The Texas Co.

In the Matter of THE TEXAS COMPANY and OIL WORKERS INTERNA- TIONAL UNION, LOCALS Nos. 367 AND 228 Cases Nos. C-850 and C-1018.-Decided November 17, 1939 Gasoline and Fuel-Oil Production: Asphalt Production and Asphalt Roofing Fabrication Industry - Interference, Restraint , and Coercion: speeches by executives to employees at mass meeting disparaging outside union, and encouraging employees to bargain under representation plan or individually ; supervisors' questioning of employees as to latters ' union affiliations, and expressing opinion as to futility of joining outside union-Company-Dominated Unions: respondent's formulation of employee representation plan adopted in 1933 under its domination and support ; continuation of domination and inter- ference with administration and of support after July 5, 1935, until immediately after April;' 12, 1937, when plan became defunct, but ordered to cease and desist; succeeded at one plant, under respondent's impetus, by inside union enjoying favor and support of respondent and using latter's premises, time, and facilities , hence ordered disestablished ; replaced at other plant by inde- pendent inside union which received sole recognition and bargaining rights by arm's-length dealing with respondent, hence complaint dismissed as to latter independent union. Mr. Warren Woods, for the Board. 111r. Oscar John Dorwin, of New York City, and 111r. James H. Pipkin, of Houston, Tex., for the respondent. Gammage, Gammage cf Bauer, by Mr. Charles D. Bauer, of Hous- ton, Tex., for the Federation. . Mandell & Combs, by 111r. W. A. Combs and Mr. Herman Wright, of Houston, Tex., for Local No. 367 and Local No. 228. Mr. Sidney Sugerman, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On June 24, 1937, Oil Workers International Union, Local No. 367, herein called Local No. 367, duly filed a charge with the Regional Director for the Sixteenth Region (Fort Worth, Texas) that The Texas Company, Houston (Galena Park), Texas, herein called the 17 N. L. R. B., No. 73. 843 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent, had engaged in and was engaging in unfair labor prac- tices affecting commerce, within the meaning of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On July 27, 1937, Oil Workers International Union, Local No. 228, herein called Local No. 228, duly filed a charge with the Regional Director that the respondent had engaged in and was engaging in such unfair labor practices at Port Neches, Texas.' On January 20, 1938, Local No. 367 duly filed with the Regional Director a petition alleging that a question affecting commerce had arisen concerning the representation of the respondent's employees at its Galena Park refinery, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Act. On April 15, 1938, 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 matters set forth in said petition and authorized the Regional Director 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- Series 1, as amended, further ordered that all three cases be con- solidated for purposes of hearing. On April 22, 1938, Local No. 1367 and Local No. 228 duly filed amended charges of unfair, labor practices. Upon the amended charges, the Board, on May 4, 1938, by the Regional Director, issued its complaint alleging that the respondent had engaged in and was en- gaging in unfair labor practices affecting commerce, within the mean- ing of Section 8 (1) and (2) and Section 2 (6) and (7) of the Act. The complaint, together with a notice of hearing thereon and on the petition, was duly served upon the respondent, upon Local No. 367, and upon Local No. 228. In respect to the unfair labor practices, the complaint alleges in substance (1) that the respondent dominated and interfered with the formation and administration of Employe Representation Plan, a labor organization, herein called the Plan; (2) that the respondent at its Galena Park refinery dominated and interfered with the forma- tion and administration of The Houston Works Employees Federa- tion of The Texas Company, herein called the Federation, as an outgrowth of said Plan; (3) that the respondent at its Port Neches Works dominated and interfered with the formation and administra- I original charge designated the respondent "The Texas Company, Port Neches Works" ; the amended charge and the order of consolidation , "The Texas Company, Port Neches, Texas" ; the complaint. bearing a single composite caption, designates the re- spondent "The Texas Company," its correct name. THE TEXAS COMPANY 845 tion of The Employes Brotherhood of The Texas Company, herein called the Brotherhood, similarly as an outgrowth of said Plan; (4) and that thereby, and by various and sundry other means, the re- spondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of'the Act. The respondent's answer denies all the material allegations of the complaint in respect to the unfair labor practices, except as it admits and explains certain of the respondent's acts, and affirmatively alleges the respondent's friendly, cooperative attitude toward labor, and more particularly toward the labor organizations here involved, and that the Federation and the Brotherhood were spontaneous self- organizations of the employees at the respective plants. On February 8, 1938, the Regional Director made an order grant- ing a motion of the International Brotherhood of Boilermakers, Iron Shipbuilders, Welders and Helpers of America, herein called the Boilermakers, for leave to intervene in the representation case, notice of hearing thereafter being duly served on the Boilermakers. At the hearing, Local Union No. 716, of the International Brother- hood of Electrical Workers, herein called the Electricians, was granted leave to intervene in the representation case; the Federation too intervened therein, demanding certification or an election, as well as in the complaint case involving the Galena Park refinery. On May 13, 1938, the Regional Director made an order denying the respondent's motion for a continuance of the hearing, which was thereafter conducted at Houston, Texas, May 16 to 24, 1938, and at Beaumont, Texas, May 26 to 28, 1938, before Gustaf B. Erickson, the Trial Examiner duly designated by the Board. On May 13, 1938, the respondent filed with the Regional Director a. motion for a bill of particulars, a ruling on which was reserved for the Trial Examiner. At the opening of the hearing the Trial Examiner denied the motion. At the same time, the Trial Examiner denied the motions of the Federation (1) to dismiss the complaint in so far as it concerns the respondent's Galena Park refinery and the Federation; (2) for a bill of particulars; and (3) for a continuance of the hearing. The Board and the respondent, represented by counsel, partic- ipated in the entire consolidated hearing; the Federation and Local No. 367, so represented, participated in that part of the hearing which dealt with the representation and complaint cases concerning the Galena Park refinery ; the Electricians, so represented, partic- ipated in so much of the hearing as dealt with the representation case ; Local No. 228, so represented, participated in so much of the hearing as dealt with the complaint case, concerning the Port Neches 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Works; the Boilermakers failed to appear. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evi- dence bearing on the issues was afforded; all parties to the extent of their participation. At the hearing Spencer, president of the Brotherhood; testified that it did not care to participate therein, and he declined to make a; statement on its behalf. At the hearing the respondent moved to dismiss the complaint with respect to its Galena Park refinery. The Trial Examiner, having re- served a ruling thereon, denied the motion in his Intermediate Report. At the conclusion of the hearing the Trial Examiner granted the Board's motion to amend the pleadings as to dates, names, and places to conform with the proof thereof. During the course of the hearing the Trial Examiner made a number of rulings on other motions and on objections to the admission of evidence. With respect to the complaint cases, the Board has reviewed all the rulings of the Trial Examiner, as well as the afore-mentioned orders of the Regional Director, and finds that, with one exception hereinafter noted, no prejudicial errors were committed. The rulings and orders respecting the complaint cases, with that exception, are hereby affirmed. On July 29, 1938, the Trial Examiner filed his Intermediate Report in the case involving the Galena Park refinery, finding, among other things, that the respondent had there engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the Act; and recommending, among other things, that the respondent cease and desist from its unfair labor prac- tices and withdraw recognition from and disestablish the Federation at the Galena Park refinery. On August 29 and 30, 1938, respectively, the Federation and the .respondent filed separate sets of exceptions variously directed to the orders of the Board and the Regional Director, to the rulings of the Trial Examiner, and to the latter's findings and recommendations in- corporated in that Intermediate Report, as well as to his failure to make certain other findings; and therein renewed their motions to dismiss the complaint with respect to the Galena Park refinery. Those motions are disposed of by the Decision and Order below. On September 14, 1938, the Trial Examiner filed his Intermediate Report in the case involving the Port Neches Works, finding, among other things, that the respondent had there engaged in and was engag- ing in unfair labor practices within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the Act; and recommending, among other things, that the respondent cease and desist from its unfair labor practices and withdraw recognition from and disestablish the Brother- hood at the Port Neches Works. THE TEXAS COMPANY 847 Thereafter, on October 28,'1938, at New York City, pursuant to stipulation between the Board and the respondent, and at the latter's request, the deposition of Willis George Fox, a witness on behalf of the respondent in the Port Neches Works case, was taken at a hearing before William Seagle, a Trial Examiner duly designated by the Board for that restricted purpose. The Board and the respondent, both represented by counsel, participated in that hearing with full opportu- nity to examine and cross-examine the witness. During the course of that hearing Trial Examiner Seagle made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of Trial Examiner Seagle and finds that no preju- dicial errors were committed. The rulings are hereby affirmed. The respondent, by its stipulation, waived objection to the preparation and filing of the original Trial Examiner's Intermediate Report without consideration of the deposition of Willis George Fox, upon the under- standing that the latter would be made part of the record and consid- ered by the Board in its review of the findings, an understanding which the Board hereby confirms. On November 15, 1938, the respondent filed a separate set of excep- tions to the Intermediate Report in the Port Neches Works case, directed to the orders of the Board and the Regional Director, to the rulings of the Trial Examiner who conducted the consolidated hearing, and to the latter's findings and recommendations, as well as to his failure to make certain other findings; and therein moved to dismiss the complaint with respect to the Port Neches Works, a motion which is hereby denied. Pursuant to notices, oral argument in each case was had on March 21, 1939, before the Board at Washington, D. C. Although all parties were afforded the opportunity, only the respondent, Local No. 367, and Local No. 228, each represented by counsel, participated in the argu- ment, which those parties restricted to the complaint cases. In addi- tion, the respondent filed separate briefs in support of its exceptions to the Intermediate Reports; Local No. 367 and Local No. 228 filed a joint brief in support of the findings and recommendations therein; and Local No. 367 filed a separate brief in the representation case. The Board has considered the exceptions and briefs filed and the arguments presented. In so far as the exceptions are inconsistent with the findings, conclusions, and order set forth below, the Board finds them to be without merit. Pursuant to Article II, Section 36 (d), and Article III, Section 10 (c) (4), of National Labor Relations Board Rules and Regulations- Series 2, the Board has this clay made an order severing the repre- sentation case from the complaint cases. 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the complaint cases, including the deposi- tion of Willis George Fox, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Texas Company is a Delaware corporation having its prin- cipal offices in New York City and Houston, Texas. It is the prin- cipal subsidiary, wholly owned, of The Texas Corporation, through which it is affiliated with some 42 other corporations, all constituting an integrated, ,world-wide organization for the production, transpor- tation, refining, and marketing of crude oil and the products thereof, and for incidental businesses. The entire organization operates almost 8,000 wells in the United States, with a gross production of nearly 50,000,000 barrels of crude oil annually. Its net domestic production of crude oil, plus purchases thereof from and less sales to others, make available to the organiza- tion for refining purposes approximately 75,000,000 barrels a year. Its own common carrier pipe lines, almost 7,000 miles in length, deliver approximately 80,000,000 barrels of crude oil annually to refineries of subsidiaries within the system and to other points. Besides, the system has a substantial amount of its oil and gasoline transported through pipe lines of other companies. Marine trans- portation of the organization's products is handled by 32 steam and motor vessels and 239 small craft, operating in 31 deep-water ter- minals in the United States. It leases 5,821 tank cars and owns 2,950 trucks and automobiles for surface transportation by land. The daily crude oil capacity of the 23 refineries of domestic sub- sidiaries is almost 300,000 barrels. The refined products, mainly gasoline oils, and asphalt, are marketed in the United States through 2,100 bulk stations and 43,000 retail outlets, as well as directly from refineries and terminals. About 52,000,000 barrels of gasoline and oils, 280,000 tons of asphalt, and almost 50,000,000 pounds of grease are sold domestically each year. Marketing abroad of nearly 14,- 000,000 barrels of gasoline and oils, 75,000 tons of asphalt, and 18,- 000,000 pounds of grease annually, is conducted through 22 deep- water terminals, 73 bulk stations, and 271 retail service stations, all on foreign soil. The organization has only one refinery abroad, but subsidiaries spreading over every continent are engaged chiefly in marketing the system's exported domestic production. Practically all the production activities of the system east of the' Rocky Mountains and a major portion of its marine transpor- tation are carried on by the respondent subsidiary corporation. The THE TEXAS COMPANY 849 latter markets petroleum products in nearly all States east of the Rocky Mountains. Its gross receipts in 1937 were in excess of $280,000,000. In that period 86.191 per cent of its business was con- ducted in interstate commerce. Galena Park refinery This refinery has a capacity for handling 20,000 barrels of crude oil daily. The crude oil moves to the refinery from producing wells situated in the States of Texas and New Mexico, through pipe lines operating as a common carrier under Interstate Commerce Commis- sion regulation. The two main finished products of this refinery are gasoline and fuel oils. Approximately 25 per cent of the crude oil is devoted to the production of gasoline and an equal amount to fuel oils and byproducts, the remaining 50 per cent of unfinished crude distillates being pumped via pipe line to the respondent's refinery at Port Arthur, Texas, for further treatment. Of the refined products ap- proximately 75 per cent are shipped by sea-going tankers destined for points outside the State of Texas. The plant is located on the Houston Ship Channel, a deep-sea outlet to the Gulf of Mexico. The rest of the finished products are transported chiefly by tank cars loaded at the plant's spur railroad tracks. This refinery has about 200 employees engaged in production, maintenance, office, and laboratory work. Port Neches Works This refinery has a daily crude-oil capacity of 25,000 barrels. Most of the crude oil is obtained from the States of Texas and Louisiana, but substantial quantities are imported from Mexico by tanker and barge. The principal finished products are asphalt and asphalt' roofing, as well as steel barrels, wood barrels, and drums used as containers therefor. Besides the crude oil, the principal raw materials utilized are felt, sheet steel, wood staves, slate, paper, and nails. All these materials are procured from sources outside the State of Texas. The plant is located on the Neches River, a deep-sea channel. Spur railroad tracks cross the property of the refinery. A major portion of the.plant's finished products is transported to points outside the State of Texas by tanker and freighter to sea and by tankcar and boxcar on rails. The unused portion of the crude oil handled, after the primary distillation process is complete, is pumped to the Port Arthur refinery for further processing. In finished form, a sub- stantial percentage of all crude-oil distillates pumped to the Port 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Arthur refinery eventually reaches a destination outside the State of Texas. This refinery has more than 600 employees in all departments. H. THE ORGANIZATIONS INVOLVED Oil Workers International Union,' Local No. 367, and Local No. 228 are labor organizations affiliated with the Congress of Industrial Organizations, herein called the C. I. O. They admit to membership all persons working in the production, transportation, refining, and marketing of natural gas and petroleum products and in the allied industries. Local No. 367 confines its jurisdiction to employees of the respondent and one other company at Houston, Texas; Local No. 228, to such employees at Port Neches, Texas. The Houston Works Employees Federation of The Texas Company is an unaffiliated labor organization admitting to membership all employees of the respondent at its Galena Park refinery, except those employed in an executive or administrative capacity and department foremen. The Employes Brotherhood of The Texas Company is an unaffili- ated labor organization admitting to membership all employees of the respondent at its Port Neches Works, except those employed in an administrative capacity and department foremen and subforemen. Employe Representation Plan of The Texas Company was an un- affiliated labor organization admitting to membership "any individual employed by The Texas Company not identified with the Manage- ment." Each of the respondent's plants operated under the Plan autonomously in form through a local council. III. THE UNFAIR LABOR PRACTICES A. Domination of the Plan In July 1933 3 the respondent formulated the Plan as a way by which "industrial disputes and differences between Management and Employees" might be eliminated through "equal representation in the consideration of all questions of policy relating to working conditions,. I From its formation in 1933 until 1937 the name of the Union was International Asso- ciation of Oil Field, Gas Well and Refinery Workers of America . Under that name it had been affiliated until 1936 with the American Federation of Labor. After the change in affiliation Local No. 367 was separately chartered to take over a portion of the territorial jurisdiction previously held by Local No. 227 , which had extended to employees at the respondent's Galena Park refinery. Local No. 228 remained intact with its original desig- nation and jurisdiction. ' The events herein recounted which occurred prior to the effective date of the Act, July 5, 1935, do not of themselves make the basis of any finding or conclusion as to unfair labor practices, but are mentioned for the sake of continuity and their bearing on events there- after. See National Labor Relations Board v. Pennsylvania Greyhound Lines , Inc., 303 U. S. 261. THE TEXAS COMPANY. 851 health, safety, hours of labor, wages, recreation, education, and other similar matters of mutual interest." At that time the Plan was pub- lished at the Galena Park refinery and the Port Neches Works. Em- ployees were invited to elect representatives to meet in council with an equal number of the respondent's representatives to adopt the Plan. Elections and meetings were held at those plants and the Plan was put into effect as proposed by the respondent. Thereafter to 1937 the Plan continued to function at both places with only such slight changes as from time to time the respondent suggested by way of amendments. No membership meetings were held and no dues were collected, nor did the Plan make provision for either. In substance, the Plan as amended prescribed the qualifications of employee representatives, the manner of conducting their nomination and election, their term of office, and the grounds for their disqualifi- cation and recall. A council, consisting of the elected representatives of the employees and an equal number of representatives designated by the respondent, was "empowered to determine finally, by majority vote, ... all questions relating to maximum hours of labor, mini- mum rates of pay, and other conditions of employment and to make agreements in respect thereto." The offices of the chairman and secretary of the council were to be alternated after each half term between a representative of the employees and a management repre- sentative. Absentee voting at council meetings was permitted to management representatives as a means of equalizing the two groups' voting strength. While that was not permitted to employee repre- sentatives, the Plan provided that the respondent should never have greater attendance at meetings than the employees. Lastly, only by favorable bloc vote could the Plan be amended or terminated by the council, but to the respondent's board of directors was reserved the power to terminate the Plan by its own action. The Plan was nurtured in an atmosphere of employer hostility to outside unions with national affiliation which were then trying to establish themselves in the oil industry, with only brief success in the organization of these two plants. Although the respondent met with their representatives, it made plain that they would be treated with only on behalf of their membership and that no contract, closed shop, or check-off could be hoped for. In 1934 Landry, who was then superintendent at Galena Park, sought to have one of the employees who was a union member reveal a list of those who had signed a petition and complaint to the Petroleum Labor Policy Board.4 In 1935 Landry stated to the same employee that if the plant were 4 The Petroleum Labor Policy Board functioned under the Secretary of the Interior to administer the labor provisions of the Code of Fair Competition for the Petroleum Industry adopted under the National Industrial Recovery Act, 48 Stat. 195, as amended from time to time. 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unionized, the respondent would shut it down and transfer its opera- tions to the Port Arthur refinery. Testifying that he had said and done nothing to discourage union organization, Landry nevertheless admitted having talked with that employee about the "strained feel- ing" and "dissatisfaction" among the workers. "Looking for infor- mation as to the attitude of our employees and their feelings," in Landry's own words, he had stated in 1934 to another employee, according to the latter's testimony, that "he didn't know why they wanted to belong to the union . . . Union organization had never helped anyone." The day after executives from the respondent's main office addressed the employees in 1934, expressing their prefer- ence for the Plan, Landry called in still another employee, known to be an active union member, to answer an alleged charge by an unidentified person that the accused had urged union membership upon employees in order to hold their jobs. Landry said, "That is coercion in the worst-way and I will report you to the Washington authorities," but refused him the right of confrontation with his accuser. At Port Neches in 1934 Dengler, the superintendent, admittedly stood in the employment agent's office near the punch clock and, with a list before him on which he marked the answers, asked each employee filing past whether or not he was a member of the outside union. In actual operation the Plan at both refineries served as a forum for the discussion of grievances and social affairs and as a sounding board for the respondent's labor policies. Such material successes as the employees gained were really benefactions announced by the respondent and accepted by the councils without serious discussion. The express power of the Plan councils "to determine finally, by majority vote, . . . all questions relating to maximum hours of labor, minimum rates of pay, and other conditions of employment and to make agreements in respect thereto" was neglected in practice. When, in July 1936, working rules respecting such matters came under discussion before the council at Galena Park, Landry made it plain that in the final analysis the council's only function and au- thority were to make recommendations, but not to make changes affecting company policy. Dengler at Port Neches had already so informed the council in a discussion of wage-rate adjustments a year earlier. Indeed at Galena Park the working rules themselves, being sub- stantially the product of a recent collective bargaining conference be- tween the respondent and the Oil Workers International Union act- ing on behalf of several of the former's other plants, were said by Landry to be a mere token "of what the company wants to give the THE TEXAS COMPANY 853 men" and not a subject of contract. Landry urged the council to confine itself to specific grievances "and not try to tear down [the] set-up on working rules." He was satisfied, he said, that the "rules were given careful consideration ind in each case the men them- selves [indicating the respondent's' legal department] who prepared working rules had the welfare of the men in mind." In any event, the respondent had long insisted it would never bind itself legally to any policy measure by contract with a labor organization. The respondent's "desire to please employees," as Landry put it, was to be its only policy guide. The passage of the Act in 1935 gave the respondent pause only to the extent of issuing instructions to superintendents that assistance in the election of employee representatives should thereafter be with- held. Otherwise the Plan remained unaffected as the object of the respondent's favor and support. To be sure, copies of the Act and analyses prepared by the respondent's legal department and the National Association of Manufacturers were distributed to superin- tendents, who in turn instructed foremen in what were the employees' newly guaranteed rights and, the employer's duties, and in what would be violations of the one and adherence to the other, but at Galena Park, Superintendent Darling rejected the request of Local No. 367 to post portions of the Act or at least a notice of the re- spondent's impartiality. At both plants elections of employee representatives had from the first been conducted on the respondent's premises and time and with ballots and ballot boxes provided by it. Employees were encouraged by foremen to vote.for representatives; solicitation and electioneering were permitted on the job; and employees were offered the respond- ent's facilities and cooperation. At Port Neches foremen went so far in their encouragement as to visit the homes of employees after business hours to round up delinquent voters. Council meetings were conducted at such places as the superintendent's office, the Texaco Club room, and the respondent's houseboat, on which luncheons were provided to all representatives by the ' respondent. Minutes were taken by a stenographer on company time and were kept in the re- spondent's custody. In its origin, development, and functioning the Plan at Both Galena Park and 'Port Neches was an instrument conceived, fashioned, and utilized by the respondent to achieve and maintain a relationship with its employees in which the respondent was dominant. To that end the respondent imposed upon the employees a creature of its own will and determination, and not of their free choice. The device by which the respondent controlled the Plan is simple and familiar : veto power invested in the management representatives, backed by 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respondent's residual power totally to destroy the Plan of its creation. While so dominating the Plan the respondent further insured its control thereof by contributing material support and by lending the full force of its approval, encouragement, sponsorship, and favor- itism to it. The continuity of the respondent 's domination and sup- port of the Plan was unbroken through the period of the Plan's open existence down to 1937. Instructions from its executive offices to the supervisory forces at the plants to withdraw assistance to the Plan went unheeded. The Plan council at Galena Park continued its meetings until June 8, 1937; at Port Neches , until April 30, 1937. Darling, at Galena Park, wrote to the Federation on July 28 , 1937, agreeing, pursuant to the latter's request, that "bargaining through the Employes Rep- resentation Plan be discontinued at Houston Works." At the last meeting of the Port Neches Plan council , Dengler announced the withdrawal of management from future representation thereon. At neither plant was the Plan formally dissolved thereafter, although it is evidently defunct at both places. We find that the respondent dominated and interfered with the formation and administration of the Plan at both its Galena Park refinery and its Port Neches Works , and contributed financial and other support to it prior to July 5, 1935. We further find that the respondent thereafter continued to dominate and interfere with the administration of the Plan at both places and to contribute such support to it; and that the respondent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. As it appears from the record that the Plan at both plants has ceased to function, we shall withhold the usual order directing the respondent to disestablish the Plan there as a representative of its employees for the purposes of collective bargaining . Nevertheless, in conformity with our practice in the past under circumstances of the kind here shown, we will issue such order as we deem necessary to bar a resumption or repetition of the activities which constituted the unfair labor practices and thus to effectuate the policies of the Act.., B. The Federation Early in 1937, after 2 years of union inactivity at the Galena Park plant, Local No. 367 began its organizational efforts there. The respondent gathered its plant superintendents together on April 28, See Consolidated Edison Company of New York, Inc. v. National Labor Relations Board, 305 U. S. 197: Matter of Wisconsin Telephone Company and Telephone Operators Union, 12 N. L. R. B. 375. THE TEXAS COMPANY 855 1937, for a talk by its counsel on future operations of the Plan, in the light of the recent Supreme Court decisions upholding the con- stitutionality of the Act. They were again instructed in respect to the respondent's obligations under the Act; they were told of an opinion asserted to have been expressed by the Regional Director that employee representation plans were legal; 6 and each was author- ized to act as he thought best with respect to the Plan at his plant. The council held only two meetings thereafter, on May 11 and June 8. Darling approached the May 11 meeting with a tentative suggestion that the number of the representatives be increased and that management representatives be eliminated. Nothing was done. O'Donnelly, an employee representative, stated that steps were under way toward the formation of another labor organization of the em- ployees. Except for the curious circumstance that O'Donnelly, who had by then guided the newly formed Federation through several meetings, participated and gave unstinted praise to the council as a vehicle of employee self-organization, the final, June 8, meeting of the council was without material incident. O'Donnelly testified that he had conceived the idea of the Federa- tion while believing the Plan a company-dominated union; that the Su- preme Court decisions provided him with the stimulus to organize an independent union the better to handle grievances, although he still had confidence in the Plan and continued his activity on its Council. He was certain of one fact : he did not like the C. I. O. as exemplified by its leaders at the plant. He had read in the newspapers how em- ployees at another oil refinery nearby had abandoned a similar plan and established themselves independently, and he intended to follow the pattern of their new organization. On May 9, 1937, he convened a small group at his home to lay plans. They consisted of Carroll, Lawton, Burt, and Seale, besides himself. O'Donnelly was a chemist in the respondent's laboratory, in no way shown to be identified with management. Carroll, who had served as an employee representative on the council from July 1934 to December 1936 and had held the office of chairman several times, was storekeeper at the refinery until his transfer in October 1936 to the position of clerk in the respondent's Houston office. Lawton's position with the respondent does not appear in the record. He was paid on an hourly basis for whatever he did. Burt was the tool keeper, and on occasion served as relief yard foreman. Seale was an office stenographer who served as secretary to Darling and took the minutes of meetings of the Plan council and of the respondent with Local No. 367 and, later, with the Federation. 6 There is no direct evidence in the record of what opinion , if any, the Regional Director did express. 247384-40-vol. 17-55 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 11 , 1937, the day of the first organization meeting of the Federation , O'Domielly specifically invited one , Crepeau, and issued a general call to others to attend that evening at the Texaco Club. Fifty-eight employees were present, including those already named au, head tester and foreman in the laboratory , and Stellbauer, a and N, clerk in the personnel manager's office. Crepeau was designated tem- porary chairman of the meeting and was elected temporary president of the Federation over O'Donnelly and Nau. One Lancon , evidently a production worker, was elected temporary vice president over Stell- bauer and Burt. Seale was elected temporary secretary over Millican, an investment clerk in the cost department. Crepeau was a chemist subordinate to a department head, and had no power to hire, discharge, or transfer, personnel . As a self-styled "trouble shooter" or "trouble chaser," he had been assigned , since enter- ing the respondent's employ in 1929, to experimental laboratory and plant operations. His work took him to any point in the plant where the production processes required checking of equipment, oil tests, or other coordination . Only to that extent were his roving functions supervisory. On the occasion of his department head's periodic vaca- tion Crepeau acted as chief if he were available . Once, in 1936, the respondent had him in its New York offices and several times he visited its Port Arthur refinery on matters of technique and equipment in production. In 1933 and part of 1934 Crepeau had been a member and vice president of International Association of Oil Field , Gas Well and Refinery Workers of America, Local No. 227,' and representative of the Galena Park refinery employees therein but had since relin- quished his membership . He declined to be nominated for a position on the Council and never participated actively or interested himself in the Plan's affairs . He regarded the Plan as a company-dominated union. His popularity among the employees was attested by his election to the presidency of their Federal Credit Union. On May 24 a meeting of the Federation was held to arrange for a secret ballot to be taken the next day to determine the Federation's strength among the employees for the purpose of representation. On May 25 the balloting was conducted at the gate on the State highway, as employees entered and left the respondent's premises. The expense of the proceedings was borne by the Federation. Upon the complaint of Local No . 367 that the respondent was contributing support to the Federation by permitting the latter the use of the Texaco Club Room, Darling denied the Federation further use of the room. Thereafter meetings were held at a public high school. where the Federation defrayed all expenses. 7 See footnote 2 above. THE TEXAS COMPANY 857 In the meantime, commencing May 12, 1937, Local No. 367 held a series of meetings with Darling. Its full-time secretary and spokesman was Crossland, who had never been in the respondent's -employ. Local No. 367 did not ask for recognition as exclusive bargaining representative of all the employees. It was accorded without discrimination such privileges as the use of a bulletin board in common with other employee groups and meetings with the super- intendent to discuss grievances. Crossland testified that he had "no -complaint about The Texas Company local management at Houston Works attempting to evade or delay any negotiations." On June 14, 1937, Crepeau wrote to Darling demanding recogni- tion of the Federation as exclusive bargaining representative, by virtue of its selection by a majority of the employees at Galena Park, and discontinuance of bargaining through the Plan, which he termed a "Company favored organization." Attached was a type- written list of the Federation's members, numbering 130. In a per- sonal interview Darling told Crepeau that exclusive recognition would depend upon satisfactory proof of majority. The respondent requested Oil Workers International Union to consent to an election with the latter and the Federation on the ballot,' as the Union had in the past at the respondent's other plants where independent labor organizations existed, but this time the Union refused. On June 24 Local No. 367 filed the charge and thereafter, until December 31, .1937, refrained from further meetings with the respondent. . On July 28 Darling formally replied to Crepeau's demands of June 14 for recognition of the Federation as exclusive representa- tive and for discontinuance of bargaining through the Plan. Darling reviewed the course of recent events and pledged the respondent not to disavow the Federation. Stating the respondent's belief that a present election under the circumstances would be undesirable, Darling Wrote that it would bargain collectively with the Federation, and that it would cease its dealings with the Plan. Through the summer of 1937, after engaging counsel for legal advice and assistance, the Federation met and discussed and carried forward plans for a permanent organization and the final adoption of a constitution. Provisions were read, criticized, and reframed time and again until, at special membership meetings held in the latter part of September, the constitution was agreed upon and adopted. The document provided for selective membership upon approved application; an initiation fee of $1.00 and regular monthly dues of 50 cents; additional assessment levies; regular monthly member- ship meetings; regular elections for fixed terms of office; recall of officers and representatives; strike calls; a referendum on contracts 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the management respecting rates of pay, wages, hours of em- ployment, or other conditions of employment; amendments by refer- endum and initiative of the membership. On October 18 Crepeau wrote Darling of the adoption of the constitution and that the election of permanent officers and repre- sentatives was required to be held within 30 days. He asked for an appointment to discuss arrangements for the conduct of the elec- tion, saying, "While the election of officers of the Employes Federa- tion is of no interest to you, we feel that the proper division of the Unit for the purpose of selecting representatives is so momentous a task, that it requires the cooperation of all parties concerned." On October 29 Crepeau followed this up with another letter to Darling accompanying an elaborate proposed agreement between the respondent and the Federation, as exclusive representative of all the former's non-administrative employees, respecting rates of pay, wages, hours, working conditions, and other platters of mutual inter- est. The instrument, in, contractual form for signatures, was pre= sented "for consideration." A general 15-per cent wage and salary increase was simultaneously demanded to meet a cost of living rise- and to bring basic rates into line with those accepted by the re- spondent's competitors. On November 23 the Federation conducted its general election.. O'Donnelly was elected president. Crepeau, retaining his member= ship in the Federation, retired from office and other activity after the permanent organization was set. The ballots had been sent to, the members in the respondent's care through the United States Post Office, and were attached as mail to the respective time cards on the rack in the punch office. There is no evidence that the respondent otherwise aided or afforded the use of its facilities in the conduct of the election. The first general conference between the Federation and the re- spondent was held on November 30, 1937. The Federation tendered a typewritten list of its members, which it offered to verify from signed authorizations in its files. The respondent's counsel declined to enter into bargaining negotiations at that time, but stated that when that stage in their relations was reached adequate proof would be required. Upon the respondent's assertion that collective bar- gaining should be conducted but once a year, and that the working rules now in effect had been revised the previous spring, the Federa- tion's insistence upon immediate bargaining gave way, and the ques- tion was deferred until March or April 1938. However, the respond- ent consented to discuss wages at an earlier date, to correct differ- entials as to which grievances existed. Accordingly in January 1938, the Federation met with the respondent to discuss at length wage and other grievances of individuals, as a result of which prac- THE TEXAS COMPANY 859 tically the entire wage and salary structure was reviewed, culminating several months later in a general wage increase, approved by the Federation's membership on referendum. On March 14 and 15, 1938, the Federation and the respondent came together for their bargaining conference. The Federation formally demanded recognition as the exclusive representative of all the employees for the purposes of collective bargaining. Darling questioned the number of employees who had authorized the Federa- tion, excluding "office, technical and supervisory employees." The pay roll for the period February 15 to 28 was found to contain the names of 189 persons, excluding the categories mentioned. The Fed- eration presented witnessed authorizations signed by 103 such per- sons, and the authorizations were verified against endorsement signa- tures on pay checks. About 25 such authorizations of ineligibles, in addition, were rejected. Several illegible signatures were discarded. A majority in the unit having been established to the respondent's satisfaction, the Federation's formal demand for recognition was granted. The respondent refused to depart from its policy of not entering into a "dual signed contract," but bargained with the Federation to a resultant policy-stating set of working rules effective until April 1, 1939, subject first to ratification by the Federation's membership. A special membership meeting immediately thereafter gave its ap- proval, which was communicated to the respondent. The Trial Examiner's conclusion that the respondent had formed and sponsored the Federation and thereafter dominated and inter- fered with its administration is based on findings that Crepeau was identified with the management of the plant; that his fulminations against the C. I. O. and Local- No. 367 were, therefore, unfair labor practices of the respondent; that the Federation drew its in- spiration from the condemned Plan; that it was encouraged, favored, and supported by the respondent to the exclusion of Local No. 367, in much the same way as the Plan had been. We believe that the record lacks substance to support these find- ings. Crepeau's position and activities do not indicate that in pro- moting the Federation he was acting in the respondent's interest and on its behalf. Of the other individuals who participated in the formation of the Federation, only two, Seale and Burt, can in any way be identified with the management: Seale as secretary to the superintendent and Burt as a relief foreman. Seale's classification was that of an office stenographer. He did take Darling's work, but that was not his sole duty. In any view of his status, Seale's activity in the Federation, until his resignation as its secretary in October 1937, appears to have been confined to the monotony of a recording 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD secretary's. In describing Burt's duties as relief foreman, in which capacity he acted on rare occasions in his 19 years of service as tool keeper at the plant, Darling explained that Burt was no more than a "messenger boy" to take care of the wishes of stillmen on duty when the plant ran with skeleton forces, as during week ends. The record does not reveal that his activities were any broader than that. The only individual among the Federation's organizers and sub- sequent officers and, executive council members who had formerly served on the Plan council was. O'Donnelly, whose role has been fully described, and whose. position, similarly, is not such that his activities can be attributed to the respondent. The structure and administration of the Federation differs sub- stantially from those of the Plan. The few vestiges carried over were not such that employees might reasonably, on that premise alone, identify the two organizations as a direct line of descent. Such support as the respondent contributed to the Federation, as in the use of a bulletin board, facilities for the distribution of literature, and compensation to representatives for time spent in conference with the superintendent, was no different in kind or degree from that given or offered to Local No. 367. Denying to the latter the use of the Texaco Club Room, excepting those of its mem- bers who were employees, the respondent did discriminate in favor of the Federation, but corrected that fault in its policy as soon as objection was made. The respondent did not rush into collective bargaining with the Federation or into hasty recognition of it as exclusive representative of the employees for that purpose. Many months elapsed after the Federation's organization and after its demands before the respondent negotiated with it except on grievances. In the meantime, the re-. spondent displayed readiness at all times to meet and confer with Local No. 367 on all manner of grievances. Upon the entire record we find that the respondent had not domi. nated or interfered with the formation or administration of the Federation at its Galena Park refinery, or contributed financial or other support to it. We further find with respect to the formation and administration of the Federation that the respondent has not thereby interfered with, restrained, or coerced its employees at its Galena Park refinery in the exercise of the rights guaranteed in Section 7 of the Act. Accordingly, we shall dismiss the complaint in respect to those charges. C. Interference, restraint, and coercion at Port Neches Works In April 1937 the respondent proposed to discuss with the Plan council the annual revision of the working rules for Port Neches; THE TEXAS COMPANY 861 prior to such discussion with the Oil Workers International Union. Several days before the projected meeting Halpern, the respondent's manager of manufacturing; directed Dengler to assemble all the employees at the meeting. Dengler posted a notice at the plant inviting all employees to attend the meeting, with pay, at a hotel in Beaumont, Texas. More than 550 of the 643 employees at the plant attended the 2-day meeting on April 24 and 26, 1937. The physical placement of individuals and groups was significant. On an elevated platform sat Halpern, Anglin, and Dorwin, all from the respondent's executive offices in New York; Dengler, the super- intendent, and Bigler, the chairman of the Plan council and general foreman. of construction. Below them, at a table, were grouped all the members of the Plan council. Behind them were the rank and file of employees. The respondent's New York officials completely dominated the meeting. Such consideration as was accorded the revision of the working rules was initiated, in every instance, from the platform. At the suggestion of the officials, one provision after another was retained, modified, or superseded, for the most part without discus- sion. When on rare occasion an employee ventured to voice dis- agreement or to pose an unwelcome question he was quickly silenced. The Plan council's subservience assured the respondent of success in such revision of the working rules as it desired without resort to the elaborate and costly setting it provided. The transcript of the proceedings indicates that the respondent's primary purpose in call- ing the meeting and granting the employees a paid holiday was to subject them, on the pretext of collective bargaining, to propaganda bitterly hostile to the C. I. O. and the Oil Workers International Union. Halpern, the first to speak, flattered the employees as men of a type psychologically differentiated from the "foreign element" in other parts of the country. Dorwin then explained that Section 7 of the Act required no change in the policy of the respondent: "We just go along, doing the same thing we did before . . . perhaps there are some changes that may have to be made in the representation plan ... but there isn't anything fundamental . . . in the policies of The Texas Company, that.have been altered by this' law." He proceeded to advise his listeners that they could bargain individually. Many men, he said, "don't want to be represented by someone else. They want to handle their affairs for themselves. That is the situation, probably, with a great majority of the employees of The Texas Company." Discussing the proviso of Section 8 (3), Dorwin related that the Oil Workers International Union had demanded a closed-shop agree- 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment the previous year, but that the respondent refused the demand. Pointing out the implications which acceptance would have carried, he observed : "It would be discrimination . . . of the worst kind, to try to adopt a policy of that sort, that would surely result in every- body that had any ambition at all being forced to get into the union." Next, Dorw,in decried sit-down strikes. He concluded by guaran- teeing employees "their right not to join any organization they don't want to join," and to offer them protection against intimidation. Halpern followed by denouncing employee coercion and strikes which, by implication, he attributed to "outside" unions. Like Dorwin, he assured the employees that the respondent would not agree to a closed shop, as it meant to protect its employees in their right not to join a union. When the conference reached the discussion of promotions under the seniority rules in effect , Halpern took the opportunity again to attack the Oil Workers International Union and to put in a good word for existing employer-employee relations : "That goes to show how some of these rules come into effect and how truly you were repre- sented when these rules went into effect . . . we went to Chicago and we met with six union plants; and two plants were there by proxy: Port Neches and Casper . . . Hell, there wasn't a Port Neches man there. So you fellows got some swell representation, as far as I can see . . . That's why I say-talk about collective bargaining ! If any- body will tell me that is better bargaining than sitting here with 550 men .and letting them say what they want, I'll give up." At the hearing Halpern denied that he had intended to identify the C. I. O. or the Oil Workers International Union with the "turbu- lence," "sit-down strikes," or "coercion" to which he referred in his speeches; neither had he intended that his audience should. However, he testified as follows : Q. Well, as a man of considerable experience are you telling me that in the popular mind the words "sit-down strike" are not associated with the C. I. 0.? A. I tell you that in my own mind I knew from all the read- ing I had done that the C. I. O. were more definitely involved with the sit-down strike. However, those men down here don't read the newspapers I do and read the variety of newspapers I do. The action of the respondent's officials at the meeting of April 24 and 26, 1937, in encouraging the employees to continue "collective bargaining" under the Plan or to bargain individually, and in scorn- fully referring to the C. I. O. and Oil Workers International Union was, notwithstanding carefully interspersed acknowledgments of the THE TEXAS COMPANY 863 employees' rights under the Act, plainly calculated to disparage the C. I. O. and its said affiliated union and to discourage membership therein. We find that by such action on the part of its officials the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. At about the time of the Beaumont mass meeting in April 1937 Becker, a subforeman in the construction department, came to an employee named Davis during working hours with a list of employees whom Bigler, the foreman, had directed Becker to consult. Becker asked Davis whether he was in favor of the C. I. O. Davis said he was not in a position to answer, as it was a new thing to, which he had not given much consideration. Becker marked something on his list and departed. We do not believe Becker's testimony that he had held no such conversation with Davis, and that the list was merely one of employees to be laid off for a day so as to be available for Saturday work. He failed to testify to what he actually did say and do with the list, confining himself to a denial of any con- versation about the C. I. O. On June 12, 1937, Fox, the employment supervisor, called an employee named Blanchard into his office and asked him whether or not he was going to vote in plant elections conducted that day by the Btotherhood. As Blanchard believed he still had the status of a temporary employee, he reminded Fox that the latter, on hiring him, had told Blanchard not to sign anything since his tenure was uncertain. Fox then said, "If you want to stay on the right side you better go out there and vote and stay with the boys," indicating that Blanchard had lost his previous job with another oil company because of union activity. The balloting in the election was con- ducted in the punch office in front of Fox's doorway and, for part of the day, inside Fox's office, as will later appear in our findings respecting the formation and administration of the Brotherhood. Considering the presence of those circumstances affording Fox the opportunity to speak to Blanchard, Fox's lack of memory of any conversation with him on the day of election is not convincing. In September 1937 Bingaman, an employee, went in to see Bigler about a raise in wages. Bigler said he would see what he could do for him, if Bingaman procured the recommendation of his immediate foreman. The conversation veered to unions. Bigler asked whether Bingaman was a member of Local No. 228, to which the latter an- swered in the negative. Bigler said, according to Bingaman's testi- mony, "that lie didn't see why a fellow would want to, that they had never done any good and he was paying his $1.50 or $2.00 for something that didn't do him any good." At the hearing Bigler remembered a conversation about wages, but, nothing about unions. 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He failed to deny unequivocally that he had made the statement attributed to him, except as to the portion relating to the payment of dues, which he flatly denied. Weighing all the circumstances, and especially Bigler's leadership in the Plan affairs and his connection with the Davis incident discussed above, we believe the testimony of Bingaman. We find that by the foregoing statements and actions of its super- visory employees with respect to employees Davis, Blanchard, and Bingaman, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. D. Domination of the Brotherhood On April 28, 1937, 2 days after the Beaumont meeting with its employees, the respondent had its convention of superintendents to discuss future operations under the Plan, as related above in Section III B. On April 30 the Plan council at Port Neches met specially at the management's call. The minutes record the following business transacted: F. S. Dengler stated that he had previously suggested on sev- eral occasions that it might be. better if he were not on the Council. As a result of the recent Labor Meeting in Beammunt, he' became more firmly convinced of this fact since questions were brought up at the meeting which had not been mentioned through the Council. In fact, he felt it would be better if all- Management Representatives withdrew from the Council as he felt the Council could carry on better without management. In view of this conviction, all management representatives will be dropped from the Council. He explained that the Council was at liberty to increase its membership if it desired. Port Arthur Works has a Sub- Council of 45 members. It was further explained that this action was not necessary from a legal standpoint. . . . However, F. S. Dengler felt that the Council could do a better job if there were no manage- ment representatives on the Council. C. Kofahl mentioned that it would probably be necessary for the Council to reorganize. . . . At a time fixed by Bigler, Jr., and Kofahl in February 1937 but which Mabey could not fix either before or after the April 24-26 Beaumont meeting, Bigler, Jr., Mabey, Kofahl, and other employees THE TEXAS COMPANY 865 met at the home of a company engineer to form an independent organ- ization. Bigler, Jr., the son of the general construction foreman who was chairman of the Plan council, was a non-practicing lawyer working as a gauger in the.plant. Mabey, an employee of more than 20 years' service with the respondent, was in charge of all its trucks and cars. Kofahl, in the respondent's employ more.t.han 31 years, was until August 1, 1937, chief shipping clerk with 3 employees under him. He had served as an employee representative and for a term as chairman of the Plan council. Bigler, Jr., testified that he was designated temporary chairman of the new organization, and Mabey its temporary secretary. Subse- quent meetings were held every week or two, he testified, until their first open meeting at the Texaco Club early in April 1937, when between 75 and 100 employees attended. The name Employees In- dependent Federation was adopted. Mabey took no minutes of any of the meetings. After the final meeting of the Plan council on April 30, Kofahl, who had not attended any but the first meeting of the Bigler, Jr.;- Mabey group, decided with his fellow-employee representatives "to continue the Council under a slightly different set-up," to increase the number of representatives, and to change the name of their organiza- tion to Employes Brotherhood. This organization met several times during May, but minutes were not kept of these meetings either. Bigler, Jr., approached Kofahl with a proposal to merge their organizations so as to avoid the weaknesses of division. Kofahl re- fused, saying, "We think we got a better set-up than yours, and you go ahead." Sometime in May, however, Bigler, Jr., having won over several of the representatives in Kofahl's group to the idea of a con- solidation, a joint open meeting was held at the Texaco Club with 60 or 70 employees present. A joint council of 11 representatives was agreed upon: 6 appointed by Bigler, Jr., and the 5 taken over from the Kofahl group, all to serve temporarily until the election of per-' manent representatives on June 8 and 15 following. Bigler, Jr., and Mabey continued until then as chairman and secretary of the joint council. The meeting voted to retain the name Employes Brother- hood for the new organization. A constitution was adopted combin- ing features of those previously governing the two groups and of one obtained from an independent union at another oil company. Mabey had visited the latter union in the company of a subforeman in the respondent's employ. The constitution of the Brotherhood provides that each employee, other than supervisory, shall be eligible for membership. No appli- cation or approval is required. In practice, membership automati- cally attaches to the employee status. No provision is made for mem- 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bership meetings. The finances of the Brotherhood are to be raised as necessary by the council's assessment of each member for amounts not to exceed $1.00 a year in the aggregate, except that with the ap- proval of a majority of the membership an additional assessment may be made, in no event to exceed $5.00 a year. The Brotherhood, after a year's existence, still had no funds. In fact, it does not appear to have elected a treasurer at all. Such cash expense as it had was met by contributions dropped in a hat. The duty of making election arrangements was delegated to the council of 11, each of whom was authorized to designate 2 helpers to act as tellers and electors. Mabey copied the names of the employees at the punch office and furnished the list to the council. He went to the storehouse, asked the man in charge for the respondent's ballot boxes used in past elections under the Plan, and took them for use in the coming elections, the first a primary for nominations and the second a run-off. At the time of the elections there was circulated for employees' signatures eight copies of a petition stating in effect that because they were satisfied with the respondent's fairness and wanted to ex- press their loyalty to it, they thereby went on record as being opposed to the C. I. 0. and John L. Lewis. Bigler, Jr., testified that it was he who had caused the petition to be circulated and that its "main purpose was to find out who were for us and who were against us," even though the Brotherhood's name was nowhere mentioned on the petition. The elections were conducted on the respondent's premises. About 300 votes were cast. This was managed by setting up the ballot boxes in the punch office, and for part of the time in the office of the em- ployment supervisor, Fox, who saw, as Dengler did, what was going on. Yet neither of them did anything, they admitted, to prevent the Brotherhood's use of the respondent's time, premises, and facilities for the organization's private purposes. Within Fox's sight Myers, an election teller, stood at the ballot boxes holding in his hand all the time cards, which he had removed from the rack so that employees could not punch in or out of the plant without exposing themselves to solicitation for votes as they asked Myers for their time cards. Schram, a gang pusher, was asked for his vote as he entered the punch office. Later in the day Brock, a teller, came around with ballot box, ballots, and a list of employees to Schram's gang, while they were at work on the respondent's property, and openly solicited their votes. Ramke, Williams, and 'Dorsey, employees in the roofing department, were asked, along with others in their department, to vote on ballots which were distributed to them on the job by Graham, another teller, who also carried around with him a ballot box and. THE TEXAS COMPANY 867 a list of employees. All during that time the foreman of the depart- ment was present but said nothing. Other employees. had similar ,experiences during the conduct of the elections. . Although the tellers involved uniformly testified that they did all these things without seeking the permission' of the respondent, the latter's representatives ire :aware 'of their doings and failed to interfere. Of the 11 representatives elected by the Brotherhood on June 15, 3 had previously been employee representatives on the Plan council. The new council proceeded to elect Kofahl president and Wilkinson, a laboratory worker, as secretary. Kofahl served until early August, when he resigned to transfer to the respondent's Port Arthur Works. 'Spencer, a representative, was elected by the council to fill the vacancy. No general elections were held after June 1937. Membership meet- ings were reduced to an attendance of 8 or 10, sometimes as many as .25. Minutes were not kept of such meetings or of council meetings. Bigler, Jr., and Mabey took no interest in the Brotherhood after the June elections. In the few meetings it had with the respondent, between October 15, 1937, and April 22, 1938, the Brotherhood presented about a half dozen grievances for consideration. It never demanded recognition as exclusive representative for the purposes of collective bargaining, .never bargained with the respondent, and never represented or claimed to represent a majority of the employees, although as late as December 1937 it continued to solicit employees openly on company time and premises to designate the Brotherhood as representative. Nonetheless, when on April 4, 1938, the president of the Oil Workers International Union demanded that the respondent bargain with Local No. 228 as exclusive representative designated by a majority of the employees, Halpern wired back: "Best proof would be a consent election between members Oil Workers International Union and Em- ployes Brotherhood of Port Neches Stop Would such a procedure be agreeable to you." Upon a careful consideration of. the testimony of Bigler, Jr., which in material portions was evasive, inherently self-contradictory, and disproven by the testimony of others with equal knowledge of the facts, we believe that he consciously falsified the date of the Em- ployees Independent Federation's organizational meetings, so as to create the appearance of its conception and growth at a time prior to the Supreme Court decisions validating the Act. Kofahl and Mabey assisted in this piece of deception, the former by his corrobo- rating testimony, the latter by his vagueness when he could have testified with reasonable certainty. We believe that the meetings, if any occurred, were first held no earlier than April 1937 and were the direct effect of the Supreme Court decisions. The record is barren 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of any evidence, other than the words of these individuals whom we disbelieve, that they had formed or even contemplated any organiza- tion before that time. No membership drive or other activity appears in the record to indicate its existence. We believe, too, that the respondent aided, assisted, and encouraged its employees in the formation of the Brotherhood and such predeces- sor organizations as combined to result in the Brotherhood. This we find in spite of Dengler's testimony that he had had no informa- tion about the formation of, or the employees' intention of forming, any such organization until he heard the testimony at the hearing. We also find that the respondent initiated and gave impetus to the formation of the Brotherhood by the conduct of its representatives at the April 24 and 26 meeting at Beaimiont, and by means of Dengler's statements at the final meeting of the Plan council on April 30, 1937, wherein he suggested and encouraged the continuance of the Plan without management representatives on its council. The Brotherhood was a direct outgrowth if not a mere transformation of the Plan, bearing the impress of the respondent's domination. The respondent contributed financial and other support to the Brother- hood as it had to the Plan. We find that the respondent dominated and interfered with the formation and administration of the Brotherhood at its Port Neches Works, and contributed financial and other support to it, and that the respondent has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III A, C, and D 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 with foreign countries, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. We have found that the respondent dominated and interfered with the formation and administration of the Plan at both its Galena Park refinery and its Port Neches Works, and contributed financial THE TEXAS COMPANY 869 and other support to it at both places ; and that the respondent did and has continued to do likewise with respect to the Brotherhood at its Port Neches Works. By-such practices and, at the Port Neches Works, by other means as well, the respondent has interfered with, restrained, and coerced its employees at the respective plants in the rights guaranteed in Section 7 of the Act. . Accordingly, we shall order the respondent to cease and desist from such unfair labor prac- tices, and, so as to assure the complete remedial effect of that provi- sion of the order 3 at the respondent's Port Neches Works, where the Brotherhood persists as a continuing obstacle to the free exercise by the employees of the rights guaranteed by the Act, we shall also order the respondent to withdraw all recognition from and disestablish the Brotherhood as a representative of the respondent's employees for the purposes of collective bargaining. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. Oil Workers International Union, Local No. 367 and Local No. 228, The Houston Works Employees Federation of The Texas Com- pany, and The Employes Brotherhood of The Texas Company are labor organizations, and the Employe Representation Plan of The Texas Company was a labor organization, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and adminis- tration of the Employe Representation Plan of The Texas Company, and by contributing support to it, the respondent engaged in unfair labor practices at its Galena Park refinery and Port Neches Works, within the meaning of Section 8 (2) of the Act. 3. By dominating and interfering with the formation and admin- istration of The Employes Brotherhood of The Texas Company, and by contributing support to it, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices constitute unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 8 "The continued existence of a company union established by unfair labor practices or of a union dominated by the employer is a consequence of a violation of the Act and renders ineffectual any order restraining the unfair labor practices ." Consolidated Edison Com- pany v . National Labor Relations Board, 305 U. S. 197. 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. The respondent has not engaged in unfair labor practices with respect to The Houston Works Employees Federation of The Texas Company, within the meaning of Section 8 (1) and (2) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the respondent, The Texas Company, and its officers, agents, suc- cessors, and assigns shall : 1. Cease and desist from : (a) Dominating or interfering with the administration of Em- ploye Representation Plan and The Employes Brotherhood of The Texas Company, or the formation and administration of any other labor organization of its employees, and from contributing financial or other support to said Plan and Brotherhood 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. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from The Employes Brotherhood of The Texas Company as the representative of any of its employees at the Port Neches Works for the purpose of dealing with the respond- ent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of employment, and completely dises- tablish The Employes Brotherhood of. The Texas Company as such representative; (b) Immediately post notices: in conspicuous places throughout its Galena Park refinery and its Port Neches Works, and maintain such notices for a period of at least sixty (60) consecutive days from the date of posting, stating appropriately at the respective plants (1) that the respondent will cease and desist in the manner aforesaid, and (2) that it withdraws all recognition from and will refuse to recog- nize The Employes Brotherhood of The Texas Company as the rep- resentative of any of its employees at the Port Neches Works for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of employment, and that it completely disestablishes said Brotherhood as such representative; THE TEXAS COMPANY 871- (c) Notify the Regional Director for the Sixteenth Region in writ- ing within ten (10) days from the date of this Order what steps the. respondent has taken to comply herewith. AND IT IS FURTHEE ORDERED that the complaint be, and it hereby is,. dismissed in so far as it alleges that the respondent has engaged in,, unfair labor practices within the meaning of Section 8 (1) and (2)^ of the Act, with respect to The Houston Works Employees Federa- tion of The Texas Company. M8. WILLIAM M. LEISERSON took no part in the consideration of the, above Decision and Order. 247384-40-vol. 17--56