American Oil Company, Inc. (Curtis Bay Plant)

In the Matter of AMERICAN OIL COMPANY, INC. (CURTIS BAY PLANT) and OIL WORKERS INTERNATIONAL UNION, LOCAL No. 411 Cases Nos. C-1008 and R-793.-Decided August 23, 1939 Oil Refining and Distributing Industry-Interference, Restraint, and Coercion: anti-union statements and activities of supervisory employees-Compa-ny- Dominated Union: domination of and interference with formation and adminis- tration ; solicitation by foremen on paper bearing letterhead of respondent ; failure of respondent to disavow acts of supervisory employees ; refusal to recognize ordered-Discrimination: discharges, allegation in complaint as to, dismissed- Investigation of Representatives : question concerning representation of em- ployees : petitioning union not recognized by employer-Un.it Appropriate for Col-' lective Bargaining : clerical and maintenance employees at plant excluding named supervisory employees, watchmen, engineers , and firemen-Election Ordered: time for and eligibility date to be fixed after effect of unfair labor practices dissipated ; company-dominated union excluded from ballot. Mr. Reeves R. Hilton, for the Board. Mr. C. H. Thompson and Mr. J. K. Eagan, of Baltimore, Md., for the respondent. Mr. J. L. Coulter and Mr. E. C. Conartz, of Washington, D. C., and Mr. Joseph F. Hassett, of Baltimore, Md., for Local 411. Mr. Warren N. Arnold, of Baltimore, Md., for the Association.. Miss Margaret M. Farmer, of counsel to the Board. DECISION ORDER AND DIRECTION OF ELECTION STATEMENT OF THE CASE On August 17,1937, Oil Workers International Union, Local No. 411; herein called Local 411, filed with the regional Director for the Fifth Region (Baltimore, Maryland) a petition 1 alleging that a question affecting commerce had arisen concerning the representation of em- ployees of American Oil Company, Inc., herein called the respondent, 1 Although the petition was signed by the Oil Workers' International Union, it is clear both from the petition itself and from the evidence adduced at the hearing that the petition was filed in behalf of Oil Workers International Union, Local No. 411. 14 N. L. R. B., No. 77. 990 AMERICAN OIL COMPANY, INCORPORATED 991 at its Curtis Bay Plant, Baltimore, Maryland,2 and requesting an inves- tigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On December 30, 1937, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III5 Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended , ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. Upon charges and amended charges duly filed by Local 411, the Board, by its Regional Director, issued its complaint dated April 4, 1938, against the respondent, alleging that the respondent had engaged in. and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act. Copies of the petition and accompanying notice of hearing were duly served upon the respondent and upon Oil Workers International Union. Copies of the complaint and accompanying notice of hearing were duly served upon the respondent and upon Local 411. A notice of the filing of charges, a copy of the complaint, notice of the date of the hearing thereon, and permission to file a motion to intervene were served upon American Oil Company Curtis Bay Employees Association, herein called the Association. With respect to the unfair labor practices, the complaint alleged in substance (a) that the respondent, on or about December 1, 1937, spon- sored the formation of the Association, has since that time dominated and interfered with its administration, and has contributed financial and other support to it; (b) that on various dates in June and Decem- ber 1937, and in January 1938, the respondent discriminatorily dis- charged and has since refused reinstatement to six employees, namely : Charles Henry Freidel, Robert H. Ingraham, Francis Raymond 4-IcCtlrtin, William Earle, Joseph Cincotta, and John Edmund King, .,for the reason that said employees joined and assisted Local 411; and (c) that by the aforesaid acts and in other ways, the respondent has interfered with, restrained, and 'coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On April it, 1938, the Association filed with the Regional Director a motion to intervene. On April 12, 1938, the respondent filed an answer to the complaint, admitting the nature of its business as de- scribed in the complaint, and denying that it had engaged in or was engaging in unfair labor practices. It averred by way of affirmative . 20n December 30, 1937, the instant case was consolidated with Case No. R-703, a case initiated by a petition filed by Oil Workers' International Union requesting an investigation and certification of representatives of the respondent 's employees in its plants at South Washington and Rosalyn , Virginia. On March 1 , 1938, the cases were ' severed. 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD defense that the six employees named in the complaint were each of then discharged for specific reasons set forth in its answer. Pursuant to notice, a hearing on both the petition and the complaint was held at Baltimore, Maryland, from April 14 to 21, 1938, before Harlow Hurley, the Trial Examiner duly designated by the Board. The respondent and the Association were represented by counsel, and the Oil Workers International Union and Local 411 by their repre- sentatives. All except the Oil Workers International Union partici- pated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded to all parties. During the course of the hearing the Trial Examiner granted the Association's motion for leave to inter- vene, granted a motion made by the Board's attorney to conform the pleadings to the proof, and made rulings on other motions and on objections to the admission of evidence. We have reviewed the rulings of the Trial Examiner and find that no prejudicial errors were committed. The rulings are hereby affirmed. On October 25, 1938, the Trial Examiner filed his Intermediate Report, copies of which ,were duly served upon the parties, finding that the respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist therefrom, withdraw all recognition from and completely disestablish the Association as a collective bargaining agent for its employees, and take certain other appropriate action to remedy the situation brought about by its unfair labor practices. He further recommended the reinstatement with back pay of Francis Ray- mond McCurtin, an employee found to have been discriminatorily dis- charged. In addition, the Trial Examiner found that the respondent had not discriminatorily discharged Charles Henry Freidel, Robert H.. Ingraham, William Earle, Joseph Cincotta, and John Edmund King, and recommended that the allegations of the complaint in respect to said employees be dismissed. On November 19, 1938, the respondent filed exceptions to the Inter- mediate Report and requested oral argument before the Board. On March 1, 1939, the respondent filed a brief with the Board. Pursuant to notice a hearing was held before the Board in Washington, D. C., on March 2, 1939, for the purpose of oral argument. The respondent was represented by counsel and participated in the argument. ' The other parties to the proceeding did not appear. The Board -has consid- ered the briefs and the exceptions to the Intermediate Report and finds the exceptions, except such as are consistent with the decision and order herein, to be without merit. Upon the entire record in the case, the Board makes the following: AMERICAN OIL COMPANY, INCORPORATED FINDINGS OF FACT 1. THE I ITSINESS OF THE RESPONDENT 993 American Oil Company, Inc., a wholly owned subsidiary of Pan American Petroleum & Transport Company, is a Maryland corpora- 'tior', with its principal place of business at Baltimore, Maryland. It is engaged in the business of refining, distributing, and marketing the parent company's products in Maryland, District of Columbia., Virginia., West Virginia, North Carolina, South Carolina, Georgia, Pennsylvania., New Jersey, Delaware, and Ohio. The Company main- tains it terminal at Curtis Bay, Baltimore, Maryland, at which raw prod Picts, received by barge from the parent company, are refined, stored, and ultimately delivered by railroad and truck to branches in the localities named above. During 1937 the respondent received at the Curtis Bay plant, processed, and distributed to its branches ap- proximately 40 million gallons of gasoline and a large amount of oil. The instant case concerns only the employees at the respondent's 'Curtis 'Bay plant. During its normal seasons, which occur roughly in the fall and spring, the respondent employs approximately 90 employees at this plant. II. THE ORGANIZATIONS INVOLVED Oil Workers International Union, Local No. 411, is it labor organi- zation affiliated with Oil Workers International Union, which is in turn affiliated with the Congress of Industrial Organizations, herein called the C. I. O. It admits to membership employees of the respondent at the Curtis Bay plant except supervisory employees. _ A nerican Oil Company Curtis Bay Employees Association is an unaffiliated -labor organization admitting to membership all employ- ees of the respondent at its Curtis . Bay Plant with the exception of the manager and the chief chemist. III. TIIE UNFAIR LABOR PRACTICES A. Events prior to the formation of the Employees Association Union activity at the Curtis Bay Plant of the respondent com- .nienced about May 15, 1937. Between that date and June 29, 1937, certain of the respondent's employees successfully solicited the in- terest and support of their fellow workers in the formation of a local ender the jurisdiction of the Oil Workers International Union. At least three of the respondent's supervisory employees knew of this activity, actively disapproved of it, and attempted to curb it. Qutschky, at that time yard foreman, and Bland, the plant manager, 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discussed the union activity of the men and made plans for running the plant in case a strike should be called. Esler, the chief clerk in charge of the Curtis Bay clerical staff, informed Bland in June 1937 that the employees were organizing and suggested that an at- tempt be made to "form an organization of our own down here." According to. Esler, Bland replied that the C. I. O. had gone _,to great length and it would be a good idea. As a result of this con- versation and shortly following it, Esler called a meeting of the employees in the plant yard during a noon hour. At the meeting Esler announced. that he favored the formation of an "inside" organi- zation on the ground that, as he expressed it, "you can always catch more honies with sugar than you can with vinegar. You know what you will get from the C. I. 0." He invited anyone who wished to join such an organization to see him after the meeting. This offer was not accepted and Esler temporarily dropped the matter. The organization of the proposed C. I. O. affiliate went rapidly forward. A charter was obtained and on June 29, 1937, Local 411 was formally organized with the election of officers and the adop ,tion of the constitution of the parent union. On July 8, 1937, the members of a committee of Local 411 met with a committee of the respondent, asserted that they represented the majority of the Curtis Bay employees, requested that Local 411 be recognized as the collec- tive bargaining agent for the employees, and presented orally certain demands in regard to wages and hours. The respondent conceded "for the sake of argument" that the committee of Local 411 repre- sented the majority of the Curtis Bay employees, and entered into negotiations which extended over a period of 4 months. Although the record does not disclose the details of the various conferences held during the course of the negotiations, it seems clear that the respondent refused to enter into a written agreement with Local 411, that an oral agreement embodying a provision for a general wage increase was finally reached, and that eventually an irreconcilable difference of opinion as to the interpretation of said agreement caused a strike at the plant which extended from November 8 to 18, 1937. During the period of the negotiations, Bland and his yard fore- man, Putschky, openly expressed hostility to Local 411 and an- tagonism toward the men under them. The respondent contends that such hostility and antagonism were in violation of the policy of the Company, and that the expression of this attitude was the out- standing reason for the forced resignation of Putschky on August 17, 1937, and for the transfer of Bland to another division of the respondent during the strike. Putschky admitted at the hearing that he had made anti-union statements. He stated that the men had threatened reprisals for such statements and that Bland had AMERICAN OIL COMPANY, INCORPORATED 995 advised him to be more careful. He apparently accepted the advice, testifying that he "shut up like a clam about the Union" prior to his resignation. The record indicates that the immediate cause of his removal was not anti-union activity but rather some matter detri- mental to Putschky's character, the exact nature of which was not disclosed at the hearing. .There is no evidence that the respondent made any investigation at this time to determine the extent to which supervisory employees were interfering with union activity of its employees. As to Bland,. Arthur Wakefield, the manager of the terminals of the respondent, testified that, as a result of- reports of Bland's hostile attitude and interference with the men given him from time to t-ne by an office assistant, he had spoken to Bland approximately 10 days before the November strike and had warned him that a continuation of his activity would constitute grounds for his discharge. The immediate cause of Bland's removal was the fact that during the strike his rela- tions with the men under him resulted in his request that firearms be sent from another terminal to protect him from threatened vio- lence to his person. We do not doubt that the respondent warned Putschky and Bland against open antagonism toward the employees under their juris- diction. However, the respondent failed to take any steps to assure the employees of its allegedly neutral attitude toward. union activity. There is no indication in the record that -the employees. were led in any way to attribute the resignation of Putschky or the removal of Bland to the respondent's disapproval of-the flagrant violation of such neutrality. No notices were posted to the effect that -the em- ployees were free to join a labor organization of their own choosing. The statements of Bland and Putschky were allowed to remain- in the minds of the employees as statements of supervisory employees who expressed the views of the respondent. Under the circumstances we find such statements and the hostile attitude toward union activ- ity.-displayed by said supervisory employees attributable . to the respondent.' 3 See Matter of M. Lowenstein d Sons, Inc. and Bookkeepers', Stenographers', and Accountants' Union, Local No. 16, United Office and Professional Workers of America, C. I. 0.; M . Lowenstein d Sons, Inc. and Tevtile Workers' Organizing Committee of Local No. 65, C. 1. 0.; If. Lowenstein. d Sons, Inc. and United Wholesale B'nrploy/ees of New York, 6 N. L. R. B. 216 at 232 ; Matter of The A . S. Abell "Company, a corporation and International Printing Pressmen's Union, Baltimore Branch, Baltimore Web Pressmen's Union No..71, 5 N . L. R. B. 644 , 649, modified and affirmed in National Labor Relations . Hoard v. A. S. Abell Co., et at., 97 F. (2d) 951 . In Matter of Swift d Company, a corporation and Amalgamated Meat Cutters and.Butchcr Workmen of North America, Local No . 641 and United Packing House Workers, Local Industrial Union No. 300, 7 N. L. R. B. A9 'at 284, affirmed in part in Swift and Company , a corporation v. National Labor Relations Board, 106 F. (2d) 87 (C. C. A. 10, June 7 , 1939 ), we said : We attach little weight or importance to the alleged warnings given the fore- men by the respondent about their solicitation of employees , for the evidence 996 DECISIONS Or NATIONAL LABOR RELATIONS BOARD We find that the respondent, by the statements and activities of its plant manager, yard foreman, and chief clerk at the Curtis Bay Plant, occurring between June and November 1937, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The Employees Association, During the November strike mentioned above, the respondent sum moned its employees to the main uptown office for the purpose of informing them of its position in the current controversy. After setting forth the issues involved, C. H. Wagner, the general manager of the respondent, threw the meeting open for discussion. There- upon one Shaffer, a foreman in the canning department, inquired if the men "could form any union whatsoever to their liking." Wagner did not reply to this question. Instead, he left the room. Another representative of the respondent extracted a small book from his pocket and read aloud Section 7 of the Act. Apparently neither explanation nor discussion accompanied the reading of this section. After its reading, the meeting was terminated. The respondent later summoned the employees to the main office to receive their pay, cheeks. At that time, Wakefield informed some and perhaps all the strikers that their jobs awaited their return to work. There is no indication in the record that the respondent expressed hostility or prejudice against Local 411 during this period. The strike was not successful. Its termination was ordered on November 17 by Oil Workers Inter- national Union upon condition that the respondent resume negotia- tions with Local 411 within the following 10 days. At the time of the hearing, however, Local 411 had made no further attempt to bar- gain with the respondent and negotiations had not been resumed. After the meeting held during the strike in the respondents main office, Irving. Buhman, a clerk in the shipping department of the Curtis Bay Plant, started the organization of an "inside" union. During the latter part of November, he discussed the matter with Esler, the chief clerk whose prior attempt to organize an "inside" union is described above, with Shaffer, the foreman whose inquiry concerning an "inside" union had prompted the reading of Section 7 of the Act at the respondent's meeting, and with Parry, a foreman in the sealed-can division of the plant. thereof, in view of the authority of the respondent in such matters , shows that the respondent could not have seriously believed that it had taken effective means to prevent such practices . Moreover, the respondent , under the circumstances. cannot disavow the support which its supervisory employees accorded the League. These is no showing that the employees understood , or that the respondent sought to make clear to them, that its foremen were acting without the acquiA^cgiice: if not pursuant to the direction , of the respodent. AMERICAN OIL COMPANY, INCORPORATED 997 During working hours on December 1, 1937, Buhman typed on the stationery of the respondent and addressed to the Regional Director of the Board, a petition which read as follows : DEC. 1, 1937. REGIONAL DIRECTOR, National Labor Relations Board, Baltimore, Md. We the undersigned representing a majority of the employees of the American Oil Company, Curtis Bay Terminal, request that we be recognized as the proper agent for collective bar- gaining. The petition was circulated among the employees at the plant dur- ing working hours on December 1, 1937, by Buhman, Esler, and Parry. Forty-eight signatures were obtained . Esler mailed the petition to the Regional Director and received in reply an inquiry as to whether the group whose signatures appeared on the petition con- stituted a labor organization and whether the organization , if any, had a name . During the last week of December, Buhman urged Frank J. Heinle, the assistant to the chief chemist in the respondent's laboratory, to undertake the formation and leadership of an "inside" organization . Heinle demurred at first, but on January 3, 1938, after having been again approached by Buhman, decided that "something must be done." He directed Buhman to call the employees together. for a, noon meeting in the warehouse. Permission to use the ware- house was subsequently obtained from Ward , the plant manager. Heinle announced to the approximately 50 men who attended the meeting that it was necessary for the group to choose a name for the proposed organization and to elect officers in order that the inquiry of the Board might be answered and in order that they might be rec- ognized by the Board as bargaining agent. He explained the purpose of the organization. To quote his words, "I told them it was a labor organization ; that I did not know what the rules were that we would have until we heard from the Labor Board, until we sent this in. In the meantime we were an association both for collective bargaining and sociability of the employees ." An entertainment committee of the members was elected at his suggestion and charged with the man- agement of a dance in order that money might be raised for the treasury. Heinle was "appointed" president by an employee present with the consent of the group. Esler and Buhman were elected secre- tary.and treasurer respectively. On March 10 , 1938, a meeting was called in Fish Paws Hall in Baltimore to complete the organization of the Association by the adoption of a constitution and bylaws and the election of additional officers. The election of officers was completed by the transformation 998. DECISIONS - OF 'NATIONAL LABOR RELATION S- BOARD of the entertainment conimittee-into the board of directors and by the election of one member of this committee, I. T. Adams, as v.ice'presi- dent. Adams, known as Cy Adams throughout the plant, was the° foreman of the respondent's yardmen. The group adopted the name American Oil Company Curtis Bay Employees Association. The Association has never requested the respondent to recognize it as a collective bargaining agent for the Curtis Bay employees, although it claimed at the hearing that it represented approximately 90 per cent of said employees. Apparently no meeting was held between the organization meeting of March 10, 1938, and the close of the hearing on April 21, 1938. The initial steps taken in the formation of the organization show the participation of the respondent. Of the four men who circulated the petition for the formation of the Association, three, namely, Esler' Parry, and Shaffer 4 were supervisory employees. The second'page of the petition bore the letterhead of the respondent. The petition 'of was circulated during working hours and the first meeting organization was held on the respondent's property. As the Associ-' ation, was eventually organized its officers inevitably represented the interests of the respondent rather than the interests of the employees. Heinle, its president, was assistant to the chief chemist. His duties involved the conveying of orders to the laboratory testers. He pos- sessed confidential information concerning chemical formulae and his salary was but slightly lower than that of the manager of the ter: min al. His laboratory was not in the plant and his testimony shows that he was not familiar with conditions there. Adams, the vice president, was yard foreman. Esler was chief clerk in charge of the' Curtis Bay clerical staff during an important formative stage of the Association's development. We find that the respondent has dominated and interfered . with the formation and administration of the Association, has contributed' support thereto, and has thereby interfered with, restrained, and; coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The discharges Charles Henry Freidel had-been employed by the respondent as a. painter and general utility man for 13 years prior to his discharge on December 23, 1937. During this period he had frequently been sent to points outside Baltimore to paint structural work, pipe lines, and equipment. A few days after the strike, he and another painter named Posther were assigned a truck and dispatched to Altoona, 4 The attitude of Shaffer toward collective bargaining is apparent from his testimony that he was "always man enough " to go to his superiors as an individual to request' a raise in wages. AIIERICAN O1L COMPANY, INCORPORATED 999 Pennsylvania, to paint storage tanks. Although the helpers hired for 'the job were placed on the pay roll and under the jurisdiction of the district manager of the respondent in Altoona, Freidel and Posther were responsible solely to Wakefield in Baltimore. At noon on November 30, Freidel •and Posther drove to Altoona, parked their 'truck in front. of a physician's office, and proceeded around the corner to a restaurant. At the restaurant they became so intoxicated that' they decided to spend the rest of the afternoon in the hotel in which they were registered instead of returning to work. During the afternoon the physician in front of whose office the truck had been parked, called Fasick, the manager. of the plant in Altoona, to inform him that two very intoxicated men were vainly attempting to get a company truck out of its parking space. Fasick sent two men to the scene with orders to drive the truck to the garage. Later in, the afternoon, in response to a telephone call from a source which is not identified. in the record, he sent a salesman to town with his car to bring Posther and Freidel to the plant. When they arrived, at the plant, Posther was too intoxicated to leave the car. Freidel,. slightly less intoxicated, entered the offices, first of Basil S. Tittle,. the division manager, and then of Fasick, to complain about the removal of the truck from its parking place in town. He was twice. ordered off the premises by Tittle. Tittle did not, however, have, power to discharge him. Wakefield arrived in Altoona on or about December 15, 1937,' to. Inspect the work being done' on the tanks. ' Since the weather had. been inclement it had not been 'possible to work steadily on the job,, And Wakefield decided to discontinue the work for the season. He ordered Posther and Freidel to return to Baltimore. Later in the. day Tittle reported to him that Freidel and Posther had been drink- ing during working hours and related the episode of the abandoned- truck. When Wakefield retur'ned' to. Baltimore, he summarily discharged both Freidel and Posther. Wakefield testified at the hearing that because of the hazards; caused by the presence of inflammable materials in the plants, the- respondent had adopted a rule that a man who was intoxicated on the job would be immediately discharged. Wakefield admitted that. this rule was not posted in the plant but insisted that it was well known to the employees. Local 411 contended that Freidel's dis- charge was due solely to his union membership and activity. It was: shown in support of this contention that he had at one time been a. member of the grievance committee of Local.411. It appears, how- ever, that he had resigned this post long prior to his discharge and, that' at the time of his discharge he was not more active in union affairs than many other members. Moreover Posther, who was dis-- 1000-15--40-vol. 14----04 _1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charged at the same time and under the same circumstances was not a union member. We believe the contention of Local 411 to be without merit. We find that Freidel's discharge. was for reasons other than his union membership and activity. Robert H. Ingraham had been employed by the respondent as a welder for 11 years at the time of his discharge on June 30, 1937. For approximately 6 months prior to. that date he had been engaged in welding the seams of underground iron tanks. Tanks which had been purchased for the pumping department would begin to leak .from time to time and would be sent to Curtis Bay to be repaired. However, reports from the field indicated that they continued to leak even after the seams had been rewelded and the respondent decided to discontinue their use. The tanks in the warehouse, upon which Ingraham was working, were consequently discarded and were re- placed by galvanized iron tanks. Other welding at the plant. had -decreased to such an extent that it was decided to discontinue the :.services of a welder. Since that time welding work has been let out to an independent contractor. on After Ingraham's discharge, lie was employed by one Myers on the recommendation by both Wakefield and Wakefield's assistant. At the time of the hearing, he had worked as Myers' employee on two short contract jobs at the respondent's plant. We find that Ingraham was discharged by the respondent on June :30, 1.937, for reasons other than his union membership and activity. Francis Raymond McCurtin was employed by the respondent as a clerk at the Curtis Bay plant in 1934. For some time prior to his transfer to the Eastern Avenue warehouse on November 22, 1937, lie 'had been serving as tank-car shipping clerk. Although under the ,Jurisdiction of the manager, of the Curtis Bay Terminal, the major part of McCurtin's work consisted in receiving shipping orders by telephone from E. H. Miller, traffic manager of the respondent's central territory, and transmitting these orders to the loading-rack foreman at the plant. The record is not clear as to exactly what steps were involved in this process. It appears, -however, that-Miller telephoned to McCurtin information concerning orders which he had received from the sales department. He informed McCurtin of the amount and type of gasoline or other products to be shipped to a named customer. If the customer was new, lie sometimes speci- fied the railroad over which the shipment was to be. routed. McCur- tin determined the weight of the shipment, usually determined the route over which 'the shipment was to be dispatched, and assigned to it a car number from a list supplied him. Every evening the completed day's orders were checked back by telephone with Miller. AMERICAN OIL COMPANY, INCORPORATED 1001 Miller stated that McCurtin had been slow in learning the work but that he had finally become very efficient. He testified, however, that during a long period prior to his transfer from the Curtis P>ay .Plant, McCurtin had been subject to intermittent but increasingly frequent periods of carelessness. He testified that this carelessness took the form of noting inaccurately the commodity to be shipped -or the number of the car to which it had been assigned. Although .these errors were usually corrected in the various processes of check- ing, to which they were subjected before orders were' shipped, this was not always the case. Shortly before, his transfer to the Eastern Avenue warehouse, McCurtin had been responsible for the shipment ,of the, wrong commodity to a customer. Miller complained of these errors to McCurtin, to Bland, manager of the terminal during this period, and to Wakefield. In response to these complaints, Wake- field, during the summer of 1937, commissioned one Grassmuck, the respondent's personnel manager, to devise a system of receiving and transmitting orders which. would curtail the making of errors by McCurtin. A system was devised but was not adopted. There is some evidence that a further. investigation, undertaken by the accounting department, resulted in a report to Wakefield by :Sands, the treasurer of the respondent, that McCurtin was not quali- fied to do the work required of hiin. Sands recommended that he be transferred to another department. During the strike, McCurtin's place was satisfactorily filled by another employee. At the termination of the strike, on November 18; 1937, McCurti-n was not reinstated to his former position. On November 22 he was transferred to the position of tire clerk at the Eastern Averiue warehouse. His duties consisted of keeping a daily record on forms provided for the purpose, and of submitting a monthly report to the auditing department of the number of tires received and stored in the warehouse and sold or disbursed on con- sigment to the yaxious branches of the respondent. McCurtin experienced great difficulty in carrying out this task. Despite de- tailed oral and written instructions given him by John V. Fisher, the auditor of the respondent, and despite some assistance proffered by his fellow office workefs, he failed to understand what was re= quired of him. He was tendered 2 weeks' advance salary and dis- charge(] by the respondent on January 31, 1938. The complaint alleges that McCurtin was discharged because of his union membership- and activity. McCurtin was vice president of Local 411. His transfer to the Eastern Avenue warehouse necessi- tated a late arrival at union meetings. He testified, however, that he r;el:ained his office and-continued. his union activity after his transfer. There is no evidence in the record that union meetings could not 1002 DECISIONS Of NATIONAL LABOR _ IRELATIONS 'BOARD have been arranged to make possible his full attendance. The Trial Examiner recommended that McCurtin be reinstated with back pay from the time of his discharge to the date of an-offer of reinstatement. The Trial Examiner rested his recommendation upon his findings : (a) that during the 2-month. period-.. McCurtin served, as, inventory clerk at the uptown office, he could- iiot' conveniently meet his fellow union members at Curtis Bay, (b) that the respondent had failed to^ explain adequately the retention of McCurtin at Curtis Bay for a long period of time, despite complaints, until the strike, (c) that the- respondent transferred McCurtin to a position which the respondent knew to be beyond McCurtin's ability, and (d) that, although well aware that said position was beyond McCurtin's ability, the respond- ent discharged him upon his failure to perform it instead of offering him the opportunity to return to his former position of billing clerk, a position which he had satisfactorily filled for a long period of time. We cannot agree with these findings of the Trial Examiner.. Although the respondent has not proved conclusively that certain of' the mistakes attributed to McCurtin may not have been properly attributed to others, McCurtin admitted frankly that his mistakes had been numerous, that some had antedated his union activity, and: that Miller had complained frequently of them. Had the strike root. occurred; McCurtin might or might not have been transferred, to, the position of tire clerk on November 22. The employee who filled McCurtin's place during the strike, proved efficient. Under the cir cumstances,- we do not believe that the reasons advanced by the re- spondent to be pretexts to disguise undisclosed motives nor do we, find that the duties of tire clerk were necessarily beyond the under- standing of a clerk of McCurtin's training and experience. We find that McCurtin was transferred to the Eastern Avenue, warehouse and subsequently discharged therefrom for. reasons other than union activity. William R. Earle, Joseph Cincotta, and John Ednn nd Kelly, em ployed by the respondent as temporary laborers, were discharged on December 3, December 1.1, and December 31, 1937, respectively: There is nothing in the record to indicate that the union membership, and activity of these employees influenced their discharge. None of the three was prominent in union affairs. Ward, manager of the. Curtis Bay Plant, testified that 12 men were laid off in December in addition to Earle, Cincotta, and King because the work for which they were engaged was completed at that time. "Of these 12 men, 4 had not participated- in the strike. Furthermore, Cincotta admitted' that members of Local 411 were retained after his discharge. We find that Earle, Cincotta, and King were discharged for reasons other than their union activity. AMERICAN OIL COMPANY, INCORPORATED 1003 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III A and B above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and :substantial relation to trade, traffic, and commerce among the several :States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair -labor practices, we shall order it to cease and desist from further engaging in such practices. We shall also order the respondent to take certain affirmative action which we believe necessary to effectuate the policies of the Act. We have found that the respondent sponsored the formation and has dominated and interfered with the administration of the Em- ployees Association. We are satisfied and we find that a labor organi- zation which is established under the circumstances described above is subservient to the employer's wishes, does not reflect the free choice of the employees, and. cannot act as their bona fide representa- tive for collective bargaining. We shall, therefore, order that the respondent refuse to recognize the Employees Association as the col- lective bargaining representative for any of its employees. VI. THE QUESTION CONCERNING REPRESENTATION As noted in Section III above, the respondent admitted "for the sake of argument" that the negotiating committee of Local 411 repre- sented the majority of the employees at the Curtis Bay Plant. How- ever, there is no evidence in the record tending to show that Local 411 was at any time recognized by the respondent as exclusive bar- gaining agent for said employees. The fact that in August 1937, with, the consent of the Union, and during the November strike, without such consent, the respondent called the employees together and ad- dressed them as individuals upon matters commonly dealt with through a negotiating committee, indicates that no such recognition was accorded Local 411. We find that a question has arisen concerning the representation of employees of the respondent. 1'II. TIIE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has atisen, occurring in connection' with the operations of the respondent -described in Section I above, has a close, intimate, and substantial 1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. VIII. THE APPROPRIATE UNIT Local 411 alleged that the clerical, production, and Maintenance employees of the respondent at the Curtis Bay Plant; excluding supervisory employees, watchmen, firemen, and engineers constitute an appropriate bargaining unit. The respondent raised no objection to the choice of said unit. Local 411 seeks the inclusion of clerical employees within the unit, and the respondent does not object to such inclusion. We shall in- clude clerical employees within the appropriate unit. Local 411 desires the exclusion from the unit of Harry E. Ward,. Jr., manager, and J. M. Klein, chief chemist. These employees are clearly employed in a supervisory capacity and will be excluded from the unit. Local 411 also desires the exclusion from the unit of the following employees: I. T. Adams, yard foreman; J. A.'Dinsmore., foreman of the lubrication department; I. Parry, foreman in charge of the canning department; W. W. Shaffer, a strawboss; F. J. Heinle, assistant to the chief chemist; and Esler, at one time chief clerk.' Although none of these employees has the power to hire and dis- charge, the three foremen, Adams, Dinsmore, and Parry may recom- mend dismissals. Shaffer, although ordinarily working as a laborer under the jurisdiction of Dinsmore, is from time to time in charge of a night crew which. fills oil drums when an emergency arises making necessary the loading of a lighter during the night. The duties of Heinle, the president of the Association, are .fully set- forth in Section III B above. Although Heinle is not noted on the re- spondent's pay roll as a supervisory employee, we find his. relation to the laboratory testers to be supervisory in character. We shall exclude from the unit Adams, Dinsmore, Shaffer, Parry, and Heinle. Although Esler had been at one time chief clerk in charge of the Curtis Bay clerical staff, he has not served in that capacity since January 1938. We shall include him in the unit. Local 411 desires the exclusion from the unit of the watchmen, engineers, and firemen on the ground that they are at all times needed to insure the safety of the plant. We shall therefore exclude them from the, unit. We find that the clerical, production, and maintenance employees of the respondent at its Curtis Bay Plant exclusive of watchmen, engi- neers, firemen, and the following supervisory employees : Harry E.. Ward, Jr., J. M. Klein, I. T. Adams, J. A. Dinsmore, I. Parry, W. W.. Shaffer, .and F. J. Heinle constitute a unit appropriate for the pur- AMERICAN OIL COMPANY, INCORPORATED 1005, pose of collective bargaining and that said unit will insure to em- ployees of the respondent the full benefit of their right to self- organization and to collective bargaining and otherwise effectuate the policies of the Act. lx. THE DETERMINATION OF REPRESENTATIVES Local 411 petitions the Board to certify it as the representative of the employees of the respondent at the Curtis Bay Plant on the- basis of a list of its members as of August 17, 1937, compiled from. its membership cards and submitted in evidence. A comparison of' said list with the pay roll of the respondent for the period from August 16 to 31, 1937, discloses that Local 411 claimed as members,. or potential members, all the 86 employees of the respondent eligible for inclusion in the bargaining unit which we have found to be appropriate. However, the seasonal lay-off of employees and an undisclosed num- ber of changes in pay roll occurring between August 1937 and the date of the hearing, has made it impossible to determine how many of the respondent's employees now desire Local 411 to represent them in collective bargaining. We find that the question which has arisen concerning the repre- sentation of employees of the respondent can best be resolved by- means of an election by secret ballot. Since we have found that the. respondent interfered with the formation and administration of the. Association and will order that the respondent refuse to recognize it, the name of the Association will not be placed upon the ballot. We shall not, however, at this time fix the date for the holding- of the election since we are of the opinion that the election should not be held until sufficient time has elapsed to permit a free choice. of representatives unaffected by the respondent's unfair practices. We shall, at the time we specify the date on which the election is to- be held, also specify the date on the basis of which eligibility to vote in the election shall be determined. 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, Oil Workers International Union Local No. 411, and American Oil Company Curtis Bay Em- ployees Association are labor organizations within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and admin- istration of American Oil Company Curtis Bay Employees Associ- 1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD :ation and contributing support thereto, the respondent has engaged in and is engaging in unfair labor practices within the meaning of `Section 8 (2) of the Act.. :3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by 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. 4. The aforesaid unfair labor practices are unfair labor practices :affecting commerce within the meaning of Section 2 (6) and` (7) of ,the Act. 5. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act. 6. A question affecting commerce has arisen concerning the repre- sentation of employees of American Oil Company at its Curtis Bay Plant, Baltimore, Maryland, within the meaning of Section 9 (c) :and Section 2 (6) and (7) of the Act. 7. The, clerical, production, and maintenance employees of the respondent at its Curtis Bay Plant, excluding watchmen, engineers, -firemen, and the following supervisory employees : Harry E. Ward, .Jr., J. M. Klein, I. T. Adams, J. A. Dinsmore, I. Parry,` W. W. Shaffer, and F. J. Heinle constitute a unit appropriate for the pur- poses of collective bargaining, within the meaning of Section 9 (b) 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 respondent, American Oil Company, Inc., Baltimore, Maryland, and -its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) In any manner dominating or interfering with the administra- tion of American Oil Company Curtis Bay Employees Association, -or with the formation or administration of any other labor organiza- tion of its employees, and from contributing support to American Oil Company Curtis Bay Employees Association or to any other labor organization of its employees; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, .join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual .aid or protection, as guaranteed in Section 7 of the Act. AMERICAN OIL COMPANY, INCORPORATED 1007 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Refuse to recognize American Oil Company Curtis Bay Em- ployees Association as the representative of its employees for the purpose of dealing with it in respect to grievances, labor disputes, wages, rates of pay, hours of employment, and other conditions of employment; (b) Post immediately in conspicuous places throughout its plant and, maintain for a period of at least sixty (60) consecutive days, notices stating: (1) that the respondent will cease and desist in the manner set forth in 1 (a) and (b) and that it will take the affirmative action set forth in 2 (a) of this Order; (c) Notify the Regional Director for the Fifth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the C0111plaint be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in and ° is 'engaging in unfair labor practices within the meaning of Section 8 (3) of the National Labor Relations 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 2, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purpose of collective bar- gaining with Americaal Oil Company, Inc., Baltimore, Maryland, an election by secret ballot shall be conducted within such time as the Board shall hereafter direct, under the 'direction and super- vision of the Regional Director for the Fifth 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 clerical, production, and maintenance employees in the Curtis Bay Plant of American Oil Company employed by said company during a pay-roll period which we shall in the future specify, excluding watchmen, engineers, and firemen, and the following supervisory em- ployees : Harry E. Ward, Jr., J. M. Klein, I. T. Adams, J. A. Dins- more, I. Parry, W. W. Shaffer, and F. J. Heinle, to determine whether or not they desire to be represented by Oil Workers International Union, Local No. 411, for the purposes of collective bargaining. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision, Order, and Direction of Election.