Phillips Petroleum Co.

In the Matter of PHILLIPS PETROLEUM COMPANY and OIL WoRmMs INTERNATIONAL UNION, LOCAL NO . 309 Case No. C-917.-Decided June 3, 1940 Oil Refining Industry-Jurisdiction: products of employer sold to another business concern which refines the products and then ships into interstate com- merce ; warehouse functioning as an auxiliary to production departments which ship goods into interstate commerce, held subject to jurisdiction of Board- Interference, Restraint, and Coercion: anti-union statements ; inquiry to ascer- tain membership in labor organization ; threat of discharge for union member- ship-Discrimination: by lay-offs and transfer, charges of, sustained as to five employees ; change in location of employment held, discriminatory, even though at no reduction in wages; discharge for refusal to accept such transfer, held discriminatory ; complaint dismissed as to one employee who did not appear to testify-Reinstatement Ordered: of employees discriminatorily discharged and transferred-Bank pay: to run from date of filing of charges because of delay in filing; no back pay for period from Intermediate Report to date of decision when Trial Examiner recommended dismissal-Company-Dominated Labor Organizations: representation plan organized, sponsored and wholly sup- ported by respondent which reserved veto power over amendments to plan and controlling voice in governing body : no affirmative order as to, in view of disestablishment by employer prior to hearing ; new organization formed by official under representation plan at' instance of and with assurance of re- spondent's support, and against background of respondent's hostility toward and discharge of employees active in behalf of affiliated labor organization : ordered disestablished as agency for collective bargaining; employer ordered to cease giving effect to contract with-Procedure: apparent failure of Union to serve exceptions upon respondent held no bar to review of Trial Examiner's findings of no discrimination or domination. Mr. Warren Woods, for the Board. Mr. Ed. Waite Clarke and Mr. R. B. F. Hummer, of Bartlesville, Okla., for the respondent. Mr. J. E. Crail, of Fort Worth, Tex., for Local 309. Mr. William B. Barton and Mr. David Rein, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Oil Workers International Union, Local No. 309, herein called Local 309, the Na- 24 N. L. R. B., No. 23. 317 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tional Labor Relations Board, herein called the Board, by Edwin A. Elliott, Regional Director for the Sixteenth Region (Fort Worth, Texas), issued its complaint dated July 19, 1938, against Phillips Petroleum Company, herein called the respondent, alleging 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 National Labor Relations Act, 49 Stat. 449, herein called the Act. With respect to the unfair labor. practices, the complaint alleged in substance that the respondent (1) prior to July 5, 1935, and from July 5, 1935, to January 1937, fostered, encouraged, sponsored, domi- nated, and interfered with the formation and administration of and contributed support to a labor organization, herein called the Plan,' among its employees at its natural gasoline plant, herein called the Denoya plant, and its warehouse, both located near Shidler, Oklahoma, and among its employees employed in the operation of its produc- tion wells in the Shidler and Burbank area; (2) from on or about March 15, 1937, and thereafter, fostered, encouraged, sponsored, dom- inated, and interfered with the formation and administration of and contributed support to a labor organization among its said employees, known as and herein called the Employee Representatives, which labor organization was in all respects substantially the same organi- zation as the Plan; (3) in March 1936, discharged and thereafter refused to reinstate R. F. Gravid, W. D. Hollenback, W. J. Godat, and H. E. Anderson for the reason that each of them had joined and assisted Local 309, and had engaged in concerted activities with other employees of the respondent for the purpose of collective bargaining and other mutual aid and protection; (4) in March 1936, transferred Herb Staten and James L. Swicegood 2 from the Shidler-Burbank area to' other places because of their activities on behalf of Local 309; and (5) through the acts and statements of its foremen and superin- tendents, discouraged membership in Local 309, and by these acts and by other acts, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On August 6, 1938, the respondent filed its answer to the com- plaint denying the jurisdiction of the Board and further denying that it had engaged in any of the unfair labor practices averred in the complaint. Pursuant to notice, a hearing on the complaint was held at Shidler, Oklahoma, on August 8 and 9, 1938, at Kaw, Oklahoma, ' The full name of this organization is Phillips Plan of Employee Representation, see infra. 2 At the hearing, upon motion by Board counsel . the complaint was amended to correct the spelling of the names of Hollenback, Godat, Staten , and Swicegood to appear as set forth in the text above. PHILLIPS PETROLEUM COMPANY 319 on August 10, 1938, and at Kaw and Tulsa, Oklahoma on August 11, 1938, before Thomas H. Kennedy, the Trial Examiner duly desig- nated by the Board. The Board and the respondent were repre- sented by counsel and Local 309 by a union official. All participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the opening of the hearing, the respondent, on the ground that the Board lacked jurisdiction, and on the further ground that the Act was unconstitutional, moved to dismiss the proceeding and to strike the complaint both in part and in its entirety. The Trial Examiner denied the motions to strike, but reserved ruling on the motion to dismiss. At the close of the Board's case and again at the close of the hearing, the respondent made several motions to dismiss the complaint both in part and in its entirety. The Trial Examiner reserved ruling on these motions. In his Intermediate Report the Trial Examiner overruled the motions to dismiss.3 These rulings are hereby affirmed. During the course of the hearing the Trial Examiner made several other rulings on motions and on objections to the admission of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were committed. These rulings are hereby affirmed. On August 29, 1938, the respondent filed with the Board a motion for judgment on the evidence. This motion is hereby denied. On September 13, 1938, the Trial Examiner filed his Intermediate Report, dated September 2, 1938, in which he found that the re- spondent, by dominating and interfering with the Plan, and by contributing financial and other support to it; by discharging and refusing to reemploy W. D. Hollenback, R. F. Gravitt, and H. E. Anderson; and by other acts, had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1), (2), and (3) of the Act. The Trial Examiner recommended that the re- spondent cease and desist from such unfair labor practices, reinstate with back pay to their former positions said employees, withdraw recognition from and disestablish the Plan, and take certain other appropriate action to remedy the situation brought about by the unfair labor practices found.. The Trial Examiner further found that the respondent had not discriminatorily discharged or refused to reemploy W. J. Godat, James L. Swicegood, and Herb Staten 4 sin his ruling, the Trial Examiner referred only to the motions made at the close of the hearing. These motions, however, were made on the same ground as the earlier motions of the respondent and the Trial Examiner's ruling was obviously intended to cover all motions to dismiss. 4 The Trial Examiner used the name James Staton in his Intermediate Report. See footnote 2, supra. 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and had not dominated or interfered with or contributed financial or other support to the Employee Representatives and, accordingly, recommended that the complaint be dismissed in these respects. On September 23, 1938, Local 309 filed exceptions to the Intermediate Report.5 On September 24, 1938, the respondent filed exceptions to the Intermediate Report and on the same day filed a motion to reopen the record to permit the filing of an affidavit with respect to the posting by the respondent of a certain notice or, in the alternative, to permit the introduction of testimony with respect to such posting. On March 20, 1940, the Board issued an order granting the respondent's motion, reopening the record, and receiving the affidavit as part of the record herein. On May 26, 1939, the respondent agreed to the waiver of oral argu- ment which it had previously requested, and on June 1, 1939, Local 309 also agreed to such waiver. On May 18, 1939, the respondent, and on June 22, 1939, Local 309, filed briefs which we have considered. On March 4, 1940, the Board issued an order reopening the record, directing a further hearing for the purpose of adducing further evi- dence with respect to the business of the respondent, referring the proceeding to the Regional Director, and granting the parties the right to file supplemental briefs on the evidence adduced at the hearing. Pursuant to this order, the respondent and the Board, on or about May 8, 1940, entered into a stipulation setting forth the facts concerning the business of the respondent, and providing that the facts set forth therein could be incorporated as part of the record. This stipulation is hereby incorporated and made part of the record herein. None of the parties filed a supplemental brief. The Board has reviewed the exceptions filed by the respondent and Local 309 and, in so far as these exceptions are inconsistent with the findings, conclusions, and order hereinafter set forth, finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, Phillips Petroleum Company, is a corporation or- ganized in 1917 under the laws of the State of Delaware. It is engaged in the production, refining, and sale of petroleum and petroleum products. Directly and through wholly owned subsidiaries,6 the re- spondent operates 3,483 producing oil and gas wells in the States of 5 These exceptions do not appear to have been served upon the respondent . However, the Board , of course, is not precluded from reviewing the record with respect to any of the allegations of the complaint on its own motion. a As of May 8, 1935, the respondent had 20 wholly owned subsidiaries , 9 in operation, and 11 Inactive. PHILLIPS PETROLEUM COMPANY 321 Oklahoma, Kansas, Texas, Arkansas, New Mexico and Kentucky, 38 natural gasoline plants in the States of Oklahoma, Texas, and New Mexico, and 3 refineries located in Kansas, Oklahoma, and Texas; maintains 1,321 miles of gathering and trunk lines in the States of Oklahoma, Kansas, Texas, and Arkansas; and owns and operates 2,261 bulk and service stations and has 6,512 resale outlets in the States of Indiana, Illinois, Kentucky, Wisconsin, Minnesota, Iowa, Missouri, Tennessee, Arkansas, Texas, Oklahoma, Kansas, Nebraska, Colorado and New Mexico. Through a wholly owned subsidiary ,7 the respond- ent maintains distribution centers in the States of Ohio, Michigan, New York, Massachusetts, New Jersey, Indiana, Maryland, Connecti- cut, Wisconsin, Rhode Island, and Pennsylvania. The principal office of the respondent is located in Wilmington, Delaware, and its operating offices are located in Bartlesville, Okla- homa, and New York City. In addition, the respondent maintains approximately 30 branch offices in the States of Texas, Illinois, Colo- rado, Iowa, Michigan, Minnesota, Indiana, Kansas, Missouri, Wis- consin, Nebraska, Oklahoma, Pennsylvania, Louisiana, and Arkansas, and in the District of Columbia. The present proceedings involve the respondent's operations in the. Shidler-Burbank area in Oklahoma. In this area, the respondent owns either wholly or partially 815 wells of which 762 are active wells. From these wells, the respondent, under the supervision of its Production Department, produces annually approximately 850,000 barrels of crude oil. All of this crude oil is sold by the respondent to the Standish Pipe Line Company, a wholly owned subsidiary of the respondent, which in turn sells the oil to the Mid-Continent Petro- leum Corporation. This oil is commingled with other oil produced or purchased by the Mid-Continent Petroleum Corporation and is transported to and refined at the refinery of the Mid-Continent Petroleum Corporation at West Tulsa, Oklahoma. The oil pur- chased from the respondent constitutes one-tenth of the total' oil re- fined by the Mid-Continent Petroleum Corporation at this refinery. In 1937 the value of the products produced at this refinery amounted to approximately $32,793,528.80, and 91 per cent of such products were sold in States other than the State of Oklahoma. Upon these facts, it is clear that there is a continuous flow of oil produced under the supervision of the respondent's Production Department from wells in the Shidler-Burbank area, from the State of Oklahoma to points outside of the State of Oklahoma and we so finds 7 The Philgas Company. 8 Cf. N. L. R. B. v. Sunshine Mining Company, 110 F. (2d) 780 (C. C. A. 9 ), modifying in part and enf'g as modified Matter of Sunshine Mining Company and International Union of Mine, Mill and Smelter Workers, 7 N. L. R . B. 1252 ; see also Matter of McAlbert Oil Company, Inc., et at. and Oil Workers International Union, Local 227, 21 N. L. R. B. 863. 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent, under the supervision of its Gasoline Department, produces from its own wells in the Shidler-Burbank area, and from wells in this area owned by other companies, casinghead gas, in the average annual amount of 9,000,000 M cu. ft. Approximately 4,500,000 M cu. ft. of gas produced either by the respondent or other companies in the area is processed at the respondent's Denoya plant situated in this area. From this gas, there is produced at the Denoya plant, an annual average of 14,000,000 gallons of gasoline, of which for the years 1935 to 1938, approximately 83 per cent was transported out of the State of Oklahoma. Until some time after the hearing the respondent maintained in the Shidler-Burbank area a warehouse operated under the super- vision of its Material Department. This warehouse serviced both the Production Department and the Gasoline Department in the area with salvaged used materials and with fittings and other machine parts, and thus functioned as an auxiliary to the operations of these two producing departments and as an integral part of the respond- ent's operations in the area.9 II. THE ORGANIZATIONS INVOLVED Oil Workers International Union, Local No. 309, a labor organiza- tion, is a local of Oil Workers International Union which is affiliated with the Committee for Industrial Organization 10 Prior to June 1937, Oil Workers International Union bore the name of Inter- national Association of Oil Field, Gas Well and Refinery Workers of America, and was affiliated with the American Federation of Labor. It assumed its present name and affiliation at a convention held in June 1937. Local 309 admits to membership petroleum workers in the Shidler-Burbank area, including employees of the respondent. The Phillips Plan of Employee Representation was an unaffiliated labor organization, organized in 1933 and admitting to membership, employees of the respondent. Employee Representatives is a labor organization established at the respondent's Denoya plant in 1937. III. THE UNFAIR LABOR PRACTICES A. Interference with, domination, and support of the Plan The Phillips Plan of Employee Representation, herein called the Plan, was devised by the respondent in June 1933. Shortly there- after, its purpose and method of operation was explained by the re- 9 Cf. Matter of The Texas Company . and Building Service Employees Local union No. 75, 21 N. L. R. B. 110. . 10 Now the Congress of Industrial Organizations. PHILLIPS PETROLEUM COMPANY 323 spondent to its employees throughout its properties, including the Denoya plant, the Production Department, and the warehouse in the Shidler-Burbank area. It does not, however, appear to have been established as an organization in the Shidler-Burbank area until shortly after the commencement of organizational activities of Local 309 in March 1934. On March 23, 1934, a meeting attended by an organizer for Oil Workers International Union was held at the Shidler-Burbank area, and on March 24 the respondent called a meeting of its employees in this area. At this meeting there were present as representatives of the respondent, Jopling and Bunn of the Public Relations De- partment from the respondent's Bartlesville office and the superin- tendents of the Denoya plant, the Production Department, and the warehouse in the Shidler-Burbank area. Jopling opened his talk by explaining that he had been "drafted" by Phillips, the president of the respondent, to organize the Plan. He spoke about the success the Plan had achieved at other properties of the respondent, and informed the men that the respondent would never recognize an "outside organization." He added that if any of the men were dis- satisfied with their jobs "you ought to have the guts to quit; there is 11,000,000 men will take your place." A few days later the re- spondent called another meeting of its employees in the area. Jopling explained that the purpose of the meeting was to hold an election "to see who was in favor of the company union or the American Federation of Labor." He told the men that they would have a secret ballot, but instructed them to sign their names to the ballot. The ballots were counted by a minister from, a nearby town, and the results were announced as favorable to the Plan. About March 1934, the respondent distributed to its employees in the Shidler-Burbank area, as well as to other employees a booklet entitled "The Employees' Manual of the Phillips Plan of Employee Representation," 11 which contained the provisions of the Plan and an explanation of its operation. The booklet was prefaced by a state- ment by Frank Phillips, president of the respondent, endorsing the Plan as "an important step in our progress" and "an essential, worth- while arrangement for the promotion of your contentment and use- fulness as an employee in the common cause." In the booklet the respondent advocated the Plan as the, most "democratic and effective" "scheme of cooperation." The Plan established "joint councils, composed of representatives of the employees . . . elected by the employees, and [an equal number of] representatives of the management, to discuss and adjust, subject to final review by the Board of Directors, all matters of "The,.Manual is dated January 1934.. 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD common interest, such as hours, wages, working conditions, and griev- ances of employees." For the purposes of administration "the em- ployees . . . [were] divided by major divisions such as Pro- ducing, Refining and Marketing. Each major division . . . [was]. subdivided into such local councils as are necessitated by the location of the employees." 12 Each local council was to hold meet- ings "at regular intervals on dates prescribed by the personnel officer." Elections were held annually in which each employee of the respond- ent of 6 months' standing was eligible to vote "except those identified with management." Only employees of 1 year's standing who were American citizens and over 21 years of age were eligible to serve as employee representatives. There were no dues or assessments re- quired of the employees; all expenses of the Plan were defrayed by the respondent, including the cost of printing ballots and holding elections. Amendments to the Plan required the approval of two- thirds of the local councils in any of the respondent's operating divisions,13-such approval to be manifested by the favorable vote of two-thirds of the employees' representatives and two-thirds of the management's representatives of each local council-and the ap- proval of the Board of Directors of the respondent. No amendment could be adopted "that will destroy or limit the equal voting power of the employees' representatives and the management's representa- tives in the local councils." The Plan was patently the creature of the respondent. It was sponsored, organized and advocated by the respondent. By the struc- ture of the Plan the respondent insured its control and supervision of the operations of the Plan, and rendered it incapable of function- ing as a real bargaining agency for the employees. The employees did not pay dues or contribute to the support of the Plan; it was financed completely by the respondent and was thus dependent upon the respondent for its operation. In selecting representatives to rep- resent them in meetings with the respondent, the employees were restricted to employees of the respondent. The set-up of the joint councils gave to the respondent a controlling voice in all matters discussed at council meetings, and all such matters, moreover, were "subject to final review by the Board of Directors." Finally, by the requirement that amendments to the Plan be approved by two-thirds of the management representatives and the Board of Directors, the essential structure of the Plan could not be altered without the consent of the respondent, and it was further expressly provided that the set-up of the joint councils which insured a controlling voice to the respondent could not be altered in any fashion. Such con- 12 The Denoya plant was combined with other natural gasoline plants to form a local council separate from the Production Department in the area. See Section D, infra. ' Amendments could be adopted for one division alone. Cf . footnote 12, eupra. PHILLIPS PETROLEUM COMPANY 325 trol of the form and structure of the Plan by the respondent obviously subjected the operation of the Plan to the will and domination of the respondent and deprived the employees of the complete freedom of action guaranteed to them by the Act.14 The respondent does not contend that it did not sponsor, organize and promote the Plan, and thereafter dominate, control and support its administration. The respondent does contend, however, that the record does not'disclose that the Plan functioned after the effective date of the Act., This contention is contrary to the record. Warren L. Felton, director of employee relations for the respondent, testified that the last meeting under the Plan in the Shidler-Burbank area was in October 1936, and that the Plan "was definitely out about November 1936." Moreover, although the Plan may have been neglected and unused by the employees, employee representatives still held office and met to fill a vacancy under the Plan as late as March 1937. Finally, on May 10, 1937, the respondent itself considered that there was sufficient vitality in the Plan to cause the respondent to address and send a letter to "Employees' Councilmen," referring to the Plan as being as of that date in existence and participated in by the respondent, and stating that, pursuant to the decisions of the Supreme Court upholding the constitutionality of the Act, the respondent was withdrawing from further participation in the Plan. Thus, even though activity under the Plan may have decreased after the effective date of the Act, it is clear from the record that the Plan continued to exist at least until some time in 1937, and that its con- tinued existence during this period as a respondent-dominated labor organization constituted an obstacle to the self-organization of the respondent's employees. Whether or not the Plan was thereafter disestablished or disbanded, the respondent, because of its domination and support of the Plan, engaged in unfair labor practices from July 5, 1935, to the date of the disestablishment or disbandment of the Plan. We find that the respondent dominated and interfered with the administration of, and contributed financial and other support to the Plan in the Shidler-Burbank area, and thereby interfered with, re- strained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. Interference, restraint, and coercion In the latter part of 1935, Local 309 initiated a new organizational. drive. In November and December 1935, a petition designating u See N. L. R. B. v. Newport News Shipbuilding and Dry Dock Company, 60 Sup. Ct. 203. 288035-42-vol. 24-22 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 309 as bargaining agent was circulated among the respondent's employees, approximately 144 of whom signed the petition. Most active in the circulation were W. J. Godat and James Swicegood. After the circulation of the petition, Local 309 selected a committee, none of whose members were employees of the respondent, for the purpose of bargaining with the respondent. This committee pre- pared a letter dated December 18, 1935, requesting a meeting for the purpose of bargaining collectively with the respondent, and delivered copies of the letter to Jolly, superintendent of the Production Depart- ment, Williams, in charge of the Denoya plant, and one other super- visory official of the respondent. About two weeks later, the committee called on Jolly and requested a meeting, but Jolly said he would have to consult with Jopling, director of public relations for the respondent. Shortly thereafter, the committee again called on Jolly, at which time Jolly told them that he had been unable to reach Jopling. The committee then telephoned .Jopling at Bartlesville and requested a meeting date for the purpose of collective bargaining, but Jopling refused to set a date unless the list of employees who had designated Local 309 as bargaining agent was first submitted to him. The committee refused to do this and no meeting date was set. On about February 1, 1936, shortly after these unsuccessful attempts by the committee of Local 309 to secure a meeting with the respondent, Jolly called a safety meeting of the employees under his jurisdiction. Three of the respondent's employees, Godat, Anderson and Gravitt testified that at the close of this meeting, Jolly addressed the em- ployees on the subject of the activities of Local 309. According to their testimony, Jolly opened his talk by referring to the petitions that had been circulated by Local 309, and Local 309's request to bar- gain, then said that the respondent was "greatly surprised" at the fact that Local 309 had written a letter to the respondent and was "kind of up in the air about it," added that Local, 309 "could only put them out of a job, but it sure as the dickens couldn't put them back on the job," advised the employees "to get the chip off their shoulder," and concluded with, "All you boys that have anything to do with it is sticking a knife in your own back." Jolly denied that he had told the employees that they were "sticking a knife in [their] own back" by signing the petition. He did not, however, deny making any of the other statements attributed to him. He admitted, moreover, that he did say "something about the chip on the shoulder," and, testified further that he could not be positive about anything he did or did not say at the meeting. Apart from whether Jolly said that the employees were "sticking a knife in [their] own back" by signing the petition, it is clear that Jolly's remarks disparaged ac. tivity on behalf of and membership in'Local 309, and that thereby the. PHILLIPS PETROLEUM COMPANY 327 respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.- More- over, the disputed statement is clearly consonant with the remainder of Jolly's remarks, and, as we have noted, Jolly admitted that his memory of the incident was faulty. The Trial Examiner, who heard the wit- nesses testify and observed their demeanor found that Jolly had de- clared that the employees were "sticking a knife in [their] own back" by signing the petition, and we fold, as did the Trial Examiner, that Jolly made this statement. We further find that thereby the respond- ent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Shortly after Jolly's speech, Tom Stovall, a foreman of the respond- ent in the Production Department supervised by Jolly, approached E. L. Boxley, an employee of the Skelly Oil Company, operating prop- erties adjacent to properties of the respondent in the Shidler-Burbank area. Stovall inquired of Boxley whether any of the respondent's employees were "bothering [him] about the union." When Boxley replied in the negative, Stovall requested that if any of the respondent's employees "was bothering" Boxley, that Boxley report this to his superintendent so that his superintendent could report the matter to the superintendent of the respondent, and the employee involved could be discharged. This attempt by Stovall to discover which of the re- spondent's employees: were active in behalf of Local 309 for the pur- pose of taking disciplinary action against these employees clearly con- stituted interference with the rights of the respondent's employees under the Act. Moreover, the threat of discharge, contained in Stovall's statements, although made. to one who was not an employee of the respondent would, in the normal course of events be conveyed to employees of the respondent, and was probably meant to be so conveyed. Such a threat of discharge for union activities plainly constituted interference with, and restraint and coercion of the rights of the respondent's employees as guaranteed in Section 7 of the Act. At the hearing, the respondent made an offer of proof that all but 19 of its employees, if placed on the stand, would testify that they did not refrain from joining Local 309 because of fear of discrimination by the respondent. Counsel for the Board conceded that a majority of the is In its brief, the respondent urges that there is no need to believe Godat, Anderson and Gravitt as against Jolly or Jolly as against Godat, Anderson and Gravitt , but that their testimony may be reconciled ; and that upon reconciling the testimony , it would appear that Jolly "possibly . . . said that they [the employees] had better look to the company which had taken care of them through the depression, rather than play into the Union's bands, because after all it was the company and not the Union that was furnish- ing them with. jobs ; that they had been treated pretty well, and that they had better take stock of themselves, and get the chip off their shoulders." It needs no argument to demonstrate that such statements are intended to and do discourage union activity, and accordingly constitute interference, restraint and coercion within the meaning of the Act. . 328 DECISIONS - OF NATIONAL LABOR RELATIONS BOARD employees would so testify and the Trial Examiner thereupon declined to hear the testimony. In its brief the respondent contends that this offer of proof is conclusive that the respondent did not interfere with, restrain and coerce its employees in the exercise of the rights guaran- teed in Section 7 of the Act. This evidence that the respondent's state- ments, plainly intended to prevent the self-organization of the re- spondent's employees and their affiliation with and continued member- ship in Local 309, did not achieve their intended effect, cannot, how- ever, be given weight. The effect of such statements is not to be deter- mined by a poll of individual employees, but by an evaluation of the natural consequences of such statements made not by one equal to another but by an employer to those dependent upon him for their continued employment and livelihood.16 We have no doubt, and we find, that the necessary as well as the intended effect of the statements of Jolly and- Stovall was to interfere with, restrain and coerce the respondent's employees from affiliating with or continuing their mem- bership in Local 309.17 Moreover, even if it be conceded that the statements of Jolly and Stovall were not successful in preventing the employees from affiliating with or remaining members of Local 309, nevertheless the statements were by their nature coercive and the re- spondent may not claim immunity because they were not coercive enough to achieve their intended effect.18 We find that the respondent, by the statements of Jolly and Stovall, which we have set forth above, interfered with, restrained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The discriminations in regard to hire and tenure of employment The complaint alleges that the respondent discriminated in regard to the hire and tenure of employment of six of its employees : Herbert Anderson, R. F. Gravitt, James Swicegood, W. J. Godat, W. D. Hollenback and Herb Staten. All of these employees were either discharged, laid off or transferred about the middle of March 1936, approximately a month after Jolly, superintendent of the Production Department in the Shidler-Burbank area, had issued the warning that Local 309 "could only put . . . [the employees] out of a job," and Stovall had attempted to learn which of the respondent's 16 Compare the testimony in the record that subsequent to Jolly's talk a number of employees asked that their names be stricken from the petition which had been circulated by Loral 309, and the membership in Local 309 decreased. 17 Matter of Yale cf Towne Manufacturing Company and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No. 1647 et al., 17 N. L. Ri. B. 666. is Matter of Jefferson Lake Oil Company, Incorporated and Sulphur Workers Local Union No. 21195, 16 N. L. R. B. 355; Matter of The Colorado Fuel and Iron Corporation and International Union of Mine, Mill and Smelter Workers Local 442, 22 N. L. R. B. 184. PHILLIPS PETROLEUM COMPANY 329 employees were active in behalf of Local 309 for the purpose of bringing about their discharge. The respondent, moreover, had ini- tiated, sponsored and organized the Plan, an employer-dominated labor organization, had clearly indicated to its employees its desire that the employees be represented by the Plan, and had continued to deal with the Plan as the representative of its employees. The allegations of discrimination in the complaint must be considered against the background of these events. Herbert Anderson and R. F. Gravitt were laid off or discharged from the Production Department on about March 15, 1936. Anderson entered the employ of the respondent in 1927, worked for two or three weeks, was laid off and was reemployed in February 1928. He worked for the respondent as a mechanic in a garage in Wichita, Kansas, and in a machine shop in the Shidler-Burbank area, and in March or April 1934, was transferred to a position as a roust- about in the Production Department in the Shidler-Burbank area. In this position, in addition to ordinary roustabout duties, Anderson, because of his special skill, occasionally worked as a mechanic, re- pairing tractors and at other miscellaneous mechanical work. Ander- son joined Local 309 in May 1934, and between that date and March 1936, he held the offices of third vice president, second vice president and first vice president of Local 309. He also served as a member of a grievance committee of Local 309 that called on Jolly in the fall of 1935. At the time of his dismissal in March 1936, he was in charge of collecting dues from the respondent's employees for Local 309. Gravitt worked for the respondent for a short period in 1927, and reentered the employ of the respondent in 1929 as a machinist in a machine shop in the Shidler-Burbank area. The machine shop was closed in October 1935 and Gravitt was transferred to a position as a roustabout in the Production Department in the Shidler-Burbank area. Because of his special skill, Gravitt, in addition to doing the ordinary roustabout work, worked as a carpenter in the repairing of houses. Gravitt joined Local 309 in September 1934. In the fall of 1935, while he was still employed in the machine shop, Goldsmith, the foreman of the machine shop spoke to him about his union member- ship, warning him, that if he "wanted to keep ... [his] job to Christ's sake get out of the union because it would get . . . [his] job." Anderson and Gravitt were notified of their lay-off on about March 15, 1936, by their foreman, Taylor. At the time, Taylor told Ander- son that his work was satisfactory, saying, "You have always made a good hand, never refused to do any of the dirty work I put you on. That is more than I can say about some of the men that I have to keep." Taylor also told Gravitt that Gravitt's work had been satis- factory, adding that the decision to dismiss Gravitt had come from 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Bartlesville office of the respondent, and that he, Taylor, had had nothing to do with it. About a week later, Anderson, Gravitt and Hollenback, another employee who had been laid off at about this time,19 visited the respondent's office in Bartlesville and saw Hubbel, assistant to the general manager of the respondent's Production Department. Gravitt was the spokesman for the group and told Hubbel that Anderson, Hollenback and himself had been dismissed and they would like to "find out the reasons or help ourselves in any way." Hubbel "kind of laughed" and said, "You know how it feels to be canned then, don't you." Gravitt then protested that he was supposed to have been laid off, not discharged, and mentioned his long period of service with the respondent. Hubbel, in reply, showed the men a magazine issued by the respondent containing a statement that the respondent "didn't recognize seniority." Hubbel would not give the men any reason for their dismissal, nor did he offer them transfers to some other place. Indeed, during the interview, Anderson told Hubbel that he knew of an opening with the respondent at Bartlesville, and Hubbel replied, "Oh no, no. That is impossible. Couldn't do that at all." About two weeks after this interview with Hubbel, Gravitt went to see Atkinson, who had replaced Jolly as superintendent at the Burbank field. After a short talk, Atkinson told Gravitt to return at 4 that afternoon. When Gravitt returned, Atkinson informed him that he had secured Hubbel's consent for a transfer for Gravitt, but would like to talk to Gravitt "a little bit more." He then asked Gravitt if he would be "loyal" to the respondent and would "co- operate." Gravitt answered that he would try and Atkinson then said, "Another question I want to ask you. I want to know what the boys think now about the union." Gravitt replied that Local 309 was "busted. They are all scared to death." Gravitt was not thereafter notified of a transfer by Atkinson or by any other official of the respondent. At the hearing the respondent offered no explanation for the lay-off or discharge of Anderson and Gravitt. Jolly, the only official of the respondent who testified with regard to these dismissals, stated that he had received instructions from Bartlesville to lay off Anderson and Gravitt by name, but that he was not consulted prior to receipt of these instructions. In its brief, the respondent advanced the con- tention that Anderson and Gravitt were selected to be laid off because work had slackened and these two, although listed as roustabouts, "were doing work other than the regular roustabout work.", Not only is this contention unsupported by any testimony in the record, but it is clearly contradicted by the record. Although Anderson and Gravitt 11 Hollenback's case is discussed below.. PHILLIPS PETROLEUM COMPANY 331 were doing regular roustabout work they were doing other specially skilled work in addition. It seems improbable that the respondent in choosing among its employees should select for lay-off employees who could not only do the ordinary work required of roustabouts but could also perform tasks requiring a special skill. Moreover, even if the only basis for selection had been ability to perform the normal duties of a, roustabout, according to Taylor, their foreman, the work of both Anderson and Gravitt was satisfactory and indeed in Anderson's case Taylor explicitly expressed a preference for Anderson's work over that of others who were retained. Further, it is not likely that, if the contention advanced by the respondent in its brief were in fact true, the respondent would have refused to inform Anderson and Gravitt that such was the reason for their dismissal. Indeed, Hubbel's statement, "You know how it feels to be canned," made in response to the inquiry of Anderson and Gravitt concerning the reason for their dismissal, clearly contradicts the con- tention in the respondent's brief and moreover indicates that Ander- son and Gravitt were being discriminated against by the respondent for some reason which Hubbel did not'choose to disclose. Finally, the respondent's own employment records show that subsequent to the dismissal of these two men in March 1936, the respondent in June augmented the staff of the Production Department in the Burbank area. Nevertheless, although the respondent knew that Anderson and Gravitt were available and desired work, it failed to offer them reem- ployment as would normally have been done if they had been merely laid off because of slack work. Hubbel, indeed, had flatly refused to assist Anderson in obtaining a transfer to a position at Bartlesville, when Anderson suggested that as a possibility. It is clear from all these circumstances that the reason advanced in the respondent's brief in explanation for the dismissal of Anderson and Gravitt is not in accordance with the facts, and we so find. The record establishes that the respondent's antagonism toward Local 309 furnished the -motivation for the dismissal of Anderson and Gravitt. We have described above the respondent's desire that its employees be represented by the Plan, its hostility toward Local 309, its threat that support of Local 309 would mean loss of employ- ment and its efforts to learn which of its employees were active in behalf of Local 309 in order to discharge such employees. The re- spondent had knowledge of Anderson's and Gravitt's union activities. Anderson and Gravitt were among the most active members of Local 309 among the respondent's employees. Anderson had been third, sec- ond, and first vice president of Local 309, and served on the grievance committee of Local 309 which called on Jolly in the fall of 1935, and at the time of his dismissal was in charge of collecting dues for Local 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 309. Because of Anderson's position on the grievance committee that called on Jolly, it is clear that Jolly had knowledge of Anderson's leading position in the activities of Local 309, and we so find.20 That the respondent had knowledge of Gravitt's membership in Local 309, is disclosed by the incident recited above in which Goldsmith advised Gravitt to leave Local 309 if he wished to keep his job, as well as by Gravitt's conversation with Atkinson after the lay-off, at which time Atkinson asked him "what the boys think now about the union." In view of these circumstances and the further factors that Taylor, the immediate foreman of Anderson and Gravitt, expressed satisfac- tion with their work at the time of their dismissal, stating with respect to Anderson that he preferred his work to that of others who remained in the respondent's employ, and that the respondent, at the time of the dismissals, refused to disclose to Anderson and Gravitt the reasons for their dismissal, and also failed at the hearing to offer any explana- tion therefor, it is plain that Anderson and Gravitt were dismissed because of their union activities. That the respondent's purpose in dismissing Anderson and Gravitt was to discourage membership in Local 309 is further indicated by the fact that in the fall of 1935, Gravitt was warned by his foreman that continued membership in Local 309 would mean his discharge, and even more clearly by the sub- sequent conversation between Gravitt and Atkinson in which Atkin- son inquired into Gravitt's "loyalty" to the respondent and the effect of the dismissals upon membership in Local 309. We find that the respondent discriminated in regard to the hire and tenure of employment of Herbert Anderson and R. F. Gravitt, thereby discouraging membership in Local 309 and thereby interfering with, restraining and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. About a month after his dismissal, Anderson secured employment with a steel company in Wichita, Kansas, as a machinist. Gravitt worked at various jobs after his dismissal, and as of the date of the hearing, had earned approximately $1,497 at these jobs. James L. Swicegood entered the employ of the respondent at the Burbank field in 1924, and was transferred to the Great Bend dis- trict in Kansas on about March 21, 1936. At the time of his trans- fer, he was employed as a roustabout. Swicegood was a charter member of Local 309. In January 1935, he testified at a hearing held before the Petroleum Labor Policy I Jolly testified that he could not remember that the committee of which Anderson was a member had at the time it called on him represented that it was a committee of Local 309. Godat testified that the committee did inform Jolly that it was a union committee, and that Jolly discussed the activities of Local 309 with the committee. In view of the circumstances of the interview and Jolly's admission that his memory of the incidents which occurred at this time was a faulty one, we credit the testimony of Godat and we find that the committee of Local 309 represented itself to Jolly as a union committee. PHILLIPS PETROLEUM COMPANY 333 Board on charges filed by Local 309 that the respondent had dis- criminatorily discharged members of Local 309. He was active in the circulation of the petition in November and December 1935, and was a member of the grievance committee of Local 309 that called on Jolly. About March 21, 1936, Swicegood was informed by his foreman, Stovall, that "he had orders to transfer [him] to western Kansas." About two or three days later, Swicegood saw Stovall and asked him if his work had been satisfactory. When Stovall replied af- firmatively, Swicegood asked "if the union was the cause of [his] transfer" and Stovall answered that it was. Swicegood was trans- ferred to the same position that he held at the Burbank field and received the same wages. Subsequently, he was promoted to a job as a pumper. In his Intermediate Report, the Trial Examiner found, upon the undisputed facts, that since Swicegood had been transferred to the same job in western Kansas as he had held at the Burbank field and was subsequently promoted to a better job, the respondent had not discriminated in regard to his hire and tenure of employment and the terms and conditions of his employment. The Trial Examiner erred in so finding, since his finding is not in accord with our de- cisions that a change in the location of employment, and the removal from familiar surroundings and, one's friends and relatives, con- stitute a material change in the terms and conditions of employ- ment.21 It appears from Swicegood's testimony that he desired to return to the Burbank area because he had lived in the Burbank area since 1924, the cost of living was much higher in Kansas, and "my folks is old and in awful poor health." Clearly, under these circumstances, the transfer constituted a material change in the terms and conditions of Swicegood's employment. Accordingly, his transfer to Kansas, if caused by his union activities, constituted a discrimination in regard to the terms and conditions of his employ- ment, even though the transfer was to a position similar to that which he held in the Burbank field. The record leaves no doubt that Swicegood was transferred be- cause of his union activities. We have described above the respond- ent's desire that its employees be represented by the Plan, its hostility toward Local 309, its threat that support of Local 309 would mean 21Matter of Mooresville Cotton Mills and Local No. 1221, United Textile Workers of America, 15 N. L. R. B. 416, enf'd, Mooresville Cotton Mills v. N. L. R . B. 94 F. (2d) 61 (C. C. A. 4) March 11 , 1910; Matter of Continental Oil Company and Oil Workers International Union, 12 N. L. R. B. 789; see Matter of L. C. Smith t Corona Typewriters, Inc. and International Metal Polishers, Buffers and Platers Union of North America, 11 N. L. R. B. 1382; Matter of Martel Mills Corporation and Textile Workers Organizing Committee, 20 N. L. R. B. 712. 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD loss of employment, and its efforts to learn which of its employees were active in behalf of Local 309 in order to discharge them. Swicegood was among the most active members of Local 309, and the respondent had knowledge of his active role in the affairs of Local 309 because of his testimony at a hearing before the Petroleum Labor Policy Board and his membership on the grievance committee of Local 309 that called on Jolly in the fall of 1935.22 Moreover, the respondent has offered no explanation for the transfer of Swicegood, and finally, Stovall, Swicegood's foreman, admitted to him that his transfer was caused by his union activities. We find that the respondent, by the transfer of James Swicegood, discriminated in regard to the terms and conditions of his employ- ment, thereby discouraging membership in Local 309, and thereby interfering with, restraining, and coercing its employees in the exer- cise of the rights guaranteed in Section 7 of the Act. W. J. Godat entered the employ of the respondent in July 1926, and in March 1936 was a pumper in the production division in the Burbank field. Godat was a charter member of Local 309, having joined in March 1934. He was a trustee of Local 309 at its forma- tion, was elected vice president in June 1935, and was reelected in December 1935. Godat testified at the hearing held in January 1935 before the Petroleum Labor Policy Board. He was the most active person in the circulation of the petition in November and December of 1935, and was also a member of the grievance committee of Local 309 which called on Jolly in the fall of 1935. Subsequent to this interview, Jolly visited Godat at his work, and discussed Local 309 with him. At the hearing Jolly admitted knowledge of Godat's union membership. . Shortly after Jolly's speech in February 1936, which we have described above,23 Godat was engaged in conversation with Carey Stroup, who had formerly been Godat's foreman, but who, at the time of this conversation, was a foreman in another section in the Burbank area. Godat asked Stroup what he thought of Jolly's talk, and Stroup replied that, in his opinion, there were many things wrong with Local 309. Godat answered that he was one of the officers of Local 309, had initiated the petition, and would have to stay with Local 309 "as far as I had any power to." Stroup then told Godat that "that was certain to mean the end of his [Godat's] job," and left with the comment that "all that made the cold chills run up his back." On Saturday afternoon, March 21, 1936, Godat was informed by his foreman, Tom Stovall, that he was being transferred to Great 92 See footnote 20, supra. 23 See Section III B, supra. -PHILLIPS PETROLEUM COMPANY 335 Bend, Kansas, which is between 200 to 300 miles from the Burbank 'field, and was to report to work there on Monday morning. Godat asked Stovall "what was wrong and how come," but Stovall answered that "he didn't know anything about it." Godat remonstrated that he could not possibly work at the Burbank field on Saturday and Sunday and report at Great Bend on Monday morning, to which Stovall replied that "he didn't know anything about it." Godat then asked to see Jolly but Stovall informed him that Jolly had left for Kansas, where he, Jolly, had been transferred. Thereupon, Godat expressed a desire to see the new superintendent but was informed that he had not yet arrived. The interview concluded with Godat's statement that he would "like to see somebody," and would report to Stovall on Monday. On Monday Stovall came to Godat's working place and handed him a dismissal check, saying "he was sorry to do it." Godat continued to work and on the next day Stovall returned with Ramsey, the time- keeper. Godat asked them why they did not give him "some prefer- ence and consideration like they had some of the other boys they had transferred." Godat said, "You fellows, you don't know what you are sending me to, what kind of a job, or whether I will have a place to move to." Either Stovall or Ramsey replied, "Why, I didn't know you would want to transfer anywhere else," to which Godat rejoined, "Well, that is what I have been trying to tell you all the time, trying to see the superintendent or somebody that knowed something." Sto- vall and Ramsey then left, saying they would speak to Atkinson, the new superintendent who had replaced Jolly. That afternoon Godat was called into Atkinson's office. Atkinson told Godat that he did not know whether he could do anything, but he wanted Godat to promise to be "loyal. to.the company," and to "go back home and stay around a few days" while Atkinson would "see what I can do." Several days later Atkinson called Godat in again and said to him, "I am sorry, but you are just out, Walt. The place in Kansas is closed too." The respondent at the hearing offered no explanation for Godat's selection for transfer. Jolly merely testified that the instructions for the transfer came from Bartlesville, but that he was not consulted. As is shown above in our discussion of Swicegood's case, the transfer clearly constituted a substantial change in the terms and conditions of Godat's employment and it is obvious from the entire record that Godat was ordered transferred because of his union activities. We have described above the respondent's desire that its employees be represented by the Plan, its hostility toward Local 309, its threat that .support of Local 309 would mean loss of employment and its efforts to learn which of its employees were active in behalf of Local 309 in order to discharge them, and we have found that at about the same 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time as the transfer and subsequent dismissal of Godat, the respondent dismissed 'two employees and transferred another because of their union activities. Godat was the vice president of Local 309 and among its most active members. Jolly admitted knowledge of Godat's union membership, and Stroup, a foreman of the respondent, told Godat that his union activities would result in his discharge. In view of these circumstances and the further factor that the respondent failed to offer any explanation for Godat's selection for transfer, we find that Godat was ordered transferred because of his union activities. The Trial Examiner found that Godat was discharged because he refused to accept the transfer and that therefore, the respondent had not discriminated in regard to his hire and tenure of employ- ment, and accordingly recommended that the complaint be dismissed with regard to Godat. The Trial Examiner erred in so finding and so recommending. Firstly, even if it be assumed that Godat was discharged because of his refusal to accept the transfer, the legal conclusion drawn therefrom by the Trial Examiner is not in accord with our previous decisions. We have heretofore held that when- ever any substantial change in the status of an employee is made upon a discriminatory basis, the refusal of the employee to accept the change does not ,furnish a just cause for discharge, nor can it be considered as a resignation from employment.24 We have found that Godat was ordered transferred because of his union activities and that the transfer constituted a substantial change in the terms and conditions of his employment. Accordingly, even if Godat had refused the transfer, a discharge for that reason would fall within the prohibition of the Act. Secondly, the Trial Examiner's finding is not in accord with the evidence in the record. No one testified that Godat's refusal to accept the transfer was the reason for his discharge, and, moreover, the record is clear that Godat did not refuse the transfer but merely asked to see a responsible official with regard thereto. Further, the record establishes that the respond- ent not only selected Godat for transfer because of his union activi- ties, as we have found, but thereafter seized upon Godat's failure to report to Kansas at once as a pretext for his discharge. The entire conduct of the respondent in its dealings with Godat at the time clearly indicates that the respondent was not acting in good faith. Godat was informed of the transfer by Stovall, a fore- man, who was unable to explain to Godat the reasons for the transfer. u Matter of Waggoner Refining Company, Inc., etc. and International Association of Oil Field, Gas Well and Refinery Workers of America, 6 N. L. R. B. 731 ; Matter of Con- tinental Oil Company and Oil Workers International Union, 12 N. L. R. B. 789; Matter of Union Tribune Publishing Company and American Newspaper Guild, Local No. 95, 12 N. L. R. B. 389; Matter of Goodyear Tire and Rubber Company of Oklahoma and United Rubber Workers of America, 21 N. L. R. B. 306. PHILLIPS PETROLEUM COMPANI 337 In view of Stovall's statement that he knew nothing about the . trans- fer, Godat's request to see a more responsible official of the respondent before he left for Kansas was eminently reasonable, particularly since he was not told that his failure to report to Kansas at once would mean his discharge. Indeed, apparently no course other than to remain at his present job was left open to Godat inasmuch as Stovall was either unwilling or unable to excuse him from his duties at the Burbank field on March 21 and 22 so as to enable him to report to the Kansas field at the designated time. The respondent did not offer any proof at the hearing that the job in Kansas was not still open at the time when Godat was finally able to see Atkinson, or that. if then open it became filled before Atkinson had had an opportunity to check and see Godat again. Further, that the filling of the position at Kansas was not the reason for the respondent's refusal to give Godat further employment, is indicated not only by the respondent's failure to inform Godat at any time that his further employment with the respondent was con- ditional upon his reporting to Kansas at once, but also by Atkin- son's remarks at the time of his first interview with Godat, in which he asked Godat to promise to be "loyal to the company" and said he would "see what I can do." It is plain from these remarks, and from the entire record, that the decision to dismiss Godat from the respondent's employ was made not upon any considerations of avail- ability of employment in Kansas, but rather upon the respondent's judgment with regard to Godat's "loyalty" to the respondent, which the respondent had, by its activities, made clear was inconsistent with membership in Local 309. We find that Godat was discharged be- cause of his union activities. We find that the respondent, by the transfer and the subsequent discharge of W. J. Godat, discriminated in regard to his hire and tenure of employment and the terms and conditions of his employ- ment, thereby discouraging membership in Local 309, and thereby Interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Up to the date of the hearing Godat had secured no regular em- ployment subsequent to his discharge. As of the date of the hearing he had earned approximately $100 on a work-relief project. W. D. Hollenback entered the employ of the respondent in 1924 and worked until December 1925 . He reentered the respondent's employ in 1926 and worked steadily until his dismissal on March 17, 1936. At the time of his dismissal he was employed in the warehouse in the respondent's Burbank field. Hollenback was a charter mem- ber of Local 309. Shortly after Hollenback reported to work on March 17, 1936, his foreman, Johnson, handed him a dismissal check. Hollenback 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asked "what it was all about," and Johnson replied, "I didn't have anything to say . . . I was not allowed to say anything." Johnson added that "Bartlesville told him not to say anything." Hollenback then asked if his work was satisfactory and Johnson said that he had nothing to say about his work. On March 20, 1936, Hollenback went to Bartlesville with other emmployees of the respondent.25 In Bartlesville, Hollenback saw George P. Gentry, in charge of the warehouse division for the respondent. Hollenback asked Gentry why he had been discharged, and Gentry replied, "I give you my word as a Mason and as a Legionnaire, Bill, I didn't have anything to do with getting you fired. There is a power higher up got you, Bill." Hollenback saw Gentry again on June 7, 1936, and on this occasion Gentry told him that he could not use him because he "didn't fit in the organization." At the hearing, the respondent sought through cross-examination of Hollenback to establish that "bad feeling" existed between him and Johnson, his foreman, but offered no other explanation for his dismissal. In its brief, the respondent contended that Hollenback was dismissed "because of [this] bad feeling." This contention, how- ever, is without support in the record. No official of the respondent testified that this was the reason for Hollenback's dismissal. Although Hollenback admitted that Gentry referred to a "personal feud" between Hollenback and Johnson, he did not testify that Gentry advanced this "feud" as the cause for his dismissal. Indeed, since Gentry was Johnson's superior, Gentry's statement that "a power higher up" was responsible for the dismissal clearly negatives the respondent's con- tention that the dismissal resulted from "bad feeling" between Hol- lenback and Johnson. The record establishes that Hollenback was dismissed because of his union activities. We have described above the respondent's desire that its employees be represented by the Plan, its hostility toward Local 309, its threat that support of Local 309 would mean loss of employment, and its efforts to learn which of its employees were active in behalf of Local 309 in order to discharge them. We have further found that at about the same time as the dismissal of Hollen- back, the respondent dismissed three employees and transferred another because of their union activities. The refusal of the respond- ent to give any explanation either to Hollenback himself, or at the hearing, for Hollenback's dismissal, Johnson's statement to Hollenback that "Bartlesville told him not to say anything," and Gentry's state- ments that a "power higher up" was responsible for the dismissal, and that Hollenback "didn't fit in the organization," must be interpreted in the light of these events. Clearly these statements cannot be 21 See footnote 19, supra. PHILLIPS 'PETROLEUM COMPANY 339 explained upon any theory of "bad feeling" between Hollenback and his foreman, and the statements, in the light of the entire record, plainly signify that Hollenback was dismissed because of his union activities, and we so find. We find that the respondent., by the dismissal of W. D. Hollenback, discriminated in regard to his hire and tenure of employment and the terms and conditions of his employment, thereby discouraging membership in Local 309, and thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Subsequent to his dismissal Hollenback worked for two different business concerns, and earned $136.80. In December 1936 he went into business for himself, operating a "beer parlor." To the date of the hearing, he had earned approximately $2000 in the operation of this "beer parlor." These earnings represent, however, a return for the joint labors of Hollenback, his wife, and children. Herb Staten who was listed in the complaint as having been dis- criminated against by a transfer from the Burbank field to another field did not appear to testify at the hearing, nor was evidence intro- duced by other witnesses establishing the charge that he was trans- ferred because of his union activities. Accordingly, we find that the record does not support the allegation in the complaint that Staten was transferred because of his union activities. D. Interference with, domination, and support of the Employee Representatives 1. The Denoya plant At the hearing, the origin of the Employee Representatives at the Denoya plant, was testified to by Woody Blackstock, an office employee in the Denoya plant. Blackstock was secretary 26 of a local council under the Plan which included the Denoya plant, and two other natural gasoline plants, the Pershing and the Reserve.27 Early in March 1937, Blackstock was approached by Warren Felton, who at the time was assistant superintendent of the Oklahoma division of the respondent's gasoline department and a management representa- 26 It appears from the record that Blackstock served in the capacity of secretary by virtue of his position as a clerk of the respondent . Although the bylaws of the Plan require that the secretary be elected from among the members of the council , it appears from the record that Blackstock was not an employee representative . The record, how- ever, contains no explanation for this. 21 Although much of the testimony concerning the establishment of the Employee Repre- sentatives at the Denoya plant, related events concerning the respondent's labor relations at the Pershing and Reserve plants, since the complaint did not allege that the respondent engaged in unfair labor practices at these plants, and the issues were not tried at the hearing, we make no findings with regard thereto. 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive under the Plan. Felton inquired of Blackstock concerning the state of activity of the Plan, and Blackstock replied that the Plan had "fallen by the wayside." Felton informed Blackstock that some of the other plants of the respondent were still operating under the Plan "or some other plan," and Blackstock responded that he would call a meeting. A day or two later Blackstock met with the employee representatives of the Pershing and Reserve plants. At the time, there was no repre- sentative for the Denoya plant, and pursuant to the Plan the Pershing and Reserve representatives appointed Blackstock to fill the vacancy. After this meeting, Blackstock telephoned Felton, using the respond- ent's private wire from Shidler to Bartlesville, and informed Felton that the three employee representatives wished to meet with him. Felton met with them the next day. According to Blackstock, Felton told them, "Now, fellows, I want to make it clear to you that according to the Wagner Act we can't have anything to do with your bargaining, and the old plan is to be done away with. But . . . you can join some organization or you can form an organization of your own, or you can unite with any organization you want to. Just so you-are organized and can bargain with the company. But as far as the management being in the representation like we have been, that is a thing of the past. We can't do that because the Wagner Law prohibits our doing so." Thereupon, Felton and the employee representatives decided that each of the employee representatives would call a meeting of the employees of his respective plant, "and see what steps the fellows wanted to take." Felton informed the employee representatives that before the respondent would meet with them again, it would require "proof that you have authority to represent the employees." On the next day Blackstock called a meeting of the employees of the Denoya plant. The meeting was held in Phillips Community Hall, a building owned by the respondent and used for various purposes, including safety meetings of the employees, dances, etc. Blackstock opened the meeting by stating that "the old plan had been done away with, ... the company couldn't recognize that plan any more, and it was up to us now to have some other form of bargaining ... we could join some organization, or form an asso- ciation, either one, or do anything we wanted to." He added that the employees "would have to have some other form of representa- tion how" and suggested that they elect either one or two repre- sentatives. After discussion, the meeting decided to "form an organization of their own right then and there and bargain with the company." Blackstock and Harry Averill were elected as repre- sentatives for the Denoya plant, Blackstock representing the operating department, and Averill the maintenance men. PHILLIPS PETROLEUM COMPANY 341 Two petitions which had been typed by Blackstock were then circulated . The first was signed by 13 "employees of Burbank District Construction Gang of the Gasoline Department" of the respondent and the other by 41 "employees of Denoya Plant of the Gasoline Department," the first designating Averill and the second Blackstock "as our agent to bargain and make any agreement with the management of the Phillips Petroleum Company." Blackstock thereafter telephoned Felton and told him "what we had done," and Felton said he would come down and meet with Blackstock and other representatives . About two or three days later, Felton and Fred Gleason , general field superintendent of the gasoline department, met with Blackstock , Averill, and representa- tives of the employees of two other gasoline plants . Felton had brought with him a form of contract , and after the petition was presented and a preliminary discussion was held, he read the con- tract to the employee representatives. The contract was signed by the employee representatives at the close of the meeting and was signed for the respondent about a week later by its vice president in charge of its natural gasoline department . Blackstock then posted the contract on the bulletin board in the Denoya plant. The contract, dated March 18, 1937, was entitled "working agree- ment" and was similar in form to other contracts executed at about this time between the respondent and the employees of other natural gasoline plants . This "working agreement" was stated to be between the respondent and "the employees of the Natural Gasoline Depart- ment in the Burbank District" and "for the purpose of establishing an understanding as to the conditions of employment ." It was for a yearly term, renewable automatically , but subject to cancellation on thirty days' notice "by either party to the other." The agreement covered wages and hours of work, seniority in lay-offs, reemploy- ment and promotions , and vacations with pay, and provided that "There shall be no cessation of work through strikes or lockouts during the term of this agreement." A rate schedule setting forth the wage rates to be paid to the different classifications was attached to the agreement. The agreement also established a grievance procedure, providing that in the case of any grievance , the "employee affected shall, him- self, or through a workers' grievance committee of his choice first seek adjustment of the issue with his immediate foreman." Upon failure to secure a satisfactory settlement , the employee or the griev- ance committee, as the case might be, could carry the issue through successive foremen to the head of the department . If no satisfactory adjustment was arrived at in the course of these appeals , the case could then be referred to a "settlement committee " to "consist-of one 283035-42-vol. 24-23 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD member to be appointed by the employee and one to be appointed by the Company." In the event of a disagreement, the two appointees could select a third member.28 The decision of the committee so composed would be final. After the execution of this agreement, employees, on several occa- sions, brought matters to Blackstock's "attention and what they would like and what they wanted me to do." Although there were no meetings of the employees generally, there were meetings of "small groups." In addition, there was posted on the bulletin board in the office of the Denoya plant an organization chart of the respondent's gasoline department. This chart, which remained posted in the Denoya plant until at least September 1937, carried the names of the employee representatives for the various gasoline plants, includ- ing those of Blackstock and Averill as the representatives for the Denoya plant. Blackstock left the Denoya plant in about September 1937 and, shortly thereafter, the employees in the plant held a meet- ing and elected R. W. Carlson as a representative to replace Black- stock. The continued functioning of the Employee Representatives and the posting of the chart which gave it official standing as the repre- sentative of the employees, clearly establishes that it was a labor organization within the meaning of Section 2 (5) of the Act, and" we so find.29 The Trial Examiner recommended the dismissal of the complaint in so far as it alleged interference with and domination of the formation and administration of the Employee Representa- tives. The Trial Examiner was in error in so recommending. An examination of the entire record and the circumstances of the origin and creation of the Employee Representatives, reveals that it was formed at the instance of the respondent and with the respondent's interference and under its domination. We have found above that in 1934, the first attempt of the organiza- tion of Local 309 was countered by the formation and the inauguration by the respondent of the Plan, and that the Plan thereafter operated under the respondent's domination and control and with the respond- ent's support. Subsequently, with the renewal of organizational.efforts on behalf of Local 309 in November and December 1935, the respond- 28 The agreement provided that, if the two members failed to agree on a third, then the third member could be appointed by the Commissioner of Conciliation of the U. S. Department of Labor. 20 Section 2 (5) defines the term labor organization as meaning "any organization of any kind . . . or employee representation committee or plan in which employees partici- pate and which exists for the purpose, in whole or in part, of dealing with employers con- cerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work." See Matter of American Manufacturing Concern and Local No. 6, Organized Furniture Workers, 7 N. L. R. B. 753; Matter of Union Die Casting Company, Ltd., et at., and International Union United Automobile Workers of America, Local No. 188, 7 N. L. It. B. 846. PHILLIPS PETROLEUM COMPANY 343' ent again exhibited its continued hostility toward Local 309, and dis- missed or transferred the leading members of Local 309. In the mean- time, the Plan continued to operate as the respondent's organization, with the open espousal and support of the respondent. The first step toward the formation of the Employee Representa- tives was taken by Felton, as assistant superintendent of the respond- ent, and a management representative under the Plan. Felton, on his own initiative, approached Blackstock, an official under the Plan and, learning that the Plan had not been functioning, suggested to Blackstock that the respondent desired either a revival of the Plan or the formation of some other organization. This suggestion, which in view of the relations of the parties we find was regarded by Black- stock as an instruction, was promptly carried out by Blackstock, who immediately took steps for the revival of the Plan. Thereafter, Felton met with Blackstock, who in the meantime had secured his own selec- tion as an employee representative under the Plan, and with other em- ployee representatives under the Plan. Felton, however, apparently objected to the revival of the mere shell'of the Plan, and decided with the employee representatives that some other method 'should be pursued. While even if such testimony were credited, we would find that the, respondent interfered with and dominated the formation of the Em- ployee Representatives,s° we give no credence to Blackstock's testimony that Felton had refused to deal with him and the other employee repre- sentatives because of the Act. Blackstock was an evasive and unreli- able witness and his testimony cannot be credited where it is in conflict with documentary or other evidence in the record. In March 1937,. the Act had been in force for over a year and a half and the respondent,, through its domination and support of the Plan and its other anti- union acts, had nevertheless, openly and publicly violated it. That the respondent did not regard the Act as valid, in March 1937, is fur- ther indicated by its letter of May 10, 1937, referred to above in which it publicly announced that because of the Supreme Court decisions sustaining the constitutionality of the Act, the respondent recognized the validity of the Act, and was withdrawing from further participa- tion in the Plan. In the light of the entire record, it is not credible' that a month prior to these decisions of the Supreme Court, the re- spondent recognized the validity of the Act in any form, and we find that Felton did not inform Blackstock that the respondent considered the Act a barrier to its further dealings with the Plan. Apart from this portion of the conversation between Felton and, Blackstock and the other employee representatives, it is clear that tha 10 See discussion below. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conversation, in view of the positions of the parties thereto, amounted to instructions from the respondent to employee representatives who had served under a Plan, interfered with, dominated, and supported by the respondent, to form an organization as a successor to the Plan. .Blackstock carried out these instructions by calling a meeting of the employees at the Denoya plant. He opened the meeting by stating that "the old plan had been done away with," added that the em- ployees "would have to have some other form of representation now," and suggested that they elect either one or two representatives. This suggestion was adopted by the employees and the Employee Repre- sentatives was formed. Irrespective of whether Blackstock was carrying out the respond- ent's instructions in calling the meeting of employees, we find that the employees' decision to form the Employee Representatives at this meeting was not the result of the free exercise of the right of self- organization guaranteed by the Act. The action taken by the em- ployees at this time must be evaluated in the light of the entire history of labor relations at the plant. They had been made aware of the respondent's hostility toward Local 309 and its desire that the Plan serve as their bargaining representative. Whatever the respondent had stated to Blackstock and the other employee representatives con- cerning the effect of the Act upon its dealings with the Plan, it had made no statement at all to its employees, and in no way indicated to the employees that its previously expressed preference for the Plan and hostility to an affiliated labor organization should no longer guide them in their actions. This circumstance coupled with the fact that the respondent had chosen to convey its wish for the formation of a labor organization to Blackstock, who in the minds of the employees had been associated with the Plan, was a clear indication to the em- ployees that the respondent desired them to continue their bargaining relations with the respondent under a labor organization similar to the Plan; indeed, the respondent's selection of Blackstock made it patent to the employees that he was speaking for the respondent and that the respondent desired the employees to accept whatever sugges- tion was advanced by him. An organization formed or chosen under such circumstances cannot be considered the free and independent choice of the employees. Consequently, the Employee Representa- tives must be regarded not as the employees' own organization but as the respondent's organization formed by the respondent for its em- ployees. As such an organization, it could not operate independently of the respondent, and was incapable of functioning as a real bargain- ing agency for the employees. We find that the respondent dominated and interfered with the for- mation and administration of the Employee Representatives, a labor PHILLIPS PETROLEUM COMPANY 345 organization of its employees at its Denoya plant, and thereby inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On March 18, 1937, the respondent entered into an agreement with the Employee Representatives, the terms of which we have described above. We have found above that the Employee Representatives is an employer-dominated labor. organization, and we further find that the respondent entered into the agreement of March 18, 1937, for the purpose of, and that the contractual relationship existing thereunder has been a means of, utilizing an employer-dominated labor organi- zation to frustrate the exercise by the respondent's employees of the rights guaranteed in Section 7 of the Act.31 - 2. The Production Department and the warehouse At the hearing, it was stipulated that at about the time of the execution of the working agreement between the respondent and the employees of the Denoya plant, "other working agreements of a gen- eral similarity were entered into by the respective representatives of the production department and the materials department of the Phillips Petroleum Company in the Burbank area. Proof of the authority of the representatives of these different departments was submitted to the management in the same general form as in the gaso- line department, such credentials being in the form of a signed paper or document." The agreements, however, were not introduced into evidence nor does the record disclose that any labor organization was established at either the production department or the warehouse at this time. Hence, we will make no findings with regard to the agree- ments or the events surrounding their execution. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent.de- scribed in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. E1 In Matter of Phillips Petroleum Company and Oil Workers International Union, Local No. 212, 23 N. L. R. B. 741, we found that a similar agreement entered into with em- ployees of the respondent as Individuals restricted the employees in their free choice of representatives , their right to self-organization and their freedom to engage in concerted activity, and thereby constituted Interference, restraint, and coercion by the respondent with the rights guaranteed to Its employees by Section 7 of the Act . If the agreement In the present case had been found to be an agreement with the employees individually rather than with a labor organization , the agreement would clearly have had the same legal effect as in the case cited. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we will order it to cease and desist therefrom, and to take certain affirmative action which we find necessary to effectuate the policies of the Act. We have found that the respondent has discriminated in regard to the hire and tenure of employment and the terms and conditions of employment of R. F. Gravitt, James Swicegood, W. J. Godat, and W. D. Hollenback. We shall, therefore, order the respondent to offer to Gravitt, Swicegood, and Godat immediate and full reinstate- ment to the respective positions held by them on the date of their discriminatory discharge or transfer, i. e., Gravitt and Swicegood to positions as roustabouts,32 and Godat to a position as a pumper in the Production Department in the Shidler-Burbank area, or if these are not available, to substantially equivalent positions. We shall require the respondent, where necessary, to displace employees who have succeeded to these positions, or to positions which either because of seniority or the practice of the respondent should have been offered to one of the above-named employees.33 Since it appears from the record that the warehouse is no longer in operation, we shall require the respondent to reinstate Hollenback to a position substantially equivalent to the one he held at the time of his discriminatory dis- charge, where necessary displacing any employee who has obtained a position which either because of seniority or the practice of the respondent should have been offered to Hollenback. We shall also order the respondent to make whole Gravitt, Godat, and Hollenback for any loss of pay they may have suffered by reason of the discrim- ination against them by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of the discrimination to the date of the offer of rein- statement, pursuant to our order, less his net earnings 34 during said period. However, since the charges were not filed until August 20, 82 By our order we do not, of course, preclude the respondent from offering Swicegood employment at the Shidler-Burbank area at a position similar to that which he now holds with the respondent In Kansas. 3, See Matter of Model Blouse Co., et at. and Federal Labor Union No. 21560, 15 N. L. R. B. 133. "By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent which would not have been incurred but for the discrimi- nation by the respondent and the consequent necessity of seeking employment elsewhere. See Matter of Crossett Lumber Co. and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State, county, municipal, or other work- relief projects are not considered as earnings but, as provided below in the Order, shall be deducted from the sum due to the employee, and the amount thereof shall be, paid over to the appropriate fiscal agency of the Federal, State, county, municipal, or other govern- ment or governments which supplied the funds for said work-relief project. PHILLIPS PETROLEUM COMPANY 347 '1937, over a year after the dismissals, no back pay will be ordered from the date of the dismissals to the date of the filing of the charges.35 Moreover, since the Trial Examiner recommended the dismissal of the complaint with regard to Godat, we will in accord- ance with our usual rule not require the respondent to reimburse Godat for the period from.the date of the issuance of the Interme- diate Report to the date of this decision 36 Since Swicegood has been continuously in the employ of the re- spondent, it is not necessary to order that he be made whole. We have found that the respondent discriminated in regard to the hire and tenure of employment of Herbert Anderson. At the hearing Anderson testified that he preferred his present position as a machinist to reinstatement to a position as a roustabout, the job he held at the time of his discharge in March 1936. Accordingly we will not order his reinstatement. We will, however, order the re- spondent to reimburse Anderson by payment to him of the expenses of securing such employment such as transportation, room, and board, and the cost of moving from the Burbank field to Wichita, Kansas 37 We have found that the respondent dominated and interfered with the administration of and contributed financial and other support to the Plan. We have also found that the respondent dominated and interfered with and contributed financial and other support to the Employee Representatives at the Denoya plant. On August 5 and 6, 1938, the respondent posted on various bulletin boards at the Denoya plant, the Production Department and the warehouse in the Shidler- Burbank area a notice to its employees which stated that the re- spondent "has withdrawn recognition of and disestablished its relations with the" Plan "as a bargaining agency." Since the re- spondent has already disestablished the Plan, it will accordingly not be necessary to order its disestablishment. The notice, however, makes no reference to the Employee Repre- sentatives. We find that the effects and consequences of the respond- ent's domination, interference with, and support of the Employee Representatives at the Denoya plant, as well as the continued recog- nition of the Employee Representatives at the Denoya plant as bar- °°Matter of Inland Lime and Stone Company and Quarry Workers International Union of North America, Branch No. 259, 8 N. L. R . B. 944. 30 Matter of E. R. Haffelfinger Company, Inc . and United Wall Paper Crafts of North America, Local No. 6, 1 N. L. It. B. 760; Matter of Kentucky Firebrick Company and United Brick and Clay Workers of America, Local Union No. 510, 3 N. L. It. B. 455 ; Matter of the Louisville Refining Company and International Association of Oil Field, Gas Well and Refinery Workers of America, 4 N. L. It. B. 844 ; Matter of Kuehne Manufacturing Company and Local No . 7191, United Brotherhood of Carpenters and Joiners of America, 7 N. L. It . B. 304. 3 Matter of Crossett Lumber Co . and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. It. B. 440 , footnote 34, supra. 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining representative for its employees, constitute a continuing obstacle to the free exercise by its employees of their right to self- organization and to bargain collectively through representatives of their own choosing. The Employee Representatives at the Denoya plant was created for the purpose of and has been utilized by the respondent as an instrumentality to defeat the rights of its em- ployees under the Act. Because of the respondent's illegal conduct with regard to the Employee Representatives, it is incapable of serv- ing the respondent's employees as a genuine collective bargaining agency. Moreover, the continued recognition of the Employee Rep- resentatives would be obstructive of the free exercise by the employees of the rights guaranteed to them by the Act. Accordingly, we will order the respondent to disestablish and withdraw all recog- nition from the Employee Representatives as the representative of its employees for the purposes of dealing with it concerning griev- ances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment.38 We have also found that the respondent entered into an agreement dated March 18, 1937, with the Employee Representatives at the Denoya plant as well as with representatives of other plants of the respondent, and that this agreement has been a means whereby the respondent utilized an employer-dominated labor organization to frustrate self-organization among and defeat collective bargaining by its employees. . Under these circumstances, any continuation, re- newal, or modification of the agreement would perpetuate the con- ditions which have deprived employees of the rights guaranteed to them by the Act and would render useless other portions of our remedial order. We, therefore, find it necessary in order to effectuate the policies of the Act, to direct the respondent to cease giving any effect to the agreement, or to any modification or extension thereof, or to any agreement between it and the Employee Representatives in the Denoya plant.39 The agreement, however, had,, as parties, repre- sentatives of other plants of the respondent other than the Denoya plant, and for the reasons stated above 40 we shall limit our order to the Denoya plant. 3° See N. L. R. B. v. Newport News Shipbuilding and Dry Dock Company, 60 Sup. Ct. 203; N. L. R. B. v. The Falk Corporation, 60 Sup. Ct. 307; N. L. R . B. v. Pennsylvania Greyhound Lines, Inc., 303 U. S. 261. 80 In footnote 31, supra, we pointed out that if the agreement was between the re- spondent and the employees as individuals , it would have restricted the employees in their free choice of representatives , their right to self-organization and their freedom to engrgo in concerted activity . Accordingly , in that event , we would have ordered the respondent to cease giving effect to the provisions in the agreement which so restricted its employees . See Matter of Phillips Petroleum Company and Oil Workers International Union, Local No. 212, 23 N. L. R. B. 741. 40 See footnote 27, supra. PHILLIPS PETROLEUM COMPANY 349 Where we have found that the record does not support the allega- tions of unfair labor practices set forth in the complaint, we will order the complaint dismissed in so far as it alleges such unfair labor practices. 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. 309, and Employee Representatives at the Denoya plant are labor organizations, and the Phillips Plan of Employee Representation was a labor organization within the meaning of Section 2 (5) of the Act. 2. By the making of anti-union statements, and by other acts the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 3. By discriminating in regard to the hire and tenure of employ- ment and the terms and conditions of employment of Herbert Ander- son, R. F. Gravitt, James Swicegood, W. J. Godat, and W. D. Hollenback, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 4. By dominating and interfering with the administration of and contributing financial and other support to the Phillips Plan of Employee Representation, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 5. By dominating and interfering with the formation and adminis- tration of the Employee Representatives at the Denoya plant, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair labor practices, and each of them, are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 8. The respondent has not discriminated in regard to the hire and tenure of employment of Herb Staten, within the meaning of Section .8 (3) of the Act. ORDER Upon the basis of the above findings of fact-and conclusions of law, the National Labor Relations Board hereby orders that the respondent, 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Phillips Petroleum Company, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Oil Workers International Union, Local No. 309, or any other labor organization of its employees by laying off, discharging, or transferring any of its employees, or in any other manner discriminating in regard to their hire and tenure of employment or any terms or conditions of their employment; (b) Dominating or interfering with the administration of the Phillips Plan of Employee Representation or with the formation or administration of the Employee Representatives at its Denoya plant, or with the formation or administration of any other labor organiza- tion of its employees, and from contributing financial or other support to said labor organizations or to any other labor organization of its employees ; (c) Giving effect to the agreement of March 18, 1937, or any modifi- cation or extension thereof, in so far as such agreement or modification or extension thereof relates to the Denoya plant, or to any other agree- ment between the respondent and the Employee Representatives at the Denoya plant; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid and protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to R. F. Gravitt, James Swicegood, and W. J. Godat immediate reinstatement to their former positions in accordance with the section entitled "The remedy" above, or if these are not available, to substantially equivalent positions, without prejudice to their sen- iority or other rights or privileges, and where necessary, displace any employee who may have succeeded to their former positions, or to any other position which because of seniority or the practice of the re- spondent should have been offered to any of the above-named employees ; (b) Offer to W. D. Hollenback reinstatement to a position sub- stantially equivalent to that which he held on the date of his discrim- inatory discharge, without prejudice to his seniority or other rights and privileges, where necessary, displacing any employee who has obtained a position which, either because of seniority or the practice of the respondent, should have been offered to Hollenback; PHILLIPS PETROLEUM COMPANY 351 (c) Make whole R. F. Gravitt, W. J. Godat, and W. D. Hollenback for any loss of pay they may have suffered by reason of the respond- ent's discrimination in regard to their hire and tenure of employment and the terms and conditions of their employment by payment to each of them of a sum of money equal to that which each would normally have earned as wages, in the case of Gravitt and Hollen- back, from August 20, 1937, to the date of the offer of reinstatement pursuant to this Order, and in the case of Godat from August 20, 1937, to September 13, 1938, and from the date of this Decision to the date of the offer of reinstatement pursuant to this Order, less their respective net earnings during these respective periods;* deducting, however, from the amount otherwise due to each of the said em- ployees, monies received by said employees during these respective periods for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Federal , State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (d) Reimburse Herbert Anderson for the expenses of securing his present employment as a machinist in Wichita , Kansas, such as for transportation, room, and board , and the cost of moving from the Burbank field to Wichita, Kansas; (e) Withdraw all recognition from the Employee Representatives at the Denoya plant as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes , wages, hours of employment , or other conditions, of employment , and completely disestablish said Employee Representa- tives at the Denoya plant, as such representative; (f) Post immediately in conspicuous places throughout the Denoya plant, the warehouse, and the Production Department in the Shidler- Bnrbank area , and maintain for a period of at least sixty (60).. con- secutive days from the date of posting, notices to its employees stating (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), (c ), and (d) of, this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), (c), (d), and (e) of this Order; and (3 ) that the respondent's employees are free to become or remain members of Oil' Workers International Union, Local No. 309, and the respondent will not discriminate against any employee because of membership or activity in that organization ; (g) 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 therewith. 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (3) of the Act with respect to Herb Staten, and within the meaning of Section 8 (2) of the Act with respect to the formation and administration of a labor organization known as the Employee Representatives, among its employees at its warehouse and Production Department in the Shidler-Burbank area. MR. WILLIAM M. LEIs1RsoN took no part in the consideration of the above Decision and Order.