unless the Union could meet with the management with a view to entering into a definite agreement, the Union would ask for no further meetings but would submit the case to the Board s We have made the foregoing findings on the basis, for the most part, of the testimony given by Shipp. We believe that Shipp's testimony is a substantially accurate account of the course of the negotiations between the respondent and the Union. It is supported not only by written correspondence which was introduced into evi- dence but by Shannon's testimony as well. Although Shannon denied many of the specific statements of Shipp, his own testimony sub- stantiates the general tenor and purport of Shipp's account. The transfers of Jones and Moore are discussed in subsection 2 below The Union had already on March 24 , 1936, filed charges with the Regional Director for the Seventeenth Region, and indeed, as stated above, it was apparently a letter from the Regional Director to Shannon that had inspired Shannon's overtures to Shipp The Regional Director, however, requested the Union to withdraw its charges because the Board at that time did not wish to test the question of jurisdiction over employers engaged in oil production Charges were again filed after the constitutionality of the Act had been sustained. CONTINENTAL OIL COMPANY 799 Shannon admitted that before April 12, 1937, the date upon which the Supreme Court sustained the constitutionality of the Act, the respondent refused to recognize any labor organization as the ex- clusive bargaining agency for its employees. With regard to Shipp's testimony that his proposal to enter into a contract upon the basis of the working conditions set forth in the letter of September 18, 1934, was rejected, Shannon testified as follows: "I recall the con- versation, in regard to my letter of September 18, 1934, and Mr. Shipp again proposed we take up the agreement that they had originally submitted ; and I stated to Mr. Shipp and the committee that we had given this matter thorough consideration; that there were no specific problems that seemed to be up for discussion be- tween ourselves and the committee that were not satisfactorily cov- ered by that letter of September 18, and that I thought we could satisfactorily work along on that basis. That was our viewpoint." 6 This is tantamount to a statement that there would be no purpose in entering into an agreement which embodied the provisions of the letter of September 18. In subsequent testimony which is set out below, this point is made even more strongly, thus supporting Shipp's own account. With regard to Shipp's version of the meeting in May 1937, Shan- non admitted that he had used the word "informal," but testified that he did not know that the word "informal" had any special meaning. He added : "Well, I think Mr. Shipp is confused as to the sense of our discussions. I was meeting with him as a repre- sentative of the company, and met with him at all times in that capacity; and I told him at that meeting that we would again discuss any matters that he wished to discuss, and such matters as I thought necessary I would refer to-any matters that I could not reach a conclusion here on that I would refer, as I have in the past, to our company for consideration."' This "informality" was precisely what Shipp objected to. Despite meeting after meeting, the Union was no nearer an agreement than it had been since it started negotiations in September 1934. Most revealing of the respondent's position with respect to its obligations under the Act is Shannon's explanation of his failure to make any disposition of the terms of a proposed agreement that were negotiated at the conference of February 6, 1936. He testified that Thomas and Bartels had not made any recommendation, either for adoption or rejection of the proposed agreement and added: "I think they felt very much the same as I did about it; that there wasn't a great deal of difference." There were, in fact, substantial e Italic supplied. Italic supplied. 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD differences between the proposed agreement and existing working conditions, but more significant is the indication of the respondent's view of collective bargaining in this failure to recognize a distinc- tion between a contract and a statement of working conditions revocable at the respondent's pleasure. The conduct of the respondent throughout the course of the nego- tiations conforms with a familiar pattern to which we have had fre- quent occasion to advert in prior decisions.8 The respondent con- tends that its willingness to meet with representatives of the Union and discuss with them the proposals which they advanced, consti- tutes compliance with the Act. This willingness, however, was di- vorced from any intention to enter into an agreement with the Union. The respondent clearly considers the relationship existing between itself and the Union not as one of equal contracting parties, but rather as one of suppliant and benefactor. It views collective bar- gaining as a process wherein a labor organization may present re- quests, which the employer may either grant or deny as it sees fit, with the barest statement of the reasons for its action. If the request is denied an agreement is impossible because the parties are not in accord as to substance. If the request is granted, the respondent sees no need for an agreement, since the parties are already in accord as to principle. Carried to its extreme, this attitude resulted in the treatment given to the proposed agreement of February 6, 1936, with respect to which the respondent saw no need to commu- nicate either its approval or disapproval to the Union, since it had already cavalierly determined "that there wasn't a great deal of difference." This attitude of the respondent fully justifies the char- acterization made by the -Union in its first charge filed with the Regional Director for the Seventeenth Region, that the respondent was attempting to make a "farce" of the Union's efforts to bargain collectively. At no time did the respondent exhibit any disposition to engage in genuine collective bargaining with the Union toward a satisfactory solution of the various problems in issue s We have heretofore concluded that such conduct as the respond- ent's does not constitute collective bargaining within the meaning 8 See, e g., Matter of St Joseph Stock Yards Company and Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 159, 2 N. L. R. B 39; Matter of American Numbering Machine Company and International Association of Machinists, District #15, 10 N. L. R. B. 536; Cf. Matter of Atlas Mills , Inc. and Textile House Workers Union , No. 2269, United Textile Workers of America, 3 N. L. R. B. 10; Matter of Globe Cotton Mills and Textile Workers Organizing Committee, 6 N L. R B. 461, niodifled in another particular and enforced as modified in March 30, 1939 (C. C. A. 5th). Compare the Report of the President's Commission on Industrial Relations in Sweden in which it is pointed out that in Sweden , the "right of collective bargaining is defined to include the obligation of the opposite party to enter into negotiations, to attend joint meet- ings, and , where necessary, to make 'proposals supported by reasons for the settlement of the question concerning which negotiations are instituted."' See p. 7 of the Report. CONTINENTAL OIL COMPANY 801 of Section 8 (5) of the Act. In Matter of St. Joseph Stock Yards Company and Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 159,10 we stated our reasons for this conclusion as follows : An assertion that collective bargaining connotes no more than discussions designed to clarify employer policy and does not include negotiations looking toward the Jdoption of a binding agreement between employer and employees is contrary to any realistic view of labor relations. The development of those relations had progressed too far when the Act was adopted to permit the conclusion that Congress intended to safeguard only the barren right of discussion . . . that attitude . . . is designed to thwart and slowly stifle the Union by denying to it the fruits of achievement. It is based upon the knowledge that in time employees will grow weary of an organization which cannot point to benefits that are openly credited to its aggres- siveness and vigilance and not to an employer's benevolence that on the surface may appear genuine but in truth is forced upon the employer by the organization. To many his unwill- ingness to enter into an agreement with a labor organization may seem no more than a harmless palliative for the employer's pride and to amount only to a petty refusal to concede an un- important point purely as a face-saving device. But the fre- quency with which the old Board was compelled to denounce such a policy on the part of employers indicates its potency as a device subtly calculated to lead to disintegration of an employee organization. Moreover, the respondent's refusal to grant recognition to the Union as the exclusive bargaining agency and its repeated insistence that it would continue to bargain with other groups of employees is, in itself, an unfair labor practice. We have heretofore stated that the granting of recognition as sole bargaining agency "is a funda- mental and initial element of the duty to bargain collectively."" The respondent offers the contention that despite this repeated in- sistence, it did in fact deal exclusively with the Union, since no other group requested meetings. It is clear, however, that the force and effect of the respondent's refusal to grant exclusive recog- nition were not vitiated by its inability to achieve its intention of treating other groups of employees on the same terms. 10 2 N. L. R. B. 39. "Matter o f Acme Air Appliance Company, Inc. and Local No. 1223 of the United Electri- cal Radio & Machine Workers of America, 10 N. L. R. B. 1385. See also Matter of The B088 Manufacturing Company and International Glove Workers' Union of America, Local No. 85, 3 N. L. R. B. 400. 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that in August 1935 and thereafter, the respondent re- fused to bargain collectively with the Union as the representative of its employees in an appropriate unit at Big Muddy Field with respect to rates of pay, wages, hours of employment, and other conditions of employment, and that it thereby interfered with, re- strained, and coerced its employees in the exercise of the rights guar- anteed in Section 7 of the Act. 2. The discriminatory transfers In the last week in April 1936, both Ernest Jones and F. D. Moore were informed by their foreman, Bartels, that they were to be trans- ferred to Hobbs, New Mexico. Jones was employed as a relief pumper at Big Muddy Field at the time of such notification and the transfer would have entailed a demotion from pumper to roustabout. Jones had been in the employ of the respondent since 1926,12 and had worked at Big Muddy Field since August 1928. Of 30 men in the field, he ranked about fifth or sixth in seniority. He was a charter member of Local 242 of the Union. He was elected to the workmen's committee of the Local in 1934 and has served as chairman of the com- mittee from November 1934 to the date of the hearing. He had been vice president of the Local for 6 months in 1934, and financial secretary and treasurer from June 1935 to the date of the hearing. He had also been chosen by Local 242 as a delegate to the Oil Work- ers Council for the State of Wyoming. Jones was about 35 years old when he was ordered transferred. Moore was employed as a roustabout at the time of the notifica- tion of transfer and had been employed at Big Muddy Field since 1919. He was second in seniority at Big Muddy Field. Moore joined Local 242 in the fall of 1933, and except for one short interval, had been on the workmen's committee since the latter part of 1934. At the time of the notice of transfer, he was second vice president of the Local and its representative to the Central Labor Council. He was also a member of the legislative committee of that body. Moore was about 54 years old at the time he was ordered transferred. After Jones and Moore had been notified of these transfers, rep- resentatives of the Union called upon Thomas and Bartels. They were informed that two other employees in addition to Moore and Jones were being transferred, but to a nearby field in Wyoming. .Thomas told them that these transfers had resulted from the decision of the respondent to operate Big Muddy Field on a. 48-hour week, 12 The respondent corporation did not come into existence until 1929, when an earlier Continental Oil Company was consolidated with the Marland Oil Company . However, there was no disruption in the continuity of work or the employment of personnel, and indeed the respondent, at the time of the hearing, had awarded 10-year service buttons to some of its employees , taking into account service before the date of the merger. CONTINENTAL OIL COMPANY 803 effective May 1, which would necessitate a reduction in personnel. The union representatives then asked why Jones and Moore had been chosen for transfer to New Mexico. They pointed out that both Jones and Moore had considerable seniority and that it would have been more equitable to have chosen younger men both in age and in length of service. Thomas replied that he, alone, had not ordered the transfers and that he was not in a position to change them. He promised, however, that he would attempt to arrange a meeting with Shannon. At the hearing, Thomas testified that he and Bartels had together selected Jones and Moore to be transferred. As described above, he said that he had denied that he had had anything to do with it, because "at the time it made me kind of sore and I didn't think it was any of their business." The promised meeting with Shannon never materialized. Both Jones and Moore refused the transfer, each of them stating that he could not accept the transfer and move to Hobbs because his wife was ill. Jones thereafter reported for work at Big Muddy Field on two successive days. On each occasion he was told either by Thomas or Bartels that there was no work. On the last occasion Bartels asked him "how far [he] thought [he] could get by coming to work every morning" and that Shannon had already been in- formed that he "had quit." However, when investigation showed that Moore's wife was bed- ridden, Moore was offered a transfer to Ft. Collins, Colorado. Upon his refusal of this offer, he was told that he could continue to work at Big Muddy Field. Moore testified that Bartels told him that this offer was only for the duration of his wife's illness. Bartels, who denied that he had placed this condition on the offer of reem- ployment, testified as follows with respect to the incident : There was something said about his wife's illness, wondering whether when she got well if we would try to transfer him again. I said, "Well, why worry about that, Dinty ?" The nature of his wife's illness, she would be laid up for 5 years or so, "and you might have a different foreman here at that time that could get along with you." Since the reason for offering Moore reemployment at Big Muddy Field was his wife's illness, Moore's version of the incident is the more reasonable one. This conclusion is strengthened by Bartel's equivocal denial which permits the inference that the condition was implicitly understood between the men, even if not explicitly stated. Moore refused to accept this offer of reemployment on a temporary basis and did not thereafter report for work. The respondent contends that both transfers were not discrimina- tory, but were made upon the basis of efficiency. The increase in hours 169134-39-vol. 12-52 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made it necessary to transfer four employees. According to the re- spondent, since there was room for only two in the other fields in Wyoming, and since Jones and Moore were the most inefficient, it was decided to transfer them outside the State. Although testimony was introduced by the respondent in an attempt to support its contention that Jones and Moore were inefficient we need not, however, decide their relative efficiency compared with the other employees. We are satisfied from the record that efficiency was not in fact a determinant in the selection of men to be transferred.13 Instruc- tions to Thomas from Joe Dyer, vice president of the respondent in charge of production, were to the effect that in the course of the re- duction in personnel, inefficient men were not to be transferred, but to be discharged. Admittedly, both Jones and Moore were to remain in the respondent's employ, and their alleged inefficiency would appar- ently have been as detrimental to the respondent at Hobbs as at Big Muddy Field. Moreover, at the time of the notice of transfer, neither Jones, Moore, the union committee, nor the foreman at Hobbs were told that inefficiency was the basis of selection. The respondent contended that none of the other foremen of the Wyoming fields would accept either Jones or Moore and it was there- fore necessary to transfer them out of the Wyoming district. How- ever, when Whitlock, another employee at Big Muddy Field who was one of the four originally selected to be transferred, was rejected by Bowen, the foreman at Salt Creek, it was decided to keep him at Big Muddy Field and transfer Canning instead who was more efficient and therefore satisfactory to Bowen. Shannon contended at the hearing that although unsatisfactory at Big Muddy Field, Jones might prove to be efficient at Hobbs, since it was a new field and would present new opportunities. Shannon ar- gued that it was helpful for young men in the oil business to obtain varied types of experience. Upon such basis, however, it is reasonable to assume that the respondent would not have chosen Jones, an em- ployee of 10 years seniority for the purpose of giving him additional experience, especially since this transfer entailed a demotion. The contention was made by Shannon, with respect to Moore, that although he had been inefficient as a roustabout, he was being transferred to Hobbs as a tool dresser, a job he had formerly held, and at which he had proven satisfactory. This contention, however, when contrasted 's Cf. Matter of The Kelly-Springfield Tire Company and United Rubber Workers of America, Local No. 116 and James M. Reed and Minnie Rank, 6 N L. R. B. 325, where we stated as follows : "While proof of the presence of proper causes at the time of discharge may have relevancy and circumstantial bearing in explaining what otherwise might appear as a discriminatory discharge, such proof is not conclusive. The issue is whether such causes in fact induced the discharge or whether they are but a justification of it in retrospect." CONTINENTAL OIL COMPANY 805 with the testimony of Thomas that his judgment as to Moore's ineffi- ciency was based to a considerable extent upon his work as a tool dresser at Big Muddy Field, is clearly without merit. The motivation for the transfer of Moore and Jones at that time may be seen in the decision of the respondent to increase the hours of work at Big Muddy Field. The respondent was aware that the Union was opposed to such an increase and might attempt to take steps to prevent it. The hours of work had been a subject of negotiation between the respondent and the workmen's committee of Local 242. Although the committee was composed of three members, Moore and Jones were the only two who had been constantly on the committee, since the third member was changed from time to time. The respondent in its brief argues that the president of the Local, Charles Erwin, was not trans- ferred at this time, whereas if the respondent had sought to oust active union members, this officer would obviously have been singled out. Er- win, however, was not a member of the workmen's committee, and the record is clear that Jones and Moore were most active in all negotia- tions with the respondent. It is significant that at the nearby fields in Wyoming, Lance Creek, and Salt Creek, where the Union had not yet organized, the hours of work had been increased some months be- fore. The inference is plain that the only reason for the delay in an- nouncing the increase in hours at Big Muddy Field was the presence of the Union. Concurrently with the announcement of an increase in hours, the transfer of the two most militant members at the Field was also announced. We conclude that the transfers were made in order to remove the backbone of the Union and prevent an effective opposi- tion to the increase in hours. This conclusion is strengthened by the respondent's repeated eva- sions of the Union's efforts to bargain with respect to the hours of work, and its arbitrary refusal to discuss the question of these trans- fers with a union committee. In addition, Bartels' expressed hostility toward Jones and Moore for their union activity further buttresses our conclusion. Jones testified that in the course of an incident in which he had been censured and threatened with discharge because his well had not been running, Bartels told him, "Well, if you quit your union foolishness and do a little more work, why, you could go ahead with your job." Moore testified that at the time of the transfers, Bartels expressed resentment that the men were taking up the matter with the Union. When Moore asked Bartels if he was being transferred because of his union affiliations, Bartels replied, "I can't say." He subsequently asked Moore if he was being advised by Shipp and added, "If I'd got rid of you Union men long before this, we wouldn't have had this trouble." 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bartels denied generally that he had ever criticized Jones or Moore for their union activities, and stated that he had never had more than a casual conversation with them about the Union. He did not deny, however, that he had made the specific statements attributed to him. We believe that the testimony of Moore and Jones is correct. In summary, the evidence shows that the two most militant union members, both of whom ranked high in seniority, were ordered trans- ferred on the eve of an increase in the hours of work after the respondent had evaded or ignored repeated efforts by the Union to bargain with respect to hours of work and other conditions of employ- ment. Although the justification offered by the respondent for the transfers was that these men were inefficient, the record does not sup- port a finding that efficiency was the deciding factor in selecting the men to be transferred. The Union's inquiry to discover the basis used in the choice of men to be transferred was met by the respondent with an uncompromising refusal to discuss the matter. That these men were undesirable to the respondent because of their prominence in the Union is further shown in the anti-union statements made by the field foreman. Upon the basis of all these factors we conclude that Jones and Moore were ordered transferred because of their union activities. The respondent further contends with respect to Moore that even if his transfer was discriminatory, the respondent thereafter offered to reemploy him at Big Muddy Field. This offer, however, was condi- tioned upon the duration of the illness of Moore's wife. Moore testified that he would have gone back to work if he had been offered a job on a permanent basis. He was not required, however, to accept the job on a temporary basis.14 We have heretofore held that when- ever any substantial change in the status of an employee is made upon a discriminatory basis, the -refusal of the employee to accept the changed status cannot be considered as a resignation from employ- ment.15 In the present case, the offer of reemployment upon the condition that it would last only so long as his wife was ill was dis- criminatory. Accordingly the refusal of this offer by Moore did not operate as a voluntary termination of employment. We find that the respondent, by its transfers of Moore and Jones and the subsequent imposition of a condition upon the reemployment 14 The respondent contended at the hearing that if Moore bad gone back to work, he would still be employed , since his wife was still ill. Moore, however, understood that this employment at Big Muddy Field would continue only so long as his wife remained bed- ridden. In all events , however, the offer as one of temporary employment, conditioned upon the recovery of his wife. 15 Matter of Waggoner Refining Company, etc . and International Association of Oil Field, Gas Well, and Refinery Workers of America, 6 N. L. R . B 731. Cf. Matter of Clover Fork Coal Company and District 19, United Mine Workers of America , 4 N. L. R. B 202, order enforced in Clover Fork Coal Company v. National Labor Relations Board 97 F. (2d) 331 (C. C. A. 6th, 1938). CONTINENTAL OIL COMPANY 807 of Moore, discriminated in regard to their hire and tenure of employ- ment and the terms and conditions of their employment, thereby dis- couraging membership in the Union, and thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Jones was earning $117.50 a month at the time his services were ter- minated. The rate of pay for his job was thereafter increased to $130 and subsequently to $140 a month. Jones has been conducting a gen- eral store since May 1936 and has been postmaster for Parkerton, Wyoming, since May 1937. Moore was earning $112.50 a month at the time his services were terminated, but the rate of pay for his job was thereafter increased to $125 a month and subsequently to $135 a month. He has been employed as a guard at the State Penitentiary since 1936 at a salary of $70 a month in addition to room and board. B. Glenrock Re furry 1. The refusal to bargain collectively (a) The appropriate unit The complaint alleged that the production and maintenance em- ployees of the respondent employed at the Glenrock Refinery consti- tute an appropriate unit. This allegation was not contested. We will, however, in accordance with our usual practice exclude supervisory and clerical employees. We find that the production and maintenance employees of the re- spondent at its Glenrock Refinery, exclusive of supervisory and cleri- cal employees, constitute a unit appropriate for the purposes of col- lective bargaining, and that such unit insures to these employees of the respondent the full benefit of their right to self-organization and lo collective bargaining and otherwise effectuates the policies of the Act. (b) Representation by Local 242 of a majority in the unit In an election conducted by the Petroleum Labor Policy Board in July 1934, Local 242 of the Union was certified as the collective bar- gaining agency for the employees of the Glenrock Refinery. Of 80 votes cast in this election, 54 were cast for Local 242. Shortly after the passage of the Act, Local 242 circulated among the employees of the refinery a petition designating the Local as the collective bargain- ing agency. Of a total of approximately 80 employees in the appro- priate unit at the time, 46 signed this petition. At the time of the circulation of this petition, therefore, Local 242 clearly represented the majority of the employees in the appropriate unit. 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent contends that between the time of the election con- ducted by the Petroleum Labor Policy Board and the circulation of the petition, a majority of the employees signified their acceptance of an Employees Council Plan, and that this acceptance vitiated the designation of Local 242. However, the Employees Council Plan was admittedly sponsored and supported by the respondent, and upon the decision by the Supreme Court that the Act was constitutional the respondent deemed it desirable to sever its relations with this organiza- tion.18 The acceptance of the Employees Council Plan was not, there- fore, the expression of a free choice by the employees and may be dis- regarded. We have already discussed two further contentions of the respond- ent: (1) that the designations were in fact of Local 242 of Interna- tional Association of Oil Field, Gas Well and Refinery Workers of America, and (2) that, even if it be granted that Local 242 represented a majority of the employees in the appropriate unit at the time of the refusal to bargain, it did not represent a majority at the time of the hearing. We find that on August 12, 1935, the date of its first attempt to bargain collectively after the passage of the Act, and thereafter the Union was the duly designated representative of a majority of the respondent's employees at its Glenrock Refinery in an appropriate unit and pursuant to Section 9 (a) of the Act was the exclusive repre- sentative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. (c) The refusal to bargain The conduct of the respondent in response to the request of the Union to bargain collectively for the employees of the Glenrock Re- finery, falls into a pattern similar to that which we have set forth above with respect to Big Muddy Field. Shortly after the certification of Local 242 by the Petroleum Labor Policy Board, Shipp called upon Carl R. Tillman, the superintendent of the Glenrock Refinery, and expressed the desire of the Union to meet with the respondent and negotiate a collective agreement. In the course of the discussion Shipp objected to the action of the respondent in bargaining with the Em- ployees Council Plan, despite the certification of the Union as the bar- 16 The respondent offers the contention that , since after a hearing before the Petroleum Labor Policy Board , the Employees Council Plan was declared a legal organization, that decision is binding upon this Board. However, the decision of the Petroleum Labor Policy Board was based upon another act and was issued before the passage of the National Labor Relations Act. Moreover, as stated in the _ text, the respondent itself recognized the illegality of the organization. CONTINENTAL OIL COMPANY 809 gaining agency for the employees of the refinery. Tillman replied that the respondent preferred to meet directly with its employees and would continue to do so. Thereafter, the Union's proposal for a con- tract covering working conditions was answered in a letter dated Sep- tember 22, 1934, similar in context and form to the letter of September 18, 1934, which was issued at Big Muddy Field and containing a para- graph identical with the one we have quoted from that letter. At a subsequent meeting in December 1934, at which Walter Miller, vice president in charge of refining, appeared for the respondent, Miller stated that the respondent was willing to meet with any com- mittee of employees or with any individual employee, but would not recognize any group as the exclusive bargaining agency. Subse- quently, in April 1935, the respondent announced a wage increase and stated that it had been secured through the efforts of the Employees Council Plan. The passage of the Act marked no change in the attitude of the re- spondent. A letter to the respondent stating that a petition designat- ing the Union as bargaining agency had been signed by a majority of the employees and requesting a conference for the purposes of collec- tive bargaining was answered by Miller in the following terms : I have answered right along that as a result of the conferences and meetings we have held in the past there was a full understand- ing between us regarding the working conditions which the com- pany has maintained and methods of handling grievances with employees 17, and thought that the company's attitude regarding its relations with employes was thoroughly understood. I am therefore at a loss to understand exactly what you have in mind when you state you wish to make a collective bargain, as accord- ing to my way of thinking we have been collectively bargaining with our employes for a considerable length of time past, one group through the Council and the other group through the com- mittee of employes representing Local Union 242. After a further exchange of correspondence, a meeting was held at which Tillman appeared as the representative for the respondent. The Union presented a proposed agreement covering working conditions and terms of employment. Tillman announced that he could not bar- 17 The letter of September 22 prescribed qualifications for members of any committee with which the respondent would discuss grievances as follows : "It is understood that a com- mittee submitting a grievance for any employe in the group or association which it represents will be selected from among such group or association of employes of the Glenrock refinery, and that to be eligible for membership on such a committee an employe shall be an American citizen and have been actively engaged in the oil industry for one year next preceding his election . . . It is also understood that in the selection of this committee each employe in the group which it represents is to have one vote for each member to be elected." 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gain with the Union on these matters but that he would refer the pro- posed agreement to Miller. On January 31, 1936, Miller in a lengthy letter to the union committee, rejected every one of the union proposals, stating that most of the matters had been covered in the September letter. He stated that the working conditions therein set forth were still being maintained, reaffirmed the existing working conditions, and the grievance procedure described in the September letter,18 and concluded as follows : Generally speaking, with the exception of Item 2, all the re- quests made above which are not included in our working condi- tions are points which have been brought up and discussed a num- ber of times before. The writer has gone over them with Mr. Daly 19 alone, and with Mr. Daly and the committee. He has gone over them with Mr . Shipp alone , with Mr. Shipp and the committee, and with some individual members of the committee. He is ready to come to Glenrock for a meeting and discussion at any time within reason if it appeared that some good could be accomplished, but in view of the number of times the disagreed points have been discussed , the details of the company's attitude are undoubtedly well known to all of you. A subsequent request for a wage increase was denied on March 14, 1936, in a letter of much the same tone. This letter marked the end of negotiations between the respondent and the Union. During the course of negotiations, no counterproposals were ever made by the respondent. The respondent contends that its conduct constituted genuine collective bargaining. However, we have already fully dis- cussed this contention of the respondent in our section on Big Muddy Field. Our discussion there is equally applicable to the respondent's position at the refinery. We find that in August 1935 , and thereafter the respondent refused to bargain collectively with the Union as the representative of its employees in an appropriate unit at its Glenrock Refinery, with respect to rates of pay, wages, hours of employment, and other conditions of employment, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. The company-dominated union At the election conducted by the Petroleum Labor Policy Board in 1934, a minority of the employees at the Glenrock Refinery registered their approval of an employee-representation plan. At the time, how- "'See footnote 17 19 Daly was Shipp's predecessor CONTINENTAL OIL COMPANY 811 ever, no plan had been organized or was in existence. Subsequent to the election, a committee of employees, with the assistance of Miller, circularized the employees of the refinery, suggesting that the minor- ity which had endorsed a plan of employee representation should proceed to organize such a plan and put it into operation. With the assistance of the respondent, an employee representation plan evolved. This plan was known as the Employees Council Plan. The plan which thus had its origin made no provision for member- ship meetings and left the conduct of its business to the employee representatives. All expenses of the plan were paid by the respond- ent. The employee representatives who were selected chose as their secretary Fred Davis, chief clerk of the refinery. Davis attended meet- ings and took part in the discussions of the representatives. Whenever the representatives decided to present a grievance, it was presented to the respondent through Davis. After the Supreme Court decisions sustaining the constitutionality of the Act, Walter Miller in a letter to Tillman, the manager of the refinery, stated that the plan as operated was no longer lawful, and that therefore the respondent could no longer deal with it. He sug- gested, however, that the plan be changed to conform with the law and advanced the opinion that the plan could be made legal by two simple changes: (1) the cessation of financial support by the respond- ent, and (2) the exclusion of any agent of the respondent from meet- ings of the employee representatives. He further suggested that the employee representatives could either revise "the present form to conform with the Act," or, in the alternative, create "a new labor or- ganization to supplant the present council plan." He concluded the letter with a direction to Tillman to "Tell the men that if they decide to work up something to fit the new conditions, and want to consult with me, I shall be glad to come to Glenrock for the purpose in the near future." Tillman testified that, despite these instructions, he never showed the letter to the employee representatives, or told them about it, except for the statement that since the Act had been upheld, the respondent could no longer deal with them. The employee representatives, on their part, denied ever having seen the letter or being apprised of its contents. However, a witness called by the Board testified that at a meeting held soon after the receipt of this letter by Tillman, Charles Martin, one of the employee representatives, opened the meeting by stating, "As we all know, this Wagner law has killed our company union, and it is the wishes of the company that we form some other kind of an organization that we can bargain with them." At that point, one 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the members of the audience remarked, "You know what Mr. Miller wants us to do, why don't you read that letter that Mr. Miller sent us, that was read to us out at the plant?" Subsequent events in which the employee representatives in fact followed the course of action prescribed in Miller's letter lead us to conclude that Tillman apprised the representatives of the contents of the letter. Thereafter, the employee representatives, with the assistance of Davis, drew up a new plan which in effect was merely the old plan revised to meet certain of the objections raised by the Act. The employee representa- tives then called a meeting of the employees of the refinery at which Martin stated the reasons for the termination of the old plan and presented the new plan for approval. The revised plan, however, failed of acceptance and was dropped. About a month later, another meeting at which Martin was again the most active figure, was called. Those present at the meeting proceeded to select a committee, among whose members were Martin and one or two members of Local 242 of the Union, to draw up a con- stitution and bylaws for an independent union. This committee drafted a constitution and bylaws, which in large part were patterned after the Employees Council Plan, although enshrouded in a rhetorical declaration of the rights of working men. This device, together with a change in name, proved successful and at a meeting held at the City Hall and attended by some 14 employees the constitution and bylaws of the new organization, which had been denominated as Independent Association of Conoco Glenrock Refinery Employees, were approved 20 Thereafter a petition approving the constitution and bylaws was circularized throughout the plant and signed by a majority of the employees of the refinery. With little change, the Glenrock Association assumed the position of the Employees Council Plan. The machinery for the presentation of grievances was identical, except for the omission of Davis' position as intermediary between the organization and the management. How- ever, communications from the management to the Glenrock Associa- tion were all written on stationery headed "For Interdepartment Correspondence Only." Requests or demands of the Glenrock Asso- ciation were assigned case numbers by the respondent in a fashion similar to that in which cases had been treated when presented under the Employees Council Plan. Indeed, the respondent's answer to at least one of the requests of the Glenrock Association referred as a precedent to a decision, which had been arrived at under the Employees 8D Some of the later meetings of the Glenrock Association were held in the high -school auditorium , the use of which was secured through the intervention of Davis, chief clerk of the refinery. CONTINENTAL OIL COMPANY 813 Council Plan.21 The respondent regarded the Glenrock Association as a continuation of the Employees Council Plan and assumed a con- tinuity of organization in the Employees Council Plan, the abortive attempt to revise it, and the Glenrock Association. Soon after its establishment the Glenrock Association requested recognition as bargaining representative for members of the organi- zation. Miller in a letter of reply recognized the Glenrock Association as the exclusive bargaining agency within the terms of the Act, and in the same letter which had already granted recognition, requested the officers of the Glenrock Association to assure him that the organiza- tion had been designated by a majority of the employees of the Glen- rock Refinery.22 This alacrity in recognition of the Glenrock Association is in start- ling contrast with the response to similar requests by Local 242, both at Big Muddy Field and at Glenrock. The respondent argues that the reason for the difference in treatment stemmed from the upholding of the Act by the Supreme Court in the interim. This argument, how- ever, does not explain the abandonment of ordinary caution in ascer- taining the existence of a majority, nor was this shift in attitude reflected in the response to a request for recognition by the Union at Salt Creek Field, which was also made after the Supreme Court decisions. The inference is clear that the motivation underlying the respondent's alacrity in recognizing the Glenrock Association was a m A sample of the correspondence from the company to the Glenrock Association reads in part as follows : CONTINENTAL OIL COMPANY For Interdepartment Correspondence only To : Independent Association of Conoco Glenrock Employees. Subject : CASE No. 4-KELLOGG STILL FIREMEN REQUEST WAGE SCALE ADJUSTMENT TO BRING BATE TO APPROXIMATELY 5 CENTS ABOVE PUMPER , TREATER, AND LOADER RATES I have made a particularly close study of this case , and because of the comparisons made between cracking still rates and those of boilerhouse firemen, pumpers , treaters, et cetera, referred back to Employee Council Case No. 18, in which some points bore a similarity to those presented here. In that case, presented to Management in a letter dated February 21, 1936, the statement was made, "The petitioners further state that there are several Kellogg operators receiving less pay than men of shorter service and less experience are receiving for the jobs from which the Kellogg operators were transferred." It seems to me that a paragraph from my letter of March 14, 1936, in connection with Council Case No. 18 can well be read in connection with this case. That paragraph read as follows: 21 The letter concluded as follows : It is the sincere hope of the management of the Continental Oil Company that the friendly relationship which has existed between Management and the workers for so many years will tontine , [sic] and that the collective bargaining relationship thru the Independent Association of Conoco Glenrock Refinery Employees, as established by the decision of the employees themselves, and this acceptance thereof by the Com- pany, will operate as a means for continuing such friendly relationships. 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD desire to favor this organization rather than a desire to conform with the law. This attitude of support and cooperation on the part of the respond- ent was reciprocated by the Glenrock Association. When a request for a wage increase was denied by the respondent, the officers of the Glenrock Independent invited Miller to attend a meeting of the organi- zation to explain the position of the respondent , because they "figured that Miller could give this picture better than [they]." The minutes of this meeting concluded with the observation that "all seemed to be satisfied with the statements made" since "no questions were asked." The evidence shows that the respondent dominated and interfered with the formation and administration of the Glenrock Association. The inspiration for the organization of the Glenrock Association came from the respondent and the respondent actively assisted in its formation. After the formation of the Glenrock Independent, the respondent treated it as a continuation of the Employees Council Plan, an admittedly company-dominated labor organization .23 It assisted the Glenrock Association in procuring a meeting place, and more significantly , granted the organization recognition as the exclusive bargaining agency, upon an unverified statement that it had been designated by a majority of the employees. As described above the respondent had previously maintained the position with respect to Local 242 that it would not recognize any labor organization as the exclusive representative of its employees. The reason for this sudden change in position and startling eagerness to comply with the Act when approached by the Glenrock Association is too obvious to require explanation . In contrast with the very dissimilar treatment given to Local 242, such recognition must have established in the minds of the employees the favoritism of the respondent toward the Glenrock Association.24 We find that the respondent, by the above-described course of con- duct, dominated and interfered with the formation and administration of the Glenrock Association and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 23 Cf. Matter of Swift & Company , a Corporation and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 641 and United Packing House Workers Local Industrial Union No 300, 7 N. L. R. B. 269 , and Matter of Swift & Company and United Automobile Workers of America, Local No. 265, 7 N L R. B 287, where after the dissolution of a company union , a successor organization 'eas formed at the suggestion of the employer. See also Matter of Inland Steel Company and Steel Workers Organizing Committee and Amalgamated Association of Iron, Steel, and Tin Workers of North America, Lodge Nos. 64, 1010, and'1101, 9 N. L R. B. 783 24 Cf. Matter of Fansteel Metallurgical Corporation and Amalgamated Association of Iron, Steel, and Tin Workers of North America, Local 66, 5 N. L. R B 930, order modified in another respect and enforced , 59 Sup. Ct 490 ( 1939). CONTINENTAL OIL COMPANY 815 C. Salt Creek Field 1. The alleged refusal to bargain collectively (a) The appropriate unit The Union contends that the appropriate unit for bargaining pur- poses in Salt Creek Field should include only those employees engaged in production work in the field and should exclude the employees engaged in the operation of the gas compression and reduction plant. The respondent contends that the appropriate unit should also include this latter group of employees. The gas plant is operated to create a vacuum which draws natural gas from the wells in the field, thus permitting the oil in the wells to be pumped more freely. The natural gas is drawn through pipe lines into the gas plant where all moisture and gasoline are removed. The dry gas is then redirected by pipe line to the wells where it is utilized for the operation of the pumps and for other fuel purposes. The surplus of such gas is placed back into the wells and conserved for future use. The gasoline which is abstracted from the gas is known as casing-head gasoline and is sold as a separate product. The men employed at the gas plant are divided into two main categories : operators, who operate the machinery in the gas plant, and roustabouts, whose duties involve the maintenance of the vacuum lines leading from the wells to the gas plant and any other general labor work that might be required of them. The respondent contends that the nature of the work performed by operators is similar to that performed by pumpers in the field, and that the duties of roustabouts in the plant and in the field are virtually identical. Both groups of roustabouts are engaged in general labor work, and there is evi- dence that field roustabouts occasionally assist in work on the vacuum lines and plant roustabouts assist on field pipe lines when- ever an emergency might require such aid. The record does not disclose in detail the duties of operators although it appears that they earn $5 more a month than the pumpers in the field. At an election conducted by the Petroleum Labor Policy Board in 1934, both field and plant employees were voted as one unit without objection by the Union. Employees at the gas plant are eligible for membership in Local 233 of the Union, and some of them had for- merly been members, although at the time of the alleged refusal to bargain, the Union did not have a single member among the gas- plant employees. Since the Union is the only labor organization here involved '25 we believe that its contention should be granted. The respondent 25 The Salt Creek Association may, for this purpose, be disregarded since, as we find below, it was formed in violation of Section 8 (2) of the Act, and in any event , was not as of the date of the hearing a functioning organization. 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD maintains separate pay rolls for field employees and gas plant employees and designates its employees at Salt Creek Field as either field employees or gas-plant employees, a distinction which is gener- ally recognized by the men at Salt Creek. Although the respondent does not explain the reason for this practice, we must presume that there is sufficient reason in administrative convenience to justify this demarcation. We have previously held that employees should not be denied the benefits of the Act because organization has not yet pervaded the whole plant or enterprise of an employer, but has been limited to a single area or field.26 We believe this principle to be applicable in the present case. The parties are apparently in agreement that the appropriate unit should exclude the production foreman and the clerk at Salt Creek Field, but should include head roustabouts. Accordingly, we shall exclude the production foreman and clerk but include head rousta- bouts. We find that the production employees of the respondent in the Salt Creek Field, including head roustabouts but excluding the pro- duction foreman, the clerk, and employees engaged in the operation of the gas compression and reduction plant constitute a unit appro- priate for the purposes of collective bargaining, and that such unit insures to these employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectuates the policies of the Act. (b) Representation by Local 233 of a majority in the unit The course of negotiations between the Union and the respondent which led to the charge that the respondent had refused to bargain took place from January to May 1937. It was agreed at the hearing that the appropriate unit during this period contained 28 employees, although the pay rolls of the respondent introduced into evidence shows the number to have been 26 in January and 30 in March. We shall adopt the agreement of the parties with respect to the number of employees in the appropriate unit during this period. In Decem- ber 1936, the Union had been designated as the bargaining represent- ative by 15 of the 28 employees in the appropriate unit. However, 1 of these 15, Feaster, after his designation of the Union and while negotiations were still under way, proceeded to organize an inde- pendent association for the purposes of collective bargaining with 28 See Matter of R. C. A. Communications Inc. and American Radio Telegraphists Asso- ctation, 2 N. L. R. B. 1109 ; Cf. Matter of Southern California Gas Company and Uttility Workers Organizing Committee, Local No. 132, 10 N. L R. B. 1128. CONTINENTAL OIL COMPANY 817 the respondent. Such activity must be regarded as a repudiation of his designation of Local 233, thus reducing the number which had designated the Union to 14.27 The Union, therefore, at most repre- sented a majority of the employees in the unit for only a short period during the course of the negotiations. Subsequent designations of the Union by 20 of the employees in the appropriate unit were made after the action upon which the charge of a refusal to bargain is based, and no notice of these new designations was given to re- spondent. These designations therefore cannot be considered as evidence of a majority at the time of the alleged refusal to bargain. The record discloses that the respondent objected to meeting with union representatives who were not its employees, and that it failed to answer letters from the district representative of the Union on the ground that "his connection with [the] employees or the affairs of this company [were] entirely unknown." Moreover, the presenta- tion by the Union of a proposed agreement was answered by a speech by Joe Dyer to the employees in assembly, in which Dyer assured the employees that they should be satisfied with their present working conditions. Nevertheless, since the Union did not represent a major- ity of the employees during the course of these negotiations, we do not find that the respondent refused to bargain with the representa- tive designated by a majority of its employees in an appropriate unit at Salt Creek Field. 2. The company-dominated union Soon after the decisions of the Supreme Court sustaining the constitutionality of the Act, Feaster and Hainworth, two of the respondent's employees at Salt Creek Field, decided that an inde- pendent labor organization should be formed for the purpose of collective bargaining with the respondent. They communicated their intention to Bowen, production foreman for the Salt Creek Field, and asked for a conference with Shannon. Bowen arranged this conference and subsequently he and Kennelly, the foreman of the gas plant, drove Hainworth and Feaster into Casper to confer with Shannon. Hainworth told Shannon of their intention to form an inde- pendent union and asked Shannon what the "Wagner Law" provided in that respect. When asked why he consulted Shannon on a matter 27 Although we have previously held that we will discount any shift in union affiliation which is caused by a respondent's unfair labor practices , see Matter of Arthur L Cotten, and A. J. Colman, co-partners, doing business as Kiddie Koper Manufacturing Company and Amalgamated Clothing Workers of America, 6 N. L. R. B. 355, in the present case, it appears that the idea of the formation of a rival unaffiliated union originated with Feaster, without any direction or impetus from the respondent. 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of this kind, Hainworth answered, "When I want to know anything, I go to my superiors for advice." Shannon told them that under the Act they had a complete right to form and organize an inde- pendent union, and they "discussed the Wagner Act for something like 15 or 20 minutes." Hainworth then asked Shannon, "would it be an unfair labor practice if you would scratch out on a little piece of scratch paper an outline for an appropriate heading for a peti- tion?" Shannon smiled and said he would "take a chance." He then proceeded to prepare a heading for the petition .211 This petition was thereafter circulated during working hours among the employees at Salt Creek Field and in at least one instance an employee was taken from his work with the approval of his supervisor in order to sign it. The petition was thus signed by a majority of the employees at Salt Creek and was then turned over by Feaster to Bowen. Shannon acknowledged receipt of the petition in a letter which also expressed his willingness to bargain with the Salt Creek Association. The petition, however, was defective. Although providing for the designation of three employees as a committee to represent such a labor organization, the names of the three persons so to be designated were not set forth upon the petition. Later attempts by Feaster and Hainworth to organize this Salt Creek Association at subsequent meetings held for this purpose failed, and their plans never came to fruition. Despite the abortive nature of the Salt Creek Independent we be- lieve that the respondent was guilty of unfair labor practices with respect to it.29 An employer may not under the guise of advice or counsel, render assistance or aid in the formation of an organization whose purpose is that of collective bargaining with the employer. The taint of employer assistance in the process of formation will prevent the operation of such an organization as a labor organization free from employer influence. The policy of an employer in these matters must be strictly one of "hands off." In contrast, Shannon's policy was one of active assistance, aid, and encouragement. We find that the respondent by its above-described activities dom- inated and interfered with the formation of a labor organization and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 28 The heading on the petition as circulated read as follows : We, the undersigned, employees of the Continental Oil Company in the Salt Creek Field and Gasoline Plant, take this means of notifying the Company that we have grouped ourselves together for the purpose of bargaining with the Company as pro- vided by law and have duly appointed the following men to act as a committee to represent us for this purpose 29 Matter of Canvas Glove Manufacturing Works, Inc and International Glove Makers Union, Local No. 88, 1 N. L. R. B. 519. CONTINENTAL OIL COMPANY 819 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take such affirmative action as will remedy the effects of such unfair labor practices. We have found that a majority of the employees within the appropriate unit at Big Muddy Field and at the Glenrock Refinery have designated the Union as their representative for the purposes of collective bargaining and that the respondent has refused to bargain with the Union as the exclusive representative of these employees. The respondent contends, however, that even though the Union represented a majority of the employees at Big Muddy Field and the Glenrock Refinery at the time of the refusals to bargain, the respondent should not now be required to bargain with the Union, because it no longer represents a majority of the employees in these appropriate units. The evidence adduced at the hearing showed a considerable decrease in union membership. This decrease, however, is directly attributable to the respondent's unfair labor practices in refusing to recognize and deal with the Union,30 and at the Glenrock Refinery, to the additional factor of the respondent's support and encouragement of the Employees Council Plan and its continuation, the Glenrock Association. Since the abandonment of the organiza- tion was the result of the actions of the respondent, if we failed to require the respondent to bargain with the Union, we would, as stated in Matter of Lady Ester Lingerie Corp. and International Ladies Garment Workers Union-Agliated with the Committee for Indus- trial Organization 31 "be rewarding the respondent's illegal acts with partial success and permitting the effect of the unfair labor practices to continue. . . . Such [a policy] would defeat not effectuate the policies of the Act. In order to effectuate the policies of the Act, we must restore, as nearly as possible the status quo before the unfair labor practices were committed and secure to the employees their 30 Compare the language quoted from Matter of St. Joseph Stockyards . supra. 8110 N. L. R. B . 518. See also Matter of Missouri, Kansas & Oklahoma Coach Lines and International Association of Machinists 9 N. L. R B. 597. 169134-39-1,ol 12--;,3 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD right to bargain through the representatives they have selected with full freedom of choice." We shall, therefore, base our order upon the majority obtaining upon the date of the refusal to bargain and require the respondent to bargain with the Union upon request as the representatives of its employees in the appropriate unit at Big Muddy Field and the Glenrock Refinery.32 Although we have found that the respondent has not engaged in unfair labor practices in refusing to bargain with the Union as the representative of its employees at Salt Creek, we believe that the xe- spondent should be ordered to bargain with the Union when and if it is designated by a majority of the employees in the appropriate unit. The record discloses that the refusal of the respondent to bar- gain with the Union was not based upon its belief that the Union did not represent a majority of its employees but was a reiteration of the position it had adopted toward the Union at both Big Muddy Field and the Glenrock Refinery. Since the respondent has in two in- stances violated Section 8 (5) of the Act, and in another has evi- denced a similar attitude of non-compliance, we believe that the policies of the Act will best be effectuated by requiring the respondent to bargain collectively with the Union upon request as the representa- tive of the employees of the respondent in the appropriate unit at Salt Creek Field, in the event that the Union is designated as bargain- ing representative by a majority of such employees.33 We shall so order. We have found that the respondent dominated and interfered with the formation and administration of the Glenrock Association and dominated and interfered with the formation of the Salt Creek Association. Accordingly, we shall order the respondent to with- draw all recognition from the Glenrock Association, and to dises- tablish it as the representative of its employees for the purpose of dealing with the respondent concerning labor disputes, wages, hours of employment, or other conditions of employment. We will fur- ther order the respondent to withdraw all recognition from the Salt Creek Association. Since the Salt Creek Association is dormant and has ceased to function, it will not be necessary to order its disestab- lishment.34 We have found that the respondent has discriminated in regard to the hire and tenure of employment of Ernest Jones and F. D. Moore. We shall therefore order the respondent to offer to these employees Matter of Bradford Dyevng Association ( U. S. A) (a Corporation ) and Temtile Workers' Organizing Committee of the C. 1. 0., 4 N. L. R B. 604. ^Cf. Matter of West Kentucky Coal Company and United Mine Workers of America, District No 23, 10 N L. R B. 88. 84 Matter of Yates-American Machine Company and Amalgamated Association of Iron, Steel it Tin Workers of North America, Lodge 1787, 7 N. L. R. B. 627. CONTINENTAL OIL COMPANY 821 full reinstatement to their former or substantially equivalent posi- tions and to make each of them whole for any loss of pay he may have suffered by reason of such discrimination by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of the termination of his employment to the date of the offer of reinstatement, less his net earnings 35 during said period. The termination of Moore's employment caused the loss by Moore of his insurance rights pursuant to a group-insurance policy cover- ing employees of the respondent. We shall therefore order the respondent to procure for Moore the restoration of these or substan- tially equivalent insurance rights. VI. THE QUESTION CONCERNING REPRESENTATION In answer to a request by the Union for recognition as the repre- sentative of the employees in the appropriate unit at Salt Creek Field, the respondent replied that it would recognize the Union only for its own members. Subsequent letters directed to the respondent by the district representative of the Union received the reply that the respondent was unaware of the district representative's connection with its employees. In its brief, the respondent explained these replies as resulting from the failure of the Union to prove that it had been designated by a majority of the employees in the appropri- ate unit at Salt Creek Field. We find that a question has arisen concerning representation of employees of the respondent at Salt Creek Field. 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 tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. "By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for the unlawful termination of his employment and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpen- ters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for ,%ork performed upon Federal, State, county, municipal, or other work-relief projects are not considered as earnings , but, as provided below in the Order, shall be deducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work- relief projects. S22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD VIII. THE DETERMINATION OF REPRESENTATIVES We have already found the appropriate unit at Salt Creek Field as including the employees engaged in field operations but excluding the production foreman and the clerk and those engaged in the opera- tion of the gas compression and reduction plant. We have also found that at the time of the alleged refusal to bargain, the Union had not been designated as their bargaining agency by a majority of the employees in said appropriate unit. Subsequent thereto, cards desig- nating the Union as their bargaining representative were signed by a majority of the employees. During the same period, the petition circulated by Feaster and Hainworth was also signed by a majority. Although we have found that the respondent was guilty of unfair labor practices with regard to the preparation and circulation of this petition, under the circumstances of this case we do not believe that we should certify the Union as bargaining representative. We find that the question which has arisen concerning representation of em- ployees of the respondent at Salt Creek Field can best be resolved by holding an election by secret ballot. We have found the Salt Creek Association to have been formed in violation of the Act. Accordingly the name of the Salt Creek Association will not appear upon the ballot. Although the Union requested that the date for the determination of eligibility to vote be September 1937, we believe this date to be too remote, and we will accordingly direct that the date for the determi- nation of eligibility be that of the pay roll next preceding the date of the Direction of Election. 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 and Independent Association of Conoco Glenrock Refinery Employees are labor organizations, and Continental Employees Bargaining Association was a labor organiza- tion, within the meaning of Section 2 (5) of the Act. 2. The employees of the respondent at Big Muddy Field, excluding the production foreman and clerical employees, but including head roustabouts, constitute a unit appropriate for the purposes of collec- tive bargaining, within the meaning of Section 9 (b) of the Act. 3. Oil Workers International Union was in August 1935, and at all times thereafter has been, the exclusive representative of all em- ployees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. CONTINENTAL OIL COMPANY 823 4. By refusing to bargain collectively with Oil Workers Interna- tional Union as the exclusive representative of its employees in the appropriate unit, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act. 5. The production and maintenance employees of the respondent at its Glenrock Refinery, exclusive of supervisory and clerical em- ployees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 6. Oil Workers International Union was, in August 1935, and at all times thereafter has been, the exclusive representative of all employees in such unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 7. By refusing to bargain collectively with Oil Workers Interna- tional Union as the exclusive representative of the employees in the appropriate unit, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act. 8. By discriminating in regard to the hire and tenure of employ- ment and the terms and conditions of employment of Ernest Jones and F. D. Moore, thereby discouraging membership in Oil Workers International Union, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 9. By dominating and interfering with the formation and adminis- tration of Independent Association of Conoco Glenrock Refinery Employees, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 10. By dominating and interfering with the formation of Conti- nental Employees Bargaining Association, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 11. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 12. The unfair labor practices enumerated above are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 13. A question affecting commerce has arisen concerning the repre- sentation of the respondent's employees at Salt Creek Field within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 14. The production employees of the respondent at Salt Creek Field, including head roustabouts but excluding the production fore- man, the clerk, and employees engaged in the operation of the gas compression and reduction plant, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 15. The respondent did not, by refusing to bargain with the Union as the representative of its employees at Salt Creek Field, engage in unfair labor practices within the meaning of Section 8 (5) 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- ent, Continental Oil Company, Ponca City, Oklahoma, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Oil Workers Interna- tional Union as the exclusive representative of all the employees of the respondent at Big Muddy Field, excluding the production fore- man and clerical employees but including head roustabouts, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) Refusing to bargain collectively with Oil Workers Interna- tional Union as the exclusive representative of the production and maintenance employees of the respondent at its Glenrock Refinery, exclusive of supervisory and clerical employees, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (c) Dominating or interfering with the administration of Inde- pendent Association of Conoco Glenrock Refinery Employees, or with the formation of Continental Employees Bargaining Association, or with the formation or administration of any other labor organization of its employees, and from contributing support to said Associations or to any other organization of its employees; (d) Discouraging membership in Oil Workers International Union or any other labor organization of its employees by transferring, dis- charging, or refusing to reemploy any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of their employment; (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in CONTINENTAL OIL COMPANY 825 concerted activities for the purpose of collective bargaining or other mutual aid and 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) Upon request bargain collectively with Oil Workers Inter- national Union as the exclusive representative of all the employees of the respondent at Big Muddy Field, excluding the production foreman and clerical employees, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) Upon request bargain collectively with Oil Workers Interna- tional Union as the exclusive representative of the production and maintenance employees of the respondent at its Glenrock Refinery, exclusive of supervisory and clerical employees in respect to rates of pay, wages, hours of employment, and other conditions of employment ; (c) In the event that Oil Workers International Union is selected in the election hereinafter directed as the representative of the em- ployees in the appropriate unit at Salt Creek Field and is thereafter certified by this Board as the exclusive representative of such employ- ees, then, upon request, bargain collectively with Oil Workers Inter- national Union as the exclusive representative of the production employees of the respondent at Salt Creek Field, including head roustabouts but excluding the production foreman, the clerk, and employees engaged in the operation of the gas compression and re- duction plant, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (d) Withdraw all recognition from Independent Association of Conoco Glenrock Refinery Employees as the representative of any of its employees for the purpose of dealing with the respondent con- cerning grievances, labor disputes, wages, hours of employment, and other conditions of employment, and completely disestablish Inde- pendent Association of Conoco Glenrock Refinery Employees as such representative; (e) Withdraw all recognition from Continental Employees Bar- gaining Association as the representative of any of its employees for the purpose of dealing with the respondent concerning griev- ances, labor disputes, wages, hours of employment, and other condi- tions of employment; (f) Offer to Ernest Jones and F. D. Moore immediate and full reinstatement to the positions formerly held by them at Big Muddy Field or positions substantially equivalent thereto at said Field, without prejudice to their seniority, insurance, or other rights and privileges ; 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (g) Make whole Ernest Jones and F. D. Moore for any loss of pay or other pecuniary loss they may have suffered by reason of the respondent's acts by payment to each of them of a sum of money equal to that which he would normally have earned as wages during the period from the date of the termination of his employment to the date of the respondent's offer of reinstatement, less his net earnings during that period, deducting, however, from the amount otherwise due to each employee monies received by said employee during said period for work performed upon Federal, State, county, municipal, or other work-relief projects and pay over the amounts so deducted to the appropriate fiscal agency of the Federal, State, county, mu- nicipal, or other government or governments which supplied the funds for said work-relief projects; (h) Procure for F. D. Moore the restoration of insurance rights, which he lost upon the termination of his employment; (i) Post immediately in conspicuous places throughout the plants involved and keep posted for at least sixty (60) consecutive days, notices stating (1) that the respondent will cease and desist as afore- said; (2) that the respondent will upon request bargain collectively as provided in 2 (a), (b), and (c) above; (3) that the respondent withdraws all recognition of Independent Association of Conoco Glenrock Refinery Employees as a representative of any of its em- ployees and completely disestablishes it as such representative; and (4) that the respondent withdraws all recognition of Continental Em- ployees Bargaining Association as a representative of any of its employees ; (j) Notify the Regional Director for the Twenty-second Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply therewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent by its refusal to bargain with the Union as the exclusive bargaining representative of its employees in an appropriate unit at Salt Creek Field, 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 Rela- tions 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 CONTINENTAL OIL COMPANY 827 with Continental Oil Company, Ponca City, Oklahoma, an election by secret ballot shall be conducted within twenty (20) days from the date of this Direction, under the direction and supervision of the Regional Director for the Twenty-second 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 the production employees of Continental Oil Company at Salt Creek Field, whose names appear upon the pay roll of the respondent next preceding the date of this Direction including head roustabouts but excluding the production foreman, the clerk, and employees engaged in the operation of the gas compression and reduction plant, to de- termine whether or not they desire to be represented by Oil Workers International Union for the purposes of collective bargaining.